text:
    Paul A. O’BRYAN, Jr. v. Iris Alvarez De O’BRYAN.
    No. 13583.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Paul A. O’Bryan, Jr., in pro. per.
    Alan S. Fishbein, Baton Rouge, for plaintiff-appellee Paul A. O’Bryan, Jr.
    John L. Glover, Baton Rouge, for defendant-appellant Iris Alvarez De O’Bryan.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff, Paul A. O’Bryan, Jr., filed a petition for divorce on January 18, 1977, against his wife, Iris Alvarez de O’Bryan, on the ground of living separate and apart for two years. Mentioned in the petition was the existence of two minor children born of the marriage, but no prayer for custody was contained therein. The trial judge appointed John L. Glover, an attorney, to represent the defendant, Mrs. O’Bryan, a nonresident domiciled in Guatemala.

Mr. Glover contacted Mrs. O’Bryan concerning the suit and filed an answer and a reconventional demand seeking custody of the couple’s two minor children and child support. After negotiations among the attorneys representing both sides, an agreement was reached concerning the custody of the children and the amount of support payments.

On October 12, 1977, the trial judge rendered judgment granting an absolute divorce to the plaintiff-appellee. In addition to the divorce decree, the court granted custody of the couple’s two minor children in accordance with a stipulation entered in the record. The plaintiff was awarded custody of the minor son, while the defendant was awarded custody of the minor daughter. The plaintiff was ordered to pay $200 a month in child support for the minor daughter and to keep her name on the insurance policy he had with his employer.

The defendant was advised of the judgment by her counsel and she objected to the custody order. Mr. Glover then filed for a devolutiye appeal to this court seeking to overturn the judgment of the trial court as it related to custody and child support. In an unreported decision, # 11,980, this court remanded the case to determine the matters relating to custody and child support but affirmed the finality of the divorce. Therein this court stated:

“Considering that plaintiff and defendant live in different countries, and that it is apparent that the issue of custody and child support was decided based upon the erroneous agreement entered into, we are of the opinion that the interest of justice demands that the judgment as it relates to custody of both minor children as well as the issue of child support be reversed and remanded to the trial court for a new trial on those issues alone.” O’Bryan v. O’Bryan, # 11,980 1st Cir. May 1, 1978 unreported.

Mr. Glover then filed a rule to show cause in the trial court seeking compensation for his services as attorney ad hoc and for anticipated expenses of conducting discovery in preparation of trial to determine custody of the children and child support. Plaintiff-appellee filed exceptions of lack of procedural capacity, vagueness, and failure to show a right and/or cause of action.

The trial judge sustained the exception of no right of action based on the comments under Code of Civil Procedure, Articles 5094 and 5095. After his motion for a new trial was denied, defendant-appellant appealed to this court for a second time.

The issues presented on appeal concern the duties of a court appointed attorney in a divorce suit coupled with incidental matters of custody and child support. We will discuss these duties as they relate to each matter.

The duties and responsibilities of a court appointed attorney are set forth in the Code of Civil Procedure. Articles 5094 and 5095 and the comments under them read as follows:

Article 5094:
“When an attorney at law is appointed by the court to represent a defendant who is a nonresident or an absentee, the attorney shall use reasonable diligence to communicate with the defendant and inform him of the pendency and nature of the action or proceeding, and of the time available for the filing of an answer or the assertion of a defense otherwise.
Comments
(a) Notice of the pendency of the suit, and of the time available to the defendant for asserting his defense, are two of the most important duties of the appointed attorney in such cases.
(b) The phrase ‘the assertion of a defense otherwise’ applies to executory proceedings, where no exceptions or answer may be filed, and all defenses must be asserted either in a suit for an injunction to arrest the seizure and sale, or through a suspensive appeal.”
if: sk * sfc * *
Article 5095:
“The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof. “Except in an executory proceeding, the attorney may except to the petition, shall file an answer in time to prevent a default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant.
Comments
(a) This article is based upon customary practices which are regarded as proper. The appointed attorney has no authority to force the defendant to become the actor by filing a separate suit in his name, or by calling in a third party defendant, or by reconvening. His function, and his sole authority under the law, is to defend the pending action or proceeding, and he may not commit the person he is appointed to represent in any other manner.”
* * * * * *

The general rule established in the jurisprudence is summarized in Johnson v. Jones, 170 La. 760, 129 So. 155, 156 (1930), as follows:

“. .. A curator ad hoc is appointed for a particular purpose under express statutory authority. His powers are strictly limited to those conferred by law, and cannot be extended to the performance of any other acts than such as tend to the defense of the rights and the protection of the interests of the absentee whom he represents. .. . ”

In the original petition for a divorce filed herein, plaintiff alleged the existence of two minor children of the marriage. This placed the trial judge on notice of the existence of the two children who then had a statutory duty to determine the custody of the children in the divorce decree. La.C.C. art. 157.

La.C.C. art. 157 in part provides:

“In all cases of separation and divorce, ... permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, ...” (Emphasis added).

Under this article the trial judge is mandated to determine which parent will have custody of the two children. The use of the word “shall” in the article has long been construed as a mandate. Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975) and Succession of Thibaut, 224 So.2d 852 (La.App. 1st Cir. 1969).

Two cases that have touched on the subject are Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972) and Wilson v. Wilson, 218 So.2d 372 (La.App. 2nd Cir. 1969). Under Griffith, Justice Barham states: “... In Louisiana, however, under a literal reading of our Code, during the pendency of litigation for separation from bed and board or divorce or upon judgment of separation or of divorce, the court is empowered, perhaps mandated, to determine the custody of the minor children as between the parties, the parents.” (Underscoring added). Where in the Wilson decision, the court states: “. .. The mother having obtained the divorce, Civil Code Article 157 makes it mandatory that the care and custody ‘shall’ be placed with her.. .. ”

The statute has been amended while this case has been pending, but the amendments did not change the mandatory language requiring the trial court to make a custody determination in all divorce decrees.

Since the trial court was mandated to dispose of the custody matter in conjunction with the divorce, the court appointed attorney needs to defend that issue. He could and should have raised the custody issue in his answer. But even in the absence of the issue being raised in the answer, the matter was still before the trial court for the reasons hereinbefore stated. The erroneous presentation of this issue in a reconventional demand, which cannot be filed by an attorney in his capacity as a court appointed attorney, does not detract from the fact that the issue was already properly before the trial court and could be defended by the court appointed attorney in that capacity.

The next issue before this court is whether Mr. Glover could file a reconven-tional demand for child support. The determination of child support is a separate question from the custody issue. Since the plaintiff did not make child support an issue in his petition, Mr. Glover did not have to defend on this issue nor was he authorized to seek child support in his capacity as a court appointed attorney.

By filing a reconventional demand for child support, Mr. Glover was no longer advancing a defense for his absentee client, but was asserting additional relief on her behalf. He could only do this if he had been retained by Mrs. O’Bryan. The record establishes that Mr. Glover has never been hired or retained by Mrs. O’Bryan to represent her in this matter.

A careful examination of the law reveals no mandatory duty imposed upon the trial court to dispose of child support in a divorce proceeding. The two questions of custody and child support are as a practical matter generally brought together. However, depending upon what disposition is made on the custody issue, the claim for child support may or may not become an issue.

The trial court was correct in dismissing the Rule to Show Cause on the exception of no right of action as it relates to child support, but not in regards to custody of the children. Since the issues are split, Mr. Glover can continue to represent the absentee defendant in regards to the custody matter as her court appointed attorney. As to child support, Mrs. O’Bryan will need to secure counsel to advance that issue if the need arises.

For these reasons, the judgment of the trial court sustaining the exception as to the issue of child support is affirmed and vacated as to the issue of child custody. Judgment is rendered overruling the exception as to the issue of child custody and the case is remanded for further proceedings consistent herewith. Costs of this appeal are to be paid by appellee.

AFFIRMED IN PART, REVERSED IN PART, RENDERED AND REMANDED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Jenny Lee Smith BAGGETT v. CITY OF BOGALUSA.
    No. 13585.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Garic Kenneth Barranger, Barranger, Barranger, Jones & Fussell, Covington, for plaintiff.
    Donald M. Fendlason, Fendlason & Farmer, Bogalusa, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant, City of Bogalusa, from a judgment in favor of the plaintiff, Jenny Lee Smith Baggett, for the sum of $32,147.61, as a result of personal injuries the plaintiff sustained in a trip- and-fall case while using the public streets of the defendant municipality. We affirm.

