text:
    ROBERTS APARTMENT AGENCY, INC. and Bobby L. Forrest v. J. L. MALLETT et al.
    No. 11209.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused July 1, 1977.

      Bobby L. Forrest, Baton Rouge, of counsel for plaintiff Roberts Apartment Agency, Inc. and Bobby L. Forrest, appellee.
    Leon Gary, Jr., Baton Rouge, of counsel for defendant J. L. Mallett, W. R. Copeland, and C. R. Tyler, appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiffs sued defendants for the return of real estate option money in the total amount of $24,000.00. The Trial Court rendered judgment as prayed for, and defendants have taken this suspensive appeal.

For some time prior to the summer of 1970, Roberts United Methodist Church in Denham Springs was interested in promoting the construction of a multi-family apartment project for low and moderate income residents under Section 236 of the National Housing Act. At that time, the Church group contacted Denham Street Apartments, a partnership registered in Baton Rouge, composed of Victor A. Achee, Alfred R. Guglielmo, william E. Day, Jr., F. G. Sullivan, Jr., and Bobby L. Forrest. The partnership agreed to assist the Church with its development plans in exchange for the right to build and manage the apartment project.

In August 1970, defendants J. L. Mallett, W. R. Copeland and C. R. Tyler, by written instrument granted an option to Bobby L. Forrest described in the instrument as acting as, “attorney for an undisclosed principal later to be designated,” on property partially in and partially outside the city limits of Denham Springs in Livingston Parish. The option was for 90 days at a consideration of $3,000.00, grantee having the right to renew the option for three additional 30 day periods upon payment of $1,000.00 for each 30 day period. The written agreement provided that if the option was exercised, then the option money would be returned to grantee and would not be applied to the purchase price. It further provided, . . . “this Option is predicated upon subject property being rezoned to a zoning classification that will permit the construction of multi-family dwellings.” This 90 day option period began to run on August 24,1970. The record contains testimony from members of Roberts United Methodist Church that the Church paid the $3,000.00 for this option out of one of its accounts.

On June 4,1970, the City Council of Den-ham Springs rezoned the property in question to M-l Multi-Dwelling, which was a zoning suitable for the intended purpose.

In September 1970, a nonprofit corporation known as Roberts Apartment Agency, Inc. was formed, having a board, officers, etc., made up of members of Roberts Avenue Methodist Church.

Because of the time required for rezoning, and by agreement of the parties in October 1970, defendants-appellants granted Forrest, as attorney for an undisclosed principal, six additional 30 day option periods at the consideration of $1,000.00 for each 30 day period. This written agreement provided that payments made for these option extensions, “will not be applied to the purchase price.”

Apparently because of delays in processing the F.H.A. commitment, in September 1971, defendants-appellants granted Forrest, as attorney for an undisclosed principal, six additional 30 day option periods at the consideration of $1,000.00 for each 30 day period to begin running from August 24, 1971. This written agreement provided that the payments, “shall not be applied to the purchase price.” It is important to note that this third instrument contained an acknowledgment that the prior extension periods had extended the option to August 24, 1971 though, as a matter of fact, an actual counting of days would not have extended the option that long. This instrument also acknowledged receipt of all monies due for the original option and the extensions thereto.

On January 31, 1972, in order to meet a requirement of F.H.A., the parties entered into separate option agreements for the property inside the city limits of Denham Springs and for that outside. Each of the options was initially granted for one month at a consideration of $500.00, and each provided the right to renew the option for six additional one month periods at $500.00 each. Each agreement provided that it was in lieu of all previous options, and the agreement pertaining to the acreage within the city limits provided that, “all monies previously paid will not be returned to purchaser, except $3,000.00.” In addition, both provided, “In the event the Option is exercised, then the option money would not be returned to PURCHASER and would not be applied to the purchase price.” Both also provided, “ . . . this Option is predicated upon subject property being rezoned to a zoning classification that will permit the construction of multi-dwellings.”

By Judgment on or about June 23, 1972, in separate legal proceedings apparently unknown to any of the parties to this lawsuit, the rezoning ordinance passed on June 4,1970 was declared void by a district court.

In November 1972, in order to attempt to salvage the project, the three defendants as grantors and Bobby Forrest, acting as attorney for an undisclosed principal later to be designated, as grantee, entered into a six month option on property outside of the city limits of Denham Springs, for a consideration of $1.00. No mention was made of zoning or the disposition of the option consideration.

In connection with the option agreement on the property outside of the city limits, the parties also executed a counter letter which provides that if the option was exercised, then all sums paid for previous options would be returned. The counter letter also contained the following language:

“It is further agreed and understood that in the event it is impossible to culminate the sale pursuant to the terms of a new option, then in that event the parties will stand in the same legal relationship as they stood on November 8, 1972, prior to the execution and preparation of the new options, neither party waiving any rights or privileges, and neither party shall be relieved of any obligation or obligations under the options previously executed as revised.”

The counter letter provides that utilities and sewer lines would be brought to the property at the expense of grantor. There was testimony at the trial that the City of Denham Springs would not allow use of its utilities and sewer lines, and the Trial Judge, in written reasons for judgment, found that this last option was not exercised because of difficulties beyond the control of the parties.

With regard to the original option, its extensions, and the two options prepared to split the land in order to meet F.H.A. requirements, it is necessary to consider the Judgment declaring the zoning ordinance for multi-family classifications to be void. According to the Supreme Court of Louisiana, such a holding results in the same condition as though the ordinance had not been passed. O. L. Archer et al v. City of Shreveport, 226 La. 867, 77 So.2d 517 (1955) and Vieux Carre Property Owners and Associates, Inc., et al v. City of New Orleans et al, 246 La. 788, 167 So.2d 367 (1964). Defendants argue that the property in question was zoned multi-family during the time the options and extensions were in existence, and thus, the requirements as to zoning had been met. Defendants also argue that the delay caused by F.H.A. in processing the transaction is the thing that prevented the sale from taking place prior to the rezoning being declared void. They ask us to assume a situation that Forrest allowed his options to expire while the property was suitably zoned. They also ask us to assume that the zoning ordinance was later declared void some two or even ten years later. But those are not the facts we are called on to consider.

The Trial Judge interpreted the language in the original option and in the two options splitting the property into two tracts which states that the options were predicated upon the property being rezoned to a zoning classification that will permit construction of multi-family dwellings to mean that the rezoning was a condition of the contract and failure thereof was a failure of cause. He therefore determined that all monies should be returned to plaintiffs.

Defendants-appellants make a number of arguments as to reasons the Trial Court is in error.

Defendants argue that Roberts Apartment Agency, Inc. and Bobby L. Forrest were not the proper parties to assert the claims of this lawsuit and also that Forrest was not properly authorized to act as agent for Roberts Apartment Agency, Inc. The grantee in the three options was, “Bobby L. Forrest, ... or anyone designated by him, it being agreed and understood that said attorney is acting as attorney for an undisclosed principal later to be designated.” The grantee in the two extensions to the first option was, “Bobby L. Forrest, attorney for an undisclosed principal.” Therefore, in each instance Forrest was designated as an agent for an unnamed party. Defendants’ argument seems futile since both Forrest and Roberts Apartment Agency, Inc. are plaintiffs, and if Forrest is not an agent, then by law he is deemed to have acted individually. It would make no sense to argue that he paid the option money for no one. Since both Forrest and Roberts Apartment Agency, Inc. are plaintiffs it is unnecessary to make a determination as to whether Forrest acted individually or as agent of Roberts Apartment Agency, Inc.

Defendants argue that plaintiffs failed to prove they had paid and were entitled to the return of $24,000.00. The September 1971 instrument which was the second extension granting six additional 30 day option periods states that, “said parties hereto acknowledge receipt of all moneys paid for the above referred options. . . . ” This amounts to a receipt of $12,000.00 due through August 24, 1971. Defendants’ brief as much as admits receipt of $7,000.00 due under the terms of the two agreements dated January 31, 1972, splitting the option agreements into property inside and outside the city limits of Denham Springs. There remains $5,000.00 for August through December of 1971. The Trial Judge might well have considered the fact that defendants at no time made the argument that the options lapsed because plaintiffs did not pay the monthly consideration due thereunder. A reasonable evaluation of inferences of fact by the Trial Court will not be disturbed on appeal. Canter v. Koehring, 283 So.2d 716 (La.1973).

