text:
    Kenneth W. GAULTER v. Mary Liuzza GENNARO.
    No. 11232.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Louis R. Koerner, Jr., New Orleans, for Kenneth W. Gaulter, plaintiff appellee.

      Jesse P. LaGarde, Amite, for Mrs. Mary Liuzza Gennaro.
    Before LANDRY, PONDER and COLE, JJ.
   LANDRY, Judge.

Plaintiff Kenneth W. Gaulter (Appellant), appeals from judgment dismissing his possessory action against defendant Mary Liuzza Gennaro (Appellee), involving a strip of land approximately 23 feet in width and running about 500 feet along the southern boundary of Appellant’s estate. We affirm.

The issues presented for resolution are: (1)Did the trial court err in denying Appellant’s motion for summary judgment because of Appellee’s alleged conversion of the suit into a petitory action by asserting title to the disputed strip; (2) Whether the trial court erred in failing to find that Appellant established sufficient possession to support a possessory action; and, (3) Whether the trial court erred in admitting testimony concerning location of the boundary between Appellant’s property and that of Appellee which bounds Appellant’s estate on the south.

On April 3, 1973, Appellant filed suit alleging actual, corporeal, peaceful and continuous possession as owner, since January 10, 1970, until Appellee’s disturbance thereof in July, 1972, of the following described property:

“The North Vi of the NW Vi of the NE Vi of Section 29, T4S, R7E, situated in the Parish of Tangipahoa State of Louisiana, LESS .30 acres in a road, 1.00 acres belonging to Joe Liuzza and LESS .31 acres in the SE corner.”

Appellant also alleged the existence of a fence denoting a portion of the southern boundary of Appellant’s tract and the northern boundary of Appellee’s adjoining land, which fence was allegedly destroyed by Appellee on July 31, 1972, and the erection of a new fence in place thereof at a point approximately 23 feet north of the prior boundary fence. In addition, Appellant urged that the destruction of the old fence, the erection of the new fence and Appellee’s clearing of the intervening strip constituted a disturbance of his possession and interfered with his use and enjoyment of his property.

APPELLANT’S MOTION FOR SUMMARY JUDGMENT

In answering Appellant’s petition, Appellee generally denied Appellant’s alleged possession and affirmatively asserted that Appellee erected a fence “on her own property”. Appellant maintains this averment of ownership converted his possessory action into a petitory action in which Appel-lee, as the party claiming ownership, bears the burden of establishing title.

This issue must be determined in the light of LSA-C.C.P. Articles 3657 and 3661, which pertinently provide:

LSA-C.C.P. Article 3657

“When, except as provided in Article 3661(1) — (3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.”

LSA-C.C.P. Article 3661

“In the possessory action, the ownership or title of the parties to the immovable property or real right is not at issue. No evidence of ownership or title to the immovable property or real right shall be admitted except to prove:
(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.”

Appellee’s simple allegation that she constructed the fence “on her property” does not constitute a formal claim of title sufficient to convert a possessory action into a petitory action. On the contrary, we find this claim is made merely in support of Appellee’s claimed right to possess as owner as permitted by Article 3661(1) above. See also Haas Land Co. v. O’Quin, 187 So.2d 208 (La.App. 3rd Cir. 1966); Voisin v. Luke, 234 So.2d 862 (La.App. 1st Cir. 1970).

Since Appellee’s answer did not convert the action into a petitory action, the trial court properly denied Appellant’s motion for summary judgment.

PROOF OF POSSESSION AND ALLEGED DISTURBANCE

To prevail in a possessory action, plaintiff must establish: (1) Possession of immovable property at the time a disturbance occurs; (2) Possession by himself and/or his ancestors in title quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) A disturbance in fact or law; and (4) That his action was brought within a year of the disturbance. LSA-C.C.P. Article 3658.

A disturbance of possession which gives rise to a possessory action may be either a disturbance in fact or in law. A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property from enjoying his possession quietly, or which constitutes an obstacle to his enjoyment of same. LSA-C. C.P. Article 3659.

Possession necessary to maintain a pos-sessory action must be either corporeal possession of an immovable or civil possession thereof preceded by corporeal possession by the possessor or his ancestors in title, by one who possesses for himself whether in good faith or bad, or even as a usurper. LSA-C. C.P. Article 3660.

Corporeal possession required to maintain a possessory action, contemplates actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

The elements and characteristics of actual possession required to maintain a possessory action, vary with the nature of the property and other attending relevant circumstances. Hill v. Richey, above.

On January 10, 1970, Appellant and his wife purchased from the Salvatore DiVin-centi heirs, a tract of land containing 29.04 acres situated in Tangipahoa Parish, bounded on the south by lands of Appellee. Appellant’s lands were corporeally possessed by his ancestors in title prior to Appellant’s acquisition. Similarly, Appellee’s property was corporeally possessed by her predecessors in title. Both parties were in actual personal possession of their respective properties at all times relevant to this action.

At the time of Appellant’s purchase, the remnants of an old fence commenced in the vicinity of the southeast corner of his tract and ran westerly a distance of about 500 feet. Appellant contends this was the boundary fence between his lands and those of Appellee. Conversely, Appellee maintains this fence was located about 25 feet south of her northern boundary and was the remains of an old cattle or garden enclosure rather than a boundary fence. The fence ran partly through a slough or low place in the land which had in effect become a thicket overgrown with hedges, briars and trees, including some pine trees and a disputed number of oak trees. This thicket extended approximately 20 to 25 feet north of the fence above mentioned. Appellant refers to the fence as the “pecan tree fence” primarily because there was a line of pecan trees in the fence area.

After purchasing his tract, Appellant leased it for farming. His lessee cultivated the land to within 5 or 6 feet north of the hedge line. Appellant, his wife and family picked berries and pecans along the “pecan tree fence line” during season, and sold their harvests from the time of Appellant’s purchase until July, 1972 when Appellee’s son-in-law, Benny Capdeboscq, bush hogged the thicket and removed all briars, trees, hedges and bushes. Mr. Capdeboscq also removed the fence and erected a new fence approximately 23 feet further north. The new fence runs approximately 450 feet to the west where it turns south and joins an existing fence on Appellee’s property to form an enclosure for cattle. It is conceded that Appellee has had physical possession of the area between the old and new fences since the latter fence was built.

Mrs. Gaulter testified she was taken on the property by one of her vendors, Louis DiVincenti, prior to her purchase of the land. She was shown a marker situated at the southeast corner of her tract from which point she noted a fence running westerly along a hedge line, including numerous pecan trees, a distance of about 500 feet. She was told this fence marked the boundary of the land. She noted the fence was made of railroad cross tie posts. She added that after purchasing, the land was leased to a tenant who farmed the land up to a point only five or six feet north of the fence line. She further stated that during season she and her family picked pecans and berries from the bushes and trees on the fence line.

Appellant’s version of the location and condition of the slough, fence and overgrown area was corroborated by two of Appellant’s vendors, Rose DiVincenti Genusa and Luis DiVincenti, both of whom were very familiar with the land. Mrs. Genusa stated the pecan tree fence had been considered the boundary for more than 60 years, although she had not been on the land in the last two or three years. She recalled a large pecan tree at about the midway point of the fence. Mr. DiVincenti admitted he had not been in the area in question during the last 20 years. He was aware that a pecan tree grew in the fence line; that the fence ran through a slough partially on Appellee’s property. Although he had no knowledge of the location of the new fence, he was emphatic in the statement that it if were moved anywhere beyond the location of the old fence, it was on someone else’s property.

Charles Edwards, County Executive Director, U.S. Department of Agriculture, was tendered by Appellant as an expert in the interpretation of aerial photographs. From such photographs taken November 13, 1967, he fixed the southerly limits of cultivation by Appellant’s ancestors in title. We find his testimony of doubtful probative value, principally because the scale of the examined photographs was one inch to 660 feet, and Mr. Edwards conceded he could not locate the pecan tree fence in the pictures. He also acknowledged that the scale made it very possible to err a few feet in either direction in attempting to fix the limits of cultivation.

Appellee’s brothers, Steve and Henry Liuzza, testified in essence that the true boundary fence disappeared some 30 to 35 years ago. They stated that neither Appellant nor his ancestors in title cultivated the area between the pecan tree fence and the new fence within the past 15 years, and that Appellant’s tenant cultivated only to the new fence line. They also stated the strip in dispute was covered with briars, and that the only pecan trees ever in the area are those situated approximately 25 to 50 feet south of the new fence, which fence was erected on the basis of a survey made at Appellant’s request.

Clifton Webb, Surveyor, was called by Appellee. He testified over Appellant’s objection, that he was requested by Appellant to retrace Appellant’s lines and locate the corners of Appellant’s property. Using pri- or surveys, he found markers delineating the western boundary. He could not, however, find eastern boundary markers where the previous surveys indicated they should be. He located what he believed to be the southeast and southwest corners of Appellant’s tract. He found the southeastern corner fell south of the new fence, and the southwestern corner fell north of the new fence line. He concluded the new fence did not run parallel to the southern boundary because it intersected and crossed his projected southern boundary.

