text:
    LOUISIANA STATE BAR ASSOCIATION v. Neville Glenn ORRETT.
    No. 61469.
    Supreme Court of Louisiana.
    Feb. 9, 1978.
   PETITION FOR LEAVE TO SURRENDER LICENSE TO PRACTICE LAW AND TO HAVE STRICKEN HIS NAME FROM THE ROLLS OF ATTORNEYS FOR THE PERIOD OF NINETY (90) DAYS SUSPENSION ON CONSENT

TO THE HONORABLE SUPREME COURT OF THE STATE OF LOUISIANA, THROUGH THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY OF THE LOUISIANA STATE BAR ASSOCIATION

The Petition of Neville Glenn Orrett, Respondent herein, appearing herein personally and through Milton P. Masinter and Joseph McMahon, his Attorneys, with respect represents.

I.

That Neville Glenn Orrett was admitted to practice law in the State of Louisiana before this Honorable Court in February, 1973.

II.

That Neville Glenn Orrett was convicted of a misdemeanor in the United States District Court for the Eastern District of Louisiana, all as set forth in the attached Bill of Information and Judgment and Commitment Order attached hereto and made a part hereof.

III.

That Neville Glenn Orrett acknowledges that his said conviction is now final, he having pleaded guilty on October 3,1977, to a violation of 14 La.RS. 120 and Title 18 United States Code, § 13 and 18 U.S.C. § 2, Corrupt Influence.

IV.

That Neville Glenn Orrett respectfully suggests that as this Court held in the case of Louisiana State Bar Association v. Ponder, La., 340 So.2d 134 (1976), a ninety (90) day suspension from the practice of law is appropriate discipline for the activity which resulted in Mr. Orrett’s conviction.

V.

Neville Glenn Orrett herein petitions this Court for leave to surrender his license to practice law for a period of ninety (90) days, commencing on the date of this Court’s Order.

VI.

Neville Glenn Orrett acknowledges and declares that his suspension on consent is freely and voluntarily submitted; it is not the result of coercion or duress and Neville Glenn Orrett is fully aware of the implications of his suspension.

WHEREFORE, Neville Glenn Orrett prays that he be allowed to surrender his license and that same be revoked and can-celled and, further, that his name be stricken from the rolls of attorneys authorized to practice law in the State of Louisiana, all for the limited period of ninety (90) days from date of this Court’s Order, thus resulting in his suspension for that period by his own consent.

ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED, AND DECREED

That Neville Glenn Orrett be and he is hereby suspended from the practice of law in the State of Louisiana for a period of ninety (90) days from the date of this Order.

/s/ JOE W. SANDERS Chief Justice

/s/ FRANK W. SUMMERS Associate Justice

/s/ ALBERT TATE. JR. Associate Justice

/s/ PASCAL F. CALOGERO. JR. Associate Justice

/s/ WALTER F. MARCUS. JR. Associate Justice

DENNIS, J.,

is of the opinion that upon the record before us, which presents none of the factual circumstances surrounding petitioner’s commission of the offense of corrupt influence, a more severe penalty would be appropriate.


source: Caselaw Access Project

license: Public Domain

text:
    Ephriam CULLIVAN, Jr. v. FISH ENGINEERING AND CONSTRUCTION CO., INC., et al.
    No. 61383.
    Supreme Court of Louisiana.
    Feb. 10, 1978.
   In re: Employers Casualty Company and Fish Engineering Co., Inc. applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 354 So.2d 597.

Not considered. No rehearing applied for in the court of appeal. Judgment is final.


text:
    Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
    No. 61584.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Angie Neider Delesdernier, Inter-venor, applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 354 So.2d 581.

Denied.


text:
    Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
    No. 61582.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Paul Delesdernier, Succession of Ira Delesdernier, Sr. and Gael Keene Ralph, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 354 So.2d 581.

Denied.


text:
    Gloria Delesdernier, wife of Paul MARCHAND v. Estate of Julia Loga, wife of George W. DELESDERNIER, et al. and Delesdernier Estates, Inc. In the Matter of Succession of George W. DELESDERNIER. In the Matter of Succession of Julia Theresa Loga, wife of George W. DELESDERNIER.
    No. 61583.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Angie Neider Delesdernier applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 354 So.2d 576.

Denied.


text:
    Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
    No. 61534.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: George T. Armstrong applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 354 So.2d 581.

Denied.


text:
    Gloria Delesdernier, wife of Paul MARCHAND v. George T. ARMSTRONG and Mark Delesdernier et al.
    No. 61531.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   „ In re: Gloria Delesdernier, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 354 So.2d 581.

Denied.


text:
    Gloria Belesdernier, wife of Paul MARCHAND v. Estate of Julia Loga, wife of George W. DELESBERNIER, et al. and Belesdernier Estates, Inc.
    No. 61482.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
   In re: Gloria Delesdernier, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 354 So.2d 576.

Denied.


text:
    STATE of Louisiana v. Leroy MYLES.
    No. 61636.
    Supreme Court of Louisiana.
    Feb. 20, 1978.
   In re: Leroy Myles, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of St. Charles.

Writ denied.


text:
    Robert J. BERNHARB et al. v. Barryl J. TSCHIRN.
    No. 61665.
    Supreme Court of Louisiana.
    Feb. 23, 1978.
   In re: Darryl J. Tschirn applying for writ of review. Parish of Jefferson.

Writ granted in part. A stay order is granted until Tuesday, February 28, 1978, 5:00 P.M. to allow relator to apply to the Court of Appeal, Fourth Circuit for a sus-pensive appeal under its supervisory jurisdiction.


text:
    CITY OF BATON ROUGE v. Lynn CHANDLER.
    No. 61602.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Lynn Chandler applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge.

Writ denied.

TATE, J., would grant writ.


author: TATE, J.,

text:
    Clyde J. MIRE et al. v. CHEVRON OIL COMPANY et al.
    No. 61600.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Clyde J. Mire, et al, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Arcadia. 353 So.2d 462.

Writ denied.

TATE, J.,

dissents. The 1965 act did not create a new servitude. Therefore the original 1957 servitude was extinguished by non-user in 1967.


author: CALOGERO, J.,

text:
    Mrs. Nancy Nuebel, widow of Burton T. BLANCHER, Ind. and as Natural Tutrix and Administratrix of minors Burton T. Blancher, II and Leslie Kay Blancher v. Grady SAMUELS et al. John L. DIMICELLI, Jr. v. Grady SAMUELS, a/k/a Grady Samuels, Jr., et al.
    No. 61596.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Hendee Haulers & Employers Commercial Union Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 213.

Writ denied.

CALOGERO, J.,

is of the opinion the writ should be granted to consider relator’s assignment of error # 2.


text:
    John D. FOREMAN v. VERMILION PARISH SCHOOL BOARD.
    No. 61595.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: John D. Foreman applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 353 So.2d 471.

Writ denied.

DENNIS, J., would grant writ.


text:
    Roy Lee LANDRY v. John J. MARTIN et al.
    No. 61588.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Mr. & Mrs. John J. Martin and Aetna Casualty & Surety Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 353 So.2d 449. .

Writ denied.

DENNIS, J., would grant writ.


text:
    WANDA PETROLEUM COMPANY v. MAC DRILLING, INC.
    No. 61587.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Mac Drilling, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 353 So.2d 474.

Writ denied.

DENNIS, J., would grant writ.


text:
    Gale STEINKAMP v. Gregory L. HARO and Liberty Mutual Insurance Company.
    No. 61573.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Gale Steinkamp applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.

TATE, J., would grant writ.


text:
    STATE of Louisiana v. Edward R. BOGLE, Richard G. Boksham, Robert M. Hoskins, Jr., Christopher R. Garrett and Thomas M. Gorman.
    No. 61556.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Edward R. Bogle, Richard G. Boks-ham, Robert M. Hoskins, Jr., Christopher R. Garrett and Thomas M. Gorman, applying for writs of certiorari, mandamus and prohibition and for stay order. Parish of Beauregard.

Writ denied.

DENNIS, J., would grant writ.


text:
    STATE of Louisiana ex rel. Norris Leroy VESSELL v. Honorable Matthew BRANIFF, Judge.
    No. 61546.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Norris Leroy Vessell applying for writ of mandamus. Parish of Orleans.

Writ denied: A minute entry of January 17,1978 shows that the Loyola Law Clinic is appointed to represent the petitioner. In that regard, the application is moot. On the showing made, the petitioner is not entitled to the relief sought.


text:
    SEARS ROEBUCK & CO. v. David NAMER.
    No. 61545.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: David Namer applying for supervisory writs of review. Jefferson Parish.

Writ denied.

DENNIS, J., would grant writ.


text:
    Robert PECK v. ORLEANS LEVEE BOARD and Houston General Insurance Company.
    No. 61524.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Robert Peck applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 353 So.2d 424.

Writ denied.

TATE, CALOGERO and DENNIS, JJ., would grant.


text:
    STATE of Louisiana v. Joseph KAUFMAN.
    No. 61372.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: State of Louisiana, applying for writ of certiorari.

Writ denied.

