author: COLE, Judge. ELLIS, Judge,

text:
    Griffin F. PHILLIPS v. STATE of Louisiana, THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13821.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      James A. Wood, Baton Rouge, for plaintiff-appellee Griffin F. Phillips.
    John W. King, Asst, to Gen. Counsel, Louisiana Dept, of Transp. & Development, Office of Highways, Baton Rouge, for defendant-appellant State of Louisiana thru the Dept, of Transportation & Development.
    Before ELLIS, COVINGTON, LOTTINGER, CHIASSON, EDWARDS, PONDER, LEAR, COLE and WATKINS, JJ.
   COLE, Judge.

This is a suit for damages for personal injuries suffered by Griffin F. Phillips when the van he was driving hit a pothole in the road, went out of control and struck a tree. Defendant is the State of Louisiana, which was responsible for maintaining State Highway 64, where the accident happened. After trial on the merits, judgment was rendered in favor of plaintiff and defendant has appealed. We reverse.

Plaintiff, a deputy sheriff, was operating a van belonging to the sheriff of East Baton Rouge Parish, and was engaged in answering a call. He was driving at about 45 or 50 miles per hour when he observed a large pothole, about four and one-half feet in diameter and seven inches deep, immediately in front of him. Because there was no shoulder to his right, and traffic approaching from the other direction, he testified he had no alternative but tc hit the pothole. He stated as a result of the impact the steering wheel was torn from his grasp, the van veered to the right into the ditch and struck a tree causing his injuries.

The issue presented is whether plaintiff, a deputy sheriff, has a right of action against the State of Louisiana for tort damages, or whether his exclusive remedy is for workmen’s compensation.

Although the peremptory exception, raising the objection of no right of action, is not found in the record, the Department’s portion of the pre-trial order raises the question of workmen’s compensation as plaintiff’s exclusive remedy. The pre-trial order controls the issues to be presented at trial. La.Code Civ.P. art. 1551. The trial transcript does reflect the peremptory exception raising this issue was orally argued resulting in a ruling favorable to the plaintiff.

The Department has filed the peremptory exception, raising the objection of no right of action, in this court. The case had been submitted for decision October 24, 1980, and the exception was filed November 12, 1980. Ordinarily such an exception would not be heard because it was not filed prior to submission. La.Code Civ.P. art. 2163. The existence of no right of action may be noticed by the court on its own motion however, so we will deal with the issue. La.Code Civ.P. art. 927.

The Department urges the plaintiff, as a deputy sheriff, is an employee of the State, and as such his recovery is limited to workmen’s compensation, citing R.S. 23:1032; Foster v. Hampton, 381 So.2d 789 (La.1980) and Michaelman v. Amiss, 385 So.2d 404 (La.App. 1st Cir. 1980). These cases both involve tort suits against the State for acts of a deputy sheriff causing injury. Here, the deputy sheriff sustained the injuries and brings the action against the State for primary fault on the part of the State. In Foster and Michaelman, a deputy sheriff is held to be an employee of the State.

In prior jurisprudence dealing with the applicability of workmen’s compensation to deputy sheriffs, deputy sheriffs have been found to be public officers of the State rather than employees, and, as such, not covered by workmen’s compensation. Richardson v. Heyd, In and For Parish of Orleans, 278 So.2d 167 (La.App. 4th Cir. 1973); Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3d Cir. 1967); Mitchell v. James, 182 So.2d 144 (La.App. 3d Cir. 1966). We note these intermediate appellate court cases were all decided before the Supreme Court handed down Foster and Michaelman.

R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen’s compensation. It reads as follows:

“The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services, for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.” (Part emphasized added by 1977 amendment.)

In Rodrique v. Breaux, 388 So.2d 60 (La. App. 1st Cir. 1980), a suit brought by a deputy sheriff against the sheriff and his office for workmen’s compensation, after reviewing Foster and Michaelman, we held:

“The State of Louisiana, as the employer of the plaintiff, is an indispensable party to this workmen’s compensation proceeding. We remand to permit plaintiff to amend his petition to name the State of Louisiana as a party defendant and thereafter for reconsideration in light of Foster and Michaelman, supra.”

Further, we said:

“It now seems more appropriate to consider the classification of a deputy sheriff as an ‘employee’ and his apparent joint employment by two or more employers. See La.R.S. 23:1031. Cf. La.R.S. 23:1034. If a deputy sheriff is no longer to be considered a ‘public officer’ within the contemplation of Section 1034, as enunciated in prior jurisprudence, the 1977 amendment adding workmen’s compensation coverage for criminal deputy sheriffs of Orleans Parish is superfluous.”

In Michaelman, supra, we originally held (376 So.2d 1029) the State is not the employer of a deputy sheriff, finding a contrary statement by our Supreme Court in Foster, supra, to be pure dictum. The Supreme Court granted writs in Michaelman and remanded for reconsideration in light of Foster. We then said (385 So.2d 405):

“We are convinced the Supreme Court intends that a deputy sheriff be recognized as an employee of the State regardless of the factual situation.”

We now reiterate this position believing any doubt as to the status of a deputy sheriff as an employee of the State was laid to rest when the Supreme Court ordered us to reconsider Michaelman in light of Foster.

La.R.S. 23:1034 covers all state employees. The 1977 amendment specifically providing compensation for criminal deputy sheriffs for the Parish of Orleans must be construed against the background of prior court decisions declaring such persons to be public officials. We do not believe the Legislature necessarily intended, by covering Orleans deputies, to exclude all other deputies. It is more logical to believe the Legislature was mislead by the “public official” status conferred on deputies by jurisprudence, a status which we now repudiate. Logic dictates if a deputy sheriff is an “employee” of the State for purposes of respondeat superior tort liability, he is an employee for purposes of workmen’s compensation provided by R.S. 23:1034. Compensation is founded in the “employer-employee” relationship. Once established, societal interests justify the flow of compensation benefits, absent a clear statutory exclusion.

R.S. 23:1034 limits plaintiff’s remedy to one in workmen’s compensation. The tort remedy afforded generally for the particular grievance here asserted cannot be invoked by him. He is without interest to institute such a suit. The peremptory exception raising the objection of no right of action, is valid and must be maintained. See Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977).

The judgment appealed from is reversed, at plaintiff’s costs.

REVERSED.

ELLIS, J., dissents and assigns written reasons.

WATKINS and CHIASSON, JJ., dissent for reasons assigned by ELLIS, J.

ELLIS, Judge,

dissenting:

The state, through the Department of Transportation and Development argues, and the majority in this case has held, that plaintiff, as a deputy sheriff, is an employee of the state, and as such his recovery is limited to workmen’s compensation, citing R.S. 23:1032; Foster v. Hampton, 381 So.2d 789 (La.1980) and Michaelman v. Amiss, 385 So.2d 404 (La.App. 1st Cir. 1980). These cases both involve tort suits against the state for acts of a deputy sheriff causing injury. For the purposes of respondeat superior, a deputy sheriff is held to be an employee of the state.

In cases dealing with the applicability of workmen’s compensation to deputy sheriffs, they have been found to be public officers of the state rather than employees, and, as such, not covered by workmen’s compensation. Johnson v. Northern Assurance Co. of America, 193 So.2d 920 (La.App. 3rd Cir. 1967); Mitchell v. James, 182 So.2d 144 (La.App. 3rd Cir. 1966).

R.S. 23:1034 deals specifically with public employees and sets out those who are to be covered by workmen’s compensation. It reads as follows:

“The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services, for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.”

In Rodrigue v. Breaux, 388 So.2d 60 (La. App. 1st Cir. 1980), this court declared deputy sheriffs of all parishes to be covered by workmen’s compensation, and that the legislation to the contrary is “superfluous.” The court is not at liberty to ignore acts of the legislature, Article 13, Civil Code, nor to correct supposed errors which cause no ambiguity. Rada v. Administrator, Div. of Emp. Sec., State, D. of L., 319 So.2d 460 (La.App. 4th Cir. 1975), writ denied. In my opinion, these rules of statutory interpretation, including the legal maxim that the inclusion of the one operates the exclusion of all others, mandate the reversal of Ro-drigue v. Breaux, supra, insofar as it holds that all deputy sheriffs are covered by workmen’s compensation under R.S. 23:1034.

I therefore dissent.

      . We surmise the pleading was filed in the companion suit which was consolidated with this one for purposes of trial. Consolidation for trial purposes does not obviate the necessity to file such pleadings in the separate records, even though they are captioned with the title of both actions. The companion suit was dismissed and no appeal was taken.

      . The relevant provision is R.S. 23:1034, specifically dealing with public employees.

      .In disagreement with this result is Malone & Johnson, Louisiana Workers' Compensation Law and Practice, Section 98, (2d ed. 1980). The writers outline a rational basis upon which a deputy should be classified as an “employee,” as distinguished from a “public official.” They reason the exclusion of deputies from compensation tends to defeat the broad purpose of the Act, and caution: “The decisions with respect to deputy sheriffs... should be examined with care.”

      . Cf. Carmouche v. Oubre and the State of Louisiana, 394 So.2d 805 (La.App. 4th Cir. 1981), Docket Number 11,590, rendered February 5, 1981, as regards the joint employment concept. Carmouche involves an alleged tort by a deputy sheriff, holding in part that under Foster, the deputy sheriff is not an employee of the sheriff. See also, La.R.S. 33:2218.8.

