text:
    Valliet DUHON, Plaintiff-Appellant, v. Richard G. SALOOM and Michael E. Boustany, Defendants-Appellees.
    No. 5240.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.

      Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, David E. Walle and Robert N. Ryan of Bien-venu & Culver, New Orleans, Kaliste J. Saloom, Jr., Lafayette, for defendants-ap-pellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This malpractice suit was previously before this court on an appeal from a prescription-based summary judgment which was reversed. (239 So.2d 180). On remand, defendants filed (subsequent to answer) exceptions of prescription. The case was set for trial before a jury, but over plaintiff’s objections, the lower court held an in limine hearing and sustained the exception. Plaintiff has appealed, complaining that the prescription issue should have been submitted to the jury, that it could not be disposed of except at trial and that the trial judge was in error in sustaining the exception.

Plaintiff relies on the language of the second paragraph of Code of Civil Procedure Article 929 which, in part, provides:

“If the peremptory exception has been pleaded in the answer, or subsequently, but at or prior to the trial of the case, it shall be tried and disposed of on the trial.”

In Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972) an exception of no right of action (which is completely equivalent to one of prescription for the procedural question now at hand) had been filed apparently after answer to the original petition but before any answer to an amended and supplemental petition. Plaintiff urged that it was entitled to have the trial jury determine the question of whether there existed a right of action. The court stated:

“The next question before us is whether our civil procedure allocates to the trial judge in jury cases the determination, in limine, of the right of the parties to bring the action where factual evidence must be evaluated in order to arrive at the answer. Our Code of Civil Procedure Article 929 states that the de-clinatory, dilatory, and peremptory exceptions, when pleaded before answer, ‘shall be tried and decided in advance of the trial of the case.’ When .the peremptory exception is pleaded in the answer but prior to trial, it may be disposed of on the trial or in limine. See Redactors’ Comment (b) under C.C.P. Art. 929.
We could, under the strict languge of the Code and the particular facts of this case, apply the mandate of our Code of Civil Procedure that this peremptory exception of no right of action had to be tried ‘in advance of the trial of the case’, since, as we have previously noted, no answer has been filed to the last amended and supplemental petition, the petition which raised the issue of plaintiff’s good faith in her marriage to Babi-neaux. However, even if we were to consider the exception as filed in the answer or after answer, we would find no abuse of discretion in the trial court’s disposing of the exception in limine.
Even in federal practice, where judge functions are far more limited in pretrial proceedings in jury cases than in our state courts, certain issues are disposed of in limine by the trial judge without jury consideration where a question of law is presented as to whether a plaintiff has a right to claim a particular remedy. Both the motion to dismiss for failure to state a claim, Federal Civil Procedure Rule 12(b)(6), and the motion for judgment on the pleadings, Rule 12(c), which convert into motions for summary judgment under Rule 56 where matters outside the pleadings are considered, are disposed of by the trial judge alone.”

Both before and after the Babi-neaux decision, this court ruled similarly. See Hebert v. Armstead, 227 So.2d 636 (La.App., 3d Cir., 1969); Duhon v. Lafayette General Hospital, 286 So.2d 166 (La.App., 3d Cir., 1973). We think the issue is now settled. The trial judge did not err in disposing of the exception in limine.

Plaintiff sustained a simple fracture of his left leg on November 28, 1965. Dr. Richard G. Saloom, one of the defendants, performed an unsuccessful closed reduction of the fracture. Later Dr. Saloom and Dr. Michael E. Boustany, also made defendant, performed a surgical reduction. Subsequently, osteomyelitis (infection of the bone) set in at the fracture site, and plaintiff was treated by these doctors until April, 1966, when he decided to have further treatments at the V. A. Hospital in Alexandria because of his limited means. He was treated at the V. A. Hospital off and on, and finally, in January of 1968 the leg was amputated. Suit was filed on December 31, 1968.

Plaintiff contends the treatment continued until within one year of the suit and prescription started within that year. It is clear from the evidence that all treatment to plaintiff after April, 1966, was at the V. A. Hospital, that he never consulted or was treated by defendants at all after that time and had no professional contact whatsoever with them. The rule that prescription does not commence until the treatment ceases is not applicable here.

Next plaintiff contends that the ten-year prescription is applicable to his claim against Dr. Saloom because he guaranteed a result. There were general discussions between doctor and patient regarding the length of recovery; the doctors’ expressions amounted to no more than a hopeful estimate of the rehabilitation time. No guarantee whatsoever was given, and the ten year prescription is not applicable.

On the prior appeal from the summary judgment, plaintiff had maintained that the prescription did not start until the amputation because he did not know of the tor-tious nature of the injury and because the injury was not manifested until the amputation. This court held that there was a factual issue as to when plaintiff knew of the tortious nature of the injury but practically ruled against him on the other issue. Now, plaintiff seems to have abandoned the claim as to when knowledge of the tor-tious nature of the injury began and relies mainly on the argument that the injury was not sustained or at least made sufficiently manifest until the amputation.

In Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963) the Supreme Court ruled that the one-year prescription of Civil Code Article 3536 applied to a malpractice suit. Civil Code Article 3537 provides that the one-year prescription begins “. . . . [when] the injurious words, disturbance or damage was sustained.”

In Louisiana, the focus is mainly on the time the damage is sustained rather than the time of the commission of the tor-tious act. Ordinarily, these two events are concurrent, but problems are presented when the consequences of the tortious injury are delayed in manifestation, or are insignificantly manifested initially and progress to a more serious condition or when the consequences are multiple and are evident at different times. Also, in malpractice suits, knowledge of the doctor’s negligence is often not known to the patient until much later than the commission of the tortious act or malpractice. Generally, it may be said that prescription does not commence to run until plaintiff has actual or constructive knowledge of the tortious act, the damage and the causal relation between the tortious act and the damage. See Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La. App., 1st Cir. 1967); Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); Steel v. Aetna Life and Casualty Company, 304 So.2d 861 (La.App., 3rd Cir. 1975), Cert. denied at La., 315 So.2d 144; Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269 (1958); Luke v. Caddo Transfer and Warehouse Company, 11 La.App. 657, 123 So. 444; Hunter v. Sisters of Charity, 236 So.2d 565 (La.App., 1st Cir. 1970); Luke v. Caddo Transfer and Warehouse Company, 11 La.App. 657, 124 So. 625 (1929); Christian v. Danielle Battery Manufacturing Company, Inc., 279 So.2d 214 (La.App., 2nd Cir. 1973); Duhon v. Lafayette General Hospital, 286 So.2d 166 (La.App., 3rd Cir. 1973).

The doctrine of constructive notice is applicable in prescription cases. See the Lucas and Cartwright cases above. In the Cartwright case the Supreme Court stated:

“.whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.”

Plaintiff has the burden of proving his lack of knowledge as to the injury and also circumstances which establish the damage was not sustained within a year of the suit. Lucas v. Commercial Insurance Co., supra; Steel v. Aetna Life and Casualty Co., supra; Hunter v. Sisters of Charity, supra; Vanguard Underwriters Insurance Co. v. Ray’s Plumbing Co., Inc., 312 So.2d 111 (La.App., 3rd Cir. 1975).

In the Lucas case, supra, the court stated:

“.even though the full extent of the damages or loss may not be immediately ascertainable, nevertheless, if the aggrieved party is aware of the claim resulting from the tortious conduct, the entire claim, including that for damages not then determinable, prescribes in one year from the date of the commission of the wrong.”

In the Steel case, supra, a child became paralyzed and incontinent after an operation. The argument was made that the prescription was not triggered until the permanent nature of the paralysis and incontinence was determined. The court ruled that the rule that prescription does not run against one who is ignorant of the existence of facts which would entitle him to bring suit, applies only when such ignorance is not willful and does not result from negligence of the plaintiff and the doctrine has been limited to cases where the physician has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the injured party from ascertaining knowledge of the existence of the injury.