SANDERS, C. J., and SUMMERS, J., would grant.


text:
    STATE of Louisiana v. Burlon GRAHAM.
    No. 61540.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Burlón Graham applying for writ of certiorari. Parish of East Baton Rouge.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Donovan Parker, Judge of the Nineteenth Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, 19_, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Hayworth L. BRADLEY.
    No. 61549.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish of E. Baton Rouge.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the 19th Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of March, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, 19_, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Eugene McGOWEN.
    No. 61572.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Eugene McGowen applying for writs of certiorari, prohibition and mandamus.

Writ denied. Appeal is pending. See LSA-C.Cr.P. art. 363.


text:
    STATE of Louisiana ex rel. Ronald BURNETTE v. Harold M. THERRY, Sheriff, Parish of Caddo, State of Louisiana.
    No. 61223.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Ronald Burnette applying for writ of habeas corpus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Alfred JUDSON v. Hayden DEES, Warden.
    No. 61537.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Alfred Judson applying for writ of certiorari. Iberville Parish.

Writ denied.


text:
    STATE of Louisiana v. Stanley DUNN.
    No. 61547.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Stanley Dunn applying for writs of habeas corpus, mandamus and prohibition. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Clayton John LAPRAIRIE v. C. Paul PHELPS, Secretary Dept. of Corrections, B. R. La.
    No. 61548.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Clayton John Laprairie, applying for writ of habeas corpus. Parish of Avo-yelles.

Writ denied.


text:
    STATE of Louisiana ex rel. Victor H. LINKLETTER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 61560.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Victor H. Linkletter applying for writs of mandamus and habeas corpus. Parish of Iberia.

Writ denied.


text:
    STATE of Louisiana ex rel. Samuel PROCTER v. Frank BLACKBURN, Warden.
    No. 61561.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Samuel Procter, applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    Harvey H. FRENZEL v. Benjamin BOWEN et al.
    No. 61564.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Harvey H. Frenzel applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    ST. PAUL FIRE AND MARINE INSURANCE CO. v. Calvin J. EDWARDS.
    No. 61599.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Calvin J. Edwards, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. (Orleans).

Writ denied.


text:
    Harry G. VIZINAT et al. v. CITY OF EUNICE et al.
    No. 61601.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Harry C. Vizinat and Wildarene (Wilda Lynn) Vizinat, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry.

Writ denied.


text:
    STATE of Louisiana v. Richard HARDY.
    No. 61637.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Richard Hardy applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Ronald J. DANIEL.
    No. 61433.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Ronald J. Daniel applying for writs of prohibition, mandamus and a stay order. Parish of East Baton Rouge.

Denied.


text:
    Orville COON v. W. S. BLANEY, Jr., d/b/a W. S. Blarney, Jr. Construction Company.
    No. 61577.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Orville Coon, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 353 So.2d 744.

Writ denied.


text:
    Mrs. Nancy Nuebel, Widow of Burton T. BLANCHER, Ind. and as Natural Tutrix and Administratris of minors Burton T. Blancher, II and Leslie Kay Blancher v. Grady SAMUELS et al. John L. DIMICELLI, Jr. v. Grady SAMUELS, a/k/a Grady Samuels, Jr., et al.
    No. 61579.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Mrs. Nancy Nuebel Blancher, widow of Burton T. Blancher, etc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 213.

Writ denied.


text:
    William D. RAGSDALE et ux. v. J. E. HOOVER, d/b/a Hoover Masonry Contractor et al.
    No. 61574.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: William B. Ragsdale and Betty Wisdom Ragsdale applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 353 So.2d 1132.

Writ denied.


text:
    Shirley Robinson, wife of and Lyonel W. JORDAN, Individually and on Behalf of their minor child, Kimberlyn Michel Jordan v. PALM APARTMENTS and American Liberty Insurance Company.
    No. 61581.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Shirley Robinson, wife of/and Lyonel W. Jordan, etc., applying for certio-rari. or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 353 So.2d 1120.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.

i


text:
    Charles W. RABORN et al. v. BIENVILLE PARISH POLICE JURY.
    No. 61608.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Charles W. Raborn, et al, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Bien-ville. 353 So.2d 1102.

Writ denied.


text:
    Alice Nomey NAMIE v. STATE of Louisiana, DEPARTMENT OF HWYS.
    No. 61616.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Alice Nomey Namie, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 353 So.2d 1095.

Writ denied.


text:
    Jessie Eugene HARPER v. Kenneth Randall JEANS et al.
    No. 61592.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Jessie Eugene Harper applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 353 So.2d 1093.

Writ denied, the result is correct.


text:
    Wyett NICHOLS et ux. v. Walter T. PIPES et al.
    No. 61557.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: American Bank and Trust Company applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 353 So.2d 1086.

Writ denied.


text:
    Joe DIXON et al. v. ALLSTATE INSURANCE COMPANY.
    No. 61610.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Judith Ann Dixon and Joe Dixon, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 353 So.2d 1054.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Fred SAUCIER v. HAYES DAIRY PRODUCTS, INC. and the Hartford Group Insurance Company.
    No. 61562.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Fred Saucier, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 353 So.2d 732.

Granted.

It is ordered that' the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Virgie BOLDEN v. GEORGIA CASUALTY AND SURETY COMPANY.
    No. 61594.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Virgie Bolden applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 353 So.2d 492.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Succession of James Ware GARDINER.
    No. 61597.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Katherine Garrison Brewer, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 353 So.2d 484.

Writ denied.


text:
    Dorothy STEVENSON and Joel Stevenson v. BD. OF LEVEE COMMISSIONERS OF the TENSAS BASIN LEVEE DISTRICT.
    No. 61542.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Bd. of Levee Commissioners of the Tensas Basin Levee District applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Catahoula. 353 So.2d 459.

Writ denied.


text:
    Lester Lee LACALLE, Jr. v. ASHY ENTERPRISES et al.
    No. 61570.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Lester Lee Lacalle, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 353 So.2d 439.

Writ denied.


text:
    Lester Lee LACALLE, Jr. v. ASHY ENTERPRISES, INC., et al.
    No. 61541.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Ashy Enterprises, Inc., et al applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of St..Landry. 353 So.2d 439.

Writ denied.


text:
    Berthella Clark, wife of and Eddie CLARK, as Administrators of the Estate of their deceased son, Ronald Joseph Clark v. TENNECO, INC. and its wholly owned subsidiary, Tenneco Oil Co., Charles Kilgore, Paul Floth, Ray Brooks, Dennis Caballero, C. W. Rackley, A. R. Dudley, L. R. Spence, Delta Field Erection Inc., Harding J. Alleman, Sr., E. S. Odum, Earnest S. Odum and Hal S. Phillips and their insurer, Liberty Mutual Insurance Co.
    No. 61593.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Berthella Clark, et al, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 353 So.2d 418.

Writ denied.


text:
    Nicholas A. TARDO v. NEW ORLEANS PUBLIC SERVICE, INC., Melvina Johnson, wife of and Nelson T. Butler, Sr.
    No. 61585.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Nicholas A. Tardo, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 853 So.2d 409.

Writ denied.


text:
    Dorothy Sellers GRICE v. AETNA CASUALTY & SURETY COMPANY.
    No. 61566.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Aetna Casualty & Surety Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 353 So.2d 401.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    LOUIS DREYFUS CORPORATION v. CONTINENTAL GRAIN CO.
    No. 61612.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Louis Dreyfus Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 348 So.2d 1286.

Writ denied.


author: SAMUEL, Judge. PER CURIAM.

text:
    CITY OF KENNER v. William Ennis LAWRENCE and Municipal Fire and Police Civil Service Commission of the City of Kenner.
    No. 7566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Feb. 28, 1978.
    H. A. Vondenstein, Kenner, for plaintiff-appellee.
    Samuel W. Ethridge, Kenner, for defendant-appellant.
    Philip R. Johnson, Metairie, for defendant-appellant.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment setting aside a ruling to the Municipal Fire and Police Civil Service Commission of the City of Kenner which ruling had reinstated appellant, Officer William Ennis Lawrence, after his employment had been terminated by the chief of the City of Kenner Police Department.

Timely filing of an appeal bond is jurisdictional, and the failure of an appellant to timely file a bond requires the appeal be dismissed. Because the matter is jurisdictional, the reviewing court may dismiss an appeal on its own motion for defects evident in the record.

The judgment of the trial court was read, rendered and signed July 14, 1975. A clerk’s certificate shows that notice of the judgment was mailed to appellant through his attorney on July 15, 1975. Appellant did not apply for a new trial. He moved for an appeal on August 11, 1975, and an order was signed that day granting a sus-pensive appeal returnable October 30, 1975 and setting the appeal bond at $250. The bond was filed October 29, 1975.

The foregoing statement shows the bond was not filed within 30 days of the expiration of the delay for applying for a new trial as provided by Code of Civil Procedure Article 2123 and thus the appellant is not entitled to a suspensive appeal. The other question for our consideration is whether the appeal was perfected in time for us to consider it as a devolutive appeal pursuant to Article 2087 of the Code of Civil Procedure (as that article provided prior to its amendment in 1976), which in pertinent part required that a devolutive appeal may be taken, and the security therefor furnished, within 90 days after the expiration of the delay for applying for a new trial, if no application has been filed timely.

