text:
    ADAMS INDUSTRIES, INC., Plaintiff-Appellant, v. CITY OF MONROE et al., Defendants-Appellees.
    No. 14186.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    En Banc. Rehearing Denied July 24, 1980.

      Paul Henry Kidd, Monroe and Stone, Pig-man, Walther, Wittmann & Hutchinson by Michael R. Fontham, New Orleans, for plaintiff-appellant.
    Foley, Judell, Beck, Bewley & Martin, New Orleans, Hayes, Harkey, Smith & Cas-cio by Haynes L. Harkey, Jr., Monroe, for defendants-appellees, The City of Monroe; the Commission Council of the City of Monroe; Hon. Robert Powell, Mayor of the City of Monroe, Hon. Luther T. Harper, Commissioner and Hon. Harlan Prestridge, Commissioner.
    Madison, Files, Garrett, Brandon & Ha-maker by David I. Garrett, Jr., Monroe, for defendant-appellee, Sunbelt Manufacturing, Inc.
    William J. Guste, Jr., Atty. Gen., Baton Rouge by Robert C. Downing, Monroe, for defendant-appellee, Attorney General of the State of Louisiana.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

The plaintiff, a manufacturer of plastic products in Monroe, sought to enjoin the City from carrying out an industrial inducement plan which would provide a competitor with a manufacturing plant on public property. The City’s exception of no cause of action was sustained and plaintiff’s demands were rejected. On plaintiff’s appeal, we affirm the result for reasons different than stated by the trial court.

Plaintiff is a Michigan corporation with its principal place of business in Monroe. Plaintiff’s president resigned his position with plaintiff in 1978 and, with others, created a corporation (Sunbelt Manufacturing, Inc.) to directly compete with plaintiff. Sunbelt and the City began negotiating in 1979 to utilize Louisiana’s industrial inducement statutes to permanently finance the construction and lease to Sunbelt of a manufacturing plant in the Monroe Industrial Park. See Art. 6, § 21, La. Constitution.

The City apparently sometimes attempted to combine and to fulfill in one advertisement and in one ordinance, the often distinct requirements of two or more inducement statutes. See and compare LRS 33:4717.2 and LRS 39:991 et seq.

LRS 33:4717.2 authorizes a municipality to lease for industrial inducement purposes a plant site for a consideration which may include the potential value of the economic impact the induced enterprise would have on the community.

LRS 39:991 et seq. authorizes a municipality to issue bonds to finance the construction and the lease of plant sites to induced enterprises.

The City’s attempt to combine the requirements of two statutes generated many issues from each litigant. In this appeal, plaintiff attacks only the lease proposal and does not attack the bonding procedures. The attacks on the lease generally concern the legal effect of the plaintiff’s starting the construction of its plant in the industrial park (financed by private interim loans) before the proper procedures were followed to authorize the City to lease the property. The essence of the issues raised by the litigants is whether or not the City followed the proper procedure to authorize execution of the lease.

LRS 33:4717.2(A) requires that a municipality publish a notice of its intent to lease public property once a week for two consecutive weeks beginning at least 14 days from the date “such action is contemplated.” This notice “. . . shall include the following:”

“(1) a general description of the proposed transfer,
“(2) a description of the property to be transferred,
“(3) the proposed consideration to be given in exchange for said property,
“(4) a statement that the proposed contract is on file for public inspection in the office of the political subdivision,
“(5) a statement as to the appraised value of such property as determined by a real estate appraisal made within the previous twelve months,
“(6) a date, time, and place at which objections to such transfer will be received. Should five percent of the resident electors of the political subdivision object to said proposed transaction, an election shall be held for the purpose of submitting the question of the transfer to the voters in accordance with Chapter 6 of Title 18 of the Louisiana Revised Statutes of 1950.”

Part (B) of this statute reads:

“B. The resolution or ordinance adopted by the governing authority authorizing any transfer of property of the political subdivision shall set forth, in a general way, the terms of the authorized transfer and that the contract is on file for public inspection in the office of the political subdivision. At the regularly scheduled meeting immediately prior to the meeting at which the resolution will be considered, the governing authority of the political subdivision shall announce to those persons present that the resolution will be considered at the next meeting. Such resolution or ordinance shall be published as soon as possible after adoption in one issue of the official journal of the political subdivision. For a period of thirty days from the date of publication of any such resolution or ordinance, any interested person may contest the legality of such resolution or ordinance or the validity of the authorized transfer, after which time, no one shall have any cause of action to contest the legality of the transfer for any cause whatsoever, and it shall be conclusively presumed thereafter that every legal requirement has been complied with, and no court shall have authority to inquire into such matters after the lapse of said thirty days.” Emphasis supplied.

On August 17, and 24, 1979, this notice was published in the Monroe News-Star, Monroe’s daily newspaper:

“NOTICE OF INTENTION TO LEASE PROPERTY IN MONROE INDUSTRIAL PARK
“The City . . . hereby gives notice pursuant to the provisions of [LRS 33:4717.2] of its intention to lease 8.75 acres of land to Sunbelt . . . for the purpose of constructing a manufacturing plant . . . The property to be leased is . described as * *
“Upon its completion, Sunbelt will convey the . . . project ... to the City. The City will then lease the project to Sunbelt for an amount sufficient to repay . . . $2,700,000 . of revenue bonds which will be issued by the City pursuant to [LRS 39:991-1001] In addition Sunbelt will pay
“The term of the lease shall be * *
“The proposed lease and all documents . - . . are . . . open to public inspection at the office ... of the Secretary-Treasurer of the City .
“An appraisal of the leased land . made during the preceding 12 months . reflects that it has a value of . $3,150 . . . per acre.
“Notice is further given that the Commission Council of the City will meet in open and public session . at 10 o’clock a.m. on the 11th day of September, 1979. At such time any and all objections to the proposed lease to Sunbelt will be heard and considered.
“By order of . the City, this 14th day of August, 1979.”

A hearing was held on September 11, 1979, to receive objections and the City then enacted on that date a resolution authorizing the execution of the lease. This September resolution refers to Ordinance No. 7080 which was enacted by the City on August 14, 1979.

Ordinance 7080, which was published on August 21, 1979, is a lengthy document (five newspaper pages of legal type size) because its provisions also relate to the issuance, security, and sale of the industrial inducement bonds. Ordinance 7080, which purports to authorize the City to execute the lease with Sunbelt, authorizes and directs publication of the notice about details of the lease and the hearing for objections, all as required by LRS 33:4717.2. Ordinance 7080 obviously attempts to combine the procedures for authorizing the bonds with the procedures for authorizing the lease. The notice about the lease contained in Ordinance 7080 is identical to the notice quoted above. Ordinance 7080 was published on August 21, 1979. The notice quoted above was published twice, once on August 17 and again on August 24, 1979. Thus the notice required by LRS 33:4717.2 was published three times, the earliest of which was August 17, 1979, more than 14 days from the date of the enactment of the resolution authorizing the City to execute the lease.

LRS 33:4717.2(B) sets forth a 30-day delay, after the expiration of which, no attack can be made upon the resolution or ordinance authorizing execution of the lease or upon the validity of the lease. The trial court determined that Ordinance 7080, published on August 21, 1979, validly authorized execution of the lease and held that the 30-day delay had expired when plaintiff filed its petition on October 2, 1979, which was an “in toto” amendment of all other petitions and amending petitions filed by plaintiff.

The statutory procedure of LRS 33:4717.2, which the City advertised it was pursuing, is clear. After the two advertisements mentioned, a hearing for objections is held. If more than five percent of the resident electors of the City object to the inducement lease, an election shall be held for the purpose of transmitting that question to the voters. Thus we hold that a resolution or ordinance could not have been validly enacted authorizing the City to lease public property to an induced enterprise until the required notices were properly and timely given and until the required hearing was held on the date advertised, September 11, 1979.

The City, having advertised that it was proposing to lease “pursuant to” LRS 33:4717.2, is obligated to follow that statute’s procedure and cannot now contend that it may also be empowered to lease under the provisions of LRS 39:991 et seq. which in § 1000 requires only one advertisement. We need not decide what leasing authority LRS 39:991 confers in this context. We uphold, however, the September resolution authorizing execution of the lease, finding that the notice and hearing provisions of LRS 33:4717.2 were met by the City.

Plaintiff’s amended petition of October 2, 1979, was filed before peremption could have occurred. Plaintiff, however, does not allege a cause of action.

Summarized, plaintiff’s allegations are that the public is not getting fair consideration from Sunbelt in return for what the City is giving Sunbelt, that plaintiff is irreparably harmed by private, ultra vires contracts, illegal favoritism, and by unfair competition, and that the statutes and procedures employed unconstitutionally deny plaintiff equal protection of law.

Industrial inducement statutes are expressly permitted by the constitution and have been upheld against a multitude of constitutional attacks, including that argued by plaintiff. La. Constitution Art. 6, § 21. Hegeman Farms Corp. v. Baldwin, 293 U.S. 163 (1934). See La. Constitution 1921, Art. XIV, § 14(b.2); Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So.2d 394 (1954); Farlouis v. LaRock, 315 So.2d 50 (La.App. 1st Cir. 1975). The Public Contract Law, requiring competitive bidding, is not applicable to industrial inducement projects. Hebert v. Police Jury of West Baton Rouge Parish, 200 So.2d 877 (La.App. 1st Cir. 1967).

Even if we assume that the City’s negotiations and dealings with Sunbelt and Sunbelt’s beginning construction of its plant on industrial park property in April or May (before the correct statutory procedure was eventually undertaken in August) were ultra vires acts, this assumption does not avail plaintiff. These matters, having occurred, became moot when the City timely and properly advertised in accord with the statutory scheme, held hearings for the objections to the project, and enacted a resolution in accord with the statutory scheme, authorizing the execution of the proposed lease. See Farlouis, supra.

