author: FORET, Judge.

text:
    John J. MATHIEU and Norma R. Mathieu, Plaintiffs-Appellees, v. Malcolm Lamar NETTLES and Betty Jean Nettles, Defendants-Appellants.
    No. 7525.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Davis & Simmons, Kenneth N. Simmons, Many, for defendants-appellants.

      Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   FORET, Judge.

This matter arises out of two basic suits. One is a petition for executory process, # 31,131 on the docket of the Eleventh Judicial District Court, and the other is a petition for a writ of sequestration, # 31,-130 on the docket of the same court.

On August 3, 1978, John J, Mathieu and his wife sold to Malcolm Lamar Nettles and his wife, a certain tract of land known as “Shady Lane Landing” in Sabine Parish, Louisiana, together with certain items of movable property. The sale was made on credit for the sum of $235,000.00, $33,000.00 of which was paid in cash and the balance on one promissory note of $202,000.00. The balance was to be in paid in ten annual installments of $20,200.00 each, together with 6V2% interest thereon.

On August 2, 1979, the Mathieus filed a petition for executory process, alleging that the Nettles had defaulted on the first installment of the note, and praying that a writ of seizure and sale issue for the property described in the credit sale deed, together with three 12' X 40' Top Kat mobile homes.

On the same day, the Mathieus also filed a petition for writ of sequestration praying that the three 12' X 40' Top Kat mobile homes be sequestered, once again alleging that the three mobile homes were a part of the credit sale deed.

The Nettles filed an answer and recon-ventional demand to the petition for sequestration, a rule to dissolve the sequestration and for damages, and an answer and recon-ventional demand to the petition for execu-tory process, seeking damages and dissolution of the writ of seizure and sale.

The suit relating to the executory process has been compromised. Therefore, the sole issue remaining is the rule to dissolve the writ of sequestration and for damages. This rule was' heard on August 31, 1979. The court maintained the writ of sequestration and denied the Nettles’ claim for damages. In his oral reasons for judgment, the trial judge stated that in reaching his decision, he considered several documents other than the credit sale deed and found the trailers to be immovable by destination and therefore a part of the credit sale deed itself. The trial court also admitted parol evidence in reaching its decision, all over the objection of counsel for defendants. Defendants have appealed.

The primary issue before us is whether or not the three mobile homes in question were a part of the credit sale between the Mathieus and the Nettles.

To further confuse the issue, a separate bill of cash sale and a separate affidavit pertaining to the three mobile homes were executed unilaterally by the Mathieus, allegedly on the same day as the credit sale. The act of cash sale was not signed by the Nettles, nor does the record reveal that this act of sale or the separate affidavit were ever filed of record in Sabine Parish. The act of cash sale simply purports to transfer title to the three mobile homes from the Mathieus to the Nettles for the sum of $100.00 “cash in hand paid, receipt of which is hereby acknowledged and other valuable considerations”. No chattel mortgage appears of record to have been executed on the trailers.

A pertinent part of the affidavit executed by the Mathieus stated:

“that Appearers deposed that they purchased the aforesaid house trailers from Jerry Smith’s Mobile Homes in Mansfield, Louisiana, in the year 197 — ; that the trailers were manufactured for the express purpose of being made immovable by destination, that there have never been any automobile vehicle titles or other evidence of ownership given to Ap-pearers by the sellers; that Appearers do hereby, and by these presents, warrant title to the aforesaid house trailers to BETTY JEAN NETTLES and MALCOLM LAMAR NETTLES, purchasers herein, and that they will hereby hold harmless the aforesaid BETTY JEAN NETTLES and MALCOLM LAMAR NETTLES for any loss or damage which may be occasioned to them for any deficiency in title of the aforesaid trailers at a later date.”

This affidavit is not recorded in the records of Sabine Parish, and there is no evidence in the record to show that the Nettles knew of its execution or existence prior to this litigation.

Careful examination of the credit sale deed shows that the three mobile homes were not described or listed therein. Nor does the deed contain any omnibus language such as “all buildings and improvements” that may be construed as encompassing the mobile homes. The trial court, in reaching its decision, considered the affidavit, the bill of sale, the contract to bind sale, the promissory note, an insurance binder on the three trailers, among other documents, and some parol evidence. Counsel for the Nettles argues that in so doing, the trial court erred, such evidence being in violation of the parol evidence rule. We agree.

Parol evidence cannot be admitted against or beyond what is contained in a written contract, and is inadmissible to vary, alter or add to the contract terms. LSA-C.C. Article 2276; Snow-White Roofs, Inc. v. Boucher, 182 So.2d 846 (La.App. 4 Cir. 1966). We are aware that although parol evidence cannot be introduced to vary the terms of a written act of sale, when an ambiguity exists in the act, resort to extrinsic evidence is permissible to clarify the ambiguity by showing the intention of the parties. Bostick v. Foret, 351 So.2d 238 (La.App. 4 Cir. 1977), writ denied, 352 So.2d 1031 (La.1977). The credit sale deed is clear and unambiguous. Parol or extrinsic evidence should not, therefore, have been admitted.

Additionally, an authentic act is full proof of the agreement contained in it, against the contracting parties, their heirs or assigns, unless forgery is alleged and proved. LSA-C.C. Article 2236. Recorded deeds of conveyance speak for themselves, and subsequent parol evidence cannot be admitted to modify their terms unless fraud or error is alleged. Knight v. Bickham, 143 So.2d 262 (La.App. 1 Cir. 1962). The above quoted rule applies to all authentic acts. The bill of sale which transferred ownership of the three mobile homes to the Nettles is, like the credit sale deed, in authentic form. Parol evidence should not have been admitted to alter or explain its contents since it is clear- and unambiguous. The act contains the vendor’s acknowledgement that he received the stipulated sum plus other consideration for the mobile homes. It is of no moment that the sum mentioned is apparently low compared to what was received in return. A vendor’s acknowledgement in an authentic act of sale that he has received the stipulated sum in cash as consideration of the transfer of property is conclusive as to him, unless he alleges and proves fraud, error or force. Chenevert v. Lemoine, 161 So.2d 85 (La.App. 3 Cir. 1964), writ denied, 245 La. 1076, 162 So.2d 572 (1964); McGee v. Finley, 65 So.2d 384 (La.App. 2 Cir. 1953). None of the pleadings contain any allegations of forgery, fraud, or error, and none was proved. The credit sale deed did not' mention the three mobile homes.

The Nettles next contend that the trial court committed manifest error in holding that the three mobile homes were immovable by destination. We think this contention is well founded.

LSA-C.C. Article 468 , as it read at the time of the sale in question, stated in pertinent part:

“Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.”

The Mathieus themselves placed the mobile homes on their property for its “service and improvement”. Thus, it would seem that the mobile homes were immovable by destination. This provision of Article 468, however, must be construed in pari materia with LSA-R.S. 32:710N(1) and (2), which provide as follows:

“N. (1) Except as provided by Paragraph (2) hereof, when any vehicle whatsoever shall be moved to and located in or upon any immovable property, or installed therein or thereon in a manner which, under any other law, might make the vehicle an immovable the vehicle shall be and will remain a vehicle subject to the provisions of this Chapter governing its mortgaging or sale. Title to the vehicle shall not pass by the sale of the immovable property to which it has been actually or fictitiously attached, whether such sale be conventional or judicial. No sale or mortgage of or lien upon the immovable property shall in any manner affect or impair the rank or privilege of a chattel mortgage on such vehicle, or the remedies of the holder thereof for its enforcement.
(2) A mobile home designed for use as a place of human habitation and placed upon a lot or tract of land shall be an immovable when there is recorded in the appropriate conveyance or mortgage records of the parish where the said lot or tract of land is situated an authentic act or sale or mortgage or sale with mortgage which: (a) contains a-description of the mobile home as described in certificate of title and a description of the lot or tract of land upon which the mobile home is placed, (b) contains a declaration of intent by the owner of the mobile home that it shall remain permanently attached to the lot or tract of land, and (c) has attached to said act the certificate of title for the mobile home described therein.
Upon the recordation of the act together with the certificate of title described above, the mobile home shall cease to be subject to the application of this Chapter and the taxes applicable to movables and shall thereafter be subject to all laws concerning immovable property.”
Added by Acts 1975, No. 747, § 1, Acts 1978, No. 728, § 2, eff. Jan. 1, 1979.

The record shows that the above quoted provisions of LSA-R.S. 32:710 were not complied with. No authentic act, sale, mortgage, or sale with mortgage, with attached certificate of title, containing a description of the mobile homes as described in the certificate of title, and a description of the lot or tract of land upon which the mobile homes were to be placed, along with a declaration of the intention of the owner to the effect that the mobile home shall remain permanently attached to the lot or tract was recorded in the appropriate conveyance or mortgage records of Sabine Parish.

