author: SAMUEL, Judge.

text:
    Cecile L. ANDRY v. F. R. KINBERGER, M. D. and St. Paul Fire & Marine Insurance Company.
    No. 9380.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Murray, Murray, Ellis, Braden & Landry, W. Glenn Burns and Julian R. Murray, Jr., New Orleans, for plaintiff-appellant.
    Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., and Denis, Paul Juge, New Orleans, for defendants-appellees.

      Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against defendants, F. R. Kinberger, M. D., and his liability insurer, St. Paul Fire & Marine Insurance Company, seeking damages for personal injuries sustained by her when she fell on the front steps of the Kinberger residence after attending a card party. Defendants answered, denied the allegations of the petition, and asserted contributory negligence and assumption of risk as affirmative defenses.

After a jury trial, a verdict was returned against plaintiff and in favor of defendant, St. Paul Fire & Marine Insurance Company. Judgment was rendered on that verdict, and plaintiff has appealed from that judgment.

On May 26, 1975 plaintiff, then eighty years old, arrived at the Kinberger home at approximately 10:30 a. m. accompanied by two friends, Mrs. Isabelle Booksh and Mrs. Norman White. Plaintiff, Mrs. Booksh, Mrs. White and Mrs. Kinberger were a regular bridge foursome and had played together for several years. The group had played cards at the Kinberger home between three and five times.

At approximately 4:30 p. m. the ladies terminated their card game. They proceeded from the card table to the front porch and main exit escorted by their hostess, Mrs. Kinberger. Plaintiff attempted to leave the Kinberger home by walking down a set of four concrete steps which were attached to the porch.

Mrs. White descended the steps first, and plaintiff, with the aid of Mrs. Booksh, followed closely behind her. It is undisputed Mrs. Booksh assisted plaintiff down the steps because they had no railings, they were high, and there existed a break or cleavage between two of the steps. Moreover, there was a difference in distance and angle between the third and fourth steps when compared with the other steps in the set.

Mrs. White went down the steps without, incident, and plaintiff, with the assistance of Mrs. Booksh, safely descended the first three steps. However, she was unable to maintain her balance on the fourth step, allegedly because of the irregularity in distance and angle of that step as compared with the others. When plaintiff attempted to place her foot on the fourth step, she lost her balance and fell to the ground, breaking her collar bone and sustaining other less serious injuries. Plaintiff’s recovery was somewhat complicated and impeded because of her age.

Plaintiff’s suit was based on two theories of recovery. First, she alleged the Kinber-gers were negligent in failing to maintain their steps in a reasonably safe condition for their intended use and on their failure to warn persons using the steps of their dangerous condition. Second, she alleged the Kinbergers, and consequently the defendant insurer, were strictly liable for the defective condition of the Kinberger premises in accordance with Articles 2315, 2317, and 2322 of the Louisiana Civil Code.

The jury’s verdict was based upon answers to specific interrogatories submitted to it. The jury found (1) the steps in question were defective, (2) the defect in the steps was a result of a vice in their original construction, (3) the owner of the house was guilty of no negligence which proximately caused plaintiff’s injury, and (4) plaintiff was guilty of contributory negligence or assumption of risk.

The jury’s answer to the last interrogatory, whether plaintiff was guilty of contributory negligence or assumption of the risk, was “yes”. Plaintiff asserts as error the trial judge’s conclusion that this finding was sufficient to defeat her claim for damages in a strict liability action under Louisiana law. Implicit in this argument is the trial judge’s failure to instruct the jury on the difference between contributory negligence and assumption of risk. In addition, plaintiff urges error in several charges given the jury at the request of the defendant and argues the trial judge should have instructed the jury on the doctrine of comparative negligence.

Plaintiff makes no serious argument regarding the first three findings by the jury. She tacitly concedes the doctrine of manifest error prevents this court’s rejecting the jury’s finding that the steps were defective, that the defect was a result of a vice in the original construction of the steps, and that the owner of the house was not guilty of negligence which caused the injury.

Now relying solely on strict liability, plaintiff’s argument is based on the theory that the trial court acted in error by rendering judgment on a finding that plaintiff was guilty of “contributory negligence or assumption of the risk” without specifically distinguishing whether it held her guilty of contributory negligence or of assumption of risk. The basis for this argument is the Supreme Court decision of Langlois v. Allied Chemical Corporation, which held assumption of risk is the only defense in a strict liability case. Plaintiff contends that if the jury concluded she was guilty only of contributory negligence she would be entitled to a remand for a new trial.

The record in this case clearly reveals plaintiff was guilty of assumption of risk. The doctrine of assumption of risk involves the existence of a risk of bodily harm, knowledge by the injured person of the risk, and the injured person’s voluntarily subjecting himself to injury by the known risk.

The testimony shows plaintiff had come to the Kinberger home on at least three prior occasions. Plaintiff, as well as the two younger friends who accompanied her, all acknowledge the dangerous condition was visible and was discussed by them. Plaintiff specifically admitted the condition of the steps was visible and known to her. She testified she knew it was dangerous but that she decided to “take a chance the third time.” The evidence thus shows plaintiff knowingly and voluntarily accepted the risk when she understood and appreciated the inherent possibility of injury because of the risk.

A case similar to the one now before the court is Hurst v. Hardware Mutual Casualty Company, in which the appellant contended the wording of interrogatories made impossible a determination of the basis of the jury’s verdict. The court held such a problem not grounds for reversal because the verdict was consistent with the evidence. It is a well established principle in Louisiana that even if errors are made in jury interrogatories or charges, an appellate court has the duty to review the facts in the record and affirm the verdict if it is consistent with the evidence. In the instant case the evidence in support of plaintiff’s assumption of risk is so strong that if the jury had returned a verdict in favor of plaintiff, it would have been incumbent upon this court to reverse the jury’s finding as manifestly erroneous in spite of the broad discretion afforded the trier of fact in Louisiana.

In view of our holding that the evidence establishes plaintiff’s assumption of risk, with perhaps one exception, the other issues raised by her as errors are rendered moot. The exception referred to is plaintiff’s objection to, and allegation of error in, the trial court’s failure to give a charge on comparative negligence. Plaintiff admits the Louisiana rule, established by numerous eases, is to the effect that regardless of the extent of a defendant’s negligence, a plaintiff may not recover if his own contributory negligence was a proximate cause of the accident. The simple answer to this argument is that many of the cases so holding were handed down by the Supreme Court of Louisiana, whose jurisprudence we are required to follow.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Prior to trial plaintiff dismissed her suit against the individual defendant, Dr. Kinberger, reserving all rights against his insurer.

      . See Dyson v. Gulf Modular Corp., La., 338 So.2d 1385; Roussel v. Colonial Sugars Company, La., 318 So.2d 37; Canter v. Koehring Company, La., 283 So.2d 716.

      . 258 La. 1067, 249 So.2d 133; see also Wunstell v. Crochet, La.App., 325 So.2d 727.

      . See, for example, McInnis v. Fireman’s Fund Insurance Company, La., 322 So.2d 155.

      . La.App., 234 So.2d 802.

      . See, for example, Druilhet v. Comeaux, La.App., 317 So.2d 270, cert. denied, La., 321 So.2d 363 (1975).


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Rodney HOPKINS et al., Plaintiffs-Appellees, v. DEPARTMENT OF HIGHWAYS, State of Louisiana, Defendant-Appellant.
    No. 6606.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Dec. 15, 1978.

      Mengis, Roberts, Durant & Carpenter by Charles W. Roberts, David K. Balfour and Sharon P. Frazier and Richard M. Sandefer, Baton Rouge, for defendant-appellant.
    Davis & Simmons by Kenneth N. Simmons, Many, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a suit brought by property owners, Rodney Hopkins, Melvin Raiford, and the widow and heirs of Odis C. Faust, Sr., Doris Stewart Faust, Frances Faust Hopkins, Odis C. Faust, Jr., and James Shelby Faust, in order to recover damages to their land allegedly caused by the Department of Highways. A permanent injunction against the Department of Highways was also sought.

