author: CHEHARDY, Judge.

text:
    Naheem George NASSAR, Jr. v. H. Coy FLETCHER, and Liability Insurance Carrier, Allstate Insurance Company.
    No. 12427.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Robert R. Faucheux, Jr., Reserve, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, Lloyd T. Bourgeois, Thibodaux, for defendants-appellees.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Naheem George Nassar, Jr., appeals a district court decision in his favor and against the defendants, H. Coy Fletcher and Allstate Insurance Company, in soli-do, in the sum of $25,303.72, together with legal interest thereon from the date of judicial demand until paid. Costs were also assessed against the defendants in the trial court.

This case arose out of a two-car accident which occurred on April 17, 1977 between the plaintiff and Fletcher, one of the defendants, when their vehicles collided on Louisiana Highway 44. The accident happened when Fletcher’s vehicle skidded across the highway division line and into the path of the plaintiff’s automobile. The plaintiff has alleged personal injuries as a result of the collision and the defendants answered the suit with a general denial and also urged the defense of contributory negligence on the plaintiff’s part.

After a trial on the merits of the case it was submitted to a jury who rendered a verdict in favor of plaintiff in the following amounts:

Pursuant to that verdict, the trial court ordered the defendants to pay the plaintiff $46,303.72 with interest at the legal rate from the date of judicial demand.

On December 1,1978, the defendant filed an application for a new trial, stating the judgment was contrary to the law and to the evidence because the verdict arrived at was against the weight of evidence and also alleging that, considering the evidence as adduced at trial, it was clear the jury ignored the evidence presented to substantiate lost wages and it awarded an excessive amount for pain and suffering, psychological and psychiatric damages.

Defendants’ motion for a new trial was granted and plaintiff’s applications for supervisory writs from the granting of the new trial were denied by both this court and the Louisiana Supreme Court. In accordance with stipulations by counsel for both plaintiff and defendants, trial by jury then was waived and the case was submitted for trial by the judge on the record of the previous jury trial.

Following that submission, the trial judge rendered judgment in favor of the plaintiff and against the defendants, in solido, in the sum of $25,303.72. As we understand that judgment, it awards the same amounts for medical expenses and property damages as did the jury, but reduced the jury awards for lost wages from $20,000 to $9,000 and for general damages from $25,000 to $15,-000.

Plaintiff has appealed. In this court he contends the trial judge’s awards for lost wages and general damages are inadequate and should be increased to the amounts awarded by the jury.

Plaintiff argues that for the year of the accident he did not work from April until December and, therefore, since he was making $8.20 per hour at the time of the accident, he lost approximately $10,500 in earnings as a result of his injuries. Our review of the record, however, reveals it was the opinion of the plaintiff’s treating physician, Dr. Lawrence J. McManus, that the plaintiff could have returned to his former job in September of 1977, five months after the accident. Although plaintiff complained of pain subsequent to September of 1977, Dr. McManus also testified that in November of 1977 the plaintiff had improved to such an extent he could have done even more laborious and harder work than he had been performing at the time of the accident. Therefore, even if the court awarded damages up until that date, plaintiff should not have recovered more than approximately $9,000 in lost wages.

In regard to loss of future earnings, also claimed by the plaintiff, the court said in Watson v. Hartford Acc. & Indem. Co., 339 So.2d 480 (La.App. 2d Cir. 1976), that to support an award for future earnings, plaintiff must prove his loss with reasonable certainty; and speculation, probabilities and conjecture cannot form the basis for the award.

In Wilson v. Magee, 359 So.2d 315 (La. App. 4th Cir. 1978), this court also said that in order to recover for loss of future earnings or earning capacity, one must show with some degree of precision what he or she would have earned if it were not for the accident. At the time of trial the plaintiff had returned to work at an equivalent pay level to that which he was earning prior to the accident. Although his foreman testified he had been assigned different duties as a result of his alleged incapacities in areas such as lifting, it was not shown that he had sustained any reduction in pay at all. Furthermore, none of the physicians who examined Nassar assigned any percentage of permanent injury to him.

The opinion of the occupational therapist who tested the plaintiff was somewhat in conflict with that of the examining physicians. She stated that while performing a number of activities in her presence (which took place on only one occasion), she felt he lacked agility and spontaneity, and in some instances, such as in stooping or crouching, he lacked endurance. The plaintiff also voiced complaints of pain during her evaluation of him. In spite of this testimony, however, the trial judge was free to consider the testimony of the physicians and to give such testimony more weight than that of the therapist due to their greater training and expertise. Accordingly, the plaintiff failed to prove to any degree of precision what he would have earned had it not been for the accident, nor did he present any objective evidence that he was incapable of competing in the open job market.

Regarding the trial judge’s award of $15,000 for pain and suffering, from the medical testimony adduced at trial his injuries consisted mostly of concussion, cervical strain, lumbar strain and headaches. There was some conflict of opinion among the physicians as to the interpretation of certain x rays of Nassar and whether he had sustained a chip fracture of the atlas, but it was agreed that even if such a small fracture had been present, it was not medically significant, although it may have contributed to some of the pain alleged by the plaintiff. Accordingly, this court cannot conclude the district court judge abused his much discretion in setting the award for general damages in this case. Furthermore, an award for psychological or psychiatric damages was properly denied because there was virtually no evidence presented to prove such damages.

In summation, we will also note that on review we found no manifest error on the part of the district court judge in regard to his findings of fact in this case and therefore find no basis for disturbing those findings.

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

AFFIRMED.

      . Modified on other grounds. 367 So.2d 314 (La. 1979).


source: Caselaw Access Project

license: Public Domain

text:
    Teresa WOODARD v. J & M SEAFOOD RESTAURANT and Allstate Insurance Company.
    No. 5-203.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Weigand & Siegrist, Richard A. Weigand, New Orleans, for plaintiff-appellee.
    Donovan & Lawler, James L. Donovan, Noel E. Vargas, II, Metairie, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendants, J & M Seafood Restaurant and Allstate Insurance Company, appeal a district court decision of March 11, 1981 in favor of Teresa Woodard and against the defendants.

This appeal emanates from a claim for workmen’s compensation benefits filed in the district court on July 17, 1979. Pursuant to that claim, judgment was rendered by the district court on May 20, 1980, and the plaintiff was awarded 25 weeks of compensation at the rate of $93 per week, plus legal interest on each installment from the date it was due until paid; all medical expenses incurred during this period; and all costs of this proceeding, including the testifying fee of the expert medical witnesses, which was set at $150.

On May 23, 1980, the plaintiff filed a motion for amendment of judgment and a memorandum requesting the district court to clarify the judgment in that matter, alleging that the parties were unsure as to which 25-week period the court was referring. In addition, it stated that the parties were unsure as to whether the court intended this judgment to include future compensation and medical expenses.

Subsequently, on September 30, 1980, the court rendered an amended judgment in the matter, stating that it had been the intention of the court to award 25 additional weeks of workmen’s compensation, starting from the time of the last payment.

On October 3, 1980, the plaintiff filed a motion for a new trial, alleging she had discovered, since the trial, new evidence important to her cause which she could not, with due diligence, have obtained before the trial of this matter. In particular it alleged that on September 23, 1980 she was admitted to a hospital where she had undergone surgery to her lower back and neck, which revealed that she had a ruptured disc caused by the accident which she previously suffered while in the course and scope of her employment with J & M Seafood Restaurant. The motion for new trial was supported by the plaintiff’s affidavit and medical report.

Judgment was rendered on October 29, 1980 granting a new trial for the submission of further medical evidence. Pursuant to this judgment, and after taking additional testimony on February 26, 1981, the district court on March 11, 1981 rendered an amended judgment finding the plaintiff was then disabled and ordering the defendants to continue making compensation payments pending further orders of the court. It also ordered those parties to pay all medical bills related to the plaintiff’s injuries, costs and the testifying fee of the expert. It is this judgment which is appealed.

Defendants argue on appeal the judgment amendment of September 30, 1980 was an impermissible one under the terms of C.C.P. art. 1951 because it changed the substance of the judgment without the prerequisite request for a new trial being filed. Defendants also argue, therefore, that since the record indicates notice of the only valid judgment was sent to plaintiff and defendants on May 21, 1980, under the provisions of C.C.P. art. 1974, May 30,1980 would have been the last day plaintiff could effectively apply for a new trial. Defendants conclude that since plaintiff did not file a motion for a new trial until October 9, 1980, the statutory delay had long expired.

We note the difference between a motion for a new trial and a motion to amend a judgment.

C.C.P. art. 1974 establishes the delay for applying for a new trial shall be seven days, exclusive of legal holidays, and this delay commences to run on the day after the judgment was signed. It further establishes that when notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, this notice. Jurisprudence of this State also requires that a motion for a new trial must be timely filed in order to be effective. Bunge Corporation v. Emmons, 320 So.2d 230 (La.App. 3d Cir. 1975).

C.C.P. art. 1951 provides, however, that a judgment may be amended by the trial court at any time with or without notice, on its own motion or motion of any party, to alter the phraseology but not the substance of the judgment as to correct errors of calculation.

