author: SWIFT, Judge.

text:
    Lee J. DAUZAT, Plaintiff-Appellant, v. NOVA FORD, et al., Defendants-Appellees.
    No. 8471.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Denied Feb. 19, 1982.
    David Townsend, Opelousas, for plaintiff-appellant.
    William J. Bennett, Marksville, for defendant-appellee.
    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.

The .plaintiff, Lee J. Dauzat, filed this suit for a declaratory judgment against the defendants, the Fords, seeking to be declared the legal owner of a certain tract of land situated in Avoyelles Parish, Louisiana, by virtue of thirty years acquisitive prescription. The defendants answered denying the plaintiff’s right of ownership and filed a reconventional demand asking to have a fence line, built by the plaintiff across the northern part of the disputed tract, removed to another location. The trial court rendered judgment dismissing both the main and reconventional demands. From this judgment only the plaintiff, Lee J. Dauzat, perfected an appeal. Defendants have not answered the appeal.

In 1943 the plaintiff-appellant purchased a tract of land from Victor Bordelon situated in an area known as “Barbin’s landing.” This tract was described as containing twelve acres, more or less, bounded on the north by a public road, on the east by the Red River and on the south and west by Ben Walker, the defendants’ ancestor in title.

In 1963 Oliver Ford acquired a tract of land containing approximately 28 arpents from Taitón L. Valrey, the successor-in title to Ben Walker. In 1978 Ford conveyed this property to his children, the defendants. According to the deed from Valrey to Ford, this tract was bounded on the north by Ferdinand Bordelon and by Lee J. Dauzat, on the south by property formerly belonging to H. F. Barbin, on the east by Lee J. Dauzat and the Red River and on the west by Gordon Bayou. It formed an L-shape, joining the land acquired by the plaintiff from Bordelon on that tract’s west and south sides, and its southern part extended east to the river.

Sometime before 1945 a public road and a levee were constructed to the west of the Red River, running in a northerly-southerly direction. This road and levee divided the Dauzat property into two parts and their southerly extensions cut off approximately one acre from the east side of the southern portion of the Ford tract. The ownership of this one acre tract situated east of the road and west of the river is in dispute in this suit.

In 1947 Mr. Dauzat began to graze cattle over the eastern part of his 12 acre tract and the disputed parcel and he did so until 1979. Dauzat testified that in 1947, “Well there was no fence to talk about” on the one acre tract. However, the plaintiff said that about this time he built a fence between the eastern side of the public road and the western side of the levee which he contends enclosed the disputed property with fences on the west and south, the Red River on the east and the eastern part of Dauzat’s land on the North. However, there were only remnants of a fence in the area of the northern boundary of the disputed property and we have not been able to determine with any degree of certainty that there was a fence on the south boundary of the disputed tract until 1979 when one was erected by the plaintiff. There was also a fence on the western side of the public road where it crossed the lower portion of the Ford tract.

In December of 1962 the plaintiff had his property surveyed. The survey plat reflected that the disputed tract was not a part of the land plaintiff purchased from Victor Bordelon in 1943. Sometime thereafter plaintiff asked Oliver Ford to help him repair what appears to have been a fence along the road on the western side of the disputed property. Mr. Ford told him he did not have time and to “go head and make the fence you want but don’t touch this old fence,” apparently referring to the remnants of the fence which defendants contend was on the true northern boundary of the disputed property. At this time Mr. Dauzat showed Mr. Ford the plat which indicated that the northern boundary of the disputed acre was south of the old fence line.

In 1979 two of the defendants, Oliver Ford, Jr. and Lionel Ford, visited the plaintiff and asked him to remove the road fence on the western boundary of the disputed property. The plaintiff asked the defendants whether he could buy or lease this property, but the latter refused the offer. Approximately ten days later the defendants’ mother, Mrs. Oliver Ford, cut the plaintiff’s fence on the east side of the road in two places, because of his failure to remove the fence.

Following this incident the plaintiff erected two fences running in an easterly-westerly direction along what he considered to be the north and south boundaries of the disputed tract. However, he placed cattle gaps therein and continued to cross his cattle over the disputed tract in order for them to graze on his southern tract.

The only activities that the defendants and their ancestors in title conducted on the disputed tract were crossing the property to go swimming and fishing, picking berries and hunting for rabbits.

The defendants presented testimony to the effect that Oliver Ford protested a number of times to plaintiff that he was on his property and requested Dauzat to remove the road fence along the western boundary of the disputed tract. However, the plaintiff testified that his possession and use of the property was uncontested until just before the defendants cut the fence in 1979. The defendants also testified that the plaintiff removed some dirt from the disputed tract and upon Oliver Ford’s protest this was stopped. On the other hand, the plaintiff testified that the dirt was being removed from his own property on the north, not from the disputed tract.

The sole issue presented on this appeal is whether Lee J. Dauzat’s possession has been sufficient to give him a thirty-year prescriptive title to the one acre in dispute.

One of the grounds given by the trial court for dismissal of suit was that the plaintiff had failed to meet his burden of proving that his possession of the disputed property had been open, corporeal, continuous, unequivocal and as owner for a period of 30 years. Whether or not the plaintiff actually had continuous possession of the land as owner for 30 years involves questions of fact. Upon appellate review such findings of the trial court should not be disturbed unless manifestly erroneous. Meridian Land and Mineral Corporation v. Bagents, 211 La. 627, 30 So.2d 563 (La.1947); Barrett v. White, 386 So.2d 945 (La.App. 3 Cir. 1980).

In Wm. T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333, 1336 (La.App. 3 Cir. 1977), this court said:

“The law is settled that in order for a possessor to successfully claim the ownership of immovable property under a plea of thirty years acquisitive prescription, he must establish not only that there has been corporeal possession of the property for the required period of time, but also that there was a positive intent to possess the property as owner during that time. The intent to possess as owner may be inferred from the surrounding facts and circumstances. Ordinarily, however, the intent to possess as owner should not be inferred unless the actions of the possessor, or the surrounding facts and circumstances, are sufficient to reasonably apprise the public, and the record owner of the property, of the fact that the possessor intended to possess as owner. The burden of proof to establish the facts essential to support a plea of thirty years acquisitive prescription rests on the party who pleads it. Humble v. Dewey, 215 So.2d 378 (La.App. 3 Cir. 1968), and cases cited therein.” [Emphasis added.]

In regard to the character of his possession, Mr. Dauzat’s own testimony indicates that he did not consider himself owner of the disputed property. His attempt to get the Fords to join him in rebuilding the fence, his showing Oliver Ford the plat of survey reflecting the true boundary between his northern property and the disputed tract and his offer to lease or buy this acre in 1979, instead of proclaiming ownership, all contradict the plaintiff’s contention that he had. a positive intent to possess the property as owner while grazing his cattle thereon. Certainly these acts would not reasonably apprise the record owners of the land of the fact that he intended to possess it as owner to their exclusion.

From our review of the record we are unable to say that the trial judge was manifestly in error or clearly wrong in finding that the plaintiff’s possession of the disputed one acre tract has been “unequivocal and as owner for a period of 30 years.” Therefore, his plea of 30 years prescription is unavailing.

For the foregoing reasons, the judgment of the district court is affirmed at the cost of plaintiff-appellant.

AFFIRMED.

      . Approximately eight years earlier plaintiff had purchased the property south of the disputed property. If there was a fence between these two tracts it seems that it was removed thereafter.


source: Caselaw Access Project

author: LABORDE, Judge. CULPEPPER, Judge,

license: Public Domain

text:
    Ollie Mae JACKSON, Plaintiff-Appellee, v. ST. LANDRY PARISH SCHOOL SYSTEM, Defendant-Appellant.
    No. 8480.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearings Denied Jan. 4, 1982.

      Young & Burson, I. J. Burson, Jr., Eunice, for defendant-appellant.
    Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.

      . By Supplemental and Amending Petition, the St. Landry Parish School Board, instead of the St. Landry Parish School System, was named as defendant.

   LABORDE, Judge.

Plaintiff Ollie Mae Jackson brought this suit against the defendant school board seeking reinstatement to her former position as a school teacher as well as back pay and damages. The trial court rendered judgment in plaintiff’s favor; defendant appealed. Plaintiff answered the appeal.

We affirm.

The substantial issue is whether plaintiff’s former position as a teacher was protected by the Teacher Tenure Law, LSA-R.S. 17:441 et seq.

Plaintiff, a certified teacher with a Bachelor of Arts degree, was appointed by the St. Landry School Board on September 17, 1970, to teach second grade students at Plaisance Elementary School for the 1970-71 school term. Plaintiff taught through the last day of March 1971, on which date she was injured in an automobile accident. As a result of her injuries, she requested and was granted an authorized leave of absence without pay covering the remainder of the school term which included the months of April and May.

Plaintiff was reappointed by defendant for the following year but due to strained relations with a few members of the Plai-sance Elementary faculty, she was assigned to Lawtell Elementary School. She taught kindergarten students during the 1971-72 school term.

For the 1972-73 school term, plaintiff was reappointed to Lawtell Elementary School. That year she taught third grade students, teaching through June of 1973.

