author: CUTRER, Judge.

text:
    Vera BUCKBEE, INDIVIDUALLY AND AS the ADMINISTRATRIX OF the SUCCESSION OF William Buckbee, and on Behalf of the Minor, Larry Dean BUCKBEE, Plaintiff-Appellant, v. AWECO, INC., et al., Defendants-Appellees.
    No. 82-113.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.
    Rehearing Denied Sept. 8, 1982.

      Baggett, McCall, Singleton & Ranier, Drew Ranier, Lake Charles, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanchey, Swift & Spears, Bret L. Barham, Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Meredith T. Holt, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a tort suit by the survivors of William Buckbee arising out of a fatal job related accident.

On January 15, 1980, decedent, William Buckbee, and Mr. Roosevelt Vincent, employees at Lake Charles Refining Company, began to remove a plug from a coil on a used crude petroleum heater. The heater was not in use but had been washed prior to this operation. The removal of the plug was preparatory to an inspection of the heater coil. The inspection was to determine whether the coil was free from blockages and if the heater could be put into operation in the refining process. The plugs, due to their exposure to extreme heats in the refining process over long periods of time, often became frozen into place. To remove them required the use of a cold chisel (wedge) or the application of heat; however, the first plug had to be removed “cold” (no heat used) due to the possible existence of flammable materials in the coil.

Buckbee, an experienced man in the refining business, was the maintenance foreman at Lake Charles Refining Company. From all accounts, Buckbee apparently applied heat to remove the first plug from the heater coil. When the plug was removed an explosion and/or flare-up of flammable materials ensued. Both Buckbee and Vincent were burned. Buckbee suffered severe burns from which he died approximately one month later.

Vera Buckbee, surviving spouse, sued in tort for the death of her husband, alleging the defective nature of the heating unit, the failure of the seller and manufacturer to give adequate warnings concerning the potential dangers of the heater and the intentional torts of decedent’s employers.

Various defendants to this suit were named, among which are: AWECO, Inc.; CKB Corporation; C & B Corporation, a/k/a CB Corporation; Kennedy International; C & H Refining Company of Lusk, Wyoming; Lake Charles Refining Company of Lusk, Wyoming; United Gas Pipeline Corporation, Inc.; Jerry R. Watt Company; Travelers Insurance Company; Plant Services, Inc.; the Alcorn Company; Lake Charles Refining Company; Joseph P. Chamberlain and Bob White.

Various exceptions and motions were filed by the defendants. The trial court sustained Jerry R. Watt Company’s exception of lack of jurisdiction, dismissing it from the suit. The trial court granted Travelers Insurance Company’s motion for summary judgment as it was the insurer of Jerry R. Watt Company. The trial court granted summary judgment in favor of Lake Charles Refining Company, AWECO, Inc., Kennedy International, C & H Refining Company of Lusk, Wyoming, Joseph P. Chamberlain and Bob White, dismissing the suit against these defendants.

Plaintiff appealed as follows:

“1) Granting of an exception of lack of jurisdiction of the person over Jerry S. (sic) Watt Company;
“2) Granting of the motion for summary judgment to the defendants Bob White,[ ] AWECO, Inc., CKB Corpbra tion [] and Joseph P. Chamberlain on the grounds that LSA-R.S. 23:1032 excludes these defendant joint venturers from liability to employees of the joint venture;
“3) Granting a motion for summary judgment in favor of Joseph P. Chamberlain holding that his actions were not intentional actions within the meaning of LSA R.S. 23:1032.”

The assignments of error on appeal are as follow: "

(1) Whether the court erred in granting the exception of lack of personal jurisdiction over the defendant, Jerry R. Watt Company;

(2) Whether the court erred in granting the motion for summary judgment barring plaintiff’s action against joint venturers on the basis of the Louisiana Workmen’s Compensation Statute, LSA-R.S. 23:1032; and

(3) Whether the court erred in granting the motion for summary judgment holding that Joseph P. Chamberlain was not acting intentionally within the meaning of LSA-R.S. 23:1032.

JURISDICTION: JERRY R. WATT COMPANY

On appeal plaintiff argues that the trial court erroneously granted defendant’s, Jerry R. Watt Company’s, declinatory exception of lack of jurisdiction. The trial court held that there were not sufficient minimum contacts between the defendant and the forum to activate its jurisdiction based upon the Louisiana Long Arm Statute, LSA-R.S. 13:3201 et seq. We disagree.

LSA-R.S. 13:3201 provides, in pertinent part, as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's:
(a)transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state; * * *?

In determining whether the provisions of the long arm statute apply to the case sub judice, our Supreme Court, in Adcock v. Surety Research & Inv. Corp., 344 So.2d 969, 972 (La.1977), stated:

“The issue of the applicability of La. R.S. 13:3201 is basically a question of fact, the resolution of which will vary according to the circumstances of each case. Because the contacts which each of the defendants has with the forum differ, the issue as to each defendant must be dealt with separately.”

This court has recently passed upon the applicability and scope of the long arm statute in Heinberg v. Poole, 413 So.2d 271, 273 (La.App. 3rd Cir. 1982), in which we quoted from our earlier decision of Soileau v. Evangeline Farmer’s Co-op, 386 So.2d 179, 182 (La.App. 3rd Cir. 1980), as follows:

“ ‘It is well settled that the legislative intent in enacting this statute was to extend personal jurisdiction of Louisiana Courts over non-residents to the full limits of due process, i.e., to any non-resident who has “minimum contacts” with this state. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973), and Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir. 1968). This jurisprudence requires a liberal interpretation of LSA-R.S. 13:3201 in favor of finding jurisdiction. Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977); Latham v. Ryan, 373 So.2d 242 (La.App. 3rd Cir. 1979).
“ ‘The findings of jurisdiction over nonresidents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and “traditional notions of fair play and substantial justice” as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973).”’

See also, Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir. 1968).

Jerry R. Watt Company is engaged in the business of buying and selling used refining equipment. The company’s home base is Oklahoma. A majority of its business is done in Texas but a portion is performed in other states including Louisiana.

In this case Jerry R. Watt Company had purchased the heater in question from United Gas Pipeline Company, Inc., which had closed its plant in Carthage, Texas. Joseph Chamberlain, Manager of Lake Charles Refining Company, negotiated a sale of certain equipment, including the heater, with Jerry R. Watt Company., These negotiations began in March 1978. The sale was for cash and Lake Charles Refining Company was to furnish the transportation of the equipment from Carthage, Texas, to its plant in Lake Charles, Louisiana.

On May 3, 1978, Lake Charles Refining Company issued a purchase order to Jerry R. Watt Company for the purchase of. the heater. This order reflects that the heater was to be shipped to Lake Charles Refining Company in Lake Charles, Louisiana.

Bryan Watt, Vice-President of Jerry R. Watt Company, testified that sales in Louisiana over the past five years accounted for five percent of that company’s business. The gross sales over this five year period to customers in Louisiana amounted to $214,-000.00.

Bryan Watt also testified that he advertises in national oil publications which are distributed in Louisiana. Such publications are the Oil and Gas Journal and the Chemical Engineering Magazine.

Applying the cited authorities to the facts herein, we hold that there was sufficient minimum contacts between Jerry R. Watt Company and the forum to maintain jurisdiction pursuant to the Louisiana Long Arm Statute; LSA-R.S. 13:3201 et seq. The trial court erred in sustaining the exception of lack of jurisdiction. . The judgment of the trial court, in this respect, will be reversed and remanded.

JOINT VENTURES: IMMUNITY UNDER LSA-R.S. 23:1032

We must also determine whether individual members of joint ventures may claim the exclusive remedy as provided under LSA-R.S. 23:1032. Partners and partnerships are granted immunity from tort suit under this provision; however, no mention of a joint venture or its members is made.

This court defined the general principles upon which a partnership is based in Martinez v. Posner, Martinez and Padgett, 385 So.2d 525, 528 (La.App. 3rd Cir. 1980), writs den., 393 So.2d 727 (La.1980), to be:

“In a partnership, the relationship (1) is founded on the intent of the members to be partners, that is, their consent thereto, LSA-C.C. art. 2805, (2) is founded on a contract between two or more persons for a pooling of ‘property, credit, skill or industry’ for ‘the mutual participation in the profits which may accrue’ therefrom, LSA-C.C. art. 2801 and 2809 and share in the losses and expenses, LSA-C.C. art. 2818. In the absence of an agreement to the contrary, each partner may act for the partnership and bind the partnership to others. LSA-C.C. art. 2870.[ ]..”

A joint venture has been defined in Westernberger v. State, Department of Education, 333 So.2d 264, 270 (La.App. 1st Cir. 1976, which stated:

“A joint venture is a special combination of two or more persons who engage in a specific venture for their joint profit or gain, without an actual partnership or corporate designation. Hayes v. Muller, 245 La. 356, 158 So.2d 191. It has been expressly held that a joint venture cannot exist where the business or enterprise is organized and operated in corporate form. Ault & Wiborg Co. of Canada, Ltd. v. Carson Carbon Co., 181 La. 681, 160 So. 298. Moreover, to constitute a joint venture, each party must have equal right to direct and govern the conduct of the other involved, as well as some voice in the control and management of the business undertaking which is the subject of the parties’ relationship. Hauth v. Iacoponelli, 251 La. 410, 204 So.2d 767.”

