author: CHIASSON, Judge.

text:
    A. Dwayne TRACY v. Sondra Barton TRACY.
    No. 13370.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Sidney C. Sundbery, Houma, counsel for plaintiff and appellant.
    James L. Alcock, Houma, counsel for defendant and appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

A. Dwayne Tracy and Sondra Barton Tracy were divorced by judgment signed on November 6, 1979. In the same judgment, alimony to Mrs. Tracy was fixed at $1,071.29.

Mr. Tracy appeals seeking review of certain amounts and items included in the alimony award. Mrs. Tracy answered the appeal seeking to have the alimony award increased to $1,308.50.

Specifically, Mr. Tracy contends that the amounts allowed for food, hospitalization insurance, newspaper, maid service, recreation, vacation, linens and household expenses were either excessive or outside the scope of La.C.C. art. 160.

It is well established that the trial judge has much discretion in fixing the amount of alimony and that such award will not be disturbed on appeal absent a clear abuse of discretion. Ducote v. Ducote, 339 So.2d 835 (La.1976); Jackson v. Jackson, 275 So.2d 456 (La.App. 2nd Cir. 1973).

Due consideration in determining the trial judge has abused his discretion is whether the awards were made for items which are generally considered compensable under La.C.C. art. 160.

Items such as food, clothing, shelter, automobile expenses, medical and drug expenses, utilities, household expenses and tax liability generated by alimony payments have been considered within the purview of La.C.C art. 160. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

Other items such as recreation, vacation, maid expenses and life insurance have been disallowed as outside the scope of art. 160. Meyers v. Meyers, 344 So.2d 451 (La.App. 2nd Cir. 1977).

Considering the foregoing, we conclude that it was improper for the trial judge to make allowances for maid service, recreation and vacation. Although not directly addressed in Meyers, supra, we find that a newspaper is not an item within the scope of art. 160.

We further conclude that food, linens, hospitalization insurance, and household expenses are compensable items and that the amounts awarded therefor were within the sound discretion of the trial judge.

In her answer to the appeal, Mrs. Tracy contends that the awards made for food, telephone, clothing, hospitalization insurance and personal items are inadequate and should be increased. On the basis of the record and the trial judge’s discretion, we conclude that an increase in the amount awarded for these items is not warranted. Nor do we find any support for Mrs. Tracy’s contention that she should be awarded an amount for gifts to others.

For these reasons the trial court’s monthly award of $1,071.29 is reduced to $939.79 monthly to reflect the disallowance of the itemized amounts for maid service, newspaper, recreation and vacation. The judgment is affirmed in all other respects. Appellant and appellee are to bear their own costs of this appeal.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Mr. and Mrs. Byron TASSIN and Jacqueline Carr v. SLIDELL MINI-STORAGE, INC., et al.
    No. 13378.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Writ Granted Nov. 10, 1980.

      Jacqueline Carr, Slidell, pro se and for plaintiffs, appellees.
    John J. Messina, New Orleans, for defendants, appellants Slidell Mini-Storage, Inc. and Aetna Ins. Co.
    Michael Sistrunk, New Orleans, for defendant, appellee, Overhead Door Co.
    Thomas H. Gray, Slidell, for defendant, appellee, Stovall Lumber Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Slidell Mini-Storage, Inc., appeals the trial court’s award to Miss Carr and Mr. Tassin, appellees herein, for water damage to personal properties placed in storage units leased from Slidell Mini-Storage, Inc. We reverse.

La.C.C. art. 2695 imposes upon the lessor the obligation of indemnifying the lessee for damages suffered for vices and defects in the leased premises. However, statutes dealing with obligation and rights of lessors “. . . are not prohibitory laws which would be unalterable by contractual agreement but are simply intended to regulate the relationship between lessor and lessee when there is no contractual stipulation imposed in the lease.” General Leasing Company v. Leda Towing Company, Inc., 286 So.2d 802 (La.App. 4th Cir. 1974).

In the present case, the parties contracted that the lessor would not be responsible for damage to property caused by water. The contract entered into between the parties in part provides: “Insurance on property stored on said premises for loss caused by fire, water, theft, Acts of God, or otherwise, shall be obtained at Depositor’s option and expenses and Warehouseman shall not be responsible for any such losses, whatsoever.”

Contracts legally entered into have -the effect of law as between the parties who have formed them. La.C.C. art. 1901. Therefore, the obligation of appellant is governed by the contractual agreement and no liability for water damage can be imposed thereunder.

Even assuming arguendo that La. R.S. 9:3221 is applicable to damaged property as well as personal injuries, we find no evidence in the record supportive of a finding that appellant knew or should have known of the alleged defect.

At the time of the incident leading to this case, Slidell Mini-Storage had been in business for over a year without similar complaints. Nor had appellant received information which might lead it to believe that the doors would allow water seepage.

Under these circumstances, we conclude that appellant is not liable for the water damage to appellees’ property.

The judgment of the trial court is reversed and judgment is rendered herein in favor of Slidell Mini-Storage, Inc. dismissing plaintiffs-appellees’ suit against it. Costs are to be divided equally between Miss Carr and Mr. Tassin.

REVERSED AND RENDERED.

      . La.R.S. 9:3221 provides:
      “The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”


text:
    Milton CRADDOCK v. Roger CROWE and Charles J. Blanchard.
    No. 13384.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Bernard S. Smith, Covington, for plaintiff, appellant.
    Roger Crowe, in pro. per.
    Charles J. Blanchard, in pro. per.
    Anthony L. Marinaro, in pro. per.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Milton Craddock, appeals the trial court’s judgment dissolving a temporary restraining order and awarding $500.00 in attorney’s fees to appellees.

Craddock, a school board member, filed suit seeking a temporary restraining order to enjoin appellees, Roger Crowe and Charles J. Blanchard, from circulating a recall petition. In the same suit, Craddock asked for a money judgment for alleged mental and physical anguish. The temporary restraining order was granted and thereafter appellees filed a rule to dissolve the restraining order. Exceptions of improper cumulation of actions and no cause or right of action were also filed on behalf of appellees.

Judgment was subsequently rendered dissolving the temporary restraining order and ordering Craddock to elect between his action for an injunction and his action for damages. The remaining exceptions were dismissed and attorney’s fees in the amount of $500.00 were awarded to Crowe and Blanchard.

After judgment, Craddock filed a motion to dismiss his entire suit. After the motion to dismiss was signed, Craddock appealed the aforementioned judgment.

Although appellant asserts several specifications of error, we conclude that by voluntarily dismissing his entire suit, Crad-dock lost his right to appeal from all of the trial court’s rulings with the exception of the award of attorney’s fees to appellees. Appellant cannot prejudice appellees’ rights by dismissing his suit. La.C.C.P. art. 1039.

La.C.C.P. Article 1039 provides:

“If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.”

Therefore, the award of attorney’s fees was ■unaffected by appellant’s dismissal of his suit and can now be considered on review.

Appellant contends that attorney’s fees should not have been awarded since no evidence was introduced establishing the value of the services rendered. In the alternative, appellant contends that the award is excessive and should be reduced.

La.C.C.P. art. 3608 provides:

“The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

We are of the opinion that even though counsel for appellees did not introduce evidence as to the value of services rendered on behalf of his clients, the trial judge before whom the services were performed was nevertheless able to estimate a value and make an award for the services. Primeaux v. Hinds, 350 So.2d 1310 (La.App. 3rd Cir. 1977).

Furthermore, considering the trial judge’s much discretion and his better position to assess the value of the services, we find no abuse as to the amount awarded for attorney’s fees.

For the foregoing reasons the trial court’s award of $500.00 in attorney’s fees is affirmed at appellant’s costs.

AFFIRMED.


text:
    Carlton W. TRAYLOR v. Shaire Anderson TRAYLOR.
    No. 13444.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Michael W. Lee, Livingston, for plaintiff-appellee.
    Velma P. O’Neal, Hammond, for defendant-appellant.-
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Shaire Anderson Traylor, appeals the trial court’s judgment awarding her former husband, Carlton Traylor, custody of their child.

Carlton Traylor and Shaire Anderson Traylor were divorced in November, 1979. Laramie, age 2, was the only child born of the marriage.

In October of 1979, a hearing was held on a custody rule filed on behalf of Mr. Tray-lor. After the hearing, the trial judge found that the best interest of the child would be served by awarding permanent custody to Mr. Traylor.

From this finding, Mrs. Traylor appeals contending that she was not shown to be unfit and therefore the trial judge erred in awarding custody to Mr. Traylor. We affirm.

La.C.C. art. 157, as amended by Act No. 718 of 1979, in pertinent part provides:

“A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.”

Thus, the primary consideration is the best interest of the child, without any preference being given on the basis of the sex of the parent.

After careful review of the entire record, we agree that the child’s welfare will best be served by awarding custody to the father. There is evidence in the record that Mrs. Traylor used excessive alcohol and engaged in illicit relationships which was denied by Mrs. Traylor and her witnesses.

The trial judge considered the conflicting testimony and felt that Mr. Traylor would provide Laramie with the more desirable home environment. The trial judge is in a better position to determine the best interest of the child and his determination must be accorded great weight. Howard v. Howard, 339 So.2d 1275 (La.App. 1st Cir. 1976).

We discern no abuse in the award of custody made by the trial court and the judgment is affirmed at appellant’s costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Bobby Jean HICKERSON et al. v. STATE FARM MUTUAL INSURANCE COMPANY et al.
    No. 13356.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Robert J. Mack, Hammond, for plaintiffs.
    Iddo Pittman, Jr., Hammond, for defendant, State Farm.
    Geoffrey H. Longenecker, New Orleans, for defendants, Leon Gaten, All Risk Mgt. Claim Service, and Genway Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendants, Leon Gaten, All Risk Management Claim Service and Genway Corporation, appealed from the judgments in these consolidated cases arising from an automobile collision. The issues are the liability of the two drivers and the responsibility of the other defendants.

