author: CUTRER, Judge.

text:
    Keith F. LANDRY, Plaintiff-Appellant, v. Clovis RACCA, Defendant-Appellee.
    No. 7678.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for plaintiff-appellant.
    Reuvan N. Rougeau, Lake Charles, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff, Keith Landry, brought this suit to recover damages for repair of defective cabinets installed in Landry’s home by defendant, Clovis Racca; to cancel a labor lien filed by Racca and to recover attorney’s fees for the cancellation of the labor lien. Racca filed a reconventional demand to recover the sum of $975.00 for “extras” installed for Landry by Racca. The trial court dismissed the demands of Landry and the reconventional demand of Racca. Landry appealed. Racca did not appeal the judgment dismissing the reconventional demand.

The issues presented on appeal are: (1) Whether Landry’s final payment to Racca for carpentry work amounted to acceptance of the work, thus barring Landry from seeking to recover the cost of repairing defects of which he was aware before payment; (2) if Landry is entitled to bring this action, what damages is he entitled to recover; and (3) whether Landry is entitled to recover damages and attorney’s fees in connection with Racca’s refusal to cancel a lien.

Landry employed Racca to perform the labor for the construction of Landry’s residence in Lake Charles. Construction began on October 31, 1978. No price for the labor was agreed upon at the time that construction began. The work on the house progressed and on December 5, 1978, Landry paid Racca $7,024.64 as partial payment for the work done by Racca. On February 27, 1979, a second payment was made to Racca by Landry in the amount of $3,588.00, bringing the total paid Racca to $10,588.00. At the time of this latter payment, Racca testified that the work on the house had not been completed. He stated that there remained the work of installing some baseboards, base shoes and cutting some doors. Racca stated that he had included this remaining work in the second payment paid to him by Landry on February 27, 1979. He stated, however, that this payment did not include the “extras” he later demanded in his reconventional demand. Racca further testified that about one week after the February 27th payment, Landry called him stating that the kitchen cabinets were un-level and requested that Racca level same. Racca agreed to level the cabinets. On March 17th, Racca, along with his son, returned to the residence to perform the leveling work on the cabinets. Racca testified further that, on March 24th, he finished the work on the baseboards, base shoes and the cutting of doors. This was the last work done on the house by Racca.

After the cabinets were originally installed, Landry had installed the sink, dishwasher and formica counter top. Testimony at trial reflects that in order to level the cabinets, it would be necessary to remove and reinstall the sink, dishwasher and formica counter top. Landry brought suit for $700.25, which included the costs of leveling the cabinets, removing and replacing the formica and removal and reinstallation of the sink and dishwasher. Landry also sued for attorney’s fees for cancellation of a lien filed by Racca.

The trial judge, in oral reasons for judgment, stated that he was dismissing the plaintiff’s demands for the reason that the unlevel condition was obvious by mere visual inspection. The trial court stated that this obvious unlevel condition existed when Landry made the second or final payment to Racca. Under these circumstances, the trial court then held that there was an apparent “accord and satisfaction” between Landry and Racca as to the obvious defect, thus Landry had no claim against Racca for any leveling costs. We disagree with this position.

An examination of the testimony of Rac-ca clearly reflects that further work was to be performed after the second payment was made. Racca testified that the second payment was not a final payment. He stated that he told Landry that the payment did not include the costs of “extras” that he claimed in his reconventional demand. Also, Racca testified that Landry called him about a week after the second payment complaining of the unlevel cabinets. Racca agreed to perform this leveling work. Pursuant to this agreement, Racca performed the leveling work about a week later. Racca felt that he had successfully leveled the cabinets, but the evidence is clear that they remained obviously unlevel after Racca attempted to level same.

The second payment by Landry did not bar him from claiming the cost to level the cabinets since it was agreed by Racca that he would remedy the defect and did attempt to do so. We will reverse the trial court and allow the cost of leveling the cabinets which, according to the exhibit introduced by Racca, was $250.00.

The trial court, in its reasons for judgment, also found that Landry, faced with an obviously unlevel cabinet, installed the formica counter top, sink and dishwasher. The formica would have to be replaced entirely and the sink and dishwasher would have to be disconnected and reinstalled when the cabinet was leveled. The trial judge concluded that Landry could have mitigated these damages by not making these installations until after the leveling was accomplished. Due to Landry’s failure to mitigate these damages, the trial - court concluded that Landry could not recover these expenses.

It is the duty of an injured party to mitigate his damages after a wrongful action occurs. This rule applies to both tort and breach of contract actions. Lawyers Title Insurance Co. v. Carey Hodges & Assoc., 358 So.2d 964 (La.App. 1st Cir. 1978); Dupre v. Tri-Parish Flying Serv., Inc., 355 So.2d 554 (La.App. 3rd Cir. 1978). We agree with the trial court that the failure of Landry to mitigate his damages would bar him from recovering the expenses of disconnecting and reinstalling the sink and dishwasher, and for the removal and reinstalling of the formica counter top. We agree with the trial court in this regard.

We next examine the issue of whether damages and attorney’s fees are due for Racca’s refusal to cancel the labor lien filed against Landry’s property.

Racca filed a labor lien on May 23, 1979, stating that he had furnished labor for the installation of “extras” for the sum of $975.00 which had not been paid. Landry demanded, by letter of June 11, 1979, that the lien be cancelled. Racca refused to cancel the lien and reconvened for the $975.00 in the present action. The trial court dismissed this reconventional demand, having found that Racca had been fully compensated by Landry for all work in the February 27, 1979 final payment.

In his petition, Landry asked that the lien be cancelled and that he be awarded attorney’s fees for the failure to cancel. The trial court ordered the lien to be can-celled, but denied attorney’s fees. The trial court found that, since there was no evidence to indicate that Racca acted arbitrarily or capriciously in refusing to cancel the lien, Landry was not entitled to attorney’s fees. The trial court erred.

Under the Residential Truth in Construction Act, LSA-R.S. 9:4851 through 9:4855, a notice of lien rights must be given to the owner of residential property when home improvements or construction would entitle any person to lien rights against the property. Racca admitted that he did not give such required, non-waivable notice. Racca failed to comply with the Residential Truth in Construction Act.

LSA-R.S. 9:4855 provides for penalties in violation of the provisions of the Act as follows:

“In the event any liens are perfected under the provisions of this Part against any immovable property for work or improvements covered under the provisions of this Subpart and the contractor has failed to comply with the provisions of this Subpart, or, if, having technically complied with this Subpart, has willfully, knowingly, and unlawfully falsified any statements or fraudulently obtained the signature of the owner or his agent, such owner shall have a civil cause of action therefor, and shall be entitled to reasonable damages and attorney fees. . . ’’ (Emphasis added.)

This statute pertains to residential property and under this provision, it is not necessary to show that the refusal to cancel the lien was arbitrary and capricious. The statute simply provides that an improperly perfected lien gives rise to a cause of action and entitled the owner to reasonable damages and attorney’s fees.

Landry introduced evidence, without objection, that he suffered damages in the amount of $29.00. This enlarged the pleadings to include a demand for damages. This sum represented the premium for a bond required by the institution financing Landry’s home. We will award this item as damages resulting from the lien which did not comply with the Residential Truth in Construction Act.

We will also award the sum of $250.00 as attorney’s fees in connection with the suit for cancellation of the lien. The Court of Appeal has the authority to award attorney’s fees by applying its knowledge to the extent of services rendered by counsel. Mathieu v. Nettles, 383 So.2d 1337 (La.App. 3rd Cir. 1980); Texhoma Contractors v. So. Shipbldg. Corp., 337 So.2d 584 (La.App. 4th Cir. 1976).

For the reasons assigned, the trial court judgment is reversed insofar as it dismissed plaintiff’s demands and it is now ordered that there be judgment in favor of plaintiff, Keith F. Landry, and against defendant, Clovis Racca, in the amount of $529.00. All costs, both at the trial level and on appeal, are assessed against defendant-appellee, Clovis Racca.

REVERSED AND RENDERED.

      . Racca testified as follows in this regard:

        "When he call me about a week after he had paid me the final footage payment. He called me and said the cabinet was off. I said, ‘Okay. I’m going to go check it, but I have three houses going.’ I said. ‘First chance I sets. I’m aoine to so level it. ’ So that was a week after he paid me that he had called. Then there was another week before I could get to it. So that was two weeks from that date there that I went and level it.”

      . Under LSA-R.S. 9:4821, pertaining to property other than residential, it must be shown that the refusal to cancel a lien was arbitrary and capricious in order to recover attorney’s fees.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    James Paul ASHWORTH, Plaintiff and Appellant, v. Hollie Peavy SMITH et al., Defendants and Appellees.
    No. 7603.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      Stockwell, Sievert, Viecellio, Clements & Shaddock, John S. Bradford, Lake Charles, for plaintiff and appellant.
    John W. King, Baton Rouge, for defendants and appellees.
    Fred A. Book, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. Plaintiff was operating a motorcycle which was struck in a curve by an automobile driven by defendant, Hollie Smith. The State of Louisiana, through the Department of Transportation and Development, is also made a defendant. Judgment was rendered in favor of plaintiff against only defendant Smith in the sum of $75,000. Plaintiff’s suit against the Department of Highways was dismissed. Plaintiff appeals.