Near the end of the 1972-73 school term, James Billeaudeau, the principal of Lawtell Elementary, informed plaintiff that he was asking the school board not to reassign her to his school because of conflicts she had with some faculty members. Plaintiff then wrote to Henry Monteilh, assistant superintendent in charge of personnel for the St. Landry School Board System, mentioning the discussion and requesting that she be transferred to another school within the system, preferably in Opelousas.

The 1973-74 school term for St. Landry Parish schools began on August 24, 1973. Plaintiff, on that date, was confined to a hospital in New Orleans where she was recovering from injuries received in an automobile accident on July 26, 1973. She had been transferred to New Orleans from Opelousas. At this juncture, plaintiff and defendant offer conflicting stories regarding the events that transpired. Plaintiff claims that while in Opelousas General Hospital, which spanned from the date of the accident until August 11, 1973, she spoke to Mr. Monteilh several times informing him that she was in the hospital and would return to work when she got out. She testified, as did her sister Maudry Darjean, that she received her teaching contract while in the hospital in New Orleans, promptly signed it and returned it to the school board office. She also states that she received a letter from Mr. Billeaudeau, her principal at Lawtell Elementary, telling her to report to school on August 24th and 25th for a workshop. She claims that on one of those two days her sister, and shortly thereafter her friend Ollie Stephens, reminded Mr. Billeaudeau that plaintiff was in the hospital but would return to school as soon as she was discharged. Plaintiff further states that immediately after she was discharged from the hospital in mid-September of 1973, she visited the school board office where she was informed that she had not been reassigned to Lawtell Elementary but that the office was looking for another position for her to fill. It was not until several months later that defendant advised plaintiff to see an attorney because she would not be hired. Plaintiff filed this suit on October 10, 1974.

According to defendant, plaintiff never returned a signed contract to the school board office for the 1973-74 school term. Nor did she communicate with the Lawtell Elementary School office until September 6, 1973, on which date plaintiff and her attorney each wrote a letter advising that plaintiff was hospitalized due to an accident and would be late in reporting to work. It is defendant’s position that plaintiff either never achieved the status of a tenured teacher, or that she abandoned or surrendered her position in St. Landry Parish, or that due to her delay in prosecuting her claim, it should be barred.

The removal of a teacher is governed by the Teacher Tenure Act, LSA-R.S. 17:441 et seq., which is designed to protect the job security of teachers in the best interest of the public school system.

Under the Act, to acquire tenure one must meet the definition of a teacher in LSA-R.S. 17:441:

“As used in this sub-part, the word ‘teacher’ means: (1) Any employee of any parish or city school board who holds a teacher’s certificate and whose legal employment requires such teacher’s certificate.”

Clearly plaintiff comes within the definition in LSA-R.S. 17:441(1) in that she was an employee of a parish school board, held a teacher’s certificate, and was required by the regulations of the Department of Education to hold a teacher’s certificate for her employment.

Having determined that plaintiff is a “teacher” within the intendment of the Teacher Tenure Law, the next inquiry focuses upon plaintiff’s status as a teacher, i.e., probationary or permanent.

LSA-R.S. 17:442 provides:

“Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.
Any teacher found unsatisfactory by the parish or city school board, as the case may be, at the expiration of the said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city, as the case may be, in which he has successfully served his three year probationary term; all teachers in the employ of any parish or city school board as of July 31, 1946 who hold proper certificates and who have served satisfactorily as teachers in that parish or city for more than three consecutive years, are declared to be regular and permanent teachers in the employ of the school board of that parish or city.”

The trial court, considering the law here-inabove cited and relating the law to the facts established at trial, made the following findings and conclusions:

“(1) That plaintiff was a teacher as defined by R.S. 17:441 from the beginning of her employment on (at the latest) September 17, 1970, and all times subsequent which are pertinent to this suit; that, although plaintiff did obtain “T” Certificate to enable her to teach kindergarten for the 1971-72 school term, she also held a regular “C” Certificate during that and the other two years involved. No law or Board of Education regulation is pointed out to the effect that the “C” Certificate was inoperative because of her possession of the “T” Certificate.
(2)That for three calendar years after said commencement date, plaintiff served as probationary teacher by teaching all of three teaching years (188 days) except for one day of unauthorized leave in 1971, two months of authorized sick leave in 1971, scattered days of authorized sick leave throughout the period and several days prior to employment for the first school year or prior to her notification of employment in subsequent years. Although the Piper [v. East Baton Rouge Parish School Board] case ([213 La. 885], 35 So.2d 804) holds that the word “year” means a calendar instead of a scholastic year, it is a practical impossibility for an ordinary teacher (as distinguished from a principal or specialized education instructor) to teach 52 weeks in a year. Accordingly, it must be taken that a teacher serves a calendar year by teaching substantially all of the teaching year, subject to the School Board’s having the right to act within the three calendar-year term.
(3) That, during said three years’ probationary period, plaintiff was not discharged or dismissed by defendant School Board upon written recommendation of the superintendent, accompanied by valid reasons therefor as required by R.S. 17:442, Paragraph 1. See Serignet [v. Livingston Parish School Board] case at 282 So.2d 761; [State ex rel. Nobles v.] Bienville [Parish School Board] case at [198 La. 688], 4 So.2d 649 and Fleming [v. Concordia Parish School Board] case at 275 So.2d 795.
(4) That, at the end of said probationary period and for such reasonable time thereafter as was necessary for defendant to act, plaintiff was not notified in writing of any dismissal or discharge by defendant School Board as required by Revised Statutes 17:442, Paragraph 2.
(5) That, as a consequence of 1, 2, 3 and 4 above, plaintiff became a permanent or tenured teacher after a reasonable time subsequent to the end of her probationary period. See cases cited above.”

Upon our review we find no error of the trial court warranting reversal. We would merely add to the cases cited the following, Castille v. Evangeline Parish School Board, 304 So.2d 701 (La.App. 3rd Cir. 1974) writ refused, 309 So.2d 342 (La.1975); McGraw v. Iberia Parish School Board, 310 So.2d 139 (La.App. 3rd Cir. 1975) writ denied, 313 So.2d 827 (La.1975); Palone v. Jefferson Parish School Board, 306 So.2d 679 (La. 1975); and Coburn v. Vernon Parish School Board, 364 So.2d 231 (La.App. 3rd Cir. 1978).

Upon attaining the status of permanent teacher, the Teacher Tenure Law sets forth a detailed procedure which must be adhered to in order to perfect the proper removal of that teacher.

LSA-R.S. 17:443 provides:

“A permanent teacher shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, or of advocating or in any manner performing any act toward bringing about integration of the races within the public school system or any public institution of higher learning of the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least fifteen days in advance of the date of the hearing, the school board shall furnish the teacher with a copy of the written charges. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at the said hearing. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or of incompetency, or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, or of advocating or in any manner performing any act toward bringing about integration of the races within the public school system of the state of Louisiana, and ordered removed from office, or disciplined by the board, the teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.”

The record clearly reflects that his procedure was not followed. Since the alleged removal of plaintiff did not comply with the Teacher Tenure Law, it has no legal effect. We hold, as did the trial judge, that plaintiff is entitled to be reinstated to a teaching position in the St. Landry School system.

The School Board seeks to neutralize this procedural deficiency by arguing that in any event, plaintiff abandoned or surrendered her status of permanent teacher by seeking other employment and by delaying in prosecuting her claim. We hold that a discussion of plaintiff’s alleged action or inaction is irrelevant due to the fact that the Teacher Tenure Law places the onus on the School Board to effect a proper removal and not on the teacher.

Defendant next contends that plaintiff’s claim is barred by either prescription or estoppel by laches.

We will discuss the prescription issue first. The trial court, in this regard, cited LSA-R.S. 17:443 B which grants a permanent teacher, removed after a formal hearing and a finding of guilty, one year from that finding to petition the district court for a hearing to review the school board’s action. The trial court then held:

“That the one-year limitation in R.S. 17:443-B is inapplicable because there was no formal board hearing; that defendant invokes no other specific prescription statute in either pleading or brief and the plea of prescription must be denied.”

We find no error in the reasoning used and conclusion reached by the lower court in deciding the issue of prescription.

Equally without merit is the defendant’s contention that plaintiff’s claim is barred by estoppel by laches.

The doctrine of estoppel by laches is an equitable one. It addresses itself to the evidentiary effect of delay. It is based on the injustice that might result from the enforcement of long neglected rights, the difficulty, if not the impossibility, of ascertaining the truth of a matter in controversy, and doing justice between the parties and on the public policy of discouraging stale and antiquated claims in the interest of the peace and repose of society. Barnett v. Develle, 289 So.2d 129 (La.1974). When the claims are asserted against public bodies and involve the public fisc, in order to invoke the doctrine of estoppel by laches, defendant must prove (1) unreasonable delay by the plaintiff in presenting those claims that arose within one year prior to suit and (2) substantial prejudice to or upset of the public body’s fiscal affairs. Bradford v. City of Shreveport, 305 So.2d 487 (La. 1974); and Devillier v. City of Opelousas, 247 So.2d 412 (La.App. 3rd Cir. 1971).

Returning to the facts, plaintiff’s attorney filed the original suit on October 10, 1974, alleging breach of contract. In paragraph 7 of the original petition, plaintiff alleged that she was beginning her fourth year as a teacher which may give her tenure in the St. Landry System.

