author: PER CURIAM. LEMMON, Justice,

text:
    STATE of Louisiana v. Pedro RAYES.
    No. 82-KA-0931.
    Supreme Court of Louisiana.
    Dec. 17, 1982.
    William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    J. Michael Small, Kathrine S. Williamson, Alexandria, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with possession of marijuana with the intent to distribute in violation of La. R.S. 40:967. The prosecution involved some six pounds of marijuana seized by the authorities in Franklin Parish under a warrant executed for defendant’s home and Chevrolet truck on March 25, 1981. On December 7, 1981, after the trial court denied his motion to suppress the evidence, defendant entered a plea of guilty as charged, reserving his right to appeal the court’s adverse ruling on the suppression issue. See, State v. Crosby, 338 So.2d 584 (La.1976). On March 10, 1982, the court then sentenced defendant to five (5) years’ imprisonment at hard labor. It suspended that sentence, placed defendant on probation for five years, and ordered him to pay a 500 dollar fine. Defendant has now appealed his conviction and sentence to this Court, urging that the warrant application in this case “... failed to meet the two-pronged Aguilar-Spinelli test....” We agree and now reverse the ruling of the trial court.

The warrant in this case authorized a search of the trailer home “... occupied by a Mexican male known as Pete .... ” located off Louisiana Highway 4 outside Franklin, a Chevrolet pick-up truck “blue in color ... with a picture of an armadillo on the back window .... ” parked by the trailer, and “... any and all persons present at warrant execution to insure officer safety.” According to the affidavit executed by Deputy Sheriff Larry Crum on the night of March 24, 1981, a confidential informant had contacted him “within the past 48 hours” regarding “Pete’s” trailer off Highway 4. This informant had volunteered his services to Crum some two years before "... to assist in the curtailment of illegal drug activity .... ” and over the previous 24 months “... provided information ... which has led to at least 6 drug arrest[s] and 6 convictions.” As set forth in the affidavit, Crum’s informant told him that:

... there was a quantity of marijuana located at the residence described above . .. part of the drug may be stored in a blue dual wheel chevy pick-up belonging to Pete.

Crum then added the following observations of his own:

This residence and vehicle is personally known to your affiant and is located in Franklin Parish. Your affiant further states that possession of marijuana is illegal and contrary to La. Statutes and that the preservation of said articles describe above in this search warrant is necessary to preserve these said statutes. It is now approaching the hour of darkness and your affidant request[s] to the able to search after darkness....

At the hearing on the motion to suppress, counsel stipulated that the bulk of the marijuana seized, from four to six pounds, had come from the Chevrolet pick-up truck. The officers had also recovered a much smaller amount, approximately two ounces, from defendant’s pockets at the time they executed the warrant. Counsel argued below, and contends now on appeal, that Crum’s affidavit failed to establish probable cause for the search of the trailer or the Chevrolet truck because it offered no basis for concluding that the informant was credible and his information reliable.

In State v. Jeffcoat, 403 So.2d 1227, 1229-30 (La.1981), this Court observed that:

The facts necessary to show probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Paciera, 290 So.2d 681 (La.1974). The Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), laid down the test by which information given the affiant by an unidentified informant could be considered by the magistrate in determining if there was probable cause upon which a search warrant should issue. “[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were there where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ... was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

In this case, we are satisfied that the allegation Crum’s informant had provided tips in the past leading to the arrest and conviction of drug traffickers adequately established his credibility as a source of information. State v. Feeback, 414 So.2d 1229 (La.1982); State v. Wichers, 392 So.2d 419 (La.1981); State v. Turnipseed, 362 So.2d 486 (La.1978). We agree with counsel, however, that the affidavit fails to indicate how the informant came by his information, whether from personal knowledge or the reliable reports of others. The additional observation in the affidavit that part of the marijuana may be stored in the Chevrolet truck suggests that the informant was not speaking from personal observation but simply relaying information provided by other unnamed sources of undetermined reliability. In some cases, independent observations made by police officers may bolster an otherwise inadequate tip under Aguilar and provide probable cause for a warrant. State v. Jeffcoat, supra. In this case, however, with night approaching, Crum went to the magistrate and not the trailer. Although he knew the area, the officer had therefore observed nothing of a suspicious nature on the premises that might have independently confirmed the informant’s tip. Compare, State v. Tate, 407 So.2d 1133 (La.1981).

The affidavit in this case therefore failed to establish probable cause for the search of defendant’s trailer home and Chevrolet truck, or his person, State v. Jeffcoat, supra. Accordingly, we reverse the ruling of the trial court, vacate defendant’s plea of guilty, and remand the case for further proceedings not inconsistent with this opinion.

PLEA VACATED AND CASE REMANDED.

LEMMON, J., dissents with reasons.

WATSON, J., dissents for reasons expressed by LEMMON, J.

LEMMON, Justice,

dissenting.

We should take seriously the often quoted remark in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), which reminds reviewing courts that affidavits in support of the issuance of search warrants must be construed nontechnically and in a commonsense fashion.

Here, the affidavit recites that a confidential informant (whose reliability was clearly established by prior arrests and convictions, as well as by controlled purchases of drugs) told the affiant that “there was a quantity of marijuana” at defendant’s residence. If the affidavit had asserted that the informant’s statement was “I saw a quantity of marijuana”, then first hand knowledge would be clear; on the other hand, if the affidavit had asserted that the informant’s statement was “I was told there was a quantity of marijuana”, then second hand knowledge would be clear (unless, perhaps, the statement was attributable to the defendant). While the source of knowledge is technically unclear, the facts recited in the affidavit could be interpreted either way, and it is equally reasonable to infer that the informant spoke from first hand knowledge. I would therefore construe the affidavit, nontechnically and in a commonsense fashion, in favor of the validity of the warrant, and I would hold that the search was not unreasonable (which is the only prohibition in the Fourth Amendment).

Additionally, even if there was a technical violation of warrant requirements, these officers in good faith presented their facts to a magistrate in the haste of a criminal investigation, in an effort to comply with principles dictating the need for prior judicial approval of an intrusion into privacy. In such instances, this court should only hesitatingly invoke the exclusionary rule (which has nothing to do with guilt or innocence), since the rule’s efficacy as a device to regulate police misconduct is very limited when the police have sought and obtained prior judicial approval for their search. See United States v. Williams, 622 F.2d 830 (5th Cir.1980).

In this context, I note that the United States Supreme Court has recently agreed to reexamine the exclusionary rule in the context of a good faith search pursuant to a warrant. Until the Court rules on the issue, I would not reverse the conviction of an obviously guilty criminal when the affidavit by a non-lawyer can with equal reasonableness be construed in favor of the validity of the warrant.

      . In Illinois v. Gates, - U.S. -, 103 S.Ct. 436, 74 L.Ed.2d 595, the Court restored the case to the calendar for reargument, specifically requesting the parties to address the following question:

        “[W]hether the rule requiring the exclusion at a criminal trial of evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961); Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652] (1914), should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.”


source: Caselaw Access Project

author: COLE, Judge. PER CURIAM. SHORTESS, Judge,

license: Public Domain

text:
    Diana Smith WHIPPLE v. Keith M. WHIPPLE.
    No. 14940.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    On Rehearing Dec. 9, 1982.
    Writ Denied Feb. 4, 1983.
    Alan Fishbein, Baton Rouge, for plaintiff-appellee Diane Smith Whipple.
    Dennis R. Whalen, Baton Rouge, and Ernest A. Kelly, Houma, for defendant-appellant Keith M. Whipple.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This is an appeal from a judgment fixing the amount of alimony pendente lite payable by the husband, Keith Whipple, to his wife, Diana Smith Whipple, in the sum of $1,500.00 per month, due in equal installments on the first and fifteenth of the month. The husband appealed. We affirm.

The parties were married in 1978. Both had been married before. No children were born of the marriage. The husband, who is a practicing lawyer, earns between $3,000.00 and $4,000.00 per month, which amounts the trial court averaged at $3,700.00 per month.

The parties lived in a 5,000 square foot house (the air conditioned space) with a swimming pool and went on several trips that were rather expensive. Also, the husband gave the wife a Mercedes-Benz automobile and considerable jewelry.

The sole issue presented in this case is the correctness of the trial court’s determination that the earning capacity of the wife is immaterial in fixing the amount of alimony pendente lite. The trial court refused to admit testimony concerning the wife’s earning capacity.

Counsel for appellant urges that the holding of this court in Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir.1980), which ruled that the wife’s earning capacity was material in fixing the amount of alimony pendente lite, is controlling. However, Smith was decided on the basis of LSA-C.C. art. 119, art. 148 being held to be unconstitutional in the form in which it existed at the time the judgment of the trial court was signed (May 15, 1979). Art. 148, before amendment, required the husband to pay alimony pendente lite, but not the wife, and it was thus held in Smith to be gender based and, hence, unconstitutional. Cf. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Lovell v. Lovell, 378 So.2d 418 (La.1979).

