author: COLE, Judge. WATKINS, Judge,

text:
    Lucy Marie Bouffanie BOUSEGARD v. STATE FARM INSURANCE COMPANY. Nolan FREYOUX, et al. v. The ESTATE OF Leo J. BOUSEGARD, et al.
    Nos. 14356, 14357.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.

      John T. Bourgeois, Thibodaux, for plaintiff Bousegard.
    L. Albert Forrest, Roy & Forrest, New Iberia, for defendant State Farm.
    Edward L. Ardoyno, Jr., Ardoyno & Bu-bert, Metairie, for plaintiff Freyoux.
    L. Albert Forrest, Roy & Forrest, New Iberia, Robert 0. Homes, Jr., Gulfport, Miss.,''for defendant Estate of Bousegard.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether or not the trial court erred in granting a motion for summary judgment in favor of the Estate of Leo J. Bousegard, Lucy B. Bousegard and State Farm Automobile Insurance Company and against Nolan Freyoux, Rose Ann Freyoux, and Gayle Ann Edwards.

On April 14, 1977, plaintiffs Rose Ann Freyoux and Gayle Ann Edwards were the driver and passenger, respectively, of a car owned by Nolan Freyoux. They were traveling west on Highway U.S. 90 approximately four miles west of Franklin, Louisiana. At the same time the defendants Leo J. Bousegard and Lucy B. Bousegard were the driver and passenger of an automobile traveling on the same highway in an easterly direction. Suddenly the car driven by Mr. Bousegard crossed over into the opposite lane and collided head on with the Freyoux car. Mr. Bousegard did not survive the accident and the other occupants of the two cars were seriously injured.

On April 13, 1978, Mrs. Bousegard filed suit against State Farm, her husband’s insurer, alleging various acts of negligence on the part of her husband had caused her injuries. On April 14,1978, Rose Ann Frey-oux, Gayle Ann Edwards and Nolan Frey-oux filed suit against the Estate of Leo Bousegard, Mrs. Bousegard, and State Farm, also alleging Mr. Bousegard’s negligence had caused their injuries. The cases were later consolidated for trial.

The Bousegard defendants filed a motion for summary judgment, submitting various depositions to support their defense that Mr. Bousegard had not been negligent but had instead suffered from a sudden heart attack which caused his vehicle to cross into the other lane. They argued this event was unavoidable and unforeseeable, therefore neither Mr. Bousegard nor his insurer should be held responsible. The trial court granted the summary judgment in favor of the Bousegards and dismissed the consolidated cases. The Freyoux plaintiffs appealed as did Mrs. Bousegard.

In considering the motion for summary judgment we must determine if the supporting evidence shows there is no genuine issue of material fact as to Mr. Bousegard’s negligence. La.Code Civ.P. art. 966.

La.Code Civ.P. art. 967 reads in pertinent part as follows:

“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

The appellees, as movers, offered several depositions in support of their motion for summary judgment. The decedent’s wife, Mrs. Lucy Bousegard, and his son, Glen Bousegard, both testified Mr. Bousegard had never complained of chest pains or of breathing difficulties and was generally in excellent health. Dr. Felix Rabitor testified he had performed a complete physical on Mr. Bousegard two months prior to the accident and found all vital signs normal. He stated Mr. Bousegard did not complain about any chest pains. Appellants, as the adverse parties, did not offer any evidence to contradict these statements. Therefore, we must conclude the heart attack was an unforeseen event.

The deposition of Dr. Harvey Sykes, Deputy Coroner of St. Mary Parish, established that Mr. Bousegard suffered from a thrombosis (which is generally referred to as a “heart attack”) which probably caused him to lose control of the vehicle and swerve into the other lane. Based on the autopsy performed shortly after Mr. Bousegard’s death, Dr. Sykes stated the heart also ruptured, which he believed occurred as a result of Mr. Bousegard’s chest striking the steering wheel during the collision. Again, appellants did not offer any evidence in opposition to this deposition.

Under the guidance of La.Code Civ.P. arts. 966 and 967 we conclude the summary judgment was appropriate. We have certain evidence offered by the appellees showing the heart attack was unforeseeable and that it probably occurred prior to Mr. Bousegard’s losing control of the car. In addition to this evidence we are influenced by circumstances of the accident. Common sense dictates it is more probable the heart attack caused the accident rather than the accident caused the heart attack. Certainly this observation would carry no weight had appellants offered one bit of evidence to counter that offered by appellees. But since no evidence was offered and appellants are relying on the bare allegations of their pleadings, we feel that article 967 dictates we affirm the summary judgment.

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

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge,

dissenting.

In granting summary judgment the trial court relied on Dr. Sykes’ opinion testimony that the heart attack preceded and, therefore, was the cause of the collision. Thus, Dr. Sykes decided the ultimate question of the case. Summary judgment should not be granted where it relies upon opinion testimony that is determinative of the ultimate issue, in this case the question of Mr. Bousegard’s negligence in crossing the center line. See Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1st Cir. 1970).

I respectfully dissent.

      . Although Mr. Freyoux was not physically injured he filed suit claiming property damage to the automobile, community medical expenses incurred by his wife, and loss of consortium and services of his wife.

      . Mrs. Bousegard appealed apparently to protect her interest should this court reverse the summary judgment. In that situation she would want to still be able to prosecute her suit against State Farm. No briefs were filed on her behalf as appellant and no issues as to that aspect of the case are raised on appeal. Because the Freyoux plaintiffs appealed first they are referred to as the appellants in this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roger BANKS, et al. v. Charles CLAIBON, et al.
    No. 14379.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      T. Kenneth Elbert, Baton Rouge, for plaintiffs-appellants Roger Banks, Josephine Banks and Delores Converse.
    Samuel R. Cicero, Asst. Parish Atty., Walter G. Monsour, Jr., Parish Atty., Baton Rouge, for defendants-appellees Charles Claibon, City of Baton Rougé, Parish East Baton Rouge, City Parish Personnel Office and City-Parish Dept, of Public Works.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PER CURIAM.

This appeal was fixed on the September 30th docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: LOTTINGER, Judge.

text:
    Jerry H. SCHWAB, Robert L. Morris, Laura Herring Morris, Merrick A. Dugal, Jr., Norman J. Claverie, Beulah Giroir King Claverie, and Tracy L. Rhodes v. Robert E. KELTON and Claudia Gordon Kelton.
    No. 14502.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ Denied Dec. 14, 1981.

      Charles Hanemann, Houma, for plaintiffs and appellees.
    Maureen O’Connor Sullivan, New Orleans, for defendants and appellants.
    Before ELLIS, LOTTINGER, and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal by defendants from a judgment granting a preliminary injunction enjoining them from the practice of public accounting on certain premises located in Krumbhaar Subdivision, Terrebonne Parish.

Plaintiffs, all property owners in Krumbhaar Subdivision, Terrebonne Parish, filed suit to enjoin defendants, Robert E. Kelton and his wife Claudia Gordon Kelton, from the practice of public accounting on Lot One in Block Five of Krumbhaar Subdivision, as a violation of the building restrictions of said subdivision. Plaintiffs contend that the building restrictions restrict the subdivision to residential purposes and business or commercial enterprises are expressly prohibited. The defendant, Robert Kel-ton, stipulated at trial that he owns Lot One in Block Five in Krumbhaar Subdivision and that he practiced public accounting on those premises.

