author: COLE, Judge.

text:
    Walter YOUNG v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY, et al.
    No. 82 CA 0026.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied March 18, 1983.

      Byard Edwards, Jr., Ponchatoula, and Paul Billingsley, Hammond, for plaintiffs.
    Iddo Pittman and Alton Lewis, Jr., Hammond, for defendant-appellant State Farm.
    James Moore, Baton Rouge, for defendant, John Garcia.
    Bernard Smith, Covington, for interve-nor.
    Before COLE, WATKINS and ELLIS, JJ.
   COLE, Judge.

The major substantive issues in this complicated suit on a fire insurance policy are whether or not plaintiff, Walter Young, had an insurable interest in the insured property, and whether or not defendant, State Farm Fire & Casualty, proved Walter Young committed arson.

PRELIMINARY FACTS

In 1971 Robert Young purchased a tract of land on Lee Hughes Road, north of Baptist, Louisiana. In 1973 or 1974, his father, Walter Young, commenced constructing a house for Robert on this tract of land. Early in 1976, when the house was near completion, Robert indicated to his father he had changed his mind about wanting to live in the new house. Instead, he preferred to continue living in a small house on Highway 51 in order to be near his grandmother. Walter agreed to purchase the house from Robert and various transactions were executed to that effect. In early 1977 Walter and two male friends moved into the house. The written act of sale was executed on March 25, 1977, and the house was completely destroyed by fire on April 17, 1977.

PROCEDURE

Walter Young filed suit to recover proceeds from a fire insurance policy issued by defendant State Farm Fire & Casualty Insurance Company. Mr. Young also sought to recover statutory penalties and attorney’s fees for State Farm’s wrongful refusal to pay benefits. Mr. Young’s son, Robert Young, also joined as plaintiff, claiming he held a mortgage on the damaged property. State Farm defended the suit on the basis of arson and a lack of insurable interest. State Farm also brought a reconventional demand against Walter Young for $15,000, the amount paid to his mortgagee under a loss payee clause in the policy. Following a trial on the merits, the jury rendered a verdict in favor of Walter Young, which included awards for loss of the dwelling, the loss of contents therein and additional living expenses. The judgment also included interest, penalties, and attorney’s fees. The claim of plaintiff Robert Young and the reconventional demand of State Farm were dismissed. State Farm now appeals, alleging some thirteen assignments of error.

INSURABLE INTEREST

Background Information

Much evidence at trial concerned whether or not Walter Young had an insurable interest in the insured property. Walter testified he felt compelled to provide for Robert, his epileptic son. He built the house “a little bit at a time,” according to how much extra money he had. In addition to his own funds he borrowed $15,000 from First National Bank of Denham Springs. The loan was secured by a $15,000 first mortgage on the property. Milton Coxe, a former loan officer at the bank, testified although the loan was actually in Robert’s name and contained Robert’s signature, it was considered to be Walter’s loan. Other testimony revealed Robert allowed his father to handle most of his business dealings, and in some instances Walter actually signed Robert’s name to certain documents.

On February 16, 1976, while the house was under construction, Walter contracted with State Farm for an insurance policy on the house and its contents. The policy was in Robert’s name. Shortly thereafter Robert informed his father he did not want to move into the house; therefore, Walter decided to buy the house from Robert.

In exchange for the house, Walter assumed the First National Bank note, which he refinanced with Magee Finance. (The loan was refinanced because of pressure from First National Bank for Young to repay the loan on monthly installments, rather than on demand.) Walter also gave Robert a note for $15,000, which was secured by a second mortgage on the property. Further, Walter purchased his mother’s and siblings’ interest in the house located on Highway 51 and transferred this property to Robert.

The agreement concerning the new house occurred allegedly in late 1976, pursuant to oral committments. The Youngs approached attorney (now judge) Brent Du-freche concerning the necessary paperwork; however, the authentic act of sale was not passed until March 25, 1977.

At trial plaintiffs introduced an unrecorded handwritten act of sale which had been drawn up by Mr. Coxe in connection with the refinancing of the property. State Farm questioned the authenticity of this document because it was discovered in Mr. Coxe’s home only one week prior to trial. Further, an affidavit by Robert Young stated “the sale between my father and myself took place without any writing until Attorney Brent Dufreche in Ponchatoula did the sale for me to put it in writing.”

Issues on Appeal

State Farm raises two errors committed by the trial court as regards to the insurable interest issue. One, State Farm contends the jury instructions on the law of transfer of immovable property and on insurable interest were insufficient. Two, State Farm argues since the authentic act of sale was not executed until March 25, 1977, Walter had no insurable interest in the property when he contracted for the subject policy in February of 1977.

First, we need not dwell upon the sufficiency of the jury instructions because we conclude there was sufficient evidence to establish Walter had an insurable interest in the property. Even if we were to find the instructions inadequate we must decide the issue on our own rather than remanding to the trial court. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). In such a case it is our constitutional duty to review the facts as well as the law. La. Const, art. 5 § 10(B). We are then to render judgment based upon the record. La. Code Civ.P. art. 2164.

Even if there had been no valid sale of the property before the policy was written, the record shows Walter had an insurable interest in the property, nevertheless. La.R.S. 22:614 requires the insured to have an insurable interest in the property covered by the policy in order for the policy to be enforceable. The statute defines insurable interest as “any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.” This definition does not require an ownership interest in order to have an insurable interest. State Farm Mut. Auto. Ins. Co. v. Price, 378 So.2d 599 (La.App. 3d Cir.1979). See Stokes v. Republic Underwriters Ins. Co., 387 So.2d 1261 (La.App. 1st Cir.1980) and Brewster v. Michigan Millers Mutual Insurance Co., 274 So.2d 213 (La.App. 2d Cir.1973).

In Brewster, a father was held to have an insurable interest in a house he built for his sons because he had retained possession and control of the house, the right to live in it, rent it to others, or to use it as he wished. In Stokes, a woman was held to have an insurable interest in her aunt’s house because she lived there with her aunt’s permission. Even though the woman could not demand she be allowed to stay in the house, her right of occupancy was deemed to have some pecuniary value. In Price, a good faith purchaser of a stolen automobile was held to have an insurable interest, even though he did not actually own the car. The insurable interest was derived from his possession of the car and his interest in preserving the car due to the substantial sum he had paid for the car’s repair.

Likewise, Walter Young had a substantial economic interest in the house’s preservation, since he had invested much time and money in its construction. Also, he was in actual possession of the house for three or four months prior to the fire. This right of occupancy alone gave Walter an insurable interest.

ARSON

Sufficiency of State Farm’s Pleadings

Walter Young contends the defense of arson (which is a type of fraud) should not be considered because it is an affirmative defense that was not included in the pleadings. The defense of arson has been characterized as an affirmative defense. See Tolbird v. Southern Insurance Company, 130 So.2d 535 (La.App. 2d Cir.1961), cert. denied 1961. As an affirmative defense, alleging fraud, it must be plead with particularity. See La.Code Civ.P. arts. 856 and 1005.

When Walter Young filed a claim for his fire loss, State Farm declined to pay, stating they suspected the fire was set deliberately and they were conducting an investí-gation as to the origin of the fire. After suit was filed, State Farm’s answer contained a general denial which stated the “fire and destruction of the residence and contents was caused by the intentional act either directly or indirectly of Walter Young....”

Prior to trial, in response to an interrogatory propounded by plaintiffs concerning the origin of the fire, State Farm answered, “investigation reveals that the fire was of incendiary origin.” A later response to a similar question was, “Because combustibles were found in the house; because of the nature of the fire; and because of the various surrounding circumstances.” State Farm further stated in another answer to an interrogatory it believed gasoline and kerosene were used to start the fire, and the stove or other devices could have been, used to ignite the combustible material.

Although State Farm’s pleadings were rather conclusory, the evidence concerning arson was properly considered. The plaintiff was fairly apprised of the nature of the arson defense before trial from both the allegation in defendant’s answer and from the answers to interrogatories. See First Fed. Sav. & L. Ass’n v. National Old Line Ins. Co., 254 So.2d 497 (La.App. 3d Cir.1971).