On the question of when he became aware of the tortious action of defendants, plaintiff testified as follows:

“Q. Did you think at that time that Dr. Saloom or Dr. Boustany had done something wrong?
A. Well, at that time, before my leg was amputated, I didn’t know. After my leg was amputated, that’s when I decided something had been done wrong.
Q. And do you remember when you made that decision?
A. That was in December of ’68.
Q. Do you recall the circumstance of that, about when you decided something had gone wrong ?
A. Because you just don’t- — what I had in mind, you just don’t lose a leg with a simple fracture.”

Osteomyelitis is a chronic and persistent bone infection. It can recur for years and amputation of the affected limb is often the only realistic solution. Plaintiff’s hospital record shows that various attempts, surgical and otherwise, were made to eliminate the bone infection, but it kept recurring. He was admitted April 14, 1966, discharged October 7, 1966, admitted November 28, 1966 and discharged May 8, 1967. He had outpatient checkups on May 18, 29 and June 6, 1967, was readmitted June 11, 1967 and discharged June 12, 1967. He had outpatient checkups on July 11, August 10, October 10 and November 14, 1967. His next admittance was January 19, 1968, shortly before the amputation.

His hospital record shows the following entry was made on October 6, 1966:

“The patient desires that at least one more effort be made to save the leg from amputation.”

On November 16, 1967, the following entry was made in his hospital record to wit:

“Do not think healing will occur with this drainage present. Future surgery will need BK Amp. Pt. alerted to fact but desires it to stay as is.”

This last entry was made at the time of a consultation with two doctors, both of whom actually testified to the consultation and the above entry in his record.

We do not understand how plaintiff did not conclude that there was negligent treatment before the amputation. It was directly caused by the osteomyelitis. He had lived with the osteomyelitis for approximately eighteen months and knew, as a substantial probability, that the amputation would be necessary. The osteomyelitis was nearer the negligent action in time and cause than the amputation itself.

Surely for over a year, and probably for more than two years, prior to the suit plaintiff knew or ought to have known that the amputation was likely. Under the cited jurisprudence, knowledge of the os-teomyelitis itself would probably have been sufficient to start prescription. However, here we have not only actual knowledge of the osteomyelitis but a strong awareness of the probability of the amputation.

Plaintiff argues that he sues only for the amputation and that different consequences of the tortious action should prescribe separately. A sort of bifurcation was recognized in the case of Butler et al. v. Fidelity Casualty Co., 207 So.2d 805 (La.App., 1st Cir. — 1968). In that case, plaintiff’s claim for damages suffered prior to a premature birth were held to have prescribed but not those for the premature birth. There was no certain knowledge of the later manifested consequences (the premature birth) as was the case here. Also, the later consequence was directly caused by the injury; it did not result from the earlier manifested consequences as in this case.

Plaintiff cites the case of Guderian v. Sterling Sugar & Railway Co. at 151 La. 59, 91 So. 546 (1922) involving the loss of an eye. There was a minor blow to the eye which required slight medical attention. Later plaintiff saw spots and a doctor told him the condition was caused by kidney or digestive problems. On April 23, his eyesight started failing and the same physician sent him to an eye specialist from whom he learned his true condition. Suit was filed April 22 of the following year. There was no knowledge of a causal relationship between the tortious action and the damage until April 23, which was within a year prior to suit. That is entirely different from the case at hand.

Plaintiff cites Perrin v. Rodriguez, 153 So. 555 (La.App. — 1934). A dentist extracted teeth and left some of the tooth roots in the jaw. In complete innocence, he assured plaintiff that the continued pain was due to misfit of the dentures. Plaintiff did not learn of the remaining roots until he consulted an oral surgeon within a year of suit. Prior to a year before suit, plaintiff had no knowledge of the tortious act or that it caused the damage.

Herein, a manifestation of substantial damage occurred long prior to a year before suit; long before that year, plaintiff had every reason to know or suspect the mistreatment.

The lower court’s judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Bob HENRY v. Jim HODGES et al.
    No. 10399.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Gerard E. Kiefer, Baton Rouge, for appellant.
    Joseph A. Perrault, Jr., and Aubrey L. Moore, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

This appeal by plaintiff, Bob Henry (Appellant), is from judgment ordering dissolution of a contract whereby Appellant transferred corporate shares of Paramedical Career Academy, Inc. (Paramed) to defendants, Jim Hodges, Dick Jauregui and John Brewer (Appellees), the dissolution and return of shares to Appellant being conditioned upon Appellant making certain restitution to Appellees. Defendants have neither appealed nor answered plaintiff’s appeal. We affirm.

From inception, all litigants have treated the contract as a sale of corporate shares. In seeking relief, Appellant urges and relies upon those codal articles which prescribe the relief available to a vendor in the event of a purchaser’s breach of a sales contract. For reasons hereinafter noted, we find that the contract in question was not a sale.

Plaintiff prays only that the “sale” of the stock be rescinded. Defendants’ answer is a general denial. In reconvention, defendants assert their obligation to invest in Paramed and aver investments aggregating $15,420.00, which they claim alternatively in the event of judgment for plaintiff.

It is undisputed that on June 21, 1973, Appellant owned 90% of the shares of Paramed, a corporation operating a health occupational school to train medical receptionists, nurses assistants, doctors assistants and allied positions in the health field. The other 10% of Paramed’s stock was owned by Hodges. At this time the school, which was operated in a building leased from Appellant and Appellant’s mother, was in distress. The institution was threatened with closure because of its inability to provide either a surety or cash bond of $10,000.00 to obtain a state license, which license was essential to Federal accreditation, which was also vital to the continued operation of the institution. In addition, Paramed was delinquent in payment of current operating expenses. It also appears that during the prior period of operation, Appellant had personally obligated himself for considerable sums which were advanced to Paramed.

On June 21, 1973, by verbal agreement, Appellant transferred 5% of Paramed’s shares to Hodges, 33% to Jauregui and 32% to Brewer, retaining 20% of the corporation’s shares for himself. It is agreed that no cash purchase price was involved, and that Appellant received no monetary remuneration whatsoever. It is agreed that the terms of the contract were that Appellees would undertake active management of the institution under the supervision of Jauregui, who successfully managed a similar institution in San Antonio, Texas. In return for the stock transfer, Appellees agreed to undertake to secure the bond required to obtain state licensing essential to Federal accreditation and continuance of the school. Appellees further agreed to invest in the corporation sufficient funds to insure its continuance, and also agreed to personally assume liability for certain outstanding corporate obligations. The only dispute between the parties lies in this latter area, namely, the amount and character of obligations for which Appellees assumed liability.

At the time of stock transfer, it is conceded that Paramed owed approximately $6,200.00 in outstanding current bills for such items as advertising and general office and operating expenses. It is also conceded that payment of these obligations was assumed by Appellees. Additionally, Paramed owed a large balance on a Small Business Loan .in the original sum of $24,500.00 obtained through Capital Bank, Baton Rouge, Louisiana, for which obligation Appellant was personally bound. Par-amed also owed a balance of $1,500.00 on a note held by City National Bank and $1,000.00 on a note held by Family Finance Company, both of said obligations having been guaranteed by Appellant. Appellees maintain they did not agree to assume personal liability for the SBA loan or the loans by City National Bank and Family Finance. Appellant contends these latter obligations were assumed by Appellees.

Appellant concedes the contract was negotiated principally through Hodges who represented Brewer and Jauregui. Appellant testified that Appellees understood they were to assume liability for the delinquent current expense liability of the corporation as well as to relieve Appellant from personal liability on the balances due Capital Bank, City National Bank and Family Finance. In essence Appellant testified he would not have transferred his stock under any other arrangement.

