text:
    Elie DECULUS, Plaintiff-Appellee, v. AUGENSTEIN CONSTRUCTION CO., INC., Defendant-Appellant, Olin Corporation, Third Party Defendant-Appellee.
    No. 82-361.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.

      Stockwell, Sievert, Viecellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellant.
    Scofield, Bergstedt, Gerard, Hackett & Mount, Richard E. Gerard, Jr., Lake Charles, for third party defendant-appellee.
    Rozas, Manuel, Fontenot & McGee, Daniel J. McGee, Mamou, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff, Elie Deculus, filed suit against his employer, Augenstein Construction Co., Inc. seeking worker’s compensation benefits. Augenstein filed a third party demand against Olin Corporation pursuant to LSA-R.S. 23:1101 seeking to recover all sums Augenstein may become obligated to pay Deculus as a result of Louisiana Workmen’s Compensation laws. Olin filed a peremptory exception of prescription which was sustained by the trial court thereby dismissing Augenstein’s claim against Olin. Augenstein appeals this adverse ruling. We affirm.

The sole issue presented is whether the trial court was correct in sustaining the peremptory exception filed by third party defendant, Olin.

The record shows that Deculus filed suit against Augenstein on January 6, 1978. Deculus alleges that beginning on October 11, 1973, he experienced numerous medical problems resulting from the inhalation of chemicals, gases and fumes emitted by the Olin Corporation plant. Deculus asserts that as a result of his medical problems he became totally and permanently disabled and was forced to terminate his employment with Augenstein on March 14, 1977. Augenstein, although denying liability for workmen’s compensation benefits, filed a third party demand on September 25, 1980, naming Olin as third party defendant. Au-genstein’s third party demand was based on the provisions of LSA-R.S. 23:1101 which reads as follows:

“When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents. Amended by Acts 1976, No. 147, § 2.”

Olin then filed the peremptory exception of prescription which was sustained by the trial court.

Olin contends that as a third party tort-feasor there is but one cause of action against them for injuries sustained by a compensated employee which may be instituted by the employee himself or by the employer for reimbursement of compensation paid. Olin further contends that this cause of action must be brought against the third party tort-feasor within one year from the time the damage is inflicted. Since three and one-half years lapsed from the time of Deculus’ termination until the filing of the third party demand, Olin asserts that prescription bars Augenstein’s third party demand.

Augenstein contends that its claim under LSA-R.S. 23:1101 is one of indemnification and that prescription does not commence to run against its claim until it has been cast in judgment.

In Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269 (1958) the Louisiana Supreme Court was faced with a similar situation as the present ease. In Marquette, the employee was injured on July 15,1954. Marquette, the compensation insurer, filed suit on November 15, 1955, more than one year after the accident, and defendant pleaded the exception of prescription. The district court sustained the plea but the court of appeal reversed. The court of appeal reasoned that Marquette had at least one year from the time its liability for compensation became fixed to bring its action against the alleged tort-fea-sor for indemnification and that since Marquette did not know the full extent of its liability until November 21,1954, the action was timely since it was instituted within one year from that date.

The Supreme Court reversed holding that there is but one cause of action, ex delicto, for the recovery of damages resulting from a single tort. The Supreme Court stated:

“Since we conclude that there is but one cause of action against the tortfeasor for the injuries sustained by the employee, which may be instituted either by the employee himself or the employer for reimbursement of compensation paid, it follows that the action is governed by the prescription of one year set forth in Article 3536 of the Civil Code. This prescription, according to Article 3537, commences to run from the date on which the damage was inflicted by the defendant— in this case, the date of the accident. Hence, the failure of plaintiff to assert its claim within the one year period is fatal to its action.”

Since Marquette, the Supreme Court has held that for the purposes of prescription and LSA-R.S. 23:1101-03, there is only one principal cause of action. Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979); National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (La.1965).

On the basis of these holdings we conclude that for the purposes of prescription and LSA-R.S. 23:1101-03 there is only one principal cause of action which may be asserted by the employer or the employee. Prescription begins to run on this action from the day the damage is inflicted by the tort-feasor. The failure of the employer or the employee to assert its claim within the one year prescriptive period provided by LSA-C.C. Article 3536 is fatal to their claim.

Augenstein’s third party demand was not filed until September 25, 1980. The latest date that one might interpret as being the date in which the damage was inflicted by Olin was March 14, 1977, the date of Decu-lus’ termination. Therefore, over three and one-half years lapsed before suit was filed by Augenstein against Olin. Deculus asserted no claim against Olin during this three and one-half year period that would interrupt prescription for the employer’s assertion of its rights. Hence, Augenstein’s right to assert a claim against the alleged third party tort-feasor, Olin, has prescribed.

For the foregoing reasons the judgment of the lower court sustaining Olin Corporation’s exception of prescription is affirmed. All costs are assessed to defendant/third party plaintiff, Augenstein Construction Company, Inc.

AFFIRMED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Michael R. SKINNER, Plaintiff-Appellant, v. PAPANIA’S, Joe Robinson, Sigmund Basone, Rockwood Insurance Company and ABC Insurance Company, Defendants-Appellees.
    No. 82-362.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Gray, Clemons & Spruel, James Spruel, Jr., Lake Charles, for plaintiff-appellant.
    Stock well, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, Fruge & Yidrine, Jack C. Fruge, Sr., Ville Platte, John Henry LeBleu, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

Michael R. Skinner, plaintiff-appellant, appeals from a trial court’s judgment which granted a motion for summary judgment filed by Western World Insurance Company, appellee . The sole question presented is whether there is no genuine issue as to material facts, hence entitling Western to judgment as a matter of law. We affirm.

FACTS

Skinner seeks to recover damages for personal injuries he received while involved in a fight with a co-employee, Joe Robinson, on the job. The fight occurred during working hours on August 21, 1980, at a restaurant known as Papania’s which is located in Calcasieu Parish, Louisiana. Skinner was employed by Papania’s at the time of the fight. Skinner’s petitions to the trial court allege the following facts: Skinner and co-defendants, Joe Robinson and Sigmund Basone, were employed by the Western’s insured, Frank Papania, on August 21, 1980, the date of the incident in question; defendant, Joe Robinson, assaulted and attacked Skinner while he “was performing his custodial duties at Papania’s”; Skinner’s injuries resulted from this attack which occurred in the course and scope of his employment with Papania’s; Skinner alleges that he is entitled to workmen’s compensation benefits; and in the alternative, Skinner alleges that Joe Robinson intentionally assaulted him.

Western filed its motion for summary judgment alleging that its policy contained certain clauses that excluded coverage for 1) injuries that are covered by workmen’s compensation and 2) injuries resulting from an assault and battery. The trial court rendered judgment in favor of Western granting its motion for summary judgment.

In support of its motion for summary judgment, Western introduced in evidence a certified copy of the policy issued by it. The policy contains the following exclusionary clauses:

“This insurance does not apply . .. (i) to any obligation for which the insured or any carrier as his may be held liable under any workmen’s compensation, .unemployment compensation, or disability benefits law, or under any similar law...”
“. .. this policy excludes claims arising out of assault and battery, whether caused by or at the instigation of, or at the direction of, or omission by, the insured, his employees, patrons, or any cause whatsoever.”

Western contends that the facts alleged by Skinner in his petition clearly show that the exclusionary clauses of its policy are applicable and that it is entitled to summary judgment as a matter of law.

SUMMARY JUDGMENT

The jurisprudence concerning summary judgment is well settled. In Vascocu v. Singletary, 404 So.2d 301 (La.App. 3rd Cir.1981), we made the following observations:

“LSA-C.C.P. Article 9663 provides that a motion for summary judgment 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.
[2] 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. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Employers’ Surplus Line Insurance Company v. City of Baton Rouge, 362 So.2d 561 (La.1978).
[3] On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., supra.

In consideration of this motion for summary judgment, this court must view the facts as recited by Skinner in the light most favorable to him, in his opposition to the motion for summary judgment. Skinner alleges that his claim entitled him to workmen’s compensation benefits. If this allegation is accepted, then there is no coverage under the workmen’s compensation exclusion. Skinner alleges in the alternative that if workmen’s compensation does not exist, then he was intentionally assaulted. Under this set of alleged facts the “assault and battery” exclusion would be applicable.

Therefore, if one exclusion does not apply, the other does and there can be no coverage under Western World Insurance Company’s policy under either set of facts which Michael R. Skinner alleges. Hence, we affirm the judgment of the trial court. All costs of this appeal are assessed against plaintiff-appellant, Michael R. Skinner.

AFFIRMED.

      . Western World Insurance Company was substituted as defendant for ABC Insurance Company in plaintiffs first supplemental and amending petition.


author: DOMENGEAUX, Judge.

text:
    Ledell WHITE, Plaintiff-Appellant, v. ENERGY DRILLING COMPANY, INC., et al., Defendants-Appellees.
    No. 82-363.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Ernest Johnson, Baton Rouge, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Ledell White, was a guest passenger in a truck owned by Energy Drilling Company, Inc. and driven by one of its employees, Henry E. Walker, deceased. Apparently, Walker was driving the truck at a high rate of speed when he failed to negotiate a curve in the road. The vehicle overturned, killing Walker and injuring Le-dell White.

