author: KLEES, Judge.

text:
    Sylvia PERALTA v. SCHWEGMANN BROS. GIANT SUPERMARKETS, INC.
    No. 12191.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 1981.
    Writ Denied Jan. 8,1982.

      George R. Blue, Jr., Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for defendant-appellant.
    Roy L. Price, Metairie, for plaintiff-ap-pellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Defendant-appellant (Schwegmann’s) appeals from an adverse judgment in favor of plaintiff-appellee for injuries from a slip and fall.

The issues presented in the appeal are: Whether or not the clean-up procedures in effect at Schwegmann’s on the day of the accident were “reasonable” under the then existing circumstances, whether plaintiff was contributorily negligent and whether the award of general damages were excessive. The trial court rejected Schweg-mann’s contentions, we agree and affirm.

On December 29, 1977, it was raining heavily in New Orleans, and traffic in and out of the store was heavy.

A porterette, Wilma Jackson, was placed at the entranceway to mop up the water tracked in, and she suggested to her supervisor that a sign be posted to warn customers of the danger of falling but this suggestion was rejected. Instead she was told to warn customers about the wet floor and advise them to be careful. The defendants also taped a mat to the floor adjacent to the entrance doors to decrease the chances of customers slipping and falling. The porter-ette was having a difficult time keeping the water off the floor because of the heavy rain and the number of people coming in the store.

When plaintiff-appellee, Mrs. Peralta, walked in the store, she noticed the porter-ette standing at the side of the entrance-way talking to a security guard. After walking approximately six (6) feet beyond the mat, she slipped and fell on the wet floor.

As a result of this fall, she injured her left elbow, left knee and her right hip.

The applicable law on slip and fall cases was summarized recently in Smith v. Winn Dixie Stores of La., Inc., 389 So.2d 900 (La.App. 4th Cir.1980):

“The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant as store owner can carry its burden by establishing that it was free from fault, and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures including periodic inspections in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn Dixie Stores of La., Inc., 326 So.2d 486 (La.1976); Hanzo v. Travelers Ins. Co., 357 So.2d 1346 (La.App. 4th Cir.1978); Hyman v. National Super Markets Inc., 353 So.2d 397 (4th Cir.1977); Green v. Schwegmann’s Bros. Giant Supermarkets, Inc., 325 So.2d 621 (La.App. 4th Cir.1976). One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers and further that it does not have to keep its entranceways, aisles, and passageways in perfect condition, Lott v. Winn Dixie Louisiana, Inc., 280 So.2d 659 (La.App. 4th Cir.1973); Rozelle v. Employer’s Liability Assurance Corp., 260 So. 2d 757 (La.App. 2nd Cir.1972).

The trial court in a portion of findings of fact and reasons for judgment found that:

A. Schwegmann’s knew its floor was slippery when wet.
B. Schwegmann’s was short of help on the day in question.
C. The porterette suggested to the management that a sign be posted to warn entering customers of the danger of slipping on the wet floor, but her suggestion was not accepted or followed.
D. The porterette was engaged in conversation with the security guard at the time of the accident.
E. Neither the guard or porterette recalled verbally warning the plaintiff.
F. The porterette testified that there was a great deal of traffic and she had a difficult time keeping the water off the floor.
G. The stationing of a porter at the door on rainy days, with other duties as well, who failed to warn customers as they entered, was not an adequate remedy for a proven and well known hazardous condition.

The court finally concluded that all of the defendants' witnesses were not telling the truth and although defendant attempted to do something, it did not do as much as it could or should to warn its customers or to protect them.

We find these are reasonable inferences by the trial court, and thus not subject to displacement on appeal by other equally reasonable inferences, Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Although defendant argues that plaintiff was contributorily negligent, we find no such facts in the record aside from the observation that it was raining as plaintiff entered the store and plaintiff saw defendant’s porterette with a mop and bucket. These facts alone are insufficient to prove contributory negligence. A grocery store patron is under no obligation to make specific observations of the floor before taking each step. Whittaker v. Schwegmann Bros. Giant Super Market, Inc., 334 So.2d 756 (La.App. 4th Cir.1976).

The burden of proving contributory negligence is, of course, upon the defendant and the evidence fails to preponderate in favor of this affirmative defense.

Finally defendant argues that the general damages awarded to plaintiff in the amount of $16,917.00 was excessive. With respect to the award of general damages, each case must be weighed and evaluated according to its own particular facts and circumstances. The Louisiana Supreme Court stated in Reck v. Stevens, 373 So.2d 498, 501 (La.1979):

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first not to prior awards but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine the award is excessive.”

In this case, plaintiff was treated by her family physician Dr. B. H. Cogdell and Dr. Kenneth Saer, an Orthopedic surgeon. Dr. Cogdell and Dr. Saer both diagnosed Mrs. Peralta’s most severe problem as post-traumatic tendonitis. Her treatment consisted of prescriptions for pain and anti-inflammatory medication, physio-therapy and hydrocortisone injections. This treatment was continued for approximately one year. On March 19, 1979, plaintiff underwent an operation on the elbow to attempt to correct her tendonitis. Several months after the surgery Dr. Cogdell found that Mrs. Peralta, who is a beautician, could not perform her duties as such for more than an hour or so before the pain and soreness became so intense she had to stop. She was unable to mop, sweep floors, use the vacuum cleaner or do any significant lifting with her left arm. She can no longer participate in her hobby of knitting and he concluded that she sustained a 50% loss of use of her left arm.

Considering all of the facts and circumstances we find no abuse of discretion in the District Court’s award for general damages. Mullin v. Vessier, 400 So.2d 1192 (La.App. 1st Cir.1981).

Accordingly, the judgment of the District court is affirmed. Costs of this appeal are to be borne by defendant.

AFFIRMED.


source: Caselaw Access Project

author: CUTRER, Judge. STOKER, Judge,

license: Public Domain

text:
    PHARIS & PHARIS, Plaintiff-Appellant, v. Mary Elizabeth V. RAYNER, Defendant-Appellee.
    No. 7486.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Pharis & Pharis, James A. Pharis, Jr. and F. Jean Pharis, Alexandria, for plaintiff-appellant.
    Vincent Hazleton, Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This case has been remanded by the Supreme Court after it reversed the ruling of this court which had affirmed the trial court’s determination that the attorney’s contingent fee contract was void for lack of consent due to an error of fact. The Supreme Court held that it was unnecessary to decide whether the contingent fee contract was valid. It concluded that the attorney rendered valuable services but the fee provided in the contingent fee contract would be excessive and unreasonable. The remand is with instructions to “award plaintiff a reasonable fee in light of the evidence of record and the factors set forth in the Code of Professional Responsibility.”

Mrs. Rayner employed Mr. Pharis to represent her in the succession proceedings of her deceased husband. Pursuant to this employment, Mr. Pharis had Mrs. Rayner sign a contingent fee contract which would give Pharis 20% of all movable and immovable property, including stock share certificates and money to which she should be recognized as owner. The amount increased to 30% if any appellate work was needed.

Mrs. Rayner consulted with Mr. Pharis by telephone on March 29, 1978, and formally employed him on April 5, 1978. Mr. Pharis was dismissed from employment on April 24, 1978. Mr. Pharis filed suit against Mrs. Rayner seeking recovery under the contingent fee contract. The trial court dismissed the suit. On appeal, this court affirmed on the basis that the contract was invalid due to an error of fact. The Supreme Court granted writs and this remand followed:

On remand, the only issue before this court is the amount of the fee which shall be awarded to Mr. Pharis in light of the evidence found in the record and in light of the factors set forth by DR 2-106{B) of the Code of Professional Responsibility.

The facts presented in this case are: Mrs. Rayner first telephoned Mr. Pharis on March 29, 1978, concerning' her interest in her husband’s succession and stock owned by her in a corporation. Mr. Pharis checked the public records on March 29 and 30,1978, to ascertain the status of Mrs. Rayner’s interest in the succession and corporation. Mrs. Rayner went to Mr. Pharis’ office on April 3rd pursuant to his call. This visit lasted for approximately an hour. A second meeting was scheduled for April 5th. This meeting between Mrs. Rayner, her daughter, Mrs. McRight, and Mr. Pharis lasted approximately two hours. Mr. Phar-is, along with the two women, went to the courthouse and reviewed the record. Phar-is informed them they needed legal action fast. At this time a contingent fee contract was signed. The next time Mrs. Rayner saw Mr. Pharis was April 24, 1978, the day she gave him oral and written notice of the termination of his employment.

During the period of employment, April 5 to April 24, 1978, Mr. Pharis did the following relative to his representation of Mrs. Rayner: Mr. Pharis dictated a “Motion to Traverse the Sworn Descriptive List” and filed it on April 10, 1978. The descriptive list as filed by Mr. Sheffield did not show Mrs. Rayner to have a one-half ownership interest in the property (community) of her deceased husband’s succession. He drafted a suit to recover stock Mrs. Rayner had in the Central Electric Company of Alexandria which her son purchased pursuant to a buy-sell agreement. This suit was never filed. Mr. Pharis stated that he also had anticipated a lesion action against James Rayner for property sold to Rayner by his father. Mr. Pharis further testified that he contacted expert accountants and appraisers in anticipation of the suits and actions that he contemplated. He also talked with Mr. Sheffield, Attorney for the succession, on two or three occasions in regard to the problems that existed.

Mr. Sheffield stated that the first descriptive list was filed merely to get the administrator qualified and not to determine the rights of any parties. The list did not include Mrs. Rayner as half owner. On April 13, 1978, three days after Pharis filed the motion to traverse, the descriptive list was amended to show Mrs. Rayner’s interests. It is contested as to whether this result was due to the efforts of Mr. Pharis or whether it would have come in due course in the succession proceedings.