Hodges acknowledged he did most of the negotiation with Appellant, but denies that either he, Hodges, or either of the other two defendants agreed to assume Appellant’s personal liability on the amounts owed Capital Bank, City National Bank or Family Finance. He explained that the principal consideration for the transfer was transferees’ promise to solve the licensing problem which threatened closure, provision of expert supervision, the infusion of sufficient operating capital and payment of current obligations which amounted to about $6,200.00, according to a list furnished by Appellant. Hodges denied any intent to assume Appellant’s personal obligation on the notes held by Capital Bank, City National Bank and Family Finance.

Brewer’s testimony is essentially that he agreed to obtain the required bond which he was able to do because of his experience, knowledge and connections, which function he performed. He also stated he was to furnish supervision and provide operating capital, but that he did not assume payment of the amounts due Capital Bank, City National Bank and Family Finance. He was aware of the amounts due the latter two concerns, but stated he had no knowledge of the SBA loan from Capital Bank until he heard the loan mentioned at trial.

Jauregui’s testimony is to the effect that he agreed to pay the $6,200.00 outstanding current expenses owed by Paramed, but did not agree to assume liability for any personal debts owed by Appellant. He further stated that the matter of plaintiff’s personal obligation on account of funds advanced to Paramed was never discussed.

Allie Pogue, Vice President, Capital Bank, testified that at the time of the transfer, the matter of the SBA loan was discussed with Appellant and Hodges. From the discussion, Pogue formed the impression that the transferees of the stock agreed to assume liability for the balance due on this loan on which Appellant was liable. He acknowledged that some confusion arose at this time concerning whether Paramed, as a corporation, was liable on the SBA note which had been drawn in the name of Bob Henry d/b/a Paramedical Career Academy, which fact was then first brought to his attention. He confirmed that Appellant was personally liable on this note.

Mr. Frank Foil, attorney for Appellees, was apparently the first to discover that the SBA loan was perhaps not an obligation of Paramed based on the technicality that said concern was a corporation, and that the obligation had not been incurred either in the corporate name or with proper corporate authority. He so informed Appellees, including Brewer. In this latter regard, it is significant that Mr. Foil flatly contradicts Brewer’s testimony wherein Brewer stated he had no knowledge of this loan until the time of trial.

It is conceded by all concerned that the proceeds of the SBA loan, the City National Bank Loan and the Family Finance loan were all used by Appellant in the operation and/or purchase of equipment for the school. Neither the amounts of the loans nor balance due are disputed. Appel-lees acknowledge their failure to pay the three disputed accounts. They seek to justify said failure on the ground that these obligations were not assumed.

Following the stock transfer, Appellees made numerous investments in Paramed either by direct loans to or by deposits to the corporation’s bank account of Appellees’ personal funds or the proceeds of loans which Appellees endorsed. In some instances Appellees were repaid with corporation funds; corporation funds were also used to defray some of the loans whose proceeds were used for corporate purposes. The record establishes that at the time this litigation commenced there remained the following outstanding balances on loans acquired by Appellees, the proceeds of which loans were invested in Paramed, and which loans were personally guaranteed by Ap-pellees either individually or collectively: $4,640.00 due on a loan made July 20, 1973 by Investors Finance Services; $1,833.31 due on loan from Capital Bank in August, 1973, and $4,987.50 due on a January, 1974 loan obtained from Louisiana National Bank. These transactions totalled $11,-460.81. The record also shows that Brewer and Hodges invested personal funds in the amounts of $2,500.00 and $2,250.00, respectively, none of which has been repaid.

The trial court concluded that Appellees agreed to assume the personal liability of Appellant on obligations in dispute, and also that Appellees breached their obligation in this respect. The trial court also found, however, that Appellees had rendered all other services which they had undertaken to perform, including obtaining a bond, state license and national accreditation for the school, operation of the school and investment of funds therein. In short, the trial court found Appellees had partially performed the obligations incumbent upon them. The lower court reasoned that said partial performance entitled Appellees to equitable consideration, and upon this premise ordered rescission of the transfer and return of the stock to Appellant conditioned upon Appellant’s refunding Brewer the $2,500.00 personally advanced by Brewer and remaining unpaid, and the sum of $2,250.00 advanced by Hodges and remaining unpaid, and further conditioned upon Appellant’s assumption of the $11,406.81 remaining due on the hereinabove mentioned loans.

Appellant has appealed only that portion of the judgment ordering restitution of the sum due Brewer and Hodges personally, a total of $4,750.00, and ordering plaintiff to assume liability for the $11,460.81 loan balances for which Appellees are personally bound.

Appellant contends the transaction was a sale and the breach found by the trial court entitled him to rescission and restoration to his former position. Invoking LSA-C.C. art. 2561; Shapiro v. Kimbrough, La.App., 20 So.2d 24, and Cahow v. Hudges, La.App., 169 So. 801, affirmed, La.App., 173 So. 471, Appellant contends he is entitled to judgment, as seller, restoring him to possession of the subject of the sale free and clear of any charges placed thereon by Appellees during Appellees’ possession as purchaser.

We find that the transaction in question was not a sale. LSA-C.C. art. 2439 defines the contract of sale as follows:

“The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”

In this instance, the stock transfer was not given for a stated price payable in current money. Appellant received no money whatsoever for the transfer. The consideration given by the transferees was the performance of certain acts which included, inter alia, payment of debts owed by Paramed to third parties and the assumption of certain obligations incurred by Appellant to provide funds for Paramed’s operation.

Since this is not a contract of sale, Appellant is not entitled to the right of rescission and other relief provided by LSA-C. C. art. 2561, in those instances wherein a purchaser fails to pay the agreed price of a sale contract.

The contract involved herein may be generally classified as a commutative contract pursuant to LSA-C.C. art. 1768, which provides:

“Commutative contracts are those in which what is done, given or promised by one party, is considered as equivalent to, or a consideration for what is done, given, or promised by the other.”

Our general rules governing contracts are found in LSA-R.C.C. Title IV, Of Conventional Obligations, Articles 1761-2289. Included therein are the following pertinent provisions:

“Art. 1777. Contracts in general, under whatever denomination they may come, and whether they may or may not be included in any of the above divisions, are regulated by certain rules, which are the subject of this title.”
“Art. 1778. Certain contracts are regulated by particular rules which are established in the parts of the Code which treat of those contracts.”

The general rules governing dissolution of contracts which are not subject to regulation by specific codal provisions are contained in LSA-C.C. 2045 through 2047, which state:

“Art. 2045. The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.
It does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.”
“Art. 2046. A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.”
“Art. 2047. In all cases the dissolution of a contract may be demanded by suit or by exception; and when the resolu-tory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.”

The foregoing codal provisions do not grant the absolute and unconditional right to dissolution upon breach of contract. On the contrary, our jurisprudence establishes that when a contract is breached, the courts are authorized, within their sound discretion, either to grant dissolution or to allow defendant additional time to perform the breached obligation. Thompson v. Bullock, La.App., 236 So.2d 892, and authorities therein cited.

In this instance, the trial court deemed the breach sufficient to warrant dissolution. We concur in this determination because it appears that Appellees failed to pay approximately $27,000.00 in obligations which Appellees assumed, and which assumption was a prime motive for Appellant’s agreement to transfer the stock.

Appellant complains only that the trial court erred in requiring reimbursement to Appellees for the personal funds invested by Appellees in Paramed, and for personal liability assumed by Appellees for loans made to Paramed while Appellees were owners of the stock conveyed. Appellant urges entitlement to restoration of the stock without the necessity of restitution.

In this instance, Appellant’s remedy of dissolution is based on the implied reso-lutory condition contained in all commutative contracts pursuant to LSA-C.C. arts. 2045-2047, inclusive. According to Article 2045, above, when this implied condition is invoked for breach of a contractual obligation, all obligations of the contracting parties are revoked; the parties are placed in the same condition as though the mutual obligations had not existed, and each party is required to return that which he received under the agreement. Such a result is ordinarily easily accomplished where the contract is a sale, an exchange, or a contract to give. (See LSA-C.C. art. 1905.) However, restoration of things received becomes more complicated and difficult where the contract calls for performance, especially where the acts to be done cannot be undone, or where partial performance has been made and the valuation of such services or acts is difficult to assess.

