author: BOUTALL, Judge.

text:
    Mrs. Anthony D’ANGELO, as administratrix of the Succession of Anthony D’Angelo, a/k/a Anthony S. D’Angelo v. NEW ORLEANS PUBLIC SERVICE, INC.
    Nos. 11517—11528.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Writ Denied Dec. 14, 1981.

      John A. Gordon, Sp. Counsel, Vincent T. LoCoco, Gen. Counsel, Gerard M. Victor, Associate Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for defendant-third party defendant-appellee.
    C. B. Ogden, II, New Orleans, for New Orleans Public Service, Inc., defendant-appellant.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Gerald E. Meunier, New Orleans, for plaintiffs-appellants and for plaintiffs-ap-pellees.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon, John C. Tollefson, New Orleans, for Mrs. Anthony D’Angelo, et al., plaintiffs-appellees.
    Before BOUTALL, GARRISON and KLIEBERT, JJ.
   BOUTALL, Judge.

This case concerns a gas explosion in a residential neighborhood in uptown New Orleans which resulted in personal injuries and property damages.

On or about February 7, 1978, a pipeline, owned by New Orleans Public Service, Inc. (hereinafter referred to as NOPSI), running underneath the 2100 block of Burdette St. in uptown New Orleans began leaking gas which spread to several residences located on that street. Shortly thereafter, this gas ignited and these residences were engulfed by flames, thereby inflicting serious property damages and minor personal injuries upon those occupying the residences at that time. This incident spawned numerous suits filed by property owners and those individuals who suffered personal injuries, all of which were consolidated for trial. Of the twelve different suits that were filed, eight were settled prior to trial. The four remaining claims were as follows: 1.) William Claycomb vs. NOPSI and the Sewerage & Water Board of New Orleans (hereinafter referred to as S & WB) for alleged personal injuries and property damages sustained while occupying the premises located at 2121 Burdette St.; 2.) Mabel Wilson vs. NOPSI for personal injuries sustained while occupying her home on Burdette St.; 3.) Adrian and Bonnie Berry, individually and on behalf of their minor child Shannon Berry vs. NOPSI and the Sewerage and Water Board for property damages and personal injuries sustained by Shannon Berry who was occupying the premises located at 2119 Burdette St. at the time of the explosion, and for a loss of wages sustained by Bonnie Berry; 4.) Doris Clinton vs. NOPSI and the Sewerage & Water Board for personal injuries and property damages sustained while occupying the premises located at 2119 Bur-dette St. Both NOPSI and the S & WB denied any liability for the alleged personal injuries and property damages allegedly sustained by the above plaintiffs.

In the first two suits above NOPSI filed a third party demand against the S & WB seeking indemnity or contribution for any award of damages for which it may be held liable unto the named plaintiffs. During trial of this matter the lower court granted a Directed Verdict in favor of the Sewerage & Water Board thereby absolving it from liability of any kind. Regarding the defendant NOPSI, the jury returned a verdict finding it liable unto the various plaintiffs as follows: 1.) Claycomb was awarded $60,-000; 2.) Wilson was awarded $515; 3.) Adrian and Bonnie Berry individually were awarded $5,000; 4.) Adrian and Bonnie Berry on behalf of their minor daughter Shannon Berry were awarded $5,000; 5.) Clinton was awarded $87,820. Both the Berrys and NOPSI have appealed devolutively.

On appeal the issues before us are as follows: 1.) Whether the trial court committed error in granting a directed verdict in favor of the Sewerage & Water Board absolving it from any liability unto NOPSI; 2.) whether the trial court properly assessed the award of damages made to Adrian and Bonnie Berry individually and on behalf of their minor child Shannon for their alleged property damages and personal injuries; 3.) whether the trial court properly assessed the costs against the defendant NOPSI in connection with both the claims settled pri- or to trial and those claims for which trial was held.

DIRECTED VERDICT

The trial of this case was bifurcated, that is, the suits of the various plaintiffs against the defendant NOPSI were being tried before a jury, while the claims of the original plaintiffs and the third party claim of NOP-SI against the Sewerage and Water Board was being tried simultaneously before the judge.

It is NOPSI’s theory of the case that the liability of S & WB is based upon the following: Three feet below the pavement of the 2100 block of Burdette Street, NOPSI owned and maintained a 16 inch intermediate gas pipe line. It is conceded that this line ruptured, causing natural gas to spread under the street, sidewalk and front lawns in the area. The gas was ignited by an unknown source, causing explosions and fire resulting in the damages sued upon. Parallel to NOPSI’s line, at a distance of 4 feet, 9 inches on center and slightly lower is a 13 inch drainage pipe line owned and maintained by S & WB. It is contended that the bell and spigot joints in the drainage line leaked, causing the surrounding soil to be leached out and creating a void. This void caused some sideways movement of the gas line and the stress caused the gas line to crack. As a result the gas flowed through the void into the leaky drainage line and was thus spread throughout the area.

At the conclusion of the evidence offered by the original plaintiffs and by NOPSI, S & WB moved the judge for a directed verdict in accordance with Code of Civil Procedure Article 1810 B, which reads in pertinent part as follows:

“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.”

The trial granted the directed verdict and rendered judgment in favor of the Sewerage & Water Board on the basis that all plaintiffs and third party plaintiffs had failed to offer any evidence showing that the Sewerage & Water Board had notice of defects, either active or constructive. We have examined the record and the factual finding of the trial judge is correct, i. e., that there is not evidence of notice of any defects to the Sewerage & Water Board. However, the issue on appeal as to the correctness of the ruling is not one of fact in this regard, but rather one of law.

NOPSI reasons that its liability was based upon the doctrine of strict liability imposed upon an owner or custodian for damages caused by things in its custody, its pipe line, under the provisions of Louisiana Civil Code Article 2317 and the case of Loescher v. Parr, 324 So.2d 441 (La.1975). Correspondingly, it contends that this same doctrine of strict liability should apply to S & WB as the owner and custodian of its drainage line, allegedly the cause of the gas line break. The trial judge rendered his directed verdict based on the lack of notice of the defect given to the public body. Since the time of that decree, the Supreme Court of Louisiana has rendered a decision in the case of Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980) which eliminated the requirement of notice in cases applying the strict liability doctrine of Article 2317. Thus NOPSI urges that the trial judge erred.

We agree that Jones v. City of Baton Rouge has removed the requirement of notice to public bodies in eases in which the principles of Article 2317 apply. However, that court did not intend that notice of the defect be eliminated as a defense in every case. The court stated, 388 So.2d 740:

“***** Proof of notice of the defect is indeed required when a plaintiff contends that a public body was negligent, either by virtue of specific conduct of its employees which created the dangerous situation (which is itself construed as notice), or by virtue of its failure to correct a dangerous condition caused by others. But, as we have demonstrated, negligence is only one of the footings on which the codal structure of tort liability rests. Where delictual responsibility is based not on negligence but on legal fault, under article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not of the breach of a duty.”

A consideration of the cases of Jones v. City of Baton Rouge and Loescher v. Parr leads us into a somewhat paradoxical situation. NOPSI’s demands against S & WB for relief are couched in two fashions, one in the nature of indemnity because the damages were due solely to S & WB’s fault, and the other in the nature of contribution as a joint debtor or tort feasor. Because it is apparent in this case that NOPSI’s liability was assessed under Article 2317, NOPSI, as the custodian, can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person or by an irresistible force. Since the issue here is only between NOPSI and S & WB it follows that NOPSI’s claim of indemnity must necessarily be based upon the fault of a third person, i. e., S & WB. By definition a case under Article 2317 does not have the element of fault proven against a defendant owner and thus it would seem that a case of negligence under 2315 is presented, in which notice would still be required. Based upon that proposition, the trial judge’s directed verdict based upon lack of notice is correct in disposing of that aspect of the case.

Such a concept does not require the dismissal of all of NOPSI’s claims against S & WB. NOPSI asks for contribution from S & WB and we see no reason why joint liability could not be obtained in a case by injured plaintiffs against two owners in sol-ido under Article 2317, whose defective things caused the damages complained of. Under this proposition, the question of notice does not arise and instead of fault under Article 2315, there must be proof of the elements necessary to recovery under Article 2317. In Jones v. City of Baton Rouge, it is pointed out that no particular act or omission on the part of the defendant caused the injuries, but instead the injured party must prove three things: that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or a defect — that is, that it occasioned an unreasonable risk of injury to another — and that his injury was caused by the defect.

With these principles in mind, we call attention again to the procedural situation here, that this appeal arises out of the directed verdict and not out of the final submission of the case on the merits. Because the trial judge’s reasons for the directed verdict did not dispose of all of the issues between the parties, it may be that we should remand this matter to the District Court for completion of the case in order to grant the defendant S & WB an opportunity to present its evidence in defense. Nevertheless, we are constrained by our Supreme Court in the case of Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975) to decide the issues appropriate from the record before us in the interest of judicial economy and disposition of litigation. Additionally, C.C.P. Article 2164 provides that we shall render any judgment which is just, legal and proper upon the record on appeal. Accordingly, we have considered the record to determine whether the directed verdict might also be justified in disposing of all of the issues between NOPSI and S & WB. S & WB offered several reasons for the directed verdict, including lack of vice or defect and causation of injury by defect, none of which were mentioned by the trial judge in his reasons for judgment, but which were certainly before him for consideration. C.C.P. Article 1810. These issues have been raised before us on appeal.