If the public (the City) did not make a “good deal” because the proposed consideration for the lease, including the potential economic impart of the induced enterprise, was insufficient as plaintiff generally contends, the forum to be convinced is not the court, but the legislative-executive body (here the Commission Council and Mayor of the City) and the time and place to raise such questions is at the hearing of objections to the project. LRS 33:4717.2. The legality of the resolution, of course, and the legal validity, but not the economic wisdom, of the lease, may be questioned here.

Plaintiff’s allegations question only the economic wisdom of the lease and do not assert any legal grounds of invalidity. The resolution is legal in all respects.

At plaintiff’s cost, judgment rejecting plaintiff’s demands in AFFIRMED.

      . (1) When a project requires issuance of bonds and leasing of City property is it necessary for the City Council to comply both with the Bond Validation Statute, LRS 39:991 et seq. and with the authority to lease provisions under LRS 33:4712 and 4717.2?
      (2) If notices are published indicating the City intends to comply with one of these statutes is it sufficient for that entity to comply with a different statute?
      (3) Can the final resolution authorizing the City to lease City-owned land be separated from the final resolution authorizing the City to issue bonds?
      (4) If so, was that final authorization granted at the August 14, 1979, or at the September 11, 1979, meeting?
      (5) If LRS 33:4717.2 is applicable and a suit is filed prior to the final adoption of the resolution authorizing the City to lease property, is that suit premature and therefore perempted since the 30-day period has now passed? If so, are “Supplemental and Amending Petitions in Toto” filed subsequent to the adoption of the final resolution, sufficient to overcome the peremptory exception of prematurity?
      (6) Is invalidity of the procedure enacting the preliminary agreement prefacing the statutory compliance of the final resolution alone sufficient to taint the validity of the final resolution and thereby nullify that resolution?
      (7) Is a private agreement entered into between the City and an enterprise arranging for the enterprise to construct its industry on City property, prior to authorized leasing of that property, a denial of equal protection and due process under the Louisiana and United States Constitutions?

      . We hold that the City, having advertised pursuant to LRS 33:4717.2, is obligated to follow the procedures of that statute to obtain authority to lease.
      The action that is contemplated we deem to be the enactment of formal authority to execute the lease.

      . This resolution reads:
      “A RESOLUTION DIRECTING THE MAYOR AND SECRETARY OF THE CITY OF MONROE TO PROCEED WITH THE EXECUTION OF A LEASE AGREEMENT WITH SUNBELT MANUFACTURING, INC., PURSUANT TO THE PROVISIONS OF ORDINANCE NUMBER 7080 OF THE CITY OF MONROE, PREVIOUSLY ADOPTED BY THE COMMISSION COUNCIL OF THE CITY OF MONROE ON AUGUST 14, 1979; AND TO DO ALL OTHER THINGS NECESSARY IN ORDER TO IMPLEMENT THE PROVISIONS OF SAID ORDINANCE
      “WHEREAS, Ordinance Number 7080 of the City of Monroe, adopted on August 14, 1979, authorized the execution and delivery of a lease agreement with Sunbelt Manufacturing, Inc., covering 8.75 acres of land in the Monroe Industrial Park and directed that public notice thereof be given pursuant to the provisions of LRS 33:4717.2, and that a hearing be held this date for the purpose of hearing and considering any and all objections thereto, and
      “WHEREAS, a hearing was held this date pursuant to said notice, at which all objections were heard and considered, and
      “WHEREAS, the Commission Council is of the opinion, after hearing such objections, that the public interest would be served by the execution and delivery of the said lease agreement with Sunbelt Manufacturing, Inc.
      “NOW THEREFORE, BE IT RESOLVED, by the Commission Council of the City of Monroe, in regular session convened, that the Mayor and Secretary of the City of Monroe be and they are hereby authorized and directed to execute the proposed lease with Sunbelt Manufacturing, Inc., and to do all other things necessary in order to implement the provisions of Ordinance Number 7080 of the City of Monroe.
      “APPROVED AND ADOPTED on this 11th day of September, 1979.”

      . The body of Ordinance 7080 is not reproduced here because of its length. The body of the ordinance details the many things mentioned in the title which reads:
      “An ordinance authorizing the execution and delivery of a Lease Agreement with Sunbelt Manufacturing, Inc., covering lands in the Monroe Industrial Park and industrial facilities to be constructed thereon; directing that notice of the intention of the City to execute and deliver such lease agreement be published according to law and fixing a date, time and place at which objections thereto will be received; authorizing the issuance of Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) of Industrial Revenue Bonds, Series 1979 (Sunbelt Manufacturing, Inc.) of the City of Monroe, State of Louisiana to finance such industrial facilities, authorizing the execution and delivery of an Indenture of Mortgage and Pledge to secure such bonds; providing for the sale of said bonds; approving the form of the Notice of Private Sale to be used for the sale of said bonds; acknowledging and accepting the benefits of a Guaranty Agreement; authorizing the appropriate officers of said City to execute certain of the aforementioned instruments and all other documents and certificates deemed necessary in connection therewith; applying to the Secretary of Commerce and the State Bond Commission in connection therewith; and providing for other matters with respect to the foregoing.”

      . We note parenthetically, the provisions of LRS 33:4717.2(C) that certain property may be leased by complying with laws other than LRS 33:4717.2.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    SUCCESSION of Elizabeth Gerard TEDDLIE also known as Betty G. Teddlie.
    No. 14187.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    En Banc. Rehearing Denied July 24, 1980.
    John R. Pleasant, Shreveport, for plaintiff-appellant Joan Levering Jack.
    Tucker, Martin, Holder, Jeter & Jackson by Robert McLean Jeter, Jr., Shreveport, for defendants-appellees A. Porter Teddlie and James J. Halley, Co-Executors of The Succession of Elizabeth Gerard Teddlie.
    L. Edwin Greer, Shreveport, for defendant-appellee Walter B. Levering, Jr.
    Before PRICE, HALL, and JASPER E. JONES, JJ.
   HALL, Judge.

In this ancillary probate proceeding, plaintiff, Joan Levering Jack, appeals from a judgment rejecting her demand to reduce bequests contained in the will of her mother, Elizabeth Gerard Teddlie, and to be placed in possession of her legitime of the Louisiana immovable property belonging to the estate of her mother, a Nevada domiciliary. We affirm the judgment, finding that plaintiff, in a written compromise agreement with the defendants, legatees and executors of the estate, agreed not to attack the validity of the will which purposely excluded any bequests to her, thereby precluding her present action to reduce the bequests contained in the will.

Plaintiff’s mother died testate in Nevada on June 23, 1975, survived by her husband, A. Porter Teddlie, and by two children of a previous marriage, plaintiff and Walter B. Levering, Jr. Her will purposely excluded any bequests to plaintiff. Plaintiff consulted an attorney in New York, her home state, who in turn consulted an attorney in Nevada, the purpose of the consultations obviously being to determine whether plaintiff had any claims to the estate. The attorneys looked into the validity of the will and determined that under Nevada law there was no basis on which to attack its validity. Their attention focused on the interest of the decedent in an “oil trust” which had been bequeathed to her by her aunt, Mary B. Gerard, subject to a power of appointment. An issue was raised as to whether the power of appointment had been specifically exercised in decedent’s will as required by New York law.

Negotiations were carried on between plaintiff’s attorneys and the attorneys and executors for the estate. Various proposals for compromise were made and from the outset an agreement by plaintiff not to attack the validity of the will was a suggested part of the proposed compromise. Ultimately, an agreement was reached, reduced to writing on December 17, 1975, and approved by the Nevada probate court.

In the compromise agreement, plaintiff received a one-third interest in her mother’s interest in the oil trust, her brother received a one-third interest, and a trust named in the mother’s will received a one-third interest. The compromise agreement contains the following recital:

“ . . . Said Last Will and Testament of said decedent dated August 10, 1973, made no provision therein for the decedent’s daughter, JOAN LEVERING JACK, and after a thorough review of the matter, and with the advice of counsel, JOAN LEVERING JACK has determined not to contest the validity of said Last Will and Testament.”

The agreement contains the following specific covenant and agreement:

“9. JOAN LEVERING JACK and WALTER B. LEVERING, JR. hereby waive any claim which they might have to contest the validity of the Last Will and Testament of ELIZABETH GERARD TEDDLIE dated August 10, 1973, and consent to the probate of said Will in any Jurisdiction where said probate may be necessary.”

The value of the interest received by plaintiff in the oil trust under the compromise agreement was approximately $103,-000. The value of her claimed one-fourth legitime in Louisiana immovable property is approximately $22,000.

Plaintiff contends the compromise dealt only with the oil trust and had nothing to do with plaintiff’s Louisiana legitime rights, which were never discussed by any of the parties and of which plaintiff had no knowledge at the time the agreement was made. Plaintiff further contends that the interest in the oil trust was received by her under the will of Mary B. Gerard and formed no part of Mrs. Teddlie’s estate; consequently, the value of that interest cannot be considered in determining whether plaintiff’s legitime in decedent’s Louisiana property has been satisfied.

Defendants contend plaintiff’s agreement not to question the validity of decedent’s will amounts to an agreement not to question or seek to reduce the bequests contained therein. Defendants point out that even if plaintiff and her attorneys were unaware of the Louisiana law of forced heirship, compromise agreements are not vitiated by errors of law. Defendants argue that plaintiff and her attorneys were aware that the decedent had property in many states, including Louisiana, as evidenced by the agreement not to attack the validity of the will in any jurisdiction where it might be probated. Finally,t defendants contend the interest plaintiff received in the compromise devolved from the estate of Mrs. Teddlie because the power of appointment contained in the will of Mary B. Gerard is invalid and considered as not written in Louisiana, with the result that as to Louisiana property, the interest in the oil trust belonged to Mrs. Teddlie free of the power of appointment. Consequently, defendants argue, the value of the interest received by plaintiff in the compromise exceeded and satisfied her legitime in the Louisiana property.