Facts Concerning Arson

The fire was discovered by Robert and Imelda McLee, who lived next door to the Young house, at approximately 2 A.M. on April 17, 1977. The McLees testified they were awakened by a loud popping and crackling noise and observed extremely high flames which had spread to trees in their own yard. The McLees immediately notified the fire department. . Walter Young and two friends, Jimmy Haltom and Jack Long, lived in the house at that time but none were present when the house burned.

Walter Young, a truck driver by trade, testified he had been in the house the afternoon of April 16 but had left at approximately 8 P.M. to travel to Texas. In support of this testimony he offered a record from the U.S. Customs officials in Progres-so, Texas, showing he had purchased gasoline in Mexico on April 17, 1977. Jack Young stated he too had been in the house the afternoon before the fire but had left that day for Tennessee to pick up an automobile. Jimmy Haltom testified his girlfriend picked him up from work the afternoon of April 16. He accompanied her to Baton Rouge and did not return to the house until 5:30 A.M. on April 17, when he learned the house had burned.

Mr. Harold Meyers, an expert in damage engineering and specialist in determining the origin of fires, testified his investigation of the remains of the house led him to conclude the fire had been set intentionally. Mr. Meyers stated he believed the fire had been preceded by an explosion because a window had been found some 33 feet away from the house with only a slight amount of heat damage. Since the house had only electric utilities and no gas connection he believed such an explosion could be caused only by arson. Mr. Meyers also testified two burners on the stove appeared to have been turned on at the time of the fire. He found what appeared to be trail of rags leading from the stove to the other rooms in the house. These samples, along with a rag found in the kitchen, were examined by a chemist, Mr. Reginald Daughdrill. Mr. Daughdrill testified the rag from the kitchen may have contained kerosene, the padding from the bedroom contained very minute traces of a C-9 organic compound, and the carpet padding in the living room most definitely contained traces of an organic compound in the C-9 to C-13 range which was a type of heavy gasoline.

Based on this information Mr. Meyers concluded the stove had been used as a triggering mechanism to ignite the rags which led to other gasoline soaked rooms in the house. An empty gasoline can found in the garage area supported this theory. Mr. Young said it was used for his lawn mower; however, no lawn mower was found in the debris. Mr. Thomas Mego, an investigator for the State Fire Marshall’s office, testified he too believed the fire was caused by arson, based on the fire pattern and the fact the house was so totally consumed.

This theory concerning the gasoline soaked rags was refuted to some extent. Other testimony indicated all three men who lived in the house did mechanic’s work and often left oil and gasoline soaked rags lying around the house. Mr. Daughdrill, on cross-examination, admitted the test he did on the rag and carpet samples was a qualitative rather than a quantitative one, though he believed there were more than just minute traces of organic compounds on the samples. Also, even though the rags were used allegedly as a fuse to lead the fire to other rooms in the house, photographs of the debris offered to support the Meyers’ theory showed the rags themselves were not burned, but were found intact under some debris. Expert testimony was also introduced to show other possible causes of a house exploding during a fire.

State Farm further attempted to establish plaintiff had a motive to burn the house. It claimed Walter Young had no need for the house since his son refused to accept it and because Walter stayed in the house an average of only five nights each month due to the extensive travel involved in his work. Though Walter denied it in an interrogatory, he admitted on the stand he had signed his son’s name to a listing agreement with the Norwood Smith Real Estate Agency. However, plaintiff contended the agreement was signed only at the insistence of a good friend, Mr. Russell Haltom (Jimmy Haltom’s brother), and Mr. Young later asked Mr. Haltom not to show the house since he really did not want to sell it.

In an effort to establish a motive State Farm also attempted to show Mr. Young was in financial trouble. Evidence was introduced showing he had been declared bankrupt in 1975 and he had not made a single payment on the $15,000 mortgage note he gave to Magee Finance. However, Mr. Young seemed able to provide financially for his three sons. He had bought each either a house, car, boat or business. Additionally, Milton Coxe, formerly with the Citizens National Bank in Ponchatoula and the vice-president of the First National Bank of Denham Springs, testified Mr. Young’s credit rating was not bad, and stated he had continued to loan him money after the fire.

Jury Instructions Concerning Arson

After the twelve days of trial in which the above testimony was heard, the jury rejected the arson defense and found in favor of Mr. Young. On appeal, State Farm contends the verdict was the result of erroneous and prejudicial jury instructions which raised the burden of proof required to prove arson. State Farm alleges the court should have instructed the jury arson needs to be proved only by a preponderance of the evidence but instead gave instructions which stated arson must be shown by “strict proof.” State Farm contends this estabished in the jury’s mind a requirement close to the criminal burden of proof beyond a reasonable doubt. Defendant further complains about the instruction that “arson must be established by a proof of such import that it will sustain no other reasonable hypothesis but that the insured was responsible for the loss.”

In Rist v. Commercial Union Ins. Co., 376 So.2d 113 (La.1979), the Supreme Court stated, page 114, the “sole issue ... is whether ... [the defendant] established by a clear preponderance of the evidence that the fire in question was of incendiary origin and that [plaintiff] was responsible for it.” The Rist court, noting the proof was strictly circumstantial, also stated the evidence in the case was of such import it would sustain no other reasonable hypothesis but that the plaintiff was responsible for the fire. This latter version of requisite proof has been held to be applicable when the insurer relies solely upon circumstantial evidence, as State Farm did in this case. Wallace v. State Farm Fire & Cas. Ins. Co., 345 So.2d 1004 (La.App. 2d Cir.1977), writ denied 1977.

We agree the jury instructions were inadequate in that they did not include defendant’s requested instructions that the “proof may be and invariably is circumstantial.”

However, as mentioned above, even though the jury instructions may have been inadequate, we must decide the issue on our own rather than remanding to the trial court. Gonzales, supra.

Here we cannot say the record does not support the jury’s verdict. For this court to reverse, we would have to find State Farm proved by a clear preponderance of the evidence both that the fire was of incendiary origin and that Mr. Young was responsible for it. Yet, substantial evidence was introduced to rebut both the evidence concerning the incendiary nature of the fire and the evidence which attempted to establish a motive on the part of Mr. Young.

This rebuttal evidence provided other possible explanations for the cause of the fire, including the possibility of spontaneous combustion of oily, greasy rags. It also established reasonably that the house was underinsured. Plaintiff allegedly bought the house for $55,000. Weldon Russell, an expert real estate appraiser, testified the house had a replacement value of $66,550.40 at the time of his report in August 1981, and a value of $51,869 at the time of the fire in 1977. The house was insured for only $41,700. In light of this and other rebuttal evidence mentioned above, we cannot say the jury’s verdict was contrary to the clear weight of the evidence. The evidence concerning Mr. Young’s motive to burn the house is not convincing enough for us to conclude it is more probable than not he was responsible for the destruction of his home. Viewed another way, the evidence is of such import it does sustain other reasonable hypothesis for the cause of the fire. We therefore affirm the award for loss of the house.

AWARD FOR CONTENTS AND LIVING EXPENSES

State Farm contends plaintiffs did not prove adequately the value of the contents; rather, State Farm argues the claim for contents amounted to falsification and fraud of such a nature as to void the policy. Extensive testimony was introduced regarding the contents of the house at the time of the fire and the value thereof. After hearing all the evidence, the jury awarded Mr. Young $16,000 for unscheduled personal property. (The policy coverage on contents was for $20,850.)

Mr. John Garcia, a State Farm insurance adjuster, met with Mr. Young a few days after the fire and gave him inventory forms to assist him in making his claim. When the original inventory was taken, Young told Garcia ninety-five percent of the contents had been purchased within twelve months of the fire from the Christmas Tree House in Houston, Texas or from Kieffer’s Imports in MacAllen, Texas. The purchases from the Christmas Tree House could not be corroborated since it had subsequently gone bankrupt and because Mr. Young had no receipts. Kieffer Imports was found to be a truekstop-ware-house run by Mr. Bill Kieffer, a friend of Young’s. Kieffer allegedly gave Young several pieces of expensive hand-carved mahogany furniture from Mexico in lieu of a cash payment for a load of tires which Young had delivered to Houston. State Farm argues the evidence does not sufficiently prove the value or existence of the furniture allegedly supplied by Kieffer. State Farm contends since Mr. Kieffer was present in Tangipahoa Parish at the time of trial the failure of plaintiff to call Kieffer created a legal presumption his testimony would have been adverse to plaintiff. However, this presumption does not apply when the witness is equally available to both parties. Hemphill v. Strain, 371 So.2d 1179 (La.App. 1st Cir.1979), writ refused 1979; Ellis v. Coleman, 309 So.2d 716 (La. App. 4th Cir.1975). Thus, the trial judge did not err in denying instructions regarding this presumption. At the time of trial Mr. Kieffer was present in Tangipahoa Parish to care for an ill friend. State Farm was aware of his presence and could have called him to testify about the furniture.

