source: Caselaw Access Project

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text:
    SUCCESSION OF Willard H. KILPATRICK. SUCCESSION OF Willard H. KILPATRICK, Plaintiff-Appellee, v. FIRST NATIONAL BANK OF SHREVEPORT, Defendant-Appellant.
    No. 15026-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.

      Brown, Wicker & Amman by William D. Brown and Frederic C. Amman, Monroe, John L. Landrem, Jr., Lawrence M. Johnson, Shreveport, Whitten & Blake by Leon H. Whitten, Jonesboro, for plaintiffs-appel-lees, Harper Terrill and Arnold R. Kilpa-trick.
    Beard & Sutherland by Frederick H. Sutherland, Soekrider & Bolin by H.F. Sockrider, Jr., Shreveport, for defendant-appellant, First Nat. Bank of Shreveport.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

The First National Bank of Shreveport (hereinafter referred to as the “Bank”) appeals a judgment ordering the homologation of a tableau of distribution in this succession proceeding.

We feel it unnecessary to detail again the entire factual posture of this case other than to point out that it concerns the validity of a bitterly contested nuncupative will by private act executed by Willard Kilpa-trick dated January 16, 1977, which in effect revokes a prior will of September 16, 1976, in which the Bank was named trustee and executor of the bulk of Mr. Kilpatrick’s estate for an educational foundation. The present co-executors’ appointment depends on the validity of the January, 1977 will which was upheld by the lower court and is the subject of another pending appeal before this court, an opinion in that matter being handed down this same date in Succession of Kilpatrick, 422 So.2d 464 (La. App. 2d Cir.1982).

We have previously held that the Bank both as executor and trustee under the 1976 will has a justiciable interest in the action to annul the 1977 will and in having the 1976 will recognized and probated. Succession of Kilpatrick, 356 So.2d 1083 (La.App. 2d Cir.1978).

After the lower court upheld the validity of the will, the following events occurred which are material to this appeal.

On March 1,1982, attorneys for co-executor, Arnold Kilpatrick, prepared and presented to the trial court an ex parte motion for authority to pay certain attorneys’ fees and expenses in the amount of $114,000. The judge signed this order on the same day; however, it was never filed.

On March 16, 1982, Harper Terrill, the other co-executor filed a motion or pleading in the proceedings seeking an order from the trial court authorizing the payment of certain debts and charges, which totaled approximately $580,935.84, and directing that any publication, advertisement or notices required to be made by the Code of Civil Procedure be waived and dispensed with. Included in these debts and charges was the sum of $396,450.85 for attorneys’ fees, estate taxes in the amount of $181,590 and a debt to the Jonesboro Insurance Agency in the amount of $2,894. On the same date, an order was signed by the trial court ordering the Bank to show cause on the 18th day of March, 1982 why the executors should not be authorized to borrow money on behalf of the estate in order to pay the above listed debts and charges and why such charges and debts should not be paid without following the prescribed procedures of notice, service, advertisement and hearing.

On March 18, 1982, the Bank filed an opposition to Terrill’s motion, a motion to stay proceedings, and an alternate motion for continuance. The Bank’s opposition contended among other things that the request for payment of fees, expenses and charges had been filed in derogation of law and failed to comply with the procedures required for the payment of succession debts and charges set forth in La.C.C.P. Art. 3301 et seq.; the portion of the request for attorneys’ fees and other charges sought to be paid from succession funds was not actually owed by the succession; the payment of such fees and expenses could not be made without giving proper notice, advertisement, hearing and specified delays; and both executors had not joined in the filing of the motion as required by La.C.C.P. Art. 3192. It was further contended that the payment of the fees, expenses and charges should not be made pending a determination of the issues on appeal and the making of such payments would improperly dissipate the estate funds which could not later be recovered in the event the case was overturned on appeal. Finally, the bank contended that there were insufficient funds to pay the alleged debts and charges, and the proposal to borrow would encumber the remainder of the estate.

At the hearing on March 18, 1982, the court sustained the opposition of the Bank, finding that the motion failed to comply with the requirements of the Code of Civil Procedure, both executors had not joined in the motion, and there had been no authorized waiver of the notice and advertisement requirements.

Thereafter, on March 24, 1982, both co-executors filed a Petition for Homologation of Tableau of Distribution seeking a judgment of homologation authorizing the payment of the following attorneys’ fees and an appraisal fee:

1) Attorneys’ fees and expenses to Brown, Wicker and Amman $ 87,500
2) Attorneys’ fees and expenses to Larry Johnson 43,750
3) Attorneys’ fees and expenses to John Landrem 43,750
4) Attorneys’ fees and expenses to Whitten and Blake 16,000
5) Appraisal fee to Herman L. Bass 750 TOTAL: $191,750

It is significant to note that where the Motion of March 16, 1982, alleged that there were insufficient funds to pay the debts and charges listed in that motion, the petition of March 24,1982 alleged the existence of sufficient funds to pay the charges therein listed in full. It is even more noteworthy that the pleading filed made no reference to other known outstanding debts and charges, provided no ranking or order of priority of payment and provided no listing of the assets of the succession from which the other known debts and liabilities could be satisfied.

The Bank again filed an Opposition to the Petition for Homologation of Tableau of Distribution, and on April 6,1982, the Court issued an order setting the matter for evi-dentiary hearing on April 13, 1982. This opposition again asserted certain procedural defects and contended that the debts and charges sought to be paid were not actually owed by the succession, should not be paid prior to a final determination of the issues of the case presently on appeal, and that the making of such payments prior to that time would dissipate the estate of funds which would not be recoverable at a later time and would result further in the encumbering of the remainder of the estate.

After the hearing on the opposition, the district court rendered a decision ordering the homologation of the Tableau of Distribution as requested in the petition filed March 24, 1982, as well as an additional charge of $4,219 for insurance premiums due and owing Commercial Union on property belonging to the succession which had not been included prior to the hearing.

Judgment was signed by the trial court on April 15, 1982, and a suspensive appeal was taken from this judgment by the Bank which assigns the following errors of the trial court:

1) In failing to hold that the payment of the attorneys’ fees and expenses should not be made until a final determination on the merits of the will challenge;
2) In failing to hold that at least a substantial portion of the attorneys’ fees and expenses were incurred for the personal benefit of the executors and not for the benefit of the estate;
3) In failing to hold that a portion of the attorneys’ fees and expenses sought to be paid were not for services rendered to the succession of Willard H. Kilpatrick; and
4) In failing to hold that the request for payment of certain attorneys’ fees and expenses were unreasonable and grossly excessive when considered in the context of the time, manner, and purpose for which they were allegedly rendered.

Although not raised by any of the parties to this appeal, we have noted because of our holding on the merits of the validity of the will, whether or not at this point the Bank would continue to have a “justiciable interest” in the filing of this opposition to the judgment at issue. Wé conclude that until such time that a judgment becomes final and determinative of that issue, that the Bank continues to have an interest in the opposition of this judgment of homologation. Because the matter was still pending at the time this appeal was filed and will continue to be pending until a final determination is reached, the Bank has a right of action to contest this judgment, and we will determine the merits of this appeal.

Although we find that the argument of the Bank also has merit for reasons discussed at a later point in this opinion, we reverse the judgment of the trial court upon our finding that the trial court was erroneous in its order homologating the Tableau of Distribution because of its failure to comply with the provisions of La.C. C.P. Art. 3303 which provides:

When a succession representative desires to pay charges or debts of the succession, he shall file a petition for authority and shall include in or annex to the petition a tableau of distribution listing those charges and debts to be paid.
If the funds in his hands are insufficient to pay all the charges and debts in full, the tableau of distribution shall show the total funds available and shall list the proposed payments according to the rank of the privileges and mortgages of the creditors. [Emphasis added.]

In discussing the import of La.C.C.P. Art. 3301 et seq., we note first the preliminary statement of Book VI, Title 3, Chapter 7— Payment of Debts and Charges of Succession:

The Civil Code articles dealing with payment of succession debts are not altogether clear. The system, however, appears to be as follows:
The administrator should pay no debts without court authority (Civil Code Arts. 1063 and 1150), nor should he pay any debts within three months after the succession is opened, with certain exceptions (Civil Code Arts. 1179 and 1189). If the funds are sufficient to pay all the debts, he merely files a petition for authority, annexing a list of the debts. If the estate is insolvent, he presents a tableau of distribution, showing the rank of the various privileges (Civil Code Arts. 1063, 1180, and 1181). Advertisement is required, whether or not" the estate is insolvent (Civil Code Arts. 1064 and 1184), except with respect to certain privileged debts (Civil Code Art. 1189). If no opposition is filed, the petition for authority is homologated and the debts are paid (Civil Code Arts. 1065 and 1185). If an opposition is filed, it is tried summarily (Civil Code Arts. 1066 and 1186), and the judgment is appealable (Civil Code Arts. 1066 and 1187).
For the most part, the system prescribed by the Civil Code is retained in these articles. However, it should be noted that the customary practice, at least in Orleans Parish, is to combine the petition for authority to pay debts with the final account. Technically, a final account should show actual rather than proposed payments by the succession representative and should be filed only after authority has been granted to pay debts, after the debts are paid and the administration is complete. See Succession of Bofen-schen, 29 La.Ann. 711 (1877). This Chapter does not deal with the account, but only with the payment of debts and the procedure therefor. [Emphasis added.]

