author: DOMENGEAUX, Judge. PER CURIAM.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. James P. HOYT, Jr., et ux., Defendants-Appellants.
    No. 6361.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Rehearing Denied May 9, 1978.
    Writ Refused June 6, 1978.

      Ledbetter, Percy & Stubbs by William H. Ledbetter, Jr., Alexandria, for defendants-appellants.
    D. Ross Banister, Chester E. Martin, William W. Irwin, Jr., John H. Helm, Johnie E. Branch, Jr., by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is an expropriation suit brought under La.R.S. 48:441 et seq., the quick-taking statute, by the Department of Highways in connection with the expansion of U. S. Highway 167-71 in Rapides Parish.

Defendants, James P. Hoyt, Jr. and his wife, owned a 2.378 acre tract of land fronting on the old U. S. Highway 167-71 between Lecompte and Alexandria. The property was irregularly shaped, resembling an elongated trapezium. The two longer sides ran north to south approximately parallel to the existing highway. The side closest to the highway had highway frontage of about 1800 feet. The shorter sides ran east to west. On its southern boundary, the property had a depth of 145 feet; on the northern boundary, the property had a depth of 40 feet. The southern end of the property contained buildings and improvements related to the Ellis Truck Stop, operated by defendants’ lessee, George Ellis. Under the lease arrangement, Ellis paid $250.00 per month in rent and was supposed to purchase all oil, gasoline, and automotive products from Hoyt’s business, the Hoyt Oil Company, a petroleum products distributor. This resulted in monthly profits to Hoyt of approximately $2,000.00 to $2,500.00.

The land taken constituted 1.068 acres of the northern portion. It was roughly rectangular in shape, having highway frontage of about 1,150 feet, but a depth of only 40 feet. Although included in the lease arrangement, the portion taken did not include any buildings or 'structures. The only improvements existing on this section was a portion of a gravel driveway used as a deacceleration lane by vehicles approaching the truck stop and, possibly, for the temporary parking of home trailers in transit.

The property remaining after the taking consisted of 1.31 acres with highway frontage of about 650 feet. The depth of the remaining property on the southern side was unchanged at 145 feet; on the northern side it was 40 feet deep. The remaining tract contained all of the buildings and structures related to the truck stop.

The expropriation was necessitated by the Highway Department’s plan to convert the existing two-lane highway into a four-lane thoroughfare. This was to be accomplished by constructing an additional two-lane route for northbound traffic to the east of the existing highway. The existing highway was to be used exclusively for southbound traffic. In the area of the Hoyt property, the north- and southbound lanes were to be separated by a rather large tract of land, which was to remain in private ownership.

The taking occurred on February 13, 1973, and, pursuant to La.R.S. 48:441, et seq., the Highway Department deposited the sum of $855.00 for the property into the registry of the Court. An order of expropriation was signed.

After the taking, the matter was tried, and the trial court awarded an increase in the value of the part taken from $855.00 to $2,068.00. The Court further awarded expert witness fees of $600.00 for each of defendants’ experts plus $150.00 per day for court testimony. The trial court denied defendants’ claim for severance damages to the remaining property. A new trial was granted on defendants’ motion for the purpose of increasing the expert witness fees. The judgment was amended to increase these fees to $1,500.00 for each of defendants’ expert witnesses. Defendants have perfected a devolutive appeal. The Department of Highways has answered the appeal contending that the amount of expert witness fees is excessive.

The issues presented on appeal are: (1) Whether the amount of compensation awarded for the land is adequate; (2) Whether the trial judge erred in denying severance damages; and (3) Whether the amount fixed for expert witness fees is excessive.

I. AMOUNT OF COMPENSATION

Four appraisers testified at trial, and their reports were admitted into evidence by agreement. The State’s appraisers were M. C. Gehr and Gene N. Cope; the defendants’ appraisers were Hab Monsur and Darrell V. Willet, Sr. All of the appraisers used the comparable sales approach to value the land, and all thought that the highest and best use of the land was highway commercial. Their conclusions as to the value of the property, however, varied widely.

The trial judge accepted the appraisal made by Mr. Cope, who set neither the highest nor the lowest value on the property. Due to the unusual shape of the land, Cope determined that the fairest way to appraise the property would be to consider it as two segments, namely: (1) the usable southerly portion, which contained the truck stop itself as well as an area for reasonable expansion of the business, and (2) the northerly portion, which was completely undeveloped and of limited utility because of its shallow depth. Using comparable sales, Cope determined that the southerly portion of the property, comprising 1.4 acres, was worth $4,500.00 per acre; the northerly portion, comprising 0.978 acres, $1,700.00 per acre. He then found that 0.09 acres of the usable southerly portion was taken and affixed its value at $405.00 (0.09 acres X $4,500.00 per acre). The entire northerly portion was taken and its value was affixed at $1,663.00 (0.978 acres X $1,700.00 per acre). Thus, the total value of the land taken was $2,068.00.

We have reviewed the reports and testimony of all the experts in this case. Although defendants’ experts reached valuations higher than those of plaintiff’s experts, they utilized the front foot method which, considering the extreme shallowness of the subject property in this case, could have led to an unrealistic valuation of the land in question. On the other hand, Cope, who used an acreage approach, took into consideration the varying depths of the entire tract before the taking and designated varying amounts in relation to the depth of the property. We do not feel it was manifestly erroneous for the trial judge to have used the appraisal of Cope in reaching his conclusions as to the amount of compensation due.

II. SEVERANCE DAMAGES

Defendants contend that the trial judge was in error by not awarding severance damages. They argue that their property, which formerly enjoyed the passage of both north- and southbound traffic on U. S. Highway 167-71, will now enjoy only the passage of southbound traffic. They apparently maintain that this will result in a diminution in the value of the remaining property because it will no longer have the same degree of desirability as a truck stop.

The trial judge denied severance damages on two grounds, specifically: (1) a mere diversion of traffic does not give rise to severance damage as a matter of law, and (2) assuming arguendo that such damages could be awarded as a matter of law, defendants did not bear the burden of proof necessary to establish their claim. We disagree with the trial judge.

Louisiana courts have recognized that when the flow of traffic on an existing roadway is modified by the imposition of a median divider, the value of land fronting on the roadway may be reduced. Damages for this type of reduction in property value have been allowed against the Department of Highways where a portion of the property has been taken and it is shown that a median divider has limited access to the remaining property. State, Department of Highways v. Strickland, 290 So.2d 714 (La.App. 1st Cir. 1974), application denied, 295 So.2d 177 (La.1974); State, Department of Highways v. Carso, 261 So.2d 682 (La.App. 2nd Cir. 1972); State, Department of Highways v. Bagwell, 255 So.2d 852 (La.App. 2nd Cir. 1971), writ denied, 260 La. 456, 256 So.2d 442 (1972). If damages can be awarded where there is the imposition of a mere median divider, then a fortiori damages can be awarded where traffic travelling in opposite directions on the same highway is separated by property in private ownership.

We feel that the preponderance of evidence in this case shows that the value of the land remaining after the expropriation has been reduced by the highway improvement. We find the following evidence significant. The property was being used to operate a truck stop. Prior to the taking the truck stop was readily visible and had easy access to both north- and southbound lanes. After the taking there will be only limited visibility and access because the northbound lane will be separated by a large section of privately owned land. The truck trade constituted a large portion of the business. Hoyt testified that it was his experience, as a service station owner and supplier, that visibility and accessibility are crucial factors directly related to the success of such an operation. Mr. Ellis, the operator of the truck stop, indicated that he had inquired of several of his customers about their continued patronage and that they had expressed concern with regard to the difficulty of reaching his business. He also testified that the majority of his customers were northbound because southbound truckers did not want large quantities of fuel in their tanks when they reached the weight scale located in New Orleans. The tendency would be to fuel on the return trip after the vehicles were unloaded.

With regard to amount, we have only the opinions of Willet and Monsur, defendants’ appraisers. Willet was the only expert who analyzed severance damages in such a manner as to reach separate figures for those damages attributable to the loss of expansion potential onto the part taken and damages caused by the construction of a new northbound lane separated by private property. We feel that defendants have not proven a reduction in the value of the remaining property due to the loss of expansion potential. Accordingly there can be no damages for this item. However, severance damages are due for the division of north- and southbound lanes and the circuity of travel resulting therefrom. Using the dollar value of damages assigned by Willet, in relation to the value of the remaining property considered as part of the entire tract before the taking, we have determined that the percent decrease in the value of the remainder after the taking is 14.1%. Applying this figure to the dollar value assigned to the remainder after the taking by Cope, whose appraisal report was used by the trial judge, we find severance damages due in the amount of $6,920.98 (14.1% of $49,085.00). See State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973); State, Department of Highways v. Carso, supra; State, Department of Highways v. Schexnaidre, 247 So.2d 670 (La.App. 2nd Cir. 1971); State, Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969), writ refused 254 La. 14, 222 So.2d 67 (1969).