This suit was before us twice before. We first denied supervisory writs on an issue involving the disqualification of witnesses during trial. Hopkins v. Department of Highways, our No. 5302, November 13, 1975. The second time it was before us, we reversed the trial court’s judgment on a procedural issue. The case was remanded for the taking of additional evidence and for the rendition of a new judgment. Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3rd Cir. 1977). Trial on remand has been completed and a new judgment rendered. On this appeal, we reach substantive issues not discussed in the previous appeal.

All parties are property owners in Sabine Parish, Louisiana. The Highway Department owns a 5.8 acre tract upon which it operates a highway maintenance unit. The Faust widow and heirs own five acres adjoining the western boundary of the Highway Department tract; Hopkins owns five acres immediately west of the Faust tract; and Raiford owns thirty acres on the western boundary of the Hopkins tract. The Raiford tract also borders the northern boundary of the Hopkins and Faust tracts. A small depression runs through the Highway Department’s tract and across the Hopkins, Raiford, and Faust tracts, which constitutes a natural drain.

Plaintiffs allege that the Highway Department allowed oil, grease, and tar waste to enter and contaminate the water in the ditch. They also allege that asphalt, as well as large amounts of sand stockpiled on the Department property, entered the ditch and flowed onto their land.

Suit was filed in order to recover the damages sustained as a result of these activities and for a permanent injunction restraining the Highway Department from allowing this condition to continue.

After lengthy proceedings, judgment was ultimately rendered awarding damages in the amount of $11,174.00 for Mr. Hopkins; $14,773.00 for Mr. Raiford; and $7,646.00 for Mr. Faust’s widow and heirs. In addition, a permanent injunction enjoining the defendant from dumping oil, grease, tar waste and residue, and red sand was ordered. The judgment also provided that the Department of Highways pay all costs of the proceedings, including expert witness fees. Defendant appeals on several grounds.

The first specification of error raised by the Department of Highways is that plaintiffs failed to establish by a preponderance of the evidence all of the elements necessary to find liability.

We are of the opinion that this is a suit for property damages resulting from a proprietor’s violation of the obligations imposed by Article 667 of the Civil Code. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Joubert v. State, through State Park and Recreation Commission, 345 So.2d 220 (La.App. 3rd Cir. 1977); Carr v. City of Baton Rouge, 314 So.2d 527 (La.App. 1st Cir. 1975), writ denied, 318 So.2d 53 (La.1975).

In order to recover under Article 667, it is necessary to prove:

1. That the defendant is a neighboring proprietor;
2. That the property of plaintiffs has sustained damage through a work or activity;
3. That the defendant is responsible for the work or activity; and
4. That there is a sufficient causal relationship between the work or activity and the damage sustained.

Stone, 12 La.Civil Law Treatise, Tort Doctrine, Section 231 (1977). See Carr v. City of Baton Rouge, supra.

We have carefully examined the record in this case and feel that plaintiffs have discharged the burden of proof necessary to hold the defendant liable.

There was no issue raised concerning whether plaintiffs and the Highway Department were neighboring proprietors. Nevertheless, certified copies of the respective deeds of the parties are contained in the record, which we feel clearly disposes of the first element required.

There was also ample evidence to support the second element required, namely that plaintiffs’ property had been damaged. Several photographs introduced into evidence by plaintiffs showed clumps of asphalt on their land, as well as a filmy substance on the surface of the water in the ditch. They also showed sand deposits. In addition, the testimony of several witnesses for both plaintiffs and the defendant indicated that asphalt and sand deposits were on the land and that oil was in the ditch.

With regard to the third element, relative to the responsibility of the defendant for the work or activity, the evidence in the record established that the Highway Department used their property for the servicing and storage of maintenance equipment. A grease rack was present on the property, where oil from departmental trucks would be changed regularly. There were two asphalt storage tanks on the property, which were used to replenish maintenance trucks that would do road repair work. Large stockpiles of sand, clay, and gravel were also present.

With regard to the fourth element, concerning causation, the testimony of several witnesses gave rise to an inference that the sand, oil, and asphalt found on plaintiffs’ property came from defendant’s property. Roy Maines, a former superintendent of the unit, stated that when oil was changed in the trucks, his workers sometimes let the oil run into the natural drain. Wilbur Wooly, the present superintendent of the unit, testified that although his orders are that oil is to be placed in a large drum and disposed of off of the maintenance site, disposal of the oil on the Faust property still could be possible.

With regard to sand, Caroll Wascom, an expert geologist called by the defense, stated that the red sand stockpiled on the Department’s property could wash down into the ditch in the natural process of rainfall and erosion. He further stated, on cross-examination, that a soil sample taken on the Faust tract matched that of a sample taken from a sand deposit on the Department’s tract.

Finally, there was the testimony of one of the plaintiffs, Rodney Hopkins, who stated that in April of 1974 he noticed large amounts of oil and asphalt on his property. He testified that he sought out the origin of these materials at that time and discovered that there was no indication that the materials came from any other property lying above that of the defendant. He concluded from his observations that the oil and asphalt must have come from the Department property.

In short, we feel that there is sufficient evidence in the record to sustain the trial judge’s finding of liability.

Defendant’s second specification of error is that the inclusion of an amount for emotional distress in the award was erroneous. Defendant also contends that the amount awarded for property damages is excessive.

The trial judge’s award may be broken down as follows:

HOPKINS PROPERTY
Property damage . $ 7,674.00
Emotional distress, disturbance, lack of use of property, and damage to trees .$ 3,500.00
Total.$11,174.00
RAIFORD PROPERTY
Property damage .$11,273.00
Emotional distress, disturbance, lack of use of property, and damage to trees .$ 3,500.00
Total.$14,773.00
FAUST PROPERTY
Property damage .$ 4,146.00
Emotional distress, disturbance, lack of use of property, and damage to trees . $ 3,500.00
Total.$ 7,646.00

We will first discuss the amounts awarded for property damage. The trial judge used as a measure of property damage the decrease in the market value of the property, as determined by the appraisal report and testimony of one of plaintiff’s expert appraisers, T. J. Stephens. Stephens reached his dollar value for damages by appraising the value of the land and improvements, and then multiplying the total value by twenty percent. This twenty percent figure was his assessment of the magnitude of damage to the properties.

We feel that this procedure was erroneous and resulted in an unduly high estimate of damages. For example, the Raiford tract consisted of approximately thirty acres of land. However, the tract had highway frontage of less than 135 feet. On the front part of the property was located a rental house and the Raiford residence, and these home sites occupied only about 9 acres. The ditch was located approximately 1,000 feet behind these homes on the undeveloped, rear twenty-one acres. Stephens assessed the value of the rental house and accompanying land at $8,703.00; the Rai-ford residence and accompanying land at $39,263.00; and the remaining rear acreage at $8,400.00. He reached a total value of $56,366.00 and then multiplied this figure by twenty percent in order to reach a damage figure of $11,273.00. Stephens used the same method to reach a dollar value of damages on the Hopkins and Faust tracts.

We think it obvious that the damage sustained by the ditch and surrounding land had no effect on the value of the residential property involved.

We feel that a fairer and more realistic approach would be to take the acreage of land actually affected by the damaged stream and determine its before and after value, using the figures provided by Stephens.

The Hopkins and Faust tracts consisted of only five acres each. We think it fair to assume that the entire five acres should be considered in appraising the damage for each one of these tracts. For the Hopkins tract, Stephens determined that the land had a value of $1,737.00 per acre, or $8,685.00 for the whole, minus a twenty-five percent deduction for the lack of level terrain, which yields a total value of $6,514.00. Using the twenty percent damage figure, the dollar amount of property damage would be $1,302.80. For the Faust tract, Stephens reached the same value of $1,737.00 per acre, or $8,685.00 for the whole, minus a thirty percent deduction for the lack of level terrain, which yields a total value of $6,079.00. Using the twenty percent damage figure, the dollar amount of property damage would be $1,215.80.