Defendants argue that the Trial Court erred in holding the options to be continuous transaction. We think the Trial Court was correct in this conclusion inasmuch as there is no question that two extensions to the original option would be considered part thereof and the two options entered into January 31, 1972 were agreed to by the parties for the purpose of satisfying F.H.A. requirements.

Defendants argue that the Trial Court erred in failing to find that the plaintiffs acted reasonably by failing to pursue further zoning changes when the city’s zoning ordinance was struck down. It is interesting to note that none of the instruments executed by the parties placed the burden on either grantor or grantee to achieve the necessary zoning changes. Since it was not plaintiffs’ duty by the terms of the agreements, defendants’ argument is without merit.

Defendants argue that the Trial Court erred in failing to construe certain vague and inconsistent provisions of the agreements against the plaintiffs as the preparer of the documents. The main question running through this litigation is what is meant by the language that the zoning change was a “condition precedent.” Though this language is not as explanatory as it might have been, it seems clear that plaintiffs were not interested in the property, and therefore would not be paying the option money, unless it were rezoned to permit the construction of a multi-family apartment project. We agree with the Trial Court that the lack of zoning for the desired apartment project made the property of little or no value to plaintiffs resulting in a failure of the cause for which the options were negotiated.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by appellants.

AFFIRMED.


source: Caselaw Access Project

author: COVINGTON, Judge. LOTTINGER, Judge,

license: Public Domain

text:
    Numa GUIDRY et al. v. Mark CHERAMIE et al.
    No. 11224.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Granted June 10, 1977.

      M. Arnaud Pilie, of Pilie, Pilie & Landry, New Orleans, for intervenors and appellants.
    Stanley L. Perry, Galliano, for plaintiffs and appellees.
    Pugh, Lanier & Pugh, John L. Lanier, Thibodaux, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a suspensive appeal from a judgment setting aside the judicial sale in the partition suit and denying the homologation of the partition; the judgment also rejected the opponents’ attack on the validity of the partition judgment. The opponents answered the appeal.

The facts are not in dispute, having been jointly stipulated by the parties. The suit arose over a partition by licitation of the subject property, which had been acquired by Leoca Cheramie and Euzide Adams Cheramie during their marriage, by deed dated August 7, 1901. Both of them died intestate, he in 1953 and she in 1959, and their successions have not been opened. Their sole forced heirs are five children and the six children of a pre-deceased son. Their estate was comprised of the subject property, situated in Lafourche Parish, Louisiana.

Subsequently, Numa Guidry and his wife, Mercedes Guidry, who was one of the Cher-amie daughters, brought a suit for partition by licitation of the subject property on April 10, 1973, against the other nine coheirs, Mark Cheramie, Alzire Cheramie Le-fort, Elie Cheramie, Annette Cheramie LeLoup, Teddy Cheramie, Patricia Chera-mie, Betsy Cheramie Ayo, Russell A. Chera-mie, and Carolyn Cheramie LaPlante. At the time of the partition suit, Numa Guidry owned an undivided Vs interest in the subject property, which he had purchased from Odeia Cheramie Pierce, one of the Cheramie heirs; and Mercedes Cheramie Guidry owned another undivided Ve interest which she acquired by inheritance from her parents. Three of the defendants in the partition suit were served by personal service; the others were served by domiciliary service.

The defendants in the partition suit filed no pleadings, and on June 21, 1974, a preliminary default was entered against all defendants. The default was confirmed on November 5, 1974. Notice of the default judgment was not served on any defendant.

On the same day on which the default judgment was signed, the plaintiffs sought to execute the judgment and they had the clerk of court issue a commission to the sheriff to sell the property.

After advertisement, the property was sold at public auction on December 11,1974, to Numa Guidry, Robert J. Guidry and Dick J. Guidry for the sum of $40,000.00.

When the partition came on for homolo-gation, the defendants filed opposition. One of them, Carolyn Cheramie LaPlante, withdrew her opposition on November 11, 1975. Two purchasers of the property at the sale, Dick J. Guidry and Robert J. Gui-dry, filed an exception of no right and no cause of action to the opposition.

The matter came on for hearing, and judgment was rendered on September 20, 1976. This judgment is now on appeal.

The trial court found that defendants, Annette Cheramie LeLoup, Elie Cheramie, Mark Cheramie and Alzire Cheramie Le-fort, had been served in the partition suit by domiciliary service, and that no notice of judgment had been served on these defendants. The trial court then held that under the law the delays for application for a new trial and the taking of a suspensive appeal did not begin to run against these defendants until such time as they were served with notice of judgment as required by LSA-C.C.P. art. 1913. Since there was no notice of judgment served on these defendants, and the legal delays had not expired, the partition judgment confirmed against them on November 5, 1974, was not executory and final and the judicial sale was, thus, premature. The trial court then concluded the sheriff’s sale, being an attempted execution of a judgment that was not executory, was null and void.

It is elementary that until a judgment becomes, or is made, executory, no execution of the judgment can be effected. Only a judgment in an executory status may be enforced.

Therefore, we must determine whether, on the established facts in the instant case, the default judgment was an executory judgment when the plaintiffs in the partition suit proceeded to have it executed.

The partition proceeding is governed by the procedural rules regulating ordinary proceedings with reference to default judgments, motions for new trial, appeals, appropriate delays, notice of judgments and execution of judgments, as far as practicable. LSA-C.C.P. art. 4603.

Article 4603 expressly provides, in part: “Except as otherwise provided by law, a partition proceeding is subject to the rules regulating ordinary proceedings.”

Code of Civil Procedure article 4607 provides:

“When a partition is to be made by licitation, the sale shall be conducted at public auction and after the advertisements required for judicial sales under execution...."

The comments under this provision refer back to the general rules, beginning with LSA-C.C.P. art. 2331, which are applicable to judicial sales under fieri facias, the writ used to execute money judgments. See LSA-C.C.P. art. 2291.

Thus, the judgment by default in a partition proceeding must be taken in accordance with the rules set out in LSA-C. C.P. arts. 1701-1703, 1843.

Specifically, the notice of judgment requirements of LSA-C.C.P. art. 1913 are applicable.

LSA-C.C.P. art. 1913 provides as follows in part:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.”
LSA-C.C.P. art. 2252 provides as follows: “A judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed.”

Although the article uses the words “judgment creditor” this is an illustration, rather than restrictive, description of the party in whose favor the judgment was rendered. The provisions of this article were not intended to be limited to the party in whose favor a money judgment was rendered; they apply to any judgment obligee.

In the instant case the default judgment was taken against defendants who had been served by domiciliary service and who were mandatorily entitled to notice of judgment under LSA-C.C.P. art. 1913. The delays for applying for a new trial did not begin to run until such notice of judgment was served.

The record reflects that at the time that the execution of the partition judgment was sought no notice of judgment had yet been served. Consequently, the delay allowed for applying for new trial had not begun to run. LSA-C.C.P. art. 1913. LSA-C.C.P. arts. 1974 and 2123 in effect provide that the delay for suspensively appealing does not begin to run until the expiration of the delay allowed for applying for new trial.

It necessarily follows that until the time has elapsed in which a suspensive appeal may be taken a judgment is non-executory. In the instant case, the time in which to take a suspensive appeal had not even commenced to run. Consequently, the plaintiffs’ partition judgment was not executory when execution was attempted; therefore, the execution was premature and without legal effect.

Although the cases of Nassau Realty Co. v. Brown, 332 So.2d 206 (La.1976), and Bou-dreaux v. Allstate Finance Corporation, 217 So.2d 439 (La.App. 1 Cir. 1968), deal with enforcement of judgments by means of writs of fieri facias, the rationale of these cases is pertinent, i. e., that a judgment is not executory until the delay allowed by law for taking a suspensive appeal has elapsed, and that the delay does not commence tolling until expiration of the time allowed for application of a new trial, which does not commence to run until notice of judgment is served on a domiciliarily-served defendant against whom a default judgment has been taken.

In the Nassau Realty opinion the Supreme Court stated:

“The default judgment rendered against the Browns on November 19, 1974 was based on personal service on Mrs. Brown and domiciliary service on Mr. Brown. Article 1913 of the Code of Civil Procedure requires that notice of the signing of a default judgment against a defendant on whom citation was not served personally shall be served on the defendant by the sheriff, by either personal or domiciliary service. Therefore, since Mrs. Brown was personally served, no notice of judgment was required to be served on her. On the other hand, since Mr. Brown was not served personally, notice of judgment was required to be served on him. Article 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays, and commences to run on the day after the judgment was signed except when notice of the judgment is required under article 1913 in which event the delay for applying for a new trial commences to run on the day after the sheriff has served notice of judgment. Thus, the delay for applying a new trial commenced to run on November 20, 1974 insofar as Mrs. Brown is concerned; however, it never commenced to run in regard to Mr. Brown, as he was not served with a notice of judgment as required by article 1913.”

