author: LEMMON, Judge.

text:
    CARRIER LEASING CORPORATION v. READY-MIX COMPANIES, INC. CARRIER LEASING CORPORATION v. ST. CHARLES READY MIX, INC.
    No. 9060.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearings Denied July 12, 1979.

      Francipane, Regan & St. Peé, Richard T. Regan, Metairie, Kenneth A. Beoubay, Gretna, for relator.
    Scariano & McCranie, George Scariano, Metairie, Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., New Orleans, for respondent.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This matter is before the court on a writ of review, issued in response to defendants’ application for supervisory writs under C.C.P. art. 2201 in order to review a judgment refusing to dissolve a writ of sequestration.

The litigation began when plaintiff filed two separate actions which asserted a lessor’s privilege on certain concrete trucks allegedly leased to defendants under several contracts of various dates. The petitions, which alleged defendants were in default on the contracts, demanded immediate seizure of the trucks and judgment, after due proceedings, awarding the amount due and recognizing the privilege.

Immediately after seizure defendants obtained release of some of the trucks by furnishing a sequestration bond and then filed a motion to dissolve the writ and to recover damages for wrongful issuance. The motion was based on the assertion that the sequestration had been illegally obtained because the contracts were not leases, but were actually conditional sales, so that plaintiff had no lessor’s privilege to assert.

After a hearing the trial court rendered judgment dismissing the motion to dissolve and denying damages. Defendants immediately applied for a new trial, which was granted on reargument only. Almost a year later (during which period there were ongoing settlement negotiations) the court rendered an order dismissing the application for new trial.

Defendants then applied to this court for supervisory writs, which were granted.

I

Plaintiff first contends that when defendants failed to appeal, the judgment of the trial court became definitive and acquired the authority of the thing adjudged, so that this court now has no jurisdictional power and authority to reverse or modify that judgment.

The original judgment of the trial court, which dismissed the motion to dissolve the sequestration, was set aside and vacated when a new trial was granted. C.C.P. art. 1971; Larose v. Naquin, 145 La. 1025, 83 So. 230 (1919); La Frenz v. La Raw, 21 So.2d 71 (La.App. 2nd Cir. 1945). Granting of a new trial, of course, contemplates rendition of a new judgment.

In this case, however, no new judgment was ever rendered, nor was the original judgment ever reinstated. Accordingly, there is no judgment in effect, from which an appeal could have been taken, and we do not reach the issue of whether it was necessary to appeal from a judgment refusing to dissolve a writ of sequestration in order, to keep the judgment from acquiring the authority of the thing adjudged.

II

We granted supervisory writs because there appeared to be palpable error, at least as to one contract, in the trial court’s ruling that the contracts were not conditional sales. After review of the record we have concluded all four of the contracts still in dispute constituted conditional sales. A detailed factual analysis is appropriate.

Plaintiff contracted with St. Charles Ready Mix, Inc. (SCRM) in two contracts involving six trucks and with Ready Mix Companies, Inc. (RMC) in seven contracts involving 16 trucks. A separate suit was filed against each defendant, and after consolidation Davis Industries, Inc. (DI) intervened, asserting that it had purchased the trucks and owned them at the time of seizure.

At trial defendants attempted to show there were two types of contracts. The first group, consisting of five RMC contracts (12 trucks) and called the F & M Bank contracts, were conceded by defendants to be leases, so that plaintiff was un-disputedly entitled to possession of these 12 trucks. The second group, consisting of two RMC contracts (four trucks) and two SCRM contracts (six trucks) and called the CIT contracts, were asserted to be conditional sales. These contracts were executed on printed form lease agreements, but defendants contended that at the time of execution plaintiff simultaneously agreed to transfer title upon completion of all lease payments for the additional consideration of only $1.00. A considerable amount of the extensive evidence was directed at this factual contention.

Edson Davis, president of both SCRM and RMC, testified: When he bought the ten trucks under the four CIT contracts, the seller (a corporation of which plaintiff is a subsidiary) agreed title would be transferred after the last contract payment, and plaintiff handled the financing. He put up a cash down payment of $65,000.00 for the four contracts. (There was no down payment for the 12 trucks leased under the F & M Bank contracts in 1972.) When he fell behind on the payments toward the end of the term of the four-year contracts, he sought to pay off the small balances due on the ten trucks by mortgaging them with another lender on the basis of the substantial equity, but he needed to obtain title to do so. Marvin Reeves, plaintiff’s collection manager, stated his belief that these contracts were not subject to a purchase option, but after checking confirmed that defendant had been granted an option to purchase. (Davis’ wife verified the confirmation in her presence.) However, Stephen Zeligson, plaintiff’s president, refused to surrender titles to the ten trucks, stating the option had been lost because defendants had not complied with the terms of the agreement. He (Davis) then refused to make further payments, and these suits followed.

Reeves (the collection manager) recalled the conversations with Davis and admitted he had confirmed to Davis that the four contracts were subject to purchase options “as best as I could determine”. Zeligson (the president) testified that he had no recollection of the original transaction, but had found one written purchase option (covering one contract and four trucks) in his files. He pointed out, however, that the purchase options, if granted, were contingent upon the total amount having been paid in accordance with the contract terms and the customer’s having “complied with each and every provision of the lease”. He further stated that while his company normally only leased equipment, it would enter into a “time purchase agreement” if the customer specifically requested this, but he could not tell if there was such a request in this case without checking the files. On cross examination he explained that the down payment (called advance rental payment in the printed form) was often required in order to make a transaction financially feasible when investigation showed the customer was a credit risk. He could not explain why no advance rental payment was required in the F & M Bank contracts, but suggested that the customer’s credit rating may have improved between 1971 and 1972.

The evidence compels the conclusion that at the time the CIT contracts were struck, the parties intended SCRM and RMC would have an option to purchase the trucks for a nominal price when the contract amount was paid. This intention was indisputably shown by the written agreement supplemental to one contract. No one specifically denied Davis’ testimony as to the other three contracts, and indeed plaintiff’s president’s testimony indicated he refused to deliver title upon payment primarily because defendants had failed to comply with the contract terms. Furthermore, the fact of the required down payment (not required in the admitted leases) indicates that all of the CIT contracts were the same and that these contracts were different from the F & M Bank contracts, which concededly had no option to purchase.

Ill

There are many factors to be considered in determining whether a contract is a valid lease-purchase agreement or a prohibited sale with reservation of title (common law conditional sale). Lee Constr. Co. v. L. M. Ray Constr. Corp., 219 La. 246, 52 So.2d 841 (1951). In the present case the fact that the total amount of lease payments was determined by reference to the value of the trucks, plus interest, is persuasive, but is not determinative of the issue. The fact that substantial down payments were required for these contracts, while none were required for those contracts conceded to be leases, is similarly persuasive. However, the determinative fact is that from the inception of the transaction defendants were bound to pay the full amount of payments (constituting the value of the trucks, plus financing charges) and then, without further consideration, were granted the “option” to purchase the trucks for only $1.00. Such an “option” indicates that the parties always intended a sale and that the purpose of this form of contract was to reserve title in the seller until payment of the purchase price. Such an agreement is a disguised conditional sale and will be regarded as a sale from the inception of the transaction. Pastorek v. Lanier Systems Co., 249 So.2d 224 (La.App. 4th Cir. 1971).

Finally, since each transaction must be regarded as a sale from its inception, plaintiff misses the point when it argues that breach of the contracts by defendants’ failure to make payments timely rendered the option inoperative. The option, agreed upon contemporaneously with the execution of the lease, makes the entire transaction a sale from the beginning, and breach of the contract terms does not change the transaction into one of lease, but rather merely gives the seller a cause of action to sue on the overdue debt arising from the sale.

Since there was no lease, there was no lessor’s privilege, and the writ of sequestration based on a lessor’s privilege must be dissolved. Because the sequestration was issued as a pre-judgment seizure in a suit on defendants’ indebtedness, the matter will be remanded for trial of the principal demand for a money judgment in the amount of the indebtedness.

IV

The trial court found that plaintiff had failed to prove any damages.

Of the ten trucks at issue one was never seized, six were released on the afternoon of the seizure, and two more were released two days later. The evidence showed that the number of yards of concrete delivered and the number of trucks used for delivery was not significantly different the two days following seizure than on any average day in that general period of time. Furthermore, there was some suggestion that the orders scheduled for delivery on the day of seizure were or could have been rescheduled shortly thereafter.

While there was considerable evidence from which a contrary conclusion could have been drawn, we cannot say a conclusion that defendants did not sustain any significant damages from the seizure was manifestly erroneous on this record.

It is therefore ordered that the trial court enter judgment granting the motion to dissolve the writ of sequestration based on a lessor’s privilege and denying the demand for damages. The matter is remanded for further proceedings on the principal demand. Costs will be assessed upon disposition of the entire matter.

ORDER ISSUED, REMANDED.

      . The granting of a new trial, even when limited to reargument, sets aside the original judgment. The fact that the new trial was granted for reargument only simply meant that no additional evidence could be adduced. C.C.P. art. 1978.

      . The judgment rendered subsequent to the granting of a new trial stated the court’s conclusion that the original judgment “should remain undisturbed” (although it had already been upset by the granting of a new trial), but the decree simply dismissed the motion for new trial.