White sought to recover damages for injuries he incurred in the accident by filing this suit against Energy Drilling Company, Inc. and its unnamed motor vehicle insurance carrier. He also sued Henry E. Walker, deceased, the Estate of Henry E. Walker, and his unnamed motor vehicle insurance carrier. Neither of the unnamed insurers referred to herein were ever cited to appear or served with process during these proceedings.

Judgment was rendered by the trial court in favor of Energy Drilling Company and against Ledell White, on the basis that Henry E. Walker had been acting outside the course and scope of his employment at the time of the accident, and thus could not subject Energy Drilling Company to liability for his tortious conduct. No judgment was rendered in the plaintiff’s suit against the named defendants, Henry E. Walker, deceased, and the Estate of Henry E. Walker.

The plaintiff appeals and makes only one specification of error, that being that the trial judge erred in holding that Henry E. Walker did not have permission to use the Energy Drilling Company truck such that their motor vehicle insurer carrier could not be held liable in damages.

However, this Court is without authority to rule on this proposition. The reason for this is that personal jurisdiction was never obtained over Energy Drilling Company’s motor vehicle insurance carrier.

La.C.C.P. Article 6 describes the methods in which jurisdiction over the person can be obtained:

“Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
(1) The service of process on the defendant, or on his agent for the service of process;
(2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.”

Furthermore, La.C.C.P. Article 1201 describes the effects of failing to serve a party with the citation:

“Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null.
The defendant may expressly waive citation and service thereof by any written waiver made part of the record.”

The plaintiff in the case at hand attempted to bring Energy Drilling Company’s insurance carrier into the proceeding by referring to it as the “. .. unnamed motor vehicle insurance carrier ...” in his petition. However, no service of process was ever made on any company (if one even exists) or on any agent authorized to receive service of process. No insurer ever submitted itself to the exercise of personal jurisdiction over it by the trial court, or expressly or impliedly waived any rights to object to the assertion of such jurisdiction.

In fact, the identity of Energy Drilling Company’s insurer was never disclosed whatsoever. The plaintiff vainly attempted to discover the identity of the insurer by filing interrogatories to Energy Drilling Company on March 24, 1982. But the defendant correctly objected to these interrogatories on the basis that they were untimely since they were filed after completion of trial on the merits. In this connection, this Court stated in LeBlanc v. Consolidated Aluminum Company, 401 So.2d 1082 (La.App. 3rd Cir.1981), writ denied 409 So.2d 617 (La.1981), that:

“... To complain on the trial date, if in fact he did, is too late. Of what benefit could even a favorable ruling have been to him on that date? Interrogatories are a discovery device designed for use in preparation for trial; and discovery should be complete sufficiently in advance of trial.”

The issue propounded by the plaintiff on appeal cannot be resolved by this Court absent a showing of personal jurisdiction over Energy Drilling Company’s insurer. We find the record devoid of any proof that such jurisdiction was ever obtained.

For the above and foregoing reasons, plaintiff’s appeal is dismissed.

All costs at trial and on appeal are assessed against Ledell White.

APPEAL DISMISSED.

      . This party claimed in its answer that it should have been designated as the “Unopened Succession of Henry E. Walker” rather than the “Estate of Henry E. Walker”. The plaintiff made no subsequent amendment to his petition in this regard.


author: FORET, Judge.

text:
    Kenneth Eugene BYRUM, et ux., Plaintiffs-Appellants, v. Bradley HEBERT, et ux., Defendants-Appellees.
    No. 82-364.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiffs-appellants.
    Edwards, Stefanski & Barousse, Stephen ' A. Stefanski, Crowley, for defendants-ap-pellees.
    Before DOMENGEAUX, FORET and ' LABORDE, JJ.
   FORET, Judge.

Mr. and Mrs. Kenneth Eugene Byrum, plaintiffs, defendants-in-reconvention, the paternal grandparents of the minor children, Maranda Ann Austin and William Earnest Austin, Jr., brought this proceeding for a writ of Habeas Corpus, against Mr. and Mrs. Bradley Hebert, defendants, plaintiffs-in-reconvention, the maternal grandparents of the children, ordering them to show cause why the children were being detained by the Heberts and why the children should not be immediately restored to plaintiffs’ custody.

Hearing on the writ was held on September 8, 1981, and the court on that date placed the temporary custody of the children with the Department of Health and Human Resources of the State of Louisiana, and further ordered defendants, plaintiffs-in-reconvention, to file a petition for custody of the children as well as an opposition to the decree of adoption which plaintiffs, defendants-in-reconvention, had petitioned for and obtained in the State of Texas.

The custody proceeding was held on October 9, 1981, and the trial court rendered judgment in favor of reeonvenors, granting them the custody of the two children. We reverse.

ISSUES

Plaintiffs, defendants-in-reconvention, present the following issues:

(1) Whether the trial court erred in failing to order the defendants to file answer to the writ of Habeas Corpus as mandated by the Code of Civil Procedure;
(2) Whether the trial court erred in failing to accord the Texas decree of adoption full faith and credit;
(3) Whether the trial court erred in finding that the children had been in the custody of appellees throughout the pendency of the adoption proceedings in the State of Texas;
(4) Whether the trial court erred in determining that the best interest of the children would be served by awarding their custody to appellees.

FACTS

Lelia Mae Austin, the daughter of defendants, plaintiffs-in-reconvention, was a resident of the State of Texas and had the children with her there. William Earnest Austin, Sr., the father of the children and the son of plaintiff, defendant-in-reconvention, Ada Lois Byrum, was also a resident of Texas. The mother of the children was suffering from a nervous condition and the father of the children was incarcerated in a Texas prison.

On March 19, 1981, the mother of the children took Maranda and William, Jr. supposedly for the weekend, and sent them to Louisiana with her sister and brother-in-law. Being incapable of caring for the children, both she and the father signed an affidavit of relinquishment of paternal rights on April 30, 1981, said affidavit appointing Ada Lois Byrum as managing conservator of the children.

Plaintiffs, defendants-in-reconvention, petitioned in Texas for adoption of the children on May 1, 1981 and subsequently were awarded a “DECREE TERMINATING PARENTAL RIGHTS AND GRANTING ADOPTION”, on June 30, 1981. Plaintiffs requested that defendants return the children to them but defendants refused to do so. This proceeding was thereafter initiated by plaintiffs on August 13, 1981.

HABEAS CORPUS

The writ of habeas corpus is an extraordinary remedy. It may be sued for in either a summary or ordinary proceeding (LSA-C. C.P. Article 2592). Article 3821 of the Louisiana Code of Civil Procedure defines it as follows:

“Art. 3821. Definition
Habeas corpus is a writ commanding a person who has another in his custody to produce him before the court and to state the authority for the custody.
Custody, as used in this Chapter, includes detention and confinement.
A petition for a writ of habeas corpus may be filed by the person in custody or by any other person in his behalf.”

LSA-C.C.P. Article 3825 provides the following:

“Art. 3825. Answer; production of person in custody
The person upon whom the writ has been served, whether it is directed to him or not, shall file an answer stating whether he has custody of the person named in the writ. If the person is in his custody, he shall produce him and state in his answer by what authority he holds the person detained.” (Emphasis ours.)

Plaintiffs alleged that the trial court erred in not requiring the defendants to file answer. We agree. LSA-C.C.P. Article 2593 provides that ordinarily, an answer is not required in a summary proceeding, (except as otherwise provided by law). As can be seen from Article 3825 above quoted, the writ of habeas corpus is one of the exceptions where an answer is required in a summary proceeding.

Whether the action is proceeding summarily or via ordinaria is of no moment in this case, however, because either mode of procedure may be utilized in bringing a writ of habeas corpus and because Article 3783, requiring answer before the hearing, makes no distinction as to the mode of procedure, we conclude that in either case written answer must be filed not later than the time fixed for hearing. Without answer, the matter was not properly before the court for adjudication.

FULL FAITH AND CREDIT

The trial judge herein ruled on the date of the hearing on the writ of habeas corpus that it would not accord the Texas decree of adoption Full 'Faith and Credit because the decree “was invalid on its face”. He therefore found that Louisiana had jurisdiction pursuant to LSA-R.S. 13:1700, commonly referred to as the UNIFORM CHILD CUSTODY JURISDICTION ACT. We disagree.

It is well settled in the jurisprudence of Louisiana that a state may deny full faith and credit to a foreign judgment only when it is shown that the court which rendered it lacks jurisdiction over the parties or the subject matter. U.S.C.A. Const., Art. 4, § 1; LSA-C.C.P. Art. 1; Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir.1979); Prairie Finance, Inc. v. Perry, 389 So.2d 1131 (La.App. 3 Cir.1980).