Because we view the compromise agreement as determinative of the case, it is unnecessary to discuss the issues relating to the power of appointment and satisfaction of the legitime.

The applicable law concerning transactions and compromises is set forth in the following articles of the Civil Code:

LSA-C.C. Art. 3071:
“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
“This contract must be reduced into writing.”
LSA-C.C. Art. 3073:
“Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
“The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises."
LSA-C.C. Art. 3078:
“Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”
LSA-C.C. Art. 1846:
“Error in law, as well as error in fact, invalidates a contract, where such error is its only or principal cause, subject to the following modifications and restrictions:
“ . . . 2. A contract, made for the purpose of avoiding litigation, can not be rescinded for error of law. ...”

It is a general proposition in Louisiana that compromises are favored in the law. By use of this device potential litigants can reach a satisfactory resolution of their differences without undergoing an often expensive and time-consuming lawsuit. It is in the interest of the state that there be an end to or an avoidance of litigation. Such settlements are not invalidated lightly in the absence of bad faith, error, or fraud. See Succession of LaHaye, 361 So.2d 1351 (La.App. 3d Cir.1978).

The meaning and effect of a compromise agreement is determinable on the principle that the contract must be construed as a whole and in the light of attending events and circumstances. Fitzgerald v. Hyland, 199 La. 381, 6 So.2d 321 (1942); Green v. James, 295 So.2d 921 (La.App. 1st Cir.1974), writ refused 299 So.2d 792 (1974).

Compromises whereby an heir has given up his rights in a succession have been upheld in numerous cases. See Cochran v. Cochran, 46 La.Ann. 536, 15 So. 57 (1894); Succession of LaHaye, supra.

In return for the interest in the oil trust, plaintiff agreed to waive any claim to contest the validity of the will and consented to its probate in any state. In effect, she waived all other claims to her mother’s estate, which was totally disposed of by her will. By agreeing not to contest the validity of the will, plaintiff agreed not to contest any provision or bequest contained in the will, or to contest any provision or bequest being given full force and effect as written.

Although a suit to “reduce” a legacy may not in technical language be an attack on the “validity” of the legacy, it amounts to the same thing. This action is, in actual effect, an attack on the validity of the bequests contained in the will to the extent that the bequests exceed the legitime.

It matters not that plaintiff might have been unaware of her forced heirship rights in Louisiana and might not have had a specific, conscious intent to waive those rights. A compromise cannot be attacked on account of an error of law. Further, as noted above, the language of the compromise agreement expresses an intent on the part of plaintiff to waive any claims she might have had to contest the will or any part thereof. The expressed intent was to waive “any claim”, expressed in a general manner without limitation, which plaintiff could assert only by contesting the will or its provisions. The “differences” compromised were any claims plaintiff might have as opposed to the provisions of the will which left all of decedent’s property to others. There is no language in the agreement to indicate that any of the parties intended anything other than to settle all rights and claims plaintiff may have had to her mother’s estate.

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

Affirmed.


author: FRED W. JONES, Judge.

text:
    Marie WALL, Plaintiff-Appellee, v. VILLAGE OF TALLULAH, Defendant-Appellant.
    No. 14188.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    En Banc. Rehearing Denied July 24, 1980.

      Raymond L. Cannon, City Atty., Tallulah, for defendant-appellant.
    Voelker, Ragland, Brackin & Crigler by James C. Crigler, Jr., Lake Providence, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

Mrs. Marie Wall, a 46 year old widow, filed suit on October 11, 1977, against the Village of Tallulah, Louisiana, for damages for personal injuries allegedly sustained on October 15, 1976 when she tripped and fell over a raised portion of the sidewalk adjoining South Elm Street in Tallulah. Defendant municipality answered, denying liability, and pleading contributory negligence as a bar to plaintiff’s demands. Later, the defendant filed a third party demand against G. R. Whetstone, owner of the premises traversed by the sidewalk in question. It was alleged that Whetstone was negligent in failing to maintain control of a tree situated on his property, roots from which ran under the sidewalk and caused its elevation. Plaintiff subsequently amended her petition to add as a defendant Commercial Union Assurance Company (“Commercial Union”), Whetstone’s liability insurance carrier.

Plaintiff’s suit as to Commercial Union was dismissed on May 2,1979, pursuant to a joint motion of the parties because of a settlement which had been effected under which plaintiff released Commercial Union and its assured from further liability, but reserved all rights against the Village of Tallulah. Because of this development, Whetstone then moved for a summary judgment as to the third party demand against him filed by the Village of Tallulah. Judgment was rendered sustaining this motion, eliminating Whetstone from the litigation.

Trial on the merits of plaintiff’s claim against the Village of Tallulah was held on May 24, 1979. After completion of this proceeding the trial judge filed written reasons for judgment in which she found the Village of Tallulah liable for the defective sidewalk. She further concluded that Whetstone was negligent in failing to prune his tree limbs to assure that they would not obscure light from an adjacent municipal street fixture. Consequently, because of the prior settlement between plaintiff and Whetstone’s insurer, the damage award of $30,000.00 was reduced by one-half to $15,-000.00.

The Village of Tallulah appealed from this judgment. Plaintiff answered the appeal, asking for an increase in the damage award with no deduction because of the settlement with Commercial Union.

The record reflects that on the evening of October 15, 1976 at about 9:30 o’clock plaintiff was walking home from a high school football game down a sidewalk that ran parallel to South Elm Street in Tallulah. She had never walked down this sidewalk before. When plaintiff reached a point on the sidewalk in front of Whetstone’s residence she tripped over an elevated portion of the sidewalk and fell forward with considerable force on her face, suffering multiple injuries. Although a street light was positioned about 35 or 40 feet from the place where plaintiff fell, the illumination from this fixture was partially obscured by limbs of a large tree located on Whetstone’s property about six feet from the inner edge of the sidewalk.

The evidence showed that roots from the described tree ran under the sidewalk and that pressure from the roots caused the elevation of the portion over which plaintiff tripped. The surface of the raised portion of the sidewalk was uneven, with a protrusion of about two inches on the street side and about four inches on the side next to Whetstone’s residence.

Injuries sustained by plaintiff as a result of the fall included cracked ribs, dislocation of the ball socket joint of the jaw, a drooping eyelid, loosening of several teeth and damage to facial nerves. Plaintiff consulted and was treated by a number of physicians. She had to undergo several operations on her teeth and was fitted with a partial plate to alleviate this particular problem. She was still experiencing headaches at the time of the trial on the merits. Because of continuing medical problems plaintiff was required to use all of her sick leave and a substantial part of her annual leave.

Liability of Village of Tallulah

As pointed out in Snow v. City of Shreveport, 287 So.2d 647 (La.App. 2nd Cir. 1973):

“A municipality has an obligation to maintain public sidewalks paralleling its streets in a reasonably safe condition for pedestrians using them. This obligation encompasses the duty to locate and repair defects that are likely to cause injury to those lawfully using the sidewalks.”

Elaborating upon the legal principles governing this issue, the court in St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964) stated:

“In order to assess liability in a matter such as the instant one, it must be shown (1)that the unsound condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent person, and (2) that the municipality had notice either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.”

It is apparent from the evidence presented in this case that the raised portion of the sidewalk over which plaintiff tripped, because of the height of the elevated part in relation to the lower section of the sidewalk from which plaintiff stepped, and the uneven surface of the projection, constituted a patently dangerous condition for the ordinarily prudent person, particularly at night.

The described defect had, according to the weight of the evidence, been in existence to some extent for more than thirty years. Of course, as the roots grew the elevation would have become progressively more pronounced. Since it was not the practice of municipal employees to regularly inspect its sidewalks, defendant may not have had actual notice of the defect. However, because of the established length of time of its existence, defendant must be held to have possessed constructive notice of the trap to the unwary.

With reference to defendant’s plea of contributory negligence, the following pertinent comment relative to the standard of care to be exercised by pedestrians on public sidewalks is enunciated in White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949):

“. . . Such ways of passage are intended for public use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.”

Plaintiff testified that at the time of the accident she was walking at a moderate pace, looking ahead in a normal manner. Mr. and Mrs. Jeff Goza, who were walking 15 or 20 feet behind plaintiff, corroborated this testimony. Defendant presented no evidence to the contrary. Plaintiff was not required to anticipate a dangerous defect in the sidewalk. Since she was exercising ordinary care, it is deemed that she was free of contributory negligence.

For the reasons stated, we conclude that the Village of Tallulah was negligent in failing to correct the defective sidewalk and is liable to plaintiff for the injuries resulting from her tripping and falling on the sidewalk.

Quantum

Since there was no clear abuse by the trial court in fixing the amount of damages to which plaintiff was entitled, that portion of the lower court judgment will not be disturbed. See Reck v. Stevens, 373 So.2d 498 (La.1979).

Reduction of Award

As previously noted, the trial judge found that both the Village of Tallulah and Whetstone were negligent and, therefore, solidarily liable to plaintiff for her damages. Appellee contends that Whetstone was not guilty of negligence which was a proximate cause of plaintiff’s accident and, consequently, the award to plaintiff should not have been reduced by one-half. However, it is conceded that the holding of this court in the recent case of Wall v. American Employers Ins. Co., 377 So.2d 369 (La.App. 2nd Cir. 1979) (writs granted January 1980) appears to militate against the requested relief.