III. EXPERT WITNESS FEES

The trial judge originally awarded expert witness fees in the amount of $600.00 each. A new trial was granted on this issue and judgment was rendered awarding fees in the amount of $1,500.00 each.. We find that the trial judge was not manifestly erroneous in setting the fees at $1,500.00 each. The fixing of expert witness fees rests mainly within the sound discretion of the trial court. State, Department of Highways v. Smith, 272 So.2d 746 (La.App. 3rd Cir. 1972), writ denied, 272 So.2d 696 (La.1973).

For the above reasons the judgment of the district court is amended to increase the award of the landowners by $6,920.98, together with legal interest until paid. In all other respects, the judgment is affirmed. All costs allowed by law are assessed against the plaintiff-appellee.

AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

At footnote 1 of the opinión herein we stated, “The Department of Highways told their appraisers not to consider severance damages.” This statement may not be fully and technically accurate. As pointed out in the Department’s application for rehearing, its appraisers were instructed that “under present law severance damage, as a result of making a street one-way rather than two-way, was not compensable.” In any event, the Department’s appraisers were obviously of the impression that they were not to consider severance damage in this regard.

With these explanatory remarks, the application for rehearing is denied.

APPLICATION FOR REHEARING DENIED. '

      . The Department of Highways told their appraisers not to consider severance damages.


source: Caselaw Access Project

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

license: Public Domain

text:
    LATTER & BLUM, INC. v. The GRAND LODGE OF LOUISIANA.
    No. 8550.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Dissenting Opinion April 24, 1978.

      Edward J. McCloskey, McCloskey, Den-nery, Page & Hennesy, New Orleans, for Latter & Blum, Inc., plaintiff-appellant.
    Robert L. Kleinpeter, Baton Rouge, for The Grand Lodge of Louisiana, defendant-appellee.
    Before LEMMON, GULOTTA, BOU-TALL, STOULIG and THOMAS C. WICKER, JJ.
   BOUTALL, Judge.

Latter & Blum, Inc., a real estate broker, seeks recovery of a commission allegedly due under a listing agreement for a lease, contending that the owner breached that provision of the listing agreement stating: “Owner agrees to refer all prospects for the leasing of said property to Agent and Agent shall conduct all negotiations for the leasing of said property.”

Appellant’s sole contention is that Lonnie Blanchard, a Vice-President of International City Bank contacted the building manager of the Grand Lodge of Louisiana during the month of March, 1968, inquiring as to the availability of a lease, and that the building manager did not notify appellant of this contact before the listing expired on April 1, 1968. The trial judge found as one of the bases of his opinion that there was no contact during March, but that the contact took place in April, after the listing expired. Accordingly, he dismissed plaintiff’s suit.

We affirm for two reasons: First, there is ample evidence in the record to support the trial judge’s conclusion and there is no manifest error in this determination; second, under the factual situation in this case, even if the contact was made in March, there was no breach of contract.

The evidence in regard to the contact being made is primarily the testimony of Sheldon Hubbard, the owner’s building manager. He testified that the former building manager had a lengthy illness terminating in his death on February 2, 1968, leaving the records of his office in a confused state. Hubbard became the building manager in March, 1968 and admits that Blanchard contacted him inquiring about the premises. There is considerable confusion in his testimony as to whether he was contacted three times, two times, or only once by Blanchard and whether these contacts took place in March or in April. On direct examination his testimony would indicate two contacts before his inquiry into the existence of a listing agreement with appellant. His testimony on direct examination would indicate that the contact occurred in the first part of April and his inquiry showed that the listing agreement had already expired. In addition to his testimony there were offered some documentary evidence and testimony of other witnesses, some of the evidence favoring the appellant’s version and some the appel-lee’s version. Under these circumstances the trial judge is faced with an assessment of the credibility of the witnesses and the weight that should be assigned to the testimony of the witnesses and the relationship of the documents to that testimony. There is evidence presented which forms the basis of a reasonable conclusion in support of either proposition, and indeed, one could say that the evidence preponderates one way or another depending upon which testimony he chooses to believe. The trial judge gave detailed reasons for judgment and findings of fact. His judgment may not simply be supplanted by our opinion as to the weight and sufficiency of the evidence, but can only be overthrown when there is manifest error in his findings. This type of situation is the classic application of the rule that we should leave that judgment undisturbed absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Cote v. Krauss Company, Inc., 323 So.2d 867 (La.App. 4th Cir. 1975); Herzog v. Badilla, 317 So.2d 213 (La.App. 4th Cir. 1975); May v. Finest Foods, Inc., 303 So.2d 192 (La.App. 4th Cir. 1970). This rule is even more compelling in a case such as this where plaintiff is required to prove his case by a preponderance of the evidence. The best interpretation of the evidence favoring plaintiff is that the evidence in this case would support one conclusion just as reasonable as another. If the testimony of the building manager is disregarded entirely, there is no evidence in this case which would show a contact during March, and the controlling evidence would be the inter-office memorandum dated April 8, after the expiration of the agreement.

In addition to the issue stated above, there is another factor to be considered in a determination of this case. This is not the type of case wherein an owner and a prospective tenant have engaged in a conspiracy to deprive the listing agent of its commission or where the owner alone sought that result. The inquiry here is only one single encounter of several over a period of months, and it should be considered in its proper perspective. The prior tenant had notified the owner and the agent (this same agent had secured the prior lease and was receiving commissions under it) in September 1967 of its intention to vacate the premises on March 7, 1968. At that time there was discussion between owner and agent and a loose oral agreement ensued wherein the agent was to get a commission if it secured a new tenant. In October, 1967, some of the agent’s employees contacted International City Bank, which occupied adjacent premises, and discussed the availability of a lease. The testimony of these employees, who were designated as the individuals to handle this account, was that they followed up these initial contacts throughout November, December, January, February and into March with ICB. At the same time, the listing agent attempted to find other tenants and was unsuccessful during the remaining months of 1967, when it decided that if it was granted an exclusive listing contract, it would expend more effort. This resulted in the exclusive listing contract from January 1 to April 1, 1968. The salesmen testified that after this contract was entered into they worked even harder and continued to follow up on the ICB prospect. The record indicates that the owner gave -full cooperation to these salesmen in their efforts and there is not even a hint of interference in their negotiations. Indeed, the employment of this agent was born of personal friendship between some of the officers involved, and the long prior experience of cordial business relationship and mutual profit between the parties over a period of years. If the testimony offered by appellant is to be believed, that its salesmen continued to follow up its initial lead to ICB, it is difficult to see how a telephone inquiry as to availability of the premises to the new building manager, who was entirely unaware of the existence of the listing agreement, could be considered as a breach of contract.

Appellant was well aware that its contract expired on April 1st, and that there was no commission due it unless a lease was produced by that time. The contract contained no saving clause which would permit payment of commission if a prospect with whom it negotiated should later decide to enter a lease, and the owner had refused its request for an extension of the agreement. It is indeed difficult to perceive that a salesman who was interested in obtaining this rather handsome amount in commission, would not have checked towards the end of March with its prospect with whom it had been in negotiation since October. Coincident with this is the fact that these salesmen did not even testify that they had contacted the owner’s new building manager. Under these facts, we cannot conclude that the owner was in breach of contract for the alleged failure of the building manager to notify the agent that an inquiry from ICB was made in March.

The judgment appealed is affirmed.

AFFIRMED.

LEMMON and GULOTTA, JJ., dissented and assigned reasons.

LEMMON, Judge,

dissents and assigns reasons.

The majority opinion is incorrect because (1) there is no basis for disregarding defendant’s building manager’s express testimony that the purchaser contacted him in March, 1968 and that he did not refer the prospect to plaintiff, and (2) no other evidence contradicts this testimony, and indeed other evidence supports it.

The listing agreement involved the lease of the ground floor of the Masonic Temple Building owned by defendant. In September, 1967 the tenant then occupying the ground floor notified defendant of its intention to vacate the premises on March 7, 1968. Defendant requested plaintiff, who had handled the previous lease, to attempt to secure another tenant and agreed to pay a commission, but did not then sign a listing.

Plaintiff’s salesman contacted International City Bank (ICB), who occupied a building which adjoined part of defendant’s building. When the bank president expressed an interest, the salesman on October 26, 1967 delivered a copy of the architect’s sketch of the existing floor plan. The salesman followed up in November and December, but was told no definite decision had been reached.

On January 1,1968 defendant’s Chairman of the House Committee executed the listing agreement at issue, granting plaintiff an exclusive listing for three months. Plaintiff prepared and distributed brochures, advertised in newspapers, and showed the building to several other prospective tenants. When the listing expired on April 1, 1968, plaintiff requested an extension, which was denied.

Defendant signed a lease with ICB on May 13, 1968. Plaintiff, upon learning of the lease, claimed a commission, and this litigation ensued.