Defendants cite City of Oakdale v. Benoit, 342 So.2d 691 (La.App. 3 Cir. 1977) as authority for the proposition that mobile homes are movable. In Benoit, we held that mobile homes were just that, “mobile homes or house trailers” within the contemplation of a city zoning ordinance, even though the wheels were removed and the trailer placed on blocks. Here, we are dealing not with the question of whether or not a mobile home is a mobile home or trailer within the contemplation of a zoning ordinance, but whether or not a mobile home is an immovable by destination. Our legislature in LSA-R.S. 32:710, has dictated what must be done for a mobile home to become an immovable. These requirements were not complied with; therefore, the mobile homes never became immovables in the eyes of the law. But even if we were to assume, arguendo; that the three mobile homes in question did, in fact, become immovable by destination, despite the provisions of LSA-R.S. 32:710, the plaintiffs still cannot prevail. The new Civil Code Article 468, and the redactors’ comments thereunder state as follows:

Art. 468. Deimmobilization
Component parts of an immovable so damaged or deteriorated that they can no longer serve the use of lands or buildings are deimmobilized.
The owner may deimmobilize the component parts of an immovable by an act translative of ownership and delivery to acquirers in good faith.
In the absence of rights of third persons, the owner may deimmobilize things by detachment or removal.
(Acts 1978, No. 728, § 1, eff. Jan. 1, 1979. Amended by Acts 1979, No. 180, § 2, eff. Jan. 1, 1980.)
Comments
(a) This provision codifies rules developed by Louisiana courts.
(b) Component parts of an immovable so damaged or deteriorated that they can no longer serve the use of lands or buildings are de-immobilized. See Folse v. Triche, 133 La. 915, 37 So. 875 (1904): “[W]hen, from any cause, a movable ceases to be of service to a tract of land, or is detached from a building or tenement of which it formed a part as an accessory, there is no longer ground for the claim that such movable appertains to the realty.” See also Wakefield State Bank v. T. Fitz-Williams & Co., 158 La. 838, 104 So. 734 (1925); Von Phul v. Caire & Graugnard, 12 Orl.App. 93 (La.App. Orl. Cir. 1914). Under the circumstances, prior mortgages or other interests of third persons do not preclude de-immobilization. Ibid.
(c) The owner may de-immobilize component parts of an immovable by an act translative to ownership and delivery to acquirers in good faith. See Weil v. Lapeyre, 38 La.Ann. 303 (1886); Mechanics and Traders Ins. Co. v. Gerson, 38 La. Ann. 310 (1886); Bludworth v. Hunter, 9 Rob. 256 (La.1844); Von Phul v. Caire & Graugnard, 12 Orl.App. 93 (La.App. Orl. Cir. 1914); cf. Bon Air Planting Co. v. Barringer, 142 La. 60, 76 So. 234 (1917); Chestnut v. Hammatt, 157 So.2d 915 (La.App. 1st Cir. 1963). In these circumstances, prior mortgages, or other interests of third persons do not preclude de-immobilization. See Weil v. Lapeyre, supra; Mechanics and Traders Ins. Co. v. Gerson, supra; but cf. Alliance Trust Co. v. Gueydan Bank, 162 La. 1062, 111 So. 421 (1927) (mortgage creditor entitled to the value of immovables by destination that were seized and sold by general creditors of the debtor). In any case, a creditor may enjoin the sale of things forming part of the security of his mortgage. Citizens Bank v. Knapp, 22 La.Ann. 117 (1870). By way of exceptional legislation, the de-immobilization of certain home appliances covered by a real mortgage is excluded until payment of the indebtedness secured by the mortgage. R.S. 9:5121-5126. See Acts 1978, No. 728, § 3.
(d) In the absence of rights of third persons, the owner is free to de-immobi-lize anything. Cf. Chestnut v. Hammatt, 157 So.2d 915 (La.App. 1st Cir. 1963). De-immobilization may be effected by actual detachment or removal; a mere intention to remove or detach does not suffice. See Bon Air Planting Co. v. Barringer, 142 La. 60, 76 So. 234 (1917); Maginnis v. Union Oil Co., 47 La.Ann. 1489, 18 So. 459 (1895). The execution of a chattel mortgage on previously unencumbered things has the same effect as actual detachment. Bank of White Castle v. Clerk, 181 La. 303, 159 So. 409 (1935). Upon detachment, in the absence of contrary provision of law, the things re-acquire the status of movables. Cf. Wakefield State Bank v. Fitz-Williams & Co., 158 La. 838, 104 So. 734 (1925).

Obviously, therefore, when the Mathieus sold the three mobile homes to the Nettles by an act of cash sale, the Mathieus effectively deimmobilized them. As a matter of fact, when the writ of sequestration was issued, the mobile homes had in fact been moved off of the real estate by the Nettles and were in the process of being sold to yet another third party. So, whether or not the mobile homes were immovable by destination at one' time is of no comfort to the plaintiffs, because of deimmobilization.

DAMAGES

LSA-C.C.P. Article 3506 states:

“The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.”

The above quoted provision is statutory authority for the granting of damages, including attorney’s fees, upon the dissolution of an improvidently issued writ of sequestration.

The Nettles allege that as a result of the sequestering of the mobile homes, they lost $6,600.00, that being the amount for which the homes would have been sold. This is corroborated by the testimony of Gerald B. Procell, who stated that he had agreed to buy the mobile homes for a price of $2,200.00 each, or a total of $6,600.00 (Tr., pg. 95).. Malcolm Nettles’ testimony is to the same effect. However, the record is devoid of any testimony or other evidence as to the value of the mobile homes at the time of trial, or exactly what loss the Nettles have sustained or will sustain in this connection. Inasmuch as we are ordering the return of the mobile homes to the Nettles, and there is no evidence in the record to indicate that the mobile homes, at time of trial, were worth less than $2,200.00 (i. e. that the Nettles can no longer receive $6,600.00 for the mobile homes), we must conclude that the Nettles have failed to carry their burden of proof of showing any loss or damage in this connection. Therefore, an award for same will be denied.

At the time of the sequestration, the mobile homes had been moved to a location approximately three miles from Shady Lane Landing. The Nettles alleged that this was done at a cost of $300.00. The record shows that the actual cost was $450.00 (Tr., pg. 78). However, we are disinclined to award an amount in excess of that prayed for. Accordingly, we will award the amount of $300.00 to the Nettles to compensate them for the cost of moving the mobile homes.

The Nettles seek $5,000.00 in general damages for wrongful sequestration. Damages of this nature are not restricted to pecuniary loss but may encompass injury to social standing or reputation as well as humiliation, inconvenience and mortification. Mitchell v. W. T. Grant Company, 94 S.Ct. 1895, 416 U.S. 600, 40 L.Ed.2d 406 (1974); McGee v. Missouri Val ley Dredging Co., 182 So.2d 764 (La.App. 1 Cir. 1966), application denied, 249 La. 62, 184 So.2d 734 (1966). The fact that a party seeking to recover damages because of illegal issuance and execution of a writ of sequestration could not establish the amount of damages he is entitled to with certainty does not discharge the person at whose instance the sequestration is issued from liability, and a court should fix quantum of damages as best it can with the record before it. Ralph’s Fleet, Incorporated v. American Marine Corp., 157 So.2d 317 (La.App. 4 Cir. 1963). After a review of the record and the circumstances of this case, we are of the opinion that an award of $1,000.00 for inconvenience, humiliation and embarrassment is justified.

ATTORNEY’S FEES

Attorney’s fees are a proper item of damage in an action for wrongful sequestration and should be awarded. Bice v. Southside Motors, Inc., 344 So.2d 78 (La.App. 2 Cir. 1977); Oubre v. Hinchman, 365 So.2d 17 (La.App. 4 Cir. 1978), writ denied, 365 So.2d 1375 (La.1978); Article 3506, supra. The award, however, must be limited to that part of the fee dealing with the reconventional demand, and must exclude that part dealing with defense of the original suit. Baham v. Sutherland, 197 So.2d 345 (La.App. 4 Cir. 1967); Oubre, supra. Appellants pray for an award of $5,000.00. No evidence was offered regarding the value of services rendered by counsel in obtaining dissolution of this writ. A reviewing court has the authority to make an award of attorney’s fees by applying its knowledge to the extent of services rendered and the value thereof to the record before it. Texhoma Contractors, Inc. v. Southern Shipbuilding Corp., 337 So.2d 584 (La.App. 4 Cir. 1976). In our judgment, an award of $1,000.00 would adequately compensate counsel for his services.

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

Judgment is hereby rendered as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs-in-rule, Malcolm Lamar Nettles and Betty Jean Nettles, and against John J. Mathieu and Norma R. Mathieu, defendants-in-rule, dissolving the writ of sequestration; and that the three mobile homes in question be returned to the Nettles.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Malcolm Lamar Nettles and Betty Jean Nettles and against John J. Mathieu and Norma R. Mathieu in the amount of $2,300.00, as damages for wrongful sequestration.

All costs, both at trial level and on appeal are assessed against John J. Mathieu and Norma R. Mathieu.

REVERSED AND RENDERED.

CULPEPPER, J., concurs on the basis that even if the mobile homes were immovable by destination, they were de-immobi-lized by the separate sale thereof.

      . This article has been amended by Acts 1978, No. 728, § 1. LSA-C.C. Article 467 which is based in part on former Article 468(1) of the La.Civil Code of 1870, now provides:

        Article 467. Immovables by declaration
      The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration shall be filed for registry in the conveyance records of the parish in which the immovable is located.

      . Although LSA-C.C. Article 467 provides that certain movables may become immovable by declaration, this article, like former LSA-C.C. Article 468, gives the general rule and must be read pan materia with LSA-R.S. 32:710, which specifically deals with mobile homes.

      . See also LSA-R.S. 9:5357, and LSA-R.S. 6:836 for special statutes preserving the mobility of mobile homes where the mobile home is subject of a chattel mortgage, or where a banking or lending association has a vendor’s privilege and mortgage on a mobile home.


source: Caselaw Access Project

author: GUIDRY, Judge. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Plaintiffs-Appellees, v. Darrel VAN WILLET, Jr. et ux., Defendants-Appellants.
    No. 7556.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearings Denied May 29, 1980.

      Gold, Little, Simon, Weems & Bruser, Charles S. Weems, Alexandria, for defendants-appellants.
    Bryan Miller, Baton Rouge, for plaintiffs-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

This is an expropriation suit instituted by the State of Louisiana, through the Department of Transportation and Development (hereafter referred to as the Department), against Darrell Van Willet, Jr. and Lizbeth Anne Lofton Willet, under the provisions of LSA-R.S. 48:441 et seq., commonly referred to as the “quick taking” statute.

