author: STOKER, Judge. PER CURIAM:

text:
    Ralph E. PAYNE et ux., Plaintiffs-Appellants, v. Dewey TRICHEL, et al., Defendants-Appellees.
    No. 8016.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiffs-appellants.
    Michael Henry, Gahagan & Gahagan, Marvin F. Gahagan, Whitehead & McCoy, Kenneth D. McCoy, Jr., Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is an action in redhibition involving residential construction. Plaintiffs-appellants sued the vendors, the mortgagee and the real estate broker who brought the buyer and seller together. Each defendant filed an exception of prescription of one year. The trial judge sustained the exceptions and dismissed plaintiffs’ suit.

The issue in this case is whether appellants are saved from the effect of the one year prescription applicable to redhibition on the ground that they did not learn the cause of the cracking of the floor and other parts of the house until less than one year from the time that they filed suit.

As stated in their brief, appellants’ position is as follows:

“As indicated by the pleadings, on July 1, 1977 Mr. and Mrs. Ralph L. Payne purchased from defendants, Dewey Trichel and his wife, the vendors’ family home located in Natchitoches, Louisiana. Mr. Payne was then and still remains employed by Alcorn University in Mississippi, although his domicile remains in Natchitoches, and because of his rare visits to Natchitoches, most of the preliminary transactions and subsequent care of the home were left to his father, Mr. L. A. Payne, Sr.
“The purchasers knew of no serious vices or defects in the home at the time of the purchase thereof. The vendors were, consistent with the purchase agreement, allowed to continue the occupancy of that home until mid-February of 1978, at which time they moved out and surrendered possession thereof. Soon thereafter, Mr. L. A. Payne, Sr. began looking after the premises, cutting the grass, and in August or September of 1978 he suddenly discovered “pronounced” cracks occurring in the foundation and masonry work of the home. At that time he also observed that the brick chimney was “pulling away” from the house. Immediately thereafter, Mr. Payne engaged a Mr. C. J. Causey, Louisiana Soil Stablization, Inc., of Bossier City, Louisiana, who traveled to Natchitoches and made a study which revealed that a grossly inadequate home foundation existed and on September 25, 1978 Mr. Payne signed a contract with Mr. Causey to complete certain home foundation stablization procedure at a cost of some $4,900.00.
“The trial evidence indicates that it was not until the completion of this study by Mr. Causey in September of 1978 that the purchasers became aware of the cause of the rather sudden masonry cracking and the chimney pulling away from the house. At that time Mr. Payne discussed the matter with First Federal Savings and Loan Association, the mortgagee (November 1978), and it was a result of that discussion that purchasers retained legal counsel to assist them in the resolution of the problem.
“The instant suit was filed on May 30, 1979 — more than one year subsequent, to purchase, but less than one year follow-, ing discovery.
“Defendants, who included the vendors, mortgagee, and real estate broker of vendors, all filed pleas of prescription. Following hearing thereof, the prescriptive pleas were sustained by the trial court, resulting in this appeal.”

At the trial of the case neither of the plaintiffs-appellants testified. Mr. L. A. Payne, the father of Ralph L. Payne, testified for plaintiffs-appellants. The testimony establishes that the defects complained of were pointed out by Mr. Trichel to Ralph L. Payne and his father on April 10, 1977, prior to the purchase of the home by plaintiffs-appellants.

Appellants place reliance on the case of Hill v. John L. Crosby, Inc., 353 So.2d 421 (La.App. 4th Cir. 1977). The plaintiff in the Hill case noticed severe mildewing and rotten boards more than one year before suit was filed. The Court of Appeal for the Fourth Circuit held that because the plaintiff did not discover the cause of the mildew until within one year of filing suit prescription had not run. Applying this authority to this case appellants contend prescription did not begin to run until discovery of tbe inadequate foundation was made by Louisiana Soil Stablization, Inc. We recently had this contention under consideration in Lee v. Equitable Life Assurance Soc. of U. S., 391 So.2d 37 (La.App. 3rd Cir. 1980).

In the Lee case we disagreed with the holding of the Fourth Circuit in the Hill case. The Lee case also involved residential construction. Plaintiff there first discovered water seeping into a den after heavy rains. Not until sometime later did plaintiff discover the underlying cause of the defect. The source of the seepage was a “spring”. The house was constructed adjacent to the spring and water from the spring would flow against the house whenever a substantial rain occurred. We held that discovery of the seepage was such notice as would trigger the running of the prescriptive period applicable to redhibitory actions. For the same reasons we gave in Lee, prescription of the action in redhibition against the sellers began to run against the Paynes on the date of their purchase, because they were already aware of serious cracking in various parts of the house purchased from the Trichels.

The plaintiffs seek to avoid the consequences of the articles of the Civil Code establishing a one year prescription either from the date of sale or date of discovery of the defect through reliance on the case of Kearney v. Maloney, 296 So.2d 865 (La.App. 4th Cir. 1974). That case involved an action in redhibition concerning a home that Malo-ney sold to William L. Kearney and his wife. The Kearneys alleged that after they moved into the house they learned that the foundation and supports had been irreparably damaged, that they were not made aware of these defects and that the seller had made repairs only to those parts of the house which were visible and readily in-spectable. In Kearney the Court of Appeal held that the prescription of one year provided by LSA-C.C art. 2534 did not apply. The cause of action was treated as an action for nullity rather than redhibition. The action was characterized as one involving fraud as contemplated by redhibition article 2547. The court held that LSA-C.C. art. 3542 provides that in actions for nullity or rescission of contracts induced by fraud the prescriptive period is five years.

Louisiana Civil Code redhibition articles 2534, 2545, 2546 and 2547 provide in pertinent part as follows:

“Art. 2534. Prescription of redhibitory action; exception and suspension. The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser. * * * * * *
“Art. 2545. Liability of seller for concealment of vice. 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. (Amended by Acts 1968, No. 84, § 1.) “Art. 2546. Prescription of redhibitory action when seller in bad faith. In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
This discovery is not to be presumed; it must be proved by the seller.
“Art. 2547. Fraud on the part of the seller; rights of the buyer. A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
“It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer. (Amended by Acts 1968, No. 84, § 1.)”

We need not consider the correctness of the holding in Kearney. The rationale of that case rests upon the provision in Article 2547 that misrepresentation by a seller that a thing possesses a quality it does not possess “comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject .. . The petition in the instant case does not allege fraud and the evidence does not establish misrepresentation by the seller. In Kearney plaintiffs alleged actual concealment of irreparable defects. The Court of Appeal for the Fourth Circuit treated this as an allegation of fraud.

In the instant case the trial court sustained the exceptions of prescription filed by the real estate broker and the lending institution. Neither was a seller. Hence, the exception of prescription of one year under the redhibition article, LSA-C.C. art. 2534, was not available to them. Kearney v. Maloney, supra, on limited rehearing, and Williams v. Lucien J. Caruso, Inc., 374 So.2d 113 (La.App. 4th Cir. 1979). The allegations of the Payne’s petition pertinent to Cele Cook and First Federal Savings and Loan Association are contained in paragraphs 6 through 10 which read as follows:

“6.
“Petitioners show that they arranged for First Federal Savings & Loan Association of Natchitoches to Appraise, inspect, and finance the purchase thereof.
7.
“Consistent with the above, First Federal Savings & Loan Association did cause home to be examined, inspected, and appraised, as more fully shown by a copy of said appraisal attached hereto and made a part hereof.
8.
“Consistent with the above, petitioners borrowed from First Federal Savings & Loan Association the sum of $30,000.00, as more fully shown by a copy of the loan settlement attached hereto and made a. part hereof, together with a true copy of said mortgage also attached hereto and made a part hereof.
9.
“Cele Cook, d/b/a Cook Realty Company, was at all pertinent times herein acting as the real estate agent for plaintiffs herein, as more fully shown by said agreement attached hereto and made a part hereof.
10.
“Petitioners show that defendants, First Federal Savings & Loan Association, Cele Cook, d/b/a Cook Realty Company, possessed such expertise relative hereto that each knew or should have known of the vices and defects; that said defendants were obligated to advise petitioners thereof, the failure of which constitutes a breach of duty owed.”

The most that can be said for plaintiffs’ pleadings is that paragraph 10 of the petition may set forth an action in tort against the broker and lending institution. After the plaintiffs’ appealed to this court the real estate broker, Cele Cook, availed herself of LSA-C.C.P. art. 2163 and filed an additional exception of prescription in this Court of Appeal. In this exception Cele Cook broadened her exception to plead prescription “by passage of one year under the provisions, inter alia, of Louisiana Civil Code article 3536.” This article provides a one year prescription period for tort actions. The evidence supports an exception of prescription on these grounds. Therefore, we sustain the exception filed by Cele Cook.

First Federal Savings and Loan Association relied on LSA-C.C. art. 2534 specifically. It did not plead prescription under LSA-C.C. art. 3536. We cannot supply the exception of prescription as to any tort action. LSA-C.C.P. art. 927. Under the circumstances we are of the opinion that First Federal cannot rely on the prescription of one year for a tort action, LSA-C.C. art. 3536. We entertain some doubt as to whether in a case of this nature a cause of action exists in favor of a buyer against a lending institution. However, the matter has not been argued before us and we pre-termit any consideration of the question at this time.