      . A collateral issue, whether or not the State of Louisiana possesses a dual capacity permitting a person employed in one of its departments to sue the State in tort because of legal fault emanating from a separate department, was treated by us in Wright v. Moore, 380 So.2d 172 (La.App. 1st Cir. 1979). See also, Developments in the Law, 1979-1980 — Workers’ Compensation, 47 La.L.Rev. 557, 575-578 (1981).


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Mildred Crockett DELIBERTO v. Charles Joseph DELIBERTO, Sr.
    No. 13866.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      L. B. Ponder, Jr., Amite, and Frank Koles, Greensburg, for plaintiff.
    John D. Kopfler, Hammond, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On February 24, 1977, plaintiff, Mildred Crockett Deliberto, brought suit against her husband, Charles Joseph Deliberto, Sr., seeking a separation from bed and board and, among other things, a partition.

Following trial, judgment was signed decreeing certain Tangipahoa Parish real estate, recorded in the name of defendant, to be his separate property. On that property stood the home of the parties, constructed during the existence of the community of acquets and gains. The trial court held that Charles Deliberto’s separate estate was indebted to the community in the amount of $3,264.44, the enhanced value of separate property.

Asserting that the enhanced value had been set too low, plaintiff applied for a new trial. Over defendant's objection, a new trial was granted solely for the purpose of determining enhanced value.

At the new trial, plaintiff's expert testified that the enhanced value of defendant's property was $40,830.87. Defendant's expert calculated the enhanced value of the property at $32,920.00, but maintained that since, in his opinion, the highest and best use of the property was commercial, the house had no value whatsoever as an enhancement.

Finding that there had been an increase or improvement to defendant's separate property despite the presence in the area of a number of commercial establishments, the trial court accepted the appraisal of defendant's expert and fixed the enhanced value at $32,920, subject to a credit of $6,500 for the down payment made by defendant with separate funds and subject to a further credit for all payments made by defendant since February 24, 1977, the date of separation. Defendant appeals. We affirm.

Appellant specifies that the trial court erred in 1) allowing a new trial and 2) finding the enhanced value of defendant's separate property to be $32,920.

I. NEW TRIAL

Appellant claims that plaintiff had, at the first trial, the opportunity to introduce evidence of enhanced value and that, by allowing a new trial, the district court gave plaintiff "a `second bite' at the apple."

LSA-C.C.P. Art. 1973 provides that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. A trial court has virtually unlimited discretion to order a new trial, even on its own motion, when it is convinced that a miscarriage of justice has resulted, Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962), and unless an abuse of discretion can be demonstrated, a trial court's action in granting or denying a new trial on discretionary grounds will not be reversed. Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir. 1980).

The trial court specifically found, after a contradictory hearing, that there was "good ground for" granting a new trial. Since appellant did not, as was his duty, provide either a transcript or narrative of the contradictory hearing, we can only follow the presumption that the trial court's judgment was supported by competent evidence and should be affirmed. DeLaneuvile v. Duplessis, 385 So.2d 885 (La.App. 1st Cir. 1980). We cannot, therefore, find that it was manifest error for the trial court to grant a new trial.

IL ENHANCED VALUE

It is urged that the trial court committed manifest error in finding the enhanced value of appellant's separate property to be $32,920. Three bases for this contention are offered:

1. the purported improvement failed to enhance defendant's property in any manner whatsoever,
2. there was insufficient evidence from which the trial court could find any enhanced value, and
3. the enhanced value as found was calculated improperly.

Appellant’s claims raise the issues of burden of proof, evidentiary procedure, the limits of reimbursement and manifest error. Because the case law is unclear, we deem it necessary to review the jurisprudence.

The codal law applicable to the instant case is LSA-C.C. Art. 2408 which, prior to January 1, 1980, provided:

“When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or amel-iorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

Article 2377 of the Civil Code of 1825, similar to and the predecessor of C.C. 2408, was unfortunately bereft of any formula for determining enhancement. The task for fashioning a procedure thus fell to the judiciary with the end result being a body of conflicting and unclear decisions.

Babin v. Nolan, 4 Rob. 278 (1843), held that an estimate should be placed on the value of the separate property if it were unimproved at the time of marriage or that an estimate should be made of the value at the time of dissolution, but if possible, as the property stood at the time of marriage (i. e., with or without improvements). The value with all improvements at dissolution of the community was then to be found and half the difference was owed to the spouse seeking reimbursement.

After remand, the apparent choice of initial valuations led the lower court in Babin into error. A return to the Supreme Court was necessitated. Finding that the lower court had incorrectly determined enhancement by the difference between the value at marriage and after dissolution rather than by the difference between what the property would have been worth, if unimproved, at dissolution and its actual, improved value at dissolution, the Supreme Court, in Babin v. Nolan, 6 Rob. 508 (1844), set forth four questions to be asked:

“First. What was the condition of the property at the time of the marriage? Second. What would be the value of such property at the dissolution of the community, in the state in which it was at the time of the marriage? Third. What was the real value of the said property, with all the improvements existing thereon, in the condition in which it was at the time of the dissolution of the community? Fourth. What is the difference between the two estimates?”

Babin ultimately returned to the Supreme Court and, in Babin v. Nolan, 10 Rob. 373 (1845), the court, while noting that the community was not to be repaid for the cost of improvements but for the enhancement, addressed the problem of conflicting estimates. Finding that the “evidence is so confused and unsatisfactory, that there is the greatest difficulty, if not an impossibility, of ascertaining precisely the difference in value,” the court accepted the testimony of all witnesses “notwithstanding their inconsistencies and exaggerations” and simply used the average of all values given.

The Supreme Court, in Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (1956), settled the problems of what amount of community labor, expenses or industry must be expended on separate property before reimbursement must be paid and who must bear the burden of proof in reimbursement cases. The court held that “if either husband or wife substantially contribute to the amelioration of the separate property of one of them during the marriage,” reimbursement was owed.

Regarding burden or proof, the court was explicit:

“when it is shown that community labor, expenses or industry has provided an increase to the separate property, the burden shifts to the owner of the separate property to rebut this proof and affirmatively establish that the increase is due only to the ordinary course of things, rise in values or chances of trade.” 230 La. 78, 87 So.2d at 739. Emphasis by Supreme Court.

Although the burden of proof rule laid down in Abraham is clear and based on the presumption that at the dissolution of a marriage all effects possessed by husband and wife are presumed communal, said rule has been misconstrued on numerous subsequent occasions.

In Ruffino v. Hunt, 234 La. 91, 99 So.2d 34 (1958), separate property was purchased in 1936 for $5,450. Its value in 1955 was $36,090. Nevertheless, the community was only reimbursed $6,519.38, the amount actually spent, since “there was no proof showing that the enhanced value of the separate estate resulted from other expenditures of community funds.” Misinterpreting Abraham, the court stated that defendant, seeking reimbursement for the community, had not shown “the amount of enhanced value which is attributable to the improvements rather than the general increase in real estate value.”

In Succession of Rusciana, 136 So.2d 509 (La.App. 1st Cir. 1961), the court established procedural rules requiring a spouse seeking reimbursement to the community to prove:

1) that there was enhancement of the separate property,
2) that the enhancement was made with community funds or resulted from the spouses’ joint industry, expense or labor,
3) the value of the separate property at the commencement and dissolution of the community, and
4) that the enhancement did not result in the ordinary course of events or due to the property’s normal rise in value or the chance of trade.

To the extent that Rusciana (1961) ignores the clear dictates of Abraham and attempts, in item four, to shift the burden of proof as to the reason for enhancement, it is incorrect and will not be followed.

Other cases failing to adhere to Abraham include Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir. 1976), writ denied 342 So.2d 217 (1977), and Succession of Hotard, 248 So.2d 30 (La.App. 1st Cir. 1971).

In Owens v. Owens, 259 So.2d 454 (La. App. 3rd Cir. 1972), Rusciana (1961) was criticized on another ground. The court in Owens saw no need to require a spouse representing the community to prove the value of the other spouse’s separate property at the community’s inception or suffer denial of the community claim. Such an initial value might be helpful but, where not readily ascertainable, it could be dispensed with. In such a case, enhancement was to be determined by deducting “from the actual value of the land as it existed on the date of dissolution of the community the value it would have had at that time had it not been so improved.”

In summary, a party seeking reimbursement to the community need satisfy only the requirements of Babin v. Nolan (1844), supra. Once that has been done, the party opposing reimbursement must, as required by Abraham prove that the enhancement was due only to the ordinary course of things rise in values or chances of trade, failing which the entire enhancement is owed to the community. It is an all or nothing proposition.

In determining the amount of enhancement, any reasonable method may be used, even, in difficult cases, to the extent of averaging the conflicting and exaggerated estimates of witnesses. Babin v. Nolan (1845), supra.

In the present case, appellant notes that his property expert was more experienced than appellee’s and urges that, on that basis, testimony to the effect that the family' domicile did not enhance appellant’s separate property, should be controlling.

