text:
    Nell ATKINSON, Plaintiff-Appellee, v. Leon RICHESON, Defendant-Appellant.
    No. 14385.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      McConnell & Associates, by Charles McConnell, Springhill, for plaintiff-appellee.
    Campbell, Campbell & Johnson, by John T. Campbell, Minden, for defendant-appellant.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Defendant, Leon Richeson, appeals a judgment evicting him from the leased premises for failure to timely pay a rental installment. We reverse.

Roy Edwards owned the subject property upon which a restaurant is located. He leased the property to defendant beginning on February 23, 1978. Plaintiff bought the property subject to the lease in September of 1978. Plaintiff sued defendant in October of 1979 seeking a cancellation of the lease on the grounds that defendant failed to keep the premises in good repair. While this suit was pending, the rent for February 23, 1980 became due; but defendant failed to pay it.

The lease contained the following clause: Failure to pay any monthly lease rental within ten (10) days after the same became due shall mature all lease payments at the option of the lessors, which right is granted and given in addition to and not in derogation of the right of the lessors to terminate the lease for failure to pay the rent, which right is expressly reserved to the lessors, at their option.

The ten day grace period expired on March 5, 1980. On March 6, 1980, plaintiff filed an amended petition to seek cancellation of the lease for non-payment of the February rent. Defendant was served with this petition on March 13. On March 10 defendant discovered his wife had not paid the rent, and he mailed plaintiff a check for the February 23 payment. On that same day plaintiff sent defendant an eviction notice pursuant to LSA-C.C.P. art. 4701. By letter dated March 11, plaintiff returned defendant’s check of March 10 and advised him she had cancelled the lease. Defendant discovered that the check which he sent plaintiff on March 10 did not contain the name of the drawee bank due to a printing error and on March 20 he sent her another check for the rent due February 23, and a check for the rent installment due March 23. Plaintiff apparently didn’t notice the printing error on the check of March 10 as she didn’t mention this deficiency in her letter to plaintiff of March 11 when she returned the check. Plaintiff returned these two checks to defendant and amended her petition to add a rule for eviction against defendant. It is the judgment of eviction rendered in this proceeding that is here appealed.

There is no place of payment provided for in the lease. However, plaintiff and defendant agreed in December, 1978 for defendant to begin mailing the rent payment to plaintiff at her address in Magnolia, Arkansas. The trial court found that both parties agreed to accept and make rent payments in this manner and that since December, 1978 all rent has been paid in this way.

The trial court found there was a custom of payment established between the parties, which custom was sufficient to modify the lease contract and make defendant responsible for timely payment of the rent by mail. The trial court found judicial control should not be exercised to disallow dissolution of the lease because there are no extraordinary circumstances presented here. The court, therefore, found a breach of the lease contract by defendant that entitled plaintiff to dissolution of the lease and eviction of defendant.

The issues on appeal are (1) should the court have exercised judicial control and found the lease could not be dissolved based upon defendant’s untimely payment of the February 23 rent installment? (2) was a custom of mailing payment to plaintiff at her home proved? and (3) should plaintiff have been required to place defendant in default?

Because we reverse the judgment of eviction on the grounds of judicial control, we do not reach the issues of place of payment or notice of default.

LSA-C.C. art. 2712 provides as follows:
The lessee may be expelled from the property if he fails to pay the rent when it becomes due.

LSA-C.C. art. 2729 also provides as follows:

The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution.

Even though the language of these articles would seem to mandate cancellation of a lease upon any failure to comply with the lease cancellation of leases is not favored in Louisiana law. Tullier v. Tanson Enterprises, Inc., 359 So.2d 654 (La.App. 1st Cir. 1978); Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir. 1967).

A lease will be dissolved only when it has been shown that the lessor is undoubtedly entitled to such a cancellation. Arbo v. Jankowski, 39 So.2d 458 (La.App.Orl.1949).

It has been held by our supreme court that although a lessor may ordinarily dissolve a lease for failure of the lessee to pay rentals timely, this right is subject to judicial control according to the circumstances. Brewer v. Forest Gravel Co., 172 La. 828, 135 So. 372 (1931).

In Brewer, supra, the lessor sought cancellation of the lease because the lessee had withheld part of the rent on a gravel lease to pay severance tax. The lessor contended the severance taxes were owed solely by defendant-lessee. The court found the tax was owed by the lessee but refused to cancel the lease because of non-payment of the portion of the rent withheld by the lessee to pay the tax. The supreme court found that the lessor did not arbitrarily refuse to pay the rent but made an error in good faith by refusing to pay more than he believed was due from him. Under such circumstances the lease should not be cancelled.

A later leading case on dissolution of leases is Edwards v. Standard Oil Co. of La., 175 La. 720, 144 So. 430 (1932). The rent in this case became due on July 15, 1931. The lessee had mailed a check to its local agent for delivery to the plaintiff-lessor on July 10, 1931, but the check did not reach plaintiff until July 21, 1931, six days after the due date “owing to some oversight or perhaps some fault in mail delivery”. The lessor refused to accept the check and returned it to the lessee. Among the reasons given for refusing cancellation was the theory of judicial control of cancellation of leases. The supreme court cited Brewer, supra, and several other cases for the proposition that the right to dissolve a lease is subject to judicial control according to the circumstances and reversed the lower court’s judgment cancelling the lease for failure to timely pay the rent.

In Baham v. Faust, 333 So.2d 261 (La. App. 1st Cir. 1976), the rent was due on February 28, 1975. The rent was not received by the lessor’s attorney until March 8, 1975 and was refused at that time. The First Circuit quoted LSA-C.C. Art. 2710 and 2712 but noted that dissolution of a lease is subject to judicial control according to the circumstances. The court discovered there was no place of payment noted in the lease and no custom of payment at a particular location. The lessor was therefore required to collect the rent at defendant’s dwelling, according to LSA-C.C. art. 2157. There was evidence of the lessee’s willingness to pay, and the court concluded the lessor cannot create a cause of action by not collecting the rent. Judicial control was therefore exercised to prevent cancellation of the lease for non-payment of rent.

In Belvin v. Sikes, 2 So.2d 65 (La.App.2d Cir. 1941), the defendants-lessors reconvened against the plaintiff-lessee asking for a dissolution of the lease because of nonpayment of rent. Plaintiff owed rent twice yearly — on March 1 and on September 1. On February 28,1939, plaintiff paid defendants the rent that was to discharge the rent up to September 1, 1939. However, the receipt erroneously read “in full payment of lease up to Oct. 1, 1939.” On October 2, 1939 plaintiff tendered the amount which would have paid the rent until March 1, 1940. This tender was refused, and defendant told plaintiff the lease was terminated due to non-payment of rent and plaintiff was expected to vacate. The Second Circuit found the October 2 tender prevented the lease from lapsing and continued the life of the lease. The court found that plaintiff relied in good faith upon the receipt stating the rent was paid up until October 1,1939. The court also invoked the rule that the right to dissolve a lease is subject to judicial control according to the circumstances.

In Tullier, supra, the lessee failed to pay the rent due December 1, 1975 and January 1,1976. Two notices of default, as required by the lease contract, were mailed to the lessee. On March 1, 1976 the lessee wired the lessor a sum sufficient to pay the 1975 property taxes, attorney fees, and rentals due through April, 1976. The lessor received the funds on March 3, 1976 but refused to accept them. The opinion is not clear as to the receipt of the default notices, required by the lease, by the tenant who was an assignee of an assignee of the original lessee. However, the opinion states the payment made following the default notices was untimely due to no fault of the tenant because of a malfunction of the transmittal device of the bank which forwarded the funds and because of Mardi Gras, a bank holiday. The lessor then sued for dissolution of the lease due to non-payment of rent. The First Circuit found that the lessee had made a good faith effort to cure its default by submitting the rentals and paying the taxes. Because of the lack of favor with which abrogation of leases is looked upon by the law, and due to the judicial control exercised by the courts over the cancellation of leases, the court refused to cancel the lease.