      . It appears to be settled that a judgment granting or denying damages for wrongful seizure is a final judgment which acquires the authority of the thing adjudged unless timely appealed. See Talley v. Bradley, 177 So.2d 624 (La.App. 3rd Cir. 1965), awarding damages; Smith v. Utility & Maintenance Contractors of America, Inc., 301 So.2d 906 (La.App. 2nd Cir. 1974), denying damages.
      Whether a judgment refusing to dissolve a writ of sequestration on the ground that the asserted privilege did not exist is conclusive of the validity of the privilege is an interesting issue which would have been presented if a valid judgment refusing the dissolution had been rendered after the new trial. See Stahlman Lumber Co.-Div. of Staco Mfg. Co. v. Ferrill, 320 So.2d 331 (La.App. 3rd Cir. 1975), which reaffirmed the jurisprudence that a judgment refusing a motion to dissolve a seizure, when there is no demand for damages, is an interlocutory non-appealable judgment, while conceding that a judgment refusing a demand for damages in connection with such a motion is a final judgment on the right to damages.

      ‘ Plaintiff argues that supervisory jurisdiction is properly exercised only when the relator shows irreparable injury.
      This court has plenary power to exercise supervisory jurisdiction at any time. Prior to this application for supervisory writs, this court had exercised supervisory jurisdiction and had issued a judgment in these consolidated cases, reversing an increase in the amount of the bond, and a rehearing application was pending from that judgment. When the present application was filed, it became apparent that the visceral issue in both writs (and in the entire litigation) is whether the contracts were leases or conditional sales. Accordingly, this court granted the writ in order to decide that issue, which will be determinative of the course of the litigation.

      . For purposes of this discussion the various corporations will be treated without differentiation and will be referred to as defendants.

      . We would prefer to terminate the litigation by rendering a money judgment, leaving the parties in a position to simply pay the amount due or to execute on the money judgment. However, the sequestration and the motion to dissolve were ancillary to the principal demand for a money judgment, and while there appears to be no substantial dispute on the principal demand, issue has never been joined. We therefore reluctantly remand the matter, having decided the visceral issue of whether the transaction was one of sale or lease.

      . Generally, supervisory jurisdiction would not be exercised solely to review the award or denial of damages for wrongful seizure, since there is ordinarily an adequate remedy by appeal. However, since supervisory writs were granted for other purposes, since this judgment as a practical matter settles the litigation (the amount of indebtedness being virtually conceded), and since the record is complete on the issue of damages, judicial efficiency dictates that this issue also be adjudicated.


source: Caselaw Access Project

author:
STOULIG, Judge. LEMMON, Judge,
      REDMANN, Judge, BEER, Judge, BEER, Judge,

license: Public Domain

text:
    Andree DiVINCENTI v. Patricia K. DESFORGES et al.
    No. 9823.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied July 12, 1979.

      Pitard, Pitard & Porobil, Robert F. Pi-tard, New Orleans, for plaintiff-appellee.
    Ronald L. Ronzello, Metairie, for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, STOULIG and BEER, JJ.
   STOULIG, Judge.

Defendants, Patricia Desforges and her . liability insurer, Firemen’s Insurance Co. of Newark, New Jersey, have appealed a judgment awarding plaintiff, Andree DiVincen-ti, $12,500 damages she incurred as the result of an accident of April 16,1976. At the time of the accident, plaintiff was a guest passenger in a vehicle driven by Patricia Desforges that rear-ended another vehicle. Liability was stipulated; therefore, the only question before the trial court was what damages plaintiff sustained.

The trial court concluded plaintiff suffered “ * * * a moderate to severe lum-bosacral strain which was superimposed upon and further aggravated a pre-existing degenerative disc condition (at L-5-S-1).”

The medical testimony supports this conclusion. Dr. John Jackson, a neurological surgeon, diagnosed a disc condition and his testimony, together with that of Dr. Roy Clay, her treating physician, are sufficient to support her claim that the automobile accident caused a severe aggravation of a back injury from which she was almost asymptomatic when she was reinjured as a guest passenger.

Appellants argue appellee exaggerated the extent of her injury, and the fact that she took an automobile trip to Mexico in August 1976 establishes plaintiff was not suffering the excruciating pain which she claims stemmed from the April injury. When questioned on this point, Dr. Jackson said that an automobile trip of this nature would not be painful in her condition provided she traveled in a reclining position. Plaintiff testified that she made the trip propped on pillows on the back seat of a large passenger car. It is apparent from both medical witnesses’ testimony that they did not question the sincerity of her complaints of pain;

With respect to special damages, appellants argue plaintiff failed to establish her lost wages by a preponderance of the evidence. Prior to her accident, plaintiff had been employed by defendant Patricia Des-forges to manage a dress shop, and both testified that because of her back pain the hours appellee worked diminished after the accident. From the testimony it is apparent that plaintiff’s time cards could have been produced to establish the exact amount of lost wages. Although Ms. Des-forges, after testifying, stated she would bring the records to court later that day, they were never produced. She stated plaintiff told her to forget the records.

According to plaintiff she had worked for $650 per month at the Lazy Bug shop and even before the accident, this was changed to an hourly rate. Had the records been produced, it would appear a judgment for the lost wages together with the general damages should have been significantly higher. In lumping together both general and special damages in the $12,500 award, we cannot say the trial court abused its discretion because the record clearly establishes there actually was a wage loss, and the trial judge found as a fact plaintiff suffered a painful back injury as a result of the accident.

The principle of appellate review enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), as further defined in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), states the basic premise we follow in reviewing a judgment based on factual conclusions, namely, credibility findings supported by the record should not be disturbed on appeal. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), further stresses that quantum amendments on the appellate level are limited to cases where the trial court abuses the “much discretion” vested in it by C.C. art. 1934.

The award of $12,500 is reasonable in this case. That plaintiff had a pre-exist-ing back injury is of no moment, because the medical evidence shows her problem was almost in remission when the accident occurred. Immediately after this her symp-tomatology became acute. Her treating physician testified the accident was the cause of the re-injury, and the neurosurgeon affirmed the type of trauma she suffered could produce these symptoms. In Taylor v. Rome, 303 So.2d 844 (La.App. 1st Cir. 1974), the court noted that the tort-fea-sor takes the victim as he finds him and a pre-existing injury will not bar recovery. Once plaintiff establishes the trauma of the accident activated or aggravated the preexisting ailment, she is entitled to damages for the re-injury.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

LEMMON, J., concurs with written reasons.

REDMANN, J., dissents with written reasons.

BEER, J., dissents with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

The award is clearly within the trial court’s range of discretion if the evidence supports the court’s factual determination that the April, 1976 accident aggravated the pre-existing condition.

Dr. Clay’s testimony at trial strongly supports this finding. Although the hospital (at which Dr. Clay is on the full-time staff) had lost plaintiff’s medical records, he testified that he began treating her in January, 1976 for complaints of back tenderness after she had lifted some boxes; that by March she “was considerably improved” although not completely asymptomatic; and that after the April 16, 1976 automobile accident she “immediately got worse” and thereafter “showed no improvement at all” until he referred her to the neurosurgeon who diagnosed a bulged disc in October, 1976. He further stated, upon questioning as to the significant legal issue of causation, that he remembered the worsening after the April accident because (1) just the week before another patient who was “getting better” also had an accidental setback and (2) he referred plaintiff to an orthopedist for the first time after the April accident.

Dr. Clay’s strong testimony on the issue of causation is somewhat weakened by his letter of referral to the neurosurgeon, in that the letter does not mention a second accident. However, while the letter is detailed as to the initial history and examination, it described the course of treatment thereafter only in broad terms. I would therefore decline to infer from the doctor’s failure to mention the accident in the letter that he falsified his trial testimony, which convincingly supports a finding of causation.

Dr. Clay’s letter was not discovered by defendants’ counsel until the neurosurgeon’s deposition, which was taken after the close of evidence. Defendants then filed a motion to reopen the case in order to have an opportunity to confront Dr. Clay with this letter. Since at trial Dr. Clay did not have any notes and testified only from memory, it would have been reasonable to grant the motion in fairness to defendants. However, in view of Dr. Clay’s strong testimony and of the fact that his letter was before the trial judge when he considered the motion to reopen, I cannot say that the trial judge acted so unreasonably in denying the motion as to constitute an abuse of discretion.

REDMANN, Judge,

dissenting.

The impact was light when defendants’ insured automobile rear-ended an old pickup truck, knocking down one end of the truck’s bumper (apparently already loose, because its owner tied it up with a piece of rope and, plaintiff says, told defendant driver to forget it). The only evidence that supports plaintiff’s claim that the accident exacerbated her pre-existing back problem was the testimony of Dr. Roy G. Clay.

Dr. Clay testified that his medical records on plaintiff had been lost at the United States Public Health Service Hospital, but that he remembered that, although he had been treating her back problem since January 1976, she had never had the objective sign of muscle spasm until after the April 1976 automobile accident. The February 14, 1978 trial was continued to allow plaintiff to take the deposition of Dr. John D. Jackson, a neurosurgeon prevented by emergency from testifying at the trial. Dr. Jackson’s deposition was taken March 9, and on that date Dr. Jackson produced from his records a letter from Dr. Clay written October 5, 1976 to request consultation on plaintiff.

Dr. Clay’s October 1976 letter strongly suggests that in October 1976 Dr. Clay attributed no significance to the April 1976 accident and did not find muscle spasm after that accident: that plaintiff’s back pains were unchanged since January 1976. The two-page single-spaced letter gives a proliferation of details of medical history and treatment, including two orthopedic consultations after February and then two instances of injecting a tender area with xylocaine and hydrocortisone. The letter notes that the reinjection “caused an exacerbation of her pain” and then notes August electromyelograms with no reference to anything in April (unless the consultations or injections then occurred). The letter mentions a box-lifting incident at the onset but never mentions the April automobile accident or any “exacerbation” arising because of such an incident as part of a medical history. Having earlier noted “no muscle spasm” on the first visit, the letter never mentions any later muscle spasm, although it lists all laboratory test data. The letter concludes:

So in summary, we have a patient who has had persistent back pains since January of 1976 with some occasional radiation into the right leg but no specific neurological findings. She has been seen by two different orthopedic consultants who have found no evidence of mechanical back disease. She has been checked by her gynecologist who has found no evidence of a pelvic etiology for the pain. She has continued to have difficulty in spite of a conservative regimen. I have told the patient that I am unable to make a firm diagnosis and that I am unable to find a neurological cause for her disease but felt that we should obtain a neurological consultation.