Additionally, there is a general presumption that a court of a sister state had jurisdiction to render the judgment in the case before it, and it is incumbent upon the person attacking the judgment to show by clear and positive proof that the rendering, court was without jurisdiction. U.S.C.A. Const., Art. 4, § 1; LSA-C.C.P. Art. 1; Berry v. Berry, 307 So.2d 821 (La.App. 3 Cir.1975); Holden v. Holden, supra; Prairier Finance, Inc. v. Perry, supra.

Ordinarily, when a party seeks to attack a judgment of a foreign court on the basis that it lacked jurisdiction, the law utilized in making that determination is the law of the foreign state rendering the judgment. Fountain v. Fountain, 365 So.2d 1139 (La.App. 3 Cir.1978); Prairie Finance, Inc. v. Perry, supra. However, when the party attacking the foreign judgment contends that the law of the foreign state applies, but does not introduce or demonstrate what the law of that state is with respect to the relevant issues, it is presumed that the law of the foreign state on the question point is the same as the existing law of Louisiana. Holden v. Holden, supra; Prairie Finance, Inc. v. Perry, supra.

Defendants contend, and the court so found, that the decree of adoption rendered in Texas was invalid on its face. The reason advanced was that the children were not present in Texas either at the time of the filing of the petition for adoption or at the time of the signing of the judgment.

No Texas law was cited on the point so we are bound by the presumption that the law of Texas on this issue is the same as the existing law in Louisiana.

Applying Louisiana law to the facts herein, we find that the Texas court had jurisdiction to render the decree of adoption. Article 10 of the Louisiana Code of Civil Procedure provides, in pertinent part:

“Art. 10. Jurisdiction over status
A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
(1) An adoption proceeding if the person who has legal custody of the child is domiciled, or the child is lawfully, in this state, and the court has personal jurisdiction over the adoptive parent,; or if the latter is domiciled in this state, and the court has personal jurisdiction over the legal custodian;” (Emphasis ours.)

Under Louisiana law, a court would have had jurisdiction over the subject matter because of this status article. Furthermore, the Texas court decree itself states unequivocally that the children were in the state of Texas and the legal custodians of the children (plaintiffs, defendants-in-re-convention) were domiciled in Texas. Thus, the Texas court had personal jurisdiction over them.

Furthermore, the decree accords with due process in that it meets the minimum contacts requirements. On its face, it states that the children were present in Texas, the natural parents were domiciled and living in Texas, the relinquishment of paternal rights took place in Texas, and the conservators of the children (the paternal grandparents) were domiciled and living in Texas.

We hold that the decree was therefore valid and the Louisiana court should have accorded it full faith and credit.

Because of these findings, it is unnecessary to reach the remaining issues.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Kenneth Eugene Byrum, et ux and against Bradley Hebert, et ux, reversing the judgment of the trial court herein awarding the Heberts custody of Maranda Ann Austin and William Earnest Austin, Jr.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon receipt of this decision, defendants, plaintiffs-in-reconvention, file an answer to the plaintiffs, defendants-in-reconvention’s writ of habeas corpus as provided by Articles 3783 and 3825 of the Louisiana Code of Civil Procedure.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon receipt of this decision, the trial court reset the matter for hearing within the delays prescribed by LSA-C.C.P. Article 3782.

All costs of these proceedings, both in this Court and at the trial level, are assessed against appellees.

REVERSED AND REMANDED.

      . William Earnest Austin, Jr. never lived with the Byrums because he was a sickly child and his mother had to frequently take him to a doctor. Maranda Austin had been living with the Byrums for three weeks prior to the time that the children were taken to Louisiana.

      . Mrs. Byrum testified as to the date of the filing since the petition was not included in the record.

      . ‘Art. 3783. Answer
      A written answer to a petition for a writ shall be filed not later than the time fixed for the hearing.”


text:
    JOHN BAILEY CONTRACTOR, INC., Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Third Party Defendant-Third Party Plaintiff-Appellant, and F. Miller & Sons, Inc., and Fidelity and Deposit Company of Maryland, Defendants-Third Party Defendants-Third Party Plaintiffs-Appellees.
    No. 82-369.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Granted April 5, 1983.
    James B. Frederick, Jr., Baton Rouge, for defendant-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Emmett C. Sole, Lake Charles, for plaintiff-appellee.
    James A. Smith of Smith & Wise, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Defendant, the Department of Transportation and Development (State) appeals from a judgment awarding plaintiff, John Bailey Construction, Inc. (Bailey), $30,-000.00, on the basis of equitable estoppel, for work performed by Bailey as sub-contractor of defendant, F. Miller & Sons, Inc. (Miller), the prime contractor for construction of a road project for the State; and from a judgment in favor of Miller against it (State) on Miller’s third party demand for indemnification. We reverse.

On or about August 2, 1976, the State and Miller entered into a written contract for the construction of a project known as State Project No. 31-04-13, commonly referred to as “Bayou Choupique Bridge and Approaches” located in Calcasieu Parish, Louisiana. Miller in turn entered into a sub-contract with Bailey for the performance of part of the work on the project. This contract was entered into orally on or about August 5, 1976, and though prepared in writing was never executed between the parties. However, at trial all parties stipulated that the written contract between Miller and Bailey, although never signed, represented the binding agreement between those parties. In its suit, plaintiff seeks to recover from defendants the cost of labor and materials used in construction of a detour road on the project, which was prepared to expedite construction of the project, but was not provided for in the project’s plans and specifications.

The contract between the State and Miller provides for the construction of a temporary detour road in its special provisions, and in particular provides that the temporary detour road would consist of furnishing construction, embankment, base course, and surfacing for temporary detours in accordance with planned details in the following requirements which are then set forth. The plans, which are also incorporated in the contract documents, provide only for a detour road on the northern portion of the project, and do not provide the detour road in question. Miller, under the terms of its sub-contract with Bailey, contracted with Bailey for performance of certain work, which under the terms of the contract, did not include the road in question. Miller’s sub-contract with Bailey further incorporates by reference all provisions of the contract Miller had with the State. The State contract and the Miller sub-contract contained provisions for claims for extra work or charges resulting from the performance of work under either the original contract between the State and Miller or the subcontract between Miller and Bailey. There is no dispute that the roadway in question, referred to as the south detour road, was not contemplated in the original plans and contract prepared by the State, nor was it contemplated in the sub-contract between Miller and Bailey.

During the course of construction on the project it became evident that some sort of decision would have to be made concerning the detoured flow of traffic while work was completed in its southern phase. An informal meeting was held between all parties herein, at which the various options available were discussed. It was concluded, not by any one individual but by everyone attending the meeting, that the safest and most expedient method to temporarily reroute traffic would be to construct the southern detour road. The meeting adjourned, and without any orders being given concerning the conclusion reached, Bailey proceeded on his own to construct the southern detour road.

The substantial issue presented on appeal was whether or not the trial court erred in finding that Bailey was entitled to recover from either defendant under the theory of equitable estoppel.

Our Supreme Court in American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (La.1967) made the following observations concerning equitable estoppel:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.”

The three elements required for application of equitable estoppel are: (1) A representation by conduct or work; (2) Justifiable reliance thereon; and (3) A change of position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

Since estoppel bars the normal assertion of rights, courts apply the doctrine cautiously. American Bank and Trust Company, supra.

Equitable estoppel has no application unless the persons invoking it relied, and had a right to rely, upon the representations or conduct of the person, or persons, sought to be estopped. Hence, there is no compliance with this rule requiring reliance upon representations, express or implied, as an element of estoppel where the persons pleading the estoppel had actual knowledge or convenient means of acquiring knowledge of the facts concerning which the representations were made. Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir.1974).

The representations charged to defendants in the present case relates to their recommendations to construct the southern detour road and their knowledge that it was being built although not provided for in the project’s specifications. Defendant State, however, contends that the construction of the road falls within the obligation of Miller and Bailey to maintain traffic during the course of construction on the project. It is the State’s position that it was plaintiff’s responsibility to maintain an orderly flow of traffic regardless of which method was chosen. At no time had anyone informed Bailey that payment for the unprovided for detour road would be forthcoming. In fact, there was some testimony by the State engineers on the project that they informed the parties that no additional compensation would be paid for said construction.

