author: REDMANN, Judge. BOUTALL, Judge,

text:
    Witham DUFOUR and Sidney A. Rovira et al. v. Houston L. WOOD, Jr., et al.
    No. 6992.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Jorda S. Derbes, Derbes & Derbes, M. Arnaud Pilie, Pilie, Pilie & Landry, New Orleans, for plaintiffs-appellees.
    William M. Campbell, Jr., W. Matthew Campbell, III, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA, BOU-TALL, MORIAL and BEER, JJ.
   REDMANN, Judge.

This is a class action for a declaratory judgment concerning title to land sold in 1916 for city taxes to Third District Land Company and acquired from the tax purchaser by the husband of a grand-daughter of one of the tax debtors, for precisely the price of redemption but by act which took the form of a cash sale without warranty, executed six days (including a weekend) after the period for redemption had passed.

The trial court held that the heirs of the tax debtors owned the property, on the theory that the purported cash sale was but a redemption of the property which therefore restored it to pre-tax-sale ownership. We affirm.

Facts and Factual Inferences

Antoine Rovira bought the land here involved (lots 2, 3 and 6 of Section 14 in the Third District of New Orleans) for $63.68 at an 1861 auction (at which he also bought another tract in Section 5). Antoine died in 1871.

On July 26, 1916, property assessed to “Heirs of A. Rovira and wife” and described as lots 2, 3 and 4 (sic) of Sec. 14, etc., was sold for 1913 taxes to Third District Land Co., Ltd. for the price of $67.50. That price included the tax of $41.80, interest $12.25, advertising $7.45, costs $1.00, and notary’s fee $5.00.

On Wednesday, August 1, 1917, by act before notary Gabriel Fernandez, Jr., Third District Land Co., Ltd. transferred lots 2, 3 and 6 (sic) to Houston L. Wood (husband of Claire Valloft), by the use of a printed form of cash sale in which the printed warranty clauses were replaced by the typewritten clause “without any warranty whatsoever”. The price of this transfer was the price for redemption of the tax sale under then-effective La.Const.1898 art. 233: “the price given, including costs, and twenty per cent thereon”. The $81.00 price was exactly the $67.50 price including costs at the tax sale plus 20% thereof, or an added $13.50. The date of this formal notarial act of transfer was six days (including a week-end) beyond the “space of one year” during which Const. 1898 art. 233 made tax sales redeemable; however, a typewritten “JULY” in the printed form’s blank for the month bore the handwritten superscription “August”. The factual inference (presumably that of the trial judge) is therefore permissible, from all the circumstances, especially that a corporation should transfer land it bought at tax sale for its redemption price, that the agreement to transfer was made some time before the “space of one year” for redemption, and that the formal act of transfer was merely delayed by the necessary paperwork.

On August 6, 1917, the same notary Fernandez, before whom the sale to Wood was passed five days earlier, went with John Rovira, “representing the Heirs of A. Rovira and wife,” to redeem the same lots 2, 3 and 6 from a July 23, 1917 sale to A. J. Kolwe for state taxes of 1916 assessed in the name of Heirs of A. Rovira and wife. Kolwe, however, according to Fernandez’s proeés verbal, did not appear at his place of business for over an hour, as a result of which Fernandez executed and recorded a proeés verbal reciting the payment of the redemption amount to the State Tax Collector (as authorized by La.Acts 1898 No. 170 § 65). Attached to that proeés verbal was the proposed act of cash sale “without any warranty whatsoever” which Fernandez had prepared to accomplish the “redemption” from Kolwe, the same form as the no-warranty cash sale form of the Third District to Wood transfer, whose character as sale or redemption is the heart of this lawsuit. However, unlike the Third District to Wood form, this form recited the names of the heirs, all of whom were said to be represented by John E. Rovira, a resident of Jefferson City, Missouri, “temporarily sojourning in New Orleans”. (John’s authority to act for the other heirs is not shown.) Thus the “cash sale” attached to the proeés verbal is ambivalent in its effect on our question, tending to prove, on the one hand, that our “cash sale” for the redemption price was intended as a redemption (since that form was used in both cases) but, on the other hand, that a redemption in favor of the heirs of Rovira was not intended (since they are made the “vendees” in the Kolwe form but not in the Third District to Wood form).

Other proven facts include that the subject property is listed in some and omitted in some succession proceedings of various of the heirs of Antoine Rovira; that Wood purchased several other pieces of real estate in his own name, title to none of which remained in his name at his death (near penniless); that the subject property has at all times subsequent to the Third District to Wood transfer remained assessed in the name of heirs of Rovira; and that taxes on the property have been paid over the years, although the record does not show by whom.

Preliminary

This matter was first heard by a three-judge panel of this court which proposed non-unanimously to reverse the trial court’s judgment in favor of plaintiffs. That panel ordered the matter resubmitted to a five-judge panel “as required” by La.Const.1974 art. 5 § 8(B). Defendants argue that resubmission was not required, in view of art. 14 § 23’s provision that “actions . existing on the effective date of this constitution shall continue unaffected.” Defendants cite Traigle v. P. P. G. Industries, Inc., 3 Cir. 1975, 315 La.App. 859, so ruling, but that ruling was reversed by the supreme court, 317 So.2d 625.

Res Judicata

Defendants filed in this court an exception of res judicata or, alternatively, estop-pel by judgment, on the basis of a monition proceeding which they filed while this suit was in progress and in which they obtained a judgment against a lawyer appointed curator ad hoc for the heirs of Thompson (see n. 1) and the heirs of Rovira (alleging inability to find any of the heirs). The judgment was allegedly obtained 17 days after trial of this suit but 14 days before judgment in this suit in the trial court; however, our record does not contain any such judgment. We therefore may not consider this exception; C.C.P. 2163.

The “Cash Sale” a Redemption

The evidence supports the trial court’s conclusion that the Third District to Wood transfer was intended as a redemption. The supportive evidence includes that the price Wood paid to the corporate purchaser at the tax sale was precisely the amount required to redeem; that notary Fernandez used the printed form of a cash sale (with warranty clauses replaced by “without any warranty whatsoever”) for one other act known to be an act of redemption; that Wood was the husband of a granddaughter of one of the tax debtors and was to that extent identifiable with the tax debtors; that the Rovira heirs five days after Wood’s “purchase” redeemed the property from another tax sale; and that Wood never disposed of this property although he apparently possessed nothing but a ten-year-old automobile at his death in 1969. This evidence supports the conclusion that Wood procured the transfer from the corporate purchaser by exercising the tax debtors’ right to redeem.

We conclude that when any person who is identifiable with the tax debtors exercises the tax debtors’ right of redemption by purchasing from the tax sale purchaser at the redemption price, the purchase must be deemed a redemption for the benefit of the tax debtors, If it were the intention of the tax debtors (all the then heirs of Rovira) to donate their right of redemption to Wood, that intention could only be effected by a donation in authentic form. Moreover, the redemption just five days later by one of the Rovira family of a sale for state taxes not only casts doubt on any family intent to donate its right of redemption to Wood; it also compels the inference that the family had not abandoned (or overlooked) this property, and therefore — if, indeed, Wood fraudulently exacted a sale to himself (and, by operation of community property law, his wife) rather than also intended a redemption as did the tax-sale purchaser in selling for the redemption price — our case is distinguished from Staples v. Mayer, 1892, 44 La.Ann. 628, 11 So. 29 (in which a complete stranger’s fraud in posing as a creditor of the tax debtor and thereby obtaining a transfer to himself from the tax purchaser for the redemption price was held no fraud against the tax debtors, who had done nothing towards redemption of the property).

We first note that, unlike Hodgeson v. McDaniel, 1957, 233 La. 180, 96 So.2d 481, this is not a case of a third party’s rights being involved. Accordingly, the public records doctrine does not apply and does not make any claim “utterly null and void,” C.C. 2266.

We second observe that the parol evidence exclusionary rule is as applicable to acts under private signature as to authentic acts, C.C. 2238 (see also C.C. 2242). Thus the circumstance that the Third District to Wood transfer is by authentic act is not material to our inquiry; the parol evidence rule is no stricter because of that circumstance.

The parol evidence rule has, in any event, but limited application to our case. Plaintiffs need not show that Wood acted for them or their ancestors. All that plaintiffs need show is that Wood redeemed the property rather than bought it, and it is the law that declares the result of that redemption. The principal element in the showing of redemption is not parol evidence but evidence within the very act of transfer from Third District to Wood, namely the price: the price is the price of redemption and not of sale. The second element similarly is recited in that act of transfer, namely that Wood was the husband of Claire Valloft. If (as plaintiffs’ counsel suggest) we suppose a timely suit to rescind the Third District to Wood transfer for lesion beyond moiety (C.C. 2589), would any court refuse to receive parol evidence to show that it was a redemption?

