text:
    Malcolm R. GOMEZ v. Elodie Winnifred Pichon GOMEZ.
    No. 82 CA 0215.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Edward A. Shamis, Jr., Slidell, for plaintiff, appellee.
    A.D. Freeman, New Orleans, for defendant, appellant.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by the former wife, Elodie Winnifred Pichón Gomez, from a judgment of the trial court insofar as it allowed her former husband, Malcolm R. Gomez, credit against unpaid child support. Gomez has answered the appeal, contending that the judgment fails to allow him proper credit for all amounts he has paid in lieu of his child support obligation.

The record reflects that Gomez sued for divorce against his wife on November 30, 1978, on the grounds of two years’ separation. In the divorce petition, Gomez agreed to pay the defendant $250 monthly for the support of their two minor children, Merreil Ramon and Malcolm Rafael, whose ages were then 10 and 4 years, respectively. He also agreed to pay all medical bills and to maintain medical insurance on the children. Judgment of divorce in favor of the plaintiff, with custody to the mother and the child support and the medical expenses fixed in accordance with the agreement, was decreed on December 4, 1978.

On April 10,1981, Mrs. Gomez filed a rule nisi for executory judgment, for contempt, and for attorney’s fees, alleging that Gomez had failed to pay child support for the months of January through December of 1979 and January through November of 1980, amounting to a total delinquency of $5,750.

On June 1,1981, the rule was heard. The trial court rendered a judgment, finding that Mrs. Gomez was entitled to an execu-tory judgment against Mr. Gomez in the full sum of $5,750, with legal interest on each installment from the day it became due until paid, subject to a credit of $2,945.55. The judgment also provided for attorney’s fees in the sum of $450.00, and for all costs of the rule. The judgment of June 1, 1981, was not signed until November 19,1981. Mrs. Gomez has appealed only that part of the judgment which allows a credit of $2,945.55 to Gomez.

The testimony of plaintiff in rule, Mrs. Gomez, establishes that no payments of child support were specifically or directly paid to her, or tendered to her in accordance with the judgment of December 4, 1978, for the periods of January through December, 1979, and January through November, 1980. The total arrearage in the amount of $5,750 was also established by Mrs. Gomez’s testimony.

Although Gomez testified that he paid all of the child support payments for the period in dispute, he was unable to produce any checks or receipts to show payments of his monthly obligation of $250.

The trial court found that no child support payments were made directly to Mrs. Gomez; however, it did credit Gomez with certain payments which he made to others, as follows: $2,264.79 for utility bills, and $680.86 for automobile insurance on the vehicle of Mrs. Gomez.

Mrs. Gomez testified that she never agreed with her husband to give him any credit on the child support he was ordered to pay in the divorce judgment. She testified there was no agreement between them concerning payments of obligations to third persons in lieu of payment of child support.

It is settled that parents may agree to modify the amount of child support fixed by judgment, and such agreement will be given effect if it is in the interest of the child. But, for such an agreement to be effective, the parties must clearly agree to such modification. Moreover, the burden of proof is on the party relying on the agreement to relieve him of his obligation, or to modify his obligation, under the judgment to prove the existence of the agreement. Williams v. Williams, 405 So.2d 1277 (La.App. 4 Cir.1981).

In the case at bar the father’s case was based solely on his own testimony, which was unsupported by any checks or receipts, and is unsubstantiated by any other corroborative evidence. Thus, we find that the defendant in rule has failed to prove that there existed an agreement between him and his former wife to modify the child support judgment so that he could satisfy his obligation by the payment of utility bills and car insurance premiums, or any payment to a third person. The husband did not prove that the parties did “clearly agree.”

For the reasons assigned, we amend the judgment to disallow the credit of $2,945.65 to Malcolm R. Gomez, and to render judgment in favor of Elodie Winnifred Pichón Gomez and against Malcolm R. Gomez in the full sum of $5,750.00, with legal interest on each child support installment from the date it became due until paid. In all other respects the judgment is affirmed. We cast the defendant in rule, Malcolm R. Gomez, with costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The judgment also declined to hold Gomez in contempt; it designated specific child visitation rights to Gomez; and it expressly ordered Gomez to make all future payments of child support to Mrs. Gomez in accordance with prior court orders.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Merrilyn Joy Bernard FAUST v. William Bryant FAUST, III.
    No. 82 CA 0276.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      James E. Kuhn, Denham Springs, for plaintiff-appellee.
    T. Jay Seale, III, Hammond, for defendant-appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

Merrilyn Joy Bernard Faust (appellee) and William Bryant Faust, III (appellant), were legally separated by judgment dated November 7, 1979. Three children were born of their marriage: William Bryant Faust, IV, (now a major), Brent Faust (age 12), and Melissa Faust (age 10). At that time, the trial court found that the best interest of the children would be served by awarding custody of William Bryant, IV, to appellant, and custody of the two youngest children, Brent and Melissa, to appellee. The parties were finally divorced on January 9, 1981.

Appellant subsequently filed a Rule for Change of Custody, alleging that circumstances had changed and that the best interest of the children would be served by awarding custody of the two minor children to him. By judgment dated January 20, 1982, the trial judge ruled that custody of the two minor children should remain with their mother, under supervision of the Department of Health and Human Resources. Appellant perfected this appeal.

The best interest of the child or children is the sole criterion in determining when a change in custody is appropriate. La.C.C. art. 157 and Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The standard of review in child custody eases was explained by the Louisiana Supreme Court in Borde-lon as follows:

“... the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fuleo [v. Fulco, 259 La. 1122, 254 So.2d 603], supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong.’ Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

390 So.2d at 1329.

The evidence established that on June 5, 1981, appellant, an assistant attorney general for Louisiana, married Cheryl Cannizzaro Faust; that Cheryl Faust has custody of her two minor children, ages six and eight; that the couple has purchased a four-bedroom home containing ample housing space for the children of both spouses; that Cheryl Faust works for the Jefferson Parish School Board as a teacher coordinator, teaching a course in child care services; that her working days are conformable to the children’s school days; that she lovingly cares for these stepchildren during visitation; that the children have friends in their father’s neighborhood and a good rapport with Cheryl’s children; and that there is a nearby school which they could attend. Appellant admitted, however, that the children have expressed concern about leaving the school they now attend.

Appellee is a registered nurse who works a hospital shift from 11:00 p.m. to 7:00 a.m., but is off two or three days during the week. She testified that she chose this type of work schedule so she could be with her children during the daytime hours while they were awake and in need of her attention; that she has a babysitter who stays with the children at night but leaves at 6:00 a.m.; that the children are alone but are dressing for school after the sitter leaves; and that the children either catch the bus or she takes them to school.

Richard Morgan, a private investigator, testified on behalf of appellant. He stated that during the summer, he observed Brent and Melissa riding bikes and playing around an old abandoned house; that he observed them at an establishment known as “Robert’s Trademart,” apparently buying soft drinks; and finally, that he saw the children catching the school bus alone. The trial judge found, and we agree, that:

“Mr. Morgan’s investigation failed to reveal any real evidence of conduct detrimental to the best interest of the children.”

Appellant also contends that the trial judge erred in failing to consider evidence received in the prior hearing, as it showed a pattern of conduct which would reflect upon appellee’s ability to presently care for the children. The original custody order was dated Nov. 7, 1979, and this change of custody rule was heard on October 26, 1981, nearly two years later. Nothing in the record reveals any detrimental conduct by appellee. The present circumstances did not show anything detrimental to the children’s best interest, so there was no reason to consider prior conduct. The trial judge indicated:

“The court finds nothing in the record of this hearing that would cause a change of its previous opinion.”

The trial judge in his written reasons also stated:

“The court is of the opinion that Mrs. Faust could, as most anyone in her position, use help and guidance with her responsibility of raising the children. The Court is, therefore, going to direct the Department of Health and Human Resources to monitor this situation and assist Mrs. Faust where possible.”

This precaution was taken even though he found that it was in the best interest of the children to remain with their mother. A reviewing court may not substitute its will for that of the trier of fact, even if it disagrees, unless the record shows that the trial court’s finding was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). It is fairly obvious that the trial judge felt that the best interest of the children was served by the stability of environment provided by their mother.

The rule of law set forth by the Supreme Court in Bordelon, supra, provides:

“. .. even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child.” (emphasis ours) 390 So.2d at p. 1329.

We cannot say that the trial judge was clearly wrong, and we affirm his decision.

All costs of this appeal are assigned to appellant.

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana In the Interest of Tony Wayne WILLIAMS.
    No. 82-CA-0280.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Wiley R. Dial, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    Georgia Wilemon, Asst. Public Defender, Baton Rouge, for defendant-appellant Tony Wayne Williams.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Tony Wayne Williams, a juvenile, appeals from a judgment adjudicating him delinquent and committing him to the Louisiana Department of Corrections for a period not to exceed his twenty-first birthday.

The state’s petition for adjudication alleged that Williams had committed two counts of armed robbery. LSA-R.S. 14:64. The charges against Williams stem from an incident which occurred late on the night of November 11, 1981, at a Church’s Fried Chicken store in Baton Rouge. Two employees, Sandra Martin and Joyce Lands, were working at the store that night. At about 11:00 p.m., five black youths entered the store and sat at a table in the dining area. After remaining at the table for a few minutes, the five got up and went into the men’s rest room. Upon exiting from the rest room, the youths left the store but remained outside in the parking lot.

The actions of the youths aroused the suspicions of Martin and Lands. The two store employees removed all excess cash from their cash registers and placed it in a locked safe. About twenty minutes after the youths left the building, four of them reentered while the fifth remained outside near the door. All four who entered the store produced handguns and demanded that Martin and Lands open their registers and give them money. After receiving the money from the registers, a total of $58.00, all five youths fled the premises.

