text:
    R. L. WALTERS, Plaintiff Appellant-Appellee, v. Gerald THRASHER, Defendant Appellant-Appellee. Gerald THRASHER, Plaintiff Appellant-Appellee, v. R. L. WALTERS, Defendant Appellant-Appellee.
    Nos. 14053, 14054.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Horton & Jones, Coushatta, for Walters.
    Bethard & Davis, Coushatta, for Thrasher.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

R. L. Walters and Gerald Thrasher appeal a judgment rendered in these consolidated cases which litigation was spawned by a dispute over whether or not there existed a servitude of natural drainage in favor of a farm leased by Thrasher over a farm leased by Walters, and a trespass by Thrasher upon the Walters’ farm.

Thrasher, believing his farm had a servitude of drainage over the Walters’ farm, on March 8, 1979 commenced construction of a ditch 3 ft. wide and 2 ft. deep upon his leased farm at the head of a shallow lake (Ida Lake) at a point approximately 150 yards southwest of the line dividing the Thrasher and Walters farms. Thrasher continued with this ditch in a northwesterly direction across the property line and for a distance of approximately 100 yards onto the Walters farm, at which point Walters discovered the ditching activity and stopped the backhoe operator doing the work from proceeding further onto his farm.

Walters dammed the ditch on his property near the Thrasher line and sued Thrasher seeking an injunction against him from trespassing upon his farm and for damages in the nature of mental anguish, humiliation and inconvenience caused by the construction of the ditch. Thrasher answered and reconvened alleging the ditching work performed by his contractor was performed in a natural drain and consisted of cleaning out of an old ditch, and sought an injunction against Walters prohibiting him from obstructing the natural drain by maintenance of the dam and for damages caused to his farming operation by water backing over his field due to the existence of the dam. Thrasher further denied that he was a trespasser upon Walters’ farm when he constructed the ditch for the reason he had secured verbal permission from one of Walters’ lessors authorizing him to clean out the natural drain. Thrasher then filed a separate suit against Walters seeking substantially the same relief sought by him in his reconventional demand filed in the Walters’ suit.

The trial court found Thrasher’s farm was the dominant estate and Walters’ farm was the servient estate, and that the latter owed a servitude of drainage to the former at the location where the ditch was constructed by Thrasher. The trial court ordered Walters to remove the dam and cease any activity which interfered with the natural drain, and Walters was also enjoined from disturbing the ditch constructed by Thrasher. The trial court found Thrasher to be a trespasser upon Walters’ farm and enjoined him from any further activity upon the Walters’ farm and awarded Walters a judgment for $650 damages against Thrasher for the trespass. Walters and Thrasher each appeal.

Walters assigns as error the trial court’s finding that Thrasher’s farm had a servitude of drainage over his farm. Walters further complained that he should not have been ordered to remove the dam because it did not obstruct the natural drain. He further complained that the trial court was in error for prohibiting him from filling in the ditch because the ditch created a drain where none had theretofore existed, or alternatively increased the burden of the drainage servitude. Finally Walters complained that the $650 judgment awarded him for Thrasher’s trespass was inadequate to compensate him for his damages of mental anguish and inconvenience which the ditch caused him by dividing his two fields. Walters contends that before the ditch existed he could drive his tractor and attached equipment across the little swag (where the ditch was dug) from one field to the other, and after construction of the ditch he was required to take a long route upon a blacktop road in order to go from one field to the other.

Thrasher assigns as error the trial court’s failure to award him damages caused to his farming operation by water backing up from Walters’ dam which obstructed the natural drain. He further complained the trial court erred in finding him to be a trespasser and based upon this finding awarded Walters damages.

The issues presented by the assignments of error are: (1) was there a servitude of natural drainage from the Thrasher farm across the Walters farm at the location of the ditch and the dam? (2) if there was a natural drain at this location, was the court correct in ordering the dam removed? (3) was Thrasher a trespasser when he went upon the Walters’ farm and dug the 100 yard ditch? (4) if Thrasher was a trespasser did the trial court abuse its discretion in awarding Walters only $650 in damages? (5) did the trial court err in ordering Walters to leave the ditch on his farm unaltered? and (6) did the trial court err in rejecting Thrasher’s demand for damages caused to his farming operation by the action of Walters’ constructing the dam?

NATURAL DRAIN

LSA-C.C. art. 655 provides:

“An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.”

There is an abundance of evidence in the record establishing that water drains westerly and northwesterly from the Thrasher farm through the area of the Walters farm where the ditch was dug. Not only was there testimony by numerous witnesses who had actually seen the water draining through the area, but also there was a civil engineer from the Louisiana Department of Public Works who identified a drainage improvement map of the Department which had been prepared in 1962 covering the area in dispute which corroborated the testimony of Thrasher’s lay witnesses that the water drained from the Thrasher farm over the Walters farm at the site of the ditch. Charlie Kile, Walters’ former farming partner on the farm who was Walters’ witness at trial, also testified that the drainage servitude existed:

Q. Have you seen water come through this swag type natural drainage you are talking about from Ida Lake (located on Thrasher’s farm) across the Place lands? (Walters’ farm).
A. Yes, sir.
Q. Have you seen any other water from the Coates land (Thrasher’s farm) come through this swag on to the Place (Walters’ farm) lands?
A. Yes, sir.
Q. And it would fall from the Coates (Thrasher’s farm) land to the Place (Walters’ farm) land?
A. Right.
(Id. p. 108 TR.) .

The trial judge was correct in finding Walters’ farm owed to Thrasher’s farm a CC art. 655 servitude of natural drainage.

WALTERS’ DAM

LSA-C.C. art. 656 provides as follows:

“The owner of the servient estate may not do anything to .prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”

Though Thrasher commenced his ditch at the head of the very shallow Ida Lake, the evidence established that his purpose in constructing the ditch was not to drain the lake, but to generally speed the flow of water from his farm over the Walters place and into Hanna ditch, a principal drainage canal which was located a short distance west of the area wherein the ditch was dug. There was no evidence that the ditch dug by Thrasher on his farm, or the extension of it over the low swag area on the Walter®’ farm had the effect of increasing the amount of water that the Walters’ farm received from the Thrasher farm.

In the decision of Nicholson v. Holloway Planting Co., 229 So.2d 679 (La.1969), the court quoted with approval the following language of Chandler v. City of Shreveport, 169 La. 52, 124 So. 143 (1929):

“It is true that this court has repeatedly held, in the interest of agriculture, that the proprietor of an upper estate may ditch his farm or plantation for agricultural purposes, even though the incidental effect of such ditching may increase the rapidity of the flow when it reaches the lower estate. * * * In other
words, the proprietor of an upper estate may make such works as tend to accelerate and hasten the drainage of his own lands beyond the natural slow process. But he can do nothing which would tend to throw upon the lower estate the burden of receiving waters which would not otherwise drain upon it. * * Id. at 143.

Because the Walters farm was required to receive the water from the Thrasher farm and there was no evidence that the ditching activity on the Thrasher farm increased the volume of water flowing upon the Walters farm, or otherwise made the drainage servitude more burdensome, Walters had no right to construct the dam and obstruct the drainage. Pictures in the record establish that the dam was substantially higher and wider than the ditch. The effect of the dam was to obstruct the flow of the water through the natural drain. See Cole v. Mott, 351 So.2d 1326 (La.App. 2d Cir.1977), where the owner of a rice farm was enjoined from obstructing the natural drain of a soybean field. The rice farmer was ordered to remove a levee around a rice field, or alternatively to provide supplemental drainage in lieu of the natural drain being obstructed by the levee. The judgment correctly ordered Walters to remove the dam.

WAS THRASHER A TRESPASSER?

Walters had a written recorded lease on the farmland where Thrasher dug the ditch. Thrasher admitted he was well aware of the existence of the lease at the time he sent his contractor with a backhoe upon Walters’ farm and dug the ditch 3 ft. wide and 2 ft. deep. As the owner of the agriculture lease covering this property, Walters was entitled to possession of it free of any disturbance.

In the decision of Esmele v. Violet Trapping Co., 187 La. 728, 175 So. 471 (1937), the court discussed the right of the lessee against a trespasser in the following language, to-wit:

“Lease is a contract by which one party gives to another the enjoyment of a thing for a consideration. Civil Code, Arts. 2669-2674. Plaintiff’s allegation that he was lessee of this land was equivalent to saying that he had the use, the enjoyment of it, and that it had been delivered to him. Civil Code Art. 2692. A lessee who has been put in possession of a thing is, during the term of the lease, the proprietor of it. He has the legal right to use it. He is the quasi owner of it. New Orleans City Railroad Co. v. MeCloskey, 35 La. Ann. 784. If he is disturbed in his possession by a trespasser he has the right of action against such trespasser to recover damages. Civil Code, Art. 2703.” Esmele at p. 474.

Thrasher’s farm was the dominant estate and Walters’ farm was required to receive the water from it and though Thrasher could engage in activity upon his own farm which would cause the water to flow faster from it onto Walters’ farm, he had no right to enter upon Walters’ farm and perform any activity whatsoever.