The Raiford tract involves a different situation because the acreage involved in the home sites are not in close proximity to the damaged drainage ditch. We feel that this acreage should not be considered in assessing damages. However, we do feel that the entire twenty-one acres of undeveloped land through which the drain runs should be considered. Stephens assigned a value to this land of $400.00 per acre, or $8,400.00 for the whole. Using the twenty percent damage figure, the dollar amount of property damage would be $1,680.00.

We now move to defendant’s contention concerning the $3,500.00 awarded to Hopkins and Raiford, and on behalf of Faust, for emotional distress, disturbance, lack of use of the property, and damage to trees. After examining the record, we find that there is insufficient evidence to support any award for emotional distress, disturbance, and lack of use of the property. The only testimony bearing on emotional distress was that of Hopkins, who merely stated that he lost some time in examining the damage to his land and in talking to Highway Department personnel about the damage. There was no evidence with regard to the emotional distress of Raiford or Faust. There was some testimony concerning plans for future use of the property; however, it is speculative in nature and, in our opinion, insufficient to support an award for this item. With regard to disturbance, we feel that this item is adequately compensated in the award for property damage.

However, there was quantitative evidence bearing on the loss of trees from a defense witness, James D. Noel, accepted as an expert in forestry. Noel testified that the value of the timber lost in the dead trees would be $5.70 for Hopkins, $45.60 for Raiford, and $8.67 for Faust. We will award these amounts in lieu of the $3,500.00.

Defendant’s last specification of error is that the trial judge erroneously overruled its exception of no cause of action relating to plaintiffs’ demand for costs, and erroneously assessed costs, including expert witness fees, against the Highway Department.

At the time judgment was rendered, the applicable law was found in La.R.S. 13:4521, which would have exempted the Department from paying all court costs, except stenographer’s fees. Act 467 of the 1978 Regular Legislative Session modified the existing law by adding a new statute, La. R.S. 13:5112, and by amending the previous one, La.R.S. 13:4521. This Act became effective on September 8, 1978, while appeal was pending before this Court.

La.R.S. 13:5112 provides:

“The state of Louisiana or any board, department, commission and agency thereof may pay at the discretion of the court all court costs, including, but not limited to, filing fees, court stenographer fees, and expert witness fees when it is cast in judgment in a suit in which it is a defendant, however, neither the Office of Employment Security nor the administrator shall be cast for costs in any judicial review proceeding under the provisions of R.S. 23:1634.”

La.R.S. 13:4521 now provides:

“Except as provided in R.S. 13:5112 and as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board, or commission shall be required to pay court costs in any judicial proceeding, instituted or prosecuted by or against the state or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the parish of Orleans and the city of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”

This case presents an interesting situation. At the time judgment was rendered by the trial judge, he was without authority to assess costs, except stenographer’s fees, against the Highway Department; however, while the case was pending in this court, the prohibition against assessing costs was removed. Since these statutes are procedural in nature, and, hence, should be given retroactive effect in the absence of statutory language showing a contrary intent, we feel that we should allow the assessment of costs against the Highway Department. Interdiction of Mayeux, 130 So.2d 708 (La.App. 3rd Cir. 1961). See Quinney v. U. S. F. & G. Co., 345 So.2d 262 (La.App. 3rd Cir. 1977), application denied, 346 So.2d 713 (La.1977). Reversing this aspect of the judgment would be going contrary to the intention of the legislature, which made the decision to now allow a trial judge to assess costs against a state agency when it is a defendant and cast in judgment.

For the above reasons, the judgment of the District Court is amended so as to reduce the amount awarded to Rodney Hopkins from the sum of $11,174.00 to the sum of $1,308.50; the amount awarded to Melvin Raiford from the sum of $14,773.00 to the sum of $1,725.60; and the amount awarded to Doris Stewart Faust, Frances Faust Hopkins, Odis C. Faust, Jr., and James Shelby Faust, from the sum of $7,646.00 to the sum of $1,224.47. In all other respects, the judgment is affirmed.

All costs on appeal are assessed one-third each to Melvin Raiford and Rodney Hopkins, and one-third to the widow and heirs of Odis C. Faust, Sr.

AFFIRMED, AS AMENDED.

      . Originally, Odis C. Faust, Sr., was a plaintiff. However, he died while suit was pending, and his widow and heirs were substituted as parties.

      . Article 667 provides:
      “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

      . Stephens gave the highest estimates of damage. Randy LaCaze, the other appraiser offered by plaintiffs, gave damage estimates of $7,730.66 for the Hopkins tract; $4,000.00 for the Raiford tract; and $4,602.00 for the Faust tract. The State had three expert appraisers, all of whom testified that there was no decrease in the market value of the properties. However, one of the appraisers, H. Lauren Wil-let, stated that if the properties were damaged, he would estimate quantum in terms of loss of rental value for nonusable land. His valuation yielded damages of $162.00 for the Hopkins tract, $1,050.00 for the Raiford tract, and $162.00 for the Faust tract.


author: LOTTINGER, Judge,

text:
    Tinker WILLIAMS v. Leonard LONDON.
    No. 12202.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 19, 1978.
    Writ Granted Dec. 1, 1978.
   On Supervisory Writs to the Twentieth Judicial District Court, Parish of East Feli-ciana; William F. Kline, Jr., Judge Presiding.

LOTTINGER, Judge,

dissenting and concurring.

I dissent from the refusal to grant a rehearing on the merits only.

However, as to relator’s argument that a rehearing should be granted before a five judge panel of this court because of a dissent in the original granting of writs, we are of the opinion that Art. 5, § 8(B), La. Const. (1974) has no application. After a thorough and careful reading of the Constitutional Convention debate on the reargument of a case before a five judge panel, we are convinced that the delegates intended this rule to apply only to the appellate jurisdiction of the courts of appeal, and not to their supervisory jurisdiction as in this case.


author: PRICE, Judge.

text:
    Claude R. RANGER et ux., Plaintiffs-Appellants, v. JEAN FORE MORTGAGE COMPANY, Defendant-Appellee.
    No. 13644.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Evans, Feist & Auer by Frank M. Auer, Shreveport, for defendant-appellee Jean Fore Mortgage Co.

      Wilkinson, Carmody & Peatross by Charles'B. Peatross, Shreveport, for defendants-appellees Highland Square, Inc. and Shelter Services, Inc.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is an appeal from a judgment sustaining the peremptory exception of no cause of action filed by defendants to plaintiffs’ petition for alleged breach of contract. Plaintiffs, husband and wife, filed suit for damages alleging defendant, Jean Fore Mortgage Company, had contracted with them to “earnestly secure financing” of a townhouse at an interest rate of 7%%. Plaintiffs further allege that defendant’s failure to timely submit their loan application to the Veterans Administration by December 31, 1975, breached their contract and resulted in their suffering damages in the imposition of appreciably higher interest financing of 8%%. Plaintiffs filed a supplemental petition joining Highland Square, Inc., and Shelter Services, Inc., who they allege contracted to sell them the property. The trial court sustained the exception of no cause of action filed by each defendant and rendered judgment dismissing plaintiffs’ demands.

Although the court did not give written reasons for judgment, it apparently accepted the contention of Jean Fore that plaintiffs’ petition failed to allege facts which show specifically how Jean Fore did not fulfill its obligation to “earnestly secure” financing at the agreed 7%% rate. The exceptions of the other defendants were apparently sustained on the basis that there were no allegations by plaintiff that connected them with the alleged failure of Jean Fore to properly secure financing.

We reverse the judgment dismissing plaintiffs’ demands against Jean Fore and affirm the judgment dismissing their demand against defendants, Highland Square, Inc., and Shelter Services, Inc., for the reasons assigned in this opinion.

