text:
    Lavern PHILLIPS et al., Plaintiffs-Appellees, v. GREAT SOUTHERN MORTGAGE & LOAN CORPORATION, Defendant-Appellant.
    No. 6127.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      John P. Navarre, Oakdale, for defendant-appellant.
    James C. Downs, Alexandria, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

In this suit plaintiffs, Lavern and Irene Phillips, alleging that immovable property owned by them was illegally seized by the Sheriff of Allen Parish at the behest of defendant, seeks to enjoin such seizure and have the property released to them. Plaintiffs additionally seek damages and attorney fees. Great Southern Mortgage & Loan Corporation (hereafter referred to as Great Southern) and Sheriff William Co-wart of Allen Parish are made defendants. The trial court rendered judgment permanently enjoining defendants from selling or attempting to sell the one acre tract in question and additionally awarded plaintiffs $750.00 in damages and the further sum of $500.00 as attorney fees. Defendant, Great Southern, has taken this suspen-sive appeal. Plaintiffs have answered the appeal and seek an increase in the amounts awarded as damages and attorney fees. Sheriff Cowart has neither appealed nor answered the appeal of Great Southern.

The facts giving rise to this suit are not seriously disputed.

On and prior to January 25, 1971 Sarah Winn was record title owner of a one acre tract of land, with improvements, situated in Allen Parish and described as follows:

“Beginning at a point 416 feet East and 416 feet South of the Northwest Corner of the Northwest Quarter of Northeast Quarter Section 28, T3S, R3W; thence South 208 feet, West 208 feet, North 208 feet, East 208 feet to the point of beginning, being 1 acre, more or less, LESS and EXCEPT 20 feet on East side of said above described acre for road Right-of-Way together with all improvements situated thereon Allen Parish, Louisiana.”

On the aforesaid date Sarah Winn executed a demand note in the amount of $3840.00 made payable to the order of future holders the payment of which note was secured by a conventional mortgage bearing upon the above described property. The mortgage was properly recorded on January 26, 1971. Great Southern is the holder of said note. Great Southern alleges that the remaining balance due under said note is the sum of $139.18, however, plaintiffs assert that said note is fully paid. We need not consider this issue because this alleged indebtedness and the mortgage securing the payment of same do not form the basis for the alleged illegal seizure.

By act of cash sale dated August 19,1971, recorded March 28, 1972 (Exhibit-Phillips # 2) Sarah Winn conveyed the one acre tract with improvements to her daughter and son-in-law, Addie and William K. Washburn. The sale recites a cash consideration of $6,000.00. At the time this sale was recorded the only indebtedness owed by Sarah Winn to Great Southern was the balance then remaining on the $3840.00 note which was secured by the aforesaid mortgage.

Following the execution and recordation of the above sale Sarah Winn borrowed additional sums of money from Great Southern which loans were evidenced by unsecured promissory notes as follows:

(a) Promissory note dated June 5,1972 in the amount of $480.00 executed by Sarah Winn to the order of bearer.
(b) Promissory note dated August 2,1972 in the amount of $1104.00 executed by Sarah Winn to the order of bearer.
(c) Promissory note dated October 23, 1972 in the amount of $672.00 executed by Sarah Winn to the order of bearer.

By act of cash sale dated December 21, 1972, recorded December 22, 1972 (Exhibit-Phillips # 3) Addie and William K. Wash-burn conveyed the one acre tract with improvements to Lavern and Irene Phillips. The sale recites a cash consideration of $3,000.00. Lavern and Irene Phillips are the son-in-law and daughter, respectfully, of Sarah Winn.

On April 5, 1973 Great Southern instituted suit against Sarah Winn on the three unsecured notes above described and ultimately secured a default judgment against her in the amount of $2,090:00. Following the rendition of this latter judgment Great Southern caused a writ of fieri facias to issue and the one acre tract in question, with improvements, was seized to the end that it might be sold in satisfaction of said judgment. Following the issuance of this writ and the seizure of the property plaintiffs instituted this suit for an injunction, damages and attorney fees. Defendant, Great Southern, filed answer generally denying the allegations of plaintiffs’ petition and reconvened seeking damages for the alleged unlawful issuance of the restraining order, secured by plaintiffs. On the day of trial defendant, Great Southern, filed an amended answer asserting that the sale to Addie and William Washburn dated August 19, 1971 and the sale from the Washburns to Lavern and Irene Phillips dated December 21, 1972, were pure simulations; the one acre tract was still owned by Sarah Winn; and, the seizure should be. maintained. We observe at this point that Great Southern upon filing this amended answer did not seek to have Sarah Winn, William Washburn, and Addie Washburn, joined as parties, although in support of its claim that the seizure was valid Great Southern seeks to have the sales hereinabove referred to declared simulations.

As aforementioned after trial the District Court rendered judgment enjoining the seizure and proposed sale and awarded plaintiffs damages and attorney fees.

Defendant on appeal assigns as error the trial court’s determination that the sales were valid and not simulations. Appellant further questions correctness of the trial court’s award of attorney fees even if the seizure was invalid.

Clearly Great Southern’s seizure of the property in question, record title to which vested in Lavern and Irene Phillips, was improper, unwarranted and invalid unless it be established that the sales attacked are in fact simulated sales. This is the only defense asserted by defendant in support of its seizure of plaintiffs’ property.

Although defendant-appellant alleges that the sale from Sarah Winn to Addie and William Washburn is a simulation, it did not cause these parties to be joined in this litigation and no evidence appears in the record concerning this sale. Additionally, defendant-appellant seeks to have the Washburn-Phillips sale adjudged a simulation but failed to join the Washburns as parties. The only evidence in the record concerns the circumstances surrounding and following the second sale.

It is well settled that for a creditor to bring an action in declaration of a simulation he must aver and prove that the act sought to be avoided operates injuriously as to him and he must join all transferors and transferees to the simulated sale or sales since they are indispensable parties. Seixas v. King, 39 La.Ann. 510, 6 So. 416 (1887); Blum & Co. v. Wyly, 111 La. 1092, 36 So. 202 (1904); Theriot v. Daigle, 125 La. 363, 51 So. 292 (1910); Sharp v. Sharp, 227 La. 9, 78 So.2d 491 (1955); LSA-C.C.P. Article 641.

As aforesaid Great Southern’s only defense to the instant action lay in its ability to establish the invalidity of the sales in question. Great Southern had the burden to establish that the sales sought to be avoided operated injuriously towards it and that the sales were invalid. In order to assert and prove this defense it was absolutely essential that Great Southern join all transferors and transferees to the alleged simulated sales. This Great Southern failed to do and therefore the issue as to whether or not the sales in question were valid or invalid was not properly before the trial court, should not have been considered by the trial court and clearly could not be adjudicated by the trial court. In a somewhat similar case the court in Sharp v. Sharp, supra, stated:

“Shelby Sharp should be afforded the opportunity to appear in court and deny the charge of fraud which has been brought against him in the instant case. He cannot be condemned without an opportunity of being heard, and the court in his absence cannot pass upon the validity of the sale he made.”

The trial judge did not render written reasons in support of the judgment however, we assume, on the basis of the record, that he concluded that although Sarah Winn remained in possession of the property the presumption of simulation (R.C.C. Article 2480) was rebutted. We reach the same result, i. e., the seizure and sale of plaintiffs’ property should be enjoined, however, we base our decision on the fact that because of Great Southern’s failure to join indispensable parties the defense of simulation was not properly before the court and could not be pronounced. Having so concluded it necessarily follows that defendant was without right to disregard the sale from Sarah Winn to William and Addie Washburn and the sale from the Washburns to the Phillips. As set forth in Joiner v. Ruark, 174 La. 615, 141 So. 76 (1932):

“It is thoroughly established that, where the sale is a mere simulation, executed in fraud of creditors, it may be disregarded by a creditor of the vendor, and seized as the latter’s property. McAdam v. Soria, 31 La.Ann. 862. Where, however, the sale is a real sale, although it be a fraudulent one, and although there be an inadequacy of consideration, the sale cannot be disregarded by creditors, when the property transferred is immovable, but, in order to subject the property to their claims, the sale must be set aside by judgment in an action instituted for that purpose.”

For the above reasons we conclude that the seizure of plaintiffs’ property was clearly unwarranted and invalid and the injunction properly issued.

The sole remaining issues concern adequacy of the trial court’s award of damages and the correctness of the judgment insofar as it awards plaintiffs attorney fees. By answer to this appeal plaintiffs seek an increase in both awards.

QUANTUM

The trial judge awarded plaintiffs general damages, presumably for humiliation, mental anguish and inconvenience. Plaintiffs are entitled to such damages. Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3rd Cir. 1969). Plaintiffs contend that the award made is too low.

As a result of the seizure plaintiffs were not deprived of the physical possession of their property, the seizure being constructive only. We entertain little doubt however, that plaintiffs suffered some humiliation and mental worry as a result of defendant’s violation of their property rights. The trial court in its discretion allowed plaintiffs $750.00 in damages.