Primarily the motion for a new trial is timely filed from the amended judgment of September 30, 1980, but that is not the judgment which controls the time limitation. The time limit runs from the original judgment of May 23, 1980. From that judgment the motion for a new trial is too late.

We call attention to the fact that the motion to amend the judgment does not stop the execution or definitiveness of the judgment sought to be amended. This is so because only non-substantive amendments can be made. If the amendment is substantive, it could only be made by a motion for a new trial. We refer for example to the cases of Hebert v. Hebert, 351 So.2d 1199 (La.1977); Mitchell v. Louisiana Power & Light Co., 380 So.2d 743 (La.App. 4th Cir. 1980); Flack v. Federal Crop Insurance Corporation, 309 So.2d 760 (La.App. 3d Cir. 1975). We also refer to C.C.P. arts. 1974, 2087, 2123 and arts. 2088 and 2121.

Accordingly, we proceed to a consideration of the amendment of judgment sought to be made. The amended judgment does not change any substantive rights of the parties, it simply fixes the date upon which the benefits awarded are to begin. R.S. 23:1221 sets out that the benefits are to be paid “during the period of disability” and the amendment simply states when that period begins, and correspondingly shows when it will end. Accordingly, we hold that the amended judgment of September 30, 1980, simply clarified but did not change the substance of the original judgment rendered by the trial court on May 20, 1980.

If the appeal before us was an ordinary type of proceeding we would be required to rule that the motion for new trial came after the appellate period had elapsed and the original judgment was final. However, this is a proceeding in workmen’s compensation benefits and under the provisions of R.S. 23:1331 either party has the right to seek modification of a judgment which granted benefits. The policy in establishment of benefits under the provisions of the compensation cases is that its provisions should be liberally interpreted in favor of the workman. See Landreneau v. Liberty Mutual Insurance Company, 309 So.2d 283 (La.1975). Judgments in compensation cases are treated differently from ordinary judgments.

The judgment appealed from comes from a motion for new trial rather than the specific provisions of R.S. 23:1331, but the grounds urged for a new trial are those grounds which justify a reopening under Section 1331. The plaintiff had been issued an award of benefits, and it was not until after trial that she underwent an operation which disclosed that she was still suffering from a back injury based upon a ruptured disc caused by the work-related accident. We note that the application for a new trial was filed less than six months after the rendition of the May judgment, but the hearing thereon was held after the six-month period had elapsed. There is no attack upon the determination of entitlement to benefits in that judgment. It would be contrary to judicial economy to set aside the proceedings under the motion for a new trial and remand for a trial for benefits under the provisions of Section 1331. Justice to the parties requires that we consider those proceedings in the same light as proceedings under 1331 and accordingly we affirm the judgment. See C.C.P. art. 2164.

For the reasons assigned the judgment appealed is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Cecelia MEYERS v. GULF INSURANCE COMPANY, et al.
    No. 12808.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Bienvenu, Foster, Ryan & O’Bannon, Leonard A. Young, Henican, James & Cleveland, Joseph P. Henican, III, New Orleans, for defendants-appellees.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff appeals a summary judgment as to one defendant and also appeals an adverse ruling on exceptions of no cause of action and res judicata in favor of a co-defendant.

This lawsuit arose because of injuries sustained by Cecelia Meyers when the St. Charles Parish School Bus in which she was a passenger was struck on the right rear side by a truck as the bus was attempting to turn into a Burger King parking lot. Meyers sued Burger King alleging negligence in soliciting school bus business but failing to make its driveway wide enough to accommodate a bus. The District Court granted a summary judgment in favor of Burger King from which plaintiff appeals.

Meyers also sued the St. Charles Parish School Board, its bus driver Shirley Friloux, and Gulf Insurance Company. A motion for summary judgment was also granted in favor of these defendants and no appeal was taken. Plaintiff then amended her petition alleging that the school bus was not insured and Gulf owed uninsured coverage: Gulf’s exceptions of no cause of action and res judicata were maintained from which plaintiff now appeals.

This record consists of pleadings, depositions, and affidavits. No reasons were given for the lower court judgments. Plaintiff failed to file a brief or appear at the time of argument, but the morning of the hearing did file notice that the appeal was not abandoned.

It is undisputed that plaintiff was an employee of the School Board and was on its bus in the course of her employment. Plaintiff’s petition alleges Burger King was negligent for:

“Soliciting school bus load business, but failing to make driveways wide enough for entrance of such large vehicles from the highway unto (sic) the premises owned and operated by Burger King.”

Burger King filed two affidavits in support of its summary judgment motion. The first was by William Hyde, a Vice President responsible for advertising, who stated Burger King never solicited school bus business. The other affidavit by Joe Robbins, a Vice President of Burger King’s parent corporation, stated he was familiar with the design and construction of Burger King properties and this particular location was wide enough to accommodate large school busses.

By deposition the bus driver stated the school bus was 90% onto the restaurant property and moving forward when the collision occurred. She also said there was adequate room for the bus to enter and had driven similar busses into the same Burger King on numerous occasions without difficulty. She added: “I drove into that Burger King with my other bus, without power steering, made the turn very well, and this bus had power steering, and it was very easy to handle.”

Plaintiff was deposed and confirmed that the bus was moving forward when the collision occurred. She also admitted the bus had no difficulty turning into the driveway and was almost completely off the highway at the time of the accident.

Plaintiff filed an opposition to the summary judgment without a memorandum. Attached to the opposition was an affidavit from plaintiff’s counsel which stated he personally viewed the area and “. .. (i)n his judgment, the driveways were not wide enough to accomodate buses, turning into the parking lot from the right lane of travel.”

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. The mover for summary judgment has the burden to establish no material factual issue exists: inferences drawn from the facts contained in the record must be viewed in the light most favorable to the opposition to the motion. Mashburn v. Collin, 355 So.2d 879 (La.1977). If the documents appear sufficient to resolve genuine issues of material fact, the burden shifts to the opposing party to present evidence that there is a genuine issue of material fact to be resolved.

LSA-C.C.P. Art. 967 requires that opposing affidavits be made on personal knowledge and set forth facts admissible in evidence. The affidavit of plaintiffs attorney falls short of this requirement because it does not show affirmatively that the affi-ant is competent to testify to the matters contained therein. This requirement is met if the affidavit sets forth facts which would enable a court to make a determination as to the competency of the affiant as a witness to the material facts at issue. Plaintiff’s attorney does not allege he is an engineer, architect, contractor, surveyer, etc. and his “judgment” does not controvert any of the material facts. The failure of the opposing affidavit to affirmatively show that statements were made on personal knowledge does not prevent judicial consideration of the affidavit; however it is clear plaintiff’s attorney’s affidavit is not based on personal knowledge of the facts.

Even though plaintiff’s counter affidavit is without substance, the moving party must initially establish there is no genuine issue of material fact and judgment should be entered as a matter of law. Harris Mortgage Corporation v. Johnson, 383 So.2d 801 (La.App. 1st Cir. 1980).

Plaintiff’s deposition admits the bus driver had no difficulty turning into the parking lot and was almost completely in when the accident happened. The bus driver left no doubt that the driveway into the restaurant was adequate based upon personal experiences at the same location on numerous prior occasions. This testimony coupled with the affidavits eliminates any genuine issue of material fact that the Burger King entrance was wide enough to accommodate the school bus.

There is no evidence Burger King solicited school bus business. Defendant’s challenged affidavit to the contrary was not rebutted or even mentioned in plaintiff’s opposing affidavit.

The pleadings, affidavits, and depositions convince us the motion for summary judgment was sufficient to resolve all genuine issues of material fact and that Burger King could not be held liable and is therefore entitled to judgment as a matter of law.

Gulf Insurance Company was made a defendant as a result of a policy issued by Select Insurance Company, a member of the Gulf Group. The policy provided coverage to the St. Charles Parish School Board, but excluded liability coverage of co-employee to a fellow employee. Gulf submitted an affidavit which stated the bus driver was within the course of her employment at the time of the accident. The Gulf policy did not provide coverage because plaintiff, a co-employee, was also within the scope of her employment when injured. The District Court granted summary judgment in favor of Gulf Insurance Company and no appeal was taken. Subsequently, plaintiff filed an amended petition alleging Gulf did not provide uninsured coverage which was owed to plaintiff. Gulf responded with an exception of no cause of action and also claimed the matter was res judicata and the exceptions were maintained.

The Gulf/Select policy is in evidence and clearly shows that such coverage was provided. For plaintiff to come under the uninsured provisions of the policy she must be an “insured” under the liability provision. Robertson v. Cumis Insurance Co., 355 So.2d 1371 (La.App. 3rd Cir.), Writ denied, 357 So.2d 1153 (La.1978). Under Select’s policy an insured is any person occupying an “insured highway vehicle” which is described in the schedule and “to which the bodily injury liability coverage of the policy applies.” We are not concerned with bodily injury liability since that issue was decided by the summary judgment which was not appealed and is therefore final. It follows that if the bodily injury coverage is not applicable then plaintiff was not an “insured” and the lower court judgment maintaining the exception of no cause of action was proper.