As was said in the very earlier case of Sharpe v. Levert, 51 La.Ann. 1249, 26 So. 100 (1899):

“. . . There was no warrant or justification for Sharpe’s going upon Levert’s property and digging a ditch thereon through the coulee. Landry v. McCall, 3 La.Ann. 134. He was guilty of a wrong and trespass in so doing, and can predicate no right upon it. Plaintiffs say the ditch was of benefit to defendant, but a trespass cannot be justified or continued on the ground of its being beneficial to the party trespassed upon. Even benefits cannot be forced upon a person without his consent. They should be ordered to fill up said ditch and replace matters to the situation in which they were prior to the digging of the same.” Id. at 102.

See also Thibodeaux v. Landry, 351 So.2d 522 (La.App. 3d Cir.1977), wherein the Sharpe v. Levert case was cited with approval and a preliminary injunction was ordered prohibiting the owner of a dominant estate from trespassing upon the ser-vient estate for the purpose of cleaning out drainage ditches to facilitate the flow of water from the dominant estate to the ser-vient estate.

Thrasher contends that he was not guilty of trespass because he had the verbal authority from one of the co-owners of the property leased by Walters, who allegedly functioned as manager for the other three co-owners of the Walters’ property. Thrasher, however, admitted being aware that Walters had the property leased, 'and under these circumstances he therefore knew that Walters was entitled to undisturbed possession of the property, and for this reason Thrasher should not have gone upon the property with the backhoe and dug the ditch without having first sought the permission of Walters. His failure to do so results in his ditching activity being legally a trespass upon the Walters farm.

JUDGMENT PROHIBITING WALTERS FROM FILLING IN DITCH

While there is some testimony that Thrasher’s ditching activity was conducted by him at the site of an old ditch, and that all he was doing was cleaning it out, by far the great weight of the evidence establishes that the area where the ditch was constructed was nothing more than a swag through which the water from Thrasher’s farm drained naturally. If the trial court’s judgment ordering Walters to leave the ditch undisturbed is a factual finding by the trial court to the contrary, it is not supported by the evidence and is clearly wrong.

In the case of Sharpe v. Levert, supra, the owner of a dominant estate who trespassed upon the servient estate and dug a ditch in the bottom of a coulee which served as a natural drain was required to fill up the ditch:

“They should be ordered to fill up said ditch, and replace matters to the situation in which they were prior to the digging of the same.” Id. at 102.

In Thibodeaux v. Landry, supra, the court recognized that the owner of a natural servitude of drainage may not install culverts or enlarge a ditch upon the servient estate:

“. . . defendants have not proved at this juncture that they have more than a natural servitude of drain; therefore they are not entitled to install culverts on plaintiff’s property or to enlarge the ditch.” Id. at 525.

While Thrasher was entitled to the natural drain, he was not entitled to construct a ditch and Walters is not required to leave the ditch constructed by Thrasher intact. He is entitled to fill up the ditch and place the area where it was constructed in identically the same condition it was just prior to the time Thrasher constructed the ditch upon it. Walters must, however, in connection with his activities of filling in the ditch, be certain that none of his dirt work has the effect of in any way obstructing the natural drain. We therefore conclude that the portion of the trial court’s judgment should be amended to omit that portion of it which requires Walters to leave the ditch undisturbed, but the judgment requiring him to remove his dam and prohibiting him from otherwise obstructing the natural drainage should remain unchanged.

DAMAGES

Walters contends that the trial court’s award for damages in the amount of $650 was inadequate and that it should be increased to $5,000 in order to compensate him adequately for his mental anguish and inconvenience. The evidence established that the natural drain upon which the ditch was dug is impassable except during the dry seasons of the year. The area where the ditch was constructed was located in a relatively remote area and divided two fields where Walters planted crops, and was used by Walters for the purpose of going from one field to the other. Walters’ only use of the area was to cross between the two fields with his farming equipment when there was farming going on in his fields.

Thrasher testified he had earlier received verbal permission from one of the co-owners of the Walters’ farm to construct the ditch in the natural drain. This testimony was corroborated by a written ac-knowledgement of the co-owner (he was in the hospital at time of trial, and later died) in authentic form which acknowledged the servitude and the verbal permission given to Thrasher to dig the ditch. Walters objected to the admissibility of the document. as hearsay but we conclude it was admissible as a statement against interest and as such an exception to the hearsay rule. See Campbell v. American Home Assurance Co., 260 La. 1047, 258 So.2d 81 (1972). The backhoe operator whom Thrasher employed to dig the ditch stopped work immediately upon being requested to do so by Walters and there was no further ditching activity. These circumstances show some good faith on the part of Thrasher and tend to soften his status as a bad faith trespasser.

The construction of the 100 yard long, 3 ft. wide, 2 ft. deep ditch, under the circumstances set forth hereinabove, should not have created any substantial mental anguish on the part of Walters. Thrasher testified that he offered to install a culvert and had a bulldozer with which to do the work in order to facilitate Walters’ crossing of the ditch with his equipment, and there is no testimony in the record contradicting Thrasher’s testimony on this point. There is also evidence in the record to establish the entire ditch could be filled in with the same backhoe and the same dirt that came out of it within three to five hours at a cost of $45 per hour. There would remain some slight depression in the ditch because the dirt taken from it would not be quite enough to fill it up, but such a depression should not preclude a farm tractor and other equipment from crossing over this ditch when the work was done. Assuming it takes five hours to fill in the entire ditch, it would cost $225 which would result in the filling up of that portion of the ditch on Walters’ property costing less than $150. For these reasons it would appear that the inconvenience caused Walters by the ditch can be cured for less than $150 and probably could have been cured earlier if Walters had accepted Thrasher’s offer of the culvert. Assuming the cost of the cure of inconvenience is $150, the trial court’s judgment of $650 leaves $500 available to compensate Walters for his mental anguish.

Walters contends the following trespass cases require an increase in the amount of the damage award:

(1) Scarbrock v. Fowler, 317 So.2d 285 (La.App. 3d Cir.1975), wherein the court affirmed a $2,000 mental anguish award and a $12.00 property damage award; (2) Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir.1965), wherein plaintiff was awarded $3,500 for the cost of restoring damaged property and $3,000 for mental anguish;
(3) Campbell v. Gray, 294 So.2d 841 (La.App. 2d Cir.1974), wherein plaintiff was awarded $500 for actual damage and $1,500 for mental anguish;
(4) Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2d Cir.1975), wherein plaintiff was awarded $1,500 for actual damage and $3,500 for mental anguish.
In the assessment of general damages: “. . . much discretion must be left to the [trial] judge . . ” LSA-C.C. art. 1934(3).

This code article was construed in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), where the court explained the function of the appellate court in reviewing the damage award to be:

“. . . whether the judge . has abused its discretion in fixing the award.” Gaspard at 158.

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), the court pointed out that before an appellate court can change an award made by the trial judge the record must clearly reveal that the trier of fact abused his discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979) reiterates the Coco rule and states:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive (citations omitted) or insufficient.” Reck at 501.

The role of prior awards in previous cases in the initial determination of whether there is an abuse of discretion is limited by Reck as follows:

“In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function if indeed the facts and circumstances of the prior awards are closely similar to the ■ present, [our emphasis].
The prior awards may serve as an aid in this determination [i. e., the initial determination or excessiveness or insufficiency] only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries . . . ” Reck at 501.

In Scarbrock v. Fowler, supra, there is no indication in the opinion that the defendant assigned as error the $2,000 general damage award. The opinion reflects that the defendant operated a bulldozer over some 15 acres of plaintiff’s property and destroyed two-thirds of a fence along a 7 acre tract and numerous trees.

In Hayward v. Carraway, supra, the defendants trespassed in plaintiff’s antebellum home which was constructed in 1841 on three separate occasions. They broke out numerous windows, destroyed mantels on two fireplaces, damaged stairway ballisters, window shutters, and the roof. The plaintiff, an elderly lady, was deeply attached to this antebellum home and had spent some 15 years of her life and $70,000 in refurbishing it.

In Campbell v. Gray, supra, the defendant cut a deep ditch for a pipeline across the lawn of plaintiff’s residence.

In Turner v. Southern Excavation, Inc., supra, the defendant trespassed upon plaintiff’s lot for some several months over her continuing objection and destroyed numerous fruit and flowering trees, all of esthetic value.

Prom the facts given above taken from the cases cited by Walters, it is apparent that all of the cases are substantially dissimilar from the present case and none of them fits the Reck test that:

“. . . the facts and circumstances of the prior awards are closely similar to the present.” Id. at 501.

These cases cannot be considered as establishing an abuse of the trial court’s great discretion in the damage award here made.

The trial court’s award of $650 for the construction of the 100 yard ditch in the low swag drain area between two agricultural fields in a relatively remote area by a trespasser not guilty of gross bad faith cannot be considered as an abuse of discretion within the guidelines of Coco and Reck, supra, to justify our increasing the award.

