text:
    CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS v. William J. GUSTE, Jr., Attorney General for the State of Louisiana.
    No. 13106.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 7, 1982.

      Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Evelyn T. Brooks, Asst. Attys. Gen., Dept, of Justice, New Orleans, for defendant-appellee.
    Before REDMANN, LOBRANO and WARD, JJ.
   WARD, Judge.

The City Civil Service Commission brought suit in the Civil District Court seeking a judgment that would declare unconstitutional those sections of Act 690 of 1980 which apply to the Commission. Act 690 amends both LSA-R.S. 15:255 and 15:256 which are set out in the appendix with the amendments incorporated. The Trial Judge upheld the constitutionality of the statute, and the Commission has appealed.

We will first consider that portion of Act 690 of 1980 that amends LSA-R.S. 15:255. The Act changed the earlier law which gave discretion to the City of New Orleans to enact a plan to pay witness fees not less than $15.00, but not more than $30.00 to off-duty law enforcement officers who testify in court. The City declined to enact the earlier suggested plan, probably because it was unwanted by City police officers, who are paid time and one-half of regular pay for testifying on off-duty hours under an existing pay plan adopted by the Commission. Act 690 would change the law by taking away the City’s discretion and requiring the City Civil Service Commission to adopt rules for the payment of witness fees to each law enforcement officer who must testify during his off-duty hours. The Act, vague to say the least, may be interpreted to require the Commission to adopt a plan to pay witness fees in addition to the time and one-half pay, or it may be interpreted to preempt the Commission pay plan and substitute the statutory witness fee plan. The State contends the statute should be interpreted to supplement the City plan; the Commission contends the statute in either event is unconstitutional.

Act 690, after first deleting that part of LSA-R.S. 15:255 which gave discretion to the City of New Orleans to enact a plan, added paragraph (2):

In the city of New Orleans, the Civil Service Commission shall establish rules for the payment of each law enforcement officer who because of his official connection with any criminal case as the arresting officer or in some other official capacity, is required to be present as a witness in any criminal case which is being tried in the Criminal District Court for the parish of Orleans during any time when he otherwise is not required to report to work or perform the duties of his job.

Act 690 also reenacts LSA-R.S. 15:255 B:

The plan adopted for the payment of witness fees to law enforcement officers shall be applicable to all law enforcement officers alike and shall be paid whenever any law enforcement officer is required to be present and is present in one or more cases in such courts during his regular time off.

The Commission argues that Act 690, insofar as it applies to the City Civil Service Commission, conflicts with Article X, Section 10(A)(1) of the Louisiana Constitution which grants to the Commission the exclusive power to make rules related to employment conditions, compensation, and disbursements, and uniform pay plans for police officers. Further, the Commission contends that neither Article X, Section 10(A)(1) nor any other provision of the Constitution grants authority to the Commission to adopt a plan for payment of witness fees, and hence the Commission’s authority cannot be enlarged by an Act of the legislature.

In answer to the Commission’s contentions, the State first claims that the act is “merely supplementary”, that it does not preempt the Commission’s plan, and that it is not in conflict with Article X, Section 10(A)(1) because Article X, Section 10(A)(1) reserves to the legislature the power to supplement the Commission’s uniform compensation plans for classified employees, and hence it may require the Commission to do so. Alternatively, the State contends that Act 690 is not in conflict with Article X, Section 10(A)(1) because the Act does not require supplemental compensation but only requires the payment of fees, which is distinguishable from compensation. To bolster both of its arguments, the State argues that a statute enacted by the legislature is presumed to be constitutional and that the party challenging that presumption bears the burden of proving the unconstitutionality of the statute. Further, when a court can reasonably do so, it will construe a statute so as to preserve its constitutionality. State v. Everfield, 342 So.2d 648 (La.1977), State v. Devall, 302 So.2d 909, 910 (La.1974).

Considering now the State’s first argument, while it is true that a statute enacted by the legislature enjoys a presumption in favor of its constitutionality, it is also true that “when a statute conflicts with a constitutional provision, the statute must fall.” City of Baton Rouge v. Short, 345 So.2d 37, 40 (La.1977). Article X, Section 10(A)(1) clearly vests the City Civil Service Commission with the exclusive powers to regulate the classified service in matters of compensation disbursements to classified employees, in this case, police officers.

But the State contends that the Constitution reserves to the legislature the power to supplement, by legislation, a uniform pay plan, and it may therefore compel the Commission to adopt a plan to provide for such supplemental compensation. The State relies upon the following words of Article X, Section 10(A)(1) which it claims are only illustrative of the power reserved to the legislature:

Nothing herein shall prevent the legislature from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.

The words are clear; the State’s argument is not. The clear language of the Constitution states that the power reserved to the legislature to enact laws to supplement pay plans is limited to plans that would affect an exclusive group of law enforcement officers: officers of the State Police, Public Safety and Department of Wildlife and Fisheries. The Constitution does not reserve power to the legislature to require the New Orleans City Civil Service Commission to establish a plan to pay supplemental compensation for witness fees to all off-duty law enforcement officers.

In the alternative, the State argues that if the legislature cannot require the Commission to supplement employees’ pay, Act 690 should be interpreted only to require the Commission to adopt a plan for payment of witness fees, which is not compensation within the meaning of Article X, Section 10(A)(1) of the Constitution.

Article X, Section 10(A)(1), however, cannot be fairly interpreted to include the setting of witness fees as one of the powers granted to the Commission. It provides:

Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulations of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; ....

If, on one hand, Act 690 is interpreted to equate witness fees with compensation, and then to require the Commission to adopt a plan for payment of compensation to off-duty officers, the Act is unconstitutional because Article X, Section 10(A)(1) of the Constitution has given to the City Civil Service Commission the exclusive power to set compensation and disbursements and to adopt uniform pay plans. If, on the other hand, Act 690 is interpreted to require the Commission to adopt a plan for payment of witness fees, it enlarges the Commission’s constitutionally limited scope of authority. In summary, we hold that Act 690 of 1980 amending LSA-R.S. 15:255A(2) is unconstitutional insofar as it applies to the Commission.

Because we have held that Act 690 of 1980 insofar as it amends LSA-R.S. 15:255 to add paragraph A(2) and requires the Commission to adopt a plan to pay witness fees is unconstitutional, it necessarily follows that that portion of Act 690 amending and reenacting LSA-R.S. 15:255B is unconstitutional, insofar as it affects the City Civil Service Commission. It states:

The plan adopted for the payment of witness fees to law enforcement officers shall be applicable to all law enforcement officers alike and shall be paid whenever any such law enforcement officer is required to be present and is present in one or more cases in such courts during his regular time off.

We now consider Act 690 as it amends LSA-R.S. 15:256. Since Act 690 now expressly amends LSA-R.S. 15:256 to exclude the City of New Orleans from its application, we will not consider the constitutionality of LSA-R.S. 15:256, as amended.

For the above reasons, we reverse the ruling of the Trial Judge. We now hold that portion of Act 690 which amends LSA-R.S. 15:255 A(2) is unconstitutional, and also that portion which amends 15:255B, insofar as it applies to the City Civil Service Commission, is unconstitutional.

APPENDIX

CIVIL SERVICE COMMISSION OF THE CITY OF NEW ORLEANS VERSUS WILLIAM J. GUSTE, JR., ATTORNEY GENERAL FOR THE STATE OF LOUISIANA, NO. 13106

Act 690 of 1980.

255. Plans for witness fees to off duty law enforcement officers

A.(l) The governing authority of each parish shall adopt a plan under which each law enforcement officer who because of his official connections with any criminal case as the arresting officer or in some other official capacity, is required to be present as a witness in any criminal case which is being tried in any district court during any time when he otherwise is not required to report to work or perform the duties of his job, shall be paid witness fees in the amount of fifteen dollars for each case for which his presence in the court is required and for which he was present. No officer shall be allowed more than thirty dollars in any one day regardless of the number of cases for which he was required to be present.

(2) In the city of New Orleans, the Civil Service Commission shall establish rules for the payment of each law enforcement officer who because of his official connection with any criminal case as the arresting officer or in some other official capacity, is required to be present as a witness in any criminal case which is being tried in the Criminal District Court for the parish of Orleans during any time when he otherwise is not required to report to work or perform the duties of his job.

B. The plan adopted for the payment of witness fees to law enforcement officers shall be applicable to all law enforcement officers alike and shall be paid whenever any law enforcement officer is required to be present and is present in one or more cases in such courts during his regular time off.

256. Fees where more than one case on same day

Except as provided in R.S. 15:255, no person shall be allowed, for attendance as a witness in criminal cases, more than is allowed in one case on the same day, or mileage for more than one case at a time. The provisions of this section shall not apply to the city of New Orleans.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Gustave H. RENZ v. OCHSNER FOUNDATION HOSPITAL/CLINIC.
    No. 5-131.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Gerald E. Meunier, New Orleans, for plaintiff-appellant.
    Adams & Reese, Henry B. Alsobrook, Jr. and Oscar L. Shoenfelt, III, New Orleans, for defendants-appellees.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment maintaining an exception of prematurity and dismissing his suit without prejudice.