Plaintiff deposited the sum of $993.00 in the registry of the court as the estimated just compensation for the taking of one parcel in fee and four parcels constituting temporary construction servitudes. All takings affected only parts of larger tracts upon which there existed rental duplexes belonging to defendants. After withdrawing the funds on deposit, the Willets filed an answer praying that the value of the property interests taken be fixed at a sum substantially greater than the amount deposited and that an additional sum be awarded to them as damages. Defendants further alleged that they are entitled to an award of attorney’s fees equal to 25% of any excess award as well as expenses of litigation, i. e., the cost of appraisals, expert witness fees, and the cost of exhibits. After trial, judgment was rendered by the trial court fixing just compensation at $813.53. Accordingly, defendants were ordered to pay back the difference between the deposit and the amount awarded, $173.47, together with legal interest from the date of withdrawal of the said estimated compensation. The trial court also rejected defendants’ demands as to attorney’s fees and expenses. From this judgment defendants have appealed.

The subject properties are located in the extreme northern portion of Rapides Parish near the Grant Parish line and were originally part of Aurora Park Unit II, a planned 49 lot multi-family residential subdivision (see Appendix A, adopted from defendants’ brief which graphically illustrates the subdivision as planned and location of all subject parcels and the improvements thereon). Aurora II, as planned, lies between the Dresser Industrial Valve Plant, which adjoins to the west, and the original Aurora Park, a single family residential subdivision, which adjoins to the east. The northern boundary of Aurora II abuts commercial property which fronts on U.S. Highway 71. As originally designed, Aurora II was to have access to U.S. 71 through the single family Aurora Park and suffer no through traffic. The internal streets of Aurora II either had a cul-de-sac turn around or else dead ended at the Dresser Industry property line to the west. However, in 1972, as Aurora II was being developed and prior to the completion of all planned roads and sewer lines, the Department gave advance notice that they were intending to build an expressway through the planned subdivision and ordered construction to be halted on lots lying to the west, north, and south of Austin Drive and on the commercial areas to the north. Termed as advance takings, the above mentioned areas were acquired by the Department in May, 1973. Defendants’ property and duplexes, located on the east side of Austin Drive and then under construction, were not a part of the advance takings and the Department indicated that no takings would be required from these properties. However, the project plans were subsequently revised to require construction ser-vitudes and a partial taking from defendants’ property for project work on and along Austin Drive which was incorporated into the Department’s project as a frontage road for the north leg of the expressway.

Pursuant to a court order of expropriation dated March 31, 1978, the Department acquired the subject property consisting of five tracts or parcels of land (identified by the Department in its petition and at trial as Parcel Nos. 7-6, 7-6-C-l, 7-8-C-l, 7-15-C — 1, and 7-19-C-l) to be taken from the lots owned by the Willets fronting the east side of Austin Drive. Parcel 7-6 was taken in full ownership minus mineral rights, and involves a triangular area of 85.9 square feet on the northwest corner of Lot 45. The other four parcels taken were temporary construction servitudes for a period of time not to exceed the construction of the project that varied in depth of taking from the front property lines along the easterly side of. Austin Drive. Parcel 7-6-C-l has a 20 foot depth and runs along the front of lots 45, 46, and the adjoining 30.5' of Lot 47. Two duplexes are located on these three lots. Parcel 7-8-C-l has a 20' depth and runs along the entire front of lot 48 and has a single duplex located thereon. Parcel 7-15-C-l has a 15.03' depth and runs along part of lots 2 and 4, and all of lot 3. Two duplexes are located on these three lots. Finally, Parcel 7-19-C-l has a 15.03' depth and runs across a part of lot 5 and all of lot 6 on which two lots is situated a single duplex improvement. (See Appendix A).

Attached to plaintiff’s petition, as required by LSA-R.S. 48:442(3)(d), is a Certificate of Estimate of Just Compensation which estimates the value of the property interests taken at $503.00, with damages estimated at $490.00, for a total estimated compensation in the amount of $993.00. This estimate was made by two of the Department’s right-of-way appraisers, Carl A. LeBlanc and Craig W. Thomas, whose signatures appear thereon.

In answer, defendants alleged the just compensation due for the taking of the property and improvements, viz., landscaping, improvements and drives, amounts to $3000.00. Further, defendants alleged that just compensation for the temporary construction servitudes and the loss occasioned thereby equals the sum of $60,000.00 and in the alternative, defendants argued this sum constitutes an item of severance damage for which they are entitled to separate compensation. Still further, defendants alleged that as a result of the taking, the market value of the remaining property was reduced by $65,000.00 because of the effects of the project, namely, loss of privacy and aesthetic value, increased traffic, noise, fumes and vibrations, increased drainage on servient estate, and changes in traffic patterns and status of access. Total compensation and damages claimed by defendants totalled $128,000.00.

A major portion of the damages defendants claimed in their answer constitutes estimated damages from the future utilization of the temporary construction servi-tudes which transversed the fronts of the lots. The Department’s plans as originally drawn apparently would have required a permanent drainage structure built upon the temporary construction servitudes area. Defendants’ contention was that such a use would have made the duplexes inaccessible during the construction period and would have deprived them of all rents as well as having a lasting detrimental economic impact on the market value of the property as a whole after construction. On April 23, 1978, three days before trial, the Department changed the project plans in order to delete construction in the servitude areas. As a result of the changes made, there was no longer any need for the temporary construction servitudes taken and the Department filed and recorded a release of said servitudes affecting defendants’ properties. Specifically, the Department released the unused servitudes previously acquired and designated as Parcels 7-6-C-l, 7-8-C-l, 7-15-C-l and 7-19-C-l. A copy of said release was presented and filed into evidence at trial before the close of the taking of evidence. Although the Department held the servitudes for 13 months, no construction or use of any kind was exercised by the Department in regard to the property subject to these servitudes.

The trial court, in its determination of land value for purposes of compensation for the fee taking and servitude rental values, fixed the square foot value of the subject property at $.79. For purposes of fixing the compensation for the servitudes the trial court considered the release of the servi-tudes during trial and fixed the term at 13 months. Accordingly, the trial court figured compensation as follows: for the taking in fee of Parcel 7-6, 85.9 square feet X $.79 per square foot = $67.86; for the temporary construction servitudes, 7319.1 square feet (total area of servitudes) X $.79 per square foot X .13 (13 months at 1%); total compensation for the taking in fee and the servitudes, 67.86 plus 751.67 = $819.53.

The trial court rejected defendants’ claim for severance damages as it found that the actual takings of either the parcel in fee or the servitudes had no detrimental effect on the remaining property. Such a finding limited the defendants’ recovery to the trial court’s determination of compensation of $819.53. The' amount awarded being less than the amount deposited, the trial court followed the dictates of LSA-R.S. 48:456(B) and gave judgment in favor of the Department. Because there was no excess award on the basis of severance damages, defendants’ other demands were rejected by the trial court.

Through defendants’ specifications of error, the following issues are raised for our consideration on this appeal:

(1) Whether the trial court erred in fixing the valuation of the subject property at $.79 per square foot;
(2) Whether it was error for the trial court to consider the release of the construction servitudes in its determination of compensation for their rental value;
(3) Whether severance damages are due defendants for the takings, and if so, to what extent; and
(4) Whether defendants are entitled to attorney’s fees, cost of appraisals and exhibits, and expert witness fees.

LAND VALUATION

The Louisiana Constitution of 1974, Article 1, Section 4, provides that property taken or damaged shall be compensated for justly and to the full extent of the loss to the owner. The legislature, in implementing these constitutional directives, has clearly delineated the method of determining both compensation and damages to be awarded in expropriation cases. LSA-R.S. 48:453 provides as follows:

“A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant’s remaining property is de termined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss.
D. The defendant shall present his evidence of value first.
E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

Four expert witnesses testified in regard to the basic issue of land value at the trial. Testifying on behalf of the defendants were Darrel V. Willet, Sr. and Perry E. Futrell, who set the value of the subject property at $.94 and $1.00 per square foot, respectively. Experts for the Department, Gene Cope and M. C. Gehr, valued the property at $.79 and $.55 per square foot. The trial court found that, after considering all the testimony, the adequate and just before-taking value of the subject property for purposes of compensation was $.79 per square foot. Defendants contend that the value should be set at $1.00 per square foot.

The determination of the value of land for compensation in expropriation cases, as in the instant suit, is necessarily dependent upon evidence presented in the form of opinion from expert witnesses. It is the particular province of the trial judge to weigh the credibility and expertise of such witnesses in his determination of valuation. Our jurisprudence mandates that an appellate court should not alter the trial court’s finding in such cases absent abuse of discretion or manifest error. The trial court’s finding is fully supported by the opinion of one of the experts, Gene Cope. Also after our review of all the appraisals and considering that the values suggested by the appraisers ranged from $.55 to $1.00 per square foot, we are of the opinion that the finding of $.79 per square foot is reasonable and just and that the record in no way indicates that the trial court was clearly wrong in so finding.

VALUATION OF TEMPORARY CONSTRUCTION SERVITUDES

Defendants’ basic argument regarding the valuation of the servitudes taken is that it was erroneous as a matter of law for the trial court to consider after-taking facts, i. e., the cancellation of the servitudes, in its determination. Defendants contend that the proper term of the servitudes should be measured by the expected life of the project as of the date of the taking. We find defendants’ contention to be without merit.

In the case of temporary or limited duration servitudes, just compensation is generally expressed as the fair rental value of the property affected over the life of the servitude. State v. Lutcher & Moore Cypress Lumber Co., Ltd., 364 So.2d 134 (La.App. 4th Cir. 1978). In instances where the term of the temporary servitude is unknown, it would indeed be proper to use the estimated life of the project as the missing term in the calculation of temporary construction servitude values. In the instant case, however, the life of the temporary servitudes is not a missing element to be estimated, but a definite time, i. e., 13 months. Had the trial judge ignored this “after-taking” fact, it would have been contrary to right reason and incongruous to a concept implicit in the constitutional scheme of compensation. While a landowner who has property taken for a public purpose must be put in as good a position pecuniarily as he would have been had his property not been taken, he ought not, however, recover more than that which he has actually suffered, nor be compensated for more than has been taken from him. We have found no jurisprudence to support the conclusion defendants urge and conclude that such a conclusion is not compelled by LSA-R.S. 48:453, supra. Accordingly, we find the method and calculation of the fair rental value of the temporary construction servitudes by the trial court to be correct.