State Farm’s main contention regarding false swearing was that a second contents inventory prepared years after the fire, in 1981, differed substantially from the original inventory which was prepared shortly after the fire. The later inventory was prepared in response to State Farm’s interrogatories and was written with the assistance of counsel and the two men who were living with Young at the time of the fire. The original inventory reflected the contents to be worth $22,835, while the later inventory showed a value of only $16,-370. Although the second inventory did differ substantially as to the specific contents of the house and as to the value thereof, we do not find this discrepancy in itself to constitute fraud or misrepresentation by the insured. G.U. Bybiski & Co. v. La. Coastal, Etc., 369 So.2d 1097 (La.App. 1st Cir.1979).

The second inventory also stated a substantial amount of the house’s furniture and appliances had been purchased from Slidell Furniture Company in 1975 and 1976. However, defendant showed the Sli-dell Furniture Company had gone out of business in 1974. This discrepancy was explained by Mrs. Leak Magee, a co-owner of Slidell Furniture Company and a niece of Walter Young. She testified when her store went out of business, much of the remaining furniture was placed in a Mande-ville home. She stated Mr. Young had purchased a substantial amount of high quality furniture and appliances from the Mande-ville stock for the home he was building. She later visited the Young residence and found it to be “almost cluttered” with high quality furniture, including the disputed mahogany Mexican dining room set. Though no traces of the dining room furniture were found in the debris, Mr. Garcia admitted on the stand such wooden items can be burned without leaving any recognizable remains. He also testified, however, remnants of metal, not wooden, furniture were found in the dining area.

Although the testimony on the contents of the house was hotly contested and highly conflicting, we do not find the record shows Mr. Young engaged in false swearing with intent to defraud State Farm. After listening to the evidence, including Mr. Young’s and Mr. Haltom’s descriptions of the contents of the house when it burned, the jury apparently felt the testimony was credible enough to justify an award of over three-fourths of the insured value of unscheduled personal property. We cannot say this award is tantamount to manifest error.

Nor do we believe the jury instructions regarding the proof required for loss of contents were erroneous. According to Tolbird, supra, to establish a claim for loss of contents, an insured is not required to produce supporting vouchers or receipts from stores where the insured items were purchased. In that case, a written list prepared by plaintiff listing each item of personal property and the cost thereof, to the best of his knowledge and ability, was held to be sufficient proof. Thus, the reasoning in Tolbird is consistent with the jury instruction: “Where the best evidence available is plaintiff’s testimony that is sufficient to establish proof of loss.”

In this case, the proof was based upon lists prepared by the plaintiff and the other residents of the house and also upon the testimony of Mr. Joe Yutura, a furniture dealer. Vutura testified as to the suggested retail value of furniture similar to that described as destroyed in the fire. Plaintiffs also introduced numerous photographs of the debris from which the remains of various pieces of furniture could be identified. Although Vutera’s testimony might have been misleading since it was based on the retail value of new furniture, we find plaintiffs used the best available evidence to prove the identify and value of the lost property. We therefore affirm the $16,000 award for unscheduled personal property. We see no abuse of discretion in the amount of this award. See, Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976), rehearing denied 1977.

State Farm also appeals the award of $8,340 for additional living expenses, since Mr. Young introduced no evidence to show such expenses were actually incurred. The testimony of Mr. Young shows he stayed in the house only about five days each month because he spent much time travelling. After the fire, and up until the time of trial, he lived with his son in the small house on Highway 51, where he had lived before moving into the house which burned. However, Young argues even if no additional expenses were incurred, he is still entitled to the fair value of what it would have cost to maintain the same standard of living as he had enjoyed in the larger house. This argument is contrary to the language of the policy which states it “covers the necessary increase in living expense incurred by the Named Insured to continue as nearly as practicable the normal standard of living....” (Emphasis added.) Since no evidence was introduced to show additional living expenses were actually incurred, and since none seemed to have been necessary to maintain Mr. Young in a standard of living similar to that of which he was accustomed, we reverse the award for additional living expenses. This award was contrary to the evidence presented and was clearly wrong.

PENALTIES, ATTORNEY’S FEES AND EXPERTS’ FEES

State Farm complains the jury erroneously awarded attorney’s fees and penalties. La.R.S. 22:658 provides an insurer who arbitrarily refuses to pay a claim within 60 days of satisfactory proof of loss shall pay a penalty of 12% damages on the total amount of the loss, plus reasonable attorney’s fees. Since R.S. 22:658 is a penal statute, it must be strictly construed and the penalty must not be assessed unless the refusal to pay was arbitrary, capricious or without probable cause. Headrick v. Pennsylvania Mutual Ins. Co., 257 La. 1101, 245 So.2d 324 (La.1971), rehearing denied 1971.

In a case such as the present one, in which there were admittedly suspicious circumstances surrounding the fire, State Farm was within its rights in refusing to pay the claim and in litigating the matter based upon the arson defense. See Headrick, supra and Stokes, supra. We therefore reverse the judgment insofar as it awarded 12% penalties and $27,035.63 in attorney’s fees. Because we reverse this award we need not address many of appellant’s other assigned errors concerning these matters.

Defendant contends finally the trial court abused its discretion in awarding excessive experts’ fees. After the jury verdict was rendered, the trial judge set the expert witness’ fees for all plaintiff’s experts at $250 per day. Mr. Weldon Russell testified as an expert real estate appraiser and was awarded a total of $750 for three days. Mr. Joe Vutera testified as an expert in furniture value and was awarded $250 for his one day of testimony. Mr. Milton Coxe testified as an expert in the banking business and in the field of applied interest rates. His fee was set at $750 for three days of preparation and testimony. Mr. Charles Bender, who testified as an expert in the field of criminal and fire investigations, was awarded $1,500 for six days of preparation and testimony.

The amount of expert fees is a matter within the discretion of the trial court and should not be disturbed unless found to be manifestly erroneous. La.R.S. 13:3666; Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1st Cir.1981). Although we find these fees to be somewhat high, they are not manifestly erroneous nor are they out of line with awards in similar cases, thus suggesting an abuse of discretion. See Williams v. Harvey, 328 So.2d 901 (La.App. 4th Cir.1976).

CONCLUSION

For these reasons, the portions of the judgment which awarded plaintiff additional living expenses, penalties, and attorney’s fees are reversed; the judgment is affirmed in all other respects. Costs are to be paid by appellant State Farm.

REVERSED IN PART; AFFIRMED IN PART.


source: Caselaw Access Project

author: ELLIS, Judge: SAVOIE, J.,

license: Public Domain

text:
    FIRST GUARANTY BANK OF HAMMOND v. Paul H. BOWDLE, et al.
    No. 82 CA 0030.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Tom Matheny and Christopher Moody, Hammond, for plaintiff-appellant.
    E. Wade Shows, Baton Rouge, Art Macy, Hammond, for defendants.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit on a promissory note. Plaintiff, First Guaranty Bank of Hammond, alleges itself to be holder of a note for $100,000.00, payable on demand, with interest at the rate of 8.5% interest from date until paid, and 25% attorney’s fees. Defendants Paul H. Bowdle, Jr. and Dr. C.D. Alford are alleged to be the makers of the note, and to be in default in its payment. Judgment is prayed for against both defendants, in solido, for the full amount of the note.

To the petition, Dr. Alford filed a dilatory exception of prematurity, alleging that plaintiff had contracted with him not to institute suit against him on the note without first obtaining judgment and exhausting all enforcement remedies against Bow-dle. An evidentiary hearing was held, after which judgment was signed granting the exception and dismissing the suit as to Dr. Alford. After a new trial was denied, plaintiff appealed.