This line of reasoning ignores the fact that appellant’s expert also testified that in February of 1977, at the time of dissolution of the community, appellant’s separate property wás worth $7,880 and had on it a structure, the family domicile, worth $32,-920.

The trial court accepted the figures given by appellant’s expert but rejected his contention that the separate property had not been enhanced. A review of the record discloses no conclusive proof that the highest and best use of the property would be commercial. A number of residences as well as commercial establishments were shown to be in the area.

The district judge considered all the facts, found enhancement and utilized the figures given by appellant’s expert. We agree with the trial judge’s conclusions.

Appellant argues that the trial court erroneously utilized the amount expended by the community rather than correctly determining enhancement. This is not so. The district judge ascertained that the unimproved separate property of appellant was worth $7,880, that, as improved, the property was worth $40,800, and that the separate property had been enhanced by $32,920 through the construction of a home. Under Babin v. Nolan (1844), this was all that was necessary. It was not error, as urged by appellant, for the trial court to then substract appellant’s down payment made with separate funds. To do sc was merely to credit defendant for his expenditure of separate funds. Nor was it error for the trial court not to determine the original value of appellant’s separate property. That determination, called for by Succession of Rusciana (1961), supra, is unnecessary to calculate enhancement and is not required by Babin v. Nolan (1844), which controls.

Appellant’s objection that plaintiff failed to show that the enhancement was not caused by the ordinary course of events is useless since Abraham v. Abraham, supra, places this burden of proof on the party seeking to deny reimbursement, in this case, appellant, who has failed to shoulder his burden.

III. ENHANCEMENT LIMIT

Not raised in brief by appellant is the question of whether a community may, in fact, ever be reimbursed for more than the actual sums expended on behalf of the separate property. Article 2408 includes no statutory limitation of recovery. Two old cases, however, Depas v. Riez, 2 La.Ann. 30 (1847), and Succession of McClelland, 14 La.Ann. 762 (1859), stand for the proposition that

“Whatever be the present value of the improvements, the recompense due the community for them cannot exceed their costs.” 2 La.Ann. 30 at 44.

Scholarly notice has been taken of this jurisprudential limitation on reimbursement. The rule’s ostensible ' justification has been that during the community’s existence, the community either benefits from the use of, or enjoys the profits from, the enhanced separate property.

There are two major flaws in the logic of Depas. First, in the event that the separate property is enhanced but is neither income producing nor used by the community, all defense of the rule as equitable must fall. Second, Art. 2408 admits of no limitations on reimbursement.

In Winston v. Winston, 130 So.2d 165 (La.App. 2nd Cir. 1961), the court noted the apparent conflict between early cases limiting reimbursement and subsequent cases failing to even note such a rule, but decided it did not have to resolve the conflict.

A decision clearly contrary to the rule of Depas was Palama v. Palama, 323 So.2d 823 (La.App. 4th Cir. 1975), writs denied 326 So.2d 381 (two cases) (1976). In Palama, $15,000 in community funds were used to construct improvements on the husband’s separate property. Insurance on the improvements was paid for with community funds. When the improvements were destroyed by fire, $25,000 in insurance benefits were paid. The court found that the improvements, although destroyed, had enhanced the separate property by $25,000 and therefore credited the community with all the insurance proceeds, a sum $10,000 greater than that actually spent by the community.

Professor Robert A. Pascal, commenting on Palama in The Work of Louisiana Appellate Courts for the 1975-1976 Term, Matrimonial Regimes, 37 La.L.Rev. 358, 371-372 (1977), noted that

“as long as an ‘improvement’ to a separate asset is made through the expenditure of the spouses’ energies or common funds, the owner of the separate asset owes the other spouse one-half the value of the improvement at the moment of the dissolution of the regime, whether that value is greater or less than the value of the energies or funds originally expended.”

Recent commentary, statutory wording, the decisions of Abraham and Palama, and the absence for many years of any case applying the Depas rule, make it evident that the limitation of reimbursement rule laid down by Depas and Succession of McClelland has either been overruled sub silentio or, at a minimum, has fallen into disuse.

That providing for reimbursement unfettered by limitation is the correct position is buttressed by jurisprudence from other community property jurisdictions. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (Tex.1935); Pruske v. Pruske, 601 S.W.2d 746 (Ct. of Civ.App. of Tex.1980); Logan v. Barge, 568 S.W.2d 863 (Ct. of Civ.App. of Tex.1978); Cockrill v. Cockrill, 124 Ariz. 50, 601 P.2d 1334 (Ariz.1979); Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (Idaho 1976); Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (Nev.1973).

We conclude that in the present case, the former Deliberto community is to be credited with the entire amount of the proved enhancement — $32,920, subject to the appropriate credits to Mr. Deliberto’s separate estate.

IV. PRORATED ENHANCEMENT

Appellant’s final contention is that, conceding the enhancement value to be $32,920, an apportionment of the increase should be made between the community and appellant’s separate estate according to the investment each has made. Because the community investment over the years amounts to only $2,564 while appellant’s is $6,500, appellant would be credited with 71.7% of the enhancement, or $23,604, while the community would be left with 28.3% or $9,316.

This contention cannot serve to overcome the clear dictates of LSA-C.C. Art. 2408.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by Charles Joseph Deliberto, Sr.

AFFIRMED.

      . Plaintiff answered the appeal seeking to have the higher appraisal of her expert substituted for that adopted by the trial court. Since the answer was filed more than fifteen days after the record was lodged in this court, it will not be considered. LSA-C.C.P. Art. 2133. Mitchell Brothers v. Dinvaut, 374 So.2d 199 (La.App. 4th Cir. 1979), writ denied 376 So.2d 1271 (1979).

      . As a further ground for sustaining the trial court's action, we note that in other cases involving reimbursement to the community, remand for the taking of evidence has been permitted. Succession of Rusciana, 232 La. 1073, 96 So.2d 1 (1957); Succession of Singer, 208 La. 463, 23 So.2d 184 (1945).

      . Had the facts operative in the present case arisen subsequent to January 1, 1980, there would be no issue. Article 2408 was repealed effective January 1, 1980, and replaced by Articles 2364, 2366 and 2368. Acts 1979, No. 709. The new article 2366 provides:
      “If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.”
      Under Article 2366, the measure of reimbursement has been changed from one-half the enhanced value to one-half the community funds used. Essentially, the community would be making a potentially long term interest free loan.
      It is noteworthy that, for another reason, the present conflict might not have existed after January 1, 1980. LSA-C.C. Art. 491, as of January 1, 1980, would have permitted the spouses to have established ownership of the family domicile separate from the husband’s land.

      . Article 2377 provided:
      “When the hereditary property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labour, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

      .That enhancement and not the cost of improvements is the measure of recovery is clear. Abunza v. Olivier, 230 La. 445, 88 So.2d 815 (1956); Succession of Boyer, 36 La.Ann. 506 (1884). Furthermore, minor repairs, particularly including the use of such items as nails, staples, screws, lumber and fence wire, are not to be considered as “improvements of a substantial, permanent character” requiring payment. Courrege v. Colgin, 51 La.Ann. 1069, 25 So. 942 (1899); Succession of Boyer, supra. When, however, repairs made at cost to the community result in enhanced value to separate property (presumably because permanent improvements have been made), reimbursement is owed. Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (1949).

      . Use of the average of all values testified to was again approved in Childers v. Johnson and Smith, 6 La.Ann. 634 (1851). See also Giamanco v. Giamanco, 131 So.2d 159 (La.App. 3rd Cir. 1961).

      . LSA-C.C. Art. 2405.

      . Rusciana (1961), by adopting part of the confusing language found in Babin v. Nolan (1843), had actually added the rule criticized in Owens to the basic requirements laid down in Babin v. Nolan (1844), supra. Owens, therefore, constituted no jurisprudential innovation; to the contrary, it was a return to long established law.

      . In a recent case, Ware v. Ware, 365 So.2d 842 (La.App. 4th Cir. 1978), writ denied 368 So.2d 144 (1979), the court, in allowing the community only the $8,700 it had advanced on the husband’s separate property, stated:
      “Assuming the property was the husband’s separate property, that is the maximum reimbursement for enhancement that La.C.C. 2408 allows.”
      It is not clear from this statement whether the court meant that the community had failed to prove enhancement beyond $8,700 or whether, regardless of the amount of enhancement, $8,700 was the limit of reimbursement due to the holdings of Depas v. Riez and Succession of McClelland, supra.

      . Bartke, Yours Mine and Ours — Separate Title and Community Funds, 21 Baylor L.Rev. 137, 148-150 (1969); Comment, Reimbursement of the Marital Community, 37 Tulane L.Rev. 506 (1963); Huie, Separate Claims to Reimbursement from Community Property in Louisiana, 27 Tulane L.Rev. 143, 214-217 (1953).

      .Citing Abraham v. Abraham, supra, the court stated that “recovery is not determined on the basis of the amount expended but is limited to the enhanced value resulting from their expenditures.” It is noteworthy that the husband in Palama, failing to prove that the $10,000 increase was due only “to the ordinary course of things, to the rise in the value of property, or to the chances of trade,” suffered the consequence of having the entire enhancement credited to the community.