This explanation is further amplified in 25 TuLL.Rev. at 485 wherein it states:

As explained in the preliminary statement, Articles 3301-3308 retain the basic system as prescribed by the Civil Code articles but clarify it and make a few changes. In regard to debts which should be paid immediately, Article 3302 gives the court broad discretion and does not attempt to enunciate specific examples of such debts. The notice of filing the petition for authority to pay debts and charges need only be published once in the parish where the succession proceedings are pending. Provision is also made for an interested party to petition the court for notice of the filing of a tableau of distribution. Only a suspensive appeal is permitted from a judgment homologat-ing a tableau of distribution and the succession representative is given authority to pay the claims which have been approved and are not in dispute. [Footnotes omitted.]

We admit that the trial court is given broad discretion over debts which it is authorized to order paid immediately and that the Code of Civil Procedure does not attempt to determine the exclusive nature of those debts. However, we conclude that when a succession is insolvent, or the funds on hand are insufficient to pay all the debts and charges in full, the trial court must require that the executors comply strictly with the second paragraph of La.C.C.P. Art. 3303 before it may make a determination of the propriety of the debts which it authorizes paid by court order. We conclude that because the Tableau of Distribution filed in the instant case does not comply with the provisions of this article, that the trial court was clearly wrong in ordering its homologation.

Our review of the record in the posture presented by this appeal reveals that this succession is insolvent and the funds in hand are insufficient to pay all the known debts in full. At the hearing on the opposition, the Bank subpoenaed Sam Donald, the certified public accountant who was the accountant for this succession. When Mr. Donald did not appear at the hearing, the parties entered into the following stipulation:

BY MR. SUTHERLAND,
Of Counsel for Defendant in Rule: We would file then in accordance with that the financial report of January 31, 1982, prepared by Mr. Donald with the stipulation that if this $219,000.00 was paid out there would still be debts of approximately half a million dollars outstanding.
BY THE COURT: All right. Let the stipulation be made and let the document be filed.
sjí sfc sfc if: *
BY THE COURT: Well, for the record, I think Mr. Brown and Mr. Amman will go along with that stipulation. I think Mr. Donald is not here because of some misunderstanding and I think that is the reason he is not here in the first place and they left voluntarily; so, as far as I’m concerned, the stipulation is binding on all of the parties and the documents can be filed. I don’t really see any critical point in the case. If that is the financial statement, that is the financial statement, and I don’t see any problem regarding that...

The Statement of Assets and Liabilities of the estate contained in the report of Mr. Donald indicates that as of January 31, 1982, the assets of the succession were $494,549.75 including $219,391.66 in cash. The stipulation indicates that even if the $219,000 available in cash was paid out that the debts of the succession remaining over and above that amount would be in excess of $500,000. There was no exact figure presented either in the evidence or the stipulation to indicate what the exact amount of the liabilities were and what those debts related to. In short, the other debts, were not listed nor ranked.

Therefore, we conclude that the trial court clearly abused its discretion in ordering these debts paid before it was presented with a complete list of all of the debts then known to the executors and their ranking insofar as privileges and mortgages of the creditors were concerned and the proposed payments in connection therewith. We conclude that before a trial court can order debts paid in a succession which is or may be insolvent, the executors must present a full, complete and final exhibit of the financial condition of the estate known at the time in order for the court to make a determination of whether or not the debts should be paid. See Succession of Ott, 182 La. 850, 162 So. 642 (1935).

We find no justification here for the admitted failure of the executors to include certain claims and to provide the court with a full and complete picture of the financial affairs of this succession. We find certain language in Lobit & Charpentier v. Castille, 14 La.Ann. 779 (Opelousas 1859), which is equally appropriate here:

The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate, is concurrently with the other creditors of the succession. C.P. 987, 1054; C.C. 1168. This implies that an account and tableau of distribution should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in the hands of the administrator. This mode of proceeding is just and equitable. It prevents one creditor from obtaining an undue advantage over the others, in the assets in the hands of the administrator, and ultimately, from enforcing a demand upon the innocent surety of the same.

We further note as persuasive the holding of the court in Succession of Lacroix, 29 La.Ann. 366 (N.O.1877), where the court found that a first provisional account filed by an administrator which contained no list or classification of creditors and no statement of the debts of the succession but a mere marshaling of the proceeds of one asset and the recognition of but one creditor of the succession could not be the basis of a valid judgment. There, the court stated:

... The paper filed as an account could not be made the basis of a judgment. It mentions none of the privileged claims inseparable from the settlement of a succession, the existence of which we are bound to presume. It ignores the claim of the city for over ten thousand dollars, acknowledged by the administrator, and to pay which he provoked the sale of the property — a claim shown to be, in date and in rank, prior to Billgery’s mortgage.
It may be that no expenses were incurred for the last illness, the coffin, the funeral and the grave; but there are law charges, which can not be denied. Were they paid, are they due? If paid, or to be paid, out of what fund? How, when, and by whom have they been or shall they be satisfied? Is the succession solvent or insolvent? If solvent, what is the amount of its assets, and of those assets what has been or may be realized? If insolvent, what are its liabilities, the extent and character of its liabilities? What proportions shall be paid to the creditors? In the account presented there is no list, no classification of debts, no proposed distribution of funds between said creditors.
It is manifest that the judgment which homologates said account may work an irreparable injury to the city, and against the effects of that judgment the city could protect its interest either by an action of nullity or by appeal. That judgment, though erroneous, does exist, may be complied with or executed. As an account, the paper filed by the administrator has no legal existence. It does not even allow a credit of five hundred dollars paid by the administrator to Billgery on the thirtieth of August, 1876. It is not merely irregular and incorrect; it is absolutely incomplete.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is hereby annulled, avoided, and reversed at costs of appellee. [Emphasis added.]

The record and the admissions of counsel themselves make it abundantly clear that certain creditors were simply omitted by choice from the Tableau of Distribution in question. Not only were certain creditors omitted, but the attorneys listed on the Tableau adjusted their fees to provide for partial payment to come within the bounds of the available money to pay such fees. In his testimony, Mr. Whitten admits that the fees were adjusted to amounts which would total less than the money available in the checking account. He testified that there was an agreement reached among the six attorneys for the co-executors to provide for partial payment of attorneys’ fees due and owing out of the available cash and to make arrangements to borrow money to pay the remainder of the debts presently due. Because there were insufficient funds to pay the estate taxes due and owing, the agreement was to pay them later and pay the attorneys first.

To allow such a practice to be upheld would violate the letter, spirit, and intent of the applicable codal provision. To allow co-executors or their attorneys to pick and choose the debts to be paid out of the assets of the succession by paying the debts they prefer to pay first without giving the trial court a true picture of the state of the succession is clearly in violation of La.C.C.P. Art. 3303. We conclude that the situation presented here for our review is exactly the type practice sought to be prohibited by that article.

It is particularly important that strict compliance with La.C.C.P. Art. 3303 be required because a judgment homologating a provisional account and partial payment constitutes res judicata to the claims appearing therefrom. See Succession of Spyker, 159 So. 347, (Orl.App.1935).

All of the known debts of the succession should have been listed and ranked in order that the information available to the court was adequate for it to properly determine whether or not these debts and charges should have been paid. This was not done; therefore, the judgment of the trial court ordering the Tableau of Distribution homol-ogated must be reversed and remanded for further proceedings complying with this procedure.

Because we are remanding this matter for further proceedings, we feel compelled to address generally the other arguments raised by the Bank in this appeal. To say that this cause has been bitterly, actively and completely contested' is an understatement. At each stage of the proceedings, we have been required to rule upon appeals and writ applications. In an attempt to avoid other applications and further attorneys’ fees incurred in connection therewith, we comment as follows.

For the sake of brevity, we conclude that the Bank’s arguments can be addressed by the resolution of one issue; that is, what is the duty and the attendant rights and privileges of an executor serving during the pendency of a will contest?

Although the law does not specifically provide for such duties and obligations, there are certain statutory provisions which are instructive in dealing with this issue.

La.C.C.P. Art. 2122 provides:

A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom.
A judgment rendered on appeal vacating a judgment or order of the trial court appointing a legal representative does not invalidate any of his official acts performed prior to the rendition of the judgment of the appellate court. [Emphasis added.]

La.C.C.P. Art. 2974 provides:

Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal.
The acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal. [Emphasis added.]

Therefore, it is clear that while there may be a suspensive appeal relating to a decision of a trial court insofar as it relates to the validity of a will, there is no suspensive appeal from the appointment or removal of an executor named within that will. During the interim period while the validity of the will is being determined on appeal, the executor or executors so named act provisionally until a final determination on the merits can be made. See Succession of Tyler, 192 La. 365, 188 So. 31 (1939). It is clear that the rationale behind this practice is to protect the succession and to insure that the property of the succession is preserved, safeguarded, and conserved pending the outcome of the appeal rather than holding everything in limbo until the appeal process can be exhausted.

Therefore, we conclude that in a case such as the one presented in this appeal, when the 1977 will was admitted to probate and the Bank suspensively appealed from that probate, contesting its validity, the co-executors assumed the position of “provisional executors.” While there are no statutory provisions for such executors, we construe such provisional executors to occupy identical positions as provisional administrators with their attendant responsibilities and limitations.

The provisional administrator was recognized in the jurisprudence long prior to our present Code of Civil Procedure. See Succession of Roth, 133 So.2d 140 (La.App. 4th Cir.1961) reversed on other grounds 139 So.2d 216 (1962). In Succession of Clark, 30 La.Ann. 801 (La.1878), the court described the office of provisional administrator as an appointee who was a guardian or keeper rather than an administrator.

