author: CULPEPPER, Judge.

text:
    R. B. BROCK, Plaintiff and Appellee, v. TIDEWATER CONSTRUCTION COMPANY, Defendant and Appellant.
    No. 5102.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.

      Bolen & Halcomb by Gregory S. Erwin, Alexandria, for defendant and appellant.
    Holloway, Baker, Culpepper & Brunson by Donald C. Brown, Jonesboro, for plaintiff and appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This case was consolidated on appeal with Liberty Mutual Insurance Company v. Brock, 318 So.2d 105, in which a separate decision is being rendered by us this date.

In the present case, the plaintiff-employee, R. B. Brock, filed suit against only his employer, Tidewater Construction Company, for workmen’s compensation benefits due for an injury which occurred on November 6, 1973. Plaintiff also sued for penalties and attorney’s fees.

Prior to trial, plaintiff entered into a stipulation with the defendant-appellant, Tidewater Construction Company, represented by Mr. James A. Bolen, Jr. In the stipulation, the employer admits liability for compensation, but states that after this suit was filed on January 16, 1974, weekly payments were started on January 23, 1974 and have since been continued. The parties stipulated that the only issue is whether plaintiff is entitled to penalties and attorney’s fees.

The stipulation also states that at the time of the accident the defendant-appellant, Tidewater Construction Company, had in effect a policy of workmen’s compensation insurance with Liberty Mutual Insurance Company. Of course, the effect of this latter stipulation is that the employer, being insured, cannot be liable for penalties and attorney’s fees, LSA-R.S. 23:1201.2; DeJean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir. 1973).

The case went to trial on the issue of penalties and attorney’s fees. Judgment was rendered rejecting plaintiff’s claim against the employer, Tidewater. But the judgment casts Liberty Mutual Insurance Company for $1,500 in attorney’s fees and $85.80 in penalties.

Thereafter, the trial court rendered a “Supplemental Opinion” which states in pertinent part:

“Defense counsel states that plaintiff did not sue Liberty Mutual Insurance Company, and, therefore, was not made a part of this lawsuit. However, by joint stipulation of facts signed by both attorneys for plaintiff and defendant and filed on May 20, 1974, the following stipulation is found:
“ ‘The defendant herein, Tidewater Construction Company, is a Virginia corporation, duly licensed to do business within the State of Louisiana. That at the time of the injury to Mr. Brock, defendant had in effect a policy of workmen’s compensation insurance with Liberty Mutual Insurance Company for the type of damages complained of herein.’
“Defense counsel, having lulled plaintiff’s counsel into a sense of secutiy by stipulation that Liberty Mutual Insurance Company insured Tidewater Construction Company for the damages alleged in “plaintiff’s suit, is now estopped from claiming Liberty Mutual Insurance Company was not a part of this lawsuit.
“The original opinion stands.”

From this judgment the employer, Tidewater, appealed. There is no appeal in the present case by the insurer, Liberty Mutual. Instead, Liberty Mutual filed a separate suit (the companion case) directly attacking the judgment in the present matter on the grounds of lack of personal jurisdiction.

The plaintiff-employee filed a motion in this Court to dismiss the appeal by Tidewater on the grounds that plaintiff’s claim against Tidewater having been rejected, it has no right to appeal. Because of the unusual posture of these consolidated cases, that motion was referred by us to the merits.

The issues presented for our consideration are: (1) Should this appeal be dismissed? (2) If not, did the trial court have jurisdiction to render an in personam judgment against Liberty Mutual Insurance Company ?

MOTION TO DISMISS APPEAL

LSA-C.C.P. Article 2162 provides in part:

“An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.” (Emphasis supplied)

Plaintiff contends that Tidewater has no right to appeal, since no judgment was rendered against it. He says Tidewater has no interest in seeking reversal or modification of the judgment against Liberty Mutual.

This is a serious question, but we ultimately conclude that under the peculiar facts of these consolidated cases, Tidewater does have a sufficient interest to appeal.

LSA-C.C.P. Article 2082 states that “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” In addition, Article 2086 provides that even a person who is not a party but “who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” So it is clear that our law contemplates no necessity that a person have a judgment directly against him in order to appeal.

The jurisprudence is consistent in holding that where a party is “aggrieved” by a judgment, he has a right to an appeal, Andrus v. Police Jury of Parish of Lafayette, 266 So.2d 535 (La.App. 3rd Cir. 1972); Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Acadian Production Corporation of Louisiana v. Savannah Corporation, 226 La. 849, 77 So.2d 417 (1954). And this rule applies even where the party appealing “may be” aggrieved, Swan v. Mayer, 211 So.2d 346 (La.App. 4th Cir. 1968). But there are cases which hold that a party has no right to appeal where he can in no way benefit by a reversal or change in the judgment from which he appealed, Werhan v. Helis, 147 So.2d 260 (La.App. 4th Cir. 1962). Our Supreme Court has stated that while a party must be aggrieved by a trial court judgment in order to exercise a right to an appeal, it is not necessary that he allege or show any direct pecuniary interest, Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Krauss Company v. Develle, 235 La. 1013, 106 So.2d 452 (1958).

It is well established law that appeals are favored by Louisiana courts, Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Vidrine v. American Employers Insurance Company, 129 So.2d 284 (La.App. 3rd Cir. 1961), and unless the grounds urged for a dismissal are free from doubt, an appeal will be sustained, Emmons v. Agricultural Insurance Company, supra.

Tidewater Construction Company is the only named defendant in this suit. Although judgment was not rendered against it, judgment was rendered against its insurer for penalties and attorney’s fees on the grounds that the insurer was arbitrary and capricious in failing to pay workmen’s compensation benefits to one of Tidewater’s employees. The judgment aggrieves Tidewater in the sense that it implies Tidewater carried its insurance with a company which arbitrarily refused to pay compensation.

We conclude the motion to dismiss the appeal must be denied. However, as a practical matter, the result in these consolidated cases would not be changed even if we dismissed the appeal in the present case. For if this appeal were dismissed, the judgment appealed would nevertheless be annulled in the companion case.

VALIDITY OF JUDGMENT AGAINST LIBERTY MUTUAL

Appellant contends that the trial court was without personal jurisdiction to render judgment against Liberty Mutual Insurance Company. LSA-C.C.P. Article 6 provides :

“Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against the party to an action or proceeding. This jurisdiction must be based upon:
(1) The service of process on the defendant, or on his agent for the service of process;
(2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
(3) The submission of the party to the exercise of the jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.”

In the present case plaintiff did not sue Liberty Mutual. Thus, there was no service of process in accordance with Sections (1)or (2) of Article 6. The sole question is whether Liberty Mutual submitted to personal jurisdiction by express or implied waiver under Section (3) quoted above.

LSA-C.C.P. Article 7 provides:

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

The first thing we notice is that Article 7 applies to parties to the action. Liberty Mutual has not become a party to this action by any pleadings whatever. Plaintiff cites no authority for the application of Article 7 to persons who are not parties to the action in some capacity.

Furthermore, even assuming Liberty Mutual had been named as a party, it made no general appearance under Article 7. No answer, or other pleadings were presented by it to the court. Jurisprudence has held that even physical presence of a party at the trial, or testimony in court or by deposition, does not constitute a general appearance, Friere v. Wiles, 284 So.2d 817 (4th Cir. 1973); Johnson v. Robottoms Mortuary, 258 So.2d 666 (La.App. 4th Cir. 1972). These cases hold that general appearance means a formal entry into the litigation by filing pleadings seeking some type of relief.

Appellee urges that the stipulation entered into on behalf of Tidewater by Mr. Bolen, stating that Liberty Mutual Insurance Company is the workmen’s compensation insurer for Tidewater, is a submission by Liberty Mutual to the personal jurisdiction of the court because Bolen is also attorney for Liberty Mutual. But the stipulation states Bolen appeared therein only for Tidewater. The purpose being, of course, to avoid rendition of a judgment for attorney’s fees against Tidewater. Under LSA-R.S. 23:1201.2, attorney’s fees may not be assessed against an employer who is insured.

The record is clear that the only capacity in which Mr. Bolen appeared in the trial on the merits was for Tidewater. During the course of the trial he stated: “Your Honor, I don’t know what the problem is here. We are in Court as to whether the claim was properly reported and paid, as against Tidewater Construction Company, the defendant. It seems that counsel is now shifted to a demand against Liberty Mutual as to whether Liberty Mutual, as a party defendant, promptly paid medical expenses. Liberty Mutual is not a party to the lawsuit. The question is whether or not the claim was properly reported and acted upon by Tidewater Construction Company, the named defendant.”

Plaintiff cites no authority, nor do we find any, to support the trial judge’s statement that his court could acquire personal jurisdiction by estoppel. Our law specifically requires service of process, or waiver thereof, by a party. Louisiana Code of Civil Procedure Articles 6, 7 and 1201. See also Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).