Appellant relies on the principle that possession of the part by the record owner of property constitutes possession of the whole. On this basis, it is contended that since Appellant has had possession through his ancestors and on his own since his acquisition, he is deemed to possess to the limits of his land. Bolding v. Eason Oil Company, 248 La. 269, 178 So.2d 246 (1965). While we recognize the principle as well established law, we deem it not controlling in this instance. We so find because Appellee, being equally in possession of her adjoining tract, may also urge and claim the benefit of this same rule. We deem it further evident that in a case of this nature, possession must depend upon actual physical possession of a nature sufficient to give notice that the occupier intends to possess to limits, either natural or artificial, and which may be determined with reasonable certainty-

The trial court did not favor us with written reasons for his judgment. Since Appellant’s demands were rejected, we assume the trial court concluded Appellant failed to establish the nature and type of possession required by law, because all other elements of a possessory action appear to have been conclusively established in this instance.

We concur in what we believe to be the basis of the trial court’s decision. Appellant’s alleged possession of what amounts to a hedge line and overgrown area separating adjoining lands is nebulous to some degree. The mere seasonal picking of berries and pecans along an overgrown hedge line area separating adjoining estates, situated at the rear of each property is not sufficient public notice to support a possessory action. We find this especially so where, as here, the type of possession exercised is not sufficient to indicate with reasonable certainty the extent of possession intended.

We find no merit in Appellant’s contention that the trial court erred in admitting testimony concerning the location of the boundary between the adjoining estates. The trial court properly admitted this testimony on the premise that in a possessory action, evidence of title or ownership is admissible for the restricted purpose of showing possession by a party as owner, and the extent and duration of such possession. LSA-C.C.P. Article 3661.

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

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Elvin L. CAMPBELL et ux. v. Barbara WOMACK (Koen) et al.
    No. 11120.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 30, 1977.

      John R. Rarick, St. Francisville, for appellants.
    John E. Coleman, Jr., and James R. McClelland, Franklin, for appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This suit was brought by Elvin Campbell and his wife for damages resulting from breach of contract and embarrassment, humiliation and mental anguish, sustained by Mrs. Campbell as a result of the defendants’ refusal to admit Mrs. Campbell to her husband’s motel room. The defendants’ motion for summary judgment was granted and the action was dismissed. From this dismissal, plaintiffs have appealed.

Plaintiff, Elvin Campbell, is engaged in the sand and gravel business. Since the nature of his business often requires his absence from his home in St. Francisville, Mr. Campbell generally obtains temporary accommodations in the area in which he is working. For this purpose, Mr. Campbell rented a double room on a month to month basis at the Rodeway Inn, in Morgan City, Louisiana. The room was registered in Mr. Campbell’s name only.

From time to time, Mr. Campbell would share his room with certain of his employees; in fact he obtained additional keys for the convenience of these employees. It also appears that Mr. Campbell was joined by his wife on some weekends and holidays, and that they jointly occupied his room on those occasions. However, Mrs. Campbell was not given a key to the motel room. On one such weekend, Mrs. Campbell, arriving while her husband was not at the motel, attempted to obtain the key to her husband’s room from the desk clerk; Barbara Womack. This request was denied, since the desk clerk found that Mrs. Campbell was neither a registered guest for that room nor had the registered guest, her husband, communicated to the motel management, his authorization to release his room key to Mrs. Campbell. Plaintiffs allege that this refusal was in a loud, rude, and abusive manner. After a second request and refusal, Mrs. Campbell became distressed, left the Rodeway Inn, and obtained a room at another motel. Mr. Campbell later joined his wife at the other motel, and allegedly spent the weekend consoling her. Shortly thereafter, suit was filed against the motel and the desk clerk, Barbara Womack.

Plaintiffs’ main contention is that Mrs. Campbell was entitled to a key to her husband’s room since she had acquired the status of a guest from her previous stays with her husband in the motel room. The leading pronouncement in Louisiana on the creation of a guest status is found in Moody v. Kenny, 153 La. 1007, 97 So. 21 (1923). There it is stated at page 22:

“. . .a mere guest of the registered occupant of a room at a hotel, who shares such room with its occupant without the knowledge or consent of the hotel management, would not be a guest of the hotel, as there would be no contractual relations in such case between such third person and the hotel . . .”

Plaintiffs would have us conclude from this statement that once the motel management gained knowledge on the previous occasions that Mrs. Campbell was sharing the motel room with the registered occupant, the motel was thereafter estopped to deny Mrs. Campbell the key to that room. The fallacy of this argument is apparent, since under it even a casual visitor to a hotel guest’s room would be entitled to return at a latter time and demand a key to the guest’s room, so long as the hotel management had knowledge of the initial visit.

The motel clerk was under no duty to give Mrs. Campbell, a third party, the key to one of its guest’s rooms. In fact, the motel had an affirmative duty, stemming from a guest’s rights of privacy and peaceful possession, not to allow unregistered and unauthorized third parties to gain access to the rooms of its guest, (cf. LSA-C.C. art. 2965-67). This duty is the same regardless of whether we consider the contractual relationship one of lessor-lessee or motel-guest.

The additional fact that Mrs. Campbell offered proof of her identity and her marital relation with the room’s registered occupant does not alter her third-party status; nor does it lessen the duty owed by the motel to its guest. The mere fact of marriage does not imply that the wife has full authorization from her husband at all times and as to all matters, (LSA-C.C. art. 2404). Besides, how could Mrs. Campbell prove to the motel’s satisfaction that the then present marital situation was amicable? This information is not susceptible of ready proof.

The plaintiffs further contend that since the rental contract was entered into during the existence of their marriage it was therefore a community asset, and that Mrs. Campbell was entitled to the use of the motel room based on her rights in the community. We need not reach the issue of Mrs. Campbell’s community property rights in the motel room, since under the clear language of LSA-C.C. art. 2404, she had no right to enforce the rental contract.

Having found that Mrs. Campbell was not entitled to demand a key to the motel room, and further that no authorization to admit her was communicated to the motel by her husband, there was no breach of contract.

In view of the foregoing, we need not reach the defendants’ contention that there was another occupant in the room, whose rights they were protecting.

The summary judgment procedure is designed to avoid the delays and expenses of a trial on the merits when no genuine issue exists as to material fact and the moving party is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The burden is on the mover to show that there is no dispute regarding facts material to the suit. And since the motion for summary judgment is not a substitute for a trial on the merits, any doubt regarding the existence of genuine issues of material fact should be resolved in favor of trial on the merits. Roy & Roy v. Riddle, 187 So.2d 492, (La.App. 3rd Cir. 1966).

The affidavits submitted by each side demonstrate that the only issues in dispute are, did Mrs. Campbell share her husband’s motel room, and did the motel have knowledge of this? Neither issue is material to this suit since regardless of how they are resolved, the plaintiffs cannot prevail. When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 376 (La.1976).

Accordingly, the trial court properly granted defendants’ motion for summary judgment.

For the reasons assigned the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      . The motel bill was sent to and paid by Pearce & LeBlanc, Inc., as part of the expense of a joint venture with Mr. Campbell. The designation on the checks issued to the motel was “Campbell-Gravel.” This, coupled with the fact that Mr. Campbell was accompanied by an employee when he rented the room, gave the mistaken impression that two men occupied the room.


author: COLE, Judge.

text:
    EDELMAN SYSTEMS, INCORPORATED, et al. v. CAPITOL GMC, INCORPORATED, et al.
    No. 11165.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused July 1, 1977.

      R. Gray Sexton, Baton Rouge, of counsel for plaintiff-appellee Edelman Systems, Inc.
    John C. Miller, Gerald L. Walter, Jr., Baton Rouge, of counsel for defendant-ap-. pellant and third party defendant Capitol GMC, Inc. .
    Henry D. Salassi, Jr., Baton Rouge, John B. Noland of Breazeale, Sachie & Wilson, New Orleans, of counsel for defendant-appellant and third party defendant General Motors Corp.
    William Luther Wilson, Baton Rouge, of counsel for third party defendant Beno Truck Equipment, Inc.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

In this suit, Edelman Systems, Inc. (Edel-man), seeks to rescind the sale to it of a 1973 Chevrolet van-truck due to alleged redhibitory defects in the vehicle. Both the seller and the manufacturer are joined as defendants in the principal demand. The defendant-seller, Capitol GMC, Inc. (Capitol), filed third party demands against the manufacturer, General Motors Corporation (GMC), and Beno Truck Equipment, Inc. (Beno), the supplier and installer of additional accessory equipment.

The trial court granted judgment, in favor of the plaintiff and against Capitol and GMC for a reduction, of the sales price measured by the cost of repairs, and attorney’s fees. The trial court maintained Capitol’s third party demand against GMC but dismissed its claim against Beno after a new trial on that particular demand. Capitol and GMC appeal the decision; Edelman answers seeking a rescission of the sale rather than a reduction in the sales price, and an increase in attorney’s fees.

