text:
    Larry BARRON, Individually and for the minor, James Ray Barron, Plaintiff-Appellant-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY and Tami H. Smith, Defendants-Appellees-Appellants Third-Party-Plaintiffs.
    No. 6980.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Gravel, Roy & Burnes, Dee D. Drell, Alexandria, for plaintiff-appellant-appellee.

      Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellees-appellants.
    Robert R. Roche, Baton Rouge, Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appel-lee.
    Before FORET, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This is a suit for damages arising out of an automobile-pedestrian accident. Named as defendants were Tami Smith and her insurer, United States Fidelity & Guaranty Company. These defendants filed third party demands against the City of Alexandria and the State of Louisiana through the Department of Transportation and Development (Office of Highways). Plaintiff subsequently amended his petition and named the City of Alexandria and the Office of Highways as additional defendants. Motions for summary judgment and exceptions of no cause of action were filed by the Office of Highways to the petition and third party demand. The trial court granted the motions for summary judgment and sustained the peremptory exceptions of no cause of action in favor of the Office of Highways dismissing the main demand and the third party demand against the Office of Highways. Plaintiff and defendants United States Fidelity & Guaranty Company and Tami Smith have appealed.

The issues are whether the trial court erred in granting the summary judgments and sustaining the exceptions of no cause of action.

The petition alleges that on August 19, 1977, during the noon hour, James Ray Barron was struck by a vehicle driven by Tami Smith while Barron was crossing Lee Street. The accident allegedly occurred on Lee Street between Warshauer Street and Masonic Drive (U.S. Highway 165). Mrs. Smith, traveling in a westerly direction, was attempting to change lanes preparatory to turning right onto Masonic Drive when the accident occurred.

The plaintiff’s petition and the City of Alexandria’s third party demand contain identical allegations of negligence by the Office of Highways. The allegations are as follows:

“5. (a) Failure to properly sign, paint, mark, control and erect traffic control devices and directions at and from the intersection of Lee Street and Masonic Drive (U.S. Highway 165) and the intersection of Lee Street and Warshauer Street so that pedestrians crossing Lee Street would be properly informed that the thoroughfare was two lane traffic in the westbound direction at the point of the accident giving rise to this litigation.
(b) Alternatively, erection of signs and traffic signals indicating that traffic proceeding in a westerly direction between Warshauer Street and Masonic Drive was authorized to proceed in two lanes westbound.
(c) Alternatively, sanctioning the use of Lee Street between Warshauer Street and Masonic Drive as two lanes westbound by failure to utilize the necessary traffic controls and enforcement to establish one lane of traffic in the westbound direction.”

In support of its motion for summary judgment, the Office of Highways filed an affidavit executed by one of its engineers, Thomas Danna, wherein Mr. Danna stated that Lee Street at its intersection with Warshauer Street is not a part of the highway system and thus the Office of Highways had no jurisdiction over that intersection. The accident allegedly occurred on Lee Street between Warshauer Street and Masonic Drive. The petition and the third party demand allege that improper traffic controls, at both intersections (Lee Street at its intersection with Warshauer and Masonic Drive) contributed to the occurrence of the accident. These allegations of the petition and third party demand bring up an issue as to proper traffic controls at the intersection of Lee Street and Masonic Drive, which intersection is a part of the state highway system.

The plaintiff introduced into evidence an agreement between the State of Louisiana, Department of Transportation and Development, and the City of Alexandria, which agreement acknowledges that Masonic Drive is a part of U.S. Highway 165. LSA-R.S. 48:193A places the responsibility on the Office of Highways for the maintenance of all municipality streets which form a continuation of a highway. This statute also authorizes the Office of Highways to contract with the municipality for such maintenance. The agreement herein was entered into pursuant to this statute.

Plaintiff also introduced the deposition of Mrs. Smith which reflected the occurrence of the accident as being on Lee Street between Warshauer Street and Masonic Drive.

We conclude that the trial court erred in its granting the Office of Highway’s motions for summary judgment. An issue of material fact exists as to whether the traffic controls at the intersection of Lee Street and Masonic Drive were a contributing factor in proximately causing the accident in question.

“It is well settled that a motion for summary judgment should be granted only if there is a clear showing that there is no material fact at issue.” Thomas v. Signal Insurance Company, 236 So.2d 874 (La. App.3rd Cir.1970).

As to the peremptory exceptions of no cause of action, the trial court was in error in sustaining the exceptions. The well established rule is that the exception of no cause of action is tried only on the face of the pleadings. The plaintiff and third party plaintiff allege that the Office of Highways was negligent and responsible, at least in part, for the accident giving rise to this suit. A cause of action is alleged and the exceptions must be denied. Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968); Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La.App.3rd Cir. 1979).

For the above reasons, the judgment appealed from is reversed and the matter is remanded for further proceedings. All costs of this appeal are assessed against defendant-appellee insofar as costs may be assessed against a state agency. Assessment of costs in the district court must await a final judgment there.

REVERSED AND REMANDED.

      . LSA-R.S. 48:193A provides in part as follows:
      “A. The board of highways is hereby directed to repair and to keep- in operating condition at its sole cost and expense, all municipal roads or streets which form a continuation of one of said highways, provided however, the final decision as to the designation or location of the particular municipal road or streets to be placed in the state system shall be left entirely up to the board of highways. At the request of the governing authority of a municipality the work may be contracted out to such municipality, but all such maintenance costs shall be paid for by the state.”


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Ted D. LeBLANC, Plaintiff-Appellee, v. Ernest LANDRY et al., Defendants-Appellants.
    No. 6987.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Davidson, Meaux, Sonnier & Roy, Richard C. Meaux, Lafayette, for defendant-appellant-appellee.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Randall C. Songy and Edward C. Abell, Jr., Lafayette, for defendant-third party plaintiff-appellee-appellant, Gilmore Manuf. Co.
    Voorhies & Labbe, E. Gregory Voorhies, Lafayette, Pugh & Craton, Lawrence G. Pugh, Jr., Crowley, Bernard, Micholet & Cassisa by Paul V. Cassisa, Metairie, Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendant-appellee.
    Donald R. Jory, Jennings, for plaintiff-appellee.
    Before WATSON, STOKER and DOU-CET, JJ.
   STOKER, Judge.

This is a suit for personal injuries allegedly suffered by the plaintiff, Ted D. LeBlanc, as a result of his fall into a grain bin. Made defendants in the petition are: (1) Ernest Landry, the owner of the land upon which the grain bin was situated; (2) Gilmore-Tatge Manufacturing Company, the manufacturer of the bin; (3) Dupont Manufacturers, Inc. (hereinafter referred to as Dupont, Inc.) the alleged installer and servicer of the bin; and (4) Reed-Joseph Company, the alleged distributor of the bin. Subsequently, Chester Guidry, the lessee of the land and plaintiff’s employer, intervened for workmen’s compensation payments which he had made to the plaintiff. Also, Gilmore-Tatge, filed a third-party demand against Landry and Dupont, Inc. asking for indemnity in the event it was found to be liable to the intervenor.

After answering the plaintiff’s petition, Dupont, Inc. filed a motion for summary judgment in response to plaintiff’s demands. On January 5, 1978, the trial judge signed a judgment granting Dupont, Inc.’s motion dismissing it from the case. However, at the time this judgment was signed, Gilmore-Tatge had not been served with the plaintiff’s petition. Hence, on July 17, 1978, Dupont, Inc. filed a motion for summary judgment in response to the third-party demand of Gilmore-Tatge. A hearing was held on this motion on September 14, 1978, and the trial judge signed a judgment granting the motion September 25,1978. It is the September 25th judgment from which Gilmore-Tatge Manufacturing Company and Ernest Landry appeal. The issues presented by this appeal are:

(1) Did the trial judge err in considering certain affidavits and depositions, which were not served on Gilmore-Tatge, in deciding the motion for summary judgment;
(2) Was the trial judge correct in holding that no “genuine issue of material fact” was presented with respect to the third-party demand filed by Gilmore-Tatge against Dupont, Inc.?

ADMISSIBILITY OF AFFIDAVITS AND DEPOSITIONS

The gist of Dupont, Inc.’s motion for summary judgment filed in response to the third-party demand of Gilmore-Tatge is its assertion that the third-party demand essentially reiterates the same allegations contained in the plaintiff’s petition and does not raise any new fact issues. Thus, they argue, since the plaintiff’s claim against Dupont, Inc. was dismissed, likewise the claim of Gilmore-Tatge should be dismissed. Dupont, Inc. in support of its motion relied on the affidavits of its president, Clifton Dupont, certain documentary evidence referred to in the affidavit, and the depositions of DuPont and Charles Cowan which it attached and filed with the first motion for summary judgment. However, since service had not been effected upon Gilmore-Tatge at the time of the granting of the first summary judgment, Gilmore-Tatge was not served with that motion and the accompanying affidavits or the depositions.

Gilmore-Tatge was served through the mail with the motion filed against its demand. Also Gilmore-Tatge admits that counsel for Dupont, Inc. did furnish it with a copy of the deposition of Clifton Dupont, either by means of hand delivery or through the mail. However, Gilmore-Tatge has never been served with copies of the affidavit of Clifton Dupont, the documentary evidence or the deposition of Charles Cowan. On this basis, Gilmore-Tatge contends that the admission of the above mentioned evidence at the hearing on the summary judgment presently before us on appeal was prejudicial error on the part of the court below.

We conclude that it is unnecessary to decide the issue of the sufficiency of service since we find that Gilmore-Tatge waived any error by failing to object at trial. The exception of lack of service is one which is waived if the excepting party makes an appearance. LSA-C.C.P. art. 925, Bunge Corporation v. Emmons, 320 So.2d 230 (La.App. 3rd Cir. 1975); P. R. Insulation, Ltd. v. Performance Contractors, Ltd., 271 So.2d 320 (La.App. 3rd Cir. 1972). A respondent, such as Gilmore-Tatge in this case, waives service of a motion for summary judgment if he makes a general appearance at the hearing on the motion. Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir. 1965).