In return for the transfer of Appellant’s stock, Appellees agreed to perform several acts: (1) bond the school; (2) obtain a license for the institution and accreditation by Federal authorities; (3) provide expert management for the operation and supervision of the school; (4) assume approximately $6,200.00 current bills owed by Par-amed; (5) invest sufficient funds in the corporation to assure its continued operation, and (6) assume approximately $27,000.00 personal obligations of Appellant for Paramed’s debts. Appellants performed enumerated obligations 1 through 5, above. The record establishes beyond doubt that Appellees’ performance saved the school from closure, improved its public image and placed the institution in far better status than the institution enjoyed at the time of the transfer. It is obvious that such services, save that of investment of funds, cannot be undone or the monetary value thereof precisely determined. It is equally obvious that Appellant’s stock has enhanced in value to an indeterminate degree as a result of Appellees’ partial performance. Under the circumstances, the restitution ordered by the trial court is the only practical way Appellant can restore that which he received, which restoration is required pursuant to LSA-C.C. art. 2045. The obligation to restore that which was received is supported by both doctrinal writings and jurisprudence. Scott v. Apgar, 238 La. 29, 113 So.2d 457; Thompson v. Kilcrease, 14 La.Ann. 340; Thompson v. Bullock, above; Vanzant v. Morgan, La. App., 181 So. 660; Monroe, The Implied Resolutory Condition for Non-Performance of a Contract, 12 Tulane L.Rev. 529.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


author: MORIAL, Judge. REDMANN, Judge SCHOTT, Judge

text:
    Ralph JAUBERT v. DEPARTMENT OF PUBLIC SAFETY of the State of Louisiana.
    No. 6991.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1976.

      Ovide M. Tregle, Jr., Robert B. Chopin, Metairie, for plaintiff-appellee.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Baton Rouge, for defendant-appellant.
    Before SAMUEL, REDMANN, BOU-TALL, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

The Department of Public Safety (Department) appeals a decision of the district court restraining, enjoining and prohibiting it from interfering with plaintiff’s driving privileges. We reverse and remand.

When arrested by law enforcement officers on December 22, 1973, Ralph Jaubert refused an Implied Consent Sobriety Test. LSA-R.S. 32:661 et seq. Upon receipt of the sworn report (LSA-R.S. 32:667) of the law enforcement officers, the Department of Public Safety notified Jaubert of the suspension of his driver’s license for a period of six months. Jaubert requested an administrative hearing. LSA-R.S. 32:668. At this hearing, Jaubert, his son who was with him at the time of his arrest, and his wife were the only persons to testify. Submitted at the hearing were an un-sworn arrest report and the arresting officers’ LSA-R.S. 32:667 conclusionary re-part which stated in part: “That he [they] had reasonable grounds to believe that Ralph D. Jaubert had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages. * * * ” After the hearing, the Department sustained the suspension. Ralph Jaubert filed suit in the Civil District Court for the Parish of Orleans (LSA-R.S. 32:668, LSA-R.S. 32:414, subd. E) seeking to enjoin and prohibit the Department from suspending his license.

When the trial began, the court heard plaintiff’s testimony on the merits which consisted primarily of evidence on the issue of reasonable grounds. LSA-R.S. 32:667-668. Thereafter, the parties stipulated that reasonable grounds was the only issue to be determined. After hearing a portion of the Department’s testimony on that issue, objection was made which was sustained. The court curtailed testimony of the arresting officers and stated that it would be excluded on the basis that they had not appeared at the administrative hearing. The district judge concluded that the judicial hearing (LSA-R.S. 32:668, 32:414, subd. E) was limited to a review of the administrative proceedings within the Department and was not a trial de novo.

LSA-R.S. 32:668, subd. B provides:

“If the suspension or determination that there shall be a denial of issuance is sustained after such a hearing, the person whose license or permit to drive or nonresident operating privilege has been suspended or to whom a license or permit is denied shall have the right to file a petition in the appropriate court for a review of the final order of suspension or denial by the State Department of Public Safety in the same manner and under the same conditions as is provided in R.S. 32:414 in the cases of suspension, revocation and cancellation of licenses.”

Judicial review is provided for in LSA-R.S. 32:414, subd. E the pertinent part of which states:

“ * * * Any person denied license or whose license has been suspended, can-celled or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides, and such court is vested with jurisdiction to set the matter for hearing in open court upon ten days written notice to the department, and thereupon to determine whether the person is entitled to'd license or is subject to suspension, cancellation or revocation of license under the provisions of this Chapter, and appeal from the district court may be taken to any court of competent appellate jurisdiction, (emphasis supplied).

The petition filed by the plaintiff pursuant to LSA-R.S. 32:414, subd. E brought this case before the district court under its exclusive original jurisdiction. See Bowen v. Doyal, 259 La. 839, 253 So. 2d 200 (1971). Although a prior administrative determination of suspension had been made by the Department, LSA-R.S. 32:414, subd. E provides for the court “ * * * to determine whether the person * * * is subject to suspension, * * * Neither LSA-R.S. 32:414 nor LSA-R.S. 32:668 places any restriction or limitation on the scope of the original judicial hearing therein granted. The court is not restricted to a review of the findings of the Department. This conclusion is not inconsistent with the Administrative Procedure Act, LSA-R.S. 49:951 et seq., which provides:

“§ 964. Judicial review of adjudication

A. A person who is aggrieved by a final decision or order in an adjudicatiqn proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing without limiting, however, utilisation of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.” (emphasis supplied)

The hearing is a civil action amenable to the rules of procedure and proof for such actions. Meyer v. State, Dept. of Public Safety Lic. Con., etc., 312 So.2d 289 (La.1975). However, we conclude that the application for a court hearing to challenge the Department’s suspension of a drivers license does not shift to the plaintiff the burden of showing the absence of reasonable grounds. The burden of affirmatively proving reasonable grounds is initially on the Department (LSA-R.S. 32:668) and remains with the Department throughout the court hearing. In the absence of a showing of reasonable grounds, the Department had no legal basis to proceed further (to place the plaintiff under arrest, etc., LSA-R.S. 32:667) and to invoke the serious action of suspension of plaintiff’s license to drive. See: Smith v. Department of Public Safety, 254 So.2d 515, 518 (La.App. 4 Cir. 1971).

The court hearing that we conclude is required by LSA-R.S. 32:414, subd. E does not allow for the Department to carry its burden of proving reasonable grounds solely on the basis of a sworn report of a law enforcement officer which contains the statutory conclusionary statement that “ * * * he had reasonable grounds %

For the foregoing reasons the judgment of the district court is reversed and the case is remanded for a trial not inconsistent with the views herein expressed.

Reversed and remanded.

REDMANN, J., dissents with written reasons.

SCHOTT, J., dissents with written reasons.

REDMANN, Judge

(dissenting).

The determination whether the arresting officers had reasonable grounds cannot fairly be left to the arresting officers themselves. They cannot be their own judges on that question. Rather, the administrative hearing examiner must determine that question, on the basis of the arresting officers’ statements contained in their report or in their testimony before him.

The statutory judicial review does afford a trial de novo to the driver, who may present more evidence in court than presented at the administrative hearing. The driver does get two chances. But the state does not. Judicial review cannot afford the state the license to suspend at will upon the arresting officer’s conclusory say-so (rather than upon a determination by the hearing examiner) and* then await the judicial review to show — if such be the case —not merely that the arresting officer thought he had cause, but rather that the facts the officer testifies to show he did have cause.

I agree that the arresting officers’ recital here was partly conclusory: “erratic driving” contains no evidentiary facts. “Running over curbing at U-turn” is quite specific, but because it stands alone it is insufficient to constitute reasonable grounds to stop the driver and oblige him to take an alcohol test or forfeit his license.