The plaintiff, a 35-year-old woman who was employed as a practical nurse in an internist’s office, tripped and fell over an elevated portion of a public street. This elevation resulted from a patch job repair which had been made by employees of the municipality in patching a hole in the roadway, the patch job extending about two inches above the level of the concrete surface of the street. At the time of the accident, the plaintiff was crossing Avenue F (the principal business district street for that section of Bogalusa known locally as Pleasant Hill) in the middle of the block to obtain admission tickets to an athletic event from the owner of a commercial establishment situated on the opposite side of the street from where the plaintiff had parked. As a result of the accident, she sustained a non-displaeed fracture of the lateral malleous of the left ankle, resulting in thrombo-phlebitis and a pulmonary embolism. The trial court found Mrs. Baggett free of negligence and the city guilty of negligence in failing to maintain the public street in a reasonably safe condition for the use of pedestrians exercising ordinary care. The trial court further found that the “condition of the street at the accident scene was defective and constituted a trap.”

The facts of the record reflect that on February 17, 1973, about 3:30 P.M., Mrs. Baggett parked her automobile on the east side of Avenue F near the center of the 700 block (the street is 60 feet from curb to curb and generally runs in a north-south direction). After allowing the traffic to clear the 700 block, she began to cross the street. At some point near the centerline of the avenue, she noticed that a car (which had been parked at the time she started across the street), had backed out from the curb and had commenced moving in her direction in a sudden and rapid maneuver. While watching the car, she hurried to cross the street and, as she did so, she tripped and fell on the elevated patch in the road.

In considering the negligence of the plaintiff, the trial court found that there was no city ordinance forbidding the crossing of the roadway at points other than at the corners of the streets, and that it was a common practice for pedestrians to cross the street in the place and manner that the plaintiff had done. The trial court further found on this question that the plaintiff was attentive to the traffic situation, and observed that but for her attention, there was a likelihood that she would have been struck by the car that suddenly approached her. The court concluded that Mrs. Bag-gett “was free of negligence. She had no reason to assume the street unsafe for a quick dash to safety.” We agree. The record supports the trial court’s finding.

The law of this state relating to the duty owed by the City to users of public streets and sidewalks is succinctly stated by the Court in Reinhard v. City of New Orleans, 371 So.2d 286, 288 (La.App. 4 Cir. 1979), writ denied, 374 So.2d 656 (La.1979):

“The city has a duty to maintain its streets and sidewalks in a safe condition for use by the public.”

In the case of St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273, 276 (1964), the Court said:

“We must first make a determination as to whether the instant defect was dangerous or was in the nature of a trap. In White v. City of Alexandria, 216 La. 308, 43 So.2d 618, this Court found that there is no fixed rule for making such a determination; the facts and surrounding circumstances of each particular case control.

There is no fixed and hard rule for determining the liability of a municipality; the facts and circumstances of the particular case must be considered by the Court for this determination. The necessary steps which a Court must take in order to determine a municipality’s liability were set forth in St. Paul v. Mackenroth, supra, pages 276-277, 165 So.2d 273 (a case in which the city was held to have had constructive notice of the defect in a sidewalk, because the defect “had been in existence for a long period of time” and that “it was in the nature of a trap.”), as follows:

“In order to assess liability in a matter such as the instant one, it must be shown (1) that the unsound condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent person, and (2) that the municipality had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. In other words, if the defect is slight, there can be no recovery and, even if it is patently dangerous, the municipality is not reponsible (sic) unless it has had actual notice of it or unless the condition has been permitted to remain in its dangerous state for such a length of time as to warrant the conclusion that the municipality is negligent in failing to discover and correct it. Parker v. City of New Orleans, La.App., 1 So.2d 123. See, Cobb v. Town of Winnsboro, La.App., 49 So.2d 625; Foster v. Employers Liability Assurance Corporation, Ltd., La.App., 129 So.2d 913; Bond v. City of Baton Rouge, La.App., 129 So.2d 887.”

The evidence in the instant case is convincing that the City of Bogalusa had “constructive notice” (if not actual notice) of the condition of Avenue F, because the defective patchwork had been performed by the city’s employees, had been in existence for a considerable period of time, and was in the nature of a trap. In remarking on the evidence relating to this issue, the trial judge said:

“It is obvious to the Court that the defective street condition was in existence for many months before the accident. The absence of any inspection procedure coupled with the fact that several City employees charged with the responsibility of street maintenance passed the defective patch on many occasions leads to the inescapable conclusion that the City must be charged with constructive notice, if not actual notice of the defective condition.”

The trial judge also found as a fact that the “two inch extrusion above the street level” was a defective patch and constituted “a trap” which was dangerous to crossing pedestrians. We also are of the opinion that under the foregoing circumstances the two-inch extrusion is an unusually hazardous and trap-like condition. It is certainly foreseeable that a pedestrian crossing this important business thoroughfare might injure himself by tripping and falling on this defective patch. See Eble v. City of New Orleans, 181 So.2d 805 (La.App. 4 Cir. 1966).

We are in accord with the foregoing findings of fact and conclusion of the trial judge, and likewise conclude that the proximate cause of the plaintiff’s damages was the defendant’s negligence. We have studied the cases cited by the City and find them inapposite.

The City also complained on appeal of the quantum awarded. For the serious injuries sustained by the plaintiff herein, we consider the modest award made by the trial court to be well within its discretion. LSA-C.C. art. 1934(3). The plaintiff suffered a broken ankle, requiring a cast. Soon after the accident, the plaintiff had to be admitted to the hospital suffering from thrombophlebitis. As a result of the throm-bophlebitis, a clot broke loose and caused a pulmonary embolism. The plaintiff’s ankle fracture and resulting thrombophlebitis and pulmonary embolism caused Mrs. Baggett considerable pain and mental anguish. Due to the injury and consequential medical problems, plaintiff was on crutches until the end of the summer of 1973. She was unable to work, had no income (she was the sole provider of her family unit), and consequently lost her home, automobile and insurance policies. The award to Mrs. Bag-gett is supported by the evidence, and there is no manifest error in fixing the award permitted by the trial court. We thus affirm the award.

For the above and foregoing reasons, the judgment is affirmed at defendant-appellant’s costs.

AFFIRMED.

      [“5 ‘From this jurisprudence there have evolved certain legal principles which are to be considered in determining the instant controversy. Thus, a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury. Defects in sidewalks that are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Such ways of passage are intended for public use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.
      ‘For determining what is a dangerous defect in a sidewalk (that which renders the municipality responsible in damages to a pedestrian injured as a consequence thereof) there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable safe condition for persons exercising ordinary care and prudence.’ See, Toppi v. Arbour, La.App., 119 So.2d 621.”]

      . In view of the recent case of Leroy Jones et ux. v. The City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 on the docket of the Supreme Court of Louisiana, and its application of LSA-C.C. art. 2317 to municipalities and other public bodies, “notice” may no longer be a requisite to proving liability against such public bodies. Once the injured party proves custody, defect and causation, “the custodian can escape liability only by showing that the harm was caused by the fault of the victim (injured party), by the fault of a third person, or by an irresistible force.” In other words, the “strict liability” of Loescher v. Parr, 324 So.2d 441 (La.1976), has been extended to public bodies.


author: CHIASSON, Judge.

text:
    Jackie E. LITTLE v. Glenda Breeland LITTLE.
    No. 13595.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Lennie F. Perez, Baton Rouge, for plaintiff.
    Chester Hugh Boyd, Baton Rouge, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Defendant-appellant, Glenda Breeland Little, appeals the judgment of the trial court annulling two documents executed between her and her former husband, Jackie E. Little, plaintiff-appellee. The two documents are a “Sale with Assumption of Mortgage”, transferring the community home to the appellant, and a “Contract of Assumption of Indebtedness”, in which ap-pellee bound himself for the debts of the community then existing.

Jackie E. Little and Glenda Breeland were married on January 4, 1969, and lived together as husband and wife until Glenda received a divorce on July 26, 1977. No Separation of Bed and Board had been filed for or obtained. Representing Glenda at the time was Samuel T. Rowe who prepared the two documents in question. Appellee alleges that these documents were signed prior to the actual divorce in which case they would be null and void because executed in violation of the provisions of law which forbid husbands and wives from contracting with each other.

Appellant contends that the documents were signed after the divorce in the office of Mr. Rowe. Two employees in the office of Mr. Rowe signed as witnesses to the documents, with one witness signing the two documents under two different names. The trial court rendered judgment in favor of the appellee annulling the documents and appointing a notary to conduct an inventory of the community property existing between the parties.

The four issues that appear before this court are: (1) Can an authentic act be attacked by parol evidence? (2) If it can, did the appellee prove that the acts were not executed on the date that was on the documents? (3) Was there some incapacity to the parties contracting? (4) Was there a ratification of these contracts?

The fact that these two documents are authentic acts does not protect the agreements from attack. The authentic acts are only representations of the contracts entered into between the parties. La.C.C. art. 1762 provides:

“The contract must not be confounded with the instrument in writing by which it is witnessed. The contract may subsist, although the written act may, for some defect, be declared void; and the written act may be good and authentic, although the contract it witnesses be illegal. The contract itself is only void for some cause or defect determined by law.”