Defendant admits that Lonnie Blanchard, an ICB representative, contacted its building manager and that the manager did not refer the client to plaintiff, but contends the initial contact was after the listing agreement had expired. An analysis of the evidence, however, does not bear out this contention.

Sheldon Hubbard became defendant’s building manager in the first week of March, 1968, after the former manager had died on February 2. He testified that Blanchard contacted him “shortly after that” (he answered affirmatively an inquiry as to whether this was in March); that he didn’t know plaintiff had a listing (although there was a 4 x 6-foot sign in the front window); that he told Blanchard he was new on the job and didn’t have any information about the amount of space, the rental price, or the owner’s willingness to make improvements; that Blanchard contacted him again several weeks later (stated by Hubbard to be in March) and still later saw him on the street, but he didn’t yet have any information; and that “considerably later” after the time he became building manager (estimated to be three weeks to one month later) he and the committee chairman became involved in negotiations with Blanchard and with John Sitton, an ICB official who had not been involved in prior discussions.

While Hubbard’s overall testimony was somewhat confused and perhaps influenced by leading questions, it is clear that he had been on the job for several weeks before Sitton became involved in the negotiations. That fact, supported by a memorandum from Sitton to ICB’s president, dated April 8, 1968, stating he and Blanchard had met with Hubbard that morning to outline the basic points of the lease agreement, strongly suggests Hubbard was correct in stating that one or more of the contacts occurred in March.

On the other hand, there was no evidence from which one could reasonably reach a contrary conclusion. The bank president remembered very little, except that his early interest was lessened by access problems which were later resolved. Neither Blanchard nor Sitton testified. The only other witness on the subject, defendant’s committee chairman, testified that he told Hubbard, when informed of Blanchard’s inquiry, to check to see if defendant’s listing had expired before negotiating further, that Hubbard could not find the listing in the office records which were disorganized because of his predecessor’s lengthy illness, and Hubbard finally called plaintiff and ascertained the listing had expired. Again, this testimony, based largely on information received from Hubbard, indicates a substantial period between ICB’s first contact with Hubbard and the commencement of serious negotiations, which took place at least as early as April 8.

Furthermore, Hubbard’s lack of information, even as late as Blanchard’s third contact, also suggests he had not yet determined whether plaintiff’s listing had expired (which was done before specific negotiations began).

Since there was no evidence in the record to support a finding that ICB’s first contact with defendant occurred after the listing agreement expired, there was manifest error in the implicit finding by the trial court that no contact occurred during the existence of the listing agreement.

The majority’s alternative position. — that the failure to refer this particular prospect was a harmless breach of contract because plaintiff had already contacted ICB about leasing the property — ignores the element of timing in the negotiation of real estate contracts. Plaintiff knew the fact that ICB was interested in leasing the property in late 1967, but did not know the fact that ICB became interested anew in March, 1968. It was defendant’s apparently unintentional non-disclosure of the latter fact which breached the contract and deprived plaintiff of the opportunity of negotiating with a currently interested prospect during the term of the listing agreement. Because of this breach under these circumstances defendant should be liable for the amount of the commission. See Doll v. Thornhill, 6 So.2d 793 (La.App.Orl.1942).

GULOTTA, Judge,

dissents.

I dissent for the reasons assigned by LEMMON, J.


author: SCHOTT, Judge. LEMMON, Judge,

text:
    Mary C. PAPWORTH (Deceased) v. TRUXTON CORPORATION et al.
    No. 8836.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Concurring Opinion April 26, 1978.
    Bridgeman & Conway, James R. Conway, III, Metairie, Orr Adams, New Orleans, for plaintiff-appellant.

      Graham, Kiefer & Arceneaux, J. B. Kiefer, New Orleans, Sessions, Fishman, Rosen-son, Snellings & Boisfontaine, Leonard H. Rosenson, New Orleans, Harold A. Buchler, Metairie, Thomas N. Lennox, New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs, Ann Elizabeth Breen, Orr Adams and Frank McLoughlin have appealed from a judgment maintaining exceptions and dismissing their “Action to Remove Cloud from Title.”

In the original petition filed in January, 1973, by Mary C. Papworth, she alleged that she was the owner of certain property in Jefferson Parish as the sole surviving heir of her father (Harry Papworth), mother, sister and two brothers whose succession proceedings had been opened in Jefferson Parish. Attached to her petition were copies of affidavits of death and heirship and wills filed in these succession proceedings but no copies of judgments of possession. She further alleged that her father acquired the property in 1901, sold it in 1905 and reacquired it in 1924 and that he, his predecessor, Metairie Ridge Nursery, and his heirs and successors have had possession of the property for over thirty years.

As to defendants, she alleged numerous sales, judgments of possession, quit claim deeds and other transactions as links in chains of title back to a tax sale to Henry Zander in October, 1925, which she alleges was null and void because it resulted from a dual assessment for the same property on which taxes were paid in the name of Me-tairie Ridge Nursery Company in January, 1925. As to each one of these transfers, including all sales and judgments of possession as well as the 1925 tax sale to Zander, plaintiff alleged that each recordation was casting a cloud on her title and she prayed that they all be cancelled and erased from the public records.

The petition drew several dilatory exceptions, including one of vagueness with respect to the property description but this was disposed of by an amending petition conforming the description to a 1975 survey, copy of which was annexed.

Mary C. Papworth died in June, 1973, and for a time the nominal plaintiff in the case was the executor of her succession, but in December, 1976, an amending petition was filed by Ann Elizabeth Breen, Orr Adams and Frank McLoughlin, in which they alleged themselves to be the owners of the property, Breen having inherited a one-half interest from Mary C. Papworth by virtue of a judgment of possession in her succession proceedings dated February 14, 1974, and Adams and McLoughlin having had transferred a one-half interest to them by Mary C. Papworth on December 9, 1971. These new plaintiffs reiterated all of the allegations and the prayer of the original petition, adding the allegation that the property involved here is a part of a tract patented by the United States to one Angelique Aury and to her heirs on January 15, 1964, and annexing a copy of such patent. It recited that it was based on an 1836 confirmation of a claim to the land by Angelique Aury.

Defendants responded by renewing peremptory exceptions of no right of action and no cause of action previously asserted before Breen, Adams and McLoughlin became parties with the principal thrust of the exceptions being that the allegations 'failed to establish a perfect unbroken chain of title from the plaintiffs back to the sovereign. These exceptions were submitted to the trial court on the basis of the pleadings, memoranda and arguments of counsel but no evidence was taken.

In his reasons for judgment, the trial judge stated that plaintiffs had no interest in the property because there was no chain of title leading up to the interest of Mary C. Papworth in the documents on file. He noted that none of the documents filed in these proceedings from the successions of the ancestors of Mary C. Papworth included a transfer of the property to her. Nevertheless, in his judgment he sustained “the peremptory exception of no cause or right of action to the original petition, as amended” and dismissed plaintiffs’ action as of non-suit.

Plaintiffs contend that the trial judge erred in deciding the question of their title on the basis of the pleadings rather than taking evidence because they were thereby deprived of placing in evidence the complete records of the succession proceedings. Relying on Wischer v. Madison Realty Company, Inc., 231 La. 704, 92 So.2d 589 (1957) they contend that the initial inquiry for the court was whether or not they state a cause of action and if so they are entitled to a trial on the merits in which evidence of title could be taken. We accept that approach for our purposes here and will initially consider the judgment of the trial court maintaining the exception of no cause of action.

Plaintiffs rely on Verret v. Norwood, 311 So.2d 86 (La.App. 3rd Cir. 1975) writs refused 313 So.2d 842, La., for the proposition that they have alleged all of the elements necessary to bring an action to remove cloud from their title. In that case the court held that the necessary allegations to bring the action to remove cloud were, 1) plaintiff claims ownership of the immovable or real right, 2) defendant has recorded an instrument casting a cloud on plaintiff’s title, 3) there be a proper description of the property, and 4) plaintiff desires a cancellation of the recorded instrument from the public records. We agree with plaintiffs that their petition as amended contains these elements but we do not believe that plaintiffs’ problem ends here.

From the opinion in the Verret case we see that plaintiffs pled ownership of the disputed land through their patent from the State of Louisiana as well as possession. They sought to have cancelled from the public records several mineral leases executed and granted by defendants affecting the land. In holding that plaintiffs had properly brought an action to remove clouds from their title the court, with expressed reluctance, followed the teaching of the Supreme Court in Walmsley v. Pan American Petroleum Corporation, 244 La. 513, 153 So.2d 375 (1963). An analysis of the Walmsley case along with all of the Supreme Court cases which created and nurtured the concept of an action to remove cloud from title demonstrates that the court in Verret properly applied the concept to the pleadings there present, but the same analysis demonstrates clearly that plaintiffs do not state a cause of action to remove clouds from their title.

