author: SARTAIN, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Julius L. ROSENBLUM, Defendant-Appellant.
    No. 11114.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Wm. W. Irwin, Jr., Jerry F. Davis, Alva J. Jones, Baton Rouge, J. Bryan Miller, New Orleans; Johnie E. Branch, Jr., Asst, to Gen. Counsel, Baton Rouge, for plaintiff and appellee.
    A. William Mysing, Jr., Covington, for defendant and appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is an expropriation proceeding under the authority of R.S. 48:441, et seq. (Louisiana’s quick taking statute) for the purpose of acquiring sufficient property to construct an interchange at State Route Louisiana— U.S. 190 near Covington, Louisiana.

The property taken consists of some three lots in their entirety and fractional portions of an additional eleven lots in a subdivision known as County Club Estates in St. Tammany Parish. The lots are on unimproved residential homesites which are deed restricted to single family dwellings. The subdivision has been in existence for approximately ten years. It is bordered on the east by U.S. 190. The lots to the rear of the subdivision surround a golf course. The lots here involved are located near but do not front on Highway 190.

The State deposited the sum of $68,215.00 on January 29,1974. At trial on the merits on June 24, 1976, its appraisers “updated” and adjusted their appraisals accordingly. Mr. Henry B. Breeding, in particular, placed a value of $85,790.00 for the part taken and assigned as severance damages to the remainders the sum of $17,728.00, for a total just compensation of $103,518.00. The trial judge accepted Mr. Breeding’s appraisal and awarded defendant judgment in the amount of $103,518.00, together with legal interest on the difference between the amount of the judgment and the sums initially deposited from January 28,1974, until paid, and expert witness fees.

Defendant has appealed and contends that the trial judge erred (1) in accepting the appraisal of Mr. Breeding in that it was based entirely on comparable sales which occurred after the taking, and (2) in awarding inadequate witness fees. We find merit in appellant’s first contention and amend the award accordingly.

In expropriation suits of this nature the date of the taking is the date that suit is filed, for on this occasion the property rights specified in the petition are transferred to and vested in the State. R.S. 48:445. It is on this date that the value of the property must be determined. Where there is a dispute as to the value of the property that is expropriated, the issue presented requires a determination as to the property’s true market value. That value is a sum that would be agreeable as between a willing purchaser and a willing seller in an arm’s length transaction. To this end, various methods are utilized. Where the situation permits, the most satisfactory method is the market data approach, i. e., the use of sales of similar properties.

In an effort to assure similarity between a given comparable and the property expropriated, the courts have consistently held that transactions which followed the date of the taking should not be used. State, Department of Highways v. Colby, 321 So.2d 878 (La.App. 1st Cir. 1975), writs refused 325 So.2d 278 (La.1976); State, Department of Highways v. Christy, 283 So.2d 533 (La.App. 1st Cir. 1973); State, Department of Highways v. St. Tammany Homestead Assn., 304 So.2d 765 (La.App. 1st Cir. 1974), writs refused, 307 So.2d 373 (La.1975).

The State argues to the contrary and cites St. Tammany Homestead Assn., above; State Department of Highways v. Guste, 319 So.2d 468 (La.App. 4th Cir. 1975); State Department of Highways v. DeRouen, 228 So.2d 659 (La.App. 3rd Cir. 1969), reversed on other grounds, 256 La. 947, 240 So.2d 717 (1970). We find the facts in these cited cases inapposite to those in the case at bar. In St. Tammany Homestead Assn., above, we held that posttaking transactions could be “considered in support of an appraiser’s finding of an annual increase in value antecedent to the taking.” In Guste, above, the court stated that a posttaking sale “can be useful in confirming the value of the property.” The court did concede that subsequent sales unrelated to the expropriation are often indicative of recent market trends. In DeRouen, above, the court held that while a subsequent sale could not be used to determine the market value of expropriated property, such a sale was permissible for the purpose of showing the “market trend.” We do not construe these cases as standing for the proposition that the State urges. To the contrary, in each of these cases the use of sales subsequent to the' taking were permissible but on a restricted basis.

Future cases may disclose a unique situation where there are no available pretaking comparables, thus necessitating the use of posttaking sales. Such, however, is not the case at hand.

Four appraisers testified in the instant matter, Messrs. H. B. Breeding and Leland Landry for the State, and Messrs. Frank J. Patecek and James A. Stevenson for the defendant. Each of these appraisers used as comparables sales of lots within the subdivision. However, both of the State’s appraisers used as the sole basis for their respective appraisals sales occurring subsequent to the taking on January 28, 1974.

Mr. Breeding used seven sales as compa-rables. These sales ranged from nine to twenty-one months after the taking with all but one occurring over a year after the taking. Mr. Landry used six of the same sales as that of Mr. Breeding and five of them occurred over one year following the date of the taking.

On the other hand, all of the sales used by defendant’s appraisers occurred prior to the taking. Mr. Patecek used eight sales, all within six months of the taking. Mr. Stevenson used four sales, all within ten months of the taking.

Each of the appraisers was of the opinion that the lots herein expropriated were not as desirable as those lots in the subdivision which adjoined the golf course or other lots which were situated in the more wooded areas of the subdivision. However, we are satisfied that there were ample sales prior to the taking of similarly situated lots upon which to base values comparable to the lots herein expropriated. Under these circumstances the appraisals of Messrs. Breeding and Landry must be rejected and the appraisals of Messrs. Patecek and Stevenson must be accepted.

Of the two, we accept the appraisal of Mr. Patecek. A review of his written report and his testimony clearly reflects that it is in greater detail and accords full consideration of such factors as location, topography, trees, surrounding improvements, etc. Each of the lots used by him were adjusted, plus or minus, with these factors in mind. He placed a value of $120,968.18 on the part taken and severance damages to the remainders at $26,669.39, for a total just compensation of $147,637.57.

We now turn to the remaining issue. Defendant contends that the trial court erred when it reduced Mr. Patecek’s expert witness fee from $4,400.00 to $3,312.00. In his written reasons for judgment, the judge a quo stated:

“Mr. Patecek has set forth in detail the amount of hours that he worked on his appraisal. He has testified that he put in 252 hours in preparing the appraisal report. However 68 of these hours were put into a time study which the Court feels was not really necessary in this particular appraisal and accordingly, the Court will reduce Mr. Patecek’s fee by $1,088.00 and allow him the sum of $3,312.00 as his fee. Mr. Stevenson’s fee the Court sets at the sum of $2200.00.”

The time study referred to by the district judge entails a review of all sales in Country Club Estates Subdivision from the date of its inception in January of 1968. Under these circumstances we find no abuse of discretion and affirm the amount set. State, Department of Highways v. Colby, above.

For the above reasons, the judgment of the district court is amended by increasing the amount awarded as just compensation from the sum of $103,518.00 to the sum of $147,637.57, subject to a credit of $68,215.00, with legal interest on the difference thereof of $79,422.57 from January 29, 1974, at the rate of seven percent per annum until paid. In all other respects the judgment of the district court is affirmed. All such costs as are permitted by law are assessed against the appellee.

AMENDED AND AS AMENDED AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    James Leake STIRLING et al., Plaintiffs-Appellants, v. DIXIE ELECTRIC MEMBERSHIP CORPORATION et al., Defendants-Appellees.
    No. 11164.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Stephen P. Dart, St. Francisville, for plaintiffs-appellants.
    Richard M. Sandier, Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit for damage to trees, plants and shrubs occasioned by the use of a chemical in the maintenance of a utility right of way. Plaintiffs appeal from a judgment which they contend is inadequate. We amend and affirm.

The incident occurred in June of 1972 when Dixie Electric Membership Corporation (Dixie) engaged Chem-Weed, Inc. (Chem-Weed) to apply by helicopter a chemical known as Tordon 101 along its right of way in West Feliciana Parish.

Plaintiffs contend that the trial judge erred in (1) finding that Dixie had the right to use the chemical; (2) failing to follow the uncontroverted testimony of their experts and substituting his judgment therefor on the question of quantum; and (3) failing to award damages for mental anguish.

In 1938 Mr. James Leake Stirling granted Dixie a servitude for utility purposes which, in pertinent part, provided:

“ . . . and to place, construct, operate, repair, maintain, relocate and replace thereon ... an electric transmission or distribution line or system, and to cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling . . .”

Plaintiffs argue that the above language does not permit the use of chemicals. The trial judge, in his written reasons for judgment, stated:

“ . . . it is the opinion of the Court that the servitude may not and should not be so construed as to permit only the existing or then customary methods and types of tools and equipment ‘to keep them clear of said electric lines or system . ’, or to forestall the utilization of newly develop techniques especially if their utilization could be shown to create no greater loss or damage to the fee owner.”

We must disagree with the above conclusion of the trial judge. Of course, it can not be argued that the use of chemicals was contemplated because such use was unknown in 1938. Equally true is the fact that a grantee is not expected to forego technical advances in the industry and to remain bound to the use of ancient and outmoded hand tools. However, in the instant case, the use of chemicals was entirely unwarranted.

The right of way instrument did not provide for a definite location or a specific width for the servitude. Its location was undoubtedly fixed by mutual consent when the lines were initially installed. Absent a designated width, the trial judge found that ten feet on either side of the line, or twenty feet, was appropriate. We agree. The line traverses the front and side yard of plaintiffs’ property. Mr. and Mrs. Stirling had spent years in planting, developing and nurturing an assortment of trees, plants, and ornamental shrubs.

Chem-Weed was instructed to apply the chemical by helicopter along Dixie’s right of way to a width of fifteen feet on each side of the line, or thirty feet. The application of the chemical was indiscriminate, without regard to the height or proximity of any plant, tree or shrub to the line. Any and all vegetation within and along the thirty foot path got the full treatment.