The record contains no evidence of damages sustained by Thrasher as result of the construction of the dam and for this reason the trial court was correct in rejecting his claim for damages.

The trial court judgment is AMENDED to delete the provision enjoining R. L. Walters from filling in the ditch constructed on his farm by Gerald Thrasher, and as AMENDED is AFFIRMED.

All costs on appeal are assessed equally to R. L. Walters and Gerald Thrasher.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Joseph W. BARHAM, Plaintiff-Appellee, v. DEPARTMENT OF HIGHWAYS (a/k/a Transportation and Development Department, Division of Administration), Defendant-Appellant.
    No. 14059.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Bernard L. Malone, Jr., and Bryan Miller, Baton Rouge, for defendant-appellant, Dept, of Highways.
    Coenen & Berry, by James W. Berry, Rayville, for plaintiff-appellee.
    Cotton, Bolton, Roberts & Hoychick, by W. D. Cotton, Rayville, for third party defendant-appellee, William L. Calhoun.
    William R. Coenen, Jr., Rayville, for third party defendant-appellee, Daisy S. Ferguson.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In a suit to establish boundary filed by a landowner whose property is contiguous to property of the State, the State’s third party demands against its vendors were dismissed on an exception of no cause of action and the State appeals. We affirm.

From its vendors in 1953-54 the State acquired two acres in section 33, the north line of which is the section line between section 28 and section 33, T17N, R7E. The boundary action plaintiff’s south line is the same section line.

The boundary action plaintiff alleged that the State was owner of the land in section 33 by the identical description by which the State acquired from its vendors, that the common boundary had never been fixed, and sought to have the boundary fixed according to law.

In its third party demand, the State alleged that it had acquired its property by warranty deed with full subrogation from the third party defendants and sought a third party judgment “. . . for any loss resulting from an adverse decision in the boundary dispute filed ... by plaintiff.”

The boundary action plaintiff alleges that he owns lands in section 28 and does not claim any land in section 33. The third party defendants warranted no lands in section 28. There is no disturbance of the State’s peaceable possession of its property in section 33, in law or in fact, even threatened by the boundary action. CC Arts. 2476, 2500, 2517.

If the section line is further south than the State supposes, it is nonetheless the section line. The third party defendant vendors did not warrant the location of the section line and did not purport to sell to the State any land north of the section line.

It is true that the third party demand under CCP 1111 is broader than the call in warranty. These third party defendants, however, are not warrantors of the location of the section line and are not liable to the State for any part of the principal demand, which is simply to locate and fix the section line as the common boundary between the principal plaintiff and defendant.

The State contends that it should have been allowed to amend its third party demands before these demands were dismissed. CCP 934. The State has not suggested, however, how the third party demand could be amended to remove the grounds for the exception of no cause of action and we cannot imagine any in the light of the allegations of the principal demand. If the grounds . . . cannot be removed . . . the action shall be dismissed. CCP 934.

At appellant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

text:
    Ginger BRIDWELL, Plaintiff-Appellee, v. Opal Orene Gordon BRIDWELL, Defendant-Appellant.
    No. 14060.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    Hudson, Potts & Bernstein, by James A. Rountree, Monroe, for defendant-appellant.
    S. Patrick Phillips, Bossier City, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

This litigation was commenced in 1976 by Ginger Bridwell, beneficiary of The Ginger Bridwell Trust, seeking an accounting by the trustee, her mother Mrs. Opal Orene Gordon Bridwell, for trust funds, consisting of the proceeds of a sale of real estate in which the trust owned a one-fourth interest, subject to the usufruct of the mother. After extensive and prolonged proceedings •in which the mother-trustee denied accountability for the. funds primarily on the basis that she retained the usufruct of the funds, judgment was rendered in 1979 against Mrs. Bridwell for $21,987.63, together with 7V2 percent per annum interest. The mother-trustee appealed.

The appeal raises issues of res judicata, renunciation of the usufruct, duties of the trustee, and the amount owed to the trust by Mrs. Bridwell, who was removed as trustee during the course of the litigation. Facts

Mr. Bridwell died in 1970 leaving plaintiff and a brother, Kenneth, as his sole heirs, and defendant as his surviving spouse in community. By judgment of possession, the widow and heirs were recognized as the owners of the succession property in the proportions of one-half to Mrs. Bridwell, one-fourth to Kenneth, and one-fourth to Ginger, with the children’s interest being subject to their mother’s Civil Code Article 916 usufruct. The principal asset of the succession was a tract of land.

In 1971, at the suggestion of an attorney, and apparently because of Ginger’s mental or health problems, Ginger created an inter vivos trust with her mother as trustee. Plaintiff’s interest in the land was conveyed by her to the trust. Plaintiff was the principal and income beneficiary of the trust.

In 1973 defendant, individually • and as trustee of The Ginger Bridwell Trust, joined by plaintiff and her brother, sold the tract of land for $175,000. Three checks were issued by the purchaser. Plaintiff’s brother received a check for one-fourth of the consideration. Mrs. Bridwell received a check for her one-half of the consideration. The third check for one-fourth of the consideration, less some unexplained deductions, was made payable to Mrs. Bridwell as Trustee of The Ginger Bridwell Trust. After having the bank issue cashier’s checks in payment of a doctor bill and another bill owed for Ginger’s account, Mrs. Bridwell deposited the balance of the proceeds in an account opened in her name as trustee. Over the next several months the account was substantially depleted by checks written by Mrs. Bridwell as trustee and in 1975 only a few dollars remained in the account.

In January 1976 Ginger Bridwell initiated a summary proceeding for an accounting in accordance with the Trust Code, LSA — R.S. 9:2088, 2221, and 2231. On April 23, 1976 a judgment was signed ordering an accounting. Subsequently, a letter from the Jones-boro Federal Savings & Loan Association showing that Mrs. Bridwell had on deposit an amount at least equal to $43,750 at IV2 percent per annum interest was filed as an accounting. In September 1976 plaintiff filed another petition seeking an accounting for the income received from trust funds, for payment to plaintiff of the total income as shown by the accounting, for termination of the trust and delivery of the trust assets to plaintiff, and, alternatively, for removal of Mrs. Bridwell as trustee. After a hearing in February 1977, a transcript of which is not in the record on appeal, the trial court rendered reasons for decision in which it noted that the sole question was who was entitled to the income from the $43,750 in the trust and in which it held that Mrs. Bridwell renounced her usufruct insofar as it pertained to the proceeds of the sale and that plaintiff was entitled to receive the income from the funds held in trust.

Another trial was held on June 27, 1977 and on that date judgment was rendered, and signed on June 30, ordering defendant to render a complete accounting showing the total amount and location of property belonging to the trust, together with all income received from the trust, and all sums paid to Ginger Bridwell from the trust. The judgment further removed Mrs. Bridwell as trustee of the trust and named a successor trustee. The judgment further ordered that Mrs. Bridwell deliver and pay to the successor trustee all of the property belonging to the trust on or before a certain date.

Mrs. Bridwell failed to comply with the judgment and contempt proceedings were had resulting in her incarceration. On July 12, 1978 an accounting was filed by Mrs. Bridwell showing substantial expenditures to and on behalf of Ginger and showing a balance of the trust represented by cash of $16,749.37. On October 24, 1978 Mrs. Brid-well paid that amount to Effie Haga, who had since been named successor trustee of the trust.

On October 30, 1978 Ginger Bridwell filed a petition to traverse the accounting filed by Mrs. Bridwell, alleging that the amount to be accounted for was $65,325.90. Mrs. Bridwell filed a revised accounting, taking the position that the part of the proceeds to be accounted for was the naked owner’s present value as of the date of the sale, or $14,875.16, and that Mrs. Bridwell had paid more than that amount to or on behalf of Ginger and owed nothing.

After trial the district court on June 15, 1979 rendered written reasons for decision reaffirming its previous holding that the usufruct had been renounced, finding that defendant should account for the $43,750 representing one-fourth of the sales price of the property, finding that defendant had paid $5,013 to or for the beneficiary, leaving a balance of $38,737. Giving defendant credit for the $16,749.37 paid, the trial court rendered judgment for the balance of $21,-987.63. The trial court further found that since the record showed the funds were earning interest at the rate of 1lh percent per annum the trust was entitled to this interest as trust income. The judgment was for $21,987.63, together with interest at the rate of llh percent per annum on $38,-737 from January 81, 1973, the date of the sale, to October 24, 1978 when the payment was made, and together with Ph percent per annum interest on $21,987.63 from that date until paid.

Issues Raised on Appeal

Appellant specifies that the trial court erred (1) in concluding on the basis of circumstantial evidence that Mrs. Bridwell’s legal usufruct which burdened the inheritance of Ginger Bridwell had terminated; (2) in holding that any debt which Mrs. Bridwell may owe Ginger Bridwell bore interest at a rate in excess of the 7 percent per annum legal rate.

Appellee filed an exception of res judica-ta in this court contending that the issue of renunciation of the usufruct was determined by the district court’s' judgment of June 30, 1977, from which no timely appeal was taken, barring further consideration of that issue by this court on the appeal from the July 11, 1979 judgment.