The trier of fact is allowed much discretion in the assessment of damages. LSA-C.C. Article 1934. Unless the record clearly demonstrates that the trier of fact abused this much discretion the award should not be disturbed on appeal. Bitoun v. Landry, 302 So.2d 278 (La.1974); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Our review of the record in this case reveals no abuse of the great discretion allowed the trial court in the assessment of damages.

ATTORNEY PEES

The trial court awarded plaintiffs $500.00 as attorney fees. Defendant-appellant contends that this was error as attorney fees are not allowable in the absence of contract or statute authorizing same. On the other hand plaintiffs ask an increase in the amount awarded.

We agree that generally recovery of attorney fees is allowable only when authorized by statute or contract. Our jurisprudence has however, created a number of exceptions to this general rule one of which is that attorney fees are allowable when an owner of property is compelled to enjoin an illegal seizure and sale in order to release his property. In Smith v. Atkins, 218 La. 1, 48 So.2d 101, 103 (1950) the Supreme Court stated:

“Where the property of a third person is illegally seized and he is forced to enjoin the seizure in order to release his property, attorney’s fees may be recovered as damages. Gilkerson-Sloss Commission Company v. Yale, 47 La.Ann. 690, 17 So. 244; Ludeling v. Garrett, 50 La.Ann. 118, 23 So. 94; Soniat v. Whitmer, 141 La. 235, 74 So. 916; Alfano v. Franek, 159 La. 498, 105 So. 598.”

Our research discloses that this jurisprudential rule is still viable.

In support of its contention that attorney fees should not have been allowed in the instant case defendant cites Moses v. American Security Bank of Ville Platte, supra, and Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958).

Moses, supra, is inapposite. The dissolution of the writ of fieri facias in Moses arose as an incidental question in the course of the litigation between the parties and not as the result of an independent action to enjoin the seizure in order to have the property released, as is the case here. Hernandez v. Harson, supra, is likewise inappo-site. In the latter case attorney fees were disallowed because the seizure was dissolved as a result of an intervention or third opposition being maintained after hearing on the merits, the court there characterizing the suit as one to try title in which attorney fees are clearly not allowable. In fact the Hernandez court was careful to distinguish Soniat v. Whitmer, 141 La. 235, 74 So. 916; Bailey v. Williams, 158 La. 432, 104 So. 197; Ludeling v. Garret, 50 La.Ann. 118, 23 So. 94; and, Gilkerson-Sloss Commission Co. v. Yale, 47 La.Ann. 690, 17 So. 244, in all of which attorney fees were granted, on the basis that in such cases injunctions were obtained. See also our recent decision in May Company v. Heirs of Dessie Sumage, 347 So.2d 916 (La.App. 3rd Cir. 1977). Accordingly, we conclude that in this case attorney fees were allowable.

The final issue concerns adequacy of the amount awarded as attorney’s fees. Counsel for plaintiff strenuously argues that his fee should be increased substantially. We have considered the amount of the claim, the time and skill involved in handling it and have decided that the award of $500 as attorney’s fees is inadequate. We believe that the fee should be increased to the total sum of $750.

For the reasons assigned it is ordered that the judgment of the trial court be amended so as to increase the award of attorney fees from $500 to $750. In all other respects the judgment of the trial court is affirmed. Appellant is cast for all costs.

AMENDED AND AFFIRMED.

      . The record reflects that, although Mrs. Winn remained in possession of the one acre tract following the Washburn-Phillips sale and that the $3,000.00 cash consideration recited therein was not paid, the true consideration for such sale was the assumption by Lavern and Irene Phillips of the outstanding indebtedness due under the conventional mortgage held by Great Southern. The record further reflects that this indebtedness was in fact paid by Lavern and Irene Phillips to Great Southern. Presumably the trial judge held, in light of this evidence, that the sale of December 21, 1972 was not a simulation. Joiner v. Ruark, 174 La. 615, 141 So.2d 76 (1932). Although unnecessary to our decision we agree with this finding.


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    The SOUTHLAND CORPORATION, Plaintiff-Appellant, v. CITY OF LAFAYETTE et al., Defendants-Appellees.
    No. 6132.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      Voorhies & Labbé by John N. Chappuis, Lafayette, for plaintiff-appellant.
    Ronald J. Judice, Lafayette, for defendant-appellee.
    Davidson, Meaux, Sonnier & Roy by J. J. Davidson, III, Lafayette, for defendant-in-tervenor-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

This is a mandamus suit instituted by The Southland Corporation against the City of Lafayette, and the Mayor, the Police Chief and the Collector of Revenue of that city. Plaintiff seeks a judgment directing defendants to grant a permit authorizing The Southland Corporation to sell alcoholic beverages in a store owned and operated by it in Lafayette. The First Baptist Church of Lafayette intervened, joining defendants in resisting plaintiff’s demands. The trial court rendered judgment rejecting plaintiff’s demands, and plaintiff appealed.

The issue presented is whether interve-nor, the First Baptist Church of Lafayette, was operating a “school” within 300 feet of plaintiff’s store, and thus whether the Lafayette Code of Ordinances prohibits the sale of alcoholic beverages at the location of that store.

On or about September 17,1976, plaintiff applied to defendants for the issuance of a Class “B” Package House permit, authorizing it to sell alcoholic beverages at a store owned and operated by it at 410 University Avenue, in Lafayette. The application was denied on or about October 4, 1976. The reason given by defendants for refusing to grant the permit was that plaintiff’s store was located within 300 feet of a “school” being maintained by the First Baptist Church of Lafayette, and that Sections 5-19 and 5-48 of the Lafayette Code of Ordinances prohibits the sale of alcoholic beverages that close to a school.

The Lafayette Code of Ordinances provides that before a permit to sell alcoholic beverages can be issued it must be shown that there is no violation either of Section 5-19 of the Code of Ordinances (relating to the sale of liquor) or of Section 5-48 (relating to the sale of beer). The cited sections deal with the proximity of the premises to schools and churches. The language used in both sections is practically identical. Section 5-48 reads as follows:

“It shall be unlawful for any person to sell any of the beverages herein referred to within a distance of three hundred (300) feet of any school, except a business college or school, said distance to be measured as a person walks using the middle of the sidewalk from the nearest point of the property line of the school to the nearest point of the premises where such beverages are sold. It shall also be unlawful for any person, firm, or corporation to sell any of the liquors or beverages herein referred to within a distance of one hundred seventy-five (175) feet of any church, said distance to be measured in the same manner as is provided for schools.” (Emphasis added).

Plaintiff instituted this suit to compel defendants to issue the permit which it seeks. It concedes that intervenor owns property near its store, but it contends that the property is being used solely for “church” purposes, and that it is not being used for the operation of a “school,” as that term is used in the above cited sections of the Lafayette Code of Ordinances.

The evidence shows that the First Baptist Church owns property located near plaintiff’s store, the distance between the store and the nearest point on the church property being 215 feet. The church property thus is more than 175 feet, but less than 300 feet, from the premises of the Southland Corporation where the alcoholic beverages are to be sold.

On the church property there are various improvements, including a church building and at least two other buildings, one of which contains a gymnasium and the other contains classrooms. The gymnasium and the classroom building are connected. The building with the classrooms bears a cornerstone with the title “Education Building,” and on the exterior of the building there is a sign labeled “First Baptist Church Education Building.” Of the buildings on inter-venor’s property, the church proper is situated farthest away from the premises proposed for licensing.

All parties stipulated that the actual use of the First Baptist Church facilities is correctly set out in a letter written by the pastor of that church to its attorney on September 27, 1976, which letter is in the record. That letter states, in substance, that the “Personnel of the School” consists of the following: (a) Seven full-time, professionally trained employees, who are responsible for curriculum, schedules, teacher enlistment and pupil promotion for the education activities carried on in the church facilities, two of those employees possessing advanced degrees in education; (b) two part-time employees, both of whom are certified teachers in Louisiana; and (c) 188 volunteer or part-time workers, eight of whom have doctorates and 69 of whom are certified Louisiana teachers.

The buildings were used for “school functions” the major part of every month, including the summer months, during the calendar year 1975. They were used for that purpose a total of 278 days that year, or an average Of 23 days each month during the entire 12 month period.

At the time the above letter was written, a total of 1,491 pupils were enrolled in a continuing weekly study. 1,448 pupils were enrolled in an intensive daily school during July and August, and 413 were enrolled in another weekly study. Eight school buses are provided to transport children to the school.

Most of the children are of Baptist background. Of the 1,448 enrolled in the daily school during July and August, 1976, about 800 were Baptists, 300 were Catholics, 75 were Methodists, and the remainder were from several other denominations, including Muslims and Buddhists.

With reference to the curriculum, the letter states:

“A. Preschool
“When preschool children are being taught in the facilities, we utilize the total teaching concept of child development, including Bible knowledge, nature study, physical growth, motor skills, community relations, elementary art, social behavior and reading readiness.
“B. Grades 1 Through 12
“Grades 1 through 12 have a wide variety of course offerings, including Bible study, history, vocational training, drama, music, puppetry, camping, missionary activity, eschatology, dactylology (sign language for deaf), beginner and advanced classes.
“C. College Age and Above
“College age and above have a wide choice of curricular — Bible study, Baptist history, social ethics, specialized seminars on wills and trusts, eschatology, dactylol-ogy (sign language for deaf), beginner and advanced classes, etc.
“D. Recreation
“Preschool and younger children take full advantage of the small playground and gym area for their elementary athletics.
“From the Third Grade on up, we have organized sports including basketball, skating, etc. They are organized into three basketball leagues, using the gym facility several days weekly during the season.”

