author: FRED W. JONES, Judge.

text:
    D. H. WHITTINGTON, Plaintiff-Appellee, v. LOUISIANA-PACIFIC CORPORATION, Defendant-Appellant.
    No. 14153.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    En Banc. Rehearing Denied July 24, 1980.
    Simmons & Derr by Jacque D. Derr, Winnfield, for defendant-appellant.
    John Makar, Natchitoches, for plaintiff-appellee
    Before PRICE, MARVIN and JONES, JJ.
   FRED W. JONES, Judge.

By contract dated May 30, 1972 L. L. Brewton Lumber Company, Inc. (“Brew-ton”) agreed to pay D. H. Whittington, as consideration for services rendered by the latter in connection with the establishment of a charcoal plant in Winn Parish, a specified “royalty” per ton of bark sold by Brew-ton to the new company which was to operate the charcoal plant. Whittington filed this suit on January 11, 1977 against Louisiana-Pacific Corporation for royalties allegedly due under the described contract. Defendant appeals from a trial court judgment in favor of plaintiff. We reverse.

The contract between Brewton and plaintiff provided that it was to be binding upon the “heirs, transferees and assigns” of the parties so long as charcoal was being produced at the new plant. Although the instrument included no description of nor reference to movable or immovable property owned by Brewton, it was recorded in the Winn Parish conveyance records.

Later in 1972, subsequent to confection of the contract, Brewton and Louisiana-Pacific Corporation executed an agreement under which the latter was granted an option to purchase certain properties in Winn Parish belonging to Brewton. This instrument referred to the Whittington contract with the comment that it “may or may not be binding on Seller’s assignee.”

By deed dated February 1, 1973 Brewton sold to defendant certain movable and immovable properties owned by the vendor in Winn Parish. Although not explicit, this apparently included equipment used by Brewton in its bark-producing operations. There was no reference at all in this act of sale to the Whittington contract. Parenthetically, it is noted that defendant did expressly assume, as part of the consideration for the sale, other obligations of Brew-ton which were evidenced by promissory notes. Further, at the time of the sale Brewton owed plaintiff no outstanding balance for bark sold to Carla Charcoal Company, original operator of the new plant.

Evidence presented at the trial showed that defendant only purchased part of the properties owned by Brewton in Winn Parish. It bought none of the corporate stock of the vendor, which continued to operate as a corporate entity. It was further shown that defendant never paid plaintiff anything under the contract. The parties stipulated that all sales of bark by defendant for use at the charcoal plant were to the Masonite Corporation, which apparently succeeded Carla Charcoal Company as plant operator. It was also stipulated that defendant, if liable to plaintiff, would owe him $18,297.86 for royalties on bark sold to the Masonite Corporation.

Plaintiff conceded that at no time did he discuss with any of defendant’s officials or employees the purchase by defendant of Brewton’s properties nor Brewton’s contractual obligation to plaintiff.

L. L. Brewton, Sr., president of Brewton, denied that its contract with plaintiff was mentioned at any time during the negotiations with defendant for purchase of the Brewton properties. According to this witness, the only reference to the Whittington contract came sometime after the sale was completed in a conversation with Tommy Reynolds, defendant’s vice-president who represented it in the negotiations, when Mr. Brewton stated that the contract was a matter of record and “would have to be honored.” Reynolds allegedly simply replied, “okay.”

In his written “reasons for judgment” the trial judge ruled in favor of plaintiff on the ground that there was “an assumption of the obligation owed to plaintiff by Brewton interest.”

To place this litigation in proper perspective and focus upon relevant issues, certain preliminary observations are appropriate. First, it is obvious that plaintiff’s contract with Brewton did not create a real obligation against any Brewton property, including that conveyed to defendant, since the contract neither described nor made reference to property owned by Brewton. Consequently, recordation of the contract had no effect upon third parties. Second, the vague reference in the option agreement to the Whittington contract as one that “may or may not be binding” contributes nothing to resolution of this litigation. Third, since defendant was neither an heir, transferee or assignee of Brewton it was not personally bound under the contract simply by virtue of falling into one of those categories. Fourth, since there was no express assumption by defendant in the act of sale of Brewton’s contractual obligation to plaintiff, the latter can recover from defendant only if he is permitted to prove by parol evidence the existence of a verbal agreement by defendant to assume that obligation.

There is no question but that under our law the vendee in an act of sale may, in consideration of the transaction, assume the vendor’s obligation to a third party. In Louisiana this undertaking is described as a stipulation pour autrui. However, as pointed out in Hertz Equipment Rental Corporation v. Knost Construction Company, Inc., 273 So.2d 685 (La.App. 1st Cir. 1973):

“. . . Louisiana Revised Civil Code, Articles 1890 and 1902, provide that contracts for the benefit of third persons must clearly express such an intention. The jurisprudence requires that such a provision for the benefit of third persons be in writing and clearly manifest an intention to confer a benefit upon a third party.”

Since defendant did not execute in writing an agreement clearly expressing an intent to assume Brewton’s contractual obligation to pay royalties on bark sales to plaintiff, the latter’s claim must be denied.

However, even if parol evidence was admissible to prove a verbal assumption of this contractual obligation (either as a matter of law or because defendant failed to object to its admissibility at the trial on the merits), a review of the record shows that plaintiff did not prove this assumption by the required preponderance of the evidence. Brewton’s president never asserted that part of the consideration for the sale to defendant was an agreement by the latter to assume the vendor’s contractual obligation to plaintiff. The impression given by Mr. Brewton’s testimony is that his casual mention of the Whittington contract sometime after completion of the sale to defendant was simply an afterthought. Certainly the colloquy between Mr. Brewton and Reynolds could not be construed as a clear manifestation of defendant’s intention “to confer a benefit upon a third party.” As previously noted, the act of sale to defendant did in fact include an express assumption by the vendee of other obligations owed by Brewton to third parties. Under these circumstances, we reverse and render judgment for defendant.

The judgment appealed is reversed and it is hereby ordered that the demands of plaintiff, D. H. Whittington, against defendant, Louisiana-Pacific Corporation, are rejected at plaintiff’s cost.

      . The petition does not state the basis for defendant’s liability. At the trial on the merits plaintiff seemed to proceed on the theory that defendant had assumed Brewton’s contractual obligation to plaintiff.

      . LSA-C.C. Art. 2012 specifies the methods by which real obligations may be created.

      . LSA-C.C. Article 1890 provides:
      “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.”

      .For an excellent discussion of this subject, see Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, Tulane Law Review 18 (1936).


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    DAIGRE ENGINEERS, INC., Plaintiff-Appellee, v. CITY OF WINNFIELD, Louisiana, Defendant-Appellant.
    No. 14154.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.

      Crowell, Owens & Tudor by William B. Owens, Alexandria, for plaintiff-appellee.
    Sanders & Castete, Ltd., by Martin S. Sanders, Jr., Winnfield, for defendant-appellant.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant, The City of Winnfield, (City), appeals a judgment granting a preliminary injunction in favor of plaintiff, Daigre Engineers, Inc. (Daigre). The injunction prohibited the City from cancelling its contract with Daigre and granting the contract to Daigre’s competitor. We affirm.

Plaintiff and defendant contracted in June of 1975 for plaintiff to provide engineering services for a sewerage extension and improvement plan for the City. Daigre’s services were divided into several phases — (1) application, (2) preliminary design (Step 1), (3) final construction drawings, specifications, and contract documents (Step 2), and (4) construction (Step 3). The application phase and Step 1 (preliminary design phase) had been completed when Daigre received notice of a City Council meeting to be held on October 3, 1979, for the purpose of termination of the contract. At this meeting the City Council ended the contract despite Daigre’s contention that the contract could only be terminated in accordance with the arbitration provisions therein contained.

The plaintiff had prepared the necessary applications to secure approval of the Environmental Protection Agency (EPA) to proceed with Step 2 of the contract at the time the City commenced proceedings to cancel the contract. The original contract provides in Section III the following:

“This Agreement shall remain in force for a period which may reasonably be required for the design, award of contracts and construction of the Project, including extra work and any required extensions thereto, or for a period of twelve (12) months after the completions of the services called for either in Section IIA (Application Phase) or IIB (Preliminary Design Phase), whichever may be pertinent, in case construction is not commenced. The final acceptance by the Owner of each construction contract in the Project shall serve as evidence of completion, on the part of the Engineer, of all services under this contract, insofar as they pertain to that section of the Project.”

Addendum # 4 to the original contract, which was executed in 1978, was designed to supplement the provisions of Step I of the original contract for the purpose of obtaining additional EPA funds to perform a Sewer Evaluation Study. This Addendum had also as a purpose the modification of the original contract by adding to it new regulations of the EPA which had become effective Feb. 1, 1977 and which was styled “Required Provisions Consulting Engineers’ Agreement” and designated Appendix C-l. Addendum # 4 outlined plaintiff’s duties in connection with the Sewer Evaluation Survey and its compensation. It contained in Section III thereof the following, to-wit:

“SECTION III — PERIOD OF SERVICE This agreement shall remain in effect until the completion of the Sewer Evaluation Survey.”

Defendant contends that the quoted language from Addendum # 4 entitled it to terminate the contract at the completion by plaintiff of Step I. Plaintiff contends the language quoted above from Section III of the original contract governs the life of the contract and the contract will remain in effect until after the construction has been completed.

