author: STOKER, Judge.

text:
    Ashton P. GIRON, Plaintiff-Appellee, v. The HOUSING AUTHORITY OF the CITY OF OPELOUSAS, Defendant-Appellant.
    No. 7592.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Felix A. DeJean, III, Opelousas, for defendant-appellant.
    Sandoz, Sandoz & Schiff, Gerald H. Schiff, Opelousas, for plaintiff-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   STOKER, Judge.

This suit was originally brought as an injunction suit by an employee to prevent his employer from removing him from office as Executive Director of the Housing Authority of Opelousas, Louisiana. A temporary restraining order was issued followed by a hearing on a preliminary injunction which restrained the Authority from removing the plaintiff from his office. Thereafter, the plaintiff, Ashton Giron, decided to acquiesce and to give up his position as Executive Director for the Authority and to seek damages for breach of contract instead. As it stands this suit is for breach of contract of employment.

The principal issue in this appeal is whether plaintiff may elect to change the remedy sought from injunction to damages.

Ashton Giron, the plaintiff, was a maintenance employee of the defendant, The Housing Authority of Opelousas, Louisiana, on May 10,1976. On that day the Board of Commissioners of the Authority, by a three to one vote, resolved to engage plaintiff as Executive Director of the Authority effective July 1, 1976, for a period of five years. At a meeting held on March 21, 1977, the Board relieved Giron of his position and duties as Executive Director. At that time, the Board returned Giron to his former job as Maintenance Superintendent I for the Authority.

Giron filed suit against the Authority on March 23, 1977, seeking injunctive relief. On that day a temporary restraining order was signed restraining the Authority from relieving Giron of his post. A preliminary injunction hearing was held on April 7, 1977. The trial court granted the preliminary injunction on April 14, 1977, restraining, enjoining and prohibiting the Authority, the Board or its agents from relieving Giron of his post as Executive Director for the Authority. (Tr. 25) No appeal was taken from the granting of the preliminary injunction.

After obtaining the preliminary injunction, plaintiff decided to acquiesce in the Board of Commissioner’s action relieving him of his office as Executive Director. On June 30, 1977, Giron wrote to the Chairman of the Authority to this effect. In the letter Giron informed the Authority that he was returning to his maintenance job, which he did on July 1, 1977. He also informed the Authority that his attorneys had been instructed to amend his suit to seek damages, that is, to change the action from one for injunctive relief to one for damages for breach of contract. Giron noted among his reasons for taking this course the fact that the trial of the permanent injunction might not occur until several months in the future. On June 30, 1977, plaintiff did amend and supplement his petition to seek damages, and he eliminated his demand for injunctive relief. (Tr. 27)

Subsequent to the amendment of plaintiff’s petition to change the relief sought from injunction to damages, the defendant filed several defensive pleadings. On December 19, 1977, the Authority filed a peremptory exception, a motion to dismiss, and a dilatory exception of vagueness. The peremptory exception stated plaintiff had no right of action because he had resigned his position as Executive Director, and the amended and supplemental petition failed to state a cause of action against the defendant. (Tr. 42) The motion to dismiss plaintiff’s petition was grounded on the allegation that plaintiff voluntarily resigned his position and advised the defendant’s Board that he was returning to his maintenance job under Civil Service. (Tr. 43) On December 29, 1977, defendant filed a motion for summary judgment pitched on the same general grounds as those stated in the peremptory exceptions and the motion to dismiss. (Tr. 48) The trial court heard the motions and exceptions on January 20,1978, and denied them all, although the minute entry indicates the petition would be amended within ten days. A second amendment was filed on January 26, 1978. Defendant filed an answer on February 2, 1978.

Trial on the merits of this case took place on October 19 and 20, 1978, and reasons for judgment were assigned by the trial court on January 29, 1979. After a recitation of the facts, about which there seems to be no dispute, the trial court’s reasons for judgment reflect a decision in favor of plaintiff Giron. The trial court awarded plaintiff the difference between his salary as Executive Director of the Authority and his present salary as Maintenance Superintendent I. His salary as Executive Director was $18,000 with a car allowance of $80 per month. Giron returned to his maintenance job at $985 gross per month. (Tr. 629 and 631)

Pertinent portions of the trial court’s reasons for judgment rendered January 29, 1979, read as follows:

I have considered these facts as well as the evidence, the briefs, and the arguments of counsel, and I am of the opinion that Ashton Giron was hired by the Opel-ousas Housing Authority by virtue of an official act of authorization of that Authority, and that under Article 167 of the Louisiana Civil Code, his employment for a term of five years was proper.
Mr. Giron was not dismissed for unsatisfactory service nor for violation of any of the regulations of the Authority as provided for by Section 9-B of the personnel policy of the Housing Authority of the City of Opelousas; furthermore it does not appear that he was offered a hearing prior to his dismissal as executive director. Thus his dismissal constituted an active breach of contract by the Authority, entitling him to seek damages under Article 2749 of the Louisiana Civil Code or to seek injunctive relief.
The plaintiff’s choice to amend his original petition and to seek damages rather than continue the pursuit of injunctive relief did not constitute a resignation depriving him of the right to recover damages, since the judgment granting a preliminary injunction is an interlocutory judgment and cannot be said to have acquired the authority of a thing adjudged. See, Whalen v. Brinkmann [La. App.], 258 So.2d 145, at Page 146-147.
Mr. Giron is therefore entitled to damages which are fixed as the difference between his present salary as Maintenance Superintendent I and his former salary of $18,000 per year as executive director. Although the plaintiff has also asked for damages for mental pain, anguish, and suffering resulting from the wrongful actions of the defendant, no allowance can be made therefor, since an award for such damages can be granted only if the contract breach had for its object the gratification of some intellectual enjoyment, convenience, or other legal gratification as described in 1934(3) of the Louisiana Civil Code. (In this connection, see also, Uhlich v. Medallion Realty, Inc. [La.App.], 334 So.2d 788; Greenburg v. Fourroux [La.App.], 300 So.2d 641, writ denied [La.], 303 So.2d 181).

A judgment purporting to be in conformity with the reasons for judgment of January 29, 1979, was signed on May 9, 1979. The judgment grants plaintiff a monetary judgment for $18,720 together with interest at the rate of seven per cent per annum from date of judicial demand until paid and for costs. On February 2, 1979, (prior to the signing of the judgment) the defendant Authority filed one single pleading setting forth the peremptory exceptions of res judi-cata and “no right and no cause of action”. (Tr. 572) The two paragraphs of the exceptions read as follows:

1.
On the 14th day of April, 1977 in the above numbered cause, a preliminary injunction was granted on plaintiff’s behalf in conformity with his “Petition for Writ of Injunction”. The aforesaid action was between the same parties, in the same capacity, on the same cause of action, and had the same object as this action. Moreover, it constituted an election of remedies. Exceptor specially pleads the judgment rendered therein, from which no appeal was taken, as res judicata of this action.
2.
The plaintiff has no right and no cause of action for the reason that the cause of action which the plaintiff may have had for damages was merged in this Honorable Court’s Order or Judgment of April 14, 1977, and as such, the aforesaid Order of Judgment constitutes a bar to a cause of action for damages based upon the same cause, object, and parties and also thereby acts as a bar to any right of action which the plaintiff may have had.

The peremptory exceptions were overruled by the trial court on May 9, 1979, the same date on which the judgment on the merits was signed. Defendant then appealed suspensively to this court.

Insofar as this appeal is concerned no issue is made as to justification or lack of justification for relief of plaintiff from his office as Executive Director of the Authority-

The specifications of error and issues set forth in defendant-appellant’s brief are set forth in a footnote.

I.

In its specification of error number one, the defendant challenges the authority of the chairman of the Board of Commissioners to enter into the five-year contract. The attack is centered on the correctness and validity of the minutes. At the Authority meeting of May 10, 1976, at which the hiring of plaintiff Giron was taken up, the commissioners present were Commissioners Lemon (chairman), Zerangue, Emon, Richards and Prados. Three votes were taken. The commissioners first voted by a three to two vote to appoint Ashton Giron Executive Director of the Authority effective July 1, 1976. Richards and Prados voted against the motion. The second development was a motion by Richards, seconded by Prados that Giron be given a one-year contract. The motion failed with Zerangue, Emon, and Lemon voting against the motion. By a third action, a three to one vote authorized a five-year contract at an annual salary of $18,000. The minutes show commissioner Richards voted in favor of this action. (Tr. 384)

At the trial on the merits, Mr. Richards’ was produced as a witness by the Authority. Through Richards’ testimony the Authority attempted to attack the authenticity of its own minutes. The court sustained plaintiff’s objection to this testimony. In an offer of proof, Richards testified he did not vote for the motion to hire plaintiff for five years. (Tr. Vol. 5, Reporter’s page 45)

A second attack made by the Authority on the third motion is that the minutes omit the words “on motion” and read:

After discussion by Commissioner Ze-rangue and seconded by Commissioner Emon that a five (5) year contract be given to Mr. Ashton Giron, effective July 1, 1976, with an annual salary of $18,-000.00. Subject to the personnel policy adopted by the Board, that the Chairman is authorized to execute this resolution. Said contract attached.
Yeas: Commissioner Zerangue, Commissioner Emon, Commissioner Richards.
Nays: Commissioner Prados.