In the present ease, however, Gilmore-Tatge does not in actuality object to the sufficiency of the service of the motion itself and in any event under Normand made a general appearance at the hearing. What Gilmore-Tatge is technically arguing in its brief to this court is that the trial court erred in considering the above-mentioned affidavit and depositions which were not served on it by Dupont, Inc. Gilmore-Tatge also made the same argument in a brief submitted to the trial judge approximately two months before the hearing on the motion. However, there is nothing in the record which would indicate that Gilmore-Tatge objected to the use of the evidence at the hearing. Since Gilmore-Tatge failed to note its objection at the trial level, it waived its right to contest the admission of the evidence on appeal. Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1976).

GENUINE ISSUE OF MATERIAL FACT

Having concluded that the trial judge acted properly in considering the disputed evidence at the summary judgment hearing, we must now consider whether the lower court erred in finding that there was no genuine issue of material fact presented by the third party action of Gilmore-Tatge against Dupont, Inc. The evidence which was admitted at the hearing and upon which the trial judge relied in making his ruling included the affidavit of Clifton Du-pont and the depositions of Chester Guidry, Ernest Landry, Charles Cowan and Clifton Dupont. The affidavit and the depositions of Dupont and Cowan were filed by Du-pont, Inc. in support of its motion; the depositions of Landry and Guidry were filed in opposition to the motion.

Gilmore-Tatge argues that the sum of this evidence manifests a genuine issue with regard to its allegation that Dupont, Inc. furnished the wrong parts for and negligently repaired the auger which was the source of the plaintiff’s injuries. On the other hand, Dupont, Inc. argues that while there are certain statements in the depositions of Guidry and Landry when taken out of context could be grounds for finding a genuine factual issue, when taken as a whole, the evidence clearly evinces that Du-pont, Inc. had no connection with the auger in question.

In deciding any motion for summary judgment the following general principles must be borne in mind. A summary judgment is not to be used as a substitute for a full trial of a controverted fact issue which is material to a decision in the case. Where supporting documents of the proponents and opponents of a motion for summary judgment indicate that a genuine issue of material fact may exist, the motion should be denied. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975); Berthelot v. Travelers Insurance Company, 304 So.2d 59 (La.App. 1st Cir. 1974). The summary judgment procedure should be used cautiously and sparingly and any reasonable doubt concerning the existence of such should be resolved against the mover and in favor of a full trial on the merits. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974). Moreover, the fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of a full trial on the merits to resolve the disputed issue. Dougharty v. Calkraft Paper Co., 335 So.2d 772 (La.App. 3rd Cir. 1976).

Bearing in mind the above stated legal precepts, we are of the opinion that a genuine issue of material fact is presented by the case at bar. If we accepted the true situation to be that set out in the affidavit and deposition of Clifton Dupont and the deposition of Charles Cowan, then we would be required to render judgment in favor of Dupont, Inc. However, under Article 966 of the Louisiana Code of Civil Procedure and the jurisprudence cited above, we cannot weigh conflicting evidence on a material fact and if any such conflict exists the motion for summary judgment must be denied. There are statements in the depositions of both Chester Guidry and Ernest Landry which support to some extent the allegations that Dupont, Inc. serviced and furnished parts for the auger. In this regard, we quote the following from page 16 of the transcript of Chester Guidry’s deposition:

Q. Now, you told us also that you, yourself, changed the auger.
A. Yes.
Q. But that you bought it from Dupont?
A. Yes, sir.
Q. You went in and they knew exactly the size?
A. The exact size, they cut it, and everything, and I just bought it, and I fit it in there myself.

Also supporting the existence of a material fact issue concerning whether Dupont, Inc. serviced or provided parts for the repair of the auger is testimony of Ernest Landry contained at pages 114-115 of the trial record, which reads as follows:

Q. Now, you said Dupont out of Rayne. You mean that’s Dupont Manufacturing, Inc.?
A. Yeah, I guess so.
Q. That’s who you think it was?
A. Yeah. Well, they worked on it, I know.
Q. How do you know that Dupont Manufacturing worked on it?
A. Well, they — because I would go back and buy some parts from ’em when I needed some.
Q. And you know where Mr. Dupont’s place of business is?
A. Yes Sir.
Q. And where is that?
A. Highway 90 east of Rayne. On Highway 90.

Contrasted to the deposition testimony of Landry and Guidry is the assertion in the affidavit and deposition of Clifton Du-pont to the effect that the records of Du-pont, Inc. do not reflect that it has ever worked on the auger and “that to his certain knowledge, the auger and pit ‘(sometimes referred to in the petition and bin)’ were not sold, installed, serviced or repaired by Dupont Manufacturers, Inc.” (Tr. pp. 26-27) When this controverting assertion is considered in the light of the testimony of Landry and Guidry, a genuine issue material to a decision by the trier of fact is presented and thus we have no authority to determine the merits of this case. Dough-arty, supra. Hence, the case will be remanded to the district court for a full trial of the fact issue presented.

For the foregoing reasons, the judgment of the district court granting Dupont Manufacturer, Inc.’s motion for summary judgment is reversed and the case is remanded for trial consistent with the views herein expressed. Costs of this appeal are to be borne by Dupont Manufacturers, Inc.

REVERSED AND REMANDED.

      . Reed-Joseph was dismissed from the suit pursuant to a motion for summary judgment. This dismissal was never appealed and is not before this court.

      . According to the brief filed by Gilmore-Tatge, it has yet to have been served with plaintiff’s petition in this case. The third-party demand was filed ancillary to the workmen’s compensation intervention of Chester Guidry.

      .This judgment was also never appealed and is not before this court.


author: WATSON, Judge.

text:
    Freida BORDELON, Plaintiff-Appellant, v. Joseph P. MARTINEZ, III, Defendant-Appellee.
    No. 6990.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      J. Minos Simon and Thomas D. Curtis, Lafayette, for plaintiff-appellant.
    Stephen J. Ledet, Jr., Opelousas, Daniel J. McGee, Mamou, for defendant-appellee.
    Before WATSON, STOKER and DOU-CET, JJ.
   WATSON, Judge.

This matter was consolidated for trial and appeal with our docket no. 6991, in which the positions of plaintiff, Freida Bor-delon and defendant, Joseph P. Martinez, III, her former husband, are reversed. Both parties have appealed from judgments in both suits.

Freida Bordelon was granted a separation and custody of two minor children, Beverly F. and Paula Jane Martinez, in this suit. (Four other children had reached the age of majority.) Joseph Martinez was subsequently granted a divorce in docket no. 6991 based on the parties living separate and apart for more than one year after a judicial separation. He stipulated that he had adequate income to provide for his former wife’s support, if it should be found that she was entitled to permanent alimony. Other judgments fixed the fee of the Notary Public who inventoried the community at $1,800 and the fees of the two appraisers at $1,000 each; ordered that a diamond ring, item no. 15 of the inventory, be declared the separate property of Freída Martinez; fixed child support for the one remaining minor (the other having reached majority) at $500 per month plus all educational costs and denied permanent alimony to Freída Bordelon.

The issues raised by the parties’ appeals relate to: the wife’s freedom from fault; the wife’s right to permanent alimony; the fees fixed for the Notary and appraisers; and the ownership of the diamond ring.

1. WIFE’S FREEDOM FROM FA ULT

It is contended that the default judgment of separation granted to Freída Bordelon does not amount to a determination that she was free from preseparation fault in view of the 1976 amendment to Civil Code article 141, which provides that a separation can be granted even though both parties are mutually at fault. The amendment was effective October 1, 1976, and Freída Bordelon’s suit was filed December 16, 1976, after its effective date.

The wife’s petition for separation alleges various instances of physical and mental cruelty by her husband. It also alleges that she had given him no cause for ill treatment. No preseparation fault on her part was alleged in the suit for separation and no postseparation fault in her husband’s subsequent suit for divorce. Although the separation was not contested by the husband, he was represented by counsel throughout the separation proceedings, which included a preliminary injunction against disposal of the community assets and a stipulation about alimony pendente lite and child support. The attorney for the husband approved the form of the judgment of separation. The husband is not entitled to relitigate the issue of his wife’s preseparation fault now. Although the amendment of LSA-C.C. art. 141 allows a separation when there is mutual fault, there is no allegation or evidence of mutuality of fault. The judgment of separation determined preseparation marital fault between the parties. The husband chose not to contest the issue at the time of the judgment of separation and cannot reopen it now. See Wilson v. Wilson, 317 So.2d 629 (La.App. 1 Cir. 1975), writ denied, 320 So.2d 912; Nethken v. Nethken, 307 So.2d 563 (La., 1975); and Bruner v. Bruner, 364 So.2d 1015 (La., 1978).

II. PERMANENT ALIMONY

The trial court correctly refused to reliti-gate the question of the wife’s fault but concluded that she is not presently entitled to permanent alimony, apparently because of a determination that she has sufficient means for her support under LSA-C.C. art. 160.

The trial court concluded that Freida Bordelon is not entitled to alimony at this time. The record establishes that she has sufficient means for her maintenance, although not in the style she enjoyed during the marriage. Her assets are valued at over $300,000. While many of these are not liquid, she does have $57,000 in savings which was received from the sale of the family home and $31,580.37 in stocks and bonds with a liquid value. There are other assets with substantial worth, including a twenty-five (25%) percent interest in Opel-ousas Medical Center Realty, Inc., which has net earnings of approximately $30,000 a year. According to Dr. Martinez, his former wife will receive $550 a month in dividends from this corporation. Although Ms. Bordelon testified that the only house she had found for sale to meet her needs was priced at $63,000, she is presently drawing interest on the $57,000 while living in a rented house. A wife is not required to sell a home in which she is living to be entitled to permanent alimony, but a prospective purchase of another home does not deprive her of present income from the funds on hand. See Loyacano v. Loyacano, 358 So.2d 304 (La., 1978). Compare Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4 Cir. 1978), writs denied, 358 So.2d 644, 645. If her circumstances undergo a change and her means become insufficient, Freida Bor-delon can reopen the question of permanent alimony.

