author: BOUTALL, Judge. REDMANN, Judge,

text:
    Mrs. Joan Douglass, wife of Henry STEADMAN, Jr. v. Henry STEADMAN, Jr.
    No. 9958.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1979.
    Rehearing Denied Feb. 20, 1980.

      Dobin Friedman, New Orleans, for Mrs. Joan M. Douglass Divorced Wife of Henry Steadman, Jr. now Wife, of George Slado-vich, III, plaintiff-appellant.
    Roccaforte & Rousselle, Leo W. Rousselle, Frank W. Roccaforte, New Orleans, for Henry Steadman, Jr., defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This appeal is concerned with child support and visitation, and with various claims arising out of a partition by licitation of the community property. The matter arose as a result of several rules filed by Mrs. Joan M. Douglass, former wife of Henry Stead-man, Jr. and now wife of George Sladovich, III, and by her former husband Henry Steadman, Jr., ancillary to divorce proceedings between them. Mrs. Sladovich has appealed portions of the judgment, and Mr. Steadman has answered the appeal assigning as error other portions of the judgment.

In previous proceedings, a judgment of divorce was decreed between the parties, and Mr. Steadman was awarded custody of their minor son, with Mrs. Sladovich being awarded custody of their minor daughter, fixing child support at the sum of $85.00 per*month. At issue here is the validity of the judgment awarding Mrs. Sladovich the sum of $3,060 as arrearage in child support, suspending support payments at present, and suspending visitation rights of Mr. Steadman.

As to the back alimony, the trial judge limited the liability of Mr. Steadman to the three year prescription of Civil Code Article 3538 and awarded the sum of $3,060, representing 36 monthly past due payments at the rate of $85.00 each. The record contains an admission by Mr. Steadman that he had not paid any of these payments, and Mrs. Sladovich now tells us that she does not quarrel with the amount awarded. She does, however, insist that the payment of this amount is treated improperly in the judgment, and we will discuss that hereinafter.

In connection with the suspension of child support, we note that the ex-husband has had custody of the minor son for a number of years, and that the ex-wife has custody of the 14 year old daughter. The evidence reveals that the expenses of support of the daughter are in excess of $85.00 per month, but it also shows that the ex-husband supports the minor son without aid from the ex-wife. The income of Mrs. Sla-dovich is $1,000 per month and her husband has a base income of $15,000 per year. The income of Mr. Steadman is not easily determined because of the nature of his testimony, nevertheless it appears to be something in excess of $9,000 a year.' Under these circumstances, the trial court is justified in concluding that the prior awarded support payments should be suspended unless some change in circumstance should result.

Mr. Steadman complains of suspension of visitation rights, which had previously been set as 1 afternoon every 2 weeks to permit him to take his daughter to dinner. The evidence reveals that a very bitter struggle has occurred between the parties over every aspect of their separation and divorce. Although Mrs. Sladovich says that if her daughter wished to, she could visit her father, nevertheless she refers to threats upon her and unwarranted inquisition into her personal affairs. She has never visited her son since the trial of award of custody, nor has Mr. Steadman visited his daughter. The trial judge has had these parties before him in one proceeding or another for some seven years, and it is apparent from references made in the trial that he is much more familiar with the conditions that exist between these litigants and their children than we are. It is apparent he felt that the best interest of the child would be to suspend visitation by the father, and we see no reason to interfere with the discretion that he has.

We now pass to a consideration of the partition matters.

After apparently long negotiations between the parties failed, a judgment of partition by licitation was rendered. The community property was inventoried and placed at public auction. Before us now are issues as to the ownership of an amount deposited in the registry of court by the notary public who sought to effect the partition between them as well as claims by the parties arising out of a number of items of the community property. While we agree in essence with the decision of the trial judge in relation to these various claims, somehow confusion arose as to the nature of the amount deposited in the registry of court. We conclude from the evidence presented that the amount on deposit in the registry of the court represents the proceeds from the sale which are due to Mrs. Sladovich alone, subject to certain claims of Mr. Steadman.

An inventory of the community property had been taken by George C. Stringer, Notary Public on February 28, 1973. Subsequently a judgment ordering a partition by licitation was signed on June 5, 1975, appointing Salvadore Pappalardo as auctioneer to sell the property at public auction. The public auction was conducted on December 13, 1976 and the community real estate was sold to Mr. Steadman for a bid of $60,000 and the movable furniture therein was also sold to him for $3,725.00. A 1970 Ford Torino automobile was sold to a third person for $120.00. The parties were then referred to the same notary public for execution of the act confirming the public auction and settlement of the proceeds. After deduction of the expenses of the sale and partition there was deposited in the registry of court by the notary public the sum of $21,355.60, which represented one half of the balance of the proceeds. It is clear that that amount is the ex-wife’s share alone from the sale. The ex-husband, as purchaser, had never actually produced the total cash amount of the sale, and his one-half share in the community property was used by him as being applied to the adjudication price. Accordingly, the balance in the registry of court should be awarded solely to Mrs. Sladovich, subject only to the credit now to be stated.

That credit arises out of the maintenance of the family home by Mr. Steadman. After the separation, Mr. Steadman maintained the family home and expended the sum of $10,465.30 for payments on the outstanding mortgage, insurance premiums made necessary by the mortgage and eradication of termites. This amount is a community debt due to Mr. Steadman. He of course is responsible for one-half of it and his ex-wife is responsible for one-half, the sum of $5,232.65. Mr. Steadman has in effect received his one-half reimbursement as a result of his utilization of credit towards the auction price. Thus he is entitled to be reimbursed only the wife’s half, that is $5,232.65, out of the fund on deposit.

At this point we take notice that some confusion exists between the parties as to whether the award of back child support in the amount of $3,060 was also to be paid out of the fund in registry of court. As we interpret the judgment together with the reasons for judgment, it is apparent that the judgment intended to and does, simply award Mrs. Sladovich the sum of $3,060 and made that judgment executory without any stipulation that it should be paid from the amount on deposit. The judgment for arrearage, when made execu-tory, may be considered like any other money judgment for its execution. That sum is owed by Mr. Steadman to Mrs. Sladovich, and he is not entitled to any credit for it against the community assets.

The next assignment of error is the claim of Mr. Steadman against Mrs. Slado-vich relative to the Ford Torino automobile. He contends that she had the use of that vehicle during the pendency of the litigation, and that he is entitled to payment either for the value of that use or for the value of the automobile at the time of the separation. The trial judge found that the use of the vehicle by Mrs. Sladovich as a co-owner balanced the use of the family home by Mr. Steadman without reimbursement. Noting that ordinarily a co-owner may use the object of the ownership without reimbursement to other co-owners, we agree. As to the value, the evidence does not show any abnormal use or destruction of the vehicle, and the amount due the community, is what the vehicle brought at the auction.

There remain several smaller claims. One is Mr. Steadman’s claim for the value of a dog owned by them and inventoried as a community asset. The evidence shows that the dog became vicious and had to be destroyed before the auction. That claim is denied. Similarly, there was a claim for failure of Mrs. Sladovich to produce for sale four silver trays. The evidence does not show that Mrs. Sladovich had possession of those trays. Similarly, a claim for non-production of a silver service of 8 place settings by Mrs. Sladovich must be denied. She testified that she only took four place-settings and turned them over to the auctioneer, who upon instructions from Mr. Stead-man did not sell them because it was only a partial set. Mr. Steadman still has those place settings. There is simply no proof that Mrs. Steadman took more than four of those place settings and she returned four.

Accordingly, we affirm the following parts of the judgment: Judgment in favor of Mrs. Joan M. Douglass Sladovich for $3,060 as arrearage in child support which is made executory; judgment suspending the support payments to Mrs. Sladovich for the minor child Merrie Carol Steadman; judgment suspending the visitation rights of Mr. Steadman;' judgment dismissing Mr. Stead-man’s claims for one-half of the value of the family dog, various silver trays and silver service, and his claim for reimbursement of alimony pendente lite.

We reverse that portion of the judgment decreeing that the money in the registry of court shall be divided between the parties, and we now render judgment as follows:

Mrs. Joan M. Douglass Sladovich is decreed to be entitled to the proceeds of the judicial sale deposited in the registry of the court subject only to the award to Henry Steadman, Jr. of the sum of $5,232.65, being one half of the expenses incurred by him in maintaining the matrimonial domicile, and the Clerk of Court is now ordered to pay on the party’s demand, the sum of $5,232.65 to Henry Steadman, Jr., and the balance of said deposit to Joan Douglass Sladovich.

All costs of the proceedings in both courts are assessed to Henry Steadman, Jr.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part

I concur in the partial reversal of the judgment appealed from to the extent that it recognizes that the funds on deposit (save $120) are the ex-wife’s half of the proceeds of community property bought by the ex-husband.

I would further reverse the judgment by denying to the ex-husband recovery for the maintenance, insurance, taxes and interest portion of the 66 mortgage payments on the community house that he paid while he lived in the house alter termination of the community.