The use of herbicides permits a method referred to as “side trimming.” The foliage is destroyed. After the leaves are gone, the limbs rot and fall to the ground. During the process the dead limbs as well as all branches of the smaller plants present a burned and blighted appearance. Not all of the trees and plants herein damaged were within the twenty foot right of way. Plaintiffs’ experts were uniform in their opinions that the extent to which the chemical was used was excessive and even the trees that were “side trimmed” were substantially damaged.

We are very hesitant and reluctant to disagree with a trial judge who has visited the scene of the damage. However, we must do so in the instant case for several reasons. First, we disagree with the decision as a matter of law. We do not believe that the use of a chemical here was permissible under the circumstances. The vast majority of trees and shrubs were not a threat to the electrical line nor does Dixie claim that they were. They were located in plaintiffs’ front and side yard and had been there for many years with full knowledge of Dixie.

Generally, a grantor is permitted to plant decorative shrubs along a servitude of this nature and to enjoy the use of the land within the right of way so long as it does not obstruct the purpose for which the servitude was granted. If in the course of maintaining the lines it becomes necessary to remove, “cut and trim trees and shrubs”, it must be in a reasonable manner, with due regard to the rights of all parties. This we find to be the intent of the servitude agreement. The agreement did not call for a periodic wholesale destruction of every parcel of vegetation. Perhaps the application of the chemical could have served the desired purpose had it been applied by means other than a helicopter and on a more selective basis.

The trial judge reasoned that equal damage would have been inflicted had mechanical equipment been used because such equipment would have had to cross over plaintiffs’ lawn or roll over the planted areas themselves. We would be more sympathetic to defendants’ cause had any effort been made to minimize the damage or even consider the use of mechanized equipment. Aerial spraying was utilized because “ . in a nut shell it boils down to cost.” Plaintiffs’ carefully landscaped front yard was accorded no greater consideration than an ordinary fence row. Further, we note, even according to defendants’ witness, that several of the larger trees which were a threat to the line, but not in the twenty foot right of way, were accessible by ground.

We now turn to the question of damages. The trial judge awarded plaintiffs $275.00 for two azalea bushes (10' X 12') and $425.00 for damages to the other plants, and for labor required for removal of dead matter and filling and grading, or a total of $700.00.

We find the amount awarded should be increased to the sum of $3,107.00 in accordance with the expert testimony of Dr. Neil G. Odenwald. Besides Dr. Odenwald, Mrs. Camilla Bradley Truax also testified as an expert on behalf of plaintiffs. Both of these witnesses made a detailed study of the damage and testified in similar fashion. Of the two, we find the report and testimony of Dr. Odenwald to be more thorough and reasonable. We see no reason to report here his item by item evaluation. Defendants’ expert did not disagree with Dr. Odenwald’s approach to the problem. He only disagreed with the percentage of damages assigned to a given tree, plant or shrub by Dr. Odenwald. Further, defendants’ witness had not visited the site or viewed the damage.

We now turn to the claim for mental anguish.

In Mr. Stirling’s original petition he made no claim for mental anguish or emotional distress. However, upon his death his widow, Mrs. Josie L. Stirling, and daughter Mrs. Ann Stirling Weller, were substituted as parties plaintiff. Thereafter, Mrs. Stirling amended the petition to seek damages for mental anguish and emotional distress. This claim must be rejected for there has been no showing of resulting illness or bodily harm. Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974); Todd v. Aetna Casualty & Surety Co., 219 So.2d 538 (La.App. 3rd Cir. 1969), writs refused, 254 La. 13, 222 So.2d 66; Ayala v. Bradley Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir. 1975), writs issued, 322 So.2d 770 (La.1975) and dismissed on joint stipulation, December 10, 1975.

Accordingly, for the above reasons, the judgment of the district court is amended by increasing the award for damages from $700.00 to THREE THOUSAND ONE HUNDRED SEVEN AND 00/100 ($3,107.00) DOLLARS, together with legal interest thereon from date of judicial demand, until paid. In all other respects the judgment is affirmed. All costs of these proceedings are assessed against defendants.

AMENDED AND AS AMENDED AFFIRMED.

      . Dr. Odenwald is an Associate Professor of Landscape Architecture at Louisiana State University. He holds a Ph.D. in Ornamental Horticulture. He is listed in Outstanding Educators of America (1973) and received the Louisiana Garden Club Federation’s Award of Merit in 1966 and 1972.


author: LOTTINGER, Judge.

text:
    Charlie GREEN v. Willie BROWN and Protective National Life Insurance Company.
    No. 11185.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Weldon J. Hill, III, Baton Rouge, for plaintiff appellant.
    A. Michael Dufilho, Baton Rouge, for defendant appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This case involves an automobile accident. The Trial Judge rendered judgment in favor of the defendants and against the plaintiff, dismissing the plaintiff’s suit at his cost.

Automobiles driven by Charlie Green and Willie Brown had a head on collision, the right front of each car hitting the other. Plaintiff claimed that the defendant’s automobile crossed the center line of the highway, its left headlight was not operative, and that the night was foggy and defendant’s automobile could not be seen until it was a short distance from him.

The only witnesses presenting testimony at the trial were the police officer who investigated the accident, a doctor, the plaintiff and the defendant. A statement given by the only passenger in plaintiff’s automobile was offered into evidence by plaintiff in lieu of his testimony without objection from the defendant.

The police officer testified that the night was clear but dark, the road surface was dry, and the point of impact was in the center of the road. He was unable to determine which car came across the center line. He testified that he could smell alcohol on both the plaintiff and the defendant and saw several beer cans lying on the floor of the plaintiff’s automobile.

Whereas plaintiff claims that defendant’s automobile crossed the center line, defendant testified that he saw plaintiff’s vehicle approaching at a fast rate about 150 feet away and that it crossed the center line when about 40 feet away. He testified that he slowed down and veered to the right but was unable to avoid the collision. The statement of plaintiff’s passenger supported plaintiff’s position on defendant crossing the center line, but it varied with the testimony of plaintiff on other points.

The Trial Judge found the testimony to be in hopeless confusion and contradiction, and he concluded that plaintiff had not borne the burden of proof required to impose liability of the defendants. We find no manifest error on the part of the Trial Judge as to his findings of fact nor do we find any error as to his conclusions of law.

For the above and foregoing reasons, the judgment of the Trial Court will be affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


text:
    CHARLES CARTER & COMPANY, INC., Plaintiff-Appellee, v. The CITY OF BATON ROUGE and the Parish of East Baton Rouge, Defendant-Appellant.
    No. 11186.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Walton J. Barnes, II, George L. Clauer, III, Baton Rouge, of counsel for plaintiff-appellee, Charles Carter and Co., Inc.
    Joseph Keogh, Parish Atty., Edward Fet-zer, Asst. Atty., Baton Rouge, of counsel for defendant-appellant, City of Baton Rouge.
    Charles S. McCowan, John Dale Powers, Baton Rouge, of counsel for third-party defendant-appellee, Engineer Testing Laboratory, Inc. d/b/a ETCO Engineers and Associates.
    Lee C. Kantrow, Baton Rouge, of counsel for third-party defendant-appellee, Short, Lormand and Faxon.
    William N. Faller, Baton Rouge, of counsel for defendant-appellee, Pittsburg Plate Glass Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit for the balance due under a construction contract.

The City of Baton Rouge and the Parish of East Baton Rouge (City-Parish) entered into a contract with Charles Carter & Company, Inc. (Carter) for the construction of the East Baton Rouge Parish Health Unit. The building was constructed according to plans and specifications prepared by Sam B. Short, Jr., J. Elliott Lormand, and Louis H. Faxon, associate architects. Formal acceptance of the building was filed on April 13, 1973. As per the contract, the City-Parish was to pay Carter all monies due within forty-five days of acceptance.

Following acceptance certain difficulties arose with respect to the glass work and doors on the first floor. This work was performed by Pittsburg Plate Glass Company (PPG), a subcontractor of Carter.

Carter also sued PPG, alternatively, in the event the glass work was found to be defective. City-Parish brought third party demands against the architects and Engineer Testing Laboratory, Inc. d/b/a Etco Engineers (Etco). Prior to construction Etco had conducted a soil analysis of the building site.

The trial judge, assigning detailed written reasons, rendered judgment in favor of Carter against City-Parish for the balance due of $4868.00 and rejected the claims against PPG, the architects, and Etco. It is from this judgment that City-Parish has appealed. We affirm.

Carter did not appeal nor answer the appeal of City-Parish. Therefore its alternative demand against PPG is not before us. Smith v. Girley, 242 So.2d 32 (La.App. 1st Cir. 1970); Broussard v. Annaloro, 265 So.2d 648 (La.App. 3rd Cir. 1972); and, Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3rd Cir. 1975).

As stated above, this controversy pertains to the fabrication and installation of the glass walls and doors. This work was performed by PPG between December 28, 1972 and February 27, 1973. Some five months later it was noted that the vertical mullions around the entrance on the east side of the building were bowed and twisted, the storefront glass was loose, and the doors did not work properly. Representatives of City-Parish, Carter, PPG and the architects viewed the problem. Carter and PPG insisted that each had performed its work according to the plans and specifications and neither would accept primary responsibility. However, as a gesture of good faith, PPG removed the misaligned mullions and door jambs and refabricated and reinstalled the defective work. The original plans and specifications called for one-fourth inch tolerances between the aluminum mullions and the structure at the ground and ceiling levels. When the first corrective work was performed it was necessary in some instances to trim as much as five-sixteenths of an inch off some of the mullions to effect a proper fitting. PPG informed City-Parish that the problem would reoccur. It did and PPG refused to accept any further responsibility.