Finally, Marine Services, Inc. v. A-1 Industries, 355 So.2d 625, 627 (La.App. 4th Cir. 1978), found the law of partnership to control joint ventures. Further, the court quoted the comparison which had been made between partnerships and joint ventures by the Supreme Court in Daily States Publishing Co. v. Uhalt, 169 La. 893, 126 So. 228, 231 (1930):

‘“The relations between joint adventures are assimilated to those of partners inter se. Ludeau v. Avoyelles Cotton Co., [164 La. 275, 118 So. 846] supra. As respects the character of the business undertaken, the principal difference between a partnership and a joint adventure ‘is that, while a co-partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years.’ ”

We find joint ventures to be analogous and practically synonymous with partnerships except that the joint venture is somewhat more limited than the partnership. There exists a commonality of purpose, control, intent and subject in the relationship between the parties. There can be no logical reason to treat the two entities (partnership and joint venture) or their members differently under LSA-R.S. 23:1032 simply because a joint venture and its members is not specifically enumerated in the statute.

As the jurisprudence has recognized the applicability of partnership law to joint ventures we see no reason to distinguish the two as far as the applicability of LSA-R.S. 23:1032 is concerned. We, therefore, hold that a joint venture and its members is covered by the exclusive remedy provision of LSA-R.S. 23:1032. To hold otherwise would reach an anomalous result without a valid distinction. The effect of the law would be unduly thwarted.

The trial court was correct in so ruling.

INTENTIONAL TORT OF JOSEPH CHAMBERLAIN

Joseph Chamberlain was within the course and scope of his employment as manager of the Lake Charles Refining Company at the time of the accident in question. The plaintiff contends that Chamberlain committed an intentional tort causing Buckbee’s death, thus Chamberlain, even though a fellow employee, is not granted immunity from a tort action by LSA-R!S. 23:1032.

Plaintiff alleges in paragraph 15 of her petition as follows:

“Defendant JOSEPH P. CHAMBERLAIN, as manager of the LAKE CHARLES REFINING COMPANY is liable to the petitioner for the following acts or omissions which were intentional within the meaning of the Louisiana Workmen’s Compensation Act:
a) Failing to test, inspect and assemble properly the heater;
b) Failing to clean properly the heater prior to ordering work on it;
c) Failing to warn that the heater had not been cleaned;
d) Advising that the heater had been cleaned and was safe, when it had not been cleaned and was not safe.”

In her opposition to the motions for summary judgment, plaintiff introduced affidavits of employees of Plant Services, Inc. who had performed work on the heater in question. The substance of these affidavits reflect that on November 1, 1978 (more than a year before the accident in question), a welder was performing work on the heater causing a substance in the heater to catch fire. Joseph Chamberlain was allegedly notified of the fire and its cause. Plaintiff contends that this knowledge by Chamberlain would bring his alleged failure to warn, etc., on January 15, 1980, within the ambit of an intentional act under Bazley v. Tortorich, 397 So.2d 475 (La.1981). We disagree.

The fact that a fire occurred while a welder was working on this heater more than a year before this accident is so remote in time that knowledge of such by Chamberlain could not serve as a basis to establish that he desired the result of his failure to act, or that he believed that such results were certain to follow on January 15, 1980.

The allegations herein are strikingly similar to those considered by this court in the recent case of Shores v. Fidelity & Gas. Co. of New York, 413 So.2d 315, 318 (La.App. 3rd Cir. 1982).

This court held that the allegations of plaintiff’s petition were conclusions of the pleader and not facts. In Shores, this court discussed the case of Bazley v. Tortorich, supra, stating as follows:

“In Bazley, the plaintiff’s petition alleged that the defendant fellow employees intentionally committed certain acts which, if proven, would constitute negligence, such as failure to warn of danger, failure to keep a lookout, etc., arguing that since these acts were voluntary, they were intentional within the meaning of the statute. This argument was rejected in light of the court’s interpretation of the meaning of the statute, and it was held that the plaintiff’s petition failed to state a cause of action for lack of allegations that the defendant desired the consequences of his acts or believed such consequences were substantially certain to follow. ...”

This court, in the recent case of Freeman v. Insurance Company of North America, 413 So.2d 692, 693 (La.App. 3rd Cir. 1982) also was faced with similar allegations in the plaintiff’s suit against a co-employee. This court held in Freeman that such allegations were mere conclusions of the pleader and granted a motion for summary judgment.

Applying the reasoning of Shores and Freeman, we find that the trial court correctly sustamed the motion for summary judgment dismissing the suit against Joseph Chamberlain.

For the reasons set forth, the judgment of the trial court sustaining the exception of lack of jurisdiction filed by Jerry R. Watt Company is reversed and set aside. In all other respects the judgment of the trial court is affirmed. The suit is remanded for further proceedings according to law and the views expressed herein. The costs of this appeal shall be paid one-half by the plaintiff-appellant and one-half by Jerry R. Watt Company.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

      . Bob White was originally a member of the joint venture but sold his interest to AWECO, Inc. in December 1978, which was prior to the accident of January 15, 1980. This was apparently the reason the trial judge granted the motion for summary judgment filed by Bob White. It is unnecessary for us to discuss this •issue any further since we conclude that joint venturers are immuned from tort-liability under LSA-R.S. 23:1032.

      . The appeal as to “CKB Corporation” is erroneous. No service on “CKB Corporation” appears in the record. The trial court judgment did not include “CKB Corporation”. The deposition of Angus Bailey reflects that “CKB Corporation” ceased to exist on July 6, 1979, when its charter was amended to become Chamberlain-Bailey Corporation. This occurred prior the accident in question.

      . Since the rendition of this opinion, the partnership articles in the Civil Code have been amended: however, there have been no substantive changes from the principles set forth in Martinez. See LSA-C.C. arts. 2801-2848. (Acts 1980, No. 150 § 1. Also, Acts 1981, No. 797 § 1 and No. 888 § 1.)

      . “Plaintiff’s petition contains the following pertinent allegations:
      ‘Plaintiff avers that defendants caused his injuries by the following acts and omissions:
      1. In intentionally failing to provide the plaintiff a safe place to work;
      2. Intentionally overworking the plaintiff;
      3. Intentionally requiring the plaintiff to carry unsealed gasoline cans in the vehicle;
      4. Intentionally failing to inspect the vehicle for hazardous conditions;
      5. Intentionally failing to maintain the vehicle in a safe condition.
      ‘Plaintiff further alleges that these and other intentional acts were committed by defendants with the knowledge that serious accidents and injuries were substantially certain to result from such acts and omissions.’ ”

      . “Alternatively, reference is made to plaintiff Emma Williams Freeman, et als’ original petition, particularly paragraph six, and to their second amending and supplemental petition, particularly paragraph one and to Gerard C. Lavigne’s original petition, particularly paragraph six; it is seen that there the negligence and/or intentional acts of defendant Martin E. Guillory and South Louisiana Contractors, Inc. (respondent superior) are set forth as follows:
      a) Failing to maintain a proper lookout;
      b) Failing to maintain proper control of the vehicle in which Jeff Freeman and Gerard C. Lavigne were riding;

        c) Being inattentive or distracted;
      d) Crossing center line into opposing lane;
      e) Failing to negotiate the curve;
      f) Driving at excessive rate of speed at the time of the accident;
      g) Failing to slow down or stop in time to avoid the accident;
      h) Failing to do what he should have done;
      i) Failing to see what he should have seen.”


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    J. W. DEAN, Plaintiff-Appellant, v. GEORGIA CASUALTY & SURETY COMPANY, et al., Defendants-Appellees.
    No. 82-9.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    Rehearing Denied Sept. 15, 1982.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for plaintiff-appellant.
    Hall, Lestage & Lestage, H. 0. Lestage, III, DeRidder, for defendants-appellees.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Judge Joseph A. LaHaye, 27th Judicial District Court, Parish of St. Landry, presided as Judge Ad Hoc in this decision.

   DOUCET, Judge.

This is a workmen’s compensation suit. The plaintiff, J. W. Dean, sued his employers, Johnny Haynes and Lewis Brinkley, and the employers’ insurer, Georgia Casualty and Surety Company, to recover workmen’s compensation benefits. The trial court ruled in favor of the defendants and plaintiff now appeals this adverse judgment. We affirm.

On June 16, 1980, the plaintiff, J. W. Dean, was injured in an accident while working as a pulpwood cutter for defendant Lewis Brinkley, a timber contractor. At that time, Mr. Brinkley was producing wood which he was selling to defendant Johnny Haynes’ business, the Haynes Pulpwood Company, Inc. At the time of the accident, defendant Georgia Casualty and Surety Company was the workmen’s compensation insurer of Haynes Pulpwood Company, Inc. with a policy issued and in full force and effect.

The accident occurred when the chain on the chain saw that plaintiff was operating broke, swung around and struck him in the left lower leg causing a laceration.

Dr. J. Lane Sauls, a family' practitioner from DeRidder, Louisiana, treated plaintiff’s injury the day of the accident. Dr. Sauls diagnosed the injury as two rather deep lacerations extending through the skin, the subcutaneous tissues, with one extending into the fascia (muscle covering). One laceration was approximately 3 inches long; the other was about 5 inches long. Dr. Sauls testified that the wound was cleaned, sutured and dressed and the plaintiff was given pain medication. Dr. Sauls subsequently saw plaintiff on a weekly basis. On these visits he was of the opinion that plaintiff was healing satisfactorily, even though plaintiff on several occasions complained of pain and tenderness. Dr. Sauls discharged plaintiff as fully healed on August 6, 1980. He testified that at the time of discharge he felt plaintiff could return to his work in the woods.

Mr. Dean testified that he attempted to return to work one day at the end of July of 1980, but ceased work after one-half day at his usual job because of pain and swelling in his leg.