The pertinent portion of Wall ruled that where a plaintiff alleges that two or more defendants were negligent and solidarily liable, those allegations are binding upon the plaintiff. As a result, the latter may not later assert that a defendant with whom plaintiff settled prior to judgment was not actually a joint tortfeasor for the purpose of defeating the claim of a defendant cast in judgment for a proportionate reduction of the judgment.

In this case the plaintiff did not allege facts which amounted to a “judicial confession” but simply asserted a legal conclusion that Whetstone was strictly liable as the owner of the tree with the offending roots. Wall is, for that reason, distinguishable from this case and not decisive of this particular issue. This necessitates an inquiry into the possible negligence of Whetstone.

It was pointed out in Snow, supra, that “tort liability against the adjoining property owner results only when the adjoining property owner actually created or caused the defect involved.” It was undisputed in this case that the defective sidewalk was caused by pressure from tree roots. It was the responsibility of the municipality, and not that of Whetstone, to maintain the sidewalk and correct the defect. Because of the remoteness of the relationship between the tree owner, the growth of the tree roots and the resulting defect in the sidewalk, it cannot be logically held that Whetstone actually “created or caused the defect involved.”

Appellant argues that Whetstone should be held responsible under the doctrine of strict liability as applied in Loescher v. Parr, 324 So.2d 441 (La.1975), which found the owner of a diseased tree liable for damages to an automobile across which the tree fell. However, as noted in that case, strict liability is imposed because of the legal relationship between the defendant and the “thing whose . . . defect creates an unreasonable risk of injuries to others.” In this case, the defect was not in the tree but was in the sidewalk, which was under the control of the Village of Tallulah, not Whetstone. For this reason, the doctrine of strict liability is not applicable.

With reference to the contention that Whetstone was negligent because his tree limbs obscured light from the street fixture, the only evidence in the record specifically addressing this issue is a stipulation of the parties that Whetstone had pruned his tree. There was no showing that further pruning of the tree would have substantially improved illumination of the involved sidewalk area. Therefore, the evidence does not justify a holding that Whetstone failed to properly prune his tree or, if so, that this failure constituted negligence which was a proximate cause of plaintiff’s accident.

We conclude that the sole proximate cause of plaintiff’s mishap was the negligence of the Village of Tallulah in failing to correct the defect in the sidewalk. It follows that the trial judge erred in deducting one-half of the damage award because of the settlement between plaintiff and Whetstone’s insurance carrier.

Conclusion

For the reasons stated, the judgment of the trial court is amended to increase the award from $15,000.00 to $30,000.00. Therefore, there will be judgment in favor of plaintiff, Marie Wall, against the Village of Tallulah, for the sum of $30,000.00, with legal interest thereon from October 11, 1977, until paid, and all costs.


author: MARVIN, Judge.

text:
    In the Interest of Glenn Francis MAY.
    Nos. 14-189, 14-202.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Robert L. Raborn, Baton Rouge, for Louisiana Department of Health and Human Resources, applicant-respondent.
    Nelson, Hammons & Johnson by Brian D. Smith, Shreveport, for Kenneth J. Roberts and Renate Rosel Roberts, applicants-respondents.
    Allen Doyle May and Alene Dale May, in pro. per.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In July 1977 the parents voluntarily surrendered to the defendant state agency the custody of their 10-year-old son for the purpose of enabling the child to receive adequate care and protection under what is known as the foster care program. See LRS 9:422.3 — 422.12, LSA-CJP Art. 17. The judgment or order of the Juvenile Court (Wards One and Two, City Court of Bossier City) stated that the child is “ . . . to be kept within the jurisdiction of this court pending further orders.”

In 1979 the state agency removed the child from foster care under plaintiffs, Mr. and Mrs. Roberts, to another foster care home. The Robertses obtained a voluntary act of surrender from the natural parents (May) and sued in the 26th Judicial District Court of Bossier Parish for custody and to effect rescission of the July 1977 order placing custody in the agency. Mr. and Mrs.May joined Mr. and Mrs. Roberts as plaintiffs in that suit. The district court declined to quash or to limit a subpoena duces tecum directed to the agency to produce the agency’s ease record of the minor. LRS 46:56.

On the State’s application for writs, we noticed the lack of subject matter jurisdiction and ordered the proceedings transferred to the City Court of Bossier City, sitting as a Juvenile Court. State v. Nugent, 212 La. 382, 31 So.2d 834 (1947); State ex rel. Paul v. Dept. of Welfare, 166 So.2d 7 (La. App. 3d Cir. 1964).

After the transfer, plaintiffs again moved to enforce the subpoena. After the Juvenile Court examined the sealed case records of the agency, that court ruled that the attorneys could inspect and review the case record. The agency applied for, and we granted, writs of review on this issue of confidentiality. LRS 46:56. Plaintiffs then applied for and we granted writs of review on plaintiffs’ contention that the Juvenile Court erred in not granting them judgment on the pleadings on the authority of Dillon v. State, 336 So.2d 1066 (La. App. 2d Cir. 1976).

When the State seeks to declare a child delinquent, in need of supervision, or in need of care, in adversary proceedings against either the natural parents or someone to whom the natural parents have surrendered custody, the issue of confidentiality of the ease record of the minor might then properly arise.

The State, however, has not separately filed, or converted these proceedings into, an adversary proceeding to have the child either adjudicated delinquent, in need of supervision, or in need of care in accordance with the Code of Juvenile Procedure or LRS 14:403. In Dillon we said:

“The State did not introduce a judgment into the record which makes such a determination against the parents. Furthermore, we note the absence of competent evidence in this record which would support such a finding against the Fontenots or the Dillons in this case. See State in the Interest of Prestridge, 323 So.2d 868 (La. App. 2d Cir. 1976). Since there has been no judicial determination in a contradictory hearing that the interests of the children require continued State intervention, we hold that Mrs. Fontenot’s voluntary relinquishment of custody to the State in 1973 does not in itself forever bar her from exercising her parental rights.
“An incidental issue is whether the grandparents of the children, plaintiffs herein, are able to assert this right of the parents to the custody of the children. We are of the opinion that by virtue of the August 23, 1974, authentic act executed by the Fontenots, which relinquishes custody to the Dillons, this suit may be viewed as a request by the parents for the return of their children to the Dillons, grandparents of the children.” 336 So.2d at 1069. Our emphasis.

That holding is decisive of this case. All orders and judgments of the lower court are negated, and

IT IS THEREFORE ORDERED that custody of Glenn Francis May be restored to his natural parents, Allen Doyle May and Alene Dale May.

IT IS FURTHER ORDERED that the agency’s case record and all other material produced in response to the subpoena duces tecum remain confidential and be forthwith returned by the lower court to the State agency.

All costs here and below are assessed to the State.


author: JASPER E. JONES, Judge.

text:
    CITY OF MONROE, Plaintiff-Appellee, v. Robert A. EVANS, Defendant-Appellant.
    No. 14193.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Charles D. Patten, III, Asst. City Atty., Monroe, for plaintiff-appellee.
    Joseph A. Cusimano, Jr., Farmerville, for defendant-appellant.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Appellant, Robert A. Evans, appeals an order of the trial court finding him in contempt of a June 5, 1979 judgment rendered by the Fourth Judicial District Court for the Parish of Ouachita. We reverse the contempt conviction.

These lengthy proceedings commenced May 11, 1977 when the City of Monroe filed an expropriation proceeding against Evans. The object of the suit was the expropriation of a cottonwood tree located on Evans’ property. The tree was alleged to be blocking the clear zone easement required by the Federal Aviation Administration for proper air navigation in the area of the Monroe Municipal Airport. Approximately I/2 hour before trial on Feb. 15, 1978, a cash deed that purported to be a transfer of the subject property from Evans to one John D. Bolton was filed and recorded. The trial court apparently denied Evans’ Motion to Dismiss (based upon this change in ownership), but the matter was not taken up again until June 5, 1979 when a Joint Motion to Dismiss was filed which contained the following stipulation:

“It is further agreed to by all parties that the tree in question shall be owned by the City of Monroe in its entirety.”

On this date a judgment was rendered which provides:

“Considering the above and foregoing Joint Motion To Dismiss:
Let the matter be dismissed at the cost of Plaintiff and let the City of Monroe be declared owner of the tree which is the subject of the suit.”

A review of this judgment establishes it did nothing more than declare the City to be the owner of the tree.

On September 24, 1979, the City filed a Rule For Contempt alleging that Evans should be punished for “refusing to comply with the order of this Honorable Court”. The order here referred to was the one quoted above which was rendered June 5, 1979. Evans had prompted the City’s rule by refusing to allow the Northeast La. Tree Service, who was employed by the City, to cut down the tree. When the Tree Service representative came to Evans’ property in order to view the tree and make preparations for its removal the following day, Evans proceeded to chain a monkey in the tree and then to park two trucks under the tree. The City alleged Evans’ refusal to allow the City to cut down the tree constituted a contempt of court.

The trial court found Evans to be in contempt of the June 5, 1979 order and ordered him placed in the Ouachita Parish jail until he permitted the City to cut down the tree.

On appeal the issues are (1) is this contempt conviction reviewable on appeal? and (2) is the contempt conviction valid?