As no application for a new trial was filed within 7 days in accordance with Article 1974, the 90 day period for a suspensive appeal pursuant to the then Code of Civil Procedure Article 2087 began to run 7 days exclusive of legal holidays from the delay after notice of judgment was mailed on July 15, 1975.

íhe 7 day period began to run July 16, 1975 and ended, after 7 days (exclusive of legal holidays), on July 24, 1975. The 90 day period during which appellant could have filed his bond and thereby perfected a devolutive appeal began to run July 25, 1975 and ended on October 22, 1975. Thus, appellant’s bond, filed 7 days later, was not timely.

Since the timely filing of the appeal bond is jurisdictional, appellant’s failure to timely file the bond requires that this appeal be dismissed.

For the reasons assigned, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

Both appellants, Mr. Lawrence and the Commission, have applied for a rehearing in this matter. The applications are based on the argument that dismissal of the appeal was improper because there is no requirement to file an appeal bond, citing R.S. 13:4432, which in pertinent part provides:

“Such suspensive appeal, in the case of any officer, board, commission or department of the state government, or any political subdivision thereof, shall be without bond.”

We find the argument to be without merit. Clearly, Mr. Lawrence is not an “officer” within the intent and meaning of that word as used in the statute and, with equal clarity, the Municipal Fire and Police Civil Service Commission of the City of Kenner is not a proper appellant under the facts of this case. Here, the Commission has acted in its quasi-judicial capacity and as such it has no right of appeal.

Accordingly, the applications for rehearing are denied.

APPLICATIONS DENIED.

      . Wright v. Mark C. Smith & Sons, La., 283 So.2d 85.

      . Voth v. American Home Assurance Company, La.App., 219 So.2d 236.

      .Article 1913, Code of Civil Procedure.

      . Lynch v. Derryberry, La.App., 339 So.2d 507; Butaud v. City of Lake Charles, La.App., 338 So.2d 358; Elrod v. City of Shreveport, La.App., 322 So.2d 339.


author: GUIDRY, Judge.

text:
    HOUSING AUTHORITY OF the CITY OF LAKE CHARLES, Louisiana, Plaintiff-Appellee, v. Albert MINOR, Defendant-Appellant.
    No. 6232.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Raggio, Farrar, Cappel & Chozen by Frederick L. Cappel, Lake Charles, for defendant-appellant.
    Charles S. King, Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS APPEAL

The plaintiff-appellee, The Housing Authority of The City of Lake Charles, Louisiana, moves to dismiss the suspensive appeal of the defendant-appellant, Albert Minor, on the grounds that the appellant’s appeal was not timely perfected. The motion is opposed.

We deny the appellee’s motion to dismiss.

This action was brought by the plaintiff-appellee, The Housing Authority of The City of Lake Charles, to cancel a lease and evict the defendant-appellant from the leased premises. The case was tried on the merits in the Lake Charles City Court on June 16, 1977, and at the end of the trial the ad hoc judge announced that judgment would be rendered in favor of the plaintiff. However, a formal judgment was not signed and rendered until June 20, 1977. On June 21, 1977 the defendant-appellant moved for and was granted a suspensive appeal to the Fourteenth Judicial District Court. The defendant filed his appeal bond the same day.

On June 30, 1977, counsel for the plaintiff-appellee caused to be signed by the trial judge an ex parte order of eviction, which ordered the City Marshall to evict the defendant-appellant from the premises- on June 30, 1977. The defendant immediately moved for writs, and the trial judge voluntarily stayed his Order of eviction pending the outcome of the defendant’s application for writs to this court.

On July 8, 1977, this court granted the defendant’s application for writs, staying the Order of ejectment rendered by the trial court on June 30, 1977, until the issue could be determined by the Fourteenth Judicial District Court. On July 28, 1977, the Fourteenth Judicial District Court signed an Order transferring the appeal, because of lack of jurisdiction, to this court.

On August 4, 1977, the plaintiff-appellee filed a Motion to Dismiss, arguing that the defendant-appellant did not timely perfect his suspensive appeal under LSA-C.C.P. Art. 4735, in that the defendant-appellant should have perfected his appeal within 24 hours from the time judgment was announced, and not 24 hours from the time judgment was rendered.

The relevant statutory provision is LSA-C.C.P. Art. 4735, which provides as follows:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspen-sive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”

The issue to be determined is what is meant by the phrase “rendition of the judgment of eviction.” Does it mean the appeal must be perfected from the oral announcement of the judgment, or from the formal signing of the judgment?

The First Circuit recognized this problem in Downey v. Bellue, 178 So.2d 778 (La.App. 1st Cir. 1965), but avoided coming to any conclusion on the ground that it was not necessary under the facts of that particular case. In London Properties, Inc. v. Topakoglu, 233 So.2d 259 (La.App. 3rd Cir.1970), this court did not discuss the problem, but apparently reached a conclusion that an appeal taken upon the signing of the formal judgment was timely.

In Herman v. Style Line Greetings, Inc., 289 So.2d 876 (La.App. 4th Cir. 1974), the court, citing LSA-C.C.P. Art. 4732, concluded that the failure of a trial court to immediately sign a judgment rendered any judgment later signed, out of the presence of counsel, null, and dismissed the appeal on the grounds that there was no valid judgment to appeal from. We respectfully disagree with this interpretation.

While we are aware of the decisions in Gribble v. Haas, 3 Peltiers Orl.App.Dec. 519, and Castagna v. Gonnet, 4 Peltiers Orl.App. Dec. 574, which have never been overruled, holding that the appeal must be taken from the rendition of oral judgment, we prefer to hold that an appeal suspending the execution of a judgment of eviction must be applied for and the appeal bond filed within twenty-four hours after the formal signing of the judgment of eviction. We conclude that LSA-C.C.P. Articles 1911 and 2083 must be read in pari materia with LSA-C. C.P. Art. 4735 and when so read the words “rendition of judgment” in Article 4735 must be taken to mean rendition of a final judgment which of course requires a written signed judgment.

It is ordered that the appellee’s motion to dismiss the suspensive appeal taken herein be and the same is hereby overruled and rejected and the instant appeal maintained.

MOTION TO DISMISS APPEAL DENIED.


text:
    HOUSING AUTHORITY OF the CITY OF LAKE CHARLES, Louisiana, Plaintiff-Appellee, v. Albert MINOR, Defendant-Appellant.
    No. 6232.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      See also 355 So.2d 270.
    Raggio, Farrar, Cappel & Chozen, by Frederick L. Cappel, Lake Charles, for defendant-appellant.
    Charles S. King, Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendant, Albert Minor, appeals from a judgment in favor of plaintiff, Housing Authority of the City of Lake Charles, Louisiana (Housing Authority), cancelling a lease agreement existing between these parties, awarding plaintiff certain sums claimed to be due as past due rent and other charges and condemning defendant to vacate the leased premises.

The sole issue presented is whether the judgment rendered in this case was just and proper under the circumstances.

The facts giving rise to this suit are not disputed. The Housing Authority is the lessor and Albert Minor is the lessee of certain property located at 1827 Rena Street in the City of Lake Charles, Louisiana. The written contract of lease between these parties provides for monthly rental payments to be made on the first day of each calendar month, and incorporates by reference certain written policies allowing a grace period of six working days to allow all tenants to pay their monthly rent. These written policies of the Housing Authority contain provisions to the effect that any bad check received by the Housing Authority which is not made good by 4:30 P.M. on the sixth working day of each month will be considered the same as not paying the rent and surcharges for that particular month. Along with other numerous terms and conditions, the written lease contract allows termination of the lease by the Housing Authority at any time for serious or repeated violation of any terms of the lease or for any other good cause.

On Monday, May 9, 1977, defendant’s wife paid the rent due for the month of May, 1977 with a third party check from defendant’s employer. This constituted timely payment of the rent in accordance with the grace period, as the check was tendered on the sixth working day of the month. However, on Friday, May 13, 1977, the check was returned to the Housing Authority marked “RETURNED NOT SUFFICIENT FUNDS”. On that same day, a written notice to vacate the premises for non-payment of rent and/or other charges then due was hand delivered to defendant’s wife. Defendant was unable to make the check good that day because the Housing Authority office had closed when he returned home. On the following Monday, May 16, 1977, defendant’s wife again paid the rent which was accepted by the Housing Authority and deposited in an escrow account pending final disposition of the eviction proceedings.

On June 6, 1977, a petition was filed in the City Court of Lake Charles by the Housing Authority seeking judgment for certain sums of money allegedly due under the terms of the lease, cancellation of the lease and eviction of the defendant. After trial on the merits, judgment was rendered granting plaintiff the relief prayed for, subject to a credit for all sums of money of defendant presently held by plaintiff in escrow.