The City-Parish then called for bids from other glass contractors and Braud Glass was the successful bidder. When Braud commenced its corrective work, it noticed that the additional tolerances allowed by PPG were no longer present. Braud’s corrective procedure was similar to that used earlier by PPG. When this matter was heard on the merits over a year later, some of the tolerances left by Braud had also disappeared.

The center of this controversy naturally surrounds the cause for the continued loss of tolerances around the columns and the resulting bowing thereof. Carter and PPG contend that it is the result of an unfavorable soil condition beneath the building; that they performed their respective work in accordance with the plans and specifications of the architects and are not responsible. The architects contend that the problem is the result of faulty workmanship in that proper tolerances were not allowed. In this respect it should be noted that the architects were not retained to give detailed supervisory services during construction. Apparently this responsibility was reserved by City-Parish and performed by one of its employees.

Dr. Louis J. Capozzoli, an expert engaged by City-Parish to ascertain the cause for the problem, opined that the swelling of the top eight feet of soil beneath the building is the major cause. His theory is that the soil when dry tends to absorb available moisture and upon doing so expands, lifting the slab resting on top of it. When this takes place the elevation between the first and second floors is reduced and pressure is caused to be placed on the upright mullions. He noted several sources of moisture, namely: the normal build-up from the prevention of evaporation after placement of a concrete slab on the soil, planting areas on the east and west sides of the building, and a storm sewer.

The trial judge found and we agree that the problem was not caused by any improper workmanship on the part of Carter or its subcontractor, PPG.

With respect to Etco, the court found that the building had settled within the limit predicted by them in their report, which report was also used by the architects in their design of the building.

With respect to the architects’ liability, the trial judge stated: "

“Insofar as the architects are concerned, the Parish has alleged that they made certain errors in structural design or interpretation of soil data furnished to them for this project which resulted in certain defects. It is well established in Louisiana jurisprudence that expert testimony is needed to establish the lack of care and resulting negligence on the part of architects and engineers.
“Pittman Construction Company v. City of New Orleans, 178 So.2d 312 (4th Cir. 1965), writs refused. In certain respects, Pittman is very similar to the case at bar, and therein the law relative to the responsibility of an architect is set forth quite succinctly. Expert testimony was presented in Pittman as to the required standard of care for an architect. The test is whether the architect performed his services in accordance with the skills usually exercised by others of his profession in the same general area. The burden of proving the architect did not is upon the party making this charge. In Pittman, the Fourth Circuit found that the City of New Orleans, as third-party plaintiff, had not discharged its burden because the expert testimony vindicated the professional skill and judgment exercised by the architect. In this case, no expert architectural testimony was presented to either establish the required standard of care for this general area, or a failure to perform in accordance with said standard of care. (Emphasis ours)
“Accordingly, the court is unable to determine whether the architects herein have breached any duty owed by them to the Parish, and the third-party demand of the Parish insofar as the architects are concerned, is also dismissed.

We find no error in the above conclusion.

Lastly, the architects have answered the City-Parish appeal and seek reasonable attorneys’ fees contending that City-Parish’s appeal against them is frivolous. Our review of this record does not justify the branding of this appeal as frivolous. Ap-pellees’ demands in this respect are rejected.

Accordingly, for the above reasons, the judgment of the district court is affirmed and all such costs as are permitted by law are assessed against appellant, City-Parish.

AFFIRMED.


author: COVINGTON, Judge:

text:
    Edward H. FALLON, Sr. v. Terry D. DORSETT.
    No. 11187.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Edward H. Fallon, Jr., Slidell, for plaintiff-appellant.
    Lloyd R. Walters, Alvin D. Singletary, Slidell, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This action arose from an accident which occurred in a residential area of Slidell, Louisiana, on April 20, 1969, involving a vehicle driven by defendant, Terry D. Dor-sett, and the plaintiff’s minor son, Brian Fallon. It was the plaintiff’s contention that the accident occurred when Brian, who was stopped by the side of the road, was struck in the head by the handle of a lawnmower which was being hauled in the trunk of the defendant’s vehicle. Various personal injuries were allegedly sustained, including damage to an eye. It was the defendant’s contention that the young boy ran out into the street and into the side of defendant’s moving vehicle.

At the trial the plaintiff put on eight witnesses, exclusive of medical evidence produced by deposition, including the defendant on cross examination. Only two of those eight witnesses could be classified as disinterested and neither of them actually saw the accident. The defendant put on six lay witnesses. Two of them were disinterested and both testified that they actually saw the accident.

The trial judge concluded that the plaintiff had failed to sustain the burden of proving his case by a preponderance of the evidence. A devolutive appeal was taken. We affirm.

We find from our review of the evidence that it is insufficient to support the plaintiff’s contention that Brian Tallón was standing on the grass at the edge of the road when the defendant’s vehicle swerved in his direction so close that the handle, protruding from the trunk, struck him in the head.

Cyril B. Miller, who lived in the neighborhood and was out on his lawn at the time of the accident, testified:

“Q. Mr. Miller, did you see this accident that we are talking about today that happened on April 20, 1969?
A. Yes, sir.
Q. Tell us what you saw.
A. I saw the younger Fallon boy come out of his garage, down his driveway and physically run into the side of the car being driven down the street.
Q. O.K. What side of the car did he run into, Mr. Miller?
A. That would have been the right side of the car.
* * * * * *
Q. Was the car proceeding at a fast rate of speed or a slow rate of speed or what?
A. I would say it was a normal, or normal, a normal speed, or slow for the residential area.
Q. O.K. Now you say the Fallon boy ran from what side of the street now?
A. That would have been the north side of the street. He was headed south.
Q. O.K. Was he walking or what?
A. He was going at a rather fast clip, sort of running like.
Q. Could you tell why he was running?
A. I don’t know for sure why he was running, but I had the opinion he was getting away from his dad for a moment because I could hear his father, I didn’t see him, I could hear him talking rather loudly and I thought maybe he had, was getting after him a bit and he was getting out of the way.
Q. O.K. Did you see Brian Fallon look to the left or right before entering the street?
A. No, but he appeared to be looking back as though someone was saying something or whatever, to catch what was going on behind him.”

Another neighbor and disinterested witness, Mrs. Fay Poland (Polen), testified that the Dorsett vehicle was proceeding slowly down the residential street when the young Fallon boy ran across the street behind the Dorsett ear “. . . and all of a sudden he held his head and Mr. Fallon came running out and started hollering at . Mr. Dorsett ... I didn’t realize he (Brian) had hit the car until he held his head.”

It is established and well recognized that in a tort case the burden of proof rests on the party who charges negligence. It must be established with reasonable certainty and by a preponderance of the evidence; a showing of the mere possibility or probability of negligence is insufficient. Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1 Cir. 1975), writ denied, La., 313 So.2d 846; Maher v. Alonso, 222 So.2d 562 (La.App. 4 Cir. 1969).

Applying the foregoing rule, we find that the plaintiff has failed to bear that burden. Certainly it can not be said that a preponderance of the evidence supports the plaintiff’s claim of Dorsett’s negligence when we consider the fact that the testimony of his friendly witnesses is contradicted by that of the defendant’s disinterested witnesses. There is no corroboration of the plaintiff’s position by the circumstances or from any disinterested witness, whose testimony, if credible, is entitled to great weight. See Alexander v. St. Paul Fire & Marine Insurance Co., supra; Waddell v. Gravois, 187 So.2d 486 (La.App. 4 Cir. 1966).

Appellant’s assignment of error that the defendant should have been held to certain factual admissions made by the said defendant, in answers to interrogatories and in a pre-trial order, is without merit. There was no proof that the plaintiff was misled or deceived by any such admissions. See St. Paul Fire & Marine Insurance Co. v. Roberts, 331 So.2d 529 (La.App. 1 Cir. 1976).

This case is basically one of the determination of factual findings. The trial court had ample credible evidence to support his conclusions. Therefore, we cannot and shall not disturb it; Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976); Hoover v. Beatty, 323 So.2d 490 (La.App. 1 Cir. 1975).

For the foregoing reasons, the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.

      . On November 10, 1975, before the original return date for the appeal, on motion of Brian D. Fallon, an order was filed allowing him, having become a major, to be substituted “as proper party plaintiff in these proceedings.”


text:
    Thomas T. RODRIGUEZ, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS, Defendant-Appellee.
    No. 11193.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Fernand F. Willoz, III, New Orleans, for appellant Thomas T. Rodriguez.
    J. Michael Orlesh, Jr., and Harry Rosenberg, New Orleans, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Thomas T. Rodriguez (appellant) appeals from a ruling of the Louisiana Civil Service Commission which upheld his dismissal as a classified Harbor Policeman Patrolman with the Board of Commissioners of the Port of New Orleans.

By letter dated October 3, 1976, appellant was terminated for the following reasons: (1) on March 8, 1975 appellant gave false information concerning an accident report and received a one day suspension; (2) on May 1, 1975 appellant reported to work in an improper uniform and gave false information concerning the reasons therefor and received an official reprimand; and (3) on September 29, 1975, appellant failed to report to work for the eleven o’clock p. m. shift and gave false information as to the reasons therefor.

The issues before us are the same that confronted the Commission, namely: appellant argued that he should be permitted to offer defenses to and/or explanations for the prior offenses of March 8,1975 and May 1, 1975; and, that the alleged offense of September 29, 1975 was not proved or, if proved, did not give legal cause for his dismissal. We shall discuss these issues in the order mentioned.

Appellant contends that the appointing authority was “estopped from reviving” the episodes of March 8 and May 1, 1975 as grounds for dismissal on October 3, 1975. Hamlett v. Division of Mental Health, Etc., 325 So.2d 696 (La.App. 1st Cir. 1976); and, Robbins v. New Orleans Public Library, 208 So.2d 25 (La.App. 4th Cir. 1968).