Thereafter, based on the prior jurisprudential rules, the Code of Civil Procedure provided for the appointment of provisional administrators as follows:

The Court may appoint a provisional administrator of a succession, pending the appointment of an administrator or the confirmation of an executor, when it deems such appointment necessary to preserve, safeguard, and operate the property of the succession. On the application of an interested party, or on its own motion, when such an appointment is deemed necessary, the court may appoint a qualified person as provisional administrator forthwith. [Art. 3111]
A provisional administrator shall furnish security and take the oath of office required by Articles 3152 and 3158, respectively. He shall continue in office until an administrator or executor has been qualified, or until the heirs or legatees have been sent into possession.
Except as otherwise provided by law, a provisional administrator has all of the authority and rights of an administrator, and is subject to the same duties and obligations, in the discharge of his functions, of preserving, safeguarding, and operating the property and business of the succession. [Art. 3112]

A provisional administrator does not have all of the authority and duties of an administrator or executor but has only those appropriate to preserving, safeguarding, and operating the succession property. See Succession of Poynot, 400 So.2d 338 (La.App. 4th Cir.1981) reversed on other grounds 408 So.2d 1170 (1981).

Applying the foregoing principles to the co-executors in this case, we hold that their duties during the pendency of the appeal in connection with this case are limited to those necessary to preserve, safeguard and operate the property of the succession. In other words, the functions of the co-executors are limited to those necessary for the performance of their overriding duty which we see as being to protect and conserve the estate pending a final outcome of the appeal.

The reason why it is imperative that they be so limited in their functions pending an appeal is because a judgment rendered on appeal vacating an order of the trial court appointing or confirming a testamentary appointment of a succession representative does not invalidate any of his official acts performed prior to the rendition of the judgment of the appellate court. La.C.C.P. Art. 2122. Therefore, were we to construe these articles to mean that the co-executors had any broader powers than those necessary to protect and conserve the estate, then the contestation for a permanent appointment might well prove to be a vain and useless exercise in futility because there may be no estate left to administer.

We further conclude that because their duties are restricted to those necessary to preserve and conserve the estate, that only such debts which are necessary to preserve and conserve the estate should have been approved by the court for payment during the pendency of the appeal on the validity of the will. Our review of the record leads us to conclude that the trial court did not apply this standard in rendering its judgment.

In connection with the judgment appealed from, we find no problem with the payment of the insurance premiums on the succession property. The evidence reveals that this sum was past due and owing and certainly necessary for the preservation of and protection of the immovable assets involved. It is conceivable that the appraiser’s fee could also fall within this category; but from the evidence, we are unable to determine exactly what that fee represents.

However, we feel that a more serious problem for consideration is presented by the attorneys’ fees sought to be paid. In connection with this, we note from the evidence that there are substantial sums sought to be paid which are candidly admitted to be attributable to Mrs. Kilpatrick and her succession. Clearly, such sums are not necessary to the preservation and protection of Mr. Kilpatrick’s estate and should not be ordered paid out of his succession’s assets.

Additionally, we note that there are at least six attorneys who are representing the co-executors at this time and that all sought partial payment for services rendered prior to the date of the homologation. We note in our review of the evidence presented in support of these services that many are ambiguous, duplicitous, and questionable at best. We particularly make this observation with regard to expenses incurred in connection with the attempts to promote cancer research allegedly on behalf of obtaining the services of the expert witness from Sloan Kettering. Although we recognize that such efforts may result in great benefit to mankind, we are constrained to conclude that Mr. Kilpatrick’s succession should not be financially responsible for them.

While we do not in this opinion hold that attorneys’ fees cannot be paid by a provisional judgment of homologation, we do hold that such fees paid prior to the final determination of the will contest should be solely limited to those incurred in connection with the preservation and protection of the succession property.

We further point out that a trial court has express and inherent authority to determine whether a particular fee is excessive and that an attorney is subject to disciplinary action if he enters into an agreement for, charges or collects a clearly excessive fee. DR 2-106(A), DR 1-102(A)(1), La.C. P.R., L.R.S., Title 37, West’s LSA Vol. 21A, and cases annotated thereunder.

Accordingly and for the foregoing reasons, the judgment of the trial court homol-ogating the Tableau of Distribution is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. Costs of this appeal and the costs incurred in connection with the homologation of the Tableau of Distribution are assessed against appellees.

JUDGMENT REVERSED and REMANDED.

FRED W. JONES, Jr., J., concurs and assigns written reasons.

FRED W. JONES, Jr., Judge,

concurring.

I agree with the majority’s reversal of the trial court judgment homologating the Tableau of Distribution and remanding the case to the district court. However, for the reasons expressed in my dissent in the companion case of Succession of Kilpatrick, La. App., 422 So.2d 464, handed down on this date, I would instruct the trial judge to disallow the award of any attorney fee for defending the validity of the contested nun-cupative will.

      . Two writ applications were filed and granted in connection with the granting of this suspen-sive appeal.

      . The financial report filed by Donald contained the following Statement of Assets and Liabilities:
      ESTATE OF WILLARD H. KILPATRICK ARNOLD R. KILPATRICK AND HARPER A. TERRILL, CO-EXECUTORS Jonesboro, Louisiana
      STATEMENT OF ASSETS AND LIABILITIES JANUARY 31, 1982
      ASSETS
      Cash in Jackson Parish Bank - Checking account 219,391.66
      Cash on deposit with Jonesboro Federal Savings and Loan Association (Undivided V2 interest in $1,000.00) 500.00
      Notes receivable - Clements Ford 1,041.62
      Miscellaneous assets Undivided one-half interest in household goods 1,000.00
      Undivided one-half interest in Certificate of Equity, Red River Co-op 856.17
      Undivided one-half interest in pickup trucks 2,115.69 3,971.86
      Stocks and bonds Undivided one-half interest in 62 shares - First National Bank - Shreveport 1,178.00
      Undivided one-half interest in 10 shares - Jackson Parish Bank 1,750.00
      Undivided one-half interest in 2 U. S. Savings Bonds 160.00
      Undivided one-half interest in U. S. Savings Bonds
      (18 - $200 denomination and 17 - $500 denomination) 8,811.75
      Undivided one-half interest in Mississippi Chemical Co. 250.00
      Undivided one-half interest in Pinehill Club (V2 of $1,863.88) 931.94 13,081.69
      Real Estate 277,321.25
      Less accumulated depreciation 20,758.33 256,562.92
      TOTAL ASSETS 494,549.75
      LIABILITIES
      Executors fees 11,318.80
      Attorneys fees 268,845.00
      Appraisal fees 10,000.00
      Accountants fees 58,383.84
      Court costs 23,890.17
      Specific requests 4,479.30
      Accounts payable - Estate of Katherine T. Kilpatrick 82,258.15
      TOTAL LIABILITIES 459,175.26
      ASSETS OVER LIABILITIES (ESTATE CORPUS) 35,374.49
      See accountants’ compilation report.

      . The agreement reached by all of the involved attorneys was to seek payment of attorneys’ fees due and owing; however, William D. Brown in his testimony indicated that he preferred that his firm’s fees not be placed in line for payment until after the resolution of the will contest.

      . We do note, however, that if the property insured was community property then only one-half of the sum due was payable from Mr. Kilpatrick’s estate as the other one-half due would be a debt of Mrs. Kilpatrick’s succession.

      . In connection with this, we observe in passing that reasonable attorneys’ fees for the preparation and filing of petitions for authority to grant oil and gas leases and the activities and expenses required in connection therewith would be examples of such authorized interim payments.


author: GARRISON, Judge.

text:
    Isadora Turner, Wife of and Beauregard THOMAS v. Kenneth D. KENTIE and the City of New Orleans.
    No. 12926.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.

      Derbes & Derbes, James G. Derbes, New Orleans, for plaintiffs-appellants.
    Salvador Anzelmo, City Atty., Herman L. Bastían, George R. Simno, III, Deputy City Attys., New Orleans, for defendants-appel-lees.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff damages in the amount of $3,331.20 for lost wages and pain and suffering, as well as granting to her husband $3,907.81 for medical bills, drugs, automobile repairs and ear rental. From that judgment, which we amend and affirm, plaintiff appeals.

Plaintiff was injured on April 1, 1980 when a city dump truck made a turn into plaintiff’s vehicle. Liability is not at issue and plaintiff appeals, seeking to have the amount awarded increased.

The issue before us is whether the trier of fact abused its “much discretion” in awarding general damages. Louisiana Civil Code Article 1934(3) provides in pertinent part:

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

This article was interpreted by the Supreme Court in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (La.1963). Further elaboration on the methodology of appellate review of awards for general damages was provided in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), wherein the Supreme Court reemphasized that before a Court of Appeal can disturb an award made by a trial court the record must clearly reveal that the lower court abused its much discretion in making the award. Furthermore, this award can then be disturbed only to the extent of lowering (or raising) it to the highest (or lowest) point which is reasonably within the trial court’s discretion.

Additional guidance to appellate courts was recently enunciated in Reck v. Stevens, 373 So.2d 498 (La.1979):

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present ease.
“In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco at 341 So.2d 334.” (at 501)

With these established principles in mind we proceed to examine the individual facts and circumstances in the instant case.