The Court then held:

“In the instant case, therefore, the delay for taking a suspensive appeal by Mr. Brown had not elapsed when the Brown property was seized and ordered sold under a writ of fieri facias. Hence, it was premature and constituted a wrongful seizure. La.Code Civ.P. arts. 1913, 1974, 2123, 2252. Mr. Brown is entitled to have this illegal seizure dissolved as prayed for in his petition for injunctive relief filed on December 5, 1975 and rejected by the district court. La.Code Civ.P. art. 2298(1).” (footnote omitted)

The court in Moses v. American Security Bank of Villa Platte, 222 So.2d 899 (La.App. 3 Cir. 1969), held that:

“Article 1913 provides that the defendant must be given notice by service by the Sheriff of the signing of a default judgment obtained against him on the basis of domiciliary service.
“The delay to apply for a new trial, Article 1974, or for an appeal (Kinchen v. Kinchen, La.App.1st Cir., 211 So.2d 91; Viator v. Grain Dealers Mut. Ins. Co., La.App.3d Cir., 178 So.2d 378), does not commence to run until such notice is given. No notice of judgment whatsoever had been given to the defendants before their suit to dissolve the illegal seizure or before the judgment entered below. Since the delay to take a suspensive appeal had not commenced to run, the seizure was therefore at all times premature up to and including the time of the judgment dissolving it now appealed from.” (footnote omitted)

In Boudreaux v. Allstate Finance Corporation, 217 So.2d 439 (La.App. 1 Cir. 1968), this court said, in holding that the suspen-sive appeal was timely,:

“Since the matter was taken under advisement by the trial court, the delays for applying for a new trial did not commence to run until notice of judgment was served upon defendant. LSA-C.C.P. Article 1913. It is patent on the face of the record that no such notice was in fact served. Consequently the delay allowed for applying for new trial never commenced to run. LSA-C.C.P. Article 1913. Articles 1974 and 2123, LSA-C.C.P. in effect provide that the delays for appealing either suspensively or devolutively do not commence tolling until expiration of the delay allowed for application for new trial. Since the 15 day delay allowed by law for taking a suspensive appeal, LSA-C.C.P. Article 2123 never commenced to run, it necessarily follows that it never expired and defendant’s suspensive appeal was timely taken and perfected.”

The cases relied upon by the appellants are distinguishable. See e. g. Wetherbee v. Lodwick Lumber Co., 194 La. 352, 193 So. 671 (1940); Hartson v. Flaty, 192 La. 782, 189 So. 134 (1939).

In Wetherbee the judgment under consideration was not a default judgment. The delay for taking a suspensive appeal had elapsed, and the defendant only took a de-volutive appeal. The writ of fieri facias was not issued until five months after the partition judgment. The judgment had clearly become executory. The court merely holds that the validity of a sale made in the execution of a judgment after it became executory is not affected by a subsequent reversal of the judgment on devolu-tive appeal.

In Hartson, the auction sale was after the partition judgment had become executory. The defendants were duly cited and represented by an attorney. The question of notice of judgment was not involved.

In those two cases, premature executions of executory judgments were involved; there were no legal impediments to the commencement of the tolling of the delay for an appeal. In the instant case, it is a question of a premature execution of a non-executory judgment; there were legal impediments to the beginning of the running of the delay for a suspensive appeal.

We hold that the attempted execution of the judgment herein was premature and constituted a wrongful execution of a judgment which was not executory. The sheriff’s sale was not legally authorized and, therefore, it is null and void and without legal effect.

The commission issued by the clerk of court directing the sheriff to sell the property at public auction is likewise premature, and also must be set aside as null and void.

Although the trial court held the judicial sale to be invalid, it upheld the validity of the partition judgment.

The basis for the claim of nullity is that there was an invalid default judgment rendered against the defendants in the partition proceeding. The opponents contend that the evidence submitted at the trial of the confirmation of default was legally insufficient to support a judgment. They complain that there is no evidence to establish title in the persons named in the judgment. An examination of the record reveals that there were introduced into evidence certain documents concerning title to the property, such as a sale from Odeia Cheramie Pierce to Numa Guidry of a ttíh interest in the subject property. There was also filed a copy of the Judgment of Possession in the Succession of Andrew A. Chera-mie, August 19, 1955. The opponents do not question the accuracy of ownership or the interest of any of the parties named in the default judgment. They do not claim that the ownership and the undivided interests set out in the judgment are incorrect. In a partition suit it is unnecessary for a plaintiff to establish a complete chain of title, both to himself and the defendants, where the respective interests are not denied. It is not necessary that forced heirs have their ownership recognized by a judgment of possession as a prerequisite to bringing a partition proceeding, particularly where there is no genuine dispute over title. The complaint that the entire partition proceedings are invalid because of the failure of the heirs to file an inheritance tax return as required by LSA-R.S. 47:2411 is without merit. The jurisprudence has established that a failure to comply with inheritance tax laws prior to the heirs taking possession of inherited property does not make their ownership invalid; it is valid, but the heirs have taken possession subject to the inheritance tax. Bonvillain v. Richaud, 153 La. 431, 96 So. 21 (1923).

It is clear from the record as a whole, and particularly the “Joint Stipulation of Facts”, that the partition judgment is factually correct in all respects. The ownership of the subject property and the undivided proportional interest of each co-owner, as shown opposite their individual na,mes, is accurate. There are no other owners or claimants. There is no contest at all that the property is not divisible in kind, and that it must be partitioned by licitation. Neither is there a controversy as to any material fact. The opponents have presented no evidence to support their assertion that the judgment should be annulled. There is no proof that the trial judge did not have before him adequate legal evidence on which to base a confirmation of the default judgment based upon the evidence presented to him on November 5, 1974. That judgment is valid and there are no grounds for annulling it.

For the reasons assigned, the judgment of the trial court is affirmed. The costs are to be shared equally by the plaintiffs-appellants and the defendants-appellees.

AFFIRMED.

LOTTINGER, Judge,

dissenting and concurring opinion.

I concur with that portion of the majority’s opinion that affirms the validity of the partition judgment, however, I respectfully dissent from the affirmance by the majority of the Trial Court judgment setting aside the judicial sale.

Inasmuch as notice of the partition judgment had not been served on the domiciliary served defendants in the partition suit, the partition judgment was not executory as to those defendants at the time of the judicial sale, the appeal time not having expired.

After much extensive research, no cases could be found that were directly on point.

In support of their position of setting aside the judicial sale because the judgment was not executory, the majority cites: Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3rd Cir. 1969); and Boudreaux v. Allstate Finance Corporation, 217 So.2d 439 (La.App. 1st Cir. 1968). These cases were either injunctions to arrest the execution of a writ or a suit to dissolve. Importantly the judicial sale had not taken place.

More in line with the facts of this case, though not directly on point is Alfano v. Franek, 159 La. 498, 105 So. 598 (1925), wherein the court said:

“A sale made under the execution of a writ or process prematurely issued cannot be annulled solely on that ground.
“Conceding, therefore, that the sheriff was not authorized to advertise and sell the property until the judgment of this court had been returned and filed in the lower court, it was the duty of appellants to have taken the necessary steps to prevent the said sale. They could not remain silent, permit the execution of the process to go forward, and then, after the sale, be heard to say that the execution and sale were premature.”

In the instant case, the judicial sale was duly advertised in the official journal of the parish, and took place with the defendants doing nothing to stop it. They should not now be heard to complain.

Since notice of judgment had not been served, the appeal time as to some defendants had not yet run, but had run as to those personally served. As to those domi-ciliarily served, they could and did appeal. The majority affirms the judgment of partition, but yet in essence orders another sale, thus granting to those defendants a second chance.

The better rule is that expressed in Alfa-no, supra, in that “a sale made under the execution of a writ or process prematurely issued cannot be annulled solely on that ground.”

For these reasons I concur in part and dissent in part.

      . The record also reflects that domiciliary service was made on Patricia Cheramie.


author: MARVIN, Judge.

text:
    LOUISIANA & ARKANSAS RAILWAY COMPANY, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, Defendant-Appellee.
    No. 13159.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.

      Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for plaintiff-appellant, Louisiana & A. Ry. Co.
    Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for defendant-appel-lee, Chicago, R. I. & P. R. Co.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff (L&A) appeals from the rejection of its demands for property damage arising out of a head-on collision between its engine and an engine of defendant (Rock Island). We affirm the trial court.

By agreement, Rock Island uses L&A track between Alexandria and Winnfield to reach its own track which extends northerly from Winnfield. The agreement provides that the railroad solely at fault in a collision between engines or trains shall be responsible for the entire loss. It also provides that each railroad shall bear its own loss in case the collision is caused by the fault of both railroads or in ease the cause of the collision is so “concealed” that fault cannot be determined. The Operating Rules of L&A also apply to Rock Island trains which use the L&A track.

The Operating Rules provide in part that “. . . within yard limits second and inferior class trains, extra trains and engines must move at restricted speeds.” Restricted speed is defined as a speed at which a train “. . . proceed[s] prepared to stop short of a train, engine, obstruction or switch not properly lined.” The L&A Timetable also contains operating rules which are pertinent. It provides in part:

“Within restricted speed territory, yard engines, locals and dodgers, will keep informed of through train movements and will clear main track on the approach or if practical before the approach of through train movements, avoiding all delay possible.”

For a number of years each railroad has operated a daily train which runs northerly through Winnfield. The Rock Island train follows close behind the L&A train. Once the Rock Island train reaches Winnfield, it enters on its own track, proceeds to El Dorado, Ark., and then returns through Winnfield to Alexandria.

The collision complained of occurred in the Winnfield yard of L&A in twilight about 7:30 p.m. when it was rainy and foggy. Shortly after the L&A northerly train had passed through the Winnfield yard, an L&A dodger or switch engine entered onto the main track pulling 16 cars loaded with wood chips to switch these cars to storage tracks within the yard. At the same time, the northerly Rock Island train (three diesel engines pulling 44 cars and a caboose) was approaching or entering the Winnfield yard on the main track. The two trains collided some 3,100 feet north of the southerly limits of the Winnfield yard. The engineer on each train had unobstructed visibility of at least 1,100 feet, except of course as affected by the fog and rain. Each train was thrown into emergency at about the same time when its respective engineer saw or was told of the other train.

The lower court found that both trains were at fault in contributing to the cause of the collision. The record supports the lower court’s findings (1) that the Rock Island train failed to reduce its speed in accord with the restricted speed rule when it approached and entered the Winnfield yard and (2) that the L&A train failed to clear the main track (or by implication entered upon the main track when it was unsafe to do so) at a time when the approach of the Rock Island train was imminent. The lower court stated that L&A’s “. . . failure to clear the main track for [Rock Island’s] through train . [in violation of the Timetable rule] was a contributing cause [of] the accident.”

L&A complains that the lower court erred (1) in not finding that the sole cause of the collision was Rock Island’s violation of the restricted speed rule and (2) in applying the rule of the Timetable (yard engines will clear main track on the approach of a through train), when the Rock Island train was not a “through train” within the meaning of the Timetable. The Operating Rules and the Timetable have been reviewed with the other evidence in the record. These rules are expressly designed for the paramount, and often expressed, purpose of the safe operation of the railroad and the protection of people and property. In this context, these rules are in harmony with our general law of negligence or fault as set forth in our civil code articles and cases applying and interpreting them.

The term through train is not defined in the Operating Rules or Timetable. An officer of L&A testified that the Rock Island train was not a through train because it did not “operate” from one end of the district (Pineville Junction) to the other (Minden, La.), as did the L&A train which it was following. L&A also complains that Rock Island did not plead or make an issue out of the Timetable provisions until the case was briefed in the lower court.

The rules which are before us, as well as the fault concept of our law, clearly establish certain duties on each train here involved, whether the Rock Island train is or is not technically a through train. The Rock Island train, proceeding through the Winnfield yard on the main track, was clearly under a legal duty to slow to a speed which would have been reasonably safe under the existing circumstances. There was a concurrent legal duty on the L&A train, switching cars in the yard, to avoid obstructing or entering upon the main track during the time when it was, or should have been known that a train was going to be proceeding through the yard on the main track. Each respective duty exists whether the basis therefor is the rule, the law of negligence, or both. Each train violated its duty to the other, whether or not the Rock Island train is technically a through train.

Even according to the reasoning of the L&A official, the Rock Island train could be said to be a through train. It traversed the “district” (from Pineville Junction to Min-den) because it proceeded from Alexandria into the State of Arkansas, albeit on its own track north of Winnfield. But should we agree arguendo, that the Rock Island train was not technically a through train, we find no error on the part of the lower court in concluding the L&A yard train should have known of the approach of the Rock Island train through the yard on the main track and should have cleared the main track.

Where the defendant’s pleading gives fair notice to the plaintiff that the plaintiff’s negligence is at issue, even as the sole cause of the accident, the defense of contributory negligence is deemed properly at issue, notwithstanding that it has not been affirmatively set forth as an affirmative defense. The issue of L&A’s negligence was raised by the pleadings here. C.C.P. Art. 1005; Cain v. Houston General Insurance Company, 327 So.2d 526 (La.App.2d Cir. 1976), cert. denied; Paxton v. Ballard, 289 So.2d 85 (La.1974).

The agreement between the litigants adopts our law of contributory negligence. We find no error in the lower court’s determination of factual issues holding both litigants at fault in causing the collision. At appellant’s cost, judgment is

AFFIRMED.

      . The Timetable provision requires yard engines, locals and dodgers, to be aware of through train movements on the main track for the purpose of avoiding possible delay to trains on the main track. Conversely, the Rock Island train was certainly not a yard engine, a local or a dodger, and it had the right, under the agreement (dated in 1925) and the manner in which it had operated for several years, to proceed through the Winnfield yard on its daily journey.

      . Testimony conflicted as to whether or not the L&A train had come to a stop before the collision. The stop, if it did occur, was only a second or so before the collision. The trial court did not specifically resolve this factual conflict apparently (and correctly, in our opinion) because the proximity in time of the alleged stop and the collision made it immaterial on the ultimate issue.


author: BOLIN, Judge.

text:
    M. A. BLALOCK and Boyce McConathy Blalock, Plaintiffs-Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13161.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.
    Writ Refused June 8, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff s-appellants.
    Hudson, Potts & Berstein by Jesse D. McDonald, Monroe, for defendants-appel-lees.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

The trial court held that an action for damages against a manufacturer-retailer of an air-conditioning unit which malfunctioned, causing fire damage to plaintiffs’ residence, prescribed in one year from the date plaintiffs had actual or constructive knowledge that the unit was defective. We affirm this ruling.

Plaintiffs’ residence was damaged by fire on September 29, 1972, and they sued their fire insurer on September 14, 1973. The insurer filed a third party demand against Sears, Roebuck & Company on February 1, 1974, alleging the fire was caused by a defective air-conditioning unit manufactured and sold by Sears to plaintiffs.

Subsequently plaintiffs compromised and settled the claim against their insurer and on September 16, 1974 plaintiffs amended their original petition to name Sears as a defendant. In response to the demands of plaintiffs and of the third-party plaintiff, Sears filed a plea of prescription of one year. From judgment sustaining the prescriptive plea and rejecting the demands of all parties, only original plaintiffs appeal.

We find the trial judge was correct in finding the applicable prescriptive period to be one year rather than ten years for breach of contract. In their amended petition plaintiffs alleged that the fire was caused by a defective air-conditioning unit purchased by plaintiffs from Sears, and that the existence of this defect constituted a breach of the implied warranty of merchantability from Sears to plaintiff purchasers. Plaintiffs’ action against Sears lies in redhibition and is governed by the one year prescriptive period provided in Louisiana Civil Code Article 2534. Crowley Grain Drier, Inc. v. Fontenot, 132 So.2d 573 (La.App. 3d Cir., 1961); Rey v. Cuccia, 298 So.2d 840 (La.1974); Stelly v. Gerber Products Co., 299 So.2d 529 (La.App. 4th Cir., 1974); Cotton States Chemical Co., Inc. v. Larrison Enterprises, Inc., 342 So.2d 1212 (La.App. 2d Cir., 1977).

Sears, as manufacturer of the air-conditioning unit, was presumed to know of any defect in the unit. Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971) and cases cited. Therefore, the prescriptive period did not begin to run until- the defect was discovered by plaintiffs. Rey v. Cuccia, supra; La. Civil Code Articles 2534 and 2546. The type of knowledge that is required to begin the running of prescription is discussed in Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970):

. . [I]t is not necessary that the party have actual knowledge of the conditions as long as there is “constructive notice.” Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.