Martin notified the police of the robbery and Officer Royce Thompson was dispatched to investigate the incident. On the day after the robbery, Officer Thompson submitted to Martin a photographic lineup which included a photograph of Williams. Martin was unable to identify any of the photographs in the lineup as being that of any of the robbers.

Tony Williams was later arrested by Officer Thompson on the basis of information obtained from other sources. On November 24, 1981, the state filed its petition for adjudication as a delinquent. On December 18,1981, Williams’ court-appointed attorney filed a motion for discovery, seeking various material and information. In its answer, the state denied having any of the requested information in its possession with the exception of a statement made by an alleged co-conspirator.

On January 18, 1982, an investigator from the public defender’s office, Debra Terrell, took some photographs of Williams and brought them to the Church’s store to see if the robbery victims could identify him. Only Martin was at the store that day. After viewing the photographs, Martin was unable to identify Williams as one of the robbers. The next day, at the request of defense counsel, a physical lineup was conducted for Martin and Lands. Martin picked Williams out of the lineup and identified him as one of the robbers, but Lands failed to identify him.

At trial, Martin again made a positive identification of Williams. Lands was unable to identify him as one of the robbers, but testified that she did not get a good look at one of the young men. The trial court, relying upon the testimony of Martin, found Williams guilty of the two counts of armed robbery with which he was charged and adjudicated him delinquent.

Williams has appealed that adjudication. His appeal makes the following two assignments of error:

“1. The trial court erred in finding the defendant guilty of armed robbery in light of the fact that, taking all identification testimony in a light most favorable to the prosecution, no rational trier effect [sic] could have concluded that Tony Williams was the perpetrator beyond a reasonable doubt.
“2. Material exculpatory evidence relevant to guilt or innocence, in the control of the prosecutor, was not revealed to the defense timely, as requested by motion requesting same.”

Each assignment of error will be considered separately. However, we note at the outset that each is intertwined with defendant’s contention that the state withheld exculpatory evidence in its answer to defendant’s motion for discovery by neglecting to reveal Martin’s failure to pick Williams out of the photographic lineup.

Assignment of Error No. 1

Under this assignment of error, defendant first argues that Martin’s identification of him in court and at the physical lineup was tainted by the fact that she had been shown Williams’ picture by Terrell, the investigator for the public defender’s office. Defendant contends that if those identifications are excluded, the evidence against him is insufficient to prove beyond a reasonable doubt that he participated in the robbery.

Initially, we note that defendant seeks to exclude the identification testimony on the basis of actions taken by an investigator who worked for his own attorney. Even if we were to conclude that any prejudice resulting from the actions of Williams’ own counsel could provide a basis for excluding testimony of identification by Martin, such an exclusion would not be required in the instant case.

Martin’s in-court identification was admitted into evidence without objection by Williams’ counsel. Evidence of Martin’s identification of Williams at the physical lineup was also admitted without objection. In the absence of any contemporaneous objection to the admission of that evidence, any error related to its admission is not reviewable on appeal. LSA-C.J.P. art. 24; LSA-C.C.P. art. 1635. See also LSA-C. Cr.P. art. 841; State v. Wright, 410 So.2d 1092 (La.1982); State v. Lecompte, 371 So.2d 239 (La.1978).

Williams’ basic assertion under this assignment of error is that the evidence was not sufficient to establish beyond a reasonable doubt that he participated in the robbery. In his oral reasons for judgment, the trial judge noted that his decision was based upon an evaluation of witness credibility. A trial court is in a unique position to make such an assessment.

Article 73 of the Code of Juvenile Procedure sets forth, in pertinent part, the burden of proof imposed upon the state in delinquency proceedings:

“If the petition requests that the child be adjudicated a delinquent, the state shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.”

The scope of this court’s review in judicial proceedings extends to both law and fact. LSA-Const. Art. 5, sec. 10; In Interest of Franklin, 399 So.2d 671 (La.App. 1st Cir.1981); State in Interest of Giangrosso, 385 So.2d 471 (La.App. 1st Cir.1980), aff’d. 395 So.2d 709 (La.1981). We are therefore called upon to determine if the Family Court was clearly wrong in its determination that Williams was proven guilty beyond a reasonable doubt. In Interest of Franklin, supra. After a review of the entire record, we are unable to say that the Family Court was manifestly erroneous or clearly wrong in its finding that Williams was guilty beyond a reasonable doubt of the two counts of armed robbery with which he was charged. Furthermore, our review convinces us that a rational trier of fact could have found, from the evidence adduced at trial, proof of guilt beyond a reasonable doubt. State in Interest of Giangrosso, 395 So.2d 709 (La.1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment of error lacks merit.

Assignment of Error No. 2

Under this assignment of error, Williams contends that he was prejudiced by the state’s failure to inform him of Martin’s inability to pick him out of the photographic lineup of November 12, 1981. Williams argues that Martin’s failure to identify him constituted material exculpatory evidence which was requested in his discovery motion. Williams asserts that if Martin’s failure to identify him had been revealed, his attorney would not have had the photographs of Williams shown to Martin or requested a physical lineup.

In brief, counsel for Williams asserts that LSA-C.Cr.P. art. 721 requires the state to turn over any exculpatory material upon request. Our reading of that article reveals no such requirement. Article 721 merely provides that, upon motion of the defendant, the court shall order the state to inform the defendant of its intent to use hearsay statements of co-conspirators pursuant to R.S. 15:455.

In State v. Willie, 410 So.2d 1019 (La.1982), the Louisiana Supreme Court delineated the state’s duty to disclose exculpatory evidence as follows:

“The defendant’s right to be protected against the prosecution’s failure to disclose exculpatory evidence is founded upon the due process clause and is designed to assure a fair trial and not to deter prosecutorial misconduct. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 8 Moore’s Federal Practice § 16.06 (2d ed. 1981). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court set forth three categories of cases to which Brady arguably applies and enunciated standards for each category.
“The first category is illustrated by Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and includes cases in which the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecutor knew, or should have known, of the perjury. A strict standard of materiality is applied in such cases and a conviction obtained by the knowing use of perjury must be set aside ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury’. United States v. Agars, supra 427 U.S. at 103, 96 S.Ct. at 2397.
“The second category of cases, typified by Brady itself is characterized by a pretrial request for specific evidence. The standard for materiality in such eases is whether the suppressed evidence ‘might have affected the outcome of the trial.’ United States v. Agars, supra, 427 U.S. at 104, 96 S.Ct. at 2397.
“The third category of cases consists of those in which a general request (‘all Brady materials’) or no request at all is made. A conviction will be overturned, in such cases, if the omitted evidence creates a reasonable doubt that did not otherwise exist. The omission must therefore be evaluated in the context of the entire record.
If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. 2401.” 410 So.2d at 1030, 1031.

We have reviewed the defendant’s motion for discovery. Evidence of Martin’s failure to identify Williams at the photographic lineup does not fall into any of the categories of exculpatory evidence which were requested by Williams. Therefore, this case falls into the third category of cases discussed in State v. Willie, supra. In that category of cases, the state’s failure to disclose exculpatory evidence is grounds for reversal only if the omitted evidence creates a reasonable doubt that did not exist.

In the instant case, testimony of Martin’s failure to identify Williams was introduced into evidence. The trial judge, in denying defendant’s motion for directed verdict, discounted the importance of this testimony:

“Miss Martin impressed the Court as being very conscientious and the photographs first showed to her by the police, she could not make an identification from the photographs, she impressed the Court as being an individual that wanted to be absolutely certain, beyond any doubt, before she pointed the accusing finger at anyone with respect to a charge for armed robbery.”

As noted above, we have reviewed the entire record and determined that the trial court was not clearly wrong in concluding that the evidence adduced established beyond a reasonable doubt that Williams committed the crimes with which he was charged. Since the exculpatory evidence which defendant claims was wrongfully withheld was admitted into evidence, it obviously does not create a reasonable doubt and therefore no reversal of the judgment is required. See State v. Willie, supra.

This assignment of error lacks merit.

For the foregoing reasons, the judgment of the Family Court is affirmed.

AFFIRMED.

      . A third, unidentified employee was at the store that night, but apparently was in the cooler during the entire course of- the incidents in question.

      . The ultimate source of this taint, defendant argues, is the state’s failure to provide exculpatory evidence, i.e., to notify the defendant that Martin had failed to pick Williams out of the photographic lineup. Defendant argues that if his attorney had known of Martin’s failure to identify Williams, she would not have had Williams’ picture shown to Martin or requested the physical lineup.


author: COLE, Judge.

text:
    Robert E. JONES v. AETNA CASUALTY AND SURETY COMPANY, et al.
    No. 82 CA 0419.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Roy Maughan and Robert W. Stratton, Baton Rouge, for plaintiff-appellant Robert E. Jones.
    Stephen K. Peters, Baton Rouge, for third party plaintiff-appellant Robert Rar-ick.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Earl Harrison, Baton Rouge, for defendant-appellee Buster Giambrone.
    Ben L. Day, and Daniel L. Dziuba, Baton Rouge, for defendant-appellee Aetna Cas. & Sur. Co.
    Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This case is before us on a motion to dismiss filed by defendant, Gulf States Utilities Company. The following sequence of events is pertinent to our decision.

On March 5,1979, suit was filed by plaintiff, Robert Jones, against defendants, Aetna Casualty and Surety Co., State Farm Insurance Company, Gulf States Utilities Co., Buster Giambrone and Robert W. Rarick. On April 7,1981 a trial was held and a directed verdict was granted for Gulf States and Giambrone. (See La.Code Civ.P. art. 1810.) No judgment was signed at this time and the trial court took the remainder of the case under advisement.