Section 105.17 of the Standard Specifications, which forms a portion of each of the contracts (State’s contract with Miller, and Miller’s sub-contract with Bailey) provides as follows:

“105.17 CLAIMS FOR ADJUSTMENT AND DISPUTES
If, in any case, the contractor deems that additional compensation is due him for work or material not clearly covered in the contract or not ordered by the engineer as extra work, as defined herein, the contractor shall notify the engineer in writing of his intention to make claim for such additional compensation before he begins the work on which he bases the claim. If such notification is not given and the engineer is not afforded proper facilities by the contractor for keeping strict account of actual cost as required, then the contractor hereby agrees to waive any claim for such additional compensation.” ... (Emphasis added)

There is no doubt that Bailey failed to notify anyone, in writing or otherwise, of his intent to seek additional compensation for the work performed until after completion of the detour road. We find that absent some representation by the defendants that Bailey would be paid for the detour road, they are not estopped from refusing said claim. Furthermore, the record clearly indicates that Bailey could have conveniently acquired information concerning payment by merely inquiring either to the representatives of Miller and/or of the State. Having failed to prove two of the essential elements of the plea of estoppel (a representation and a justifiable reliance) Bailey cannot avail himself of that doctrine.

The facts of this case are unlike those of Louisiana Paving Company, Inc. v. State, Department of Highways, 372 So.2d 245 (La.App. 1st Cir.1979) which case estopped the State from failing to comply with a verbal agreement contrary to that provided for in that project’s plans and specifications. In Louisiana Paving Company, supra, the State Highway Engineer on that project informed the sub-contractor that he would be paid for the additional work performed. That verbal agreement was supplemented by written notations on the plans; by written evidence of such approval placed in the project’s file in the Department’s Baton Rouge office; and verified by the State’s engineer who testified to making the agreement.

For the above and foregoing reasons the judgment of the district court is reversed, and it is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendants, State of Louisiana, Through the Department of Transportation and Development, F. Miller & Sons, Inc., and Fidelity and Deposit Company of Maryland, and against plaintiff, John Bailey Contractor, Inc., dismissing plaintiff’s demands against said defendants.

It is further Ordered, Adjudged, and Decreed that the third party demands of the State of Louisiana, through the Department of Transportation and Development, F. Miller & Sons, Inc., and Fidelity and Deposit Company of Maryland, are hereby dismissed.

Costs at trial and on appeal are to be assessed against plaintiff, John Bailey Contractor, Inc.

REVERSED AND RENDERED.

      . Also joined as defendant in this suit was Fidelity and Deposit Company of Maryland, Miller’s surety.

      . In addition to the principal action filed against said defendants, defendant Miller filed a third party action against the State seeking indemnity for any sums which it might be cast in judgment to the plaintiff, and the State likewise filed a third party demand against Miller. Judgment was rendered against both Miller and the State in solido, whereafter judgment was further rendered in favor of Miller and against the State on Miller’s third party action.

      . Bailey’s suit also sought relief under the terms of its contract, which claim was correctly dismissed by the trial judge. The court below held that the explicit terms of the contracts did not provide for the construction of the detour road at issue. Furthermore, Bailey failed to comply with the contract provisions calling for written authorization to deviate from the plans and specifications before seeking additional compensation for extra work performed. This issue has not been raised on appeal.

      . “MAINTENANCE OF TRAFFIC: Subsection 104.04 of the Standard Specifications is amended to include the following. The contractor shall provide for and maintain through and local traffic at all times and shall conduct his operations in such manner as to cause the least possible interference with traffic in the vicinity of this project.
      In order to maintain traffic, the contractor shall construct temporary detours as provided under Item S-2 elsewhere herein.
      No direct payment will be made for providing for and maintaining traffic, except payment for temporary signs, barricades, traffic markings and detours.”


author: GUIDRY, Judge.

text:
    Carson CLOUD, Plaintiff-Appellee, v. Alice Faye Frazier CLOUD, Defendant-Appellant.
    No. 82-372.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Martin S. Sanders, Jr., of Sanders & Cas-tete, Ltd., Winnfield, for defendant-appellant.
    Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Carson Cloud instituted this suit against his wife, Alice Faye Frazier Cloud, seeking a judgment declaring a certain 20 acre tract of land located in Natchitoches Parish, Louisiana to be his separate property. The defendant filed peremptory exceptions of no cause of action and no right of action. Both exceptions were overruled. The trial judge ultimately granted judgment in favor of the plaintiff, Carson Cloud, declaring the property in dispute to be his separate and paraphernal property. From this judgment the defendant wife appeals.

The issues raised on appeal are (1) whether the trial court erred in concluding from the evidence that the property in dispute is the plaintiff’s separate property; (2) whether this action presents a justiciable controversy; and, (3) whether the trial court abused its discretion in granting a declaratory judgment.

FACTS

Carson Cloud married the defendant, Alice Cloud, in 1955.' At the time of the trial of this matter, the parties were involved in an action for separation from bed and board in the Eighth Judicial District Court, Parish of Winn, Louisiana. As an incident to that suit, Alice Cloud made claim to the property in dispute and obtained an injunction against Carson Cloud, prohibiting him from alienating or encumbering said property.

The following documents, affecting the status of the property, were introduced into the record at trial:

(1) a certified copy of an act of sale, dated October 19, 1946, to Carson Cloud and his brother, Dwight Cloud, from their father, Noah Cloud, of a 40 acre tract of land (which included the 20 acres in dispute);
(2) a certified copy of an act of sale, dated January 19, 1949, to Carson Cloud from Dwight Cloud of his interest in the same 40 acre tract; and,
(3) a certified copy of an act of sale dated August 10, 1953, to Dwight Cloud, from Carson Cloud of 20 acres of the forty acre tract.

Before proceeding to a discussion of the issues raised on appeal, we deem it necessary to first consider the question as to whether this suit by plaintiff is barred by interspousal immunity. Defendant-appellant raised this issue at the trial level by filing an exception of no cause of action which the trial court overruled.

LSA-R.S. 9:291, as amended in 1979, authorizes causes of action between spouses, not judicially separated, “... arising out of . .. the provisions of Title VI Book III of the Civil Code”. In this action, plaintiff seeks to have certain property declared separate as opposed to community. A determination of the issue presented is governed by the provisions of the several articles contained in Title VI Book III of the Civil Code, particularly Civil Code Articles 2338, 2340 and 2341. We, thus, conclude that the present action is one arising out of the provisions of Title VI Book III of the Civil Code and is, thus, within the exception for suits between spouses, not judicially separated.

IS THE PROPERTY IN DISPUTE THE PLAINTIFF’S SEPARATE PROPERTY?

La.C.C. Article 2340 provides that things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La.C.C. Article 2341 provides in pertinent part that the separate property of a spouse is his exclusively and includes property acquired by a spouse prior to the establishment of a community property regime. Comment (c) of the official comments to La.C.C. Article 2340 states:

“The presumption of community under this provision is rebuttable. For example, the presumption is rebutted as to property acquired prior to the marriage by evidence establishing the date of acquisition ...”

The plaintiff made a prima facie showing that the date of acquisition of the property was prior to the marriage. The parties were not married until 1955, two years after the last of the series of transactions by which plaintiff acquired the property in dispute.

“A community of acquets and gains cannot exist without a marriage, and any property acquired prior thereto must necessarily be of a paraphernal nature.”

Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir.1976), writs denied, 342 So.2d 217 (La.1977). Also see, Racca v. Unopened Estate of Breaux, 377 So.2d 581 (La.App. 3rd Cir.1979).

The defendant does not contend that the property was acquired during the existence of the marriage. Instead, over plaintiff’s objection she introduced certified copies of several mortgages and mineral leases affecting the property in dispute, granted by Carson and Alice Cloud. Defendant contends that the joint execution of the aforesaid mineral leases and mortgages coupled with the fact that community funds were used to pay off the indebtedness, the payment of which was secured by the mortgages, had the effect of converting the status of the property from separate property to community property. We disagree. If community funds were used to satisfy separate obligations, then defendant may have an action under La.C.C. Article 2364, in reimbursement. However, neither that fact nor the fact that the defendant signed certain documents affecting the property can, in any way, alter the separate nature of property acquired before marriage.

Accordingly, the trial judge did not err in concluding from the evidence that the property in dispute is the plaintiff’s separate property.

DOES A JUSTICIABLE CONTROVERSY EXIST?

Defendant raises the issue of justici-ability on appeal. Declaratory relief is available to decide only justiciable controversies. The courts are without power to render advisory opinions. In Stoddard v. City of New Orleans, 246 La. 417,165 So.2d 9 (1964), the Supreme Court stated, in discussing LSA-C.C.P. Article 1871 et seq.:

‘‘These codal articles create a procedural device by which the courts may make a declaration of rights without executory or coercive relief. The articles are remedial in nature and must be liberally construed. Basic to the exercise of these procedures, however, is the existence of a justiciable controversy. The courts are without power to render advisory opinions on abstract questions.” (footnotes omitted).

And, in Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), the court stated:

“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (citations omitted).

The defendant contends that the plaintiff has proved at best a hypothetical interest in the property in question and therefore, the dispute is merely abstract and the parties are not truly adverse.

As aforementioned, the plaintiff has introduced three deeds valid on their face establishing his acquisition of the property prior to the existence of the community. He has, therefore, properly established more than a hypothetical interest in the property.