The substantial issue on appeal is whether the highway department was negligent.

Plaintiff was operating his motorcycle in an easterly direction on University Drive, a two-lane, two-way paved highway, in Lake Charles, Louisiana. At approximately the same time, defendant, Hollie Smith, was proceeding in a westerly direction on University Drive. The accident occurred when Smith crossed into plaintiff’s lane of traffic, in an attempt to pass another west bound automobile, and struck plaintiff’s motorcycle head-on.

University Drive has a gradual curve at the scene of the accident. The area of the highway where the accident occurred was not designated as a “no passing zone”, nor were signs posted indicating a curve.

The trial judge correctly held:

“Unquestionably, the negligence of Hollie Peavy Smith was a cause of this accident. A disinterested eye witness, Mrs. Charlotte Kaough, testified that he passed her at a high rate of speed in a ‘no passing’ zone about a quarter of a mile from the accident scene, then pulled back into the proper lane of travel momentarily, only to pull out again to pass a second car when the accident happened. She did not see the collision but saw Ashworth’s body hurdling into the air and down.”

Plaintiff first contends the department was negligent in failing to mark the highway where the accident occurred as a “no passing zone.” He argues the passing sight distance was less than the 600 feet minimum required by the department’s manual. The department manual sets forth the following pertinent standards under which no passing zones should be established:

“A passing zone at a horizontal . curve is warranted where the sight distance, as defined below, is less than the minimum necessary for safe passing at the prevailing speed of traffic. . Where center lines are installed and a curve warrants a no passing zone, it should be so marked where the sight distance is equal to or less than that listed below for the prevailing off-peak 85 percentile speed:
Minimum Passing Sight 85 Percentile Speed
Distance (Feet) (MPH)
500 30
600 40
800 50
1000 60
1200” 70

Photographs entered into the record show that the section of highway where the accident occurred is a horizontal curve. A speed study conducted by the department found that the 85 percentile speed was 39.9 miles per hour. The minimum sight distance for safe passing at this section of highway, as provided by the department’s manual, is 600 feet. Mr. Richard Flanagan, an expert traffic engineer, testified for the department that the sight distance at the curve where the accident occurred is far in excess of 600 feet. The pictures corroborate this.

Plaintiff’s contention is based on the premise that in determining sight distance in a curve the department must consider the fact that other vehicles on the highway will obstruct the view of a passing motorist. He introduced the testimony of a traffic expert, Mr. Wilson, that if sight obstruction by a preceding vehicle is considered, the sight distance was only 400 feet.

Mr. Flanagan stated the department does not normally consider movable obstructions in determining sight distances. This is reasonable. To require the department to take into consideration moving vehicles in determining minimum sight distances for no passing zones would result in almost all sections of highways being marked as “no passing zones.” The trial judge correctly held the department was not negligent in failing to consider vehicular sight obstructions as a factor in determining whether a no passing zone was required at the curve in question.

Plaintiff next contends the trial judge erred in holding that the only “T” intersection which the department is required to mark as a “no passing zone” is a high speed intersection.

Mr. Flanagan stated that the department’s manual only requires “no passing zones” at high speed “T” intersections. He testified the intersection near the scene of the accident, a short street into a residential area, was not a high speed intersection. The trial judge did not err in finding that a “no passing zone” was not required because of the “T” intersection.

Plaintiff next contends the trial judge erred in failing to hold the Department of Transportation strictly liable for accidents on highways where the roadway was defectively designed or inadequately marked.

In LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ denied, La., 303 So.2d 182, this court set forth the legal responsibility of the department as to highway accidents as follows:

The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinary prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.” (Emphasis added)

Plaintiffs contention that the department should be held strictly liable for accidents where the roadways are defectively designed or inadequately marked is without merit. Furthermore, the evidence here reveals that the highway where the accident occurred was not defectively designed nor inadequately marked. The expert testimony shows the sight distance at the scene was not below the minimum distance requiring a “no passing zone.” The trial judge did not err in rejecting plaintiff’s contention that the department should be held strictly liable for the accident.

Plaintiff contends last that the award for damages was inadequate.

The trial judge awarded damages in the sum of $75,000. He took into consideration defendant Smith’s inability to pay.

Plaintiff sustained severe injuries as a result of the accident. He suffered a traumatic amputation of his lower left leg at the scene of the accident. He suffered lacerations and multiple fractures over his entire body. He was hospitalized for several months. Three corrective amputations were performed in the hospital. He was fitted with a prosthesis but was never able to use it because of pain and traumatic nerve damage. He continues to suffer pain in his leg because of nerve damage.

In the assessment of the quantum of damages, much discretion is left to the trier of fact. Such awards may be disturbed only if the record clearly reveals an abuse of this “much” discretion. Reck v. Stevens, 373 So.2d 498 (La.1979) and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Although plaintiff suffered damages in excess of $75,000, the trial judge did not abuse his discretion in considering the inability of the defendant Smith to pay. Hurston v. Dufour, 292 So.2d 733 (La.App. 1st Cir. 1974). Defendant Smith was uninsured at the time of the accident. He is a young wage earner. The record amply establishes the award is adequate, considering the inability of Smith to pay.

For the reasons assigned, the judgment appealed is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    HOLIDAY CITY BUILDERS, INC., Plaintiff-Appellant, v. ACADIAN AVIATION CORPORATION, Defendant-Appellee.
    No. 7649.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Robert A. Lecky, of Voorhies & Labbe, Lafayette, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Daniel G. Fournerat, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

Plaintiff, Holiday City Builders, Inc., instituted this action against Acadian Aviation Corporation, seeking the issuance of a permanent injunction prohibiting defendant from interfering with plaintiff’s right of passage across defendant’s property. Defendant moved for summary judgment on the grounds that it had provided plaintiff with an “equally convenient location” for the exercise of the servitude of passage. The trial judge granted defendant’s motion, dismissing plaintiff’s suit. Plaintiff brings this appeal.

The record shows that a right of passage, thirty feet in width, runs along the southern boundary of defendant’s estate. Plaintiff’s estate was granted the benefit of the servitude of passage in a 1936 act of partition. Defendant does not contend that the servitude has prescribed.

Defendant is currently engaged in developing its property into residential lots. Defendant introduced into the record a plat of the proposed residential subdivision which shows that the right-of-way runs through twelve proposed lots. In order to accommodate its proposed plans, defendant closed the right-of-way and staked out lots across it. Defendant informed plaintiff it would have to use Nectar Haven, a fifty-foot paved road, as access to its property. Thereafter, plaintiff instituted this action.

Defendant, relying on LSA-Civil Code Article 748, moved for summary judgment contending that plaintiff was bound to accept a new location of the servitude of passage. Article 748 provides:

“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate. (Acts 1977, No. 514, § 1.)”

The trial judge, apparently finding that Article 748 was dispositive of the issue, rendered summary judgment in defendant’s favor.

Louisiana Code of Civil Procedure Article 966 provides that a mover is entitled to summary judgment if the pleadings, depositions, admissions on file, affidavits, and answers to interrogatories show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

Plaintiff contends the trial judge erred in granting the motion for summary judgment because a genuine issue as to material fact exists as to whether the new passage is an “equally convenient location” as required under LSA-Civil Code Article 748.

In support of the motion for summary judgment, defendant filed the affidavit of J. L. Andrus, the president of Acadian Aviation Corporation, which states that the thirty-foot right of passage prevents defendant from achieving the best use of its property. Andrus also states that the new location of the servitude of passage, Nectar Haven, is within one hundred feet of the old servitude and provides the same access to plaintiff’s property.

In opposition to the motion for summary judgment, plaintiff filed the affidavit of Joseph Anzalone, the president of Holiday City Builders, which states that closing of the old right of passage has impeded the movement of heavy trucks and equipment to and from plaintiff’s property.

In Mashburn v. Collin, 355 So.2d 879 (La. 1977), the Louisiana Supreme Court stated, at page 890:

“. . . where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion.”

In Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4 Cir. 1976), the court stated, at page 542:

“It is well settled in our jurisprudence that a motion for summary judgment is not a substitute for trial. Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973). A mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of a summary judgment and thus deprive the litigant of a trial. Banes v. Prinz, 185 So.2d 50 (La.App. 4th Cir. 1966).” [Emphasis Provided]

In the present action, Mr. Anza-lone stated in his deposition and his affidavit that the new location of the servitude is not suitable for the movement of heavy trucks and equipment to plaintiff’s property. Defendant states in an affidavit that the new location of the servitude provides better access to plaintiff’s property. However, the purpose of summary judgment is not to resolve factual issues. Based on the countervailing affidavit of Mr. Anzalone, we conclude that a genuine issue of material fact exists as to whether the new route of passage, Nectar Haven, is an “equally convenient location” of the servitude of passage, as required by LSA-Civil Code Article 748. Accordingly, the summary judgment in favor of defendant dismissing plaintiff’s suit, is annulled and set aside. The matter is remanded for further proceedings; assessment of costs to await disposition of the merits.

ANNULLED, SET ASIDE AND REMANDED.

      . We annex hereto an excerpt from the plat of survey (Exhibit “D”) showing the old right-of-way and Nectar Haven.

      . See also Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977), writ denied, 346 So.2d 213 (La.1977).


