author: CHIASSON, Judge. ELLIS, Judge, PONDER, Judge

text:
    Emile R. POISSENOT v. GUILDCRAFT HOMES, INC. and C. Derbes Smith, Inc.
    No. 13462.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Feb. 11, 1981.
    Dan A. Smetherman, New Orleans, for plaintiff-appellant.
    Howard R. Fussell, Covington, for C. Derbes Smith, Inc., defendant-appellee.
    Elaine W. Guillot, Slidell, for Guildcraft Homes, Inc., defendant-appellee.
    Before ELLIS, CHIASSON, PONDER, COLE and WATKINS, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Emile R. Poissenot, appeals the decision of the trial court dismissing his suit for the return of a $2,000.00 deposit made by him in accordance with a purchase agreement and granting judgment in favor of the defendants-appellees, Guild-craft Homes, Inc. and C. Derbes Smith, Inc., on their respective reconventional demands.

The plaintiff entered into a written contract on June 30,1977, to purchase a lot and home which was to be constructed by Guild-craft Homes, Inc. in Yester Oaks Subdivision located in Slidell, Louisiana. The agreement is evidenced by a standard real estate contract furnished by Ms. Smith, a realtor with C. Derbes Smith, Inc., and by a supplement to the contract executed on July 2,1977. The contract provided that an act of sale would be passed before the lender’s notary between September 15,1977 and October 1, 1977.

The agreement for the sale of the lot and house was conditioned on the ability of Mr. Poissenot to secure a loan in the amount of $27,000.00 at a rate of interest not to exceed nine percent (9%). The suspensive condition was met by the receipt of a loan commitment from the First Homestead and Savings Association of New Orleans on July 5, 1977.

In addition, the agreement required that Guildcraft be furnished a certificate of reasonable value (CRV) from the Veterans Administration. This was accomplished by a CRV dated August 5, 1977 from the Veterans Administration. With all of plaintiff’s obligations met, construction on the house began.

October 1,1977 passed without any action being taken by either party. On November 2, 1977, Cynthia D. Smith, president of C. Derbes Smith, Inc., the realtor handling the sale, wrote a note to Guildcraft pointing out some irregularities in the still unfinished house. These had been brought to her attention by the plaintiff.

A similar note was sent on November 25, 1977. On November 11,1977, Mr. Poissenot had signed a request sheet giving specifications for the color and decoration scheme of the house. He stated that this was necessary due to the fact that the original had been lost.

On or about December 1,1977, Ms. Smith advised plaintiff that the house would probably not be ready until after Christmas. Plaintiff then consulted counsel, who directed the following letter to C. Derbes Smith, Inc. on December 7, 1977:

“Mr. Emile Poissenot has requested my assistance in securing the return of his deposit in the sum of $2,000 for the purchase of the subject realty. The Act of Sale for this property was to be passed under the terms of the contract not later than October 1, 1977. Mr. Poissenot had performed his part under the Agreement to secure financing and stood ready to purchase this property as of such date. “As the time for completion of construction has long since passed, it is our position the Seller has breached the bargain. If payment of the $2,000 is not received within 15 days, we intend to file suit in St. Tammany Parish for the return of the deposit plus an equal amount to be paid as penalty by the Seller and all reasonable attorney’s fees and costs which we incur.”

The purchaser in this agreement, the plaintiff in this action, now seeks the return of the $2,000.00 deposit and in addition an equal amount as penalty, plus reasonable attorney’s fees and costs of this action according to the terms of the contract. The defendant, C. Derbes Smith, denied the allegations of the plaintiff and reconvened for $2,345.00, representing the agent’s commission. The defendant, Guildcraft Homes, denied the plaintiff’s allegations and reconvened for $6,345.00, the amount of the deposit, penalties, attorney’s fees, costs and the agent’s commission.

The trial court found that the supplement to the contract had modified the initial contract since it was typewritten in regards to when the contract was to be carried out. In addition, the court found that the purchaser, plaintiff, could not cancel the agreement unless he could not secure the specified loan. Having secured the loan, he was unable to cancel the agreement without facing the consequences of a breached contract. Finding further that the plaintiff breached the contract by the December 7, 1977 letter, the trial court held the plaintiff to be indebted to Guildcraft in the amount of $2,000.00, plus $250.00 attorney’s fees and for all costs of the proceedings. In addition, plaintiff was indebted to C. Derbes Smith in the amount of $2,345.00, plus $250.00 in attorney’s fees.

The trial court found that the contract entered into was a printed form contract and the supplement was a typewritten agreement. The significance of this distinction is that the Louisiana jurisprudence has favored the typewritten provisions of a contract over a printed provision of a contract when there is a conflict between the two. Executive House Bldg., Inc. v. Optimum Systems Inc., 311 So.2d 604 (La.App. 4th Cir. 1975) cert. denied 313 So.2d 847 (La.1975).

Notwithstanding this rule, we find that the two provisions which are alleged to be in conflict, lines 26 through 28 of the contract and paragraph 1 of the supplement, are both typewritten. The reason that this is so is that the date the act of sale was to be passed is typed in the blanks provided in the form contract. We deem this to be a typewritten provision of the contract and of equal importance with paragraph 1 of the supplement since the parties are the ones that provided the substance of what is typed therein.

The following excerpts of these provisions from the agreement are as follows:

“26. Act of sale at expense of purchaser to be passed before lenders. Notary, at any time after
“27. Sept. 15 19 77, and not later than Oct. 1. 19 77. In the event bona-fide curative work in connection with title
“28. is required, the parties herewith agree to and do extend the time for passing of act of sale by forty-five days.”
“1) If the house is not substantially complete within 130 days from date of Seller’s receipt of a V.A. copy of an approved C.R.V. and firm written commitment for a permanent loan to purchaser from a mortgage lender in conformity to lines 13 and 14 of contract, then damages at the rate of $5.00 per day will be assessed against the seller and deducted from the sale price of the property until substantial completion.”

In addition to that fact, we do not find the two provisions of the contract to be in conflict. Lines 26 through 28 establish a time frame, mutually agreed to by both parties, in which an act of sale was to be passed before the lender’s notary. Paragraph 1 of the supplement refers to a penalty clause imposed on the seller if he fails to complete the house within 130 days of receipt of a CRV from the Veterans Administration. This paragraph is in no manner a substitute time frame for the passing of an act of sale.

Counsel for appellee, in oral argument, has asked us to assume that the date for passing an act of sale would be 130 days after seller’s receipt of a CRV. We do not need to assume a date for passing an act of sale if there is one already provided for in the contract. The construction of the contract in this manner will give meaning to all the provisions of the contract. La.C.C. art. 1955 and Farrell v. Hodges Stock Yards, Inc., 343 So.2d 1364 (La.1977).

The next contention is that appellant could not sue for return of his deposit since there was no putting in default of the defendant on the part of the plaintiff-purchaser. A thorough review of the circumstances of this case reveals that a putting in default was practically impossible on the part of Mr. Poissenot.

In this commutative contract, plaintiff must have been willing and able to perform his part of the contract. Louisiana Civil Code Article 1913 states:

“In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.”

Since the contract did not state that the nonexecution of the sale at that time would automatically place the other party in default under La.C.C. art. 1911(1), the only other method left was under article 1911(2), which requires a demand by one of the parties. But between September 15, 1977 and October 1, 1977, the house was in no condition to be sold by the seller to the purchaser. Therefore, the seller could not deliver the house to Mr. Poissenot. In turn, Mr. Poissenot, who had obtained the loan commitment and CRV, was not able to fully perform since no lending institution would have lent him money for an uncompleted house.

As time progressed, the putting in default was still unavailable to the purchaser either to sue for damages or to sue for rescission, if there is such a requirement, because of the seller’s failure to finish the house. Neither party contemplated that this contract would be for an indefinite period of time without some way of being exculpated from it.

A similar situation was presented in the case of Kennedy v. Pope Park, Inc., 109 So.2d 514 (La.App.Orl.1959) in which the court stated:

“We think that it would be absurd to hold that Kennedy, on April 1st should have demanded title when, as a matter of fact, not only had the building which he was to buy not been completed, but he could not have paid for it because Pope had not obtained for him the necessary loan.
“We agree with the following statement which the District Judge made to counsel for defendants:
‘ * * * This contract was conditioned on a loan being secured and until the loan was secured in the usual way so you could pass the act of sale he couldn’t take title. If it wasn’t completed until after April 1st and there was no written contract, then the contract falls as a matter of law.’
“We feel certain that when the District Judge stated that if there was no written contract, the contract falls, he meant that if there was no ‘extension’ of the written contract.”

The same rationale is expressed in Jaffe v. Wood, 247 So.2d 229 (La.App. 4th Cir. 1971). There the court held:

“... Since neither party placed the other in default as provided for in the agreement, the agreement lapsed by its own terms and purchaser is not entitled to attorney’s fees as provided for in the contract. Purchaser had only a right to demand the return of his deposit of ten percent or $5,800.00.
“A demand was made by suit being filed and seller did not tender the amount of the deposit. Purchaser was required to litigate for the return of his own money. Therefore purchaser is entitled to all costs in this suit.”

Following the guidance of these two cases, we deem that the terms of this contract before us have lapsed on its own, since neither party was able to or did place the other party in default and no written extension of time was granted. The purchaser is entitled to the return of his deposit in the amount of $2,000.00 with legal interest from date of judicial demand.