The Third Circuit reversed a lease cancellation in Housing Authority of the City of Lake Charles v. Minor, 355 So.2d 271 (La. App.3d Cir. 1977). On May 9, 1977 the lessee’s wife had timely paid the rent with a third-party check from the lessee’s employer. May 9 was the last day on which the May rent could have been timely paid. The check was returned for “not sufficient funds” on May 13, 1977, and on the same day a written notice to vacate for non-payment of rent was delivered to the lessee’s wife. The lessee’s wife paid the rent the following Monday. The lessor deposited the check into an escrow account pending the eviction proceedings. The Third Circuit noted that on the basis of equity courts are vested with discretion to decline to grant a lessor cancellation of a lease although the right appears otherwise available to him. The circumstances here were such as to require a reversal of the cancellation of the lease. See Farmers Gas Company v. La-Haye, 195 So.2d 329 (La.App.3d Cir. 1967).

Defendant here erroneously believed the rent had been paid by his wife. When he discovered his error, he immediately attempted to cure the default by mailing plaintiff a check for the rent. The end of the ten day grace period was March 5,1980. Five days later, on March 10, 1980, defendant became aware of the error in non-payment and mailed plaintiff a check for the rent. Defendant did not receive notice of plaintiff’s amended petition requesting cancellation for non-payment of rent until March 13, 1980. Plaintiff had amended the petition on March 6,1980, the day after the ten day grace period had ended. Defendant had not received plaintiff’s eviction letter dated March 10, 1980 at the time he mailed the rent check.

Defendant has an on-going restaurant business. Apparently it is a fairly successful operation since the rent payment is $650 per month. Defendant had been in the restaurant for two years and there is no indication in the record that he had ever failed before to timely pay his rent. Defendant wants to continue his business. He tried in good faith to correct his error by tendering the rent before notice of a suit was served.

This case appears to be a proper one for the application of the doctrine of judicial control of cancellation of leases. Although plaintiff appears to be entitled to a rescission of the lease due to untimely payment of rent, we find that equity requires us to deny the lessor cancellation of the lease. Plaintiff did not demand from defendant the past due rent and give him an opportunity to pay it before taking action to terminate the lease and evict defendant. The short length of time involved in the nonpayment and the good faith efforts of defendant to correct his error convince us that this lease should not be cancelled, and we so hold.

The judgment of eviction is REVERSED at appellee's cost.

      . LSA-C.C. art. 2710 — “The lessee is bound:
      1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.
      2. To pay the rent at the terms agreed on.”

      . LSA-C.C. art. 2157 — “The payment must be made in the place specified in the agreement.
      If the place be not thus specified, the payment, in case of a certain and determinate substance, must be made in the place where was, at the time of the agreement, the thing which is the object of it.
      These two cases excepted, the payment must be made at the dwelling of the debtor.”


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Jimmie B. McATEER, Plaintiff-Appellant, v. James T. McATEER, Defendant-Appellee.
    No. 14386.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for plaintiff-appellant.

      Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appel-lee.
    Before PRICE, HALL, and MARVIN, JJ.
   PRICE, Judge.

This proceeding concerns the ownership of certain real estate acquired in equal proportions by James T. McAteer and his business partner, Margie Rose, during the marriage of James McAteer and Jimmie Mc-Ateer. The community formerly existing between the McAteers was dissolved on September 22, 1978, at which time record title to the real estate was vested in the name of Mr. McAteer and Mrs. Rose. This suit to partition the community assets owned by the McAteers was filed on behalf of Mrs. McAteer, who alleges that an undivided one-half interest in this real estate is community property. Subsequent to the filing of this suit, Mr. McAteer filed of record an instrument dated April 3, 1974, which purports to have transferred all the assets, including land and building, owned by M & M Tile Sales, a partnership between Mc-Ateer and Rose, to M & M Tile Sales, Inc., a corporation in which McAteer and Rose are the sole shareholders.

The issue thus presented to the trial court was whether an undivided one-half interest in the land and improvements in question is owned personally by McAteer, in which case Mrs. McAteer would have an undivided one-fourth interest in the property, or is owned by the corporation, in which case Mrs. Mc-Ateer’s rights would be relegated to her interest in stock of the corporation.

The trial court found that it was the intent of the parties to have transferred this property to the corporation by the instrument executed on April 3, 1974. Judgment was rendered recognizing that title was in the corporation, and that the instrument be reformed to more adequately describe the real property transferred.

Plaintiff has appealed this judgment contending the trial court erred: (1) in finding that the 1974 document was a completed sale when it was only a promise to sell; (2) in failing to hold that the intervening rights of appellant precluded reformation of the document; and (3) in failing to hold that appellant was the owner of an undivided one-fourth interest in the real estate and entitled to partition by licitation.

It was established at trial that on May 24, 1968, Mr. McAteer and Mrs. Rose acquired the real estate as vendees “d/b/a M & M Tile Sales.” In April of 1974 these two parties formed a corporation and executed the document dated April 3, 1974, declaring their intent to convey to this corporation all the assets owned by the partnership in exchange for the shares of stock.

Attached to this document was an extract of the minutes of the first meeting of the Board of Directors and Stockholders of M & M Tile Sales, Inc., accepting the transfer and a balance sheet showing all assets of M & M Tile Sales located at 3400 Mansfield Road. This attachment specifically listed “land-building site” and “building and improvements.” Also attached was a balance sheet showing the liabilities of M & M Tile Sales and a depreciation schedule which again made reference to the land and building.

Appellant contends the April 1974 agreement was merely a promise to sell and not a completed sale which legally vested title to the real estate in the corporation. She relies on certain language in the instrument by which the parties agreed to sign “all of the necessary deeds, title transfers, documents, etc. to complete transfer of title to all of the property or assets listed on instrument attached.” She also contends the written agreement in question cannot be construed as a sale because it fails to meet the three requirements of La.C.C. Art. 2439 for a valid contract of sale: the thing sold, the price, and the consent. Appellant contends the first two essentials are lacking in this instrument — there is no legal description contained in the written agreement to identify the “thing,” nor is there a certain or ascertainable price stated in the instrument.

Lastly, appellant contends the trial court erred in admitting extrinsic or parol evidence to show the intent of the parties to the notarial act in question.

These arguments advanced by appellant might have merit were she a third party whose rights were being adversely affected. Appellant is not a third party to the 1974 agreement. She was married to and living with McAteer in 1974, and the property in question belonged to the community in existence at that time. McAteer was acting with full authority as agent and head and master of the community at the time he executed the agreement.

In the absence of fraud on the part of her husband, appellant would be privy to the transaction and bound by it. There is not even the slightest indication that the transaction was made in fraud or derogation of appellant’s community property rights. The record shows it was a normal business transaction done at an unsuspi-cious time several years prior to the separation between the McAteers. It is immaterial that the instrument was inadvertently not recorded until after this action was filed as the public records doctrine is of no concern under the circumstances presented here.

There has been no error shown on the part of the trial court in allowing parol or extrinsic evidence to show the intent of the parties as to whether the real estate in question was a partnership asset being transferred to the newly formed corporation and as to whether McAteer and his partner, Mrs. Rose, intended to convey their real estate to the corporation at the time of execution of the 1974 agreement. The record shows this evidence was admitted without objection. In any event it is an elementary rule that as between the parties to an agreement parol evidence is admissible to explain the true intent of the parties where there is an ambiguity between the various provisions of a written agreement. As the subject instrument contained language of present conveyance, as well as contradictory wording relative to the necessity for execution of additional future transfers to carry out the agreement, parol evidence was properly admitted to establish that the parties intended for all assets including the real estate to have been immediately transferred by the execution of the 1974 agreement.

We also find the agreement made sufficient reference to the location of the real estate by municipal number to easily ascertain it was included in the assets intended to be transferred.

It is a settled rule of law in this state that if a portion of the description of property in a deed is either erroneous or misleading, it is nevertheless susceptible of conveyance if the property intended to be conveyed by the parties can be ascertained with certainty by the aid of such extrinsic evidence as is admissible under the rules of evidence, (citations omitted) White v. Phillips Petroleum Company, 232 So.2d 83 (La.App. 3d Cir. 1970), writ refused 233 So.2d 560 (1970).