We must decide the present case on the basis of art. 148 as it now stands, not as it stood at the time of the trial court’s judgment in Smith. Art. 148, which provides for alimony pending separation or divorce (alimony pendente lite) now reads as follows:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Art. 160 of the Civil Code, which constitutes the Codal authority for the award of alimony after divorce (permanent alimony) now reads as follows:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity, the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

Both articles, 148 and 160, were amended by the legislature into their present forms by the same Act, Act 72 of 1979. It will be noted that while earning capacity of both spouses is to be considered in fixing permanent alimony, no such determinative factor was legislatively provided for fixing alimony pendente lite. As was correctly stated in Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d C6r.1980), the facts that earning capacities of both spouses were not given as factors to be considered in fixing alimony pendente lite while they are specifically given as factors to be considered in fixing permanent alimony, and that the amendments to arts. 148 and 160 were adopted by the same act of the legislature, indicate that earning capacity is not a factor properly to be considered in fixing alimony pen-dente lite. As was stated further in Ar-rendell the period pending divorce or separation is a period of transition, in which the married party who had not been the breadwinner while the parties were living together is searching out possibilities for employment and adjusting to new circumstances. Thus, in that temporary situation, unlike the situation existing after divorce, the relative earning capacities of the two spouses is not a factor properly to be considered. We find the distinction obviously intended by the legislature to be made between arts. 148 and 160 determinative and hold the relative earning capacities of the two spouses was properly ruled irrelevant or immaterial for purposes of fixing alimony pendente lite.

Hence, we hold the trial court was correct in refusing to consider Mrs. Whipple’s earning capacity, and affirm the action of the trial court in fixing the alimony pendente lite at $1,500.00 per month, there not having been a clear abuse of the broad discretion given the trial court in fixing alimony pendente lite. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980); Ryan v. Ryan, 401 So.2d 514 (La.App. 2d Cir.1981).

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

AFFIRMED.

Before COVINGTON, LOTTINGER, EDWARDS, PONDER, LEAR, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER and ELLIS, JJ.

ON REHEARING

PER CURIAM.

We granted a rehearing to reconsider our original holding that the earning capacity of the wife in this case is not a factor properly to be considered in the determination of an award for alimony pendente lite.

La.Civ.Code art. 148 concerns alimony pendente lite. Before its amendment in 1979, it read as follows:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

Under this form of article 148, courts construed “income” to include only the actual earnings or salary of the wife, as well as income produced from the wife’s capital assets. The Louisiana courts refused to consider the wife’s earning capacity as a factor in determining whether the spouse has sufficient income for maintenance. See Ward v. Ward, 339 So.2d 839 (La.1976); Bilello v. Bilello, 121 So.2d 728, 240 La. 158 (1960); Abrams v. Rosenthal, 96 So. 32, 153 La. 459 (1923); Cabral v. Cabral, 245 So.2d 718 (La.App. 4th Cir.1971); McMath v. Masters, 198 So.2d 734 (La.App. 3d Cir.1967); Shapiro v. Shapiro, 141 So.2d 448 (La.App. 4th Cir.1962).

Since alimony pendente lite was considered to be a method of enforcing the husband’s obligation to support under La.Civ.Code art. 120 (an obligation which continues during the pendency of a suit for separation from bed and board or for divorce and which does not terminate until the marriage is dissolved by death or divorce), the wife was not required to obtain employment or deplete all of her capital before being entitled to an award. Only if the wife voluntarily chose to earn her own living did she take herself out of the provisions of article 148 to the extent of her earnings. See Bilello, supra.

However, in Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir.1980), this Court found article 148 in its pre-1979 amendment form to be unconstitutionally gender based. Therefore, the court looked to La.Civ.Code art. 119 in determining whether the wife was entitled to alimony pendente lite. Although previous cases had found alimony pendente lite to be based on the husband’s obligation of support under article 120, the Smith court found that under article 119 the obligation of support is a mutual one, so that either spouse must come to the assistance of the other if the other spouse is in need thereof. The court concluded that the change in social circumstances now requires, where no impediment exists to the employment of the wife, she should not be entitled to alimony pendente lite unless she is shown to be unable to find employment with which to support herself.

Act 72 of the 1979 session of the Louisiana legislature amended article 148. Its new form reads as follows:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

In LeBlanc v. LeBlanc, 405 So.2d 1187 (La.App. 1st Cir.1981), this Court had the occasion to address the present issue under article 148 as amended in 1979. After considering the primary legislative purpose in amending the article to remove its sex-based discrimination, we concluded the present article 148 must be interpreted on an even and non-discriminatory basis in order to reflect article 119’s mutual obligation of support. To accomplish this goal, we concluded the wife may not establish need for alimony pendente lite by merely refusing to work, just as the husband may not escape his obligation of support by refusing to work. Otherwise, a situation may be created in which the spouses could race to quit work, without just cause, in order to require the other spouse to pay alimony pendente lite.

The Second Circuit has rejected the Smith-LeBlanc rationale. In Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980), the Second Circuit stated it disagreed with Smith insofar as it stood for the proposition that a wife must show she is unable to find employment as a precedent to obtaining alimony pendente lite. Arrendell accepts the traditional view that alimony pendente lite is designed to preserve the status quo insofar as maintenance and support are concerned. The pendente lite period is seen as a time for rehabilitation and if “the spouses themselves have, during the marriage, assigned the role of wage earner to one and the role of homemaker to the other, fairness and practicality dictate that the wage earner spouse continue that role during the temporary period of litigation and adjustment.” 390 So.2d at 930. Yet, even Arrendell admits the earning capability of the claimant spouse should be considered if neither spouse is employed or if a claimant spouse has been regularly employed during the marriage but happens not to be employed at the very moment of trial of the alimony rule, and has the capability of securing employment immediately.

Our decision following the original hearing in the instant case was contrary to LeBlanc. This result, that earning capacity is not a factor properly to be considered in fixing alimony pendente lite, was reached after a re-examination of Arrendell and of the comparative legislative history and wording of Civil Code articles 148 and 160. We now conclude the LeBlanc decision should not be overruled; rather it, along with Smith, needs amplification.

Aside from the removal of the sex bias in old article 148, the 1979 amendment also changed the word “shall” to the word “may” in providing for an award of alimony pendente lite. Thus, as article 148 now stands, it is discretionary with the trial court to award alimony pendente lite if the petitioning spouse lacks sufficient income for his or her support. We find the legislative purpose in making the change in wording from “shall” to “may” to have been to effect a substantive change so that the trial court is not always required to award alimony if other factors are present, such as the petitioning spouse’s capacity for self-support. For example, the trial court’s discretion could be used to avoid the problem foreseen in LeBlanc. If it is apparent a claimant has quit work or is only temporarily unemployed, the judge may exercise his discretion and refuse a pendente lite award or give a decreased amount.

We do not believe, however, the trial court must in all cases expect the petitioning spouse to seek employment immediately. Perhaps, as suggested in Arrendell, when the period of alimony is not likely to be of an extended duration, it is improper to require the petitioning spouse to undergo the new and disarming experience of searching out a job. Nor is it required, depending upon attendant circumstances, that the claimant seek just any type job or accept the first job offered. However, it is equally improper to refuse to consider the petitioning spouse’s earning capacity altogether, when earning capacity, ease of obtaining a job, the care and supervision of children, and the possible duration of alimony pendente lite are all factors to be considered by the trial court.

In the present case, the trial court refused to admit testimony tending to show the petitioning spouse’s capacity for self-support, and likewise refused to consider the spouse’s earning capacity in framing its judgment. Apparently the trial court was of the view that since article 148 does not specifically require a consideration of the petitioning spouse’s earning capacity, as does article 160, it was prohibited from considering the earning capacity of the petitioning spouse. This was error. It is only after all factors relevant to a discretionary award of alimony pendente lite are considered, including the earning capacity of the petitioning spouse, that alimony pen-dente lite may be granted to the petitioning spouse.

While the trial court did not admit, and thus did not consider, the testimony relative to Mrs. Whipple’s earning capacity, the evidence is before us on proffer and we, therefore, address its decisional effect. La.Code Civ.P. art. 2164. After reviewing the preferred testimony of Mrs. Whipple and that of Miss Stephanie Chalfin (a certified rehabilitation counselor whom we find to be an expert in the field of job placement), we affirm the award of alimony pendente lite made by the trial court.

Mrs. Whipple has no work history during her marriage to Mr. Whipple. In fact, she has not been employed for approximately five years. Though she was once a cosmetologist, she is now unlicensed and apparently needs to update her training in order to renew her license. Admittedly, she has not sought employment but explained she had been involved in two automobile accidents which resulted in medical treatment and the need for further therapy. We note specifically Mrs. Whipple has two minor children from a previous marriage who reside with her. Although Mr. Whipple is not obligated to support these children, nevertheless custodial care is required and bears upon employment considerations.

Miss Chalfin testified there were several jobs available which Mrs. Whipple could perform. These involved sales in retail stores, work related to cosmetology, and unskilled clerical positions. It appears evident that at the time of the hearing Mrs. Whipple, assuming no physical impediment, could have obtained employment for the minimum wage prescribed by law. However, she is accustomed to a high standard of living and such a job would not amount to a preservation of the status quo. Insofar as is economically possible, the support afforded the claimant spouse should be consistent with the standard of living to which the parties were accustomed. As regards some of the better paying jobs allegedly available at the time of the hearing, there was no assertion by Miss Chalfin that Mrs. Whipple would, in fact, obtain one simply by applying for it. Job competition is, of course, a factor to be considered. This is particularly true where there is a lack of experience in the particular field of endeav- or.

