text:
    Percy J. FONTENOT, Plaintiff-Appellant, v. Roger Lee LAFLEUR, Defendant-Appellant.
    No. 5653.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearings Denied Jan. 26, 1977.
    Writ Refused March 25, 1977.

      Tate & Tate by Donald J. Tate, Mamou, for plaintiff-appellant.
    Daniel J. McGee, Mamou, for defendant-appellant.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

Percy J. Fontenot instituted this suit against Roger Lee Lafleur for an accounting of the assets of a partnership which formerly existed between the parties and for a money judgment. Defendant reconvened, seeking to recover amounts alleged to be due him by Fontenot arising out of the partnership agreement. Judgment was rendered by the trial court in favor of Fon-tenot and against Lafleur for the aggregate sum of $3,323.94, and in favor of Lafleur and against Fontenot for $5,217.54. Both parties have appealed.

A number of issues are presented, most of which relate to the terms of the agreement which was entered into between the parties and the debts which each party became obligated to pay upon the dissolution of the partnership.

On June 11,1968, plaintiff and defendant entered into a partnership agreement, or a joint venture, for the purpose of jointly purchasing a bulldozer and operating it for profit. They agreed to share equally in the expenses and in the profits or losses of the enterprise.

When the partnership was formed the parties borrowed $35,000.00 from Guaranty Bank of Mamou. Of that amount, $32,-000.00 was used to purchase a second-hand bulldozer, and the remaining $3,000.00 was used to pay operating expenses. A bulldozer operator was employed and the parties began operating the machine shortly after it was purchased.

On September 30, 1968, Fontenot and Lafleur borrowed the additional sum of $2,787.29 from the Guaranty Bank, and that amount was spent to purchase a pickup truck for the bulldozer operator to use. The pickup truck was wrecked shortly thereafter, and it was sold for salvage. The amounts received from that sale and from insurance benefits were applied toward the payment of the above indebtedness to the bank. After those payments were made there remained a balance of $712.50 due on the above note to the Guaranty Bank.

The parties experienced some mechanical problems with the bulldozer shortly after it was acquired and both agreed that the joint venture was not financially successful. About six or seven months after the partnership was formed, Fontenot and Lafleur engaged an attorney to institute suit against the seller, Boyce Machinery Corporation, seeking a return of the purchase price and a judgment for the losses and damages which had been sustained by them. A redhibitory action was instituted by plaintiffs against the seller in January, 1969.

On or about March 31, 1969, while the above suit was pending, Fontenot and Lafl-eur agreed to abandon the joint venture and to dissolve the partnership. Fontenot had paid most of the debts which were incurred, and the parties agreed that in order for the expenses to be equally divided Lafleur owed Fontenot $3,028.74. On that date, March 31, 1969, Lafleur executed a promissory note made payable to the order of Fontenot for the above amount. The note was made payable on demand, but both parties understood that it would be paid out of the sum which they hoped to recover as a result of the pending redhibito-ry action.

About three days later, April 3, 1969, Lafleur sold his one-half interest in the bulldozer to plaintiff’s son, Carl Fontenot. The bill of sale recites that the purchase price of the machine was $12,500.00, and that “Vendee agrees to liquidate the entire indebtedness due on the said to the Guaranty Bank of Mamou.” The parties also agreed at that time that if Fontenot and Lafleur were successful in their action to rescind the sale, Percy and Carl Fontenot were to surrender the bulldozer to the seller, and Lafleur was to receive one-half of the amount which was received from that litigation in excess of $25,000.00. Plaintiff and his son worked together on the various enterprises in which plaintiff was engaged, and Percy J. Fontenot was a party to the above agreement.

Plaintiff testified that he and Lafleur appraised the bulldozer at $25,000.00 at the time Lafleur sold his interest to Carl, and that it was for that reason that the price of his one-half interest was recited as being $12,500.00. Fontenot stated, however, that since they did not know how much would be recovered from the redhibitory suit, they agreed that if they were successful in that litigation Lafleur would be paid one-half of any sum which might be recovered in excess of $25,000.00.

The parties were successful in their suit to rescind the sale. Judgment was rendered by the trial court on December 7, 1972, in favor of Fontenot and Lafleur and against Boyce Machinery Corporation for the amount of the purchase price paid for the bulldozer and for additional sums paid by the parties for repairs. The judgment also ordered (1) that the machine be returned to Boyce, (2) that Boyce recover $790.15 from Lafleur on a separate account, and (3) that Boyce recover $1,130.00 from Fontenot also on a separate account. That judgment was upheld by the Supreme Court. See Lafleur v. Boyce Machinery Corporation, 294 So.2d 498 (La.1974). On or about June 27, 1974, the aggregate sum of $43,023.06 was paid by Boyce Machinery Corporation in settlement of that judgment, and that amount was distributed by counsel for plaintiffs in that litigation as follows:

Boyce Machinery (due by Fontenot) $ 1,361.00
Boyce Machinery (due by Lafleur) 951.19
Donald Soileau (Attorney’s fees)' 14,341.02
Fontenot and Lafleur 26,369.85
$43,023.06

Lafleur endorsed the $26,369.85 check which was made payable jointly to him and to Fontenot, and the latter received that entire amount. Fontenot paid the indebtedness which the partnership owed to the Guaranty Bank. A dispute then arose between Fontenot and Lafleur as to how much each owed as attorney’s fees, as court costs and as expenses incurred in connection with the above joint venture. Fontenot instituted this suit for an accounting and for judgment against Lafleur for $10,-115.18. Lafleur reconvened, demanding judgment against Fontenot for $21,266.77.

Plaintiff contends initially that the sale of a one-half interest in the bulldozer from Lafleur to Carl Fontenot was subject to a suspensive condition, that condition being that the bulldozer would not have to be returned to the seller. He takes the position that that condition did not take place, that the sale was never completed and that the purchaser thus is not obligated to pay Lafleur’s indebtedness to the Guaranty Bank.

We think the sale to Carl Fontenot was not made subject to a suspensive condition, but on the contrary that it was completed on April 3, 1969. The bulldozer was delivered to plaintiff and his son on that day, and it was operated by them for a period of about five years thereafter. Plaintiff and his son exercised complete control over the machine during that period, they contracted for the jobs which were performed by it, and they retained all of the amounts which were paid for the work done. Lafleur had nothing to do with the machine or with the profits derived from the use of it after the sale. The agreement of plaintiff and his son to return the bulldozer to the seller and to share in the total amount recovered from the redhibitory action in the event the parties were successful in that suit, did not constitute a suspensive condition of the sale, and plaintiff and his son thus , are not relieved of the obligation they assumed in connection with the April 3, 1969, transaction.

Prior to the settlement of the redhibitory action, the parties did not discuss the manner in which attorney’s fees or court costs were to be apportioned between them in the event they were successful in that litigation.

The trial judge held that out of the $43,-023.06 recovered from Boyce, plaintiff and his son were entitled to receive the first $25,000.00, and that the remaining $18,-023.06 was to be divided equally between Fontenot and Lafleur. He determined that Lafleur was entitled to receive $9,011.53 from that payment. The question then was presented as to the portion of the attorney’s fees which Lafleur should be required to pay.

The attorney’s fees for handling the re-dhibitory action amounted to $14,341.02. The trial judge decided that those fees should be apportioned among the parties according to the amount which each received out of the total amount recovered and he determined that the proportionate part of the fee owed by Lafleur amounted to $3,003.84. He deducted those attorney’s fees from the gross amount due Lafleur, and the additional sum of $790.15 which the latter owed personally to Boyce, and concluded that the net sum of $5,217.54 was owed to Lafleur. Judgment thus was rendered in favor of Lafleur and against Fon-tenot for that amount.

Plaintiff contends that the trial judge erred in apportioning the attorney’s fees. He takes the position that those fees and the individual debts owed to Boyce by both parties should be deducted from the total sum received as a result of the litigation, leaving $26,369.85 as the net amount recovered. He argues that he and his son are entitled to be paid $25,000.00 (actually he contends that he should be paid substantially more than that), by preference, out of the net amount received, which would leave little or nothing to be distributed to Lafl-eur.