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiff-Appellee, v. Darrell VAN WILLETT, Sr., et ux., Defendants-Appellants.
    No. 7689.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearings Denied Aug. 22, 1980.

      Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Alexandria, for defendants-appellants.
    Bryan Miller, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an expropriation suit instituted by the State of Louisiana through the Department of Transportation & Development (Department) against Darrell Van Willett, Sr., and Betty Jo Cobb Willett under the provisions of LSA-R.S. 48:441, et seq. The Department deposited the sum of $156,-328.00 for the takings and damages. The trial judge awarded $303,331.83 for the land taken, with damages; $500.00 for preparation of exhibits; $2,250.00 in fees for one of the Willetts’ experts and $10,000.00 as attorney’s fees. The Willetts appeal seeking an increase in the award.

The trial judge provided in his written reasons the following general description of the area of the takings:

". . . The portions of defendant’s property involved in this suit are located in the extreme Northern part of Rapides Parish, near the Dresser Valve Plant, an area that is experiencing rapid development as a location for residential subdivisions. The area also has limited commercial potential, associated mainly with the more fully developed subdivisions. The topography is rolling hills with pine and oak trees. Most of the fully developed subdivisions lie to the South and East of defendant’s property, nearer to Alexandria & Pineville, with the land to the North and East of defendant still undeveloped. Thus defendant’s properties lie on the dividing line between the developed and undeveloped lands, and it will be seen that defendant’s properties are in a transitional stage, some partially developed, some undeveloped with a potential for development. . . .”

Defendants’ properties have been expropriated by the Department pursuant to a court order of June 26, 1978 in connection with State Project # 23-01-17, the Tioga-Bently Highway. This project involves the extension of the existing U. S. Highway 71 and U. S. Highway 167 in northern Rapides Parish. From this intersection, a new leg of Highway 71 is being constructed across Willett’s properties to connect the old Highway 71 and the expressway. The Department has designated the tracts of land taken by the numbers 8-1-1; 8-1-2; 8-2; 8-3; 8-3-C-l; 8-4; 8-5; 8-6 and 8-11-6-1.

Parcels 8-1-1, 8-1-2, 8-2 and 8-4 are takings from a tract of land which is being developed by the Willetts as a subdivision known as Timber Trails Unit 7 on the southeast side of U. S. Highway 71. In connection with this subdivision development, the trial judge stated the following facts:

". . . Plats and Restrictive Covenants were filed in the Public Records of Rapides Parish several years prior to the expropriation. At the time of the expropriation, the subdivision was partially developed. Roads had been constructed, some but not all sewers had been laid, and the land was cleared with only selected trees remaining. The restrictive covenants provided that certain lots on Tit-leist Drive were to be used only for commercial and/or multi-family residential, while the lots further back in the subdivision were restricted to use as single family residential lots. . .
“Some of the commercial lots had been sold prior to the expropriation, but no construction had taken place thereon. The subdivision was laid out in such a manner that all traffic going or coming from the residential areas of the subdivision had to pass through the commercial area. The only access to Highway 71 was by Titleist Drive, which passes through the commercial area. Defendant testified that the plan of development specified that the residential lots be sold first to create a captive residential backup. Once enough people lived in the subdivision, then the commercial lots would be developed to serve the residential population. At the time of the expropriation most residential lots in the subdivision remained unsold.”

All the lots in the 8-1-1 and 8-1-2 taking were classified as commercial and/or multifamily residential.

The lots in parcel 8-2 were classified by restrictive covenants as interior commercial lots with the exception of one lot (lot 23) which was classified as a residential lot. Parcel 8-4 was also restricted to use for commercial purposes.

Two of the parcels at issue were located outside the subdivision and these were 8-3 and 8-6. Parcel 8-3 is a partial taking of an undeveloped tract of land to the northwest side of Highway 71 across from the subdivision property.

Parcel 8-6 is a partial taking of a small tract of land a short distance north of the subdivision. It is on the same side of the road as the subdivision and fronts on Highway 71.

Parcel 8-5 is the taking of a part of a narrow utility corridor for which an award of $1,358.00 was made and is not at issue on appeal.

It was stipulated at trial that the compensation due for temporary construction servitudes 8-3-C-l and 8-11-C-l was $8,329.00. This amount is not at issue on appeal.

The Willetts have made numerous assignments of error which we will address in the following order:

(1) The adequacy of the award for the complete taking of:
(a) Lots 1-5 (comprising part of parcel 8-1-1);
(b) Lot 6 (in parcel 8-1-1) and lot 9 (comprising parcel 8-4);
(c) Lots 79-83 (comprising part of 8-1-1) and lot 7 (comprised of 8-1-2 and part of 8-1-1);
(2) The adequacy of severance or consequential damages to the following:
(a) Lots 10-14 (not taken);
(b) Lot 9 (partial taking in 8-4);
(c) Lot 15 (partial taking in parcel 8-2);
(d) Lot 19 (partial taking in parcel 8-2);
(e) Lots 20-22 (partial taking in parcel 8-2);
(f) Lot 23 (partial taking in parcel 8-2);
(g) Lots 24-46 (not taken).
(3) The adequacy of award for the taking of parcel 8-3 and the severance damages to the remainder;
(4) The adequacy of the award for the taking of parcel 8-6 and severance damages to the remainder;
(5) The failure to award compensation for properties allegedly removed from commerce at the Department’s request from October 3, 1978 through the date of the taking;
(6) The failure to award compensation for properties allegedly owned by the Willetts within 40 feet of the centerline of the present Highway 71 and taken by the Department for the current project but not within the area of use over which the Department enjoys a St. Julien servitude;
(7) The failure to award expert witness fees to Darrell Van Willett, Sr.;
(8) The adequacy of the award for preparation of exhibits;
(9) The adequacy of the award of expert witness fees to Perry E. Futrell;
(10) The adequacy of the award of attorney’s fees to the Willetts.

The errors assigned by defendants with regard to the adequacy of awards for the taking of the various parcels and the severance damages involve many of the same legal principles, particularly those dealing with the credibility and weight of expert testimony and the discretion of the trial court in its fact finding. We will therefore set forth the general principles regarding the weight and credibility to be given to the experts’ testimony and reports and the trial court’s discretion in making its determination of facts.

Opinions as to the value expressed by experts are not binding on the trier of fact since they are not ordinarily conclusive and are generally regarded as advisory in character. The purpose of such opinions is to assist the court in its effort to determine the ultimate facts. State, Department of Highways v. McPherson, 259 So.2d 33 (La.1972).

The trier of fact is not required to accept or reject the testimony of each witness in toto. The trial judge is not required to accept the precise amount of any expert. He may instead make an award in an amount to which no expert testifies since the trial court is empowered to evaluate the weight to be given to each witness’ testimony, as well as to make factual determinations as to which of the facts relied upon by the witnesses relevantly influences market value and severance damages. Greater Baton Rouge Airport District v. Carrick, 258 So.2d 640 (La.App. 1st Cir. 1972); State, Dept. of Hys. v. William T. Burton Indus., Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969), writs den., 222 So.2d 67 (La.1969).

The trial court may not, however, substitute its own opinion for that of the experts who testified at trial (i. e., completely disregard such testimony) when such testimony is well grounded from the standpoint of good reasoning. State, Dept. of Highways v. Eubanks, 345 So.2d 533 (La.App. 3rd Cir. 1977); State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970).

The effect given to expert opinion testimony is governed by the weight such testimony is accorded by the trier of fact. This weight is determined by the professional qualifications and experience of the expert, the facts and studies upon which the opinion is based and, when land appraisals are involved, the familiarity with the locality. State, Department of Highways v. McPherson, supra.

Also to be considered in evaluating weight to be given is the possible bias of the witness in favor of the side for whom he testified. (In the present case, one of the defendants, Darrell Van Willett, Sr., and a close associate and relative of Willett, Perry E. Futrell, testified as defendants’ expert.) Though an owner’s testimony in the capacity of an expert may be considered, it should be cautiously viewed since the owner is interested in the outcome of the lawsuit. Neither should such testimony be rejected merely because the witness is a party. State, Department of Highways v. McPherson, supra; State, Department of Highways v. Willett, 322 So.2d 383 (La.App. 3rd Cir. 1975).

Finally, it is well settled in expropriation suits that much discretion is granted to the trial court in the evaluation of and weight to be given to the testimony of each expert witness. The findings of fact by the trial court will not be disturbed on appeal unless such findings are clearly erroneous. Greater Baton Rouge Airport District v. Carrick, supra.

VALUE OF THE TAKING OF LOTS 1-5 (In 8-1-1)

Lots 1-5 of the Timber Trails Unit 7 subdivision comprise part of parcel 8-1-1. These lots front on Highway 71 and have their highest and best use as commercial property. All of these lots are interior lots. These lots have no direct access to the residential subdivision lots and would be dependent for business on traffic using Highway 71. There were no existing structures on these lots when taken.

The trial judge, after analyzing the appraisal reports in evidence, including comparable sales used by the experts who testified, found the market value of lots 1-5 to be $1.50 per square foot. Since the total area taken was 45,872.2 square feet, the total award for lots 1-5 was $68,808.30.

