text:
    PIKE BURDEN PRINTING, INC., In Liquidation v. PIKE BURDEN, INC. et al.
    No. 14050.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Donald S. Zuber, Rufus D. Hayes, Baton Rouge, counsel for plaintiff-appellee Pike Burden Printing, Inc., in liquidation.
    Chester Hugh Boyd, Baton Rouge, counsel for defendants-appellants Eldren P. Nal-ley, William R. Bell and Pike Burden, Inc.
    James D. Caldwell, Baton Rouge, counsel for third party defendant-appellant Ran-some and Associates, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for the unpaid balance on a promissory note. The corporate maker, Pike Burden, Inc., one of the defendants, was discharged in bankruptcy soon after this suit was filed. However, judgment was rendered in favor of B. B. Saxon, as liquidator of Pike Burden Printing, Inc., and against the two other defendants, El-dren P. Nalley and William R. Bell, who personally endorsed and guaranteed payment of the note. The trial court also rendered judgment on Nalley and Bell’s third party demand against Ransome and Associates, Inc., the company which owned all the stock of Pike Burden, Inc. at the time of trial. From these adverse judgments, Nalley and Bell, and Ransome and Associates, perfected these appeals.

Nalley and Bell’s main contention on appeal is that their obligations as endorsers/guarantors on Pike Burden, Inc.’s note were discharged by a novation under which Ransome and Associates agreed to pay their personal obligations. Ransome claims it never assumed Nalley and Bell’s obligations on the note and contends further that a shareholder cannot be held liable for the debt of the corporation.

THE FACTS

On August 1, 1973, an agreement of sale and chattel mortgage was executed between Pike Burden Printing, Inc. (PBPI), seller, and Pike Burden, Inc. (PBI), buyer, wherein the assets and business of PBPI, a Baton Rouge printing establishment, were sold to PBI. Although their names were similar, the two corporations were separate and distinct legal entities, each having the authority to issue stock. PBPI was represented by its sole shareholder, Bernard B. Saxon, Sr. (Saxon). PBI was represented by Nalley and Bell, who were president and secretary, respectively, of PBI. The sale price of the assets and business was $255,-000.00. Of this sum, the seller received $71,400.00 in cash; a non-interest bearing note executed by PBI in the sum of $21,-600.00 payable on or before July 31, 1974, but not before January 1, 1974; and an interest-bearing promissory note in the amount of $162,000.00 payable in monthly installments beginning January 1, 1974. -

In connection with the sale, on August 7, 1973, Nalley and Bell executed a Guaranty Agreement. Under the terms of the Guaranty Agreement, Nalley and Bell personally guaranteed payment of the first one-half of the purchase price of the PBPI assets, a sum of $127,500.00. They also agreed that the second half of the price would be secured by a pledge of all the stock of PBI. The stock was to be pledged when the first half of the purchase price had been paid.

On August 1, 1974, PBI, represented by Nalley, executed a new promissory note in favor of PBPI in the sum of $29,191.68. Nalley and Bell signed the back of the note in blank under the words: “Personally Endorsed 'and Guaranteed By.” This is the note at issue in this suit. The new note was given in payment of the $21,600.00 non-interest bearing note executed in connection with the sale and for other obligations PBI owed Saxon. In return for the new note, Saxon marked the $21,600.00 note “paid” and gave it to Nalley and Bell. The $21,-600.00 figure was credited towards the purchase price of PBPI’s assets.

The testimony was conflicting as to why the new note was issued. Nalley and Bell claim that Saxon did not want the $21,-600.00 note paid in cash because of the tax problems the additional income would cause him that year. 'Saxon contended that PBI had financial problems and could not pay the $21,600.00 note, and that the second note represented a new loan to PBI, Nalley and Bell, separate and apart from the original sale and transaction.

Nalley and Bell made payments timely on the $29,191.68 note until around April, 1976, when they sold their shares of stock in PBI to First Republic Life Insurance Company (First Republic). When Nalley and Bell sold their stock to First Republic, both were under the impression that all the obligations of PBI, as well as their personal obligations, were assumed by First Republic, and that they were discharged from any further liability to Saxon and PBPI.

On August 31, 1976, stock held by other employees of PBI was acquired by Ransome and Associates, Inc. (Ransome) and transferred the same date to First Republic, which at that point owned all the stock of PBI. On December 31, 1976, all outstanding shares of PBI stock were sold to Ran-some by First Republic.

During this period of stock transfers, the note had fallen in arrears. Threatened with possible legal action, PBI represented by its chairman of the board, Al J. Ran-some, entered into an agreement with PBPI, represented by Saxon, on January 3, 1977. Under this agreement, unless all of the stock of PBI was pledged to PBPI in accordance with Nalley and Bell’s Guaranty Agreement of August 7,1973, suit would be brought on the note against PBI. The agreement also stated that the PBI stock was to be pledged “as additional security and in lieu of the personal guarantee of E. P. Nalley and William R. Bell.. .. ”

On January 11, 1977, a collateral pledge of stock was executed by Al J. Ransome, who was also chairman of the board of Ransome and Associates, Inc. At the time the collateral pledge of stock was executed, the balance due on the purchase of PBPI business and assets had fallen below the one-half guaranteed by Nalley and Bell.

The January 11,1977, collateral pledge of stock makes specific mention of the $29,-191.68 note as one of the notes issued in connection with the purchase and assets of PBPI by PBI. The pledge agreement states that Ransome “takes cognizance” of the sale of PBPI to PBI “and it further takes cognizance of two notes executed in connection therewith, one being in the original amount of One Hundred Sixty-Two Thousand and no/100 ($162,000.00) Dollars and one being in the original amount of Twenty-Nine Thousand One Hundred Ninety-One and 68/100 ($29,191.68) Dollars.” Additionally, the pledge document states that Ransome and Associates “further specifically did assume the obligation of E. P. Nalley and William R. Bell in connection with a commitment to pledge stock dated Baton Rouge, Louisiana, August 7, 1973 .... ” The stock pledge was made “in order to furnish additional collateral and in order to relieve E. P. Nalley and William R. Bell of their obligations as guarantors” under the August 7, 1973 Guaranty Agreement.

When PBI failed to pay the May 1, 1977 installment on the note, Saxon, as liquidator of PBPI, instituted this suit against PBI, Nalley and Bell, in solido, for the balance of $14,918.18, interest and attorney’s fees. In the same month, PBI entered a voluntary petition for bankruptcy. The note sued upon herein was entered as an unsecured claim by PBPI in the amount of $19,020.68, for principal, interest and attorney’s fees. Under the amended plan of arrangement, PBPI received a disbursement of $3,804.13, which was credited to principal and interest. PBI was discharged.

On May 17, 1978, all the assets of PBI were sold to RPW Printing, a domestic partnership. Ransome and Associates remained the sole shareholder of PBI. On September 17, 1979, a dation en paiement was executed between PBPI and PBI and RPW Printing, whereby the assets of the printing business were returned to PBPI. In return, the $162,000.00 note, which was part of the original purchase price, was marked paid and returned to PBI. The stock which was pledged by Ransome and Associates was also returned.

In connection with the collateral pledge of stock executed by Ransome and Associates, Nalley and Bell signed another Guaranty Agreement which stated in essence that the stock being pledged by Ransome and Associates represented all of the outstanding shares of capital stock of PBI. A1 J. Ransome was required to execute a similar personal guarantee. Nalley and Bell testified that the attorney for Saxon, Rufus Hayes, told them that the execution of the personal guarantee in connection with the pledge of stock was tantamount to a release of their personal guarantee under the note. Buttressing their testimony in this regard was the testimony of Al J. Ransome, who stated on the stand that the clear understanding between the parties when the stock was pledged was that Nalley and Bell would be let out of their personal obligations under the note. “When we walked out of Mr. Hayes’ office, we had delivered the stock and fulfilled the obligations and Bell and Nalley had no further connection with Pike Burden or B. B. Saxon. That was a clear understanding given to all parties,” Ransome testified. Ransome stated further, however, that he was not assuming the obligations of anyone. He said he pledged the stock to fulfill the commitment that arose out of the original sale of the PBPI business and assets to PBI.

THE TRIAL COURT’S DECISION

In written reasons for judgment, the trial court found that the collateral pledge of stock executed by Ransome and Associates, Inc. on January 11, 1977, was not a novation. The pledge agreement “related as per its terms and language strictly to the August 1973 sale. It is true that the sum of $29,191.68 mentioned therein is the amount of [the new note guaranteed and endorsed by Nalley and Bell]. However, the note which it replaced had been marked paid and returned to defendants many years earlier, and the mention of this amount does not destroy the obvious character of this instrument, which was to furnish additional collateral to plaintiff in connection with the unpaid balance due it. This pledge was required by the 1973 sale agreement. Defendants received ample consideration for [the new note] in the form of forebearance. They personally endorsed and guaranteed this note. Nothing contained in the . .. collateral pledge destroyed this guarantee. It is argued that this collateral pledge document was prepared by plaintiff’s attorney. That fact is not denied. But that does not create or destroy obligations that were not addressed in the document. Therein plaintiff released no one. Defendants were not parties. The document only was to help facilitate the pledge of stock which was required by [the original sales agreement].”