There is little question that the parties did intend to consummate the transfer of all assets including the partnership property where the business was located to the corporation by the execution of the subject written agreement. The accountant who prepared and notarized the instrument testified that such was the intent. This intent is further corroborated by the fact that the corporation immediately thereafter commenced payment of all taxes, insurance, and mortgage payments on the real estate.

We further find the recitation in the instrument that all assets of the partnership were transferred in consideration of the issuance of the 1,000 shares of capital stock, valued at $25,000, in equal portions to McAteer and Mrs. Rose, to comply with the codal requirement that a sale be for an ascertainable price.

The equity of the partners in the land and improvements could be determined from the attached valuation of assets, statement of liabilities of the partnership, and the depreciation schedule.

We therefore find that the evidence as a whole establishes a sale of the real property at issue was effected by the execution of the written agreement on April 3, 1974.

We also find the equitable remedy of reformation of the instrument is applicable in this case to have the instrument describe the real estate by the accepted legal description to conform to the true intent of the parties.

. .. Reformation of instruments is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. It is a personal action, even when applied to real estate, in which the burden is on the one seeking reformation to establish the mutual error or mistake by clear and convincing proof, parol evidence being admissible for this purpose. Evidence of mutual error must be strong and convincing. Merritt v. Hays, 237 La. 557, 111 So.2d 771 (1959); Pipes v. Pipes, 343 So.2d 329 (La.App. 2d Cir. 1977).

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

      . “grant, bargain, sell, convey, and deliver unto M & M Tile Sales, Inc.”


author: FRED W. JONES, Jr., Judge.

text:
    RICHLAND PARISH BUS DRIVERS ASSOCIATION et al., Plaintiff-Appellants, v. RICHLAND PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 14391.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Paul Henry Kidd, A Professional Corporation, Monroe, for plaintiffs-appellants.
    Glynn D. Roberts, Asst. Dist. Atty., Ray-ville, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

On May 2, 1980 the Richland Parish Bus Drivers Association and several individual members filed suit against the Richland Parish School Board, its superintendent and president, seeking a judgment declaring unconstitutional the Board’s method of allocating proceeds from a sales tax levied pursuant to a 1968 election and permanently enjoining the Board from distributing the sales tax proceeds on the alleged discriminatory basis. Pending a trial on the merits, plaintiffs secured a temporary restraining order prohibiting distribution of the sales tax receipts and also applied for a preliminary injunction. Defendants moved to dissolve the temporary restraining order.

After a hearing on the rule for a preliminary injunction and on the motion to dissolve the temporary restraining order, the district court rendered judgment in favor of plaintiffs ordering the issuance of a preliminary injunction prohibiting the Board from distributing 6% of the sales tax proceeds pending the resolution of the case on the merits. Plaintiffs appealed this judgment, contending that the trial court erred and abused its discretion by arbitrarily restricting its issuance of the preliminary injunction to 6% of the disputed funds. Therefore, the sole issue presented for consideration on this appeal is whether a trial judge has authority to grant only partial relief to an applicant for a preliminary injunction.

A preliminary injunction is a procedural device interlocutory in nature designed to preserve the existing status pending a trial of the issues on the merits of the case. La.C.Civ.P. Art. 3601.

To obtain a preliminary injunction the moving party must show that the injury, loss or damage he will suffer may be irreparable if the injunction does not issue. He must also make a prima facie showing that he will prevail on the merits of the case. See GMAC v. Daniels, 377 So.2d 346 (La. 1979); Daigre Engineers, Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2d Cir. 1980); Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1st Cir. 1970).

As pointed out in Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979), page 494:

“... [T]he principal demand is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or tentatively decide merit-issues.” (Emphasis added)

In Schwegmann Bros. Giant Super Markets v. La. Milk Commission, 290 So.2d 312 (La.1974), the Commission sought to enjoin Schwegmann from giving or offering to give refunds in connection with purchases of milk and dairy products. The trial court granted a limited preliminary injunction, which the Court of Appeal broadened. Addressing the question of the propriety of the trial judge’s granting only partial relief in response to the request for a preliminary injunction, the Louisiana Supreme Court held:

“In so doing, he was within his procedural power. He did not have to either grant or deny the full injunction sought. Instead, he could (as he did) give only that partial relief to which the applicant or the opponent was entitled under the showing made.”

The 1% sales tax in question was levied to supplement other revenues available to the Richland Parish School Board for the payment of employee salaries. Neither the call for the election in 1968 nor the ordinance levying the tax specified the formula to be used by the Board in the allotment of those funds. In the exercise of its discretion the Board established a policy of paying 88% of the sales tax receipts to supplement the salaries of certificated employees, including teachers, and 12% of those receipts to supplement the salaries of noncertificated employees, including school bus drivers.

At the hearing in this case the trial judge considered evidence that in Franklin Parish school bus drivers along with other noricer-tificated personnel received salary supplements consisting of 20% of the 1% sales tax; that East Carroll Parish school bus drivers received two-thirds of the sales tax proceeds distributed to school teachers; and that in West Carroll Parish school bus operators received the same base pay but were allotted somewhat larger supplements from their sales tax proceeds than those in Rich-land Parish.

In his written reasons for judgment the trial judge stated:

“Considering the amounts paid bus drivers in other parishes, and we must assume that these figures were offered to show the difference between reasonable and unreasonable distribution, a small percentage of the funds on hand would be adequate to pay plaintiff’s drivers for the difference they should receive if they are successful on the merits. We have concluded that 94% of the tax funds under restraint should be released and the temporary restraining order dissolved as to that portion, and that the preliminary injunction should issue as to 6% of those funds, to be held subject to the further orders of this court. It is the judgment of this court that this 6% would be a sufficient amount to cover any additional benefits to plaintiffs, if they are successful on the merits.”

There is no question but that under the ruling of Schwegmann, the trial judge has the authority to grant only partial relief to these applicants for a preliminary injunction. It was obviously his conclusion, based upon an appropriate tentative consideration of merit-issues, that on the basis of plaintiffs’ prima facie showing it was only necessary to mandate retention by the school board of 6% of the sales tax proceeds to adequately provide for any additional benefits to which plaintiffs might be entitled if ultimately successful.

The trial judge has broad discretion in his decisions relating to the granting or denial of preliminary injunctions. Melancon v. Assumption Parish Police Jury, supra.

Since we conclude that his discretion was not abused in this case, we affirm the judgment of the district court, at appellants’ cost.


text:
    SEVEN WATER HOLES CORPORATION, Plaintiff-Appellant, v. William SPIRES and Robert Roberts, Jr., as Executor of the Mary Marshall Roberts Estate, Defendants-Appellees.
    No. 14392.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    En Banc. Rehearing Denied Feb. 19, 1981.

      Travis Holley, Bastrop, for plaintiff-appellant.
    Madison, Files, Garrett, Brandon & Ha-maker by James P. Madison, Bastrop, Blanchard, Walker, O’Quin & Roberts by Robert Roberts, Jr., Shreveport, for defendants-appellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Plaintiff filed this petitory action to be recognized as the owner of an 80 acre tract to which it had record title. Defendants were the Mary M. Roberts Estate, alleged adverse claimant to plaintiff's ownership, and the Estate’s tenant. In essence the defense was that the defendant Estate had acquired ownership through 30 years acquisitive prescription of an eight acre portion of the property to which plaintiff had record title. This was the primary issue presented at the trial.

Trial was had on September 21, 1979. Finding that the plea of 30 years acquisitive prescription was supported by the evidence, the trial judge rendered judgment recognizing Susan Roberts Chadwick (who had been placed in possession as legatee of her mother, Mary M. Roberts) as the owner of the disputed property. Plaintiff appeals this judgment, contending that the trial judge erred in concluding that the defendant Estate had proven every element required to sustain the plea of 30 years acquisitive prescription.

We affirm.

The law applicable to litigation of this nature is clear. The ownership of im-movables may be acquired by 30 years possession despite the fact that the possessor has no record title nor is in good faith. However, that possession must be continuous and uninterrupted, public and unequivocal and “under the title of owner.” When commenced corporeally, that possession, if not interrupted, may be preserved by external signs which manifest the possessor’s intent to preserve his possession. Civil possession may be retained as long as any vestiges of works erected by the possessor remain on the property. Acquisition of property by this method extends only to that actually possessed. See La.Civil Code Articles 3499-3503.