In discussing the pleadings filed in the Walmsley case the court rejected the argument that plaintiffs were pleading a petito-ry action under the guise of an action to remove a cloud as follows, at 153 So.2d 378:

“Reference to paragraph 15, without referring to the preceding paragraphs which set forth the facts of plaintiffs’ ownership and the fact of defendants’ execution and filing of the offending lease, does not disclose the true meaning of that allegation. A reasonable construction of the allegation in paragraph 15, read in connection with the preceding paragraphs, indicates that it is no more than a statement that plaintiffs, as the owners of the property under the chain of title set forth, are entitled as a matter of law to have the instrument executed by defendants cancelled from the records as constituting a cloud on and slander of plaintiffs’ title. It is necessary in connection with plaintiffs’ action to remove a cloud from title that they allege a basis for such a demand. Here they have alleged their perfect record ownership and that allegation is made merely to serve as a basis for their right to have the cloud removed from their title. Rudd v. Land Co., 188 La. 490, 177 So. 583 (1937).” (Emphasis ours)

We think it is significant to note here that the instrument involved was a mineral lease granted by one defendant to the others and recorded by them. Furthermore, the petition set forth in detail plaintiffs’ recorded chain of title in the lands back to a patent granted by the state in 1878. The court continued:

“More important in determining the character of the action to which plaintiffs have resorted is the prayer of the petition. Garnier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611 (1942). The pertinent portions of the prayer are quoted above. The language thereof seeks judgment decreeing the lease to be null, void and of no effect and prays that it be cancelled and annulled and for a decree that defendants have no interest in said property by virtue of the lease. Nowhere in the prayer are plaintiffs asking that they be decreed the owners. This prayer does not ultimately put the title of anyone at issue. The allegations of plaintiffs’ ownership is only collateral to the main demand which is to remove a cloud on plaintiffs’ record title and plaintiffs’ record title, if established, will entitle them to have this cloud removed.” (Emphasis ours)

Earlier in the opinion the court had noted that the prayer was for a judgment “decreeing the lease ‘to be null, void and of no effect and cancelled and annulled . decreeing defendants have no interest in and to said property by virtue of said lease.’ ”

Plaintiffs’ petition in the instant case stands in sharp contrast with the Walmsley petition. First, it does not simply seek to cancel an instrument executed and recorded by defendants but instead seeks to cancel an entire chain of title from the records including a tax sale which occurred over fifty years ago, judgments of possession in succession proceedings and transactions which occurred long before defendants came upon the scene. Unlike the Walmsley case, plaintiffs do not allege their own chain of title in detail back to the sovereign to provide “a basis for their right to have removed from their title” any cloud much less an entire chain of title.

Taking all of their allegations and prayer into consideration as a whole plaintiffs are seeking to have their title recognized and defendants’ repudiated. They seek relief which goes far beyond the concept of an action to remove a cloud from their title and cannot disguise their true action simply by placing another caption on the petition. We cannot accept plaintiffs’ petition as equivalent to the following from the Walmsley case 153 So.2d at page 379:

“[3,4] For the purpose of this exception, and in order to determine whether an action to remove cloud from title has been alleged, we take the allegations of plaintiffs’ petition to be true, and that petition tenders neither title nor possession as an issue; for, according to the petition, defendants have no title or semblance of title. Plaintiffs’ suit, therefore, does not have as its object that plaintiffs be declared owners.” (Emphasis ours)

The court went on to repeat that only a single invalid lease was sought to be expunged from the records; . . the validity of that lease alone is at issue;” and the title was not put at issue by the petition. Finally, the court said:

“Although plaintiffs are required to prove their recorded title to the property it will only be incidental to their right to have the offending lease cancelled, and there will be no adjudication of ownership as between plaintiffs and defendants, which would be the case if this were a petitory action.” (Emphasis ours)

In the instant case, plaintiffs are surely seeking an adjudication of ownership between them and defendants and not merely removal of clouds from their title.

We perceive that the opinion in the Walmsley case was carefully drawn to define narrow limits for the use of an action to remove cloud from title just as the Supreme Court had done previously and prior to the adoption of the Code of Civil Procedure. It was never sanctioned as a means to establish title or to attack the underlying title of a defendant. It was more in the nature of a conservatory remedy which was used to rid the public records of specific inscriptions the defendants recorded. We need but consider the following cases:

Daigle v. Pan American Production Company, 236 La. 578, 108 So.2d 516 (1959), a suit against the State Mineral Board to cancel a mineral lease on state grounds; Authement v. Weill, 197 La. 585, 2 So.2d 31 (1941) to cancel sale of an undivided interest by one defendant to another; Parish of Jefferson v. Texas Company, 192 La. 934, 189 So. 580 (1939), seeking cancellation of mineral leases; Bodcaw Lumber Co. v. Kendall, 161 La. 337, 108 So. 664 (1926), seeking cancellation of a mineral lease; Exchange National Bank v. Head, 155 La. 309, 99 So. 272 (1924), seeking cancellation of a mineral lease; La Croix v. Villio, 123 La. 459, 49 So. 20 (1909), the grandfather of them all, seeking cancellation of a fraudulent judgment of possession and two sales, all confected by the defendant.

The language of the Daigle case, quoted by the court in Walmsley 153 So.2d at page 380, serves to bolster our conclusion that the action to remove a cloud has as its purpose the limited result of removal of some cloud from the public records, not to be a substitute for the real action, petitory and possessory, in which title is the principal issue and a final adjudication between the parties of such is the result.

Returning to the Verret case, we note the following comment by the court at 311 So.2d 89:

“. . . We nevertheless note that plaintiff has not sought to have cancelled the most serious clouds upon his title, that being the 1906 Tax Sale and the 1965 Redemption of the 1908 Tax Sale, both of which indicate the disputed tract belongs to defendants.”

We do not know what the court was implying by this comment but we are impressed with the fact that plaintiffs in the instant case are attempting to accomplish the very thing which the court in Verret noted that those plaintiffs were not attempting, i. e., to reach back into defendants’ title and obliterate it. Had the Verret plaintiffs sought the same relief as our plaintiffs seek the result might very well have been the same as ours.

Finally, we have considered Harrison v. Alombro, 341 So.2d 1165 (La.App. 1st Cir. 1977) writs refused, 343 So.2d 1063 (La.), in which the court stated the requirements of an action to remove clouds from title as, 1) claim of ownership, 2) existence of clouds, 3) description of property, 4) prayer for cancellation of the clouds. Thus, even the previous requirement set up in the Verret case that the defendant has recorded an instrument casting a cloud on plaintiffs title was extended to the mere existence of clouds presumably without regard to when or by whom such clouds were recorded. This language seems to go far beyond what was intended by the Supreme Court in the Walmsley case and we do not subscribe to it. We note the opinion does not reflect exactly what the instruments were which constitute clouds on the title. It may very well be that these were such clouds as mineral leases recorded by the defendants in which case the result was consistent with ours here.

We have concluded that a fair designation of this cause of action as one to remove cloud is inaccurate, that they do not state a cause of action for that relief nor do they state a cause of action for any other relief under their pleadings. The trial judge dismissed plaintiffs’ suit as of a non-suit so that plaintiffs are not precluded from bringing a proper action to establish their own title and question the title of defendants. However, since this was a judgment sustaining a peremptory exception we have considered its propriety in the light of C.C.P. Art. 934 which requires that such a judgment order an amendment of the pleadings where the grounds of the objection may be removed by an amendment. It appears that plaintiffs could by amendment state a cause of action for a petitory action. But plaintiffs in their brief to this court have specifically repudiated any attempt to assert a petitory action in these proceedings with the following statement:

“An action cannot be characterized as petitory unless the plaintiffs were seeking recognition of their ownership, and a simple review of the prayer in the petition of plaintiffs herein clearly shows that they are not seeking recognition of ownership, but are only seeking to have the instruments that are casting clouds cancelled and erased from the public records.”

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurs and assigns reasons.

On the petitions in this record the exception of no cause of action can be sustained. However, since in my opinion the grounds of the objection can be removed by amendment, the judgment sustaining the exceptions should order such amendment within a delay allowed by the court. C.C.P. art. 934 Nevertheless, plaintiffs have declined the relief which would be afforded by an opportunity to amend, and I therefore concur in the decree which simply dismisses the action.

The petitions partially state a cause of action to annul a tax sale. However, the allegations are incomplete in that there are no factual assertions regarding the defendants’ possession.

In my opinion this is a petitory action, the Walmsley decision notwithstanding. Although plaintiffs do not specifically pray to be recognized as owners, such a demand is implicit in this action. Indeed, plaintiffs have no right of action to annul the tax sale unless they claim ownership, and the method of judicially testing a claim of ownership is a petitory action.

Because this is a petitory action, the plaintiffs must allege whether or not each defendant is in possession, in order to determine what burden of proof of title is applicable. Inasmuch as plaintiffs have declined to pursue this action as a petitory action, the suit was properly dismissed.

