author: FRED W. JONES, Jr., Judge. PRICE, Judge. FRED W. JONES, Jr., Judge,

text:
    SUCCESSION OF Stella Lea WILLIAMS. Rachel Beth Williams KLEINPETER, Plaintiff-Appellant, v. Milton Lea WILLIAMS, II and Charlotte Anne Williams, Defendants-Appellees, Milton L. Williams, Intervenor-Appellee.
    No. 14548.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 1981.
    On Rehearing Nov. 2, 1981.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Pursuant to a joint petition, on April 25, 1978 Rachel Williams Kieinpeter along with her niece and nephew were placed in possession of the succession of Stella Williams, deceased mother of Mrs. Kieinpeter and grandmother of the other two petitioners. On May 8, 1978 Mrs. Kieinpeter filed a rule against her niece and nephew to correct the judgment of possession to reflect that plaintiff-in-rule was the sole heir of her mother by virtue of her brother’s renunciation of his interest in the decedent’s estate. Defendants-in-rule answered, pleading that their aunt was estopped to deny her judicial confession that through representation of their father they were heirs to the succession. Their father, Milton Williams, intervened, alleging that his renunciation of his mother’s succession was conditioned upon execution by his sister of the joint petition and that this constituted a judicial confession by Mrs. Kieinpeter that the Williams children were entitled to an undivided one-fourth interest each in their grandmother’s estate.

The trial judge sustained the plea of es-toppel, filed on behalf of defendants-in-rule and the intervenor, and rejected the demands of Mrs. Kleinpeter, who appealed this judgment.

Context Facts

Stella Lea Williams, whose husband predeceased her, died intestate at her domicile in Shreveport on March 7, 1978. The decedent was survived by two children, Rachel Williams Kleinpeter of Baton Rouge and Milton Williams of Shreveport.

With the approval of his sister, Williams retained a Shreveport attorney, who had represented Williams for many years, to settle the succession of their deceased mother. On March 14, 1978 this attorney filed on behalf of the two heirs a petition to have a Notary Public appointed to search for a testament. Attached to the petition were an affidavit of heirship and an affidavit executed by the heirs attesting to the correctness of the factual allegations of the pleading. In the meantime Williams expressed to the attorney a desire, for tax purposes, to have his inheritance by-pass his estate and vest directly in his two children. After researching the issue, the attorney advised Williams that his goal could be accomplished by the renunciation of his mother’s succession and the subsequent filing of a joint petition by his sister and his two children requesting that they be sent into possession of the succession in the proportion of an undivided one-half interest in the sister and an undivided one-fourth interest in each of the children.

On April 17,1978 the Shreveport attorney mailed to Mrs. Kleinpeter in Baton Rouge the following documents for signing:

(1) A detailed descriptive list, the preamble to which recited that Mrs. Kleinpeter, her niece and nephew were the joint petitioners for possession, that the factual allegations of the joint petition were correct, and that they accepted the succession unconditionally. Milton Williams was not listed as a joint petitioner.
(2) A state inheritance tax return, showing the heirs as Mrs. Kleinpeter, her niece and nephew, with the taxes computed on the basis that Mrs. Kleinpeter was receiving V2 of the estate and the Williams children Vi each. Milton Williams was not listed as an heir.
(3)A cash deed under the terms of which immovable property belonging to the Williams estate was conveyed to Alan G. Pierce. Named as vendors were Mrs. Kleinpeter, the Williams children and Milton Williams (who along with his sister already owned an interest in this property by inheritance from their deceased father).

It was disputed whether, along with these described papers, the Shreveport attorney also mailed a copy of the joint petition and the judgment of possession. Be that as it may, it was established that Mrs. Kleinpeter returned to Baton Rouge from a Houston trip on April 22, 1978 and signed the documents on April 24, 1978. Where a Notary Public was required that official was Mrs. Kleinpeter’s husband, a veteran Baton Rouge attorney.

On April 18, 1978, Milton Williams executed an instrument in authentic form, prepared by the Shreveport attorney, under which he renounced his interest in his mother’s succession. Mrs. Kleinpeter did not learn of this until later.

Since the loan closing for the transaction involving the property described in the cash deed (residence formerly occupied by the decedent) was scheduled for April 25, 1978, Mrs. Kleinpeter and her husband traveled to Shreveport that morning, bringing to the office of the attorney handling the succession the papers signed by Mrs. Kleinpeter. The attorney was in conference, but his secretary handed to the Kleinpeters copies of all the succession pleadings, including a copy of the act of renunciation executed by Milton Williams.

The Kleinpeters then went to the office of Milton Williams where Kleinpeter expressed concern over title complications which he believed would result from Williams’ renunciation and the manner in which the succession pleadings were being handled. The same concern was voiced shortly thereafter in a telephone conversation between Kleinpeter and the Shreveport attorney, who had been called by Williams to discuss the question raised by Kleinpeter. Although there was some dispute about the precise language used by Kleinpeter in this telephone conversation, the gist of his complaint was that his wife might be inconvenienced later by the necessity for executing instruments to clear up title problems.

The Shreveport attorney apparently did not share Kleinpeter’s concern since he immediately proceeded to file the joint petition, with accompanying papers, and to procure the signing of the judgment of possession.

On the afternoon of April 25, 1978 the Kleinpeters, Milton Williams and his daughter (who had a power of attorney from her brother) met with the vendee of the succession property in the office of another Shreveport attorney for the loan closing. The necessary papers were signed. At no time during this meeting did the Kleinpet-ers express any reservations about the manner in which the succession was handled or the possibility of title complications. The attorney handling the loan closing explained to the vendors that the loan proceeds would be distributed later. However, by letter dated April 26, 1978 Kleinpeter advised the attorney that his wife would not accept any of the proceeds from the sale, and the check remitted to her was later returned.

We now proceed to a discussion of the significant legal issues posed by this appeal.

Effect of Act of Renunciation

Pertinent to a discussion of this issue are the following articles of the Louisiana Civil Code:

Art. 1022: The portion of the heir renouncing the succession, goes to his coheirs of the same degree; if he has no coheirs of the same degree, it goes to those in the next degree. . ..
Art. 1023: The accretion operates of full right independently of the will of the person for whose benefit it is, and whether he be ignorant or not of the renunciation which gave rise to it.
Art. 1024: He in whose favor the right of accretion exists, can not refuse the portion of the heir who has renounced, and keep that part which has fallen to him in his own right, because he is bound to accept or renounce for the whole.

Applying the explicit provisions of these articles to the facts of this case, we find that upon his execution of the act of renunciation on April 18, 1978, Williams’ interest in his mother’s succession devolved upon his only coheir of the same degree, Mrs. Klein-peter. However, in the joint petition for possession Mrs. Kleinpeter purported to accept only that portion of the estate which had fallen to her in her own right, impliedly refusing the portion which her brother had renounced. This clearly is proscribed by Article 1024.

We also note that in the joint petition for possession the Williams children professed to appear “by representation of their father” who, of course, was still living. La. CC. Art. 899 provides: “Persons deceased can only be represented; persons alive cannot.” Consequently, the Williams children were prevented by law from representing their father in his mother’s succession.

Defendants and intervenor argue that heirs may agree to distribute an estate in a manner other than that provided by law, citing in support of this proposition La. C.C. Art. 2291 (which deals with judicial confessions) and numerous cases, including Succession of Rufin, 143 La. 828, 79 So. 421 (1918); Succession of Carter, 149 La. 189, 88 So. 788 (1921); and Alexander v. Hall, 45 So.2d 916 (La.App.2d Cir. 1950).

Discussing Article 2291, the court in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979) stated:

“The jurisprudence interpreting this statute is well settled to the effect that an admission made in a pleading is within the purview of this statute. It is also well settled that a judicial confession is a party’s explicit admission of an adverse factual (emphasis added) element and that it has the effect of waiving evidence as to the subject of the admission, of withdrawing the subject matter of the confession from issue.”

In examining the cases relied upon by the defendants and intervenor, we note a common thread running through them — in the contested pleadings the plaintiffs alleged adverse facts resulting in a different method of distribution under the law than if the facts had been correctly stated. In the case at bar the facts were correctly stated but petitioners were not placed in possession according to the law as applied to those facts. This was not merely an error or misapplication of the law by virtue of which an estate was distributed in a manner other than that provided by law, but an attempt to proceed in a manner expressly prohibited by law, i. e., by Mrs. Kleinpeter to accept only a portion of a succession and by the Williams children to represent a live parent.

To summarize with reference to this issue, upon the renunciation of his mother’s succession the interest of Milton Williams went to his sister, his only coheir, by operation of law. In order to vest the Williams children with the ownership of an undivided one-fourth interest each in the succession, it would have been necessary for Mrs. Klein-peter to accept the entire succession and then donate the specified interests to her niece and nephew. Rather than doing this, she attempted to accept only a part of the succession, which is prohibited by law. In the joint petition she did not allege any facts which constituted a judicial confession under Article 2291. Since Milton Williams did not appear as a party to the joint petition, his renunciation could not be construed as an acceptance of the succession and a donation of his interest to his children. Under the circumstances his children had no legal right to appear as parties to the joint petition since they had not inherited any portion of their grandmother’s estate. Their aunt was the sole heir to the succession and had not donated an interest to them.

For these reasons, we find the judgment of possession dated April 25, 1978 to be null and void and it is set aside.