The majority of the jurisprudence holds that a review of a contempt conviction may be had only by application for supervisory writs. See Pearce v. Dozier, 181 So.2d 432 (La.App.2d Cir. 1965); The Advertiser, Div. of Independent, Inc. v. Charles B. Tubbs, 199 So.2d 426 (La.App.3d Cir. 1967); Wall v. Wall, 230 So.2d 420 (La.App.1st Cir. 1969); Pasternack v. Lubritz, 280 So.2d 352 (La.App.3d Cir. 1973); Matter on Carter, 357 So.2d 1175 (La. App.3d Cir. 1978). However, we have found a substantial number of cases wherein contempt convictions are reviewed on direct appeal, as well as cases in which the contempt convictions have been reviewed on appeal while the appellate court was reviewing other related appealable matters. See Lambert v. Adams, 347 So.2d 883 (La. App.3d Cir. 1977); Weeks v. Weeks, 349 So.2d 1008 (La.App.2d Cir. 1977); Wright v. Dept. of Hwys., 359 So.2d 635 (La.App.1st Cir. 1978); Rosselli v. Rosselli, 352 So.2d 370 (La.App.4th Cir. 1977); N. O. Fire Fighters Asso. Local 632 v. City of N. O., 260 So.2d 779 (La.App.4th Cir. 1972); Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir. 1979).

Evans did not employ an attorney until after he appealed the contempt judgment in proper person. We have the authority to “do justice” on the record, LSA-C.C.P. art. 2164 and comments, whether we treat Evans’ efforts to obtain review as an appeal or as an application for the exercise of our supervisory jurisdiction. Accordingly, we will review the correctness of the judgment complained of.

Our provisions for contempt are found in LSA-C.C.P. arts. 221 and 224. If appellant is guilty of a contempt, his violation falls under Art. 224(2), viz., a constructive contempt consisting of “willful disobedience of any lawful judgment, order, mandate, writ, or process of the court”. The City’s allegation in its rule for contempt is that appellant should be punished for “refusing to comply with the order of this Honorable Court.” Therefore, Evans’ violation, if any, is purported to be his refusal to comply with the court order in question, that is, the order of June 5, 1979 declaring the City to be the owner of the tree. Nothing more was contained in the court order here alleged to have been violated than the declaration of ownership. We hold that under the facts defendant-appellant cannot be held in contempt and the order of contempt must be dissolved.

The jurisprudence interpreting LSA-C.C.P. 224(2) and its legislative predecessors is clear that a party cannot be held in contempt unless he has been given a direct order of the court and has refused to honor this direct order. Thus in State ex rel Hero, 36 La.Ann. 352 (1884), the contempt order was dissolved when the Supreme Court found that the only court order which had been given was one directing the sheriff to sequester certain property. The fact that Hero refused to deliver the movables in question did not subject him to a contempt order, as there was no direct order to Hero ordering him to turn over the property. This case was followed in State ex rel. Duffy & Buran v. Civ. Dist. Ct. For Par. of Orl., 112 La. 182, 36 So. 315 (1904), in which the Supreme Court stated (in regard to the relators’ being held in contempt for violation of a court order directing the sheriff to sequester certain monies which the relators refused to turn over to the sheriff) 36 So. at pp. 319-320:

“It is not every act rendering ineffectual an order of court which can be followed by a peremptory order from the court to the party who has brought about that result to replace matters as they were, and, failing so to do, to be committed to prison. The following of such a course of action and the infliction of such a penalty is one for which the court should be able to find legal authority.”

More recently, in Lambert v. Adams, supra, the Third Circuit cited the above two cases as well as Article 5, § 2 of the 1974 Louisiana Constitution and LSA-C.C.P. 221 and 224(2) when reversing appellant’s contempt conviction. Appellant in Lambert, supra, was held for contempt for violating a judgment dismissing his petitory action, which judgment was only an adjudication that appellant did not own the property in question. When appellant failed to vacate the property, appellees filed suit to have him held in contempt. However, there was never any direct order to appellant to vacate. Because the object of a contempt proceeding is vindication of the authority and dignity of the court, and not for the benefit of the litigants, a party is not in contempt of a court order unless he willfully disobeys a direct court order issued prior to a contempt rule. Even if the acts of the litigant frustrate the opposing party, there is no contempt committed until the litigant flaunts a specific order of the court. Lambert, supra, held that since prior to the contempt rule there was no direct order by the trial court directing appellant to vacate, his failure to leave the premises did not impair the dignity of the court, and therefore the authority of the court did not need to be vindicated. The appellate court recalled and set aside the contempt adjudication.

Because of the relative sparsity of Louisiana jurisprudence on the subject of contempt convictions based upon an alleged violation of an order, we looked to the law of our sister states in order to better evaluate appellant’s contempt conviction. Corpus Juris Secundum provides at pp. 31-32 of Vol. 17 as follows:

“To justify adjudging one guilty of contempt for alleged violation of an order, it must contain a mandatory or prohibitive provision and prescribe definitely what he is to do, . . .”

The Iowa case of Lynch v. Uhlenhopp, 78 N.W.2d 491, 248 Iowa 68 (1956), discusses at length the law of contempt citing authorities from Colorado, Ohio New York and California for the rule that before an adjudication of contempt can be made there must be a violation of a judgment which clearly directs what a party is or is not to do. See also McMullin v. City & County of Denver, 242 P.2d 240, 125 Colo. 231 (1952) wherein the court refused to hold defendant guilty of contempt of a judgment which did nothing more than adjudicate property rights. The court said:

“The violation of property rights and the right of property ownership, even when such rights have been decreed by a court with full jurisdiction, does not constitute contempt of court. If the property rights of plaintiff have been interfered with, our laws provide appropriate procedure and remedies therefor.
Our reading of the various cases cited, discloses that where decrees have been contemptuously violated, such decrees contained either or both prohibitory or mandatory provisions. If we recognize and approve the attempt here to change a quiet-title decree into an injunctive decree, the disastrous results would be interminable.” Id. 242 P.2d at p. 242.

See also Uservo, Inc. v. Seiking, 28 N.E.2d 61, 217 Ind. 567, 1940, which stated 28 N.E.2d at p. 63:

“In Kelly v. City of Cape Girardeau, 230 Mo.App. 137, 89 S.W.2d 693, 696, the court said: ‘It is an accepted legal proposition that for the decree of a court to suffice to be the basis of a charge of contempt by reason of a party’s disobedience to or noncompliance with it, it must be specific and definite so as to inform the party to be bound thereby what he is to do or what he is not to do. Magel v. Gruetli Benivolent Society of St. Louis, 203 Mo.App. 335, 218 S.W. 704’ ”.

Under the Louisiana and common-law jurisprudence appellant cannot be held in contempt of the order declaring the City to be the owner of the tree, for his acts of placing the monkey in the tree and placing the trucks under the tree are not willful disobedience of this order. There has been no direct court order telling Evans to remove these objects or not to place these objects in the path of the tree, or to do no act that interferes with the City’s removal of the tree. While it is true that appellant’s acts have frustrated and hindered the City, nevertheless, his acts did not impair the dignity of the court.

The City should have obtained an order directing Evans not to interfere with the removal of the tree. If Evans had then performed the acts which he performed in this instance a contempt proceeding would have been appropriate. Since the City failed to obtain such an order and because there was no direct order for which Evans could have been held in contempt, the contempt conviction is fatally defective. We REVERSE the judgment holding Evans in contempt of court and set aside the contempt sentence.

      . LSA C.C.P. 2164 — The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

      . LSA-C.C.P. 221 — A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
      Contempts of court are of two kinds, direct and constructive.

      . LSA-C.C.P. 224(2) — A constructive contempt of court is any contempt other than a direct one.
      Any one of the following acts constitutes a constructive contempt of court:

      (2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court;

      .Art. 5, § 2 — A judge may issue writs of habe-as corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court. Exercise of this authority by a judge of the supreme court or of a court of appeal is subject to review by the whole court. The power to punish for contempt of court shall be limited by law. [emphasis supplied].


text:
    John D. WALLACE, III, Plaintiff, v. BOYTE ENTERPRISES, INC., et al., Defendants-Appellants and Appellees.
    No. 14194.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.
    Hayes, Harkey, Smith & Cascio by Joseph D. Cascio, Jr., Monroe, for defendant-appellant — Empire Fire and Marine Insurance Co.

      Davenport, Files, Kelly, Marsh & Graham by William G. Kelly, Jr., Monroe, for defendants-appellees — Boyte Enterprises, Inc. and Home Indemnity Co.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

Issues of liability insurance coverage are raised by this appeal, and answer to the appeal, from a judgment partially granting and partially denying a motion and counter-motion for summary and/or declaratory judgment. Parties to this phase of the litigation are Empire Fire and Marine Insurance Company, liability insurer of MTM Trucking Service, Inc., and Home Indemnity Company, liability insurer of Boyte Enterprises, Inc., and Boyte. Each of these parties is a defendant, along with other parties, in a damage suit brought by plaintiff Wallace who allegedly was injured when he was run over by a truck owned by B. T. Moore or MTM and driven by John Gentry, a regular or general employee of Moore/MTM.

The truck and driver were furnished by Moore/MTM to Boyte under an arrangement whereby Boyte paid Moore/MTM on an hourly basis for the use of the truck and driver. Boyte, in turn, was using or furnishing the truck and driver to haul and deliver materials to a construction site where the accident happened, under an arrangement with Red Rock Construction Company.

Home and Boyte filed a motion for summary and/or declaratory judgment seeking a declaration that: (1) Boyte is an insured of Empire under the policy issued to MTM; (2) Empire owes Boyte a defense; and (3) Empire is Boyte’s primary insurer and as such is obligated to pay any judgment in favor of plaintiff against Boyte, subject only to its limits of liability.

Empire filed a counter-motion for summary and/or declaratory judgment seeking: (1) rejection of the claims and demands of Home and Boyte; (2) judgment declaring Boyte excluded from coverage under the Empire policy; (3) alternatively, that Empire’s policy be declared excess insurance over the policy of Home; (4) alternatively, that Empire and Home be declared co-insurers, each providing equal primary coverage up to their respective limits of liability; (5) alternatively, that Home and Empire be declared to provide coverage on a pro rata basis; and (6) that Empire be declared to have no responsibility to afford Boyte a defense.