It was pointed out in William T. Burton Industries, Inc. v. Cook, 322 So.2d 880 (La. App. 3rd Cir. 1975) that:

“The particular acts which constitute sufficient possession for acquisition by acquisitive prescription of thirty years vary with the circumstances of the individual case (citation omitted). The nature of the land involved is the chief consideration as to what acts of possession are sufficient.”

The record shows that in 1902 Susie Lar-kin (later married to William C. Marshall) purchased the East lh of NW Vi, Sec. 12, Twp. 20 North, Range 7 East in Morehouse Parish. This 80 acre tract, known as the Larkin place, was situated immediately to the west of the Lynch place, another 80 acre tract, described as the West lh of NE Vi, Sec. 12, Twp. 20 North, Range 7 East. Plaintiff acquired record title to the latter tract in 1978.

Although the ideal boundary between these two tracts was never judicially established, it seems to have been assumed by the respective property owners that the tracts were separated by the Bayou Bonne Idee, which runs in a north-south direction. However, at some undetermined time it was discovered that about 8 acres of the Lynch 80 acre tract was actually situated on the west side of the bayou, which in this area was between 150 and 250 feet in width. Since no bridge was ever constructed to afford access from one side of the bayou to the other, this 8 acre portion was in effect cut off from the main part of the Lynch place.

It was conceded that neither plaintiff nor its predecessors in title had exercised any acts of possession over the disputed 8 acres. On the other hand, although neither Susie Larkin Marshall nor her daughter, Mary Marshall Roberts, ever lived on the Larkin place, a number of witnesses testified that they had a succession of tenants and lessees who possessed the place, together with the disputed 8 acres, on their behalf.

Robert Roberts, Jr., 76 years old at the time of the trial, was married to Mary Marshall Roberts in 1929. The first tenant he remembered was Jim Parson, who farmed the property under a sharecropper arrangement for many years. After Parson became incapacitated because of illness, the place was leased in 1958 to J. B. Rawlinson who farmed it for about ten years. An individual named Clack was the tenant in 1969 and 1970. He was followed by Don Sims, who leased the property from 1970 until 1976. Spires, a defendant in this suit, was the tenant from 1977 up to the trial date. Each of these lessees used the property for farming and cattle raising, consistent with the nature of the land. After the death of Susie Larkin Marshall, the tenants paid their rent to her daughter, Mary Marshall Roberts.

Earl Cox, 64, had lived near the Larkin and Lynch places since 1940. He farmed part of the Lynch place for about five years beginning in 1947 or 1948. As far back as he could remember, fences had existed along the edges of the bayou on both sides. Cox recalled that Parson had farmed the Larkin place from around 1926 or 1927 until nearly 1960, growing cotton and corn. This witness stated that he first saw a fence on the east side of the Larkin place, running along the west edge of Bayou Bonne Idee, in 1925 or 1926, and that vestiges of this fence were still visible some two weeks prior to the trial when he visited the area.

Louis Cox, 57, was reared about two miles from the Larkin place. At Parson’s request Cox went on the property in 1947 or 1948 to measure for cotton preplanting. According to Cox, Parson had lived on the place for as long as he could remember. In 1951 or 1952 Cox was hunting along the bayou and observed the fence running along the east side of the Larkin place and the west side of the bayou, enclosing the disputed 8 acres with the rest of the Larkin place. He also went on the property about two weeks prior to the trial and noticed that signs of the old fence were still evident. He testified that this had been an “open range” area and it was necessary for the farmers to construct fences to keep livestock out of their crops.

Jimmy McGowen, 45, owned the Lynch place from 1961 until 1973. He had been familiar with the Larkin place for nearly 30 years, and knew when Parson was sharecropping on that property. It was also his testimony that both sides of the bayou were fenced. McGowen never sought to exercise possession of the disputed 8 acres.

Don Sims, 41, went on the Larkin Place in 1960 to cut beans for his friend Rawlin-son, the tenant at that time. Sims stated that Parson farmed the property as far back as he could remember. He was succeeded by Rawlinson who, according to Sims, farmed it each year he was the lessee. Sims testified that he leased the Larkin place for 9 or 10 years, beginning in the late 1960’s, using it primarily for cattle raising. His testimony concerning an old fence along the western edge of the bayou corroborated that of the other witnesses.

William Spires testified that at the time of the trial he was entering the third year of his lease of the Larkin place, using it for cattle raising. He considered the bayou, for all practical purposes, to be the east boundary of the property since it was open to that waterway. He also had observed remains of the old fence along the west edge of the bayou.

In essence, each of these tenants acted as though the disputed 8 acre tract was a part of the Larkin place.

Plaintiff offered no evidence to refute the testimony of these witnesses relating to possession by tenants of the Larkin place and the disputed 8 acres. It argues, however, that one cannot acquire ownership of property by adverse possession through another person when the party claiming ownership has never initially taken corporeal possession of the property.

Pertinent to a consideration of this question are the following articles of the Louisiana Civil Code:

“Art. 3426. Possession is the detention or enjoyment of a thing, which we hold or exercise by ourselves, or by another who keeps or exercises it in our name.”
“Art. 3433. One may possess a thing not only by one’s self, but also by other persons.
“Thus the proprietor of a house or other tenement possesses by his tenant, or by his farmer; the minor, by his tutor; and, in general, every proprietor, by the persons who hold the thing in his name.”
“Art. 3438. One may acquire possession of a thing, not only by himself, but also through others who received it for him and in his name. But in this case it is necessary that the person receiving the possession should have had intention of receiving for the other.”

In Glass v. Stewart, 133 So. 787 (La.App. 2d Cir. 1931) the plaintiff in a possessory action contended that he had exercised possession of certain disputed property through various tenants, the first of whom rented the property in 1916. Agreeing with this contention, the court stated:

“Article 3433 of the Civil Code specially provides that the proprietor of a house or other tenement possesses it by his tenant. Plaintiff has definitely proved his actual possession began in 1916 or 1917, and continued thereafter down to the moment of the disturbance. It is true he did not have a tenant actually occupying the premises at all times. But this was not necessary under the provisions of the Civil Code and the well-settled jurisprudence thereunder.”

Since the cited codal articles clearly provide that a lessee may possess property on behalf of his lessor, we know of no reason why the initial corporeal possession cannot be exercised by the tenant on behalf of the alleged owner to whom he pays rent. Since the record reveals that Parson was generally considered to be a sharecropper on the Larkin place through an arrangement with Susie Larkin Marshall, this is adequate evidence to establish that Parson intended to possess for his landlord, contrary to appellant’s contention. Therefore, we find in this case that, starting at least with Jim Parson in 1926, Susie Larkin Marshall began the corporeal possession of the disputed 8 acres.

Appellant next argues, that there was no evidence that the disputed property was continuously farmed for 30 consecutive years by the tenants of Mrs. Marshall and Mrs. Roberts.

As we have pointed out, once possession for acquisitive prescription purposes is begun corporeally, it may be preserved by external and public signs evidencing to the public the possessor’s intent to maintain his possession. See La.Civil Code Art. 3501. Even if appellant is correct in its assertion that the described tenants did not farm the disputed property for 30 consecutive years, we have already concluded that corporeal possession was begun for Mrs. Marshall by Parson. Thereafter the external signs of that continued possession, such as maintenance of the fence along the east boundary of the property, served to preserve that possession for more than 30 years. As noted in Glass v. Stewart, supra, it was not even necessary that a tenant be on the property every year. However, in this case there is ample evidence in the record that the disputed property was possessed by tenants of Mrs. Marshall and Mrs. Roberts from about 1926 until the date of the trial, both for farming purposes and for cattle raising. Maintenance of the fence along the west edge of the bayou, vestiges of which were still in evidence until two weeks prior to the trial, was an external sign giving notice to the public that this property was being claimed by the tenants for their landlord.