Krumbhaar Subdivision is situated off of Louisiana Highway 311. A railroad track traverses the subdivision as a result of which four (4) lots are between the railroad track and La. 311, with two lots located on each side of the entrance drive. The subject lot is at the intersection of La. 311 and the entrance drive. (See Appendix “A” for a copy of the plat of Krumbhaar Subdivision).

The subdivision consists of 24 separate lots, thirteen of which are improved. Defendants at the time of trial owned two improved lots in the subdivision. One lot is the Kelton residence, and the other lot is the property that is the subject of the injunction order appealed from herein. On October 25, 1971, the developers of Krumbhaar Subdivision recorded in the public records of Terrebonne Parish a document entitled “Restrictions to Krumbhaar Subdivision.”

Defendants have assigned the following specifications of error:

I. The trial court erred in failing to adequately consider relevant Louisiana law that building restrictions are unenforceable if they have been abandoned by acquiescence or inaction.
II. The trial court erred in failing to hold that the restrictive covenants are no longer in force or effect based on a general abandonment or waiver of the restrictions by other lot owners in the subdivision, including plaintiffs. Alternatively, the trial court erred in failing to hold that the specific restrictions regarding “Residential Use Only” of subdivision property have been abandoned.
III. The “Residential Use Only” sections of the Krumbhaar restrictions are null and void as to Lot 1, Block 5 because that portion of the subdivision plan is not feasible or capable of being preserved as to that particular lot.
IV. The trial court erred in rendering judgment in favor of plaintiffs-appellees in that these particular plaintiffs are not entitled to the extraordinary remedy of injunctive relief. Plaintiffs-appellees themselves have violated the restrictions and do not come to this court with clean hands; furthermore, the enforcement of the restrictions by these plaintiffs was arbitrary and discriminatory in nature, a fact not taken into account by the trial court.

Act 170 of 1977, Regular Session, amended and reenacted Title V of Book II of the Louisiana Civil Code of 1870 to insert articles 775-783 on Building Restrictions. Ar-tide 780 was subsequently amended by Act 310 of 1980, Regular Session. These Civil Code Articles represent a codification of prior Louisiana jurisprudence. Thus the rules of construction, interpretation and enforcement of building restrictions have not changed merely because of their placement in the Civil Code.

ASSIGNMENT OF ERROR NO. 1

Defendants argue that in granting the injunction the trial judge did not apply the applicable law of building restrictions. They reach this conclusion by reading the trial judge’s written reasons for denying a suspensive appeal. The trial judge has not favored us with written reasons for granting the injunction.

Defendants go astray in their interpretation of the trial judge’s reasons for the denial of a suspensive appeal. It was apparent to this court at the time we declined the exercise of our supervisory jurisdiction and refused to issue a stay order that the trial judge was impressed with the fact that defendants personally knew of the restrictions prior to their purchase of the subject property, and that they had been forewarned by at least two of these plaintiffs that the practice of public accounting would be a violation of the restrictions and injunc-tive relief would be sought to prohibit such practice. For those reasons the trial judge denied a suspensive appeal, but we cannot agree that such gives any indication that the trial judge failed to apply the applicable law on the merits.

ASSIGNMENT OF ERROR NO. 2

Defendants-appellants are basically arguing that the number and nature of past and continuing violations of these building restrictions have resulted in an abandonment of these restrictions within the meaning of La.C.C. art. 782, or that at least the “Residential Use Only” restriction has been abandoned.

In East Parker Properties, Inc. v. Pelican Realty Co., 335 So.2d 466 (La.App. 1st Cir. 1976) writ refused 338 So.2d 699 (La. 1976), Judge Ponder as the organ of this court said:

“Generally, the courts will enforce building restrictions imposed upon land according to the intent of the subdividers, provided they not be against public policy and not be abandoned.
“It is not every violation that will lead to abandonment. We must look to the intention of those imposing and those seeking to continue the building restrictions. Insubstantial, technical or infrequent violations, not subversive of the general plan or scheme, are to be given little effect. “In deciding whether or not restrictions have been abandonment we must first decide what the subdividers intended the plan and scheme of the subdivision to be; then we must inquire into each alleged violation to determine whether the intended plan and scheme are disrupted. It is our conclusion that the restrictions in this case taken as a whole evidence an intent to allow only one family per lot. “Whether there has been acquiescence in violations of subdivision restrictions sufficient to defeat enforcement of the restrictions depends upon the circumstances of each case, including particularly the character, materiality and number of the violations and their proximity to the objecting residents. Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960). Generally, where there have been frequent and substantial violations of the restrictions without objection, the restrictions are regarded as having been abandoned. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941). However, for this rule to be applicable, the property owner against whom abandonment is asserted, must have known of the alleged violations or have had a duty to know. Also, there is no abandonment of subdivision restrictions unless violations have been such that there has been a subversion of the original scheme of the subdividers, resulting in a substantial change in the intended nature of the subdivision. Guyton, supra, Marquess v. Bamburg, La.App., 188 So.2d 721, Adair v. Chrysler, La.App., 212 So.2d 552. See also Plauche v. Albert, La.App., 42 So.2d 876. Melrose Civic Association v. Universal Builders, Inc., 289 So.2d 521 (La.App. 1st Cir. 1973), writ refused, La., 293 So.2d 167 (1974).” (Footnotes omitted).

Defendants-appellants contend that violations of the building restrictions have occurred in the areas of minimum sideline and rear line setbacks, business or commercial activities, accessory buildings, commercial vehicles parking in the subdivision, mobile homes as residences, minimum lot sizes, use of used material and metal roofs in construction, fences between the sill and the front lot line, and unkept vacant lots.

SIDELINE AND REAR LINE VIOLATIONS

The building restrictions require that “no residence shall be erected * * * nearer than ten (100 feet of any sideline * * *.” From a close examination of the record we find only two violations of the sideline restriction. The houses owned by Eldon Freeman and Dr. Merrick Dugal, which share a common sideline, are both in violation of the restriction. Both houses are closer than 10 feet to the sideline.

Defendants complain that the house owned by Mr. and Mrs. Norman J. Claverie is within three to five feet of the side lot line. However, the evidence points out the Claveries own two lots, thus their house is more than 10 feet from the sideline which is common with their neighbor.

Plaintiff Tracy Rhodes owns a greenhouse which is conceivably nearer than 10 feet to the rear lot line and in violation of the restrictions. However, the restrictions as to rear property lines states that “no residence, carport, garage or other permitted accessory building shall be located nearer than ten (10') feet to the rear property line.” The restrictions also provide that accessory buildings must be constructed with the same materials that compose the main building.

We are of the opinion that the developers never intended to prohibit a greenhouse from being nearer than 10 feet to the rear property line. We reach this conclusion because only residences, carports, garages or other permitted accessory buildings are mentioned in this particular restriction. A greenhouse is obviously not a residence carport or garage. If it is covered at all it must fall within the general category of accessory building. However, the only allowable accessory building is one built out of the same materials as the main structure. We dare say that a greenhouse would not serve its purpose if it it were constructed out of the same materials as the main structure, i. e. bricks, wood siding, and normal roofing. Thus we conclude greenhouses do not fall within the classification of accessory buildings and therefore are not covered by the restriction.