Judgment was rendered decreeing that: (1) the relief sought by Home and Boyte be denied; (2) Boyte and its employees are excluded from coverage under the Empire policy issued to MTM; (3) Empire does not have any obligation to defend Boyte; (4) neither Moore nor MTM, nor any employee thereof, is covered by the insurance policy issued by Home to Boyte; (5) the insurance afforded in each of the named policies as excess insurance is offsetting; and (6) all other claims for relief prayed for by Empire be pretermitted pending trial on the merits.

Empire appealed and Home and Boyte answered the appeal. We find no error in the judgment and affirm.

On appeal Empire contends: (1) the trial court correctly denied all relief sought by Home and Boyte; (2) the trial court correctly declared that Boyte and its employees are excluded from coverage under Empire’s coverage; (3) the trial court correctly ruled Empire does not owe Boyte a defense; (4) the trial court erred in declaring that neither Moore/MTM nor any employee thereof is covered by Home’s policy; (5) the trial court erred in declaring the insurance afforded in each of the policies as excess insurance is offsetting; and (6) the trial court erred in failing to declare that Home provides primary coverage to Boyte, Moore/MTM, and Gentry and that Empire provides excess coverage to its named insured only.

Home contends: (1) the trial court correctly ruled that Home does not provide coverage to either Moore/MTM or to its employees; and (2) the trial court erred in ruling that the employees of Boyte are excluded from coverage under the Empire policy issued to MTM.

As it relates to the issues presented, Empire’s policy contains the following exclusion or exception to the coverage generally afforded to its named insured and other persons using the insured’s vehicles with the insured’s permission and consent:

“In consideration of the premium charged for the policy to which this endorsement is attached, it is understood and agreed that no coverage is extended to any person, firm or organization using the automobile, or legally responsible for the use of the automobile, pursuant to any lease, contract of hire, bailment, rental agreement or any similar contract or agreement either written or oral, expressed or implied, the terms and provisions of the policy notwithstanding, except that this limitation does not apply to the insured named in Item 1 of the declarations of this policy.
“In the event the automobile insured by this policy is being used or maintained pursuant to any lease, contact of hire, bailment, rental agreement or any similar contract or agreement, either written or oral, expressed or implied, the insurance afforded the NAMED INSURED shall be EXCESS INSURANCE over any other insurance.”

The Home policy contains the following exception or exclusion to the general coverage afforded to the named insured and any other person while using an owned or hired automobile with the permission of the named insured:

“None of the following is an insured: “. . . (ii) the owner or lessee (of whom the named insured is a sub-lessee) of a hired automobile or the owner of a non-owned automobile, or any agent or employee of any such owner or lessee;

The trial court correctly denied the relief sought by Home and Boyte. Under the exclusion contained in Empire’s policy, no coverage is granted to “any” person, firm or organization using or responsible for the use of a scheduled vehicle under a lease or similar arrangement, except Empire’s named insured, MTM. The exclusion obviously applies to Boyte and no coverage is afforded to Boyte. It follows that no defense is owed by Empire to Boyte. Empire is not obligated to pay any judgment against Boyte, either as primary or excess insurer.

Although neither party prayed for judgment declaring that Moore/MTM is either included in or excluded from Home’s coverage, the judgment declares that Moore/MTM is excluded. The exclusion in the Home policy of the owner of a hired vehicle is clear and excludes Moore/MTM. The Home policy does not contain inconsistent provisions, as contended by Empire, any more than does the Empire policy. Each contains express exclusions or exceptions to the general provisions of coverage.

In rejecting Home’s demands and in holding that Empire does not afford coverage to Boyte or owe Boyte a defense, the district court granted all of the relief sought by Empire in the main demand contained in its motion for summary judgment. Empire’s other demands that Empire’s policy be declared excess to that of Home, that Empire and Home be declared co-insurers providing equal primary coverage to their respective limits, and that Empire and Home be declared to provide coverage on a pro rata basis, are all set forth as alternative demands in the event Empire was found to provide coverage to Boyte. It would seem that it was unnecessary to deal with Empire’s alternative demands since its main demands were granted. However, the district court held that the excess clauses were offsetting and Empire complains of this ruling on appeal, so the issue is before us.

Each policy respectively provides that the coverage afforded the insured under that policy is excess over any other insurance. Since the Empire policy does not afford insurance coverage to Boyte and the Home policy does not afford insurance coverage to MTM, neither Boyte nor MTM is afforded “other insurance” so as to trigger the applicability of the excess insurance clauses. Each insurer affords primary coverage to its named insured and no insur-anee, excess or primary, to the insured of the other company. Consequently, the excess insurance provisions do not come into play, are not applicable, or, as stated in the judgment, are offsetting.

Although neither party prayed for judgment relating to coverage of the named insured’s employees, the judgment mentions the named insured’s employees. Home contends that the judgment should not have stated that Boyte’s employees are excluded from the Empire policy coverage. Empire contends that the judgment should not have stated that MTM’s employees are excluded from the Home policy coverage. We find no error in this respect. The “any person” exclusion in the Empire policy would necessarily include, but not be limited to, Boyte and Boyte’s employees. The Home policy specifically excludes the owner of a hired automobile and the owner’s employees. The Empire policy does not provide coverage to Boyte’s employees, as such, and the Home policy does not provide coverage to MTM’s employees, as such.

This may leave unresolved the question of whether Empire affords coverage to Gentry, the driver of the truck, as a general employee of Moore/MTM, and whether Home affords coverage to Gentry as a special employee of Boyte. See LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978). These questions need not be resolved at this time because they are not posed by the pleadings and because the precise facts relating to Gentry’s employment status and the respective arrangements between Moore/MTM, Boyte, and Red Rock are not fully developed or disclosed on this motion for summary judgment. Further, the questions may have no significance in the progress or outcome of this litigation.

The judgment of the district court is affirmed. Costs of the appeal are assessed one-half to Empire and one-half to Home and Boyte.

Affirmed.


text:
    SUCCESSION of Edwin Lamar RAMSEY, Kenneth William Mitcham, Provisional Administrator, Plaintiff-Appellee, v. Ray Samuel RAMSEY and James K. Ramsey, Defendants-Appellants.
    No. 14195.
    Court of Appeal of Louisiana, Second Circuit.
    June 10, 1980.

      Meadors & Meadors by George H. Mea-dors, Homer, for plaintiff-appellee.
    Smitherman, Lunn, Hussey & Chastain by W. James Hill, III, Shreveport, for defendants-appellants.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Kenneth W. Mitcham, grandson of the decedent, Edwin Lamar Ramsey, sues for collation and an accounting to be made by Ray S. Ramsey and James K. Ramsey, sons of the deceased.

Edwin Ramsey died, leaving as his forced heirs his two sons and his grandson, who was forced heir by representation of his mother, the decedent’s daughter. Prior to his death, decedent had donated to his sons a lh interest each in a I68V2 acre tract located in Claiborne Parish. Decedent retained the remaining V3 interest. Decedent died in 1977 in Texas leaving a valid will, which was admitted to probate in Texas and Louisiana. In this will, decedent left Kenneth $7,000 and left all remaining property to Ray and James. The I68V2 acre tract in Claiborne Parish is the principal succession asset in Louisiana. Since the inter vivos donations were made in 1976, Ray and James have received oil and gas royalties from production attributable to their /a interest in the tract. They have also been paid all royalties for their /3 interest from the decedent’s death in 1977 up until the present. The royalties due for the decedent’s Vb interest were also paid to Ray and James until February 1978 (gas) and March 1978 (oil). The payment of these royalties was suspended by the oil company following these dates and the funds have since been held by the oil company.

Plaintiff’s suit sought to compel defendants to collate the property donated to them by decedent and to account for all oil and gas royalties received by them since the time of the donations (May 1976). The suit was filed more than one year after the death of decedent.

Ray and James answered the petition admitting that collation was due but alleged that Kenneth’s forced portion is %ths (Vis of %) interest in decedent’s succession and this is the total amount he is entitled to. Defendants alleged they desire to collate their donations by taking less in decedent’s Louisiana succession, which could be accomplished, since the succession owns a % interest in the Louisiana property. The defendants further asserted that under LSA-C.C. Article 1515 plaintiff is not entitled to oil and gas royalties produced from his legi-time until he made formal demand for his forced portion in June 1979.

The judgment appealed from recognized that Kenneth was entitled to a /9ths interest in the Claiborne Parish tract and to all oil and gas royalties attributable to the % ths interest in this land since decedent’s death in September, 1977. The trial court also ordered Ray and James to render an accounting to plaintiff as Provisional Administrator of all oil and gas royalties they have received since decedent’s death attributable to the Va interest in the tract, which is the interest in the tract that belonged to the decedent at the time of his death.

Defendants appealed. Plaintiff neither appealed nor answered the appeal. Defendants assign no error to the provisions in the judgment recognizing plaintiff is entitled to a %ths interest in the tract of land as his legitime and they recognize he is entitled to receive the oil and gas royalties from this interest from the date of the suit.

The issues on appeal are (1) whether Ray and James must account to plaintiff as Provisional Administrator, for all the oil and gas royalties they have received since decedent’s death attributable to decedent’s V3 interest in the land, and (2) whether Kenneth is entitled to the royalties accruing on his legitime (%ths interest in the land) since the date of decedent’s death or whether he is only entitled to these funds from the date of his suit.

ARE DEFENDANTS REQUIRED TO ACCOUNT TO THE PROVISIONAL ADMINISTRATOR FOR ALL FUNDS RECEIVED FROM THE INTEREST IN THE PROPERTY BELONGING TO THE SUCCESSION?

