text:
    Robert L. KENNEDY, Jr., as Director of the Division of Retirement, Appellant, v. Ruby N. WIGGINS and the Retirement Commission of the State of Florida, Appellees.
    No. KK-347.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Stephen S. Mathues, Asst. Division Atty., Tallahassee, for appellant.
    Frank Henry Molica, P. A., Merritt Island, for appellee Ruby N. Wiggins.
    Arthur R. Shell, Jr., Tallahassee, for ap-pellee Retirement Commission.
   PER CURIAM.

The Director of the Division of Retirement appeals the State Retirement Commission’s award of regular disability retirement benefits to Wiggins; Wiggins cross-appeals the order denying her “in-line-of-duty” disability retirement benefits as defined in Section 121.021(13), Florida Statutes (1977). We affirm on both points.

The record reveals that Wiggins, a cafeteria worker in the Brevard County School System, sustained an injury to her back at work in May, 1974. After several hospitalizations, she attempted to return to work in 1975 but, unable to continue, quit within months. She subsequently applied for inline-of duty disability retirement benefits under Section 121.091(4).

The Director denied her claim, finding her ineligible for any disability retirement benefits because she had not provided certification of total and permanent disability from two licensed state physicians as required in Section 121.091(4)(c).

Wiggins appealed to the Florida Retirement Commission and presented testimony and medical evidence that she was no longer able to engage in any activity involving her back. It was also established that she suffered from a vascular/arterial disorder, not related to the back injury, which had afflicted her after the cafeteria accident. Finally there was deposition testimony by an expert vocational witness, who concluded that based upon Wiggins’ lack of education, previous menial work experience, and physical limitations, she was not employable in the Brevard County area.

On this record, the commission found that Wiggins was not qualified for in-line-of duty disability retirement but had sufficiently proven total and permanent disability so as to entitle her to benefits under Section 121.091(4)(b). The Director appealed, again citing Section 121.091(4)(c) and claiming that the commission had no authority to award disability retirement benefits in the absence of disability certification by two licensed state physicians.

Wiggins and the commission concede here that under the terms of the statute, the administrator cannot approve disability retirement benefits without certification. They argue, however, that the commission is not so precluded. After studying the apparent statutory scheme, we concur with appellees’ position.

The legislature in Chapter 75-248, Laws of Florida (1975) created the Florida Retirement Commission as the agency head to hear appeals from decisions of the administrator in matters relating to disability retirement. In Section 121.23(2)(a), the commission was given broad authority in its delegated area, including the power to “order any action that it deems appropriate.” Section 121.23(2)(a) was enacted after Section 121.091(4)(b), which had made the decisions of the administrator on these questions “final and binding.”

The commission argues persuasively that its statutory authority would be meaningless if it were limited to simply rubber-stamping the administrator’s ministerial act of disapproving benefits to claimants incapable of submitting the necessary certification forms. In addition the commission asserts that in the exercise of its discretion, it has held consistently that certain claimants, because of limited intellectual ability and learning skills coupled with functional disability, are in fact “totally and permanently disabled” within the meaning of the statute.

Our role as an appellate court is to determine whether the commission has failed to provide a fair hearing, has not ruled in accordance with existing statutes or rules, or has not based its decision on substantial evidence. We are specifically prohibited from substituting our judgment for that of the commission “on an issue of discretion.” Section 121.23(4).

Considering these standards, we conclude that the commission has not exceeded its statutory authority in granting regular disability benefits to Wiggins, and that its decision is based on substantial evidence. The apparent purpose of Section 121.-091(4)(c) is to provide the administrator with guidelines in its decisions regarding benefits, and to furnish a ready means of obtaining benefits to claimants with obvious, certifiable “permanent and total disability.” The harder cases, like that of Wiggins, are left to the commission to determine on the basis of substantial evidence.

There was substantial evidence here that Wiggins was physically precluded from employment for which she was vocationally qualified.

We therefore affirm the order in its entirety, finding no error in the commission’s exercise of discretion. We have considered Wiggins’ cross-appeal and find it to be without merit in view of the evidence linking her disability with the post-employment vascular disorder.

AFFIRMED.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.

      . Section 121.091(4)(b) and (c) provide:
      (b) Total and permanent disability. — A member shall be considered totally and permanently disabled if, in the opinion of the administrator, he is prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee. The decision of the administrator on these questions shall be final and binding.
      (c) Proof of disability. — The administrator, before approving payment of any disability retirement benefit, shall require proof that the member is totally and permanently disabled as provided herein, which proof shall include the certification of the member’s total and permanent disability by two licensed physicians of the state and such other evidence of disability as the administrator may require.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CONTAINER CORPORATION OF AMERICA, Appellant, v. VOLUSIA TIMBER CORPORATION, a Florida Corporation, et al., Appellees.
    No. LL-6.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    John E. Houser, Jacksonville, for appellant.
    Charles Cook Howell, III, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellees.
   PER CURIAM.

The appellant brings for review the final summary judgment entered against it in its suit against Volusia Timber Corporation. By a cross-appeal, the Volusia Timber Corporation brings for review the order of the trial court denying its motion to dismiss the suit of the Container Corporation of America against said Timber Corporation.

Upon a review of the record, briefs and consideration of oral argument of counsel, the appellant Container Corporation of America has failed to demonstrate reversible error on the part of the trial court by the entry of its final judgment in favor of Volusia Timber Corporation and against Container Corporation of America. From such finding, it follows that it is not necessary for this court to consider the cross-appeal of the appellee. The appellant having failed to demonstrate reversible error, the summary final judgment entered against it and in favor of Volusia Timber Corporation, a Florida corporation, is hereby AFFIRMED.

McCORD, C. J., MELVIN, J., and FAY, LAWRENCE D., Associate Judge, concur.


text:
    Joan Jones WEBB and Coronet Realty Corp., Petitioners, v. FLORIDA REAL ESTATE COMMISSION and Casimer M. Szpak, Respondents.
    No. 77-707.
    District Court of Appeal of Florida, Third District.
    March 19, 1979.

      H. Robert Koltnow, Miami, for petitioners.
    Howard Hadley and Frederick H. Wilsen, Jr., and Richard J. R. Parkinson, Winter Park, for respondents.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 11, 1977 (351 So.2d 71) denying in part and granting in part a petition for writ of certiorari to the Florida Real Estate Commission in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment, 367 So.2d 201, filed December 21, 1978 and mandate now lodged in this court quashed a portion of this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on November 16, 1977 is withdrawn, the judgment of this court heretofore filed in this cause on October 11, 1977 except as is affirmed by the judgment of the Supreme Court dated December 21, 1978 is vacated, the opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the Florida Real Estate Commission is hereby reinstated.


text:
    Juanita C. P. WICKHAM v. The PRUDENTIAL INSURANCE COMPANY OF NORTH AMERICA.
    No. 63928.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Beverly P. Phillips applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied. On the assignments of error asserted, there is no error of law.

SUMMERS, C. J., and MARCUS, J., would grant the writ.

BLANCHE, J., recused.


text:
    Joseph COUSIN v. Michael D. PAGE et al. Mr. and Mrs. George LAURENT v. Michael D. PAGE et al.
    No. 63983.
    Supreme Court of Louisiana.
    March 5, 1979.
   It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Mrs. Margaret HOLLOWAY et al. v. SOUTHERN BAPTIST HOSPITAL et al.
    No. 63992.
    Supreme Court of Louisiana.
    March 5, 1979.
   In re Southern Baptist Hospital and Underwriters at Lloyds, London applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 367 So.2d 871.

Writ denied.


text:
    STATE of Louisiana v. Urban P. PRESTONBACH.
    No. 64033.
    Supreme Court of Louisiana.
    March 7, 1979.
   In re Urban P. Prestonbach, applying for writs of certiorari, prohibition, mandamus and for a stay order. St. Martin Parish.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    Mrs. Frances L. BERGERON, etc., et al. v. MCLEAN TRUCKING CO. et al.
    No. 64116.
    Supreme Court of Louisiana.
    March 9, 1979.
   In re Mclean Trucking Company and David E. Kelly, applying for supervisory writs of certiorari or review. Parish of Terrebonne.

Writ denied.


text:
    STATE of Louisiana v. Bill MOUDY.
    No. 64115.
    Supreme Court of Louisiana.
    March 9, 1979.
   In re Bill Moudy applying for bond reduction. Parish of West Feliciana.

Writ denied.


author: PONDER, Judge.

text:
    STATE of Louisiana In the INTEREST of Scotty Lynn COLLUM.
    No. 12163.
    Court of Appeal of Louisiana, First Circuit.
    On Rehearing Jan. 16, 1979.
    Walter K. Naquin, Jr., and Jerome J. Barbera, III, Asst. Dist. Attys., Thibodaux, for plaintiff and appellee.
    R. Dwain Blakley and Wilson F. Walters, Denison, Tex., and Russell O. Ayo, Jr., Thi-bodaux, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

We granted a rehearing to reconsider our first opinion in view of the Supreme Court’s decision in State of Louisiana v. Collum, La., 365 So.2d 1272, 1978.