      . To the extent that Hale v. Hale, 557 S.W.2d 614 (Ct. of Civ.App. of Tex. 1977), and Tester v. Tester, 123 Ariz. 41, 597 P.2d 194 (Ct. of App. of Ariz.1979) differ from the prevailing jurisprudence in their respective jurisdictions, we note that both cases were decided by lower courts in the face of Supreme Court decisions not calling for reimbursement limitations.


author: ELLIS, Judge:

text:
    George PETERS, Husband of and Doris Peters, and George Peters Enterprises v. LIFE GENERAL SECURITY INSURANCE COMPANY, a Subsidiary of Louisiana General Services, Inc.
    No. 13977.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Keith M. Whipple, Houma, for plaintiff and appellee.
    William C. Shockey, Baton Rouge, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit by George F. Peters, Sr., doing business as George Peters Enterprises, against Life General Security Insurance Company, for benefits allegedly due under a group hospital policy. After trial on the merits, judgment was rendered in favor of plaintiff for $26,150.08 in medical benefits, $26,150.08 as a penalty, $7,500.00 as attorney’s fees, and $2,000.00 as death benefits. Defendant has appealed.

The record reveals that plaintiff was che owner of George Peters Enterprises, an accounting, tax and bookkeeping firm. On July 12,1976, plaintiff applied to defendant for a group hospitalization and group life insurance policy for the employees of George Peters Enterprises, including himself. The insurance was placed in effect as of July 15, 1976. At that time, there were three employees in the group, including Mr. Peters, who was the only member of the group to take insurance covering his dependents. During the life of the policy, the group was never greater than four, and at no time did more than half of the members with eligible dependents elect to have the insurance cover their dependents.

In October, 1977, Mrs. Doris Peters, plaintiff’s wife, was found to have cancer, and began a prolonged period of treatment, and hospitalization, which ended with her death in November, 1979, during which time, considerable medical expenses were incurred.

Life General paid all claims for medical expenses relative to Mrs. Peters’ illness through the end of the policy period, July 15, 1978. However, on August 9, 1978, it notified Mr. Peters as follows:

“With reference to Dependent Life and Health, all such coverage will cease midnight, September 14, 1978, as your agreement with the Blue Flame Trust specifies that at least 60% of all eligible employees with eligible dependents must be insured with respect to those eligible dependents. LGS will not honor claims incurred on or after midnight September 14, 1978.”

Thereafter, Mr. Peters attempted, without success, to have the dependent insurance continued. He paid all premiums due on September 15, 1978, and then ceased payment. On December 4, 1978, he was notified by mail that, because of non-payment of premiums, all coverages for the group were terminated effective midnight, October 14, 1978.

This suit was filed on November 16,1978, seeking to have the policy declared to be in full force and effect. After Mrs. Peters’ death the petition was amended to pray for all medical expenses due under the policy together with penalties and attorneys’ fees.

The policy herein was for a term of one year, with a provision for automatic renewal on the anniversary date unless the policyholder properly notified the insurer that the policy was to be terminated. Premiums were paid monthly on the 15th day of each month. The policy further provided that it would terminate on the failure of the policyholder to make any premium payment when due, subject to certain grace period provisions, and that no benefits would be paid after termination of the policy for non-payment of premiums.

The insurer further reserved the right to terminate the insurance relative to dependents “if less than 60% of the eligible employees having eligible dependents have been reported for insurance with respect to such dependents.”

As pointed out above, the defendant insurer attempted to terminate plaintiff’s dependent coverage on the ground that less than 60% of the eligible employees with eligible dependents were insured with respect to those dependents. Of course, as pointed out above, this condition had persisted throughout the life of the policy, with the knowledge and acquiescence of the defendant. We do not believe that it can form a valid basis for termination of the dependent coverage after the inception of Mrs. Peters’ illness.

Defendant further contends that, under the express terms of the policy, no benefits need be paid if any premium is not paid on its due date. It is undisputed that no premiums were paid after September 15, 1978, and that all covered medical expenses were paid through October 14,1978, the day on which defendant contends that Peters’ participation in the policy was terminated. This contention is also without merit. In Wharton v. Louisiana Hospital Service, Inc., 183 So.2d 133 (La.App. 1st Cir. 1966), in dealing with a situation in which premiums were not paid after an illness had arisen while the policy was in effect, we said:

“However, once liability of the insurer for an assumed or covered risk is established, the obligation to continue payment of benefits in accordance with the policy provisions governing same, becomes fixed and constant. Once the liability of the insurer attaches, or, stated otherwise, upon maturity of the insured’s claim while the contract is in force, public policy demands that the vested right of the insured to uninterrupted receipt of benefits be unaffected by subsequent termination as will hereinafter appear.”

We think that this case is governed by the above legal and policy considerations, and that plaintiff is entitled to all benefits provided by the insurance policy, until the death of his wife, despite the policy provisions to the contrary.

As to the penalties, defendant argues that the trial court applied the wrong statute in assessing the amount thereof. The trial judge assessed a penalty of 100% of the amount due under R.S. 22:657, which applies to health and accident policies. Defendant argues that a hospitalization policy is not a health and accident policy, and that the 12% penalty prescribed by R.S. 22:658 is applicable, citing Tabb v. La. Health Services & Indem. Co., 361 So.2d 862 (La.1978), which so holds. However, the Tabb case has been reversed as to that holding in Rudloff v. Louisiana Health Services & Indem., 385 So.2d 767 (La.1980), and defendant’s argument is without merit.

Defendant argues strenuously that it should not be assessed penalties since it was acting in accordance with the clear and unambiguous terms of its policy, and that its conduct could not be said to be arbitrary. Once again, we must disagree. In attempting to use a condition which had existed for the life of the policy as an excuse to avoid payment of an existing and vested claim, defendant has exhibited obvious bad faith, and we find their conduct in that respect to be so arbitrary as to subject them to the penalties provided by R.S. 22:657.

For the same reasons, plaintiff is entitled to attorney’s fees under R.S. 22:657. Defendant further argues that the award of $7,500.00 is excessive and not supported by the record. The only evidence in the record is the testimony of a practicing attorney that the one-third contingent fee charged by plaintiff’s attorney was reasonable. There is no evidence in the record as to the amount of time spent on the case by plaintiff’s attorney, and the expert witness did not review plaintiff’s attorney’s file. There is, therefore, no evidence as to the reasonable value of the services actually performed on plaintiff’s behalf by his attorney. The trial judge stated that he was not familiar with fees charged by attorneys for services in cases of this kind.

The record shows that plaintiff’s attorney engaged in correspondence with defendant before the suit was filed; filed the petition and two supplemental petitions; engaged in the one day trial of the case, at which a large number of exhibits were filed, indicating substantial pre-trial preparation; filed a post trial memorandum; argued and successfully opposed defendant’s motion for a new trial; and successfully briefed and argued the case in this court. Under those circumstances, we find the fee of $7,500.00 to be reasonable.

Since defendant assigns no further specifications of error, the judgment appealed from is affirmed, at defendant’s cost.

AFFIRMED.


text:
    Cecil REED v. The KROGER CO.
    No. 13982.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Thomas L. Mahfouz, Lippman, Mahfouz & Martin, Morgan City, counsel for plaintiff.
    Robert M. Mahony, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, counsel for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries brought by Cecil Reed against The Kroger Company. Plaintiff alleges that he was injured when he slipped and fell while in defendant’s store. After trial on the merits, judgment was rendered dismissing plaintiff’s suit and he has appealed.

The facts of the case were summarized by the trial judge as follows:

“A preponderance of the evidence establishes that:
“Plaintiff slipped and fell while a customer in the grocery department of defendant’s self service store on Wednesday, June 20th, 1979, in the late afternoon, while walking past the baby food display on his way to the front of the store. He fell as a result of stepping on a broken jar of baby food on the floor in the aisle or on some of the contents of the jar. He did not see it before his fall, nor did his brother-in-law who accompanied him. Plaintiff felt something under his foot as he slipped and fell. After his fall, he found glass and baby food on the back of his right arm, shoulder and on his back. This was verified by his brother-in-law. The store manager came to the scene and observed plaintiff on the floor and the broken jar near his right shoulder.
“How the broken jar came to be on the floor is unknown.
“The store is open from 7:00 AM to 10:00 PM. A cleanup crew cleans every aisle and corridor in the store between 5:00 AM and 8:00 AM daily. From opening until 1:30 PM two stock boys are assigned to the grocery department and their duties are to stock shelves and keep the aisles clean. At 1:30 PM seven stock boys come on duty in the grocery department and work there until closing. Their duties likewise are to stock shelves and keep the aisles clean. The manager or assistant manager occasionally (although on no regular schedule) walk the corridors of the store and look down the aisles for obstructions or foreign items, but this is a very cursory examination. At midday a utility clerk sweeps every aisle. No stock boys are regularly furnished mops or brooms for cleanup although these are available at the back of the store.
“On the day of the accident, Thomas Harmon was the stock boy who worked from 1:30 PM to 10:00 PM on the aisle where plaintiff fell. His usual routine, (and the one he followed on the date of the accident), requires him to begin work at 1:30 PM; take a break for a few minutes between 3:30 and 4:00 PM; work until 5:30 PM at which time he takes his lunch break; and return to work until a last break sometime between 7:30 and 9:00 PM depending on how much of his work he has accomplished. In the late afternoon of the day of the accident he stocked the cake mix display which is directly across the aisle from the baby food display where the accident happened. When he finished, and in preparation for his lunch break, he checked the entire aisle by walking its length and looking at the floor of the aisle and the shelves. He is positive that the floor was free of foreign objects of any kind. This occurred five to ten minutes before plaintiff’s accident. Mr. Harmon’s testimony is in no way impeached or discredited. He is still employed by the defendant but that, of itself, does not overcome his forthright and positive demeanor.”