III. FEES OF NOTARY AND APPRAISERS

The Notary Public appointed to inventory the community, Stephen J. Ledet, Jr., testified that counsel for both parties approved his appointment of John W. Wilson and Glinden J. Leger as expert appraisers to assist in the inventory. It was stipulated that Wilson and Leger are expert real estate appraisers. Each asked a fee of $1,400. The trial court set the Notary’s fee at $1,800 and that of the appraisers at $1,000 each. Both parties to the suit contend that these fees should be reduced. The Notary testified that he spent over 55V2 hours on the inventory. After reviewing the extensive testimony of the Notary and appraisers about the work done in appraising a community of assets valued at over $600,000, we cannot say the fees awarded are excessive.

IV. THE DIAMOND RING

Dr. Martinez testified that he purchased the diamond ring in dispute from his brother Paul, who had acquired it from the estate of their mother. The question of the ring’s ownership never arose during the marriage, but it is agreed that it has always been worn by Freida Bordelon. She contends that it was purchased as a gift for her, while he contends that he didn’t mind her wearing it but did not intend it as a present. The ring has been in the wife’s possession since its purchase and the evidence indicates that it was a manual gift of a movable to the wife, C.C. art. 1539.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of appeal are taxed to Dr. Joseph B. Martinez, III.

AFFIRMED.

      . Freida Bordelon is designated the appellant because hers were the first perfected.

      . LSA-C.C. art. 160:
      “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall . not exceed one-third of his income when:
      1. The wife obtains a divorce;
      2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
      3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person. This alimony shall be revoked if it becomes necessary, and terminates if the wife remarries.”

      . C.C. art. 1539:
      “The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formaility.”


text:
    Joseph P. MARTINEZ, III, Plaintiff-Appellee, v. Freida BORDELON, Defendant-Appellant.
    No. 6991.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    J. Minos Simon and Thomas D. Curtis, Lafayette, La., for plaintiff-appellee.
    Stephen J. Ledet, Jr., Opelousas, Daniel J. McGee, Mamou, for defendant-appellant.
    Before WATSON, STOKER and DOU-CET, JJ.
   WATSON, Judge.

For the reasons assigned in the consolidated case, docket no. 6990, Freida Bordelon v. Joseph P. Martinez, III, the judgment of the trial court herein is affirmed. All costs of appeal are taxed to Dr. Joseph P. Martinez, III.


author: DOUCET, Judge.

text:
    Roger J. MATT et al., Plaintiffs-Appellees, v. James J. LAPEROUSE et al., Defendants-Appellants.
    No. 6992.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Leon J. Minvielle, III, New Iberia, for defendants-appellants.
    Armentor & Wattigny, Gerard B. Wattig-ny, New Iberia, for plaintiffs-appellees.
    Before WATSON, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

This is an action in redhibition brought by plaintiffs for a reduction in the purchase price of a house sold to them by defendants. The district court found that the house contained a redhibitory vice and awarded a reduction of the purchase price in an amount sufficient to cure the defect. Defendants have appealed. For reasons which will follow, we reverse and remand this case to the district court for additional findings of fact.

On October 18, 1976, defendant, James J. Laperouse, sold a house and lot in New Iberia, Louisiana to plaintiffs, Roger J. and Joan Perron Matt. The act of sale recited that it was made “with full warranty of title” and contained no warranty restrictions of any kind. At the time of the purchase, plaintiffs had been living in the house for approximately two months, beginning in August of that year. They continued to do so until some time in early 1977 and subsequently sold the home to Mr. and Mrs. Russell Romero.

As a result of complaints by the Romeros about the performance of the central air conditioning unit in the house, plaintiffs engaged Mr. Steve Morgan, accepted by the trial court as an expert in the field of residential air conditioning. Mr. Morgan found that the air conditioning system was too small to produce a satisfactory differential between the temperatures inside and outside the home, except when the outdoor summer temperatures were relatively mild. The air conditioning unit was, therefore, replaced at a cost to the Matts of $875.00. The purchase price was reduced by that amount by the judgment of the district court.

The issues before this court on appeal are:

(1) Whether the central air conditioning unit was so deficient that it constituted a redhibitory vice, and

(2) Whether the limitation of warranties provided for in LSA-C.C. Article 2474 is the exclusive means by which a seller may escape liability for vices of the things he sells.

I

In Bermes v. Facell, 328 So.2d 722 (La.App. 1st Cir. 1976), which was relied on by the trial court, our brethren on the first circuit held that a central air conditioning system that was inadequate to cool the house with which it was sold constituted a redhibitory vice. We agree with that conclusion. Furthermore, there is ample testimony, both lay and expert, in the record before us to support the trial court’s finding that the air conditioning system was inadequate.

Defendants argue that despite the above, the air conditioning system could not constitute a redhibitory vice, because plaintiffs had lived in the house for two months prior to the sale and must have known of its performance. LSA-C.C. Article 2521 provides:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

The trial court concluded, and we think properly so, that although August is normally one of the hottest months of the year in this area, due to the particular weather conditions at that time, the habits of the plaintiffs, etc., the deficiency in the air conditioning system might not have been apparent to them. The court’s refusal to impute knowledge of the defect from the mere fact that plaintiffs had lived in the house prior to the sale was not unreasonable and will, therefore, not be disturbed.

II

Our Supreme Court in Rey v. Cuccia, 298 So.2d 840 (La.1974), said the following with regard to the sale of products with hidden defects:

“In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. Civil Code Articles 2475, 2476, 2520; Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). The seller, of course, can limit this warranty by declaring to the buyer the hidden defects at the time of the sale, Article 2522, or can otherwise limit his obligations as seller, providing he do so clearly and unambiguously, Article 2474.” (emphasis added)

It is clear from the above language and the Civil Code articles to which it refers that there are two means by which the seller can limit his implied warranties.

The district court was apparently only cognizant of the limitation of warranties contemplated by LSA-C.C. Article 2474, which provides:

“The seller is bound to explain himself clearly respecting the extent of his obligations: any obscure or ambiguous clause is construed against him.”

This provision has been construed to mean that although the implied warranties of the seller may be waived or renounced by the buyer, it must be done by clear and unambiguous language in the act of sale or chattel mortgage document. See Edwards v. Port AMC/Jeep, Inc., 337 So.2d 276 (La. App. 2nd Cir. 1976), writ denied 339 So.2d 854 (La.1976); Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App. 2nd Cir. 1976).

The judgment of the district court is clearly correct with respect to the above. However, LSA-C.C. Article 2522 provides:

“The buyer cannot institute the redhi-bitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale.' Testimonial proof of this declaration may be received.”

Mr. Laperouse testified that he had informed Mr. Matt prior to the sale that due to an addition made to the house after the installation of the central air conditioning system, additional air conditioning in the form of a window unit would be needed in order to adequately cool the house. Mr. Matt denied having been so informed.

The district court did not make a finding on this issue, yet under the terms of Article 2522 plaintiffs were not entitled to bring this redhibitory action if they had in fact been informed of the existence of the defect. Therefore, the court erred in failing to make this determination.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside and this matter is remanded to the district court for further proceedings consistent with the views expressed herein. Costs of this appeal are to be assessed one-half to the plaintiff-appellee and one-half to the defendant-appellant.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    Louanna CEASAR, Plaintiff-Appellant, v. GREAT FALLS INSURANCE COMPANY, Defendant-Appellee.
    No. 7001.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Payton R. Covington, Lake Charles, for plaintiff-appellant.
    Hunt, Godwin, Painter & Roddy, David Painter and Thomas L. Lorenzi, Lake Charles, Tom Withers, III and Leila S. Withers, Baton Rouge, for defendant-appel-lee.
    Before FORET, CUTRER and SWIFT, JJ.
   FORET, Judge.

This is a suit by plaintiff, Louanna Cea-sar, against Great Falls Insurance Company, seeking payment for property damage, etc. arising out of an alleged loss of her automobile, a 1974 Toyota. Great Falls Insurance Company is the comprehensive/collision insurer of the said vehicle. Great Falls filed an answer of general denial and subsequently filed a third party demand against one Graylin Bell who had borrowed plaintiff’s automobile and was driving it at the time of the alleged accident on March 11, 1977. The trial court dismissed plaintiff’s suit, and she has perfected this appeal.

Plaintiff alleges that she had loaned the car to a friend, Graylin Bell, on or about March 9, 1977, so that Bell could make the trip to New Orleans to see his brother who was in Charity Hospital, New Orleans, with a gunshot wound. On the way back from New Orleans, at approximately 2:30 A.M., plaintiff alleges, and Graylin Bell testified that he pulled off of the road, or somehow ran into a canal or ditch. Bell testified that he and his passenger, one Murray Johnson, got out of the car through the windows, and swam to safety. Bell further testified that he and Johnson hitched a ride to a service station, apparently on the Airline Highway, in the vicinity of Sorrento, and that Bell and the service station operator went back to the scene of the accident with a wrecker and a spotlight. However, they were unable to locate the vehicle. Bell asserts that it must have been totally submerged. It is important to note, at this point, that Bell could not give the name of the service station, or the name of the wrecker driver with whom he returned to the alleged scene of the accident. The wrecker operator was not subpoenaed to testify at trial. The car has never been found. Bell claims that the reason that he tried to pull off the road was that there were two cars behind him which were blowing their horns and blinking their lights, and that he thought that they wanted him to get out of the way, so he started to pull over off the road to let those cars by. When he pulled off the road, his car started sliding on wet grass and slid into the water.

After having gone to the site of the alleged accident with the wrecker driver, Bell did not return there until about a week later when he went there with an insurance adjuster.

Louanna Ceasar, of course, does not know what happened to her car, except what Graylin Bell told her. She stated in her testimony that she had no reason to believe anything other than what Graylin Bell had told her as to what had happened to the automobile. She does not state in her testimony, or allege in pleadings, that Graylin Bell or someone else may have stolen the automobile. Neither Graylin Bell nor Murray Johnson state that anyone stole the automobile. Certainly, neither this Court, nor the trial court, could make the deduction that the car was stolen. Therefore the provisions of the defendant’s policy insuring against loss by theft afford her no relief.

