author: MARVIN, Judge.

text:
    Mrs. Pat McEnery BENTLEY, Plaintiff-Appellee, v. INDUSTRIAL FIRE PROTECTION COMPANY, Defendant-Appellant.
    No. 13038.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.

      Farrar & Perry by Bennie Mac Farrar, Monroe, for defendant-appellant.
    Johnson, Johnson & Joyce by Don H. Johnson, Monroe, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Defendant appeals a judgment for damages to plaintiff’s property arising out of the construction of a building by defendant on its property immediately north of plaintiff’s property.

Pertinent details, roughly to scale, from plats of surveyors are reproduced to facilitate an understanding of the issues presented.

Defendant’s land enjoys the status of a dominant estate for natural drainage across plaintiff’s southerly and servient estate. Natural drainage from defendant’s land of greater elevation, originally and before construction of its building, was generally towards the southeast and across the north-easternmost part of plaintiff’s land.

The lands front on a rural blacktop road in Ouachita Parish with a ditch, constructed to drain water southerly, parallel to the road. A culvert and gravel driveway afford access across the ditch. An old fence ran along the common boundary between plaintiff and defendant.

Defendant graded or cut down the north-westernmost area of his lot to level it for the construction of his building. A natural swale extending from the center of defendant’s property which drained southeasterly towards and across plaintiff’s property was leveled, sloped and reshaped to relocate the drainage pattern further to the rear of the property, but to drain onto plaintiff’s property at approximately the same place as before construction. The lower court properly observed that defendant’s lot is now relatively level on the front (west) portion; that it slopes rather sharply behind or east of defendant’s building and then slopes less sharply generally towards the southeast.

Plaintiff complained below that defendant destroyed portions of the old fence on the common boundary; committed various trespasses on her property and caused dirt to wash down on her property.

The record supports these observations and findings of the lower court:

“. . . [M]any of the conditions . complained about . . . were either superficial or purely temporary and unavoidable consequences [of the construction] . . . [any construction] would have created temporary rerouting of some water flow and would have caused some dirt to wash . . Such trivial matters are the natural consequences of permissible use of the dominant estate and cause no real damage to the servient estate for which recompense is due. * * *
“. . • In constructing the slab [for an air conditioning compressor on or near the common boundary] and in digging ditches for . . . service lines [to] the building, defendant clearly encroached upon plaintiff’s property with workmen and equipment, piled some dirt and debris across the line [on plaintiff] and also substantially disturbed the natural drainage, at least temporarily. Some twenty feet of an old fence were destroyed . . . Moreover, with such substantial disturbances of soil [by defendant in the construction of the building, less than 20 feet from the common boundary] . . . unnatural quantities and directional flow of water surged onto and across plaintiff’s driveway, depositing substantial quantities of clay soil . . . and washing out the ground cover of [plaintiff’s culvert] . Defendant was guilty of undue disturbance of existing conditions under Articles 660 and 667 of the Civil Code of negligent encroachment under [La.C.C.] Art. 2315, causing at least temporary damage to plaintiff and interference with [her] . . . use and enjoyment .
“. . . [Defendant] did not fully succeed in [its] effort [to maintain the natural watershed]. . . . [0]ne rather deep ditch has eroded . . . southeastward across the common line . [Substantial flow and erosion of soft ‘new’ dirt near the building has had the effect of collecting and ‘localizing’ water . to cause a specific burden on the servient estate ...
“. . . [M]ore than negligible erosion and washing ... has occurred . resultpng] in the deposit of several inches of [soil] onto plaintiff’s property, both in areas where natural flow formerly crossed and at other points not previously affected. . . . [A]t the very least there will be on the rear portion of plaintiff’s lot substantial areas of unsightly and disturbed surface not previously present. * * * ”

Defendant asserts the trial court erred in “refusing to consider” that utility company employees laid utility lines to defendant’s building and that plaintiff’s damages “could have been caused” by these employees [Spec. 1 and 7]. In view of the testimony of the defendant’s superintendent of the construction project that the ditches were dug by defendant’s employees, and statements made in the lower court’s written reasons for judgment that defendant encroached upon plaintiff’s property in constructing the slab for the compressor and in digging ditches for utility lines, and that the conditions caused by defendant were “compounded by activities of utility company workmen,” we find these contentions without merit.

Likewise, we find that the trial court did consider (1) the alleged heavy rainfall; (2) expert testimony as to the location of the boundary; (3) the age and condition of the fence on the common boundary; and (4) the alleged difference in color of the dirt on the rear of plaintiff’s property [Spec. 3, 4, 6 and 9],

The remaining contentions of defendant relate to whether its trespass was in moral and legal good faith; the legal superiority defendant enjoyed as the dominant estate for natural drainage purposes, and the effect on the measure of damage by plaintiff’s failure to produce expert testimony as to the labor and materials necessary to restore her property to the condition it was in before defendant began construction.

Defendant does not contest plaintiff’s peaceful possession of her property for more than one year prior to the institution of suit. Defendant contends that it cannot be found in bad faith because the trespass, if any, was neither forcible nor ill-intended and was not for the purpose of converting any of plaintiff’s property to its own use. While there was no conversion by defendant of plaintiff’s property, defendant’s actions in destroying a portion of the old fence and otherwise ignoring the boundary and driving and operating construction equipment sometimes on plaintiff’s land, constituted an illegal and reckless disregard of plaintiff’s rights. Plaintiff was deprived, however temporarily, of the peaceful and uninterrupted use and enjoyment of her property and defendant’s cries of good faith in an attempt to mitigate damages are of no avail.

Defendant’s actions legally constitute at least a quasi offense, for which defendant is responsible in damages. C.C. Art. 1934, Layne Louisiana Co. v. Superior Oil Co., 209 La. 1014, 26 So.2d 20 (1946).

Being the dominant estate of a servitude of drain does not relieve defendant from damages under the circumstances. The trial court found that defendant’s construction. caused its property to erode and create ditches near the building and onto plaintiff’s property which had the effect of collecting and localizing drainage onto plaintiff’s property. This increased the burden on the servient estate and caused some of the damage to plaintiff. C.C. Arts. 778, 667.

QUANTUM

Defendant also complains that the lower court erred in assessing damages at $2,000 and by not dismissing entirely plaintiff’s claim for damages as damnum absque inju-ria since plaintiff failed to prove or offer evidence of the “value” of her damage or the cost of restoring plaintiff’s property to its former condition.

The lower court said some of the damage caused by defendant had been ameliorated by time to a “considerable extent.” Construction began October of 1974, and was not fully completed when trial occurred on January 20, 1976. The more extensive damage to plaintiff’s property in the culvert area and in the northeast corner washing area, by the trial court’s findings, would require some expenditure of labor and material, and we infer, a considerably longer time to recover from the effects of the damage. Plaintiff herself repaired the damage to her driveway:

In Louisiana, only compensatory and not punitive or exemplary damages are recoverable for injury done to property. Angelloz v. Humble Oil & Refining Co., 196 La. 604, 199 So. 656 (1940).

Plaintiff here did not specifically allege damages for mental anguish. Plaintiff did allege general or “extensive” damages, deprivation of use and benefit of her property and, in connection with her injunctive demands, she alleged her “fear” that defendant would “continue” its operation which was causing her damage.

When plaintiff attempted to testify as to her mental anxiety arising from defendant’s actions, the lower court sustained defendant’s objection that such damages had not been specifically alleged. In view of the circumstances of this case and plaintiff’s general allegations, we believe the trial court erred in this respect and that it would have been proper to hear evidence about plaintiff’s anxiety.

In Layne Louisiana Co., supra, the Supreme Court observed that it is impossible to believe that a person suffering a flagrant violation of her property rights, would not, of necessity, be vexed and aggrieved.