Article 1779 of the Louisiana Civil Code lists the requirements for the validity of a contract:

(1) Parties legally capable of contracting.
(2) Their consent legally given.
(3) A certain object, which forms the matter of the agreement.
(4) A lawful purpose.

The attack on these two documents in the present suit is under the general incapacity rules as they relate to husbands and wives to contract with each other under Article 1790 of the Civil Code which at the time provided:

“Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.” (Emphasis added).

Article 2446 of the Civil Code prohibits the contract of sale between husbands and wives except in three instances:

* * * * * *
“1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
“2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
“3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry-
“Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”

Plaintiff is attacking the capacity of the parties to contract contending the parties entered into such an agreement before the divorce was granted. However, the documents were in authentic form. Louisiana Civil Code Article 2234 defines an authentic act as follows:

“The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument. . . . ”

The significance of these documents being in authentic form is explained in Article 2236, which provides:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”

In the Sale with Assumption of Mortgage, the capacities of the parties were stated that both were once married and are divorced from each other. The Contract of Assumption of Indebtedness recited the fact that the two parties were divorced from each other.

Plaintiff at trial introduced evidence to the effect that the agreements were not in fact signed on July 26, 1977, but a week earlier. If established, plaintiff would be showing that the parties contracted while they were still married in violation of the provisions of the Civil Code previously cited.

Plaintiff used the testimony of his former wife in a prior child support hearing. There appellant testified that the contracts were executed a week before the divorce was granted. Appellee’s brother, Michael Little, also testified to the fact that he accompanied his brother to the Courthouse the morning of the divorce proceeding and they left immediately afterwards to return to Plaquemine. Appellee also testified that the documents were signed in Mr. Rowe’s office a week prior to the judgment of divorce.

None of this evidence was objected to by the appellant’s attorney during the trial. Appellant’s retained counsel on appeal is now contesting the use of the parol evidence to prove the incapacity of the parties to contract in direct contradiction of what was stated in the authentic acts. Appellant is contending the trial court erred in allowing the use of such evidence in violation of Civil Code Article 2276, which provides:

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.”

Defendant’s contention that parol evidence cannot be used to attack an authentic act fails, in that the plaintiff is attacking the capacity of the parties to contract.

In this regards, the lack of capacity of the parties is a violation of the laws relating to contracting. As was stated in Smith v. Smith, 239 La. 688, 119 So.2d 827, 829 & 830 (1960) and the long line of jurisprudence that followed:

“... Since contracts between spouses are specifically forbidden by Articles 1790 and 2446 of the Civil Code, save for the three purposes detailed in Article 2446, it follows that any husband and wife who attempt to contract in violation of those restrictions do so in fraudem Iegis. If parol evidence is admissible to show fraud practiced on one of the contracting parties, it would, a fortiori, appear that it should be received when the fraud has been perpetrated on the law itself. And so this Court has held that parol evidence may be introduced to show that any obligation has been contracted in fraudem Iegis regardless of what form may have been given to the reprobated contract. Lazare v. Jacques, 15 La.Ann. 599; Kelly v. Kelly, [131 La. 1024, 60 So. 671] supra; Ducote v. Stark, La.App., 87 So.2d 770.
“If Article 2236 were to be applied and parol evidence excluded in cases involving the absence of consideration in contracts between a husband and wife, the spouses could easily evade the restrictions of Article 2446 and make prohibited contracts with each other simply by using the authentic act to disguise the true circumstances. But such manipulations are not sanctioned in view of Articles 11 and 12 of the Civil Code:
‘Art. 11. Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals. * * * ’
‘Art. 12. Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.’ ”

With the determination that parol evidence is admissible, the next inquiry is whether plaintiff met his burden of proving that the documents were signed a week earlier than was stated therein. From the parties’ testimony and the testimony of plaintiff’s brother, Michael Little, the trial court made the determination that the Sale with Assumption of Mortgage and the Contract of Assumption of Indebtedness were signed prior to the divorce decree and were null and void. Under Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), “... the appellate court should not disturb such a finding of fact unless it is clearly wrong.” Under this mandate, we find the facts found by the trial court are reasonably supported by credible evidence and the decision of the trial court is not clearly wrong.

Since the evidence proved that the parties contracted prior to the divorce decree, the two contracts were null. The fact that the instruments reflected a different capacity is of no consequence since the contracts and not the instruments are of importance. Article 1762, supra.

The last issue appellant makes is that the contracts were ratified by the parties after the divorce. Under La.C.C. arts. 1790 and 2446, we hold that the agreements were relative nullities. Appellant now argues that the agreements, although null, have been ratified by the parties and are binding on them nonetheless — citing Tilton v. Tilton, 162 So.2d 733 (La.App. 4th Cir. 1964); Fisher v. Fisher, 261 So.2d 85 (La. App. 3rd Cir. 1972); and Clay v. Clay, 358 So.2d 649 (La.App. 1st Cir. 1978).

Appellee contests the defense of ratification, raised for the first time in this appeal, claiming that this is a special defense which should have been affirmatively pleaded in appellant’s answer. The Supreme Court in the case of Webster v. Rushing, 316 So.2d 111 (La.1975) explains this issue in the following manner:

“Even before the adoption of the 1960 Code of Civil Procedure, a defendant had to plead special defenses affirmatively in his answer. Presently, it is provided in article 1003 of the Code of Civil Procedure that the answer ‘shall set forth all affirmative defenses as required by Article 1005.’
“Article 1005, in addition to listing certain affirmative defenses which must be specially pleaded, contains the omnibus recital ‘and any other matter constituting an affirmative defense.’ (Emphasis added.) Thus, the listing of the named affirmative defenses in this article are merely illustrative. An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits. . . . ” (Footnotes omitted).

In the instant case, if ratification would have been pleaded even in the alternative, appellant would have admitted the nullities of the contracts and would have claimed that, although the contracts were null, ap-pellee ratified them by his actions. This is a new matter which would have defeated appellee’s claim. Under the above guidelines, the issue of ratification is a special defense which should have been affirmatively pleaded. Additionally, we approvingly quote from this court’s holding in Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973), as follows:

“... While La.C.C.P. Art. 2164 provides that an appellate court may render any judgment which is just and proper on the record, it is well settled that a defense not pleaded in the trial court may not be raised for the first time on appeal. . . .”

For these reasons we decline to consider appellant’s defense of ratification raised for the first time on appeal.

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

AFFIRMED.


text:
    Clydene W. PHILLIPS and George M. Cotton v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 13598.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Emile C. Rolfs, Baton Rouge, of counsel, for plaintiffs-appellants Clydene W. Phillips et al.
    Joseph S. Cage, Jr., Monroe, of counsel, for defendant-appellee Board of Supervisors of Louisiana State University and Agricultural & Mechanical College.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants, Clydene W. Phillips and George M. Cotton, appeal the decision of the trial court denying them a preliminary injunction against defendant-appellee, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (Board). Appellants seek to enjoin the Board from any further acts in violation of La.R.S. 42:4.1 et seq., commonly referred to as the “Sunshine Law” or “Open Meeting Law”. Appellant contends their constitutional rights were violated by the Board and its committees by meeting in illegal executive sessions thus denying appellants the right to observe the deliberations of the Board and of its committees.

The issues are as follows:

(1) At the time of the dispute, did the “Open Meeting Law” apply to the individual committees of the Board under the facts of this case?
(2) Did the Board go beyond the authorized statutory exemptions when meeting in executive session?
(3) Did the Board take final, binding action while in executive session?
(4) Are appellants entitled to the injunc-tive relief sought?

Appellants argue that the “Open Meeting Law” applies to the committee meetings when the committees are composed solely of members of the regulated body and when the actions of the committees constitute, in fact, actions of the whole Board.

It is clear that at the time of this dispute La.R.S. 42:5 did not list “committees” as a public body. This section at that time read as follows:

“§ 5A. For the purpose of R.S. 42:4.1 through R.S. 42:10, ‘meeting’ means the official convening of town and city councils, police juries and other governing bodies; school boards and boards of levee and port commissioners; boards of publicly operated utilities; and all state, parish, or municipal boards or authorities with policy making or administrative functions which receive or expend tax funds, the legislature specifically exempted, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Such meetings shall be open to the public.”