We agree with the trial court that the attorney’s fees should be apportioned among the parties according to the sum each received out of the total amount recovered. We find no error in the holding of the trial court that $25,000.00 should be deducted from the gross amount received from the litigation, that the remaining balance should be divided equally between Fontenot and Lafleur, and that Lafleur is obligated to pay only $3,003.84 as his proportionate part of the attorney’s fees. No question is raised as to Lafleur’s obligation to pay Boyce the sum of $790.15.

Plaintiff points out that at the time the redhibitory action was settled, a principal balance of $28,000.00 was due on the original promissory note owed to Guaranty Bank, and that with the accumulated interest the total indebtedness on that note amounted to $37,920.17. He contends that the parties intended that Lafleur was to share in the proceeds of the suit only if the amount recovered exceeded the total amount of principal and interest due on the note. We do not agree. The parties appraised the bulldozer at $25,000.00 when defendant sold his interest in it, and they agreed that if they recovered more than that amount through the pending suit, Lafl-eur would receive one-half of the excess over $25,000.00. We find nothing in the record to support plaintiff’s contention that they intended for Lafleur to receive a part of the amount recovered only in the event that amount exceeded the balance due on the note. The trial judge correctly computed the amount due Lafleur.

Fontenot contends that he and his son did not assume and agree to pay the balance of $712.50 due the Guaranty Bank on the promissory note dated September 30, 1968, representing their indebtedness for funds borrowed to purchase a pickup truck. The trial judge found that the parties intended that Carl Fontenot was to assume and pay the balance of the indebtedness due on the above note. We agree with that finding. The truck was purchased for use in connection with the business of the partnership. The indebtedness was owed to the Guaranty Bank. The parties were aware of that indebtedness, and Carl Fontenot specifically agreed to liquidate the “entire indebtedness” owed to that bank.

Fontenot contends that he is entitled to recover $327.00 from Lafleur, that being the price of a dining room suite purchased from plaintiff by Lafleur in 1968. He also demands judgment against Lafleur for $100.00, that being the amount of a check given to him by defendant on January 10, 1969, and returned unpaid, marked “insufficient funds.” The trial judge sustained exceptions of prescription of three and five years to both of those claims. The instant suit was filed on October 4,1974,' more than five years after either of those debts were incurred. The evidence does not show that the running of prescription has ever been interrupted as to either claim. We thus find no error in the judgment of the trial court sustaining the exceptions of prescription.

As already noted, when the parties dissolved the partnership Lafleur executed a promissory note made payable to Fontenot for the sum of $3,028.74. In the instant suit Fontenot demands judgment against Lafleur for the amount due on that note. The trial judge rendered judgment in favor of Fontenot and against Lafleur for $3,028.74, plus interest at the rate of eight percent per annum from the date of the note, March 31,1969, until paid. Defendant contends that the trial court erred in failing to sustain the exception of prescription filed by him as to that claim, and in condemning him to pay interest at the rate of eight percent, instead of six percent, per annum.

The note, executed on March 31, 1969, recites that it is payable on demand. This suit was instituted on November 4, 1974, more than five years after it was executed. Defendant filed an exception alleging that the note has prescribed by the liberative prescription of five years. The trial court found that the parties had agreed that the note was to be “paid out of the settlement of the lawsuit,” that that settlement did not occur until June, 1972 (actually we think it was June, 1974), and that prescription did not begin to run until the suit was settled. The court thus overruled the exception of prescription as to that claim.

The evidence convinces us, as it did the trial judge, that the parties agreed that the note was to be paid when the redhibito-ry action was settled. Fontenot testified that he and Lafleur “discussed” the note on many occasions while the suit was pending, and Lafleur testified that he intended to pay it out of the proceeds he was due from the lawsuit. We think the trial judge was correct in overruling the exception of prescription, but we prefer to base our ruling on the fact that the running of prescription was interrupted by. the repeated discussions of the note by the parties while the redhibi-tory suit was pending. See LSA-C.C. art. 3520.

The note provides for interest at the rate of six percent per annum. The judgment rendered by the trial court condemned defendant to pay interest on the amount of the note at the rate of eight percent per annum. The court clearly erred in condemning Lafleur to pay the higher rate of interest, and the judgment must be amended to conform to the provisions of the note.

Defendant Lafleur in his reconven-tional demand seeks to recover from Fon-tenot the following amounts:

Moving plaintiff’s bulldozer to Alexandria and back in August, 1970. $250.00
Unbogging plaintiff’s tractor and heavy equipment, February, 1971. 150.00
Constructing a levee on plaintiff’s “duck lake” in August, 1971. 680.00
Reimbursement of amount paid by Lafleur in connection with purchase of a vehicle by an employee of the partnership. 765.12
$1845.12

The trial judge sustained exceptions of prescription of three years as to the first three items listed above. He rejected Lafl-eur’s demands for the last item on the ground that that indebtedness was “not a partnership debt.”

The evidence fails to show that the amount paid by Lafleur in connection with the purchase of a vehicle by an employee' of the partnership was a partnership debt. The court held, correctly, we think, that Lafleur is not entitled to recover any part of that expenditure from Fontenot.

With reference to the remaining claims made by Lafleur, Fontenot admitted at the trial and in this court that he was indebted to Lafleur for the following amounts:

Transporting bulldozer on August 1, 1970. $250.00
Unbogging tractor and heavy equipment in February, 1971. 150.00
Constructing a levee on “duck lake,” August 15,1971. 180.00
$580.00

In view of those admissions, we think the trial court erred in sustaining the exceptions of prescription as to those items and in failing to render judgment in favor of Lafleur and against Fontenot for them. The evidence fails to show that Lafleur is entitled to recover more than $180.00 for the last mentioned item, that is the construction of a levee for the lake. The judgment appealed from will be amended to permit Lafleur to recover the above amounts.

Finally, Lafleur contends that the trial court erred in apportioning the court costs incurred in connection with the redhi-bitory action. The court costs in that suit amounted to $1,640.65. Fontenot paid $670.65 of those costs, but the evidence indicates that Boyce Machinery Corporation reimbursed plaintiff for that amount, leaving only $970.00 still in dispute. The matter is now in litigation in another court as to who should be required to pay that remaining indebtedness for court costs. The trial court found that “defendant owes a pro-rata portion of these costs based on the percentage of the recovered amount that belonged to him,” and it awarded plaintiff $295.00 as defendant’s share of those court costs. We find no error in that decision of the trial court.

For the reasons herein assigned, the judgment appealed from is amended in the following respects: (a) That part of the judgment which condemns Lafleur to pay to Fontenot $3,028.74, with interest at the rate of eight percent per annum, is amended to reduce the rate of interest to six percent per annum from March 31, 1969, until paid; and (b) that part of the judgment which condemns Percy J. Fontenot to pay to defendant, Roger Lee Lafleur, the sum of $5,217.54 is amended to decree that Fonten-ot is condemned to pay Lafleur the sum of $5,797.54, with interest thereon at the rate of seven percent per annum from November 14, 1974 (the day the reconventional demand was filed), until paid. In all other respects the judgment appealed from is affirmed.

One-half the costs of this appeal are assessed to plaintiff-appellant, and the remaining costs are assessed to defendant-appellant.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: HOOD, Chief Judge.

license: Public Domain

text:
    Elwanda Marie DUBOIS, Plaintiff-Appellee, v. Joseph David BREAUX, Defendant-Appellant.
    No. 5668.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      Edwards, Stefanski & Barousse, by Larry C. Dupuis, Crowley, for defendant-appellant.
    Thompson & Sellers, by Charles M. Thompson, Jr., Abbeville, for plaintiff-ap-pellee.
    Before HOOD, C. J., and CULPEPPER and GUIDRY, JJ.
   HOOD, Chief Judge.

Defendant, Joseph David Breaux, appeals from a judgment rendered by the trial court condemning him to pay to plaintiff, Mrs. Elwanda Marie Dubois, the sum of $5,359.50, representing arrearages in alimony and child support payments.