Defense of Estoppel

Having decided that the judgment of possession must be set aside, we next consider whether Mrs. Kleinpeter is estopped in this proceeding to accept the succession of her mother as sole heir after the renunciation of her only coheir.

Equitable estoppel is defined in American Bank & Trust Co. v. Trinity Universal Ins. Co., 205 So.2d 35 (La.1967) as:

“.. . (t)he 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.”

Thus, the party invoking the doctrine of estoppel must establish the following three elements through proof of facts: (1) a representation by word, action or inaction; (2) justifiable reliance on the representation; and (3) a change in position to one’s detriment because of the reliance. See Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975); Duthu v. Allements Roberson Machine Works, 393 So.2d 184 (La.App. 1st Cir. 1980).

Adverting to the facts established in this case to determine if the parties who pleaded estoppel discharged their burden of proof, we find:

(1) That prior to the filing of the joint petition for possession Mrs. Kleinpeter was fully aware of her brother’s renunciation of their mother’s succession, of the legal effect of that renunciation, and of her right to accept the entire succession. Her attorney husband acknowledged that he examined the papers forwarded to his wife in Baton Rouge and noted that the Williams children appeared as heirs rather than their father. By executing those documents Mrs. Klein-peter in effect represented to her brother that she was in accord with his plan to have his children inherit the interest which would have gone to him in the succession. Furthermore, after reading the act of renunciation on April 25, prior to the filing of the joint petition and signing of the judgment of possession, Mrs. Kleinpeter had ample opportunity to instruct the Shreveport attorney that she desired to exercise her legal rights under the act of renunciation and be placed in possession of the entire succession. She did not do this. Instead, her husband merely voiced complaints about possible title complications. Both later remained silent during the loan closing which involved alienation of succession property. By her silence and inaction, Mrs. Kleinpeter represented to her brother that she continued to concur with his plans.

(2) There is no question but that Milton Williams relied upon the representations of his sister by having the joint petition and accompanying papers filed and the judgment of possession signed.

(3) As it developed, by relying upon his sister’s representations, Milton Williams acted to his detriment. Williams’ position consistently was that he desired his children to inherit in his place. At no time did he express a desire that Mrs. Kleinpeter inherit his portion of his mother’s succession. It is clear that had his sister indicated that she planned to claim the entire succession by virtue of the renunciation, Williams would have exercised his right under La. C.C. Art. 1031 to revoke his renunciation since Mrs. Kleinpeter had not accepted the succession. Instead, because of his sister’s representations, Williams acted to his detriment, i. e., not revoking the renunciation, but proceeding to file the joint petition and securing judgment.

We find, therefore, that Mrs. Kleinpeter is equitably estopped to accept the succession of her deceased mother in these proceedings.

Conclusion

For the reasons set forth, we reverse the judgment of the district court and set aside the judgment of possession dated April 25, 1978, but find that the appellant is estopped to accept the succession of Stella Lea Williams until Milton Williams has a reasonable opportunity to revoke his act of renunciation. Acting pursuant to the authority granted us by La. C.C.P. 2164 we grant Milton Williams a period of 15 days from the date of finality of this judgment to revoke his renunciation of his mother’s succession. The case is remanded to the district court for further proceedings consistent with this opinion and in accordance with law.

Costs of this appeal are assessed one-half to appellant and one-half to appellees.

Before PRICE, HALL, MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

ON REHEARING

PRICE, Judge.

We granted appellees’ application for rehearing to consider whether our opinion reversing the trial court and finding the petition for possession null and void is correct. For the following reasons, we set aside our original opinion and reinstate the judgment of the trial court.

The facts and issues are clearly set forth in our original opinion and for brevity they will not be restated herein. We also continue to adhere to the findings of fact made in the original opinion enumerated as (1), (2), and (3) on pages 339 and 340 thereof.

We originally held that Mrs. Kleinpeter’s participation in the petition for possession was not a judicial confession because this principle applies only to allegations of fact. Since the petition employed procedures expressly prohibited by law, we set aside the judgment of possession, but held that Mrs. Kleinpeter was equitably estopped from participating in her mother’s succession until such time as her brother had an opportunity to revoke his renunciation. Appellees urge on rehearing that the trial court was correct in its determination that Mrs. Klein-peter’s participation in the petition to the court to send her niece and nephew into possession of one-half of decedent’s estate results in a judicial confession which precludes her from now changing her position, and that we erred in setting aside the judgment of possession.

La. C.C. Art. 2291 provides:

The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.

Our original opinion primarily relied on Cheatham v. City of New Orleans, 378 So.2d 369 (La. 1979) for the proposition that a judicial confession applies only to allegations of fact in a judicial proceeding. The Cheatham case was concerned only with a confessed adverse factual allegation in the defendant’s answer. Therefore, that decision cannot be said to be authority for the proposition that a judicial confession applies only to factual admissions and La. C.C. Art. 2291 should not be so restrictively interpreted.

We further held that the petition for possession violated La. C.C. Art. 1024 because Mrs. Kleinpeter accepted only half of the succession due her by permitting her brother’s portion (which she is entitled to as provided for in La. C.C. Art. 1022) to devolve upon his children. Further La. C.C. Art. 899’s prohibition against a child representing a living parent was violated because the Williams children were listed in the petition as co-heirs of decedent.

It is apparent that the manner in which the estate was distributed violated La. C.C. Arts. 1024 and 899. However, we believe that this constituted an error of law (see La. C.C. Art. 1822) under which a judicial confession cannot be revoked. The parties were clearly apprised of all the pertinent facts when the petition was filed. However, they erred in believing that the Williams children could represent their father and in allowing Mrs. Kleinpeter to accept only part of the succession she was entitled to. As the following cases illustrate, heirs in a succession proceeding may not revoke their acquiescence to a petition for possession based upon an error of law.

In Alexander v. Hall, 45 So.2d 916 (La. App.2d Cir. 1950), the daughter and her stepmother filed a joint petition for possession of the daughter’s father’s (stepmother’s husband) estate. Since all of the property belonged to the community of the father and his first wife, the stepmother was not legally entitled to any of it. The daughter later appeared and attempted to claim all of the property. The court held she was judicially estopped from doing so.

In Succession of Williams, 168 La. 1, 121 So. 171 (La. 1929), the parties entered into a petition for possession whereby the second wife received a usufruct over the property of the children not her own. Since La. C.C. Art. 916 grants a parent a usufruct over only the property of her own children, the children complained of this illegal burden. The court said that an error of law would not bar a plea of estoppel under La. C.C. Art. 2291.

Finally, in Succession of Rufin, 143 La. 828, 79 So. 421 (La. 1918), all of the descendant heirs approved a petition for possession. After the judgment of possession was entered, it was discovered that one of the heirs was illegitimate, and therefore not legally entitled to any portion of the succession property. One of the co-heirs attempted to have the judgment set aside. His demands were rejected because of the applicability of La. C.C. Art. 2291. A similar case is Succession of Carter, 149 La. 189, 88 So. 788 (La. 1921). There all of the children, including an illegitimate, were put into possession of their father’s estate. One of the children attempted to have the judgment set aside, but the court denied the demand on finding there was nothing prohibitive of this method of distribution, that it was not contrary to public order, and that all parties who had an interest in the succession were represented. See also Succession of Kranz, 162 La. 546, 110 So. 750 (La. 1926); Doll v. Doll, 206 La. 550, 19 So.2d 249 (La. 1944); and Laiche v. Laiche, 231 So.2d 647 (La.App. 1st Cir. 1970).

In the instant case, Mrs. Kleinpeter, by her participation in the petition for possession, solemnly acknowledged in a judicial proceeding that she was a co-heir with the Williams children in Stella Lea Williams’ succession. She represented that she was entitled to only one-half of the succession property. All parties who had an interest in this succession were represented. There is nothing contrary to public order in the manner in which the estate was distributed. She agreed to this distribution and she cannot now come forth and complain that the petition for possession is null and void as a matter of law.

For the assigned reasons, we set aside our original opinion and reinstate the judgment of the trial court.

FRED W. JONES, Jr., Judge,

dissenting.

The thrust of this majority opinion on rehearing seems to be that Mrs. Kleinpeter is barred from attacking the judgment of possession because of her “judicial confession” of an erroneous legal proposition. It is further asserted that we erred in the original opinion by construing Cheatham v. City of New Orleans, 378 So.2d 369 (La. 1979) to stand for the legal rule that a judicial confession applies only to allegations of fact in a judicial proceeding.

The court in Cheatham unequivocally stated:

“[I]t is also well settled that a judicial confession is a party’s explicit admission of an adverse factual (emphasis added) element and that it has the effect of waiving evidence as to the subject of the admission...”

The majority then proceeds to find that the “parties were clearly apprised of all the pertinent facts (emphasis added) when the petition was filed,” but erroneously applied the law to those facts, “under which a judicial confession cannot be revoked.”

What the majority appears to be saying is that Mrs. Kleinpeter did not confess facts but embraced an erroneous understanding of the law which she cannot now disavow. This reasoning is not consistent with the function of “judicial confession” as enunciated in Article 2291. For example, why should the last sentence of that article provide that the judicial confession “can not be revoked on a pretense of an error in law” if what is being “confessed,” as asserted by the majority, is in itself an erroneous legal conclusion?

To compound the confusion, the majority opinion then proceeds to cite cases dealing primarily with estoppel to support its position on judicial confessions. Even if apposite, those cases essentially involved allegations of facts adverse to plaintiffs which resulted in a different method of distribution of property under the law then if the facts had been correctly stated.