We shall now consider the factors as they relate to Mr. Pharis’ efforts.

(1)“The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.”

As is noted from'the record, Mr. Pharis did not keep time charts of his activities on behalf of Mrs. Rayner. The motion to traverse the descriptive list was five pages in length including the order and certificate of mailing to the other attorney of record. He dictated the stock transfer petition although he did not say how long it took. The petition numbered twelve pages. The situation may have been unusual but it posed no extremely difficult questions for such an attorney as Mr. Pharis who is experienced in succession proceedings. The other time spent was for telephone conversations and conferences as well as reviewing the public records as heretofore mentioned.

(2) “The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.”

Appellant Pharis concedes, and we agree, that this factor is not applicable.

(3) “The fee customarily charged in the locality for similar legal services.”

Mr. Pharis concedes that no local fee for such service was proven and therefore he does not argue this point.

(4) “The amount involved and the results obtained.”

Mr. Pharis argues that through his efforts, Mrs. Rayner was recognized as owner of property valued at $125,000.00. The testimony of the parties and attorneys to the succession proceeding conflict as to the results obtained by Mr. Pharis. As we consider all the circumstances brought out on trial of this case and the apparent satisfactory resolution of the succession, we conclude that the results obtained could have been due, in part, to Mr. Pharis’ efforts. Mr. Pharis’ actions will be compensated as services were provided in this regard.

(5) “The time limitations imposed by the client or by the circumstances.”
Obviously, with any litigation or judicial proceeding, time limitations are imposed on the parties. No doubt Mr. Pharis acted quickly in filing his motion to traverse, feeling the circumstances warranted it. The method or course of action by Mr. Pharis may not have been the only available one; however, such concern for his client’s interests will be remunerated in determining his fee.

(6) “The nature and length of the professional relationship with the client.”

The length of the employment, approximately 20 days, will be considered as a factor, but not a substantial factor, in determining an award.

(7) “The experience, reputation, and ability of the lawyer or lawyers performing the services.”

Mr. Pharis’ witness testified that Pharis was an excellent lawyer of whom he thought highly. We agree that Mr. Pharis should command a fee equivalent to that of any other lawyer in the area.

(8) “Whether the fee is fixed or contingent.”

This factor has no application as the determination of attorney’s fees herein must be based upon quantum meruit.

After consideration of the services rendered by Mr. Pharis, along with the factors set forth herein, we conclude that a fee of $2,500.00 would be reasonable compensation for Mr. Pharis’ efforts.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside. It is ordered that judgment shall be rendered in favor of Pharis & Pharis, a partnership composed of attorneys F. Jean Pharis and James A. Pharis, Jr., and against the defendant, Mrs. Rayner, for the sum or $2,500.00 along with legal interest. The costs of the trial court and for this appeal are to be paid by the defendant-appellee.

REVERSED AND RENDERED.

APPENDIX

Before CUTRER, STOKER and LA-BORDE, JJ.

CUTRER, Judge.

This is a suit on a contingent fee contract by Pharis & Pharis, a partnership composed of attorneys F. Jean Pharis and James A. Pharis, Jr., for the collection of a fee in the amount of $31,615.09 allegedly owed by defendant, Mrs. Mary Elizabeth V. Rayner. From a judgment in favor of Mrs. Rayner, dismissing the plaintiff’s demands, plaintiff appeals.

The issue on appeal is whether Mrs. Ray-ner validly consented to a contingent fee contract of employment.

Mrs. Rayner was the wife of Elmer Ray-ner. Six children were born of this marriage. The family home was in Pineville, Louisiana. On June 9, 1976, Mr. and Mrs. Rayner were judicially separated and the community was dissolved though no settlement ever occurred. Approximately one year prior to the death of Elmer Rayner on January 23, 1978, the Rayners reconciled and resumed living together. The community regime was not re-established.

During his lifetime, Mr. Rayner formed a closely held corporation known as Central Electric Company of Alexandria, Inc. The firm was engaged in electrical contracting and engineering as well as in the retail selling of electrical supplies and fixtures.

Mr. Rayner left a will by which he named his children as legatees and declared that there would be no usufruct in favor of Mrs. Rayner. James Rayner, a son,, was named as testamentary executor and David Sheffield, an Alexandria attorney, was named as attorney for the succession.

Around the first of February 1978, a family meeting was held in the home of Patsy Rayner Delrie. Present at this meeting were Mrs. Rayner, the six children, and attorney David Sheffield.

The testimony of the children, Mrs. Ray-ner and David Sheffield was that Sheffield advised the group of the laws of descent and distribution. He also pointed out that Mrs. Rayner was the owner of one-half of the property by virtue of the prior separation judgment and that Mrs. Rayner would be recognized as such in the ensuing succession proceedings. Even though the will provided no usufruct for Mrs. Rayner, the children agreed to grant Mrs. Rayner the usufruct of the home.

At this meeting, Sheffield explained that there was a written stock purchase agreement by which the corporation would have the right to purchase the stock of a deceased stockholder. (This agreement was entered into between Elmer Rayner, James F. Rayner and Central Electric on March 22,1966, at which time the stock was valued at $78.00 per share. According to a provision of the agreement this remained the value of the stock for purposes of purchase by the corporation since no new value was subsequently assigned. A total of 1,000 shares was issued. Mr. and Mrs. Rayner held 950 shares of the stock as community property. Of course, when the community was dissolved, Mr. and Mrs. Rayner owned an undivided one-half interest in the shares. The remaining 50 shares were owned by James F. Rayner.) At this family meeting, Mrs. Rayner inquired whether the stock purchase agreement would require her to sell her interest to her son. Sheffield responded that James Rayner had a right to buy her interest under this agreement. Mrs. Rayner was interested in retaining her stock interest in the corporation so that she could receive a monthly income as a stockholder rather than selling the stock.

Around the first of April 1978, Mrs. Ray-ner contacted James Pharis. The content of this conversation and subsequent meetings are somewhat disputed.

Mrs. Rayner testified that in the first part of April she contacted Mr. Pharis for only one reason and that was to consult with him about keeping her interest in the Central Electric stock rather than selling to her son. An appointment was made for April 3rd. The only item discussed was the stock. There was no discussion about a fee. Pharis said he would look into the matter for her.

On the afternoon of April 3rd, Mrs. Ray-ner received a call from Pharis. Mrs. Ray-ner testified that Pharis told her that she must take action right away or she would not own anything. This was the first mention, in the discussions with Pharis, of anything other than stock. Mrs. Rayner was quite upset by this news. Mrs. Rayner then called her daughter, Jeanette, and asked her to go with her to consult with Pharis.

The second meeting with Pharis took place on April 5th at 2:00 P. M. At this meeting, Pharis took Mrs. Rayner and Mrs. McRight to the courthouse and showed them the descriptive list which had been attached to the petition of James Rayner seeking to be appointed executor. The descriptive list made no mention of Mrs. Ray-ner’s interest in the property. Pharis also instructed Mrs. Rayner and Mrs. McRight to keep this representation secret. (Pharis’ testimony is essentially the same on this point.) Upon return to the office, Pharis told Mrs. McRight that her mother had more problems than just the stock. Mrs. Rayner was led to believe that her son and Sheffield might defraud her of her interest. Pharis then presented a contract to Mrs. Rayner and told her to read it. Mrs. McRight read the contract, then explained to Mrs. Rayner that Pharis wanted 20 percent. Mrs. Rayner responded that 20 percent was a lot of money. Mrs. Rayner’s complaint, that 20 percent was a lot of money, was met with Pharis’ response that she had no choice. She then signed the contract. Mrs. Rayner testified that she signed the contract because Pharis told her that if she didn’t take immediate action she would lose her entire interest in the property.

Pharis testified that Mrs. Rayner first called him with the complaint that she had received no funds from her son or Sheffield with which to operate her household. He stated that Mrs. Rayner gave no indication that there was a question concerning the sale of the stock. Pharis stated that he looked at the descriptive list attached to the initial petition for the appointment of an executor. He noticed that the list did not mention the interest of Mrs. Rayner. He became apprehensive that the Rayner heirs would get possession of the property, especially the movables, and would dispose of them to the prejudice of Mrs. Rayner. He stated that he thought it necessary that his representation of Mrs. Rayner be kept a secret under the circumstances.

On April 10, 1978, Pharis filed a motion to traverse the detailed descriptive list which had been filed by James Rayner as executor. On April 13, 1978, an amended descriptive list was filed showing Mrs. Ray-ner’s one-half interest.

David Sheffield, the attorney for the executor, testified that the first descriptive list was not intended to be a complete or final inventory. He stated it was filed simply to get the proceedings underway and that it was going to be amended because all of the assets had not yet been determined. Sheffield stated that Pharis did not contact him before filing the motion to traverse. After the motion was filed, Sheffield called Pharis to inquire as to why the motion had been filed. Sheffield offered to give Pharis a letter recognizing Mrs. Rayner’s interest, that he would give him information about other assets to be included, and that he would be available to meet with Mrs. Ray-ner, Pharis and James Rayner to discuss the matter.

When James Rayner, the executor, was served with the motion to traverse, he called another family meeting. Rayner inquired of his mother as to the filing of the pleading. Mrs. Rayner responded that Pharis told her she did not own anything. Rayner explained to her that she owned one-half of all of the property. He proposed a meeting between Pharis, Sheffield, his mother and himself. Pharis refused to meet when Mrs. Rayner called to ask for such a meeting. After talking with James Rayner and the other children, Mrs. Rayner was convinced that her fear of losing her interest in the property was erroneous. After Pharis refused to meet with her, Sheffield and James Rayner, Mrs. Rayner decided to dismiss Pharis.