The educational activities conducted on the First Baptist Church property are not regulated or controlled by any local, state or federal governmental authority, and they are not subject to the accreditation requirements of the Louisiana State Board of Elementary and Secondary Education.

On the basis of the above facts, the trial judge concluded that the First Baptist Church was operating a “school” within 300 feet of plaintiff’s premises, and that the Lafayette Code of Ordinances thus prohibits the sale of alcoholic beverages on those premises.

Plaintiff, contending that the trial judge erred, maintains that the activities conducted by the First Baptist Church on its premises do not constitute the operation or maintenance of a “school,” as that term is used in the above cited sections of the Lafayette Code of Ordinances. To support that argument, plaintiff argues (1) that all of the educational programs conducted on those premises are “geared toward a religious goal,” and that they thus are church, rather than school, activities, (2) that those activities are not required or controlled by any local, state or federal agency, and (3) that the educational activities of the church are not subject to the accreditation requirements of the Louisiana State Board of Elementary and Secondary Education.

We have concluded that the activities conducted on the church premises constituted the operation or maintenance of a “school” on those premises, as that term is used in Sections 5-19 and 5-48 of the Lafayette Code of Ordinances.

The word “school” is properly defined, we think, as an institution or place for instruction or education, or as an organization that provides instruction, or as an organized body of scholars and teachers associated for the pursuit and dissemination of knowledge. See Black’s Law Dictionary, Fourth Edition; Webster’s New Collegiate Dictionary; and Webster’s Third New International Dictionary. The following definition is given in 78 C.J.S. Schools and School Districts § 1, page 605:

“The word ‘school’ is a generic term of many definitions, denoting an institution or place for instruction or education, or the collective body of instructors and pupils in any such place or institution. A school is not measured by the walls of a building, and two or more schools may exist in the same building; but, on the other hand, a school is single and entire notwithstanding it is held and conducted in two or more buildings. The number of persons being taught does not determine whether the place is a school.”

In Lichentag v. Tax Collector of First Dist., 46 La.Ann. 572, 15 So. 176 (1894), plaintiff used his property exclusively as his residence and for conducting a school of stenography and typewriting. Our Supreme Court held that the property was not being used exclusively for “colleges or other school purposes,” and that it thus was not exempt from taxation. The court observed, however, that the word “school,” as used in the statute applied to “ordinary schools, such as we know in common speech, educational establishments below the grade of college, in which elementary knowledge is imparted; such institutions are for the purpose of instructing young people and are known as primary or common schools or academies; such institutions are for acquiring knowledge and mental training.”

The issues presented in Boys’ Clubs of Detroit v. Pakula, 342 Mich. 150, 69 N.W.2d 348 (1955), are similar to those which are before us here. In that case the Supreme Court of Michigan held that the Boys’ Club was operating a “school,” within the meaning of a statute which prohibited the sale of alcoholic beverages within 500 feet of a school. The curriculum of that school consisted of regular hours of classes in music, woodworking, photography, arts and crafts, printing, motion picture projection, dramatics, radio and television and a complete physical education program. The court rejected the idea that the Legislature intended to restrict the meaning of the word “schools” to institutions teaching “subjects required by law to be taught to children of that age.” The full intent of the law, the court said, was to “protect those of tender years attending institutions contributing to the educational needs of a community.”

The same court, the Supreme Court of Michigan, also held in Bastendorf v. Arndt, 290 Mich. 423, 287 N.W. 579 (1939), that the words, “schools and churches or other public buildings,” as used in a zoning ordinance, included a private school of dance and drama which was conducted for profit.

The case of City of Chicago v. Bethlehem Healing Temple Church, 93 Ill.App.2d 303, 236 N.E.2d 357 (1968), involved the interpretation of a city ordinance which required the installation of sprinkler systems in schools. The reviewing court held that the defendant church was operating a “school,” within the meaning of that ordinance, since 350 children of church members took courses in religious instruction regularly on the third and fourth floors of the church building. The instructors were church members who served without compensation.

Plaintiff relies on In Re Townsend, 195 N.Y. 214, 88 N.E. 41, 49 A.L.R.2d 1109 (1909), which involved a statute prohibiting the traffic in liquor within 200 feet of “a building occupied exclusively as a church or schoolhouse." The Court of Appeals of New York held that a training school for nurses, which admitted as student nurses only women who were 23 years of age or older, was not a “schoolhouse,” as that term was used in the statute. The court said:

“The evident intention of the Legislature was to remove the masses of our school-going children and youth as far as possible from the influences of liquor traffic, and the most effective means of accomplishing this end was thought to be the interdiction of the traffic within a certain radius surrounding the ordinary schoolhouse. . . . These considerations, applied to the conceded facts of this case lead us to conclude that a building used as a training school for nurses is not a schoolhouse within the purview of the liquor tax law.”

We have considered the facts in the instant suit with the above authorities in mind.

It is true, as pointed out by plaintiff, that a substantial part of the educational program being conducted by intervenor is “geared to a religious goal.” We do not agree, however, that the extensive program of training and education conducted by the First Baptist Church constitutes only a church activity. The curriculum for preschool age children includes such things as nature studies, motor skills, community relations, elementary art, social behavior and reading readiness. For elementary and high school children, it includes studies of history, vocational training, drama, music, puppetry and camping. These courses are designed to train, educate and develop children along secular as well as religious lines. Although the curriculum may not be as complete as that required for an accredited elementary or high school, it clearly is designed for the pursuit and dissemination of knowledge, and it thus fits the definition of a “school.”

Plaintiff has cited no authority to support its argument that the institution of learning being maintained by intervenor must be regulated or controlled by a government agency, or it must be accredited by the State Board of Elementary Education, before it can be held to be a “school.” We have considered the argument that chaos may result if the word “school,” as used in the above ordinances, is interpreted to include unregulated or unaccredited institutions of learning. We are not convinced, however, that our holding in this case will be as disastrous as plaintiff feels it will be. In our opinion, the determination of whether an institution may reasonably be held to be a “school,” within the meaning of ordinances similar to the one which is before us now, must be made on the facts of each particular case. Our holding here is that an institution may be held to be a “school,” under the cited provisions of the Lafayette Code of Ordinances, even though that institution is not controlled or regulated by a governmental agency and despite the fact that it is not an accredited school.

The obvious purpose of the governing authority of the City of Lafayette in enacting Sections 5-19 and 5-48 of that city’s Code of Ordinances was to remove school children, at least to some extent, from the undesirable effects or influences which may flow from the sale of liquor in close proximity to schools. We think the intent was to extend that protection to children who regularly attend all institutions of learning which reasonably may be held to be schools, even though those institutions may not be regulated or accredited by governmental agencies.

Our conclusion is that intervenor, the First Baptist Church, is maintaining a “school” on its property, as that term is used in Sections 5-19 and 5-48 of the Lafayette Code of Ordinances, and that it was conducting a school at that location when plaintiff applied for a permit to sell alcoholic beverages. Plaintiff’s store is located within 300 feet of that school, and the sale of alcoholic beverages at that location is prohibited by the above ordinances. We find no error in the judgment of the trial court, therefore, which rejects plaintiff’s demands.

Since we have determined that interve-nor was maintaining a school on its property when plaintiff first applied for a permit to sell alcoholic beverages, it is unnecessary for us to consider the additional argument made by defendants and intervenor that since that application was filed another school, which is “accredited,” also has been using the church’s facilities regularly for school purposes.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Floyd Joseph DUCOTE, Plaintiff-Appellant, v. Virginia T. VOORHIES, Robert Lee Johnson, and State Farm Insurance Company, Defendants-Appellees.
    No. 6136.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      Clement Story, III, Lafayette, for plaintiff-appellant.
    Gist, Methvin & Trimble by Alonzo Wilson, Alexandria, La., for defendant-appellee.
    McLure & McLure by T. C. McLure, Jr., Alexandria, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

In this case plaintiff, Floyd Joseph Du-cote, seeks to recover damages for personal injuries received when he was shot by defendant, Robert Lee Johnson. At the time of the shooting, plaintiff was performing his official duties as an officer of the Bunk-ie Police Department. Robert Lee Johnson’s mother, Virginia T. Voorhies, and her “Homeowners” insurer, State Farm Fire and Casualty Company (hereafter referred to as State Farm) have also been made defendants to the action. After trial on the merits, judgment was rendered in favor of plaintiff against Robert Lee Johnson in the principal amount of $35,000.00. Judgment was also rendered in favor of Virginia T. Voorhies and State Farm, rejecting plaintiff’s demands against them. Plaintiff appeals from that portion of the judgment rejecting his claim against Mrs. Voorhies and State Farm. Robert Lee Johnson has not appealed.