The basis of plaintiff’s suit for arbitration is contained in Section VIII of the original contract which provides that all disputes between the plaintiff and defendant shall be resolved by arbitration. Plaintiff contends arbitration was required to resolve the dispute with regard to whether or not the contract could be terminated by the City at the completion of Step I. Plaintiff further relies upon the provisions relating to termination and arbitration contained in Section IV and V of Addendum # 4. Section IV of the addendum specifically provides:

“In the event the Owner elects to terminate this Agreement and the Engineer opposes such termination, then this shall be considered a dispute and such dispute shall be submitted to arbitration in accordance with the Section of this Agreement entitled ‘Arbitration of Dispute’.”

We observe that Appendix C-l attached to Addendum # 4 contains the following provisions:

“6. REMEDIES
Except as may be otherwise provided in this agreement, all claims, counter-claims, disputes and other matters in question between the Owner and the Engineer arising out of or relating to this agreement or the breach thereof will be decided by arbitration if the parties hereto mutually agree, or in a court of competent jurisdiction within the State in which the Owner is located.”

Because the City refused to arbitrate and proceeded to cancel its contract, Daigre filed this action to enforce the arbitration provisions of the contract and to enjoin the City from terminating the contract with Daigre and from entering into a contract with any other engineer “pending arbitration of said termination”. Included among the allegations of Daigre’s petition as reasons why it is entitled to the injunction judgment we find the following:

“In order to protect Petitioner’s rights and interests in its contractual relationship with ‘Winnfield’, it is necessary that this Court permanently restrain and enjoin the Defendant, ‘Winnfield’, its agents, employees and all other persons, firms or corporations acting or claiming to act in its behalf from severing its contractual relationship with ‘Daigre’ and awarding the balance of the work to be performed under the above referenced contract to any other engineering firm.”

After a hearing the trial judge issued a preliminary injunction prohibiting the City from terminating the contract with Daigre and from awarding a contract for the balance of the work to any other engineering firm. The judgment made no affirmative declaration on the issue of arbitration. The trial judge required a $100,000 surety bond as a condition to the issuance of the injunction which plaintiff supplied with an out-of-parish surety. The City appeals, contending error in the granting of the preliminary injunction.

Appellant assigns as error (1) the trial court’s adjudication that plaintiff was entitled to arbitrate the issue of termination of the contract, (2) the trial court’s granting the preliminary injunction when plaintiff had not established irreparable harm and had not shown it would be successful on the merits of the case, and (3) the trial court’s refusal to dissolve the preliminary injunction for the reason that the surety provided on the bond was an out-of-parish resident who had not been approved as required by LSA — C.C. art. 3042.

LSA-C.C.P. art. 3601 provides that an injunction shall issue where irreparable injury, loss or damages would otherwise result to the applicant. Irreparable injury is considered to be a loss sustained by an injured party which cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard. National Pacific Corp. v. American Com. Fin. Corp., 348 So.2d 735 (La.App. 1st Cir. 1977); Pennington v. Drews, 209 La. 1, 24 So.2d 156 (1945); City of Lake Charles v. Lake Charles Ry., L. & W. Co., 144 La. 217, 80 So. 260 (1918). The jurisprudence construing LSA-C.C.P. art. 3601 and 3609 requires the applicant for the injunction to make a prima facie showing that it will prevail on the merits of the case. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979); Daily States Pub. Co. v. Uhalt, 169 La. 893, 126 So. 228 (1930); Price v. State, Dept. of Pub. Saf., Lic. Con. & D.I. Div., 325 So.2d 759 (La.App. 1st Cir. 1976); Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1st Cir. 1970).

The Louisiana Arbitration Law is contained in LSA-R.S. 9:4201 et seq. The enforceability of an agreement to arbitrate is set forth in Section 9:4201:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

LSA-R.S. 9:4203 provides that a party aggrieved by the failure or refusal of another to arbitrate under a written agreement for arbitration may petition the court for an order directing arbitration.

The case of Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974), recognized that the provisions of LSA-R.S. 9:4203 of the Louisiana Arbitration Law:

“. . . requires a court to order arbitration, once it finds that there has been an agreement to arbitrate and a failure to comply therewith.” Bartley, supra, at 283.

The favor to which agreements to arbitrate are entitled under the law is reflected by the following quote from the decision of Cajun Electric Pow. Coop., Inc. v. Louisiana P. & L. Co., 324 So.2d 475 (La.App. 4th Cir. 1975), at pp. 478-479:

“The law favors an interpretive effort toward upholding arbitration. The purpose of the Louisiana Arbitration Law, LSA-R.S. 9:4201 et seq., had been discussed as follows:
‘ * * * The act may prove useful in making certain that contracts providing for arbitration are carried out and may deter those who, having provided for arbitration, would later prefer to evade this provision and burden the court with matters which might better be settled through arbitration with time and trouble saved for all parties concerned.’
And this court has recently observed that:
‘The parties have entered into an enforceable agreement which provides for arbitration, and between them it is binding as the law. The court will not permit the evasion of this provision.’ Wright v. Round the Corner Restaurants, 252 So.2d 341 (La.App. 4th Cir. 1971).
Where there is doubt, the general rule is that it should be resolved in favor of, not against, arbitration. See: Southern Bell Tel. & Tel. Co. v. Louisiana Power & Light Co., 221 F.Supp. 364 (E.D.La.1963); Texas Gas Transmission Corp. v. International Chemical Workers Local Union No. 187, AFL-CIO, 200 F.Supp. 521 (W.D.La. 1962).”

The provisions of LSA-R.S. 9:4202 provide for a “stay of proceedings brought in violation of arbitration agreement” and further establish the extreme importance recognized by our law of enforcing arbitration agreements. This section reads as follows:

“If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.”

In the decision of Bodman, Murrell & Webb v. Acacia Found, of L.S. U., 246 So.2d 323 (La.App. 1st Cir. 1971), the arbitration provisions of a contract were enforced to compel arbitration wherein there was a contention made that the arbitration agreement was unenforceable because there was a total breach of the contract. In this case an architect sought arbitration under the arbitration provisions in his contract with the owner to resolve a dispute as to the owner’s right to terminate his contract because the architect was alleged to have “failed to meet earlier the time schedule or budget limitations imposed by the contract.”

In the companion case of Acacia Foundation of L.S.U., Inc. v. Bodman, Murrell & Webb, 246 So.2d 327 (La.App. 1st Cir. 1971), the court stayed the proceedings in a suit wherein the owner had sued the architect for damages for breach of the contract. The court was here applying the provisions of LSA-R.S. 9:4202.

Appellant’s contention that the trial judge erred because he made an affirmative finding that plaintiff was entitled to arbitrate is without merit because the judgment does not so state. The trial judge in his reasons for judgment which were not fully articulated, made the following statement:

“ . . . Gentlemen, this is a matter before the Court today on a Motion for a Preliminary Injunction. Of course, this is a serious remedy. The Court really appreciates the seriousness of it. Just as serious as this motion . . . it is a serious matter, involving both the City of Winnfield and Mr. Daigre. It is something that should be aired in our Courts and everybody be able to present their proper evidence in a Court of law. And I am going to grant the Preliminary Injunction. Judge Wright will be back here on . . .on the 7th of January and I am sure he will give you an early trial date. And that is the judgment of the Court, the Preliminary Injunction shall be granted.”

The law requires that plaintiff must establish a prima facie case on the merits of his claim in order to be entitled to the preliminary injunction, but it does not require conclusive adjudication of plaintiff’s claim on the merits as a condition for the preliminary injunction. The trial judge has broad discretion in determining whether to grant or refuse the injunction.

In the case of Melancon v. Assumption Par. Police Jury, supra, the court stated at p. 691:

“A preliminary injunction is interlocutory in nature, designed to preserve the status quo until a determination can be made on the merits of the controversy. It may issue on a prima facie showing by the plaintiff that he is entitled to the relief sought, and that he would suffer irreparable injury if it is not granted. Ridge Park v. Police Jury of Jefferson Parish, 210 La. 351, 27 So.2d 128 (1946); Cloud v. Dyess, 172 So.2d 528 (La.App. 3 Cir. 1965).
* * * * * *
The trial judge has broad discretion in determining whether to grant or refuse a preliminary injunction. Silberman v. Beaubouef, 175 So.2d 873 (La.App. 3d Cir. 1965).”

The provisions quoted from the contract earlier in this opinion, together with the pleadings and the evidence taken at the hearing, adequately establish a prima facie case on plaintiff’s contentions as to the duration of the contract, the existence of a binding agreement to arbitrate, and the refusal of the appellant to participate in arbitration proceedings. We conclude that the trial judge found plaintiff established a prima facie case, although he failed to so state. If he had not so concluded, he would not have issued the preliminary injunction. The trial judge pointed out that he was maintaining the status quo until there could be a full hearing held for the purpose of determining whether or not plaintiff was entitled to arbitrate the dispute.

Appellant contends plaintiff failed to show irreparable harm because he showed no damages which could not be compensated in money, and for this reason he was not entitled to the injunction. We note that plaintiff’s petition contains no demand whatsoever for a money judgment and the only relief therein sought is to compel arbitration which plaintiff was entitled to seek under the provisions of LSA-R.S. 9:4203.