The matter arises from personal injuries allegedly sustained by plaintiff as a result of the malfunction of a medical life support system following coronary by-pass surgery. Defendants, Ochsner Foundation Hospital/Clinic, filed the declinatory exception of prematurity based upon the fact that plaintiff’s claim had not been presented to a medical review panel, a presentation, defendants assert, required under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. It is conceded that both defendants qualify as health care providers within the contemplation of the act.

The sole issue for our determination is whether the trial court erred in finding plaintiff’s claim falls within the purview of the act, thus making the suit in the district court premature.

Plaintiff contends: (1) His claim in this suit is independent of his claim under the malpractice act, inasmuch as this suit is brought under C.C. Art. 2317, which covers liability without fault; and (2) the mechanical device in suit is not one specifically enumerated in the malpractice act, and thus is not subject to it. We disagree with both contentions.

The medical malpractice act requires that all malpractice claims against health care providers covered under the act must be submitted to a medical review panel prior to filing of suit. LSA-R.S. 40:1299.47 A and B.

Under the act, a “health care provider” is defined broadly to include a hospital and its employees acting in the course and scope of their employment. R.S. 40:1299.41A(1). Clearly, the unknown and unnamed employee who connected the life support system to plaintiff is an employee of the hospital and no allegation has been made that the employee was acting other than in the course and scope of his employment when the accident occurred, or that the alleged tort was intentional.

As used in the act, malpractice includes any unintentional tort based on health care rendered by the health care provider to the patient. R.S. 40:1299.41A(8). It further includes any act or treatment performed or furnished by a health provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement. R.S. 40:1299.41A(9). The alleged tort suffered by plaintiff was one arising out of treatment rendered during his stay in the hospital.

In Cashio v. Baton Rouge General Hospital, 378 So.2d 182, the plaintiff presented a similar argument, i.e., that the malpractice act did not apply because the defendant hospital could be found liable under the strict liability articles of the Civil Code.

Our brothers of the First Circuit rejected the argument stating:

“.... We do not have to conclude in this case whether hospitals can be held liable without fault under those articles. Instead we hold, based upon our understanding of the legislative intent, that any conduct complained of should be handled under the procedure of the Act if it can be reasonably said that it comes within the definitions of the Act even though there may be alternative theories for liability.” 378 So.2d 185.

The same contention also was considered and rejected by the Third Circuit in Wyble v. St. Luke General Hospital, 415 So.2d 622, handed down May 26, 1982. We find the holdings in Cashio and Wyble applicable here.

Relative to appellant’s second contention, plaintiff claims the device which caused his injuries is not one of those included in R.S. 40:1299.41A(8), and it is therefore excluded under the malpractice act.

Revised Statute 40:1299.41A(8) defines malpractice as follows:

“(8) ‘Malpractice’ means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.” LSA-R.S. 40:1299.41A(8).

In our view, use of a life support system is a part of “professional services rendered” and thus falls within the above definition. This, of course, is in addition to, and conforms with, the definition of “health care provider” contained in LSA-R.S. 40:1299.-41A(1), which includes employees of the hospital and clinic in this case.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . He has filed separate proceedings with the medical review panel against the hospital/clinic and three doctors connected therewith in accordance with R.S. 40:1299.47.

      . “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.” LSA-C.C. Art. 2317.

      .A Sorenson Intra Flow device which monitors pressure in the heart chamber or ventricle, post operatively.


text:
    Lois W. HARRISON, et al. v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
    No. 5-159.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    John A. E. Davidson and Dennis K. Russell, Metairie, for plaintiffs-appellants.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Barkley, Jr. and Stephen R. Doody, New Orleans, for defendant-appellee.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

Plaintiff, individually and in her capacity as executrix of the Succession of Bruce Harrison, appeals from a judgment dismissing her suit against the defendant for the balance allegedly due under a disability insurance policy, and for penalties and attorney’s fees.

The policy in question is a group policy issued to the Airline Pilots Association which provides, among other coverages, loss of license disability benefits. These benefits are paid to an insured who has supplied proof of his disability and has been continuously disabled for 14 months. The benefits continue, as long as the insured is disabled, for a maximum of 46 months. The policy affords the insured the option of taking a lump sum in lieu of monthly payments if he is totally and permanently disabled. This option is available only if the insured has been receiving benefits for at least 10 months. If the insured exercises this option, the amount he receives is discounted, and is less than the total amount he would receive in monthly benefits.

The decedent, plaintiff’s husband, a pilot for Delta Air Lines, Inc., was disabled as a result of diabetes millitus. He had submitted a claim for loss of license disability income benefits and, after the 14 months qualifying period had elapsed, had received benefits of $1,000 per month for 27 months until he died on July 25, 1979. Mrs. Harrison then filed this suit claiming the defendant should have continued to pay disability benefits for an additional 19 months, up to the maximum 46 months provided by the policy.

In this court, appellant contends: (1) Decedent was wrongfully deprived of his right to a lump sum payment; (2) since there is no termination clause in the policy, payments should not have been terminated on death; and (3) plaintiff is entitled to penalties and attorney’s fees.

Relative to appellant’s first contention, she relies on that portion of the policy referrable to the lump sum payment which reads:

“Lump Sum Payment Option
You may elect a lump sum payment for each $500 for which you are insured in lieu of any monthly benefits. This election can be exercised at the expiration of 24 months of continued disability but only if the Equitable determines that you are permanently unable to perform every duty pertaining to your employment in the capacity for which you hold a Federal Aviation Flight Deck Certificate validated by a current Federal Aviation Agency Medical Certificate. If such election is made after 24 months of continuous disability each lump sum payment shall be reduced by the number of monthly benefit payments made after the expiration of such 24 month period.”

Basically, appellant contends defendant had sufficient medical information to determine decedant was totally and permanently disabled and that it was incumbent upon it to inform decedent so that he could have elected to take a lump sum in lieu of monthly payments.

This argument is without merit. If defendant had sufficient medical information to make such a determination, then it is equally clear that decedent had access to the same information. The election was his, not theirs. The trial court found as a fact that “. . . . Harrison, having elected monthly payments, having knowledge of the lump sum privilege did not elect in the almost one and one-half years of eligibility to change his election. He knowingly and intelligently opted for the monthly payments as opposed to the lump sum payment which his widow now seeks.”

This finding was based upon Mrs. Harrison’s own testimony that her husband knew of the benefits, did not want the lump sum and decided to take the monthly benefits.

Appellant’s second contention also is without merit. The portion of the policy on which she bases this claim reads:

“When Do Benefits Begin And End
Benefits will begin with the first day after the qualifying period of 14 consecutive months and beginning with the 15th month will be payable while you continue to be so disabled, if due proof is given to the Equitable, for 46 months with respect to any one period of disability. Benefits will not be payable beyond the date you attain age 60.” (Emphasis ours).

Plaintiff argues she is entitled to receive the benefits for the balance of the maximum 46 months because this provision does not specify death as a cause of termination of benefits.

This contention is not res nova in this state. The Third Circuit has considered the same contention in Lemaire v. Continental Casualty Company, 284 So.2d 102, writ denied, 287 So.2d 188, holding that death is not a form of disability and therefore disability benefits ceased at death. The Le-maire court further stated that its decision was consistent with cases from other jurisdictions, citing with approval American Home Assurance Company v. Hughes, 209 Va. 514, 165 S.E.2d 411, in which that court observed:

“. . .. Disability presupposes life. Death is the antethesis of life.”

There is another valid reason why an insurance company has a right to discontinue disability benefits upon the death of the insured: The insurer is entitled to periodic examinations of the insured to determine whether or not the disability still exists, and to be effective, such examination would have to be made while the insured was alive. We conclude the trial court correctly found the policy did not provide for disability payments following death.

Appellant’s third contention, that she is entitled to penalties and attorney’s fees under the provisions of R.S. 22:657 A for failure to continue benefits while the court was interpreting provisions of the policy contested by her, also is without merit. It is effectively answered by the fact that no benefits were payable after death.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See also Galvin v. Occidental Life Insurance Company of California, 206 Pa.Super. 61, 211 A.2d 120; Hinkley v. Penn. Mutual Life Insur-anee Company of Philadelphia, D.C. 37 F.Supp. 1018.


author: BOUTALL, Judge.

text:
    Sheila Trapp BOUDREAUX v. Donald R. TRAPP.
    No. 5-81.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Nathan Greenberg of Greenberg & Dal-lam, Gretna, for Sheila Trapp Boudreaux, plaintiff-appellee.
    Steward E. Niles, Jr. of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,

      New Orleans, for Donald R. Trapp, defendant-appellant.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   BOUTALL, Judge.

This is a suit to enforce a promissory note of Donald R. Trapp dated February 1, 1975, payable on demand to the order of plaintiff, Sheila Trapp, in the amount of $26,039.77. On the reverse side of the note appears the following endorsement:

June 28, 1979
The validity of this debt is hereby acknowledged and all rights of prescription waived.
/S/ _
DONALD R. TRAPP

Suit was filed on April 7, 1980, after the five-year prescription period had expired. Donald Trapp’s defense was based on the contention that the acknowledgment and waiver of June 28, 1979, were without effect and the note had prescribed.

From a judgment in favor of the plaintiff, the defendant took a suspensive appeal.