We affirm in part and reverse in part.

Gaten was driving on a street that crossed over a railroad track. Defendant, Albert Bishop, was traveling on one of the streets that paralleled the track, one on each side of the track. There were stop signs facing Gaten before he crossed the street on the first side of the track and before he crossed the track but none, immediately before he crossed the street on which Bishop was proceeding. Bishop’s street was the preferred one. Neither driver stopped and the collision occurred.

Two passengers in Gaten’s car sued Ga-ten, Genway Corporation, All Risk Management Claim Service, Bishop and Bishop’s insurer, State Farm Mutual Automobile Insurance Co., for personal injuries. Gaten, Genway, and All Risk filed third party demands against Bishop and State Farm for contribution. State Farm and Bishop sued Gaten, Genway and All Risk for the property damage to Bishop’s car.

The trial court gave damages to plaintiff Hickerson for herself and for her son, Steve Terry, against Gaten, All Risk and Genway; gave recovery to State Farm and Bishop against the same defendants; dismissed Hickerson’s claims for herself and son against Bishop and State Farm; and dismissed the third party demands against Bishop and State Farm. We are informed by brief that the appellants have settled with the plaintiff in Suit No. 13,356.

The appeals of Gaten, All Risk and Gen-way claim that Bishop was negligent and that judgment should be had against Bishop and State Farm for contribution.

There was no proof of negligence on Bishop’s part. He was traveling on a through street and was not exceeding the speed limit. Therefore, Bishop and State Farm are not barred from recovery because of his contributory negligence. Further, they are not liable for contribution as Bishop was not a joint tortfeasor.

All Risk and Gen way further contend that liability against them was not proved. There was no proof in the record that the car was owned by anyone other than Gaten. Nor was there any proof that All Risk was the insurer of the vehicle, or that Genway was involved at all. Therefore, there can be no judgment against Genway or All Risk.

In Suit No. 13,356, 388 So.2d 73 (La. App.) the judgment dismissing the third party demand is affirmed.

The costs of this appeal are assessed to appellants.

AFFIRMED.


text:
    STATE FARM MUTUAL INSURANCE COMPANY, et al. v. Leon GATEN et al.
    No. 13357.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Iddo Pittman, Jr., Hammond, for plaintiffs.
    Geoffrey H. Longenecker, New Orleans, for defendants Leon Gaten, All Risk Mgt. Claim Service and Genway Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

For the reasons assigned in Suit No. 13,-356, 388 So.2d 71 (La.App.) the judgment in Suit No. 13,357 in favor of State Farm Mutual Automobile Insurance Company and Albert S. Bishop and against Leon Gaten, are affirmed. The judgments in favor of State Farm Mutual Automobile Insurance Company and Albert S. Bishop and against All Risk Management Claim Service, Inc., and Genway Corporation are reversed and there is now judgment dismissing these claims.

All costs in the lower court and one half of the costs in this court are assessed against Leon Gaten. One half of the costs in this court are assessed against Albert Bishop and State Farm Mutual Automobile Insurance Company.

Affirmed in part and reversed and rendered in part.


text:
    STATE of Louisiana In the Interest of Charmaine WESTON and Harold Williams.
    No. 13366.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, for defendants-appellants, Harold Williams and Charmaine Weston.
    Edselle Cunningham, Baton Rouge, for plaintiff-appellee, State of Louisiana.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendants appealed from the adjudication of delinquency and the imposition of a six month suspended sentence with supervised probation. The issues are legality of the arrest of one whom defendants assert they were defending and the sentences.

Two City Police officers, on patrol in a high crime area, observed a man leaning into the trunk of a car that was parked illegally and next to the back of another car with both trunks open.

When the officers asked the man if he was the owner of the car, he responded with profanity and brandished a socket wrench.

A scuffle broke out. There was testimony that the man choked his mother who was attempting to intervene, but the mother denied this. The two defendants, brother and sister of the one being arrested, attacked police officers, who had responded to a “back-up” call.

The trial court found the defendants had committed battery.

Defendants assert that the police did not lawfully arrest their brother, they were therefore justified in aiding him in resisting an illegal arrest.

In the factual context of this case, the police not only were justified in stopping to inquire as to the ownership of the car, they had a duty to do so. They were attempting to protect the very persons they ended up arresting.

The arrest was lawful since the officers were, according to the facts, assaulted by the man when he brandished the socket wrench. Whether or not he later committed a battery on his mother is irrelevant for purposes of the arrest.

The Code of Juvenile Procedure gives the trial court great discretion in the disposition of a juvenile adjudicated delinquent. The court should impose the least restrictive disposition consistent with the circumstances of the case, the needs of the child and the best interest of society. CJP 86. The trial judge in his oral reasons considered these when he sentenced the defendants. We cannot say he abused his discretion.

The judgment of the trial court is affirmed. The costs of the appeal shall be assessed to the appellee.

AFFIRMED.

      . LSA-R.S. 14:36:
      “Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

      . LSA-C.J.P. Art. 86(A):
      “The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interests of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.”


text:
    Alfred RIVERE v. BELLEFONTE INSURANCE COMPANY.
    No. 13369.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Refused Sept. 19, 1980.
    Malcolm J. Dugas, Jr., Joffrion & Dugas, Donaldsonville, for plaintiff-appellant.
    James M. Funderburk, Duval, Arceneaux, Lewis & Funderburk, Houma, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment in his favor but for an allegedly insufficient amount. The sole issue is that of the amount to be allowed for car rental.

We affirm.

Plaintiff’s car was damaged in a collision with one belonging to defendant’s assured. When repairs had been completed all elements of the claims were agreed to except that of car rental during the period required for repair, plaintiff insisting on the full amount of the rental, defendant agreeing to pay the flat rental charge but nothing for mileage. Negotiations broke off, and defendant continued to use the rental car for about 14 months, being unable, he alleges, to pay the repair bill on his own car.

On trial the court allowed the undisputed items plus a rental for one week beyond the time plaintiff’s car was ready for delivery. Plaintiff claims he should have the entire cost of rental, $5,364.30, instead of $1,009.85, allowed by the court.

Plaintiff was entitled to recover the cost of a rental car for the time it took to have his own car repaired. Holleman v. Viola, 330 So.2d 627 (La.App. 4th Cir. 1976). The fact that either plaintiff or defendant may have prolonged the time because of a breakdown in compromise negotiations is not a basis on which plaintiff’s award can be increased. That a litigant may have been unreasonable in compromise negotiations is neither a reason for judgment nor an appropriate finding of fact. Jacobs v. Kent’s Dollar Store of Claiborne Avenue, Inc., 334 So.2d 450 (La.App. 4th Cir. 1976).

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

AFFIRMED.


text:
    David SANDERFORD v. CENTRAL LA. ELECTRIC CO. et al.
    No. 13470.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    George C. Ehmig, Gretna, for plaintiff-appellant.
    Warren J. Sheppard, Jr., Metairie, for intervenor-appellee, American Mut. Liability Ins. Co.
    John J. Cooper, New Orleans, for defendant-appellee, Cleco and Carly Hickman.
    Before ELLIS, CHIASSON and PONDER, JJ.
   This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS v. Gibson J. AUTIN, Jr., et al.
    No. 13517.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      James C. Russell, Jr., Asst. Gen. Counsel, Baton Rouge, for plaintiff and appellant.
    Richard Goldman, New Orleans, for defendant and appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

We granted an alternative writ ordering the trial court to grant discovery or in the alternative that the judge and/or respondent show cause why the writ should not be made peremptory. The respondent has filed a brief.

The sole issue is whether defendant’s expert appraiser shall be made to answer interrogatories on the comparable sales he considered.

We make the writ peremptory and order the disclosure of the comparables considered.

Plaintiff expropriated some property belonging to the defendant who afterwards transferred his right “to any proceeds or awards which may be granted” in the expropriation proceedings to Rebel Well Service, Inc., which later changed its name to Livingston Oil Well Service. Plaintiff served some interrogatories on the defendant, two of which read as follows:

“9.
Were sales of comparable transactions of similar property in the vicinity of the subject property used to determine market value?”
“10.
If the answer to the preceding question is in the affirmative, enumerate all comparable sales or transactions that were considered, furnishing the names of the vendor and vendee, date of the transaction and book and page at which each transaction is recorded in the conveyance records.”
Defendant answered these as follows:
“INTERROGATORY. # 9
Yes.”
“INTERROGATORY # 10
See attached.”

Defendant, however, failed to make any attachment. Plaintiff secured an order to furnish the information. Defendant filed a motion to vacate the judgment on rule and later obtained a judgment that defendant was not required to furnish the facts asked for.

State, through Department of Highways v. Kronlage, 195 So.2d 295 (La.App.), required answers of the plaintiff’s expert in similar circumstances. Defendant, however, contends that the amendment to C.C.P.. Art. 1452, now Art. 1424, in 1976 and the case of Weidenbacher v. St. Paul Fire and Marine Insurance Company, 347 So.2d 1160 (La.1977) require a contrary result.

The holding of the Weidenbacher case is that the limitations of discovery of Art. 1425 apply to facts only, not opinions. However, that article requires the answering of interrogatories or questions at a deposition as to the identity of the expert witnesses, the subject matter on which the expert is to testify and to the substance of the facts to which the expert is expected to testify.