On June 20, 1981, the court filed written reasons wherein it found in favor of plaintiff and against defendants, Aetna and Robert Rarick, in the amount of $93,832.10, plus legal interest, court costs and expert witness fees. On August 31,1981, a receipt and release agreement was executed by plaintiff in favor of Aetna (for itself, Rimes Wrecker Service and Mr. Rarick) in exchange for the sum of $90,000. Plaintiff expressly reserved his rights against Gulf States and Giambrone. On September 11, 1981, a judgment was finally signed as to this matter only and the suit was dismissed with prejudice as to Aetna, Rarick and Rimes Wrecker Service (a third party defendant). Plaintiff’s rights were again expressly reserved against Gulf States and Giambrone.

It was not until March 23, 1982, that judgment was signed dismissing Gulf States and Giambrone from the suit. Plaintiff appealed timely and defendants, Gulf States and Giambrone, filed this motion ^ to dismiss.

The basis of the motion is that since by virtue of the release the plaintiff “... has been paid the amount awarded by the trial court ...” and since plaintiff “... does not specify the quantum finding as an error” plaintiff has no further rights to assert an appeal.

We find no merit to mover’s argument. First, the release was executed with all rights reserved against Gulf States and Gi-ambrone, therefore, plaintiff is entitled to proceed against these parties. La.Civ.Code arts. 2100 and 2203. Secondly, the amount of the judgment was to be $93,832.10 plus legal interest from date of judicial demand, court costs and expert witness fees. Obviously the plaintiff did not receive payment for this entire amount and we cannot accept mover’s argument that the plaintiff’s claim has been satisfied entirely. Plaintiff is entitled to appeal against these parties.

MOTION TO DISMISS APPEAL DENIED.

      . State Farm was dismissed without prejudice at the beginning of the trial.

      . Art. 2100. “The creditor, who consents to the division of the debt with regard to one of the codebtors, still has an action in solido against the others, but under the deduction of the part of the debtor whom he has discharged from the debt in solido.”

      Art. 2203. “The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
      In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”


author: LOTTINGER, Judge.

text:
    Burl G. JACOBSEN and Mari Anne C. Jacobsen v. RYDER TRUCK RENTALS, INC., Stevens Meat Company, Inc., XYZ Insurance Company and Mr. Young.
    No. 82 CA 0526.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.
    Charles M. Reid, Amite, for plaintiff.

      Robert J. Vandaworker, Baton Rouge, for defendants.
    Before LOTTINGER, PONDER and SHORTESS, JJ.
   LOTTINGER, Judge.

This court, ex proprio motu, issued a rule to show cause why this appeal should not be dismissed on the grounds that it was untimely.

Appellant, National Union Fire Insurance Company of Pittsburg, Pennsylvania, along with other defendants filed peremptory exceptions to plaintiffs’ petition. On May 8, 1980, the trial court maintained the exceptions of two of the defendants, but the judgment did not mention the disposition made by the trial judge of the appellant’s exception. Notice of this judgment was mailed on May 12,1980. On May 19, 1982, over two years after the judgment was signed, a motion for an appeal filed by appellant was granted. The obvious lateness of the appeal caused this court to issued the show cause order.

If appellant is appealing the May 8, 1980 judgment, arguing that the trial judge by not sustaining appellant’s exception by implication overruled its exception, then the appeal is obviously late. La.Code Civ.P. art. 2087.

Appellant argues that this is an unsigned interlocutory judgment which need not be signed to be appealed, and that there is no time period for seeking appellate relief from such an order, which causes irreparable harm. An interlocutory judgment causing irreparable injury is appeala-ble. La.Civ.P. art. 2083. However, appellant is in error when it argues that there is no time period within which to perfect an appeal from an interlocutory order or judgment. Louisiana Code of Civil Procedure article 2087 clearly refers to “an appealable order or judgment.”

There is an absence in the record of any minute entry showing the disposition of appellant’s exception. However, if the trial judge concomitantly with the sustaining of the exceptions as to other defendants also overruled appellant’s exception, then again the appeal is late. But we again emphasize that there is no minute entry showing such.

Appellant also argues that if the appeal is to be dismissed, then the appeal should be treated as a writ application. Pretermitting any arguments as to whether such a practice is acceptable or not, this court will not entertain any writ application filed after the expiration of delays afforded in cases of appeal.

Therefore, for the above and foregoing reasons, the appeal of appellant, National Union Fire Insurance Company of Pitts-burg, Pennsylvania, is dismissed at its costs.

APPEAL DISMISSED.


text:
    Vince DUNN v. DEPARTMENT OF HEALTH & HUMAN RESOURCES, etc.
    No. 82 CM 0550.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Laura Denson Holmes, Baton Rouge, for State Civil Service Dept.
    Prank H. Perez, Baton Rouge, for Dept, of Health & Human Resources.
    Raymond L. Simmons, Baton Rouge, for Vince Dunn, plaintiff.
    Before LOTTINGER, PONDER and SHORTESS, JJ.
   SHORTESS, Judge.

The Director of the Department of State Civil Service (Department) has moved to dismiss this unlodged appeal on the ground that it was not timely filed.

Vince Dunn (appellant) was terminated from his employment as Attorney I with the Department of Health and Human Resources (appellee) by letter dated August 22, 1980. A timely notice of appeal was dated September 19, 1980. On December 22,1980, appellee filed a motion for summary disposition. On October 7, 1981, a hearing was held, limited to the request for summary disposition. On June 18,1982, the Civil Service Commission (Commission) rendered and filed its opinion, granting the request for summary disposition dismissing appellant’s appeal. Appellant then hand delivered to the Commission a written application for appeal on July 21, 1982. On July 26, this motion to dismiss the unlodged appeal was filed. On July 28, we issued an order to the parties to show cause why this appeal should not be dismissed.

Appellant, in response to the motion to dismiss, presents several arguments:

1.A motion to recuse an employee of the Commission was filed in these proceedings but was never acted upon. That matter is totally unrelated to this motion to dismiss. A motion to recuse has not been filed in this court.

2. The Department should not be permitted to participate in this appeal. The law is clear; LSA-R.S. 13:3417 requires the Department to intervene in these proceedings, and by law it becomes an indispensable party.

3. The final decision should have been mailed to appellant before the appeal delays began to run. Appellant in argument cites La.C.C.P. art. 1913. This article is inapplicable. The applicable law is contained in Article 10, Section 12 of the Louisiana Constitution, which provides in part:

“The decision of a commission shall be subject to review on any question of law or fact on appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

The Commission’s rules, in pertinent part, are also applicable:

“13.28 Commission Action on Appeal
(a) After hearing of an appeal, the Commission shall make a written decision containing its findings of facts and conclusions, which shall be filed with the Director. The decision of the Commission shall be final on the day that it is filed with the Director.
(b) On the same date that the decision is filed with the Director, the Director shall mail to all interested parties a copy of the decision.”

The record indicates that a copy of the opinion was mailed to appellant and his attorney, Raymond L. Simmons, on June 18, 1982, the same day it was filed with the Director. In Smith v. Dept. of Health and Human Resources, 416 So.2d 94 (La.1982), our Supreme Court put to rest any contention that the Commission was not empowered to adopt rules which might conflict with statutory law, and held:

“La.Const. art. 10, § 10(A) vests the Commission ‘with broad and general rulemak-ing and subpoena powers for the administration and regulation of the classified service.... ’ This constitutional grant of rule-making power to the Commission precludes the legislature from enacting a statute which would nullify the Commission’s rule prohibiting a hearing from a final decision of the Commission. Accordingly, the rehearing provision of the Administrative Procedure Act is not applicable to decisions of the Commission. Cf. La. Consumers’ League, Inc. v. La. Public Service Commission, 351 So.2d 128 (La.1977).”

Appellant’s arguments are without merit. The appeal was filed on July 21, 1982, more than thirty days after the Commission’s decision became final. For all these reasons, the motion to dismiss the unlodged appeal is granted, at appellant’s costs.

APPEAL DISMISSED.


text:
    SENTRY INDEMNITY CO. v. Kenneth RESTER, State Farm Fire and Casualty Co., and/or State Farm General Insurance Co. and/or State Farm Mutual Automobile Insurance Co., and Frank L. Bodnar.
    No. 82 CA 0552.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Michael R. Sistrunk, New Orleans, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendant.
    Donald M. Fendlason, Bogalusa, for Marjorie L. Bush.
    Before LOTTINGER, PONDER and SHORTESS, JJ.
   LOTTINGER, Judge.

This court issued a show cause order on July 29, 1982, to the appellant to determine whether the appeal was timely filed.

Judgment was rendered on February 5, 1982, and notice of judgment was mailed on February 10, 1982. Appellant states in brief filed in response to the show cause order that a motion for a new trial was filed on February 16, 1982, but was misplaced by the office of the trial court clerk. Attached to the brief is a copy of a letter from the deputy clerk of the trial court indicating that the original motion for a new trial was filed with the clerk’s office on February 16, 1982, along with a check representing the advanced deposit, but that the clerk’s office could not locate the motion. Also attached to the brief is a copy of the check in payment of the advanced costs showing a date stamp of February 19 on the reverse side of the check.

Inasmuch as a show cause order was issued on July 29 to all counsel of record, including the trial judge, that appellant’s brief in response to the show cause order was filed with this court on August 5, and that no opposition has been filed to said brief, we are of the opinion that the motion for a new trial was filed timely, that the appeal was timely, and that the show cause order should be recalled.

Therefore, for the above and foregoing reasons, the show cause order issued by this court on July 29,1982 is recalled and vacated.

SHOW CAUSE ORDER RECALLED.


author: DOUCET, Judge.

text:
    David L. WILKINSON, etc., Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellees.
    No. 8006.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

This case was remanded to us for quantum determination. For the procedural history of this case and factual background see: Wilkinson v. Hartford Acc. & Indem. Co., 411 So.2d 22 (La.1982); and 400 So.2d 705 (La.App. 3rd Cir.1981).