Plaintiff’s attorney filed a supplemental and amended petition on December 23, 1974, amending paragraph 7 of the original petition to read as follows:

“Petitioner was not given her assignment at Lawtell Elementary School, despite the fact that petitioner was assigned to that school on August 13, 1973 and that she was beginning her fourth year as a teacher which gave petitioner tenure in the St. Landry Parish School Board.” (Emphasis ours)

From the beginning, defendant School Board was aware that plaintiff wanted her job back when she presented herself on September 17, 1973, ready, willing and able to begin working. She had recovered from an automobile accident. She testified that the School Board led her to believe that she would get a job during that year but they finally told her to hire an attorney. She did so and on September 10, 1974 Paul Valteau wrote to Mr. Monteilh asking for a hearing before the school board to discuss their failure of rehiring Ms. Jackson for the 73-74 school term.

In addition, plaintiff’s attorney corresponded with defendant’s attorney about plaintiff’s request and right to be reinstated as a tenured teacher in the parish system. On January 9,1975, plaintiff sent a letter to the defendant school board asking for a job. On September 27, 1977, David Dennie enrolled as counsel for plaintiff. In December of 1978, plaintiff’s present attorney was hired, amendments were filed and the case proceeded to trial.

The lower court considered all of this and in written reasons held:

“Estoppel by laches is not applicable herein because, even if the suit filing was unduly delayed, payment of the amount then (at suit filing) due would not prejudice the orderly fiscal processes of the defendant School Board. Although payment of the amount ultimately awarded herein might have that consequence, all of the award herein, except the first year’s earnings, accrued after suit and resulted from the inaction of both parties; and the School Board was on full notice as to the claim and its ultimate exposure from, at the latest, suit filing. See Jefferson Parish School Board case, above; Bradford [v. City of Shreveport] case at 305 So.2d 487; Gibson [v. Doyle] case at 307 So.2d 679 and Devillier [v. City of Opelousas] case at 247 So.2d 412.”

Finding no manifest error, we affirm.

As a final matter, plaintiff has answered this appeal requesting an increase in the amounts awarded.

The trial court awarded plaintiff $57,-900.00 in back pay for the years 1973-1980. The lower court also ordered defendant to reinstate plaintiff in the St. Landry School system within a reasonable time after the finality of the judgment with plaintiff, until reinstatement, being entitled to further earnings for the beginning of the 1980-81 school year at the rate of $14,173.00 per year and at the proper rate for any years thereafter. These awards were then offset by money plaintiff earned during the period ($15,995.40) as well as withholding taxes and employee teacher retirement contributions. Legal interest from date of judicial demand was allowed on all amounts due plaintiff.

Plaintiff asks this court to affirm the judgment in all respects except that she be awarded back pay for each school year from 1973 to the present and until reinstated at the rate she would have been paid by the St. Landry School Board, that no offset of earnings and no deductions of taxes and retirement be made, and that she be awarded an additional $20,000.00 for mental anguish, suffering, anxiety and attorneys fees.

Absent an initial determination that the trial court’s very great discretion in the award of damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979), Reck v. Stevens, 373 So.2d 498 (La.1979). The record reveals no such abuses.

For the above reasons the judgment appealed from is affirmed. Costs are assessed against the defendant-appellant in the amount of $1,008.05, as provided by law.

AFFIRMED.

CULPEPPER, J., dissents and assigns reasons.

CULPEPPER, Judge,

dissenting.

I can agree with the majority that the plaintiff acquired tenure in 1973. Although there is much equity in favor of the School Board’s position that they thought the plaintiff had decided to quit teaching, because she did not obtain a contract to teach for the 1973-74 school year and did not advise the School Board until a month after school had started in the fall of 1973 that she wanted to teach, nevertheless, construing LSA-R.S. 17:442 strictly, the School Board should have notified plaintiff in writing at the end of her 3-year probationary term that she was dismissed. The statute provides that in the absence of such notification, the teacher automatically becomes tenured. There was no such notice by the School Board in the present case.

However, I think laches clearly bars plaintiff’s claim. The majority holds that since plaintiff filed suit on October 10,1974, the School Board had notice from that time as to the full amount of plaintiff’s claim and the School Board’s ultimate exposure, thus giving the Board an opportunity to adjust its budget accordingly and avoid prejudice to the public fisk. I cannot agree. A close examination of the original and supplemental petitions filed by plaintiff in 1974 and the amendment of these pleadings in 1979, shows that the School Board did not have notice until 1979 that plaintiff was claiming back pay from 1973 to 1979 and also requesting reinstatement as a tenured teacher.

The original petition filed by plaintiff on October 10, 1974 was entitled a suit for “Breach of Contract for Personal Services.” The petition alleged that plaintiff had a contract to teach kindergarten at the Law-tell Elementary School for the 1973-74 school year. The prayer of this petition is for loss of wages for the 1973-74 and the 1974-75 school years, totaling $14,400 damages to plaintiff’s professional credentials in the sum of $20,000 and attorney’s fees in the sum of $10,000, totaling $44,400. There is no prayer for recognition of tenure or for reinstatement. Of course, plaintiff did not as a fact have a contract to teach at Law-tell Elementary or at any other school in St. Landry Parish for the 1973-74 school year. No such contract was proved on the trial of this case.

On December 23, 1974, plaintiff filed a supplemental and amending petition adding an allegation that on September 17, 1973 (which was one month after school started in August of 1973) petitioner presented herself to the principal at Lawtell ready and willing to take up her teaching assignment. In the amended petition, she again prays only for wages lost under the alleged contract. She does not pray for recognition of tenure or for reinstatement.

Of course, the School Board knew that she did not have a contract to teach for the 1973-74 school year. Moreover, the School Board had plaintiff’s letter of date May 23, 1974 addressed to Mr. Henry Monteilth, Jr., assistant superintendent, requesting a transfer from Lawtell Elementary and seeking a new assignment to a school in Opelousas. The majority opinion states plaintiff’s letter said “preferably in Opelou-sas”, but the letter clearly states “I am not seeking a transfer outside of Opelousas.” From this, the School Board was clearly justified in thinking that if plaintiff could not be assigned to a school in Opelousas she did not want to teach. Mr. Monteilth testified that he tried to find an assignment for plaintiff in Opelousas and was unable to do so.

The School Board reasonably believed that they had a perfect defense to plaintiff’s original and supplemental petitions filed in 1974. The Board knew plaintiff had no contract to teach in 1973-74, it had her letter specifying that she requested an assignment to teach only in Opelousas, and the Board knew that it could not find an assignment for plaintiff in Opelousas.

After 1974, plaintiff took no further action in her suit for almost five years. She employed a new lawyer and filed a supplemental petition on April 9, 1979 seeking loss of wages for 1973-79 in the sum of $75,000, damages to petitioner’s professional credentials in the sum of $100,000, attorney’s fees in the sum of $20,000, and loss of future income in the sum of $150,000, totaling $345,000. The prayer of her 1979 amended petition is for judgment in the sum of $345,-000, recognition of her tenure and reinstatement as a teacher. Thus, plaintiff waited for five years after filing her original and supplemental petitions in 1974 before claiming for the first time any wages beyond 1975 and requesting recognition of her tenure and reinstatement as a teacher. I think these claims are barred by laches.

The leading case in this State on laches is Fields v. Rapides Parish School Board, 231 La. 914, 93 So.2d 214 (1957), involving a tenured teacher who failed to report for duty at the beginning of the school term in September of 1946. In August of 1948 the school superintendent advised her that she had been replaced. She filed two suits for reinstatement, but both were dismissed on dilatory exceptions. Two years and eight months later she filed another suit, which was dismissed for laches. In affirming the district court, our Supreme Court stated:

“ ‘The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy. The processes of government must go on and employees and officials must be paid out of public revenue for carrying on the functions of government. Where a discharged employee sits idly by for an unreasonable length of time without pressing his claim for reinstatement, those charged with the duty of securing the necessary working personnel cannot hold up the administrative functions of government awaiting a decision on the part of the discharged employee as to what course he will take. The prevention of duplication of positions and the payment of double salaries requires such discharged employee, not only to press his demands, but also to submit his claim to the courts for adjudication without unnecessary delay.’ ”

In the present case the plaintiff waited much longer than the plaintiff in Fields to press her claim for reinstatement and back pay. I think she is clearly barred by laches. Her suit should be dismissed at her costs.

For the reasons assigned, I respectfully dissent.

      . The record shows that plaintiff held a type “C” certificate in her field which was elementary education. This type “C” certificate was valid for three years. During that time plaintiff was also issued a temporary (type “T”) certificate for one year enabling her to teach kindergarten which was out of her field of certification.