The trial court cast Nalley and Bell for the principal balance of $12,456.45, together with interest, attorney’s fees and costs. On Nalley and Bell’s third party demand, the trial court held that Ransome and Associates, Inc. assumed Nalley and Bell’s obligations when it purchased the assets and debts of PBI. One of the liabilities was the note sued upon in this case, and the trial court therefore held Ransome liable to the defendants on the third party demand.

SPECIFICATIONS OF ERRORS

Nalley and Bell claim on appeal that the trial court erred in failing to find that a novation of their personal obligations on the note occurred in the course of the various transactions related to the collateral pledge of stock by Ransome. Ransome claims the trial court erred in finding that Ransome assumed the liabilities of PBI when it purchased the PBI stock and in finding that a sole shareholder was liable for a corporate debt.

NALLEY, BELL AND NOVATION

The pertinent provisions of the Louisiana Civil Code dealing with novation under the facts of this case are Articles 2185, 2189(2), 2190, 2191 and 2192. These Articles provide:

“Art. 2185. Novation is a contract, consisting of two stipulations: one to extinguish an existing obligation, the other to substitute a new one in its place.
“Art. 2189. Novation takes place in three ways:
“2. When a new debtor is substituted to the old one, who is discharged by the creditor.
“Art. 2190. Novation can be made only by persons capable of contracting; it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.
“Art. 2191. Novation by the substitution of a new debtor may take place without the concurrence of the former debtor.
“Art. 2192. The delegation, by which a debtor gives to the creditor another debt- or who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.”

Although the code articles state that novation is not presumed to occur and that a creditor must expressly declare his intent to discharge his debtor, our courts have held that a debtor may be discharged where the intent of the creditor to novate is clearly indicated. Isaacs v. Van Hoose, 171 La. 676, 131 So. 845 (1930); Strunk Chain Saws, Inc. v. C. W. Williams, 111 So.2d 195 (La.App. 2nd Cir. 1959). Novation may also occur where the intent of the parties, the character of the transaction, the facts and circumstances surrounding the transaction and the terms of the agreement itself reveal a desire to effect a novation. Placid Oil Company v. Taylor, 325 So.2d 313 (La.App. 3rd Cir. 1975), writ refused 329 So.2d 455 (La.1976); Crescent Cigarette Vending Corporation v. Toca, 271 So.2d 53 (La.App. 4th Cir. 1972); Smith, Howard and McCoy, Inc. v. Acme General Contractors, Inc., 152 So.2d 596 (La.App. 2nd Cir. 1963), cert. denied, 244 La. 663, 153 So.2d 881 (1963); but see Louisiana Materials Company v. Turcich, 256 So.2d 719 (La.App. 4th Cir. 1972); Harepour v. A. C. Collins Ford of New Orleans, Inc., 363 So.2d 1261 (La.App. 4th Cir. 1978).

Even if a creditor does not expressly declare in a written act that his original debtor is to be released, a novation may nonetheless be found if all the circumstances surrounding the transaction show that a novation was clearly intended by the creditor. The burden of proving novation, however, falls on the party who seeks its protection. This is so because a novation results in the discharge of a debtor, and the court will not presume that a creditor in the course of his business affairs released a debtor. Art. 2190. Creditors are not in the business of releasing debtors who have not paid. A debtor must present convincing proof to show that his creditor has voluntarily released him from his obligation.

While the testimony at trial shows that Nalley and Bell may have believed they had been discharged from their personal obligations under the notes sued upon herein, we must hold that the two endorsers failed to bring forth convincing proof that Saxon intended to novate their debts. The various written documents filed in evidence contained no express declaration of novation. In the documents evidencing the collateral pledge of stock by Ransome and Associates, there is nothing to show that Nalley and Bell were to be relieved of their personal obligations on the note. Even though the collateral pledge mentions the $29,191.68 note, the provisions of the pledge are clear to the effect that the pledge was made under the terms of the original sales agreement and was made to relieve Nalley and Bell of their obligations thereunder. If anything, the collateral pledge represented an attempt by Saxon to obtain additional security for the sums due PBPI under the 1973 sale of business and assets.

Nalley and Bell testified that they thought that their personal obligations were extinguished when they executed affidavits stating that all outstanding shares of PBI had been pledged by Ransome and Associates. Had all the parties intended for Nalley and Bell’s personal endorsements/guarantees under the note to be extinguished, language to show this intention could have easily been inserted in the documents. But it was not. The testimony concerning the other circumstances surrounding the transaction was ambiguous as to whether a novation was intended. Nal-ley and Bell rely heavily on the testimony of A1 Ransome to support their position. Read objectively in its entirety, Ransome’s testimony confirms what the parties put in writing in the collateral pledge agreements. The stock pledge was made a part of the original sales transaction to relieve Nalley and Bell of their personal guarantees for one-half of the purchase price of PBPI. Saxon never relieved them of their personal obligations on the note. We therefore affirm the trial court’s judgment against Nal-ley and Bell.

RANSOME AND ASSOCIATES

The trial court judgment casting Ran-some and Associates on the third party demand was apparently based upon the belief that the corporate entity called Ransome and Associates was responsible for the obligations of the corporate entity called Pike Burden, Inc. or that Ransome and Associates had assumed the personal obligations of Nalley and Bell. While Ransome and Associates was admittedly the sole shareholder of Pike Burden, Inc., evidence in the record fails to show that Ransome and Associates was liable for either the debts of Pike Burden, Inc. or the debts of Nalley and Bell individually. Although Al J. Ransome testified that it was his understanding that Ransome and Associates had purchased all the stock, assets and obligations of PBI, the fact remains that the only thing Ransome and Associates actually purchased was the outstanding stock of PBI. Ransome and Associates’ only connection with PBI, albeit a strong connection, was its position as sole shareholder.

Unless fraud or disregard of the corporate entity gives rise to the piercing of the corporate veil, a shareholder or shareholders of a corporation are generally not liable for the corporate debts. La.R.S. 12:93(B). When PBI was discharged in bankruptcy its obligation to PBPI was likewise discharged. We know of no law which would hold the sole shareholder liable for the outstanding debt of a corporation which is discharged in bankruptcy, unless fraud is involved, unless the corporate entity has been disregarded or unless the shareholder has personally guaranteed payment of the corporate debt. None of these has been shown to exist in this case.

Ransome and Associates is certainly not liable on the note itself, La.R.S. 10:3— 401, and there has been no showing that Ransome and Associates in any way became liable to Nalley and Bell by virtue of any agreements outside of the note. We therefore reverse the trial court’s judgment casting Ransome and Associates on the third party demand.

Therefore, for the above and foregoing reasons, the judgment of the trial court holding Ransome and Associates on the third party demand is reversed, and in all other respects the judgment of the trial court is affirmed. All costs, both in the trial court and in this court, are taxed to defendants — Eldren P. Nalley and William R. Bell.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Donald THORESON et al. v. STATE DEPARTMENT OF CIVIL SERVICE.
    No. 14052.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Richard Cadwallader and John W. Fich-tel, III, Baton Rouge, for appellants.
    R. Gray Sexton, Gen. Counsel, Dept, of Civil Service, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed dismissal by the State Civil Service Commission of their plea for relief.

The issue is jurisdiction.

We affirm in part, reverse in part and remand.

Plaintiffs, fifty-nine individuals employed by the Department of Transportation and Development (Department) as Engineering Specialists III Class, are aggrieved by an inequitable implementation of the Uniform Pay Plan. In an effort to equalize the pay of Engineering Specialists III Class with Engineers III Class, the State Department of Civil Service made provision in the pay plan on August 2, 1975, for equalization. The plan, along with the general increase for all classified employees, passed by the 1975 Legislature, was only partially implemented because of insufficient funds and of salary ceilings imposed by the governor and legislature. Although all Engineering Specialists III Class in steps 5-10 of the original classification received pay increases, they were placed on a lower step in the new pay range. Consequently, persons from lower or other classifications promoted to Engineer Specialist III Class after August 2, 1975 can advance in step beyond those with more seniority. Plaintiffs petitioned the Civil Service Commission to investigate the matter, to order immediate step increases for those employees who had lost ranking in the implementation of the pay plan, and to revise its rules. The Civil Service Commission dismissed plaintiffs’ petition because it believed it was without jurisdiction to entertain the request or grant the relief sought.