Of the 24 lots in the subdivision only two are in violation of the sideline or rear line restriction.

COMMERCIAL VEHICLES

The restrictions provide that “the streets of the subdivision are primarily for the benefit of the residents thereof, and no person may use the same for the purpose of parking commercial vehicles or semi-commercial vehicles or old automobiles.” Defendants complain generally of several vehicles with commercial license plates being parked in the subdivision. These vehicles are either owned by residents of the subdivision, yet carry commercial plates, or are owned by the resident’s employer and are for the use of the resident. We do not find that the parking of a vehicle with a commercial license plate violates the intention of this particular restriction.

MOBILE HOME

The defendants also complain that during the construction of the Claveries’ home they parked a recreational vehicle on their property, and conceivably lived in same for a short period of time. It is unclear from the record whether anyone actually resided in this recreational vehicle, but conceding ar-guendo that someone did reside in this recreational vehicle for several months, such would only be a technical violation, but would not be enough to void this particular restriction.

MINIMUM LOT SIZE

Defendants also complain that plaintiff Jerry Schwab purchased a strip of land from a neighboring lot which would cause the neighboring lot to fall below the minimum site size of 10,000 square feet. We find insufficient proof in the record that such lot would fall below 10,000 square feet, but be that as it may, it is not a violation of the building restrictions until someone attempts to construct a dwelling on a site having an area of less than 10,000 square feet.

USED MATERIALS

The building restrictions provide that all residences shall be constructed of new material and that no metal or aluminum type roof of any kind may be used. In the home of Robert L. and Laura Herring Morris, heart pine flooring was used in certain areas, as well as a small copper roof over a bay window. The heart pine flooring was purchased as antique flooring, and we cannot conceive any intention on the part of the developers of prohibiting the use of antique wood flooring in a new structure. The small copper roof was classified by Mrs. Morris as flashing rather than a roof. We venture to say that the developers intended more to prohibit a metal roof on the main roof of the structure rather than a small roof covering a bay window. Thus we find no violation.

UNKEPT LOTS

The restrictions provide that “the developer of Krumbhaar Subdivision shall have the right to cut grass upon any vacant or unimproved lots whenever it deems necessary and the owner thereof shall be assessed a charge of $10.00 for each cutting per lot.” The defendants complain that all of the unimproved lots (11 lots were unimproved) were in unkept condition, and thus amounted to a violation of the building restrictions sufficient enough to void the entire scheme or plan of the building restrictions. Though this particular restriction is part and parcel of the document which contains the building restrictions to Krumbhaar Subdivision, it is more in the nature of a right granted to the developer to cut the grass on vacant lots and charge the owner, rather than a restriction which can be enforced by a fellow land owner in the subdivision. But be that as it may, we do not agree that the failure to cut grass on 11 unimproved lots would void the general scheme or plan for the subdivision.

FENCES

Appellants contend that fences were constructed in violation of the restrictions on property owned by John Saia (Lots 1 and 2 of Block 4) and Tracy Rhodes. The restriction in question provides that “fences shall not be erected between the front lot line and the front sill line of the main building.”

As to the property of Mr. Rhodes, we understand this alleged fence to be nothing more than a boundary marker in the nature of a chain wall some three or four bricks high. Though this low wall does exist between the front lot line and the front sill, this is not a fence as contemplated by the restriction, and thus not a violation.

The two lots owned by Mr. Saia are unimproved. We pretermit any determination of whether a fence enclosing the boundaries of these two lots constitute a violation in as much as the prescriptive period may not have run, Mr. Saia is not a party to these proceedings, and this issue, as such, is not presented to us for determination.

BUSINESS ACTIVITIES

In addition to the above alleged violations of the building restrictions, defendants-appellants also allege certain activities which are violative of the non-business or noncommercial building restrictions.

It is alleged that Eldon Freeman conducts a business from his home. Mr. Freeman is the manager of an oilfield service company. This service company has an office and shop some distance from this subdivision. In his home he has five telephone lines. Two are personal lines and three are business lines. Of the three business lines one is a regular business number, one is an in wats, and the third is a direct line to Rayne, Louisiana, where the company also has a shop. We gather from the record that the same three lines would also be present in the company office as well as in the home of Mr. Freeman’s sister. The business is a family owned business and the sister participates therein.

Mr. Freeman explained that he is on 24 hour call, and when a call comes in at any hour of the day or night from a customer, he must be available to tend to that business. Additionally, company trucks have gone to his home to deliver papers as well as pick up pay checks. We do not find that any of the activities engaged in by Mr. Freeman constitute a business or commercial enterprise in violation of the building restrictions.

Plaintiff Dr. Merrick Dugal is a dentist, and several years ago attempted to depreciate a part of his house on his income tax return because he did his own bookkeeping at his home at night and on the weekends. This too is not the type of business or commercial activity which the developers sought to prohibit. There is other evidence in the record that professional people living in this subdivision receive telephone calls from clients at their homes, as well as taking work home from the office at night. This too does not constitute a violation of the building restrictions. If the fact that an individual who is in business receives a telephone call from a client or a customer at his home constitutes the doing of business in a subdivision, then we would venture to say that no one would be able to live in a subdivision where business or commercial activities are prohibited. It is obvious to this court, as it should have been obvious to the defendants, that this is not the type of activity that was sought to be prohibited.

Mr. Louis Gueniot, a resident and homeowner in the subdivision, is in the supermarket and catering business. He testified that during one Christmas season because of an error in his catering business, certain food items had not been prepared on several occasions, and it was necessary that he and his wife prepare those items in his home kitchen. Though those few occasions might be technical violations of the non-business or commercial activity provision, they are insubstantial and not subversive of the building restriction and will be given little effect. The other plaintiffs testified that they did not know this in-home cooking had taken place.

Taken as a whole, we do not find that any of the alleged violations constitute an abandonment or a waiver of the general scheme or plan as conceived by the developers. Nor do we find those alleged business or commercial violations to be anywhere near sufficient to constitute a waiver or abandonment of that particular restriction.

ASSIGNMENT OF ERROR NO. 3

Defendants-appellants argue that because the subject lot is adjacent to Louisiana Highway 311 and that commercial establishments directly abut the property, the subject lot is unsuitable for residential purposes, and, therefore, the plan of Krumb-haar Subdivision is not feasible or capable of being preserved with respect to that lot, citing La.C.C. art. 775.

It is clear from the record that commercial establishments front Louisiana Highway 311 near and even next to the subject lot. However, it is also clear that a residence is situated on a piece of property fronting Louisiana Highway 311 in close proximity to the subject property. The point is that this is apparently an area of mixed commercial and residential property. The highest and best use of the highway frontage would be for commercial development. However, where such property is burdened with restrictions prohibiting such use, then the highest and best use must be residential.

What defendants-appellants in essence are asking the courts to do is free this lot of the residential restriction because of its proximity to a highway. Appellants cite La.C.C. art. 752 in conjunction with Article 775 for the proposition that if the lot in question has undergone such a change that the restriction can no longer be useful, then the restriction must be voided.