A final challenge to the validity of the motion in question is the assertion that the minutes of May 10,1976, were not approved at the next regular meeting of the Board of Commissioners. If this alleged failure has any significance, it should be noted that the only proof of this fact lies in the testimony of Richards but that he also testified he was absent from that meeting. (Tr. Vol. 5, Reporter’s pages 48-50) The minutes in question were not produced.

We are of the opinion that specification of error number one is laid on grounds too tenuous and technical to have merit. The May 10, 1976, minutes were signed by the chairman and secretary. (P-3, Tr. 384) Mr. Richards, on cross examination in response to the testimony given under the offer of proof, admitted he never protested the fact that the minutes showed he voted for the five-year contract or asked for correction. (Tr. Vol. 5, Reporter’s page 48) The failure of the minutes to show that the Commissioner made a motion relative to the five-year contract is obviously a typographical omission. All other portions of the minutes follow a similar form but read “after discussion and on motion of_” As to the proposition in question, the minutes show it was seconded by Commissioner Emon and was voted on. Obviously, it was a motion. Moreover, on May 12, 1976, a written employment contract was signed with Giron by Earl Lemon as chairman of the Authority and on behalf of the Authority. (Tr. Vol. 2, pages 296-297) Mr. Lemon voted at the May 10, 1976, meeting only to break ties. Had Richards not voted in favor of the five-year contract, a two to two vote would have resulted. Lemon would have had to vote to break the tie. We are inclined to believe the minutes are correct, and if not, Lemon’s vote would have been in favor of the contract, inasmuch as he signed the actual employment contract two days later.

Plaintiff began his duties July 1, 1976, and apparently functioned under color of authority until March 21, 1977, when the Board action dismissed him. The fact that plaintiff served this long — nearly nine months — and the Board thought it necessary to take official action to relieve plaintiff of his office — lends support to the inference that the Board considered the hiring valid.

For the foregoing reasons we find no merit in appellant’s assignment of error number one.

II.

Appellant puts forward an “election of remedies” theory as its second assignment of error. It asserts that, because plaintiff initially sued for specific performance in the form of injunctive relief, he cannot later switch to a demand for damages in lieu of the first form of relief sought. This position appears to be well supported in law. It was held in Borie v. Smither, 8 So.2d 148, 154 (La.App.Orl.1942) writ denied July 20, 1942, that:

It is well recognized in our law that, once a party to a contract has elected a remedy, or right, or option, on which he will rely under his contract, he cannot thereafter shift to another remedy, right, or option which subsequent circumstances or events might make it more advantageous for him to adopt.
* # # * * *
Des Allemands Lumber Company v. Morgan City Timber Company, 117 La. 1, 41 So. 332; Bierce v. Hutchins, 205 U.S. 340, 27 S.Ct. 524, 51 L.Ed. 828; Sanitary Plumbing Company v. Carnahan, 6 La. App. 547; Columbia Weighing Machine Company v. Balter, 9 La.App. 326, 120 So. 397; Tremont Lumber Company v. Robinson Lumber Company, 160 La. 254, 107 So. 101.

The same rule has been followed in Garrett v. Girardian Insurance Co., 155 So.2d 284 (La.App. 2nd Cir. 1963) and Radiophone Service, Inc. v. Crowson Well Service, Inc., 309 So.2d 393 (La.App. 2nd Cir. 1975).

We believe the seeking and obtaining of injunctive relief had the effect of destroying any cause of action plaintiff may have had for damages for breach of his contract of employment. For this reason the judgment of the trial court must be reversed. While we are not certain that plaintiff’s letter of June 30, 1977, constituted a resignation of the executive directorship of the Authority, it specifically notified the Board that he no longer intended to function in that post, and that he was returning to his former position of Maintenance Superintendent. The first paragraph of the letter reads as follows:

The Housing Authority is now free to employ Bill Soileau as Executive Director. On June 30,1977,1 instructed my attorneys to amend the law suit which I filed against the Authority, changing the nature of the suit from one seeking an injunction to one seeking damages. Since the last official action of the Board is the Resolution relieving me of my duties as Executive Director, returning me to my former position of Maintenance Superintendent, and hiring Bill Soiliau as Executive Director, I have now resumed my duties in the Maintenance Department.

We gather that during the period of time plaintiff functioned as Executive Director of the Authority, he was on a leave of absence from his position as Maintenance Superintendent, a civil service position, and that by his return he remained clothed with the rights and protection of a civil service employee. The effect of his notification to the Board and the relinquishment of the Executive Director’s post was to render moot all issues in the case.

In view of our decision, we do not find it necessary to consider defendant-appellant’s other specifications of error.

For the reasons assigned, the judgment of the trial court is reversed and the action of plaintiff-appellee, Ashton Giron is dismissed. Defendant-appellant is cast for all costs accrued prior to the filing of plaintiff’s first supplemental petition, and plaintiff-appellee is cast with all costs which accrued thereafter including the costs of this appeal.

REVERSED.

      . As listed in defendant-appellant’s brief, its Specification of Errors and Issues are as follows:

        SPECIFICATION OF ERRORS

        ERROR NO. I

      The trial court was manifestly erroneous in finding that the chairman of the Housing Authority had actual authority to enter into a five (5) year contract with plaintiff as the minutes of the Housing Authority do not reflect that authority was given.

        ERROR NO. II

      The trial court was in error in failing to hold that plaintiff’s election of remedies by praying for and being granted a “final” preliminary injunction precluded plaintiff’s subsequent amendment requesting damages for breach of contract.

        ERROR NO. Ill

      The trial court was manifestly erroneous in its factual findings and in error as a matter of law in failing to find that the preliminary injunction “cured” or “purged” the Housing Authority’s default and that plaintiff defaulted or, alternatively, refused to perform his contractual obligation when he tendered his June 30, 1977, “Letter of Resignation”.

        ERROR NO. IV

      The trial court was in error in holding that the preliminary injunction granted herein was not res judicata to a subsequent amendment seeking damages; the trial court denying the Housing Authorities peremptory exception.

        ISSUES ON APPEAL

      I.
      Did the chairman of the Housing Authority have actual authority to enter into a five (5) year contract with plaintiff?
      II.
      Does a prayer for and the granting of a preliminary injunction preclude a subsequent amendment requesting damages for breach of contract?
      III.
      Did the preliminary injunction granted herein “cure” or “purge” the Housing Authority’s default and was plaintiff in default or did he refuse to perform his contractual obligations when he tendered his June 30, 1977, “Letter of Resignation”?
      IV.
      Was the preliminary injunction granted herein res judicata to a subsequent amendment of the same suit seeking damages?


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Kenneth SOLIS v. CIVIC CENTER SITE DEVELOPMENT COMPANY, INC., d/b/a Downtown Howard Johnson’s, et al. Emanuel PALMISANO v. CIVIC CENTER SITE DEVELOPMENT COMPANY, INC., doing business as Downtown Howard Johnson’s, et al. Charles A. ARNOLD v. CIVIC CENTER SITE DEVELOPMENT COMPANY, INC., d/b/a the Howard Johnson’s Downtown Motor Lodge, et al.
    Nos. 10795-10797.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Aug. 5, 1980.

      Jackson & Stovall, James E. Stovall, New Orleans, for Charles S. Arnold, plaintiff-appellant.
    Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for Kenneth Solis and Emanuel Palmisano, plaintiffs-appellants.
    McGlinchey, Stafford & Mintz, Dermot S. McGlinchey and Suzanne P. Keevers, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and HOOD, JJ.

       Due to the death of Judge Hood prior to rendition. but after his concurrence therein, this opinion is rendered unanimously by Samuel and Redmann, JJ.

   SAMUEL, Judge.

Plaintiffs, Kenneth Solis, Emanuel Pal-misano and Charles A. Arnold, filed these later consolidated suits against the following defendants, among others: Civic Center Site Development Co., Inc., d/b/a The Howard Johnson’s Downtown Motor Lodge, and its alleged insurers, Insurance Company of North America, Pacific Employers Insurance Company and American Home Assurance Company. Plaintiffs seek damages for personal injuries sustained by them in the Howard Johnson’s sniper episode which occurred on January 7, 1973. The three plaintiffs, New Orleans policemen, were injured (by gunshot) when they responded to a call for help in quelling the sniper’s activities. The basis for plaintiffs’ claim against Howard Johnson’s is that the owner and operator of the premises was negligent in failing to prevent the sniper’s actions, and that by virtue of such negligence defendants are liable in damages.

The above named defendants filed a motion for summary judgment on the theory that, as a matter of law, a proprietor is not liable for injuries to policemen summoned in an emergency even though the emergency itself was caused by some negligence on the part of the proprietor. Plaintiffs did not file countervailing affidavits. At a hearing on the motion, the trial court observed the motion might also be styled an exception of no cause of action. Consequently, defendants amended their motion and pled such an exception in the alternative. The trial court permitted plaintiffs to amend their petitions to state more fully all allegations of fault on the part of Howard Johnson’s.