In her answer to plaintiff’s petition, defendant admitted that she had made claim to the property and that she had obtained an injunction against Carson Cloud, prohibiting him from alienating or encumbering the aforementioned 20 acres.

We conclude that there is an existing, actual dispute which involves the legal relations of parties, who have real adverse interests.

DID THE TRIAL JUDGE ABUSE HIS DISCRETION IN GRANTING A DECLARATORY JUDGMENT?

Plaintiff’s last contention is that declaratory relief is not appropriate in this particular case and that the trial judge abused his discretion in granting same. LSA-C.C.P. Article 1876 provides:

“The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

Appellate courts, as well as trial courts, are granted broad discretionary power to determine whether a suit is one in which declaratory relief may be appropriate. Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So.2d 509 (La.1959).

In Smith v. Smith, 230 La. 509, 89 So.2d 55 (La.1956), a daughter, the sole heir to her mother’s estate, brought an action to obtain a declaration that certain property was the mother’s separate property and was not part of the community which had existed between the defendant and the mother. The trial court refused declaratory relief. The Supreme Court reversed finding that the judgment appealed from fell squarely within the provisions of R.S. 13:4232, which is the source provision of C.C. Article 1872.

We find no abuse of the broad discretion of the trial judge in his determination that this suit for declaratory judgment was appropriate. The judgment of the trial court terminates the uncertainty and controversy giving rise to the proceeding.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed against defendant.

AFFIRMED.

      . Over plaintiffs attorney’s objection, testimony was elicited from the plaintiff to the effect that he considered the series of deeds to be “sham deals”. The objection was well made and we do not consider this evidence. The deeds whereby Carson Cloud acquired the subject property are valid on their face. There were no allegations of fraud, error or mistake nor is the defendant one having an interest to attack these deeds. Chronos Land Co., Inc. v. Crichton, 91 So. 408, 150 La. 963 (La.1922).

      . The defendant also introduced, over plaintiffs objection, certified copies of four acts of donation to the children of Carson and Alice Cloud of the 20 acres, with “reservation of usufruct, right of use, habitation, and all timber and all minerals pertaining to the property”. The validity of these donations are not at issue in this proceeding however, even if valid, it is clear from the face of these documents that plaintiff’s reservation constitutes a real and actual, not hypothetical, interest in this property.

      . La.C.C.P. Article 1872 is a verbatim reproduction of R.S. 13:4232 and provides:
      “A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”


text:
    Wilmer JORDAN, Plaintiff-Appellee, v. SECURITY COMPANY, Defendant-Appellant.
    No. 82-376.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Gus Voltz, Jr. of Voltz & Ware, Alexandria, for defendant-appellant.
    Kenneth Ray Rush, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This appeal involves an action in redhibition filed by Wilmer Jordan against Harold Katz, d/b/a Security Company, seeking to rescind the sale of a Remington Model 1100 L.W. .410 automatic shotgun. The trial court granted judgment in favor of Jordan and against Security Company rescinding the $331.75 sale with legal interest from judicial demand, plus an attorney’s fee of $300.00 and all costs of court. Security appeals. We conclude that Jordan failed to prove that the shotgun suffered from redhi-bitory defects within the contemplation of Louisiana Civil Code Article 2520, et seq. Hence, we reverse.

Jordan purchased the automatic shotgun from Security Company on October 2, 1980. In January, 1981, he brought the gun back to Security complaining that it was “hanging up”. Security sent the gun to a gunsmith, Lee Stagg, in Pineville, Louisiana, who disassembled the gun for a visual inspection, reassembled it, test fired it, and returned it to Security finding “nothing wrong with it”. The gun was returned to Jordan. Jordan returned the gun to Security three (3) or four (4) months later again complaining it was “hanging up”. Security sent the gun to Jack Alexander, an authorized Remington gunsmith in Shreveport, Louisiana. Alexander examined the gun and found it to be in satisfactory working condition and returned it to Security. When Jordan came to Security to pick up his gun he refused to accept delivery claiming there were scratches on the trigger guard. In addition to refusing to accept delivery, Jordan refused to have the gun sent back to Alexander, the Remington gunsmith, and refused Security’s offer to replace the trigger guard. A few weeks later Jordan picked up the shotgun and no further complaints were registered with Security until July 2, 1981, the day this suit was filed.

Judgment was rendered by the trial court in favor of Jordan rescinding the sale, and for $331.75 with legal interest thereon from date of judicial demand until paid, plus an attorney’s fee of $300.00 and all costs of court.

Security advances seven (7) trial court errors. Since we are convinced that Jordan failed to carry his burden of proof as required by LSA-C.C. Art. 2520 et seq., we will address only that assignment of error.

The applicable law regarding actions in redhibition and vices of things sold is found in Section 3 of the Louisiana Civil Code beginning with Article 2520 which defines redhibition.

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Article 2520 is limited by Article 2530 which provides:

“Art. 2530. The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

It is well settled that the plaintiff need not necessarily introduce expert testimony. As quoted with approval in Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871 (La.1924):

“ ‘It is not incumbent upon the buyer to seek out, allege and prove the particular and underlying cause of the defects which make the thing sold unfit for the purpose intended, particularly when the thing is a complicated piece of machinery; but it suffices if he alleges and afterward proves as a fact that such defects exist.’ ” (101 So. at 872)

While he need not prove the underlying cause of the defect, it is still necessary that he prove the existence of the defect at the time of the sale. Edelman Systems Inc. v. Capital GMC., Inc., 345 So.2d 99, (La.App. 1st Cir.1977). “Vice or defect” as used in Article 2520 contemplated a physical imperfection or deformity; a lacking of necessary component or level of quality. Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd Cir.1980).

We hold that Jordan did not establish a prima facie case of a redhibitory defect, and our decision is premised on the following reasons.

Jordan’s proof consisted of his own testimony and the testimony of his hunting partner, Porter L. Johnson. Jordan testified that he fired the gun one time and that it malfunctioned, i.e., “hung up” so he brought it back to Security. On the second occasion he used the gun, it fired three (3) times and “hung up” on the fourth shot. This testimony was confirmed by Porter L. Johnson. At the trial, an expert witness for Security testified that the gun was not defective solely because the gun “hung up”. In his testimony he explained many ways in which the gun could malfunction in this manner without the gun being defective. He included in this list: operator error, short loading, improper maintenance and care, and intentional jamming. Therefore, the malfunctioning of the gun, i.e. “hanging up” in itself does not establish that the gun is defective.

Because the burden is on the plaintiff initially to establish a prima facie case, the failure to establish such a case defeats his cause of action. The burden does not shift to the defendant until a prima facie case has been established by the plaintiff by a preponderance of the evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, (La.1971). The testimony of Jordan and Johnson merely establish that the gun “hung up”. Within the factual context of this case, fair inferences may be drawn from such malfunctions other than that the gun is defective. For example, the gun becoming “hung up” could have resulted from improper loading. To allow Jordan to establish a prima facie case on such evidence places an undue burden on Security who has no personal knowledge as to the acts preceding the malfunction. Hence, we find that the proof offered was insufficient to sustain Jordan’s burden of proving that a redhibitory defect existed at the time of the sale.

For the foregoing reasons, the judgment of the trial court is reversed, at appellee’s, Wilmer Jordan, cost.

REVERSED AND RENDERED.


text:
    Alva Z. ALBRIGHT, Plaintiff-Appellant, v. James A. PRENTICE, et al., Defendants-Appellees.
    No. 82-379.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.

      Morris Borenstein, New Orleans, for plaintiff-appellant.
    Laird & Buck, Martin L. Laird, III, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This appeal involves a suit by Alva Z. Albright against Leroy Higginbotham, Jr., James A. Prentice, H.P. Equipment Company (H.P.), A1 Albright, Inc. and NFI, Inc. In his prayer, Albright asked that “all contracts or letters of assignment between petitioner and (the defendants) be declared null and void and without legal effect”. He also asked the defendants be cast in damages in the amount of $1,500,000.00 for false arrest, loss of business reputation, conversion of personal property, loss of profits, lost wages, lost dividends, mental and emotional distress and suffering and slander. After a hearing, the trial judge granted judgment in favor of the defendants and dismissed Albright’s demands against all defendants. Albright appeals. We affirm.

The issues raised on appeal are:

1) Whether or not the trial court erred in denying Albright the right to inspect certain books of H.P.;
2) Whether or not the trial court erred in finding that the articles of incorporation superceded the oral pre-incorporation agreement;
3) Whether or not the trial court erred in finding the assignment made by A1 Albright, Inc. to H.P. to be valid;
4) Whether or not Albright as a shareholder can personally sue for damages resulting from the mismanagement of A1 Albright, Inc.;
5) Whether or not the trial court erred in finding that Albright had received sufficient consideration in exchange for assigning his patent rights to A1 Al-bright, Inc.; and
6) Whether or not Albright is entitled to damages for false arrest.