Judgment is rendered herein in favor of Emile R. Poissenot and against Guildcraft Homes, Inc. in the sum of $2,000.00, together with legal interest thereon from date of judicial demand and all costs. The recon-ventional demands of Guildcraft Homes, Inc. and C. Derbes Smith, Inc. are dismissed at their costs.

REVERSED AND RENDERED.

ELLIS, Judge,

dissenting.

On June 30,1977, plaintiff Emile R. Pois-senot entered into a contract with Guild-, craft Homes, Inc., to purchase Lot 63 of Yester Oaks Subdivision near Slidell, Louisiana. The contract provided for a purchase price of $46,900.00 and was conditioned on plaintiff obtaining a loan for $27,-000.00 on specified terms. The contract contained the following provisions pertinent to this lawsuit:

“Possession and occupancy by purchaser at passing of act of sale or on see supplementary condition item one (1).
“Act of sale at expense of purchaser to be passed before lender’s Notary, at any time after Sept. 15, 1977, and not later than Oct. 1, 1977 ....'”

The supplement to the contract contained these provisions:

“1) If the house is not substantially complete within 130 days from date of Seller’s receipt of a V.A. copy of an approved C.R.V. and firm written commitment for a permanent loan to purchaser from a mortgage lender in conformity to lines 13 and 14 of contract, then damages at the rate of $5.00 per day will be assessed against the seller and deducted from the sale price of the property until substantial completion.
“2) Purchaser agrees that should this contract be cancelled by the purchaser, his assigns or heirs, for any reason whatsoever irrespective of any other conditions herein except those on lines 13 and 14, then seller shall receive as liquidated damages the amount of $2,000.00. This amount will be paid by the Broker directly to the seller from the buyer’s deposit as shown on line 30 of this contract.”

Mr. Poissenot made a $2,000.00 deposit and obtained the required loan commitment, and construction of the house was begun. The certificate of reasonable value (CRV) was issued on August 5, 1977.

October 1, 1977, passed without any action being taken by either party. On November 2,1977, Cynthia D. Smith, president of C. Derbes Smith, Inc., the realtor handling the sale, wrote a note to Guildcraft pointing out some irregularities in the still unfinished house. These had been brought to her attention by plaintiff.

A similar note was sent on November 25, 1977. On November 11,1977, Mr. Poissenot signed a sheet giving specifications for the color and decoration scheme of the house. He stated that this was necessary because the original had been lost.

On about December 1, 1977, Ms. Smith advised plaintiff that the house would probably not be ready until after Christmas. The 130 day time limit for completion of the house would have expired on December 13, 1977. Plaintiff then consulted counsel, who on December 7, 1977, directed the following letter to C. Derbes Smith, Inc.:

“Mr. Emile Poissenot has requested my assistance in securing the return of his deposit in the sum of $2,000 for the purchase of the subject realty. The Act of Sale for this property was to be passed under the terms of the contract not later than October 1, 1977. Mr. Poissenot had performed his part under the Agreement to secure financing and stood ready to purchase this property as of such date. “As the time for completion of construction has long since passed, it is our position the Seller has breached the bargain. If payment of the $2,000.00 is not received within 15 days, we intend to file suit in St. Tammany Parish for the return of the deposit plus an equal amount to be paid as penalty by the Seller and all reasonable attorney’s fees and costs which we incur.”

Thereafter, efforts to adjust the difference amicably were unsuccessful, and this suit was filed against Guildcraft and C. Derbes Smith, Inc., seeking the return of the $2,000.00 deposit from both parties and a $2,000.00 penalty from Guildcraft, and attorney’s fees. Smith answered and reconvened for a commission allegedly due on the sale and attorney’s fees. Guildcraft answered and reconvened for $2,000.00 allegedly due it under the supplement to the contract and attorney’s fees.

This is clearly not a contract in which time is of the essence and neither party was in default under its terms when October 1, 1977, came and went. See Article 1911, Civil Code; Fortenberry v. Decay, 279 So.2d 725 (La.App. 1st Cir. 1973). It was, therefore, necessary for either party formally to put the other in default. The rules applicable are as follows:

“Art. 1911. The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
“1, By the terms of the contract, when it especially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure.
“2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.”
* * * * * *
“Art. 1913. In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.”
“Art. 1914. Although the contract be either not commutative, or, if commutative, the reciprocal obligations are not to be performed at the same time, yet the party wishing to put the other in default, must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract or implied from the nature of the act to be done, and he can not avail himself of any demand at any other time or place; but if the obligation be to do or give any thing that may as well be given, or done at one time and place as at another, then the party failing may be put in default as well after as at the time the obligation becomes due. Promissory notes and bills of exchange are not governed by this rule, but by those of commercial law.”

Plaintiff’s effort to put the defendant in default did not comply with the requirements of the foregoing articles in two respects. First, the letter was written prior to the time fixed for the completion of the house by the supplement to the contract. Second, plaintiff did not offer to perform or to receive performance of the contract. In effect, the demand letter was an effort to withdraw from the contract without having first placed the defendants in default. This act, and the filing of this suit for the return of the deposit, amount to a breach of the contract by plaintiff, and defendants are therefore entitled to recovery on their re-conventional demand. It is clear that the only reason plaintiff wished to withdraw from the contract was that he had been told by Mrs. Smith that the house was not going to be completed until after Christmas, 1977. He attempted to withdraw from the contract before the date on which the house was to be completed under its terms. At trial, no showing was made that plaintiff was, in fact, ready, willing and able to receive title prior to the completion of the house. Since financing was involved, it would appear doubtful that the mortgage money would have been available prior to completion of the house, in any event.

The majority is ignoring the settled law relative to default in reaching its result. I believe that this law is dispositive of the case, and, therefore dissent.

PONDER, Judge

specially concurring.

Even assuming that a putting in default is necessary, that can be done by the commencement of the suit. C.C. Art. 1911. Because of the apparent inconsistency between Arts. 1911 and 1912 the jurisprudence is quite confused. It has been argued that the putting in default by the filing of suit should apply only to demands for specific performance but I find no such limitation in the Code. The filing apprises the debtor that further delay is prejudicial to the creditor, the primary purpose of the default requirement. See Comment, A Theoretical Evaluation in Conventional Obligations, 46 Tulane L.R. 948; Smith, The Cloudy Concept of Default, 12 Inst.Min.L. 3, 8. Under C.C. Arts. 2046 and 2047, the court, considering the circumstances, could dissolve the contract or could give further time for performance.

However, I do not believe that a putting in default should be required at all.

C.C. Art. 1912 says that a putting in default is a prerequisite to the recovery of damages and of profits and fruits or to the rescission of the contract in the eases hereinafter provided. Even if it be said that the words refer to the remainder of the Civil Code, we find no articles that unquestionably require the putting in default a prerequisite to a demand for resolution. Instead the articles seem to be directed toward monetary damages only. See Smith, supra, and Comment 46 Tul.L.R. 948.

The illogic of the requirement of an offer of perform before being entitled to dissolution has been pointed out in some of the cases. See Jennings-Heywood Oil Synd. v. Houssiere Latreille Oil Co., 119 La. 793, 44 So.2d 481 (1907).

I am mindful that some jurisprudence would lead to a contrary result. See Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (1st Cir. 1976). However, I am also mindful of the Supreme Court’s statement that, Louisiana being a Code State, we are required to consult the code for guidance in our work. See Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978). After a study of the above codal articles, of some of the cases (see the Jennings-Heywood case cited above) and some of the commentaries (see Smith, cited above Comment 46 Tul.L.R. 949, cited above and Monroe, The Implied Resolutory Condition for Non-Performance of a Contract, 12 Tul.L.R. 376, and 12 Tul.L.R. 509 (1938), I conclude a putting into default in a case asking for resolution such as this, leading to such an inequitable result, is not required by the code and that the error of so doing should not be continued.

      .The question of whether a putting in default is a prerequisite for suit for dissolution or rescission of a contract is a hotly contested subject. See La.C.C. arts. 1912, 2046, 2047, 2485, 2516 & 2561. Murray v. Barnhart, 117 La. 1023, 42 So. 489 (1906); Jennings-Heywood Oil Synd. v. Houssiere-Latreille Oil Co., 119 La. 793, 44 So. 481 (1907); Hibbert v. Mudd, 294 So.2d 518 (La.1974) (Justice Barham’s dissenting opinion); J. Denson Smith, The Cloudy Concept of Default, Twelfth Annual Institute on Mineral, La. (1965). Compare Watson v. Feibel, 139 La. 375, 71 So. 585 (1916); A Theoretical Evaluation of Louisiana Default Law in Conventional Obligations, 46 Tul.L.Rev. 948 (1972).

      . It is the jurisprudential rule that any modification or extension of time to a written purchase agreement or contract to sell immovable property must be in writing. La.C.C. arts. 2275 and 2440; Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868 (1949); Hoth v. Schmidt, 220 La. 249, 56 So.2d 412 (1951); Parker Mead, Inc. v. Cutrer, 239 So.2d 729 (La.App. 1st Cir. 1970). Distinguish Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1st Cir. 1976).

      . See also Fox v. Doll, 221 La. 427, 59 So.2d 443 (1952).


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Robert L. LENNON v. Anthony L. BURDON.
    No. 11402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.

      Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for plaintiff-appellant.
    Ogden & Ogden, New Orleans, Timothy L. McCune, New Orleans, for defendant-ap-pellee.
    Before SAMUEL, BARRY and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiff, a Mississippi lawyer, appeals from a judgment dismissing his suit for an attorney’s fee under a contingency contract with the defendant.

The notarial contract in suit was entered into in Mississippi. It calls for appellant to receive a one-third interest in any sums or interest collected “for claims against Robert Burdon [plaintiff’s brother] arising out of improper expenses and misappropriation of assets and funds belonging to the heirs of the estate of Robert L. Burdon [plaintiff’s father] beginning June, 1971 by Robert Burdon, Administrator.” and gives appellant “the full, complete and absolute power of attorney to represent the undersigned [defendant] in these claims.”

The petition alleges appellant had obtained the services of a Kentucky attorney who instituted suit against the administrator in Kentucky, where the succession was opened. It further alleges that before the litigation could be concluded, but as a result of appellant’s representation and work, defendant settled with his brother, under which settlement he received $10,000 in cash and ownership of a yacht valued between $10,000 and $30,000. Thereafter plaintiff instituted this suit, for one-third of the $10,000 and a one-third interest in the yacht.

The trial court recognized the validity of the contingency fee contract under the laws of both Mississippi and Louisiana, but held plaintiff had failed to offer sufficient evidence to justify an award under the contract. The only evidence in the record is the testimony of the two litigants and the notarized contract.

Plaintiff testified the contract was signed on October 14, 1975 and thereafter he represented defendant and defendant’s stepsister, heirs to their father’s estate in Henderson, Kentucky. Over plaintiff’s objection, and that of the Kentucky attorney retained, defendant went to see the lawyers for the administrator and settled for $10,000 cash to be paid in installments of $1,000 per month, and title to a yacht with a purchase price of $20,000, now worth $30,000.

Defendant testified he signed only the second page of the two page contract and did not know what was on the first page. He denied appearing before a notary, admitted receiving $10,000 cash and the yacht, and stated he sold the yacht several years ago for $15,000. He denied seeking legal advice from plaintiff, stating plaintiff volunteered the advice. He considered the advice a matter of friendship and denied agreeing to pay plaintiff one-third. In defendant’s opinion he signed only that part of the contract which stated plaintiff represented him and the only payment plaintiff asked for was to be able to go on an occasional cruise on the boat. Defendant further testified he knew there was another page to the agreement, but he did not ask to see it.

We agree with the trial court that plaintiff and defendant did enter into a valid contingency contract to perform legal services for defendant. However, as the trial court observed, those services were limited to collection of claims against the brother-administrator “arising out of improper and misappropriation of assets and funds” belonging to the estate.

The record does not indicate to what extent, if any, the legal services rendered by plaintiff may have enabled defendant to settle his interest in the succession. A copy of the suit allegedly filed in Kentucky concerning misappropriation has not been offered in support of plaintiffs claim, and the record is devoid of any evidence showing the $10,000 cash and yacht defendant received in connection with his father’s succession did not represent defendant’s rightful interest in the succession itself. Nor does the record contain any evidence showing the money and property received by defendant was a part of, or in any way connected with, claims against defendant’s brother arising out of the latter’s conduct as administrator.

Accordingly, we agree with the trial court's conclusion that plaintiff has failed to carry his burden of proof.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Gilbert T. WHITE et al. v. Mr. & Mrs. Kenneth B. MATHIEU, Sr.
    No. 11407.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.
    Francipane, Regan & St. Pee, Richard T. Regan, Metairie, for Gilbert T. White, et al., plaintiff-appellant and appellee.
    Gauche, Wegener & Oster, Robert J. Oster, Stephen F. Babin, New Orleans, for Miranne & Miranne, third-party defendant and appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

These claims and counter claims result from the non-performance of an agreement to buy and sell real estate.

Plaintiffs, Gilbert T. White, et al. agreed to sell to Mr. and Mrs. Kenneth B. Mathieu, Sr. a certain lot of real estate, conditioned upon the purchaser’s ability to obtain a loan, with the act of sale to be passed on or prior to September 16,1977 before the lender’s notary. The notary, upon examination of the title, discovered a title problem relative to a partnership appearing in the chain of title, and on September 14, two days before the proposed sale, notified the parties that it would be necessary to obtain additional certificates from the Clerk of Court before title could be passed. The proposed sale was agreed upon to be pushed back to a later date, and on September 19, the seller and purchaser signed an agreement extending the date to September 30, 1977. The sale was neither set nor passed on that date, the title problem apparently not being completely resolved, and shortly thereafter the notary set a date of October 13 for the act of sale. The prospective purchasers, Mr. and Mrs. Mathieu, did not show up at the notary’s office for acceptance of the title, and an attempt was made to place them in default. This suit followed by plaintiff sellers seeking to declare the deposit forfeited.

At issue are the related questions of whether the agreement to sell and the agreement to extend became null because no sale was attempted within their time limitations, and whether a putting in default was necessary by one party or the other.

The agreement to sell provided that the act of sale was to be passed before September 16, 1977, but it also contained the following provision: “... in the event bona fide curative work in connection with title is required, the parties herewith agree to and do extend the time for passing of act of sale by thirty days.” The evidence clearly shows that the problem which arose preventing passage of act of sale on September 16 was caused by the necessity for bona fide curative work, and this would result in the extension clause becoming effective. However, three days later on September 19th, the parties signed an agreement extending the date for passing the act of sale on or prior to September 30, less than the thirty day period. The trial judge found as a fact that the extension agreement was “in lieu of the phrase included in the buy and sell agreement extending to the parties the opportunity to execute bona fide curative work”, and based upon that and other facts, concluded that the agreement had expired on its own terms without either party attempting to buy or sell and place the other in default. We conclude that this finding is determinative of the issues on this appeal, and we affirm.

The proposed act of sale was set within the thirty day limitation afforded by the agreement to buy and sell, and because of defendant’s refusal to purchase at that time, plaintiffs would have been entitled to judgment. However, the extension agreement replaced this thirty day period with a period ending on September 30, and there being no attempt at default, etc. prior to that day’s end, the agreement expired in accordance with its terms. There is a dispute as to the intent of this agreement, but Mr. Mathieu testified that he believed that this would be the last day for resolution of the title problem and the real estate agent testified that he caused the parties to sign this agreement and established that date because he believed that the problems would have been resolved by that time. Although there is some evidence supporting another interpretation of the document, there is ample evidence to support the finding of the trial judge, and we can find no error in his finding. Accordingly, the trial judge dismissed plaintiff’s demand for forfeiture of the deposit, and granted the defendants and plaintiffs in reconvention the return of the deposit.

The other issues were correctly resolved by the trial judge, and we do not consider them of such a nature as to require detailed discussion. They are supported both in fact and law, and we affirm.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Mr. and Mrs. Newton F. MARSH v. WINNEBAGO INDUSTRIES, INC. and Camper City of New Orleans, Inc.
    No. 11547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.
    Edward L. Levert, Jr., Young, McMahon & Levert, New Orleans, for defendant-appellant Winnebago Industries, Inc.
    Frederick J. Gisevius, Jr. and David E. Caruso, Jr., Law Offices of Frederick J. Gisevius, Jr., New Orleans, for plaintiffs-appellees.
    Before GULOTTA and SCHOTT, JJ., and C. LENTON SARTAIN, Assigned Judge.
   SCHOTT, Judge.

Defendant, Winnebago Industries, Inc. has appealed from a judgment ordering rescission of the sale of a Winnebago Motor Home purchased by plaintiffs, Mr. and Mrs. Newton F. Marsh from defendant, Camper City of New Orleans, on July 14, 1972, for $13,026.50. The issues are, 1) whether the claim was prescribed under LSA C.C. Art. 2534 by the time the suit was filed on July 22,1974; 2) if the theft of the vehicle while it was in the possession of Camper City constituted a fortuitous event such as to charge the loss to plaintiffs under C.C. Art. 2533; and 3) whether the evidence was sufficient to support the judgment ordering a rescission of the sale for redhibitory vices in the vehicle.

When they purchased the vehicle plaintiffs noticed that the curtains were soiled and were advised by Camper City’s salesman that they would be replaced. Just after the purchase plaintiffs took the vehicle on a trip to Waco, Texas. Before departing they discovered that a puddle of oil had leaked from the vehicle and they put in five quarts of oil. When the vehicle attained a speed of 50 miles an hour on the highway it made a loud humming noise from the rear leading them to take the vehicle to a dealer in Waco. He advised them that they could drive the vehicle back to New Orleans without causing additional damage to the vehicle. On the return trip from Waco plaintiffs drove through heavy rain and discovered that water was leaking into the vehicle. Upon their return to New Orleans they took the vehicle back to Camper City who in turn brought the vehicle to a local Dodge dealer to repair the rear end to eliminate the humming noise. Camper City made an attempt to repair the leaks but never succeeded and until the end of 1972 plaintiffs continued to return the vehicle to Camper City with complaints of leaking and other problems such as a defective refrigerator and a defective door lock. In the meantime Camper City lost its franchise with Winnebago as an authorized dealer, and in January, 1973, Camper City took the vehicle to an authorized Winnebago dealer in Patterson, Louisiana, where attempts continued to repair the leaks in the vehicle. Some time in 1973 the dealer in Patterson added a brace to the roof to prevent it from sagging and to correct the leaking and in the spring of 1973 Camper City was contacted by this dealer to retrieve the vehicle since there was some danger of flooding in the Patterson area at that time. On July 30, 1973, Camper City wrote a letter to plaintiffs asking them to pick up the motor home and advising them that all repairs had been made with the exception of a new set of curtains on order from Winnebago. Plaintiffs refused to accept the vehicle without the new curtains and they filed this suit on July 22, 1974. In December plaintiffs learned that the vehicle had been stolen from Camper City early in July, 1974.