On April 24th, Mrs. Rayner called Pharis and told him to drop the suit. Later that day, Mrs. Rayner, accompanied by her son, delivered a letter to Pharis dismissing him. The succession was closed by judgment of possession dated July 11, 1978 and Mrs. Rayner received her share of the property. All of the children testified there was never any intent to defraud Mrs. Rayner of any of her property.

This suit was subsequently filed to recover that contingent fee allegedly due Pharis.

The trial judge accepted the defendant’s version of the events relating to the employment of Pharis. The trial judge found that the contract was void because Pharis intentionally or unintentionally “put Mrs. Rayner in such a state of fear that she signed the contract without really realizing what she was doing.” Further, the trial court found the contract was unconscionable and that the whole affair could have been avoided by a simple telephone call to Sheffield.

On appeal, Pharis & Pharis alleges that the trial court erred in finding that plaintiff failed to make due proof of its demands.

We cannot say, based on our review of the record, that the trial judge clearly erred in accepting the defendant’s version of the events. It is well settled that on appellate review, the findings of the trier of fact are entitled to great weight and should not be disturbed unless clearly wrong. On appeal, the reviewing court will not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial judge. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Matte v. Guillory, 370 So.2d 1299 (La.App. 3rd Cir. 1978).

The contract of employment is void for the lack of consent due to an error of fact.

LSA-C.C. art. 1819 provides as follows:

“Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—

1. Error; * * *”

LSA-C.C. art. 1821 provides as follows:

“That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.”

In the case of Cheramie v. Stiles, 215 La. 682, 41 So.2d 502 (1949), it was held that:

“The existence of an error of fact proceeding from ignorance of what really exists or the mistaken belief in the existence of facts which are the principal cause of and bear upon the motive for the yielding of consent to an agreement are sufficient grounds to set aside a contract.” 41 So.2d 502, at 504.

Mrs. Rayner signed the contract under the mistaken belief that if she did not do so, she would lose her entire undivided one-half interest in all of the property. She relied upon the advice of Pharis in this regard. Pharis’ concern for the possible loss of Mrs. Rayner’s interest in the stock, upon examination of the original descriptive list, may be justified. However, Pharis’ conclusion that Mrs. Rayner was about to lose all of her property, without further inquiry, cannot be justified under the circumstances presented. The execution of the contract by Mrs. Rayner was an error of fact which was derived from the mistaken belief in the existence of facts that were the principal cause for Mrs. Rayner’s consent to the agreement. This error of fact is sufficient ground to set aside the contract. Thus, the judgment of the trial court setting aside the contract will be affirmed.

The trial court found that the plaintiff had not presented evidence upon which any recovery could be allowed on quantum me-ruit. Recovery on this basis is not urged on appeal.

For these reasons, the judgment of the trial court dismissing plaintiff’s demands is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached in the majority opinion in this case. However, I wish to state that I do not agree with the findings of fact stated by the trial judge, particularly his credibility evaluation as it affects plaintiff, James A. Pharis, Jr. This disagreement should not, by any means, reflect upon the attorney for the succession of Elmer Rayner. The filing of the descriptive list which omitted any mention of Mrs. Ray-ner’s interest in the property does not necessarily indicate an intention to trifle with her rights. Nevertheless, the omission was made, and any attorney representing Mrs. Rayner was duty bound to take note of the omission and respond as he felt appropriate. Perhaps, a telephone call would have sufficed. On the other hand, I do not think plaintiff should be faulted for having traversed the descriptive list. An eminent practitioner in Alexandria and past president of the Louisiana State Bar Association testified as an expert witness. In response to a question on cross examination by the attorney for Mrs. Rayner, the expert stated emphatically that, if he had been faced with the same situation as Mr. Pharis was presented with, he would have felt that legal action was necessary and should have been filed quickly.

Hence, it is my feeling that the action of plaintiff Pharis was fully justified. It is true that the attorney for the succession promptly filed amended pleadings to correct any impression that Mrs. Rayner’s rights were going to be ignored. I do agree with the trial judge in that I do not believe the attorney for the succession would have considered for one moment any action of the sort feared by Mr. Pharis. Nevertheless, the descriptive list was filed, omitting mention of Mrs. Rayner’s interest, and there was no assurance that the same succession attorney would continue to represent the succession. Therefore, Mr. Pharis’ actions were prudent.

Despite any feelings expressed above, I do not believe that the contingency fee contract should be enforced for the reasons given in Simon v. Metoyer, 383 So.2d 1321 (La.App. 3rd Cir. 1980). I would make an award based on quantum meruit, but the matter has not been pursued in this appeal. Failure of the trial court to make such an award was not listed by plaintiff in his specifications of error or the listing of issues.

      . 397 So.2d 1295 (La.1981).

      . The unpublished opinion of this court has been made an appendix to this decision.

      . Mrs. Rayner filed an “exception of no cause or right of action” in this court after the remand from the Supreme Court. We will not consider the exception as the Supreme Court has ordered this court to award reasonable attorney’s fees.

      . “(B) * * *
      “Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.”

      . Under the case of Chiasson v. Law Firm of Dragon & Kellner, 335 So.2d 87 (La.App. 3rd Cir. 1976) quantum meruit wouid be the proper term. Possibly under Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978), the term may be inappropriate. It is clear under Saucier, however, that the courts have authority to reduce fees called for in contingency contracts to amounts commensurate with the value of services performed.


author: LABORDE, Judge.

text:
    Clarence N. GEWIN, Plaintiff-Appellee, v. WILLAMETTE INDUSTRIES, INC., Defendant-Appellant.
    No. 8438.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Napper, Madden & Rogers, R. H. Madden, III, Ruston, for defendant-appellant and Tommy Rogers.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

In this action for damages for trespass to immovable property, Clarence N. Gewin, appellee, sued Willamette Industries, Inc., appellant. The trial court awarded Gewin treble damages for the value of the timber taken or destroyed, and general damages plus court costs. It denied Gewin’s demand for attorney’s fees. We affirm. We hold that the trial court properly awarded treble damages under the provisions of LSA-R.S. 56:1478.1 par. C.; that the general damage award was within the great discretion allowed the court; and that no law or contract existed between the parties which would allow assessment of attorney’s fees.

We take the liberty of quoting in full the scholarly trial judge’s reasons for judgment:

“This is a suit by a landowner for damages for trespass.
The Plaintiff, Clarence N. Gewin, alleging himself to be the owner of a certain tract of land, in Sabine Parish, contends that the Defendant, Willamette Industries, Inc., trespassed upon approximately twelve to fifteen acres of this land, cutting and removing a wide variety of timber, including very large hardwood trees; damaging young growing timber thereon, and leaving large trees that were cut but not removed, tree tops and debris over the entire area wrongfully cut, leaving the area in such a state of devastation that it could only be traversed with great difficulty, and rendered precise determination of the area involved most difficult.
Plaintiff alleges that Defendant’s conduct was reckless, wanton, willful and in complete disregard of his property rights.
Plaintiff alleges that the wooded area was used by himself and his family for recreational purposes, and, in addition, was used by him for personal, social and business purposes, by his social and business friends and acquaintances, for squirrel hunting, and Plaintiff seeks damages for converted value of timber, damage to timber and land in logging operation, loss of use of property as a recreational area; mental and emotional pain and suffering, attorneys fees, and costs of court.
Defendant acknowledged the trespass, but denies that it was intentional.
The law applicable to Plaintiff’s claim insofar as it applies to the timber that was cut, is set forth in LSA-R.S. 56:1478.1, in the following language:
‘A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.’
Also, insofar as other damages are concerned the Court must consider La. Civil Code Art. 2315, which provides, in part:
‘Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.’
The evidence establishes beyond any question that Defendant was guilty of gross negligence in ignoring the public records and its own records, in its own office, in cutting the timber on Plaintiff’s land. However, it is not necessary for this Court to determine whether this reckless, heedless, negligent cutting of Plaintiff’s timber constituted ‘willful and intentional’ cutting and destroying of Plaintiff’s timber, as denounced by Par. B of L.S.A. R.S. 56:1478.1, because the facts of the case clearly establish that Par. C. of L.S.A. R.S. 56:1478:1 are applicable.
Defendant owned land to the South of and adjoining the property of Plaintiff. These two tracts of land were divided by an old Las Ormegas Grant Line, which dates back to the days when this area belonged to Spain. This line had, at some point some sixty years previously, been blazed on the trees dividing the property and was such that Mr. M. B. Gewin, the 84 year old father of Plaintiff, could follow it without any difficulty. It is the type of marks anyone with any experience at all in the timber business know to look for, and can follow. It is the type of line that clearly designates both ownership lines and boundary lines.
In addition, the evidence established that the timber on defendant’s land, to the South, had been cut as recently as some time in the 1940’s whereas Plaintiff’s land, joining Willamette on its North side, had not been cut since sometime prior to 1920. This fact alone constituted a boundary situation that is glaring to any forester of any degree of competence. Saw log type timber with less than forty years growth along side timber with growth of in excess of sixty years is certainly a noteworthy boundary line, or dividing line, that should have alerted any timber man that he was passing from one tract to another.
The Court finds the provisions of L.S.A. R.S. 56:1478.1. Par. C. applicable.
Mr. Jerry Bazer, qualified forester, with many years of experience, and personally known to this Court as a person of competence and integrity, was qualified, without objection, as an expert in this field, and testified. On the commercial value of the timber cut, Mr. Bazer fixed the price of pine saw logs at $275.00 per thousand board feet, with 3,012 board feet cut, for a total value of $828.30. See D-35. One cord of pulpwood at $10.00 per cord, 46,771 board feet of hardwood at $60.00 per thousand for a value of $2,806.26. The total market value of the timber, at the time cut, was $3,644.56. Multiplied by 3, we arrive at the figure $10,933.68.
Plaintiff’s damaged land, with an estimated area of 13.5 acres, will require $200.00 per acre to clean up and plant in pine; for a total of $2,700.00.
The $7,500.00 suggested by Plaintiff as a fair award for general damages is appropriate in this case.
Defendant destroyed a virtual hunter’s paradise — an area filled with massive hardwood trees that provided a nesting ground for squirrels. Plaintiff did not retain this growth for the commercial production of trees. It was a part of a recreation area which had been damaged beyond repair. As a hunting area it has been destroyed. If Plaintiff commenced at this moment to attempt to reproduce this area, he could not do so within his lifetime. He was understandably upset, and depressed, and the Court finds that he in fact suffered, and continues to suffer severe mental and emotional trauma as a direct result of the Defendant’s destruction of the stand of timber of which he was so proud. Boswell, v. Roy O. Martin Lumber Company, 363 So.2d 506; Turner v. Southern Excavation, Inc., 322 So.2d 326.
The Court finds no statutory basis for assessing attorney fees.
The expert witness fee of Mr. Jerry Bazer is fixed at $200.00 and assessed as costs.
Defendant shall be cast for all costs of these proceedings.”