In our first opinion we applied the holding of State, In the Interest of Dino, 359 So.2d 586 (La.1978) that a juvenile could not waive his constitutional right against self-incrimination without consulting an attorney or an adult both interested in the juvenile’s welfare and fully advised of the juvenile’s rights. For retroactive application of Dino, we relied on State of Louisiana, In the Interest of Leander Jones, 360 So.2d 1181 (La.1978) in which the Supreme Court reversed our decision, reported at 357 So.2d 636, and remanded for reconsideration in light of the Dino case.

We were in error. In State v. Collum, supra, concerned with the confession of Donnie Collum, the 15 year old brother of Scotty Collum, the Supreme Court held that the Dino decision will affect only those cases in which the trial began after June 15, 1978.

The appellant contends that the confession should have been suppressed because defendant was being detained in a lock-up in California intended primarily for adult offenders, allegedly a violation of Louisiana and California statutes.

The same contention was made in State v. Collum, supra, and was rejected on two grounds: (1) our statute allows those 15 years old or older to be detained in an adult detention place if in a separate room or ward; (2) improper detention is only a factor in the totality of circumstances test for free and voluntary nature of a confession and does not invalidate per se a confession obtained during the statute’s violation. The first reason does not apply to Scotty Collum since he was thirteen years old at the time. The second reason applies, however, and we reject appellant’s contention that the confession should be suppressed because of that violation. We do consider it as one of the factors in the totality of circumstances test.

In detailed, meticulous written reasons for judgment, the trial court considered all the relevant factors to be considered in determining the free and voluntary nature of the confessions and inculpatory statements. We find no error.

Furthermore, the Supreme Court in State v. Collum, supra, considered the facts surrounding Donnie Collum’s confession and found it to be free, voluntary and admissible. Except for the age of the defendants and minor differences of time and circumstances that we find to be immaterial, Donnie’s and Scotty’s confessions were obtained under circumstances so nearly identical as to dictate a like result.

For these reasons, our prior decision is now recalled and there is now judgment affirming the trial court’s denial of the motion to suppress.

AFFIRMED.

      . LSA-R.S. 13:1577.

      . Calif. Code Ann. Welfare & Institutions, § 216(b).


author: FORET, Judge.

text:
    Gerald CORMIER, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY and Paul Camel, Defendants-Appellees.
    No. 6808.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.

      Plaisance & Franques, A. J. Plaisance, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, W. Gerald Gaudet, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

This is a suit for workmen’s compensation benefits brought by the employee, Gerald Cormier, against his employer, Paul Camel, and his employer’s insurer, Aetna Insurance Company. The sole question presented on appeal is whether the trial court erred in holding that the plaintiff’s disability was not caused or contributed to by a work-related accident.

On February 24, 1976, Gerald Cormier was employed by the Camel Construction Company as a heavy equipment operator. On that date, while operating a backhoe, the plaintiff sneezed and immediately experienced severe chest pains, numbness, and dizziness. The plaintiff was taken to a nearby hospital where he was diagnosed as having a congenital heart disease. The appellant subsequently entered into a workmen’s compensation settlement with Aetna Insurance Company, but later filed the instant suit and succeeded in having the compromise overturned.

Testimony established at trial that the plaintiff had suffered a defect in his heart from birth. The plaintiff was examined by three qualified physicians and all stated that he had an atrial septal defect, otherwise described as a hole in the wall of the heart. This condition was further complicated by an abnormality in the plaintiff’s vein pattern as it enters and exits the heart. As a result of this condition, all three doctors testified that the plaintiff was disabled.

Dr. Ritchey, the examining physician at the hospital to which the plaintiff was taken after the incident, stated that it was highly unlikely that there was any causal relationship between plaintiff’s job and his heart condition. Rather, his heart disease was a congenital condition from which he suffered from the time of his birth. Dr. Frank H. Davis, in his deposition, indicated that although manual labor may place an increased stress on someone suffering from such a defect, that the stress plaintiff experienced on his job had no connection with his disability. According to Dr. Davis, had the plaintiff been examined immediately prior to the onset of the symptoms he complained of, he would have been diagnosed to suffer from the same condition that caused Dr. Ritchey to determine him to be disabled. Finally, Dr. Lester L. Ducote, Jr., emphatically stated that the incident of February 24, 1976, had absolutely nothing to do with the determination of the plaintiff’s disability. The testimony revealed that the reason plaintiff is disabled is due to his congenital heart defect and not any work-related accident that he may have experienced.

It is generally accepted that workmen’s compensation is recoverable when an accident aggravates or accelerates a pre-ex-isting condition thus producing a disability. Anderson v. Jefferson Mechanical Contractors, Inc., 301 So.2d 420 (La.App. 4 Cir. 1974). Therefore, in order to recover benefits, the plaintiff need show that there was (1) an accident; (2) a disability; and (3) a causal connection between the accident and the disability. In this case the plaintiff has failed to establish the latter requirement.

The criterion for causal connection between the accident and the disability is: Has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment? Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968). Clearly, the testimony in this case indicates that the accident did not affect the plaintiff’s disability. Had there been no such accident, the plaintiff would have still been diagnosed as disabled due to his congenital heart disease. Under these circumstances, the appellant has failed to establish a causal connection between the incident which occurred on the job and his disability. Therefore, this Court agrees with the action of the trial court in dismissing plaintiff’s claim.

For the above and foregoing reasons, the judgment of the trial court is affirmed, and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    GREEN THUMB, INC., Plaintiff-Appellee, v. DLJ OF LOUISIANA # 1, Defendant-Appellant.
    No. 6813.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.
    Writ Granted May 4, 1979.
    Shushan, Meyer, Jackson & McPherson by Robert P. Chatelain, New Orleans, for plaintiff-appellee.
    Pugh & Boudreaux, L. H. Olivier, Lafayette, for defendant-appellant.
    Before WATSON, CUTRER and DOU-CET, JJ.
   WATSON, Judge.

This is the appeal of a trial court judgment sustaining an exception of res judica-ta in a suit for nullity of judgment.

The original plaintiff was Green Thumb, Inc., a corporation which is named defendant in the petition for nullity of judgment. The original defendant was DLJ of Louisiana # 1, a partnership in commendam, which is the plaintiff in the petition for nullity of judgment.

To put the present proceedings in perspective, it is necessary to recount the history of the litigation, which has been before this court on two prior occasions. See Green Thumb, Inc. v. DLJ of Louisiana # 1, 313 So.2d 284 (La.App. 3 Cir. 1975) writ denied 318 So.2d 49 (La.) and DLJ of Louisiana # 1 v. Green Thumb, Inc., 334 So.2d 801 (La.App. 3 Cir. 1976).

A petition was filed by Green Thumb, Inc. on October 15, 1974, entitled “Suit to Enforce Materialman’s Lien” claiming the sum of $9,044 with interest, attorney’s fees and costs, against DLJ of Louisiana # 1, described as a partnership in commendam. On the third page of the petition appears the following inscription: “Please serve DLJ of Louisiana # 1 through its agent for the service of process: Shushan, Meyer, Jackson, McPherson & Herzog, Suite 1500, 1010 Common Street, New Orleans, Louisiana, 70112.” (TR. 5).

A citation was issued following the wording of the service request and a return was made indicating that personal service had been made on Mitchell Herzog on October 17, 1974, the return being signed by one M. Nuss, Deputy Sheriff of Orleans Parish.

A default was confirmed against DLJ on November 18, 1974, and a judgment was signed in favor of Green Thumb, awarding the amount demanded and recognizing a materialman’s lien against certain property.

DLJ then appealed to this court, urging only that there was no service. Since the record reflected that Mr. Herzog had been served by Deputy Nuss, this court rejected DLJ’s appeal, affirmed the default judgment and awarded damages for frivolous appeal.

DLJ then filed a petition in the trial court contending that the judgment of November 18, 1974, was null and void, because Mr. Herzog was not in New Orleans on the alleged date of service and could not have been served as indicated on the return. This petition also claimed that DLJ was entitled to damages for premature execution of the judgment.

An exception of no cause or right of action was filed by Green Thumb to the petition for nullity, which was sustained by the trial court.

A second appeal to this court ensued, the issue being whether the appeal by DLJ constituted a general appearance which waived any invalidity of service.

This court held that under LSA-C.C.P. art. 7, DLJ was entitled to appear to urge that the court had no jurisdiction because of the invalid service. The trial court’s ruling maintaining the exception was reversed and the case was remanded for trial.

A supplemental petition was filed by DLJ on September 16, 1976, alleging that Green Thumb used “fraudulent” means of citation. The supplemental petition, which was signed and verified by counsel of record, added:

“On October 20, 1975, DLJ of Louisiana # 1 was required to pay Green Thumb, Inc. the sum of $12,036.00 in satisfaction of this judgment and is entitled to the return of this $12,036.00 as a result of the nullity of the judgment.” (TR. 34).

The supplemental petition further alleged that defense of the suit had caused DLJ expenses totaling $4,901.94 and that DLJ was also entitled to recover that sum from Green Thumb.

Green Thumb answered DLJ’s petitions, denying most of the allegations on information and belief.

DLJ then filed a motion for summary judgment attaching various affidavits and other documents, but the motion for summary judgment was referred to the merits, and in effect, denied by the trial court.