The trial court awarded the plaintiff, Mrs. Thomas, $3,000.00 for pain and suffering and $331.20 for loss of earnings while awarding $612.50 for loss of use of automobile, $3,295.31 for medical expenses, auto repair and drugs to plaintiffs husband.

The record reflects that the plaintiff suffered an acute cervical muscular ligamen-tous strain, lumbosacral muscular ligamen-tous strain, and a contusion to the right shoulder as a result of an automobile accident with defendant on April 1, 1980. On said date plaintiff saw Dr. Harry Hoerner who prescribed conservative treatment consisting of muscle relaxants, pain medication and heat applications to her neck and back. He later prescribed physical therapy using a transcutaneous nerve stimulator, which device he had her purchase to help alleviate the pain. At trial Dr. Hoerner, who was qualified as an expert in orthopedic medicine, stated that this accident had aggravated a preexisting injury to the same area of her neck, back and scapula. An EMG conduction study was done on May 13, 1980 showing normal nerve conduction with no sign of muscle or nerve root abnormality. On the date of trial Dr. Hoerner’s diagnosis of plaintiff was that she had a cervical muscular ligamentous strain and possibility of a herniated cervical disc.

Under the guidelines of Reck, supra, we cannot say that the trier of fact abused its “much discretion” in awarding to plaintiff $3,000.00 for pain and suffering.

But in the awarding of special damages we do find that the trier of fact abused its “much discretion,” more specifically, plaintiffs proven claim for special damages for lost wages.

The record reflects that Mrs. Thomas was employed by the New Orleans Health Corporation as a licensed practical nurse on the date of the accident at a rate of $4.14 per hour, based on a 40-hour work week. Thereafter, on October 13, 1980, her wages increased to $5.25 per hour.

At trial plaintiffs supervisor testified that plaintiff had been an efficient and timely employee before the accident. After the accident plaintiff missed 143 days of work before she was terminated on January 31, 1981. Further testimony from her supervisor revealed that a dramatic change was seen in her ability to perform the job after the accident. However, the record reflects that plaintiff had some gynecological surgery, not related to the accident, which necessitated her being absent from work from June 2,1980 to August 15, 1980.

Further corroboration was given by the Director of Personnel. Plaintiff testified that her absences from her job, with the exception of the days missed due to the gynecological surgery, were due to the pain she suffered as a result of the accident. She was forced to wear the nerve stimulator to work to try to relieve the pain. Furthermore, the tingling sensation in her right hand, coupled with the pain, interfered with the performance of her job.

Although Dr. Hoerner advised plaintiff that she should be able to return to work around April 14, 1980, she continued to suffer substantial pain. Thereafter, on May 13, 1980, an EMG nerve conduction study was ordered and was found to be normal. As of May 26, 1980 plaintiff complained of headaches, nausea and increasing neck pain for which Dr. Hoerner continued conservative therapy and use of nerve stimulator. He further advised that if said treatment was to no avail, or if her pain increased to a substantial degree, she should either stay home from work or to cut back on things that seemed to aggravate her condition.

Even though the medical evidence is conflicting as to when she was able to return to work without substantial pain, a careful reading of the entire record satisfies us that her injuries caused her to lose wages clearly in excess of those awarded by the trial court.

The Supreme Court stated in Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (La.1971):

“... A claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim. This may even consist only of the plaintiff’s reasonable testimony if accepted as truthful; of course, the better practice is to introduce corroborating testimony .... ”

Furthermore, this court in Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir.1974) said that awards of damages for a loss of wages up to the date of trial can be calculated mathematically from proof offered and do not fall within the much discretion rule.

Therefore, we find the specially proved special damages of lost wages in the amount of $662.40 to be supported by the evidence.

Upon examination of the record relative to the special damages allowed plaintiff’s husband for loss of use of the automobile, we find that trier of fact abused its much discretion in assessing that award. As this court stated in Holleman v. Viola, 330 So.2d 627 (La.App. 4th Cir.1976) the period of compensatory loss of use of the automobile is the time required to have the damaged auto repaired when due diligence is used. The jurisprudence allows recovery of damages for loss of use of property caused by the negligence of another. The owner’s burden here is to show only that he, himself, exercised proper diligence in repairs.

The record clearly reveals that plaintiff’s car was immediately towed to Gill’s Body Shop for an estimate on repairs. Within three to five days an estimate was made by the City adjuster, parts were ordered and repairs were begun. Plaintiff continually called the repairman to check on parts as well as calling parts dealers himself to try to expedite the repairs. Mr. Gill, the proprietor of the repair shop, testified that he too used due diligence in repairing said auto.

Plaintiff rented an automobile from Avis Rental Cars from April 3 through June 3, 1980, to use for transportation to work while repairs were being made to the vehicle damaged through defendant’s negligence. The City presented no evidence that the car rental was unusual or that the delay in receiving parts was unwarranted.

In the instant case the evidence establishes that plaintiff did all that could reasonably be expected to complete the repairs as expeditiously as possible. Therefore, plaintiff’s husband will be allowed $3,032.34 as special damages for loss of use of the automobile which represents the Avis bill for a car rental.

The final special damage to be considered is the bill for Dr. Jay Sistrunk, plaintiff’s psychiatrist. We find that the record does not show that the trial court erred in refusing to admit certain evidence for the .purpose of establishing expenses claimed as special damage. The trial judge refused to admit this psychiatrist’s bill because plaintiff failed to prove that the psychiatric expenses were related to the accident at issue.

For the reasons discussed the judgment of the district court is amended as follows and, as amended, is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Beauregard Thomas and against defendant, the City of New Orleans, in the following sums:

Medical, auto repairs and drugs as per stipulation $3,295.31
Car rental 3.032.34
TOTAL $6,327.65

with legal interest from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Isado-ra Turner, wife of Beauregard Thomas, and against defendant, the City of New Orleans, in the following sum:

Pain and suffering $3,000.00
Loss of wages 662.40
TOTAL $3,662.40

with legal interest from date of judicial demand, until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each party will bear their own costs herein.

AMENDED AND AFFIRMED.

      . The trial judge awarded $331.20 for lost wages. We find this amount in error. Plaintiff missed the following days as a result of the accident: April 2, 3, 8, 14, 15, 16, 17, 18, 24, 26, 28, 29, May 9[ 12, 13, 14, 15, 16, 17 and 18, for a total of 20 days. During this period of time plaintiff was working a 5-day work week of 40 hours per week at the rate of $4.14 per hour. Accordingly, the proper amount of plaintiff’s lost wages is $662.40, or $4.14/hr. X 40/hr. week = $165.60/week X 4 weeks = $662.40.


text:
    AETNA CASUALTY AND SURETY COMPANY v. Percy J. SAUL, Sr.
    No. 13225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Alma L. Chasez, Metairie, for plaintiff-appellant.
    J. Stuart Douglass, New Orleans, for defendant-appellee.
    Before GARRISON, ISRAEL M. AUGUSTINE, Jr. and CICACCIO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the First City Court dismissing Aetna’s suit against its insured, Percy Saul, to recover the amount of $925.00.

As a result of an October 10, 1978 automobile collision in which Saul was injured when a police car ran a red light, Aetna paid its insured, pursuant to subrogation receipt, $925.00 for property damage to his truck. The damage was appraised at $1,025.00 and Saul had a $100.00 deductible. Saul then sued the City of New Orleans directly. Saul’s attorney states that he sued the City for the $100.00 deductible and Saul’s personal injuries. Saul’s attorney notified Aetna by letter that he had filed suit against the City, but Aetna failed to intervene in the suit to protect its subrogation rights to the $925.00. Additionally, it failed to bring a separate suit against the City for that amount. Saul’s case against the City was settled for $4,273.69.

Aetna then brought the instant action against Saul to collect the $925.00, alleging that the settlement with the City included property damage to the truck already paid by Aetna. At the conclusion of the case, the trial judge dismissed Aetna’s suit.

On appeal Aetna argues that “... the (trial) court erred in finding that appellant’s subrogation right had not been abrogated when Mr. Saul executed the release marked exhibit ‘A’.” We disagree with this specification of error on the ground that the trial judge did not reach this finding, but rather dismissed Aetna’s suit on other grounds.

At trial, Aetna failed to carry its burden of proof. Specifically, it failed to prove that the $4,273.69 City settlement included $925.00 for property damage.

The City settlement was negotiated by Saul’s attorney and an Assistant City Attorney, Ed Harris, and was administered by an outside consulting firm, Crawford & Co., through its employee, W.F. Hinton. At trial, Aetna produced Eileen Barras, the insurance specialist for the City, who brought a copy of the check register. The check register indicated “3423.09” for bodily injury and “850.00” for property damage. Burras admitted, however, that she did not know the terms of the settlement, whether those terms were correctly reflected on the check register, or whether that was a ratio figure arbitrarily imposed by Crawford & Co. for internal administration. She had not spoken to either Hinton or Harris about the settlement or participated in it in any way. In short, Eileen Barras was incapable of testifying as to any of the facts of the settlement based on her own personal knowledge.