The principal contentions of appellants are that the trial court erred in holding that it is presumed that the vehicle was treated properly and not abused, and further erred in holding that the proof employed by ap-pellee was sufficient to make out a prima facie case. These contentions raise the basic issue of whether appellee sustained its burden of proving that a redhibitory defect existed at the time of the sale.

Edelman Systems, Inc., purchased the van from Capitol on November 5, 1973, for the purpose of making long-distance deliveries of computer systems. Capitol contracted with Beno for the installation of various items of accessory equipment, most notably two saddle-type auxiliary gas tanks.

At trial the only witness called by the plaintiff was Don Outler, the field service manager, who introduced in conjunction with his testimony, various repair invoices pertaining to repairs made on the vehicle. Outler, however, had never driven the truck and had no personal knowledge of any defects, breakdowns, or repairs necessitated by such defects or breakdowns. The defendants stipulated to the authenticity of the repair invoices only to the extent that they evidenced that certain enumerated repairs were made on the subject vehicle at the cost indicated. The defendants objected to any hearsay regarding the existence of any defect mandating repairs not within the personal knowledge of Outler.

After offering the testimony of Outler and the repair invoices, plaintiff rested its case. The defendants rested without presenting any rebuttal evidence.

The plaintiff’s burden of proof in redhibition cases is set forth in Louisiana Civil Code Article 2530 which provides:

“The buyer who institutes the redhibi-tory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

Jurisprudentially, the necessary proof is articulated in Peters v. Pattison Pontiac Company, 259 So.2d 99 (La.App. 4th Cir. 1972), as follows:

“To maintain an action of redhibition, the plaintiff must prove that the vendor sold a thing to him, that the thing contained a hidden vice, not apparent by ordinary inspection, which subsequently rendered the thing unfit for use, that the vice existed at the time of sale, and that the vendor did not advise him of it.” (259 So.2d at 101)

However, it is well settled that the plaintiff need not necessarily introduce expert testimony. As quoted with approval in Crawford v. Abbott Automobile Company, 157 La. 59, 101 So. 871 (La.1924):

“ ‘It is not incumbent upon the buyer to seek out, allege and prove the particular and underlying cause of the defects which make the thing sold unfit for the purpose intended, particularly when the thing is a complicated piece of machinery; but it suffices if he alleges and afterward proves as a fact that such defects exist.’ ” (101 So. at 872)

While he need not prove the underlying cause of the malfunction, it is still necessary that he prove the existence of the malfunction at the time of the sale. Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Grayson v. General Motors Corporation, 309 So.2d 373 (La.App. 2nd Cir. 1975); Rey v. Cuccia, 298 So.2d 840 (La.1974); Cleveland v. Chrysler Motors Corporation, 259 So.2d 450 (La.App. 4th Cir. 1972); Crawford v. Abbott Automobile Company, supra. The defect, if proven, may in certain situations be presumed to have existed at the time of the sale. See Louisiana Civil Code Article 2530; Rey v. Cuccia, supra.

In the instant case, the defendants contend that part of the burden of proving that a defect does exist requires that the plaintiff show that the failure or defect manifested itself during normal use and that the vehicle was properly maintained and not subjected to abuse. The plaintiff failed to prove that the mechanical problems occurred under normal use and that the vehicle was not subject to abuse. For the proposition that the trial court erred in holding that it is presumed that the vehicle was treated properly and not abused, defendants cite Clark v. McBride Dodge, Inc., 289 So.2d 841 (La.App. 4th Cir. 1973); Peters v. Pattison Pontiac Company, supra; Brown v. Mid City Motors, Inc., 248 So.2d 27 (La.App. 1st Cir. 1971); Ditta v. Polk Chevrolet, Inc., 196 So.2d 672 (La.App. 1st Cir. 1967).

Although we are tempted to treat this subject matter, particularly as to how the question of abuse is construed in its relationship to proof of the underlying cause of a defect in complicated machinery, we find it unnecessary to do so in the instant case. We do note, however, that unlike the present record in which the issue of abuse was not raised, in the cases relied upon by counsel for defendants, supra, the issue of abuse was before the trial court. It is either unclear as to how the issue was raised or, as in the Ditta case, it was raised by the defendants. We, therefore, seriously question the validity of defendants’ assertion that the cited cases are authoritative for the proposition that in all redhibition actions a part of the burden of proving that a defect exists requires the plaintiff to show that the failure or defect manifested itself during normal usage and that the thing sold was properly maintained, i. e., that there was no abuse.

We now hold that the plaintiff herein did not establish a prima facie case of a redhibitory defect, and our decision is premised on the following reasons.

The plaintiff seeks to prove the existence of defects at the time of the sale by merely introducing numerous repair invoices covering approximately two and one-half years without any probative testimony, expert or lay, as to the nature of the defects necessitating the repairs. All of the repairs of any consequence were made by others than the defendants and the cause therefor is not within the knowledge of the defendants. No testimony was furnished as to the operation of the truck, mechanical problems, or maintenance. The trial court characterized the unusual presentation of the evidence as follows:

“ * * * Apparently, the answer to this unusual presentation is that counsel for the plaintiff felt that he had established a prima facie case and was withholding his evidentiary hole cards for rebuttal. Defense counsel, on the other hand, further compounded this mystical situation by failing to submit any witnesses who were obviously familiar with servicing of the truck. Indeed, it appears that the defendants have taken the position that the entry of documentary evidence alone, without an expert explanation, is no proof at all. Consequently, the strategy employed by respective counsel leaves the Court with something less than desired in having to arrive at a decision based upon well worn and threadbare legal postulates such as burden of proof and presumptions instead of based upon a thorough presentation of all available evidence.”

Because the burden is on the plaintiff initially to establish a prima facie case, the failure to establish such a case defeats his cause of action. The burden does not shift to the defendant until a pri-ma facie case has been established by the plaintiff by a preponderance of the evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (La.1971). The repair invoices merely establish that certain repairs were made and, as noted, were made essentially by third persons. Within the factual context of this case, fair inferences may be drawn from such repairs other than that they arose from defects in the vehicle existing at the time of the sale. For example, some of the repairs may have indirectly resulted from the accident in which the vehicle was involved. Other major repairs may have resulted from ordinary wear on the vehicle beyond the 12,000 mile warranty period. Still other major repairs may be attributed to improper work performed by third persons or from improper maintenance. To allow the plaintiff to establish a prima facie case on such evidence places an undue burden on the defendant who has no personal knowledge of the repairs. Further, the failure of the plaintiff to call the drivers of the truck who had firsthand knowledge of the maintenance and mechanical problems of the truck results in an unfavorable presumption. Mid City Finance Company v. Coleman, 232 So.2d 918 (La.App. 4th Cir. 1970).

This Court recognizes that in some instances a prima facie case of redhibition may be established by the introduction into evidence of various repair invoices establishing the nature and cost of the work performed. However, such evidence must be carefully scrutinized and found to have warranted a predominant inference of a vice or defect existing at the time of sale. When other reasonable inferences of equal weight may be drawn from such documentary evidence as to the cause of malfunctioning, a prima facie case is not established. The quality of proof is dependent upon the peculiar facts and circumstances in each case. Here, we do not find that the proof offered was sufficient to sustain plaintiff’s burden of proving that a redhibi-tory defect existed at the time of the sale.

For the foregoing reasons, the judgment of the trial court is reversed, at appellee’s cost.

REVERSED AND RENDERED.


text:
    Janet GAUTREAUX v. Edward Thomas ALLEN.
    No. 11176.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Ronald L. Menville, Houma, for plaintiff-appellee.
    Joe H. Dixon, Jr. and Bernard E. Bou-dreaux, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This suit arises from a habeas corpus proceeding brought by the mother of a child against the child’s biological father. The district court granted custody of the child to the mother. The father appeals.

Plaintiff-appellee, Janet Gautreaux, was married to Jimmy Wade Lucas oh February 20, 1965. In late 1968 or early 1969, the plaintiff physically separated from Lucas. Shortly thereafter she began living with Edward Thomas Allen, the defendant-appellant.

On October 9, 1972, while living with the defendant, but still married to Lucas, the plaintiff gave birth to the child who is the subject of this custody contest. There is no dispute that the defendant is the biological father of the child.

In April, 1974, the plaintiff ceased living with the defendant. On March 11, 1976, she obtained a divorce from Lucas in order to marry her present husband, Reuben Gau-treaux, whom she married on March 20, 1976. The plaintiff’s writ of habeas corpus was filed on March 81, 1976, at which time the child in question was in the custody of the defendant.

When the plaintiff left the defendant’s domicile in April, 1974, she took the child of the relationship with her and retained physical custody of the child until October 9, 1974. There, is a dispute between the parties as to who had custody of the. child from this date until the time of trial on April 21, 1976, and as to the manner by which the custody of .the child was transferred between the parties.