We believe that respondent has urged on-the trial court which has adopted too restricted a view of the meaning of the word substance.

Webster’s Third New International Dictionary Unabridged defines that word in part as “essential nature, essence, a fundamental part, quality or aspect, essential quality or import, the characteristic and essential part.”

Black’s Law Dictionary, Revised Fourth Edition defines it in part as “essence, the material or essential part of a thing.”

We believe that the disclosure of comparable sales considered would come within the ambit of substance of facts.

The writ is therefore made peremptory and the trial court is instructed to require defendant to answer Interrogatory No. 10.

WRIT MADE PEREMPTORY.


author: WATKINS, Judge.

text:
    Louis MEYERS v. Norman BASSO et al.
    No. 13328.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Writ Granted Sept. 19, 1980.
    Rodney Cashe, Hammond, for Carmon Moore, Clerk of Court.
    Joseph F. Keogh, Baton Rouge, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

In the principal action in this matter, plaintiff sued defendant Basso and his insurer for damages to house boats resulting from the wake created by the improper operation of defendant’s boat. Judgment was awarded for plaintiff and the case was appealed to this court in a separate appeal 381 So.2d 843. The trial court assessed costs against the defendants and although the judgment of the trial court was amended in some respects, it was affirmed in regard to the assessment of all costs against the defendants, with all costs of appeal to be paid jointly by the plaintiff-appellee and the defendants-appellants. Defendants applied for a rehearing which was denied on March 31, 1980. While the appeal was pending the clerk of the trial court demanded that defendants pay accrued court costs, most of which apparently resulted from a jury trial requested by defendants. Court costs were paid under protest and defendants filed a motion for reimbursement of court costs paid under protest which was tried, and as a result of which the reimbursement of court costs to defendants was denied. In addition defendants were required to pay $500.00 attorney’s fees.

The statute covering the payment of court costs upon demand by the clerk during the course of litigation is LSA-R.S. 13:843, which reads as follows:

“The clerk of court may demand security for costs at the time the suit is filed.
“After any cost advance furnished under R.S. 13:842 has been exhausted, all accrued costs shall be paid by the party primarily responsible therefor, or by the surety on any bond for costs furnished by him, upon receipt of the clerk’s demand for payment thereof supported by an itemized account of these accrued costs approved by the judge. If these accrued costs are not paid within ten days of the demand for payment, judgment therefor may be rendered against the party, and against the surety on any cost bond furnished by him, by rule returnable not less than two judicial days from the date of service upon the defendants in rule and the clerk may employ an attorney at law to assist him in filing and trying said rule or rules, and the fee of the attorney employed for that purpose shall be fixed by the district judge before whom the rule is tried and shall be taxed as costs along with the cost of hearing the rule. As amended Acts 1958, No. 349, Sec. 1.”

First, defendants-appellants ask that the court costs which they paid under protest be returned to them, contending that it is improper to levy court costs against the defendants before the judgment becomes final. However, this question is now moot as the judgment of the Court of Appeal has now become final. Since the judgment is now final, the issue of whether or not court costs can be levied against the defendants before judgment becomes final is now moot.

Defendants-appellants also contend that they should not have been charged with attorney’s fees for the clerk’s defense of the litigation concerning the levying of court costs. With this contention, we must disagree. In construing statutes concerning the levying of attorney’s fees, the following language found in Fuchs v. LaBruyere, 242 So.2d 349 (La.App. 4th Cir. 1970) is pertinent:

“Statutes which provide for awards of attorney’s fees are to be strictly construed, and such fees will be permitted only in situations where they are clearly authorized, c. f. Hortman-Salmen Co. v. Continental Casualty Co., 170 La. 879, 129 So. 515 (1930); Viator v. Haynesville Mercantile Company, 230 La. 132, 88 So.2d 1 (1956).” (242 So.2d 349, 350)

Appellee, the clerk of court, cites LSA-R.S. 13:843 as authorizing the levying of attorney’s fees. That statute provides that attorney’s fees are to be levied when the clerk is forced to initiate litigation to obtain payment of accrued court costs. It contains no provision authorizing the levying of attorney’s fees if court costs are paid under protest and later a motion or suit is filed to obtain their return. As the statute must be strictly construed, we find that defendants were improperly charged with attorney’s fees under this statute. However, another statute is pertinent and does authorize the levying of attorney’s fees. That statute is LSA-R.S. 42:261 E. As the clerk of court, appellee, is a duly elected public official of this state, and as an action has been brought against him arising out of the performance of the duties of his office, and as the movers in that action, appellants, have been unsuccessful in their demands, movers, appellants are compelled to pay attorney’s fees. Therefore, the judgment of the trial court is affirmed in all respects, all costs to be paid by appellants.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Warren W. FLETCHER v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, DRIVERS LICENSE DIVISION.
    No. 13344.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Michael Lee, Livingston, for plaintiff.
    Foye Lowe, Baton Rouge, for defendant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Defendant, State of Louisiana, Department of Public Safety, Drivers License Division, hereinafter the Department, appeals a trial court judgment awarding Warren W. Fletcher, plaintiff-appellee, a restricted Louisiana driver’s license. We affirm.

A searching examination of the record convinces us that the trial court judgment was correct. We adopt the trial court’s findings of fact and reasons for judgment as our own.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by the Department.

AFFIRMED.


author: LEAR, Judge.

text:
    Sidney E. COXE et al. v. Eddie W. KNIPPERS.
    No. 13424.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Russell L. Dornier, Baton Rouge, counsel for plaintiffs-appellees Sidney E. Coxe, Andrew J. Bittner, Lamar N. Coxe and William E. Coxe.
    Bobby D. Sutton, Shreveport, counsel for defendant-appellant Eddie W. Knippers.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Eddie W. Knippers, defendant-appellant, is aggrieved by the ruling of the lower court granting a motion for summary judgment in favor of plaintiff.

The salient facts are these:

Plaintiffs, Sidney E. Coxe and Lamar Coxe, seek the specific performance of an agreement entered into by themselves and Eddie W. Knippers, defendant, whereby it is alleged that the parties agreed, as partners in commendam, to perform all acts necessary to effectuate the sale of assets to the first person or entity presenting an acceptable offer. The agreement was entered into on August 9, 1974, and contained a precondition that there be an “acceptable purchase offer.” Plaintiffs allege that on August 29, 1978, an “acceptable” purchase offer was received. In the meantime, it is alleged, the apartments had become a profitable enterprise, contrary to its status in 1974 which, defendant alleges, was a material change. Defendant caused the taking of extensive depositions herein which include parol evidence which, if considered, presents definite factual issues to be resolved.

We are of the opinion that the depositions and the parol evidence contained therein, if admissible, render summary judgment inappropriate.

We, therefore, reverse the judgment of the trial court and remand the cause for further proceedings not inconsistent with these expressions, appellees to pay all costs of the appeal.

REVERSED AND REMANDED.


text:
    In the Matter of the SUCCESSION of Rosa Lee Lofaso PIZZILLO.
    No. 13430.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Joel B. Dickinson, Baton Rouge, for Sammy Lee Pizzillo, appellant.
    Brian L. Williams, Baton Rouge, for Annette P. Provencher, Josephine E. Pizzillo Milzaao and Marie P. Shahbazian, appellees.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for collation. The trial court required that Sammy Lee Pizzillo, adopted son of Mrs. Rosa Lee Lofaso Pizzil-lo, collate the sum of $19,000.00. We affirm.

Mrs. Pizzillo died on October 20, 1977, leaving a will in nuncupative form by private act, which was duly admitted to probate. The will left Sammy Lee Pizzillo the disposable portion of decedent’s succession, as well as his legitime, and directed that the rest of decedent’s property be distributed according to law. Decedent left three other children and forced heirs, Mrs. Josephine Pizzillo Milazzo, Mrs. Annette Pizzillo Pro-vencher, and Mrs. Marie Stella Pizzillo Shahbazian. These three children demanded collation of inter vivos donations made by decedent to Sammy Pizzillo.

At the trial, Sammy Pizzillo was called on cross-examination. He testified that his mother had used $15,000.00 for his and his wife’s home, in which she lived together with them. She paid $3,000.00 toward the purchase of a 1966 Dodge automobile, and more recently $1,000.00 toward the purchase of a camper. Called on direct, Sammy Pizzillo testified that his mother had lived with him until she died. He further testified that the car was used for his mother’s benefit also, and that he, his wife, his little boy, and his mother had lived in the camper for about three weeks in Mississippi. He then moved the camper to False River and “all of us would go down there”.

Collation is always presumed where it has not been expressly forbidden by the donor. LSA-C.C. art. 1230; Succ. of Ocmand, 281 So.2d 855 (La.App. 1st Cir. 1973). Appellant contends, however, that the gifts for the house, car and camper were gifts by the mother for her use and pleasure, and were thus not subject to collation. See LSA-C.C. art. 1245; Succ. of Browne, 176 So.2d 217 (La.App. 2nd Cir. 1965); Succ. of Ocmand, supra. We hold that Mr. Pizzillo’s attempted explanation of the gifts is insufficient in that it is too general and vague to prove that they were for the mother’s use and benefit, and, as we have seen, the burden rests on him so to prove. The record contains no other testimony that could tend to prove that the gifts were for the mother’s use and benefit. Furthermore, we note that the net value of decedent’s estate as shown in the descriptive list filed May 2, 1978, was $15,302.32. Certainly, a comparison of the values of the gross estate and the amount of the gifts ($19,000.00) shows that the heirs were treated extremely unequally, and further buttresses the case for collation. In Succ. of Ocmand, supra, the court held that a gift of $5,000.00 was too large for it to be considered a gift by a parent to a child for the parent’s use and benefit, and, thus, it could not be considered a gift for which the child would not have to account to his co-heirs. Surely, in the present case, there is an even stronger factual situation for requiring collation. We, therefore hold that the trial court properly required collation of the sum of $19,000.00 in inter vivos donations.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Fred FONT v. TIM’S AUTO SALES and Minnehoma Insurance Company.
    No. 13431.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      John P. Calmes, Jr., Baton Rouge, for plaintiff-appellee, Fred Font.
    A. L. Carbonette, Baton Rouge, for defendant-appellant, Tim’s Auto Sales.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiff filed suit for rescisión of a sale, attorney fees, and for damages involving the purchase of a 1975 used pickup truck. Plaintiff also named as a defendant Minne-homa Insurance Company who had issued plaintiff two policies of insurance designed to insure the vehicle against mechanical defects. The vehicle was purchased on or about July 27, 1977 for the price of $3,775.00. According to plaintiff, he took the vehicle back several times within the next two weeks.