Article 2002 of the Louisiana Code of Civil Procedure provides in part:

“A final judgment shall be annulled if it is rendered:
* * * * * *
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;
* *

Since Liberty Mutual Insurance Company was not served with process and made no general appearance, the judgment rendered against it must be annulled.

Because of our decision that the trial court had no personal jurisdiction over Liberty Mutual Insurance Company, we do not reach the question of whether its delay in paying benefits was arbitrary or capricious.

For the reasons assigned, the motion to dismiss this appeal is denied. The judgment appealed is reversed and set aside. Judgment is now rendered dismissing plaintiff’s suit. All costs in the trial and appellate courts are assessed against the plaintiff.

Reversed and rendered.


source: Caselaw Access Project

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff and Appellant, v. R. B. BROCK, Defendant and Appellee.
    No. 5103.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Bolen & Halcomb by Gregory S. Erwin, Alexandria, for plaintiff and appellant.
    Holloway, Baker, Culpepper & Brunson by Donald C. Brown, Jonesboro, for defendant and appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This case was consolidated on appeal with Brock v. Tidewater Construction Company, 318 So.2d 100, in which a separate judgment is being rendered by us this date.

In the companion case, the district court rendered judgment in favor of R. B. Brock and against Liberty Mutual Insurance Company for penalties and attorney’s fees, on the grounds that Liberty Mutual was arbitrary and capricious in failing to pay workmen’s compensation benefits. On appeal, we reversed the judgment against Liberty Mutual on the grounds that it was not named as a party defendant in that suit, was not served with process, nor did it waive service of process by a general appearance. ' We held, therefore, that the judgment against Liberty Mutual Insurance Company in the companion case is null for lack of personal jurisdiction of the court.

The present case is a separate suit by Liberty Mutual Insurance Company against R. B. Brock directly attacking for lack of personal jurisdiction the judgment rendered by the district court in the companion case. From an adverse judgment, Liberty Mutual appealed.

For the reasons stated in our decision in the companion case, we conclude that the judgment attacked is void for lack of personal jurisdiction of the court. The judgment appealed in the present case is therefore reversed and set aside. Judgment is now rendered in favor of the plaintiff, Liberty Mutual Insurance Company, and against the defendant, R. B. Brock, annulling that certain judgment signed on November 19, 1974 in the suit entitled “R. B. Brock v. Tidewater Construction Company”, bearing No. 39,724 on the docket of the Tenth Judicial District Court for the Parish of Natchitoches. All costs both in the trial and appellate courts are assessed against the defendant.

Reversed and rendered.


author:
WATSON, Judge.
      FRUGÉ, Judge DOMENGEAUX, Judge

text:
    Joseph H. TAYLOR, Jr., Plaintiff-Appellant, v. Mary Rose CASTILLE et al., Defendants-Appellees.
    No. 5089.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct 1, 1975.
    Writ Refused Oct. 31, 1975.

      Broussard, Broussard & Moresi, Ltd. by Marcus A. Broussard, Jr., Abbeville, for plaintiff-appellant.
    Darrell J. Hartman, Kaplan, Thompson & Sellers by Roger C. Sellers, Abbeville, for defendants-appellees.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

This is an action en desaveu, brought by plaintiff, Joseph H. Taylor, Jr. Defendants are his wife, Mary Rose Castille, and the child, Nicole Taylor. The latter is represented in these proceedings by an attorney at law appointed to represent her.

The trial court sustained an exception of no right or cause of action to plaintiff’s petition, and plaintiff has appealed.

Plaintiff’s petition alleges that he was married to Mary Rose Castille in Abbeville on October 28, 1972, and, at that time, she was with child by another man. Plaintiff also alleges that Mary Rose Castille and others told him that unless he married her they would file criminal charges of “carnal knowledge” against him and that in fact they did file criminal charges with the District Attorney against him. Plaintiff further alleges that he was frightened and that he married Mary Rose Castille under the pressure of the criminal charges. Plaintiff significantly alleges that the parties lived together 15 days and then separated. Mary Rose Castille gave birth to a child on December 10, 1972, that child being the defendant Nicole Taylor, and plaintiff alleges that the child is not his.

Plaintiff’s prayer is that an attorney be appointed to represent Nicole Taylor and that, after due proceedings, there be judgment decreeing that the child is not plaintiff’s.

To plaintiff’s petition, Mary Rose Cas-tille and Nicole Taylor filed an exception styled “Exception of No Right or Cause of Action”. It stated that plaintiff’s petition disclosed that he was acquainted with the circumstances of the pregnancy of Mary Rose Castille before their marriage and that, under LSA-C.C. art. 190, plaintiff cannot contest the legitimacy of a child born previous to the 180th day of marriage.

After hearing, the trial court sustained the exception of no right or cause of action and ordered that plaintiff’s demands be dismissed.

The issue, simply stated, is whether plaintiff’s petition discloses a cause of action. We are dealing with cause of action and not right of action.

The Louisiana Civil Code contains several articles which are pertinent to the issue. These are as follows:

LSA-C.C. Article 190:

“Art. 190. Husband’s loss of right to disavow
Art. 190. The husband can not contest the legitimacy of the child born previous to the one hundred and eightieth day of marriage, in the following cases:
1. If he was acquainted with the circumstances of his wife being pregnant previously to the marriage.
2. If he was present at the registering of the birth or baptism of the child and signed the same, or if not knowing how to sign, he put his ordinary mark to it, in presence of two witnesses.”

LSA-C.C. Article 110:

“Art. 110. Forced consent; mistake in person
Art. 110. Marriages celebrated without the free consent of the married persons, or of one of them, can only be annulled upon application of both the parties, or of that one of them whose consent was not free.
When there has been a mistake in the person, the party laboring under the mistake can alone impeach the marriage.”

LSA-C.C. Article 111:

“Art. 111. Cohabitation after recovery of freedom or discovery of mistake
Art. 111. In the cases embraced by the preceding article, the application to obtain a sentence annulling the marriage, is inadmissible, if the married persons have, freely and without constraint, cohabited together after recovering their liberty or discovering the mistake.” •

These articles have been the subject of interpretation by the jurisprudence. The cases of Brugman v. Prejean, 288 So.2d 702 (La.App. 3 Cir. 1974), and Smith v. Smith, 300 So.2d 205 (La.App. 3 Cir. 1974), both recognize the viability of Article 190.

The case of Walker v. Jarnevich, 102 So.2d 770 (La.App. 2 Cir. 1958), recognizes the general rule of Article 190 that where a man is familiar with the fact that a woman is pregnant at the time of their marriage, and a child is born previous to the 180th day of the marriage, (60 days after marriage in Walker) the husband is forever barred from contesting his paternity of the child.

The somewhat earlier case of Wheeler v. Turlich, 176 La. 301, 145 So. 546 (1933), was an action to annul a marriage. While the case did not specifically include the issue of paternity of the child, the Supreme Court said (as dicta) that the presumption of paternity established by Article 190 results only from proof of a “valid and existing marriage.” 145 So. 547. The actual holding was that the presumption of paternity cannot be relied upon to serve as proof of the marriage itself.

In Succession of Barth, 178 La. 847, 152 So. 543 (1934), where plaintiff was suing to be recognized as son and forced heir, it was held error to exclude evidence tending to prove that plaintiff was born more than 180 days after the husband’s marriage to plaintiff’s mother, notwithstanding anannulment five years after the marriage on thé ground that the husband’s consent had been obtained by force. The court said a marriage celebrated according to law is valid, even if one party’s consent was forced, until annulled through suit by that party.

Applying the codal articles and Walker, Wheeler and Barth to the instant case, we note first that plaintiff’s petition does not allege that his marriage to the child’s mother has been declared null and he does not demand such a determination in this lawsuit. To state a cause of action under the codal articles and jurisprudence cited, it would be necessary for plaintiff to: (1) show that the marriage has been annulled; or (2) seek a judgment annulling the marriage in this suit. The only reference to a proceeding for annulment is contained in the representation in the brief filed by counsel for plaintiff that a suit is presently pending between plaintiff and defendant Castille to annul the marriage. However, as noted above, plaintiff alleged in his petition that he was married to defendant Castille and that he lived with her some IS days after the marriage. There is no allegation that he was under fear or duress during the IS days subsequent to the marriage and the situation seems to fall squarely within the contemplation of Article 111 which prohibits annulment if the parties have cohabited freely even though the marriage was under duress.

Thus, while plaintiff contends that his marriage was a nullity and his counsel represents that another suit' is pending to have the marriage annulled, we can review the trial court’s ruling on the exception of no cause of action only on the record before us. The allegation of IS days cohabitation brings the case squarely within the holding of Thompson v. Thompson, 148 La. 499, 87 So. 250 (1921), a case decided many years ago by the Louisiana Supreme Court and never overruled. The plaintiff in Thompson alleged that through fear induced by threats of criminal prosecution and bodily harm he was required to marry. He also alleged that he lived with his spouse only three days. The Supreme Court concluded that the allegations in the petition only reflected that plaintiff was required to marry to avoid the threatened danger and that he was not required to cohabit with the defendant. This is an identical situation to the case before us where plaintiff alleges that he cohabited with defendant Castille for a period of 15 days, although it is not alleged that he was required to do so by reason of threats. The only allegation here, as in Thompson, is that he was coerced into marrying by the threat of criminal prosecution.