The sole issue presented is whether the judgment of final divorce rendered in this case, which was silent as to alimony and child support, abated and rendered ineffective that part of an earlier separation decree which ordered the defendant husband to pay alimony and child support.

A judgment decreeing a separation from bed and board between Mrs. Dubois and defendant Breaux was rendered by the trial court on April 15, 1968. In that judgment, plaintiff was granted custody of the two minor children of the marriage, and she was awarded “permanent alimony and child support for herself individually and for the use and benefit of the minor children” in the amount of $175.00 per month, commencing April 15, 1968.

In July, 1969, Mr. Breaux filed a petition seeking a final divorce on the ground that the parties had lived separate and apart for one year and sixty days after the date of the judgment of separation. The issue was tried, and judgment was rendered by the trial court on October 3, 1969, decreeing a final divorce between the parties. The judgment granted to Mrs. Dubois the permanent care, custody and control of their two minor children, but it did not condemn defendant to pay any amounts as alimony or child support. The judgment, however, did contain the following statement relating to child support:

“It is further ordered, adjudged and decreed that the amount to be awarded as child support for the use of the minor children be relegated to a separate judgment.”

The minutes of the session of the district court held on October 3, 1969, show the following with reference to the case: “Rule for increase of alimony is made absolute and an increased to the amount of $185.00 per month.”

There is no formal or signed judgment in the record which conforms to the above minute entry. The record also shows that no judgment or decree was signed by the trial court on October 3,1969, or at anytime thereafter, condemning defendant to pay alimony or child support to plaintiff or to anyone else.

Plaintiff, Mrs. Dubois, remarried in November, 1971.

On October 1, 1974, plaintiff filed a petition alleging, among other things, that defendant had failed to pay the full amount due as alimony and child support for the month of December, 1969, that thereafter he had failed to make payments of $175.00 per month, as ordered by the separation decree rendered on April 15, 1968, and that the alimony and child support payments then due and unpaid amounted to the aggregate sum of $5,359.50. Pursuant to that pleading, a rule was issued directing defendant to show cause why he should not be adjudged in contempt of court, and why the amount of past due alimony under the above judgment should not be made execu-tory.

Before a hearing was held on the above rule, another petition was filed by Mrs. Dubois on February 4, 1975, seeking judgment condemning defendant to pay alimony and support at the rate of $175.00 per month, and praying that that judgment “be made retroactive to the date of the judgment of divorce, namely October 2, 1969.” Alternatively, she prays for judgment ordering defendant to pay $250.00 per month for the support of the minor children. A rule was issued by the trial court directing defendant to show cause why judgment should not be rendered as prayed for in that petition.

Both of the above rules, and another rule not pertinent here, were tried on March 17, 1975. The trial judge assigned reasons for judgment on August 1, 1975, concluding that defendant was in contempt for having failed to make the alimony and child support payments ordered in the separation decree dated April 15,1968, that plaintiff is not entitled to further alimony since she has remarried, and that the evidence was inadequate to enable the court to determine the amount of child support which defendant should pay hereafter.

Judgment was rendered by the trial court on May 17, 1976, decreeing defendant Breaux to be in contempt of court, and sentencing him to serve ten days in jail unless he brings up to date within 60 days all arrearages of alimony and child support which have accrued since the judgment of separation was rendered on April 15, 1968, amounting to the total sum of $5,359.50. The judgment also orders that “the record of this suit is to remain open” so that the needs of the children can be ascertained in a further hearing “in separate proceedings,” and a determination can be made of the amount which defendant hereafter should be condemned to pay as child support. Defendant Breaux has appealed from that judgment.

Our law is settled that a judgment of final divorce abates and renders ineffective a prior judgment of separation from bed and board and all incidents flowing therefrom, including the fixing of alimony and child support and the awarding of custody of the children, except that the wife retains the right to enforce payment of the amount of alimony or child support which accrued prior to the date of the final divorce decree. Thornton v. Floyd, 229 La. 237, 85 So.2d 499; Bozarth v. Bozarth, 199 So.2d 544 (La.App. 4 Cir. 1967); Broussard v. Menard, 316 So.2d 485 (La.App. 3 Cir. 1975); Manuel v. Broderson, 298 So.2d 333 (La.App. 3 Cir. 1974); Fellows v. Fellows, 267 So.2d 572 (La.App. 3 Cir. 1972).

In Thornton v. Floyd, supra, our Supreme Court said:

“It necessarily follows that a judgment decreeing a divorce between the spouses, with its attending finality and conclusiveness, generally abates all judgments of separation from bed and board, including all incidents flowing therefrom. . However, where a definitive decree of divorce is silent as to the custody of children and of an award of alimony necessary for their maintenance and support, we are convinced that such a judgment, being final and conclusive, abates and renders ineffective a judgment of separation with all of its incidents and cannot be altered or modified by a summary proceeding seeking thereby to revive the incidents of the separation suit which have not been presented for adjudication in the divorce suit.”

In the instant suit we regard the judgment of final divorce rendered by the trial court on October 3, 1969, as being silent as to alimony or child support. No judgment ordering defendant to pay alimony or child support was rendered on October 3, 1969, and no such judgment has been rendered in this ease since that time.

Applying the above rule to this case, we conclude that that part of the separation decree which was rendered by the trial court on April 15, 1969, and which ordered defendant Breaux to pay alimony and child support in the amount of $175.00 per month, abated and became ineffective on October 3,1969, when the judgment of final divorce was rendered. Plaintiff has not alleged, and the evidence does not show, that defendant failed to make any payments of alimony or child support which accrued prior to October 3, 1969. We think the trial judge erred, therefore, in holding defendant in contempt and, in effect, ordering him to pay a sum of money as arrearag-es of alimony and child support.

Plaintiff contends, however, that the judgment of final divorce rendered in this case was not silent as to child support, and that the rule applied in Thornton v. Floyd, supra, and its progeny, is not controlling here. She points out that the divorce decree orders that “the amount to be awarded as child support for the use of the minor children be relegated to a separate judgment.” She argues that in view of that order the divorce decree was not silent as to child support, and that “the prior award of alimony and child support should have remained in full effect until such time as the judgment envisioned by the divorce judgment was obtained and signed by the court.” We cannot agree with that argument. In our opinion, the divorce decree must be regarded as being silent as to alimony or child support, since it makes no awards as such. There is no basis for holding that the trial judge intended for the awards made in the separate decree to be continued in effect.

Plaintiff also refers us to Abreo v. Abreo, 281 So.2d 695 (La.1973), suggesting that that case casts “some doubt on the continuing validity of Thornton and its progeny.” We considered Abreo in Broussard v. Me-nard, supra, and concluded that the Supreme Court in rendering that decree did not intend to overrule the long established rule that a judgment of divorce terminates alimony and child support awarded penden-te lite in a judgment of separation.

Plaintiff contends, finally, that the minute entry made on October 3, 1969, constitutes a sufficient basis for awarding ar-rearages of alimony at the rate of $185.00 per month. She relies on Moreau v. Falgout, 304 So.2d 429 (La.App. 1 Cir. 1974), to support that argument.

In Moreau the judgment of final divorce awarded the wife $220.00 per month as permanent alimony and child support. A few months later the defendant husband had the payments reduced to $195.00 per month. The court minutes reflected the rendition of such a judgment, but a signed copy of the judgment was not in the record. The trial court, in computing the arrearag-es, based his computations on the lower figure which was shown in the minute entry. The Court of Appeal affirmed, holding that “it is not error on the part of a trial judge to take notice of the minutes of his own court in matters relating to alimony and/or child support when the judge is called upon to fix accumulated arrearages.”

We distinguish Moreau from the instant suit. In that case the judgment granting the final divorce specifically ordered the husband to pay alimony, and the minutes of the court show that another judgment was rendered later reducing the amount of the alimony payments. In the present suit, the judgment granting the final divorce did not condemn defendant to pay alimony or child support, and the court minutes do not show that a judgment has ever been rendered, on or after the date the final divorce was granted, ordering or purporting to modify the payment of alimony or child support. There is no judgment in the instant suit, therefore, which can serve as the basis for holding that defendant is in arrears in the payment of alimony or child support.