SCHOTT, Judge

(dissenting).

LSA-R.S. 32:667 and 668 detail a procedure for the Department of Public Safety to follow in order to suspend a person’s driver’s license. When plaintiff filed his petition for judicial review of the Department’s order of suspension the first inquiry should have been whether the Department complied with the provisions of the statute so as to bring about an effective suspension.

The record contains the sworn report required by § 667 but it is almost devoid of a record of the hearing which the Department was obliged to hold under § 668. The record consists only of some handwritten notes reflecting that plaintiff and his wife testified and that plaintiff’s attorney made a handwriting demonstration and a statement in his client’s behalf. There is no report as such by any hearing officer as to his findings and the record hardly demonstrates that § 668 was complied with so that:

“ . . . the scope of such a hearing for the purposes of this part shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of alcoholic beverages, . . . ”

It seems elementary that for the Department to determine whether the policemen “had reasonable grounds to believe” anything the testimony of these officers would be required. Only they could tell the Department what was in their minds, i. e., what they believed when they detained plaintiff.

Thus, plaintiff is in the same position now as he was in after the Department implemented § 667 because he applied for an administrative hearing but has not yet been properly afforded one. Until he receives that which the Department is required to provide the suspension of his license does not become effective. Harrison v. Department of Public Safety, 298 So.2d 312 (La.App. 4th Cir. 1974) writ refused, La., 300 So.2d 840. Accordingly, I would affirm the judgment of the trial court to the extent that a preliminary writ of injunction was issued.

My colleagues in the majority have remanded this case to the District Court for a hearing to allow the Department to prove that it had reasonable grounds to detain plaintiff. From this disposition of the case I also dissent. In my opinion, the judgment of the trial court' should be affirmed with the reservation that the Department of Public Safety may properly implement R.S. 32:668 should it elect to do so.

I disagree with the majority that judicial review under § 668B. contemplates a trial de novo and submit that their conclusion was reached by a misinterpretation of R.S. 32:668 when read in connection with R.S. 32:414. While § 668 does provide that the Department is to “afford [the subject] an opportunity for a hearing in the same manner and under the same conditions as is provided in R.S. 32:414 for notification and hearings in the case of suspension of licenses” the statute specifically provides what kind of a hearing is to be conducted in a § 668 proceeding. By reference to R.S. 32:414 there is nothing which suggests the formality of the hearing required in § 668. § 414 provides only for an investigation by the Department, preparation of findings by the investigator, and a review of the findings by the Department. Nowhere does § 414 require an administrative hearing as does § 668, so that when the person’s license has been denied or suspended as a result of a § 414 proceeding the first opportunity he has for a hearing is in the District Court upon his application for a judicial review. Because § 668 mandates an administrative hearing simple logic indicates that the legislature intended for the scope of judicial review to be something less than a complete rerun of the hearing required of the Department in § 668.

The hearing required by § 668 is “an adjudication proceeding” under R.S. 49:964 and judicial review of such is governed by that statute. I do not interpret that statute to authorize a trial de novo in court on the same issues which were heard at the adjudication proceeding conducted by the Department of Public Safety. The trial de novo spoken of in subsection A. must be interpreted in the light of the provisions of subsections E., F. and G. Subsection F. prescribes that judicial review shall be confined to the record. There is a proviso under subsection E. that the court may take evidence in addition to that which is in the record provided that the subject shows that the additional evidence is material and that there were good reasons for his failure to present it at the administrative hearing. Subsection G. authorizes the court not only to affirm or reverse a finding but also to remand the case for further proceedings. It may reverse where the administrative determination was made upon unlawful procedure or was arbitrary or capricious. All of these suggest that the de novo judicial hearing mentioned in A. is to be on the issue of whether the administrative hearing was properly conducted and not that the entire administrative hearing is to be rehashed and replayed in court.

Under subsection G. the trial court in the instant case was authorized to remand the case to the Department of Public Safety for further proceedings. The word “may” in the statute vests the trial court with discretion in this connection. In any event, there is no necessity for a remand in the instant case because the Department of Public Safety is free to implement R.S. 32:668 if it chooses to do so. Until and unless it embarks on this course the injunction will remain in effect and plaintiff’s driving privileges are retained.

I respectfully dissent.


author: HALL, Judge.

text:
    Luie W. CAPLE, Jr., Plaintiff-Appellee, v. Kirwen BROWN, Sheriff, Defendant-Appellant.
    No. 12827.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 29, 1976.

      John S. Stephens, Coushatta, for defendant-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   HALL, Judge.

Plaintiff, Luie W. Caple, Jr., an elector and taxpayer residing in Red River Parish, filed suit against defendant, Kirwen Brown, Sheriff of Red River Parish, seeking to compel the sheriff to allow an examination by plaintiff of the defendant’s financial records relating to the sheriff’s salary fund from July 19, 1972 to the present time, pursuant to LSA-R.S. 44:1 et seq., (the Public Records Law).

The matter was heard in a summary manner by the district court. The evidence adduced consisted of a stipulation and the testimony of Sheriff Brown. It was stipulated that plaintiff is a citizen of Red River Parish, a taxpayer, and an elector. The sheriff testified plaintiff made a request at the sheriff’s office to examine the records in question, which request was rejected by the sheriff. The sheriff testified he knew plaintiff, that he offered a copy of the legislative auditor’s report to plaintiff, that he subsequently published the auditor’s reports covering his office for the period 1964 through 1974, noting in the publication that “since one of the candidates seeking my office has seen fit to bring suit to inspect my department’s payroll records (records that could have been inspected without bringing suit), I have decided to publish these records for all to see.” He further testified that although the records are available and he is in a position to do so, he would not voluntarily allow plaintiff to examine the payroll records.

The district court, for oral reasons expressed at the conclusion of the hearing, rejected defendant’s contention that the Public Records Law is unconstitutionally vague and indefinite and overly broad — the only defense urged in the trial court. Judgment was rendered ordering the sheriff to produce for the inspection of plaintiff the financial records of the sheriff’s salary fund for the years 1972 to date on October 20, 1975, during regular business hours at the sheriff’s office in Coushatta, Louisiana. It was further ordered that plaintiff be granted the right to make memoranda or copies from these records but shall not remove them from the Red River Parish Courthouse.

Defendant was granted and perfected a suspensive appeal from the judgment of the district court. On appeal, defendant specifies three errors:

“(1) The Trial Court erred in ordering Sheriff Kirwen Brown to produce for plaintiff, Luie Caple, certain records or writings (as public records) after finding as a matter of fact that plaintiff upon making his request to Sheriff Brown for such production did not identify himself as an elector of the State, a taxpayer or any duly authorized agent of an elector or taxpayer.
“(2) That the order of the Court directing defendant, Sheriff Brown, to produce various documents and writings was in the nature of a declaratory judgment, and enlarged upon the relief prayed for.
“(3) The Trial Court erred in failing to find as unconstitutional the statute defining public records as being vague and overbroad.”