At a second hearing, on March 16, 1979, the trial court entertained oral argument and subsequently maintained the exception of no cause of action and dismissed plaintiffs’ suits as to the exceptors. The three plaintiffs have appealed from that judgment.

The sniper incident took place when an individual named Mark Essex seized control of the Downtown Howard Johnson’s Motor Inn and paralyzed the New Orleans business district with gun shots from one or more high powered rifles. He also set fires in the building in order to attract firemen to the scene. The New Orleans Police Department was called. The three plaintiffs were New Orleans police officers on that date, and they responded to the call for help. In the process of attempting to help the guests and eliminate the sniper, they were shot. More than 600 policemen from various jurisdictions in and around New Orleans responded to the emergency, and they were held at bay by the sniper for more than 24 hours. The crisis finally ended when the sniper was shot from a Marine Corps helicopter.

The issue for this court’s decision is whether Howard Johnson’s, a motel proprietor and operator, which summoned police in the emergency is liable for injuries inflicted on responding police officers by a third party.

Plaintiffs’ petitions assert Howard Johnson’s was negligent in not exercising proper security measures to protect guests and other persons on the premises from actions such as those perpetrated by Essex, in allowing doors between a fire escape and a connecting parking lot to remain open in spite of the dangers inherent in such a situation, and in failing generally to exercise due precautions under the circumstances.

Exceptors concede a proprietor owes a duty of care to those on his premises. They assert, however, that because of that duty it was incumbent upon this proprietor to summon policemen to the motel under emergency conditions to aid its guests and eliminate the armed sniper. They further contend the proper standard of negligence by which they should be judged is the duty-risk analysis emanating from Dixie Drive It Yourself Sys. v. American Beverage Co. They argue that under the duty-risk theory the jurisprudence of this state holds a proprietor is not liable for injuries to professional rescuers because those rescuers do not fall within the ambit of risk of the proprietor’s original negligence. After considering the record and the arguments advanced, we conclude the exceptors are correct.

The question of causation and the resulting liability has been analyzed in Louisiana under two separate approaches. The older approach required the courts to first determine whether a defendant had been negligent, and if he had, then determine whether his negligence was the “proximate cause” of plaintiff’s injury. In DixieA the Supreme Court applied the “duty-risk” formula, reversing the order of analysis. Under this method of analysis, the first inquiry is whether the actions or omissions of the defendant caused injuries to the plaintiff. If the court finds they did, the next inquiry is whether defendant owes plaintiff a duty of care. To answer this question, the court first determines whether a rule of law, statutory or jurisprudential, protects plaintiff’s interest. If the court answers this question in the affirmative, it must then ask whether the rule of law protects the particular plaintiff from the particular type of harm occurring in the particular manner.

Appellees argue we should pretermit a consideration of their alleged fault or negligence because the Louisiana courts have already determined, based primarily on reasons of public policy, that a defendant proprietor is not liable to police officers or other rescuers injured by a third party when responding to a call for help. In Laird v. Travelers Insurance Company, the court stated:

“. . . The resolution of the duty-risk element of tort liability adversely to the claimant pretermits an inquiry into ultimate negligence or fault, for liability cannot be imposed for negligent acts in the absence of that relationship.”

To impose liability on defendants in this case would result in placing a double standard of liability upon the proprietor of a public place. For example, in Weaver v. O’Banion, the court held a bartender’s negligence in allowing a fight to start did not furnish a basis for imposing liability on him to a policeman injured in the fight. In that case an off-duty state police officer displayed his badge in an effort to stop a disturbance and was struck by a bar patron. The officer sued the bar proprietor on the theory he was liable for the policeman’s injuries because the bartender had negligently allowed the disturbance to intensify. The trial court allowed recovery, but the appellate court reversed, finding plaintiff was not within the ambit of risk of the bartender’s negligence.

The court in Weaver quoted with approval Malone, Ruminations on Cause-In-Fact, as follows:

“All rules of conduct, irrespective of whether they are the product of a legislature or a part of the fabric of the court-made law of negligence, exists for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.”

The Weaver court examined the policy aspects of a proprietor’s duty of care, and held that the “rule of conduct” did not protect a policeman from the negligence of a bartender in allowing a fight to intensify. The court stated:

“Plaintiff's contention puts a bartender in the position of being responsible to patrons for injuries he does not prevent by, among other means, calling the police and to the police if he calls them and one is injured.”

In effect, the court refused to burden a business proprietor with a similar liability standard first to patrons on the premises and second to those summoned in their professional capacity to aid the patrons in time of danger. This policy encourages a proprietor to call for professional help and discourages dangerous attempts at self-help.

A similar holding was reached by this court in Thompson v. Warehouse Corp. of America. In Thompson we held a proprietor’s negligence in causing or increasing a fire furnished no basis for imposing liability upon him to a professional fireman injured in fighting the fire to which he was summoned. The court stated:

“. . . We hold that negligent maintenance of a sprinkler system, which may result in a fire’s burning more fiercely or with denser smoke or otherwise more dangerously, is not a breach of duty— fault within La.C.C. 2315 — towards the firefighters who may come to fight the fire.”

The court further stated it was unreasonable to hold an owner owes a duty to firefighters not to allow his building to catch fire; on the contrary, it is the firefighters’ duty to property owners (and neighbors) to save them from their negligence.

Our consideration of the issue presented in this case compels a holding that a proprietor with a duty of care for the lives, safety and property of those on his premises should not be discouraged from calling for aid from police or firemen because of fear of liability resulting from injury to them by third parties. Accordingly, assuming the truth of all well-pleaded facts in plaintiffs’ petitions, we hold those petitions do not state a cause of action against the excep-tors.

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

AFFIRMED.

      . See Davis v. Alamo Plaza of Shreveport, Inc., La.App., 253 So.2d 232.

      . 242 La. 471, 137 So.2d 298.

      .Defendants do not concede negligence on their part, but instead argue the question of their negligence should not be reached in this case.

      .263 La. 199. 216. 267 So.2d 714. 720.

      . La.App., 359 So.2d 706.

      . 9 Stanford L.Rev. 60, 73 (1956).

      . Supra, note 5, at page 708.

      . La.App., 337 So.2d 572.


text:
    DEPARTMENT OF CULTURE, RECREATION & TOURISM of the State of Louisiana, v. FORT MACOMB DEVELOPMENT CORPORATION, Chef Enterprises, Inc. and National American Bank of New Orleans.
    No. 10767.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Aug. 5, 1980.

      William J. Guste, Jr., Atty. Gen., Ernest R. Eldred, and Warren E. Mouledoux, Sp. Asst. Attys. Gen., Baton Rouge, and Gerard H. Schreiber, Sp. Asst., New Orleans, for plaintiff-appellant.
    Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, Guy B. Scoggin, New Orleans, for defendant-appellee, National American Bank of New Orleans.
    Sidney M. Bach, New Orleans, for appel-lees, Edmond G. Miranne, Sr., et al.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, the Department of Culture, Recreation & Tourism of the State of Louisiana (now the Louisiana State Parks & Recreation Commission), filed suit to evict Fort Macomb Development Corporation and Chef Enterprises, Inc. from Fort Macomb, an historical site in eastern Louisiana, for non-payment of rent. Plaintiff also sued to cancel the lease to Fort Macomb, a sublease to Chef Enterprises, Inc. of a portion of the leased premises, a mortgage of the lease in favor of defendant, National American Bank, and an assignment of the lease from Fort Macomb Development Corporation to National American Bank. Defendants answered, denying plaintiff’s right to the relief requested. In addition, the defendant bank affirmatively pled the defense of es-toppel.

The trial judge found the rent to be in arrears and Fort Macomb to have violated an audit provision in a separate compromise agreement sufficient to justify eviction, but nevertheless dismissed the state’s suit for eviction on the basis of estoppel. Plaintiff has appealed.

The record reveals that in 1965 Fort Ma-comb was in a state of total disarray, grown over with vegetation, and inaccessible to the public. Plaintiff wished to reestablish it as a landmark and to use it as a tourist attraction but lacked funds to make the necessary repairs. By special legislation, plaintiff was authorized to lease the fort and the 16.03 acres around it. In pertinent part this legislation reads as follows:

“The commission may:
Lease lands belonging to the state of Louisiana and/or State Parks Commission known as Fort Macomb, located in the vicinity of U.S. Highway 90 and Chef Menteur, under its jurisdiction when it believes it advantageous to the state to do so in the most orderly development and improvement of state parks; such lease may be made after publishing an advertisement in the official journal of Orleans Parish setting forth a description of the lands to be leased, the time when bids therefor will be received and a short summary of the terms, conditions and purposes of the lease to be executed, which advertisement shall be published for a period not less than fifteen days and at least once a week during three consecutive weeks; however, such lease may not be entered into for a period in excess of twenty-five years with an option to renew for an additional twenty-five years; and further, the lease shall not be contrary to the terms of any other contract the commission has already entered into.”