Plaintiff’s son, David Len Wilkinson, a 12-year old seventh grader at defendants’ school, suffered serious lacerations to both arms and right knee on November 8, 1978 when he came in contact with ordinary glass, installed in the gymnasium where he was exercising, shattering the glass panel. He began bleeding profusely whereupon his coach administered first aid. From there he was taken to a hospital for additional treatment.

The youth was treated by Dr. M.L. Jar-rell, a surgeon, whose deposition indicates the lacerations were severe and painful, particularly those to the inside right bicep or volar medial aspect of the right elbow. Dr. Jarrell sutured the lacerations and released David to return home.

Thereafter, David was referred to Dr. Terry Cromwell, a plastic surgeon in Lafayette, whose report of March 7, 1980 indicated that surgical revision of the residual scars would improve its appearance 50-70%. Plaintiff has not yet been able, financially, to have the necessary cosmetic surgery performed for his son, thus the youth has lived with the scars the past years.

Plaintiff submits that the following cases are analogous and therefore suggestive of the award to be granted herein.

In Voelker v. Liberty Mutual Ins. Co., 190 So.2d 136 (La.App. 4th Cir.1966) a three-year old child was severely injured when a neighbor’s vicious dog attacked the boy, biting and chewing about his face, necessitating immediate surgery by an ophthalmologist and surgeon. The child was left with scars requiring future plastic surgery and the trauma required psychotherapy two or three times a week for one and one-half to two or three years. An award of $15,000 in general damages was affirmed.

Similarly, an award of $20,000 in general damages for vascular injuries and scarring was affirmed in Great American Ins. Co. v. Marshall, 855 So.2d 1044 (La.App. 4th Cir. 1978).

In Villetto v. Weilbacher, 377 So.2d 132 (La.App. 4th Cir.1979) an award of $3,000 for pain and suffering to a woman in her late 50’s, who had been permanently disfigured by unsightly scars to her leg, was found to be manifestly insufficient. Accordingly, the award was increased to $7,000, presumably the lowest amount which the trial court could have awarded under the circumstances.

In Young v. City of Franklinton, 387 So.2d 1390 (La.App. 1st Cir.1980) plaintiff Gatlin suffered second degree burns to 15% of both arms and his face following an explosion and was hospitalized for one month. He had residual scarring and skin discoloration on both arms and his upper back and a loss of pigmentation in his right hand. For his pain, suffering and residual scarring the trial court awarded $8,500.00. The appellate court amended said award, finding the lowest award that should have been made to be $15,000.00.

Doty v. Safeco Ins. Co., 400 So.2d 718 (La.App. 3rd Cir.1981) involved a 21-year old youth who had sustained severe lacerations and abrasions to the right side of his face and head, as well as suffering a mild whiplash injury and a fracture of the right zygomatic bone. Shattered glass had pierced his skin and left a grade 4 scar. For these injuries the trial court awarded general damages in the sum of $20,000, the dollar amount of defendant’s liability insurance. On appeal, defendant sought a decrease, while plaintiff sought an increase. We affirmed, finding the award to be within the much discretion afforded trial judges.

Plaintiff notes the dates of the respective cases cited and suggests the figures be adjusted accordingly for inflation.

Defendant contends the aforementioned cases are distinguishable and argues the following cases are more analogous. In Johnson v. Orleans Parish School Board, 261 So.2d 699 (La.App. 4th Cir.1972) a thirteen year old girl sustained glass lacerations, as a result of the school’s negligence, leaving a crescent shaped scar on the right posterior forearm, four centimeters long, a scar just above the right wrist, three centimeters in length, and a third scar on her left forearm, three centimeters in length and one-half centimeters wide. An award of $1,900 plus medical specials of $800 was found to be within the trial judge’s discretion and thus was affirmed.

In Centineo v. Anheuser-Busch, Inc., 276 So.2d 352 (La.App. 4th Cir.1973) plaintiff recovered damages for personal injuries incurred when she was cut by an exploding beer bottle, leaving a two inch raised scar healed with a keloid formation. On appeal her award of $3,800 for pain and suffering was reduced to $2,000.

In Vastola v. Insurance Company of North America, 204 So.2d 605 (La.App. 4th Cir.1967) the plaintiff’s 15-year old son incurred lacerations to his right forearm, middle finger of his right hand, and right thigh, all of which required suturing. Medical treatment consisted of 19 office visits, 12 of which were for physical therapy. His injuries resulted in a 10% loss of the backward extension of the middle finger on his right hand and two scars on his right thigh, which were generally covered by clothing.

The court therein found the trial judge did not abuse his discretion in awarding only $1,750 in general damages.

Sentell v. American Service Mutual Ins. Co., 203 So.2d 784 (La.App. 2nd Cir.1967) arose out of a vehicular collision and resulted in two small lacerations to plaintiff’s scalp and a broken rib. Recovery was virtually complete with no significant residuals. The trial court’s award of $3,500 for pain and suffering was reduced to $1,500.

An award of $2,000 was found to be within the trial court’s wide discretion, in view of evidence showing the 13-year old victim had a prominent scar on his arm approximately one and one-half inches long and one-quarter inch wide which caused pain and restriction of activities. Boudoin v. Schwegmann Bros. Giant Supermarket, 371 So.2d 370 (La.App. 4th Cir.1979).

Defendant contends that in determining plaintiff’s damages this court must grant the lowest amount which the trial court could have awarded under the circumstances of the case, and in support thereof cites Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); and Bergeron v. Louisiana Department of Highways, 353 So.2d 469 (La.App. 3rd Cir.1977). The rule of the aforementioned cases applies when an appellate court finds a trial court’s award of damages to be manifestly erroneous and proceeds to increase or decrease the award. We find it has no application where, upon remand, this court is required to make the initial assessment of damages due to the Supreme Court’s finding of liability where heretofore none was found.

Each personal injury must be evaluated according to its own peculiar facts and circumstances. Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977). Realistically, in quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case (as is evidenced by the disparity between cases cited by opposing counsel). Coco v. Winston Industries, Inc., supra. However, we feel that an award of $17,500 plus medical specials would be adequate recovery in view of all the evidence.

According to Dr. Terry A. Cromwell, a plastic surgeon, the youth has been bothered by the lacerations of the right arm and has intermittent pain and numbness in the area of the elbow where he has a deep semi-circular sear. While at school David complains that when he is writing or using his arm for long periods of time the numbness and discomfort in the elbow area cause him to actually have to stop writing and rest the arm.

The sear on the volar medical aspect of the right elbow and ante-cubital fossa was described by Dr. Cromwell as “... quite wide. It appears to be about 2 cm in its widest area and in some places narrowing down to as much as 1 cm. This is a long area of scar, being about 10 to 12 cm vertically, up and down the arm, and about 8 to 10 cm in width. The scar above that is 8 cm long and about 2 cm wide including the suture marks on each side of the scar. The upper laceration must have been quite deep as on palpation the upper end of the scar is right over the brachial artery. Also the patient does have some loss of sensation in the area of the scar although he obviously has sensation to deep pressure and palpation as this area is quite tender to someone grabbing him on the elbow or upper arm area.”

Dr. Cromwell defined the scar as Grade III of the upper extremity, being a scar which is easily visible from across the room. However, the scar can be entirely hidden by a long sleeve shirt. Without the long sleeve shirt, Dr. Cromwell would attribute a IV Grade to the scar.

Dr. Cromwell was further of the opinion that appearance of the scar could be improved by excision of the scar and reelosing of the scar. Such an operation would improve the appearance by 50-75%. Thereafter David would have to wear a Jobst elastic sleeve, costing $30.00, for about six months. Dr. Cromwell’s fee for said operation would be $1,200 and the patient would require hospitalization for 3 to 5 days at between $300-$400 per day. Additionally post-operative physical therapy may be required.

Finally, Dr. Cromwell was of the opinion that the operation would result in a 50/50 chance of David’s hypersensitivity and numbness being improved.

In light of plaintiff’s past medical expenses incurred, totalling $400, and Dr. Cromwell’s estimate as to the cost of future medical treatment required, approximately $2,660, the plaintiff is hereby awarded $3,060 in special damages.

For the reasons set forth above it is ORDERED, ADJUDGED AND DECREED that there be a judgment in favor of plaintiff, David L. Wilkinson, and against Rap-ides Parish School Board and Hartford Accident & Indemnity Company, in the sum of $3,060.00, together with legal interest from date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be a judgment in favor of plaintiff David L. Wilkinson, as administrator of the estate of his minor son, David Len Wilkinson, and against defendants Rapides Parish School Board and Hartford Accident and Indemnity Co., in the sum of $17,500.00 together with legal interest from date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of these proceedings, at trial level and on appeal, are assessed against defendants Rap-ides Parish School Board and Hartford Accident and Indemnity Company.

RENDERED AS AMENDED.

      . The sum $3,060 is itemized as follows:
      $ 400.00 — past treatment 1,200.00 — surgical fee
      1,400.00 — 4 days at $350 each average, hospital expense
      60.00 — 2 Jobst Sleeves.


author: FORET, Judge.

text:
    NATIONWIDE FINANCIAL CORPORATION OF LOUISIANA, Plaintiff-Appellant, v. KAPLAN MOBILE HOME SALES, INC., and Warren J. Simon, Defendants-Appellees.
    No. 82-188.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      Lawrence Roe Dodd, Baton Rouge, for plaintiff-appellant.
    Edward O. Taulbee, IV, Lafayette, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

Nationwide Financial Corporation of Louisiana (plaintiff) brought this action for a deficiency judgment to recover the sum of $16,557.45 allegedly owed it by defendants, Kaplan Mobile Home Sales, Inc. (Kaplan) and Warren J. Simon (Simon).

The trial court, after trial on the merits, rendered judgment (1) in favor of defendant, Simon, and against plaintiff, sustaining peremptory exceptions of no right of action and no cause of action filed by him, and (2) in favor of plaintiff and against Kaplan, ordering Kaplan to pay plaintiff the sum of $6,328.28, together with legal interest from date of judicial demand. Plaintiff’s request for attorney’s fees was denied.