Remaining convinced that the original opinion of this court correctly disposes of the issues presented by this appeal, I respectfully dissent.

      . These were the children of Milton Williams, brother and only coheir of Mrs. Kieinpeter, who had allegedly renounced his mother’s succession.

      . There was some dispute as to whether Williams’ name was inserted in the deed as a vendor before or after his sister executed the instrument. We agree with the trial judge that this was irrelevant.

      . Although Mrs. Kleinpeter did not pray for this relief, La. C.C.P. Art. 862 authorizes its granting as long as the party is entitled to it under the pleadings.

      . This article provides in part: “So long as the prescription of the right of accepting is not acquired against the heirs who have renounced, they have the faculty still to accept the succession, if it has not been accepted by other heirs.... ”

      . “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. ... ”


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    GOOD HOPE REFINERIES, INC. v. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL, LOCAL 4-447 (Consolidated with No. 12135, Oil, Chemical, and Atomic Workers International Union, Local 4-447.
    No. 12134.
    Court of Appeal of Louisiana, Fourth District.
    Sept. 21, 1981.
    Adams & Reese, Michael G. Crow and Philip A. Franco, New Orleans, for plaintiff-appellant.
    Hess & Washofsky, Dennis M. Angelico, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from the judgment of the district court issuing a stay order. The stay order encompasses Good Hope Refineries’ suit against the Oil, Chemical, & Atomic Workers, Local 4-447 for damages and the union’s suit against Good Hope for defamation. The trial court stayed both actions pending the conclusion of hearings before the National Labor Relations Board. Both suits, as well as the N.L.R.B. hearings, deal with actions and omissions that allegedly occurred during or in connection, with a strike. From that judgment, Good Hope appeals.

Article 532 of the Code of Civil Procedure provides as follows:

“When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same cause of action, between the same parties in the same capacities, and having the same object, on motion of the defendant or on its own motion, the court may stay all proceedings in the second suit until the first has been discontinued or final judgment has been rendered.” (emphasis added)

On appeal, the standard of review to be applied is whether the trial judge clearly abused his discretion in staying the proceedings. We cannot conclude that a clear abuse of discretion has occurred.

Good Hope contends that the N.L. R.B. has jurisdiction only over labor disputes between the union and Good Hope and does not have jurisdiction over damages and acts of violence. These are jurisdictions which are reserved to the trial court. According to Good Hope, the trial judge erred when he concluded: “Firstly, this court does have jurisdiction to hear damage action ... . ” On the other hand the trial court concluded that the actions before it “has been pre-empted by the N.L.R.B.. . .

Good Hope’s brief points out that where litigation involves conduct marked by violence, imminent threats of violence or destruction of property, those tort actions are not preempted by N.L.R.B. We do not agree. We are in accord with the Union’s contention that the complaints and issues before the N.L.R.B. are similar to those before the trial judge. The trial judge properly stayed proceedings pending the outcome before the N.L.R.B.

We find that Judge Bradley acted reasonably in staying these proceedings pending action by the National Labor Relations Board and that no abuse of discretion has occurred.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


text:
    OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, LOCAL 4-447 v. GOOD HOPE REFINERIES, INC. (Consolidated with No. 12134, Good Hope Refineries, Inc. v. Oil, Chemical and Atomic Workers International, Local 4-447).
    No. 12135.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1981.
    Hess & Washofsky, Dennis M. Angelico, New Orleans, for plaintiff-appellee.
    Adams & Reese, Michael G. Crow and Philip A. Franco, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 12134, Good Hope Refineries, Inc. v. Oil, Chemical and Atomic Workers International, Local 4-447, 405 So.2d 343, the judgment is affirmed.

AFFIRMED.


author: CHEHARDY, Judge. SAMUEL, Judge,

text:
    BRIDGEMAN & CONWAY, et al. v. The KORNER REALTY CO., INC., et al.
    No. 11665.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 23, 1981.

      Lemle, Kelleher, Kohlmeyer & Matthews, James R. Conway, III, New Orleans, for plaintiffs-appellees.
    Babovich, McDowell & Bukaty, Thomas E. McDowell, New Orleans, for Gloria Kor-ner, defendant-appellant.
    Moliere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for Floral Enterprises, Inc., garnishee, defendant-in-rule.
    Before SAMUEL, REDMANN, GULOT-TA, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant Gloria Korner appeals an April 21, 1980 judgment dismissing her Motion to Discontinue Garnishment in favor of the plaintiffs, Bridgeman & Conway, a partnership, and Ben Daly Bridgeman and James R. Conway, III, individually.

The decision also recited that the judgment of that court rendered on October 17, 1979 ordering the garnishee, Floral Enterprises, Inc., to pay the gamishable portion of the earnings of Gloria Korner would be maintained and should remain in full force and effect. It was also decreed that there would be reserved unto Gloria Korner the right to seek reimbursement for one-half of all amounts garnished from her salary after January 1, 1980 out of the community assets and/or to seek reimbursement from Fred D. Korner, personally.

The record of the case indicates The Kor-ner Realty Co., Inc., employed the law firm of Bridgeman & Conway for legal services in connection with its real estate business. Subsequently, Fred D. Korner, as president of the company, and individually, signed a note in an effort to settle a claim for attorney’s fees. On January 18, 1978, plaintiffs obtained a judgment against The Korner Realty Co., Inc., and Fred D. Korner for the sum of $1,501.99, plus 8% interest thereon from October 24,1977 through November 7, 1977, plus legal interest thereon from November 8, 1977 until paid, and for 25% attorney’s fees on the aggregate amount of principal and interest, and for all costs, subject to a credit of $600 already paid by Mr. Korner.

On August 20, 1979, that judgment was made executory and on October 17, 1979, it was ordered that Floral Enterprises, Inc., garnishee, pay to plaintiffs, through their attorney, 25% of the disposable earnings of Gloria Korner, said deductions to continue as long as Gloria Korner was employed by the garnishee or until the judgment was paid in full plus all interest, attorney’s fees and court costs.

It is uncontroverted that on November 14, 1979, Fred and Gloria Korner availed themselves of Louisiana Act 709 of 1979 and agreed that after January 1, 1980 they would be separate in property.

The sole question presented to this court is whether the earnings of Gloria Korner after January 1, 1980, were rendered exempt from seizure by the plaintiffs due to the separation of property executed between her and her husband, which became effective on that date, and due to the provisions of Acts 1979, No. 707, which also became effective January 1, 1980.

LSA-C.C. art. 2357 states:

“An obligation incurred by a spouse before or during the community property regime, may be satisfied after termination of the regime from the property of the former community and from the separate property of the spouse who incurred the obligation.
“If a spouse disposes of property of the former community for a purpose other than the satisfaction of community obligations, he is liable for all obligations incurred by the other spouse up to the value of that community property.
“A spouse may by written act assume responsibility for one-half of each community obligation incurred by the other spouse. In such case, the assuming spouse may dispose of community property without incurring further responsibility for the obligations incurred by the other spouse.” (Emphasis ours.)

A reasonable interpretation of this statute can only lead to the conclusion that its purpose was to exempt from seizure all separate property of the nonincurring spouse in satisfaction of obligations incurred by the other spouse during the existence of the community regime.

Regarding the retroactive application of statutes, the court said in Bostick v. Intern. Minerals & Chemical Corp., 360 So.2d 898, 900 (La.App. 2d Cir. 1978):

“Our general rule of statutory construction is that a law can prescribe only for the future; it can have no retrospective operation. C.C. Art. 8. This general rule excepts those instances where the statute specifically provides for retroactive application or where the statute does not affect a substantive right, but is only procedural or remedial. Young v. Staman, 200 So. 187 (La.App., 2d Cir. 1940); American Finance Corporation of Coushatta, Inc. v. Small, 250 So.2d 768 (La.App., 2d Cir. 1971).”

The plaintiffs contend that to discontinue the garnishments on the defendant’s salary after January 1, 1980 would, in effect, be giving a retroactive application of LSA-C.C. art. 2357. Although the judgment of garnishment was rendered against Gloria Korner before she and her husband became separate in property, both their separation of property and the provisions of LSA-C.C. art. 2357 came into effect on January 1, 1980. It would seem, at first glance, therefore, that any salary earned by the defendant after that date was her separate property and therefore not subject to seizure by creditors for community debts incurred by her husband during the community property regime.

However, the court said in the case of Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684, 687 (1970):

“The garnishee strongly contends here, as it did in the Court of Appeal, that the seizure affects no future wages, relying upon the decision of this Court in Humphrey v. Midkiff, 122 La. 939, 48 So. 331. The decision relied upon is no longer controlling. The Wage Garnishment Law (LSA-R.S. 13:3921 et seq.), enacted after the decision, brought future earnings within the grasp of the wage seizure.”