Peremptory Exception of Res Judicata

A peremptory exception may be considered when filed for the first time in the appellate court if proof of the ground of the exception appears of record. LSA-C.C.P. Art. 2163. The earlier judgment was rendered pursuant to plaintiff’s petition for an accounting of the income of the trust, for payment of the income to her, for termination of the trust, for removal of the trustee, and delivery of the trust property to plaintiff. No answer was filed to the petition. The record on appeal does not contain a transcript of the proceedings held prior to rendition of judgment. The court’s written reasons for decision reflect that the court considered the issue of renunciation of usu-fruct and held the usufruct was renounced, but the judgment actually signed does not necessarily and conclusively reflect an adjudication of that issue. The judgment orders an accounting but does not specify an amount or nature of the property to be accounted for and orders payment of the trust funds to the successor trustee but does not state an amount or nature of the property to be transferred.

Because proof of the ground of the exception does not clearly appear from the record on appeal and also because of this court’s determination on the merits that the district court was essentially correct in finding the usufruct terminated, we exercise our discretion not to consider the peremptory exception of res judicata, and pass to a discussion of the merits of the case. Capital Loans, Inc. v. Stassi, 195 So.2d 670 (La. App. 1st Cir. 1967), writ refused 250 La. 889, 199 So.2d 912 (1967).

Renunciation of Usufruct

Appellant contends that there was no express renunciation of her usufruct by Mrs. Bridwell as required by LSA-C.C. Art. 624 which provided in pertinent part:

“In all cases the renunciation of the usufructuary can not be inferred from circumstances; it must be express.”

Appellant contends that since the usufruct was not expressly renounced and in the absence of any agreement as to the effect of the sale on the usufruct, under Succession of Gabriel, 344 So.2d 24 (La.App. 4th Cir. 1977), writ denied 346 So.2d 217 (La.1977), Mrs. Bridwell’s usufruct attached to that part of the proceeds equal to the present value of the property subject to the usufruct, which was $26,108.20, with the balance of $14,875.16 being due to the trust free and clear of the usufruct. Appellant further contends that Mrs. Bridwell has' paid more than that amount to or on behalf of Ginger and owes nothing.

Ordinarily, an express renunciation of a usufruct should be evidenced by words to that effect either written or spoken. See Yiannopoulas, Civil Law Treatise Vol. 3, page 283, footnote 66. Compare LSA-C.C. Art. 1811. Although precise and ceremonial language need not be employed, unequivocal language understood by the owner is required. See LSA-C.C. Art. 1812. In this case, however, the usufructuary is Mrs. Bridwell and the naked owner is Mrs. Bridwell as trustee, with her interest in each capacity being directly in conflict. Necessarily then, the issue of whether she renounced her usufruct must be determined by her actions, and not her words communicated from herself in one capacity to herself in another capacity.

We hold that by-selling the property jointly in her individual capacity and as trustee, by consenting to the payment of the entire proceeds attributable to the trust’s one-fourth interest to the trustee of the trust, and by depositing the money to the account of the trustee, Mrs. Bridwell expressly renounced her usufruct of the proceeds of the sale. There could hardly be a more express renunciation of the usufruct of money than by payment and delivery of the money by the usufructuary to the naked owner. In Bauman v. George, 154 La. 680, 98 So. 85 (1923) the court held that a usufructuary waived and renounced her usufruct over the proceeds of a sale where she petitioned for partition of the property by licitation and for payment of the proceeds to the owners' in proportion to their respective interests. Compare a manual gift of money, LSA-C.C. Art. 1539, which is effected by delivery and is not subject to other formality. See Allen v. Allen, 301 So.2d 417 (La.App. 2d Cir. 1974), where a manual gift of money was found even though the donor retained dominion over a bank account in the donor’s capacity as a fiduciary for the donee, similar to Mrs. Bridwell’s dominion here as trustee.

This conclusion is supported by Mrs. Brid-well’s concession that she renounced the usufruct of the proceeds paid to her son even though there is no evidence of words, written or spoken, expressly renouncing the usufruct of that money. This conclusion is also consistent with Mrs. Bridwell’s duties as trustee of The Ginger Bridwell Trust. Any conclusion to the contrary would raise serious questions of a breach of duty owed by the trustee to the beneficiary of the trust in joining in a sale of the property, thereby converting a nonconsumable (land) which must be preserved (formerly a perfect usufruct) to a consumable (money) of which the usufructuary becomes the owner (formerly an imperfect usufruct), with power to dispose of the money to the detriment of the trust and its beneficiary.

The usufruct of the funds having been renounced, and the funds having been delivered to the trustee, the trustee must account to the trust and its beneficiary for the funds and the income or profit the funds would have produced.

Amount of the Judgment

The trust’s share of the sales price was $43,750 for which Mrs. Bridwell as trustee must account. The trial court correctly found from the evidence that $5,013 was spent for the beneficiary’s account shortly after the proceeds went into the trust account, leaving a balance to be accounted for of $38,737. On October 24, 1978, after having been removed as trustee on June 30, 1977, and after having been ordered to pay the remaining funds belonging to the trust to the successor trustee appointed by the court, Mrs. Bridwell paid the successor trustee $16,749.37, leaving a balance of $21,-987.63 to be accounted for according to the trial court’s calculation. Finding that Mrs. Bridwell had funds on deposit actually earning 7V2 percent per annum interest, the trial court held the trust was entitled to such interest as trust income. Judgment was rendered against Mrs. Bridwell in favor of the trust for $21,987.63, plus 7V2 percent interest on $38,737 from January 31,1973 to October 24, 1978, plus 7Vr¿ percent interest on the total amount due from October 24, .1978 until paid.

The trust instrument provided' that income from the trust assets should be paid to the beneficiary annually. A trustee shall administer the trust solely in the interest of the beneficiary. LSA-R.S. 9:2082. A trustee shall exercise such skill and care as a man of ordinary prudence would exercise in dealing with his own property. LSA-R.S. 9:2090. A trustee is under a duty to take reasonable steps to take, keep control of, and preserve the trust property. LSA-R.S. 9:2091. A trustee shall keep the trust property separate from his individual property. LSA-R.S. 9:2094. A trustee can make a general deposit of trust money in a bank, but shall properly earmark the deposit as a deposit of trust funds by him as trustee. LSA-R.S. 9:2095. In investing, reinvesting, and managing trust property, a trustee shall exercise such skill and care as a man of ordinary prudence, discretion, and intelligence would exercise in the management of his own affairs, considering the probable income as well as the probable safety of his capital. LSA-R.S. 9:2127. A violation by a trustee of a duty he owes to a beneficiary as trustee is a breach of trust. LSA-R.S. 9:2081. If a trustee commits a breach of trust he shall be chargeable with a loss of the trust estate resulting from the breach, any profit made by him through the breach of trust, and any profit that would have accrued to the trust estate if there had been no breach of trust. LSA-R.S. 9:2201.

The trust bank account into which the sale proceeds were deposited was rapidly depleted by checks written on the account by Mrs. Bridwell as trustee. She has accounted for only a small part of the expenditures as having been for the benefit of the beneficiary. The evidence established that for some period of time Mrs. Bridwell had on deposit in her own name in a building and loan association, funds at least equal in amount to the funds belonging to or due to the trust, bearing interest at 7Va percent per annum. In addition to the principal amount due the trust, Mrs. Bridwell is liable for the income that would have accrued to the trust if the funds of the trust had been prudently invested. The trial court correctly determined the profit or income lost by the trust due to Mrs. Brid-well’s breach of trust on the basis of the interest actually being earned on funds held by Mrs. Bridwell as shown by her first accounting filed pursuant to court order. The trust was entitled to 7!/2 percent interest on the principal balance of the trust funds, $38,737, to the date of Mrs. Brid-well’s removal as trustee, June 30, 1977.

After that date, Mrs. Bridwell’s position was that of a debtor of the trust, indebted for an amount equal to the value of the trust funds and loss of profit during her tenure as trustee ($38,737, plus 1lh percent interest on that amount to June 30, 1977). The only damages due for delay in the performance of an obligation to pay money is interest. LSA-G.C. Art. 1935. The judgment for the amount due by the trustee to the trust should bear interest at the legal rate of 7 percent from the date the debt became due, that is, the date of Mrs. Bridwell’s removal as trustee. LSA-C.C. Art. 1938. Mrs. Bridwell is entitled to a credit for the $16,749.37 paid on October 24, 1978. The judgment will be amended accordingly.

The judgment is amended and recast as follows:

It is ordered, ádjudged, and decreed that there be judgment herein in favor of plaintiff and against defendant, Opal Orene Gordon Bridwell, ordering defendant to pay to Effie Haga, successor trustee of The Ginger Bridwell Trust, the full sum of $38,737 principal, plus loss of profit or income equal to l}k percent per annum interest on the principal amount from January 31,1973 to June 30,1977, together with legal interest on said total amount of principal and interest at the rate of 7 percent per annum from June 30, 1977 to October 24, 1978, less a credit of $16,749.37 paid on that date applied first to accrued legal interest and then to the principal amount, together with legal interest on the balance after that date at the rate of 7 percent per annum from October 24, 1978 until paid, together with all costs of this proceeding, including the cost of appeal.