      . I am unable to comprehend how a plaintiff can be required to prove his title only as an incident to his right to have a cloud removed (as required by the Walmsley decision), but is not required to prove his ownership. I simply cannot conceive how a party can avoid the burden of proof specified for a petitory action by claiming ownership in the body of the petition, as an essential element of an action to remove cloud from title, while at the same time disclaiming ownership as an issue by not claiming ownership in the prayer. .

      . Apparently some defendants are in possession because oil company lessees and homestead mortgagees are among the defendants.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Barbara Clark LEGIER v. Anthony LEGIER, Sr.
    No. 8882.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Concurring Opinion in the Denial of Rehearing May 10, 1978.

      Lawrence A. Wheeler, New Orleans, for plaintiff-appellant.
    Anthony Legier, Sr., in pro. per.
    Terriberry, Carroll, Yancey & Farrell, Dean A. Sutherland, G. Edward Merritt, New Orleans, for garnishees-appellees, The Trustees of the New Orleans Steamship Ass’n, Intern. Longshoremen’s Ass’n, AF of L-CIO Pension, Welfare, Vacation and Holiday Funds; and Francis A. Garitty, Administrator, Royalty Escrow Fund.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff, a judicially separated wife, seeks a garnishment of her husband’s accumulated vacation and holiday funds in possession of the trustees of a pension and vacation fund and earned but unpaid wage benefits in a royalty escrow fund in possession of the fund administrator. The garnishment is sought in satisfaction of an executory judgment for accumulated child support payments.

In a motion to traverse the answers filed by the attorney for the garnishees (the trustees of the pension fund and the administrator of the escrow fund), plaintiff seeks 1) to have all funds belonging to her husband which are now in the possession of the trustees and the administrator turned over to her and 2) to obtain judgment against the garnishees for the full amount of the unsatisfied judgment plus reasonable attorney’s fees because of the false, incorrect and insufficient answers to the interrogatories filed on behalf of the trustees and administrator.

After contradictory hearing, the trial judge ordered that the husband’s funds be turned over to the Civil Sheriff for the Parish of Orleans pursuant to plaintiff’s writ of fieri facias, “subject to the exemptions provided by law”. The other demands made by plaintiff in the rule to traverse were dismissed. Plaintiff appeals.

Plaintiff raises several issues. Relying on LSA-C.C.P. arts. 2411-2415, LSA-C.C.P. arts. 1457 and 1458, she contends that the answers to the interrogatories were defective and insufficient because they were not signed by the garnishees themselves but by their attorney. According to plaintiff, because of the garnishees’ failure- to answer, she is entitled to judgment against them for attorney’s fees and for the full amount of the unsatisfied judgment against defendant.

It is her further complaint that the trial judge erred in allowing the garnishees to assert the exemption from seizure on behalf of the debtor as provided for in LSA-R.S. 13:3881 and in 15 U.S.C. § 1673 (1968) and in rendering judgment in favor of plaintiff against garnishees, subject to the statutory exemptions. According to plaintiff, the garnishees are not the employers of the debtor but are third-party “stake holders” or depositaries who cannot assert the exemptions. In this connection, plaintiff also claims the fringe benefit funds held by the garnishees are not wages, but are the “property” of the debtor which is subject to seizure without exemption.

Finally, relying on LSA-R.S. 13:3928, Davis v. Contorno, 234 So.2d 470 (La.App. 1st Cir. 1970) and Theriot v. Melancon, 311 So.2d 578 (La.App. 3d Cir. 1975), plaintiff contends that the exemptions set forth in LSA-R.S. 13:3881 do not apply to a case where a plaintiff seeks garnishment of funds in satisfaction of an executory judgment for child support.

Before considering plaintiff’s contentions, we dispose of the threshold issue raised by the garnishees, based on LSA-C. C.P. art. 2252 and Courtesy Finance Company of Gentilly v. Tucker, 340 So.2d 1017 (La.App. 4th Cir. 1976), that the garnishment is null because it was issued prior to the expiration of the delay for taking a suspensive appeal from the executory child support judgment. Though it is true the garnishment issued prior to the expiration of the time for an appeal, nevertheless, no appeal was taken. In such instance, our courts have held that the party cast has ratified the premature execution. See Comment (b) of LSA-C.C.P. art. 2252 and the cases cited therein. See Associates Financial Services, Co. v. Hillebrandt, 250 So.2d 75 (La.App. 3d Cir. 1971). See also dicta in City Electric & Supply, Inc. v. Taft Park Homes, Inc., 225 So.2d 293 (La.App. 4th Cir. 1969). It is also significant that the garnishees answered the interrogatories and have not filed an appeal or answered plaintiff’s appeal from the judgment on the rule to traverse. Under the circumstances, we conclude any argument based on nullity of the garnishment has been waived.

Turning now to plaintiffs arguments, we find no merit to the contention that because the attorney for the garnishees signed the answers to the interrogatories and not the garnishees, no “answer” was filed. LSA-C.C.P. art. 863 provides:

Art. 863. Signing of pleadings, effect

“Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
“Pleadings need not be verified, or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

The Codal provision clearly allows for pleadings to be signed by attorneys. Furthermore, LSA-C.C.P. art. 1458, relied on by plaintiff, which requires that each answer to the interrogatories is to be signed by the “person making them” is found under the discovery and deposition articles and relates to discovery. The LSA-C.C.P. articles applicable to garnishment are LSA-C.C.P. arts. 2411-7. We find no prohibition in these provisions against an attorney’s signing the interrogatories. In the absence of any statutory prohibition (and we find none), we conclude LSA-C.C.P. art. 863 provides authority for an attorney to sign the answers to the interrogatories on behalf of the garnishees.

Under the circumstances, we conclude the garnishees answered the interrogatories and the trial judge properly dismissed plaintiff’s claim to cast them in judgment for the unsatisfied amount owed by defendant and for attorney’s fees.

We find merit, however, to plaintiff’s contention that the trial judge erred when he applied the statutory exemption to the funds held by the garnishees. LSA-R.S. 13:3881 provides that 75% of a debt- or’s “disposable earnings for any week” (emphasis ours) are exempt from garnishment. Significantly, the statute refers to earnings for any “week”. The statute also refers to an employee’s “pay period”. We interpret, therefore, the exemption to apply to garnishment of weekly, biweekly or monthly earnings at the time they are paid to the employee. We conclude also the exemption does not apply to accumulated fringe benefits which have accrued prior to the garnishment. By analogy, we find support for this conclusion in Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), a bankruptcy case dealing with the Federal Consumer Credit Protection Act and its statutory 25% garnishment limitation of a debtor’s disposable earnings. The United States Supreme Court, in affirming the Court of Appeals’ holding that the exemption did not apply to the debtor’s income tax refund, stated, supra, at page 2436,

“The Court of Appeals held that the terms ‘earnings’ and ‘disposable earnings,’ as used in 15 U.S.C. §§ 1672, 1673, did not include a tax refund, but were limited to ‘periodic payments of compensation and [do] not pertain to every asset that is traceable in some way to such compensation.’ 2 Cir., 479 F.2d at 997. This view is fully supported by the legislative history. There is every indication that Congress, in an effort to avoid the necessity of bankruptcy, sought to regulate garnishment in its usual sense as a levy on periodic payments of compensation needed to support the wage earner and his family on a week-to-week, month-to-month basis. * * *”

Similarly, in our case, though the husband’s accrued fringe benefits like his income tax refund are related to his labor, the accumulated fund is not a periodic payment subject to exemption. Having so concluded, we need not address plaintiff’s argument that the exemption does not apply to enforcement of an executory judgment for unpaid accumulated child support.

Accordingly, we conclude the exemption provided for in LSA-R.S. 13:3881 is not applicable to the accumulated funds. Having so concluded, we amend the judgment to the extent that the husband’s accumulated vacation and holiday funds and royalty escrow funds in their entirety are to be turned over to the Civil Sheriff for the Parish of Orleans in satisfaction of plaintiff’s writ of fieri facias. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

LEMMON, Judge,

concurs in denial of application for rehearing and assigns reasons.

On application for rehearing the garnishees reurge their contention that defendant’s vacation and holiday benefits and royalty escrow fund benefits constitute wages or earnings exempt from seizure under R.S. 13:3881. They cite Lines v. Frederick, 400 U.S. 18 (1970), which held that accrued vacation pay, which functions to support a wage earner’s basic requirements of life during vacation periods or in the event of a layoff, constitutes wages and was not “property” which had to be turned over to the trustee in bankruptcy.

There is absolutely no evidence in this record regarding the funding, accumulation, purpose or method of distribution of vacation and holiday pay. If it were shown that this pay served to provide defendant with a substitute for his regular “disposable earnings” which he did not receive during periods of vacation or on holidays, we would have to decide whether the exemption applied. But since no evidence indicates these funds are qualified for the exemption, our decision on original hearing properly denied the exemption.