      . Although the trial court’s conclusion that plaintiff successfully completed her three year probationary term is correct, its reasoning in reaching that conclusion — in particular its failure to follow the Piper case — is incorrect. This court favorably cited the Piper case in Coburn v. Vernon Parish School Board, 364 So.2d 231, 234 (La.App. 3rd Cir. 1978) which interpreted the word “year”, as used in the teacher’s tenure law providing that each teacher shall serve a probationary term of three years, to mean the calendar year of twelve months from the date of first appointment, and not a scholastic year. Using this correct interpretation it is clear that plaintiff, who was appointed September 17, 1970, and thereafter reappointed in September of 1971 and September of 1972, and who as of September 17, 1973, had not been fired, did under these facts, successfully serve a probationary period of three calendar years reckoning from her date of appointment, September 17, 1970.


author: CULPEPPER, Judge. LABORDE, Judge,

text:
    Roland VEAZEY and Dora Choate Veazey, Plaintiffs & Appellants, v. W. T. BURTON INDUSTRIES, INC., Defendant & Appellee.
    No. 8483.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.
    Writ Granted Feb. 19, 1982.
    Simon & Dauterive, J. Minos Simon, Lafayette, for plaintiffs & appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendant & appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CULPEPPER, Judge.

Plaintiffs are the alleged owners of a-tract of land in Vermilion Parish. Defendant is the alleged former owner of an oil, gas and mineral lease affecting that tract. Plaintiffs seek damages alleged to have been sustained by them as a result of defendant’s “negligent breach of contract.” The trial judge sustained defendant’s exception of no cause of action and dismissed plaintiffs’ suit.

The issue is whether plaintiffs’ petition alleges a cause of action for damages either for breach of contract or in tort. We conclude, as did the trial judge, that regardless of whether plaintiffs allege a breach of a contractual obligation or of a duty in tort, there is no cause of action because the allegations as to damages are too speculative.

At the outset, we recognize the rule that when a party has been damaged by the conduct of another arising out of a contractual relationship, he may have two remedies, one in tort and another in contract, and he may elect to recover under either. Federal Insurance Company v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972). Thus, if plaintiffs in the present case have stated a cause of action in either tort or contract, the exception of no cause of action must be overruled.

Of course, we also recognize the rule that when considering an exception of no cause of action, all well-pleaded facts must be accepted as true. Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (La.1961).

FACTS ALLEGED BY PLAINTIFFS

In their petition filed on July 10, 1979, plaintiffs allege they are owners of 105.5 acres in Vermilion Parish; that in 1964 they executed an oil, gas and mineral lease to Perry H. Coleman; that this lease was subsequently acquired by W. T. Burton Industries, Inc.; that in 1965 Burton drilled “Roland Veazey No. 1 Well” on the property; that Burton drilled the well to a depth of 18,000 feet and set casing to a depth of 13,429 feet; that during the drilling Burton discovered two high-pressured gas zones, one at 14,675 feet and the other at 14,800 feet, and that verification of these gas zones was made by Schlumberger Electrical Logs and by core or sidewall samples, which were analyzed by Core Laboratories, Inc. and determined to be gas productive; that rather than produce the gas aforesaid, Burton instead abandoned the well; that regulations of the State Department of Conservation require that all open reservoirs of gas or oil are to be plugged and isolated from other strata in order to avoid reservoir gas from escaping and becoming depleted by underground communication and mixture and furthermore to prevent the escape of high-pressure gas to the surface where life and property would be endangered; that Burton knowingly failed to plug off or isolate the two known gas reservoirs at 14,675 feet and 14,800 feet, in violation of the said regulations of the Department of Conservation; that Burton knowingly and falsely reported to the Department of Conservation and to your petitioners that the well was a “dry hole”; that because of the false report as a “dry hole”, petitioners’ property was branded as non-productive, causing petitioners to lose revenues that would otherwise have been derived from subsequent leasing; that in 1977 the Electric Log and Core reports aforesaid came to the attention of one William E. Bess, a former Schlumberger engineer and log analyst, who examined this data and conferred with one Clay Reichert, geologist for W. T. Burton Industries, Inc., and that Reichert confirmed the fact that the log and core data were genuine and that gas existed in productive quantities, and that notwithstanding such information Burton decided to abandon the well; that thereafter William E. Bess consulted with others who in turn approached plaintiffs proposing a new mineral lease for the purpose of reworking the well; that in 1977 plaintiffs executed an oil, gas and mineral lease to Painter Oil & Gas, Ltd. covering the property; that pursuant to this new lease, rework drilling operations were commenced on January 5, 1979 and by January 11, 1979 it was discovered that the valuable gas reservoirs discovered during the original drilling operation conducted by Burton had completely depleted and wasted as a result of Burton’s failure to plug and isolate the aforesaid gas reservoirs, and that said gas reservoirs were found to be completely beyond any recovery whatever; that but for the negligence of Burton in failing to plug and isolate the gas reservoirs aforesaid from other strata, petitioners would have been able to recover the gas and condensate located in these reservoirs; that plaintiffs were first informed in January of 1979 concerning the negligence of Burton as aforesaid; that the value of the recoverable gas and condensate in the reservoirs aforesaid is not less than 25 million dollars, and this gas and condensate could and would have been recovered but for the negligence and failures of Burton as aforesaid; that had not Burton falsely characterized the well as a “dry hole”, your petitioners would have been able to lease their land to others at not less than $100 an acre, and plaintiffs therefore suffered a loss of leasing rights of not less than $100,000.

TRIAL JUDGE’S REASONS FOR JUDGMENT

After a hearing on the exceptions, the trial judge concluded that the petition fails to state a cause of action. He cites Breaux v. Pan American Petroleum Company, 163 So.2d 406 (La.App. 3rd Cir. 1964), writ refused 246 La. 581, 165 So.2d 481 for the reason “No error of law.” In Breaux, the same lessee owned leases both on the plaintiffs’ land and on the adjoining land. The lessee drilled a producing well on the adjoining property. Plaintiffs sued for damages allegedly sustained as a result of their lessee’s breach of the implied obligation to protect them against drainage of oil and gas from beneath their land. The trial judge in the present case quotes from Breaux as follows:

“ ‘In order for a landowner-lessor to recover damages from his lessee because of a breach of the lessee’s implied obligation to exercise reasonable diligence in preventing drainage, we think the lessor must allege and present facts which establish that oil and gas could have been produced from the same reservoir by offset wells drilled on the leased premises, and that it would have been economically feasible for the lessee to drill such offset wells. He must also allege and prove with some degree of certainty the quantity of oil or gas which would have been produced from the offset wells, and the value of the minerals which the landowner would have received from that production had the offset wells been timely drilled and completed.’ (emphasis ours)”

Using this rationale from Breaux, the trial judge states in his written reasons:

“Plaintiffs, in the instant case, do not contend that it would have been economically feasible in 1966 to produce the well in question; plaintiffs have not pleaded with certainty the quantity of oil or gas which would have been produced, and they have not alleged the value of the minerals or royalties which the landowner would have received. The damages and losses complained of are entirely speculative and plaintiffs have failed to allege facts upon which damages can be measured.”

The trial judge also denied the plaintiffs’ claim for loss of leasing rights on the grounds that plaintiffs failed to allege that they could have leased the property, or the terms of such leases, and that they would have accepted the offers, citing Fite v. Miller, 192 La. 229, 187 So. 650 (1939).

PLAINTIFFS’ ARGUMENTS

Plaintiffs’ brief commences by stating that the district court erred in maintaining the exception of no cause of action by:

“Misreading plaintiffs’ cause of action as one sounding in breach of contract, instead of a tortuous breach of contract and in tort, and as implicitly seeking damages because the lessee failed to engage in ‘offset’ drilling, the district court maintained the exception of no cause of action based on Breaux v. Pan American Petroleum Company, 163 So.2d 406 (3rd Cir. 1964). Plaintiffs have appealed the decision of the district court, because that decision does not address the actual cause of action presented by their petition.”

In their brief plaintiffs begin their argument by stating the issue presented is res novo. They state their cause of action arises under the provisions of LSA-C.C. Article 2315 and under the provisions of the Mineral Code of Louisiana, in particular LSA-R.S. 31:122 which provides:

“A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.”

Also in support of their position, plaintiffs cite LSA-R.S. 31:14 which provides:

“The landowner has no right against another who causes drainage of liquid or gaseous minerals from beneath his property if the drainage results from drilling or mining operations on other lands. This does not affect his right to relief for negligent or intentional waste under articles 9 and 10 or against another who may be contractually obligated to protect his property from drainage.” (Emphasis supplied by plaintiffs)

Plaintiffs argue that under these statutory provisions the defendant had an obligation to protect plaintiffs’ property from drainage or escape of minerals alleged to exist thereunder. They point to the allegations in the petition that Burton found two gas reservoirs under plaintiffs’ property while drilling in 1966, and that instead of producing this gas Burton abandoned the well. Plaintiffs further point to the allegations that the Department of Conservation regulations require that all open reservoirs of gas or oil must be plugged and isolated from other strata in order to avoid reservoir gas from escaping and becoming depleted, and they allege that Burton knowingly failed to plug off or isolate the two known gas reservoirs in violation of these regulations of the Department of Conservation. Plaintiffs argue that defendant’s failure to comply with these regulations constituted a breach of defendant’s obligation to act as a reasonably prudent operator and permitted the waste or escape of valuable gas known to exist under plaintiffs’ property. They then point to the allegation that the recoverable gas and condensate which escaped from the well by reason of defendant’s failure to properly plug the well had a value of not less than 25 million dollars, which amount they seek as damages.