We note at the outset that while ordinarily a lessor may dissolve a lease for failure on the part of the tenant to promptly pay the rent when due, it is also well settled that the right to dissolve a lease is subject to judicial control according to the circumstances. Baham v. Faust, 333 So.2d 261 (La.App. 1st Cir. 1976); Farmers Gas Company, Inc. v. LaHaye, 195 So.2d 329 (La.App. 3rd Cir. 1967); Lemoine v. Devillier, 189 So.2d 694 (La.App. 3rd Cir. 1966, writ refused); Brewer v. Forest Gravel Co., Inc., 172 La. 828, 135 So. 372 (La.1931); Edwards v. Standard Oil Co. of Louisiana, 175 La. 720, 144 So. 430 (1932) and cases therein cited.

As we interpret the above cited jurisprudence, our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.

In Lee v. Abernathy, 19 So.2d 670 (La. App. 2nd Cir. 1944, certiorari refused), defendant’s royalty check to plaintiff was dishonored when presented for payment. As soon as defendant learned of the check’s dishonor, he obtained another one and tendered same to plaintiff’s father for credit to plaintiff’s account. Acceptance of the check was declined. The check was later cashed without prejudice in accordance with an agreement between the parties for the protection of both sides. Plaintiffs brought suit to annul the lease, alleging in the alternative, that the lease was null and void because of defendant’s delay in paying the royalty. The circuit declined to grant cancellation of the lease, stating:

“Defendant had good reason to believe the dishonored check would be paid when presented. It was drawn on a bank in Lake Charles, Louisiana, in which he carried two different accounts. He' does an annual business as contractor in excess of $60,000. He acted promptly when first informed of the check’s dishonor. He only learned of this when he returned to the City of Alexandria following a few days’ absence after issuance and delivery of the check to Herman P. Lee.
It would be extremely inequitable in view of all the facts and circumstances of the case, to adjudge the lease null and void because of the brief delay in paying the rentals. We decline to so hold.” (emphasis added)

In Edwards v. Standard Oil Co. of Louisiana, supra defendant mailed a check on July 10th for the rental payment due July 15th; but, owing to some oversight, or fault in mail deliveries, the check did not reach plaintiff until July 21st. Plaintiff returned the check on the same day. Plaintiff brought suit to have the defendant vacate the premises for non-payment of the rent. Our Supreme Court in declining to grant plaintiff relief stated:

“Moreover, where ‘defendant was offered its money, and could have had it before it even brought suit to annul the contract (lease),’ he cannot annul the lease for alleged nonpayment of the rent. ‘Our law does not contemplate that contracts shall be annulled by one party where the other is able and willing to perform his own part of it as soon as demanded of him’. Hemsing v. Wiener-Loeb Grocery Go., 157 La. 189, 102 So. 303, 304.
Hence, although ‘it is true that ordinarily a lessor may dissolve a lease for failure on the part of the lessee to pay the rent promptly when due, (nevertheless) the right to dissolve a lease is subject to judicial control according to circumstances.’ ” (citations omitted)

In Farmer Gas Company, Inc. v. LaHaye, supra, the rental payment due August 15th under the terms of a written lease was not timely paid in spite of notice to plaintiff that the rent due on that date had to be paid promptly, despite whatever custom had existed in the past of accepting the rent late. On September 23rd, defendants gave written notice to vacate the premises for failure to pay the rent. On October 4th, plaintiff mailed a check to defendants for payment of the rent. Defendants refused to accept the check and returned same. On November 16th, plaintiff notified defendants of its desire to exercise its option to purchase the property in accordance with the terms of the written lease. This Court, after careful consideration of the circumstances of that case, concluded that the lease in question should be cancelled. However, in view of the numerous equitable considerations presented, this Court allowed cancellation only as of a date subsequent to plaintiff’s exercise of its option to purchase. The court concluded that plaintiff was entitled to specific performance of this option.

In the instant case, defendant contends that the circumstances presented here warrant an exercise of this Court’s equitable discretion. We agree.

Our careful examination of the record discloses that the defendant and certain members of his family (now totaling sixteen persons) have resided in this housing project for approximately nine years. During this period of time, there has only been one previous occasion when defendant was late with his rental payment. This occurred about seven years ago, when defendant was waiting to receive a welfare check. Defendant has worked for his present employer for about two years. He had previously been paid by check from his employer and had never had one of these checks returned before this incident. Defendant normally cashes his paycheck at a bank or at the place of business of a local merchant.

Defendant usually gets paid every Friday. On Friday, May 6, 1977, it was late when defendant got off work. This prevented him from cashing his pay check as was his normal practice. Instead, defendant’s wife paid the rent on Monday, May 9th with the check bearing defendant’s endorsement. Defendant received notice on Friday, May 13th the check had been returned, however, by the time he got home with the money, the Housing Authority office was closed. Defendant’s wife subsequently paid the rent on Monday, May 16th. The money was accepted by the Housing Authority and she was given a receipt stating that the money was being deposited in escrow. Defendant continued to occupy the premises at the time of trial and presumably continues to do so during the pendency of this appeal. The Housing Authority appears to have continued the practice of accepting defendant’s rental payments, depositing same in a so-called “escrow account”.

Considering the above, we conclude that defendant was the victim of an unfortunate set of circumstances, which he could not have possibly foreseen and over which he had no control. Defendant made timely presentment of the rental payment during the grace period. He had no indication that the check from his employer with which he paid the rent was no good. He had never had one of these checks returned in the previous two years that he had worked with this employer. When notified that the check had in fact been returned, he proceeded with due haste to try to remedy the situation. The rent was in fact paid by the defendant’s wife and accepted by the Housing Authority as soon as it became possible to do so. Defendant did not cause or contribute to the • unfortunate set of circumstances which gave rise to this suit, and considering the equitable considerations presented here, we will grant defendant the relief that he seeks.

In view of these findings, we do not reach the question as to whether or not the acceptance by the lessor of the rental payments prior to filing of the eviction proceedings (even though under an “escrow receipt”) would pretermit the right of the lessor to demand cancellation of the lease and eviction of the tenant.

For the above and foregoing reasons, the judgment of the City Court of Lake Charles, Louisiana, is reversed and set aside and it is now ordered that plaintiff’s demands be rejected, subject to the right of the Housing Authority to apply the funds deposited in the escrow account to the rental and surcharges accrued under the aforesaid lease since the institution of this suit. Costs at the trial level and on appeal are to be borne equally between plaintiff and defendant.

REVERSED AND RENDERED.

      . The suit for eviction was not filed until June 6, 1977. However, defendant had been served with a notice to vacate three days prior to this payment.


author: BOUTALL, Judge.

text:
    Paul Leo THIBODEAUX v. Eugene Paul THIBODEAUX.
    No. 9178.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1978.
    Edward J. Villere, New Orleans, for relator.
    Floyd J. Reed, Metairie, for respondent.
    Before LEMMON, BOUTALL and BAILES, JJ.
   BOUTALL, Judge.

We granted a writ of certiorari to determine the validity of a judgment overruling defendant’s exception of venue in a summary proceeding to establish support for a major child alleged to be physically, totally incapacitated from doing any work of reasonable character.

The facts are that Paul Leo Thibodeaux, of lawful age and a resident of the Parish of Jefferson, seeks support from his father, Eugene Paul Thibodeaux, a resident and domiciled in St. Tammany Parish, due to physical incapacity to support himself. Previous child support had- been awarded as an ancillary to a divorce suit between the child’s mother and father, and this was terminated when the child became an adult, September 15, 1977. That suit had been filed in the Parish of Orleans, and the ancillary issue of alimony for the wife is still pending. The new suit was also filed in the Parish of Orleans, and because the child alleges himself to be a resident of Jefferson Parish and the defendant father is domiciled in St. Tammany Parish, there is no venue in Orleans Parish unless venue has been waived.

The first pleading filed by the elder Thi-bodeaux was a document entitled “Exception to Jurisdiction” alleging the defendant is domiciled in St. Tammany and must be sued at his domicile. It constitutes the declinatory exception of improper venue, C.C.P. Article 925(4) which shall be pleaded prior to answer. C.C.P. Article 928. The institution of child support may be sought by use of summary proceedings, C.C.P. Article 2592(8), which does not require an answer, C.C.P. Article 2593, and the exception was filed prior to the time of trial.

The issue here presented is whether the defendant’s actions have come within the waiver provisions of C.C.P. 925:

“When a defendant makes an appearance, all objections which may be raised through the declinatory exception, except the court’s lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.”

The procedural posture of this case is that on the date the petition was filed, the judge signed an order to show cause on September 23,1977 why alimony should not be paid, and why petitioner should not be permitted to litigate in forma pauperis. The hearing date coincided with the hearing date set in the matter of the wife’s entitlement to alimony. Personal service was effected on September 21, 1977 and Eugene Thibodeaux with his attorney were present in court on the 23rd. The minute entry on that day showed only that both of the cases were continued to October 7th. Before the case was called on October 7th, the defendant filed his exception of improper venue. On that date, the exception was taken up and overruled. The trial judge gave the following oral reasons:

“This matter was originally set for September 23, 1977 and it was continued to October 7th, 1977. For what reason my records do not reflect. I think an appearance has been made and I take the position a general appearance has been made and therefore Mr. Villere has waived the jurisdiction. Mr. Villere strenuously opposes that, indicating he really in effect has made no appearance whatsoever and therefore has not submitted himself to the jurisdiction. I do this for the purpose so he will take writs to the Court of Appeal to determine this issue. Is that right?”
* if! * * * *
“THE COURT:
“Let the record reflect that on the 23rd of September, 1977 both lawyers were in the courtroom and present but the matter was not presented for trial and I did not hear anything.
“MR. REED:
“The Court continued the case, if I recall, because of the press of his docket. “THE COURT:
“He says because of the press of my docket, it is probably true.”