The trial judge, based upon the testimony of Hal Canova who performed the major repairs to the truck, held that the vice or defect in the engine existed at the time the vehicle was purchased.

All claims against Minnehoma Insurance Company were settled and the court gave judgment against Tim’s Auto Sales, by virtue of L.S.A.-C.C. 2520 which reads as follows:

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

The trial judge also held that Tim’s Auto Sales was not aware of the defect in the engine and sold the vehicle in good faith; therefore, no attorney fees were allowed.

Judgment was rendered in the sum of $1,448.64 representing $1,342.64 for the major motor repair and $106.00 for the replacement of the radiator.

A careful review of the record does not reflect an abuse of the trial judge’s discretion nor manifest error.

For the above reasons, the judgment of the trial court is affirmed, all costs to be paid by appellant.

AFFIRMED.


text:
    Mrs. Peggy Lee BROWN v. Morris A. BROWN.
    No. 13437.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.

      Joseph A. Gladney, Baton Rouge, counsel for plaintiff-appellant Mrs. Peggy Lee Brown.
    Morris A. Brown, in pro. per.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for separation from bed and board. Mrs. Brown was awarded $200.00 per month for child support for her minor children in prior judgments. As of August 9, 1979, the husband, Morris A. Brown, was in arrears in the sum of $2,350.00. By stipulation of counsel entered into on September 6,1979, before the Family Court of East Baton Rouge Parish, the husband was ordered to pay the wife $1,000 by Noon on September 17, 1979, with the understanding that the prior judgments would be wiped out. The wife contends that this sum was not paid timely and demands payment of the full amount in arrears plus attorney’s fees and court costs.

It is quite clear from the proceedings in open court which took place on September 6, 1979, that counsel for defendant-appellee agreed that both counsel would read the judgment prior to its being signed. The transcript quotes verbatim from the agreement made by counsel for defendant-appel-lee with the Court (tr. pp. 85, 86):

“MR. FUGLER: I would like to ask that both counsel be able to read the judgment prepared prior to signing.
“THE COURT: Yes. Both of you sign it before I sign it. Judgment is rendered. Thank you gentlemen.”

On November 16, 1979, a judgment was signed by the Family Court of East Baton Rouge which incorporates a stipulation purportedly entered into by the parties with regard to the payment of the $1,000. The stipulation recites that it has been agreed that the proceedings be dismissed favorably to the defendant, Morris A. Brown, upon payment of $1,000, and the judgment recites that the $1,000 has been paid. No mention is made of the date of September 17,1979. This judgment appears on its face to be at odds with the stipulation of counsel in not incorporating the date of September 17, 1979. Furthermore, the written stipulation, prepared obviously by Mr. Fugler, counsel for the husband, appellee, is not signed by Joseph A. Gladney & Associates, counsel for the wife, appellant. Instead of that, a line is drawn across the signature line provided for plaintiff’s (appellant’s) counsel’s name. The motion submitting the judgment for signing, to which the unilateral “stipulations” are attached, recites that defendant Morris A. Brown has prepared his own stipulation and judgment because counsel for Mrs. Brown has failed to do so. This violates the prior agreement of Mr. Fugler made in open court. It, therefore, appears that the judgment of the trial court was improperly entered and improperly signed. In addition, we cannot determine the precise nature of the agreement between counsel which was obviously entered into off the record with regard to attorney’s fees and court costs. The trial court alone knows of the full nature of the agreement. Accordingly, the judgment of the trial court is reversed and the matter remanded to the trial court for further proceedings not inconsistent with this opinion. Assessment of costs to await final decision of the trial court.

REVERSED AND REMANDED.


text:
    SUCCESSIONS of Herman Joseph HELG and Julia Sieber Helg.
    No. 13526.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Ernest G. Drake, Jr., Ponchatoula, for Lorraine Helg Bergeron.
    William Brooks, Amite, for Annie Helg Schilling.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented. Furthermore, no brief had been filed on behalf of appellant, nor had any motion been filed for a continuance.

Pursuant to Rule 7, Section 5(b) of the Uniform Rules — Courts of Appeal, this court, ex proprio motu, considers this appeal abandoned. Therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    DELTA ACCEPTANCE CORPORATION v. James GOLDMAN et al.
    No. 13382.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 1980.

      Martin C. Schroeder, Jr., Baton Rouge, for defendant-appellant, Minnie Goldman, and for intervenor-appellant, Malissa G. Al-essi.
    Glynn A. Long, Donaldsonville, for plaintiff-appellee, Delta Acceptance Corp.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit on a promissory note. Plaintiff confirmed a default judgment from which defendants appealed.

Defendants contend that the note is usu- ' rious and therefore the mortgage should be extinguished because there is no lawful debt; that plaintiff did not bear its burden of proof to obtain a default; and that plaintiff has no right of action to the relief sought.

We reverse and remand.

Defendants’ contention that plaintiff has no right of action is based upon the fact that the note was endorsed to General Electric Credit Corporation with recourse by plaintiff. The law prior to January 1, 1975 was that a note made payable to “myself” and endorsed in blank by the maker is bearer paper which can be negotiated by delivery. Houston v. McCoy, 351 So.2d 829 (La.App. 1st Cir. 1977). The instant note was bearer paper because it was originally made payable to “ourselves” and then endorsed by the makers in blank. If an instrument was originally bearer paper it remained so in spite of special endorsements. Liberty Loan Corp. of Eunice, Inc. v. Lavine, 324 So.2d 481 (La.App. 3rd Cir. 1975). However, the law was changed effective January 1, 1975, to read that:

“ * * * Any instrument specially endorsed becomes payable to the order of the special endorsee and may be further negotiated only by his endorsement.”

We are unable to determine whether the negotiation to General Electric Credit Corporation was before or after the effective date of the above statute. We therefore maintain the peremptory exception of no right of action.

An exception of no right of action may be raised on an appeal. C.C.P. 927. Further, upon the sustaining of a peremptory exception the plaintiff should be allowed the opportunity to amend the petition in order to remove the grounds for the exception. C.C.P. 934. The plaintiff shall have 30 days from the finality of this judgment to amend the petition to state a right of action.

Our action on the peremptory exception of no right of action makes it unnecessary to pass on defendants’ other complaints.

The judgment of the trial court is therefore reversed and remanded for further proceedings consistent with the opinion of this court. The costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.

      . La.R.S. 10:3-204(1).


author: COVINGTON, Judge.

text:
    Clifford F. FAVROT, Jr. v. Manette Suthon FAVROT.
    No. 13485.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    John A. Cvejanovich, Covington, for plaintiff, appellant.
    Ashton R. Hardy, New Orleans, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

The question which appellant asks is whether a divorced husband may require the maintenance of a trust, and prohibit the alienation of the corpus of a community property settlement, where he has alleged that the funds might otherwise be depleted by his former wife, thereby exposing him to the payment of permanent alimony.

The case, and the theory advanced by the plaintiff-appellant, is novel and of first impression so far as we know.

Plaintiff-appellant and defendant-appel-lee, who answered the appeal and prayed for damages for a frivolous appeal, were married in 1950, judicially separated in 1963 and divorced on December 15, 1964. In connection with the property settlement, the wife received, inter alia, $190,000.00 in cash and/or securities, which sum was placed in a Trust with Whitney National Bank, with the bank as trustee. Under its terms, the trust terminated on December 15, 1979. However, at appellant’s request, appellee extended it to January 15, 1980. On January 11, 1980, Mr. Favrot sued the defendant, asking for a temporary restraining order, which he obtained upon furnishing bond, and for a preliminary injunction and a permanent injunction, prohibiting the defendant, her agents, attorneys, et cetera, from terminating the trust or removing the corpus therefrom. In his petition, he alleged that: “Depletion of the corpus of the trust will irreparably injure petitioner in that he will be exposed [to] permanent alimony for the support of defendant Manette Favrot.”

The matter was then set down for hearing on January 18 on the preliminary injunction. On January 17, defendant moved to dissolve the restraining order and asked for damages for harassment, anguish and distress, and attorney’s fees. She further alleged that the plaintiff has no proprietary interest in the property.

At the hearing on January 18, defendant moved, in open court, that the motion to dissolve be treated as an exception of no cause of action or an exception of no right of action; plaintiff’s counsel agreed to that treatment of the pleading. After argument of counsel, the trial judge sustained the defendant’s exceptions, dissolved the temporary restraining order, and reserved to the defendant the right to move the court for damages, including attorney’s fees. On January 28, appellant moved for and obtained an order of devolutive appeal. Although the formal judgment does not allude to plaintiff’s request for a preliminary injunction, the comments of the judge, in open court at the conclusion of the hearing, include the statement that “. . . consequently the Court . . . will deny the motion for the preliminary injunction.” This is noted because of the fact that under LSA-C.C.P. article 3612 an appeal will not lie from an order relating to a temporary restraining order; it will lie from an order relating to a preliminary injunction.