In trespass cases of this type, mental anguish is not an item of special damage which must be “specifically alleged” under C.C.P. Art. 861, but is an item which may be considered under general allegations of damage and deprivation of use, such as are here alleged. Defendant could have, but did not, utilize the dilatory exception of ambiguity or vagueness under C.C.P. Art. 926 to make plaintiff itemize or specify her broad and general allegations of damage, deprivation and fear. Riley v. Carver General Ins. Agency, Inc., 279 So.2d 698 (La.App. 4th Cir. 1973), writ denied. Items or area's of damage which may be admissible under a general allegation of damage are not subject to the objection afforded by C.C.P. Art. 861, but are subject to the dilatory exception under C.C.P. Art. 926, which must be filed in limine or otherwise is waived.

Plaintiff is entitled to general damages under C.C. Art. 1934.

In the assessment of damages for an offense or quasi offense arising out of trespass, much discretion is left to the trial judge, but the damage must be certain and the discretion exercised only to the extent of the damage as ascertained from all the facts and circumstances. Angelloz v. Humble Oil Co., 196 La. 604, 199 So. 656 (1940). Considering all the facts and circumstances here, including the injury to plaintiff’s property, interference with her enjoyment of her property, and the anxiety that plaintiff, of necessity, experienced during the 16 or more months defendant conducted its operations, we cannot say that the lower court abused its discretion in determining the award.

We are obligated by C.C.P. Art. 2164 to render judgment which is just, legal and proper upon the appellate record, and while we do not adopt fully the trial court’s reasons for judgment, we believe the record supports the result below and here.

At appellant’s cost, judgment is

AFFIRMED.

      . The lower court noted that while there may have been some confusion as to the boundary at the beginning of construction, the boundary ’ was “thoroughly established shortly thereafter [and] . . . the construction activities clearly did cross the common boundary. It should also be noted that defendant’s construction superintendent admitted he instructed a dozen operators to go onto plaintiffs property to push down a tree (allegedly on defendant’s property) near the boundary without asking plaintiffs permission.

      . Plaintiff did briefly testify to her anxiety before defendant’s objection was sustained.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Thelma Crow WALKER, Plaintiff-Appellee, v. DON COLEMAN CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    No. 13042.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.

      Pugh & Nelson by Robert G. Pugh, Shreveport, for defendant-appellant.
    Egan & Cook by William H. Cook, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

The plaintiff-seller sued the defendant-buyer for rescission of a contract to sell Rainbow Plantation, a 250 acre tract of land in Bossier Parish. Defendant planned to subdivide the tract. The trial court held that the long delay in obtaining approval of the subdivision by the necessary governmental authorities, which approval was a condition of the contract, was not contemplated by the parties. Judgment was rendered giving the defendant a choice between waiver of that condition and rescission of the contract. Defendant appealed. We affirm.

Plaintiff is the testamentary executrix of her late husband’s estate. Due to pressing obligations brought about by debts of the estate and federal estate taxes, plaintiff borrowed $250,000 from the First National Bank of Shreveport. It was her intention to repay that loan from the proceeds of the sale of the principal asset of the estate, Rainbow Plantation. A sale of the plantation was the only possible means of paying the loan.

On December 7, 1973, she signed a contract to sell the property to Don Coleman Construction Company, defendant in the instant case. She was unable to obtain judicial approval of the sale over the objection of her daughter. In May, 1974, the loan from the First National Bank became due. Plaintiff has been paying over $50 per day in interest on the overdue loan since that time.

On December 20, 1974, plaintiff executed another contract to sell the property to defendant for a price of $1,530,000. Judicial approval was obtained over the objection of the daughter. The delay for the daughter to take a suspensive appeal from the judgment approving the sale expired. Appropriate zoning had previously been obtained and the purchaser had promptly made appropriate application for subdivision approval to The Department of Housing and Urban Development. The attorneys for both parties began preparation for closing. Then the unforeseen development which gives rise to this suit occurred.

In April, 1975, Don Coleman, president of the defendant corporation, was notified that federal agencies would require an environmental impact study of the proposed subdivision before issuing their approval for government insured mortgages. This was the first such study to be required in the Shreveport-Bossier area. Six months later, the Environmental Protection Agency advised that the impact study could not be completed until the study for the Red River Parkway in Bossier was completed. At the time of trial, the latter study had not yet begun and would take at least fourteen months to complete. The environmental impact study will then have to be completed and approval or disapproval of the purchaser’s plans remains uncertain.

After plaintiff received information about the studies and attendant delays, she asked defendant to either waive the governmental approval condition or to allow her to find another buyer. Defendant refused, and this suit followed.

In written reasons for judgment, the trial judge concluded that since no time for performance of the conditions of the contract was stipulated, a reasonable time is implied, citing LSA-C.C. Art. 2050. The court concluded that the lengthy delay under the circumstances of this case was unreasonable.

Defendant argues on appeal that a contract with an affirmative suspensive condition may be fulfilled at any time, provided that no time is specified in the contract, relying on LSA-C.C. Art. 2038.

Article 2038 provides:

“When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen.” (Emphasis supplied)

The contract established an affirmative suspensive condition. Defendant is not obligated to purchase the property until the necessary governmental approval is obtained. However, the second sentence of Article 2038 must be read in conjunction with LSA-C.C. Art. 2037:

“Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.”

The surrounding circumstances establish that plaintiff intended to sell her property as quickly as possible in order to pay off the bank loan and to have the remainder of the sales price invested. It is also established that neither party expected an environmental impact study on this property to be required. Coleman testified:

“Well, I certainly didn’t think I was going to be hit with an Impact Study.”

Neither party could have possibly anticipated that the environmental impact study would depend on the completion of the Red River Parkway Study. Completion of the studies and approval by the government agency cannot possibly be concluded in less than thirty-one months after the contract to sell was signed. Federal agencies have made it impossible for the condition of governmental approval to be performed in the manner that it is probable the parties intended. Under the special circumstances surrounding this contract, the parties intended that the condition be performed within a reasonable time. Despite the honest and diligent efforts of defendant, that cannot be done. It having been established that the condition cannot be performed in the manner intended by the parties, and defendant having been put in default, the condition must be considered as broken. Defendant’s obligation to buy is not subject to execution, and defendant having failed to waive the condition and perform the contract, after being put in default, the plaintiff is entitled to recision of the contract. Guichard v. Greenup, 259 So.2d 93 (La.App. 4th Cir. 1972).

Article ■ 2038 does not mandate that obligations may be indefinitely suspended due to uncontrollable circumstances not anticipated by the parties, especially when surrounding circumstances disclose that one or both parties considered time to be a crucial factor. A suspensive condition may “always” be performed, so long as it can be performed in the manner intended by the parties. The manner intended by the parties includes performance within a reasonable time, where the nature of the obligation and surrounding circumstances establish time as a substantial element in the manner of performance. Plaintiff made an adequate showing that neither she nor the defendant contemplated a delay of the length involved in this case.

An additional ground for rescinding the agreement is that there was an error in the principal cause of the contract. Error in the principal cause invalidates consent and is sufficient reason to rescind a contract. LSA-C.C. Art. 1825. Some motives can be determined from the inherent nature of the contract. In the instant case, the contract is an agreement to purchase and sell a tract of land. The immediate end of the buyer is to be able to use the land for his own purposes, in this case to develop a subdivision. The immediate end of the seller is to collect the purchase price of the sale. In this case, it was the expressed intention of both parties to accomplish these immediate ends as quickly as possible. The purchaser wanted to build his subdivision, and the seller urgently needed the money to repay the bank loan. Due to the actions of the federal bureaucracy, it has become impossible to fulfill these principal causes.