Because the issue of the liability of S & WB was being tried before the judge and not before the jury, the standard for consideration of the evidence upon which to base a decision as to what facts are proven is the standard of preponderance of evidence. Sevin v. Shape Spa for Health and Beauty, Inc., 384 So.2d 1011 (La.App.4th Cir. 1980); Gleason v. City of Shreveport, 393 So.2d 827 (La.App.2d Cir. 1981). In order to impose liability on S & WB in this case, it is necessary that NOPSI show by a preponderance of the evidence that there was a defect in S & WB’s drainage line, and that that defect caused the injuries complained of.

As previously indicated, this matter concerns a natural gas explosion caused by gas leaking from one of NOPSI’s pipe lines beneath Burdette Street in uptown New Orleans. The various structures that were damaged as a result of the fire were on the downtown or odd numbered side of the 2100 block of Burdette. Beneath Burdette Street are a number of other service lines, but the pipe lines mainly involved here are three in number. The first of these is NOPSI’s 16 inch intermediate gas cast iron pipe line which is located about three feet beneath the middle of Burdette St. Approximately 1 and V2 feet away on the downtown side is a 6 inch utilization pressure gas pipeline owned by NOPSI. The third pipeline is the Sewerage & Water Board drainage line which is located 4 feet 9 inches away on the downtown side and slightly lower. It is established beyond doubt that the natural gas escaped from a crack in the 16 inch intermediate pipe line, spread throughout the area, and was ignited by an unknown source, resulting in explosion and fire. Our inquiry here is concerned only with the proof that a defect in the S & WB drainage pipeline caused the NOPSI gas line to crack and whether the defect caused the gas to spread and be ignited.

After the initial explosion and resulting fire, the NOPSI gas pipeline was closed off, and excavation in the street began to determine the source of the gas. It was discovered that there was a crack in the gas line at a corroded area, and excavation continued to make room for repair. This resulted in two findings, one that the gas pipeline was completely broken, and two that there was a void or hole existing between the gas pipeline and S & WB’s drainage line, the exact location and extent thereof being in dispute.

The existence of this void is one of the focal issues in this case, because NOPSI contends that the void caused its pipeline to shift and thus break, and that the resulting gas flow entered this void and then S & WB’s drainage line spreading throughout the area. It should be noted of course that this void is beneath the city street and of course is not under the exclusive control of the S & WB. Both NOPSI and S & WB have authority to install and maintain pipelines beneath the city street, although by ordinance the city has granted S & WB priority rights for its pipelines. It should also be noted that the uncontradicted testimony is that there are numerous voids beneath the streets of New Orleans, being of various sizes and caused from various reasons, but they are common things and their existence is well known to the parties here involved. Indeed it is expected that beneath most of the paved streets in New Orleans because of soil subsidence and other problems, there are generally numerous empty spaces between the pavement of the street and the foundation upon which the street is built.

We first address the causal relationship of the void to the rupture of NOPSI’s gas line. Although the void is in an area not under the exclusive control of S & WB, nevertheless, the testimony is unrefuted that there was a leakage in the drainage line and this caused a leaching or removal of the soil creating the void. (This being on directed verdict, S & WB has not yet presented its defense.) Because of the stresses and pressure that occur in a gas pipeline, it must be rigidly held in place to prevent its rupture. Although NOPSI has shown that there is a possibility that the existence of this void caused a rupture of its pipeline in this area, we cannot say that it is more probable than not that the rupture was caused by the void, nor conclude that NOPSI has borne the burden of showing that fact by a preponderance of the evidence. We reach this conclusion for a number of reasons.

First, although there is a dispute as to the location and size of the void, the testimony is unanimous that there was solid clay surrounding the broken pipeline, and there was no disturbance of the area which would indicate that the pipeline had moved towards the void. Secondly, although there is a dispute between the experts offered by plaintiffs to show causation, it is unanimous that there was a large area of corrosion or graphitization of the pipeline in the area where it ruptured. Graphitization is described as a sort of corrosion or change in the basic composition of a cast iron pipeline such that the strength of the iron content is removed and the weaker graphite structure is left. It is quite significant that this area was located on the opposite side of the pipeline from the void. The evidence fairly shows that the initial break took place in this area and that the whole pipeline then ruptured. The normal way in which a pipeline would rupture when exposed to a void would be to first break on that side closest to the void which would obviously have the most stress. NOPSI would have us believe that this pipeline reacted in the opposite fashion. Considering the testimony of the experts in this regard, we must point out that the initial report of NOPSI’s expert was changed in several significant ways to accommodate NOPSI’s theory.

Finally, on this issue we refer to the condition of NOPSI’s pipeline itself. Such cast iron pipelines are no longer used but have been replaced in the industry by steel pipelines which are considerably stronger and not subject to graphitization. While the testimony is that a cast iron pipeline may last indefinitely, the pipeline had been installed fifty years previously and of course has been exposed to graphitization for a long period of time. NOPSI’s original explanation for the rupture of its line was that it was caused by thermal stress, manufacturing faults, or material failure of the pipe. The fact that other causes than the void may have triggered this rupture is quite obviously demonstrated by the fact that just four days previously, this same pipeline had ruptured in the 2300 block of Burdette Street, just two blocks away, and it is conceded that there was no void in that area to cause such a break.

Accordingly, based upon the facts discussed above, we conclude that NOPSI has not shown by a preponderance of the evidence that the void caused the break in question. Similarly, we conclude that NOP-SI has not shown by a preponderance of the evidence that the cause of the widespread distribution of the gas was the void and entry into the drainage line.

As to this issue of course it must be readily conceded that a drainage line by its nature is open to necessarily receive the drainage waters and is not designed to protect against the entry of gases to which it may be exposed. We cannot conclude that S & WB owes a duty to NOPSI or even to the residents of the area to construct a drainage line impervious to the entry of natural gas, and indeed no theory is advanced to us as to how such an effective drainage line may be constructed. NOPSI’s basic contention is that the gas from its ruptured pipeline went through the void and entered a crack in the drainage line and continued through the drainage line or along connecting voids spreading throughout the area. This theory is disposed of by the testimony of the witnesses to the fire who testified that there was fire throughout the entire area: Fire coming from cracks in the street, from along the sidewalk, from along the front yards, from the open drainage inlets, and even from the telephone line manholes. Considering the evidence concerning the voids beneath paved streets in New Orleans, their testimony shows precisely the type of spreading that would take place from a ruptured gas line beneath a paved street. Those witnesses who saw the fire in its initial stages testified as to their observation in certain areas that the fire seemed to run along NOPSI’s gas line and explode by the gas meter and then return out to the street where fire began in the drainage inlet. Similarly, the evidence shows that the drainage lines were not so constructed as to bring the gas into a house where it may be exposed to sparks causing it to explode, nor were the lines laid to conform to the pattern of spread of the fire as testified to by the witnesses.

Accordingly, we conclude that the trial judge was correct in entering a directed verdict.

II

The next issue for our consideration concerns the validity of the award of damages made to Adrian and Bonnie Berry on behalf of their minor daughter Shannon and the award made to the Berrys individually. For the sake of clarity and an ease of understanding each award will be considered individually.

On the night of February 7, 1978, Shannon Berry, age 3, was visiting with her grandmother Mrs. Doris Clinton at the latter’s residence located at 2119 Burdette St. In the early evening hours Mrs. Clinton heard a hissing noise outside of her home. She opened the curtains in her living room to determine the source of the noise whereupon she discovered flames of fire in the street. Shortly thereafter an explosion occurred causing damage to her living room area. Alarmed, Mrs. Clinton then grabbed Shannon and carried her to the back of the house. After her pleas for help were unanswered, Mrs. Clinton tossed Shannon out of a window and onto an outdoor shed some 3 to 4 feet away. Mrs. Clinton followed Shannon and also jumped onto the shed. Shortly thereafter, both of them were rescued by firemen and taken to a neighbor’s home nearby. Shannon was examined later that night by Dr. Edward Abernathy who indicated that Shannon had suffered some smoke inhalation as well as numerous bruises on her right hip and knee and both hands. Dr. Abernathy further indicated that Shannon was scared and clung tightly to her mother. He recommended that she be treated by a pediatrician.

Shannon’s mother, Mrs. Berry testified that Shannon’s personality changed in that she was no longer friendly and outgoing. Shannon became more anxious about things and often clung to her mother. Mrs. Berry further testified that Shannon often became frightened by things which resembled the fire such as the flames from a barbecue pit or a stove. The seriousness of her condition as described by her mother is discounted to some degree by the fact that Mrs. Berry ignored Dr. Abernathy’s recommendation that Shannon visit a pediatrician until some 7 months after the accident. Moreover, Shannon was subsequently treated by Dr. Haslett, a child psychologist in September of 1978-November of 1978, but this doctor was not called to testify so as to verify Shannon’s condition.

Some 2 months prior to trial, in February 1979 or 1 year after the accident, Shannon was sent to Dr. Kleibert Jones, a child psychologist, for examination. Dr. Jones described her condition as an adjustment reaction to childhood which in laymen’s terms means that Shannon had experienced a major life stress in the form of the explosion and fire subsequent to which she developed symptoms relating thereto. He further indicated that Shannon’s day to day functions were not incapacitating, but they were nevertheless affected. Dr. Jones gave the following prognosis: The condition experienced by Shannon was temporary; this condition would probably not develop into a traumatic neurosis, but nevertheless this was a possibility; and Shannon’s condition should gradually improve.