We agree with the trial judge’s holding that committee meetings of the Board were not subject to the “Open Meeting Law” for the reasons stated in his Reasons for Judgment which we quote as follows:

“It is clear that committees are not mentioned in this section. In contrast, the original bill, Senate Bill No. 591, defined a public body to include ‘any board, commission, committee, subcommittee or other subsidiary thereof.’ That language was deleted by action of the Conference Committee before final passage of the bill, and the language of section 5, quoted above in full, was substituted in its place. From these legislative actions, the Court concludes that the statute, as it was then written, was not intended to cover committees. In further support of this conclusion, the Court notes that the 1979 amendments to the Open Meetings Law specifically extend its coverage to committees and subcommittees. R.S. 42:4.-2[(A)](2). Even assuming that the definition in R.S. 42:5 intended to include committees although not mentioned, the LSU Board committees do not receive or expend tax funds, the seemingly indispensable condition required by the statute for a state board or authority to fall within its scope.”

Appellants’ argument that the actions of the committees were actions of the full Board is not supported by the record herein. To the contrary, the record affirmatively establishes that all actions were taken by the full Board and the recommendations of the committees were just recommendations, which were always acted upon by the full Board.

Four of the seven meetings complained of by the appellants dealt with committee meetings which, for the reasons previously stated, we will not consider further.

The remaining three meetings of the Board complained of are as follows:

(1) April 14, 1978—The Board met in executive session to discuss prosecution of a pending law suit;
(2) July 28, 1978—The Board met in executive session to decide the position of Chancellor at the Alexandria campus;
(3) January 26, 1979—The Board met in executive session to discuss personnel changes in the athletic department.

The law provided exemptions to the requirement of public meetings as follows:

R.S. 42:6.1:
“A. A public body may hold a meeting closed to the public pursuant to R.S. 42:6 for one or more of the following reasons:
(1) discussion of the character, the professional competence, or physical or mental health of a single individual provided that such individual may require that such discussion be held at an open meeting;
(2)strategy sessions or negotiations with respect to collective bargaining or litigation, when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body;”
sf: * sfc # ‡

The meeting of April 14, 1978 falls squarely within the exemption provided for by Section 6.1 A.(2). The July 28, 1978 and January 26, 1979 meetings fall within Section 6.1 A.(l) since the Board discussed the character, the professional competence of the Chancellor of the Alexandria campus and personnel changes in the athletic department.

The record in this case does not support appellants’ contentions that the Board went beyond the matters allowed to be exempted and were using the closed meeting to defeat the purposes of the “Open Meeting Law”. Nor did the Board take any final, binding action in any of its executive meetings.

Appellants also urge that the Board, in going into executive session, did not state verbatim the language of the statute for its reasons. The Board used the phrase “personnel matters” when it referred to reviewing the qualifications, character and professional competence of an individual before going into executive session. Simply because the language of the statute is not recited verbatim is of no consequence if the intent and spirit of the statute is being carried out.

Appellants further seek to assert violation of another’s rights to entitle them to injunctive relief. They claim that Dr. Cleveland’s right to have the full Board hear his matter in a public meeting was violated. Appellants cannot assert the rights of another. Dr. Cleveland is not a party to this suit nor was he called as a witness. As the Supreme Court stated in State v. Board of Liquidation, 136 La. 571, 67 So. 370 (1915):

“Wherever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the advantage to be derived to the party prosecuting, by its performance, is merely incidental and no part of the design of the statute, no such right is created as forms the subject of an action.”

Appellants have failed to prove any violation of the “Open Meeting Law” by the Board and are therefore not entitled to injunctive relief.

For these sessions, the judgment of the trial court is affirmed and the case remanded for further proceedings. All costs of the hearing for the preliminary injunction, including this appeal, are taxed against appellants. All other costs are to await the final disposition of this matter on the merits for a declaratory judgment and a permanent injunction.

AFFIRMED AND REMANDED.

      . Louisiana Constitution of 1974, Article 12, Section 3 provides:
      “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”


author: LEAR, Judge.

text:
    Kenneth G. HOLDER v. GILL & DAVIDGE et al.
    No. 13608.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Douglas T. Curet, Hammond, for plaintiff.
    Henry A. Mentz, Jr., Hammond, for defendant, Gill & Davidge.
    Robert Vandaworker, Baton Rouge, for defendant, Champion International Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

In June, 1977, Kenneth G. Holder purchased 1,200 board feet of “Novoply” for the sum of $348.00 from Gill & Davidge, Inc. a hardware store located in Natalbany, Louisiana. Holder intended to use the wood for the construction of an apparatus used in hydroponic tomato farming. Hydroponics is a system of growing plants in a water and fertilizer solution. Hydroponic tomato farming involves the technique of building and using a long table which has a drop of one (1) inch for every eight feet. On top of the table there is a plastic tube through which water flows containing nutrients and the tomatoes grow in the tubes. According to the trial testimony of plaintiff, he set up such an operation after going to Florida to purchase a kit and obtaining working knowledge of hydroponics.

Upon his return, he and a colleague began looking for materials to build the tables with. Inquiry was made of defendant-ap-pellee, Gill & Davidge, Inc., as to whether it sold “shelving boards”. There are contradictory versions of what transpired, but 1,200 board feet of “Novoply” was purchased and used by Holder, plaintiff-appellant, to construct the tables. Within a month’s time, the boards began to warp and buckle because of the moisture and humidity. Holder’s crop was severely damaged and it was necessary to destroy that crop, reconstruct the tables and start anew. He filed suit against Gill & Davidge, Inc. and the manufacturer of the board “Novoply”, Champion International d/b/a Champion Building Products, seeking $82,377.30 for loss of crop and market, mental anguish and attorney fees. After trial by jury, plaintiff’s suit was dismissed. He then instituted this appeal. We affirm.

The crux of this case is a dispute between the parties as to what transpired between them during appellant’s acquisition of supplies and materials for the construction of his hydroponics farm. Appellant contends that he sought the advice and assistance of Miss Patricia Gill who is the vice-president of Gill & Davidge, Inc. and one of its salespersons. Miss Gill disputes this and states that a Mr. Bob Hamilton, appellant’s colleague, is the person with whom she spoke. She states that she made a telephone call to the manufacturer while Hamilton was present and that she conveyed the substance of the conversation to Hamilton. The following is excerpted from the testimony of Patricia Gill on cross examination:

“Q. Did you call the Champion Company to discuss the Nova ply, or it’s (sic) abilities, or inabilities, before you ordered in June of ’77?
We called and from the description that I had I told the man that it would be running through a small tube, which was the picture that I had, and that no water would be exposed in the greenhouse. He said well as long as there is no high humidity it should do the work, it should be able to hold up under a four foot center.
And do you recall who you spoke with? O’
No sir I don’t. <1
Was it someone at Champion? O’
Yes it was someone at Champion, but I don’t remember who it was. They might not have even said their name. <1
And the information you received was it not to be used in high humidity situations? O’
Right. i>
Did you pass that on . . . I©
Or where water would have gotten on it directly. í>
Did you pass that on to Mr. Holder or Mr. Hamilton? <©
Mr. Hamilton was there when we called.
What about Mr. Holder? o
Mr. Holder wasn’t there. c
And it’s your testimony that you have not spoken with him on any other occasion other than on the 20th and again when he gave you the check? o
I said a little bit earlier I don’t necessarily even remember him coming in to pay for this material. I do remember talking to the gentleman over the phone to get directions to his house. I can’t remember him being in there at all.
And you don’t recall any conversations with him, that is Mr. Holder, advising him of the capabilities or incapabilities of Nova ply? o
No sir I don’t. I remember dealing with Mr. Hamilton.”

Thus defendant-appellee testified that the order was then placed only after plaintiff’s agent, Hamilton, was given the above quoted information and after he was permitted to inspect a section of “Novoply”.

Appellant specifies the following errors: (1) the jury’s verdict is contrary to the law and the evidence; (2-A and B) the court erred in admitting certain evidence and (3) the court erred in denying certain instructions.

In Specification of Error No. 1, appellant avers that the verdict of the jury is contrary to the law and the evidence. It is without sufficient specificity; further, a study of the record does not reveal any abuse of the much discretion vested in the trier of fact.

In essence, therefore, the jury was confronted with a contest of credibility of witnesses. This court has long held that a jury verdict should be maintained unless the record reflects that the jury’s conclusions of fact are not supported by the evidence or its application of the law is clearly erroneous. Broussard v. Missouri Pac. R. Co., 376 So.2d 532, La.App. 3rd Cir. (1979); Canter v. Koehring Company, 283 So.2d 716 (La.1973). In its response to the interrogatories submitted the jury answered thusly:

“BY THE COURT:
Who is the foreman of the jury? Mr. Salassi. Mr. Salassi have you all reached a verdict?
BY MR. SALASSI:
We have.
[BY THE COURT:]
Q Have you written the interrogatories as requested?
A Yes sir.
Q Are they signed and dated?
A It was dated already, and I signed it.
BY THE DEPUTY CLERK:
1. Did Kenneth Holder suffer damages caused by either or both defendants? No.
2. Is Gill and Davidge, Inc. alone the cause of the damage, if any, suffered by Kenneth Holder? No.
3. Is Champion International Corporation d/b/a Champion Building Products alone the cause of the damage, if any, suffered by Kenneth Holder? No.
4. Did Kenneth Holder assume the risk? Yes.
BY THE COURT:
All right. Then No. 6, the damages suffered by Kenneth Holder is all blank?
BY THE DEPUTY CLERK:
It is all blank.”