After having been released by Dr. Sauls, plaintiff was examined by Dr. Austin W. Gleason and Dr. Edwin C. Simonton, Jr., both orthopedists in Shreveport, La.

Dr. Gleason examined plaintiff on September 18, 1980, at the request of his attorney. Dr. Gleason’s diagnosis was that Mr. Dean had a 1% functional disability to the left leg for injury involving the muscles of the anterior compartment with scarring and herniation of the muscles. Dr. Gleason did testify by deposition that he thought plaintiff could “go back to woodcutting or whatever”.

Dr. Simonton examined Mr. Dean on January 23, 1981. He testified by deposition that he did not find evidence of an orthopedic disorder which was disabling at that time.

Plaintiff was paid workmen’s compensation benefits at the rate of $148.00 per week from the date of the accident by defendant Georgia Casualty & Surety Company, until August 5, 1980, when benefits were terminated. Plaintiff then filed suit seeking benefits for total and permanent disability. The trial court held in favor of the defendants and plaintiff appeals.

The issue is whether the trial court was clearly wrong in failing to find plaintiff disabled and thereby denying workmen’s compensation benefits.

This court summarized the factors to be considered in weighing medical evidence in Rodriguez v. American International Insurance Company, 394 So.2d 621 (La.App. 3rd Cir. 1980):

The trial judge may accept or reject an opinion expressed by any medical expert depending on how impressed he is with the qualifications, credibility, and testimony of the expert. In evaluating the testimony of medical experts of nearly equal qualifications, considerable weight must be attached to the opportunities each doctor had for observation of the patient and the doctor’s familiarity with the patient and his history. The testimony of a treating physician who has had the benefit of repeated examinations and sustained observation of a patient under his direct care is to be accorded greater weight and probative value than that of a physician who has not undertaken treatment of the patient but has merely examined him a few times preparatory to giving expert testimony regarding the patient’s condition. The testimony of a physician who examines and treats the claimant from the inception of injury is entitled to greater weight than the opinion of one who examines the claimant later.

In determining the residual effect of Mr. Dean’s injury, the trial court evaluated both medical and lay testimony. The testifying physicians were all clearly competent and credible. However, Dr. Gleason’s opinion differed from those of Dr. Sauls and Dr. Simonton in that Dr. Gleason thought plaintiff had a 1% functional disability to the left leg. Both Dr. Sauls and Dr. Simonton believed plaintiff was not disabled.

Evidently, the trial court chose to give Dr. Sauls’ testimony greater weight than that of Dr. Gleason. Dr. Sauls was the treating physician who had the benefit of repeated examination in forming his opinion that plaintiff was not disabled. Dr. Gleason had examined the plaintiff only once in preparation for trial. Additionally, the testimony of another orthopedist, Dr. Simonton, supported the conclusion made by Dr. Sauls. The medical evidence in the record clearly supports the trial court’s judgment denying plaintiff workmen’s compensation benefits.

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

AFFIRMED.


author: SWIFT, Judge.

text:
    DRS. BROWN, CARTER & SAULS, Plaintiff-Appellee, v. Dr. J. Lane SAULS, et ux., Defendants-Appellants.
    No. 82-124.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    Rehearing Denied Sept. 15, 1982.

      Hargrove, Guyton, Raney & Barlow, Billy R. Pesnell and David R. Taggart, Shreveport, for defendants-appellants.
    Leithead, Scott, Boudreau & Myrick, Everett R. Scott, Jr., Lake Charles, for plaintiff-appellee.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Honorable Joseph A. LaHaye of the 27th Judicial District Court, State of Louisiana, participated in the decision as a Judge ad hoc.

   SWIFT, Judge.

The plaintiff, Drs. Brown, Carter & Sauls (A Professional Medical Corporation), filed this suit against Dr. J. Lane Sauls and his wife for specific performance of a stock purchase agreement and for an accounting by Dr. Sauls of any monies received by him and owed to the corporation. From a judgment rejecting plaintiff’s demand for an accounting but granting plaintiff’s demand for enforcement of the stock purchase agreement, the defendants have appealed.

On November 15, 1971, a stock purchase agreement was entered into by the plaintiff corporation and its shareholders, Dr. Eti-enne R. Brown, Dr. Henry S. Carter and Dr. J. Lane Sauls, and their wives. The parties to the agreement stipulated that upon the termination of a shareholder’s employment, the corporation would buy and the affected shareholder would sell all the shares of stock held by that stockholder at a price computed as follows:

“The purchase price for each share of the capital stock of the Corporation shall be its book value as of the end of the calendar month in which death, termination of employment or retirement occurs, or the end of the calendar month following the aforesaid twelve month period of permanent disability, which book value shall be determined by the accountant for the Corporation from its books and records without attributing any value to any good will of the Corporation or any outstanding accounts receivable. The purchase price as determined in accordance with the foregoing provisions, shall be payable by the Corporation to the Stockholder or to his surviving spouse and heirs or to his succession representative or curator if inderdicted (sic), as the case may be, within sixty (60) days following the valuation date as hereinabove provided.”

By written notice on February 1, 1979, Dr. Sauls terminated his employment with the plaintiff corporation effective March 16, 1979. At that time he owned 80 shares of the corporation’s outstanding 240 shares of capital stock. By letter dated February 27, 1979, the plaintiff acknowledged receipt and acceptance of Dr. Saul’s resignation and informed him that Ralph Johnson, the corporation’s accountant, had been requested to determine the book value of the capital stock in accordance with the agreement.

In a letter dated April 20, 1979, Mr. Johnson reported to the corporation that on March 31, 1979, excluding the effect of receivables and good will of the corporation, the net assets amounted to $90,183.32 and the book value per share of stock was $375.76. On April 23, 1979, the corporation notified Dr. Sauls of the evaluation and of its willingness to pay him $375.76 per share for his 80 shares upon delivery of the stock certificates. Subsequently, the plaintiff acknowledged an error in the previous computation of book value due to the omission of an item of prepaid rent in the amount of $3000.00. The inclusion of this item increased the original book value determination by $12.50 per share to $388.26.

Dr. Sauls disagreed with Mr. Johnson’s evaluation and did not deliver his stock to the corporation. On June 7, 1979, the plaintiff corporation filed the present suit.

Dr. Sauls has not questioned the validity of the stock purchase agreement, but merely challenges the correctness of Mr. Johnson’s determination of the book value of the stock. The defendants, based on the testimony of two accountants engaged by them (Messrs. Wayne Wilson and Peter Bratlie), contend that Johnson omitted several assets of the corporation from his evaluation and that the true book value of the corporation on March 31, 1979, was $935.25 per share.

The court after trial agreed with the defendants’ position in several respects and found the book value under the stock purchase agreement to be $471.69 per share as of the valuation date. However, in reaching this figure, it rejected their contentions that the following items should have been included as assets in the computation:

1) Leasehold improvements in the amount of $19,045.00.
2) Prepaid insurance in the amount of $5,083.08.
3) Prepaid rent in the amount of $70,-000.00.

The judgment granted specific performance of the purchase agreement and awarded seven per cent interest from the date of judicial demand on the difference between the sum offered by the corporation to the defendants before the filing of suit and the amount finally determined to be the purchase price of the stock.

The issues raised by this appeal are whether the trial court erred in failing: 1) to include the above assets in its determination of the book value of the stock; and 2) to award interest on the whole amount of the correct purchase price and if so from what date.

In the Succession of Jurisich, 224 La. 325, 69 So.2d 361 (La.1953), our supreme court said that the term “book value” in a similar agreement was the value of an asset as reflected by the books of account of the company, as distinguished from the actual or market value of the asset. Of course, the business records must be kept correctly and consistently according to reasonable accounting principles and practices.

In omitting the aforementioned three items from its determination of the book value of the stock, the trial court in the present case assigned clear and convincing written reasons for its decision. We approve and adopt as our own the following portions of the opinion:

“The remaining items in dispute, leasehold improvements, prepaid insurance and prepaid rent, are of a different nature than the items that have been considered. They involve corporate expenditures made in previous years and expensed on the books and records, but which Dr. Sauls and his accountants contend were corporate assets on March 31, 1979. These items were never recognized by the corporation as assets and they were never carried on the books and records as such. Accordingly, they were not included in Mr. Johnson’s computation of book value.

“The alleged leasehold improvements, prepaid insurance and prepaid rent were ‘discovered’ by Messrs. Wilson and Bratlie during their two day examination of all the books and records of the corporation. Based on their findings, and believing that such action was required by the generally accepted accounting principles that apply to the cash system of accounting, Wilson and Bratlie included those three items as assets of the corporation. The accountants maintain that, in determining book value from corporate books and records, if there is deviation from generally accepted accounting principles, the books and records must be revised and corrected in accordance with the applicable accounting principles. They contend that is what they have done in this case.

“Plaintiff corporation argues that the provisions of the stock purchase agreement do not require or permit an audit of all the books and records of the corporation and make no requirement that the books and records be maintained according to generally accepted accounting principles or in any particular manner. Plaintiff further argues that in the stock purchase agreement the parties elected to use book value as the standard for the price to be paid and that this was done to avoid the necessity of an audit and the complications and pitfalls inherent in other types of evaluation. Plaintiff also contends that the accounting procedures and practices followed by it have been consistent from its beginning and that it is improper and unfair to now accrue as assets of the corporation items that have long since been expensed on the books, all with the knowledge and approval of Dr. Sauls.