Failure of the parties to a contract to buy and sell to anticipate a lack of governmental approval of the purchaser’s planned use of the property has previously been held to constitute error in the principal cause of a contract. Marcello v. Bussiere, 284 So.2d 892 (La.1973). Failure to anticipate an unreasonable and indefinite delay in governmental approval should lead to the same result, as fulfillment of the principal cause is equally impossible. For that reason, we find: (1) performance of the contract within a reasonable time was a principal cause of the contract; (2) this cause was apparent both from the inherent nature of an agreement of purchase and sale of real estate and from the circumstances surrounding this particular contract; (3) the cause cannot be fulfilled due to events beyond the control of either party; and (4) the parties’ failure to anticipate the unreasonable delay was error of fact sufficient to vitiate their consent and invalidate the contract.

The trial court was also correct in denying plaintiff’s demand for damages. Defendant has not breached the contract. On the contrary, defendant has attempted in good faith to have the suspensive condition fulfilled. Defendant cannot be held liable for standing on the contract until it is declared null, and no bad faith on defendant’s part was alleged or proven. Therefore, the denial of damages is affirmed.

For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    T. M. THOMPSON, Plaintiff-Appellant, v. Mary THOMPSON, Defendant-Appellee.
    No. 13048.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    Bice & Russell by Charles B. Bice, Winn-field, for plaintiff-appellant.

      Madison, Files, Garrett, Brandon & Ha-maker by J. Lawrence Mullens, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   PRICE, Judge.

This is an appeal from the judgment rejecting the request of T. M. Thompson to grant him the custody of his four minor children whose custody was awarded to his former wife in a prior decree.

Thompson contends the custody should be changed because the defendant has failed to properly care for the children, to furnish them moral guidance, and to provide a suitable home environment.

T. M. and Mary Thompson were divorced in September, 1973, by an Arkansas decree. The four children of the marriage, Thomas Andrew (17), Gregory Monroe (10), Michael Layne (7), and William Thompson (5), remained in the custody and care of Mary Thompson who established her residence in Monroe. A judgment awarding her the permanent custody of the children .along with $700 per month for their support was rendered in Winn Parish in April, 1975. During their marriage, the parties resided in Winnfield where Thompson owns a pharmacy. He continues to reside there with his present wife in a mobile home located at the rear of his business establishment.

After trial, the district court concluded Thompson had not borne the burden of proving that the continuation of the custody of the children with their mother would be so deleterious to justify removing them from the environment to which they have become accustomed. The court also found Thompson had not shown he could provide a better home should he be awarded their custody.

The conclusions reached by the trial judge are in accord with the law and the evidence and are affirmed.

Thompson sought to prove his wife was neglecting the physical needs of the children, and was not providing a proper moral atmosphere by offering the results of a six months’ surveillance of his former wife’s activities begun shortly after she obtained the judgment in Winn Parish ordering him to pay support in the sum of $700 per month.

This evidence shows Mary Thompson has a continuing relationship with a single man whom she plans to marry. She frequently visits his apartment, and occasionally stays rather late.

However, the appellee testified she always prepares the children’s night meal and completes the necessary household work after returning home from her daily employment at an accounting office.

She contends the three younger children are cared for by either her seventeen-year-old son or a baby-sitter. Her boyfriend visits in her home at least two nights each week while the children are present. There is no evidence of any immorality on these visits.

The thrust of Thompson’s argument is that Mrs. Thompson spends so much of her off-duty time at her boyfriend’s apartment that she has placed her own desires before the needs of the children.

Thompson filed a complaint with the Ouachita Parish Division of Family Services which caused a preliminary investigation of Mrs. Thompson’s care of the children. The social worker who made the investigation testified that she found the care being furnished the children by their mother to be entirely satisfactory, and that the children appeared to be well disciplined and in good physical health.

Two of the Thompson children testified on trial of the rule. Ten-year-old Grég testified he would prefer to live. with his father in Winnfield because he was entertained more on his visits with his father. He denied that his mother left him or his younger brothers at home alone. He also testified his mother kept the home clean and properly fed and clothed the family.

The seventeen-year-old son, Andy, corroborated his mother’s testimony that he watched over the younger children in her absence except on the occasions a baby-sitter was engaged.

At most, the evidence offered by Thompson has established that Mrs. Thompson is away from the children several nights a week while engaged in social activities for her own pleasure. The evidence is not sufficient to show these activities have caused a serious neglect in the care of the children, or that she is morally unfit to have their custody. The trial judge properly rejected the demand to remove the children from her custody.

The judgment is affirmed at appellant’s costs.


text:
    Barbara CANNON, Plaintiff-Appellant, v. RICHLAND PARISH POLICE JURY, Defendant-Appellee.
    No. 13051.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    Crawford A. Rose, Jr., Rayville, for plaintiff-appellant.
    Thomas E. Cooper, Jr., Asst. Dist. Atty. Rayville, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

An applicant appeals from a judgment of the district court upholding the denial by the Richland Parish Police Jury of a permit for the retail sale of beverages of low alcoholic content. We affirm.

Plaintiff filed an application for a beer permit on November 20, 1975. On that date, the existing parish ordinance prohibited the sale of beer within 300 feet of a church. Plaintiff’s proposed location is more than 300, but less than 500 feet from a church. On December 16,1975, the Police Jury adopted an ordinance amending the prior ordinance to prohibit the sale of beer within 500 feet of a church. On December 23, 1975, the Police Jury advised plaintiff her application had been denied because of the prohibition contained in the ordinance adopted December 16.

Plaintiff filed suit pursuant to LSA-R.S. 26:302 alleging she was entitled to the permit under the ordinance in existence at the time her application was filed and alleging the Police Jury capriciously, arbitrarily and without legal cause denied the permit. The case was submitted to the trial court on a stipulation of facts and copies of pertinent documents. Pursuant to a written opinion, the trial court rendered judgment rejecting plaintiff’s demands. Plaintiff appealed.

No evidence beyond the stipulated facts cited above and the documents relating thereto was offered in support of plaintiff’s contention that the Police Jury’s action was arbitrary, capricious, and illegal. The Police Jury is specifically authorized by LSA-R.S. 26:280 to extend the location limitation from 300 to 500 feet between the premises sought to be licensed and the property lines of churches. The ordinance applies alike to all persons similarly situated. Although passage of the ordinance shortly after plaintiff’s application was filed strongly indicates the adoption of the amending ordinance was motivated by plaintiff’s application, it was nevertheless within the Police Jury’s express statutory authority and sound discretion to extend the limit and there is no evidence that its action in doing so was arbitrary, capricious, unreasonable, or illegal.

Plaintiff contends she is entitled to a permit because she met all qualifications of law at the time her application was filed and a subsequent change in the law cannot affect her right to a permit.

The rule of law established in zoning and building permit cases is that the filing of an application for a permit at a time when there is no legal basis for denying the permit does not give the applicant a vested right to the permit and the permit may be denied on the basis of an ordinance adopted subsequent to the application. In State ex rel. Manhein v. Harrison, 164 La. 564, 114 So. 159 (1927), it was held:

“Every one holds his property subject to the police power. Because a person applies for a permit at a time when it might be lawfully granted does not give him a vested right to the permit. An ordinance may be validly passed after the making of such application which would prohibit the issuance of the permit.”

See also Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).

The foregoing rule is applicable to permits for the sale of alcoholic beverages. The facts and law existing at the time the application is acted upon govern the applicant’s entitlement to a permit. A valid ordinance adopted subsequent to the filing of an application for a beer permit can serve as the basis for denying the permit, even though there was no legal basis for denying the permit at the time the application was filed.

Plaintiff contends the amending ordinance did not go into effect until after the 35-day period in which the Police Jury must act on applications as required by LSA-R.S. 26:283. The record does not bear out plaintiff’s contention as to the effective date of the ordinance.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: JONES, Judge.

text:
    Lawrence T. GATES, Plaintiff-Appellee, v. George DYKES d/b/a Dykes Motor Company, Defendant-Appellant.
    No. 13052.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    George L. Hayes, Jr., Shreveport, for defendant-appellant.
    Donald R. Miller, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff, Lawrence T. Gates, sued defendant George Dykes, doing business as Dykes Motor Company, for $1,425.75, the alleged cost of repairing redhibitory defects in a 1972 Chevrolet one ton pickup truck purchased by plaintiff from defendant. Defendant filed an answer alleging that the vehicle was not guaranteed and also setting up other defenses. Neither defendant nor his attorney appeared at the trial of the case. On discovering that the case had been tried and judgment rendered against him for $1,148.75, defendant filed a motion for a new trial, alleging that he had not been notified of the trial date. The motion for a new trial was denied, and defendant appeals.