SEVERANCE DAMAGES

In any discussion of the issue of damages arising from an expropriation, it is vital to a proper understanding of the outcome that the terms employed be defined. In offering these definitions we note that legal concepts seldom fit precisely into sharply defined terms. Our intention is solely to add clarity to this opinion, and hopefully reflect what is the general correct understanding of the terms in light of the principles established in our jurisprudence. The term “severance damage” describes those compensable injuries which flow from the partial expropriation of a parcel, specifically, .the diminution in value of the land remaining to the condemnee. The term “consequential damages” has been used broadly to describe any damages resulting in a non-taking situation whether compen-sable or not. The term “consequential damage”, for our purpose, refers to compensa-ble special injuries to a parcel from which there was no taking, which flow from the effects of the public work or project, which injuries particularly affect his property only and which are not sustained by the neighborhood generally. And finally, the term “incidental damages” refers to the general loss or inconvenience experienced by the property owner and the public generally which is a cost that every citizen in organized society must pay to maintain and improve that society; in other words, “damna absque injuria.”

The measure of severance damage is the subject of LSA-R.S. 48:453(B), supra, which clearly sets forth that where there is a partial taking, the measure of damages to the remaining parcel is the difference between the value of the parcel immediately before the taking, without taking into ef-feet the public works or project; and, the value of the parcel immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.

In the instant suit, the trial court found no difference between the before/after values as to any of the parcels involved, either temporary servitudes or fee, in spite of the fact that all four expert appraisers were of the opinion that defendants’ properties were indeed depreciated because of the total effect of the project. In reaching this conclusion the trial court stated:

“The law does not support an award as sought by defendant. The test is whether, in judging this piece of property, this taking renders the remaining property less valuable. If the taking subjects the remaining property to noise, fumes, and vibration which renders this property less valuable in its highest and best use, the landowner is entitled to appropriate consequential damages. In our case however, the actual taking of either the parcel or the servitude did not subject the remaining property to any-increase (sic) noise, fumes or detriment it would not have suffered had the taking not occurred. The road is no closer, the noise no more resounding, the effect no more manifest.”

As we understand the trial judge he concluded that although the properties owned by defendants may have been diminished in value by reason of increased noise, traffic, etc., such diminution in value was non-compensable because the actual takings from defendants’ properties did not cause such diminution in value, rather it was occasioned by reason of the overall effect of the project. In sum he concluded that such damages were damna absque injuria. We find this determination of the learned trial judge, as concerns parcel 7-6, to be erroneous and contrary to the decision of the Supreme Court in State of Louisiana, Through the Department of Highways v. Garrick, 260 La. 340, 256 So.2d 111 (La.1971). In Garrick, supra, the court considered the overall effect of the contemplated public work on the properties involved and determined that “noise and vibration are not damna absque injuria” and that if such condition causes a diminution in value to the remainder of properties ACTUALLY TAKEN, severance damages are allowable even though such damages are not peculiar to the complaining owner but rather are suffered by the neighborhood generally. In Garrick, supra, severance damages were allowed not because the remainders were damaged because of the taking of the narrow strips from the fronts of the properties (4V2 feet and 5V2 feet, respectively) rather because the total effect of the contemplated public work subjected the properties to increased traffic, noise and vibration which in turn depreciated their value. It is important to note however, that in Garrick, supra, the court was careful to make a distinction between damages that will be paid when there is no taking and the damages to be paid when there is the slightest partial taking, even though in fact the damages suffered in both instances may be the same in kind and in degree. In the former no damages are allowed (Reymond v. State Department of Highways, 255 La. 425, 231 So.2d 375 (La.1970) however, in the latter instance they are compensable.

In view of the trial court’s error, we now decide the question of damages. We do so in light of Garrick and Reymond and make a distinction for the purpose of categorizing the damages sustained by defendants between the tract from which.there was an actual taking in fee (Parcel 7-6 from the tract consisting of Lots 45, 46, and part of 47 upon which are two duplexes) and the independent and separate tracts from which the Department took 13 month servitudes which were never used. Defendants are clearly entitled to severance damages to the former tract; whereas, in regard to the latter tracts, we are of the opinion that unused temporary construction servitudes released and terminated prior to close of trial are equivalent to non-takings for purposes of categorizing and. determining the compensability of. damages flowing from the effects of a public work or project. We believe such conclusion to be warranted because the amount of severance damages awardable is determined as of the time of trial and for the further reason that an actual taking is required before severance damages are allowed except in instances where the landowner suffers special damages not sustained by the public in general. Judge Hood commented on this latter element in Gulf States Utilities Co. v. Comeaux, 182 So.2d 187, at 189 (La.App. 3rd Cir. 1966), cited approvingly in State, Department of Highways v. Garrick, 256 So.2d 111 (La.1971):

“We agree with defendant that a physical invasion of real property or of a real right is not indispensable to the infliction of damages within the meaning of the provisions of Article 1, Section 2, of the Louisiana Constitution. However, consequential damages to a separate and independent tract of land, no part of which is physically taken or invaded for public purposes, are not recoverable unless the owner sustains special damages, caused by the public works, which peculiarly affect his property only and which are not sustained by the public or neighborhood generally. ”

Our examination of more recent jurisprudence does not suggest a different outcome; rather, the cases show that severance damages have been awarded only upon the actual physical taking or invasion of the landowner’s real rights. State, Dept. of Highways v. Bland, 355 So.2d 283 (La.App. 2nd Cir. 1978); State, Dept. of Highways v. United Pent. Ch. of Hodge, 313 So.2d 886 (La.App. 2d Cir. 1975); Greater Baton Rouge Airport Dist. v. Hays, 339 So.2d 431 (La.App. 1st Cir. 1976), writ denied 341 So.2d 403; State, Dept. of Highways v. Cangelosi, 290 So.2d 806 (La.App. 1st Cir. 1974). Accordingly, as there was no part of defendants’ property physically taken or invaded, other than Parcel 7-6 from the tract consisting of Lots 45, 46 and part of 47, damage to defendants’ other tracts are compensable only upon a showing of “special” damajges, i. e., injury which peculiarly affects his property only. In this regard, the record does not reflect that the damage suffered by defendants are particular to their property only. The advent of this expressway will expose all other owners along Austin Drive and closely adjacent lots of the original Aurora Subdivision to the same conditions. Accordingly, we conclude that the impact of the project produces purely incidental damages to the unused construction servitude parcels.

The detrimental effects of the project were identified by the appraisers Willet, Futrell, and Cope as follows: proximity to a 4-lane expressway with elevated grade; change in beauty and aesthetic values; change in basic neighborhood from quiet, wooded residential to frontage road property; and, increased noise, vibration and fumes. The experts’ conclusions of how these adverse effects affect the market value of defendants’ properties with regard to before and after value are summarized as follows:

Willet Futrell Gehr
(Remainder) Before 252,985 246,119 199,930 125,000
After 164,471 172,284 153,000 94.500
Indicated Damages 88,513 73,835 46,930 30.500
35% 30% 23.5% 24.4%

The above summarization takes into consideration all of defendants’ properties with the twelve duplexes. However, as afore-stated, applying the rationale of Garrick and Reymond, we consider and award damages solely on the basis of a decrease in market value to the tract from which Parcel 7-6 was taken.

Only defendants’ experts broke down their severance damage figures to show severance damage to each particular tract. For the parcel 7-6 tract Futrell figured damages at 30% of remainder, less fee taking, or $24,475.00. Willet based his figure on a severance damage of 35% of remainder, less fee taking, or $29,333.00. As shown in the above summarization, the Department’s experts’ valuation figures for the total properties are substantially less than defendants’ experts. We are convinced by our examination of the record that the large variance in calculations is attributable to the Department’s experts’ •erroneously taking into account the effect of the project in their before valuations. For that reason we disregard their valuations. We have carefully examined the reports of Messrs. Willet and Futrell and consider the latter’s to be reasonable and adequately supported. Accordingly, we conclude that defendants are entitled to recover severance damages in the total sum of $24,475.00.

ATTORNEY’S FEES

In expropriation proceedings reasonable attorney’s fees, up to a maximum of 25%, may be awarded by the court if the amount of the compensation deposited in the registry of court is less than the compensation awarded in the judgment. LSA-R.S. 48:453. Since the trial judge concluded that the amount deposited by the State, h e., $993.00, exceeded the compensation due he made no award of attorney’s fees. We have determined that the award made by the trial court should be increased from the sum of $819.53 to the sum of $25,294.53. Therefore defendants are entitled to an award of attorney’s fees based upon the difference between the award made and the amount deposited in the registry of court. Under the circumstances of this case we consider that an award of attorney’s fees in the amount of $5000.00 is appropriate.

COSTS

The trial court made no award to compensate for the expert fees of Messrs. Willet and Futrell- concluding that their opinions were of no benefit. Likewise the trial court refused to tax as costs the amount of $545.88 for the expense of photographs used by defendants’ experts and introduced as exhibits in these proceedings. We conclude that this was error. The experts who testified in this proceeding on behalf of defendants both filed detailed, documented and well reasoned reports. This court has in fact accepted the opinion of Mr. Futrell in setting the award of severance damages due defendants in connection with parcel 7-6. (Both of defendants experts are entitled to reasonable compensation for their appearance in court and for preparatory work done. LSA-R.S. 13:3666; State, Dept. of Highways v. Mims, 336 So.2d 24 (La.App. 3rd Cir. 1976) writ denied 339 So.2d 16 (La.1976). Likewise the cost incurred for photographs introduced as exhibits in this proceeding should be taxed to the Department. We consider that an award to each of defendants’ experts in the amount of $2500.00 will reasonably and adequately compensate for preparatory work and their appearance at trial. The above amounts will be taxed as court costs for which the Department is liable. Alexander v. State Department of Highways, 342 So.2d 1201 (La.App. 2nd Cir. 1977) and cases therein cited; LSA-R.S. 13:5112.