In the latter part of 1972, Albright sought out Higginbotham and Prentice for the purpose of having them finance the development and construction of a timber harvesting machine. After some discussion, A1 Albright, Inc. was formed. In the articles of incorporation, Albright was to receive 50% of the stocks, but only one-third of the voting shares. Higginbotham and Prentice were each to receive 25% of the stocks and one-third of the voting stocks. Higginbotham and Prentice paid $15,000.00 into A1 Albright, Inc. and advanced Al-bright. an additional $5,000.00 to cover his expense of moving to Alexandria. Albright assigned his patent rights to certain machines to A1 Albright, Inc. The corporate office was located on the Lake Charles Highway south of Alexandria. The operation was a financial failure, and by July of 1973, it was apparent that additional funds would be needed. A meeting of the board of directors was held on July 20, 1973. They authorized A1 Albright, Inc. to convey the exclusive right of distribution of these machines to H.P. In return H.P. agreed to pay reasonable research and development expenses, either in the form of cash advances or direct payment of invoices. Al-bright worked for A1 Albright, Inc. until about September of 1979 when he quit in a dispute over the purchase of a house. Subsequently, this suit was filed on behalf of Ava Z. Albright personally.

RIGHT OF DISCOVERY

The first specification of error alleges that Albright was denied the right to inspect the books of H.P. Reference is made to a minute entry of July 13, 1981. That minute entry was made pursuant to an opposition to a motion to produce documents for reproduction. After a hearing, the Court relieved the defendant, H.P. from complying with the following requests:

# 25) That H.P. furnish its Federal and State income tax records for the tax years 1972 through 1980.
# 26) That H.P. furnish the record of social security taxes paid by it during the tax years 1972 through 1980.
# 27) That H.P. furnish its checking and savings account records from November 1, 1972 through June 29, 1981.
# 29) That H.P. furnish all records of its expenses incurred wherein records of
‘ the operating expenses of H.P. were kept, during the period from November 1, 1972 through June 29, 1981.
# 30) That H.P. furnish all receipts and/or other records reflecting the corporate income of H.P. during the period from December 1,1972 through June 29, 1981.
# 32) That H.P. furnish complete records of all salaries, commissions or other monies paid to Higginbotham or Prentice, during the period from November 1, 1972 through June 29, 1981.
# 35) That H.P. supply a complete inventory of all production facilities and other capital present at its present main place of doing business at the present time, that belong to H.P.

H.P. was required to comply with the request for production contained in all other paragraphs relating to it.

The trial court has reasonable discretion to refuse or limit discovery of matters not relevant to the issues, unreasonably vexatious or tardily sought which might delay the trial. Michigan Wis. Pipe L. Co. v. Sugarland Develop. Corp., 221 So.2d 593 (La.App. 3d Cir.1969).

H.P. Equipment Company urges that the requested information contains materials totally unrelated to the transactions between H.P. and A1 Albright, Inc. Also they argue that the identical information sought from the income tax returns and other accounts is being furnished in the records they are required to produce under other sections of the subpoena. While we agree that liberality of pretrial discovery should be encouraged, it must not be fostered without regard to the right of the party against whom it is invoked to be protected against undue hardship, loss or damage. LSA-C.C.P. Art. 1426.

From our review of the record, we conclude the trial judge did not abuse his discretion in limiting the scope of discovery.

ARTICLES OF INCORPORATION

Albright contends that there was some sort of oral agreement between him, Prentice and Higginbotham prior to the formation of A1 Albright, Inc. and that the stock structure of A1 Albright, Inc. violated this alleged agreement. He contends that the pre-incorporation agreement provided he would own one-half (Vs) of the company’s stock including one-half (%) of the voting rights. Therefore, as a result of the alleged fraud on the part of Higginbotham and Prentice in drawing up the articles of incorporation, he received only one-third (Vs) of the voting rights of the corporation.

Albright signed the articles of incorporation of A1 Albright, Inc. This charter and stock structure was prepared by Senator Ned Randolph, a respected attorney in Alexandria. A party who signs a written instrument is presumed to know its contents. Starns v. Ducote, 254 So.2d 301 (La.App. 3rd Cir.1971).

The standard of appellate review applicable here is stated in Canter v. Koehring Company, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

Manifest error was interpreted by the Louisiana Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978):

“Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong “(manifestly erroneous).”

The record disclosed the following: Senator Randolph mailed the stock certificates to the various stockholders of A1 Albright, Inc.; he included with the stock certificates a letter fully explaining the stock structure; while under cross-examination, Mr. Al-bright admitted that Senator Randolph explained the stock structure to him while he was in Senator Randolph’s office.

From the above, we hold that the trial court was not manifestly erroneous in its conclusion that Albright knew the contents of the articles of incorporation when he signed it. Therefore, we conclude that the articles of incorporation are valid and that they supercede any prior oral agreement between the parties.

ASSIGNMENT BY AL ALBRIGHT, INC. TO H.P.

Albright contends that the assignment of exclusive distribution rights of certain patents belonging to A1 Albright, Inc. to H.P. were invalid. The assignment to H.P. occurred on July 20,1973, at a meeting of the board of directors of A1 Albright, Inc. Al-bright contends that he had no notice of this meeting. Therefore, the transfer is void under LSA-R.S. 12:73. The record does not support this contention. A waiver of notice signed by Albright was introduced into evidence. This waiver of notice specifically stated the purpose of the meeting.

Albright alleges that the signature on the waiver is not genuine. Therefore, he contends the trial court erred in finding the assignment valid. On review the appellate court should not disturb factual findings of the trial court in the absence of manifest error. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra.

The testimony of a handwriting expert showed that Albright’s signature on the waiver of notice in question was genuine. This testimony was not controverted by Al-bright. Therefore, we hold the trial court did not commit manifest error in holding that Albright had notice of the meeting in question.

Albright further contends in this regard that the assignment was invalid due to the fact that Higginbotham and Prentice were officers of H.P. and that this interest in H.P. was not disclosed to him. Albright bases his contention on LSA-R.S. 12:84. A review of this statutory language reveals that an officer can transact business with his corporation if the transaction or contract is fair as to the corporation. LSA-R.S. 12:84, in extract, is here quoted:

“No contract or transaction between a corporation and ... any other business ... in which one or more of its directors or officers are directors or officers ... shall be void or voidable solely for this reason ... or solely because his . .. votes were counted for such purpose if:
(3) The contract or transaction was fair as to the corporation as of the time it was authorized.”

Therefore, even though Higginbotham and Prentice were officers in H.P., the transaction can be valid if the contract is fair as to the corporation. Thus, the resultant issue is one of fact. The review of the appellate court will be limited to whether the trial court committed manifest error in its factual findings. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra.

A review of the record revealed the following facts: A1 Albright, Inc. was in financial trouble at the time of the assignment; the assignment conveyed the exclusive right of distribution; H.P. in exchange for this right agreed to pay reasonable research and development expenses, either in the form of cash advances or direct payment of invoices.

From our review, we hold that the assignment was fair as to the corporation. Therefore, we conclude the trial court did not commit manifest error in holding that the assignment was valid.

RIGHT OF SHAREHOLDER TO PERSONALLY SUE

The issue is whether Albright as a shareholder can sue personally for damages resulting from the mismanagement of A1 Al-bright, Inc. Albright alleges that he suffered damages due to acts committed by Higginbotham and Prentice for A1 Al-bright, Inc. These complained of acts are: extensive comingling of funds; improper accounting procedure; and the assignment of rights by interested directors.

An action for mismanagement or fraud belongs to the corporation, not the stockholders. Orlando v. Nix, 171 La. 176, 129 So. 810 (La.1930). As an asset of the corporation, such a right to recover loss for mismanagement or fraud may only be asserted secondarily by a shareholder through a shareholder’s derivative suit. Beyer v. F & R Oilfield Contractor, Inc., 407 So.2d 15 (La.App. 3rd Cir.1981); writ denied, 411 So.2d 451 (La.1982).

Counsel for Albright cites no authority which allows Albright to recover personally for damages incurred through the mismanagement of A1 Albright, Inc. We hold that Albright’s sole remedy is through a shareholder’s derivative suit.

LACK OF CONSIDERATION

Albright contends that the compensation he bargained for in exchange for assigning his patent rights to the timber harvesting machines never materialized. The bargained for compensation according to Al-bright was a salary. Therefore, since he was never paid a salary) he contends that the assignment of the patents to A1 Al-bright, Inc. is invalid due to lack of consideration.

The record reveals that Albright received $72,000.00 while employed at A1 Albright, Inc. Albright contends this money is not a salary but a draw, i.e. advance on future commissions. The trial court concluded that in this case the draw or salary was basically the same thing, a payment of consideration. Albright has the burden of proof which according to our review of the record he has failed to carry. Therefore, we hold the trial court did not commit manifest error in upholding the validity of the assignment to A1 Albright, Inc. of Al-bright’s patent rights.