Mrs. Whipple did not terminate employment in order to obtain alimony. Income production was not one of her marital roles. During the litigation period it is reasonable to allow time for her to renew her cosmetology license or to seek training in some other employment field. We do not deem it necessary for her to accept the first available job regardless of circumstances or the amount of income it will produce. In conclusion, our review of the proferred testimony does not derogate from the validity of the trial court’s award nor does the amount constitute an abuse of its discretion.

The trial court fixed the amount of the expert witness fee for Stephanie Chalfin at $350.00. It was not awarded because her testimony was not deemed admissible. We must amend the judgment of the trial court by decreeing an award to her of $350.00, same to be taxed as a part of the costs of court.

Appellant contends we erred in our original opinion by stating the wife was given a Mercedes Benz automobile. Our statement in the original opinion was based upon the record before us and was not intended to be a legally conclusive determination of ownership, the issue of ownership not having been placed before us.

For the foregoing reasons, we amend the judgment appealed to the extent an expert witness fee in the amount of $350.00 is awarded to Stephanie Chalfin, same to be taxed as cost, and in all other respects the judgment is affirmed. Costs are to be assessed upon final determination of issues still pending in the trial court.

AMENDED AND, AS AMENDED, AFFIRMED.

SHORTESS, J., concurs and assigns reasons.

SHORTESS, Judge,

concurring.

I respectfully Concur.

The majority opinion states:

“It is only after all factors relevant to a discretionary award of alimony pendente lite are considered, including the earning capacity of the petitioning spouse, that alimony pendente lite may be granted to the petitioning spouse.”

I do not feel, however, that they intend to compel the consideration of earning capacity in every determination of alimony pen-dente lite. I believe the trial judge should assess the work-history of the spouses in determining whether earning capacity need be evaluated. If the work-history reveals that the parties have assigned one spouse the role of homemaker and/or child-rearer, then that spouse’s earning capacity should not be considered, as it might result in the violation of the status quo.

However, earning capacity is a proper factor when during the marriage both spouses have been employed, when neither spouse has been employed, or when a claimant spouse has been regularly employed during the marriage, but happens to be unemployed at the time of trial. A spouse should not be allowed to abuse the system by ceasing to work, after having worked during the marriage, in order to obtain or increase alimony pendente lite. Earning capacity should only be considered in light of the intent of La.C.C. art. 148, which is to maintain the status quo.

Accordingly, I concur.

      . Cf. Harrington v. Campbell, 413 So.2d 297 (La.App. 3d Cir.1982), which follows Arrendell. However, Morris v. Morris, 413 So.2d 285 (La.App. 3d Cir.1982), indicates Smith (which is based upon LSA-C.C. art. 119, because of the then unconstitutional status of art. 148), is still good law, apparently notwithstanding the fact that a new version of art. 148 which passes constitutional muster has not been enacted.

      . Cf. Desormeaux v. Brignac, 408 So.2d 32 (La.App. 3d Cir.1981).


author: PER CURIAM. WATKINS, Judge

text:
    Bridgette Butcher WATKINS v. David O. WATKINS.
    No. 14976.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 9, 1982.
    Stephen M. LaRussa, Houma, for plaintiff and appellant.
    Randall Alfred, Houma, for defendant and appellee.
    Before COVINGTON, LOTTINGER, EDWARDS, PONDER, LEAR, COLE, WATKINS, SHORTESS, CARTER, SAVOIE, LANIER and ELLIS, JJ.
   PER CURIAM.

Appellant, Bridgette Butcher Watkins, brings this appeal from a judgment denying alimony pendente lite.

Our decision in the case of Whipple v. Whipple, 424 So.2d 263, which was consolidated for hearing with this instant case, holds that the claimant spouse’s earning capacity is one factor which may be considered by the trial court in determining whether alimony pendente lite should be awarded to that spouse. Based upon our holding in Whipple, we find that the trial court properly considered Mrs. Watkins’ earning capacity.

In its reasons for judgment, the trial court made the following findings:

“... [t]he court finds that while the husband in this present case has sufficient funds over and above his expenses to pay an amount to support his wife; that his wife is in good health, has a high school education, and has no children to care for. There is therefore no impediment to her obtaining gainful employment and providing for her own support. There is some evidence that she has made some attempts to find employment. However, the court does not feel that these attempts are sufficient to establish the fact that she is unable to find employment.”

Because appellant has not caused the testimony taken at the rule for alimony pen-dente lite to be transcribed, we can only assume from the trial court’s written reasons for judgment that the evidence heard by the trial court supports its factual conclusion that Mrs. Watkins has the capacity to earn a living and support herself and that she failed to prove that she is unable to find employment. Thus, we cannot say that this conclusion by the trial court is manifestly erroneous and the trial court’s finding in this regard will therefore not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs, both on the rule and on appeal, are to be paid by plaintiff-appellant, Bridgette Butcher Watkins.

AFFIRMED.

SHORTESS, J., dissents and would remand. See concurrence in Whipple v. Whipple, 424 So.2d 263.

WATKINS, Judge

(dissenting).

The brief excerpt from the trial court’s reasons for judgment upon which the majority relies for its facts virtually places the present case on all fours with Whipple v. Whipple, 424 So.2d 263, as there is no real evidence of the present ability of the wife to obtain suitable employment. The trial court in the present case states that the wife’s unsuccessful attempts to find employment are insufficient to establish that she was unable to find employment. However, the reverse side of the coin is that the facts, therefore, are insufficient to establish that the wife was able to find employment, which is the precise reason for the award of alimony in Whipple.

I think the case should be remanded to obtain a transcript of testimony from the trial court, or if that is unavailable, for the taking of further testimony.

I respectfully dissent, believing the facts as available to be inconclusive as to the earning capacity of the claimant spouse.


author: BOUTALL, Judge.

text:
    R.J. DAIGLE AND SONS CONTRACTORS, INC. v. SAMPEY BROTHERS GENERAL CONTRACTORS, INC. v. MAR-CHAM, INC.
    No. 5-182.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.
    Jerome J. Barbera, III, Thibodaux, for Mar-Cham, Inc., third-party defendant-appellant.
    Leon C. Vial, III, Hahnville, for Sampey Bros. General Contractors, Ltd., defendant-appellee.
    Sheldon G. Fernandez, Gretna, for R.J. Daigle & Sons Contractors, Inc., plaintiff-appellee.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOUTALL, Judge.

Appellant, Mar-Cham, Inc., was the third party defendant in a suit on open account by R.J. Daigle and Sons Contractors, Inc., against Sampey Brothers general contractors. Mar-Cham appeals the judgment against it in favor of Sampey Brothers in the amount of $52,329.00. We affirm in part and amend in part.

FACTS

This dispute arose around the construction of Pecan Oak Subdivision in Paradis, St. Charles Parish.

In the course of construction R.J. Daigle and Sons had contracted with Sampey to supply some $15,000.00 worth of sand to be used in raising the grade of a street in the subdivision. The cost of this sand was not included in Sampey’s original bid to Mar-Cham however Larry Sampey testified there was an oral agreement by Julian Champagne, the president of Mar-Cham, to pay for the extra sand. R.J. Daigle was a witness to that agreement. Near the end of the five month completion time specified in the contract disputes arose between the Sampeys and Julian Champagne. Mar-Cham refused to pay the 10% retainage and the extra sand cost, and Sampey could not pay Daigle. Daigle sued Sampey, who third-partied Mar-Cham. Mar-Cham reconvened against Sampey for breach of contract for failure to complete work timely and in a workmanlike manner.

As work progressed on the subdivision the originally cordial relationship between the Sampeys and Julian Champagne deteriorated due to many factors. The whole project was hastily put together and lacked careful planning and supervision. Julian Champagne, who was on the site supervising almost every day, testified that this was his first subdivision venture. His inexperience is evident from his testimony. For example, he entered into many oral changes of the contract and on one occasion even altered the blue prints without consulting the engineer.

The blue prints, prepared by George Schrenk & Associates of New Orleans, were originally designed for concrete streets and sub-surface drainage. The cost of such construction proved to be prohibitive and the Sampey’s bid was for blacktop roads and ditch drainage. The blueprints were never completely amended for the change in design. The location of the ditches and sewer lines was not specified on the plans, and changes had been scribbled in in pencil.

The surveyor in charge of plotting out the location of lots and streets was Roland Bernard. Bernard calculated the road grade elevations, which were then incorporated into Schrenk’s blueprints. Some of the elevations were incorrect. One of the streets he had plotted out was 50 feet off target. While he should have provided 30 control points from which the Sampeys could square the corners of the streets, a Sampey surveyor testified that he could only find four. Some of the ditch depths were also incorrect. The work which had already been done had to be redone as these deviations were discovered. The Sampeys testified that Roland Bernard was often hard to find when these problems arose, and that Schrenk was impossible to contact.

Additionally Julian Champagne had unwittingly added to the Sampey’s difficulties by having another contractor come in before the Sampeys to cut some of the streets. One street had been cut a foot too low.