The applicable provisions of the Public Records Law (LSA-R.S, 44:1, et seq.) are as follows:

“§ 1. General definitions
“A. All records, writings, accounts, letters and letter books, maps, drawings, memoranda and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same, having been used, being in use, or prepared for use in the conduct, transaction or performance of any business, transaction, work, duty or function which was conducted, transacted or performed by or under the authority of the Constitution or the laws of this state, or the ordinances or mandates or orders of any municipal or parish government or officer or any board or commission or office established or set up by the Constitution or the laws of this state, or concerning or relating to the receipt or payment of any money received or paid by or under the authority of the Constitution or the laws of this state are public records, subject to the provisions of this Chapter except as hereinafter provided.
if % % %
“§ 31. Right to examine records
“The right to examine, copy, photograph and take memoranda of any and all public records, except as otherwise provided in this Chapter, may be exercised by:
(1) Any elector of the state.
(2) Any taxpayer who has paid any tax collected by or under the authority of the state if payment was made within one year from the date the taxpayer applies to exercise the right.
(3) Any duly authorized agent of paragraphs (1) and (2) above.
"§ 32. Duty to permit examination; prevention of alteration; payment for overtime
“All persons having custody or control of any public record shall present it to any person who is authorized by the provisions of this Chapter and who applies during the regular office hours or working hours of the person to whom the application is made. The persons in custody or control of a public record shall make no inquiry of any person authorized by this Chapter who applies for a public record, beyond the purpose of establishing his authority; and shall not review nor examine or scrutinize any copy, photograph or memoranda in the possession of any authorized person; and shall give, grant and extend to the authorized persons all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided, that nothing herein contained shall prevent the lawful custodian of a record from maintaining such vigilance as is required to prevent alteration of any such record while same is being examined by a person under the authority of this section; and provided further, that notwithstanding the requirements contained hereinabove, examinations of records under the authority of this section must be conducted during regular office or working hours. If the chief of the office or the person next in authority among those present in the office shall authorize examination of records in other than regular office or working hours, the persons designated to represent the lawful custodian of such record during such examinations shall be entitled to reasonable compensation to be paid to them by the office, agency or department having lawful custody of such record, out of funds provided in advance by the person examining such record in other than regular office or working hours. Amended by Acts 1968, No. 473, § L .
<( ‡ * #
“§ 35. Suits to enforce provisions; preference
“Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. All appellate courts to which the suits are brought shall place them on its preferential docket and shall hear them without delay. The appellate courts shall also render a decision in these suits within ten days after hearing them.”

Other sections of the law set forth certain exemptions and limitations, hut it is not contended that any of the exemptions specified in the Public Records Law are applicable in this case.

In support of his first specification of error defendant notes that plaintiff did not offer evidence that he identified himself to the sheriff as a taxpayer or elector at the time he made request to examine the sheriff’s records. Defendant argues that the sheriff was, therefore, justified in refusing examination of the records and plaintiff cannot maintain this suit to enforce the Public Records Law because he has not followed the proper procedure outlined by the statute.

LSA-R.S. 44:31 gives the right of examination of public records to any elector or taxpayer. LSA-R.S. 44:32 prohibits persons in custody or control of public records from making any inquiry of any person authorized by the law to examine a public record except for the purpose of ex-tablishing the person’s authority. It clearly appears from the record that the sheriff at no time questioned plaintiff’s authority as a taxpayer or elector. The sheriff testified he knew plaintiff. The record and briefs of counsel establish that plaintiff is a candidate for the office of sheriff of Red River Parish. A reading of the dialogue leading up to the stipulation by defendant at the trial of the rule that plaintiff is a taxpayer and elector shows that the obvious intent of the stipulation was to obviate any offering of proof as to plaintiff’s authority under the statute as a taxpayer or elector. Defendant’s argument as to lack of authority of plaintiff at the time the request was made, urged for the first time on appeal, is without merit.

In support of his second specification of error the defendant urges that the trial court, in effect, converted this action to one for a declaratory judgment rather than one to enforce the provisions of the Public Records Law. This argument, as we understand it, is also based on the premise that plaintiff did not follow the proper procedure in identifying himself when he made the request for examination. The discussion above of the first specification of error applies equally to the argument made by defendant in support of the second specification, which is likewise without merit.

In his third specification of error the defendant argues that the statute is vague, indefinite, overly broad and, therefore, unconstitutional, particularly in its definition of what constitutes public records.

The definition of public records contained in LSA-R.S. 44:1 is broad in the sense that it is virtually all inclusive. It is not, however, vague or indefinite. The statute defines public records by use of words with well understood meanings. It covers virtually every kind of record and every kind of written, printed or reproduced material used in the conduct, transaction or performance of any duty or function of a public office and particularly concerning or relating to receipt or payment of money by a public office or officer. Specifically listed are all records, writings, accounts, letters and letter books, maps, drawings, memoranda and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same. The records sought in this particular case clearly come within the statutory definition of public records.

Similar issues were raised in the recent case of Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974), writ denied 307 So.2d 372 (La.1975), which upheld the constitutionality of the Public Records Law. In that case the court held:

“ . . . the right of the public to be adequately informed is of fundamental importance. In addition, we believe that statutes providing for examination of public records must be liberally interpreted so as to extend rather than restrict access to public records. Lastly, and more importantly, we believe that the wording of our statute indicates legislative intent to make all public records open to the public. We also find no evidence of the intent of the legislature to qualify this right in any manner. In this regard, we note that the statute provides that all records, writings, memoranda and papers, etc. relative to any business transaction required by law is a public document open to inspection. The language employed is extremely broad and all inclusive.”

Defendant’s plea of unconstitutionality is without merit. The statute is not vague and indefinite and the fact that it is broad in scope does not give rise to any constitutional infirmity.

The records plaintiff seeks to examine are public records. He is entitled to examine the records in the manner provided by the Public Records Law. The sheriff has published audit reports covering a ten year period but this does not affect plaintiff’s right under the statute to examine the records themselves. The judgment of the district court recognizing and enforcing this right is correct.

The judgment of the district court ordered the sheriff to produce the records in question for examination by plaintiff on October 20, 1975, which date has now passed pending defendant’s suspensive appeal. The judgment is hereby amended by changing the date of the examination from October 20, 1975 to the first business day following the day on which the judgment of this court becomes final according to law. As amended, the judgment is affirmed. To the extent permissible under the law, all costs of these proceedings, including the cost of appeal, are assessed to the defendant-appellant.

Amended, and as amended, affirmed.


author: CULPEPPER, Judge.

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff and Appellant, v. Jenston SOILEAU, Defendant and Appellee.
    No. 5190.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.

      Fontenot & Mitchell, by Guy O. Mitchell, III, Ville Platte, for plaintiff-appellant.

      Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The holder sues a co-maker for the balance due on a promissory note. Defendant had signed as accommodation endorser the note which represented the balance due on a chattel mortgage on an automobile purchased by his son. The defendant filed an exception of no cause of action on the grounds that he cannot be sued for the deficiency due on the note, since he was not made a party in the prior executory proceedings against his son, the other co-maker. The trial judge sustained the exception. Plaintiff appealed.

The issues are: (1) Was the defendant merely an accommodation endorser of the note, or was he a co-buyer and co-owner of the automobile? (2) If defendant was only an accommodation endorser, is he released from liability on the note by failure of the plaintiff to name him as a party or to serve him in the prior executory proceedings ?

The facts show that in June of 1973 Terrell B. Soileau, defendant’s son, signed the act of sale and chattel mortgage and the note on lines indicated for the “Buyer”. Terrell’s father, the defendant, signed both instruments on lines indicated “Co-Buyer”. But the space in the form for the name of the “Buyer (and Co-Buyer)” shows Terrell alone as the buyer. We conclude the instruments on their face show the intent of the parties was that Terrell be the sole owner.

Furthermore, the documents in the exec-utory proceedings show that the Certificate of Title was issued by the Motor Vehicle Division of the State of Louisiana in the name of Terrell B. Soileau only. The Certificate of Title constitutes prima facie proof that Terrell B. Soileau was the sole owner of marketable title to the vehicle, LSA-R.S. 32:706. We recognize that the Certificate of Title is not conclusive proof of ownership, and that proof showing different ownership is admissible. Scott v. Continental Insurance Company, 259 So.2d 391 (La.App., 2d Cir. 1972). However, in the present case, there is no evidence showing the owner is other than Terrell B. Soileau alone. We conclude the defendant in the present case is an accommodation co-maker of the note, and that he owned no interest in the automobile.

Terrell B. Soileau defaulted on the note in November of 1974, thus causing the entire debt to become immediately due and owing under the terms of the contract. Plaintiff filed executory proceedings against only Terrell B. Soileau. Jenston Soileau was neither made a party, nor served with notice that the automobile had been seized and would be sold on February 26, 1975 with appraisement.