In the absence of an explanation of the prior inconsistent statements expressed and implied in that letter, Dr. Clay’s medical testimony from memory, after reciting the loss of his records, cannot fairly be accepted as corroborating anything other than that plaintiff did mention the accident to him (although his letter’s silence on the accident indicates that it was of no significance to Dr. Clay).

There is no explanation of Dr. Clay’s letter because plaintiff chose not to give any, despite her apparent recognition during pr. Jackson’s deposition of the damaging nature of the letter. It would nevertheless be fair to remand to allow plaintiff, even now, to offer Dr. Clay’s explanation of the letter. That should be the disposition of this appeal.

(Alternatively, accepting that plaintiff did experience enough discomfort from the April accident to cause her to mention it to her doctor, but noting that the doctor deemed it so inconsequential as not to merit mention in a detailed history intended to explain the need for a neurological consultation, we should conclude that plaintiff’s testimony of serious injury from the automobile accident is inconsistent with her treating physician’s ignoring the accident, and is at best uncorroborated except to the extent that the doctor’s remembering but ignoring, the accident shows that the accident must have caused but insignificant and therefore minimal and transitory pain. We could on this basis reduce to $500, the maximum allowable under La.C.C. 2277 in the absence of any corroborative evidence.)

BEER, Judge,

dissenting.

DiVincenti’s suit for damages in the amount of $565,000.00 was predicated on the contention that a rear-end collision activated or aggravated a preexisting back ailment.

She seeks to support her claim by the expert medical testimony of Drs. Clay and Jackson. Dr. Clay testified at the trial, and Dr. Jackson’s deposition was taken after the trial pursuant to agreement of counsel and, thereafter, submitted to the trial judge.

My review of the above, coupled with a review of DiVincenti’s testimony at the trial and at a pretrial deposition which forms part of the record before us, convinces me that the trial court was manifestly in error in its award of $12,500.00.

I find little support in this record for the award of any specific amount of special damages and even less for a general damage award at or near the amount of the judgment.

It will serve no useful purpose for me to elaborate beyond this observation: I believe that DiVincenti’s claims are grossly exaggerated. I believe the medical testimony is inconsistent, inconclusive and, in some instances, contradictory.

Accordingly, I respectfully dissent.

BEER, Judge,

dissenting from the denial of the application for rehearing.

I would grant a rehearing for the purpose of considering a marked reduction in the quantum award. I believe that the award is excessive and unsupported by credible evidence. In my view, the result reached in this case flies in the face of the basic premise that the plaintiff has the burden of proof.

      . Plaintiffs testimony (although her complaints are exaggerated when compared to the neurosurgeon’s comments) also supports this finding.


author: BEER, Judge.

text:
    Leonard ROGERS v. WEISER DETECTIVES AND SECURITY SERVICES, INC. and Prestige Casualty Company.
    No. 10138.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 1979.
    Rehearing Denied July 12, 1979.

      Young, McMahon & Levert, Robert J. Young, Jr., New Orleans, for defendants-appellants.
    Robert Morías Schoenfeld, New Orleans, for plaintiff-appellee.
    Before REDMANN, BEER and GARRISON, JJ.
   BEER, Judge.

Appellee, Leonard Rogers, instituted this civil action for damages against the employer (and its insurer) of McAmis White, a security guard assigned to the W. T. Grant store on Canal Street. The jury returned a unanimous verdict in his favor in the amount of $24,453.75. Appellants have sus-pensively appealed.

The incident at issue occurred on the afternoon of December 4, 1975, at which time the store was advertising a “going out of business” sale. Rogers testified that he entered through an opened doorway, walked a short distance into the store, found nothing of interest and, intending to leave, walked back to the door through which he had entered. He did not see any signs directing traffic. White was standing by the opened door. Rogers testified that White told him he could not go out that way and pointed to the back of the store, directing him to go back into the store and exit by way of the back door. Rogers testified that he already was walking out by way of the front door and that he glanced around quickly and walked out. He carried no packages. He explained that his back was to White and that either his back or his left shoulder may have brushed against White. After walking a short distance past the doorway, two security guards grabbed him by the arms and pulled him back into the store. They held his arms behind his back so that he could not move. He was then taken, against his will, up a flight of stairs inside the store to the office. He testified that he, thereupon, asked the store manager to call the police, who, when they arrived, arrested him for assaulting the security guard. He was released from central lockup about one hour later and returned home. He was dazed and upset and was experiencing pain in his arm and shoulder.

White testified that it was his duty to check customers as they left the store. He understood his assignment to include prohibiting people from exiting via the “entrance” door. He testified that upon upon being advised to exit via the rear door, Rogers grabbed him by the collar with his (Rogers’) right hand. However, Rogers and his wife testified that he had only limited use of his right hand. White admitted that he did, thereafter, force Rogers back into the store and upstairs to the office, holding his (Rogers’) hands behind his back.

White’s version of what took place was corroborated by William Stewart, another security guard, who witnessed the incident. He explained that the doors were marked with signs (entrance/exit) in order to maintain the flow of traffic but acknowledged that it was not unusual to raise the ropes between the door and the registers to let an elderly person out. According to Stewart, White requested that Rogers use the other door and Rogers replied that he did not want to and then shoved White.

The evidence, although conflicting, constitutes an acceptable basis for the jury’s conclusion that this 70-year-old plaintiff had an afflicted right hand and was not the aggressor.

Even so, appellants further contend that the general damage award is so excessive as to be manifestly erroneous. The award is apparently based upon special damages of $1,953.75 and general damages of $22,500.

Rogers was seen by Dr. Harold Stokes, an orthopedist, on December 6th. He recommended bed rest for his arm and shoulder pain. On December 16th, Rogers experienced a fall due to dizziness. Also, he continued to be affected by shortness of breath.

Dr. Murrel Kaplan, an expert internist, testified that he had attended Rogers since November of 1974. He saw Rogers on December 17th, after Rogers called him for an appointment complaining of weakness, fatigue and lightheadedness. Between Rogers’ call for an appointment and the actual appointment itself, Rogers fell as noted above, causing pain to his ribs and chest. Thus, on December 17th, Dr. Kaplan hospitalized Rogers for nine days, primarily for complete bed rest. By the first week of February, 1976, Dr. Kaplan and Dr. Allen Goldman, a cardiologist, concluded that Rogers had gotten over the upsetting effects of the incident although both physicians were of the view that the experience itself was sufficient to have caused the need for the above noted hospitalization, notwithstanding the fall on December 16th.

We believe that the general damage award is so excessive as to be an abuse of discretion. Accordingly, following Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and its progeny, we limit our modification so as to decrease the award only to an amount that is the maximum which would not have constituted such abuse and, accordingly, set the award at $11,953.75. Thus amended, the judgment is affirmed. Each party is to bear its own costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.


author: REDMANN, Judge.

text:
    Chris BARCELONA v. HIGHWAY EXPRESS, INC., et al.
    No. 9883.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 1979.
    Rehearing Denied July 12, 1979.

      Trudy H. Oppenheim, New Orleans, for plaintiff.
    James C. Murphy, Jr., Murphy & Simon, New Orleans, for defendants Highway Express, Inc. and Michael E. West.
    F. A. Courtenay, Jr., Courtenay, Forstall & Grace, New Orleans, for defendant Edward Drewes.
    Before REDMANN, LEMMON and GARRISON, JJ.
   REDMANN, Judge.

A corporate trucking company and its president appeal from a judgment holding them liable for plaintiff employee’s crushed finger, fractured leg and other injuries resulting from a crate’s falling over upon him. Plaintiff also appeals from the judgment’s dismissal of his demand against the night dispatcher-supervisor who was in charge of the freight terminal at the time of the accident.

The corporate employer had previously been dismissed from the suit by final judgment based on the exclusivity of Workmen’s Compensation, La.R.S. 23:1032. The employer was not again cited and served with process or otherwise rejoined into plaintiff’s suit. The court thus had no jurisdiction, La.C.C.P. 6, to render a judgment against the corporation. We therefore annul as to the corporation.

As to the corporate president we reverse on a holding that plaintiff did not prove that his injuries were caused by any breach by the president of a personal duty to attend to the safety of this interstate corporation’s work activities; see Canter v. Koehring Co., La.1973, 283 So.2d 716.

The essential facts of the accident are that a 3,000-pound, flat crate of plate glass, standing on end lengthwise in a truck trailer, was lifted an inch or two on one end by a fork-lift which was to drag it out of the truck onto a dock while four workers attempted to keep it upright. Plaintiff testifies that the crate began to “wobble” and, rightly or wrongly believing that his strength was not equal to the task of keeping the crate upright, plaintiff and perhaps the other worker on his side let the crate go as they sought to escape its fall. Unable to escape from the trailer, plaintiff was struck by the falling crate (as was the other worker on that side of the crate). The injured co-worker testified by deposition that the fork-lift was unable to “get traction”; that its smooth wheels slipped on the surface wet from rain until they were smoking, without budging the crate; that finally the engine was raced and the forklift shot back, “throwing” the crate onto him and plaintiff (and also pushing the metal gap-bridging plate forward).