At the trial, Dr. Alford testified, without contradiction, that he co-signed the note. He further testified:

“I meant I was just signing Mr. Bowdle’s note. I wasn’t borrowing the money, he was. And I signed it that if he didn’t pay it, they could come after me, but it was his note and I wanted them to collect from him first.”

He further testified that, some time after he signed the note, he talked to the president of the bank about it, and told him “... I wanted him to promise me that he was to get this from Bowdle and to at least take everything that Bowdle had on this note before he came after me and he guaranteed me that those were strictly his intentions and that was the way he was going to do.”

There is also in the record a letter from the Vice-president and manager of the bank stating: “The position that we have taken is that full recourse would be taken against Paul Bowdle without any legal action being taken against you until this was done.”

The record further reflects that Bowdle had left Louisiana and was living in Florida. A suit filed against him in Jefferson Parish was dismissed for lack of jurisdiction over the person. An attempt to serve Bow-dle under the long-arm statute was made in this suit, but the certified letter directed to him was returned marked “Moved, Left No Address”. Dr. Alford testified that he advised the bank when Bowdle could have been served in Louisiana at a bankruptcy hearing, but that no effort was made to serve him at that time.

Since no testimony was offered on behalf of the bank to contradict that of Dr. Alford, we agree with the trial judge that an agreement existed between the bank and Dr. Alford that there would be no attempt to get a judgment against Dr. Alford until all remedies against Bowdle had been exhausted.

Plaintiff claims that Dr. Alford’s parol testimony should not have been admitted to vary the terms of the note. We think the testimony was entirely admissible, but plaintiff cannot now complain, since the testimony came in without objection. We find that the agreement not to proceed against Dr. Alford until all remedies against Bowdle are exhausted is valid and binding, and modifies the engagements made by Dr. Alford when he executed the note.

Plaintiff further claims that the trial court erred in finding that it had not sufficiently pursued its remedies against Mr. Bowdle. The record shows that one suit was filed, and dismissed, in Jefferson Parish before the instant suit was filed. The only effort made to serve Bowdle in this suit was the mailing of the certified letter, although plaintiff was informed by Dr. Alford of Bowdle’s presence in New Orleans. We do not believe that these activities are sufficient to constitute a good faith effort on the part of plaintiff to fulfill its engagement to exhaust its remedies as to Bowdle.

For those reasons, the judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.

SAVOIE, J.,

dissenting:

I respectfully dissent.

First Guaranty Bank of Hammond appeals from an exception of prematurity dismissing its claim for payment on a promissory note. The basis for the exception of prematurity is the Bank’s failure to obtain judgment against defendant Bowdle and exhaust all enforcement remedies thereunder before pursuing defendant Alford.

On appeal, the Bank objects to the trial court’s admission of parol evidence to prove an oral contract of suretyship and the finding that such a relationship existed between the parties. Further, it contends the trial court erred in determining that the Bank had not sufficiently pursued the co-maker of the instrument.

I conclude the granting of the exception of prematurity was error. Dr. Alford’s status on the note is that of an accommodation maker. As such, and by the terms of the contract, the Bank has no obligation to pursue defendant Bowdle first.

First Guaranty Bank is the holder and payee of a promissory note dated July 12, 1973, signed by Paul Bowdle and Dr. C.D. Alford. The note is in the sum of $100,000 and payable on demand. It provides, among other things, that the parties waive presentment for payment and all pleas of division and discussion. It stipulates that the parties bind themselves in solido, unconditionally and as original promisors for the payment of the note. Further, it states that the parties agree that the note sets forth their entire agreement and that they consent to all terms and conditions. In addition, it provides that no modifications will be binding unless endorsed in writing thereon and signed by the parties.

L.S.A.-R.S. 10:3-415 provides in pertinent part:

“(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
“(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.
“(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.”

Appellant contends the trial court erred in admitting parol evidence to establish the existence of a suretyship contract. Under Subsection 3 of the above cited statute, the only person who can forestall the defendant’s use of parol evidence to prove his accommodation status is a holder in due course who takes without notice of the accommodation. In the instant case, the Bank knew of the accommodation character of Alford’s signature. This is evidenced by the Bank’s letter to Dr. Alford stating the Bank’s position with respect to the note in question, as well as by Dr. Alford’s testimony. c.

Dr. Alford testified that he signed the note so that Bowdle could borrow the money. He stated he was vouching for Bowdle. In addition, he understood that if Bowdle failed to pay, he (Alford) would be responsible.

It is evident that Alford was “lending his name” to Bowdle and, thus, signed as an accommodation party. (L.S.A.-R.S. 10:3-415(1)). The Official Comment under the UCC, Section 3-415 points out that an accommodation party is always a surety. As such, the accommodation party has the rights and defenses available to a surety under suretyship law, as well as the rights and liabilities of a party to the instrument. However, he differs from other sureties in that his liability is on the instrument and he is a surety for another party to it.

Subsection (2) of the statute provides that when an instrument is taken for value before it is due, as in the instant case, the accommodation party is liable in the capacity in which he signs. This is true, even though the taker knows of the accommodation. Therefore, the fact that the Bank knew Dr. Alford was signing as an accommodation party does not change Dr. Alford’s liability to the Bank.

Dr. Alford signed as a maker. He promised to pay the instrument according to its tenor at the time he signed it. (L.S.A.-R.S. 10:3-413(1)). As an accommodation maker, he has all the liabilities of any other maker. Thus, he is bound on the instrument without any resort to his principal.

Nevertheless, as an accommodation party, Dr. Alford has the rights of a surety. One of these rights, the plea of discussion, obligates the creditor to exhaust the property of the principal debtor towards the satisfaction of the debt before having recourse to the surety. (C.C. 3046). This essentially is the basis for the exception of prematurity. However, all pleas of discussion were waived by Dr. Alford under the provisions of the note.

In contrast thereto, Dr. Alford argues there was an oral modification of the written agreement. Proof of this alleged modification was presented by Dr. Alford’s testimony at trial on the exception. However, a careful reading of the testimony does not support his contention. Dr. Alford testified as to what he thought the instrument meant and what he thought the Bank meant; but at no time prior to, at the signing of the note, or thereafter, did Dr. Alford take any steps to determine his true obligations under the note or the true intentions of the Bank. There is language in the recent case of Leenerts Farms, Inc. v. Rogers, et al., 421 So.2d 216 at 218 (La.1982), which is most appropriate to this argument.

“Any analysis of this issue must start with the premise that legal agreements have the effect of law upon the parties and that the courts are bound to give legal effect to all such contracts according to the true intent of the parties. Further, that this intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences. La.Civ.Code art. 1945. Courts are not created to relieve men of their bad bargains made.” (Emphasis added).

The trial court erred in granting the exception of prematurity.

      . Louisiana’s Commercial Laws (LSA-R.S. 10:1-101 et seq.) are based on the articles of the Uniform Commercial Code. While the Official Comment to the articles of the UCC are not a part of the enactment of Louisiana’s Commercial Laws, they, as the Louisiana “Comments”, constitute a reliable aid in construing statutory language.

      . The majority opinion quotes from this letter as follows:
      “The position that we have taken is that full recourse would be taken against Paul Bowdle without any legal action being taken against you until this was done.”
      The majority is of the opinion that this phraseology supports Dr. Alford’s allegation that there was an oral modification of the written instrument. I view the letter in a different light.
      The full context of the letter shows that the Bank was demanding payment of interest from Dr. Alford. Dr. Alford made these interest payments to the Bank. In so doing, his own actions belie his allegations.

      .L.S.A.-R.S. 10:3-415(3) permits proof of the accommodation status of a party by oral evidence. Presumably written proof extrinsic to the instrument also can be introduced. It is noted that the Official Comment under UCC, Section 3-415 refers only to “parol evidence.”

      . UCC — Official Comment, Section 3-415 provides:
      “1. Subsection (1) recognizes that an accommodation party is always a surety ...”


author: SAVOIE, Judge.

text:
    Alan S. FISHBEIN, et al. v. Walter R. BANKSTON, et al.
    No. 82 CA 0201.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      Pamela C. Walker and John Dale Powers, Baton Rouge, for plaintiffs-appellants Alan S. Fishbein, et al.
    Leon Gary, Jr., Baton Rouge, for defendants-appellees Walter S. Bankston, et al.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiffs-appellants, Mr. and Dr. Fish-bein, appeal the trial court’s dismissal of their suit for breach of contract.