Apparently, on October 9, 1974, the child’s birthday, the defendant went to Cameron where the plaintiff was living with her parents to see the child. On that day, the plaintiff was going to Houma, the defendant’s domicile, to look for a job. The plaintiff agreed to allow the defendant to keep the child for the day, at the end of which she would pick him up. However, on the night of October 9, 1974, when the plaintiff went to pick the child up, an altercation arose between the plaintiff and a female companion of the defendant. As a result, the plaintiff was convicted of simple battery and placed on probation for one year. In any event, the defendant obtained the physical custody of the child on this occasion.

Plaintiff did not visit the child after October 9, 1974, except on four or five occasions in March, 1975, when she kept the child for a few days at a time with the defendant’s permission. She did not see the child between March and November, 1975. Beginning in November, 1975, she again began to keep him for a few days at a time at regular intervals. The defendant refused to allow her to see the child from January, 1976, until the date of the trial.

The plaintiff contends that she never voluntarily agreed to allow the defendant to keep the child. She claims that the infrequent visits were a result of the defendant’s refusal to allow her to see the child. Immediately following the altercation resulting in her probation, the plaintiff claims the defendant threatened to have her put in jail if she tried to take the child from his control.

The defendant, on the other hand, claims that the plaintiff voluntarily surrendered the child to his control, because she wanted to work offshore. He also claims that she was free to visit the child any time during this period.

■ The defendant urges that the trial court erred in awarding the custody of the child to the mother based on the conclusion that since the husband of the mother is presumed to be the father of the child, the biological father has no legal claim to custody-

Without basing its decision on the question of the legal paternity of the child, the trial court in its written reasons discussed several Louisiana cases involving questions of paternity. This discussion evidently was in response to the contention by the plaintiff that, because the defendant had not rebutted the presumption that the husband of the mother is the father, he had no standing as the biological father to claim custody of the child.

While the issue of paternity may have an effect upon the application of the rule that parents have the paramount right to custody, in a habeas corpus proceeding for custody of a child, it has no effect on the right of the party to claim custody. District courts have authority in habeas corpus proceedings to determine who is entitled to legal, as well as physical custody. Wood v. Beard, 290 So.2d 675 (La.1974); Cawthorne v. Williams, 313 So.2d 915 (La.App. 2nd Cir. 1975) (habeas corpus proceeding for custody brought by natural father against natural mother; custody award to natural paternal grandparents); Borras v. Falgoust, 285 So.2d 583 (La.App. 4th Cir. 1973) (unsuccessful habeas corpus filed by mother against foster parents); Robertson v. Robertson, 243 So.2d 847 (La.App. 2nd Cir. 1971) (custody awarded to aunt).

We agree with the statement by this Court in State ex rel. Stokes v. Stokes, 222 So.2d 573 (La.App. 1st Cir. 1969):

“ * * * We find no prohibition, statutory or jurisprudential, that would prevent a person other than a parent from seeking legal custody of a child. * * * (222 So.2d at 577)

It is clear that the trial court did not base the award of custody on the issue of the child’s paternity. In its written reasons, wherein it disposes of defendant’s contention that plaintiff is unfit to be awarded custody, it is apparent that the basis of the decision was a determination that the best interests of the child would be served by awarding custody to the mother. We quote:

“The child in these proceedings is less than four years old. Because the child is still of tender age and there has been a change in circumstances in the mother, the best interest of the child would be served by awarding custody to the plaintiff.”

In cases involving custody of children, the paramount consideration in determining to whom custody should be granted is the welfare and best interest of the children. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Howard v. Howard, 339 So.2d 1275 (La.App. 1st Cir. 1976); Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1975); Whatley v. Whatley, 312 So.2d 149 (La.App. 1st Cir. 1975); Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974); Lambert v. Lambert, 286 So.2d 390 (La.App. 1st Cir. 1973).

The general rule is that the best interest of the children, especially very young children, will be served by granting custody to the mother, unless she is shown to be morally or otherwise unsuitable to have custody. Fulco v. Fulco, supra; Howard v. Howard, supra; Meyers v. Meyers, supra; Gulino v. Gulino, supra; Nugent v. Nugent, 232 So.2d 521 (La.App. 3rd Cir. 1970).

The determination of the trial judge in custody cases is entitled to great weight. His exercise of discretion will not be disturbed on review, except upon a clear showing of an abuse of the discretion granted him. Fulco v. Fulco, supra; Howard v. Howard, supra; Nugent v. Nugent, supra.

The defendant contends that the best interest of the child Would be served by awarding him custody, because the mother is morally or otherwise unsuitable. Defendant points to various prior acts of alleged misconduct as evidence of plaintiff’s present unsuitability to have custody. For example, he cites the incident of October 9, 1974. Further, he alleges that the plaintiff voluntarily abandoned the care and custody of two other children of her marriage to Lucas. However, the record indicates that these children were removed from her home at a tender age without her knowledge or, consent, and she was unable to ascertain their location for approximately six years. When she finally located the children-, they had been placed in a foster home. They did not recognize the plaintiff as their mother, and they seemed to be well cared for and well adjusted. Accordingly, she decided that it would be in their best interest to remain in the foster home.

As stated by the trial court, custody is not to be determined in order to punish a parent for past misconduct. Johnson v. Johnson, 331 So.2d 854 (La.App. 1st Cir. 1976). However, past misconduct may form an important consideration in determining present suitability. Borras v. Falgoust, supra.

In the instant case the trial judge determined that the plaintiff had undergone a change in circumstances and that she was presently fit to be awarded custody. As noted by the trial court, “She has remarried and her present husband is both willing and able to provide a good home for the child.” Moreover, the child in question is of tender age and his best interest would be served by a custody award to the plaintiff in accordance with the law prevailing in this state.

For the foregoing reasons, we find that the trial court did not abuse its discretion in awarding the custody of the child' to the mother. Therefore, the judgment of the trial court is affirmed, at the appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana Through DEPARTMENT OF HIGHWAYS v. L. B. PONDER, Jr.
    No. 11183.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 10, 1977.

      William W. Irwin, Jr., (Trial Atty.), Jerry F. Davis, Johnie E. Branch, Jr., Bryan Miller, Baton Rouge, for Dept, of Highways, plaintiff appellant.

      J. Lynn Ponder and Frank Koles, L. B. Ponder, Jr., Amite, for L. B. Ponder, Jr., defendant appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Pursuant to the authority granted by La. R.S. 48:441, et seq., the Department of Highways instituted proceedings on November 27, 1963, to expropriate six parcels of land owned by L. B. Ponder, Jr., totalling 28.295 acres for use on the 1-55 and Louisiana Highway 40 interchange near Independence in Tangipahoa Parish. The land expropriated came from an original 128-acre tract from which smaller parcels that totaled approximately 25 acres had previously been sold. After the taking, nine parcels remained which totalled approximately 74.7 acres.

The plaintiff, Department of Highways, deposited the sum of $7,539 in the registry of the court for the property expropriated. The defendant-landowner withdrew the amount deposited and answered the plaintiff’s petition of expropriation contesting the adequacy of the amount deposited by the plaintiff for the property taken, and for severance damages to the remainder. Originally, the defendant claimed that $1,000 per acre was just and adequate compensation for the part taken based on a highest and best use as residential and business sites. The trial of the matter was delayed for several years. In 1971, the defendant amended his answer to increase his demand for compensation for the part taken to $2,000 per acre based on an alleged highest and best use as sand and gravel-producing property.

The trial court in written reasons concluded that the highest and best use was as sand and gravel property and fixed the compensation for the part taken at $1,500 per acre, or $42,442.50. The trial judge also awarded $100 per acre as severance damages for the 74.7 acres, amounting to $7,470. From the total award of $49,912.50 the court deducted the $7,539 already deposited and withdrawn by the defendant. The plaintiff appeals from this judgment.

The initial issue in this appeal is the question of what is the market value of the land taken at the time of the taking. The resolution of this issue is dependent upon a proper" determination of the highest and best use of the land taken.

Also at issue is the question of whether any damages were caused to the part remaining arising from the severance, and, if so, whether any special benefits inured to the remaining portion to offset any severance damages.

MARKET VALUE OF PART TAKEN

The landowner is entitled to “just and adequate compensation” for the expropriation of his land. Article 1, § 2, Louisiana Constitution (1921). The jurisprudence prevailing in this state is that such compensation is measured by the monetary equivalent of the property taken, or the market value. State, Department of Highways v. Crow, La., 286 So.2d 353 (1973).

Market value has been defined to mean “. . . the worth of the land considered in the light of its best and highest use, this being the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future.” State, Department of Highways v. Rapier, 246 La. 150, 155, 164 So.2d 280, 282 (1964); Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3rd Cir. 1972).

The use of the land considered in determining market value must be one which has a bearing on the market value at the time of the taking, in that it is one which would be considered by a willing buyer as affecting the market value. Lafayette Airport Commission v. Roy, supra at 467.

Applying the above-mentioned principles, it is clear that the market value attributed to the property by the trial court is manifestly erroneous. The record fails to support the trial court’s conclusion that the highest and best use of the subject property was for sand and gravel production. Additionally, there is no basis for a valuation of the property based on such a use.