First, the Department of Civil Service contends that the Civil Service Commission is without jurisdiction to hear the appeal because that jurisdiction is limited to disciplinary, removal and discriminatory actions. The Civil Service Amendment to the 1921 Constitution gave the Commission “the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases.” The 1974 Constitution in Art. 10, § 8 gives the right of appeal to an employee subjected to disciplinary action or to discrimination because of political or religious beliefs, sex or race. Section 12 of the same article gives the Commission the “exclusive power and authority to hear and decide all removal and disciplinary cases,

Unquestionably, there is a decided change in the grant of power. No citation of any proof that the Convention deliberately curtailed the power of the Commission to hear appeals has been furnished us. Our examination of the proceedings of the Convention has revealed no discussion of any such deliberate intention. However, the fact remains that the wording is different. We must give effect to the logical meaning of the terms. We therefore hold that the judicial jurisdiction of the Commission is restricted to removal, disciplinary and discrimination cases.

However, that answers only part of the question before us. The Commission has in addition to its judicial jurisdiction, both legislative and executive power and authority. We find no limitation in these grants that require the dismissal of plaintiffs’ appeal to the Commission.

The Commission says that the thrust of plaintiffs’ request is that the Commission “order” the employer to do something not presently required by the Commission’s rules or to amend its existing rules to authorize something that is presently prohibited by the rules. That may be, but that is not a matter of power and authority to consider the questions. The Commission may very well elect not to order something not presently required and to refuse to amend its rules so as to authorize something now prohibited but that is a matter of discretion not of power and authority.

The Commission in its decision adverted to its legislative function being immune to an administrative or judicial mandate to structure its rules in any particular fashion. We do not by this decision intend to instruct the Commission to adopt any specified rule. We are merely holding that it does have the power and authority to entertain appeals to exercise its executive and legislative functions. Whether it decides in its discretion to do so is another question we do not have before us at the present time.

Counsel for the Department argues that the Commission has already exercised that discretion. We do not so interpret the Commission’s holding that it is “without jurisdiction to entertain the request or grant the relief sought by the appellants, the ‘Petition for Correction’.”

For these reasons the case is remanded to the State Civil Service Commission for further handling in accordance with these reasons. Costs in the amount of $25.00 are assessed against the State Department of Civil Service under authority of LSA-R.S. 13:5112.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . LSA-Const. Article 10, § 10:
      “(A) Rules. (1) Powers. Each Commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety. Nothing herein shall prevent the legislature from enacting laws supplementing these uniform pay plans for sworn, commissioned law enforcement officers of the Division of State Police, Department of Public Safety and regularly commissioned officers of the Enforcement Division of the Department of Wildlife and Fisheries.

      (4) Effect. Rules adopted pursuant hereto shall have the effect of law and be published and made available to the public. Each commission may impose‘penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.
      (B) Investigations. Each commission may investigate violations of this Part and the rules, statutes, or ordinances adopted pursuant hereto.
      (C) Wages and Hours. Any rule or determination affecting wages or hours shall have the effect of law and become effective only after approval by the governor or the appropriate governing authority.”


author: LOTTINGER, Judge.

text:
    Dolores BROSSETTE v. Wayne BROSSETTE.
    No. 14054.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Edward T. Diaz, Golden Meadow, for plaintiff and defendant in rule-appellee Dolores Brossette.
    Larry P. Boudreaux, Thibodaux, for defendant and plaintiff in rule-appellant Wayne Brossette.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The plaintiff-wife obtained a judgment against the defendant-husband for divorce based on adultery and the trial court awarded the wife $375.00 per month in permanent alimony. The sole issue on appeal is whether the permanent alimony award is proper.- The husband claims that the wife is capable of supporting herself and, alternatively, that the judgment should be limited to a six month period.

Plaintiff and defendant were married on November 2, 1968, and two children were born of the marriage, Darby Michael, six, and Kristopher Murry, four. In earlier proceedings, the parties entered into a consent judgment on the custody issue, agreeing that the wife would have custody of the children. The husband also stipulated that he would pay $150.00 per month per child in child support and would pay reasonable medical, dental, and drug bills, as well as maintain his wife and children on his hospitalization insurance policy.

The husband’s main contention on appeal is that his wife is capable of working in a beauty parlor or as a real estate salesperson and that she should be required to support herself. The wife, on the other hand, claims that she would have to go back to beauty school to learn the most recent developments and that the cost of returning to school would be prohibitive because of baby sitting expenses. The record shows that the husband earns about $23,000.00 to $25,000.00 per year gross.

La.C.C. art. 160 provides:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and the amount of alimony after the divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of the children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
“In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
“This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

Under the provisions of the above quoted article, the trial court must look at the totality of the circumstances concerning both parties in deciding whether alimony is due and the amount thereof. The husband points particularly to the second paragraph of Article 160 which lists earning capability as one of the factors to be considered in awarding alimony. We find that the trial court could have looked at Mrs. Brossette’s earning capability and could have decided, even in light of her ability to do beauty parlor or real estate work, that she was entitled to permanent alimony based upon some of the other enumerated factors in Article 160, such as the effect of custody of the children upon her earning capacity and her obligations to support and care for the dependent children.

The husband’s alternative contention that the alimony should be payable for only six months is based on the time required for plaintiff’s refresher schooling and is without merit. The husband is entitled at any time to seek a reduction of the alimony payments when circumstances change.

In cases of this nature, a trial court is given much discretion in determining the amount of alimony to be paid. Unless he has abused his discretion, the appellate court will generally not change the award on appeal. From the totality of the circumstances, we cannot say that the trial judge abused his discretion.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at the defendant’s cost.

AFFIRMED.


text:
    Althamus PELLERIN and Gladys Pellerin v. CASHWAY PHARMACY OF FRANKLIN, INC., et al.
    No. 14055.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Steven P. Shea, New Iberia, counsel for plaintiffs.
    St. Paul Bourgeois, IV, Allen, Gooch & Bourgeois, Lafayette, counsel for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed from a judgment sustaining an exception of no cause of action in favor of defendants, Glenn Tanner and Tidelands Adjustment Service, Inc.

The issues are sufficiency of the allegations in plaintiffs’ petition and the court’s dismissal of plaintiffs’ demand.

We reverse and remand.

Plaintiff, Gladys Pellerin, sustained injuries when she fell on defendant Cashway Pharmacy’s premises on May 23, 1978. Glenn Tanner, an agent for Tidelands Adjustment Service, Inc. (Tidelands) discussed a compromise settlement with her. She alleges he promised the damages arising out of the accident would be compensated when she was discharged from the doctor’s care. In August, 1979, after her release by her doctor, Mr. Tanner informed her that the claim had prescribed and she would receive no settlement. Plaintiff sued Cashway, Tanner and Tidelands, in solido, for her damages. The court maintained an exception of no cause of action filed by Tanner and Tidelands.

The peremptory exception of no cause of action tests the legal sufficiency of the petition and is triable on the face of the papers. LSA-C.C.P. 931; Haskins v. Clary, 346 So.2d 193 (La.1977).

Plaintiffs’ petition alleges in part:

“V.
Subsequent to the accident hereinabove referred to, petitioner was contacted by Mr. Glenn Tanner and Tidelands Adjustment Service, Inc. in connection with settlement negotiations in order to have said claim settled against Cashway Pharmacy of Franklin, Inc.
VI.
On or about the 12th day of April, 1979, Mr. Glenn Tanner, employee of Tidelands Adjustment Service, Inc. interviewed the petitioner, Gladys Pellerin and informed her that as soon as she would be discharged from her doctor’s care, all of her damages arising out of this accident would be paid in full, and said Glenn Tanner informed petitioner, Gladys Pelle-rin, not to contact said adjustment service until she was discharged from her doctor’s care.
VII.
On or about the 23rd day of August, 1979, petitioner, Gladys Pellerin was discharged from her doctor’s care and said petitioner thereafter contacted Mr. Glenn Tanner and Tidelands Adjustment Service, Inc. in order to complete the settlement of her claim against Cashway Pharmacy of Franklin, Inc., all as per instructions given by Mr. Glenn Tanner on the 12th day of April, 1979.
VIII.
Upon petitioner’s contact with Tidelands Adjustment Service, Inc. and Glenn Tanner subsequent to her discharge from her doctor’s care, defendants, Tidelands Adjustment Service, Inc. and Glenn Tanner informed petitioner, Gladys Pellerin, her claim had prescribed and that she would receive no settlement in this matter.
IX.
Due to the actions taken by Tidelands Adjustment Service, Inc. and Glenn Tanner, petitioners aver that prescription was interrupted under Civil Code Article 3520.
X.
Due to the actions taken by defendants, Tidelands Adjustment Service, Inc. and Glenn Tanner, petitioners aver that said defendants are liable, in solido, with Cashway Pharmacy of Franklin, Inc. for all damages incurred by petitioners arising out of the claim in question.”

As a general rule, there is no relationship existing between a claimant and the insurance adjuster on which a duty to inform of prescription can be based. Green v. Grain Dealers Mutual Insurance Company, 144 So.2d 685 (La.App. 4th Cir. 1962); Williams v. Red Barn Chemicals, Inc., 188 So.2d 78 (La.App. 1st Cir. 1966). However, there may be circumstances in which the adjuster may be said to have undertaken such a duty. Examples may include the relative education of the parties, the diligence of the claimant in seeking the facts, the actual or apparent authority of the adjuster, the content of his promises to the claimants, misrepresentation or fraud. Penn Mut. Life Ins. Co. v. Nunnery, 176 Miss. 197, 167 So. 416 (1936). Plaintiffs should have been given the opportunity to amend their petition to allege such a breach of duty by defendants Glenn Tanner and Tidelands Adjustment Service, Inc. LSA-C. C.P. 934.