I

Charging the ex-wife half of the expenses of mortgage interest, taxes, insurance and maintenance of the community’s house is not unfair when the husband collects rent for the house and the ex-wife gets half of the rent, as in Butler v. Butler, La.App. 1 Cir. 1969, 228 So.2d 339. And charging the ex-husband half is also not unfair when the ex-wife uses the house and is awarded alimony the amount of which is based in part on the assumption that she is using the house, as in Arcemont v. Arcemont, La.App. 4 Cir. 1964, 162 So.2d 813: if the wife were not using the community’s house she would have to pay rent elsewhere and the amount of the alimony (and child support) would have to be higher, and thus the husband is already getting “credit” for the wife’s use of the commonly-owned house. But the wife gets no such “credit” here because she is not paying the husband alimony at all, and would not have to pay him more alimony if he rented a house elsewhere.

It is unfair to charge this ex-wife with half of the expenses of interest, taxes, insurance and maintenance of the formerly community house. Those expenses are a cost of using the house, Hurta v. Hurta, La.App. 4 Cir. 1970, 260 So.2d 324, and, as the Hurta community which used one spouse’s separate house owed those expenses to that spouse’s separate estate, by similar reasoning here the spouse who uses the once-community house after termination of the community should not be able to recover from the non-using spouse that spouse’s half of those expenses (unless by an alimony decree the court has impliedly ordered the non-using spouse to give the use of the house to the other spouse).

II

If, however, I err on that point and the ex-husband is entitled to recover those expenses, then the ex-wife’s claim for child support over three years past due should not simply be treated as prescribed. Under the long-recognized rule of quae temporalia, C.C.P. 424, the claim for prescribed child support is at least a shield against (if not a direct compensation of) the ex-husband’s claim for mortgage payments.

III

Furthermore, if the ex-husband is entitled to those expenses without set-off of the prescribed child support, there should be an accounting to the wife for her half of about $7,000 of community funds spent by the husband in paying mortgage principal and interest and taxes on the husband’s separate estate’s house, bought before the marriage. (The $7,000 may have been partly offset by rent equivalent, but the husband’s own pleadings show that the principal of that separate debt was reduced by $4,500 over 15 years of which ten were during the marriage.) Why should the ex-wife have to pay the ex-husband his claim yet he not have to pay her claim?

IV

The ex-husband should not be able both to obtain immediate enjoyment of his half of the property (by buying the house at the auction but paying only half the price) and to deny to the ex-wife enjoyment of her half of the proceeds. Some fairer rule should be devised by the Legislature or the courts.

V

The present proceeding is not a partition of the community. It is only a piece of a partition. The trial court judgment describes it as “a rule to decide claims of the respective parties to the proceeds of the community on deposit in the registry of the court.” Evidently the parties have elected not to have a partition according to Code rules. Presumably they are free to pursue other claims by as much piecemeal litigation as they please. The ex-husband is therefore correct in arguing that the question of whether he is entitled to credit for alimony pendente lite should not have been decided here because he did not present that claim in this case (although it may be conceded that the husband is not ordinarily entitled to credit against the wife’s half of the community capital). His entitlement to credit is ordinarily limited to the one half of the formerly community property’s income which belongs to the wife. If an accounting for income is later sought, the ex-husband’s right to credit for alimony should be there decided.

      . This is apparently in conflict with Connell v. Connell, 316 So.2d 421 (La.App.2d Cir. 1975) which we decline to follow.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Robert D. ANDERSON v. Alma Ida Geer, wife of Robert D. ANDERSON.
    No. 10539.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1979.
    Rehearing Denied Feb. 20, 1980.
    Margaret M. Gonzalez, Carolyn N. Hazard, New Orleans, for defendant-appellee.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    Before SAMUEL, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

Plaintiff, Robert D. Anderson has sued his wife, Alma Geer Anderson, for a separation from bed and board on account of her habitual intemperance. Defendant reconvened for a judgment of separation from bed and board based on abandonment by plaintiff. From a judgment in favor of defendant, granting her a judgment of separation and dismissing plaintiff’s petition, he has appealed. The issues are whether the facts entitle plaintiff to a separation against his wife as a matter of law, and if not, is he necessarily vulnerable to a judgment in favor of his wife under the law and the facts of the case.

In dismissing plaintiff’s suit for separation the trial judge stated that “Mrs. Anderson’s habitual intemperance is excused by her combined (and probably related) illnesses of alcoholism and schizophrenia. All of the expert testimony, and the two hospital records, compel this conclusion.” The record supports this finding. Early in March, 1973, defendant saw Dr. Richard M. Dawes, a psychiatrist, for treatment. Her condition prompted Dr. Dawes to admit her to De Paul Hospital on March 4, 1973. Shortly after her admission a psychological consultation revealed latent type schizophrenia with paranoid features. After she showed a low response to psychotherapy and medication she was given eleven electroconvulsive or shock treatments which resulted in an improvement of her depressive symptoms. She was discharged on May 1, 1973, and was continued on psychotherapy and medications under the care of Dr. Dawes. On August 14 he diagnosed her condition to be psychotic depressive reaction and possible schizophrenia. Although there was evidence that defendant drank considerably prior to her hospitalization, plaintiff’s testimony does not suggest that it was a real problem at that time. Similarly, following this hospitalization defendant was drinking considerably but it was apparently not to the extent that made plaintiff’s living with defendant insupportable. Things continued to be relatively normal in the family until January, 1974, when defendant made a suicide “gesture” which precipitated a second hospitalization of approximately one month’s duration. At this time plaintiff became deeply involved in a program of psychotherapy for defendant in cooperation with Dr. Dawes and following his recommendation plaintiff began to live more, closely with defendant and to spend all of his time with her. This continued until the summer of 1974, when he found that this course of conduct was conflicting with his duties to his children and to his job, so that he withdrew somewhat from this closeness to defendant, whereupon she appeared to feel rejected, became withdrawn and began to drink continuously. Over the next three years plaintiff’s life was quite miserable as he tried to carry the entire burden of running his household and defendant did little more than prepare the meals, drink and pass out on a daily basis. Finally, with, the deterioration of her family relationship she was admitted to De Paul Hospital on November 14, 1977, for further treatment. Following a course of drug therapy she became less depressed and was discharged on December 15. The final diagnosis was schizo-affective schizophrenia, depressed type and chronic alcoholism.

It would be an over simplification to say that defendant was guilty of habitual intemperance simply because she was an alcoholic and that she was therefore at fault under LSA-C.C. Art. 138(3) because she did not have or did not exercise the will power to stop drinking. Without attempting to detail the testimony of Dr. Dawes and another psychiatrist, Dr. Escalada, who examined defendant shortly before the trial in September, 1978, it seems clear that her drinking was at least in part caused by her mental illness. In the first place, her mental illness caused severe depression which, in turn, led her to use alcohol as a means of overcoming the depression. In the second place, her mental illness surely lessened her ability to overcome her attraction for or tendency to the use of alcohol as compared to the typical alcoholic who does not suffer from an independent or other mental illness, such as schizophrenia. The habitual intemperance of Art. 138 must be the fault of the spouse and this record does not support a conclusion that defendant’s excessive drinking was her fault. Thus, we readily conclude that the trial judge was correct in dismissing plaintiff’s petition but we do not agree with his conclusion with respect to defendant’s reconventional demand for a separation based upon abandonment by plaintiff.

Plaintiff filed his suit in December, 1977, while defendant was in the hospital for the third time. After her discharge he insisted that she leave home and take up residence in an apartment he had found for her or he would leave home himself. Because of their children who would be better off at home and in the custody of their father, defendant left the matrimonial domicile. The trial judge concluded that plaintiff’s loss of his suit against defendant, based on habitual intemperance, required him to conclude that plaintiff’s action was “without a lawful cause” so as to entitle defendant to a judgment based on abandonment under C.C. Art. 143. As the trial judge put it, during the course of the trial:

“If Mrs. Anderson is culpable for her drinking, then Mr. Anderson had every right to put her out of the house. That would not be abandonment. Okay.
If she is not culpable, he is guilty of abandonment. If her- — if she is an alcoholic and it is an illness to cause her habitual intemperance, he is bound to reside with her.”

This statement is contrary to the law as found in Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir. 1979), Courville v. Courville, 363 So.2d 954, Sikes v. Sikes, 321 So.2d 805 (La.App. 4th Cir. 1975). Simply because plaintiff did not prove his case for a separation based on the fault of defendant, did not relieve defendant in her reconventional demand from proving that his compelling her to leave the matrimonial domicile was “without a lawful cause.” From the recitation of the facts already provided, it is clear that plaintiff had lawful cause for separating from his wife and she is not entitled to a judgment of separation against him for abandonment.

In his judgment the trial judge included a specific decree “finding Mrs. Anderson free of fault.” we regard this inclusion in the judgment as somewhat curious in that this is not a claim for post-divorce alimony in which a finding of freedom from fault would be relevant and Art. 143 does not involve a finding of freedom from fault, per se. The proper inquiry with respect to fault on the reconventional demand was whether plaintiff’s action was “without a lawful cause,” a matter which we have already discussed. Thus, we have concluded that the portion of the judgment “finding defendant free of fault” was unresponsive to the pleadings and not properly included in the judgment.

Accordingly, the judgment on the main demand, dismissing the suit of plaintiff, Robert D. Anderson, is affirmed. That portion of the judgment in favor of Mrs. Alma Anderson decreeing a separation from bed and board and finding Mrs. Anderson free of fault is reversed and set aside, and there is judgment in favor of Robert D. Anderson as defendant in reconvention, dismissing the reconventional demand of Mrs. Alma Anderson as plaintiff in reconvention. In all other respects, the judgment appealed from is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: REDMANN, Judge.

text:
    Dorothy Jill SINGLETARY v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans, et al.
    No. 11210.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 1980.
    Writ Refused March 3, 1980.
    W. Matthew Campbell, III, New Orleans, for plaintiff.