Graylin Bell and Mike Florio, an adjuster for Great Falls, went to the alleged accident site on March 17, according to the testimony of Florio. They could find no indication from the grass on the side of the road, or anything else, exactly where the car might have gone into the ditch. The area that they searched was a five-mile stretch of the Airline Highway between Interstate 10 and the Village of Sorrento. Florio further testified that he contacted the Sorrento Police Department, the Gonzales Police Department, and the Louisiana State Police, and that neither of these agencies had a report of an accident involving the plaintiff’s automobile.

The trial court, in oral reasons for judgment, found that plaintiff had failed to carry her burden of proof. The trial court further stated that he did not believe the testimony of Graylin Bell as to how the accident occurred, or even as to the occurrence of an accident.

General rules require plaintiffs to prove their claims to the satisfaction of the court, and it is the burden of the plaintiff to establish every fact essential to her recovery and establish that her claim, if any, falls within the policy coverage. Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4 Cir. 1970); Macaluso v. Watson, 188 So.2d 178 (La.App. 4 Cir. 1966); B.T.U. Insulators, Inc. v. Maryland Casualty Company, 175 So.2d 899 (La.App. 2 Cir. 1965). We agree with the trial court that plaintiff has failed to do so in this case.

In the absence of a showing that the trial court is clearly wrong in its findings of fact, and if a reasonable evidentiary basis exists in the record for its findings, this Court will not disturb these findings on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We not only find that the trial court was not “clearly wrong”, but we find it to be correct in its judgment dismissing plaintiff’s suit.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed against plaintiff-appellant, Louanna Ceasar.

AFFIRMED.


author: CUTRER, Judge.

text:
    Mable Claire Walton DUNHAM et al., Plaintiffs-Appellants, v. Lloyd C. NIXON, Defendant-Appellee.
    No. 7012.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Scofield, Bergstedt, Gerard, Hackett & Mount, John B. Scofield, Lake Charles, for plaintiffs-appellants.
    Baggett, McCall, Singleton & Ranier, Robert C. McCall, Lake Charles, for defendant-appellee.
    Before FORET, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

Plaintiffs seek a declaratory judgment to the effect that they, by virtue of possession by their ancestors in title for 30 years as owners of a certain tract of land in Calca-sieu Parish, should be declared the sole owners and that the defendant, an original co-owner, no longer has any interest in the property. From a judgment dismissing the action, plaintiffs appeal.

The issue in this case is whether sufficient notice of intent to adversely possess the jointly owned property was given to the co-owner. The trial court found under the facts presented that the notice of intent to possess adversely was not sufficient to begin the running of the prescriptive period to acquire the property. We affirm.

The trial court, in its written reasons for judgment, sets out the stipulated facts and the testimony of the witnesses as follows:

“The basic facts from which arises this case of action were stated in a Joint Stipulation of Plaintiff and Defendant. That stipulation reads as follows:

***** *

1.

‘The property involved in this litigation is described as follows, to-wit:

The Northeast Quarter of the Southeast

Quarter (NE/4 of SE/4), the Southwest Quarter of the Southeast Quarter (SW/4 of SE/4), South 30 acres of the Northwest Quarter of the Southeast Quarter (NW/4 of SE/4), Section One (1), Township Nine (9) South, Range Ten (10) West, Louisiana Meridian.

2.

On February 25,1921, Samuel J. Dunham conveyed the entirety of the property in question to Samuel H. Dunham (father of plaintiffs) and Lloyd C. Nixon. The deed also conveyed other property situated in Section Eleven (11), Township Nine (9) South, Range Ten (10) West, but this Section 11 property is not directly involved in this litigation. The consideration for this conveyance was that vendees would assume an outstanding mortgage affecting the property, and that vendees would care for Samuel J. Dunham, his wife, Mary Willie Dunham, and daughter, Bertha, for the remainder of their lives.

Subsequent to the said 1921 conveyance, Lloyd Nixon and his wife resided on the Section Eleven (11) portion of the property with Samuel J. Dunham and his wife. Lloyd C. Nixon left the premises sometime during the summer of 1921, but later returned and was residing on the premises when Samuel J. Dunham died in February, 1922. Lloyd C. Nixon left the premises subsequent to the death of Samuel J. Dun-ham and did not thereafter reside on any part of the property. Lloyd C. Nixon’s wife and daughter, however, did live on the property for a while in 1927 or 1928.

Samuel H. Dunham began residing on the Section 11 portion of the property in the summer of 1922, and continued residing thereon until it was sold in 1942, with the exception of approximately 9 months in 1924 when, in order to get work, the family lived in Richmond, Texas. When he did leave to find work, his family, for the most part, continued to reside on the premises. Samuel H. Dunham and his wife, Mable Claire Dunham, had three children who are your present petitioners.

3.

Until approximately 1942, the residence was situated upon the Section 11 property, although during the period 1921-1942 the Section 1 property involved in this litigation was partially under fence and limited farming and grazing operations were conducted by Samuel H. Dunham thereon. In the fall of 1945, a residence was constructed upon the Section 1 property. Samuel H. Dunham continued to live on the property until his death on May 25, 1972, and his wife, Mable Claire Walton Dunham, continued to live thereon until just before her death in August, 1977. Plaintiffs have continued to possess the property until this date.

4.

Since the year 1921, Samuel H. Dunham and his family have exercised possession of the property by various methods, including the following, to-wit:

(a) The continual payment of taxes and/or the obtaining of Homestead Exemption;
(b) The construction and maintenance of residences;
(c) The execution and recording of leases;
(d) The execution and recording of a mortgage;
(e) The execution and recording of Acts of Conveyance;
(f) Piling and recording of Succession proceedings pertaining to Samuel H. Dunham and Mable Claire Dunham;
(g) Execution and recording of a pipeline right-of-way and servitude agreement;
(h) The clearing and cultivation of the land;
(i) The cutting of trees and timbers;
(j) Fencing the property;
(k) Raising of cattle and chickens;
(!) The construction and maintenance of barns and chicken coops, and the construction and operation of a sawmill;
(m) Construction and operation of a dairy barn by Claude Christian under an arrangement with Samuel H. Dun-ham;
(n) The construction and maintenance of water wells;

5.

Since the year 1922, Lloyd Nixon has been aware that Samuel H. Dunham and his family have possessed the property. During this period, Lloyd C. Nixon has paid no taxes on the property, nor has he received any remuneration from the property.

6.

Lloyd C. Nixon signed an Act of conveyance to the Section Eleven (11) property in 1948. In 1946, Lloyd Nixon, by his wife, signed a right-of-way referable to the Section One (1) property.’

Lloyd Nixon added to these facts in his testimony:

He is presently living on a piece of property which is part of the Section 11 property, once part of the Dunham estate. He has not lived on the Section 1 property since soon after the death of Samuel J. Dunham. There was a period in the Twenties when he and Samuel H. Dunham, Sr. went looking for work in Wink, Texas, that his children and wife stayed on Section 1 property.

When Nixon first lived on the property, at the time of the sale to him and Samuel H. Dunham, it was for a period of about a year. During that time, he helped care for the ‘old folks’ and paid toward the mortgage on the home place. This was pursuant to the agreement which formed the consideration for the sale of 1921.

In 1947, when he executed the deed of the Section 11 property to the Claypools, he received no money but was under the impression that the funds received from the Claypools was used to pay off the existing mortgage indebtedness on the property.

His wife, Stella Nixon, born Dunham, sister of Samuel H. Dunham, died on April 22, 1965. It was a request of hers that Samuel H. Dunham and his wife never be disturbed in the possession of the Section 1 property. (The stipulation shows that Samuel H. Dunham continued to live on the property until his death on May 25, 1972.) Some five days after the death of Samuel H. Dunham, a title opinion from Lemuel E. Hawsey, marked ‘D-5’, was dated and received by Nixon. He understood from the letter and from the consultation with the attorney that he did not need to be concerned about taking steps to protect his one-half interest.”

Samuel H. Dunham, Jr. also testified to pertinent facts. He testified as follows:

At the time that the Section 1 property was sold to him in 1945 by his father, a cash consideration of $600.00 was paid. Samuel H. Dunham, Jr. stated that the real reason for the sale, though, was an accommodation for his father in order for the father to avoid creditors which had claims arising out of some unfortunate business venture. In 1948 when the financial problems had worked themselves out, the property was re-conveyed to Mable Claire Dunham (Mrs. Samuel H. Dunham, Sr.).

The mortgage which was taken on the property in 1946 was for the financing of a logging operation to be conducted on the property.

Also testifying were Anna Stevens and Willie Mary De La Houssaye, daughters of Samuel H. Dunham. The testimony of these witnesses was an elaboration of the facts which had been established previously by the stipulations and earlier testimony. Mrs. De La Houssaye did explain the route which the title to this property made from 1945 to 1968. During that time it went from Samuel H. Dunham to Samuel H. Dunham, Sr. — from Samuel H. Dunham, Jr. to Mable Claire Dunham — from Mable Claire Dunham to Arthur J. De La Hous-saye and Willie Mary De La Houssaye — and from Arthur Joseph De La Houssaye and Willie Mary De La Houssaye back to Samuel H. Dunham and Mable Claire Dunham. She stated that all of this series of conveyances was to keep the property in the family. Mrs. De La Houssaye further testified that she did not know that Nixon still considered himself an owner of a one-half interest until a conversation in the summer of 1976, when Nixon told her that he would expect one-half of the purchase price if the property were ever sold.

These facts were essentially uncontro-verted. We now proceed with the application of the law to those circumstances in order to determine whether the plaintiffs became owners of the property by 30 years prescription.