The court also said in the case of American Finance Corp. of Coushatta, Inc. v. Small, 250 So.2d 768, 774 (La.App. 2d Cir. 1971), in considering a statute which enlarged garnishment exemptions:

“In the case now before this court, the debt was created, reduced to judgment, and executed through garnishment proceedings prior to the enactment of the amending statute of 1970. If the 1970 statute were to be applied retroactively in this instance, the creditor’s rights under the pre-existing contract and judgments would be substantially and materially impaired. * * *”

The Supreme Court, however, considered the constitutionality of the retroactive application of the identical exemption law discussed in American Finance, supra, in Hooter v. Wilson, 273 So.2d 516 (La.1973), and, in effect, overruled the holding of American Finance, supra, at page 522:

“If we were to examine the legislation and the contract affected by it in light of whether the legislation impairs the contract or merely impairs a remedy, we would, of course, say that the right of garnishment is no more than a remedy. We would also be forced to say, as did Justice Holmes in Pittsburg Steel Co. v. Baltimore Equitable Society, 226 U.S. 455, 33 S.Ct. 167, 57 L.Ed. 297 (1913), that the plaintiff’s contract subject to the right of garnishment was at the time of the contract subject to particular infirmities: The creditor could not require the debtor to work, and if the debtor did not work, there were no wages subject to garnishment. There was no vested contractual obligation that this particular debtor would have wages available for the remedy of garnishment if he failed to pay the debt. When the state changed the remedy by increasing the exemption, it did not abrogate the remedy; it did not make the remedy any less certain than it was at the time of the contract; it simply in the interest of public welfare increased the debtor’s exemption so that he and his family might be saved from being a charge upon the state.
“Not only does the creditor’s remedy of garnishment remain, but there is reserved to the creditor other adequate remedies for the enforcement of his contract. Those other remedies, chattel mortgage and vendor’s privilege, were controllable by the parties, could have been made express, and were not subject to unilateral determination by the debtor of his creditor’s rights as was the garnishment remedy.
“We declare Act 242 of 1970 amending R.S. 13:3881 to be remedial and retroactive legislation without constitutional infirmity under the United States Constitution’s Contract Clause.
“The Court of Appeal based its determination that the act could not be applied retroactively upon a theory that the creditor’s judgment of garnishment for both earned and unearned wages against the employer of the debtor was a vested right of the creditor, and that a legislative attempt to retroactively divest this right would be unconstitutional.
“Even if we were to assume arguendo that the judgment of the creditor against the garnishee is a vested right, the general constitutional principles enunciated in relation to the states’ authority to impair contracts would apply. Any right the creditor has acquired is subject to a proper exercise of the police power for legitimate purposes when the exercise of the power is not unreasonable. However, it is readily apparent that although a judgment against a garnishee is a final judgment for purposes of determining procedural rights, it cannot be said that such a judgment vests in the creditor-garnishor any right other than to receive any nonexempt portion of earned wages held by the garnishee at the time of judgment. Both the employer and the employee may exercise the right to termination of employment, which of course terminates any right or remedy the creditor-garnishor has against the employer-garnishee. Therefore, although the judgment of garnishment is a final judgment, we must conclude it does not as to unearned wages vest a right in the creditor. It may be said that the judgment right is ‘aleatory’. If these parties may extinguish the right and the remedy, certainly the state in the exercise of its police power for the protection of the public may extinguish the right or the remedy.
“We therefore also conclude that Act 242 of 1970 amending R.S. 13:3881 does not divest vested rights and that a retroactive application of it to a judgment of garnishment is not unconstitutional.”

Although, in the present case, LSA-C.C. art. 2357 does not create an express “exemption” from garnishment, as dealt with in American Finance, supra, and Hooter, supra, but rather serves to classify Gloria Korner’s separate property earnings after January 1, 1980 as immune from community property debts incurred by her husband during their community property regime, we find the rationale expressed in Hooter, supra, as applicable and controlling regarding interpretation of the subject and that the enactment of this provision was a reasonable exercise of the police power of the State for legitimate purposes. We also find the provisions of this legislative enactment to be remedial rather than substantive in nature and thereby subject to retroactive application. We find, furthermore, such an application of the statute in the present case does not effect an unconstitutional impairment of the plaintiffs’ vested contractual rights which may be satisfied from the property'of the former community or the separate property of Mr. Korner.

This court is also aware of LSA-C.C. art. 2328, which states:

“A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.”

Furthermore, Comment (b) under the above article recites:

“A matrimonial agreement is governed by the general rules of conventional obligations unless otherwise provided in this Title. The provisions of a matrimonial agreement may not prejudice third persons.”

We must, however, reiterate the holding of Hooter, supra, which specifically decreed that a judgment against a garnishee does not vest in the creditor-garnisher a right as to unearned wages of the debtor. We cannot hold, therefore, that the provisions of a matrimonial agreement, such as the one executed by the Korners, prejudices any vested rights of a third party creditor-gar-nisher once the status of the debtor-spouse’s salary changes due to the matrimonial agreement and becomes exempt from seizure due to the nature of the debt. LSA-C.C. art. 2357.

The decision of the district court, therefore, is hereby reversed and it is ordered that Gloria Komer’s Motion to Discontinue Garnishment is granted in that there is judgment for her against plaintiffs for the $225 garnished from her salary, with interest upon each garnishment from its date until paid. Plaintiffs are to pay all costs of the proceedings.

REVERSED AND RENDERED.

SAMUEL, J., dissents with written reasons.

SAMUEL, Judge,

dissenting.

Imprimis, it should be noted mover alleges that by notarial act dated November 14, 1979, recorded in the Parish of Orleans (the parish of their domicile) she and her husband “agreed that after January 1, 1980 they would be separate in property”. She further alleges a true copy of that act is attached to and made a part of her motion. However, no such act or copy is contained in the record, which is totally devoid of any evidence establishing or tending to establish the community has in fact been either modified or terminated. Although, as correctly stated by the majority, the fact that an act exists has not been controverted by the appellees, neither have they admitted it exists, nor have they made any admissions regarding its contents.

Under these circumstances it appears to me this court cannot assume either that the community has been modified or terminated, nor to what extent, if in fact such an event has occurred. Accordingly, we should either affirm the judgment appealed from or remand for the purpose of completing the record in this regard.

But even assuming a complete termination of the community without any other consideration, in my view the trial court judgment maintaining the garnishment is correct and should be affirmed. My reasons for reaching this conclusion are twofold.

First, there is no question about the fact that the original plaintiff was a creditor which had a right to garnish mover’s salary. Comment (b) under C.C. Art. 2328 states: “The provisions of a matrimonial agreement may not prejudice third persons”. That comment refers to C.C. Arts. 1502 and 1969. In pertinent part C.C. Art. 1969 reads: “... every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, ...” Article 1969 is applicable here. Mover (the wife-debtor) cannot enter into a contract with her husband and co-debtor obviously intended to, and under this majority reversal will, deprive the creditor of the right it has upon the mover’s salary. Certainly, the present action by the majority “prejudices” the third party creditor in that it deprives the creditor of a right it has on mover’s property, her salary, during the time she receives a salary and until the debt is paid or otherwise validly extinguished.

Second, the majority holding that mover’s earnings were rendered exempt from seizure solely as a result of a unilateral act by herself and her husband would result in making unconstitutional that portion of C.C. Art. 2357 upon which the majority relies. Such a result would follow because of a violation of a constitutionally protected vested right.

The basis for the long established rule that state statutes cannot operate retroactively where vested rights are impaired is that such construction would render those statutes unconstitutional because they would violate Article 1, § 10 of the United States Constitution and Article 1, § 23 of the Louisiana Constitution of 1974 (formerly Article 4, § 15 of the Louisiana Constitution of 1921). Those constitutional provisions prohibit the enactment of laws impairing the obligations of contracts.

In Tennant v. Russell, the Supreme Court of Louisiana held: “A right is vested when ‘the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete, and unconditional, independent of a contingency, and a mere expectancy of future benefit, or a contingent interest in property * * * does not constitute a vested right.’ ”

The present case contains all the requirements of a vested right. The creditor’s right to garnish the salary of the mover to satisfy the debt had become its property as a present interest and that right was absolute, complete and unconditional. It was not an expectancy of any future benefit or any contingent interest; and it was independent of a contingency. Here, the creditor’s right is not just possible or liable to happen. The right is certain for as long as mover and her husband are not divorced or judicially separated (and mover and her husband are neither divorced nor judicially separated). It is a right which is applicable to unearned wages. In fact, by its very nature, garnishment is applicable to future wages. And the means of enforcing a contract is one of the contract obligations protected by the above mentioned constitutional provisions.

Finally, I believe the majority’s reliance on Hooter v. Wilson, La., 273 So.2d 516, apparently because of its holding that a garnishment judgment, although final, “does not as to unearned wages vest a right in the creditor”, is misplaced. Hooter holds only that Act 242 of 1970, which increased the garnishment exemption, even though applied retroactively, was constitutionally valid and did not infringe on any vested rights of the plaintiff-garnisher who had obtained his garnishment some two years prior to the enactment and effective date of that act.

The Hooter decree simply changed the original garnishment judgment so as to increase the exemption to that established by Act 242 of 1970; it did not extinguish the debt which formed the basis of the garnishment judgment, nor did it prevent collection thereof. As shown in that portion of the opinion quoted by the majority, Hooter carefully points out that “the creditor’s remedy of garnishment remains”. In this case, as to the wife-mover, the majority either extinguishes the debt itself or, what amounts to the same thing, effectively prevents collection of that debt; the decree not only prevents garnishment, it also prevents any execution of the creditor’s judgment. The Hooter court was concerned only with the retroactive application of the legislation which increased the garnishment exemption. It held such application valid as a reasonable and proper legislative “exercise of the police power for the protection of public health, safety, morality, and general welfare,” which I do not find to be present in this case. As stated above, the case holds only that such application is valid and does not violate a vested right. Hooter must be read in that context and with that limitation.