We reverse and remand the case for a new trial for the sole purpose of determining the cost of acquiring and installing a motor in plaintiff’s truck comparable to the one he reasonably believed powered the truck when he acquired it from defendant.

In its reasons for denying a new trial the lower court stated that from an examination of the minutes of the court, the records of the Clerk and The Daily Legal News, the case had been properly set for trial in accordance with Rule 7(C) of the First Judicial District Court. Defendant does not assert a failure to set the case in compliance with the Rules of Court but takes the position that in accordance with customs prevailing among lawyers of the Shreveport Bar, he was entitled to actual notice of the setting.

There were unsuccessful attempts prior to trial by plaintiff’s counsel and the trial judge to locate defendant’s attorney and give him actual notice of the trial. Defendant’s attorney made no allegation that he requested a written notice of the trial date to which he was entitled under LSA-C.C.P. Art. 1572. The basis urged by defendant for a new trial does not come within the provisions of LSA-C.C.P. Art. 1972 where peremptory grounds for a new trial are set forth. The granting of a new trial under LSA-C.C.P. Art. 1973 is discretionary with the trial judge. In light of all the circumstances the trial judge did not abuse his discretion in refusing the motion for a new trial.

Plaintiff bought a one ton 1972 Chevrolet truck guaranteed to contain all original equipment (the vehicle was originally equipped with a 350 cubic inch engine). The truck was further guaranteed to have been driven only approximately 36,000 miles, and to be fully capable of pulling a four-horse goose-neck trailer. Shortly after plaintiff acquired the truck, he took a trip in it pulling a four-horse trailer, and found that the engine used 7 or 8 quarts of oil per 1,000 miles, would strain at a speed of 55 miles per hour on a level road and the truck would only travel 35 miles per hour up slight inclines. Plaintiff subsequently learned that the motor in the truck was not a 350 cubic inch engine, the original equipment provided in the truck, but was a 283 cubic inch engine normally found in a 1965 or 1966 Chevrolet automobile which provided grossly inadequate power for the truck to pull plaintiff’s trailer. These facts were all proven on the trial of the case.

Plaintiff’s cause of action is based upon LSA-C.C. Art. 2541 which provides:

“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”

Our jurisprudence has established that the proper amount of the reduction in price in an action asserted under this Code article is the amount of difference between the actual sales price and the price a reasonable buyer and seller would agree upon, knowing of the defects. Cost of repairs or replacement can be one method of arriving at this theoretical price. Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App., 3d Cir. 1975); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App., 4th Cir. 1974).

As proof of his damages, plaintiff offered into evidence a Red River Motor Company estimate reflecting that the cost of installing a new 1975 Chevrolet 350 cubic inch engine in plaintiff’s truck would be $1,148.75. Defendant assigns as error the trial court’s award to plaintiff of the replacement cost of a new 1975 350 cubic inch engine.

The trial court’s award of $1,148.75 was not the cost of replacing a 1972 350 cubic inch engine with 36,000 miles thereon in plaintiff’s truck.

The defendant also contends judgment was based only on a motor company’s estimate unsupported by the testimony of the preparer, which was inadmissible hearsay evidence.

Our jurisprudence has established that a repair estimate when not supported by the testimony of the expert who prepared it, is hearsay and of no probative value. Smith v. Doyle, 160 So.2d 791 (La.App., 3d Cir. 1964); Green v. Clark, 306 So.2d 396 (La.App., 4th Cir. 1975).

The judgment of the trial court for an incorrect amount based upon incompetent evidence is reversed. We remand this case for further proceedings for the sole purpose of determining the cost of acquiring and installing in plaintiff’s truck a motor comparable to the one he reasonably believed powered the truck which he acquired from defendant. Upon making this determination, the trial court shall render a judgment in favor of plaintiff for this amount.

The costs of this appeal are assessed equally against plaintiff and defendant.

Reversed and remanded.

      . 1976 La.Court Rules, First Judicial District Court Rule 7(C) provides: “In all other cases notice of the setting of a case for trial shall be given by publishing the trial calendar upon which such case appears in The Daily Legal News and posting a copy thereof in the office of the Clerk of this Court not later than the first judicial day following the motion hour at which such case is fixed for trial.”


author: CULPEPPER, Judge.

text:
    Emily BERTRAND, as Administratrix of the Estate of Bradley Keith Bertrand, etc., v. STATE FARM FIRE & CASUALTY COMPANY et al.
    No. 5470.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Hunt, Godwin, Painter & Roddy by David Painter, James Miguez, Raleigh Newman, Lake Charles, for plaintiffs and appellants.
    Stockwell, Sievert, Viccellio & Clements by Fred H. Sievert, J., Lake Charles, for defendants and appellees.
    Before HOOD, CULPEPPER and PETERS, JJ.
   CULPEPPER, Judge.

Following our original decision in this case on May 26, 1976 and the denial of plaintiffs’ application for a rehearing on June 9, 1976 (333 So.2d 322), our Supreme Court granted in part plaintiffs’ application for writs and remanded the case to us with the following statement:

“Writ denied in part, granted in part: No error of law is shown as to denial of damages sought; However, as to the ad-ministratrix’s claim for the funeral expenses of the child, not passed upon by the court of appeal, the writ is granted, and the case is remanded to the court of appeal for its determination of the issue.”

In her petition the administratrix alleges that the child drowned in the oxidation pond due to the negligence of the defendants in maintaining the pond as an attractive nuisance. Thus, the claim of the administratrix is made under LSA-C.C. Article 2315, which provides that the right to recover damages for wrongful death survives in favor of certain listed persons. The article does not name the succession representative as one of those in whose favor a wrongful death action survives. On the specific question of whether the administrator of the estate of the deceased can recover funeral expenses from the person who is alleged to be responsible for the death, two of our Courts of Appeal have held that the administrator has no such right, and our Supreme Court denied writs in both cases. See Young v. McCullium, 74 So.2d 339 (La.App. 1st Cir. 1954), and Collins v. Becnel, 297 So.2d 506 (La.App. 4th Cir. 1974). We find these decisions are correct.

For the reasons assigned, our original decision sustaining the exception of no right of action as to all claims by the administra-trix is reinstated. All costs are assessed against the administratrix.

CLAIM OF THE ADMINISTRATRIX FOR FUNERAL EXPENSES DENIED.


author: HOOD, Judge.

text:
    SWIFTSHIPS, INC., Plaintiff-Appellee, v. G. Wade BURDIN, Defendant-Appellant.
    No. 5658.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Earl H. Willis, St. Martinville, for defendant-appellant.
    Lippman, Hunter & Rawls by Dale P. Martin, Morgan City, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   HOOD, Judge.

Swiftships, Inc., instituted this suit against G. Wade Burdin to recover amounts alleged to be due plaintiff for repairing defendant’s boat. The trial judge rendered judgment in favor of plaintiff for $6,137.55. Defendant appealed.

The issues presented are (1) whether plaintiff is entitled to recover on quantum meruit despite its failure to prove the amount its labor and materials enhanced the value of defendant’s property, (2) whether the award is excessive, and (3) whether the trial court erred in assessing all costs to defendant.

Defendant Burdin is the owner of a forty-foot cabin cruiser, called the Big Dolphin I. Prior to October, 1972, the boat was equipped with a two part canopy, made of wood, canvas and aluminum. Defendant wanted to have the canopy removed and replaced with a one piece, all aluminum canopy.