This issue was raised at the outset of the hearing when counsel for appellant sought to limit the matter before the Commission to the alleged offense of September 29, 1975 by moving to strike the occurrences of March 8 and May 1, 1975 from the letter of dismissal. The motion was denied.

The chairman stated that the Civil Service rules provide that an employee who is the subject of any disciplinary action by his appointing authority has thirty days in which to appeal such action to the Commission. Absent such an appeal and with the lapse of thirty days, the action of the appointing authority is final. Under the ruling complained of, the appointing authority was not required to submit further proof as to these prior offenses nor was appellant permitted to offer any evidence in explanation thereof.

In Hamlett, above, this court held that an appointing authority was estopped from bringing disciplinary action against an employee on the basis of an offense that had occurred six months previously and for which the employee had been previously disciplined. In Robbins, above, a one hundred twenty day suspension for alleged misconduct which had occurred five months previously was set aside. The court stated: “. . . [T]he appointing authority waited too long to act and then its action was poorly presented in all respects.” In neither of these cases was there a subsequent offense which prompted further disciplinary action. For this reason the facts in the cited authorities are inapposite to those in the case at bar.

The issue here, therefore, is what is the effect of prior offenses vis a vis a subsequent offense which when considered cumulatively, results in dismissal from employment? A determination of this issue presupposes full proof of a subsequent offense for absent such proof the employee has already been disciplined and the rules of Hamlett and Robbins, above, would apply. With respect to the prior offenses, should the appointing authority be required to come forward with proof of them also? We think not.

In all matters, judicial and/or quasi-judicial, there must be a period of time after which the decision of an authority must be final, whether it is to put an end to litigation (as in the courts) or administrative rulings (R.S. 49:964). The parties must have a reasonable time in which to resolve their differences but all disputes must at some time be resolved and put to rest so that the parties involved can go about their respective endeavors with full certainty of their positions for the future and without fear or consequences of the past. Such certainty and finality is just as important and necessary in personal matters involving classified employees.

We find the issue here similar to that raised in Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1st Cir. 1972), writs refused, 260 La. 1135, 258 So.2d 381 (1972). In Heinberg, the employee charged as a denial of due process a ruling of the Commission wherein he was denied the opportunity to reopen a substandard efficiency rating. This court recognized the Commission’s right to construe an unappealed rating as final where the rules of the Commission provide for an adequate remedy by appeal. In so holding, we stated that such a rule “. . . lends itself to the orderly administration of the Civil Service Amendment,” and “. promotes the finality of administrative findings and decisions under circumstances which protect the basic rights of employees.” The facts in the instant matter equally justify our upholding the decision of the Commission on this issue.

With respect to the incident of September 29, 1975, the record is really not in dispute. When appellant failed to report to work and was contacted at his home, he first stated that he thought it was a changeover shift and he was not required to report at eleven p. m. When reminded that if it was a changeover shift date he would have had to report at three p. m. instead of eleven p. m. a rule with which he was familiar. Whereupon, appellant stated that he did not report to work because he was ill and had earlier informed a superior that he might not report for duty. When confronted with the denial on the part of that superior appellant stated that he did not call in to report his intended absence as required because he had taken some medicine which had caused him to oversleep. He finally admitted that the medicine had not been prescribed by a physician but that he took “Vick’s Formula 44, Contac and a few other things that was around. . .”

The rules and regulations of the Harbor Police as set forth in its manual, provide, in pertinent part: “A member shall be truthful in his conduct towards all persons.” Chapter B, Art. 10(e); and “A member shall not knowingly make, or cause or allow to be made, a false or inaccurate oral report or written record of an official nature.” Chapter B, Art. 15(d).

Assistant Superintendent Joseph Canna-tella explained that Harbor Patrolmen, just as police officers, have the power to arrest and can by their actions cause an individual to receive severe criminal penalties. In the performance of their duties, it is essential that Harbor Patrolmen be truthful in all matters. He stated that appellant’s resort to untruths surrounding the September 29, 1975 incident together with the falsity of his previous statements relating to the prior offenses satisfied him that appellant should be dismissed.

Appellant argues that the record fails to support the conclusion that he deliberately lied about his failure to report to work. We find that there is ample evidence in the record to support just such a conclusion. The plain and simple truth is that appellant overslept. He should have said so.

Lastly, appellant argues that his statement, if proved false, could not be construed to have affected or impaired the efficiency of the public service and therefore does not constitute a legal cause for disciplinary action. Leggett v. Northwest State College, 242 La. 925, 140 So.2d 5 (1962); and, Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1959).

We have no quarrel with the rule announced in Leggett and Brickman, above. Simply stated, it requires that there must be a “real and substantial relation between the conduct of an employee and the efficient operation of the public service; otherwise, legal cause is not present . . .” and disciplinary action for such conduct is arbitrary and capricious as a matter of law.

Whether there is a real and substantial relation between a certain type of conduct and the efficiency of the public service is a question that must be decided on the particular facts of each case. Not all conduct, however disapproving, will or is likely to impede the efficiency of the public service. In the case of personal traits, the decision becomes more difficult.

The Commission found, and we agree, that there existed a real and substantial relation between the untruthful conduct complained of and the efficiency of the public service. We grant that a single incident such as that of September 29, 1975 might not be sufficient to establish such a relation; however, considering this latter incident together with the two prior occurrences, we can not say that the action of the appointing authority or the Commission was arbitrary or capricious.

For these reasons, the ruling of the Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


text:
    Willie J. CAMPBELL v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 11195.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Michael W. McKay, Baton Rouge, of counsel, for plaintiff-appellant Willie J. Campbell.
    Frank Coates, Jr., Baton Rouge, of counsel, for defendant-appellee Commercial Union Insurance Co., et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit for damages ex delicto filed by Willie J. Campbell against Ralph Du-prey, driver of a garbage truck, his employer, Browning-Ferris Industries of Louisiana, Inc. and its insurer Commercial Union Insurance Company. Prior to trial the plaintiff died, and his widow was substituted as plaintiff.

The trial was before a jury which brought in a judgment in favor of defendant and plaintiff’s suit was dismissed. Plaintiff has taken this appeal.

The accident occurred on January 30, 1974 at approximately 11:30 A.M. Walter Lawrence, a witness for plaintiff was in another vehicle at the intersection where the accident took place. He testified that Willie Campbell was stopped at a traffic signal when the garbage truck being operated by the defendant, Ralph Duprey, rear-ended Mr. Campbell’s pickup truck and knocked it some 10 or 15 feet forward. He did not stop to speak to Mr. Campbell at the time because of the traffic, but spoke to him later. He testified that there was no possibility that Mr. Campbell backed up into the garbage truck and that he saw both the plaintiff and the defendant get out of their respective vehicles, as he drove off.

John Beauchamp, another witness for plaintiff testified that he lived right across the street from the plaintiff and was a witness to the accident. He testified that the impact pushed plaintiff’s truck about 10 feet and did a little damage to the rear of the truck.

Ralph Duprey, the defendant driver, testified that the accident occurred at the corner of Scenic Highway and Harding Boulevard, Baton Rouge, Louisiana. He contends that Mr. Campbell backed up into him. Mr. Duprey said that there were 4 or 5 cars ahead of him, that is between the garbage truck and the traffic light and the plaintiff’s truck was one of them. When Duprey stopped at the traffic light, his passenger and co-worker, James Moody got out of the truck, walked to the front of the garbage truck and crossed Scenic Highway to the Southern University Campus. He was completely across the street. Duprey contends that Campbell did not want to report the accident stating that there was no damage to either truck, but Duprey stated that he had to call his dispatcher.

This was a trial before a jury. It is obvious from the ruling for defendants, that the jury did not believe the story of how the accident happened as related by plaintiff’s witnesses. This is entirely a credibility question which rests solely with the jury, and should not be disturbed by this Court absent manifest error. What apparently impressed the jury is the fact that if this was such a severe hit by this garbage truck, why did the plaintiff not want to call the police to investigate the accident.

For the reasons hereinabove assigned, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid by plaintiff.

AFFIRMED.


text:
    FORREST HOUSE APARTMENTS, a limited partnership v. LOUISIANA PUBLIC SERVICE COMMISSION and Central Louisiana Electric Company, Inc., a/k/a “CLECO”.
    No. 11199.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Bobby L. Forrest, Baton Rouge, of counsel for plaintiff-appellant Forrest House Apartments, et al.
    Richard E. Lee, Pineville, of counsel for defendant-appellee and plaintiff in rule Central Louisiana Electric Company, Inc.
    Marshall B. Brinkley, Gen. Counsel, Louisiana Public Service Commission, Baton Rouge, of counsel for defendant-appellee and plaintiff in rule Louisiana Public Service Commission.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Forrest House Apartments, a limited partnership, against the Louisiana Public Service Commission (hereinafter sometimes referred to as Commission) and Central Louisiana Electric Company, Inc. (hereinafter sometimes referred to as CLECO), alleging that its utility bills at an apartment building located in Pineville, Louisiana far exceeded those prevailing in the area because of the use of a demand meter installed by defendant, CLECO, with the approval of defendant, Commission. Plaintiff prayed for judgment declaring the Commission’s order granting and authorizing the use of the demand meter on plaintiff’s apartments unconstitutional and/or that the permitted use of the demand meter resulted in the imposition of rates and services charged by defendant, CLECO, which are unreasonable, unjust and discriminatory. It further prayed for damages against CLECO, as well as suing CLECO singularly under contract.