We cannot agree that the defendant has made an appearance as would constitute a waiver of his right to except as provided in C.C.P. Article 925. First we refer to the provisions of C.C.P. Article 7 which defines for such purposes what is meant by general appearance. We note that the defendant herein has done nothing which would constitute a general appearance. Had the defendant moved for a continuance, he would have sought relief other than the enumerated items mentioned, and would have made a general appearance. Karno v. Louisiana Tax Commission, 233 So.2d 592 (La.App. 4th Cir., 1970). But the defendant in this case did nothing. He and his attorney were simply present in court and the mere presence in court does not constitute a general appearance. Freire v. Wiles, 284 So.2d 817 (La.App. 4th Cir. 1973). The plain wording of Article 7 only considers the party to make a general appearance when “he seeks therein any relief other than * * As we stated in Freire, when Article 7 calls for a general appearance this means by filing a pleading or some other entry into the case. Respondent has referred us to the case of Stanley v. Jones, 197 La. 627, 2 So.2d 45 (1941) as authority supporting his contention that agreement to a continuance showed intention to submit to the jurisdiction of the court, claiming this to be an act of the defendant constituting a general appearance. It is difficult for us to perceive that agreeing to not take up a case has the effect of agreeing to in effect take up the ease. But our record does not even show such an agreement. It simply shows that the court announced that because of the press of business, the case would not be taken up but would be continued. Had the defendant then objected and presented his objections to the court, perhaps he might have been considered as actively seeking relief other than that enumerated in Article 7, unless he accompanied with it his exception of improper venue.

Under the facts of this case, there has been no general appearance and waiver of the right to file exception of improper venue. The exception was timely filed and should have been maintained. The prayer of the exception was for dismissal of the suit, but we note that C.C.P. Article 932 provides not only for dismissal in a case such as this, but also that the court may transfer the action to a proper court in the interest of justice. Accordingly, we reverse the judgment of the trial court and enter judgment herein maintaining the declinato-ry exception of improper venue and remand this matter to the trial court for the entry of a dismissal or for a transfer to a proper court in accordance with C.C.P. Article 932.

REVERSED AND REMANDED.


author: MARVIN, Judge.

text:
    John Marshall REED et al., Plaintiffs-Appellees, v. Lee R. THOMAS, Jr., et al., Defendants-Appellants.
    No. 13449.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1,1978.

      Provosty & Sadler by Richard B. Sadler, Jr., Richard E. Chaudoir, Alexandria, for defendants-appellants.
    Walter C. Dumas, Baton Rouge, Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Defendants appeal from a judgment which avoided and annulled a deed from plaintiffs’ ancestor to their ancestor on the grounds that plaintiffs’ ancestor was fraudulently misled by defendants’ ancestor into believing she was selling either a particular pine tree or the timber on the land.

The deed, executed in 1936, conveyed 160 acres in Bienville Parish for $75 which was paid in cash by defendants’ ancestor. The deed recognized that back taxes were owed the State. The property was sold at tax sale to the State in 1921 before plaintiffs’ ancestor inherited the property from her father. Neither plaintiffs or their ancestor paid taxes on the property since that time. Defendants’ ancestor paid the back taxes (an undetermined amount from this record) and redeemed the property from the State in 1938. Since that time, taxes have been paid by defendants.

Defendants contend that their pleas of liberative and acquisitive prescription should have been sustained below and that the lower court erred in finding fraud on the basis of testimony which was hearsay.

We agree that the evidence, excluding hearsay, does not support a finding of fraud on the part of defendants’ ancestor, but even should we accept the lower court’s findings, we hold that the plea of 10-years-liberative prescription under C.C. Art. 2221 should have been sustained, and for that reason reverse the judgment below and reject plaintiffs’ demands.

Plaintiffs’ ancestor was Henrietta Rainey Ellis. Defendants’ ancestor was Lee R. Thomas, Sr. Henrietta Ellis moved from Louisiana sometime before 1952 and died in Flagstaff, Arizona, about 1959. Lee R. Thomas, Sr. died in Rapides Parish about 1972, his wife having predeceased him.

The deed, dated September 23, 1936, in authentic form, is signed by Mrs. Ellis by mark, by Mr. Thomas, and by a notary and two witnesses, one of which was Belton Blewer who is referred to in the testimony. None of these persons testified at the trial. The deed, valid on its face, was signed at the notary’s office in Simpson, Vernon Parish, about 10 miles distant from Aleo, Louisiana, where Mrs. Ellis was staying in 1936 with her daughter and son-in-law, Capus Boylston. Boylston and his wife rode with Mrs. Ellis, Mr. Thomas and Mr. Blewer to the notary’s office but remained in the automobile while the others executed the deed inside the office. After they returned to Aleo, Mr. Boylston, his wife and his daughter, Annie Boylston Johnson, also a witness at the trial, assisted Mrs. Ellis in counting the $75 portion of the consideration which was paid in cash. Mr. Boylston and his daughter also testified to what was told them by Mrs. Ellis after the deed was executed. According to these witnesses, Mrs. Ellis said she placed great trust in Belton Blewer for whom she had once worked and was led by him to believe she was selling a particular pine tree for $75 when she signed the deed to her land.

About a year after the deed was executed, Mrs. Ellis contacted an attorney in the parish seat of Bienville Parish. This attorney — now retired Judge Percy Brown of the Second Judicial District — kept his file of this matter which included his handwritten notes of the consultation and of his cursory examination of the public records. Also contained in the file are copies of letters Judge Brown wrote to Mr. Thomas and to Mrs. Ellis. The letter to Mr. Thomas, dated September 30, 1937, was sent by registered mail and the postal receipt signed by Mr. Thomas is also in the file. This letter refers to the deed by date and by property description and states that Mrs. Ellis “simply sold the timber . . . [not the land, and was] promised whatever else the timber made above the seventy-five dollars.” The letter demanded a “correction” of the deed and threatened a “suit to set this deed aside . . . ” Judge Brown’s letter to Mrs. Ellis of October 28, 1937, reads in part:

“[Mr. Thomas] has not been in to see me I did see Mr. Belton Blewer . I found out that it would cost quite a lot of money to redeem this property from tax sale. . Mr. Thomas has not attended to this. As he has not come in and done anything ... it will now be up to us to file suit. Let me know what you want me to do and . whether or not you have raised the money for the filing of suit.”

The handwritten notes refer to the property being adjudicated to the State for taxes due in 1920 ($69) and for taxes due in 1921 ($42). The adjudication was in the name of J. Rainey, the deceased father of Mrs. Ellis, from whom she inherited in succession proceedings. Judge Brown’s notes also include the statement that Mrs. Ellis “just found out error on or about September 1, 1937.” On August 17, 1938, Mr. Thomas redeemed the property from the State in the name of J. Rainey, and since that time he or his heirs have paid the taxes on the property.

In 1952, Mrs. Ellis and others conveyed a one-half mineral royalty interest in the property for $1.00 and other valuable considerations to a New Orleans attorney, since deceased. According to testimony of plaintiffs, this attorney was going to straighten out the title.

At a much later time, some of plaintiffs consulted an Arizona attorney and eventually employed a Ruston, Louisiana, lawyer who filed suit on November 13, 1973. The ease was tried in 1975 and was decided in June 1977.

Clearly, the testimony by Mr. Boyl-ston and his daughter as to what Mrs. Ellis — a deceased person — said to them (whether before or after September 1,1937) was hearsay and should not have been admitted over defendants’ objection. See Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954). There, the heirs of the decedent-mortgagor sought to annul a mortgage executed by the decedent before his death. The heirs relied on decedent’s affidavit and his oral statements that the mortgage was a sham and that the money exhibited in the presence of the notary on the mortgage was decedent’s own money and not that of the mortgagee. Over the mortgagee’s objection, the trial court admitted this evidence. In its opinion and in a footnote (76 So.2d 4), the court stated:

“Even in cases where the hearsay is receivable as . admissions against interest by the deceased person, it is viewed as the weakest evidence . [footnote]. “ . . . Art. 2239 [La.C.C.] grants . forced heirs the right to annul by parol evidence the simulated contracts [of their ancestor] ... it does not sanction . . . hearsay testimony as a substitute for legal proof. The affidavit of decedent was inadmissible because it was hearsay and selfserving. The only declarations by a person since deceased, which are admissible as exceptions to the hearsay rule, are dying declarations, statements against interest and in rare instances pertaining to family history, relationship and pedigree . . . ”

See also Spiers v. Davidson, 135 So.2d 540 (La.App. 2d Cir. 1961) where an affidavit by a deceased person was held inadmissible.