Swiftships was engaged in the business of building and repairing ships in Morgan City. In October, 1972, Burdin brought his vessel to plaintiff’s place of business, and discussed with the production superintendent and another official of Swiftships his plan to install an all aluminum canopy on the boat. Plaintiff submitted to defendant a written estimate showing that the cost of materials and labor for installing the new canopy would amount to the total sum of $3,435.00. Defendant thereupon engaged plaintiff to remove the old canopy and install the new one. He paid plaintiff $700.00 at that time as a deposit.

Plaintiff’s estimate called for the use of “Bond 185 Excursion Edging” on the new canopy. That type of edging is described as being a round molding, with a slot cut in it which fits over the edges of the aluminum plate to cover the rough edges. The Bond 185 edging can be easily installed, since it can be bent around the edge of the canopy by hand and fastened by tack welding.

The Production Superintendent and the Supervisor, Decking and Cabin Department, of Swiftships testified that after the above agreement had been entered into and while the canopy was being constructed, defendant looked at the Bond 185 edging and decided that it was not massive enough for his pleasure boat, and he instructed plaintiff to install a different and larger edging. Plaintiff complied with those instructions, and the edging which was actually installed on the new canopy was larger and more massive than the Bond 185. The new edging had to be fabricated by plaintiff, requiring a solid weld all around the canopy, and it involved a substantial increase in the cost of labor and materials.

The construction of the new canopy was completed in about one month, and on November 21, 1972, plaintiff submitted to defendant an itemized statement of the cost of materials and labor, including taxes, amounting to the sum of $8,146.30. Defendant refused to pay that amount, contending that he had entered into a contract with plaintiff to construct the new canopy for the total sum of $3,435.00, that he had paid $700.00 on that contract and that he owed only a balance of $2,735.00.

Plaintiff thereupon instituted this suit demanding judgment against defendant for the sum of $7,446.30, that being the amount shown to be due in the above itemized statement, less the $700.00 deposit which defendant had made. Burdin answered, and he deposited $2,735.00 in the registry of the court, representing the balance which he contends is owed to plaintiff.

After trial, the trial judge held that an error existed as to the principal cause of the contract, and that no contract existed between the parties. He concluded, however, that plaintiff is entitled to recover on quantum meruit. He found that plaintiff’s estimated value of the materials and services rendered were “uncontroverted,” but he felt that plaintiff was not entitled to charge $1,038.75 as “overtime pay,” since time was not of the essence of the agreement. He deducted that sum from the amount claimed by plaintiff, therefore, and judgment was rendered condemning defendant to pay to plaintiff the remaining sum of $6,137.55.

On this appeal defendant Burdin apparently concedes that plaintiff is entitled to recover on a quantum meruit basis. He argues, however, that “the amount claimed by plaintiff exceeded the enrichment received by the defendant and should have been reduced.” He points out, correctly, that “there is no evidence whatsoever introduced by plaintiff to show the enrichment by the defendant.” He contends that the burden of proof rests on plaintiff to prove the amount of the enrichment resulting from the labor and materials furnished by it, that plaintiff has failed to meet that burden of proof, and that its claim thus should be rejected completely or at least reduced.

Quantum meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. Under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even in the absence of a specific contract therefor. LSA-C.C. arts. 1965, 2292-2294; Jones v. City of Lake Charles, 295 So.2d 914 (La. App. 3 Cir. 1974); Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975).

Generally, the plaintiff who establishes his right to be compensated on quantum meruit should recover as much as he reasonably deserves for his services, or for the labor and materials which he has furnished for the defendant’s benefit. The amount which he can recover on quantum meruit, however, is subject to a double limitation: (1) Plaintiff cannot recover more than the actual value of the materials and labor furnished for defendant, including a fair profit; and (2) plaintiff cannot recover more than the amount defendant was enriched by his furnishing of labor and materials. Custom Builders & Supply, Inc. v. Revels, supra.

The evidence in the instant suit shows that the actual value of the labor and materials furnished by plaintiff in constructing a new canopy for defendant’s boat was $8,146.30, as shown in the itemized statement submitted by plaintiff on November 21, 1972. There, in fact, .is no evidence in the record tending to show that any of the charges listed in that statement are excessive.

The trial judge correctly gave defendant credit for the $700.00 previously paid by him, and he also properly ordered that the deposit of $2,735.00 made by defendant into the registry of the court be paid to plaintiff to be applied to the judgment. It is unnecessary for us to determine whether the trial court erred in deducting the amount of overtime pay charged by plaintiff from the total amount claimed by it, because plaintiff has not appealed, and in the answer which it filed to defendant’s appeal it merely prays that the judgment of the district court be affirmed.

We agree with defendant that the evidence fails to show the amount by which the value of his boat was enhanced due to the construction of the new canopy. We do not agree, however, that the burden of proof rests on plaintiff to prove the amount by which defendant’s property was enhanced in value. The question of whether the cost of the services rendered by plaintiff exceeds the amount by which defendant has been enriched is one, we believe, which ordinarily should be raised as a defense to the action. Plaintiff bears the burden of proving the value of the labor and materials furnished by him, and we think he makes out a prima facie case for recovery on quantum meruit when he does that. If the defendant urges as a defense that the amount claimed by plaintiff exceeds the amount by which he has been enriched, then we believe that the burden of proof rests on defendant, and not the plaintiff, to prove that the sum claimed by plaintiff exceeds the amount by which he was enriched. In this case, defendant has failed to show that the amount of labor and materials furnished by plaintiff exceeded the enhanced value of the boat, and defendant thus is not entitled to have plaintiff’s claim reduced.

Defendant contends further, that although the evidence fails to show the enhanced value of the boat, it is reasonable to conclude that the charges pertaining to the edgings “should certainly not be over one hundred percent of the actual budget estimate contract signed on October 23, 1972.” We agree that the charges made by plaintiff for the edging on the canopy seem high. The trial judge also felt that “the figures exceed the enrichment received by the defendant,” although there was no evidence as to the amount of the enrichment, and partly for that reason he reduced the award by the amount of overtime wages charged by plaintiff. We have reviewed the evidence, and we cannot say that the trial judge erred in the award which was made to plaintiff.

Defendant contends, finally, that the trial judge erred in assessing all of the costs to defendant. He argues that the costs should be assessed equally between the parties, as was done in Custom Builders & Supply, Inc. v. Revels, supra.

The trial court has much discretion in assessing court costs. LSA-C.C.P. art. 1920. The appellate court also is authorized to tax costs as in its judgment may be considered equitable. LSA-C.C.P. art. 2164. The general rule is that the party cast in judgment shall pay all costs of the trial. LSA-C.C.P. art. 1920.

In the instant suit, considering the general rule that the party cast in judgment should pay all costs of the trial and the rule that the trial judge is vested with much discretion in assessing costs, we have concluded that the trial court did not abuse its discretion in assessing all costs of the suit to defendant.

The judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    John C. ROURKE, M.D., and Lee J. Marsalise, et al., Plaintiffs and Appellees, v. Victor E. COURSEY, Jr., Defendant and Appellant.
    No. 5661.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Sanders, Miller, Downing & Kean by Robert A. Hawthorne, Jr., Baton Rouge, Jones, Patín, Harper, Tete & Wetherill by James C. Hanchey, Lake Charles, for defendant and appellant.

      Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, for plaintiffs and appellees.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   CULPEPPER, Judge.

Defendant appeals from a judgment granting plaintiffs’ motion to dismiss without prejudice plaintiffs’ suit for a deficiency judgment.

The decisive issue is whether the trial judge abused his discretion in dismissing plaintiffs’ suit without prejudice after defendant filed an answer.

The record shows that defendant purchased from plaintiffs a large tract of land. $1,850,000 of the purchase price was represented by a promissory note secured by a vendor’s lien and mortgage. Defendant immediately sold the property to Trailwood Forest-Calcasieu, Ltd., a Louisiana corporation. On default in payment of installments on the note, plaintiffs filed suit for foreclosure by executory process. The property was seized and subsequently sold by the Sheriff of Calcasieu Parish on July 30, 1975.