A tax sale purchaser from whom redemption is sought:

“is not called on to make a cession or transfer of his rights in favor of any other person. All that he has to do on payment [of the price of redemption] made to him is to surrender the rights which he had acquired by his purchase, leaving the result of that surrender or relinquishment to inure to the party or parties who by law would be entitled to the benefit of the same. . . .We think that anyone may, for the advantage of the owner, as negotiorum gestor, make payment for him of the redemption money, even without his knowledge. Civ. Code, arts. 2133, 2134.” State v. Register of Conveyances, 1904, 113 La. 93, 36 So. 900.

As doubtless did the trial judge, we deem it established that Wood intended either to act for the Rovira family in redeeming the property for the family, or to usurp the family’s right to redeem in order to appropriate the family’s property to himself, at the same time that the family itself (unlike the tax debtors in Staples v. Mayer, supra), through John Rovira, was redeeming the property from another tax sale and therefore had not abandoned the property to the tax purchaser.

In either case, we hold that Wood’s act was one of redemption of the property from the tax sale, the result of which was to restore the property to the tax debtors.

Affirmed.

BEER, J., concurs in result.

BOUTALL, J., dissents.

BOUTALL, Judge,

dissenting.

This is a title dispute brought by the heirs of Antoine Rovira and his wife against the heirs of Houston L. Wood involving a tract of land in the Third District of the City of New Orleans. The deraignment of title is rather complex, but the issue narrows down to the effect of a Notarial Act passed before Gabriel Fernandez, Jr. dated August 1,1917, purporting to be a sale from the Third District Land Company, Ltd. to Houston L. Wood of the subject property described as lots Nos. 2, 3 and 6, in Folio 283, Section 14, Township 12 South, Range 12 East, containing 97 & 97/100 acres. The Rovira heirs claim title based upon an Act of Sale dated February 20, 1861 from the City of New Orleans to Antoine Rovira, and contend that the above described act was only a redemption of a tax sale, and Houston L. Wood was acting as agent or negotiorum gestor for the Rovi-ra heirs. The Wood heirs contend that the act of sale is simply what it purports to be and rely upon it as conveying title to Houston L. Wood. The trial court declared title to be in the Rovira heirs and the Wood heirs have appealed. The majority of this court would affirm, and I would reverse.

Because of the deaths of the parties involved in the circumstances surrounding the Act of August 1, 1917, there is no direct testimony offered in connection therewith. In order to understand the contentions of the parties, I relate the following summary of events based upon-documents offered in evidence.

Antoine Rovira acquired the subject property, lots 2, 3 & 6 of Section 14 by Act of Sale from the City of New Orleans, dated February 20,1861, pursuant to a public auction at which he, being the highest bidder, paid the price of $63.68. He also acquired other real estate consisting of a similar tract in Section 5 and several city squares, all in the Third District of New Orleans. Antoine Rovira died December 14, 1871 and a succession was opened a week later, however there is no judgment of possession contained therein. Subsequently, the property assessed in the name of Antoine Rovira, under a vague description, was adjudicated to the State of Louisiana for unpaid taxes of the year 1882. By Act dated March 5, 1901, the widow and children of Rovira gave a power of attorney to Louis E. Valloft, enabling him to redeem or reclaim the property previously sold at tax sale. There then ensued a series of lawsuits filed by the Roviras and others concerned with the property. I refer to Dockets No. 70,105 and 77,407 of the Civil District Court of the Parish of Orleans, In Re: Quaker Realty Company; In Re: Valloft, 127 La. 208, 53 So. 526 (La.S.Ct. 1910) and Docket No. 15088 of the Docket of the United States District Court for the Eastern District of Louisiana. The result of all of this litigation is to leave the title to the subject tract very much in doubt. I point with particularity to a state auditor’s deed dated October 26, 1903 in favor of a certain Alfred Thompson, based upon the tax sale for 1882 taxes under a vague inscription, but which purports to be the subject property, and to the suit of the Rovira heirs directly against Alfred Thompson, Docket No. 86,482 of the Civil District Court of the Parish of Orleans. This suit did not go to judgment, and apparently was abandoned.

As a result of the abovementioned law suits titles to the similar tract in Section 5 and to the squares of ground owned by Rovira were eventually settled, but none of them settled the validity of the 1882 tax sale and the subsequent State Auditor’s Deed to Thompson. During this period of time, the property was apparently not carried upon the tax rolls. Later for some reason not ascertainable from the record, the property was again placed upon the tax rolls in 1913 in the names of “Heirs of A. Rovira and wife.” The City taxes for the year 1913 were not paid and this resulted in a tax sale by the City of New Orleans to the Third District Land Company on July 26, 1916. Subsequently the Third District Land Company conveyed the property to Houston L. Wood by the Act of Sale before Fernandez dated August 1, 1917, which is the conveyance in question before us.

Shortly thereafter, the property was sold for the 1916 State Taxes to a certain A. J. Kolwe on June 23, 1917. The same Notary Public, Gabriel Fernandez, Jr., who passed the Act of Sale to Wood, attempted a redemption of the State Tax sale with John Rovira, one of the Rovira heirs, on August 6, 1917 and made proces-verbal relating that Kolwe refused to redeem. Accordingly, on August 29, 1917 the property was redeemed by virtue of paying the redemptive amount to the State Tax Collector.

It should be noted that from the time of the sale to Wood, there has been no alienation in Wood’s name, so that the property stands upon the public record in the name of Wood. At the same time, there has been no change in the assessment of the property, and the property has stood assessed in the name of Heirs of A. Rovira and wife from 1913 to the present date. The record does not show who paid the taxes during this period of time, however it does disclose a tax sale for the City Taxes of 1929 to the City of New Orleans and a cancellation of that tax sale for erroneous adjudication on June 22, 1960. The record also shows a redemption from the City of New Orleans to the heirs of A. Rovira for 1921 taxes dated that same date. Lastly, we call attention to a redemption from Andrew J. Kolwe to the heirs of Rovira dated August 16, 1933.

With this background, let us now proceed to consider the issue on this appeal. It is elemental that the Rovira heirs, being plaintiffs herein, bear the burden of proving a superior title to the defendants.

An examination of the questioned act of sale to Houston L. Wood discloses that it is on the usual form of cash act of sale used by notaries in the area. The only thing noteworthy about it is the consideration stated, the sum of $81.00 cash. That sum closely conforms to the amount necessary to effect a redemption of the property. The trial court found “That the actions of Mr. Wood were on behalf of all of the co-owners, and that his actions amounted to a redemption and was not in the nature of a sale.” In support of this finding, the Rovira heirs introduced evidence to show that one of the children of Antoine Rovira and wife was Josephine Rovira Witham. In turn Josephine had a daughter Regina Witham Valloft (wife of the Valloft holding the Power of Attorney referred to above) and in turn Regina had a daughter Claire Valloft. Houston L. Wood was married to Claire Valloft April 14, 1917.

It is contended in argument that the Rovira property had been looked after by Valloft because of his marriage to the daughter of Josephine Witham, and after Valloft died the burden of looking after the property was designated by Regina Witham Val-loft to her son-in-law Wood. To prove this proposition, the Roviras attempted to introduce testimony of two witnesses, but this testimony was correctly excluded from evidence by the trial judge.

Although the trial judge did not specify upon what basis he reached his conclusion that Wood acted for the Roviras, an examination of the record discloses the following evidence in support thereof which I summarize: 1.) The price of the cash act of sale is consistent with the amount necessary to redeem the property; 2.) Houston L. Wood was the husband of one of the prospective Rovira heirs; 3.) the redemption of the property by John Rovira and Gabriel Fernandez, Jr., the same notary public and attorney who passed the Wood act, at the same general time frame as the Wood act; 4.) the tax assessment has continued to remain in the name of Heirs of A. Rovira and wife since 1913 and the later tax re-demptions mentioned above; 5.) the property was included in the successions of some Rovira heirs at a later date and 6.) the proffered testimony of witnesses tending to show circumstantially a handling of the Ro-vira property by Wood.

In contradiction of this evidence I note the following: 1.) The act in favor of Wood is regular notarial act of sale and not in the form of a redemption; there is no evidence as to value of the property at the time in question, but it is noted the acquisition was for $63.68, that the property was vacant marsh land and because of the prior tax sales, auditor’s deed and lawsuits had a very litigious title; 2.) at the time of the act Wood was not an heir, nor was his wife an heir, but only a prospective heir 3.) there is no written evidence which would indicate the ultimate purpose of Fernandez, the attorney; (it is as easy to presume that Fernandez was attempting to assist Wood in acquiring title, and hence effected the redemption with John Rovira to aid Wood, as it is to assume that Fernandez was effecting a redemption on behalf of the Rovi-ra heirs and used Wood as a method of helping the Rovira heirs) 4.) the property has remained in the title name of Wood for an equally long period of time and there is no proof as to who paid the subsequent taxes; 5.) the subject property was not included in the successions of a number of the Rovira heirs; 6.) there is evidence to show that Wood had property dealings on his own, which would tend to indicate that he might desire to acquire the property for himself, and had the means to do so.

In considering the complex and conflicting evidence before us, we must first note that the document in question is on its face an authentic act of sale conveying title to Houston L. Wood.