As amended and recast, the judgment is affirmed.

      . The events giving rise to this suit took place prior to revision of the articles of the Civil Code relative to personal servitudes, accomplished by the enactment of Act 103 of 1976, effective January 1, 1977. As revised, LSA-C.C. Art. 626 now provides that a usufruct terminates by an “express written renunciation.”

      . As revised (see footnote 1) LSA-C.C. Art. 616 now provides:
      “When property subject to usufruct is sold by agreement between the usufructuary and the naked owner, the usufruct attaches to the proceeds of the sale unless the parties provide otherwise.”
      LSA-C.C. Art. 618 provides that in cases governed by Article 616,
      “. . . the naked owner may demand, within one year from receipt of the proceeds by the usufructuary, that the money be safely invested subject to the right of the usufructu-ary. . . .”


text:
    Jerry E. SEYMORE, Plaintiff-Appellant, v. LOUISIANA SOIL STABILIZATION COMPANY, INC., Defendant-Appellee.
    No. 14066.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Glen H. Smith, Shreveport, for plaintiff-appellant.
    Thomas & Burchett by Dewey E. Bur-chett, Jr. and L. H. Padgett, Jr., Bossier City, for defendant-appellant.
    Before PRICE, MARVIN, and JONES, JJ.
   MARVIN, Judge.

From a judgment awarding a homeowner damages because of the failure of defendant’s attempts to stabilize the soil under the home as defendant had guaranteed to do in a written contract, the homeowner appeals, seeking additional damages for his anxiety and inconvenience and for his attorney fees.

Defendant also appealed devolutively, but urges simply that the damages were correctly assessed and that we should affirm the judgment.

The sole issue is whether anxiety damage and attorney fees should be allowed under the circumstances of this case. We affirm.

For $500, defendant contracted in October 1974 to stabilize the soil under the home which plaintiff had purchased in May 1974. Before plaintiff’s purchase he was aware of cracks in the interior and exterior of the home. Defendant’s contract — a printed form prepared by defendant — expressly provided that defendant would apply lime slurry to the soil and that defendant would

“completely stabilize the affected area . and will guarantee soil stabilization after a nine (9) months period.
“. . . [T]he entire contract is contained herein and . . . there are no other covenants, warranties, promises or agreements, express or implied except as herein set forth.”'

Defendants initially applied the slurry in November 1974. In February 1975 plaintiff sued his vendor in redhibition, alleging that he had expended $500 to stabilize the soil, that Louisiana Soil Stabilization Company, Inc. had advised him that this treatment might not be sufficient to correct the defects, and that the entire house might have to be “jacked up” (underpinned by additional footings) at an additional cost.

Plaintiff sought recission of the sale, return of the purchase price, the cost of underpinning and lime slurry treatments ($2,500), the cost of repairing the cracks ($750), and attorney fees. CC 2545. Plaintiff’s redhibition suit was settled and dismissed when plaintiff’s vendor paid plaintiff the $500 plaintiff had expended for the stabilization treatment. In September 1975 (or more than nine months after defendant’s initial treatment) plaintiff paid $524 for cosmetic repair to the interior of the home.

During dry spells of weather which followed, the soil contracted, causing the foundation of the home to shift and the cracks to recur. On three occasions during a three year period preceding the filing of this suit in November 1978, defendant unsuccessfully attempted further stabilization by applying more lime slurry. Where good faith performance of a contract is attempted, the damages for the failure of the result are limited to those damages within the contemplation of the parties at the time they contracted. CC Art. 1934(1). Lawless v. Gulf South Title Insurance Agency, Inc., 329 So.2d 879 (La.App. 1st Cir. 1976), writ refused.

Plaintiff contends that this contract has for its object the convenience of the homeowner so as to entitle him to damages for the continued inconvenience of residing in a home with a shifting foundation, citing CC 1934(3), Whitener v. Clark, 356 So.2d 1094, (La.App. 2d Cir. 1978), writs refused, and Jack v. Henry, 128 So.2d 62 (La.App. 1st Cir. 1961), where damages for anxiety and inconvenience were allowed. Plaintiff also argues .that defendant should be deemed to have contemplated that defendant’s failure to fulfill its guarantee would cause anxiety and inconvenience to plaintiff, especially when defendant knew that plaintiff relied upon the guarantee to settle and dismiss his redhibition claims against his vendor. We cannot agree.

Plaintiff knew before he contracted with defendant that there was a possibility that the lime slurry treatment might not be successful and that some underpinning of the foundation might be necessary to achieve maximum stability. Plaintiff’s anxiety and inconvenience were caused legally and factually by things which existed long before defendant made its guarantee. The principal object of this contract was the defendant’s undertaking to correct an already defective condition (CC 1934) which was causing plaintiff anxiety and inconvenience. These circumstances are more akin to the repair of a defective automobile, as in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), than to creation or building of a distinctive and individually designed residence as in Whitener, supra, or as in Jack, supra. See also U-Test-M of Louisiana, Inc. v. Martin, 305 So.2d 557 (La.App. 2d Cir. 1974).

Redhibition is the avoidance of the sale of a thing because of some defect in the thing sold. CC 2520. The undertaking of this defendant was not a sale of a thing and defendant is not responsible for redhi-bition-type damages.

Anxiety or inconvenience damage and attorney fees are not allowed. We AFFIRM the judgment at the cost of plaintiff-appellant.


author: PRICE, Judge.

text:
    Loretta Ray RIVERS, Plaintiff-Appellant, v. Jack Looney RIVERS, Defendant-Appellee.
    No. 14067.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Paul Henry Kidd, Monroe, and Ann Wo-olhandler and Michael G. Collins, New Orleans, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs, Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiff filed suit against her husband to annul a community property settlement agreement along with a separate claim to make past due alimony executory. The trial court rejected both demands and she appeals. We reverse the judgment denying plaintiff’s demand for past due alimony and otherwise affirm.

Mr. and Mrs. Rivers separated in the latter part of 1971. They had agreed to obtain a legal separation and community property settlement on an amicable basis and decided to retain a single law firm to handle their affairs. The law firm chosen had previously represented Mr. Rivers in unrelated matters and the attorney contacted by the couple was initially reluctant to represent both parties. However, after consulting other members of the firm, he agreed to represent them with the stipulation that he would not be an advocate for either party but would simply help them draft the settlement agreement reached between themselves and advise them of its tax consequences. At some time later it was also agreed that the firm would file suit for a separation on behalf of Mrs. Rivers. The separation was ultimately granted on December 20,1971, and the community property settlement agreement was executed the same day.

In 1977 Mr. Rivers filed suit for a final divorce. Shortly thereafter Mrs. Rivers hired independent counsel and filed a separate suit seeking (1) annulment of the community property settlement agreement on the grounds that her husband had defrauded her by misrepresenting the value of various community assets; (2) annulment of the judgment of separation, alleging it was obtained by collusion; and (3) an alternative award of damages against the law firm which represented her and Mr. Rivers during the negotiation of the community property settlement and the 1971 separation suit. These two suits were consolidated for trial and judgment was rendered granting the divorce in favor of Mr. Rivers and rejecting all Mrs. Rivers’ demands. She appeals from the portion of this judgment which denied nullification of the community property settlement agreement. She also appeals a judgment refusing to make past due alimony executory.

Mr. and Mrs. Rivers had tentatively agreed to the basic terms of a community property settlement before the initial consultation with their attorney. Since Mrs. Rivers had never taken an active part in her husband’s business affairs, one of their primary goals was to divide the community in such a way as to allow Mr. Rivers to retain all the community’s business assets. It was also the couple’s intention to agree on a settlement which would be non-taxable to both.

Some time after the couple contacted the attorney, they began an inventory of the community assets. With the assistance of an accountant the couple assigned a value to each of the assets and a balance sheet was prepared by Mr. Rivers which proposed an equal division of the assets according to these assigned values. None of the assets were independently appraised.

At the time the couple was negotiating a settlement, the primary business asset of the community was a Vfc interest in a corporation which operated a Ford automobile dealership. This corporation was wholly owned by Mr. Rivers, his brother, and one other individual (although Mr. Rivers owned Vs of the stock, V2 of his interest was acquired from his parents by inheritance and donation). Mr. Rivers was apparently the managing partner in this venture and he and his brother were actively negotiating to buy out the interest of the third individual. No dividends had ever been paid on the corporation’s stock since all the profits from the business were paid out in salaries.

The couple met with their attorney on several occasions during the negotiations. On one such occasion, the ownership of the Ford dealership stock and the basic problems regarding minority interest in closely held corporations were discussed. The attorney advised Mrs. Rivers that the dealership stock would probably never produce any income to her since she was not actively engaged in the business and the profits would be paid out in salaries rather than dividends. He also advised her that the market for sale of the stock would be limited due to the small number of stockholders and the reluctance of outsiders to purchase minority shares in such a closely held corporation.