On May 2, 1977, a second supplemental and amending petition was filed by DLJ alleging that the original petition filed by Green Thumb states that DLJ is a partnership in commendam; that LSA-C.C.P. art. 1263 requires service of citation on a partnership be made by personal service on a partner; and that Mr. Herzog is not and has never been a partner of DLJ.

An exception of prescription was filed by Green Thumb, as well as an answer denying the allegations, exceptions of no cause or no right of action, res judicata and judicial estoppel.

The matter was then tried on the merits. Following this hearing, the trial court sustained the exception of res judica-ta and dismissed DLJ’s petition for nullity. The trial court erred in sustaining the exception of res judicata; it is axiomatic that a judgment cannot be res judicata to a suit to annul it. Grant v. Securities Finance Company, 173 So.2d 356 (La.App. 1 Cir. 1965).

However, we find that the disposition was correct for other reasons.

As noted above, DLJ judicially asserted in the supplemental petition that the judgment in question was paid October 20, 1975.

LSA-C.C.P. art. 2003 provides as follows: “A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”

The present record does not reflect whether payment by DLJ was voluntary or not. If voluntary, then DLJ acquiesced in the judgment and the action of nullity is barred.

If not voluntary, then the alternative provision of Article 2003 comes into play. The record contains an exhibit, D-5, which is an affidavit of change of domicile of DLJ. On April 17, 1975, the affidavit was executed (and also filed for record in Lafayette Parish) to effect a change of DLJ’s address and domicile from New Orleans to “100 Belle-fontaine, Lafayette, Louisiana.” (TR. 129). Therefore, DLJ must be considered to have been present in Lafayette Parish when the judgment was executed.

Under the circumstances, DLJ acquiesced in the judgment and the suit for nullity fails.

Therefore, the judgment of the trial court, insofar as it dismisses the petition for nullity, is affirmed.

All costs on appeal are taxed against DLJ of Louisiana # 1.

AFFIRMED.


author: CUTRER, Judge.

text:
    Robert E. DOWDEN, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC CO., INC., Defendant-Appellant.
    No. 6820.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.
    Tommy C. Rutledge, DeQuincy, for defendant-appellant.

      Edward K. Alexander, DeQuincy, for plaintiff-appellee.
    Before WATSON, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Robert Dowden brought suit for damages he allegedly occasioned by the disconnection of electrical services to his residence in De-Quincy, Louisiana by the defendant electrical supplier, Central Louisiana Electric Co., Inc. (CLECO).

The plaintiff had been a customer of CLECO since 1942. During this time, he had become delinquent in the payment of his electrical bills several times and his electricity had been disconnected as a result thereof. He was reinstated each time by the payment of the past due bill plus a connection fee. On the occasion in question, a CLECO collection employee testified that notice was mailed by CLECO on February 13, 1975, for the January bill. The January bill was not paid. The employee further stated that on March 14th plaintiff was bill for both January and February. A disconnect notice was attached to this March statement notifying plaintiff that if the delinquent January bill was not paid within five days, the electricity would be disconnected. No payment was made, and on March 27th the plaintiff’s electricity was disconnected by CLECO. The electricity remained turned off until April 2, 1975, at which time plaintiff paid the delinquent bill plus the connection fee and was thus reinstated.

The plaintiff brought suit for the loss of food in the freezers of his home. It was stipulated that the value of the food was $1,200.00. After trial on the merits the trial judge rendered judgment in favor of the plaintiff and against the defendant for the stipulated sum of $1,200.00. CLECO appeals.

The issue on appeal is whether the utility company gave adequate notice to the customer when it mailed, by ordinary mail, the notice that the customer’s electricity would be disconnected if the delinquent bill was not paid within five days.

Plaintiff testified that he had left De-Quincy on March 25th for a five-day visit with his daughter in DeRidder. He stated that he did not receive, by mail or otherwise, any notice that his electricity would be disconnected. Upon his return home he found his electricity disconnected and the food in his two freezers had spoiled. He also testified that he had been delinquent several times in the past, resulting in his electricity being disconnected. He stated that each time he would pay the delinquent bill and connection fee for reinstatement.

The serviceman for CLECO, Quintan Cole, stated that his job includes the disconnection of service of delinquent customers. In this instance he followed his usual procedure. He stated he went to the plaintiff’s house; finding no one answering the door, he placed a red tag on the door notifying the plaintiff that he would return later that day to disconnect the electricity. This witness stated that he returned later and disconnected the electricity. Mr. Cole stated that he had disconnected plaintiff’s electricity on several occasions for nonpayment for service.

The trial judge took the position that the plaintiff must receive actual notice of CLE-CO’s intention to disconnect for a delinquency in payment of electrical bills. We disagree with this position.

The issue presented herein was passed upon by this court in the case of Sawyer v. Central Louisiana Electric Company, 136 So.2d 153 (La.App. 3rd Cir. 1962), certiorari denied February 26, 1962. The court held as follows:

“The next argument by plaintiff is that the Public Service Commission order requires personal service of a disconnect notice. We do not agree that it was the intent of this order that the disconnect notice be served, but rather that ordinary mailing of such notice is sufficient.
******
“The Public Service Commission order in this regard requires that prior to the discontinuance of a utility company’s service to its customers for nonpayment of bills, the customer must be served with a direct and specific notice of the company’s intention at least five days in advance of the actual discontinuance. .
“Having determined that the notice in question was mailed and that mailing this notice by ordinary mail complied with the Commission’s order, we cannot find that the defendant was guilty of any actionable fault.”

The Electric Service Agreement in this case, approved by the Public Service Commission, contained a provision very similar to that found in Sawyer. It provided as follows:

“The Company may suspend service at any time that the Customer fails to comply with these Terms and Conditions or with the provisions of any contract between the Customer and the Company. At least five (5) days notice will be given to the Customer by the Company of its intent to so suspend service except in cases of emergency or fraud.”

The mailing of the notice by CLECO by ordinary mail complied with the Public Service Commission requirement.

The plaintiff’s contention that this type of notice is unconstitutional under the holding of the case of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), is without merit. Plaintiff urges that CLECO is a public body since it is regulated by the Public Service Commission and as such the above case is applicable. The fact that a utility is regulated by a state body does not convert that utility from a private utility company to a public body. The case of Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) held as follows:

“Here the action complained of was taken by a utility company which is privately owned and operated, but which in many particulars of its business is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. [Moose Lodge No. 107 v. Irvis] 407 U.S. [163], at 176-177, 92 S.Ct. [1965], at 1973, [32 L.Ed.2d 627]. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm’n v. Pollak, 343 U.S. 451, 462, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952). ...”

We hold that the mailing of the notice to the plaintiff by CLECO was adequate notice under the provisions of the agreement approved by the Public Service Commission. CLECO is not liable for plaintiff’s damages.

For these reasons, the judgment of the district court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at his costs.

REVERSED AND RENDERED.


author: CULPEPPER, Judge. GUIDRY, Judge,

text:
    Earl John OLIVIER, Plaintiff and Appellant and Appellee, v. Donald W. DOGA, Clerk of Court, Defendant, Louis B. Viviano, Intervenor-Appellant.
    No. 6826.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.

      Louis B. Viviano, Opelousas, for plaintiff-appellant.
    Olivier & Brinkhaus, John L. Olivier, Sunset, for defendant-appellee.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   CULPEPPER, Judge.

The plaintiff, Earl John Olivier, filed this suit for a writ of mandamus against Donald Doga, clerk of court of St. Landry Parish, ordering the clerk to cancel a judgment in favor of plaintiff’s former wife, Marsha Mock Fontenot, and against plaintiff for the sum of $16,363. The judgment arose out of a suit for the partition of community property. Plaintiff and his former wife compromised the judgment, and she executed a proper authorization to cancel it. The wife’s attorney, Louis B. Viviano, had filed a contingent fee contract two days before the filing of the authorization for cancellation. The attorney intervened, asserting a lien on the judgment under both the contingency fee contract and under the attorney’s lien provided by LSA-R.S. 9:5001. The attorney contends the judgment cannot be canceled without his consent. Although he gave no reasons, the district judge ordered the judgment canceled “except to the extent of the amount of intervenor’s fee at whatever sum same may be fixed in proper proceedings.” The attorney intervenor appealed. Plaintiff also appealed.

The substantial issues are: (1) Is an attorney’s contingency fee contract, under LSA-R.S. 37:218, to represent the wife in a suit to partition community property void as against public policy, where the contract is entered into after a judicial separation but before divorce? (2) Where the attorney has a special privilege on the judgment under LSA-R.S. 9:5001, is he one of the “parties interested” under LSA-C.C. Article 3371, so as to require the attorney’s consent for the cancellation of the judgment, even though the attorney has not filed in the mortgage records an affidavit or other notice to third parties of his privilege under R.S. 9:5001?

The briefs of counsel for both parties state some facts which are not supported by evidence in the record before us. Nevertheless, the following essential facts are sufficiently shown by evidence and are not disputed.