The issues on appeal are:

1. Whether the acknowledgment and waiver served to interrupt prescription.

2. If so, whether the plaintiff was entitled to attorney’s fees.

The appellant argues that the wording of defendant’s endorsement is an anticipatory renunciation of prescription, an act that is forbidden by Louisiana Civil Code, Article 3460, and should have been ignored by the court; further, that clear intent to interrupt prescription must be shown by the party who asserts interruption. In the instant case, the appellant introduced parol evidence in an attempt to prove that Mr. Trapp did not intend to extend the time in which he could be sued on the note.

The appellant argues that as a matter of public policy and under Articles 11 and 12 of the Civil Code, one cannot renounce prescription in advance. He cites as authorities Joseph Dainow, “The work of the Louisiana Appellate Courts for the 1971-72 term, Prescription,” 33 La.L.Rev. 235 (1973), and E.L. Burns Co., Inc. v. Cashio, 302 So.2d 297 (La.1974), which citations do support his argument. Article 11 provides that where “. . . it is not expressly or impliedly prohibited, [individuals] can renounce what the law has established in their favor. ..” Article 12 states that, “Whatever is done in contravention of a prohibitory law is void...” The court in Burns at page 301, held that, “... Article 3460 expresses a prohibitory rule of public order as contemplated by Articles 11 and 12” and that the law “. . . cannot be supplanted by private agreement...”

To this we answer that Article 3460 is not applicable to this case. Here the interruption of prescription is not based on Article 3460 but solely on Article 3520, which provides: “Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.” Article 3551 provides that this cause of interruption applies to the prescription releasing debts.

In support of this proposition, appellee refers us to Fountain v. Anacoco Sand & Gravel, Inc., 352 So.2d 410 (La.App. 3rd Cir.1977) at page 412, which states the requirements of a valid waiver of prescription: “.. . an acknowledgment of a disputed claim as well as a clear intent to interrupt the running of prescription...” Additionally, appellee cites First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La. App. 3rd Cir.1971), a case involving a promissory note that the maker endorsed, acknowledging the debt and specifically waiving prescription. The issue in First National was whether recordation was required to make a waiver of prescription effective; however, the court stated, at page 508, that, “... Prescription may be interrupted even by an oral acknowledgment of the debt or by a verbal promise to pay it ...” and held that the waiver “... had the effect of interrupting the running of prescription on the note...”

The trial judge gave detailed and cogent reasons for judgment with which we agree. We quote in part:

“It is true that recognition of the mere existence of a disputed claim is not such an acknowledgment as will interrupt prescription. Rather, to interrupt prescription, the acknowledgment must be accompanied by or coupled with a clear declaration of intent to interrupt the prescription then running. Wooden v. Hartford Insurance Company, 335 So.2d 742 (La.App.1976); Fountain v. Anacoco Sand & Gravel, Inc., 352 So.2d 410 (La.App.1977). However, the Court is convinced that all requirements for a valid acknowledgment of the debt sufficient to interrupt prescription are met in the instant case.
The defendant acknowledged the debt herein by the following language, written on the reverse side of the note:
‘The validity of this debt is hereby acknowledged and all rights of prescription waived.’
It is clear that defendant did much more than recognize the mere existence of a disputed claim. The defendant expressly acknowledged the ‘validity’ of the claim. This acknowledgment was coupled with a clear declaration of his intent to interrupt prescription, as evidenced by the words ‘and all rights of prescription waived.’ The Court can think of no clearer way to declare such intent.”

The findings of the trial judge come within the principles of sufficient acknowledgment to interrupt prescription as discussed and stated in Flowers v. V. S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1980) supporting the principles expressed in Lake Providence Equipment Co. v. Tallulah Prod. Cred. Assn., 257 La. 104, 241 So.2d 506 (La.1970). We quote at page 381:

“Louisiana Civil Code article 3520 does not require that an acknowledgment be in a particular form. It merely provides:
‘Prescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.’
Accordingly, this Court has stated that acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest or by pledge, or in other ways; and that it may be implicit or it may be inferred from the facts and circumstances. Lake Providence Equipment Co. v. Tallulah Prod. Cred. Assn., 257 La. 104, 241 So.2d 506 (1970). Upon reconsidering this interpretation of Article 3520, we find that it is solidly based upon doctrinal writings.”

Appellant relies on his testimony of lack of intent and lack of understanding of the law regarding prescription and acknowledgment. The trial court resolved this by holding that Donald Trapp “did, in fact, fully understand the effects of the acknowledgment and waiver of the rights of prescription which he signed” and explained the basis of this holding.

As to the issue of award of attorney’s fees, it is disposed of by referring to the face of the note. There is a standard agreement by the maker to pay attorney’s fees of 25% of the amount of the note, in the event the note is refered to an attorney for collection. The acknowledgment simply continued this in effect.

Considering the foregoing we conclude that Donald R. Trapp executed a valid written acknowledgment of the debt sufficient to interrupt prescription and affirm the judgment appealed at his costs.

AFFIRMED.

      . La. Civil Code Art. 3460 provides: “One can not renounce a prescription not yet acquired but it is lawful to renounce prescription once acquired.”


author: GRISBAUM, Judge.

text:
    Jamie Dugas DAKIN, Individually and on Behalf of the Minor Child, Melvin Dakin, Jr. v. CONVENIENCE CENTER, INC., d/b/a Convenience Food Mart Store, No. 3 and Security Insurance Company of Hartford.
    No. 5-136.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for plaintiff-appellee.
    Carville & Edrington, William P. Golden, Jr., LaPlace, for defendant-appellant.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a personal injury case. The defendant appeals the trial court’s judgment holding him liable for head injuries sustained by the minor Melvin Dakin, Jr. when he hit the cross-bar on defendant’s sign. We affirm.

On February 18, 1980, Melvin Dakin, Jr. was riding his bicycle through the parking lot of the Convenience Food Mart Store No. 3, 3507 Williams Boulevard, Kenner, Louisiana. He was preceded through the lot by two friends also on bicycles. The boys were about to ride in between two sign posts when the first boy suddenly veered to the side and the second boy ducked his head. Melvin also ducked but not enough to avoid hitting the steel cross-beam located a few feet from the ground. He sustained a severe laceration to his forehead.

On March 31, 1981, a trial on the merits was held solely on the issue of liability. This resulted from a joint motion by the parties for bifurcation of the trial due to the unavoidable absence of a witness crucial to a determination of damages. It is from the finding of liability that this appeal is taken.

Two issues are raised on appeal. First is whether the appellant breached a duty of care and had notice of the danger of the cross-beam. Second is whether the appellee was contributorily negligent due to prior knowledge of the presence of the crossbeam. On the first issue, the duty owed by a land owner is determined by Louisiana Civil Code articles 2315 and 2316. Article 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Article 2316 directs:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Under these articles, the elements of the cause of action are fault, causation and damages. Straley v. Galongne Drayage & Storage, Inc,, 346 So.2d 171 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976). Causation is not disputed in this case and damages were not an issue at the bifurcated trial on liability. Thus, the element for review is fault, which includes the concept of negligence. For analysis, negligence is divided into duty and breach of duty. The instant duty is the obligation to conform to the standard of conduct of a reasonable man in view of the probability of injury to others in the management of his property. Straley v. Calongne Drayage & Storage, Inc., supra; Pence v. Ketchum, supra.

The trial court found that the appellant breached their duty based on the testimony of two witnesses. A sign expert testified that the sign industry standard was to locate horizontal poles at least nine feet from the ground precisely for the purpose of preventing someone from hitting them. The cross-beam in this case was approximately three and one-half feet above the ground. The trial court found the appellant further remiss in their duty of care as they had notice of the potential danger. Testifying at the trial, appellee’s witness Steve Hughes related that two years prior to appellee’s accident, he struck the same cross-beam while riding his bicycle. His mother informed the store manager of the accident. Appellants introduced no evidence to rebut the testimony of either witness.

Addressing the second issue, the appellee testified that he did not know of the presence of the cross-beam. The trial judge was impressed with appellee’s testimony and the appellant offered no evidence to contradict him.

In his written reasons for judgment, the trial court found that the appellant failed to maintain standards of a reasonable, prudent individual. He found no negligence due to the appellee’s conduct. His holding is supported by the testimony adduced at trial and we are presented with no evidence to indicate to the contrary.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Kathleen Jaubert, wife of Gary CONFORTO v. Gary CONFORTO.
    No. 5-111.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Margaret (Peggy) LeBlanc, New Orleans, for plaintiff-appellant.
    Thomas J. Toranto, Jr., New Orleans, for defendant-appellee.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

This is a custody contest in which we are called upon to determine whether the welfare of three minor children would best be served by a change of custody from their father to their mother.

Initially plaintiff wife had filed suit for separation from her husband and requested custody of the couple’s three minor sons, aged two, three and five. The husband answered and reconvened and also requested custody. Following hearing on the rules, custody was granted to the father. Six months later the wife filed a rule for change of custody. Following hearing, judgment was again rendered in favor of the husband, and the wife has appealed.

In this court appellant contends the father has physically and psychologically abused the children, has failed to attend to their health needs and personal hygiene, and has kept them in a sloppy household environment.

It is alleged that the five year old was punched in the stomach by the father and that the three year old was severely beaten with a belt. The five year old told numerous people about the stomach punch, but no one saw any evidence of this. The child’s speech therapist raised the child’s shirt to examine his stomach but noted no redness or swelling. None of the other witnesses who testified, including the mother, had examined the child for evidence to support the allegation. The father denied punching the child and the speech therapist concluded the child may have been exaggerating or as children sometimes do, may have been making things up.