For the foregoing reasons we affirm the judgment of the trial court insofar as it sustains the exception of prescription filed by Dewey Trichel and Mary Eretta Trichel and by Cele Cook, doing business as Cook Realty; we reverse the judgment of the trial court insofar as it sustains the exception of prescription filed by First Federal Savings and Loan Association of Natchi-toches, Louisiana and the exception is hereby overruled; this case is remanded to the trial court for further proceedings consistent herewith. The costs of this appeal shall be assessed to plaintiffs-appellants.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

On Applications for Rehearing

PER CURIAM:

The rehearing applied for in this case by defendant-appellee, First Federal Savings and Loan Association, Natchitoches, Louisiana, is denied.

In the alternative to the application for rehearing, First Federal Savings and Loan Association attached to its application an exception of prescription of one year to any tort action plaintiffs may have on the basis of LSA-C.C. art. 3536. It is suggested that this plea of prescription may be filed at any stage of the proceedings in this court. As a general proposition this is true as provided in LSA-C.C.P. art. 2163. However, the article provides that such exceptions (confined to peremptory exceptions) may be filed for the first time in a court of appeal and may be considered “if pleaded prior to a submission of the case for a decision .. . ”. As the exception of prescription in question was filed after the case was submitted to us for a decision, we may not consider it. Ware v. Wilson, 283 So.2d 813 (La.App.2d Cir. 1973), writ denied, 284 So.2d 774 (La.1973).

Our action is without prejudice to the right of the applicant to file the same exception in the trial court after the matter has been remanded in accordance with our decision on original hearing.

      . Plaintiffs-appellants set forth their demands in their First Supplemental and Amending Petition as follows:
      “A. (1) a recission of the sale and return of the purchase price:
      (2) payment to petitioners of the sum of Four Thousand, Nine Hundred and No/100 ($4,900.00) Dollars, which they have expended in an effort to prevent the house from literally falling down;
      (3) cancellation of the mortgage note to First Federal Savings and Loan Association and return of all interest paid;
      (4) recovery of all realtor’s fees paid to Mrs. Cele Cook, d/b/a Cook Realty;
      (5) attorney fees in the sum of Seven Thousand, Five Hundred and No/100 ($7,500.00) Dollars; and
      (6) damages, including mental anguish, time lost, loss of use of house and otherwise, in the sum of Ten Thousand and No/100 ($10,-000.00) Dollars.
      “B. In the alternative, petitioners pray that they be granted a judgment for money damages against defendants herein in solido in a sum equal to the original purchase price, plus all interest payments, fees and attorney fees in the sum of not less than Seven Thousand, Five Hundred and No/100 ($7,500) Dollars, plus Four Thousand, Nine Hundred and No/100 ($4,900.00) Dollars expended on repairs, plus Ten Thousand and No/100 ($10,-000.00) Dollars in damages.
      “C. In the further alternative, and in the alternative only, petitioners pray that they be granted a reduction of the purchase price equal to the cost of repairs already made in the sum of Four Thousand, Nine Hundred and No/100 ($4,900.00) Dollars, plus anticipated additional repairs in the sum of Five Thousand and No/100 ($5,000.00) Dollars, together with reasonable attorney fees in the sum of Seven Thousand, Five Hundred and No/100 ($7,500.00) Dollars, and damages in the sum of Ten Thousand and No/100 ($10,-000.00) Dollars; and that this judgment be against all defendants in solido.
      “Petitioners further pray for all costs.”

      . First Federal Savings and Loan Association relies on Williams v. Lucien J. Caruso, Inc., supra. In that case a lending institution was a defendant in a redhibition action involving a house. The other defendant was the builder-seller. Both of these defendants filed exceptions of prescription “on the ground that the petition sounds in tort and/or redhibition”.


source: Caselaw Access Project

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

license: Public Domain

text:
    Vickie Vaughan KRIGER, Plaintiff-Appellant-Appellee, v. Charles Arthur KRIGER, Defendant-Appellant-Appellee.
    No. 14466.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Schober, Clawson & Brabham, by Russell 0. Brabham, Shreveport, for plaintiff-appellant-appellee.
    Michael W. Beam, Bossier City, for defendant-appellant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Vickie Kriger sued her husband, Charles Kriger, for a legal separation on the ground of abandonment. The defendant husband answered and reconvened for a legal separation based upon constructive abandonment. Following a hearing Mrs. Kriger was awarded alimony pendente lite in the sum of $1600 per month. Subsequently, after a trial on the merits, the trial judge concluded that the parties had impliedly agreed to separate and dismissed both demands for a legal separation. Both parties appealed this judgment. Kriger also appealed the judgment awarding his wife alimony pendente lite.

We affirm.

The Krigers, who were married in 1978, resided in Shreveport where Kriger operated a battery recycling company. He was also a partner in a small Texas firm with offices in Houston, which Kriger frequently visited on business trips. He made one of those trips on Wednesday, April 30,1980, to interview job applicants. Kriger expected his wife to join him the following day. Instead, Mrs. Kriger decided to visit her parents in Dallas. However, before leaving home she penned a twelve page letter to her husband detailing her perception of their marital difficulties, complaining primarily that Kriger was devoting an inordinate amount of time to his business endeavors to the neglect of his home life. The letter was left at the matrimonial domicile for Kriger’s perusal upon his return. In order that Kriger might have time alone to ponder the contents of the letter, Mrs. Kri-ger explained in the epistle that she would be staying at the home of a Shreveport friend, Mrs. Patty Shields, after her brief visit to Dallas.

Both Krigers returned to Shreveport on Sunday, May 4 — Kriger to the family residence and Mrs. Kriger to her friend’s home. After a telephone conversation, Mrs. Kriger went back home on Tuesday, May 6 to discuss with her husband their marital problems. Their testimony concerning the substance of that conversation is contradictory. Mrs. Kriger testified that Kriger simply acknowledged that he was not “marriage material”, did not desire to remain married to her, and planned to vacate the family home. Kriger denied making these statements.

Be that as it may, the following day Mrs. Kriger assisted her husband in locating a suitable apartment and in furnishing his new abode. She made the initial rent payment out of a joint bank account. Kriger moved into the apartment on Thursday, May 8. Mrs. Kriger filed her suit for a legal separation on May 13, 1980. At the time of the trial on the merits, August 19, 1980, the parties had not resumed living together.

Kriger returned to the family residence on Saturday, May 10, to pick up some business papers. Mrs. Kriger, who was bathing in preparation for attendance at a birthday party for Kriger’s small son by a prior marriage, had locked the doors of her home and left Kriger’s papers outside on the patio for his convenience. Both attended the birthday party. After this they lunched together on two separate occasions.

As a general rule, before a separation may be granted based upon abandonment it must be proven that one of the parties withdrew from the marital domicile without lawful cause and that the withdrawing party has consistently refused to return. La.C.C. Art. 143; Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Clary v. Clary, 341 So.2d 628 (La.App. 4th Cir. 1977); Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976).

In addition to the codal definition of abandonment, our jurisprudence has held that a “constructive” abandonment occurs when one spouse without just cause prevents the other from residing at the matrimonial domicile. Burnett v. Burnett, 349 So.2d 488 (La.App. 3rd Cir. 1977); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Robertson v. Robertson, 332 So.2d 896 (La.App. 2d Cir. 1976). As pointed out in Robertson, to establish constructive abandonment the crucial factor is the rejected party’s “bona fide attempt to return and live with defendant, which was refused.”

Of course, living apart by mutual agreement does not constitute abandonment. As pointed out in Palama v. Palama, 277 So.2d 468 (La.App. 4th Cir. 1973), proof of abandonment requires that there be “a voluntary and unjustified separation by one spouse without the voluntary agreement of the other and with the intent of terminating the marital relationship.”

The court in Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir. 1979) observed that “all of the essential elements of abandonment must be shown to be involuntary on the part of the spouse bringing the action.” In that case the plaintiff was denied a legal separation for. abandonment because the “import of her testimony was that their remaining apart was by mutual agreement based on their recognition and acceptance of substantial and irreconcilable differences.”

In this case the trial judge concluded that the parties impliedly agreed to separate when Kriger moved into an apartment on May 8, and that there was no attempt at a reconciliation prior to trial on the merits. He doubtless considered as significant circumstantial evidence the fact that the Kri-gers continued living together for a couple of days following the discussion of their marital problems on May 6, indicating an absence of acrimony in this dialogue, and the fact that Mrs. Kriger assisted her husband in locating and furnishing an apartment.

In reviewing the trial judge’s finding in connection with this appeal, we are guided by the following statement found in Pearce v. Pearce, 348 So.2d 75 (La.1977):

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility (citation omitted). The factual findings of the trial court are therefore to be accorded very substantial weight on review.”