The extreme value of the right to arbitrate has been recognized by the legislature through the provisions of the Louisiana Arbitration Law. The right has been recognized as so valuable that a party denied it is entitled to stay any judicial proceedings brought upon an issue which he is entitled to arbitrate “until an arbitration has been had in accordance with the terms of the agreement.” The effect of a stay of proceedings granted under the provisions of LSA-R.S. 9:4202 is to maintain the status quo until arbitration has been completed. If appellant had sued to terminate the contract rather than unilaterally cancelling same by the action of the City Council, Daigre would have been entitled to seek a stay of the proceedings in that suit maintaining the status quo until arbitration had been completed. Daigre here seeks to maintain the status quo by the injunction process while it arbitrates the dispute. If appellant is permitted to evade the arbitration law by proceeding through the action of its City Council to cancel plaintiff’s contract and employ a new engineer without first arbitrating the dispute, plaintiff will sustain the loss of his valuable right to arbitrate. Our conclusion is that the loss of this right is one which can not be compensated in money and for that reason the loss of the right to arbitrate could constitute irreparable harm.

In the case of Town of Kinder v. Beauregard Elec. Co-Op., Inc., 339 So.2d 891 (La. App. 3d Cir. 1976), and other cases cited therein, the right of an electrical franchisee to be protected in the exercise of its franchise was recognized as entitled to the protection of an injunction. In the case of Haughton Elevator Division v. State, etc., 367 So.2d 1161 (La.1979), the right of a low bidder on a public contract to prevent the award of the contract to a higher bidder in violation of the public bid laws was recognized as entitled to protection by an injunction.

We conclude the rights protected in these cases by the injunctive process are comparable to plaintiff’s right to the protection of the arbitration provisions contained in his contract under the Louisiana Arbitration Laws. The preliminary injunction here granted was necessary to maintain the status quo and prevent irreparable harm to plaintiff in the event it was established on a trial of the merits that plaintiff was entitled under the law to arbitrate his dispute with appellant.

The surety provided on the $100,000 injunction bond was a resident of Rapides Parish rather that Winn Parish where the suit was brought. The provision of LSA-C.C. art. 3042 provides:

“ . . . where surety is tendered of persons residing out of the parish, the judge alone shall pass on the sufficiency thereof, and shall require such proof as he may deem necessary.”

The trial judge did not “pass on the sufficiency thereof” at the time the bond was supplied and the injunction became effective, but he specifically approved the nonresident surety at the hearing on the motion filed by appellant to dissolve the injunction because of the non-resident surety on the bond. We find the trial judge’s approval of the surety at this time substantially complied with the Code Article and for this reason appellant’s argument of error based on the non-resident surety is without merit.

For the reasons assigned the judgment is AFFIRMED.

      . SECTION VIII — ARBITRATION OF DISPUTES — Should any dispute arise hereunder between the Owner and the Engineers as to any of the terms or provisions of this Agreement or the obligation of the parties thereunder, the Owner and the Engineer shall submit such dispute to arbitration as follows:
      A. the Owner and the Engineer shall each appoint an arbitrator, who together shall select a third arbitrator.
      B. Arbitrators shall have full power to investigate such dispute, hear witnesses, examine papers, drawings and documents, and take professional expert opinion thereon and shall arbitrate and decide such dispute to carry out the intentions of the parties and do justice between them. Their decision shall be a condition precedent to any court action.
      C. In the event arbitrators are unable to agree upon the selection of the third arbitrator, or having selected such arbitrator, the three arbitrators are unable to reach an agreement, then the arbitration shall be considered to have been exhausted.

      . SECTION IV — TERMINATION—This agreement may be terminated by the Owner in the event the Engineer is not performing the services that are required of him under the provisions of this Agreement, or in the event both the Owner and the Engineer mutually agree to terminate this Agreement. In the event the Owner elects to terminate this Agreement and the Engineer opposes such termination, then this shall be considered a ‘dispute’ and such dispute shall be submitted to arbitration in accordance with Section of this Agreement entitled ‘ARBITRATION OF DISPUTES’. If this contract is terminated by the mutual agreement of the Owner and the Engineer, or if this Agreement is terminated as a result of an arbitration decision hereunder, or if this contract is terminated as the result of the decision of a court, then as soon as practical thereafter, the Engineer shall submit a statement showing in detail the services performed under this Agreement to the date of termination. The Owner shall then pay the Engineer promptly that proportion of the described fee which the reasonable value (quantum) of the services actually performed under this Agreement bares to the reasonable value of the total services called for under this Agreement, less such payments on account of the fee as have been previously made; in addition thereto, the Owner shall also be obligated to pay the Engineer for the anticipated profits which the Engineer would have been entitled to had this contract not been terminated, based upon the proportion of the services actually performed to the total services called for under this Agreement. Copies of all completed or partially completed designs, plans, and specifications prepared under this Agreement shall be delivered to the Owner when and if this Agreement is terminated but subject to the restrictions as to their use, as set forth above.

      . SECTION V — ARBITRATION OF DISPUTES — Should any dispute arise hereunder between the Owner and the Engineer as to any of the terms or provisions of this Agreement or the obligations of the parties thereunder, the Owner and Engineer shall submit such dispute to arbitration as follows:
      A. The arbitrator(s) shall be selected and chosen in accordance with the rules and regulations of the American Arbitration Association, reserving to the Owner and Engineer the right to determine whether one or three arbitrators shall be selected and chosen.
      B. The arbitrators shall have full power to investigate such dispute, hear witnesses, examine papers, drawings, and documents, and take professional, expert opinion thereon, and shall arbitrate and decide such disputes to carry out the intentions of the parties, and do justice between them. Their decision shall be a condition precedent to any court action.
      C. In the event the arbitrators are unable to reach an agreement, then the arbitration shall be considered to have been exhausted.
      D. The arbitration under this paragraph shall be conducted in accordance with the rules, regulations and practices established by the American Arbitration Association.

      . LSA-C.C.P. art. 3601 — An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, * * * During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.

      . LSA-C.C.P. art. 3609 — The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. * * *

      . LSA-R.S. 9:4203 — The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.
      The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof. * * *.


author: PRICE, Judge.

text:
    SALE ELECTRIC SUPPLY, INCORPORATED, Plaintiff-Appellee, v. EMCO INCORPORATED et al., Defendants-Appellants.
    No. 14156.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Booth, Lockard, Politz & Lesage by Bennett L. Politz, Shreveport, for defendant-appellant Emco Inc.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appellant John L. Healy & Assoc., Inc.
    Cook, Clark, Egan, Yancey & King by Charles G. Tutt, Shreveport, for plaintiff-appellee Sale Electric Supply, Inc.
    Before PRICE, MARVIN, and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff filed suit to rescind a sale of outdoor light fixtures against its vendor, John L. Healy and Associates, and the manufacturer, Emco, Inc. Healy filed a third party demand against Emco. The trial court rendered judgment in favor of plaintiff against both defendants and in favor of Healy on its third party demand, and further awarded judgment in favor of plaintiff against Emco for attorney fees. Both defendants appeal. We amend the judgment to increase the award for plaintiffs attorney fees and otherwise affirm.

In 1974 the city of Shreveport undertook the construction of lighted outdoor tennis courts as part of a recreational complex facility in the Southern Hills area of the city. Plans for the project were developed by the city’s architect and consulting engineer and included performance specifications for lighting fixtures to be used. The subcontractor responsible for installation of the fixtures arranged to purchase them through plaintiff, Sale Electric Supply, Inc., a retail distributor.

Sale was contacted by David Curd, an employee of John Healy and Associates of Dallas. Healy was a sales representative for several manufacturers of lighting equipment and after discussing the plans and specifications of the project with the city’s architect and engineer, Curd proposed to supply Sale with fixtures manufactured by Emco, Inc., a company specializing in outdoor lighting fixtures. After receiving assurance from Curd that the Emco fixtures would meet the required specifications, Sale accepted his proposal. Emco manufactured the fixtures and sold them to Healy who in turn sold them to Sale.

After the lighting was installed it became apparent that it did not meet the specifications. Attempts to rectify the problems were unsuccessful and Sale was required to replace the light fixtures. This suit ensued.

The trial court found that both Healy and Emco were aware of the performance specifications and warranted that the light fixtures they provided would meet those specifications. Since the fixtures did not meet the specifications the court found them defective and rendered judgment in favor of plaintiff against both defendants. It also held that Emco, as the manufacturer, was presumed to know of the defect and was consequently liable for plaintiff’s attorney fees. It further held that since Healy was merely Emco’s representative and had no actual knowledge of the defect, it was entitled to judgment against Emco on its third party demand.

Emco appeals contending the trial court erred in the following respects:

(1) in finding that Emco had knowledge of the performance specifications:
(2) in finding the light fixtures defective and imputing the knowledge of this defect to Emco;
(3) in finding Healy was Emco’s representative in its transactions with Sale.

Although Healy has also appealed, it makes no assignment of error.

Curd testified that after his initial consultations with plaintiff and the city’s architect and engineer, he contacted Ed Manning, Emco’s president, to determine whether its products could meet the required specifications. He testified that after his discussions with Manning and other Emco employees, Emco suggested a particular fixture and indicated it would be sufficient to meet the city’s needs. At Curd’s request, Emco prepared and sent to plaintiff a drawing showing the dimensions of the court and the proposed number and placement of the- fixtures.

Curd also testified plaintiff later requested that Healy issue a guarantee that the lighting fixtures to be supplied by Emco would meet the performance specifications. Curd contended he again contacted Manning and after discussing the matter with him and obtaining his approval, sent plaintiff a letter stating that the lighting would meet the city’s specifications if installed according to the drawing previously provided by Emco.