It has been recorded for more than 22 years as provided in L.R.S. 13:3727 and more than 30 years as provided by L.R.S. 13:3729 and 3730. It qualifies as an ancient document and as such there is a prima facie presumption of its genuineness and it is deemed prima facie proof of its contents. Under these statutes, the burden of proof is upon those who assail an ancient document to overcome these presumptions. Watkins v. Zeigler, La.App., 1962, 147 So.2d 435; Roy v. Elmer, La.App., 1963, 153 So.2d 209; Houston v. Mondy, La.App., 1974, 306 So.2d 91. See also Osborn v. Johnston, La.App., 1975, 308 So.2d 464.

In attempting to overcome the recorded act of sale the plaintiffs are also faced with other pertinent requirements. It is a basic premise of Louisiana Law that the terms of an authentic act may not be varied by parol evidence and are to be considered as they purport to be with only few exceptions. C.C.P. Art. 2236, Franton v. Rusca, 187 La. 578, 175 So. 66 (1937); Cernich v. Cernich, 210 La. 421, 27 So.2d 266 (1946). Facts affecting title to real estate are required to be in writing and a title may not be established by verbal testimony. C.C.P. Art. 2275, Ceromi v. Harris, 187 La. 701, 175 So. 462 (1937); Cookmeyer v. Cookmeyer, La.App., 1973, 274 So.2d 739. This rule applies in the case of agency where real estate is concerned. L.C.C. Art. 2992; White v. Batson, La.App., 1975, 317 So.2d 205; King v. Hutchinson, La.App., 1974, 303 So.2d 534 Bray v. Boyd, La.App., 1973, 286 So.2d 508. Parol evidence is inadmissible to prove that the person whose name appeared in a deed was only the agent and not the purchaser. Serio v. Chadwick, La.App., 1953, 66 So.2d 9. Lawrence v. Claiborne, 215 La. 785, 41 So.2d 680 (1949); Hackenburg v. Gartskamp, 30 La.Ann. 898 (1897).

The parol evidence rule applies not just to the oral testimony of witnesses, but it also applies to documents of an extraneous nature, and is a rule of substantive, not evidentiary law. See Wigmore on Evidence, Sec. 2400. There are no allegations of fraud involved in this case. We are faced with the question of overturning an authentic Act of Sale on the public records for more than 50 years on the basis of circumstantial documentary evidence, and the conclusions that may be drawn therefrom. As set out above, a comparison of the evidence indicates that the evidence is not in such status that the judge can say that the fact of agency is more likely to exist than the opposite fact. In this case, one conclusion is as likely as the other, and the court cannot overturn an authentic act upon such circumstantial evidence.

Nevertheless, the Rovira heirs urge to us that cases involving tax sales and redemptions differ from the usual laws relating to title to property, and in this regard they refer to the following cases: Alexander v. Light, 112 La. 925, 36 So. 806 (1904); Gulf Oil Corp. v. Olivier, 412 F.2d 938 (5th Cir. 1969); In Re Berry, 148 So.2d 313, La.App., 1962; Bossier v. Herwig, 112 La. 539, 36 So. 557 (1904); State ex rel. Busha’s Heirs v. Register of Conveyances, 113 La. 93, 36 So. 900 (1904); Newman v. McClure, 62 So.2d 126, La.App., 1952; White v. White, La.App., 1970, 233 So.2d 289. On the basis of these cases they contend that Houston L. Wood was a negostiorum gestor, that he possessed an identifiable interest as the husband of a co-heir of the property, and that his act, whether it be called a redemption or an act of sale, was for the benefit of all of the Rovira heirs. I have examined the cases referred to and find none of them to be factually consistent with this case. I quite agree that our courts have stated that the laws regulating tax sales and redemption of property sold at tax sales are sui generis and constitute a system to which the provisions of our Civil Code have little or no application (See In Re: Berry, supra) but at the same time, the law must have some consistency to it and some basis of legislative purpose and intent. I note that in each of the cited cases there was a definite showing of the interest of the redeeming party, and in some cases there was simply outright fraud. In our case the evidence simply does not support a finding that Wood was a party at interest, or that his relationship to a co-heir, at that time Josephine Rovira Witham, his grandmother-in-law, was so close as to consider his actions standing alone as being done on behalf of those heirs.

For the reasons above assigned, I would reverse the judgment of the trial court and render judgment in favor of the appellants, the heirs of Houston L. Wood, and against the plaintiffs-appellees, the heirs of Antoine Rovira and wife, declaring the heirs of Houston L. Wood to be the true and lawful owners of the property.

Therefore, I respectfully dissent.

      . In 1882 property assessed to Rovira was adjudicated to the state for non-payment of taxes. However, the only description was “a certain portion of ground in the Third District of the City of New Orleans designated as Prairie Land in front of Gentilly Blvd.” The state in 1903 sold by the same description to Alfred Thompson, who judicially admitted (in New Orleans Lake Shore L. Co. v. Thompson, No. 15088, U.S. District Court, E.D.La., a suit over Sec. 5 in which the tax adjudication was declared a nullity) that he added lot and section numbers and acreages to the description. We hold the description inadequate to transfer title: except that it tells of land in the third district, it does not describe any particular land at all. Thompson was thus not the owner of the land at the time of its sale for city taxes in 1916. That the Rovira heirs may have earlier than 1916 abandoned their suit filed against Thompson to decree the null sale a nullity does not make the null sale valid.

      . The spurious Constitution of 1913 (see State v. American Sugar Rfg. Co., 1915, 137 La. 407, 68 So. 742), art. 233, made no attempt at changing this wording.

      . Included among them was Mrs. Josephine Rovira, widow of Charles Witham. Josephine was the mother of Regina Witham, wife of Louis E. Valloft, and grandmother of Claire Valloft, wife of Houston L. Wood.

      . The heirs in 1901 had given a power of attorney to Louis E. Valloft to recover lands for them, but Valloft died April 11, 1914. No similar power of attorney to John E. Rovira (or to Wood) appears in the record. Valloft was married to Regina Witham, daughter of Josephine Rovira, as noted above, and their daughter Claire was the wife of Wood. Claire was 17 years old when her father died in 1914, his succession petition avers; thus she was about 20 when the Third District to Wood transfer occurred, and she was the oldest of the Valloft children.

      . Kolwe later did execute a “redemption”, not in the form of a cash sale but in a typed form reciting he did “redeem, transfer, sell, convey, assign and quit claim unto the heirs of A. J. Rovira . . . any and all rights, title and interest which ... he may have had or now has by reason of said tax sale . . . .”

      . See also Gulf Oil Corp. v. Olivier, 5 Cir. 1969, 412 F.2d 938, citing Louisiana authorities in concluding that a redemption by a husband benefitted his wife, who was the tax debtor.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Mary Constance Hanes wife of John R. PORTER v. John Richard PORTER.
    No. 8509.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Anthony L. Marinaro, New Orleans, for plaintiff-appellee.
    Gregory F. Gambel, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and MOR-IAL, JJ.
   REDMANN, Judge.

Plaintiff moves dismissal for untimeliness of defendant’s appeal from a default judgment on rule for past due alimony.

No notice of the judgment was ever served upon defendant, and defendant was not personally served with plaintiff’s rule. Defendant was in Nigeria; service was effected through his prior counsel of record (see Imperial v. Hardy, La.1974, 302 So.2d 5) who promptly withdrew. Defendant filed no exceptions or answer.

La.C.C.P. 1913 requires service of “[n]ot-ice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer.” Under C.C.P. 1974, therefore, the time for applying for new trial would not begin to run until notice is served, and under C.C.P. 2087 the time for appealing would not begin to run.

Thus the appeal is not untimely.

Motion denied.


author: LEMMON, Judge.

text:
    BAYOU LANDING, LTD. v. CITY OF KENNER, Mayor Joseph S. Yenni, Chief of Police Salvador J. Lentini, Councilmen Richard F. Stoulig, Huey P. Fassbender, Larry J. Hooper, Anthony J. "Muss" Bertolino, Thomas LeBlanc, Keith L. Woodward and Raoul A. Galan, Jr.
    No. 7302.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      McDonough & McDonough, Birch P. McDonough, New Orleans, for plaintiff-appellant.
    Trombatore & Vondenstein, Kenner, James S. Conner, Jr., Metairie, for defend- ’ ants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

When this mandamus proceeding to compel the City of Kenner to issue an occupational license was before the court earlier, we passed on some of plaintiff’s contentions as to whether the City could exercise discretion in issuing such licenses, but were unable to determine the validity of the license application which was signed by “William M. Frank, Mgr.” See La.App., 335 So.2d 531. We remanded the case, among other reasons, for evidence necessary to determine whether that signature fulfilled the requirements of § 10-111, which provides in pertinent part as follows:

“ * * * Where an individual is an applicant for a license required by this article, the application must be signed by him; where a partnership or an association of persons by a member of the firm; and where a corporation, by the proper officer thereof. * * *"

On remand plaintiff offered no evidence as to Frank’s authority or status as a proper officer, but took the position that the City, in receiving the application from Frank and approving it as to zoning, tacitly waived any objection in this regard.