Although plaintiff and the injured coworker testified that they were instructed by defendant dispatcher-supervisor to move the crate as they did, the supervisor testified that he gave no instructions and was not at the scene but inside the office. The trial judge did not cast the supervisor in judgment. We are therefore forced to conclude that the trial judge disbelieved plaintiff’s and the injured co-worker’s testimony on that point, and we are not in a position to reject the trial court’s reasonable evaluations of credibility; Canter v. Koehring, supra. We therefore affirm the trial court’s rejection of plaintiff’s demand against that dispatcher-supervisor.

The evidence is that defendant corporation operates its trucking business in (at least) two states and that the president’s office is in Mississippi. The president testified that the corporation has a vice-president in charge of safety, who in turn testified that each terminal manager was responsible for the safe operation of his own terminal. The trial judge may have disbelieved the defense witnesses, but the absence of credible defense evidence does not constitute proof of plaintiffs case: rejection of the corporate president’s and other officers’ testimony of assignment of responsibilities does not constitute evidence that the president did not assign responsibilities to competent subordinates.

It is plaintiff’s burden to prove his case, and he does not do so by establishing that his corporate employer has a president. The law does not supply an inference that the president of an interstate corporation is personally responsible for every injury that occurs to the corporate employees unless he exculpates himself, leaving it to the credibility evaluation of a trier of fact to believe him or not when he testifies as to the corporate chain of command and delegation of responsibilities.

Plaintiff’s evidence can be accepted as proving that this corporate president knew of certain defects in the temporary substitute terminal the corporation rented when its own was destroyed shortly before construction of a new one was to be completed. Those defects included that at one edge of the loading dock a large chip or chunk of concrete was missing; the forklift had smooth tires (although the implication of this circumstance was not made clear); the metal plates used to bridge gaps between dock and truck bed did not have devices to anchor them firmly in place; the docks got wet from rain and at times from high humidity of the neighborhood. None of those defects, however, was proved to be a cause-in-fact of this accident, and therefore defendant president’s failure to remedy them was not a cause-in-fact.

Affirmed in part, annulled in part and reversed in part.


author: DOMENGEAUX, Judge.

text:
    TRAILWOOD FOREST-CALCASIEU, LTD., et al., Plaintiffs-Appellants, v. Victor E. COURSEY, Jr., et al., Defendants-Appellees.
    No. 7109.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    Rehearing Denied July 11, 1979.
    James Farrier, Baton Rouge, Thomas P. Quirk, Lake Charles, for plaintiffs-appellants.
    Scofield, Bergstedt & Gerard, Robert L. Hackett, Jones, Patín, Tete, Nolen & Han-chey by Gregory P. Massey, Lake Charles, Robert A. Hawthorne, Jr., Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, WATSON and SWIFT, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

We issued an order, ex proprio motu, directed to the plaintiff-appellant, to show cause why its appeal should not be dismissed because the record lodged with us reflects that the appeal was not timely taken. The appellant has answered the rule.

We dismiss the appeal.

This is a suit for damages. Trial on this matter was had on March 27th, 28th and 29th, and the case was taken under advisement. Written reasons for judgment were rendered on October 10, 1978, and a formal judgment in accord therewith was read, rendered and signed on November 22, 1978. On November 27,1978, the deputy clerk for Calcasieu Parish addressed a letter to all counsel of record in this case informing them that a judgment had been rendered in the above captioned case on November 22, 1978. A copy of this letter is set forth on following page.

ACTON HILLEBRANDT CLERK OF COURT AND EX-OFFICIO RECORDER FOURTEENTH JUDICIAL DISTRICT OF LOUISIANA PARISH OF CALCASIEU LAKE CHARLES, LA. 70601 November 27, 1978

Mr. Robert L. Hackett Attorney at Law P. 0. Box 1136

Lake Charles, Louisiana 70601 Mr. James Farrier Attorney at Law 1990 Wooddale Blvd. Baton Rouge, Louisiana 70806

Re: Trailwood Forest-Caleasieu Ltd., and/or West Cal. Land, Inc. Vs. No. 76-3863 Lee J. Marsalise, et al.

Gentlemen:

In accordance with Article 1913 of the Louisiana Code of Civil Procedure, you are hereby notified that Judgment in the above numbered and entitled matter was read and signed on the 21 day of November . 197 8_.

Yours very truly, ACTON HILLEBRANDT, CLERK

/s/ Sybil B. Lemlev_ Deputy Clerk

On February 7, 1979 the plaintiff-appellant moved for and was granted a devolu-tive appeal to this court, returnable on April 9, 1979. The record was lodged with this court March 20, 1979.

The appellant concedes that if the letter mailed by the clerk on November 27th complied with the statute, then its appeal taken on February 7, 1979 was beyond the delays provided for new trial under LSA-C.C.P. Article 1974 and the subsequent 60-days delay provided for taking a devolutive appeal under LSA-C.C.P. Article 2087. Counsel for the appellant argues, however, that the letter from the deputy clerk notifying the parties of the rendition of the final judgment does not satisfy that portion of LSA-C.C.P. Article 1913 which provides, in pertinent part, as follows:

“The Clerk shall file a certificate in the record showing the date on which, and the counsel to whom, notice of the signing of judgment was mailed.” “(Italics ours)”

Particular emphasis is attached to the word “certificate” and appellant urges that a letter addressed to all parties notifying them of the signing of the judgment does not satisfy the requirements of certification by the Clerk of Court. Cited as authority for this proposition is this court’s case of Bielkiewicz v. Insurance Company of North America, 201 So.2d 130 (3rd La. App., 1967).

The facts of this case are strikingly similar to that presented to our brother of the First Circuit in Great American Insurance Companies v. East, 264 So.2d 761 (1st Cir., La.App., 1972). There the court was faced with the problem of whether or not the reception by the appellant’s attorney of a copy of a letter which was addressed to appellee’s counsel, which clearly indicated that duplicate copies had been sent to all counsel of record, and which stated that judgment had been rendered and signed, satisfied the requirement of certification by the Clerk of Court. The court held:

“Counsel does not argue that he did not receive this letter or that it failed to contain a certified copy of the judgment. The issue then is whether or not a copy of a letter addressed to one counsel, clearly indicating duplicate copies to all counsel of record, satisfies the requirement of certification. We hold that it does. C.C.P. Article 1913 does not require that the notice of judgment be couched in any particular form. If the record contains a copy of a letter which clearly reflects that all counsel were duly notified, the requirements of notification and certification are satisfied. The facts in Biel-kiewicz are clearly distinguishable from those in the case at bar. Here, we have a dated letter in the record, Bielkiewicz did not. In Bielkiewicz counsel argued that he did not receive the notice of the signing of judgment, here counsel does not. In Bielkiewicz, the question was whether or not a letter was mailed on one day or the next. The Clerk had no independent recollection but stated that notices were ‘customarily’ mailed on the date they were signed. Our brethren of the Third Circuit properly resolved the doubt in favor of appellant.”

We are in complete agreement with our brethren of the First Circuit and hold that the letter sent by the deputy clerk in this case fully fulfills the requirements of LSA-C.C.P. Article 1913.

The appellant next contends, that under the recent amendment of LSA-C. C.P. Article 2088, that the jurisdiction of the Court of Appeal attaches immediately upon the granting of an order of appeal in the case of a devolutive appeal. While this principle is uncontestable, the judgment of the trial court became final upon the failure of the plaintiff to timely move for an appeal and the subsequent signing of an order of appeal by the trial court cannot transfer jurisdiction upon this court.

For the reasons assigned, the appeal is hereby dismissed and all costs of this appeal are assessed to the plaintiff-appellant.

APPEAL DISMISSED.


author: CHIASSON, Judge.

text:
    Jo Ann Spears JAMES, Plaintiff and Appellant, v. June Austin SPEARS, Defendant and Appellee.
    No. 12634.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      L. B. Ponder, Jr., Amite, for plaintiff and appellant.
    Bruce E. Simpson, Kentwood, for defendant and appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

On November 19, 1971, June Spears was granted a divorce from his wife, Jo Ann Spears. That judgment awarded permanent custody of the two minor children to the mother and child support in the amount of $150 per month. By court order on March 11, 1975, June Spears, the father, was granted temporary custody of the minor children. On December 5, 1975, a judgment was rendered maintaining custody in the father until June 15, 1976, at which time he was to deliver the two minor children to the mother in Kentwood, Louisiana, and ordering the father, as of July 1, 1976, to pay child support in the amount of $150 per month thereafter. The record reveals that the father did not return the children on the date specified by the court order of December 5, 1975.

On July 17, 1978, the father, upon his return to this state, filed a petition for custody of the two minor children. On July 18, 1978, the mother filed a motion for contempt, for a judgment to make back support executory, for attorney’s fees and for restoration of custody of the children. Both of these proceedings, by consent of the parties, were consolidated for hearing on August 10, 1978.

After the taking of evidence and rendition of judgment, but before the signing of judgment, Jo Ann Spears filed on August 23, 1978 a motion to make support judgment executory and for attorney’s fees. In this pleading it was alleged that due to a typographical error, the total amount of arrearages in the original pleading had not been applied for in a specific amount. This pleading prayed that total arrearages be made executory in the amount of $3,750 and sought a specific amount as attorney’s fees in the sum of $1,275. A rule to show cause was issued for a hearing on this pleading on September 8, 1978.

On September 5, 1978, judgment was signed granting permanent custody of the minor children to June Spears and visitation rights to Jo Ann Spears; awarding past due child support in the amount of $2,025, plus 7 per cent interest from date of judicial demand; terminating further child support payments; rejecting the demand for attorney’s fees; and rejecting the demand that June Spears be held in contempt of the December 5, 1975 court order.