It is clear from a reading of the record that the jury resolved the conflicts in testimony and the issues of credibility in favor of defendant-appellees. We find no manifest error in the result. The guidelines articulated in Canter are equally applicable herein:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In Specifications of Error 2A and 2B, appellant complains of the alleged receiving into evidence of incompetent, irrelevant and totally inadmissible demonstrative evidence, which was, he states, manifestly erroneous and prejudicial. We do not find that to be true, Arguendo, if such an assumption were made, there was other competent, relevant and admissible credible evidence to justify the finding of the jury.

In Specification of Error No. 3, appellant contends that the court erred in failing to give an alleged proper jury instruction, citing Peltier v. Seabird Industries, Inc., 309 So.2d 343 (La.1975). Appellant relies upon the dictum in that case regarding “professional vendors”, enunciated by former Justice Barham. Such is merely a theory and is not the accepted law of our state. As stated in Barrios v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971) the trial judge may properly refuse to give a requested instruction when some portions thereof are not correct statements of law, or are simply argument, or have been covered in the charges given to the jury.

Further, we have the complete record before us and, under the doctrine of Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), even if the instructions were erroneous, we have a duty to decide the case. We are convinced that the general charge adequately covered the matter and, further, that the plaintiff did not bear the burden of proof.

For the foregoing reasons, the judgment of the trial court is affirmed, and appellant is to pay all costs of this appeal.

AFFIRMED.

      . “Novoply” was described by the manufacturer testifying at trial as a particle board that is made from engineering wood chips, pressed from a thick mat down to the thickness desired. It is made of wood chips and adhesives.


text:
    CRAWLER SUPPLY COMPANY, INC. v. BITUMINOUS CASUALTY CORPORATION.
    No. 13614.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Warren L. Mengis, Baton Rouge, for plaintiff, Crawler Supply Co., Inc.
    R. Michael Caldwell, Baton Rouge, for defendant, Bituminous Cas. Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Plaintiff, Crawler Supply Company, Inc., appeals from a judgment awarding an allegedly insufficient recovery for a fire loss insured by defendant, Bituminous Casualty Corporation. In addition to seeking an increase in the award, appellant seeks penalties and attorney’s fees for appellee’s failure to pay the loss timely. Appellee has answered the appeal, contending that the trial court erred in awarding any amount of recovery to appellant. We amend and, as amended, affirm.

The fire in question occurred on October 18,1973, in Franklin County, Mississippi, to the insured property, a 1973 Case 825 log skidder, about five months after its purchase. The skidder had been sold, new, by appellant to Clemon Durham, a resident of Mississippi, on May 21, 1973. The purchase price was for $32,434.78, of which $6,309.58 was paid in cash, leaving a balance of $26,-125.20 [$26,125.28] which was represented by a note secured by a “conditional sale contract.” The note and security were assigned by appellant to CIT Corporation. Subsequently, fire insurance was obtained from appellee in the amount of $26,125 with a $250 deductible provision.

On October 18, 1973, during the coverage period of the insurance policy, the log skid-der caught fire and was damaged while it was being operated. After negotiations for settlement failed, appellant was required to pay off CIT because Durham refused to make further payments on the note and sales contract. Then CIT assigned its rights and interest to appellant. In the meantime, the damaged log skidder was towed out of the woods to the edge of a road where it was left until it was towed away by appellant more than a year later.

Appellant contends the trial court erred in awarding it the sum of $5,350 instead of total-loss value of $20,500 (fair-market value less salvage value). Appellant also contends the insurer should be assessed with penalties and attorney’s fees. On the other hand, appellee contends there was no coverage because the insured abandoned the equipment following the fire. Appellee also contends that appellant failed to prove damages.

First, appellant argues that since the evidence establishes that the skidder was totally destroyed, the award fixed by the court should have been the fair-market value, less the salvage value and the deductible. We agree; the trial court was in error in limiting the award to “cost of repairs.” All of the credible evidence leads to the conclusion that the skidder could not be economically repaired. It must, therefore, be considered a total loss. The correct measure of the loss when the thing can not be economically repaired is the difference between its fair market value on the date of the fire and its salvage value. Cryer v. Gulf Insurance Company, 276 So.2d 889 (La. App. 1 Cir. 1973). The record establishes that the skidder was purchased new only 4-5 months prior to the fire and it was still under warranty. The purchase price was $32,434.78. The evidence shows that just prior to the fire the skidder was in good condition. Bill Buzbee, the President of Crawler Supply Company, testified that pri- or to the fire the skidder was worth between $23,000 and $28,500. We find that from the testimony of Buzbee, the purchase price of the equipment, the length of time that it had been used, its age, its insurance value, its good condition and other factors in the record, we can fix the fair market value of the skidder at $23,000 on the date of the fire. The appellant is entitled to this sum, less the salvage and the deductible. The evidence establishes the salvage value at $2,500. Plaintiff’s recovery is also reduced for the $250 deductible. We amend the judgment in this respect.

Appellant next contends that it is entitled to penalties and attorney’s fees because the insurer was arbitrary and capricious in failing to pay the claim within the contemplation of LSA-R.S. 22:658. Where there is a serious dispute as to the nature of the loss, as there was in the instant case, the insurer's refusal to pay the claim is not arbitrary, capricious, or without probable cause. Reed v. United States Fidelity and Guaranty Company, 302 So.2d 354 (La.App. 3 Cir. 1974). Thus, we agree with, and affirm, the trial court’s denial of penalties and attorney’s fees.

Turning now to a consideration of the additional issue raised by appellee in its answer to the appeal, the defense of abandonment. We have reviewed the evidence on this question, and find that the trial judge fully disposed of this issue in his written reasons. We adopt that portion of the reasons dealing with the question of abandonment as our own:

“The defendant submits that under the policy provisions Clemon Durham had the duty to do whatever was necessary to protect the unit. Under stated ‘conditions’, the policy states:
‘PROTECTION OF PROPERTY. In case of loss, it shall be lawful and necessary for the Insured, his or their factors, servants and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the property insured hereunder, or any party thereof, without prejudice to his insurance, nor shall the acts of the Insured or the Company, in recovering, saving and preserving the property insured in case of loss be considered a waiver or an acceptance of abandonment. The expenses so incurred shall be borne by the Insured and the Company proportionately to the extent of. their respective interest.’ (Emphasis supplied)
“The evidence reflects that several days following the fire, Robert Regan, who was an adjuster for an independent firm retained by Bituminous, went to inspect the skidder. The skidder was towed out to the edge of the road at his request. It was the opinion of Regan that the skidder could be repaired and was not a total loss. However, according to Regan, Durham was of a contrary opinion and said that the insurer should pay for it as it was a total loss and could do what it wished with the unit. (Exhibit P & D-3), Deposition of Robert Regan, Page 15. [It seems that Durham was somewhat supported in his opinion that the vehicle was a total loss because on a later occasion A. B. Hodges, an experienced dealer in skidders told Durham that ‘the machine was a total loss except for minor salvage value of about $2,500.’] Apparently, the unit remained alongside the road for more than a year when it was finally retrieved by Crawler Supply. Counsel for the insurer is correct when he contends that Durham thereafter made no efforts to protect the unit or preserve it in any respects. Counsel for the plaintiff, however, strenuously argues that if the insured was of the belief that the equipment was a total loss, he had no further responsibility under the policy to protect it. He further contends that the status of the unit was essentially unchanged since it usually stayed outdoors in the woods anyway.
“The court is of the opinion that the plaintiff should prevail as to this defense. The purpose of the aforementioned provision was to require insurers [insureds] to preserve insured property from theft, loss or depreciation where it was obvious that the property was not a total loss and conservative efforts by the insured would maintain its condition and value. In the present instance, the plaintiff was a knowledgeable operator of skidders and knew their value. It appears that his estimate that it was a total loss was at least supported by another experienced person in the field. The question of whether he should have taken steps to preserve the equipment in accordance with the policy requirements should be considered from his vantage point of whether the unit was a total loss or not. The court finds that on the face of it, he was reasonable in his assessment and that his abandonment of the unit should not be a valid coverage defense.”