On February 24,1966, plaintiff leased the property to Fort Macomb Development Corporation expressly under the authority of Act 158 of 1965. At the same time plaintiff and Macomb entered into an agreement for development of the property, with improvements to the fort, dredging of a harbor, and construction of docks and boathouse facilities. To finance the project, Macomb borrowed $275,000 from defendant, National American Bank. This loan was executed on July 9, 1971, and to secure the Loan Ma-comb mortgaged its lease to the National American Bank. In addition, Macomb assigned the lease to the bank. Plaintiff intervened in both the mortgage and the assignment of the lease. The mortgage contained the following provision:

“. . . and the said State Park and Recreation Commission does covenant further that should there be any default by Fort Macomb Development Corporation in the performance of any obligation under this mortgage or under its lease obligation during the term of the mortgage, or while any sum be due or remain to be paid under this mortgage, the State Park and Recreation Commission will take no action as lessor prejudicial to the interest of mortgagee nor will it take any action which decreases the value of the security hereunder, or fail to take any action necessary to protect mortgagee’s interest in such security.”

A resolution by the State Park & Recreation Commission had been previously passed to authorize this action.

The bank loaned Macomb $275,000 which was used for improvements on plaintiff’s land, including the dredging of a waterway and construction of thirty-eight boathouses.

Plaintiff attempts to have the mortgage of the lease cancelled on the theory that it was extinguished by confusion under Article 2217 of the Civil Code when the bank acquired the lease by assignment. However, the wording of the assignment was limited in its terms to exist “so long as the mortgage or any portion thereof remains unpaid . . . ” The assignment was also conditioned on the agreement by Ma-comb that “during the term of such lease it [Macomb] will undertake to perform all of the conditions and obligations of such lease for the account of National American Bank at the expense of assignor.”

The wording of the lease, and the testimony adduced at the trial below, clearly shows that all parties treated this assignment of lease as a security device only, and at no time was it regarded as an absolute assignment to the bank. Through both law suits and negotiations between the State and Macomb, the lease was treated as though Macomb still owned it, and on some occasions the bank was not notified of or allowed to participate in negotiations and litigation involving the leased premises.

Article 2217 of the Civil Code provides:

“When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.” LSA-C.C. Art. 2217.

In order for a mortgage to be extinguished by confusion, either the principal obligation securing it must be extinguished by confusion or the mortgaged property must be acquired by the mortgagee. However, there is no concept in Louisiana of partial extinguishment of an obligation by incomplete confusion of a principal obligation, nor where the mortgaged property is only acquired in part by the mortgagee.

In Langley v. Police Jury of Parish of Calcasieu, the court stated at page 305:

“ ‘For confusion to occur the same person must acquire the full and perfect ownership of both sides of the obligation by a conveyance which is translative of title.’ ”

The assignment of the lease was not an act translative of title; it merely represented a security device in order to further secure the advance of money by the bank. Under such circumstances, confusion did not occur by the mortgagee bank’s acquiring ownership of the mortgaged thing.

Next, plaintiff argues the mortgage and assignment of the lease were prohibited by Section 12, Article IV of the Louisiana Constitution of 1921. This section prohibits the loan, pledge or grant of the funds, credit, property, or things of value of the state. The answer to this argument is that in the present case the state has not loaned, pledged or granted anything. Macomb in fact mortgaged its lease rights to the bank, and as such did not affect the state’s property. The state merely intervened for the purpose of subordinating its leasehold rights to the bank’s mortgage of the lease. The state did not loan, pledge or grant its lease rights. The action of the state did not violate the constitutional provision relied on by plaintiff.

Next, the state argues the lease was void ad initio because it violates the general state leasing law, R.S. 41:1211, et seq., which provides any lease granted by the state “shall not be subject to mortgage, pledge, hypothecation, or seizure and sale.” However, these restrictions are only applicable to “all leases made under the terms of this Part.” that is, under the provisions of the general state leasing statute. The lease now before the court was executed pursuant to the authority granted by Act 158 of 1965, and nowhere in the general provisions on the leasing of state lands does it appear that the legislature in any way changed the provisions or validity of this special legislation applicable only to Fort Macomb.

The state next argues the trial judge incorrectly applied the doctrine of estoppel in the present case. Estoppel has been approved by the courts of this state, and it has been held that the doctrine applies equally to the state as to individuals. The doctrine of estoppel has been applied in Louisiana in both common law terminology and in civil law concepts.

Under the common law doctrine equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. Consequently, there are three elements of estoppel: (1) a representation by action or word; (2) justifiable reliance on the representation; and (3) a change in position to one’s detriment because of the reliance.

The doctrine was discussed in civil law terminology in Burk v. Livingston Parish School Board, in terms of unjust enrichment under Article 1965 of the Civil Code and under the concept that one cannot accept the benefits of an act and repudiate its obligations. Using either common law or civil law terminology, all the elements of estoppel have been met in the present case. The state, by its actions and words, did many things to encourage the defendant bank to advance $275,000 to be used for improvements on the state’s property. The state enriched itself to that extent at the expense of the bank. The state acted by intervening in the mortgage in order to subordinate its rights and to further covenant that it would take no action which would prejudice the bank’s mortgage. The state went so far as to agree to take all action necessary to protect the bank’s interest in the security. The testimony leaves little doubt the bank would not have made the loan without the state’s guarantee to perform its part of the contract, and there is no evidence that the state raised the question of the validity of the lease or the bank’s mortgage throughout all negotiations leading to the eventual $275,000 loan. On the contrary, the actions of the state indicate it considered all documents valid and binding between the parties. If the trial court had allowed cancellation of the lease, the state would have been able to claim the benefits of its contract and at the same time escape its contractual obligations. Such a consequence cannot be allowed.

Finally, the state argues it cannot be estopped to contest unauthorized actions by its officers. This argument is not valid. All actions taken by the director of the Louisiana State Park & Recreation Commission were authorized in advance by the commission. When he intervened in the act of mortgage to subordinate state park’s rights in the lease to the bank’s mortgage, he did so with the authority granted to him by virtue of a resolution of the commission passed by a unanimous vote of its members, and the language contained in the intervention by plaintiff is copied directly from this resolution of the committee, which resolution was attached to the act by which the state subordinated its rights to the bank’s mortgage on the lease.

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

AFFIRMED.

      . Act 158 of 1965, R.S. 56:1690.

      . This assignment to the bank poses one of the issues for our decision.

      . See 36 Tul.L.Rev. 521, at 531.

      . 201 So.2d 300.

      . This provision was carried forward in the 1974 Constitution as Section 14, Article 7.

      . See also Emery v. Orleans Levee Board, 207 La. 386, 21 So.2d 418, and Arata v. Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362.

      . However, even if the state’s position were correct, it should be noted state leases may be subleased, transferred or assigned by the original lessee, its sublessees, heirs or assigns with written approval of the state. R.S. 41:1216(B).

      . See Reeves v. Leche, 194 La. 1070, 195 So. 542; State v. Register of State Land Office, 193 La. 883, 192 So. 519; Clark v. City of Opelousas, 147 La. 1, 84 So. 433.

      .See State v. Gulf, Mobile & N.R. Co., 191 La. 163, 184 So. 711; American Bank & Tr. Co. v. Trinity Universal Ins. Co., La.App., 194, So.2d 164, Affirmed, 251 La. 445, 205 So.2d 35; and Babin v. Montegut Insurance Agency, Inc., La. App., 271 So.2d 642.

      . 190 La. 504, 182 So. 656.

      . See Succession of Monette, 26 La.Ann. 26; Theriot v. Michel, 28 La.Ann. 107; Sherer-Gillett Co. v. Bennett, 153 La. 304, 95 So. 777; and Horne v. Beattie, 167 La. 647, 120 So. 38.


author: GARRISON, Judge.

text:
    J. L. RUMOLD & COMPANY, INC. v. RAULT PETROLEUM CORPORATION et al.
    No. 10689.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Aug. 5, 1980.

      Leach, Paysee, & Baldwin, Ford J. Dieth, New Orleans, for defendant-appellant.
    Krieger & Krieger, I. Jay Krieger, New Orleans, for plaintiffs-appellees.
    Before SAMUEL, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a district court judgment rendered in favor of a plumbing subcontractor and against the owner acting as his own general contractor. The owner withheld payment of the balance due on the construction contract, alleging that the plumbing contractor had not complied with the contract requirements in that he failed to obtain the certification of Technical Designs, Inc., he substituted fixtures other than those specified in the contract, and he performed the work in a shoddy and substandard manner. The owner additionally argued that an invoice in the amount of $1,004.52 for “overtime” work was not authorized by him and that the work was not additional “overtime” work, but rather part of the original contract.

The trial court rendered judgment in favor of J. L. Rumold Co., the plumbing contractor, in the amount of $14,000.00, the unpaid balance, plus $1,004.52 for overtime work. From that judgment, the owner appeals.