On November 18, 1974, Mrs. Marsha Mock Olivier entered into a contingency fee contract with Louis B. Viviano, attorney at law to represent her “in a suit to partition the community formerly existing between my husband, Earl John Olivier, and myself.” Although the record does not show the date, Mr. and Mrs. Olivier had been legally separated a short time before the contingency fee contract at issue was signed. Pursuant to this contract, attorney Viviano filed Civil Suit No. 67,968 entitled “Marsha Mock Olivier v. Earl John Olivier” for a partition of the community. In 1975, Mr. and Mrs. Olivier were divorced, but shortly thereafter they remarried. As far as we can determine from the record before us, no judgment of partition of community property was ever rendered in the first suit, No. 67,968.

Mr. and Mrs. Olivier were again divorced, and in 1977 a new suit for partition of community property was filed, this suit bearing No. 73360-2 entitled “Marsha Mock Fontenot v. Earl John Olivier.” On April 28, 1978, a judgment was rendered in Suit No. 73360-2 in favor of Marsha Mock Fon-tenot and against Earl John Olivier for the sum of $16,363.22. This is the judgment at issue, which plaintiff seeks to cancel, and as to which attorney Viviano asserts a privilege.

On May 23, 1978, attorney Viviano filed in the record of Civil Suit No. 73360-2 and in the mortgage records of St. Landry Parish, the contingency fee contract of date, November 18, 1974, his purpose apparently being to assert under this contract a privilege on the judgment of April 28,1978. On May 25,1978, Earl John Olivier, plaintiff in the present mandamus proceeding, filed in the office of the clerk of court of the Parish of St. Landry an authorization by Marsha Mock Fontenot to cancel the judgment in No. 73360-2, stating that the judgment had been compromised. Pursuant to this authorization by Marsha Mock Fontenot, a deputy clerk canceled the judgment on May 25, 1978.

On June 7, 1978, the clerk of court, Mr. Donald Doga, wrote a letter to Mrs. Marsha Mock Fontenot advising her that the cancellation of the judgment had been withdrawn “due to the fact a contingency contract was executed by you and Mr. Louis Viviano and filed on May 23, 1978, and this contract is still in effect.”

On June 9, 1978, Earl John Olivier filed the present suit for a writ of mandamus ordering the clerk of court to cancel the judgment.

On June 12, 1978, attorney Viviano obtained from the office of the clerk of court a certified copy of the judgment of April 28, 1978, and Viviano typed on the bottom of the judgment a “Notice Of Privilege”, in which he stated that the judgment was subject to a lien for his attorney’s fee under R.S. 9:5001. He filed this in the suit record in No. 73360-2 and in the mortgage records.

The first issue is whether the contingency fee contract of date, November 18, 1974 is void as against public policy. As stated above, this contract was entered into after Marsha Mock Olivier was legally separated from Earl John Olivier, but before they were divorced the first time. In Aucoin v. Williams, 295 So.2d 868 (La.App. 3rd Cir. 1974), writ refused, 299 So.2d 798 (La.), an attorney entered into a contingency fee contract to defend the wife in a divorce action by her husband. The stipulated contingent fee was one-third of any community property received by the wife. We held that the contract was void as it offended public policy, citing Succession of Butler, 294 So.2d 512 (La.1974). We held:

“. . . the rationale of Butler is that such a contingency fee contract should neither induce nor hinder a reconciliation of the parties. At the time Mrs. Alfred entered into this contract with Mr. Au-coin, she was married to Mr. Alfred and the payment of the fee was contingent upon a divorce. Such a contingency fee contract could have hindered a reconciliation before the divorce judgment was signed. The rationale of the rule is to allow the parties to decide whether to become reconciled or not without pressure from attorneys because of contingent fees predicated on a divorce decree.”

In relying on the Butler case, we quoted the following strong policy statement by our Supreme Court in Butler:

“ ‘It is not the fact that any evil result grew out of the contract in the case at bar which strikes it with nullity; it is the tendency which approval of such contracts would have to produce evil results in other cases which makes them repro-bated by the law.”

Applying these rules to the present case, it is clear that the contingency fee contract entered into between Louis B. Vi-viano and Mrs. Marsha Mock Olivier on November 11,1974, at a time when kr. and Mrs. Olivier were still married, is void as offending public policy.

Since the contingency fee contract is void as against public policy, it can have no effect either in the first suit for partition of the community property, which apparently was never completed, or in the suit for partition which resulted in the judgment at issue of date, May 25, 1978. Thus, even though attorney Viviano filed the original contingent fee contract in the record in Suit No. 73360-2 and in the mortgage records on May 23, 1978, which was two days before the judgment was canceled on May 25,1978, the contract, being null and void, did not have the effect of either creating or giving notice of a privilege on the judgment under LSA-R.S. 37:218.

The next issue is whether attorney Vivi-ano has a special privilege on the judgment under LSA-R.S. 9:5001, so that his consent was required for the cancellation of the judgment, even though he had not filed in the mortgage records an affidavit or other notice to third parties asserting a lien under R.S. 9:5001 on the judgment. As stated above, attorney Viviano did obtain a certified copy of the judgment and typed on it a “Notice Of Privilege” which he filed in the suit record and in the mortgage records on June 12, 1978, but this was after the clerk had received on May 25,1978 the authorization for cancellation by Mrs. Marsha Mock Fontenot, stating that the judgment had been compromised with Mr. Olivier.

In the similar case of Palmer and Palmer v. Stire, 195 So.2d 706 (La.App. 1st Cir. 1967), writ of certiorari refused, 250 La. 645, 197 So.2d 899, the plaintiffs were attorneys who had obtained a judgment in favor of one Joseph Ory and against Theodore Griffin for the sum of $7,499, of date, March, 1960. In 1965, Griffin mortgaged land, and at the time of closing the loan paid Ory $4,000 in settlement of the judgment. Ory signed an authorization pursuant to which the clerk of court canceled the judgment. The attorneys then filed suit against the clerk of court and the mortgagee for judgment ordering the reinscription of the judgment in favor of Ory, and recognizing the judgment as being a first privilege on the property in preference to the mortgage. The court held that the attorney’s privilege on a judgment under LSA-R.S. 9:5001 is not protected as against a third party mortgagee, where no notice of the privilege has been filed in the mortgage records of the parish.

In Selly v. Watson, 210 So.2d 113 (La. App. 1st Cir. 1968), an attorney who had an oral contract for his services obtained judgment in favor of Selly and against Watson. The judgment was later seized by a third party creditor of Selly, and was sold by the sheriff and the funds were disbursed. The attorney who had obtained the judgment then filed suit against the seizing third party creditor for money judgment for his fee, which he asserted under an alleged privilege against the judgment. In denying the claim of the attorney, the court stated:

“In Palmer & Palmer v. Stire, La.App., 195 So.2d 706, we discussed at length LSA-R.S. 9:5001 and R.S. 37:218 and stated that for an attorney’s lien and privilege to be effective against third parties the same must be recorded with the Clerk of the District Court either in the mortgage records or in the pending suit.
“Relator’s proper procedure in this matter was to have filed an affidavit asserting a lien and privilege at any time prior to the disbursement of the funds by the Sheriff. He could also have intervened in the suit for mandamus and urged his lien at that time.
“It was not until this present rule was filed that anyone other than Mr. Barnes and his client knew that he had undertaken the original litigation on a contingency fee basis or that he was owed anything by his client, Selly. Having waited until this late date he must now look to his client for his fee or any funds advanced by him on behalf of his client.”

In Roberts v. Hanover Insurance Company, 338 So.2d 158 (La.App. 2d Cir. 1976), an attorney, Wells, obtained a money judgment for Pollard against Roberts. Roberts filed a concursus proceeding depositing the amount of the judgment in the registry of the court and citing as claimants attorney Wells, who had a contingent fee contract with Roberts, and Hanover Insurance Company, who claimed a preference as a judgment creditor of Pollard and who had seized Roberts’ interest in the suit. After Hanover seized Roberts’ interest in the suit, Wells filed a copy of his written contingent fee contract in the record of the Pollard v. Roberts suit and in the record in the concur-sus proceeding. The court held that since attorney Wells asserted his claim prior to disbursement of the proceeds of the judgment, his privilege took first rank under LSA-R.S. 9:5001. Palmer, supra, was distinguished on the basis that it is authority only for the proposition that a written contingent fee contract under LSA-R.S. 37:218 must be filed as provided in the statute to be effective. The court distinguished Selly, supra, on the basis that it stands for the proposition that the attorney’s privilege (under LSA-R.S. 9:5001) must be asserted “in some manner prior to disbursement of the judgment proceeds to a third party.”