Although Manning denied having discussed the performance specifications with Curd, we find no error in the trial court’s conclusions that Emco knew of the specifications and represented that their product would meet them.

Emco also contends there was no defect involved in this case but at most a misrepresentation by Healy as to the quality of the thing sold; and unlike knowledge of a defect, knowledge of misrepresentation cannot be imputed to it.

Civil Code Article 2547 provides:

A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and to damages, including reasonable attorneys’ fees, in favor of the buyer. *

In Aetna Ins. Co. v. General Electric Co., 362 So.2d 1186 (La.App.4th Cir.1978) the court applied this article to a manufacturer with the following explanation:

We note the difference between the manufacturer’s declaring the thing to have a quality it does not have, and failing to declare a defect. Louisiana law imputes to a manufacturer knowledge of his products’ constitution, Moreno’s Inc. v. Lake Charles Cath. High, La. 1975, 315 So.2d 660. The fairness of treating imputed knowledge of defects as “suppressed” by a manufacturer without actual knowledge has been questioned (Campbell, The Remedy of Redhibition: A Cause Gone Wrong, 1974, 22 La.B.J. 27, 29-31), but that problem is not present here. This is not a suppression case but an assertion case. C.C. 1847(5) makes either “an assertion of what is false, or a suppression of what is true” fraud, if designed to obtain an unjust advantage. We deem it an unjust advantage to obtain a sale by misrepresentation. A manufacturer who in fact does not know of a defect in his product cannot reveal it to the buyer. But our manufacturer could have refrained from making an assertion, the truth or falsity of which it did not know. ... If the confessed fact that this manufacturer did not know whether its representation was true does not suffice as knowledge of its falsity for purposes of C.C. 2547, we apply Moreno’s imputation to charge the manufacturer with knowledge that the declared characteristic was not present. Thus the manufacturer is liable for the damages.

From this analysis it is clear that where the manufacturer represents to the buyer that its product will meet certain performance requirements and the product does not in fact meet those requirements, the manufacturer will be presumed to have known that the representations were untrue. See Peoples Furniture and Gift v. Carson Hicks/Friedrichs Refrigeration, Inc., 326 So.2d 919 (La.App.3d Cir.1976). Consequently we must determine whether Emco represented to plaintiff that its light fixtures would meet the performance specifications.

Emco contends the trial court erred in finding Healy to be its representative in the transactions with plaintiff. Although Healy normally sold products for Emco on a commission basis, this particular transaction was accomplished by two distinct sales — one from Emco to Healy and another from Healy to plaintiff. Under these circumstances Emco contends it cannot be bound by any representations made by Healy to plaintiff.

We do not agree. Emco was aware that the light fixtures purchased by Healy were to be resold to plaintiff specifically for the purpose of lighting an outdoor tennis court. It was aware that certain performance specifications were required of the fixtures and represented to Healy that these specifications would be met. When these representations to Healy were made, Emco knew they would be transmitted to plaintiff and even specifically authorized their transmission. Under these circumstances, Healy’s representations to plaintiff regarding the quality of the fixtures were directly attributable to and binding on Emco.

Plaintiff has answered defendants’ appeals seeking an increase in the award of attorney fees. The trial court awarded $4,050 to plaintiff on the basis of $50 per hour for a total of 81 hours. We find an increase of $500 to compensate plaintiff’s attorney for time spent on appeal is reasonable.

The judgment is amended to award a $500 increase in the award of attorney fees and otherwise is affirmed.


author: MARVIN, Judge.

text:
    Cliff FERGUSON et ux., Plaintiffs-Appellants, v. Bobby E. GUNTHER et ux., Defendants-Appellees.
    No. 14158.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Truett West, Farmerville, for plaintiffs-appellants.
    Blackwell, Chambliss, Hobbs & Henry, by Larry Arbour, West Monroe, for defendants and appellees.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this dispute over a 10-foot strip of land, the trial court rejected the demand of plaintiff who had the more ancient title from a common author and upheld defendants’ title on a plea of 10-year acquisitive prescription. Plaintiff appeals. We affirm.

Plaintiff and defendants are owners of rural lakefront property which was originally subdivided into lots approximately 100 X 100 feet. Through mesne conveyances from a common author, each litigant has a recorded title to the 10-foot strip. Plaintiff’s title to Lot 5 and the east 10 feet of Lot 6 (the strip in dispute) dates from, and was recorded, in 1965. Defendants’ title to Lot 6 dates from, and was recorded, in 1968. Plaintiffs action was brought in 1979, more than 10 years after defendants acquired Lot 6.

The common corners of Lots 5 and 6 were marked by iron stakes. Both litigants are in good faith and in corporeal possession of some of the property described in their respective deeds. With the older title from the common ancestor, plaintiff will prevail unless defendants show corporeal possession of the strip sufficient in quality and time to establish title by acquisitive prescription. CC 3479; Clayton v. Langston, 311 So.2d 74 (La.App. 3d Cir. 1975).

The trial court found that the subdivision survey stakes were pointed out to Craig-head (defendants’ predecessor in title) when he purchased Lot 6 in September 1968 from the common author. Craighead immediately cleared the lot to the lot line and then moved an old house onto the lot for use as a camphouse. Craighead periodically and routinely mowed the lot to the line he had cleared during the six years he owned the lot. Defendants purchased the lot from Craighead in 1974 and have since continued the periodic mowing of the lot and use of the property. Either Craighead or defendants erected a small shed on the 10 foot strip and attached a metal awning to the camphouse. This awning overhangs the 10 foot strip by some unstated distance. In 1977-78 defendants began stacking firewood on the strip for use in the camphouse. Defendants use the shed as a place of storage.

Plaintiff’s lot remained uncleared until after he purchased it in December 1977. In August 1978, defendants were advised that plaintiff had the more ancient title to the east 10 feet of Lot 6 and plaintiff’s survey- or placed new iron markers at the corners of the strip. Defendants thereafter removed these markers and erected a fence on the east line of Lot 6. Plaintiff’s suit followed.

The quality of corporeal possession required to defeat an owner in constructive possession and establish title by acquisitive prescription is neither simple nor precise. The peculiar circumstances and the type of land in dispute will determine resolution of the issue in each particular case. Norton v. Addie, 337 So.2d 432 (La.1976); Liner v. Louisiana Land & Exploration Company, 319 So.2d 766 (La.1975); Dunn v. Pipes, 325 So.2d 349 (La.App. 2d Cir. 1976). See CC Arts. 3478, 3487.

Isolated incidents, such as the occasional mowing of farmland by one who claimed adverse possession but who admitted he sometimes mowed at random without differentiation as to the alleged boundary, is not sufficient to support acquisitive prescription. Authement v. Theriot; 292 So.2d 319 (La.App. 1st Cir. 1974). Even periodic mowing of property is not sufficient when a visible boundary (a ditch) exists and the mowing occurs across the visible boundary. Richard v. Comeaux, 260 So.2d 350 (La.App. 1st Cir. 1972).

On the other hand, periodic mowing of unimproved residential property up to the line where an old fence once stood years before, is sufficient corporeal possession to support acquisitive prescription. Wagley v. Cross, 347 So.2d 859 (La.App. 3d Cir. 1977). The same result was reached in Dunn, supra, where the mowing occurred on improved residential property up to where a fence once stood.

The clearing of Lot 6 in this instance to the lot line projected visibly between the subdivision corner stakes is similar in legal effect to the blazing of a line in the woods, Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952), and to the cutting of timber, Bihm v. Voorhies, 241 So.2d 915 (La.App. 3d Cir. 1970). The continued periodic mowing and the use of the strip by defendants, following the clearing of the lot in 1968, is a continuation of the corporeal possession begun by the 1968 clearing by Craighead. CC Arts. 850, 3442.

Neither the notice to defendants that plaintiff had the more ancient title and the setting of the new survey stakes in 1978, nor the corporeal possession of plaintiff begun in December 1977 on Lot 5, interrupted the acquisitive prescription of the 10-foot strip accruing by reason of defendants’ and Craighead’s corporeal possession of the strip which began in 1968. Craighead and defendants’ enjoyment and use of the strip continued uninterrupted for more than 10 years. When plaintiff brought suit in 1979 acquisitive prescription had accrued. CC 3516-3518. Holiday v. Continental Can Co., Inc., 351 So.2d 181 (La.App. 2d Cir. 1977).

The findings, inferences and conclusions of the trial court are supported by the record. At appellant’s cost, judgment is AFFIRMED.


text:
    Shirley Sanders JOHNSON, Individually and as Natural Tutrix of Lakita Johnson, Willie Johson, III, Antonio Johnson, and Andrea Johnson, Plaintiffs-Appellants, v. CHICAGO MILL AND LUMBER COMPANY, Defendant-Appellee.
    No. 14159.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Samuel Thomas, Tallulah, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendant-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The widow and minor children of a decedent appeal a summary judgment rejecting their demands for wrongful death against the corporate employer of the decedent who was fatally injured on the employer’s premises while employed as a boiler attendant. LRS 23:1032. We affirm the summary judgment.

Decedent’s death occurred when a pile of firewood collapsed on him as he was attempting to load some of it on a conveyor belt to a boiler at the sawmill.