The sole issue presented on appeal is whether or not Mrs. Voorhies was guilty of negligence on the occasion in question which was a cause-in-fact of plaintiff’s injury.

The facts giving rise to this litigation are not in dispute. Mrs. Voorhies resides at 503 North Sycamore Street in Bunkie, Louisiana. State Farm had issued a homeowner’s policy covering the property. Robert Johnson, Mrs. Voorhies’ son, had been residing in her household for about three months prior to the shooting. He had previously been staying with a Mr. Townsend, but Mrs. Voorhies had brought him home following a spell of sickness. Robert was 32 years old and had a history of epilepsy. He suffered frequent attacks in which he would pass out, foam at the mouth and bite his tongue. He was taking medicine to eliminate or reduce the attacks.

On the night of April 28, 1975, plaintiff and Officer Dauzat of the Bunkie Police Department were summoned to the Voo-rhies’ residence by one of Mrs. Voorhies’ daughters to check out a disturbance. On the way there, the officers observed another one of Mrs. Voorhies’ daughters, Hazel, walking along the street. Upon arrival at 503 North Sycamore, the officers were informed by Mrs. Voorhies that an argument had transpired between her son and daughter, Hazel. She had stepped in to break them and had been struck by her son. Mrs. Voorhies did not inform the officers that Robert was then present in the house or that he was an adult. She requested the officers to find Hazel and return her to her home. The officers left and soon returned to the Voorhies residence with Hazel in the patrol unit. Officer Dauzat remained in the unit to answer a radio call while plaintiff and Hazel entered the residence. Plaintiff was informed that Robert had been in the fight with Hazel and that he was in the back bedroom. Plaintiff asked Mrs. Voorhies to send someone for Robert so he could speak to him. Someone went to get Robert, but he suddenly appeared in the doorway of his room with a gun in his hand and opened fire. Plaintiff sustained a bullet wound of the right arm. Plaintiff returned fire, and after an exchange of shots, Robert was captured and taken into custody. At trial, the following, among other, stipulations were entered into:

(1) That Robert Lee Johnson was sane at the time of the shooting and that he knew right from wrong; and was capable of choosing right; and that he knew what he was doing at the time of the occurrence.
(2) That Robert Lee Johnson had obtained the guns, which he used that day, the same day of the occurrence without knowledge of anyone in the Virginia Voorhies household.
(3) That Robert Lee Johnson had been drinking beer the afternoon of the occurrence.
(4) That Robert Lee Johnson pled “guilty” to “Attempted Manslaughter”, and is presently serving a sentence at the State Penitentiary at Angola.

On appeal, plaintiff does not contest the trial judge’s finding that Robert Lee Johnson deliberately and intentionally shot the plaintiff. Neither does plaintiff assert error in the trial judge’s finding that because of the intentional nature of his act, even though Robert was an insured, State Farm is not liable under the terms of the policy which excludes liability for intentional torts. Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1974, writ refused). Plaintiff, however, seeks to hold Mrs. Voorhies and her insurer liable on the basis of certain independent acts of negligence allegedly committed by her. In this latter regard, the trial judge in his written reasons for judgment stated as follows:

“. . . the evidence is equally convincing, that Virginia T. Voorhies is not liable for the actions of her son in this shooting episode. Her only connection with the incident is that it happened in her home. However, the evidence is most convincing that there was no fault or negligence on her part, and accordingly, she is absolved of liability in this case.”

We find no error in this conclusion.

In order to prove negligence on the part of defendant, plaintiff must not only show that defendant’s conduct was tortious but also that the acts complained of were a cause in fact of his injury.

Appellant asserts that Mrs. Voorhies was negligent in that she failed to warn the police officers that Robert was a 32 year old epileptic; he had not been taking his medication; and, he had been drinking beer.

Mrs. Voorhies candidly admitted that she did not inform plaintiff of Robert’s age or that he was an epileptic. Plaintiff failed however, to establish that Mrs. Voo-rhies knew or had reason to believe that Robert had not taken his medication or that he had been drinking. The record clearly establishes that Mrs. Voorhies did not know that Robert was armed or that there were any firearms in her home. The above being considered the only warning that Mrs. Voo-rhies could have given pertained to Robert’s age and physical condition. We fail to appreciate how the failure to warn of these facts, under the circumstances, amounted to negligent conduct. However, even conceding arguendo that her failure to warn of these facts was negligence, we do not find that such conduct was a cause in fact of the harm suffered by plaintiff.

In order for the negligent conduct to be a cause in fact of plaintiff’s harm, it must be shown to be a substantial factor in causing plaintiff’s injury. Some direct relationship is required between the negligent conduct complained of and the resulting injury. The negligent conduct must be a necessary ingredient of the resulting injury. The injury must be the natural, probable and foreseeable consequence of the negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Jones v. Robbins, 289 So.2d 102 (La.1974).

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . In addition to the weapon which he fired after he was taken into custody, a small handgun was found in Robert’s pocket.

      . The homeowner’s policy issued by State Farm to Mrs. Voorhies contains the following provision: . . Insured means . if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; . .

      .A provision of the State Farm homeowner’s policy reads: “THIS POLICY DOES NOT APPLY . . . TO BODILY INJURY OR PROPERTY DAMAGE WHICH IS EITHER EXPECTED OR INTENDED FROM THE STANDPOINT OF THE INSURED: . . .


text:
    ABBEVILLE LUMBER COMPANY, Plaintiff-Appellee, v. Lester James RICHARD et al., Defendants-Appellants.
    No. 6144.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.

      Deshotels & Deshotels, O. H. Deshotels, III, Kaplan, for defendants-appellants.
    Cooper & Sonnier by John E. Ortego, Abbeville, for plaintiff-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

This is a suit on an open account in which plaintiff seeks judgment against defendants, Sidney Richard and Lester James Richard, and recognition of a materialman’s lien on property owned by Sidney Richard. Lester Richard filed answer admitting that certain materials were furnished to him but denied any indebtedness to plaintiff. Sidney Richard answered denying his indebtedness to plaintiff and reconvened seeking damages from plaintiff for wrongful filing of the lien. After trial on the merits, judgment was rendered in favor of plaintiff against both defendants holding them to be solidarily liable to plaintiff in the amount of $2,787.65 plus interest and attorney’s fees. The judgment recognized plaintiff’s lien as valid and dismissed the reeonventional demand. Sidney Richard appealed. Lester Richard has not appealed and the judgment against him is now final.

The issue presented is whether Sidney Richard is personally liable to the plaintiff and whether the latter has a valid lien on the Sidney Richard property which secures the payment of the claimed indebtedness.

The facts giving rise to this litigation are not seriously disputed and may be summarized as follows.

Sidney Richard, a retired farmer, is the sole owner of a tract of land in Vermilion Parish containing approximately 80 acres. He resides on the property with his wife and son, Lester James Richard. At some time prior to June, 1975, Lester decided to open a horse racing track to be known as “Aeadiana Downs”. He secured estimates of the approximate cost of the endeavor and then approached his father concerning the financing of the project. It was agreed that Sidney would loan Lester the money needed, and would lease him a portion of his property on which the race track was to be constructed. On June 6, 1975, Mr. and Mrs. Richard executed a note and mortgage in the amount of $35,000.00 in favor of the Vermilion Bank & Trust Company. The proceeds of the loan were distributed by paying off a prior debt, in the amount of $15,000.00, that Lester owed the bank for past farming losses with the remainder $20,000.00, being loaned Lester for the construction of the race track. The latter sum was deposited to an account in Lester’s name.

On June 25, 1975, a written lease was executed, affecting approximately 60 acres of land, between Sidney Richard and his wife, as lessors, and Lester James Richard, as lessee, which was duly recorded on June 27,1975. The lease provided for a primary term of 25 years and for monthly rental payments to be made by the lessee in the amount of $300.00: The lease also contained the following pertinent provisions:

“Should this lease be cancelled by either party after the primary term hereof, LESSEE shall have six (6) months thereafter to remove any and all improvements thereon. It is hereby recognized that there are no improvements located on this property at the present time.
It is stipulated that the property is to be used for a bar and/or tavern together with a race track and LESSEE may erect such improvements as are necessary for same . . . ”

Though executed on June 25,1975, the lease was made retroactive to June 1, 1975.

Sidney’s residence is adjacent to the leased property and it is undisputed that he performed various tasks for his son to aid in the construction of the race track. He plowed and leveled the land with his tractor and helped Lester measure and extend the track when it was determined that this was necessary. On one occasion, he assisted a vehicle that had become stuck at the construction site. Sidney signed one invoice for materials delivered by plaintiff. When Lester was in the hospital, Sidney purchased several licenses which would be necessary for the operation of the race track with money furnished by Lester. It is undisputed that Sidney never received any remuneration for the services he performed. It is also undisputed that no rental payments were ever actually made. Instead, Lester executed promissory notes payable to Sidney every three or four months for the past due rent.