On appeal, appellant contends that LSA— R.S. 56:1478.1', par. C, is not applicable to the instant case; that the trial court abused its discretion in fixing the value of the timber cut; that the trial judge awarded excessive general damages; and that attorney’s fees are not allowable in this case. We will discuss the four assignments of error separately.

In urging that LSA-R.S. 56:1478 is inapplicable to this case, appellant relies heavily on the recent case of Shaffett v. Vicks, 385 So.2d 419 (La.App. 1st Cir. 1980) where the court held that defendant was not liable for treble damages where defendant’s loggers did not act willfully and intentionally in cutting and removing trees from plaintiff’s property and the two properties were not divided by any visibly designated demarcation line.

In the instant case, which is distinguishable from the Shaffett case, the trial court specifically found that there was a marked line dividing the properties sufficiently clear for Mr. M. B. Gewin, plaintiff’s 84 year old father, to follow it without difficulty. Further, the trial court found that plaintiff’s timber was much taller since no logging operations had been conducted on that property for a period in excess of sixty years. The hardwood timber on defendant’s tract had been cut in the last forty years. The trial court found that the difference in timber growth “should have alerted any timber man that he was passing from one tract to another.”

Appellant’s obvious knowledge of the Gewin property and its boundaries is evidenced by Exhibit P — 2A. In response to an invitation to bid by Gewin to sell the timber on his property, appellant had offered a price of more than $15,000 for the standing timber. An offer to purchase by appellant indicates that they had cruised the tract to be bought, ascertained the boundaries and determined the volume of timber on the land prior to offering a bid price.

We conclude, as did the trial judge, that appellant was aware of the boundary between its property and the Gewin property and that appellant, even in good faith, is liable to Gewin for three times the fair market value of the trees cut, felled and destroyed or removed.

Next, appellant contends that the trial court should have accepted the calculations of their forestry expert in fixing the value of the hardwood trees and timber destroyed on the Gewin property. We disagree. The trial court accepted the testimony of Jerry Bazer, a qualified forester who was accepted without objection by appellant, as an expert in the field and personally known to the court as competent and qualified. The items awarded by the court — the value of the timber and the clean up and re-planting estimates — are recoverable and supported by the evidence in the record. These findings and awards will not be disturbed on appeal. Concerning this assignment of error by appellant, we find no trial court error.

Appellant’s contention that the trial judge abused his discretion in awarding general damages is without merit. Louisiana Civil Code Article 1934 (3) provides in pertinent part:

“In the assessment of damages ... in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, ...”

The record reflects that Gewin was upset about the damages inflicted to his property by appellant and for the loss of his squirrel hunting grounds. Undoubtedly, Gewin suffered considerable mental pain and suffering. We conclude that the trial court’s award fell within the range of its “much discretion.” Boswell v. Roy O. Martin Lumber Go., Inc., 363 So.2d 506 (La. 1978).

Gewin answered the appeal urging this court to add attorney’s fees to the judgment granted by the trial court. Our jurisprudence is well settled that attorney’s fees are not allowable unless they are particularly authorized by law or a contract between the parties. Simmons v. Hernandez, 287 So.2d 637 (La.App. 3rd Cir. 1973), writ refused, 290 So.2d 902 (1974). Gewin’s request for attorney’s fees is denied since we know of no authority for awarding attorney’s fees in this case. LeFleur v. Brown & McKenzie, Inc., 388 So.2d 854 (La. App. 3rd Cir. 1980).

For the above and foregoing reasons, the judgment appealed by defendant-appellant is affirmed. All costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: SWIFT, Judge.- DOMENGEAUX, Judge,

text:
    DONNIE DEROUEN ELECTRICAL SERVICE, Plaintiff-Appellant-Appellee, v. Robert McKAY, et al., Defendant-Appellant-Appellant.
    No. 8477.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Morrow & Morrow, Patrick C. Morrow, Opelousas, for defendant-appellant.
    Hagood & Moss, Jefferson J. Moss, Jr., Lafayette, for plaintiff-appellee-appellant.
    Before DOMENGEAUX, SWIFT AND YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.-

Plaintiff, Donnie Derouen Electrical Service, Inc. filed suit against Robert M. McKay to recover the amount allegedly due for work performed under a contract to rewire the defendants’ house. The defendant denied the indebtedness and reconvened for breach of contract, alleging the following damages: (a) $18,000.00 as the estimated cost to complete the job; (b) $30,000.00 for loss of business; and (c) $100,000.00 for mental pain, suffering and aggravation.

On December 15, 1980, Dr. McKay filed an amending and supplemental reconven-tional demand adding his wife as a co-plaintiff-in-reconvention and claiming $10,000.00 additional damage for the fee of a business manager hired to get the job properly completed. Attached thereto was an ex parte order permitting the pleading to be filed. The plaintiff was served therewith on December 19.

On December 31 plaintiff filed a peremptory exception of no cause of action directed at the reconventional demand for mental suffering. On January 2, 1981, plaintiff filed a motion for partial summary judgment as to the same demand and it also filed another exception of no cause of action directed at the demands for loss of business and the fee of the business manager.

On January 5, the day before the case was scheduled for trial, plaintiff filed a motion to vacate the December 15 order which allowed the supplemental reconven-tional demand to be filed. The trial court heard all of the motions and exceptions on that same day. The defendants had not been served with the motions, but their counsel accepted service at the hearing. He objected, however, to the “late filing” of all exceptions and motions.

The trial judge offered to continue the hearing and take it up the following day before the trial began, or if the McKays’ attorney preferred to upset the trial on the merits and refix the hearing on the motions and exceptions for his next rule day. The latter indicated his clients did not want to continue the trial, but if the court ruled against them counsel wanted time to take those issues to the court of appeal. Whereupon, the following colloquy took place:

“By Mr. Morrow:
“Your Honor, for the record, we would formally object to the late filing of all of these motions, if, in fact, this case is tried tomorrow. We feel that they are not timely filed, and we would enter a formal objection at this time to the Court even considering them. But because Mr. Moss has said that he would agree to the continuance, or the Court will grant us a continuance in the event you would grant these motions, then I see no reason not to take them up now. Then I can discuss with my clients this afternoon the outcome; hopefully, the advantageous outcome to my clients, and we can continue. With that understanding, we will go forward with the hearing, your Honor.

BY MR. MOSS:

“Your Honor, I don’t understand this. Either his posture is he is objecting to it, or objecting to it with a condition, or he is not objecting to it, or he is asking for a continuance. He can’t ride the fence until the last minute.
“THE COURT: He wants to object to the late filing of it.

BY MR. MOSS:

“Peremptory Exceptions can be filed at any time.

BY MR. MORROW:

“Well, we are talking about the Summary Judgment. We have not had a formal opportunity — we have not been formally served with the motion. This is a court of record, your Honor — a court of record.
“We have been handed the motion — the Peremptory Exception of No Cause of Action. The Court can refer to the merits or decide — in this case, I understand the Court wants to decide it — in other words, to cut down the jury trial. What we are saying, your Honor, is we object to the late filing of certain motions, which I think the Code controls what motions we are talking about.
“Number two, as I understand it, if we do hear the motions today over our objection to the late filing, and the Court would grant the motions, then we would still be entitled to a continuance tomorrow to take this up to the Third Circuit to only try the case one time.
“THE COURT: To clarify your position, let me get it clear in my mind. You would rather hear the exceptions today, tomorrow, or on my next rule docket?

BY MR. MORROW:

“I’ll hear the exceptions today, your Honor. I’m objecting to the late filing. Now, whether or not — I understand—
“THE COURT: Not to hearing them today, but the filing today.

BY MR. MORROW:

“That’s correct — to the filing.”

Thereafter, the trial court rendered judgment granting the motion for partial summary judgment as to the reconventional demands for mental pain and suffering and loss of business, but denying the motion with respect to the demand for the manager’s fee. The peremptory exceptions of no cause of action and the motion to vacate were denied. The plaintiffs-in-reconvention as well as the defendant-in-reconvention have appealed.