The trial court found the occurrence of the fire constituted notice to plaintiffs of the alleged defect in the air-conditioning unit sufficient to commence running of the one year prescriptive period. This finding is amply supported by the evidence. Therefore, the one year period began to run from the date of the fire and expired prior to the date plaintiffs initiated their claim against Sears.

The judgment is affirmed. Appellants are assessed with the cost of this appeal.


author: CULPEPPER, Judge. STOKER, Judge,

text:
    Jane Porter MOON, Plaintiff and Appellee, v. Theodore L. MOON, Defendant and Appellant.
    No. 5782.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearings Denied May 10, 1977.
    Writs Refused July 1, 1977.

      Hunt, Godwin, Painter & Roddy by Fred R. Godwin, Lake Charles, for defendant and appellant.
    Kimball, McLeod & Dow by Robert L. Dow, Lake Charles, for plaintiff and appel-lee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit by Mrs. Jane Porter Moon for a divorce from Col. Theodore L. Moon (USAF Ret.) on the grounds of separation for over one year without reconciliation following rendition of a judgment of separation in favor of Mrs. Moon on the grounds of Col. Moon’s cruelty. Mrs. Moon also seeks alimony after divorce, child support, and reformation or supplementation of a post-separation community property settlement. The property settlement agreement did not mention Col. Moon’s Air Force retirement benefits, and Mrs. Moon now seeks her share of these benefits.

The trial court rendered judgment granting the wife a divorce, alimony and child support. In addition, the judgment supplemented the community property settlement agreement by awarding the wife one-half of that portion of Col. Moon’s Air Force retirement pay constituting community property. The trial judge found the retirement pay was omitted from the property settlement agreement because of mutual oversight by the parties.

Col. Moon appealed only from those portions of the judgment granting his wife alimony, awarding her a portion of his Air Force retirement pay, and ordering him to pay all costs of court.

The substantial issues are: (1) May a husband and wife stipulate during separation proceedings that a judgment of separation based on the husband’s fault will not be determinative of the issue of the wife’s freedom from “fault” for the purpose of determining her entitlement to alimony after divorce under LSA-C.C. Article 160? More specifically, is such a stipulation prohibited by the decision of our Supreme Court in Fulmer v. Fulmer, 301 So.2d 622 (La.1974)? (2) If the wife obtains a judgment of separation on the basis of the husband’s fault and later files a suit for divorce based on non-reconciliation after the separation, may the husband defend against the wife’s claim for alimony after divorce by alleging and proving the wife committed adultery or other serious acts of fault after the judgment of separation was rendered? More specifically, does the decision of our Supreme Court in Fulmer v. Fulmer prevent litigation of the wife’s post-separation fault in all cases where the wife has previously obtained a judgment of separation based on the husband’s fault? (3) Did the trial court err in concluding the failure of the parties to expressly provide for partition of Col. Moon’s Air Force retirement benefits in the community property settlement agreement was a mere “omission” within the meaning of LSA-C.C. Article 1308, which omission could be the subject of a “supplementary partition” of the community property under the terms of LSA-C.C. Article 1401?

FACTS

On February 1, 1974, Mrs. Moon filed a suit for separation on the grounds of Col. Moon’s cruelty. Col. Moon denied Mrs. Moon’s allegations of cruelty and reconvened for separation on the grounds of abandonment. Later, Col. Moon amended his answer to allege cruelty on the part of Mrs. Moon, urging mutual fault as a defense to the separation.

The separation suit was set for trial on June 6, 1974. On that date, Col. Moon attempted to amend his reconventional demand to include an action for divorce on the grounds of his wife’s adultery. Allegedly, Col. Moon did not discover his wife’s adultery until June 4, 1974. The trial court denied the husband’s request to file the amendment concerning adultery, but reserved to Col. Moon the right to proceed thereafter, without prejudice, for a divorce on grounds of adultery.

Col. Moon chose not to oppose his wife’s suit for a separation on the grounds of cruelty. Rather than litigating the issue of the wife’s fault, the attorneys for both parties entered into a stipulation in open court on June 6, 1974, the terms of which are incorporated into the judgment of separation rendered by the trial court on that same date. The pertinent provision of the judgment of separation states:

“IT IS FURTHER ORDERED that this judgment is not determinative of the issue of Plaintiff’s freedom from fault for purposes of eligibility for alimony after divorce under Article 160 of the Louisiana Civil Code as that issue has not been litigated in these proceedings, and this judgment shall not be the basis for a plea of Res Judicata or Estoppel by judgment in any future proceeding by Plaintiff wherein she seeks to obtain alimony after a final divorce under Article 160 of the Louisiana Civil Code.”

On June 10, 1975 Mrs. Moon filed the present suit for a divorce based upon separation for over one year after the judgment of separation. Mrs. Moon later amended her petition to include demands for child custody, child support, alimony after divorce and reformation of the community property settlement.

Col. Moon denied all of his wife’s allegations and specifically urged that she was not entitled to alimony because she was not free from fault. In two supplemental answers and in a reconventional demand for divorce, Col. Moon averred that his wife was not free from fault because she committed adultery. The allegations of adultery are quite specific, stating the times, places and circumstances of several acts of adultery both before and after the judgment of separation on June 6, 1975. In response to Col. Moon’s answer and recon-ventional demand, Mrs. Moon filed, as permitted by LSA-C.C. Article 964, a motion to strike Col. Moon’s allegations of her fault. The trial court granted Mrs. Moon’s motion to strike and refused to allow litigation of either pre-separation or post-separation fault.

The basis of the trial judge’s ruling was that under Fulmer v. Fulmer, supra, Col. Moon could not allege either pre-separation or post-separation fault as a defense to Mrs. Moon’s claim for alimony after divorce.

STIPULATION REGARDING LITIGATION OF FAULT

The first question is whether the husband and wife may stipulate that a determination of the husband’s fault, made in a judgment of separation, will not be determinative of the wife’s “freedom from fault” for purposes of determining her eligibility for alimony under Article 160?

Fulmer v. Fulmer, supra, did not involve a stipulation such as the one at issue here. However, in Trahan v. Trahan, 340 So.2d 676 (La.App. 4th Cir. 1976) the court considered a similar attempt to avoid by stipulation the holding in Fulmer. In Trahan, the stipulation was not entered into during, the separation proceedings, as in the present case, but rather was entered during the subsequent divorce action by the wife on the grounds of living separate and apart without reconciliation for one year after the judgment of separation. The stipulation was made a part of the judgment of divorce and stated: “It is further ordered, adjudged and decreed that by consent of the parties herein, the question of fault between the parties is pretermitted at this time.”

After the judgment of divorce was rendered in favor of Mrs. Trahan on April 15, 1974, Mr. Trahan filed on May 6, 1974 a “Petition To Determine Fault”. The trial judge held the consent judgment pretermit-ting the question of fault effectively reserved the husband’s right to have the question of fault reconsidered after the divorce judgment. Our brothers of the Fourth Circuit reversed, holding that under Fulmer v. Fulmer, supra, the stipulation was invalid. The appellate court stated: “But in this case, the litigants cannot require the courts to relitigate a matter that has been previously adjudicated. The purpose of ruling the litigants are entitled to one hearing on the question of preseparation fault is to achieve judicial economy.” (Emphasis supplied) The court thus concluded that under Fulmer relitigation of pre-separation fault is barred, and the litigants cannot contract to alter the Supreme Court’s pronouncement on this point. We agree with this holding by our brothers of the Fourth Circuit. However, we are careful to point out for purposes of clarity that the holdings in both Fulmer and in Trahan are restricted to pre-separation fault. In neither of these eases was the court concerned with post-separation fault.

We therefore hold in the present case that the trial judge correctly sustained Mrs. Moon’s motion to strike all allegations of pre-separation fault on her part. However, for the reasons more fully explained hereinafter, we conclude the trial judge erred in striking Col. Moon’s allegations as to post-separation fault.

POST-SEPARATION FAULT

If the wife obtains a judgment of separation on the basis of the husband’s fault and later files a suit for divorce on the basis of non-reconciliation for the prescribed time after the separation, may the husband defend against the wife’s claim for permanent alimony by alleging and proving the wife committed adultery or other serious fault subsequent to the judgment of separation? This issue is squarely presented by the present case.