The judgments of the District Court as to both defendants are affirmed with appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Lewis E. HENDERSON v. DIAMOND DATSUN, INC.
    No. 12812.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Deutsch, Kerrigan & Stiles, Daniel A. Smith, New Orleans, for defendant-appellant.
    Lewis E. Henderson, in pro. per.
    Before BARRY, AUGUSTINE and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiff, Lewis E. Henderson, sued Diamond Datsun, Inc. claiming a faulty paint job and was awarded damages. Defendant appeals urging it was not negligent, that plaintiff’s claim had prescribed, and the award was based upon inadmissible evidence.

Plaintiff had been in an automobile accident and brought his automobile to the defendant for repair work. After several unsuccessful attempts to paint-the repaired areas, in February or March of 1979 defendant agreed to repaint the entire vehicle without cost to plaintiff. In September, 1980 plaintiff noticed “cracks” in the paint and took the car back to the defendant, but was informed nothing further would be done.

DEFENDANT’S NEGLIGENCE

Plaintiff testified cracks in the paint covered the entire top of his automobile. He said prior attempts to paint the repaired areas resulted in different shades of blue and defendant’s agreement to paint the entire car was to correct that problem. In May, 1980 another dealer did touch-up work on the rear hatch, but plaintiff stated the scratches were not evident at that time. He said the car was parked in his carport at home and during the day it was kept in an open lot.

James Connor, an expert in paint analysis, stated the abrasive marks were cut into the surface of the paint “by some object which was harder than the paint and which moved in a circular or rotary motion.” He said the paint “was not at fault in composition, but something at the time that the paint was applied, or near the time it was applied, before it had hardened to maximum hardness, there was abrasive degradation of the surface of the paint through abrasive action of some type in which a rotary motion was definitely detected.” He noticed the hood and roof had lost gloss due to sunlight which caused those areas to be lighter and duller than the rest of the car and the scratch marks were more noticeable. Connor viewed 38 photographs in evidence and stated they represented the condition of the automobile when he examined it. It was his opinion the abrasions were put on because the paint wasn’t cured. He said the scratches were originally masked by the gloss of the paint and concluded they occurred when the paint was applied.

A report from Pittsburg Testing Laboratory, identified by Connor, shows “apparent scratches or linear narrow abraded marks in profuse numbers ...” It said part of the paint was delaminating indicating no primer was applied and there was only a thin film of paint over bare metal. The report states the scratches showed a clear circular pattern, with some parallel to each other which were “definitely produced through mechanical abrasion (possibly through buffing), resulting in these numerous linear and curved scratches being deeply cut into the soft blue surface coating, to produce a visually evident surface defective pattern, when visually inspected from a distance of six feet, and closer.” As a result, plaintiff’s expert stated the depth of the scratches plus the evidence of mechanical scratch patterns indicate they existed from the time the automobile was re-painted by the defendant.

The defendant’s only witness, Tom Dis-con, defendant’s body shop manager, was accepted as an expert in the field of auto painting. He testified generally as to the procedure in painting an automobile and said the average life of a paint job in this climate is three years. However, he was not employed by the defendant when plaintiff’s vehicle was painted and could not shed light on what happened. There was no denial that the abrasive marks were put on the car by some mechanical device.

Defendant argues negligence is never presumed and plaintiff failed to carry his burden of proof. Defendant maintains the paint did not fail and the discoloration resulted from normal wear and tear (exposure to sunlight).

Plaintiff responds that his burden was to present evidence showing it was more probable than not that the damage was caused by the conduct of the defendant and circumstantial evidence is sufficient if it excludes with a fair amount of certainty other reasonable hypotheses. Townsend v. State, Department of Highways, 322 So.2d 139 (La.1975). Plaintiff argues the defendant offered no reasonable explanation how the abrasions occurred and did not produce the body shop manager or the painter who were responsible for the paint job.

We are not favored with written reasons for judgment, however, we can only conclude the Trial Judge found the defendant negligent in the preparation and painting of plaintiff’s vehicle. That was the conclusion of plaintiff’s expert based upon the laboratory analysis and this evidence was uncon-tradicted.

The weight to be given an expert witness is determined by qualifications, experience in the field, and the facts upon which the opinion is based. The Trial Judge is given considerable discretion in accepting or rejecting expert testimony, Ford v. Dixie Buick, Inc., 400 So.2d 228 (La.App. 4th Cir. 1981), and his determination should not be reversed absent manifest error, Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir. 1980).

We feel the plaintiff succeded in proving the defendant’s fault was the most likely cause of the damage and there is nothing else in this record which can reasonably be ascribed as the cause. Whether or not plaintiff’s evidence is circumstantial, it need not negate all other possible causes. South Central Bell Telephone Company v. Hartford Accident & Indemnity Company, 385 So.2d 830 (La.App. 1st Cir.), writ denied, 386 So.2d 356 (La.1980). We find no basis to disturb the trial court’s reasonable evaluation of the witnesses and will not disturb the resultant opinion as to defendant’s negligence.

PRESCRIPTION

Plaintiff’s car was re-painted in February, 1979. and this action was filed February 3, 1981. Defendant contends the discoloration resulted from a combination of paint deterioration due to sunlight and plaintiff’s failure to apply wax; accordingly, discovery of the damage was an event within plaintiff’s control and the one year liberative prescription applies. (Defendant mistakenly cited art. 1893.)

Plaintiff argues he was unaware of the scratches until September, 1980 which is within one year of his suit and cites Lucas v. Commercial Union Insurance Company, 198 So.2d 560 (La.App. 1st Cir. 1967):

“Until the damage is sustained, there is no cause of action against the tortfeasor. Since plaintiff has no claim until the cause of action has arisen, he must be conscious or aware, as would a reasonable person under similar circumstances, of both the tort and damage before he can sue, consequently prescription does not begin to run against him until he has knowledge of both said indispensible elements of his claim.” At p. 564.

Prescription does not begin to run until the plaintiff has knowledge of both the tort and resultant damages: until a cause of action has manifested itself with sufficient certainty to be capable of proof in a court of law. LSA-C.C. Arts. 3536, 3537. The doctrine applies only if plaintiff’s ignorance is not willful or results from his own negligence. Reed v. General Motors Corporation, 400 So.2d 919 (La.App. 1st Cir. 1981). Having concluded that the defendant negligently caused the abrasions on plaintiff’s vehicle, we are satisfied that these defects were not immediately apparent and plaintiff’s uncontradicted testimony that they went unnoticed approximately eighteen months is reasonable. Thus, we believe plaintiff’s cause of action did not manifest itself until the defects were discovered by plaintiff and therefore his suit was timely filed.

ADMISSIBILITY OF ESTIMATES

During plaintiff’s testimony he referred to repair estimates and the defendant objected on the basis of hearsay. The Trial Judge overruled the objection and plaintiff identified three estimates which were then allowed into evidence. Plaintiff argues the record contained other evidence on which the Trial Judge based his $750.00 award, such as photographs and the expert’s testimony. In Burns v. Dominique, 354 So.2d 763 (La.App. 4th Cir.), writs denied, 356 So.2d 1010 (La.1978) the estimator ceased doing business, could not be served, and estimated damages were permitted by the Trial Judge. Here, there is no showing why the estimates were not substantiated. Plaintiff’s expert did not mention the cost to re-paint plaintiff’s automobile and our view of the photographs tells us the car badly needs a new paint job but that doesn’t indicate what the cost would be. The damage estimates were introduced without corroboration or foundation and are inadmissible hearsay. Smith v. Doyle, 160 So.2d 791 (La.App. 3rd Cir. 1964). There was no basis for the Trial Judge to make an award for repairs and to do so was clearly wrong. Miles v. New Orleans Public Service, Inc., 393 So.2d 877 (La.App. 4th Cir. 1981). It is therefore necessary to remand for a determination of damages.

Defendant questions the $100.00 fee for plaintiff’s expert, however, this is within the clear discretion of the Trial Judge and should not be disturbed absent manifest error.

For the foregoing reasons this matter is remanded to the trial court for a determination of damages to be awarded plaintiff, and in all other respects is affirmed.

AFFIRMED IN PART AND REMANDED.


author: KLIEBERT, Judge.

text:
    Percy ROSEMOND v. AGRICO CHEMICAL COMPANY.
    No. 5-227.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Joel B. Dickinson, Joel B. Dickinson & Associates, Baton Rouge, for plaintiff-appellant.
    John W. Perry, Jr., Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-appellee.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Percy Rosemond brought this action against Agrico Chemical Company of Delaware (hereafter Agrico) for workmen’s compensation benefits arising out of a fall on March 3, 1978, sustained while working in the course and scope of his employment. The suit was filed on March 11, 1980. By way of an affirmative defense, defendant, citing LSA-R.S. 23:1209, plead prescription of one year in his answer.

After a partial trial on the merits, the district court dismissed the plaintiff’s suit.