In this case, after examining the record, we cannot say the trial judge was clearly wrong in his construction of the conduct of the parties as amounting to an implied agreement to separate. Consequently, he acted properly in dismissing Mrs. Kriger’s suit for a legal separation for abandonment since Kriger’s departure from and remaining away from the family home was not without his wife’s consent. The trial judge also properly dismissed Kriger’s reconventional demand for a separation for constructive abandonment because he did not make a “bona fide attempt to return and live” with his wife.

Having reached this conclusion, we find that the question raised by Kriger concerning the excessiveness of the alimony pen-dente lite award becomes academic. As this court noted in Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir. 1979):

“... once the alimony is established in a judgment, it is owed until the judgment reversing or modifying it becomes final. This is true even though the judgment of the appellate court unequivocally announces that alimony is not owed at the outset.”

Also see Frederic v. Frederic, 302 So.2d 903 (La.1974).

If we ordered a reduction in the alimony pendente lite award that change would not go into effect until our judgment became final. Since our judgment affirms the trial judge’s dismissal of the actions for legal separation, no alimony pendente lite would be due after this judgment becomes final. Therefore, at that time the question of alimony pendente lite would become moot and our action in ordering a reduction would have been a useless act — in which we now refrain from engaging.

For these reasons the judgment of the trial court is affirmed, with the costs of appeal to be paid out of community funds.

MARVIN, J., concurs.

      . This letter was not introduced into evidence at the trial on the merits because it had apparently been disposed of by one of the parties. However, there appeared to be no dispute as to its substance.


author: JASPER E, JONES, Judge.

text:
    James M. FOWLER et al., Plaintiffs-Appellees, v. Charlie W. JORDAN et al., Defendants-Appellants.
    No. 14467.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      James M. Fowler, Jonesboro, pro s'e, Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiffs-appellees.
    Herold & Geneux, Shreveport, for defendants-appellants.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E, JONES, Judge.

Defendant, Charlie W. Jordan, appeals a judgment rendered against him in the amount of $200 as attorney’s fees and $20 as expenses in favor of James M. Fowler, plaintiff. The judgment also rejected a reconventional demand for attorney’s fees asserted by defendant, Charlie W. Jordan. We reverse that portion of the judgment against Charlie W. Jordan, reject plaintiff’s demands, and as amended affirm the judgment on the reconventional demand.

On March 14, 1980 Simon Herold, attorney for appellant, gave written notice to James M. Fowler for the purpose of taking Fowler’s deposition pursuant to LSA-C.C.P. art. 1438; in a cause of action styled “James M. Fowler, et al vs. Charlie W. Jordan, et al, # 24907” then pending on the docket of the Second Judicial District Court, Bienville Parish, Louisiana. The notice of the taking of the deposition provided that it would be taken at 2:00 p. m. on April 14,1980. When Fowler received the notice, he contacted his attorney, Albert E. Loomis, III, and advised Mr. Loomis that because of a previous conflicting court appearance date it would be impossible for him to appear at the deposition at the time and place set forth in the notice, and requested Mr. Loomis to contact Mr. Herold and seek to arrange a later date for the taking of the deposition. Mr. Loomis testified at the trial of these proceedings that he contacted Mr. Herold by telephone and they mutually agreed that the deposition of James M. Fowler would be taken by Mr. Herold at 9:30 a. m. on May 2, 1980 at the Bienville Parish Courthouse in Arcadia.

The evidence established that on May 2, 1980 at the appointed time and place, plaintiff, James M. Fowler, his attorney, Mr. Loomis, and a court reporter secured by Mr. Fowler, all appeared for the purpose of permitting Mr. Herold to take Mr. Fowler’s deposition, and that neither Mr. Herold nor his client, Charlie W. Jordan, appeared. Mr. Herold was then contacted by telephone and he advised he was unaware that the deposition was scheduled and he could not be available.

Plaintiff instituted this action for attorney fees and expenses contending he was entitled to them under the provisions of LSA-C.C.P. art. 1447:

“A. If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees. * * * 11

Plaintiff contends that the written notice to take-his deposition given him on March 14 by Jordan’s attorney, which set the date of the deposition as April 14 and its time at 2:00 p. m., was orally amended by the telephone conversation between Mr. Loomis and Mr. Herold to set the date of May 2, at 9:30 a. m. Plaintiff contends that the written notice as amended constitutes the notice required by LSA-C.C.P. art. 1447(A), and that when neither Jordan nor his attorney appeared to take the deposition, that plaintiff became entitled to his attorney’s fees and expenses incurred for the appearance at the aborted deposition.

A review of the written reasons of the trial court establishes that it found as a fact that Mr. Loomis and Mr. Herold agreed on the telephone for Mr. Herold to take Mr. Fowler’s deposition on May 2, 1980. The trial court concluded that the written notice of the taking of the deposition on April 14 was modified by the oral agreement consummated upon the telephone and that plaintiff was entitled to the attorney’s fee and expense award under LSA-C.C.P. art. 1447.

Appellant filed a reconventional demand seeking a judgment against Fowler for his attorney's fees incurred defending Fowler’s suit on the theory that Fowler’s claim against him for attorney’s fees and expenses was unauthorized by LSA-C.C.P. art. 1447 because there had been no written notice given to take the deposition on May 2. The trial court rejected appellant’s re-conventional demand.

The issue is does an oral agreement to amend the written notice for the deposition meet the requirements of LSA-C.C.P. art. 1447 so as to entitle Fowler to attorney’s fees and expenses when the appellant who has initiated the notice for the deposition failed to appear and take the deposition on the date agreed upon orally?

The secondary issue is whether the appellant is entitled to attorney’s fees if Fowler’s claim is found to be without merit.

LSA-C.C.P. art. 1438 sets forth the requirements of notice with which a party must comply when desiring to take a deposition:

“A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which be belongs.... ”

In the decision of Highstreet v. Regency Apartment Hotel, 337 So.2d 536 (La.App. 4th Cir. 1976), defendant had attempted to place into evidence a deposition which was taken after plaintiff was given only oral notice of the time and place of the deposition. The court there discussed the written notice requirement of LSA-C.C.P. art. 1451, which was the source of LSA-C.C.P. art. 1438. The rationale of the court was as follows:

“The deposition of Habighorst is, also, of substantially diminished evidentiary value. Reasonable written notice of the deposition was lacking and cannot be substituted by oral communication with plaintiff’s attorney’s office. The requirements of LSA-C.C.P. articles 1428 and 1451 were not met. See Silva v. Allen, 256 So.2d 447 (La.App. 4th Cir. 1972). Since the source of the discovery articles are, generally, the similar provisions in the Federal Rules of Civil Procedure, we look to them: In Associated Transport, Inc. v. Riss and Company, 8 F.R.D. 99 (N.D. Ohio, 1948), the court in suppressing use of a deposition, stated:
‘The purpose of Rule 30(a) is plainly to give a party full notice of the time and place that a deposition is to be taken. If the other party is required to postpone the taking of the deposition . .. for any ... reason, then the notice originally given becomes meaningless and a new notice is needed. There is nothing in the Rules to indicate that one written notice satisfies the requirement even though the deposition is not taken until a later date.. . One of the very purposes of the rule with respect to written notices is to make it unnecessary to go to such lengths, as here, to determine whether or not one of the parties knew a deposition was to be taken.’ ” Id. at 539 (emphasis added).

While the Highstreet case is concerned with the requirement of notice in connection with the use of the deposition of a party not available for trial under the provisions of LSA-C.C.P. art. 1428, now LSA-C.C.P. art. 1450, there is no distinction between the type of notice required for a deposition to be admissible in evidence and the type of notice required as a prerequisite to a cause of action under LSA-C.C.P. art. 1447. The type of notice in both instances is that set forth by the provisions of LSA-C.C.P. art. 1458.

If a party prepares a written notice setting forth the time and place for the deposition which he thereafter serves upon his opponent, he and his opponent are clearly aware of when to be present by virtue of the writing prepared by one and received by the other of the date and place when the deposition is to be taken. A failure of the party giving the notice to appear for the deposition entitles the party receiving the notice to a claim for attorney’s fees and expenses under LSA-C.C.P. art. 1447. The failure of the party receiving the notice to appear for the deposition may entitle the party giving the notice to a similar claim for attorney’s fees and expenses under the provisions of LSA-C.C.P. art. 1473. It is only by virtue of having the time, date, and place set forth in the notice in writing that the party giving the notice and the party receiving the notice can be considered bound to understand the time and place of the deposition to the extent that their failure to so understand and comply with the written notice prepared by one and given to the other should be a basis for a cause of action for attorney’s fees and expenses.

We conclude the possibility of a misunderstanding in a verbal communication precludes a verbal amendment to a written notice to take a deposition from forming a basis for a cause of action under LSA-C. C.P. art. 1447. We therefore find that the telephone conversation between Mr. Loomis and Mr. Herold cannot be construed as amending the written notice given by Mr. Herold of the taking of the deposition of Mr. Fowler and changing the date thereof from April 14 to May 2. Because Mr. He-rold had given no written notice to Mr. Fowler to take his deposition on May 2, Mr. Fowler has no cause of action for his attorney’s fees and expenses incurred for the purpose of attending the deposition at which Mr. Herold failed to appear.