The Berrys contend that the award of $5,000 made by the jury for the personal injuries sustained by their minor daughter Shannon was low and should be increased. Based on the evidence presented at trial we conclude that the award was not manifestly erroneous and did not constitute an abuse of discretion. Reek v. Stevens, 373 So.2d 498 (La.1979).

One final point for consideration here concerns the contention by the Berrys that one of the instructions given to the jury by the trial court was improper. The particular instruction in question states:

“When a plaintiff is unable to provide a sufficient explanation as to why a treating physician’s testimony has not been introduced into evidence, it is presumed that the testimony of such treating physician would have been adverse to plaintiff’s cause. It is up to the jury to determine if the evidence from other physicians is sufficient or if the explanation is sufficient to overcome the presumption.”

In considering this contention we note that the jurisprudence is replete with cases supporting this kind of instruction. See Brown v. Employer’s Commercial Union Insurance Co., 316 So.2d 194 (La.App.4th Cir. 1975) writ denied 320 So.2d 204 (La.); Malbroux v. Guice, 322 So.2d 390 (La.App.3rd Cir. 1975); Vidrine v. Sentry Indemnity Co., 341 So.2d 558 (La.App.3rd Cir. 1976). The Berrys cite Hemphill v. Strain, 371 So.2d 1179 (La.App.lst Cir. 1979) for the rule that the presumption of unfavorable testimony will not apply where the witness is available to both sides. However, this ease is easily distinguishable from those previously cited in that they relate to a special witness in the form of a treating physician such as Dr. Haslett in the case before us, and Hemphill concerns witnesses in general. Accordingly, we conclude that the trial court’s instruction to the jury was- proper.

The second award for our consideration here was that of $5,000 made to Adrian and Bonnie Berry individually. The Berrys allege that they have suffered damages of $788 in property damages from the fire, $681 in medical expenses for Shannon and $12,326.60 in lost earnings resulting from Mrs. Berry’s employment termination in order to care for Shannon, for a total of $13,795.58 in damages.

In reviewing the evidence before us we find that the first two items of damages, namely the claim for the property destroyed by fire and the medical expenses, were properly substantiated. However, this finding does not apply with respect to the claim for lost earnings. The record indicates that Mrs. Berry decided to terminate her employment with the U.S. Department of Energy in December of 1978, some 10 months after the accident. The reason given for her termination was that she wanted to spend more time with Shannon who was allegedly continuing to experience difficulties as a result of the fire. Mrs. Berry testified that her departure from her place of employment was purely voluntary and was not made at the recommendation of any of the physicians treating Shannon. Three months after Mrs. Berry terminated her position, or 2 months prior to trial in February 1979, Shannon visited Dr. Jones. At trial Dr. Jones testified that Mrs. Berry did the right thing in withdrawing from employment to care for Shannon. He further indicated that Mrs. Berry should refrain from seeking employment until January 1980, or some 5 months after Shannon started school.

Based on the foregoing the jury awarded only $5,000 damages, presumably $1469 for property damages and medical expenses and the balance for lost wages. We agree. Considering the evidence it is apparent that not all of the wage loss was a necessary result of the accident, and at the same time, Mrs. Berry was certainly caused some wage loss. The exact amount cannot be determined and the jury in its discretion arrived at a lesser figure than that claimed. We cannot substitute our opinion for that of the jury and we cannot say the jury abused its discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). Accordingly we affirm the award.

A final issue for our consideration concerns the costs assessed by the trial court against NOPSI in connection with those claims that have settled and with those for which a trial was conducted.

The settlement agreement entered into between NOPSI and the various claimants states in pertinent part:

By Mr. Ogden:
“ . . . The settlement agreement listed above will be increased by the costs incurred by the participants in this litigation.”
By Judge Garvey:
“What do you mean by costs?
By Mr. Ogden:
“Specifically, the defendant, New Orleans Public Service. I don’t know what the arrangements are with the Sewerage and Water Board. That all court costs, deposition costs and expenses of any kind incurred by the settlement. Plaintiffs will be paid by the New Orleans Public Service.”
By Mr. Irwin:
“And, we will get them together and submit them.”

Of the many costs involved in connection with the settlement, NOPSI contends that it should not be responsible for some of them, including the expert fee of Dr. Courtney Bush, the metallurgist and mechanical engineer, totalling $1,304.40 and the expert fee of Isaac Regenbogen, an appraiser, amounting to $2,152.08.

The Louisiana jurisprudence reflects the view that the amount of an award for an expert’s fee is generally within the discretion of the trial court which will not be set aside in the absence of an abuse of discretion. State, Through Dept. of Highways v. Bougere, 363 So.2d 228 (La.App.4th Cir. 1978); Prentice Oil & Gas Co. v. Caldwell, 355 So.2d 1327 (La.App.lst Cir. 1977), writ denied, 358 So.2d 640 (La.1978). Furthermore, when there is nothing in the record to either support or refute the expert’s fee awarded by the trial court, then there is no basis for a review. G. T. Blackshere v. Kemper Ins. Co., 352 So.2d 275 (La.App.2d Cir. 1977).

In reviewing the record there is no evidence before us which either serves to support or refute the expert witness fees set by the trial court on behalf of Regenbo-gen and Dr. Bush. This fact, coupled with the sweeping statement made by NOPSI that it would pay, “ . . . all court costs, deposition costs and expenses of any kind incurred by the settlement ...” leads us to conclude that the trial court’s assessment of expert fees was not an abuse of discretion.

In connection with the costs assessed by the trial court as to the claims for which a trial was conducted, NOPSI contends that the trial court abused its discretion in awarding expert witness fees to Mr. Isaac Regenbogen, the appraiser of the property damaged by the fire, and John Clinton, an inhalation therapist who examined Mrs. Clinton on the night of the accident. Under LSA-R.S. 13:3666, a witness shall be awarded an expert’s fee only as follows:

“Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court.”

In determining this fee certain factors are to be taken into consideration including: the degree of skill of the witness, the time spent in preparatory work, the extent and nature of the work performed and the time spent away from his job along with the actual time spent in court. Cole v. Mott, 351 So.2d 1326 (La.App.2d Cir. 1977); State Dept. of Highways v. Miltenburger, 344 So.2d 705 (La.App.lst Cir. 1977). Also, as previously indicated, the amount of an award for an expert’s fee is within the discretion of the trial court and will not be set aside in the absence of an abuse discretion.

The expert witness fee at issue awarded to Regenbogen by the trial court amounted to $2,833.32. This fee was based on appraisals on behalf of different claimants whose property, both movables and immovables, was destroyed by fire, plus an amount for his testimony at trial. Regen-bogen testified that he spent numerous hours consulting with the various parties whose property was destroyed. He also prepared an indepth report describing the various items, including an estimate of the value of each individual item. One of the reports was 25 pages in length. In consideration of these efforts by Regenbogen, coupled with his time spent in court testifying, we find that the trial court has not abused its discretion in awarding the expert witness fee.

John Clinton was awarded an expert’s fee of $150 for his testimony at trial. Under Welton v. Falcon, 341 So.2d 564 (La.App.4th Cir. 1976) a witness who is qualified as an expert is not entitled to a fee if he merely gives testimony as to facts and circumstances which could be stated by a lay witness. Upon examination of the record Clinton was qualified as an expert in the area of inhalation therapy but he merely testified as to facts and circumstances which a lay witness could have expressed. There was no testimony relating to his area of expertise. Accordingly, we find that the trial court abused its discretion in awarding this witness an expert’s fee.

The judgments appealed from are amended only to delete the award of the expert fee of John Clinton, and as thus amended, they are affirmed. Costs of these appeals to be paid by N.O.P.S.I.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    ERNST FOOD MART, INC. d/b/a Adolph H. Ernst Real Estate v. JACKSON-ATLANTIC INC. d/b/a World Bazaar.
    No. 12112.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Lawrence J. Ernst, Christovich & Kear-ney, New Orleans, for Ernst Food Mart, Inc. d/b/a Adolph H. Ernst Real Estate, plaintiff-appellant.
    Laurence D. Rudman, Rudman, Howard & Coleman, New Orleans, for Jackson-At-lantie, Inc. d/b/a World Bazaar.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This case involves a lessor’s right to cancel a lease after accepting payment of rent subsequent to the giving of the notice of cancellation. The lessor appeals from an adverse judgment.

The lessor Ernst Food Mart, Inc. d/b/a Adolph H. Ernst Real Estate entered into a contract of lease with the appellee, Jackson-Atlantic, Inc. d/b/a World Bazaar, which was to commence on or before September 15, 1970. The duration of the lease was for ten years with two five year options to renew in favor of the lessee World Bazaar. The rent was set at $1,833.00 per month with an additional “percentage rental” of five percent of the gross sales volume over the amount of $439,920.00 per year. The lease provided that the lessee was to provide a certified quarterly sales report and a certified annual audit to the lessor in order to verify the sales figures. The lease also provided that, if lessee failed to comply with any provision of the lease within ten days after notice by lessor demanding same, the lessor had the right to cancel the lease.