      Philip H. Kennedy, Louisiana Dept, of Health and Human Resources, New Orleans, for Stanley G. Brown, State Registrar of Division of Vital Statistics.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   ON MOTION TO DISMISS

REDMANN, Judge.

Because an order to a curator ad hoc to inspect in private plaintiff’s adoption record and to report findings in private to the judge (see La.C.C.P. 5091.2, La.R.S. 40:81 A, and Massey v. Parker, La.1979, 369 So.2d 1311) is interlocutory but is not “an interlocutory judgment which may cause irreparable injury,” C.C.P. 2083, it is not appeala-ble.

This appeal by the Registrar from such an order is therefore dismissed.


author: GARRISON, Judge.

text:
    YORKWOOD SAVINGS AND LOAN ASSOCIATION v. Alvin THOMAS, Jr. and Gloria Dean Thomas.
    No. 10317.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Adcock, Dupree & Shows, Sharon E. May, Jerry F. Davis, Baton Rouge, for plaintiff-appellant.
    Robert H. Matthews, New Orleans Legal Assistance Corp., Patrick D. Breeden, New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff appeals from a judgment dissolving the writ of sequestration by which it had seized defendant’s mobile home. We affirm, on the basis that plaintiff failed to allege or prove the grounds upon which writ was issued.

Plaintiff’s petition combined a suit on a note and chattel mortgage with a prayer for sequestration, which stated:

“The mortgaged property is presently in the possession of defendants and it is within their power to conceal, dispose of, or part with or remove same from this parish during the pendancy of this suit, and in order to protect the rights of petitioner, a writ of sequestration should issue herein directing the seizure of said mortgaged property.”

This allegation is basically a restatement of C.C.P. Art„3571, which lists the grounds for sequestration. C.C.P. Art. 3506 provides, “The defendant by contradictory motion may obtain the dissolution of a writ of attachment or sequestration, unless the plaintiff proves the grounds upon which the writ was issued. * * * ” The defendants filed a motion to dissolve the writ and a hearing was held on the motion, but there was no testimony or other evidence presented by either side. The trial judge granted defendant’s motion without giving either oral or written reasons.

C.C.P. Art. 3501 provides:

“A writ of attachment or sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance for the writ clearly appear from specific facts shown by the petitioner verified by, or by the separate affidavit of, the petitioner, his counsel, or agent. * * * ”
[Emphasis added.]

Art. 3501 must be strictly and literally complied with because it deals with the extremely harsh remedy of a conservatory writ. Hancock Bank v. Alexander, 237 So.2d 669 (La.1970). A mere conclusory allegation of plaintiff’s grounds, such as appears here, fails to show the specific facts constituting petitioner’s grounds, and therefore fails to satisfy Art. 3501’s requirements. See Hancock v. Alexander, supra. The writ was properly dissolved.

Moreover, even had plaintiff’s allegation been sufficient, plaintiff utterly failed to prove these grounds at the hearing on the motion to dissolve. Once defendant files a motion to dissolve, the burden of proof is shifted to the plaintiff to establish the facts constituting grounds for issuance of the writ. C.C.P. Art. 3506; Charles A. Kaufman C., Ltd. v. Gregory, 244 La. 766, 154 So.2d 392 (1963). (Although the Kaufman case dealt with attachment rather than sequestration, the provisions of C.C.P. Art. 3506 apply to either writ.) Plaintiff here utterly failed to discharge its burden of proof; thus, defendant was entitled to the order, of dissolution.

For the reasons above, the district court’s judgment is affirmed.

AFFIRMED.


text:
    Angela Isaura SALAZAR, wife of Walter Karl Rainer Maschmayer v. Walter Karl Rainer MASCHMAYER.
    No. 10324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Marilyn A. Boothe, New Orleans, for defendant-appellant.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellee.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

Walter Maschmayer appeals from a judgment which dismissed his petition to annul a judgment increasing the amount of his child support payments. The judgment on his petition for nullity also made executory past-due child support. He specifies the following errors on appeal:

(1) The court erred in finding that he was properly and legally served pursuant to R.S. 13:3201;
(2) The court erred in finding that he had legal and actual notice of the hearing on the rule to increase child support;
(3) The court erred in not annulling the judgment on the rule to increase child support.

On November 7, 1975 Angela Maschmayer divorced Walter Maschmayer. By consent judgment pendente lite, the parties had agreed that Angela would have custody of the four minor children and that Walter would pay child support in the amount of $100 per month. This agreement was carried over into the divorce judgment. In January 1978 Angela filed a rule to show cause why child support should not be increased. Because Walter was now living in Houston, Texas, Angela’s attorney mailed Walter a certified copy of the rule notice under the provisions of the Louisiana Long Arm Statute, R.S. 13:32o!. On March 15, 1978, the rule was made absolute, and child support was increased to $977.00 per month.

Walter continued making his child support payments, but only in the original amount, $100 per month. On June 30,1978, Angela filed another rule, this time to make past-due child support executory. On September 1, 1978, Walter filed a petition to nullify the judgment of March 15, 1978 which had increased the amount of child support. At the trial of this petition, consolidated with the rule to make past-due child support executory, the following uncontested facts were elicited:

(1) The envelope containing notice of the rule to increase, mailed by Angela’s attorney to Walter’s Houston business address, had been refused by Walter.
(2) The envelope was returned to Angela’s attorney marked “Return to Sender,” “Refused,” and “Refused to Pay Postage Due.”

The crucial question to be answered by the trial judge was whether the envelope had been mailed with proper postage affixed.

John B. Brown, Jr., a Postal Service employee certified as an expert in post office procedures, testified that correct postage on the envelope on January 26, 1978 would have been $1.58, which was the amount affixed. He concluded the “Refused to Pay Postage Due” marking must have been stamped in error, because there was no marking to indicate an attempt to collect additional postage. He said there would have been a meter tape that would read “Postage Due” and show whatever amount was to be collected. The tape would have been stamped and voided before being returned to sender. Further, if the envelope had been sent with postage due the sender would have had to pay that amount to get the letter back, yet there was no evidence of this on the envelope.

Walter Maschmayer himself testified that he refused the letter because his Texas attorney had advised him not to accept any certified letters from Louisiana. He could not remember whether there was any postage due on the letter. He said he didn’t know what this latter was about, but that a friend in New Orleans had told him there was a hearing set. His Texas attorney, however, said that since he hadn’t been served with any papers he should let things take their course. Walter testified that he always refused any certified or registered mail from Louisiana unless it was addressed to him at his office, using his business title.

Laurence Rudman, who was Angela’s attorney at the time the notice was sent, testified that he had to pay 24$ postage due when the envelope came back. He understood it was for return of the letter to him.

The issue involved here is purely a factual question and thus is ruled by the manifest error doctrine. The evidence was conflicting on the question whether sufficient postage had been affixed. The trial judge, however, obviously agreed with the Postal Service employee’s opinion that “Postage Due” was stamped on the envelope in error. The judge states in his oral Reasons for Judgment,

“I am convinced that not only was the notice properly mailed, I am convinced also by the preponderance of the testimony that there was sufficient postage thereon. I am convinced by Mr. Maschmayer’s lack of specific knowledge about the postage. I am convinced that there was no postage due at the Texas site. I am convinced by Mr. Maschmayer’s own testimony that on the advice of Texas counsel, which may have been bad, that he was refusing, intentionally refusing notices of anything that may notify him of the trial of any issue in this case. Because, I think he very candidly told us from the stand he certainly knew of all the events going on. Therefore, I think the requirements of the Long Arm Statute have been made.”

This was a reasonable inference of fact, which this court cannot overturn absent manifest error. The record supports the trial judge’s findings, and he was not clearly wrong. Accordingly, we affirm the judgment of the district court.

AFFIRMED.

      . The Long Arm Statute, in pertinent part, reads as follows:
      “§ 3201. Personal jurisdiction over nonresidents
      A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s * * * non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state. Added by Acts 1977, No. 734, § 1 eff. July 21, 1977.”


author: CHEHARDY, Judge.

text:
    DENNIS MILLER PEST CONTROL, INC. v. DENNEY MILLER, JR. PEST CONTROLS, INC., and Dennis Miller, Jr.
    No. 10345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Phelps, Dunbar, Marks, Claverie & Sims, Rutledge C. Clement, Jr., New Orleans, for plaintiff-appellee.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendants-appellants.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Plaintiff, Dennis Miller Pest Control, Inc., obtained a judgment permanently enjoining Dennis Miller, Jr., and several defendant corporations in which he has controlling interest from operating a pest control and termite exterminating business under any trade name deceptively similar to that of plaintiff. This litigation grows out of a series of business transactions between plaintiff and Dennis Miller, Jr., that were entered into after the Martin Company purchased the plaintiff corporation from Dennis Miller, Sr., in 1973 for $450,000. On May 28, 1973, Dennis Miller Pest Control, Inc., after having been acquired by Martin, entered into a written agreement to employ Dennis Miller, Jr., as president and general manager of the company for a period of five years. In addition to a salary, Miller, Jr., as part of his compensation for services, was to be permitted to occupy living quarters located above the business offices of Dennis Miller Pest Control, Inc., at 7829 Fig Street.