The creditor here does have a vested right in the debt, and its collection, owed him by both the husband and the wife as a debt of the community. The majority’s action not only violates the legislative intent expressed in Comment (b) under C.C. Art. 2328, it also violates our settled law relative to vested rights.

For these reasons, I respectfully dissent.

      . Discontinuance of the garnishment had been previously ordered by the United States Bankruptcy Court and we then ordered a stay of this proceeding. The Bankruptcy Court has now disclaimed the $225 previously garnished and we therefore resolve this dispute as to that $225.

      . 214 La. 1046, 39 So.2d 726, 728, also see Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845; Stokes v. Aetna Casualty and Surety Company, La.App., 232 So.2d 328; Wells v. Joseph, La.App., 95 So.2d 843.

      . In pertinent part, Black’s Law Dictionary 4th Ed., Webster’s Third International Dictionary, The American Heritage Dictionary of the English Language, New World Dictionary of the American Language, Second College Edition, and Webster’s New Collegiate Dictionary define the words contingent and contingency as follows: “Possible, but not assured; doubtful or uncertain, conditioned upon the occurrence of some future event which is itself uncertain, or questionable.... synonymous with provisional. That may or may not happen; possible; fortuitous; unpredictable because dependent upon chance; . . . Liable, but not certain, to occur; . . . Coming from or subject to unforeseen conditions; chance; as a contingent result of a war.” and “quality of being contingent or casual; the possibility of coming to pass; an event which may occur; a possibility; a casualty. A fortuitous event which comes without design, foresight, or expectation. A possible or not unlikely event or condition.... the quality or state of being contingent: as a (1): the condition that something may or may not occur; the condition of being subject to chance .. . something whose occurrence depends on chance or uncertain conditions; . . . ”.

      . La., 273 So.2d 516. 522.


author: SCHOTT, Judge.

text:
    Jerry MADISON v. ORLEANS DATSUN, INC., also known as Orleans Motors, Inc.
    No. 12359.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1981.

      William H. Forman, Jr., New Orleans, for plaintiff-appellee.
    Reginald T. Badeaux, Jr. and Michael Cumberland Badeaux, Discon, Cumberland & Barbier, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Defendant, an automobile dealer, in taking an inventory in December, 1976, of its stock of used automobiles found a 1969 Ford to be missing and reported this to the New Orleans Police Department. On April 2,1977, plaintiff was driving the automobile and was stopped by the police. When he was unable to produce ownership papers he was arrested and charged with possessing stolen property and was held in jail for 12 hours before being released. Plaintiff claimed he bought the car from defendant in July, 1976, when he gave defendant’s employee, John Stevens, $500 in cash toward the purchase price of $1100. The trial judge found that Stevens was an employee of defendant and had sold the automobile on defendant’s behalf. He thus awarded plaintiff $2000 in damages for being arrested and held in jail. The real issue is whether the facts of this case support any legal theory of liability on the part of defendant.

Plaintiff, accompanied by his friend, James Johnson, went to defendant’s used car lot in July, 1976, where he met John Stevens and agreed to purchase a 1969 Ford for $1100. He gave Stevens $500 in cash and was told that Stevens would “write me up.” Instead, Stevens pretended to make a phone call, gave plaintiff a business card on which he wrote $500.00 and told him to take the car. Plaintiff got no receipt or title papers. He returned to the lot several times during the following month to get papers but was told each time to come back.

Defendant’s president, Alfred Estopinal, testified that John Stevens had worked for him as a used car salesman in 1975 but not in 1976. He produced copies of federal and state tax forms filed by the company in 1976 on which all employees were listed and Stevens’ name was not included. Estopinal testified further that the company was in the process of going out of business in 1976 and the used car lot which was some distance from the main office was closed for the most part and secured by chains and locks. The manager, Paul Ward, was “in and out” because he was looking for another job. Only when there was the prospect of a sale of a used car would someone go there and show the cars. His testimony that Stevens did not work for the company in 1976 was corroborated by that of Reginald Badeaux, an attorney and part owner of defendant, who recalled that Stevens was fired around Thanksgiving of 1975.

Nonetheless, the trial judge made a specific finding that Stevens was employed by defendant in July, 1976, on the basis of: 1) a transcript of testimony in a criminal prosecution against John Stevens in August, 1977, (about three years before the present trial) in which Estopinal testified that Stevens had been defendant’s used car manager in November, 1976; and 2) defendant’s answer to interrogatories signed by Ba-deaux as defendant’s attorney in which he stated that Stevens was employed between October 10 and November 19, 1976. The trial judge concluded “that it is unquestionably the weight of the evidence that Mr. Stevens was employed at the used car lot.”

In our judgment this finding was clearly wrong. Plaintiff and his friend may have thought Stevens was an employee but they could not know this. On the other hand both Estopinal and Badeaux were certain he did not work there after 1975 and explained the erroneous statements they made previously. In any event, neither of these statements lends any support to the conclusion that Stevens was employed in July, 1976, the pertinent time.

The trial judge reasoned that Stevens was an employee and sold the automobile for defendant to plaintiff. Thus, the automobile was owned by plaintiff when defendant reported it to the police as missing and ultimately caused plaintiff to be put in jail. In awarding damages to plaintiff the judge stated that the basis for the award was plaintiff’s twelve hour confinement but he explained:

“. .. . and I also, parenthetically, take into consideration that he did not seek for the return of his $500 of his deposit. I would have conceivably awarded him that deposit back or the value of the car that he lost, which was not before me. And that’s a matter that plaintiff knows best why he didn’t present that issue to me.”

Finally, the trial judge made a specific finding that there was no collusion between plaintiff and Stevens. In doing so he discussed and disposed of a police report made in connection with plaintiff’s arrest and put into evidence by plaintiff through the testimony of the custodian of the record. In it the arresting officer states that he took the following statement from plaintiff:

“The subject stated he gave $500 to a subject named Steve who worked at Orleans Motors, and Steve told him he would make the sale on the side and would not have to finance the vehicle.”

The trial judge remarked that he did not consider this as a truthful statement because the policeman who took it did not testify at the trial.

Since plaintiff offered the statement in evidence he vouched for the officer’s credibility so that the trial judge erred in his rejection of it. Nonetheless, this single factor is not sufficient to justify our reversal of the finding that there was no scheme between plaintiff and Stevens. The trial judge specifically found that plaintiff was naive and unsophisticated and was the victim of his own shortcomings. The record as a whole does not demonstrate this to be manifestly erroneous.

Since we have concluded that Stevens was not an employee or agent of defendant when the supposed sale took place it follows that plaintiff — and defendant — were both victims of Stevens’ fraud. He was nothing more than a stranger and trespasser on defendant’s property who pretended to sell defendant’s car to plaintiff. As plaintiff himself testified.

“In other words he (Stevens) took the money in his pocket and he stole the money. He must have done about nine people that day.”

We do not decide whether concepts of apparent agency might have allowed plaintiff to specific performance of the purported sale, because plaintiff has not timely appealed nor answered the appeal and this judgment, therefore, cannot be altered in his favor. Evidently plaintiff is satisfied to seek recovery in tort rather than contract.

The record does support the conclusion that defendant breached a duty to plaintiff as a member of the general public because of the manner in which it was operating its used car lot. According to plaintiff there were a number of people looking at cars on the lot the day he “purchased” a car. From the description given by plaintiff and his companion Stevens had the free run of the place even to the extent of drinking coffee in the office. Each time plaintiff went back' to get his papers there was Stevens. By Estopinal’s own admission he had practically abandoned the lot. We can only speculate how Stevens gained access to the lot, office and cars but he had been a salesman just seven months previously and could have retained the keys. In any event, we conclude that defendant was negligent in allowing this situation to take place and plaintiff is entitled to recover damages resulting from that negligence. Beyond question, he is entitled to the $500 he paid to Stevens, but the question is whether he is entitled to any damages for being jailed.

It was not defendant’s act or omission in connection with its loose management of the used car lot which led to defendant’s arrest. He was not arrested because he had no title papers on the car. According to the police report, after plaintiff was unable to produce papers the officer “checked the license number through N.C.I.C. where the vehicle showed stolen on 12/1/76 from the 4000 block of Canal Street [the address of defendant’s main office]” Thus, it was defendant’s report to the police in December that its car was missing which caused plaintiff’s arrest. There is no evidence to suggest that plaintiff would have been arrested had it not been for the report.

Estopinal testified that when the inventory disclosed two missing automobiles, including the one involved here, he reported them as stolen and was later reimbursed by the insurance company for the loss of the other car. He also said that he never missed any cars until this final inventory was taken. He was surely justified in making the report for insurance and tax reasons. Such an act was reasonable and was not a breach of duty under the circumstances. Arellano v. Henley, 357 So.2d 846 (La.App. 4th Cir. 1978), Sapp v. J. A. West Co., 352 So.2d 268 (La.App. 2nd Cir. 1977) writ refused 353 So.2d 1337. We distinguish this case from Firstley v. Bill Watson Ford, Inc., 268 So.2d 314 (La.App. 4th Cir. 1972) where a report was made of a missing car, the car was recovered by the dealer but no report of this was made to the police, the car was subsequently loaned to plaintiff as a demonstrator, and he was apprehended for possessing a stolen car on the basis of the original, unrecalled report; and from Jones v. Simonson, 292 So.2d 251 (La.App. 4th Cir. 1974) where the report itself was unreasonable that plaintiff stole a rug considering the information available to defendant when he made the report. We conclude that defendant’s actions in making the report were reasonable and constituted no breach of duty to plaintiff and, since this led to plaintiff’s arrest, he is not entitled to damages for being jailed. We have considered whether defendant’s initial negligence was the cause of its making the report but concluded that the cause of the report was actually Stevens’ fraud which victimized defendant as well as plaintiff.