Above the signature line on the application form is the statement “I affirm that the information given in this application is true and correct”. The apparent purpose of § 10 — 111 is to require the disclosure of all necessary information and to have that information verified by the signature of the applicant himself or of an officer authorized to make statements on behalf of a corporate applicant. The section also provides a criminal penalty for any intentional false statement as to any material fact in the application.

We hold that § 10-111 requires, where the applicant is a corporation, that the application be signed by a duly authorized officer. The record in this case fails to establish that Frank was a duly authorized officer of plaintiff corporation. The fact that the City received the application and approved it as to zoning does not estop the City from thereafter questioning the signatory’s authority and status as a proper officer. We hold that the application was properly declined as deficient.

Accordingly, the judgment dismissing plaintiff’s petition for a writ of mandamus is affirmed.

AFFIRMED.

BEER, J., concurs in the result.

      . We also remanded for evidence as to whether § 10-87 applies to coin-operated machines mentioned in the application, since that section does contain requirements as to the qualifications of the applicant.


author: GULOTTA, Judge.

text:
    CITY AUTO WRECKERS, INC. v. Frank W. WRIGHT and Government Employees Ins. Co. and Ernest Lewis.
    No. 8106.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Richard A. Najolia, New Orleans, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hulse & Nelson, Dominic J. Gianna, New Orleans, for defendants-appellants, Frank W. Wright and Government Employees Ins. Co.
    Harris, Stampley, McKee, Bernard & Broussard, Terrel J. Broussard, New Orleans, for defendant-appellee, Ernest Lewis.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiff’s action grows out of a truck-automobile accident. Defendant Frank W. Wright appeals from a judgment against him in favor of plaintiff and from the dismissal of plaintiff’s demand and Wright’s third party demand against a codefendant, Ernest Lewis. Wright complains of the trial court’s failure to find that Lewis’s negligence was the sole cause of the damage. Quantum is not in issue.

The accident occurred on Old Gentilly Road, a street consisting of two westbound and two eastbound traffic lanes. Plaintiff’s truck was traveling on the inside eastbound lane (closer to the center of the street) and was following a vehicle driven by defendant Ernest Lewis. The Lewis vehicle executed a left turn across the westbound lanes of traffic in front of the Wright vehicle, traveling in a westerly direction in the right or outside lane of Old Gentilly Road. The plaintiff truck continued traveling in an easterly direction. In an attempt to avoid striking the left-turning Lewis vehicle, Wright swerved his automobile to the left and struck plaintiff’s vehicle.

In reasons for judgment, the trial judge concluded that Wright’s failure to reduce his 35-mile-per-hour speed upon first observing the eastbound Lewis vehicle turning left at an approximate distance of 200 feet in front of him constituted negligence which was the proximate cause of the accident.

On appeal, defendant Wright seeks to exonerate himself from liability by claiming that he was placed in a sudden emergency by the Lewis vehicle which turned approximately 100 feet from his oncoming automobile. According to Wright, his actions — reducing his speed and swerving to the left— were reasonable under the circumstances and resulted in the unavoidable striking of plaintiff’s oncoming truck.

We do not agree. The record supports the trial court’s conclusion that the Lewis vehicle executed a left turn across the two westbound traffic lanes of Old Gen-tilly Road at an approximate distance of 200 feet in front of the approaching Wright vehicle, which was traveling at a speed of 35 miles per hour. For reasons unexplained by defendant Wright, no attempt to reduce speed or take evasive action was made by Wright until he had traveled an approximate distance of 100 feet. The trial judge observed that this inordinate delay in responding to the slow-moving, left-turning Lewis vehicle constituted negligence on the part of Wright which proximately caused the accident. In the absence of manifest error, we will not disturb the trial judge’s finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).

“ * * * I would be inclined to believe that and I feel that the real cause of this accident is not the left turning vehicle but the failure to be vigilant in controlling of the vehicle on the part of the driver of the Cutlass, Mr. Wright ... * * *”

It is true, as pointed out by defendant Wright, that a left-turning motorist must ascertain by careful observation that the maneuver can be executed safely and without danger to oncoming traffic and the burden rests on the left-turning motorist, when an accident occurs, to show his freedom from negligence. Nevertheless, we conclude, as did the trial judge, that defendant Lewis was not negligent under the circumstances. Lewis testified that before executing his turn, he had waited for oncoming traffic to pass and that the nearest approaching car was at a distance of at least a block away as he executed his maneuver. He further stated that Wright’s vehicle had struck his car before hitting the truck and that at the time of contact between the two cars prior to the collision with the truck, his (Lewis’s) car was “half a foot off the highway”. This testimony forms a reasonable factual basis for the trial judge’s exoneration of Lewis from negligence.

The evidence considered, we conclude the sudden emergency in which defendant Wright found himself was not caused by the left-turning Lewis vehicle 200 feet in front of the approaching Wright vehicle, but was caused by defendant’s own failure to respond immediately to the left-turning vehicle. His failure to immediately reduce his speed was unreasonable under the circumstances and constitutes negligence on his part which was the proximate cause of the accident. Accordingly, defendant cannot avail himself of the doctrine of sudden emergency. See Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972); Jones v. Fontenot, 341 So.2d 620 (La.App. 4th Cir. 1977).

For the reasons stated above, the judgment is affirmed.

AFFIRMED.

      . In oral reasons for judgment, the trial judge stated:

      . Kimball v. Landreneau, 170 So.2d 665 (La.App. 1st Cir. 1964); Washington Fire & Marine

        Insurance Company v. Firemen’s Insurance Company, 232 La. 379, 94 So.2d 295 (1957).

      . U. S. Fidelity & Guaranty Co. v. Bergeron, 148 So.2d 162 (La.App. 1st Cir. 1962).


text:
    H. Lanier RICHEY v. VENTURE OIL & GAS CORPORATION (H & W Oil & Gas Company, Inc.).
    No. 8511.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Gordon, Arata, McCollam & Watters, Blake G. Arata, Andrew L. Gates, III, New Orleans, for plaintiff-appellee.
    Monroe & Lemann, Richmond M. Eustis, New Orleans, for intervenor-appellant, H & W Oil & Gas Co., Inc.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

We are confronted with a question involving ranking of privileges.

The relevant facts are as follows. Venture Oil & Gas Corporation executed a promissory note dated September 10, 1974, in the principal sum of $300,000.00 payable to The Merchants National Bank of Mobile for a loan in that sum made by the bank to Venture. The note was secured by the pledge of a $1,000,000.00 collateral mortgage note and collateral mortgage dated August 29, 1974. The property mortgaged was a State oil lease in Plaquemines Parish where oil drilling had been in operation.

On January 26, 1976, the bank transferred, sold and assigned to plaintiff the hand note of September 10, 1974, secured by the August 29, 1974 collateral note and mortgage. Both notes were negotiated “without recourse” by the bank to plaintiff.

As holder and owner of the September 10 promissory note, plaintiff, after default in payment, filed this suit for sale of the mortgaged oil lease under executory process and sought payment of its claim for $290,272.90 (the outstanding balance due on the note) plus stipulated interest, attorney’s fees and costs. H & W Oil & Gas Company, Inc., owner of a $125,000.00 note executed by Venture and secured by a mortgage and vendor’s lien on the aforementioned oil lease, seeks through intervention in this suit to have its mortgage and vendor’s lien prime plaintiff’s collateral mortgage.

Intervenor’s mortgage and vendor’s lien were acquired in connection with a credit sale of the State lease from H & W Oil to Venture dated September 11, 1974, for the sum of $300,000.00 under terms of $175,-000.00 cash and the balance secured by the vendor’s lien and mortgage in the sum of $125,000.00. This act of sale contained the following subordination clause:

“Notwithstanding anything herein to the contrary the mortgage and vendor’s lien granted herein to vendor is subordinate and second to that certain collateral mortgage executed by Venture Oil & Gas Corporation securing a $1,000,000.00 collateral mortgage note dated August 29, 1974, which said mortgage is recorded in M.O.B. 77, Folio 856, of the records of Plaquemines Parish, Louisiana. Purchaser warrants to vendor that said collateral mortgage note is pledged to The Merchants National Bank of Mobile to secure sums not exceeding $300,000.00. Purchaser warrants that it will not pledge said note to secure any additional borrowings during the existence of the mortgage granted herein.”

Based on this recitation, the trial judge concluded that plaintiff’s collateral mortgage is superior to intervenor’s mortgage and vendor’s lien. Intervenor appeals. We affirm.