Counsel for plaintiffs-in-reconvention correctly argues that they were entitled to a delay of at least ten days between service of the motion for partial summary judgment and the hearing. Article 966 of the Louisiana Code of Civil Procedure explicitly so provides. And see Frank v. Great American Insurance Co., 196 So.2d 50 (La.App. 3 Cir. 1967), writ refused 250 La. 739, 199 So.2d 180 (1967); and Villavasso v. Lincoln Beach Corporation, 146 So.2d 7 (La. App. 4 Cir. 1962). However, we find nothing in the article which prohibits waiver of such delay by the consent of the party to whom it is afforded. In Tangi Ready Mix Concrete Company v. Edwards, 336 So.2d 232 (La.App. 1 Cir. 1976), the requirement of this article, that a plaintiff’s motion for a summary judgment must be made after an answer has been filed, was held to have been waived by the opposing party.

In our opinion when counsel informed the court that he wanted to proceed with the hearing on the motion and obtain a ruling as to the merits of the mental anguish demand prior to trial provided a continuance would be granted for appellate review in the event of an adverse decision, he effectively waived the delay provided in the article.

Turning now to the merits of the motion, we find that the decision of Os trowe v. Darensbourg, 377 So.2d 1201 (La.1980), is dispositive of the issue as to the McKays’ demand for mental suffering allegedly sustained as a result of plaintiff’s failure to properly complete the house. In that case the supreme court determined that a similar motion for summary judgment should have been sustained under Article 1934(3) of our civil code, since neither the petition nor building contract indicated that the latter had for its principal object the gratification of any intellectual enjoyment. Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3 Cir. 1980) applied the same principle of law.

The wiring contract is not before us, but the reconventional demand contains no such allegation and the plaintiff’s affidavit is to the effect that this subject was not mentioned by the parties. We therefore affirm the trial court’s decision on the motion insofar as that particular demand is concerned. However, we must recall and set aside the judgment as to the other two reconventional demands since they were not included therein.

We also affirm the overruling of the plaintiff’s exceptions of no cause of action because the reconventional demand does state a cause of action at least as to the cost of completing the job. Little v. Haik, 246 La. 121, 163 So.2d 558 (La.1964).

No showing having been made that plaintiff will be caused any irreparable injury by the interlocutory judgment which denied its motion to vacate the previous order permitting filing of the amending and supplemental reconventional demand, the appeal taken herein by the plaintiff will be dismissed. La. C.C.P. Art. 2083.

For the foregoing reasons, the judgment of the district court dated April 10, 1981, is affirmed insofar as it sustained the motion for partial summary judgment filed by the defendant-in-reconvention, Donnie Derouen Electrical Service, Inc., and dismissed the claims of plaintiffs-in-reconvention, Robert M. McKay and Mary Katherine McKay, for mental pain, suffering and aggravation. It is also affirmed insofar as it denied the defendant-in-reconvention’s motion to vacate the prior order of December 15, 1980, and overruled said party’s peremptory exceptions of no cause of action. The judgment is recalled and set aside as to the rulings made on the said motion for summary judgment in regard to the other recon-ventional demands asserted by plaintiffs-in-reconvention. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. The costs of appeal are assessed to the plaintiff and the defendants, to be paid in the proportions of one-half by each side.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND REMANDED.

DOMENGEAUX, Judge,

concurring.

I agree with this decision, but insofar as it addresses itself to the question of non-pecuniary damages for mental anguish in contract cases, I again wish to reiterate my disagreement with the jurisprudence on that subject as set out by the Louisiana Supreme Court. See my concurring opinion in Leach v. Freeman, 395 So.2d 440 (La. App. 3rd Cir. 1981). See also footnotes 2 and 3 in Elliott v. Louisiana Intrastate Gas Corporation, 390 So.2d 571 (La.App. 3rd Cir. 1980), an opinion which was authored by me.

      . The record discloses that the motion for partial summary judgment was directed solely at the mental anguish demand, no mention of the other two being made therein. Consequently, the judgment is in error in this regard.

      . The scheduled jury trial has been upset.

      . This court expresses no opinion as to whether the other two demands are recoverable since those issues are not before us.


author: GULOTTA, Judge.

text:
    Max J. NEUSTADTER and Terry Magee v. Andra BRIDGES, Asia Baptist Church and ABC Insurance Company.
    No. 12100.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Rehearing Denied Dec. 18, 1981.

      Rodney P. Vincent, New Orleans, for plaintiffs-appellees.
    Girard J. Fernandez, New Orleans, for defendants and third-party plaintiffs-appellants.
    James A. Gray, II, Jefferson, Bryan & Gray, New Orleans, for Leon Fulton, Stephen Johnson and Fulton and Johnson Ins. Agency.
    Leonard A. Young, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for National Fire & Marine Ins. Co., third-party defendant and appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

This matter arises out of injuries sustained in an intersectional automobile accident. Quantum, insurance coverage, damages for frivolous appeal, and costs are in issue. We affirm.

Plaintiffs, Max J. Neustadter (driver), and Terry Magee (guest passenger) were injured on June 20, 1978, when their vehicle collided with a van driven by Andra Bridges and owned by Asia Baptist Church. Defendants, Bridges and the Church, third partied Leon R. Fulton, Stephen S. Johnson, III, the Fulton & Johnson Insurance Agency, and the National Fire and Marine Insurance Company, alleging that the third-party defendants had provided insurance coverage on the Church’s van and were responsible to Bridges and the Church for any amount that might be cast in judgment to plaintiffs.

After trial on the merits, judgment was rendered in favor of plaintiff Magee and against Bridges and the Church in solido in the sum of $4,200.47, and in favor of Neus-tadter and against the same defendants in the sum of $3,415.97. Judgment was further rendered in favor of Bridges and the Church on their third-party demand against Fulton, Johnson, and Fulton & Johnson Insurance Agency for the same sums payable by Bridges and the Church to plaintiffs on the main demand. The third-party demand against National Fire and Marine Insurance Company was dismissed. Expert fees of a doctor and handwriting expert were taxed as costs payable only by Fulton, Johnson and their insurance agency.

Appealing, the insurance agents contend the trial judge erred in concluding that they had represented to the Church that an insurance binder for liability coverage on the Church’s van was issued prior to the date of the accident. Alternatively, they argue that the insurance company should be bound if they are held liable. The agents further claim that the awards are excessive and that the judge erred in assessing costs against them. Also appealing, third-party plaintiffs, Bridges and the Church (though not quarreling with the finding of liability or the judgment on the third-party demand) contend that Magee and Neustadter’s awards of $3,000.00 each for their pain and suffering are excessive. In answer to this appeal, plaintiffs argue that the appeal is frivolous, entitling them to damages and attorney’s fees.

Since the accident occurred on June 20, 1978 but the effective date of the policy issued by National Fire and Marine was June 23,1978, the issue before us is whether the insurance agents had issued an oral binder to the Church before the accident, thereby assuring it that its van had liability coverage. Evidence on this question was conflicting.

According to the Church’s version, Freddie Johnson, a Church deacon and trustee, phoned the Fulton & Johnson agency and placed insurance with them on a newly purchased van on June 14. The Church on a prior occasion (March, 1978) had obtained an accident and medical expense policy through the Fulton & Johnson agency. According to this witness, in a telephone conversation with Mrs. Byrd, a Fulton & Johnson employee, he was told that a liability insurance binder was issued effective June 14. According to Johnson, Mrs. Byrd did not discuss the need to sign and fill out an application for insurance and indicated to Johnson that there “would be no problem” if the premium were paid within “a week or so.” According to Johnson, they agreed that the Church’s check for the premium would be mailed or brought to the agency’s office.

Freddie Johnson’s testimony was corroborated by that of Rev. Zebadee Bridges, the pastor of the Church, and James H. Bradshaw, Jr., the Manager and Vice President of the Bank of New Orleans, the lending institution which financed the purchase of the van. According to Bradshaw, the bank had a policy of not releasing any funds for the purchase of a vehicle unless it was satisfied that insurance coverage was in effect. Rev. Bridges had arranged the loan with the bank on June 15, 1978. According to Bradshaw, on that date he telephoned the Fulton & Johnson agency and was assured that the van was covered with an insurance binder at that time. With that assurance, the loan was made and the van was purchased.

Following the accident on June 20, Fulton & Johnson received the insurance premium check from the Church. The application for insurance allegedly signed by Zebadee Bridges bore the date “6/23/78” as the date coverage was desired, but the trial court, in examining the document, found that a June 14 date had been “whited out” and the June 23 date written over the earlier date. Rev. Bridges testified that the signature on the document was not his and counsel stipulated that a handwriting expert, Gilbert Fortier, if called by the Church, would testify that the signature on the application blank for insurance was not the same as Rev. Bridges’ comparable signatures on other documents. Fulton & Johnson Insurance Agency’s form “Insurance Binder” was also introduced into evidence and bears the effective date of “6/23/78”.

According to Fulton & Johnson’s version, the insurance binder was not effective until the premium was paid on June 23, 1978. Gloria Byrd, the insurance agency employee who prepared the application, testified that despite Freddie Johnson’s statement to her that he would pay the premium on June 14, no payment was made on that date. On June 23, according to Byrd, Rev. Bridges paid the premium and at that time she redated, from June 14 to June 23, the application and binder she had earlier prepared. Byrd stated that she did not receive a call from the Bank of New Orleans or Mr. Bradshaw on June 14 or 15 and that it was not the policy of the agency to issue a binder over the telephone. She testified that she did not know Rev. Bridges and had never seen Freddie Johnson and she could not issue a binder for a new customer. According to Byrd, she specified to Freddie Johnson that he had to come in the office, complete the application and pay the premium before the binder could be issued.