In their brief, plaintiffs emphasize the trial judge erred in stating as a reason for his judgment that plaintiffs “did not contend that it would have been economically feasible in 1966 to produce the well in question; plaintiffs have not pleaded with certainty the quantity of oil or gas which would have been produced, and they have not alleged the value of the minerals or royalties which the landowner would have received.” Plaintiffs say this is a misconception by the trial court as to their cause of action. They state their lawsuit is not based on defendant’s failure to produce the known gas under their property in 1966, but is instead based on defendant’s “failure to properly plug the Roland Veazey No. 1 Well and thus permit the waste or escape of such valuable gas.”

As to damages for loss of leasing rights, plaintiffs argue the defendant falsely reported to the Department of Conservation in 1966 that the well was a “dry hole”, thereby condemning the property for further leasing. They allege that they could have leased the property for not less than $100 per acre, and that their loss of leasing rights was not less than $100,000. We note at this point that $100 per acre on 105 acres would be $10,500, not $100,000. In support of their claim for this loss, plaintiffs cite Angelloz v. Humble Oil & Refining Company, 196 La. 604, 199 So. 656 (1940); Mount Forest Fur Farms of America v. Cockrell, 179 La. 795, 155 So. 228 (1934); and Layne Louisiana Co. v. Superior Oil Co., 209 La. 1014, 26 So.2d 20 (1946).

In a supplemental brief, plaintiffs emphasized their argument that Burton violated his duty under LSA-R.S. 31:122 to act as a reasonably prudent operator, by failing to plug off the two known gas reservoirs. As to the measure of damages, plaintiffs argue the allegation that oil and gas wrongfully wasted from their land had a value of 25 million dollars is sufficient.

DEFENDANT’S ARGUMENTS

Now turning to defendant’s arguments, its brief notes at the outset that plaintiffs begin their brief by stating the trial judge misread their petition as one sounding in breach of contract and did not consider whether their petition alleges a cause of action in tort. Defendant points out that the trial judge did consider whether the petition states a cause of action in tort. We find defendant is correct in this respect. It is our understanding of the trial judge’s written reasons that he found as a matter of law that plaintiffs’ petition does not state a cause of action either in contract or in tort because the allegations of damages are too speculative.

Defendant next states the issues on appeal are as follows:

“1. Is a petition for damages, based on a tort for alleged loss of gas, sufficient to state a cause of action where the petition fails to allege that:
(a) a reservoir of gas existed which was susceptible of production in 1965-66;
(b) it would have been economically feasible and/or prudent to produce such gas in 1965-66;
(c) the capacity of the reservoir or the quantity of gas allegedly ‘lost’;
(d) the quantity of gas which could have been produced;
(e) the value of the gas or the ‘royalties’ the plaintiffs would have received; and,
(f) a willful intent to injury plaintiffs?
2. Does a landowner have a cause of action for an alleged loss of fugacious minerals purportedly located beneath some portion of his property in 1966?”

In support of its argument that the allegations of damages are too speculative, defendant reviews the Louisiana jurisprudence. The first case cited is Louisiana Gas & Fuel Company v. White Bros., 157 La. 728, 103 So. 23 (1925), where a mineral lessee sued the mineral lessee of adjoining land for damages for the loss of gas under plaintiff’s lease caused by the negligence of defendant in drilling a well on the adjoining lease so that the well blew out and formed a crater. Plaintiff alleged that 10 million cubic feet of gas a day worth 2<p per 1,000 cubic feet escaped from under his lease over a period of two years. In sustaining an exception of no cause of action, our Supreme Court held:

“The defendant filed an exception of no cause of action, which was overruled by the court below and renewed in this court. This exception is well founded.
Even if plaintiff were owner of that proportion of the gas in the common reservoir, which the area of its holding bears to the total area of such common reservoir, nevertheless it is not alleged (and much less could it be proved) what the area of that common reservoir may be, and what part of it lies beneath plaintiff’s holdings. So that there would be no measure for any special damages which plaintiff might suffer. And as for general damages, plaintiff could recover none unless it showed that defendant had wasted (or drawn) out of the common reservoir more than its (defendant’s) just proportion of the gas in that common reservoir, which, of course, plaintiff could never show.”

In McCoy v. Arkansas Nutral Gas Company, 184 La. 101, 165 So. 632 (La.1936) landowners sued a lessee of neighboring lands for damages resulting from defendant’s negligence in permitting gas under plaintiff’s land to escape through a well and crater located on the neighboring lands. Plaintiff sought recovery under LSA-C.C. Article 2315. In disallowing such damages, the court held:

“A review of the cases on that subject-matter shows that damages were not allowed because of the uncertain and speculative nature of the loss complained of. One of the reasons which we assigned in this case when it was previously before us for sustaining the exceptions of no cause and no right of action was that “the loss complained of was, manifestly, more a matter of uncertainty and speculation than of fact or estimate.”

In Louisiana Gas Lands v. Burrow, 197 La. 275, 1 So.2d 518 (La.1941), the lessor sued the lessee for cancellation of the mineral lease and damages on the grounds that the lessee failed to produce gas in reasonable quantities from two wells on plaintiff’s property, and that the lessee had operated wells on adjoining lands so as to drain the gas from under plaintiff’s property. In sustaining an exception of no cause of action, the Supreme Court stated:

“The petition does not state any fact which could serve as a basis for its general charge that plaintiff’s lands have been subjected to prejudicial drainage, nor does the petition state any fact by which the extent of the drainage, if any, could be established. A fair reading of the many articles and numerous allegations contained in the petition discloses that the whole theory of plaintiff’s demand relates to the alleged failure of defendants to produce and market the full allowable amount of gas from its wells, or some unstated percentage thereof, and that this constituted a breach of defendant’s implied obligation to reasonably operate the wells to their mutual profit and to protect the leased premises against drainage.
Our conclusion is that the petition as written does not contain sufficient allegations of issuable fact to furnish a basis upon which any judgment may be rendered. It may be that plaintiff can set forth a cause of action for some character of relief by pleading the necessary facts, but in order to do this an entirely new suit will be required.”

Defendant also cites Aladdin Oil Company v. Rayburn Well Service, Inc., 202 So.2d 477 (La.App. 4th Cir. 1967), writs denied 251 La. 388, 204 So.2d 573 for the reason “No error of law.” In Aladdin the well operator sued a well service company for damages for loss of oil and gas in the underground reservoir lost at the time of a fire during reworking activities on the well. During the trial, an expert petroleum engineer testified for the plaintiff as to his estimate of the gas lost, based on electric logs for the wells in the area, core samples and production data from the wells, estimated volume of gas in the reservoir, porosity, percentage of water, shrinkage factors, etc. In finding this evidence insufficient to prove damages, the court held:

“This, however falls short of making the claim out to a sufficient legal certainty upon which to base an award, and the Courts of this state have never granted an award based on this type of calculation.”

Of course, defendant also cites Breaux v. Pan American Petroleum Corporation, supra, which is the most recent Louisiana case on the subject, and in which writs were denied by our Supreme Court for the reason “No error of law.” The above quoted portion of the opinion in Breaux follows the rationale of the line of cases discussed above that in a suit for damages for loss of oil and gas by drainage or by waste the allegations must show with some degree of certainty the quantity of oil and gas lost.

As to damages for loss of leasing rights, defendant argues the trial judge correctly held that under Fite v. Miller, supra, the allegations are too speculative. Defendant also cites Lebleu v. Vacuum Oil Company, 15 La.App. 639, 132 So. 233 (1st Cir. 1931) and Ferguson v. Britt, 191 La. 381, 185 So. 287 (La.1938) in which loss of leasing rights was denied because of speculative damages.

FUGACIOUS MINERALS ARGUMENT

The trial judge recognized the fundamental concept of LSA-R.S. 31:6 that oil and gas are fugacious minerals which are not subject to ownership until reduced to possession. However, the district judge did not base his decision on this concept. He preferred to rely on the rationale of Breaux, which followed the rationale of the long line of jurisprudence discussed above as to speculative damages for drainage or waste of oil or gas.

Of course, in the present case there is no allegation that any oil or gas was ever possessed by plaintiffs. It necessarily follows that none was ever owned by plaintiffs. They do not allege possession or ownership of any such minerals. Nevertheless, they seek damages for the loss of the oil and gas which escaped, apparently on the theory that they lost “the exclusive right to develop and explore” their property for the production of such minerals, as provided in LSA-R.S. 31.6.

Since we conclude under the settled jurisprudence discussed above that the allegations of damages are too speculative to support a cause of action for either breach of contract or in tort, we find it unnecessary to decide whether plaintiff’s petition must also fall because they never possessed or owned the oil or gas for loss of which they seek damages. We prefer instead, as did the trial judge, to base our decision on the established jurisprudence as to speculative damages.

CONCLUSION

We conclude the trial judge correctly decided this case under the rationale of Breaux. Although Breaux involved drainage and the present case allegedly involves waste, we think the rationale is the same. Insofar as allegations and proof of damages are concerned, it is immaterial whether the oil and gas are lost by drainage through the strata to other wells on other lands, or by waste through an unplugged well on plaintiffs’ land. The lessor must allege and prove that oil and gas could have been produced in 1966 from the reservoirs alleged to be under their land, and that it would have been economically feasible for the lessee to produce such oil and gas. Furthermore, the lessors must also allege and prove with some degree of certainty the quantity of oil or gas which would have been produced from the well and the value of the minerals which the landowners would have received from that production.