We reject intervenor’s contention (based on LSA-C.C. art. 3165 which sets forth in pertinent part, “The creditor cannot, in case of failure of payment, dispose of the pledge . . ..”) that Venture’s original creditor, Merchants Bank, had no right to transfer to plaintiff the pledged collateral mortgage note and, therefore, plaintiff is an unsecured creditor. We have no quarrel with the rule that ordinarily a pledgee cannot sell or transfer the pledged property absent an express agreement. However, in the instant case, the hand note in the principal sum of $300,000.00 secured by the pledge of the collateral note and mortgage has been sold and assigned by the bank to plaintiff. We know of no authority and have been cited none which prohibits such a sale.

In Odom v. Cherokee Homes, Inc., 165 So.2d 855 (La.App. 4th Cir. 1964), writ refused, 246 La. 868, 167 So.2d 677 (1964), cited by intervenor, four collateral mortgage notes issued by Cherokee Homes, Inc. (the debtor) to Morgan (the first creditor) were transferred for value to Odom (the second creditor). No assignment or transfer of Cherokee’s primary indebtedness (the hand note, if one existed) was made to Odom. Following the transfer of the collateral mortgage notes, Cherokee issued a hand note to Odom secured by the collateral notes and mortgages. The court held that without the transfer by Morgan of evidence of the primary indebtedness (the hand note, if one existed), he, Morgan, had no right to transfer the pledged mortgage notes. The court stated at page 864:

“* * * Morgan did not own the collateral mortgage notes 'and stock, he held them in pledge as security for the corporation’s indebtedness to him. * * * Obviously Morgan could not sell something he did not own. There was no transfer to Odom of the primary debt owed by the corporation to Morgan, and a sale of collateral divorced from the debt it is pledged to secure would amount to a conversion.”

The court further concluded that the transaction was a payment of Cherokee’s indebtedness to Morgan; and that pledge of the collateral mortgage notes in connection with the subsequent hand note given to Odom constituted a reissuance of the notes. According to the court, under the circumstances, Odom’s collateral mortgage, for ranking purposes, dated from the time of reissuance and not from the time of the original pledge of the collateral notes to Morgan.

The facts in the instant ease, however, are distinguishable from those in Odom. Unlike Odom, in our case the $300,000.00 hand note, secured by the collateral mortgage and note, was transferred by the original creditor to Richey, the subsequent creditor. In our case, both the hand note and collateral mortgage note were endorsed “without recourse” from Merchants Bank and assigned to plaintiff. The Odom court pointed out that no transfer of the primary debt (the hand note, if one existed) was made to the subsequent creditor. Though not stated in the Odom opinion, a reasonable inference is created (albeit dicta) that were the hand note transferred along with the collateral note and mortgage (as in our case), a different result would follow. See Nathan and Marshall, “The Collateral Mortgage”, 33 La.L.R. 497, 512-513 (1973) for a discussion of the Odom case.

We might point out further that the collateral mortgage executed by Venture provides in pertinent part as follows:

“Mortgagee may transfer, negotiate, pledge or otherwise dispose of the aforesaid promissory note, and should any person pay said note and be subrogated to the rights and claims of the Mortgagee, then in either of said events, the Mortgagee shall have the right to transfer or pledge to transferee, pledgee or subrogee of said note, as the case may be, as security for the payment of said note, all the rights herein mortgaged, pledged, or assigned to the Mortgagee, but no such transfer or pledge shall have the effect of enlarging the obligations or prejudicing any of the rights of Mortgagor under this act or said note.”

We interpret this provision to mean that the right is conferred upon Merchants Bank to transfer the collateral mortgage note in connection with a transfer of the hand note. The above provision and the Odom decision considered, we conclude Merchants Bank had the right to dispose of the hand note and the pledged property securing the note and that plaintiff’s lien is effective from the date of existence of the original ’ debt (September 10, 1974) from Venture to Merchants Bank.

We further reject intervenor’s contention that the consent granted in the collateral mortgage to transfer the pledged property is vitiated because only one of the three persons who signed the collateral mortgage note signed the collateral mortgage. It is true that the collateral mortgage note was signed by Venture and two other parties, and the collateral mortgage was signed only by Venture through its president. Nevertheless, Venture alone was the owner of the mortgaged property. Under the circumstances, no necessity existed for the remaining two parties to sign the collateral mortgage.

In the subordination clause of the credit sale dated September 11, 1974, Venture warranted to intervenor that the collateral mortgage note is pledged to Merchants Bank to secure sums not exceeding $300,-000.00. Venture further warranted in the subordination agreement that it would not pledge the note to secure any additional “borrowings” during the existence of the collateral mortgage. Intervenor claims that a subsequent loan was made by Venture from Merchants Bank in the sum of $75,000.00, evidenced by a note from Venture in favor of the bank, dated June 5, 1975. This subsequent loan, intervenor contends, is in contravention of the subordination clause and either: 1) nullifies the credit sale from intervenor to Venture, thereby returning intervenor to its former position of owner of the property; or, alternatively, 2) nullifies the subordination clause, thereby affording intervenor priority to the extent of its mortgage and vendor’s lien; or, alternatively, 3) entitles intervenor to preference to the extent of the additional borrowing, i. e., $75,000.00 plus interest. We do not agree.

In his deposition, Peter C. Petroutson, vice president of the bank, stated that the subsequent $75,000.00 loan was an unsecured loan. Further, a ledger sheet of Venture’s negotiations with the bank, introduced into evidence in connection with the deposition, indicates that on March 7, 1975, a $75,000.00 loan was made for which a 90-day demand note was given to the bank. No indication exists that this loan is secured by the collateral note and mortgage or that this loan has any connecton with the collateral mortgage transaction. The 90-day demand note was renewed on June 6, 1975, and apparently was paid on December 18, 1975. Under the circumstances, we con-elude that Venture did “not pledge” the note “to secure any additional borrowings”.

We find no merit further to interve-nor’s contentions that the subordination agreement covered only advances made prior to the effective date of intervenor’s mortgage and vendor’s lien (which interve-nor claims is September 1, 1974) and, because the $300,000.00 loan was made subsequent to September 1, 1974 (on September 10, 1974), that intervenor’s mortgage and vendor’s lien prime plaintiff’s mortgage. Clearly, the subordination clause recognizes the existence of a loan not in excess of $300,000.00 in favor of Merchants Bank and subordinates intervenor’s mortgage and vendor’s lien to the collateral mortgage in favor of the bank irrespective of when the loan is made, i. e., before or after September 1, 1974. A different interpretation would have the effect of reading out of the credit sale the subordination clause. This clearly was not the intent of the parties. The subordination clause in itself is adequate answer to this contention. The clause, in pertinent part, reads as follows:

“Notwithstanding anything herein to the contrary the mortgage and vendor’s lien granted herein to vendor is subordinate and second to that certain collateral mortgage executed by Venture Oil & Gas Corporation securing a $1,000,000.00 collateral mortgage note dated August 29, 1974 . . ..”

We reject also intervenor’s claim that the collateral mortgage is not valid as an authentic act because of the failure of Merchants Bank to appear and sign the mortgage although the mortgage specifies that the bank is one of the “appearers”. According to intervenor, the collateral mortgage is not in compliance with LSA-C.C. art. 3305. We find no failure of compliance of the collateral mortgage with LSA-C.C. art. 3305. Examination of the document indicates that it was executed before a notary public and two witnesses. It is true that the collateral mortgage has not been signed by a representative of the bank, however, we know of no authority, nor have we been cited any, which states that failure by the mortgagee to sign the mortgage vitiates the document.

Finally, we find no merit to interve-nor’s contention that the bank’s failure to accept the collateral mortgage until December 15, 1975, subordinates the collateral mortgage to intervenor’s mortgage and vendor’s lien. Intervenor points out that since no acceptance was made of the collateral mortgage by the bank (until December 15, 1975), the effectiveness of the mortgage was suspended or dormant until the bank acted upon the mortgage by making the $300,000.00 loan on September 10,1974, subsequent to the effective date of the vendor’s lien and mortgage, which intervenor contends is September 1,1974. Because the collateral mortgage was not accepted until December 15, 1975, intervenor argues, his mortgage and vendor’s lien cannot be subordinated to it. We do not agree. In the time-honored case of Roberts v. Bauer, 35 La.Ann. 453, 455-461 (La.1883), cited by plaintiff, the court stated:

“It was long since decided by this Court, that:
‘The formal written acceptance of the mortgagee was not necessary. The acceptance of the note by the payee was an acceptance of the mortgage which it stipulated, and by the delivery of the note the entire contract became complete between the debtor and the creditor.’ $ * * ff

Applying the Bauer case to the matter before us, we conclude that the making of the $300,000.00 loan constitutes acceptance of the collateral mortgage and note. In view of our previous conclusion that the recitation in the collateral mortgage subordinates intervenor’s mortgage and vendor’s lien to the collateral mortgage irrespective of when the actual loan was made, i. e., before or after September 1, 1974, we consider the lack of acceptance of the collateral mortgage on that date to be without significance insofar as ranking of privilege is concerned.

For the foregoing reasons, we conclude the trial judge properly gave effect to the subordination provision contained in the act of sale and properly ranked the collateral mortgage superior to the intervenor’s mortgage and vendor’s lien. The judgment is affirmed.