However, as stated above, the Trust, as extended, terminated on January 15, 1980. Since injunctive relief has been denied, no impediment or restraint exists to appellee receiving the corpus under the Trust. It is thus beyond our power to give the relief sought by appellant. Cox v. Watts, 329 So.2d 917 (La.App. 1 Cir. 1976). Here, there is nothing to maintain, restrain or enjoin. As stated in Brown v. Town of Lake Providence, 200 So.2d 764, 765 (La. App. 2 Cir. 1967):

“It is well established that it is the function of appellate courts to render judgments which can be made effective and not to give opinions on moot questions.”

Hence, we do not consider moot questions on appeal. Coile v. Coile, 350 So.2d 934 (La.App. 2 Cir. 1977), writ denied, 352 So.2d 1047 (La.1977). This appeal is, therefore, dismissed at appellant’s costs.

The court is of the further opinion that the appeal is patently frivolous, and awards defendant-appellee $1,600.00 in attorney’s fees. LSA-C.C.P. art. 2164.

The right of the defendant-appellee to seek damages is reserved. Plaintiff-appellant is cast for costs.

APPEAL DISMISSED.

COLE, J., concurs in the result.


text:
    Ben ROY v. STATE of Louisiana, Through LOUISIANA DEPARTMENT OF LABOR.
    No. 13500.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant Ben Roy.
    James A. McGraw, Baton Rouge, for defendant-appellee State of Louisiana through Department of Labor.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Plaintiff, Ben Roy, filed a petition to enjoin an alleged violation of the so-called right-to-work law, LSA-R.S. 23:981 et seq., and also to obtain damages from defendant, State of Louisiana, through Louisiana Department of Labor. Plaintiff alleged that the Department, through its employees in the office of Employment Security, are responsible for the recruiting of movie actors and extras who appear in movies filmed in Louisiana. Plaintiff then alleged that although he is a qualified and experienced actor in movie roles and has made repeated applications for movie roles to defendant, he has been denied the right to even try out for a movie role solely because he is not a member of the Screen Actors Guild, a labor union, and that defendant limits its recruiting and recommendations for the more lucrative speaking roles to union members. Plaintiff seeks injunctive relief and damages.

The Department filed two peremptory exceptions of no cause of action, on the ground that the State is not a “person” within the meaning of right-to-work legislation and is thus cloaked with sovereign immunity from suit, and the other on the ground that the right-to-work law “necessarily presupposes an existing employer-employee relationship, not merely the potentiality of such relationship.”

The matter came on for hearing on the peremptory exceptions and the trial court sustained the second exception of no cause of action; i. e., on the ground that the relief sought by plaintiff was limited to existing employer-employee relationships. The court below did not rule on the question of state immunity from suit.

Following dismissal of his suit, plaintiff sought a rehearing which was denied. He then devolutively appealed. We reverse and remand.

On appeal, plaintiff asserts that the right-to-work law forbids union membership to be a condition of obtaining or retaining employment; and that since the type of activity plaintiff alleges the Department is carrying on is a prohibited activity, plaintiff must have a remedy under the law. He further asserts that LSA-R.S. 23:986 provides such a remedy for the enforcement of his rights.

In response, the Department asserts in this Court, as it did in the court below, that plaintiff has no remedy under the right-to-work law, because there is no existing employer-employee relationship between him and the Department. The Department avers that Ben Roy is not an “employee” of defendant. The basis for the Department’s contention is that LSA-R.S. 23:986 uses the term “any employee” in describing to whom injunctive relief and damages is available in the case of a violation or threatened violation, and not the broader term “any person” that some of the other provisions of the right-to-work statute uses, e. g. LSA-R.S. 23:985.

Under the Department’s interpretation of the right-to-work law, a suitor, such as the plaintiff herein, could never sue for violations or threatened violations because he could never be classified as “an employee” so as to qualify for Section 986 remedies. Such an interpretation, in our opinion, is patently contrary to the avowed public policy of the right-to — work law, which is stated in the statute as follows:

“It is hereby declared to be the public policy of Louisiana that all persons shall have, and shall be protected in the exercise of the right, freely and without fear of penalty or reprisal, to form, join and assist labor organizations or to refrain from any such activities.”

Moreover, such a restrictive interpretation offends the freedom of choice provision of the right-to-work law, LSA-R.S. 23:983, which reads:

“No person shall be required, as a condition of employment, to become or remain a member of any labor organization, or to pay any dues, fees, assessments, or other charges of any kind to a labor organization.”

Consequently, we disagree with the Department’s construction of the statute, and hold that the trial court erred in maintaining the peremptory exception based on this ground. Considering only the pleaded facts, the petition makes out a cause of action. See Gustin v. Shows, 377 So.2d 1325 (La.App. 1 Cir. 1979).

The Department also contends that defendant is protected by state immunity from suit. In our opinion, LSA—Const. 1974, Article 12, Section 10(A) has effectively demolished the concept of sovereign immunity. See Muse v. St. Paul Fire and Marine Insurance Company, 328 So.2d 698 (La.App. 1 Cir. 1976). The State and its agencies are not immune from suit for alleged violations of the right-to-work law.

We hold that plaintiff has stated a cause of action against defendant. He is entitled to his day in court to prove his case on the merits, if he can. Accordingly, we reverse and remand for further proceedings in accordance with law. Costs are to await final disposition of this suit.

REVERSED AND REMANDED.

      .“Any employee injured as a result of any violation or threatened violatin of the provisions of this Part shall be entitled to injunctive relief against any and all violators or persons threatening violation, and may also recover any and all damages of any character resulting from such violation or threatened violation.

      .“Any person who directly or indirectly places upon any other person any requirement or compulsion prohibited by this Part shall be guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not exceeding one thousand dollars and/or imprisonment for a period of not more than ninety days.”

      . LSA-R.S. 23:981.

      . “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”


author: LOTTINGER, Judge.

text:
    Worth GRYDER v. Sheila CARUSO et al.
    No. 13442.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Writ Refused Nov. 10, 1980.

      James D. Thomas, III, Baton Rouge, for plaintiff-appellant Worth Gryder.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellee National Union Fire Ins. Co. Pittsburg.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for personal injuries sustained by plaintiff, Worth Gry-der, when he fell through the roof he was repairing. The defendants are Sheila Caruso, lessee of the building, and National Union Fire Insurance Company of Pittsburgh, insurer of the building’s owner, A. Foster Sanders, III. The plaintiff perfected this appeal from a trial court judgment denying relief.

A question of fact forms the threshold issue: Did the plaintiff fall through a section of the roof over which he had placed a flimsy piece of fiber board, or did he fall through a section of the roof which had not yet been repaired by him and which was defective?

Relying on Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978), the trial judge at first rendered judgment for the plaintiff, after finding that the portion of the roof through which the plaintiff fell was defective and had not previously been prepared for repair by the plaintiff. At defendant’s behest, the trial court granted a new trial and reversed itself. Although the trial court dictated oral reasons into the record following the trial, we have not been favored with reasons for judgment following the new trial. The written judgment, however, absolves both defendants of liability. The only way the trial judge could have reached this result was by finding that the plaintiff fell through a part of the roof over which the plaintiff himself had placed an inadequate covering. The court had to conclude, thus, that it was not the defective roof which caused the accident, and that recovery was necessarily precluded under La.C.C. art. 2322. We will therefore assume that the trial judge made such a factual finding following the new trial. Regardless of the legal theory under which the plaintiff seeks to recover, if this court cannot find that the trial judge clearly erred in his factual determination as to the cause of the fall, the judgment of the trial court must be affirmed.

The plaintiff and his nephew, David Gry-der, were working on the roof on September 9, 1976, when the plaintiff apparently stepped back from a section of the roof which he had just repaired and fell between two rafters to the floor below. Both the plaintiff and his nephew testified that the section of the roof through which the plaintiff fell had not previously been repaired or prepared for repair at the time of the fall. However, the owner of the building, A. Foster Sanders, III, who was on the premises immediately following the fall, testified that a piece of fiber board being used by the plaintiff in the roof repairs was found alongside the plaintiff while he was lying on the floor. Additionally, Mr. Sanders testified over the objection of plaintiff’s counsel that plaintiff’s nephew told him immediately following the fall that the two roof repairers should have been more careful than to place such a flimsy piece of material over the rafters they were planning to repair. The nephew denies making such a statement to Mr. Sanders.

If Mr. Sanders’ story of the incident is correct, the reasonable inference to be drawn from that testimony is that the plaintiff fell through a piece of weak fiber board which he had placed over the roof. On the other hand, if the testimony of the plaintiff and his nephew is believed, the inference is that the plaintiff fell through a section of the roof which was defective prior to the repairs being made.

Although the trial judge was admittedly equivocal in his findings of fact — going one way after the first trial and another after the second — he was still in a better position to judge the credibility of the witnesses and to make a factual finding on the evidence before him. His ultimate conclusion was that the plaintiff’s injuries were not caused by the defective roof, but rather by the plaintiff stepping on a piece of weak fiber board that he had placed across two rafters. There is certainly evidence in the record to support this finding, and we cannot say that the trial judge was clearly wrong.