The applicable law of this subject matter was set forth in the case of Givens v. Givens, 273 So.2d 863 (La.App. 2nd Cir. 1973), where the court stated as follows:

“The well-settled jurisprudential general rule is that an owner in indivisión cannot acquire by prescription the rights of his co-owners in the property held in common. Possession by one co-owner is generally considered as being exercised on behalf of all co-owners. Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1950); Hill v. Dees, 188 La. 708, 178 So. 250 (1937); Dew v. Hammett, 150 La. 1094, 91 So. 523 (1922); Simon v. Richard, 42 La.Ann. 842, 8 So. 629 (1890); Litton v. Litton, 36 La.Ann. 348 (1884); British American Oil Producing Company v. Grizzaffi, 135 So.2d 559 (La.App. 1st Cir. 1961); Atlantic Refining Company v. Golson, 127 So.2d 341 (La.App. 2nd Cir. 1961); Demarco v. Duplantis, 88 So.2d 735 (La.App. 1st Cir. 1956).
“It is equally well-settled that an exception to the foregoing general rule is recognized in those instances wherein the adversely possessing co-owner gives notice to the other co-owners that he intends to possess contrary to the common interest. Under such circumstances one owner in common may prescribe against a party owning in indivisión with him provided such possession be clearly hostile and notice be given thereof. Arnold v. Sun Oil Co., supra; Liles v. Pitts, 145 La. 650, 82 So. 735 (1919); Ethredge v. Watts, 137 La. 686, 69 So. 95 (1915); British American Oil Producing Company v. Grizzaffi, supra; Gill v. Robinson, 11 Orleans App. 226 (1914).
“In determining whether a particular case falls within the exception rather than the general rule it has been held that mere occupancy, use, payment of taxes and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common. Hodgeson v. McDaniel, 233 La. 180, 96 So.2d 481 (1957); Alba v. Smith, 228 La. 207, 81 So.2d 863 (1955); Lee v. Jones, 224 La. 231, 69 So.2d 26 (1953); British American Oil Producing Company v. Grizzaffi, supra; Banks v. Yarborough, 104 So.2d 283 (La.App. 2nd Cir. 1958).”

The acts of possession of the subject property by Samuel H. Dunham for more than 30 years is undisputed. Such possession alone, however, cannot be the basis for 30-year acquisitive prescription as between co-owners. Givens v. Givens, supra. Before such possession can be the basis for 30-year acquisitive prescription, the possessing co-owner’s (Dunham’s) possession must “be clearly hostile” and notice to the other co-owner (Nixon) must be given thereof. There was nothing in the actions of Samuel H. Dunham that could be considered as hostile possession with notice to Nixon of such.

The plaintiffs contend that the transfer of the property in 1945 from Samuel H. Dunham to his son, Samuel H. Dun-ham, Jr., would serve as notice of hostile possession by Dunham. This position is without merit. The transaction between the father, Samuel H. Dunham, and his son was for the specific purpose of placing the property beyond the reach of creditors. It is undisputed that this transaction had no other purpose. The registry of a new title does not, ipso facto, constitute notice of a co-owner that the possession of his owner in common has become adverse. Southeastern Public Service Company v. Barras, 246 So.2d 298 (La.App. 3rd Cir. 1971); John T. Moore Planting Co. v. Morgan's Louisiana & T. R. & S. S. Co., 126 La. 840, 53 So. 22 (1908). The trial court correctly made further observations in regard to the transactions affecting this property:

“Samuel H. Dunham continued to live on the property which he had sold to his son. In 1946, when a right-of-way was given to the Police Jury of Calcasieu Parish across the property, it was Samuel H. Dunham who signed the right-of-way agreement, and not Samuel H. Dunham, Jr. Also, a signatory on that grant was Lloyd C. Nixon, who signed through his wife.
Later, in 1948, the property was conveyed back to Samuel Dunham’s wife. As mentioned in the recitation of facts, it was later conveyed to the daughter and son-in-law, and then returned to Samuel H. Dunham and wife in 1963.
While the effectiveness of all the filings of Acts of Conveyance as a means to escape one’s creditors is of doubtful value, it is conceded by all that such was the purpose. And whether or not the purpose would be accomplished in the event that the creditors had descended upon Samuel Dunham, it is again presumed that all actions taken by Dunham to preserve the property were done for his benefit and the benefit of his co-owner.”

While we realize that this case presents a troublesome problem, we hold that Dunham never gave notice to Nixon of his adverse ownership so as to constitute an exception to the rule of non-prescriptibility among co-owners. We find that the trial court correctly denied the prescriptive title to the plaintiff.

For the above reasons, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

SWIFT, J., concurs.

      . Since judgment by the trial court, the original defendant sold his interest in the property to General Erbon W. Wise, who has been substituted in these proceedings on appeal.


text:
    Ernest MARQUIS, Plaintiff-Appellant, v. Dr. Francisco CANTU et al., Defendants-Appellees.
    No. 7013.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Bertand & Soileau, James E. Marchand and Charles E. Soileau, Rayne, for plaintiff-appellant.
    C. Brent Coreil, Ville Platte, for defendants-appellees.
    Before WATSON, STOKER and DOU-CET, JJ.
   STOKER, Judge.

This is a malpractice suit filed by the plaintiff, Ernest Marquis, against several defendants. The issue presented herein is:

Did the trial judge err in sustaining an exception of no right of action filed on behalf of one of the defendants, namely Dr. Henry Dupre?

The facts of this case as alleged in plaintiff’s petition are briefly stated as follows. The plaintiff was injured in a plane crash which occurred August 21, 1977. Plaintiff was admitted to the Ville Platte General Hospital for treatment of his injuries later that day. Plaintiff was complaining of pain in the cervical spine region of his body. Plaintiff avers that several doctors, including appellees and the hospital were negligent in failing to properly diagnose his particular injuries, causing him to suffer substantial pain.

Defendant-appellee, Dr. Henry Dupre, filed an exception. This exception was styled as an exception of no cause or right of action and reads as follows:

PEREMPTORY EXCEPTION OF NO CAUSE OR RIGHT OF ACTION

NOW INTO COURT, through undersigned counsel, comes the defendant, DR. HENRY DUPRE, M.D., when appearing solely for the purpose of this Exception, respectfully states that the allegations contained in Plaintiff’s petition are incorrect; that he has never treated Plaintiff; that he has never seen Plaintiff nor prescribed any medication in regards to his treatment; that he never discharged Plaintiff, nor had any contact whatsoever with Plaintiff, and therefore, Defendant request that this exception be maintained, and accordingly that there be Judgment of Dismissal, dismissing him from this law suit, and [sic] plaintiff’s costs.

EXCEPTION OF NO CAUSE OF ACTION

The exception of no cause of action has apparently never been heard by the trial court and is not involved in this appeal.

EXCEPTION OF NO RIGHT OF ACTION

Without, giving written reasons for judgment the trial court sustained Dr. Henry Dupre’s exception of no right of action. In this appeal plaintiff has appealed from that ruling.

The basis of Dr. Dupre’s exception of no right of action is his assertion that he has never treated the plaintiff nor ever had any contact with the plaintiff whatsoever. In support of this assertion, plaintiff introduced at the trial of the exception a deposition given by the plaintiff in a related case and adduced testimony of Dr. Dupre. In his deposition, plaintiff admitted that he had never seen Dr. Dupre and did not know who the doctor was. Dr. Dupre, who was the only witness at the trial of the exception, testified that he did not know the plaintiff, Ernest Marquis, and had never treated him.

It is clear that the trial court erred. What Dr. Dupre urges and the evidence tends to show is a defense to the merits of the suit. The issues thus raised must be either tried on the merits or on motion for summary judgment. The exception of no right of action is not applicable. Plaintiff has attempted to utilize the exception of no right of action provided for in LSA-C.C.P. art. 927 (see paragraph 5 of the Comment thereunder) in the manner of a motion for summary judgment as provided in LSA-C. C.P. art. 966.

The sole purpose of the peremptory exception of no right of action is to challenge the plaintiff’s interest in the subject matter of the suit or his legal capacity to proceed with the suit. Broday v. Broday, 360 So.2d 645 (La.App. 3rd Cir. 1978); Davis v. Southern Farm Bureau Casualty Ins. Co., 324 So.2d 468 (La.App. 3rd Cir. 1975); Guillory v. Nicklos Oil & Gas Co., 315 So.2d 878 (La.App. 3rd Cir. 1975). The asserted defense is one that goes to the merits of the case and it is improper to assert an affirmative defense through the means of peremptory exception. Alside Supply Co. v. Ramsey, 306 So.2d 762 (La.App. 4th Cir. 1975); Watkins v. Louisiana High School Athletic Association, 301 So.2d 695 (La.App. 3rd Cir. 1974).

In view of our decision to grant the plaintiff the relief which he seeks on appeal, it is unnecessary to consider the issue of the admissibility of the plaintiff’s deposition.

For the foregoing reasons, the judgment of the district court sustaining the exception of no right of action filed on behalf of defendant, Dr. Henry Dupre, is reversed and the above mentioned exception is overruled. The case is remanded for further proceedings not inconsistent with the views expressed herein. Costs of this appeal are assessed to defendant-appellee.

REVERSED AND REMANDED.

      . Although the exception is styled as both no cause or right of action, the minute entry covering the hearing on the exception (Tr. 1), the reporter’s styling of the note of evidence, (Tr. 54), and the judgment rendered and appealed from (Tr. 37) show that only the exception of no right of action was ruled on. Also, the exchange between counsel and the court as recorded in the transcript of the record (Tr. 60) show that the exception of no right of action only was taken up at the hearing.


author: SWIFT, Judge.

text:
    FIRST NATIONAL BANK OF CROWLEY, Plaintiff-Appellant, v. GREEN GARDEN PROCESSING COMPANY, INC., et al., Defendants-Appellees.
    No. 7014.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Writ Granted July 3, 1979.

      Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-appellant.
    Privat & Regan, Kenneth 0. Privat, Crowley, for defendants-appellees.
    Before FORET, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

The First National Bank of Crowley (the Bank) instituted this action to recover from Green Garden Processing Company, Inc. (Green Garden) and three individual guarantors an indebtedness due by the defendant corporation to the Bank and for recognition of a collateral mortgage executed by Green Garden.