The defendants claim this award is inadequate. Defendant Willett and Percy Fut-rell who testified for defendants placed a value on the lots of $1.85 per square foot. They reached this value using three previous sales in the subdivision and a final district court judgment valuing a lot in the same subdivision previously expropriated from another owner.

Gene Cope who testified as an expert for the Department considered the three previous .'sales, plus a number of other sales in Rapides Parish. Cope reached a value of $1.56 per square foot for these lots.

M. C. Gehr, also a Department expert, reached a value of $1.15 per square foot based upon a number of comparable sales and discounting for a one-day sale. This discounted value of $1.15 is questionable because it does not allow a reasonable time for sale. State, Department of Highways v. Mouledous, 200 So.2d 384 (La.App. 3rd Cir. 1967). Gehr stated, however, that before discounting he assigned a value of $1.25 per square foot.

Our review of the record does not reveal that the trial judge was clearly wrong in his valuation. The trial judge, in considering the evidence before him, did not accept or reject in toto the testimony of any one witness, but instead evaluated the weight of the testimony and reached a conclusion which is not clearly in error. Greater Baton Rouge Airport District v. Carrick, supra; State, Dept. of Hys. v. William T. Burton Indus., Inc., supra. The trial judge is within the range of the expert testimony offered.

VALUE OF THE TAKING OF ALL OF LOT 6 AND THE VALUE OF THE PARTIAL TAKING OF LOT 9 (8-1-1 AND 8-4)

Lot 6 is located in parcel 8-1-1 and is on the corner of Highway 71 and Titleist Drive. The trial court determined that the value of lot-6 was $1.68 per square foot. The highest and best use was commercial.

Lot 9 was the subject of partial taking designated as parcel 8-4. This lot is also on the corner of Highway 71 and Titleist Drive opposite from lot 6. The trial judge also placed a value of $1.68 per square foot on lot 9. The highest and best use was also commercial.

Defendants seek an increase in the awards. Defendants’ experts (Willett and Futrell) determined that lots 6 and 9 as comer lots had a value of $2.22. This was based on a 20% upward adjustment from the value assigned to the interior lots 1-5.

Cope, however, was of the opinion that lots 6 and 9 were less valuable than lots 1-5 and placed a value of $1.50 per square foot on these lots. Cope testified that he found these lots were oriented to Titleist Drive rather than to Highway 71 and were thus less valuable than lots 1-5. Gehr’s value for lot 6 was $1.15 per square foot (the discounted figure) and for lot 9 was $1.25 per square foot (also a discounted figure).

The trial judge again evaluated the testimony of the various experts and reached a conclusion not precisely that of any of the experts, but within the range of values assigned by them. We find no manifest error in the trial court’s square footage value.

In determining his award, however, the trial judge used an erroneous figure for the number of square feet in lot 6 (8,440 square feet). Both plaintiff and defendants agree that the proper figure is 9,494.2 square feet. Thus, the judgment will be amended to reflect an increase from $14,179.20 to $15,-950.26 for lot 6. The award of $13,040.60 for the partial taking of lot 9 will be affirmed.

VALUE OF THE TAKING OF LOTS 79-83 (8-1-1) AND LOT 7 (COMPRISED OF 8-1-2 AND PART OF 8-1-1)

Lots 79-83 comprised part of parcel 8-1-1. Lot 7 comprised all of parcel 8-1-2 and part of 8-1-1. These interior lots are all located on Titleist Drive and have their highest and best use as commercial. The trial judge concluded that these lots have a value of $1.30 per square foot, accepting the value of Cope.

The defendants’ experts both placed a value of $1.45 per square foot on these lots. Defendants contend the trial court erred in accepting the value assigned by Cope. They point out that Cope made an error in calculation because he used incorrect numbers for the square feet contained in three of the comparables he used. Defendants argue that he miscalculated his value for the lots in question. Additionally, defendants contend Cope is in error because in one other comparable he made a 4% error by subcontracting 20% instead of dividing by 120% to adjust the comparable which was a corner lot.

Cope testified at trial that he would have reached a higher figure using the correct square foot measure of the three compara-bles complained of, if these had been the only comparables used. The “4%” error complained of only pertains to Cope’s calculation in the adjustment of only one comparable. The errors complained of do not materially affect the ultimate valuation realized by Cope.

Furthermore, we note that Gehr, according to his testimony, placed a value of $.70 or $.80 per square foot on these lots before discounting.

The trial court’s conclusion of $1.30 per square foot for these lots is not clearly erroneous. It is within the range of the expert testimony, and we find no manifest error in the trial court’s valuation for lots 7 and 79-83 for a total of $72,810.14.

SEVERANCE DAMAGES (GENERAL RULES)

In the recent case of State, Department of Transportation & Development v. Willett, 383 So.2d 1344 (La.App. 3rd Cir. 1980), this court set forth the following language regarding damages resulting from expropriation:

“In any discussion of the issue of damages arising from an expropriation, it is vital to a proper understanding of the outcome that the terms employed be defined. In offering these definitions we note that legal concepts seldom fit precisely into sharply defined terms. Our intention is solely to add clarity to this opinion, and hopefully reflect what is the genera] correct understanding of the terms in light of the principles established in our jurisprudence. The term ‘severance damage’ describes those com-pensable injuries which flow from the partial expropriation of a parcel, specifically, the diminution in value of the land remaining to the condemnee. The term ‘consequential damages’ has been used broadly to describe any damages resulting in a non-taking situation whether compensable or not. The term ‘consequential damage’, for our purpose, refers to compensable special injuries to a parcel from which there was no taking, which flow from the effects of the public work or project, which injuries particularly affect his property only and which are not sustained by the neighborhood generally. And finally, the term ‘incidental damages’ refers to the general loss or. inconvenience experienced by the property owner and the public generally which is a cost that every citizen in organized society must pay to maintain and improve that society; in other words, ‘damna abs-que injuria.’
“The measure of severance damage is the subject of LSA-R.S. 48:45S(B), supra, which clearly sets forth that where there is a partial taking, the measure of damages to the remaining parcel is the difference between the value of the parcel immediately before the taking, without taking into effect the public works or project; and, the value of the parcel immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.”

LOTS 10-14 (SEVERANCE DAMAGES)

Lots 10-14 are located on the north and east side of Titleist Drive. These lots were not taken in the expropriation. They did, however, sustain consequential damages. Prior to the expropriation, the highest and best use of these lots was commercial. They were accessible to traffic entering and leaving the subdivision. The taking had the effect of severing the lots from the subdivision resulting in a change in the highest and best use from commercial to multi-family residential.

The defendants dispute the amount awarded by the trial court for the consequential damages to these lots. Willett found severance damages to be $.95 per square foot; Futrell found the damages to be $.94 per square foot.

The Department’s expert, Cope, found damages of $.30 per square foot for lots 10, 11 and 13. He found damages of $.25 per square foot for lots 12 and 14. Gehr did not testify regarding these lots.

The trial judge found that lots 10-14 suffered damages of $.25 per square foot for a total of $12,958.28. The trial judge did not assign a before and after value to these lots. The damages to lots 10, 11 and 13 awarded by the trial judge were less than any of the estimated damages of any of the experts who testified.

Under these circumstances, we conclude that the trial court erroneously substituted his own opinion for that of the experts in the assessment of consequential damages for lots 10, 11 and 13. Therefore, the award for these lots must be amended. State, Dept. of Highways v. Eubanks, supra; State, Department of Highways v. Thurman, supra.

Since Cope’s figure is the lowest expert estimate of damages, the trial court’s award must be increased by the extent of the difference. State, through the Dept. of Highways v. Tate, 355 So.2d 1087 (La.App. 3rd Cir. 1978).

The damages are computed as follows:

Damages Per
Square Feet Sq. Ft.
Lot 10 9,401.5 x $.30 $ 2,820.45
Lot 11 9,229.1 x .30 2,768.73
Lot 13 9,123.8 x .30 2,737.14
$ 8,326.32

This sum ($8,326.32), together with the undisturbed award for lots 12 and 14 ($6,019.68), is $14,346.00. We will award an increase of $1,387.72 which is the difference between the trial court’s figure of $12,-958.28 and $14,346.00.

LOT 9 (SEVERANCE DAMAGES)

Lot 9 was the subject of a partial taking. We have already discussed the location and value of the lot and here deal only with severance damages. The remainder of lot 9 is a small, nearly triangular parcel with an area of only 1,549.8 square feet out of a total before the taking of 9,312.1 square feet. The trial court awarded damages of $.25 per square foot for a total of $387.45. The damages per square foot are based on the trial court’s reasoning that the remainder of lot 9 should be joined to lot 10 as one lot. Thus, the lot 9 remainder was damaged by the same amount as lot 10.

We have previously determined that the trial court erred in its assessment damages for lot 10, 11 and 13 since it was below the estimate of any expert. We, likewise, find that the trial court erred in severance damages award for the remainder of lot 9 since it was below the estimate of any expert. Cope estimated that the remainder of lot 9 was damaged by $1.10 per square foot (a total of $1,704.78). This was the lowest estimate of any expert. The award will be increased by the difference between the trial judge’s award of $387.45 and $1,704.78 which is $1,317.33. State, through the Dept. of Highways v. Tate, supra.