Byrd’s testimony was corroborated by that of Stephen Johnson, III of Fulton & Johnson Insurance Agency. Johnson stated that his office only issued binders for automobile coverage on the phone if there was existing coverage in force and then only on private passenger vehicles. According to Johnson, a commercial risk such as the Church’s had to be accompanied by a check for the deposit premium to be considered as a completed application.

An. insurance broker has a fiduciary responsibility to the insured as well as to the insurer and is liable for his own fault or neglect. LSA-C.C. Art. 3003; Thomas v. House of Toyota, 286 So.2d 504 (La.App. 1st Cir. 1973), Britten v. Payne, 381 So.2d 855 (La.App. 1st Cir. 1980), writ denied, 384 So.2d 800 (La.1980); Board of Trustees, Etc. v. St Louis Fire & Mar. Ins. Co., 306 So.2d 777 (La.App. 4th Cir. 1974). A client is entitled to recover from an insurance agent any loss sustained by the agent’s failure to obtain the requested insurance, if the agent’s actions warrant an assumption by the client that he was properly insured. Trahan v. Bailey’s Equipment Rentals, Inc., 383 So.2d 1072 (La.App. 3rd Cir. 1980), writ denied, 390 So.2d 1342 (La.1980); Merriell v. Pattison/Bayou Pontiac Co., Inc., 359 So.2d 730 (La.App. 4th Cir. 1978); Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976), writ denied, 332 So.2d 217 (La.1976).

Although no written reasons were assigned by the trial judge, implicit in his ruling in favor of the Church and against Fulton & Johnson Agency on the third-party demand is a finding that the insurance broker’s conduct warranted an assumption by the Church that a binder had been issued for coverage on the van prior to the June 20 accident. The conflicting testimony considered, we cannot say the trial court erred.

We further find no error in the dismissal of the third-party demand against National Fire and Marine Insurance Company. It is clear that coverage was not afforded by the insurer until after the accident when the completed application was submitted by the Fulton & Johnson agency. Fulton & Johnson acted as insurance “brokers” or agents for the insured, the Church, and not as agents or the insurance company. Under these circumstances, any representations made by the brokers to the Church concerning coverage were not binding on the insurer. See Trinity Universal Insurance Company v. Good, 202 So.2d 379 (La.App. 4th Cir. 1967). Likewise, any fault of the brokers in handling the matter for the Church is not imputable to the insurer. See Ackel v. Mid-South Underwriters, Inc., 377 So.2d 496 (La.App. 3rd Cir. 1979), writ denied, 378 So.2d 1389 (La.1980).

We likewise find no error in the $3,000.00 general damage awards to each of the injured plaintiffs.

Dr. Julius Levy, a general surgeon who treated plaintiffs, testified that he first saw Magee on June 23, 1978. This 23-year-old plaintiff complained of pain in his neck and left flank area above the hip and below the ribs. Dr. Levy found restriction of motion in the neck and spasm in the neck muscles on both sides. The doctor diagnosed contusion of the rib cage area and cervical strain. Magee was given medications for pain and spasm, was seen by Dr. Levy on five occasions, and received physical therapy treatment on twenty-two occasions. His condition gradually improved until he was discharged on September 6, 1978. Magee testified that when his vehicle collided with the van he was thrown violently to the right side of his car and hurt the back of his neck and his left side. He stated that he had stayed home five days after the accident before returning to work in the brick laying trade.

Neustadter, the passenger in Ma-gee’s car, testified that he had injured his neck and shoulder when he was thrown into the door of the vehicle. This fifty-three-year old bricklayer was also treated by Dr. Levy for complaints of pain in both upper shoulders, neck and right arm. The physician found muscle spasm with restriction of motion in the neck. Dr. Levy prescribed a muscle relaxant, pain medication and the same physical therapy regimen undertaken in Magee’s case. Neustadter was examined by the physician five additional times and underwent physical therapy twenty-eight times before his discharge on September 11.

Considering the medical evidence, we cannot say the trial judge abused his discretion in awarding each plaintiff $3,000.00 in general damages. The awards are neither excessive nor inadequate.

We do find error, however, in the trial court’s judgment making the expert’s fees payable only by the third-party defendant insurance brokers. Although the taxing of costs is discretionary with the trial judge, it appears in our case to be basically inconsistent to render judgment in favor of plaintiffs and against defendants on the main demand with judgment further in favor of defendants over and against the brokers on the third-party demand, and yet to assess costs solely against the third-party defendants. It apparently was an oversight on the judge’s part not to assess costs against the defendants, Bridges and the Church, on the main demand.

Finally, we reject plaintiffs’ claim that the appeal is frivolous. Although we find no abuse of the trial court’s discretion in the amount of the general damage awards, we find defendants’ arguments serious and well presented. Appeals are to be encouraged, and damages for frivolous appeal do not lie unless it manifestly appears the appeal was taken solely for delay or there was no serious belief in the merits of the appeal. LSA-C.C.P. Art. 2164; Parker v. Interstate Life & Accident Insurance Co., 248 La. 449,179 So.2d 634 (La.1965). We do not find this appeal to be a frivolous one.

Accordingly, for the foregoing reasons, the judgment in favor of plaintiffs and against defendants Bridges and the Church is amended to the extent of assessing costs and expert’s fees against Andra Bridges and Asia Baptist Church, in solido. In all other respects, the judgments on the main and third-party demands are affirmed.

AMENDED AND AFFIRMED.

      . Also named as defendant was an unknown liability insurer of the defendants, styled as the “ABC Insurance Company.”

      . The special damage awards are not contested.

      . See LSA-C.C.P. Art. 1920; Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App. 3rd Cir. 1977).


author: GULOTTA, Judge. BARRY, Judge,

text:
    Wilton LOMBARD v. MANCHESTER LIFE INSURANCE COMPANY.
    No. 12147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Writ Denied Jan. 8, 1982.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., New Orleans, for plaintiff-appellee.
    Organ & Meyer, Coleman T. Organ, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

While a student at L. B. Landry Junior-Senior High School on September 17, 1971, Wilton Lombard suffered the loss of sight in both eyes from a gunshot wound to his face. The incident occurred in Mobile, Alabama after a football game when plaintiff and his teammates on the Landry football squad were disembarking from a bus in a parking lot. The shots were fired by three individuals at a distance of approximately fifty feet from the team.

Suit was brought on April 4, 1977 against Manchester Life Insurance Company for capital sum benefits for the loss of sight of both eyes under insurance policies issued to the Orleans Parish School Board and covering plaintiff as a student and football player at Landry High School. Judgment was rendered in favor of plaintiff for the total amount of capital benefits under two policies of insurance in the sum of $15,000.00 ($10,000.00 under one policy and $5,000.00 under a rider), plus 100% penalties, together with $6,000.00 in attorney’s fees and $570.90 for medical expenses. The total award was $36,570.90.

Defendant, appealing, claims the suit filed approximately five years and six months post accident has prescribed since the policy provides for a three-year-and-ninety-day prescriptive period for the filing of suit after the accident. Defendant further claims the trial judge erred in awarding coverage for benefits under two policies when plaintiff was only entitled to benefits of $5,000.00 under the interscholastic sports coverage rider alone. Defendant also complains the trial judge erroneously assessed penalties and attorney’s fees, and penalties, even if warranted, should be 12% instead of 100%. Finally, Manchester argues lack of coverage since the gunshots were “intentional” and specifically excluded under the policy.

Finding no merit to these contentions, we affirm.

PRESCRIPTION

It is true, as pointed out by defendant, that the contract of insurance provides for a three-year-and-ninety-day prescriptive period for the filing of suit after the date of the accident. It is true also that suit was filed approximately five years and six months post-accident. Nonetheless, we conclude, as did the trial judge, that plaintiff’s suit has not prescribed.

LSA-R.S. 22:215A(3)(g) provides that in group, family group, blanket and franchise health and accident insurance policies:

“. . . The insurer shall furnish to the policy holder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and the provisions relating to notice of claim, proof of loss, time of payment of claim and any other relevant information, including the name and address of the insurer... . ”

Although LSA-R.S. 22:215 was amended by Act 138 of 1972 to include the above language, it is well settled in our jurisprudence that such statutes are remedial, curative, or, procedural in nature and are given retroactive effect. See Lott v. Haley, 370 So.2d 521 (La.1979); Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); Ful Wove v. U. S. Casualty Company of New York, 129 So.2d 816 (La.App. 2d Cir. 1961). Accordingly, we conclude the 1972 amendment applies to an accident occurring on September 17, 1971.

Mrs. Vera Lombard, plaintiff’s mother, testified that she had purchased the health and accident insurance coverage for her son through the Landry School and the school board; that she had paid the required premium; that she had never received a copy of the policy; and that the document given to her, which summarized the coverage, did not state or include the prescriptive period set forth in the master policy. Her testimony was uncontroverted.

Under these circumstances, we conclude the Lombards’ non-discovery of the time limitations was not due to their fault and they are not bound by the policy’s limitation period. We interpret LSA-R.S. 22:215A(3)(g) as imposing a duty on the insurer to disclose to the insured the policy’s limitation on the time for filing suit. Failure to notify the insured of such limitation in the certificate of insurance effectively relieves the insured from complying with the time limitation.

Accordingly, we hold that because no certificate of insurance was furnished to plaintiff and his mother notifying them of the benefits, limitations, exclusions and deductions as required under LSA-R.S. 22:215A(3)(g) as amended, they could not have been informed of the necessity of filing the suit within the three-year-and-ninety-day prescriptive period. Having so concluded, we hold that plaintiff’s action was timely filed.