The pertinent provision of the workmen’s compensation statute is LSA-R.S. 23:1209 which provides as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The first sentence of the statute bars suits for compensation benefit payments unless the parties have within one year of the accident or death of the employee agreed upon the compensation payments to be made or within one year of the accident the suit for payment of benefits has been filed. The next sentence provides an exception to this rule, i.e., where payments have been made the limitation against the filing of the claim for payments does not take effect until the expiration of one year from the time of making the last payment.

Clearly in this case, the claim was not filed within one year of the date of the accident. Further, the application of the two or three year limitation as the time period within which the claim can be filed are not present here and are not urged by the appellant.- Hence, the issue narrows itself to whether under the second sentence of the statute as above quoted there was an interruption or suspension of the one year limitation for filing of the claim. The plaintiff-appellant contends that since the suit was filed on March 11, 1980 and his employment was not terminated until March 15, 1979, the suit was timely.

Plaintiff’s contentions are based on a letter dated 2/28/79 sent to Rosemond by Agrico’s Manager of Industrial Relations which provided as follows:

“You were scheduled to work 7 a. m. to 7 p. m. shift on Monday, February 26 and 7 p. m. to 7 a. m. on Tuesday, February 27. Monday night at approximately midnight, you told your supervisor that you did not feel that you could do the job and you were hurting and were going home. You did not call nor contact the plant on Tuesday, nor did you report to work on Tuesday night at 7 p. m.
Based upon this circumstance, we have concluded that you intended to resign your position when you left the plant Monday night. Unless we hear from you immediately, we will process your termination as a resignation. In any event, this letter is to inform you that you are being placed on leave without pay until such time as the matter is resolved, but in no event later than March 15, 1979.”

When Rosemond failed to respond to the letter of February 28,1979, Agrico proceeded with the termination of the employment as though Rosemond had voluntarily resigned when he left the plant on February 26, 1979. Therefore, the last wages earned by Rosemond for which he was paid were earned on February 16, 1979.

When both sides had rested their case, except for a possible introduction of medical testimony by deposition, the trial judge pointed out to plaintiff’s counsel that in his view plaintiff’s claim was barred unless plaintiff could show that the wages were paid to him in lieu of compensation benefits. On appeal, plaintiff points to the case of Meche v. Gulf Coast Pre-Mix Trucking, Inc., 383 So.2d 77 (La.App. 3rd Cir. 1980) and contends the case fully supports his position. Although the law in that case supports the position that wages paid in lieu of compensation suspends the time limitations for filing the compensation claim, the facts of this case do not support the position that the wages earned and paid to the plaintiff were paid in lieu of compensation benefits. In order for the payment of wages to be considered as extending the time for the filing of the suit, those wages must have been paid under circumstances which show plaintiff would have been entitled to weekly compensation benefits except for the fact he was earning wages. Here the plaintiff testified that his back as well as his ankle was hurt in the March 3, 1978 accident and that he earned wages while working in pain. However, his testimony is not supported by the record. Doctor Schex-nayder and three employees of Agrico all testified that at the time of the injury plaintiff did not report any injury to his back.

Additionally, although Rosemond now contends that when his leg got caught he was standing on a railing and he fell four or five feet to a cement floor striking his upper back and neck, he previously reported to Agrico’s employees that he was sitting on the railing and when he went to get up his foot slipped and got caught causing injury to his ankle. He never reported a fall or injury to the back.

Also, in January of 1979, plaintiff in response to specific inquiries as to the reasons for his absenteeism, denied that the back pain which he contended was the basis for his absenteeism was work related. It is clear from this record, therefore, that the only injury sustained by the plaintiff on March 3rd, 1978 was a sprained ankle and that injury completely cleared within a few days. At no time were the wages paid to plaintiff after the March 3, 1978 accident earned while working in pain for injuries sustained in the March 3rd, 1978 accident. We hold, therefore, that any claim plaintiff may have had for weekly compensation benefits was barred one year from the date of the accident. Since the accident occurred on March 3, 1978 and the suit was not filed until March 11, 1980 the claim had been extinguished for more than a year at the time of its filing. Accordingly, the judgment of the trial court is affirmed, all costs to be paid by the appellant.

AFFIRMED.

      . The petition stated the fall was on April 20, 1978, but it has been stipulated by counsel that it occurred March 3, 1978.

      . The trial judge took the issue of prescription under advisement. If he did not uphold the plea of prescription, the case would be left open for the submission of medical testimony by depositions. He rendered judgment dismissing plaintiffs suit with prejudice without giving written reasons. We assume the dismissal was based on the plea of prescription.


author: KLEES, Judge.

text:
    Brenda Pisciotta, Wife of/and Joseph PISCIOTTA, et al. v. SEARS, ROEBUCK AND CO.
    No. 12879.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Marvin C. Grodsky, New Orleans, for plaintiffs-appellees.
    James A. Babst, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant.
    Before SCHOTT, KLEES and WARD, JJ.
   KLEES, Judge.

Plaintiffs in this action are the attorneys and their clients who were successful in a personal injury suit. They seek attorneys fees of 40% of an amount recovered by defendant, Sears, pursuant to an intervention filed in the personal injury suit. From an award of $8,000.00 in favor of Plaintiffs, Sears appeals.

Brenda and Joseph Pisciotta, plaintiffs herein, represented by George J. Roux and Marvin C. Grodsky, also plaintiffs herein, brought suit against various executive officers of Sears, among others. In due course a final judgment was secured against one of Sears executive officers and other defendants. Sears, successfully intervened in this action and recovered $20,494.01 in workers’ compensation; the same attorney who defended Sears executive officers also represented Sears in its intervention.

Defendants contend the trial court erred in awarding plaintiffs legal fees out of the amount recovered in the intervention. Plaintiffs, on the other hand, argue that Sears did nothing to recover on behalf of plaintiffs and intervenors other than to register its claim by filing a single pleading, the petition of intervention, and in fact actively opposed and attempted to defeat the plaintiffs’ claim. Plaintiffs claim that because the judgment secured a “fund”, which inured to Sears benefit and allowed it to recoup the compensation paid out, they should collect attorneys ' fees from this amount under concepts of unjust enrichment, quasi-contract or quantum meruit.

There have been several cases in this State which have confronted the issue raised in this appeal.

In Lyons v. City of Shreveport, 339 So.2d 466 (La.App. 2nd Cir. 1976), writ refused 341 So.2d 905 (La.1977) the evidence showed no extensive effort by plaintiffs on behalf of the city, which had intervened for recovery of compensation benefits paid; showed no reliance by the city on plaintiff’s efforts, and indicated that the parties’ positions and efforts were at least in some sense, adverse. Under those considerations, the court found that no recovery could be had under any of the conceivable theories, including negotio-rum gestio, unjustified enrichment, quantum meruit, or the fund doctrine. After a learned discussion of the law, the court concluded that: Plaintiffs have relied on Broussard, Broussard & Moresi, Ltd., v. State Auto & Casualty Underwriters, 287 So.2d 544 (La.App. 3rd Cir. 1973), writ ref., 290 So.2d 908 (La. 1974), and it is indeed, the only jurisprudence in Louisiana favorable to their position. However, the decision does no more than to reverse a trial court determination that a petition for quantum meruit attorney’s fees stated no cause of action and to remand the matter for trial. The Brous-sard court found specifically that the petition for attorney’s fees alleged “that State Auto merely intervened pursuant to its statutory authorization to proceed, and relied on Broussard, Ltd., to prosecute the claim, doing little or nothing towards the actual preparation and prosecution of State Auto’s demand.”

“Under the circumstances of the case, the plaintiff-attorney is not entitled to recover a fee from the employer of his client for services rendered by the attorney in a tort action brought against a third party tort-feasor resulting in recovery by the employer who intervened in the action, of workmen’s compensation benefits paid the employee.”

Broussard was discussed in detail and thoroughly distinguished by Lyons v. City of Shreveport, supra.

In Mire v. Travelers Insurance Company, 318 So.2d 93 (La.App. 3rd Cir.), writ ref, 322 So.2d 775 (La.1975), the same attorney represented executive officer defendants on behalf of Travelers and intervened on Travelers’ behalf to recover amounts paid under a separate policy covering the insured’s workmen’s compensation exposure. Approving the trial court’s reasons, the court noted that the overriding distinction between the case before it and other cases where quantum meruit attorney’s fees had been allowed was that the party from whom the fees were sought had been benefited by the services of the attorney. In the Mire case, Travelers had recovered on $21,000 on its intervention but had been made to pay $100,000 on its public liability policy. The court concluded that under the circumstances Travelers had not been enriched, so that recovery on a quasi contractual basis would not be possible. The very allegations in this case are to the effect that Sears’ interests were adverse to those asserted by petitioners in the tort suit. The proof and findings bear those allegations out.