On August 20, 1976, plaintiff corporation and Dennis Miller, Jr., entered into a written agreement to terminate the employment contract. Thereafter, Miller, Jr., still occupying the Fig Street quarters with plaintiff’s permission, opened a business for repairs of automobiles and transmissions which he discontinued after three months. Then in November, 1976, he opened a termite and pest control business under the trade name of Denney Miller, Jr. Exterminating, Inc. Plaintiff also demanded damages for unfair competition, which, it contends, should be trebled under the Unfair Trade Practices and Consumer Law, L.R.S. 51:1401 et seq.

Plaintiff additionally demanded rent of $2,000 for occupancy of the Fig premises from August 20, 1976 through May 1, 1977; utilities of $372.39; and reimbursement for damages to the furnishing and appliances in the quarters Miller, Jr., occupied.

By reconventional demand, Miller, Jr., demanded that plaintiff refund $4,750, the deposit he made in connection with an agreement to purchase the Fig Street property which was never transferred because he could not obtain the necessary financing.

All litigants have appealed the judgment of the trial court which (1) granted the permanent injunction prohibiting Denney Miller, Jr., from using his name in the trade name of a pest control company so that it was deceptively similar to that of plaintiff; (2) permitted Miller, Jr., to use the name Denney Exterminating, Inc.; (3) awarded plaintiff $1,670.95 rental against Denney Miller, Jr., for his occupancy of the Fig Street property from August 21, 1976 through April 30, 1977 at the rate of $200 per month; (4) ordered plaintiff to return the $4,750 deposit given in connection with the agreement to purchase; and (5) rejected all demand for damages and attorney fees.

THE PRELIMINARY INJUNCTION

Plaintiff, after paying Dennis Miller, Sr., $450,000, began operations of its business under a logo that was well established in this area. After the new owner was operating three years, Miller, Jr., originally employed by plaintiff, went into his own business, first as Denney Miller, Jr. Pest Control, Inc. Subsequent to plaintiff’s filing and obtaining injunctive relief against the use of this similar name and while this matter was still pending in the trial court before the merits of the permanent injunction were heard, defendant Dennis Miller, Jr., began conducting business as “Denney Miller, Jr. Extermination, Inc.” and “Den-ney Miller, Jr., Exterminating, Inc.” The record reflects that while Miller, Jr., used these various trade names plaintiff corporation’s identity was confused with the various Miller, Jr., entities in that customers of Miller, Jr., would call plaintiff to complain, the bank where both plaintiff and defendant had accounts confused the accounts, the mail for one was delivered to the other and plaintiff’s employees received several calls daily for Denney Miller, Jr., long after he left. The trial court, in issuing the injunction, concluded any combination of the full name “Dennis” and “Miller” in a trade name, or even the name “Miller” alone would create confusion. On appeal, Miller, Jr., argues this result deprives him of the right to use his name and cites White v. White, 68 So.2d 648 (La.App. 1st Cir. 1953), for the proposition that anyone has the right to use his own name in doing business even if it is identical with that of a competitor. However, the White rules is not absolute. The court noted the name must be used honestly and may not be employed to accomplish a deceitful purpose. We quote this summary of the rule from White:

“The Louisiana Supreme Court in 1920, in the case of Tharp-Bultman-Southeimer Co. v. Tharp-Southeimer-Tharp, Inc., 147 La. 765, 85 So. 906, which case is very similar to the case at bar, stated the principle of law as follows:

‘The weight of jurisprudence in this country sustains the doctrine that, in the absence of a contract restricting the exercise of such right (and the capacity for such restriction is limited), everyone may use his own name honestly, in his own business, and in the earning of his own livelihood and that of his family, but no one may lawfully resort to artifice or deceit for the purpose, or with the intent and effect of misleading or confusing the public and palming off his services, goods or products as that of another.’ ” 68 So.2d at 650.

In the case before us, the evidence leaves no doubt that the use by Miller, Jr., of the name Denney Miller, Jr. Pest Control, Inc., created confusion and caused plaintiff to lose a certain number of its accounts. L.R.S. 51:223 gives the owner of a service mark that has been wrongfully converted and used by another the right to injunctive relief. When one business appropriates a name similar to that of an established competitor which diverts good will of the established business to the new entity due to confusion, the courts will grant injunctive relief. Dynasty Room, Inc. v. Whiskey-A-Go-Go, Inc., 186 So.2d 402 (La. App. 4th Cir. 1966). The trial judge concluded that use by plaintiff of the names Dennis or Denney and Miller would do just that and rob plaintiff of an asset acquired five years earlier.

Plaintiff concedes it had no objection to Miller, Jr., operating a pest control and exterminating business under a name that cannot be confused with its corporation. We think permitting the use of the name “Denney’s Exterminating Service” sufficiently distinguishes these entities.

THE RENTAL

Miller, Jr., admits he occupied the premises above the plaintiff’s offices rent free from August 21,1976 through April 30, 1977 and agrees with the trial court’s conclusion that rental of $200 based on a quantum meruit theory is adequate. Obviously some compensation is due and we find no error in the sum fixed by the trial court because, absent a specific agreement, an estimated value is the only basis for making an award. Thus the judgment of $1,670.95 was proper. In this connection we note the buy/sell agreement to be hereinafter discussed fixed rental value at $200 per month.

THE DEPOSIT

After signing an offer to buy 7829 Fig Street for $47,500, Dennis Miller, Jr., deposited with plaintiff $4,750. The contract stated that financing of $50,000 payable over a 30-year period was to be obtained and an act of sale passed within 30 days of the signing of the agreement. Miller, Jr., applied to the Veterans Administration for financing and was turned down.

Miller, Jr., testified he did not apply to a homestead for conventional financing because he did not have sufficient cash to satisfy the down payment requirements set by these institutions. When the 30 days expired Miller, Jr., refused to sign an extension of time within which to execute the sale because at this point in time he knew he could not obtain the loan. At no time did plaintiff tender title to Miller, Jr. C.C. art. 1913 provides that in commutative contracts, where the reciprocal obligations are to be performed at the same time, the party wishing to put the other in default must tender performance, otherwise the party would not be legally in default.

The trial judge observed, and we agree, that it is virtually impossible for any purchaser to obtain financing and have an act of sale passed within 30 days as this agreement required. Viewed in the light most favorable to plaintiff, even if Miller, Jr., did not make a bona fide effort to obtain financing, the plaintiff’s failure to tender performance had the effect of negating the agreement once the time specified for execution expired. We find that Miller, Jr., in applying for V.A. financing, made a good faith effort to comply with the terms of the agreement, vague as they were.

DAMAGES

The trial court rejected plaintiff’s demand for damages it alleges it suffered due to Miller, Jr.’s using a deceptively similar name because plaintiff failed to sustain its burden of proof. We agree. Although it was demonstrated that Dennis Miller Pest Control, Inc., lost accounts to Miller, Jr.’s firm, witnesses who themselves are involved in the pest control business stated that customers often place business because of the individual servicing the account, not because of any loyalty to the firm. Thus some loss of customers to Miller, Jr., was to be expected.

While the amount of accounts which transferred from plaintiff to Miller, Jr.’s firm might have been somewhat high, plaintiff failed to establish exactly what amounts of profit it lost. The only financial information furnished was that plaintiff’s monthly billings diminished after Miller, Jr., left the firm and opened his own business. Thus we have a comparison of gross receipts for two different periods which does not prove lost profit. We might also mention that plaintiff’s management was in a state of flux because they changed branch managers frequently during this period of time when profits dropped. This too could have contributed in large measure to the business decline experienced by plaintiff. In any event the proof offered is insufficient to establish any damage was sustained in the form of lost profits. Likewise the evidence to the effect that Miller, Jr., damaged the furniture and fixtures in the apartment he occupied on Fig Street is also fuzzy. The trial court concluded in both cases the proof was insufficient and we are in full agreement with his finding.

For the reasons assigned, the judgment appealed from is affirmed. Each litigant is to pay his own costs of appeal.

AFFIRMED.


author: STOULIG, Judge.

text:
    CREOLE CORPORATION v. Mr. and Mrs. Calvin McMILLAN.
    No. 10402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.

      Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Ralph R. Miller, Wayne W. Foley, Miller & Foley, Norco, for defendants-appellants.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal by Mr. and Mrs. Calvin McMillan (McMillan) from a judgment awarding plaintiff, Creole Corporation (Creole), damages of $20,526.48 for breach of contract of lease. The judgment is silent as to the defendants’ reconventional demand and therefore it must be considered as rejected; however, in the written reasons for judgment the trial court found that reconvenors failed to prove the elements of their claim. Appellants did not address this issue on appeal.

The facts are plaintiff leased from defendants a building and surrounding parking area to operate in Norco, Louisiana one of its franchise outlets “Tastee Freez”. The written contract of lease, dated February 22, 1976, is for a period of one year commencing on March 1, 1967 with the option to renew the lease for four one year periods. Lessee has the further option to renew the lease for an additional five year period at an increased rental. Because of the seasonal nature of plaintiff’s business, the sale of ice cream and related products, the rental of $85 per month is payable for only eight months, March through October of each year.