Appellants purchased a lot in Woodstone Estates Subdivision, East Baton Rouge Parish, Louisiana, from defendants-appellees, developers of the subdivision, subject to the “Declaration of Restrictions, Reservations, Covenants, and Conditions Affecting Wood-stone Estates, 3rd filing” (Restrictions). In the act of sale, appellants added the following language:

“Sales price includes one share of wonership (sic) in recreational facilities, swimming pool, clubhouse, etc. to be built by Seller at no additional charge to buyer.”

Appellants claims this language obligated the appellees to build a swimming pool on the common ground of the subdivision. As a result of their failure to do so, appellants contend that appellees are obligated for all costs, maintenance, and interest incurred by appellants in building their own private pool. Additionally, appellants claim that appellees are obligated to pay transportation and other costs incidental to the competitive swimming facility used by appellants’ children.

Appellees contend appellants received that which they sought to purchase (i.e., the lot in question and a share in the common ground recreational facilities owned by the Woodstone Homeowners Association (Association).

Testimony reflects that appellants did receive the lot in question and one share in the recreational facilities. The recreational facilities, however, did not include a pool. Although appellees offered to build a pool, the Association refused it, opting instead for additional tennis courts.

It is uncontested that these Restrictions which gave ownership of the common ground to the Association, were of public record prior to the instant sale. Appellants knew of these Restrictions and of their automatic membership in the Association by reason of their purchase of property in the subdivision prior to their purchase. It was not until the Association voted to have additional tennis courts instead of a swimming pool that appellants opted to pursue this litigation outside the framework of the Restrictions and the Association.

A contract between two parties is the law between them. L.S.A.-C.C. 1901; and Oncale v. Aetna Casualty and Surety Company, 417 So.2d 471 (La.App. 1st Cir.1982). Conflicting contractual language will be construed against the drafter. L.S. A.-C.C. 1957, 1958; Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir.1981), writ denied, 384 So.2d 793 (La.1980). In this instance, appellant, Allen Fishbein, an attorney, drafted the language in question and asserts that it was his intention to mandate the building of a swimming pool by the developers. Appel-lees contend that the intent of the language was recreational facilities such as a swimming pool, clubhouse, etc. to be built on the common ground.

Examination of the record reveals that the building restrictions which gave each homeowner one share in the Association and set aside the common ground did not provide that the developers would build recreational facilities thereon at no additional charge to the homeowners. Obviously, appellants, by this provision, sought to assure development, at no additional charge, of these recreational facilities by the defendants.

Contracts in Louisiana must be construed in such a way as to lead to a logical conclusion and give effect to the obvious intention of the parties. Lambert v. Maryland Casualty Company, 418 So.2d 553 (La.1982), rehearing denied, September 3, 1982. These contractual provisions must be interpreted in a commonsense fashion, giving to the words of the contract their common and usual significance. L.S.A.C.C. Art. 1946. A cardinal rule in contractual construction is that contracts must be viewed as a whole and, if possible, practical effect given to all its parts, according to each the sense that results from the entire agreement so as to avoid neutralizing or withdrawing any of them or treating them as surpluses. L.S.A.-C.C. Art. 1955; and Lambert, supra.

Appellants would have us isolate the words “swimming pool” and use them to nullify the Restrictions, giving appellants veto power over the Association. This is illogical.

The sale as a whole cannot be interpreted without the Restrictions which were a part thereof. Appellants’ actions in operating within the framework of the Association for two years clearly reflects that what they sought, by this language, was one share in the common ground recreational facilities to be built by the developers at no additional cost to them.

Appellants also contend that they possess a right of action based on misrepresentation of appellees’ agent. The trial court found as a matter of fact without discussion that there was insufficient evidence to substantiate such claim. We may not substitute our evaluations and inferences for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ refused, 392 So.2d 690 (La.1980).

For the foregoing reasons, the decision of the trial court is affirmed. Appellants are to pay all costs.

AFFIRMED.

      . Appellants’ cash sale contains a provision which subjects all lot owners to certain restrictions known as the “Declaration of Restrictions, Reservations, Covenants, and Conditions Affecting Woodstone Estates, 3rd filing.”


author: ELLIS, Judge:

text:
    Alean COLEMAN, on Behalf of her minor daughter, Vanessa MATHEWS v. James W. MOORE and Trinity Universal Insurance Company.
    No. 82-CA-0213.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

    Writs Denied April 15, 1983.
    Vanessa Mathews, The Properly Substituted plaintiff, for Alean Coleman.
    Trinity Universal Ins. Co., for defendant appellee.
    James W. Moore, pro se.
    Before PONDER, SAVOIE and ELLIS, JJ.

      Savoie, J. would grant a rehearing.

   ELLIS, Judge:

This is a suit for damages for personal injuries arising out of a shooting incident. Plaintiff is Vanessa Mathews, who was a minor at the time suit was filed, but who attained majority prior to trial. The original defendant was James Moore, who denied liability, and pled fault, contributory negligence and assumption of risk on the part of plaintiff. Moore also third partied Trinity Universal Insurance Company, his liability insurer. Plaintiff then impleaded Trinity as a defendant. Trinity denied coverage on the basis that plaintiff’s injuries were caused by an intentional act on the part of Moore. Trial was held on the merits before a jury, which returned a verdict in favor of defendant. From the judgment dismissing her suit, plaintiff has appealed.

Plaintiff’s testimony, which is supported by that of Harriet Nell Lockett, is that she and Harriet were looking for an apartment to rent, and called on Moore for that purpose. He asked them to return later, which they did. While he was showing them around his apartment, he got plaintiff alone in his bedroom, pointed a shotgun at her and ordered her to disrobe. Plaintiff said she had removed all of her clothing except her brassiere, when Harriet entered the room, distracting Moore. Plaintiff then seized a lamp and hit Moore over the head with it, knocking him down. She retrieved her pants, got a small can of mace from her pocket and sprayed it on Moore. She and Harriet then ran from the house. She stated that, after she was in the yard, she heard shots, and was wounded in the buttocks.

According to defendant, when the girls returned to his house for the second time, plaintiff went to the bathroom, from which she emerged clad only in her brassiere. She then began to dance around. He went to the bedroom, and she followed him there and sprayed him with mace.

Then Harriet came in and they hit him in the head with the lamp. He said that he was bloody and knocked out. He stated that he was beaten, kicked, and stomped in the bedroom. When he came to, he and the girls fought in the living room and he then went to the front porch and fell. He then called for help. He had no recollection of using the shotgun. He was clad only in a T-shii’t when he was on the front porch. When the fight started he was fully clad, and could not recollect how he came to be disrobed.

A police investigator found a pump shotgun which had one shell in the chamber. He found one wad from a shotgun shell on the front porch of the house, and another about 30 feet from the house. He found one empty shotgun shell under defendant’s truck near the front porch. He did not find a second shell, although he testified that he searched for it, both in and out of the house. He testified that the closest evidence of blood he found was in the yard eight or ten feet from the front porch.

Moore’s sons testified that they examined the premises on the morning after the incident, and found an empty shotgun shell in the hall of the house, under a bench. They also said that they found bloodstains on the front porch.

The jury brought in special verdicts to the effect that James Moore shot and injured plaintiff, that he was not negligent in so doing, and that he intended that his actions would cause her injury. The jury further found that plaintiff was contributo-rily negligent, that she assumed the risk, that James Moore acted in self-defense, and that plaintiff was not entitled to recover damages.

It is evident from the verdict that the jury was of the opinion that Moore deliberately fired on Vanessa Mathews, but that Vanessa was the instigator of the incident, and therefore the aggressor, and was barred from recovery.

It is settled law that an aggressor cannot recover for injuries suffered in an altercation, unless the injuries result from the use of excessive force to repel the aggression, or the injuries are suffered after the aggressor has retired from the fray. Graves v. Irwin, 396 So.2d 384 (La.App. 1st Cir.1981); Landry v. Gilger Drilling Company, 92 So.2d 482 (La.App. 1st Cir.1957).

It is evident from the record that Vanessa Mathews was leaving the premises when she was shot. She was wounded in the buttocks, and the preponderance of the evidence shows that she was in the yard, some eight or ten feet from the porch when she was hit. It is clear that she had retired from the fray when she was wounded, so that, even if she were the original aggressor, the original altercation had ended when she left the house. Moore’s act in firing at her was not necessary to repel the original aggression and, under the circumstances, was an excessive use of force.