The trial judge awarded plaintiffs their purchase price of $13,026.50, together with attorney fees in the amount of $2600.00. In his reasons for judgment he found that the leaky roof, engine hum, defective ring and pinion, oil leaks and refrigerator malfunction were sufficiently serious to make the vehicle unfit for the purpose for which it was intended so as to entitle plaintiffs to redhibition under C.C. Art. 2520. Attorney fees were assessed only against Winnebago as the manufacturer presumed to know the defects of the thing it manufactured pursuant to C.C. Art. 2545.

In this court Winnebago first contends that plaintiffs’ claim was prescribed by C.C. Art. 2534. While this article provides for a one-year prescription commencing from the date of the sale, where the seller has made continued attempts to repair the defects, prescription does not begin to run until the seller has abandoned all such attempts to repair. First National Bank of Ruston v. Miller, 329 So.2d 919 (La.App. 2nd Cir. 1976), writs refused, 333 So.2d 243, de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4th Cir. 1973), writs refused, 286 So.2d 662. The seller in this case did not abandon attempts to repair this vehicle until July 30, 1973, so that the filing of the suit on July 22 of the following year was timely. While plaintiff testified that he saw the vehicle at Camper City between the date of its return there from Patterson in the spring of 1973 and the date of Camper City’s letter, there was still work to be done on the vehicle and he was justified under these circumstances in refusing to accept it until all the work had been done. It is significant that even after the letter was written the curtains were still not replaced and exception to this item had been taken by plaintiffs from the very beginning.

Next, Winnebago attempts to minimize the defects in the vehicle and takes the position that individually and collectively they were not serious enough to render the vehicle “either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice,” as required for redhibition under C.C. Art. 2520. The record supports the trial judge’s conclusion that the defects were sufficient to entitle plaintiffs to the remedy of redhibition. The principal defect was the leaking roof which was revealed to plaintiffs a short time after they purchased it and which Camper City and the Patterson dealer attempted to correct for almost a year after the plaintiffs’ purchase. Not until the roof brace was installed was this defect presumably corrected in the spring of 1973 at a time when this corrective measure was also necessitated by the roof’s sagging. From the testimony of the Camper City representatives this was not an uncommon defect. The leaking alone would seem to justify redhibition under Baughman v. Quality Mobil Homes, Inc., 289 So.2d 376 (La.App. 1st Cir. 1973). But when this is considered along with the other defects which appeared in the vehicle and the long period of time during which plaintiffs were deprived of the use of their vehicle while attempts were being made to correct the defects, the conclusion follows that these plaintiffs would not have purchased this vehicle had they known of the vices and that the vehicle’s use was indeed inconvenient and imperfect under the circumstances so as to entitle plaintiffs to redhibition.

Next, Winnebago asserts that the theft of the vehicle in early July of 1974 was a fortuitous event so as to activate the provisions of C.C. Art. 2533:

“If it has perished by a fortuitous event, before the purchaser has instituted his redhibitory action, the loss must be borne by him.
But if it has perished, even by a fortuitous event, since the commencement of the suit, it is for the seller to bear the loss.”

Nixon v. Bozeman, 11 La.Ann. 750 (1856) disposes of Winnebago’s contention:

“.... Until the thing is shown to have perished, the presumption exists that it may yet be recovered; that there is still a property in the thing which may be divested by the rescission.... ”

There is no showing that the motor home has perished, only that it cannot be found by Winnebago and the Nixon presumption is that it may be recovered. It is significant that plaintiffs were not notified about this theft until December, 1974, long after they instituted this suit. We find no error in the trial court’s conclusion that the theft of the vehicle is not what the law considers a “fortuitous” event, and Winnebago’s contention in this regard was properly rejected.

Finally, Winnebago contends that plaintiffs are not entitled to attorney fees because there was no proof that the leak as a defect existed at the time of the sale. In support of this argument they cite C.C. Art. 2530 and Guillory v. Pitre Ford Company, 345 So.2d 1274 (La.App. 3rd Cir. 1977). In the cited case the court would not infer that the leak existed at the time of the sale since the leak first occurred five or six weeks after the sale during a hard rain. However, there was testimony in the case that the leak was probably a break in one of the welds which occurred more than three days after the sale. In the instant case the leak was discovered just a few days after the sale when plaintiffs were returning from Waco, the curtains were soiled even before the vehicle was purchased by plaintiffs, and defendants offered no evidence to suggest that the leak was probably not in existence at the time of the sale. Thus, regardless of the presumption provided by C.C. Art. 2530 plaintiffs carried their burden of proof to show that the leak probably existed at the time of the sale. This showing entitles plaintiffs to attorney fees under C.C. Art. 2545 since Winnebago as a manufacturer is presumed to know of the defects of the thing it manufactures and therefore is deemed to be in bad faith under the Article. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The judgment is in the form of a money judgment against Winnebago and the dealer Camper City for $13,026.50 with no requirement for return of the vehicle, but this is explained by the fact that the vehicle was stolen while in Camper City’s possession. Camper City did not appeal from the judgment.


author: EDWARD J. STOULIG, Judge

text:
    COMMERCIAL BANK & TRUST v. Angelo J. SCIORTINO.
    No. 11565.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.

      Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiff-appellee.
    Bruno, Bruno & Blouin, Frank S. Bruno, New Orleans, for defendant-appellant.
    Before CHEHARDY, GARRISON and STOULIG, JJ.
   EDWARD J. STOULIG, Judge

Pro Tem-pore.

This is an appeal by defendant, Angelo Sciortino, from a judgment rendered in favor of the plaintiff, Commercial Bank and Trust Company, on a suit on a promissory note.

Plaintiff’s petition alleges that the defendant executed a promissory note in its favor in the sum of $19,806.36, payable in eighty-four monthly installments of $235.79, commencing on March 10,1978 and continuing monthly thereafter. Said note provided failure to pay any installment when due shall mature all remaining installments together with an annual interest rate of 12.98 percent and 25 percent attorney’s fees. It is further alleged that said note was mistakenly returned to the defendant. Defendant failed to pay the January 15, 1979 installment and, as a result, the outstanding principal balance of $17,484.40, together with interest and attorney’s fees are demanded in plaintiff’s suit.

After a trial on the merits, the lower court rendered judgment in plaintiff’s favor condemning defendant to pay the bank $17,484.40, the balance due on the note, plus interest at an annual percentage rate of 12.98 percent and 25 percent attorney’s fees and the costs of the proceedings. Defendant was allowed a credit of $5,007.82 for unearned interest.

Defendant contends the trial court erred in three respects: (1) in failing to sustain his exception of no cause of action; (2) in concluding that sufficient proof was tendered in support of the lost instrument to warrant judgment in favor of plaintiff; and (3) in awarding plaintiff attorney’s fees and penalty interest.

Defendant’s exception of no cause of action is directed towards the allegation in the petition that plaintiff is the possessor of a note when on the trial of the matter the court permitted plaintiff to adduce proof in support of a lost instrument, without the original petition being amended.

A reading of the petition reflects that plaintiff avers it is the holder of the note which was mistakenly returned to the defendant. Nowhere in the pleadings or proceedings does plaintiff allege or concede that the note is a lost instrument.

The trial court properly overruled the exception and permitted plaintiff to introduce the best available secondary evidence, testimonial and documentary, to establish the existence and the contents of the instrument. C.C. Art. 2279; 32 C.J.S. Evidence § 824, page 752.

Appellant’s second assignment of error, the insufficiency of proof, is without merit. A review of the evidence bearing upon this issue discloses that plaintiff’s employee, Anita Phillips, allegedly responsible for mailing the note back to Sciortino testified how this account, which should have been treated as delinquent was mistakenly stamped “paid out” and returned to the customer. Upon discovery of her error she immediately notified her supervisor, Elliott J. Gaulon, a Vice-President of the bank.

Gaulon corroborated Phillips’ testimony and upon learning of the situation he requested Billie Brennan, the bank’s installment loan collector, who had prior dealings with Sciortino to attempt to procure the return of the note.

Brennan testified that she did contact Sciortino who initially was very cooperative admitting that he had the note and stating he would return the note to her if she would come to his place of business. For Brennan’s convenience, Gaulon volunteered to pick the note up; however, when he arrived at Sciortino’s beauty school, defendant refused to return the instrument.