The defendant-landowner presented the reports and testimony of three real estate appraisers, all of whom testified as to the market value of the land based upon a highest and best use as small acreage, rural residential or commercial sites. The trial court in written reasons stated that it was impressed that the defendant’s appraisers were realistic. However, their testimony was disregarded in reaching a conclusion. Instead, the trial court arrived .at a market value determination based on the use of the land for sand and gravel production.

To support his contention that the highest and best use of the land was for sand and gravel production, the defendant presented numerous witnesses and reports. The defendant hired Etco Engineers and Associates to perform soil borings to determine the amount of sand and gravel available on the subject property. Stafford Wallace, Etco’s field supervisor, testified that he made only two sample borings on the property. However, Wallaeé was not a geologist and did not perform any of the tests on the samples collected.

William LeCorgne testified concerning the test results on the two boring samples. The samples indicated various amounts of sand and gravel at varying depths. The report did not give the total percentages of sand and gravel for the borings. For example, the first boring indicated that at a depth of from 18 to 20 feet there existed a stratum of white sand and pea gravel. At a depth of 20 to 35 feet the stratum contained 40 percent gravel and sand. Boring No. 2 contained 40 percent gravel of one-fourth inch and greater at a depth of 28 to 30 feet. These percentages did not cover the entire depth of the boring, but only covered the distances indicated.

LeCorgne admitted that he was not qualified to evaluate the test results in terms of the feasibility of operating a sand and gravel pit on the property. In fact, the defendant offered no witnesses who could testify as to the economic practicality of sand and gravel production on the property based on the test results of the Etco borings.

On the other hand, the Department of Highways conducted twenty-four test bor-ings to evaluate the sand and gravel concentrations on the subject property. The Department’s tests were conducted under the supervision of George Cramer, geologist for the Department of Highways, and the borings were drilled over the entire area in question. The test results demonstrated that the sand and gravel-bearing strata in the area were non-continuous. The borings further indicated that the largest concentration of gravel one-fourth inch and larger present in any of the borings was 26 percent. The largest concentration of gravel meeting the specification standards of the Manual of the Louisiana Department of Highways (three-eighth inches or larger) was 10 percent. In order to be used in State projects, gravel must meet these specifications.

Discrepancies between the Highway Department’s report and the Etco report resulted for several reasons. First, the definition of “gravel” used by the two reports was different. The Etco report classified as gravel anything passing through a No. 10 screen, whereas the Highway Department considered anything between a No. 10 and a No. 4 screen to be coarse sand. The Highway Department considered gravel as anything passing through the No. 4 sieve (one-fourth inch or larger). Also specification (spec) gravel was considered as three-eighths inch or larger. The Etco report did not make a determination of the concentration of spec gravel on the property. Further, the Etco report evaluated the percentage of sand and gravel by each stratum alone, whereas the Department of Highways’ report evaluated the percentages by stratum, and then recalculated to determine the total percentages of each boring.

The only witness presented to analyze the feasibility of sand and gravel production in terms of the test results of either the Etco report or the Department of Highways’ report was Robert Waldron, a witness for the plaintiff. Waldron, a consulting geologist with personal experience in the sand and gravel mining business, was present at the drilling of a number of the sample borings and made visual observations and notes. Waldron relied upon the test results of the Department of Highways’ tests because he had more confidence in the technique used therein than in the Etco report for the following reasons: the equipment used, the number and depth of the borings made, and the more thorough classification of the samples obtained.

The uncontradicted testimony of Waldron indicates that a successful operation needs to produce approximately 30 percent of spec gravel (three-eighths inch or larger). According to Waldron, sand and gravel could not be economically mined on the subject property because of several factors including: the lack of a high market for sand in the area; the thickness of the clay overburden which averaged 14 feet on the tract and which must be removed before mining efficiently; the leanness of the gravel-bearing strata; and the high cost of equipment required to mine the subject property. Consequently, Waldron concluded that a prudent operator would not lease the property for mining purposes.

The defendant contends that the Etco report demonstrates a sufficient percentage of gravel to justify mining operations on the subject property. However, the Etco report did not even figure the percentage of three-eighths inch gravel needed to forecast the feasibility of production.

To support his contention that the land had a potential use as sand and gravel-mining property, the defendant offered the evidence that adjacent and nearby lands have operating gravel pits on them (referred to as the “Kinchen pit” and the “Siragusa pit”). The trial court relied heavily on the existence of these operations. It is noted that both the Kinchen and the Siragusa pits only came into existence in 1968 or 1969, well after the taking in 1963; and both operations functioned because of the special benefit of having had the overburden removed for use by the Highway Department as fill on road-building projects, thus saving these operations the expense of removing the clay overburden. Also, as discussed previously, the gravel-bearing strata in the area were non-continuous. At best these operations are of little probative value in determining the highest and best use of the subject property.

After erroneously determining that the best and highest use of the property taken was for sand and gravel, the trial court accorded the land a market value based on this use. However, the record is void of any valid evidence of market value based on its use for sand and gravel mining. The trial court in its written reasons stated that the defendant’s witness, Fred Anderson, testified that the best use was for sand and gravel mining and placed a value on the property of $2,000 per acre. Yet, our review of the record reveals that Anderson had no knowledge of any exploratory work done on the subject property and stated that he would not rely on either test submitted in evidence. Furthermore, Anderson made no appraisal of the value of the property for sand and gravel purposes.

The trial court, in fact, did not base its award on the alleged appraisal of Anderson, but awarded $1,500 per acre for the property taken. There is no basis for this award in the record. The trial court bases this award on “testimony as to equal value, royalty valuation and the income approached method.” The trial court cites State v. Crow, supra, to indicate that such a method of valuation is controlling. As discussed above, however, the record contains no evidence as to “equal valuation” of the land as sand and gravel property, nor does the record contain any evidence upon which to base market value under the capitalization of income method. Edward Smith, accountant for the Kinchen mine, testified for the defendant as to the royalties produced by that gravel operation. . However, no effort was made to relate this evidence, to. the subject tract’s income-producing potential. Also, no evidence was introduced as to any past income produced by the property.

Having found that the record fails to support the best and highest use of the property for sand and gravel mining, it is necessary to determine the correct highest and best use. It is evident from the testimony of both real estate appraisers for the plaintiff and all three for the defendant that' the actual best and highest use of the property was either for small rural home or commercial sites. However, a problem arises concerning the correct market value of the property taken because of the wide discrepancy in the appraisals submitted by the plaintiff’s and defendant’s appraisers.

Chester Driggers, one of the plaintiff’s appraisers, presented a revised appraisal of $9,155 for the entire part taken. This amount results from varying per acre valuations of from $250 to $525 per acre for the portions of the part taken, because he considered them as separate real estate entities. To arrive at a market valuation, he used approximately fifty comparable sales from the surrounding area, with special attention to sales up and down Louisiana Highway 40. He properly disregarded the only three comparable sales used by the defendant’s appraisers, because as a result of attempts to confirm the sales, he reached the conclusion that the sales were not “arm’s length” or “market” transactions. Driggers adjusted the comparables used slightly to compensate for the time differential between the time of the sales and the date of the taking, because it was his opinion that land values in the area from 1958 to 1963 showed only a normal increase, not a “boom.”

Max Derbes, appraiser for the Department of Highways, made a revised appraisal of $8,672 for the area taken. His result was also based on various values of from $300 to $600 per acre for portions of the part taken based on size and location. Derbes discounted the same comparables as Driggers, based on the lack of “open market” evidence. The sales from the subject property which Derbes made reference to included pales of , from one .to five-acre tracts at a value of from $200 to $250 per acre. Additionally, Derbes did not use as a comparable sale one omitted by Driggers. This was a sale of .459 acres at a unit value of $1,089 per acre from the subject tract to be used for a church. Derbes adjusted this amount based on his opinion that such a small parcel would sell at two or three times the amount of the larger tract.

All three appraisers presented by the defendant used basically the same three comparable sales from the defendant’s tract. These sales included: (1) the sale of the plot for the church; ■ (2) the sale of a five-acre tract at a unit value of $750 per acre (in spite of evidence that it contained improvements); and (3) the sale of a one-acre plot for an alleged but disputed priee of $3,000 for use as a bar (in spite of indications that this purchase price included the building and the land). Kermit Williams appraised the property at $750 per acre. Curtis Book and Robert Spec McClendon appraised, the property at $800 per acre.

Our review of the record indicates that the defendant’s appraisers did not use valid comparables in making their appraisals. While we are impressed with the reason, logic and thoroughness of, the plaintiff’s appraisers, Chester Driggers and Max Derbes, we do not feel that they made adequate adjustment of the comparables used to compensate for the increased value caused by the time differential; nor do we feel that justification exists for giving the various portions of the subject property different market valuations. Accordingly, we find the market value of the part taken to be $500 per acre. The resulting award for the 28.295 acre tract is $14,147.50.

SEVERANCE DAMAGES

Under La.R.S. 48:453, prior to its recent amendment, the burden is upon the owner of land taken, to prove severance damages to the property remaining by showing that the value of the remaining land has been diminished by the taking. State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970).