“It is necessary to discuss the factual contentions of the parties in order to properly understand these particular items and the issues they present. The leasehold improvements will be considered first. Messrs. Wilson and Bratlie found five checks which they believe represented payments for improvements to the leased premises which, in their opinion, should have been capitalized on the books of the corporation and depreciated over a period of years. Those five checks were as follows: for $5,001.73 to Nolen Construction Company, dated March 6, 1974; for $3,600.00 to Nolen Construction Company, dated April 19, 1974; for $369.09 to W. L. Deggs Construction Company, dated July 11, 1974; for $2,573.90 to Nolen Construction Company dated December 2,1976; and for $13,155.82 to DeRidder Clinic, dated May 30, 1977 (of which $7,500.00 was believed to be for leasehold improvements). Considering the size of those five payments and having satisfied themselves that there had been some improvements to the leased premises during the term of the lease, Messrs. Wilson and Bratlie concluded that the corporation had improperly expensed the cost of the work during the years when the payments were made. Thus, they reclassified the five payments, which totaled $19,044.72, from expenses to leasehold improvements, and considered them an asset of the corporation.

“Plaintiff corporation denies that all five of those expenditures were for leasehold improvements. Specifically, it denies that the payment of $369.09 made to W. L. Deggs Construction Company on July 11, 1974, and the payment of $7,500.00 to De-Ridder Clinic on May 30,1977, were for improvements. The corporation contends that the payment of $369.09 was for ordinary repairs to air conditioning equipment and that the payment of $7,500.00 covered both ordinary repairs to the premises and maintenance services rendered to the corporation over a period of several years. On this factual issue the evidence does not establish that those particular payments were for leasehold improvements.

“As to the remaining three payments, two in 1974 and one in 1976, all to Nolen Construction Company, plaintiff corporation admits that they were for improvements and not ordinary repairs, but contends that it would be improper and unfair at this late date to capitalize those payments and consider them as assets after the management of the corporation, which included Dr. Sauls, had elected to expense the items and take the resulting tax benefits. The corporation further contends that the handling of the payments as expenses was never a source of contention between it and the shareholders, including Dr. Sauls, until this law suit arose and until Messrs. Wilson and Bratlie reviewed the books and records.

“The next item for consideration is prepaid insurance. Messrs. Wilson and Bratlie said that the books and records of the corporation show that on March 31, 1979, there was $5,083.08 in prepaid insurance, which, in their view, should be considered an asset of the corporation. While the premiums had been paid prior to March 31, 1979, and the terms of the policies did not exceed one year, the periods of coverage extended beyond the closing date of March 31, 1979, and, for that reason, the accountants maintain that the unearned premiums should be considered an asset. However, it should be noted here Mr. Wilson testified that the inclusion of prepaid insurance as an asset is arguable in this case because it is based on the accrual system of accounting and not on the cash system. Mr. Wilson also stated that prepaid insurance policies with a term of only one year are not usually included as an asset on a financial statement of a cash basis taxpayer.

“Plaintiff corporation contends that since it used the cash system of accounting and had paid the premiums prior to March 31, 1979 (with most premiums having been paid before October 31, 1978, the end of the last fiscal year), and had historically and routinely expensed such payments when made, it would be improper and unfair to capitalize the payments and consider the unearned premiums as an asset, especially since none of the policies had a term of more than one year. Further, the corporation contends, as it did in the case of the leasehold improvements, that it would be improper and unfair to go back and change the usual and customary accounting practices that had been followed through the years, especially since those practices were well known to and concurred in by Dr. Sauls, who, along with the other shareholders took advantage of the tax benefits that resulted.

“The last item involves what Messrs. Wilson and Bratlie described and characterized as prepaid rent. After their examination of the books and records the accountants reported that the corporation had overpaid rent to DeRidder Realty, Inc. in the amount of $70,000.00. They reach that conclusion after examining a written lease agreement between plaintiff corporation and DeRidder Realty, Inc., dated November 15, 1971, which provided for a monthly rental of $1,500.00 for a primary term of five years with an option to renew for an additonal (sic) five years at the same rental, all available minutes of meetings of directors and shareholders, and records of payments made to DeRidder Realty, Inc. for rent between November 15, 1971 and March 31, 1979. Mr. Wilson said the original lease was authorized by the board of directors of thé corporation, but there was no authorization for a rent increase except in October, 1973, when the corporation was authorized to enter into another lease with DeRidder Realty, Inc. for a parking lot at a monthly rental of $500.00. Yet he found that in 1973 the monthly rental payments to De-Ridder Realty, Inc. were substantially increased above the amount authorized in the corporate minutes. Mr. Wilson said that the excess payments, between 1973 and March 31, 1979, amounted to $70,000.00. He stated that since the amount paid substantially exceeded the amount of rent owed to DeRidder Realty, Inc., he considered the overpayment of $70,000.00 as prepaid rent and recognized it as an asset of the corporation.

“Plaintiff corporation denies that there was any prepayment of rent to DeRidder Realty. It contends that the amount of rent paid between November 15, 1971, and March 31, 1979, was the amount due and payable as a result of informal agreements made, approved and ratified by the three shareholders of the corporation. However, Dr. Sauls denies that he ever consented and agreed to any rent increase except the one authorized by the board of directors in October, 1973. Dr. Sauls also maintains that he had no knowledge of any other increase in rent until May, 1977, when he received the first computer print-out, and that he protested vigorously at that time.

“Dr. Sauls testified that when the original lease was made on November 15, 1971, the rent was fixed at $1,500.00 per month because it was believed that a charge of $500.00 per month per doctor would be fair. He admitted that there was some discussion of a rent increase of $500.00 a month in January or February, 1973, when the corporation employed Dr. Vines and he established his office in the building. The amount of that proposed increase was consistent with the original idea that $500.00 per month per doctor would be a proper charge. There was another development in January, 1974, when another tenant, Dr. Peters, who had dental offices in the building, vacated approximately 900 square feet of office space. That area was taken over by plaintiff corporation and, after some remodeling work was done, it was given to Dr. Sauls as his office space. Dr. Peters had been paying DeRidder Realty $500.00 per month for that space and, according to Dr. Brown, the plaintiff corporation, by informal agreement of the three shareholders, agreed to pay the same amount. Thus, plaintiff corporation contends that the monthly rental was increased from $2000.00 to $3,0Ci0.00 because of (1) the employment of Dr. Vines in 1973 and (2) the acquisition in eprly 1974 of additional office space that had* Deeri occupied by another tenant.

“Dr. Sauls admitted that as early as February, 1974, he saw financial statements prepared by the office administrator of the corporation which showed rent payments of $3,000.00 per month. The minutes of meetings of the board of directors and the shareholders in November, 1973, and in subsequent years, indicate that annual financial reports of the corporation were presented and approved. Those minutes indicate that Dr. Sauls was present at those meetings. However, according to the minutes, Dr. Sauls never raised a question concerning the financial reports or the lease with De-Ridder Realty until the meeting of November 26,1978, which was after he had announced his intention to terminate his employment with the corporation. At that meeting Dr. Sauls asked some questions about the lease agreement and its terms, the purchase of his shares by the corporation, and his severance benefits. The minutes state that the terms of the lease were discussed; that some confusion existed concerning renewal of the lease because it had been done informally; and that it was agreed by common consent of the shareholders and directors that legal assistance would be obtained in order to clarify the situation.

“While there is some conflict in the evidence, the Court finds that it is more probable than not that Dr. Sauls was aware of and, at least tacitly, approved the increases in rent. This finding is supported by his admission that there was a discussion of a rent increase of $500.00 a month when Dr. Vines was employed by the corporation and established his office in the building, and that $500.00 per month per doctor was believed to be fair. It is also supported by the undisputed fact that in January, 1974, plaintiff corporation acquired additional office space (for the use of Dr. Sauls) that had been leased to Dr. Peters for $500.00 per month. No explanation is offered by Dr. Sauls as to why he expected that space to have been furnished to plaintiff orporation rent-free. Everything considered, it does not appear to the Court that the increases in the rent were excessive, ui Reasonable or unfair.

“The Court believes that Dr. Sauls was mistaken when he testified that he did not know the rent had been increased to $3,000.00 a month until he received the first computer print-out in May, 1977. He was an employee, officer (vice-president), director and shareholder of the plaintiff corporation at all times between November 15, 1971 and March 16, 1979 (the date he terminated his employment). He was on the scene on a day to day basis and was actively involved in the management of the corporation. He had access to the books and records to the same extent as the other two doctors. There is no evidence that any effort was made by anyone to conceal any information from him. Further, Dr. Sauls candidly admitted that he probably had signed rent checks payable to DeRidder Realty. He said normally such checks were prepared and signed by the office administrator and then presented to him or one of the other doctors for counter-signature.

“The monthly rental payments to DeRid-der Realty, Inc. were expensed on the books when made and, regardless of how Messrs. Wilson and Bratlie may have viewed the payments, it. is clear that plaintiff corporation considered it was paying only current rent and not prepaying future rent. There is no evidence that remotely suggests otherwise. On the facts presented, the accountants were not justified in classifying the alleged over-payment of rent as an asset of the corporation.”

“While the manner in which the corporation handled payments for improvements to the leased premises may leave something to be desired from an accountant’s point of view, the fact remains that the corporation was entirely consistent in the handling of such payments and Dr. Sauls was aware of the procedure that was followed. The decision to expense the payments for such improvements no doubt produced some favorable tax benefits for the corporation and the shareholders. Perhaps the Internal Revenue Service would have been entitled to question the manner in which the payments for improvements were handled on the tax returns, but Dr. Sauls is not entitled to question the payments at this late date. He is estopped now to challenge what he approved of and benefited from earlier.