Plaintiff next produced a photostatic copy of the promissory note, the contents of which are illegible except for the following typed or written information: (1) title of Commercial Bank; (b) the date, “February 10, 1978”; (c) the typewritten names and address, “Maria Alvarez, wife of/and Angelo J. Sciortino, 306 West William David Parkway, Metairie, Jefferson, La. 70005”; (d) “84”, the alleged number of monthly installments; (e) “March 15, 1978”, the alleged date the first monthly installment was payable; (f) “235.79”, the alleged amount of the monthly installments; (g) “19806.36”, written out and in numerical form, the alleged principal amount of the note; (h) “February 15, 1985”, apparently the date of the final monthly installment; (i) “12.98”, the alleged annual interest rate in the event of default; and (j) two barely discernible written and typed signatures, which if closely examined appear to be signed: “Angelo J. Sciortino and Maria Alvarez Sciortino”.

Through the testimony of its Vice-President, Gaulon, plaintiff established that this photostatic copy was a true representation of the original note signed by Mr. and Mrs. Sciortino. He further testified this was the only obligation of Sciortino with the bank and the only one requiring the monthly payment of $235.79. Mr. Gaulon further stated that after suit was filed, Sciortino made a payment of $235.79 by a check dated February 3, 1979 which subsequently was dishonored. This witness also identified the collateral mortgage note and mortgage pledged to secure the payment of the principal obligation and it appears that the signatures of Mr. and Mrs. Sciortino on the primary note and the collateral mortgage are identical.

As opposed to this evidence, Mr. Sciorti-no’s testimony must be characterized as vague and evasive. Under cross-examination he could not recall signing the note because he signed so many papers the purpose of which he did not know; he did not know if he signed a note for $19,806.36; he could not identify his signature on the note because his eyes were “blurry” and he did not have his glasses with him; and he could not recall if he made payments in the sum of $235.79 to the bank. He specifically denied ever having received a note from the bank.

The trial court permitted the introduction into evidence of the copy of the hand note and the collateral mortgage note and mortgage. Although the photostatic copy is poor, the above mentioned terms are sufficiently legible to prove this is a copy of the note on which Sciortino borrowed the funds from the bank. We agree with the trial court’s determination that there was sufficient evidence to prove the existence of the note.

The proof presented by plaintiff was sufficient under C.C. Art. 2279 to prove the fact that Angelo Sciortino owed $19,806.36 in principal and interest to the Commercial Bank on December 9, 1977. It was established by the testimony of the Vice-President, Gaulon, that payments had been made to decrease the balance due to $17,449.25, and the judgment of the trial court must be amended to reflect this amount subject to a credit of $5,007.82 unearned interest. Plaintiff is also entitled to interest on its judgment at the annual rate of 12.98 percent stipulated in the note.

Next we reach the issue of the attorney’s fees. In order to recover attorney’s fees plaintiff bears the burden of establishing by the best available evidence that this charge was provided in the note. Plaintiff sought to prove it was entitled to 25% attorney’s fees based upon the provision to this effect in the collateral mortgage note. No evidence was introduced to prove that the attorney fee specified in the hand note, was identical in amount to that in the collateral mortgage.

Examining the photostatic copy, we note that all typed information is legible and since we are unable to find any typed figure of 25%, we must conclude that it forms part of the printed provisions of the note. If such is the case, in order to fulfill its obligation to present the best available evidence, plaintiff should have produced a printed form of the note in use by the bank at the time of Sciortino’s loan to confirm the rate of attorney’s fees, or in the alternative explained its inability to do so. Having failed to present such evidence, the award of attorney’s fees must be annulled.

For the foregoing reasons, the judgment of the trial court is amended so as to grant judgment in favor of plaintiff, Commercial Bank and Trust Company, and against the defendant, Angelo J. Sciortino, in the full and true sum of Seventeen Thousand Four Hundred Forty Nine and ^/ioo ($17,449.25) Dollars subject to a credit for unearned interest of Five Thousand Seven and 82/ioo ($5,007.82) Dollars together with interest of 12.98 percent per annum from date of judgment and for all costs of these proceedings.

ANNULLED IN PART; AMENDED IN PART AND AS AMENDED AFFIRMED.

      . The payment of the promissory note was secured by the pledge of a $25,000.00 collateral mortgage note and collateral mortgage executed by the defendant and his wife dated September 9, 1977.

      . Art. 2279. Proof of contents of lost instrument
      Art. 2279. When an instrument in writing, containing obligations which the party wishes to enforce, has been lost or destroyed, by accident or force, evidence may be given of its contents, provided the party show the loss, either by direct testimony, or by such circumstances, supported by the oath of the party, as render the loss probable; ...

      .“ ‘Secondary evidence is admissible, where the primary evidence of the fact sought to be proved has been destroyed by the party seeking to establish the fact, only where such destruction was by accident or mistake or free from circumstances of fraud.’ 32 C.J.S. Evidence § 824, page 752.”


author: CHEHARDY, Judge.

text:
    Charlotte G. HILL v. Richard N. HILL, Jr.
    No. 11492.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.

      Charles D. Lancaster, Jr., Metairie, for plaintiff-appellee.
    Jay C. Zainey, New Orleans, for defendant-appellant.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   CHEHARDY, Judge.

Defendant, Richard N. Hill, Jr., appeals a summary judgment in favor of the plaintiff, Charlotte H. Hill, in the sum of $4,535.48, together with interest at the rate of 6% from October 11, 1974 until paid and for all costs of the proceedings.

Mrs. Hill, a resident of the County of Macon, State of Illinois, filed a petition in the Parish of Jefferson, State of Louisiana, the domicile of the defendant, alleging that she was the judgment creditor of Mr. Hill by virtue of a judgment of the Circuit Court of the Sixth Judicial District of Macon County, Illinois, rendered on October 21,1974 and made executory under the laws of the State of Illinois.

Attached to Mrs. Hill’s petition was an authenticated copy of the Illinois judgment, which ordered, adjudged and decreed:

“1. A judgment is entered for the amount of past due support in the amount of $4,092.00 and accumulated interest thereon through October 11, 1974, in the amount of $443.86 for a total of $4535.86.
“2. That the Defendant-Respondent-Judgment Debtor, Richard N. Hill, Jr., is ordered to pay said sum within 30 days of the date hereof.
“3. That in the event that said Richard N. Hill, Jr., Defendant-Respondent-Judgment Debtor, does not pay said sum within said period, the Clerk on this Court is ordered to issue execution hereon.”

We can find no merit in defendant’s argument that since LSA-C.C. art. 3538 bars arrearages of alimony by the prescription of three years, the trial court should have refused to recognize the Illinois judgment. This issue has been specifically addressed by the First Circuit in Swain v. Swain, 339 So.2d 453 (La.App. 1st Cir. 1976), wherein the court said at pages 455-456:

“The object of the plaintiff’s suit was to annul portions of an obviously valid and final Florida judgment. However, it is axiomatic that a Louisiana court is powerless to annul the judgment of a sister state.
“A Louisiana court is also powerless to deny a Florida judgment the full faith and credit which is accorded to it by Article 4, Section 1, of the United States Constitution unless the Florida court lacked jurisdiction over the parties or the subject matter involved in the controversy. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1941); Crichton v. Succession of Crichton, 232 So.2d 109 (La. App. 2nd Cir. 1970), writs refused, 256 La. 274, 236 So.2d 39 (1970), U.S. certiorari denied, 400 U.S. 919, 91 S.Ct. 172, 27 L.Ed.2d 159, U.S. rehearing denied, 400 U.S. 1002, 91 S.Ct. 449, 27 L.Ed.2d 453 (1971).
“On the facts of the record before us, the Florida court obviously had jurisdiction over both the parties and the subject matter, that is, the marriage that existed between the plaintiff and the defendant and the legal effects that flowed therefrom. * * *
“In view of the foregoing, the application of the full faith and credit clause to the instant case renders the courts of Louisiana powerless to deny the validity and effect of the Florida judgment.
“The courts of Louisiana are powerless to inquire into the merits of the cause of action or the validity of the legal principles on which the Florida court based its decision. U.S. Constitution, Article 4, Section 1; Milliken, supra.

Similarly, since this court can find no evidence that the Illinois court lacked jurisdiction over the parties on the subject matter involved in this controversy, the full faith and credit clause of the United States Constitution precludes our examination of the case on its merits.

For the reasons assigned, the district court judgment is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    James J. DAVIS et al. v. LOUISIANA COMPUTING CORPORATION et al.
    No. 11441.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 1981.
    Rehearing Denied March 16, 1981.

      Chaffe, McCall, Phillips, Toler & Sarpy, G. Phillip Shuler, New Orleans, for plaintiffs-appellees.
    Cecil M. Burglass, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   REDMANN, Judge.

A corporate employer and its president and secretary-treasurer appeal from a judgment awarding $24,000 to a former employee as damages from being fired because he became a candidate for political office. Plaintiff answers, seeking increase in the award.

Defendants argue that plaintiff did not prove that he was fired because of his candidacy and did not prove a violation of R.S. 23:961 prohibiting such a firing. Defendants alternatively argue that the award included impermissible punitive damages. We affirm.

The corporation derived a substantial part (about 60%) of its business from Jefferson Parish and its school board and other governmental agencies. A substantial part of this business was negotiated rather than publicly bid. The corporation and its officers understandably did not wish to alienate the public officials with whom they dealt. When plaintiff became a candidate for Kenner city council, opposing a candidate supported by some Jefferson Parish officials, corporate secretary-treasurer Westerlund told plaintiff that the corporation would benefit if plaintiff withdrew his candidacy, and corporate president Harding thereafter fired plaintiff, who did not withdraw. Harding and Westerlund testified that plaintiff was fired not because of his candidacy, but because of economic reasons. Other evidence, although in part contradicted, tends to support plaintiff’s and discredit defendants’ version of the firing. It is the trial court’s function to determine credibility of witnesses. Moreover, the trial court’s reasonably supported factual inferences cannot be supplanted by those of an appellate court. Arceneaux v. Domingue, La. 1978, 365 So.2d 1330; Canter v. Koehring Co., La.1973, 283 So.2d 716.