LOT 15 (SEVERANCE DAMAGES)

Lot 15 is a commercial lot on the north and east side of Titleist Drive. A small portion of Lot 15 was taken as part of parcel 8-2. The trial judge valued the lot before taking at $1.20 per square foot. The area taken was valued then at $803.52. This amount is not disputed.

The trial judge determined that the remainder was damaged for the same reasons that he gave for his assessment of damages to lots 10-14. The trial court awarded $.25 per square foot for a total of $3,221.00. Thus, the trial judge’s after value was $.95 per square foot.

Defendants contend that this award was erroneous as it was lower than any of the expert’s estimates. The after value assigned by the trial judge is higher than any of the estimates given by the experts. Wil-lett estimated an after value of $.48 per square foot; Futrell estimated $.54 per square foot; Cope assigned $.80 per square foot and Gehr estimated $.25 per square foot. We conclude that we must reduce the after value assigned by the trial court to the highest after value assigned by any of the experts which was $.80 per square foot assigned by Cope. The after value then is $10,310.48. Using this figure as the after value and the trial court’s before figure (which is not disputed and is clearly within the range of the expert estimates of before value), the severance damages to lot 15 is $5,155.24. Since this exceeds the trial court award by $1,933.22, the judgment must be increased by that amount. State, through the Dept. of Highways v. Tate, supra.

LOT 19

Lot 19, a commercial lot comprising part of parcel 8-2, was the subject of a partial taking. Lot 19 was a rounded corner on Titleist Drive. A little less than 50% of the lot was taken, leaving a remainder of 11,169.9 square feet. The trial judge awarded $1.55 per square foot for the property taken for a total of $16,252.22. This amount is not in dispute.

The trial judge found that the lot remainder was of such size that it suffered no severance damages.

The defendants claim this was error since all experts who testified found severance damages. We agree. As stated above, the trial judge may not substitute his own opinion for that of the expert witnesses. State, Dept. of Highways v. Eubanks, supra.

Cope gave the highest estimate of value for the remainder after taking of $.50 per square foot or a total of $5,584.95. Using this figure as the after value and the trial court’s before taking figure of $17,313.34, the severance damage is $11,728.39. The judgment of the trial court will be increased by this amount.

LOTS 20-22

Lots 20-22, which were commercial, were the subject of a partial taking (27,786.6 square feet) as parts of parcel 8-2. The trial judge concluded that these lots had a value before taking of $1.20 per square foot. Thus he awarded a total of $33,343.92 for these takings. This amount is not disputed. The remainder total area was 17,669.70 square feet. The trial judge concluded that the severance damages suffered was equivalent to $.20 per square foot (a total of $3,533.94). The after value was thus $1.00 per square foot, or a total after value of $17,669.70.

The defendants contend this award for severance damages is in error as it is below the estimates of any expert. We agree.

The highest after value assigned by any expert to lot 20 was $.38 per square foot (Futrell); the highest to lots 21 and 22 was $.41 per square foot (Willett), giving a total for all three lots of $7,085.53. Using this as the after value figure and the court’s before taking value of $21,203.64, the severance damage to lots 20-22 is $14,118.11. The judgment will then be increased by $10,584.16.

LOT 23

Lot 23 is a residential lot located on the north side of Titleist Drive. A small portion of this lot was expropriated for which the trial judge awarded $.65 per square foot for a total of $537.16. This award is not contested. The trial judge found that this lot had incurred no severance damage because the taking was so small that it did not adversely affect the lot’s value.

Defendants argue the trial court erred since all the experts testified that lot 23 suffered severance damage.

All of the experts indicated that lot 23 would suffer severance' damage due to the proximity of the highway with the accompanying noise, fumes and vibration from the traffic.

We agree that the trial judge erred. If noise and vibration due to presence of a road cause diminution to the value of the remainder of property actually taken, severance damages are to be awarded even though such damages are not peculiar to the complaining owner, but rather are suffered by the neighborhood generally. State, Department of Highways v. Garrick, 256 So.2d 111 (La.1971); State, Department of Transportation & Development v. Willett, supra.

The value of the remainder before taking as found by the trial judge was $5,554.06. The highest value assigned by any expert after the taking was $4,875.00 (a unit value of $.65 per front foot). We will award the difference of $679.06 as damages to lot 23.

LOTS 24-46

Lots 24-46 are residential lots along the north side of Titleist Drive. None of these lots were taken in whole or in part. The trial judge concluded that since these lots were not taken, under Reymond v. State, Department of Highways, 231 So.2d 375 (La.1970), the defendants are not entitled to damages resulting from the project absent a showing of special and peculiar damages.

The defendants argue that Reymond does not apply because lots are not separate properties, but part of a single property, even though they are to be sold as subdivision lots. They argue that the properties are wholly contiguous with a unity of use as well as ownership. Defendants contend that since all experts indicated that the project would damage the value of these properties and the properties are properly considered one remainder, they are entitled to severance damages.

This argument is without merit.

The basis of all the appraisals was that the property within the subdivision treated by the experts in their appraisal reports were considered as separate parcels in accordance with the subdivision plat and the manner in which the owners dealt with the property. The owners unquestionably intended the property to be a subdivision. For the owners to contend that these lots should be treated as a single, contiguous tract of land with the lots involved in the taking is inconsistent with the entire tenor of this expropriation proceeding. Under these circumstances, we will treat these lots in separate parcels. The case is controlled by the very recent ease of State, Department of Transportation & Development v. Willett, supra, in which this court refused to award damages to the landowner for subdivision lots which were not taken or physically invaded, though damages were awarded for these lots which were subject to actual partial takings. The circumstances in that case were similar to the situation now before us.

The damages resulting from traffic noise, fumes and vibration are not peculiar to the property of defendants. The damages suffered by lots 24-46 are incidental since they were not taken and accordingly no damages are allowable. The trial judge was clearly correct in refusing to award damages on these lots.

PARCEL 8-3 (THE VALUE OF TAKING AND SEVERANCE DAMAGES)

The trial judge’s reasons provide the following description of parcel 8-3:

“Parcel 8-3 involves a taking in full ownership of 0.094 acres from a parent tract of 29.3 acres. The parent tract lies on the west side of U. S. Hwy 71, and is undeveloped as of this date. The front portion of the tract has had some selective clearing of trees, but the main portion of the tract is heavily wooded, and lies away from the highway.”

The trial judge found that the property taken had a value of $1.00 per square foot. Thus, he awarded $4,094.64 for parcel 8-3.

The defendants argue that such an award was erroneous because it was too low. They argue that the trial judge should ignore the appraisal made by the Department’s experts, and consider only the expert appraisals of the defendants.

Our review of the record does not reveal that the trial court erred in its valuation of the property. Cope, after analyzing compa-rables valued the property at $.85 per square foot. Gehr valued the property at $.70 per square foot. Both Willett and Fut-rell valued the property at $1.50 per square foot. The trial judge was within the range of the expert estimates. The trial judge evaluated the weight to be given the experts and made a determination well within his discretion, not accepting or rejecting in toto the testimony of any of the experts. Greater Baton Rouge Airport District v. Carrick, supra; State, Dept. of Hys v. William T. Burton Indus., Inc., supra.

The trial judge awarded no severance damages for the remainder of the tract from which parcel 8-3 was taken. The defendants argue that this failure to award severance damages for the remainder was error.

The trial court made the following observations about the effect of the highway project on the tract:

“The tract in question has some frontage on U. S. 71 which is presently a main artery for the flow of traffic. After the new highway project is completed the section of Hwy. 71 fronting defendants’ property will enjoy the status of a connector road between U. S. 167 and 71.”

The essence of the trial court’s finding, that there was no severance damages, is that mere diversions of traffic is non-com-pensable absent a showing that the value of the remaining property is reduced. Also, the trial court found that the defendant made no showing that access to his property had been restricted. These conclusions were supported by the testimony of the Department’s experts.

Cope testified that because of the tract’s prominence in the area and the position that it had with respect to the new intersection would cause the property to retain the highest and best use with the same level of value in the after status despite projected reduction on traffic on old Highway 71. Gehr testified that the property would retain visibility and would suffer no diminution in value.

Defendants argue that the property has sustained substantial severance »damages because of:

“(a) limitation of access;
(b) imposition of median divider, resulting in the little frontage remaining, being accessible only in the outbound traffic lane;
(c) increased distance from relocated roadways;
“(d) loss of frontage and visibility;
(e) virtually total diversion of traffic because of the fact that old highway 71 will become merely a local connector road between the two main traffic arteries, as opposed to being the main traveled roadway.”

Severance damages for impositions of medians, limitations of access, and diversions of traffic will not be awarded unless the defendants bear the burden of proof that the remainder has been reduced in value by the project. State Department of Highways v. Soileau, 315 So.2d 384 (La.App. 3rd Cir. 1975).

The trial court found that defendants did not prove that the property was diminished in value by the project, but rather that the property would continue to have access, visibility and that diversion of traffic would not be compensable.

The defendants argue that the trial judge improperly allowed general benefits to offset the damages to the property. We do not agree. Although the trial judge referred to possible benefits from the project, the basis of the trial court’s decision is defendants’ failure to prove that there was lack of visibility, a lack of access and that the diversion of traffic would reduce the tract’s value. Expert testimony presented by the Department indicated that the project would not harm the value of the defendants’ property.