Judge Brown’s notes were offered by defendants and were not objected to by plaintiffs. Likewise, defendants did not object to Judge Brown’s letters when offered by plaintiffs. While these items are in evidence, they are nonetheless hearsay, except insofar as Judge Brown’s testimony (Under oath and subject to cross-examination) as to the fact (not the truth) of the utterance by Mrs. Ellis. The evidentiary effect of the letters is somewhat different from the evi-dentiary effect of the handwritten notes because the letters were offered by plaintiffs while the notes were offered by defendants. See Merritt v. Wright, 19 La. Ann. 91 (1867). McCormick on Evidence, § 56 (2nd Ed. 1972). In any event, Judge Brown’s testimony as to what he said and did as Mrs. Ellis’ attorney in 1937, was admissible. His testimony as to Mrs. Ellis’ statements to him, even if objected to as hearsay, were admissible to show the fact of the utterances and to explain his acting on her utterances as her attorney. McCormick on Evidence, § 246 (2nd Ed. 1972); State v. Launey, 335 So.2d 435 (1976). Insofar as his testimony was against the interest of Mrs. Ellis, it was admissible as an exception to the hearsay rule. Miller, supra; Spiers, supra.

Mrs. Ellis knew, as early as September 1, 1937, that she had sold not the timber (or a pine tree) on the land, but her rights to the land itself. Judge Brown’s testimony also establishes that Mrs. Ellis knew that the property had been sold to the State for taxes before 1936 and that it would cost “quite a lot of money to redeem this property from the tax sale.” Plaintiffs do not dispute defendants’ ancestor’s payment of the back taxes.

We agree with the lower court’s finding that Mrs. Ellis was illiterate. We do not agree that the evidence is exceptionally convincing that defendants’ ancestor fraudulently withheld from her the information that she was signing a deed. The lower court placed emphasis on the fact that the $75 Mrs. Ellis received represents only 46 cents per acre. It is not shown how little or how much plaintiffs’ ancestor paid to redeem the land from the State. We are shown only that the taxes for 1920 and 1921 averaged about $60 per year and according to Judge Brown in 1937, it would cost “quite a lot of money” to redeem the land. Considering the recitals in the deed and viewed in this light in 1936, the $75 consideration to Mrs. Ellis is not totally lacking in seriousness and in no event can it be said that the deed is a disguised donation omni-um bonorum. C.C. Arts. 2239, 2444, 2464, 1497. See Owen v. Owen, 336 So.2d 782 (La.1976); Adams v. Trichel, 304 So.2d 740 (La.App. 2d Cir. 1974). A true donation is that which is purely gratuitous, which is made without condition and merely from liberality. C.C. Art. 1523.

Even should we agree, however, that the finding of fraud is supported by exceptionally strong and convincing evidence or even a preponderance, plaintiffs’ demands are nonetheless prescribed by C.C. Art. 2221. Moore v. Shell Oil Company, 228 So.2d 205 (La.App. 3rd Cir. 1969); Fried v. Bradley, 219 La. 59, 52 So.2d 247 (1950). Through astute counsel, plaintiffs deftly contend that because of the assumed fraud, Mrs. Ellis did not know the content of the deed which she signed and under these circumstances, no contract ever existed because the latter three of the four requisites of C.C. Art. 1779 are lacking. Plaintiffs argue that this conclusion is compelled by Arts. 1779 through 1818. The 2221 prescription for fraud, according to plaintiffs, applies only to cases where the content of the contract was known by the vendor. We cannot agree. See C.C. Arts. 1818, 1819, 1847, 1881, 1882, 1883, 1892, 1895, 1904, 2130, 2221, 2236.

Fraud is generally considered in the Code with error, violence and threats. Art. 1819. A signature to a deed procured at the point of a gun or the threat of death is, as it should be, vitiated by the threat. C.C. Arts. 1852, 1853. Whether the threatened party knows the content of the deed procured by threat is immaterial. As plaintiffs argue regarding fraud, property deeded or procured through threat is a theft. It is also robbery and may be armed robbery. C.C. Art. 1855 provides, however:

“No contract can be invalidated on an allegation of violence or threats, if it has been approved, either expressly after the violence or danger has ceased, or tacitly by suffering the time [“for prescription”] to elapse without causing it to be rescinded.”

Art. 2221, referring to the nullity of agreements, reads in part:

“In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by [a] particular law, that action may be brought within ten years.
“That time commences in case of violence, only from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered . . . ”

We believe the question of liberative prescription, if any, to be applied in actions to annul or to void agreements, was settled in Fried, supra. Fried is cogently explained in Moore, supra, in an opinion authored by now Justice Tate.

In Moore, plaintiff brought suit to annul quitclaim deeds executed by her ancestors. Plaintiff’s grounds to annul included the allegation that her ancestor had intended to convey only the timber and not the land itself and there was no consideration or cause for the deed. The 10-year liberative prescription of C.C. Art. 2221 was pleaded in bar. The court recognized Fried as the leading case under Art. 2221. In Fried, the deed by the plaintiffs’ ancestors which they sought to annul was an absolute nullity because of the failure to follow succession and probate formalities required by Louisiana law. The Moore court stated:

“[Fried] held that this prescription [of C.C. Art. 2221] bars an attack on deeds for all nullities established in the interest of individuals, whether absoiute or relative, that is, all nullities not in derogation of public order.” 228 So.2d 209. Emphasis supplied.

The Moore court went on to state:

“Unlike absolute nullities in derogation of public order and good morals — i. e., those established in the interest of society— nullities established to protect individual interests are subject to ratification, including tacitly through 2221’s application by ten-year’s inaction by the individual protected . . . ” 228 So.2d 209.

See also Miller v. Roos, 189 La. 804, 180 So. 643 (1938).

Neither the object (C.C. Arts. 1779(3), 1883-1892) nor the purpose (C.C. Art. 1779(4), 1893-1900) of the deed under attack is unlawful or imprescriptible because in derogation of public order. The sale of rights to an immovable is recognized (C.C. Art. 2449) and is not forbidden by law (C.C. Art. 1892). Contracts of a victim of either violence, threat, or fraud, while reprehensible, are not absolutely null, but are voidable by the victim (Art. C.C. 1881) who is expressly granted an action to avoid or annul such a contract (C.C. Art. 1882). These laws were established for the protection of the interests of the individual victim, as distinguished from other laws established for the protection of society, to use the language of Moore, and are subject to being deemed tacitly ratified through 2221’s application by ten-year’s inaction by the individual protected. 228 So.2d 209.

For more than 35 years, Mrs. Ellis (and constructively, her heirs), knew that record title was in Thomas or his heirs. Whether she signed the deed through error or because of someone’s fraudulent practices and whether she knew the content of the deed, her right (and that of plaintiffs) to avoid or annul the deed prescribed long before suit was filed in 1973.

Accordingly, the judgment below is reversed, defendants’ exception and plea of liberative prescription of 10 years under C.C. Art. 2221 is sustained and plaintiffs’ demands against defendants are rejected at her cost, including the cost of this appeal.

REVERSED AND RENDERED.

ON MOTION FOR REHEARING

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

PER CURIAM ON REHEARING APPLICATIONS:

As the opinion observes, the several plaintiffs were originally represented by a Ru-sten, Louisiana, law firm. After the record was lodged, three of the plaintiffs, including Annie Boylston Johnson, granddaughter of Henrietta Rainey Ellis, filed in this court a motion to enroll other counsel and discharge their original attorney. The other counsel was enrolled but the attempted ex parte discharge of Ruston counsel was not recognized by this court.

Ruston counsel timely filed a comprehensive and detailed brief of 22 pages for all plaintiffs, ably and authoritatively arguing that the lower court should be affirmed. This brief noted that “ . . . at a subse-

quent and proper time and in another court [Ruston counsel would] consider the question of substitution of another attorney and the discharge of these attorneys.” The other counsel also timely filed a brief and orally argued.

The Ruston counsel now complains that he did not receive formal notice of the date of oral argument in this court and that his clients — those plaintiffs who did not attempt to substitute counsel — did not have the benefit of oral argument on appeal. Both counsel for plaintiffs-appellees make other arguments in separate motions for rehearing that contain nothing, however, which was not considered by us in our original determination.

The Ruston counsel is correct in stating that he was not notified of the date of oral argument. This failure was an inadvertent oversight. It is conceivable that in some cases an injustice might result by such failure. In this case, however, considering the very comprehensive briefs which were timely filed, the oral argument of the other counsel, the mutual legal positions of all plaintiffs, and the motions for rehearing by all plaintiffs, we find that no injustice resulted and decline to grant a rehearing solely to allow further oral argument.

Rehearing denied.