Even if a formal judgment had been signed on October 3, 1969, ordering that alimony payments be increased to $185.00 per month, that judgment would have become ineffective the same day, and it thus could not have served as the basis for awarding arrearages of alimony.

The trial court issued a rule on September 4, 1969, directing defendant to show cause why the “child support and alimony pendente lite payments,” which had been ordered in the separation judgment rendered on April 15, 1968, should not be increased. That rule was tried on October 3, 1969, and the court minutes indicate that at the conclusion of that trial, the district judge orally ordered that the rule be made absolute and that the alimony pendente lite payments, previously ordered in the 1968 separation decree, be increased to $185.00 per month. A judgment ordering such an increase was never signed. If such a judgment had been signed, however, it would have constituted merely a modification of the separation decree, increasing the amount of the alimony pendente lite payments which were specified in the earlier decree. Such a judgment could not have been construed as one awarding permanent alimony under LSA-C.C. art. 160. On the same day, October 3, 1969, the trial court rendered another judgment decreeing a final divorce between the parties, and we have held that that judgment had the effect of abating the separation decree and the award of alimony pendente lite made in that decree. We think the judgment granting a final divorce also would have abated and rendered ineffective a judgment, had there been one, purporting to increase the award of alimony pendente lite.

Our conclusion is that the trial judge erred in decreeing that defendant is in contempt and in sentencing him to confinement unless he brings up to date arrearages for alimony and child support.

For the reasons assigned, the judgment appealed from is reversed insofar as it decrees that defendant Breaux is in contempt of court, and insofar as it sentences him to serve ten days in jail unless he brings up to date arrearages for alimony and child support in the total sum of $5,359.50. Judgment is hereby rendered decreeing that defendant -Breaux is relieved of the payment of alimony and child support from October 3, 1969, until March 17, 1975, the latter being the date on which the rule to fix arrearages of alimony and child support was tried. In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

Reversed in part and affirmed in part.


author: GUIDRY, Judge.

text:
    Nelse B. ALLEN, Plaintiff-Appellant, v. LaSALLE PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 5702.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused March 25, 1977.
    George M. Strickler, Jr., New Orleans, Kidd & Katz by Paul Henry Kidd, Monroe, Smith, Taliaferro, Seibert & Boothe by Leo Boothe, Jonesville, for plaintiff-appellant.
    Long & Peters by Jimmie C. Peters, Jena, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Nelse Allen filed this suit against the LaSalle Parish School Board, hereinafter referred to as the “Board”, for judicial review of his discharge from employment as a school bus operator. Dr. Harold G. Denning, Superintendent of Schools, is also made a defendant. Defendant, “Board”, dismissed plaintiff pursuant to authority granted it under the school bus operators’ tenure law, LSA-R.S. 17:493. The trial court upheld the action of the “Board” and affirmed plaintiff’s dismissal. Plaintiff appeals.

A review of the record in this matter discloses that plaintiff, a school bus driver for the “Board” for 27 years, was on April 29, 1975 involved in an altercation with two students, Johnny and Tommy Wilkinson. Johnny Wilkinson was 12 years old at the time of the incident and a student at Jena Junior High School; his brother Tommy was 15 years of age and a student at Jena High School. The altercation occurred on plaintiff’s bus.

A day or so prior to the incident in question plaintiff had noticed spit on the back seats of his bus where young Johnny Wilkinson and a friend had been sitting. On the morning of April 29, 1975, suspecting that young Johnny Wilkinson and his friend were responsible for such misconduct, plaintiff directed them to sit on the front seat of the bus. The boys complied with the directive.

That afternoon plaintiff proceeded to Jena Junior High School to pick up his 7th and 8th grade students. Jena Junior High School was the first stop on his afternoon route. Plaintiff’s route next required him to proceed to Jena High School and then on to the Goodpine Middle School.

Johnny Wilkinson boarded the bus at the first stop. Plaintiff, at that time, again directed Johnny to sit in the front seat. When Johnny refused plaintiff told him that he should either sit on the front seat or leave the bus and go to the principal’s office. Johnny then complied with plaintiff’s demand, and was so positioned when plaintiff stopped at the next point, Jena High School. Tommy Wilkinson boarded the bus at this stop.

At the Goodpine Middle School plaintiff stopped his bus in the school parking lot to pick up more children. When Johnny’s friend, who has also been previously ordered by plaintiff to sit in the front seat, got on the bus, the two of them decided to move to the rear. Plaintiff then told Johnny to remain where he was, but Johnny moved from the front seat and as he did so plaintiff tried to grab the boy but missed. Plaintiff then started down the aisle to get Johnny. As plaintiff moved toward the rear of the bus, Tommy Wilkinson stood in the aisle in an attempt to prevent plaintiff from reaching his younger brother. There was an exchange of words between Tommy and plaintiff at which time Tommy in a threatening gesture clenched his fist. Plaintiff then slapped Tommy with his open hand. Tommy sat down and plaintiff continued down the aisle. When plaintiff reached the rear of the bus he found that Johnny had crawled beneath one of the rear seats. Before plaintiff could attempt to reach Johnny, Tommy came down the aisle and jumped on plaintiff’s back. There was a scuffle and plaintiff again slapped Tommy. At this point Tommy pulled away from plaintiff and ran from the bus. Johnny had, during the altercation between plaintiff and Tommy, made his way to the front of the bus. Plaintiff, standing in the rear of the bus, approached Johnny. Johnny cursed plaintiff. Plaintiff then struck the 12 year old in the face with his open hand. Johnny left the bus. Plaintiff then proceeded on to complete his route.

The jurisprudence of our state is abundantly clear that where an administrative agency or hearing body is the trier of fact the courts will not review the evidence before such body except for the following limited purposes: (1) to determine if the hearing was conducted in accordance with the authority and formalities of the statute; (2)to determine whether or not the fact findings of the body were supported by substantial evidence; and, (3) whether or not the hearing body’s conclusions from these factual findings were arbitrary or constituted an abuse of the hearing body’s discretion. Stewart v. East Baton Rouge Parish School Board, 251 So.2d 487 (La.App. 1st Cir. 1971); Moffett v. Calcasieu Parish School Board, 179 So.2d 537 (La.App. 3rd Cir. 1965); Barber v. Lake Charles Pipe and Supply Company, 148 So.2d 326 (La.App. 3rd Cir. 1962).

We consider the record before us in light of this well established rule.

Under the provisions of the school bus operators’ tenure law, a school board, complying with the requirements therein, has the discretionary authority to dismiss a school bus driver for conduct which amounts to incompetency or willful neglect of duty. LSA-R.S. 17:493 provides in pertinent part as follows:

“A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable and practical operating condition, or of being a member of or contributing to any group, organization, movement or corporation that is prohibited by law or injunction from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish in which the school bus operator is employed ... All hearings hereunder shall be private or public, at the option of the operator or operators to be affected thereby . . . The operator or operators affected shall have the right to appear in their own behalf and with counsel of their selection, and be heard by the board at the hearing. Nothing herein shall impair the right of the parties to appeal to a court of competent jurisdiction.”

It is obvious from the record that the “Board” complied with all of the procedural formalities required by the above quoted statute. Plaintiff, after due notice of the written charges against him, appeared at the hearing on May 22,1975 with an attorney of his choosing. At this hearing plaintiff was given the opportunity to present witnesses and to cross-examine the “Board’s” witnesses. Clearly plaintiff’s rights under the statute were protected.

We next determine if the “Board” in discharging plaintiff under the provisions of LSA-R.S. 17:493, for “willful neglect of duty or incompetence . . . ” did so upon fact findings supported by substantial evidence and whether its determination to discharge plaintiff was arbitrary or an abuse of discretion.

At the outset we observe that the record reflects no substantial dispute with regard to the facts as briefly hereinabove outlined.