Addressing an issue involving possession in Norton v. Addie, 337 So.2d 432 (La.1976), the court made the following pertinent comment:

“The exercise of exclusive grazing privileges over the land, accompanied by the maintenance of the enclosures constituted corporeal possession over the entire tract.
“Willis LaRue, who leased the land from plaintiff for pasturage, possessed on behalf of his lessor, La.C.C. arts. 3438 and 3445. Witnesses for defendant asserted that the fence had been neglected over the years and was in a state of disrepair. But this testimony, if true, would not derogate from the proof of plaintiff’s possession. The witnesses concede that the fence, or remains of it, was clearly visible along the old fence line. This was sufficient to give defendant notice of the limits of plaintiff’s continuing possession.”

Further, as held in Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975):

“Our Civil Code provisions make it clear that one who has acquired corporeal possession continues in possession until he transfers it or abandons it, or until another expels him from it, or until he permits the estate to be usurped and held for a year without doing any act of possession or without interfering with the usurper’s possession.”

In this case the only evidence relating to anyone corporeally possessing the disputed 8 acres was that describing the activities of the tenants of Mrs. Marshall and her daughter. There is absolutely no evidence that, after acquiring corporeal possession through Parson, Mrs. Marshall ever transferred or abandoned that possession, or was expelled by a usurper.

We conclude that the tenants of Mrs. Marshall and Mrs. Roberts exercised possession of the disputed property on behalf of their lessors for more than 30 years. This possession was continuous and uninterrupted during that time, was public and unequivocal, and was “under the title of owner” in the sense that the disputed property was used as though it belonged to the lessors.

For these reasons we affirm the judgment of the trial court, at appellant’s cost.

      . Appellant argues that, by hunting on the disputed property while he owned the Lynch place, McGowen was exercising possession of the 8 acre tract. However, a reading of his testimony indicates that this obviously was not McGowen’s intent, in view of his statement that he hunted on the entire Larkin place together with “everything else down there.”

      . Since the type of possession required for a possessory action is identical to that required to commence the running of acquisitive prescription, cases involving actions of that nature are relevant to the issue of possession in this case. See Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).


author: MARVIN, Judge.

text:
    JACKSON SQUARE TOWNE HOUSE HOMES ASSOCIATION, INC., Plaintiff-Appellant, v. Malcolm Eugene MIMS and Eunice Blackburn Mims, Defendants-Appellees.
    No. 14393.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Freyer & Fox by Gary L. Fox, Shreveport, for plaintiff-appellant.
    Nelson, Hammons & Johnson by Brian D. Smith, Shreveport, for defendants-appel-lees.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   MARVIN, Judge.

The plaintiff association appeals from the rejection of its demands to enforce restrictive covenants and to compel the owners of a town house to remove a portable 8 X 10' metal storage building which they had placed on their lot in the town house development.

The pertinent covenants are as follows:

“Article IX
“Section 1. Land Use and Building Type. No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one single-family dwelling not to exceed two stories in height above the ground level of highest elevation on which any portion of the main building is erected, and a private garage and such outbuildings as are customarily appurtenant to dwellings, every building except a greenhouse to correspond in style and architecture to the dwelling to which it is appurtenant. No out-building shall exceed the dwelling to which it is appurtenant in height, number of stories, or size. A garage or carport to house at least two automobiles must be provided on each lot.”
“Section 2. Plans and Specifications. No building shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the Architectural Control Committee as to natural harmony of exterior design with the existing structure and as to location with respect to topography and finished grade elevations. No fence or wall more than two (2) feet in height shall be erected, placed or altered nearer to any street than the minimum setback line, except two (2) subdivision markets shall be constructed of a minimum of seventy five (75) percent masonry veneer, except for windows, doors, louvers, covered porches and other decorative features that may be approved after plans and specifications are submitted and except when not practical because of design of building and said design has received the prior approval of Architectural Control Committee. No fence or wall shall be constructed higher than six (6) feet and no fence or wall shall be constructed without the prior approval of the Architectural Control Committee as to type, materials, Etc.
“The Committee’s Approval or disapproval as required in these covenants shall be in writing. In the event the committee or its designated representative, fails to approve or disapprove within thirty (30) days after plans and specifications have been submitted to it, or in any event, if not suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.”
“Section 8. Building Location. No building shall be located on any lot nearer to the front lot line other than that shown on the recorded plat of said subdivision.”
“Section 11. Temporary Structures. No structure of a temporary character, trailer, basement, tent, shack, garage, bam, or other out-building shall be used on any lot at any time as a residence either temporarily or permanently.”
“Article X
“Section 1. Enforcement. The Association, or any owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.”
“Section 2. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no wise affect any other provisions which shall remain in full force and effect.”

The record reveals that this town house development contains 103 residential lots, on seven of which the owner had placed a storage building similar to defendants’ storage building which is complained of. Defendants made a written request of the association’s architectural control committee for permission to place the building on their lot. Notwithstanding that permission was refused, defendants placed the building on their lot and this suit followed. It was shown that some, and perhaps most of the other seven storage buildings had been placed on town house lots with the verbal approval of, or without previous objection from, the architectural control committee of the association. This committee’s members have changed because they are elected from time to time.

The defendant lot owners received this response from the association to their request for permission to place the building on their lot:

“Because of the unsightly appearance of the existing storage buildings and because of our responsibility to all homeowners, the Architectural Control Committee has unanimously voted to disapprove all applications for additional storage buildings. The committee believes that these buildings detract from the appearance of our homes and thus decrease their value.
“At a joint meeting held on January 3, 1980, all members of the Board of Directors present agreed with the Architectural Control Committee that no exception to this decision should be made.”

The extent to which these restrictions affect either or both out-buildings which may be permitted on the property and uses which may be made of permitted structures must be determined by the entirety of the restrictions. Salerno v. Delucca, 211 La. 659, 30 So.2d 678 (1947); Smith v. DeVincent, 322 So.2d 257 (La.App.2d Cir. 1975).

These restrictions clearly contemplate that “... out-buildings [including greenhouses] as are customarily appurtenant to dwellings ...” may be placed on the town house lots, provided the out-building is in harmony with the exterior design of an existing structure on the lot. A shack, barn, or other out-building may not be used as a residence. When this language is construed with the entire restrictions, the term out-buildings customarily appurtenant to dwellings, such as sheds and barns, clearly means storage sheds.

These restrictions do not authorize the plaintiff association to adopt a rule or policy forbidding all storage sheds or buildings, but only those which have been determined on a case to case basis not to comply with the restrictions. The exterior of a permitted storage shed must be in harmony with the exterior design of the existing structure on the lot. The restrictions are not unenforceable, but the authority of the association through its architectural control committee to enforce the restrictions must be exercised in accordance with the terms of the restrictions and with law. Where the restriction is couched in general terms, the reasonableness of the association’s enforcement of the restriction in a particular case may be weighed by the courts. 4626 Corp. v. Merriam, 329 So.2d 885, 889 (La. App. 1st Cir. 1976). See and compare Lake Forest, Inc. v. Drury, 352 So.2d 305 (La. App. 4th Cir. 1977).

The association’s attempt to ban defendants’ storage building by banning all storage buildings is clearly an unreasonable exercise of authority afforded to the association by the restrictions. See 4626 Corp., supra.

At appellant’s cost, judgment is AFFIRMED.

      . In Smith, supra, the word shack in a restriction was said to be synonymous with the word shed. 322 So.2d at 262.


text:
    KEL-KAN INVESTMENT CORPORATION et al., Plaintiffs-Appellants, v. VILLAGE OF GREENWOOD et al., Defendants-Appellees.
    No. 14394.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Kennedy, Goodman & Donovan by Frank S. Kennedy and Rellis P. Godfrey, Shreveport, for plaintiffs-appellants.
    James E. Bookter, Bossier City, for defendants-appellees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

After the governing body of the Village of Greenwood refused to deannex their properties, plaintiffs filed suit on March 23, 1976 to have this municipal action decreed arbitrary and unreasonable and for judgment deannexing their properties from the municipal limits.

Defendants filed an exception of prescription under La.R.S. 33:174 , alleging that plaintiffs were actually attacking the reasonableness of an annexation ordinance passed in 1972 and that the 30 day period allowed for their action had elapsed.

Plaintiffs appeal a judgment sustaining the exception of prescription. We reverse and remand.