The only conceivable theory upon which recovery could be granted in this case is that of unjustified enrichment. Any discussion of that theory begins with an assessment of the plaintiff’s impoverishment. See Lyons v. City of Shreveport, supra. Here, we find that plaintiffs suffered no impoverishment, it being their admission that they went to no additional expense or effort because of the intervention. The trial court suggests that impoverishment may occur on withdrawal of a compensation lien from the total award in a personal injury suit and the concomitant reduction in attorneys fees. But such a withdrawal cannot by any means serve as actionable impoverishment, for it was stipulated that plaintiffs’ 40% fee was to be based upon the recovery. Neither the original plaintiffs nor their attorneys ever had a property right in the personal injury recovery except insofar as it exceeded an amount necessary to provide reimbursement to Sears of compensation benefits already paid. La.R.S. 23:1103.

We are additionally convinced of this position in the language expressed by the United States Supreme Court on an analogous issue under the Longshoremen’s and Harbor Workers’ Compensation Act, Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74, 100 S.Ct. 925, 63 L.Ed.2d 215 (1980). The court ruled that a stevedore is, under the legislation, never required to make any contribution toward an injured longshoreman’s legal expenses in prosecuting a negligence action against a third party.

“Finally we return to the original basis for the rule that a stevedore should not be required to pay a portion of the longshoreman’s expenses in his suit against the ship owner. The compensation award was intended to be an immediate and readily available payment to the injured longshoreman. By receiving this payment, the longshoreman was not for-closed from pursuing an action against the ship owner. At the same time he was not entitled to double recovery, and the stevedore would be reimbursed in full for his compensation payment. The result we reach enables the longshoreman to recover an amount no less than that which he would receive through an ordinary negligence action, and also immunizes the stevedore from liability in connection with the third-party action. If we were to accept the petitioner’s view, an injured longshoreman would unti-mately receive a sum equal to the full amount of his recovery against the ship owner, and in addition, a supplement consisting of the stevedore’s contribution to the longshoreman’s legal expenses. This supplement would represent a windfall in excess of the amount the longshoreman received as compensation for the injuries he suffered.”

Where Sears’ intervention has put plaintiffs to no additional expenses or effort, and where there is no showing that plaintiffs or their attorneys would not have prosecuted Mrs. Pisciotta’s claim for the net recovery actually received or for the fee received by the attorney plaintiffs out of the net recovery, such an additional contribution by Sears as has been suggested is wholly unwarranted.

Accordingly, for the reasons assigned, the judgment of the trial court is reversed and there is judgment in favor of defendants, Sears, Roebuck and Company against plaintiffs Brenda Pisciotta, et al., rejecting plaintiffs’ demand. Costs are assessed to the plaintiffs.

REVERSED AND RENDERED.

      . The judgment was in favor of the attorneys only.


text:
    Leon RUDLOFF v. CHIEF ADMINISTRATIVE OFFICE and City Civil Service Commission.
    No. 12868.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Rehearing Denied May 19, 1982.

      Leon Rudloff, New Orleans, pro. per.
    Charles J. Willoughby, Asst. City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendants-appellees Chief Administrative Office.
    Ralph D. Dwyer, Jr., City Civil Service Commission of the City of New Orleans, New Orleans, for defendants-appellees Civil Service Commission of the City of New Orleans.
    Before SCHOTT, KLEES and WARD, JJ.
   KLEES, Judge.

Appellant, Leon M. Rudloff, is a Project Evaluation Supervisor in the Chief Administration Office of the City of New Orleans. From a denial of an EAP Merit Raise on March 30, 1981, he requested a hearing before the Civil Service Commission alleging that the denial was “made without cause, and discriminatory.” On April 7, 1980, he additionally responded that the nature of the discrimination was that his supervisor’s “treatment of his entitlement for the EAP raise constituted disparate treatment as opposed to his treatment of other employees, and at other times.”

A hearing regarding the denial of the merit raise and allegation of discrimination was begun on May 13th, but was continued so that a procedural ruling on the order of precedence of burden of proof could be made by the Civil Service Commission. The appointing authority filed an Exception of No Right or Cause of action alleging no timely and substantive compliance with detailed specification of acts of alleged discrimination and failure to designate the basis of alleged discrimination, as required by the rules of the Commission. Appellant filed Opposition to the Exception, and the Commission dismissed his complaint on June 10, 1981 finding appellant failed to allege prohibited discrimination under Rule II Section 4.1(c) of the Civil Service Rules, and that refusal to grant a discretionary raise is not a disciplinary action. Appellant requested a rehearing on the dismissal on June 29, 1981 and his motion was heard on July 9, 1981. At the July 9, 1981 hearing the Appellant in response to questions posed by members of the Commission indicated that race was the basis of the alleged discrimination. The Commission reinstated Appellant’s Complaint and instructed him that he had the burden of proof as to the allegation of discrimination. Additionally, appellant was charged annual leave for the time spent at the Civil Service Commission hearing on May 13th. From these various rulings Rudloff appeals.

The issues presented by this appeal are; whether a denial of a discretionary merit raise constitutes a disciplinary action within the Civil Service scheme; whether requiring an employee who alleges discrimination to carry the burden of proof as to the facts of the alleged discrimination is illegal; and whether an assessment of annual leave of an employee in appearance before the commission was proper.

DISCIPLINARY ACTION

It is clear from a review of the applicable law that the denial of a Merit Raise does not constitute a disciplinary action under the Civil Service scheme. Furthermore, only disciplinary actions can be appealed to the appropriate Commission, unless an allegation of discrimination is made. In the latter instance, all actions whether disciplinary or not are appealable to the appropriate Commission. Article 10, Section 8 of the Louisiana State Constitution of 1974 provides as follows:

(A) Disciplinary Action. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on apj)eal, as to the facts, shall be on the appointing authority.
(B) Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the employee.

Thus pursuant to the applicable language of Section 8, it is clear that only disciplinary acts and certain acts of discrimination are appealable to the appropriate Commission.

The determination as to what constitutes a disciplinary action is within the authority of the appropriate Commission through its rule making powers granted by Article 10, Section 10 of the Louisiana State Constitution. Furthermore, the Courts have consistently held that Rules of Civil Service Commissions have the force and effect of law. Rule II, Section 4.1(a) and (c) provide in pertinent part:

(a) Regular employees in the classified service shall have the right to appeal to the Commission from suspension, fine, dismissal, reduction in pay or demotion, to test the reasonableness of such action, (c) A classified employee discriminated against because of his political or religious beliefs, sex or race shall file a written statement with the Civil Service Commission containing the following information: . . .
4. The nature of the alleged discrimination. . .

A reading of these rules leads us to conclude that the denial of a merit raise does not constitute a disciplinary action within the Civil Service scheme.

Appellant attempts to rely on the Court’s decisions in Hays v. Louisiana Wild Life and Fisheries Commission, 153 So.2d 562 (La.App.1963) and 165 So.2d 556 (La.App. 1964) in arguing that a denial of a merit raise constituted a disciplinary action. A review of the decision indicates just the opposite. The Court in that ease did not find that the denial of a merit raise constituted a disciplinary action, rather the court found that if the merit raise is denied due to circumstances which amount to illegal discrimination the appellant might then pursue his action under then Art. XIV § 15(0)(1) and (2) of the Constitution of 1921, the equivalent to the present Article 10 § 8 of the Louisiana State Constitution of 1974. Accordingly, we find no error in the commission’s action of July 9, 1981 maintaining the case solely on the basis of discrimination.

BURDEN OF PROOF

Article 10, Section 8 of the Louisiana State Constitution distinguishes between disciplinary actions and allegations of discrimination in Civil Service matters. Under disciplinary actions, the appointing authority has the burden of proof. Under discrimination, the employee has the burden of proof. In this case, once the appellant alleged discrimination under Article 10, Section 8, he then had the burden of proof as to the facts of that alleged discrimination.

In addition, Rule II, Section 4.1(c) of the Orleans Civil Service Commission Rules requires certain specifics when discrimination is asserted.

“A classified employee discriminated against because of his political or religious beliefs, sex or race shall file a written statement with the Civil Service Commission containing the following information:
1. The name or names of the person or persons alleged to have committed the discriminatory act or acts.
2. The date or dates of such act or acts.
3. Where and in what manner such act or acts occurred.
4. The nature of the alleged discrimination.
5. A complainant’s statement shall be filed with the City Civil Service Commission within thirty days of the alleged discriminatory act or acts or the last occurrence of a discriminatory act.”

The same recognition and enforcement should be given to Rule 11 § 4.1 of the Orleans Civil Service Commission Rules and we-conclude that it is not unreasonable and does not violate any basic constitutional right.

The language of the Article cannot be any clearer in situations where an employee alleges discrimination. In such situations, the employee has the burden of proof as to the facts of the alleged discrimination.

While the result may be harsh the rule requiring such specificity is reasonable. This was recognized in Legros v. Department of Public Safety, Division of State Police, 364 So.2d 162 (La.App. 1st Cir. 1978) writ denied 366 So.2d 562 (La.1979), when the court considered a similar rule:

“The obvious purpose of Rule 13, 11(d) is to insure the appointing authority the same degree of specificity concerning its alleged discrimination as the employee is entitled to receive with respect to the charges on which the disciplinary action is predicated. The requirement is reasonable in that it relieves the appointing authority of the disadvantage of having to defend against vague and unspecified charges of discrimination and thereby clearly defines the scope of the hearing before the Commission.”