The delays which Mar-Cham claims put Sampey in breach of contract were caused by all of the above factors as well as bad weather in February of 1979. Flooding in R.J. Daigle’s sand pits caused a delay of at least six weeks in furnishing sand to fill in the street that was too low.

The contract between Mar-Cham and the Sampeys specified that all work would be completed within five months, i.e., by July 1, 1979. Larry Sampey testified that at that time 99% of the work was completed, excluding another street where the grade was too low and the fact that the water lines in the ditches did not have sufficient dirt cover. Mr. Schrenk was in Europe for three weeks and was unavailable to advise on these matters. At Julian Champagne’s instigation the contract was extended until September 1,1979 on the condition that the Sampeys correct the above-mentioned prob-. lems and haul away felled trees. Sampey testified that but for Schrenk’s unavailability work would have been completed by September first. The Sampeys did eventually correct the problem with insufficient cover over the water lines, but contended that there was never any agreement about the trees.

The subdivision was inspected and recommended for acceptance by St. Charles Parish Engineers on November 28, 1979. At this time the waterworks was only conditionally approved and did not gain final approval until April 2,1980. It is the Sam-peys’ position that the Parish’s recommendation of acceptance on November 28, 1979 amounted to substantial completion of their contractual duties.

Nevertheless Julian Champagne remained dissatisfied with the work and made several demands through his attorney for the Sampey’s to return and remove trees and dirt, among other things. The Sam-peys refused.

The subdivision was dedicated to the Parish on April 7, 1980, however, in May and June of 1980 Julian Champagne contracted with St. Charles Enterprises to come in and finish the work by removing trees and dirt and regrading ditches. The cost of this work was $23,000.00.

ISSUES

Appellant Mar-Cham assigns as error almost every finding of fact by the trial judge, and raises four issues in its brief.

1) Is Sampey entitled to collect the entire remaining balance of the contract price?
2) Is Sampey entitled to extra funds for the extra materials used?
3) Is Sampey entitled to attorney’s fees?
4) Is Mar-Cham entitled to attorney’s fees?

In his Reasons for Judgment the trial judge found that recommendation for acceptance by the Parish Engineer on November 28, 1979 amounted to substantial performance of the contract by Sampey Brothers. He also found that the deficiencies and delays of which Mar-Cham complained were not the responsibility of Sam-pey. From our reading of the record we cannot say that the trial judge was in error in these findings of fact. We concur with the trial court’s opinion that “... the entire contractual relationship between the parties left a lot to be desired,” and that the incorrect plans and specifications, as well as confusion over who was responsible for what, all contributed to the delays in construction.

The trial judge awarded judgment in favor of R.J. Daigle against Sampey Brothers in the amount of $14,139.00, and judgment in favor of Sampey against Mar-Cham in the amount of $52,329.00 as follows:

Balance of contract retainage $38,560.00
Additional sand 9,012.00
Attorney’s fees 4.757.00
$52,329.00

We amend to set aside that portion of the judgment which awards attorney’s fees to Sampey Brothers. The law is well settled in this state that attorney’s fees are not a proper element of recovery in a contract case unless a statute or the contract provides for them. Dickson v. Moran, 344 So.2d 102 (La.App. 2d Cir.1977). No statute has been argued by either party to apply to this situation, and the contract provided only for attorney’s fees for Mar-Cham. Since Mar-Cham has been cast in judgment we decline to award it attorney’s fees, but under our law Sampey is not entitled to them either.

Additionally we amend to award Mar-Cham $750.00 which it was forced to pay to have a missing fire hydrant installed in the subdivision before it could gain Parish approval of the subdivision’s water system.

In accordance with the above, we amend the judgment in favor of Sampey Brothers general contractors to the sum of $46,822.20 and as thus amended we affirm. Costs of this appeal to be assessed equally on appellant and appellee.

AFFIRMED IN PART, AMENDED IN PART.


author: SHORTESS, Judge.

text:
    Richard Allen LAVIGNE v. SARA, INC.
    No. 15128.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellant.
    Tommy C. Rutledge, DeQuincy and Win-field E. Little, Jr., Lake Charles, for defendant-appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Richard Allen Lavigne (plaintiff) seeks to recover the minimum wage under Title 29, United States Code, for services performed for Sara, Inc. (defendant) while he was an inmate at Dixon Correctional Institute.

Defendant filed an exception of no right of action alleging that plaintiff’s petition failed to show that plaintiff was entitled to minimum wage. The trial judge sustained the exception, stating that:

“... inmates of the Louisiana Department of Corrections are not ‘employees’ under the Fair Labor Standards Act and that inmates remain under the direct supervision and control of the Louisiana Department of Corrections and not Sara, Inc.”

The exception of no right of action questions plaintiff’s legal interest to bring a particular action. If the plaintiff does not belong to a particular class to which the law grants a remedy, the exception of no right of action should be maintained. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979).

If plaintiff is an “employee,” he would have a right of action within the meaning of the Fair Labor Standards Act, 29 U.S.C.A. § 201, et seq. (1978) [hereafter referred to as the Act]. The applicable jurisprudence holds, however, that prison inmates are not “employees” within the meaning of the Act. Alexander v. Sara, Inc., 505 F.Supp. 1080 (M.D.La.1981); Worsley v. Lash, 421 F.Supp. 556 (N.D.Ind.1976); Sims v. Parke Davis & Co., 334 F.Supp. 774 (E.D.Mich.1971), aff’d, 453 F.2d 1259 (6th Cir.1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972); Hudgins v. Hart, 323 F.Supp. 898 (E.D.La.1971); Huntley v. Gunn Furniture Co., 79 F.Supp. 110 (W.D.Mich.1948); compare, Parker v. State, 353 So.2d 333 (La.App. 1st Cir.1977), writ denied, 354 So.2d 1375 (La.1978).

A similar situation was presented in Alexander v. Sara, Inc., supra, where an inmate at Angola claimed that he was an employee within the meaning of the Act while he performed duties similar to those of instant plaintiff in a plasmapheresis program conducted by the same defendant, Sara, Inc. The court found that the inmate was not an employee within the meaning of the Act.

After reviewing the record and the jurisprudence, we find that plaintiff cannot be an “employee” within the meaning of the Act. As stated by the trial judge:

“... applicable jurisprudence unequivo-cably states that the labor of the inmates of the state prison belongs to the state, can be lawfully employed only by the state, and that the inmates in this type of situation are not employees of defendant for the purposes of the Fair Labor Standards Act.”

The peremptory exception of no right of action was properly maintained by the trial judge. All costs are taxed to appellant.

AFFIRMED.

      . Plaintiffs petition alleges that he is “... presently residing at Dixon Correctional Institute in East Feliciana Parish,” but is silent as to his status as an inmate there. His status as an inmate was conceded throughout these proceedings, even in plaintiffs brief.


author: ELLIS, Judge:

text:
    Reverend and Mrs. J.F. HARTNER v. EXECUTIVE INDUSTRIES, INC. and Coleman Oldsmobile, Inc., d/b/a Coleman RV Center.
    No. 82-CA-0014.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Albert J. Lord, Zachary, for plaintiffs-appellants Reverend and Mrs. J.F. Hartner.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant Coleman Oldsmobile, Inc., d/b/a Coleman RV Center.
    R. Michael Caldwell, Baton Rouge, for defendant-appellant Executive Industries, Inc.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Reverend and Mrs. J.F. Hartner against Executive Industries, Inc. and Coleman Oldsmobile, Inc., doing business as Coleman RV Center, seeking rescission of the sale of a 1976 Diplomat II motor home, the return of the purchase price thereof, and damages. The case was tried on its merits before a jury, which returned a verdict awarding plaintiffs a reduction in the purchase price of $14,000.00 and $3,500.00 in attorney’s fees. From the judgment, both plaintiffs and defendants have appealed.

Plaintiffs purchased the vehicle in question from Coleman on May 4, 1976, for a cash price of $24,021.80 and incurred $345.89 in license fees and taxes. Shortly after the purchase, it was discovered that the motor home leaked badly, and it was returned to Coleman for repairs. Coleman made a number of attempts to repair the leaks, but was unable to do so. In addition, holes began to appear in the aluminum siding. Eventually, Coleman referred plaintiffs to Executive Industries, Inc., the manufacturer of the motor home.

Because Coleman did not have the personnel trained to perform major body repair, Executive referred plaintiffs to Frank Gillman Motor Homes in Houston, Texas. Gillman attempted to repair the leaks on two separate occasions. Gillman kept the vehicle for a total of five months, between April and December, 1978, but was unable to repair the leaks. The work by Gillman was done at Executive’s expense.

In September, 1979, the motor home was taken to Colerain Dodge in Cincinnati, Ohio, where a new top was put on the vehicle and other major repairs carried out, once again at Executive’s expense. However, despite this work, and one subsequent attempt at repairs, the motor home continued to leak, and this suit was brought in September, 1980, for rescission of the sale.

In this court, defendants assign three errors: first, that the jury erred in finding defects sufficient to justify a reduction in the purchase price, since any defect which existed at the time of the sale had been removed or corrected prior to the filing of the suit; second, that the reduction in the purchase price is excessive; and third, that the award of attorney’s fees is excessive.