FALSE ARREST

Albright contends he was falsely arrested by the police at the instance of Higginbot-ham. Due to this alleged false arrest, Al-bright contends he suffered damages. The facts of the arrest are as follows: Albright was arrested by Rapides Parish Sheriff officers; the officers were alerted by a silent burglar alarm; the arrest took place at the A1 Albright, Inc. facility during the early morning hours; Albright had severed his employment with A1 Albright, Inc. four months earlier; and Higginbotham did not learn of Albright’s situation until after the arrest.

In a suit for damages for false imprisonment, Albright must show that he was arrested at the instance of defendant, who acted maliciously and without probable cause. Sundmaker v. Gaudet, 113 La. 887, 37 So. 865 (La.1905). We conclude from the above facts that Albright was arrested by the police responding to a burglar alarm instead of at the instance of Higginbotham. Therefore, we conclude the trial court was correct in denying damages for false arrest.

Por the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    Rosey Ann Berry NEWMAN, Plaintiff-Appellee, v. Robert Emery CANCIENNE, Defendant-Appellant.
    No. 82-382.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.
    A.J. Fazzio, Lake Charles, for defendant-appellant.
    Francis A. Dressier, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This is an appeal by Robert Emery Canci-enne from a trial court judgment granting custody of his two daughters to his deceased wife’s mother, Rosey Ann Berry Newman. We reverse.

Cancienne was married to Mary Esther Darlene. Of this marriage was born two girls, Lisa and Donna, whose custody is the subject of this suit. During their marriage Cancienne, his wife and children, lived on the same street (Ninth Street in Lake Charles, Louisiana) as the maternal grandmother, Mrs. Newman. In September 1976, Cancienne and his wife were legally separated. In May 1977, Mrs. Cancienne died. Cancienne reassumed custody of his two minor children. Lisa was 11 and Donna was 6 at the time of their mother’s death.

Cancienne found he needed help in caring for his children. Mrs. Newman, who was also a neighbor, offered to look after the girls while the defendant was at work. Defendant agreed to this arrangement. No mention of “support” was made at that time. After Mrs. Cancienne’s death the youngest child, Donna, lived practically exclusively with her grandmother. Lisa moved freely between her father’s home and her grandmother’s home. In November 1977, Cancienne remarried. Cancienne, his wife and Lisa moved away from Ninth Street. Donna stayed with Mrs. Newman.

Mrs. Newman sued for custody of the girls in November 1977. After a hearing in January 1978, Cancienne was awarded custody of his children. After being awarded legal custody of both Lisa and Donna, Can-cienne consented to Mrs. Newman’s request that Donna continue living with her. Can-cienne’s second marriage was short lived. In June 1978, Cancienne and Lisa returned to Ninth Street. Lisa returned to the pattern of staying with both Cancienne and Mrs. Newman.

In June 1981, Cancienne remarried. He moved into his present wife’s home in Moss Bluff, Louisiana, a community approximately ten miles north of Lake Charles. The children stayed with Mrs. Newman.

On September 21, 1981, Mrs. Newman filed this rule seeking custody of the children. She alleged her financial inability to support the girls and sought child support payments from the defendant. On September 24th, Cancienne moved his children into his home in Moss Bluff and enrolled them in school. On September 28th, Mrs. Newman picked Donna up from her school in Moss Bluff and took her to Vidor, Texas. Lisa remained with her father and attended school in Moss Bluff. On October 1, 1981, Cancienne sought a writ of habeas corpus directing Mrs. Newman to return Donna to his custody. Service of this writ was never perfected and the writ was never heard. On December 6, 1981, Lisa moved to Texas and joined Mrs. Newman.

Mrs. Newman and both girls returned to Lake Charles in January 1982, for a hearing on this rule. They were still residing in Texas but Mrs. Newman indicated she would return to Lake Charles when the custody was resolved. The trial judge recessed the hearing to allow time for psychological evaluation of all of the parties involved and awarded temporary custody to Mrs. Newman. The trial court heard the remainder of this case on June 14, 1982. Mrs. Newman and the girls evidently returned to Lake Charles before the end of the school term because testimony in June indicated both girls had made up the work they had missed while in Texas and both girls had passed to their next grade; Lisa, 12th and Donna, 6th. The report of the court appointed psychologist was examined by the court and both sides. Upon completion of the hearing, the trial judge, in oral reasons, awarded permanent custody of both girls to Mrs. Newman and ordered Cancienne to pay child support in the amount of $200.00 per month per child, retroactive to September 21, 1981, the date suit was filed.

Cancienne has appealed challenging the trial court’s custody award and the correctness of the retroactive award of child support.

Wood v. Beard, 290 So.2d 675 (La.1974), the cornerstone of the applicable law in our state, held that when parents compete with non-parents for the custody of children, “[t]he parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights.” The Louisiana Supreme Court has limited the basis for rebuttal to these three situations in Deville v. LaGrange, 388 So.2d 696 (La.1980).

In his oral reasons for judgment the trial judge cited Deville, supra; Litton v. Lewis, 409 So.2d 1254 (La.App. 2nd Cir.1982); and Burt v. McKee, 384 So.2d 489 (La.App. 2nd Cir.1980). After extracting the correct rule of law from these cases the trial judge said:

“... In this case, the evidence is clear that Mr. Cancienne is certainly not an unfit person to have custody of his children. The evidence also indicates that he certainly has better physical facilities than Mrs. Newman.[ ] ... As to the forfeiture of parental rights, it appears to the Court that Mr. Cancienne has forfeited his parental right by his failure to provide or see that necessary clothing and facilities and so on have been provided for his children.”
(Emphasis ours.)

A trial judge’s determination in a child custody case is entitled to great weight on appellate review and will not be disturbed in the absence of manifest error. Deville v. LaGrange, 379 So.2d 37 (La.App. 3rd Cir.1979), aff’d, 388 So.2d 696 (La.1980). However, forfeiture of custody must be expressly determined and well supported. Litton v. Lewis, supra. Further, a finding of forfeiture or parental rights cannot be presumed. Hall v. Hall, 367 So.2d 162 (La.App. 2nd Cir.1979). The record must support such a finding. Thus, the only issue in this case is whether the trial judge was clearly wrong in finding that Cancienne had forfeited his parental rights.

Cancienne never gave any financial assistance directly to Mrs. Newman. However, Mrs. Newman did receive monthly. Social Security checks. At the time of trial the sum was $127.80 per child. Mrs. Newman had income for her support as she was employed and earned $500.00 per month. Cancienne, until June 1981, and with the exception of his seven month absence during his marriage in 1977 and 1978, lived on the same street as Mrs. Newman and saw his children practically every day. He purchased clothes and gifts for the girls on their birthdays, Christmas and other special occasions. Mrs. Newman never indicated to Cancienne she could not adequately provide for the children with the Social Security payments she received. Cancienne was in a position to see that his children were being furnished the necessities of life and, being financially capable, he provided some of the luxuries. As Lisa reached her teen years Cancienne bought her a motorbike and, later, a car. The girls were never without the necessities of life and Cancienne never refused to provide for any need he knew existed.

The parent-child bond enjoys, as it should, great protection under our law. The fact that a parent, with legal custody, who acquiesces in the desires of his children and the children’s grandparent that they be together, does not, without more, constitute an intent to forfeit his parental rights relative to those children.

Our law clearly states that, when a parent competes with a non-parent over the custody of the parent’s children, the parent shall prevail unless the non-parent shows the parent is unable to care for the children, is unfit to have custody or has forfeited his rights to the children. The trial court erred in finding that the defendant forfeited his parental rights to his children. The defendant is entitled to a continuation of the custody of his two children. Having come to this conclusion, the judgment of the trial court, awarding custody of the two children to Mrs. Newman and also awarding child support in the amount of $200.00 per month per child retroactive to September 21, 1971, and to continue in the future at the same rate, shall be reversed.

For the reasons above, the judgment of the trial court is reversed and set aside. The plaintiff’s rule for custody and child support is hereby dismissed. Costs of the trial court and this appeal are assessed to plaintiff-appellee.

REVERSED AND RENDERED.

      . In Deville, after repeating the rule of Wood, the Supreme Court stated: '
      “We ajso indicated what forms these compelling reasons may take: proof that the parent has forfeited his or her right to parenthood, that he or she is unfit, or that he or she is unable to provide a home for the child.”

      . The record fully supports the trial court’s finding of fitness arid better facilities to care for the children. Cancienne’s income was $27,-559.14 and he and his wife live in a nice brick home in Moss Bluff. Counsel for Mrs. Newman only argues the forfeiture of parental rights.