The agreement ultimately reached divided the property in basic accordance with the balance sheet prepared by Mr. Rivers. Mr. Rivers retained all the business assets, including the Ford dealership stock and assumed liability for all the community debts. He also retained a house on Lake D’Arbone. Mrs. Rivers kept the family home in Monroe and all its furnishings, all the cash on deposit in the couple’s various bank accounts, an automobile, and another residential lot located in Monroe. She also relinquished her dower rights in immovable property located in Arkansas, which Mr. Rivers had inherited from his father. The agreement also included a provision stating the parties agreed that the values of the property received by each of them was equal.

At trial the balance sheet prepared by Mr. Rivers and used by the parties in negotiating the settlement was introduced into evidence. This balance sheet listed the value of the community owned Ford dealership stock at $46,500. Mr. Rivers testified this figure represented the cost of the stock when it was acquired in 1964. However, Mrs. Rivers introduced into evidence two financial statements prepared by Mr. Rivers shortly before the settlement agreement was reached which listed substantially higher values for the community owned stock. One prepared in August 1971 valued the. stock at approximately $86,000, and the other prepared in November 1971 valued the stock at approximately $84,000. Although both of these financial statements were in the files of the law firm representing the couple, Mrs. Rivers testified she never saw them until the onset of this litigation in 1977.

Mrs. Rivers also testified that both her husband and their attorney had informed her that she had no rights in Mr. Rivers’ Arkansas property. She stated that due to this misinformation she did not believe she was in fact relinquishing anything by giving up her rights in the property and consequently no consideration was given her for this relinquishment.

The duty a husband owes his wife in dividing community property is set forth in Pitre v. Pitre, 247 La. 594, 172 So.2d 693 (1965):

Since under the Louisiana community property system the husband during the marriage has the management and control of the community property, one-half of which belongs to the wife, he as the “managing partner” is in a position to know relevant facts concerning this property which his wife does not know. Thus when the marriage is dissolved and the community property is to be partitioned, he stands in a fiduciary relationship toward his wife and owes to her the duty of full disclosure of the community property and its value, and must not conceal or misrepresent any material fact upon which she has a right to rely and upon which she might rely.

Mrs. Rivers contends the trial court erred in failing to find that Mr. Rivers breached his fiduciary duty in each of the following respects: (1) misrepresenting the value of the Ford dealership stock; (2) failing to fully disclose Mrs. Rivers’ dower rights in the Arkansas property; and (3) failing to inform her of the community interest in the appreciation in value of his separately owned Ford dealership stock.

Regarding Mrs. Rivers’ first contention, we note that there is no evidence in the record regarding the “true value” of the community owned Ford dealership stock. The thrust of her argument is that he mislead her by representing its value at his cost because the business had prospered since he obtained the stock and it would have necessarily been worth more at the time of their separation, as evidenced by the financial statements where he valued the stock at almost twice his cost. In addition she contends that the lower valuation of this stock to reflect a minority shareholder’s interest was improper.

As the trial court pointed out, Mrs. Rivers is a woman with a higher than average knowledge of business and finance and had a general understanding of her husband’s business affairs. She obtained her Bachelor’s Degree in Accounting with an overall grade average of 3.9. A few years after her separation from Mr. Rivers, she returned to school and obtained her Master’s Degree in Business Administration with a perfect 4.0 average. She subsequently passed the CPA exam on her first try..

At the time of the separation Mrs. Rivers had a clear understanding of the operating structure of closely held corporations and the problems surrounding minority interest in them. She knew that Mr. Rivers and his brother were planning to purchase an additional Vz of the corporation’s stock, thereby gaining complete control of the company management. She also acknowledged that since her husband had been active in the actual management of the corporation, she agreed to work out a settlement whereby he could keep the business assets, indicating that she realized these assets would be worth more to her husband than they would be to her.

Because of the peculiar circumstances involved, the “true value” of this stock would necessarily vary depending on its owner’s relative position in the corporation. While it may have been true that retaining all the community stock resulted in the value to Mr. Rivers being well in excess of his original cost, her retention of a V12 interest in the corporation would have rendered that stock almost valueless. Considering all these factors, we do not find Mr. Rivers’ valuation of the dealership stock to be a breach of his fiduciary duty.

Mrs. Rivers’ second contention is also without merit. Although the balance sheet used in negotiating the settlement did not list her dower rights in'her husband’s Arkansas property, the final agreement contained the following language:

WHEREAS, Appearer, Jack Looney Rivers, is the owner of certain real estate located in the State of Arkansas, acquired by him before his marriage, but in which real estate Appearer, Loretta Ray Rivers, has certain dower and/or homestead rights under the laws of that state; .
For and in consideration of the agreements and promises herein contained, Loretta Ray Rivers, wife of Jack Looney Rivers, does hereby devise, release, convey and transfer to the said Jack Looney Rivers, and to his heirs and assigns, all of her right, title, interest, equity and estate in and to any and all real property which she may own in the State of Arkansas or may hereafter acquire in the State of Arkansas, and specifically, without in any manner diminishing the grant and conveyance aforesaid, release and relinquish to him, his heirs and assigns, all of her right or possibility of dower and homestead in and to any and all of his said lands in the State of Arkansas which he now owns or may hereafter acquire. It is understood and agreed: That from and after the execution of this agreement, the said Jack Looney Rivers may sell, assign, mortgage, lease, or otherwise act with reference to the said lands in the State of Arkansas as fully and completely as though he were a single person. In the event that the signature of Loretta Ray Rivers or the execution of any instrument shall be required or needed, she does covenant and agree to execute and deliver any such instrument with reference to any and all the said lands in the State of Arkansas. Loretta Ray Rivers does further hereby acknowledge that she has entered into this agreement with full knowledge of the property which Jack ■Looney Rivers owns in the State of Arkansas and that her execution of this agreement is without coercion or undue influence on the part of Jack Looney Rivers.

Mrs. Rivers also signed a separate document relinquishing all rights in this property. The only evidence that indicates she was not informed of her rights was her own uncorroborated testimony.

We also find no breach of duty on Mr. Rivers’ part in failing to inform his wife of the community interest in the appreciation of his separately owned stock. First of all there is no evidence that Mr. Rivers was even aware that any such interest existed. Furthermore, there was no proof of (1) the extent to which their separate property had appreciated, if any; (2) whether or not this appreciation was the result of Mr. Rivers’ efforts; or (3) whether or not the community had already been adequately compensated for this appreciation through the salary paid to her husband.

The 1971 separation judgment awarded Mrs. Rivers $1,200 per month alimony for her and their children. In October 1978 the court increased this award to $1,350 per month for Mrs. Rivers alone. In May 1979 Mr. Rivers ceased making these payments and on July 17, 1979, Mrs. Rivers filed a rule for contempt along with a demand to make past due alimony executory. The court rejected her demands on the ground that Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) rendered Louisiana’s alimony laws unconstitutional.

We reverse this judgment. Although Civil Code Article 148, as written before its amendment in 1979, allowed alimony pendente lite in favor of the wife only, any declaration of its unconstitutionally would be nonretroactive and would have no effect on judgments rendered under that statute prior to its amendment. Lovell v. Lovell, 379 So.2d 418 (La.1979). Furthermore, a spouse is under a continuing duty to pay court ordered alimony until such time as the original order is terminated or amended by a subsequent judgment or by operation of law. Theriot v. Melancon, 311 So.2d 578 (La.App.3d Cir. 1975) and the cases citéd therein. Consequently, once it was established that the alimony payments were past due, the trial court erred in refusing to make the past due amounts execu-tory.

Mr. Rivers did not pay the $1,350 monthly alimony for May, June, and July 1979. Mrs. Rivers is therefore entitled to judgment in the amount of $4,050.00.

For the foregoing reasons, the judgment denying plaintiff’s claim for annulment of the community property settlement agreement is affirmed. The judgment denying plaintiff’s claim for past due alimony is reversed, and it is ordered that there be judgment in her favor for $4,050.00, with legal interest on each of the $1,350.00 payments from the date it became due. Costs of this appeal are assessed equally to plaintiff and defendant.

      . None of the financial statements introduced into evidence were admitted for the purpose of showing the value of the community stock.


author: McClendon, judge.

text:
    JONESBORO STATE BANK, Plaintiff-Appellee, v. Lewis F. TUCKER and Mary A. Tucker, Defendants, Stephenson’s Lumber, Inc., Intervener-Appellant.
    No. 14071.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Walker, Holstead & Smith by R. Wayne Smith, Ruston, for intervenor-appellant.
    Baker, Culpepper & Brunson by J. M. McDonald, Jonesboro, for plaintiff-appellee.
   McClendon, judge.

Stephenson Lumber Company, Inc., as in-tervenor, appealed an adverse ruling on its claim that its material lien was valid and superior to the plaintiff’s mortgage. The intervention followed foreclosure by plaintiff, a default judgment, seizure of defendants’ property under fieri facias, and public sale by the sheriff.