“As for the prepaid insurance, the evidence shows that the terms of the policies did not exceed one year and most of the premiums were paid and expensed in the preceding fiscal year which ended October 31, 1978. There was nothing unusual or suspicious about the payment of those premiums. They were handled on the books and records of the corporation in the usual and customary manner. Dr. Sauls did not complain of that handling and he, along with the other shareholders, took advantage of the resulting tax benefits. The accountants, Messrs. Wilson and Bratlie, expressed some doubt about the validity of including the prepaid insurance as an asset. Under the facts and circumstances presented in this case, the Court concludes that the prepaid insurance cannot be considered an asset of the corporation for the purpose of computing book value under the terms of the stock purchase agreement.”

From our review of the record and the law, we are in full accord with the trial court’s findings and reasons for excluding the aforementioned three items in determining the book value of the stock of the plaintiff corporation. We also agree with its decree granting specific performance of the stock purchase agreement and ordering the plaintiff to pay $471.69 per share upon delivery by the defendants of the certificates for their stock.

The remaining issue on appeal is whether the trial court erred in its award of interest. The defendants argue that the court should have awarded legal interest in different percentages on the whole purchase price of the stock from May 30, 1979, the valuation date expressed in the stock purchase agreement.

According to Roques v. Alfonso, 399 So.2d 1294 (La.App. 4 Cir. 1981):

“LSA-C.C. Art. 1938 provides that all debts shall bear the specified rate of legal interest ‘from the time they become due, unless otherwise stipulated.’ An unliqui-dated claim is due from the time it becomes ascertainable. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Hicks v. Rucker Pharmacal Co., Inc., 367 So.2d 399 (La.App. 2nd Cir. 1978), writ denied, 369 So.2d 1360 and 1361 (La.1979).”

Interest was awarded in Roques to the plaintiff contractor on a retainage from date of the judgment, because his right thereto depended on the trial court’s determination of whether or not certain defects existed in the work done under the contract.

In Hicks, supra, the court held that the plaintiffs were entitled to legal interest on the public selling price of their stock from the date they were entitled to receive it from the corporation free of a restriction as to sale, because this was the date on which the amount of the corporation’s debt became ascertainable.

In view of the dispute between the parties as to the method of determining the book value of the stock in the present case, it would appear that the purchase price thereof was not ascertainable until rendition of judgment by the trial court. Be that as it may, the stock purchase agreement in this case provides reciprocal obligations to be performed by the parties at the same time on the valuation date, i.e., the corporation is to pay for the stock at the time the stockholder delivers the stock certificates. In such case under LSA-C.C. Art. 1913 one party has not defaulted in his obligation under the contract unless the other party has offered or performed his obligation at the time specified in their agreement.

There is no indication in this record that the defendants have ever offered or attempted to deliver their stock certificates to the plaintiff at any specified price. Therefore, in our opinion the plaintiff is not obliged to- pay the purchase price for the stock until the stock certificates are delivered and no interest is due thereon until this' is done. .Although the interest award in the judgment is in error, since the plaintiff has not appealed or answered the defendants’ appeal we cannot amend the judgment in its favor by deleting that award.

For the foregoing reasons, the judgment of the district court is amended to change the date to carry out the sale and purchase of the defendants’ stock from November 16, 1981, to 15 days after the judgment becomes final (or if that day is a holiday, the first legal day thereafter), and in default of payment of the purchase price upon delivery of the stock certificates to provide legal interest on the full value of the stock from such date until paid. Otherwise the judgment is affirmed. The costs of this appeal are assessed to the defendants.

AMENDED AND AFFIRMED.

      . The plaintiff corporation subsequently changed its name to DERIDDER CLINIC, A PROFESSIONAL CORPORATION.


author: LEAR, Judge.

text:
    Derry L. BEARDEN, et al., v. Joseph RUCKER, et al.
    No. 14842.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.
    Rehearing Denied Sept. 8, 1982.
    Roy Maughan, Baton Rouge, for plaintiffs-appellants Derry Lynn Bearden, Individually and as Natural Tutrix of the Minor, Ricky Bearden, and Polly Christian.
    John Dale Powers, David M. Vaughn, Baton Rouge, for defendants-appellees Joseph Rucker and Cavalier Ins. Co.
    John Swanner, Baton Rouge, for defendant-appellee Gulf Ins. Co.
    Henry D. Salassi, Jr., Jay G. McMains, and L. Michael Cooper, Baton Rouge, for defendant-appellee Fireman’s Fund Ins. Co.
    E. M. Harold, Jr., Rene J. Mouledoux, and Elliott G. Courtright, New Orleans, for defendant-appellee Exxon Corp.
    Myron A. Walker, Jr., Baton Rouge, for defendant-appellee David M. Peters.

      Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiffs, Derry Lynn Bearden, her minor son, Ricky Bearden, and Polly Christian, were passengers in an automobile owned by Exxon and being driven by David Peters, an Exxon employee. Plaintiffs were injured when defendant Joseph Rucker (Rucker) failed to stop at a stop sign and flashing red light and struck the vehicle in which plaintiffs were riding. Also named as defendants were David Peters (Peters), Cavalier Insurance Company (Cavalier), which insured Rucker, Firemen’s Fund Insurance Company (Firemen’s), which insured Exxon and was also Peters’ personal insurer, and Gulf Insurance Company (Gulf), as the uninsured motorist carrier on a policy of insurance issued to Lloyd Bear-den, husband of Derry Lynn Bearden. After a trial on the merits, the trial court found that Rucker’s negligence caused the accident and that Peters was not negligent nor a cause of the accident. The trial court further found that Peters was not acting within the course and scope of his employment with Exxon on the day of the accident. Judgment was rendered against Rucker, Cavalier, and Firemen’s Fund, under the uninsured motorist portion of their policy, the automobile being driven by Peters being covered as a non-owned automobile. The trial court further found that plaintiffs were not covered under the uninsured motorist provisions contained in the Gulf policy issued to Lloyd Bearden. Damages were awarded to all three plaintiffs.

After judgment, a motion for a new trial was filed on behalf of defendant Rucker, alleging his inability to pay. The trial court granted defendant’s motion and modified its prior judgment by reducing the amount of damages awarded to each plaintiff. From this modified judgment, plaintiffs have appealed.

In an answer to plaintiffs’ appeal, defendants Rucker and Cavalier seek a credit of $380.00, which they allege has been paid to another passenger, thus reducing Cavalier’s ten thousand dollar limit. Defendant Rucker, based on his impecunious position, also seeks reversal of that portion of the judgment, in the amount of $5,000.00, which exceeds his liability insurance policy limits.

The first issue on appeal concerns the trial court’s failure to find Gulf liable under the uninsured motorist coverage for the injuries sustained by plaintiff Derry Lynn Bearden and her son.

Lloyd Bearden was the only named insured under the Gulf policy. The policy also provides coverage to a relative of the named insured who is a “resident of the same household” as the named insured. Thus, whether Mrs. Bearden and her son were residents of the same household as Lloyd Bearden is a factual issue to be determined by the trier of fact. Bearden v. Rucker, 356 So.2d 516 (La.App. 1st Cir. 1977).

At the time of this accident, Mrs. Bear-den was legally separated from Mr. Bear-den and she and her son were living in an apartment on Sharp Road, while Mr. Bear-den continued to live in the home previously occupied by him and Mrs. Bearden on West Darryl. Although Mrs. Bearden frequently visited her husband’s residence on West Darryl in order to see her other children, and sometimes ate meals with Mr. Bearden and the children, she never stayed overnight or lived in Mr. Bearden’s home after she moved out. The record does not indicate that Mr. and Mrs. Bearden discussed reconciliation. Mrs. Bearden testified that, if she had been asked at the time of the accident where she lived, she would have said the apartment on Sharp Road.

After reviewing this record, we find that the overwhelming weight of the evidence indicates that Mrs. Bearden was not a resident of the same household as Mr. Bearden.

The record also indicates that the custody of Ricky Bearden was awarded to Mrs. Bearden by the Family Court at the time of her judicial separation from Mr. Bearden. Thus, at the time of the accident, the minor child, Ricky Bearden, was a resident of his mother’s household rather than of his father’s. Ursin v. Oubre, 343 So.2d 1189 (La.App. 4th Cir. 1977); Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App. 3rd Cir. 1975).

The trial court was correct in concluding that Mrs. Bearden and her minor child, Ricky Bearden, were not residents of Mr. Bearden’s household at the time of the accident and that no coverage was provided to them under the terms of Gulf’s insurance policy.

Plaintiffs next argue that the trial court erred in failing to find David Peters negligent and in failing to render judgment against Firemen’s Fund Insurance Company, as his personal insurer.

David Peters testified that he was driving well below the speed limit immediately prior to the accident. This testimony was corroborated by the other occupants of the car. He also stated that he normally drove cautiously and in fact slowed his vehicle as he approached the yellow caution light, at least by removing his foot from the accelerator. Some of Peters’ passengers stated that he did not slow down prior to observing defendant Rucker’s car as it passed into the intersection. However, other passengers stated they did not know. All agreed, however, that Peters slammed on his brakes and took evasive action when he first observed Rucker’s vehicle enter the intersection at a high rate of speed.

While we may have reached a different factual conclusion as to Peters’ negligence, after carefully reviewing this record, we do not find that the trial court’s conclusion that Peters was not negligent is manifestly erroneous. Thus, in conformity with the standard of appellate review announced in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), the judgment of the trial court, finding Peters free of negligence, will not be disturbed.