We note the “business” justification for firing plaintiff in this case is a real one: plaintiff’s candidacy would antagonize persons who could withdraw business from plaintiff’s employer. In that sense, plaintiff by his candidacy made himself a detriment to his employer and was “disloyal” to his employer. But the policy of the statute is unmistakable: the employer may not control political candidacy of his employees. We see no exemption from the legislative purpose because of the nature of the employer’s business.

Defendants argue that in any case firing an employee for being a political candidate is not proscribed by R.S. 23:961: that the statute only proscribes “any rule, regulation or policy” tending to control an employee’s political activity, or “threats” of firing. The record, however, supports the view that defendants did develop a pro-scribed policy as a result of plaintiffs candidacy, and that plaintiff was threatened. Moreover, the actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings.

On quantum, the $24,000 award compensates for 36 days of unemployment (about a tenth of a year, say $3,600) and employment thereafter at a yearly salary of $23,000, $13,000 lower than the $36,000 plaintiff was earning with defendants. Even at trial time, two years later, plaintiff was still earning only $27,000. Yet plaintiffs employment with defendants was not for a specified term (see C.C. 2749) and thus damages are not recoverable on a theory that his employment would have continued without end. We conclude plaintiffs damages are not mathematically ascertainable, and we cannot say the trial judge erred in his estimation.

Affirmed.

      . Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.
      Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.
      Nothing herein contained shall in any way be construed to prevent the injured employee from recovering damages from the employer as a result of suffering caused by the employer’s violations of this Section.


author: CUTRER, Judge.

text:
    James B. SLATER, Jr., Plaintiff-Appellant, v. Victoria Fontenot SLATER, Defendant-Appellee.
    No. 8215.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 26, 1981.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Fusilier, Pucheu, Soileau & Cored, C. Brent Cored, Vide Platte, for defendant-ap-pellee.
    Before CUTRER, DOUCET and LA-BORDE, Judges.
   MOTION TO DISMISS

CUTRER, Judge.

The Plaintiff-Appellant, James B. Slater, Jr., appeals from a judgment of the trial court denying him child support. This court, ex proprio motu, issued a rule to show cause why the appeal should not be dismissed as being untimely under LSA-C. C.P. art. 3943. The appellant has answered the rule.

The judgment of the trial court was signed and notice of judgment was mailed on September 4, 1980. No new trial was applied for. This appeal was taken on October 24, 1980, more than 30 days, but less than 60 days, from the expiration of the delay for applying for a new trial.

Articles 3942 and 3943 of the Code of Civil Procedure provide that an appeal from a judgment awarding alimony or custody must be taken within 30 days of the applicable date provided in LSA-C.C.P. art. 2087. Our jurisprudence has interpreted art. 3943 as governing all appeals concerning alimony or custody. In Malone v. Malone, 282 So.2d 119 (La.1973), the court held as follows:

“Confusion has arisen when the judgment being appealed was rendered pursuant to a rule or a petition for the modification or termination of alimony or custody. Usually, the appellate courts have either construed the judgments to be analogous to ‘judgments awarding’ alimony or custody or have merely applied C.C.P. 3943 to the appeal without articulating their rationale. Picinich v. Picinich, 271 So.2d 670 (La.App. 1st Cir. 1972), Crum v. Crum. 261 So.2d 358 (La.App. 1st Cir. 1972), McNeill v. McNeill, 257 So.2d 767 (La.App. 4th Cir. 1972), Cilano v. Cilano, 255 So.2d 634 (La.App. 1st Cir. 1971), Castille v. Castille [221 So.2d 834 (La.App. 1st Cir. 1969)], supra. However, some courts have found that judgments which either terminate or deny alimony or custody are not governed by C.C.P. 3943. King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971) writ refused, 260 La. 128, 255 So.2d 353 (1971), Derussy v. Derussy, 173 So.2d 544 (La. App. 4th Cir. 1965).
“Such confusion could not have been intended by our legislature. The uniform treatment of judgments relating to alimony or custody seems to have been intended. Such treatment would not subvert the purpose of C.C.P. 3943, but would eliminate the unnecessary confusion caused by that article. Strong reason supports the policy of expediting appeals in alimony and custody matters.
“Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.”

The plaintiff-appellant contends that LSA-C.C.P. art. 3943 pertains to alimony and custody judgments only, and not to judgments denying child support. This contention is without merit. In Zaunbrecher v. Zaunbrecher, 338 So.2d 797 (La.App. 3rd Cir. 1976), this court held that the delay for taking an appeal from a judgment denying a reduction in child support was governed by the provisions of LSA-C.C.P. art. 3943. Also, in the recent case of Donaldson v. Donaldson, 389 So.2d 1375 (La.App. 3rd Cir. 1980), this court held that an appeal from a judgment, denying alimony pendente lite, was governed by art. 3943. The same reasoning should apply to an appeal from a judgment denying child support.

Because this appeal was taken later than 30 days from the expiration of the delay for applying for a new trial, this appeal is not timely under LSA-C.C.P. art. 3943 and, therefore, must be dismissed.

APPEAL DISMISSED.


text:
    Joseph E. O’NEAL v. Mary H. O’NEAL.
    No. 11476.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 26, 1981.

      Reed & Reed, Floyd J. Reed, J. D., New Orleans, for plaintiff-appellant.
    Before SAMUEL, REDMANN, and BOU-TALL, JJ.
   REDMANN, Judge.

An ex-husband appeals from an award of alimony to his ex-wife and “physical custody” of their child to him “subject to the present arrangement” of the child’s staying with relatives of the wife. We affirm the alimony and modify the custody award.

The two issues are related. Notwithstanding the absence of expert testimony, it is evident from the wife’s testimony (and doubtless found by the trial judge) that she has had and continues to have medical problems that both prevent her working full time and contraindicate her having the responsibility of her child at this time.

The question of the child’s custody must be resolved by awarding the ex-husband custody without limitation other than reasonable visitation by the ex-wife. Someone must have the legal custody and authority over the child, and that custodian must make such decisions as where the child goes to school and where the child stays while going to a school somewhat removed from the custodian’s own home.

The question of alimony must be resolved against the ex-husband. The ex-wife proved her freedom from fault (and the ex-husband largely conceded it) except that the ex-husband testified that the wife left the marital domicile and did not return. A simple leaving without returning does not, however, constitute abandonment within La.C.C. 143 for a judgment of separation because C.C. 143 requires the further element that the spouse who left “has constantly refused to return .... ” Bergeron v. Bergeron, (La.App.1979), 372 So.2d 731. And “only such conduct as will entitle one spouse to a separation or divorce ... is sufficient to deprive the other spouse of alimony after a final divorce.” Adams v. Adams (La.1980), 389 So.2d 381, 383.

To rule to the contrary would oblige the ex-spouse seeking alimony to prove not merely absence of causative fault on his or her part, but presence of fault on the other spouse’s part . A spouse may therefore concede that he or she left the marital domicile without thereby taking on the burden of proving that causative fault by the other spouse obliged the spouse to leave: it is only upon a showing that a spouse both left and “constantly refused” to return, we repeat, that that spouse’s fault sufficient to found a judgment of separation or to deny alimony is established.

Amended to award custody to ex-husband with reasonable visitation by ex-wife; otherwise affirmed.


text:
    Robert DANIELS et al. v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD et al.
    No. 11310.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1981.
    Frank J. D’Amico, New Orleans, for plaintiffs.
    William J. Guste, Jr, Atty. Gen, Ronald C. Davis, Asst. Atty. Gen, Dept, of Justice, New Orleans, for non-party appellant.
    Deutsch, Kerrigan & Stiles, Robert E. Kerrigan, Jr, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

The core question in this case is whether confidentiality of juvenile case proceedings, La. C.J.P. 14 E, denies to a plaintiff in a wrongful death action a transcript of the juvenile adjudication hearing which arose out of the wrongful death and to which plaintiff was admitted by authority of C.J.P. 69, 2d paragraph.

We answer that it does not. Because plaintiff was a “person who has a proper interest in the proceedings” within art. 69, he was properly admittable to the adjudication hearing. And, because art. 14 E only makes proceedings confidential “[ejxcept as provided in Article 69 or otherwise provided by law,” the proceedings are not confidential as to plaintiff.

The legislative limit upon admission protects the juvenile from the eyes of. persons whose only interest is curiosity, but not persons whose interests are “proper.” A parent whose child has been killed, accidentally or intentionally, has a proper interest, if anyone does, in observing the adjudication hearing. That parent equally has the right, in a civil action arising out of the death of the child, to impeach a witness’s testimony that conflicts with that witness’s testimony in the juvenile proceeding. One hardly need point out that a civil trial witness, juvenile or not, is solemnly bound to tell the truth, including truth that was shielded from public view in the juvenile case. The shield of confidentiality was not designed and cannot be permitted to fraudulently defeat civil reparation of juvenile wrong. The juvenile could therefore not successfully object to the introduction of his or her prior inconsistent statement, whether in the form of an extract from the transcript of the juvenile court testimony or in the form of testimony by plaintiff who heard the juvenile court testimony. Much less could an adult who testified at the juvenile court proceeding claim any confidentiality under C.J.P. 14 E to defeat introduction of his or her prior inconsistent statement. Plaintiff, who was present at the Family Court’s hearing, represents that the juvenile’s and an adult’s testimonies there conflict with their civil depositions.