We affirm the trial court’s ruling as set forth in his short, comprehensive opinion.

There is no real dispute about 'the facts. Defendants undertook remodeling of their home in Jonesboro, Louisiana, in 1977. Mr. Tucker supervised the work of a carpenter. No contractor was involved and no contract was recorded.

Material was furnished to the job by in-tervenor of Ruston, Louisiana, beginning July 26, 1977. The last material was delivered on or about October 26, 1977.

Plaintiff’s mortgage was recorded on September 7, 1977, well after the first materials were delivered to the job.

Due to a lack of funds all work on the project ceased in April of 1978.

Plaintiff filed its foreclosure suit on August 29, 1978. Intervenor filed its lien on August 31, 1978.

The intervention, filed after the sheriff’s sale of defendants’ property, sought to have Stephenson’s lien for $1,892.08 (undisputed as to amount) recognized as superior to plaintiff’s mortgage and to be paid by preference from the proceeds of the foreclosure • sale. No other liens were involved.

The trial court found that from all the evidence it should have been reasonably apparent that the project had been abandoned in April 1978 and that intervenor’s failure under the circumstances to investigate and file its lien within 60 days thereafter resulted in the lien not being timely filed.

Evidence taken at the hearing held in this matter consisted solely of the testimony of Mr. S. H. Stephenson on behalf of interve-nor, identifying invoices representing materials delivered to defendants’ job by his company, and cross-examination of Mr. Louis Tucker, defendant owner of the property involved.

Counsel for intervenor-appellant argues that the testimony of Mr. Tucker that he continued to seek funds with which to complete this remodeling work down to the date the foreclosure suit was filed by plaintiff bank is sufficient to establish that there was no intent to abandon and the project was not in fact abandoned until that date, August 29, 1978; therefore, the lien filed two days later was timely.

First it should be noted that La.R.S. 9:4812 establishing the privilege in favor of laborers and material furnishers in connection with private works where no contract is recorded makes no specific provision for “abandoned” construction. It speaks of and contemplates completed work. If an affidavit of completion is filed, the 60 day lien filing period begins with the date of that affidavit. If no affidavit of completion is filed, 60 days are granted from the date of the last delivery of all material or the last furnishing of services or the last performance of labor upon the property.

From this it should follow that work not completed (abandoned) would fall into the second category, i. e., where no affidavit of completion is filed, and require a lienor to file within 60 days after the last material, services or labor were furnished on the job.

One of the earlier Louisiana Supreme Court decisions considering the question of the beginning date for the filing of such liens, National Homestead Ass’n v. Graham, 176 La. 1062, 147 So. 348 (1933), is believed to support this position. This case involved a large apartment complex. The owner, Graham, employed an architect, Neville, to supervise construction. Neville filed a lien on November 5, 1930. In determining whether this lien was timely filed the court found from the uncontradicted testimony of the architect himself that because of money problems the work had slowed early in 1930, after which time the owner lost hope of finding sufficient funds. The conclusion that the work was abandoned on October 1,. 1930, and the lien was timely filed was, in our opinion, based upon the fact that that was when the last services were performed (those of Neville), rather than the fact that Graham “lost hope” of getting further funds.

Appellant cited two cases in support of •the proposition that “abandonment” requires proof of two essential elements: (1) an intent to abandon; and (2) an act of abandonment, but they really have no application here since they involve abandonment either of leased property (Salim v. Louisiana State Board of Education, 289 So.2d 554 (La.App. 3rd Cir. 1974), or of improvements on leased property (Powell v. Cox, 92 So.2d 739 (La.App. 2d Cir. 1957).

Two other cases cited by appellant in support of his contention that Mr. Tucker’s “intent” fixed the - date of abandonment are: Singer Lumber Co. v. King, 45 So.2d 567 (La.App.Orl.1950); First Wisconsin National Bank of Milwaukee v. Novem, Inc., 349 So.2d 370 (La.App. 4th Cir. 1977).

We first disagree that in the earlier Singer case Judge Janvier, as organ of the court, actually held that the abandonment date can be determined by “any mental determination of the owner.” On the contrary, the court there pointed out the dilemma of a prospective lienor if this was the sole basis for fixing the point of abandonment for the purpose of beginning the 60-day lien period as disclosed by the following quoted portion of that opinion:

We are not at all certain as to when the sixty-day period should commence when there is an actual definite abandonment of the job. We find it difficult to persuade ourselves that in such a case the beginning of the sixty-day period may be fixed by any mental determination of the owner. The statute, as interpreted by the Supreme Court, declares that where there is a contract, the materialmen and the laborers and others shall have sixty days from the acceptance of the work within which to file their liens, and that where there is no contract, they shall have sixty days from the completion of the work. A prospective lienor, therefore, need only watch the job to see when the work is completed since he knows that after it is completed he will still have sixty days within which to record his lien. So long as it is not completed, he knows that he still has ample time. How can he determine when the owner has agreed to an abandonment? How can he know that the time for the filing of his lien is running out? He will see that the work, in its incomplete state, is still unfinished and yet when he records his claim he will be told that more than sixty days before that the owner decided that he would go no further with the work and that, therefore, he has lost his lien.
Still if we assume that such result may be accomplished by the mere mental determination of the owner that the work is abandoned, we must nevertheless agree with our brother of the District Court that at the time this lien was filed there had not expired sixty days from the time at which the defendants still hoped to be able to persuade the contractor to proceed with the work. We agree with the District Judge that the evidence of the defendants themselves shows that they had not given up hope and had not abandoned the project until well within the period of sixty-days prior to the filing of the lien. (Emphasis ours)

In the Singer case the sole contest was between the lien claimant and the owners. The contractor had quit and could not be found, but defendants, Mr. and Mrs. Kruger, obviously by their own testimony admitted they were still looking for the contractor and had no intention of abandoning the project if they could find him. Under these circumstances in this particular case, the court found the project had not been abandoned. The testimony of the defendants actually amounted to an admission against interest.

The First Wisconsin National case involved a million and a half dollar foreclosure suit of a motel project where the trial court found that construction was closed down on July 10,1974. The appeal involved thirteen lien holders, eleven of which were not at issue, because all eleven were filed within sixty days after July 10, 1974. One of the other two liens was filed October 31, 1974 and the other on December 18, 1974. The court found both these to have been timely filed for the reason that it did not become apparent that the owner (Novem, Inc.) could not complete the job and had abandoned it until the foreclosure suit was filed on December 2, 1974. In so ruling the court stated: “Until that time, Novem attempted to obtain more financing to finish the project that was stopped when it was nearly completed”, without giving any indication of the type evidence upon which it based this conclusion.

Then the court made the following statement: “Before an abandonment date can be fixed on an incomplete construction project, there should be some outward manifestation of the owner’s intent to give up the project,” followed by a lengthy quotation from Singer, supra, as being an appropriate resolution of this problem. Interestingly, the quote omits the last line and what appears to be the real decision in Singer limited to the particular facts of that case. (See emphasized portion of our above quote from Singer.)

We are unable to determine from the record what the court in First Wisconsin National found the “outward manifestation of the owner’s intent” to give up the project was in that case.

We are convinced that the subjective, uncommunicated intent of the owner in such cases should not be the determining factor in fixing the date of abandonment of a construction project.

We believe that the better approach to this problem is one that treats any unexplained and complete cessation of all work on any construction project in itself as a manifestation of intent on the owner’s part to abandon the project sufficient to put any furnisher of material or laborer on notice that the sixty days granted him for filing his lien may well have begun and he would permit sixty days to run from that date without filing his lien at his own peril. We think this is more in keeping with the requirement of R.S. 9:4812 and the holding of National Homestead Ass’n v. Graham, supra, as well as the strict construction rule applicable to all lien statutes. Federal National Bank & Trust Co. of Shawnee v. Calsim, Inc., 340 So.2d 611 (La.App. 4th Cir. 1976), writ denied La., 342 So.2d 1110, 1111.

This is particularly so since the burden of proving the timely filing of his lien is on the materialman or laborer. Jeffer’s Trust v. Justice, 253 So.2d 234 (La.App. 4th Cir. 1971).

For these reasons judgment of the trial court is affirmed at appellant’s cost.


text:
    State of Louisiana in the Interest of Jerry BEARDEN.
    No. 14072.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    Emmons, Henry & Reeves by Douglas L. Stokes, Jr., Jonesboro, for appellant.
    Leon H. Whitten, Dist. Atty. by John C. Blake, Asst. Dist. Atty., Jonesboro, for ap-pellee.
    Before HALL, JONES and McCLEN-DON, JJ.
   HALL, Judge.