See also Newton v. La Training Institute-Monroe Dept., 376 So.2d 1032 (La.App. 1st Cir. 1979).

Accordingly, the action by the Commission on July 9, 1981 finding appellant bears the burden of proof is affirmed.

ASSESSMENT OF ANNUAL LEAVE

Finally, appellant contends that the assessment of annual leave for appearance before the Commission was improper.

Rule VIII § 4 Civil Service Rules states: “4. CIVIL LEAVE
4.1 An employee shall be given time off without loss of pay when performing jury duty, when subpoenaed to appear before a Court, public body, or commission, when performing emergency civilian duty in connection with national defense, when ordered to appear for a medical or other examination by the Selective Service System or by a branch of the Armed Forces of the State or the United States, for the purpose of voting or serving as an election official in either a primary, general, or special election in the City of New Orleans; when taking or participating in the New Orleans City Civil Service Examination. An employee taking an examination for a license or certificate from a city or state agency may be granted civil leave if the appointing authority certifies to the Civil Service Department that the service will benefit by the employee acquiring the certificate or license. 4.2 When an employee is authorized or assigned to attend a conference, convention, or training program directly related to his work or the work of his department, no leave shall be reported and he shall be considered as working.”

Appellant argues that an employee is given time off without leave for certain instances, such as performing jury duty or appearance in court under subpoena. He claims that his right to assert this appeal before the commission is a property right which is penalized by the assessment of annual leave time.

Rule VIII, Section 4, (supra), setting forth the conditions under which civil leave is granted is fair and reasonable in all aspects and well within the rule-making authority of the Commission pursuant to Article 10, Section 10(A)(1) and (4). See Eastwold v. City of New Orleans, et al., 374 So.2d 172, (4th Cir. 1979), writ refused 377 So.2d 119; and Civil Service Commission v. Rochon, 374 So.2d 164, (4th Cir. 1979). The rule does not grant civil leave under the factual situation presented here and we cannot infer such leave.

We find the appellant’s right to appeal is not denied or restricted.

Accordingly, for the reasons expressed herein the rulings of the commission are hereby affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    PETE’S PLUMBING AND HEATING, INC. v. Elaine Caire, wife of/and George H. GEISSERT, Jr.
    No. 12881.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1982.
    Michael D. Hannan, New Orleans, for plaintiff-appellee.
    James G. Maguire, Pitard, Pitard & Poro-bil, A Professional Law Corp., New Orleans, for defendants-appellants.
    Before GULOTTA, CIACCIO and LO-BRANO, JJ.
   CIACCIO, Judge.

The plaintiff, a plumbing contractor, filed suit, pursuant to a written construction contract, to recover monies allegedly due for the renovation of the defendant’s residence. The suit also sought to enforce a material-men’s lien against the property. The trial court granted judgment in favor of the plaintiff in the amount of $3,000.00, recognizing the plaintiff’s lien against the property and dismissing the defendant’s recon-ventional demand. The defendant filed this devolutive appeal.

On July 13, 1979, Mr. and Mrs. George Geissert contracted with Pete’s Plumbing & Heating, Inc. for plumbing work to be performed at their residence located at 1529 Broadway Street. The contract was for $7,700.00 and stipulated three separate payments: $3,000.00 on July 27,1979; $3,000.00 on August 3, 1979 and $1,700.00 upon the completion of the work.

The plaintiff began work on' the job shortly after the execution of the contract. The initial payment for the plumbing work due on July 27, 1979 was not paid timely but was paid a short time thereafter. The remaining installments on the contract were never paid. The plaintiff stopped work on the job before completion, due to nonpayment by the defendants. He filed suit to collect the second payment of $3,000.00 owed to him under the contract. The defendants answered the suit and filed a reconventional demand alleging that the work which petitioner had performed was not done in a workmanlike manner, that it was subject to various defects and claimed $3,000.00, the amount allegedly paid, for remedial and corrective plumbing work.

Two issues are presented to us on appeal. (1) Was the building contract “substantially performed” by the plaintiff-contractor? (2) If so, is the defendant-owner nevertheless entitled to recover damages for the cost of remedial work required to correct the defects claimed to be due to faulty workmanship?

Where a contractor attempts to recover the balance of a contract price, he must prove that he has substantially performed the contract in question. Neel v. O’Quinn, 313 So.2d 286 (La.App., 3rd Cir., 1975), writ den., 319 So.2d 440. “Substantial performance” within this context means that the construction is fit for the purpose intended. Neel v. O’Quinn, supra. The question of whether there has been substantial performance is a fact determination. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961). Some factors to be considered in reaching a conclusion as to whether there has been substantial performance of a contract are: the extent of the defect or nonperformance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed. Aireo Refrigeration Service, Inc. v. Fink, supra. We have reviewed the record in this matter and we find that there is no dispute that the plumbing work for which the parties contracted was not fully completed. The parties are generally in agreement as to the specific items of plumbing work which were completed. The witness and parties testified to the completion of extensive underground plumbing work and various items of surface plumbing work.

Although the trial court has provided no written reasons for judgment, it appears from its judgment that it found that the plaintiff had substantially performed his obligations under the plumbing contract. The record supports this finding. There was extensive plumbing work completed on this job, and the work was fit for the purpose for which it was intended. We find no manifest error in this regard.

The defendants argue that the plaintiff’s work was not done in a workmanlike manner. Therefore, they contend that the trial court erred in awarding plaintiff $3000.00 under the plumbing contract, and defendants claim they should be awarded damages for plaintiff’s failure to complete the work or for his failure to perform the work in a good and workmanlike manner, free from defect in either material or workmanship.

If a building contractor fails to perform the work for which he has contracted, or if he does not execute it in the manner and at the time agreed upon, he shall be liable in damages for the loss occasioned by his nonperformance. C.C. 2769. It is implied in every building contract that the contractor will perform his work in a skillful, careful, diligent and workmanlike manner. Wetmore v. Blueridge, Inc., 391 So.2d 951 (La.App., 4th Cir., 1980).

Once the contractor has proven substantial performance of the contract, the burden shifts to the owner to show defects and omissions on the part of the contractor and the cost of repairing these items. Loeb v. Neilson, 128 So.2d 447 (La.App., 4th Cir., 1961).

Where the contractor has proven substantial performance, but defects exist, the contract price is reduced by the amount necessary to perfect the work. Neel v. O’Quinn, supra. If the contractor fails to prove substantial performance of the contract, he is relegated to recovery on the basis of quantum meruit. Master Maintenance Engineering, Inc. v. McManus, 292 So.2d 284 (La.App., 1st Cir., 1974).

In this case the record reveals that the plaintiff walked off the job because he was not given the second installment payment on the building contract. The exact time of this event is in dispute, but it is clear that no plumbing work was performed by the plaintiff after the end of August, 1979. With regard to the plumbing work which was completed, the testimony of the defendants reflects a dissatisfaction with the manner in which the plumbing work was completed.

The defendants contended that the major problem concerning the plumbing work was the placement of the drain rough-ins in the bathroom, alleging that they were placed too close to the wall and too close to each other to accommodate the plumbing fixtures, and that they were required to relocate the drains and had to dig up the slab to accomplish this. Plaintiff contends that he installed the drains exactly as called for on defendant’s plan and that any discrepancy in the placement of the drains resulted from the defective construction of a cement wall by another subcontractor for which he was not responsible, and the necessity for defendant to install a stud wall inside the cement wall changed the dimensions of the plan. Plaintiff testified that although the additional wall did.throw out the rough-in measurements somewhat, the fixtures could still be installed with minor adjustments and it would not be necessary to break the slab and relocate the rough-ins.

This was a factual dispute decided in plaintiff’s favor by the trial judge and we see no error in our examination of the record.

Additional factual disputes arose with regard to whether or not the construction plans drawn up by the defendant, George Geissert, were an exact representation to be followed by the plaintiff or merely a guideline, whether or not the drain installation would accommodate a tub of a certain length and whether or not other defects were found in the work that had been completed by plaintiff. The defendants offered no expert testimony by any other licensed master plumber, nor did they offer competent evidence of the cost of repairing the deficiencies complained of, nor did they offer proof of payment of any amounts in connection with the corrective work allegedly undertaken. Under these circumstances the trial court apparently concluded that the plumbing job was substantially performed, that the defendants had not sustained their burden of proving the existence of defects and omissions on the part of the contractor and the cost of repairing these items, and accordingly awarded the plaintiff a judgment in the sum of $3,000.00 for the work performed under the terms of the contract.

Our review of the record does not convince us that the trial court was clearly wrong in its findings. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendants.

AFFIRMED.

      . The work consisted of plumbing and sewerage facilities to outfit a washroom, two complete bathrooms and a kitchen.