On June 4, 1975, each of the three individual guarantors, Pierre Jules Maraist, James B. Blackburn and John R. Leeper, signed separate but identical documents labeled a “Continuing Guaranty” up to the amount of $86,350.00. After suit was filed Mr. Leeper received a discharge in bankruptcy and Mr. Blackburn settled with the Bank for $33,000.00. The plaintiff then proceeded to trial before a jury on its claim against Mr. Maraist only. A verdict was returned in favor of the Bank for $33,000.00 and the trial judge signed a judgment in such amount against Maraist on September 28,1978. The plaintiff appealed, seeking an increase in the award to the full amount of its guaranty. Maraist answered the appeal, asking that the judgment be reversed. He contends, among other things, that his contract of guaranty was invalid for lack of consideration.

The principal issues on this appeal are whether there was valid consideration to support Mr. Maraist’s contract of continuing guaranty and, if so, what amount is the Bank entitled to recover from that defendant?

In 1974 John R. Leeper, as president of Green Garden, began negotiations with the Bank and the Farmer’s Home Administration (FHA) to obtain an FHA guaranteed loan to finance the operation of the corporation. A conditional FHA commitment dated March 19, 1975, was obtained by the Bank setting forth certain conditions which had to be met before the FHA would guarantee the loan. One of the conditions was that the loan had to be guaranteed by all shareholders of the corporation who owned 20% of its stock.

Mr. Maraist was not a stockholder at that time, but contemplated owning a 20% interest in the corporation. He therefore sought to limit his guaranty to 20% of the loan. However, FHA declined to waive the requirement of a full guaranty by the stockholders.

On April 8, 1975, Green Garden through its president, Mr. Leeper, executed a collateral mortgage note for $86,350.00 payable to future holder or holders which was secured by a mortgage on four tracts of land and other property belonging to the corporation.

Thereafter Maraist, Leeper and Blackburn each executed continuing guaranty agreements in favor of the Bank for $86,-350.00 in which each bound himself in solido with the principal debtor, Green Garden.

The conditional FHA commitment expired in July of 1975 without all of its requirements being complied with. Negotiations were begun in January of 1976 to extend the commitment but they were never completed.

In the latter part of 1975 Mr. Leeper abandoned the business and Mr. Maraist assumed the position of president and attempted to salvage the corporation. In January of 1977 he contacted the FHA to discuss the loan application. It was agreed that a new application should be submitted but apparently nothing further was done in this regard.

On May 2, 1977, Maraist as president of Green Garden executed a promissory note in favor of the Bank for $116,724.00 payable on demand or if no demand in 60 monthly installments. The note contained the following notation:

“This note is secured byacont (sic) guar-from (sic) each in the amount$86,350.00 Jules Maraist,. James Blackburn and John Leeper and a S/M (sic) in the same amount.”

Mr. Maraist contends that he signed the continuing guaranty solely for the purpose of meeting the requirements for obtaining FHA guaranty of loans made to the principal debtor, Green Garden. Since the Bank failed to obtain the FHA guarantee after the conditions were met, the consideration for his signing the continuing guaranty failed.

Maraist testified that it was his understanding that if the FHA guaranty was obtained he would incur no personal liability in the event the corporation failed to repay the loans. He stated it was his belief that the FHA would absorb the loss in such a situation and would take no action against the individual guarantors.

Nimrod Andrews, the state director of FHA, outlined the process which occurs when a debtor defaults on an FHA guaranteed loan. He said that the FHA was at liberty to select its method of repayment. Normally, the lender would be instructed to liquidate all assets of the debtor corporation which had been pledged to secure the debt. If a balance remained the lender would be asked to execute on the personal guaranties. Once these were exhausted, if any portion of the debt remained, the FHA would reimburse the lender for the loss up to the amount of its guaranty.

Michael McBride, a vice-president and loan officer at the First National Bank of Crowley, testified that he was present when Mr. Maraist signed the continuing guaranty. He said he personally informed Mr. Maraist before he signed the instrument that he would be personally liable for $86,-350.00 if the corporation defaulted on the loan. The continuing guaranty expressly provides that it is given:

“In consideration of the First National Bank of Crowley . . giving or extending terms of credit to Green Garden Processing Company, Inc. . . . ”

Clearly, the true consideration for which Maraist signed the guaranty was to obtain a loan or loans from the Bank which Green Garden could use in its business. While it may be true that Maraist contemplated obtaining a FHA guaranty for a loan, the testimony shows that his personal liability would not be affected by such guaranty. There was no evidence that Maraist was in any way misled as to the liability he might incur by signing the continuing guaranty. In fact there was testimony to the effect that Mr. Maraist was cautioned by Mr. McBride just prior to signing that he was assuming personal liability for the full sum of continuing guaranty.

In addition, when Mr. Maraist, as president of Green Garden, executed the note dated May 2, 1977, for $116,724.00 and secured same by his continuing guaranty he had full knowledge that no FHA guaranty had been obtained. He also testified that at the time he signed this note he was aware the Bank would look to him for repayment of the loan if it was not paid by the corporation.

This defendant’s contention that he was not obligated for any funds owed the Bank by Green Garden prior to execution of the guaranty also lacks merit. The instrument expressly proves that it covers all of the latter’s indebtedness, “whether due, or to become due and whether now existing or hereafter arising.”

Having considered the evidence referred to above as well as testimony of Mr. Ma-raist’s considerable business experience, the jury obviously concluded that there was sufficient consideration for the continuing guaranty and that Mr. Maraist was aware of his obligations thereunder.

A jury’s verdict will not be disturbed unless the record reflects that its conclusions of fact are not supported by the evidence or that its application of law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Co., 340 So.2d 421 (La. App. 4 Cir. 1976). We find no manifest error in the jury’s factual findings in regard to the issue of consideration and its determination that Mr. Maraist was bound by his continuing guaranty.

On the second issue, however, we are convinced the jury’s award of $33,000.00 to the Bank is clearly wrong.

In Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274, (La.1975), a continuing guaranty agreement very similar to the instruments involved in the present case was signed by four guarantors. During the pendency of the suit the principal debtor and three of the guarantors were released by the plaintiff bank reserving its rights against the other. It was concluded that the principal debtor and guarantors were liable in solido, that the fourth guarantor was not released by the compromise settlement, but his liability was reduced to one-fifth of the total amount guaranteed. After reviewing codal articles on suretyship and solidary obligations the Supreme Court said:

“The effect of the applications of these articles is that, as between the creditor and the solidary surety, the obligations of the surety are governed by the rules of solidary obligors.”

The fact that the guarantors in the present case executed three separate documents which were identical, instead of one, does not in our opinion change the result. All of them were obliged to do the same thing, that is pay the whole indebtedness of Green Garden up to the limit of the guaranty. Under the express provisions of LSA-C.C. Art. 2091 such an obligation of the parties is in solido. Town of Winnsboro v. Barnard & Burk, Inc., 294 So.2d 867 (La. App. 2 Cir. 1974). This is true even if the instrument which each signed contained no such words as in solido. George Moroy Cigar & Tobacco Co. v. Henriques, 184 So. 403 (La.App.Orl.1938).

Thus, when the present suit was filed the three guarantors were solidarily liable with Green Garden to the Bank up to the sum of $86,350.00. Upon Mr. Leeper’s discharge in bankruptcy their virile shares of the obligation were increased from one-fourth to one-third each. Upon the release by the Bank of Mr. Blackburn, Green Garden and Mr. Maraist were deprived of their rights to legal subrogation against him and accordingly the Bank thereafter could claim only two-thirds of the debt from the two solidary obligors who had not been released. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964). At the time of the settlement with Blackburn, Green Garden’s indebtedness to the Bank exceeded the amount of the continuing guaranty. Therefore, the solidary liability of Maraist and Green Garden to the plaintiff in the present case is two-thirds of the principal amount of the continuing guaranty (% X $86,350.00) or $57,566.66, plus two-thirds of the sum awarded for attorney’s fees (% X $18,765.66) or $12,510.44. The judgment against Mr. Maraist will be amended in these respects.

For the reasons assigned, the judgment of the District Court is amended to increase the amount of the award to the plaintiff against Pierre Jules Maraist to the sum of $57,566.66, plus $12,510.44 as attorney’s fees, his liability for such sums being in solido with Green Garden Processing Company, Inc. As amended, it is affirmed. The costs of appeal are assessed to appellee, Pierre Jules Maraist.

AMENDED AND AFFIRMED.

      . A default judgment was rendered before the trial commenced against Green Garden Processing Company, Inc. in the amount of $75,-062.66, plus interest and an attorney’s fee of $18,765.66 and judicial recognition of the mortgage and continuing guaranties.


text:
    Cecil G. KNICKERBOCKER d/b/a Associated Court Reporters, Plaintiff-Appellant, v. VERMILION PARISH POLICE JURY, Defendant-Appellee.
    No. 7033.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Harold L. Savoie, Lafayette, for plaintiff-appellant.
    Broussard, Broussard & Moresi, Paul G. Moresi, Abbeville, for defendant-appellee.
    Before FORET, CUTRER and SWIFT, JJ.
   FORET, Judge.

This is a suit by Cecil G. Knickerbocker, Official Court Reporter for the Fifteenth Judicial District Court against the Vermilion Parish Police Jury for payment for work done in the course of his employment.

Mr. Knickerbocker alleges that he reported and transcribed various criminal indigent cases in the Fifteenth Judicial District Court and was not paid by the Vermilion Parish Indigent Defender Board for these services. As that Board is without funds, he brought this suit against the Vermilion Parish Police Jury on the grounds that it is liable for the debt. The trial court denied his claim and from such adverse judgment he brings this appeal. We affirm.