During the years of 1971 through 1980, Latter and Blum, Inc., who acted as accounting and leasing agent for the lessor, repeatedly had to request the quarterly and annual reports from the lessee in order to verify the gross sales figures of the lessee. As of 1980, no “percentage rental” had been collected because the gross sales figures of the lessee did not exceed the requisite amount.

On February 21, 1980, the lessee World Bazaar expressed its opinion in a letter to the lessor that it would like to exercise its five year option to renew the lease and that it presumed that it was in compliance with the terms of the lease. The lessor replied on February 26, 1980, that the lessee was in default of the lease agreement for not submitting all of its quarterly and annual reports timely, that the lease was therefore cancelled, and that the lessee was to vacate the premises as of May 1, 1980. On March 4, 1980, the lessee acknowledged receipt of the lessor’s letter and assured the lessor that it would comply with the terms of lease within the ten day period allowed for in the lease. Latter & Blum, Inc. verified in a letter dated March 13, 1980, that it received most of the quarterly and annual sales reports but that some of the reports had still not been received. By March 25, 1980, the lessor received all of the sales reports required by the lease, but on March 28, 1980, the lessor stated that the ten day period had expired thereby effectively can-celling the lease and that the premises must be vacated as of May 1, 1980. However, the lessor received and accepted payment of rent for the months of March, April, May, and June of 1980, within the first week of each of those months.

The trial court was of the opinion that there had been no breach of the lease agreement which would warrant its cancellation and that the plaintiff lessor’s actions were precipitated solely because of lessee’s attempt to exercise its option of renewal.

The issues that confront this court can be summarized as whether the lessee complied with the terms of the lease and whether the acceptance of rent after notice of cancellation of the lease in effect waives such a notice.

The appellant argued that the lessee breached the lease agreement when all the sales figures were not submitted timely and the lease was therefore cancelled. The ap-pellee responded that the terms of the lease had been substantially complied with because the violations were innocuous and that the lessor’s acceptance of rent after the notice of cancellation had been given served as a waiver of such a notice.

The facts reflect that the lessee had been given a notice of default and therefore had ten days to comply with the conditions of the lease. Although the lessee submitted most of the reports required by the lease agreement, it did not submit all of its reports within ten days after notice had been given. The requirement as to the quarterly and annual reports was a significant factor in the consideration for this lease. The purpose of this requirement is to afford the lessor a basis upon which it could determine if the sales percentage was due and whether the proper rent had been received. This court is of the viewpoint that once the notice of default was given, the lessee had ten days to totally comply with the terms and conditions of the lease or be subject to cancellation. We find that the lease agreement had been breached because of the failure of the lessee to timely file its sales reports. Chevalier v. Duvigneaud, 292 So.2d 779 (La.App. 4th Cir. 1974); Iacoponelli v. Curro, 260 So.2d 166 (La.App. 4th Cir. 1972). As a result of the breach of the lease agreement, the lessor had the right to demand the cancellation under its terms— See also LSA-C.C. Art. 2729. Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La. 1979).

However, the major issue in this case is the question of whether the cancellation of the lease was waived upon acceptance of rent after the notice of cancellation was given. On March 28, 1980, the lessor gave the lessee notice of cancellation because of lessee’s violations of the lease and requested the lessee to vacate the premises by May 1, 1980. But the lessor accepted rent for the months of March through June of 1980, in the first weeks of those months. The jurisprudence has been consistent in holding that when rental payment has been accepted after a notice to vacate has been given, the notice is vitiated and the tenant’s possession is maintained. Flores v. Gondolier, Ltd., 375 So.2d 400 (La.App. 3rd Cir. 1979); Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App. 4th Cir. 1975); West End Landing, Inc. v. Board of Commissioners, 299 So.2d 418 (La.App. 4th Cir. 1974); Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957).

The courts have also consistently held that when a landlord accepts rental tendered by his tenant after a notice or cancellation and a notice to vacate have been given, such acceptance vitiates notice and the lease agreement is reinstated. Four Seasons, Inc. v. New Orleans Silversmiths, 223 So.2d 686 (La.App. 4th Cir. 1969); Canal Realty & Improvement Company v. Pailet, 217 La. 376, 46 So.2d 303 (1950); Landis v. Smith, 227 So.2d 190 (La.App. 2d Cir. 1969).

In this instance, the lessor accepted rental payments after the notice of cancellation had been given; therefore, such notice is vitiated and the lease agreement is reinstated.

For the above reasons, the judgment of the trial court in favor of the defendant Jackson-Atlantic, Inc. d/b/a World Bazaar and against Ernst Food Mart, Inc. d/b/a Adolph H. Ernst Real Estate is affirmed. All costs of this appeal are to be paid by the appellant.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Oscar TIGLER v. HALLIBURTON COMPANY and XYZ Insurance Company.
    No. 12720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Writ Denied Dec. 14, 1981.
    Joseph M. Bruno, Bruno, Bruno & Blouin, New Orleans, for plaintiff-appellant.
    Esmond Phelps, II, John Manard, Dodge Hobson, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellee Halliburton Co.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his claim for workers’ compensation benefits on an exception of prescription based upon LSA-R.S. 23:1209. The issues are whether the trial judge correctly applied the statute to the case and whether the doctrine of contra non valentem prevented the prescription from running.

In August or September, 1977, plaintiff had an accident while operating a forklift for defendant. From that time until October 13, 1977, when he quit his job, symptoms of neck pain gradually increased. On October 5 he consulted Dr. Carlos Gorbitz, a neurosurgeon, who hospitalized him on October 12 for a myelogram and concluded that plaintiff was suffering from cervical spondylosis, a degenerative disease of the spine. Still having problems in December, 1977, plaintiff consulted his family physician, Dr. C. J. Meyers, who suspected a ruptured cervical disc and referred him back to Dr. Gorbitz. The latter in turn had additional studies performed, including psychological tests. Plaintiff continued to consult with Dr. Meyers, who, in January, 1979, referred him to a second neurosurgeon, Dr. John D. Jackson. Finally, Dr. Jackson diagnosed a ruptured cervical disc for which plaintiff was given corrective surgery. Dr. Jackson related plaintiff’s problems to his job as a forklift operator. However, plaintiff did not file his suit until October 16, 1979, over two years after he left his employment with defendant.

R.S. 23:1209 provides that claims for workers’ compensation benefits shall be barred unless filed within one year after the accident with two exceptions, the following of which is pertinent, one where compensation payments are made to the employee, and,

“. . . Where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Two conclusions follow from the foregoing recitation of the facts: First, plaintiff had one or more accidents while employed by defendant, and, second taking the best possible construction of the facts from plaintiff’s point of view, his injury developed when he saw Dr. Jackson in January, 1979. But his claim was prescribed because he failed to bring his suit within two years after his accident(s).

Plaintiff argues that the prescription does not apply because of the doctrine contra non valentem agere non currit prescrip-tio, meaning, no prescription runs against a person unable to bring an action. This doctrine was recently discussed in McClendon v. State, through Dept. of Corrections, 357 So.2d 1218 (La.App. 1st Cir. 1978) in which the court held that a wrongful death action did not prescribe against the state even though suit was brought more than two years after the date of the deaths. In that case plaintiff’s parents were murdered and despite due diligence on her part in cooperation with law enforcement authorities the identity of the murderer was not ascertained until less than a year before she brought suit. The murderer, of course, had actively concealed his connection with the crime and while the state did not conceal any information or mislead plaintiff she had no possible way of knowing that a cause of action existed in her favor against the state until the identity of the murderer was revealed, so she was given the benefit of the doctrine of contra non valentem.

We see no point in discussing all of the eases in which the doctrine has been applied, many of which are cited and discussed in the McClendon case, but is is sufficient to say that the facts of this ease do not warrant the application of the doctrine. The only fact on which plaintiff relies to apply the doctrine is that his family physician, while suspecting a disc in December, 1977, never told plaintiff of his suspicions. Nothing in the record indicates that Dr. Meyers had any information from plaintiff concerning any accident on his forklift and his suspicions of a disc were followed up by a qualified neurosurgeon, Dr. Gorbitz, who reported back to Meyers that there was no disc. There was no fraud or concealment in this case. Plaintiff knew all along that he was injured beginning before he left his employment. Even if the injury did not develop until January, 1979, he still had nine months in which to file his suit under the prescriptive statute. His failure to do so within two years of the date of the accident or at the latest the last day he was employed by defendant caused his suit to be barred by prescription.

Finally, plaintiff’s reliance on Lester v. Rebel Crane and Service Co., 393 So.2d 674 (La.1981) is misplaced. While that case declared that the two-year prescription is not a peremption as previously considered in the jurisprudence, and while the court held that a suit filed in February, 1979, for an accident which occurred in June, 1974, was not prescribed, the decision was based on the fact that wages had been paid to plaintiff in lieu of compensation over a long period of time and less than a year had passed since the last payment of wages in lieu of compensation. The first exception of R. S. 23:1209 had application to that case but is inapplicable here.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Alfred E. HORRIDGE, Sr. v. Earl G. COONEY, Sr.
    No. 12576.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Roger R. Roy, New Orleans, for defendant-appellant Earl G. Cooney, Sr.
    Adrianne L. Baumgartner, Porteous, To-ledano, Hainkel & Johnson, New Orleans, for defendant-appellant State Farm Mut. Auto. Ins. Co.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This case arose out of an automobile accident caused by Sheila Cooney, the minor daughter of appellant, Earl G. Cooney, Sr., while she was driving an automobile owned by her brother, Michael Cooney, appellant’s son. All of the Cooneys resided in the same household. Appellant as defendant in the main demand brought a third party demand against appellee, State Farm Mutual Automobile Insurance Company, appellant’s own automobile liability insurer, claiming coverage under his policy. From a judgment dismissing the third party demand, Earl G. Cooney, Sr., has appealed.