For the reasons assigned the judgment is affirmed in part, amended in part and recast, as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein fixing the just compensation due defendants, Darrel Van Willet, Jr. and Lizbeth Anne Lofton Willet by the State of Louisiana, Through the Department of Transportation and Development, in the amount of TWENTY-FIVE THOUSAND TWO HUNDRED NINETY-FOUR AND 53/100 ($25,-294.53) DOLLARS, subject to a credit in favor of the State of Louisiana, Through the Department of Transportation and Development, in the amount of NINE HUNDRED NINETY-THREE AND NO/100 ($993.00) DOLLARS, with legal interest on the net amount awarded herein pursuant to the provisions of LSA-R.S. 48:455.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the fees of the expert witnesses, Darrel V. Willet, Sr. and Perry E. Futrell, Jr., be fixed at the sum of $2500.00 each and taxed as costs in these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Darrel Van Willet, Jr. and Lizbeth Anne Lofton Willet are awarded judgment against the defendant, State of Louisiana, Through the Department of Transportation and Development, in the amount of $5000.00 as attorney’s fees under the provisions of LSA-R.S. 48:453.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the State of Louisiana, Through the Department of Transportation and Devélopment pursuant to the provisions of LSA-R.S. 13:5112 be taxed with all costs of these proceedings in the trial court, including the fees of defendants’ expert witnesses and the cost of photographs introduced by defendants as exhibits in these proceedings, the total costs incurred at the trial level for which the Department is cast being fixed at the sum of $6.170.88.

Costs of this appeal in the sum of $703.50 are taxed to the Department.

AFFIRMED IN PART, AMENDED IN PART AND RECAST.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

In application for rehearing defendants-appellants have called our attention to errors in our original opinion which concern the exact amount of costs at the trial and appellate level which are assessable to the State of Louisiana under the provisions of LSA-R.S. 13:5112. In our original opinion we concluded that under the cited statute the State of Louisiana should be assessed with all costs of these proceedings in the trial court, including the fees of defendants’ experts and the cost of photographs introduced by defendants as exhibits in these proceedings, and fixed such costs at the total sum of $6170.88. We likewise concluded that the State of Louisiana was responsible for the costs of the appeal which we fixed at the sum of $703.50. A re-examination of the record in this case reflects that we committed a clerical error in calculating the costs incurred at the trial level and on appeal the total costs at the trial level, including expert fees and cost of photographs, being the sum of $5841.44', and the total cost of this appeal amounting to the sum of $838.00.

Accordingly, we grant a rehearing in this case for the limited purpose of amending our opinion previously rendered so as to reflect the correct amount of costs for which the State of Louisiana is responsible under the provisions of LSA-R.S. 13:5112. To that end we amend the final two paragraphs of our decree as follows:

“IT IS ' FURTHER ORDERED, ADJUDGED AND DECREED that the State, of Louisiana, Through the Department of Transportation and Development pursuant to the provisions of LSA-R.S. 13:5112 be taxed with all costs of these proceedings in the trial court, including the fees of defendants’ expert witnesses and the cost of photographs introduced by defendants as exhibits in these proceedings, the total costs incurred at the trial level for which the Department is cast being fixed at the sum of $5841.44.

Costs of this appeal in the sum of $838.00 are taxed to the Department.”

In all other respects the judgment previously rendered by us is re-instated and made the final judgment of this court. Further, except as set forth above the applications for rehearing filed by appellee and appellants are denied.

      . The taking was authorized by the Secretary of the Department in a Certification of Authorization to Expropriate, dated and signed October 13, 1977, and falls under the heading of State Project No. F-05-01 (001), Tioga-Gentley Highway (US 71 — US 167/71) State Route La. 3026, Rapides Parish. This project provides for the construction of a controlled access four-lane divided highway from the existing Alexandria-Pineville Expressway to the general area of the Highway 71-167 intersection near the Rapides-Grant Parish line.

      . The 1% per month represents what the consensus of appraisers considered the proper rental factor for servitudes over property such as in the instant suit.

      . LSA-R.S. 48:456(B) states:
      “If the amount finally awarded is less than the amount so deposited, the court shall enter judgment in favor of the department and against the proper parties for the amount of the excess, together with legal interest from the date of withdrawal of the deposit to the date of payment.”


author: CULPEPPER, Judge.

text:
    LOUISIANA RESOURCES COMPANY, Plaintiff and Appellant, v. Wally LANGLINAIS et al., Defendants and Appellees.
    No. 7578.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Broadhurst, Brook, Miller & Reed, William Broadhurst, Lafayette, Cooper & Son-nier, Charles Sonnier, Abbeville, for plaintiff and appellant.
    Preston N. Summers, Abbeville, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and. FORET, JJ.
   CULPEPPER, Judge.

This is an expropriation proceeding brought by Louisiana Resources Company to obtain a servitude for a 12-inch, high pressure gas pipeline across property owned by defendants, Wally Langlinais, John Calvin Langlinais and Delores Ann L. Pri-meaux. The trial judge’s award is itemized as follows:

“1) — Value of permanent servitude taken $ 6,800.00
2) — Value of temporary servitude taken 1,900.00
3) — Severance damages 31,500.00
4) — Agricultural damages 1,000.00
TOTAL $41,200.00”

Plaintiff appealed, and defendants have answered the appeal.

The issues are whether the trial judge erred as to: (1) the highest and best use of the land, (2) the value of both the permanent and temporary servitudes, (3) the award for agricultural damages, (4) the award for severance damages, (5) the denial of attorney’s fees, and (6) the denial of damages for mental anguish.

The subject property consists of approximately 200 acres located in the community of Cow Island, about iVz miles south of Kaplan and about 10 miles southwest of Abbeville, in Vermilion Parish, Louisiana. The property is a high, level and well drained L-shaped tract, with the southern boundary having a frontage of 4,400 feet along the north side of Louisiana Highways 35 and 692.

Currently the property is under cultivation for rice and soybeans. Building improvements consist of defendant Wally Langlinais’ residence and various outbuildings, which are located near the mid-point in the frontage along Highway 35. There are also eight rice storage bins situated in the extreme southeast corner of the property. Four irrigation canals and two shell roads traverse the property in various directions.

The permanent servitude taken is 30 feet wide and includes approximately 2.73 acres. Defendant has full use of the servitude area for agricultural activities, but no buildings may be placed on the servitude. The temporary servitude taken included 3.7 acres for additional workspace during construction of the pipeline, which began in November, 1978 and was completed in May, 1979.

Plaintiff called four experts to testify on his behalf: Mr. Allen J. Angers, MAI, a licensed real estate broker and consultant appraiser; Mr. Cordell Hebert, a licensed real estate broker; Dr. Thomas T. Maher, an agricultural engineer; and Dr. Charles C. Caine, a soil consultant.

Mr. Angers gave the opinion that the highest and best use of the property was the sale of highway frontage homesites and continued agricultural use of the interior land. Angers based his opinion on the great depth of the property and the lack of access to the rear portions. He also considered the fact that all of the property adjacent to the subject tract was in agricultural use. Angers valued defendant’s property overall at $2,500 per acre and, considering the servitude to be worth 84% of the fee value, valued the 2.73 acre servitude at $5,712. He valued the 3.7 acres of temporary servitude on the basis of a 10% annual return, or $810. Angers found no severance damage to the remaining land, since, in his opinion, the servitude would not harm what he considered to be the highest and best use of the remainder.

Plaintiff’s second expert, Mr. Hebert, concurred in the opinion that the highest and best use of the property was utilization of the frontage for homesites and the rear for agriculture. Mr. Hebert based his opinion on the size of the tract and his experience in the area, which led him to believe that, while there was a demand for rural homesites, there is no market for an entire subdivision. Hebert assigned $2,250 per acre as the value of the property further than 500 feet from the highway and found that the servitude was worth 92% of the fee value, or $5,576. As to the temporary servitude, Hebert allowed a 10% return on a rental basis. Hebert also found no severance damage, concluding that the servitude would have no effect on the highest and best use of the remainder.

Dr. Thomas Maher testified for plaintiff as to the condition of defendant’s property before and after construction of the pipeline. He viewed the property four times and gave the .opinion that releveling would be necessary over a maximum of 15 acres. He found the area disturbed was so small that releveling could be done by the dry land leveling method rather than by the water leveling method. He estimated the cost of releveling at $475.

Plaintiff’s fourth expert, Dr. Charles C. Caine, visited the defendant’s property both during and after construction of the pipeline to investigate soil damage and/or displacement. He considered that any crop damage defendant might suffer would result from a disturbance in the physical condition of the land and not the fertility level of the soil. Dr. Caine testified that he believed defendant’s total crop loss for 1979 would be approximately $1,000.

Defendant called three experts to testify in his behalf: Mr. Cecil B. Gremillion and Mr. Preston J. Babineaux, both of whom are licensed real estate brokers and certified appraisers, and Mr. Donald Landry, a soil conservationist.

Mr. Gremillion gave the opinion that the highest and best use of the entire tract was for rural homesites, with an alternate use for industrial purposes. Mr. Gremillion showed a particular expertise in the development of large, unimproved tracts for residential purposes and based his opinion primarily on his experience in the local market. His testimony included the results of governmental traffic surveys showing the rate of traffic passing directly in front of the subject property. Mr. Gremillion considered the traffic studies indicative of broad commercial possibilities. Based on his experience in the local area, Gremillion believed that the demand for rural home-sites exceeded the supply, particularly as few farmers in the area wanted to sell their land. Mr. Gremillion valued defendant’s property on a per lot basis and, after calculating that 2.73 acres at $2,500 would be equal to five lots at $4,375, estimated.the area taken in permanent servitude had a market value of $11,943. He estimated that the 3.7 acres taken in temporary servitude should be given a 10% annual return over two years, or $3,280.