The findings of the Commissioner, which were adopted by the district court, are reproduced below:

“In May of 1973, plaintiff corporation contracted with Fejta Construction Company to perform two jobs, one contract, in the amount of $21,860.00 was for installation of 17 bathrooms and the other, in the amount of $149,072.00 was for installation of 112 bathrooms, making a total of $170,932.00 for both contracts. “In January of 1974, • the liability and payment to plaintiff by Fejta Construction Company was assumed by Rault Petroleum Corporation. Some 22 bathrooms were not trimmed out and it was agreed that a credit of $13,120.00 would be given defendant, thus reducing the total to $157,812.00.
“The parties admit that as of March 1, 1974, $123,257.00 had been paid to plaintiff by either Fejta Construction company or defendant Rault Petroleum Company, and that the balance due plaintiff, as of that time was $34,555.00. And on that date, defendant proposed that $19,555.00 would be paid plaintiff in cash upon completion of the work, with the remaining $15,000.00 to be paid by a note of defendant corporation, bearing 8V»% interest, payable on or before 180 days and personally guaranteed by defendant Joseph M. Rault, Jr.
“This proposal by defendant, although acceptable to plaintiff, was never carried out. Instead other payments were tendered to plaintiff, other charges were made and disputes arose; but as of September 16, 1974, a settlement was reached, recognizing that there existed a balance due of $28,000.00. And as security for the payment thereof, and to effect release of lien, defendant corporation submitted two letters of credit, each in the amount of $14,000.00, one due on December 16, 1974 and the other due on March 15, 1975. The letter of credit due December 16, 1974 was paid.
“The letter of credit due March 15, 1975 contained a condition that the draft for payment thereof be accompanied by written approval of the work by professional engineers of Technical Designs, Inc. An attempt was made by plaintiff to obtain this approval but Technical Designs refused to examine the work because it had neither been paid therefor nor authorized by defendants to make the examination. The letter of credit was therefore not presented to the bank when due. Payment thereof was further made impossible because nine days before its due date, defendant notified the bank not to honor the same.
“Plaintiff’s suit is not based upon the unpaid letter of credit but upon the balance due under its contract, plus $1,004.52 due for overtime work.
“The Court is of the opinion that plaintiff has sustained its burden of proof. Defendant admitted that an agreement had been reached, whereby the balance due plaintiff was $28,000.00. It admitted that two letters of credit were issued and that one was paid. Defendant has pleaded neither set-offs nor reconventional demands against the plaintiff in answer to this suit. The essence of defendant’s defense, simply stated, is that plaintiff failed to produce a certificate of satisfactory completion as required by the second letter of credit, and until such certificate is produced, plaintiff has no claim to assert. But as heretofore stated, plaintiff’s claim is for the balance due under its contract and not for the $14,000.00 due under the letter of credit.
“An attempt was made to show deficiencies in plaintiff’s work. But these deficiencies existed in December of 1973. On January 2, 1974 the work scope was reduced, the contract was revised and deficiencies pointed out in letters dated December 4, 1973 and December 11, 1973 were remedied and plaintiff received payments under the contract following said revision thereof, of $40,000.00 and $39,-113.00 and $6,000.00, with no complaints being received by plaintiff after the revision of the contract of January 2, 1974, and no punch list setting forth complaints being tendered to plaintiff after said date.
“As a matter of fact, on March 1, 1974 defendant, by letter addressed to plaintiff, thanked it for its cooperation and complimented plaintiff on the work performed to that date. At this point in time plaintiff had been paid $123,257.00. “Defendant testified that when the hotel was opened in January of 1975, Crescent City Plumbing was employed to do corrective work which plaintiff failed to properly perform. There was testimony by defendant complaining about the chill water system, but the evidence showed plaintiff did not install this. There was testimony by defendant about the blow out supply of fittings, but the evidence showed that the controls which set different pressure ratios had been tampered with, resulting in excess pressure in the lines.
“Defendant complained about looseness of the shower heads but the evidence showed that because of delays in the setting of the studs, which were not the making of plaintiff, the pipes could not be anchored.
“The evidence disclosed that Crescent Plumbing had not been employed merely to do corrective work but had been employed as a second contractor to do the same type of work plaintiff was doing. Defendant failed to establish that its complaints related to plaintiff’s work and not that of Crescent. Some plumbing was definitely not completed but this was the plumbing that had been taken out of plaintiffs contract, and for which defendant had been given a credit.
“The charge for overtime, in the sum of $1,004.52 was the result of nighttime work done on March 12,1975, to complete the setting of the fixtures that plaintiff was required to furnish. Plaintiff was unable to do this work during the daytime because the building was not in a position to accept it. Defendant was anxious to have the work done and requested of plaintiff that the work be done on overtime. Up until March 12th, when the request was made, plaintiff had not been notified that the building was ready to accept the setting of fixtures. “Defendant failed to satisfactorily show that the work performed by plaintiff was not performed in a workmanlike manner. “Plaintiff completed the contract in accordance with the terms of its agreement. Said agreement did not require that a certificate be submitted by Technical Design prior to final payment being received. It was the letter of credit that made that requirement. But the letter of credit did not alter the terms of the contract; it was given merely as additional security. And plaintiff’s suit is not directed towards the letter of credit, but is based upon the balance due it under its contract.
“The Court finds that the defendant Joseph M. Rault, Jr. is not liable in solido. His personal guarantee was intended in connection with the payment of a note to be given but which did not materialize

On appeal, the defendant specifies two errors:

1. The requirement of the approval by the engineers of Technical Designs, Inc. was a suspensive condition with which the plaintiff failed to comply thereby negating the obligation of payment.

2. The special invoice in the amount of $1,004.52 was not a charge for authorized overtime work, but rather was a double billing for work covered by the contract.

We agree with the findings below that the approval of the engineers was not a suspensive condition of the contract, but rather was a directive to the bank upon presentment of the letter of credit for payment. As the letter was never presented for payment and the defendant had instructed that no payment be made if it was presented, defendant-appellant’s argument is moot.

Accordingly, we conclude that no manifest error exists on the issue of defendant’s indebtedness and obligation to pay the remaining balance of $14,000.00.

We do, however, find manifest error on the issue of the special invoice for overtime work. Plaintiff-appellee cites the case of Smith v. Scott, 345 So.2d 981 (La.App. 2nd, 1977), and authorities cited therein for the proposition that “a contractor who adds extras to a construction with the knowledge of the owner or upon the owner’s authorization, is entitled to be paid the cost of such extras.” At 983 (emphasis added).

The record fails to support the commissioner’s finding that the defendant authorized or had knowledge of overtime work. The defendant wanted work required by the contractor to be completed:

“Q: Would you state the background if you remember?
A: We had another accident on this particular day, I think it was a water line of the 3rd floor that broke, and I called Mr. Rumold as I had before. And told him him this thing had to be repaired and further that the work on the contract had not been completed. He said that it was late in the day and I said I could not help the time of day. That we had a hotel full of guests and the work had to be done and that part of the work was hooking up and completing part of the original contract. So Mr. Rumold said he would send out the crews.
THE COURT: That is the one thousand four hundred dollars that we talked about?
THE WITNESS: Yes, sir. That was some weeks later. I did not know about overtime, pair. I thought it was work to re-
THE COURT: overtime? You did not agree to
THE WITNESS: Yes, sir.
EXAMINATION BY MR. DIETH
Q: What was your understanding of what Mr. Rumold was supposed to do at this time?
A: To finish the job that had already been part of the agreements that we talked about before and I think the repair was for a broken hot water line.”
(Testimony of J. Rault, Jr. —Tr. pp. 51-52).

It is apparent to this court that the owner neither had knowledge that the work would in question would result in additional overtime charges, nor did he authorize the work to be done as overtime work. Accordingly, we hold that finding of the commissioner to be manifestly erroneous under Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978), and reverse that part of the judgment granting to plaintiff the sum of $1,004.52.

For the reasons assigned, the judgment appealed from is amended to reduce the award from the sum of $15,004.52 to the sum of $14,000.00. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    Patrick LAFLEUR et al., Plaintiffs-Appellants, v. FIDELITY & CASUALTY CO. OF NEW YORK et al., Defendants-Appellees.
    No. 7606.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1980.

      Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiffs-appellants.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendant-appellee, Hartford.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee, State Farm.
    Roy & Forrest, L. Albert Forrest, New Iberia, for defendant-appellee, Southeastern.
    Before FORET, SWIFT and STOKER, Judges.
   STOKER, Judge.

The plaintiffs, Annie Laurie Lafleur, Norma Lafleur Brown, and Patrick Lafleur, brought this suit against their liability insurance carriers, Southeastern Fidelity Insurance Company, State Farm Mutual Automobile Insurance Company, and Hartford Accident and Indemnity Company, respectively, under the underinsured motorist portions of their policies for damages resulting from the negligently caused death of their mother. The trial court sustained motions for summary judgment filed by State Farm and by Hartford and sustained and exception of no cause of action filed by Southeastern. We affirm.

The issues in the case are as follows:

1. Does an insured under an automobile liability insurance policy which contains uninsured motorist provisions have coverage for a wrongful death action which accrues to the insured resulting from the death of a third party?
2. If uninsured motorist provisions do not afford such coverage, does the policy fail to comply with the requirements of LSA-R.S. 22:1406(D)?