In Thompson, speaking of plaintiff’s claim to annul the marriage, the Supreme Court said:

“Plaintiff’s petition does not disclose a cause of action. A marriage cannot be annulled for want of the free consent of one of the parties, if they have cohabited as husband and wife freely and without constraint.” 87 So. 250.

See also Boutterie v. Demarest, 126 La. 278, 52 So. 492 (1910) where cohabitation for only one day and one night was held to ratify a marriage.

While we are not called on to decide plaintiff’s claim for annulment of the marriage, we might under some circumstances remand for a determination of this question by the trial court. However, we cannot ignore the allegation of cohabitation. If one or three days’ cohabitation, as in Thompson and Boutterie ratify a marriage, then 15 days living together leaves no doubt as to ratification. Thus, plaintiff’s claims collide with the law’s great reluctance to annul marriages and to bastardize children. He has no cause of action.

We conclude that the trial court was correct in deciding that plaintiff’s petition in the instant case does not allege a cause of action. Plaintiff’s petition does not allege that the marriage has been annulled and his allegations in the petition now before us contain admissions which would preclude him from obtaining a decree of annulment under the circumstances.

Therefore, the judgment of the trial court is affirmed. Costs are taxed against appellant.

Affirmed.

FRUGÉ, J., concurs in decree and assigns reasons.

DOMENGEAUX, J., dissents and assigns written reasons.

FRUGÉ, Judge

(concurring).

I concur in the result reached in the majority opinion. The plaintiff’s petition expressly sets forth that he was acquainted with the circumstances of his wife being pregnant previous to the marriage. Under the circumstances, the exception of no cause of action based on Louisiana Civil Code Article 190 was properly sustained. It is unnecessary to discuss the validity vel non of the marriage. Therefore, I concur in the result.

DOMENGEAUX, Judge

(dissenting).

I cannot agree with the majority’s strict application of the exception of no cause of action under the factual circumstances of this case.

The plaintiff seeks to disavow a child born previous to the 180th day of his marriage. The defendant filed an exception, styled “no right or cause of action”, on the basis that plaintiff was “acquainted with the circumstances of his wife being pregnant previously to the marriage” and therefore could not contest the legitimacy of the child via Louisiana Civil Code Art. 190.

As the majority points out in its opinion, this basis for the loss of the right to disavow presupposes proof of a “valid and existing marriage”, Wheeler v. Turlich, 176 La. 301, 145 So. 546 (1933), and certainly one which is voluntary in nature.

Plaintiff herein contends that he was coerced into marrying the defendant — wife under pressure of criminal charges, i.e. without free consent, (Civil Code Art. 110), and as a result the marriage was invalid and Civil Code Article 190 is inapplicable.

This in my opinion, without anything further, clearly states a cause of action. If the petition states a cause of action as to any ground or portion of the demand the exception of no cause of action must be overruled. Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971).

The majority, however, takes the case one step further, finds that plaintiff alleged he lived with his wife some 15 days after the marriage, without contending fear or duress during this period, and concludes that under Civil Code Article 111 and Thompson v. Thompson, 148 La. 499, 87 So. 250 (1921) the marriage cannot be annulled and therefore Article 90 is applicable. Thus, although the majority indicates it is not called upon to decide plaintiff’s claim for annulment, the fact is that by its holding it has decided the question.

I strongly opine that such is not the factual situation for application of the exception of no cause of action. The action for disavowal and the question of the right to annulment of the marriage must be separated insofar as determining whether the exception herein should be maintained,

It is an established jurisprudential rule that in trying an exception of no cause of action, the allegations of the petition must be construed most favorably to the plaintiff’s cause of action, with all doubts being resolved in favor of the sufficiency of the petition. Geiger v. State, Department of Institutions, 242 So.2d 606 (La.App. 1st Cir. 1970).

For these reasons I would reverse the district court judgment and overrule the exception of no cause of action.

Alternatively, assuming arguendo plaintiff has failed to state a cause of action, nevertheless, this does not mean he does not have a cause of action. I feel that the instant suit presents a case where it is mandatory upon the trial judge to permit amendment (as sought by the plaintiff) of the insufficient allegations since grounds of the objections pleaded by the exception (and relied upon by the majority) are of such a nature that they can be easily removed by amendment. LSA C.C.P. Art. 934; Woodfork v. Sanders, 248 So.2d 419, writ denied, 259 La. 759, 252 So.2d 455; Garlington v. Kingsley, 277 So.2d 183, reversed on other grounds, 289 So.2d 88 (La.1974).

As a further alternative in my opinion, the present case requires remand in the interest of justice. LSA C.C.P. Art, 2164. Succession of Delesdernier, 184 So.2d 37 (La.App. 4th Cir. 1966). Should plaintiff succeed in securing an annulment of his marriage in the suit alleged to be pending, the majority opinion herein precludes him from attempting to disavow a child who otherwise would have been presumed illegitimate, rather than legitimate.

For these reasons I respectfully dissent.

      . Although it is not relevant to the present appeal, the record also reflects a court order obtained by plaintiff for blood tests. The physician appointed reported to the court that the three parties to this proceeding all have the same type blood which does not exclude the possibility of plaintiff’s paternity.

      . The exception of no cause of action is to raise the question of whether any remedy is afforded by law; the exception of no right of action is to raise the question of whether a remedy afforded by law can be invoked by a particular plaintiff. Since the line of demarcation between the two is sometimes obscure, the general practice of attorneys is to plead them together; this is what our great teacher, Dean McMahon, spoke of as “a double-barrelled remedy”. McMahon, Louisiana Practice, West Publishing Company, pg. 460.

      . Plaintiff, in his brief to this court, indicates that suit is presently pending between he and his wife to annul the marriage.

      . Of course, under the peculiar facts of this case the question of the validity of the marriage must be determined prior to deciding the issue of disavowal. Proeedurally, I feel the action for disavowal should have been stayed pending outcome of the annulment action or the two proceedings consolidated.


author: BOLIN, Judge.

text:
    Dewey MERCER, d/b/a Mercer Home Care Service, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 12654.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.

      Cook, Clark, Egan, Yancey & King, by Edwin L. Blewer, Jr., Shreveport, for plainti f f-appellant.
    Mayer, Smith & Roberts, by Paul R. Mayer, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and DENNIS, JJ-
   BOLIN, Judge.

Plaintiff, Dewey Mercer, sued St. Paul Fire and Marine Insurance Company, seeking to recover the face amount of a $50,000 fire insurance policy. The insurance company calculated its liability under the policy to be $7,052.47, inclusive of interest and court' costs, and deposited this amount into the registry of court. Without assigning written reasons the district judge rendered judgment in favor of plaintiff in the amount tendered by the insurance company. Plaintiff appeals seeking an increase in the amount of the judgment. We modify the lower court’s judgment by increasing the award to $18,775.68.

The insurance policy in question insured the contents of a warehouse against loss by fire. The contents of the warehouse consisted of two different lots of merchandise purchased by Mercer as salvage following two different fires. One lot comprised of aluminum siding and related materials was purchased by Mercer after a warehouse fire in Houston, Texas. The second lot consisted of office furniture and equipment purchased after a fire at a M. L. Bath Company warehouse located in Shreveport. Mercer placed both lots of goods in a warehouse which he had rented in Shreveport. This warehouse and its contents were totally destroyed by fire of unknown origin on January 1, 1969.

This- case involves two problems. One relates to the determination of the amount of merchandise in the Mercer warehouse when it was destroyed by fire. The second problem is deciding the “actual cash value” of the goods destroyed, which includes the thorny question of the actual cash value of goods purchased as salvage after a fire.

Mercer is the owner of a small home-improvement business engaged in putting aluminum siding on houses. Plaintiff’s practice prior to July of 1967 was to buy siding only as needed for a particular job rather than to keep a running inventory of siding. In July of 1967, plaintiff was in Houston purchasing material for a job in Neder-land, Texas, and while there he learned of a fire which had burned an aluminum siding manufacturer’s outlet warehouse. After inspecting the fire-damaged goods, Mercer decided to purchase a large amount of usable siding. Being unable to raise the cash for the purchase, he contacted Kelly Womack, owner of an aluminum siding supply store in Shreveport, to determine if Womack would provide the financing. Womack agreed and the two men entered into a joint venture to purchase the siding. Womack was to furnish the money for the venture and Mercer was to be the working partner.