For the above reasons, the judgment of the trial court is reversed and the case remanded with instructions to allow plaintiffs an opportunity to amend their petition. The cost of the appeal is cast against appel-lees. All other costs shall await the final outcome.

REVERSED AND REMANDED.

      . LSA-C.C.P. 931:
      “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
      When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff.
      No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

      . LSA-C.C.P. 934:
      “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”


text:
    Nancy J. LEE, Individually and as Natural Tutrix of Tammy Lee and Wilson Lee v. CHURCH’S FRIED CHICKEN, INC.
    No. 14057.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff/appellant.
    Ben L. Guelfo, Baton Rouge, for defendant/appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit in redhibition filed by Nancy J. Lee, individually and as natural tutrix of Tammy Lee and Wilson Lee, for the return of the $6.49 purchase price paid for allegedly contaminated chicken purchased from the defendant. Plaintiff also seeks damages and attorney’s fees. From a judgment in favor of defendant finding that plaintiff had not established by a preponderance of the evidence that the physical discomfort she experienced was caused by the chicken sold by the defendant,, plaintiff has appealed.

The record shows that on October 22, 1979, at approximately 6:00 p. m., Nancy Lee purchased a 20-piece bucket of fried chicken for $6.49 from the defendant. The chicken was taken home where she, her two minor children, her common law husband and her uncle commenced to eat it. After she had eaten one piece of chicken and proceeded to the second, she complained that the second piece was no good — it had a nasty taste. The two children also complained of the chicken. Plaintiff, Nancy Lee, began feeling nauseated and vomited. She was taken to Earl K. Long Hospital where she again vomited. She was advised to return home and place the chicken in the freezer.

The two young children complained of stomach aches but never vomited. Neither her common law husband nor her uncle complained of feeling bad. A neighbor testified that the chicken smelled tangy. The common law husband testified that the chicken smelled rotten, and there appeared to be worms at the bottom of the box.

It is apparent from the record that the remaining chicken was brought into the courtroom, though it was never offered into evidence, nor was any examination ever made of the chicken by any expert.

The day before the chicken episode, Nancy Lee was taken to Earl K. Long Hospital with an apparent overdose of high blood pressure medicine. At the trial she had a hard time remembering whether the overdose trip to the hospital was the day before the chicken episode or not.

In McCauley v. Manda Brothers Provisions Co., 202 So.2d 492 (La.App. 1st Cir. 1967), Judge Ellis as the organ of the court said:

“Louisiana cases relative to the liability of a manufacturer or processor of food products fall into a number of general categories. Probably the largest category of these cases cover food products which are sold in sealed containers, such as capped bottles or cans.' [Citations omitted].
“A second category of cases are those in which the food product is prepared and sold for public consumption in restaurants, or across the counter in bakeries, confectionaries, and similar places. These cases include the well known case of Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 40 L.R.A., N.S., 480 (1911); Lee v. Smith, 168 So. 727 (La. App. 1 Cir. 1936); MacLehan v. Loft Candy Stores, 172 So. 367 (La.App.Orl.1937); Kelly v. Ouachita Dairy Dealers Cooperative Assn., 175 So. 499 (La.App. 2 Cir. 1937); Ogden v. Rosedale Inn, 189 So. 162 (La.App.Orl.1939); Palmer v. Rosedale Catering Co., 195 So. 859 (La.App.Orl. 1940); McAvin v. Morrison Cafeteria, 85 So.2d 63 (La.App.1956); Gilbert v. John Gendusa Bakery Inc., 144 So.2d 760 (La. App. 4 Cir. 1962); and Love v. New Amsterdam Casualty Company, 175 So.2d 398 (La.App. 4 Cir. 1965).
“Liability in these cases is based on the proposition that the manufacturer-seller of unwholesome food is presumed to know its condition and is liable to the purchaser thereof who is made ill because of its consumption. As stated in the McAvin case, supra.
‘This case involves the principle of law that the seller of foodstuffs is bound to warrant their wholesomeness and that every one should know of the qualities of the things he manufactures and sells and that the lack of such knowledge is imputed to him as a fault rendering him liable to the purchaser for any vices or defects of the things.’
“In these cases, the plaintiff carries the burden of showing that the food consumed was unwholesome or deleterious, that it was consumed, and that illness resulted therefrom.
“It would appear that the liability imposed by the Doyle case and the others cited is also one which is based in implied warranty, rather than tort, since there is no necessity for the plaintiff to show negligence on the part of the manufacturer or processor.
“The courts have never compelled a plaintiff to produce an actual analysis of the food consumed in order to establish its unwholesome condition. Rather, the courts have been willing to infer the deleterious nature of the food consumed from the circumstances surrounding the illness. In all of the cases in which there has been successful recovery, the plaintiff has shown that the food was consumed by him, and that no other food which might reasonably be assumed to have caused the illness had been consumed within a number of hours before or after the consumption of the suspect product. The plaintiff has also had medical opinion to the effect that it was probable that his illness was caused by the consumption of the particular product involved. In addition, the successful plaintiffs in the above cases have been able to show some other independent circumstance, which tends to prove his case. In the Doyle case, supra, for instance, it was shown that the plaintiff’s companion, who ate in the same place at the same time of the same products also became ill. In the MacLehan case, supra, the plaintiff partook of the same pie on two different occasions, and got sick on each occasion. In the McAvin case, supra, the plaintiff noticed that the shrimp salad involved had a bad odor and taste and ate only a small portion of it. In Ogden v. Rosedale Inn, supra, only those persons who consumed the suspect salad became ill. In the cases of Love v. New Amsterdam Casualty Company, supra, and Gilbert v. John Gendusa Bakery, Inc., supra, foreign substances were found in the food consumed.
“In this case, plaintiff showed that he had had nothing to eat on the day of his illness except the slice of coconut pie which he had for breakfast some six hours prior to his illness. He testified that he was feeling well until shortly after he consumed the hot sausage sandwich and a carton of milk. No proof has been offered by any party to this case relative to the unwholesomeness of the milk. His physician testified that in his opinion the attack of acute gastroenteritis suffered by plaintiff was caused by the ingestion of the hot sausage sandwich. He was prepared to prove, and did in fact proffer evidence to the effect that two other persons, who consumed sandwiches which were made at the same time and under the same conditions as that consumed by him suffered similar illnesses.”

In his written reasons for judgment the trial judge concluded that since other people had eaten from the same container of chicken, but none of them had gotten as sick as Nancy Wilson, she failed to prove her case by a preponderance of the evidence. Plaintiff argues that some chicken had been fried previously and was in the bottom of the chicken box, and the recently fried chicken was at the top. She claims she ate chicken from the bottom of the box and thus became ill. The record points out that the two young children complained of stomach cramps, but never became ill to the extent that they became nauseated. It is conceivable that the trial judge concluded that their stomach aches came about more from the discussion of the chicken and seeing their mother sick than from actually consuming any chicken. Considering that Nancy Wilson was the only one to become nauseated, and that she had been to the hospital the day before for a different illness, we must agree that the trial judge was correct in his finding that plaintiffs failed to prove their case by a preponderance of the evidence.

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

AFFIRMED.


text:
    Vernal Helen LEBOUEF v. John Roland LINER.
    No. 14059.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Lynn L. Lightfoot, Houma, counsel for plaintiff and appellant.
    Keith M. Whipple, Houma, counsel for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment of the trial court dismissing her suit to enforce a community property settlement, or, in the alternative, to have it annulled.

The issues are: the validity of an agreement contracted prior to divorce making child support partial consideration for the partition of the community and the validity of the settlement absent the clause.

We affirm.

Following a separation, plaintiff was awarded $250.00 per month as alimony pen-dente lite and child support. Thereafter, but prior to divorce, plaintiff and defendant entered into a community property settlement. Part of the consideration was the transfer of each party’s interest in some property to the other. Defendant gave to plaintiff a $5,000.00 promissory note payable at $50.00 per month. As additional consideration, defendant agreed to pay child support of $250.00 per month and to pay plaintiff an additional $5,000.00 in the event the family home was sold. Defendant paid only $125.00 per month on his child support obligation and failed to pay the promissory note. After plaintiff filed suit to enforce the settlement or in the alternative to have it nullified, defendant paid plaintiff $900.00 bringing the $50.00 per month obligation up to date. The trial court invalidated the child support clause of the agreement, but maintained the remainder of the settlement as based upon other substantial consideration. Upon finding defendant current on his promissory note obligation, he dismissed plaintiff’s suit.