AFFIRMED.

      . LSA-C.C. art. 3165 reads as follows:
      Art. 3165. Rights of pledgee on default of debtor; procedure
      “Art. 3165. The creditor cannot, in case of failure of payment, dispose of the pledge; but when there have been pledges of stock, bonds or other property, for the payment of any debt or obligation, it shall be necessary before such stocks, bonds or other property so pledged shall be sold for the payment of the debt, for which such pledge was made, that the holder of such pledge be compelled to obtain a judgment in the ordinary course of law, and the same formalities in all respects shall be observed in the sale of property so pledged as in ordinary cases; but in all pledges of movable property, or rights, or credits, stocks, bonds or other movable property, it shall be lawful for the pledger to authorize the sale or other disposition of the property pledged, in such manner as may be agreed upon by the parties without the intervention of courts of justice; provided, that all existing pledges shall remain in force and be subject to the provisions of this act.”
      See also LSA-C.C. art. 2452; D’Amico v. Canizaro, 256 La. 801, 239 So.2d 339 (1970); Steiner v. Zammit, 279 So.2d 728 (La.App. 1st Cir. 1973).

      . The credit sale dated September 11 contained the following recitation: “This sale is effective 7:00 a. m., September 1, 1974.”

      . LSA-C.C. art. 3305 reads as follows:
      Art. 3305. Written form of conventional mortgage; mortgage of ships and other vessels
      “Art. 3305. A conventional mortgage can only be contracted by act passed in presence of a Notary and two witnesses, or by act under private signature. * * *”

      . Robert J. Moffatt.

      . H. N. Kinney Brookings and Paul R. Waddle, witnesses.

      .Indeed, the mortgagee’s failure to sign the act does not nullify the mortgage. Richardson v. McDonald, 139 La. 651, 71 So. 934 (1916).


author: STOULIG, Judge.

text:
    SNELLING AND SNELLING OF NEW ORLEANS, INC. v. Thomas H. ELLIOTT, IV.
    No. 8117.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Cameron C. Gamble, New Orleans, for plaintiff-appellee.
    Thomas H. Elliott, IV, in pro per.
    Before LEMMON, STOULIG and BEER, JJ.
   STOULIG, Judge.

This is an appeal from a judgment awarding plaintiff, Snelling and Snelling of New Orleans, Inc., $2,016, representing the employment-finding fee due by defendant, Thomas H. Elliott, IV, plus $500 attorney fees.

In dispute is whether plaintiff furnished the contact that resulted in defendant’s employment in accordance with the quoted provision of the contract:

“2. I Hereby authorize you to act in my behalf in securing a position for me. Should I accept ANY position with a company or subsidiary to which you have referred me directly or indirectly within 6 months of referral, I agree to pay a fee for professional services in accordance with the schedule contained herein. Acceptance means agreement by me with an employer to begin work.”

It is unquestionable that plaintiff provided the reference that resulted in defendant’s employment as a marine underwriter at a salary of $1,200 per month.

Briefly, on March 26, 1975, defendant contacted plaintiff for a lead to new employment because he was dissatisfied with future prospects at Gulf Coast Marine. One of its counsellors, having heard Lynne, Burney & Marquez — a general agency specializing in fire and casualty insurance— was looking for a marine underwriter, arranged for an interview between defendant and William Burney of the agency. Neither owner of the general agency had marine underwriting experience and after several conferences with defendant, they and Elliott incorporated a business named Maritime Risk, Inc., to write marine insurance. Each of the three owns one-third of the outstanding shares of stock and Elliott receives $1,200 per month. Elliott and Marquez claim the $1,200 per month is a draw against future commissions, while Burney testified it was a salary. The trial court, having heard the corporation at no time required Elliott to reimburse the company for any of the amounts paid out and had no specific plans to do so, concluded defendant found employment for $1,200 per month directly through plaintiff’s efforts.

The defense that defendant was not employed by the company to which he was referred or one of its subsidiaries is merit-less. It is true his associates formed a new corporation to conduct its marine underwriting operation; however it is clear they interviewed defendant because they needed an experienced marine underwriter to expand and that plaintiff furnished the contact that produced defendant’s employment. The business reorganization cannot defeat plaintiff’s rights in this matter.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Agnes CARTER v. Salvadore T. MULE and St. Paul Fire and Marine Ins. Co.
    No. 8021.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.
    Steven R. Plotkin, John William Corring-ton, New Orleans, for plaintiff-appellant.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

On April 17, 1974, Helen Jean Sims fell through some wooden steps at her leased residence in New Orleans. The resulting injuries caused her to be hospitalized for three weeks. Shortly thereafter, on June 20, 1974, she employed Mr. Salvadore T. Mule to represent her with respect to her injury claim against the landlord. Later, Mrs. Sims contracted pneumonia (apparently unrelated to the injuries sustained in her fall) and died on September 7, 1974.

On or about May 15, 1975, Agnes Carter, Mrs. Sims’ mother and apparent survivor with respect to any cause of action accruing under LSA-C.C. Art. 2315, discharged Mr. Mule, who had not, as of that date, instituted any suit in connection with the possible claim and, concurrently, employed Mr. Steven R. Plotkin as attorney to prosecute a malpractice suit against Mr. Mule as a result of his alleged apparent failure to timely sue on behalf of the late Mrs. Sims. Thereafter, some discussions regarding settlement of the alleged malpractice claim took place, followed, on November 20, 1975, by the institution of this claim against Mr. Mule.

On December 15, 1975, attorneys for Mr. Mule filed exceptions of no cause or right of action, and a motion for summary judgment contending, inter alia, that any claim against the landlord would not prescribe until one year from the date of the death of Mrs. Sims. Thus, they contended, the claim that had allegedly prescribed due to Mr. Mule’s alleged oversight or failure to file suit was, in fact and in law, viable as of the time that Mr. Mule was discharged by Agnes Carter. In response, plaintiff filed exceptions of res judicata and, additionally, a motion for summary judgment asserting that a compromise settlement of the malpractice claim had been consummated. Affidavits in support of this contention were also filed. Defendant filed a motion to dismiss plaintiff’s exception and motion and, also, filed an affidavit essentially traversing Mr. Plotkin’s affidavit in support of the motion which contended that an oral compromise had, in fact, been reached in connection with the settlement of the alleged malpractice claim.

On January 26, 1976, plaintiff filed a petition seeking specifically to enforce the alleged compromise and, shortly thereafter, defendant denied that a compromise had ever been effected.

On April 23, 1976, all exceptions and motions were argued and, thereafter, the Civil District Court granted Mr. Mule’s motion for summary judgment which precipitated this appeal. The court stated:

“This Court is of the opinion that this case of JONES VERSUS LIBERTY decided 248 So.2d 878 [La.App.] gives the right to a survivor of an alleged tort victim one year from the date of death of the alleged tort victim to bring their suit in their capacity as survivor of the victim This Court is of the opinion that the petitioner herein, Agnes Carter, had until the time of September 7, 1975, to file the instant suit in which Mr. Mule was out of the picture, not representing Mrs. Carter . . . The Court recognizes Mr. Plotkin’s argument about an alleged compromise settlement herein and states . . . that by granting the summary judgment the concept, the problem of the compromise, alleged compromise settlement, is of no moment herein. . . ”

On April 26, 1976, written judgment was rendered with the following adjudication:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Salvadore T. Mule and St. Paul Fire & Marine Insurance Company granting their summary judgment and dismissing the petition of plaintiff, Agnes Carter, with prejudice;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the motion for summary judgment and exception of res judicata of Agnes Carter be and they hereby are dismissed; and
IT IS FURTHER ORDERED that the exceptions of Salvadore T. Mule and St. Paul Fire & Marine Insurance Company be and they hereby are dismissed without prejudice the exceptions having become moot with the granting of the motion for summary judgment.”

Obviously, the district court was of the view that all other issues were mooted by the judicial resolution of the issue concerning whether Mrs. Sims’ original claim had or had not, as a matter of law, prescribed as of the time that Agnes Carter discharged Mr. Mule and employed Mr. Plotkin.

However, appellant strenuously contends that a compromise of the malpractice claim had been effected by and between Agnes Carter’s then attorney, Mr. Plotkin, on one hand, and Mr. Mule (and his malpractice insurer) on the other hand, even though the alleged compromise agreement had not been reduced to writing.

Appellant cites Theatre Time Clock Co. v. Motion Picture Adv. Corp., 323 F.Supp. 172 (D.C.1971), to support her contention that an oral compromise of settlement is enforceable. That federal court decision, in turn, cites C & M Properties, Inc. v. R. B. Alexander, Inc., 219 So.2d 229 (La.App. 1st Cir., 1969), and Thompson v. Stacy, 148 So.2d 834 (La.App. 4th Cir., 1963).

Thompson v. Stacy, supra, in turn, cites Upton v. Adeline Sugar Factory Co., 109 La. 670, 33 So. 725, Zibilich v. Rittenberg, 18 La.App. 628, 139 So. 309, and Van Vleet Mansfield Drug Co. v. Anders, La.App., 157 So. 166.