The two men purchased the entire contents of the Houston warehouse for $2600. Mercer salvaged 1204 squares of usable aluminum siding and a large amount of related materials, such as gutters, nails, touch-up paint, etc., all of which he sent to Shreveport. He sold the rest of the material as scrap to several Houston junk dealers for $6000.

Under the working agreement between Womack and Mercer, Womack would first recoup his initial outlay of funds used to purchase the salvage, clean the warehouse in Houston, transfer the salvage to Shreveport, and rent warehouse space in Shreveport. After these expenses were satisfied the two men agreed to share equally in the proceeds from the venture. As Mercer withdrew the siding from the warehouse to be used on a particular job, Womack would bill him at the regular wholesale price for the siding. Mercer would then remit only half of the bill in payment since the two men were co-owners of the siding.

This arrangement lasted until October 31, 1967, when Womack sold his interest in the Houston salvage to Mercer for $3500. At that time approximately 1100 squares of siding remained from the original 1204 squares. Womack testified he sold his interest at this low price for a variety of reasons: (1) some of Womack’s wholesale customers felt there was a conflict of interest since Womack was, in effect, in direct competition with them; (2) the siding that was purchased in Houston was colored siding and Womack testified he did not carry any colored siding in his stock because the demand for white aluminum siding was nine times greater than the demand for colored siding; (3) Womack had more than doubled his original investment in less than four months.

The second lot of goods, consisting of office furniture and equipment, was purchased by Mercer as salvage from a fire at M. L. Bath’s warehouse in Shreveport on November 5, 1968. He paid $2500 for the entire contents of this warehouse and moved as much of the least damaged material as he could into his rented warehouse. The remainder of the goods was moved to another Bath warehouse or was left at the Bath warehouse which had burned. Mercer’s rented warehouse now contained the aluminum siding salvaged from the Houston fire and the office furniture and equipment salvaged from the Bath fire. On January 1, 1969 the building and its contents were totally destroyed by fire. At that time approximately one-third of the warehouse was occupied by the siding and the remaining two-thirds by the furniture.

We now turn to the problem of determining the amount of goods that was actually in Mercer’s rented warehouse at the time of the fire. Plaintiff did not keep an inventory of the material in his warehouse. The inventories he prepared in connection with this suit were all done from memory and from inspection of the remains after the fire. As to the Houston salvage, the only dispute is as to the number of squares of siding in the warehouse at the time of the fire, which Mercer calculated at 810 squares. He offered no proof of this other than his own estimate. An insurance adjuster figured there were approximately 585 squares of siding in the warehouse at the time of the fire. This figure was based on entries in a small notebook apparently belonging to Mercer, showing monthly withdrawals of siding from the warehouse from September of 1967 thrdugh May of 1968. The adjuster averaged the withdrawals over that nine-month period and projected withdrawals at the average rate up until January 1, 1969, which resulted in a figure of 585 squares in the warehouse at the time of the fire. The trial judge apparently felt, as we do, that plaintiff failed to prove by a preponderance of evidence the warehouse contained 810 squares of siding; rather, the evidence supports a finding it contained approximately 585 squares at the time of the fire.

Mercer arrived at an inventory of office supplies and equipment by taking Bath’s partial inventory of its warehouse and marking off those items that were still at the site of the Bath fire or were at the other Bath warehouse. The insurance adjuster followed much the same procedure and decided that the Mercer warehouse contained approximately 70% of the furniture and equipment plaintiff had purchased after the Bath fire.

The next question concerns the value to be placed on the goods that were destroyed by the fire. The insurance policy covered “warehouse contents, consisting principally of aluminum siding and office furniture to the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, . . . . ”

We are presented here with a novel question. How does one find the “actual cash value” of goods purchased as salvage after a fire? It is readily apparent there is no easily ascertainable market value or replacement value for such goods. Each lot of fire-damaged goods is unique since no two fires are the same; no two sets of goods damaged by fire are the same; and no two pieces of furniture in the same fire will be damaged to the same degree.

An annotation in 61 A.L.R.2d 711 considers the meaning of the “actual cash value” clause as it is used in insurance contracts. A summary of the annotation, appearing at page 713, states:

“Where property is of such nature that its market value can be readily determined, market value has frequently been applied as the test or criterion of actual cash value of property at the time of loss, under policies insuring to that extent. In a few cases, the courts although recognizing that the market value test would ordinarily be applicable, have refused to apply it where, under the existing circumstances, this test of actual cash value would fail to properly indemnify the insured. Another test or criterion, which has been employed in a great number of cases to ascertain the actual cash value of the insured’s property at the time of loss, is the replacement or reproduction cost of the property lost.
“In recent years, a number of courts, seeking to effectuate more complete indemnity, have adopted a third method, the broad evidence rule, to determine actual cash value of property at the time of loss. Under this rule, the trier of facts may consider any evidence logically tending to the formation of a correct estimate of the value of the insured property at the time of loss.
“Generally, it may be said that the proper test or criterion of actual cash value in a particular case depends upon the nature of the property insured, its condition, and other circumstances existing at the time of loss.”

We are unable to cite any Louisiana cases directly on point. In Bogalusa Gin & Warehouse v. Western Assurance Co., 199 La. 715, 6 So.2d 740 (1942), the court determined the actual cash value of a building destroyed in a windstorm. The court stated:

“. . .In arriving at the amount the plaintiff is entitled to recover, we must necessarily take into consideration all of the facts, viz., the price paid for the buildings, the estimate of their value made by the defendants’ agent at the time the policies were issued, the policies themselves, the terms of the policies and the cost of replacement . . . .”

In Hinson v. British America Assurance Co., 43 F.Supp. 951 (W.D.La.1942) the court was faced with the difficult problem of determining the value of bakery equipment destroyed by fire. In Hinson we note the following language:

“. . . In addition to these troubles, some of the articles were practically new because the Hinsons themselves had bought them since their location at Lees-ville; but some of the articles, which they bought secondhand from Mansinger, are as old as fifteen years, with varying degrees of use. Then, again, some of the articles bought by the Hinsons since their coming to Leesville were bought secondhand but in excellent condition and at relatively low prices. The defendant, on these latter purchases, wishes to hold the recovery of the plaintiffs to the actual prices paid; we believe the sound value to be the fair gauge of worth.”

In Reliance Insurance Company v. Board of Supervisors, La. St. U. & A&M C., 255 F.Supp. 915 (E.D.La.1966), the goods destroyed by fire were books and musical instruments. In arriving at the actual cash value of the goods, the court stated:

“The Standard Fire Policy in Louisiana, as described in LSA-R.S. 22:691, provides that the policy covers the property of the insured to the extent of the actual cash value of the property at the time of loss but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss. Thus, although replacement cost is not the sole criteria by which to-measure the amount of loss, it is one factor that the Court may consider in arriving at actual cash value. Bogalusa Gin & Warehouse v. Western Assur. Co., 199 La. 715, 6 So.2d 740 (1942); Roberts v. Houston Fire & Cas. Co., 168 So.2d 457 (La.App. 3 Cir., 1964); Williams v. Gallagher Transfer & Storage Co., 170 La. 461, 128 So. 277 (1930); McGuire v. State Farm Fire & Cas. Co., 175 So.2d 838 (La.App. 3 Cir. 1965).
“Thus, taking into consideration the original cost, possible appreciation and depreciation, nature of the property involved, and current replacement cost, the Court determines, as a matter of law, that plaintiffs are liable to intervenor, Professor L. Bruce Jones, for the total sum of $26,644.55, . . . .”

The insurance company’s approach to the valuation of both sets of goods is to multiply the percentage of such goods remaining in the warehouse by the price Mercer paid for each lot of goods purchased as salvage. We find this would not represent the “actual cash value” of the goods in this particular case. Purchasing goods as salvage after a fire is necessarily a speculative undertaking. The buyer hopes he will be able to salvage goods that are worth more than what he paid for them as salvage. In this case, the record clearly reflects both purchases by plaintiff were exceptional bargains. While the price Mercer paid for the goods as salvage is evidence which must be considered in fixing the “actual cash value” of the contents of the warehouse, it is by no means the only evidence the court should consider. The court must of necessity in a case such as this examine all the evidence relating to the value of the property at the time of the fire. The touchstone for the court in determining actual cash value is the basic principle that an adequately insured person should incur neither economic gain nor loss when his property is destroyed by fire. This principle applies subject to the terms of the particular contract of insurance which places a limit on the company’s liability to not exceed “the amount which it would cost to repair or replace the property with material of like kind and quality.” Of course, the burden is on plaintiff to prove the extent of his loss by a preponderance of the evidence.