Both defendants filed declinatory exceptions to the jurisdiction of the court over the subject matter inasmuch as no rate hearing had been held before the Commission, and in addition, as to the allegation under a supposed contract, CLECO filed a declinatory exception to venue based on the proposition that it was domiciled in Rapides Parish, Louisiana. The Trial Court maintained all exceptions of both defendants, and the plaintiff has appealed, but only as to the Trial Court’s maintaining CLECO’s declinatory exception to venue.

Some twenty-eight interrogatories were attached to the petition when it was filed and were propounded to CLECO. After filing its declinatory exceptions to jurisdiction and venue, and after reserving all of its rights under the declinatory exceptions, defendant-CLECO filed a general objection to all of the interrogatories based on the ground that the court did not have jurisdiction over the subject matter and further that the suit was filed in a court of improper venue. It further objected specifically to various interrogatories.

Plaintiff-appellant argues that CLECO has waived its objection to venue and jurisdiction over the subject matter by its general appearance in objecting to the interrogatories and citing in support thereof LSA-C. C.P. art. 7 and Stelly v. Quick Manufacturing, Inc., 228 So.2d 548 (La.App. 3rd Cir. 1969).

However, both LSA-C.C.P. art. 7 and Stelly v. Quick Manufacturing, Inc., supra, are concerned with the waiver of the objection to jurisdiction over the person, rather than venue, and thus are not controlling.

Venue in certain instances can be waived, LSA-C.C.P. art. 44, however, we are of the opinion that objection to interrogatories once the declinatory exception has been filed does not constitute such a waiver.

Furthermore, LSA-C.C.P. art. 1491 requires the objection to interrogatories be filed within 10 days of receipt of service, or the right to object is lost. We cannot conceive it to have been the intent of the legislature in adopting the Code of Civil Procedure to consider it a waiver of the declinatory exception of venue by objecting to interrogatories after the exception had been filed.

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

AFFIRMED.

      . LSA-C.C.P. art. 7 provides:
      Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
      (1) Entry or removal of the name of an attorney as counsel of record;
      (2) Extension of time within which to plead;
      (3) Security for costs;
      (4) Dissolution of an attachment issued on the ground of the non-residence of the defendant; or
      (5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
      This article does not apply to an incompetent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.
      When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.


text:
    Forrest DAVID, Jr. and Aileen David v. James PICKERING d/b/a Pickering Brothers House Movers and Dixie Auto Insurance Company.
    No. 11227.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    H. G. Jeffers, Jr., Baton Rouge, Jack J. Rogers, Lake Charles, of counsel for plaintiffs-appellants Forrest David, Jr. and Aileen David.
    Richard B. Nevils, Baton Rouge, of counsel for defendants-appellees James Pickering d/b/a Pickering Bros. House Movers and Dixie Auto Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This suit was filed by Forrest David, Jr. and his wife, Aileen David, seeking damages for an accident that occurred on June 5, 1973, in which a truck owned and used by defendant, James Pickering, d/b/a Pickering Brothers House Movers, allegedly ran into Mrs. David. The Trial Court rendered judgment in favor of defendants. Plaintiffs have appealed.

Mr. David testified that he was talking to Mr. Pickering and was looking for his property line at the time of the alleged accident. The Trial Court said of Mr. David: “his testimony in several aspects was unbelievable.”

Willie Edwards, the driver of the truck that supposedly hit Mrs. David said that he was directed by his boss to get into the truck and take it back to where it was normally parked. He entered the truck, depressed the clutch pedal to take it out of gear at which point the truck rolled back approximately one and one half (IV2') feet, he then started the engine simultaneously with the truck rolling back and upon starting the engine he heard some hollering. As soon as he heard this hollering he cut the switch off and put the truck in gear so it would not roll any further and got‘out to see what happened. As he walked to the back of the truck he saw both plaintiffs walking to their house. This witness also stated that he saw the plaintiff’s husband and Mr. Pickering speaking together on the side of the truck prior to the alleged accident.

Mr. Pickering testified that the truck could have hit Mrs. David, but he really did not know what caused her to fall. The plaintiff’s husband walking ahead of him and Mrs. David was slightly to his rear when she fell. Mr. David testified that the truck had backed up 10 feet before it struck his wife. No one saw the truck actually strike Mrs. David.

In its written reasons, the Trial Judge said:

“No one saw the truck actually strike Mrs. David. Although plaintiff may prove negligence by circumstantial evidence, such evidence, to be sufficient to prove any facts, must exclude with a fair amount of certainty every reasonable hypothesis other than that which it tends to prove. Tillman v. Canals Ins. Co., La.App., 305 So.2d 602. Mr. Pickering testified that it had rained the night before. Plaintiffs stated that a water faucet had been broken that morning. It is just as likely that Mrs. David may have merely slipped on the damp surface. Furthermore, from the evidence adduced it appears that Mrs. David had had a bout with pneumonia a few weeks before and had just gotten out of the hospital. Obviously she was not at full strength. She may have fainted or tripped. Plaintiffs have not proven that more probably than not she was negligently struck by the truck.
“Nevertheless, even if the truck had been negligently driven and Mrs. David had been negligently struck, any recovery by plaintiffs would be barred by her contributory negligence. She allegedly heard Mr. Pickering yell, ‘Get that goddamn truck off this lot,’ and yet she immediately thereafter walked behind the truck. She must have also heard the engine being cranked up. The Court finds that Mrs. David engaged in conduct which falls below the standard which a reasonable person under the circumstances would have used for her own protection. By her own admission she ‘doesn’t remember what happened.’ This evidences her inattention.”

We find no error in the decision of the Trial Court. For the above and foregoing reasons, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid by plaintiffs.

AFFIRMED.


text:
    Louis BLACHER, Plaintiff-Appellant, v. MATLACK, INC., Defendant-Appellee.
    No. 11330.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Charles R. Chestnutt, III, New Orleans, Marvin L. Jeffers and Joshua A. Tilton, Baton Rouge, for plaintiff-appellant.
    Robert D. Hoover, Baton Rouge, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This matter is before us on Matlack, Inc.’s (appellee) motion to dismiss Louis Blacher’s (appellant) appeal on the ground that the same was not filed within the sixty day period provided for in C.C.P. Art. 2087, as amended by Act 201 of 1976. We deny the motion.

At the outset it should be noted that Act 201 of 1976 reduced the delay for perfecting a devolutive appeal from ninety to sixty days. Act 201 became effective on October 1, 1976.

In the instant matter judgment was signed and notice was mailed to counsel of record on July 27, 1976. No new trial was applied for and under C.C.P. Art. 2087 (pri- or to the amendment) appellant then had until November 3, 1976 to perfect his appeal.

Appellant, following judgment, obtained an order permitting him to proceed in for-ma pauperis. The district judge signed the motion for appeal on October 6, 1976, some five days after the effective date of Act 201.

Appellant contends that Act 201 is a remedial statute and as such should be applied retroactively. Orleans Parish School Board v. Manson, 241 La. 1029, 132 So.2d 885 (1961).

We recognize the general rule to be that newly enacted legislation will be applied prospectively. Paul v. Edwards, 323 So.2d 488 (La.App. 1st Cir. 1975). We also recognize the exception to this rule to be that where the statute was found to be remedial or procedural it may be applied retroactively. Hammond Asphalt Co. v. Joiner, 270 So.2d 244 (La.App. 1st Cir. 1972). However, we do not find it necessary to classify Act 201 as remedial or procedural. For we do not believe it to be incumbent upon the court to apply it retroactively on the sole basis of its classification. Whatever classification is given the statute, the court may for policy reasons choose not to give it retroactive effect.

C.C.P. Art. 2087 was amended for the purpose of reducing the delays attending an appeal for the primary purpose of expediting litigation. We do not believe that it was intended to reduce the delay of ninety days for perfecting a devolutive appeal in suits where judgment was signed prior to the effective date of the act. To carry appellant’s argument to its fullest extent would require that we hold that any judgment which had been signed for a period in excess of 60 days before the effective date of the act would be unappealable after October 1, 1974. We, therefore, decline to give retroactive effect to the amendment to C.C.P. Art. 2087 and hold that it applies to judgments rendered and signed after the effective date of the amendment.

For these reasons, appellee’s motion to dismiss is denied. All such costs as are related to the instant motion are assessed against appellee with all other costs to await a final determination on appeal.

MOTION DENIED.


author: JONES, Judge.

text:
    Lois G. MERRILL, Plaintiff-Appellant, v. SUNBEAM CORPORATION et al., Defendants-Appellees.
    No. 13163.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.
    Writ Refused June 10, 1977.

      Ford E. Stinson, Benton, for appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Jack E. Carlisle, Jr., Shreveport, for appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment rejecting her demands for workmen’s compensation benefits against Sunbeam Corporation. We affirm.

Plaintiff had been employed for several years prior to February, 1972 at Sunbeam’s plant in Coushatta, in a factory which manufactures household electric clothing irons. Plaintiff’s suit states in February, 1972, while working on an assembly line, she injured her back lifting a container of trichlo-roethylene (trichlor). She further claims she continued to have back pain following this incident and reinjured her back on May 10, 1973, forcing her to quit her job because of the pain.

Plaintiff’s physician, Dr. Richard E. Hanna, testified plaintiff reported to his office on February 7, 1972, complaining of back pain and advised him she had injured her back while lifting a can of trichlor while working at Sunbeam. He examined plaintiff, found she had muscle spasms in her back and prescribed a muscle relaxant drug for the treatment of the injury, along with an ultrasonic sound treatment. Plaintiff returned to his office on February 8 for the ultrasonic treatment. Dr. Hanna did not see plaintiff again for her back complaint until May 14, 1973.