Article 775 speaks of building restrictions and a “general plan.” That article also provides that “the plan must be feasible and capable of being preserved.” The word “plan” in the last sentence of Article 775 refers to the terminology “general plan” as found in that article. The entire general plan must be feasible and capable of being preserved, not merely a small part of the general plan. There are 24 lots in Krumbh-aar Subdivision, and defendants claim that one lot should be released from the general plan because of surrounding commercialization. This is not what Article 775 has reference to. Either the general plan fails or it succeeds, not merely a part thereof.

Additionally, appellants’ argument as to Article 752 has no merit. Article 752 provides:

“If the exercise of the servitude becomes impossible because the things necessary for its exercise have undergone such a change that the servitude can no longer be used, the servitude is not extinguished; it resumes its effect when things are reestablished so that they may again be used unless prescription has accrued.”

Appellants attempt to engraft Article 752 onto the building restriction articles because Article 777 in part provides that the “building restrictions * * * are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.” We find the application of Article 752 is not compatible. Article 752 speaks of a temporary release from a servitude and the reestablishment thereof. However, in the instant case once the subject lot would be released from the building restriction prohibiting business and commercial activities, that restriction could never be re-established. We dare say that this is not what Article 752 had in mind.

ASSIGNMENT OF ERROR NO. 4

The defendants-appellants argue that plaintiffs do not come into court seeking equity with clean hands. The basis of the argument is that several plaintiffs violated the building restrictions in question, and each of the plaintiffs knew or should have known of other violations in the subdivision, but none of the plaintiffs took any action to halt such violations.

As we have noted above, only two of the plaintiffs, Dugal and Freeman are technically in violation of any of the restrictions. The fact that two of the plaintiffs are in violation of one of the restrictions certainly does not restrict the availability of an injunction proceeding to the other plaintiffs. As to the argument that plaintiffs either knew or should have known of the violations, we find no merit. Where a property owner has violated a building restriction, he will not be precluded from enforcing a more important or substantial violation against another property owner. Guyton v. Yancey, supra. We venture to say that as regards a residential subdivision, one of the most important building restrictions is that which restricts the use of the property for residential purposes. A violation of that restriction vis-a-vis the violation of a sideline restriction is certainly more important and substantial.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at defendants-appellants’ costs.

AFFIRMED.

      . The plaintiffs and the property they own are Jerry H. Schwab — Lot 4 and part of Lot 5 of Block 3; Robert L. Morris and Laura Herring Morris — Lot 1 of Block 1; Merrick A. Dugal, Jr. — Lot 3 of Block 3; Norman J. Claverie and Beulah Giroir King Claverie — Lots 1 and 2 of Block 1; and Tracy L. Rhodes — Lot 3 of Block 2.

      . The restrictions in part provide:
      3.All lots of this subdivision shall be used for single family residential purposes.
      ******
      11. There shall be no noxious or offensive trade or other activities carried on or engaged in upon any lots, or shall anything be done thereon which may be or become an annoyance or nuisance to the subdivision; nor shall there be erected, established, maintained, operated or carried on any business or commercial enterprise of any kind whatsoever, private or public.

      . Art. 775. Building restrictions. Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.
      Art. 776. Establishment. Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables.
      Art. 777. Nature and Regulation. Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.
      Art. 778. Affirmative duties. Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. Art. 779. Injunctive relief. Building restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure.
      Art. 780. Termination according to title; agreement of owners. Building restrictions terminate as provided in the act that establishes them. In the absence of such provision, owners representing more than one-half of the land area, excluding streets and their rights-of-way, affected by the restrictions may amend or terminate by agreement, for the whole or a part of the restricted area, building restrictions that have been in effect for at least fifteen years. Art. 781. Termination; liberative prescription. No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.
      Art. 782. Abandonment of plan or of restriction. Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only.
      Art. 783. Matters of interpretation. Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.

      . Schwab v. Kelton, 399 So.2d 624 (La.App. 1st Cir. 1981), writ denied 396 So.2d 944 (1981).

      . The restrictions provide:
      “No residence, carport, garage, or other permitted accessory building shall be located nearer than ten (10') feet to the rear property line. For the purpose of this covenant eves [sic], steps and open porches shall not be considered as part of the building.”

      . The restriction provides:
      “10. No accessory buildings shall be permitted unless the same are constructed of identical materials in the construction of the main structure, are not less than 144 square feet in area and are situated within (10') feet of the rear lot line.”


author: EDWARDS, Judge.

text:
    PELICAN HOMESTEAD AND SAVINGS ASSOCIATION v. Grace WOLCOTT, Wife of/and Charles J. Wolcott. PELICAN HOMESTEAD AND SAVINGS ASSOCIATION v. Grace WOLCOTT, Wife of/and Charles J. Wolcott.
    Nos. 14772, 14773.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Lloyd R. Walters, Slidell, for plaintiff, appellee.
    Thomas H. Gray, Slidell, for defendant, appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

On March 4, 1981, Pelican Homestead filed a petition for a writ of sequestration on defendants’ mobile home. The petition alleged that the Wolcotts had executed a chattel mortgage on the mobile home to secure a promissory note which had become due and payable by defendants’ default in making installment payments. The petition further alleged that a writ of sequestration should issue because during pendency of the suit, it was within the power of defendants to conceal, dispose of, or waste the mobile home. The requested writ of sequestration was granted by the trial court.

Defendant, Grace Wolcott, filed an answer to plaintiff’s petition on March 10, 1981. In her answer, defendant prayed that the writ of sequestration be dissolved. A hearing on defendant’s request to dissolve the writ of sequestration was set for April 27, 1981. On that date, defendant filed an amended answer and supporting brief, seeking to have the writ of sequestration dissolved on the ground that plaintiff’s petition was defective because it did not comply with the requirements of LSA-C. C.P. Arts. 3501 and 3571.

The trial judge refused to dissolve the writ of sequestration on the basis of the pleadings. He ordered that the hearing on the request for dissolution be rescheduled to allow plaintiff the opportunity to present evidence to support the issuance of the writ of sequestration.

Defendant, Grace Wolcott, appealed from this order of the trial court. Pelican Homestead has filed a motion to dismiss Wolcott’s appeal.

In ordering an evidentiary hearing, the trial court relied on LSA-C.C.P. Art. 3506. That article provides that a defendant may obtain dissolution of a writ of sequestration unless the plaintiff proves the grounds upon which the writ was issued. Plaintiff was clearly entitled to an eviden-tiary hearing in order to allow it to meet its statutory burden of proof.

The trial court’s order setting a date for the evidentiary hearing is an interlocutory judgment. LSA-C.C.P. Art. 1841. As such, it is appealable only if it may cause irreparable injury. LSA-C.C.P. Art. 2083. Defendant has failed to make any showing of irreparable injury resulting from the trial court’s ruling. Therefore, this appeal should be dismissed.

In brief, counsel for Pelican Homestead has requested an award for damages and attorney fees for frivolous appeal. This claim is without merit. Plaintiff neither appealed nor filed an answer to defendant’s appeal. It is well-settled that an appellee who has neither appealed nor answered the appeal has no standing to demand changes for frivolous appeal. Morial v. Orleans Parish School Board, 332 So.2d 503 (La.App. 4th Cir. 1976), writ refused 337 So.2d 530; Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973).

For the foregoing reasons, the defendant’s appeal is dismissed at her cost.