Defendant, Jean Fore, contends that this court should distinguish between an obligation to “earnestly secure” and an obligation to provide financing at a given interest rate. This defendant bases the exception of no cause of action on the proposition that plaintiffs do not allege facts which, if proven, would show that defendant did not fulfill its obligation to “earnestly secure” the agreed financing, and therefore, have not stated a cause of action. Defendant’s argument is a highly technical interpretation of plaintiffs’ petition and inconsistent with the Louisiana Code of Civil Procedure because under the code, liberal rules of pleadings prevail and each pleading should be so construed as to do substantial justice. When it can reasonably do so, the court should maintain a petition so as to afford a litigant an opportunity to present his evidence. La.C.C.P. art. 865, Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976). In considering a petition against which an exception of no cause of action has been raised, this court has held that every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Walker v. Interstate Fire & Casualty Insurance Company, 334 So.2d 714 (La.App.2d Cir. 1976).

Because plaintiffs’ petition is vague does not mean that it is fatally deficient. A vague or ambiguous petition lends itself to a dilatory exception of vagueness under La.C.C.P. Art. 926, not to an exception of no cause of action. Haskins, supra; Brunson v. Mutual Life Ins. Co of New York, 189 La. 743, 180 So. 506 (1938). Plaintiff specifically alleged that Jean Fore agreed to undertake to procure financing for plaintiffs and breachecpt'he duty owed to them by not timely filing their loan application to take advantage of the lower interest rate. Therefore plaintiffs’ petition does state a cause of action.

The trial court was correct in sustaining the exception of no cause of action filed by defendants, Highland Square, Inc., and Shelter Services, Inc.. Plaintiffs’ allegations in their original petition base their claim against the original defendant, Jean Fore, solely on the assertion that defendant breached an obligation owed them by not timely filing their application. The supplemental and amended petition joining Highland Square and Shelter Services as defendants merely alleged plaintiffs contracted to purchase the property from these defendants. None of these pleadings allege facts which connect them with the processing of plaintiffs’ loan application, and therefore, no cause of action has been alleged against these defendants.

For the foregoing reasons, the judgment dismissing plaintiffs’ demands against defendants, Highland Square, Inc., and Shelter Services, Inc., is affirmed. The judgment dismissing plaintiffs’ demands against defendant, Jean Fore Mortgage Company, is reversed, and the case is remanded for further proceedings. Costs of this appeal are taxed equally to plaintiffs and defendant, Jean Fore Mortgage Company. Assessment of other costs are to await final disposition.


author: MARVIN, Judge.

text:
    CREDIT SERVICE CORPORATION, Plaintiff-Appellant, v. John E. BAGLEY d/b/a Bagley Drilling Company, Defendant-Appellee.
    No. 13645.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.

      Jerry Kircus, Shreveport, for plain tiff-appellant.
    J. Edwin Bailey, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

As assignee of a judgment creditor, plaintiff appeals from a judgment which rejected plaintiff’s demands to reinscribe a money judgment and which released the effect of the money judgment against defendant’s homestead property because the money judgment was recorded within four months of the filing of defendant’s petition in bankruptcy. § 67a of the Bankruptcy Act [11 U.S.C.A. § 107(a)(1)].

This court has considered the effect of a discharge in bankruptcy on a judgment which was recorded more than four months before the petition in bankruptcy was filed.

“Real property liens existing for a proper length of time before the filing of a petition in bankruptcy are not affected by a discharge in such proceeding. Thus, a valid judgment lien is not affected by the discharge of the judgment debtor in bankruptcy, though his personal liability may be released thereby.” (Emphasis supplied.) Henry v. Roque, 18 So.2d 917, 919 (La.App.2d Cir. 1944). See also Socony Mobil Oil Company, Inc. v. Burdette, 309 So.2d 655 (La.1975)

Here the judgment was obtained and recorded within four months of the filing of defendant’s petition in bankruptcy.

The Bankruptcy Act, in § 67a, 11 U.S. C.A. § 107(a)(1), expressly provides:

“Every lien against the property of a person obtained by . judgment, .- . within four months before the filing of a petition [in bankruptcy] . shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this title: . . . ”

Section 1(19) of the Act provides:

“A person shall be deemed insolvent within the provisions of this title whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts;”

Federal authority, which preempts and controls, now is clear that a judgment recorded within four months of the filing of a petition in bankruptcy may be voidable by either the Trustee or by the bankrupt even though property is set aside or disclaimed by the Trustee to the discharged bankrupt, provided the conditions of the Act are met. Fischer v. Pauline Oil & Gas Co., 309 U.S. 294, 60 S.Ct. 535, 84 L.Ed. 764 (1940), 4 Collier on Bankruptcy § 67.15 at 163 et seq. (14th Ed. 1971), Waddell v. Fleming, 510 F.2d 4 (10th Cir. 1975). See also L.R.S. 9:5166. Exempt property such as the homestead which is set aside to the discharged bankrupt is considered as a part of the aggregate of the bankrupt’s property in determining whether the bankrupt is solvent within the meaning of the Act. Waddell, supra, § 1(19) Bankruptcy Act, supra.

Defendant expressly pleaded below that the judgment in question “. having been recorded within four months of the date of [defendant’s] filing said petition in bankruptcy, was null and void and [should be] cancelled as to any lien against [defendant’s] real estate.” We deem this to be sufficient fair notice pleading to alert the plaintiff that defendant was claiming benefit of § 67a of the Act. Paxton v. Ballard, 289 So.2d 85 (La.1974), Terral v. Bearden, 338 So.2d 141, 144 (La.App. 2d Cir. 1976).

The defendant bankrupt obviously proceeded below on the theory that the plaintiff judgment creditor had no security interest in the judgment because the amount of the homestead exemption and the amount that was owed on a first mortgage on the homestead exceeded the value of the property. L.R.S. 9:5166, Jaubert Bros. v. Landry, 15 So.2d 158 (La.App. 1st Cir. 1943), Kayda v. Johnson, 262 So.2d 171 (La.App. 1st Cir. 1972). The defendant’s homestead exemption then was $4,000 and it was shown that he owed more than $14,000 on a first mortgage on the property that the Bankruptcy Trustee testified was worth only $18,000. In 1969 the defendant still owed $9,000 on the first mortgage indebtedness.

Jaubert concerned a judgment recorded many years before the judgment debtor went bankrupt and the effect of the discharge on that judgment as against the bankrupt’s homestead, purchased for $1,500 but still encumbered by a vendor’s lien on which $1,300 was owed when he went bankrupt. The judgment ordering reinscription “in rem” was affirmed, but the Jaubert court said if the judgment debtor can show that at the time he took bankruptcy, the homestead was worth no more than the balance due on the purchase price, the judgment debtor could have the homestead declared free from the judgment. 15 So.2d at 161. See Kayda v. Johnson, 262 So.2d 171 (La.App. 1st Cir. 1972).

Kayda concerned a judgment recorded within four months of the filing of the petition in bankruptcy. The court there discussed and limited the pronouncement in Jaubert to situations where the creditor’s inability to enforce the judgment was because of the existence of outstanding conventionally secured obligations against the property. 262 So.2d at 174. Kayda refused to cancel the judicial lien because the creditor’s .inability to enforce was not solely because of conventional obligations, but as well, because of the homestead exemption. Both Jaubert and Kayda speak in terms of the bankrupt having an equitable interest in property, the essence of which is solvency of the bankrupt when the lien is obtained. Neither case, however, discussed the express provisions of the Bankruptcy Act, which we deem controlling. It is not the creditor’s inability to enforce his lien which makes the lien voidable by the bankrupt, but the express provisions of the Bankruptcy Act and of state law.