Plaintiff appeals from the trial court’s judgment and raises the following issues:

(1) Whether the trial court committed manifest error in sustaining the peremptory exceptions of no right of action and no cause of action filed by defendant, Simon;
(2) Whether the trial court committed manifest error in finding that plaintiff had failed to comply with the terms of the “Mobile Home Dealer Agreement”; and
(3) Whether the trial court committed manifest error in finding that plaintiff was unable to collect attorney’s fees.

FACTS

Two contracts were entered into by the parties on May 3, 1978. The first was a “Mobile Home Dealer Agreement” (Dealer Agreement) between plaintiff and Kaplan, which Simon signed as Kaplan’s president. In this contract, plaintiff agreed to finance the retail sales of mobile homes by Kaplan, by purchasing “... conditional sales contracts, chattel mortgages, security agreements, or other title retaining or lien instruments ... evidencing the time sale of Mobile Homes and/or Travel Trailers and for Motor Homes . . .

The second contract was a “Continuing Guaranty”, executed in favor of a number of companies by Simon, in which he agreed to pay these companies any debts due them from Kaplan “as fully as if each indebtedness was directly owing to said Finance Company by him ... ”.

Plaintiff, pursuant to the contracts, undertook to finance the retail sales of two mobile homes by Kaplan. One was sold to Dale Mott (Mott), and the other to Chris Menard (Menard). Ultimately, these persons were unable or unwilling to pay for the mobile homes. Menard executed an “Authority for Disposition”, in favor of plaintiff, by which he voluntarily returned the mobile home to plaintiff in return for a release from any further liability on the unpaid balance on it. Plaintiff later sold it. Mott filed for bankruptcy, and his bankruptcy trustee sold his mobile home to plaintiff, who in turn resold it.

Plaintiff, through these re-sales, was unable to realize the full amount owed it for financing the original sales of these mobile homes. It brought this action against defendants seeking to recover its losses based on the provisions of the above mentioned contracts. Defendants answered, denying the significant allegations of plaintiff’s petition.

DEFENDANT SIMON’S EXCEPTIONS

Simon filed peremptory exceptions of no right of action and no cause of action after plaintiff had rested its case. As to the exception of no right of action, Simon argued that plaintiff was not a party to the Continuing Guaranty and had no right to bring any action against him based on that contract. To the contrary, plaintiff pointed to the following language contained in that contract, arguing that it was a party to that instrument:

“Warren J. Simon and each of them hereinafter called the ‘Guarantors’ do hereby, jointly and severally guarantee to FIRST NATIONAL CITY CORPORATION, its subsidiaries, FIRST NATIONAL CITY BANK (“CITIBANK”), NATIONWIDE FINANCIAL SERVICES CORPORATION, ADVANCE MORTGAGE CORPORATION, and all subsidiaries and affiliates of the foregoing, hereinafter called the ‘Finance Company’, that ...” (Emphasis ours.)

Simon contended that there had been no evidence adduced to show that plaintiff was a subsidiary or affiliate of any of the named entities contained in the Continuing Guaranty. The trial court first noted that plaintiff was not named as a subsidiary or affiliate in the contract. It then stated that:

“Further, the guarantee states that “this agreement constitutes the entire contract and on [sic] waivers or modifications shall be valid unless written upon or attached to this contract.” No such attachment or writing includes plaintiff as a subsidiary. The Court finds that the “continuing guarantee” is ambiguous in that it attempts to favor all subsidiaries yet limits the agreement to the face of the contact [sic] or attachments. It is well settled that an ambiguous contract must be read against the maker. Accordingly, the Court finds that only the subsidiaries actually named were parties to the agreement.
“The Court finds that plaintiff was not a party to the continuing guarantee, nor did Mr. Simon, individually, derive any benefits from doing business with plaintiff. Accordingly, the Court sustains Mr. Simon’s exceptions of no right and no cause of action.”

It is our opinion that these findings of the trial court are clearly wrong, and that Simon’s exceptions of no right of action and no cause of action should have been overruled. We find no ambiguity in the Continuing Guaranty in its designation of the parties in whose favor Simon executed the contract. It clearly indicates that these parties include all subsidiaries and affiliates of the named companies, as illustrated below. Plaintiff has proven, by a preponderance of the evidence, that it is a subsidiary of one or more of these companies.

J.R. Vallee, Jr., plaintiff’s Collection Manager, indicated that plaintiff was such a subsidiary. The Dealer Agreement specifically names plaintiff as the entity to whom the offer, contained therein, was being made by Kaplan. Simon acknowledged that he had been informed during negotiations with plaintiff concerning the Dealer Agreement that he would have to execute a continuing guaranty of Kaplan’s corporate obligations. He identified the Continuing Guaranty, executed by him and introduced in evidence, as being the one he was informed he would have to execute. However, Simon became evasive when plaintiff’s counsel attempted to have him admit that he knew that he had executed the Continuing Guaranty in favor of plaintiff. He began to refer to the entities, in whose favor the contract had been executed, as the “lending agency”, “CITICORP”, “NATIONWIDE”, and “Nationwide Financial Corporation”. Simon did admit that he personally guaranteed the corporate obligations of Kaplan to Nationwide Financial Corporation by means of the Continuing Guaranty. Finally, while the Dealer Agreement specifically states that Kaplan’s offer is being made to Nationwide Financial Corporation of Louisiana (plaintiff), it is accepted by Steven J. Lanigan on behalf of Nationwide Financial Services Corporation, one of the companies named in the Continuing Guaranty.

The peremptory exception of no right of action raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. Lambert v. Donald G. Lambert Construction Co., 370 So.2d 1254 (La.1979); Budd Construction Co., Inc. v. City of Alexandria, 401 So.2d 1070 (La.App. 3 Cir.1981), writ denied, 404 So.2d 1262 (La.1981); see Official Revision Comments to LSA-C.C.P. Article 681.

The want of interest raised by the exception of no right of action relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit. Budd Construction Co., Inc. v. City of Alexandria, supra; Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir.1967); Curry v. Iberville Parish Sheriff’s Office, 378 So2d 159 (La.App. 1 Cir.1979).

LSA-C.C. Article 1799 provides:

“Art. 1799. Right of judicial enforcement
Art. 1799. It is a presumption of law that in every contract each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement, unless the contrary be expressed, or may be implied.”

Plaintiff seeks to judicially enforce certain rights granted it in the Continuing Guaranty, which Simon has admitted is a valid contract. We have found that plaintiff is a party to that contract. Thus, plaintiff falls as a matter of law within the general class (parties to a contract) in whose favor LSA-C.C. Article 1799 grants a cause of action to judicially enforce the performance of a contract. There is no merit to Simon’s exception of no right of action

Under the terms of the Continuing Guaranty, Simon has personally guaranteed the payment of Kaplan’s debts to plaintiff. We overrule both the exception of no right of action and no cause of action.

PLAINTIFF’S ALLEGED FAILURE TO COMPLY WITH THE TERMS OF THE DEALER AGREEMENT

Plaintiff contends that the trial court erred in finding that it had failed to comply with the terms of the Dealer Agreement in the manner in which it handled the acquisition and resale of the mobile home Kaplan had originally sold to Mott.

Vallee (plaintiff’s Collection Manager) gave the following testimony concerning the mobile home sold to Mott. He noted that there were problems with this sale from the beginning. The document evidencing the sale recited that Mott had put $1,907 cash as a down payment on the mobile home. However, a preverification check revealed that Mott had only put $700 cash as a down payment along with $1200 worth of furniture. Douglas Wrinkle, Ka-plan’s Secretary-Treasurer at the time, corroborated this, which constitutes a violation of some of the provisions of the Dealer Agreement by defendant, Kaplan. Mott had trouble making the payments on the mobile home and eventually instituted bankruptcy proceedings. He had purchased the mobile home on October 4, 1978, and filed for bankruptcy on November 2, 1979. The bankruptcy trustee sold the mobile home to plaintiff on April 16, 1980.

Vallee testified that on August 26, 1980, he sent Kaplan a letter known as a “REPOSSESSION PICK-UP ORDER” requesting that Kaplan notify plaintiff of the date on which the Mott mobile home was picked up and placed on Kaplan’s lot. Vallee identified a “REPOSSESSION/CHARGE-OFF FORM” dated April 22,1980, relating to the Mott mobile home. He stated that plaintiff had formal notice at this time that the mobile home could be picked up from the bankruptcy court and had requested defendants to do so. However, Simon wanted to leave the trailer where it was to possibly sell it to somebody else, rather than pick it up and bring it to Kaplan’s lot. Plaintiff agreed to this.

Vallee stated that plaintiff usually gave dealers six months to sell mobile homes that had been repossessed. Defendants were unable to sell the trailer within this time period, and this is when plaintiff sent them the above mentioned pick-up order in August. Plaintiff, itself, finally retrieved the mobile home on September 23, 1980, and later sold it. Simon admitted that plaintiff had financed the purchase of the mobile home by Mott, and that the sales contract had been assigned to it. Wrinkle confirmed this even though the assignment portion of that contract is blank where the name of the assignee is supposed to be filled in. However, Simon was unable to recall whether he had received the pick-up order on the Mott mobile home from plaintiff. He stated that plaintiff had made no offer to allow him to place the Mott mobile home on his lot, and that he thought, "... they had the whole prerogative to do whatever they wanted with it ...” Simon testified that he was given no opportunity to repurchase the Mott mobile home. However, Simon admitted that, while he knew the Mott mobile home had been repossessed by plaintiff, he made no offer to repurchase it from plaintiff.