As to the alleged loss of leasing rights, we agree with the trial judge’s reasons stated above.

It is our view that under the present jurisprudence of this State, plaintiffs’ allegations of damages for loss of oil and gas are too speculative to support a cause of action, either for breach of contract or in tort.

We are aware of LSA-C.C.P. Article 934 which provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment shall order such amendment within a delay ordered by the court. However, in the present case plaintiffs have not asked for a remand and have not suggested whether or how the above stated objections to their petition could be removed by amendment.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

LABORDE, J., dissents and assigns reasons.

LABORDE, Judge,

dissenting.

I respectfully dissent from the majority’s dismissal of this suit upon an exception of no cause of action.

Accepting the allegations of the petition as true, as we are required to do for trial of such an exception, the plaintiffs have lost specified amounts of oil and gas due to defendant’s failure to properly plug their well when it was abandoned.

The majority opinion adequately sets forth the facts alleged by plaintiffs. What more could plaintiffs have alleged? The majority in its conclusion demand that plaintiffs allege and prove that gas and oil could have been produced in 1966 and that plaintiffs prove with some degree of certainty the quantity and value of the minerals which they allegedly lost. Yet, by their decision, plaintiffs are prevented from having a trial on the merits to prove their claim.

In addition to the majority’s error in holding that plaintiffs’ petition contained insufficient allegations, the majority, at the very least, should have remanded the suit to permit amendment, instead of dismissing it outright. By doing so plaintiffs would have an opportunity to allege those facts to properly litigate substantive rights instead of' being denied their day in court on the basis of subtle technicalities.

I respectfully dissent.


author: BOUTALL, Judge.

text:
    Mario San ROMAN v. Mike ZUPPARDO and Anna M. DiPietro.
    No. 12044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.

      Roy S. Lilley, Lea & Lilley, Metairie, for Mario San Roman, plaintiff-appellee.
    Emile A. Wagner, III, M. Taylor Darden, William W. Waring, Jr., Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, for Whitney Nat. Bank in New Orleans, defendant-appellant.
    Before SAMUEL, BOUTALL and KLIE-BERT, JJ.
   BOUTALL, Judge.

This is an appeal of a default judgment by one not a party to the suit. Mario San Roman sued Mike Zuppardo and Anna M. DiPietro seeking recovery for labor done and materials furnished on premises sought to be leased by San Roman, as well as damages. Judgment was rendered in his favor granting a lien and privilege under the Private Works Law and awarding damages. Whitney National Bank of New Orleans, claiming to be the owner of the property against which the lien attached, took an appeal from that portion of the judgment recognizing the lien.

To aid in understanding the background leading to the default judgment appealed from, we relate the following facts: On February 25, 1975, Mario San Roman entered into a lease agreement with Mike Zuppardo, who acted as an agent for Anna M. DiPietro, the owner of the premises. The lease provided that San Roman was to make certain improvements to the premises and the defendants agreed to make certain improvements in the premises to have them ready for occupancy on May 1, 1975. The defendants failed to make the improvements and San Roman was unable to use the premises. On October 27, 1975, an agreement was made between San Roman and Zuppardo that San Roman was to complete the improvements as enumerated in five particulars and that San Roman was to be paid for making those improvements by deducting $300.00 per month from the rental due. It was further proposed that a new lease be entered into, and other obligations be undertaken by both parties, but the parties apparently disagreed or for some unknown reason did not carry out their obligations, and the new lease was never signed, nor does the record disclose that any of the other obligations were undertaken.

As a result, San Roman was forced to file an “Affidavit of Materialman’s and Laborer’s Lien” in the Jefferson Parish Mortgage Office against the property owned by DiPietro. This affidavit was corrected by an act of correction executed on January 22, 1976, and recorded on January 23, 1976. San Roman then filed suit on January 7, 1977, claiming damages, cost of improvement to the premises and recognition of his lien against the property. Service was made upon DiPietro who failed to answer, and a judgment of preliminary default was confirmed on June 13, 1980, in the amount of $24,982.15 for labor and materials furnished and recognition of the materialman’s and laborer’s lien and privilege against the property of DiPietro. The judgment also provided for damages but that is not at issue here.

Whitney National Bank of New Orleans, claiming to be the purchaser of the property at a Sheriff’s Sale on April 9, 1980, held at a result of foreclosure proceedings in the case entitled “Whitney National Bank of New Orleans against Anna M. DiPietro,” No. 232,346, Twenty Fourth Judicial District Court, then entered these proceedings for the first time by filing a petition for appeal on August 21, 1980. In that petition, Whitney recited the facts of its ownership and that the judgment» recognized a privilege in the amount of $24,982.15 against that same property and, as a result of those facts alleged that it had an interest in the matter within the meaning of Article 1091 of the Louisiana Code of Civil Procedure and is thus entitled to appeal under C.C.P. Article 2086. The timeliness of this appeal has been previously decided by this court.

The first issues to be considered are two exceptions, one of no right of action and one of no cause of action filed by the appel-lee contesting Whitney’s right of appeal.

The first exception filed was the exception of no cause of action based upon the fact that in its petition for appeal Whitney had failed to state that it was “an aggrieved party.” Code of Civil Procedure Article 2086 simply provides that a person who could have intervened in the trial court may appeal, and Article 1091 defines which third person may intervene. The codal requirement is that the third party have an interest to enforce a right related to or connected with the object of the pending action. Clearly, an allegation that Whitney is the owner of the immovable property and that the judgment recognized a material-man and laborer’s lien against that property in the amount of nearly $25,000.00 discloses sufficient interest. Appellee refers us to the cases of Lesseigne v. Cedar Grove Realty Co., Inc., 150 La. 641, 91 So. 136 (La.1922) and Andrus v. Police Jury of the Parish of Lafayette, 266 So.2d 535 (La. App.3rd Cir. 1972) which he contends stand for the requirement that the petition for appeal contain the words “aggrieved party.” His interpretation is simply incorrect. The exception of no cause of action is overruled.

The second exception filed was the peremptory exception of no right of action because Whitney has “acquiesced to the judgment in that it did nothing to prevent the default from being entered.” The exception is frivolous. Whitney was not a party to the suit prior to its intervention by way of appeal. We have only to refer appellee to the Andrus case which he cites in support of "his exception of no cause of action for a discussion on acquiescence. The exception of no right of action is overruled.

We now turn to the merits of the appeal.

The basic issue is that there was a lessor-lessee relationship between the parties to the default judgment in existence during at least part of the renovations which are the subject of the suit. Appellant contends that the work was done by San Roman for his own purposes as a lessee of the premises, and that no lien and privilege can be lodged against the owner’s property. L.R.S. 9:4811 makes it plain that any privilege which arises out of work done by the lessee for his account shall operate only upon whatever right the lessee may have to use the land as lessee. Appellant further refers us to the cases of Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (La. 1962) and Holsomback v. Jett, 260 So.2d 24 (La.App.3rd Cir. 1972) as further support for the proposition that no privilege could be assessed upon the property of an owner.

We agree with the proposition that when the lessee does or causes to be done the work as lessee only, no privilege can extend to the land itself. We distinguish those cases from the facts in this case where the improvements were made for the account of the lessor. L.R.S. 9:4801 provides in general for a privilege for labor and materials against immovable property, and L.R.S. 9:4812 provides for the situation where no contract has been recorded. Section 4812 states in pertinent part: “When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection or reconstruction, for the account of the owner, * * * then any person furnishing service or material or performing any labor on the said building * * * may record * * * an affidavit of his claim * * * which recordation * * * shall create a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work or improvement, as his interest may appear.”

Although the agreement between the parties was originally a regular commercial lease in which certain improvements were to be made by the lessee for his account, when tenancy under that lease was impossible because of lack of performance by the lessor, the new agreement was entered into between the lessee and the agent for the owner which cancelled that lease and proposed a new lease be executed. That agreement specifically provided that the original lease was cancelled, and that San Roman was to do five specific projects of construction and reconstruction for which he was to be paid by the owner by deducting $300.00 per month from the rental due under the new proposed lease. That agreement makes it plain that the work was for the account of the owner and that the owner was to pay the price therefor. Any labor or materials furnished under that agreement would come under the lien and privilege established in L.R.S. 9:4812.

The next issue that arises is, of course, whether the amount sued for comes under the privilege. The judgment appealed was a default judgment and comes under the provisions of C.C.P.Art. 1702. The judgment must be confirmed by proof of the demand sufficient to establish a prima facie case. The evidence offered in proof was the testimony of San Roman and some documents, and we conclude that the evidence offered is insufficient to support the judgment appealed from. San Roman testified simply that he did make improvements, that the labor and materials that he put into the buildings are based upon receipts which he offered into evidence for a total of $24,892.15, that he had a lot more but didn’t have the receipts, and that he filed his lien accordingly. Despite the fact that his testimony does not specify that the receipts were for the labor and materials that he put into the building under the second agreement, it would appear from the sequence of his testimony that his testimony would so indicate, and although it is sketchy, nevertheless it could constitute a prima facie case. However, in viewing those receipts, we note that there are no receipts or other statements which would support the claim of labor furnished by him in the amount of $8,100.23. There is only a document marked “Exhibit A” amongst the receipts which simply lists all of the receipts for labor and materials furnished by others, together with the amount of each one and at the bottom thereof is simply included “M. San Roman 8100.23” which when added to the other receipts makes a total of $24,-892.15. We cannot conclude that this simple listing on the total, when considered with the statement of the witness mentioned above is sufficient proof of the demand for that amount.