On the same day plaintiff sublet the premises to Mr. and Mrs. Allen J. Weber, who successfully operated the franchise outlet from March 1, 1967 to August 12, 1968, on which date the defendants padlocked the door and denied the sublessee access to the building. Under its sublease plaintiff was to receive a franchise surcharge of 39 cents per gallon on each gallon of mix purchased by Weber and it is this loss of profit projected over the remaining life of the lease which plaintiff seeks to recover as damages for defendants’ breach.

Plaintiff offered the record in the Weber case as proof of the fact that the defendants illegally padlocked the premises and thereby violated the peaceful possession guaranteed by the lease. Counsel for defendants objected to the admissibility of this evidence which was admitted subject to the objection which was later withdrawn during the course of his argument on appeal. In addition, the President of Creole also testified that he personally observed the padlock on the door and did enter into discussions with McMillan to resolve their differences. The record amply supports the trial court’s finding that the defendants did illegally disturb the plaintiff’s peaceful possession of the premises by depriving him of its use.

In arriving at the damages sustained by plaintiff the trial court used the gallon-age of mix purchased by Weber during the 12 months preceding the padlocking incident which he apparently multiplied by the 39 cents per gallon surcharge. He then projected this sum for a period of 8V2 years being the remaining term of all the lease options. This computation overlooks several factors that will cause a reduction in the amount.

The purchases of mix by Weber which the third party supplier itemized by months from May, 1967 through April, 1968 reflect that a total of 6,192 gallons were delivered and under his franchise fee of 39 cents per gallon, plaintiff received $2,414.88 for this period. However, Richard Bell, Creole’s President and only witness testified that in October, 1970 a sublease was entered into with Odell Nichols who operated the outlet for approximately seven months before Mrs. McMillan’s harassing tactics and threats forced him to leave. These accusations were not disputed by defendants. Later the premises were rented for two months to John Lachiolet. The Nichols and Lachiolet leases in addition to the 39 cents per gallon surcharge also provided for increased rentals and equipment charges; however, since the leases were not introduced into evidence, the trial court disregarded the increased benefits and applied only the surcharge fee. Mr. Bell testified that plaintiff exercised the options and renewed the lease through February, 1974.

Applying the foregoing, it must be concluded the gross term of the lease, extended from March 1, 1967 through February 20, 1974 for a total of seven years. During this period the premises were occupied 27 months (18 by Weber, 7 by Nichols and 2 by Lachiolet), leaving a net unoccupied term of four and three-quarters years that plaintiff sustained a loss of profit at an annual rate of $2,418.88.

We are of the opinion that plaintiff has submitted the best evidence available to support a projected loss of future profits-— his past experience factor which clearly established as of 1968 the yearly franchise return amounted to $2,418.88. No evidence was adduced to reflect any inflationary increase in the 39 cents per gallon franchise surcharge. Plaintiff therefore suffered a loss of profit of $11,489.68 ($2,418.88 times four and three-quarters years).

Defendants contend that they are entitled to a credit for the unpaid rental from the time Weber vacated the premises August 12, 1968 through February 28, 1974, the date plaintiff elected not to renew. The testimonial and documentary evidence establishes that plaintiff religiously mailed the rental checks each month to the defendants who refused to negotiate them. Defendants are entitled to a credit of $765 representing the rent for the nine months the property was occupied by Nichols and Lachiolet during which it is presumed that plaintiff received at least this amount of rental from these sublessees. Defendants cannot claim rent for the months the property was unoccupied because of their illegal actions which deprived plaintiff of the rental it would have otherwise received from its sublessees for these months.

For the foregoing reasons the judgment of the trial court is amended to reduce the judgment in favor of plaintiff Creole Corporation and against Mr. and Mrs. Calvin McMillan from $20,526.48 to $10,724.68. In all other respects the judgment is affirmed. Appellants are to bear all costs of this appeal.

AMENDED AND AS AMENDED, AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff-appellee, Creole Corporation, urges as a basis for granting its application for rehearing that this court erred in concluding that the gross term of the lease was for seven years when in fact it was for a gross term of ten years.

It is conceded that the original term of the lease and additional option periods if exercised would have resulted in a lease of the property for a period of ten years. However, as stated in our opinion, Richard Bell, President of Creole Corporation, testified that the lessee-corporation did not renew the lease after February, 1974. Since the original lease commenced on March 1, 1967, the total term of the lease for purposes of computing the loss of profit to the lessee is seven years. Applicant in electing not to exercise any of the options remaining after February, 1974 effectively terminated the lease as of that date.

Applicant’s second contention that this court should take judicial cognizance of inflationary increases and adjust the award accordingly is without merit. There is no evidence in the record to reflect the extent of such increases and this court cannot go beyond the record and indulge in speculation.

The application is denied.

      . Stringer v. Todd, 305 So.2d 696 (La.App. 4th Cir. 1974).

      . The Webers sued both McMillan and Creole and were awarded a judgment severally against Creole in contract (failure to maintain in peaceful possession) and against McMillan in tort (illegal padlocking of the leased premises). Weber v. McMillan, 285 So.2d 349 (La.App. 4th Cir. 1973).


author: HOOD, Judge.

text:
    Luisita Alicea FREDERICK v. Donald Anthony FREDERICK.
    No. 10443.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Darleen M. Jacobs, New Orleans, for plaintiff-appellee.
    Kronlage, Dittmann & Caswell, Robert M. Caswell, New Orleans, for defendant-appellant.
    ' Before BOUTALL, SCHOTT and HOOD, JJ.
   HOOD, Judge.

Defendant, Donald Anthony Frederick, appeals from a judgment rendered on September 26, 1978, which condemns him to pay to plaintiff, Luisita Alicea Frederick, $200.00 per month as alimony pendente lite, $800.00 per month for the support of his two minor children, and $484.44 per month on a house note. We amend the judgment appealed from by reducing the amount of support awarded to the minor children, and affirm it in all other respects.

The sole issue presented is whether the amount awarded as alimony pendente lite and as child support is excessive.

The parties separated on August 21, 1978, and Mrs. Frederick instituted this separation suit ten days later. Judgment was rendered on September 26, 1978, ordering defendant to pay to plaintiff alimony pen-dente lite and child support as above set out. The payments required by that judgment amount to the aggregate sum of $1,484.44 per month. A new trial was granted, but after a hearing the trial court confirmed the original decree and ordered defendant to pay the alimony and support which had been awarded previously. Defendant appealed.

Defendant Frederick is a geophysicist for Shell Oil Company, and has been employed by that company for more than ten years. His gross wages amount to $3,100.00 per month, and his net take-home pay is about $1,853.02 per month. Among a few other deductions, the following amounts were being regularly withheld from his paychecks at the time of the trial: (1) $872.50 per month for Federal income taxes; (2) $37.76 for State income taxes; (3) $310.00 per month which he contributes to a savings plan, approved by Shell, known as the Provident Fund; and (4) $10.00 per month which he contributes to a Charity Fund. He has the right to discontinue his contributions to the Provident Fund and to the Charity Fund, and if he should do so then his net take-home pay would amount to $2,173.02 instead of $1,853.02 per month.

Frederick has been contributing to the Provident Fund for almost ten years. His employer, Shell, matches each contribution he makes. Shell, for instance, contributes $310.00 to defendant’s account in the Provident Fund for each contribution of that amount made by defendant. If Frederick should discontinue making payments to that fund, he would lose the matching contributions which are made by Shell. Frederick stated that he has the right to withdraw from that fund the sums which he personally contributed to it, but that he does not have the right to withdraw the contributions which have been made by Shell until he retires from his employment. In case of his death, his wife and children (who are his named beneficiaries) will receive the remaining balance of his account in that savings fund.

Defendant has no income other than the wages which he receives from Shell. Plaintiff contends, however, that counsel for defendant “conceals the fact that at the time of the rehearing of this matter” defendant had approximately $28,000.00 in the Provident Fund and $27,000.00 “in banks.” She argues that these are “assets enhancing his community income.”

We find no evidence to support her assertion that he had the above sum of money “in banks.” With reference to his account in the Provident Fund, the record contains some accounting sheets showing defendant’s earnings during the year 1977 and during most of 1978, with the deductions which were made from his paychecks during those periods. These accounting sheets were filed on November 10, 1978, and we assume from that fact that they were produced when the matter was heard on rehearing. They show that during 1977 and most of 1978 the aggregate sum of $5,530.00 was withheld from Frederick’s paychecks for contributions to the Provident Fund. They do not show whether any part of those funds have been withdrawn by defendant or whether they are available to him now. The evidence is not sufficient to warrant a holding that defendant has other substantial assets, as claimed by plaintiff, which should be at least partially depleted to provide the alimony and support ordered by the trial court.

Frederick purchased a new home on June 2, 1978, and Mrs. Frederick moved into it when the parties separated on August 21, 1978. She has been living there since that time, and defendant has been making regular payments of $484.44 per month on the purchase price of that home.

The parties have two children, who were 8 and 9 years of age at the time of the trial, and the court awarded custody of those children to the mother.

Mrs. Frederick testified that she is unemployed, that she quit her employment by WSMB and that she has no intention of going back to work. Although she considers herself to be unemployed, she concedes that she has had a real estate license since February, 1978, that she works for a real estate agency in New Orleans on a commission basis, that she has earned some commissions from the sale of property, and that one of her real estate listings now is the community-owned home where she and her husband lived before they separated. The evidence indicates that her commissions for the sale of real estate amounted to $1,837.50 up to November 8, 1978. It also indicates, however, that a buyer has executed an agreement to purchase the community-owned home, and that if and when the sale is completed Mrs. Frederick will receive a commission of slightly more than $2,000.00.