The fees due a court reporter are set out by LSA R.S. 13:968:

“. . .In all criminal cases, a fee of one dollar and fifty cents per page, thirty-five cents for the first copy and twenty-five cents for each copy thereafter reported and transcribed shall be paid to the court reporter who reports and transcribes the testimony and shall be retained by him as compensation in addition to the salary as provided herein. In all criminal and civil cases which are reported but not transcribed, one-half of the fees provided in this subsection for such cases respectively shall be charged by and paid to the reporter. Such fees shall be retained by the reporter as compensation in .
******
K. The court reporter shall make out an itemized statement of the fees charged for reporting and transcribing the notes of evidence. He shall deliver the original of the statement to the clerk of court of the parish where the suit is pending and retain a copy in his files. The party litigant, except one entitled to the benefits of Articles 5181 through 5188 of the Code of Civil Procedure or of R.S. 13:4529, shall pay to the court reporter immediately the fee charged. The fee shall be paid by a litigant entitled to the benefits of Articles 5181 through 5188 of the Code of Civil Procedure or R.S. 13:4529 when the litigant recovers judgment for costs and realizes a sufficient amount therefrom to pay his fee. No compromise shall be valid which does not provide for the payment of all reporting fees due and owing as provided herein for regular litigation.”

As the Police Jury notes in brief to this Court, the fees due under LSA R.S. 13:968 are owed by the “party litigant”. The criminal defendant who would ordinarily be liable for such costs is relieved of this burden when indigent, and same are borne by the parish indigent defender fund under LSA'R.S. 15:141(H) which, prior to amendment, in pertinent part, stated:

“. . Payment shall be made from the fund by the parish treasurer, upon order of the court, for necessary operating expenses of the board, for necessary expenses incurred in preparation and trial of cases, including cost of transcription, and for reasonable compensation to counsel for indigent defendants. The parish governing authority may, at the end of the fiscal year, transfer any surplus in the indigent defender fund unto the parish general fund, and may meet any deficit in the indigent defender fund by payment from the parish general fund.” [Emphasis added.]

By this statute the indigent defender board of Vermilion Parish became liable to Mr. Knickerbocker for such costs as he may have sustained in preparing indigent defendant criminal transcripts. However, in this case, plaintiff avers that the fund is without monies to pay him; he then argues that the wording of LSA R.S. 15:141 would require the Vermilion Parish Police Jury to make the payment.

In the case of State v. Campbell, 324 So.2d 395 (La.1975), the trial court granted judgment against the City of Baton Rouge and the Parish of East Baton Rouge for payment due an attorney for representing an indigent criminal defendant when it was anticipated that full payment would not be made by the indigent defender fund. The Louisiana Supreme Court reversed the trial court stating, at page 398:

“The ruling anticipates that the indigent defender fund will be insufficient to meet the fees to be fixed. The city-parish resists because of budgetary and fiscal reasons: it is required to budget and appropriate any funds to be expended.
“It is true that R.S. 15:141 does not by its specific terms require, but only permits the parish to “meet any deficit in the indigent defender fund” R.S. 15:141 H. This is the source of the strong contention that the legislature has not met its constitutionally required task of providing a ‘uniform system for securing and compensating qualified counsel for indigents.’
“[4, 5] We do not conclude that funding for indigent defenders is solely a State obligation. The State has full power, and more than one option, to provide for funding. Until this point, however, the statutes have placed the burden on the parish, but have refrained from making it mandatory, in order to give the parish governing authority as much latitude as possible in administering public funds in unforeseeable circumstances.
“The city-parish does not plead poverty, but only that fiscal legislation prohibits payment from current funds. Without deciding that proposition, we merely note that only time is involved, and a future budget and a future appropriation can adequately provide for claims against the indigent defender fund which mature during the current fiscal year.
“Nor do we decide that in an appropriate proceeding, under appropriate circumstances, the district court would lack the power to require a particular subdivision, or the State itself, to provide for payment of necessary expenses, including counsel fees, for the trial of indigent defendants. This case can be decided before that point is reached.” '

In the present case, plaintiff alleges that “that point” has been reached.

We note however, as does the Supreme Court in Campbell, that the language of the legislature in the statute in question is not mandatory (“shall”) but permissive (“may”) as to the duty of a parish to make good the debts of its indigent defender program.

As it is not in the record before us, it is impossible for this Court to determine whether the impecunious status of the Vermilion Parish Indigent Defender Fund is merely transitory or is a permanent condition. This Court follows the interpretation by the Supreme Court in Campbell and declines to give the plaintiff recovery from the parish police jury.

We note that the indigent defender statutes in question (R.S. 15:141, et seq.) have been revised since Campbell and that the new statutes do not obligate the parish police jury to make good the debts of a parish indigent defender board. On the contrary, the new statute sets out a method of funding for each indigent defender board . Therefore, this fund should be continuously infused with fresh monies and the plaintiff should refer his claim for compensation to the local Indigent Defender Board, which administers such fund.

In this appeal, for the first time, plaintiff seeks to raise a constitutional question in that he alleges that if we do not grant the relief prayed for against the Police Jury, he will be deprived of his property without adequate compensation. It is axiomatic that constitutional questions must be raised in the trial court by the party relying upon protection of rights guaranteed by the United States or Louisiana Constitution. Thus, we cannot consider whether the action of the Vermilion Parish Police Jury in refusing to pay plaintiff is a deprivation of his constitutional rights. Further, as we note in our opinion, we do not dispute the fact that while Mr. Knickerbocker may be owed the fees he has sued for, the Vermilion Parish Police Jury is not the proper party from which to seek such redress.

For the foregoing reasons, the judgment of the trial court is affirmed, at appellant’s costs.

AFFIRMED.

      . The Fifteenth Judicial District is composed of the parishes of Acadia, Lafayette & Vermilion.

        . By R.S. 15:146:
      § 146. Judicial district indigent defender fund
      A. There is hereby created within each judicial district an indigent defender fund which shall be administered by the district board and composed of funds provided for by this Section and such funds as may be appropriated or otherwise made available to it.
      B. There shall be remitted to the district indigent defender fund the following sums, which shall be taxed as special costs by every court of original jurisdiction in this state, in addition to all other fines, costs or forfeitures lawfully imposed:
      (1) The sum of four and one-half dollars for each misdemeanor violation of state law or parish or municipal ordinance, other than parking violations, in every court of original jurisdiction located within the judicial district where a defendant is convicted after a plea of guilty or a trial or forfeits bond. Upon the recommendation of the district board this sum may be increased to not more than sev-
      en and one-half dollars by a majority vote of the judges of courts of original criminal jurisdiction within the district.
      (2) The sum of ten dollars for each felony offense in every court of original jurisdiction in this state where the defendant is convicted after trial or after a plea of guilty or forfeits bond.
      Such amounts shall be remitted by the respective recipients thereof to the judicial district indigent defender fund monthly by the tenth day of the succeeding month.
      C. In addition to the funds provided for in Subsection B hereof the state shall pay to each district indigent defender board, on the warrant of its chairman, the sum of ten thousand dollars per annum.
      D. The funds provided for in this Section and all interest or other income earned from the investment of such funds shall be used and administered by the district board.
      Added by Acts 1976, No. 653, § 1. Amended by Acts 1977, No. 362, § 1.


text:
    A. J. GUIDRY, Plaintiff-Appellee, v. FORD, BACON & DAVIS CONSTRUCTION COMPANY, et al., Defendants-Appellants.
    No. 7136.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.

      Lewis & Lewis, John M. Shaw, Opelousas, for defendants-appellants.
    Felix A. DeJean III, Opelousas, for plaintiff-appellee.
    Before WATSON, GUIDRY and SWIFT, JJ.
   MOTION TO DISMISS

WATSON, Judge.

Plaintiff-appellee has filed a motion entitled “Motion to Strike Acceptance of Appellant’s Brief, To Suppress Appellant’s Right to Orally Argue, And To Dismiss Appeal”, the thrust of which is that appellants’ brief does not comply with Rule 9, Section 3 of the Uniform Rules-Courts of Appeal. (West’s Louisiana Rules of Court, 1979, p. 109 et seq.) Our examination of the brief in question indicates that while there is a failure to present a concise specification of errors and issues presented on appeal, the brief does identify in general argument the errors and the issues; and the brief otherwise complies with Rule 9, Section 3. Since we find a substantial compliance with the rule, we deny the motion filed by plaintiff, but counsel for appellants is instructed to adhere carefully to the provisions of the Uniform Rules in the future.

Likewise, we find no merit in the request for an extension of time in which to file appellee’s brief.

Motion Denied.


author: BOUTALL, Judge.

text:
    Etienne J. CAIRE, II v. John A. STASSI, d/b/a John A. Stassi Real Estate.
    No. 10405.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 1979.
    Writ Granted July 2, 1979.
    Robert G. Stassi, of Deutsch, Kerrigan & Stiles, New Orleans, for John A. Stassi d/b/a John A. Stassi Real Estate, appellee.

      Stephen J. Caire, Metairie, for Etienne J. Caire, II, appellant.
    Before SAMUEL, LEMMON and BOU-TALL, JJ.
   BOUTALL, Judge.

On our own motion we issued a rule to show cause why this appeal should not be dismissed for lack of jurisdiction.

This case is a claim for refund of deposit on a sale agreement on the amount of $600 by plaintiff-appellant, Etienne J. Caire, II against John A. Stassi. It was originally filed in the First City Court of the City of New Orleans. Judgment was rendered in favor of the defendant dismissing plaintiff’s suit at his costs. Plaintiff then applied for and was granted a devolutive appeal returnable to the Civil District Court for the Parish of Orleans. Defendant answered the appeal seeking attorney’s fees. At pretrial conference, the parties agreed that the matter would be submitted on the record from the first city court and on briefs of the applicable law. The judge of the Civil District Court then entered judgment affirming the judgment of the First City Court and awarded defendant attorney’s fees of $500, giving detailed written reasons for his judgment.