In addition, Exhibit “D-2” is plaintiff’s petition filed in Saul’s suit against the City, CDC # 79-7780. Plaintiff’s petition provides as follows:

“VII.
“As a result of the foregoing, petitioner, Percy Saul, sustained severe and painful injuries to his head, neck, back, body and extremities, including, but not limited to an acute strain of the cervical spine; an acute strain of the lumbo-sacral spine, contusion of the left shoulder; contusion of the left chest wall; aggravation of pre-existing arthritic condition; other lumbar and cervical sprains and strains; other sprains and strains; nervous shock and other other injuries to the nerves, nervous system and the psyche and also the aggravation of prior existing conditions;
“VIII.
“As a result of the foregoing, petitioner, Percy Saul, has been caused to suffer severe physical pain and keen mental anguish; he has required extensive medical treatment; he has been caused to be handicapped in all of his activities; he experiences emotional upsets, headaches, backaches, neckaches and other sequelae and has sustained other severe residuals as a result of his injuries which are permanent and may become worse to his damage, itemized as follows:
“1. Past, present and future medical expenses; $ 2,000.00
“2. Past, present and future physical pain and suffering; 25,000.00
"3. Past, present and future mental anguish; 10,000.00
“4. Property damage deductible and depreciation of automohile as a result of the damage to said automobile: 1,000.00
“5. Permanent disability 12.000.00
TOTAL $50,000.00”

(emphasis supplied)

It is apparent to this court that Saul did not sue the City for property damage but only sought recovery for his medicals, pain and suffering, deductible and depreciation. We agree with the holding of the trial judge that the amount received by Saul from the City included only the deductible and personal injuries and that Aetna had no right to recover against Saul.

The trial judge further stated that Aetna allowed its subrogation rights against the City to prescribe by failing to file its own suit or to intervene in Saul’s suit against the City and could not now recover against its own insured. We agree. Aetna had adequate procedural opportunities to assert its claims and failed to do so.

For the reasons discussed the judgment of the district court is affirmed.

AFFIRMED.

      . Exhibit A is the release executed by Mr. Saul pursuant to his settlement with the City, dated June 27, 1979.


author: BARRY, Judge.

text:
    Charmayne BONNET for and on Behalf of her Minor Child Andrew BONNET v. Rhea SLAUGHTER d.b.a. Lad’s and Lassie’s Day Nursery and her and/or its Insurer.
    No. 13171.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.

      John P. Ferrara, New Orleans, for plaintiff-appellee.
    William H. Slaughter, III, New Orleans, for defendant-appellant.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff, Charmayne Bonnet, was awarded $5,018.50 on behalf of her minor child, Andrew Bonnet, for burns he received while under the care of the defendant nursery now appeals.

Mrs. Slaughter, the defendant owner of the nursery and the child’s aunt, testified the nine month old child was wearing a soiled diaper and she decided to bathe him. She turned on hot water, leaving the child standing outside the tub, and moved to reach for clothes, soap and a towel. At that moment the child put his hand under the hot running water, burning his right hand, fingers and arm. Mrs. Slaughter took Andrew to the Hotel Dieu emergency room where he was treated and released. She testified “they cut away the burned skin and they soaked his hand and they applied medicine and bandaged it.” The emergency room form noted at the bottom “Instructions to the Patient: You are to contact ... your doctor, a plastic surgeon within 24 hours for follow up care.” The form indicates a copy was given to Mrs. Slaughter.

That evening, when the child was taken to his mother’s house, Mrs. Slaughter reported the accident and the emergency room treatment to Ms. Bonnet. Apparently, the instruction to take the child to a plastic surgeon within twenty-four hours was not conveyed to Ms. Bonnet, who testified Mrs. Slaughter only told her not to remove the bandage because of infection. Ms. Bonnet took the child back to the hospital that night because he was running a fever, but could get no results as Mrs. Slaughter had registered the child in the emergency room under her name, i.e., as Andrew Slaughter, in order to obtain treatment. After leaving the hospital she telephoned Andrew’s pediatrician, Dr. Joseph Craven, who stated he thought the injury sounded like an ordinary second degree burn from hot water. He ordered a sedative and saw the child the next morning, but upon seeing the burn he felt it was “very severe, it was second degree but it was a deep second degree burn and it was much more than I would have expected over the phone.” The entire right hand and forearm up to the elbow was involved, the fingers were blistered, and Dr. Craven feared some of the burns could be third degree. Dr. Craven immediately contacted Dr. D.D. Delgado, a plastic surgeon, and the child was admitted to the hospital on August 1, 1979 and discharged on August 11, 1979.

Dr. Craven saw the child every day during his hospitalization primarily for a respiratory infection the child developed unrelated to the accident. He described the burn as very painful and noted it was probably more painful to a baby than it would have been to an adult. He testified the child was administered a pain killer or sedative while hospitalized and he opined such an injury would fully heal in “about a month.” As to scarring, Dr. Craven described it as “miniscule” pointing out if you looked closely you could see a “little fine scar and a little looseness of tissue.” Except for this, the skin was well healed and seemed as healthy as normal skin.

Dr. Craven was also of the opinion Andrew would probably experience a fear of water, the hand would be more sensitive to heat because of nerve irritation, and nightmares might occur. Ms. Bonnet did not verify any of these particular symptoms but stated since the accident Andrew had been having “mental problems ... he bites himself.” However, she couldn’t directly attribute this to the accident. She did say because Andrew wasn’t managing well she only worked part-time around Christmas and eventually quit work altogether.

Dr. Delgado’s (the plastic surgeon) report was admitted into evidence. He saw Andrew each day of his hospitalization, except August 10, and for follow-up in his office on August 15, 22, September 9, and 22. The child was not seen again until May 8, 1980 when he was discharged and there was another evaluation on March 23, 1981.

Dr. Delgado’s diagnosis was deep second degree burns of right digits (5) circumfer-entially, right hand dorso/volarly, right wrist and forearm distal/3 circumferentially; second degree, burns of right forearm and elbow; and right upper extremity cel-lulitis.

During the trial the Judge examined the child’s hand and observed the skin on the right hand looked different from the left because it did not have the same coloration and the skin appeared “slightly crinkled.”

Medical bills were stipulated for Dr. Delgado at $705.00 and $13.50 for the hospital.

On appeal defendant contends she was not negligent because the child had not been left alone and he gave no warning or indication he would do what he did. Defendant asserts there is no liability for the sudden acts of a child; rather, one who undertakes supervision of a child has a duty to exercise reasonable care to protect the child from injury. She also argues known characteristics of a child must be taken into account when determining whether a person has exercised reasonable care. Freeman v. Wilcox, 303 So.2d 840 (La.App. 1st Cir.1974) writ denied 307 So.2d 630 (La.1975). Defendant urges she was not inattentive and this was “nothing more than [sic] unfortunate and unforeseen and unavoidable accident.”

Plaintiff properly cites Comeaux v. Commercial Union Insurance Co., 269 S'o.2d 500 (La.App. 4th Cir.1972), which states at pp. 502, 503:

While the law imposes a duty upon the operator of a nursery to exercise the highest degree of care toward the children, he does not thereby become their unconditional insurer against injury. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir.1962). The fulfillment of the obligation owed does not exact individual supervision of each child at all times and places. Bourgeois v. Indemnity Ins. Co. of North America, 60 So.2d 718 (La.App. Orl.1952).

Our brethren in the First Circuit in Freeman, supra, stated at p. 842:

Where a person undertakes the control and supervision of a child, he has the duty to use reasonable care to protect the child from injury. Although such person is not an insurer of the safety of the child, he is required to use reasonable care commensurate with the reasonable foreseeable risk of harm to which the child might be subjected while under his control and supervision. Williams v. Allstate Insurance Company, La.App., 268 So.2d 290 (1972).

Actionable negligence results from the creation of an unreasonable risk of harm. Where it is foreseeable that a small child is exposed to this risk of harm, liability will result when there is a consequent injury because of the creation of the unreasonable risk of harm to the child. Smolinski v. Taulli, 276 So.2d 286 (La.1973).

Findings of negligence are subject to the manifest error standard. Canter v. Koehring Co., 283 So.2d 716 (La.1973). While this defendant was not the insurer of the child’s safety, we feel it was her negligence, the creation of the unreasonable risk of harm, that caused the injuries. We find ample support in the record for the Trial Judge’s determination that defendant’s conduct constituted actionable negligence.

Defendant argues $4,000 for pain and suffering is excessive because the child’s injuries were not severe: the burns were second degree, took only one month to heal, there was no residual injury, emotional upset would clear up in a few weeks, and the plastic surgeon saw the child only five times after discharge.

Plaintiff counters that $4,000 was inadequate. She asserts in determining the award we should consider: emergency room treatment was required; second degree burns; hospitalization for ten days; treatment by the plastic surgeon for over seven weeks post injury; and medical bills (before welfare credit) exceeded $3,000.00.

We are easily satisfied that $4,000 for painful second degree burns on the arm and hand, though for a moderate duration and with miniscule scarring, is reasonable and could be considered conservative.

Defendant also argues that $4,000 for pain and suffering is excessive because of her impecunious condition.

Plaintiff agrees evidence of inability to pay is admissible, but says lack of insurance is insufficient proof and defendant did not produce any evidence of her financial status. Plaintiff points to the record which shows defendant raft a nursery for nearly 20 years with employees, “drove a van to pick up some twenty children or more, and presumably owned or was buying the premises where she lived and operated her business.”

The theory behind the “inability to pay” rule was stated in Cole v. Sherrill, 7 So.2d 205 (La.App. 2d Cir.1942):

It has* never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at. 7 So.2d 211.

Evidence of inability to pay must be proven by those who claim this defense. We find no evidence to establish defendant’s inability to pay.