Appellant’s reconventional demand for attorney’s fees is without merit. In order for appellant to have a claim under Louisiana law for attorney’s fees such claim must be either authorized by statute or contract. See Vines v. Vines, 379 So.2d 1219 (La.App.2d Cir. 1980), and Evans v. Natchitoches Collections, Inc., 378 So.2d 1037 (La.App.2d Cir. 1979). Appellant has asserted no basis in contract or by statute for his claim against appellee for attorney’s fees in defending the present suit.

We REVERSE the judgment condemning Charlie W. Jordan to pay James M. Fowler’s attorney’s fees and expenses, and reject Fowler’s demand for them. As AMENDED we affirm the judgment. We cast all costs incurred in the trial court and on appeal equally between appellee and appellant.

      . LSA-C.C.P. art. 1450 — “At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
      (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
      (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.
      (3) The deposition of a witness, whether or not a party, may be used by any party for the purpose if the court finds: (a) that the witness is dead; or (b) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (c) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (e) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

      . LSA-C.C.P. art. 1473 — “If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, or to serve answers or objections to interrogatories submitted under Article 1457, after proper service of the interrogatories, or to serve a written response to a request for inspection submitted under Article 1461, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Paragraphs (1), (2), and (3) of Article 1471. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
      * * * ” (emphasis added).


author: MARVIN, Judge.

text:
    Henry D. BOWMAN, Plaintiff-Appellant, v. EARLY AMERICAN INSURANCE CO. OF MONTGOMERY, ALA., Defendant-Appellee.
    No. 14468.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Jack D. Barnett, Shreveport, for plaintiff-appellant.
    Gordon E. Rountree, Shreveport, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action arising out of a collision between two city fire trucks in which a fireman passenger sustained personal injury, the plaintiff fireman appeals a summary judgment dismissing his demands for damages against the City’s liability insurer. We affirm. CCP 966, 967. Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Bazley v. Tortorich (La.1981).

Plaintiff contends that the exclusivity bar of the Workers’ Compensation Law, LRS 23:1032, is a personal defense to the employer and fellow employees of plaintiff and is not available to the defendant insurer and that uninsured motorist coverage should be statutorily afforded plaintiff under LRS 22:1406 because the record does not show that the City validly rejected UM coverage for the policy period in question.

In Braxton v. Georgia-Pacific Corp., 379 So.2d 1150 (La.App.2d Cir. 1980), upholding the exclusivity bar of § 1032, we observed, “. . . the intent of the Legislature is clear in circumstances where an employee suffers an injury .. . during the course and scope of his employment, that the remedy of the employee ... is governed exclusively by the workers’ compensation law, whether the claim is asserted against the employer or against . . . supervisory or fellow employees.” See also Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App.2d Cir. 1980). There the claimants in a workers’ compensation action, on the day of the hearing of a motion for summary judgment, filed an amended petition alleging that the acts of the employer earlier alleged to have been negligent or willful acts, were intentional acts. We noticed plaintiffs’ failure to state even an amended cause of action (CCP 927) and affirmed the summary judgment dismissing plaintiffs’ demands. We follow Braxton and Johnson and the cases cited therein, and hold that plaintiff’s remedy is exclusively under the workers’ compensation law and not in tort even as against the liability insurer of an employer or of an employee. To hold otherwise would circumvent the clear and express policy of § 1032. See Bazley, supra.

Were this injury to plaintiff not governed by the workers’ compensation law, the insurance policy in question would provide liability coverage. Where the injury is covered by workers’ compensation insurance, this liability policy expressly excludes the liability coverage. Even should we construe this circumstance in a light most favorable to claimant and permit circumvention of LRS 23:1032, we do not find that UM coverage is available to claimant because this record does show that the defendant City expressly rejected UM coverage in the policy previously issued to the City by the same insurer. LRS 22:1406(D). The initial policy period was January 1, 1974, to January 1, 1977. When this policy was renewed for the period January 1,1977, to January 1, 1978, it was not necessary that the City again reject UM coverage. The statute expressly provides that the initial rejection is effective as to the renewal policy.

“[UM] coverage need not be provided in ... a renewal . . . policy where the named insured has rejected the coverage ... in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured .. . which initially rejects such coverage .. . shall be conclusively presumed to become a part of the policy . .. irrespective of whether physically attached thereto.” LRS 22:1406(D)(l)(a).

See also Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App.2d Cir. 1979). Neither the statute nor the policy afforded UM coverage to plaintiff.

For reasons assigned by the lower court and here, and at appellant’s cost, the summary judgment is

AFFIRMED.


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    Thomas A. BARRON, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY LICENSE CONTROL & DRIVER IMPROVEMENT DIVISION, Defendant-Appellant.
    No. 14471.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.
    Writ Denied June 22, 1981.

      Foye L. Lowe, Jr., Associate Gen. Counsel, Dept, of Safety, Baton Rouge, for defendant-appellant.
    Rothell & Toups, Ltd., A Professional Law Corp. by David M. Cohn, Mansfield, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The State of Louisiana appeals a judg- . ment granting to plaintiff Barron a restricted driver’s license. We reverse.

In 1978 Barron was adjudged an habitual offender pursuant to the provisions of Louisiana R.S. 32:1471 et seq., and his driver’s license was revoked. At that time La.R.S. 32:1479 read as follows:

“No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state:
“(1) For a period of five years from the date of the order of the court finding such person to be an habitual offender; and
“(2) Until such time as financial responsibility requirements are met; and
“(3) Until upon petition, and for good cause shown, such court may, in its discretion, restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators’ licenses.”

In Smith v. State, through Department of Public Safety, 366 So.2d 1318 (La.1978), the Louisiana Supreme Court held that an habitual offender could be granted limited driving privileges in hardship cases during the five year revocation period, construing the and in La.R.S. 32:1479(1) as or.

By Acts 220 and 347 of 1979, which became effective September 7, 1979, the Louisiana legislature amended La.R.S. 32:1479 to read:

“No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state until all of the following requirements have been complied with:
“(1) a period of five years has elapsed since the date of the order of the court finding such person to be an habitual offender; and
(2) financial responsibility requirements are met; and
(3) Upon petition, after the lapse of the five year period provided above, and for good cause shown, the court, in its discretion, determines that the license should be restored. In restoring to such person the privilege to operate a motor vehicle in this state, the court may prescribe such terms and conditions as it deems necessary to protect the best interests of the public, subject to other provisions of law relating to the issuance of operators’ licenses.” (Emphasis added)

Barron filed this suit for a restricted driver’s license on May 27, 1980 and was granted the relief prayed for by judgment of the district court.

The State contends that the trial judge erred in granting a restricted driver’s license to Barron within the five year period following his being adjudged an habitual offender. It argues that the Smith case was legislatively overruled by the 1979 acts amending La.R.S. 32:1479; that these acts were interpretive in nature; and that their effect was simply to establish the meaning of this statute as of the date that Barron was adjudged an habitual offender.

On the other hand, Barron asserts that the 1979 amendments were not interpretive in nature and should not be given retroactive effect. Consequently, he contends that the holding in Smith governs his case, permitting him to be granted a restricted driver’s license within five years from the date he was adjudged an habitual offender.

Addressing the subject of interpretive legislation, the Louisiana Supreme Court in Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576 (La.1974) pointed out:

“.. . genuine interpretive legislation is a recognized function of legislatures in systems .of codified laws, being considered a correlative of the power to legislate. The legislature, after all, seems to be an appropriate agency to clarify the meaning of its own statements. 1 M. Planiol, Treatise on the Civil Law, §§ 208-11 at 155-56 (La.St.L.Inst. transl.1959); Yian-nopoulos § 32.5.
“Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of law. The interpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. 1 M. Planiol, Treatise on the Civil Law, § 251 at 179 (La. St. L. Inst, transl. 1959); Yiannopoulos § 32.5 at 18 (1975 Supp.).”

The court identified several factors preceding a legislative enactment which would indicate that the statute was intended to be interpretive, such as a recent construction of a statute by the supreme court not coinciding with legislative intent, or ambiguity in the original version of the statute.

In Smith our supreme court concluded that the statute under consideration contained “dubious wording” which in its opinion would lead to an “unreasonable result.” However, the following year the legislature amended the statute to clearly show that its construction in Smith did not coincide with legislative intent. We conclude, therefore, that this is a classic example of interpretive legislation which did not create a new rule but simply established the meaning that the interpreted statute, La.R.S. 32:1479, had from the time of its enactment and, particularly, at the time that Barron was adjudged an habitual offender. We note that the same legal conclusion was reached in Wheeler v. State, 377 So.2d 539 (La.App. 3rd Cir. 1979), where the court was confronted with this identical issue.

For these reasons the judgment of the district court granting Barron a restricted driving license is reversed and it is ordered that his petition be dismissed, with costs at trial and on appeal assessed to plaintiff-ap-pellee.