On September 8, 1978, Jo Ann Spears filed a motion for new trial or rehearing on the issues on custody, support arrearages, attorney’s fees and contempt. This motion was assigned for a hearing on September 22, 1978.

On September 29, 1978, a judgment was rendered denying an executory judgment and denying attorney’s fees. The motion for new trial was also denied.

Jo Ann Spears appealed the judgment of the trial court seeking a reversal of the trial court’s judgment on every issue.

At the outset, we find the judgment of the trial court to be as follows: Custody of the two minor children was awarded to June Spears with visitation rights granted to Jo Ann Spears; the demand to place June Spears in contempt of court was rejected; and the motion to make child support executory and for attorney’s fees was denied. We believe this to be the judgment because of the procedural posture of the case.

The first pleading filed by Jo Ann Spears, on July 18, 1978, to make child support executory and for attorney’s fees, listed the number of months and the amount per month owed to Jo Ann Spears by court order and asked for a total of $2,025 as the total amount of arrearages to be made ex-ecutory. The second pleading filed by Jo Ann Spears, on August 23, 1978, to make child support executory and for attorney’s fees, specified that a typographical error had been made and that the total amount of arrearages of child support should be $3,750 and asking for attorney’s fees in the specific amount of $1,275.

The trial judge set a hearing date of September 8, 1978 for the August 23, 1978 pleading. Although the trial judge was apparently considering the August 23rd pleading as a separate request for additional amount of arrearages, we find that it was in fact an amended pleading to the July 18, 1978 pleading. We find this to be so for several reasons. First, the August 23rd pleading was filed after a hearing on the issue of arrearages of child support and attorney’s fees had been held and it contained a correction in calculation as to the total amount of arrearages demanded. Second, when the August 23rd pleading was considered, it was stipulated by counsel that testimony would not be taken since it would be repetitive of the testimony taken on August 10, 1978 and the attorneys submitted memorandums concerning the issue of child support arrearages and attorney’s fees. Third, the August 23rd pleading was also considered with Jo Ann Spears’ motion for new trial filed on September 8, 1978, which was in part based on the issue of child support arrearages and attorney’s fees. We are additionally supported in this finding by the judgment of the trial court of September 29, 1978. Having ruled on the issue of child support arrearages and attorney’s fees in the September 5, 1978 judgment, the trial court could not have considered a motion for an additional amount of arrearages due for an identical period of time without granting a partial new trial as to the issue of arrearages of child support and attorney’s fees. We find that the trial court granted a partial new trial as to child support arrearages and attorney’s fees and denied a partial new trial as to the issues of custody and contempt.

If read otherwise, the judgments of September 5 and September 29 are inconsistent in relation to the child support arrearages and attorney’s fees. The September 5th judgment awarded Jo Ann Spears $2,025 child support arrearages and no attorney’s fees. The September 29th judgment denied the motion to make the support judgment executory and denied attorney’s fees. The September 29th judgment made no mention of an amount of money and as written denies any arrearages of child support. Even assuming arguendo that the August 23rd pleading was only for a corrected amount of child support arrearages, the trial judge could not consider this separately without a new trial on this issue or without considering this pleading as purely a means of amending the judgment to correct an error of calculation under La.CCP 1951. The trial judge did not consider this to be a correction of error of calculation in the judgment, but rather, by stipulation of the parties, considered the testimony of August 10 and requested memorandums solely on the issues of child support arrearages and attorney’s fees. In so doing, we find he granted a partial new trial as to the issues of child support arrearages and attorney’s fees.

Jo Ann Spears, appellant, seeks to reverse the trial court’s judgment. There are four issues to be considered: custody, contempt, child support arrearages, and attorney’s fees.

We affirm the award of permanent custody of the minor children to their father, June Spears. Our jurisprudence provides that in cases of change of custody the one seeking the change of custody must establish that not only are the present circumstances harmful to the physical or moral welfare of the children concerned, but also that the party seeking the change of custody, can provide a better and more wholesome atmosphere for the children. Additionally, the determination of the trial judge in child custody matters is entitled to great weight upon appellate review. He is in a better position to evaluate the best interests of the children. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Earnest v. Earnest, 286 So.2d 747 (La.App. 1st Cir. 1973); Lambert v. Lambert, 286 So.2d 390 (La.App. 1st Cir. 1973).

June Spears has had the minor children of the marriage in his custody since March of 1975. They were with their father because of the mental health problems suffered by their mother. Although Jo Ann Spears has made great strides in her mental health problems, we find that the record establishes that June Spears has met his burden and that the trial court’s decision of custody was not an abuse of his discretion. We must note that the issue of custody was not affirmatively briefed in Jo Ann Spears’ appeal.

We affirm the denial of the motion for placing June Spears in contempt of the court order of December 5, 1975. Mover argued that June Spears was in contempt of court for disobeying a lawful judgment of the court. Under La.CCP 224 and our jurisprudence, it must be shown that the alleged offender willfully disobeyed a direct order of the court issued prior to the contempt rule; otherwise he should not be held in contempt. Lambert v. Adams, 347 So.2d 883 (La.App. 3rd Cir. 1977). We find that the record reveals a reasonable factual basis for the finding of the trial court and the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We must reverse the denial of ar-rearages for child support. June Spears was temporarily awarded custody of the minor children by a court order of March 11,1975. But on December 5, 1975, he was ordered to return the children to their mother on June 15, 1976 and to begin paying child support .of $150 per month starting on July 1, 1976. From that judgment until the present proceedings were instituted, he did not come to court seeking the termination of the award of child support by court order. We understand that from June 15, 1976 until the present, the minor children have been in the physical custody of their father, who has supported them in his home. We are also cognizant of the fact that the circumstances of Jo Ann Spears’ mental illness have justified his not returning the children at the time ordered by the court. We cannot overlook the fact that June Spears could have come to the court to change the order of support and he did not do so. Under the jurisprudence as it now stands, “ . . . a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment . . ” and that “(U)ntil modified, therefore, the judgment awarding alimony is a determination of the rights of the parties and has acquired the authority of the thing adjudged.” Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).

We have considered the possibility of a credit to June Spears of the monthly amount of child support for the time the children were in his care, but have found this is not allowed by our jurisprudence. Therefore, we are bound by these decisions and are prohibited from applying equity in the instant case. For these reasons we reverse the trial court and award to Jo Ann Spears the arrearages in child support in the sum of $3,750, calculated at the rate of $150 per month for 25 months representing the period from July 1, 1976 through July 1, 1978, with 7 per cent interest thereon from date of judicial demand until paid.

We affirm the denial of attorney’s fees. The trial court is vested with discretion in determining whether or not attorney’s fees are to be awarded when he renders an executory judgment incorporating the payment of child support arrearages. La.R.S. 9:305. In the instant case, the trial judge originally made executory child support arrearages and did not award attorney’s fees. After a partial new trial as to the question of child support arrearages and attorney’s fees, the trial court again did not award attorney’s fees. Although we reverse the trial judge as to the child support arrearages, we find that he had obviously carefully considered the issue of attorney’s fees and had denied them. Under either judgment, however, it is apparent that the trial court did not find that attorney’s fees were warranted.

The record reveals that the father, because of the mother’s mental health problems, had the physical custody of the children for the time period for which arrear-ages are due and that he has supported them during this time. The father has now been awarded permanent custody of these children and we realize that the payment of arrearages will reduce the resources available to him to support the children. It is ironical that the purpose of child support payments is to provide for the children and in this case the payment of these arrearages will not be utilized for this purpose.

An award of attorney’s fees would further reduce the father’s income, which would not benefit the children whose care is our primary concern. For these reasons we find no abuse of discretion in the trial court’s denial of attorney’s fees.
For the reasons given above, the judgment of the trial court awarding permanent custody of the minor children to June Spears, the denial of the contempt motion, and the denial of attorney’s fees is affirmed. We reverse the trial court only as to the award of child support arrearages.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Mrs. Jo Ann James and against June Austin Spears in the full and true sum of Three Thousand Seven Hundred Fifty and No/100 ($3,750.00) Dollars, with legal interest thereon from date of judicial demand, until paid, and for all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Jo Ann Spears remarried on August 7, 1978, and is now Mrs. Frank T. James. To avoid confusion, we will refer to her as Jo Ann Spears.


text:
    UNITED COMPANIES MORTGAGE AND INVESTMENT OF HAMMOND, INC., v. ESTATE of Cecil McGEE and Eloise Verrett McGee.
    No. 12640.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff.
    Nelson D. Taylor, Baton Rouge, for defendants.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

United Companies Mortgage and Investment of Hammond, Inc. (United) sued Eloise McGee individually and as the adminis-tratrix of the estate of Cecil McGee for the balance due on a promissory note. Cecil McGee had three loans with United which were refinanced on March 28, 1974 and consolidated into one loan in the face amount of $11,998.80. The amount refinanced was $5,830.29 and the finance charges were $6,168.51. An executory proceeding was originally filed by United for the sum of $11,998.80 less a credit of $5,647.20 for rebate of unearned interest and return of the premium on a life insurance policy issued to McGee’s son.

At the time the March 28th note was signed, Cecil McGee was terminally ill and died twelve days after signing the note. He had been ill for some time and the signing took place at his home.

The defendant, Mrs. McGee, obtained a temporary restraining order prohibiting the sale of the property alleging among other things that the transaction giving rise to the claim was in violation of the Louisiana Consumer Credit Law (LCCL). La.R.S. 9:3510, et seq. United amended its original petition and converted to an ordinary proceeding. The defendants answered the amended petition alleging and incorporating their defense of violation of the LCCL which they had specified in their petition for enjoining the sale of the property.