The lien is not automatically null and void against property set aside to the bankrupt, but is voidable (Fischer, supra) only if these conditions are met:

(1) The lien is obtained within the four month period of the filing of the petition in bankruptcy;
(2) The bankrupt is insolvent when the lien was obtained;
(3) The bankrupt is discharged in bankruptcy; and
(4) The property has not been sold to a bona fide purchaser. See Fischer, supra, 309 U.S. at 302, 60 S.Ct. 535.

In Fischer, the Supreme Court said:

“It is settled, however, that not only may the trustee avoid the lien . . . but that the bankrupt may assert its invalidity as respects property set apart to him as exempt in the bankruptcy proceeding . But the lien is not avoided for the benefit of the bankrupt save as to his exempt property or nullified as respects other lienors or third parties.” 309 U.S. at 302, 60 S.Ct. at 539.

Kayda held that the bankrupt had the “vehicle” to annul the lien in L.R.S. 9:5166. 262 So.2d at 174.

In Louisiana, the obligation of a debtor toward the establishment of the family home is a higher obligation than one toward his general creditors. The law favors and has designed an approach for the protection of the homestead. The homestead claimant is himself a creditor, however fictitiously, with other creditors and may outrank general creditors to the proceeds from the sale of the homestead. See Ouachita Nat. Bank in Monroe v. Rowan, 345 So.2d 1014 (La.App. 2d Cir. 1977). Considering this state policy and federal policy under the Bankruptcy Act, with respect to the debtor’s homestead, we hold that a lien on the property, created by the recordation of a judgment at a time when the judgment debtor is insolvent within four months of the filing of a petition in bankruptcy, may be cancelled by a state court upon the petition and proper showing by the judgment debtor who is personally discharged of the debt in the bankruptcy proceedings. § 67a, Bankruptcy Act, R.S. 9:5166, Fischer, Waddell, Collier, supra.

Insolvency of the bankrupt at the time the judicial lien is obtained within the four month period is a condition which must be established before § 67a will be applied. Waddell, supra. This question was not passed on below and we feel it in the interest of justice to remand to allow the taking of evidence and an adjudication on this issue. CCP 2164.

Accordingly, judgment below is set aside and the case is remanded for further proceedings. Assessment of costs shall await final disposition.

      . The bankruptcy proceedings were conducted and completed in 1959. Trial on the question of reinscription occurred in 1969. The district judge before whom the matter was tried died after the case was submitted and the matter was eventually decided by a successor district judge some eight years later and appealed here.

      . Kayda held: “Thus where the inability of the judgment creditor to enforce his judgment against the bankrupt is due to the homestead exemption rather than a lack of equity on the part of the bankrupt because of conventional obligations against the property, the law has been, and remains that the inscription of the judgment acquired prior to adjudication in bankruptcy is not cancelled. Were the rule otherwise, the homestead status of the property could change and the judgment creditor would have no recourse.” 262 So.2d at 174.


author: BOLIN, Judge.

text:
    Wiley G. TOWNE, Plaintiff-Appellant, v. Ezra B. TOWNE, Jr., et al., Defendants-Appellees.
    No. 13652.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.

      Johnson & Johnson by J. Eugene Osburn, Monroe, for plaintiff-appellant.
    Lancaster, Baxter & Seale, Tallulah, Watts & Cassidy, Franklinton by E. H. Lancaster, Jr., Tallulah, for defendants-appel-lees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

The predominant issue in this case is whether prescription bars plaintiff’s suit for damages and the annulment of two judgments of possession where his claims are based on the provisions of an olographic will which was allegedly concealed from him and not presented for probate within five years of the opening of the succession of the deceased author. The trial court sustained the plea of prescription and we affirm.

Ezra B. Towne, Sr., and his sister, Miss Louise Towne, owned a small plantation in indivisión. In 1946 Miss Towne made an olographic will bequeathing all her property to two of her nephews, Wiley G. Towne, the plaintiff, and William E. Towne, one of the defendants. Although both were named co-executors, William was given possession of the will with the instructions to do with it as he saw fit upon Miss Towne’s death.

When Miss Towne died in 1954, William decided not to probate the will so that her interest in the plantation would be inherited by their father and would eventually pass to his father’s five children in equal shares. Her succession was opened as an intestate proceeding and Ezra B. Towne, Sr., was recognized as her sole heir.

Ezra B. Towne, Sr., died testate in 1972 and his widow and all five of his children, including plaintiff, petitioned for possession of his estate. The widow, Mrs. Cary Nell Towne, died testate in 1974 and all five children joined in the petition for possession which recognized them to be equal owners of the plantation.

Plaintiff filed suit against his brothers and sisters in 1977, seeking (1) to have them ordered to produce the will of Miss Louise Towne; (2) to annul the judgments of possession in the successions of Ezra B. Towne, Sr., and Mrs. Cary Nell Towne; and (3) $71,000 in damages. Defendants filed exceptions of prescription, prematurity, no cause of action and res judicata. The trial judge sustained all the exceptions and plaintiff appeals.

In ruling on the prescription issue, the trial judge did not specify which prescriptive period he found applicable. However, it is apparent from his oral reasons, which appear in the transcript of testimony, that his decision was based on a finding that plaintiff had knowledge of the existence of the will of Miss Louise Towne at some time prior to her death in 1954, and consequently any of the arguably applicable periods would have accrued by the time suit was filed in 1977.

We accept that factual determination and agree plaintiff’s claims have prescribed. His claim for annulment of the judgments of possession in the successions of Ezra B. Towne, Sr. and Mrs. Cary Nell Towne is based on alleged fraud on the part of defendants in obtaining these judgments, i. e., their concealment of Miss Louise Towne’s will from him. Article 2004 of the Code of Civil Procedure provides that an action to annul a judgment on the grounds of fraud or ill practices must be brought within one year of the discovery of the fraud or ill practices. Since plaintiff knew of the existence of Miss Towne’s will prior to her death, he would naturally have been aware of its concealment when her succession was opened as an intestate proceeding in 1954. Therefore, since he was aware of the alleged fraud before these later judgments of possession were rendered, he could have no more than one year to file his suit for annulment. The judgment of possession in the succession of Ezra B. Towne, Sr., was rendered in 1972. The judgment of possession in the succession of Mrs. Cary Nell Towne was rendered in 1975. This suit was not filed until September 12, 1977.

We also note that Article 2893 of the Code of Civil Procedure and La.R.S. 9:5643 provide a five year prescription for the probate of testaments. Although plaintiff did not seek to have Miss Towne’s will probated, it appears that any additional rights he might have must emanate from that will. The will cannot now be probated since more than five years have elapsed since the opening of Miss Towne’s succession in 1954. Therefore, plaintiff has no basis for his claim of additional ownership in the plantation.

Plaintiff’s claim for money damages had also prescribed under the ten year prescription of Civil Code article 3544. Minyard v. Curtis, 251 La. 624, 205 So.2d 422; Whitten v. Monkhouse, 29 So.2d 800 (La.App. 2d Cir. 1947). This claim is based on an assertion that by concealing the will from him the defendants have wrongfully deprived plaintiff of his inheritance and unjustly enriched themselves. Again, since plaintiff had knowledge of the existence of the will prior to Miss Towne’s death, he would naturally have been put on notice of its concealment when her succession was opened. Consequently, the ten years began to run at that point.

Having decided adversely to plaintiff on the issue of prescription, we find it unnecessary to consider the correctness of the rulings on the remaining exceptions.

The judgment is affirmed at appellant’s cost.

      . Art. 2893.
      No testament shall be admitted to probate unless a petition therefor has been filed in a court of competent jurisdiction within five years of the judicial opening of the succession of the deceased.

      . § 5643
      A proceeding to probate the purported testament of a deceased person is prescribed by five years, reckoning from the date of the judicial opening of the succession of the deceased.

      .Art. 3544.
      In general, all personal actions, except those before enumerated, are prescribed by ten years.


author: HALL, Judge.

text:
    Lehard MOORE, Plaintiff-Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Defendant-Appellee.
    No. 13653.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.