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    Danny M. McMELLON, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY LICENSE CONTROL & DRIVER IMPROVEMENT DIVISION, Defendant-Appellant.
    No. 14472.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1,1981.
    Writ Denied June 22, 1981.

      Robert L. Roshto, Asst. Gen. Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Herman L. Lawson, Rothell & Toups, Ltd. by David M. Cohn, Mansfield, for plaintiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The State of Louisiana appeals a judgment granting to plaintiff McMellon a restricted driver’s license.

The issues presented in connection with this appeal are identical to those raised in Barron v. State of Louisiana through the Department of Public Safety, our docket No. 14,471, 397 So.2d 29, rendered this date.

For the reasons set forth therein, we reverse the judgment of the district court granting McMellon a restricted driver’s license and order that his petition be dismissed, with costs at trial and on appeal assessed to plaintiff-appellee.


author: PRICE, Judge.

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    Jessica Linda Turbyfill BUTLER, Plaintiff-Appellee, v. Norbert Henry BUTLER, Defendant-Appellant.
    No. 14474.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Jack D. Barnett, Shreveport, for defendant-appellant.
    Pugh and Pugh by Robert G. Pugh, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In this instance, Norbert Butler filed a rule in March 1980 against his former wife, Jessica Turbyfill Butler, seeking a change of custody of their three minor children. From a judgment rendered on August 18, 1980, continuing custody of the children with their mother, plaintiff appealed. We affirm.

On this appeal, Butler complains that the trial court’s decision to continue custody with his former wife was not based on the best interests of the children. Instead he contends the trial court used the award of custody as a tool to regulate human behavior.

Change of custody proceedings are governed by La. C.C. Art. 157 which as amended in 1979 provides as follows:

In all eases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.

The Supreme Court, in the recent case of Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), set forth the sole criterion applicable to change of custody cases to be the best interest of the child. It further stated that the standard of review to be used in custody cases is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion.

We summarize briefly the facts giving rise to this dispute. The parties were married in 1964. Of this marriage three children were born, Norissa, John David, and Corey, ranging from age 16 to 11 at the time of the hearing. From the outset the parties experienced marital discord primarily due to plaintiff’s infidelity and lack of responsibility to his creditors. After frequent separations and reconciliations the marriage finally ended in 1978 when plaintiff began an affair with a woman he met on a business trip to Phoenix, Arizona. Defendant ultimately divorced plaintiff on grounds of adultery on April 4, 1979, and custody of the three minor children was vested in defendant in an uncontested proceeding.

Shortly thereafter defendant married Frank Lester, who proved to have a violent nature, and plaintiff moved to Colorado with his paramour. In June of 1979, defendant was having considerable problems with her new husband and was also having medical problems which required that she be hospitalized. In order to recuperate from her medical problems and to resolve her marital difficulties, defendant asked plaintiff to keep the children for a month instead of two weeks at the start and end of summer as previously agreed to in the custody judgment. Because defendant needed more time to recuperate, she subsequently gave plaintiff permission to keep the children for the remainder of the summer. Although there is a conflict in the testimony as to whether she agreed to let the children stay with their father throughout the fall of 1979, the record is clear that she refused to forward to plaintiff the children’s birth certificates, school and medical records he requested to facilitate their enrollment in a Colorado school. Furthermore, plaintiff, under cross-examination, admits that defendant had been seeking the return of the children since at least the late summer or early fall and never failed to persist in that direction. Due to plaintiff’s consistent refusal to return the children to their legal custodian despite the letters written on behalf of defendant by her attorney and the district attorney’s office urging him to do so, defendant and her husband drove to Colorado to get the children. Ultimately a habeas corpus proceeding was filed in Colorado and a hearing was had which resulted in plaintiff being allowed to retain physical custody of the children on the condition he file a change of custody proceeding in Caddo Parish. That proceeding was filed in March 1980, which proceeding is now at issue.

The record reflects that plaintiff married his paramour in October 1979 and further shows that defendant was granted a judgment of final divorce from Frank Lester in July of 1980. The hearing on the rule to change custody was held in August 1980. The trial court, in its oral reasons for judgment, noted that both parties had displayed characteristics in their past life that are undesirable in regards to being a good parent. The court, in noting that the paramount concern in custody cases is the welfare of the children and not to punish either parent for past actions, found that the best interests of the children would be served by continuing custody with the mother.

Our review of the record leads us to conclude that the trial court did not abuse the wide discretion accorded it by law. The record shows that the mother has been primarily responsible for raising the children from their birth. With the exception of the brief period during the unfortunate marriage of defendant to Frank Lester, evidence establishes that their needs, both physically and mentally, were adequately attended to. In particular we note that the child with a hearing impairment received a quality education and the special assistance needed under such circumstances while she was in the care of her mother. Defendant has been shown to be intimately involved in her children’s needs, and for the most part, has not given us reason to doubt she would continue to do so in the future.

We find little merit in plaintiff’s contention that the trial judge was attempting to regulate human behavior by awarding custody to defendant. We note, as did the trial court that both parties have acted irresponsibly and sometimes immorally on past occasions. However, we find this is only one of the many elements the court considers in its determination of custody.

Although we find commendable Mr. Butler’s efforts to see to his children’s needs while they resided with him in Colorado, we nonetheless cannot say the trial court was clearly wrong in returning the children to the custody of their mother. The principal reason plaintiff offered for failing to return the children to their mother was his fear that the children would be further exposed to the violent nature of defendant’s second husband. Since defendant has divorced this man and convinced the trial court she has no intention of resuming a relationship with him, we no longer find this to be a concern. Finally, because these children have resided with their mother for most of their lives and, for the most part, have prospered under her care, we find no abuse of discretion in the trial court’s decision.

We therefore affirm for the foregoing reasons. Costs of this appeal are assessed to plaintiff-appellant.


text:
    Karey HOLLINGSWORTH and Coca Edwards, Plaintiffs-Appellants, v. Thadjius EDWARDS, Defendant-Appellee.
    No. 14476.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Simmons & Derr by Jacque D. Derr, Winnfield, for plaintiffs-appellants.
    Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for defendant-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In this suit the plaintiffs, Karey Hollings-worth and Coca Edwards, seek to reform an act of sale of a certain tract of land from them to Thadjius Edwards (defendant). It is alleged that through error and mutual mistake the property description in the deed dated August 31, 1972, describes a tract of land plaintiffs did not intend to sell nor defendant to buy. In the alternative the plaintiffs seek a rescission of the sale on the grounds of mutual mistake.

The plaintiffs’ demand to reform the deed was rejected by the trial court because the land allegedly intended to be sold had been sold for unpaid taxes prior to the date of execution of the deed at issue. The trial court further held that plaintiffs had failed to satisfactorily explain why they executed an act of sale conveying to defendant the tract described in the deed if they in fact intended to convey other property. Plaintiffs appeal the dismissal of their suit contending that the trial court erred in failing to annul the sale on the grounds of error or in the alternative to reform the deed. For the reasons hereinafter assigned the judgment appealed is affirmed.

The primary issue on appeal is whether the plaintiffs have carried their burden of proving that the plaintiffs did not intend to sell and defendant did not intend to buy that property described in the deed of sale dated August 31, 1972.

Henry Edwards died intestate in Winn Parish in October 1970 survived by four children, one of whom is the defendant herein, Thadjius Edwards. At the time of his death, Henry Edwards owned a tract of land in Section 5, T 11 N, R 3 W, Winn Parish, Louisiana (the Edwards tract).

On November 19, 1970, plaintiffs purchased for $600 an undivided half interest in the Edwards tract from Nazerine and Darnell Edwards (defendant’s brothers and two of the surviving four children of Henry Edwards.) The property description in the deed was as follows:

ALL OF OUR UNDIVIDED INTEREST (being a Vi Interest) (Vi Interest each) in and to The Northeast Quarter of the Southeast Quarter of Northeast Quarter (NE Vi of SE V4 of NE Vi), Section Five (5) Township Eleven (11) North Range Three (3) West, La. Mer. Winn Parish Louisiana together with all improvements situated thereon.

At the time of his father’s death, defendant was living in Michigan. Upon visiting Winn Parish in December 1970, he learned of the sale whereby his two brothers had sold their interest in the Edwards tract to plaintiffs. Defendant expressed an interest in purchasing from plaintiffs the undivided half interest in the Edwards tract that they had purchased from defendant’s brothers. The parties apparently reached an agreement whereby the plaintiffs would convey to defendant their interest in the Edwards tract for the same consideration they had given, i. e., $600. No' money had changed hands and the deed had not been prepared when defendant left Winn Parish in December 1970 and returned to Michigan. It was not until January 1972 that defendant mailed the purchase price to plaintiffs. In September or October 1972 defendant received a deed dated August 31,1972, wherein plaintiffs conveyed to defendant for $600 a tract of land in Section 4, T 11 N, R 3 W, Winn Parish, Louisiana, described in the deed as follows:

The West Half (W Vi) of North Half (N Vi) of Southwest Quarter (SW Vi) of Northwest Quarter (NW V4), Section 4, Township 11 North, Range 3 West, Winn Parish, Louisiana, containing ten (10) acres more or less.
(Hereinafter referred to as the “Booker tract.”)