The jurisprudence construing C.C.P. Article 1702 holds that in confirming a default the plaintiff must prove all of the essential allegations of his petition as fully as if they had been specifically denied. See Carboline Co. v. Hymel, 335 So.2d 45 (La.App.4th Cir. 1976); Holland v. Aetna Life and Casualty Insurance Company, 385 So.2d 316 (La. App.1st Cir. 1980); Jones v. Ledet, 383 So.2d 1308 (La.App.3rd Cir. 1980). A consideration of the evidence in this case demonstrates that this plaintiff has failed to carry that burden and his evidence is insufficient to prove all of his claim under the lien and privilege. Accordingly, we set aside that portion of the judgment appealed, and we remand the matter to the trial court in order to permit further proof of plaintiff’s right to a privilege upon the immovable property, or such other proceedings as may be appropriate herein.

That portion of the judgment which decrees as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein recognizing the privilege on the property known as Lots D and C in Square 42 Shrewsbury Subdivision bearing municipal number 3508 21st Street Metairie, Louisiana as described in Mate-rialman’s and Laborer’s Lien as recorded in MOB 669 folio 638 and Act of Correction Entry Number 706022 recorded January 23, 1976, of the Jefferson Parish, Louisiana records in the amount of TWENTY FOUR THOUSAND EIGHT HUNDRED NINETY TWO AND 15/100 ($24,982.15) DOLLARS, with legal interest thereon from date of judicial demand until paid.”

is set aside and this matter is remanded to the trial court for further proceedings in accordance with the views expressed herein. Costs of this appeal to await a final determination of assessment of costs by the trial court.

SET ASIDE AND REMANDED.

       The amount written out is correct.


author: CHEHARDY, Judge.

text:
    Laverne Roberts GRAFF v. Charles E. GRAFF.
    No. 12114.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Thomas M. Willmott, Metairie, for plaintiff-appellee.
    Corey, Reed, Bethay & Kogos, Corwin B. Reed and Edward J. Lassus, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Charles E. Graff, appeals a district court decision in favor of plaintiff, Laverne Roberts Graff, and against the defendant decreeing that he pay permanent alimony to Mrs. Graff in an amount of $550 per month, payable $126.92 per week, said payments to be maintained as previously set forth by the trial court in this matter.

The judgment also decreed a divorce “a vinculo matrimonii” between the parties in favor of Charles Graff and against Laverne Graff and further noted that Mrs. Graff was found free of fault and Mr. Graff was found to be at fault in those proceedings.

Mrs. Graff has also answered the appeal averring that the award of alimony given to her is proper but asking alternatively that the alimony award be increased.

In giving his reasons for judgment from the bench, the trial court judge stated:

“The Court is called upon to * * * First of all the Court is going to grant a divorce in favor of the husband finding that the parties have lived [apart] and have not reconciled since May 11, 1979. The Court has previously determined fault issue in this matter, finding the husband at fault * * * The Court previously fixed in this matter $550.00 for alimony pendente lite. Accordance with Article 160 and the jurisprudence thereunder, the Court is of the opinion that it must fix permanent alimony to cover shelter, clothing, food, medical, transportation, utilities, telephone and tax liability for the wife. On the other hand the Court must also take into consideration the employment of the wife, or her ability to obtain employment, her age and the wife’s medical problems. The Court finds as a matter of fact that the wife is 51 and does have medical problems which she testified to. Considering the items which she has listed in her list, she lists housing at $290.00 which states if she pays it by the 1st, by the 5th of the month that sum is $265.00. I find that $265.00 is the amount for housing. The other items that she listed are $200.00 for food, $100.00 for clothing, $100.00 for transportation which is the gas and the upkeep of the vehicle, she pays $50.00 a month toward the medical bills, $25.00 a month toward drugs and $100.00 for utilities. That gives the wife a total payment each month of $820.00 * * * $840.00 a month. The Court has not taken into consideration miscellaneous, personal grooming and another type of expenses. * * * [T]he wife has expenses of at least $840.00 to those matters that the Court must take into consideration * * * under Article 160. I also find that the wife has the ability to work at least part-time because of her medical problems. She testified that she can work three and a half hours a day which is the equivalent of seventeen and a half hours a week based on a five day work week. And she can earn $3.25 an hour. That comes to $56.87 or a total of $244.56 per month * * I rounded that off at $245.00. Subtracting $840.00 minus $245.00, the Court comes up with the sum of $595.00. The Court has previously fixed the sum of $550.00 as alimony in this matter and I’m going to leave it at that. So the Court is going to fix the permanent alimony at $550.00.”

The defendant argues on appeal that the trial court should have taken into consideration the plaintiff’s full-time rather than her part-time working capacity as well as the fact that she had acquired $7,000 in cash assets as a result of the sale of her home. He also argues that due to these factors, as well as his financial obligations to his four children from a previous marriage, the amount of alimony awarded was an abuse of discretion and should be reduced to $267.67 per month.

LSA-C.C. art. 160 states:

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

It was stipulated at the trial on the merits that the defendant’s gross income is $1,880 per month and by affidavit he listed his total net monthly income, after deductions, as $1,312.48. He also testified he pays rent in the amount of $285 a month and the remainder of his monthly expenses are as follows: automobile, $190; educational expenses for his children, $400; payments for car and Master Charge, $157; and miscellaneous expenses, $135 per month. Other expenses listed on his affidavit were: $300, household supplies and food; clothing, $40; utilities, $60; laundry and cleaning, $24; and personal and grooming necessities, $16. Total monthly expenses shown, therefore, were approximately $1,307.

Plaintiff, on the other hand, listed her only income as $550 per month in alimony previously awarded. She testified that her rent was $265 per month if paid before the fifth of the month. By affidavit she listed her other monthly expenses as $200 for food and household supplies; clothing, $100; transportation, $100; medical and dental expenses, $50; drugs and medicines, $25; utilities, $100; laundry and cleaning, $25; personal and grooming necessities, $25; fixed obligations, $100; and miscellaneous expenses, $105.

The plaintiff testified that although she had training as a secretary and had held a number of jobs in that and other capacities over the years, that she was now seeking only a part-time job due to her inability to stand pressure. She explained her physical problems, which include a cyst in her breast, a hernia and past surgery for tuberculosis also preclude her working on a full-time basis. Also part of the record is a letter from the plaintiff’s pastor stating that in the months of February through June prior to the trial she had worked for the church as a secretary at the rate of $3.25 per hour during the hours of 9 a. m. to 12 noon on the days she was needed. He added she was sick quite a bit during that time and that her total pay for the entire period of employment was $897.81.

This court can find no error in the district court’s determination that the plaintiff had expenses of $840 a month, nor can we find error, based on the record, that she is able to work at least three and a half hours a day in order to earn a total of approximately $245 per month. This court finds, however, that the plaintiff’s inability to work more than three and a half hours a day was not successfully established by her at the trial court level. Although she stated she was under the care of a physician, she did not subpoena him to testify in regard to her physical condition and she admitted she has never even discussed her inability to work with him. Although the plaintiff testified she had surgery for tuberculosis in 1959, she admitted that since that time she worked as a secretary, as manager of an apartment complex and even sold cosmetics. She also stated that in 1973 she had a job paying $500 a month and at the time her husband left her she was earning $160 per week managing an apartment complex.

Mr. Graff «testified his expenses include the support of his three minor children of a prior marriage of whom he has legal custody; he added that he receives no assistance in their support from the children’s mother. He stated two of the children were at a boarding school and that he, until recently, had been unable to pay the school at all for their educational expenses.

The court is aware that the trial court has great discretion in fixing amounts of alimony, and its award should not be disturbed on appeal in absence of a clear showing of abuse of discretion. Labeuve v. Labeuve, 352 So.2d 749 (La.App. 3d Cir. 1977). This court also notes that much discretion is vested in the trial court judge, particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. Therefore, the factual findings of the trial court are to be accorded very substantial weight on review. Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir. 1980). LSA-C.C. art. 160, however, dictates that in determining the amount of alimony after divorce the court must consider, among other things, the earning capacity of the parties as well as their obligations to support or care for dependent children.

Considering all of the evidence and testimony and for the reasons assigned herein, we amend the district court judgment and it is hereby ordered, adjudged and decreed that the defendant, Charles E. Graff, pay permanent alimony to the plaintiff, Laverne Roberts Graff, in the amount of $300 per month, payable $75 per week, said payments to be maintained as previously set forth by the district court. In all other respects the judgment of the trial court is affirmed, each party to pay his own cost.

AMENDED AND AFFIRMED.


text:
    Ruth Mills Loudenback, wife of Elmer S. E. LOUDENBACK v. Elmer S. E. LOUDENBACK.
    No. 12254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Calvin J. Laiche, Westwego, for plain tiff-appellee.
    Wiley J. Beavers, Metairie, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Elmer S.E. Loudenback, through his provisional curator, appeals a district court judgment in favor of plaintiff, Ruth Mills Loudenback, wife of Elmer S.E. Loudenback, and against the defendant, decreeing an absolute divorce a vinculo matri-monii between plaintiff and defendant, granting plaintiff custody of the couple’s four minor children and ordering the defendant to continue paying child support on their behalf.