In order to receive alimony, the wife must not have been “at fault”. La.C.C. Article 160. The word “fault” has been defined as “acts of commission or omission on the part of the wife violative of her marital duties and responsibilities, which constitute a contributing or proximate cause of the separation and continuous living separate and apart, the grounds for the divorce.” Felger v. Doty, 217 La. 365, 46 So.2d 300 (1960). In Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1967), we quoted the definition of “fault” from the Felger case, and added: “The essence of this definition is that fault is conduct which constitutes grounds for separation or divorce, other than mere living separate and apart for a specific period of time.” (Emphasis added) Thus, under the definition of fault stated in the Smith case, it is clear that the wife’s post-separation adultery, or other serious fault constituting grounds for divorce, may be urged as an affirmative defense to the wife’s claim for alimony.

In Smith, we made it clear that the wife’s fault may be urged as a defense to her claim for alimony even though the wife obtains the divorce. After discussing Article 160 (as amended by Act 1964, No. 48, Sec. 1), and the comments of the La. Law Inst, with reference to Article 160, we held in Smith : “The wife at fault should not recover alimony even though she obtains the divorce.” In Smith, the wife had obtained a divorce based on the husband’s adultery.

Before the Fulmer case, it is clear that the wife’s post-separation fault could be raised as a defense to her claim for alimony after divorce. In our opinion, the Fulmer case did not change the law in this regard. We are supported in our conclusion by Webster v. Webster, 308 So.2d 302 (La.App. 1st Cir. 1975). In the Webster case, the wife obtained a judgment of separation based on the husband’s fault. Thereafter, the husband obtained a judgment of divorce in a chancery court of the State of Arkansas. The judgment rendered by the Arkansas court was made executory in Louisiana, subject to a stipulation by the parties that the judgment of divorce would not affect the wife’s right to alimony under Article 160 of our Civil Code. After discussing the Fulmer case at length, the court in Webster concluded:

“We interpret the foregoing, [i. e., the Fulmer case] to mean that once a wife’s freedom from fault [is established] in a separation proceeding, the only issue concerning fault of the wife in a subsequent divorce proceeding is whether the wife has been guilty of fault subsequent to the decree of separation.” (Emphasis added)

Thus, the Webster court recognized that even after the Fulmer case, the wife’s post-separation fault may form the basis of a defense to her claim for permanent alimony.

A careful analysis of the Fulmer case reveals that it was intended to effect only the issue of relitigation of pre-separation fault, not post-separation fault. The initial question in this analysis is, what is the effect of a judgment of separation obtained by the wife on the basis of the husband’s fault? The Fulmer court answered this question as follows: “. . . the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.” 301 So.2d at 629. Nowhere in Fulmer does the court say the judicial determination of pre-separation fault bars the husband from defending his wife’s claim for post-divorce alimony on the basis of her post-separation fault. In fact, the following language shows the Fulmer court was careful to limit the decision’s application to pre-separation fault:

“As to the pre-separation fault, it should constitute a conclusive determination which equally bars re-litigation of the issue of fault, when alimony is sought under Article 160, whether the divorce is based either on La.R.S. 9301 or 9302.” 301 So.2d at 629 (Emphasis added)

The only mention of “post-separation fault” in the Fulmer opinion appears in the following passage:

“Thus, where a judicial separation is decreed as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or wife is or is not at fault, for purposes of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion is, of course, not applicable if the divorce is sought for post-separation fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.” 301 So.2d at 629 (Emphasis added)

Considering the Louisiana separation and divorce laws as a whole, we believe our holding is consistent with the intent of the legislature. The post-separation waiting period of LSA-R.S. 9:302 is designed principally to give the spouses a chance to reconcile their differences and resume their marriage. If serious post-separation fault were not a defense to the wife’s claim for alimony after divorce, the intent of the legislature in providing the waiting period of LSA-R.S. 9:302 would be subverted. Adultery is a serious form of fault, and its occurrence after the judgment of separation would probably lessen the chances of a reconciliation.

Another probable effect of holding the wife’s serious post-separation fault cannot be raised as a defense to her claim for permanent alimony in a suit by the wife for divorce one year after a judgment of separation would be to encourage suits by husbands for divorce on the grounds of the wife’s post-separation fault. We do not think the law should force the husband to seek a divorce on the grounds of serious post-separation fault in order to avoid payment of alimony after divorce. Such a holding could encourage divorce and discourage reconciliation. With the possibility of alimony payments looming ahead, even a husband who desires a reconciliation and resumption of the marriage could be moved by economic considerations to seek a divorce on account of the wife’s post-separation fault.

Our holding in this case does not contravene the considerations of judicial economy underlying the Fulmer decision. Fulmer was aimed at stopping re-litigation of pre-separation fault. It was not intended to prevent litigation of post-separation fault, where such litigation occurs in the course of the husband’s defense against the wife’s alimony claim. It would be incongruous, indeed, to hold that a judicial determination of the husband’s pre-separation fault is determinative of the issue of the wife’s post-separation fault.

Mrs. Moon argues that the decision of our Supreme Court in Tortorich v. Maestri, 146 La. 124, 83 So. 431 (1919) and our decision in Jones v. Floyd, 154 So.2d 604 (La.App. 3rd Cir. 1953) prevent the husband from raising the issue of her post-separation fault as a defense to her claim for permanent alimony. We do not agree. The Floyd case holds, and Col. Moon concedes, that after a suit for divorce under LSA-R.S. 9:302 has been filed by one spouse, a reconventional demand by the other spouse for a divorce on other grounds, including adultery, states no cause of action. The Jones decision is founded on the absolute statutory right of a spouse to obtain a divorce if he timely files suit for divorce based upon non-reconciliation.

In the Jones case, we explained that evidence of the husband’s adultery, which the wife sought to introduce, was totally irrelevant to the husband’s action for divorce based on LSA-R.S. 9:302. This statement is not in conflict with our holding in the present ease. To understand why there is no conflict, the fundamental distinction between the nature of the actions for a divorce under LSA-R.S. 9:302 and the wife’s claim for alimony after the divorce must be recognized. Evidence of the wife’s fault, either before or after the judgment of separation, is irrelevant in an action for divorce under R.S. 9:302. Jones v. Floyd. Such a divorce will be granted regardless of the wife’s fault. But if the wife makes a claim for permanent alimony in divorce proceedings under R.S. 9:302, evidence of her post-separation fault is relevant. Post-separation fault is an affirmative defense to the wife’s claim for post-divorce alimony in such a case.

Furthermore, we note that post-separation fault was not alleged as a defense to a claim for alimony in either the Jones case or the Tortorieh case.

We conclude that the trial judge erred in sustaining Mrs. Moon’s motion to strike the allegations of Col. Moon’s answer urging Mrs. Moon’s post-separation fault as a defense to her claim for alimony after divorce. The case must be remanded for trial of these issues.

THE COMMUNITY PROPERTY SETTLEMENT AGREEMENT

Having concluded that this case must be remanded to the trial court for a determination of the wife’s post-separation fault for purposes of alimony under Article 160 of our Civil Code, we move now to the question of whether the trial court erred in supplementing the community property settlement by awarding the wife one-half of the community property portion of the husband’s military retirement pay.

In Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir. 1975) we followed the jurisprudence of several other community property states in holding that United States military retirement pay is divisible as a community asset under certain circumstances. The portion of the retirement pay which is community property is expressed as a fraction, represented by the number of years the parties were married while the husband was on active military duty over the total number of years of military service.

Col. Moon entered military service on March 21, 1940. He married Mrs. Moon on June 13, 1954. He retired from the Air Force on June 30, 1964. The community was dissolved on February 1, 1974, and the judgment of separation was rendered on June 6, 1974.

Under the formula laid down in the Swope case, 10/24th of Col. Moon’s retirement pay is community property. The numerator of this fraction, 10, represents the total number of years which the parties were married during the time that Col. Moon was in active military service. The denominator of the fraction, 24, represents the total number of years which Col. Moon was on active military duty. Mrs. Moon is entitled to one-half of the community property portion of the retirement benefits. Therefore, Mrs. Moon is entitled to 5/24th of the retirement benefits.

In the present case, the parties entered into a written community property settlement agreement about three months after the legal separation. Both parties were represented by counsel during the rather extensive negotiations preceding perfection of the property settlement agreement. Both parties were aware of Col. Moon’s retirement pay, but both thought the retirement pay was Col. Moon’s separate property. Neither party discussed the retirement pay with his attorney and the retirement pay was not mentioned during negotiations preceding the settlement. Considering these facts, the trial judge concluded that the failure to include the retirement pay in the settlement agreement was a “mere omission” within the meaning of Civil Code Article 1401. The trial court then ruled in favor of Mrs. Moon, supplementing the partition agreement by awarding her 6Mh of Col. Moon’s retirement pay. As authority for his decision, the trial judge cited our decision in Langlinais v. David, 289 So.2d 343 (La.App. 3rd Cir. 1974). For the reasons which follow, we think the trial court committed no error in supplementing the community property settlement agreement.