Although no reasons were given by the trial judge for his ruling, we assume that he agreed with the assertion that plaintiffs were attacking the 1972 annexation ordinance. We disagree. Although plaintiffs’ properties were annexed under the 1972 ordinance and they allege that this ordinance has proven to be unnecessary and unreasonable, construed in its entirety their suit is directed, not at the 1972 ordinance, but at the asserted arbitrariness of the municipal governing body in refusing to dean-nex their properties. Since the 30 day prescriptive period provided for by La.R.S. 33:174 is inapplicable, we hold that the plea of prescription was erroneously sustained.

However, examination of the record raises another question — whether plaintiffs’ petition states a cause of action. Although this objection was not urged by the defendants in either the trial court or on appeal, we are authorized by La.C.C.P. Art. 927 to take notice of this possible failure on our own motion. In the interest of judicial economy we now address that issue.

Prior to 1972 the land area comprising the Village of Greenwood consisted of about 350 acres. In 1972 the Village annexed some 2250 acres, including approximately 57 acres owned, in the aggregate, by plaintiffs. No one contested the reasonableness of the 1972 ordinance within the 30 day period provided for by law.

La.R.S. 33:171 provides:
“The limits and boundaries of incorporated municipalities shall remain as established on July 31, 1946, but may be enlarged or contracted by ordinance of the governing body as hereinafter provided, the City of New Orleans excepted.” (Emphasis added)

Subsequent provisions detail the procedures to be followed as a prerequisite to the adoption of a valid ordinance enlarging the boundaries of a municipality. Then, Section 176 stipulates:

“To contract the boundaries of a municipality the same procedure shall be followed as outlined above and the same notice must be published and the same right of appeal to the courts is granted as provided for in the case of the enlargement of the boundaries.”

The power to extend or contract municipal corporate limits is a legislative power. Incident to its power to create or abolish municipalities, a state legislature may enact statutes setting forth procedures for enlarging or contracting municipal limits. Kansas City So. Ry. Co. v. City of Shreveport, 354 So.2d 1362 (La.1978).

The decision whether to enact an ordinance enlarging or contracting municipal corporate limits is within the discretion of the municipal governing body. Barbe v. City of Lake Charles, 216 La. 871, 45 So.2d 62 (1949).

However, it is also a well-established rule of law that legislative and administrative decisions of municipal bodies are subject to judicial review to determine whether those actions are arbitrary, unreasonable or capricious. Southern Pac. Transp. Co. v. La. Public Service Com., 290 So.2d 816 (La. 1974); Henry v. City of Monroe, 349 So.2d 1006 (La.App. 2d Cir. 1977); Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2d Cir. 1968).

The following pertinent comment is found in 56 Am.Jur.2d, Municipal Corporations, Sec. 84, p. 139:

“Whether a proposed contraction of a municipality is a wise step, and whether it supports the best, long-term interests of the municipality, are not judicial questions, but issues for the governing authorities of that municipality. But while the contraction of the boundaries of a municipality is essentially a legislative function, it is subject to judicial review on the question whether there is any reasonable basis for the contraction, and whether the evidence reflects public convenience and necessity.”

In this case we are dealing, not with an attack upon the reasonableness of an ordinance contracting municipal limits, but with the alleged arbitrariness of the municipal governing body in refusing to contract those limits. Although we find no Louisiana appellate court decision dealing with this precise question, it has been considered by the Supreme Court of New Jersey in West Point Island Civic Assoc. v. Township Committee, 54 N.J. 339, 255 A.2d 237 (1969). There, suit was filed to compel a local governing body to consent to the deannexation of plaintiffs’ properties. The court noted, first, that the powers of a New Jersey municipality were wholly derivative from state statute. It was pointed out, next, that under the relevant statute municipalities were vested with the discretion to withhold their consent to deannexation. However, the court concluded that this discretionary activity was subject to judicial scrutiny to prevent arbitrary and unreasonable action for the following reasons:

“First, there can be no usurpation by the courts of a legislative function, as defendant claims, when every municipal power is the product of a statutory grant. It is the traditional duty of the judicial branch of government, in interpreting statutes, to ascertain the scope of delegated discretion... Second, where the grant of discretion is general in its terms, as here, judicial review is especially warranted in order to assure that legally irrelevant or forbidden considerations have not determined the decision.”

The holding of West Point Island was followed in the later New Jersey Supreme Court case of Ryan v. Mayor & Council of Borough of Demarest, 64 N.J. 593, 319 A.2d 442 (1974).

We believe that the rationale of West Point Island applies in this case also. The Louisiana legislature has by statutory authority delegated to municipalities discretionary power to enlarge or contract their corporate limits. Judicial review of the manner in which this discretion is exercised is required when it is alleged by a property owner seeking deannexation that the governing body has acted arbitrarily or capriciously. The purpose of that review is to determine whether the governing body’s decision was the product of legally irrelevant or forbidden considerations.

Plaintiffs in this case have alleged that the refusal of the governing body of Greenwood to deannex their properties was arbitrary and unreasonable. Consequently, they have stated a cause of action and must have their “day in court” with the opportunity to discharge their burden of proving these allegations.

The judgment of the trial court sustaining defendants’ plea of prescription is reversed and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to appel-lees.

      . “Any interested citizen of the municipality or of the territory proposed to be annexed thereto may, within the thirty day period before the ordinance becomes effective, file suit in the district court having jurisdiction over the municipality, to contest the proposed extension of the corporate limits and the question shall be whether the proposed extension is reasonable. If the extension of boundaries is adjudged reasonable the ordinance shall go into effect ten days after the judgment is rendered and signed unless a suspensive appeal therefrom has been taken within the time and manner provided by law. If the proposed extension is adjudged unreasonable the ordinance shall be vacated and the proposed extension shall be denied, and no ordinances proposing practically the same extension shall be introduced for one year thereafter. A similar right of appeal from the judgment of the district court annulling the ordinance shall be granted the municipality or any interested citizen as hereinabove provided.”


text:
    Annie Christine DODD, a/k/a Annie C. Solomon, Plaintiff-Appellant, v. Leo SOLOMON, Defendant-Appellee.
    No. 14395.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Travis M. Holley, Bastrop, for plaintiff-appellant.
    Woodrow Wilson, Bastrop, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The demands of a concubine, seeking to be declared owner of one-half of certain movable assets acquired by her paramour during their 16-year relationship, were dismissed on an exception of no cause of action. She appeals.

The concubine alleged that the relationship constituted a partnership and that she contributed from her property and earnings at least one half of the funds used by the paramour to acquire the assets which included more than $70,000 in cash deposits. For the purpose of considering the exception, these allegations must be taken as true. Whether or not she can meet the burden of proof can be determined only upon the trial on the merits. See Keller v. Keller, 220 So.2d 745, 750 (La.App. 1st Cir. 1969) and other cases cited in Lorio, “Concubinage and its Alternatives”, 26 Loy.L.R. 1 (1980).

REVERSED AND REMANDED at the cost of defendant-exceptor.


text:
    Frank S. MOORE, Plaintiff-Appellee, v. Rozelle Marting MOORE, Defendant-Appellant. Rozelle Marting MOORE, Plaintiff-Appellant, v. Frank Sumontiss MOORE, Defendant-Appellee.
    (Consolidated)
    Nos. 14396, 14397.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      R. Clyde Lawton, Jr., Vivian, for plaintiff-defendant-appellant, Rozelle Marting Moore.
    Edward 0. Kernaghan, Shreveport, for plaintiff-defendant-appellee, Frank S. Moore.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

An ex-wife appeals a judgment denying her alimony after divorce because of the trial judge’s conclusion that the parties were mutually at fault. We reverse.

On August 14, 1978 Moore sued his wife for a legal separation on the ground of abandonment. The next day Moore’s wife sued him for a legal separation on the ground of cruel treatment. The cases were consolidated for trial purposes.

After trial of the separation actions, judgment was rendered on September 7, 1979 decreeing a legal separation between the parties on the ground that they had lived separate and apart for more than one year. The judgment further provided that “the issue of fault is not decided at this time.”