The plaintiff argues that the trial judge erred in finding him at fault because the defendant pleaded neither contributory negligence nor assumption of the risk. Our appreciation of the trial court’s decision is that these two defenses never became an issue at the trial. This is so because the plaintiff failed to prove that the defendant was negligent under an Article 2315 theory, and he likewise failed to prove that a defect in the roof caused his injuries under an Article 2322 theory of recovery. In effect, the plaintiff failed to prove his case under either theory of recovery and there was simply no need for the defendant to plead either defense.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


text:
    A. E. CARR, Jr., Husband of/and Evella Carr v. AMERICAN CREDIT PLAN, INC.
    No. 13495.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Jacqueline Carr, Slidell, for plaintiffs, appellants.
    Rykert O. Toledano, Jr., Covington, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiffs to recover rents due under a lease of a building to the defendant. From a judgment dismissing plaintiffs’ suit as well as defendant’s recon-ventional demand, but canceling the lease, plaintiffs have appealed.

The lease was executed on October 4, 1977. During the following month, defendant sold its Slidell assets to another finance company. In January 1978, defendant removed its furniture and fixtures and turned the keys over to a representative of plaintiffs.

The question at issue is whether there was agreement between the parties that defendant would seek a sublessee at an increased rental, or whether the lease would be terminated with some payment made by plaintiffs to defendant.

In his written reasons for judgment, the trial judge concluded that because of the close, friendly relationship between plaintiff and a representative of the defendant, any agreements to terminate the lease were handled in a clumsy and unbusinesslike manner. However, the trial judge further concluded that the parties agreed to terminate the lease as of the end of January, 1978, with defendant to receive $1,000.00 upon plaintiff renting the property to a new tenant. The agreement was later amended to delete the $1,000.00 payment when a delay occurred in obtaining a new tenant.

These are factual findings and conclusions by the trial judge, and after a thorough review of the record, we find no error.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.


author: COLE, Judge.

text:
    Philip LUCHSINGER v. Adelaide Johnson BOETTNER et al.
    No. 13486.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Jerome P. Halford, New Orleans, for plaintiff, appellant.
    Richard P. Massony, Covington, for defendants, appellees.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal concerns the classification of certain real estate as either separate or community property.

On April 6,1966, Lots 5 and 6 of Block 12 of West Beach Parkway Subdivision, located in St. Tammany Parish, were purchased by Helen Dumestre Luchsinger, the wife of Werner J. Luchsinger. Mr. Luchsinger also signed those acquisitions declaring his wife was purchasing the property with her separate and paraphernal funds under her separate administration and control and inherited from her family. Thereafter, the Luch-singers built a residence on the lots.

Mr. Luchsinger died in February 1977, and his wife died in July 1978; no children were born of that marriage. The defendant herein, Adelaide Johnson Boettner, as testamentary executrix of the succession of the deceased wife, has attempted to treat the lots indicated above as the separate property of Mrs. Luchsinger. This is a suit by Philip Luchsinger, the son of Werner J. Luchsinger by a previous marriage, to have the status of the property declared to be community rather than separate. The district court found the lots were the separate property of Helen Dumestre Luchsinger. We reverse.

The record in this matter indicates the Luchsingers were married in 1954. Mrs. Luchsinger was a retired New Orleans school principal who had been so employed for approximately thirty years. In 1954, she joined her husband in Starkville, Mississippi. He was an athletic trainer at Mississippi State University from 1947 to 1964. She was employed there and accumulated other retirement benefits in addition to those received from the New Orleans school system.

In 1964, Mr. Luchsinger retired and the couple moved to Mandeville where these lots are located. The two retirement checks of Mrs. Luchsinger amounted to over $700.00 per month while his university pension was approximately $200.00 per month. It also appears Mrs. Luchsinger may have had some accumulated savings from her employment and from family inheritances.

We find there is insufficient evidence, as a matter of law, to support the conclusion the lots were purchased with her separate funds. The jurisprudence of this state is well settled in that regard. In Succession of Milton, 278 So.2d 159 (La.App. 1st Cir. 1973), this court said:

“. . . Although the title to the property purchased during the existence of David Milton’s marriage to Louretta Price Milton was taken in the name of his wife, the property is presumed to be community property. LSA-C.C. Articles 2402 and 2405; Succession of Franek, 224 La. 747, 70 So.2d 670; and Prince v. Hopson, 230 La. 575, 89 So.2d 128. The party asserting the separate and paraphernal nature of the property has the burden of overcoming this presumption. In Houghton v. Hall, 177 La. 237, 148 So. 37, the Louisiana Supreme Court said:
‘This presumption is not overcome by the declaration of the spouses in a deed to the wife that the latter is purchasing with her own separate and paraphernal funds, under her separate administration. Shaw v. Hill, 20 La.Ann. 531, 96 Am.Dec. 420; Gogreve v. Dehon, 41 La.Ann. 244, 6 So. 31. The wife, and those claiming through or from her, to overcome the presumption in favor of the community, must establish three crucial facts, namely (1) The parapher-nality of the funds; (2) the administration thereof separately and apart from her husband; and (3) investment by her.’
* * * * * *
“. . . It is our opinion that the plaintiff has failed to prove by strict, clear and legally certain proof that she did in fact have separate funds with which to buy the property. Self-serving, totally uncorroborated evidence of the nature adduced by Appellant will not suffice. Cameron v. Rowland, 215 La. 177, 40 So.2d 1; Prince v. Hopson, 230 La. 575, 89 So.2d 128.”

And, more recently in Perkins v. Ray, 365 So.2d 1189 (La.App. 3d Cir. 1978), these comments are found:

“. . . Under Civil Code Articles 2334, 2402, 2405 and the attendant jurisprudence, all property acquired during marriage is presumed to belong to the community. Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Fleming v. Fleming, 211 La. 860, 30 So.2d 860 (1947).
“That the property is in the name of only one spouse and there is a statement of paraphernality in the act of sale, does not change this presumption. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); McGee v. Harris, 333 So.2d 440 (La.App. 3 Cir. 1976), writ refused; Milton v. Milton, 278 So.2d 159 (La.App. 1 Cir. 1973); Houghton v. Hall, supra.
“While the husband is ‘estopped by deed’ to deny the separate nature of the property, his forced heirs are not so bound. Milton v. Milton, supra; McGee v. Harris, supra; Succession of Broussard, 306 So.2d 399 (La.App. 3 Cir. 1975). In this case the presumption-that such property is community-remains, and the wife and those claiming through or from her, in order to overcome the presumption in favor of the community, must establish three crucial facts:
(1) The paraphernality of the funds;
(2) The administration thereof separately and apart from her husband, and
(3) Investment by her.
Houghton v. Hall, supra, 148 So. at Page 39.” (Emphasis Added.)

While it appears superficially these lots were purchased with Mrs. Luchsinger’s separate funds, the record contains no definite evidence in that regard. The executrix could only express the opinion the money used had been saved or inherited by the purchaser but she had no clear and certain proof of that. No bank accounts or other financial records in existence at the time of sale are in evidence. The burden of proof required in such instances has not been met by the appellee.

Accordingly, the judgment of the district court is reversed and Lots 5 and 6 of Block 12 of West Beach Parkway Subdivision, St. Tammany Parish, are declared to be assets of the community of acquets and gains which formerly existed between Werner J. Luchsinger and Helen Dumestre Luchsinger. All costs of this appeal are to be paid by the appellee.

REVERSED AND RENDERED.


text:
    QUALITY SEAFOOD, INC. v. DOS GRIS SEAFOOD, INC.
    No. 13494.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Writ Refused Oct. 20, 1980.

      Carlton J. Cheramie, of Diaz & Herrin, Golden Meadow, for plaintiff and appellee, Quality Seafood, Inc.
    George Ledet, of LaPlante & Ledet, Cut Off, for defendant and appellant, Dos Gris Seafood, Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal involves a claim for unpaid rent due under a lease. The issue is whether a recondiiction of the lease took place thus creating an obligation for the additional rental sought.

On July 12, 1973, Quality Seafood, Inc., leased certain premises located in Jefferson Parish to Dos Gris Seafood, Inc. The property was thereafter used' by the lessee in its shrimping business.

The term of the lease was for one year at $150.00 a week with a renewal option of one year which could be exercised by written notification to the lessor of the lessee’s intention to do so if given sixty days prior to the expiration of the primary term.

This suit alleges that, although the formal extension of the lease was not exercised, the lessee stayed on under the same terms and conditions for an additional thirteen months and the lessor was paid only $105.00 for that time period. All rents due for the first year were paid in full.

After trial, judgment was rendered in favor of the plaintiff in the amount of $7,695.00, plus legal interest and costs. In its comprehensive written reasons for judgment, the court found a tacit reconduction of the lease had taken place. It noted the defendant had continued to occupy and use the premises for its business purposes during the thirteen months following the primary term, it made the partial payment of $105.00, and it maintained utilities and telephone service during the reeonduction period. In reaching the amount of its judgment, the court determined rent for the fifty-six weeks and four days in which the defendant continued its occupancy, less the $105.00 payment for which it should be credited, came to $8,380.00. However, due to an error in pleading, the plaintiff only prayed for $7,695.00, and that amount was awarded by the court. Defendant appeals. We affirm.

Appellant admits occupancy after the primary term but denies the amount sought to be recovered is due. Appellant contends it was in the process of attempting to buy the property from Quality Seafood and was allowed to stay on without a rental demand in anticipation of possible sale. Appellant also maintains a tacit reconduction of the lease did not take place because appellee attempted to increase the rental price at the end of the original term, and such an attempted modification would prevent a re-conduction.