      . This testimony should be contrasted with the handwritten notes and letters written by an attorney who was consulted by Mrs. Ellis about one year after the deed was executed. These notes and letters are discussed infra. The trial court said the principal cause of Mrs. Ellis’ agreement “was the sale of a tree, or perhaps timber, but not land.”
      The testimony of these witnesses is silent as to what defendants’ ancestor said to plaintiffs’ ancestor and at best, only implies his collusion with Belton Blewer. C.C. Art. 1847(9) reads:
      “If the artifice be practiced by a party to the contract, or by another with his knowledge or by his procurement, it vitiates the contract; but if the artifice be practiced by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be void on account of error, if that error be of such a nature as to invalidate it; in this case the party injured may recover his damages against the person practicing the fraud.” See Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952) which requires exceptionally strong proof of fraud, more than a preponderance of the evidence. C.C. Art. 1848, “fraud . . must be proved by him who alleges it.”

      . See footnote one.

      . See C.C. Art. 1847(5) and (6).

      . “Four requisites are necessary to the validity of a contract:
      “1. Parties legally capable of contracting.
      “2. Their consent legally given.
      “3. A certain object, which forms the matter of agreement.
      “4. A lawful purpose.”


author: HALL, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Everette E. BLAND, Jr., Defendant-Appellee.
    No. 13462.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1,1978.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Bernard L. Malone, Jr. by Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This appeal arises out of an expropriation pursuant to LSA-R.S. 48:441, et seq. The Highway Department expropriated the front 75 feet of defendant’s residential property bordering Pines Road as part of a project to provide an interchange at Interstate Highway 20 and Pines Road near its intersection with Highway 80. As a result, defendant’s home is now located approximately 32 feet from the new Pines Road right-of-way and 75 feet from the four-lane driving surface of the road. The trial court awarded defendant $8,125 as the total value of the property taken, including $5,075 for the land, $1,200 for the sprinkler system, $750 for the concrete driveway, $350 for trees and landscaping, and $750 for septic tank field lines. The court also awarded $11,035 as severance damages computed as follows:

Value before taking $65,000
Less: property taken 8.125
$56,875
Less: value of rear
i/3 of land 1,700
$55,175
Severance damages (20%) $11,035

At issue on the Highway Department’s appeal is the amount of the severance damages. The Department contends there were none. No issue is made of the amount awarded for the property taken.

Plaintiff asserts error in the award of any severance damages and relies principally on a market study made by one of its experts and on a comparable sale of property in the area.

The defendant contends that the change in character of his home from “estate type” to ordinary subdivision type, loss of 75% of the front yard and its concomitant loss of privacy, increase in traffic noise and fumes, and impairment of access due to construction of a median divider in front of his home were all items of damage properly considered by the trial court in fixing the amount of severance damages.

This court agrees with defendant and we affirm the trial court’s decision.

Defendant’s ten-year-old brick veneer residence was situated in the center of two lots which measured 225.46 feet fronting on Pines Road and approximately 350 feet deep.

The residence was originally set back 105 feet from the right-of-way of the two-lane road in compliance with the Hazel Hurst Subdivision restrictions. Such a deep setback gave the house the effect of being a country estate. That effect has been lost now that almost 75% of the front yard has been expropriated. The rear 121 feet of the property has a steep bank and ravine running through it which makes it considerably less valuable than the front portion. The rear portion was not considered to have been damaged by the taking, hence, the exclusion of its value from the computation of severance damages.

At trial, three experts, two for the Department of Highways and one for defendant, testified concerning the value of the land taken and the computation of severance damages.

Plaintiff’s experts testified that there were no severance damages. One of plaintiff’s experts did say that if there were any they were minimal and valued at only 5% of the value of the residence without the land and its detached improvements or $1,957. To support its opinion plaintiff introduced a market study which indicated that 82.8% of all lots subdivided in Caddo Parish had a minimum front setback of 30 feet or less. The present setback of defendant’s property would, thus, be in line with the vast majority of residential lots in Caddo Parish.

A comparable sale adjusted by plaintiff’s expert, James McNew, and defendant’s expert, O. L. Jordan, giving to defendant’s property an after value of $59,275 and $57,-075 respectively was also introduced in support of plaintiff’s position. Plaintiff argues that a comparable sale is the best indication of “after” value for purposes of calculating severance damages.

Defendant’s expert expressed the view that the loss of estate character, the loss of the front and most valuable portion of the lot, the increase in traffic noise and fumes and the limited access due to the median had damaged the remaining property.

He used the percentage approach to arrive at an amount of severance damages. He calculated the percentage of damage by reasoning that had the entire front yard been taken the residence would have suffered 50% severance damages but since the taking was only 71.43% of the front yard, the damage to the entire property was 71.43% X 50% or 35.71% of the value of the front 225 feet damaged by the taking. All the experts generally agreed to and the court accepted a “before” value of $65,000. Subtracting the value of the land taken ($8,200) leaves an “after” value of $56,800 from which he subtracted the value of the undamaged portion ($1,700). He then calculated the amount of severance damages in round numbers to be $19,600 or 35.71% of $55,100.

The trial judge accepted defendant’s formula, recognizing that severance damages may be properly set at a percentage of the value of property remaining and citing City of Lafayette v. Babineaux, 297 So.2d 220 (La.App. 3d Cir. 1974). He was of the opinion, however, that taking into consideration the opinions of all the expert appraisers, the percentage of severance damage to the remainder was nearer to 20% of the remainder. The court indicated that it was not necessary to deduct the value of the rear 121 feet ($1,700) before calculating the amount of severance damages but did so anyway.

Severance damages are an award made to the owner to compensate him for any decrease in value of the remainder of his property due to a partial taking. Severance damages are defined as the difference between the value of the remaining property before and immediately after the taking. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975); State, through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973).

The one comparable sale relied on by plaintiff is not convincing or persuasive as to the after-taking market value of the defendant’s property. The sale was of property in another subdivision, on a two-lane section of the Pines Road, and different in characteristics from the property in question. Comparable sales, although often convincing evidence, are only one of the tests to be used in establishing market value.

The subdivision setback study made by the plaintiff’s appraisers also lacks persuasiveness as it relates to severance damage to defendant’s property. The property in question is not, even after the taking, typical subdivision property, either in size or location.

Some factors which may be considered by the expert appraisers in arriving at after-taking market value are limitation of access through construction of median dividers, State, Department of Highways v. Strickland, 290 So.2d 714 (La.App. 1st Cir. 1974), writs refused, 295 So.2d 177 (La.1974); State, Department of Highways v. Cangelosi, 290 So.2d 806 (La.App. 1st Cir. 1974); State, Department of Highways v. Bagwell, 255 So.2d 852 (La.App. 2d Cir. 1971), writ refused, 260 La. 456, 256 So.2d 442 (1972); increased traffic noise, fumes and vibration, State, Department of Highways v. Garrick, 260 La. 340, 256 So.2d 111 (1971); State Department of Highways v. Banquer, 308 So.2d 520 (La.App. 4th Cir. 1975); loss of privacy and appeal as “estate type” home, State, Department of Highways v. Banquer, supra; and loss of front yard and proximity to highway, State, Department of Highways v. Mims, 336 So.2d 24 (La.App. 3d Cir. 1976), writs refused, 339 So.2d 16 (La.1976).

The ■ percentage approach in determining amount of severance damages has been approved by the Supreme Court in State, Department of Highways v. Tyler, 326 So.2d 349 (1976).

This court finds no manifest error in the trial court’s finding of severance damages caused by the combination of the aforementioned factors. The amount of damages awarded fairly compensates defendant for the reduction in value of his remaining property.

The judgment of the district court is affirmed.

Affirmed.


author: GULOTTA, Judge.

text:
    Mr. and Mrs. Thorne D. HARRIS, Jr. v. Robert F. RYAN, M.D., et al.
    No. 9219.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 1978.

      Satterlee, Mestayer & Freeman, Charlotte A. Hayes, New Orleans, for plaintiffs-relators.
    Hammett, Leake, Hammett, Hulse & Nelson, Dominic J. Gianna, New Orleans, for defendant-respondent, American Hospital Supply Corp.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

On plaintiffs’-relators’ application, we granted certiorari and the matter, by direction of this court, has been submitted on the record and on briefs.

In this tort action, on motion of defendant, the trial judge ordered tangible evidence, a breast prosthesis in possession of plaintiffs’ counsel, be placed in the possession of defendant, American Hospital Supply Corporation, for the purpose of having out-of-state, nondestructive tests performed on the device under the following guidelines:

“1) The prosthesis shall be transported to and from plaintiffs’ counsel’s office to defendant’s laboratories at 600 Pine Avenue, Goleta, California, at defendant’s expense via recognized air-carrier.
2) The prosthesis shall be submitted to non-destructive testing for a period of seven to ten days.
3) Neither liquid nor solid material will be introduced or withdrawn from the prosthesis nor will the prosthesis be altered in any physical or chemical manner.
4) That the prosthesis shall be transported and handled in such a fashion to insure its integrity and availability for testing and on the trial.
5)That this Court shall retain jurisdiction over the prosthesis in order to grant whatever relief is necessary under the circumstances and to insure that the judgment herein is complied with.”

In opposition to defendant’s motion, plaintiffs sought an order from the court compelling examination of the device in New Orleans, within the jurisdiction of the court, or alternatively, an order directing defendant to pay travel expenses for plaintiffs’ counsel to accompany and safeguard the device to and from the out-of-state location where the testing is to be conducted. The trial judge denied the protective request sought by plaintiffs.