Some months following execution and recordation of the lease, plaintiff extended credit to Lester through an “open account” which had been opened on the basis of a recommendation from an acquaintance of the Richard family. A series of purchases were made on the account during January and February of 1976 which were not paid when due. In February, 1976, plaintiff filed a materialman’s lien on the property owned by Sidney Richard. On March 8, 1976, plaintiff filed the instant suit.

In his written reasons for judgment the trial judge, in finding Sidney Richard soli-darily liable with Lester and in recognizing plaintiffs lien as valid, stated:

“The court must now determine whether or not the involvement of Sidney Richard was sufficient to justify including him in the judgment and maintaining plaintiff’s lien rights against his property
Both Sidney and Lester maintain that there was never any agreement between them to share the profits of the racing operation. Sidney denies any other motive for his generosity than merely a desire to help his son earn a living by operating the track. Regardless of his motives, the facts indicate that a substantial business operation was underway which was financed entirely by Sidney Richard.
In addition, substantial improvements were erected on Sidney’s property which will eventually enure to his benefit according to the lease. Finally, the court feels that the lease itself was contracted under circumstances which indicate that its sole purpose was to shield Sidney and his property from further liability. As a result, the court finds that the work was done with the knowledge and consent of the owner so that LSA-R.S. 9:4801 applies and plaintiff is entitled to have its lien rights recognized against the property of Sidney Richard. See Teche Concrete, Inc. v. Moity, 168 So.2d 347 (La.App. 3rd Cir. 1965). Although the intention of the Richards may not have been fraudulent, the lease was certainly con-fected to limit Sidney’s liability to the amount he actually loaned Lester to construct the track. The fact that the lease was made retroactive to June 1, the fact that Lester never paid any rent money, and the circumstances surrounding the project itself, all point to the conclusion that the lease was a simulated transaction which the creditors are entitled to attack if it is done to their injury.”

We find these conclusions to be manifestly erroneous and reverse.

PRIVATE WORKS ACT

Although, plaintiff in its petition alleges that Sidney Richard contracted with it for the sale and delivery of certain building materials there is no evidence in the record to support this allegation. To the contrary, the record clearly reflects that Sidney Richard had no personal contact and conducted no negotiations of any kind with plaintiff’s officers or employees. All negotiations were between Lester Richard and plaintiff and all materials delivered were billed to Lester Richard and/or “Acadiana Downs”. In seeking to hold Sidney Richard personally responsible for the debt sued upon and in seeking to uphold the validity of its recorded lien plaintiff relies on the provisions of LSA-R.S. 9:4801 et seq.

LSA-R.S. 9:4801 et seq., provides a procedure whereby certain enumerated persons who have performed work or furnished material for the erection, construction, repair, or improvement of immovable property with the consent or at the request of the owner may assert liens against the property. Plaintiff contends that it is entitled to have its lien recognized against Sidney Richard’s property under R.S. 9:4801, claiming that the materials were furnished to the construction project on his property at his request or with his consent. Since no contract or bond was recorded plaintiff contends that it is entitled to a judgment against Sidney Richard declaring him to be personally liable. LSA-R.S. 9:4812.

Sidney Richard, on the other hand, contends that he is not personally liable to plaintiff and that its lien rights, if any, should attach only to the rights that Lester has under the lease. LSA-R.S. 9:4811 provides in pertinent part as follows:

“Where any work as hereinabove set forth is done or buildings or other improvements made, where the person for whom the work is done or with whom the contract is made, or by whom the work is done, is not the owner of the land upon which the work is located, then he shall be subject to all the obligations that are made incumbent on the owner, and the privileges shall operate upon whatever right the said person having the work done or doing the work may have to the use of the land as lessee. The privilege shall operate against the lease such person holds, if there is one, . . . ” (emphasis added)

In the leading case of Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (La.1962), our Supreme Court was faced with the following factual situation:

“By agreement both written and oral between the owner-lessor (defendant herein) and this tenant, the latter was authorized to undertake at his own expense the needed reconstruction to make the premises suitable for the purpose for which leased. The owner had personal knowledge that the reconstruction project was being undertaken and was personally present during the course of the reconstruction, and he had accompanied the tenant to the plaintiff-contractor’s office when the plaintiff furnished the tenant an estimate of the cost of the repairs; but the owner did not enter into any of the negotiations between the tenant and the contractor, nor did he indicate any personal responsibility for the cost of the repairs (nor, in fact, did he even know the estimated cost of the repairs) . . . ”

In the course of answering questions certified by this circuit based upon the above factual set-up the Court stated as follows:

“We therefore hold that mere consent or acquiescence of the owner to work being done on leased premises by the lessee or as a result of a contract awarded by the lessee is not sufficient to render the land and improvements subject to the privilege for material, labor, and similar services imposed by R.S. 9:4801; nor does the owner’s knowledge of improvements on the premises make the employer his, the owner’s agent, so as to impose liability on the owner for wages, materials or claims of the employer’s workmen. This is not to say, however, that the owner, through his conduct, may not under certain circumstances create an estoppel which will prevent his contesting the rights of the materialman, laborer, or similar claimant.”

We find that the instant case fits squarely within the rule of law expressed above. The recorded lease between Lester and Sidney Richard served as notice that Lester was merely a lessee, and not the owner of the premises on which the race track was to be constructed. The materials were ordered by the lessee and were incorporated into a structure located on the leased premises. Accordingly, we determine that absent the Richard lease being declared a simulation or Sidney Richard being decreed estopped to contest the lien rights asserted by plaintiff the latter’s lien rights must be held to attach only to Lester’s interest in the lease, and not to the property itself.

SIMULATION

The trial judge, in his written reasons for judgment, found the lease between Sidney and Lester Richard to be a simulated transaction, citing Teche Concrete, Inc. v. Moity, 168 So.2d 347 (La.App. 3rd Cir. 1965). Accordingly, the trial court held LSA-R.S. 9:4801 applicable and LSA-R.S. 9:4811 inapplicable.

We agree that LSA-R.S. 9:4811 does not and should not protect parties to a simulated lease. Williams v. Smith, 340 So.2d 401 (La.App. 2nd Cir. 1976) and cases therein cited. However, we disagree with the trial court’s conclusion that the lease in question is a simulated lease.

The Teche Concrete case, supra, which was apparently relied on by the trial judge, is inapplicable to the case at bar because of numerous distinguishing characteristics. In that case, unlike the instant case, the lease provided for immediate termination for non-payment of the rent and that any improvements made on the premises at termination would belong to the lessor. We also note that the lessors in that case took possession of the property immediately after suit was filed to cancel the lease. Defendant has never sought cancellation of the lease nor has he attempted to exercise any .dominion over the improvements constructed on the leased premises.

When attacking a transaction as being simulated, plaintiff may introduce evidence tending to show the suspicious and doubtful character of the transaction. Once this has been done, the burden then shifts to the defendant to rebut plaintiff’s inferences that the transaction is simulated. In Ingram v. Freeman, 326 So.2d 565 (La.App. 3rd Cir. 1976, writ denied), this court said:

“The second basis for a presumption of simulation arises when, the party asserting the simulation produces evidence which creates a highly reasonable doubt or suspicion concerning the honesty or validity of the transaction. Such a showing establishes a prima facie case of simulation and the burden is thereby shifted to the defendants to demonstrate the validity of the transaction under attack.” (citations omitted)

We find it significant that in Teche Concrete, supra, the defendant did not attempt to rebut the inference created by the plaintiff’s evidence.

In the instant case, the trial judge apparently reached his conclusion that the lease was a simulated transaction because of the following circumstances:

(1) The lease was made retroactive to June 1, 1975.
(2) The lessee never paid any of the rent.
(3) The improvements will enure to the benefit of the lessor.
(4) The lessor assisted the lessee in improving the leased premises.
(5) The sole purpose of the lease was to shield the lessor and his property from further liability.

We deem it appropriate to briefly discuss each of the above.

Unlike the trial court, we attach no significance to the fact that the lease when executed was made retroactive to June 1, 1975. The record indicates that lease negotiations between Sidney and Lester Richard were in progress prior to June 1, 1975. Presumably, the parties did not wish to execute and record the lease prior to confection of the loan with the Vermilion Bank & Trust Company which was finalized on June 6, 1975. It is not unusual for a written lease when executed to be made retroactively effective to a date which coincides with the commencement of lease negotiations. In any event, the lease in question was a matter of public record long before plaintiff extended credit to Lester Richard. We cannot appreciate how the fact that the parties chose to make the lease retroactive to June 1,1975 operated to plaintiff’s detriment or served to cast any doubt or suspicion on the validity of the lease.

It is not disputed that Lester never made any rent payments to his father under the terms of the lease. While the non-payment of rent under certain circumstances may give rise to a presumption of simulation, we do not feel that this is the situation presented here. The record clearly establishes that Lester Richard had no funds with which to make the rental payments and that Sidney anticipated that rental payments would be made after Lester began his race track operation. In this latter connection we note, as did the trial judge, that Lester executed a series of promissory notes to his father for the past due rent payments. It is settled law that when any consideration, no matter how inadequate, has been paid, the transaction is not a simulation. Smith v. Richardson, 200 So.2d 897 (La.App. 2nd Cir. 1967); Mut v. Mut, 222 So.2d 100 (La.App. 1st Cir. 1969); Russell v. Culpepper, 337 So.2d 226 (La.App. 3rd Cir. 1976, writ granted La., 340 So.2d 314, 315, December 8, 1976).