Plaintiffs next argue that the trial court erred in considering the insolvency of one defendant, where other defendants were solvent and had the ability to pay the judgment. However, we find that this is not the case. Judgment was rendered only against defendants Firemen’s and Cavalier, in addition to Mr. Rucker. The total amount of the judgment was $35,000.00. Firemen’s uninsured motorist coverage is in the total amount of $20,000.00 and Cavalier’s liability coverage in the total amount of $10,000.00. The sum total available from these two defendants is $30,000.00. Thus, we find no other solvent defendant and the trial court properly considered defendant Rucker’s inability to pay. Daly v. Kiel, 106 La. 170, 30 So. 254 (1901); Suhor v. Gusse, 388 So.2d 755 (La.1980). The question of defendant Rucker’s ability to pay the amount of the judgment awarded in excess of the insurance coverage is a question of fact and, like other factual issues, the trier of fact’s determination will not be disturbed in the absence of manifest error. Arceneaux v. Domingue, supra.

The record indicates that Mr. Rucker is employed as a janitor. His take home pay is $100.00, or less, and he owns no home, no car, has no checking account and has only $100.00 in savings. He owns no other property. The trial judge heard Mr. Rucker testify and considered the evidence of his ability to pay the judgment. After doing so, the trial court reduced the award from $71,763.35 to $35,000.00. Upon review of this record, we find that the trial court’s determination in this regard is not manifestly erroneous and will therefore not be disturbed. Arceneaux v. Domingue, supra.

With regard to Cavalier’s answer, we note that defendants Rucker and Cavalier and all three plaintiffs have filed a joint stipulation herein stating that the ten thousand dollar judgment rendered against Rucker and Cavalier, in solido, is incorrect in that $380.00 should be deducted from Cavalier’s policy limits as the amount previously paid by Cavalier to another passenger in the Peters automobile. Based on this stipulation, we find that $380.00 should be deducted from Cavalier Insurance Company’s policy limits.

Finally, for the reasons stated above with regard to the reduction of the original award, the judgment of the trial court rendered upon the motion for new trial, awarding judgment against Rucker individually, in the amount of $5,000.00 in excess of the insurance coverage, will not be further reduced by us.

For the foregoing reasons, the judgment of the trial court is hereby amended to allow defendant Cavalier Insurance Company a credit against the judgment rendered against them in the amount of Three Hundred Eighty & 00/100 ($380.00) Dollars. The judgment of the trial court is hereby affirmed in all other respects. The relief sought by defendants Joseph Rucker and Cavalier Insurance Company in their answer to this appeal is hereby denied. Costs on appeal are to be paid by plaintiffs, Derry Lynn Bearden, Ricky Bearden and Polly Christian.

AMENDED, AND AS AMENDED, AFFIRMED.


text:
    ROCKWOOD INSURANCE COMPANY v. CITY OF BATON ROUGE.
    No. 14946.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.
    Lewis O. Unglesby, Baton Rouge, for plaintiff-appellant Rockwood Ins. Co.
    David E. Henderson, and David Sanders, Staff Attys., Baton Rouge, for defendant-appellee State of La.
    Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Appellant, Rockwood Insurance Company, is a commercial surety company providing bail bonds. Appellant sought declaratory relief in the trial court, challenging the constitutional validity of LSA-R.S. 15:84, which regulates the forfeiture of bail bonds in city, parish and juvenile courts. Appellant contended that this statutory provision, which does not require that notice of a criminal defendant’s reassigned appearance date be given to the surety, and allows forfeiture in the absence of such notice, is violative of their procedural due process rights and is therefore unconstitutional. This case was decided by the trial court solely on the basis of a stipulation of fact (which is attached hereto as an appendix). The trial court found that the statutory provisions complained of by appellant are not constitutionally defective and dismissed appellant’s suit. This appeal results from that dismissal.

Appellant argues on appeal that its due process rights are violated by both the difference between the bond forfeiture procedures in district and city courts and by the failure to require that notice be given to a surety of the rescheduling of a defendant’s appearance date. We find that the trial court correctly addressed and answered both of appellant’s contentions in its lengthy and well-reasoned written reasons for judgment, which we quote in pertinent part, below:

“When the accused fails to appear initially, Rockwood argues that the statutory notice distinction between district courts (La. R.S. 15:85) and the courts of limited jurisdiction (La.R.S. 15:84) is ‘unconstitutional’. Rockwood acknowledges it was given actual notice of the time and date of the initial appearances (stipulation and original memorandum). Thus, the only question presented in this challenge is whether the state may constitutionally maintain a different forfeiture procedure in the courts of limited jurisdiction and district courts.

“La.R.S. 15:85 A (1) does not specify the type of notice the surety is to receive. It provides only that before the court orders forfeiture it considers ‘... proper evidence including service or attempted service upon the defendant and service upon the surety.’ La.R.S. 15:84 does not include a similar requirement in city, parish and juvenile courts.

“Rockwood has cited no authority for the proposition that bond forfeitures must be treated in the same manner in the courts of limited jurisdiction as in the district court. Since actual notice was received of the initial appearance date, no notice-due process question arises in this situation. The only question then is whether the state constitutionally may provide different statutory forfeiture procedures for the courts of limited jurisdiction. No citation is necessary for the fundamental proposition that statutes are presumed constitutional. Certainly the legislature has the authority to consider the more informal and anticipated more expeditious procedures of the courts of limited jurisdiction and acknowledge that the date for appearance in such proceedings may be set in a different manner than in district court with its broader subject matter jurisdiction. Rockwood has failed to show that the different manner of notifying the defendant and surety is other than completely rational in fostering a legitimate state interest. See e.g., Acorn v. City of New Orleans, 377 So.2d 1206 (La.1980). Much more extensive procedural differences exist with respect to ordinary civil proceedings in courts of limited jurisdiction. Compare C.Civ.P., Book II (Ordinary Proceedings) with Book VIII (Trial courts of Limited Jurisdiction).

“Moreover, it is not clear that service upon the surety is required in misdemeanor cases in district court. While La. R.S. 15:85 may be read to imply such notice, article 337 of the Code of Criminal Procedure, which unlike La. R.S. 15:85, deals expressly with notice, provides ‘when a bail bond does not fix the appearance date, and the presence of a person who has been released on bail in a felony case, his surety shall be given written notice . .. ’

“Official comment (c) explains, ‘(t)he notice requirement (initial appearance) is limited to felony cases, for it is not practicable to require two or three days prior written notice to the surety in misdemeanor cases, especially those tried in city courts .. . The appearance date for misdemeanor trials will usually be fixed or available when the bail bond is given ... ’ (emphasis and parentheses added).

“Thus Rockwood’s argument fails on two independent grounds. First, the assumed distinction between notice procedure in the courts of limited jurisdiction and district courts is entirely rational and thus constitutional;. and second, there appears to be no express notice requirement for misdemeanors in district court.

“Rockwood similarly challenges the constitutionality of the lack of notice to the surety when the accused appears initially and the matter is reassigned to a subsequent date at which time the accused fails to appear. It objects to the absence of a requirement of notice of the reassignment.

“Rockwood’s assertion that it would get notice of the reassignment if the matter were in district court is untenable. Article 337 directly addresses the question of reassignments by providing, ‘If the principal appears as ordered and the proceeding is continued to a specific date, the surety need not be given notice of the new appearance date.’ The reason for the rule is set forth in official comment (e), ‘... the surety has full opportunity to easily determine the new date and protect his interests accordingly.’ Thus, there is no statutory requirement in district court or the courts of limited jurisdiction that the surety receive notice of reassignments.

“In State v. Hudson, [261 La. 555] 260 So.2d 621 (La.1972), the Supreme Court stated that article 337 ‘clearly indicates if the principal appears as ordered and the proceeding is continued to a specific date, the surety need not be given notice of the new appearance’ (260 So.2d at 623). The court found no error in the trial court’s actions forfeiting the bond.

“Rockwood additionally asserts that this failure to give notice of reassignment is constitutionally infirm by violating due process of law. A review of bail obligations and procedures is appropriate in addressing this contention.

“A central condition of the bail undertaking is ‘that the defendant will appear at all stages of the proceeding to answer the charge’ (C.Cr.P. art. 330). An authorized surety may act as surety for the accused (principal) to satisfy this bail obligation (C.Cr.P. art. 323). When an accused fails to appear and when statutory notice is given, the court may forfeit the bond. Both the surety and the agent must be given notice of the forfeiture within sixty days (La.R.S. 15:84, 15:85). The forfeiture may be set aside in the courts of limited jurisdiction within any time prior to ‘collection’ (La.R.S. 15:84 (a)(3)) and in district courts within six months (La.R.S. 15:85 B). During the period of time both before and after forfeiture the surety is accorded the right to arrest and ‘surrender’ the accused principal (C.Cr.P. arts. 340, 339), and be relieved of the surety obligation. In addition, the surety is protected from forfeiture when the principal is prevented from appearing because of illness or incarceration (La.R.S. 15:87).