Finally, defendant maintains $300 for lost wages was improper and excessive because plaintiff testified she was working while on welfare, and suggests it is “improper and perhaps against public policy for a person to collect welfare and then work on the side, and then be able to claim loss of income in a law suit [sic] ...” Plaintiff answers her work was not permanent and the day of the accident was her first day on the job as a waitress. She testified she had to stay with the child 24 hours a day while he was hospitalized and missed work for approximately three weeks. She would have earned approximately $4/hour, working between 30 and 40 hours a week and the Trial Judge awarded $300 in lost wages. She produced no income tax returns or receipts from Houlihan’s. She also testified because of Andrew she started working part-time around Christmas and eventually stopped working.

Plaintiff’s uncontradicted testimony as to her lost wages is sufficient if credible and reasonably establishes her claim. Income tax returns and further corroborating evidence, though preferred, are not necessary. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

The Trial Judge could have factually concluded that plaintiff was on welfare only during the period she had to stay with Andrew. If so, under the “collateral source” rule, no credit should be allowed for welfare payments. Hall v. State Dept. of Hwys., 213 So.2d 169 (La.App. 3rd Cir.) writ refused, 252 La. 959, 215 So.2d 128 (1968).

We find no abuse of discretion as to any damages. Reck v. Stevens, 373 So.2d 498 (La.1979).

The judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Sharon HESS v. Julien PEMBO d.b.a. Pembo and Associates.
    No. 13244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.

      Clement F. Perschall, Jr., New Orleans, for plaintiff-appellant.
    Michael A. Britt, Leon A. Crist, New Orleans, for defendant-appellee.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff sued her former employer, Pem-bo and Associates, for unpaid commissions, as well as penalties and attorney’s fees, allegedly due under LSA-R.S. 23:632 within three days after she quit work. The trial court awarded plaintiff $1,629.69 in commissions, denied her claim for penalties, and awarded $350.00 attorney’s fees. Plaintiff appeals the amount of commissions awarded, the denial of penalties, and the amount of attorney’s fees.

I. CALCULATION OF THE AMOUNT DUE PLAINTIFF FOR UNPAID COMMISSIONS

Plaintiff worked as a personnel counselor with defendant’s employment agency from 1979 through July 17, 1980. Her job entailed the placement of applicants for which she received commissions in accordance with the agency’s procedures, based upon the placed employee’s salary and various other factors. At trial, plaintiff introduced evidence regarding commissions for certain placements made during the months preceding her voluntary termination of employment. None of those commissions had been paid at the time of trial, and several (not all) of the claimed amounts were contested by defendant. The discrepancy between plaintiff’s and defendant’s accountings of the amount due derives from a fact controversy concerning the parties’ agreements as to the commissions applicable to certain placements by plaintiff.

Plaintiff and defendant were the only witnesses at trial. Both testified plaintiff did not sign a written employment contract, but that she was furnished a booklet describing the agency’s procedures and policies as to the percentages and terms of placement commissions, draws and other consultant benefits. Plaintiff and defendant agreed that the commission scale and other benefits were explained to her in some detail, either by defendant or by the office manager, at the commencement of her employment and on subsequent occasions.

The first disputed commission involves plaintiff’s placement of an employee with Latter & Blum, a regular client of defendant’s employment agency. The applicant placed by plaintiff replaced another employee who had quit her job shortly after being placed by a different counselor from defendant’s agency. Latter & Blum had already been invoiced for and made partial payment of the agency’s fee for the former employee, and was given a credit for that amount toward the placement fee of the new employee. Defendant Pembo, owner of the agency, testified plaintiff had specifically agreed to accept a commission for the replacement employee based on only the additional amount billed to that client, which was $504.00. Plaintiff testified that, although she was aware that Latter & Blum had been billed for $504.00 and was to receive a $720.00 credit towards the new employee’s fee, she expected her commission to be based on the amount previously billed plus the additional $504.00.

After reviewing the invoices and accounting ledger and observing both witnesses, the Trial Judge said, and we agree, that plaintiff accepted a reduced commission:

... the court believes that plaintiff was aware of a previous credit due on the account and took over the account subject to the credit. The amount actually billed to Latter and Blum was $540.00 [sic], not $1,012.00. The court further believes that had there been any intention on the part of the defendant to pay plaintiff for the full amount of the placement, some notation would have [sic] made on the records, but this was not done. Based on the lack of any written evidence and the testimony of the defendant, this court believes that a commission was to be earned only on the sum of $540.00 [sic].

Plaintiff also questions a deduction of $312.00 which had initially been credited to plaintiff upon her placement of an applicant with Central Savings & Loan, but was deducted from her account when the employee left and the customer was credited for the fuh fee. Plaintiff testified she was unaware of a “charge-back” policy upon a placed employee’s voluntary termination. Defendant stated he recalled discussing the agency’s charge-back policy within the first few weeks of plaintiff’s employment when he reviewed the employment contract with her. Defendant further testified both his wife and office manager also “most probably” reviewed this procedure with plaintiff. Defendant explained that when a counselor works with an established customer of the agency and a placement terminates, the same counselor would generally procure a replacement employee and would thus not lose the fee. The trial court chose to believe defendant’s testimony regarding plaintiff’s knowledge of and acquiescence in the charge-back policy, and we find no error in that fact-finding.

Plaintiff also argues that defendant’s “charge-back” policy is unenforceable as a matter of law because it is arbitrary, indefinite and ambiguous and plaintiff could not have freely consented as a term of her employment.

According to the testimony of both parties, each agency client had a “guaranty period” of from 30-90 days during which it received an automatic refund or credit if a placed employee left; defendant testified that, when he felt it was necessary to retain a valued client, he authorized such credits (with corresponding commission deductions) several months after the set guaranty period had elapsed. Since we have found plaintiff was aware of this “charge-back” policy, and it appears during her employment plaintiff also had an interest in maintaining good relations with clients, the policy in question is not so arbitrary or ambiguous as to be deemed a legal nullity.

The final disputed item regarding plaintiffs commissions involves a deduction of a 10% “house fee” by defendant in connection with plaintiff’s placement of an employee at DePaul Hospital. According to defendant, such “house fees” were part of the agency’s established commission structure for placements which resulted from yellow pages advertising by the agency or on which “the job order is an account of the company when it’s given to [an employment counselor].” Defendant testified that the various “house” and referral fees were thoroughly explained to plaintiff when she began working for defendant. Although plaintiff testified she was unaware of any commission structure other than the straight sliding scale commission for each quarter, the ledgers and invoices in the record indicate plaintiff was familiar with and participated in split commissions and referral fees on several accounts during her employment. The trial court’s finding on this factual dispute is entitled to great weight and will not be disturbed.

The other commission items awarded by the court were not challenged by either party on appeal. In fact, the amount awarded by the trial court was the exact amount defendant conceded at trial he owed plaintiff.

Accordingly, we affirm the lower court’s judgment awarding plaintiff $1,629.69 in commissions from defendant.

II. RECOVERY OF PENALTIES UNDER LSA-R.S. 23:632

Plaintiff’s second specification of error is that the trial court erred in denying penalties under LSA-R.S. 23:632:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

That statute must be read in conjunction with 23:631, which provides:

A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of. the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment ....
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.

The undisputed evidence established plaintiff was paid a monthly guaranteed “draw” of $750.00, which was credited against commissions payable each month. The commissions were computed on a sliding scale, with the percentage increasing with each billing of $6,000 within a given quarter. The commissions were not paid until the “guaranty period” of from 30 to 90 days, depending upon the client, had expired.

Plaintiff left defendant’s employment agency, without notice, on 7/17/80. The next day, she telephoned defendant and demanded immediate payment of all commissions owed her. Defendant responded that he would send her a check 60 days after the last guaranty period for the commissions due her had elapsed. Plaintiff made another demand a week later, and defendant reiterated his intention of withholding all payments until 60 days after the expiration of the last applicable guaranty period. Plaintiff’s counsel sent defendant a letter on 8/27/80 which demanded over $5,000 in commissions, penalties and attorney’s fees. Defendant made no tender of any payments following the demand letter, and plaintiff filed this suit on 10/2/80. At trial on January 12, 1982, defendant had still not paid plaintiff any of the commissions due her, nor had he deposited any sums in the court registry.

Defendant testified when plaintiff left his employment on July 17, 1980, “8 out of 9” guaranty periods were still open. Defendant conceded that the guaranty period for at least one placement, at Century National Bank, had expired on July 9, 1980, before plaintiff left his employment. Defendant also admitted that the latest guaranty period among all those in dispute would have been December, 1980, that he would have waited an additional 60 days thereafter before making any payments to plaintiff, and that he made no attempt to pay plaintiff even the uncontested commissions at that time because the matter was already in litigation. The record does indicate that, on several occasions after suit was filed, defendant made offers to “settle” the matter for $1,229.25, but acceptance of such an offer was conditioned on plaintiff’s release of all further claims against defendant.

The trial court ruled that, because there was a genuine dispute as to several of the commissions sought, defendant’s refusal to pay plaintiff’s commissions was not arbitrary or capricious, and thus no penalties were due. We reverse, finding that a legitimate dispute as to some of the commissions due plaintiff did not excuse defendant’s failure “to pay the undisputed portion of the amount due as provided in Subsection A of [LSA-R.S. 23:631],” subject to the sanctions mandated by 23:632.