      . The United States Supreme Court recently addressed the question of what “due process” required before the State of New York could permanently sever parental relationships. The applicable New York statute mandated the State prove that a child was permanently neglected by a “fair preponderance of the evidence.”
      The court noted a fundamental liberty interest of natural parents in the care, custody and management of their children. The court also stated this interest does not evaporate simply because the parent has not been a model parent. The court held that before a state may terminate parental rights the state must prove its allegations by “clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 1402, 102 S.Ct. 1388, 1402, 71 L.Ed.2d 599 (1982).


author: YELVERTON, Judge.

text:
    Mary Jane Miller BODIN, Plaintiff-Appellant, v. Patrick PASCHAL, et al., Defendants-Appellees.
    No. 82-384.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Sandoz, Sandoz & Schiff, Gerald H. Schiff and Leslie J. Schiff, Opelousas, for plaintiff-appellant.
    McBride & Foret, Robert R. McBride, Haves, Fazzio, Durio & Richard, Anthony M. Fazzio, Voorhies & Labbe, Amos H. Davis, Edward J. Milligan, Jr., Richard R. Kennedy, Lafayette, for defendants-appel-lees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

The sole issue is an insurance coverage question. State Farm Mutual Automobile Insurance Company provided liability coverage to Marianne Paschal on her Mercury. Did this coverage protect her while she was driving her husband’s Pontiac?

All relevant facts were stipulated and the policies were introduced into evidence. The trial court concluded that State Farm did not provide coverage under the circumstances presented. Plaintiff appealed. We affirm.

The question arose out of a lawsuit resulting from an automobile accident. A Ms. Bodin sued for personal injuries based on the negligence of Marianne Paschal.

Before her marriage to Patrick Paschal, Marianne owned a Mercury insured by State Farm. Patrick owned a Pontiac insured by Lumbermen’s Mutual Casualty Company. The Paschals were married on June 3, 1978. On July 7, 1978 State Farm issued a renewal policy to Ms. Paschal. Ms. Paschal was in an accident on October 11, 1978. On that date both the Lumbermen’s policy listing her husband’s Pontiac and the State Farm policy listing her Mercury were in effect. A day or two before the accident the Paschals switched cars. This was done because her car had been stalling occasionally and Mr. Paschal, a mechanic, thought it better that he drive it. The result was Ms. Paschal was driving her husband’s Pontiac on the day of the accident.

Ms. Bodin sued both State Farm and Lumbermen’s (the Paschal insurers), as well as Government Employees Insurance Company, Ms. Bodin’s uninsured motorist carrier. She also named the two Paschals as defendants. Thereafter, the Paschals, Lumbermens, and Government Employees filed third party demands against State Farm for contribution.

The main demand and the third party demand against State Farm were dismissed when the trial court found that the State Farm policy did not provide coverage to Marianne Paschal while she was operating her husband’s car.

The policy issued by State Farm contained the following pertinent provisions:

COVERAGE A — Bodily Injury Liability; COVERAGE B — Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by any person;
B. injury to or destruction of property, including loss of use thereof, hereinafter called “property damage”;
arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile.
Definitions. Under Part 1:
“named insured” means the individual named in the declarations and also includes his spouse, if a resident of the same household:
“insured” means a person or organization described under “Persons Insured”; “relative” means a relative of the named insured who is a resident of the same household;
“owned automobile” means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded.
(b) a trailer owned by the named insured.
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or
(d) a temporary substitute automobile; “temporary substitute automobile” means any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
“non-owned automobile” means 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;

The appellant argues that the policy contains a serious ambiguity in that the husband’s-vehicle should be either an “owned” or “non-owned” vehicle under its terms. Appellant argues that it is incongruous to find that the vehicle can be neither “owned” nor “non-owned”. We must disagree.

In Fontenot v. Guillory, 327 So.2d 578 (La.App. 3rd Cir.1976), writ denied 330 So.2d 314 (La.1976), this court was confronted with a similar situation. In that case State Farm had issued two liability-policies to the defendants, one covering a 1964 Chevrolet automobile and the other covering a 1970 Chevrolet pickup. The policies contained similar definitions of an “owned” and “non-owned” automobile. The 1964 Chevrolet automobile was involved in an accident with the plaintiff’s vehicle and the plaintiff argued coverage under both policies. Finding that the 1964 Chevrolet was neither an “owned” nor a “non-owned” vehicle under the terms of the policy covering the pickup, this court stated:

The declaration sheet on this policy provides for liability coverage arising out of the use of the 1970 Chevrolet pickup truck. It does not name as an insured automobile the 1964 Chevrolet automobile involved in the accident, so that vehicle is not an “owned automobile” under the terms of the policy for purposes of liability coverage. Nor is the 1964 Chevrolet a “non-owned automobile” under the terms of the policy covering liability arising out of the use of the pickup truck. The 1964 Chevrolet was owned by Guillory, so that it did not qualify as a “non-owned automobile” under the pickup truck policy. Since State Farm’s liability arises only out of the ownership, maintenance or use of either an “owned” or “non-owned automobile,” as defined in the policy, no liability coverage is provided under the policy covering the pickup truck for an accident involving the use of the 1964 Chevrolet.. ..

In the present case the declaration sheet on State Farm’s policy provides for liability coverage arising out of the use of the Mercury. It does not name as an insured automobile the Pontiac involved in the accident, therefore under section “(a)” of “owned automobile” the Pontiac is not an owned automobile under the terms of the policy. Under section “(b)” the Pontiac could not be classified as a trailer. The Pontiac also does not qualify under section “(c)(1)” since it did not replace the Mercury or under “(c)(2)” since there is no evidence that the named insured notified State Farm within 30 days after the date of acquisition or during the initial policy period. Nor could the Pontiac be considered a “temporary substitute automobile” or a “non-owned automobile” under the terms of the policy covering liability arising out of the use of the Mercury, since the Pontiac was owned by a named insured under the terms of the policy. For these reasons we find that the district court correctly determined that the policy issued by State Farm did not provide coverage for Ms. Paschal while driving the vehicle owned by her husband.

Therefore, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . Under the terms of the policy the spouse is considered a named insured if he is a resident of the household. Mr. Paschal was married to Marianne at the time of the accident and a resident of the same household, therefore he is a named insured under the policy and he was the owner of the Pontiac.


author: STOKER, Judge.

text:
    Glen C. JONES, Plaintiff-Appellant, v. LEE DAUTREUIL REAL ESTATE AND CONSTRUCTION, INC., et al., Defendants-Appellees.
    No. 82-385.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Stephen D. Baker, Lafayette, for plaintiff-appellant.
    Armentor & Wattigny, Gerard B. Wattig-ny, New Iberia, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The amount of the attorney’s fees awarded plaintiff-appellant is the sole issue in this appeal. The merits of the case are not involved. The trial court awarded $307.27 in attorney fees and costs in addition to plaintiff’s basic recovery of $1,110.80. Plaintiff’s counsel itemized his time in services rendered through trial for a total of 31.6 hours and contends that reasonable compensation for his services should be based on $50.00 per hour.

Glen C. Jones, plaintiff-appellant, purchased a newly constructed home from Lee Dautreuil Real Estate and Construction, Inc. and Lee Dautreuil individually. Because of construction defects Jones sued defendants for $3,626 in repairs and $5,000 for inconvenience and loss of use together with reasonable attorney’s fees. The trial court denied the claim for inconvenience and loss of use under Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1980).

The trial court handed down written reasons for judgment which dealt for the most part with a detailed survey of the items of repair. With reference to attorney’s fees the trial court observed only that, “Although the plaintiff’s attorneys are demanding considerably more than the award the plaintiffs are getting in this case, the recovery of attorneys’ fees will be limited to one-third of the amount of the award.” As the award was $1,110.80, the attorney’s fees were fixed at $370.27.

At first blush it might appear that $370.27 is poor compensation for over thirty hours of work. However, we note that plaintiff’s claim of $5,000 for inconvenience and loss of wages was rejected altogether and the trial court awarded less than one-third of the amount demanded in repairs ($1,110.80 out of $3,626.00 demanded). The trial court was entitled to engage in some balancing of the result against counsel’s time and effort. The question here is reasonable attorney’s fees to be granted as damages against the losing party and not what counsel may reasonably charge his client.

The discretion and role of the trial judge in fixing attorney’s fees is discussed in State, Department of Highways v. Terrebonne, et al., 349 So.2d 936 (La.App. 1st Cir.1977), writ denied, 351 So.2d 166 (La.1977) and Dowden v. Commonwealth Life Insurance Company, 407 So.2d 1355 (La.App. 3rd Cir.1981). We find no abuse of the trial court’s discretion in fixing the attorney’s fees in this case. No increase in attorney’s fees will be made for conducting this appeal as appellant did not prevail. Reeves v. Great Atlantic & Pacific Tea Company, Inc., et al., 370 So.2d 202 (La.App. 3rd Cir.1979), writs denied, 371 So.2d 835 (La.1979) and 372 So.2d 568 (La.1979) and Conlay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir.1979), writ granted, 371 So.2d 618 (La.1979), dismissed upon settlement, 374 So.2d 650 (La.1979).

For the foregoing reasons we affirm the judgment of the trial court. The costs are assessed to the plaintiff-appellant.

AFFIRMED.