Preston J. Babineaux gave the opinion the highest and best use for the front portion of the tract was definitely for rural homesites and that the rear portion was “between rural homesites and rural land,” being too valuable for agricultural purposes and a little too large for immediate development. Babineaux also had experience in subdivision development and was actively working on financing for a 260-acre tract in Vermilion Parish. Babineaux cited the location of the property and the road, school and work factors as evidence of the potential demand for homesite development. He described the real estate market in Vermilion Parish as active but stated that there was a scarcity of available land. Babineaux valued the defendant’s property at $2,500 per acre and estimated that the permanent servitude had a 90% market value or $6,017. As for the temporary servitude, Babineaux valued the 3.7 acres at 10% over two years, or $1,900.

Defendant’s third expert, Mr. Donald Landry, testified on the issue of damages to the land. The witness had been on defendant’s property many times prior to the pipeline construction but had not personally inspected the alleged damage. Mr. Landry testified he was familiar with the type of trench that had been dug and was able to calculate how much clay had been distributed over the top soil. Based on information provided by defendant, Mr. Landry concluded that it would cost $20,000 over a two year period to relevel the land and restore soil fertility.

HIGHEST AND BEST USE

The pivotal issue in this case is the determination of the highest and best use of the subject property. The trial judge apparently found the highest and best use for the entire tract was for rural homesites. We say this because the judgment rendered was in accordance with figures advanced by defendant’s expert, P. J. Babineaux, who proposed this use.

Plaintiff contends the trial court erred in relying on Mr. Babineaux. First, plaintiff strenuously argues that Mr. Babineaux’s opinion should be disregarded because he allegedly did not base his opinion upon comparable transactions.

The record shows that Mr. Babineaux did include within his report a listing of comparable sales similar to those offered by plaintiffs expert. This report was introduced into evidence and plaintiff had ample opportunity to examine the witness on the sales listed. 'We have compared the sales listed by Mr. Babineaux with those offered by plaintiff’s witnesses and find them equally valid for the purpose submitted. Therefore, we find no reason to disregard the witness’ opinion.

Plaintiff also contends the trial court erred in accepting the use proposed by Ba-bineaux because there is no reasonable expectation that the defendant’s property would be used as homesites in the near future. Plaintiff relies on the case of Plaquemines Parish School Board v. Miller, 222 La. 584, 63 So.2d 6 (1953), where the court stated:

“[1] Whilst the fact that a piece of property may, at some time, become available for residential subdivision purposes, can be taken into consideration jn fixing its market value in expropriation proceedings, it should be made to appear that there is some reasonable expectation that it might be so developed in the not too far distant future. It will not do for the owner to say that at some indefinite time it is foreseeable that this property, because it adjoins a growing town, will have an added value as a subdivision project. A situation like that presents only a possibility of such use, and in Louisiana Highway Commission v. Guidry, 176 La. 389, 146 So. 1, it is stated that the ‘possibility’ that land to be expropriated might sometime be sought for a particular purpose, was too remote to be considered as an element in determining its value. Here there is no suggestion coming from the defendant that he has ever contemplated dividing any of his property into building lots and spending the money involved in such an enterprise and for the court to arrive at a value on that basis it would be necessary to indulge largely in speculation which, of course, it cannot and will not do.” (Emphasis supplied)

This court has considered the question of potential use in the case of State, Department of Highways v. Jenkins, 207 So.2d 380 (3rd Cir. 1968). We stated as follows:

“[5-8] We are in accord with the language of the Supreme Court in the case of State of Louisiana, Through Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280, 282 (1964) which reads as follows:
“The Court of Appeal correctly recognized that in an expropriation suit of this nature the proper measure of compensation is the market value of the thing taken, i. e., the price for which the property could be sold by a willing and informed seller to a willing and informed buyer in the condition in which it stood, as well as under the usual circumstances existing, at the time of the expropriation. Further, as it said, market value means the worth of the land considered in the light of its best and highest use, this being the most favorable employment to which the property is adaptable and may reasonably be put in the not too distant future. In this connection the Court of Appeal aptly stated: * * Potential residential subdivision or industrial use, to serve as the basis of establishing market value in an expropriation proceeding must be shown to be reasonably prospective, as distinguished from remotely prospective, to remove such potential use of classification from the realm of guesswork, speculation and conjecture. If such potential future use is shown within the reasonably near future, the owner is entitled to compensation on the basis of such use notwithstanding the property is not being utilized for such use at the time of taking. * * * ’ (Emphasis ours)”

In the instant case, all experts testified there is a present demand for home-sites in the area. All of defendant’s property is high, level and well drained. Considering these factors, the existing state highway and nearby industrial sites, we find the potential use as accepted by the trial court to be reasonably prospective to the extent that such use is removed from the realm of guesswork, speculation and conjecture.

VALUATION OF SERVITUDES

Plaintiff argues that the trial judge erred in valuing the permanent servitude at $6,800 without considering the defendant’s residual rights to use of the land. We agree. Absent some extraordinary circumstance, we do not believe the value of the servitude taken is the same as the full market value of the land. Texas Gas Transmission Corporation v. Broussard, 196 So.2d 620 (3rd Cir. 1967).

Defendant’s expert, Babineaux, and plaintiff’s expert, Angers, both submitted $6,800 as the market value of the servitude area before expropriation. Neither, however, considered the value of the servitude to be the same as the full market value of the land. Babineaux estimated the land had a remainder value of 10% for the limited surface rights, or $680. Angers concluded the area would continue to enjoy a minimum remaining value of at least $400 per acre, or $1,088. Plaintiff’s other witness, Cordell Hebert, valued the area within the permanent servitude at $6,120 with a remainder value of $200 per acre.

In keeping with the apparent intent of the trial judge, we will amend this award according to Mr. Babineaux’s estimation of $680 and reduce the $6,800 to $6,120.

Plaintiff also argues that the trial judge erred in his valuation of the temporary servitude. Again, we agree.

The trial judge awarded $1,900, as per Mr. Babineaux’s estimation. An examination of his appraisal report, however, shows he based his calculations on the assumption that the temporary servitude would have a two-year duration. He computed the amount as follows:

3.75 acres X $2,500 (per acre) = $9,375

X 10% X 2 years = $1,875

We have no difficulty in accepting 10% of the acreage value for use of the property, but nothing in the record supports an award for two years. The record indicates that plaintiff was granted a right of entry in the-November, 1978 judgment and that all work was completed by mid-May, 1979.

We believe a fair award for the temporary servitude would be 10% of the acreage value for one year, or $937.

SEVERANCE DAMAGES

The third issue presented is whether defendants have carried their burden of proving the severance damages awarded. This award was based on the testimony of defendants’ experts that an area of 250 feet on either side of the permanent servitude will suffer a 30% diminution in value attributable to the existence of the high pressure gas pipeline. According to experts Babi-neaux and Gremillion, there is substantial buyer resistance to residential properties near a pipeline servitude, due to a fear of explosions.

Plaintiff’s experts disagreed. Mr. Hebert submitted an analysis of comparable sales which showed little or no difference in the purchase of certain subdivision lots where a similar servitude existed. While we are impressed with Mr. Hebert’s study of this one subdivision, we cannot say his testimony substantially undermined the persuasiveness of defendant’s experts. It has been recognized in a number of eases that the construction of a high pressure gas pipeline across a tract of land may have the effect of diminishing the market value of that portion of the remaining property which lies in close proximity to that pipeline, because of the dangerous potentialities of such line and the fear which prospective purchasers may have of such danger. United Gas Pipe Line Co. v. New Orleans Term. Co., 156 So.2d 297 (La.App. 4th Cir. 1963); United Gas Pipe Line Co. v. Nezat, 136 So.2d 76 (La.App. 3d Cir. 1961); Texas Pipe Line Company v. Langlinais, 168 So.2d 377 (La.App. 3d Cir. 1964); Colonial Pipeline Co. v. Babineaux, 154 So.2d 594 (3rd Cir. 1963); Texas Gas Transmission Corp. v. Young, 198 So.2d 453 (3rd Cir. 1967).

We find no manifest error in the trial court’s award of severance damages of 30% of the value of strips of property 250 feet wide on each side of the servitude taken.

ATTORNEY’S FEES

In answering this appeal, defendant argues that the trial court erred in not awarding reasonable attorney’s fees to the defendant under LSA-R.S. 19:8, which provides in part:

“If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees.”

We reiterate our position on this matter, as stated in Louisiana Intrastate Gas Corporation v. Guidry, 357 So.2d 830 (3rd Cir. 1978):

“[3] Without discussing the matter any further, we note that the statute says that the court may award reasonable attorney fees. The question therefore, of whether or not to award attorney fees, is discretionary with the court, and we cannot say that the trial court abused its discretion in not awarding attorney’s fees.”

AGRICULTURAL DAMAGES

In addition to the expropriation award, defendant made a claim for property damages including loss of fertility of the soil and impairment of the level of the entire tract. The trial court awarded “agricultural damages” in the amount of $1,000. This award is consistent with the estimate by plaintiff’s soil expert, Mr. Donald Caine, for the total crop loss for 1979.

Defendant complains that the award is inadequate in light of the testimony of his own expert, Mr. Donald Landry. While we do not doubt Mr. Landry’s ability, we note' that he never made an inspection of the property after the alleged damages occurred. We cannot say the trial court man-. ifestly erred in rejecting Mr. Landry’s significantly higher estimate of the cost to restore defendant’s property to its former condition.

We do find the award inadequate, however, in light of testimony of plaintiff’s other expert, Dr. Thomas F. Maher. After several on-site inspections, Dr. Maher determined that some 15 acres required relevel-ing, which would cost $475. We believe that defendant is entitled to this additional amount.