We therefore find that the jury was manifestly erroneous and clearly wrong in denying recovery to Vanessa Mathews for the injuries received by her when she was shot by Moore.

Vanessa Mathews was shot on February 18, 1977. She was taken to a hospital, where it was found that she had sustained a shotgun blast to the left buttock. She had no motor function in her left foot, and no sensation in the foot and lower left leg. This was due to a damaged sciatic nerve. She suffered no arterial or vein damage.

She was treated by having the wound cleaned and packed. The packing was changed frequently to keep the wound clean and promote healing. This procedure was characterized as causing mild to moderate pain. The hospital records show that no pain medication was given plaintiff during her entire stay in the hospital. By the time of her discharge from the hospital on March 8th, she had almost recovered from the blast wound but had no return of her sciatic nerve function.

After her discharge from the hospital, she received physical therapy and then was referred to the New Orleans Neurosurgery Clinic. She was first seen there on May 31, 1977, and a brace was placed on her leg. A nerve conduction study was done in June, and by July 26, there was still no significant improvement in her condition. Three months later, however, her ankle function was quite good, and sensation had returned except for her left big toe. She was finally discharged as “well” on February 10, 1978. At that time, she was still walking with a slight limp, and had no sensation in her left big toe, but was otherwise recovered. It was estimated that she would have a 95 to 98 percent recovery.

As of the time of the trial, in December, 1981, plaintiff complained of occasional swelling in her left ankle from standing, and some problem with her left big toe.

From all of the above, we gather that plaintiff suffered a wound from which she had an excellent recovery within a year. Apparently, it was painful only in the beginning, and only moderately so. Considering all of the circumstances, we think an award of $20,000.00 will adequately compensate plaintiff for her pain, suffering and disability.

The final question presented is the liability of Trinity Universal Insurance Company, Moore’s liability insurer. Trinity denied coverage in this case on the ground that the policy did not extend to intentional acts of its insured. The precise language of the policy limits coverage to “an accident ... which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” The trial jury found that Moore shot the plaintiff, that he was not negligent in so doing, and that he thereby intended to cause bodily injury to plaintiff. There is evidence in the record from which these conclusions reasonably can be reached. We find no manifest error in these conclusions. It is clear that Moore’s intentional act of shooting plaintiff is not covered by the policy.

The judgment appealed from is reversed insofar as it affects James Moore, and there will be judgment herein in favor of plaintiff and against James Moore for $20,000.00, with legal interest from date of judicial demand until paid. In all other respects, the judgment is affirmed. All costs shall be paid by defendant James Moore.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    Richard P. REINA v. Ernest E. HARTENSTINE, et al.
    No. 82 CA 0216.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 15, 1983.

      Richard P. Reina, Denham Springs, pro se.
    Ernest E. Hartenstine & A. Wayne Stewart, Denham Springs, for defendant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiff-appellant, Richard P. Reina, seeks to have reversed the trial court’s judgment sustaining defendants-appellees’, Ernest E. Hartenstine and A. Wayne Stewart, Motion for Summary Judgment.

On December 31, 1980, Richard Reina, Ernest E. Hartenstine and A. Wayne Stewart formed a partnership for the practice of law. Written Articles of Partnership were prepared and duly executed by each of the partners.

The Articles provided, inter alia, that Richard Reina and Ernest E. Hartenstine each had an undivided 35% interest in the existing assets and A. Wayne Stewart had an undivided 30% interest in the existing assets. On June 8, 1981, a disagreement of the parties precipitated a termination of the existing partnership. A conflict of testimony exists as to whether the termination of appellant as a partner was voluntary or by appellees’ vote of expulsion. Appellant subsequently made a demand for his thirty-five (35%) per cent interest in the partnership assets. Appellees contend he is entitled only to his net capital in the firm.

On August 10, 1981, appellees filed an exception of no right and/or no cause of action. At the hearing for the rule on the exceptions, the trial court allowed appellees to orally amend their exception and style it as a Motion for Summary Judgment. In response, appellant filed counter-affidavits indicating an issue of material fact did exist. The trial court subsequently sustained the Motion for Summary Judgment. It is this judgment that appellant seeks to have reversed.

The issue presented is whether a genuine issue of material facts existed such that the Motion for Summary Judgment was erroneously granted.

It is well settled in Louisiana that a partnership agreement is a synallagmatic and commutative contract created only by the consent of the parties. Corkern v. Corkern, 270 So.2d 209 (La.App. 1st Cir.1972), application for writ withdrawn, 272 So.2d 372 (La.1973). The terms of such contract form the law between the parties. L.S.A.C.C. art. 1901.

Under the Articles of Partnership, payments to a withdrawing partner or an expelled partner are identical in dissolution of the partnership. Article V, Section F, Paragraphs 3 and 4, and Article V, Section D, Paragraph 2, Subsection (e) of the Articles of Partnership, respectively, provide in pertinent part:

“ARTICLE V, SECTION F:
“3. A partner shall be expelled immediately when it is determined by a vote of the partners as provided in Article IV that he shall be expelled without determination of any cause therefor.
“4. ... A partner so expelled shall be entitled to the same rights, the same payments by and be subject to the same duties to the continuing firm as if he were then voluntarily withdrawing from the firm. (Emphasis added).
“ARTICLE V, SECTION D:
“2. (e). If a partner has been a partner for less than five years, then such withdrawing partner’s right, title and interest in the firm shall be extinguished in consideration of the partition with and the payments to him by the continuing firm of his net capital in the firm through the effective date of his withdrawal.” (Emphasis added).

The contract, the written intent of the parties, provides for particular partnership termination payments to be made under specified circumstances. Appellant does not contest such payment was made, only that he is entitled to more.

In the instant case, the pleadings, answers, affidavits, and the Articles of Partnership present no material issue of fact. Therefore, the Motion for Summary Judgment was correctly sustained.

Whether the appellant voluntarily withdrew, as he contends, or was expelled, as appellees contend, is of no moment. In either instance, appellant is entitled only to “his net capital” in the firm.

The judgment of the lower court is affirmed. Appellant is to pay all costs.

AFFIRMED.


text:
    Janet Reynolds COX v. John M. COX.
    No. 82 CA 0223.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 5, 1983.
    E. Buddy Thompson, Baton Rouge, for plaintiff-appellant Janet Reynolds Cox.
    Michael V. Clegg, and Joel B. Dickinson, Baton Rouge, for defendant-appellee John M. Cox.

      Before PONDER, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Plaintiff-appellant, Janet Reynolds Cox, seeks a reversal of the trial court’s judgment terminating her ^/kths right in her former husband’s, John M. Cox, military retirement benefits.

Appellant and defendant-appellee, John M. Cox, were married on September 5,1947, in California. Throughout their marriage, they were domiciled in community property states (i.e., Washington, Arizona, or Louisiana).

In January, 1975, John M. Cox filed suit in East Baton Rouge Parish for separation from bed and board. Judgment was so rendered on February 14,1975. On May 14, 1976, Janet Cox was granted a divorce in which John M. Cox was ordered to pay permanent alimony in the amount of $750.00 per month. She subsequently instituted suit to enforce the agreement, also seeking a right in his military retirement benefits not included in the initial property settlement. On January 12,1978, judgment was rendered, recognizing her right to Ziki ths of all past, present, and future military retirement benefits. On appeal, this court affirmed. Thereafter, John M. Cox no longer pursued the matter and the aforesaid judgment is now final. On May 11, 1979, Janet Cox filed a rule for “Judgment for Arrearages and to Make Judgment Ex-ecutory.” John M. Cox was ordered to pay all arrearages.

On October 21,1981, appellee filed a rule to show cause why he should not be relieved of his obligation to pay ^/wths of his military retirement benefits to appellant. He bases his rule on the Supreme Court’s decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). Appellant opposed this rule, citing Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981), as standing for the proposition that nothing in McCarty, supra, suggests the Supreme Court therein intended to invalidate, or otherwise render unenforceable, prior valid and subsisting state court judgments. Paraphrased, Erspan, supra, stands for the proposition that prior valid subsisting state court judgments are res judicata. The trial court agreed with appellee’s contention, ordering the termination of military retirement benefits to appellant. From this judgment, she appeals.