The decedent’s will appointed Ray executor and he qualified as executor on October 5, 1977 in the Texas probate proceeding wherein the will was probated. In this proceeding he recognized that a Louisiana administration would be required.

“The property in Louisiana consists of real property including property under oil, gas and mineral production incidental to which ancillary administration will have to be later undertaken in Claiborne Parish, La.”

A Louisiana succession proceeding is provided for a non-resident who dies leaving property situated in Louisiana by CCP 3401. An executor who qualifies in a court outside of Louisiana may not act with respect to property situated in Louisiana until he qualifies as a succession representative in a court of competent jurisdiction in Louisiana. CCP 3402. Kenneth qualified as provisional administrator of his grandfather’s succession under the provisions of CCP 3111 on April 14, 1978. Though defendants probated their father’s will in Louisiana on November 13, 1979, after this suit was filed, Ray has never qualified in Louisiana as the succession representative.

Subject to exceptions not here applicable, a provisional administrator has the same duties and obligations as an administrator. CCP 3112.

Kenneth, as succession representative, is entitled to possession of all succession property, including all revenues that it has produced as he has the duty to preserve them and deposit them in a bank account in his official capacity. CCP 3211, 3221, 3222.

Though the record does not establish that debts must be paid in connection with this succession, it seems abundantly clear that attorney’s fees and taxes will have to be paid, which will require action by the provisional administrator. Ray’s Texas probate proceedings recognized the necessity of a Louisiana ancillary administration. The provisional administrator is entitled to possession of the oil and gas royalties that were collected by these defendants, belonging to the succession.

Even if there were no debts to be paid and these defendants would eventually be entitled to the ownership of all the royalties collected by them on succession property, the succession representative is still entitled to possession of these funds until the defendants are recognized as owners of these funds and sent into possession of them by a judicial order. Simpson v. Colvin, 138 So.2d 438 (La.App. 3rd Cir. 1962).

There is no error in that part of the judgment appealed from recognizing the provisional administrator as being entitled to possession of all royalties produced from the Vs of the property belonging to the succession and requiring the defendants to account for the part of these funds collected by them and to turn over these funds to Kenneth Ray Williams, in his capacity as provisional administrator of the succession.

IS PLAINTIFF ENTITLED TO THE ROYALTY FUNDS PRODUCED FROM HIS LEGITIME FROM THE DATE OF HIS GRANDFATHER’S DEATH OR ONLY FROM THE DATE OF HIS SUIT?

The decedent bequeathed unto his two sons his remaining one-third interest in the land on which there was mineral production. This legacy exceeded the disposable portion and was subject to an action of reduction by the decedent’s grandson.

The rights of the forced heir to the fruits from his legitime under these circumstances are set forth in CC 1515:

“The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.”

The jurisprudence has construed this article to provide that when the demand for reduction is made within one year of the death of the testator the forced heir is entitled to the income from his legitime from the date of donor’s death. The cases hold that when the forced heir makes his demand for reduction more than one year after the death of the donor he is only entitled to the income on his legitime from the date of demand and the legatees of the legitime are entitled to the right to retain the fruits produced until demand is made.

Cox v. Von Ahlefeldt, 30 So. 175, 105 La. 543 (1900);
Clark v. Hedden, 109 La. 147, 33 So. 116 (1902);
Succession of Mulqueeny, 253 La. 595, 218 So.2d 607 (1969);
Alexander v. Alexander, 357 So.2d 1260 (La.App. 2d Cir. 1978).

The present action commenced as a demand for collation of two inter vivos donations wherein the decedent gave to each of his two sons a one-third interest in the subject property with no indication that it was to be considered as an extra portion but the tenor of the proceedings was treated by the defendants as an action for a reduction of an excessive donation by their answer wherein they agreed to accept less from their father’s will in order to give the plaintiff his legitime, rather than collate the inter vivos donations. Plaintiff and defendants stipulated that this manner of resolving plaintiff’s claim to his legitime was agreeable and defendants in brief concede plaintiff is entitled to royalty income from the legitime from the date of his suit for collation. We therefore find the demand for collation was synonymous with a demand for reduction and conclude plaintiff is entitled to the royalty income from the date he sued for collation.

Plaintiff contends that CC 1515 is only applicable to inter vivos donations and for this reason the defendants as donees under the last will and testament are not entitled to the revenues from plaintiff’s leg-itime for the period of approximately 22 months between the date of the testator’s death and the plaintiff’s suit for reduction. Plaintiff cites no authority for this contention and our review of the jurisprudence establishes that the courts have applied this article to donations inter vivos and mortis causa without distinction. We find no merit in this contention. In the Succession of Mulqueeny, supra, we find the following statement:

“Civil Code Article 1515, which we hold to be applicable to donations both inter vi-vos and mortis causa, requires the donee to restore to the forced heir the fruits of that which exceeds the disposable portion from the date of the donor’s death until delivery if demand is made within one year. Since the forced heir here has made demand within the year, not only was her legitime to be delivered but the fruits on that legitime from the moment of death until delivery must be restored.” (218 So.2d p. 609)

The plaintiff argues that under the provisions of CC 1607 he has been in possession of his legitime since the date of his grandfather’s death and for this reason he is entitled to the fruits from the legitime since that date. This article reads as follows:

“When, at the decease of the testator, there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”

Plaintiff also cites CC Article 1608,

“Nevertheless in the same case, the universal legatee will have the enjoyment of the effects included in the testament, from the day of the decease, if the demand for the delivery has been made within a year from that period; if not, enjoyment will only commence from the day of the judicial demand, or from the day on which the delivery has been agreed upon,”

and contends there has been no demand by the appellants as legatees under the will for delivery of the bequest and for this reason the appellants cannot be entitled to possession of the fruits from the legitime for the period between the date of death and date of demand.

The plaintiff has cited no cases as authority for the application of the cited articles to the circumstances in the manner contended. We have found no cases directly in point but we find the case of Cox v. Von Ahlefeldt, supra, indirectly answers the plaintiff’s contentions. In this case plaintiffs were attempting to avoid a five year plea of prescription (CC 3542) to their action to reduce an excessive donation based upon the contention that the forced heir had been vested with seisin from the death of the testator under the provisions of CC 1607. The court quoted CC Articles 940, 1502, 1504 , and 3542 for the proposition that the donee had immediate possession of the property given because the donation was not null but only reducible and refused to apply the literal language of Article 1607, stating that to do so would “practically eliminate from our law the other provisions quoted.” The court held:

“. . . the Civil Code of this State has been interpreted to mean that the ownership and seisin of the forced heir is so far qualified that the testamentary donee of an interest including or impinging upon his legitime may lawfully hold possession as owner until such forced heir demands the reduction of the donation.” (30 So. p. 214)

The court was recognizing: that under the provisions of CC 940 the “testamentary heirs and universal legatees” were “called by law to the inheritance, immediately after . . . death’’ that though donations be excessive they are effective and not null (CC 1502) and are only subject to a demand for reduction (CC 1504). The court concluded that the provisions of these articles were paramount over CC 1607.

We conclude plaintiff’s contention that CC 1607 and 1608 are here applicable is contrary to the cited jurisprudence construing CC 1515 and contrary to the rationale of Cox v. Von Ahlefeldt and for these reasons reject plaintiff’s argument.

The plaintiff further contends that until there has been a judgment of possession recognizing the excessive donation and sending the legatees into possession, the legatees cannot be entitled to retain the fruits even though demand for the legitime was made more than one year after the testator’s death.

Plaintiff cites no authority for this contention and CC Article 1515 does not contain as a condition precedent to the donee’s right to retain the fruits under these circumstances that he has been sent into possession and none of the cases have made such a requirement. In Cox v. Von Ahlefeldt, supra, the legatees were not sent into possession by judgment and yet the forced heir was limited to the income of the legi-time from date of demand. The court there said, “But, inasmuch as the defendants in their capacity of universal legatees, were owners, entitled to possession of the property until demand was made upon them by plaintiffs, claiming in the right of the forced heir, they are liable for rents only from date of such demand.” (30 So. p. 217)

We find that even though there has been no judgment of possession, the defendants are entitled to the income from plaintiff’s legitime until the date plaintiff sued for collation and we amend the last paragraph of the judgment to read as follows so as to reflect this conclusion:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that KENNETH WILLIAM MITCHAM, forced heir of the decedent, is entitled to a Vrths interest in said I68V2 acre tract of land and any other Louisiana immovable property comprising the decedent’s estate and succession, as his legitime, together with all revenues, rents, oil and gas royalties, and other benefits of every nature and description accruing from said property since June 11, 1979.

We remand the case in order that the Provisional Administrator may discharge his duties and administer the succession in accordance with law and, at the appropriate time after payment of legal charges, distribute the succession assets to the heirs in the fractional proportions mandated by and consistent with this opinion.

      . Art. 1515.
      The donee restores the fruits of what exceeds the disposable portion only from the day of the donor’s decease, if the demand of the reduction was made within the year; otherwise from the day of the demand.

      . Art. 3401.
      When a nonresident dies leaving property situated in this state, a succession proceeding may be instituted in a court of competent jurisdiction in accordance with Article 2811.
      Except as otherwise provided in this Title, the procedure in such a succession shall be the same as provided by law for the succession of a Louisiana domiciliary.

      .Art. 3402.
      A succession representative appointed by a court outside Louisiana may act with respect to property situated in Louisiana only after qualifying in a court of competent jurisdiction in Louisiana. He shall furnish bond upon the application of any interested person for good cause shown in the same amount as an administrator, even though in the case of a testamentary succession the testament dispenses with bond.

        After such qualification the succession representative may exercise all of the rights and privileges of and has the same obligation as a succession representative originally qualified in Louisiana.