However, a careful reading of Van Vleet Mansfield Drug Co. v. Anders, supra, the earliest case cited, leads to a realization that the holding in that case, which seems to affect the subsequently decided cases, is still to the effect that a contract of compromise must, in order to be effective, be reduced to writing. (Louisiana Civil Code Article 3071.) What is confusing (and what probably accounts for some misinterpretation and misapplication of Van VIeet and the cases following) is the further observation in Van VIeet to the effect that the authority of an agent to compromise for his principal is not indispensably required to be in writing.

The trial court relied upon J. Wilton Jones Co. v. Liberty Mutual Insurance Company, 248 So.2d 878 (La.App. 4th Cir., 1970) writs den. 259 La. 61, 249 So.2d 202. In that case, a widowed survivor failed to exercise within one year of decedent’s death, her own right of action and, additionally, failed to substitute herself in an action for personal injury timely instituted by the decedent. On appeal, we concluded that Art. 2315 today, construed in the light of its history and together with legislative amendments to the laws, including CCP Arts. 428 and 801, must be interpreted as providing for survival of a tort victim’s right to recover personal injury damages in favor of the designated survivors. Where no action has been instituted, the right to institute an action survives only during one year from the victim’s death, but the right to recover survives beyond that period if the action is timely instituted. Thus, when a tort victim dies prior to the prescriptive date of his injury, his statutorily designated survivor may bring suit, based upon the decedent’s not yet prescribed right to recover, within “a period of one year from the death of the deceased. . . .” Accordingly, the right to recover which, under the circumstances here present, accrued to Agnes Carter did not expire until September 7, 1975, one year after the death of her daughter, Mrs. Sims.

Since nothing has changed the basic codal requirement that a compromise agreement must be “reduced in writing” as provided by LSA-C.C. Art. 3071 (see Charbonnet v. Ochsner, 258 La. 507, 246 So.2d 844 (1971), Senegal v. Delahoussaye, 311 So.2d 58 (La.App. 3rd Cir., 1975), and Wolfe v. Safeway Stores, Inc., 335 So.2d 744 (La App. 2nd Cir., 1976) and since Mr. Mule was discharged by Mrs. Carter on or about May 15,1975, at which time suit could have been filed by Mrs. Carter in behalf of the decedent against the alleged responsible landlord, we find the summary judgment to be correct.

The judgment is affirmed at appellant’s cost.

AFFIRMED.

      . In 1950, decedent had married Charles Henry Sims. No issue came of this marriage. Mr. Sims abandoned Mrs. Sims over twenty years prior to the accident.

      . We refer first to Theatre Time Clock Co. v. Motion Picture Adv. Corp., supra, for the purpose of establishing the linkage back to Van VIeet, supra, the basic state court decision.


author: BEER, Judge. LEMMON, Judge,

text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, Louisiana v. William LeBOUEF.
    No. 8055.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Reuter & Reuter, Arthur C. Reuter, New Orleans, for defendant-appellant.
    Foley, Judell, Beck, Bewley & Landwehr, James Foley, III, New Orleans, for plaintiff-appellee.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

On August 2, 1974, appellant, William LeBouef, executed a promissory note in the amount of $5,000, due October 31, 1974, in favor of appellee, First National Bank of Commerce (hereafter, “bank”), resulting in that sum being credited to the campaign fund account of a candidate for judicial office, which account was also with the bank. Not receiving payment of the note by the due date, the bank ultimately filed suit, seeking recovery of $5,000, plus interest and attorneys’ fees as provided for in the note. After trial, judgment was rendered in favor of the bank and against LeBouef in the sum of $5,000, with interest from August 2, 1974, plus twenty percent attorneys’ fees and all costs.

The trial court, in written reasons for judgment, made the basic factual determination that LeBouef intended to donate the $5,000 to the campaign fund of the candidate for judicial office and further found, as a fact, that LeBouef knew that the $5,000 was “to be transferred to the campaign fund,” that the deposit of those funds in that particular campaign account was “accomplished in accord with the intent of Mr. LeBouef,” and that such intent, thus acknowledged and acted upon by the bank, was “adequate consideration for the note.”

LeBouef suspensively appeals.

We find no manifest error in the factual conclusions of the trial court noted above.

On those facts, we address the issues raised by appellant as follows:

1. Did consideration flow to LeBouef? We must answer in the affirmative since the facts, as found by the trial court, evidence an intention on LeBouef’s part to donate $5,000 to the particular campaign fund involved.

2. Did LeBouef receive adequate compensation? Again, the answer must be in the affirmative based upon the facts found by the trial court.

3. Was the transaction illegal? The so-called Election Campaign Finance Disclosure Act of 1975, as amended in 1976, was not in effect at the time of this transaction. LSA-R.S. 18:1482, et seq. and 18 U.S.C.A. Sec. 610 would, as vigorously urged by appellant’s able and tenacious counsel, apply under certain factual circumstances. However, the facts found by the trial court (which we find supported by the record and, thus, not manifestly erroneous) obviate the applicability of these statutory provisions. Appellant’s counsel urges that “the transaction was illegal and the bank knew it.” He contends that this was a “subtle scheme” which was devised “to avoid the detection of the illegality of the transaction” and warns us against prostituting the legal process to the point where persons who have engaged in illegal activity can flee to the courts for refuge. In oral argument, counsel refers not once but often to the contention that “this situation stinks” and admonishes us to “let the parties stew in their own juice.” However, on the facts found, there is no basis for concluding that the bank did anything other than that which LeBouef desired it to do.

It is possible that LeBouef was misled. But, on the facts found, we see no basis upon which the misleading (if any there was) can be attributable to the bank.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans must be affirmed at appellant’s cost.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

The bank, without written directions from the maker of the note, credited the loan proceeds to another person’s account. There is no parol evidence rule which prohibits the use of testimonial proof and circumstantial evidence to establish that the maker authorized the proceeds to be handled in this manner.

The testimonial proof and circumstantial evidence in this case are sufficient to support the judgment. LeBouef knew that the bank was to extend funds based, at least in part, on his credit standing. On the alleged assurance that his signature on the note was only an endorsement, he executed the note and entrusted it for delivery to the bank to the person who allegedly gave that assurance. Thereafter, he failed to inquire over the next 90 days about disposition of the note and the loan proceeds.

Under these circumstances the conclusion is warranted (and virtually compelled) that LeBouef knew and approved of, and consented to, the bank’s disposition of the loan proceeds. Whether he intended to be primarily or secondarily liable on the note which gave rise to the loan proceeds is of no significance to the issue as to whether he authorized the bank’s disposition of the loan proceeds. That question has significance only as between LeBouef and the person he clothed with authority to direct disposition of the loan proceeds.

      . No useful purpose is served by rehashing the testimony of the various witnesses. The trial judge made certain credibility and common sense determinations which are supported by the record and which, in turn, support the factual conclusions on which his decision is based.


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    Jeannette POWE et al. v. CITY OF NEW ORLEANS.
    No. 8273.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied June 7, 1977.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, Thomas P. Anzelmo, Sr., Jackson P. McNeely, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

Jeannette Powe, individually and as natural tutrix of the minor children, Caroline Elizabeth Barnes and John Christopher Barnes, was awarded judgment against the City of New Orleans (hereafter, “the City”) for workmen’s compensation benefits as a result of the death of her husband and the children’s father, John C. Barnes. We affirmed (La.App., 322 So.2d 821), and the Supreme Court refused writs (La., 325 So.2d 584) on January 30, 1976. On March 31,1976, Mrs. Powe filed a petition to accelerate payments and to collect payments in arrears under the provisions of LSA-R.S. 23:1333. Under the provisions of LSA-R.S. 22:658, she sought penalties and attorneys’ fees, alleging arbitrary, capricious and unreasonable delay, on the City’s part, in satisfying the judgment.

Trial took place on June 18, 1976. The City called Philip S. Brooks, City Attorney, who testified that shortly after judgment became final (early February, 1976), he contacted plaintiff’s attorney who indicated interest in a discounted lump sum settlement but found mathematical inaccuracies in the proposed estimates. Thereafter, plaintiff’s attorney lost interest in the discounted lump sum settlement and insisted on payment in accordance with the judgment. Brooks confirmed this by letter dated March 23, 1976. On cross-examination, Brooks acknowledged that government bureaucracy had caused a brief delay in starting payments after settlement negotiations had broken down but noted:

“There was no intention, or no orders were ever given, nothing was ever said to delay those checks, because we understand that workmen’s compensation should be paid out and paid out as rapidly as possible.”

Leroy Aucoin, an employee in the Administrative Office, testified that the workmen’s compensation department appropriates money by fiscal quarters. For the quarter ending March 31, 1976, there was an inadequate amount in the account to pay the judgment, but,, on April 1, funds became available and the judgment was placed in line for payment.