“In light of the nature of the relationship of the commercial surety to a judicial proceeding, a contractual relationship in which the surety for a fee voluntarily enters the proceeding with knowledge through article 337 that it is not entitled to actual notice of reassignment, it hardly is in the same due process-notice posture of a civil defendant against whom a civil action is instituted. The surety is informed at the outset when it voluntarily enters the judicial proceeding of the consequences of the breach of the bail undertaking by the principal. The surety is not in a position analogous to the known beneficiary of a trust as to whom no steps are taken to notify of the institution of an action affecting his property (Mullane v. Central Hanover Bank and Trust, 339 U.S. 306 [70 S.Ct. 652, 94 L.Ed. 865] (1950)). Neither is it in an analogous position to that of a defendant subject to pre-judgment seizure of wages with no quick remedy to correct error (Sniadach v. Family Finance Corp., 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969)), nor to a defendant subject to prejudgment seizure of movables by replevin instituted by a clerk, (Fuentis v. Shevin, 406 [407] U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 556] (1972)). Compare Mitchell v. W. T. Grant, 416 U.S. 600 [94 S.Ct. 1895, 40 L.Ed.2d 406] (1974) (holding Louisiana sequestration constitutional); Buckner v. Carmack, [272] 270 So.2d 326 (La.1973), appeal dismissed [417 U.S. 901] 94 S.Ct. 2594 [41 L.Ed.2d 207] (1974), and Hood Motor Co. v. Lawrence, 320 So.2d 111 ([La.] 1975) (upholding Louisiana executory process) and D. H. Overmyer Co. v. Frick, 405 U.S. 174 [92 S.Ct. 775, 31 L.Ed.2d 124] (1972) (cognovit note authorizing entry of judgment without service of process or notice not per se viola-tive of due process requirement of prejudgment notice).

“The surety in Louisiana is given substantial ability to defend its interest: the surety has notice of the initial appearance and can easily determine from the public records whether the principal appeared or the matter was continued; the surety as well as its agent, is given notice of the forfeiture; the surety is given the extraordinary right to arrest and surrender the principal before or after forfeiture; the surety until either collection of the forfeiture or six months may set aside the forfeiture; and finally the commercial surety voluntarily and for profit, enters á judicial proceeding with knowledge of the nature of the bail undertaking.

“The bail undertaking and forfeiture is fundamentally difference from an ordinary civil matter insofar as constitutional due process protection. The surety in effect voluntarily intervenes in an ongoing judicial proceeding. Once a proceeding has been commenced there is no constitutional requirement that parties receive notice of every event detrimental to them. For example, .the civil defendant receives citation and service (C.Civ.P. art. 1701) which cuts off significant dilatory and declinatory objections (C.Civ.P. art. 928) or of the time for confirmation of the default (C.Civ.P. art. 1702). The defendant does not even get notice that a judgment has been obtained against him, if service of citation was personal (C.Civ.P. art. 1913) thus resulting in the running of time for a motion for a new trial (C.Civ.P. art. 1974) and appeal (C.Civ.P. arts. 2087, 2123) without notice. Clearly once a party has been brought into a proceeding either voluntarily as here or by citation as in an ordinary proceeding, due process does not require that notice of every event which may, as a practical or legal matter, prejudice a party be required. Rockwood has cited no authority in support of such a proposition.

“The federal courts which have considered the question of whether a surety must get actual notice of a reassignment have found no such right. See e.g., Williams v. United States, 444 F.2d 742 (10th Cir. 1971); Babb v. United States, 414 F.2d 710 [719] (9th Cir. 1968); Western Surety v. United States, 51 F.2d 470 (9th Cir. 1931); National Surety Co. v. United States, 29 F.2d 92 (9th Cir. 1928); Cf. State v. Johnson, 342 So.2d 863 (La.1977) (accepting the same rationale as the federal courts as to the nature of the bond obligation.)”

For the foregoing reasons, the judgment of the trial court dismissing plaintiff-appellant’s suit, is hereby affirmed. All costs, both at trial and on appeal, are to be paid by appellant.

AFFIRMED.

A P P E N D I X

STIPULATION OF FACTS

ROCKWOOD INSURANCE COMPANY, represented by LEWIS O. UNGLESBY, the City of Baton Rouge, represented by Samuel R. Cicero, and State of Louisiana, represented by David E. Henderson, enter into the following stipulation of facts as regards the lawsuit between the parties:

ROCKWOOD INSURANCE COMPANY is authorized to do and doing business in the State of Louisiana. ROCKWOOD writes certain bail bonds for court appearances in the City Court of Baton Rouge. The Rules of these bonds are governed by Title 15, Section 84 of the Revised Statutes of the State of Louisiana. ROCKWOOD writes bonds that fall into two categories.

The categories of bonds before the Court are as follows:

1.

Certain bonds issued at the time of arrest and upon execution of the bond. A date certain is set by the City ordering the accused to appear before the Court at a time and place set on the release affidavit.

2.

Bonds written at the time of the accused’s release and a date certain given. The accused appears in Court on that date and makes its appearance known and it is noted in. the minutes and records of the Court. However, for many reasons, none of which are controlled by ROCKWOOD, the matter is rescheduled.

In situation two above, wherein the accused is ordered to appear on date certain, does appear, and is then rescheduled by the Court, ROCKWOOD is not notified of the new date. No new notice is sent to ROCK-WOOD regardless of the reason for the reappearance. When the individual fails to appear again at the rescheduled time, which is not necessarily limited to a single reappearance, but may be several appearances before he finally ceases to appear, ROCK-WOOD is never notified and the bond is forfeited.


text:
    Katie Hodges WING v. Francis W. WING.
    No. 82 CA 0012.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.
    Rehearing Denied Sept. 8, 1982.
    Lawrence A. Durant, Baton Rouge, for Katie Hodges Wing.
    William G. Whatley, Baton Rouge, for Francis W. Wing.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

This matter is before the court on an appeal from an adverse judgment on a custody rule.

Mrs. Katie Lesage (defendant-in-rule herein), former wife of Mr. Francis W. Wing (petitioner-in-rule herein), received a divorce judgment on July 14, 1980, which judgment also granted her temporary custody of their minor son pending a hearing on a separate custody rule, which had been filed by Mr. Wing and which is the subject of this instant appeal. After a hearing, custody was awarded to Mrs. Lesage. The only issue is whether or not the trial court erred in deciding this rule for custody.

In well written reasons for judgment, the trial judge found (in part) as follows:

“Petitioner and defendant met while defendant worked as a waitress. They began a relationship, dated, and married in 1976. They lived in Assonet, Massachusetts. The child was born December 29, 1976. The petitioner and defendant separated June 29, 1978 when defendant returned to Baton Rouge with the child.

“Petitioner was not really sure what the status of his marriage was at that time although defendant told him she had returned to Baton Rouge to see a son by a previous marriage. A series of events began, including trips to and from Assonet which culminated in the final breakdown of the relationship and divorce.

“Defendant is presently married to Lawrence Lesage. Mr. Lesage is employed at Exxon earning $36,000.00 per year. His hours are 7 a. m. to 3:30 p. m. Defendant and Mr. Lesage have no extraordinary outstanding debts. They live in a three bedroom frame home on two acres in a country atmosphere near Greenwell Springs and Sullivan Roads.

“Defendant and Mr. Lesage plan to purchase a home in the same area built by Mr. Lesage’s grandfather. This five bedroom home will be renovated by Mr. Lesage. It rests on three and one-half acres one mile from their present home. A creek runs through the property.

“Mr. Lesage has attended St. Alphonsus Catholic Church for almost fifty years and since his marriage to defendant has attended regularly. Defendant is taking instructions in the Catholic faith and attends church now. The child attends Comite Baptist Church in a pre-school class three times per week from 9:00 a. m. to 2 p. m. Defendant transports him to school. The child will attend St. Alphonsus school in January, 1981 because he will be transferred from the Baptist to Catholic school. He also attends church services with his mother and Mr. Lesage.

“Although defendant worked to November 1979, she ceased working to be with her child because Mr. Lesage is earning sufficient funds to support the family. She testified that her duties are cooking, cleaning, washing, and caring for her son and husband. She spends $100.00 per week on food, prepares three (3) meals per day including Mr. Lesage’s work lunches. On weekends the family usually eats out. She believes there is no reason why she cannot care for her child.

“Mr. Lesage corroborates defendant’s testimony. He testified that the child is healthy, developing, and happy. He described his relationship with the child as ‘beautiful’ and close companionship.

“Petitioner himself has testified defendant was a good housekeeper, her house is clean, the child is well-developed, healthy, intelligent, and had all the appearances of being well cared for.

“The Lesage home has been described as spotless, in order, and neat by five witnesses. They have also described the child as happy, neat, appearing well cared for, well developed, and adjusted. One witness would allow her own children to stay in the Lesage household. Another described how the child works with Mr. Lesage on his tractor and with his cattle.

“Defendant is thirty-three years old. She did not graduate from high school but has obtained her GED.

“Turning now to petitioner, he is age 39. He lives in Assonet which is forty-five miles from Boston and twenty-five miles from Cape Cod. He has an associate degree in Engineering, a B.S. in Industrial Technology, and part of a doctorate study in Business Administration from Northeastern College. He lives on 3.64 rural acres in a three bedroom home, actually located in Assonet Village with a population of 7000. He has been there sixteen years. Hilda Neal, petitioner’s mother, lives five miles away from Fall River, an exclusively residential area. He talks to her daily, sees her every third day. She mows his lawn, does dishes, is in good health, drives her own car, and lives with her sister. She knows the child well and use [sic] to care from [sic] him on weekends.

“If petitioner is awarded custody, he testified that his sixty-three year old mother who is retired plans to care for the child during the day while he works. If petitioner works at night, Mrs. Neal will have the child overnight. The child will be in the Christian Day Nursery, a private school one mile from Mrs. Neal’s home.

“Petitioner is in real estate. It requires much of his time and some odd hours. In the future, he intends to have employees to take care of late hour work to enable him to spend more time with the child. As the child gets older, petitioner would be able to take the child out when on business. Petitioner sees his five year old by a previous marriage on weekends.