      Bethard & Davis by James G. Bethard, Coushatta, for plaintiff-appellant.
    Brittain & Williams by Joe Payne Williams, Natchitoches, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Lehard Moore, plaintiff, appeals from a judgment rejecting his demand for the value of a television set and sewing machine and for the return of $810, all of which were allegedly taken from his house trailer without his consent by employees of the Goodyear Tire and Rubber Company, defendant. Moore also appeals the rejection of his demand for attorney’s fees under the Louisiana Unfair Trade Practices Law. Answering, Goodyear complains of the rejection of its claim for the unpaid purchase price of the goods taken. We find that the seizure was wrongful and the attorney’s fees deserved, and reverse the trial court judgment on these two issues. We affirm the trial court’s judgment rejecting Moore’s claim for $810 and rejecting Goodyear’s claim for $807 owed on open account.

Moore apparently purchased the television set and sewing machine from Goodyear on an installment plan. After Moore had fallen behind in his payments, Goodyear made several unsuccessful attempts to contact Moore concerning the problem. The trial court adopted Goodyear’s version of the repossession. Goodyear sent two employees to Moore’s home to settle the account. When they found he was not at home they went next door to the home of Clora Moore, his sister-in-law. They testified she told them that Moore was out of the country but the house was open and they could enter and take the merchandise. One of .the employees entered the house trailer and found the sewing machine just inside the back door and the television set in the living room. They took the merchandise and returned to the store.

The trial judge, in his reasons for judgment stated that “[W]hile the law does not favor the actions taken by Mr. LaCaze [defendant’s employee] in entering the home of another person without permission, nevertheless the permission of Clora Moore wipes out any wrongdoing.” Goodyear argues that this statement shows the trial court found as a fact Clora Moore had authority of Lehard Moore to turn the goods over to Goodyear. There is no evidence anywhere in the record to indicate Moore had ever given Clora Moore authority to allow the repossession of the goods.

It is well settled that when goods are repossessed without judicial process the consent of the owner must be shown by the seizing creditor in order to avoid legal liability. Grandeson v. International Harvester Credit Corp., 223 La. 504, 66 So.2d 317 (1953); Samaniego v. Horseless Carriage, Inc., 350 So.2d 193 (La.App. 2d Cir. 1977), writ refused 352 So.2d 240 (1977); Lee v. Lewis, 339 So.2d 513 (La.App. 2d Cir. 1976). In Grandeson, the taking of community property with only the wife’s permission was held to be a wrongful seizure. Certainly, a sister-in-law without authority cannot give consent to the repossession of Moore’s goods. Thus, we find the trial court to be in error and hold that this repossession was a wrongful seizure.

Moore claimed he had $810 hidden in the sewing machine which was hidden in a bedroom closet under a pile of clothes. Moore introduced testimony as to the source of the eight $100 bills. Moore’s brother testified that Moore had eight $100 bills about two months before the repossession. Goodyear’s employees testified they found the sewing machine just inside the back door which was open. They also testified that a search of the sewing machine after being notified by Moore of the hidden money revealed nothing. There was also evidence that several people had access to Moore’s house trailer. The trial judge frankly did not “believe that there was eight hundred dollars in that sowing machine, nor two rolls of dimes.” This finding turns upon the credibility of the witnesses and the trial judge’s finding is amply supported by the record. We, therefore, affirm this portion of the judgment.

Goodyear contends the trial court’s rejection of its reconventional demand for recovery on open account was erroneous. There is no evidence in the record of what goods were bought, what payments were made, or what amount was owed on the account. The only reference to the open account is a casual admission by Moore, made in another context on cross-examination, that he still owed $807 on the sewing machine and television set when they were picked up. This figure bears no relationship to the original purchase price of the sewing machine and television set and the monthly payments Moore made on them. We agree with the trial judge’s finding that the reconventional demand was not proved and affirm his rejection of it.

The measure of actual damage for the wrongful repossession of a movable is the value of the property taken. However, the creditor is entitled to an offset, but no deficiency judgment for the unpaid purchase price. Samaniego v. Horseless Carriage, Inc., supra; Lee v. Lewis, supra. Goodyear failed to prove the amount Moore owed on the purchase price of the television set and sewing machine. Thus, they are not entitled to an offset. Their employee valued the television set at $125 and the sewing machine at $100. We award Moore $225 in special damages, being the actual value of the property wrongfully seized. Although there is some evidence that the plaintiff had to relocate his house trailer because of this incident, there is virtually no evidence in the record of his being embarrassed or humiliated by the illegal taking of the property. We, therefore, award the plaintiff $250 for his general damages.

Moore also claims attorney’s fees under LSA-R.S. 51:1405(A) and 1409(A), the Louisiana Unfair Trade Practices and Consumer Protection Law.

LSA-R.S. 51:1405(A) provides:

“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

LSA-R.S. 51:1409(A) provides:

“Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act or practice was knowingly used, after being put on notice by the director or attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney’s fees and costs. Upon a finding by the court that an action under this section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney’s fees and costs.”

Moore argues that the actions of Goodyear in this case constituted an unfair act or practice in the conduct of trade or commerce, declared unlawful by § 1405(A) and that plaintiff under § 1409(A) is entitled to bring an action individually and to recover actual damages and reasonable attorney’s fees and costs. Goodyear contends that the type of activity it conducted in this case is not an unfair trade act or practice as contemplated by the act and that attorney’s fees are allowable only where treble damages are awarded for unfair practices knowingly used after notice by the director or attorney general, which was not the situation here.

In discussing this relatively new statute adopted in 1972 the court in Guste v. Demars, 330 So.2d 123 (La.App. 1st Cir. 1976) stated:

“The substantive prohibition of the Unfair Trade Practices and Consumer Protection Law is broad and does not specify particular violations. La.R.S. 51:1405(A) declares that:
‘Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.’
The language of this section tracks closely that of the Federal statute, 15 U.S.C. Section 45(a). Because of the variety of possible unfair and deceptive practices, the Federal statute was intentionally broadly written, leaving the determination of individual violations to the Commission and the courts. Our legislature has expressed a similar intention in patterning our law so closely on the Federal statute. Therefore, we may and should consider interpretations of the Federal courts and of the Commission relative to such similar statutes to adjudge the scope and application of our own statute. State, through Dept. of Highways v. Baddock, 170 So.2d 5 (La.App. 1st Cir. 1964).”

While the substantive prohibition of the Louisiana statute and federal act is almost identical, the regulatory and administrative schemes are quite different. The federal act establishes a comprehensive regulatory scheme to be administered by the Federal Trade Commission. The federal act does not provide for a private action. Holloway v. Bristol-Myers Corporation, 158 U.S.App.D.C. 207, 485 F.2d 986 (1973); Carlson v. Coca Cola Company, 483 F.2d 279 (9th Cir. 1973). The Louisiana statute while creating the “Governor’s Consumer Protection Agency” and investing the attorney general with certain enforcement powers, establishes a private right of action for any person who suffers any ascertainable loss of money or movable property as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by the statute.

Because of the absence of private actions under the federal act and the concern of the federal scheme for matters of broad public interest, there does not appear to be reported federal decisions involving actions similar to those involved in this case. In determining whether a practice is unfair under the federal act, a rule, based on Federal Trade Commission criteria, has been established that a practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. F.T.C. v. Sperry and Hutchinson Company, 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972); Spiegel, Inc. v. F. T. C., 540 F.2d 287 (7th Cir. 1976). In Spiegel, the court found certain collection practices of a mail order house in filing lawsuits against mail order credit customers under the Illinois long-arm statute in Chicago in a court distant from the consumer’s residence to be an unfair practice.