      . The Louisiana Supreme Court in Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976), where execution was sought prior to the expiration of the appeal period, held the seizure was premature. The court stated:
      “ * * * Article 2252 provides that a judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed. * * *"
      However, waiver was not discussed by the court in Nassau. In that case, subsequent to the date for the commencement of the running of the suspensive appeal period (November 25) but before the date of the expiration of this period (December 24), a petition for injunction to arrest the seizure and sale, to annul the default judgment and for damages was filed (December 5). Clearly, under these circumstances, the judgment debtor cannot be guilty of waiver.
      We distinguish also Courtesy Finance Company of Gentilly v. Tucker, 340 So.2d 1017 (La.App. 4th Cir. 1976), relied on by garnishees. In Courtesy Finance Company, unlike our case, the suspensive appeal period had never commenced to run and the judgment debtor had filed a motion to dissolve the garnishment. Our holding is not inconsistent with the Courtesy Finance Company case.

      . LSA-R.S. 13:3881, in pertinent part, provides:
      § 3881. General exemptions from seizure; waiver of sovereign immunity from garnishment
      “The following income or property of a debtor is exempt from seizure under any writ, mandate, or process whatsoever:
      (1) Seventy-five per centum of his disposable earnings for any week, but in no case shall this exemption be less than at the rate of seventy dollars per week of disposable earnings or a multiple or fraction thereof according to whether the employee’s pay period is greater or lesser than one week. The term ‘disposable earnings’ means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.”


author: GARSAUD, Judge.

text:
    Elizabeth Helen CHMURKA v. SOUTHERN FARM BUREAU INSURANCE COMPANY.
    No. 8927.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      White & May, Darrell D. White, Gordon M. White, Baton Rouge, for plaintiff-appellant-appellee.
    Porteous, Toledano, Hainkel & Johnson, John M. Hainkel, Jr., William A. Porteous, III, New Orleans, for defendant-appellee-appellant.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This appeal arises out of a two-car collision in which plaintiff was injured when defendant’s insured crossed into the opposite lane of traffic and hit plaintiff’s vehicle head-on. Defendant stipulated to liability before trial, and plaintiff stipulated that all medical bills except one had been paid. Thus, only the extent of plaintiff’s injuries was at issue. The trial court rendered judgment in favor of plaintiff for $16,-706.45, $15,000 for general damages and $1,706.45 for medical bills. Plaintiff appealed the denial of her claims for disfigurement and impairment of earning capacity. Defendant answered the appeal, contending error on the part of the trial court in awarding the sum of $15,000 to plaintiff for general damages and for awarding all medical costs when by stipulation it was agreed that all bills but one had been paid.

The primary injury to the plaintiff was the dislocation of her hip, necessitating surgery. This surgery required hospitalization for twelve days and confined plaintiff to her home for approximately two months. In this period, however, her employer continued to pay her full wages, so there was no question of any past lost earnings. The surgery resulted in about a seven-and-one-half-inch scar on plaintiff’s left hip, which is visible when plaintiff is wearing a bathing suit or shorts.

The first issue is whether the trial court erred in awarding $1,706.45 for medical bills. The record establishes that a stipulation was entered into wherein plaintiff agreed that all medical bills, save one in the amount of $92.00, had been paid. Apparently the trial court inadvertently included in its award the amount for medicals. This was error. Accordingly, we reduce the award for medical bills from $1,706.45 to $92.00, the amount remaining unpaid.

The second issue is whether the trial court erred in disallowing any recovery for the disfigurement caused by the surgical scar. In its reasons for judgment, the trial court stated, “We are of the opinion that the scars suffered by Miss Chmurka can hardly be designated as disfiguring scars . . .” Thus, it is apparent that the trial court, in its award of $15,000 for general damages, did not include any amount for the surgical scar. We believe that the exclusion was error. Plaintiff’s exhibits P-24 through P-28 show a permanent surgical scar which is noticeable when plaintiff wears a bathing suit. Although a trial court’s finding should be given great weight, the conclusion that the scar is not disfiguring is erroneous. A scar is a disfigurement of the body, and when its position is noticeable in public circumstances, then it is disfiguring and compensable. As has been said,

“Whether the scar is in itself disfiguring or whether its detracting features have been magnified in [the] plaintiff’s mind, it is in either case an injury that has produced mental anguish and is hence compensable.” Orfanello v. Pepsi Cola Bottling Co., 290 So.2d 353 (La.App. 4th Cir. 1974), cert. den., 293 So.2d 178 (La.1974).

The amount awarded then becomes a question of degree. Some scars may be so insignificantly disfiguring that a nominal or token award is sufficient, or perhaps even a de minimis rule would be appropriate.

Recognizing that other decisions on matters of quantum are not binding, as no two cases are really fully alike, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), we believe that as we are called upon under the circumstances to make the initial judgment on quantum, similar cases will be of some assistance in reaching an amount. For example, in Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir. 1975), cert. den., La., 325 So.2d 608, a 26-year-old unmarried woman was awarded $2,000 for a star-shaped scar below her left kneecap and five small scars in various places on her right knee. The degree of disfigurement herein also justifies an award of $2,000.

The next issue is whether the trial court erred in failing to grant any award for loss of future earning capacity. In its reasons for judgment, the trial court stated, “Nor do we find that she proved the loss of any present or future wages as a result of the accident.” It is the plaintiff’s position that the trial court erred in not considering her loss of future earning capacity, as opposed to loss of any future wages. The appellant argues that, as a result of her hip injury, her earning capacity is reduced in that, for example, she may have to retire earlier than anticipated or be absent more than the average employee. She further argues that the trial court’s conclusion that no future wages have been lost as a result of the accident simply fails to address itself to her claim of reduction of future earning capacity. Be that as it may, we are not required to resolve that disagreement as it is our opinion the evidence supports a conclusion that her future earning capacity has not been impaired. Although Dr. Kennon concluded that Miss Chmurka had a five-to-ten-percent disability of the hip, he later testified unequivocally that it was possible but not probable that the injury would cause impairment of her future earning capacity. The appellant makes much of its expert economist’s testimony regarding the present value of her future earning capacity and its relationship to a five-to-ten-percent disability, showing that she will lose a certain amount of dollars based upon the disability. Although this may be true, it begs the question. It assumes that there is in fact an impairment of future earning capacity. The doctor admitting the disability (and it should be noted that he was plaintiff’s own witness) testified that the disability will not impair future earning capacity. Accordingly, we believe that it was not error for the trial court to fail to award any amount for loss of future earning capacity.

The next issue is whether an award of $15,000 for pain and suffering and permanent disability (five to ten percent of the hip) is justifiable under the circumstances, or whether the trial court’s decision in this regard was erroneous. Defendant has argued that the award of $15,000 is excessive. After reviewing all the evidence in the record, we do not believe that the trial court abused its discretion in awarding $15,000 for this injury. Accordingly, we do not disturb the award. Coco v. Winston Industries, Inc., supra. In reaching this decision, the trial court relied on various factors, including that Miss Chmurka was jammed in her vehicle for some 45 minutes to an hour before she was extricated and sent to the hospital. During this time she was semiconscious and endured a great deal of pain. The record indicates that when witnesses to the accident attempted to move her out of the car, they were unable to do so as a result of the attendant pain to her leg when any movement was attempted. After two unsuccessful attempts at reduction of the hip joint by manipulation, the plaintiff had to undergo surgery, for which ihe was hospitalized for twelve days. Confinement at home took approximately two months. At this time she still complains of some pain in the hip when there is a change in the weather and when she undertakes too strenuous an activity. In addition to the hip injury, the accident resulted in a cut under her left breast of about a half-inch in length requiring four or five stitches, bruises of the knees, and general contusions of the body. Further, the court found that the disability of the hip constituted approximately a two- or three-percent disability of the complete bodily functions. Under these circumstances, we do not believe that there was manifest error in these conclusions, and sustain the trial judge’s findings. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976).

The final issue is whether the trial court committed error in awarding Dr. Ken-non, as an expert witness, a fee of $250. Prior to the judgment rendered, Dr. Ken-non submitted a bill to plaintiff for $500 for testifying. Apparently defendant would not agree to the doctor’s deposition for purposes of trial, and his presence was thus required at an unexpected time in the doctor’s schedule. Accordingly, the doctor submitted a $500 bill. The trial court set a fee of $250 after considering all the circumstances and that is the fee to be awarded. Williams v. Harvey, 328 So.2d 901 (La.App. 4th Cir. 1976); R.S. 13:3666.

The judgment appealed from is affirmed, but amended so that there is judgment in favor of plaintiff and against defendant in the sum of $17,092.00, with legal interest from date of judicial demand until paid plus all costs, including the expert witness fee due Dr. Kennon in the amount of $250.00.

AFFIRMED AND AMENDED.


author:
GULOTTA, Judge.
      LEMMON, Judge,

text:
    Allen JOHNSON v. ALLRIGHT NEW ORLEANS, INC. (two cases).
    Nos. 9140 and 9141.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Writ Refused May 5, 1978.