After suit was filed but before trial, United admitted that the credit life insurance on one of the three loans that had been refinanced had not been cancelled pri- or to Cecil McGee’s death and a credit of $3,610.62 was given to the defendants.

The trial court rendered judgment in favor of plaintiff in the amount of $2,740.98 with interest and attorney’s fees. Defendants appeal that judgment.

Appellants attempted in the trial court to prove that if the three loans that were refinanced by the March 28th loan had insurance coverage, then they would have been wholly or partially paid upon the death of Cecil McGee.

If this were true, then appellants argued the March 28th transaction was unconscionable, because if the loans would have been paid off by insurance, Cecil McGee would not have refinanced the three loans with no insurance coverage. Appellants also argued that no explanation was made to Cecil McGee as to what effect refinancing would have on his insurance coverage.

Appellee argued that Cecil McGee was behind in payments on three loans. Since United was concerned about the overdue payments, their agent went to Mr. McGee to discuss with him consolidating the three loans. In fact, United points out that one loan was paid off and the other two were consolidated to reduce the monthly payments in the March 28th loan. United also argued that their agent did not know Cecil McGee was terminally ill; that the history of the three loans that were consolidated was not relevant to the claim of the debt owed on the March 28th transaction; that through discovery they had given appellants all the information requested; and that the testimony revealed they had given all the credits to Cecil McGee on the March 28th transaction to which he was entitled.

At the outset we find that United was in a fiduciary relationship to Cecil McGee as regards the insurance on all of the loan transactions. Mr. Grey and Mr. Clements, United employees, are agents of the United Companies Life Insurance Company. Mr. Clements negotiated the transaction of March 28 with Cecil McGee and negotiated the life insurance coverage on that loan with Cecil and Charlie McGee. Under LSA-C.C. arts. 3016 and 3017 an intermediary who negotiates a transaction between two parties is held to a fiduciary obligation to perform his duties faithfully for both parties. American Bank & Trust Company of Houma v. Deroche, 357 So.2d 1176 (La.App. 1st Cir. 1978).

Mr. Clements acted as an intermediary between the insurance and loan companies and Cecil McGee. As such, he had a duty to explain to Cecil McGee what death and disability insurance coverage Mr. McGee had on the three loans and how refinancing would affect that coverage. In the instant case, we believe his fiduciary obligation also extended to an explanation of the effect of providing life insurance on Charlie McGee (Cecil McGee’s son) to insure coverage on a loan made by Cecil McGee.

The appellants in cross examining Mr. Clements attempted to determine what would have happened to the three loans had they not been refinanced and Mr. McGee had died. Appellee objected to the line of questioning and his objection was sustained. We find the trial court was in error in sustaining that objection. We believe the line of questioning was pertinent and relevant to the appellants’ defense of a violation of the LCCL.

The appellants also sought to elicit evidence concerning the credits, rebates, and payment records on the other two loans which had been refinanced on March 28. The trial judge erroneously sustained plaintiff’s objection to this line of questioning as being irrelevant.

La.R.S. 9:3551 and 9:3516(29) require the appellants to prove that at the time the refinancing contract was entered into it was so onerous, oppressive or one-sided that a reasonable man would not have freely given his consent to such a contract.

Appellants should have been allowed to present facts concerning their defense of a violation of the LCCL so that the trial judge could rule thereon. The questions of appellants were valid to such a defense.

For these reasons, we remand this case to the trial court for further proceedings in conformity with our holdings herein. Costs of this appeal to be paid by appellee. All other costs to await final determination of this case.

REMANDED.

      . La.R.S. 9:3551
      “With respect to a consumer credit transaction, if the court as a matter of law finds the agreement or any clause of the agreement to have been unconscionable at any time it was made the court may refuse to enforce the agreement, or it may enforce the remainder of the agreement without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result; provided, however, for the purposes of this chapter, an agreement, clause, charge or practice expressly permitted by this chapter or any other law or regulation of this state or of the United States or subdivision of either, or an agreement, clause, charge or practice necessarily implied as being permitted by this chapter or any other law or regulation of this state or the United States or any subdivision of either is not unconscionable.”

      . La.R.S. 9:3516(29)
      “ ‘Unconscionable’. A contract or clause is unconscionable when at the time the contract is entered into it is so onerous, oppressive or one-sided that a reasonable man would not have freely given his consent to the contract or clause thereof in question; provided, however, for the purposes of this chapter, an agreement, clause, charge or practice expressly permitted by this chapter or any other law or regulation of this state or of the United States or subdivision of either, or an arrangement, clause, charge or practice necessarily implied as being permitted by this chapter or any other law or regulation of this state or the United States or any subdivision of either is not unconscionable.”


text:
    Guy W. DUPRE, Plaintiff and Appellee, v. The NORTH-WEST INSURANCE COMPANY and Aquatic Equipment and Engineering, Inc., Defendants and Appellants.
    No. 12643.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Writ Refused July 2, 1979.

      Victor J. Versaggi, Patterson, for plaintiff and appellee.
    Roger J. Larue, Jr., Metairie, for defendants and appellants.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

Guy W. Dupre sued his employer, Aquatic Equipment and Engineering, Inc. (Aquatic), and the employer’s insurer, The North-West Insurance Company (North-West), for workmen’s compensation. A judgment was rendered in Mr. Dupre’s favor and the employer and the insurer have taken this appeal. Aquatic and North-West, appellants, urge the following specifications of error:

1. The trial court erred in determining that plaintiff is continuously disabled because the plaintiff did not adduce legally sufficient proof to support his claim.
2. The trial court erred in determining that plaintiff is presently disabled within the meaning of the Louisiana Workmen’s Compensation Act.
3. The court erred in its determination of the wages earned by plaintiff subsequent to the accident. La.R.S. 23:1021.
4. The trial court erred in requiring defendants to pay undetermined and unspecified future medical expenses.
5. The court erred in finding that plaintiff’s anxiety problems were caused by the accident of April 13, 1976.
6. The trial court erred in awarding penalties and attorney’s fees.

We affirm the judgment of the trial court and adopt as our own the trial court’s statement of the case, findings of fact and conclusion of law contained in its reasons for judgment, as follows:

“The plaintiff, Guy W. Dupre, sues as an alleged employee of Aquatic Equipment and Engineering, Inc., suing both defendants, requesting the court to adjudicate that the plaintiff is totally and permanently disabled as contemplated under the Louisiana Workmen’s Compensation Act and, as such, entitled to the maximum rate of compensation allowable for the rest of his natural life together with legal interest from date of judicial demand.

“He also prays for all medical expenses incurred by the plaintiff for his treatment presently and in the future. He seeks an award of damages, penalties and attorney’s fees alleging defendants’ arbitrary and capricious refusal to pay workmen’s compensation benefits.

“The plaintiff seeks recovery of penalties of 12% of the amount of compensation benefits withheld to the date of filing supplemental petition, July 10, 1978 and for all compensation benefits amounts withheld in the future and for reasonable attorney’s fees and costs.

“Evidence was introduced and the trial completed. Considering the law and the evidence, the argument and memorandum of counsel and the court finding that the plaintiff has proved by a preponderance of the evidence the following: On or about April 13,1976, in the State of Louisiana, the plaintiff was employed by Aquatic Equipment and Engineering, Inc. as a material hustler or material foreman and that the nature and extent of such occupation and employment was hazardous within the meaning of the Louisiana Workmen’s Compensation Act; and while plaintiff was so employed and acting within the scope and course of his employment with the defendant employer the plaintiff collided headfirst into a steel beam or pipe protruding across the platform stairway, causing plaintiff personal injuries, pain and suffering and medical expenses and causing him personal injuries to his upper and lower back which rendered the plaintiff to be partially disabled from doing work and causing him to be in need of continuous medical treatment, services and attention and to be presently in need of medical treatment, services and attention.

“The court finds that the plaintiff has proved by a preponderance of the evidence that he suffered injuries to the back of her cervical spine area, causing a ruptured in-tervertebral disc in the C5-6 area, in remedy of which there was surgical discectomy and fusion, rendering him partially disabled from doing labor or work which required jumping, climbing or doing continuous heavy lifting types of jobs, which disability could, with the passage of time, eventually become zero percent functionally disabled. That in the meantime re-training for jobs requiring alternate sitting and standing, alternate walking and some modest lifting (not over 30 pounds) and some modest riding activities were required.

“The court finds that the plaintiff has also proved by a preponderance of the evidence and clearly that on April 13, 1976 he also suffered injury to his lower back and particularly in the lumbar area in the vicinity of the L-5 or S-5 vertebrae, with muscle spasm and lumbar strain; that the injury in this area was also disabling and is continuing. That while this painful condition was being examined by medical specialists. Said specialists were not given the opportunity to make medical diagnosis and to provide conservative and/or surgical remedy and they have not been able to provide any medical diagnosis as to any other or worse condition in this area by reason of the refusal of the defendants to provide for payment of hospital, medical and all other associated and needed costs to provide for such and because of the personal financial inability of the plaintiff to do so.

“The court finds that the plaintiff has proved by a preponderance of the evidence and clearly that there are injuries to the plaintiff sustained by him April 13, 1976 to his lower back caused by this occupational accident, the exact nature and extent of which is undetermined and that such has been interrupted by the failure of the defendants to provide the hospital, medical and other necessary costs to do so.