The valuation problem revolves around two groups of goods. One is the salvaged aluminum siding and the other is the office furniture. The other goods in the warehouse consisted of miscellaneous supplies and equipment used by plaintiff in his aluminum siding business. Plaintiff offered no proof other than his own estimate as to their quantity and value, which proof we find insufficient. We accept the adjuster’s testimony as to their value, as follows:

Roof coating material $ 750.00
New Siding 1,500.00
Guttering, downspouts, windows and screens 2,000.00
Comer posts and columns 500.00
Tools and equipment 250.00
$5,000.00

We turn now to the valuation of the aluminum siding which we have previously found to be 585 squares or 48^% of the original 1204 squares purchased in Houston. The adjuster multiplied $3600 (the original purchase price of $2600 plus $1000 transportation expense) by 48l/á% and arrived at a figure of $1,746 as the actual cash value of the siding. Mercer argues the actual cash value should be the price it would cost to purchase the siding from a wholesaler such as Womack, minus 10% for fire damage. This computation results in a figure of $13,425.75. Womack testified he sold his one-half interest in the siding, or 550 squares, for $3500, representing a price of $6.36 per square. Multiplying $6.36 by 585 results in a figure of $3720.60, which we find to be a just amount. To award more would be indulging in sheer speculation.

We turn next to the value to be placed on the office furniture. An employee of Bath testified the furniture was damaged to such an extent it was more economical to purchase new merchandise than repair the damaged furniture. The insurance company adjuster estimated 70% of the furniture purchased from Bath was in Mercer’s warehouse at the time of the fire. He multiplied $2500 (the price paid for the furniture) by 70% and arrived at a figure of $1750 as the actual cash value of the merchandise. Mercer argues he is entitled to $24,794.04, which was the cost to Bath of a portion of the furniture salvaged by Mercer.

A local auctioneer with 17 years experience in buying and auctioning merchandise of every description, testified the office furniture in Mercer’s warehouse would bring between $25,000 and $40,000 at auction. He made an offer to buy the furniture from plaintiff for $12,500 and testified he might have gone as high as $15,000. From our review of the evidence, we feel that $12,500 represents the actual cash value of the office furniture.

To recapitulate, we find the actual cash value of the items in the warehouse at the time of the fire was:

Miscellaneous items $ 5,000.00
Aluminum Siding 3,720.60
Office furniture 12,500.00
Total $21,220.60

After subtracting the $2,344.92 Mercer received by selling the remains of his goods after the fire as scrap, we find the actual cash value of the contents of the warehouse was $18,875.68. From this amount we subtract $100, the deductible portion under the insurance policy.

The judgment of the lower court is amended to increase the award to plaintiff from $7,052.47 to $18,775.68, and to cast "St. Paul Fire and Marine Insurance Company with all costs. As thus amended, the judgment is affirmed.


author: PER CURIAM.

text:
    Succession of Mrs. Tomasa Giglio Caravella, widow of Nicolo PETROLIA.
    No. 7210.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Nov. 14, 1975.
    Corwin B. Reed, Forrest L. Bethay, New Orleans, La., for plaintiff-appellee.
    Albert B. Koorie, New Orleans, for defendant-appellee.
    Jacob J. Meyer, New Orleans, for defendant-appellant.
   PER CURIAM.

Appellants’ memorandum in support of their application for rehearing contends that Article 2087 of the Louisiana Code of Civil Procedure is unconstitutional and that our “strict and harsh” following of the Code has caused “absurd results” which are contrary to common sense.

However, appellants do not take issue with the undisputed facts which require that the dismissal be sustained and their forceful application for rehearing be denied. The facts are that appellants have not fulfilled the requirements that must be met when perfecting an appeal. Responsibility for their fulfillment cannot be transferred to deputy clerks of court or the United States Mail by contentions of unconstitutionality.

Application denied.

      . The memorandum cites both the United States Constitution (Fifth Amendment) and the Louisiana Constitution of 1974 (Article 1, Section 2)


author: AYRES, Judge. DENNIS, Judge MARVIN, Judge.

text:
    Robert Earl MAGNESS, Plaintiff-Appellee, v. CADDO PARISH POLICE JURY, Defendant-Appellant.
    No. 12562.
    Court of Appeal of Louisiana, Second Circuit.
    April 1, 1975.
    On Rehearing Sept. 3, 1975.

      John A. Richardson, Dist. Atty., Lawrence M. Johnson, Asst. Dist. Atty., Shreveport, for defendant-appellant.
    Hal V. Lyons, Shreveport, for plantiff-appellee.
    Before AYRES, BOLIN, and DENNIS, JJ-
   AYRES, Judge.

By this action plaintiff seeks, through injunctive process, to maintain the status quo of a noncomforming use of a described ten-acre tract of land as a motor-home park. Plaintiff’s position is that when he acquired the property in 1970 and began its improvement as a motor-home park there was no applicable zoning ordinance affecting the property.

In reconvention, defendant contends that plaintiff’s property, now located within a distance of five miles of the corporate boundary of the City of Shreveport, is subject to a comprehensive zoning ordinance and that under its provisions the property is classified as “R-A,” that is, “Residential-Agricultural.” On a basis of this contention defendant seeks, also by injunctive relief, compliance on the part of plaintiff with the provisions of the aforesaid ordinance.

After trial of this cause upon its merits, the court concluded that plaintiff had established his nonconforming use of the property and consequently rendered judgment in plaintiff’s favor enjoining and prohibiting defendant from restraining plaintiff from its aforesaid use. From the judgment thus rendered and signed, defendant prosecutes this appeal.

It is defendant’s contention on this appeal that by ordinance effective March 29, 1972, plaintiff’s property theretofore lying outside the boundaries of the five-mile area over which the Metropolitan Planning Commission had authority was extended to include this property within the zoning area, and that, under the terms of the zoning ordinance, in order for a structure to acquire and maintain a nonconforming use status, it was necessary that the construction thereof must have commenced prior to the extension of the zoning limits and should have been completed within two years of the extension of the limits.

The defenses are (1) that the improvements contemplated by plaintiff were not begun prior to March 29, 1972, the effective date of the ordinance extending the boundaries of the area over which the Planning Commission had jurisdiction, and (2) that the improvements were not completed within the prescribed two-year period, that is, on or before March 29, 1974.

Pertinent facts established in the record may be first briefly reviewed. The property was acquired by plaintiff in 1970 for the purpose of developing a motor-home park. This was prior to the extension of the Metropolitan Planning Commission’s authority over the property. Soon after acquisition of the property, plaintiff, during the year 1970, began and pursued the construction of the improvements thereon which culminated in the construction of the motor-home park. A site was cleared for the construction; plans were drawn; water wells were drilled; and spaces for two or three trailer homes were made available, serviced with electricity and by septic tanks for sewage disposal. Although the work was intermittent and somewhat spasmodic, dependent upon plaintiff’s ability, and delayed because of his illness, all of the above was accomplished prior to March 29, 1972, the date the zoning ordinance became effective as to plaintiff’s property.

The record further discloses that in the meantime provision had been made for the connection of plaintiff’s sewer line with that of an adjoining motor-home park. The connection had not been made by the time of trial due to the delay in the completion' of the neighboring oxidation or disposal plant which awaited approval by the appropriate health authority. Nevertheless, on plaintiff’s tract, underground pipe for sewerage and water lines was laid and water meters installed, all of sufficient capacity to serve many motor-park homes. Electrical service was assured and available, but not installed on an individual basis until needed. Three mobile homes were located on the property prior to the expiration of the two-year period, that is, prior to March 29, 1974. These, for sewage disposal, were served by the use of septic tanks.

Hugh D. Wells, a representative of the Metropolitan Planning Commission, testified from proof furnished him that plaintiff’s construction had begun before the effective date of the zoning ordinance. Such finding is corroborated by the details of the construction to which we have referred.

The question remains, however, as to whether the construction continued to completion within two years following the effective date of the ordinance. Construction continued during the next two years and the work and improvements were accomplished as related hereinabove. Defendant contends, as heretofore noted, that the improvements had to be completed within the two-year period following the effective date of the zoning ordinance. Wells was questioned as to the criteria for determining “completion of construction.” His answer was “minimum compliance — minimum facilities.”

Completion of an improvement of the character undertaken here is relative. When more tenants arrive and seek to rent space for their mobile homes, more driveways and other facilities are provided. Completion, therefore, is a relative term. Constant expansion and improvement are contemplated and undertaken as the facility grows and demands for its services increase.

With respect to neighboring mobile-home parks, the record shows they are not yet fully completed. A similar situation exists with respect to plaintiff’s project — expansion and improvement are contemplated. Plaintiff relies for compliance with the zoning ordinance upon a definition of a “trailer-court” contained in the zoning ordinance : “Any premises used or set apart for the purpose of supplying to the public parking space for one or more trailer coaches for living and sleeping purposes...."

The record leaves no doubt as to plaintiff’s substantial compliance with the requirements of the ordinance. Spaces were provided for and actually used by two or three mobile-home occupants. They were provided with electricity, water, and provisions for sewage disposal through underground septic tanks.

In this connection it appears appropriate to observe that the two or three other motor-home parks with respect to which evidence was given have, under similar circumstances, been accepted and treated by the Commission as completed within the terms of the ordinance. No other view would permit the extension, expansion, or improvement of mobile-home parks so as to accommodate the public to the evergrowing need or increase for such services. We are not impressed that it was the intention of the zoning ordinance to prohibit an extension, expansion, or improvement of services.