These facts were alleged by plaintiffs and are not contested by defendant, who has been, and is paying, worker’s compensation death benefits. To plaintiffs’ tort action, however, defendant’s no cause exception was sustained. Plaintiffs amended their petition and defendant then moved for summary judgment which was directed at plaintiffs’ allegation that the decedent was “outside” his occupation and course and scope of employment when the accident occurred. Affidavits filed in support of the motion for summary judgment clearly establish that decedent was in the course and scope of his employment when fatally injured. Plaintiffs filed no counter affidavits and the motion for summary judgment was correctly sustained. Shepard v. Louisiana Power & Light Co., Inc., 369 So.2d 1196 (La.App. 2d Cir. 1979).

Plaintiffs first alleged that the defendant willfully and wantonly and knowingly kept the firewood piled in an unsafe and dangerous manner and that the decedent’s death was caused by the negligence of the employer. After the exception of no cause was sustained (LRS 23:1032), and at the hearing on the motion of summary judgment, plaintiffs filed a second amended petition, alleging that the employer “intentionally left the material [piled] in a dangerous and unsafe manner, knowing this could cause . . . death .” This allegation was made in an attempt to bring this decedent’s death into the category of an intentional act of an employer toward an employee which may still render an employer liable in tort, notwithstanding the exclusivity of the worker’s compensation remedy.

“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” § 1032, in part.

The meaning of intentional act in the statute was discussed in Guidry v. Aetna Cas. & Sur. Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ refused, in the light of factual allegations not dissimilar to the allegations here. There the plaintiff alleged that the individual owner of the restaurant, the defendant employer, deliberately placed at eye-level an extremely sharp knife in a highly dangerous position with the blade extended over the shelf on which it was placed, directly beside the employee, deliberately and knowingly exposing the employee to the risk of injury. The Court of Appeal affirmed the trial court’s sustaining of an exception of no cause of action to the employee’s suit for damages over the employee’s contention that the placing of the knife in such a position was an intentional act within the meaning of the statute, for which the employer would be liable in damages. We adopt here this paraphrase of that court’s answer.

To subject an employer liable for damages sustained by an employee in the course and scope of his employment, it must be alleged that the employer consciously committed an act which the employer actively desired and believed was substantially certain to result in injury to the employee. Otherwise, the employee’s petition fails to state a cause of action for damages against his employer.

The Guidry action was against an individual employer. This action is against a corporate employer, but the legal result is the same. Even if we choose to honor the principle of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), that case is highly inapposite because the defendant there was not the employer, but a co-employee of the plaintiff. See Malone-Johnson, Worker’s Compensation, “What Constitutes A Compensation Remedy”, Vol. 14, § 365, pp. 161-166. See Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979).

Plaintiffs’ factual allegations are not changed by the last amendment (that the employer intentionally left the material piled in a dangerous manner, knowing that this could cause death). The employer’s exception of no cause of action, which was sustained before summary judgment, was directed at plaintiffs’ allegations that the employer willfully and knowingly kept the materia] piled in a dangerous manner. Willful has been given the same meaning in the law as intentional (intending the result). See Rushing v. State, through La. Health, etc., 381 So.2d 1250 (La.App. 1st Cir. 1980). See also Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App. 1st Cir. 1979); Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1st Cir. 1980).

We notice plaintiffs’ failure to state a cause of action against the employer even in the most recent amendment filed at the hearing on the motion for summary judgment. CCP 927.

The summary judgment appealed from is AFFIRMED at appellant’s cost.


text:
    Ronald A. JONES, Plaintiff-Appellee, v. Jeanette M. JONES, Defendant-Appellant.
    No. 14160.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    James B. Wells & Associates by James B. Wells, Bossier City, for defendant-appellant.
    Glenn F. Armstrong, Bossier City, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The wife appeals a summary judgment dismissing her action to annul a 1978 separation judgment in favor of her husband on the grounds that her “consent” to the separation was vitiated by fraud and ill practices. CCP 2004.

The trial court found no genuine issue of fact because no attempt was made by the wife to file depositions and affidavits against the motion for summary judgment until the date it was heard. CCP 966. Counter affidavits must be filed prior to the day before the hearing or they cannot be considered. Bonnette v. Century Ready-Mix Corp., 369 So.2d 1201 (La.App.2d Cir. 1979). On this point the lower court was correct. With respect to depositions, the lower court was incorrect. We consider that the depositions on file in this matter establish a genuine issue of material fact and reverse and remand.

Plaintiff’s petition generally is grounded upon allegations that a disbarred attorney “arranged” the separation, telling her it made no difference who filed for the separation, that the disbarred attorney arranged for one attorney to represent her husband and for another attorney to represent her, that she never communicated with her attorney, and that she was led to believe that the alimony she would be paid would not terminate with a divorce. The depositions of these parties dispute the husband’s affidavit that the wife left the marital domicile without cause and that he did not tell his wife she would continue to receive alimony after the divorce.

Depositions introduced the day of the hearing of a motion for summary judgment are admissible and should be considered by the trial court. See Thomas v. Signal Insurance Company, 236 So.2d 874 (La.App.3d Cir. 1970). Indeed, CCP Article 966 allows the opposing party to serve counter affidavits prior to the day of the hearing but does not require the same delay for the filing of depositions. The most obvious reason why affidavits and depositions are treated differently is that an affidavit is a creature of ex parte effort while a deposition, in order to be admissible, requires that notice and opportunity to interrogate the deponent be given the adverse litigant. See Chapter 3, Title III, Art. 1421, et seq., Louisiana Code of Civil Procedure.

Summary judgment is REVERSED and this cause is remanded.


text:
    The LOMAS & NETTLETON COMPANY, Plaintiff-Appellee, v. J. W. MOORE and Mary Bryant Moore, Defendants and Third Party Plaintiffs-Appellees, First Fidelity Mortgage Company, Third Party Defendant-Appellant.
    No. 14164.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    En Banc. Rehearing Denied July 24, 1980.

      Boles & Mounger by Charles H. Ryan, Monroe, for third party defendant-appellant.
    Horton & Jones by Donald G. Horton, Coushatta, for defendants and third party plaintiffs-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

In July, 1972, J. W. Moore and his nephew, James Moore, purchased new homes across the street from each other in a subdivision near Coushatta, Louisiana, under the FHA “235” loan assistance program. In connection with the financing of his purchase each vendee executed a mortgage in favor of Bridges Loan & Investment Company, Inc. (“Bridges”), Jackson, Mississippi. In turn, Bridges placed the loans in a GNMA mortgage pool. In October, 1972, the J. W. Moore loan was sold to The Lomas & Nettleton Company (“Lomas & Nettle-ton”), Dallas, Texas, and the James Moore loan was sold to First Fidelity Mortgage Company (“First Fidelity”), Monroe, Louisiana.

Through an unusual concatenation of circumstances both J. W. Moore and James Moore received loan packets from First Fidelity and began making their monthly loan payments to that institution. Since J. W. Moore was not paying Lomas & Nettleton, the holder of his mortgage note, this borrower and his wife were sued by Lomas & Nettleton on April 30, 1974 to foreclose on their mortgaged property by executory process. The defendants answered, reconvened for damages, and filed a third party demand against Bridges and First Fidelity for damages. First Fidelity pled the alleged contributory negligence of J. W. Moore as a defense.

Trial on the merits was had on September 19,1977 and judgment rendered on October 12, 1977 in favor of the third party plaintiffs against First Fidelity awarding general damages of $5,000.00 and attorney fees of $5,000.00. This judgment was signed on March 20,1978. On the same date a second judgment was signed, pursuant to a joint stipulation of the parties and specifying that it did not affect the prior judgment, ordering First Fidelity to remit to third party plaintiffs all payments erroneously received and giving third party plaintiffs ten days thereafter in which to bring up-to-date their loan with Lomas & Nettleton, in default of which the latter would be entitled to judgment against its mortgage debtors as prayed for in the original petition.

On August 20,1979, after the granting of a new trial for the restricted purpose of receiving specified evidence and hearing reargument, another judgment was rendered and signed setting aside the judgment “entered” on March 20, 1978; ordering First Fidelity to refund to third party plaintiffs a specified sum; rendering judgment in favor of Lomas & Nettleton against the original defendants for the amount due on their delinquent loan and ordering satisfaction thereof by seizure and sale of the mortgaged property, but staying execution for ten days to give the defendants an opportunity to make current their loan payments to plaintiff; and rendering judgment in favor of third party plaintiffs against First Fidelity for $5,000.00 in general damages.

First Fidelity has appealed from the judgment against it on the third party demand. Appellant has filed in this court an exception of no cause of action, contending that the third party demand neither states a cause of action for damages for defamation nor for negligent infliction of mental distress and embarrassment.

It is obvious that the confusion which preceded and precipitated this litigation arose because of the similarity in the names of the two borrowers who happened to close their loans at the same time, executing mortgages on lots in the same subdivision.

From the record it appears that the snarl began when an employee of First Fidelity, receiving loan papers on James (NMI) Moore, noticed that a plat of survey in the loan packet referred to a “James W. Moore” and set up the loan file in the name of “J. W. Moore.” Thereafter, payments received from either J. W. Moore or James Moore were routinely credited to the one loan account. Since the two were understandably paying more on the loan than the payment schedule required, First Fidelity wrote James Moore on at least three occasions to inform him that he was prepaying his loan. Some of these payments were even remitted to that party.

It is also significant, and a factor in the muddle, that both J. W. Moore and James Moore received their mail “General Delivery, Coushatta, La.” for quite sometime after their loan closings.