“In the meantime, the plaintiff has proved that there is an injury and disability occasioned by the injury to his lower back area, the exact nature and extent of which is yet undetermined but that it is at least rendering him partially disabled reserving to the plaintiff, in the event the tests and/or surgery and ultimate results should prove another type or degree of disability to in these or subsequent proceedings urge such and demand appropriate remedies and compensation therefore, together with legal interest, costs and, if applicable, penalties and attorney’s fees.

“The defendants urge that the limitations of activity expressed by plaintiff’s medical witnesses are compatible with the activity requirement of plaintiff in his job as material hustler with Aquatic Equipment and Engineering, Inc., at the time of the injury, April 13,1976, and since. Such defendant’s witness stated in substance that the company required no climbing, no jumping, no lifting for the job of material hustler or foreman — that the job is merely and purely supervisory; that the plaintiff and any other person occupying the job of material hustler or foreman is totally supervisory requiring him only to direct laborers to climb, jump, pick up pipe personally or with mechanical devices. However, this same witness, an official of the defendant company, added that the requirements of other companies may require that the foreman physically help the men under him by climbing, picking up and lifting, etc. Against this is the testimony of the plaintiff that in the performance of his duties he found it necessary to climb the ladder and he struck his head against the obstruction.

“The court feels that what the employee did in the course of his work at the time of his injury is a more reliable description of his job duties than the job duty description given by an officer of the company after the fact of the accident.

“The plaintiff has proved by a preponderance of the evidence that the job occupied by him with the defendant company and required by other similar companies at the time of the accident and presently requires of the material hustler or foreman some climbing, some jumping, some lifting, some help to the laborers and that the job requires closer supervision which requires some climbing and jumping.

“The court finds that the plaintiff’s present state of injuries produced partial disability of plaintiff to perform the duties in which he was customarily engaged when injured and duties of the same or similar character, nature or description for which he was fitted by education, training and experience and that these injuries and disabilities were caused by the occupational accident which occurred on April 13, 1976 while employed within the course and scope of his employment with the defendant, Aquatic Equipment and Engineering, Inc. The plaintiff is therefore entitled to receive sixty-six and two-thirds (66⅜%) percentum of the difference between the wages he was earning at the time of the injury and any lesser wages which he actually earns in any week thereafter in any gainful occupation for wages but not beyond a maximum of four hundred (400) weeks and not to exceed a rate of Eighty-five and no/100 ($85.00) Dollars per week.

“The plaintiff has proved by a preponderance of the evidence that at the time of the accident he was earning $7.75 per hour. His testimony is that he earned about $600.00 per week. However, the court received no cooberative (sic) evidence of overtime. The plaintiff has proved employment of at least forty (40) hours per week at $7.75 per hour or a total of $310.00 per week gross.

“According to defendant exhibit 9 and defendant exhibit 10 plaintiff’s income from October 8, 1977 inclusive of June 29, 1978 totals $4,789.38. This covers a period of 38 weeks which results in an average of $126.03 per week.

“The difference between what he was earning at the time of the accident ($310.00 per week) and the average weekly wage during the period from October 8, 1977 through and including June 29, 1978 ($126.03) is a difference of $183.97 per week. Sixty-six and two-thirds (66⅜%) percent of this difference is $122.65 average per week. Since this exceeds the maximum provided by law the maximum of $85.00 per week applies.

“Because some of the expenses to the plaintiff were anxiety related it is necessary to explore whether or not those expenses are also owed by the defendants.

“Because of the entry of Mr. Guy W. Dupre in the Lakewood Hospital March 12,1976 on conditions which he feared to be a heart attack, but diagnosed as anxiety, and because the Lakewood Hospital entry of March 30, 1977 and the Ochsner Hospital entry of April 10, 1977 were because of anxiety, the question arises to whether or not the anxiety of the last two items were caused and/or aggravated by the accident which occurred on April 13, 1976.

“It is proved by a preponderance of the evidence that the plaintiff had a disposition towards anxiety at the time of the accident as witness his entry into the Lakewood Hospital March 12, 1976.

“Dr. Charles Kelso Billings in his deposition, page 37, states: ‘_ I think that the probable resulting chest pain from his anxiety probably was a result of all that he had been through the previous year.’

“The court finds that the plaintiff, when injured on April 13, 1976 had a condition to be subject to anxiety and that the accident and personal injuries and subsequent necessary operations and medical treatment suffered by the plaintiff therein caused such anxiety condition to be enhanced and aggravated.

“The court finds that it is proved by a preponderance of the evidence that the defendant paid to the plaintiff workmen compensation payments weekly at a rate of $85.00 per week until May 28,1978 and that no compensation or other payments have been made to the plaintiff since that time and that the defendants refuse to do so. “It has been proved by a preponderance of the evidence that the defendants have ceased providing further medical expenses and refuse to pay any outstanding medical treatment cost incurred but not paid and which unpaid medical expenses are as follow to-wit:

1. Tulane Medical Center Hospital, New Orleans, Louisiana (P-11) $1,024.80
2. Tulane Medical Center, New Orleans, Louisiana (P-12) $ 188.00
3. Medical Arts Pharmacy, Morgan City, Louisiana (P-13) $ 634.53
4. Tulane University Medical School, (Drs. Correa & Amilcar) (P-14) $2,915.00
5. Ochsner Foundation Hospital, (P-15) $ 934.35
6. Lakewood Hospital, Morgan City, Louisiana (P-16) $1,760.55
7. Lakeside Laboratory, Inc., Morgan City, Louisiana (P-17) $ 36.00
8. Acadian Ambulance Service, Inc., Lafayette, Louisiana (P-18) $ 219.00
9. Drs. Fortenberry, Hurwitz, Willes & Boothe, New Orleans, La. (P-19) $ 100.00
TOTAL UNPAID BUT DUE MEDICAL DEBTS $7,812.23

“The court finds that the plaintiff has been and is now in need of further medical examination, diagnosis and medical remedies and treatment caused by the injuries received by him in the employment-related accident on or about April 13, 1976.

“The following costs for depositions, and expert witness fees incidental and necessary to this lawsuit, the costs of which were advanced by Krebs & Versaggi and/or Victor Versaggi, are hereby fixed and taxed as costs:

1. Associate Reporters, $ 265.05 New Orleans, Louisiana (P-20)
2. Raeburn C. Llewellyn, M.D., $ 250.00 (P-21)
3. Affiliated Reporters, Inc., $ 92.70 New Orleans, Louisiana (P-22)
4. Amilcar J. E. Correa, M.D., $ 25.00 Medical Conference (P-23) _
TOTAL $ 632.75

“The court further finds that the defendant in ceasing to make continued compensation benefit payment on May 28, 1978 and in ceasing to provide medical treatment and medical care or to pay such medical treatment and medical care costs which it ceased to do on May 28,1978 did so without probable cause and in doing so acted arbitrarily and capriciously.”

We find the facts to be amply supported by the record and hold that the trial court committed no error in its determinations.

We shall discuss appellants’ specification of error number three in more detail. Appellants argue that the method by which the trial court determined compensation amounts for the period of time worked subsequent to the accident is incorrect.

The trial judge, having found the appel-lee partially disabled, was bound to apply the following statutory provision in determining compensation:

La.R.S. 23:1221(3) provides:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976.” (Emphasis by the court.)

Appellants contend the appellee actually earned during several separate weeks an amount which under the formula would not entitle him to any compensation for those particular weeks. Their argument is that the trial court erred in averaging the appel-lee’s commissions over the period of time rather than considering the commissions as received on a week to week basis.

Under La.R.S. 23:1021(7) wages are defined as follows:

‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; (b) If the employee is paid on a monthly basis, his monthly salary divided by four; (c) If the employee is employed at an annual salary, his annual salary divided by fifty-two; and (d) If the em-. ployee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.” (Emphasis by the court.)

There is no definition of wages in the statute for wages earned after the time of injury. However, we find that by analogy the definition of wages in La.R.S. 23:1021(7) could be applied to wages subsequent to the time of injury.

Under La.R.S. 23:1021(7), if an employee is employed on a commission basis, his average weekly wage at the time of the accident is computed as follows:

“. . . (H)is (the employee’s) gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; provided, however, that if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by four.”

This formula is a method of averaging to determine weekly wages earned on a commission basis.

In the instant case there was evidence introduced only on the gross earnings of commissions earned during a thirty-eight week period and there was no evidence introduced as to the actual number of days the employee worked during any of the thirty-eight weeks. The appellee did not appeal nor did he answer the appeal.

The trial court took the total amount of commissions earned by the appellee from October 8, 1977 to June 29, 1978, which was $4,789.38 and divided this amount by the number of weeks involved (in this case 38 weeks), which resulted in an average weekly wage actually earned of $126.03 per week. Based upon the facts of this case, this was a proper method for the trial court to use to determine average weekly wage.

We believe the averaging method to be correct because had appellee earned commissions as salary prior to the time of injury, his average weekly wage would have been computed as provided in La.R.S. 23:1021(7). This basic method of averaging should also hold true for the computation after the time of injury. In the instant case appellee earned hourly wages prior to the accident and commissions subsequently. In order to properly compute the formula as specified in La.R.S. 23:1221(3), we believe it is necessary to analogize the determination of weekly wages of commissions for the time period subsequent to the accident to a similar determination of weekly wages of commissions prior to the accident.

We recognize that La.R.S. 23:1221(3) provides for a determination of any lesser wages the employee actually earns in any week subsequent to the accident. However, this statute does not provide for a calculation of how actually earned wages are determined if the employee is on a commission basis. Further, wages is defined by statute to mean average weekly wages. La.R.S. 23:1021(7), supra. We believe by analogizing to the averaging method provided in La.R.S. 23:1021(7) the actual wages of the employee contemplated by La.R.S. 23:1221(3) can be determined by finding the average weekly wage appellee earned in commissions during the thirty-eight weeks he worked subsequent to the accident. Since sixty-six and two-thirds (66⅜%) per centum of the difference between the wages earned at the time of the injury and wages earned subsequent to the injury exceeds the maximum provided by law under La.R.S. 23:1202(1) which is $85.00 per week, Dupre is entitled to $85.00 per week for the time period involved.