The trial court held that plaintiff had met the minimum requirements for the establishment of a mobile-home park. With this conclusion, we are in accord. The principle is well established in this State that zoning ordinances are in derogation of the rights of private ownership and, as they curtail and limit the use of property, they are to be strictly construed in favor of the property owner or possessor. Where exemptions appear they are to be most liberally construed in the property owner’s favor. City of Crowley v. Prejean, 173 So.2d 832 (La.App., 3d Cir., 1965); Roberts v. Jefferson Parish Council, 235 So.2d 131 (La.App., 4th Cir., 1970).

In the City of Crowley v. Prejean, supra, Judge Tate, author of the majority opinion, now an associate justice of the Supreme Court, stated in substance that a rule forbidding the enlargement or extension of a nonconforming use, with respect to zoning ordinances, does not prevent an increase in the amount of use within the same area, so that a nonconforming use may not only be continued but also increased in volume and intensity, and that a nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance. It was accordingly held that a nonconforming use permissible under a zoning enactment is not limited to the extent of such prior use on which the nonconforming status of the land is based and the owner of the nonconforming tract is thus ordinarily entitled to increase the amount and extent of such use within the nonconforming tract, unless the zoning regulation provides otherwise.

In the cited case, it was held that where a nonconforming use resulted from the rental of a residential tract for one house trailer, the nonconforming status of the tract entitled the landowners to operate a trailer court not limited to a single house trailer but that the landowner was entitled to increase the extent of the nonconforming use within the nonconforming tract to rental space for two or more house trailers.

The instant case, in our opinion, is subject to and is governed by the aforesaid principles enunciated in the City of Crowley case. See the authorities therein cited.

For the reasons assigned, we find no error in the judgment appealed. It is accordingly affirmed at such costs as are assessable against the defendant.

Affirmed.

DENNIS, J., dissents and assigns written reasons.

DENNIS, Judge

(dissenting) :

I respectfully dissent.

The zoning ordinance at issue contains a very liberal provision benefiting landowners who, on the effective date of the ordinance, were in the process of constructing improvements which would constitute prohibited usages under the ordinance. In essence, it provides a grace period within which the landowner may perfect a nonconforming use of his property by completing the “entire structure” within two years after the ordinance’s effective date.

Other sections of the ordinance provide that a nonconforming use may not be extended throughout a structure, if “structural alterations” are made as a consequence thereof; that a “structure” is anything constructed or erected which requires a location on the ground or is attached to something on the ground, except utility poles and fences; and that a “trailer court” is a premises supplying parking space for trailers for “living and sleeping purposes”, and includes any buildings, structures, vehicles, or enclosure used or intended for use as a part of the equipment of such trailer camp or court.

As I view the evidence, Magness, who admittedly proceeded at a “leisurely” pace, failed to locate on the property sufficient “structures” for the parking of more than 3 trailers for “living and sleeping purposes”, i. e., having the necessary facilities for inhabitation, within the two year grace period. At the end of this time he had laid a workable main water line on the property attached to one meter. He had laid an inoperative main sewer line which had never been used because he planned to tie. into a neighboring sewer system that had not yet been approved by the department of health. He had not run feeder lines from, the main electric, water and sewer lines to individual trailer parking spaces. In fact, outside of tying 3 trailers onto the electric and water lines, and providing them with septic tank service, he had not completed any inhabitable trailer spaces on the property. In order to do so, he will have to tie in the main sewer line in accordance with his plan, which is dependent on a neighbor’s consent and department of health approval, construct improved roads, grade parking spaces, lay feeder lines to the main sewer and water pipes, attach individual meters, and install individual electric poles and lines. All of this will clearly require the erection, construction and location of additional “structures” on the property or “structural alterations” of existing improvements. Thus, the “entire structure” which Magness completed within the grace period consisted of 3 inhabitable trailer parking spaces. According to a drawing of the proposed trailer park introduced by Magness he contemplates adding structures and improvements to accommodate Si additional usable trailer parking spaces. Thus it is clear that he has not even made “substantial compliance with the requirements of the ordinance”, as stated by the majority opinion, because the ordinance states that the “entire structure shall be completed” within the grace period.

The instant case is clearly distinguishable from City of Crowley v. Prejean, 173 So.2d 832 (La.App., 3d Cir. 1965) cited in the majority opinion. In that case the landowner established as a nonconforming use before the effective date of the ordinance four fully inhabitable trailer spaces with complete utility services. No additional construction was required beyond the crucial date and the full extent of the trailer park was well defined at that time. The court held that renting one of the spaces for the first time after the effective date of the ordinance was not an untimely attempt to establish a nonconforming use but merely an enhancement of the usage established before the effective date. The court clearly did not hold, as the majority opinion seems to say, that the owner could complete additional inhabitable trailer spaces after the effective date of the ordinance. In the present case Magness established but 3 inhabitable trailer spaces with complete utility services within the two year grace period following the effective date of the ordinance. Unlike the owner in the City of Crowley case, Magness is not merely seeking to rent one of the three completed trailer spaces, he intends to engage in extensive construction to establish many additional usable trailer spaces. Under the majority ruling he will be allowed to expand the magnitude of a nonconforming usage enormously over an indefinite period of time after the effective date of the ordinance. This result is contrary to the holding in the City of Crowley case and other jurisprudence. Id. at page 835.

The majority opinion is more than a strict construction of a zoning ordinance against a governing, authority. By too leniently interpreting a liberal exemption, the court may have rendered the ordinance nugatory as to all construction commenced prior to its effective date. Nor would a correct application of the ordinance force a harsh result in this case. Magness had ample time to complete structures for more than 3 inhabitable trailer spaces. The evidence leaves a resulting impression that Magness did not utilize the two year grace period with reasonable diligence and has completely disregarded his obligation to perfect a nonconforming use in accordance with the law. Also, under the ordinance, he may apply for a rezoning of his property to allow more trailer spaces to be completed. The evidence indicates that the property of the neighbor whose sewer system he plans to utilize has recently been rezoned for trailer parking. The zoning ordinance should have been enforced by restricting the nonconforming use to that established within the grace period granted by the local government.

If the trial court judgment is affirmed it should be amended to clarify the extent of the trailer court Magness will be allowed to build. The judgment enjoins the governing authority from “restraining plaintiff, Robert Earl Magness, from the use of his property. . . .” Literally interpreted, this could allow him to build more than one trailer park or even engage in other prohibited usages on the property. The judgment should be reformed to allow Magness to finish only the proposed trailer park which the majority has found was “substantially” completed within the two year period following the effective date of the ordinance.

Before BOLIN, PRICE, HALL, DENNIS, and MARVIN, JJ.

ON REHEARING

MARVIN, Judge.

A rehearing was granted on the application of Police Jury, Defendant-Appellant. The jury contends that this court was in error in holding that the landowner had “substantially complied” with the requirements of the zoning ordinance. We deem it appropriate to clarify in what context this statement was made.

Exhibit P-4 consists only of three pages (pp. 4, 60 and 64) of the zoning ordinance in question. Obviously the ordinance is of greater length and is much more comprehensive in dealing with problems of land use than is reflected in the limited provisions which are in evidence before this court.

“Trailer-Court” is defined on page 4 as:

“Any premises used or set apart for the purpose of supplying to the public parking space for one or more trailer coaches for living and sleeping purposes, and which include any buildings, structures, vehicles, or enclosure used or intended for use as a part of the equipment of such trailer camp or court.”

On the same page “Structure” is defined as:

“Anything constructed or erected which requires location on the ground or attached to something having a location on the ground; provided, however, that utility poles and fences and walls (other than building walls) shall not be considered to be structures.”

On page 60 of this exhibit there are provisions relating to the “Continuance of Nonconforming Uses” (paragraph B-l) and to the “Extension of Nonconforming Uses in Structures” (paragraph B-2). While paragraph B-l states that a nonconforming use may be “continued”, a proviso in this paragraph prohibits an “increase” in the number of “dwelling units” of a nonconforming dwelling use.

On page 64 of this exhibit there is a provision which requires the “construction” of a “structure” to be “completed” within two years after the effective date of the ordinance. This provision is the source of the two-year period mentioned in the original opinion.

In construing these limited provisions of the zoning ordinance we are bound by the rules of strict construction against provisions which are in derogation of the rights of private ownership and liberal construction as to exemptions favoring the landowner. These principles and supporting authorities are set forth in our original opinion.

Appellant would have us construe a trailer court as a “dwelling unit” and as a “structure”. The definition of trailer court is couched in terms of parking spaces for trailers used for living and sleeping purposes. A trailer court is not a dwelling unit but a “parking space” for a trailer for living and sleeping purposes by the limited definition of the ordinance. We are not favored with the definition of dwelling unit, if there be one in the ordinance. A trailer, as distinguished from a trailer court, may be a dwelling unit while the trailer court itself provides parking spaces for trailers used for living and sleeping.