Plaintiff testified that she will have to spend $2,160.84 per month for the support of herself and her two children. Defendant estimated his living expenses to be about $2,629.00 per month. Each party contends that the estimated cost of living listed by the other is inflated. We agree that some of the items listed as living expenses by each party should be eliminated or reduced. Our ultimate conclusion, however, is that despite the fact that some of the items of expense listed by each might be excessive, the evidence nevertheless shows that the needs of the wife and of the two children exceed the husband’s ability to pay.

At the time the judgment of the trial court was rendered, Article 148 of the Louisiana Civil Code provided:

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

In making an award for alimony pendente lite, the court must take into consideration the needs of the wife and the means of the husband. If the needs of the wife exceed the husband’s ability to pay, then alimony pendente lite should be fixed at a sum which will, as nearly as possible, be just and fair to all parties involved. Shepard v. Shepard, 334 So.2d 745 (La.App. 3rd Cir., 1976); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir., 1979).

The fixing of the amount which the husband should be required to pay to his wife as alimony pendente lite is largely within the discretion of the trial judge, and his conclusions as to the amount of the award ordinarily will not be interfered with on appeal unless there has been an abuse of that discretion. Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir., 1972); Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Cir., 1979).

In the instant suit defendant’s present take-home pay amounts to $1,853.02 per month. The judgment appealed from orders him to pay the aggregate sum of $1,484.44 per month as alimony and child support. If he is compelled to make those payments it will leave him only $368.55 per month to meet his own living expenses. He will require more than that to exist.

The trial judge apparently felt that defendant should discontinue making contributions to the Provident Fund and to the Charity Fund, so that more money would be available to pay alimony and support. If he does that his take-home pay will be increased to $2,173.02, but even so it would leave him only $688.58 for his own expenses after paying $1,484.44 per month as alimony and child support. We find that also to be inadequate to meet his own living expenses, particularly in view of the fact that he must continue to report for work regularly, to pay insurance premiums, and to make payments on other existing debts. We also have decided that defendant should not be compelled to discontinue contributing to the Provident Fund or to the Charity Fund. If he is required to stop his payments to the Provident Fund, he will lose the matching contributions made by Shell. Plaintiff and her children are the beneficiaries of that fund, and in the event of defendant’s death, they will receive those matching contributions. We believe the advantages which plaintiff and her children will receive from that savings account ultimately will benefit them more than they would be helped by a slight increase in their present alimony and support payments, if those payments in fact could be increased at all, but accompanied by the loss of Shell’s matching contributions.

The record indicates that the trial judge erred in his factual finding as to the amount of defendant’s take-home pay, and it may be that largely because of that error he fixed the alimony and support at the figures shown in his judgment. After the evidence had been presented, a comment was made by the trial judge to the effect that defendant Frederick had take-home pay amounting to $2,669.00 per month. As has already been pointed out, defendant’s take-home pay was considerably less than that sum.

Our conclusion is that the trial court erred or abused his discretion in ordering defendant to pay alimony and child support in the aggregate amount of $1,484.44, and that that award must be reduced. We think a just and fair award to plaintiff would be $200 per month as alimony pen-dente lite, $400.00 per month as child support, and a requirement that defendant continue to make payments of $484.44 on the home which is occupied by plaintiff. These payments would amount to the aggregate sum of $1,084.44, which we believe is fair and reasonable to all parties, under the facts and circumstances presented here.

The judgment appealed from is amended to decree that defendant is ordered to pay plaintiff $200.00 per month as alimony pen-dente lite and the sum of $400.00 per month as child support, and that defendant also is ordered to continue making payments of $484.44 per month on the purchase price of the home which is occupied by plaintiff and the children, all of which payments amount to the aggregate sum of $1,084.44. In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AMENDED and AFFIRMED.


text:
    COURTNEY CORPORATION v. Francis J. DEMAREST, Recorder of Mortgages, Parish of Orleans, State of Louisiana.
    No. 10492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused March 27, 1980.
    Janine Syll Dingleman, Martzell, Montero & Lamothe, New Orleans, for plaintiff.
    Leo S. Roos, New Orleans, for defendant.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   REDMANN, Judge.

In another lawsuit, Angelo Marsalone seeks to rescind a contract by which (among other things) he transferred to Brian Investments, Ltd. 100% of the stock of Courtney Corporation, which owns the immovable property 444 Broadway, New Orleans. Marsalone recorded in the land records a notice of the pendency of that action, describing it as one “to rescind the sale of 444 Broadway.” Courtney Corporation thereupon filed this action to erase that notice of lis pendens. Marsalone now appeals from a judgment ordering the notice erased. We affirm.

The basic question is whether an action to rescind a transfer of corporate stock is one within La.C.C.P. 3751, “affecting the title to, or asserting a mortgage or privilege on, [the] immovable property .” the corporation owns. The answer is no: the corporation’s title to its immovable property is wholly unaffected by any change in the ownership of its corporate stock. Marsalone’s original transfer of 100% of Courtney’s shares to Brian did not affect Courtney’s title to 444 Broadway, and any judgment returning those shares to Marsalone will not affect Courtney’s title to 444 Broadway.

One who transferred 100% of a corporation’s shares and who sues to claim their return will understandably wish to prevent a disadvantageous disposition of the corporate assets while his claim is pending. But until his claim is established he is an outsider, and he may not, by merely filing notice of the pendency of a suit claiming share ownership, tie up corporate im-movables any more than he can tie up the corporate checking account. The law does not allow such a claimant to paralyze the corporation for months or years while his claim is decided — a claim that may not be well founded, a claim that may in the end be dismissed by the courts. The law could not reasonably allow any claimant on any pretext to thus prevent the true corporate shareholders from exercising their rights. The lis pendens notice statute is not designed to afford the effect of injunctive relief to persons who are not entitled to it. The judgment ordering erasure of Marsa-lone’s lis pendens notice is correct.

The only remedy available to such a claimant is the injunctive process: if his claim is so clearly valid he may obtain a temporary restraining order and then a preliminary injunction prior to a final decision on the merits and, by recording those preliminary judgments, he may protect his interests. Marsalone sought but was denied injunctive relief.

There remains to be said, because appellant contends the contrary, that C.C.P. 3753 expressly governs cases in which judgment is being rendered on the merits of the basic claim, and does not require that mandamus to erase the notice, prior to decision on the merits of the claim, be filed before the same judge who will decide the basic claim.

Affirmed.


author: LEMMON, Judge.

text:
    Donald R. GUIDRY et al. v. Darlene M. ZERINGUE et al. Milton FOLSE et al. v. Norman J. NAQUIN et al.
    Nos. 10566, 10567.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.

      Garland R. Rolling, Metairie, for Norman J. Naquin, third party plaintiffs-appellees.
    Bienvenu, Foster, Ryan & O’Bannon, John W. Waters, Jr., New Orleans, for Trinity Universal Ins. Co., third party defendants-appellants.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This appeal involves a judgment on a third party demand by Norman Naquin against Trinity Universal Insurance Company, Naquin’s alleged automobile liability insurer, for the attorney’s fees incurred by Naquin in defending two consolidated suits in which Trinity denied coverage of Naquin. All claims other than this third party demand were settled on the morning of trial, and the matter proceeded to trial on this demand only. The trial court rendered a judgment awarding attorney’s fees in the stipulated amount, and Trinity appealed. The sole issue on appeal is whether Trinity owed Naquin a defense.

In the October 24, 1976 accident which gave rise to these suits Naquin’s minor son was driving a 1975 Chevrolet pickup truck. In September, 1976 Naquin had applied for insurance under the Louisiana Insurance Plan (Assigned Risk), and Trinity was assigned to provide coverage. In the application Naquin listed a 1972 Buick sedan as the only vehicle to be insured, although he also owned the 1975 Chevrolet pickup truck, having purchased it in July, 1975. When Naquin’s agent requested additional information by mail, the question inquiring about other owned vehicles was left blank. Trinity’s policy, issued on September 5, 1976, listed only the Buick. The policy also contained the following provisions:

“The Company . . . agrees . . :
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: “A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by any person;
“B. injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’;
“arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent, but the company may make such investigation and settlement of any claim or suit as it deems expedient.
******
“Definitions . . . :
“ ‘Owned automobile’ means
“(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded.
******
“(d) a temporary substitute automobile; “ ‘temporary substitute automobile’ means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“ ‘non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.” (Emphasis supplied)

The original petitions named Naquin and Trinity as defendants solidarily liable and alleged Naquin’s son’s negligence in driving an automobile owned by Naquin and driven with Naquin’s permission. The petitions further alleged:

“21.
“Trinity Universal Insurance Company, at all times pertinent herein, had in full force and effect a policy of automobile liability insurance insuring Norman J. Naquin and/or Faron J. Naquin against liability for claims of the nature set forth herein.
“22.
“In the alternative, petitioner alleges that the Trinity Universal Insurance Company policy provided coverage for Norman J. Naquin and/or Faron J. Na-quin while using a substitute vehicle and that the vehicle driven by Faron J. Na-quin was such a substitute vehicle.”