The father admitted hitting the child with a belt when he lost a set of keys, but there was evidence that the child was feisty and at times difficult to control, and the judge concluded some discipline was necessary. The pictures in evidence purporting to represent the belt incident reflected instead, according to testimony from the nursery school teacher, an accident at school where the child scraped his back against a plastic milk carton display. The pictures do not indicate a severe beating.

The health needs allegedly neglected by the father refer to a chipped tooth and a cavity. The trial judge pointed out that these are baby teeth. The psychological abuse complained of by the mother is that the father screams at the children and tells them they will never see their mother again.

The trial judge summarized the evidence of the two-day hearing and stated his reasons for continuing custody with the father. He was of the opinion that the court’s earlier decision had been reinforced by the testimony of the later hearing and was particularly impressed with the testimony of one of the children’s teachers and a next door neighbor, concluding the father had demonstrated that he was making the best of a very bad situation.

He was apparently impressed with arrangements the father had made for the care of the children. The two younger children enrolled in nursery school were taken to school each day by the father. They arrived promptly and were neatly and appropriately dressed when there was a change in the weather. They were progressing well and had excellent attendance records. The child with a speech problem had greatly improved with speech therapy, and when one child was sick the father took time off from work. He exhibited great interest in the children’s school work and frequently conferred with the teachers about their progress.

The older child walked to school a few blocks from his home with a neighbor’s two older children. The father engaged this lady, who lives across the street, to baby sit with this child after school until he returns from work, a couple of hours later.

It is also noted that upon receiving custody the father arranged with his employer to change his hours of work in keeping with his new responsibilities with the children.

There is no evidence that the mother is unfit or does not deeply care about the welfare of her children. She lives in a small apartment with her two teenage children of an earlier marriage and supports herself with alimony from appellee and baby sitting for two or three young children while their mothers work. She has visitation rights with her children one afternoon per week at the father’s home and overnight visitation at her home part of each weekend.

The judge found the children love both parents and the situation they are now in is because there was a prior controversy with one of the parents. The situation has steadily improved. Visitation with their mother is to continue on a regular basis as it is important for the mother to see the children. Nevertheless under all of the circumstances the court concluded custody should remain with the father.

The following legal principles are applicable: The paramount consideration in determining to whom custody should be awarded is always the welfare of the children. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); Falco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); DeCelle v. DeCelle, 313 So.2d 634 (La.App. 2d Cir.1975); LSA-C.C. art. 157.

Upon appellate review the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interest of the children from the total overview of the conduct and the character of the parties and the witnesses, and his discretion on the issue should not be disturbed on appeal in the absence of manifest error. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980).

When we apply these accepted legal principles which govern custody proceedings to the instant case we are unable to hold that the trial judge erred in continuing custody with the father.

For the reasons assigned the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Gerald MORTON v. WASHINGTON NATIONAL INSURANCE COMPANY.
    No. 5-168.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Harry R. Cabral, Jr., Metairie, for defendant-appellee.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

Plaintiff appeals from a judgment dismissing his suit on an exception of “no right or cause of action.” We reverse, for the reasons set forth below.

Gerald Morton filed suit against Washington National Insurance Company on an income protector policy. In his petition, as amended, Morton alleged he purchased the policy on or about November 8, 1974; that the policy provided for payments for loss of income caused by illness; that he became ill in December 1974 and was unable to work for four or five months; that he submitted proofs of loss to defendant but defendant refused to make any payments under the policy; and that the refusal was arbitrary and without probable cause.

Washington National answered with a general denial and the case was set for trial. Prior to trial, defendant filed an exception titled “no right or cause of action.” The basis for the exception was that under the terms and conditions of the policy, a claim may not lie against the company unless a valid proof of loss form has been executed and furnished to the company. Defendant alleged such proof of loss form was never returned to the company. After submission of documentary evidence and argument of counsel, the district court granted the exception.

There is no single exception of no right and/or no cause of action; they are separate and distinct, each serving a particular purpose and each following particular procedural rules. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir.1979).

The exception of no cause of action raises the question of whether the law affords any remedy to plaintiff under the allegations of the petition; such objection is triable on the face of the petition, and for purposes of its determination, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980). Every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Considering the allegations of Morton’s petition as amended, summarized above, we find them sufficient to state a cause of action against the insurance company.

In cases where the law grants a remedy to certain persons for the particular harm alleged by plaintiff, the exception of no right of action raises the issue of whether plaintiff belongs to that particular class to which the law grants the remedy. Gus-tin v. Shows, supra. The defendant may not use an exception of no right of action to urge that plaintiff has no right of action simply because there is a valid defense to the claim, as any such defense must go to the merits only. Gustin v. Shows, supra; Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3d Cir.1975). Evidence is admissible on trial of the exception of no right of action to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931.

It is clear from the allegations of plaintiff’s petition that he is a proper person to assert the claims made. The evidence produced by defendant to support its exception was directed toward the defendant’s claims that plaintiff had failed to file proper proofs of loss and that there was no liability because the policy was never issued to plaintiff. These are defenses to the merits of plaintiff’s claim but they have no bearing on his right to pursue the action. See Curry v. Iberville Parish Sheriff’s Office, 378 So.2d 159 (La.App. 1st Cir.1979). (We express no opinion on the validity of these defenses.)

Considering the foregoing, the judgment of the district court is reversed and the exceptions of no cause of action and of no right of action are denied. The case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: KLIEBERT, Judge.

text:
    PACIFIC LAND TITLE CORPORATION, et al. v. EXECUTIVE OFFICE CENTERS, INC.
    No. 5-144.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Steven K. Faulkner, Jr., Morphy, Faulkner, Simpson & Dimaria, Metairie, for plaintiffs-appellants.
    Donald A. Meyer and Mitchell W. Herzog, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for defendant-appel-lee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

The plaintiff, Pacific Land Title Corporation (Pacific) appealed from a judgment granted on a motion for a summary judgment dismissing plaintiffs’ suit at its cost. Pacific’s principal, Amie Ducros Galey, filed a petition against the defendants, Executive Office Centers, Inc. (Executive) to have herself declared as the owner of an undivided one-half (V2) interest in a tract of land located in Jefferson Parish. Executive answered asserting estoppel by deed and, alternatively, ten and thirty years acquisitive prescription.

The property in question was acquired in 1925 by Robert Ducros while he was married to Ruth Seawell. After the birth of Mrs. Galey, Robert and Ruth Seawell were divorced by judgment dated April 28, 1928. On October 21, 1955, by an authentic act, Robert Ducros conveyed the property to Louis Chetta, et al. The conveyance was with full warranty of title. Executive’s title emanates from this sale. Upon the death of her father and mother, Mrs. Galey was recognized as their sole heir and placed into possession of their estates. She claims ownership of a one-half interest by inheritance from her mother who by virtue of the divorce was an undivided one-half interest owner in the tract and who had not joined with her husband in the sale to Chetta. Her claim of ownership is met by a plea of estoppel by deed grounded in the contention her unconditional acceptance of her father’s succession made her step into the shoes of her father, therefore, she cannot make a claim against his warranty of title. Both parties agree the case turns on whether Mrs. Galey accepted the succession under the benefit of inventory or unconditionally.

Mrs. Galey’s father died on July 5, 1957 and within a few days she filed a petition to search for a will. The Notary’s return on the search showed no will was found. Mrs. Galey then filed a petition alleging “there are debts owing by this succession and petitioner desires to be appointed administra-trix of her late father’s estate” and “that it be necessary that an inventory be taken”. The court ordered the taking of an inventory which was subsequently-amended and, as amended, homologated and approved. The court also appointed Mrs. Galey administra-trix of the succession and upon her complying with the requisite of law was issued letters of administration. She undertook the administration of the estate and prayed for and received authority to sell real estate to pay debts of the succession. The record does not reflect whether or not the real estate was sold. She did file an account of her administration entitled “First Provisional Account” on which she showed that some $1,836.54 in debts had been paid and that the estate had remaining unpaid debts “which must be paid in due course ...”

With the succession record in the condition above stated, Mrs. Galey, individually and in her capacity as the administratrix of the succession, filed a petition alleging she was the only child of the decedent, that an inventory had been taken of the assets of the succession and praying for judgment setting the inheritance taxes and, once set and paid, recognizing her as owner and placing her into possession of the property shown in the inventory as belonging to the decedent. The petition did not allege whether the petitioner was accepting the succession under the benefit of inventory or purely, simply and unconditionally or whether it was the petitioner’s intent to terminate the administration of the succession, discharge the administratrix, and go into possession after a full administration.

The effects of the simple placing into possession is stated in La. C.C. Article 1013, which provides in part as follows:

“. .. it binds him [the heir who accepts unconditionally] to the payment of all debts of the succession, not only out of the effects which have fallen to him from the succession, but even personally, and out of his own property, as if he had himself contracted the debts or as if he was the deceased himself; unless, before acting as heir, he make a true and faithful inventory of the effects of the succession, as here above established, or has taken the benefit treated of hereafter. . .”