The definitions also establish that a “trailer court” and a “structure” are separate and distinct things. The ordinance contemplates that a trailer court might “in-elude” a structure “intended for use as a part of the equipment of the trailer court...."

The definition of trailer court does not set forth what requirements, if any, must be met for a tract of land to acquire status as a nonconforming use as a trailer court. Some ordinances may require such things as operable utility and sewer systems within a specified distance of each trailer parking space in order for k tract of land to acquire legal status as a trailer court. The record in this case does not provide us with such requirements and this court cannot supply them. We can consider only those portions of an ordinance which are in the record or which we may judicially notice under circumstances permitted by law. See R.S. 13:3712(B) and Boles v. Fireman’s Fund American Insurance Company, 250 So.2d 529, La.App.2d Cir. 1971.

This landowner acquired the 10-acre tract in 1970. In 1972, the authority of the ordinance was extended to encompass this tract. Between the time he acquired it and the time suit was filed in 1974 the landowner performed some work on the tract to create a “trailer court” within the definition of the ordinance and establish a nonconforming use. The work which was done was generally summarized in our original opinion as facts “established by the record”. We are not persuaded that our original recitation of facts was in error. Our conclusions drawn from those facts are set forth in this opinion on rehearing.

What we intended to hold originally as to “substantial compliance” and what we now hold is that this landowner, within the contemplation of the definition in- the ordinance, “used” a portion of his premises as parking spaces for one or more trailers (actually three trailers) and that he “set aside” the remaining portion of his premises for parking space for 48 more trailers.

The lower court in its “Reasons for Judgment” held that the landowner was entitled to enjoin the Police Jury from interfering with his operation of a trailer court on the tract involved. It was our intention to affirm this holding as the judgment of this court.

The judgment below as originally affirmed however, was broader than this holding in that it enjoined the Police Jury from interfering with the landowner’s use of the land without restricting that use to a trailer court as defined by the ordinance. Our original opinion is modified to limit the judgment below as is herein provided.

Also in our original opinion several principles from City of Crowley v. Prejean, 173 So.2d 832 (La.App.3rd Cir., 1965) and Roberts v. Jefferson Parish Council, 235 So.2d 131 (La.App.4th Cir., 1970) were held to “govern” in this appeal. This statement requires clarification.

The principles are well established in this State that zoning ordinances are in derogation of the rights of private ownership and, as they curtail and limit the use of property, they are to be strictly construed in favor of the landowner. Where exemptions appear they are to be most liberally construed in the landowner’s favor. These principles are applicable here.

From Prejean our original opinion quoted principles relating to what extent the landowner of a tract established as a nonconforming use might increase or enlarge within the tract the nonconforming use. The principles are sound, but are unnecessary to our holding that the landowner, plaintiff-appellant herein, has established a nonconforming use of his tract as a trailer court and is entitled to continue that use, that is supplying parking spaces to the public for trailers for living and sleeping purposes.

To what extent this landowner may or may not be required to obtain the approval of zoning authorities to further improve and extend existing utilities and other improvements for his operation of a trailer court as a nonconforming use on his tract of land is dependent upon factual and legal circumstances which are not present in this record.

We hold that the Police Jury is enjoined from interfering with the landowner’s supplying to the public, parking spaces for trailers for living and sleeping purposes on his 10-acre tract of land.

THE PLEA OF PRESCRIPTION

In this court the landowner filed a plea of prescription which we are required to consider. See La.C.C.P. Art. 2163. This plea is based on La.R.S. 9:5625 (A) which provides in part that all actions relative to alleged use violations of zoning ordinances must be brought within two years from the date the parish first had knowledge of the violation.

An employee of Metropolitan Planning Commission, referred to in our original opinion, did testify that the landowner contacted him in the employee’s office “in the spring of 1970” requesting a “letter to construct” a trailer park. As we view this testimony it was merely a declaration of the landowner’s intention. The next time the employee saw the landowner was in “November of 1973” when the landowner was informed of recent complaints by the neighbors of the landowner’s activities on the property.

A declaration of intention in 1970 was not a violation of the zoning ordinance. The property was not then subject to the ordinance. In this respect the landowner has not met his burden of establishing knowledge on the part of the parish more than two years prior to the institution of the action. The plea of prescription is overruled.

As modified in this opinion on rehearing, our original judgment is recast in part to read:

It is ordered, adjudged and decreed that the Caddo Parish Police Jury, its agents, employees and all other persons acting or claiming to act on its behalf, are restrained, enjoined and prohibited from interfering with Robert Earl Magness supplying parking spaces to the public for trailers for living and sleeping purposes on the 10-acre tract of land described in the original judgment of the lower court, as a non-conforming use in accordance with, but subject to the provisions of the Zoning Ordinance of Caddo Parish and other laws and ordinances and authorities to which such non-conforming use may be applicable.

As thus modified, our original judgment is reinstated.

DENNIS, J., dissents for the reasons originally assigned.


author: STOULIG, Judge. LEMMON, Judge GULOTTA, Judge BOUTALL, Judge REDMANN, Judge

text:
    Raymond A. MIX, Petitioner-Contestant, v. John BLANCHARD, Respondent-Contestee, and Orleans Parish Democratic Executive Committee, Nominal-Respondent.
    No. 7299.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 1975.
    Writ Refused Sept. 18, 1975.

      See also, La.App., 318 So.2d 130.
    James A. McPherson, New Orleans, for plainti f f-appellant.
    Okla Jones, II, Anthony W. Skidmore, New Orleans, John Blanchard, in pro per. for John Blanchard, defendant-appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT and BEER, JJ., and FRANK V. ZACCARIA, J. Pro Tem.
   STOULIG, Judge.

Plaintiff, Raymond A. Mix, a candidate for the office of representative from the 93rd Legislative District for the State of Louisiana, has appealed a judgment dismissing his suit challenging the eligibility of respondent John Blanchard, also a candidate for the same office. Plaintiff alleges Blanchard has no “actual domicile” in the 93rd District and therefore fails to meet one of the requisites for candidacy outlined in LSA-Const. Art. 3, § 4(A) (1974), which provides:

“An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the proceeding year in the legislative district from which he seeks election is eligible for membership in the legislature.”

Defendant filed qualifying papers giving his domicile as 4105 Melpomene Street, but plaintiff contends his “actual domicile” is 6109 Campus Boulevard (outside the 93rd District).

In support of his claim, plaintiff proved Blanchard:

1. bought a home at 6109 Campus Boulevard in 1969 and his wife (from whom he is neither separated nor divorced) and his three children have continuously lived there since its acquisition;
2. claimed a 1975 Homestead Exemption on the Campus Boulevard property;
3. has a listing in the New Orleans telephone directory at the Campus Boulevard address;
4. has no telephone listing registered in his name at the Melpomene qualifying address;
5. lists his “home address” as 6109 Campus Boulevard with the Custodian of Notarial Archives for Orleans Parish;
6. has utility meters in his name at the Campus Boulevard address; and
7. has registered at the Campus Boulevard address two automobiles used by his family.

Defendant does not challenge any of these proofs; however, he testified that it is his intent to maintain his domicile on Melpomene Street until the day he dies. He was born in this house and lived there until he left the New Orleans area for Chicago in the early 1960s. When he returned in 1966, he declared he reestablished his domicile with his wife and children on Melpomene Street and has voted continuously in this district since that time. When he moved his family to Campus Boulevard in 1969, he testified he left furniture at the Melpomene address and has continued to reserve for his personal use two rooms with a private entrance on one side of this double house. He further stated he sleeps in these quarters three or four nights a week and spends weekends “at home” with his family.

Despite defendant’s declarations of in-ord is considered in its entirety, the evi-Melpomene Street, his actions contradict his self-serving testimony. When the rec-tent to maintain a lifetime domicile at 4105 dence is overwhelming that Blanchard maintains his principal establishment on Campus Boulevard. LSA-C.C. art. 38 defines domicile this way :

Despite defendant’s declarations of intent to maintain a lifetime domicile at 4105 Melpomene Street, his actions contradict his self-serving testimony. When the record is considered in its entirety, the evidence is overwhelming that Blanchard maintains his principal establishment on Campus Boulevard. LSA-C.C. art. 38 defines domicile this way:

“The domicile of each citizen is in the parish wherein he has his principal establishment.
“The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”

The quoted article of the Constitution upon which plaintiff bases his challenge uses the terminology “actually domiciled.” As we view it, in light of the quoted definition the word actually serves to emphasize the residency aspect of domicile. It is interesting to note the dialogue among the delegates to the Constitutional Convention in drafting this article. It is apparent the delegates intended to limit candidacy for political office to citizens who actually live in the district they aspire to represent. The newly drafted constitutional article was designed to eliminate a system under which candidates would establish a “political domicile” from which to seek office even though they chose to live and maintain their families in another area, and were not truly representative of the district from which they sought election.