      Ronald J. Rakosky, New Orleans, for plaintiff-appellee.
    William B. Morgan, II, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Defendant, the operator of an automobile parking lot, appeals from a judgment for damages sustained when plaintiff’s two automobiles were stolen on two consecutive days from the lot. Arrangements for parking had been on a monthly basis and plaintiff had regularly parked in defendant’s lot for approximately 18 years at the time that the first theft occurred. We reverse.

The undisputed facts are that plaintiff arrived at the parking lot at approximately 9:00 a. m. on each working day and left the keys in the automobile to allow for parking by the attendant, or, if necessary, moving the automobile after once parked. The posted closing time, 6:00 p. m., was known to plaintiff. Also known to him was the fact that at closing time the attendant left the parking lot and the remaining automobiles were unattended. According to the attendant, the keys of the automobiles remaining on the lot at closing time were taken to an attended parking garage operated by defendant. An arrangement was made, however, between the attendant and plaintiff that the keys would be placed by the attendant under the sun visor or on the floor of the automobile when it remained in the lot after closing time. More often than not the keys were placed by the attendant at the designated places in the automobile rather than at defendant’s other supervised and attended parking garage. According to plaintiff, the keys were taken to defendant’s other parking garage on only a “few” occasions.

Most significant is the undisputed testimony of the parking lot attendant that both of plaintiff’s automobiles on the day that each was stolen were on the parking lot when he left at closing time. Plaintiff testified that on the day the first automobile was stolen he had returned to pick up the car between 8:30 and 9:00 p. m. He returned to pick up the other automobile on the second day at 6:30 p. m. Plaintiff testified further that on the two days the automobiles were stolen the keys had been left in the automobiles for use by the attendant. This testimony was contradicted by the attendant who testified that on those days the keys had not been left in the automobiles. The attendant stated, however, that he was testifying from independent recollection and had made no reports and was not referring to any reports of the theft to refresh his memory. Although no findings of fact were stated by the trial judge, nor reasons assigned, we are led to the conclusion that on the days the theft occurred, the keys were left in the automobiles. Based on this factual finding and the undisputed facts, we conclude that there exists no liability on the part of the parking lot operator for vehicles stolen from the lot after closing time.

The operator of a parking facility or a parking garage is a compensated depositary whose responsibility is to use the same diligence in preserving the deposit that he uses in preserving his own property. LSA-C.C. art. 2937; Norwegian Government Seamen’s Service v. Himbert, 228 So.2d 757 (La.App. 4th Cir. 1969); United States Fidelity & Guaranty Company v. Allright Shreveport, Inc., 256 So.2d 479 (La.App.2d Cir. 1972). Although the depositary is not the insurer of the deposit, his duty is to exercise due care in its preservation. Once the theft, loss or damage to the property deposited has been established, however, a presumption arises that the loss resulted from the depositary’s lack of due care, negligence or fault, and the burden is then placed on the depositary to exonerate himself from negligence. Travelers Insurance Company v. Coleman E. Adler, Inc., 285 So.2d 381 (La.App. 4th Cir. 1973); Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973); Federal Insurance Company v. C & W Transfer and Storage Company, Inc., 282 So.2d 563 (La.App. 4th Cir. 1973); Soileau v. Ville Platte Rice Drier, Inc., 322 So.2d 404 (La.App. 3d Cir. 1975). Furthermore, it is well-established that a contract of deposit may be changed, enlarged or modified by agreement. Norwegian Government Seamen’s Service v. Himbert, supra; Soileau v. Ville Platte Rice Drier, Inc., supra.

Because, by agreement, a course of conduct had been established for an extended period of time between plaintiff and the parking lot attendant whereby if the automobile were not picked up by closing time the keys (for the customer’s convenience) were placed behind the sun visor or on the floor of the automobile and because the undisputed testimony of the attendant was that the automobiles were on the lot at closing time, we conclude defendant successfully carried the burden of exonerating itself from negligence. See Continental Ins. Co. v. Himbert, 37 So.2d 605 (La.App. Orl.1948). The Himbert court, in a factually similar case, concluded that because the customer had known that the keys would be left in the automobile after the 5:30 p. m. closing time, he had empowered the defendant parking lot operator to make a “constructive delivery” of the automobile. The court, in Himbert, held that defendant’s liability had ceased at the 5:30 p. m. closing time.

In Jacques v. City Parking Service, 97 So.2d 78 (La.App.Orl.1957), relied on by plaintiff, the court allowed recovery to a plaintiff parking customer based on a factual finding that the automobile was stolen before the 6:00 p. m. closing time. The Jacques court, discussing burden of proof, declared the defendant lot owner was required “to prove that it properly performed the obligation which it had assumed until 6:00 P.M., and that the theft had not occurred through defendant’s fault up to the moment the contract of deposit expired [footnotes deleted]”.

Having concluded that the theft occurred after closing time and having considered also the course of conduct established by plaintiff and defendant as set forth herein-above, we reverse the judgment of the trial court. Judgment is now rendered dismissing plaintiff’s consolidated suits at his cost.

REVERSED AND RENDERED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

I concur in the result.

The evidence establishes that the contract between these parties was for defendant to act as depositary until 6:00 p. m., at which time the attendant was to restore the deposit by placing the keys over the sun visor or on the floor. Thus, the contract of deposit ended at 6:00 p. m., and defendant’s duties thereunder ended when the employee handled the keys as agreed upon.

If evidence showed the car was stolen before 6:00 p. m., defendant would be presumed liable, without proof of specific negligence, and would have the burden of proceeding with evidence exonerating itself. But before the presumption attaches, plaintiff has the burden of proving that a loss occurred and that a contract of deposit was in existence at the time the loss occurred. Since plaintiff did not establish the loss occurred during the term of the contract, there is no presumption that the loss resulted from the depositary’s negligence or fault.

      . In the absence of a contract established by custom, leaving the keys in an unlocked car in an unattended parking lot would render defendant liable.

      . In this respect I disagree with the dicta regarding burden of proof in Jacques v. City Parking Service, supra,


author: WATSON, Judge.

text:
    Henry N. WRIGHT, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 6417.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 1978.
    Rehearing Denied May 24, 1978.

      Raggio, Farrar, Cappel & Chozen, Stephen A. Berniard, Jr., Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This is an appeal by the defendant insurer, Liberty Mutual Insurance Company, from a judgment in a workmen’s compensation case awarding benefits for total and permanent disability. Plaintiff, Henry N. Wright, Jr., has answered the appeal, contending that penalties and attorney’s fees should have been awarded and that credit should not have been given for certain wages paid in lieu of compensation. The trial court concluded that Wright is totally and permanently disabled from an accident sustained while he was working at Cagle Chevrolet Company.

A car bumper fell on plaintiff’s back on June 1, 1976, following which he was hospitalized for six days and was required to wear a brace for three months. His injury, according to his attending physician Dr. Edmond C. Campbell, consisted of a fracture of the L-2 vertebra and a minor fracture of L-l. On October 1, 1976, plaintiff returned to work at Cagle’s on light duty. His work, according to defendant’s witnesses from Cagle’s, was unsatisfactory and he was discharged on December 9, 1976.

On December 13, 1976, Dr. Campbell saw plaintiff for the last time and discharged him with a 10% permanent partial disability of the back.

Weekly compensation benefits were paid from the date of the accident until plaintiff returned to work for Cagle’s when he began receiving his regular wages. After he was fired, compensation payments were never resumed despite demand.

The issues presented on appeal are:

(1) Did the trial judge err in awarding benefits for total and permanent disability?

(2) Were the wages paid by Cagle in lieu of compensation benefits?

(3) Was the defendant’s failure to pay compensation benefits arbitrary, capricious or without probable cause entitling plaintiff to penalties and attorney’s fees?

Total and Permanent Disability

The thrust of plaintiff’s claim is that he cannot work because if he did so he would suffer disabling pain. Our review of Dr. Campbell’s testimony and that of Dr. Norman P. Morin, another orthopedic surgeon who examined plaintiff, reflects that the medical supports plaintiff’s contention. While Dr. Campbell stated that, in his opinion, plaintiff could return to work, he could not say that plaintiff could work without pain. Dr. Campbell thought the pain might be sufficiently mild to permit plaintiff to remain employed but he admitted that pain is subjective and difficult to measure. Dr. Morin testified that plaintiff might suffer disabling pain if he attempted to work; and Dr. Morin would not dispute plaintiff’s testimony that he could not work because of pain. Dr. Morin also said that the accident could possibly cause an earlier onset of arthritis. Dr. Morin awarded plaintiff a 10% permanent partial disability of the back.

Plaintiff’s wife and mother also testified in support of plaintiff’s contention that he suffered pain while attempting to work or do other strenuous activities. The testimony of the wife is particularly strong and, since the trial judge heard and saw this witness, it is possible that he accorded considerable weight to her testimony.