La. C.C. Article 1054 provides for the effects of the benefit of inventory as follows:

“The effect of the benefit of inventory is that it gives the heir the advantage:
1. Of being discharged from the debts of the succession by abandoning all the effects of the succession to the creditors and legatees;
2. Of not confounding his own effects with those of the succession, and of preserving against it the right of claiming the debts due him from it.”

While a succession is under administration, under our present statutory law, i.e., La. C.C.P. Articles 3361 and 3362, an heir of an intestate succession has the right to go into possession of all or a portion of the effects of the succession. Where the petition for possession is filed after the homologations of the tableau of distribution the heir may go into possession under the benefit of inventory. However, where the petition is filed by other than minor heirs, prior to homologation of the tableau of distribution, the petition must comply with the provisions of La. C.C.P. Articles 3001 through 3008. A prerequisite to being sent into possession under La. C.C.P. Article 3004 is the requirement that the heir accept the succession unconditionally. Thus, for other than minors, whether the heir may be placed into possession “unconditionally” or “under the benefit of inventory” depends on the status of the administration. Upon homologation of the tableau of distribution the administration of the succession is considered complete, hence, the heir is entitled to possession “under benefit of inventory”. Prior to the filing of the tableau of distribution, the administration of the succession is not complete, hence, the heir is entitled to possession only where he accepts the succession “unconditionally”.

Under the present statutory law, although Mrs. Galey did not allege she was accepting her father’s succession unconditionally, since no tableau of distribution was filed, we would have to conclude she accepted the succession unconditionally because when she went into possession of the property the succession was not fully administered. However, at the time she went into possession in 1958, our procedural statutory law was contained in the Code of Practice. Although there was no direct statutory counterpart to La. C.C.P. Articles 3361 and 3362, in the Code of Practice, the same results must prevail.

Louisiana Civil Code Article 1058 provides as follows:

“But if the heir declares that he is not willing to accept the succession, otherwise than under the benefit of an inventory, the person appointed administrator of the estate, whether it was the heir himself or any other individual, shall proceed to the sale of the property of the succession, and to the settlement of its affairs, as prescribed in the following articles. The beneficiary heir shall, at the time of such settlement, have a right to be paid, as any other creditor, all debts due him by the deceased, and shall moreover be entitled to the balance of the proceeds of the sale of the estate, if any such balance be left after payment of all the debts and charges of the succession.”

Additionally, almost one hundred years ago the Supreme Court held that after a succession had been fully administered, heirs have an absolute right to require it to be terminated and to be put into possession of the estate. Succession of Powell, 38 La. Ann. 181 (1886). Thereafter, in Kelly v. Kelly, 198 La. 338, 3 So.2d 641 (1941), at page 646, while quoting from prior cases the Supreme Court said:

‘ “The benefit of inventory, therefore, does not give an heir the right to take possession, unconditionally, or as owner, of any of the property of the succession, without making himself liable personally for the debts or obligations of the succession. When a succession is accepted under benefit of inventory, the estate must be administered and liquidated — even though the beneficiary heir himself should be the administrator for the benefit of the creditors primarily; the rights of the beneficiary heir being only residuary. Rev.Civ.Code, arts. 1039 to 1070.” ’

Thus, under the provisions of the Civil Code and the jurisprudence in effect at the time Mrs. Galey was sent into possession of her father’s estate, the determination of whether an heir was entitled to be sent into possession of succession property under administration “unconditionally” or “under benefit of inventory” depended, as it does today, on the status of the administration. If the succession was fully administered the heir was entitled to possession under benefit of inventory, otherwise, the heir was entitled to possession only on an “unconditional acceptance”. It is apparent from the record of the Succession of Robert Ducros, filed in the record here, the succession was not fully administered at the time the heir was placed into possession. Thus, under the substantive articles of the Louisiana Civil Code (Articles 976 et seq., Article 1032, et seq.) and the procedural articles of the old Code of Practice (Articles 976 et seq.) and the formulative jurisprudence of the State (i.e., Succession of Powell, supra; Kelly v. Kelly, supra; Succession of Stephen Duncan Linton, 27 La.Ann. 351, Orleans App. (1875) “under the benefit of inventory” means taking possession of the residual of the decedent’s property after the full administration of the succession, and “unconditionally” means taking all of the property of the succession along with all of its debts, without a full administration. Since Mrs. Galey took possession as owner of all of the property of the decedent before the succession was fully administered, she accepted the succession unconditionally.

Accordingly, the judgment of the lower court is affirmed. All costs of the appeal to be borne by the appellant.

AFFIRMED.

      . See Soule v. West, 185 La. 655, 170 So. 26 (1936) for doctrine.


author: BOWES, Judge.

text:
    Tina KING (Mrs. Thomas King) v. The NATIONAL BANK OF BOSSIER CITY, et al.
    No. 5-137.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Leroy A. Scott, Shreveport, Danny Bec-nel, Reserve, for plaintiff-appellant.
    Robert E. McDonald, Metairie, for defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

The sole issue in this case is whether the trial court properly maintained an Exception of Improper Venue by the defendant, National Bank of Bossier City. The plaintiff, Tina King, has appealed the trial court’s judgment.

In early 1979, Tina King was employed by the National Bank of Bossier City as a telephone switchboard operator. As part of her duties, Mrs. King would take messages and requests for the bank’s accounting department, which included transfers of funds from checking accounts to savings accounts, and vice versa, at the request of banking customers. When a particular customer claimed shortages of $25.00 and $250.00 in her account, Mrs. King was charged with theft of these amounts by defendant, Richard Hendrick, a security officer with the bank.

Subsequent to these charges, plaintiff’s husband had been discharged from the Air Force and the couple had returned to their home in Paradis, St. Charles Parish. A warrant was issued for the plaintiff’s arrest in St. Charles Parish pursuant to the theft charges filed in Bossier Parish. Mrs. King was arrested at her home in St. Charles Parish and taken to the St. Charles Parish Courthouse in Hahnville, where she was fingerprinted and photographed. At this time the plaintiff submitted to a polygraph test and hired attorneys in St. Charles and Bossier Parishes.

Mrs. King’s husband eventually re-enlisted in the Air Force and was again stationed in Shreveport where the couple returned to live. Upon returning to Shreveport, the plaintiff sought employment at a K-Mart store, where she had previously been employed, but was turned away because of the pending criminal charges. Mrs. King subsequently obtained employment at Gibson’s and while employed there the criminal charges were dismissed.

Plaintiff filed suit in the 29th Judicial District for the Parish of St. Charles alleging false arrest and invasion of privacy by the National Bank of Bossier, acting through it’s agents, officers or employees. In the petition, plaintiff alleges damages as a result of attorneys’ fees to defend her arrest charge, polygraph tests taken at her expense, wages lost from work, and embarrassment, false arrest and humiliation. Plaintiff additionally alleged in her petition that after charges were dropped against her, Rick Hendrick, security and/or personnel manager at the bank, made a telephone call to her employer at Gibson’s in Bossier Parish asking if plaintiff’s employer was aware that they had a criminal employed, thus constituting an actionable invasion of privacy. Defendant, National Bank of Bossier City, filed exceptions of improper venue alleging that no “damages or wrongdoing occurred in St. Charles Parish and that proper venue was Bossier Parish.” The exception was heard and maintained and the plaintiff now appeals that decision.

Article 74 of the Louisiana Code of Civil Procedure states in pertinent part:

“An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.”

There has been a judicial interpretation given to the second venue possibility “in the parish where the damages were sustained.” In the case of Town of Eunice v. M & L Construction Company, 123 So.2d 579 (La. App. 3rd Cir.1960), the court stated, “The parish where the ‘damage is done’ is, for the purpose of this codal article, ‘the parish in which the negligence, or the failure in performance of a duty, occurred.’ ”

Counsel for plaintiff-appellant in his brief states that both a false arrest and a wrongful repossession of Mrs. King’s automobile occurred in St. Charles Parish. However, there was no evidence of this automobile repossession in the record, nor was it alleged anywhere in the plaintiff’s petition. This court cannot review evidence that is not in the record, nor receive evidence so as to supplement the record properly before it. National American Bank of New Orleans v. Purvis, 407 So.2d 754 (1st Cir.1981). Therefore, we cannot take cognizance of any alleged wrongful repossession of the plaintiff’s automobile in St. Charles Parish.

The only activity that Mrs. King can be heard to complain about in St. Charles Parish would be her actual arrest. Under Article 74 of the Louisiana Code of Civil Procedure, the wrongful conduct must occur or the damages must be sustained in the parish where suit is filed. In this case, the conduct of the authorities in St. Charles Parish cannot be alleged wrongful. They were only acting on a warrant pursuant to theft charges filed in Bossier Parish. Any wrongful conduct would have been in the parish where charges were filed.

Likewise, under Town of Eunice vs. M & L Construction; supra, the parish where damages were sustained would be the parish where negligence, or the failure in performance of a duty occurred. Any negligence or failure to perform a duty in this case would have occurred in Bossier Parish, where charges were filed, and not in St. Charles Parish. For these reasons, it is clear to us that the court of proper venue would be the district court in Bossier Parish. La. C.C.P. art. 74.