Severance damages are those damages done to the remaining property because of its severance from the expropriated portion. Hatcher v. Gulf States Utilities Company, 219 So.2d 208 (LaApp. 1st Cir. 1969).

Such damages are normally calculated by determining the difference between the market value of the remaining portion immediately before and immediately after the taking. State Through Department of Highways v. Hoyt, 284 So.2d 763 (1973); State, Department of Highways v. Nisbet Properties, Inc., 309 So.2d 398 (La.App. 2nd Cir. 1975).

Once severance damages have been proven the expropriating authority may offset these damages against any special benefits received by the property as a result of the taking. State, Department of Highways v. Crow, supra; State, Department of Highways v. Nisbet Properties, Inc., supra.

Here, the defendant has failed to prove that the remainders sustained any damage as a result of their severance from the part taken. Moreover, the plaintiff has carried its burden of proving that special benefits were received by the remainders which would more than offset any alleged damages.

The trial court’s award of $100 per acre for each of the remaining 74.7 acre tracts is without basis in the record. Of the five appraisers appearing, only one testified that the remainders sustained severance damages. McClendon’s opinion was that the damages amounted to $200 per acre, not $100 per acre. On the other hand, the remaining four appraisers, including two of the defendant’s own appraisers, testified that any damages to the remainders were more than offset by the special benefits accruing to the remaining portions. These benefits included the obvious special benefit of close proximity to an interstate highway interchange. Therefore, we find that the trial court’s conclusion that the remaining property sustained severance damages of $100 per acre which were not offset by special benefits is manifestly erroneous.

The plaintiff contends that the trial court committed error in awarding excessive amounts for the defendant’s expert witness fees. The fees which were fixed by the trial court were as follows:

Robert Spec McClendon $450.00
Curtis C. Book 650.00
Kermit Williams 650.00
Ed Smith 150.25
Fred Anderson 450.00
William LeCorgne 450.00

The fixing of expert witness fees is within the discretion of the trial court, and no change should be made unless we find an abuse of that discretion. Monroe Redevelopment Agency v. Merkel, 321 So.2d 429 (La.App. 2nd Cir. 1975); State, Department of Highways v. Beauregard Development Company, Inc., 279 So.2d 787 (La.App. 3rd Cir. 1973). After reviewing the record, we have determined that the trial court did not abuse its discretion in awarding expert witness fees.

For the foregoing reasons, the judgment of the trial court is amended to reduce the award to the defendant to the sum of $14,-147.50, subject to the credit of $7,539 previously deposited. The net amount due defendant shall bear legal interest at the rate of 5 percent per annum from November 27, 1963, until paid. The costs of these proceedings are taxed to the defendant-appel-lee.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The Department claims that it seized 28.295 acres from a total acreage of 85.843 acres, thus leaving remainders totalling 57.548. This discrepancy apparently results from the contention that portions of the western tract were unaffected by the seizure. This difference in total acreage before and total acreage remaining, however, has no effect on the outcome of this case.


author: ELLIS, Judge:

text:
    Laura Beatrice Waddell HARVEY v. Melba L. HARVEY et al.
    No. 11196.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 30, 1977.
    Hamilton B. Willis, St. Francisville, for plaintiff and appellee.
    William E. Woodward, Jackson, Ralph M. Kelton, Baton Rouge, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This suit started out as a possessory action, coupled with a demand for damages, brought by Mrs. Laura Beatrice Waddell Harvey against Melba L. Harvey, Sr. and Worth Austin. Plaintiff alleges herself to be in possession as owner of the following described parcel of land:

All of that certain piece or parcel of ground with all rights, ways, privileges and appurtenances thereto or anywise appertaining and more particularly described as lot 6 of the partition of the Estate of Fluker and bounded on the North by other lands of petitioner (formerly other portions of the Fluker Estate) bounded Easterly and Southernly by Chamber’s Bluff (formerly Thompson’s Creek) and by Thompson’s Creek and bounded West by Hammer’s Creek said parcel being roughly triangular in shape and bounded along the western of Hammer Creek side by lands formerly of Bockel, lands formerly of F. Harvey, lands formerly of Robert Harvey said tract being located approximately in Sections 73 and 74, Township 3 South, Range 1 West, St. Helena Meridian, Greensburg Land District and being located in the Parish of West Feliciana State of Louisiana as shown by map recorded September 22, 1879 at Book S Page 170 in the conveyance records of the Clerk of Court of the Parish by plaintiff’s ancestors in possession who possessed as owners, a copy of pertinent portion of which is attached herewith and incorporated by reference.

She further alleges that defendant Austin, acting under authority of a lease from defendant Harvey, disturbed her possession on May 20, 1974, by permitting cattle to roam thereon, causing damage to plaintiffs pasture.

In their answer defendants allege that the property owned by plaintiff is described as follows:

A certain piece or parcel of land, with all the buildings and improvements thereon, and all the rights, ways, privileges, servi-tudes and advantages appurtenant thereto or in anywise appertaining, situated in the Second Ward of the Parish of West Feliciana, Louisiana, containing 240 acres, more or less, and being bounded (now or formerly) on the North by the Estate of John F. Ard, Jr., on the East by Thompson Creek (now Chamber’s Bluff), on the South by Thompson Creek, and on the West by Hammer Creek; being a portion of Lot No. Six (6) of the Partition of D. F. Fluker, as appears by reference to map recorded in Book S-2 folio 170, of the conveyance records of West Feliciana Parish, Louisiana; being the same property acquired as per deeds recorded in Book 45, folio 573, Book 46, folio 1, and Book 46, folio 102, of the conveyance records of West Feliciana Parish, Louisiana.

As plaintiffs in reconvention, they allege that defendant Harvey is the owner of the following described property:

A certain tract or parcel of land, together with all buildings and improvements thereon and all rights, ways, privileges, servitudes and prescriptions appurtenant thereto or in anywise appertaining, lying, being and situated in Sections 37 and 38, T3S, R2W, and in Sections 74 and 75, T3S, R1W, Parish of West Feliciana, State of Louisiana, containing 106 acres, more or less, and being more particularly described as beginning at a point where the southerly line of the property herein described intersects the Star Hill-Lower Jackson Road, thence N. 49° 01' W. for 844 feet to corner, thence N. 35° E. for 1,509 feet and corner, thence S. 57° 25' E. for 1,006 feet, thence N. 45° E. for 102 feet, thence S. 56° E. for 1,491 feet to the center line of Hammer Creek, thence S. 56° E. for 2,710 feet to the centerline of Thompson Creek, thence in a southerly direction along the meander of Thompson Creek to the southerly line of the herein described property, thence N. 49° 01' W. for 2,300 feet to the center line of Hammer Creek, and thence N. 49° 01' W. for 690 feet to the point of beginning; the said tract being bounded on the North by Mrs. E. A. Harvey and heirs, on the East by Thompson Creek, on the South by Ewell Bickham, Ernest Harvey, Sr., and Isnell Harvey, and on the West by the heirs of Nehemiah Harvey.

Article 8 of the answer and reconventional demand alleges:

“The defendant, Melba L. Harvey, further declares that he is the legal owner of the property above described in paragraph 7, and that he has leased the property to defendant, Worth Austin, and both defendants now declare that the property described in Paragraph 7 above, owned by the defendant, Melba L. Harvey, and leased by defendant, Worth Austin, is not the same property described in Paragraph 1 above of the plaintiffs petition.”

In their prayer, defendants pray that defendant Harvey be recognized as owner of the property claimed by him above described.

At the first hearing held, plaintiff placed J. C. Kerstens, a registered surveyor, on the stand as an expert witness. Mr. Kerstens testified thát he had made the survey by which defendant Harvey’s property is described. When shown his survey, and the description of the property of which plaintiff alleges herself to be in possession, he testified that the two parcels overlapped in full in the area between Hammer Creek and Thompson’s Creek. No evidence was adduced to contradict his testimony. Thereupon, the district judge ruled that, since defendant Harvey had alleged himself to be the owner of the property in dispute, he had converted the possessory action to a petitory action, and had judicially confessed the possession of the plaintiff.

After a peremptory exception of no cause of action was filed by plaintiff to the recon-ventional demand, defendants filed an amended pleading, alleging the chain of title under which defendant Harvey was claiming title to the disputed tract. In the pleading, defendants asked that the court appoint a surveyor to determine the exact boundaries between the properties. The peremptory exception of no cause of action was overruled.

Plaintiff then filed an exception of improper cumulation of actions, alleging the inconsistency of the petitory action and the boundary action. Prior to trial the court ruled that the cumulation of the petitory action and the boundary action would be improper, and sustained the exception.

Plaintiff filed an answer to the supplemental reconventional demand, denying Harvey’s title to the disputed tract, and alleging title in herself by various deeds and judgments, and by the acquisitive prescription of 10 and 30 years.