Piled in the proceedings in the instant matter is a publication issued by the Louisiana State Department of Public Education. The publication is entitled “Pupil Transportation, Bulletin No. 1191,1971”. This handbook for Administrators, Teachers, and School Bus operators sets forth established rules and regulations for pupils riding school buses. We note that this bulletin gives no authority to the school bus driver to take disciplinary action against pupils who are in violation of the rules and regulations. Instead, the pamphlet indicates that it is the duty of the bus driver to notify the principal after due warning has been given to the undisciplined pupil. The bulletin also provides that any complaints of drivers, pupils, or parents shall be promptly reported to the principal or superintendent.

Plaintiff contends that he has an obligation to maintain discipline and good order on his bus, and therefore corporal punishment, reasonable in degree, may be administered by him for disciplinary reasons. In support of this contention plaintiff relies on Roy v. Continental Insurance Company, 313 So.2d 349 (La.App. 3rd Cir. 1975) writs refused, September 12, 1975. Recognizing that under the holding in the cited case a “teacher” may under certain circumstances have a discretionary right to use corporal punishment, we can find no basis to permit an extension of this ruling to include school bus drivers. A school bus driver is not a “teacher”, nor is it his function to be responsible for the progress, training, education or discipline of children. Certainly we recognize that in an emergency situation the school bus driver, as the custodian of transported students, may have the right to take some disciplinary action. However, considering the circumstances in the instant matter we cannot conclude that the “Board” was arbitrary or abused its great discretion in determining that the disciplinary measures taken by plaintiff on the occasion in question were excessive and amounted to willful neglect of duty or incompetence. The evidence indicates that the incident occurred while the bus was parked in a school yard. When the students, Johnny and Tommy Wilkinson, became unruly plaintiff had only to direct them off the bus and/or notify the principal. Although, plaintiff’s action in using some force to restrain the older Wilkinson child may have been justified, it is difficult to justify his actions in regard to Johnny. Johnny Wilkinson, who at the time of the incident was only 12 years old, admittedly did nothing more than verbally deride the plaintiff.

The above being considered we are of the opinion that the “Board” and the trial court had substantial evidence upon which to base their conclusions that plaintiff was willfully neglect in his duty or incompetent. We further hold that such conclusion was not arbitrary or an abuse of discretion. Although, under the particular facts of this case we may not have reached the same conclusion as that of the hearing body or trial court, since we do not find the conclusion of the “Board” arbitrary or an abuse of discretion we are not at liberty to substitute our judgment for that of the administrative body.

For the foregoing reasons the judgment appealed from is affirmed. All costs to be borne by the plaintiff-appellant.

AFFIRMED.

      . As will be set forth in the body of this opinion plaintiffs dismissal was as a direct consequence of an altercation he had with two students on April 29, 1975. As a result of this incident the “Board”, on May 22, 1975, held a hearing at which time testimony of witnesses was taken; both parties, the “Board” and Nelse Allen, were represented by counsel. Subsequent to this hearing, on June 9, 1975, Nelse Allen filed a petition praying that a temporary restraining order issue enjoining the “Board” from' terminating petitioner’s employment until the court could hear and determine the merits of petitioner’s claim. Petitioner further prayed that the “Board” be preliminarily enjoined from terminating petitioner’s employment without just cause. Plaintiff in this petition alleges that the “Board” as a result of the incident on April 29, 1975, and following the hearing on May 22, 1975, gave him an alternative to either retire or accept a mandatory (30) day suspension without pay and be placed on one year supervised probation. On June 23, 1975 the court rendered judgment rejecting plaintiff’s demand for a preliminary injunction and dissolved the temporary restraining order that had been previously issued. No appeal was taken from this judgment.
      Presumably Nelse Allen rejected the alternatives presented to him by the “Board” for he was discharged on June 23, 1975. On September 15, 1975 Nelse Allen filed this suit in the district court admitting that the “Board” discharged him on June 23, 1975. Plaintiff alleges that the slapping incident of April 29, 1975 did not constitute grounds for dismissal under LSA-R.S. 17:493.


author: CULPEPPER, Judge.

text:
    Dennis R. LAPRAIRIE, Plaintiff and Appellant, v. LIFE INSURANCE COMPANY OF GEORGIA, Defendant and Appellee.
    No. 5706.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      Riddle & Bennett by Darrel D. Ryland, Marksville, for plaintiff and appellant.
    Gravel, Roy & Burnes by Dan E. Melic-har, Alexandria, for defendant and appel-lee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

This is an action to recover benefits under an accident insurance policy covering, among other things, a “loss of hand”. The trial judge found there was no “loss of hand” within the meaning of the policy. Plaintiff appealed.

The policy defines “loss of hand” as follows:

“The loss of hand or foot means the complete and permanent loss of use of such member, either by paralysis or by severance at or above the wrist or ankle joint, respectively; provided however, that loss by severance of the four fingers entire shall likewise constitute loss of hand.” (emphasis supplied)

The facts are undisputed. Plaintiff, a right-handed 56 year old man, lost portions of the four fingers of his right hand on September 5,1975, while cutting wood with a power saw. He lost two-thirds of the distal phalanx of the index finger, the distal phalanx and one-half of the middle phalanx of the middle finger, the distal phalanx and two-thirds of the middle phalanx of the ring finger, and the distal phalanx and one-half of the middle phalanx of the little finger. In other words, plaintiff lost the tip of his index finger, about half of his middle finger, slightly more than half of the ring finger and about one-half of the little finger. His thumb was not injured.

Dr. Terry A. Cromwell, a specialist in plastic and reconstructive surgery, examined plaintiff’s hand four months after the accident. This physician reported:

“Physical examination at this time reveals a right hand which does have the stumps of the four fingers which were badly damaged. He has complete and full range of motion of the right thumb and good range of motion of the remaining joints of the stumps of the four fingers of the right hand. Because of the shortening of the right middle finger, right ring finger, and right little finger, they do not approach the distal palmar crease enough to be of any use whatsoever as far as grasping an object. Objects are grasped mainly by the pinch action between the thumb and index finger with some help from the stump of the middle finger. The stumps of the fingers are not hypersensitive and are well padded. On testing the grip strength, the patient’s left hand had 80 pounds of grasp strength while the right hand had 25 pounds of grasp strength. . . . ”

In another section of his report entitled “Recommendations”, Dr. Cromwell assessed the extent of the impairment of the right hand’s function:

“Mr. Laprairie has a very useful right hand in some respects. He has a 50% permanent impairment of the right hand as far as actual loss of digits is concerned. His hand is still very useful for tasks which do not demand heavy lifting or sustained grip. . . .”

The doctor then explained that there was a 100% impairment of the hand for tasks requiring heavy lifting or sustained grip, such as logging operations. Thus, plaintiff is disabled from pursuing his former occupations as a laborer, carpenter, logger, oil field worker, etc.

Dr. Cromwell did not recommend further surgery, because, as he stated in his report, plaintiff “does have very effective pinch between the stump of the right index finger and the right thumb, which is normal.”

The question is whether, under these facts, the plaintiff suffered a “loss of hand” within the meaning of the above quoted provision from the policy. An analysis of the provision shows that “loss of hand . means the complete and permanent loss of use of such member” in one of three ways: (1) by paralysis, (2) by severance of the hand at or above the wrist joint or (3) by severance of the four fingers entire.

There is no contention that plaintiff has lost the use of his hand by paralysis or by severance at the wrist. Hence, these two provisions are not at issue. The pertinent provision is that “loss by severance of the four fingers entire shall likewise constitute loss of hand.” It should be noted that the policy provides no benefits for loss of fingers':'' The only way in which the loss of fingers is relevant is insofar as such loss bears on the question of whether there has been a loss of the hand.