In his reasons for judgment, the trial court noted that the improvements erected by the lessee will eventually enure to the benefit of the lessor. We do not find that this is necessarily so. Referring to pertinent provisions of the lease, supra, we observe that if the lease is cancelled after expiration of the primary term the lessee is allowed a period of six months within which to remove all improvements. The lease being silent as to the lessee’s right to remove improvements during the term of the lease the situation would be governed by R.C.C. Article 2726 which allows a lessee to remove improvements made by him provided he leaves the thing in the state it was in when he received it. As previously indicated Sidney Richard has never sought cancellation of the lease and presumably same is still in force and effect with all attendant rights, including the right of the lessee to remove the improvements upon lease cancellation.

It is undisputed that Sidney did help his son by performing various services before and during the construction of the race track. We do not find it unusual that a father would advise and assist his son in such matters. Sidney was retired and lived right next to the construction site. He helped his son “just to pass the time”. Also, we do not think that it is unusual for a father to loan his son a sum of money to help establish him in a business. We do not believe that this creates any suspicion or doubt concerning the validity of the transaction.

Even if the evidence does create a suspicion or doubt we conclude that Sidney Richard successfully carried the burden of proof imposed upon him. Accordingly, we are of the opinion that the trial judge committed manifest error in finding the lease to be a simulation.

ESTOPPEL

In Frage v. Muffoletto, supra, the Supreme Court recognized that under certain circumstances, a lessor of- property could conduct himself in such a manner as to find himself estopped from contesting the rights of a materialman or other lien claimant. In American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (La.1967), our Supreme Court stated:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.” (citations omitted)

There are three elements necessary for an estoppel: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). We find that all three elements are lacking in the instant case. The record indicates that Sidney never personally contracted for the purchase of any materials from plaintiff. He signed one delivery slip only because there was no one else around to sign when the materials were delivered. Furthermore, the record is devoid of any evidence that plaintiff relied on any conduct of Sidney Richard in extending credit for the materials delivered.

When Lester opened his account with plaintiff, he was introduced to the yard manager by a Mr. Pat Thompson. According to the testimony of plaintiff’s yard manager, Mr. Thompson- stated that the Richard family had been customers of his for years and he felt that it would be all right to let Lester have whatever he would need. On cross examination, Mr. Frederick, the yard manager, candidly admitted that he was only opening an account for Lester Richard. It was not understood at the time that Sidney Richard was to be indebted for the materials purchased.

We find that Sidney Richard was not in any way connected with the purchase of the materials furnished by plaintiff. The account was opened in the name of Lester Richard and he was the person who had dealings with Abbeville Lumber Company. We are unable to find any evidence in the record showing that plaintiff relied on any representations of Sidney Richard or that it suffered any detrimental change in position because of Sidney’s conduct.

The case of Henderson v. Rossi, 185 So.2d 92 (La.App. 4th Cir. 1966), presented issues similar to the case at bar. In that case, a lessee hired plaintiff to perform work on the leased premises with the knowledge and consent of the lessor. The lessor even provided some of the materials used by the plaintiff. As plaintiff was unable to locate the tenant, he filed a lien and brought suit against the lessor. The court held that the lessor was not estopped to deny liability. Plaintiff had been hired by the lessee and the lessor had done nothing to cause plaintiff to believe that he was doing the work for the lessor or for his benefit.

Estoppels are not favored in law because they bar the normal assertion of rights. Wilkinson v. Wilkinson, supra; American Bank and Trust Company v. Trinity Universal Insurance Company, supra.

JOINT VENTURE

In its petition, plaintiff asserts that Lester and Sidney Richard were engaged in a “joint adventure” to build and operate the race track. We find no merit in this contention as the necessary elements for a joint adventure are not present in the instant case. In Westenberger v. State, Department of Education, 333 So.2d 264 (La.App. 1st Cir. 1976), the court stated:

“A joint venture is a special combination of two or more persons who engage in a specific venture for their joint profit or gain, without an actual partnership or corporate designation. .
Moreover, to constitute a joint venture, each party must have equal right to direct and govern the conduct of the other involved, as well as some voice in the control and management of the business undertaking which is the subject of the parties’ relationship.” (citations omitted).

In the instant case, the record does not reflect any agreement between Lester and Sidney to share in the profits and losses of the race track, nor does it show that Sidney exercised any degree of control over the project.

UNJUST ENRICHMENT

Finally, plaintiff in its brief suggests in the alternative that it is entitled to recovery against Sidney Richard under the theory of unjust enrichment.

Recovery under the theory of unjust enrichment was recognized by our Supreme Court in the case of Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (La.1967). Five requirements were recognized as necessary for the doctrine to be applicable: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and impoverishment; (4) absence of justification for the enrichment and impoverishment; and, (5) absence of a remedy provided by law. Considering the elements formally set forth in Minyard, supra, we conclude that several of the conditions for application of the doctrine are not present in the instant case.

It has not been shown that there is an enrichment to the lessor in that the lease specifically provides that any improvements remain the property of the lessee and may be removed by him at the termination of the lease.

Even assuming that an enrichment can be shown in the instant case, we note that there is a legal cause which justifies such enrichment, i. e., the contract of lease and LSA-R.S. 9:4811. In addition, the further condition specified in Minyard, supra, that plaintiff show an absence of another legal remedy is lacking in that plaintiff clearly has a remedy against the lessee and the buildings constructed on the premises which admittedly belong to him. In this latter connection, we again note that the lessee remains the owner of these buildings and retains the right to remove them upon termination of the lease. We again observe there is no evidence in the record to indicate that the lease has ever been cancelled or that the lessor has taken possession of the buildings.

DEFENDANT’S RECONVENTIONAL DEMAND

As previously indicated, Sidney Richard seeks a judgment in reconvention for damages he allegedly sustained as a result of the filing by plaintiff of a lien against his property. The trial court properly disallowed this reconventional demand. It is well settled that damages are not allowed for the wrongful filing of a lien unless the person causing the inscription of the lien is found to have acted in bad faith or with malice. Patterson v. Lumberman’s Supply Company, Inc., 167 So. 471 (La.App. 2nd Cir. 1936); Loeb v. Johnson, 142 So.2d 518 (La.App. 1st Cir. 1962); Dickson v. Moran, 344 So.2d 102 (La.App. 2nd Cir. 1977).

Plaintiff-in-reconvention introduced no evidence to establish bad faith or malice on the part of Abbeville Lumber Company. To the contrary the record supports a finding that defendant-in-reconvention acted in good faith and upon the advice of counsel.

For the above and foregoing reasons the judgment of the trial court insofar as it awards judgment against Sidney Richard and casts him for costs and insofar as it recognizes the materialman’s lien filed by plaintiff against the property of Sidney Richard as being valid and subsisting is reversed and set aside. Accordingly, it is ordered, adjudged and decreed that plaintiff’s demand against Sidney Richard is dismissed with prejudice. It is further ordered that the materialman’s lien filed by plaintiff, recorded in Mortgage Book 376, Folio 507, Entry No. 273707 records of Vermilion Parish, Louisiana, insofar as it purports to bear upon and effect the following described property:

The Northwest quarter of the Southwest quarter; The North half of the Southwest Quarter of the Southwest Quarter of Section 11, Township 13 South, Range 2 East, Vermilion Parish, Louisiana.

is ordered cancelled and erased from the records of Vermilion Parish, Louisiana.

The judgment of the trial court insofar as it dismisses the reconventional demand filed by Sidney Richard is affirmed. All costs of this appeal are assessed to plaintiff-appel-lee, Abbeville Lumber Company.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . At trial, defendants filed an exception of non-joinder of an indispensable party, i. e., the “joint venture” between Sidney Richard and Lester James Richard. We find no merit in appellant’s suggestion that the district court erred in failing to sustain the exception. For the reasons set forth in the body of this opinion, we find that no joint venture existed and, in any event, we note that both of the parties to this alleged joint venture were properly before the court as defendants to this action.

      . Though the lease specifically allows the lessee six months in which to remove any improvements if the lease is cancelled after the primary term, we note that the lease is silent as to the lessee’s right to remove or not remove during the term of the lease. We are of the opinion that this situation is governed by LSA-C.C. Art. 2726 which allows a lessee to remove any improvements made by him provided he leaves the thing in the state it was in when he received it.