After trial on the merits, the trial judge found that plaintiff had proved a valid prescriptive title by showing possession of the property by herself and her ancestors in title for a period in excess of 30 years. Judgment was signed recognizing and maintaining plaintiff’s possession of the property described in her petition and rejecting the claim of Melba L. Harvey, Sr. to the ownership of the disputed property lying between Hammer Creek and Thompson’s Creek, ordering that his deed thereto be reformed to eliminate the disputed tract therefrom. An award of $500.00 which had been stipulated to by the parties, was made to plaintiff for damages suffered as the result of the trespass by defendants’ cattle. From that judgment, defendants have appealed.

The first specification of error is that the trial judge should not have ruled that the possessory action was converted to a petito-ry action by defendants. Suffice it to say that the expert testimony of the surveyor, which remains unrefuted in the record, is to the effect that the property claimed by defendant Harvey, lying between Hammer Creek and Thompson’s Creek, is encompassed within the limits of the property claimed by plaintiff. Defendants did not attempt to prove their allegation that the two parcels did not overlap. Article 3657 of the Code of Civil Procedure provides:

“The plaintiff may not cumulate the peti-tory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the posses-sory action is abated.
“When, except as provided in Article 3661(1) — (3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.
“If, before executory judgment in a pos-sessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.”

The trial judge properly concluded that, as to the property in dispute, defendants had converted the possessory action to a petitory action, by claiming ownership thereof, and had judicially confessed plaintiff’s possession thereof.

Defendants further complain that the trial judge erred in maintaining the exception of improper cumulation of actions and in not appointing a surveyor to fix the boundaries between the properties of the parties. We think the ruling was correct. It is possible that an action in boundary would have been appropriate if originally instituted by either side. However, plaintiff chose to file a possessory action, and defendants converted it to a petitory action by alleging ownership of a specific piece or property, accurately described by a survey. No question of boundary is presented by the petitory action, and it would therefore be inconsistent to cumulate therewith an action in boundary. See Ebarbo v. Stacey, 16 La.App. 248, 133 So. 793 (2nd Cir. 1931).

Defendants therefore find themselves in the position of plaintiffs in a petitory action in which the defendant is in possession. Their burden of proof is set forth in Article 3653 of the Code of Civil Procedure:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
“(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
“(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

In Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), it was held that Article 3653, supra, requires that the party with the burden of proof must “show title good against the world, without regard to the title of the party in possession.”

The various properties involved herein lie in West Feliciana Parish, on or near Thompson’s Creek, which flows in a southwesterly direction and forms the line between East Feliciana and West Feliciana Parishes. More specifically the properties lie in the James D. Atkins Headright, which is composed of Section 38, Township 3 South, Range 2 West, and Section 75, Township 3 South, Range 1 West; and the Heirs of A. Atkins Headright, which adjoins the James D. Atkins Headright on the North, and is composed of Section 37, Township 3 South, Range 2 West, and Section 75, Township 3 South, Range 1 west. The north and south lines of these Head-rights run northwest and southeast, at approximately right angles to Thompson Creek, which forms their easterly boundary. Hammer Creek, a small spring-fed stream, flowing in a southerly direction, flows into Thompson’s Creek in the James D. Atkins Headright. The property in dispute lies in the fork between the East bank of Hammer Creek and the West bank of Thompson Creek.

The property of which Mrs. Harvey is in possession is described as Lot 6 of a subdivision of the Fluker Estate, consisting of 240 acres of the land lying in the fork of the said streams. The description under which Mr. Harvey claims ownership includes 95 acres of land lying East of Hammer Creek and West of Thompson’s Creek, within the boundaries of the land possessed by Mrs. Harvey.

Mr. Harvey’s immediate ancestor in title, Mrs. Annie Belle Harvey Brown, acquired the property in two parcels. The first of these, the Robert D. Harvey tract, containing 92 acres, is described as being bounded on the East by Thompson’s Creek, and lies within the two Atkins Headrights. The second tract, which constitutes the southern 31 acres of the Fletcher F. Harvey tract, is also described as being bounded on the East by Thompson’s Creek, and is bounded on the south by the Robert D. Harvey tract.

Both the Robert D. Harvey and Flecther F. Harvey tracts form part of the larger tract which was acquired by A. A. Harvey from Mrs. Jane Bethany in 1882, which is described as follows:

“Three hundred acres of land, more or less, with any and all improvements thereon, bounded on the East by Conrad Bockel, formerly Mrs. James L. Fletcher, the Fluker place and Thompson’s Creek, South by the heirs of Wiley Daniels, West by the Johnson place, now owned by Dr. John W. Jones and North by lands of said John W. Jones and by the tract of land generally known as the Isaac Freeland tract.”

In 1888, A. A. Harvey transferred to Robert D. Harvey and Fletcher F. Harvey, respectively, the two parcels of land on which Melba F. Harvey’s title is based. A survey of the entire tract, showing these two parcels, among others, was made by W. B. Smith on April 10, 1888, which survey is of record, and forms part of Melba F. Harvey’s chain of title. Both the survey, and the description by which Fletcher F. Harvey acquired, show that Hammer Creek forms the easterly boundary of that tract.

Although the Robert D. Harvey tract is described in his deed of acquisition as fronting on Thompson’s Creek the Smith survey shows that approximately the northerly one-third thereof is bounded on the East by Hammer Creek. The Smith survey also shows all of the property in the fork of Hammer Creek and Thompson’s Creek as “claimed by the Heirs of Fluker.” . The survey also shows that both Thompson’s Creek and Hammer Creek, in that vicinity, lie East of the range line between Ranges 1 and 2 West.

Both the Kerstens survey and various aerial photographs introduced into the record show that the Robert D. Harvey tract now fronts entirely on Hammer Creek, and that Thompson’s Creek, where is crosses the South line of the said tract, now lies 2300 feet to the East of Hammer Creek. The two streams now join well to the South of the disputed tract. The Kerstens survey also shows that Hammer Creek has encroached on the Robert D. Harvey tract, and flows, in the southeast corner thereof, to the West of the range line.

The defense offered to the petitory action by Mrs. Harvey is that she, her late husband and their immediate ancestors in title had been in- possession, as owners, of all of the property lying in the fork of the two creeks, for a period of more than 30 years. Mrs. Harvey, and her witnesses'testified to cattle grazing, timber cutting, mining -for gravel, clearing, leasing for oil and payment of taxes beginning in about 1940, without any interruption or adverse claim until the trespass which initiated the possessory action.

In order to prevail in this petitory action, Mr. Harvey would have to show a perfect title to the property, running to Thompson’s Creek. - As to the northerly portion thereof, there is a break in the chain of title, when all of the Fletcher F. Harvey tract, and the northerly portion of the Robert D. Harvey tract were shown to front on Hammer Creek.

As to the southerly portion, Mr. Harvey would have to prove that he is entitled to that part of the disputed tract by accretion, due to the gradual retirement of Thompson’s Creek. However, we cannot tell, from the record, if the retirement of Thompson’s Créék came before, or after, the equally evident encroachment of Hammer Creek on the Robert D. Harvey tract to the west and south. Articles 509 and 510, Civil -Code.

In reaching his conclusion, the trial judge did not consider the validity of the Melba L. Harvey title to the disputed property, apparently being of the opinion that it was immaterial in the light of the proof of Mrs. Harvey’s possession thereof as owner. Our review of the record reveals that there is ample evidence to support the trial judge’s conclusion as to the nature and extent of Mrs. Harvey’s possession.

In the light of that fact, ás well as the obvious defects in Melba L. Harvey’s title, we aré óf the opinion that the judgment of the trial court is correct in'all respects.

The judgment appealed from is therefore affirmed, at the cost of Melba L. Harvey and Worth Austin.

AFFIRMED.


author: PONDER, Judge.

text:
    Debra GATHE et al. v. AETNA CASUALTY AND SURETY COMPANY.
    No. 11201.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 10, 1977.

      Arthur Cobb, Baton Rouge, for plaintiff Debra Gathe, appellant.
    Paul Marks, Jr., Baton Rouge, for defendant Aetna Casualty and Surety Co., appel-lee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an appeal from the granting of a motion for a summary judgment. The sole issue is whether defendant Ronnie Johnson was an uninsured motorist at the time of his accident with plaintiffs.

We affirm.

Johnson was attending the Baton Rouge Urban Skill Center, a school funded by the Federal Government and administered by the State Department of Education. He worked in the shop, helping to repair automobiles the City wanted to sell. Part of Johnson’s responsibility was to drive cars across the street to the body shop for other needed repairs. Students customarily road-tested vehicles after they had been repaired.

On the day of the accident, Johnson was given permission to drive an automobile across the street to the body shop. Instead he went on a mission of his own, during the course of which he collided with the automobile being driven by Mrs. Gathe. Both Mrs. Gathe and her son suffered personal injuries, and Mr. Gathe incurred medical and incidental expenses.

Johnson’s negligence is not seriously questioned. Plaintiffs initially sued the insurer for the City of Baton Rouge; this action was settled prior to trial. In the present suit plaintiffs seek recovery from their own insurer on the basis that Johnson was an uninsured motorist.

The trial court found that Johnson was an omnibus insured under the policy issued to the City of Baton Rouge, and therefore granted defendant’s motion for summary judgment.