Plaintiff claims the court erred in invalidating the child support clause. The law at the time of the agreement, May 24, 1977, prohibited a husband and wife contracting with each other except in limited situations. LSA-C.C. Arts. 1790 and 2446. Since the exceptions do not include a contract for a fixed amount of child support, we agree with the court that that portion of the community property agreement is a nullity which can be given no effect. Ward v. Ward, 339 So.2d 839 (La.1976).

Plaintiff next contends that if the clause is held invalid, the entire community property settlement should fall.

An illegal condition within a contract annuls the entire agreement only “to the extent to which the agreement depends on it.” LSA-C.C. Art. 1893, Plainol, Volume 2, Section 1269, p. 720; Morse v. J. Ray McDermott and Co., Inc., 344 So.2d 1353 (La.1977). Plaintiff offered no evidence to prove the community property settlement was primarily dependent upon the child support clause. The settlement itself states other consideration for the agreement. We find no error in the court’s determination.

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

AFFIRMED.

      . These articles read as follows at that time:
      LSA-C.C. Art. 1790:
      “Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.”
      LSA-C.C. Art. 2446:
      “A contract of sale, between husband and wife, can take place only in the three following cases:
      1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”

      . This finding does not affect plaintiff’s right to petition for an increase in her previous award for child support.

      . LSA-C.C. Art. 1893:
      “An obligation without a cause, or with a false or unlawful cause, can have no effect.”
      LSA-C.C. Art. 2031:
      Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.”


author: EDWARDS, Judge.

text:
    Raymond P. SCOTT, Lewis A. Bonfanti, Rev. Robert D. Thomas, Vincent S. Dimattia, Robert Parker, Alton E. Ingram, Charles McCue, Jr., Herbert Williams, Charles N. Scott, Mable C. Scott, Edward L. Daigne, Richard Nelson, Theodis White, Mrs. Theodis White, Mrs. Vera L. Scott, Rev. Frank R. Winder, Rev. Emanuel McFields and Mrs. Leola M. Young v. Woodrow W. “Woody” DUMAS, Mayor-President, George R. Dabbs, President-Pro-Tempore, Johnny Dykes, Carl Crane, Pearl George, Howard Marsellus, Tommy Neck, Dr. C. P. “Tony” Currie, Edgar Watts, Earl Day, Earl Harrison, Jewel J. Newman and Michael G. Roubique, all in their official capacity as Mayor-President of the City of Baton Rouge, Parish of East Baton Rouge, and as members of the City-Parish Council of the City of Baton Rouge, Parish of East Baton Rouge, State of Louisiana, and Ray W. Burgess as Director of the City-Parish Department of Public Works.
    No. 14061.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied April 27, 1981.

      J. D. DeBlieux, Baton Rouge, for plaintiffs-appellees, Raymond P. Scott, et al.
    Joseph F. Keogh, Asst. Parish Atty., Baton Rouge, for defendants-appellants, Woodrow W. “Woody” Dumas, Mayor President, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Woodrow W. “Woody” Dumas, Mayor-President of the City of Baton Rouge, Parish of East Baton Rouge, and thirteen other named defendant officials, appeal a trial court judgment enjoining them from doing any act which would lead to changing the name of East Boulevard in Baton Rouge under Parish Ordinance 5475 and City Ordinance 4209. We reverse and render.

As the result of a petition filed by Raymond P. Scott and seventeen other named plaintiffs, the trial court enjoined defendants from changing part of East Boulevard to Thomas H. Delpit Drive on the ground “that the name change was effected for purely political considerations” and to bring about harmony between two opposing political factions. In written reasons for judgment, the court stated “counsel for the defendants stipulated in argument that no governmental purpose was put forth as a basis for the name change. Under those circumstances, the validity of the ordinance cannot be sustained.”

A careful examination of the record shows that there was a valid purpose behind Ordinances 5475 and 4209 — to honor Thomas Henry Delpit for his contributions to the community. In fact, the trial judge himself elicited that purpose from Councilman Howard Marsellus, Jr., one of the defendants. Furthermore, defense counsel never stipulated that the ordinances had “no governmental purpose^)” Counsel merely stipulated that one witness, Charles McKuen, received a certain letter (P-1) from Councilman Marsellus. In that letter, Mr. Marsel-lus urged that the name change would both bring the community together and honor Thomas Delpit. Regardless of political motives, each of these reasons provides a valid governmental purpose for the proposed name change.

The ordinances in question were passed only after all the procedural requirements were met and, regardless of the wisdom of giving portions of the same street three different names, were certainly within the power of the City-Parish government, express or implied, to adopt.

For the foregoing reasons, the trial court judgment appealed from is annulled and reversed. Plaintiffs’ petition is hereby dismissed and all costs, both trial and appellate, are to be paid by plaintiffs-appellees.

REVERSED AND RENDERED.


author: LEAR, Judge.

text:
    Sam LEVATINO v. Realus J. WILLIAMS, Jr.
    No. 13590.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Duncan S. Kemp, III, Hammond, counsel for plaintiff.
    Leonard E. Yokum, Jr., Hammond, counsel for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is a petitory action arising out of a dispute over title to a tract of land containing 0.424 of an acre, situated in Tangipahoa Parish, Louisiana, described as follows:

“That certain tract of land described as Tract 2 as per that certain survey of Wallace L. Adams, Registered Land Surveyor and Civil Engineer dated July 23, 1979 containing .424 acres. Said Tract 2 being described as follows:
“Beginning at a point 754.40 feet South 02 deg. 45 min. 00 sec. West of the NE corner of Section 36, T 4 S, R 6 E; thence North 88 deg. 33 min. 58 Sec. East 244.00 feet; thence South 38 deg. 05 min. 44 sec. East 85.56 feet; thence South 88 deg. 51 min. 01 sec. West 300.00 feet; thence North 02 deg. 45 min. 00 sec. East 67.32 feet to point of beginning.”

The present action was brought in response to the judgment in a possessory action previously brought by Realus J. Williams, Jr. against Sam Levatino. The record reflects that record title to the property in question is vested in Sam Levatino, the chain of title having been introduced in the record of these proceedings. The defendant has no record title, and must claim title through thirty years acquisitive prescription.

The burden of proof to establish the facts essential to support a plea of thirty years acquisitive prescription rests on the party who makes the plea. Hoffman v. McKneely, 352 So.2d 260 (La.App. 2 Cir. 1977); Harry Bourg Corporation v. Parfait, 199 So.2d 405 (La.App. 1 Cir. 1967); LaCaze v. Boycher, 80 So.2d 583 (La.App. 1 Cir. 1955).

In order for a possessor to claim successfully the ownership of immovable property under a plea of thirty years acquisitive prescription, he must establish that there has been corporeal possession of the property for the required period of time as well as a positive intention to take and commence possession of the property as owner. Leblanc v. Laborde, 368 So.2d 1126 (La.App. 3 Cir. 1979), writ denied, 369 So.2d 1377 (La.1979); Humble v. Dewey, 215 So.2d 378 (La.App. 3 Cir. 1968). The jurisprudence of this state has determined that a party claiming such possession must evidence his possession by enclosures. Schneider v. Delaughter, 362 So.2d 585 (La. App. 1 Cir. 1978).

In the possessory action, Mr. Williams had sought to be declared in possession of the strip of land now in dispute as well as a larger tract of land. In that action, Levati-no prevailed insofar as the majority of the property which was the subject of the pos-sessory action was concerned, with the trial court finding that Williams was in possession of the disputed strip of land described above.

Mr. Levatino purchased fifteen acres of land from James Young Ware, by deed dated June 1, 1926, comprising a five acre tract and a ten acre tract which are contiguous, but with the five acre tract lying in Range 6 and the ten acre tract lying in Range 7. Because of the dimensions of the sections in which the respective properties were located, the properties were offset rather than in line.

After the purchase of the property, Leva-tino cultivated a portion of the five acre tract, which caused him to construct a fence in 1926 along the common boundary between the five (5) acre tract owned by him and the property owned by the father of the defendant herein. The location of this fence is not in dispute. The said fence was constructed by Levatino along the south boundary of the five acre tract, and upon reaching the range line, or eastern boundary of the said tract, turned north along the range line, then turned at right angles to the west, and eventually enclosed the entire five acre tract. Neither at the time Levati-no purchased the property, nor when he constructed the fence, was a survey made of the respective properties. Subsequently, Levatino began to cultivate a larger part of his property, including a portion of the ten acre tract lying to the rear of the five acre tract. Again, without the benefit of a survey, Levatino constructed a fence for the primary purpose of protecting that portion of his property which was under cultivation from cattle which roamed in the area. This fence was merely an extension of the first fence built by Levatino to enclose the five acre tract, and was intended to enclose a small portion of the ten acre tract which Levatino was then taking into cultivation. From the time of the construction of the second fence until 1958, there were apparently no controversies between the parties over the fence or the land. During this period of time, according to Mr. Williams, his father operated a dairy and apparently allowed his cattle to roam at large in the area, which area consisted of the back portion of the Levatino property, all of the property owned by Mr. Williams, Sr. and some property owned by a timber company to the east.