Plaintiff contends he should recover since the partial severance of the four fingers of his right hand has resulted in the substantial loss of use of his right hand based on his occupation, age and education. He cites no Louisiana case in point, but he quotes from Appleman’s On Insurance, Section 702, page 688 and from 45 C.J.S. Insurance § 900, p. 987, and he cites Richardson v. Liberty Mutual Insurance Company, 254 N.C. 711, 119 S.E.2d 871 (1961) and Travelers Protective Association v. Brazington, 71 Ind.App. 130, 123 N.E. 221. Plaintiff cites these authorities for the proposition that a provision for loss of a member of the body “by severance” applies both where the entire member is severed and where the entire member is rendered useless as a result of severance in whole or in part. These authorities are readily distinguished from the present case, since here the entire hand was not rendered useless by severance or otherwise. Plaintiff still has substantial use of the hand. He has not suffered a “complete and permanent” loss of use of the hand, as the policy requires.

The defendant cites Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72, 125 A.L.R. 1075 (1939). In that case the policy provided benefits for “Loss of one hand by severance at or above wrist-joint”. Our Supreme Court recognized that cases from other jurisdictions construe loss of use as loss of a member. However, the court held:

“But the overwhelming weight of authority is to the effect that, where an insurance policy provides indemnity for the ‘loss of a hand’, or the Toss of a foot’, or the Toss of an arm’, and provides in the policy a definition or a specific statement as to what shall constitute a loss of such member, effect must be given to this qualifying definition or explanation.”

In the present case, unlike Muse, the policy does provide for “loss of use”. However, this phrase is qualified by specific restrictive language as to what shall constitute loss of use. The policy states that the loss of use of the hand must be “complete and permanent”. Furthermore, it provides that the loss of use must result from (1) paralysis, (2) severance at the wrist joint, or (3) loss by severance of the four fingers entire. The facts in the present case show that the loss of use of the hand has not been complete. There is no contention that there has been loss of use of the hand by paralysis or severance at the wrist. The only contention is that there has been loss of use of the hand by severance of the four fingers. But the facts show that the four fingers were not severed “entire”, nor were they severed to the extent that the hand is completely useless.

It is true that plaintiff does not enjoy the same full use of his hand that he had prior to the accident. But the evidence is just as clear that plaintiff still has substantial use of the hand.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Terry MANUEL, Plaintiff and Appellant, v. Pamela M. MOUTON et al., Defendants and Appellees.
    No. 5710.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Knight E. Doggett, Alexandria, for plaintiff and appellant.
    Gold, Hall, Hammill & Little, by Edward E. Rundell, Alexandria, McHale & Bufkin, by Robert McHale, Lake Charles, John L. Pitts, Alexandria, for defendants and appel-lees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

Plaintiff appeals a judgment rejecting his demands for damages for personal injuries sustained in an automobile accident. The issues are factual and depend on whether we accept plaintiff’s version of the accident, or that related by the defendant.

The accident occurred at the intersection of Lee Street and Texas Avenue in the City of Alexandria. The plaintiff, a taxi driver, testified he deposited a passenger at a convenience store on the north side of Lee Street a short distance from the intersection. He then drove into Lee Street, crossed the west bound lanes, turned left into the east bound lane and stopped for a red traffic signal light at the intersection. He says that after two or three seconds the light turned to green and he had just started moving off slowly when his vehicle was struck from the rear by the automobile driven by the defendant, Ms. Mouton. Plaintiff’s testimony is corroborated by a witness, Herbert Simon, to the extent that he said plaintiff’s vehicle was stopped at the intersection for two or three seconds before the collision occurred.

The defendant, Ms. Mouton, testified she was driving in an easterly direction on Lee Street toward the intersection when she saw plaintiff drive out from the convenience store on the north side of Lee. She says she blew her horn but that plaintiff drove into her lane of traffic immediately in front of her. She applied her brakes and tried to swerve to the right but was unable to avoid striking the rear of plaintiffs automobile. Ms. Mouton testified positively that the traffic light was green for east bound traffic on Lee, both at the time she approached the intersection and when plaintiff pulled out in front of her and started slowly across the intersection. A passenger in defendant’s vehicle corroborated her testimony.

It is apparent that the trial judge accepted defendant’s version of the accident and not that of the plaintiff. Under defendant’s version, even if we assume she was negligent in some respect, it is clear that the plaintiff was guilty of contributory negligence in entering Lee Street from the convenience store at a time when it was unsafe because of the immediate proximity of defendant’s approaching vehicle. The record contains a reasonable evidentiary basis to support such a conclusion by the trial judge.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Loney P. FONTENOT, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL DIVISION, Defendant-Appellee.
    No. 5712.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      Logan & DeLaunay by Gerald C. DeLau-nay, Lafayette, for plaintiff-appellant.
    Foye L. Lowe, Jr., Assoc. Gen. Counsel, Baton Route, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Loney P. Fontenot, brought this action to enjoin the defendant-appellee, State of Louisiana, Department of Public Safety, License Control Division, from suspending his driving privileges pursuant to LSA-R.S. 32:414. Plaintiff also plead prescription and laches. From a judgment dissolving a temporary restraining order and denying preliminary and permanent injunctions plaintiff has appealed. We affirm.

By virtue of LSA-R.S. 32:414 the Louisiana Department of Public Safety is authorized and directed to:

“. . revoke the license of any person, for a period of twelve months, upon receiving satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with any of the following crimes:
(2) Conviction or the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail of any such person on the second subsequent offense for operating or being in actual physical control of a motor vehicle while under the influence of intoxicating beverages, where any or all of the offenses were the result of violations of a state law, a municipal ordinance or a federal law or any combination of them;”

LSA-R.S. 32:414(E) provides for a judicial review of the Department’s actions within thirty days thereof, in the judicial district of the licensed driver. Although the licensee must institute the judicial proceedings and technically assumes the position of plaintiff therein, the Department is confronted with the burden of proving, by legal, admissible evidence, that the plaintiff has been twice convicted or plead guilty to the offense of driving while intoxicated. See Watson v. State, Department of Public Safety, License Control and Driver Improvement Division, 324 So.2d 547 (La.App. 2nd Cir. 1975); State, Department of Public Safety, Drivers’ License Division v. Moore, 311 So.2d 20 (La.App. 2nd Cir. 1975); and Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir. 1971).

In the instant case the Department alleged that plaintiff had plead guilty to the offense of driving while intoxicated on two separate occasions and in two different states, to-wit: Municipal Court, Camden, Arkansas, on September 21, 1973; and City Court, Lafayette, Louisiana, on July 22, 1974. According to plaintiffs petition, he was not ordered to surrender his driver’s license until November 14, 1975. This action was instituted on December 4, 1975.

Plaintiff contends that the copy of the record of the proceedings of the Municipal Court of Camden, Arkansas, failed to comply with the provisions of LSA-C.C.P. Article 1395 and was thus inadmissible at trial in the instant case. He concedes the admissibility of the records of the City Court of Lafayette, Louisiana. Plaintiff further argues that at the trial on the former charge he plead guilty without the assistance of counsel and for that further reason maintains that said guilty plea is not valid in this proceeding. Finally, plaintiff contends that since an excess of one year has elapsed since the date of the second guilty plea (July 22, 1974) and the revocation action by the Department (November 14, 1975), the latter’s action should be barred by prescription or laches.

THE ARKANSAS GUILTY PLEA

Our Courts have held that driver’s license revocation proceedings pursuant to the statute at issue are civil matters and that uncounseled guilty pleas for prior driving violations are admissible and relevant. See Berger v. Department of Public Safety, 327 So.2d 705 (La.App. 1st Cir. 1976), writ refused La., 330 So.2d 310. See also State v. Page, 332 So.2d 427 (La.1976).

Concerning the record of the proceeding in the Municipal Court of the city of Camden, Arkansas, the authenticity and admissibility thereof is governed by the provisions of LSA-C.C.P. Article 1395, which provides as follows:

“Art. 1395. Same; out of state records
An official record, or an entry therein, of the United States, of any state other than Louisiana, of any territory of the United States, of any foreign country, or of any political subdivision, corporation or agency of any of the above, when admissible for any purpose, may be evidenced by a copy attested by the officer having legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office.”