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    Rosemary BRUMFIELD v. H. Alva BRUMFIELD, III.
    No. 14866.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Ij. D. Sledge, Michael A. Patterson, Baton Rouge, for plaintiff-appellant Rosemary Brumfield.
    Kenneth Rigby, Shreveport, John Dale Powers, Baton Rouge, for defendant-appel-lee H. Alva Brumfield, III.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

COVINGTON, Judge.

Appellee moves to dismiss the appeal on the ground that the judgment appealed related to a preliminary injunction; and, having been filed more than 15 days after the date of the judgment, was not timely filed. We disagree and deny the motion to dismiss.

Plaintiff-appellant filed a “Petition to Annul Matrimonial Agreement, For Damages and Costs Due to Fraud and Malpractice” in the Nineteenth Judicial District Court. In addition to several other requests for relief, plaintiff sought a temporary restraining order and a subsequent preliminary injunction to prevent the alienation or encumbrance of certain property. Defendant-appellee filed a motion to dissolve the temporary restraining order, asserting that the district court lacked jurisdiction which, under LSA-R.S. 13:1401(7), belonged to the Family Court for the Parish of East Baton Rouge, that no irreparable injury was shown and that the order affected property other than community property. The defendant also filed declinatory, dilatory and peremptory exceptions. On June 19, 1981, the trial court signed two judgments. The first judgment maintained defendant’s exception to its jurisdiction and the second judgment maintained the peremptory exception of no cause of action. The plaintiff took a devolutive appeal as to both judgments on August 17, 1981.

This is not an appeal from a judgment relating to preliminary injunction as appel-lee would have this court believe. This is an appeal from judgments maintaining peremptory exceptions to the jurisdiction and of no cause of action. Such appeals need only be perfected within the 60 day period of LSA-C.C.P. art. 2087, not the 15 day period of LSA-C.C.P. art. 3612. The instant appeal was taken timely.

Accordingly, the motion to dismiss the appeal is denied at appellee’s costs; all other costs to await final disposition of the case.

MOTION DENIED.


author: ELLIS, Judge.

text:
    Evans THIBODEAUX v. HOOD ENTERPRISES, INC.
    No. 14873.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Randall M. Alfred, of Marcel & Alfred, Houma, for plaintiff-appellant Evans Thi-bodeaux.
    James E. Kuhn, of Fayard, Morrison & Kuhn, Denham Springs, David L. Landry, Thibodaux, for defendant-appellee Hood Enterprises, Inc.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ON MOTION TO DISMISS

ELLIS, Judge.

This is an appeal from a judgment which sustained defendant’s exception of improper venue and dismissed plaintiff’s suit without prejudice. Defendant has moved to dismiss plaintiff’s appeal on the ground that the judgment appealed from is not a final judgment and therefore not appealable.

The motion is without merit. It is settled law that a judgment which dismisses a suit without prejudice is a final appealable judgment. People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Pasquier, Batson & Co. v. Ewing, 367 So.2d 28 (La.App. 2nd Cir. 1978).

The motion is therefore denied at plaintiff’s cost.

MOTION DENIED.


author: WATKINS, Judge.

text:
    Elton CORLEY, d/b/a E & R Auto Repair v. Lawrence J. EARL, Sr.
    No. 14877.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Guy Holdridge, Crawford, Goldsmith & Holdridge, Gonzales, for plaintiff and appel-lee.
    Douglas R. Cyrex, Gonzales, for defendant and appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

We issued ex proprio motu a rule for Elton Corley, d/b/a E & R Auto Repair, appellant, to show cause why his appeal should not be dismissed for failure to perfect an appeal timely.

We have reviewed the record again and find that no notice of the final judgment appealed from was ever mailed to counsel for either party. Hence, the delay to perfect an appeal never began to run.

The appeal having been timely, we set aside and vacate our rule to show cause, and permit the appeal to stand.

RULE VACATED.


author: KLEES, Judge.

text:
    UNITED BENEFIT LIFE INSURANCE COMPANY, v. Mae Pearl PAUL, wife of/and Franklin D. Paul.
    No. 12193.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1981.

      Bradford R. Roberts, II, New Orleans, for plaintiff-appellant.
    James J. Morrison, Jr., New Orleans, for plaintiff-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Plaintiff appeals from a judgment dismissing their suit seeking a declaratory judgment on whether a policy of insurance issued to defendant should be declared null and void.

The issue presented to this court was did the trial court err in finding that defendant did not make fraudulent or misleading statements in his application for insurance, and if so, would the company had issued the policy if they had known the statements were false or misleading.

The trial court found that the plaintiffs failed to meet the burden of proof and dismissed the suit, we agree.

In his application for life insurance defendant was asked the following question:

“Have you ever been treated for or ever had any known indication of chest pain or any type of chest discomfort or distress, rapid or irregular heart action, high blood pressure, rheumatic fever, heart murmer, heart attack, or disorders of the heart or blood vessels.”

He answered no to this question. At trial it was brought out that defendant’s treating physician Dr. Epps elicited that defendant did make a complaint to him regarding chest pains. Defendant was given various medical tests, including an EKG interpreted by someone else as “definite evidence of myocardial disease”, but Dr. Epps concluded there was no heart condition, that defendant was overweight and should lose weight.

Plaintiffs also brought out at trial that defendant was arrested by the New Orleans Police Department and stated to them that he had a heart condition. The trial court after considerations rejected this argument by stating that arrested subjects often make this statement to avoid possible rough treatment by the police.

The basic law covering this matter stems from the Louisiana Insurance Code La.R.S. 22:619.

§ 619. Warranties and misrepresentation in negotiation; application.
A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

Martin v. Security Industrial Insurance Co., 367 So.2d 420 (La.App. 2nd Cir. 1979) Writ Denied 369 So.2d 1364 (1979) summarized the jurisprudence interpreting R.S. 22:619 as follows:

“In interpreting La.R.S. 22:619(B), the Louisiana Supreme Court has held that the disjunctive ‘or’ is to be treated as the conjunctive ‘and’ and to avoid liability on the grounds of misrepresentation in the application, the insurer must meet a three-tiered burden. See Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957). First, it must be shown that the statements were false. Second, the insurer must establish that the representations were made with an actual intent to deceive. Third, the insurance company must establish that these misstatements materially affected the risk assumed by the insurer. ‘Material’ means that the statement must have been or the nature that, had it been true, the insurer either would not have contracted or would have contracted only at a higher premium rate. See La.C.C.Art. 1847(2); Goff v. Mutual Life Insurance Co., 131 La. 98, 59 So. 28 (1912); Trahan v. Security Life and Trust Company, 199 So.2d 617 (La.App. 3rd Cir. 1967), see also comment 22 La.L.Rev. 190, and Couch, Insurance 2d § 35:45 (1961). Therefore for an insurer to. avoid liability on the grounds of misrepresentation in a life insurance application, it must establish that false statements were made with an actual intent to deceive and that the facts were material. Gay v. United Benefit Life Insurance Co., supra; Brown v. National Old Life Ins. Co., 345 So.2d 1023 (La.App. 2nd Cir. 1977); Cloud v. Security General Life Ins. Co., 352 So.2d 406 (La.App. 3rd Cir. 1977); Watson v. Life Insurance Company of La., 355 So.2d 518 (La.App. 1st Cir. 1976); Jordan v. Life General Security Insurance Company, 333 So.2d 732 (La.App. 4th Cir. 1976).”