Thereafter, plaintiffs instituted the present deficiency judgment proceedings against defendant. Defendant answered, alleging the sheriff’s sale was without appraisal according to law, and that therefore the Deficiency Judgment Act barred plaintiffs’ suit.

On October 10, 1975, defendant filed a motion for judgment on the pleadings, asserting that the pleadings show invalid ap-praisement at the sheriff’s sale barred plaintiffs’ suit for deficiency judgment. No ruling was ever made on this motion.

After defendant moved for a judgment on the pleadings, plaintiffs filed a motion for dismissal without prejudice. The ground asserted for this dismissal was that the July 30, 1975 sheriff’s sale had been declared null and was set aside by a judgment rendered on October 24, 1975 in a direct action instituted by Trailwood Forest-Calcasieu, Ltd. against plaintiffs and the Sheriff of Calcasieu Parish. Defendant was not a party to Trailwood Forest’s suit to annul the sale, and he received no notice of the proceeding. The judgment was by compromise with the consent of the parties and reserved the right of the present plaintiffs to file a second foreclosure proceeding.

The present plaintiffs filed a second suit for foreclosure by executory process. The subject property was again seized and sold at a second sheriff’s sale. A second action to recover a deficiency judgment is now pending in the District Court for the Parish of East Baton Rouge, the defendant’s domicile.

After hearing, the trial court granted plaintiffs’ motion to dismiss the present suit without prejudice, explaining its decision in written reasons as follows:

“The court exercises discretion granted by C.C.P. 1671 and dismisses the action without prejudice.
“To do otherwise would allow defendant a windfall.due to a technical error on the part of the third person. It would cost plaintiff possible valuable deficiency rights due to the same technical error. “Permitting the dismissal without prejudice, on the other hand, preserves whatever rights plaintiff may possess and the only possible detriment to the defendant debtor is the delay caused by new execu-tory proceedings.”

The statutory law applicable to the issue presented by this case is LSA-C.C.P. Article 1671:

“A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.”

Official Comment (b) under this Article explains that the plaintiffs’ right to dismiss after an appearance by the defendant rests within the sound discretion of the trial court. The trial court is given great latitude in deciding discretionary matters, and its decisions will be disturbed only when there has been a clear abuse of discretion. The trial judge, however is not granted unbridled discretion by Article 1671. The jurisprudence recognizes the rule that a trial judge cannot dismiss a suit without prejudice of substantive rights acquired by the plaintiff would thereby be lost. See Melancon v. Swift Agricultural Chemical Corporation, 289 So.2d 578 (La.App. 3rd Cir. 1974) and cases cited therein. Similarly, the trial court has no discretion to grant a dismissal without prejudice which would deprive defendant of a just defense. See Betz v. Hearin Tank Lines, 75 So.2d 356, 360 (La.App. 1st Cir. 1954).

Seeking to bring the facts of this case within the purview of these two latter rules, defendant argues that the dismissal violated his “substantive rights” to defend against the deficiency judgment action. Specifically, defendant argues that the dismissal deprives him of the right to assert the alleged illegality of the appraisement procedure followed at the first sheriff’s sale.

It is true that the dismissal thwarted defendant’s early attempt to assert this defense in his motion for judgment on the pleadings. The right to make the defense, however, was not lost or impaired, but was instead delayed. Defendant may urge the alleged illegality of the original appraisement as a defense to the deficiency judgment suit now pending against him, or he may bring a direct action challenging the validity of the first sheriff’s sale. Therefore, the dismissal without prejudice neither violated defendant’s substantive rights, not did it deprive him of a just defense.

Defendant argues further that the delay and additional costs associated with the second suit for deficiency judgment are grounds for holding that the trial judge abused his discretion in dismissing the original suit without prejudice. This argument is not persuasive. See Melancon and Betz, supra. Delay and increased costs are byproducts of every dismissal without prejudice. The delays and increased costs involved in the present case are not extraordinary or unreasonable.

Customarily, this Court reviews the merits of motions for judgment on the pleadings only after the trial court has ruled on them. There has been no ruling on defendant’s motion. Therefore, we must decline defendant’s invitation to review the merits of his motion for judgment on the pleadings.

For the reasons assigned, the judgment of the trial court granting plaintiffs’ motion to dismiss without prejudice is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Leon Joseph FRANKLIN, Plaintiff and Appellee, v. Mable O’Nishea FRANKLIN, Defendant and Appellant.
    No. 5662.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Michael Johnson, Cottonport, for defendant-appellant.
    Knoll & Knoll, by Jeanette T. Knoll, Marksville, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Defendant, Mable O’Nishea Franklin, appeals from a judgment awarding the permanent custody of her minor child, Leona Marie Franklin, to her former husband, Leon Joseph Franklin. We affirm.

Plaintiff originally sued his spouse for a judicial separation subsequent to an abandonment of him by the latter. Upon learning the whereabouts of his wife Mr. Franklin amended his petition seeking a divorce based upon grounds of adultery and further sought temporary and ultimately permanent custody of their minor child who was then in the physical custody of the wife-mother. Defendant accepted service and waived citation in the temporary custody proceedings pending the trial on the merits. Apparently she did not appear at the hearing on the rule for temporary custody and same was awarded to plaintiff.

Thereafter, the mother filed a rule for a change of custody and subsequent thereto a reconventional demand seeking a divorce based upon adultery and also sought permanent custody of the above-mentioned minor child.

Considerable evidence was adduced at the hearing on the wife’s rule to change custody, which request was eventually denied by the trial judge. On the merits, the divorce suits and permanent custody matters were submitted on the evidence adduced at the hearing on the rule by the mother to change the custody, and no further testimony was taken relative thereto.

The district judge granted plaintiff-husband a divorce from defendant based upon adultery of the latter and further awarded permanent custody of the minor child to plaintiff. Defendant appeals only the custody portion of the judgment. Plaintiff has answered the appeal seeking damages for frivolous appeal.

The marital domicile of the litigants herein was Bunkie, Louisiana. On or about October 9, 1975, defendant abandoned the marital domicile, taking her young daughter with her, and moved to Morgan City, Louisiana, where she and the child resided with her sister and brother-in-law at a trailer court. While in Morgan City, defendant engaged in numerous • sexual encounters with various individuals. On more than one occasion defendant committed adulterous sexual acts in the presence of the young child. Although Mrs. Franklin denies this fact, the evidence is clearly to the contrary. Furthermore, she frequented the company of a local motorcycle “club” known as the “Fawcees”. The leader of the “club”, Donald Dettman, alias “Speedy”, lived in a house (which defendant also frequented) with a female and two other club members known as “Uncle Dirty” and “Crazy”. Defendant admitted having sexual relations with Dettman while in Morgan City, and it is significant that the deposition of the latter was taken at Charity Hospital in New Orleans where he was recuperating from gunshot wounds received in an altercation with a member of another “club”.

Considerable evidence was taken concerning the wife’s general misconduct while she had custody of the child in Morgan City. We deem it unnecessary to further enumerate the details of said activity and choose to quote from the trial judge’s written reasons as follows:

“Her associations and her conduct, since their separation, while she had her child, in South Louisiana, was immoral, boldly indiscrete, and in this court’s view, highly unfit as a mother. .
. At this time, the child’s best interest, will be best served by leaving her in the custody of her father . . .”

There was also some testimony concerning the father’s unfitness as a parent, however, the evidence concerning the father was much less damaging than that directed toward the mother. In that regard the trial judge stated:

“While the conduct of the husband has not been ‘lily white’, at the present time, at least, it seems he is trying to provide a decent home and environment for the child now with him.”

Suffice it to say that the record amply supports the trial judge’s finding concerning the respective fitness of the two parents.