For the foregoing assigned reasons, we amend the judgment to be in favor of Crawler Supply Company, Inc., plaintiff, and against the defendant, Bituminous Casualty Corporation, in the full sum of $20,-250, with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings. In all other respects the judgment appealed is affirmed. The appellee, Bituminous Casualty Corporation, is cast for costs of this appeal.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The Court originally awarded $6,500, but on application for new trial it amended the award “to reflect a correction of typographical error in the amount of damages allowed, and to allow for reduction of the amount of damages to reflect the deductible included in the insurance policy in question .... ”


text:
    STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (Office of Highways) v. Nolan HILLS.
    No. 13631.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Mario J. Porzio, Baton Rouge, for plaintiff, State of Louisiana, through the Dept, of Transp. & Development.
    Robert C. Funderburk, and Jerry F. Davis, Baton Rouge, for defendant, Nolan Hills.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The State of Louisiana, through the Department of Transportation and Development (State) filed a petition and obtained a rule to show cause why defendant-appellee, Nolan Hills, should not be ordered to remove a structure that allegedly encroached on the State’s right-of-way. The trial court ruled in favor of defendant Hills and the State appealed.

The State contends that defendant’s house, located at 1405 Central Road, encroaches 1.35 feet on the right-of-way of “B” Street, being a part of 1-110 of the Interstate Route in East Baton Rouge Parish.

Two tracts of land are considered in this litigation. The first is a tract acquired by the State on September 13, 1978, known as the “Hollins property”. The limits to the property is claimed by the State to have been established by its survey in 1977. The second is the property designated as the “Martin property” which now belongs to Hills. The Hollins property is contiguous to and west of the Martin property.

Mr. Hills had acquired the Martin property from his wife’s aunt, Mrs. Myrtle Martin Hickman, on December 15, 1970. Mr. Hills and his family had been living on the Martin property since 1962. Mrs. Hickman had lived on the Martin property virtually all of her life having acquired ownership of the property on the death of her father in 1940.

In 1972, the Hills built the family home that is claimed to be encroaching on the State’s right-of-way. Both Hills and Mrs. Hickman relied on a survey and Act of Exchange that were executed in 1957 as the determining factors in the location of their property line. It was common knowledge among the members of both the Martin family and the Hollins family, and was specifically depicted on the survey, that the Hollins home was encroaching on the property of the Martins. The Martins and later the Hills had farmed and worked the land that was between the two family homes.

The State brought this matter as a summary proceeding under La.R.S. 48:347, which reads as follows:

“A. The department may apply to the court for any process necessary to prevent the installation of any structure, sign, obstacle, object, deposit, or thing within the limits of a highway contrary to this Chapter or any lawful regulation issued hereunder.
“B. Whenever any advertising sign located within fifty feet of the outer edge of the right of way constitutes a dangerous hazard to the traveling public, the department may, after due notice to the owner thereof to remove it, apply to the district court of the parish in which the sign is located for the process necessary to effect the removal of the sign.
“C. Whenever any of the things described in Subsection A of this Section are found to exist within the limits of a highway, the department may summarily remove and dispose of it at the expense of the person responsible therefor. If it retains apparent value, the owner shall be notified, orally or in writing, to remove it within five days or such other period as may be agreed upon. If the owner be unknown or cannot be found, a written notice shall be affixed to the object setting forth that it must be removed within a period not less than five days from the date specified. Failure to remove within the specified period operates as a forfeiture of all rights thereto and the department may remove the object for its own use, or dispose of it at private or public sale, or destroy it, or dispose of it in any manner. The owner and any other person responsible therefor remains liable for any damage to public property or expenditure of highways funds resulting from the installation or removal of such things.” (Emphasis added).

Defendant Hills filed a dilatory exception under La.C.C.P. art. 926 of unauthorized use of summary proceeding. His contention was that this proceeding was actually a real action of ownership since both parties were claiming ownership of the disputed area.

The trial judge, before the show cause hearing, overruled the exception basing his decision on La.R.S. 13:5035, which authorizes the State to proceed in a summary manner in “suits for trespass, for damages, or for possession of real property.” Though the exception was overruled, the trial court made the determination that the State failed in its burden of proving it was the owner of the disputed area and therefore no encroachment had been shown.

A review of these statutes is appropriate for a correct analysis of when the State may bring actions thereunder.

Under Subsection A of La.R.S. 48:347, the State may only use this summary proceeding “to prevent the installation of any structure, ...” (Emphasis added). It is clear that if a structure is being installed or constructed on the property after the State acquired the right-of-way, it may use the summary proceeding under Subsection A above. On the other hand, Subsection A does not deal with a pre-existing structure — one installed before the acquisition of adjoining property by the State.

Appellant contends that this suit was brought under Subsection C of the statute which does not delineate between subsequent erection of a structure or previously erected structure. Subsection C does not require the State to use court process to remove any structure, sign, object, etc., as do Subsections A and B. The State did not in fact proceed under Subsection C of this statute but rather resorted to court action to enforce its rights.

The criteria under any of these subsections though, is that the State actually owns the real right or the land upon which the structure is located. In this case the ownership of the land is in dispute.

As under La.R.S. 48:347, the State may proceed in a summary manner under La. R.S. 13:5035 in a suit for trespass, for damages or for possession of real property only when it is the undisputed owner of the land or of the real right thereto.

In the eases cited by the parties hereto, there was no dispute as to the ownership of the property. In Department of Highways v. Trichel, 343 So.2d 410, 413 (La.App. 3rd Cir. 1977), the Court of Appeal makes the following statement:

“There is no dispute in the instant suit as to the ownership of the highway right-of-way. The Department of Highways does not seek a judgment recognizing it as owner of that servitude, and defendant does not claim the ownership of it, nor does it dispute the Department’s title to it. This is merely a summary proceeding, in the nature of an action for eviction or for trespass, instituted by the Department for Highways to compel the removal of structures or obstacles on the highway right-of-way, as specifically authorized by LSA-R.S. 48:347 and by LSA-R.S. 13:5035.”

In Giardina v. Marrero Furniture Company, Inc., 310 So.2d 607 (La.1975), it was not the State who instituted the action, but an adjoining landowner who wanted removal of a sign placed by a third party upon the State’s right-of-way. The court did make reference to La.R.S. 48:347, but the applicable subsection in that case would have been Subsection B, which allows the State to remove any sign within fifty (50) feet of the outer edges of the State’s right-of-way.

Finally, the Trichel, case, supra, cites Dept. of Highways v. Capone, 248 So.2d 62, 64 (La.App. 1st Cir. 1971) as authority for the proposition that the State may proceed summarily under La.R.S. 48:347 and 13:5035. In that case an exception of no right to proceed summarily was filed and the court stated:

“To the extent that the exception filed by defendant purports to contest the right of plaintiff to proceed summarily, it is clear that such an exception, properly denominated a dilatory exception of unauthorized use of summary procedure, is without merit on the basis of the record herein. Plaintiff has clearly alleged in the first place that defendant’s canopy and electric sign encroach upon the highway right of way, and plaintiff is, therefore, properly bringing a suit for trespass or for possession of real property, which type of action the State is specifically authorized to institute as a summary proceeding as provided in LSA-R.S. 13:5035.” (Footnote omitted).

The record before the court in the Capone case, supra, was limited because the case was before it on an exception of no cause of action. The court had to accept as true all facts pleaded in the State’s petition. In this case, the trial court heard the case on the merits and had the entire record before it, which establishes that ownership is in dispute. Because ownership is in dispute, the trial court in the present suit should have sustained the exception instead of deciding the merits of the case on the basis of ownership in favor of the defendant.

The right to use summary proceeding granted to the State by the statutes can only be used when there is no dispute as to ownership. In this case there is a dispute as to ownership, with the State claiming title under the sale from the Hollins, while the defendant claims ownership through title and possession.

Under these circumstances, the State should bring a real action under the appropriate articles of the Code of Civil Procedure. Nothing in La.R.S. 48:347 or La.R.S. 13:5035 grants to the State the right to determine a real action in a summary proceeding.

For these reasons, the decision of the trial court in recalling, vacating and setting aside the rule is affirmed. Costs of this suit are cast against the State in the amount of One Hundred Sixty-Six and 81/100 ($166.81) Dollars.

AFFIRMED.


text:
    Sandra Duren Maxwell, wife of/and James F. MAXWELL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13635.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Refused Nov. 26, 1980.

      Paul H. Due, Baton Rouge, for plaintiff.
    David K. Balfour, Woodrow W. Wyatt, Baton Rouge, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

Plaintiffs-appellees, Sandra Duren Maxwell, wife of/and James F. Maxwell, filed suit against the defendant-appellant, State of Louisiana, through the Department of Transportation and Development (Department of Highways) for damages and for injuries the wife sustained as a result of a one-car accident.

The case was tried in the Twenty-first Judicial District Court for the Parish of Livingston before Leon Ford, III, Judge, who rendered judgment in favor of the plaintiffs. The Department suspensively appealed the judgment. We affirm.