Plaintiffs argue that the sale should have been rescinded; that damages should have been awarded; and that the attorney’s fees should be increased.

It is clear from the record that the motor home purchased by plaintiffs leaked excessively from the time of its purchase until plaintiffs filed this suit four years later. During that time, numerous attempts at repair were made, none of which were successful. Defendants argue that, since the original outer shell of the motor home was entirely replaced, the original defects complained of could no longer exist, and the redhibitory action is inappropriate. There is no merit to this contention. The motor home leaked when plaintiffs bought it, and, despite many attempts at repair made by defendants’ agents, it still leaked when this suit was tried. The defect has not been corrected.

Defendants’ other contention is that the leaks are due to an awning installed by plaintiffs. The evidence reflects leaks in the motor home in many areas other than in the vicinity of the awning. There is no positive evidence that any leaks resulted from the installation of the awning. The awning was removed and replaced on more than one occasion by defendants’ representatives, so that any defect in the original installation by plaintiffs would no longer be of any moment.

We find that plaintiffs have shown the existence of a redhibitory defect in the motor home.

Plaintiffs contend that the evidence in the case is sufficient to support rescission of the sale, rather than a reduction in the purchase price. Article 2520 of the Civil Code provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

During the time that they owned the camper, plaintiffs were able to use it only nine times for pleasure trips. Of the approximately 12,000 miles on the odometer at the time of the suit, about 5,000 had been covered in taking the vehicle to Texas and Ohio' for repairs. Plaintiffs did not use the motor home for a pleasure trip during the last two years they owned the vehicle. Mr. Hartner testified that he would not have bought the vehicle had he known of the problems he was to have. Plaintiffs were more than reasonable in affording defendants opportunities to repair the vehicle, often at considerable inconvenience and expense to themselves.

Under the above circumstances, we find that the jury was clearly wrong in awarding a diminution in the purchase price. We find that the facts of this case clearly entitle plaintiffs to a rescission of the sale and the return of the purchase price.

The sale price of the motor home was $24,021.80 with other charges amounting to $345.89. Plaintiffs further proved expenses totalling $226.46, which they are likewise entitled to recover, for a total of $24,594.15.

Plaintiffs are further seeking damages and attorneys’ fees. Article 2545 of the Civil Code provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Since defendant Executive is the manufacturer of the motor home, it is presumed to be aware of the defects therein, and occupies the position of a seller who is aware of the defects and fails to disclose them, and is liable for damages and attorneys’ fees under the foregoing article. The damages sought by plaintiffs are for loss of use of the motor home and mental anguish caused by the defects in the vehicle. However, such damages are not recoverable unless the principal or exclusive object of the contract is intellectual gratification. Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). In the matter before us, this is clearly not the case. Intellectual gratification can only be an incidental cause for the contract.

Finally, plaintiffs seek an increase in the attorney’s fees of $3,500.00 awarded in the court below. Since plaintiff is an appellant who has successfully advanced his position before this court, we find that an increase of $1,000.00 will be warranted.

Accordingly, the judgment appealed from is amended, and the sale of the 1976 Diplomat II motor home, serial number 5762173, dated May 4, 1976, from Coleman Oldsmobile, Inc. to Reverend and Mrs. J.F. Hartner is rescinded; plaintiffs are to return the said vehicle to defendants, and defendants, in solido, are condemned to pay to plaintiffs the sum of $24,594.15, with legal interest from date of judicial demand until paid, plus $4,500.00 as attorney’s fees, and, as amended, the judgment is affirmed, at defendants’ cost.

AMENDED AND AFFIRMED.


author: SAVOIE, Judge.

text:
    Luke LEVRAEA v. Ruby Nell SMITH.
    No. 82 CA 0016.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Vincent J. Sotile, Talbot, Sotile, Car-mouche, Marchand & Marcello, Donaldson-ville, for plaintiff & appellee.
    Ralph Tureau, Tureau & Mire, Gonzales, for defendant & appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Ruby Nell Smith, defendant-appellant, asserts the trial court erred in determining that Luke Levraea, plaintiff-appellee, is the owner of a particular tract of land.

This is an action to quiet title to a tract of land lying between appellee’s and appellant’s property. Both parties trace their property titles to a common ancestor, Mary B. Babin. Appellant purchased her property from Babin in a sale dated August 9, 1958. In 1959, appellee’s ancestor-in-title purchased his property from Babin.

At trial, the parties stipulated this to be a petitory action to be determined upon the public record. Appellee submitted as part of the record the entire litigation in Levraea v. Boudreaux, 259 So.2d 642 (La.App. 1st Cir.1972), maintaining it was dispositive in this litigation. We note appellant was not a party to the prior litigation. Additionally, appellee contended a fence was wrongfully constructed on his land. Conversely, appellant maintained she possessed that property described in her title.

The issue presented to this court is who is the owner of a disputed tract of land. Appellant contends the trial court erred in (1) dividing the tracts of land according to the acreage description rather than according to the particular description by metes and bounds, (2) failing to find as a matter of public record that he was the owner of the disputed tract of land, and (3) failing to sustain appellant’s exception of prescription.

We reverse the finding of the trial court.

Under our jurisprudence, the order of importance for value of the various calls which may be included in a property description are: (1) natural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. Meyer v. Comegys, 147 La. 851, 86 So. 307 (1920), rehearing denied, Oct. 14, 1920; see generally McCullin v. Sumners, 401 So.2d 458 (La.App. 2nd Cir.1981), writ denied, 406 So.2d 610 (La.1981).

Appellant contends her title is described by metes and bounds, priming any property described by quantity. It is well settled in Louisiana that a sale by metes and bounds is a sale per aversionem. In a sale per aversionem, one is presumed to sell all of the land between the stated boundaries. Cheramie v. Cheramie, 380 So.2d 166 (La.App. 1st Cir.1979), affirmed on other grounds, 391 So.2d 1126 (La.1980). Appellant alludes to a claim that call-out points in a property description referring to a plat are equivalent to metes and bounds. Assuming such to be correct, appellant’s purchase would be one per aversionem. However, while our courts have dealt with both natural and artificial monuments as describing property by metes and bounds, this specific claim is res nova in Louisiana. While a logical extension might support the proposition that a plat and call-out points are equivalent to metes and bounds sufficient for a sale per aversionem, we decide this case on alternative grounds.

While neither party has used the magic words “res judicata”, such doctrine has been pled. L.S.A.-C.C. 2286 states:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” (Emphasis added).

This doctrine is stricti juris and any doubt as to identity of parties is to be resolved against such plea. See Continental Insurance Company v. Lute, 418 So.2d 43 (La.App. 3rd Cir.1982); and McKean v. Campbell, 372 So.2d 652 (La.App. 1st Cir.1979). Inasmuch as appellant was not a party to the prior litigation in Levraea v. Boudreaux, supra, a plea of res judicata cannot be sustained. Krotz Springs Oil & Mineral Water Co., Limited v. Shirk, 165 La. 1005, 116 So. 488 (1928); and Noel v. Noel, 312 So.2d 134 (La.App. 1st Cir.1975), writ denied, 314 So.2d 737 (La.1975).

Moreover, L.S.A.-C.C. 793, cited below, is dispositive of this litigation. It states:

“When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles through a common author, preference shall be given to the more ancient title.”

In this instance, both parties trace their title to a common author. As appellant’s title predates that of appellee’s, appellant is entitled to that land described in her title. Hulin v. Hale, 137 So.2d 709 (La.App. 3rd Cir.1962); and Flanagan v. Elder, 90 So.2d 540 (La.App. 2nd Cir.1957).

Additionally, as stated above, our law dictates that sales per aversionem transfer only that property within the stated boundaries. Cheramie, supra. Appellee’s property description is such a case. Assuming the best possible case, appellee’s corrected property description in 1968 cites his land as being bounded by appellant’s. As such, he has no title to land other than that described as bounded by appellant’s land.

It is also well settled in Louisiana that a vendor cannot sell what he does not own. L.S.A.-C.C. 2452. The common author’s sale in 1958 passed title and ownership of the described property to appellant. Any subsequent sale could not pass title to the same property. Therefore, appellant is owner of the disputed land.

Appellant claims title to the disputed land by acquisitive prescription based on the erection of a fence in 1976. As L.S.A.C.C. 793 is dispositive of title of ownership to the disputed land in appellant’s favor, we need not consider the issue of prescription.

For the foregoing reasons, the judgment of the trial court is reversed. Appellee is to pay all costs.

REVERSED.


author: PONDER, Judge.

text:
    Daniel D. BROUILLETTE, et al. v. CONSOLIDATED CONSTRUCTION OF FLORIDA, INC., et al.
    No. 82 CA 0022.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Patrick McGrew, Baton Rouge, for plaintiffs-appellees Daniel D. Brouillette, David F. Schnebelen, and Fast Foods of Baton Rouge No. 2.

      Ronald G. Coleman, Walton J. Barnes, Baton Rouge, for defendant-appellant Consolidated Const. Co. of Florida, Inc.
    Ray Dawson, Baton Rouge, for defendant-appellant Auto Owners Ins. Co.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant appealed from the judgment granting plaintiffs a preliminary injunction prohibiting defendant from executing on a judgment and awarding attorney’s fees for the wrongful issuance of a writ of fieri facias.