The Edwards tract, which was the object of the oral agreement entered into between plaintiffs and defendant in December, 1970, had been assessed for tax purposes in the name of Henry Edwards. The taxes for 1970 had not been paid and the entire 10 acres were sold at tax sale on June 21,1971, for nonpayment of the 1970 taxes to a buyer not a party to these proceedings. At the time of trial this property had not been redeemed.

Sometime in 1975 when defendant returned to Winn Parish, he was first informed by plaintiffs that a mistake had allegedly been made in the property description. Defendant had employed a surveyor to ascertain the limits of his purchase and the surveyor had apparently begun staking out the Booker tract instead of the Edwards tract when plaintiffs approached defendant and informed him that he had staked out the wrong land. This suit was instituted by plaintiffs on February 6, 1976.

By deed dated December 1, 1976, and filed for record on December 2, 1976, defendant conveyed the Booker tract to Barbara Ann Perry. At the time of this conveyance there had not been filed a notice of lis pendens in the mortgage records as provided by La.C.C.P. Art. 3752. Plaintiffs subsequently amended their petition and made Barbara Ann Perry a party defendant for the purpose of setting aside the conveyance from defendant to her as being prejudicial to their rights.

The legal principles applicable to a suit for reformation of a deed were recently summarized in Pipes v. Pipes, 343 So.2d 329 (La.App. 2d Cir. 1977), writ refused 345 So.2d 904 (La.1977)

Reformation of instruments is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. It is a personal action-, even when applied to real estate, in which the burden is on the one seeking reformation to establish the mutual error or mistake by clear and convincing proof, parol evidence being admissible for this purpose. Evidence of mutual error must be strong and convincing. (Citing Merritt v. Hays, 237 La. 557, 111 So.2d 771 (1959).)

Further guidance is provided by the additional statement in Merritt that “proof of mutual error in a suit to reform must be clear and the strongest proof possible produced.”

The witnesses presented at trial all testified to the fact that plaintiffs and defendant discussed the proposed purchase by defendant of plaintiffs’ half interest in the Edwards tract when defendant visited Winn Parish shortly after his father’s death in December 1970. It could be inferred from the testimony that plaintiffs meant to convey to defendant their undivided one-half interest in the Edwards tract which they had purchased from Darnell and Naze-rine Edwards. There is no evidence to indicate that the parties ever discussed the property which is described in the act of sale of August 31, 1972 (the Booker tract).

On the other hand, the defendant’s testimony could be construed as being in conflict with his. Although defendant testified that he wanted to “buy back” what the plaintiffs had bought (an undivided half interest in the Edwards tract), he later testified that he meant to buy 10 acres of property from plaintiffs. This apparent discrepancy in defendant’s testimony would be explained if the Edwards tract was a 10 acre tract (which was apparently the case.)

However reasonable it would be to conclude that the parties intended to buy and sell a one-half interest in the Edwards tract, we are of the opinion that plaintiffs have failed to show by clear and convincing evidence that the act of sale of August 31, 1972, was not indicative of the contract existing between them and the defendant. It is incumbent on plaintiffs to show not only that the parties had a different antecedent agreement than that expressed in the act of sale, but also a high degree of proof is required as to the error in committing this agreement to writing. See Merritt v. Hays, supra.

The record before us is totally devoid of any evidence which would explain how the description of the Booker tract found its way into the deed if the parties intended a conveyance of a half interest in the Edwards tract. Neither the notary who passed the act of sale nor the witnesses to it were called to testify. The plaintiffs did not attempt to explain in their testimony how the alleged mistake occurred. It cannot simply be presumed that there was merely a mistake in transcribing the property description when we are admonished to proceed with caution and to require clear and convincing proof of the highest degree. This is especially so in view of the presumption that “in sales of real property there is a strong presumption that the deed as executed properly describes the property conveyed.” Mire v. Miller, 140 So.2d 767 (La.App. 3d Cir. 1962).

Since we conclude that plaintiffs have failed to prove a case of mutual mistake of fact, we find the trial court reached the correct result in dismissing plaintiffs’ suit, and we need not address the additional allegations in relation to the sale of the Booker tract from Thadjius Edwards to Barbara Ann Perry.

For the foregoing reasons, the judgment appealed is affirmed at appellants’ costs.


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    Carolyn NASH, Plaintiff-Appellant, v. DRAUGHON BUSINESS SCHOOL and Aetna Life & Casualty Company, Defendants-Appellees.
    No. 14482.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Piper & Brown by Frank E. Brown, Jr., Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting her demand for personal injury damages arising out of a trip and fall, contending that an allegedly “puckered” (wrinkled) carpet is a defective thing imposing strict liability on its custodian under CC Art. 2317, Loescher v. Parr, 324 So.2d 441 (La.1975), and its progeny. We affirm.

For about six months before the accident, plaintiff had been a student in defendant’s business school which occupied premises on the first floor of a multistory Shreveport office building. Plaintiff tripped and fell on a small stairway leading from the lobby of the building to the premises leased by the business school. She stated that she used these steps twice daily and that she “had been noticing” the alleged puckers in the carpet from the time she “first started going” to school.

The evidence conflicted as to whether the carpet was “puckered” as plaintiff states and as to whether plaintiff explained and demonstrated to another that she fell because of a loose heel on one of the boots which she wore on that day. Additionally, we observe that the stairway is not a part of the premises leased to the defendant school.

The trial court did not make detailed findings of fact, but did observe that plaintiff had prior knowledge of the condition of the carpet. The trial court correctly relied on Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976), which held that a premises owner will not be found liable to a person on the premises who is injured when she falls as a result of a premises condition under her feet which was as obvious to her as it was to the premises owner. We must also presume that the trial court, in rejecting plaintiff’s demands, resolved all factual issues against plaintiff.

But even should we presume otherwise and assume to the contrary, arguendo, that the carpet was on defendant’s premises and was puckered as plaintiff says, and that the heel on her boot was not loose, the plaintiff does not prevail where she admits that she had been noticing the puckers for the six months she had been attending school before the accident. Once the elements establishing strict liability under CC 2317 are proved, the custodian of the defective thing may avoid that liability by showing that the injury was caused by the fault of the victim. See fn. 1, Sepulvado v. State, Dept. of Highways, 395 So.2d 858 (La.App. 2d Cir. 1981), citing Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980). Compare Marquez v. City Stores Co., 371 So.2d 810 (La.1979).

At appellant’s cost, judgment is AFFIRMED.


text:
    Nick PUTCH, Plaintiff-Appellee, v. James P. STRAUGHAN et al., Defendants-Appellants.
    No. 14484.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.
    Writ Denied June 12, 1981.

      Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for defendants-appellants.
    Sockrider & Bolin by James E. Bolin, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

On February 13, 1968 plaintiff sued defendants on a mortgage note and also asked for a money judgment on various other alleged obligations. The case.was tried on the merits on March 3, 1970 and “continued for argument.” On April 16, 1979 the defendants filed a motion to dismiss for want of prosecution under La. C.C.P. Art. 561. This motion was overruled and, subsequently, judgment was rendered in favor of plaintiff on the merits.

Defendants appeal, including among their specifications of error the failure of the trial judge to sustain the motion to dismiss the suit for lack of prosecution.

We reverse.

La. C.C.P. Art. 1637 provides that “after the trial is. completed, the court may immediately pronounce judgment or take the case under advisement.” La. R.S. 13:4207 requires that judges decide all cases taken under advisement within thirty days from the time that they are submitted for decision.

It is well established under our jurisprudence that where a ease has been submitted for decision the law relative to abandonment of actions for failure to take a step in the prosecution for five years is inapplicable. Bryant v. The Travelers Ins. Co., 288 So.2d 606 (La.1974); Barton v. Burbank, 138 La. 997, 71 So. 134 (1916); Washington v. Harvey, 124 So.2d 240 (La.App.2d Cir. 1960). Furthermore, when briefs are ordered the case is “considered fully submitted on the day following the day of the latest timely filing of a brief or, at the latest, the day following the last day for filing of briefs.”

The critical question in this case is whether on March 3, 1970, or within five years thereafter, the matter was deemed submitted to a trial judge for decision.

According to the trial transcript, after the defendants completed the presentation of their evidence the trial judge announced: “Let the case be continued for argument.” (Emphasis added) The minute entry of the trial court for March 3, 1970 pertaining to this case recites: “Trial resumed, evidence further adduced, closed and case continued for argument.” (Emphasis added)

In Barton v. Burbank, supra, the court found that plaintiffs, having submitted their case to the judge, should not be held responsible for his delay in the discharge of his duty, pointing out:

“. . . the idea of the statute being merely to hold a plaintiff responsible for delay attributable to his nonaction in and failure to prosecute his suit up to the point at which the court is placed in a position to render judgment.”