Here the plaintiffs were faced with the burden of proving that false statements were made to them with the actual intent to deceive and that the facts were material.

The trial court supported by the medical testimony obviously felt that defendant did not have a heart condition and did not intend to deceive the plaintiffs in his application.

We see no abuse of discretion by the trial court and accordingly affirm.

AFFIRMED.


author: SAMUEL, Judge.

text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Frankie Lee BUTLER.
    No. 12748.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.

      William D. O’Regan, III, La Place, for relator.
    Sylvia E. Taylor, Reserve, for respondent.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Relator, the Housing Authority of St. John the Baptist Parish, instituted eviction proceedings in a justice of the peace court against respondent, Frankie Lee Butler, a tenant in a low income housing project owned and operated by relator.

Prior to a hearing in that court, respondent filed a petition for injunctive and declaratory relief in the Twenty-ninth Judicial District Court for the Parish of St. John the Baptist. Alleging various violations of both state laws and federal laws and regulations, the petition sought a mandatory injunction and a stay of the proceedings in the justice of the peace court. However, before the petition was heard in the district court a judgment condemning respondent to vacate the premises was rendered and signed by the judge of the justice of the peace court.

On August 21, 1981, approximately twenty-two days after the eviction judgment had been rendered and signed by the justice of the peace, the district court heard and decided respondent’s petition. The district court judge did not grant injunctive or declaratory relief as prayed. Instead, he treated the petition as a “timely filed appeal from the judgment of the Justice of the Peace Court rendered on July 29, 1981” and granted a suspensive appeal without bond.

Relator then applied to this court for writs and respondent has filed an opposition to that application. As the above facts are undisputed, there is no need to issue certio-rari.

Relator makes several contentions in this court. Although some other contentions appear to have merit, as we agree with the first contention, and as that conclusion disposes of the matter, we consider only the first contention: That an appeal can be granted only by the court which rendered the judgment appealed from.

The statutory law on this question is clear. LSA-C.C.P. Art. 2121 provides:

“An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” LSA-C.C.P. Art. 2121. (Emphasis ours).

It is also clear that the appellate procedure provided in Article 2121 is applicable to justice of the peace courts. And our settled jurisprudence is that an order of appeal must be obtained from the court which rendered the judgment.

In this case only the justice of the peace court which rendered the eviction judgment had the authority to grant an appeal from that judgment.

Accordingly, the granting of an appeal in this matter by the Twenty-Ninth Judicial District Court is annulled and set aside.

GRANT OF APPEAL ANNULLED AND SET ASIDE.

      . LSA-C.C.P. Art. 5004.

      . McKnight v. Denouvion, La., 22 La.Ann. 373; Willie v. Otasco, La.App., 347 So.2d 1215; Davis v. Funderburk, La.App., 274 So.2d 781; Thomas v. Reliance Insurance Company, La. App., 215 So.2d 515.

      .We note the situation here is quite different from the issuance of mandamus by a higher court ordering a lower court to grant an appeal.


text:
    Zigmund J. SOBOLEWSKI, et al. v. Leroy BROWN, et ux.
    No. 12073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiffs-appellants.
    Don C. Gardner, Metairie, for defendants-appellees.
    Before SAMUEL, BOUTALL and KLIE-BERT, JJ.
   SAMUEL, Judge.

This is an appeal from a judgment denying a writ of injunction. Plaintiffs are twelve property owners in Woodlake Estates Subdivision in the City of Kenner. The two defendants, husband and wife, are owners of a lot (20 of Sq. B) located at the front entrance of the subdivision whose building plans did not conform to recorded subdivision restrictions.

These are established facts: The subdivision consists of 438 residential lots, of which 232 remained to be sold at the time of trial. One hundred nineteen lots are irregular in shape. The restrictions, which affect all of the lots, were executed by the developer on May 22, 1973 and provide in pertinent part that no structure shall be placed closer than 25 feet to the front property line, must have side yards of 10 feet each and a back yard of 30 feet. The restrictions further provide that no exceptions to the minimum yard requirement could be granted without approval of the developer and then only granted on lots irregular in shape.

Plaintiffs purchased their irregular shaped lot in 1977 but they did not make an effort to build until 1980. They were aware of the restrictions but felt they could seek and obtain a variance. They were familiar with the fact that many variances had been granted on irregular shaped lots. Unfortunately, by the time defendants were ready to build, the developer was defunct.

Prior to ceasing to operate, the developer had provided that variances could be obtained by authority of the governing authority of the City of Kenner or its successors. The City of Kenner, understandably unwilling to accept this unilateral duty, adopted a resolution providing it would not address itself to the issue of variances pertaining to restrictive covenants.

This left defendants with an irregular shaped lot, plans for an expensive home which would not completely comply with the restrictive covenants, and nowhere to go to seek a variance.

Although it has no authority over variances, the subdivision has an active civic association with its own deed restrictions committee. In an effort to satisfy other property owners, defendants discussed the matter with, and submitted their plans to, the president of the association. Following discussion of the plans at a meeting, the civic association made suggestions to defendants as to how the plans could be made acceptable. Defendants did make some changes, but disapproved of other suggestions. Then they secured a building permit from the City of Kenner and poured the slab.

If built as contemplated by defendants, the residence would violate the subdivision restrictions in that it would be only 20 feet from the front property line (as opposed to the 25 feet required by the restrictions), and in one area, only 5 feet from the side yard set back (as opposed to the 10 feet required by the restrictions).

At this point plaintiffs filed this suit for injunctive relief. The petition prays that the defendants, and all those acting for them, be enjoined and prohibited “. .. from building or erecting upon Lot 20 of Square B of Woodlake Estates Subdivision any dwelling place or other structure in such fashion as to violate the building restrictions . . . . ” of the subdivision. The petition also prays for judgment against the defendants decreeing that “. . . the above described acts [the quotation contained in the preceding sentence] to be injurious to and an impairment of the property rights of, the plaintiffs . . . . ” The trial court refused to grant the injunction, and plaintiffs then filed this devolutive appeal.

Although the judgment appealed from simply denies “. . . plaintiffs’ prayer for a permanent injunction enjoining the defendants from building or erecting upon Lot 20, Square B of Woodlake Subdivision . . . . ” the trial judge’s reasons for judgment might be interpreted as implying there were sufficient violations of the restrictions to constitute an abandonment thereof, we do not find such to be the ease. Our review of the record satisfies us that, although there were some proven violations and numerous granted variances of the restrictions, the number of violations so proved are insufficient to constitute abandonment of the restrictions. Accordingly, we hold the restrictions are still in full force and effect.

Beyond this, we do not reach the merits. In oral argument before this court, the litigants have conceded that while this appeal was pending defendants have completed construction of the house in accordance with their plans and in violation of the recorded subdivision restrictions as to front and side yards to the extent above mentioned.

Our jurisprudence has firmly established that when an appeal is taken from an order denying injunctive relief, and the act sought to be enjoined is accomplished pending appeal, the appeal will be dismissed as moot. The rationale for this rule was stated by the Supreme Court in Pettingill v. Hills, Inc., as follows:

“It is the function of appellate courts to render judgments that can be made effective and not to give opinions on moot questions or abstract propositions from which no practical results can follow.”