Evidence received at the trial established that First Fidelity was not aware of the loan mix-up until it was contacted by an attorney acting on behalf of J. W. Moore after the suit was filed by Lomas & Nettle-ton in 1974. Prior to that time J. W. Moore had made fifteen payments, for a total of $955.08, on the James Moore loan. This amount was refunded to him by First Fidelity. Subsequently, J. W. Moore mailed 44 money orders to First Fidelity, all of which were eventually returned.

It is in this factual context that the legal issues will be addressed.

EXCEPTION OF NO CAUSE OF ACTION

Contrary to the appellant’s argument, the third party demand is not based upon an action for defamation but, in essence, based upon well-pled allegations of fact, seeks damages for humiliation and embarrassment. There is no question but that damages of this nature are recoverable. See Stone, Louisiana Civil Law Treatise, Tort Doctrine (1977), § 14, p. 23. Also Edwards v. Butler, 203 So.2d 90 (La.App.2d Cir. 1967). Therefore, the exception of no cause of action is overruled.

LIABILITY OF FIRST FIDELITY

The third party demand is an action in tort under Louisiana Civil Code Article 2315. An analysis of First Fidelity’s liability to J. W. Moore requires that certain questions be posed and answered in logical progression.

First, did First Fidelity have a duty to J. W. Moore and, if so, when did it arise? Obviously the duty was to return monies which were not owed by J. W. Moore to First Fidelity, and that duty arose when the payments were received.

Next, was that duty violated? Here again, there is no question but that First Fidelity did not in fact return any payments until after suit was filed against J. W. Moore by Lomas & Nettleton. Clearly, the duty was violated.

Was First Fidelity negligent in the violation of that duty? Based upon an examination of the record it is concluded that First Fidelity was negligent in the following respects:

(1) Setting up a loan file in the name of “J. W. Moore” when the loan papers from Bridges Investment Company showed the borrower’s name as “James Moore.”
(2) Failing to make an investigation, to clear up the confusion, when the James Moore loan was being regularly prepaid and James repeatedly denied prepaying.
(3) Failing to investigate the reason for the obvious disparity in the payments made by J. W. Moore and those due by James Moore.

What “injury” was sustained by J. W. Moore as a result of First Fidelity’s negligence? The injury sustained was the embarrassment and humiliation that naturally flows from being sued on an indebtedness that has actually been paid, even though to the wrong party.

Was J. W. Moore contributorily negligent prior to the filing of the suit against him by Lomas & Nettleton? According to the record, this third party plaintiff had an eighth grade education and no experience in financial matters. There was no evidence that he should have been alerted to the fact that his payments were being sent to the wrong mortgage holder. In fact, the mailing to one of loan cards with his name at the top would normally lead the recipient to believe that he was sending his payments to the proper party. Therefore, J. W. Moore was not guilty of contributory negligence.

It follows from the above that J. W. Moore is entitled to recover damages from First Fidelity for his humiliation and embarrassment because of being sued by Lo-mas & Nettleton.

QUANTUM

The trial judge awarded third party plaintiffs the sum of $5,000 in general damages “to their reputation, humiliation and embarrassment. ’ ’

It is now well established that before an appellate court may change an award made by a trial court the record must clearly reveal that the trier of fact abused his discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976); Reck v. Stevens, 373 So.2d 498 (La. 1979).

The overwhelming majority of Louisiana appellate cases awarding damages for humiliation and embarrassment involve actions for wrongful seizure of property. Representative of those cases and typical of the awards are:

Edwards v. Butler, 203 So.2d 90 (La. App.2d Cir. 1967), $200 damages for humiliation and embarrassment for unlawful repossession of cash register.
Moses v. American Sec. Bank of Ville Platte, 222 So.2d 899 (La.App.3rd Cir. 1969), $200 general damages for wrongful seizure of school bus.
Dubois v. Travelers, 276 So.2d 814 (La. App.3rd Cir. 1973), $750 to plaintiff who for a ten month period beginning with the seizure did not know whether he would retain his home.
Samaniego v. Horseless Carriage, Inc., 350 So.2d 193 (La.App.2d Cir. 1977), $100 nominal damages for wrongful seizure of an automobile.
Phillips v. Great So. Mortgage & Loan Corp., 350 So.2d 1279 (La.App.3rd Cir. 1977), $750 for constructive seizure of plaintiff’s home.
Mid-State Homes v. Bice, 361 So.2d 275 (La.App.1st Cir. 1978), $1,000 damages for wrongful seizure.

It is apparent from a survey of these cases that the maximum award was $1,000.00. Furthermore, the actions of the tortfeasors appeared to be more objectionable and flagrant than those of First Fidelity.

Evidence offered in this case to prove damages consisted of the following testimony of J. W. Moore:

Q. Have you ever been foreclosed on before?
A. No, sir.
Q. Were your neighbors aware of all this going on?
A. Yes, sir.
Q. Does it bother you?
A. Yes, sir, it sure does.

Mrs. Moore stated that she had “really been worried about it.”

It is recognized that suit instituted against one for indebtedness that has been paid will naturally cause a certain amount of embarrassment, particularly in a rural community where information of that nature lends itself to speedy and widespread dissemination. However, there was no evidence that the third party plaintiffs suffered undue humiliation and embarrassment. In fact, they remained in their residence for some five years after the suit was filed.

For these reasons, we conclude that the record clearly reveals that the trial judge abused his wide discretion in fixing damages and that the award is excessive. Further, after considering all of the circumstances of the case, an award of- $1,000.00 is deemed adequate to compensate third party plaintiffs for their humiliation and embarrassment occasioned by the Lomas & Net-tleton foreclosure suit.

Accordingly, the judgment of the trial court is amended by reducing the award in favor of third party plaintiffs and against third party defendant from $5,000.00 to $1,000.00, with legal interest from judicial demand until paid, and, as amended, is affirmed. Appellant shall pay the costs of the district court while the costs of appeal shall be paid by appellees.

      . This was converted to ordinary process by amended petition filed on June 5, 1975.

      . The action against Bridges was subsequently dismissed.

      .On February 4, 1977, First Fidelity filed suit against James Moore to foreclose on his property by executory process. For trial purposes this was consolidated with the Lomas & Nettle-ton suit against J. W. Moore. However, the litigation involving James Moore has been settled and is not involved in this appeal.

      . At that time First Fidelity only used initials and not first names on its loan files.

      . November 12, 1973; November 4, 1974; June 6, 1975.

      . Although the tax information sheets on both borrowers prepared in connection with their loan closings showed numbered mail boxes on Coushatta rural mail routes, both received their mail by general delivery when the first loan papers were mailed.

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

      . It should be noted that J. W. is not receiving damages for loss of his home. The record does not show that this actually occurred, although a sheriffs sale is alluded to in the briefs, apparently having taken place after the August 20, 1979 judgment. Be that as it may, J. W. Moore had ample opportunity after the suit was filed in 1974 to use the refunds from First Fidelity to make his loan current with Lomas & Nettleton.


author: JASPER E. JONES, Judge.

text:
    The BOSSIER CENTER, INC., Plaintiff-Appellant, v. PALAIS ROYAL, INC., Defendant-Appellee. PALAIS ROYAL, INC., Plaintiff-Appellant, v. The BOSSIER CENTER, INC., Defendant-Appellee.
    Nos. 14166, 14167.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.

      Cook, Clark, Egan, Yancey & King by Charles G. Tutt, Shreveport, for Bossier Center, Inc.
    Wiener, Weiss, Madison & Howell by James R. Madison, Shreveport, for Palais Royal, Inc.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

A violent tornado which struck Bossier City on December 3,1978, is the underlying cause of these consolidated cases. The Bossier Center, Inc. (Center) leased premises in its shopping center to Palais Royal (Palais) whose clothing store was heavily damaged by the tornadic forces. Shortly after the tornado, Jay Kline, President of Palais Royal, informed the Center that Palais Royal would be vacating the premises because it elected to declare the lease to be null due to the extensive damage sustained by the leased premises in the tornado. Palais filed a declaratory judgment action seeking a determination that the lease was ended because of the damages done to the leased premises by the tornado. The Center filed a separate suit against Palais to accelerate the rental payments for the remaining years of the lease and for loss of revenue, future loss of revenue, merchants’ dues, and damages to the leased premises caused by Palais while moving from the building. The cases were consolidated for trial.

The trial court held Palais did not have the right to cancel the lease because although the premises were seriously damaged, they were not partially destroyed. The trial court found Center was not entitled to accelerate the rent installments because of its failure to repair the leased premises. It also held Center did not prove it was entitled to damages, either in the form of lost income or reimbursement for any alleged damage done to the premises. Both parties appeal.

On December 19, 1974 the Center leased 20,500 sq. ft. to Palais within its shopping center to be used as a men’s, ladies’, and children’s ready-to-wear clothing store. The lease period was ten years. The Palais area was remodeled by the Center in preparation for occupancy by Palais at a cost of approximately $275,000. Palais then spent about $150,000 on decorative and merchandising fixtures.

Palais was severely damaged by the tornado. Part of the roof was blown off and other portions were so severely damaged that over Vs of the roof had to be replaced at a cost of almost $50,000. The wind and rain destroyed substantially all Palais’ merchandise and stock. The floor was inundated and there was substantial evidence that all parquet wood flooring and carpeting would have to be replaced. The electrical system was heavily damaged and one electrical contractor would not guarantee the system unless he replaced all wiring and fixtures. The air conditioning units located on top of the building were heavily damaged. The ceiling tile and insulation were blown out or exposed to rain, humidity, and moisture. One witness testified that much of the interior sheet rock walls would have to be totally replaced because of water damage. The large sign in front of the store was razed by the tornadic gusts.