The defendant mother contends that the trial judge erred in failing to give proper consideration to the maternal preference rule. Our courts have declared that the rule is inferior and must yield to the overriding concern in all child custody cases, to-wit: the best interest and welfare of the children. See Nethken v. Nethken, 307 So.2d 563 (La.1975), in which the Supreme Court stated:

“Notwithstanding the wife’s paramount right over the husband to the custody of the young children, this right must give way to still another more paramount right — the best interest of the children themselves.”

See also Miller v. Miller, 336 So.2d 542 (La.App. 3rd Cir. 1976); and Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1975), writ refused La.1976, 329 So.2d 453.

Since the district judge explicitly held that the interests of the child were best served by leaving her with the father, the maternal preference rule offers no solace to the defendant herein.

Our courts have consistently held that in custody matters the trial judge’s determination is entitled to great weight. He is in the best position to evaluate the children’s best interest from his overview of the conduct and general character of the parties. Upon appellate review, the trial judge’s finding will not be disturbed absent a clear showing of abuse of his broad discretion. See Fulco v. Fulco, 259 La. 1122, 254 So.2d 603; Lemons v. Lemons, 325 So.2d 734 (La.App. 1st Cir. 1976); Bourque v. Leger, 322. So.2d 784 (La.App. 3rd Cir. 1975), writ refused La.1976, 325 So.2d 788.

Viewing the evidence in its entirety in light of the above cited rule, we are of the opinion that the award of custody of the minor child to the father was well within the discretion accorded the trial judge.

Plaintiff father has answered the appeal seeking damages for frivolous appeal.

Appeals are favored and the imposition of penalties for frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the view of the law which he advocates, even though the appeal lacks serious merit. See Guidry v. Carmouche, 320 So.2d 267 (La. App. 3rd Cir. 1975); Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973); Dupaquier v. City of New Orleans, 271 So.2d 78 (La.App. 4th Cir. 1972). Even a cursory study of the legal issues involved in this litigation indicates that the appeal is not frivolous. Accordingly, plaintiff’s claim for damages resultant therefrom is denied.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    FIRST NATIONAL BANK OF LAFAYETTE, Plaintiff-Appellee, v. DONI HOMES, INC., et al., Defendants-Appellants.
    No. 5663.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Fredric G. Hayes, Lafayette, for defendants-appellants.
    Bean & Rush by Ernest L. Parker, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

This is one of three cases consolidated for appeal, involving the same plaintiff, First National Bank of Lafayette, identical issues, and the same appellants. In this suit, docket # 5663, and in docket # 5674, the defendants are Doni Homes, Inc., Patrick J. Babineaux, Sr. and his wife, Mrs. Juanita Henderson Babineaux. In docket # 5678, the defendants are Pat’s Building Materials, Inc. and the same Mr. and Mrs. Babi-neaux, Sr. Separate opinions have been rendered this date in # 5674 and # 5678.

The plaintiff bank was granted deficiency judgments in the trial court, and Mr. and Mrs. Babineaux, Sr., guarantors of notes given by the two defendant corporations, have appealed.

It was stipulated that, in all three cases, the bank foreclosed against mortgaged property and it was sold after appraisal in accordance with the requirements of the Louisiana Deficiency Judgment Act, LSA-R.S. 13:4106-et seq. The bank purchased the property at the sale and subsequently resold it to third parties at a profit.

The Babineauxs contend on appeal that: (1) they should be given credit for the profit irtade by the bank on the resale of the property; or, in the alternative, their liability should be discharged because their right of subrogation against the mortgaged property has been lost by the act of the bank; and (2) the bank should not be able to collect the 25% attorney’s fees called for in the notes, but only the lesser amount actually paid the bank’s attorney.

The four promissory notes herein, exhibits P-1 through P-4 and the two notes involved in docket # 5674, exhibits A and B, are all executed as follows:

“DONI HOMES, INC.
BY: /s/ Patrick Babineaux. Sr. Patrick Babineaux, Sr., President”

In this record and in docket # 5674 is a “CONTINUING GUARANTY” executed by Patrick J.- Babineaux, Sr. and Mrs. Patrick Babineaux, Sr., which binds them in solido with Doni Homes, Inc. for any indebtedness to the bank.

There are three other promissory notes involved in docket # 5678. One, exhibit A, is executed:

“PAT’S BUILDING MATERIALS, INC.
BY: /s/ Patrick Babineaux. Sr.
Patrick Babineaux, Sr., President”
The other, exhibit B, is executed simply:
“/s/ Patrick J. Babineaux
PATRICK J. BABINEAUX”

The reverse sides of exhibits A and B show that they are secpred by another note, exhibit E, executed by Patrick Babineaux, Sr. and Juanita Henderson Babineaux.

I. The first issue is whether the Babineauxs are entitled to a credit for the profit realized by the bank; or, in the alternative, entitled to be discharged as to the balance of the debt. The Babineauxs’ counsel cites LSA-C.C. art. 3061 and Brewer v. Foshee, 189 La. 220, 179 So. 87 (1938) in support of their position.

Mr. and Mrs. Babineaux bound themselves in solido with the debtor corporation and have a primary obligation as distinguished from the secondary liability of the ordinary simple surety in the civil law. See the discussion in Chapter I, Louisiana Creditors’ Rights, by Ralph Slovenko.

In C. I. T. Corporation v. Rosenstock, 205 So.2d 81 (La.App. 4 Cir. 1967), a foreclosure sale where the surety was not named as a defendant, cited, or given formal notice of the seizure and sale released the surety’s liability. The surety in Rosenstock was a simple endorser rather than an in solido endorser; and he was not a party to the executory proceedings. In Brewer v. Fosh-ee, supra, the surety was held to be discharged by the creditor’s private sale of two mortgaged mules. The surety in that case was not notified of the non-payment of the note and the sale was not public as here. The Babineauxs, in contrast, were parties defendant in the executory proceedings and personally served with a notice of the seizure and date of sale of the mortgaged property.

A mortgage is an accessory obligation and the primary obligation can stand alone unaffected by the extinction of the mortgage. Purchase by the mortgage creditor at a judicial sale releases the mortgage without destroying the debt or affecting the right of the creditor to enforce payment of the balance, absent lack of notice to the debtor or some other circumstance not present here. Compare Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274 (La., 1975), which deals with solidary sureties under a continuing guaranty.

Here, Mr. and Mrs. Babineaux bound themselves, as well as the mortgaged property, for payment of these debts. When there is a foreclosure against mortgaged property, the amount to be applied to the debt secured by the mortgage is limited to the proceeds of the judicial sale. The fact that the purchaser, even though it be the mortgagee, afterwards sells the property for more or less than the amount realized cannot affect the sum to be applied to the debt. 55 Am.Jur.2d § 658. The debt is reduced or extinguished only to the extent of the amount obtained at the judicial sale, assuming no defect in the procedure.

II. The second issue is whether the Babineauxs are only bound to pay the actual attorney’s fees incurred rather than those called for in the notes. This question was decided in the case of Renshaw v. Richards, 30 La.Ann. 398 (New Orleans, 1878) as follows:

“He did not choose to bind himself for any fees that the mortgagee or holder of the notes might choose to pay his attorney; and therefore the obligation was that the fees should be fixed at five per cent on the amount sued for, absolutely and unconditionally without reference to any contract that the mortgagor or holder might make with his attorney, or to the amount which might actually be paid to the attorney.” 30 La.Ann. 400.

We believe that the reasoning of the Ren-shaw decision is as sound as it was then. The trial court correctly held that the Babi-neauxs were responsible for attorney’s fees as stated in the notes.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed against defendants-appellants, Mr. and Mrs. Patrick J. Babineaux, Sr.

AFFIRMED.