The evidence shows that the assignment of the Mott contract to plaintiff by Kaplan was made “with recourse”.. The assignment contains the following language:

“1. RECOURSE: Seller absolutely and unconditionally guarantees the prompt payment of the unpaid balance of the Total of Payments, after deducting the unearned finance charge, when due, whether at maturity or by acceleration together with all costs, expenses and reasonable attorneys’ fees incurred in the collection of said amount. Seller waives all defenses arising by reason of any failure to give notice of acceptance of this guaranty or default of Buyer, or arising by reason of any extension of time given to Buyer, or by reason of any failure by Assignee to pursue Buyer or the Collateral or other property of Buyer or to resort to other security or remedies which may be available, and waives any and all defenses arising out of the guarantor relationship.” (Emphasis ours).

The Dealer Agreement contains the following paragraphs pertinent to a resolution of the issue before us:

“6. With respect to contracts assigned and/or endorsed to you by us, “with recourse”, we promise that in the event of default by the retail purchaser under any of the terms or conditions of the contract that we will pay you the then unpaid balance on the contract, less your customary prepayment rebate plus an amount equal to the same percentage of our Dealer Reserve (Sub Paragraph B of Paragraph 1) as the prepayment rebate bears to the total finance charge, and you shall reassign to us, without recourse or warranty, any and all documents originally assigned by us to you on such paper.
7. We waive presentment, demand, notice and protest on all contracts, and all other demands and notices, and consent that you may grant extensions of time, make compromises with the retail time sale purchaser or other person liable on the contracts, and otherwise handle the making of collections in accordance with your best judgment, without affecting our liability hereunder.” (Emphasis ours.)
(“we” and “us” refer to Kaplan, while “you” refers to plaintiff.)

As can be seen, paragraph 6 sets out in some detail the procedure to be followed by the parties in the event of default by the retail purchaser. Paragraph 7 gives plaintiff much broader powers in handling such matters. The trial court focused on paragraph 6 in making its finding that plaintiff had failed to comply with the terms of the Dealer Agreement. It concluded that defendants had been given no opportunity to resell the Mott mobile home before plaintiff picked it up and resold it. However, the record shows that this conclusion is clearly wrong. As noted above, defendants were given six months to resell the Mott mobile home, but failed to do so. Further, while defendants knew that the Mott mobile home had been repossessed by plaintiff, they made no effort to pay plaintiff the unpaid balance on the Mott contract, etc., as contemplated by paragraph 6. In any event, we find that plaintiff acted well within the broad range of discretion given it by paragraph 7 and the recourse provisions of the assignment agreement by which plaintiff acquired the Mott contract.

It is our opinion that the trial court’s finding that plaintiff had failed to comply with the terms of the Dealer Agreement in repurchasing and reselling the Mott mobile home is clearly wrong.

The evidence shows that defendants are liable, in solido, to plaintiff for the sum of $9,844.57 on the Mott contract. The trial court awarded plaintiff $6,328.28 on the Menard contract. Defendants have taken no appeal from the trial court’s judgment, nor have they answered plaintiff’s appeal. Thus, the trial court’s judgment regarding the Menard contract is final. We find that defendants are indebted to plaintiff in the total amount of $16,172.85, with legal interest from date of judicial demand until paid.

ATTORNEY’S FEES

Plaintiff contends that the trial court committed manifest error in finding that it was unable to collect attorney’s fees from defendants as it had failed to follow the procedure set out in the Dealer Agreement for collecting amounts owed it by defendants upon default of the retail purchaser. Plaintiff argues that a certain provision of the Dealer Agreement specifically grants it the right to recover attorney’s fees in a situation such as that in the action sub judice.

We are in partial agreement with the trial court’s finding, but for different reasons. We have reviewed the provisions of the Dealer Agreement relied on by plaintiff. It provides that plaintiff may recover attorney’s fees as an expense of collection from defendant, Kaplan, when Kaplan has breached certain warranties and representations, enumerated in paragraph 3 of the Dealer Agreement, regarding a retail sales contract purchased by plaintiff from Ka-plan. As noted above, there was some evidence to the effect that one of these representations and/or warranties may have been breached. However, plaintiff took no action with respect to that breach. It has made no use of that breach as a basis for its present action against defendants. We can find no provision in the contracts entered in evidence which would allow plaintiff to collect attorney’s fees from Kaplan under the facts and circumstances present in this action.

However, the Continuing Guaranty does provide that, “... in the event the said Debtor (Kaplan) fails at any time or times to promptly pay any and all indebtedness which now exists and/or may hereafter accrue from said Debtor to said Finance Company (plaintiff) as the same becomes due, the undersigned (Simon) and each of them hereby jointly and severally promise to pay any and all such indebtedness as the same becomes due from said Debtor to said Finance Company, forthwith, upon demand, with all attorney’s fees incurred in enforcing payment under this instrument ... ”.

It is obvious that plaintiff has incurred attorney’s fees in enforcing payment by Simon of Kaplan’s debts, which Simon personally obligated himself to pay under the provisions of the Continuing Guaranty. Thus, Simon is liable to plaintiff for these attorney’s fees.

We are unable to make a determination of the amount of attorney’s fees incurred by plaintiff in enforcing payment under the terms of the Continuing Guaranty. We will remand to the trial court with instructions that it allow plaintiff to introduce evidence pertaining to the amount of attorney’s fees incurred by it in enforcing payment under the Continuing Guaranty, and that it make a determination of the amount of said attorney’s fees based on the evidence presented.

DECREE

For the above and foregoing reasons, the judgment of the trial court denying plaintiff recovery of the amounts owed it by defendants as a result of the losses suffered by it on the Mott contract is reversed. The judgment of the trial court denying plaintiff attorney’s fees under the provisions of the Dealer Agreement is affirmed. The exceptions of no right of action and no cause of action, filed by Simon, are overruled.

Judgment is hereby rendered in favor of plaintiff and against defendants, jointly, severally, and in solido, in the sum of $9,844.57, on the Mott contract. The trial court’s judgment awarding plaintiff $6,328.28 for losses it suffered on the Me-nard contract is now final, making the total award to plaintiff the sum of $16,172.85, together with legal interest from date of judicial demand until paid.

We remand to the trial court for further proceedings relating to an award of attorney’s fees.

All costs of this appeal, and in the trial court, are assessed against defendants-ap-pellees.

REVERSED IN PART, AFFIRMED IN PART, RENDERED IN PART AND REMANDED WITH INSTRUCTIONS.

      . There is no merit to Simon’s exception of no cause of action either. A review of the allegations of plaintiffs petition, in which all well-pleaded facts must be accepted as true and all doubts resolved in favor of sufficiency of the petition for purposes of the exception, reveals that it does state a cause of action against defendants under LSA-C.C. Article 1799.

      . The Continuing Guaranty executed by Simon contains the following language: “... the Guarantors hereunder and each of them being bound to the payment of each and all indebtedness of said debtor (Kaplan) to said Finance Company whether now existing or hereafter accruing, as fully as if each indebtedness was directly owing to said Finance Company by him


text:
    SUCCESSION OF James R. CARMOUCHE
    No. 82-203.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.

      John T. Bennett, Marksville, for plaintiff-appellant.
    Knoll & Knoll, Jerold Eddie Knoll, Marksville, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

The trial judge found appellee was the biological child of the decedent, legitimated by the marriage of his parents. In accordance with that finding judgment was entered decreeing Gilbert Gene Ariza, appel-lee, to be the sole surviving child and heir of James R. Carmouche and as such entitled to be placed in possession of all the property belonging to the Succession of James R. Carmouche. From that judgment plaintiff, Annie Brinkley Carmouche, mother of the decedent, appeals. We affirm.

This case concerns the Succession of James R. Carmouche, who died on October 20, 1981 in Alexandria, Louisiana, after having been struck by an automobile while attempting to cross Louisiana Highway # 1. James R. Carmouche was domiciled in Marksville, Louisiana at the time of his death. He was married once and then to Haddy Frank Carmouche on June 11, 1970 in Marksville. A Petition for Notice of Application for Appointment was filed on behalf of Annie Brinkley Carmouche, the mother of James Carmouche, on November 12, 1981. Subsequent to this, a Petition to be Appointed Administrator was filed on behalf of Annie Brinkley Carmouche on December 16, 1981. The estate included a life insurance policy in the amount of $25,000 from Vulcan Life Insurance Company. The total net estate was valued at $22,499.54. On December 24,1981 a Petition for Recognition and Possession was filed on behalf of Gilbert Gene Ariza, appellee, alleging that James Carmouche was the natural father of Gilbert Ariza and that Gilbert Ariza was legitimated by the marriage of Haddie Frank, his mother, and James Carmouche.

A hearing on the rule was held on February 17, 1982. The trial judge ruled that Gilbert Gene Ariza, appellee, was recognized and decreed to be the sole surviving child and heir of the decedent, James R. Carmouche and as such, was entitled to be placed in possession of all the property in the Succession. Plaintiff appealed devolu-tively.

Appellee, Gilbert Gene Ariza, was born on July 25,1959. At the time of his conception and birth, Louis Ariza and Haddie Ariza were husband and wife. Louis’ job as a seaman required that he be away from the matrimonial domicile for long periods of time. In the latter part of the 1950’s, the exact date being in dispute, the couple ceased any resemblance of living together. Louis Ariza and Haddie Frank Ariza were judicially divorced on November 19, 1964 pursuant to a petition for divorce filed by Louis Ariza in Jefferson County, Texas on March 21,1963. Subsequent to this divorce, James Carmouche, the decedent, and Had-die Frank were married in 1970. Thereafter, James Carmouche died on October 20, 1981.

Preliminarily, we observe the law applicable to the case. Civil Code Article 184 provides:

Art. 184. Presumed paternity of husband. The husband of the mother is presumed to be the father of all children born or conceived during the marriage.

This presumption is, of course, re-buttable. Succession of Mitchell, 328 So.2d 451 (La.1974).