The policy issued by State Farm to appellant contains the following pertinent provisions: Part I—Liability

“Coverage 8 ... To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: (property damage) . . . arising out of the ownership, maintenance, or use of the owned automobile or any unowned automobile ...” (emphasis ours)

The following persons are insured under Part 1 above

“(a) with respect to the owned automobile.
(1)The named insured and any resident of the same household.
(b) with respect to a non-owned automobile,
(1) the named insured
(2) any relative . . . provided his actual operation ... is with the permission of the owner.”

The policy defines a “non-owned” automobile as:

“. . . an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative other than a temporary substitute automobile;” (emphasis ours)

A relative is defined as “a relative of the named insured who is a resident of the same household.”

We conclude that the judgment of the trial court is correct. Sheila was not driving an “owned automobile” since the automobile was owned by Michael and not by State Farm’s insured Earl G. Cooney, Sr. Furthermore, Michael’s automobile does not qualify as a “non-owned automobile” under the policy because the automobile was owned by appellant’s relative, Michael Coo-ney.

In addition, the evidence shows that Michael’s automobile was furnished for the regular use of Sheila. She used the car to go back and forth to school about five days a week. She had a set of keys to the automobile, and she could use the car whenever she wanted with standing permission from Michael.

The ease is indistinguishable from Jones v. Falcon, 297 So.2d 746 (La.App. 1st Cir. 1974) which found no coverage under the same language and found the language to be clear and unambiguous.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Irvin Joseph WILLIAMS v. Joan Marie Doyle, Wife of Irvin Joseph WILLIAMS.
    No. 12358.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.

      W. Matthew Campbell, New Orleans, for defendant-appellee.
    Gerald J. Martinez, Metairie, for plaintiff-appellant.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is an appeal by the father from a judgment in favor of his divorced wife making past due support payments executo-ry in the amount of $1442.00. The issue in the trial court was whether the parties had agreed to reduce the weekly payments by amounts spent by the father on items he supplied to his son. The issue on appeal is whether the trial court erred in failing to find such an agreement except with respect to $88.00 the father paid for dental bills incurred for the boy.

The father was originally ordered to pay $40.00 per week to the mother for the boy’s support. At trial time $1530.00 would have been due. The father testified that he had bought a television set, a bicycle and clothing for his son, paid his dental bills, and purchased government savings bonds in the name of himself or his son pursuant to an agreement with the mother that he would be credited with these expenditures against his support obligation.

The mother denied making any agreement but admitted that he had taken the boy to the dentist on four occasions and paid $88.00 for these visits. She had acquiesced in his proposal to pay $50.00 every two weeks as a convenience to him but never with the understanding that he would not owe the difference. She stated that the television set and bicycle were gifts to the boy by his father and had nothing to do with his support obligation.

Parents may agree to modify the amount of support set by judgment, and such an agreement will be enforced if it is in the child’s interests. But the parties must clearly agree to such a modification and the burden of proof is on the party relying on the agreement to relieve him of his obligation under the judgment to prove the existence of the agreement. Dubroc v. Dubroc, 388 So.2d 337 (La.1980).

Appellant’s case was based on his own testimony which was rejected by the trial court except with respect to some of the dental bills. The judgment on appeal is a factual conclusion that appellant did not prove the parties did “clearly agree” as required by the Dubroc case. Since the record establishes that this finding is not clearly wrong, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge. SAMUEL, BOUTALL and KLIEBERT, Judges,

text:
    Succession of Dr. Thomas H. MIMS.
    No. 12660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Andrew M. Weir, Metairie, for appellee Edgar Mims.
    Oliver P. Carriere, Jr., Michael D. Char-bonnet, Racivitch, Carriere, Panzeca & Charbonnet, New Orleans, for appellant Marion H. Mims.
    Before REDMANN, SCHOTT and KLEES, JJ.
   SCHOTT, Judge.

This is an appeal by the testamentary executrix of the Succession of Dr. Thomas H. Mims dismissing her petition to annul the act of adoption by decedent of Edgar H. Mims. The issue is whether the adoption of a person over 17 years of age by notarial act in 1943, pursuant to Act 169 of 1940, now LSA-R.S. 9:461, is valid even though the act was not registered in the Conveyance records until January 17, 1975, after the death of decedent.

Edgar H. Mims was born of the marriage between Olivia Price and Edgar Brisco on December 13, 1925. The parents were divorced in 1932 and custody was awarded to the mother. In 1936 Olivia Price Brisco married Dr. Mims and on April 15, 1943, Dr. Mims executed the act adopting Edgar H. Mims and formally changing his name to Edgar H. Mims before a notary and two witnesses. The act was signed by Mrs. Mims and Edgar. Dr. Mims subsequently obtained an amended birth certificate for Edgar showing himself as the father of Edgar H. Mims. On January 6, 1960, Mrs. Mims died, and, on October 7 her succession was opened in the Civil District Court for the Parish of Orleans on the joint petition of Dr. Mims and Edgar H. Mims in which they alleged the circumstances of Edgar’s birth, adoption, and change of name. Dr. Mims died on April 29, 1974.

On October 25, 1972, Dr. Mims made a last will and testament in which, after reciting that he had three children of his second marriage, he stated: “One (1) child was born of the third marriage [to Olivia Price], to-wit: Edgar H. B. Mims. No other children were born to me during my lifetime. I never adopted anyone ...” On February 14, 1974, Dr. Mims made another will in which he recited:

“In the event Edgar H. Mims is one of my forced heirs, I give to said Edgar H. Mims, his legitime, same to be paid to him in cash out of my estate.”

He left all the rest of his property to his three daughters.

On June 13, 1974, this succession was opened by one of the daughters with a petition to probate the 1972 will. On June 18, 1974, another daughter filed a petition to probate the 1974 will and a contest over its validity developed. On February 2, 1979, the executrix (the same daughter was named under both wills) filed a petition to annul the act of adoption on the ground that it was not registered. Edgar Mims filed a motion for summary judgment against the executrix and the judgment on appeal granted the motion dismissing the petition of the executrix.

R.S. 9:461 provides in pertinent part as follows:

“Any person above the age of twenty years may adopt any person over the age of seventeen years, according to the following conditions; limitations and procedure:
“(1) That the adoption shall be effected by the execution of a notarial act signed by the adoptive parent or parents and the person to be adopted, where the person to be adopted is a major or an emancipated minor, ...”
“(2) That the notarial act executed in accordance with paragraph (1) of this Section shall be registered with the clerk of court of the parish in which the act is executed, except in the parish of Orleans, where it shall be registered with the register of conveyances for the parish of Orleans. . . . ”

When last faced squarely with this question this court in Succession of D’Asaro, 167 So.2d 391 (La.App. 4th Cir. 1964) held that registration under paragraph (2) of the statute was essential to the adoption’s validity.

This court in Poynot v. Pfister, 348 So.2d 98 (La.App. 4th Cir. 1977) writ refused 351 So.2d 168, was confronted with the validity of an adoption pursuant to R.S. 9:461, where a petition for the interdiction of the adopter was filed after the date of the act of adoption but the act was not registered until several months later. The holding of the case was that the registration of an otherwise regular act of adoption, subsequent to the interdiction of the adopter, is not nullified by LSA C.C. Art. 401, but the court implied doubt about the holding of Succession of D’Asaro and preferred the holding of the 3rd Circuit in Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir. 1976) writs refused, 342 So.2d 217. In Poy-not this court said:

“Furthermore, there is no statutory or jurisprudential rule which mandates registration of the act of adoption at any particular time. Nor is there any clear indication that the time within which the recordation takes place (if, indeed, it is required) need be ‘reasonable.’ Finally, there is certainly no authority for the gratuitous imposition of a specific number of days upon which to make the ultimate determination of reasonableness where the legislature, itself, has chosen not to be definitive.”

We are satisfied that the better view is expressed in the Fontenot case with respect to the specific problem at hand. The first paragraph of the act states that the adoption shall be effected by the execution of the notarial act. We disagree with the D’Asaro court’s treatment of the argument in that case as to the import of that word “effected.” The second part of the act is a directive to the notary to register the act and is for the benefit of third persons relying on the public records. The intentions of the parties flow clearly from their execution of the notarial act itself, and their intentions should not be frustrated because of the failure of a notary to register the act in the public records. This is particularly pertinent in the instant case where Dr. Mims not only demonstrated his intention quite clearly when he adopted his wife’s child and gave him his name over thirty years before his death but also reaffirmed his intention in 1960 after his wife died in his petition to open her succession and again in 1972 in his will describing Edgar as issue of his marriage to Edgar’s mother. The language of his 1974 will, while suggesting that some coolness had developed between Edgar and Dr. Mims, is nevertheless an acknowledgment that Dr. Mims had clearly regarded Edgar as his adopted son with the rights of a forced heir.