In our opinion the evidence clearly preponderates in favor of the factual conclusion that Blanchard’s domicile is located at 6109 Campus Boulevard where he maintains his wife and children and sleeps several nights each week. As a corollary to this conclusion we necessarily hold that 4105 Melpomene Street is another residence maintained for political purposes.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the trial court dismissing the petition of plaintiff-contestant Raymond A. Mix against the candidacy of respondent-contes-tee John Blanchard and against the defendant Orleans Parish Democratic Executive Committee be reversed.

It is further ordered and decreed that respondent-contestee John Blanchard is hereby declared to be ineligible to be a candidate for election as a member of the House of Representatives of the State of Louisiana representing the 93rd District of the State of Louisiana in the primary and general elections to be held in 1975.

It is further ordered and decreed that the Orleans Parish Democratic Executive Committee be and it is prohibited from certifying respondent-contestee John Blanchard to be qualified as a candidate for election as a member of the House of Representatives of the State of Louisiana representing the 93rd District of the State of Louisiana in the primary and general elections to be held in 1975.

Reversed and rendered.

REDMANN, LEMMON, GULOTTA and BOUTALL, JJ., dissent with written reasons.

MORIAL, J., recused.

LEMMON, Judge

(dissenting).

John Blanchard, like his mother before him, was born and raised at 4105-07 Melpomene Street in New Orleans, in a house built by his grandfather with his own hands. Blanchard, and later his wife and three children, lived there until he moved his family to Chicago in 1960.

Blanchard and his family moved back to New Orleans in 1965 and reestablished their domicile at the Melpomene Street family home, where his grandmother was still living. In 1969, because the immediate area had become blighted, Blanchard purchased another house on Campus Boulevard and moved his wife and children into that home. He remained on Melpomene Street, however, keeping two bedrooms for himself (and his oldest daughter, who stayed there with him for two years). He reconverted the remainder of the house into a double house, moving an elderly cousin and her husband into one side (where he used their kitchen and other facilities) and renting out the other side.

As to retained contacts with the Melpomene Street residence, Blanchard testified: He resides principally at Melpomene Street during the week, but regularly spends the weekends with his children on Campus Boulevard, occasionally spending additional time there during the week. He spends “(a)t least three and four nights a week” at Melpomene and goes to night school in the area. His mother and lifelong friends live in the neighborhood, he belongs to neighborhood civic, social and political organizations, his law office is in the legislative district, and he spends most of his time in the area.

On the other hand, he has no contacts with the Campus Boulevard area, except for his wife and children, and he stated he doubts if the neighbors in the area even know him.

A former co-worker in a legal program testified he picked Blanchard up “four or five days a week” for a period of about a year in about 1970 and 1971, and still picks him up there, the frequency not being specified. He also picked him up on Campus Boulevard “a time or two on Mondays”. He stated Blanchard opened a program office in the Melpomene neighborhood with the express intention of having it “close to his home.”

The determination of “actually domiciled” depends upon the facts and circumstances of each case. The trial judge apparently accepted the uncontradicted testimony of Blanchard and his co-worker and rendered judgment in his favor. The issue for our review is whether under the accepted facts Blanchard fulfilled the domiciliary requirements as a matter of law.

This is not a case of a candidate choosing a favorable district and attempting to establish a domicile there. Blanchard has been domiciled on Melpomene Street for most of his life and simply established a second residence in 1969, while retaining the original domicile. At times unsuspi-cious of political motives he established a course of conduct which he maintained over the last six years. Thus, after having been undisputedly domiciled at Melpomene Street from 1965 to 1969, his only change was to establish a second residence which the record shows he inhabits regularly only on weekends.

The contestant simply did not bear the burden of proving change of domicile. In fact, the evidence (apparently deemed credible) preponderates in favor of a conclusion that the Melpomene Street residence qualifies as Blanchard’s principal establishment within tffe contemplation of C. C. art. 38, and since he has over a long period of time consistently manifested his intention to retain this establishment as his domicile, the judgment of the trial court should be affirmed.

GULOTTA, Judge

(dissenting).

I dissent.

Where a person is “actually domiciled” is a factual determination. It is well settled in our jurisprudence that the burden of proof is upon the contestant to show by positive and satisfactory proof that Blanchard has changed his domicile from the Melpomene Street address to the Campus Boulevard address and that he has not been “actually domiciled” in the legislative district for a year preceding the date he seeks to qualify as a candidate for the legislature from that district. Plaintiff simply failed to successfully carry the burden.

Blanchard testified that he was born and reared at the Melpomene Street address; that he has voted from the Melpomene Street address; that upon his return from Chicago in 1965, he reestablished his residence on Melpomene Street. Plaintiff further testified that although he purchased the Campus Boulevard property, he did not intend, at any time, to change his domicile from Melpomene Street. Additional evidence of Blanchard’s actual domicle within the district is that he voted in the 93d District continuously from 1966 until the present and that his driver’s license bears the Melpomene Street address.

Of significance also is the uncontrovert-ed testimony of Charles James that on three or four days a week, he picked up Blanchard from the Melpomene Street address for the purpose of driving him to work and continued this pattern for several years. James further testified that he visited Blanchard at the Melpomene Street address on numerous occasions; that he had personal knowledge that Blanchard slept and dressed at that address.

Contrasting the positive testimony of Blanchard and James with the circumstantial and documentary evidence offered by plaintiff, I conclude that plaintiff failed to carry the burden of proof required to disqualify candidate Blanchard. Accordingly, I dissent.

BOUTALL, Judge

(dissenting).

I dissent for the reasons expressed by Lemmon, J. The uncontradicted testimony of the contestee and his witness is sufficient to overcome the somewhat circumstantial or indirect documentary evidence and support the decision of the trial judge.

REDMANN, Judge

(dissenting).

One in favor; then a four-to-four tie; now five-to-four against. Thus the judicial decisions on John M. Blanchard s eligibility; thus the closeness of the question.

The question has been decided by reversing the rules of C.C. 39. Now the husband’s domicile is declared, as a matter of law, to be that of his wife; the father’s, that of his minor children. All his desires, his interests in the old neighborhood, his behavior including spending the greater portion of time at his ancestral residence of birth and rearing, are worse than naught: they are a sinister plot to establish a political domicile — but not a domicile.

These theories are not strange to the language of the campaign trial, where perhaps anything goes. They are strange to the ancient and established legal concept of domicile.

Unless it has become impossible, as a matter of law, for a man to retain his domicile of origin while permitting his wife and children to live elsewhere, John M. Blanchard has done so.

For these and the reasons of the other dissents, the district judge’s judgment should be affirmed.

      . Clearly 6109 Campus Boulevard is the matrimonial domicile of Mr. and Mrs. Blanchard.

      . Thomas Casey, a member of the legislative committee, explained to the delegates why the word “domicile” was used rather than “residence.” We quote in part: “* * * The concept was advanced, and incidentally was adopted with only one dissenting vote, with the thought in mind that we would hope to avoid abuses by candidates for the legislature who attempt, or who rather actually reside or are legally domiciled in one area of a district or city or state or what have you, and through other means establish a residence in another legislative district. For instance, a person may have his home, have a homestead exemption, rear his children, and actually live in a home in one area of a city or a parish, and then have a business, let’s say a barroom, in another area, a different legislative district, and have a cot on the second floor and he might sleep on that cot once a week or twice a week, register to vote in that area where he has his business, and then run for election in that area; in an area where in fact he does not actually live with his family and is not actually domiciled. We have attempted to do this to prevent just that thing. A person who lives with his family in one area could theoretically have many, many residences, five or six, and therefore have the option, through these means, and I feel they could be devious means, to establish other residences merely for the purpose of running in a certain legislative district. That was the whole thinking behind this. * * * The word domicile is really where a person intends to have his main home, to rear his children, to register to vote, where he goes to church, where he associates with many of his friends and neighbors and things of that type, where his children may go to school. Various criteria such as that are things that the court looks at and not just how much time you might happen to spend in a particular residence, if you have more than one residence. * * * ” (Emphasis added.)

      . In re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1951), the Louisiana Supreme Court stated that a party seeking to show a change of domicile must overcome the presumption that it has not been changed by positive and satisfactory proof. In Succession of McElwee, 276 So.2d 391 (La.App., 2d Cir. 1973), the Second Circuit postulated the rule that the burden is upon a party endeavoring to avail himself of a change in domicile to prove the change beyond a reasonable doubt. See Succession of Simmons, 109 La. 1095, 34 So. 101 (1903); Kinder v. Scharff, 125 La. 594, 51 So. 654 (1910); First Nat. Bank v. Hinton, 123 La. 1018, 49 So. 692 (1909); Cannon v. Cannon, 242 So.2d 291 (La.App., 4th Cir. 1970).