The accident occurred on the night of July 26,1976, on Louisiana Highway 16 (La. 16) in the Parish of Livingston, Louisiana. Plaintiff, Sandra Maxwell, was driving her new Cadillac automobile in a northerly direction at about 50 miles per hour, although the speed of the vehicle could not be definitely determined. As she entered a sharp curve just south of the intersection with Arnold Road, Louisiana Highway 1025 (La. 1025), one wheel of her automobile slipped off the paved portion, of the roadway onto the shoulder, causing her to lose control of her car and to crash into the adjacent ditch, which resulted in the damages and injuries of which the plaintiffs complain.

The evidence in the record establishes that the curve on La. 16 where the accident occurred, although designated as safely negotiable at 50 m. p. h., could not be safely negotiated at a speed in excess of 40 m. p. h. At this point the shoulder was significantly lower than the roadway and was very narrow. In discussing the conditions at the point of the accident, the trial judge noted:

“The shoulder to Highway 16 was dangerous and defective at the point of the accident because of its drop off from the edge of the highway at its critical location in the sharp curve. It was of insufficient width to allow a driver who dropped off of the highway on to the shoulder at any reasonable speed to regain control of their (his) vehicle and avoid running into the adjacent ditch.”

This case, like Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), presents primarily the issue of whether a motorist who inadvertently drives off the paved portion of a state highway onto the shoulder, and who thereby loses control of her vehicle due to the condition of the roadway and shoulder, is barred from recovery for her injuries. The question of the liability of the State resulting from the condition of the roadway and shoulder is necessarily an issue. The appellant has also raised the incidental question of the trial judge’s acceptance of the plaintiffs’ expert witness, Duaine T. Evans, as an expert in traffic engineering and accident reconstruction.

The Highway Department has the basic responsibility for the maintenance of State Highways. LSA-R.S. 48:21, 191. The Department is required to maintain its highways in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence. Although it is not an insurer of the safety of motorists using its highways, it can not knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Sinitiere v. Lavergne, 381 So.2d 522 (La.App. 3 Cir. 1980); Brown v. Louisiana Department of Highways, 373 So.2d 605 (La.App. 3 Cir. 1979); Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978); Breaux v. Louisiana Department of Highways, 347 So.2d 1290 (La.App. 1 Cir. 1977), writ denied, 350 So.2d 1226 (La.1977).

In Watson v. Morrison, 340 So.2d 588 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 1134 (La.1977), and Willis v. State ex rel. Louisiana Department of Highways, 321 So.2d 819 (La.App. 1 Cir. 1975), writ denied, 325 So.2d 280 (La.1976), the courts established that shoulders are included in the duty of maintenance of the highway department. See also Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4 Cir. 1980).

The evidence reveals that the dangerous condition of this particular curve (with the inadequate shoulder) was known to the Department. Local residents had made numerous complaints to the Department about the condition and many vehicular accidents had occurred at this particular location over an extended period of time. See Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1 Cir. 1967), writ refused, 251 La. 932, 933, 207 So.2d 538, 539 (1968). We thus determine that the Department was negligent in allowing such a known dangerous condition to exist, which caused the accident in question.

The defendant contends that Sandra Maxwell was negligent in driving at an excessive rate of speed under the circumstances. The Department sums up its argument: “Clearly, some negligence on the part of Mrs. Maxwell caused this accident. Any other conclusion is pure guess work and plaintiff should not be allowed to recover on that foundation.”

The evidence does not support the defendant’s allegation of excessive speed on the part of Mrs. Maxwell, or any other “negligence” on her part. The evidence shows that as she attempted to negotiate the curve at a reasonable rate of speed, one of the front wheels inadvertently left the paved surface of the highway, onto a severe dropoff on the narrow shoulder, causing her to lose control of the automobile and to crash into the adjacent ditch. We find that the contention of the Department that Mrs. Maxwell was contributorily negligent under such circumstances is fully answered by the Louisiana Supreme Court in Rue v. State, Department of Highways, 372 So.2d 1197, 1199 (La.1979). In the Rue case, the motorist had inadvertently driven off the highway onto its shoulder and lost control of her vehicle upon striking a dangerous rut in the shoulder, causing the accident and injuries. The Rue Court held as follows:

“Under a simple ‘but-for’ analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s ‘substandard’ conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related fo plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
“We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder.”

Thus, we determine that Mrs. Maxwell’s conduct does not bar her from recovery of damages which were occasioned chiefly because the Highway Department negligently failed to maintain a safe highway and shoulder.

There is no merit in the appellant’s contention that the trial court erred in accepting plaintiff’s expert witness, Duaine Evans, as an expert in accident reconstruction. In the absence of clear abuse of the trial court’s discretion in accepting an expert witness, the appellate courts do not reject the testimony of the expert or find reversible error. Sledge v. Aluminum Specialties Mftg., Inc., 351 So.2d 835 (La.App. 1 Cir. 1977); Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1 Cir. 1975), writ denied, 323 So.2d 478 (La.1975).

The thrust of the Department’s objection was that Mr. Evans had taken “no special formalized training, either graduate or undergraduate dealing with dynamics in physics of moving vehicles that become involved in vehicular collisions.” Such an argument is so untenable as to border dangerously close to facetiousness. Structured-learning in a school-setting has never been the sole manner in this country for the acquisition of expertise in a specific field. Experience alone is enough to qualify a witness as an expert. Shaw v. New Orleans Public Service, 188 So. 187 (La.App.Orl.1939). Be that as it may, the record shows beyond question that Mr. Evans was qualified to testify as an accident reconstruction expert. The trial judge committed no error in allowing his testimony. The record reflects that Judge Ford gave no undue or improper weight to the testimony of the expert witness. In any event, this was a one-car accident where the motorist inadvertently allowed one wheel of her automobile to run off the paved roadway onto a “dangerous” shoulder, which caused her to lose control of,her vehicle. No major “reconstruction of the accident” was required to establish the facts of the case. All of the evidence points to what happened. In this situation, Rue v. State, Department of Highways, supra, is controlling. The appellant’s attempt to restrict the Rue case to motorists striking a “dangerous rut” in the shoulder of the highway must fail. Our Supreme Court had little difficulty in finding the Highway Department “negligent in failing to maintain the shoulder of the highway in a safe condition.” We point out that significant variation in the levels of the paved-portion and the shoulder-portion, combined with a narrow shoulder, as in the instant case, constitutes a situation equally as hazardous as a “dangerous rut in the shoulder” of the Rue case. We have no difficulty in determining that the Department was negligent in failing to maintain the shoulder at this improperly-marked curve in a reasonably safe condition. We conclude, as the Rue Court concluded, “plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder.”

The appellees ask in their brief that the defendant-appellant be condemned to pay damages for maintaining a frivolous appeal. Under LSA-C.C.P. art. 2164, appellate courts do have the authority to award such damages; however, appeals being favored, the imposition of damages will not be granted unless clearly due. Hebert v. Knoll, 370 So.2d 151 (La.App. 3 Cir. 1979); Guidry v. Carmouche, 320 So.2d 267 (La.App. 3 Cir. 1975); Motion Picture Advertising Corporation v. Smith, 207 So.2d 847 (La.App. 1 Cir. 1968). There were serious legal questions presented. It is certainly not apparent that the counsel for appellant did not believe in the merits of this appeal. For these reasons, we reject the appellee’s demand for damages for a frivolous appeal.

For the reasons herein set out, the judgment appealed is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Wallace R. ELLENDER, Jr. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Vivian E. CHAMPAGNE et al.
    Nos. 12357, 12358.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    See also, La.App., 371 So.2d 638.
    Bryan Miller and Johnie E. Branch, Jr., Baton Rouge, for plaintiff and appellant.
    El ward Wright, Houma, for defendants and appellants.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The only issue to be decided in this remand is whether or not the trial court erred in holding that crops on the Champagne property were damaged as a result of nearby construction of a highway.

These complex consolidated suits concern contiguous lands on State Route La. 24 in Terrebonne Parish. One tract is owned by Wallace R. Ellender and the other tract is owned by Vivian E. Champagne and Loura Champagne McComiskey (herein the Champagne tract). Ellender is also the lessee of the Champagne tract and was named as a defendant in the suit against the Champagnes. Certain portions of both tracts were expropriated in February 1974 in order to widen and improve the highway. Although the trial court dealt with many issues, we are concerned here with only one issue and need not discuss various findings as to the other matters. For complete discussion of the case concerning other issues see State Through Department of Highways v. Champagne, 371 So.2d 626 (La.App. 1st Cir. 1979) and State Through Department of Highways v. Ellender, 371 So.2d 638 (La.App. 1st Cir. 1979).