Defendant concedes that the term “wages,” as used in LSA-R.S. 23:631, includes commission payments due to an employee in plaintiff’s position. Stell v. L.V. Caylor, 223 So.2d 423 (La.App. 3rd Cir.1969); Agnelly v. Lauricella, 383 So.2d 813 (La.App. 4th Cir.1980); Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir.1975); Nolfo v. Landeche, 339 So.2d 1331 (La.App. 1st Cir.1976). Defendant contends, however, that the dispute concerning several of the claimed commissions, and the fact that most of the guaranty periods had not expired at the time of plaintiff’s demand, constitute “equitable justification” for defendant’s failure to make payments within the statutory 3-day period.

This court recognizes that certain “equitable justifications,” such as set-offs or debts owed the employer by the employee, will defeat the imposition of such statutory penalties. None of the cited cases, however, involved a situation like the instant case, in which an employer conceded that he owed certain commissions to a former employee at the time she left his employment, admitted that he owed additional commissions payable within a few months thereafter, and yet refused to make any payments to the employee for over a year after all uncontested commissions were due.

Defendant argues that his settlement offers, during the course of the litigation, establish his good faith and reasonable behavior. Our jurisprudence holds, however, that in order to avoid the statutory penalties, an employer’s tender of wages must be unconditional, and cannot be contingent upon the employee’s execution of a release or compromise settlement. Rush v. Ryan Chevrolet, 408 So.2d 984 (La.App. 2d Cir.1981); Duhon v. Prof. Erny’s Music Co., Inc., 328 So.2d 788 (La.App. 3d Cir.1976). Thus, we find as a matter of law defendant’s refusal to pay plaintiff any of the commissions due her constituted bad faith and subjects defendant to the penalties provided in LSA-R.S. 23:632. As plaintiff’s “wages” were her placement commissions, which fluctuated monthly, we fix the penalties at three months of plaintiff’s guaranteed minimum salary or draw, for a total of $2,250.00.

III. REASONABLENESS OF THE ATTORNEY’S FEE AWARDED

Under LSA-R.S. 23:632, the court shall award “(Reasonable attorney fees ... in the event a well-founded suit for any unpaid wages whatsoever be filed ... by the employee after three days shall have elapsed from time of making the first demand following discharge or resignation.” This suit was “well-founded” and plaintiff has recovered $3,879.69, exclusive of costs and attorney’s fees.

The lower court awarded plaintiff only $350 in attorney’s fees. While the trial court is afforded great discretion in fixing such awards, we feel the award was grossly inadequate in view of the time spent by plaintiff’s attorney in preparing and trying this case, the results obtained, the amounts awarded in similar cases, and the purpose of the statute to encourage workers to sue for unpaid wages and to motivate attorneys to prosecute such suits.

Plaintiff’s attorney introduced his time records reflecting over 60 hours of work in connection with this case. In addition to the hours spent in preparation of pleadings, discovery, review of invoices and accounting sheets, and conferences, plaintiff’s counsel expended a great deal of time in procuring the appointment of a special process server and, ultimately, a curator ad hoc to accept service on defendant, who purposely evaded service. It is evident from his handling of the trial in this case and the quality of his appellate brief that plaintiff’s attorney employed a great amount of skill and effort in the preparation for trial and in this appeal.

A survey of recent attorney’s fee awards involving similar amounts shows that in Pace v. Parker Drilling Co. & Subsidiaries, 382 So.2d 988 (La.App. 1st Cir.1980), plaintiff was awarded $1,500.00 attorney’s fees for the recovery of $1,177.60 in unpaid wages. In Franco v. Kar Products, Inc., 409 So.2d 1238 (La.App. 4th Cir.1982) this Court awarded $30,000 attorney’s fees in connection with a $90,000 award of past-due wages. The Third Circuit assessed $750.00 attorney’s fees against an employer who was cast for only $490.36 in overdue wages and fees in Powell v. Flotation Services, Inc., 413 So.2d 276 (La.App. 3d Cir.1982). In Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978) an attorney’s fee of $750.00 was awarded in connection with the recovery of a mere $161.93 in past-due wages. Defendant points to this Court’s award of $350.00 attorney’s fees in Rubenstein Bros. v. LaForte, supra. We note, however, that that decision involved only $188.40 in unpaid wages and was rendered over seven years ago. In Agnelly v. Lauri-cella, supra, cited by defendant for the “sound discretion” of the trial court to fix attorney’s fees, this court awarded $2,150.00 in attorney’s fees for recovery of $7,352.29 in unpaid commissions.

We believe the Trial Judge’s low award was influenced by his finding that defendant was not in bad faith and did not owe statutory penalties. The colloquy between the Trial Judge and counsel concerning the hours spent by plaintiff’s attorney before commission guaranty periods had expired suggests the Trial Judge may have disregarded or discounted the hours spent by plaintiff’s attorney prior to December, 1980, when the last guaranty period elapsed. As we have found plaintiff was owed some commissions at the time she left defendant’s agency, and defendant was in violation of the statute from the time of plaintiff’s initial demand, a proper measure of plaintiff’s attorney’s fees should reflect the total amount of time spent by her attorney on this case. We find that an award of $750.00 for pretrial and trial work, and an additional $750.00 for preparation and argument on appeal is appropriate.

Accordingly, for the foregoing reasons, the judgment of the district court awarding plaintiff $1,629.69 in commissions is affirmed. That portion of the judgment awarding plaintiff $350.00 attorney’s fees is hereby amended and the award is increased to $1,500.00. That portion of the judgment denying plaintiff penalties under LSA-R.S. 23:632 is reversed and set aside and judgment is hereby rendered in plaintiff’s favor and against defendant in the amount of $2,250.00 for statutory penalties. Defendant to pay all costs.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART.


text:
    In re Lynn B. DEAN.
    No. 13257.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.

      Roy A. Raspanti, New Orleans, for plaintiff-appellant.
    Manuel A. Fernandez, Daniel L. Dysart, Chalmette, for exceptors-appellees.
    Before BARRY, LOBRANO and WILLIAMS, JJ.
   BARRY, Judge.

Petitioner Lynn Dean, a member of the St. Bernard Parish School Board, filed a “Petition for Perpetuation of Testimony” seeking a court order to allow him to take depositions of eight fellow members of the School Board, in conjunction with his intent to file an action for malicious prosecution. The Board members opposed the petition, filed an exception of no cause or right of action, and moved for attorney’s fees. After a hearing the district court dismissed the petition and awarded attorney’s fees of $500 to exceptors. Dean appeals only the award of attorney’s fees.

Dean’s argument is that attorney’s fees may not be awarded in Louisiana unless authorized by a particular statute or provided by contract between the parties. He contends neither the School Board members nor the court cited any statute upon which an award of attorney’s fees could be premised. In their brief the School Board members cite LSA-R.S. 42:261(E) as authority for the imposition of attorney’s fees. Dean did not file a supplemental brief or address the applicability of that statute to this case.

It is settled that attorney’s fees may not be taxed to an adverse party, absent a specific statutory or contractual provision authorizing such an award. Federal National Mortgage Association v. Roberts, 317 So.2d 244 (La.App. 4th Cir.1975); Roberie v. Sinclair Refining Company, 252 So.2d 488 (La.App.3d Cir.1971); Lloyd v. Merit Loan Company of Shreveport Inc., 253 So.2d 117 (La.App.3d Cir.1971); Bryan v. Ivey, 114 So.2d 88 (La.App. 1st Cir.1959).

The propriety of the lower court’s award of attorney’s fees depends upon the applicability of these facts within the ambit of LSA-R.S. 42:261(E).

The statute appears in Chapter 5 of the Revised Statutes, which governs “Public Officers and Employees—Duties,” and is obviously intended to protect public officials from frivolous lawsuits. It provides:

E. Any party who files suit against any duly elected or appointed public official of this state or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those casks where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.

An award of attorney’s fees under the statute, therefore, requires a finding that:

(1) Dean’s “Petition for the Perpetuation of Testimony” is a “lawsuit”;
(2) The School Board members are “duly elected or appointed public official(s) of this state or any of its agencies or political subdivisions ... ”;
(3) This “is a matter arising out of the performance of the duties of” the School Board members’ offices;
(4) The subject matter does not involve taxes or voters;
(5) Dean was unsuccessful in Ms suit; and
(6) The School Board members incurred such attorney’s fees “in the defense of said lawsuit.”

(1)Dean argues his petition to take testimony was not a lawsuit, but merely a pre-suit procedure instituted under LSA-C.C.P. Art. 1429. That article was patterned after Fed.R.Civ.P. 27, and is intended to allow pre-suit depositions, upon a showing of good cause, when necessary to prevent injustice. Vaughn v. Commercial Union Ins. Co. of N.Y., 263 So.2d 50 (La.App. 4th Cir.), writ refused, 262 La. 1107, 266 So.2d 425 (1972) Article 1429 provides:

A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
(1) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
(2) The subject matter of the expected action and his interest therein.
(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
(5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

As with an ordinary lawsuit, LSA-C.C.P. Art. 1430 mandates service of the petition and notice of hearing upon each “expected adverse party.” Article 1430 further provides that, if such service cannot be effected, the court may order service by publication, and “shall appoint, for persons not served in the manner provided in Article 1314, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent .... ” Thus, the Code affords “expected adverse parties” the same procedural safeguards, and anticipates the same opportunity and necessity for counsel, at such pre-suit proceedings as are provided for defendants in ordinary lawsuits.