The plaintiff then applied for an appeal to this court, suspensively and devolutively, and posted the suspensive appeal bond in the amount of $750 as fixed by the Civil District Court. Upon the appeal being lodged in this court, on our own motion we issued a rule to show cause why the appeal should not be dismissed and referred the parties to a decision of the Court of Appeal, 1st Circuit, entitled Gregory Crain v. Dearmond’s et al., 369 So.2d 1171 (La.App. 1st Cir. 1979). It is this question of jurisdiction which we now consider.

We agree with our brethren of the First Circuit that we have no appellate jurisdiction in a case such as this, where the Civil District Court for the Parish of Orleans has already exercised its jurisdiction as appellate court. We quote from that case:

“We notice ex proprio motu lack of jurisdiction.
“Article 5, Section 10 of the Constitution of 1974, provides:
‘(A) Jurisdiction. Except in cases appealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. It has supervisory jurisdiction over cases in which an appeal would lie to it.’ ‘(Emphasis added.)’
‘(B) Scope of Review. * * *
“Section 16 of Article 5 of the constitution provides:
‘(A) Original Jurisdiction. * * *
‘(B) Appellate Jurisdiction. A district Court shall have appellate jurisdiction as provided by law.’ ”
“C.C.P. Article 4833, states:
"A* * *
‘B. The appeal from a city court when the amount is contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.
‘The appeal from a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located.” Amended by Acts of 1976, No. 84, § 1.’ ”

Traditionally, the City Courts of New Orleans have differed in a number of respects from the general procedures set out for City Courts elsewhere in the state. We note that in this case the amount in controversy is $600. Accordingly, C.C.P. Article 4835 grants jurisdiction to the New Orleans City Courts concurrent with the Civil District Court. In cases involving $300 or less, the appeal from the City Court of New Orleans is to the Civil District Court where the case is tried de novo. C.C.P. Article 4921. In cases involving more than $300, as here, the appeal is governed by C.C.P. Arti-ele 5002 providing for a devolutive or sus-pensive appeal to the proper appellate court. We have held in the case of Hibernia National Bank in New Orleans v. De-Graauw, 351 So.2d 1223 (La.App. 4th Cir. 1977), affirmed 350 So.2d 1219, that C.C.P. Article 4833(B) is applicable to the City Courts of New Orleans, and that subsection as quoted above provides that the appeal, when the amount in contest is $1,000 or less, is to the District Court. The appeal is to. the Court of Appeal where the amount exceeds $1,000.

As the amount here involved is $600, the constitutional and statutory provisions above referred to make it clear that this court has no jurisdiction. There is no sound reason advanced upon which one could conclude that the law intended that a litigant appealing a judgment involving less than $1,000 should be granted more appellate safeguards than a litigant appealing a case involving more than $1,000. It defies judicial economy to suppose that C.C.P. Article 4833(B) intended to grant such a litigant the extra step in appeal sought for in this case.

Accordingly, this appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: LEMMON, J.

text:
    Warren John MEYER, Jr. v. Sandra Mae Legendre MEYER.
    No. 10165.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Refused July 3, 1979.

      R. Lee Eddy, III, New Orleans, for plaintiff-appellee.
    Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-appellant.
    Before LEMMON, SCHOTT and GARRISON, JJ.
   LEMMON, J.

Mrs. Sandra Meyer has appealed from a judgment which, among other things, awarded her alimony pendente lite and child support totaling $747.36 per month. The principal issue on appeal is whether the award is so inadequate as to constitute an abuse of discretion.

The couple had two children, ages 4V2 and IV2 at the time of the July, 1978 trial. In 1977 Mr. Meyer, an engineer employed by J. Ray McDermott & Co., had earned $24,-668.00 in his regular employment and $7,816.00 in non-recurring income from the sale of real estate held for investment. In 1978 his only income was from his salaried employment, but those gross earnings had been increased to $2,260.00 per month. After deductions for state and federal taxes, hospitalization insurance (which covered his wife and children), pension and retirement, his net monthly salary at time of trial was approximately $1,450.00.

Mrs. Meyer was a registered nurse, but was not working at time of trial. She estimated the amount needed to maintain herself and the children at their pre-separation standard of living was $1,240.97. She had just bought a new car, washing machine and lawnmower with community savings.

On the other hand, the husband estimated his needs at $733.00, and on the basis of having handled all the finances prior to separation he estimated that $734.55 would maintain his wife and two young children according to their pre-separation standards.

On appeal Mrs. Meyer principally argues that the trial judge abused his discretion by basing alimony on the husband’s net income. Citing Penney v. Penney, 357 So.2d 53 (La.App. 4th Cir., 1978), she asserts that alimony should be based on the husband’s gross income, since such payments are deductible to the husband for income tax purposes.

This is not an accurate statement of the proper consideration to be given to the effect of tax laws. More accurately, the fact that alimony payments, for tax purposes, are deductible from income by the husband and are includible as income to the wife should be considered by the trial court as part of the totality of financial circumstances.

In this case the trial court permitted the introduction of evidence as to both the gross and the net salary earned by Mr. Meyer. There is no indication the court did not consider both figures and the tax consequences attributable to alimony in fixing the award.

Thus, the determinative issue is the adequacy of the award in the light of all circumstances established in the record, including the effect of an alimony award on the tax situation of both parties. The setting of alimony and child support obligations is an area in which the trial court is particularly vested with wide discretion. Even if the reviewing court considers the award to be low (as we do in this case), the award should not be disturbed unless it is so low as to constitute an abuse of discretion. We find no abuse and accordingly decline to disturb the award.

Finally, Mrs. Meyer seeks reversal of that portion of the judgment which held her to be in contempt of court for having violated the order that enjoined her from disposing of community property.

Violation of that order was never placed at issue either by pleadings or by court order, and Mrs. Meyer was never notified that she would be required to defend herself for such a violation. Furthermore, violation of the order was never mentioned until after the close of evidence, when the trial court commented on the conduct after a frustrating hearing punctuated with bickering among the lawyers and the parties. The comment about contempt was then included in the judgment prepared by Mrs. Meyer’s now-discharged counsel.

The portion of the judgment holding Mrs. Meyer in contempt of court must be set aside for lack of notice and opportunity to be heard, reserving to the opposing party and to the trial court the right to provoke a rule for contempt based on the violation of the injunction, with proper notice and an opportunity to be heard.

For these reasons that portion of the judgment of the trial court which held Mrs. Sandra Meyer in contempt of court is set aside. In all other respects the judgment is affirmed.

SET ASIDE IN PART, AFFIRMED IN PART.

      . The award was apportioned as follows: $147.36 to payment of the mortgage note on the community home, $200.00 to alimony, and $400.00 to child support.

      . $1,081 of this amount was for his share of the real estate commission on the sale. However, although licensed, he was not an active real estate agent, and he had no other income from commissions. Furthermore, he owned no other real estate except the family home.

      .The husband had withdrawn approximately $17,000.00 from community savings, but was holding this amount pursuant to an injunction.


author: SCHOTT, Judge.

text:
    Charles J. PINNER v. David CLARK and Bellefonte Insurance Company.
    No. 10174.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Writ Refused July 3, 1979.
    Edward K. Pinner, Sr., New Orleans, for plaintiff-appellant.
    Madison C. Moseley, Beard, Blue, Schmitt, Mathers, Koch & Williams, New Orleans, for defendants-appellees.
    Before LEMMON, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages against David Clark and his insurer.

On December 11, 1976, plaintiff and his friend, Mark Brink, went to the home of David Clark and his wife, Lori, who was Mark’s sister. Also present at the Clarks’ home was Gene Amersen. The group painted a room in the house, had dinner, and then proceeded to drink a bottle of tequila, which plaintiff and Mark had brought over, and then a second bottle which they went out and purchased.

As they were seated around the dining room table drinking the tequila, David Clark brought out a replica of an antique gun with balls for ammunition and a plastic container of gun powder. He intended to show the gun to the group and then shoot it outside the house. However, the powder exploded causing plaintiff to sustain injuries.

In his reasons for judgment the trial court observed that all parties involved in this incident were intoxicated at the time of the accident and for that reason he found that both plaintiff and defendant were con-tributorily negligent. The record amply supports the trial judge’s conclusion that all were intoxicated since they all admitted that they were although differing somewhat as to the degree of each one’s intoxication. However, we agree with plaintiff that the fact of his intoxication standing alone does not necessarily bar his recovery. For example, if the record revealed that Clark brought the gun powder to the table where his guests were smoking and there was an instantaneous explosion of the gun powder there would be no basis for a conclusion that plaintiff’s intoxication was a proximate cause of the accident. But this is not the case.

The evidence preponderates to the effect that when David brought the gun and powder to the table, plaintiff and Gene were seated side by side with one or both of them smoking. David was in the process of checking the gun over while plaintiff and Gene proceeded to play with the powder by dropping some on a lighted cigarette causing the powder to fizz. Thereafter, the powder developed a chain reaction with a subsequent explosion. This picture clearly emerges from the testimony of Mark and Lori Clark. She had left the room when David brought the gun out, but returned when she heard the explosion and was told what happened by all of the members of the group just a few moments after she returned.

Plaintiff attempted to make it appear that the testimony of the defendant’s witnesses was concocted on the day after the incident, but this argument is not persuasive. The principal witness against plaintiff was Mark Brink who, by the time of the trial, was rooming with plaintiff. Furthermore, the testimony that the explosion was caused by plaintiff and Gene when they were playing with the gun powder is the most plausible explanation as to how the accident happened. There is no evidence in the record to support the proposition that the gun powder simply exploded spontaneously upon being brought to the table.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    W. B. JAMES v. Woodrow W. JAMES et ux.
    No. 51266.
    Supreme Court of Mississippi.
    June 6, 1979.
    Gholson, Hicks & Nichols, Hunter M. Gholson, Dewitt T. Hicks, Jr., Lydia Quarles, Columbus, for appellant.
    Gary L. Geeslin, Robin Weaver, Columbus, for appellee.
    Before SUGG, BROOM and COFER, JJ.
   Appeal from Chancery Court, Lowndes County; James E. Bost, Chancellor.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER and LEE, JJ., concur.

BOWLING, J., took no part.