Plaintiff-appellant also alleges in her brief that the trial judge signed two inconsistent judgments relative to the defendant’s Exception of Improper Venue, therefore rendering each a nullity. The record reflects that after the court dismissed plaintiff’s cause of action for want of proper venue, the defendant was asked to submit a judgment to the court for signature. The defendant drafted two judgments, one dismissing the demand of the plaintiff, Tina King, and another also dismissing the demand of Tina King with precisely the same wording but additionally ordering the transfer of the suit to the Twenty-Sixth Judicial District Court for the Parish of Bossier. The judge signed both judgments. We do not find that these judgments are in any way inconsistent.

Certain issues were introduced at oral argument which were not advanced as specifications of error and not briefed. In accordance with Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, this court considers those issues abandoned.

For the reasons assigned, the judgment of the District Court is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Joseph F. KUHN v. Patricia Dyer KUHN.
    Nos. 5-97, 5-98.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      James S. Weidner, Jr., Gretna, for plaintiff-appellant.
    Bruce G. Reed, Reed & Reed, New Orleans, for defendant-appellee.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   CURRAULT, Judge.

Plaintiff-appellee, Patricia Dyer Kuhn, and defendant-appellant, Joseph F. Kuhn, were married on May 28, 1963. Six children were born of the marriage. On May 30, 1980, a divorce was granted incorporating terms previously set forth in a consent judgment dated January 15, 1979. In accordance with the consent judgment, Mrs. Kuhn retained custody of the four minor children, subject to Mr. Kuhn’s visitation rights. Child support was fixed at the previously agreed upon figure of $400 per month.

In 1981 motions were filed by Mrs. Kuhn to increase child support payments and for extraordinary medical expenses. Mr. Kuhn countered with a motion to reduce. At the time the motions were filed, one of the minor children had attained the age of majority.

After a trial on the merits, judgment was rendered increasing child support to $550 per month. It is from this adjudication defendant now devolutively appeals.

Defendant-appellant argues the trial court erred in awarding an increase in child support, or alternatively that such award was excessive.

The law in Louisiana regulating parental obligations provides that both parents owe the obligation of supporting, maintaining and educating their children. LSA-C.C. art. 227. The degree of support is determined by the needs of the child, as well as the circumstances of those obligated to pay, and each case must be decided on its own facts. LSA-C.C. art. 231; Bertrand v. Bertrand, 401 So.2d 552 (La.App. 3d Cir. 1981); Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir.1981). Much discretion is vested in the trial court, particularly in evaluating the weight of evidence to be resolved primarily on the basis of credibility of witnesses; therefore, factual findings are accorded substantial weight on review. Graff v. Graff, 407 So.2d 70 (La.App. 4th Cir.1981). In determining awards, the court should consider the customary duties performed and services rendered by the mother on a daily basis. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3d Cir. 1980). It should also analyze the totality of the father’s circumstances and not restrict its review to only his free income. Mittelbronn v. Mittelbronn, 363 So.2d 1312 (La.App. 4th Cir.1978). However, when the parties seek to modify child support previously fixed in a consent judgment, the party seeking the modification must prove a change of circumstance of one of the spouses. Such change must occur between the date of the consent judgment and date of the rule for modification. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980). Furthermore, the modification may not depend entirely on cost of living increases since generally both parties are affected. Ducote v. Ducote, 339 So.2d 835 (La.1976).

In reviewing the record of the case herein, this court can find no error in the trial court’s determination that the circumstances of the parties had changed sufficiently to justify an increase. The trial court found that Mr. Kuhn’s revenue increased minimally, but his expenses decreased substantially. The court also found that while Mrs. Kuhn’s income increased, her expenses consumed and surpassed her-earnings.

The facts revealed that Mr. Kuhn is 57 years of age, unemployed, with little education and few job skills. He has been continually unemployed for eight or nine years; however, the record fails to disclose any compelling reason for his unemployment. At the time of trial, he was residing with his sister in New Sarpy, Louisiana, who provides him with the necessities of life, i.e., clothing, free rent, food and spending money from time to time. He testified that in return he assists her in the management of a farm. The trial judge placed a value of $700 to $800 per month on those items provided for Mr. Kuhn’s support following the witness’s inability to do so. In addition to those necessities of life provided by his sister, Mr. Kuhn owns and derives benefits from other assets which he inherited. As part-owner of a parcel of real estate located in a busy commercial area in Metairie, Louisiana, he receives a yearly rental of $6,933, an increase of $534.04 from 1978. He also owns a one-third interest in another commercial lot located in the same area. The present value of that interest was approximated at $200,000; however, no cash income is derived from the property. Mr. Kuhn denied receiving money from any other source except sales of poultry and stray animals.

Turning to a review of Mrs. Kuhn’s circumstances, the record reveals that, while her salary increased, she suffered greater increases in her expenses as well as the loss of income related to a small business operation. The evidence showed that appellee received a raise in salary totaling $1,664 in the interim between the consent judgment and time of trial. However, her expenditures, solely on behalf of the minor children, showed an increase of $2,052. She testified that during the interim she was forced to close a small leather business due to economic necessity. While she obtained some money from a sale of some of the business’s equipment, the proceeds of the sale were minimal. The evidence reflected that Mrs. Kuhn’s resources were further burdened by medical expenses totaling $776.05 for a football-related injury suffered by one of their sons. That injury prompted a purchase of medical insurance for all the minor children, which completely consumed the revenue attributable to her raise in salary.

After a review of the record and according substantial weight to the trial court’s factual findings, we cannot agree with appellant that the trial court abused its discretion in determining that an increase was sufficiently justified. Accordingly, we affirm the judgment granting appellee an increase in child support. In addition, we do not find merit in appellant’s allegation that the award is excessive. The trial court has great discretion in fixing alimony and child support, and such awards should not be disturbed absent a clear showing of abuse of discretion. Howell v. Howell, supra; Graff v. Graff, supra. A review of the record leads this court to conclude that the increase awarded is not excessive and is clearly within the trial court’s discretion. Since we find no abuse of discretion, the award will not be disturbed.

Accordingly, the trial court’s judgment increasing child support from $400 per month to $550 per month is hereby affirmed.

AFFIRMED.


text:
    Nathan L. CARMADELLE, et al. v. KOCH-ELLIS MARINE CONTRACTORS.
    No. 5-115.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.

      Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiffs-appellants.
    Dymond, Crull & Castaing, Edward J. Castaing, and Wright & Kerstein, David A. Kerstein, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   SAMUEL, Judge.

Plaintiffs, Nathan L. Carmadelle and River’s Edge Development Corporation, filed this suit against the defendant, Koch-Ellis Marine Contractors, Inc., seeking specific performance of a letter of intent dated April 10,1978 to lease certain batture property on the Mississippi River from January 1,1979 through June 80,1985 at a rental of $30 per front foot. Alternatively, plaintiffs sought a money judgment in the amount of $302,454. Defendant answered, denying liability for specific performance or for money damages, and asserting various defenses.

After a trial on the merits, judgment was rendered in favor of plaintiffs ordering defendant to “... specifically perform that certain contract entered into by and between parties in January of 1979, based on the terms and conditions of that certain letter of intent executed by and between the parties on April 11, 1978, except, that the rental consideration shall be the sum of $15.00 per front foot for the remaining principal term of the contract.” This judgment was rendered on October 17, 1980. Subsequently, plaintiffs filed a rule to show cause why defendant should not be ordered to pay it the sum of $44,612.50 representing 21 months of rent from February, 1979, at the rate of $15 per front foot. The rule was argued and the trial judge rendered judgment ordering defendant to pay rent commencing October 17, 1980 because “to require the defendants (sic) to pay rent for a term prior to this date would be inequitable.” Originally defendant filed an appeal, but later attempted to dismiss that appeal by motion filed in the district court. Plaintiffs also filed an appeal which was technically untimely, but the Fourth Circuit Court of Appeal refused to dismiss plaintiffs’ appeal and held it should be treated as an answer to defendant’s appeal.

Carmadelle leased the subject property from the owners on July 1, 1974 for a term of ten years, with options to renew. The lease provided that the rent for the first five years (to June 30, 1979) was $7.93 per front foot, and the rent for the second five years (to June 30, 1984) was $11.90 per front foot.

On April 11, 1978, defendant agreed to sublease the batture property from Carma-delle, and the parties executed a letter of intent which by its terms expired July 1, 1978 unless extended in writing for a period not to exceed sixty days. Attached to this letter was a proposed lease by which defendant was to sublease the premises for a period of six years at an annual rental of $15 per front foot from July 1, 1978 to December 31, 1978 and an annual rental of $30 per front foot from January 1, 1979 to June 30, 1984. This agreement called for defendant’s ability to use the property for barging and fleeting purposes. A permit for this purpose was attained and assigned to defendant.

The letter of intent was extended to July 15, 1978. No written lease was ever executed by the parties. After July 15, 1978, defendant continued to send payments to plaintiffs based on a rental of $15 per front foot, even though the letter of intent had expired.

Defendant made a similar payment in January, 1979 and that payment was accepted by plaintiffs. However, in February, 1979 plaintiffs objected to payment at the rate of $15 per front foot, returned the February payment and demanded defendant make payments based on $30 per front foot as stipulated in the lease agreed upon in the letter of intent.

When defendant sent its payment in January, 1979 based on $15 per front foot, the following letter accompanied the payment:

“Enclosed is the rent for the month of January. We will continue paying monthly until the lease agreement has been signed.
I will be meeting with David Kerstein on Thursday, and hopefully we can have things settled in a week or two.”