The collection actions of Goodyear in entering Moore’s home and taking possession of his property which had been sold on terms of credit, without Moore’s knowledge and consent, amounts to an unfair trade act or practice under the Louisiana statute, applying common meanings to the words of the statute. Applying the federal criteria, the defendant’s actions offended established public policy, constituted actions which have long been recognized in Louisiana as unlawful and as entitling the injured party to damages, were oppressive and unscrupulous, and caused substantial and actual injury to a consumer. Moore has a right of action under the Louisiana Trade Practices and Consumer Protection Act to recover his actual damages.

LSA-R.S. 51:1409(A) requires that in the event damages are awarded under that section, whether actual damages which do not require prior notice, or treble damages after notice by the director or attorney general, that the court shall award reasonable attorney’s fees and costs. Moore is entitled under the statute to reasonable attorney’s fees, which we fix at the sum of $500.

For the reasons assigned, the judgment of the district court is reversed and set aside and there is judgment in favor of plaintiff, Lehard Moore, against defendant, Goodyear Tire and Rubber Company, in the sum of $475 with legal interest thereon from date of judicial demand until paid and for $500 as attorney’s fees. All costs of these proceedings, including the cost of appeal, are assessed to defendant.

Reversed and rendered.


text:
    ENTERPRISE PRODUCTS COMPANY, Plaintiff-Appellant, v. Arvis E. WHITMAN, Sheriff and Ex-Officio Tax Collector of the Parish of Bienville, Defendant-Appellee.
    Nos. 13654, 13655.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1978.
    Writ Refused Jan. 26, 1979.

      Liskow & Lewis by John M. Wilson and George J. Domas, New Orleans, for plaintiff-appellant.
    Whitten & Blake by Leon H. Whitten, Jonesboro, McCollister, McCleary, Fazio, Mixon & Holliday by D. Irvin Couvillion and Neil H. Mixon, Jr., Baton Rouge, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Enterprise Products Company, appeals from a judgment rejecting its demand for the return of certain ad valorem taxes paid under protest to the sheriff and tax collector of Bienville Parish, and ordering it to pay attorney’s fees. We affirm the judgment rejecting the demand for recovery of the taxes paid and reverse the judgment ordering plaintiff to pay attorney’s fees.

As the stipulated facts establish, Enterprise is engaged in the business of transporting and selling in both interstate and intrastate commerce, liquid petroleum gas products (“LPG”) purchased from producers in Louisiana and in other states. The purchased LPG is transported across the state of Louisiana by means of pipelines, trucks and tank ears. The LPG is stored in underground facilities located in Bienville Parish prior to shipment and delivery to customers both in and out of the state of Louisiana. The LPG purchased from both in-state and out-of-state producers is commingled in the facility and deliveries from the commingled supply are made to purchasers in Louisiana and outside the state.

In 1975 and 1976 both the fixed assets at the storage facility and the LPG in storage were assessed for taxation by the assessor of Bienville Parish. For both years Enterprise paid the total tax due but notified the tax collector that the portion of the tax attributable to the LPG in storage was being paid under protest pursuant to LSA-R.S. 47:2110. Pursuant to that statute suits to recover the tax paid under protest, together with 2 percent interest from the date of payment, were timely filed. Subsequently, taxes for 1977 were assessed and paid on the same basis and by joint motion of the parties, recovery of that year’s taxes is included within the scope of this litigation.

In these suits, Enterprise contended that it was erroneously and illegally taxed by the defendant because the tax was prohibited by the commerce clause of the United States Constitution and because the LPG was exempted from taxation by La.Const. art. 7, § 21(D)(3). The defendant-tax collector filed a reconventional demand for attorney’s fees pursuant to LSA-R.S. 47:1998 totaling 10 percent of the amount of taxes paid under protest.

After trial on stipulated facts the trial court held that (1) the commerce clause of the Constitution of the United States does not prohibit ad valorem taxation of the LPG stored in Bienville Parish regardless of the point of origin or its final destination; (2) that La.Const. art. 7, § 21(D)(3) does not exempt the LPG from ad valorem taxation; and (3) that the attorney’s fee of 10 percent of the amount of taxes paid under protest was due. From a judgment rendered accordingly, Enterprise appealed.

On appeal Enterprise has abandoned its contention that the commerce clause of the United States Constitution prohibits state property taxation of the LPG in storage within the state of Louisiana. The issues on appeal are: (1) whether Enterprise’s liquor petroleum products in storage in Bien-ville Parish are exempted from ad valorem taxation under La.Const. art. 7, § 21(D)(3) and its companion statute LSA-R.S. 47:1951.3; and (2) whether a taxpayer who pays ad valorem taxes under protest and then unsuccessfully seeks recovery of the tax paid under LSA-R.S. 47:2110 is liable for attorney’s fees of 10 percent of the amount of taxes paid under LSA-R.S. 47:1998.

Further expanding on the stipulated facts, in 1975 Enterprise purchased a total of 47,730,941 gallons of LPG, with 29,345,-998 gallons purchased from states other than Louisiana and 18,384,943 gallons purchased in the state of Louisiana. Enterprise sold a total of 38,836,612 gallons of LPG with 4,173,801 gallons sold in the state of Louisiana and 34,662,811 gallons sold outside of Louisiana. The amount of LPG stored at the Bienville Parish facilities at any one time during 1975 varied from a low of approximately 12,000,000 gallons to a high of approximately 25,500,000. The average volume stored was 16,085,846 gallons. There is an average turnover of storage volume in the year of 2.4 and the average months of storage, on a first-in, first-out basis, was five months. The amount of taxes assessed and paid under protest for the year was $31,111.20.

During the year 1976 Enterprise purchased a total of 29,043,399 gallons of LPG, 13,976,824 gallons having been purchased in states other than Louisiana and 15,066,575 gallons having been purchased within the state of Louisiana. Enterprise sold a total of 26,093,933 gallons in 1966 with 9,872,672 gallons being sold within the state and 16,-221,261 outside the state. The amount of gas stored at the facilities at any one time during 1976 varied from a low of zero to a high of approximately 22,440,000 gallons. The average storage volume in 1976 was 11,031,000 gallons and there was a turnover of average storage volume of 2.37 and an average month of storage of 5.06 months. The tax paid under protest amounted to $60,654.08.

The record does not contain detailed figures for 1977 but the amount paid under protest for that year was $46,538.90.

Tax Exemption

La.Const. art. 7, § 21(D)(3) on which plaintiff relies, exempts from taxation:

“Goods, commodities, and personal property in public or private storage while in transit through this state which are moving in interstate commerce through or over the territory of the state or which are in public or private storage within Louisiana, having been shipped from outside Louisiana for storage in transit to a final destination outside Louisiana, whether such destination was specified when transportation began or afterward.”

The companion statute, LSA-R.S. 47:1951.3, upon which plaintiff relies, provides as follows:

“For the purpose of ad valorem taxation, raw materials, goods, commodities and personal property stored in transit in the state while moving in interstate commerce shall not be treated as incorporated into the mass of the property in this state during the time that such raw materials, goods, commodities or personal property, received from outside the state, are held by any owner in public or private storage to be shipped to a point outside the state of Louisiana, whether specified when transportation begins or afterward.
“All such property whether entitled to exemption or not shall be reported to the proper taxing authority on the forms required by law.”

The provision in the 1974 Constitution, with minor style and grammatical changes, is a continuation of La.Const. art. 10, § 4, subsection 19(c) (1921), which was adopted as a constitutional amendment in 1960, and which exempted:

“All goods, commodities and personal property in public or private storage while in transit through this State which is (i) moving in interstate commerce through or over the territory of the State of Louisiana, or (ii) which is in public or private storage within the State of Louisiana having been shipped thereto from outside of the State of Louisiana for storage in transit to a final destination outside of the State of Louisiana, whether such destination was specified when transportation begins or afterward. All such property whether entitled to exemption or not shall be reported to the proper taxing authority on the forms required by law.”