Appellant listed six specifications of error, five of which dealt with the issuance of the preliminary injunction and one with the award of attorney’s fees.

We dismiss as moot the appeal in part and affirm the remainder.

Daniel D. Brouillette and David F. Sehne-belen sued Consolidated Construction and its insurer for damages resulting from alleged breaches of three construction contracts. Defendant Consolidated reconvened against plaintiffs for the balance due on the contracts. Judgment was rendered by the trial court on June 8, 1981, awarding plaintiffs a sum of money on the main demand and also awarding defendant a lesser amount on its reconventional demand. On June 23, 1981, defendant filed a motion for a suspensive appeal and posted bond. On September 25, 1981, defendant filed a writ of fieri facias and petition for garnishment to execute on the judgment in its favor. Plaintiffs then filed a motion for a temporary restraining order and other injunctive relief on October 22,1981, alleging that the writ of fieri facias had wrongfully issued because the delays for a suspensive appeal had not run and because of the effects of compensation. The temporary restraining order was granted that date. On October 27, 1981, defendant filed a motion to dissolve the order together with exceptions regarding subject matter jurisdiction, prematurity and improper use of summary proceedings. On October 29, 1981, plaintiffs filed an answer to the defendant’s appeal and a motion for setting of suspensive appeal bond. A hearing was held that date and the preliminary injunction was granted and the exceptions denied. The trial judge determined that the writ of fieri facias wrongfully issued because plaintiffs’ answer to defendant’s appeal extended the delays for their own suspensive appeal. He did not determine the issue of compensation. Plaintiffs were also awarded $250.00 in attorney’s fees for the wrongful issuance of the writ.

The issue of the propriety of the preliminary injunction is moot. The Supreme Court on September 7, 1982, on Consolidated’s application for writs of certiorari or review, proceeding No. 82-C-145, issued the following order: “Granted. Injunction against execution of judgment is ordered dismissed.”

This court decided on a motion to dismiss that the answer to the appeal filed after elapse of the time for a suspensive appeal did not constitute a suspensive appeal. On the merits this court decided that compensation took effect by operation of the law, extinguishing the amount awarded to defendant. The writ of fieri facias was therefore wrongfully issued because of this compensation, not because of any suspen-sive effect of the answer to the appeal.

Attorney’s fees are an element of damage for the wrongful issuance of a writ of fieri facias. The trial court’s award of $250.00 does not amount to manifest error.

For the above reasons, insofar as it involved the preliminary injunction, defendant’s appeal is dismissed as being moot, and the remaining portion is affirmed. The costs of this appeal are to be paid by the defendant.

APPEAL DISMISSED IN PART AND AFFIRMED IN PART.

      . The last paragraph of LSA-C.C.P. Art. 2298 provides:
      “In the event injunctive relief is granted to the judgment debtor or third party claiming ownership of the seized property, if the court finds the seizure to be wrongful, it may allow damages. Attorney’s fees for the services rendered in connection with the injunction may be included as an element of the damages.”


text:
    Deanne Vice, Wife of Maurice BENOIT v. Maurice BENOIT.
    No. 82 CA 0034.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Russell J. Schonekas, New Orleans, for plaintiff and appellee.
    Stanwood R. Duval Jr., Houma, for defendant and appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant, Maurice Benoit, appealed from the judgment that maintained the alimony awarded to plaintiff, Deanne Vice Benoit, at $250.00 per week.

The issues are the propriety of alimony at all, and if awarded, the amount.

When plaintiff and defendant were separated in 1977, the court ordered defendant to pay $350.00 per week alimony and child support, in addition to paying the monthly installment of $350.00 on the family home. In 1978, the amount of support was reduced by $50.00 per week when one child became a major.

On March 31,1981, defendant filed a rule to terminate alimony and child support. In the interim between the separation in 1977 and the filing of the rule, defendant had secured a divorce in Arkansas. Also, by the latter date, the remaining child had reached majority. Because plaintiff’s counsel was engaged in lengthy litigation, the hearing set for May 1, 1981, was continued, but defendant stopped making any payments. In August, plaintiff filed a rule for accumulation of past due alimony, for contempt and for attorney’s fees. After a consolidated trial of the rules, the court terminated the child support, gave alimony of $250.00 per week, and made accrued payments of $7,000.00 executory. The request for attorney’s fees was denied and appellee did not appeal or answer the appeal.

The Code article governing alimony after divorce reads as follows:

Art. 160. Alimony after divorce
Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouse; the liquidity of such assets; the financial obligations of the spouses; including their earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.

The guidelines, added by amendment in 1979, constitute partially the codification of some of the jurisprudence, and, we believe, partially a change in policy from prior jurisprudence. We must therefore be careful in depending upon some of that prior jurisprudence. No one of the guidelines is made conclusive as to entitlement or amount. Even before the amendments, however, alimony under that article was regarded as a gratuity in the nature of a pension. Frederic v. Frederic, 302 So.2d 903 (La.1974).

However, an award of alimony will not be disturbed absent a clear abuse of discretion. Tracy v. Tracy, 388 So.2d 66 (La.App. 1st Cir.1980).

We agree that the former Mrs. Be-noit has borne the burden of proof for the continuing of alimony.

We have examined all items allowed and the amounts thereof and can point to no clear abuse of discretion. The' court examined all items, disallowed some and reduced others. The question of capacity to earn was considered.

For these reasons, the judgment is affirmed and the costs are assessed against the appellant.

AFFIRMED.


text:
    Leo V. LeSAGE, et ux. v. ELLERBEE BUILDERS, INC.
    No. 82 CA 0048.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Jack N. Dyer, Sr., Baton Rouge, for plaintiffs-appellants Leo V. LeSage and Sybil G. LeSage.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellee Ellerbee Builders, Inc.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiffs, Leo V. LeSage, et ux, appeal the trial court’s granting of a motion for a summary judgment in favor of defendant, Ellerbee Builders, Inc. We affirm.

In April, 1976, LeSage sold a portion of a 30-acre tract to Ellerbee. LeSage asserts the terminology of the “Cash Sale” contains a reservation of the mineral rights.

L.S.A.-R.S. 31:15 provides that a landowner may create mineral rights by reservation. Such rights must be expressly reserved. Roemer, II v. Caplis, 369 So.2d 1186 (La.App. 2d Cir.1979), writ denied, 371 So.2d 620 (La.1979).

The “Cash Sale” in question contains the following language:

“... said tract being ... subject to a mineral lease of record.”

The issue presented is whether the words “subject to a mineral lease” is an express reservation of the mineral rights in favor of the vendors.

The “Cash Sale” excepts from the bundle of rights passed in the conveyance, a mineral lease of record. A mineral lease grants to the lessee the right to explore for and produce minerals. L.S.A.-R.S. 31:114. Properly perceived, the instant sale is subject to a lease of record in favor of Thomas Kilgore. Only those rights extant under said lease were not conveyed.

LeSage contends further that L.S. A.-R.S. 31:154 is dispositive in this case.

L.S.A.-R.S. 31:154 reads as follows:

“One who establishes corporeal possession of land as owner under an act translative of title is in possession of the rights in minerals inherent in perfect ownership of land except to the extent mineral rights are reserved in the act or the act is expressly made subject to outstanding mineral rights. This Article does not apply to a mineral lessee of the possessor or any of his ancestors.”

This statute contemplates possession of land to which one does not have clear title. It falls under Chapter 9 of the Mineral Code dealing with possession and acquisitive prescription. It is clearly inapplicable in this instance.

For the foregoing reasons, the trial court is affirmed. Leo LeSage, et ux, appellants, are to pay all costs.

AFFIRMED.


author: LOTTINGER, Judge. COLE, J.,

text:
    Kuumba Nakazia SCOTT and Dorothy Scott, as Dative Tutrix v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 82 CA 0059.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

    Richard Bouterie, Jr., of Deramee & Der-amee, David L. Landry, Thibodaux, for plaintiff-appellee Kuumba Nakazia Scott, etc.
    Frank A. Betanski, Jr., Warren D. Ponder, Dept, of Transp. and Development, William J. Doran, Jr., Baton Rouge, for defendant-appellant State of Louisiana, Dept, of Transp.
    Before LOTTINGER, COLE and CARTER, JJ.

       COLE, J., would grant a rehearing on the issue of quantum.

   LOTTINGER, Judge.

This is a wrongful death and survival action brought by the dative tutrix of the minor Kuumba Nakazia Scott against the State of Louisiana, through the Department of Transportation and Development, for the death of Kuumba’s mother, Ms. Charlene Scott. From a judgment in favor of plaintiff, defendant has appealed.