On the basis of the record, it is our conclusion that the trial judge did not manifestly err in finding plaintiff totally and permanently disabled, especially in view of the decision of this court in Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3 Cir. 1977), the facts of which were not as favorable to the injured employee on the issue of disabling pain as are those of the present case. Writs were denied by the Louisiana Supreme Court in Phillips, at 353 So.2d 1048 (La., 1978).

Wages in Lieu of Compensation

The test in Louisiana for determining whether wages were paid in lieu of compensation is whether the wages were actually earned. Le Blanc v. Mangel’s of Louisiana, Inc., 306 So.2d 422 (La.App. 3 Cir. 1975). The employer (or insurer) is entitled to credit only if the wages were not earned but were paid as a gratuity. Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App. 4 Cir. 1976). The evidence is that upon his return to work, Wright “supervised” the new vehicle preparation shop for Cagle. His fellow employee, Gimble, testified that he Gimble did the work and plaintiff spent his time “watching” (TR. 109). Plaintiff said he drove vehicles and did menial tasks. Plaintiff was discharged on December 9 for unsatisfactory work. There is no reasonable basis to conclude that the wages were paid as a gratuity or that plaintiff was not expected to earn them. The fact that Wright’s work was below par is not the equivalent of saying the wages were not earned or that Cagle intended to pay him for not working. There is manifest error in the trial judge’s conclusion that the wages were paid in lieu of compensation.

Penalties and Attorney’s Fees

Plaintiff returned to work for Cagle on October 1, 1976 and while it is true that he was on light duty, he was receiving wages and the insurer was not required to pay compensation during that period. He was fired on December 9 and shortly thereafter (the record does not reflect the precise date) Dr. Campbell reported that he could return to work. Later medical information from Dr. Morin developed only a close question as to total disability.

Under the circumstances the trial court did not err in denying penalties and attorney’s fees.

For the reasons assigned, the judgment of the trial court awarding plaintiff compensation benefits for total and permanent disability is affirmed as is the judgment insofar as it denies penalties and attorney’s fees.

The judgment of the trial court is reversed as to the allowance of credit toward weekly compensation benefits for wages paid for the period from October 1, 1976 to December 9, 1976.

Costs of this appeal are taxed against Liberty Mutual Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Also see Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978).


author: BLANCHE, Judge.

text:
    George HORNE, Individually and on behalf of his minor children, and the Jefferson Parish School Board v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION et al.
    No. 11879.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writ Refused June 9, 1978.
    Jack A. Grant, Gretna, of counsel for plaintiffs-appellants George Horne et al.
    Thomas H. Matuschka, Baton Rouge, of counsel for defendants-appellees La. State Bd. of Elementary and Secondary Education et al.
    John F. Ward, Jr., Baton Rouge, of counsel for defendant-appellee La. School Boards Ass’n and intervenor East Baton Rouge Parish School Bd.
    Samuel I. Rosenberg, New Orleans, of counsel for intervenor-appellee Orleans Parish School Bd.
    Fred H. Sutherland, Shreveport, of counsel for intervenor-appellee Caddo Parish School Bd.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiffs-appellants, George Horne, an individual taxpayer, and Jefferson Parish School Board, brought this action to declare unconstitutional and to enjoin the distribution and dispensing of revenues allocated to the several local parish and city school boards under the Minimum Foundation Program (hereinafter referred to as “MFP”), pursuant to a formula adopted by the State Board of Elementary and Secondary Education (hereinafter referred to as “BESE”) and approved by the Louisiana Legislature for the fiscal year 1976-77. The prayer for relief in plaintiffs’ petition, where pertinent, prays for a judgment declaring that portion of Senate Resolution 89 of the 1976 Louisiana Legislature using “equalized assessment” (II, 1) illegal and unconstitutional and that a permanent injunction issue against the defendants, enjoining them from dispensing any state funds pursuant to the MFP until or unless:

“1. Any deductions used in calculating the support side of the Minimum Foundation Program formula reflect the actual amount of funds received under the 5 mil [sic] constitutional tax levied; or, alternatively, and, only in the alternative,
“2. The 5 mil [sic] constitutional tax levy be completely eliminated from the support side of the Minimum Foundation Program formula * * .” (Record, pp. 15-16)

The following factual narrative will facilitate an understanding of the nature of the plaintiffs’ complaint.

The Minimum Foundation Program, as the concept is popularly known, is set forth in the 1974 Louisiana Constitution as Article 8, § 13(B) and is here quoted:

“(B) Minimum Foundation Program. The legislature shall appropriate funds sufficient to insure a minimum foundation program of education in all public elementary and secondary schools. The funds appropriated shall be equitably allocated to parish and city school systems according to formulas adopted by the State Board of Elementary and Secondary Education and approved by the legislature prior to making the appropriation.”

Through this program the State of Louisiana has adopted a policy of providing minimum funding standards for the public elementary and secondary schools of the state. The obvious purpose is to provide a minimum level of acceptable educational advantages to the youth of this state. To implement the program, BESE adopts a “cost side” of the program. The cost side establishes the minimum cost of providing certain minimum educational services considered essential to meet the “minimum foundation” established by BESE. The school system of each parish is reviewed and a cost side is calculated for it. Plaintiffs are not attacking the cost side of the program, but we mention it briefly so that the other side of the program known as the “support side” may be more easily understood. As we appreciate it, the support side involves the formula used to fund the cost side, or, simply stated, funding the minimum program. From the total cost of the program in each parish, certain local funds are, in effect, subtracted and the resulting balance is appropriated by the State to complete the funding of the minimum program. Critical to the case before us is the constitutional authority of each school board to levy a five-mill ad valorem tax on the assessed property valuation of each parish. The significance of this factor is that the five-mill tax varies relatively among the parishes depending upon the ratio of the assessed value to the actual market value of the property. For example, if in Parish “A” property with an actual market value of one million dollars is assessed at 5 percent of actual market value, it will yield in taxes $250 ($1,000,000 X .05 X .005); whereas, if in Parish “B” property with an actual market value of one million dollars is assessed at 10 percent of actual market value, it will yield $500. This represents a difference between the two parishes of $250 or 50 percent. Since Parish “B" with the higher assessed valuation receives more taxes and this sum is reduced from the amount which the State will appropriate, the result is that it will receive less funds, relatively, from the State than Parish “A,” which, conversely, will receive, relatively, more funds from the State.

In adopting the cost side formula of the MFP for 1976-77, BESE undertook a study known as the “Peters Study.” The purpose of this study was to attempt to arrive at a method, in effect, to equalize the five-mill revenue factor among the parishes. This was done by arriving at a “sales-ratio.” A sample survey was made in all but one parish of actual sales, reflecting actual values, and assessed values of the same property. The result was a ratio of the actual property value to the assessed property value. The formula adopted by BESE reflected the difference among the parishes. In the case of Jefferson Parish, its property assessments were lower than the average and it received less funding from the State as a consequence of the formula adopted.

The trial court limited the issues before it to a consideration of the constitutionality of that portion of the Senate Resolution which provided for “equalized assessment” and to the injunctive relief against the appropriate state offices prohibiting them from dispensing any funds pursuant to the MFP. In Written Reasons for Judgment the trial judge found the formula for funding the program was not in violation of the constitution and dismissed plaintiffs’ suit for in-junctive relief.

In plaintiffs’ brief before this Court, they acknowledge that since rendition of the judgment in the trial court all of the funds to be disbursed pursuant to the formula under attack for the fiscal year 1976-77 have been disbursed. However, plaintiffs contend that a justiciable controversy still exists because “the concept of using theoretical dollars for local support instead of actual dollars collected by the local school districts as the local support item in the MFP has been approved by BESE and the 1977 Legislature for the 1977-78 school year.”

We do not find in the record that there is any evidence that the program for 1977-78 was approved by BESE or the Legislature. The evidence shows that both the cost side and support side of the formula are changed in varying respects from year to year.

The affidavit of James D. Prescott indicates that recommendations have been made to BESE to update the “Peters sales-ratio study” for 1977-78. The affidavit also indicates that BESE was also considering eliminating from the formula altogether the five-mill constitutional tax charge-back, which is one of the forms of relief requested by these plaintiffs.

Accordingly, we do not view the record with the same finality as the plaintiffs concerning what BESE will finally recommend for 1977-78. Even if it were a fact that the MFP for 1977-78 had been given final approval, it is no part of this lawsuit. Therefore, we view our opinion as to the constitutionality of the formula in the future as purely advisory.

The courts will not rule on questions of law which become moot since their decree will serve no useful purpose and can give no practical relief. Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960).

In the present case it would serve no useful purpose to declare that Senate Resolution No. 89 disbursed funds pursuant to a formula that violated constitutional protections. The Senate Resolution pertained only to MFP funds for the fiscal year 1976-77 and after their disbursement, there was nothing to enjoin. Furthermore, even if it were an unconstitutional disbursement, we are powerless to give any remedial relief.

For the above and foregoing reasons, the judgment of the trial court is now moot, and plaintiffs’ appeal is dismissed at plaintiffs’ costs.

APPEAL DISMISSED.