Plaintiff testified at the time of her injury in February, 1972 she told a co-worker, Mrs. Mabel Brunner, she had injured her back. Plaintiff also testified she reported this injury to her supervisor on the following day. Plaintiff continued to work after her injury until May 10, 1973, apparently without any absences whatsoever. She stated she endured almost continuous back discomfort which became much more severe when she was required to bend over her work bench or lift the container of trichlor to fill her iron manufacturing machine, which she was required to do several times a day. Plaintiff further testified that in May, 1973, while untieing her shoes at home, her back pain became so severe she fell to the floor.

Plaintiff told her supervisor of this incident at work the next day. Although the exact date of this incident cannot be found in the record, plaintiff testified she continued to work for a number of days following this occurrence, until the morning of May 10, 1973, when her back pain became so severe it was necessary for her to go home. She was never able to return to work:

“So, one day at work I had stood the pain just about as long as I could. ... I was just going to have to go home, that I couldn’t stand it any longer. . . .”

Following this final termination of her employment she was seen again by Dr. Hanna, who referred her to Dr. Donald F. Overdyke, Jr., an orthopedic surgeon. Dr. Overdyke examined her on May 18, 1973, and diagnosed plaintiff’s injury as a lumbar strain superimposed on a developmental defect promoting some lumbosacral instability. Dr. Overdyke expressed the opinion that had he performed a pre-employment physical upon plaintiff he would not have permitted her to go to work for defendant. He likened her to “. . .an accident walking around [waiting] to happen. . . ”

Dr. Overdyke expressed the opinion plaintiff was totally and permanently disabled, feeling it was a situation which had been developing for sixteen to eighteen months:

“ * * * I think this situation had been working for sixteen to eighteen months. . After the first injury by her history, which is what I have to go by. It just went on and on and on until she got down to where she couldn’t go anymore.”

Dr. Overdyke explained plaintiff’s back had a developmental defect, one that occurred during a period of growth, as distinguished from a congenital defect, one that is present from birth. It is apparent from his testimony that plaintiff, age 51, had this back defect long before the injury of February, 1972.

Although plaintiff stated she had informed her supervisor of her February accident, along with Mrs. Mabel Brunner and several other co-workers, they all denied this at trial and further testified they were otherwise unaware that plaintiff sustained an on-the-job back injury. The supervisor and one co-worker did admit plaintiff told them of the incident occurring shortly before May 10, 1973, when the back pain became so acute she fell to the floor at home.

The trial court pointed out a compensation claimant must prove her claim by a preponderance of the evidence, as must any other plaintiff, and observed the absolute failure of plaintiff’s co-workers or supervisor to corroborate her testimony with regard to an on-the-job injury. The trial court then rejected plaintiff’s claim because of her failure to meet the required burden of proof. We are unable to find manifest error in the trial judge’s decision.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. . . .”
Canter v. Koehring Company, 283 So.2d 716 (La.1973), at p. 724.

After plaintiff’s appeal was taken and the record lodged in this court, defendant filed a plea of prescription and peremption. Assuming plaintiff established a compensa-ble injury occurring in February, 1972, the question then evolves as to whether her suit filed on May 8, 1974 was timely filed. LSA-R.S. 23:1209 provides a general prescriptive period of one year from the date of the accident, but also contains the following proviso:

“ * * * Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

In our recent decision of Harris v. Seaboard Fire & Marine Insurance Company, 337 So.2d 262 (La.App., 2d Cir. 1976) we discussed this provision of the compensation law and there said:

" * * * In a workmen’s compensation suit for disability benefits, the disabling injury. does not fully develop until the workman cannot perform his duties and the prescriptive period does not commence to run until discontinuance of employment, subject to the requirement that suit be filed within two years after the date of the accident. . . .” Id. p. 263

See also Russell v. Employers Mutual Liability Insurance Company of Wisconsin, 246 La. 1012, 169 So.2d 82 (1964); Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971).

Plaintiff is totally and permanently disabled within the contemplation of the Louisiana Workmen’s Compensation statute. This disability was established to have “developed” on May 10, 1973, at which time plaintiff’s injury became so painful she was required to permanently discontinue her employment.

Although plaintiff states in her petition she sustained an accidental injury on May 10, 1973, at the time she discontinued her employment, the record is absolutely devoid of any evidence of such an accident. The plaintiff testified at the time she left work permanently she did so simply because she could no longer stand the pain.

It is likewise significant that in answer to the employer’s interrogatories requesting detailed information concerning the alleged accident of May 10, 1973, plaintiff responded:

“It wasn’t an accident; the work was such that I couldn’t do it as I was hurting and in pain.”

The incident occurring in plaintiff’s home about May 10, 1973 cannot be considered a compensable accident. She was suffering intense pain following her day’s work, which increased in severity while plaintiff was untieing her shoes, and caused her to fall on the floor.

“Yesterday, when I got home I was so tired and my back was hurting so bad whenever I stopped over to untie my shoes to take them off, I just hit the floor.”

This incident was nothing more than a bending activity which increased the severity of plaintiff’s pain just as her work activity of lifting the can of trichlor and leaning across her work bench had daily increased the severity of her pain since the alleged initial accident in February, 1972. Although her suit was filed May 8, 1974, less than one year from the time of the development of her injury, suit was not filed within two years from the alleged occurrence of the accident in February, 1972, and is therefore perempted under the provisions of LSA-R.S. 23:1209.

For the foregoing reasons, we affirm the decision of the trial court, appellant to pay all costs of this appeal.


author: PRICE, Judge.

text:
    Andrew R. JOHNSON, Plaintiff-Appellee, v. John W. McCORVEY, Sr., et al., Defendants-Appellants.
    No. 13166.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.

      James M. Dozier, Jr., Farmerville, for defendants-appellants John W. McCorvey, Sr. and Lorene McCorvey Johnson.
    Armand F. Rabun, Farmerville, for defendants-appellees King R. Johnson, Jr. and Mrs. Ross V. Hickey.
    Barham, Adkins & Coleman by Tommy J. Adkins, Ruston, for plaintiffs-appellees Richard Andrew Johnson and Ronald G. Coleman, Administrator of Estate.of King R. Johnson, Sr.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Richard Andrew Johnson brought this action against his stepmother, Lorene McCor-vey Johnson, and her brother, John W. McCorvey, Sr., to annul as a simulation a deed and loan executed by plaintiff’s father disposing of his entire estate a short time prior to his death. Plaintiff also seeks damages against the defendants for conspiring to deprive him of his legal inheritance. The brother and sister of plaintiff, King R. Johnson, Jr. and Mrs. Ross V. Hickey, intervened to claim any rights of inheritance they are entitled to as forced heirs should plaintiff be successful in his nullity action.

Plaintiff and intervenors are the issue of the marriage of King R. Johnson, Sr. to Louise Johnson, which was terminated by divorce. King Johnson, Sr. married Lorene McCorvey in 1960 in Tennessee and they thereafter established their domicile in Union Parish in 1970, where it remained until Johnson’s death in March, 1974. No issue was born of this marriage.

At the time he moved to Union Parish, decedent purchased a twenty-acre tract with a residence from his brother-in-law, John McCorvey, for $13,000. He spent a substantial sum in remodeling and enlarging the residence and also built a small store building on the part adjacent to the highway. The estimated cost of the improvements was approximately $19,000. In 1971, he sold inherited property in Tennessee for $160,000, receiving $42,728 in cash and a note payable in four annual installments of $29,198.75, plus interest. Two of the installments had been paid on this note prior to decedent’s death.

Decedent learned on November 14, 1973, after being hospitalized in Union Memorial Hospital in El Dorado, Arkansas, that he was suffering from an advanced stage of cancer. On this same date decedent executed a deed in his hospital room conveying the twenty-acre tract back to his brother-in-law, McCorvey, for a recited cash consideration of $10,500.

On December 3, 1973, decedent executed a promissory note to McCorvey in El Dora-do representing a loan of $50,000. To secure the purported loan, decedent pledged the note given him for the credit portion of the sale of the Tennessee property on which there was an approximate balance owed of $60,000. The next day, December 4, decedent again entered the hospital for surgery. His health continued to decline until his death on March 1, 1974.

Decedent left a will with only one bequest, a $10 legacy to Richard Johnson. The will was not probated because his widow decided there was no property in his estate. To comply with an exception of nonjoinder of indispensable parties, an administrator of the decedent’s estate has been appointed.

Plaintiff contends the sale and loan are simulations made for the sole purpose of depriving him of his. inheritance and both transactions should be annulled. The district court rendered judgment annulling the sale and loan, but rejected plaintiff’s claim for damages. Mrs. Johnson and McCorvey have appealed and plaintiff, Richard Andrew Johnson, has answered the appeal requesting he be awarded damages for the denial of his inheritance. The trial court’s decision is affirmed for the following reasons:

The defendants contend the trial court lacked jurisdiction to determine the validity of the loan because the contract was perfected in Arkansas, and the notes evidencing and securing the loan were located outside of Louisiana.

Defendants presented no evidence to demonstrate the law of Arkansas governing the question at issue. In the absence of such evidence, the court must presume that the applicable law is the same as the law of Louisiana. Welch v. Jacobsmeyer, 216 La. 333, 43 So.2d 678 (1949); Cambre v. St. Paul Fire and Marine Insurance Co., 331 So.2d 585 (La.App. 1st Cir. 1976), writ denied 334 So.2d 434, 435 (La.1976); Succession of Shadrick, 129 So.2d 606 (La.App. 2d Cir. 1961).

Forced heirs may attack simulated obligations made by their parents. LSA-C.C. Art. 2239. Should a reasonable doubt be created as to the validity of the transaction, the burden of proof switches to the opposing party to dispel the doubt as to the authenticity of the contracts. Smith v. Smith, 239 La. 688, 119 So.2d 827 (La.1960); Ingram v. Freeman, 326 So.2d 565 (La.App. 3d Cir. 1976), writ denied 329 So.2d 755, 757 (La.1976); Joyner v. Batchelor, 206 So.2d 744 (La.App. 2d Cir. 1968).