In our case it seems obvious that the matter was not submitted to the trial judge for decision on March 3, 1970. After the court’s statement that the case was being continued for argument, it was plaintiff’s responsibility to request that the trial judge fix a date for that argument. Failing to take that step in the prosecution for a period of five years after March 3, 1970, plaintiff is deemed to have abandoned his action under the provisions of Article 561 which are “operative without formal order.”

The trial judge’s reliance upon Section 2 of the Administrative Rules of the Louisiana Supreme Court is misplaced. Even if this rule, which deals in pertinent part with submission of cases for decision when briefs are ordered, applies to matters continued for oral argument, it did not become effective until January 1, 1977, after plaintiff abandoned his suit by permitting five years to elapse without taking a step in its prosecution.

We note, parenthetically, that after the trial judge ruled that the case had been submitted for decision, a minute entry of the trial court pertaining to this case, dated September 17, 1979, recites: “The Court ordered the case submitted on the merits on brief to be filed by Defendant in 10 days.” (Emphasis added) A later minute entry, dated February 4, 1980, states: “By agreement, case on the merits submitted on briefs already filed.” (Emphasis added) It appears that these later actions of the trial judge contradict his earlier finding that the case had been submitted prior to filing of the motion to dismiss for lack of prosecution.

To summarize, we find that this case was not submitted for decision on March 3,1970, or within five years thereafter; that according to the record plaintiff took no step in the prosecution of his action for a period of five years; and that plaintiff’s case was automatically abandoned under Article 561 when he permitted that five year period to elapse. Having decided the appeal on this basis, we pretermit consideration of appellant’s other assignments of error.

For these reasons, we conclude that the trial judge erred in overruling defendants’ motion to dismiss the case for lack of prosecution. Therefore, the judgment of the trial court is reversed and there is judgment dismissing plaintiff-appellee’s suit for failure to take a step in its prosecution for a period of five years. Appellee is cast for all costs, both at trial and on appeal.

      .This article reads in pertinent part: “An action is abandoned when the parties failed to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

      . The district judge who overruled the motion was not the same judge who presided over the trial of the case on the merits, nor did the attorneys who represent plaintiff on appeal represent him at the trial on the merits.

      . See Louisiana Supreme Court General Administrative Rules, Sec. 2(a) (applicable to La. R.S. 13:4207), which became effective January 1, 1977.


text:
    Patrick H. WRIGHT, Jr., Plaintiff-Appellant, v. Martha Elizabeth Goulette BRUYERE, Defendant-Appellee.
    No. 14485.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.

      Wright & Wright by Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

This defamation action arose when Mrs. Bruyere, on allegations of her then attorney’s fraud and ill practices, sued to annul a separation action rendered against her by default. Her attorney in the separation suit then brought this action for defamation while Mrs. Bruyere’s suit to annul was pending. The trial court sustained Mrs. Bruyere’s exception in the defamation action on the authority

“. .. that a cause of action for defamatory statements in the pleadings of a civil case does not arise . . . until final determination of such suit ...” Calvert v. Simon, 311 So.2d 13 (La.App.2d Cir. 1975)

Plaintiff-attorney appeals, contending that cases recognizing the Calvert rule concerned only the parties to the case in which the defamatory statement was pleaded and should not apply to him because he is not a party in the nullity action and is unable to defend himself in that action. He also contends that application of the Calvert rule to defer his cause of action for defamation is a denial of his right to have adjudicated without unreasonable delay, his demands for injury to his reputation, as guaranteed by Art. 1, § 22, La. Constn.

As explained in Calvert, the basis for deferring the cause of action stems from the desirability that statements made in a judicial proceeding be privileged to some degree, either absolute or qualified.

“... [F]ree and unfettered litigation is essential in order to achieve justice and . . . this concept must be preserved even though on occasion the process may be abused and an individual . . . damaged by libelous statements . . . The public interest in the freedom of expression by participants in judicial proceedings, uninhibited by risk of resultant suits for defamation, is . .. vital and necessary to the integrity of our judicial system ...” 311 So.2d at p. 16.

Calvert parenthetically observed that a statement in a judicial proceeding by one who is not a party to that proceeding may also be privileged. See 311 So.2d at p. 17. Calvert also explained that the cause of action for an allegedly defamatory statement is deferred to allow the person making the statement to prove the truth of that statement in that proceeding.

While we see no reason why the Calvert rationale should not apply to a defamatory statement made against one who is not a party to the action in which the statement was made, the Supreme Court has made the distinction between a party and a non-party. Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906). There it was said:

“[S]uch rule could not be applied . . . where plaintiff was not a party to the suit wherein the allegations . . . were made. Not being a party to the suit, he would have no right to insist upon its being tried, so that, for all he could do, its trial might be postponed indefinitely. If it came to be tried, he would have no right to offer evidence to establish the falsity of the libelous allegations. The result of the suit, or any of the proceedings in it, could not be binding on him. Indeed, it stands to reason that one’s right of action cannot be dependent upon what shall be done in a suit to which one is not a party.” 116 La. 293, 40 So.2d at p. 712. See also Monier v. Fontenot, 165 So. 481 (La.App. 1st Cir. 1936).

Therefore, judgment sustaining the exception of no cause of action and dismissing plaintiff’s action is REVERSED at appel-lee’s cost and the cause is remanded for further proceedings.


text:
    Johnny Lee CARROLL, Plaintiff-Appellee, v. TWIN CITY PONTIAC USED CARS, INC., Defendant-Appellee, First National Bank of Rayville, Third-Party Defendant-Appellant.
    No. 14487.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    Cotton, Bolton, Roberts & Hoychick by John Hoychick, Jr., Rayville, for third-party defendant-appellant.
    Coenen, Berry & Bruyninckx by James W. Berry, Rayville, for plaintiff-appellee, Johnny Lee Carroll.
    Thomas H. Fowler, Jr., Monroe, for defendant-appellee, Twin City Pontiac Used Cars, Inc.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff Carroll sued Twin City Pontiac Used Cars, Inc. (Twin City) for damages for the wrongful seizure of a 1976 Buick automobile allegedly purchased by plaintiff from defendant. Carroll asked alternatively, and in the event the court found that there had been no completed sale to him of the seized vehicle, that defendant return to him a 1970 Chrysler which plaintiff had traded in on the Buick, together with a $100 cash payment. Twin City answered, denying the wrongful seizure, and filed a third party demand against First National Bank of Rayville (First National), alleging that any damages suffered by Carroll resulted from third party defendant’s breach of an oral promise to honor a draft drawn for partial payment of the purchase price of the Buick. First National answered the third party demand, asserting that it had dishonored the draft because Carroll did not pay the sales tax and license fee which would have been-due in connection with his purchase of the Buick. First National also filed an exception of no cause of action, which was overruled.

The trial judge determined that there had been no wrongful seizure of the Buick because Carroll had voluntarily released it to Twin City. However, he reasoned that Carroll was entitled to recover the $200 which Twin City had received when it sold the Chrysler which Carroll had traded in. Therefore, judgment was rendered in favor of Carroll and against Twin City for that sum. Further, apparently because of his conclusion that First National had breached an oral promise to honor the draft, the trial judge rendered judgment on the third party demand in favor of Twin City and against First National for the sum of $200 — holding, in effect, that First National should be ultimately liable for any damages sustained by Carroll.

First National appealed the judgment against it on the third party demand. Twin City neither appealed nor answered First National’s appeal. Carroll purported to answer First National’s appeal. However, as stated, that appeal was from the judgment in favor of Twin City on the third party demand. Since Twin City did not appeal the judgment in favor of Carroll, Carroll’s answer could not constitute an appeal to revise the judgment in his favor on the original demand against Twin City. Consequently, the only appeal before this court is that of First National requesting reversal of the lower court judgment on the third party demand.

Context Facts

In February 1980 Carroll visited Twin City’s used car lot in Monroe and expressed interest in buying a 1976 Buick. Upon ascertaining the purchase price, Carroll went to First National and secured a loan commitment of $3200, to be secured by a chattel mortgage covering the Buick. Carroll then returned to Twin City where he informed the salesman with whom he was dealing, Arrington, that First National had agreed to lend him $3200 to finance his purchase of the used Buick. Arrington telephoned Stafford, First National’s president, and received confirmation of that information. Stafford assured Arrington that a draft upon First National, in the sum of $3200, accompanied by the customary documents, would be honored.

On February 12, 1980 Twin City sold to Carroll the 1976 Buick for an invoice price of $4045. Carroll was allowed a trade-in allowance of $845 for a 1970 Chrysler. The balance of $3200 was represented by a draft in that amount prepared by Twin City, naming it as payee, drawn upon First National, and signed by Carroll. This draft with accompanying documents was promptly transmitted through regular banking channels to First National. In the meantime, the 1970 Chrysler traded in by Carroll was sold by Twin City for a wholesale price of $200.

First National held the. draft for two or three weeks and then returned it to Twin City dishonored. Stafford testified that First National did not honor the draft because Carroll had not paid the sales tax and license fee due in connection with his purchase of the car.