The evidence indicates that in October and November, 1978, even though the letter of intent had expired, Carmadelle and defendant entered into negotiations for a new agreement. These negotiations led to an agreement for a new sublease beginning January 1, 1979. Plaintiffs contend and Carmadelle testified the rent for the new sublease was to be $30 per front foot, and defendant’s testimony is that the rent was agreed upon at $15 per front foot.

In December, 1978, Carmadelle submitted a revised lease, with a $30 per front foot rental stated therein. Carmadelle insists this lease was correct, but defendant’s witnesses testified Carmadelle admitted the $30 figure was incorrect and had agreed to have his attorney prepare a final lease with rent at $15 per front foot.

Defendant’s witnesses testified that in contemplation of the new written agreement based on $15 per front foot it submitted its January 1, 1979 payment based on the $15 figure. As has been said, this $15 per front foot payment for January, 1979 was accepted by Carmadelle without objection or reservation, but he rejected the February payment based on $15 per front foot, and demanded a rental of $30 per front foot.

The trial judge thus was faced with a question of fact based on contradicting testimony. He found as a fact that defendant’s January, 1979 payment based on $15 per front foot was accepted by plaintiffs and that this acceptance, together with the testimony of the witnesses, established a meeting of the minds to lease the property in question on the basis of $15 per front foot.

The trial judge was in a better position to evaluate the evidence and credibility of the witnesses before him, and we see no error, manifest or otherwise, in his holding that $15 per front foot was the amount of the rent finally agreed upon between the parties.

The other issue presented for our consideration is whether the trial judge committed error by refusing to compel defendant to specifically perform from January 1, 1979, and only ordering specific performance from October 17, 1980, the date of judgment. As stated above, the trial judge reasoned it would be inequitable for specific performance to be granted retroactive to the original contract date. It should be noted that during all of this time defendant did not have possession of the property.

As justification for the trial judge’s decision, defendant points out that while plaintiffs were seeking equitable relief, they themselves acted inequitably by disavowing their own prior agreement and demanding more rent while at the same time failing to perform or to tender possession of the subleased batture property to defendant. We concur in this argument.

Specific performance is an equitable remedy to which plaintiffs are not entitled as a matter of right. Ordering specific performance is left to the sound discretion of the courts. A major requirement of one who seeks specific performance is proper performance of his part of the contract. In the absence of proper performance, plaintiff must prove he is and was ready to comply with whatever obligations devolved upon him to perform. These rules have been particularly applied to the lessor-lessee situation.

Because plaintiffs did not comply with their agreement in its entirety, and because there was no offer of possession of the leased premises to defendant, we conclude the trial judge did not abuse the discretion afforded him in granting equitable relief by only ordering specific performance from the date of the judgment.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See, e.g., Canter v. Koehring Company, La., 283 So.2d 716.

      . Hymel v. Old Homestead, Inc., La.App., 135 So.2d 685; see also, Lambert v. Succession of DeHass, La.App., 271 So.2d 910.

      . New Orleans Polo Club v. New Orleans Jockey Club, 128 La. 1044, 55 So. 668.

      . United States Leasing Corporation v. Keiler, La.App., 290 So.2d 427.


text:
    Dorothy TICKLES v. Walter E. DOTY, as Administrator of the Estate of his Minor Son, Brian C. Doty.
    No. 5-339.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Stephen V. Vallot, Kenner, for plaintiff-appellant.
    Victor E. Bradley, Jr., Norco, for defendant-appellee.
    Before SAMUEL, CURRAULT, and DU-FRESNE, JJ.
   CURRAULT, Judge.

This is an appeal by plaintiff from a judgment rendered by Honorable Thomas J. Malik, Judge, Twenty-Ninth Judicial District Court, Parish of St. John the Baptist, wherein plaintiff was awarded $369.71 for injuries she sustained.

Neither appellant nor appellee made an appearance for argument of this case nor have they filed briefs. This case was submitted solely on the strength of the record.

Since the appellant has not pointed out any error in the judgment of the trial court, that judgment may be affirmed under the presumption that it is correct. Alice v. Woods, 124 So.2d 770 (La.App. 4th Cir. 1950).

We have examined the record and find no error patent on the face thereof.

For the reasons assigned, the judgment appealed from is affirmed, with appellant to pay all costs.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    John and Sharon VANCE v. Floyd EMERSON, D/B/A Carpet Corner.
    No. 5-95.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Nelson J. Cantrelle, Jr., John J. McGuc-kin, Jr., Gretna, for plaintiff and appellee, John and Sharon Vance.
    Gilbert P. Cohen, Gretna, for defendant and appellee, Floyd Emerson d/b/a Carpet Corner.
    Robert H. Wood, Jr., Metairie, for defendant and appellant, West Point Peppe-rell.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

In April of 1978, the plaintiffs, John and Sharon Vance, purchased from the defendant, Floyd Emerson d/b/a Carpet Corner for the sum of $1,020.00, a carpet which was to be installed in the plaintiffs’ home in Marrero. The carpet was originally selected from a sample and ordered by Carpet Corner from the manufacturer, West Point Pepperell, Inc., the third party defendant. At the time that the carpet was installed, the plaintiffs noticed that there was a difference in coloration in the various sections of the carpet. They attempted to get the defendant to remove the carpet which they found to be defective because of the discoloration.

After refusal, the plaintiffs instituted suit. They prayed for a rescission of the sale plus damages and attorney’s fees for the redhibitory defects. The original defendant, Floyd Emerson, filed a third party demand against West Point Pepperell, Inc. seeking indemnity from the carpet manufacturer.

After trial on the merits, the trial court awarded the plaintiffs the sum of $1,020.00, together with legal interest plus attorney’s fees in the amount of 25% and for all costs.

From this judgment, the third party defendant (West Point Pepperell, Inc.) has appealed and has raised the following issues:

1. The trial court was manifestly erroneous in concluding that the carpet was defective or unfit as a result of any process or actions of the manufacturer.
2. The trial court erred in granting indemnity to Floyd Emerson, d/b/a Carpet Corner.
3. The trial codrt erred in awarding a money judgment without correspondingly rescinding the sale.
4. The trial court erred in awarding to the plaintiffs anything more than a nominal reduction in the purchase price.
5. The trial court erred in excluding the opinion testimony of appellant’s expert simply because he was an employee of a party to this suit.

As to the first issue raised on appeal, the Supreme Court in the case of Rey v. Cuccia, 298 So.2d 840, at 842 (La.1974) set forth the current state of our law in regard to actions in redhibition.

“A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it, had he known of the vice’. Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects.”

We conclude that the existence of a redhibitory defect is a question for the trial judge and should not be disturbed on appeal in the absence of manifest error. Clinkscales v. Superior Pontiac—GMC, Inc., et al., 365 So.2d 895 (La.App. 4th Cir.1978). Here, the trial judge clearly did not abuse his discretion and his decision was not manifestly erroneous under Canter v. Koehring Co., 283 So.2d 716 (La.1973) and its progeny.

The second issue on appeal is concomitant with the first. Once the trial court decided that the carpet sold had a redhibitory defect, it is well settled in our jurisprudence that the manufacturer is presumed to know of this defect in the thing made by him. Rey v. Cuccia, supra. Thus he is considered a bad faith seller and falls within the ambit .of the following civil code provision.

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.” La.C.C. Art. 2545.

Relative to this issue, the testimony presented at trial indicated that the plaintiff picked out the carpet he wanted by looking at samples of carpet in defendant’s store. After the plaintiff picked out what he wanted, the defendant (Emerson) ordered the carpet from West Point Peppe-rell, Inc. The carpet arrived in a roll from the factory and was then brought to the plaintiffs home where it was installed.

When the trial court made a finding that the carpet sold to the plaintiff had a redhi-bitory defect, there was no doubt that the carpet being referred to was the same one which was shipped from the West Point Pepperell Factory to the defendant and ultimately to the plaintiffs. With regard to the nature of the defect, the testimony given by the witnesses was to the effect that the plaintiffs complained that certain sections of carpet did not match the coloration of the main section of carpet. The record is void of evidence which would indicate that the carpet was improperly installed or that the pieces of the carpet were improperly sewn together. The trial court in its reasons for judgment stated that the carpet “* * * was not of the same quality as that of the carpet that had been selected by petitioners while in defendant’s store in that there existed a substantial difference in' the color and texture of the various pieces of carpet * * *” Furthermore, there was no evidence introduced to show that anyone else but the manufacturer could have caused this defect. Accordingly, as the manufacturer of the carpet, West Point Pepperell, Inc. is presumed to know of the defects which were present in the carpet, and as such is liable to the third-party plaintiffs.

The issues presented to this court in specifications of error three (3) and four (4), can be crystallized into one central argument on appeal:

What is the appropriate remedy, in a red-hibitory action in which the plaintiffs seek a rescission of the sale of a thing which has been customized to conform to specific dimensions and would be useless if returned to the seller (in this case, manufacturer)?

We agree with the trial court that the plaintiffs proved the essential elements of their ease. Therefore, our consideration will focus on the premise that the plaintiffs are entitled to a rescission of the sale and to all other consequences which flow from a successful redhibitory action.