The evidence in this case clearly creates a reasonable doubt as to the validity of the sale and loan. The parties to the transactions are close relatives. Decedent transferred title to the matrimonial domicile to McCorvey on the same date he learned of his cancer. After the sale, decedent and his wife continued to live on the land rent free until decedent’s death. Mrs. Johnson was living on the property rent free at the time of trial. The retention of the land by the vendor creates a presumption of invalidity as to the sale. Article 2480. In addition, decedent sold the property for less than his purchase price even though he had made substantial improvements on the land. McCorvey could not adequately prove the payment of the purchase price. Although a friend of decedent and McCorvey was called to decedent’s residence to witness the exchange of $10,500 three days after the execution of the deed, there are no bank records indicating Johnson’s subsequent deposit of the purchase price. This collection of facts clearly establishes a prima facie case of simulation which has not been refuted by defendants. The trial court correctly held the sale of the immovable property to be null and void.

The loan transaction was completed under similar circumstances. Decedent signed the note to McCorvey purporting to evidence a loan for $50,000 the day before he had a critical cancer operation. The note pledged to secure this loan depleted the final significant part of decedent’s estate. The circumstances surrounding the loan create suspicions in the mind of a reasonable person. Decedent was not in any financial stress. On the date of the loan, he had over $18,000 in his checking account and was carrying nearly $13,000 on his person. Decedent’s widow testified that the loan was needed to pay medical expenses. However, the evidence demonstrates that insurance and Medicare paid all but $1,633.62 of the medical bills. Although the parties again had friends witness the actual transfer of the money, there is no further record of its retention by Johnson. McCorvey has not shown with any degree of acceptability his financial ability to have made such a large loan. The trial court correctly declared the loan a simulation and ordered it annulled.

Although Mrs. Johnson and McCorvey apparently acted to prevent Richard Johnson from receiving his inheritance, there is an absence of specific evidence of intent which is necessary to prove an actual fraud. See Succession of Nelson, 224 La. 731, 70 So.2d 665 (La.1953). The trial court was, therefore, correct in denying plaintiff’s claim for damages.

The judgment is affirmed. Costs of this appeal are assessed to the appellants, Lorene Johnson and John W. McCorvey, Sr.


text:
    Faris Cooper MEYERS, Plaintiff-Appellee, v. Emmett Clyde MEYERS, Defendant-Appellant.
    No. 13186.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.

      Bice, Russell & Allen by Charles B. Bice, Winnfield, for defendant-appellant.
    Love, Rigby, Dehan & Love by Truly W. McDaniel, Shreveport, for plaintiff-appel-lee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Dr. Emmett Clyde Meyers and Faris Cooper Meyers were divorced on April 3, 1975. Mrs. Meyers filed a Rule against Dr. Meyers on April 14, 1976, seeking permanent custody of their minor children, a son, age 14, and a daughter, age 16, and child support, along with $2000 per month for permanent alimony. From a trial court judgment awarding Mrs. Meyers the permanent custody of the children, $500 per month per child as child support, and $1500 per month as alimony, Dr. Meyers appeals.

Dr. Meyers complains the trial court award of alimony to his former wife was erroneously granted. He alternatively argues the amount awarded was excessive and unsupported by the evidence.

Dr. Meyers’ first argument is that the record contains no evidence his former wife was in necessitous circumstances and she is therefore not entitled to alimony under C.C. Art. 160. We disagree.

Mrs. Meyers testified she had no income from employment, she had held garage sales to obtain grocery money, and friends and relatives had donated groceries to help her out. Considering these statements along with the other testimony and evidence presented at trial, including Mrs. Meyers’ income tax return, we cannot say the trial court was erroneous in concluding Mrs. Meyers was in necessitous circumstances.

Dr. Meyers alternatively argues even if his former wife is entitled to alimony, the trial judge erred in awarding the sum of $1500 per month. We agree.

The term “maintenance”, as used in C.C. Art. 160, while meaning primarily food, clothing, and shelter, also includes such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, along with the income tax liability generated by alimony payments. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). Further, the amount necessary for maintenance of a divorced wife is to be determined by the circumstances of each particular case. Frederic v. Frederic, 302 So.2d 903 (La.1974).

After reviewing both Mrs. Meyers’ detailed list of expenses and her testimony concerning those expenses, and after considering the circumstances of this case, we feel the trial judge abused his discretion in awarding alimony of $1500 per month.

Mrs. Meyers presented a detailed list reciting her necessary expenses, which to-talled approximately $2000 per month. In this list Mrs. Meyers requested amounts for items clearly not within the scope of C.C. Art. 160 or Bernhardt, supra, including a substantial tithe to her church, recreation expenses, vacation expenses, maid expense, and life insurance premiums for a policy on Dr. Meyers’ life. Mrs. Meyers also requested clearly excessive amounts for fees in connection with the preparation of her tax returns, for groceries for herself and for the income tax liability generated by the alimony she received, among others.

When an appellate court finds the trial court erred in the amount of its award for alimony, the appellate court is not free to award an amount it considers “appropriate” based on the evidence, but can only lower the amount to the highest point which is reasonable within the discretion of the trial court. After finding that Mrs. Meyers’ request for $2000 per month as permanent alimony was clearly excessive in an amount exceeding $800, we hold under the circumstances of this case, the trial court could not have awarded more than $1200 per month without abusing its discretion.

Dr. Meyers additionally objects to certain amounts he claims were included in the awards for child support. We find nothing in the trial judge’s reasons which indicate these amounts were included in the award, and further find the total amount of the award for child support was clearly reasonable in light of Dr. Meyers’ income, which was in excess of $85,000 in 1975. Children are entitled to be maintained in the same standard of living as would be their custom if living with their father. Pettitt v. Pettitt, 261 So.2d 687 (La.App., 2d Cir. 1972).

For the foregoing reasons, the judgment of the trial court is modified to reduce the amount of alimony awarded to Mrs. Meyers to the sum of $1200 per month, costs of this appeal to be paid by appellee.

Affirmed as modified.

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


author: MARVIN, Judge.

text:
    James Edwin POWELL, Plaintiff-Appellant, v. Margaret Lee POWELL, Defendant-Appellee.
    No. 13188.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.

      Maynard E. Cush, Shreveport, for plaintiff-appellant, John E. Powell.
    Love, Rigby, Dehan & Love by Kenneth Rigby, Shereveport, for defendant-appellee, Margarett Lee Powell.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

On the rule of the plaintiff ex-husband to terminate permanent alimony, judgment was rendered reducing monthly alimony from $300 to $200 and awarding the ex-wife her attorney fees and expenses of traveling from New Orleans to Shreveport for the trial of the rule. The ex-husband appeals. We affirm the reduction and reverse the award of attorney fees and travel expenses.

In late 1974, plaintiff and defendant were legally separated in Caddo Parish and defendant was awarded $300 monthly as alimony pendente lite. Shortly thereafter, plaintiff obtained an Arkansas divorce incorporating a permanent alimony award to defendant for this amount. By conventional agreement, plaintiff and defendant partitioned their community property and obtained a Louisiana decree in April, 1975, granting full faith and credit to the Arkansas judgment. It was agreed that the ex-wife was not at fault and would not be barred from receiving permanent alimony. Nineteen months later, plaintiff filed the instant rule to terminate permanent alimony on grounds including an increase in defendant’s financial circumstances and a decrease in plaintiff’s.

The record shows:

(A) Defendant moved from Shreveport to New Orleans after the divorce. Her net earnings from employment increased by $117. Her expenses for housing also increased by a similar, but lesser, amount. Her medical expenses increased. Defendant sold property in Shreveport which was received by her in the partition of the community. She still has some portion of the net sales proceeds of $14,000.

(B) Plaintiff changed jobs and married again after the divorce. His gross income from employment is approximately the same. His net income ($900 monthly) over a 10-month period, may have been approximately $200 less per month, if he is obligated to repay amounts advanced by his employer in excess of his earned commissions for that period. His living expenses have increased, primarily because he and his new wife have purchased a new home ($34,000), furnishings ($5,000) and automobile. Plaintiff’s new wife has gross earnings of $1,100 a month.

The record supports the reduction in permanent monthly alimony from $300 to $200. When pendente lite or permanent alimony is originally sought by the wife, she has the burden of establishing her needs. When the ex-husband seeks to terminate or reduce alimony on grounds including a decrease in her needs, the burden is on him, not her, to establish this. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

While one ex-spouse may not voluntarily commit unreasonable acts which affect the alimony or support obligations owed the other ex-spouse and employ these as grounds to modify a prior support or alimony award, the totality of the circumstances created by reason of a second marriage of one or both ex-spouses should be considered in determining a modification of an alimony or support award. Marcus v. Burnett, 282 So.2d 122 (La.1973) and cases discussed therein. The earnings of plaintiff’s second wife, and the reasonableness of plaintiff’s claimed expenses of the second marriage, have been considered in determining the plaintiff ex-husband’s ability to pay. The record supports the lower court’s denial to terminate permanent alimony and allowing a reduction instead.

Defendant’s assets, whether the property in Shreveport or its equivalent (the cash proceeds from its sale), were available to her when the alimony award was ordered. She is not required to exhaust these assets to remain legally eligible (in necessitous circumstances) for permanent alimony. Loe v. Loe, 131 So.2d 106 (La.App. 2d Cir. 1961).