The trial judge assigned excellent written reasons for judgment which we adopt as our own:

“This case deals with a one car accident in which Charlene A. Scott, mother of the infant Kuumba Nakazia Scott, was killed when her automobile left Hwy. 308 in Lafourche Parish just north of the City of Thibodaux and went out of control landing upside down in a large, deep drainage canal where it entered Bayou Lafourche. The vehicle landed in an inverted position with only the wheels protruding from the water and Charlene A. Scott died from drowning. The physical conditions which existed at the time of the accident on April 18,1978, are uncon-tradicted. Hwy. 308 at the point of the accident was a two way, blacktop road with two lanes of ten feet each. The road curved slightly to the left for southbound traffic, but the curve was so gradual as to be almost imperceptible and what little shoulder there was was from four to six inches lower than the road surface at the point where the vehicle first left the road. All evidence, including the testimony of an eye witness, indicated that Ms. Scott was traveling at approximately the legal speed of the area, 55 M.P.H., driving a Dodge Omni, that the right side of the ear dropped off onto the shoulder, apparently bounced back onto the roadway almost immediately (after traveling an estimated distance of fifteen feet, which would have taken approximately one second at 55 M.P.H.) and then again left the highway in a diagonal direction cresting a slight rise on the edge of the drainage canal, traveling through the air to the opposite bank where it struck and then rolled into the water where Ms. Scott drowned. The evidence does not show as stated on page 6 of defendant’s post trial memo that ‘Ms. Scott knew of the allegedly hazardous shoulder, and attempted to correct the path of her vehicle, and that therefore, this accident actually happened due to the fact that Ms. Scott oversteered her vehicle, causing her to lose control.’ On the contrary, all of the evidence and testimony clearly indicates that when' this small, frontwheel drive car inadvertently left the roadway that she lost control as her car struck the deep rut on the side of the highway and that her actions contributed nothing to her demise. This Court considers that the case of Rue v. State of Louisiana, 372 So.2d 1197 [(La.)], and 376 So.2d 525 [(La.App.)], is controlling and that as the Supreme Court therein stated:
‘a motorist who inadvertently drove off a highway and onto its shoulder and who lost control of her vehicle upon striking an admittedly dangerous rut in the shoulder was not barred from recovery for her injuries by her negligence in leaving the paved surfaces.’
There was absolutely no evidence presented which could lead the Court to conclude that Ms. Scott in any way contributed to the accident which resulted in her demise other than inadvertently leaving a narrow roadway which of itself has been determined by the Supreme Court not to be such negligence as would bar recovery.
“We turn now to the damages to which the plaintiff is entitled. Kuumba Naka-zia Scott was born to Charlene A. Scott on November 17, 1978, five months prior to the death of his mother. While he may have been illegitimate, the evidence presented at the trial through the testimony of Dorothy Scott, the mother of Charlene Scott, indicates that there was a very close loving relationship between the infant and his mother and that she cared and supported him from his birth until the time of her death.
“The only testimony concerning the value of the loss of support for the infant was the testimony of Dr. Seymore Goodman, who was stipulated by counsel as an expert in the field of economics. His estimate is based on a study made by the Department of Agriculture which he considered the most official study for use in this kind of analysis. He selected as his category from this study a low cost budget in rural south in a low income family of one child with one parent. Based on the projection of the cost of the separate elements that go into the support of the child, i.e. food, clothing, housing, etc., and on an average rise in the cost of living over the previous eighteen years, he estimated a past loss of $5,033.33 and a future loss discounted at 7% of $39,197.10, for a total of $44,230.43. In his expertise, however, he felt that using the last eighteen years was unrealistic and that using just the last five years would be a more accurate way of arriving at a figure for this loss of support. On this basis, which the Court also believes is more realistic and accurate, he derived a total loss of support at $67,931.73 after applying the discount. Additionally, he estimated the value of child care services, of which the infant was deprived by the death of his mother, to be $3,233.79 to the time of trial and the discounted value of the future loss of household services at $21,-007.52, for a total of $24,241.31. This figure for the value of child care services coupled with the figure for the loss of support of $67,931.73 makes a total loss of $92,173.04. Inasmuch as the Court agrees that the five year average was more realistic than the eighteen average because of the tremendous change in economic conditions over the past decade and the mathematics of this stipulated expert are the only figures which were presented to the Court, any other lesser or greater award on the part of the Court would be pure speculation and this the Court is not permitted to do.
“Turning now to the loss of love and affection, grief and mental anguish suffered by the child, the amount to which he is entitled is more difficult to determine. Dr. Marsha Redden, a clinical psychologist, also stipulated as an expert by counsel, whose testimony was uncontra-dicted by any expert on behalf of defendant, testified that children need two parents and that when they have only one, the loss of that single parent is a greater loss which causes depression and anxiety in the child and increases rather than decreases as the child gets older. Since the child was only five months at the time of the single parent’s death, he will be deprived of that parental love for almost the entire period of his minority, and a figure of $100,000.00 for such a loss would seem to be reasonable and within the discretion of the Court.
“Insofar as the amount sought for the pain and suffering of the deceased, the Court must conclude from the evidence, again uncontradicted and unrefuted, that the deceased Charlene Scott was not rendered unconscious by the accident and though bruised and cut from it, she was conscious when her vehicle overturned in the water in which she died. Dr. John Heindingsfelder, an assistant coronor accepted as an expert in the field of pathology, testified that since there was no evidence to indicate that she had been knocked unconscious, she probably experienced up to two minutes of consciousness and then two to three minutes of inhaling water and then death. The two minutes of conscious awareness of the imminence of her death by drowning and the bruises and lacerations sustained would in this Court’s opinion support an award of $15,-000.00 for pain and suffering.
“And finally the plaintiff seeks to recover for the expenses caused by the death. Plaintiff and defendant entered into a joint stipulation that the amount of special damages caused by the death, i.e. the funeral expenses, ambulance charge and hospital charge, amounted to $3,242.25 and plaintiff, Dorothy Scott, is entitled to recover this sum. There will, therefore, be judgment in favor of the plaintiffs in the total amount of $210,415.29.”

SPECIFICATIONS OF ERROR

Defendant-appellant contends the trial court erred (1) in its conclusion that the highway condition constituted a defect to drivers exercising ordinary care and reasonable prudence, (2) in failing to find Ms. Charlene Scott guilty of contributory negligence, (3) in awarding damages for wrongful death under La.Civ.Code art. 2317 since that article makes no provision for recovery in the event of wrongful death, and (4) in awarding an excessive amount of damages.

I

After a thorough and exhaustive review of the record we find no merit in specifications of error 1, 2 and 4. The case sub judice is factually distinguishable from Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). For a case very similar see LeBlanc v. State of Louisiana and the Department of Highways, 419 So.2d 853 (La.1982).

II

In specification of error number 3 appellant argues that if the trial court based its decision on La.Civ.Code art. 2317, and if this court finds Article 2317 applicable here, then plaintiff cannot recover for wrongful death because no wrongful death action is found in Article 2317.

Appellant’s argument is novel, but not persuasive.

We are of the opinion that the trial judge did not use La.Civ.Code art. 2317 in reaching his decision, and neither does this court in affirming. But even conceding for the sake of argument that Article 2317 had been used, all Article 2317 really does is eliminate the proof of knowledge on the part of the defendant that a vice existed in the thing that the-defendant owned or had garde over. Kent v. Gulf States Utilities Company, 418 So.2d 493 (1982). Article 2317 is merely a classification of fault under Article 2315, the same as Article 2316-negli-gence. Since wrongful death actions are authorized by Article 2315, then it follows that they must also be authorized in an Article 2317 situation.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at defendant-appellant’s costs. The costs are in the amount of $2,403.15 dollars.

AFFIRMED.

COLE, J.,

concurs in the assessment of liability but dissents as regards affirmance of quantum, believing the award to constitute an abuse of discretion.


author: COVINGTON, Judge.

text:
    Paul W. TINSLEY v. Irl D. (Cote) ANDREPONT, Jr.
    No. 82 CA 0089.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      James Farrier, Baton Rouge, for plaintiff-appellee Paul W. Tinsley.
    Fred H. Belcher, Jr., Baton Rouge, for defendant-appellant Irl D. Andrepont, Jr.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This appeal arose out of an alleged breach of a partnership agreement between Paul W. Tinsley and Irl D. (Cote) Andre-pont, Jr. The trial judge ruled in favor of the plaintiff, Paul Tinsley, and against the defendant, Cote Andrepont, in the sum of $21,032.11, with legal interest and costs, on the ground that defendant failed to account and divide the net profits of this partnership venture. The defendant appeals, alleging that the trial court erred by failing to credit him with horses that were returned to the plaintiff, and by failing to credit him with his share of the profits realized in the sale of one horse. We amend, and as amended, affirm.

The partnership formed between these parties was for the purpose of buying, developing and selling registered quarterhors-es for a profit. An agreement was drawn up which provided that all of the capital used to purchase horses would be provided by plaintiff; that sale proceeds would be equally divided after plaintiffs initial investment was returned; that defendant would be responsible for the physical care, maintenance, etc., of the horses and that all direct cash expenditures would be assumed in equal shares by each partner. Under this agreement, the partnership bought and sold eleven horses. This suit arose out of a dispute between the partners over profits and expenses.

Defendant assigns error to the finding of the trial judge that he failed to prove the return of two partnership horses, Watcher Man’s Girl and Next Copy, to plaintiff as a return of his capital. In his written reasons for judgment, the trial judge found that plaintiff denied receiving these horses, and for this reason disallowed this offset to defendant. The plaintiff, however, during trial admitted on cross-examination that “Yes, I picked up Watcher Man’s Girl and Next Copy.” Consequently, we find that the return of these horses to Tinsley was proven, and that a $6,500.00 return of capital investment was made to plaintiff; thus, we offset this amount against the judgment rendered below.