The issues on appeal are (1) did Palais establish the leased premises were partially destroyed and for that reason it was entitled to cancel the lease? (2) if the lease is not subject to cancellation is the Center required to repair the premises as a condition precedent to accelerating all unpaid rent? and (3) did Center prove it was entitled to recover damages from Palais?

LSA-C.C. art. 2697 provides:

“If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.”

LSA-C.C. art. 2700 states:

“If, during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs can not be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience he undergoes thereby, and though he be deprived either totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessened in proportion to the time during which the repairs have continued, and to the parts of the tenement for the use of which the lessee has thereby been deprived.
And the whole of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house or the room and to take another house, while that which he had leased was repairing.”

A review of these two Articles establish that where partial reconstruction is required to the leased premises, the lease may be cancelled but if only repairs are necessary the lease may not be subject to cancellation. The lessee is given the exclusive right to cancel the lease if the premises are partially destroyed. See Chivleatto v. Family Furniture & Appliance Center, 196 So.2d 298 (La.App. 4th Cir. 1967).

The distinction to be drawn between a partial destruction requiring reconstruction and a mere damage requiring only repair has been considered many times in our jurisprudence in cases involving deterioration, fire, floods, and other cas fortuit. The jurisprudence allows expert testimony as to the extent of restoration (whether repairs or reconstruction is required) to help distinguish between injury and partial destruction. See XXX Tulane Law Review 474. The case law sets out other criteria to be used to determine whether a partial destruction or a mere injury has occurred, such as — (1) length of time the repairs would take, (2) the partial or absolute deprivation of lessee’s use of the premises, (3) the length of time lessee would be displaced, (4) damage done to the lessee’s stock, goods and merchandise, (5) the amount paid by the insurer of the building to the insured (as compared with the value of the building prior to damage), (6) the cost of repairs to the premises (as compared with the total value of the pre-damaged premises), and (7) to what degree and which parts of the building are damaged. See Chivleatto, supra; Treigle Sash Factory v. Saladino, 211 La. 945, 31 So.2d 172 (1947); Meyer v. Henderson, 49 La.Ann. 1547, 16 So. 729 (1894); Bernstein v. Bauman, 170 La. 378, 127 So. 874 (1930); Caffin v. Redon, 6 La.Ann. 487 (1851); Brunies v. Police Jury of Parish of Jefferson, 237 La. 227, 110 So.2d 732 (1959); Vincent v. Frelich, 50 La.Ann. 378, 23 So. 373 (1898); Viterbo v. Friedlander, 120 U.S. 707, 30 L.Ed. 776, 7 S.Ct. 962 (1887); Jackson v. Doll, 109 La. 230, 33 So. 207 (1902); Goldberg v. Porterie, 2 La.App. 645 (2d Cir. 1925); Thomas v. Soodhalter, 19 So.2d 885 (La.App. 2d Cir. 1944).

All the cases cited turn on the individual facts and circumstances. They variously found partial destruction and terminated the lease or concluded only damage not amounting to a destruction had occurred and refused to end the lease, but all used one or more of the above criteria in making this determination.

In Meyer v. Henderson, supra, damage that was construed as partial destruction entitling a lessee to demand cancellation was described as follows:

“But when the partial destruction has been of such a nature as to menace discomfort to the tenant during the entire term; to cause the tenant to abandon the premises, in order that repairs may be made; when the premises are no longer suitable for the purposes for which they were leased, — in such cases it is clear that the lease should be annulled. The partial destruction of the building leased by plaintiffs from defendants made it entirely unfit for the purposes for which it was leased. It was a wreck. It was not habitable. It was unfit for the storage of goods and merchandise. The necessary repairs to it required some months for their completion.” Meyer, supra, 16 So. at 729-730.

The court here annulled the lease which had two years remaining of its term.

The Center offered testimony of numerous witnesses who qualified as experts in construction, all of whom minimized the effect of the tornado upon the leased premises. The purpose of this testimony was to establish there had been no partial destruction of the leased premises. This evidence was offered to establish only repairs were necessary for the restoration of the premises which Palais was required to endure under the provisions of LSA-C.C. art. 2700.

The testimony of the two architects offered by Palais and Center was inconclusive on the issue of repair versus reconstruction.

Pictures in evidence revealed a large hole in the roof (testified by one of Center’s experts to be 750 sq. ft.) where the entire roof structure was blown away. Other pictures show large holes in the roof and extensive areas where only a few pieces of sheet iron across steel beams remain, the wind having removed the zonite and other material used in the construction of the roof. Pictures also establish extensive electrical conduit and light fixture damage. These photographs also reveal extensive air condition conduit damage and substantial destruction to interior ceilings. The testimony of Palais’ witnesses, who included electrical, air conditioning, and acoustical tile contractors, further established the scope and extent of the damage. The preponderance of the evidence established almost total destruction to lh of the roof, substantial damage to the floor, interior ceiling, walls, electrical and air conditioning system.

The totality of the damage ($200,000 plus) in relation to the value of the building ($1,000,000 plus) shows 20% or more of this modera retail store was destroyed, exclusive of $150,000 interior decorating costs incorporated into the leased premises by Palais, all of which were destroyed. The leased structure and component parts of it essential to the operation of a modern clothing store were so extensively damaged that Pa-lais would have been totally evicted from the premises for four to seven months while the necessary rebuilding of its store was being accomplished.

We conclude that because of the severity and nature of the damages, with the resulting total eviction of the premises for some months (because of the time required for restoration), a partial destruction of the leased premises has occurred. Partial reconstruction will be necessary within the contemplation of LSA-C.C. art. 2697 rather than only repairs which are referred to in LSA-C.C. art. 2700. This conclusion is not incompatible with the factual findings of the trial judge as reflected by the following quote from his reasons for judgment:

“There is no question but that the leased premise were severely damaged. Part of the roof was blown off and the wind and rain substantially ruined all the merchandise belonging to Palais Royal. Much of the floor was completely under water. Much of the ceiling tile was either blown out, displaced, or exposed to moisture. There was damage to the electrical system and the air conditioning units which were located on top of the building, a large display sign in front of the building was blown away. Substantial damage was done to the interior and cost of repair ‘approximately $150,000 to $250,000’ and that the total value of the leased premises is approximately $1,125,000 .
The evidence also shows that it will take approximately two to four months for the necessary repairs to be made to the lease premises and that another two to three months would be required by Palais Royal for repairs by its design specialist. Thus the premises would not be ready to use for several months.”

The only error made by the trial judge was he concluded the building was structurally sound and he characterized the havoc wrought by the tornado as severe damage when he should have found it was partial destruction.

In the case of Caffin v. Redon and Brunies v. Police Jury of Parish of Jefferson, supra, substantial replacement of weight-bearing walls was construed to be reconstruction of “partially destroyed” leased premises within the contemplation of LSA-C.C. art. 2697. We find the roof of Palais analogous to the walls in those cases. It is the top of the four sides of a building and its function is no less important than is the purpose served by the walls. The roof is essential to the protection of all the interior of the building and no doubt the partial destruction of the roof of Palais subjected the interior of the building to the winds and rain of the tornado resulting in a substantial portion of the other damage described.

Palais is entitled to have the lease can-celled under the provisions of LSA-C.C. art. 2697 and therefore we find no need to decide its contention that it is entitled to have the lease cancelled under the provisions of LSA-C.C. art. 2699.

Because the lease is a nullity due to Palais’ election to terminate, the Center is not entitled to the acceleration of the unpaid rent installments.

The trial judge found that the Center failed to establish any of the damages sought by it and the evidence fully supports this factual determination.

The judgment appealed in Palais Royal, Inc. v. Bossier Center, Inc., No. 14,167, is REVERSED and we render judgment therein cancelling the lease.

The judgment appealed in Bossier Center, Inc. v. Palais Royal, Inc., No. 14,166, rejecting plaintiff’s demands for rent and damages is AFFIRMED.

All costs in these consolidated cases in the trial court and on appeal are assessed against Bossier Center, Inc.

      . LSA-C.C. art. 2699—If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls shall intercept the light of a house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity.


text:
    Wilbert G. EBEY, Plaintiff-Appellant, v. Bailey GRANT, Defendant-Appellee.
    No. 14168.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Charles R. Blaylock, Monroe, for plaintiff-appellant Wilbert G. Ebey.
    Grant, Scott, Dean & Kneipp by V. Gerald Dean, Monroe, for defendant-appellee Bailey Grant.
    Before PRICE, HALL and FRED W. JONES, JJ.
   PRICE, Judge.

Plaintiff filed this mandamus action seeking an order directing the sheriff of Ouachi-ta Parish to accept appearance bonds written by him as agent for Cotton Belt Insurance Company. The trial court held it lacked jurisdiction to grant the relief sought and dismissed plaintiff’s petition. Plaintiff appeals. We note our own lack of jurisdiction and transfer the appeal to the Louisiana Supreme Court.