When Twin City received the draft back, Arrington immediately contacted Carroll to inform him of this development. Carroll was further advised that, unless he could promptly secure other financing, the Buick should be returned to Twin City for storage while the parties explored the possibility of a loan from such other source. The next day Carroll drove the Buick back to Twin City’s lot in Monroe and handed the keys to Arrington. Twin City offered Carroll a $100 refund but the tender was refused. This litigation ensued.

Liability of First National to Twin City

As we have previously indicated, the sole issue presented on this appeal is whether First National is liable to Twin City for breach of the oral promise to honor the $3200 draft. Preliminary to a discussion of that question, it should be noted that Twin City’s third party demand is not on the draft but is for damages for the bank’s failure to honor that instrument.

La.R.S. 10:3-409 provides:

(1) A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
(2) Nothing in this Section shall affect any liability in contract, tort or otherwise arising from any letter of credit or other obligation or representation which is not an acceptance. (Emphasis added)

The import of this statutory provision appears to be clear. Although the drawee on a draft is not liable on the instrument until it is accepted, this does not preclude liability on the part of the drawee to the holder arising apart from the instrument, i. e., in tort or upon some other basis because of the drawee’s representation that the instrument will be accepted. Furthermore, La.R.S. 10:4-103 imposes upon banks a duty to exercise ordinary care in the handling of commercial paper and provides for damages in the event of the violation of that duty.

In this case First National not only breached its promise to Twin City to honor the $3200 documentary draft, but also failed to exercise ordinary care in handling that item by unreasonably delaying its decision to dishonor the paper. Consequently, the trial judge correctly held that the bank was liable in damages to Twin City.

Since there had apparently been a mutual agreement by Carroll and Twin City to rescind the sale of the Buick, Twin City could not recover the amount of the draft under La.R.S. 10:4-103(5). However, because First National acted in bad faith in handling this transaction (breach of promise to honor draft and unreasonable delay in holding instrument prior to dishonoring), third party plaintiff was entitled to recover damages sustained by it. The record reveals that Carroll used the Buick for about a month and drove the ear some 1500 miles — with the resultant depreciation in its value. Furthermore, during the time that First National was holding the draft Twin City, relying upon the bank’s promise to honor that instrument, sold at wholesale for $200 the car traded in by Carroll. The judgment of the lower court decreed that Twin City pay that sum to Carroll. Under these circumstances we cannot say that the trial judge was manifestly in error in fixing the amount of damages for Twin City by First National at $200.

For these reasons we affirm the judgment of the lower court on the third party demand by Twin City against First National, at appellant’s cost.

      . La.C.C.P. Art. 2133 provides in part:
      “The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him In favor of the appellant and of which he complains in his answer.” (Emphasis added)
      As pointed out in the Comment to this article, an answer to an appeal cannot be used by an appellee to revise, modify or reverse a judgment rendered in favor of another appellee.

      . La.R.S. 10:4-103(5) provides:
      (5) The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, and where there is bad faith it includes other damages, if any, suffered by the party as a proximate consequence.

      . Although this was not an explicit finding by the trial judge, it is implied in his oral reasons for judgment.


text:
    BOUCHER & SLACK CONTRACTORS, INC. and Bronner Investment Company, Inc., a Joint Venture, Plaintiffs-Appellants, v. Harvey McLEAN, Jr., Liquidator of Woodlands of Huntington, Inc., Defendants-Appellants.
    No. 14490.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 1981.
    En Banc. Rehearing Denied May 1, 1981.
    Writs Denied June 12, 1981.
    Wiener, Weiss, Madison & Howell by James Fleet Howell, Shreveport, for plaintiffs-appellants.
    Peatross & Greer by Charles B. Peatross, Nelson & Achee, Ltd. by Harry R. Nelson, Shreveport, for defendants-appellants.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In Boucher & Slack Contractors, Inc. v. McLean, 382 So.2d 1030 (La.App.2d Cir. 1980), writ recalled, 391 So.2d 840 (La.1980), we upheld the right of the defendant, owner of an apartment complex, to exercise against the plaintiff, contractor for the complex, a letter of credit executed by the contractor in lieu of a performance bond for the contract. The owner’s exercise of the draw under the letter of credit was founded upon the owner’s supporting affidavit that $440,000 was owed in damages because the contractor failed to complete the contract with due and reasonable diligence, as required by the contract, which otherwise did not have a completion date.

The contractor then sought a declaratory judgment that it had timely performed the contract and that it was entitled to damages from the owner for exercising the letter of credit. The owner, of course, sought to prove the damages asserted in the exercise of the letter of credit.

. The trial court found that the contractor had not performed with due and reasonable diligence and rendered judgment for the owner for $77,228. The trial court denied attorney fees claimed by the owner for dissolving a TRO which earlier restrained honoring of the letter of credit. Both litigants appeal. The owner, in addition to attorney fees, seeks to increase the damage award. We affirm for the excellently detailed and supported reasons assigned by the trial court.

The contractor generally contends that the trial court erred in finding that 13 months was a reasonable time in which the contract should have been completed according to the particular circumstances under industry standards. The contractor argues that factors such as the effect of inclement weather, a fire during construction, labor and material shortages, and the owner’s unsuccessful negotiation for a guaranteed completion time of 18 months in the contract, support the contrary finding that the substantial completion in I6V2 months was fulfillment of the contract requirement of completion with due and reasonable diligence.

The owner generally contends that the evidence supports the claimed increase in damages, based particularly upon a 10-month “reasonable” completion date, and that the law compels that the owner be awarded attorney fees for dissolution of a wrongly issued TRO.

The essence of the several contentions of the litigants is whether or not the trial court manifestly erred or abused its discretion in weighing the evidence presented and in determining the amount and the basis of tile eventual award. We find no such error or abuse.

The trial judge was impressed with the testimony of the owner’s expert witnesses. While the contractor’s experts testified in generalities and did not exhibit specific familiarity with the project, the owner’s experts exhibited specific and der tailed knowledge of the project. The testimony of the owner’s experts was given greater weight. This was within the trial court’s discretion and should not be disturbed on appeal unless that discretion is abused. See State, Department of Highways v. DeJean, 322 So.2d 265 (La.App.2d Cir. 1975) and Maddox v. Percy, 351 So.2d 1249 (La.App.1st Cir. 1977). The owner’s expert and lay testimony constitutes substantial evidence supporting the judgment and the trial court’s conclusion that 13 months was a reasonable completion time for a contract pursued with “due and reasonable diligence”.

The trial court’s award of damages was also well within its discretion. See CC Art. 1934(3). The basis of this award (loss of rental income) was particularized by the trial court. We find no error in the trial court’s analysis or assessment of damages and decline to reduce or to increase the judgment in this respect.

The trial court denied the owner attorney’s fees for dissolving the TRO after considering the background of the litigation, the manner in which it arose, the evidence presented, the briefs filed, and all factors in the case. CCP 3608 states:

“Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages ...” Our emphasis.

The clear language of the article gives the trial judge discretion to award attorney’s fees as a part of damages. We find no error or abuse of discretion in the denial of attorney’s fees.

We adopt, as our opinion, but do not publish, the very excellent and detailed reasons given in 23 pages by the trial court, and, at plaintiff’s cost, AFFIRM the judgment appealed.

      . The contractor specifically contends on appeal that the trial court erred in not finding that the intention of the parties governed the determination of “due and reasonable diligence” and that the evidence showed that this period was at least 18 months. Plaintiff also contends the trial court erred in finding that defendants proved to a legal certainty that it would have earned net profits during the 3V2 month period between time the project allegedly should have been completed (13 months) and when it was completed (after I6V2 months). The contractor further asserts that the trial court erred in awarding an amount for the alleged loss of “gross rentals” and contends that the award was speculative and subjective.

      . The owner specifically argues on appeal that the trial court erred in finding that the contractor would have exercised due and reasonable diligence by completing the project in 13 months. The owner contends that 10 months is the proper time frame. The owner also contends that the trial court should have awarded $440,129.58 and not $77,228.94 to him. In this connection, the owner argues that the trial court erred in ordering the return of $362,-900.64 to the contractor (the difference in the damages awarded to the owner and the amount claimed under the exercise of the letter of credit). The owner contends the trial court erred in denying the owner’s request for attorney’s fees incurred in defense of the TRO-preliminary injunction portion of the case. The owner also asserts that the trial court erred in ordering the return of $50,000 deposited by the contractor as a bond for the issuance of the TRO.

      . “This Court has been requested to award attorneys fees for the effort made by Defendants’ attorneys in dissolving the temporary restraining order which previously issued herein. Although this relief was requested at the outset of this litigation and Defendants had reserved their rights to seek attorneys fees in the judgment of September 19, 1979, nevertheless, this issue was never addressed during the course of the litigation, either through evidence, brief, or argument of counsel. The matter has now arisen in connection with the final judgment to be presented for signature following the trial on the merits.
      “This Court has considered the background of this litigation, the manner in which it arose, the evidence presented and the previous written opinions of this Court. We have also considered the most recent briefs filed by counsel.
      “After having considered all the factors in this case, we decline to make an award of attorneys fees as an element of damages in the defense of this litigation. Accordingly, the claim for attorneys fees is rejected.”