The issue presented is whether a prior judgment awarding a percentage of a for-me" husband’s military retirement benefits to a former spouse is entitled to res judicata effect.

Our learned brethren from the Third Circuit, when faced with the identical issue in Mai v. Mai, 419 So.2d 1251 (La.App. 3rd Cir.1982), concluded that the prior property partition judgment which included a percentage of her former husband’s military retirement benefits was entitled to res judi-cata effect. We agree with their conclusions therein and adopt their reasoning.

Under the holding of Mai, supra, we must first determine whether this matter meets the requirements of res judicata as provided in L.S.A.-C.C. 2286 us follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

In the matter sub judice, we must determine if: (1) the thing demanded is the same; (2) it is the same cause of action; (3) the demand is between the same parties, and (4) formed against each other in the same quality. With respect to the thing demanded, it was and is ^/kths of his military retirement benefits that is being sought. The cause of action was and is the determination and settlement of appellant’s right and interest in and to appellee’s military retirement benefits. The parties are the same as in the prior litigation and formed against each other in the same quality. Appellant having met her burden, we next look to see whether appellee falls within any exception to the doctrine.

Appellee cites Lovell v. Lovell, 378 So.2d 418 (La.1979), as standing for the proposition that certain factors will determine whether or not a decision should be given retroactive effect, to-wit:

“In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).”

However, Justice Rehnquist in Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), stated that “the res judicata consequences of a final, unappealed judgment on the merits [are not] altered on a legal principle subsequently overruled in another case.” Citing this as authority for its decision in Wilson v. Wilson, 667 F.2d 497 (5th Cir.1982), the Fifth Circuit, when considering the res judicata effect of a prior judgment awarding a percentage of military retirement benefits to a divorced spouse, held that they were bound by Federated Department Stores, Inc., supra, and their own decision in Erspan, supra. We find this logic sound in light of Congress’ latest enactment concerning this subject. (See Uniformed Services Former Spouses’ Protection Act pf 1982, Pub.L. No. 97-252, 96 Stat. 730 (1982)).

Public Law 97-252, Title X, Section 1408’s legislative history specifically states that Congress has provided that the Supreme Court’s decision in McCarty, supra, is not to be given retroactive effect. Therefore, the prior judgment awarding appellant ^/oiths of appellee’s military retirement benefits is res judicata to any subsequent claim.

For the foregoing reasons, we find the matter before us is res judicata and reverse the trial court’s ruling in favor of John M. Cox. Judgment is therefore rendered in favor of Mrs. Cox, reaffirming her right and interest to “/wths of all past, present, and future military retirement benefits of her former husband. Appellee is to pay all costs.

REVERSED.

      . In McCarty, supra, the Supreme Court considered military retirement benefits to be reduced compensation for reduced current services. As such, military retirement benefits would be analogous to wages earned after separation or divorce, therefore separate property. The Court found McCarty, supra, removed the wife’s entitlement to her husband’s retirement pay and thus pre-empted Louisiana Community Property Law. Thus, the wife was determined not to be entitled to any interest in future military retirement pay received by her former husband.

      . Although the magic words “res judicata” were not used by appellant, such doctrine has been pled. Appellee recognized this fact in his brief wherein he states appellant bases her appeal on res judicata. L.S.A.-C.C.P. 1005 requires a defense of res judicata to be affirmatively set forth. See generally Hancock v. Lincoln American Insurance Company, 278 So.2d 561 (La.App. 1st Cir.1973), writ denied, 281 So.2d 754 (La.1973). This requirement being liberally construed, Bank of Coushatta v. Evans, 313 So.2d 644 (La.App. 2nd Cir.1975), we find such doctrine has been pled.


author: PONDER, Judge.

text:
    Heirs of Eddie W. BERGERON v. Urbain FOURNIER.
    No. 82 CA 0225.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      Randall Alfred, Houma, for plaintiff and appellee.
    David M. Richard, and Leslie J. Clement, Jr., Thibodaux, for defendant and appellant.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

Defendant appealed from the judgment fixing the boundary between his property and that of the plaintiffs.

The issues are validity of the court-appointed survey, acquisitive prescription, and costs.

We amend and affirm.

Plaintiffs have title to the northwest quarter of the southwest quarter of Section 26, Township 17 South, Range 18 East, in Terrebonne Parish. Defendant has title to the eastern half of the southwest quarter of the same section.

Upon plaintiffs’ request for the appoint ment of a surveyor, William Clifford Smith, a registered civil engineer and land surveyor, was ordered by the court to make a survey.

Defendant filed a peremptory exception of prescription claiming ownership of additional property located to the west of his tract and included in plaintiffs’ title. The exception was referred to the merits.

After the trial, the court denied defendant’s peremptory exception and fixed the boundary according to the Smith survey. Defendant was assessed with costs.

Defendant claims that the survey was not performed by the court-appointed surveyor.

The testimony shows that Smith delegated to Stanley Marchand the field work of conducting the survey. Marchand has been employed with Smith’s firm since 1958 and has conducted over four hundred surveys, but is not a registered civil engineer or land surveyor. Marchand performed the research field work and made the calculations for the survey. Every aspect of work, however, was supervised and reviewed by Smith, who made changes and corrections where necessary before he approved and signed the proces verbal. Smith and Mar-chand both testified that the survey was done according to prevailing practices in the surveying profession.

Defendant also asserts that only one proven section corner was determined in the survey and that no attempt was made to locate the other corners.

It is the duty of the surveyor to retrace prior government surveys in order to establish original section comers and lines. Cheramie v. Vegas, 194 So.2d 189 (La.App. 1st Cir.1966), writ refused 199 So.2d 918 (La.1967).

Marchand testified that he was able to find two of the four original government monuments in Section 26, but that only the southeast corner marker was a proven government monument. The corner was determined by retracing a survey done by the firm in the 1930’s which incorporated a government survey in 1855. Extensive work has been performed in this particular township and around the properties involved. Both Marchand and Smith were convinced that the southeast corner monument was a proven government corner.

Having determined the proven government monument, Marchand used the southeast corner of Section 26 as the starting point in the survey. While he did not reconstruct all of Section 26, he did determine the south line. He then established the boundary between plaintiffs’ and defendant’s tracts.

Smith testified that it is not a generally accepted practice to reconstruct an entire section on sight because it is physically and economically unfeasible. Instead the calculations are made on paper. Smith stated that sections are not always perfect to right angle and therefore the four comers of a section have to be established so that they fit within the township. Thése calculations were made in the present case.

We find no error in the trial court’s finding that the court-ordered survey and process verbal were consistent with legal requirements and performed in accordance with prevailing standards and practices.

Defendant also asserts ownership of property in addition to that described in his title.

LSA-C.C. art. 794 provides:

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

There is conflict in the testimony. A barbed wire fence presently stands about 100 to 110 feet west of the boundary established by the Smith survey. The fence runs in a north/south direction over the length of plaintiffs’ property according to their title. Defendant asserts that he and his ancestors in title have possessed up to this fence for more than thirty years.

Defendant’s witnesses testified that the fence was originally built around 1950 or 1951, and that prior to that time a headland, or turn row, existed in the same location. The fence has remained standing except for a period of about five years between 1964 and 1969 when both plaintiffs’ and defendant’s properties were leased to Homer Bourque. During the leases, a large portion of the fence was removed so that Bourque could farm across both tracts. A particular post was left in place to mark a reference for the fence line and the fence was rebuilt in the same location immediately after the leases expired.

Plaintiffs’ witnesses testified, however, that the fence built in 1969 was the original one.- A headland had existed in the past, but it was close to the Smith survey line. One of Eddie Bergeron’s sons stated that when Bourque leased the lands, this headland was destroyed and when the existing fence was built a new headland was created along that line.

Plaintiffs also introduced the testimony of Dr. John Green, an expert in botany, who testified that he found that part of the fence had been attached to trees along the fence line. Dr. Green took a core sample from one tree in which fence wire was deeply imbedded, examined the amount of growth around the wire and determined that the fence was no more than twelve years old.

The trial court determined that the fence did not exist prior to 1969. We find no error. Furthermore, there was no visible boundary for five years when the two tracts of land were leased.