Civil Code Article 198 provides:

Art. 198. Legitimation by subsequent marriage of parents. Illegitimate children are legitimated by the subsequent marriage of their father and mother, whenever the latter have formally or informally acknowledged them as their children, either before or after the marriage.

This codal provision has its origin in our French ancestry. As Plainol noted: “Legitimation has an incontestable moral influence. It induces the transformation of irregular households into legitimate families.” Plainol, Civil Law Treatise, Volume, Section 1551, p. 858. The policy behind this provision has, no doubt, been fortified by constitutional developments of recent time. The Louisiana provisions, like the French legislation and judicial interpretations, reflect an attempt to have legal parenthood coincide with biological parenthood, at least where parents establish a legal family entity through the civil relationship created by the marriage of the father and mother.

The issues presented an appeal, as posed by appellant, are:

(1) Is Gilbert Gene Ariza' the illegitimate child of James Carmouche?
(2) Was Gilbert Gene Ariza formally or informally acknowledged by James Carmouche and Haddie Carmouche that he was the child of James and Haddie Carmouche?
(3) Did Gilbert Ariza rebut the presumption of LSA-C.C. Article 184 that Louis Ariza is his biological father?

In support of her contention that James Carmouche was not the father of Gilbert Ariza, nor did he acknowledge him as such, appellant notes that appellee’s birth certificate listed Louis G. Ariza as the father, as did the presumptive father’s petition for divorce, dated March 21, 1963. Paragraph 3 of said petition states that two children were born of the marriage, Louis Ariza, Jr. and Gilbert Ariza. Louis Ariza’s third child, Allen Ariza, was not mentioned in the petition inasmuch as he was born in 1949, prior to the Ariza marriage of 1952. The petition also stated that it would be in the best interest of the children if custody were awarded to defendant Haddie Ariza. A default judgment was rendered in plaintiff’s favor, granting the relief prayed for, ordering petitioner to pay for support of two of his children.

Furthermore, appellant notes that Gilbert Ariza went by the legal name of Ariza throughout his life, naming Louis Ariza as father on his marriage certificate. Additionally, when appellee’s alleged father, James Carmouche, filed for divorce against Haddie Frank Carmouche, appellee’s undisputed mother, the allegations of the petition stated that no children were born between them. Defendant’s answer admitted said allegation.

On the other hand, appellee produced substantial evidence that Gilbert Ariza was indeed the biological son of James Car-mouche and his father acknowledged him as such. Cleveland Carmouche, uncle of James Carmouche, testified that decedent told him appellee was his son. Two other paternal uncles of decedent, Leo Carmouche and Kirby Carmouche, testified likewise.

Daniel Bordelon, platoon sergeant and federal technician with the National Guard, 527 Engineers, B Company, Marksville, Louisiana, testified that he had developed a close relationship with the decedent, James R. Carmouche, since their first acquaintance in 1976. His testimony shows that he first met Gilbert Ariza through James Car-mouche who introduced Gilbert as his son. Mr. Bordelon testified that James Car-mouche had requested he (Bordelon), as platoon sergeant, transfer his son (Gilbert) to the same platoon. Because Mr. Bordelon did not understand that Gilbert carried the surname of Ariza, and not Carmouche, the wrong individual was transferred to the platoon. This gave rise to an incident wherein the decedent spoke to Gilbert about having his last name changed to Car-mouche. When questioned on direct examination, Mr. Bordelon testified as follows:

“Q. So, he wanted him to change his name to Carmouche?
A. He says, what you ought to do is change that name to — change that name tag. We have name tags, over this — I think is’t [sic] on the right sie [sic], if I can recall. He says, what you need to do, Ariza, is change that to Carmouche, so people won’t get mixed up and know who you are.”

This testimony with regard to the desires of the decedent to have Gilbert change his name from Ariza to Carmouche is substantiated by the testimony of Olen Ford, another member of the Marksville National Guard Unit. Mr. Ford also heard James Carmouche tell Gilbert Ariza he should change his name tag from “Gilbert Ariza” to “Gilbert Carmouche” and carry the Car-mouche family name.

When asked how Gilbert and the decedent referred to the other when addressing each other, Mr. Bordelon responded as follows:

“A. He called him son all the time.
Q. Can you tell me what Gilbert would call James?
A. At sometimes he’d call him James, and at other times he’d call him daddy.
Q. And, this was in your presence?
A. Ye.
Q. You’ve overheard this?
A. Yes, many times.

Numerous other members of the guard testified similarly.

Ellis Sampson recalled James Carmouche acknowledging Gilbert Ariza publicly as his son and comparing their physical resemblances, to-wit:

“A. James and I use [sic] to ride together sometimes, and fooling around. And, we’d come to a discussion, and he would tell me that was his son. He said, Ariza is my son.
Q. O.K.
A. And, I would kid around, and I would say, why it would be Ariza instead of Carmouche? He said look at the face.
Q. He said look at the face?
A. Right.
Q. O.K. were there ever any times when he actually had — when both of ’em was there, and have you compared them?
A. Oh yes. Several occasions at the Guard he would do that. He was horsing around, and I would ask him like that, I’d say, who is this, just kidding around? He said, that’s my son. So, he would put his arm around him and say, look at this, look the resemblance. And, on another occasion, he would say, — I would ask him what about the name tag? He’d say, it doesn’t matter. Just look at the face.”

Gerard Prier, also of the Marksville National Guard Unit, recalled questioning James Carmouche about a rumor that Gilbert Ariza was his son. He testified as follows:

“Q. O.K. Now, did you ever have any conversation, or did James ever acknowledge to you that he was the real father, the natural father of Gilbert Ariza?
A. Yes, When he was at Fort Polk — we usually go to Fort Polk I think somewhere around April — March or April, where we do our weapon qualifications. And, you know, at night time, we’d be just sitting around, maybe like a little camp fire. And, we’d usually be shooting the bull, you know. Sometimes, we’d end up talking about the children that they have outside of marriage, or something like that. And, James, you know, I had heard a rumer that Ariza was his child. And, I asked him about it at that time.
Q. O.K. You asked who about it?
A. James Carmouche.
Q. You asked James Carmouche personally?
A. Right.
Q. About whether or not the rumor was correct?
A. Right.
Q. And, what did he tell you?
A. He said it was. He said that Ariza was his son, and then he walked over to him and hugged him around the shoulder, and he said, look at him, and look at the rest of ’em, look at their hair. So,.. .
Q. O.K. so, at the time that he told you — that he acknowledged to you in the presence of other people and Gilbert, is that correct?
A. Right, that’s correct.
Q. That this is my son, went around there and hugged him?
A. Right.
Q. and, you saw this?
A. I did.
Q. And, you heard that?
A. Right.”

Mr. Prier also testified with regard to the pride held by James Carmouche for his son Gilbert Ariza and the father’s interest in his welfare and well-being.

The testimonies of Haddie Frank, mother of Gilbert Ariza, and Louis Ariza, Sr., the presumptive father, reflects that they were married in 1952 in Port Arthur, Texas and were subsequently divorced in 1964. According to their testimonies, they stopped living together in 1957 when Mr. Ariza left Avoyelles Parish to work as a merchant seaman. His work took him first to New York where he stayed for two years and then to San Francisco where he stayed three years. Both Haddie Frank and Louis Ariza, Sr. testified that Mr. Ariza did not return to Avoyelles Parish to see Haddie Frank until 1963 when he advised her he had decided to file for a divorce. Haddie Frank further testified that she did not have sexual intercourse with Louis Ariza, Sr. at any time since 1957 when he left Avoyelles Parish. Her testimony further reflects that she was having an affair with James R. Carmouche commencing in 1957. At first, James Carmouche would visit her on an infrequent basis and subsequently the couple commenced living together. Moreover Haddie Frank identified James Car-mouche as the father of Gilbert Ariza.

When questioned as to whether appellee was his son, Louis Ariza testified as follows:

“Q. O.K. at any time, from 1957, when you left here, until 1959, when Gilbert was born, did you ever come back over here to Marksville? Or did Haddie ever meet you anywhere, where y’all had any intercourse?
A. No, no, no.
Q. If she had a child that would have been born in July of 1959, is there any possible way that that child could be your natural child?
A. It’s impossible.”

To corroborate this testimony, mail received by Haddie Frank from her husband Louis, beginning with a 'postcard from Bombay, India dated March 14, 1958, and ending with an envelope postmarked Fort Lauder-dale, Florida June 27, 1959, was introduced into evidence.

The record further discloses that Gilbert Ariza had upon occasion carried the name of Carmouche as reflected by an identification card from the Louisiana Department of Public Welfare. Additionally, a newspaper article captioned “Area Obituaries” printed by a local paper, the Avoyelles Press, dated November 3, 1981, wherein it was stated James R. Carmouche was survived by “one son, Gilbert, of Marksville” was introduced into evidence.

Furthermore, the testimonies of Jules Frank and his wife, Pearl Frank, also support appellee’s position that James Car-mouche acknowledged Gilbert Ariza as his son. The testimony of Jules Frank places James Carmouche living in the house with Haddie Frank on Washington Street in Marksville, Louisiana. He recites an incident which occurred during Haddie’s pregnancy for Gilbert Ariza and places James Carmouche living in her home at the time. He too recalled that Louis Ariza left Marks-ville in 1957 and did not return to Avoyelles Parish until some 4 or 5 years after his departure in 1957. The testimony of Jules Frank is in accord with that of his wife, Pearl Frank, who also placed James Car-mouche living with Haddie Frank during her pregnancy for their son, Gilbert Ariza. Mrs. Frank recalled James Carmouche placing his hand on Haddie’s stomach when she was pregnant, and with his hand on her stomach, wishing for a boy baby.