      . In a recent article authored by Justice Tate, 51 Tul.L.Rev. 446, he suggests that the five conditions for application of the doctrine of unjust enrichment as enunciated in Minyard, supra, should not be so rigidly applied or strictly adhered to so as to avoid the doctrine’s application where recovery is justified. We have carefully reviewed the record in this case and are of the view that even if the rules for application of the doctrine as expressed in Min-yard are relaxed or given a more liberal construction, the circumstances of this case do not warrant the application of the doctrine of unjust enrichment.


author: DOMENGEAUX, Judge.

text:
    Diana Ernest VEAZIE, Plaintiff and Appellant, v. CONSOLIDATED COMPANIES et al., Defendants and Appellees.
    No. 6147.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Seidel & Bailey by Fred K. Bailey, Lafayette, for plaintiff and appellant.
    Voorhies & Labbe by Edwin G. Preis, Jr., Lafayette, for defendants and appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

This tort suit arose out of a minor accident which occurred on November 15, 1974, in Lafayette, Louisiana. The plaintiff was travelling down Olivier Street in her Volkswagen automobile when she came to a stop behind defendant Consolidated’s truck, which was being driven by defendant Steve Jumonville. Jumonville negligently backed into plaintiff’s ear at a speed of approximately five miles per hour, causing damage to the automobile and, allegedly, injury to plaintiff. The case was tried before a jury, and the jury awarded $1,370.00 to plaintiff. Plaintiff disputes the amount of the award, and has taken this appeal. We affirm.

Plaintiff alleges that she suffered serious physical injury, including nausea, nose bleed, pain and muscle spasms in the left leg coupled with periodic numbness, low back pain, headaches, sleeplessness, and restricted movement of the neck, head and back. Immediately after the accident, she went to the emergency room at Lafayette General Hospital and was treated by Dr. Zerben Bienvenu. Following that treatment she was seen by Dr. Denbo Montgomery and Dr. J. Boring Montgomery, and was administered physical therapy. None of these doctors testified at trial.

Finally, having been unsuccessful in obtaining any relief, plaintiff consulted Dr. L. Lazaro in Opelousas. Doctor Lazaro, an orthopedic specialist, testified at trial that he was unable to find any objective reason for plaintiff’s complaints. He performed a myelogram on plaintiff, but received normal results, indicating no problems with the spinel He recommended that she see Dr. J. D. Coíte, a psychologist, in Lafayette, Louisiana, hoping that some light would be shed on plaintiff’s unexplained complaints.

Doctor Cole saw plaintiff on three occasions. He administered a battery of tests to plaintiff, and testified that his preliminary diagnosis was borderline psychotic reaction with some underlying paranoia and hysteric symptoms. He felt that she was not a malingerer, and that she felt real pain. He also testified that the cause of her physical and mental pain was the accident, but that her psychological problems or personality trait was an old problem which developed long before plaintiff was involved in the accident which forms the basis of this suit. Also, he stated that Mrs. Veaz-ie did not have a post traumatic neurosis as a result of the accident.

Doctor Cole only saw the plaintiff these few times, and then only for evaluation, and not for treatment. He recommended therapy, indicating that if plaintiff would continue in therapy for as little as twelve weeks, her problems could be cured or at least greatly alleviated. However, for some reason plaintiff did not continue these consultations. Plaintiff was not evaluated by any psychiatrist or neurologist.

The jury rendered a general verdict, and we have no way of knowing the breakdown of the damages it awarded. Plaintiff claims substantial special damages, including claims for medical bills, maid services while she was ill, and lost wages. She also claims $15,000.00 in general damages for pain and suffering.

We cannot say that the jury manifestly erred in this award. The jury must have felt that plaintiff did not satisfactorily prove her case to the extent she claimed. There was no proof of objective physical reasons for her pain, and the only expert testifying to the mental reasons for her suffering stated she did not suffer from post-traumatic neurosis. The latter expert also admitted that there possibly may have been other underlying reasons, other than the accident, which could have caused plaintiffs symptoms to manifest themselves.

Also, the trial judge correctly instructed the jury as to the effect of plaintiff’s failure to call her other physicians as witnesses, which effect is that the jury may infer that their testimony would have been unfavorable to plaintiff. The jury may have made that inference. Furthermore, the jury could very well have been dissatisfied with Doctor Cole’s testimony that the accident caused some of plaintiff’s problems.

A review of the record does not preclude a finding by the jury that plaintiff’s persistent complaints were not satisfactorily substantiated by the medical evidence, and that her psychological problems were not related to the accident to the extent which she alleged.

According to Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), a Court of Appeal can disturb an award made by a trial court only when the record clearly reveals the trier of fact abused its discretion in making its award. Although we feel that the jury award herein is low, nevertheless, we cannot say that the jury abused its “much discretion” in the award made.

For the above and foregoing reasons, the judgment of the district court is affirmed. Costs on appeal to be assessed against plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge. WATSON, J.,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Guy O. DYESS, Defendant-Appellant.
    No. 6152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    George L. Carmouche, Lake Charles, for defendant-appellant.
    D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Robert J. Jones, R. Gray Sexton, Johnie E. Branch, Jr. by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-ap-pellee.
    Before DOMENGEAUX, WATSON, and FORET, JJ.
   DOMENGEAUX, Judge.

The Louisiana Department of Highways expropriated the property of defendant, Guy O. Dyess, for the purpose of building an interstate bypass in Lake Charles, Louisiana. This was accomplished in 1969 through the procedures provided in La.R.S. 48:441 et seq., the “quick taking” statute. The Department, in accordance with that law, deposited $26,169.00 in the registry of the court as just compensation.

Defendant answered the suit, and reconvened, praying for $75,000.00 for the land and improvements, and $50,000.00 for severance damages. His reconventional demand was dismissed without prejudice on September 2, 1976, for failure to prosecute his claim for over five years. Defendant then filed another answer on November 8, 1976, making the same demands as in his first answer.

Trial was held in December of 1976, and the trial judge rejected defendant’s recon-ventional demands. Defendant has taken this appeal. We affirm.

The subject property consists of two lots, one of which fronts on West Prien Lake Road and the other on Ernest Street. The lots connect in the rear to form an L-shaped configuration. Lot 12, the West Prien Lake Road property, measured 86.4 feet in front and 315.8 feet in depth. Lot 4, the Ernest Street property, measured 79 feet in front and in depth 172.7 feet. The square footage of both lots combined was 40,926.4 feet. The improvements on the property consisted of two brick veneer dwellings, a frame house and a storage shed on Lot 12, and a frame dwelling and carport on Lot 4. The property was zoned commercial but was being used for residential purposes at the time of the taking.

The extreme southern part of Mr. Dyess’ property, containing 19,885 square feet, was taken, leaving the northern portion of his lot on West Prien Lake Road, with a depth of 236.8 feet and 250.3 feet on its east and west sides, respectively. Included in this taking was the house and carport on Ernest Street and the frame house, storage shed and a portion of the small brick veneer dwelling on Prien Lake Road.

The Department’s two expert appraisers were Normand Terry and Stanley Tiger. Both of them appraised the property at the time of the taking, and said that the highest and best use of the property was residential in transition to commercial property. Terry, using the comparable sales approach, valued the property at $10,865.00 for the land alone, and for the improvements, $12,500.00. Tiger estimated the value of the property to be $12,130.00 for the land alone, and $14,019.00 for the improvements.

Defendant Dyess did not have the property appraised until 1976. At that time he employed as experts, Kermit Williams and Curtis Book who both appraised the property as of 1969, the time of the taking. However, neither of these men had an opportunity to view the property as it was in 1969. Consequently, the value of the improvements as was estimated by the Department’s appraisers was accepted by Williams and Book. The estimate of the value of the land itself made by the defendant’s appraisers did not agree with either of plaintiffs estimates. Book and Williams found the highest and best use of the property to be commercial, and valued it as such. Williams’ estimate of the value of the land alone was $1.23 per square foot and Book’s estimate was $1.30 per square foot, for total values of $24,458.50 and $25,980.00 respectively. As can be seen by comparison, these values greatly exceed those placed on the property by plaintiff’s appraisers. The defendant’s appraisers also used comparable sales approach to make their valuations.

One of the main reasons given at trial for the higher, commercial valuation reached by Book and Williams was the development of Prien Lake Mall on West Prien Lake Road, across from the subject property. Williams testified that the proposed building of the mall was a certainty at the time of the taking. Terry, on the other hand, stated that the mall proposal was only a rumor at that time and did not become a reality until some time subsequent to the expropriation.

The trial judge found the three issues for his determination to be: (1) the value of the land taken; (2) the value of the improvements taken; and (3) the amount of severance damages incurred, if any.

The correct measure of compensation in this type of expropriation case is the market value of the thing taken, which is the price which would be agreed upon by a willing and informed buyer and seller in the condition in which the property stood at the time of the expropriation. State, Dept. of Highways v. Wolfe, 252 So.2d 483 (La.App. 3rd Cir. 1971).

The market value of condemned property means the worth of the land considered in regard to its best and highest use, which is the manner in which the property can be reasonably used in the not too distant future. State, Department of Highways v. Jenkins, 207 So.2d 380 (La.App. 3rd Cir. 1968).

The burden of proving alleged severance damages to the remainder of property involved in an expropriation proceeding rests upon the owner who must establish such damages with legal certainty by a preponderance of the evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961).