We conclude that there was no manifest error in the refusal to award severance damages for the remainder of the tract from which parcel 8-3 was taken.

PARCEL 8-6 (VALUE OF TAKING AND SEVERANCE DAMAGES)

Parcel 8-6 is a taking of a very small triangle of 217.8 square feet from a parent tract of 1.631 acres. It is located on the southeast side of Highway 71 and is across the highway from the northern end of the tract from which parcel 8-3 was taken.

The trial judge found that the parent tract had commercial potential, but was less valuable than it otherwise might be because it was an odd shaped (triangular) tract. The trial judge awarded $1.00 per square foot for this taking for a rounded total of $220.00. The defendants argue that this award is erroneous as it is too low. Their experts testified that the tract had a value of $1.81 per square foot (Willett) and $1.82 per square foot (Futrell). The defendants owned a sewer servitude extending through adjoining property prior to the taking. No sewer had been installed, however. This sewer servitude from parcel 8-4 extended across the property of a John Girlinghouse to the tract in question (8-6). The Department took this servitude in connection with the project. The value of the servitude was stipulated to be $400.00.

Cope testified that the value of parcel 8-6 was $.75 per square foot. Neither expert took into account that there had existed a sewer servitude across the property previously belonging to Mr. Girlinghouse. Cope stated that had he been' aware of such a servitude, his value would have been altered.

It is apparent that the trial court took into consideration the availability of sewerage since he valued the property at $1.00 per square foot. We find that the trial court did not err for he did not accept in toto the analysis of the Department’s experts but did give some weight to that portion of their analysis consistent with the weight it deserved. Furthermore, the valuations of the defendants’ experts are not binding on the court, but rather are advisory. State Department of Highways v. McPherson, supra.

We now turn to the question of severance damages to the remainder of parcel 8-6. The trial judge found that the remainder of the tract from which parcel 8-6 was taken was not damaged by the taking.

All of the experts who testified regarding the loss of the servitude for the sewer stated there would be some damage. Cope, who before trial was unaware of the servitude, did not place a dollar figure on this damage. He felt that the property was otherwise undamaged by the taking. Gehr stated that the property would be undamaged by the taking.

Willett and Futrell both testified that the value would be diminished by loss of the servitude. However, the extent of the loss due to loss of the servitude was not distinguished from the losses attributed to loss of traffic, reduction of highest and best use and temporary loss of commercially acceptable access during the period of construction. On oral argument counsel for defendants pointed out that defendants’ experts added $.35 per square foot for lots which had sewers installed. For the 8-6 remainder, however, no sewer was installed. The reports of the defendants’ experts do not reflect an estimate of the severance damages for loss of the sewer servitude.

As pointed out above, severance damages for diversion of traffic will not be awarded unless the defendants bear the burden of proof that the remainder has been reduced in value by the project. State Department of Highways v. Soileau, supra.

The trial judge found, and our review of the record confirms, there is no manifest error, that no damages resulted from the taking due to change in traffic patterns.

The defendants may have suffered some damage due to loss of the sewer servitude, but they failed to produce evidence showing the amount of such loss. Defendants have therefore not proved to a legal certainty the damages to the property. Therefore, no award can be made. State, through the Dept. of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir. 1979).

TAKING OUT OF COMMERCE

Defendants contend that the trial court erred in failing to make an award for the removal of property from commerce from October 3, 1972 through the date of the taking.

In October of 1972, Darrell V. Willett, Sr., received a letter dated October 3, 1972 from Richard Currie, Right of Way Engineer for the Department of Highways (now Department of Transportation and Development). In this letter Currie requested “that no development be made on lots 1 through 7, 9, 16 through 18, 20 through 22 beyond a line 125 feet from the property line and lots 79 through 88." This request was made because the Department anticipated that these areas would be required for the proposed highway construction. A similar letter regarding nearby properties was received by Willett’s son. In this letter, the son was informed that the Department would take the position that no compensation was due for improvements begun after the owner had knowledge of construction to be done with the area taken by the Department. Willett testified that as a result of this letter he did nothing with these lots and they lay dormant from the date of the letter until the taking.

The defendants seek to recover damages alleging that the Department’s effectively prohibiting use of this property for nearly six years. They contend this prohibition resulted in a loss for which they should be compensated.

The trial judge rejected this claim because the award for the lots “taken out of commerce” were the market value on the date of the actual taking, not the date of the letter from the Department. The trial judge was of the opinion that to give damages for “taking out of commerce” would be to award defendants twice for the same' item.

The defendants contend that there would be no double recovery because they may have been able to rent the property, thus receiving an annual return on their investment and a capital gain. We regard this as mere speculation. No evidence was offered that the property would, with legal certainty, provide a rental or other income. The estimate of defendants of a loss of income of 10% for two years and 12% for four years is speculative at best and does not establish a compensable loss.

The trial judge did not err in refusing to award damages on this claim. While it is true that the owner must be compensated to the full extent of his loss, La.Const.1974, Art. I, § 4, and that he must be put in as good a position pecuniarily as he would have been had his property not been taken, State, through Dept. of Highways v. Champagne, 371 So.2d 678 (La.App. 1st Cir. 1979), he will not be awarded compensation based on mere speculation. The defendants have not borne the burden of proof to show the extent of the alleged loss.

ALLEGED APPROPRIATION OF CERTAIN PROPERTY WITHIN 40 FEET OF OLD HIGHWAY 71

The Willetts owned property fronting on Highway 71. A portion of old Highway 71 will be used for the new highways. Maps indicate a right of way 80 feet for Highway 71 which is a two-lane paved highway. The Willetts contend that the Department did not have a recorded interest in the purported 80 foot right of way upon which the Willett properties fronted. The defendants concede that the Department has acquired a St. Julien servitude over the paved portion of the highway which has been used since about 1930. They, therefore, make no claim for compensation for the paved portion of the roadway, conceding that prescription would bar such a claim.

By reconventional demand, however, the Willetts contend the Department does not own any of the area outside the maintained portion of the roadway. They contend they should be compensated for the non-paved portion within the 80 foot right of way which will be used for the new highways. The Willetts seek to establish that the maintained portion is only the paved portion of the roadway. Alternatively, they seek to establish that the maintained portion includes only the shoulders and paved portion or the ditches on either side of the roadway, the shoulders and the paved surface.

In support of this claim, Willett testified that he had maintained the property within 40 feet of the highway centerline up to the shoulder of the road since 1970, the year he acquired the property.

Willett and Futrell testified that by use of a tape measure they computed the area of land in dispute. Willett and Futrell measured from the alleged centerline at 100 foot intervals on both sides of the road along the Willetts’ property expropriated by the Department and by this measure, computed the area of the land in dispute. The record does not reflect that either Wil-lett or Futrell are experts in the field of surveying land.

The trial judge rejected the accuracy of these measurements and held that the Wil-letts failed to prove their case. We agree with the trial judge’s conclusion.

During the trial, the trial judge informed counsel that a survey of this disputed area was needed. The trial judge stated that he would appoint a surveyor to make such a survey. Apparently no surveyor was appointed nor did defendants furnish such a survey, as none appears in the record. Even assuming that some of this area may be owned by the Willetts, we do not have the benefit of a survey from which to accurately compute any award that may be made. We note that maps filed in evidence show that the highway is curved at all points along the property of defendants fronting on Highway 71. The maps do not reflect the width of the shoulders or ditches that are present. We thus, assuming the Willetts proved ownership, cannot with any accuracy describe that property for which he would be entitled to compensation and we cannot accurately determine the area taken, if any, to fix any compensation that may be due.

The failure of the Willetts to bear the burden of proof justifies the trial judge’s refusal to award compensation for this claim. We find no manifest error by the trial judge.

EXPERT WITNESS FEES FOR WILLETT

Defendants argue that the trial court erred in failing to award witness fees to Willett for his appraisal and testimony. Defendants argue that since Willett testified as an expert, he should be awarded fees for his work. Defendants contend that since the landowner must be compensated to the full extent of his loss, La.Const.1974 Art. I, § 4, he is entitled to a reasonable fee for work done in preparation of his own expert testimony.

This argument is without merit. This issue was previously presented in the case of State, Department of Highways v. Willett, 322 So.2d at 389, supra. In that case, this court stated:

". . . Landowners, who incidentally are expert appraisers, are not entitled to fees for appraising and testifying in court proceedings involving their own properties. . .

This has not been changed by the 1974 Constitution, nor has Willett otherwise proved that he suffered pecuniary losses by acting as his own expert.

The trial judge did not err in refusing to award expert fees to Willett for his own work.

COSTS FOR PHOTOGRAPHIC AND OTHER EXHIBITS

In making an award for exhibits prepared for defendants, the court made the following observation:

“Defendant seeks compensation for photographs and exhibits submitted to the court. The photographs and most exhibits were of little aid to the court, and the request for compensation for these items is denied.
“However, the large ‘Before’ and ‘After’ exhibits prepared by Mr. Loren Wil-lett were of great aid to the Court in making its decision. I award $500.00 to defendant for expenses incurred in producing these exhibits.”

Defendants seek an increase in this award.

When photographs are of assistance to the court, the landowner is entitled to have his photographer’s expert fee taxed as costs. State, Dept. of Highways v. Mims, 336 So.2d 24 (La.App. 3rd Cir. 1976), writs den., 339 So.2d 16 (La.1976).