On September 17, 1979 Moore filed suit against his wife for a divorce on the ground that they had lived separate and apart for more than one year, under the provisions of La.R.S. 9:301. Defendant wife reconvened, asking for an award of permanent alimony. Judgment was rendered on December 11, 1979, granting Moore a divorce from his wife. The parties stipulated that the question of fault which governed disposition of the alimony demand would be submitted to the trial judge for further consideration based upon his examination of the evidence presented at the trial of the legal separation actions. Pursuant to this agreement, on March 5, 1980 judgment was rendered simply decreeing “that the Plaintiff and Defendant were mutually at fault.” It is this judgment from which the wife appeals.

La. Civil Code Article 160 provides in pertinent part:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income.”

The meaning of fault within the context of this codal article was discussed by the Louisiana Supreme Court in Pearce v. Pearce, 348 So.2d 75 (La.1977) as follows:

“We have held that, under this statute respecting an award of alimony to a wife without ‘fault’, the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord (citations omitted). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation.”

The spouse claiming alimony after divorce has the burden of proving freedom from fault. Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir. 1978); Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1968); Sachse v. Sachse, 150 So.2d 772 (La. App. 1st Cir. 1963).

Examination of the record in this case reveals that the parties had been married for some 50 years when they instituted their legal separation proceedings. In the summer of 1978 Mrs. Moore became upset upon learning that her husband was assisting a younger woman (a family friend) make her car payments. Because this “other” woman did her banking at the same institution in Oil City where the Moores had a savings account, Mrs. Moore withdrew the funds from that account, amounting to about $20,000, and deposited them in a savings account in a Vivian bank in the names of both spouses.

Moore’s discovery of his wife’s unilateral action in transferring the family savings led to a heated confrontation with her in the early morning hours of August 10, 1978. Moore admitted that he “talked to her pretty ugly” and told her “everybody would know me and her had trouble.”

Mrs. Moore’s version of this incident was that Moore threatened to kill her unless she returned the savings to the Oil City bank at her earliest convenience. Fearing for her life, she fled in such haste that she neglected to collect her dentures and glasses.

J. R. Elmore, Oil City law enforcement officer, stated that he was contacted by Mrs. Moore on the morning after she left home and accompanied her to a store where she gave her husband a bank passbook—evidencing the return of the savings to the Oil City bank. Elmore said he heard Moore tell his wife “to get her stuff out of the house.” After Mrs. Moore left, Moore told Elmore that he was “going out there and beat the hell out of her.”

We recognize that the question of a spouse’s freedom from fault under Article 160 is a factual one, and that the trial court’s findings on this issue will not be disturbed on appeal unless found to be manifestly erroneous. See Pearce v. Pearce, supra. On the other hand, we agree with Judge Beer’s statement in his concurring opinion in Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir. 1979), that:

“... alimony should not be irrebutt-ably preempted on a premise of such a disjointed, nebulous concept as ‘mutual fault’. What is, in most cases, nothing more or less than mutual disillusionment should not summarily deprive either party of their justiciable right to seek alimony.”

In this case we have searched the record in vain for evidence that Mrs. Moore was guilty of serious misconduct which was an independent contributory cause of the separation. She had just cause to leave the matrimonial domicile after the violent reaction of her husband to her withdrawal of their savings. Moore told Elmore that he did not desire her return. Therefore, this did not constitute abandonment on Mrs. Moore’s part. Moving the savings account from one bank to another where she opened the new account in both her name and that of her husband certainly did not constitute “serious misconduct.”

For these reasons, we conclude that in finding Mrs. Moore had not proved that she was free of fault in the separation the trial judge was manifestly in error. Therefore, we reverse and render judgment that Rozelle Marting Moore was free of fault in the separation from Frank S. Moore, and remand for a hearing on the question of Mrs. Moore’s entitlement to alimony and, if so found, the amount which she should be awarded. Costs are assessed to the appel-lee.

      . According to the transcript of the proceedings, at the conclusion of this trial the trial judge announced that he found mutual fault, but deemed it appropriate to grant the legal separation on the ground of living separate and apart for more than one year.


author: JASPER E. JONES, Judge.

text:
    Larry Alan ALLBRITTON, Plaintiff-Appellant, v. LaVeta Cloud ALLBRITTON, Defendant-Appellee.
    No. 14400.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for plaintiff-appellant.
    Hal V. Lyons, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JASPER, E. JONES, JJ.
   JASPER E. JONES, Judge.

Larry Alan Allbritton appeals a judgment increasing his child support obligation to his former wife, LaVeta Cloud Allbrit-ton, from $300 per month to $600 per month for support of his three minor children who are in the permanent custody of his former wife. We affirm.

Appellant contends the needs of the children as set forth in his former wife’s affidavit of income and needs which was introduced into evidence are excessive, and that the amount of the child support award exceeds his ability to pay. He further contends that the child support award will require him to pay in excess of 66%% of the needs of the children which is contrary to the mutual obligation of support owed these children by their respective parents. This contention is apparently based upon appellant’s erroneous notion that the child support obligation should be paid equally by each parent.

The mother is a Director of Nursing in a local nursing home and has a net income of $1124. Her list of expenses required to provide for herself and the three children their monthly living requirements reflects a total need of $1899. The mother inadvertently omitted from the list a monthly payment for hospitalization insurance for the children in the amount of $58, and a monthly payment on bunk beds for the children in the amount of $24, and when these omissions are added to the total living expenses, the correct monthly total living expenses for the mother and the three children is the sum of $1981. When the mother’s net income is deducted from the living expenses of her family group, there remains a net need not satisfied by the mother’s income in the amount of $857.

Appellant complains the rent expense reflected on said list in the amount of $375 is excessive. He, however, admitted at trial that the mother’s former apartment location which cost $250 was unsatisfactory and resulted in the children being required to live in a neighborhood where they associated with other children which their father considered undesirable. We note from appellant’s list of expenses that he reflects a housing cost for himself alone of $328. The father in effect recommended the move, and though he denies he specifically approve the $375 location, we do not find the mother was extravagant in selecting a new residence which cost $125 more per month than the former undesirable location.

Appellant also complains of an item on the mother’s expense list for oil and gas in the amount of $75, which is in excess of the $100 car allowance she receives from her employer, and which is not included on the list of expenses. The mother is required to go back and forth to her place of employment, deliver her children to the day care center, and perform all other necessary errands required in maintaining a family of four. Considering the present cost of automobile operation and maintenance, the additional item for oil and gas in the amount of $75 contained in the monthly expense list is totally reasonable.

Appellant also objects to a $25 item in the expense list for the children’s allowance, a $20 item in the expense list for the children’s theater and club attendance, a $29 item in the expense list for vacations, and $177 in the expense list for repayment of his former wife’s loan obligation. Appellant contends the children do not receive the $25 allowance, that they belong to no clubs, that they do not take vacations, and that he should not be responsible for payment of his wife’s loan obligation which he contends were incurred purely due to her unnecessary extravagance.

Without expressing approval of the validity of appellants’ contentions, we note that the total of these objections is the sum of $251 and that when they are deducted from the $857 reflected on the list of needs which is not covered by the mother’s own income, she still needs the sum of $606 to meet her necessary expenses. Considering all these circumstances the need of the mother for $600 from appellant to provide for the living expenses of the children of this former marriage was clearly established by the record.

Appellant’s affidavit of income and expenses reflects that he has a total net income of $1355 and total expenses of $1342, which accepted at face value would tend to establish he has $13 income available to contribute to the support of his three minor children.

We noted in the decision of Kellogg v. Kellogg, 375 So.2d 200 (La.App.2d Cir. 1979), that the father’s obligation to provide support for his children is a high priority obligation and that he is required to reduce his living expenses in order to have funds to pay his required child support.

A casual review of appellant’s expense list reflects $130 per month for recreation, $30 per month for vacations, and $100 for miscellaneous expenses, all of which items he can easily eliminate in order to have funds for the support of his children. We will not undertake to further review his items of expenses for the purpose of indicating where appellant must make the necessary reductions to meet his child support obligation. It suffices to say that he must make necessary reductions in his living expenses in order to have available from his $1355 net monthly income the sum of $600 to pay his child support.