We are aware that Act 169 of 1940 originally contained Section 3 as follows:

“That no Act of adoption of persons over the age of seventeen years executed subsequent to the effective date of this Act shall be valid unless all the essential provisions of this Act have been complied with. .. . ”

and not until 1950 when the Revised Statutes were adopted was Section 3 deleted “as unnecessary,” Reporter’s Notes preceding R.S. 9:461, so that Section 3 was present when the act of Edgar’s adoption was executed. Nonetheless, we adhere to the view that this act is valid notwithstanding the failure to register it.

Accordingly, we overrule Succession of D’Asaro and affirm the judgment now on appeal.

AFFIRMED.

SAMUEL, BOUTALL and KLIEBERT, JJ., dissent from en bane ruling.

SAMUEL, BOUTALL and KLIEBERT, Judges,

dissenting.

Although unusual in an en banc matter under our internal rule, we find it necessary to write this dissent.

As pointed out in Succession of D’Asaro, the right to adopt and to be adopted is not a natural right; it flows purely and only from legislative action. Act 109 of 1924, which permitted adoption of persons over 17 years of age, has been amended and reenacted on numerous occasions. But, with only one relatively short exception, in all this long history of adoption of such persons in Louisiana every legislative act has required recordation or registration of the act of adoption. That sole exception was contained in Acts 46 of 1932 and 44 of 1934. However, Act 169 of 1940 reinstated the requirement and that provision was retained in R.S. 9:461 and Act 514 of 1952.

D’Asaro was handed down on July 15, 1964. Receiving more than the usual amount of publicity accorded the average appellate opinion and decree, it was both defended and adversely criticized in three law review publications in December, 1965 and February, 1966. The legislature must have been aware of the D’Asaro holding on the requirement of recordation or registration. Yet, it never has enacted any change in that requirement. This absence of any action by the legislature over this period of years appears to us to be significant.

In our view, any change in the requirement of recordation or registration is a matter which now addresses itself to the legislature and not to the courts. Overruling D’Asaro is judicial legislating, a practice in which the courts should never indulge.

Accordingly, we respectfully dissent from the en banc decision to overrule Succession of D’Asaro.

      . In accordance with our internal rules this case was submitted to the court en banc and a majority have concurred in overruling Succession of D’Asaro.

      . 40 Tul.L.Rev. 1, 13, 14; 26 La.L.Rev. 143; and 26 La.L.Rev. 459, 464, 466.


author: CHEHARDY, Judge.

text:
    Michael J. KILLEEN, Jr. v. Eugene M. DUCOTE, d/b/a Gene Ducote Volkswagen-Fiat, and Fiat Distributing Company.
    No. 12054.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.

      James E. Glancey, Jr., and Stanley E. Loeb, New Orleans, for Michael J. Killeen, Jr., plaintiff/appellee and appellant.
    Pierre F. Gaudin, Gretna, for Eugene M. Dueote, d/b/a Gene Ducote Volkswagen-Fiat, defendant/appellant and appellee.
    Bernard, Cassisa, Babst & Saporito, Robert H. Wood, Jr., Metairie, for Fiat Motors of North America, Inc., defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Michael J. Killeen, Jr., and defendant, Eugene M. Ducote, doing business as Gene Ducote Volkswagen-Fiat, both appeal a district court decision in favor of the plaintiff and against the defendant in the sum of $1,800 plus interest from the date of judicial demand and all costs of the proceedings. The judgment was later amended in favor of the plaintiff and against the defendant also awarding the plaintiff attorney fees in the amount of $1,000 in addition to the initial sum awarded.

In his reasons for judgment, the trial court judge stated:

“The plaintiff, Michael J. Killeen, Jr., filed this suit against Eugene M. Dueote, doing business as Gene Ducote Volkswagen-Fiat and Fiat Distributing Company, on January 10, 1977. He alleged that he purchased from the defendant a 1976 Fiat which he later discovered had been damaged and then sold to plaintiff as a new car. Plaintiff thereupon spoke with the defendant, who admitted that the car had been previously damaged but refused to return to Mr. Killeen his purchase price. After making repeated requests of Ducote, the plaintiff filed suit.
“The evidence at trial established conclusively that the plaintiff’s auto had been damaged before the sale, yet the plaintiff was not informed of this condition by the seller. The plaintiff has testified that, had he known of this defect, he would not have bought the car.
“In Tauzin v. Broussard Plymouth, Inc. 283 So.2d 266 (3rd Cir. [La.App.] 1973), the court held that an automobile dealer who represented to a buyer that an automobile was new when in fact it had been damaged in a collision was guilty of fraud according to La.C.C. Art. 2547.
“The facts in the instant case are quite similar to those of Tauzin. Therefore, this court holds that the failure of the defendant to disclose this material fact that the car had been involved in a prior accident does constitute fraud.
“The damage done to the auto was not such as to render the auto totally unusea-ble or unsuited for its purpose. Therefore, a reduction in price is proper. Tauzin v. Broussard Plymouth, Inc., supra, Aiken v. Moran Motor Co., 165 So.2d 662 (1st Cir. [La.App.] 1964). Therefore, the court will award judgment for plaintiff and against the defendant in the amount of ONE THOUSAND EIGHT HUNDRED AND 00/100 ($1,800.00) DOLLARS plus interest and costs.”

At the trial on the merits of the case the plaintiff testified that in June of 1976 he purchased what he thought was a new Fiat automobile from Ducote’s business establishment for $5,012.79. He explained that financing was arranged in the form of a personal loan through the Bank of New Orleans, which was secured by a chattel mortgage on the car.

Killeen stated he returned the car for repair of a leak on the inside caused by the air-conditioning or the cooling system, to remedy dents in the hood, and for front bumper problems. He further testified in the latter part of August or early September of 1976 he had an accident with the car in Mississippi on a rainy night when the car spun in a turn and flipped into a ditch. He said the local repair shop in Mississippi took one month to repair the car, due to the difficulty of getting parts. When he went to retrieve the automobile from the repair man, he was told that extensive “bondo” had been found throughout the rear end, a cross member section behind the grill was bent and rusted, and numerous screws were missing from the grill front, leading to the conclusion that the vehicle must have been involved in some accident prior to the immediate one.

Upon his return to New Orleans, after failing to reach what he considered an acceptable settlement between himself and Ducote, the plaintiff delivered the car to the defendant along with its keys and filed an action in redhibition.

Ducote testified he personally learned of the pre-sale damage done to the Fiat only when the plaintiff came to complain of the evidence found during repair of damages from the second wreck. He then discovered from a check of the records on the vehicle and a discussion with the establishment’s service manager that the first accident occurred when a porter on the lot was driving another vehicle and hit the car in question, driving it into a car wash rack area and damaging the front grill. Ducote also admitted that, according to his records, after the sale of the ear he had repaired a leaking air-conditioner and a fluctuating tachometer, had aligned the front end and balanced the front wheels, and he had one work order concerning the car jerking at high and low speeds. He also had resecured the front bumper guard. Apparently the car was brought in by the plaintiff on at least one other occasion, again for repair of the air-conditioner leak and because the tachometer was sticking. Plaintiff admitted these problems were ultimately remedied by the dealership and stated the mileage on the car was 3,241 when it was returned to Ducote.

David Ray, who repaired the subject vehicle after the plaintiff’s accident in Mississippi, was accepted by the court as an expert in the body and fender automobile business. He said he discovered prior damage from the first accident under the hood and behind the grill, which damage affected a portion of the main structural part of the car, the radiator support. He said the evidence he found was an extensive amount of body filler on the left side and he could also see scratches which appeared to be body filler. His conclusion was that an integral part of the support system of the car had been damaged in the first accident. Ray also stated the total cost of repair for damages from the second accident was $1,481.31.

Richard Berger, service manager of the defendant’s business establishment, was accepted by the court as an expert in managing a body and automotive shop. He confirmed Ducote’s description of the first accident, which took place on the car lot, adding that he had had the grill, front bumper and light assembly, and the rear fenders repaired. He described the damage as “minimal” and said the total amount of repair required cost the company $292.52. He said that at the time he inspected the vehicle he saw no damage to the front radiator support such as was allegedly later discovered by Ray. He said, however, that the front radiator support could be damaged in an accident such as the second one in which the vehicle was involved.

The present case is very similar, as noted by the trial court judge, to the factual situation and issues presented in the case of Tauzin v. Sam Broussard Plymouth, Inc., 283 So.2d 266 (La.App.3d Cir. 1973). In that case the plaintiff discovered, subsequent to the purchase of his car, that the vehicle had been involved in a collision prior to the sale and had sustained $413 in damages. The court held that LSA-C.C. art. 2520 was authority for rescission where the vices and defects complained of are of such a nature as to render the thing sold either totally useless to the buyer or its use so inconvenient that it is to be assumed the buyer would not have purchased it had he known of such defects. However, the appellate court agreed with the trial court that the defects complained of in that case (loose battery or starter cable, loose speedometer cable, malfunctioning temperature gauge, and loose or missing screws, among others) were adjustments ordinarily associated with the purchase of a new car, or “minor” in nature and did not justify rescission. The appellate court did note, however, that LSA-C.C. art. 2547 specifically authorizes the trial court judges to grant a reduction in price in an action of redhibition and it held there was sufficient evidence in the record to justify a reduction in the price in the amount of $600.