Trinity filed an answer (only on its own behalf) which denied basic coverage of the vehicle not described in the policy and further denied that the vehicle qualified as a temporary substitute automobile. Trinity then moved for a summary judgment, attaching the policy and the registration certification on the Chevrolet, but the motion was denied.

Naquin also answered on his own behalf and eventually filed a third party petition against Trinity, demanding indemnification for any judgment and attorney’s fees for Trinity’s failure to provide a defense. Trinity answered the third party demand, denying that it provided coverage or that it was obliged to provide a defense to an uncovered claim.

The trial court, relying on certain language in American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1970), noted the petition’s allegations did not unambiguously exclude coverage and held that if the allegations (especially of Trinity’s coverage) were assumed to be true, there was liability and coverage, so that Trinity was bound to defend the actions regardless of their outcome. The court added (in denying an application for new trial) that the insurer very probably would not have been held liable under the policy if the principal demands had been tried, but that the question of whether there was coverage required a judicial determination, while the question of whether there was an obligation to defend was to be determined solely by reference to the petition.

The cited language in the Czarniecki case merely reiterates the policy’s requirement that an insurer defend against all claims which are payable under the terms of the policy, even if the factual allegations are groundless. Thus, when a petition alleges facts under which there would be liability to the plaintiff and coverage under the policy, the insurer must defend the suit, even if it is highly improbable that the facts alleged in the petition will be proved at trial.

In the Czarniecki case the petition alleged that the driver had the insured’s permission to operate the car. Since the policy provided coverage if that disputed fact were assumed to be true, the court held the insurer was obliged to provide a defense. The Czarniecki decision, however, does not suggest that a conclusion stated in the petition must be assumed to be correct, nor does the decision require the insurer to defend an uncovered claim simply because the petition stated the conclusion that coverage existed.

An insurer’s obligation to provide a defense is determined by reference to the allegations of fact contained in the petition and to the terms of the policy. However, there is a vast difference between allegations of facts and statements of conclusions in pleadings. In the present case there were various allegations of fact in the original petitions, and some would support the stated conclusion that Naquin was negligent. None of the allegations of fact, however, even if true, would support the stated conclusion that there was coverage under the policy.

When all of the factual allegations of the petition are considered in reference to the terms of the policy, it is clear that the policy provided no basic coverage for an owned automobile not described in the policy and that the Chevrolet, being an owned automobile, did not qualify as a temporary substitute automobile. Therefore, the factual allegations of the petition unambiguously excluded coverage under Trinity’s policy, and Trinity was justified in declining to provide indemnity or to defend the claim. Hill v. Liberty Mut. Ins. Co., 357 So.2d 61 (La.App. 4th Cir. 1978), cert. den., La., 359 So.2d 196.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that Naquin’s third party demand against Trinity be dismissed, each party to bear his own costs.

REVERSED AND RENDERED.

      . The cited language in the Czarniecki case reads:
      “Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.
      “Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured”. (Citations omitted)


text:
    Dennis Darby JOY v. Robbie Gannaway JOY.
    No. 10576.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Steven F. Griffith, Sr., Steven F. Griffith, and James M. Callow, Destrehan, for plaintiff-appellant.
    Becnel & Faucheux, Daniel E. Becnel, Jr., and C. William Bradley, Jr., Reserve, for defendant-appellee.
    Before BOUTALL, SCHOTT and HOOD, JJ.
   HOOD, Judge.

Dennis Darby Joy seeks to rescind an act of partition entered into between him and defendant, Robbie Gannaway Joy, on grounds of lesion beyond moiety. The trial court rendered judgment sustaining an exception of res judicata filed by defendant and dismissing this suit. Plaintiff appealed. We reverse and remand.

The issue presented is whether a partition agreement voluntarily entered into by the parties constitutes a “transaction or compromise” which has the force or authority of a thing adjudged and precludes plaintiff from maintaining an action to rescind that agreement on grounds of lesion.

Plaintiff and defendant were judicially separated by a judgment rendered on October 24,1974. Several days later, on November 9, 1974, they voluntarily entered into and executed an agreement which purports to partition the property belonging to the community which formerly existed between them. The agreement is in the form of an authentic act, and it is entitled “Settlement of Community.” It recites that the parties “desire to settle and liquidate the community which formerly existed between them,” and that they have agreed to settle the same in the manner therein set out.

Plaintiff instituted this suit on July 7, 1978, alleging that due to emotional stress he was not aware of the true value of the property conveyed to defendant, that there was a difference in value of the portions received by each of more than one-fourth to the prejudice of plaintiff, and that the latter is entitled to have the partition agreement rescinded on account of lesion. He prays for judgment rescinding that agreement, directing that the property be sold at public auction and ordering a judicial partition of that property.

Defendant filed an exception of res judi-cata, an exception of no cause of action and a plea of estoppel. After a hearing, judgment was rendered by the trial court sustaining the exception of res judicata and dismissing plaintiff’s suit. Plaintiff appealed from that judgment, and that appeal is before us now.

The exception of res judicata filed by defendant contains allegations to the effect that the matter complained of is not a partition, but rather a settlement, compromise or transaction, that under LSA-C.C. art. 3078 the transaction has a force equal to the authority of things adjudged, and that plaintiff thus is precluded from-attacking the partition agreement on account of any error in law or lesion.

Under our law no one can be compelled to hold property with another, and anyone has the right to demand the division of a thing held in common by the action of partition. LSA-C.C. art. 1289. The partition of property may be made either nonjudicially or judicially. It may be voluntary or judicial. LSA-C.C.P. art. 4601; LSA-C.C. art. 1294. Defendant contends that she and her husband chose to divide their property nonjudi-cially for the purpose of preventing a lawsuit (a judicial partition), and that the partition agreement which they entered into voluntarily constitutes a “transaction or compromise,” as those terms are defined in Article 3071 of the Louisiana Civil Code, which provides:

Article 3071: “A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be reduced into writing.”

Defendant argues that in entering into the partition agreement, she relied on LSA-C.C. arts. 3071 and 3078. Article 3078 reads as follows:

Article 3078: “Transactions have, between the interested parties, a force-equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.” (Emphasis added).

The substance of defendant’s argument, therefore, is that the partition agreement which was entered into by her and her husband constituted a “transaction or compromise” for the purpose of preventing a lawsuit, that the transaction has a force equal to the authority of things adjudged, and that the judgment of the trial court sustaining the exception of res judicata thus should be affirmed.

Plaintiff, Mr. Joy, contends that he is entitled to maintain this action to rescind the partition agreement under Articles 1397, 1398 and 1861 of the Louisiana Civil Code. Article 1398 provides:

Article 1398: “They (partitions) may even be rescinded, on account of lesion ; and, as equality is the base of partitions, it suffices to cause the rescission, that such lesion be of more than one-fourth part of the true value of the property.” (Emphasis added).
LSA-C.C. art. 1861 reads as follows:
Article 1861: “The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or (of) the parties;
2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.” (Emphasis added).

We have decided that plaintiff is entitled to maintain this action to rescind the partition agreement under the provisions of LSA-C.C. arts. 1397, 1398, and 1861.

In Williamson v. Amilton, 13 La.Ann. 387 (La.1858), a divorced wife sued her former husband to rescind a partition of community property which had been entered into by them voluntarily, on grounds of lesion. The defendant resisted, as does the defendant in the instant suit, on the ground that the partition agreement was a “transaction or compromise,” and that it thus could not be attacked on the score of lesion. Our Supreme Court held that plaintiff was entitled to maintain the action to rescind on grounds of lesion, primarily under Articles 1435 and 1436 of the Louisiana Civil Code of 1825, which was the code in effect at that time. Articles 1435 and 1436 of the 1825 Civil Code are almost identical to Articles 1397 and 1398 of our present Code. In so holding, the Supreme Court said:

“Here is an evident exception to the rule with regard to the finality of compromises. A partition, even when it takes upon itself the aspect and qualities of a compromise, may be attacked for lesion beyond one-fourth; but the partition once made, if disputes grow out of it, and the parties compromise on those disputes, this compromise is unassailable for lesion.”

A slightly different issue was presented in Cole v. Cole, 357 So.2d 1264 (La.App. 2nd Cir., 1978), but we nevertheless find the decision rendered in that case to be persuasive here. In Cole, the plaintiff husband sought to annul a deed of the family home to his wife on grounds that she had failed to live up to her agreement which represented the consideration for that deed. The trial court rejected his demands for the annulment, based on a finding that there was an adequate consideration. Plaintiff then sued to annul the community property settlement because of lesion beyond moiety, and an exception of res judicata filed by his wife was sustained by the trial court. The Second Circuit Court of Appeal reversed and remanded, holding that the issues presented in the first suit were not the same as those presented in the action to annul the community settlement. In so holding, the Appellate Court cited as authority LSA-C.C. art. 1861; Williamson v. Amilton, supra; and Beatty v. Vining, 147 So.2d 37 (La.App. 2nd Cir., 1962). The court said in Cole that:

“In Williamson v. Amilton, 13 La.Ann. 387 (1858), the divorced wife sued her former husband to annul a community property settlement and partition on the ground of lesion. The court held that the settlement and partition was subject to being attacked for lesion (C.C. arts. 3078, 1398, 1402, 1403).”