An award of attorney fees to the ex-wife after separation or divorce has not been allowed in the absence of contract or statute. Stanfield v. Stanfield, 342 So.2d 1195 (La.App. 2d Cir. 1977). Likewise, the award for her travel expenses will not be allowed.

Defendant seeks a remand for the purpose of showing extraordinary medical expenses incurred or paid by her allegedly exceeding $6,000, as well as her unemployment because of serious illness. In Gallagher v. Gallagher, 248 La. 621, 181 So.2d 47 (1965), a remand was allowed for additional evidence concerning the husband’s ownership of an automobile and his employment at the time of the trial below. Here, the alleged basis for remand did not exist at the time of the trial below, but arose afterward, The record is complete on the issues presented by the pleadings below. For these reasons, the motion to remand is denied. Defendant is not barred from showing in another proceeding the alleged changes in her circumstances which may have arisen after the trial of the present rule.

Judgment awarding attorney fees and travel expenses to defendant is reversed. Judgment decreasing the monthly permanent alimony award is affirmed. Costs of this appeal are assessed one-half to each litigant.

      . See Dunckleman Dist. Co., Inc. v. Hyde, 334 So.2d 236 (La.App. 2d Cir. 1976).


text:
    AMERICAN BANK & TRUST CO. IN MONROE, Plaintiff-Appellee, v. CARSON HOMES, INC., et al., Defendants-Appellants. AMERICAN BANK & TRUST CO. IN MONROE, Plaintiff-Appellee, v. Loyd C. FOX et al., Defendants-Appellants. AMERICAN BANK & TRUST CO. IN MONROE, Plaintiff-Appellee, v. Loyd C. FOX, d/b/a Carson City Lumber Company, Defendant-Appellant. AMERICAN BANK & TRUST CO. IN MONROE, Plaintiff-Appellee, v. LAKESHORE REAL ESTATE EXCHANGE, INC., Defendant-Appellant.
    Nos. 13191-13194.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied in No. 13193, April 25, 1977.

    Writ Refused June 8, 1977.

      Milton P. Masinter, New Orleans, for defendants-appellants Carson Homes, Inc., Lakeshore Real Estate Exchange, Inc., Loyd Fox, dba Carson City Lumber Co. & Loyd Fox individually.
    Thomas H. Fowler, Jr., Monroe, for defendant-appellant Foundation Apartments, Inc.
    Blackwell, Chambliss, Hobbs & Henry, by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.

       JONES, J., took no part in rehearing.

   PRICE, Judge.

In these consolidated suits American Bank and Trust Co. in Monroe seeks to collect the balance owed by Loyd C. Fox, Carson Homes, Inc., and Carson City Lumber Company, which are firms owned by Fox, on a series of promissory notes and to enforce four mortgage notes pledged to secure these loans. The mortgages cover three tracts of real estate owned by Carson Homes and one owned by Lakeshore Real Estate Exchange, a corporation under the ownership and management of Betty D. Fox, wife of Loyd Fox. The loans were to provide interim financing for a construction project of Fox and Carson Homes in Monroe.

Fox, Carson Homes, and Lakeshore Real Estate suffered financial difficulties and conveyed the mortgaged real estate to Lamar Construction Supply Co., Inc., a corporation owned by Mrs. Fox’s brother.

Following a default in payment on the loans which the mortgage notes were given to secure, American Bank filed an executo-ry process suit against Carson Homes and Lakeshore Real Estate. On writs of review, the Supreme Court held the mortgages were not by authentic act as they were not signed before a Notary and two witnesses and enjoined the executory proceeding. See American Bank and Trust Co. in Monroe v. Carson Homes, Inc., 316 So.2d 732 (La.1975). During the interim period between the rendition of the Supreme Court opinion and the filing of this proceeding, Lamar Construction transferred the mortgaged properties to Foundation Apartments, Inc.

Lamar Construction and Foundation Apartments were made parties to this suit to assert any opposition they had to the enforcement of the mortgages.

All defendants answered admitting the execution of the notes and mortgages, but contending the mortgages cannot be enforced against third parties since they were not in authentic form. Fox, Carson Homes, and Lakeshore Real Estate reconvened for damages of $2,035,000 based on allegations of fraud, deceit, and breach of contract by American Bank in failing to advance monies for the construction project as it had agreed to do. Lamar Construction and Foundation Apartments also reconvened for damages against American Bank for slander of their titles and other related damages.

American Bank filed a motion for summary judgment alleging there is no genuine issue of fact surrounding the validity of the notes sued upon or the balance owed thereon and that the signatures of the mortgagors have been judicially acknowledged by Loyd Fox in other proceedings. The plaintiff further alleges that Foundation Apartments has admitted having actual knowledge of the existence of the mortgages at the time of acquisition of the subject properties.

The district court granted summary judgment against Fox and Carson Homes on three of the notes sued upon for the sums of $266,507.89, $89,359.56, and $5,000. Summary judgment was denied on the fourth note for $481,305.00 as the interest rate was at a variable percentage to be determined by the prime rate of First National City Bank of New York. American Bank filed a subsequent motion for summary judgment in which it remitted the stipulated interest on the fourth note and judgment was accordingly rendered for the principal amount of this note against Fox and Carson Homes.

These judgments recognized the validity of the mortgages and ordered the sale of the property to satisfy the judgments.

Foundation Apartments also filed a motion for summary judgment seeking a declaratory judgment holding the mortgages have no effect against the properties purchased by it from Lamar Construction. This motion was denied by the trial court.

Fox, Carson Homes, Lakeshore Real Estate, Lamar Construction, and Foundation Apartments have appealed making the following assignments of error:

(1) The defendants were prejudiced by the trial court’s refusal to grant a continuance of the summary judgment hearing because of the inability of defendants’ principal attorney to be present on this date.
(2) The judgment recognizing the validity of the mortgages was erroneous as they were not in authentic form and the properties covered thereby passed free and clear of these invalid mortgages to Lamar Construction and Foundation Apartments.
(3) The court improperly rendered summary judgment partially disposing of this litigation in view of defendants’ recon-ventional demand for damages for fraud, deceit, and misrepresentation.

FIRST ASSIGNMENT OF ERROR

Defendants’ complaint that they were prejudiced by the refusal of the trial court to grant a continuance of the hearing date on the motion for summary judgment is without merit. The motion for summary judgment was set for May 10, 1976. The May 10th hearing was upset after the defendants successfully urged the recusal of the judge who was to hear the motion. The hearing was then set for May 26th, but the May 10th deadline for filing of affidavits on the motion was retained. On May 26th, the hearing was again continued to June 2nd at the request of the defense attorneys. On June 2nd, the defendants sought another continuance, but the motion was overruled. The court extended the period for filing briefs or additional affidavits until June 10th. Defendants had no peremptory grounds for a continuance. The rejection of defendants’ request was within the sound discretion of the trial court.

SECOND ASSIGNMENT OF ERROR

The trial court was correct in holding that the mortgages, although not authentic acts, put Lamar Construction and Foundation Apartments on notice that the properties covered by the instruments were encumbered, and their purchases were subject to the mortgages.

The instruments were recorded prior to the sale of the property to Lamar Construction and Foundation Apartments. It is not necessary that properly recorded mortgages be by authentic act to affect third persons. An instrument under private signature has the same effect. Stallcup v. Pyron, 33 La.Ann. 1249 (1881); Allen, West & Bush v. Whetstone, 35 La. Ann. 846 (1883).

All material facts underlying plaintiff’s right to have the mortgages recognized as effective against the property now owned by Foundation Apartments are undisputed and were properly disposed of by summary judgment.

THIRD ASSIGNMENT OF ERROR

Defendants complain of the trial court’s rendering a partial summary judgment and in permitting the plaintiff to remit a part of their demand after the original hearing to obtain the second summary judgment. A summary judgment may be granted for “all or part of the relief for which he has prayed.” LSA-C.C.P. Art. 966. After the remittitur removed the only disputed fact in connection with the $481,-305 note the court clearly had the authority under this article to render an additional summary judgment.

Fox, Carson Homes, and Lakeshore Realty contend a summary judgment should not have been rendered because there is a genuine issue of fact raised by their demands for damages against American Bank for fraud, deceit, and misrepresentation on which they have demanded trial by jury.

A request for trial by jury does not of itself preclude a motion for summary judgment. Cheramie v. Louisiana Power & Light Company, 176 So.2d 209 (La.App. 4th Cir. 1965).

As we construe defendants’ pleadings, the allegations of fraud, deceit, and misrepresentation are not urged as a defense to the demands of plaintiff, but are asserted as a separate cause of action for damages by reconventional demand. There are no affidavits filed in connection with these demands. The allegations of fact made by defendants in their reconventional demand are not directed at any invalidity in the confection of the notes or mortgages sued on or to dispute the balance owed thereon. The allegations relate to damages suffered by Fox and Carson Homes because of the refusal of the bank to carry out the full extent of its alleged commitment to provide financing for construction on a project started by these defendants. The damages sought are in essence urged as an offset or in compensation against the demands of the plaintiff.

The claims of defendants for damages are unliquidated. Compensation can only take place between two debts having equally for their object a sum of money or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. LSA-C.C. Art. 2209. An unliquidated claim for damages cannot be pleaded in compensation against a liquidated claim based on a promissory note. Dial Real Estate, Inc. v. Isbell, 256 So.2d 133 (La.App. 3d Cir. 1971); McDaniel v. Rumore, 110 So.2d 860 (La.App. 2d Cir. 1959); Del Bondio v. Albrecht, 181 So. 610 (La.App. Orl. 1938).

The summary judgments have no effect on defendants’ action for fraud which is separate and distinct from the undisputed issues covered by these partial judgments. The judgments are in accord with the provisions and intent of the summary judgment statutes, and they are affirmed at appellants’ costs.