Josette Gaspard, an employee of the City Planning Commission, testified that the initial payment voucher was incomplete but that a memo from the Accounting Department cleared the matter and, thereafter, all subsequent payments were punctual. Significantly, this was the first workmen’s compensation claim processed by the City Planning Commission.

Wayne DeLarge, employed in the Finance Department’s Bureau of Accounting, explained that before a voucher can be issued, a form must be obtained from the Civil Service Department (signed by the claimant) denoting that the employee involved has been transferred from the city payroll to workmen’s compensation status. He indicates that, in this case, he contacted the City Attorney’s Office, who then sent a memo which was used in lieu of the Civil Service form in this particular case. Now the payment is set up on the computer, and he anticipates no further problems.

The record indicates that on April 7,1976, two checks were drawn and made payable to Mrs. Powe — one in her capacity as tutrix and the other as the widow of John Barnes. They were mailed to her attorney on that date. On April 8, her attorney received the checks.

The record is clear: approximately two months after the judgment became final, the City brought all pastdue payments up to date and, thereafter, has continuously made all payments on time. Although one cause for the delay was the bureaucratic mechanism for fund appropriation, the testimony preponderates in favor of a finding that the City demonstrated a good faith intention to satisfy the judgment and no willful refusal to pay. Furthermore, there was a period of good faith negotiation between able counsel for both litigants which commenced early in February and, apparently, ended sometime later that month or early in March.

The record supports the apparent factual determinations of the trial court which form the basis of its judgment, and, thus, we are clearly precluded from a determination that the judgment is manifestly erroneous. Indeed, we believe that it is correct.

LSA-R.S. 23:1333 is not intended to penalize an employer who, immediately after the judgment becomes final, opens discussions, in good faith, regarding the possibility of a discounted lump sum payment, particularly when the facts strongly imply a willingness on the part of all concerned to leave the matter open during the time when discussions are actively engaged in.

Such a conclusion obviates the necessity of discussing the possible conflict between the provisions of LSA-R.S. 23:1333 and Louisiana State Constitution of 1974, Article XII, Section 10, as well as the applicability of LSA-R.S. 22:658.

The judgment of the Civil District Court for the Parish of Orleans is affirmed. All costs of this appeal must be borne by the appellant.

AFFIRMED.


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    Philip CHEATUM v. The WACKENHUT CORPORATION et al.
    No. 8307.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.

      Charbonnet & Charbonnet, Wayne E. Garrett, New Orleans, for plaintiff-appellant.
    James H. Minge, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

This is a Workmen’s Compensation Act claim by appellant, Philip Cheatum, against his employer, Wackenhut Corporation, and its insurer, claiming total and permanent disability resulting from back injuries sustained in a fall occasioned in the course and scope of his employment on October 9,1974. The workmen’s compensation insurer of Wackenhut, Home Insurance Company, paid compensation in the amount of $65 per week for a 13-week period after the accident. Judgment was rendered, after trial on the merits, holding that Cheatum was injured on October 9,1974, during the scope of his employment with Wackenhut, and that the resultant disability continued for a period of 13 weeks. Cheatum appeals.

The record discloses that Cheatum has a history of alleged injuries resulting in claims for recovery of damages, including various instances of back injury.

No medical testimony was adduced at trial. However, the medical records and/or depositions of Drs. Rufus H. Alldredge, Richard W. Levy, John C. Thorn, T. S. Whitecloud, III, G. C. Battalora, Carlos Pi-sarello and Joseph J. Frensilli were introduced. They reflect the following chronology of events and resume of medical opinions as to Cheatum’s situation:

Dr. Levy, a neurologist, first examined Cheatum on June 7, 1968, upon Dr. J. T. Nix’s recommendation, relative to a February 25, 1968 automobile accident. At that time, Dr. Levy was of the opinion that Cheatum did not have a neurological disability attributable to the accident.

On June 28, 1974, Dr. Frensilli, an ortho-paedic surgeon, examined Cheatum at the Westside Orthopaedic Clinic and was of the opinion that Cheatum probably sustained a lumbar-cervical sprain as a result of a June 10, 1974 accident.

Dr. Thorn, whose consultant practice is mostly limited to obstetrics and gynecology, noted in a handwritten report dated July 1, 1974, that Cheatum had made complaints of severe pain in the cervical, mid-thoracic, and lumbosacral regions along the spine. Dr. Thorn further observed: “Ataxia has developed. The patient (Cheatum) may require a myelogram to rule out the diagnosis of a ruptured disc.” Numbness in Chea-tum’s feet suggested that Cheatum possibly suffered a ruptured disc. Dr. Thorn made at least two home visits to see Cheatum because of his complaints of pains communicated over the telephone.

Dr. Battalora saw Cheatum on July 18, 1974, relative to his complaints referable to the head, neck, left arm, low back and legs. After reviewing x-ray studies of the cervical and lumbosacral spine made on July 8, 1974, at West Jefferson Hospital, Dr. Batta-lora concluded that Cheatum suffered from injuries involving the neck, back and left shoulder girdle. Conservative treatment was recommended.

Following his course and scope fall on October 9, 1974, Cheatum was examined by Dr. Alldredge, an orthopaedic surgeon, on October 11, 1974, at the request of Wacken-hut Corporation. Dr. Alldredge related Cheatum’s account of the October 9, 1974 fall in his report and opined that Cheatum had sustained a slight lumbosacral strain. On October 15, 1975, Dr. Alldredge again examined Cheatum, noting his complaints of neck, arm, back and leg pain but concluded that there was no objective explanation for the symptoms.

Dr. Pisarello, a neurosurgeon, examined Cheatum once, on December 2, 1974, finding no objective evidence of a herniated lumbar or cervical disc. Dr. Pisarello observed that when a lumbar disc is ruptured traumatically, there is an immediate and unequivocal pain manifestation, particularly so if a 300-pound person falls or jumps, causing injury. If a herniated lumbar disc first manifested itself in November of 1975, Dr. Pisarello opined that it was unlikely that it resulted from an October 9, 1974 fall.

On July 15,1975, Cheatum was examined again by Dr. Levy, who referred him to Dr. William A. Martin for nerve conduction velocity studies. Thereafter, Cheatum was admitted in Touro Infirmary on November 4, 1975, for further studies and a lumbar myelogram. Because of alleged allergies and alleged hereditarily adverse reaction to iodine, Cheatum opted not have the myelo-gram performed.

In a report dated November 24, 1975, Dr. Levy expressed the view that Cheatum suffered from a ruptured intervertebral disc at the L5-S1 level on the right side. However, a laminectomy was not recommended at that time due to Cheatum’s obesity. Dr. Levy referred Cheatum to a gastroenterologist, Dr. Hyman, for consultation concerning weight loss.

Cheatum was re-examined on March 8, 1976 (prior to being involved in an automobile accident on that same day), by Dr. Levy, who then was of the view that: “There is no evidence of spinal cord, nerve root, or peripheral nerve injury or disease * * * From the clinical standpoint, this man has improved in spite of the fact that he states that his pain is more intense now than it was previously. I do not recommend any further neurological diagnostic studies at present, and no neurosurgery is indicated.”

Based upon an examination of October 27, 1975, Dr. Whitecl'oud, an orthopaedic surgeon, opined that Cheatum was suffering from a herniated lumbar disc and possibly a herniation of a cervical disc. Nevertheless, due to Cheatum’s obesity, surgery would be untimely and too dangerous to undertake. Cheatum was again seen by Dr. Whitecloud on December 12,1975, February 10, 1976 and in March of 1976. After the last visit, Dr. Whitecldud concluded that Cheatum was disabled and that such disability “more than likely” resulted from the fall in October of 1974. This conclusion was grounded upon the history of events given by Cheatum.

Able counsel for plaintiff appropriately cites Freeman v. Standard Materials, Inc., 246 So.2d 258 (La.App. 1st Gir., 1971) writs ref. 258 La. 910, 248 So.2d 334, for the proposition that when only depositions and medical reports are submitted for the trial judge’s consideration, the trial judge is not necessarily in a better position to evaluate the credibility of these witnesses than are we. However, here,’ the trial judge had the opportunity to hear and observe the plaintiff, Cheatum, and thus to make his own credibility determination with respect to those representations which Cheatum made to the various physicians regarding the history of his alleged disability. In the context of this litigation, the credibility of the history given by Cheatum to the various physicians becomes as important as the medical opinions based — in part — thereupon.

There is much room for doubt as to whether or not, even now, Cheatum does, in fact, suffer from a ruptured intervertebral disc and, obviously, then, even greater doubt as to whether his disability (if, indeed, it exists at all) is properly attributable to the accident of October 9, 1974. Thus, there is ample basis for support of the trial court’s factual determinations which form the basis for its judgment. We find no manifest error on the part of the trial court, nor, for that matter, any basis upon which we should consider substituting our conclusions (even if they be not identical) for those reached by the trial court.

Accordingly, the judgment of the 29th Judicial District Court for the Parish of St. Charles is affirmed, at appellant’s cost.

AFFIRMED.