Plaintiff’s petition alleged that he has been licensed by the state and the city of Monroe to engage in the business of issuing bail bonds; that he is an authorized agent for the Cotton Belt Insurance Company, which is licensed and authorized to do business in Louisiana; and that the sheriff had issued a directive to his deputies to refuse bonds furnished by plaintiff as agent for Cotton Belt. Plaintiff prayed that an order issue directing the sheriff and his agents to accept appearance bonds written by plaintiff as agent for Cotton Belt or show cause to the contrary. An alternative writ issued and although the sheriff did not file a written answer prior to the time fixed for hearing as required by La.C.C.P. Art. 3783, he did appear at the hearing with his attorney.

The trial court, on its own motion, held it did not have jurisdiction in a mandamus proceeding to grant the generalized relief sought and dismissed plaintiff’s petition without hearing evidence. The court found that the relief sought could not be granted absent an action on a specific bond which had been refused by the sheriff. Plaintiff sought writs in this court, which were refused, and subsequently appealed.

It is well settled that while an action to forfeit a bail bond is a civil proceeding and subject to the rules of civil procedure, it is treated as a criminal proceeding for the purpose of appellate jurisdiction. State v. United Bonding Insurance Co. of Indianapolis, Ind., 244 La. 716, 154 So.2d 374 (1963); State v. Kunzler, 248 La. 133, 177 So.2d 112 (1965); State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971); State v. Kaercher, 380 So.2d 1365 (La.1980). It is also settled that an action to annul a judgment of forfeiture is criminal for appellate purposes. Gennuso v. State, 339 So.2d 335 (La.1976); State v. Johnson, 342 So.2d 863 (La.1977).

Our review of the above cited authorities convinces us that appellate review of the judgment sought to be appealed lies with the Supreme Court. Although bail bonds are private contracts they are an integral part of the criminal justice system and all proceedings involving them have been considered merely incidental to the underlying criminal proceedings. See C.Cr.P. Arts. 311-343, State v. Armstrong, 364 So.2d 558 (La.1977); and the above cited authorities. Since the present case presents important questions concerning the sheriff’s duty to accept bail bonds and his authority to question their sufficiency; and since the resolution of these questions will necessarily have an impact on a criminal defendant’s right to bail upon posting the required security, we find review of this judgment should lie to the court with exclusive appellate jurisdiction in criminal cases.

For the foregoing reasons, the appeal is transferred to the Louisiana Supreme Court.


text:
    Judy Carol PICKETT, Plaintiff-Appellee, v. Roy Layne PICKETT, Defendant-Appellant. Roy Layne PICKETT, Plaintiff-Appellant, v. Judy Bamburg PICKETT, Defendant-Appellee.
    Nos. 14172, 14205.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.

      Freeman & Hall by J. Stacey Freeman, Shreveport, for plaintiff/defendant-appel-lee Judy Bamburg Pickett.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

In these consolidated cases both parents sought custody of their six-year-old girl. The court awarded custody to the mother and granted her $250 per month child support, with an increase to $300 effective January 1, 1980. The father appeals and we amend the judgment to delete the January 1, 1980, increase and otherwise affirm.

The father’s primary contention is that the trial court erred in not finding the mother unfit to have custody of her daughter and that it would be in the child’s best interest to award him custody. He also contends the trial judge’s award of $250 per month was excessive and that the court’s decision to increase the award at a later date was an abuse of discretion.

The parties physically separated on September 29, 1979. The child remained with her father at that time, but only because the mother was prevented from leaving the home with her daughter.

In support of his contention that the ap-pellee was unfit, appellant offered the testimony of three persons; his brother, his cousin, and a close friend, who testified they each had committed adultery with ap-pellee on several occasions in 1977. Appel-lee denied she had sexual relations with any of these witnesses and contends appellant threatened to present such testimony if she persisted to seek custody of the child. In his oral reasons for judgment, the trial judge alluded to the fact that these confessed adulterers were closely associated with the husband and obviously found their testimony failed to establish the mother’s unfitness.

Other evidence presented to show the alleged unfitness of appellee was testimony of appellant that his wife went out dancing and would return late at night as often as three times a week. Although appellee admitted she had done this on occasion, she contends her husband frequently accompanied her on these outings and when he did not, she always informed him of her whereabouts.

The Supreme Court in Fulco v. Falco, 259 La. 1122, 254 So.2d 603 (1971) and again in Monsour v. Monsour, 347 So.2d 203 (1977) mandated that:

Upon appellate review the determination of the trial court in child custody matters is entitled to great weight and its discretion on the issue will not be disturbed on review in absence of a clear showing of abuse.

Appellant contends the trial court erroneously based its findings on the maternal preference rule which he contends is contrary to C.C. Art. 146 as amended in 1979. From our examination of the record, we find no basis for appellant’s contention. The record seems clear that the trial judge, after hearing the testimony of all the witnesses and seeing their demeanor chose to believe the mother’s testimony over that presented by the father and determined that it would be in the best interest of the child to be placed in the care and custody of her mother. We find no error in these conclusions.

At the time of the hearing appellant was commuting to a nearby university and was scheduled to graduate with a degree in sociology sometime before January 1,1980. Although he had not yet secured employment associated with his studies, he did maintain a part-time job which netted him a slightly higher salary per month than appellee was earning as a full-time employee. Nevertheless the evidence shows this was a “standby” position and on past occasions he was forced to collect unemployment benefits.

We do not find the evidence to support a need for any sum in excess of $250 for child support which is the amount prayed for by appellee. In addition the accelerated award from $250 to $300 per month on January 1,1980, was based on the mere assumption that appellant would be successful in immediately obtaining employment at that time which would increase his earnings. We are of the opinion the trial court erred in ordering the accelerated increase under these circumstances.

For the reasons assigned the judgment awarding custody to appellee is affirmed and the judgment awarding child support is reversed insofar as it orders an increase to $300 beginning January 1, 1980, and is otherwise affirmed.

All costs are assessed to appellant, Roy Layne Pickett.


author: HALL, Judge.

text:
    Harold O. RANKIN, Plaintiff-Appellant, v. STATE of Louisiana Through its DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellee.
    No. 14182.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.

      Guerriero & Anzalone by Joe D. Guerrie-ro and Rick C. Anzalone, Monroe, for plaintiff-appellant.
    Michael C. Barron, Sp. Counsel, Legal Section, Baton Rouge, for defendant-appel-lee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

After appellant was convicted on March 14, 1979 of driving while intoxicated (his third conviction for that offense), he was notified by the Department of Public Safety that his driving privileges would be suspended for a period of one year. Within 30 days after receipt of the notice appellant filed suit in the district court to enjoin the suspension and, alternatively, for an order requiring the Department to issue him a restricted driver’s license in accordance with LSA-R.S. 32:415.1. The Department denied appellant’s entitlement to a restricted license because defendant’s license had allegedly been suspended on prior occasions and defendant had been issued a restricted license on a previous occasion, rendering him ineligible to receive a restricted license under the statute. The Department also denied appellant’s allegations that revocation of his driving privileges would deprive him or his family of the necessities of life or would prevent him from earning a livelihood.

After trial the district court held that appellant was not entitled to a restricted license under the provisions of the statute because of the prior suspensions and receipt of a restricted license and, additionally, because the evidence did not establish that revocation of the license would prevent appellant from earning a livelihood. Appellant appealed.

On appeal appellant contends that LSA-R.S. 32:415.1 is unconstitutional in that it makes no distinction as to the type of previous suspension which would bar the granting of a restricted driver’s license and because the statute sets no time limitation between the prior suspension and the latest suspension which is the basis for the application for the restricted license. Appellant further contends that he should not be barred from invoking the provisions of the statute because the prior suspension and issuance of a restricted license occurred after the date of the offense for which his license is currently being suspended, though prior to the conviction for that offense.

The plea of unconstitutionality need not be considered by this court because it was not raised in the district court and also because it would gain appellant nothing to have the statute under which he seeks relief from the mandatory suspension required by LSA-R.S. 32:414 B(2) declared null.

It is also unnecessary for this court to consider the correctness of the trial court’s ruling that appellant is barred from receiving a restricted license because of pri- or suspensions and issuance of a restricted license. Assuming that appellant is otherwise entitled to seek the issuance of a restricted license under the statute, we nevertheless find no error or abuse of discretion in the trial court’s determination that plaintiff failed to establish the revocation of his license would prevent him from earning a livelihood or deprive him or his family of the necessities of life.

Appellant, an automobile salesman, testified that it was necessary for him to be able to drive a car to and from work and to be able to drive in the course of his work in order to demonstrate cars, deliver cars, pick up cars at other dealers, and the like. He testified that if he were unable to drive, his job would be terminated. However, when questioned, he testified that he had not discussed the situation with his employer and had not been told he would be terminated. The employer was not called as a witness. The trial court found that although it might bé a handicap for a car salesman not to be able to drive, appellant’s fear of losing his job was speculation.

The statute gives the district court discretion in these matters. We find no abuse of discretion.

For the reasons assigned the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . LSA-R.S. 32:415.1:
      “A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. .
      “C. . . The restricted driving privileges for this Section may be allowed to a person only once." (Emphasis supplied)

      . After appellant’s second conviction for DWI in August, 1977, notice of suspension was sent to him by certified mail, at his last address, but he never received the notice and never surrendered his license. Appellant’s license was suspended for refusal to take a blood alcohol test when arrested for DWI on January 23, 1978 (the same offense for which he was convicted on March 14, 1979) under LSA-R.S. 32:661, et seq., after which he petitioned for and was issued a restricted license by the court on May 25, 1978.