Accordingly, the judgment appealed from is affirmed but amended to reduce the $2000 damages to $500 with legal interest from date of judicial demand until paid and all costs of these proceedings.

AMENDED AND AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    Al THERIAC d/b/a Atco Chemical Co., Plaintiff-Appellee, v. Allen McKEEVER, Defendant-Appellant.
    No. 14656.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 1981.

      Cook, Yancey, King & Galloway by F. Drake Lee, Shreveport, for plaintiff-appel-lee.
    Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for defendant-appellant.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This action was brought seeking an adjudication that plaintiff was the owner of a truck and demanding damages from defendant for depriving plaintiff of possession of the truck. Defendant reconvened seeking damages for wrongful seizure of the truck, attorney’s fees, and the purchase price of the truck if plaintiff was recognized as owner.

The trial court recognized plaintiff as owner of the truck and rejected the demands of plaintiff and defendant for damages. Costs were assessed to both parties. Defendant appealed and plaintiff answered the appeal. We amend and affirm.

The issues on appeal are: (1) the ownership of the truck, (2) the right to damages of either party, (3) defendant’s claim for attorney’s fees, and (4) the assessment of costs.

There are three principal participants in the circumstances surrounding this controversy. Plaintiff is A1 Theriac who operated a chemical business. The defendant is Allen McKeever. James Pharr is an equipment dealer who sold the truck to Theriac.

In early August of 1979, Theriac was told by one of his employees that Pharr had a truck on his lot that looked suitable for the needs of the chemical business. Theriac then visited the lot of Pharr, a licensed dealer of heavy equipment and trucks. Theriac examined at least two trucks including a 1963 Kenworth Diesel Tractor on Pharr’s lot.

Theriac decided the Kenworth would meet his needs and agreed on a price of $8,250. The price was to be paid after Theriac' had obtained financing. Pharr agreed to allow Theriac to use the truck in the meantime.

When the truck was removed from Pharr’s lot its absence aroused the interest of the defendant, McKeever. When McKeever learned that a sale of the truck to Theriac was planned he visited Theriac at his place of business. McKeever testified that on his visit he told Theriac that the Kenworth was his and that Pharr had no authority to sell it. Theriac testified that McKeever applied for a job driving the truck.

Pharr’s testimony indicated that Theriac may have been told that McKeever had also been interested in buying the truck. However, only McKeever’s testimony indicates any knowledge prior to the sale on the part of Theriac of McKeever’s claim of ownership of the truck.

On August 24, 1979 Theriac and Pharr visited the offices of the People’s Bank & Trust Company to close the deal. Pharr produced a certificate of title in McKeever’s name. In the blank for the signature of the seller was the signature of Allen McKeever. Pharr also had a bill of sale signed by McKeever. At trial McKeever did not deny that the signatures on these documents were his. The notary on both documents was James Pharr.

A certified check for the purchase price was issued to Pharr and Theriac signed a note for the loan. The bill of sale and certificate of title were completed to show Ateo Chemical Company by A1 Theriac as the purchaser of the vehicle. The bank then began taking the steps necessary to have a new certificate of title issued in Theriac’s name.

A few days after the sale the truck was returned to Pharr’s lot for minor repairs. The truck was taken from the lot by defendant McKeever without the consent of Theriac or Pharr. McKeever retained the truck until Theriac brought this action and had the truck seized under a writ sequestration.

Thus, we are presented here with a good faith plaintiff who bought the truck from a licensed dealer who had possession of the truck, an open certificate of title endorsed by the defendant, and a bill of sale signed by the defendant.

The Certificate of Title Law has a provision applicable to this type of transaction. LSA-R.S. 32:705 provides in part:

“On and after December 15, 1950, no person shall sell a vehicle without delivery to the purchaser thereof, whether such purchaser be a dealer or otherwise, a certificate of title issued under this chapter in the name of the seller with such signed endorsement of sale and assignment thereon as may be necessary to show title in the purchaser; provided:
(1) A dealer who is reselling a vehicle which he purchased for stock purposes from an owner who, at the time of purchase, delivered to the dealer an existing certificate of title issued under this chapter in the name of such owner, properly endorsed, may, in lieu of applying for and obtaining a new certificate of title in his own (the dealer’s ) name, and delivering same to purchaser, instead execute a resale and reassignment of such existing certificate of title, with warranty of title.”

We note that the present transfer from Pharr to Theriac does not squarely meet the requirements of this statute. The statute requires that the dealer be named as the party taking the vehicle from the registered owner and that the dealer then re-assign the title to the party buying the vehicle from him. Here the dealer is not named as receiving the vehicle from the registered owner. That space was left blank when McKeever signed, and plaintiff’s name was filled in as buyer later on. The effect of the procedure used in this case is that the dealer’s name never appears and the transfer appears to be from one non-dealer directly to another.

The existing jurisprudence makes it clear that mere failure to comply with the title law does not void the sale of a motor vehicle. It only prevents the title from being marketable. Transportation Equipment Co., Inc. v. Dabdoub, 69 So.2d 640 (La.App.Orl.1954); Hamner v. Domingue, 82 So.2d 105 (La.App. 1st Cir. 1955). It is important that the purpose of the law be considered. This circuit considered that in Ballard v. McBryde, 275 So.2d 464 (La.App.2d Cir. 1973), where it said:

“We are of the opinion the Vehicle Certificate of Title Law is designed to afford the public a means of proper determination of ownership and encumbrance of vehicles subject thereto and to protect innocent purchasers who have relied thereon.” Id. at 467.

In light of the purpose of the statute we believe that the failure of the transfer from Pharr to Theriac to strictly comply with the statute is unimportant. Our inquiry must focus on the situation existing before the transfer. The reliance here was on the appearance of a transfer from McKeever to Pharr and that is where the question of the ownership of the truck turns.

It is a principle of law that when one of two innocent persons must suffer loss it must be borne by the one whose conduct rendered the injury possible. Flatte v. Nichols, 96 So.2d 477 (La.1957). The conduct of McKeever allowed this situation to arise, therefore he, rather than Theriac, must bear the resulting loss.

The record is unclear as to how Pharr came to have the endorsed certificate of title and signed bill of sale. The testimony of Pharr makes it appear that title was placed in McKeever’s name in an effort to aid him in obtaining financing to buy the truck. Perhaps the title was endorsed to enable Pharr to dispose of the truck if he found another buyer. McKeever’s testimony is that Pharr was able to have the title mailed to him, and that he then tricked McKeever into endorsing it and signing the bill of sale. Either way it was the conduct, whether intentional or negligent, of McKeever that allowed Pharr to get an endorsed certificate of title, a signed bill of sale, and possession of the truck.

An endorsement transferring a certificate of title has the effect of transferring legal evidence of title. Bray’s Cities Service v. Harvey, 113 So.2d 479 (La.App.2d Cir. 1959). McKeever, by endorsing the certificate of title and leaving it in Pharr’s possession, armed Pharr with legal evidence of title. In addition to the endorsed certificate of title Pharr also had a signed bill of sale and possession of the truck. Pharr obtained all these indicia of ownership through McKeever’s conduct.

Possession of the truck, a signed bill of sale, and the endorsed certificate gave Pharr all he needed to execute a transfer valid under LSA-R.S. 32:705 by simply filling in a few blanks. This is the situation that Theriac found and the one against which his claim must be judged.

Equitable estoppel arises where a person by his acts, intentionally or through culpable negligence, induces another to believe that certain facts exist and the other rightfully relies and acts on the belief and will be prejudiced if the former is permitted to deny the existence of such facts. Travelers Ins. Co. v. United States Fidelity & G. Co., 168 So.2d 439 (La.App. 3d Cir. 1964); Baton Rouge Lumber Company v. Gurney, 173 So.2d 251 (La.App. 1st Cir. 1965). McKeever intentionally, under Pharr’s testimony, or through failure to adequately supervise his affairs, under his own testimony allowed Pharr to get possession of the truck, a signed bill of sale, and an endorsed certificate of title. In short, McKeever, intentionally or through neglect, gave Pharr everything he would need to represent himself as entitled to sell the truck. This caused Theriac to believe that Pharr could sell the truck and Theriac acted on this belief. It is obvious that Theriac will be prejudiced if McKeever is now permitted to recover the truck which Theriac has purchased on the strength of facts which McKeever made to appear to be true.

Though Theriac himself may not have been deceived by the appearance created by the documents because he did not fully read and understand them, persons who would have protected his interests, the bank officials and the bank’s attorney who were present when the deal was closed, must have relied on them and been deceived by them. If Pharr had not had the documents obtained from McKeever necessary to appear to be able to sell the truck, the bank would have refused to go through with the loan and Theriac would have been protected.

We find that the doctrine of estoppel is applicable and that McKeever cannot now deny that Pharr could sell the truck. Therefore, we hold that the sale by Pharr to Theriae transferred ownership of the 1963 Kenworth to him and recognize that ownership.