The parties stipulated at trial to the value of the improvements. The judge accepted the valuation of the land made by the State’s appraisers to be correct. He made no severance damage award. We quote his written reasons in part:

“ . . . Although some of the lots on West Prien Lake Road had been zoned commercial, only a small number thereof close to Ryan Street and some distance East of defendant’s property were then being used for commercial purposes. Ryan Street and East Prien Lake Road had a great many commercial establishments situated thereon at the time. Practically all of the improvements on West Prien Lake Road were being occupied as residences, but there was talk of the construction of a large shopping center opposite the defendant’s property. Also, the sales in this area indicated that the purchasers were acquiring such property for speculative commercial purposes. There was no definite evidence that the large shopping center project had reached the point where its construction was a certainty.
When the case was tried on December 14, 1976, the rear portion of the subject lot was being rented by the owner for residential purposes.
Both Messrs. Terry and Tiger found that there was no decrease in the value of the land remaining after the taking, and therefore concluded that no severance damages had resulted thereto.
On November 5, 1971, Mr. Dyess sold his entire remainder, with improvements, to Ball’s Fried Chicken, Inc., for $45,-000.00. This amounted to $2.14 per square foot, or $5.25 per front foot. Unquestionably, there was an increase of the value of all property in this area from 1969 to 1971, because of the commercial development and inflation. However, there is nothing in the record to indicate just what increase resulted from these factors. Certainly, the sale of the subject property on November 5, 1971,'does not reflect that its loss of an exit on Ernest Street or proximity to the interstate highway by-pass lessened its desirability or market value.
Each one of the experts who testified in this case expressed what he considered were valid reasons for his consideration and adjustments of comparable sales and the basis for his final conclusions. However, most of these were simply personal judgment factors. This court certainly cannot say that the defendant’s experts’ conclusions were better grounded on fact and reason than those of the plaintiff’s experts. On the contrary, it is more inclined to agree with the latter. Since the defendant bears the burden of proof in order to recover additional compensation in this expropriation case, the court must necessarily conclude that it has failed in this respect.

We cannot say that the trial judge erred in his judgment. He has much discretion in evaluating and weighing evidence given by expert witnesses. He was in a much better position than we are in to evaluate testimony, given his familiarity with the growth and development of Lake Charles at that time. As he correctly pointed out, the burden of proof for additional damages and severance damages lays with the defendant. After a careful review of the record, we see no evidence that would compel a reversal.

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

AFFIRMED.

WATSON, J.,

concurs, with the observation that the highest and best use of the subject property was commercial under the jurisprudence if it was “residential in transition to commercial.”

FORET, J., concurs.

      . The trial judge’s action in ordering defendant’s reconventional demand dismissed without prejudice and the defendant’s filing another answer, is based on the case of State, Department of Highways v. Ott, 262 So.2d 397 (La.App. 1st Cir. 1972), writ refused June 29, 1972.


author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    Mrs. Curtis LEGER (Shirley Wilson Leger), Plaintiff-Appellee, v. Andrew BEGNAUD, Defendant, Manson Morello, Appellant.
    No. 6156.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by E. Randall Lolley, Lafayette, for appellant.
    Boagni & Genovese by James T. Ge-novese, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

Manson Morello, who did not appear as a party in the proceedings in the trial court, has appealed the default judgment in this case which quieted the tax title and recognized plaintiff, Mrs. Curtis Leger (Shirley Wilson Leger), as the sole owner of property described as follows:

1 Lot 3.831 acres lot # 2, in Section 25, T-7-S, R-3-E

The plaintiff opposes the appeal and has filed a peremptory exception of no cause and no right of action in this court. Defendant, Andrew Begnaud, was not served and did not make an appearance in the trial court except through a curator ad hoc, and has made no appearance in this court.

The issues are as follows:
(1) does Manson Morello have the right to appeal?
(2) if so, is the judgment rendered by the trial court defective, and should the judgment be reversed and the proceeding remanded?

The facts are not complicated. Mrs. Leger filed a petition in the trial court alleging: that she is the sole and only owner of the property described above; that she was the successful bidder on the property at a tax sale conducted by the sheriff of St. Landry Parish on June 10, 1970; that the sheriff executed a tax deed to her; that more than five years have elapsed since the date of the registry of the tax title and she is now entitled to be confirmed and quieted in her ownership of the property in accordance with LSA-R.S. 47:2228 and related statutes.

The tax deed by which Mrs. Leger claims to have acquired the property was not introduced into evidence at any time nor was a certified copy attached to her petition. The record does not reflect an attempt to make service of process on Andrew Beg-naud, the person to whom the property was allegedly assessed at the time of the tax sale.

There appears in the record a motion and order to appoint a curator ad hoc to represent Andrew Begnaud and the curator ad hoc accepted service, waived citation but reserved all other rights. The curator ad hoe prepared and filed a written answer on behalf of Begnaud, denying the allegations of plaintiff’s petition on information and belief.

A transcript of the proceedings which took place on January 11, 1977 is contained in the record. Present were the attorney for plaintiff and the curator ad hoc. The plaintiff testified to the various allegations of her petition. (TR. 2-4) The curator ad hoc also gave testimony. He verified that he had been appointed to represent Beg-naud; that he did not find a double assessment; and that, according to his information, Mr. Begnaud “ . . . was still the current owner . . . ” of the property. (TR. 5) No tax deed was introduced in the proceedings nor was any evidence presented concerning service on Begnaud or the fact that he was an absentee.

On the date reflected in the transcript of the court proceedings, a judgment was signed by the trial court confirming Mrs. Leger as owner and quieting title in her name.

As to the first issue, whether Morel-lo can appeal, the provisions of LSA-C.C.P. art. 2086 are controlling. It reads as follows:

“A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.”

In his petition for appeal, Morello affirmatively asserted that he is the owner of the property forming the basis of the suit and that he would have had the right to intervene in the trial court. The law exacts no additional requirement and we conclude that Morello has the right to appeal. Lamp v. Willowdale Nursing Home, Inc., 296 So.2d 442 (La.App. 4 Cir. 1974).

The next issue is whether there are vices in the proceedings and deficiencies in the evidence, requiring the reversal of the judgment by the trial court. It is elementary that one seeking to prove his title acquired in a tax sale must not only allege but also prove up his tax deed. Cf. Xeter Realty v. Samorini, 135 La. 976, 66 So. 318 (1914). The plaintiff did not do so in these proceedings. It is also elementary that, before a curator ad hoc can be appointed to represent an absentee, there must be a showing that the defendant is in fact an absentee, usually by demonstrating that service was attempted but failed. Wood v. Hyde, 209 So.2d 51 (La.App. 4 Cir. 1968) There is no such showing in these proceedings. Therefore, on at least two different grounds, the judgment of January 11, 1977, is invalid and must be set aside. For the reasons assigned, the judgment of January 11, 1977 of the Twenty-Seventh Judicial District Court recognizing Mrs. Curtis Leger (Shirley Wilson Leger) as owner of the following described property:

1 Lot 3.831 acres lot # 2, in Section 25, T-7-S, R-3-E

is reversed and set aside, and this cause is remanded for further proceedings. The peremptory exception of no right and no cause of action filed in the court by plaintiff-appellee and relating to the petition for appeal is overruled.

Costs of the appeal are taxed against the plaintiff-appellee.

REVERSED AND REMANDED.

DOMENGEAUX, Judge,

concurring.

I agree with the reversal and remand, but will elaborate further on the rights of Mor-ello to appeal. Appellee, Mrs. Leger, contends that Morello has no right to appeal, asserting this claim by means of the peremptory exception of no cause of action and no right of action.

In support of the exception of no cause of action, appellee contends that Morello has failed to represent and substantiate his interest in this case which appellee maintains is a requisite under Louisiana Code of Civil Procedure Articles 1091 and 2086. This reasoning by appellee is circuitous. The reason that Morello filed this appeal was to obtain an opportunity to present to the Trial Court evidence of his ownership interest in the subject property. All that is necessary for appellant’s right to appeal is that he be aggrieved by the Trial Court judgment. If appellant is indeed the owner of the property, as he urges, then certainly he would be aggrieved by the Trial Court judgment. The petition for appeal filed by Manson Morello clearly recites that he claims the ownership of the property forming the basis of this lawsuit. This allegation alone is sufficient to defeat appellee’s exception of no cause of action, for the law of Louisiana is clear that before an exception of no cause of action can be maintained the allegations of a petition (and attached exhibits) must on their face, without viewing extrinsic evidence, show that a party has no cause of action. Furthermore, the reasoning of appellee overlooks the fact that an appellate court cannot view anything that is not in the record of the trial court proceeding at the time of the appeal. If an appellant in circumstances like that presented in this case had to “substantiate his claim” in the manner in which appellee contends, then Article 2086 would be effectively read out of the Code of Civil Procedure. There is no manner in which an appellant in these circumstances can so substantiate his claim with us, since any evidence in support thereof would not be a part of the record and could not be considered by the appellate court. It is clear that Morello, by alleging that he has an interest in the property and is aggrieved by the judgment, has made sufficient allegations to defeat the exception of no cause of action and has sufficiently alleged grounds for filing this appeal herein.

DOMENGEAUX, J., concurs and assigns reasons.