In 1958, the original fence constructed by Levatino had fallen into a state of disrepair, so Levatino requested Mr. Williams to assist him in repairing the fence. Mr. Williams declined to do so. Levatino then backed up a few feet to the north of the original fence that he had constructed, and built a new fence (again enclosing the cultivated portion of his property). After the construction of the new fence, Levatino advised Mr. Williams that he was giving him thirty days to erect his own fence. According to Leva-tino’s testimony, Mr. Williams simply tore down the remnants of the old fence, and then constructed a fence that paralleled the Levatino fence for a short distance, approximately 300 feet, and then turned back to the south around the cultivated portion of Mr. Williams’ property. According to the record, this 1958 fence was the first fence constructed by Williams.

In 1966, Levatino extended his fence in an easterly direction to the rear of his property because of a cattle operation that he and his sons had commenced.

In 1970, the defendant herein, beginning at the eastern-most extent of the fence built by his father, constructed a “temporary fence” that was designed “only to keep cattle in.” It was the testimony of Mr. Williams that this temporary fence simply ran from tree to tree and was not intended to delineate the boundaries between the two properties. Also in 1970, Mr. Williams, together with his two brothers, employed O.C. Hollister to survey and divide the property lying south of Levatino, which they had inherited from their father. By partition the defendant herein obtained that portion of the Williams property lying immediately adjacent to Levatino’s property. In October of 1973, Levatino had his property surveyed by Wallace Adams, a Registered Land Surveyor, which survey indicated that the boundary between the Williams property and the Levatino property, with respect to the ten acre tract of Mr. Levatino, was actually to the south of the original fence constructed by Mr. Levatino in 1958, and the fence constructed by Mr. Williams, Sr. in 1958. On the basis of this survey, Mr. Levatino attempted to construct a fence along the surveyed boundary; and the pos-sessory action ensued.

The results of the possessory action left Realus Williams, Jr., the defendant herein, in possession of that small portion of property designated as tract 2 of the Adams survey, and left Sam Levatino in possession of that portion of property designated as tract 1 on the Adams survey. Iii response to the judgment in the possession action, Levatino filed this petitory action, which resulted in a judgment in favor of the defendant, Realus J. Williams, Jr. In the judgment, the trial judge was of the opinion that the defendant acquired tract 2 (0.424 acres) by acquisitive prescription, but decreed that Levatino owned the “parent” 10.232 acre tract less and except said 0.424 acres. Mr. Levatino appealed devolutively.

Our conclusion is that the evidence fails to show that the defendant maintained an enclosure, such as a fence, around the disputed property or exercised open, physical possession as owner thereof for a continuous and uninterrupted period of thirty years. The evidence establishes that there has been no visible boundary or actual uninterrupted possession by the defendant or his ancestors in title for thirty years, or more, of the land extending beyond that described in the Williams’ title, and embraced within the visible bounds. The requirements of LSA-C.C. art. 852 (now article 794) are not met.

It is apparent from the record that Leva-tino chose to enclose only that portion of his land which was cultivated. The only fence erected for that purpose from 1926 to 1958 was constructed by Levatino. Williams erected no fence until 1958, which is an insufficient time for acquisitive prescription to apply.

For the above reasons, the judgment of the trial court is reversed and judgment is rendered in favor of plaintiff and against the defendant, decreeing plaintiff, Sam Le-vatino, to be owner of the following described property, which property includes tract 2 described above and which is more fully described as follows:

“A certain piece or parcel of land located in the Parish of Tangipahoa, State of Louisiana, described as 10.232 acres located in the NW/4 of Section 31, T 4 S, R 7 E, described as follows:
“Begin at a point 410.21 feet South 02 deg. 45 min. West of the NE corner of Section 36, T 4 S, R 6 E; thence North 88 deg. 51 min. 01 sec. East 1075.74 feet; thence South 00 deg. 00 min. 02 sec. West 410.64 feet; thence South 88 deg. 51 min. 01 sec. West 1095.48 feet to the range line dividing R 6 E and R 7 E; thence North 02 deg. 45 min. East 411.51 feet to point of beginning.”

REVERSED AND RENDERED.

      . The two fences erected by the landowners were wide enough apart for a lane between them.

      . Art. 3499:
      The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.
      Art. 3500:
      The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.

      . LSA-C.C. Art. 852:
      Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.


text:
    Barbara LANDRY v. Jules A. MADERE and Jules A. Madere, Inc. d/b/a Jules Madere Creative Jewelers, Inc.
    No. 13921.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied April 27, 1981.
    Conrad S. Adkins, Baton Rouge, counsel for plaintiff-appellant, Barbara Landry.
    Robert L. Kleinpeter, Baton Rouge, counsel for defendants-appellees, Jules A. Mad-ere and Jules A. Madere, Inc., d/b/a Jules Madere Creative Jewelers, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff alleges that in August, 1977 (defendant’s records, indicate August 2, 1977), she contracted with defendants, Jules A. Madere and Jules A. Madere, Inc. d/b/a Jules Madere Creative Jewelers, Inc., to remove a diamond from her engagement ring and reset it in another ring. Plaintiff contends that the reset diamond she received from defendants was not the same stone she delivered to them.

After trial, the judge, in oral reasons, ruled in favor of defendant, basing his opinion on plaintiff’s failure to prove her claim by a preponderance of the evidence. We agree.

The law of this state requires, in a civil proceeding, that plaintiff prove his case by a preponderance of the evidence. By a preponderance of the evidence means evidence of greater weight or evidence which is more convincing than that offered in opposition to it. Iennusa v. Rosato, 207 La. 999, 22 So.2d 467 (1945); Coldtharp v. Hearin Tank Lines, Inc. et al, 239 La. 445, 118 So.2d 881 (1960).

Plaintiff called as witnesses Isaac Bodin, a jeweler from whom her ex-husband, Belin P. Landry, acquired the diamond in 1973, and Belin P. Landry. Both testified that the present stone is not the same stone acquired in 1973. Plaintiff testified that while driving home after picking up the ring from the defendant’s store, she noticed that it was cracked and that it was not her diamond. She testified further that a couple of months later she went to Lake Charles, Louisiana, and had lunch with Mr. Landry, at which time she showed him the ring. He inquired as to how it got cracked and they took it to Mr. Bodin’s shop. Later, Landry called defendant. According to Landry, this was in February, 1978, some five or six months after plaintiff received the ring from defendant.

The fact that plaintiff did not complain or make any demand on defendant during this long period, even though she saw defendant on two occasions shortly after receiving the ring, caused the trial judge some concern. We find this feeling of concern quite reasonable. It does not sound plausible for plaintiff to have remained silent for such a period of time.

Regardless of whether or not the diamond in question is the same one purchased by Landry from Bodin, the court was of the opinion that the diamond plaintiff received from defendant was the same one she delivered to defendant.

For the above reasons, the judgment of the trial court is affirmed, plaintiff to pay all costs.

AFFIRMED.


text:
    Joseph H. GRAVES, Sr. v. Albert J. IRWIN and the Foremost Insurance Company.
    No. 13928.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      Michael J. Matthews, Gonzales, for plaintiff and appellant.
    Charles W. White, Baton Rouge, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This suit is a claim for physical damages and medical expenses resulting from an intentional shooting.

The record indicates that on May 10, 1975, Albert Irwin (defendant) shot Joseph Graves, Sr., (plaintiff) in the face with a .12 gauge shotgun, resulting in the loss of plaintiff’s right eye.

From the testimony, it appears that plaintiff had been having a relationship with Ernestine West, defendant’s sister, over a period of time. In 1974, plaintiff and Ernestine West (West) purchased a mobile home for West to live in at Darrow, Louisiana. Plaintiff had visitation rights and a key to the trailer. On the night of May 10, 1975, he stopped by to visit West and found a man in her closet. Plaintiff struck West and she, along with the other man, left the trailer. Plaintiff left a short time later, then returned to the scene allegedly to lock the trailer. Upon his arrival, he found West and five members of her family, including defendant, inside the trailer in the act of removing her personal belongings. Plaintiff entered with a pistol and ordered all of them out. They had left the trailer and walked to an area where their cars were parked when suddenly West commenced firing shots into the trailer. Defendant removed a shotgun from his car and fired two rounds of number six shot into the trailer window.

The testimony at this point differs. Plaintiff testified that he turned out the lights in the trailer and was attempting to escape through the back door when he was shot in the face by defendant. Plaintiff then fired in the direction of the shotgun blast.

The testimony of most of the witnesses varied to some degree, which is understandable under the circumstances. However, the defendant admits firing two shots into the trailer and stated that he then saw a shadow moving around the trailer, saw the individual squat at the corner of the trailer and fire several shots in defendant’s direction. At that time, defendant says he returned the fire and wounded plaintiff.