This result is supported by the case of Tarver v. Tarver, 242 So.2d 374 (La.App.2d Cir. 1970). In Tarver the vehicle was a Chevrolet registered in the name of Mr. Tarver but transferred to his wife as part of the settlement of their community. Mrs. Tarver never had a certificate of title issued in her name. When Mrs. Tarver failed to make a payment on the car the finance company threatened proceedings against Mr. Tarver. When Mrs. Tarver did not cooperate in helping him clear up the matter Mr. Tarver persuaded a deputy to recover the vehicle for him. Mr. Tarver then sold the car to a good faith purchaser. The purchaser who had relied on the records was allowed to retain the car over Mrs. Tarver’s demands.

Our decision is also supported by Gomez v. Security Insurance Company of Hartford, 314 So.2d 747 (La.App. 4th Cir. 1975). In Gomez the plaintiff was attempting to sell his insured car. He was approached by Rigger who expressed an interest in the car. Plaintiff allowed Rigger to take the car to be examined by a mechanic. Unknown to plaintiff Rigger also took the certificate of title which plaintiff had previously endorsed in blank. Rigger took the car, endorsed certificate of title to a used car lot, and sold the car to the dealer for $600. Rigger was never found but the dealer did sell the car back to plaintiff for the $600 he had paid for it. Plaintiff filed a claim with his insurer for the $600 which was rejected. Plaintiff then sued his insurer for the $600 and the insurer made a third party demand against the dealer.

For reasons not relevant here judgment was awarded in favor of plaintiff against the insurer. On the third party demand the insurer was said to stand in the shoes of its insured, the plaintiff. The court noted that by allowing Rigger to take the car and the title which had been endorsed in blank, plaintiff had given Rigger considerable in-dicia of ownership. The court concluded the used car dealer was reasonable in believing Rigger rightfully had the car, supposedly in payment for a debt. The court found that plaintiff’s conduct was more responsible for the loss than that of the equally innocent car dealer and therefore rejected the insurer’s demand against the dealer. This impliedly recognizes the ownership of the car by the dealer based on his reliance and belief on Rigger’s possession of the car and endorsed certificate.

We believe it was even more reasonable for Theriae to believe that the truck belonged to Pharr, a licensed dealer possessing the truck, and endorsed certificate of title, and a signed bill of sale, than it was for the dealer to believe Rigger in Gomez.

We agree with the trial judge that Theri-ac should be recognized as owner of the truck.

Defendant alternatively demands the sales price of the truck if we recognize plaintiff as owner. We have recognized plaintiff’s ownership, but we reject defendant’s demand for the purchase price.

When one of two innocent persons must suffer a loss, it must be borne by the one whose conduct rendered the injury possible. Flatte v. Nichols, supra. For the reasons previously expressed we have found defendant’s loss was caused by his own conduct. Under the rule of Flatte defendant must bear the loss. Defendant proposed that we extract another purchase price from plaintiff. To do so would shift the loss caused by defendant to plaintiff. This is contrary to Flatte and defendant’s demand is accordingly rejected.

Defendant’s demand for damages and attorney’s fees based upon the contention that plaintiff wasn’t entitled to seize the truck is without merit because plaintiff was the- owner of the truck.

Plaintiff answered the appeal contending that the trial judge should have awarded him the $1000 general damages he sued for based upon the conversion of his truck by defendant. The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with owner’s rights. Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3d Cir. 1971).. Here defendant went to Pharr’s lot and took Theriac’s truck without his knowledge or consent and held it until it was seized in connection with this suit. Defendant’s conduct was a conversion of plaintiff’s truck.

Plaintiff has proved that he suffered emotional upset as a result of the loss of the truck and for this reason we feel an award of general damages is appropriate.

General damage awards for the conversion of a vehicle range from $100 to $1000 in the following decisions—Hamilton v. Travelers Indemnity Company, supra; Lee v. Lewis, 339 So.2d 513 (La.App.2d Cir. 1976); Brian v. Wilson, 81 So.2d 145 (La. App.2d Cir. 1955); Steadman v. Action Finance Corporation, 197 So.2d 424 (La. App.2d Cir. 1967); Tarver v. Tarver, supra. In view of the fact that the truck was not taken from plaintiff’s immediate possession, and that the conversion was not done in any especially ostentatious way, we find that an award of $750 in general damages will adequately compensate plaintiff.

The trial court assessed costs equally against both parties and in his answer to the appeal plaintiff complains that all costs should be borne by defendant. We agree. Costs are to be assessed in accord with equity. LSA-C.C.P. arts. 1920 and 2164. We find in this case equity demands that costs be assessed against the defendant.

This action was precipitated by defendant’s self-help confiscation of the truck. Both this court and the trial court have rejected every element of defendant’s re-conventional demand. For these reasons we find that defendant should bear all costs in both the trial and appellate courts.

For the reasons hereinabove set forth the fifth paragraph of the judgment is amended to read as follows:

“FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of AL THERIAC, d/b/a ATCO CHEMICAL COMPANY, and against defendant, ALLEN McKEEVER, in the amount of Seven Hundred Fifty and no/100 ($750.00) Dollars, together with legal interest from date of judicial demand until paid, and for all costs of court.”

As AMENDED the judgment is AFFIRMED.


author: REDMANN, Judge. PER CURIAM.

text:
    Raymond J. HEBERT v. COURNOYER OLDSMOBILE-CADILLAC-GMC, INC. et al.
    No. 12308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 1981.
    Rehearings Denied Nov. 9, 1981.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Jack M. Alltmont, New Orleans, for Cournoyer Oldsmobile-Cadillac-GMC, Inc.
    Bernard, Cassisa, Babst & Saporito, Stephen N. Elliott, Metairie, for General Motors Corp.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his damage action on exception of prescription. The question is whether under La.C.C. 3519 the interruption of prescription by an earlier lawsuit “is considered as never having happened” when the judgment dismissing the earlier suit “without prejudice” (a few days before this suit was filed) is prefaced “after hearing ... stipulation by and between counsel ...,” indicating a stipulation for a dismissal without prejudice, and the transcript shows “a joint motion of all counsel ... to dismiss .. . without prejudice.”

The impasse at which plaintiff had arrived in the original suit was that, apparently through his own counsel’s fault in not properly responding to discovery regarding expert witnesses, the trial judge would not allow plaintiff’s expert to testify (in a case of a new automobile’s self-igniting, burning itself and plaintiff’s house as well). Had defense counsel opposed the motion for dismissal “without prejudice,” plaintiff might have obtained review, by writ or post-trial appeal, of the trial judge’s ruling on the expert (and might even have won the case on a res ipsa theory without the expert). Instead, defense counsel joined in the motion to dismiss “without prejudice” and ought not now to be heard to insist that the dismissal was with prejudice — prejudice to the point of extinction of plaintiff’s claim by prescription.

Our case is therefore distinguished from Adams v. Aetna Cas. & S. Co., 214 So.2d 148 (La. 1968), in which plaintiff alone, prior to answer, moved for and obtained dismissal “without prejudice” as La.C.C.P. 1671 expressly provides prior to answer; indeed, opposing counsel’s recollection, at p. 150, n.l, was that “[I] did not object to the Rhodes’ dismissal of the action but that I wanted the record to show that I was not concurring in it.” (Emphasis that court’s.) Certainly a plaintiff cannot deprive a defendant of prescriptive rights by unilaterally obtaining a dismissal “without prejudice”: C.C.P. 1671 cannot be construed to annul C.C. 3519.

Nor is our case comparable to Guillory v. Prairie Const. Co., 234 So.2d 486 (La.App. 3 Cir. 1970), in which plaintiff alone moved and obtained dismissal “without prejudice” at trial time, as C.C.P. 1672 gives the judge discretion to decide (despite the trial judge’s advice plaintiff “might be faced with a plea of prescription”). Guillory rejected the argument that a dismissal was not voluntary because plaintiff (having fired his first lawyer and done nothing about getting another until the morning of trial) had no possibility of winning had he gone to trial (because he had no medical evidence for his workers’ compensation claim). Our plaintiff both had a possibility that he forwent, and did not move dismissal alone but by “joint motion of all counsel.”

We conclude that a joint motion of all counsel to dismiss an action “without prejudice” bars defense counsel from asserting that dismissal to the prejudice of plaintiff in a later action. Defendants’ exception of prescription should therefore have been overruled on the ground that the earlier action interrupted and suspended prescription during its pendency, C.C. 3518, and that C.C. 3519 is not applicable to defeat the effect of that interruption and suspension.

Reversed and remanded.

PER CURIAM.

Defendant’s application for rehearing argues very persuasively that “approval or disapproval of the defendants [of a trial court’s dismissal ‘without prejudice’ is] irrelevant,” a view with which we do not disagree. Our case, however, is not a simple one of a “plaintiff .. . voluntarily dis-misspng],” C.C. 3519, an action: it is one of a joint motion of all counsel to dismiss without prejudice.