Our present Code of Civil Procedure does not specifically define a “lawsuit”; however, under the 1870 Code of Practice, Article 96, a “suit” was defined as “a demand, made before a competent judge.” The court in Sims v. Sims, 247 So.2d 602 (La.App.3d Cir.1971) discussed the meaning of a “suit,” opining:

As used in Article 531 [re lis pendens], a “suit” is the same as a “Civil Action.” LSA-C.C.P. Art. 421 ... defines a “Civil Action” as a demand for the enforcement of a legal right which is commenced by the filing of a pleading. 247 So.2d at 604.

Despite the fact that the proceeding is captioned “In Re: Lynn B. Dean” and the School Board members were not named defendants, Dean’s petition is a “demand for the enforcement of a legal right” and, thus, a “suit.” The Code seems to treat “expected adverse parties” as ordinary litigants, so that Dean’s action would be deemed a “suit against” the named School Board members.

(2) It is clear to us that elected school board members are “public officials” under LSA-R.S. 42:261(E). In Prentice v. McGowen, 346 So.2d 1361 (La.App.3d Cir.1977), a public school principal was held a “public official” under that same provision. A member of the Natchitoches Parish Police Jury was found a “public official” under that statute in Foshee v. Longino, 236 So.2d 870 (La.App.3d Cir.1970). Even police officers are considered “public officials” under 42:261(E), Houston v. Brown, 292 So.2d 911 (La.App.2d Cir.1974); Jones v. Anderson, 277 So.2d 697 (La.App.2d Cir.1973).

(3) A more difficult question is whether Dean’s action is a “matter arising out of the performance of the duties of ... office” of the School Board members.

We find no reported decisions applying the penalty provisions of 42:261(E) to a pre-suit proceeding to take testimony. Cases awarding attorney’s fees have each involved a cause of action against a defendant-public official which rather obviously arose in the course of the defendant’s status as a public official. Suits alleging “police brutality” or assault and battery on an ar-restee have been held to “arise out of” the defendant-policeman’s performance of the duties of his office. Houston v. Brown, supra; Jones v. Anderson, supra. In Prentice v. McGowen, supra, a teacher sued her school principal for defamation, alleging he had made untrue representations to the school board, the school superintendent, and other school personnel as to her professional competence. The teacher’s action was held to arise from the performance of the principal’s official duties under 42:261(E).

Dean’s petition alleges, “The subject matter of the expected action is the malicious prosecution of petitioner under LSA-R.S. 18:1463(B).” The cited provision is a criminal statute on election offenses which pro-. Mbits the distribution of any document “which falsely alleges that any candidates ... are supported by or affiliated with another candidate, group of candidates, or other person, or a political faction.” Dean’s petition avers that he was arrested and charged under 18:1463(B), based on affidavits maliciously filed with a Justice of the Peace. The petition does not specify which of the School Board members filed the affidavits, but candidly admits Dean hopes to identify the particular affiants by deposing the eight named School Board members, several of whom he expects to be defendants in his malicious prosecution action.

The particulars leading up to this proceeding are not set forth in the record. Appellees assert:

The reasons underlying the bringing of the initial legal action against appellees are undeniably and inextricably tied to matters arising out of the performance of their duties as school board members. Certainly, had the appellees not been members of the St. Bernard Parish School Board, they would not have possessed the requisite association with his [sic] matter so as to have been called as parties to this legal action.

Dean, apparently unaware of the possible application of 42:261(E), does not address the origin of his action. It seems Dean was charged with circulating a document endorsing a judicial candidate on stationery which bore the logo and names of each of the St. Bernard School Board members, but no such details appear of record. If those facts were part of the record, the School Board members would have a solid argument that the “arising out of” requirement was fulfilled. Absent such details, the Board members rely on the general contention that Dean would not have sought to depose them or name them as “expected adverse parties” if they were not School Board members. Another argument would be that, as School Board members, excep-tors had a duty to the public to disclose the suspected election fraud of one of their members and that filing such an affidavit was incumbent on them in their official capacity.

We are satisfied that though a close question, Dean’s petition alleges sufficient facts to fulfill the “arising out of” provision.

(4) This matter does not involve the collection and payment of taxes nor the registration of voters.

(5) Since Dean’s petition was dismissed and his request to take depositions denied, he was certainly “unsuccessful in his demands” within the meaning of the statute.

(6) As to the requirement that attorney’s fees must actually be incurred “in the defense of said lawsuits,” testimony shows six of the Board members agreed to pay their attorney $200 each. The court found $500 was adequate compensation for counsel’s preparation of opposing pleadings and his court appearance. Since we consider this matter as a “suit” under (1) above, it follows that the award to the “expected adverse parties” was incurred “in the defense of said lawsuit.”

For the foregoing reasons the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


author: AUGUSTINE, Judge.

text:
    Donald P. LANDRY, Sr. v. John THOMAS.
    No. 13072.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 1982.
    Rehearing Denied Dec. 21, 1982.
    Edward A. Kunz, New Orleans, for plaintiff-appellee.
    Julian J. Rodrigue, Covington, for defendant-appellee.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Plaintiff, Donald P. Landry, appeals the order of dismissal entered by the trial court in favor of the defendant, John Thomas. The dismissal was granted on the authority of Louisiana Code of Civil Procedure Art. 561, which provides:

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

The trial court record reveals the following to have taken place:

On June 15, 1974 plaintiff filed an action for damages arising out of a shooting incident which allegedly involved the defendant Thomas. The defendant was not served with process until more than five years later, on June 21, 1979. At that time, defendant received, together with the citation and petition, a copy of plaintiff’s “Motion to Take Deposition of Defendant”, which had been filed by the plaintiff on June 14,1979, within the five-year period provided by Art. 561. On November 14, 1979, defendant filed a motion to dismiss on the grounds of abandonment, which motion was granted the same day.

The question for our decision is whether plaintiff’s formal motion to depose the defendant, filed within the five-year period provided by Art. 561 but not served upon the defendant until after the lapse of five years, is sufficient to interrupt prescription.

The plaintiff urges us to follow the rule of King v. American Motorist Insurance Co., 295 So.2d 26 (La.App. 4th Cir.1974). In King, the plaintiffs petition for damages was filed on December 5, 1966, but service was not effected on the defendants at that time. Three days before the expiration of the five year period, on December 2, 1971, the plaintiff filed an amended petition, alleging that one of the defendants had died and that his estate should be liable in his stead. The defendants did not receive service of the original and the amended petition until five years and one day after the filing of the original petition. The issue presented was thus identical to that which confronts us today. We then reasoned that, “it is not simply any failure to serve process that eliminates the interruption of the prescriptive period, but only such failure as to constitute abandonment as defined in C.C.P. Article 561.” Id at 28.

In deciding that the plaintiff should prevail, we emphasized that the plaintiff’s written request for service of process upon the defendant, filed into the record together with the amended petition within the five-year period, constituted a “formal move before the court intended to hasten judgment.” Id. at 28, citing Lips v. Royal Ins. Co., 149 La. 359, 89 So. 213 (1921). Emphasis added.

The defendant-appellee contends that the dismissal in this case was proper, based upon the rule established in Murphy v. Hurdle Planning and Livestock, Inc., 331 So.2d 566 (La.App. 1st Cir.1976). There a plaintiff filed an action for personal injury and property damages against two defendants, only one of whom was served with the petition. Before five years had elapsed, the plaintiff filed a motion to set the case for trial, but service was not effected as to the previously unserved defendant until after the five year period. The court held that the plaintiff’s motion was ineffective to interrupt the prescription of Art. 561, stating that:

“The five years required to constitute abandonment begins to accrue at the time of filing, not when citation is made, and any steps taken to ‘hasten the matter to judgment’ are ineffective as to defendants not served. Bolden v. Brazile, 172 So.2d 304 (La.App. 4th Cir.1965) and McClure v. A. Wilbert’s Sons Lumber & Shingle Co., 232 So.2d 879 (La.App. 1st Cir.1970).” Citations added. Id at 568.

In our opinion, the rule announced in Murphy does not necessarily follow from the principles established in Bolden and McClure, supra, upon which the court relied for its decision. In each of those cases, more than five years had elapsed between the filing of suit and service of process upon the defendants. In the interim, the plaintiff had taken no formal steps whatsoever to move the case toward judgment against the unserved defendants. In each case, it was held correctly that under those circumstances, the plaintiff must be regarded as having abandoned his case as to those defendants. From such a holding, it does not follow ineluctably that “any steps taken to ‘hasten the matter to judgment’ are ineffective as to defendants not served.” Murphy, supra, at 568. Bolden and McClure merely stand for the proposition that when more than five years pass between one formal step in the prosecution and the next, the case shall be considered abandoned. In neither case was the failure to effect service the dispositive element; that fact was purely incidental to the plaintiff’s failure to file any formal motion whatsoever (against the abandoned defendants).

We therefore reaffirm the reasoning and holding of King v. American Motorist Inc., supra. To do otherwise would be to impose abandonment where there is none in fact, a result which would defeat the purpose and plain meaning of Art. 561.

In the present case, the record reveals that within the five-year period, Donald P. Landry filed a “Motion to Take Deposition of Defendant”, with an attached order which was signed by the trial judge on the same day. The motion and order were accompanied by a request for service upon the defendant in Covington, Louisiana.

King regards that action as a “formal move before the court intended to hasten judgment.” The suit, therefore, should not have been found to be abandoned. For the reasons assigned, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.