Here, plaintiffs did not seek damages of any kind. Insofar as injunctive relief is concerned, the petition seeks only to enjoin defendants from building or erecting a dwelling or other structure on their lot in violation of the building restrictions. Since the building is now constructed, there is nothing for this court to enjoin; in this appeal it is impossible for us to undo what already has been done; and only abstract propositions, from which no practical result can follow, are left for our decision. It is against the long established judicial policy of this state to render such advisory opinions. Accordingly, on our own motion, we dismiss plaintiffs’ appeal as moot.

For the reasons assigned, the judgment appealed from is amended only to the extent of making it clear that the restrictions in suit remain in full force and effect. In all other respects, this appeal is dismissed without prejudice. Appellants are to pay all costs.

AMENDED AND APPEAL DISMISSED.

      . Mirabeau Food Store v. Amalgamated Meat Cutters, 230 La. 921, 89 So.2d 392; Freret Civic Ass’n. v. Orleans Parish School Board, 223 La. 407, 65 So.2d 893; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660; Sierra Club v. Louisiana Dept. of Wildlife, La.App., 365 So.2d 880; Cox v. Watts, La.App., 329 So.2d 917; Brown v. Town of Lake Providence, La.App., 200 So.2d 764; Blanchard v. City of Shreveport, La.App., 90 So.2d 556; Theus v. City of Minden, La.App., 127 So. 24. For many other cases to the same effect, see 2B La.Dig., Key No. 781.

      . Note 1, at p. 662 of So.2d.


author: GULOTTA, Judge.

text:
    Ruth B. ROIG, Individually, and on Behalf of Her Minor Son, Davie Russell v. Charlene BROOKS, Charles T. Brooks, and Kemper Insurance Company.
    No. 12096.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Margaret A. LeBlanc, New Orleans, for plaintiff-appellee.

      Hammett, Leake & Hammett, Herbert B. Bowers, III, New Orleans, for defendants- 1 appellants.
    GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

This litigation arises out of an automobile accident in the private parking lot area of Schwegmann’s Super Market on Veterans Highway in Jefferson Parish. When exiting the parking lot area in a northerly direction on a one-lane roadway between angular parked vehicles, Ruth Roig’s automobile was broadsided by a car, driven by Charlene Brooks, which was traveling in a westerly direction in a two-lane roadway in the parking lot area. Plaintiff’s lane of traffic was burdened with the word “Stop” painted on the cement at the intersection with the two-lane roadway, indicating the right-of-way in favor of traffic traveling on the two-lane roadway.

From a judgment in favor of plaintiff individually and on behalf of her twelve-year-old, a passenger in her vehicle, defendants appeal. Liability is in issue; quantum is not.

It is defendants’ contention that the trial judge erred in finding negligence on the part of Charlene Brooks and in exonerating Ruth Roig from negligence. According to defendants, despite the occurrence of the accident on private property, the applicable law is the Highway Regulatory Act, R.S. 32:1 et seq., which provides, in pertinent part:

“§ 123. Stop signs and yield signs.
A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.
C....”

Defendants further claim that plaintiff was traveling in the wrong direction in the one-lane traffic roadway against the flow of traffic, failed to obey the stop sign painted on the cement, and came into the intersection at a speed of approximately 25 to 30 miles per hour.

We reject these contentions. Accordingly, we affirm.

In Paul v. Petitfils & Williams, Inc., 174 So.2d 144 (La.App. 4th Cir. 1965), writ refused, 247 La. 1038, 175 So.2d 647, (1965), we stated that none of the provisions of the Highway Regulatory Act is applicable to private premises. Like our case, the Paul case involved a two-vehicle collision in a Schwegmann parking lot. See also, Blanco v. Travelers Ins. Co., 350 So.2d 1252 (La.App. 4th Cir. 1977); Chaney v. Brumfield, 333 So.2d 256 (La.App. 1st Cir. 1976); Gatheright v. State Farm Mut. Auto. Ins. Co., 352 So.2d 428 (La.App. 3rd Cir. 1977).

Assuming, however, that the Highway Regulatory Act is applicable to private premises, the trial judge was confronted with contradictory versions surrounding the occurrence of the accident. Plaintiff and her passenger son testified that she was driving in the proper direction in the one-lane traffic roadway in the direction of Veterans Highway, that she stopped in obedience to the painted stop sign, and that she looked both ways, saw nothing coming, and proceeded slowly across the intersection when her automobile was struck by the Brooks vehicle. Neither driver saw the other automobile until immediately prior to impact.

Defendants’ version of the accident — as testified to by Charlene Brooks, her husband Charles and a third occupant of the Brooks’ vehicle — was that defendants’ automobile had left the Lakeside Cinema Thea-tre, had come on to the Schwegmann’s parking lot, and was crossing the lot on the two-lane traffic roadway to Division St., the first street on the westside of the Schwegmann’s parking area, when plaintiff’s vehicle “came flying in front of” the Brooks automobile. Charles Brooks acknowledged that the speed of his automobile was approximately 25 miles per hour and Charlene Brooks testified that she was traveling at a speed between 20 and 25 miles per hour.

A deputy sheriff who investigated the accident scene also testified that the Roig vehicle was going in the wrong direction. His testimony and report were based primarily on debris at the scene, however, and the effect of his conclusion as to direction was minimized by Charles Brooks’ testimony that the Roig car spun around approximately one-and-one-half times after impact.

Although no reasons for judgment were assigned by the trial judge, it is clear that he accepted plaintiff’s version of the accident and rejected defendants’. It is clear also that the trial judge further concluded that the sole and proximate cause of the accident was the excessive rate of speed of the Brooks automobile through a crowded parking lot area where automobile move in different directions with drivers concentrating on locating parking spaces rather than on approaching automobiles. We cannot say, as we consider the testimony in this case, that the trial judge erred in his factual or legal conclusions. Had the driver of the Brooks automobile not used the Schwegmann’s parking area as a roadway to traverse from one street to another at a dangerous speed of approximately 25 miles per hour, this accident would not have occurred. Finding no error in the judgment of the trial court, we affirm.

AFFIRMED.


text:
    Carl WILKERSON v. Dora INDOVINA, His Wife.
    No. 12116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Jesse S. Guillot, New Orleans, for plaintiff-appellee.
    Fernand F. Willoz, III, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Dora Indovina, a divorced wife, appeals from a judgment dismissing her rule for past-due alimony and child support filed against he ex-husband, Carl Wilkerson. We reverse and remand the matter to the trial court for further proceedings.

The March 1, 1965 divorce decree provided that Carl was to pay $35.00 per week alimony and child support for one child, Donna Lynn Wilkerson born on March 3, 1960. From November, 1972 until November, 1977, Carl was prosecuted in the Juvenile Court for the Parish of Orleans at various times for neglecting to provide support for Donna. On November 10,1977, the judge of the Juvenile Court, after granting credits “considering the fact that the dependent child ... is now eighteen yeas of age and married”, ordered Carl to pay $332.50 in arrearage, plus costs. He then dismissed the charge.