The parties have stipulated that the plaintiffs’ mother, ,Mrs. Lorena Deshotel, was a passenger in a car owned and operated by her daughter, Joycelyn Lafleur, on November 24, 1977, at which time she was killed through the negligence of Joycelyn Lafleur. The automobile owned and operated by Joycelyn Lafleur was not an insured automobile within the meaning of any of the defendants’ uninsured motorist carriers policies. Mrs. Lorena Deshotel was not a resident of the household of any of the plaintiffs.

I.
DOES UNINSURED MOTORIST COVERAGE APPLY TO WRONGFUL DEATH ACTIONS ACCRUING TO INSUREDS BECAUSE OF THE DEATH OF A THIRD PARTY?

It is clear from a reading of each of the policies that the plaintiffs do not have coverage. Each of the three policies on which suit is brought contains the following language:

“TO PAY ALL SUMS WHICH THE INSURED OR HIS LEGAL REPRESENTATIVE SHALL BE LEGALLY ENTITLED TO RECOVER AS DAMAGES FROM THE OWNER OR OPERATOR OF AN UNINSURED AUTOMOBILE BECAUSE OF BODILY INJURY, SICKNESS OR DISEASE INCLUDING DEATH RESULTING THEREFROM, HEREINAFTER CALLED ‘BODILY INJURY’, SUSTAINED BY THE INSURED, CAUSED BY ACCIDENT AND ARISING OUT OF THE OWNERSHIP, MAINTENANCE OR USE OF SUCH UNINSURED AUTOMOBILE.”

The definition of an “insured” under the uninsured motorist provision is set forth as follows:

‘INSURED ’ means;
(a) The named insured and any relative;
(b) Any person while occupying an insured automobile; and
(c) Any person, with respect to damages he is entitled to recover because of bodily injury to which this Section applies sustained by an insured under (a) or (b) above.”

The definition of “relative” in the policies state:

“ ‘RELATIVE’ means a relative of the named insured who is a resident of the same household;”

It is clear from the facts of the plaintiffs’ petition and those stipulated by counsel that Lorena Deshotel, the deceased party, was not an insured under any of these defendants’ policies. She was neither the named insured, nor a relative who was a resident of the named insured’s household, nor was she occupying the insured vehicle at the time of the accident. The policies state that they will pay only for bodily injury sustained by an insured. Thus, the policy language clearly excludes the plaintiffs’ cause of action.

In Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App.3rd Cir., 1975), we denied the plaintiff recovery under the uninsured motorist provisions of his policy in a similar factual situation. In that case, the plaintiff, Andrew Chapman, had an automobile liability insurance policy with Allstate Insurance Company which included uninsured motorist coverage. Prior to the accident in question, the plaintiff and his wife were divorced with Mrs. Chapman having the legal custody of their minor son, Carl Chapman. The minor, while living with his mother, was killed as a result of an accident with an uninsured motorist. Mr. Chapman sued his insurance company, Allstate, seeking benefits under the uninsured motorist provisions of his policy as a result of the death of his minor son. We concluded that the minor was not an insured under the plaintiff's policy with Allstate and, for that reason, sustained the trial court’s dismissal of the plaintiff’s suit. See also Sea-ton v. Kelly, 339 So.2d 731 (La., 1976), in which our Supreme Court upheld these policy provisions and clearly held that the injured party must be an insured under the policy of insurance to support a claim for uninsured motorist benefits.

In the Chapman case the focus of the inquiry was on whether the minor son was an insured under this father’s automobile policy. We said that under the terms of the policy “there is coverage only if Carl [the son] is a resident of the same household as his father.” Having found that the son was not a resident of the plaintiff-father’s household, we found no coverage. In the same situation the Court of Appeal for the Second Circuit in an en banc hearing allowed a father with whom his deceased daughter did reside to recover under the uninsured motorist provisions of the father’s policy. Butler v. MFA Mutual Insurance Company, 356 So.2d. 1129 (La.App., 2nd Cir., 1978), writ denied 358 So.2d 641 (La., 1978). In the Chapman and Butler cases the courts approached the question on the basis of whether the deceased was insured in a wrongful death action by an insured survivor. This is not the approach urged by plaintiffs before this court.

Plaintiffs pitch their cases on the contention that the language of the policy quoted above covers them as insureds for their loss under LSA-C.C. art. 2315 for the wrongful death of their mother. As particularized in plaintiffs’ brief, their argument is as follows:

“This Court decided in Chapman v. Allstate Insurance Company [La.App.], 306 So.2d 414, a case which was urging a similar loss, that is, Mr. Chapman sued for the wrongful death of his son. Under the facts it was determined that the son was not a resident of the father’s household and it appears that the decision in the case turned solely on this point. We feel that an analysis should have been urged in that case of the nature of the wrongful death claim or claims, that is, the claim of the decedent and the claim of the Article 2315 survivor.
The defendants have asserted that the injuries suffered by the plaintiffs do not come within the meaning of the term ‘bodily injury’ as it is used in the policy. The defendants assert that the term ‘bodily injury’ as it is contemplated in the policies refers solely to actual physical injury to the person of the insured, or at least some injury which manifests itself by a physical infirmity or abnormality in the person of the insured. This Court, in Chapman entertained no such distinction. Clearly the Court would have allowed wrongful death damages as contemplated under Article 2315 if the facts in Chapman had indicated that the son was living in his father’s home. Thus we do not believe that the ‘bodily injury’ analysis suggested by the defendants is pertinent. On the contrary, it is submitted that the damages occasioned to the plaintiffs by the death of their mother can be classified as bodily injury within the meaning of the policy. See the discussion in 24 Loyola Law Review 85 at pages 96 and 97. The loss occasioned by the plaintiffs manifest itself in lost sleep, depression, sorrow, grief and emotional disturbance — all of which include physical manifestations of the injuries suffered by the loss of their mother. These are outward manifestations of the psychic injuries suffered by the plaintiffs, and these injuries come within the meaning of bodily injury as used in the policy.”

After analyzing plaintiffs’ position and the policy provisions we disagree that the policy provides coverage for their wrongful death action arising from their mother’s death. We do not believe such coverage was within the intention of either the insurer or insureds. Hence, we hold the trial court was correct in denying plaintiffs’ claims against their various automobile insurers.

We believe that the clear language of the policies in question excludes coverage for the plaintiffs. The language of the policies is clear and unambiguous and does not lead to any absurd consequences. It is the law between the parties and must be given effect as written. Mrs. Lorena Deshotel cannot be considered an “insured” for the purposes of these policies.

II.
DOES LSA-R.S. 22:1406(D) REQUIRE THAT AUTOMOBILE INSURANCE POLICIES CONTAIN UNINSURED MOTORIST COVERAGE PROVIDING RECOVERY FOR INSUREDS WHO ARE ENTITLED TO RECOVER FOR THE WRONGFUL DEATH OF A THIRD PERSON UNDER LSA-C.C. ART. 2315?

Plaintiff urge an alternative position which they contend should be invoked in the event we interpret the policies as we have interpreted them above. Their position is that the statute governing the issuance of uninsured motorist coverage in this state requires coverage for claims for wrongful death actions in situations such as those presented here. They rely on the following language from LSA-R.S. 22:1406(D); particularly that portion which we italicize:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
“(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the Commissioner of Insurance, for the protection of persons insured thereunder, who are legally entitled to recover damages from owners or operators of uninsured or under insured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits . . . ” (Emphasis added)

It is the position of the plaintiffs-appellants that any language contained in the insuring agreement issued by their respective companies which is in derogation of this broad statutory language is void and ineffective.

The statutory language referred to above is identical in terms with language found in the automobile policies of defendants which were issued to plaintiffs-appellants, with the exception that the language of the policies refers to “bodily injury sustained by the insured.” Assuming the approach of Chapman and Butler is incorrect in that, as plaintiffs-appellants urge, the inquiry should focus on them as insureds and not on whether their non-insured mother was an insured, we see no derogation of the statute. We have already ruled above that even under this interpretation, no coverage is afforded. We have so ruled, not because we feel that the terms “bodily injury sustained by the insured” is not broad enough to cover the damages sustained by an insured resulting from the death of a person bearing the required relationship to the insured specified in LSA-C.C. Art. 2315; rather, it is because we are of the opinion that such coverage was not within the contemplation of the contracting parties.

We are likewise of the belief that the Louisiana Legislature did not intend for the statutory language contained in LSA-R.S. 22:1406(D)l(a) to afford coverage for what an insured may be legally entitled to recover as his “wrongful death” damages, sustained because of the death of some third person. As we have noted, there is authority under Chapman v. Allstate Insurance Company, supra, and Butler v. MFA Mutual Insurance Company, supra, for the proposition that if the person whose death is wrongfully caused is an insured, any person who is also an insured and entitled to recover for wrongful death under LSA-C.C. Art. 2315, may invoke the uninsured provisions of a policy. Here the mother of plaintiffs-appellants, Mrs. Lorena Deshotel, was not an insured. She was a third person having no connection with the policies of insurance, the insured vehicles, or the households of the plaintiffs-appellants.

Inasmuch as we hold that the statute in question was not intended to extend to such operative facts as are before us, we see no violation of the statute in giving the policy provisions the interpretation we have given them.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to plaintiffs-appellants.