We therefore conclude that C.J.P. 14 E does not defeat plaintiff’s demand for access to a transcript of the Juvenile Court hearing.

The juvenile court, however, does not owe plaintiff a free transcript, and the question of its cost is one for that court. Accordingly, other questions aside, any order for a transcript would have to make provision for prior payment of its cost.

Indeed, it is only because the Family Court Judge did not himself assert the question that we have not simply vacated the Civil District Court’s order on the ground that that court has no authority to order the Family Court to produce records, and that the request for a transcript should have been addressed instead to the Family Court as C.J.P. 123 B (added, Acts 1979 No. 504, effective September 7, 1979) now expressly rules. This court is the proper reviewing court from either of those courts, however, and in the interest of judicial economy, we have elected to consider this matter as if the Family Court Judge had himself denied an application to the Family Court for the transcript, and review of that denial had been sought and given improperly in the Civil District Court, and further review had been sought from us.

Finally, we note that this matter comes to us in the form of an appeal, but we accept it as an application for certiorari which we grant.

The ruling appealed from is vacated and it is now by this court

ORDERED that the Honorable Salvador J. Mule, Judge, Orleans Parish Family Court, Section C, afford to Robert Daniels, after Daniels’s payment of its cost, a transcript of the testimony at the adjudication hearing in matter no. 174 — 483.

      . Juvenile cases shall be docketed and handled separately from regular criminal and civil cases, and juvenile case records shall be confidential and kept separately. Except as provided in Article 69 or otherwise provided by law, juvenile proceedings shall not be public.
      [Compare La.R.S. 13:1586: “information .. . shall be privileged ... and shall not be open to public inspection.... ” See also Thibodeaux v. Judge, Juvenile, Div., 14th Jud. Dist., La.App. 3 Cir.1979, 377 So.2d 508.]

      . The court may admit any other person who has a proper interest in the proceedings or the work of the court.

      . The plaintiff also requests “exhibits,” but that question is not briefed, and we are not informed of the relevance of those exhibits, if any. That issue can be addressed to the Family Court if its exhibits are needed.

      . For good cause, the court may order disclosure of records and reports of the court, probation officers, and law enforcement agencies to any person, agency, institution or other court upon a particular showing that the information is relevant to a specific investigation or proceeding.


author: FORET, Judge.

text:
    John C. THIBODEAUX, Plaintiff-Appellee-Appellant, v. Alex OLIVIER and Fireman’s Fund Insurance Company, Defendants, Commercial Union Insurance Company, Defendant-Appellant-Appellee.
    No. 7730.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff-appellant.
    Lewis & Lewis, James C. Lopez, Opelou-sas, for Commercial Union Ins. Co.
    Olivier & Brinkhaus, John L. Olivier, Sunset, Schiff, Opelousas, Voorhies & Labbe, Richard D. Chappuis, Jr., Lafayette, for Alex Olivier and Fireman’s Fund Ins. Co.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

John C. Thibodeaux (Plaintiff) instituted this tort action to recover damages for personal injuries he suffered in a collision between a truck and a farm tractor. The defendants are Alex Olivier and his liability insurer, Fireman’s Fund Insurance Company (Fireman’s). Plaintiff later amended his petition to add as defendant, Commercial Union Insurance Company (Commercial), which provided uninsured motorist (U.M.) coverage under a policy issued to plaintiff. Commercial answered the petition and made a third party demand against Alex Olivier to recover amounts it had paid or might have to pay to plaintiff.

The trial court rendered judgment in favor of plaintiff on his main demand and in favor of Commercial on its third party demand. These two parties bring this appeal and raise two issues.

(1) Whether plaintiff is entitled to “stack” the U.M. coverages under his policy issued by Commercial, and
(2) Whether Commercial is entitled to reimbursement or subrogation to recover the amounts it has paid or will have to pay plaintiff.

FACTS

Plaintiff was injured on June 11, 1978, when the tractor he was riding was struck from the rear by a motor vehicle driven by Daniel Olivier, the minor son of Alex Olivier. The accident resulted in the amputation of plaintiff’s left leg below the knee.

Plaintiff instituted this action on July 10, 1978, alleging that the sole and proximate cause of the accident was the negligence of Daniel Olivier. Trial of this matter was held on June 28, 1979, and the trial court rendered judgment on October 3, 1979. The judgment awarded plaintiff the sum of $103,544.93 in damages against Alex Olivier, individually, and in solido with Fireman’s up to its policy limits of $5,000.00. Alex Olivier and Fireman’s brought no appeal, therefore the judgment against them is final.

The trial court also rendered judgment against Commercial and set its limit of liability at $50,000.00. Commercial appeals from that part of the judgment.

“STACKING INSURANCE COVERAGE”

Commercial issued a family automobile policy to plaintiff on July 31, 1977, which provided coverage against uninsured or underinsured motorists. The policy listed two vehicles, a 1976 GMC and a 1978 Chevrolet as “owned automobiles” insured, and limits of U.M. coverage were set at $25,-000.00 for each person and $50,000.00 for each accident.

The trial court allowed plaintiff to “stack” the U.M. coverage for each vehicle with the effect that Commercial’s limit of liability for each person (here, the plaintiff) was set at $50,000.00. Commercial contends that the trial court erred and raises the issue of whether plaintiff is entitled to “stack” the U.M. coverages of his policy.

Commercial presents two factors upon which it bases its contention. First, the policy itself contains a provision against “stacking”. Second, the enactment by the legislature of Act 623 of 1977, popularly known as the “anti-stacking” statute.

Plaintiff counters by citing the case of Barbin v. U. S. Fidelity and Guaranty Company, 315 So.2d 754 (La.1975) for the proposition that an “anti-stacking” clause in an insurance policy is void as being in derogation of LSA-R.S. 22:1406 which requires that an insurer provide U.M. coverage in certain limits for each insured vehicle. We find that Barbin v. U. S. Fidelity and Guaranty Company, supra, has been legislatively overruled by LSA-R.S. 22:1406(D)(l)(c) which reads:

“(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy, provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recover under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (Emphasis provided.)

This subsection was added by Act 623 of 1977, effective September 9,1977. Plaintiff cites Manuel v. American Indemnity Company, 368 So.2d 1200 (La.App. 3 Cir. 1979), arguing that this Court there refused to retroactively apply LSA-R.S. 22:1406(D)(l)(c). However, that case can be distinguished from the case before us in that the accident in Manuel v. American Indemnity Company, supra, occurred before Act 623 of 1977 became effective.

Here, plaintiff was injured on June 11, 1978, and it was on that date that his cause of action arose. Act 623 of 1977 had been effective for some nine months prior to that date and plaintiff’s cause of action is governed by that statute.

Plaintiff also cites O’Banion v. Allstate Insurance Company, 347 So.2d 878 (La.App. 3 Cir. 1977) and argues that in that case this Court refused to give effect to an amendment of a statute which became effective after an insurance policy had been issued but before the accident occurred. We did so because we found that to give effect to the amendment would result in changes in the terms and conditions of the policy which was issued before the amendment became effective. Here, no change will be made in the terms and conditions of the policy by Act 623 of 1977, as the policy contains a clause specifically prohibiting “stacking” (in effect, the statute actually codifies the policy provision). Further, to apply Act 623 of 1977 to the facts before us will in no way result in the impairment of any party’s obligation or rights under the contract of insurance.

We hold that the trial court erred in allowing the plaintiff to “stack” the U.M. coverages of his policy with Commercial and that Commercial’s limit of liability is $25,000.00.

REIMBURSEMENT

The trial court rendered judgment in favor of Commercial on its third party demand against Alex Olivier and held it subrogated to all rights of the plaintiff against Alex Olivier to the extent of $50,-000.00. The question is whether Commercial is entitled to reimbursement or subro-gation to recover the amounts it has paid or will have to pay the plaintiff.

Plaintiff argues that Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979) is controlling and it is his position that the rule of that case is that LSA-R.S. 22:1406(D)(4) provides neither subrogation nor reimbursement to the underinsured motorist carrier. We have reviewed that opinion of the Supreme Court and find that it offers no support for plaintiff’s position. LSA-R.S. 22:1406(D)(4) provides that:

“(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”

Our Supreme Court recognized this right of reimbursement in Niemann v. Travelers Insurance Company, supra, when it stated at page 1007 that:

“On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406D(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tort-feasor.”

This Court also recognized this right to reimbursement in Bond v. Commercial Union Assurance Companies, 387 So.2d 617 (La.App. 3 Cir. 1980) where we stated on page 620 that:

“The Supreme Court pointedly and emphatically pronounced that 22:1406D(4) imparts to the uninsured motorist insurer no subrogation rights. The only rights which the uninsured motorist insurer does have is the right to reimbursement from the insured and not from the tort-feasor.”
Accord: McGrew v. State Farm Mutual Automobile Insurance Company, 385 So.2d 1276 (La.App. 3 Cir. 1980).