On January 23,1980, Dora filed a petition for contempt and for executory judgment for past-due alimony in the Civil District Court, alleging that Carl had failed to pay $35.00 per week alimony and child support since March 3, 1978. The matter was tried on a stipulation by counsel that Carl had not made any payment to Dora after the child, Donna, had reached majority. It was further stipulated that Carl had left the juvenile court with the understanding that he did not have to pay any more money to Dora. The trial judge thereafter dismissed Dora’s rule for arrearage on the ground that “. .. the matter has been judicially determined heretofore by the juvenile court. . ,"

On appeal, Dora contends the trial judge erred in relying on a juvenile court judgment in non-support case to annul or vacate the original judgment of the district court awarding Dora $35.00 per week for alimony and child support en globo. Dora further argues that even though the child reached majority on March 3, 1978, Carl could not unilaterally stop payment since the original judgment did not spell out precisely how much was granted for alimony and how much for child support and that his only recourse was to file a motion to reduce. Accordingly, Dora contends the judgment appealed from should be reversed and an executory judgment rendered by this court for the full amount of his arrearages from March 3, 1978 through the present at the rate of $35.00 per week.

Although we find merit to Dora’s argument that the juvenile court’s dismissal of the case did not constitute a full determination of the rule before the district court, we decline toward support payments from the date Donna reached majority until the present.

When Donna reached the age of eighteen, Carl no longer owed her a legal duty of support. Because the award of $35.00 per week was for both alimony and child support, however, he could not unilaterally discontinue making the entire payment to Dora when Donna reached majority. Dora is therefore entitled to a part of the $35.00 weekly payment in alimony. Accordingly, it becomes necessary to ascertain the amount owed in accumulated alimony unpaid by Carl. Once that proportional amount owed to Dora as alimony is determined, the arrearage can be assessed to the present. Carl cannot be held liable, however, for any portion of the award that was attributable to Donna’s support.

In so holding, we are aware of the prevailing doctrine that a father is not entitled, without seeking court modification of a judgment, to reduce child support payments on a pro rata basis where there is an en globo award for child support for more than one child and where one of the children reaches majority. See Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2nd Cir. 1978); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir. 1980); Bordelon v. Bordelon, 380 So.2d 110 (La.App. 1st Cir. 1979). Nonetheless, those cases are distinguishable from the instant case since Donna is an only child and no en globo award for support of more than one child is involved. No prejudice to other children is involved in our case and Dora’s right to alimony can adequately be protected by the trial court’s determination on remand.

Accordingly, the judgment of the trial court is reversed and set aside. The matter is now remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

      . As pointed out in Collette v. Olivier, 309 So.2d 894 (La.App. 3rd Cir. 1975), application denied, 313 So.2d 827 (La.1975), cited by Dora, there is no concurrent jurisdiction between a criminal court acting on a charge against a father for non-support of his children and a civil district court in a proceeding for divorce. Thus, in Collette it was held that an order suspending payments by a father during the course of criminal proceedings on a complaint of non-support did not supersede or vacate a civil judgment awarding child support. Similarly, in our case, the judgment of juvenile court dismissing the case against Carl for nonsupport and instructing him that no further payment was necessary did not have the effect of relieving him from payment of the entire $35.00 per week en globo award for alimony and child support rendered by the civil district court. The trial judge erred, therefore, in holding that the entire matter had been determined by the juvenile court’s judgment.


text:
    Christine SCHEXNAYDER v. COLONIAL PENN INSURANCE COMPANY, Emile Clade, Donna Janelle Pete, and the Hartford Insurance Company.
    No. 12120.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Kambur & Sutherland, Preston G. Sutherland, New Orleans, for plaintiff-appellant.
    Paul P. Rutledge, Metairie, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a summary judgment which dismissed her damage suit directed against her employer’s liability insurer for injuries sustained in an automobile accident. At the time of the accident, Christine Schexnayder was a guest passenger in a vehicle owned by her employer, The Board of Commissioners of the Port of New Orleans, and driven by a co-worker. The basis of the liability insurer’s motion for summary judgment in this tort suit is that plaintiff’s exclusive remedy was in worker’s compensation.

In support of its motion, the defendant insurer filed affidavits of plaintiff’s coworkers who averred that Christine Schex-nayder was an employee of the Board of Commissioners and was on a mission for her employer at the time of the accident. According to the affidavits, plaintiff and her co-workers were in the process of delivering supplies to their employer’s yard when the accident occurred. In addition to the affidavits, the trial judge had before him an earlier court-approved worker’s compensation settlement between plaintiff and her employer. In the joint petition for approval of the compensation settlement, plaintiff alleged that she had sustained physical injury as a result of an accident “that arose out of and in the course and scope” of her employment.

In opposition to the motion for summary judgment, plaintiff contended she was not in the course and scope of her employment at the time of the accident since she was on her lunch break and was not on any mission for her employer. In support of this position, plaintiff asserted in an affidavit that while on her one-half hour lunch break her co-employee had received a call on his radio phone to come to another address for his employer. According to plaintiff, she told her co-worker that she was on her lunch break, but she was told to come anyway. While on their way to the specified address, plaintiff was injured in the automobile accident. Whether or not the injury arose out of or in the course of the employment, according to plaintiff, is a disputed question of fact.

In well-written reasons for granting summary judgment, which we adopt as our own, the trial judge stated:

“This plaintiff was an employee of the Board of Commissioners, Port of New Orleans. The Board owned an automobile in which she was riding as a passenger when she was injured. . . .
The plaintiff says she was on her lunch hour when injured, and hence not within the course and scope of her employment. The defendant says plaintiff was on lunch, that the employer knew this, but nevertheless directed her to go in the car on a mission for the employer. She went, and therefore was within the course and scope of her employment, on a mission for her employer when injured. Therefore, her exclusive remedy is in workmen’s compensation. There were three people in the automobile at the time: Freddie Lathan, driver, and two passengers, Henry Diggs and the plaintiff. Diggs and Lathan both state in their affidavits that they were coming from the Claiborne Avenue storehouse of their employer, and going to their employer’s yard on Jourdan Road to deliver supplies....
In this case, the plaintiff in her affidavit admits that she worked for the Board and that though on her lunch break, she was told to come to the Jourdan Yard anyway, with Lathan, and she went. She therefore was admittedly on a mission for her employer, and within the course and scope of her employment.
Further, in this same court, Case No. 79-16361, on October 81, 1979, this same plaintiff put through a workmen’s compensation settlement with her employer and its insurer, certifying that she had a legitimate workmen’s compensation claim. Her joint petition in said case, states:
‘Employee claims that on or about July 2, 1979, while working for employer in Orleans Parish, Louisiana, she sustained physical injury as a result of an accident that arose out of and in the course and scope of her said employment.’
As a matter of law, the plaintiff’s exclusive remedy is in workmen’s compensation, a remedy which she has fully availed herself of, along with this court’s prior approval. She cannot by law maintain this tort action against her employer and its insurer for that same accident, and for those same injuries.”

Considering the supporting and opposing affidavits and the record of the worker’s compensation settlement, it is clear that plaintiff’s accident arose out of and in the course of her employment. Plaintiff’s remedy is exclusively in worker’s compensation.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . The driver and insurer of the other automobile involved in the accident were also named as defendants in plaintiff’s damage suit. Their liability is not before us on appeal.