Although this court agrees with the results of Tauzin v. Sam Broussard Plymouth, Inc., supra, we prefer the rationale expressed in Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975), wherein the court agreed with the trial court that the buyer did not meet the burden of proving a redhibitory defect under LSA-C.C. art. 2520, but then stated at 802-803:

“In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer. See Ingersoll v. Star Chrysler, Inc., La.App., 234 So.2d 85 (4 Cir. 1970), writ refused 256 La. 365, 236 So.2d 499 (1970); Wolfe v. Henderson Ford, Inc., La.App., 277 So.2d 215 (3 Cir. 1973). See also LSA-C.C. Arts. 2541, 2543.
“In the Star Chrysler case, the Court said:
‘In every redhibitory action if the evidence establishes only a partial failure of consideration the court has the power and duty to decree a quanti minoris, or a reduction of the purchase price.’
“The Court, in Henderson Ford, ruled:
‘A decree of quanti minoris is responsive to an action for redhibition, being expressly authorized by LSA-C.C. Art. 2543. It follows that in every redhibi-tory action, the judge has the power and the duty, if he believes that the evidence establishes only a partial failure of consideration, to decree a quanti minoris.’
“In such a case, the amount of the reduction in price should be the difference between the actual purchase price and the price a reasonable buyer and seller would have agreed upon if they had both known of the defect. See Menville v. Stephens Chevrolet, Inc., supra; Tauzin v. Sam Broussard Plymouth, Inc., supra; Gauche v. Ford Motor Company, La.App., 226 So.2d 198 (4 Cir. 1969).
“In Stephens Chevrolet, in determining the amount of reduction to which the buyer was entitled, the Court said:
‘The diminution which the trial judge may decree under C.C. art. 2543 is theoretically the difference between the sale price and the price the reasonable buyer and seller would have agreed upon if they had known of the defects. ‘To prove the theoretical price to which the actual sale price should be reduced, a plaintiff attempts to establish the fair value as of the time of the sale, if the defects had been known. Evidence as to this theoretical value may consist of expert opinion testimony, of costs expended to place the thing in sound condition, or of other facts bearing on the reduced price a forewarned buyer would have paid and a seller with knowledge of the defects would have accepted. But in the final analysis the trier of fact cannot mathematically calculate what price the parties would have agreed to, if they had known of the defects; the trier must consider the overall evidence and, using limited discretion, must set a reduced sale price which fictionally represents the fair value at the time of sale.’ ”

In the present case, similarly, we do not find that the car was malfunctioning to any great extent during the period the plaintiff actually used the vehicle, up to the time of the second accident. However, because it was uncontroverted that some damage to the car was sustained as a result of the first accident and certainly due to the fact the plaintiff assumed he was buying a car which had not sustained any previous damage, although repaired, there was a partial failure in consideration. The trial court judge, therefore, was correct in awarding a reduction of price in the amount of $1,800, an amount clearly within the discretion afforded him in setting damages.

In regard to the issue of attorney fees, LSA-C.C. art. 2545 states the seller who knows the vice of the thing he sells and omits to declare it is also answerable to the buyer in damages and for reasonable attorney fees. In addressing itself to this question the court in Wade v. McInnis-Peterson Chevrolet, Inc., supra, stated at 803:

“To recover attorney’s fees the buyer must prove knowledge of the defect by the seller. He need not prove wilful misrepresentation. It is sufficient for the buyer to prove actual or constructive knowledge by the seller. Thus, if the seller knew or should have known of the defect and failed to declare it to the buyer, the seller is liable additionally for reasonable attorney’s fees. See Juneau v. Bob McKinnon Chevrolet Company, supra; Rey v. Cuccia, supra.”

Although the defendant Ducote insists, believably, that he had no actual knowledge of the damage and repair done to the subject vehicle prior to its sale to the plaintiff, because the car was both damaged and repaired by employees of the defendant, this court holds that he at least had constructive knowledge of what had happened to the vehicle while it was on the lot of his establishment, and, therefore, is answerable to the plaintiff for attorney fees. A review of the record satisfied this court, moreover, that the award of the trial court for $1,000 in this regard was reasonable compensation for the work done by plaintiff’s attorney in this case.

Additionally, this court grants the plaintiff $500 in attorney fees for prosecution of the case on appeal, thereby increasing those fees to a total amount of $1,500, under the authority of LSA-C.C. art. 2545 and Dunlap v. Chrysler Motors Corp., 299 So.2d 495 (La.App. 4th Cir. 1974).

Because the subject car was always completely useable, except during the period it was being repaired as a result of the second accident, the trial court properly denied the additional damages claimed by the plaintiff.

For the reasons assigned, therefore, the district court judgment is amended, increasing attorney fees awarded to the plaintiff to $1,500, and in all other respects the decision is affirmed.

AMENDED AND AFFIRMED.

      . The judgment also decreed that the lawsuit filed against the defendant, Fiat Distributing Company, was dismissed.


text:
    Wanda CLARK v. SELAGO FEDERAL CREDIT UNION.
    No. 12075.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Writ Denied Dec. 14, 1981.
    Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, C. J. Murray, New Orleans, for plaintiff-appellee.
    Joseph A. Taranto, Anthony J. Milazzo, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Selago Federal Credit Union (Selago), appeals an August 28, 1980 district court judgment in favor of plaintiff, Wanda Clark, which issued a preliminary injunction directed to Selago, restraining, enjoining and prohibiting it from attempting to enforce an October 12, 1979 judgment in an action entitled “Selago Federal Credit Union versus Wanda Clark,” No. 224-671 on the docket of the Twenty-fourth Judicial District Court in and for the Parish of Jefferson. The judgment appealed from also noted that the previous judgment had been satisfied in full by the assignment of title to the automobile in question in this litigation to the defendant on November 28, 1979. The second part of the judgment stated the defendant was not enjoined from pursuing its intervention in the matter entitled “Wanda Clark versus Cumis Insurance Society, Inc.,” No. 218-577 on the docket of the Twenty-fourth Judicial District Court in and for the Parish of Jefferson.

In the October 12, 1979 judgment rendered by the district court, defendant in the present case obtained judgment against Clark on a motion for summary judgment, on its suit on a promissory note, in the amount of $5,274.60 plus one percent interest thereon from October 24,1978 until paid and for 20 percent attorney fees on the aggregate of the principal and interest, and for costs of the proceedings. Selago was apparently the holder and payee of the promissory note and chattel mortgage executed by Clark on a 1977 Pontiac automobile owned by her.

The record reflects that on November 28, 1979, the following document was executed by Clark, who was then residing in the State of Florida:

“BEFORE ME, the undersigned authority personally came and appeared Wanda Clark, a person of the full age of majority, who after being duly sworn did depose that:
She is the owner of a 1977 Pontiac 2 door, Gran Prix, 8 cyl., Motor Serial # 2J57Y7A231680, and that the Selago Federal Credit Union holds the chattel mortgage on said vehicle, and that the appearer, Wanda Clark, does hereby assign, transfer and convey all of her rights, titles and interest in and to the aforementioned vehicle to the Selago Federal Credit Union.”

Subsequently, the defendant Selago, through its agent, executed the following:

“AFFIDAVIT OF POSSESSION OF MOTOR VEHICLE BY MORTGAGEE
STATE OF LOUISIANA PARISH OF Orleans
BE IT KNOWN, That on this 4th day of April, 1980, before me, a Notary Public, in and for the Parish of Orleans, State of Louisiana, duly commissioned and qualified, and in the presence of the undersigned competent witnesses, personally came and appeared Henry J. Smith duly authorized and representing Selago Federal Credit Union, who being first duly sworn, did depose and say: That he is the legal holder of one certain note, secured by chattel mortgage, in the amount of $6300.00, dated May 24, 1977, covering one automobile, Serial No. 2J57Y7A231680, Model GRA, Body Style 2 door Year 1977; and that said note and chattel mortgage was executed and delivered to the credit union by Wanda Clark and was duly noted by the Commissioner of Motor Vehicles on the 24th day of May, 1977, upon the face of Title No. L402266, issued in the name of Wanda Clark; and that according to said note and chattel mortgage the same was due and payable on the 24th day of October, 1978 and that said mortgagor has failed to pay said indebtedness according to the terms of the chattel mortgage and by reason of the terms of the chattel mortgage having been violated, Selago Federal Credit Union has taken possession of the above described vehicle on November 28, 1979, and has obtained a voluntary surrender form signed by the Mortgagor.
Selago Federal Credit Union is, therefore, now in quiet and peaceful possession of said vehicle and is the legal and rightful owner of same and will warrant and defend the title to said vehicle against all and every person claiming any interest therein.”

On the same date Selago sold the vehicle to Joseph S. Centanni for $1,000.

The defendant in the present action, Sela-go, now contends that the district court was in error in enjoining it from attempting to enforce the October 12, 1979 judgment and in assigning reasons that it had been fully satisfied by the assignment of title to the automobile. In support of that argument the defendant contends the Deficiency Judgment Act is inapplicable to the present case.

LSA-R.S. 13:4106 states:

“If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.”

Additionally, LSA-R.S. 13:4107 also recites:

“R.S. 13:4106 declares a public policy and the provisions thereof can not, and shall not be waived by a debtor, but it shall only apply to mortgages, contracts, debts or other obligations made, or arising on or after August 1, 1934.”