Once a driver has initial express or implied permission to use a vehicle, a subsequent deviation from the initial permission is immaterial for purposes of insurance coverage. Waits v. Indemnity Insurance Company of North America, 215 La. 349, 40 So.2d 746 (1949); and Ritter v. Thornton, 309 So.2d 750 (La.App. 4th Cir. 1975).

In Perrodin v. Thibodeaux, 191 So. 148 (La.App. 1st Cir. 1939), the St. Landry Parish Police Jury was the owner of a truck and also the named insured. The truck was placed in control of an employee of the Police Jury, who allowed his son to go to a fish-fry in it.. The boy deviated from this permission. The court held that since the father had unrestricted use of the vehicle, he could give his son permission to drive it and thereby make him an omnibus insured. The fact that the son exceeded the scope of permission was deemed irrelevant.

In the present case, Fidelity and Casualty Company of New York issued a policy with the City of Baton Rouge as the named insured. The City gave the Skill Center the general custody and use of the vehicle. As part of his work at the Skill Center, Johnson was authorized to drive the vehicle from the repair shop to the body shop and to road test the automobiles. The fact that he exceeded the scope of his authority on the day of the accident makes no difference with regard to insurance coverage. Waits v. Indemnity Insurance Company of North America, supra.

Plaintiffs cite the case of Revolta v. Allstate Insurance Company, 273 So.2d 645 (La.App. 4th Cir. 1973) as being squarely on point with the present case. There the owner of an automobile drove to a car wash to clean his car. A young man offered to wash and clean his car for a small remuneration. The owner assented to this and then went into a building next door. The young man drove the car on a personal mission, during which time he was involved in an accident with the plaintiff. Suit was brought contending the driver was an omnibus insured because he had the implied permission of the named insured to drive the car.

The court found the young man had permission to operate the auto in the wash bay and drying area only. This authority did not include operation on public streets.

If this case cannot be distinguished on the basis that Johnson had permission to operate the vehicle on the public streets where the tortfeasor in Revolta did not, we choose to follow Waits v. Indemnity Insurance Company of North America and Perrodin v. Thibodeaux, supra.

Johnson was an omnibus insured under the' policy issued to the City of Baton Rouge; he was not an uninsured motorist.

The judgment of the trial court is therefore affirmed. Plaintiff is cast with all costs.

AFFIRMED.


text:
    DIAMOND ELECTRICAL COMPANY, INC. v. UNIONAMERICA MORTGAGE & EQUITY TRUST et al.
    No. 11214.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 10, 1977.

      John C. Anderson, Baton Rouge, of counsel for plaintiff-appellant Diamond Electrical Co., Inc.
    Steve K. Faulkner, Jr., New Orleans, of counsel for the defendant-appellee Union-america Mortgage & Equity Trust.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Defendant Unionamerica Mortgage and Equity Trust made a construction loan to Arnott Corporation for the purpose of building a Days Inn Motel in Baton Rouge, Louisiana. The original general contractor on the job was Dynamic Constructors, Inc., which subsequently defaulted on the job. Arnott then took over as the contractor, and it then defaulted.

Diamond Electrical Company, Inc., plaintiff herein, and Landry and Pennington Plumbing Company, Inc., plaintiff in consolidated case No. 11215, furnished work and materials for the job for which they were never paid. These two consolidated suits were brought against Unionamerica for the recovery of the value of the work and materials furnished. The alleged bases for liability are: first, that defendant assumed the obligations of Arnott and Dynamic under the construction contract; second, that defendant negligently failed to insure that the funds advanced by it were used to pay subcontractors; and, third, that defendant was engaged in a joint venture with Arnott, and therefore, liable for Arnott’s failure to pay.

Subsequently, plaintiffs moved for summary judgment, based ,on affidavits which stated the above facts relative to the construction loan and the defaults by Dynamic and Arnott, and containing the following language:

“That the defendant herein, as lender, owed a duty to plaintiff herein to supervise the funding of this project and the payment of the sub-contractors and the materialmen, and that the plaintiff breached its duty to do such, thereby causing the plaintiff herein to go unpaid for the aforementioned amount. That because of the defendant’s negligence and/or breach of its duty to supervise the funding of this property and the payment of materialmen and sub-contractors, that the defendant is liable to plaintiff herein for the full amount which is due and owing.”

Subsequently, defendant moved for summary judgment, attaching an affidavit stating that it was never assigned any rights and obligations under the construction contract between Arnott and Dynamic, and never assumed any of their obligations thereunder; that it did everything for which it was responsible in connection with the funding of the project; and that it never obligated itself for payment of plaintiffs’ accounts.

The deposition of Stephen R. Broadwater, who supervised the loan for Unionamerica was also attached to the motion. Mr. Broadwater testified that he was responsible for seeing that the loan was properly supervised, and that he retained a firm of consulting architects, who would check the construction of the project from time to time to see that it was on schedule and properly built. He also had periodic checks made by a title company to see whether any liens were filed against the job. Advances were made on a monthly basis, after receipt of a draw request, which he described as follows:

“A. Well, the draw request breaks down each budget category by trade, construction trade, and in our type of lending we also involve certain soft costs. He would draw down request monies for each budget category — you know, plumbing, rough carpentry, rough electrical, things like that. He would also include any of his soft costs and, of course, the motel you have F F & E.
“Furniture, fixtures and equipment, which he might be drawing down for things like that. He would, you know, indicate what he was requesting in each category, and then the reverse side of the form was a summary of the total loan amount, amount drawn to date, and then, you know, there was an affidavit on the bottom of the form that he signed that the money was being used in the construction of the project.”

The request would be signed by the borrower, the general contractor and the inspecting architect.

Mr. Broadwater testified that the project began in late 1973, and that there was no indication of trouble until the summer of 1974. He was not aware that Dynamic had defaulted in March, 1974, because all of the draw requests which were submitted until he stopped advancing funds were signed by Dynamic. He testified that liens began to pile up in the summer of 1974, and that part of the project was destroyed by fire on Labor Day, 1974. Unionamerica at that time stopped advancing funds. Eventually, Arnott went into bankruptcy, and the motel and land were turned over to Unionameri-ca, as mortgagee in possession, in January, 1975.

From the affidavits and depositions, it appears undisputed that Unionamerica never assumed or was assigned any of the obligations of Dynamic or Arnott under the construction contract, or had any contractual relationship with either of them other than as a lender. Plaintiffs' first and third grounds for the liability of defendant are therefore without merit.

Plaintiffs’ main contention is that, having assumed the task of making sure that the loan money was being used in the construction of the motel, defendant assumed a duty to plaintiffs to see that they were paid for services and materials furnished. It is argued that, if this duty was negligently breached, defendant then became personally liable to plaintiffs for the amount of their claims.

Plaintiffs have cited no direct statutory or jurisprudential authority for the novel proposition advanced by them. His first argument is based- on the Private Works Act, R.S. 9:4801 et seq., and is to the effect that, since the funds advanced by defendant were not used in the construction of the project, and defendant should have known it, the mortgage privilege enjoyed by it should not prime the lien privilege enjoyed by plaintiffs. However, plaintiffs have overlooked the fact that these suits are for personal judgments against defendant, and the ranking of their respective liens is not at issue. .

Plaintiffs also argue that defendant was unjustly enriched, because it eventually became the owner of the motel and thereby became the beneficiary of plaintiffs’ services and materials. There are, however, no facts alleged in plaintiffs’ affidavits, or testified to by Mr. Broadwater in his deposition, which would lead one to conclude that defendant was enriched. The unrefuted deposition reveals that defendant had advanced sufficient funds to pay for all expenses incurred by the contractor and the owner. It was certainly not enriched by the failure of the contractor or owner to pay the subcontractors. Plaintiffs have therefore not met the first prerequisite of the actio de in rem verso, and their argument is without merit, assuming that the action is appropriate in the first place. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

There is no dispute as to the fact that defendant has assumed no contractual obligation toward the plaintiffs. Plaintiffs have been unable to demonstrate that any duty to safeguard their interests is owed them by defendant. Under those circumstances, we believe- that defendant is entitled to - summary judgment, dismissing plaintiffs’ suits.

The judgment of the trial court is therefore affirmed, at plaintiffs’ cost. -

AFFIRMED.


text:
    LANDRY AND PENNINGTON PLUMBING COMPANY, INC. v. UNIONAMERICA MORTGAGE AND EQUITY TRUST et al.
    No. 11215.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1973.
    Rehearing Denied May 9, 1977.
    John C. Anderson, Baton Rouge, of counsel for plaintiff-appellant Landry and Pennington Plumbing Co., Inc.
    Steve K. Faulkner, Jr., New Orleans, of counsel, for defendant-appellee Unionamer-ica Mortgage and Equity Trust, et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

For the reasons assigned in Diamond Electrical Company, Inc. v. Unionamerica Mortgage and Equity Trust, 345 So.2d 119 (La.App. 1st Cir. 1977), with which this case is consolidated, the judgment appealed from is affirmed, at plaintiffs cost.

AFFIRMED.