On February 26, 1975, the sheriff sold the vehicle with appraisement to the highest bidder, Ford Motor Credit Company, the plaintiff in both that suit and the instant matter. The proceeds from the sale were insufficient to completely satisfy the indebtedness.

Plaintiff then filed the present suit via ordinary process against only the co-maker, Jenston Soileau, for the balance of $2,374.-40 due on the note. Defendant interposed exceptions of “No Right of Action and/or No Cause of Action”, and of nonjoinder of an indispensable and necessary party, i.e., Terrell B. Soileau. The trial judge upheld the exceptions of “No Right of Action and/or No Cause of Action” and dismissed the suit. He assigned as reasons for the dismissal that “executory process is a harsh remedy”, and that any defect in the executory proceedings should defeat an action for a deficiency judgment. He considered the lack of notice to defendant, Jenston Soileau, a defect.

The Deficiency Judgment Act (LSA-R.S. 13:4106-7) prohibits an action for a deficiency judgment where property has been sold without appraisement. Jurisprudence has also established the rule that a deficiency judgment is prohibited where there is any fundamental defect in the proceedings, Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Reed v. Meawx, 292 So.2d 557 (La., S.Ct. 1973); Blaize, Civil Procedure — Deficiency Judgment After Invalid Executory Process, 29 La.L.Rev. 405.

In the present case, the property was sold with appraisement and in compliance with all the safeguards of the Deficiency Judgment Act. The only defect urged in the executory proceedings is that the defendant accommodation co-maker of the note was not made a party defendant nor was he served with notice of the proceeding.

The redactors of the Deficiency Judgment Act did not contemplate its application to persons other than owners of an interest in the property sold at the judicial sale. Emmco Insurance Company v. Nola Cabs, Inc., 125 So.2d 207 (La.App., 4th Cir. 1960); Guinn v. Houston Fire & Casualty Insurance Company, 32 So.2d 613 (La. App., 1st Cir. 1947). It was designed to protect only mortgage debtors who own an interest in the property. Gumina v. Dupas, 178 So.2d 291 (La.App., 4th Cir. 1965); Chrysler Credit Corporation v. Breaux, 293 So.2d 261 (La.App., 1st Cir. 1974); Southland Investment Company, Inc. v. Motor Sales Company, 198 La. 1028, 5 So.2d 324 (S.Ct.1941).

The rationale of the act is the strong public policy of protecting a debtor from possible abuse resulting from the judicial sale of his property without notice and without the benefit of proper appraisement. Blaize, Civil Procedure Deficiency Judgment After Invalid Executory Process, 29 La.L.Rev. 405 at page 408; Universal CIT Credit Corporation v. Hulett, 151 So.2d 705 (La.App., 3rd Cir. 1963); Home Finance Service v. Walmsley, 176 So. 415 (Orl.App.1937); Southland Investment Company, Inc. v. Motor Sales Company, supra. But this public policy is not applicable to persons other than the owners of the encumbered property.

Furthermore, the service of notice of the executory proceedings on Jenston Soileau would not have protected him. Since he was neither an owner nor a mortgagor of the vehicle, he could not have appointed appraisers, nor enjoined the proceedings nor even effectively intervened. LSA-C. C.P. 2631, 2634, 2642, 2751 and 2643.

The only case we have found dealing precisely with the factual situation here presented is Chrysler Credit Corporation v. Breaux, supra, in which our Supreme Court denied writs, 294 So.2d 548, La.App.; for the reason: “The judgment complained of is correct.” In that case, executory process issued against only the owner of the mortgaged property. The property wa„ sold with appraisement in compliance with the Deficiency Judgment Act. The proceeds from the sale were insufficient to pay the balance due on the note. The plaintiff then sued both the mortgage debt- or and the accommodation co-maker for the deficiency. The accommodation comaker owned no interest in the property. Nevertheless, he contended the Deficiency Judgment Act protected him since he was not made a party in nor was he notified of the prior executory proceeding. In rejecting this contention, the court recognized that the Deficiency Judgment Act was designed to protect mortgage debtors — persons who have an interest in the property. The court distinguished Consolidation Loans, Inc. v. Guerico, 200 So.2d 717 (La. App., 1st Cir. 1966), where the defendant co-maker owned an interest in the property, and rejected dicta in that case that even a co-maker without an interest in the property should be notified.

We find no legal impediment to this suit via ordinaria to collect the balance due on the note from Jenston Soileau. The note provided “For value received, I, we (jointly and severally) promise to pay . ” There is no doubt that where co-makers employ the term “I” in describing their promise to pay, solidary liability results. Johnson v. Jones-Journet, 320 So. 2d 533 (S.Ct.La.1975); Shreveport Bank & Trust Company v. Tyler, 275 So.2d 451 (La.App., 2d Cir. 1973); LSA-R.S. 7:17(7). And in Johnson v. Jones-Journet, supra, our Supreme Court held that “In Louisiana, the common law term ‘joint and several’ is considered synonymous with the civil law term ‘in solido’.” The rationale is that the parties intended their liability to be solidary. See LSA-C.C. Articles 2882, 2888 and 2091. Where co-makers are bound in solido, suit and resulting judgment against one does not preclude subsequent suit against the other. LSA-C.C. Article 2095, Gisclair v. First National Bank of Lafayette, 180 So.2d 595 (La. App., 3rd Cir. 1965).

In support of his position, defendant cites Exchange National Bank of Chicago v. Spalitta, 295 So.2d 18 (La.App., 4th Cir. 1974). Our Supreme Court granted writs in that case, 299 So.2d 360, La.App., and, after an original decision with three justices dissenting, granted a rehearing but on November 3, 1975 rendered judgment reinstating its original opinion. Regardless of the final decision by our Supreme Court in that case, it does not change the result in the present matter. The two cases are distinguished on the facts.

In Exchange National Bank of Chicago v. Spalitta, the plaintiff bank sued the defendants as accommodation guarantors of a large mortgage loan made to Place Ven-dóme Corporation. The corporation invoked bankruptcy proceedings by petition for reorganization. During the reorganization proceedings in the bankruptcy court, the bank petitioned for a sale of the mortgaged properties, pursuant to which the properties were sold at public auction without compliance with the Deficiency Judgment Act. The bank then sued the defendants-guarantors for the balance due on the loan. Our Supreme Court decided the suit against the guarantors is not barred by the failure of the plaintiff bank to comply with the safeguards of the Louisiana Deficiency Judgment Act. In the present case, unlike Exchange National Bank of Chicago, the plaintiff complied in full with the safeguards of the Louisiana Deficiency Judgment Act and thereby reserved its right to proceed for the deficiency not only against the mortgage debtor but also against the co-maker, both of whom are still liable in solido for the balance due. We have no question in the present case, as the Supreme Court had in that case, of the effect of failure to comply with the Deficiency Judgment Act, or of the co-debtor in solido being released by the release of another co-debtor or of the impairment of subrogation rights as between co-debtors in solido by the release of one co-debtor.

Finally, it should be noted that in brief to this Court counsel for plaintiff-appellant argues the merits of his exception of nonjoinder of Terrell B. Soileau as a party defendant. The trial judge did not rule on this exception. He dismissed the suit on the exception of “No Right of Action and/or No Cause of Action.” Where the trial court neither rules on an exception nor is requested to rule, the exception is abandoned. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); Oil Purchasers, Inc. v. Kuehling, 321 So.2d 17 (3rd Cir. La.App.1975).

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered overruling defendant’s exceptions of no right of action and no cause of action. This case is remanded to the Thirteenth Judicial District Court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are to be paid by defendant-appellee. Assessment of costs in the District Court must await a final judgment there.