Rehearing is therefore refused.


text:
    OPINION OF the JUSTICES.
    No. 282.
    Supreme Court of Alabama.
    Oct. 8, 1981.
   The House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

We are in receipt of House Resolution 23, adopted September 30, 1981, which is, in part, as follows:

H. R. 23 REQUESTING AN ADVISORY OPINION OF THE SUPREME COURT RELATIVE TO H. B. 81 OF THE 1981 SECOND SPECIAL SESSION
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ALABAMA LEGISLATURE, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinion on the following constitutional question which has arisen concerning the pending H. B. which bill was introduced to propose a constitutional amendment to provide for making appropriations and time frame therefor and substituted with a bill making appropriations and time frame therefor statutory, copies of which are attached hereto and made a part hereof by reference:
1. Does the House substitution providing for making appropriations and time frame therefor by statute to pending House Bill 81 which proposed a constitutional amendment for making appropriations and time frame therefor violate the provisions of Section 61 of the Constitution of 1901, which provides:
“No law shall be passed [except] by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose.”?
RESOLVED FURTHER, That the Clerk of the House is hereby directed to send sufficient true copies of the pending H. B. 81, with attachments, to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.
SYNOPSIS: This bill proposes an amendment to the Constitution of Alabama to provide that no other bill shall be introduced in either house until all appropriations bills for the educational and general operations of state government have first been passed.
A BILL
TO BE ENTITLED
AN ACT
Proposing an amendment to the Constitution of Alabama providing for appropriation bills.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. The following amendment to the Constitution of Alabama is proposed and shall become valid as a part thereof when approved and proclaimed as provided by law:
PROPOSED AMENDMENT
During each regular session of the legislature, no other bill shall be introduced in either house until all appropriations bills for the educational and general operations of state government have first been passed.
Section 2. An election upon the proposed amendment is ordered to be held on the date of the first general or statewide election which is held at least three months next succeeding the adjournment of the current session of the legislature. The election shall be held in accordance with the provisions of Sections 284 and 285 of the Constitution of Alabama, as amended, and Sections 17-17-1 through 17-17-6 of the Code of Alabama 1975.
Section 3. Notice of the election and of the proposed amendment shall be given by proclamation of the Governor, which proclamation shall be published once a week for four successive weeks next preceding the day appointed for the election in a newspaper in each county of the state. In every county in which no newspaper is published, a copy of the notice shall be posted at each courthouse and post office.

We must respectfully decline to answer your inquiry, because we note that the subject matter of H. B. 81, as substituted, is substantially the same as the subject matter of Act No. 81-953, approved August 19, 1981. The Justices, on other occasions, have respectfully declined to render advisory opinions on the constitutionality of pending legislation which is similar to legislation already enacted into law. See Opinion of the Justices, 294 Ala. 589, 319 So.2d 715 (1975).

In Opinion of the Justices, 394 So.2d 957 (Ala.1981), this Court restated the reasons for declining to answer such requests:

Since the language of Code 1975, § 11-41 — 1, on which you request our opinion, is currently a part of the Code of Alabama, we are of the view that we should not address the constitutionality of that Code section in an advisory opinion. While individual Justices, within permissible limits, are privileged to give individual opinions on important constitutional questions properly submitted, yet the Supreme Court, of which these Justices are members, is an appellate court and the constitutionality of statutes should be tested by appropriate adversary proceedings when available or when at all possible. Opinion of the Justices, 294 Ala. 589, 319 So.2d 715 (1975).

In Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957), the Justices opined:

Under a long prevailing view, the provisions of § 34 et seq., Title 13, Code 1940, have been considered as privileging — but not requiring — the individual Justices of the Supreme Court to give advisory opinions at the request of the Governor or either House of the Legislature on important constitutional questions. These opinions are usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation or under stipulations of proposed bond issues, etc.
We think it appropriate at this time to again invite attention to the fact that while as individual Justices the members of this court, within permissible limits of the statute, are privileged to give their individual opinions on constitutional questions properly submitted to them, yet the court of appellate review and the constitutionality of existing statutes should be tested by appropriate adversary proceedings when available or when at all possible. [Emphasis added.]

We, therefore, respectfully decline to answer the request.

Respectfully submitted,

C. C. Torbert, Jr. Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

Sam A. Beatty

Oscar W. Adams, Jr.


text:
    Allen P. HAYES v. MOBILE COUNTY BOARD OF SCHOOL COMMISSIONERS.
    Civ. 2433.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    Rehearing Denied Jan. 28, 1981.
    J. U. Blacksher of Blacksher, Menefee & Stein, Mobile, for appellant.
    T. Dwight Reid of Perloff, Reid & Gibbons, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves the discharge during the school term of a nontenured teacher, who presently seeks an award of his unpaid salary for the remainder of the school year.

On September 22, 1978, which was more than two weeks after the commencement of the 1978-79 school term, the teacher, who held an Ed.D. degree, began teaching a combined first and second grade class at a school under the administration of the Mobile County Board of School Commissioners (board). A few days later, a written contract was forwarded to the teacher, who signed it and returned it. Thereunder, his employment was for no designated length of time, with the critical contract term now under controversy providing, “Your responsibilities will begin September 22, 1978 and subject to immediate termination upon notice . . .

This type of teacher contract was locally known as an interim contract and had been used for about four years in approximately one thousand instances, some of which being utilized to hire regular teachers who were employed after the beginning of a school term. This particular kind of interim contract was used to give the superintendent’s staff more flexibility in filling vacancies and transfers and also to establish a probationary period during which a new teacher, who, of necessity, might have been hastily employed without time or opportunity for prior evaluation, could be summarily terminated upon notice should his employment not prove satisfactory.

Soon after he commenced teaching, his performance in many particulars did not meet the expectations of his principal or of the elementary supervisor. By letter dated November 28, 1978, from the Assistant Superintendent for Personnel, he was notified of his immediate release from the interim contract. The letter followed several sessions of counseling and two interviews. We are not here concerned with the cause of his discharge, but with the method and right to fire.

On December 22, 1978, the teacher filed this action contesting his dismissal by the assistant superintendent, among other grounds. The board on January 24, 1979, acted to dismiss him and spread that dismissal upon its minutes, which reflect that the recommendations of the superintendent and staff to terminate his interim teaching contract effective November 28, 1978, were approved. The teacher was notified of such board action by letter dated February 2, 1979.

After a non-jury trial, the circuit court held that the teacher “was improperly terminated,” and that he should recover from the board his salary and benefits from September 22,1978, to January 24,1979. Since he was not awarded back salary from January 24, 1979, to the end of that school year, he appeals. We affirm.

The board’s teacher employment contracts are governed by contract law except where the ordinary law of contracts has been altered by a statute or by a constitutional provision. As to a nontenured teacher who is employed by the board for the first time after a school term has started, we find no fault with the interim contract, there being an absence of any statutory or constitutional regulation. The Alabama tenure statutes do not apply to the teacher or the contract in this case. The interim contract in this case is valid upon its face, but we are confronted with the question of whether it was constitutionally applied in this teacher’s discharge from his employment.

The teacher does not complain that he was dismissed for constitutionally impermissible reasons such as an exercise of his first amendment rights. His concern is that he was dismissed in disregard of the fourteenth amendment due process requirements. Upon this main issue, the decision of the circuit court must be upheld upon at least three theories.

(1)

While there are distinguishing factors between a discharge of a nontenured teacher during the scholastic year and the nonre-newal of the contract of a nontenured teacher at the end of the school year, some of the language in the latter type cases has applicability to the former.

An employing board of education may summarily terminate a probationary or nontenured teacher. Foster v. Blount County Board of Education, 340 So.2d 751 (Ala.1976). “The legislative intent of the tenure law is to establish two classes of teachers, those that have earned continuing service status and are thereafter protected by procedural and due process safeguards and those that are probationary and not so protected.” Hammond v. Bailey, Civ. 2424-A (Ala.Civ.App., October 2, 1980).

The plaintiff’s argument that she was entitled to a hearing is without merit. The plaintiff was a non-tenured teacher in her first year of teaching. Under Alabama law, she did not have a right to be re-employed absent sufficient cause to refuse re-employment. See State v. Board of Education of Fairfield, 1949, 252 Ala. 254, 40 So.2d 689. She therefore did not have a constitutionally protected “property interest” in continued employment, and the Board was empowered to refuse re-employment without a hearing. Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Skidmore v. Shamrock Independent School District, 5 Cir. 1972, 464 F.2d 605. And, although the Board’s action might affect Ms. Robinson’s ability to find other work, the effect was not so great as to constitute a deprivation of “liberty” within the meaning of the due process clause. See Roth, 408 U.S. at 574, 92 S.Ct. 2701 [at 2707]; Calvin v. Rupp, 8 Cir. 1973, 471 F.2d 1346. Summary judgment on the plaintiff’s procedural due process claims was therefore proper.

Robinson v. Jefferson County Board of Education, 485 F.2d 1381 (5th Cir. 1973).

(2)

As previously discussed, the interim contract was valid and the parties were bound by its terms. Under that agreement, this teacher became a teacher at will with no specified term of employment and his services were subject to being terminated by the employing authority during the school term with notice, with or without a hearing or cause, as long as the cause, if any, was not violative of constitutional rights. Blount County Board of Education, supra.

(3)

If the interim contract is totally ignored, his employment was legally terminated by the board on January 24, 1979, for the board’s decision did not deprive him of an interest in “liberty” or of a “property” interest in continued employment. Robinson, supra.

The trial court’s finding that the teacher had been initially improperly terminated by the superintendent and the judgment grant of salary and entitlements to January 24, 1979, in effect, was a finding that only the board could terminate the employment contract. The trial court, therefore, gave effect to their dismissal action as of the date thereof rather than making it retroactive to November 28, 1978. We find no error in that.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama (1975). His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.