The court concluded, in its reasons for judgment and as stated in the record, that plaintiff started the whole chain of events by pulling a gun and ordering the others out of the trailer and was, therefore, barred from recovery under the “aggressor doctrine.” This doctrine denies recovery in a tort action by an aggressor, but there are exceptions including (1) use of excessive force to repel the aggressor and (2) after the aggressor’s bona fide and reasonably perceivable retirement from the affray, or attempt to do so, when the original victim assaults the original aggressor after the retreat. Landry v. Gilger Drilling Company, 92 So.2d 482 (La.App. 1st Cir. 1957). Should the court accept plaintiff’s version of the facts, it is obvious that the original assault by plaintiff ended when the defendant and other parties left the trailer and the defendant and West became aggressors when they commenced shooting into the trailer. According to plaintiff, he did not fire a shot before his injury by the defendant.

If we accept defendant’s version, we again must conclude that defendant and West became the aggressors by firing into plaintiff’s trailer and that this did not change when plaintiff fired back in self-defense.

Under either set of facts set forth in the record, plaintiff is entitled to recover damages and medical expenses.

It should also be noted that firing into the trailer, where plaintiff was known to be, cannot be justified as reasonable force to repel a prior assault. The assault was over and neither defendant 'nor West was in any danger at the time the shots were fired into the trailer.

In the court below, although Foremost Insurance Company was named as a party defendant, no service of process was con-fected and, therefore, it is not a party to this appeal. ,

Dr. Charles Afeman, a Baton Rouge ophthalmologist, testified on behalf of plaintiff. He first examined plaintiff on the same day of the shooting at Our Lady of the Lake Hospital in Baton Rouge. He described his findings as multiple lacerations and contusions about the face and lids with considerable hemorrhaging in the right eye; that he found and removed small lead pellets from the eye tissue. Appellant was hospitalized from May 10, 1975, through May 23, 1975.

After his discharge, he continued to see the doctor. Dr. Afeman further testified that appellant continued to experience pain and to complain of discomfort. He testified that appellant has a one hundred percent loss of vision in his right eye except for light perception only; that he has no reasonable prognosis for restoration of vision. The doctor testified that appellant’s visual acuity in the left eye was 20/30; that this condition resulted from a cataract in the left eye. Finally, the doctor estimated the value of the services rendered at $800.00. His testimony is uncontroverted.

Plaintiff testified that he was employed for three years prior to the incident at Gulf Elevator at Senelmo, Louisiana, as a diesel mechanic. His pay was $600.00-$700.00 per week. After the incident, he was unable to perform the duties of a diesel mechanic. He, then, became a barge shifter, sustaining a substantial drop in pay. He testified that he was employed for about four months at between $250.00 and $350.00 per week.

Appellant was approximately 56 years of age at the time of the injury. It would appear that he has been permanently disabled by the injuries sustained. In his petition, he seeks $186,300.00. Defendant-ap-pellee, on the other hand, has instituted bankruptcy proceedings. His estate, as best we can glean from the record, is a meager one. Appellant was 61 years of age at the time of trial. He is substantially disabled as a direct result of this incident. The defendant-appellee, on the other hand, is a much younger man.

We believe that the appellant should recover the full amount of medical expenses, which are fixed at $800.00. For loss of vision and the attendant pain and suffering, we have awarded as high as $25,-000.00. Fairchild v. Brian, 354 So.2d 675 (La.App. 1st Cir. 1977). However, in view of the circumstances and injuries sustained, and also taking into consideration the lack of means of the defendant-appellee, we shall award to appellant the amount of $12,500.00 as general damages. (See Cordes v. Chatellier, 325 So.2d 747 (La.App. 1st Cir. 1976); Ogden v. Smith, 344 So.2d 1099 (La. App. 3rd Cir. 1977).

Accordingly, the judgment of the trial court dismissing plaintiff’s suit at his costs is reversed and judgment is rendered in favor of Joseph H. Graves, Sr., and against Albert J. Irwin, defendant-appellee, in the full sum of Thirteen Thousand Three Hundred and No/100 ($13,300.00) Dollars, together with legal interest from date of judicial demand. Defendant-appellee is to pay all costs of these proceedings, trial and appellate.

REVERSED AND RENDERED.


author: COVINGTON, Judge.

text:
    Rita Setliff LAWSON v. Richard K. LAWSON.
    No. 13991.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Albert J. Lord, Zachary, for plaintiff-appellant, Rita Setliff Lawson.
    R. Neal Wilkinson, Baton- Rouge, for defendant-appellee, Richard Keith Lawson.

      Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal by the mother, Rita Setliff Lawson, from a judgment dated June 19, 1980, granting permanent custody of the minor child, Shad Lawson, who was age 7 at the time of the hearing, to his father, Richard K. Lawson. We affirm.

In May of 1977, the parents of the minor child physically separated, with the very young child being left with the father. Then, the mother sued for separation, temporary custody, child support and certain injunctive relief; however, the parties reconciled, resulting in the trial court’s dismissal of the separation action. Subsequently, another suit for separation was filed by the wife on December 27, 1978. The judgment in the matter of custody, signed January 31, 1979, decreed “that at the time of hearing on the merits the child support and/or alimony can be fixed; and that it will not be necessary to retry the issue of permanent custody and rehear evidence already heard, but that new evidence relative to custody shall be received into evidence,” and awarded temporary custody to the mother.

Custody was maintained with Rita Lawson through several hearings on rules; and on June 22,1979, a judgment of separation was rendered in favor of Rita Lawson, with “custody”, subject to reasonable visitation rights, to remain with the mother. This was in effect an award of “permanent custody.” LSA-C.C. art. 157, as amended; O’Bryan v. O’Bryan, 391 So.2d 1206, (La. App. 1 Cir. 1980) No. 13,583. The father was condemned to pay child support.

Then, on December 12, 1979, the father filed suit for divorce and sought permanent custody of Shad Lawson, alleging that it was in “the best interest” of the child to grant such custody to the father. On March 11, 1980, a divorce was rendered in favor of Richard Lawson, with all outstanding orders of the court remaining in effect. Thereafter, the trial judge rendered judgment on June 19, 1980, for oral reasons assigned, in favor of the father giving him permanent custody, with visitation rights reserved to the mother.

This case is governed by LSA-C.C. art. 157, as amended, which provides that permanent custody of the child shall be granted to the husband or the wife (mother or father) in accordance with “the best interest” of the child, “without any preference being given on the basis of sex of the parent.” This codal article as amended does away with the maternal preference rule and any presumption in favor of the mother in a custody dispute. Dickey v. Dickey, 383 So.2d 803 (La.App. 1 Cir. 1980); Thornton v. Thornton, 377 So.2d 417 (La. App. 2 Cir. 1979). This amendment also abrogates the “double-burden” rule. Bor-delon v. Bordelon, 390 So.2d 1325 (La.1980).

The standard of review in custody matters gives great weight to the determination of the trial judge, and his discretion will not be disturbed on review in the absence of a clear showing of abuse thereof. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980); Montgomery v. Montgomery, 383 So.2d 1384 (La. App. 4 Cir. 1980). We find no abuse in the instant case.

The trial judge had the opportunity to view the opposing parties and was in a better position than the reviewing court to evaluate the best interests of the child from his total overview of the conduct and character of the parties and the effect of all of the factors on the welfare of the child.

The record reflects that this is a suit seeking, inter alia, a change in the permanent custody of the child from the mother to the father.

There is nothing in the record to suggest that Shad Lawson was anything other than a happy, healthy, well-adjusted child while Richard Lawson had physical custody of his son, from the summer of 1976 until December 20, 1978. In contrast, the record reflects that since December 20, 1978, the child has been uprooted and moved several times, living first in East Baton Rouge Parish and then being moved to Rapides and Natchitoches Parishes, and then back and forth between the two parishes. The mother explained the child’s frequent absences from school as sick with chicken-pox, being brought home late the night before school by the father, and being “too disturbed” to go to school. The record reflects numerous visitation problems while the child was in the care of the mother. The mother repeatedly blocked attempts by the father to see and talk with the child, culminating in her refusal to obey the judgment of the Family Court of the Parish of East Baton Rouge. Concerning the visitation problems, the mother testified:

“Q. I asked if you refused to allow Richard Lawson to see his son as set forth in the judgment of separation.
A. Yes. For one reason.
Q. But you did refuse.
A. Yes, I did.
Q. Have you refused on other occasions when Mr. Lawson has travelled to Alexandria to see the child?
A. Yes, sir; when he came on the wrong day, Or when it was not his weekend to have Shad.
Q. Isn’t it true that there have been occasions when he has been up there one weekend and you have denied visitation and he would attempt the next weekend and you denied it again?
A. That was no — I have no knowledge of that.
Q. Okay. You had Richard Lawson arrested, did you not?
A. Yes, I did.
Q. For non-support.
A. Yes.
Q. And it was because of the occasion when he brought the check and you refused the child and at that time you refused to let him see the child and he walked away.
A. Would you mind saying that again?
Q. Okay. The whole incident of having him arrested arose over that payment that you discussed when he came to see the child and you refused to let him see him?
A. Sir, that was December 2, he came, which was not his weekend; and he went away with the check.
Q. When did you file the non-support charge?
A. December 18, 1979.
Q. Were you holding a check at that time that had been tendered by Mr. Lawson, mailed to you?
A. I had that cashed and put in the bank. I sure did.
Q. Didn’t you hold that check for about two or three months during the pendency of that non-support proceeding?
A. I had bills to pay. No, I did not.
Q. Where was Shad when Richard was arrested?
A. At my aunt and uncle’s that raised me.
Q. Okay. Was he in the room?
A. Yes, he was.
Q. Did you make any attempt to get him away from that scene?
A. No, I did not.
Q. Why?
A. Because it was not my fault that he was arrested.
Q. But, it was your child.
A. Yes, he was.
Q. And you felt nothing about putting him through the ordeal of seeing his father arrested at your behest.
A. I know that hurt my child and I know it hurt me also.
Q. But you made no attempt to remove him from there?
A. I did not. That’s the answer.
Q. How long has it been since Richard has been allowed to see his child?
A. I think it was the 24th of April if I am not mistaken.
Q. And on occasion he has driven up and been refused the right to see Shad?
A. Not that I know of.
Q. You heard him say that there were times when he would drive up and Shad would be kept inside the house and he was not allowed to see Shad at this time?
A. This was one thing I do not remember.”