Although the trial judge properly ordered, after hearing, the production of the device for out-of-state testing (LSA-C.C.P. arts. 1461, 1462 and 1469), nevertheless, we are in agreement with plaintiffs’ argument that the guidelines established by the trial judge are insufficient to safeguard the integrity of the device. Defendant claims the tests cannot be performed within the territorial jurisdiction of the trial court. Under these circumstances, the susceptibility of tampering with the device, either in transportation or during testing, requires that plaintiffs’ counsel or an expert to be designated by plaintiffs accompany the device to the out-of-state testing site and be present at the testing of the prosthesis, at defendant’s expense. Without such a protective order, introduction into evidence of a non-defective prosthesis becomes suspect.

We are cognizant that the trial judge is vested with wide discretion in discovery matters, nevertheless, LSA-C.C.P. arts. 1426 and 1469 contemplate the issuance of any orders necessary to protect the rights of the litigants. The guidelines established by the court, in the instant case, do not provide sufficient protection.

Accordingly, the judgment of the trial court is amended. It is now ordered that plaintiffs make available to American Hospital Supply Corporation the breast prosthesis in plaintiffs’ possession for testing in accordance with the following guidelines:

1) The prosthesis shall be made available for testing at defendant’s laboratories at 600 Pine Avenue, Goleta, California, at defendant’s expense via recognized air-carrier. The prosthesis will remain in the possession of plaintiffs’ counsel or plaintiffs’ expert during transportation and will be made available to defendant for testing at defendant’s laboratories with the proviso that plaintiffs’ counsel or an expert designated by plaintiffs will be permitted to be present when the prosthesis undergoes nondestructive tests and with the further proviso that all expenses, including transportation, incurred in connection with the testing by plaintiffs’ counsel or plaintiffs’ expert, will be paid by defendant.
2) The prosthesis shall be submitted to nondestructive testing for a period of seven to ten days.
3) Neither liquid nor solid material will be introduced or withdrawn from the prosthesis nor will the prosthesis be altered in any physical or chemical manner.
4) The prosthesis shall be transported and handled in such a fashion to insure its integrity and availability for testing and on the trial.
5) This court shall retain jurisdiction over the prosthesis in order to grant whatever relief is necessary under the circumstances and to insure that the judgment herein is complied with.

As amended, the November 8, 1977 judgment of the trial court is affirmed.

AMENDED AND AFFIRMED.

      . See Ogea v. Jacobs, 344 So.2d 953, 960 (La.1977); American Mark Distributing Corp. v. Louisvilie & Nashville Railroad Co., 180 So.2d 869 (La.App. 4th Cir. 1965).


author: LEMMON, Judge.

text:
    In the Matter of the Arbitration between BACMONILA GARDEN APARTMENT, INC. and R. Grady WILLIAMS and Continental Casualty Company and Charles Ragusa and Son.
    No. 9272.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 1978.
    Pittman & Matheny, Iddo Pittman, Jr., Hammond, for plaintiff-appellee, Charles Ragusa & Son.
    Jefferson, Bryan & Gray, William J. Jefferson, New Orleans, for defendant-appellant, Bacmonila Garden Apartment, Inc.

      Before LEMMON, GULOTTA and GAR-SAUD, JJ.
   LEMMON, Judge.

This matter is before us on a motion to dismiss the appeal, initially raised by us and reurged by appellee.

Judgment was rendered on March 28, 1977, and notice of judgment was mailed the same day. Appellant filed a motion for a suspensive appeal on April 22, 1977, but could not furnish the required security. It did, however, pay the estimated appeal costs of $260.00 on May 13, 1977.

Appellant then filed a motion for devolu-tive appeal on June 21, 1977. Security was set at $250.00, and a bond in that amount was furnished on June 30, 1977. However, the period for perfecting a devolutive appeal, as prescribed by C.C.P. art. 2087, had elapsed on June 6, 1977.

Appellant argues convincingly that its timely payment of estimated costs should be regarded as the timely furnishing of security. Conceding that decisions such as Case v. Case, 316 So.2d 418 (La.App. 2nd Cir. 1975), have held that the requirement for furnishing security for an appeal is separate from the requirement for paying the clerk of the trial court for the cost of preparing the record and for filing fees, appellant argues these cases are not applicable since the passage of Act 708 of 1976 (amending C.C.P. art. 2126 to provide for estimation of costs immediately after taking the appeal and payment within 20 days). Appellant points out that costs are now paid before the expiration of the delay for furnishing security and therefore argues that, since security for a devolutive appeal is to secure payment of costs, the prepayment of estimated costs now serves that function.

We agree. Payment of estimated costs within the delay for appealing is the equivalent of furnishing a cash bond for these costs. Indeed, in the present case the clerk, after completion of the record, applied the estimated costs payment to the costs and the filing fees and remitted the unused balance of $108.00 to appellants after there was no longer a need for security.

We hold that the letter and the intent of C.C.P. art. 2087’s requirement of security was met by the payment of estimated costs within the delay for furnishing security. Since appeals are favored in law, the motion to dismiss the devolutive appeal is denied. However, since the security for a suspensive appeal has never been furnished, the suspensive appeal must be dismissed.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED, MOTION TO DISMISS DEVOLUTIVE APPEAL DENIED.

      . The Legislature, recognizing that security for costs is superfluous now that the costs are estimated and paid shortly after the appeal is taken, enacted Act 176 of 1977, dispensing with the requirement of security in devolutive appeals. However, Act 176 of 1977 is effective only as to those appeals in which the order of appeal was signed after January 1, 1978.


author: REDMANN, Judge.

text:
    Val A. SCHAFF, III, et al. v. A. F. LANDERS.
    No. 8515.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 1978.

      Val A. Schaff, III, John M. Currier, Schaff & Currier, New Orleans, for plaintiffs-appellees.
    Floyd F. Greene, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   REDMANN, Judge.

Defendant’s appeal seeks decrease of a judgment for $2,685 for attorney’s fees and plaintiffs’ answer seeks its increase to $7,500. Without reaching the argued issues of the amount and worth of the time spent by plaintiffs in working on defendant’s employment contract (for which alone suit was brought although other unpaid services were years earlier rendered), we reduce the judgment to $600.

The overriding problem in this case is that plaintiffs, having no express agreement on fees with their client and no past course of dealings which would inform defendant of their charges, failed to advise defendant that the cost of preparing his routine employment contract was rocketing past the reasonably expectable. In attorney-client contracts as in all others, oral as well as written, “if the doubt or obscurity arise for want of necessary explanation which one of the parties ought to have given, . . . the construction most favorable to the other party shall be adopted . . . ”, La.C.C.1958. We rule that the agreement implied a reasonable fee for the apparently uncomplicated work undertaken, and that plaintiffs’ silence, as to increase in fee as their- time increased inordinately, obliges a construction most favorable to defendant.

When one employs a lawyer for professional services and the amount or measure of the lawyer’s fees is not expressly agreed upon, there is a contract, including an implied promise to pay the lawyer “the value” of those services within the principle of La.C.C.1816:

Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract. To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value. .

See Camfrancq v. Pilie, 1846,1 La.Ann. 197; Bascle v. Perez, 1954, 224 La. 1014, 71 So.2d 551; C.C.1903; Comment, 1976, 50 Tulane L.Rev. 631, 637-640.

In late 1972, an employee who went to a lawyer for embodiment into legal form of a $2,000 per month, five-year contract of employment whose terms have largely been settled would reasonably expect to pay a few hundred dollars for the lawyer’s services. Practicing lawyers testified at trial that their fees for the contract in question — the value of their services — would have been $150 or $250 or so. Those lawyers also testified that if appreciably more time than anticipated began to be consumed, for any reason, in the contract preparation, they would notify the client that charges would exceed the normally expecta-ble.

The evidence does support plaintiffs’ position that they spent considerably more time than one might expect. To some extent, it also establishes that defendant was aware of, and in fact caused by telephoning and the like, a few hours of the extra time. Nevertheless plaintiffs never advised defendant that the time was getting out of hand, that their fees would be substantially more than might reasonably be expected (even allowing for extra time required by defendant himself).

We are not unaware of the admonition of Succession of Butler, La.1974, 294 So.2d 512, that the trial judge in attorney’s fee cases has broad discretion in fixing “quantum meruit” (a theory of recovery questioned by Oil Purchasers, Inc. v. Kuehling, La.1976, 334 So.2d 420). Our disagreement, however, does not proceed from a re-estimation of the amount or value of plaintiffs’ time (for which the trial judge’s estimate appears unassailable). Our disagreement proceeds from our view that the law obliged plaintiffs to give a “necessary explanation”, C.C.1958, before the time spent exceeded the reasonably expectable, and that plaintiffs’ failure to give that explanation obliges us to construe the contract as one for the reasonably expectable fée irrespective of the actual amount of time plaintiffs spent. The reasonably expectable fee was initially about $300, and the increase attributable to defendant’s own unnecessary expenditure of plaintiffs’ time brings the maximum allowable, in our view, to $600.

Judgment reduced to $600 with interest from date of trial court’s judgment; costs to be equally divided.