The above statute and jurisprudence clearly give no right of subrogation to an insurer who must pay for damages or injury to an insured based on U.M. coverage, and it was error for the trial court to recognize a right of subrogation in favor of Commercial. Commercial is only entitled to reimbursement from the proceeds of the judgment obtained by plaintiff against Alex Olivier which plaintiff actually receives. Reimbursement is to be to the extent of Commercial’s payment to plaintiff under the U.M. coverage of the policy.

For the above and foregoing reasons, the judgment of the trial court is affirmed as against Alex Olivier and Fireman’s Fund Insurance Company, and amended to reduce Commercial Union Insurance Company’s liability to plaintiff under its underinsured motorist coverage to $25,000.00, and further amended to reverse the trial court finding awarding subrogation rights to Commercial, and in lieu of subrogation, to recognize Commercial’s right of reimbursement for any amount which plaintiff may recover against Alex Olivier, up to the amount that Commercial has paid or will pay to plaintiff.

Costs of this appeal are assessed equally against Commercial Union Insurance Company and John C. Thibodeaux.

AFFIRMED IN PART, AMENDED IN PART AND RENDERED.


author: LABORDE, Judge.

text:
    J. Larry BRASSEAUX, Plaintiff-Appellee, v. Lawless J. REAUX, Jr., Defendant-Appellant.
    No. 8054.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Shelton & Legendre and Harold L. Sa-voie, Lafayette, for defendant-appellant.
    J. Michael Placer, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   LABORDE, Judge.

This is a petitory action involving a three arpent tract of woodland situated in Lafayette Parish, Louisiana. The trial court, without written reasons, rendered judgment recognizing plaintiff, J. Larry Bras-seaux, as owner of the disputed tract.

On appeal, defendant, Lawless J. Reaux, argues: 1) that plaintiff failed to prove his title good as against the world, and 2) that the trial court judgment fails to sufficiently describe the immovable property as required by law.

Plaintiff answers the appeal and requests damages for a frivolous appeal.

We affirm the decision of the trial court and we deny damages for a frivolous appeal.

BURDEN OF PROOF

Plaintiff in a petitory action must prove his title to the property in question. His burden varies depending upon whether the defendant is in or out of possession of the disputed property; the burden being more onerous when the defendant is in possession. LSA-C.C.P. art. 3653. On appeal, defendant argues that because plaintiff alleged he (plaintiff) was not in possession of the wooded tract and defendant was, plaintiff is required to meet the more stringent burden of proof of title good as against the world.

Defendant’s contention lacks merit. In his answer and in his testimony at trial, defendant denied he was in possession of the disputed tract. Since neither plaintiff nor defendant is in possession, plaintiff need only prove a “better title” than defendant to prevail. LSA-C.C.P. art. 3653. The overriding issue presented, therefore, is whether plaintiff proved a “better title” to the subject property than did defendant.

PLAINTIFF’S TITLE

At the trial, plaintiff introduced the following record evidence of his title. On August 5, 1918, Gustave Mouton sold to Valery Breaux the following described property:

“A certain tract of land situated in the Parish of Lafayette in the third ward thereof on the east side of Bayou Vermilion, containing three superficial arpents, bounded North by land Succession or heirs of Simon Breaux, South by land of heirs of Rosemond Benoit, east by land of Nickerson & Judice, and West by land of Mrs. Alcide Guidroz.”

On December 2, 1957, Valery Breaux sold the same tract, with essentially the same description, to Paul D. Mine who on December 4, 1963, sold the tract to plaintiff’s ancestor in title, Pierre A. Judice. Plaintiff purchased the tract from Pierre A. Judice on August 17, 1965.

In support of his chain of title, plaintiff offered tax statements showing assessment for and payment of taxes on the subject property by him and by several of his ancestors in title.

In addition to claiming ownership by record title, plaintiff claims ownership of the disputed tract by acquisitive prescription of ten years. LSA-C.C. art. 3479.

The evidence in support of this claim shows a 1965 deed from Pierre A. Judice to Larry Brasseaux which deed describes the three arpent tract and appears sufficient to transfer ownership of the described property. There is nothing in the record to contradict that when plaintiff purchased the property in 1965, he reasonably believed in good faith that Mr. Judice had good title. Shortly after the purchase, plaintiff exercised possession by using the wooded area for recreational purposes, by granting mortgages on it and, as mentioned above, by paying the taxes on it. Under this evidence, by 1965 plaintiff established corporeal possession of the disputed tract and this possession was continued by further acts of both corporeal and civil possession down to the time this lawsuit was filed.

We conclude that plaintiff has shown some title or some grounds for claiming ownership of the disputed tract. It now becomes necessary to inquire into defendant’s title.

DEFENDANT’S TITLE

Defendant testified that he owned property in the front, the right and in the back of the disputed tract but added that his (defendant’s) property is clearly defined and surveyed. Defendant further testified that he does not claim to own the disputed tract nor has he occupied or possessed it.

Our review of the record convinces us that defendant has not seriously argued he has title to the disputed tract. Instead, he chose to attack plaintiff’s chain of title. This he did by arguing that the description in the links of plaintiff’s title do not describe the property adequately enough in order to locate it. In addition, he claims plaintiff offered no reference to any survey, plat or measurement. Hence, he concludes, plaintiff has failed to prove his title.

While perhaps plaintiff has not shown a perfect title, he has shown a descriptive title to the disputed tract going back to 1918. The property is definitely shown to be in the third ward of Lafayette Parish and to contain three arpents. The names of the landowners on three sides of the property and the Vermilion Bayou on the fourth side are given in description of the property-

In addition, there was testimony demonstrating that the property can be located. Plaintiff testified that he had been on the property several times. He stated that he went to the property and that it was fenced on three sides. His testimony generally shows that he is familiar with the location and dimensions of the property.

Mr. Pierre A. Judice, Jr., plaintiff’s vendor, also testified that he knew the location of the property. He stated that he knows what surveyor’s stakes look like and that there were surveyor’s stakes on the property. He further stated that he measured the property with tape using the stakes as points of reference. It is obvious that he, too, was familiar with the property and its location.

Mr. Louis J. Breaux, son of Valery Breaux, an ancestor in title of plaintiff, testified that he had been on the property about 25 years ago while his father owned it. He stated that once he had crossed the Vermilion Bayou he could find the property and that the bayou would be crossed at Gloria Switch Road whereupon “you take a left and you go just a short piece and you take a right and you have to walk.” He stated that he was familiar with the amount of land contained within an arpent and that there was no doubt in his mind that the property in question contained three arpents.

In conclusion, we hold that defendant has failed to show that he was in possession, thus requiring of plaintiff only that he prove a better title than defendant. Presumably, the trial judge considered and compared the respective titles proved by plaintiff and by defendant and determined that plaintiff had proved the “better title.” LSA-C.C.P. art. 3653. We find no manifest error in this conclusion.

Defendant further argues that the judgment should be reversed and set aside because it fails to sufficiently describe the immovable property as required by Code of Civil Procedure Articles 1919 and 2089.

The purpose of the above articles is to insure that the successful litigant and the official charged with the execution of the judgment will proceed with absolute certainty against the actual property involved in the litigation. Based on the reasoning advanced above, we find defendant’s argument is without merit.

Plaintiff asks for damages asserting that defendant’s appeal is frivolous. Article 2164 of the C.C.P. states:

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

In a recent case, Moity v. Busch, 368 So.2d 1134 (La.App. 3rd Cir. 1979), citing approvingly Coleman Oldsmobile, Inc. v. Arthur Cobb, 366 So.2d 944 (La.App. 1st Cir. 1978), and Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977) we stated:

“Article 2164 of the Code of Civil Procedure authorized a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed. Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates, even though the appeal lacks serious merit. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La. App. 1st Cir. 1973), Conques v. Hardy, 337 So.2d 627 (La.App. 3rd Cir. 1976), and Franklin v. Franklin, 338 So.2d 1199 (La. App. 3rd Cir. 1976).” (348 So.2d at 741).

Although the defendant’s position on appeal is untenable, it is our opinion that it is not frivolous.

For the foregoing reasons, the judgment of the trial court recognizing plaintiff as owner of the disputed tract is affirmed. The request for damages for a frivolous appeal is denied. Costs of appeal are assessed against the defendant, Lawless J. Reaux.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 3653 provides:
      “To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
      (1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
      (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

      .Louisiana Civil Code Article 3479 provides:
      “To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
      1. Good faith on the part of the possessor.
      2. A title which shall be legal, and sufficient to transfer the property.
      3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
      4. And finally an object which may be acquired by prescription.”

      .The Louisiana Supreme Court in Snelling v. Adair, 196 La. 624, 199 So. 782 (1940), recognized that if the property intended to be conveyed can be ascertained with certainty by the aid of admissible extrinsic evidence which can identify and locate the property, a just title for purposes of ten years acquisitive prescription exists. The fact that property is described as being bounded on the various sides by the estate of another can suffice in this regard.

      . Louisiana Code of Civil Procedure Article 1919 provides:
      “All final judgments which affect title to immovable property shall describe the immovable property affected with particularity.
      This article does not apply to judgments in succession proceedings recognizing heirs or legatees and sending them into possession.”

      . Louisiana Code of Civil Procedure Article 2089 provides:
      “All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.”