In Southern Ventures Corp. v. Texaco, Inc., 372 So.2d 1228 (1979), the Supreme Court of this state reviewed the law concerning reconduction of leases. There, it said:

“Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), expresses the law relative to occupancy of leased premises after the lease expires, referring to the appropriate code articles:
‘Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week. The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month. La.Civ.Code Arts. 2689, 2685, 2686 . . . ’ (235 So.2d at 576)”

The district court found the parties voluntarily continued the arrangement on the same terms and conditions as called for in the written lease which controlled the primary term. It noted that testimony of the parties was in direct conflict on this basic issue but the evidence preponderated in favor of the lessor and, within its discretion, it accepted that version of the facts offered by Quality Seafood and rejected that of the lessee. This crucial testimony was factual in nature and concerned the actions and conversations of the parties relative to the continued use of the premises. Absent manifest error, we will not disturb this factual finding by the district court.

In McMillan v. Travelers Ins. Co., 371 So.2d 1213 (La.App. 1st Cir. 1979), this court noted:

“The credibility of the witnesses is best judged by the trier of fact and his judgment in that regard will not be disturbed unless clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). In Tingle v. Reserve Life Insurance Company, 260 So.2d 333 (La.App. 2 Cir. 1972), the court observed:
‘The remaining issue to be resolved is plaintiff’s entitlement to penalties and attorney’s fees for defendant’s alleged arbitrary and capricious refusal to pay the claim. LSA-R.S. 22:657 provides that an insurer shall pay claims arising under health and accident contracts within thirty days after proof of a claim “unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.”
‘As to whether or not just and reasonable grounds exist is purely a factual matter and each case must be considered on its own facts and circumstances. The trial judge found the actions of defendants in the instant case not to warrant the imposition of penalties and attorney’s fees, and unless his determination is manifestly erroneous, we will not disturb same.’ ”

In view of the continued occupancy and business use of the premises by appellant, its partial payment of the rent and its continuance of utilities, the judgment of the district court is not clearly wrong.

Appellant also specifies as error the trial court’s exclusion of certain evidence it attempted to introduce concerning damage done to the premises by a tropical storm. This allegedly made the premises unsuitable to some extent. However, we find no place in the transcript where such evidence was excluded by the trial court. The evidence adduced relating to possible storm damage presented another factual question to the trial court which was obviously resolved against appellant. In this regard, we likewise find no manifest error.

The judgment of the district court is affirmed. All costs of this appeal are to be paid by appellant.

AFFIRMED.


author: ELLIS, Judge:

text:
    Anthony J. MACALUSA v. PITT GRILL, INC., and United States Fidelity & Guaranty Company.
    No. 13455.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Writ Refused Oct. 20, 1980.

      J. David Ziober, and Thomas L. Mahfouz, Morgan City, for plaintiff.
    Michael J. McNulty, III, Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries allegedly suffered by plaintiff Anthony J. Macalusa when he fell while getting off a stool in the Pitt Grill in Morgan City, Louisiana. The defendants are Pitt Grill, Inc., and United States Fidelity & Guaranty Company, its insurer. After trial on the merits, judgment was rendered in favor of defendants dismissing the suit, and plaintiff has appealed.

Plaintiff was seated on a stool at the counter in the Pitt Grill. The seat on the stool to his left had been removed because one of the bolts securing the post on which the seat had been mounted had come loose. This condition had existed for four or five weeks, and plaintiff, who was a regular customer, was not only aware of it, but had commented that it was a dangerous condition. The loose post was about two feet three inches from the post of the seat where plaintiff was seated.

Plaintiff testified that he turned to his left, intending to get up to make a phone call, when he fell to the floor. He testified that he did not know what had caused him to fall, but speculated that it might have been that his foot or trousers in some fashion caught on the adjacent post, causing the fall. Plaintiff had stated that the adjacent post “stuck out like a white elephant” and that he was constantly aware of it as he sat next to it. Other witnesses testified that, in order to come into contact with the adjacent post when arising from the stool, it was necessary to stretch out. They stated that there was no difficulty with the post when arising normally.

The trial judge found that the accident was due to plaintiff’s own carelessness in failing to avoid an obvious hazard. In this Court, plaintiff claims that the Court erred in failing to find defendants strictly liable for his injuries under Article 2322 of the Civil Code.

Article 2322 provides:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

The courts of this state have consistently interpreted the word “ruin” in the foregoing article to mean the fall or collapse of a more or less substantial component of the structure. Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970); Hornsby v. Ray, 327 So.2d 146 (La. App. 3rd Cir. 1976).

The condition complained of in this case obviously does not fall within the above interpretation, and there is therefore no basis for finding the defendant strictly liable under the provisions of Article 2322.

We agree with the trial judge that the fall resulted from carelessness, and not from any fault or negligence on the part of defendant.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Peggy Guidry FORET v. Joseph FORET.
    No. 13469.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Edward T. Diaz, of Diaz & Cheramie, Golden Meadow, for plaintiff-appellee, in suit and defendant in rule Peggy Guidry Foret.
    Stanley L. Perry, Galliano, for defendant-appellant, in suit and plaintiff in rule Joseph Foret.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a custody rule, in which Joseph Foret is seeking to obtain custody of his two minor daughters, Chrystal Ann, age 13, and Bridgette Mary, age 11. Custody was originally granted to their mother, Peggy Guidry Foret, by judgment dated October 31, 1969. From a judgment maintaining custody in Mrs. Foret, plaintiff has appealed.

At the time of the hearing, Mrs. Foret was separated in fact from her second husband, by whom she has a seven year old daughter. She was working as a waitress in a cocktail lounge in Golden Meadow, her hours being from 6:00 p. m. until about 2:00 a. m., six days per week. She lives with her three daughters in a rented trailer.

Chrystal was not in school, having dropped out because she was pregnant. Her baby was born before the rule was filed, and was being raised by her maternal grandparents, who were planning to adopt it. The father of the baby had lived in the trailer with Mrs. Foret and her children, and had slept with Chrystal. They intended to marry, then changed their minds, but at the time of the trial, wanted to get married again. Chrystal was still dating the father, named Leo, who was 18.

Bridgette is eleven years old and in the fourth grade. She has failed in school twice. When Mrs. Foret is working she leaves the children with Sue Anne Lopez, Leo’s 17-year-old sister. Sue Anne is a senior at South Lafourche High School.

Mr. Foret has remarried, and is buying a home. He and his second wife have one child, and are both willing to care for his two daughters. Since 1969, Mr. Foret has contributed $75.00 per month for the support of his daughters, pursuant to the judgment of divorce. He testified that during that (time he had visited the girls about twice a month. During the first half of 1979, he saw the children less than three times, and not at all after this rule was filed. He talked to Chrystal after he found out that she was pregnant, and wanted her to get married. He testified that, other than the fact that Chrystal had been living with Leo, he found nothing else wrong with the way his wife was taking care of the children. He also wanted Chrystal to go back to school.

The trial judge gave no reasons for his ruling maintaining custody in the mother.

Article 157(A) of the Civil Code provides, in pertinent part, as follows:

“In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the bést interest of the child or children, without any preference being given on the basis of the sex of the parent. . . .”

In Wilson v. Wilson, 378 So.2d 169 (La. App. 1st Cir. 1979), we said:

“It is settled that, following a ‘considered decree’ of custody, one seeking a change of custody bears the burden of proving ‘that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.’ Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Monsour v. Monsour, 347 So.2d 203 (La.1977). This court has held that the rule applies whether the ‘considered decree’ is one of temporary or permanent custody. Gulino v. Gulino, 303 So.2d 299 (La.App. 1st.Cir. 1974). “It is also settled that the primary consideration is the welfare and best interest of the children; that the trial judge has broad discretion in fixing custody; and that his determinations in custody matters will not be disturbed unless there is a clear showing of an abuse thereof. Fulco v. Fulco, supra; Monsour v. Monsour, supra.

In this case, there is a clear abuse of his discretion by the trial judge. The moral atmosphere provided by Mrs. Foret is so obviously deleterious to the best interests of her daughters as to render any further discussion thereof pointless. It is clear that Mr. Foret can provide a proper and stable home environment for his children, and it is clearly in their best interests to be removed from the custody of their mother.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein awarding unto Joseph Foret the care, custody and control of Chrystal Ann Foret and Bridgette Mary Foret. All costs shall be paid by Peggy Guidry Foret.

REVERSED AND RENDERED.


text:
    DAT’S SEAFOOD, INC. v. CITY OF BATON ROUGE, etc., et al.
    No. 13446.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    William R. Aaron, Baton Rouge, for plaintiff-appellee, Dat’s Seafood, Inc.
    Frank J. Gremillion, Asst. City-Parish Atty., Baton Rouge, for defendant-appellant, City of Baton Rouge, Etc., and Members of City Parish Counsel.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, City of Baton Rouge, appeals from a judgment ordering it to issue a Class “B” Beer Permit to plaintiff — appellee, Dat’s Seafood, Inc.

We notice ex proprio motu our lack of jurisdiction. La.CCP Article 2162, Uniform Rules of the Courts of Appeal, Rule VII, Section 5(c).

The judgment complained of was signed on December 7, 1979 and the appeal was taken on January 7, 1980. Under La.R.S. 26:104 an appeal from such a judgment must be taken within ten calendar days of the signing of the judgment.

The judgment of the trial court became final on December 17, 1979 and we are without legal power and authority to grant appellant any relief therefrom. We therefore lack jurisdiction. La.CCP Article 1.

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


text:
    HARRY L. BEACHAM AND COMPANY, LTD. v. Walter E. BELANGER.
    No. 13458.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Writ Refused Oct. 20, 1980.