The testimony of Sheila Ariza, wife of Gilbert Ariza, reveals her recollection of James Carmouche first meeting their infant-child, Gilbert Ariza, Jr., and he acknowledged the infant as his first-born grandchild.

Appellant seeks to discredit appellee’s evidence as merely representative of the bond which exists between a stepfather and stepson. While much of the evidence could be so construed, we cannot conclude the trial judge was clearly wrong in finding otherwise. The documents, hereinabove, relied upon by appellant could easily be interpreted as a situation wherein parents sought to spare “their” child of the stigma of illegitimacy inflicted by society, at that time, perpetuated by the courts. With the exception of those documents wherein Gilbert Ariza was personally involved, appellee was not party to any of appellant’s supportive evidence. In other words, appellee was a third party insofar as the majority of appellant’s evidence is concerned; hence we know of no form of estoppel which would preclude ap-pellee from sharing his father’s wealth.

Our review of the record supports the trial judge’s conclusion that appellee rebutted the presumption of C.C. Art. 184. James Carmouche acknowledged Gilbert Ariza as his son. The trial judge, applying C.C. Art. 198, correctly concluded appellee was legitimated by the marriage of his parents, thereby entitling him to the benefits of forced heirship.

We believe the result reached herein to be in accord with Succession of Mitchell, supra. There, the Supremé Court was faced with the factual situation where children were born during the marriage of their mother and first husband. The mother later divorced this husband and married the biological father of these two children. The first marriage commenced in 1926. Thereafter, the first husband moved to Illinois, never to return or contact his wife. In 1930, while the mother was still married to the first husband, she began to live with the children’s biological father. The children were born between 1931 and 1937. At the time of their birth, they were registered under the name of the biological father, the second husband of their mother. The mother did not marry the second husband until 1941. A divorce was granted to the mother and her first husband a few days before she married the second husband, the biological father of the children. The children had been raised as the second husband’s children and were considered to be the second husband’s children by the community in which they lived, as here. When the father died, the biological children sought to participate in his estate. The trial court dismissed plaintiffs’ suit and the appellate court affirmed. A unanimous Supreme Court reversed, applying C.C. Art. 198.

Considering the due regard rightly given to trial courts’ factual findings, the rule of Mitchell is all the more applicable to the case at bar.

Accordingly, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.


author: STOKER, Judge.

text:
    Felix A. DEJEAN, III, Plaintiff-Defendant-in-Reconvention-Appellee, v. Elie NOEL, Defendant. Mary Dugas Miller, Individually and as Natural Tutrix of her Minor Children, Third Party Defendant & Third Party Plaintiff-Appellant.
    No. 82-211.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Harold L. Savoie, Lafayette, for defendant.
    Felix A. DeJean, III, Opelousas, pro se.
    Olivier & Brinkhaus, Armand J. Brink-haus, Sunset, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit for rescission of a contract of sale between Bobby Miller and Felix A. DeJean, III. Appellant, Mary Dugas Miller, sues for the rescission as representative of Bobby Miller’s children. The grounds are lesion beyond moiety, lack of consideration, and fraud. This action was originally an incidental demand, but was severed at the trial of the main demand and tried separately. The trial court rejected the demands of the appellant, and she appeals. Being of the opinion that the district court correctly rendered judgment for the appel-lee, we affirm.

BACKGROUND FACTS

Mary Miller’s husband, Bobby G. Miller, transferred to Felix A. DeJean, III, all of his interest in and to immovable property, for a price of $8,000. Although the written act of sale did not say so, it was established at trial that Bobby Miller’s interest in the property was Vfe of the land described therein, and VÍ2 of a house situated somewhere on the property.

LESION BEYOND MOIETY

The evidence adduced at the trial court does not support appellant’s lesion beyond moiety contention. In a letter to the involved attorneys which was indexed in the record as “written reasons”, the trial court states the value of Miller’s interest was $11,000 to $12,000. Although no explanation is given for these figures, the testimony at trial by two real estate appraisers shows that the $8,000 price of the sale was not a consideration of less than 50% of the value of the property at the time of the sale.

Mr. Babineaux, a real estate appraiser well known to the trial court, testified that the value of the 49.35 acres was $74,-025, which reflects a value per acre of $1,500. The $1,500 per acre was described by Mr. Babineaux as being the “lower limit” of the value range of this piece of property. He appraised the property at an “upper limit” of $2,000 per acre. In their briefs, counsel for both sides appear to accept the lower figure of $1,500 as properly used by Mr. Babineaux in arriving at the total value of the acreage. The value of the house was appraised by Mr. Babineaux at $28,944.

The other appraiser, Mr. Dunbar, concurred with Mr. Babineaux’s appraisal of $1,500 per acre for the land, although he appraised 47.87 acres instead of 49.35. Mr. Dunbar also said the house was worth only $13,000 at the time of the sale.

A sale may be rescinded by the vendor “[i]f the vendor has been aggrieved for more than half the value of an immovable estate by him sold . .. ”. LSA-C.C. art. 2589. It is clear that, irrespective of which appraiser’s evaluation is used, the $8,000 price of the sale is more than half of the total of Bobby Miller’s Ve interest in the land and V12 interest in the house. This is even more evident when it is considered that the Miller-DeJean sale was made subsequent to a judgment taken by Mary Miller against Bobby Miller and filed in the appropriate mortgage records. This created a judicial mortgage of over $6,000 against the property. Mr. DeJean testified that he was aware of this incumbrance and knowingly took the property interest subject to the mortgage. The value of the property at the time of the sale was therefore diminished by the amount of the judicial mortgage. Thus, appellant’s demands for rescission on the basis of lesion beyond moiety cannot be upheld.

LACK OF CONSIDERATION

Appellant makes the allegation in his petition for reconvention, but not clearly in his brief, that no consideration was in fact paid, and alternatively, that the consideration was insufficient. We reject both contentions.

The act of sale states that the $8,000 price was “cash in hand paid”. The appel-lee, Mr. DeJean, testified at trial that no payment in cash was in fact made. However, it is uncontested that Mr. DeJean represented Bobby Miller on more than one occasion in defense of serious criminal charges, of which Bobby Miller was acquitted. Mr. DeJean testified that his fee, agreed to by Bobby Miller before the completion of representation, was the $8,000 price in the contract of sale. Thus, there was a consideration for the transfer of the immovables.

In response to allegations in appellant’s reconventional demand that the fee consideration was insufficient, appellee produced at trial Mr. Robert DeJean who testified as an expert on legal fees in criminal cases. There was no objection to this testimony from the appellant. Robert DeJean testified that $8,000 is not an unreasonable fee for legal services rendered under circumstances similar to the ones facing Bobby Miller. It is noted that the appellant produced no witness to rebut this testimony. Appellant has failed to prove a lack of consideration to support the contract.

FRAUD

Appellant vaguely referred to fraud at trial and in his brief. Any such contention is unfounded. The trial court found no evidence of fraud nor do we.

DECREE

As we previously mentioned, appellant’s action was originally a reconventional demand. As a result of the disposition of the main demand and various third party demands, judgment was entered for Felix De-Jean granting him a credit of $750 against the recorded judicial mortgage of Mary Miller which had attached to the subject property. Mary Miller has made no issue as to this portion of the trial court’s judgment, and we find no error in the trial court’s action in this regard.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    CITY OF EUNICE, Plaintiff-Appellee, v. Sam YOUNG, Defendant-Appellant.
    No. 82-218.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    McKernan & Jones, Keith D. Jones, Baton Rouge for defendant-appellant.
    Tate & McManus, Kearney Tate, Eunice, for plaintiff-appellee.
    Mouton,' Roy, Carmouche & Bivins, H. Purvis Carmouche, Jr., Lafayette, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

By this suit on an open account, plaintiff City of Eunice seeks recovery of the sum of $8,593.98 from defendant, Sam Young, for natural gas provided by plaintiff to defendant in the months of September, October, and November of 1979. Defendant filed a third party demand against Eastgate Corporation alleging, alternatively in the event of an adverse judgment that Eastgate was liable to him for the amount claimed by the City. Evidently, (the record is not clear) defendant also filed a separate suit against Eastgate seeking the same relief sought in his third party demand in this suit. It appears defendant’s third party demand and the separate suit were consolidated and tried separately, the result of. which is not made part of this record. Therefore, on appeal we concern ourselves solely with plaintiff’s principal demand on open account.

After trial on the merits, judgment was rendered in favor of plaintiff and against defendant for $8,593.98 plus 7% interest from date of judicial demand, together with attorney’s fees in the amount of $1,500.00 and costs. Defendant appeals. We affirm.

At trial plaintiff introduced evidence establishing that it provided gas to defendant for the months in question. Earl Roger, plaintiff’s gas department clerk, testified concerning defendant’s gas bill, and in conjunction with his testimony plaintiff introduced the gas receipts for September, October, and November of 1979. The testimony of Mr. Roger and the receipts clearly show that defendant owes plaintiff the amount sued upon. Defendant offered no defense to plaintiff’s claim. We can only assume that defendant chose to rely on his third party demand which presumably was consolidated with the other suit. In view of the above, we find no error in the trial court’s ruling casting defendant in judgment for the amount claimed.

Nor will we disturb the trial court’s award of attorney’s fees. That award is based on La.R.S. 9:2781 which provides for reasonable attorney fees in suits on open account. We cannot say the $1,500.00 award, in this case, is unreasonable.

Inasmuch as defendant’s third party demand was consolidated with his other case and separately tried, we express no opinion thereon.

For the above and foregoing reasons the judgment of the district court granting judgment on plaintiff’s open account suit in the amount of $8,593.98, plus interest and costs, in addition to $1,500.00 attorney fees, is hereby affirmed.

AFFIRMED.

      . Young alleges in his third party demand that Eastgate, while laying telephone lines or cables for South Central Bell, cut or damaged the natural gas pipeline on his property, whereby he was billed for gas that he was not actually using.