We are aware of the decision in LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283 (La.App. 1st Cir. 1977), writ refused, 351 So.2d 174 (La.1977); however, we do not believe our findings are inconsistent with this decision.

For the reasons given above the judgment of the trial court is affirmed. Costs of this appeal are to be assessed against appellants.

AFFIRMED.


author: EDWARDS, Judge.

text:
    QUALITY TRANSPORT, INC. v. YOUNGER BROTHERS, INC., et al. Steven BROWN v. YOUNGER BROTHERS, INC., et al. TEXAS GENERAL INDEMNITY COMPANY v. YOUNGER BROTHERS, INC., et al.
    Nos. 12343, 12344 and 12345.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Writs Refused Sept. 4, 1979.

      William C. Kaufman, III, Baton Rouge, for Quality.
    Calvin E. Hardin and Emile C. Rolfs, III, Baton Rouge, for Younger Bros.
    Perrin C. Butler, and John E. Peltier, Jr., New Orleans, for Brown.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   ON REMAND FROM SUPREME COURT OF LOUISIANA

EDWARDS, Judge.

These consolidated cases are before us on remand from the Louisiana Supreme Court, so that we might reconsider our earlier opinion in light of the ruling in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In Arceneaux the Supreme Court noted, what it termed, a “widespread misunderstanding” of its holding in Canter v. Koehring Company, 283 So.2d 716 (La.1973), concerning the standard of appellate review of facts vis-a-vis the doctrine of manifest error. The Supreme Court in an attempt to correct this misconception held: “Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” 365 So.2d 1330, 1333.

What we did in these eases, although prior to Arceneaux, was precisely that procedure.

The jury trial in these consolidated cases resulted in a general verdict in favor of the defendants. No reasons were assigned to support this verdict or the judgment.

On appeal, we concluded, based on a careful reading of the entire record, that 1) there was evidence establishing that the defendant driver, Honeysuckle, was negligent and 2) the jury must have found that the plaintiff driver, Brown, was contributo-rily negligent.

We stated in our original opinion at page 1044:

“Honeysuckle testified that he stopped before entering the intersection; that he looked south toward New Orleans; that his view was unobstructed for approximately a quarter of a mile; and that he did not see any northbound vehicles on U.S. 61. On the other hand, Brown testified that he was only 40-50 yards from the intersection when Honeysuckle pulled out suddenly. Brown’s estimate of such a short distance is inconsistent with the physical evidence of skid marks of approximately 235 feet and with the testimony of the other witnesses.”

The jury, we believe, must have rejected Brown’s version of the accident, particularly his testimony that Honeysuckle pulled out so suddenly when he (Brown) was in such close proximity to the intersection that he could not safely pass in the outside lane. Also, the jury apparently accepted Honeysuckle’s testimony that he entered the highway after observing that no northbound vehicles were approaching; that he pulled his truck into the median up to the edge of the southbound lanes; and that Brown could have safely passed behind him.

We find that the jury could reasonably have refused to believe Brown in view of the apparent inconsistencies in his testimony when compared with the other evidence in the record. Additionally, we find that the factual account of the accident related by Honeysuckle provides a sufficient basis to support the jury’s determination that Brown was at fault in causing the accident.

We cannot find that the jury’s verdict is clearly wrong — manifestly erroneous.

For the above reasons and the reasons expressed in our original opinion, the judgment appealed is affirmed at plaintiffs’ costs.

AFFIRMED.

      . Quality Transport, Inc. v. Younger Brothers, Inc., 366 So.2d 1042 (La.App. 1st Cir. 1978).


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Evelina Pierce WILSON et al.
    No. 12636.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      H. Michael Aaron, Crawford, Lambert & Goldsmith, Gonzales, for defendants and ap-pellees.
    Robert Ledoux, James Russell, Johnie E. Branch, Jr., Baton Rouge, for plaintiff and appellant.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   EDWARDS, Judge.

The Department of Highways instituted this expropriation proceeding pursuant to LSA-R.S. 48:441 et seq. to acquire .299 of an acre of land owned by defendants for use in the construction of 1-10 in Ascension Parish near Gonzales. The defendants answered, seeking additional compensation for the land taken and an award for severance damages. After trial on the merits, the trial court rendered judgment in favor of the defendants for the sum of $10,372.10 ($568.10 as the stipulated value of the land and $9,804.00 as severance damages), less a credit of $399.00 for the sum deposited by the Department. From this judgment, the Department has appealed.

The sole issue presented for review is severance damages.

Prior to the taking, defendants owned a rectangular tract of and containing approximately 41 acres. The land had frontage on three roads, Louisiana highway 940 on the north of the land, a parish road on the east, and Louisiana highway 30 on the south, and was located at the southwest quadrant of the intersection of La. 940 and the parish road. Three buildings were situated on the land — two frame residences and another building which was being used as a barber shop and bar. Additionally, the property was within walking distance of numerous other homes and a junior high school.

As a result of the taking, the property is now severed from the populated area to the north by the interstate highway.

Only three witnesses, all expert appraisers, testified at the trial: two appraisers on behalf of the Department and one appraiser for the defendants.

The two appraisers who testified on behalf of the Department stated that they found no severance damages. Both testified that the highest and best use for the land was the same after the taking as it had been before, and that the value of the remainder after the taking was unchanged from its previous value.

The defendants’ appraiser, Kermit Wayne Williams, on the other hand, testified that the property had suffered severance damages. He stated that the highest and best use of the land prior to the taking was small acreage homesites with some local commercial use along the northern corner of the property. After the taking, he believed that the highest and best use for the entire tract was small acreage homesites, but to a lesser degree with a lower value. Williams based his conclusion on the isolation of the property from the more populated areas and from the growth pattern of the city of Gonzales caused by the intervening highway. He noted that there was considerable new development along the parish road north of the interstate while there was no development in the area of the subject property. Williams calculated that the property had suffered a diminution in value of 10% or a $8,804 loss as a direct result of the taking. Additionally, he concluded that the building containing the barbershop and bar had lost its utility, and that $1,000 was needed in damages to convert it back to a residential use.

The trial judge, in his reasons for judgment, found that the property had suffered severance damages, and accepting Williams’ testimony, awarded $9,804 in damages to defendants.

The Department, in the first of its two specifications of error, maintains that the trial judge erred in accepting Williams’ report and testimony on the issue of severance damages. It argues that Williams’ testimony is unsupported opinion and based on two noncompensable factors, circuity of travel and loss of business.

Severance damage is any depreciation in market value of the remainder of a landowner’s property caused by the taking. Such damages are recoverable and are ordinarily calculated as the difference between the value value of the remaining property before and after the taking. State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975). The burden of proving severance damages rests on the landowner, who must prove such damages with legal certainty by a preponderance of the evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961). However, there is no fixed or artificial formula by which such damages must be proved. Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974). In fact, the informed and reasoned opinion of an expert, corroborated by the facts in the record, may be sufficient proof of a severance damage loss, especially where it is accepted by the trier of fact. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976); State, Department of Highways v. Denham Springs Development Co., Inc., supra, and cases cited therein.

In expropriation proceedings, the trial court’s factual findings as to severance damages and the evaluation of, and the weight given to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Department of Highways v. Ruckstuhl, 348 So.2d 701, 704 (La.App. 1st Cir. 1977); See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial judge accepted Williams’ opinion that the remainder was damaged. We believe his testimony that the defendants were deprived of the full potential of future development as a result of the taking is corroborated by the facts in the record and is not entirely speculative.

Regarding the Department’s contention that Williams’ determination of damages rests on two allegedly noncompensable factors, we cannot agree. It is apparent from the record that Williams based his opinion that the remaining property had sustained severance damages on the change of the highest and best use of the land as a result of its isolation from the growth pattern of the city of Gonzales. We need not and do not reach the issue of whether circuity of travel and loss of business are noncompensable items when dealing with severance damages.

After careful review of the entire record, we are convinced that the defendants have established their entitlement to severance damages by a preponderance of the evidence. We do not find that the trial judge’s acceptance of Williams’ testimony amounts to manifest error or that such is clearly wrong. Arceneaux v. Domingue, supra.

The amount of damages was based on a 10% diminution of the value of the remainder ($8,804), plus $1,000 rehabilitative damages to convert the building containing the barbershop and bar to a residential use. We cannot say that the trial judge committed manifest error in using the 10% damage figure proposed in Williams’ estimate. However, the $1,000 award to convert the barbershop structure to a residence has no evidentiary basis in either Williams’ report or the testimony presented at trial. Although Williams opined that the land had lost its commercial use, he did not state that the building or the businesses were in anyway damaged as a result of the taking. The award will be reduced to disallow this $1,000 item.

The Department’s second specification of error contends that the trial judge should have refused to award severance damages inasmuch as damages were denied with regard to an adjacent piece of land in the case of State, Department of Highways v. Willard, et al., affirmed by this Court in an unpublished opinion (No. 11,910) on March 20, 1978.

There is no merit in this contention. Each case is decided on its own facts based on the evidence presented to the trier of fact.

For the above reasons, the judgment of the trial court is amended to reduce the award in favor of the defendants to the sum of $9,372.10, less the $399 credit, and is affirmed in all other respects. Costs are assessed against the Department insofar as allowed by law.

AMENDED AND AFFIRMED.