The above statutes were discussed in the case of Ardoin v. Fontenot, 374 So.2d 1273, 1274 (La.App. 3d Cir. 1979):

“A creditor can obtain a deficiency judgment only if the property has been sold under an executory proceeding, after a valid appraisal has been made in accordance with the applicable law. LSA-C.C.P. Arts. 2771 and 2723; LSA-R.S. 13:4106-4107; League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3rd Cir. 1975). As this court stated in the latter case, the rationale of the Deficiency Judgment Act (LSA-R.S. 13:4106-4107) is ‘the strong public policy of protecting a debtor from possible abuse resulting from the judicial sale of his property without notice and without the benefit of proper appraisement.’ In order to prevent the thwarting of that public policy, it is necessary that the statutory requirements be complied with. Ford Motor Credit Company v. Samec, 227 So.2d 164 (La.App. 2nd Cir. 1969); Bourgeois v. Sazdoff, 209 So.2d 320 (La.App. 4th Cir.1968).”

Defendant further argues, however, that under the wording of the Deficiency Judgment Act and the jurisprudence under the act, property sold without appraisement must be the property of the debtor in order for the provisions of the act to apply. In the present case it is argued that the automobile was transferred from Clark to Sela-go by the Act of Assignment on November 28, 1978 and, as a result, appraisement was not required and the Deficiency Judgment Act does not apply. We cannot agree.

Although the defendant cites language from Executive Car Leas. Co. of N. Orl. v. Alodex Corp., 279 So.2d 169 (La.1973), and Clay-Dutton, Inc. v. Plantation Nursing Home, 239 So.2d 442 (La.App. 4th Cir. 1970), which seems to support its position, those cases are clearly distinguishable from the present one because the properties involved, leased automobiles, had remained at all times the property of the creditor-lessor and had never been the subject of a mortgage.

Similarly the case of Mercantile Financing v. Mauroner-Craddock, Inc., 259 So.2d 567 (La.App. 1st Cir. 1972), is equally distinguishable from the present case. Although the court in that case refused the defendants-debtors the protection of the Deficiency Judgment Act because the immovable involved had been previously transferred to the plaintiff, that property had never, at any time, been the subject of a mortgage between the parties, but was transferred by one of the defendants to the plaintiff to satisfy a debt due under an unsecured promissory note.

In the present case the vehicle was used to secure the promissory note and chattel mortgage executed by Clark. When the defendant sold the vehicle without a valid appraisal having first been obtained, it therefore forfeited its right to proceed against the plaintiff in the nature of a deficiency judgment under the terms of LSA-R.S. 13:4106. Furthermore, the full transfer of the vehicle to Selago cannot be looked upon as a waiver of Clark’s rights under LSA-R.S. 13:4106 because such a waiver is strictly prohibited by the provisions of LSA-R.S. 13:4107 and the public policy of this State.

Although defendant alleges in brief that appraisals were made by Clark prior to her filing suit against Cumis Insurance Society, Inc., such appraisals are not part of the record before this court, nor does the record reveal support of Selago’s allegations that it was agreed between itself and Clark that the vehicle would be sold by Selago, the proceeds applied to her account and the balance paid by her from any damages she would recover from her suit against the insurance company or by other means.

For the reasons assigned, therefore, the district court judgment is affirmed in all respects.

AFFIRMED.

      . The act states: “If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property * * * by a debtor * * * the debt nevertheless shall stand fully satisfied***."


text:
    Joseph R. LA ROCCA v. Rod SOHNGEN.
    No. 12082.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Craig J. Hattier, New Orleans, for plaintiff-appellee.
    Carol R. Welch, LaPlace, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Rod Sohngen, appeals a district court decision on a motion for summary judgment rendered on May 5, 1980, in favor of plaintiff, Joseph R. La Rocca, and against the defendant in the sum of $1,098.74 in addition to legal interest from date of demand until paid and all costs of court.

Subsequent to that judgment the court denied defendant’s motion for a new trial on May 28, 1980. However, on June 13, 1980, the district court issued the following order:

“This matter came for hearing this day for trial on the merits, though earlier the Court rendered summary judgment in favor of the Plaintiff and thereafter denied motion for new trial.
“This Court had strong feelings following oral argument in May that the Plaintiff had not, in fact, carried the burden of proof and so stated in Open Court. However, while the case was under advisement this Court then considered the motives of the Defendant with respect to the fact that the check given for payment was returned ‘NOT SUFFICIENT FUNDS.’ Taking a case under advisement implies that the Court has not, in fact, made up its final determination as to the merits of the case and during this period of time that the Court took into consideration the NSF check and thereafter ruled in favor of the Plaintiff. In the opinion of this Court, no purpose is served by trying the case on the merits; therefore, the motion urged by Mr. Hattier is granted and the final judgment of this Court is reflected in its judgment of May 5th and remains undisturbed, and the Defendant’s time for appeal shall begin to run at the receipt of this order.”

Defendant argues on appeal that the trial court erred in finding that no genuine issue of material fact remained to be resolved based on the evidence put forth by the parties pursuant to plaintiff’s motion for summary judgment. We agree and reverse.

LSA-C.C.P. art. 966 states:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made, at any time.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”
Additionally, LSA-C.C.P. art. 967 reads: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be rendered against him.
“If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. “If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

In the case of Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980), the court also established that in deciding whether all material issues have in fact been disposed of, any doubt is to be resolved against the granting of summary judgment and in favor of trial on the merits. The court further noted that a motion for summary judgment must be granted when reasonable minds must inevitably conclude the mover is entitled to judgment on the facts before the court.

The plaintiff in the present case filed a petition to recover rent past due and rent due on the unexpired term of the lease, asking for damages in the amount of $1,333.50. The petition alleged the defendant had failed to pay the rental due on June 1, 1979 because the check issued by the defendant for that date was returned by the bank marked “NSF.” By the terms of the lease, therefore, the plaintiff alleged that all of the rent for the unexpired term of the lease was due from defendant. It was also alleged in the petition that the defendant violated the terms of the lease by causing the leased premises to suffer waste, injury and defacement in the form of holes in the walls, filthy carpets, and garbage and debris on the premises.

A review of a copy of the lease, signed by the parties of this lawsuit and included in the record before this court, reveals the defendant leased an apartment from the plaintiff for a term to commence on October 10, 1978 and to end on October 5, 1979, payable in equal monthly installments of $290 in advance on the first day of every calendar month during said term. The defendant, under the terms of the lease, also agreed, at the end of the said term, to quit and surrender the premises in as good order and condition as they were at the beginning of the term, reasonable wear and damage by the elements excepted.

The subject lease also states that in the event of termination of the lease, the tenant shall remain liable until the time when the lease would have expired for the equivalent amount of all the rent reserved in the lease, less the avails of reletting.

In his answer to the plaintiff’s petition, the defendant denied all of La Rocca’s allegations. In regard to the motion for summary judgment, the plaintiff filed an affidavit stating he had received an estimate from a professional painting contractor to repair the leased premises for $395 and further stating that he had repaired holes in the drapes, replaced light bulbs, replaced the shower rod, patched holes, and painted the premises. He also said he had incurred an additional expense of $40 in eradicating fleas therein. Also included in the record were copies of a painting estimate and a pest control bill in the amounts previously mentioned, as well as a copy of a letter sent by the plaintiff’s attorney to the defendant itemizing damages to the premises, informing him that he had forfeited his $275 dam* age deposit and demanding an additional damage payment of $173.50. Affidavits of the painting contractor and also those of Donna Lusignan and Julie J. La Rocca were also filed in connection with the plaintiff’s motion for summary judgment, attesting to the damages as sworn to by the plaintiff.

The defendant, on the other hand, filed a memorandum in opposition to the motion for summary judgment with supporting affidavits by himself, Ronald and Paula Suarez, Sharon Sohngen, and Lloyd Clark. It was stated that since the time he vacated the said premises, or immediately thereafter, the said rental premises were re-let and remained leased up until at least February 9, 1980 to Linda and Bob Henderson and later to John La Cause. Defendant further denied any damage to the apartment and itemized repairs which he had performed on the premises to make them more livable upon his leaving than when he moved into the apartment, and which included sealing of small holes in the walls, complete painting of the majority of the premises, and a complete cleaning of kitchen appliances. These statements were supported in the other affidavits filed by defendant with his own. Defendant and his wife also admitted by affidavit that they owned a pet, but attested that the animal was groomed and free of fleas.

Defendant, on May 2, 1980, also filed an amended answer stating that the “NSF” check was returned as such by the bank because it was negotiated prematurely by the plaintiff and that he only stopped payment on it after the filing of the present lawsuit. The defendant at that time also filed a reconventional demand asking for return of his damage deposit, rental security, statutory damages and $5,000 in damages.

Because of the totally conflicting statements made in the affidavits filed by the two parties in the present case, the issue of the condition of the premises, as well as the issue of whether the premises were leased to other parties (after the defendant vacated the apartment but during the lease term), both of which are certainly genuine issues as to material fact, have not been disposed of. For this reason, and because any doubt in this regard is to be resolved against the granting of summary judgment and in favor of trial on the merits (as noted in Sanders v. Hercules Sheet Metal, Inc., supra), the district court decision granting a summary judgment in favor of the plaintiff is reversed, and it is ordered, adjudged and decreed that this case is hereby remanded to the trial court for trial on the merits, costs to await the final disposition of this matter.

REVERSED AND REMANDED.