At trial the judge initially refused to allow introduction of any evidence as to damage done to crops on land not taken by the state. Lessee Ellender alleged he had suffered serious crop damage on the Champagne tract caused by the state placing a culvert underneath the highway. He alleged this culvert allowed thousands of acres of woodlands to drain onto the Champagne property, causing damage to Ellen-der’s sugar cane. The judge allowed the evidence to be introduced by proffer only, but later reversed himself and granted an award for damaged crops of $15,749.31 to be paid by lessor Champagne to lessee El-lender, and $3,149.86 to be paid to Champagne. (The lease provided that Ellender was to pay to Champagne V6th of the profits earned from the sugar cane harvest as rent.) The State appealed. This court reversed the portion of the trial court’s judgment that granted the award for crops damaged on land not taken, believing the jurisprudence did not allow a party to assert a tort claim as a reconventional demand in an expropriation proceeding.

The Supreme Court granted appellees’ writ as to the issue of damages for crops on land not taken and in its opinion specifically overruled eases which had prohibited the court from considering all types of recon-ventional demands in an expropriation suit. State Through the Department of Highways v. Ellender and State Through the Department of Highways v. Champagne, 379 So.2d 1069 (La.1980), overruling Louisiana Highway Commission v. Dunn, 173 La. 998, 139 So. 324 (1932) and Louisiana Highway Commission v. DeBouchel, 174 La. 968, 142 So. 142 (1932). The Supreme Court found there was no sound basis in our law for denying a defendant his procedural right to assert a reconventional demand in a suit brought against him merely because the principal action involves expropriation and the reconventional demand is in tort. The court relied on La.R.S. 48:454 which provides:

“Except as provided in this Part, these suits are tried in accordance with the provisions of the Code of Civil Procedure and general expropriation laws.”

The court reasoned a defendant in an expropriation suit can rely on the general rules of the Louisiana Code of Civil Procedure governing incidental demands. Article 1061 allows the defendant in the principal action to assert in a reconventional demand any action which he may have against the plaintiff in the principal action. Article 1032 allows a defendant in the principal action to incorporate his incidental demand into his answer. The Supreme Court remanded the matter to this court for review of the record to determine whether or not the trial court erred in finding that the crops had been damaged because of the construction of the highway.

Because we find defendants-appellees have proven by a preponderance of the evidence that the constructions made by the State in connection with the improvement of Highway 24 caused the drainage of the Champagne property to be impaired, we affirm the trial court’s findings. Proof by a preponderance of the evidence means that taking the evidence as a whole, such proof shows the fact or cause sought to be proved is more probable than not. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976).

An examination of the record shows that testimony by various witnesses established it is more probable than not that the large culverts placed by the state caused the excessive flooding on the Champagne property.

Wallace Ellender testified the Soil Conservation District had designed a drainage system consisting of a ditch designed to drain water from the Champagne land only. When the State improved the highway it installed large culverts underneath the road. These culverts caused water from thousands of acres of woodland to be drained underneath the roadway into the Champagne ditch. The ditch was not capable of handling the increased amount of water so the Champagne land became flooded for two or three days following each rainfall.

Russell Brien, a local sugar cane farmer, testified he had helped Mrs. Champagne with the drainage of her land in 1966. He stated he had observed that the field was standing in water at one time during 1974. Alfred Cooley, the County Agent for Terre-bonne Parish, testified that in 1974 he had noticed the tract in question was covered with water. When asked his opinion as to the cause of the problem he answered that he believed the ditch built by the Soil Conservation Service was inadequate to handle the flow of water, although it had previously been able to do so. He testified he had visited the area many times prior to the construction of the highway and had never noticed any flooding at that time. He first noticed standing water in the Champagne tract after the highway was constructed.

Eugene Luke, District Conservationist for the Soil Conservation Service testified he had helped design the drainage system for Mr. Ellender. He stated he had observed the drainage problems that Mr. Ellender is currently having and attributes the problem to the ditch not being able to handle the flow of water. Prior to the installation of the culverts the highway acted as a natural levee. But once the culvert was installed water from the other side of the highway was able to reach the Champagne property. He stated that the ditch was designed to handle the water on the Champagne tract alone, and that it would be inadequate to carry any extra water.

Merlin Básele, County Executive Director for the Agriculation Stabilization and Conservation Service for Terrebonne Parish, testified that prior to the highway construction Mr. Ellender had adequate drainage on the Champagne property. He stated that there was a definite drainage problem at the time of the trial which occurs any time there is any degree of rain.

There was no evidence offered by the State to refute the allegations that the drainage problem was caused by the construction of the highway.

As to the extent and amount of crop damage done by the impaired drainage Alfred Cooley testified that when the cane is covered with water oxygen can not get to the roots. This causes a marked reduction in the yield. Mr. Ellender testified he had 83.5 acres of sugar cane along the section affected. He estimated a 5 ton per acre loss in production because of the water, which equals a total loss of 417.50 tons. The trial judge accepted testimony that the average price of cane during 1974 was $45.2675 per ton.

Although the Supreme Court has made it clear there is no procedural bar to appellees asserting their claim for tort damages in an expropriation proceeding, appellant argues there should be no recovery because there has been no proof of negligence. The holding of Reymond v. State of Louisiana, Through the Department of Highways, 231 So.2d 375 (La.1970) is applicable to the present case. Although the property owner in Reymond was not involved in an expropriation suit she asserted a claim for damage to her property caused by the expropriation of nearby property.

“The liability of a public body for property taken or damaged but not included within its actual expropriation activity must be limited to those instances where there is a physical taking or damage to that property or a special damage peculiar to the particular property and not general damage sustained by other property similarly located.” Reymond, supra at 383.

Mrs. Reymond’s house had been structurally damaged by the State’s construction of a nearby Interstate Highway just as Mr. Ellender’s cane has been damaged by the construction of La. Route 24. Negligence of the State was not an issue in the Rey-mond case, and it is not an issue in the present case. The recovery in Reymond was not based on La. Civil Code Article 2315 but was based upon Article I, Section 2 of the Louisiana Constitution of 1921 which reads in part:

“Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

Without discussing negligence at all, the Reymond court reasoned that since a damaging of property may occur without expropriation of that particular property, there must be some redress for the property owner. Such an action is referred to as an “inverse condemnation” and is supported by Article 1, Section 2 and Article 4 of the 1921 Constitution.

Because the record reveals the trial judge was not clearly wrong in holding that the construction of the highway was the direct cause of the impaired drainage, we affirm the total award of $18,899.17 for crop damage. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) rehearing denied 1979. Appellant is to pay all costs.

AFFIRMED.

      . The Ellender/Champagne expropriation took place prior to the effective date of 1974 Constitution so is governed by the provisions of the 1921 Constitution.


author: WATKINS, Judge.

text:
    Curtis J. PAISANT v. UNIVERSITY OF NEW ORLEANS.
    No. 12948.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Mary E. Howell, New Orleans, for plaintiff-appellant.
    Rutledge C. Clement, Jr., New Orleans, for defendant-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

WATKINS, Judge.

This is an appeal brought by Curtis J. Paisant from a ruling of the State Civil Service Commission. The University of New Orleans, appellee, filed a motion to dismiss the appeal on the ground that the appellant had failed to join an indispensable party, namely, the Director of Personnel of the State Civil Service Commission, or, in the alternative, sought that the Director of Personnel be joined as an appellee. Appellant asked that the motion to dismiss be denied, or, in the alternative, that the Director of Personnel of the State Civil Service Commission be made a party to this proceeding. The contention that the Director of Personnel of the State Civil Service Commission is an indispensable party to this proceeding is founded upon LSA-R.S. 13:3416:

“The director of personnel of any department of state or city civil service existing under the provisions of Article XIV, Section 15 of the Constitution of Louisiana shall be an indispensable party in any judicial proceeding wherein relief is sought against any rule, decision, action or failure to act of the civil service commission under which the director functions, with all of the rights and remedies afforded to parties in litigation by the laws of this state.”

The identical issue to the one faced in the present case was presented to this Court in Meaux v. State Dept. of Highways, 223 So.2d 186 (La.App. 1st Cir. 1969). In that case although the Director of Personnel had prepared the transcript to be submitted to the Court of Appeal, he was not made a party to the proceeding. The Court specifically ruled that the remedy was to make the Director of Personnel of the Department of State Civil Service a party, and it was so ordered. In the present case, as the Director of Personnel prepared the transcript, and is thus aware of the proceedings, the proper relief is not to dismiss the appeal but to make the Director of Personnel of the Department of State Civil Service a party to the proceedings, as was done in Meaux.

IT IS, THEREFORE, ORDERED that the Director of Personnel of the Department of State Civil Service Commission be made a party hereto, and that appellants and appellee herein furnish the said Director all copies of all pleadings and briefs filed herein in accordance with LSA-R.S. 13:3418.

All costs in connection with this proceeding to be paid by Appellee.

ALTERNATIVE MOTION GRANTED.