The facts of the Langlinais case are very similar to those of the present case. In Langlinais, as in the present case, the husband and wife entered into a community property settlement agreement following their legal separation. The agreement in Langinlais specifically provided for a division of certain assets, but did not mention the husband’s State Police retirement benefits. The trial court in Langinlais noted that the wife knew of her husband’s plan to retire before she entered the community property settlement agreement and concluded that she waived her claim to the retirement fund by failing to list it as an asset in the community property settlement agreement. We found manifest error in the trial court’s conclusion, reasoning that the failure to mention the fund evidenced a “mutual oversight”. We then held that the oversight concerning the retirement fund was a “mere omission” within the meaning of Civil Code Articles 1308 and 1401. Citing those two code articles as authority, we allowed a “supplementary partition” of the community property agreement. The wife was awarded her community share of the husband’s State Police retirement benefits.

The trial court in the present case correctly concluded that the Langlinais case, and the codal provisions cited there are authority for a supplementary partition in the present case. The court committed no error in awarding Mrs. Moon 5/24th of Col. Moon’s military retirement benefits.

Col. Moon concedes that 5/24th is the proper division of the retirement benefits, if we hold that the wife is entitled to her share of the community property portion of his U.S. Air Force retirement benefits.

The husband attempts to distinguish Lan-glinais on the grounds that the property settlement agreement in that case did not contain a residual disposition of all unlisted assets, while the property settlement in the present case does.

The settlement agreement in the present case is drafted as a conveyance from Mrs. Moon to Col. Moon of all community property except a specific list of assets to be retained by Mrs. Moon. One paragraph of the property settlement agreement conveys to Col. Moon:

“All movable property formerly belonging to the community of acquets and gains including all household furnishings, fixtures and appliances . . . [located at the family home] . . . but excepting the movable property formerly belonging to the community of acquets and gains which are specifically conveyed hereafter to JANE MOON, born Porter.”

The agreement does not list the retirement benefits, an incorporeal movable belonging to the community, as one of the assets being conveyed to Jane Moon.

When considered out of context, the quoted portion of the settlement agreement might be considered a residual disposition broad enough to include Col. Moon’s Air Force retirement benefits. We think, however, the parties did not intend the retirement provisions to be affected at all by the settlement agreement. The previously quoted language was, in our opinion, intended to cover only odds and ends of household furnishings and other personal property which the parties considered to be community property. Both parties testified they thought the pension was separate property. By mutual oversight, the parties simply omitted the pension from the list of community property to be divided or conveyed.

Having concluded the trial court did not err in supplementing the community property settlement agreement, we need not consider Mrs. Moon’s alternative allegations that the agreement should be rescinded for error of fact and law and lesion.

The husband argues that our previous decision in Swope v. Mitchell, supra, which classifies military retirement benefits as community property under certain circumstances, is an unconstitutional application of our law in that (1) it violates the privileges and immunities provision of Article 4, Sec. 1 of the U.S. Constitution and (2) it violates the equal protection clause of the 14th Amendment of the U.S. Constitution. The husband cites no cases to support his argument, nor do we find any. The arguments are without merit.

The “privilege” which Col. Moon asserts is abridged is the right to receive the full amount of his U.S. Air Force retirement pay. First, this right is not the type of basic, fundamental right of citizenship protected by the privileges and immunities clause of the U.S. Constitution. U. S. v. Wheeler, 254 U.S. 281, 41 S.Ct. 133, 65 L.Ed. 270 (1920); the Slaughter House cases, 16 Wall (83 U.S.) 36, 21 L.Ed. 394 (1873). Second, the supremacy clause of the U.S. Constitution does not prevent a state from classifying military retirement benefits as community property. In Re Marriage of Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449 (1974), certiorari denied 419 U.S. 925, 95 S.Ct. 41, 42 L.Ed.2d 48.

Col. Moon’s argument with respect to equal protection is that he would “receive less benefits from his Federally created rights than would other members of the class who are not subject to Louisiana law.” No further elaboration is offered to support this contention.

In Louisiana, community property laws apply equally to all retired servicemen in situations similar to that of Col. Moon. Apparently, Col. Moon contends that he is denied equal protection because he is subject to the laws of a community property state, while other servicemen who retire elsewhere are not. The equal protection clause does not require comparison of the laws of the various states. All that is required is that similarly situated persons within one state receive equal treatment under its laws.

TAX LIABILITY ON RETIREMENT BENEFITS

Col. Moon argues the judgment of the trial court, which orders him to pay V24 th of the gross amount of his retirement pay to his wife, is in error because it places the entire tax burden on him. There is no merit in this argument. The wife, Mrs. Moon, is entitled by virtue of our community law to s/24th of the gross amount of Col. Moon’s Air Force retirement pay. Any dispute about the tax burden on the retirement benefits is between the parties and the taxing authorities. Taxation issues are not properly before us in the present divorce proceedings.

ASSESSMENT OF COSTS IN THE TRIAL COURT

Finally, Col. Moon contends that the trial court erred in assessing costs of the proceeding against him. We find no error in this assessment. The trial court did not abuse the discretion granted it by LSA-C.C.P. Article 1920.

For the reasons assigned, the judgment of the trial court granting Mrs. Moon alimony after divorce is reversed and the case is remanded to the district court for the limited purpose of allowing the husband to litigate the issue of his wife’s post-separation fault for purposes of determining her eligibility for alimony under Article 160 of our Civil Code. Otherwise, than as reversed and remanded, the judgment appealed is affirmed. All costs of this appeal are assessed against Mrs. Moon.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

STOKER, J., concurs in part, and dissents in part and assigns written reasons.

STOKER, Judge,

concurring in part and dissenting in part:

I am in agreement with all points of the majority opinion except that portion pertaining to the foreclosing of litigation of pre-separation fault where there has been a stipulation reserving that issue. I feel that the stipulation entered into in this ease, recognized by the separation judgment with specific reservation in the judgment, should be honored. I do not think Fulmer v. Fulmer, 301 So.2d 622 (1974), necessarily prohibits such stipulations and there are excellent policy reasons for permitting them. Trahan v. Trahan, 340 So.2d 676 (La.App. 4th Cir. 1976), is distinguishable for the reason that the stipulation in Trahan was made when the divorce action came up, and not at the time of the separation, as was the case here. Therefore, I concur in the majority opinion except as noted here, and as to the issue noted, I respectfully dissent.


author: HOOD, Judge.

text:
    Even LANDRENEAU, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 5796.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

    DeVillier & Ardoin by David S. Cook, Eunice, for plaintiff-appellant.
    Dubuisson, Brinkhaus & Dauzat by Edward B. Dubuisson, Lewis & Lewis by James T. Guglielmo, Opelousas, for defendant-appellee.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.

      STOKER, J., voted to grant a rehearing of defendant-appellant.

   HOOD, Judge.

Even Landreneau instituted this suit against The Travelers Insurance Company, seeking to recover workmen’s compensation benefits, penalties and attorney’s fees. The trial court rendered judgment in favor of defendant, and plaintiff appealed.

The determining issue presented here is whether plaintiff’s present disability resulted from an accident which arose out of or in the course of his employment.

Landreneau sustained a heart attack, diagnosed as a coronary occlusion with a myocardial infarction, between 6:00 and 7:00 A.M. on Friday, September 14, 1973. He was at his home getting dressed to go to work when that attack occurred. He has been totally disabled since that date.

The evidence shows that plaintiff had been employed by Manuel Truck and Equipment Company, Inc., as head of its parts department, for more than 15 years before he became disabled. His regular working hours were from 7:00 A.M. until 6:00 P.M. He performed no heavy manual labor, and we find that the duties of his employment required little, or at least only a moderate amount of, physical exertion on his part. He had a helper, and most of the lifting or moving of heavy automobile or truck parts, such as batteries dr tires, was done by his helper or by other employees, although plaintiff occasionally did some lifting when no one else was available to do it. He was in an air conditioned building during at least 80 to 90 per cent of his working time.