She described herself as a “nervous person” who is taking Phenobarbitol and Dilantin and who goes to the doctor once a month. She has “no ability to work in public jobs,” such as secretary, and lives on Social Security income, food stamps and money from the Housing Authority.

The child’s physical, mental and emotional needs are met and his surroundings are stable when he lives with his father and the environmental circumstances of his father’s home are beneficial to the minor child. Although the record reflects that this is actually the third change in “custody” of this young boy within a brief span of time (three times in three years), there is ample evidence in the record to convince us that the best hope for this child to lead a reasonably normal life lies with the father having the permanent custody of him. Our review of the record leads us to conclude that the trial court had a sufficient basis for the award of permanent custody of Shad Lawson to his father, Richard K. Lawson. We conclude that the trial court made a reasoned and correct award of permanent custody based on all of the evidence, and the best interest of this child will be served by permanent custody being in the father.

Accordingly, the judgment is affirmed at the appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Susan B. PAVLO v. Gary PAVLO et al.
    No. 13998.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Byard Edwards, Jr., Ponchatoula, counsel for plaintiff.
    John Yeargain, Hammond, counsel for defendants-appellants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The defendants-appellants, Gary Anthony Pavlo, Anthony Pavlo, and Marlene Pavlo, appeal the decision of the trial court overruling the declinatory and dilatory exceptions filed on their behalf objecting to the jurisdiction of the Court and the improper cumulation of actions. We dismiss this appeal for lack of the right to appeal.

It is well settled that the overruling of declinatory and dilatory exceptions are not appealable unless there is a showing of irreparable injury on the part of defendants-appellants. Delapasse v. Phillips, 348 So.2d 754 (La.App. 1st Cir. 1977) and Fontenot v. O’Brien, 302 So.2d 399 (La.App. 1st Cir. 1974).

As stated in the Fontenot case, supra, at page 400:

“Louisiana Code of Civil Procedure Article 2083 provides the types of judgments which are appealable, to-wit:
‘An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.’
“The dismissal, ex proprio motu, of this attempted appeal from the interlocutory judgment herein is sanctioned by Louisiana Code of Civil Procedure Article 2162 as follows:
‘An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned. * * * ”’ (Emphasis ours)

There has been no showing or even an attempt to show any irreparable harm on the part of the defendants-appellants. Therefore, this appeal must be dismissed.

For the foregoing reasons, the appeal herein is dismissed at the cost of the defendants-appellants and the case is remanded to the trial court for further proceedings.

APPEAL DISMISSED; CASE REMANDED.


text:
    Willie FINCH v. W. Wayne LAKE, Jr., et al.
    No. 14000.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Constant G. Marquer, Jr., New Orleans, for plaintiff.
    Henry B. Alsorbrook, Jr., and Harold A. Thomas, New Orleans, for defendants W. Wayne Lake, Jr., and The Hartford Ins. Co.

      Charles A. Boggs, New Orleans, for Seventh Ward General Hospital.
    James K. Irvin, New Orleans, for W. Wayne Lake, Jr.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a medical malpractice suit. The plaintiff is Willie Finch. The defendants are Dr. W. Wayne Lake, Jr.; The Hartford Insurance Company, the doctor’s insurer; Seventh Ward General Hospital and its insurer, given in the petition as ABC Insurance Company. The defendants’ exception of prescription was sustained by the trial judge. From a judgment dismissing his suit, plaintiff appeals. We reverse and remand for amendment of pleadings.

The present action is one brought by Willie Finch against the defendants, alleging medical malpractice due to a pulmonary function study performed by Seventh Ward General Hospital on August 23, 1976. The suit was filed on February 22, 1980, more than one year after the alleged malpractice.

The applicable statute on prescription in medical malpractice cases is LSA-R.S. 9:5628, which provides in pertinent part as follows:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.”

The general rule is that where plaintiff’s petition shows on its face that the prescriptive period has run, and plaintiff is contending that there was a suspension or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Hunter v. Sisters of Charity of the Incarnate Word, 236 So.2d 565 (La. App. 1 Cir. 1970); see also Duhon v. Saloom, 323 So.2d 202 (La.App. 3 Cir. 1975), writ refused, 325 So.2d 794 (La.1976).

In the instant case the plaintiff’s alleged tort occurred on or about August 23, 1976, and suit was not filed until February 22, 1980. Since plaintiff’s claim appears prescribed on its face, plaintiff bears the burden of showing suspension or interruption of prescription.

At the hearing on the exception no testimony or other evidence was introduced. Thus, apparently the plea of prescription was tried on the face of the pleadings. The record is barren of proof of any of the allegations made by the plaintiff.

However, we note that in his petition the plaintiff alleges the failure of the defendants “to adequately perform pulmonary function studies tests,” but gives no date concerning this omission. The only other date given in the record is that of October 29, 1979, which is alleged to be the date of the trial of a matter entitled “Willie Finch v. Delta Field Erection, et al.,” No. 51,425 on the docket of the 21st Judicial District Court for the Parish of Tangipahoa, Louisiana, and alleged to be the date on which plaintiff discovered that “The pulmonary function study listed his weight at 135 lbs. when in effect [fact] his actual weight was 235 lbs., thereby causing a discrepancy in the normalcy of the pulmonary function studies.” See Cordova v. Hartford Accident & Indemnity Company, 387 So.2d 574 (La.1980).

While we uphold the ruling of the trial court on the exception itself, we find that it erred in refusing to allow the plaintiff an opportunity to amend his pleadings so as to come within the prescriptive period if he can. When the ground of exception can be removed by amendment, the trial court must allow the plaintiff an opportunity to amend. LSA-C.C.P. art. 934; H & H Boat Rental, Inc. v. Vidos, 225 So.2d 308 (La.App. 1 Cir. 1969).

Accordingly, we concur in the decision of the trial court sustaining the exception of prescription, reverse its dismissal, and remand to allow the plaintiff fifteen days from the date of finality hereof to amend his petition.

Costs of this appeal are assessed against the appellant, Willie Pinch; costs in the trial court must await final disposition of the case.

REVERSED AND REMANDED.


text:
    Thomas E. HYSMITH v. C. T. COLESON.
    No. 14002.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Jerome P. Halford, New Orleans, for plaintiff-appellant.
    Bernard S. Smith, Covington, for defendant-appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Thomas E. Hysmith, appeals the trial court’s granting of a directed verdict in favor of the defendant-ap-pellee, C. T. Coleson. Plaintiff had filed suit to set aside a transfer of property based on simulation, disguised donation or, alternatively, lesion beyond moiety.

After plaintiff indicated he had no other witness to call, defendant moved for a directed verdict in his favor dismissing plaintiff’s suit. The trial court granted the motion. We reverse.

Louisiana’s Code of Civil Procedure Article 1810(B) is the applicable statute on directed verdicts and reads as follows:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

Even though plaintiff rested his case, there was a joint stipulation entered into by the attorneys for both parties at the start of plaintiff’s evidence that they were to take the deposition of a bank employee, who had control of the bank records of plaintiff’s deceased grandmother. The deposition was to be completed and filed sixty days from date of the trial and was to be part of plaintiff’s case on direct.

Under these facts, we hold the trial court erred in granting the directed verdict since the plaintiff had not “completed the presentation of his evidence” at the time the directed verdict was granted. See Duplechin v. John Doe, Rimmer & Garrett, Inc., 365 So.2d 53 (La.App. 3rd Cir. 1978).

For the foregoing reasons, the judgment of the trial court granting defendant’s motion for a directed verdict is reversed and this case is remanded for further proceedings. Defendant is to pay for the cost of this appeal; all other costs are to await the final disposition of this matter.

REVERSED AND REMANDED.