In the present case, we have already found that the contingent fee contract of November 18, 1974 is void as against public policy. Hence, we are no longer concerned with a claim by the attorney under the contract. The sole remaining issue is whether the attorney can assert his privilege under LSA-R.S. 9:5001. Under the rationale of the three cases discussed above, Palmer, Selly and Roberts, we conclude that the attorney in the present case lost his privilege as against the third party judgment debtor, Earl John Olivier, by failing to file an affidavit or other notice of his privilege under LSA-R.S. 9:5001 either in the mortgage records or in the suit record prior to the time the judgment was canceled by authorization of' the judgment creditor alone. As in Palmer and Selly, supra, the attorney in the present case could have protected his privilege in several ways. After the divorce, he could have obtained a new contingent fee contract and filed that in accordance with the procedures set forth in LSA-R.S. 37:218. Or, at the time he obtained the judgment or at any time thereafter prior to the time the authorization to cancel the judgment was filed, he could have filed an affidavit in the mortgage records of the parish asserting his privilege against the judgment. Such a procedure is provided by LSA-C.C. Articles 3274 and 3348. The use of either of these procedures would have put Mr. Olivier and the clerk of court on notice that attorney Viviano had a privilege against this judgment, and that it should not be canceled without his authorization.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Earl John Olivier, and against the defendant, Donald Doga, clerk of court, and the intervenor, Louis B. Viviano, ordering that Donald Doga, as clerk of court, and ex-officio recorder of mortgages in and for the Parish of St. Landry, cancel and erase from his mortgage records that certain judgment in Civil Suit No. 73360-2 on the docket of the Twenty-seventh Judicial District Court for the Parish of St. Landry, entitled “Marsha Mock Fontenot v. Earl John Olivier”, said judgment being dated April 28, 1978 and being in the sum of $16,363.22, and being recorded in Mortgage Book 504 at page 102. All costs in the trial and appellate courts are assessed against the intervenor, Louis B. Viviano.

REVERSED AND RENDERED.

GUIDRY, J., concurs in the result and assigns written reasons.

GUIDRY, Judge,

concurring.

I do not agree that an LSA-R.S. 37:218 contract, although invalid as against public policy, cannot under any circumstances provide notice to third parties of an attorney’s privilege for the amount of his professional fee on a judgment obtained by him. In my view a document prepared and recorded pursuant to the provisions of R.C.C. Article 3348, although invalid as a contingency fee contract, if timely recorded will preserve the attorney’s privilege under LSA-R.S. 9:5001. In the instant case, however, the recorded document does not comply with the provisions of the cited codal article nor does it afford clear notice to third persons that the intervenor was asserting a privilege against the judgment obtained by him. For these reasons I respectfully concur.


author: DOUCET, Judge.

text:
    Linda Moffett HENRY, Indiv., etc., Plaintiff-Appellant, v. Richard R. BELGARD, Defendant-Appellee.
    No. 6830.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.

      Baker, Culpepper & Brunson, J. Michael McDonald, Jonesboro, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Eugene P. Cicardo, Provosty & Sadler, William H. deLaunay, Jr., Alexandria, for defendant-appellee.
    Before WATSON, CUTRER, and DOU-CET, JJ.
   DOUCET, Judge.

This case was consolidated for trial and appeal with Numbers 6831, 368 So.2d 474 and 6832, 368 So.2d 475, on the docket of this Court. The issue is the same in these three cases and will be discussed herein, although separate opinions in each case are being rendered on this day.

This is an action for the recovery of damages for the wrongful death of James R. Henry and for personal injuries allegedly sustained by the defendant, Richard R. Bel-gard, arising out of an automobile accident involving vehicles driven by these two individuals. The central issue raised on appeal is whether the trial court erred in holding that James Henry was at fault and therefore dismissing plaintiff’s wrongful death action and awarding recovery to the defendant.

At approximately 1:00 A.M. on the morning of November 21, 1974, an automobile driven by James Henry collided with the defendant’s vehicle at the intersection of Jackson and Fourth Streets in Alexandria, Louisiana. James Henry had been proceeding in a westerly direction on Jackson Street and Richard Belgard was driving north on Fourth Street. James Henry was killed by the resulting force of the collision.

The evidence introduced at trial revealed that this intersection was controlled by a semaphore traffic light that runs through a sixty-second cycle. It flashes green on Fourth Street for thirty seconds and then turns amber for three seconds before turning red.

The only witness to give testimony in evidence in this case was the defendant. Although Mr. Belgard had one passenger in his vehicle, the facts indicated that he did not observe the road at the time of the accident.

The defendant stated that he had turned onto Fourth Street from Monroe Street, several blocks below the intersection with Jackson. Mr. Belgard testified that after turning onto Fourth Street he proceeded towards Jackson Street and that he had the green light at some point prior to reaching it. According to his testimony, the light remained green and never changed. Despite extensive cross-examination, the defendant stated that he could not remember how close he was to Jackson Street when he first noticed that the light was green.

Mr. Belgard was ticketed at the scene of the accident for Driving While Intoxicated and readily admitted on the stand that he had had “a couple of beers” prior to the accident. The investigating officer, R. V. Guidry, stated that the defendant “smelled of alcohol”, however, the record does not reflect what percentage of alcohol was contained in the defendant’s blood system at the time of the test. Officer Guidry did not provide any evidence as to the positioning of the light at the time of the accident.

Based upon an analysis of the above evidence, the trial judge concluded that “ . . . the Court is bound by the testimony of Mr. Belgard and must hold that he had the green light.” Consequently, the court found the decedent to be at fault and accordingly dismissed the claim of his survivors. The trial court awarded the defendant $250 for his personal injuries and an additional $2,660.16 in property damage. Plaintiffs now appeal from this judgment.

In order for a plaintiff to be successful in a case arising from an automobile accident, he must prove by a preponderance of the evidence that the defendant’s conduct was a cause-in-fact of the accident. State Farm Mutual Insurance Co. v. South Central Bell, 343 So.2d 758 (La.App. 3rd Cir. 1977).

The mere showing that a motorist has imbibed alcohol prior to involvement in an automobile accident does not per se establish negligence contributing to the accident. Whether intoxication is a contributing cause of the accident must be determined in the light of the circumstances of each particular case. Carter v. Alexis, 356 So.2d 445 (La.App. 1st Cir. 1977).

In this action, the trial judge was in the best position to examine the credibility of the witnesses and to weigh the totality of the evidence. Although there is a legal presumption that no one intentionally exposes himself to a known danger, this is a rebuttable presumption and the trial court was of the opinion here that the defendant’s evidence outweighed that offered by the plaintiff. Clearly, this was a factual determination by the trial court which this court will not reverse in the absence of manifest error. As the record offers ample support for the trial judge’s determination, this court upholds the trial court’s dismissal of the plaintiff’s claim and the award made to the defendant.

For the above and foregoing reasons, the action of the trial court is maintained and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Linda Moffett HENRY, Indiv., etc., Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 6831.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.
    Baker, Culpepper & Brunson, J. Michael McDonald, Jonesboro, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, Eugene P. Cicardo, Alexandria, Provosty & Sadler, William H. deLaunay, Jr., Alexandria, for defendant-appellee.
    Before WATSON, CUTRER, and DOU-CET, JJ.
   DOUCET, Judge.

This is a companion case to the matter entitled “Linda Moffett Henry, Indiv., etc., v. Richard R. Belgard”, No. 6830 on the Docket of this Court, 368 So.2d 472.

For the reasons assigned therein, the judgment of the District Court is affirmed.

AFFIRMED.


text:
    ALL-STAR INSURANCE CORPORATION, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
    No. 6832.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.
    Baker, Culpepper & Brunson, J. Michael McDonald, Jonesboro, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, Eugene P. Cicardo, Alexandria, Provosty & Sadler, William H. deLaunay, Jr., Alexandria, for defendant-appellee.
    Before WATSON, CUTRER, and DOU-CET, JJ.
   DOUCET, Judge.

This is a companion case to the matter entitled “Linda Moffett Henry, Indiv., etc., v. Richard R. Belgard”, No. 6830 on the Docket of this Court, 368 So.2d 472.

For the reasons assigned therein, the judgment of the District Court is affirmed.

AFFIRMED.


author: CUTRER, Judge. WATSON, Judge,

text:
    James J. JAUBERT et ux., Plaintiffs-Appellees, v. CROWLEY POST SIGNAL, INC., Defendant-Appellant.
    No. 6853.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Rehearing Denied March 29, 1979.

      Privat & Regan, Kenneth 0. Privat, Crowley, for defendant-appellant.
    Aaron, Aaron & Chambers, Noble M. Chambers, Jr., Crowley, for plaintiffs-appel-lees.
    Before WATSON, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

Plaintiffs, James J. Jaubert and wife Constance, seek damages as a result of an alleged invasion of privacy as a result of a publication by defendant, Crowley Post Signal, Inc. (hereinafter referred to as Crowley Post). From an adverse judgment defendant appeals. We affirm.

The facts are not in dispute.

Sunday, August 28, 1977, the defendant published on the front page of its daily newspaper a photograph depicting plaintiffs’ home as it appeared through the limbs of a nearby tree. The caption appearing beneath the photograph read as follows:

“One of Crowley’s stately homes, a bit weatherworn and unkempt, stands in the shadow of a spreading oak.”

The plaintiffs’ names were not mentioned nor was the address of the residence given. Robert Charles Dailey, defendant’s editor, stated that the picture was taken two or three days before publication and that it was his decision to publish same. He never attempted to ascertain the names of the owners nor to get their permission to publish the picture.