AFFIRMED.

      . While having great respect for the panel of this court which decided the Chapman case and the court which decided the Butler case, the writer of this opinion has reservations concerning the theoretical basis on which they are bottomed. The implication of Chapman made explicit in Butler is that insured survivors can recover for the wrongful death of any other person who was an insured if the survivor is otherwise entitled to recover under LSA-C.C. art. 2315. For purposes of this case the issue need not be reexamined. I am in full agreement with the view that no coverage existed in the situation in this case. Although a writ was denied in Butler such action does not necessarily constitute approval of the court of appeal opinion or create precedent. White v. Louisiana Western Ry. Co., 174 La. 308; 140 So. 486 (La., 1932); and Lombardo v. Argonaut Insurance Company, 354 So.2d 731, writ denied, 355 So.2d 1325 (La., 1978).

      . Louisiana’s wrongful death statute is contained in Article 2315 of the Louisiana Civil Code (LSA-C.C. art. 2315). It provides as follows:
      “Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.” (Emphasis supplied).


author: SWIFT, Judge.

text:
    COMMERCIAL CREDIT CORPORATION, Plaintiff-Appellant, v. Charles Alex NOLAN, Sr., et al., Defendants-Appellees.
    No. 7618.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1980.

      Peter C. Piccione, Jr., Lafayette, for plaintiff-appellant.
    Richard M. Sandefer, Lafayette, for defendants-appellees.
    Before CULPEPPER, SWIFT, and STOKER, JJ.
   SWIFT, Judge.

Plaintiff, Commercial Credit Corporation, brings this appeal from the judgment rendered below awarding defendant, Irene Nolan, damages and an attorney’s fee for the wrongful seizure of her mobile home. The appellees have neither appealed nor answered the appeal.

The record reveals that on April 30,1970, Larry and Lily Bourque purchased a mobile home from Eddie’s Mobile Homes, Inc. and as a part of the consideration for the sale the Bourques executed a monthly installment note in the total sum of $10,650.00. A chattel mortgage was granted the vendor to secure the note and they were assigned contemporaneously to the plaintiff. The Bourques transferred their interest in the mobile home to defendants, Charles Nolan, Sr. and Irene Nolan, subject to the contract of sale and chattel mortgage. In the act of transfer, dated May 20, 1974, the Nolans agreed to pay Commercial Credit the remaining balance of $6,478.75 in monthly installments of $88.75 payable on the 23rd of each month. Later, these were changed by agreement to $97.88 payable on the first of each month.

On March 20, 1979, plaintiff filed a petition for executory process alleging that defendants were in default by failing to pay the February 1, 1979, installment on the note and that the remaining balance thereof was due under, the acceleration clause. The mobile home was seized pursuant to a writ of seizure on March 22,1979. Mr. and Mrs. Nolan were living separate and apart at the time and the husband was served with notice of seizure and sale through a curator.

On April 17, 1979, the defendants filed a petition in this executory proceeding to enjoin the seizure and sale of the mobile home on the ground that the February, 1979, installment and all others then due had been paid. Defendants also prayed for damages and an attorney’s fee for the wrongful seizure.

Following the hearing and a 10 day period for both sides to furnish the court further proof of damages and also authorities, the trial judge, finding that defendant, Irene Nolan, had complied with the terms of the contract, awarded her damages in the sum of $3,205.72 and an attorney’s fee of $500.00. The award was made subject to an “offset” in favor of Commercial Credit for the unpaid balance of the chattel mortgage note amounting to $1,524.34, making a net award to Mrs. Nolan of $2,181.38. The injunctive relief sought by the defendants was not mentioned in the trial judge’s oral or written reasons or in the formal judgment. However, in between the judge’s oral ruling from the bench that the seizure was wrongful and her written reasons for the damage award, on joint motion of counsel the previous order for seizure and sale was recalled and set aside and the mobile home was released to Mrs. Nolan without prejudice to the parties.

WRONGFUL SEIZURE

Plaintiff first contends that the trial judge erred in finding that defendants were not in default and that the seizure was wrongful.

Executory process, of course, is a harsh remedy and a party employing same must strictly comply with the requirements for its use set forth in LSA-C.C.P. Art. 2631 et seq. May Co., Inc. v. Heirs of Sumage, 347 So.2d 916 (La.App. 3 Cir. 1977). One of these is that the plaintiff must allege and prove the breach of a condition of the mortgage maturing the obligation either by the verified petition or affidavits submitted therewith. Art. 2637.

As stated above, the only breach of such a condition alleged in the verified petition filed in this case is that the defendants failed to pay the installment due February 1,1979, on the note. To the contrary, at the hearing on the rule for preliminary injunction there was admitted in evidence a check of Mrs. Nolan payable to plaintiff dated January 29, 1979, for $97.88 marked “Feb Payment” which was stamped “PAID” by the bank on January 31, 1979. The record also contains Mrs. Nolan’s can-celled checks for the January and March 1979 payments as well as 12 other checks for the 1978 monthly installments. Despite the court’s ruling that other information sought to be introduced went beyond the scope of the pleadings, Mr. A. J. Guidry, the manager of Commercial Credit, was permitted to testify that defendants’ account had a debit balance of $12.12 after the February 1, 1979, payment, because that amount of such payment was credited to late charges accumulated in the past.

While the note and mortgage provide for the assessment of a late charge for failure to pay a loan installment within 10 days of its due date, there is no provision therein which authorizes the creditor to impute or credit any part of an installment payment to a late charge. As we view the matter, the monthly installments and late charges were two separate and distinct obligations of the debtors. Having proceeded to foreclose via executiva on the allegation and proof that the defendants had breached their mortgage solely by failure to pay the February 1, 1979, installment, the plaintiff could not later attempt to prove another breach thereof at the hearing for injunctive relief to arrest the proceeding. The trial judge’s original ruling that such evidence was beyond the scope of the pleadings was correct and the evidence should have been excluded.

Be that as it may, our examination of Mrs. Nolan’s checks for the 1978 and 1979 payments reveal that all payments were made within ten days of the first of each month. Consequently, in our opinion the plaintiff has failed to prove by a preponderance of the evidence that defendants actually owed any late charges when this executory process proceeding was filed.

DAMAGES

The plaintiff contends that no damages should have been awarded in this case because the trial judge failed to grant the injunctive relief sought by the defendants. While a damage award generally accompanies a decree for injunctive relief to prevent wrongful seizure and sale, the latter is not necessarily a prerequisite thereof. Such damages are awarded as a consequence of the wrongful seizure, not the issuance of the temporary restraining order or preliminary injunction arresting the seizure and sale. In this case the question of the defendants’ right to injunctive relief became moot when the court recalled and set aside its original order for executory process by agreement of the parties. Therefore, the necessity for a ruling thereon no longer existed.

The trial judge awarded the following damages for the wrongful seizure:

Damage to mobile home: $ 289.91
Cost of estimate of repair: 40.81
Loss of rental income for 2lh months: 375.00
General damages: 2,500.00
Attorney’s fee: 500.00

The plaintiff asserts that such damages were not proved by a preponderance of the evidence. Mrs. Nolan testified that she had rented the mobile home to tenants for $150.00 a month prior to its seizure and had to refund a $50.00 deposit to a renter who was to move into the home on the day after it was picked up by the sheriff. No evidence was presented to contradict such testimony. Since the defendant was deprived of the mobile home for 2Vi: months, the court’s award of $375.00 for rental income loss was correct.

Mrs. Nolan’s testimony that during the seizure the mobile home was damaged when it fell on its side in a ditch also was uncontradicted and the only evidence presented as to the cost of repair was an estimate produced by the defendant in the sum of $289.91. In our opinion the award of this item of damage was proper.

Plaintiff contends that the trial court erred in awarding general damages of $2,500.00. It is, of course, well settled that a party aggrieved by wrongful seizure is entitled to recover not only the special damages sustained but also general damages for humiliation, embarrassment, mental trauma, depression, inconvenience and worry. Dawson v. Piazzi, 371 So.2d 283 (La.App. 1 Cir. 1979); Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La. App. 4 Cir. 1973); General Motors Acceptance Corporation v. Meyers, 377 So.2d 1355 (La.App. 3 Cir. 1979), Writ granted. Upon appellate review much discretion must be left to the discretion of the judge or jury in the assessment of such general damages. Mid-State Homes, Inc. v. Lartigue, 383 So.2d 99 (La.App. 3 Cir. 1980). Our examination of the record does not reveal that the trial judge abused her “much discretion” in awarding defendant $2,500.00 for the humiliation, embarrassment, inconvenience and worry suffered as a result of being deprived of the possession of her mobile home for 2V2 months.

Plaintiff also contends the trial judge erred in refusing to grant a new trial for the reason that it has discovered evidence from witnesses that the mobile home did not capsize during its seizure by the sheriff, as testified by Mrs. Nolan. However, it failed to prove that it could not have discovered the new evidence, with due diligence, prior to or during the trial. Consequently, no error was committed in denying the motion for a new trial. LSA-C.C.P. Art. 1972.