Reversed and remanded.


author: DOMENGEAUX, Judge.

text:
    ROLLINS INTERNATIONAL, INC., Plaintiff and Appellant, v. E. W. (Billy) MELDER, Defendant and Appellee.
    No. 5216.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    George & George by Robert Hoover, Baton Rouge, for plaintiff and appellant.
    Teekell & Chaudoir by Lloyd G. Teekell, Alexandria, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Rollins International, Inc., instituted this action to recover damages resulting from a collision involving its insured, Matlack, Inc., with cattle allegedly belonging to defendant, E. W. Melder. Defendant filed a peremptory exception of prescription which the trial court sustained, dismissing plaintiff’s suit. From this judgment plaintiff has appealed.

Plaintiff’s petition alleges that on July-17, 1973, at approximately 12:45 A. M. its insured’s employee, Lester Dietzel, was operating a 1973 diesel Mack tractor on U. S. Highway 165 in Rapides Parish, Louisiana. The insured vehicle collided with four head of cattle which were allegedly on the highway. As both collision and workmen’s compensation insurer for Matlack, Inc., plaintiff paid a total of $7,889.60 for physical damage to the insured unit, wrecker services, loss of use of the unit, and compensation and medical expenses to the insured’s employee.

At the trial of the exception it was disclosed that upon investigation of the accident plaintiff was led to believe that the cattle involved in the collision belonged to one E. W. Melder, also known as Billy Melder, a resident of Forest Hill, Louisiana. Plaintiff’s claims representative in Wilmington, Delaware, contacted E. W. Melder by certified mail on November 13, 1973, and again on March 22, 1974. Both letters referred to the accident and requested that defendant contact plaintiff’s claim office to discuss reimbursement for the amounts expended by the latter. Both letters were addressed to “Mr. E. W. Melder, General Delivery, Forest Hill, Louisiana 71430”. These letters were accepted and signed for, as is evidenced by E. W. Melder’s signature on the postal receipts which were introduced in evidence. After receiving no reply from the defendant, plaintiff referred this matter to its attorney, who contacted Mr. Melder on May 14, 1974, again by certified mail. The attorney’s letter informed Mr. Melder that if he failed to contact the attorney within ten days concerning the accident, suit would be filed in the matter without further notice. E. W. Melder also accepted this letter and signed the postal receipt for it.

On June 11, 1974, plaintiff filed suit against defendant in Rapides Parish. The caption in this action was styled “Rollins International, Inc. v. E. W. (Billy) Melder” and sought recovery of the amounts expended by plaintiff in accordance with its two abovementioned insurance policies. The petition further alleged that the cattle involved in the accident belonged to defendant and that the area in which the accident occurred was a “No Stock Highway” as contemplated by LSA-R.S. 3:2802 and 3:2803. At the end of plaintiff’s petition under the heading “Service Information:” is the direction to serve “E. W. Melder, General Delivery, Forest Hill, Louisiana 71430”. However, the citation prepared by the Rapides Parish Clerk of Court directed the Sheriff’s Deputy to serve E. W. (Billy) Melder, apparently referring to the caption of the suit rather than the more accurate service information.

The evidence reveals that the defendant, E. W. Melder, has a son known as Billy Gene Melder, who lives in the same vicinity, approximately one-half mile from his father. The defendant is known in the community as E. W. Melder, or Gene Melder. The initials “E. W.” stand for Eugene Wilbur. Defendant’s son’s Christian name is Billy Gene. The evidence indicates that no one in the community knew or referred to the defendant as “Billy”, nor did anyone recognize his son as “E. W.” However, the Sheriff’s Deputy, who testified that he knew both the defendant and his son as well as everyone else in Forest Hill, Louisiana, a small rural community, served the petition upon Billy Gene Melder. The younger Melder testified that he did not read the body of the petition but merely contacted the Deputy and informed him that he was not “E. W. (Billy) Melder” but simply Billy Melder. The Deputy then retrieved the petition and made the following notation on the citation: “No E. W. (Billy) Melder in Forest Hill. Returned 18 June 74 unable to locate. Info Deputy Durwood Johnson.”

When plaintiff learned that there had been an unsuccessful attempt at service of process in this matter, it amended its original petition designating “E. W. Melder” as defendant rather than “E. W. (Billy) Melder”.. However, this amendment was made on September 24, 1974, more than one year after the occurrence of the accident.

After a trial on the defendant’s exception of prescription the trial judge dismissed the suit finding that plaintiff’s amendment was untimely and that the plaintiff’s action was barred by the one year prescriptive period applicable to Civil Code Article 2315. The trial judge found that the defendant, E. W. Melder, had no notice of suit prior to the running of prescription and stated:

“ . . . if a petition simply naming E. W. Melder would have been sufficient to interrupt prescription the addition of the name “Billy” in parenthesis destroyed that effect . . . .”
LSA-R.S. 9:5801, as amended, provides
“§ 5801. Interruption of prescription by filing of suit, service of process
All prescriptions affecting the cause of action therein sued upon are .interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process. As amended Acts 1960, No. 31, § 1.”

The term “all defendants” in the above statute refers to only those defendants who are named as such in the petition. Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974); Martin v. Mud Supply Co., Inc., 239 La. 616, 119 So.2d 484 (La.1959). Thus if a defendant is named in a suit and that suit is filed in a court of competent jurisdiction and in the proper venue, prescription is interrupted on that cause of action, even if the defendant is not served. Pursuant to the second clause of 9:5801, the necessity of service of process for the interruption of prescription exists only when the action has been commenced in an incompetent court or in an improper venue.

Since this suit was filed in a competent court and in proper venue, we must determine whether the manner in which the defendant was named in the original petition was sufficient to interrupt prescription under 9:5801.

Defendant contends that by styling this action against “E. W. (Billy) Melder” the plaintiff intended all along to sue Billy Gene Melder and not E. W. Melder. We find this proposition difficult to accept. The evidence clearly establishes that the plaintiff and its attorney sent a total of three letters by certified mail to E. W. Melder. The defendant accepted and signed for all three of these communications. Further, the service information at the end of plaintiff’s original petition requested citation of and service on “E. W. Melder” not “E. W. (Billy) Melder”. It is not unreasonable to assume that the “W” in the defendant’s name was the initial for William, and that “Billy” was simply a nickname which defendant may have sometimes used.

Hence, it is clear that plaintiff intended to sue E. W. Melder from the outset and made a reasonable attempt to do so. While the addition of the name “Billy” to the caption of the petition may have been confusing or misleading, the fact that the name was placed in parenthesis is an indication that it is suggestive merely of a nickname. The inclusion of “(Billy)” in the caption is of slight significance when viewed in the total factual context of this case, and should not destroy the effect of E. W. Melder being named as defendant in the suit.

We find the case of Allstate Insurance Company v. C. D. Manemin, 280 So.2d 857 (La.App. 3rd Cir. 1973) analogous to the instant litigation. In Manemin the plaintiff sued C. D. McManemin who was the father of the proper defendant, D. C. McManemin. The plaintiff amended his petition stating the proper juxtaposition of the first names after the prescriptive period had run. The court found that the suit against “C. D. McManemin” was sufficient to interrupt prescription as to the proper defendant, D. C. McManemin. The court stated:

“To deny plaintiff its day in court because of an error in the first name would cause a grave injustice to plaintiff.”

Likewise, in this case plaintiff should not be denied its day in court merely because it included, parenthetically, what it believed to be a nickname in the caption of the suit. Justice is not served by a hyper-technical application of the law.

Under the facts of this case we hold that the plaintiff adequately identified and designated the defendant, E. W. Melder, in its original petition, thus interrupting prescription in accordance with 9:5801.

For the above and foregoing reasons, the judgment of the district court is reversed, the exception of prescription is overruled, and the case is remanded to the district court for further proceedings.

All costs in connection with the trial of this exception in the district court, as well as the costs of this appeal, are assessed against defendant-appellee, E. W. Melder. All other costs shall await final determination of this case.

Reversed and remanded.