      G. Thomas Arbour, Baton Rouge, for plaintiff-appellee, Harry L. Beacham and Co., Ltd.
    Stephen K. Peters, Baton Rouge, for defendant-appellant, Walter E. Belanger.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, Walter E. Belanger, appeals the trial court’s decision awarding $1,237.50 to Harry L. Beacham and Company, Ltd. (Beacham) for accounting services rendered. Beacham answered the appeal seeking to have the award increased to $2,475.00.

Beacham filed suit seeking judgment for $2,475.00 for accounting services which Beacham contends were rendered personally to Belanger. In his answer to the suit Belanger, denying obligation for the debt, asserted that the services were not rendered for him personally, but were instead performed for Tasco, Inc., a bankrupt corporation of which he was an officer.

The trial judge found that audit work for Tasco, Inc. and personal services for Belan-ger in preparation of a SBA loan application were performed by Beacham and billed jointly without specifying what charges were for the audit and what charges were for the loan work. At trial no evidence was introduced differentiating the charges for these services.

In written reasons the trial judge awarded one-half ($1,237.50) of the amount sued for on the basis of quantum meruit.

Appellant contends that the trial court erroneously found that Beacham had sufficiently proven the value of its services and that the court’s award of one-half of the amount sued for was arbitrary. Answering the appeal, Beacham contends that the entire debt sued upon was Belanger’s and that the award should therefore be increased to $2,475.00. Beacham alternatively seeks remand to introduce full records in the event this court determines that the amount sued upon was not adequately proven.

We agree with appellant that Beacham has not proven his claim and that the award by the trial judge of one-half of the amount sued for lacks any proof to substantiate such a division.

Beacham has failed to prove his claim by a preponderance of the evidence. All. we have before us is one bill covering 573/4 hours at $40.00 an hour. Without a breakdown of the number of hours attributable to audit work and the hours attributable to Belanger’s loan application, there is no way to discern which amounts were due for the separate services.

Nor is an award based on quantum meruit appropriate. Under any theory of recovery, be it unjust enrichment, quantum meruit, if applicable, or contract, plaintiff in a suit to recover the value of services rendered must carry his burden of proving the value of the services by competent evidence. There is no evidence in this record to establish the value of the services rendered to defendant-appellant. An award under any theory is improper where there is no evidence in the record to support it.

In regard to Beacham’s answer to the appeal, we find no manifest error in the trial judge’s determination that the debt was not a personal debt of Belanger in its entirety. Beacham admits that its invoice covers both the services rendered to Belan-ger and to Tasco, Inc.

We further find that remand is not appropriate. Beacham came to court fully aware that liability for the services was in dispute. It had an opportunity to introduce an itemization of the charges and failed to do so even though it had listed the entire file on Walter E. Belanger as an exhibit in the pretrial order. These circumstances do not warrant a remand.

For these reasons the judgment of the trial court is reversed. Judgment is rendered in favor of defendant, Walter E. Be-langer, and against plaintiff, Harry L. Beacham and Company, Ltd., dismissing plaintiff’s suit. All costs are assessed to plaintiff.

REVERSED AND RENDERED.


text:
    C. J. BROWN, INC., Realtors v. Kenneth A. MILLER.
    No. 13464.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Cornelius J. Hyde, III, Baton Rouge, for plaintiff-appellant, C. J. Brown, Inc., Realtors.
    Stephen M. Irving, Baton Rouge, for defendants-appellee, Kenneth A. Miller and Cheryl B. Miller.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, C. J. Brown, Inc., Realtors, seeks to recover a commission allegedly earned under an exclusive listing agreement executed by Kenneth A. Miller and Cheryl G. Miller, appellees. The trial court rendered judgment in favor of the homeowners and the realtor appealed.

The facts of the case are that the listing agreement was executed on August 30, 1978 for a primary term of three months ending at midnight on November 30, 1978. The agreement stipulated a realtor’s fee of six percent (6%) of the selling price of $94,-900.00.

On November 28, 1978, appellees were presented with and rejected an offer to purchase the property for $91,000.00. On November 29, 1978, the same prospective purchaser signed a purchase agreement for the full amount of $94,900.00 containing a provision for the payment of $43,800.00 in cash and the assumption of the current balance on the existing mortgage. This agreement contained a further provision that the sale was to be passed on or before February 3, 1979. This offer was rejected by appellees when it was presented to them on November 30, 1978.

Contrary to appellant’s argument in brief the exclusive listing agreement did not authorize a sale with assumption of mortgage. Nor was there a subsequent oral agreement to authorize a sale with assumption of mortgage. The act of obtaining information concerning outstanding indebtedness on the property to be sold does not automatically create authorization to sell with an assumption of the indebtedness.

In Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977), the Louisiana Supreme Court stated:

“. . . it is well-settled that a sale need not be consummated for an agent to earn his commission. The agent is entitled to his commission when he has secured a purchaser ready, able, and willing to buy on vendor’s terms even though no sale is consummated because of actions of the owner.”

The obligation of the realtor therefore is to secure a purchaser ready, able and willing to buy on the vendors’ terms. The only pertinent term expressed in the agreement is Ninety-Four Thousand Nine Hundred and No/100 ($94,900.00) Dollars.

It matters not that the principal motivating factor to reject the offer in this case was something other than the inclusion of the assumption of mortgage in the offer to purchase. The inclusion of this provision was not in accord with appellees’ terms and appellees had the right to reject the offer without incurring an obligation to pay the commission.

We are dealing here solely with the realtor’s right to a commission. Its failure to secure a purchaser ready to buy on appel-lees’ terms deprives it of any rights to a commission.

Because of our holding we find it unnecessary to determine whether or not a closing date two months and four days after an offer to purchase is reasonable.

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

AFFIRMED.

      . Although the agreement states the year 1978, it is clear that 1979 is the intended year.


text:
    The TRAVELERS INSURANCE COMPANY v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. NORTH-WEST INSURANCE COMPANY v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. James R. DAMERON et al. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    Nos. 13555-13557.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rudolph D. Hargis, Jr., Houma, for plaintiff and appellee.
    David K. Balfour, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

These three cases were consolidated for trial in the district court and after judgments were rendered defendant-appellant, Louisiana Department of Transportation and Development, appealed from the judgment dated December 14, 1979. The Travelers Insurance Company, plaintiff in suit number 13,555, La.App., 388 So.2d 105, then moved to dismiss the appeal as to it and we issued an order to show cause why the appeal should or should not be dismissed. An answer to the appeal was filed by James R. Dameron, plaintiff-appellee, in suit number 13,557, La.App., 388 So.2d 106. Thereafter, appellant, Louisiana Department of Transportation and Development, moved to dismiss its appeal in these cases and James R. Dameron moved to dismiss his answer to the appeal. Under these circumstances, the motions to dismiss the appeal are hereby granted.

All costs as permitted by law are assessed against appellant, Louisiana Department of Transportation and Development.

APPEAL DISMISSED.


text:
    NORTH-WEST INSURANCE COMPANY v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13556.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Coleman T. Organ, New Orleans, for plaintiff and appellee.
    David K. Balfour, Baton Rouge, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in Travelers Insurance Company v. Louisiana Department of Transportation and Development, Number 13,555, La.App., 388 So.2d 105, the appeal herein is dismissed.

All costs as permitted by law are assessed against appellant, Louisiana Department of Transportation and Development.

APPEALED DISMISSED.


text:
    James R. DAMERON et al. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13557.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Cecil M. Burglass, Jr., New Orleans, for plaintiffs and appellees.
    David K. Balfour, Baton Rouge, for defendant and appellant, Louisiana Dept, of Transp. and Development.
    Huntington B. Downer, Jr., Houma, for defendant and appellee, Parish of Terre-bonne and City of Houma.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

• For the reasons set forth in our opinion in Travelers Insurance Company v. Louisiana Department of Transportation and Development, Number 13,555, La.App., 388 So.2d 105, the appeal herein is dismissed.

All costs as permitted by law are assessed against appellant, Louisiana Department of Transportation and Development.

APPEAL DISMISSED.


text:
    Ernest M. FRANTZ v. MORRISON HOME CENTER, INC.
    No. 13453.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Laurence Best, Houma, for plaintiff and appellant.
    J. Mark Graham, Houma, for defendant and appellee.

      Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment denying recovery for injuries sustained at defendant’s place of business. The sole issue is that of liability.

We affirm.

Plaintiff, a trucking company employee, was delivering lumber to defendant. Two forklift trucks were used to remove it from the truck. Plaintiff stood in the back of his truck during the removal process. The load of lumber shifted and fell against plaintiff, causing his injuries.

Plaintiff argues the sole cause of the accident was the negligence of defendant’s employees. He also argues that the doctrine of res ipsa loquitur should apply.

Defendant contends that its employees were not negligent. Alternatively, it argues that plaintiff was contributorily negligent, or that he assumed the risk, or that the accident was caused by the negligence of plaintiff’s employer in the banding of the lumber.

The trial court found no negligence on the part of defendant, and further held that res ipsa loquitur did not apply because the accident could have been caused in several different ways and not necessarily by defendant.

There is conflicting testimony in the record as to the condition of the banding around the lumber and of the pallet on which the lumber rested. The trial court chose to believe defendant’s witnesses. This is within its discretion and we cannot say it erred.

The doctrine of res ipsa loquitur does not dispense with the need for plaintiff to prove negligence on the part of defendant. Walker v. Union Oil Mill, Inc., 360 So.2d 894 (La.App. 3rd Cir. 1978), writ denied, La., 363 So.2d 534, writ granted, La., 363 So.2d 909, case affirmed 369 So.2d 1043 (La.1979). The plaintiff did not meet this burden of proof.

For the above reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.