Another dispute which arose between the partners was whether Mito Commander was a partnership horse or was owned individually by plaintiff. The trial court found Mito Commander belonged to the partnership. We agree. On appeal defendant claims he is entitled to one-half of the profit from the sale of Mito Commander. The record shows that the horse was sold for $40,000.00. The sum of $12,000.00 was received by plaintiff as return of capital investment. The remaining $28,000.00 realized on the sale of this horse has been retained by Tinsley. Since the partnership agreement provides for an equal division of net profits, we find that Andrepont is entitled to receive one-half of the profit, $14,-000.00.

Defendant further alleges that he is entitled to a return of capital to Tinsley for the sale price of Pacific Pinewood, a partnership horse. The trial court found that defendant failed to carry his burden of proof and denied such offset to defendant. We affirm. The record fully substantiates the trial court’s finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the above and foregoing reasons, the judgment rendered in the trial court against defendant in favor of plaintiff for the sum of $21,032.11, with legal interest there on from the date of judicial demand until paid, is reduced by $20,500.00, the amount credited to defendant for the return of two partnership horses and for the profit derived from the sale of a partnership horse, to the amount of $532.11, with the costs of these proceedings divided equally between the plaintiff and defendant.

AMENDED, AND AS AMENDED, AFFIRMED.


text:
    FIRST GUARANTY BANK v. Jackson W. RATCLIFF.
    No. 82 CA 0092.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Thomas Matheny, Hammond, for plaintiff-appellant.
    Robert Morrison, Denham Springs, for defendant-appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

First Guaranty Bank (plaintiff) brought this deficiency judgment action against Jackson W. Ratcliff (defendant), following a foreclosure by executory process. Defendant answered and contended that the executory proceeding was defective in numerous ways. His primary argument was that the original order granting executory process was improper because all of the required authentic evidence was not submitted along with the petition. In disposing of this case, the trial court held:

“Court is of the opinion that because of irregularities in the executory proceedings, more particularly the erroneous mortgage certificate and more specifically, the improper listing of the plaintiffs mortgage as a superior mortgage, the irregularities in the appraisal, and more specifically the absence of administering an oath to the appraisal, and the manner in which they were appointed, there will be judgment in favor of the defendant, rejecting the [plaintiff’s] demand at plaintiff’s costs.”

Plaintiff argues on appeal that the trial judge erred in finding irregularities sufficient to prevent it from recovering a deficiency judgment. Initially, we note that there was no authentic act or certified copy of mortgage attached to the original petition for executory process.

Executory proceedings are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment. La. CCP art. 2631. Executo-ry process is an accelerated procedure which is summary in nature. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir.1976).

Executory process is a harsh remedy, and can only be used in instances where it is specifically permitted by law. When it is permitted, the party using it must strictly comply with the letter of the law governing this remedy. Cameron Brown South, Inc. v. East Glen Oaks, supra.

For executory process to issue, certain formalities must be complied with. The plaintiff must submit with his petition the authentic evidence necessary to establish his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of (1) the instrument evidencing the obligation, (2) the act of mortgage or privilege on immovable property importing a confession of judgment, (3) the act of mortgage or privilege on movable property importing a confession of judgment whether by authentic act or by private signature duly acknowledged; (4) any other instruments necessary to complete proof of the plaintiff’s right to use executory process. La.CCP arts. 2634, 2635. La.CCP art. 2636 designates what kind of documentary evidence shall be deemed authentic for purposes of executory process.

Executory process is a proceeding in rem and does not seek a personal judgment against the debtor. In certain instances, however, a deficiency judgment may be obtained against the debtor if the judicial sale does not satisfy the debt. La.CCP art. 2771, La.R.S. 13:4106, 4107. A suit for a deficiency judgment is an ordinary proceeding. La.CCP art. 2772.

If the strict rules for executory process have not been complied with or if the property has been sold without appraisal, a deficiency judgment may not be maintained. La.CCP art. 2771, R.S. 13:4106, 4107. In League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968), the Louisiana Supreme Court held that the executory proceeding was null due to the lack of authentic evidence, and that the subsequent deficiency judgment was null and void. The court further stated that the debtor’s failure to either enjoin the sale or to have the writ of seizure and sale dissolved did not estop the debtor from defending the deficiency judgment suit on the grounds that the formalities of executo-ry process had not been met.

R.S. 13:4112 provides that once the sale has been filed in the conveyance records of the parish or the proces verbal has been filed, the judicial sale of immovable property by executory process may not be set aside because of any objection to form or procedure or by reason of lack of authentic evidence. However, the statute further states:

“Nothing herein shall be construed to affect legal defenses otherwise available to any person against whom a deficiency judgment is sought after the public sale of immovable property through executory proceedings.”

In the present case, the executory proceedings themselves were fundamentally defective. The record is totally devoid of an authentic act of mortgage importing a confession of judgment. Neither does a certified copy or a duplicate original of the authentic act of mortgage appear in the record. The jurisprudence clearly holds that the failure of a party to provide the necessary authentic evidence in his petition for executory process precludes that party from later instituting an action for a deficiency judgment. League Central Credit Union v. Montgomery, supra; Cameron Brown South, Inc. v. East Glen Oaks, supra.

Because no authentic act of mortgage was attached to the petition for execu-tory process, no deficiency judgment can be maintained. It is unnecessary to address the other assignments of error.

The judgment of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.

      . Plaintiff conceded during oral argument before this court that no authentic act of mortgage or certified copy was in the record.

      . Act 259 of the Louisiana 1982 Session amended CCP art. 2635.

      . Act 185 of the Louisiana 1982 Session amended CCP art. 2636. It provides, in pertinent part:
      “The following documentary evidence shall be deemed to be authentic for purposes of executory process:

      “(2) A certified copy or a duplicate original of an authentic act.”


author: EDWARDS, Judge.

text:
    John D. DICKERSON v. James TAYLOR, et al.
    No. 82-CA-0098.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Writ Denied March 4, 1983.

      Charles B.W. Palmer, Amite, for plaintiff-appellant.
    Tom Matheny, Alton Lewis, Hammond, for defendants.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This action arises in the context of a prior workman’s compensation award to John D. Dickerson, against James Taylor, et al. This present litigation involves a rule filed by Dickerson to compel Taylor to provide a home therapy program to plaintiff and to produce the depositions of Jack O’Neil and Dr. Alvin Stander. Dickerson also sought civil penalties and attorney fees under R.S. 23:1125, 1201.2, in connection with both demands.

The trial court denied plaintiff’s rule. The judge held that depositions were not within the meaning of R.S. 23:1125 which requires employers to furnish medical reports to employees upon written demand. Additionally, the. court ruled that the depositions failed to establish a prescription for home therapy; thus the defendants did not deny plaintiff any necessary treatment under R.S. 23:1203.

On appeal, Dickerson alleges error by the trial court in its construction of R.S. 23:1125 and interpretation of the depositions. We affirm.

BACKGROUND FACTS

In June, 1976, Dickerson suffered an injury while working for Taylor which subsequently resulted in a workman’s compensation award against defendants in October, 1978. Dickerson commenced physical therapy treatments in May, 1979, on an in-clinic basis with Jack O’Neil in Hammond. The defendants, planning to seek a reduction in Dickerson’s disability judgment, took the depositions of Mr. O’Neil, therapist, and Dr. Stander, the treating orthopedist, in September, 1980. Dickerson’s attorney was present at both depositions.

DEPOSITIONS AND R.S. 23:1125

Dickerson filed a rule to compel production of both depositions from defendants under R.S. 23:1125. This statute provides that when an employee submits to any type of medical examination by a professional medical or paramedical examiner at the employer’s request, the written report of the examination must be furnished without cost to the employee within thirty days of demand.. The language of section 1125 clearly does not cover depositions. We, therefore, find no error in the trial court’s conclusion that depositions are not medical reports within the meaning of R.S. 23:1125.

HOME THERAPY

Dickerson alleged that the depositions, particularly Mr. O’Neil’s, recommended home therapy in place of the in-clinic therapy. Thus, plaintiff asserts, the defendant’s failure to provide home therapy equipment violated R.S. 23:1203. This statute provides that the employer “shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal.”

However, the trial court held that the depositions merely discussed a home therapy program as a possible replacement for in-clinic therapy should the latter be terminated. Our review of the depositions reveals no error by the trial judge in his interpretation. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Mr. O’Neil even stated that a re-examination of Dickerson was appropriate to determine the proper course of therapy. Thus, Dickerson has failed to show in these depositions a recommendation or prescription of home therapy that the defendants would have been bound to honor. No violation of R.S. 23:1203 occurred.

MOTION TO STRIKE

After this appeal was granted by the trial court, the defendants filed in this court a motion to strike from the record certain documents and exhibits. However, assuming arguendo, that the documents and exhibits are properly in the record, their presence does not affect our affirmance of the lower court’s judgment. Therefore, we will not address this motion.

DECREE

Based on the foregoing reasons, we affirm the trial court’s dismissal of plaintiff’s rule. Costs of this appeal are to be assessed against plaintiff.

AFFIRMED.