Initially we must resolve the issue of whether the carpet should be returned to the manufacturer or should there be a reduction from the purchase price if the carpet remains in the possession of the plaintiffs.

Before a suit for redhibition may be filed by any purchaser, ’he must first tender the return of the property and offer to restore things to the pre-sale status quo. This tender is a prerequisite to the maintenance of any action in redhibition. Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir.1975). The evidence and testimony is clear that the above requirements have been satisfied. Moreover, in an action in redhibition, the purchaser is not entitled to rescission of the sale and recovery of the full purchase price unless he is in a position to return the purchased item. In such an instance, the purchaser is entitled only to a reduction in price and recovery of his expenses, if any. J.B. Bland C., Inc., v. Burris Bros. Limited, 216 La. 655, 44 So.2d 693 (1950).

Accordingly, we conclude that the return of the carpet by the plaintiffs is a necessary element to a sustainable redhibition action. Thus the trial court’s judgment will be amended to include the return of the carpet by the plaintiffs to the third party defendant, West Point Pepperell, Inc.

Furthermore, in a redhibitory action the buyer may recover from the seller, finance charges incidental to the purchase, as an expense of the sale. Smith v. Max Thieme Chevrolet Co., Inc., 315 So.2d 82 (La.App. 3rd Cir.1975).

The remaining issue is whether the trial court committed error in not allowing the third party defendant’s employee, Tony Giglio, to testify as an expert witness. Although the court did not recognize the witness as an expert, it. is obvious from the record that the court gave great weight to his testimony. In denying the motion for a new trial, the trial judge in his reasons for judgment indicated that he based his decision mainly on the testimony of Mr. Giglio. Accordingly, this issue is relatively moot and if error, was the most harmless error.

For the reasons assigned, the judgment appealed from is amended to order the return of the carpet by the plaintiffs to the third party defendant. As thus amended, and in all other respects, the judgment is affirmed.

All costs of this appeal are to be paid by the third party defendant, West Point Pepperell, Inc.

AMENDED AND AFFIRMED.


text:
    Mary Lou MASSEY et al v. Mr. & Mrs. Quincy E. CUNNINGHAM. Mary Lou MASSEY et al v. Mr. & Mrs. Quincy E. CUNNINGHAM.
    Nos. 5-106, 5-107.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Leon C. Vial, III, Hahnville, and Abbott Reeves, Gretna, for plaintiffs and appellees, Mary Lou Massey et al.
    Luz Molina-Murov, Marrero, for defendant and appellant, Mr. and Mrs. Quincy E. Cunningham.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This appeal comes to us from separate lawsuits which were consolidated in the trial court. The cases have remained consolidated on appeal, and, as the law and relevant facts are common to both, our opinion herein is equally applicable to each.

On September 11,1980, Mary Lou Massey (plaintiff) filed a petition for eviction alleging Mr. and Mrs. Quincy E. Cunningham (defendants) failed to pay rent for the months of July, August and September, 1980. Defendants answered denying the allegations and reconvening for specific performance of an “Agreement to Sell” the subject rental property executed on April 18, 1980.

Subsequent to the petition for eviction, the plaintiff filed a second suit on October 14, 1980 requesting a Writ of Sequestration. By judgment, the said writ was dissolved; an appeal was taken but later abandoned.

All issues relating to the eviction were decided at the trial on the merits. Judgment was rendered by the trial court ordering the defendants’ eviction and decreeing a judgment against them in the amount of $1,175.00 for rental payments due from August through December 1980. The defendants reconventional demand for specific performance was dismissed. This appeal followed.

The defendants entered into a written lease on October 28,1978 which lease was to run until November 30, 1980 for rental of property located at 108 Carita Drive, Avon-dale, Louisiana. The monthly rental was $235.00. The lessors were Mr. and Mrs. Edward Massey. During the course of this lease, rental payments were made by the defendants to Mr. Massey, until his death on August 1, 1980. Throughout this lease agreement, Mr. Massey was responsible for making the mortgage payments due on the property even though he and Mrs. Massey were divorced subsequent to executing the lease.

On April 18, 1980, appellees and her husband entered into an agreement to sell the Carita Drive property to appellants. This agreement basically stated that on or before June 15,1980, an act of sale would pass between the parties wherein appellants would assume the mortgages that were encumbering the property and title would be transferred. This agreement to sell was passed before Robert N. Clarke, Attorney at Law and Notary Public, whom at that time represented appellants and Mr. Edward E. Massey regarding the intended sale.

On June 15, 1980, the appellants went to the office of Robert N. Clarke, but Mr. and Mrs. Massey never arrived — no notice had been sent to them from the appellants indicating they desired to execute the Act of Sale. A notice was mailed on July 17, 1980 to Mr. Massey requesting that a date be set for passing the act of sale.

Upon Mr. Massey’s death on August 1, 1980, plaintiff, Mrs. Mary Lou Massey retained counsel and wrote a letter on August 6, 1980 to defendants, advising them that they were in arrears in the amount of $1,600.00 and if not paid, that they were to vacate the house within five (5) days of receipt of the letter. Defendants failed to pay the delinquent rent and remained on the premises. Suit was filed by the plaintiff and defendants reconvened for specific performance of the agreement to sell.

The main issue in this matter revolves around whether or not the defendants’ attorney, Robert N. Clarke was acting as agent of the owners, Mr. and Mrs. Massey.

The defendants have contended that Robert N. Clarke became the agent representing the interest of the plaintiff after the death of her husband, Mr. Massey. They looked toward Clarke for clarification of the situation and entrusted to him the rental payments. From the record we are convinced as was the trial judge that there is a lack of evidence establishing any on-going legal relationship between Mr. Massey and Robert Clarke. He was the attorney representing all parties concerned in his professional status and was to fulfill certain functions in transferring title pursuant to the agreement to sell.

It is settled law that the attorney-client relationship is contractual in nature and based on the express agreement of the parties as to the nature of the work undertaken by the attorney. Agreement of an attorney to represent a client as to a particular matter does not create an agency relationship as regards other business affairs of the client. Tullier v. Tanson Enterprises, Inc., 359 So.2d 654 (La.App. 1st Cir.1978).

The defendants did not prove that the plaintiffs even benefited or received any rent payments from Robert Clarke. Clarke was not made a party to the suit nor even called as a witness by the defendants. Robert Clarke was allowed to withdraw as attorney for the defendants approximately one month before trial, but did. not testify, which would seem to be essential to say the '.least.

The trial court’s finding is based on reasonable evaluation of credibility and will not be disturbéd in the absence of manifest error. Canter v. Koehring, 283 So.2d 716 (1973).

As to the second issue raised, that the defendants were entitled to specific performance of the agreement to sell, we agree with the trial court that the agreement had expired by its own terms and was no longer enforceable. The defendants have argued that they were prepared to sign the agreement on June 15, 1980 but the Masseys did not appear at the attorney’s office. However, the record indicates no notice was given for them to appear and not until July 17,1980, over 32 days later, were they notified of the intentions of the defendants.

Again we believe that Robert Clarke should have testified in this matter and brought to light the reasons for the excessive delays in contacting the plaintiffs, that the defendants were prepared to purchase the property. By its own terms, the “Agreement to Sell” (Appendix No. 1) expired on June 15, 1980 and was no longer enforceable. Although argument has been presented that the plaintiffs breached the contract, we feel otherwise. The defendants under the agreement had to take some positive action to notify the plaintiffs that they were ready to take title to the property-

Reviewing the “Agreement to Sell” we must conclude that there was to be some type of decision made by the defendants whether to consummate the sale on or before June 15, 1980. This is not a standard real estate agreement, but a simple agreement prepared by the attorney, Robert N. Clarke. It is quite obvious that some communication was necessary prior to June 15, 1980 to complete this transaction.' Since there was no evidence of any in the record, the agreement expired and was no longer enforceable.

Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendants, Mr. and Mrs. Quincy E. Cunningham.

AFFIRMED.

APPENDIX I

AGREEMENT TO SELL

We, Mary Dunn wife of/and Edward Massey, for and in consideration of the assumption of that certain mortgage existing upon 108 Carita Drive, in Avondale, La., in favor of Lomas and Nettleton Company loan # 07-25-26260 with a principal balance of $26,000.00 as well as the assumption of the second mortgage existing against aforedescribed property in favor of American Thrift and Finance Plan Inc., with a principal balance of $4,000.00, loan # 4124, by Dorothy Pauline Sisk wife of/and Quincy Eugene Cunningham, do hereby these presents agree to sell, transfer and convey the property aforedescribed on or before June 15, 1980 unto, Dorothy Pauline Sisk wife of/and Quincy Eugene Cunningham.

/s/ Mary Dunn
Mary Dunn
/s/ Edward Massey
Edward Massey
/s/ Patricia Hammel
Witness
/s/ James Childs
Witness
/s/ Dorothy Pauline Sisk
Dorothy Pauline Sisk
/s/ Quincy Eugene Cunningham
Quincy Eugene Cunningham
SWORN to and subscribed before me, Notary Public, on this 18th_day of April 1980.
/s/ Robert N. Clarke.
Robert N. Clarke,
Notary Public

      . Suit No. 243-977 24th Judicial District Court; No. 5-107 Fifth Circuit Court of Appeal.

      . Suit No. 245-224 24th Judicial District Court; No. 5-106 Fifth Circuit Court of Appeal.