In this case, the trial judge was of the opinion that the photographs and most exhibits were of little value. We find no manifest error in such a determination.

The court did find two exhibits of great value in making his decision. The expert who prepared the exhibits charged the defendants $900.00. It is well settled that the setting of expert fees is a matter within the sound discretion of the trial judge. Wm. T. Burton Industries, Inc. v. Busby, 348 So.2d 1328 (La.App. 3rd Cir. 1977), Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La.App. 4th Cir. 1971). The trial judge apparently felt that $900.00 was excessive and awarded $500.00 for these exhibits. We find the trial judge did not abuse his discretion.

EXPERT FEES FOR FUTRELL

The trial court awarded $2,250.00 as expert witness fees for Perry E. Futrell.

The defendants complain that this award is insufficient and should be increased given the size of the award, the number of hours spent in preparation and the amount of property involved.

It is well settled that the trial judge has much discretion in setting expert witness fees. Wm. T. Burton Industries, Inc. v. Busby, supra.

The trial judge was of the opinion that many items contained in Futrell’s report were related to claims not compensable and that the report was not of great aid to the court. Our review of the record does not reveal manifest error in the award, therefore, we will affirm the award.

ATTORNEY’S FEES

The trial judge awarded defendants $10,-000.00 for attorney’s fees. On appeal, defendants argue that since this is less than the 25% of any excess award made, which was the amount agreed between defendants and their counsel, the trial judge erred in awarding only $10,000.00.

This argument is without merit.

LSA-R.S. 48:453(E) reads as follows:

“Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court."

This provision gives discretion to the trial court in making an award of attorney’s fees. Such discretion cannot be limited by agreement between claimants and their attorneys. The fact that a 25% ceiling has been set by the legislature does not mandate that an award of 25% of .the excess award must be awarded in attorney’s fees. Such a ceiling means the trial judge may award reasonable fees which may not exceed 25% of the excess awarded.

Since we have awarded an increase of approximately $30,000.00, we will increase the award of attorney’s fees by-$2,100.00 to give a total award of $12,-100.00.

For the reasons assigned, the judgment of the trial court is amended to increase the award to the sum of $332,674.34, subject to a credit for the amount deposited by the State of Louisiana, through the Department of Transportation & Development ($156,-328.00), and to increase the award of attorney’s fees to the sum of $12,100.00. The judgment of the trial court is further amended to fix all costs of the trial court against the State of Louisiana, through the Department of Transportation & Development, pursuant to LSA-R.S. 13:5112, in the sum of $539.57. In all other respects, the judgment of the trial court is affirmed.

Costs of this appeal are fixed in the amount of $577.50 and are taxed to the State of Louisiana through the Department of Transportation & Development.

AMENDED AND AFFIRMED.

      . In Tate, the trial court’s award exceeded the highest expert estimate of damages. This court reduced the award to the highest expert estimate of damages. We hold that the converse is true. When the trial court award damages that are less than the estimate of any expert, the award will be reduced to the lowest reliable expert estimate.

      . The remaining lots comprising parcel 8-2 were lots 16, 17 and 18. The trial court awarded $48,995.00 for the taking of these lots. This award is not contested on appeal.

      . Prior to trial a correction deed was recorded in an attempt to indicate the Willetts’ ownership of this property as it had been omitted in previous transfers to them, apparently since it had been assumed the Department owned an 80 foot right of way.


author: SAMUEL, Judge.

text:
    VERSAILLES ARMS APARTMENTS v. Everett GRANDERSON, Jr.
    No. 10371.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.

      See also, La.App., 377 So.2d 1359.
    Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for plaintiff-appellee.

      Mark A. Moreau, New Orleans, for defendant-appellant.
   SAMUEL, Judge.

Alleging nonpayment of rent and sub-stantia] violations of and noneompliance with the provisions of his lease agreement, plaintiff, Versailles Arms Apartments, filed this rule to evict the defendant, Everett Granderson, Jr. Defendant received rent subsidies from the United States Department of Housing and Urban Development, and the rule alleged he did not vacate the premises in spite of proper notice to him under both Louisiana law and Housing and Urban Development regulations.

Defendant answered, alleging plaintiff wrongfully refused his tendered non-subsidized portion of his rent on the incorrect assumption he had not been recertified and therefore could not participate in the subsidy program under Section 8 of the United States Housing Act of 1987. Defendant also alleged he has not been afforded the hearing prior to eviction required by unspecified federal regulations.

Following trial there was judgment ordering defendant evicted. Defendant appealed. Several procedural difficulties required remand by this court for completion of the record. A second hearing was held in the trial court to complete the record, and the case is again before us for decision.

On December 1,1976 the parties executed a lease with a one year term ending November 30, 1977. The total rent was $177 per month for a three bedroom apartment, and the Department of Housing and Urban Development was to pay all rent except $27 per month. The lease provided the rental and subsidy were subject to change because of changes in family income and family composition in accordance with HUD’s “schedules and the criteria.” Defendant, as tenant, agreed family income and composition were substantial and material obligations of the lease with respect to both the amount of his rent and his right to oecupan-cy. He further agreed to recertify his income yearly and to be bound by rental changes dictated by changes in his income.

The lease automatically renewed itself for additional one year periods unless terminated by the parties. Thirty days’ written advance notice was required to terminate. Plaintiff, as lessor, agreed not to evict defendant unless it complied with local law and with a contractual obligation to give written notice stating the grounds for eviction and advising defendant he had five days to respond to plaintiff’s notice.

Defendant certified his income at $65 per month and certified his two daughters lived with him. The certification of three family members formed the basis for subsidized rental of a three bedroom apartment under HUD guidelines. The record reflects the guidelines provide that a single tenant is entitled to only a one bedroom subsidized apartment in order to make adequate subsidized housing available to as many larger families as possible.

On several occasions plaintiff requested defendant to recertify his income and the number of persons in his family, which he had not done at the end of the initial one year period of his lease. Plaintiff advised defendant that noncompliance would result in cancellation of his rent subsidy. Defendant ignored these requests.

On July 18,1978 plaintiff notified defendant his noneompliance caused an end to the subsidy and advised him his rent would be collected on a non-subsidized basis beginning August 1, 1978. Two days later defendant furnished plaintiff with a notarized statement saying he was divorced and his daughters lived with him on weekends and during school vacations.

On August 4, 1978, plaintiff returned defendant’s check for $27 and demanded full rental for the apartment until defendant recertified under Section 8. On August 8, 1978 HUD made demand on plaintiff for back subsidies to December 1, 1977 because defendant failed to recertify annually under Section 8 of the Housing Act of 1937 and because HUD occupancy guidelines only entitled him, as a sole tenant, to a one bedroom apartment unit.

On October 11, 1978 plaintiffs attorney advised defendant he must recertify his HUD eligibility on penalty of exercise by plaintiffs of the legal rights available to them. Defendant signed acknowledgment of receipt of this notice.

On October 24, 1978 plaintiff notified defendant in writing that his lease was terminated effective November 30, 1978 and demanded he vacate the premises by that date. In the notice of termination, plaintiff advised defendant that the charge in the size of his family and his refusal to move to a smaller dwelling unit were both a material noncompliance with the lease agreement and a substantial violation of the lease under HUD regulations. The notice also informed defendant that if eviction proceedings are instituted he is entitled to present a defense. This notice was mailed to defendant on October 24, 1978 and served on him in person on October 25,1978. He was thus given more than thirty days notice to vacate.

On December 7, 1978 plaintiff served a five day notice to vacate under Louisiana law for nonpayment of rent, and a ten day notice to vacate under HUD regulations. The ten day notice advised defendant he was entitled to present a defense .in the event a judicial proceeding for eviction was instituted.

In spite of these notices, defendant did not vacate the premises, and this eviction proceeding ensued.

We conclude defendant’s failure to recertify his income and family composition at the end of one year was a material noncompliance with rental agreement and justified plaintiff’s increase in defendant’s rent. Moreover, defendant’s continued tender of $27 per month did not constitute payment of his rent, since his failure to certify and the change in his family composition made him ineligible for a rent subsidy for the three bedroom unit which he refused to vacate.

The lease provided for annual recertification of income. In addition, the lease referred to changes in rent because of change in family composition. Federal regulations require annual re-examination of family income and composition in order to make appropriate subsidy redeterminations. Hence, we conclude plaintiff was within its right to demand recertification of both defendant’s income and his family composition at the end of the initial rental period.

Defendant urges several defenses to the eviction proceedings. He first contends that while plaintiff complied with termination procedures under Section 8, it did not comply with such procedures under Section 236 of the National Housing Act. However, a reference to the applicable federal regulations discloses the same procedures apply under Section 236 and under Section 8. Hence, this defense argument is without merit.

Defendant also argues that a change of dwelling because of a change in family composition is a modification of the lease, and that plaintiff was therefore required’ to serve an appropriate notice on defendant, with tender of a revised rental agreement or addendum, in accordance with 24 C.F.R. § 450.4(d). However, a reading of this section of the Code of Federal Regulations shows it is intended to apply to an actual change in rental agreement with the permission of HUD as of the end of a rental period. It has nothing to do with changes in the type of housing available for subsidies which result from a change in family composition.