Enterprise argues that even if the commerce clause of the United States Constitution does not prohibit ad valorem taxation of certain commodities, a state may elect to exempt such commodities from such taxation. It contends the Louisiana constitutional exemptions are separate and distinct from the protection afforded by the commerce clause of the United States Constitution. It is Enterprise’s position that although Louisiana is not prohibited by the federal constitution from taxing the property involved in this case, the state has elected through the constitutional provision to exempt from ad valorem taxation commodities such as liquid petroleum gas products stored temporarily in this state when such products are shipped from points both within and outside the state, in measurable quantities, to the state for temporary storage in a commingled state and subsequently shipped, in measurable quantities, to points both within and outside of the state of Louisiana. Appellants attempt to analyze the specific language of the constitutional provision to show that it applies to the facts of this case, and, particularly, to the gas shipped from outside Louisiana for storage in transit to a final destination outside Louisiana, whether such destination was specified when transportation began or afterward.

The tax collector contends and the trial court held that the exemption adopted by constitutional amendment in 1960 was essentially a codification of the federal law and jurisprudence governing the power of local governments to tax commodities in storage while in transit in interstate commerce. The general rule at that time, as expressed in Gulf Refining Co. of Louisiana v. Phillips, 11 F.2d 967 (5th Cir. 1926), cert. denied 273 U.S. 697, 47 S.Ct. 93, 71 L.Ed. 845 (1926), and other cases, was that goods would be considered in transit in interstate commerce and not subject to local taxation where the storage or delay was due to transportation, safety, or natural cause reasons but would not be considered in transit and would be subject to local taxation where the storage or interruption was due to an intentional detention for the beneficial and business purposes and convenience of the owner.

We agree with the tax collector’s contentions and with the decision of the trial court. The Louisiana constitutional exemption exempts goods and commodities stored in transit in interstate commerce which the state would have been prohibited from taxing under federal law as it existed at that time. Since the LPG stored in this state for business purposes of the , owner is not considered as being in transit in interstate commerce, there was no federal prohibition against its taxation and likewise no exemption under the Louisiana constitutional provision.

This view is entirely consistent with the decision of the Louisiana Supreme Court in American Mannex Corporation v. Cronvich, 251 La. 1014, 207 So.2d 778 (1968). That case involved an interpretation of La.Const. art. 10, § 4(19(c)) (1921) which provided an exemption from ad valorem taxation relating to imports and exports and was adopted by constitutional amendment in 1960 at the same time as the constitutional exemption involved in this case. There the court held:

“The provisions of our constitutional amendment clearly reveal, we think, an effort on the part of the Louisiana lawmakers to codify generally the jurisprudence of the Supreme Court of the United States in the form of conditions under which the constitutional immunity of imports from local taxation will be recognized and enforced. . . . ”

The court found that the exemption from state taxation provided by the Louisiana constitutional provision was simply a legislative statement of doctrine long recognized by federal law.

Appellant analyzes the language of the Louisiana constitutional provision, argues that it establishes at least two separate exemptions, and attempts to bring the facts of this case within the language of one or more of the exemptions. The constitutional provision, both as originally contained in the 1921 Constitution and as carried forward in the 1974 Constitution, is no grammatical masterpiece. However, even if it be viewed as creating two exemptions under different circumstances, the requirement of storage “in transit” appears in both exemptions. It is clear that the exemption granted by the constitutional provision relates only to goods or commodities “in transit”. While “in storage” denotes some delay, detention, or holding, the requirement of “in transit” remains. Where, as here, the LPG is held in storage in a commingled state for an average period of five months for the business and economic purposes of the owner, subject to subsequent sale and delivery to customers both within and outside of the state, it cannot be said that the goods are in storage while “in transit”, regardless of origin.

It is a well-established principle of statutory construction that claims of exemption from a tax are strictly construed against the person claiming the exemption. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958).

We hold that the liquid petroleum gas in storage under the stipulated facts of this case does not fall within the constitutional exemption from taxation and is subject to ad valorem taxation.

Attorney’s Fees

These suits were brought by plaintiff under LSA-R.S. 47:2110 attacking the legality of the tax on the stored LPG and seeking recovery of taxes paid under protest. LSA-R.S. 47:2110 provides that any person 'resisting the payment of any amount of tax found due shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for recovery of the tax. The suit must be filed within 30 days and if the taxpayer prevails the tax is refunded with interest at the rate of 2 percent per annum. The right to sue for recovery of a tax paid under protest affords a legal remedy and right of action for full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax or the method of enforcement thereof. The right of action provided in this section is in addition to any rights elsewhere provided including LSA-R.S. 47:1998. No mention is made of attorney’s fees.

LSA-R.S. 47:1998 establishes a procedure for judicial review of assessments and gives any taxpayer in the state, who has followed certain procedures, the right to institute suit for the purpose of contesting the correctness or legality of any assessment made. Section 1998 provides that the attorney who represents the tax collector in all proceedings for the reduction of assessments and collection of taxes shall receive a compensation of 10 percent of the amount collected, calculating same upon the aggregate amount of taxes and penalties so collected as the result of the proceedings and shall be collected as costs at the same time the taxes and other penalties are collected.

The two statutes, LSA-R.S. 47:1998 and 47:2110, provide two separate and distinct actions and remedies. See Churchill Farms, Inc. v. Louisiana Tax Commission, 249 So.2d 594 (La.App. 4th Cir. 1971), writ refused 259 La. 321, 249 So.2d 923 (1971), a suit brought under 47:1998, and Churchill Farms, Inc. v. Louisiana Tax Commission, 338 So.2d 963 (La.App. 4th Cir. 1976), a suit brought under 47:2110. LSA-R.S. 47:1998 provides for attorney’s fees and LSA-R.S. 47:2110 does not.

Colonial Pipeline Co. v. Traigle, 353 So.2d 728 (La.App. 1st Cir. 1977), writ refused 354 So.2d 569 (La.1978), involved a similar question of attorney’s fees in a case involving franchise taxes. The taxpayer brought suit under LSA-R.S. 47:1576 which provides a method for payment under protest of a disputed tax and further provides a remedy at law for recovery of such amounts paid when application of the disputed tax to that particular taxpayer is invalid. That section, adopted into law at the same time as the section on ad valorem taxes with which we are dealing in this case, also contains no provision for attorney’s fees. The tax collector claimed ten percent attorney’s fees under LSA-R.S. 47:1512. The court held that the tax collector was not entitled to recover attorney’s fees in a suit brought to recover taxes paid under protest. See also Parish of Calcasieu, Calcasieu Par. Pol. J. v. Traigle, 296 So.2d 418 (La.App. 1st Cir. 1974) and L. A. Frey & Sons v. Lafayette Parish School Board, 262 So.2d 132 (La.App. 3d Cir. 1972).

We believe the same result is called for in this case. The source provision of LSA-R.S. 47:2110 was adopted pursuant to constitutional mandate that the Legislature shall provide for a complete and adequate remedy for the prompt recovery by every taxpayer of any illegal tax paid by him. La.Const. art. 10, § 18 (1921), carried forward as La.Const. art. 7, § 3. This source provision was adopted subsequent to the source provision of LSA-R.S. 47:1998. It provides a separate remedy than that contemplated by Section 1998. Section 1998 contemplates collection of taxes and penalties not previously paid and Section 2110 contemplates litigation over taxes previously paid and on which no penalties are due.

We hold that the tax collector is not entitled to collect attorney’s fees of 10 percent under LSA-R.S. 47:1998 in a suit brought by a taxpayer for recovery of taxes paid under protest under LSA-R.S. 47:2110.

For the reasons assigned, the judgment of the district court rejecting plaintiff’s demands for recovery of taxes paid under protest is affirmed and the judgment of the district court awarding the tax collector attorney’s fees in the amount of 10 percent of the amount of taxes paid is reversed and set aside.

Affirmed in part, reversed in part, and rendered.