DAMAGES FOR MENTAL ANGUISH

Defendants also made a claim for mental anguish arising from fear of the pipeline. This claim was denied on a motion for directed verdict immediately after trial. We affirm the trial court ruling.

The only witness to testify on this issue was Mrs. Langlanais. From her testimony, it is clear that the claim related solely to mental anguish suffered by her. However, Mrs. Langlanais was not a party to this suit and cannot recover an award in the judgment.

DECREE

For the reasons assigned, the judgment appealed is amended to reduce the award from $41,200 to the sum of $40,032.00. Otherwise the judgment is affirmed at plaintiff’s costs.

AFFIRMED, AS AMENDED.


author:
DOUCET, Judge.
      FORET, Judge,

text:
    Lois PROSSER, Plaintiff/Defendant in Reconvention and Appellee, v. Virginia B. CRAWFORD, et ux., Defendants/Plaintiffs in Reconvention and Appellants.
    No. 7460.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 1980.
    Rehearing Denied May 29, 1980.
    Baker, Culpepper & Brunson, J. Michael McDonald, Jonesboro, for defendants-appellants.
    Walter M. Hunter, Jr., Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Lois Prosser brought this suit individually ■and in her capacity as tutrix of her minor son, John M. Prosser, to recover damages sustained as a result of John’s injury in an accident on April 14, 1978 in Alexandria, Louisiana. John was seriously injured when a motorcycle which he was operating collided with an automobile owned by defendants, Virginia Crawford and Melvin Crawford, and being driven by Virginia Crawford. Defendants appeal a judgment of the district court rendered against them in solido and in favor of plaintiff for a total of $15,037.16. We affirm.

The facts are that plaintiff’s seventeen year old son was injured when his motorcycle collided with defendant’s automobile at the intersection of MacArthur Drive and Louisiana Highway 28 in the City of Alexandria. John was traveling in a southerly direction on MacArthur Drive. Virginia Crawford was traveling in an easterly direction on Highway 28. It was stipulated at the trial that at that time Mrs. Crawford was engaged in a mission for the benefit of the community of property existing between she and her husband, Melvin Crawford.

MacArthur Drive is the favored street at that intersection. Three stop signs, one on both sides of the highway and one elevated above it, face traffic approaching the intersection from the east on Highway 28. Mrs. Crawford testified that she was in the right lane of Highway 28 and that she observed the stop signs and came to a stop before entering the intersection. Her testimony was refuted by Mr. John Robert Brown, a witness to the accident. Brown testified that he was driving a truck, which he had brought to a stop in the right lane of Highway 28, where he waited for traffic to clear before crossing MacArthur Drive. He testified that he observed Mrs. Crawford approach the intersection in the left lane of Highway 28 and enter it without stopping.

John, who was traveling at a speed of approximately 45 m.p.h., was unable to stop or avoid the Crawford vehicle. His motorcycle struck its left side, as a result of which he sustained a broken front tooth, closed fractures of his right femur, radius and ulna, and multiple abrasions of his right leg and forearm. He was hospitalized and underwent surgery for the repair of his fractured femur.

The trial judge disbelieved Mrs. Crawford’s testimony and found that the accident had occurred as described by Mr. Brown. His written reasons for judgment state that he found that Mrs. Crawford was guilty of negligence and that her negligence was the sole proximate cause of John’s .injuries. He further found that John was not guilty of negligence or contributory negligence. He later amended his written reasons to state that he found that Mrs. Crawford’s actions amounted to “gross negligence to the extent of being willful and wanton”.

Defendants argue on appeal that the trial court erred in (1) holding that the actions of Virginia Crawford amounted to gross negligence to the extent of being willful and wanton, and (2) determining that the actions of Virginia Crawford were the proximate cause of the accident.

In Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3rd Cir. 1975), the terms “willful” and “wanton” were defined as follows:

“The terms ‘willful’, ‘wanton’, and ‘reckless’ have been applied to that degree of fault which lies between intent to do wrong, and- the mere reasonable risk of harm involved in ordinary negligence. These terms apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended. The usual meaning assigned to do the terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow. See Prosser, Law of Torts, Section 34, at pages 187-189 (3d Ed. 1964). See also Sullivan v. Hartford Accident and Indemnity Company, 155 So.2d 432 (La.App. 2d Cir. 1963); Lipscomb v. New Star World Publishing Corporation, 5 So.2d 41 (La.App. 1st Cir. 1941); Jefferson v. King, 12 La.App. 249, 124 So. 589 (2d Cir. 1929):”

Defendants would distinguish Cates on its facts. They urge various other definitions of the terms “gross negligence”, “willful” and “wanton”. We find it unnecessary to discuss those arguments. The law applicable to plaintiff’s right to recover in this case is Louisiana Civil Code Article 2315. Under that article, she is entitled to recover whether Mrs. Crawford’s actions are deemed to be ordinarily negligent or something more aggravated.

In view of the trial court’s .findings of fact, which we affirm, it is beyond reasonable dispute that Mrs. Crawford was negligent and that that negligence was the proximate cause of John Prosser’s injuries. Accordingly; the judgment appealed is affirmed. All costs of this appeal are assessed to defendants.

AFFIRMED.

FORET, J., concurs with written reasons.

FORET, Judge,

concurring.

I concur in the result arrived at by the majority. However, I file these reasons to express my belief that the trial court’s finding in its reasons for judgment (and inclusion in the judgment) that Mrs. Crawford’s actions amounted to “gross negligence to the extent of being willful and wanton” should be reversed, in no uncertain terms, in the majority opinion. The majority opinion does not do so.

I think that the defendant in this case either inadvertently ran the stop sign, or failed to yield the right of way. This phenomenon occurs numerous times throughout the State of Louisiana every day. Occasionally, accidents will occur. In the other overwhelming majority of such traffic violations, no accident occurs. In my opinion, in the absence of aggravating circumstances, which do not exist here, the inadvertent running of a stop sign or the failure to yield the right of way is simple negligence. To hold otherwise, as the trial court did in this case, is to open a door to hold gross, willful and wanton negligence in all stop sign or yield sign violation cases.

In the last paragraph of the majority opinion, the majority stating that: “In view of the trial court’s finding of fact, which we affirm ” (emphasis added) leaves hanging the question of whether or not the trial judge was correct in finding and decreeing “gross negligence to the extent of being willful and wanton”. I do not believe that defendant Crawford’s conduct was gross negligence, willful and wanton, and for that reason, I simply concur with the result reached by the majority.


author: LEMMON, Judge.

text:
    Alexander F. MATA, III v. GRETNA POLICE BENEFIT ASSOCIATION.
    No. 11020.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1980.

      Morrison & Biri, Lawrence E. Biri, Jr. and Ronald W. Morrison, Metairie, for plaintiff-appellee.
    Heisler, Wysocki & DeLaup, Frederick P. Heisler, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiff, a Gretna city policeman, sued to recover $3,000.00 allegedly due under a contract with defendant, a nonprofit corporation with an active membership limited to full-time employees of the police department. After a trial on the merits the trial court awarded plaintiff the amount claimed, and defendant appealed.

Defendant corporation was organized for the following specific purposes stated in the charter:

“(1) To foster, promote and encourage improved law enforcement in the City of Gretna.
“(2) To promote public welfare by elevating the standards of the profession of law enforcement.
“(3) To promote and encourage cooperation between the Gretna Police Department and other law enforcement agencies and personnel.
“(4) To promote among the. members of the said profession mutual improvements, social intercourse and fraternalism.
“(5) Generally, to do any and all things advisable, desirable or necessary in the interest of the members of the Gretna Police Department.”

The charter further provided that corporate funds could be used in furtherance of the corporation’s objects and purposes.

While in the course of his employment duties on September 6, 1975, plaintiff was involved in a shooting incident. The following day he retained the service of an attorney to defend him against criminal charges arising from the incident. Later that month plaintiff was indicted on charges' of negligent homicide.

After fellow policemen informed defendant’s members of the fees incurred by plaintiff to defend charges connected with his police activities, the members voted unanimously on December 9,1975 to provide him with the funds to pay for the representation.

Plaintiff was subsequently acquitted after a jury trial in which he was represented by the attorney retained immediately after the incident. When presented with plaintiff’s bill for legal services, defendant was informed that payment of the bill was unlawful (although similar action had previously been taken on behalf of another member). Plaintiff then filed this suit, and the members voted to rescind the action taken at the earlier meeting.

Plaintiff’s suit is primarily based on enforcement of a contractual obligation. This record, however, provides no basis for a conclusion that defendant ever incurred a legal obligation to pay plaintiff the cost of his defense. Civil obligations arise in two ways, by operation of law and by consent of the parties. C.C. art. 1760. No obligation on defendant’s part arose when plaintiff incurred the debt by contracting to employ his attorney. Defendant’s subsequent action of passing a resolution to provide funds for payment of the debt cannot be construed as a conventional obligation by which one person obligated himself to another, as contemplated by C.C. art. 1761.

At most defendant’s action may be deemed a gratuitous promise or a donation inter vivos, which was never reduced to notarial act, and accepted in precise terms by the donee nor accomplished by manual delivery. C.C. arts. 1468, 1536, 1538, 1539 and 1540. Thus, the donation never became binding on the donor and was subject to rescission by defendant’s subsequent action.

Plaintiff’s final contention, advanced for the first time in oral argument, is that he incurred the legal fees in reliance on defendant’s promise. The record does not bear out this contention. Plaintiff employed counsel immediately after the incident and apparently agreed to pay the fee charged by the attorney. Defendant took no action to underwrite the fee until three months later. Furthermore, nowhere does plaintiff suggest that he forewent the possibility of using a public defender instead of private counsel or that he otherwise changed his position in reliance on that gratuitous promise.