In defendant’s answer to plaintiff’s rule for eviction, he alleged he was not granted a hearing prior to eviction in accordance with federal regulations. He has never specified what federal regulations require such a hearing. On appeal, he attempts to construe this allegation of his sworn answer to mean that plaintiff did not properly obtain authorization to evict from a local public housing authority or agency in accordance with 42 U.S.C. § 1437f. Under this section and a court decision referred to by defendant, it is the public housing authority and not the landlord which actually issues the notice to vacate.

This is the first time such an argument has been made, and the argument could not have been foreseen by plaintiff from the allegation in defendant’s answer that he was not afforded a hearing prior to eviction in violation of federal regulations. It suffices to say, however, that the record is devoid of any proof that a public housing authority is involved in the present case. In the absence of such proof, defendant’s argument falls. Moreover, plaintiff has annexed to its brief as an exhibit a copy of its agreement with the Department of Housing and Urban Development for subsidized housing, and that document on its face indicates that the agreement was directly between plaintiff and HUD, without the intervention of a public housing authority. We see no purpose of remanding the case for a determination of this issue in view of defendant’s failure to prove the existence of the public housing authority in the transaction.

Moreover, even if a public housing authority was involved, the case cited by defendant enjoins the secretary of the Department of Housing and Urban Development from enforcement and dissemination of its regulation at 24 C.F.R. § 82.215, which purported to cause a landlord to obtain authorization from a public housing authority and submit evidence to the public housing authority to substantiate the grounds for eviction.

Finally, in the trial court defendant denied receiving certain notices required by 24 C.F.R. §§ 450.1 through 450.4. These denials were made in the face of strong, positive, and convincing plaintiff evidence that the notices were in fact made and delivered. We conclude, as did the trial judge, that plaintiff had furnished all required statutory and regulatory notices to defendant.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The authority for this demand was HUD Hand Book 4352.1, Paragraph 29a; the Section 8 Contract for Housing Assistance Payments; the Regulatory Agreement; and Title 24 of the Code of Federal Regulations, Part 886.124.

      . Defendant also signed for this notice.

      . 24 C.F.R. § 886.124.

      . The record is in conflict with regard to whether Section 236 of the National Housing Act applies in the present case because the interest of plaintiffs mortgage was subsidized pursuant to appropriate provisions of Section 236.

      .24 C.F.R. § 450.1 and § 450.2(e).

      . Brown et al. v. Harris, 491 F.Supp. 845 (1980), of the docket of the United States District Court for the Northern District of California.

      . See Brown v. Harris, supra, note 6.


text:
    Betty Jo Busher LENARD v. Carroll W. LENARD.
    No. 11232.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1980.

      Lawrence J. Genin, Marrero, for plaintiff-appellee.
    Emile R. St. Pierre, Destrehan, for defendant-appellant.
   SAMUEL, Judge.

This appeal arises from a dispute between husband and wife over the separate or community status of two articles of diamond jewelry acquired by the wife during the marriage. After judgment of separation, but before an action for partition of community property, the wife, Betty Jo Busher Lenard, filed a rule to show cause why her husband, Carroll W. Lenard, should not return “personal property” to her. The motion alleged the separate nature of the property but failéd to describe with particularity the items sought by her.

Mr. Lenard did not except to the use of summary proceedings, nor did he complain of the motion’s vagueness. After an evi-dentiary hearing on the rule, the trial judge rendered judgment declaring the jewelry to be the wife’s “personal property” and ordered it held by the clerk pending Mr. Lenard’s appeal.

At issue are two pieces of jewelry, a diamond studded cross and a diamond clover ring. The cross is alleged to be Mrs. Lenard’s separate property by gift from a former employer, and the ring is alleged to be hers by gift from her mother.

Mr. Lenard does not dispute that a gift by particular donation to a married woman is her separate property. However, all property acquired during marriage is presumed to be community until proven otherwise. This presumption is strong and must be overcome by clear and positive evidence.

Mrs. Lenard offered the testimony of her former employer, a dentist, who testified he gave her the cross as a “personal gift” and that it was paid for by him. On direct examination he identified a receipt for the gift and testified he obtained the receipt on June 4, 1973 when the purchase was made. On cross examination he first attempted to maintain the receipt was the one obtained by him at the time he purchased the cross, but upon being pressed he admitted the document was a duplicate made at his request less than a year prior to the hearing. The dentist testified he made the gift to Mrs. Lenard while she was employed by him as a bookkeeper and assistant.

The receipt offered is a carbon copy on a printed form of Aucoin-Hart Jewelry Company, indicating purchase of a diamond cross of 18 carat white gold for $1,200 on June 4, 1973. The dentist testified the duplicate receipt was prepared for him by “Mr. Hart”, who, the witness said, recalled the transaction because the cross was a special order item which required their consultation on several occasions over a period of months. We note the duplicate makes two spelling errors in the dentist’s name.

Mrs. Lenard’s testimony indicates the receipt was obtained by her former employer from “Tommy Aucoin”, the other owner of the jewelry store. The duplicate receipt contains the salesman’s initials, and while the first initial appears to be a “T”, the second could be either an “H” or an “A”. Mrs. Lenard also admitted her employer obtained the duplicate receipt at the suggestion of her attorney. She stated she could not find the dentist’s original receipt and he went “on his lunch hour” to obtain the duplicate. It was not explained how she knew the person to whom he had spoken and that he went on his lunch hour for the duplicate when she was no longer his employee.

Neither jeweler was subpoenaed or testified at the hearing. Moreover, neither a cancelled check nor other documentary evidence of payment was offered to establish the legitimacy of the duplicate receipt.

Mrs. Lenard could not remember the reason or occasion for the gift from her employer, and she admitted she did not tell her husband about it. She denied purchasing the cross herself with money sent by him from his overseas employment or with money earned by her during the marriage.

Mrs. Lenard also seeks return of a diamond clover ring, which she asserts was a personal gift from her mother. Other than Mrs. Lenard’s own self-serving testimony, no evidence was offered to show who purchased the ring; her mother did not testify-

Counsel for Mrs. Lenard attempted to establish Mr. Lenard lied to him and to his own attorney about knowledge of the whereabouts of the jewelry. We know of no legal duty requiring a litigant to voluntarily give truthful information to opposing counsel when not under oath, and private communications between defendant and his attorney could have been excluded from evidence as privileged. Nevertheless, Mr. Lenard testified he had thought his wife took the jewelry with her when she removed other community belongings from the matrimonial domicile, and when he discovered the cross and ring in an unexpected place, he so informed his attorney. He produced the jewelry in court voluntarily without the necessity of a subpoena duces tecum. More important, any misstatement by Mr. Lenard regarding his knowledge of the whereabouts of the jewelry has no bearing on his wife’s burden of proving the items were her separate property.

The matter is further clouded by Mr. Lenard’s request for a remand based on newly discovered evidence. He attached to his brief in this court a photocopy of a $1,200 check apparently signed by Mrs. Lenard, dated November 22,1972 and payable to her dentist employer. The amount of the check is the exact amount of the purchase price of the cross, and the date of the check roughly coincides with the delay the dentist indicated was required to make this special order item. Mr. Lenard also attached his affidavit explaining he did not locate the check in time for trial because of the summary nature of the proceeding and for the same reason he did not timely locate one of his wife’s former co-workers who, he asserts, can and will testify Mrs. Lenard stated she purchased the cross herself.

Evidence newly discovered while the matter is on appeal has been held to justify remand in several cases without pri- or motion in the trial court. And appellate courts may render any judgment which is just, legal, and proper, including remand for a new trial in the interest of justice. The nature of the evidence offered by Mrs. Lenard and the potential effect of the newly discovered evidence claimed by Mr. Lenard requires remand so that all of the facts may be developed by the presentation of all testimonial and real evidence available to each side.

For the foregoing reasons, the judgment appealed from is annulled and set aside, and this matter is remanded to the trial court for further proceedings consistent with law and with the views expressed herein. All costs to date are to be paid by Mrs. Lenard; all future costs are to await a final determination.

ANNULLED, SET ASIDE AND REMANDED.

      . Partition of community property is normally commenced by citation and petition as an ordinary action. C.C.P. Art. 4603. However, by going to trial in the summary proceeding without objection he waived his right to object to the summary proceeding. See C.C.P. Art. 2593, and comment (d) thereto.

      . Vagueness is likewise waived unless raised timely. C.C.P. Art. 926.

      . Originally purchased for $1,200 and later appraised at $6,000.

      . Civil Code Articles 2334 and 2402 (prior to Act 709 of 1979 — this petition for separation was filed in 1978 and the matter was tried in August, 1979). See also Emerson v. Emerson, La.App., 322 So.2d 347.

      . R.D.M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820, Fleming v. Fleming, 211 La. 860, 30 So.2d 860; Succession of Hyde, La.App., 281 So.2d 136.

      . Because of the result reached herein, we do not at this time invoke any adverse presumptions.

      . See note 6, supra.

      . Guaranty Bank & Trust Co. v. Hill, La.App., 242 So.2d 580. See also Hilliard v. Shuff, 260 La. 384, 256 So.2d 127.

      . C.C.P. Art. 2164; Hall v. Arkansas-Louisiana Gas Co., La.App., 359 So.2d 255.