Finally, defendant alleges that the trial court erred in assessing him for all costs, including the cost of the survey and expert witness fees.

LSA-C.C. art. 790 provides that when a boundary is fixed judicially, court costs are taxed in accordance with the rules of the Code of Civil Procedure. LSA-C.C.P. art. 1920 permits an equitable assessment of costs.

The Comments to Article 790, effective in 1978, indicate that the provision was not intended to change prior law. Under former law, the cost of a survey in a boundary dispute was generally shared equally by the parties involved. Young v. Morvant, 358 So.2d 1292 (La.App. 3rd Cir.1978). It is still a general rule that costs should be equally divided since the fixing of a boundary is of benefit to both parties in a boundary action. Smith v. Overton, 417 So.2d 872 (La.App. 1st Cir.1982).

The trial court gave no written reasons for its judgment regarding costs and the record contains no evidence justifying a departure from the general rule. We therefore amend the judgment and assess all costs equally.

For the above reasons, the judgment , of the trial court is amended as to costs, and affirmed in all other respects.

AMENDED AND AFFIRMED AS AMENDED.

      . LSA-C.C.P. art. 3692:
      “The court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties.”

      . LSA-C.C. art. 790:
      “When the boundary is fixed extrajudicially costs are divided equally between the adjoining owners in the absence of contrary agreement. When the boundary is fixed judicially court costs are taxed in accordance with the rules of the Code of Civil Procedure. Expenses of litigation not taxed as court costs are borne by the person who has incurred them.”

      . LSA-C.C.P. art. 1920:
      “Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”


text:
    James A. BARBER, Jr. v. YAGO ENTERPRISES, LTD., et al. YAGO ENTERPRISES, LTD., et al. v. James A. BARBER, Jr.
    Nos. 82 CA 0229, 82 CA 0230.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rehearing Denied Feb. 17, 1983.

      Martin A. Schott, Baton Rouge, for plaintiffs-appellees Yago Enterprises, Ltd., et al.
    Curtis K. Stafford, Baton Rouge, for defendant-appellant James A. Barber, Jr.
    Before PONDER, SAVOIE and ELLIS, JJ.
   PONDER, Judge.

James Barber, plaintiff in one suit and defendant in a consolidated case, appealed the trial court’s judgment ordering him to pay damages and attorney’s fees and refusing him recovery for the breach of a purchase agreement on a house.

The issues on appeal are the breach of the purchase agreement and damages.

We reverse and render.

James Barber and Yago Enterprises, Ltd., entered into a purchase agreement of a house already being constructed. The parties also entered into an “agreement to occupy” which allowed James Barber, the buyer, to move into the house prior to the closing. James Barber deposited $500.00 under the two agreements.

Barber refused to go through with the sale on April 15th, saying that certain defects in the house had not been corrected. He and Dr. Santiago Vilas, the vice-president of Yago, on April 18th, entered into a subsequent written agreement that eight listed defects would be corrected by April 25, 1980. Both parties testified that they intended the sale to take place on the 25th, after the defects were corrected.

Barber filed suit for Yago’s failure to correct the defects, breach of the purchase agreement, the return of his deposit and attorney’s fees. Yago sued Barber for rent during his occupation of the house, depreciation of the value of the house, the costs of repairs necessitated by Barber’s occupancy and attorney’s fees. The two suits were consolidated.

The trial judge, in written reasons, found that Barber breached the purchase agreement when he refused to go through with the sale, because the list of defects had been “substantially completed,” because the remaining defects were not substantial when compared to the overall value of the home, and because he had some alternative remedies, especially an. action in redhibition. Yago was awarded rent in the amount of $26.35 per day during Barber’s occupancy, damages for the cost of repairs to carpet, formica, and for the replacement of locks, the interest Yago paid on the construction loan from the date Barber moved out until it was sold to a third party, and attorney’s fees in the amount of $1500.00. Barber’s deposit of $500.00 was to be credited.

Barber argues that because he was entitled to inspect the premises and have the Seller correct any defects under the purchase agreement and because Yago did not correct the punch list items of the April 18th agreement, Yago breached the agreement, giving Barber the right to avoid the sale. We agree.

Barber proved the existence of defective craftsmanship in the sheetrock work on the wall of the den and a leak in the fireplace which allowed moisture to get in the surrounding carpet. These defects existed while Barber occupied the house and after-wards when it was sold to a third party.

Although the trial judge stated that Barber had other available remedies to correct the problems, such as an escrow account to remedy the defects, we find that Barber was not obligated to accept some other remedy under the purchase agreement. Yago Enterprises was obligated to remedy the defects promptly and breached the terms of the purchase agreement in failing to do so. It also breached the April 18th agreement. Barber was justified in not going through with the purchase agreement.

The trial court erred in using the standard of “substantial completion,” which is appropriate for construction contracts. Barber had no input on the selection of the lot or house plans and specifications. Yago put the house on the market with the intention of selling an “existing thing.” The parties did not intend to contract for the “undertaking of a building or a work.” Louisiana Civil Code Article 2756. See Hermeling v. Whitmore, 140 So.2d 257 (La.App. 1st Cir.1961). The subsequent “punch-list” agreement was an attempt to remedy the problems of the purchase agreement, but cannot be classified as a construction contract.

Contradictory testimony was given concerning the agreement to occupy. Barber testified that the agreement was brought to him by his real estate agent and he filled in the form allowing him to occupy the house at no cost. Dr. Vilas testified that the terms of the agreement as indicated by an added handwritten clause, required the buyer to pay rent based on the per diem interest paid by the seller on the construction loan. There is no testimony as to who added the handwritten words. The trial judge believed the testimony of Dr. Vilas and awarded an amount for rent. There was never a “meeting of the minds” between the parties and we find that the “agreement to occupy” never came into existence. However, rent was properly awarded, because otherwise Barber would have been “unjustly enriched” by being allowed to occupy the premises at no cost without going through with the sale. Louisiana Civil Code Article 1965. See Blair v. Diaz, 342 So.2d 1237 (La.App. 4th Cir.1977), writ denied, 345 So.2d 59 (La.1977), Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir.1975), writ denied, 318 So.2d 46, 48 (La.1975). The figure of $20.00 per day for rent on a quasi-contract basis, is a reasonable figure.

The purchase agreement states only that the deposit is not earnest money. Also, Dr. Vilas specifically testified that he was not suing for a forfeiture of the deposit. We find that Barber is entitled to a return of his deposit.

We agree with the trial court’s ruling that Barber should be responsible for the damage incurred while he occupied the house. This includes $160.00 for the replacement of formica stained by acid evidently used by a cleaning crew sent out by purchaser’s real estate agent, $140.00 for the replacement of stained carpet and $40.00 for the installation of new locks due to Barber’s failure to return the keys.

Since Barber was justified in not going through with the agreement, the award of the additional amount of interest Yago was required to pay on the construction loan is reversed.

The purchase agreement called for reasonable attorney’s fees to be assessed against the defaulting party. We award Barber $2500.00 in attorney’s fees. An expert witness fee of $150.00 is affirmed.

For these reasons, the trial court’s judgment is reversed and Barber is awarded the return of his $500.00 deposit and $2500.00 in attorney’s fees. This figure is to be offset by $340.00 in damages, and $1080.00 rental at $20.00 per day for the period of occupancy from March Í6,1980 to May 8,1980. All costs are assessed against Yago.

REVERSED.

      . This finding is in accord with an oral finding of fact made by the trial judge after the case had been presented.

      . The purchase agreement stated: “Seller agrees to maintain premises in present condition and that all heating/air conditioning, plumbing, built-in appliances included in the sale and electrical systems are to be in working order at the time of Act of Sale, unless otherwise provided herein. Purchaser reserves the right to inspect the premises prior to Act of Sale, and any defect discovered by said inspection shall be promptly repaired by Seller, at Seller’s expense.”

      . La. Civil Code Article 2756
      To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.

      . The agreement to occupy stated:
      “Purchaser agrees to pay _0_ per day for the right to occupy.” However, a line was drawn through the “0”, and underneath, in parentheses, was written “based on interest paid by seller.”

      . La. Civil Code Article 1965.
      The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim, of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.

      .The subsequent buyer of the house paid $20.00 per day rental prior to the sale.