Finally, the plaintiff contends that the hearing on the petition for injunction should not have been held in the absence of Mr. Nolan. The record reveals that although Mr. Nolan was not present during the hearing, the petition for injunctive relief was filed on behalf of both Mr. and Mrs. Nolan. Mr. Nolan has not questioned the authority of his counsel and the fact that he was not present at the hearing does not affect the validity of the judgment against the plaintiff.

We are unaware of authority for the trial judge’s grant of an offset or credit to plaintiff for the remaining balance of its mortgage note. However, the defendants have not complained of this. Furthermore, since they have neither appealed nor answered the appeal the judgment cannot be changed in their favor. Texas Gas Transmission Corporation v. Hebert, 207 So.2d 368 (La. App. 3 Cir. 1968).

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

AFFIRMED.


author: DOUCET, Judge.

text:
    Richard M. PRIMEAUX, d/b/a Acadian Engineering Company, Plaintiff-Appellant, v. Merk GASPARD, Defendant-Appellee.
    No. 7621.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 1980.

      Riddle & Bennett, John T. Bennett, Marksville, for defendant-appellee.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Richard M. Primeaux, d/b/a/ Acadian Engineering Company, brought this suit against Merk Gaspard to collect the balance of $18,300.00 due under a construction contract, pursuant to which he delivered and erected a prefabricated metal building on defendant’s property. Defendant answered and filed a reconventional demand, seeking a reduction of the price because of defects in the building, attorney’s fees, and damages caused by plaintiff’s failure to satisfactorily complete the building on schedule.

Following a trial, the district court rendered judgment in favor of defendant on his reconventional demand in the sum of $4,769.00. Plaintiff appealed, and defendant answered the appeal, seeking an increase in the amount of the judgment against plaintiff, plus attorney’s fees for the services of his attorney at the trial and on appeal.

The evidence shows that for a number of years defendant has been in the business of selling honey bees. In 1978, he decided to begin extracting and selling honey from some of his approximately 1,500 bee hives. He contacted plaintiff about constructing a building on his property that was suitable for use as a honey extraction and bottling plant. Plaintiff prepared a proposal for the construction of a Butler prefabricated metal building, which he submitted to defendant in a letter dated March 8, 1978. In his letter, plaintiff stated that the estimated time for delivery of the building was six weeks and that its erection should be completed two or three weeks thereafter.

On March 22,1978, the parties executed a written contract based on plaintiff’s proposal. The price that they agreed upon was $38,500.00. $33,750.00 was to be paid upon delivery of the building, and $4,750.00 was to be paid upon the completion of its erection. Defendant and Mr. E. J. Walker, who witnessed the execution of the contract, testified that plaintiff stated at that time that the erection of the building would be completed within eleven weeks from that date.

There was a delay in the delivery of the building, which plaintiff attributed to his inability to get it from the manufacturer. On May 22, 1978, defendant’s attorney wrote to plaintiff, putting him in default and notifying him that defendant would seek damages caused by the delay in delivery. It was established at the trial that the business of extracting honey is seasonal in nature, the latest time for extraction being the middle of August or the first of September.

The building was delivered to the job site on June 12, 1978. Defendant paid $20,-000.00 at that time. He testified that plaintiff agreed to accept the reduced amount, pending a determination of how much defendant would lose as a result of the delay. However, plaintiff testified that he never consented to the reduction. Plaintiff began the erection of the building three days after its delivery. He made several demands for payment, and on August 25, 1978 he stopped working on the building. At that time the building was substantially completed, but it contained numerous defects, including leaks in the roof, missing bolts on one wall, and inadequate braces for one wall and a door. Mr. Kenneth Long, an expert on the construction of metal buildings, testified that it would cost $5,809.00 to cure the defects in the building.

The trial judge found that plaintiff was entitled to recover $12,091.00 from defendant, which was the remainder owed on the price of the building, less the $5,809.00 that would be required to cure the defects and an additional $600.00 that defendant had spent for insulation. He also found that as a result of the delay in the completion of the building, defendant had not been able to extract and sell 125 barrels of honey, which he had on hand. He found that the honey had a sale value of $300.00 per barrel, or a total of $37,500.00, and that the cost of extracting and bottling the honey was $30.00 per barrel, or a total of $3,870.00. He concluded that defendant was entitled to recover $16,860.00 as a result of plaintiff’s failure to satisfactorily complete the building within the time agreed upon, and rendered judgment in his favor in the sum of $4,769.00, the difference between $16,-860.00 and $12,091.00. The $16,860.00 figure was evidently the result of an error in computation, since the difference between $37,500.00 and $3,870.00 is actually $33,-630.00.

The following issues have been raised on appeal.

(1) Is defendant entitled to damages arising out of the delay in the delivery and erection of the building?

(2) Is defendant entitled to attorney’s fees?

On appeal, plaintiff argues that defendant is not entitled to damages for the loss of his honey, because he failed to mitigate those damages and because he did not adequately prove them. The issue of whether defendant has a cause of action for such damages under the contract has not been raised.

Plaintiff’s argument that defendant failed to mitigate his damages is based on defendant’s testimony that although there were other bee keepers in the area with equipment for extracting honey, he. did not contact them about extracting his honey for him. However, defendant also testified that his reason for not contacting them was that they were not well enough equipped to extract his honey in addition to their own during the limited season. That testimony went unchallenged. Plaintiff did not establish that anyone was able or willing to assist defendant with the extraction and bottling of his honey. We therefore reject his argument that defendant failed to mitigate his damages.

Turning to the question of defendant’s proof of his damages, we find that there was no direct evidence on the exact amount of honey that was lost. It was never measured, because it remained in the hives. Defendant testified that it costs him $30.00 per barrel, which is equal to 660 lbs., to extract the honey from the hives and bottle it. According to defendant, it would have been useless to incur the expense of extraction after the season had ended, because the honey would have been rancid and not fit for human consumption. However, defendant also testified that he had 1,100 hives available for extraction and that each hive yields 70-100 lbs. of honey. He estimated that he lost 150 barrels of honey, or an average of 90 lbs. per hive. His testimony was corroborated by Mr. Clarence Normand, who is also a bee keeper. Mr. Normand testified that in a good year a hive will yield 75-100 lbs. of honey and that in a bad year it will yield 35-50 lbs.

Mr. Normand also testified that the market price for honey in 1978 was $.48 per pound, or $316.80 per barrel. Defendant testified that the price was the same in 1978 and 1979, and that he had received $325.00 per barrel for the 164 barrels of honey that he sold in 1979. He produced three receipts for the 1979 sales. Plaintiff objected to their admission into evidence, arguing that they were not relevant to the issue of defendant’s loss in 1978 and that they were not the best evidence available. The trial judge admitted them for the limited purpose of showing that defendant was able to sell honey in 1979.

In view of that evidence, we do not find manifest error in the trial judge’s finding that defendant lost 125 barrels of honey or in his finding that the honey was valued at $300.00 per barrel. Defendant’s 1,100 hives would have had to yield an average of 75 lbs. each to produce 125 barrels. According to the undisputed testimony of defendant and Mr. Normand, that would have been at the lower end of the normal range of production for 1978. We will therefore affirm the judgment in defendant’s favor, after amending it to conform to the facts found by the trial judge.

The only remaining issue is defendant’s demand for attorney’s fees, which he bases on Article 2545 of the Civil Code. As we noted at the outset of this opinion, the contract in this case is one for the construction of a building. It has some of the appearances of a contract of sale, since the building was prefabricated and the contract speaks of its delivery to the job site. However, the negotiations and the execution of the contract were completed prior to the time that plaintiff began erecting the building. See Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir. 1976). Furthermore, it is clear from the evidence that defendant’s complaints with the building are the result of the manner in which plaintiff erected it. The trial judge noted in his written reasons for judgment that the building had not been completed and that its completion might have cured the deficiencies in it.

Under these circumstances, we find that the articles of the Civil Code dealing with sales, including Article 2545, are not applicable. The governing provision is Civil Code Article 2769, which provides:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

That article has been uniformly interpreted in the jurisprudence to mean that when a contractor has substantially performed a building contract, which he has breached by failing to satisfactorily complete the structure, he is entitled to recover the contract price less any damages that the owner may prove attributable to the breach. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Sibille v. Meyer, 355 So.2d 1003 (La.App. 4th Cir. 1978), writ denied, 357 So.2d 1166 (La.1978); W.B.P. Realty, Inc. v. Fontana, 344 So.2d 101 (La. App. 2nd Cir. 1977); Henson v. Gonzalez, supra; Neel v. O’Quinn, 313 So.2d 286 (La. App. 3rd Cir. 1975), writ denied, 319 So.2d 340 (La.1975).

Under Article 2769, defendant was entitled to have the contract price reduced by the amount necessary to complete the building and cure the defects in it. However, since that article does not authorize an award of attorney’s fees, they are not recoverable, and defendant’s demand must be rejected.

For the above and foregoing reasons, the judgment appealed by plaintiff is amended to award defendant, Merk Gaspard, the sum of $21,540.00. As amended, the judgment is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AMENDED AND AFFIRMED.