The juvenile court having failed to have the delinquency hearing reported or recorded and transcribed as required by LSA-R.S. 13:1579 (applicable on the date of the hearing in 1978), and there being no legal authority for substituting a narrative of facts prepared by the trial judge for a verbatim transcript of the evidence as was done here, the adjudication of delinquency and commitment of the appellant juvenile (execution of which was suspended pending appeal) is reversed and set aside. See LSA-R.S. 13:1579; State of Louisiana in Interest of Wagster, 348 So.2d 753 (La.App. 1st Cir. 1977); In re State of Louisiana in Interest of Collins, 288 So.2d 918 (La.App. 1st Cir. 1973); In re State of Louisiana in Interest of Aaron, 266 So.2d 726 (La.App. 3d Cir. 1972). The case is remanded for further proceedings. Costs of the appeal are assessed to appellee, State of Louisiana.


author: SAMUEL, Judge. REDMANN, Judge, LEMMON, Judge,

text:
    Sandra M. Johnson, wife of and Raymond David SPEEG v. STEWART TITLE GUARANTY COMPANY et al.
    No. 10884.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 1980.
    Writ Refused April 8, 1980.

      Dutel & Dutel, William J. Dutel, New Orleans, for plaintiffs-appellees.
    Cooper & Hingle, John T. Cooper, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, BOUTALL, SCHOTT, GARRISON, CHEHARDY and HOOD, JJ.
   SAMUEL, Judge.

Subsequent to the date (December 3, 1979) our original opinion and decree, 377 So.2d 589, in this matter was handed down, we discovered another panel of this court had handed down (on November 12, 1979) a conflicting opinion and decree in Les Levy Oil & Supply, Inc. v. Southern Petroleum Transports, Inc., et a Is., 377 So.2d 907. Accordingly, exproprio motu we ordered the motion to dismiss the appeal in this case be submitted for reconsideration to the court en banc.

As the facts are stated in our original opinion, we consider it sufficient to say that, for the reasons stated in Levy and in the cases cited therein, a majority of the judges of this court now holds a judgment compelling payment of attorney’s fees and expenses for failure to comply with discovery procedures is interlocutory and unappealable.

For these reasons, the motion to dismiss is maintained and the appeal in this matter is now dismissed. All costs of this appeal are to be paid by the defendants-appellants.

MOTION MAINTAINED; APPEAL DISMISSED.

REDMANN and LEMMON, JJ., dissent with written reasons.

REDMANN, Judge,

dissenting.

A party ordered to pay attorney fees (for noncompliance with other orders) may win the lawsuit and have no reason to appeal from the final judgment itself. But he ought to have a right to an appeal from the order to pay attorney fees. Presumably the majority means that, after waiting until the end of the lawsuit, he can then appeal the order (perhaps years after the order). (Review by supervisory writ application, on the other hand, is often illusory and is not an acceptable replacement for an appeal.)

If the litigant can appeal from such an order after the end of the lawsuit he should be able to appeal from it at the time the order is rendered. Early appeal is preferable because, with the availability of suspen-sive appeal, it solves the problem of enforceability of the order pending appeal. Delaying the appeal does not offer any real advantage because, unlike ordinary interlocutory orders made moot by a favorable final judgment in the principal lawsuit, an order to pay an opponent’s attorney fees is never mooted by the final judgment, and the appeals from order and from final judgment are wholly unconnected.

LEMMON, Judge,

dissenting.

I dissent for the reasons assigned by Judge Redmann and for the reasons stated in the original opinion.


author: SCHOTT, Judge. LEMMON, Judge,

text:
    Michael O. MIRANNE v. Fay NEW, Lenfant’s, Inc. and United States Fidelity & Guaranty Co.
    No. 11081.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 1980.
    Gregory J. Avery, Law Office of Joseph W. Nelkin, New Orleans, for defendant-ap-pellee Lenfant’s, Inc.
    R. Ray Orrill, Jr., New Orleans, for defendant-appellee Fay New.
    Michael O. Miranne, New Orleans, in pro. per.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages to his automobile. Defendants-appellees are Fay New and Len-fant’s, Inc.

In June, 1977, plaintiff was invited to a four-day fishing trip and party near Coco-drie, Louisiana. The host had arranged for Lenfant’s to supply food and beverages for the party and had engaged the services of 16 year old Donald New, son of defendant Fay New, to cook and clean up for the group. On the first morning while Donald was preparing breakfast for the group he ran out of milk and plaintiff loaned him his automobile so that he could go to the grocery nearby. Donald returned without incident and plaintiff, who was preparing to go out fishing with the group, told Donald that he could use his automobile if it was necessary for him to go back to the grocery. When plaintiff returned from fishing he found that his car had collided with a tree and was demolished. When asked how the accident happened Donald gave the following testimony: “I was just sliding on the gravel road . . . . I was trying to turn the wheel this way (indicating), but it went the other way. I was trying to stop it. I didn’t know which way to stop it. I didn’t want to go in the water.”

Plaintiff’s suit against Fay New is based on LSA C.C. Art. 2318’s making the father liable for the damage caused by his minor child residing with him. His suit against Lenfant’s is based on Art. 2320’s making the employer liable for the damage caused by his employee in the course and scope of employment.

Since the trial judge assigned no reasons we can only speculate as to why he dismissed the suit. Perhaps he inferred that plaintiff’s steering mechanism failed. Fay New contends that plaintiff was contributo-rily negligent in loaning his automobile to Donald without determining that he was a competent driver, but New pleaded no affirmative defense. Even so, the record does not indicate that Donald was an incompetent driver or that there was any reason on the part of plaintiff to suppose that he was incapable of driving an automobile. He was licensed although only to drive with a licensed adult (See R.S. 32:422), but he had successfully driven the automobile to the store already when plaintiff authorized him to take the automobile to the store later.

We have concluded that plaintiff is not entitled to recover against Lenfant’s because the evidence does not establish that Donald New, even if Lenfant’s employee at the time of the accident, was acting in the course and scope of his employment. On the day the trip began Donald was picked up by a member of the fishing group at Lenfant’s but his compensation was to be paid directly to him by the host of the party. Perhaps more clearly, Donald’s employment as to Lenfant’s was that of cook, bartender and dishwasher for the fishing party, but Lenfant’s did not employ him as a driver (although the fishing party did) and thus Donald was not acting as to Len-fant’s “in the exercise of the functions” of his employment, Art. 2320. See National Fire Insurance Co. of Hartford v. Rowe, 116 So.2d 104 (La.App. 1st Cir. 1959) and Dunn v. Campo, 179 So. 102 (La.App.Orl.1938).

As to Fay New, we have concluded that Art. 2318 is not applicable under the facts and circumstances of this case. While this boy was residing with his father in general he was taken to the fishing camp by this group of sportsmen as a live-in servant for four days during which he was beyond the authority of his father. Plaintiff and his host and companions were the masters and Donald New was their servant. When the accident occurred Donald was on a mission for plaintiff and was driving plaintiff’s automobile with his specific authorization. We do not believe that the redactors of the Civil Code intended (nor does the legislature intend) for Art. 2318 to impose liability on Donald’s father under these circumstances.

AFFIRMED.

LEMMON, Judge,

dissenting in part, concurring in part.

In my opinion Lenfant’s, Inc. was vicariously liable as the minor’s direct employer for his tort. On a similar fishing trip sponsored by the same company in 1976 Len-fant’s collected $100.00 for the boy’s services and paid him $80.00. The boy testified that the same arrangements prevailed for the 1977 trip at issue in this litigation, and Lenfant’s failed to produce its officer to dispute this assertion. The fact that the bill did not contain a charge for the boy’s services is inconclusive, because the bill was prepared and rendered after the accident.

As to the issue of course and scope of employment, the boy at the time of the accident was engaged in a task directly related to his employment, that is, the preparation of food for the group. Had he ridden a bicycle to the store to obtain necessary supplies for food preparation, he still would have been regarded as pursuing his employer’s interest. The fact that he drove an automobile to the store does not detract from the purpose of the trip. Moreover, his employer should reasonably have foreseen that he might be required to run an errand in connection with food preparation and presumably consented that he do so, either by walking or by borrowing a bicycle or automobile.

I would reverse the judgment and hold Lenfant’s liable.

As to the liability of the minor’s father, C.C. art. 2318 makes the father responsible for the damages occasioned by his minor child residing with him. This responsibility is based on the presumption of fault for the father’s not having supervised the minor in his care with sufficient strictness. 2 Plai-nol, Traité Élémentaire de Droit Civil, § 909 (La.St.L.Inst.Trans.1959). The responsibility ends when the child regularly lives elsewhere, because the presumption no longer obtains. This presumption, as all legal presumptions, should be interpreted strictly. Plainol, above. § 909A.

In the present case the minor regularly lived with his father, but at the time of the accident was working as a handiman on a four-day fishing trip. While driving on a mission connected with these duties, the minor was either a direct employee of Len-fant’s or a borrowed employee of or an agent for the company which sponsored the fishing trip, and one or the other (or perhaps both) would have been responsible for the minor’s tort if a third party had sustained damage in the accident. Since responsibility for the minor’s conduct rested in Lenfant’s or in the company which sponsored the trip, the father’s responsibility for his conduct was temporarily replaced by the responsibility of the enterprise, and the father should not be liable under these circumstances.

      . This record simply does not provide credible evidence to support the assertions that the host engaged the boy’s services or that the compensation for services was to be paid directly by the host to the boy.