Mrs. Jaubert testified that she and her husband had purchased the home for $70,-000.00 about one year before the incident. They moved in and undertook some renovation of the house. The trial court’s findings of fact as to the results of the publication are as follows:

“According to testimony which this Court accepts, the plaintiffs were out of town at the time the photograph was published. Mrs. Jaubert testified that the couple returned home three days later in response to her mother’s telephone call, informing plaintiffs of the photo. The plaintiff stated that she was hurt and embarrassed by the picture and was questioned about it by others. She said she had to discuss the situation whenever it was brought up. Mr. Jaubert, likewise, saw the picture for the first time on arriving hime [sic] the Wednesday following the picture’s appearance. He was irrate [sic] about the matter. He stated that for several weeks he was approached about the photo by approximately twenty people. On behalf of the plaintiffs, six witnesses appeared to verify that they had seen the photograph and had recognized the house as that of the plaintiffs’. Each further stated that he or she had discussed the picture with other folks to a varying degree.”

The appeal of the Crowley Post presents three assignments of error:

“1. The Court erred in failing to find that the photograph was published as a newsworthy item and, as such, constituted a matter of public interest, which is privileged and would not constitute an actionable invasion of privacy.
“2. The Court erred in finding that a photograph of an object can constitute an individual’s invasion of privacy when neither the object nor the individual is identified.
“3. The Court erred in finding that a photograph of an object which is visible from a public place could constitute private facts or affairs and be an invasion of an individual’s privacy.”

I.

The Crowley Post contends first that their publication was news and, as such, was privileged and a defense to this action.

We are faced with two competing forces of constitutional rights, i. e., the individual’s right of privacy and freedom of the press. Art. 1, § 5 of the Louisiana Constitution of 1974 provides as follows:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.

Art. 1, § 7 of the Louisiana Constitution of 1974 provides as follows:

“No law shall curtail or restrain the freedom of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.”

The right of privacy was recognized long before the adoption of the Constitution of 1974. In the case of Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4th Cir. 1974), the court observed:

In the case of Hamilton v. Lumbermen’s Mutual Casualty Co., 82 So.2d 61 (La.App. 1st Cir. 1955), where it was recognized that a plaintiff has a cause of action for invasion of his right of privacy the following definition of the right is found:
“It has been defined as ‘the right to be let alone’ and as ‘the right to live one’s life in seclusion without being subjected to unwarranted and undesired publicity.’ ”
This case has been followed and recovery allowed in Lambert v. Dow Chemical Company, 215 So.2d 673 (La.App. 1st Cir. 1968), Pack v. Wise, 155 So.2d 909 (La. App. 3rd Cir. 1963), and McAndrews v. Roy, 131 So.2d 256 (La.App. 1st Cir. 1961).

The invasion of the right of privacy by publication is actionable unless the publication is newsworthy or can be classified as news.

“Recovery for an invasion of a right of privacy is only available when plaintiff’s private affairs have been given unauthorized exposure. The publication of a newsworthy event of public interest is privileged.” Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251 (U.S. D.C., Wrn.Dist., La.1962).

The question then arises as to whether the publication herein was news.

The defendant called Dr. Whitney Mundt, a professor of journalism at L.S.U., who testified that, in his opinion, the photograph herein was a “feature photograph.” He defined such a photograph as one of interest to the public. His testimony in this regard is as follows:

“This photograph in my estimation, in my opinion, is a matter of interest to the public for the simple reason that this is a picture of a home which members of the public have seen, would be interested in seeing again. This is a home which is in the public view, fifteen or twenty feet from a public street; there is no hedge, no fence, nothing which would indicate that the home was intended to be secluded. It is clearly in the public view and there is public interest in photographs of this nature as demonstrated by the fact that we have historical societies, for example, which are dedicated to the preservation of old homes.”

The expert only referred to the photograph as being of public interest. He did not testify that the uncomplimentary remarks about the owners’ upkeep of the home were “newsworthy.” The argument of the Crowley Post may have some merit if only the photograph had been published without the remarks contained in the caption. When the photograph of the home is coupled with the caption, which contained uncomplimentary remarks concerning the owners’ lack of upkeep thereof, the defendant forfeited the defense that the publication was newsworthy. The plaintiffs are protected against “unwarranted and undesired publicity.” Tooley, supra.

II.

The defendant further contends that the photograph cannot constitute an invasion of privacy as neither the object nor the owner was identified. This contention is without merit as the testimony of the plaintiffs and six witnesses reflects that the identification of the house depicted in the picture was recognized and discussed by numbers of people. The plaintiffs were asked about the publication and the remarks accompanying same. The testimony is undisputed in this regard. The plaintiffs had lived in the house for approximately a year, and it would not be unusual for numerous residents of Crowley to recognize the house as being that of the plaintiffs.

In the case of McAndrews v. Roy, 131 So.2d 256 (La.App. 1st Cir. 1961), the defendant utilized photographs of plaintiff as “before and after” pictures for the advertising of defendant’s health studio. The “before and after” photographs of plaintiff were recognized by his fellow employees who called him such names as “muscle head” or “muscle body.” The court labeled such publication as an invasion of plaintiff’s privacy and awarded damages for humiliation and embarrassment. The similarity in McAndrews and the case at hand is that in both cases the objects of the photographs (plaintiff’s images in McAndrews; plaintiffs’ residence along with the unfavorable caption in this case) were recognized by people in the community, causing embarrassment and humiliation to plaintiffs.

Defendant cites the case of Branson v. Fawcett Publications, 124 F.Supp. 429 (D.C., Ill., 1954), where the photograph pictured a wrecked automobile without reference to the driver or the license number. In denying recovery the court stated that the automobile driver could not be identified unless a person had been present at the accident scene when it occurred. The reasoning of the Branson case is not applicable here as the undisputed testimony in this case reflects that the plaintiffs’ home was, in fact, recognized by numerous residents of Crowley.

III.

The defendant lastly contends that since the house was visible from a public street, the publication of the photograph would not constitute an invasion of privacy. This contention is without merit, McAn-drews, supra. The trial judge correctly disposed of this contention in his reasons for judgment when he stated as follows:

“The fact that the photograph as [sic] taken from a public street and could be viewed by any passersby is of no legal consequence. Plaintiffs enjoy the right to be free from unreasonable intrusion. Discovering during one’s absence that his home has been given front page attention, without his permission, accompanied by a less than flattering caption, is an invasion of the right of privacy.”

The publication of the photograph of plaintiffs’ home accompanied by a derogatory remark about the owners, identifiable by a considerable number of fellow citizens in plaintiffs’ home town of Crowley, constitutes an actionable invasion of privacy. The plaintiffs have a right “to be let alone” without being subjected to unwarranted and undesired publicity, Tooley, supra. For this intrusion, defendant is liable for damages to plaintiffs.

Plaintiffs answered the appeal seeking an increase in the awards of the trial court, which were $500.00 to each plaintiff. We have reviewed the record and conclude that the awards are neither inadequate nor excessive. We find no manifest error in this regard.

For the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissenting.

I respectfully disagree with my esteemed colleagues of the majority in their decision of this case.

Initially, it is essential to analyze what the newspaper did that is claimed to have invaded plaintiffs’ right of privacy. The paper published an artistic black-and-white photograph of a view from the public street, looking through branches of a large oak tree, of plaintiffs’ house and yard, the grass being somewhat high and the house looking (rather indistinctly) as though it needed painting. The picture was captioned:

“One of Crowley’s stately houses, a bit weatherworn and unkempt, stands in the shadow of a spreading oak.”

This publication does not constitute an actionable tort for several reasons. First and foremost, the publication by a newspaper of a public scene with a fair comment is protected by the First Amendment to the United States Constitution and LSA-Const. 1974 Art. 1, § 7. See Mashburn v. Collin, 355 So.2d 879 (La., 1977).

Second, the majority errs in relying on the provisions of Article I, § 5, of the Louisiana Constitution, which protects against governmental action. Apart from the fact that the defendant newspaper is not a governmental entity, the privacy which is constitutionally protected is that enjoyed in the interior sanctity of one’s home. The exteri- or, which is visible to all who may pass on the public street, does not enjoy the constitutional protection. The photograph of plaintiffs’ home which appeared in the newspaper merely reproduced something already public and visible.

While a state or city may pass reasonable laws to protect the tranquillity and privacy of its citizens, and may, for example, prohibit door to door solicitation, no legal violation by the newspaper is involved in the instant case. See Breard v. City of Alexandria, La., 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). On the contrary, LSA-C.C. arts. 670 and 671 impose an obligation on property owners to maintain and repair their buildings.

Clearly, the photograph of plaintiffs’ home in and of itself was not an invasion of their privacy. The real basis of their complaint is that they were presented in a false light to the public or defamed. However, there was no falsity. Plaintiffs admitted that their home was in need of certain repairs, which they intended to undertake. The photograph was not altered to reflect discredit on the property owners. No malice was involved; the photograph was one of a series of scenic views in the area published as a matter of public interest. Plaintiffs sustained no damage; they were merely annoyed. The two words used which might have an unpleasant connotation are “unkempt” and “weatherworn”. However, the truth of the description is admitted. The elements necessary for an action for defamation are missing. There is no falsity, malice or injury. See the comment at 28 La.Law Review 82.