      . LSA-C.C. art. 3061:
      “Art. 3061. The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”


text:
    FIRST NATIONAL BANK OF LAFAYETTE, Plaintiff-Appellee, v. DONI HOMES, INC., et al., Defendants-Appellants.
    No. 5674.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Fredric G. Hayes, Lafayette, for defendants-appellants.
    Bean & Rush by Ernest L. Parker, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

The parties and issues in this suit are identical with those in our docket # 5663, First National Bank of Lafayette v. Doni Homes, Inc., et al., La.App., 338 So.2d 1202. For the reasons assigned in # 5663, the judgment of the trial court herein is affirmed at the cost of defendants-appellants, Mr. and Mrs. Patrick J. Babineaux, Sr.

AFFIRMED.


text:
    FIRST NATIONAL BANK OF LAFAYETTE, Plaintiff-Appellee, v. PAT’S BUILDING MATERIALS, INC., et al., Defendants-Appellants.
    No. 5678.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Fredric G. Hayes, Lafayette, for defendants-appellants.
    Bean & Rush by Ernest L. Parker, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

This is one of three cases consolidated for appeal, involving the same plaintiff, First National Bank of Lafayette, identical issues, and the same appellants. Defendants herein are Pat’s Building Materials, Inc., and Mr. and Mrs. Patrick J. Babineaux, Sr. For the reasons assigned in docket # 5663, First National Bank of Lafayette v. Doni Homes, Inc., et al., La.App., 338 So.2d 1202, the judgment of the trial court herein is affirmed at the cost of defendants-appellants, Mr. and Mrs. Patrick J. Babineaux, Sr.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Lauris BREAUX, Plaintiff-Appellee, v. CITY OF LAKE CHARLES, Defendant-Appellant.
    No. 5670.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Peter A. Ciambotti, Lake Charles, for defendant-appellant.
    P. Michael Maneille, Lake Charles, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, a fireman, employed by the defendant, City of Lake Charles, instituted this action seeking to recover a money judgment for the amount of longevity salary increases and accrued longevity salary increases allegedly due him under the provisions of LSA-R.S. 33:1992. At the time of trial it was stipulated by the parties litigant that if plaintiff’s contentions were valid, judgment should be rendered in his favor for the sum of $1773.09 plus longevity salary increases reckoning from January 1, 1976, together with legal interest on such sums due from August 27, 1974 until paid. The trial court rendered judgment in favor of the plaintiff pursuant to this stipulation. Defendant has appealed.

The uncontroverted facts, most of which were established by stipulation, reflect that plaintiff is presently employed by defendant as a Fireman First Class. On December 16, 1960 the plaintiff was initially hired by defendant as a fireman in the Lake Charles Fire Department. In December, 1963 plaintiff began receiving from defendant an annual two (2%) percent longevity salary increase as provided by LSA-R.S. 33:1992. The statute, cited infra, provides for annual longevity salary increases after three (3) years of “continuous service”. For personal reasons plaintiff resigned from the department on March 28, 1971. Plaintiff received annual longevity salary increases up to the time of his resignation. On October 13, 1971, plaintiff returned to work for defendant (plaintiff contends he was reinstated, defendant contends plaintiff was reemployed) as a Fireman First Class in the Lake Charles Fire Department.

Upon plaintiff’s return to the fire department on October 13,1971 the defendant and the State of Louisiana in determining plaintiff’s annual vacation and amount of supplemental pay gave him credit for his prior years of service with the Lake Charles Fire Department. The defendant granted him the annual vacation benefit of twenty-one (21) days provided by LSA-R.S. 33:1996, which is limited to fireman with ten (10) years of service. The Louisiana State Supplemental Pay Board certified the plaintiff on the date of his return to the Fire Department as eligible to receive the maximum supplemental pay of One hundred fifty dollars ($150.00), as provided in LSA-R.S. 33:2002, which is limited to firemen with six (6) or more years of service.

The defendant, City of Lake Charles, however, did not pay longevity salary increases to plaintiff after he recommenced his employment on October 13, 1971, through the next three year period which ended on October 13, 1974, contending that when plaintiff was reinstated or re-employed as a member of the fire department, it was again necessary for him to have three years of continuous service with such department before he was entitled to receive longevity salary increases.

The issue presented herein is whether a fireman receiving longevity pay increases under LSA-R.S. 33:1992, who resigns his position with the fire department and thereafter returns to his employment with the same fire department, is eligible to receive longevity pay from the time of his return, notwithstanding the break in his service.

LSA-R.S. 33:1992, the interpretation of which forms the basis of this appeal, states in pertinent part:

“From and after the first day of August, 1962, each member of the fire department, who has had three years continuous service shall receive an increase in salary of two percent and shall thereafter receive an increase in salary of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay.” (Emphasis^iirs)

Appellant contends that the provisions of the above quoted statute refer to one single period of time and service, and that the use of the word “additional” in the statute clearly means that each year is to be added on to the previous years in unbroken sequence. In other words, appellant contends that when the plaintiff resigned his position the time period or sequence was broken and when plaintiff returned to the fire department he had to requalify for the longevity pay increases. On the other hand the ap-pellee contends that having established his eligibility for longevity benefits by three years’ continuous service, he has earned the statutory right to such benefits “for each year of additional service up to and including 20 years” and that this right cannot be defeated by an interruption in service.

The trial court in well written reasons for judgment found for the plaintiff concluding that following a three year qualifying period of continuous and unbroken service a further period of continuous service is not required in order for a fireman to be entitled to longevity pay increases. The trial court reasoned:

“This is simply a case of legislative intent and, of course the best place to look for legislative intent is in the language itself. The key word in this statute is the word ‘continuous’ and it is conspicuous in its use and nonuse. It is specifically employed as one of the conditions for establishing eligibility for longevity pay. It is conspicuously absent a few lines later in that statute when the conditions for increasing longevity pay for additional service are defined. The legislature said that, once entitled to longevity pay a fireman ‘shall receive an increase in salary of 2% and shall thereafter receive an increase in salary of 2% for each year of additional service up to and including 20 years’, not for each year of additional continuous service up to and including 20 years”.

It is a well established principle of statutory construction that the meaning of a particular word, clause, or sentence must be determined in light of the statute as a whole, each being construed with respect to and in light of all other provisions to the end that the whole be construed in harmony with the purposes and object therein announced. B.W.S. Corporation v. Evangeline Parish Police Jury, 293 So.2d 233 (La.App. 3rd Cir. 1974); Danna v. Commissioner of Insurance, 228 So.2d 708 (La.App. 1st Cir. 1969) writs refused, 255 La. 283, 230 So.2d 588. Additionally, words used in a statute should be given their ordinary and usual signification. B.W.S. Corporation v. Evangeline Parish Police Jury, supra.

We are in agreement with the trial court’s interpretation of LSA-R.S. 33:1992, and in accepting the trial judge’s reasons as our own we find that he construed the provisions of the statute in accordance with the above stated legal principles.

Appellant argues that the provisions of LSA-R.S. 33:1992 and the provisions of Article 14 Section 15.1 of the Louisiana Constitution of 1921, which have been continued as a statute by Article 10 Section 18 of the Louisiana Constitution of 1974 are in pari materia and must be construed with reference to each other. Appellant then reasons that since under Article 14 Section 15.1(3t) of the 1921 Constitution in computing “seniority” the employment must be “continuous and unbroken by a resignation or discharge”, it necessarily follows that the statute under consideration must likewise be interpreted to mean that the service necessary to establish a fireman’s eligibility for longevity pay increases must likewise be continuous and unbroken. We find no merit to this contention. Even though such statutes be construed with reference to each other, we are here concerned with the interpretation of LSA-R.S. 33:1992, which concerns the remuneration due fireman, and not with, the statutory requirements necessary to establish seniority under civil service. So far as we have been able to ascertain from a reading of the cited statutes “seniority”, as such, has no bearing upon the determination of the compensation which is due a fireman under the provisions of LSA-R.S. 33:1992.

For the foregoing reasons the judgment appealed from is affirmed. Costs to be assessed against defendant-appellant subject to the limitations of LSA-R.S. 13:4521.

AFFIRMED.