REVERSED AND RENDERED.


text:
    Alfredo P. ROBLES v. OCEANIC MARINE SUPPLY, INC. and Oceanmar Marine Supply, Inc.
    No. 10569.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 1980.

      Henderson, Hanemann & Morris, Philip E. Henderson, Houma, for plaintiff-appellant.
    Derbes & Derbes, James G. Derbes, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff filed this suit to recover commissions and salary earned as a salesman while in defendant’s employ, specifically alleging the incorrectness of several debit entries listed in defendant’s accounting journal of his earnings and charges. Defendant answered and reconvened to collect on two promissory notes executed by plaintiff.

The matter proceeded to trial on June 8, 1978. The parties first stipulated that the journal entries represented a true and correct accounting of plaintiff’s credits for commissions and debits for draws and other charges, except for (a) asserted double entries of debits of 83,000.00 and $2,795.00; (b) debits labeled as interest charges on a $12,000.00 loan; (c) debits for salary and insurance premium payments to plaintiff’s son; and (d) several debits for other unspecified miscellaneous charges. Plaintiff’s rights were also reserved to claim a salary for a certain period, defendant denying plaintiff had worked on a salaried basis during the pertinent period.

Plaintiff then called for a return on a subpoena duces tecum (asserted by defendant to have been improperly and tardily served), and counsel for defendant stipulated that as to the alleged double entries they had checks to support only one entry of $3,000.00 and one entry of $2,795.00 and did not have checks to support debits for the other alleged draws in these same amounts. When defendant’s president was questioned about other records, he pointed to a number of boxes of unsorted papers, and upon suggestion by defendant’s counsel the trial judge continued the matter and eventually referred it to a commissioner.

After two schedulings the matter was fixed for trial on December 11, 1978. Allegedly because counsel inadvertently failed to mark the date on his calendar, neither plaintiff nor his trial counsel (from out of town) appeared. Associate counsel for plaintiff notified by telephone that day, appeared and requested that the commissioner either continue the case or keep the matter open for plaintiff’s evidence on a later date. The commissioner denied the request when defendant’s counsel objected.

The case on the principal demand was then called for trial, and plaintiff’s associate counsel announced he had no evidence to present at the time. Defendant also presented no evidence on the principal demand and immediately began evidence on the reconventional demand.

Defendant’s president testified that from 1971 through the termination of employment in August, 1976 plaintiff had worked strictly on a commission basis and never worked on a salary, except the last two months; that throughout his employment plaintiff had a drawing account against commissions earned and made draws several times per month as he needed money; that in April, 1976 plaintiff had borrowed $12,000.00 to pay income taxes; that on August 4, 1976 he and plaintiff reviewed the account, at which time plaintiff signed a note for $9,135.20 (the amount shown on the account as being owed to the company) and also borrowed an additional $800.00, signing a second note in that amount; and that no payment had been made on the two notes.

Upon the commissioner’s recommendation judgment was rendered dismissing the principal demand and awarding defendant the principal amount of the notes, plus fees, legal interest and costs. ’ Plaintiff then appealed.

The thrust of plaintiff’s appeal is twofold: first, the continuance should have been granted, and second, the evidence in the record by way of stipulation at the original hearing shows (a) as to the principal demand, defendant charged plaintiff $3,000.00 and $2,795.00 twice as a result of double entry errors and (b) interest charged on the $12,000.00 loan was unauthorized and usurious.

We have determined that a remand for retrial is in the best interest of both parties. On the evidence in this record plaintiff is at least entitled to a credit for unsupported accounting entries totaling $5,795.00. In brief to this court defendant claims it now has evidence to support these charges, and a remand would allow presentation of this evidence. Moreover, defendant failed to show any agreement or other basis for the interest charges (which appear to be usurious) on the $12,000.00 loan.

At the trial on remand defendant may be able to present additional evidence and thus prevail as to the substantial items discussed immediately above. Because of the unusual circumstances defendant should be allowed this opportunity. On the other hand, plains tiff is anxious to present the evidence he would have presented but for counsel’s inadvertent error in failing to enter the trial date on his calendar.

Under these overall circumstances an amendment of the judgment to give plaintiff credit for the items discussed above would not best accomplish justice between the parties. A remand to allow both parties the opportunity to present further evidence appears to be the far better course.

Accordingly, the judgment of the trial court is set aside and the matter is remanded for additional evidence by both parties and for decision after consideration of all the evidence. Costs are to be assessed upon final determination.

JUDGMENT SET ASIDE, CASE REMANDED.

      . Defendant charged plaintiff’s account $2,795.00 on April 1, 1975 and again on June 12, 1975 and admittedly had checks or check stubs to support only one of the two entries. Likewise defendant charged plaintiff’s account $3,000.00 on January 16, 1974 and again on January 22, but had checks or check stubs to support only one of the two entries. Thus, defendant has received $5,795.00 of plaintiff’s funds, but has not accounted for these funds or explained its failure to do so.

      . Additionally, this record contains no explanation for the disputed debits for salary and insurance paid to plaintiff’s son.


author: REDMANN, Judge.

text:
    A. Lester SARPY v. Dorothy Mae CAULFIELD, divorced wife of Oscar V. Poydras.
    No. 11128.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      David E. Hogan, New Orleans, for plaintiff.
    Garland R. Rolling, Metairie, for defendant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

Dorothy Poydras appeals from a judgment in favor of A. Lester Sarpy for $1,140 attorney and other fees plus 25% attorney fees and costs. We reverse. Ignoring other problems, we hold that until a prospective lender and the prospective borrower have reached an agreement in writing on the terms of a desired loan to be secured by mortgage on immovable property (subject to property title and value requirements), the agreement to lend is not enforceable by either party and therefore the lender cannot reasonably incur either attorney or appraisal fees and any oral promise by the borrower to pay the lender’s reasonable costs (including those fees) is without effect, in the absence of a showing of special circumstances which would operate' independently as cause for making the promise enforceable.

Sarpy is the attorney for and works in the office of Alphonse Mortgage Company, Inc. We point out that defendant never had any dealings with Sarpy, and that Sar-py was employed not by defendant but by Alphonse (a corporation over which, one infers from the record, Sarpy exercises control); but we decide the case as if Sarpy were authorized to pursue the claim for Alphonse.

In early November 1978 Alphonse learned through one Floyd Johnson, an employee of Broad Mortgage Company and an acquaintance of Poydras, that Poydras was interested in a mortgage loan to refinance an existing loan. Poydras had some telephone discussion with Harold M. Voss, Jr., office manager for Alphonse, and expressed interest if not agreement in a mortgage loan of $58,000 repayable $1,160 monthly for 10 years (for a total of $139,200). Although there is testimony that Poydras agreed to all terms, there is no testimony setting forth the details of any discussion of the prepayment or other terms. At Alphonse’s request Poydras delivered to Alphonse’s night depository insurance papers and a deed or mortgage with property descriptions. Sarpy prepared two printed mortgage forms (showing Adele Lamb as notary) and a note for the full $139,200 giving Poydras no right of prepayment, so that she would have had to pay the whole $81,200 interest on her $58,000 loan if she wanted to sell the property. (A separate proposal, signed by Adele Lamb, secretary-treasurer, conditionally offered a prepayment rebate of 60% of that part of the unearned interest that the sum of the digit methods would allow* Thus Poydras would still have had to pay a penalty of over $32,000 on her $58,000 loan if she immediately wanted to pay the loan off.) Poydras refused the loan.

Sarpy thereafter sued for $40 for mortgage and conveyance certificates (though none were produced at trial), $200 for “redaction and passage of two authentic acts of mortgage,” $700 for “title examinations and opinion” (although Sarpy’s own evidence shows that he wrote no opinion and that his file contained no abstract of title), and $200 “due Alphonse Mortgage Co., Inc., [sic] re appraisal fee.” We conclude none of those fees are due.

The trial judge gave judgment for the’ full amount Sarpy sued for plus costs and— apparently because Sarpy titled his petition “Open-Account” — 25% attorney fees notwithstanding that Sarpy did not have an attorney to try his case but tried it himself.

The express oral promise by a prospective borrower to repay to the lender the reasonably necessary attorney and appraisal fees resulting from a proposed mortgage loan is ordinarily understood as conditioned upon the lender’s enforceable obligation to make the desired loan if title and value of the security offered are suitable. The cause that makes the borrower’s promise enforceable, La.C.C. 1893, is the lender’s agreement to lend. Unless the lender agrees that it will lend (on proper security) on the terms the borrower desires, the lender behaves unreasonably in expending attorney and appraisal fees because neither appraisal nor title examination is necessary. Therefore, when there is no enforceable commitment to lend, the lender must show other circumstances which would constitute cause for making the borrower’s promise enforceable. Moreover, because a mortgage on immovable property “can only be contracted by [notarial] act . . . or by act under private signature,” C.C. 3305, agreement for a loan on such a mortgage must also be in writing to be enforceable.

In our case the lender never had a complete, enforceable agreement to make the loan because of the lack of a writing embodying the agreement. In addition, it is unproven that the lender had reached an agreement with the borrower that the borrower should have no right to prepay the mortgage — which was what the proffered mortgage proposed, although a collateral agreement was then offered to allow a less-than 60% rebate of interest on prepayment. The inference is strong from the documentary evidence that there was no agreement that the mortgage could not be paid off in advance, nor that prepayment would require a penalty of 40% of the unearned interest. After acting prematurely in having legal and appraisal work done without a loan being properly agreed to, the lender proposed a loan with a prepayment penalty of over 40% of all unearned interest, which Poydras reasonably rejected. The lender therefore could not oblige Poydras to pay its unreasonable legal and appraisal fees.

Reversed; judgment for defendant with all costs.

      . The interest rate on this loan thus appears to have been 21% 'per annum, prohibited by La. R.S. 9:3503. We pretermit exploration of the implications of the invalidity of an agreement to borrow at usurious interest.