The present case differs from McAndrews v. Roy, 131 So.2d 256 (La.App. 1 Cir. 1961) both factually and legally. There the plaintiff’s physique, clad only in: (1) a pair of baggy drawers; and (2) a pair of slim fitting trunks, was portrayed in an advertisement in the newspaper. Presumably, plaintiff was not often in public view similarly clad. In the present case, the house (an object-not plaintiff’s person) was constantly in public view just as it appeared in what was described as a feature picture in the newspaper. Legally, the McAndrews ad had no constitutional protection since it exposed plaintiff’s person to view for profit. The Jaubert house was shown and commented on as news. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 at 511, 19 L.Ed.2d 576 (1967). McAndrews provides no precedent here.

I respectfully dissent.


author: COVINGTON, Judge.

text:
    SECURITIES MORTGAGE COMPANY, INC. v. Andrew TRIPLETT et ux.
    No. 12394.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Writ Granted March 23, 1979.

      John R. Keogh and Stephen R. Wilson, Baton Rouge, of counsel for plaintiff-appel-lee, Securities Mortg. Co., Inc.
    W. Steven Mannear, Baton Rouge, of counsel for intervenor-appellant, Wyema P. Lee.
    Kenneth Riche, Baton Rouge, of counsel for defendant-appellee, Andrew Triplett.
    J. D. Deblieux, Baton Rouge, of counsel for defendant-appellee, Ida Mae Triplett.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is an appeal from the judgment of the trial court in favor of the plaintiff, Securities Mortgage Company, Inc., against the defendants, Andrew Triplett and Ida Mae Triplett, in the amount of $2,752.45, with interest, costs and attorney’s fees, and dismissing the defendants’ reconventional demands and third party demands. The judgment also decreed that “as of the date of this judgment and as long as Andrew Triplett or his agents or representatives are in physical possession of the premises described as Lot 21, Square 8, Suburb South Baton Rouge, East Baton Rouge Parish, located at 1912 Colorado Street, Baton Rouge, Louisiana, the three-year redemptive period applicable to redemption of property sold by tax deed shall not commence to run;” and further decreed that “the intervenor (Wyema P. Lee) has good, though unconfirmed, title to the property based on her tax deed. The mortgage on said property in favor of Securities Mortgage is hereby recognized.”

The essential facts are: On September 23, 1965, Andrew Triplett purchased Lot 21 of Square 8, Suburb South Baton Rouge Subdivision, in East Baton Rouge Parish, Louisiana, located at 1912 Colorado Street in the City of Baton Rouge, as the Triplett family home. In connection with the purchase, Andrew Triplett and his wife, Ida Mae Triplett, executed a demand promissory note in the sum of $6,700.00, secured by a collateral mortgage on said property, which mortgage is held by Securities Mortgage Company, Inc., the plaintiff herein. On May 10, 1971, Ida Mae Triplett left the family home for personal reasons. Since that date, the Tripletts have been divorced, and Mrs. Triplett has not returned to the home. Andrew Triplett continued to reside at the family home until the end of 1973. At that time, the Tripletts’ son, Gerald, took up residence at the family home and was residing there at the time of the trial. Prior to 1971, all property taxes were paid by the Tripletts. However, the 1971 property taxes, $14.63, were not paid and became delinquent on January 1, 1972. On March 30, 1972, a notice of delinquency was mailed by certified mail to Andrew Triplett by the tax collector for East Baton Rouge Parish. The tax notice was returned to the collector marked “undelivered;” and there is no evidence that Mr. Triplett actually received the delinquency notice. On May 24, 1972, the subject property was sold at a tax sale to Wyema P. Lee, the intervenor herein, with the deed being executed on June 9, 1972 and recorded in the public records of East Baton Rouge Parish on June 12, 1972. The tax purchaser filed a petition for monition on August 31, 1976. Pursuant to the monition proceeding, the tax purchaser obtained a judgment homolo-gating and confirming her title to the subject property on October 19, 1976.

Subsequently, on May 25, 1977, Securities Mortgage Company, Inc. filed suit on the promissory note seeking judgment for the balance due of $2,752.45, and praying for recognition of its special mortgage on the subject property. Andrew Triplett answered the plaintiff’s suit and reconvened for damages; he also filed a third party demand against the tax purchaser, urging the nullity of the tax sale due to lack of notice of delinquency. Ida Mae Triplett answered the plaintiff’s suit, reconvened and filed a third party demand against Wyema P. Lee on the same grounds as Mr. Triplett. Mrs. Triplett also third partied Mr. Triplett asserting his negligence in causing her loss of her interest in the subject property. On August 9, 1977, Wyema P. Lee intervened to have the collateral mortgage cancelled by effect of the tax sale and to have her title to the subject property recognized as good.

On January 21,1978, trial on the suit was held. The case was then taken under advisement; and, the trial judge rendered judgment, with written reasons, on April 18,1978. Thereafter, the trial judge signed the judgment appealed.

A review of the record, the briefs of counsel, and of the jurisprudence convinces us that the trial judge correctly decided the facts and correctly applied the applicable law herein, and we adopt and incorporate herein, as our own, his “Written Reasons for Judgment” affecting:

Lot 21, Square 8, Suburb South Baton Rouge, East Baton Rouge Parish, located at 1912 Colorado Street, Baton Rouge, Louisiana.
We therefore, affirm at appellant’s costs.
AFFIRMED.

WRITTEN REASONS FOR JUDGMENT

The issue in this case is the validity of a tax sale and a monition proceeding to confirm the title acquired in said sale.

The facts are as follows: Andrew J. and Ida Mae Triplett were married on March 15, 1950. On September 23, 1965, Andrew Triplett purchased Lot 21, Square 8, Suburb South Baton Rouge subdivision, in East Baton Rouge Parish, located at 1912 Colorado Street in the City of Baton Rouge. In connection with the purchase, Andrew Triplett, Ida Mae Triplett, John Triplett, and Annette Baines Triplett executed a promissory note in the amount of $6,700.00, secured by a mortgage on said property. Said mortgage is held by Securities Mortgage Company, plaintiff and mortgagee herein. On May 10, 1971, Ida Mae Triplett left the family home on 1912 Colorado Street for personal reasons. Since that date, she and Andrew Triplett have been divorced and she has not returned to the home. Andrew Triplett lived there until some time near the end of 1973. His son, Gerald Triplett, presently resides at that address. Prior to 1971, all property taxes and mortgage note payments were apparently paid by the Tripletts. However, property taxes for 1971 were not paid. The taxes due, $14.63, became delinquent as of January 1,1972. The tax collector for East Baton Rouge Parish mailed a notice of delinquency to Andrew J. Triplett at 1912 Colorado Drive by certified mail on March 3,1972. On May 24,1972, the subject property was sold by the Sheriff of East Baton Rouge Parish at a tax sale to Wyema P. Lee, intervenor herein. The deed from this sale was recorded on June 12, 1972.

On August 31, 1976, Wyema P. Lee filed a petition for monition. Pursuant to that proceeding, her title to the Colorado Street property was confirmed and homologated by judgment dated October 19, 1976.

The original action herein was filed by plaintiff against defendants for $2,752.45, allegedly the balance remaining and past due on the note.

Andrew J. Triplett answered the plaintiff’s suit and reconvened. He asserted three defenses and sought damages.

The first defense is equitable estoppel, on the grounds that there had been an agreement for the plaintiff to pay the taxes due on the property and that plaintiff’s failure to pay the taxes for 1971 had resulted in the loss of the property.

The second defense is grounded in defendants’ allegation that the original transaction between plaintiff and defendants was usurious as the interest charged exceeded the maximum allowed by law. He seeks the statutory damages.

His third defense is that he and his wife had overpaid the amount due on the loan from the plaintiff.

Andrew Triplett also filed a third party demand against Wyema P. Lee, urging the nullity of the tax sale due to lack of notice of delinquency.

Ida Mae Triplett answered plaintiff’s suit and reconvened and filed a third party demand against Wyema P. Lee on the same grounds as Andrew J. Triplett. She also filed a third party demand against him, alleging her one-half interest ownership in the property and loss of said interest through the tax sale was due to the negligence of Triplett in not paying the taxes when due or otherwise not acting as a prudent administrator to prevent the sale of the property.

Wyema P. Lee answered the demands against her and filed a petition of intervention asserting alternatively that her title to the property acquired at the tax sale and confirmed through the monition proceeding is good. If her position is correct, the plaintiff’s mortgage was cancelled and the defendants are precluded from attacking the sale due to lack of notice. If her title is not good, she seeks to be reimbursed for the taxes she paid on the property since 1972, and for expenses she incurred in maintaining the property. In connection with the intervention, Andrew J. Triplett has further argued that if Wyema P. Lee is entitled to be reimbursed for her expenses, her claim is set off by rent payments made by him and his son on the property from December, 1976, through June, 1977.

The dispositive issue in the case is the validity of the tax sale of May 24,1972, and the monition proceeding of August 31,1976.

In this connection, most of the evidence developed at trial and the arguments of counsel have dealt with the issue of whether or not Andrew J. Triplett and/or Ida Mae Triplett received the legally required notice of the tax delinquency and subsequent sale. However, the evidence also indicates that Andrew J. Triplett lived on the property at least until near the end of 1973, and that his son lived there without paying rent to anyone until December of 1976. This latter evidence is crucial.