The document in question is a copy of the proceedings in the abovementioned court on September 21, 1973, indicating that plaintiff herein was charged with the offense of “D.W.I.” and that he plead guilty to same on that date. At the bottom of that document is the following certificate:

Without engaging in a detailed analysis thereof, we note that, on its face, the above described document complies with the requirements of LSA-C.C.P. Article 1395 and was clearly admissible at the trial on the merits in this matter.

PRESCRIPTION OR LACHES

Plaintiff argues that the State’s action against him should be considered as either a criminal misdemeanor proceeding or a prosecution for an offense or quasi offense against the state, the applicable prescriptive periods thereto being six months and one year, respectively.

Concerning the prescription argument, our brothers of the Fourth Circuit have construed LSA-R.S. 32:414 in the case of State v. Cornelison, 304 So.2d 758 (La.App. 4th Cir. 1974):

“The ‘forthwith’ mandate of the statute is directed to the Department for the purpose of protecting the public at large from the habitually intoxicated motorist and not to create by implication a prescriptive period to relieve the convicted driver from the penalties of his own misconduct.”

The defense of laches has no statutory basis but rather is an equitable doctrine. While no rigid rule exists concerning application of the doctrine we feel that the case of Molero v. Bass, 322 So.2d 452 (La. App. 4th Cir. 1975), writ refused La., 325 So.2d 609, presents an adequate statement relative thereto:

“It is difficult to state the elements of laches or to state a ‘test’ for the application of laches. In general, since the applicability of laches is within the discretion of the court, each case rests upon its own particular set of circumstances. It is possible to say that laches has no application where there has been no delay in asserting the right. However, delay of time alone will not suffice, there must be other circumstances. Prime among the other circumstances most often mentioned in the jurisprudence are a prejudicial change of conditions occurring during the delay and reliance by the defendant upon the inaction of the plaintiff. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966); Labarre v. Rateau, [210 La. 34, 26 So.2d 279], supra; Shirey v. Campbell, [La.App., 151 So.2d 557] supra; 30A C.J.S. Equity §§ 115-119.”

Admittedly, there was a delay in the instant case of approximately one year from the date of plaintiff’s second conviction to the time the department instituted proceedings against him. However, as the above quoted language indicates, a delay of time alone will not suffice to invoke the doctrine of laches. Plaintiff has failed to demonstrate any prejudicial change of condition during the delay or any reliance on his part upon the state’s inaction. Por these reasons we find laches inapplicable to the situation presented herein and rule that the state’s actions are not barred thereby.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: HOOD, Judge.

text:
    Robert E. OTIS, Plaintiff-Appellant, v. Eloise F. Richardson OTIS, Defendant-Appellee.
    No. 5711.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 1976.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Monroe, for plaintiff-appellant.
    Joseph D. Guerriero, Monroe, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

Robert E. Otis instituted this suit for divorce against defendant Eloise F. Otis. The trial judge rendered judgment granting the divorce and awarding defendant alimony in the amount of $400.00 per month, subject to credit for any Veterans Administration benefits defendant may receive. Plaintiff appealed. We affirm.

The only issue presented is whether the award of alimony is excessive.

The minutes of the court show that Mr. Otis and four other witnesses testified in behalf of plaintiff at the trial, and that defendant, Mrs. Otis, testified in her own behalf. One document was introduced into evidence by defendant. No record of the testimony was made at the trial, and there thus is no transcript of the evidence in the record. The record also does not contain the document, a W-2 Form, which the minutes show was introduced in evidence.

LSA-C.C.P. art. 2130 provides that a party may require the clerk to cause the testimony to be taken down in writing at the trial, and that that transcript shall serve as the statement of facts of the case.

The law also provides that if the testimony has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts. If such a request is made and the parties then disagree as to the signed statement, or if one of them refuses to join in it, then at any time prior to the lodging of the record in the appellate court the judge shall make a written narrative of the facts which shall be conclusive. LSA-C.C.P. art. 2131.

In the instant suit, plaintiff-appellant apparently did not require the clerk to cause the testimony to be taken down, and the record contains neither the transcript of the testimony, nor an agreed narrative statement of the facts or a written narrative of the facts made by the trial judge. The issue presented on this appeal is purely factual.

Where factual issues are presented and the appellate record does not contain a transcript of testimony, a statement of facts entered into by the parties, or a written narrative of the facts made by the trial judge, there is nothing for the appellate court to review. Traylor v. Traylor, 337 So.2d 922 (La.App. 3 Cir. 1976); Succession of Walker, 288 So.2d 328 (La.1974).

In Succession of Walker, supra, our Supreme Court stated:

“The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript of the testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review. Williamson v. Enterprise Brick Co., 190 La. 415,182 So. 556 (1938); Aube v. American Insurance Co., 254 So.2d 654 (La.App.1971); Edisen v. Edisen, 236 So.2d 528 (La.App.1970); Omaha Steaks International v. Progressive Motor Hotel, 212 So.2d 558 (La.App.1968); So-Cam, Inc. v. Atkins, 189 So.2d 742 (La.App.1966).”

The judgment appealed from is affirmed. The costs of the appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    George A. FOSTER, Jr., Plaintiff-Appellant, v. Elmo TULLOS, Defendant-Appellee.
    No. 5740.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 1976.

      Wm. Henry Sanders, Jena, for plaintiff - appellant.
    Gaharan & Wilson, by Thomas E. Richard and Joseph Wilson, Jena, for defendant-ap-pellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

George A. Foster, Jr., instituted this suit against Elmo Tullos, d/b/a Tullos Lumber Company, to recover amounts alleged to be due on a contract for the sale of standing timber. The trial judge held that the parties never reached an agreement for the sale of the timber, and he accordingly rendered judgment in favor of defendant, dismissing plaintiff’s suit. Plaintiff appealed. We affirm.

The sole issue presented is whether the parties entered into a contract for the sale of the timber.

On July 3, 1974, Merlin B. Smith, a consulting forester, mailed a “Timber Sale Prospectus” to defendant Tullos, informing Tullos that Smith, in his capacity as the representative of plaintiff Foster, was offering for sale the marked pine and hardwood standing timber on a described tract of land in Grant Parish. The prospectus contained a description of the manner in which the trees had been marked and an estimate as to the amount of timber which was being offered for sale. It also contained the following invitation to submit bids for all or any part of the timber:

“You are invited to inspect this timber and offer a lump-sum bid on any part or all. Please mail bids so they will be received by Friday, July 19, 1974. Bids will be opened at our office promptly at 4:00 PM. Anyone wishing to attend is cordially invited.”

The prospectus concluded with the statement, “We reserve the right to refuse any and all bids.”

In response to the invitation contained in the prospectus, defendant Tullos wrote a letter to Smith on July 17, 1974, which reads:

“Following is bid on timber as advertised in prospectus sent out July 3, 1974, situated in NE1/4 of SE1/4 and the SE1/4 of NE1/4, all south of Big Creek, of Section 20, T 7 N, R 1 W, Grant Parish, Louisiana. Bid Amount — $17,685.50.”

On July 29,1974, Smith wrote the following letter to Tullos:

“Enclosed please find timber deed for George A. Foster Sale in Grant Parish. Please look over the contract form and if it meets with your approval, please sign with two witnesses, and return it to me. I will then forward on to Mr. Foster for signature. When the executed instrument gets back to me I’ll give you a call and set an appointment for delivering your contract and picking up Mr. Foster’s check.”

Enclosed with the above letter was a form of a written contract which, if executed by the parties, would unquestionably have constituted a valid sale of the timber from Foster to Tullos. That form of contract, however, contained several stipulations which were not included in the Timber Sale Prospectus mailed to Tullos on July 3, 1974, or in the bid which was submitted by defendant. The form of contract provided, for instance, that:

(1) The vendee would have until August 31, 1975, to cut and remove the timber.
(2) The vendee must pay the severance taxes due on the timber cut pursuant to the contract.
(3) The vendee must pay to the vendor liquidated damages for all other timber which might be damaged, destroyed or removed by the vendee, which damages were to be computed at specified prices per board foot or per cord, all as set out in the contract.
(4) The vendee could not sell or assign any part of the timber conveyed without the written consent of the vendor.
(5) The vendee must hold the vendor harmless from accidents, injuries or damages to any person, or property, resulting from the vendee’s operations on lands of the vendor or upon adjacent lands not mentioned in the agreement.