Plaintiff testified that he left his employment and returned to his home about 6:30 P.M. on Thursday, September 13, 1973, after an uneventful day. He had done no lifting on September 13, or on any other day that week, and nothing had occurred on that day or during that week which required him to exert himself any more than he normally did on any other day. He did not feel any more fatigued that evening than usual, although he stated that he had had a “dragging” feeling for about 6 months. He slept well that night, and he arose about 6:00 the next morning, September 14, as he customarily did every morning. He proceeded to get dressed to go to work, but shortly before 7:00 A.M., after getting completely dressed except for his shoes, he began to feel ill. He thereupon went back to bed and his family doctor was called about 30 minutes later. The doctor determined that he had sustained an occlusion or an infarction while he was dressing that morning. He has not worked since that date, and defendant concedes that plaintiff is disabled.

Plaintiff was 50 or 51 years of age when the above incident occurred. He was obese and had been suffering from arteriosclerosis and hypertension, or high blood pressure, for at least 12 years before he became disabled. He, in fact, had been treated regularly for high blood pressure since 1961. He was a very nervous or tense person, and had been taking tranquilizers “off and on” because of that condition for several years. In December, 1968, he sustained a relatively severe heart attack, described as an “acute posterior infarction of the heart,” and as a result of that attack he was off work for one month and he performed only light duties for four or five months thereafter.

This suit was instituted on December 12, 1973. Plaintiff contends that the heart attack which he sustained on September 14, 1973, was the result of stress suffered during the course of his employment. He testified that he often took his work home with him mentally, meaning that he tended to worry about his job even when at home. He stated that he had been under greater mental stress since June, 1973, when his employer bought the stock of merchandise of another company, explaining that it became his responsibility to inventory the new stock and to merge it with the stock of parts previously owned by his employer.

The record shows that Landreneau sustained another heart attack in November, 1974, while this suit was pending.

Plaintiff has been under the treatment of Dr. J. J. Stagg, a general practitioner, since the date he sustained his second heart attack in 1973. Dr. Stagg, in fact, has been treating plaintiff for high blood pressure and for his heart condition since 1961. The doctor stated that there was a “possibility” that the stress of plaintiff’s work contributed to his present disability, but he refused to state that there was a “reasonable medical probability” of a causal connection between his job and his 1973 heart attack.

Dr. Benjamin O. Morrison, a specialist in internal medicine, treated plaintiff for a brief period of time, beginning October 30, 1973, while he was hospitalized. He felt that the mental stress plaintiff was under contributed to his eventual heart attack, but he testified that the stress or tenseness exhibited by plaintiff could have been caused by many factors not connected with his work. For that reason Dr. Morrison would not state that the stress of Landre-neau’s work was the probable cause of his infarction. He explained that there are “too many factors that can cause an infarction, not just you know, nervous stress.”

Dr. Rodney E. Landreneau, Jr., a general surgeon, treated plaintiff from April 1, 1974, until about May 28, 1974. He stated that plaintiff was a very nervous person, that the stress of his work made him more nervous, and that his nervousness did “contribute to his development of a coronary.” In response to the question of whether plaintiff’s heart attack was the direct result of his work, Dr. Landreneau testified:

“I don’t think it was a direct result of his work. I think it was a direct result of him having heart disease, hardening of an — the arteries in the coronary arterial system of his heart. I think this is a direct cause of his coronary occlusion. There are many contributing factors to the development of arteriosclerosis as far as we know now. The cholesterol level of the blood, hypertension, obesity, a stressful situation or working under a stressful situation and conditions. These are all factors. Also smoking. He was a heavy smoker. These are all contributing factors.”

Finally, plaintiff was examined by Dr. Lawrence P. O’Meallie, a specialist in cardiovascular disease, on November 1, 1974. Dr. O’Meallie was firm in his opinion that there was no causal relationship between plaintiff’s work and the heart attack which he sustained on September 14, 1973. He stated, “I do not believe his job caused his coronary disease, nor do I believe it caused his two myocardial infarctions.” He also testified, “I do not believe that Mr. Landre-neau’s occupation has anything to do with the development of his coronary arteriosclerosis and his two myocardial infarctions and his subsequent disability.”

On the basis of that evidence, the trial judge held “The evidence shows that plaintiff was stricken while at home before going to work one morning; I am unable to see how this can be considered an accident in the course of employment.” He thereupon rendered judgment rejecting plaintiff’s demands.

We have considered the medical testimony, and have decided that it fails to show a causal connection between plaintiff’s work and the heart attack which he-suffered on September 14, 1973. We also have concluded that plaintiff’s disability did not result from an accident which occurred during the course of his employment.

An “accident” is defined in the workmen’s compensation law as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury.” LSA-R.S. 23:1021(1). The term “injury,” as defined in that act, includes only “injuries by violence to the physical structure of the body.” LSA-R.S. 23:1021(7).

In the instant suit plaintiff was never subjected to a violent trauma, and no incident occurred while he was on the job which could be pointed to as the cause of his heart attack or as the beginning of his period of disability. Our courts have held, however, that under some circumstances a disabling injury may be said to have resulted from an “accident,” even though a violent trauma did not occur.

To constitute an accident within the meaning of the workmen’s compensation law, in cases where the work of the employee requires physical effort and exertion, it is not necessary that the injury from which disability follows be the result of a violent trauma. An accident may be said to have occurred if a diseased organ or part of the body gives way suddenly while the employee is discharging his usual and customary duties, provided that there was a causal relationship between the sudden giving way of that part of his body, his employment and his resulting disability. Blazier v. Georgia-Pacific Corporation, 301 So.2d 701 (La.App. 3 Cir. 1974); Satterwhite v. Zurich Insurance Company, 199 So.2d 429 (La.App. 1 Cir. 1967); Griffin v. Employer’s Liability Insurance Company, 186 So.2d 349 (La.App. 4 Cir. 1966); Gotte v. Cities Service Oil Company, 298 So.2d 920 (La.App. 3 Cir. 1974); Prater v. Liberty Mutual Insurance Company, 182 So.2d 805 (La.App. 3 Cir. 1966); Romero v. Otis International, et al., 343 So.2d 405 (La.App. 3 Cir. 1977).

We have found that in the present suit plaintiffs employment required very little physical effort or exertion. He was not on the job, and he thus was not discharging his usual and customary duties, when his heart attack occurred. And, the evidence fails to show a causal relationship between his employment and the sudden giving way of a part of his body. Plaintiff thus is not entitled to recover under the above rule.

The issue to be determined here is similar to that which was presented in Soileau v. Chet and Kenny’s Auto Parts, Inc., 337 So.2d 604 (La.App. 4 Cir. 1976). The Fourth Circuit Court of Appeal, in rejecting the plaintiff’s demand said:

“Had the heart attack occurred at work, or had it followed closely upon some identifiable beginning at work, plaintiff would recover. But we cannot disagree with the trial judge’s conclusion that work-causation was now shown...."

In Rachal v. Tennessee Gas Pipeline Company, 308 So.2d 459 (La.App. 3 Cir. 1975), which also involved a similar issue, we said:

“We further opine that even though plaintiff’s worry, frustration with his job, work load, and geographical movements with the company during the years between 1966 and 1970, were proven to have kept his blood pressure elevated, nevertheless these conditions did not constitute an ‘accident’ as that term is defined in the statutes and explained in the jurisprudence.”

We distinguish the instant suit from the cases relied on by plaintiff. In Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972), for instance, the claimant sustained a stroke as the result of “emotional shock or excitement” which occurred when he engaged in an angry discourse with his employer concerning his pay. He was on the job at his place of employment when he had the stroke. In Sherman v. Southern Scrap Material Company Ltd., 284 So.2d 71 (La.App. 4 Cir. 1973), and in Johnson v. Employers Mutual Liability Insurance Company of Wisconsin, 250 So.2d 38 (La.App. 3 Cir. 1971), the plaintiffs sustained violent traumas while at work, and their respective disabilities were found to have resulted from those accidents. In Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968), the plaintiff’s heart began to beat erratically and he almost blacked out and fell while he was at work. Our Supreme Court found that he became disabled as a result of that episode, and that the sudden change which took place in his physical condition at that time constituted an accident.

In the present suit, unlike any of the cited cases, no violent trauma occurred. Landreneau was not on the job or at work when his heart attack occurred. He did not experience an emotional shock or any excitement at or before the time he had the attack. No incident occurred during the course of his employment which marked the time when his period of disability began. And, the evidence does not show a causal connection between his work and the occlusion or infarction which he suffered on September 14, 1973.

We conclude that there is no error in the judgment rendered by the trial court which rejected plaintiff’s demands.

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

AFFIRMED.