      . In testimony, Mr. & Mrs. George Geissert, Mr. Peter Graffeo and Mr. Michael Callahan agreed that the plaintiff performed the underground work and rough in work for two bathrooms, two kitchen sinks, a washer and dryer tray. The parties agree that plaintiff relocated and replaced the drain for the upstairs washer; completed the stacks for the basement; installed a four inch ABC pipe on the side of the house; provided the drain for the tub and commode; installed a four inch cast iron sewer for the basement and roughed in for the Menge pump.


author: ELLIS, Judge:

text:
    Walter Dale TUCKER v. Mr. and Mrs. Earl LIRETTE, Jr., et al.
    No. 13774.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Clifton A. Adeox, New Orleans, Roy S. Lilley, Metairie, for plaintiff and appellant.
    Jerry Schwab, Houma, for defendant and appellee.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This case is before us for the purpose of fixing damages following a remand from the Supreme Court. See Tucker v. Lirette, 393 So.2d 293 (La.App. 1st Cir. 1980); Tucker v. Lirette, 400 So.2d 647 (La.1981).

The injuries suffered by plaintiff Walter Dale Tucker were the result of an accident on April 23, 1978, when his motorcycle struck an automobile operated by Mrs. Earl Lirette, Jr. and insured by State Farm Mutual Automobile Insurance Company. Defendants are Mrs. Lirette, her husband, and State Farm.

Mr. Tucker suffered numerous contusions and abrasions over his body, some minor lacerations, and a compound fracture dislocation of his right wrist. Dr. Pete H. Rhymes, an orthopedist who was the treating physician, testified that a laceration on the back of plaintiff’s head was sutured, and the others cleaned up. He stated that the fracture was not a bad one. Some severed tendons were repaired, and the break was set with a pin. Plaintiff remained in the hospital for six days. Dr. Rhymes stated that the injury was extremely painful for two or three days, and that plaintiff suffered some pain thereafter for two or three weeks.

Plaintiff wore a long arm cast until May 22, 1978, when it was replaced with a short arm cast, which was, in turn, removed on June 5th. The pin was removed from plaintiff’s wrist on June 15th and he began physical therapy on June 29th. By August 9th, x-rays showed the fracture to be well healed and in good position, with some narrowing of the wrist joint near the fracture site. Plaintiff demonstrated a lack of grip strength in the right hand.

Dr. Rhymes was of the opinion that plaintiff had a 15% to 20% disability of the wrist as a result of the accident. Although plaintiff made no complaints of pain in the wrist after May, 1978, the doctor felt that the narrowing of the wrist joint foretold that plaintiff might develop wrist arthritis at some later date. In that case, he felt that plaintiff might require surgery for fusion or prosthesis. He would not recommend that plaintiff be hired as a bulldozer operator because his wrist might degenerate or be reinjured. Dr. Rhymes stated that his evaluation of plaintiff’s condition was based on the assumption that plaintiff would be working with heavy equipment for eight to ten hours per day.

Mr. Tucker testified that before the accident, he had been employed by the Greg Moise Company as a bulldozer operator at $4.25 per hour. He remained off the job from the date of the accident until June 3, 1978, when he returned to the Moise company as a foreman, training young men to operate the bulldozer. He was still so employed at the time of trial, at a salary of $6.75 per hour. He operates a bulldozer, putting finishing touches on the work done by less skilled operators, but stated that his arm hurts if he operates the bulldozer more than three or four hours. Before the accident, he would operate the machine from eight to twelve hours per day, five days a week.

Plaintiff testified that, as of the time of trial, he still had pain if he worked too hard and when the weather changed. This might happen every other week and last two or three hours. He stated that he now finds it hard to hold a fork or a pencil as he used to, and that he had been told that he could not get hospitalization insurance because of the injury to his wrist.

In summary, plaintiff suffered a wrist fracture of moderate severity, which was painful for about a month after the accident, but which has caused little discomfort since that time. As a result, his ability to operate heavy machinery has been impaired. However, because of his skill, plaintiff has been employed at a higher salary, in a supervisory position, since about six weeks after the accident. There is no indication in the record that his current employment is in jeopardy. Dr. Rhymes was of the opinion that plaintiff could expect deterioration of his wrist if he continued to work eight to ten hours per day operating a bulldozer. There is no medical opinion as to plaintiff’s future under the conditions of his present employment.

Considering all of the foregoing, we feel that an award of $20,000.00 will adequately compensate plaintiff for his pain, suffering and disability, past and future. Special damages of $2,384.50 for medical expenses, and $1,530.00 in lost wages were proven.

Plaintiff testified that he had just purchased the motorcycle involved in the accident for $600.00, and that it was totally destroyed therein. We will award this amount as well. We do not find that plaintiff has proven any future economic loss because of his condition. Any award made by us would be purely speculative. The record shows an increase rather than a loss in earning capacity.

Accordingly, there will be judgment herein in favor of plaintiff and against defendants for $24,514.50, with legal interest from date of judicial demand until paid, and all costs of these proceedings.

RENDERED.


author: PONDER, Judge.

text:
    Robert PETERS, et al. v. LIVINGSTON WOOD PRODUCTS, INC., et al.
    No. 13865.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Frank S. Bruno, New Orleans, for plaintiffs.
    Henry Mentz, Jr., Hammond, for defendants.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

This workmen’s compensation case is before us on appeal from a judgment of dismissal holding that the injured party had received all compensation due him.

The appeal raises serious issues of manifest error, penalties, attorney’s fees and the application of the “odd lot” doctrine.

We elect to remand the case because it was tried before the enunciation by the Supreme Court of the odd lot doctrine. In the interest of fairness and justice we believe both plaintiff and defendant should be allowed to present whatever evidence they can on that issue.

There is an even more basic point, however, on which we remand. The case was filed by “Robert Peters, Individually and as the Natural Tutor of his minor son, Anthony.” Mrs. Clara Mae Sibley Peters testified her husband, Robert, died on January 4, 1979, prior to trial and judgment. There has been no substitution of parties.

The case is remanded for the substitution of party plaintiff and for other proceedings in accordance with this opinion. Appellee is cast with costs of this appeal. All other costs are to await the final outcome.

REMANDED.


author: LEAR, Judge.

text:
    Calvin BATISTE v. Conway GUITEAU, Jr., et al.
    No. 14547.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied May 17, 1982.

      Joseph H. Simpson, Amite, for plaintiff.
    Curtis M. Baham, Jr., Hammond, and George M. Pierson, Baton Rouge, for defendants.
    Before EDWARDS, LEAR and CHIAS-SON, JJ.
   LEAR, Judge.

This lawsuit arose from a dispute between Calvin Batiste and Conway Guiteau, Jr., concerning the sale of lumber by Gui-teau to Batiste. The record indicates that sometime in the early part of July, 1979, Batiste purchased certain items of lumber from Guiteau. At the time of the sale the parties agreed that Batiste would take the lumber and return within a few days to pay for it. Batiste did return as promised, however, he paid Guiteau the sum of $208.00 only, leaving a balance of $277.00. The testimony differs as to the number of conversations the parties had with each other regarding payment of the balance due. There is, however, no dispute between the parties that the balance due to Guiteau was never paid.

On August 31, 1979, Guiteau instructed five of his employees (who are also named as defendant’s in Batiste’s suit) to go to Batiste’s premises and remove the lumber, which Batiste had used to build a concert stage. The five Guiteau employees did, in fact, on that day go to the Batiste premises and remove the lumber, causing damage to certain other property owned by Batiste. In their testimony, Guiteau and his five employees admitted that they went onto Batiste’s premises and removed the previously purchased lumber without Batiste’s knowledge or permission. Thereafter, Batiste filed certain criminal charges against Guiteau and the five employees, causing Guiteau to be arrested for receiving stolen property and the five employees to be charged with trespassing.

Being a rural area, and the fact that the parties were well known, a good deal of publicity was given to these incidents, both in the newspapers and on the radio. Subsequently, Guiteau published a letter in several area newspapers and had the letter read over at least two area radio stations. Gui-teau testified that his motive in writing the letter was to respond to the adverse publicity surrounding this event and his arrest and to “set the record straight” and “tell his side of the story” with regard to this entire event. In addition to discussing the facts concerning the removal of the lumber from Batiste, his arrest and the political aspect of this incident, Guiteau’s letter to the editor did state that Batiste had failed to pay a debt owed to him (Guiteau). At that time Batiste had also written a letter to the editor explaining his version of this incident.

Apparently Mr. Guiteau had supported the district attorney in his election campaign, and for this reason the district attorney recused himself from this prosecution and the matter was then turned over to the Louisiana Attorney General. In April and May of 1980 Batiste wrote two letters to local newspapers, commenting on the fact that, as of that time, Guiteau and the other defendants had not been brought to trial on the criminal charges. The substance of these letters concerned the Attorney General’s actions, and mentioned Guiteau and the other defendants only incidentally.

In May of 1980 Batiste filed a civil suit for damages against Guiteau and the five employees who had come to his business premises and removed the lumber he had purchased from Guiteau. The suit claimed damages for trespassing, destruction of Batiste’s stage, conversion of the lumber and other materials, loss of future business income, defamation, slander and libel, racial discrimination and political persecution. The defendants answered Batiste’s suit and reconvened for damages, alleging false arrest, incarceration and defamation of character. Guiteau also reconvened for the unpaid balance on the sale of the lumber. After defendant’s reconventional demand was filed, plaintiff amended his petition to allege that he was entitled to attorney fees and punitive damages with regard to his defamation suit and also sought attorney fees for the defense of the reconventional demand filed by defendants for defamation, in the event that they were unsuccessful. Prior to trial, defendants voluntarily dismissed their reconventional demand with regard to the malicious prosecution.