Appellant’s argument that there is error in the child support determination because it results in his paying 66%% of the support of his children is totally without merit. While the law places a mutual obligation upon parents for the support of the children, the amount that each parent is required to contribute depends upon the circumstances of those who are obligated to pay it. See Prudhomme v. Prudhomme, 381 So.2d 906 (La.App.3d Cir. 1980), and the authorities therein cited.

The trial court has much discretion in fixing child support awards and the award will not be disturbed unless there is a clear abuse of discretion. Kellogg, supra. A review of the respective incomes and expenses of the mother and father of these children does not establish that there has been any abuse of discretion by the trial judge in his determination that appellant herein should contribute $600 per month for the support of his three minor children.

AFFIRMED at appellant’s cost.


text:
    Charles E. GLEASON et al., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee. David W. BREEDLOVE, et al., Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.
    Nos. 14401, 14402.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Johnston, Thornton, Dawson & Hunter by James R. Dawson, Shreveport, for plaintiffs-appellants Charles E. Gleason & David W. Breedlove.
    James O. McCrery, III, Asst. City Atty., Shreveport, for defendant-appellee City of Shreveport.
    W. Glen Mangham, Asst. Dist. Atty., Shreveport, for third party defendant-ap-pellee Caddo Parish Police Jury.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

In these consolidated cases the plaintiff homeowners appeal the judgment of the district court which rejected their demand for damages allegedly caused by the negligent maintenance of drainage facilities by defendants, the city of Shreveport and the Caddo Parish Police Jury. We find no error in the judgment and for the following reasons affirm.

The plaintiffs complain of flood damage allegedly sustained by them when two drainage ditches overflowed following a heavy rain on the night of May 6 and into the early morning hours of May 7, 1978.

Plaintiffs are homeowners in the South-downs Estate subdivision in Shreveport. The ditches in question are earth channels as opposed to concrete-lined. The larger of the two ditches is approximately 55 feet in width in the vicinity of plaintiffs’ homes. This ditch, referred to as the Summer Grove ditch, originates approximately three miles northwest of the plaintiffs’ homes and flows in a southeasterly direction to a point three or four miles southeast of South-downs Estates, where the ditch empties into the Wallace Lake-Boggy Bayou area. The smaller ditch, known as the Lambert ditch, is approximately 40 feet in width. This ditch originates about two and one-half miles northeast of plaintiffs’ homes and flows in a southwesterly direction and ends by emptying into the Summer Grove ditch. The confluence of these two ditches is directly adjacent to the plaintiffs’ properties.

In support of their contention that the defendants were negligent in the maintenance of these ditches, plaintiffs introduced the testimony of three civil engineers as well as a number of the property owners for the purpose of establishing a lack of due care on the part of defendants. This evidence shows there was a substantial growth of vegetation and some debris accumulated in the ditches which allegedly impaired the carrying capacity of the ditches to such an extent that they were unable to handle the runoff caused by the rainfall on the night of the flooding.

At the close of the plaintiffs’ presentation, the defendants moved pursuant to La. C.C.P. Art. 1810(B) to have plaintiffs’ case dismissed on the grounds that the plaintiffs had failed to establish a lack of due care on the part of defendants or that any failure to maintain the ditches actually caused the harm encountered by the plaintiffs. This motion was sustained by the trial court based upon its conclusion that the plaintiffs had failed to prove a causal connection between the alleged lack of maintenance and the actual damage sustained by plaintiffs. It is this judgment dismissing plaintiffs’ case that is appealed.

On this appeal plaintiffs contend that their evidence was sufficient to prove that the lack of maintenance of the ditches and the resultant heavy vegetation was a cause of the damages sustained by them. Plaintiffs contend that the trial court erred as a matter of law as to the amount of evidence required by them to sustain their burden of proof. Plaintiffs contend they are only required to show that the alleged lack of maintenance was a contributing cause of their damage and not necessarily the sole cause. Plaintiffs further contend that the trial court erred in its evaluation of the evidence by failing to ascribe to the expert testimony the weight which it should have been accorded.

Unlike a motion for a directed verdict in a jury trial, La.C.C.P. Art. 1810(B) requires a judge to evaluate all the evidence and render a decision based upon a preponderance of the evidence without any special inferences in favor of the opponent to the motion. Sevin v. Shape Spa for Health & Beauty, 384 So.2d 1011 (La.App. 4th Cir. 1980). Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not. Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971).

In order to impose liability on the defendants in this case it is incumbent on plaintiffs to show that the complained of conduct was a cause in fact of the harm allegedly sustained by them. See Wall v. American Employers Insurance Company, 377 So.2d 369 (La.App. 2d Cir. 1979), affirmed 386 So.2d 79 (La.1980). The complained of conduct is a cause in fact of plaintiffs’ harm if it is a substantial factor in bringing about the harm. Wall, supra; Le Jeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978).

The primary issue for resolution therefore is factual, i. e., did the plaintiffs prove by a preponderance of the evidence that the alleged lack of maintenance of the drainage ditches by defendants was a substantial factor in bringing about the flooding of plaintiffs’ homes on the night of May 6-7, 1978.

Plaintiffs primarily relied upon the expert testimony of three civil engineers for the purpose of proving that the excessive vegetation in the ditches caused the flooding in question.

Expert evidence is weighed by the trial judge the same as any other evidence, and the trial judge is not bound by such testimony. Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979), writ denied 380 So.2d 102 (La.1980). The weight expert testimony is entitled to receive is determined by the professional qualifications and experience of the witness and the circumstances and materials on which the opinion is based. Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976), and cases cited therein.

John Bowman, a civil engineer, was tendered as an expert in the field of design of drainage facilities for subdivisions. Bowman was of the opinion that the ditches would not have overflowed on the night in question if they had been properly maintained. The trial judge concluded that his opinion in reference to the issue of causation was not entitled to any weight because it was based upon the application of a formula which involved an assumed fact of “ordinary rain.” The term “ordinary rain” was not defined, and therefore the validity of the formula utilized by Bowman, as well as the resulting opinion, was of no probative value. An expert’s opinion given without stating the facts upon which it is based is of no value to the court and is entitled to no weight. State Through Department of Highways v. Gras, 131 So.2d 628 (La.App. 2d Cir. 1961).

Another civil engineer testifying as to the effect of the vegetation in the drainage ditches was Charles Coyle. Coyle was of the opinion that the Lambert ditch (the 40-foot ditch which ran into the larger Summer Grove ditch) would have been incapable of passing a ten-year storm in 1978. This opinion was admittedly based on the condition of the ditch as perceived by Coyle from pictures taken in 1978 and descriptions of the condition of the ditch at that time. The trial judge afforded little weight to this testimony because Coyle’s experience in flood analysis was very limited. The weight to be accorded his testimony was further diminished because of Coyle’s failure to consider the effect of “backwater flooding” caused by the downstream blockage of the channel.

The balance of the expert testimony was elicited from E. J. French, the Shreveport city engineer in charge of streets and drainage. He was aware of the heavy vegetation present in the drainage ditches and stated that a certain amount of growth in these earth channels was desirable to retard erosion. French considered the erosion problem to be the main concern of the adjoining property owners. Although conceding that maintenance of the ditches was important, French did not have an opinion as to the degree of maintenance which would be desirable since this would depend on many variables. French testified that there was a backwater problem which affected the carrying capacity of these ditches.

Plaintiffs did not offer any evidence to show the actual amount of rainfall which fell for a designated period on this date or what the expected frequency of occurrence would be. Without such information it is difficult to see how plaintiffs’ engineering experts could calculate with any degree of certainty the extent to which the overgrown vegetation or debris in the ditches contributed to the harm encountered by plaintiffs.

Plaintiffs’ evidence simply shows that the two drainage ditches in question were substantially overgrown with vegetation; that a heavy rainfall occurred on the night of May 6 and the early morning of May 7; and that flood waters entered their homes.

Admittedly plaintiffs’ expert testimony does show it is an accepted engineering principle that vegetation growing on the surface of an unpaved drainage facility will impede the rate of flow of water being discharged by the facility. However, this testimony of itself is insufficient to prove that the lack of maintenance complained of was a substantial factor in causing the flooding of plaintiffs’ homes on this date.

We therefore find no manifest error in the finding of the trial court, and for the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed to appellants.

      . La.C.C.P. Art. 1810(B)
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.