The trial judge held that, since there was “positive and uncontradicted evidence” that the aisle was clean and free from foreign objects five to ten minutes before plaintiff’s accident, that the inspection and elean-up procedures usually followed by Kroger were immaterial. He stated:

“The question becomes whether or not this storekeeper in this particular incident with a positive inspection five to ten minutes before the accident in question which inspection established that the floor of this aisle was free of foreign substances has exercised reasonable care under the circumstances to keep the aisles in a safe condition for plaintiff. It is my opinion that it has. To require more, would, in effect, make the storekeeper the insurer of this customer’s safety.
“In light of the view of this particular case which I have taken, it is not necessary to determine whether the general cleanup and inspection procedures were or were not adequate, for, even if inadequate, and the negligence of the defendant thereby inferred or presumed, such negligence could not be the proximate cause of this accident due to the fact that the floor was inspected and clean five to ten minutes before the accident.”

In this court, plaintiff argues that the trial judge’s ruling is erroneous, and that he failed to follow the law applicable to cases of this type.

Since the Supreme Court case of Kavlich v. Kramer, 315 So.2d 282 (La.1975), a plaintiff in a self-service store slip and fall case need only prove that he was injured in an accident resulting from the unsafe condition of the floor or the aisle. A presumption then arises that the storekeeper was negligent in permitting the unsafe condition to exist, and the burden of proof shifts to the storekeeper to prove that he was free of negligence; that is, that the unsafe condition existed without actual or constructive notice to the storekeeper.

In most cases, the storekeeper attempts to discharge this burden by showing that his inspection and clean-up procedures are of such a nature as to insure reasonably that the floors of the aisles are free of substances and objects which might cause a customer to slip and fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Givens v. National Tea Co., 347 So.2d 1194 (La.App. 1st Cir. 1977).

In this case, the storekeeper proved by evidence satisfactory to the trial judge that the unsafe condition had existed for less than five or ten minutes. The record is devoid of any evidence that the storekeeper had actual notice of the condition, and the lapse of time between the inspection by the stock boy and the occurrence of the accident is not long enough so that the storekeeper should have discovered the dangerous condition. By proving that the aisle was clear five to ten minutes before the accident, we find that defendant has borne its burden of proof.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    Claude A. NICHOLS v. Margaret Kerry NICHOLS.
    No. 13983.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for Plaintiff and Defendant in rule appellee.
    Charles W. Seaman, Natchitoches, for Defendant and Plaintiff in rule appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment of a trial court refusing to award a former wife an executory judgment for past due child support payments, denying attorney’s fees to the former wife, and refusing to hold the husband in contempt of court for failing to make child support payments in the amount fixed in a prior judgment, the amount of payments having been made rather in a reduced amount in accordance with subsequent agreement of the parties. We affirm the judgment of the trial court.

On December 18, 1978, a judgment of divorce was issued dissolving the marriage of Claude A. Nichols and Margaret Kerry Nichols. The mother, Margaret Kerry Nichols, was granted custody of the four children born of the marriage. The husband was ordered to pay child support in the amount of $80.00 per week.

On June 21,1979, the husband filed a rule for reduction of child support as two children had attained age 18. The wife thereupon filed a rule to increase child support. The rules were fixed for hearing. Before the hearing took place, husband and wife agreed to reduce child support to $200.00 per month, beginning September 1, 1979. The husband’s attorney was to reduce the informal agreement to a written judgment and present the judgment to the court for signature.

The husband commenced making child support payments in the sum of $200.00 per month. Despite correspondence between counsel for Mr. and Mrs. Nichols, the attorney for Mr. Nichols procrastinated, and failed ever to present the judgment that counsel had agreed was to be prepared to the court for signature.

The wife then filed the rule upon which the present appeal is based seeking to make the $80.00 per week judgment for child support executory as to the difference between $80.00 per week and the $200.00 per month paid in accordance with the informal agreement, and attorney’s fees, and seeking further to have the father held in contempt of court.

As the husband and wife agreed to a reduction of child support to $200.00 per month, and as the wife accepted checks in that amount paid by the husband each month in accordance with that agreement, the wife waived the right to receive checks in the greater amount of $80.00 per week on behalf of their children. Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir. 1979); Dubroc v. Dubroc, 380 So.2d 672 (La.App. 4th Cir. 1980), affirmed 388 So.2d 377 (La. 1980).

The wife having waived child support in the greater sum, she is not entitled to attorney’s fees and the husband cannot be considered to have been in contempt of court.

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

AFFIRMED.


author: COLE, Judge.

text:
    Charles Gene ROGERS et al. v. Otis R. & Marie WILLIAMS.
    No. 13984.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Jerry Bunch, Denham Springs, counsel for plaintiffs.
    R. Neal Wilkinson, Baton Rouge, counsel for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiffs-appellees seek a declaratory judgment decreeing Charles Rogers to be the lawful owner of a certain piece of immovable property. One link in Roger’s title, an alleged dation en paiement, has been lost. The issue is whether appellees have proven by a preponderance of the evidence that the dation was in fact executed and lost. After thoroughly examining the record we conclude the trial court was not clearly wrong in ruling in appellees’ favor, therefore we affirm.

On September 28, 1970, Otis Williams borrowed $3,420.00 from Gulfco Finance Company of Livingston, Inc. (Gulfco). As security for the loan, Williams pledged a collateral mortgage note previously executed and which was, in turn, secured by a mortgage on his 6.9 acre tract of land located in Livingston Parish. Sometime in 1971 it became apparent Mr. Williams was not able to make his monthly payments, therefore Gulfco instituted foreclosure proceedings. In the meantime, a group of businessmen informed Gulfco they were interested in purchasing the property. The foreclosure proceedings were halted and Williams allegedly executed a dation en paiement whereby he transferred ownership of the property to Gulfco, in exchange for release from the debt. Appellees Jerry Bunch, Joseph DePaula and Nealious Wheat purchased the property from Gulfco, and also bought a contiguous tract from Whitney National Bank. In 1973 appellees sold the property to Charles Rogers.

In 1979 Rogers became aware of a defect in his chain of title. Otis Williams was still the record owner of the property because the dation had not been recorded. Rogers and his ancestors in title filed suit for a declaratory judgment decreeing Rogers to be the lawful owner of the property.

Evidence presented at trial established it was more probable than not that the dation was executed. Jerry Bunch, the Notary Public who executed the dation and one of the vendees of the property, testified Mr. Williams came to his office in April of 1972 and executed the dation. Bunch took the document to Gulfco to obtain the other signature and then apparently lost the entire file on the matter. He stated he had no unrecorded or unsigned copies of the document. Mr. Bunch offered into evidence a check written by him to Gulfco, for $3,560.75, the amount then owed to Gulfco by Mr. Williams. Also introduced was a check written to Whitney National Bank, signed by Jerry Bunch, in the amount of $6,700.00. This check was given as payment for the adjacent tract.

Other testimony corroborated Mr. Bunch’s statements. Mr. J. C. Guitreau, assistant manager of Gulfco at the time of the incident, testified he was aware Mr. Williams was giving the property to Gulfco. He stated he saw “the papers” on the property although he did not witness Mr. Williams signing them. Sam Farace, the manager of Gulfco, testified that sometime pri- or to the execution of the dation he sent Mr. Williams to Mr. Bunch’s office when Mr. Williams desired to make a payment on his loan. Mr. Farace recalled Mr. Bunch later delivered some papers concerning the property, signed by Otis and Marie Williams, to the Gulfco office. He signed the papers and returned them to Bunch. Although he did not witness Mr. Williams signing the paper he stated he examined Williams’ signature on the document and found it matched other samples of his signature on file.

At trial Otis Williams unequivocally denied ever having signed any document transferring ownership of his land. He further denied ever having seen Mr. Bunch or having gone to his office. He said he was living in Virginia at the time the dation was allegedly executed. He stated he had been aware foreclosure proceedings had been started but he had never been served with papers. He knew the foreclosure had been halted and assumed there was a judgment against his property with which he would have to deal if he ever wanted to sell the property. He admitted he knew he had not paid his debt to Gulfco but consistently denied any knowledge of an agreement whereby Gulfco became the owner of the property.

It is well settled in Louisiana that the transfer of immovable property must be in writing. La.Civ.Code art. 2275. (The exception is that a verbal sale is valid as between the parties, when confessed under oath, provided actual delivery has been made.) However, when a party wishes to enforce an obligation evidenced by a written instrument which has been lost or destroyed, evidence may be given of its contents. This permits the establishment of title to an immovable by proving the loss of the written conveyance. La.Civ.Code art. 2279. We find sufficient evidence to establish that the dation was executed and lost.