POLICY COVERAGE

The policy in question is a student accident insurance policy issued to the Orleans Parish School Board that is in the nature of a blanket policy in the capital sum of $10,-000.00. This policy provides for benefits in the full amount of the capital sum where the sight of both eyes is lost. Excluded from coverage are persons who are injured as a result of being involved in interscholastic activities including football, unless a football coverage rider is purchased. Because of Wilton Lombard’s participation on the football team at Landry School, he was afforded an “interscholastic sports coverage rider” that deleted the exclusions from coverage on the main policy. This rider provided payment in the capital sum of $5,000.00. The trial judge, concluding that both the main policy providing for $10,-000.00 coverage and the rider providing for $5,000.00 coverage applied to plaintiff’s loss of sight, awarded a total of $15,000.00 benefits.

Complaining that the trial judge erred in awarding coverage under the main policy and the rider, defendant contends that the $5,000.00 interscholastic sports coverage rider is applicable and not coverage under the main policy. Defendant argues that without this rider plaintiff would not be entitled to any coverage because he would have been excluded from benefits under paragraph (3) of the “insuring agreements” and paragraph (1) of the “exclusions” in the main policy. According to defendant, because plaintiff’s injury occurred in connection with football which was excluded under the main policy, he would not have been entitled to any coverage except that which is provided for under the sports coverage rider. We do not agree.

Plaintiff’s coverage is under paragraph (4) of the policy, which provides for coverage where bodily injuries are caused by accidental means:

“(4) While traveling directly to and from any regularly scheduled and approved School activity with other students or employees of the School as a group, provided, if the Insured is a student, that such group is at the time under the personal supervision of an adult authority of the School; ...”

It is undisputed that the injury resulted while Wilton Lombard was traveling in connection with a regularly scheduled and approved school activity with other students under the supervision of a school authority. It is clear from paragraph (4) of the insuring agreement that the main $10,000.00 capital sum provided for in the accident insurance policy is applicable. Clearly, plaintiff is entitled to that amount as set forth under the dismemberment schedule for the loss of sight of both eyes in the main policy.

The more difficult problem is whether the rider is applicable to plaintiff’s injury in addition to the benefits described under the main policy. In that connection, the rider points out that an additional premium had been paid for the coverage set forth in the rider. In other words, not only did plaintiff pay the premium for coverage under the main policy, but also an additional premium was assessed for coverage under the rider.

The rider provides, in pertinent part:

“INTERSCHOLASTIC SPORTS COVERAGE RIDER
In consideration of the payment of the premium stated herein, it is hereby agreed that agreement (3) of Insuring Agreements and exclusion (1) of Exclusions of the Policy to which this rider is attached is hereby deleted with respect to the interscholastic sport identified in the Schedule of this Rider (herein called Covered Sport) to the extent that coverage is provided hereunder. Persons insured under this Rider are those players of the Holder participating in the play or practice of the Covered Sport as a member of the team or teams identified in the Schedule as a Covered Team. Coaches and managers of the Covered Sports team or teams insured under this Rider are also insured hereunder; provided they are otherwise insured under the Policy.”

It is apparent that the primary purpose of the rider, vis-a-vis our case, is to delete the football exclusion of the main policy. In reading the wording of the rider, however, it is not clear whether the manner in which plaintiff received the injury is covered by the rider and whether coverage under the rider precludes additional coverage under the main policy.

The rider uses the term “participating in the play or practice of the covered sport as a member of the team or teams. . . . ” The question arises whether the injury must occur during actual play in a football game or practice or whether participating in playing football includes other team activities related to actual games or practice sessions. One interpretation of this language is that coverage is afforded when injuries occur during actual play or practice. Another interpretation of the rider is that coverage is afforded where one is injured while participating in a team activity on a football trip. If the rider had specifically stated that coverage was only afforded for injuries occurring during actual play or practice, plaintiff’s injury would not be covered. Silence in this regard causes ambiguity.

Well settled is the rule that where ambiguities exist in a policy, the language is to be read broadly in favor of coverage and any ambiguity is to be construed against the insurer. Insurance Co. of North America v. Solari Parking, 370 So.2d 503 (La.1979); Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958). Under the circumstances of our case, when we read the ambiguously worded policy and rider together, we conclude that plaintiff’s injury while traveling with the football team from a scheduled game entitles him to the benefits of both the rider and the main policy. We cannot conclude that coverage under the rider excludes coverage under the main policy, or vice versa. Accordingly, we find no error in the trial court’s judgment awarding coverage under both to plaintiff in the sum of $15,000.00.

PENALTIES AND ATTORNEY’S FEES

Manchester claims that because no claim was made by plaintiff for benefits under the dismemberment schedule of the policy, and because the claim forms submitted to Manchester indicate injuries resulting from “gun shot wounds of face”, no showing was made that Manchester had knowledge of plaintiff’s total loss of sight. Under these circumstances, and in view of Manchester’s payment of the medical bills actually submitted, defendant argues penalties were erroneously assessed by the trial judge.

Alternatively, citing Rachai v. Natchitoches Parish Police Jury, 370 So.2d 185 (La.App. 3rd Cir. 1979), defendant claims the principal purpose of the policy was to cover medical benefits and such a policy is not a health and accident one. According to the defendant, because the policy in question is not health and accident, LSA-R.S. 22:657, providing for penalties in an amount “. . . double the amount of the health and accident benefits due under the terms of the policy . . .”, was erroneously applied. Manchester claims that if plaintiff is entitled to penalties, it is the 12% penalty provided for in LSA-R.S. 22:658 for policies other than life, health and accident. We reject these contentions.

The policy is designated on it's face as a “STUDENT ACCIDENT INSURANCE POLICY”. It provides for not only medical benefits, but also for scheduled dismemberment benefits, depending on the loss, from one-half to the entire $10,000.00 capital sum. The policy is replete with reference to accidental injury benefits, accidental death benefits and medical and expense benefits. If there exists entitlement to penalties, those penalties are properly assessed under LSA-R.S. 22:657 providing for 100% penalties.

In connection with entitlement to penalties, it is undisputed that a claim for benefits was made by plaintiff’s mother for injuries received. Furthermore, Mrs. Lombard testified that after the claim form had been submitted, Manchester did not contact her or her son to pay benefits under the policy. Mrs. Lombard further testified that she had paid a hospital bill when advised by the hospital that the insurance company had refused to pay it. All of this testimony was uncontroverted.

The test for awarding penalties and attorney’s fees under LSA-R.S. 22:657 is whether the insurer withheld payment of the claim more than thirty days without just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard. Miller v. American Casualty Company, 263 So.2d 398 (La.App. 4th Cir. 1972), writ denied, 262 La. 1151, 266 So.2d 441 (1972); Lapeyrouse v. Pilot Life Ins. Co., 369 So.2d 1128 (La.App. 1st Cir. 1979). Manchester’s unreasonable failure to respond to the claim other than to pay part of the medical expenses subjects it to liability for penalties and attorney’s fees as contemplated in the statute. Accordingly, we find no error on the part of the trial judge either in the assessment of penalties or in the amount of those penalties.

Furthermore, we do not find the $6,000.00 attorney’s fee award excessive. Considering the time expended at the trial and appellate levels, the effort involved and the result accomplished, we find the award reasonable. Although cognizant of plaintiff’s attorney’s effort in defending against this appeal, we decline to increase the amount awarded.

INTENTIONAL INJURY

Finally, we find no merit to defendant’s claim that plaintiff’s injuries resulted from intentional gunshots and are therefore excluded from benefits under the policy. The “EXCLUSIONS” section of the sport’s coverage rider provides:

“No payment of any kind shall be made for injury, death or any other loss caused wholly or partly, directly or indirectly by . . . gunshot injuries (intentional) .. . . ”

Well-established in our jurisprudence is the rule that an insurer has the duty to prove the facts which it asserts exculpate it from liability under exclusionary provisions of the policy. See Lawrence v. Moore, 362 So.2d 803 (La.App. 4th Cir. 1978), writ granted, 365 So.2d 230 (La.1978), appeal dismissed, 368 So.2d 121 (La.1979); von Dameck v. St. Paul Fire & Marine Ins., 361 So.2d 283 (La.App. 1st Cir. 1978), writ denied, 362 So.2d 794 (La.1978) and 362 So.2d 802 (La.1978); Chesky v. Orleans Parish Sch. Bd., 359 So.2d 1002 (La.App. 4th Cir. 1978); Carriere v. Triangle Auto Service, 340 So.2d 665 (La.App. 4th Cir. 1977).

The evidence in connection with the shooting was supplied by the plaintiff only. He stated that he was standing about fifty feet from the persons firing the shot after he had disembarked from the bus. Three shots were fired in the direction of the football team and he was struck in the face. There is no evidence to indicate that the persons firing the weapon intentionally fired at plaintiff or that the wounds were intentionally inflicted upon him by those firing the shots. In the absence of any additional testimony, we cannot conclude the trial judge erred in finding that Manchester failed to prove that the exclusion for “gunshot injuries (intentional)” applies. Defendant simply failed to show that plaintiff is excluded from coverage.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

BARRY, Judge,

concurring.

As to defendant’s plea of prescription, the Proof of Loss clause mandates that said proof be filed within 90 days or one year “except in the absence of legal capacity.” The Legal Actions clause provides that a lawsuit must be filed within three years after the proof of loss requirement. Therefore, the minor plaintiff lacked capacity until his eighteenth birthday which was September 21, 1974 causing prescription to accrue on September 21, causing prescription to 1977. This lawsuit was filed April 4, 1977 which was timely and sufficient to defeat defendant’s plea of prescription.