After a bench trial on the merits, the plaintiff was awarded general damages in the amount of $2,500.00 for the conversion and trespass and $763.00 in special damages for the destruction of his property. On the reconventional demand defendant was awarded $277.00 for the unpaid balance of the lumber sold to plaintiff and defendants’ defamation suit was dismissed. The trial court also rejected plaintiff’s demands for attorney fees with regard to both the prosecution of his defamation suit and the defense of the reconventional demand for defamation filed against him.

On appeal, plaintiff assigns the following errors:

1. The trial court erred in its finding of fact that this case arose out of a Tangipahoa Parish election feud;
2. The court erred when it found that the notebook entered into evidence was self-serving and obviously constructed after the events for purposes of trial and that no other competent supportive evidence was introduced, and did not award damages for loss of future business;
3. The court erred in finding that there was no actionable defamation;
4. The court erred in not awarding attorney fees to the plaintiff where the defamatory action was made with knowledge of its falsity or with reckless disregard of whether or not it was false;
5. The court erred in not awarding plaintiff attorney fees for the defense of the reconventional demand of defendants on libel and slander;
6. The court erred in giving a joint award for conversion and trespass, and the award itself was totally insufficient for the damages done to plaintiff.

ELECTION FEUD

While we are not certain of the relevancy of the court’s finding that “this case arises out of a Tangipahoa election feud”, we believe that this factual finding of the trial court is supported by the evidence. In any event, we do not believe that this factual finding was in fact adverse to plaintiff. For the reasons stated below, we believe that, even if this factual finding was incorrect, it would be merely harmless error.

LOSS OF FUTURE BUSINESS INCOME

In his written findings, the trial judge stated as follows:

“Plaintiffs testimony as to his loss of future earnings is speculative and uncorroborated. The notebook which he entered into evidence is self-serving and obviously constructed after the events for purpose of trial. No income tax returns or other competent supportive evidence was introduced. Plaintiff is presently well employed, making more than he ever has. Any effects of the wrongful acts of the defendants were not long lasting.”

Plaintiff testified that he had scheduled concerts for August 31 and September 1 and 2. When asked if he had any bands booked for the future, plaintiff stated that “I wouldn’t say whether it was booked or not but we had everything lined up for.” Plaintiff further testified that he was “lining this up” with Larry Jones, an agent from New Orleans.

The only evidence found in the record to support this claim is a notation in plaintiff’s business ledger which reads as follows:

“Next concerts Aug. 31, 1, 2. Get in touch with Larry to work out final details before Aug. 30, 1979 to make sure everyone will perform on these dates Aug. 31, 1, 2, time of concert 8:00 p. m. until”

It is well settled that the credibility of witnesses is particularly a matter as to which the trier of fact has much discretion and the trial court’s judgment in regard to credibility will not be disturbed unless clearly erroneous. Car Parts, Inc. v. Bordelon, 398 So.2d 35 (La.App. 4th Cir. 1981); Steib v. Schwegmann Bros. Giant Supermarkets, Inc., 396 So.2d 464 (La.App. 4th Cir. 1981); McMillan v. Travelers Insurance Company, 371 So.2d 1213 (La.App. 1st Cir. 1979).

Plaintiff did not introduce any evidence as to whether these final details had been worked out, whether contracts had been signed, or even the names of the bands which were to perform. Further, plaintiff failed to produce the agent, Larry Jones, or any other corroborative evidence. Under these circumstances, we find that the trial court did not err either in its factual finding concerning the ledger evidence introduced by plaintiff or in its failure to award damages for loss of future business income. These findings are supported by the evidence.

DEFAMATION

Plaintiff’s suit also claims damages for defamatory statements allegedly made by Guiteau in a letter published in various newspapers and aired by a number of radio stations in Tangipahoa Parish. This letter, titled “Thief or victim of political harrassment? You be the judge”, and subtitled “A factual account by Conway Guiteau, Jr.,” was written in response to the publicity surrounding the sale and removal of Batiste’s lumber and Guiteau’s subsequent arrest. The letter claims that Batiste purchased lumber from Guiteau, promising to pay for the lumber the following Monday, that Batiste failed to do so, and that he later paid only $208.00 of the purchase price, leaving a balance of approximately $275.00.

Batiste claims that he was defamed by Guiteau’s statement in this letter that he (Batiste) did not pay a debt which he owed.

Louisiana jurisprudence lists the following elements of a cause of action for defamation; (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. Bosley v. Hebert, 385 So.2d 430 (La.App. 1st Cir. 1980); Slocum v. Webb, 375 So.2d 125 (La.App. 3rd Cir. 1979); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979). Further, it is well established that truth or substantial truth is a defense to a defamation suit. Bosely v. Hebert, supra; Rosen v. Capital City Press, 314 So.2d 511 (La. App. 1st Cir. 1975). Since plaintiff himself admitted that Guiteau’s statement with regard to the nonpayment of the debt was true, and the court specifically found that this was true and, in fact, rendered judgment in defendant’s favor with regard to the unpaid balance, plaintiff cannot recover damages for the publication of that fact. We also note that the letter published by Guiteau did not state that plaintiff generally does not pay his debts, but rather, Gui-teau confined this statement to this one particular occurrence. Again, as the trial court found, we believe that these statements were made by Guiteau without malice and to merely state his version of the facts and to counter the prior adverse publicity.

Plaintiff argues that, because defendant did not specifically plead the defense of truth, the truth of the matter cannot serve to defeat plaintiff’s defamation action. We note, however, that all of the testimony concerning the truth of defendant’s statement was received in evidence without objection. Under the provisions of La.C.C.P. art. 1005, the pleadings were enlarged by the evidence adduced without objection and the trial court properly considered the evidence. Durham v. Evans, 377 So.2d 423 (La.App. 2nd Cir. 1979). For these reasons we hold that the trial court was correct in finding no actionable defamation by defendant Guiteau.

ATTORNEY FEES

Plaintiff assigns error in the trial court’s failure to award him attorney fees in connection with his defamation action. As he was unsuccessful in that action, he is not entitled to an award of attorney fees.

Plaintiff also complains of the trial court’s failure to award him attorney fees for the defense of the reconventional demand by defendants for defamation.

La.C.C. art. 2315.1(B) provides that, where a plaintiff in an action for defamation does not prevail, and judgment is rendered in favor of the defendant, the court, if it determines the action was frivolous, may award “reasonable attorney’s fees” to the defendant. Although art. 2315.1 was repealed by the legislature, the effective date of which was September 12, 1980, this provision was in effect in May, 1980, when defendants filed their reconventional defamation action against plaintiff.

Although the court did not make a specific finding that defendants’ reconventional demand was frivolous with regard to the defamation, our reading of the record leads us to believe that this demand had absolutely no merit.

As previously noted, the statements complained of by defendants were contained in letters to the editor written by Batiste. The statements contained in these letters were directed at the District Attorney and Attorney General, rather than at defendants, and they accused defendants of absolutely nothing. For this reason we find that the trial court’s failure to award plaintiff (defendant in reconvention) attorney’s fees was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record contains no evidence as to the amount of time or effort expended by plaintiff’s attorney in defense of the recon-ventional defamation action. We note, however, that this action was tried in connection with plaintiff’s main demand and only a small portion of the trial was devoted to the reconventional demand for defamation. Therefore, the trial court’s judgment will be amended to include an award to plaintiff for attorney’s fees in the amount of $500.00.

DAMAGES FOR' CONVERSION AND TRESPASS

Finally, plaintiff argues that the trial court erred in making only one lump sum award for both the conversion and trespass. While the phrasing used by the trial court in its written reasons for judgment does appear to make a lump sum award for both the conversion and trespass, we note that the court did, in fact, make two separate awards to plaintiff, one in the amount of $2,500.00 for damages for the conversion and trespass and a separate award of $763.00 for damages for loss of the stage. We understand this latter award to actually have been made for the conversion of the plaintiff’s property. In any event, it appears that any error in the trial court’s manner of making this award is harmless.

With regard to the adequacy of the award, the record is clear that plaintiff was not present at the time of the trespass or conversion, that he did not even know it was occurring until later that day and his lumber was returned to him within a few days of the trespass and conversion. Under these circumstances, the award adequately compensates plaintiff and this award was reasonable and within the much discretion of the trial court. La.C.C. art. 1934(3).

For the foregoing reasons, the judgment of the trial court is reversed in part and judgment is hereby rendered in favor of plaintiff, Galvin E. Batiste, and against all defendants, in solido, in the amount of $500.00 as reasonable attorneys fees. The judgment of the trial court in all other respects is hereby affirmed. All costs are to be paid by defendants.

REVERSED IN PART AND AFFIRMED IN PART.