“Petitioner jogs two (2) miles per day, participates in local politics, has served on the Assonet Board of Selectmen, Health, and Public Welfare, and as Police Commissioner.

“He used his degree in engineering working four (4) years at Raytheon as a manufacturing engineer in missile systems.

“His 1980 income through the third quarter was $15,000.00 to $20,000.00; as of May 30, 1980, he was in debt at least $40,000.00.

“Petitioner belongs to a church, has taught Sunday school, and believes in God.

“As has been stated, petitioner seeks a change of custody alleging defendant’s immorality, that is a ‘relationship with another adult male’, and marriage ‘all the while knowing full and well that she was still legally married to petitioner-in-rule, Francis W. Wing’. Further, petitioner alleges that defendant has failed to provide the child ‘with a proper and complete environment so that he may grow and develop as a human being’. Lastly, petitioner charges that defendant is ‘mentally and emotionally unstable so that the environment for raising said child is endangered, or made very difficult’.

“a) Immorality — a relationship with an adult male, and bigamy:

“From the testimony and deposition of petitioner (page 54 et seq.) it is obvious that petitioner relied on defendant’s marriage to Mr. Lesage apparently before the final divorce from petitioner. The Court is not convinced that defendant knowingly committed bigamy. She apparently was as confused as petitioner was when petitioner and defendant remarried after considering the possibility that his divorce from his previous wife may not have been effective. Further, there is no evidence to show any other immoral conduct sufficient to deprive her of custody.

“b) Failing to provide the child with a proper and complete environment:

“Petitioner admits that defendant has and can be an excellent mother. (Petitioner’s deposition, page 25, 26, and 57). Since defendant left him in June 1978, petitioner has learned very little of the relationship between defendant and the child; ‘All I know is what’s happened when I was with her.’ (deposition pages 25, 26, and 57). Further the testimony convinces the Court that the child has been well cared for and is presently in a stable, healthy environment.

“c) Defendant is mentally and emotionally unstable; the environment is endangered; made difficult:

“There is no doubt defendant has had a long history of emotional problems. But history is past, though it maybe [sic] a mirror of the future. Is it in this case? The Court finds not.

“The evidence of defendant’s conduct since June 1978, belies a claim of continued emotional problems. True, she began her adult life under stresses which led to conduct not usually accepted by society as the norm. But we cannot say that change is not possible. Defendant’s recent conduct indicates change.

“On November 21, 1980, the deposition of R. Dean Coddington, M.D., was taken. Dr. Coddington, chief of child psychiatry at LSU Medical Center, New Orleans, Louisiana, found the child to be healthy, normal, well-adjusted, developing well in the last one and a half years, reaching a normal stage. (Coddington deposition, pages 9-11).

“Dr. Coddington found defendant to be honest with him. He found no clear sign of any pathology upon evaluating her current mental status. (Coddington deposition, pages 13-14). Dr. Coddington in addition to his interview with defendant and the child, had access to the depositions of petitioner and defendant. (Coddington deposition, pages 16-17). Dr. Coddington was ‘particularly concerned about her functioning as a mother, and.the stability of the family right now.’ (Coddington deposition, page 18). His findings: T found no reason to say that she is not at least an average mother ... I saw no reason that she would have to be re-hospitalized in a mental hospital in the foreseeable future.’ Dr. Coddington was looking particularly for anything indicating ‘situations that are likely to cause pathology in a child. Cause anxiety or depression in a child. I didn’t find that.’ (Coddington deposition, pages 18-19). Dr. Coddington found no reason to suggest that a change of custody was necessary or mandated. (Coddington deposition, page 10). Much of the examination of Dr. Coddington by petitioner’s counsel employed facts not proven at trial or based on uncorroborated and denied assertions of petitioner. The examination did not, for that reason, damage the conclusions of Dr. Cod-dington. Apparently, Dr. Coddington was surprised, after reading petitioner’s depositions, to find defendant healthy, (Codding-ton deposition, pages 73-75). In fact, under questioning from petitioner’s counsel, Dr. Coddington volunteered that he felt petitioner had problems, ‘seemed like he didn’t have his act together ... his mental functioning is somewhat disorganized’. This was Coddington’s feeling after reading petitioner’s deposition. (Coddington deposition, page 105). Dr. Coddington’s written report to petitioner’s counsel contains nothing contrary to his testimony. (Lesage 1 attached to Coddington deposition).

“It is noteworthy that apparently there is some misunderstanding between petitioner and his mother as to her future role with the child. Mrs. Neal expects the child to live with her and see petitioner when she takes the child to visit petitioner. (Neal deposition, page 19). ‘He will have him whenever he wants him’. (Neal deposition, page 31).

“In Bordelon v. Bordelon, 390 So.2d 1325 (La.1980), the Supreme Court states that:

“ ‘Thus, the best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.’

“Considering all of the factors which must be taken into consideration in deciding custody matters, and considering the evidence in this case, both favorable and unfavorable to each party, and applying the ‘best interest’ test as required by Bordelon cited supra, in the present time frame, the Court is of the opinion that custody should remain with defendant.”

This court must give great weight to factual determinations made by the trial court, not only because the trial judge is in a better position to evaluate the witnesses, but there must also be a proper allocation of functions between the respective courts. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Howard v. Howard, 339 So.2d 1275 (La.App. 1st 1976).

For the reasons stated by the trial court which we adopt, the judgment of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    Mrs. Antoinette Ybos DAVILLA v. Lowell F. JONES.
    No. 13138.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Stephen M. Chouest, O’Keefe, O’Keefe & Berrigan, New Orleans, for plaintiff-appel-lee.
    Philip E. James, Jr., Andrew I. Brown, Henican, James & Cleveland, New Orleans, for defendant-appellant.
    Before REDMANN, C. J., and AUGUSTINE and CIACCIO, JJ.
   REDMANN, Chief Judge.

A lessee appeals from a judgment of eviction for non-payment of nine months’ rent. The question is whether the circumstances of his dealings with the lessor relative to withholding the rent to make necessary exterior wall repairs prevent the lessor from evicting him. We conclude that they do and we therefore reverse.

It is not disputed that the walls require repairs and that those repairs are the obligation of the lessor. The lessor’s contention that the lessee did not show that the repairs are indispensable is inconsistent with her letter of June 1, 1981, which implicitly concedes the necessity of the work by agreeing to have it done.

The lessee had written the lessor February 4, 1981, detailing wall and roof problems, and advising that, unless repairs were commenced within two weeks, the lessee would have the repairs done and deduct their cost from future rents of $720 a month. By mid-April the lessor repaired the roof at a cost of $2,500. Lessee’s April 22 letter asked the lessor’s intentions concerning the wall problem, and advised that in the absence of a solution “we shall continue withholding rent until we have accumulated enough to employ our own contractor.” Lessee’s April 27 letter referred to a telephone conversation and promised that lessee would get prices from one or more contractors for the north wall work. Lessee on May 21 sent to lessor a. $30,850 bid, and on June 1 sent a $36,736 bid with a letter noting that rainwater through exteri- or walls was an urgent problem, “and unless we hear otherwise from you within one week we shall assume you want us to have the job done and deduct from rent payments.” Also on June 1 lessor wrote to lessee, confirming a telephone conversation of that day to “request that you do not give a work crew permission to start on the work at 333-35 Bourbon street. I would like to get at least one more reasonable estimate, after which time I will take necessary action in getting the work completed. But you must allow me a reasonable amount of time. SO I DO NOT AUTHORIZE THE WORK TO BE STARTED AT THIS TIME.”

The lessee testified that thereafter some contractor came to see the property to quote a price to the lessor, but that he heard no more from that contractor. The lessor testified that she called two other contractors for an estimate but never received one.

Nothing else occurred until July 10, when lessor served an eviction notice upon lessee, alleging non-payment of rent from March 1, 1981.

In Lake Forest, Inc. v. Katz & Besthoff, 391 So.2d 1286, 1288 (La.App. 4 Cir. 1980), this court concluded that “a lessor cannot effectively prevent the making of the repairs and thus deprive the lessee of one of his rights,” namely the right under La.C.C. 2694 to make necessary repairs and deduct their reasonable cost from the rent. Lake Forest is similar to our case in that our lessor by her June 1 letter sought to stop our lessee from making the repairs and he acquiesced. We conclude, on the civil law estoppel doctrine of venire contra fac-tum proprium non valet (see Sanders v. United Distributors, Inc., 405 So.2d 536 (La.App. 4 Cir. 1981), writ refused 410 So.2d 1130), that our lessor cannot be allowed to evict our lessee for failing to actually spend the withheld rent on repairs when it was the lessor herself who importuned the lessee to delay those repairs. Nor can the lessor evict for the rents withheld after the lessee’s February 4 letter because the parties were at all times negotiating for the repairs that the lessee could under the law have made without attempting to accommodate to the lessor’s desire to have them done as inexpensively as possible, when at no time did the lessor demand that the rents be paid nor herself undertake the wall repairs.

The lessor argues that Lake Forest is distinguishable in that there the lessee had in fact resumed payment of rents. We deem that difference not controlling. The fact is that the lessor never undertook the wall repairs, and the law is that the lessee therefore had (and has today) the right to do so, and the delay in the lessee’s doing so is attributable to the lessor and is therefore not available to the lessor as a ground for eviction.

Reversed.

      . Litvinoff, Louisiana Civil 'Law Treatise, Obligations, I § 88, n. 32, translates “no one is allowed to go against (the consequences of) his own acts.”