I join in the balance of the well-reasoned opinion.

      . “INSURING AGREEMENTS
      2. If any person, as a result, directly and independently of all other causes, of bodily injuries caused by accidental means occurring while insured hereunder and while 1) ...
      2) ...
      3) participating in extra-curricular activities (excluding the play or practice of any form of interscholastic football in which students participate or ice hockey, lacrosse or soccer in which any student participates) under the supervision of the Policyholder during a school term in which the insured person is either regularly enrolled as a student or actively employed under the supervision of the Policyholder;
      4) ...
      5) ...
      6) ...
      (which injuries are herein called ‘such injuries’) shall suffer loss of life, hands, feet or sight with in 100 days following the date of the accident causing such injuries or shall actually be examined in person and treated by a physician or dentist within thirty days following the date of such accident and shall incur expenses for such treatment or for hospital confinement, professional ambulance service or the services of a Registered Nurse within twelve months following the date of such accident, the Company shall pay, subject to the terms and conditions of this Policy, the benefits hereinafter provided: For the purpose of this insurance an extracurricular activity shall be deemed to be under the supervision of the Policyholder only if the activity is directly supervised by an employee specifically designated by the Policyholder for that purpose who is physically present at the place where the activity is being conducted.”

      . “EXCLUSIONS
      No payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly by:

        (1) Injuries sustained as the result of participating in or while practicing for interscholastic tackle football in grades 7 through 12 including travel to or from such activities or practices (unless football coverage is purchased);


text:
    Allen H. BORNE v. The CITY OF NEW ORLEANS, et al.
    No. 12162.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Writ Denied Jan. 8, 1982.

      Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiff-appellant.
    Yada T. Magee, New Orleans, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Plaintiff’s suit for injunctive relief to restrain the City of New Orleans from demolishing his two-family, residential rental property and for damages resulting from the demolition was dismissed by the trial judge. Plaintiff appeals. We affirm.

On August 25, 1967, Allen H. Borne purchased the subject property located at 516-18 General Taylor Street in the City of New Orleans. The sale from Eureka Homestead recites a consideration of $8,400.00. According to Borne, the property was subsequently occupied by tenants from whom he derived rental revenue. After extensive renovation and destruction of the property caused by tenants and vandals, Borne boarded the property for safety reasons in 1973. Real estate tax research on the property revealed not only unpaid taxes due from 1972 through 1978, but also “uninhab” liens for the same period. The taxes and liens from 1972 through 1978 total $8,672.30. The “uninhab” liens bearing against the property resulted from City inspections required because of the dilapidated and dangerous condition of the property. In addition to the outstanding liens and taxes due the City, there existed a balance owed to the homestead on the vendor’s lien and mortgage in excess of $5,000.00 in June, 1978.

On June 19, 1978, plaintiff sought an injunction to restrain the City from demolishing the property. The trial judge on the same date, issued a temporary restraining order against the City and set a hearing for June 23, 1978 on the demands for preliminary injunction. Thereafter, apparently, negotiations took place toward a settlement of the outstanding liens and taxes. During these negotiations and after the expiration of the extensions of the TRO, however, demolition of the property was commenced by the City Although plaintiff had objected to the demolition after learning of the City’s action, it was agreed by the City and plaintiff that the property would be completely demolished. This agreement was reached for the reason that partial demolition had caused a safety problem. Plaintiff thereafter amended his petition to pray for damages from the demolition.

It is plaintiff’s position that the City failed to show that the liens were properly placed against the property when it was securely boarded and not dangerous; that the City commenced demolition contrary to its agreement not to demolish pending settlement negotiations; that the unauthorized liens prevented plaintiff from selling the property to a third party for the sum of $6,700.00; and that plaintiff suffered damages as a result of the demolition and possible foreclosure of the property or sale of the property to the City for unpaid taxes. Plaintiff also attacks the constitutionality of the ordinances allowing “uninhab” liens.

The trial judge, in well written and well considered reasons stated:

“In the instant matter the evidence fails to support the allegations of unconstitutionality regarding the ordinances in question. Nor does the evidence support the allegations of an agreement by the City Attorney’s Office to refrain from demolishing the property located at 516-18 General Taylor Street in violation of an ‘alleged agreement’ by the City Attorneys not to proceed further towards the demolition of plaintiff’s property.
The agreement of the parties or their attorneys vel non to extend an expired temporary restraining order (more specifically the TRO dated June 19, 1978 and the two extensions dated June 23, 1978 and June 29,1978) in the absence of court approval, was inadequate and insufficient. The plaintiff’s suit will be dismissed.

Judgment will be granted accordingly.”

The record supports the trial court’s conclusion. Subsequent to the issuance of the TRO on June 19, 1978 and its extension to 10 days after June 29, 1978, no hearing was held on the preliminary injunction. More importantly, plaintiff failed to establish that any agreement for a moratorium on demolition existed between him and the assistant city attorney negotiating the settlement of the tax and lien assessment. In this connection, it is important to recognize that Tom Anzelmo and Jack Panno were handling the negotiations on the part of the City and that Charlotte A. Hayes and A. D. Freeman were handling the negotiations on behalf of plaintiff.

Plaintiff attempted to establish through the testimony of Salvatore Panzeca, an assistant city attorney, and A. D. Freeman, plaintiff’s attorney, that an agreement was made by the City not to demolish the property pending negotiations. While Freeman’s testimony is supportive of the existence of an agreement, Panzeca’s testimony was not. The problem from the plaintiff’s standpoint is that Panzeca’s discussion with plaintiff’s attorney clearly indicated that he was not the assistant city attorney handling the negotiation and that although he was in agreement that a settlement should be reached with plaintiff, the decisions were clearly left to Panno or Anzelmo who were handling the problem for the City Attorney’s office. The pertinent part of Panze-ca’s testimony in this regard is as follows:

“Q. Mr. Panzeca, didn’t you agree on behalf of your employer, the City, not to tear down our building while we were negotiating? Didn’t you agree to that?
A. As I said earlier, Mr. Freeman, to extend the temporary restraining order over the telephone with Miss Hayes. I agreed in July that if that was a workable arrangement until such time as she could meet with or agree with Mr. Anselmo and Mr. Panno to try to work out the problem, then yeah, sure, the thing should stay at a status quo until such time that all efforts had been exhausted to reach an agreement because it was a simpler solution to reach an agreement than it was to continue to fight the matter out in court. I said yes, that if that’s what Anselmo or Panno agreed to, then yes, that would be fine. That was the context of what I agreed to. She talked a lot, and I listened a lot.”

Further, in answer to a later question whether or not Mr. Panzeca had ever entered into an agreement with plaintiff’s attorney, Panzeca testified:

“A. My first agreement was with Mr. Freeman’s associate, Miss Hayes. That was in July of 1978. I told the Court already, and I’ll repeat it again. My agreement with her was ‘Yes, I think this is a type of case that should be settled. Yes, in that direction we should extend the t.r.o. if that’s what was agreed upon. No action should be taken until efforts have been exhausted as to settle the matter or not settle the matter.’ That was my agreement. I was confirming with her her statement that two other Deputy City Attorneys had agreed not to go forward with the matter as long as the t.r.o. was there.”

The record also contains letters dated July 7 and July 18 from plaintiff’s attorney to Mr. Panzeca confirming the existence of an agreement that no further action toward demolition would be undertaken by the City pending negotiations as well as a copy of letter dated August 9, 1978 also confirming an agreement. Panzeca acknowledged receipt of communications relative to possible compromise. He stated, however, that he could not confirm or deny from these letters what agreement Panno or Anzelmo had reached with plaintiff. These letters were apparently not acknowledged in writing, and Panzeca stated he had never sent a letter extending the TRO.

A fair evaluation of Panzeca’s testimony was that, pending possible settlement of the dispute, the TRO should be extended, if that had been the arrangement which plaintiff’s counsel had previously worked out with Anzelmo or Panno. Neither Panno nor Anzelmo testified. We might add at this point that Freeman’s testimony was to the effect that agreement had been made between him, Panno and Anzelmo that the building would not be torn down. Freeman did not testify that he had made the agreement with Panzeca, and the letters sent to Panzeca were in confirmation of an earlier agreement made by Freeman with Panno and Anzelmo. No explanation is given by plaintiff why Panno and Anzelmo were not called either to confirm or deny the existence of the agreement.

In connection with the claim for damages in the supplemental and amended petition resulting from the demolition, Borne testified that Evelyn Johnson had agreed to purchase the property on April 12, 1976 for $7,600.00. This was before the property was demolished but while it was boarded up. Because of the City’s liens on the property, the act of sale was not passed. After demolition, on September 7, 1978, Johnson again made an offer to purchase the vacant property for $5,000.00.

A plaintiff seeking injunctive relief from the enforcement of an ordinance must show: 1) the clear invasion of a property right; 2) threatened irreparable injury; and, 3) the manifest unconstitutionality of the statute. National Food Stores of Louisiana, Inc. v. Cefalu, 280 So.2d 903 (La. 1973). Plaintiff in our case, has the burden of showing, among other things, unlawful demolition.

Significantly, plaintiff offered no evidence to show that the liens were unconstitutionally or improperly placed upon the property. Furthermore, in the absence of an enforceable agreement by the City not to demolish the property after the expiration of the TRO, plaintiff failed to show the property was not properly demolished. Under these circumstances, we cannot say the trial judge erred in dismissing plaintiff’s suit for injunctive relief or for damages.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . It is not clear whether this is a sale and resale and the $8,400.00 represents the amount loaned by the homestead, or whether this is in fact the purchase price.