None of the above conditions were set out in the Timber Sales Prospectus or in the bid which was submitted by Tullos. Neither of those documents suggested a date within which timber could be cut and removed. Neither made reference to the payment of severance taxes or liquidated damages. Neither of them purported to restrict the right of the vendee to sell or assign the timber rights, and there were no provisions in the documents requiring the vendee to hold the vendor harmless from damage claims. The evidence does not show that it was a standard practice of the industry to include the above provisions in contracts for the sale of standing timber.

Defendant Tullos did not reply to the letter written by Smith on July 29, and neither Tullos nor Foster have ever signed the form of contract which was enclosed with that letter.

On August 22,1974, Smith wrote to Hunt Lumber Company, enclosing a form of contract providing for the sale by Foster to Hunt of the same timber which was described in the above Timber Sale Prospectus for a price of $16,015.00. In that letter, Smith requested that an officer of Hunt Lumber Company sign the contract and return it to him so that he could obtain Foster’s signature.

On the next day, August 23, Smith wrote to Tullos, advising that he had not received from Tullos “signed contracts or any reply from you as of this date,” and stating that “If we do not hear from you within the next 10 days regarding this matter, my client will proceed with legal action against you for the damages he has suffered.”

On August 30, 1974, or seven days after Smith wrote to Tullos, a contract was entered into between Foster and Hunt Lumber Company, under the terms of which the above timber was conveyed to Hunt Lumber Company for a total consideration of $16,015.00.

This suit was instituted on December 19, 1975. Plaintiff alleges that defendant agreed to pay $17,685.50 for the timber, that he “agreed to cut and remove the timber by August 31, 1975,” that the last mentioned date “has passed,” and that he is entitled to recover the above amount from defendant. He demands judgment against Tullos for $17,685.50, that being the full amount which Tullos offered to pay for the timber. Foster, of course, had sold the timber to Hunt, a third person, a year prior to August 31, 1975, and he clearly would not have been entitled to recover the full amount of the bid submitted by Tullos, in addition to the amount he had received from Hunt, even if a binding contract had been entered into for the sale of the timber to defendant in 1974. At the trial, Foster stipulated that he now seeks to recover only the sum of $1,670.50 as damages for defendant’s alleged breach of contract, that being the difference between the amount of the bid submitted by Tullos and the amount for which the timber was later sold to Hunt Lumber Company.

Plaintiff contends that the Timber Sale Prospectus which Foster mailed to Tullos constituted an offer for the sale of the standing timber described therein, and that the bid submitted by Tullos on July 17 constituted an acceptance of that offer. He takes the position that a valid contract was entered into between'the parties when Tul-los accepted plaintiff’s offer for the sale of the timber.

The trial judge, accepting defendant’s arguments instead of those made by plaintiff, held that the Timber Sale Prospectus which Smith mailed to Tullos on July 3, 1974, did not constitute an offer to sell the timber, that it merely constituted an invitation to make an offer for the purchase of that timber, and that the bid submitted by Tul-los must be construed to be an offer to purchase the timber under the terms set out in the prospectus. He concluded that Foster rejected defendant’s offer, that he then submitted a counter-offer to sell the timber to Tullos under different terms and conditions which were set out in the form of the written contract sent to defendant on July 29,1974, and that Tullos never accepted the counter-offer made by plaintiff. In view of his finding that no contract was ever entered into between the parties for the sale of the timber, he rendered judgment dismissing plaintiff’s suit.

We conclude, as did the trial court, that the Timber Sale Prospectus was not an offer to sell, but that it constituted merely an invitation to submit a bid for the purchase of the timber described in that document. That conclusion is compelled, we think, by the language used in the prospectus which invited the addressee to make an “offer” or to submit a “bid,” stated that bids would be opened at a specified time, and reserved to Foster the “right to refuse any and all bids.”

The letter written by Tullos on July 17, 1974, constituted an offer to purchase the timber. That offer has never been accepted by Foster. The letter written by Foster’s agent, Smith, on July 29, 1974, enclosing a formal contract to be signed by Tullos, constituted a rejection of the offer made by Tullos and the submission of a counter-offer. Tullos has never accepted the counter-offer, and thus there has never been a meeting of the minds between the parties.

Article 1805 of the Louisiana Civil Code provides:

“The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him, who makes the offer, the right to withdraw it.”

Since Foster imposed conditions or limitations on his alleged acceptance of defendant’s offer, Tullos had the right to withdraw his offer. It is apparent from this suit that the offer has been withdrawn.

We find no error in the judgment rendered by the trial court which rejects plaintiff’s demands.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: HALL, Judge.

text:
    The TRAVELERS INSURANCE COMPANY and Charles Scott Collins, Plaintiff-Appellant and Third-Party Defendant-Appellant, v. R. D. ZANG et al., Defendants-Appellees.
    No. 13097.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Rehearing Denied Jan. 21, 1977.

      Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for The Travelers Ins. Co., and Charles Scott Collins.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

In this case the owner-lessor and the lessee of a residence, and their respective insurers, seek to recover from each other property damages sustained as a result of a fire at the residence. Prom a judgment in favor of the lessee and his insurer, the owner and his insurer appeal.

The amount of damage, insurance coverage, and the cause of thé fire were stipulated. The fire was caused by the igniting of grease on a stove located in the kitchen of the residence.

The only evidence in addition to the stipulation is the testimony of Mr. and Mrs. Zang, the lessee and his wife, taken by deposition. They had lived in the residence about four years, during which time they experienced considerable difficulty with the electric range. One of the difficulties was the burners heating when in the “off” position. On several occasions Mrs. Zang called the owner, who was a builder, and he sent one of his men to work on the stove. About three weeks prior to the fire, Mrs. Zang received a shock from the left rear burner. She complained to the owner and he sent a man who worked on the burner.

On the day of the fire, Mrs. Zang put a pan filled with cooking oil on the left rear burner, preparatory to cooking supper. She checked and was satisfied the burner was not on. She left the house to pick her husband up at work and when they returned about 30 to 45 minutes later, the kitchen was on fire.

The trial judge found Mrs. Zang left the grease on a burner which had not been turned on, that the grease probably ignited because of the faulty condition of the stove which was the responsibility of the owner, and that Mrs. Zang was free of negligence. The evidence supports these findings.

Appellants contend the doctrine of res ipsa loquitur is applicable, citing Gregory v. Guarisco, 320 So.2d 354 (La.App. 2d Cir. 1975). In Gregory, the lessee of a building used as a restaurant was held liable to the owner for property damage caused by a fire originating in a deep fat fryer owned by the lessee. Applying res ipsa loquitur and shifting the burden to the defendant to prove his freedom from negligence, this Court found the most plausible explanation of the fire was the negligence of the lessee, the fire could not reasonably be attributed to any other cause, and there was no evidence that the appliance malfunctioned.

The instant case differs in several respects. The appliance here was owned by the landlord, not the tenant, and its condition was the owner’s responsibility. Mrs. Zang’s testimony that the burner was not turned on and that she checked and was satisfied it was off when she left the house negates negligence on her part. The evidence of prior malfunctions supports the probability of malfunction of the burner as the cause of the fire.

Appellants also argue that leaving the pan of grease on the burner knowing of the previous malfunction amounted to negligence on the part of Mrs. Zang. In view of the fact that the burner had recently been worked on and apparently repaired, and in view of the fact that Mrs. Zang checked and was satisfied the burner was off when she left the house, there was no negligence on her part.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


text:
    Tommy WILSON v. STATE of Mississippi.
    No. 49414.
    Supreme Court of Mississippi.
    Jan. 5, 1977.
    John L. Walker, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SMITH and LEE, JJ.
   Appeal from Circuit Court, Hinds County; Leon F. Hendrick, Judge.

REVERSED AND APPELLANT DISCHARGED.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.