      . Art. 3111.
      The court may appoint a provisional administrator of a succession, pending the appointment of an administrator or the confirmation of an executor, when it deems such appointment necessary to preserve, safeguard, and operate the property of the succession. On the application of an interested party, or on its own motion, when such an appointment is deemed necessary, the court may appoint a qualified person as provisional administrator forthwith.

      . Art. 3112.
      A provisional administrator shall furnish security and take the oath of office required by Articles 3152 and 3158, respectively. He shall continue in office until an administrator or executor has been qualified, or until the heirs or legatees have been sent into possession.
      Except as otherwise provided by law, a provisional administrator has all of the authority and rights of an administrator, and is subject to the same duties and obligations, in the discharge of his functions of preserving, safeguarding, and operating the property and business of the succession.

      . Art. 3211.
      A succession representative shall be deemed to have possession of all property of the succession and shall enforce all obligations in its favor.

      . Art. 3221.
      A succession representative shall preserve, repair, maintain, and protect the property of the succession.

      . Art. 3222.
      A succession representative shall deposit all moneys collected by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
      On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per annum on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.

      . Art. 940.
      A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds.
      This rule applies also to testamentary heirs, to instituted heirs and universal legatees, but not to particular legatees.

      . Art. 1502.
      Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum.

      . Art. 1504.
      On the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns; neither the donees, legatees, nor creditors of the deceased can require that reduction nor avail themselves of it.

      .Art. 3542.
      The following actions are prescribed by five years:
      That for the nullity or rescission of contracts, testaments or other acts.
      That for the reduction of excessive donations.
      That for the rescission of partitions and guarantee of the portions.
      This prescription only commences against minors after their majority.


author: SWIFT, Judge.

text:
    BELLE HELENA DEVELOPMENT CORPORATION (Joseph S. Zuccaro—now substituted plaintiff), Plaintiff-Appellant, v. Aimer TURNER, Defendant-Appellee. BELLE HELENA DEVELOPMENT COPORATION (Joseph S. Zuccaro—now substituted plaintiff), Plaintiff-Appellant, v. Elvin B. TARVER, Defendant-Appellee.
    Nos. 7849, 7850.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1980.

      Patrick A. McDonough, III, Vidalia, for plaintiff-appellant.
    Roy S. Halcomb, Sr., Ferriday, for defendant-appellee.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

MOTION TO DISMISS

On May 8, 1980, we ordered the plaintiff-appellant to show cause, on or before May 20, 1980, why his appeals in the above captioned lawsuits should not be dismissed as being untimely perfected. No response has been made.

The record shows that these lawsuits were dismissed for lack of prosecution by an order dated October 11, 1979. The motion for a devolutive appeal was signed on January 11, 1980. The court minutes reflect that the above matter was finally heard on July 30, 1979. Counsel for both parties were present. After argument was presented the trial court ruled from the bench that the case would be dismissed due to five (5) year abandonment. Notice of judgment was not required in this case as it was not taken under advisement and no notice of judgment was requested by the parties. LSA-C.C.P. arts. 1913-1914.

According to LSA-C.C.P. art. 1974, the delay for applying for a new trial is seven days exclusive of legal holidays. The delay begins to run on the day after the judgment was signed.

The delay for taking a devolutive appeal, pursuant to LSA-C.C.P. art. 2087, is sixty days from the expiration of the seven day delay for requesting a new trial.

In the present case, the order of appeal was signed 90 days after the judgment was signed. It was 23 days beyond the time limit for a devolutive appeal. Accordingly, this appeal must be dismissed as being untimely.

APPEAL DISMISSED.


author: DOUCET, Judge.

text:
    Elden L. CREDEUR, Plaintiff-Appellant, v. CREDEUR CREDIT CORPORATION, Defendant-Appellee.
    No. 7588.
    Court of Appeal of Louisiana, Third Circuit.
    June 17, 1980.

      Edwards, Stefanski & Barousse, Larry C. Dupuis, Crowley, for plaintiff-appellant.
    Reggie, Harrington & Boswell, Thomas Barrett Harrington, Crowley, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff Elden L. Credeur, brought this suit to evict defendant, Credeur Credit Corporation, from a building that he had leased to defendant. After a trial, the district court rendered judgment in favor of defendant, dismissing his suit. He appeals.

On August 4, 1978, plaintiff leased a building in Crowley, Louisiana to defendant for a term of thirty-six months, beginning on August 1,1978 and ending on September 1, 1981. The written agreement provided for monthly rent of $350.00, payable on the first of each month.

At the time that the lease was executed, plaintiff was the president of Credeur Credit Corporation. He continued serving in that capacity until March 20, 1979, when he resigned. It was established at the trial that during the time that plaintiff was president of the corporation, the rent was never paid by the first of the month. It was paid fifteen to twenty days later. In his capacity as president, plaintiff would issue a check for $350.00, payable to the Crowley Building & Loan Association. The money was applied to plaintiff’s personal debt to that institution under a bond for deed agreement.

When plaintiff resigned on March 20, 1979, the March rent had not been paid. It was paid on April 3, 1979 by a check issued to the Crowley Building & Loan Association. On April 20, 1979, plaintiff notified defendant through his attorney that the April rent had not been paid and ordered defendant to vacate the leased premises. Defendant’s tender of the rent to plaintiff on April 23, 1979 was refused, as were the tenders made on the first of each of the following months. This suit was brought on May 23, 1979.

The legal principles applicable to this kind of a case were summarized in the following excerpt from the opinion of this court in Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3rd Cir. 1975):

“Louisiana Civil Code Art. 2710 declares in part that: ‘The lessee is bound . . (2) To pay the rent at the terms agreed upon.’ Civil Code Art. 2712 further provides that “The lessee may be expelled from the property if he fails to pay the rent when it becomes due.’ The summary procedure for such eviction is provided for in the Louisiana Code of Civil Procedure, Art. 4701 et seq.
“There is, however, a well established general rule in the jurisprudence of this state that where a lessor-owner customarily accepts rental payments after the date on which they are due, such ‘custom’ by acquiescence of the parties, has the effect of altering the original contract in respect to punctuality of rent payments. Briede v. Babst, 131 La. 159, 59 So. 106 (1912); Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908); Raytheon Manufacturing Company (Equipment Sales Division) v. Jack Neilson, Inc. 196 So.2d 675 (La.App. 4th Cir. 1967); Rex Credit Co. v. Kirsch, 4 So.2d 797 (La.App.Orl.Cir. 1941).
“The basis for such a rule seems to be the prevention of a lessor-owned ‘misleading or lulling a tenant into a false sense of security’ by accepting late rent payments for an extended period, without demand for punctuality, and then at a future date of his own choosing cancel the lease once payment becomes overdue. Briede v. Babst, supra; Goldblum v. Harden, 188 So.2d 630 (La.App. 4th Cir. 1966); Boulevard Investment Corp. v. Boulmay, 79 So.2d 917 (La.App.Orl.Cir. 1953).
“When such ‘indulgences’ on the part of the lessor are found to have created the abovementioned ‘custom’, the landlord’s right to strict enforceability of the lease rental provisions is considered waived, and in order to hold the lessee to the explicit terms of the lease, advance notice must be given of the lessor’s intention in the future to strictly enforce the lease provisions and collect the rent as due. Standard Brewing Co. v. Anderson, supra; Jones v. Paul, 254 So.2d 915 (La. App. 1st Cir. 1971); Leinhardt v. Marrero Land and Improvement Association, Ltd., 137 So.2d 387 (La.App. 4th Cir. 1962).
“The foregoing rules, however, have no application where the lessor has made frequent and unsuccessful demands for the rent or where acceptance of tardy payments is because of ‘unwilling and forced' indulgence on the lessor’s part. Wall v. Green, 228 La. 59, 81 So.2d 769 (1955); Redon v. Armstrong, 215 La. 307, 40 So.2d 474 (1949); Briede v. Babst, supra, Raytheon Manufacturing Company (Equipment Sales Division) v. Jack Neilson, Inc., supra; Farmers Gas Company, Inc. v. LaHaye, 195 So.2d 329 (La.App. 3rd Cir. 1967); Goldblum v. Harden, supra; Mossy Enterprises, Inc. v. Piggy-Bak Cartage Corporation, 177 So.2d 406 (La.App. 4th Cir. 1965); Maestri v. Nall, 145 So. 128 (La.App.Orl.Cir. 1933); Chapman v. Burke, 145 So. 560 (La.App.Orl. Cir. 1933).

See also, Quality Materials of Tangipahoa v. Labarama, 361 So.2d 1285 (La.App. 1st Cir. 1978), writ denied, 363 So.2d 923 (La.1978), and Lee Lumber Company, Ltd. v. International Paper Company, 345 So.2d 212 (La. App. 3rd Cir. 1977), writ denied, 347 So.2d 503 (La. 1977).

Applying those principles to the case at hand, we find that there was an established custom of accepting late payments, which had the effect of altering the terms of the original contract with regard to the punctuality of the rent payments. We find no merit in plaintiff’s argument that his resignation as president of the corporation terminated that effect. The corporation has a legal personality that is separate and distinct from plaintiff’s. The other officers and directors and the office staff of the corporation had knowledge of the custom. The corporation was therefore entitled to rely on it until such time as it received advance notice from plaintiff of his expectation for prompt payment of the rent.

We find no evidence of any notice being given prior to the time plaintiff ordered defendant to vacate the leased premises. Since that time, defendant has promptly tendered the rent on the first of each month. Under these circumstances, we find no error in the trial court’s dismissal of plaintiff’s suit.

For these reasons the judgment appealed by plaintiff is affirmed. All costs of this appeal are assessed against plaintiff.

AFFIRMED.