PLAINTIFF’S MORTGAGE AND ACTION ON THE NOTE

The pertinent statutory scheme governing tax sales, tax titles and procedures to quiet tax titles is contained in R.S. 47:2183, R.S. 47:2228, and in Article 10, Section 11 of the Constitution of 1921 as substantively continued in Article 7, Section 25 of the Constitution of 1974.

The constitutional provisions provide that a tax debtor has three years from the date of recordation of the tax deed in which to redeem his property which has been sold for unpaid taxes. In addition, a tax debtor has two more years in which he can attack a tax sale based on certain irregularities in the assessment and/or the tax sale itself. The five-year period is a peremptive one. After its lapse, any claim against a tax deed for basic irregularities is barred. Grieshaber v. Cannon, 339 So.2d 445 (La.App. 1st Cir. 1976).

R.S. 47:2183 provides for the execution of tax deeds which shall contain a statement that the property is redeemable for three years after recordation of the deed and that if the property is not redeemed, the recorded deed itself will operate as a cancellation of all conventional mortgages on the property.

R.S. 47:2228 provides for bringing of monition proceedings to confirm and quiet tax titles after the lapse of the three-year redemption period and the five-year peremp-tive period.

As a general proposition, the indication from the jurisprudence is that these three- and five-year periods do not run as long as the tax debtor remains in possession of his property.

Specifically, in Cook v. Morgan, 142 So. 279 (La.App. 2d Cir. 1932), it was held that,

“If the tax debtor continues in the actual possession of the property sold at tax sale, the possession is a continuous assertion of his title and protest against the sale; the peremption does not accrue and the title cannot be perfected.”

The court in that case found a judgment of monition rendered three years after recor-dation of the tax deed to be null because the debtor had remained in possession of the property during the three years.

In Grieshaber v. Cannon, supra, it was held that the prescriptive period of five years from the date of recordation of a tax deed which cuts off a tax on the deed because of basic irregularities does not run when the tax debtor has been in continual, physical possession of the property. Therefore, the court said that a mortgagee of the debtor could attack the tax deed even after the five-year period, since the debtor himself could attack the deed.

Other cases which stand for the same proposition are Gulotta v. Gutshaw, 283 So.2d 482 (La.1973); and Laventhal v. Lake Investment Corporation, 252 So.2d 521 (La. App. 4th Cir. 1971).

The Laventhal case also contains the statement that,

“The possession required to prevent the loss of property by virtue of the peremption must be open, actual, physical, and of such character as to be a continuous protest against the tax sale; it must also be of such character as to form the basis of the prescription of ten years.”
The court further said,
“It is essential to examine the type and nature of the property in order to determine what type of possession is necessary to constitute open, real and actual possession thereof.”

Kuhn v. Sandefur, 28 So.2d 515 (La.App. 2d Cir. 1946) indicates that possession may be by the tax debtor or his agents.

The precise question posed here has apparently never been ruled on. It is whether or not possession by the tax debtor of his property that has been sold for unpaid taxes will suspend the running of the three-year period after recordation of the tax deed so as to prevent the deed itself from operating as a cancellation of all conventional mortgages on the property. If the answer to this question is yes, the plaintiffs mortgage is still in effect. If the answer is no the plaintiff’s mortgage has been can-celled by the lapse of three years, since recordation of the tax deed.

The threshold issue is whether or not the debtor in this case was in sufficient possession of the property to suspend the running of the three-year period. It is clear that he was. The property is residential. The debtor, Andrew J. Triplett, lived there from the date of the sale in 1972, until at least the end of 1973, after which time his son lived there without paying rent until December of 1976. The possession was actual and physical by the debtor or his agents, the son being treated as his agent and was continual during the three-year period.

The next question is whether or not this possession prevented cancellation of the plaintiffs mortgage against the property. The monition is null and the intervenor’s title has not been confirmed as it was brought before the lapse of the three-year redemption period which had been suspended by the debtor’s continued possession of his property. The thrust of the above-cited jurisprudence is that the three- and five-year periods are not meant to confirm tax titles when the debtor remains in possession. Cancellation of mortgages is merely one facet of confirmation of the title. As noted in Grieshaber v. Cannon, supra,

“The statute has for its obvious purpose the cancellation of such mortgages as a convenient means to clear title to property sold for taxes and relieve a tax vendee of such burdens.”

Since title has not been confirmed, the plaintiffs mortgage has not been cancelled.

In addition to having its mortgage recognized, the plaintiff seeks to recover the balance due on the note executed by defendants, plus interest, plus $29.82 in taxes on the property paid December 21, 1976. The evidence indicates that defendants defaulted on the note payments. The note became due and payable at 8% interest. The plaintiff is entitled to recovery as prayed for.

INTERVENOR’S TITLE AND/OR REQUEST FOR EXPENSES

The defendants have attacked the title of Wyema P. Lee based on her purchase of the property at the tax sale on the grounds that no notice of delinquency was given to them.

The evidence developed at trial through the testimony of Andrew J. Triplett and Mr. Kie Wells, a postman, and exhibits, indicated that Andrew J. Triplett was living at the Colorado Street address in 1972; that Wells attempted delivery of the certified mail which contained the notice of tax delinquency; that he left the proper form directing Triplett to pick up said mail at the post office; and that the notice was never picked up and was returned to the sender with the notation, “unclaimed.”

Carey v. Green, 177 La. 32, 147 So. 491 (1933) controls. It stands for the rule that a notice of tax delinquency sent to the proper post office address of the tax debtor is sufficient notice for tax sale purposes, even though the notice is returned simply because the debtor does not call for it, as there is no requirement that the debtor or any other person actually receive the notice. The rule is repeated in Louisiana jurisprudence as summarized in United States v. Blair, 331 F.Supp. 1277 (D.C.).

As in Carey v. Green, supra, the notice in this case was properly addressed and mailed. The only reason it was not actually received was the failure of the defendant to pick it up. Under these facts and the jurisprudence, the notice was good.

Defendant Ida Mae Triplett has individually attacked the notice because it was neither mailed to nor received by her. However, the jurisprudence is clear that notice must be sent to the record owner and when sent, is sufficient. United States v. Blair, supra, Martin v. Serice, 200 La. 556, 8 So.2d 538 (1942). Andrew J. Triplett was the record owner of the property at the time of the advertisement and sale. Ida Mae Triplett was not.

Based on the court’s finding that notice was sufficient for the tax sale, the interve-nor/purchaser has good, though unconfirmed title to the property based on her tax deed.

On the alternative demand for expenses, because the intervenor has good title to the property, she has no right to be reimbursed for her expenses at this time.

DEFENDANTS’ DEFENSE OF EQUITABLE ESTOPPEL

The defendants have argued that plaintiff should be estopped from enforcing its claim on the grounds that there was an agreement for the plaintiff to pay the taxes on the property; that plaintiff charged the defendants for taxes and insurance premiums the plaintiff paid; and that failure of the plaintiff to pay the 1971 taxes resulted in the loss of the property and subsequent damage to the defendants.

The collateral mortgage indicates that the agreement between the parties was that the mortgagee could pay the taxes in order to prevent the property from being sold. The plaintiff attempted to do so in 1971, when some error was apparently made which prevented receipt of the plaintiff’s check by the tax collector. The plaintiff actually paid the taxes in 1976. There was no agreement that the plaintiff had to pay the taxes. The only agreement was that if the defendants did not pay them, the plaintiff could. The same is true for the insurance premiums paid by the plaintiff.

This defense is without merit.

DEFENDANTS’ CLAIM IN USURY

Defendants argued that the interest charged by the plaintiff on the note exceeds the maximum legal rate of 8%. Total interest charged was $2,991.85. The law places no limits on discounted interest at the time a loan is made. The 8% limitation is placed on interest charged after maturity. The interest in question here was capitalized and was therefore not usurious. C.C.P. Art. 2924 [C.C. art. 2924],

The defendants also claim that the $2,672.39 additional interest which the plaintiff has charged on the note since it matured on default of the February, 1966, payment is excessive. The terms of the note are clear. On default of any payment, the entire note matures. The holder then has the right to charge an additional 8% interest on the balance.

It is clear that the law places no limit on the amount of capitalized interest which a lender may charge as long as the note bears no more than 8% interest after maturity. It is also clear that a note may be accelerated when a single payment becomes past due and that the lender may keep the capitalized interest and charge 8% interest per annum on the balance from maturity. International Harvester Credit Corporation v. McGill, 297 So.2d 272 (La. App. 3rd Cir. 1974).

None of the interest charged by the plaintiff is usurious.

IDA MAE TRIPLETT’S CLAIM AGAINST ANDREW J. TRIPLETT

Ida Mae Triplett third-partied Andrew J. Triplett on the grounds that if her one-half interest in the property was lost, it was done through the neglect of Andrew J. Triplett in failing to pay the taxes when due.

Since the intervenor’s title has not yet been confirmed, Ida Mae Triplett has not yet irrevocably lost her interest in the property. Her claim is therefore without merit.

Judgment will be signed in accordance with the above reasons.

BATON ROUGE, LOUISIANA, this 18th day of April, 1978.

(s) Melvin A. Shortess JUDGE