The defendant argues on appeal that divorce should not have been granted to the plaintiff under LSA-R.S. 9:301, because defendant had been declared incompetent well before the filing of the separation petition.

The record reveals that on March 8, 1978 plaintiff filed a petition seeking a separation a mensa et thoro between herself and the defendant, alleging acts of cruelty perpetrated by the defendant upon herself and her children. On February 13, 1980, plaintiff amended her petition seeking, in the alternative, an absolute divorce under the provisions of LSA-R.S. 9:301.

At the trial on the merits of the case counsel for the defendant testified that Mr. Loudenback was arrested in December of 1977 and charged with aggravated rape. He also stated that in February of 1978 the defendant was found incapable of understanding the nature of the proceedings against him and was committed to East Louisiana State Hospital where he has resided since that time. He added Mr. Loud-enback has never been free since the time of his December 1977 arrest.

Mrs. Loudenback testified she has not lived with her husband since the time of his arrest and has only seen him through court proceedings. On cross-examination she admitted in letters her husband has said he wants to live with her. She also said that although since 1978 it would have been physically impossible to live with her husband, she told the court she will never live with him.

LSA-R.S. 9:301 states: “When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue for and obtain a judgment of absolute divorce.”

In the case of Wadsworth v. Wadsworth, 328 So.2d 719 (La. App. 4th Cir. 1976), however, cited by the defendant, the court did state at 721:

“At the outset it must be noted that in none of the affidavits or pleadings is there an assertion that as of the time Mr. and Mrs. Wadsworth first separated she was insane. They speak only of mental problems prior to the judgment of separation and mental incompetency at the time of trial. Unless Mrs. Wadsworth was insane or incompetent when the separation occurred in February, 1970, the separation was voluntary and Mr. Wadsworth was entitled to a judgment even if she became insane or incompetent subsequent to their separation. Clark v. Clark, 215 La. 835, 41 So.2d 734 (1949).”

In Wadsworth, however, appellants sought to annul a judgment of separation granted previously in favor of Mr. Wads-worth. When dealing with a separation proceeding, therefore, the provisions of LSA-C.C. art. 138(9) and (10) are controlling. These portions of the article specifically state they apply when the husband and wife have voluntarily lived separate and apart.

The provisions of LSA-R.S. 9:301, however, as noted above, do not mention the word “voluntarily” at all. This distinction between the two articles was aptly noted in the case of Sciortino v. Sciortino, 188 So.2d 224 (La. App. 4th Cir. 1966), where the court said, discussing LSA-C.C. 138(9), at 230:

“The inclusion of the word ‘voluntarily’ which does not appear in LSA-R.S. 9:301, or any of its predecessor statutes providing for divorce after living separate and apart for a specified time is materially significant.
“It is our opinion that it requires a mutual acquiescence in the living apart during the time required. It must be a mutually voluntary act, and it is not enough that it be voluntary only as to one of the parties. We are unable to find any case from the appellate courts of this State interpreting the meaning and significance of the word ‘voluntarily’ as used in Article 138(9), but we do find support for our opinion in Pascal, Legislation Affecting the Civil Code and Related Subjects, 17 La.L.Rev. 22 (1956), wherein he said:
'* * * The important words in the statement of the new cause for separation are “when the husband and wife have voluntarily lived separate and apart.” (Emphasis added). Grammatically and lexicographically this legislation requires that the separate living be mutually voluntary. R.S. 9:301 does not have the word “voluntarily” in its text and the judicial interpretation has been that the separate living must be the result of a voluntary or intentional act on the part of at least one of the parties, but not necessarily of both, to terminate the conjugal life. [Citing Otis v. Bahan, [209 La. 1082, 26 So.2d 146] supra, and Leveque v. Borns, [174 La. 919, 142 So. 126] supra.] Thus the living separate and apart required by the new legislation, if construed according to the normal meaning of words in the English language, is more limited than that required by R.S. 9:301 as interpreted.’ ”

The court also followed that rationale in the case of Miller v. Miller, 378 So.2d 1040 (La. App. 2d Cir. 1979), and stated there is no requirement under LSA-R.S. 9:301 that the separation be voluntary on the part of both husband and wife, but that it is sufficient it be voluntary with respect to only one of the parties.

Clearly from the testimony of Mrs. Loud-enback at the trial on the merits her separation from her husband is completely voluntary on her part. Therefore, for this and the other reasons assigned the district court judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Glen ORAZIO v. Harold DUREL, Safeco Insurance Company, and The City of New Orleans.
    No. 12145.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1981.
    Tooley & Waldmann, Lester J. Wald-mann, Gretna, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon, New Orleans, for third party plaintiff-defendants-appellees.
    John P. Nelson, Jr., Sp. Trial Counsel, New Orleans, for third party defendants-appellees.
    Yada T. Magee, Asst. City Atty., New Orleans, for third party defendants-appel-lees.

      Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

The plaintiff, Glen Orazio, was injured while driving his motorcycle through a major intersection when the traffic signals were not functioning. He sues the City of New Orleans urging strict liability, and Harold Durel, operator of an automobile which attempted to enter the intersection. In brief reasons for judgment the trial judge found Orazio at fault and dismissed his lawsuit. On appeal plaintiff argues: under Civil Code Art. 2317 contributory negligence is not a defense to the City’s strict liability for damage occasioned by a defective thing (the traffic signals); the lower court failed to rule on the negligence of the Durel vehicle; and the lower court erred in finding him contributorily negligent as to Durel. We agree with the lower court’s conclusion that plaintiff’s fault was the cause of his damages and affirm.

It is undisputed- that the traffic lights were not working at the intersection of City Park Avenue and Canal Street at the time of this accident. The plaintiff, Orazio, knew the lights weren’t functioning as he proceeded on City Park Avenue toward Canal Street. Orazio testified he was crossing the intersection at 5 m.p.h. and had traveled approximately 100 feet when the Durel automobile entered his lane of travel by turning left off City Park Avenue. Knowing an accident was imminent, Orazio “laid down” his motorcycle causing him to slide into the right front of Durel’s car. Durel testified he stopped at the intersection, moved forward less than two feet, and did not see Orazio until the motorcycle was 20 feet from his car whereupon he applied his brakes. Two passengers in Durel’s automobile testified their vehicle stopped at the intersection, moved forward slightly and stopped again a moment prior to impact.

Plaintiff argues that the accident was caused by the inoperative traffic lights and the City is strictly liable for damages caused by things in its custody under LSA-C.C. Art. 2317 . We agree that traffic signals fall into this category under Jones v. City of Baton Rouge, 388 So.2d 737 (La. 1980) and the plaintiff need only prove the traffic signals were defective, occasioned an unreasonable risk of injury to others, and that his injury was caused by the defect. Jones, supra, at p. 739, citing Loescher v. Parr, 324 So.2d 441 (La.1976). The defenses to strict liability are the fault of the victim, fault of a third person, or by an irresistible force. Jones, supra, p. 740. Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5th Cir. 1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981), Richards v. Marlow, 347 So.2d 281 (La.App. 2nd Cir.) cert. denied 350 So.2d 676 (La.1977).

The trial judge found fault of the victim (Orazio) in exonerating the City from its strict liability and we do not find manifest error in that conclusion. Orazio voluntarily entered this intersection and testified he was aware that the traffic signals were not functioning. We could also conclude, though it is unnecessary, that fault of a third person (Durel) exculpated the City’s obligation importing strict liability. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979). Assuming arguendo that the traffic lights were defective, we are satisfied that Orazio’s fault was independent and the superseding cause of his damages which are not imputable to the defendant City of New Orleans. Rodrigue, supra. The plaintiff acted with full knowledge and appreciation of the risk he voluntarily assumed and which caused his exposure to the resulting danger. Orazio’s damages have no causal connection to the City’s fault and he should not be allowed to recover against the City under strict liability. See Loescher v. Parr, supra.

Plaintiff urges application of LSA-R.S. 32:122 which requires a left turning vehicle (Durel) to yield right of way at an intersection. However, this standard of care is inapplicable when semaphores are not operating properly. “[T]he duty of an approaching motorist is then to exercise extreme caution at such an intersection and not to proceed therein until he has ascertained that he can negotiate the intersection with safety.” Soprano v. State Farm Automobile Ins. Co., 246 La. 524, 165 So.2d 308 (1964) at p. 311.

The question of Orazio’s negligence was strictly a judgment call by the trier of fact. Durel admitted entering the intersection approximately two feet and immediately stopped upon seeing the plaintiff. Plaintiff’s speed prior to impact was suspect. The trial judge had a firsthand opportunity to observe the witnesses and evaluate their testimony before concluding that the plaintiff’s fault should bar his recovery. We find no manifest error in that determination. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The District Court judgment is affirmed with plaintiff assessed costs of this appeal.

AFFIRMED.

      . LSA-C.C. Art. 2317. Acts of others and of things in custody.
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.
      ******

      . Judge Tate presents an excellent review of available defenses to Art. 2317 strict liability.