Aside from Mr. Bunch’s testimony, which the trial court apparently found to be credible, we are influenced by the circumstances surrounding this litigation. Mr. Williams knew he was indebted to Gulfco for a substantial sum, knew foreclosure proceedings had been instituted but withdrawn, and knew he had not paid his debt. He testified he lived in another state from 1972 until 1980 and therefore was not occupying the property. He did not pay the taxes on the property for these years, indicating he may have considered the property no longer belonged to him. (The property was sold in a tax sale and later redeemed on Williams’ behalf by his sister, Mrs. Alma Cutrer.) Although the loss of the important document has not been explained, there is no suggestion of fraud or illegal practices. The crux of the conflict is the directly opposing testimony of Mr. Bunch and Mr. Williams. As always, the trial court is granted much discretion in assessing the credibility of witnesses. This is so because the trial court has the advantage of studying the demeanor and tone of the witnesses, while the appellate court is limited to the mere reading of the testimony. Considering the surrounding circumstances we find it is reasonable to conclude that the dation was in fact executed and ownership of the property was transferred to Gulfco who subsequently transferred it to the various appellees here.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay costs.

AFFIRMED.


text:
    Hugh Earl DILLARD, Jr. v. Robert L. STAMM.
    No. 13985.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      John E. Maher, Jr., New Orleans, for plaintiff-appellant.
    Bernard S. Smith, Howard R. Fussell, Covington, for defendant-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff Hugh Earl Dillard, Jr., brought this suit against Robert L. Stamm to be recognized as the owner of a parcel of immovable property standing in Stamm’s name, or alternatively, for $15,000.00 paid on the purchase price of the house and for living expenses of the defendant. To the petition, defendant filed a dilatory exception of lack of a necessary party defendant and peremptory exceptions of prescription and no cause of action. After a hearing, the court overruled the exceptions of no cause of action and of prescription and sustained the dilatory exception, but ordered plaintiff to amend his petition.

Plaintiff then filed his first amended petition, naming St. Tammany Homestead Association, holder of a vendor’s lien on the disputed property, as a party defendant, and alleging fraud on the part of both defendants in a number of respects. A dilatory exception of vagueness was filed by St. Tammany, which was sustained, and plaintiff once again amended his petition.

Defendant Stamm answered plaintiff’s petition and reconvened for the value of furniture allegedly taken by plaintiff and for money allegedly advanced to him by Stamm. St. Tammany answered the petitions, and filed a reconventional and third party demand against Dillard and Stamm, asking that the promissory note held by it be accelerated, for judgment for the entire amount thereof, and that the mortgaged property be sold to satisfy the said indebtedness.

After issue was joined on these demands, St. Tammany filed a motion for summary judgment on its reconventional and third party demands. After argument, the motion was denied, and plaintiff was ordered to amend his petition once again, to recognize the vendor’s lien and mortgage held by St. Tammany. After this third supplemental petition was filed, issue was joined as to all matters, and the case set for trial on May 6, 1980.

When the case was called for trial, the judge made the following statement:

“Gentlemen, the plaintiff and his Counsel are not present in Court, I will point out for the Record that at approximately nine ten this morning, I received a telephone call from John Maher, Jr. in which he advised me that he was sick and that he would not be here. He did not advise me as to the nature of his ailment and he did not sound impaired in any way. What is the pleasure of the Defendant in this case?”

Counsel for defendant Stamm asked the court to dismiss the suit and all incidental demands, orally re-urged the exception of no cause of action, and requested an immediate ruling. Counsel for St. Tammany reasserted its third party demand.

The court then ruled that the various petitions did not state a cause of action, and proceeded to deny plaintiff’s oral motion for a continuance, dismiss plaintiff’s suit with prejudice, and dismiss the reconventional and third party demands with prejudice. Judgment was signed accordingly, and plaintiff has appealed. No appeal was taken by St. Tammany, so the judgment is final as to its reconventional and third party demands.

In this court, plaintiff alleges that it had a peremptory ground for a continuance, or that, alternatively, the court abused its discretion in not granting a continuance. It is further claimed that the court erred in sustaining the exception of no cause of action and the motion to dismiss.

Article 1601 of the Code of Civil Procedure provides that a continuance “may be granted in any case if there is good ground therefor.” No peremptory grounds for a continuance are present in this case. Article 1602, Code of Civil Procedure. The trial court is vested with considerable discretion in ruling on a request for a continuance, and his ruling will not be disturbed in the absence of an abuse of his discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974).

Illness of principal counsel in a case has been held to be a good ground for a continuance. However, the unsupported allegation of counsel’s illness does not entitle the mover to a continuance. Lambert v. Bunge Corporation, 169 So.2d 207 (La.App. 4th Cir. 1964); Matthews v. Matthews, 220 So.2d 246 (La.App. 3rd Cir. 1969).

In this case, counsel for plaintiff called the trial judge for the first time on the morning the case was set for trial, and asked for a continuance on the ground of his illness, without specifying the nature thereof. He alleges in brief that he was ill from May 3 through May 7,1980. The trial judge ruled from the bench on May 6, 1980, but the judgment was not signed until May 27, 1980. During that time, and during the time allotted for applying for a new trial, plaintiff’s counsel made no effort, either by production of a medical certificate or by applying for a new trial, to prove the nature and seriousness of his illness.

Under those circumstances, we do not find any abuse of the discretion of the trial judge in refusing to grant a continuance.

In ruling on the case, the trial judge sustained an exception of no cause of action which had been previously overruled by another judge. However, in so doing, he considered only the aspects of the case relative to the title to the property and the allegations of fraud contained in the petition. The alternative demand, for the return of funds allegedly advanced for the purchase price of the property and for living expenses, clearly states a cause of action. If the allegations of the petition set forth a cause of action as to any part of the demands, the exception must be overruled. Haskins v. Clary, 346 So.2d 193 (La.1977). The exception of no cause of action in this case should not have been sustained.

The trial judge also sustained defendant’s oral motion to dismiss. Article 1672 of the Code of Civil Procedure provides:

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

The trial judge has wide discretion in determining whether the dismissal of a suit under these circumstances shall be with or without prejudice. We cannot tell, from the record, if the dismissal with prejudice in this case was based on the maintaining of the exception of no cause of action or on the motion to dismiss for failure to appear.

However, our examination of the record leads us to believe that the dismissal, if based on failure to appear, should have been without prejudice. This suit was filed on May 22, 1978. Hearings were held in September and November, 1978, on exceptions, and in April, 1979, on a motion for summary judgment. Plaintiff amended his petition three times and a number of incidental demands were filed. The case was fixed for trial on only one occasion, and plaintiff, albeit without effect, moved for a continuance prior to his failure to appear, thereby demonstrating his intention not to abandon the action. Under those circumstances, although we find no abuse of discretion in granting the dismissal, we are of the opinion that it should have been granted without prejudice.

The judgment appealed from is therefore amended so as to provide that the dismissal be without prejudice, and, as amended, it is affirmed. The parties shall share the costs of this appeal equally. Plaintiff shall pay all costs in the court below.

AMENDED AND AFFIRMED.


author: PER CURIAM:

text:
    NORTH FOREST HOMEOWNERS’ ASSOCIATION et al. v. HOMECRAFT CORPORATION, Circle R., Inc. and St. Tammany Parish Police Jury.
    No. 14172.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    John F. Robbert, New Orleans, for plaintiffs-appellants.
    Pat Berrigan, Slidell, James Jenkins, Abi-ta Springs, Margaret Ann Brown, New Orleans, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PER CURIAM:

Plaintiffs, homeowners, appeal the dismissal of their suit in redhibition, negligence and unjust enrichment against defendant contractors and the parish police jury seeking relief for defective streets.

We remand.

Defendant, Circle R., constructed streets and purportedly dedicated then to the St. Tammany Parish Police Jury. Defendant, Homecraft Corporation, purchased lots from Circle R. and sold them to plaintiffs in 1977. Since that time, plaintiffs have sought relief from all defendant for flooding, potholes, cracked streets and broken curbs. All defendants have denied liability. The court dismissed plaintiffs’ suit against defendant contractors as prescribed and against defendant police jury for no cause of action.

We remand this case as we are unable to determine from the record which documents furnished to us were properly received into evidence. We order the judge and attorneys involved herein to meet and go over the entire list of exhibits and have stamped each document which was received into evidence.

We also think it appropriate for the trial court to make a finding as to exactly when the St. Tammany Police Jury accepted the streets for maintenance, if in fact it ever did.

REMANDED.


text:
    MORGAN CITY FREEZER & COLD STORAGE, INC. v. Leroy CHAUVIN, and Leroy Chauvin, Inc.
    No. 13986.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Kenneth W. Ford, Morgan City, counsel for plaintiff and appellant.
    John T. Bourgeois, Thibodaux, counsel for defendant and appellee.
    Before. LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Morgan City Freezer & Cold Storage, Inc., hereinafter MCF, brought suit against Leroy Chauvin and Leroy Chauvin, Inc., hereinafter collectively Chau-vin. MCF sought $9,812.34, interest, attorney fees and costs on the ground that Chau-vin had, without rendering payment, utilized MCF’s facilities for the storage and preservation of shrimp. From a judgment rejecting plaintiff’s demands and dismissing the lawsuit, MCF appeals. We affirm.