In Cortez v. Cortez, 376 So.2d 517 (La. App. 4th Cir., 1979), the husband sued his former wife to rescind a partition agreement relating to community property, on grounds of lesion. The issue presented on appeal was whether prescription of four years (under LSA-C.C. art. 1876) or of five years (under LSA-C.C. art. 1413) applied. We held that Article 1413, providing a prescriptive period of five years, applied largely because that article is included in a section of the Civil Code which deals exclusively with partitions, and with the rescission of partitions, whereas Article 1876 is included in a section of the Code which deals with conventional obligations and with lesion generally. We noted that the section of the Code which includes Article 1876 deals with all of the possible cases of lesion and not particularly with those which relate to partitions. In so holding, we said:

“In support of our conclusion we point out that Article 1413 is located in a chapter dealing exclusively with partitions and particularly Section 7 — Of the Rescission of Partition. The section begins with Article 1397 which provides that partitions may be rescinded for radical vices, and Article 1398, on account of lesion. The next article, 1399, provides for the application of rescission in the cases of minors, interdicts and absentees. The section then discusses the various rights which may be involved and concludes with Articles 1413 and 1414, . . ”
“For the reasons above, we conclude that the intent of the Civil Code is to provide for the five year prescription of Article 1413 for suits for the rescission of partitions based on lesion.”

Louisiana courts generally have upheld the right of a party to maintain an action to rescind a voluntary partition agreement on grounds of lesion. See Pelas v. Wooley, 297 So.2d 546 (La.App. 4th Cir., 1974); Thomas v. Thomas, 63 So.2d 468 (La.App. 4th Cir., 1953); Beatty v. Vining, supra; and Pitre v. Pitre, 162 So.2d 430 (La.App. 3rd Cir., 1964).

Although the basic issue presented in Cortez, supra, is different from that which is before us now, we observe here, as we did in that case, that LSA-C.C. arts. 1397 and 1398, which specifically authorize actions to rescind partitions, are included in a chapter of the Civil Code which deals exclusively with partitions, and with the “Rescission of Partition.” Articles 3071 and 3078 of the Civil Code, being the articles relied on by defendant, are included under a separate title of the Code, entitled “Of Transaction or Compromise.” If a conflict exists between the provisions of Articles 1397 and 1398, on the one hand, and Articles 3071 and 3078, on the other, then we believe that the framers of the Civil Code intended that the first listed articles should be applied in a case such as this, since the instant suit relates to a partition and to the rescission of a partition agreement on grounds of lesion.

When two or more people own property in indivisión, any of them can institute a suit for partition. If we should hold that the partition agreement entered into by the parties to this suit constituted a “transaction or compromise” and that plaintiff is precluded from attacking the partition on grounds of lesion, then to be consistent with that ruling, we may be compelled to hold that every partition agreement, even though it does not relate to community property, must be regarded as a transaction or compromise, entered into for the purpose of preventing a partition suit, and as such is free from attack. Such a holding would render Articles 1397, 1398, and 1861 of the Civil Code of no effect.

We believe that Articles 1397, 1398, and 1861 of the Civil Code, insofar as they relate to the rescission of partitions, provide an exception to the general rule (set out in LSA-C.C. art. 3078) as to the finality or unassailability of transactions or compromises. A partition agreement, even though it may have the qualities of a transaction or compromise, may nevertheless be attacked for lesion beyond one-fourth, as provided in the first cited articles.

Our conclusion is that plaintiff is entitled to maintain an action to rescind the partition agreement which was voluntarily entered into by him and his wife, and that the trial court erred in sustaining the exception of res judicata filed by defendant.

The judgment appealed from, which sustains the exception of res judicata, is hereby reversed, and the case is remanded to the trial court for further proceedings consistent herewith. The costs of this appeal are assessed to defendant-appellee.

REVERSED and REMANDED.


text:
    Santos D. ACOSTA v. Willie DARDAR, Crowder Interest, Inc., Tenneco, Inc., and it’s wholly owned subsidiary, Tenneco Oil Company, Delta Maintenance, Inc. and the International Brotherhood of Boilermakers, Local 37.
    No. 10583.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Writ Refused March 3, 1980.

      Daniel E. Becnel, Jr., and Barry J. Landry, Reserve, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz & Hoffman, J. Michael Johnson, New Orleans, for defendant-appellee, Crowder’ Interest, Inc.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John G. Gomila, Jr., New Orleans, for defendant-appellee, Ten-neeo, Inc.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a summary judgment which dismissed two defendants from this action for damages incurred in a fist fight between plaintiff and Willie Dar-dar, who were co-employees of Delta Maintenance, Inc. at Tenneco, Inc.’s oil refinery. The issue on appeal is whether these defendants, under the facts established in Dardar’s deposition and in an affidavit of a security guard, are entitled to a judgment of dismissal as a matter of law.

The incident occurred while Delta was performing certain contract work for Ten-neco, Inc. Plaintiff and Dardar were members of the same local union which furnished the labor crew for Delta’s job. Plaintiff was the crew foreman, and Dardar had been working as a welder on the job for four days.

According to Dardar, since the job was of short duration with little overtime, he had planned to quit before working 80 hours, because once he reached that point he would lose his place atop the union hall’s list awaiting other job opportunities. On the day of the incident he arrived slightly late for work and found the gate through which his crew usually entered was locked. Since he had already worked about 40 hours, he decided to quit immediately, and he drove home and telephoned the timekeeper on the job, informing her of his decision and requesting her to make out his pay check. He then returned to the refinery, with his wife in the car. He walked through the now-open gate and greeted the guard, who acknowledged his admission into the plant by calling out his name from the list of persons eligible to enter. He then walked directly to Delta’s trailer office, about 20 feet from the gate, and asked the timekeeper about his check. When the timekeeper said the job superintendent was on his way to sign the check, plaintiff (who happened to be in the office) objected to his quitting. They then argued about freedom of choice, and a fight ensued.

Among others, plaintiff sued Crowder Interest, Inc., who provided the security guard service, and Tenneco, who owned and operated the refinery where the incident occurred. These two defendants moved for and were granted a summary judgment.

As to Crowder, plaintiff contends that the guard should not have permitted Dardar to enter the plant. Plaintiff argues a summary judgment is inappropriate because Dardar’s termination slip, dated 5:30 p. m. the day prior to the accident, creates a genuine dispute of material fact, the date of termination being critical to the determination of whether plaintiff was authorized to be on the premises on the day of the incident.

It is undisputed that Dardar entered the premises after notifying his employer he had quit, that his name was still on the list of persons authorized to enter, that he entered for the purpose of picking up his pay check, and that there, was nothing unusual about the manner in which he presented himself at the gate so that the guard should have been alerted as to any problem. The fact that his termination slip is dated the previous day (which was his last day of work) does not create a dispute as to a material fact which might affect the result of this action. Furthermore, plaintiff has not advanced any facts which would indicate the possibility of a causal connection between his injury and some act or omission by any person for whom Crowder is responsible. The uncontroverted facts do not suggest that Dardar should not have been allowed on the premises, or that the guard had a duty to protect plaintiff from personal attack while in Delta’s trailer office, or that the guard breached any other duty owed to plaintiff. The guard’s employer is therefore entitled to a judgment of dismissal as a matter of law.

As to Tenneco, that' defendant sought dismissal on either of two grounds; (1) there is no basis for imposing liability and (2) if there were a basis for imposing liability, it has immunity against plaintiff’s tort claims because it was his “statutory employer” under R.S. 23:1032 and 1061. Since we affirm the dismissal on absence of grounds for Tenneco’s liability, we do not reach the question of whether Tenneco was immune in tort.

Dardar stated he had no contact with any Tenneco personnel on the day of the incident, which occurred entirely within the confines of Delta’s trailer and resulted from an argument with another Delta employee over his right to quit the job with Delta. Thus, it appears Dardar was not Tenneco’s employee or borrowed employee and was not subject to its control. Moreover, the depositions and affidavit reveal no fact-which suggests any other basis for imposing liability on Tenneco for Dardar’s actions.

Plaintiff’s petition alleged Tenneco failed to provide a safe place for its contractor’s employees to work or to provide adequate security. However, once a motion for summary judgment is made and supported by sworn evidence, a party cannot rest on the allegations of its pleadings, but must respond by presenting facts which show a genuine issue for trial.

While questions of negligence are generally inappropriate for disposition by summary judgment, a defendant is entitled to dismissal by means of this procedural vehicle if, after the opposing party has adequate opportunity to develop evidence, the record is completely devoid of any suggested basis for that defendant’s liability. Continental Cas. Co. v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975). This record does not suggest any facts upon which Tenneco could be held legally liable for plaintiff’s injury.

AFFIRMED.

      . The guard’s affidavit states that he knew Dar-dar to be Delta’s employee and had not been notified of Dardar’s termination, that there was nothing unusual about Dardar’s dress or demeanor when he arrived at the gate, and that even if he had known Dardar had quit his job, it was standard procedure to allow a terminated employee onto the plant to pick up his paycheck.

      . We thus need not reach the question of whether the risk created by the guard’s action in allowing Dardar to enter the premises (that was a cause-in-fact of the injury which would not have occurred except for the guard’s action) was encompassed in any duty not to allow terminated employees on the plant, or whether there was an ease of association between any breach of that duty and the injury that occurred.