Chauvin’s version of the facts was accepted by the trial court as shown in the attached reasons for judgment. Essentially, the trial court found that Leroy Chauvin, Bob Collins and Ben Favret entered into a joint venture; that Favret, president of both MCF and Bougon Oyster House, Inc., and whose family controlled both corporations, would put up the money through Bougon Oyster House, while Chauvin would actually purchase and Collins would process and dispose of the shrimp; that until Collins left for Florida following the untimely death of his son, the shrimp had been stored by MCF; that the shrimp were eventually processed and sold; that the proceeds were insufficient to recover either the money advanced or the storage charges; that Chau-vin was sued since his name was on MCF’s warehouse receipts; that Chauvin received nothing and that Bougon Oyster House, controlled by Favret’s family, had received all the proceeds; and that MCF, having the same president as Bougon Oyster House, should receive nothing from Chauvin since MCF’s companion corporation had already received all the proceeds of what amounted to a salvage operation.

The thrust of MCF’s appeal is that no joint venture included MCF; that joint venture or not, MCF was a separate corporation; that MCF was owed for its services; and that Chauvin, whose name appears on the warehouse receipts, must pay.

Testimony by Chauvin and Favret conflicted as to whether there was a joint venture, and if so, whether it included MCF. Chauvin also urges that even if MCF were not originally in a joint venture, that subsequent developments in the form of a salvage operation release Chauvin from any obligation to plaintiff.

There is no documentary evidence relating to the formation or not of a joint venture and/or the formation or not of a salvage operation. All the principals dealt in person on a face to face oral basis.

The district judge heard and watched both principal witnesses, Chauvin and Fav-ret, as they told conflicting stories. His evaluation of the witnesses’ credibility and findings of fact must be given great weight. A careful review of the record indicates that appellant has not shown that the trial judge’s findings of fact were clearly wrong. We must, therefore, affirm the trial court judgment.

All costs, both trial and appellate, are to be paid by Morgan City Freezer & Cold Storage, Inc.

AFFIRMED.

REASONS FOR JUDGMENT

This is a lawsuit on an open account by Morgan City Freezer & Cold Storage, Inc. against Mr. Leroy Chauvin, individually, and Leroy Chauvin, Inc., a Louisiana corporation authorized to do and doing business in the State of Louisiana. The suit is in the amount of $9,812.34 and is based on the claim that plaintiff rendered unto defendants storage services at the plaintiff’s cold storage facility located in Morgan City, Louisiana. Allegedly defendants obtained cold storage services for shrimp belonging to defendants in the amount of $9,812.34.

Defendants answered this lawsuit denying that they were indebted to plaintiff and denying that they sought or were obligated for storage service charges as claimed in plaintiff’s petition.

Trial was held on May 17,1978, and after preparation of the transcript of said trial and the submission of briefs by counsel for plaintiff and defendants, the court now renders its judgment and reasons for judgment thereon.

The evidence and testimony adduced at the trial convinces the court that Mr. Leroy Chauvin is not personally liable for any storage charges since the record establishes beyond any doubt that the shrimp were not owned by Mr. Chauvin but were purchased by and owned by the defendant corporation, Leroy Chauvin, Inc. (for and on behalf of said company and others), as will be seen by reference to defendants’ Exhibits “D-l”, “D — 2”, “D-3”, “D-4”, “D-5” and the testimony of both Mr. Ben Favret and Mr. Leroy Chauvin. Likewise, the record clearly establishes that the storage of the shrimp was carried in the name of defendant corporation as will also be seen by reference to the copies of the negotiable warehouse receipts filed in this record under Exhibit “D-4”. For these reasons the court believes that it has not been established by a preponderance of the evidence that Mr. Leroy Chauvin either owned the shrimp personally or assumed the responsibility for any storage charges, or that it was ever intended that Mr. Chauvin would be personally liable for the alleged claim of storage involved in this lawsuit. The only defendant that could possibly be liable for these service charges is defendant corporation herein.

In order to place this case in its proper prospective the court will summarize the facts as it understands the facts to be proven by the testimony and exhibits entered into the record at the trial of this case.

At the beginning Mr. Leroy Chauvin entered into a joint venture with a Mr. Bob Collins and Mr. Ben Favret, president of Morgan City Freezer & Cold Storage, Inc., and also president of Bougon Oyster House, Inc., in which Mr. Favret operating through Bougon Oyster House, Inc. would put up the money, Mr. Chauvin would be responsible for the actual purchase of the shrimp from various dealers or shrimp fishermen, and Mr. Collins would be responsible for the processing and disposition of the shrimp through a company located in Florida. This arrangement apparently worked satisfactorily until the untimely and sudden death of Mr. Collins’ son in an accident in Florida. At the time Mr. Collins’ sudden departure for Florida shrimp had been purchased and had been stored in Morgan City Freezer & Cold Storage, Inc.’s facilities awaiting processing and shipment to customers. It is noted that the shrimp purchased in this joint venture had been stored in Morgan City Freezer & Cold Storage, Inc.’s facilities at Morgan City, Louisiana in the Leroy Chauvin, Inc. name, they being covered by negotiable warehouse receipts, as will be seen by reference to copies thereof filed in this record under Exhibit “D — 4”. Apparently, with the sudden withdrawal from the venture and departure by Mr. Collins, it became necessary for someone to process the shrimp and dispose of them in an effort to recover the investment that had been made by Bougon Oyster House, Inc. and Mr. Favret. Mr. Favret, as president of Morgan City Freezer & Cold Storage, Inc., obtained an endorsement of the negotiable warehouse receipts from defendant corporation, and the shrimp were then processed in a facility previously operated by Mr. Collins in Terrebonne Parish and returned to Morgan City for disposal. The shrimp apparently were then disposed of by Bougon Oyster House, Inc. in an effort to recoup its money, leaving the defendant corporation Leroy Chauvin, Inc. to face the claim of Morgan City Freezer & Cold Storage, Inc. for the storage charges. The court believes it significant that Mr. Favret was wearing two hats in this transaction. He was president of Bougon Oyster House, Inc., supplier of the money used to purchase and process the shrimp and was attempting to salvage the investment of Bougon Oyster House, Inc., and at the same time he was president of Morgan City Freezer & Cold Storage, Inc. and in that capacity sought to recover for the alleged storage charges due to said corporation. It is noteworthy that Morgan City Freezer & Cold Storage, Inc. did not sue Bougon Oyster House, Inc., the company who really benefited from this entire transaction, but instead chose to seek recovery against Mr. Chauvin personally and his corporation, who received nothing in this salvage operation. Mr. Chauvin was induced by Mr. Favret to sign the negotiable warehouse receipts, to the advantage and benefit of Bougon Oyster House, Inc. As a consequence of this release, the shrimp were processed and were disposed of by Bougon Oyster House, Inc. or Morgan City Freezer & Cold Storage, Inc., and neither defendant in this case ever received anything for the release of the shrimp from storage or from that disposal sale.

For these reasons the court does not believe that Morgan City Freezer & Cold Storage, Inc. should recover anything from defendant corporation because of the advantage that its companion corporation, having the same person as president, received the entire proceeds from this salvage operation and that defendant corporation received nothing in return and therefore it should not be cast in judgment in this case.

For these reasons the court does not believe that defendants herein owe Morgan City Freezer & Cold Storage, Inc. any storage charges or any money as claimed in this lawsuit. Accordingly, plaintiff’s lawsuit will be dismissed at its cost.


text:
    Russell CHANEY v. BRUMFIELD WRECKER SERVICE, INC., and Noel Brumfield.
    No. 13989.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    Charles R. Moore, Keith B. Nordyke, Baton Rouge, counsel for plaintiff-appellee Russell Chaney.
    William Hawk Daniels, and Charles Raymond, Baton Rouge, counsel for defendant-appellant Brumfield Wrecker Service, Inc. and Noel Brumfield.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This case has been appealed once before. In a decision of this Court in No. 12,964 reported in 380 So.2d 126 (1979), we set aside the sustaining of an exception of no right of action. We remanded the case to the trial court with instructions to decide two limited issues, (1) quantum of damages to the Chaney vehicle, and (2) availability of funds to Chaney to recover the car from the wrecker service. The trial court after trial on the merits rendered judgment for plaintiff, Russell Chaney, against Brumfield Wrecker Service, Inc., in the sum of $250.00, assigning written reasons. Our original decision well sets out the facts of the case, and the written reasons correctly apply the applicable law. We, therefore, adopt the written reasons as the opinion of this court. It will be noted that the trial court did not decide, nor do we decide, the possible questions of whether or not Chaney committed a trespass upon the parking lot of Crillon Apartments, where the vehicle was parked, or whether or not Brumfield or Crillon made an extra-legal conversion of the automobile. The decision is based solely upon the cannibalization of the automobile after it was towed away and while it was in the custody of defendant Brumfield Wrecker Service. The written reasons for judgment of the trial court fully set forth are as follows:

“This suit was remanded by the First Circuit Court of Appeal for ‘two limited purposes .... evidence concerning the damages to the Chaney vehicle .... new evidence . . . available concerning funds at the plaintiff’s disposal in the time period following the confiscation of the vehicle.’
In regard to the first aspect of the remand, the evidence reflects that because of damage sustained in a prior collision, the 1972 Plymouth Duster was close to a total loss. However, it did serve as transportation for the plaintiff and his wife even though it would not have been an attractive item in the market place. Further, there is no doubt in the court’s mind that the vehicle was cannabalized while reposing in Brumfield’s care. Plaintiff’s expert testified that it would take $1,339.00 to replace the parts on the vehicle which were vanalized (sic). With these considerations in mind, the court finds that the plaintiff did sustain a loss to the vehicle caused by the defendant. The court measures this loss at $250.00 being the amount which he paid for a replacement vehicle.
With respect to the remaining proof permitted on the remand relating to the financial ability of the plaintiff to retrieve his vehicle from Brumfields, this bears on the plaintiff’s claim for loss of use and inconvenience during the period of time after it was picked up by Brum-field and when Chaney purchased a substitute vehicle. The court previously awarded $200.00 for four weeks during which the plaintiff was deprived of his vehicle. The evidence now reflects that merely ten days elapsed during this period. The parties stipulated that the fee for towing and storage owed by the plaintiff to Brumfield was $50.00. It would appear that if the plaintiff was able to muster up $250.00 for purchase of another car, he should have been able to pay Brumfield for these modest charges and much of the delay in payment attributable to his impecunious condition was his own fault. For this reason, the Court finds that its original award of $200.00, while equitable considering the defendant’s actions, cannot be justified in view of the evidence.
Based upon the new and additional evidence filed on the remand, together with further consideration of the evidence furnished on the original trial, and as expressed in these reasons, the court renders judgment in favor of the plaintiff, Russell Chaney, and against the defendant, Brumfield Wrecker Service, Inc. in the sum of $250.00. In all other respects, the judgment previously rendered is maintained.
The expert witness fees of Robert L. Croxton and Walter Hilburn are set at $50.00 each and are taxed as costs. All costs of this proceeding are to be paid by the defendant.”

Only defendant Brumfield Wrecker Service, Inc., appealed. Chaney neither appealed nor answered the appeal. The issue of damages for loss of use of the automobile is, therefore, not before us, and that portion of the written reasons for judgment applying to that issue is not pertinent to our decision.

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

AFFIRMED.


text:
    Shirley R. THOMAS v. Andrew THOMAS, Jr.
    No. 13990.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Arnold J. Gibbs, Baton Rouge, counsel for plaintiff-appellant Shirley R. Thomas.
    Alfred C. Williams, Baton Rouge, counsel for defendant-appellee, Andrew Thomas, Jr.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented herein are whether or not the trial court acted properly in allowing the defendant-appellee a credit on his past due child support and in reducing a fee awarded plaintiff’s attorney from $850.00 to $350.00. We find the court should not have allowed the credit but hold the reduction of the fee to be within the discretion of the court. We therefore reverse in part and affirm in part.

Plaintiff Shirley Thomas filed suit against defendant Andrew Thomas on May 30, 1979, seeking a divorce based on adultery. By virtue of an interlocutory judgment rendered June 22, 1979, Mrs. Thomas was granted custody of the two minor children and Mr. Thomas was ordered to pay $300.00 monthly child support. The child support payments were to be paid in installments of $150.00 each, the first of such payments being due on June 27, 1979. Defendant paid one installment of $600.00 on June 27, 1979 and made no further payments. A preliminary injunction was also issued, forbidding defendant from disposing of community property and from harming or harassing plaintiff.

In March of 1980 plaintiff filed a rule nisi, seeking to have defendant declared in contempt of court for violation of the preliminary injunction and also seeking judgment making the past due child support executory. Judgment on the rule was rendered May 1, 1980. Defendant was found in contempt of court because of the physical harm he inflicted upon plaintiff and was sentenced to serve 120 days in the parish jail. The judgment also ordered defendant to pay $2,400.00 for past due child support and $850.00 representing the fee of plaintiff’s attorney.

Defendant subsequently filed a request for a partial new trial, alleging he should be given a credit of $1,000.00 on his arrearag-es, such sum representing community funds plaintiff had in her credit union account at the time the suit for divorce was filed. The court rendered a new judgment on June 18, 1980, which granted defendant the credit, (thereby reducing the amount owed to $1,400.00) and reduced the attorney’s fee to $350.00. From this judgment plaintiff appeals.

Plaintiff argues the court erred in allowing defendant the credit because this money was deducted from her paycheck while she lived separate and apart from her husband. Such funds were classified as separate property under La.Civ.Code art. 2334 (repealed in 1979). If plaintiff had in fact proven the money was her separate property her argument would have raised questions about which law should be applied to the case, the “old law” (Book III, Title VI as it existed before the 1979 revision) or the “new law” (Acts 1979, No. 709). We need not reach a conclusion on this issue however, because plaintiff failed to prove the funds were her separate property. There was no testimony or other evidence to show on what dates the money was deducted from her paycheck. Since this information is necessary in order to characterize the money as her separate property, plaintiff clearly failed to establish the nature of the funds. Property possessed by either spouse during the existence of the community is presumed to be community property. This is true under the revised law (La.Civ. Code art. 2340) and under the pre-1979 law (La.Civ.Code art. 2405). Therefore, for purposes of this opinion, we assume the property was community property.

Defendant relies on the case of Nelson v. Nelson, 318 So.2d 68 (La.App. 1st Cir. 1975), on rehearing, for the proposition that the husband should be granted a credit for the full amount of the property held by the wife. In the original Nelson opinion (311 So.2d 268, 1974) this court held that since the property had not been proven to be the wife’s separate property, it was presumed community and therefore the husband was entitled to a credit of one-half its value. This court reversed itself on rehearing as to the amount of credit due. The court reasoned that to designate the funds as community and grant a credit of one-half to the husband was a method of effecting a partition of the community property, a subject which is under the jurisdiction of the District Court rather than the Family Court. On rehearing, the court stated that unless the property was shown to be the separate property of the wife (in which case the husband would not be entitled to any credit) the husband should be given credit for the entire amount. The court reasoned that if the wife had not held the funds, the husband could have used the entire amount to pay his child support obligation. Any claims the wife may have had to the funds would have to be settled in the court having jurisdiction over the community partition.

After carefully researching the matter we conclude new law has evolved since our decision in Nelson. In Hartley v. Hartley, 349 So.2d 1258 (La.1977), the court was presented with a situation similar to the case at hand. A judgment was rendered against the defendant husband ordering him to pay a specified sum for his past due alimony. He sought a credit in the amount of certain funds the wife had transferred from their joint account to an account in the name of their daughter. The wife admitted part of the funds were used for her own living expenses after they separated. This appellate court had granted the husband a credit for one-half the sum, citing the original Nelson opinion. Hartley v. Hartley, 341 So.2d 1257 (La.App. 1st Cir. 1977), writ granted 1977. The Supreme Court reversed, distinguished Nelson on the facts, but disapproved of the reasoning in Nelson.

The court noted the defendant husband was seeking a “set off” or “compensation” of his debt. A set-off requires the “contemporaneous existence of distinct debts, each equally liquidated and demandable.” The court concluded the debt of the defendant husband was not a liquidated claim, and reasoned as follows:

“In the case at hand the best that can be said of Mr. Hartley’s position is that he has a potential claim against his wife for community funds, a claim very likely to be contested, and one which should properly be determined in a partition of community property.” 349 So.2d 1258, 1261.

The court concluded that when the debt of the plaintiff wife was compared to the debt of the defendant husband (the executory judgment) the two were not “equally liquidated and demandable”; therefore set off was not applicable. The Hartley decision has been followed recently by various appellate courts. See Castille v. Castille, 358 So.2d 1002 (La.App. 3d Cir. 1978) and Dees v. Dees, 382 So.2d 1057 (La.App. 2d Cir. 1980).

As in Hartley, it is clear that in this case any claim defendant has against plaintiff for his share of the community funds is only a potential claim and should be settled in the community property partition. The Family Court has no jurisdiction over such matters and therefore should not have allowed the set-off.

We find no abuse of discretion in the trial court’s reduction of the attorney’s fee to $350.00. It must be noted the matter litigated was heard on a rule to show cause, rather than at a complete trial. The fee is to compensate the attorney for his time relative to the rule, and is in addition to the $1,250.00 awarded in the judgment rendered on the merits.

For the foregoing reasons, the judgment appealed is reversed insofar as it granted defendant a credit of $1,000.00 on the exec-utory child support award and it is affirmed insofar as it reduced the amount of the attorney’s fee. Costs are to be borne equally by the parties.

REVERSED IN PART; AFFIRMED IN PART.

      . Meanwhile plaintiff was granted a judgment of divorce on June 11, 1980. The judgment ordered defendant to pay $200.00 a month for child support and contained a permanent injunction against defendant alienating any community property or from harassing plaintiff. Each party was awarded attorney’s fees of $1,250.00, to be paid out of the mass of the community.

        . At the time Nelson was decided the authority for community property partitions being under the jurisdiction of the District Court, rather than the Family Court, was found in La.Const. art. VII § 53. This same jurisdictional guideline is now found in La.R.S. 13:1401(7).