text:
    John F. ARLEDGE, Jr., Plaintiff-Appellant, v. ROYAL-GLOBE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8275.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant-appellee.
    Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Alexandria, for defendant-appellee-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, McLure & McLure, John C. Pickels, Alexandria, for defendants-ap-pellees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

On October 19, 1978, John F. Arledge, Jr. was injured when a 20 to 25 pound pipe fell from the back of a passing eastbound pulpwood truck and struck Arledge’s westbound pickup truck, shattering the windshield and striking him. Arledge sued the driver and owner of the pulpwood truck, Robert L. Earthly; Mid-American Casualty Company, Earthly’s alleged insurer; Grant Forest Products, Inc. (Grant), Earthly’s alleged employer; Commercial Union Insurance Company (Commercial Union), Grant’s insurer; and Royal-Globe Insurance Company (Royal-Globe), Arledge’s uninsured/unde-rinsured motorist insurer. In addition, Royal-Globe filed a third party demand against Earthly and Grant.

Grant and Commercial Union filed a motion for summary judgment contending that Earthly was not an employee of Grant, or, if he was found to be an employee, that he was not acting within the course and scope of his employment at the time of the accident. Movers supported their motion with the deposition of Robert Earthly.

Arledge and Royal-Globe opposed the motion but offered no evidence in opposition to the motion. The trial court granted the motion for summary judgment on the basis that “Mr. Earthly’s operation received nothing near the modicum of control necessary from Grant Forest Products to render him an employee or servant of Grant... . ” From the granting of this motion, which had the effect of dismissing Grant and Commercial Union from the suit, both Ar-ledge and Royal-Globe have appealed.

The only issues on appeal are: (1) Is there a genuine issue of material fact as to whether Earthly was an employee of Grant? (2) Assuming Earthly was an employee of Grant, is there a genuine issue of material fact as to whether he was acting within the course and scope of his employment at the time of the accident? We will consider each of these issues separately.

THE EMPLOYER-EMPLOYEE RELATIONSHIP

Under the doctrine of respondeat superior, employers are responsible for the torts of their employees committed during the course and scope of employment. La. C.C. art. 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). In determining whether a person’s status is that of independent contractor, in which case there is no vicarious liability, or that of mere servant, in which case the employer is vicariously liable for the torts of his employee, the courts must determine whether and to what degree the right to control the work is reserved by the employer. The supervision and control which is actually exercised is less significant. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972); Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955); Odom v. Eaves, 311 So.2d 575 (La.App. 3rd Cir. 1975).

The following facts were adduced by reading the deposition, and were relied upon by the trial court granting the motion for summary judgment: Defendant Earthly owned his own pulpwood truck and tools; he was responsible for all expenses incurred in connection with operating his truck, such as gas, oil, tires, and insurance, and he was not paid any travel expenses; he worked when he chose to do so; how he cut the wood and hauled it was entirely up to him; he enjoyed complete discretion to hire and fire those who helped him cut and haul the wood; he could hire as many or as few employees as he desired to help him cut and haul the wood; he was not required to wear any safety equipment while he worked; Grant paid him $19.00 per cord of wood delivered to either of two wood yards with whom Grant had a contract; and Grant did not withhold any amount from his checks for social security, federal income tax, or state income tax.

To reach its decision, the trial court relied upon only those facts which tended to support the movers’ motion for summary judgment.

In the recent case of Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981), the Louisiana Supreme Court set forth the rules to be applied when determining the merits of a motion for summary judgment:

“A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden.” (Citations omitted; Emphasis added).

Under the Vermilion Corporation analysis, we are required to scrutinize papers supporting the motion for summary judgment while indulgently treating those papers supporting the opposers of the motion. Although only Earthly’s deposition was offered as evidence for either side, much of his testimony supports the opposers’ position that he is an employee of Grant: Earthly’s sole source of income for the past ten to fifteen years has been from work performed for Grant; Stewart James, a Grant supervisor, tells him which trees to cut and where they are located; and whenever he is told to do something by James he immediately obliges. In addition, Earthly testified that he felt Stewart James and Carroll Maxwell (apparently James’ supervisor) were his bosses; that if he refused one of James’ requests, he could be fired; that if his work was not satisfactory in any other way, he could be fired; and that if he did not show up for work for two or three days in a row, James or another Grant employee would call upon him to determine what the problem was. Furthermore, Grant loaned Earthly the money used to buy his truck, his equipment, and his automobile insurance. To repay itself for these loans, Grant would withhold $2.00 per cord of wood that Earthly cut and delivered. However, the deposition does not reveal whether Earthly was paying interest on the loan. Finally, Earthly and his employees are covered by Grant’s workmen’s compensation insurance policy.

After examining Earthly’s deposition in the light most favorable to the opposers of the motion for summary judgment, Arledge and Royal-Globe, we conclude that a genuine issue of material fact exists as to whether Earthly was an employee of Grant.

In arguing that the facts adduced from Earthly’s deposition conclusively demonstrates that he is not an employee of Grant, Grant and Commercial Union rely principally upon the recent case of Johnson v. Maricle, 386 So.2d 677 (La.App. 3rd Cir. 1980). Therein, Maride, a pulpwood cutter and hauler, negligently struck plaintiff’s tractor with his loaded pulpwood truck while en route to a woodyard owned and operated by one Cloud. Plaintiff sued Maride and Cloud, contending that Maride was an employee of Cloud. The trial court granted judgment against Maride because he was the tortfeasor, and against Cloud for making it possible for Maride “to get on the highways of this State with a used wood truck without any public liability insurance . . . . ” The trial court did not address the issue of whether an employer-employee relationship existed between Maride and Cloud. A panel of this Court speculated that the trial court did not believe that an employer-employee relationship existed, otherwise it would have been simpler for the trial court to permit recovery based on Cloud’s vicarious liability as Maricle’s employer, rather than on the erroneous theory of recovery upon which the judgment was based. The Court then concluded that the trial court was not clearly wrong in finding that no employer-employee relationship existed.

Pertinent facts from the Johnson v. Maricle case were outlined in the Court’s opinion as follows:

“Maride testified that he had been hauling pulpwood for Sam Cloud for approximately two to three years prior to the accident. Once the wood was cut and hauled to Cloud’s woodyard, Maride was paid the proceeds which were determined directly by the number of cords of wood he had hauled, less stumpage. The record shows that Cloud would withhold amounts from the proceeds paid to Mari-de, which amount was used to pay the note on the truck that Cloud had arranged for Maride to purchase. Furthermore, the record shows that on one occasion, Maride delivered pulpwood to a woodyard which was not owned and operated by Sam Cloud. As a result, Cloud threatened to have Maricle’s truck taken away.
The record further reveals that Maride exercised complete control and ownership of the truck and maintained it through the use of his own funds. Title to the truck was in Maricle’s name, and the truck was garaged at his residence. Cloud in no way exercised direct supervision over Maricle’s activities while he was cutting pulpwood. Maride had his own employee whose wages were paid by Ma-ride himself. Maride was free to cut pulpwood wherever he deemed expedient. Cloud did not inform or instruct Maride where to go to find the pulpwood which he would cut and haul to Cloud’s wood-yard.
Maride supplied and used his own tools, gasoline and lubricants in his woodcutting operation. Cloud did not withhold any sums for social security or federal and state income taxes from the proceeds paid to Maride.
* * * $ $ $
Maride was not under the continuing auspices of Cloud and was free to procure pulpwood from whomever he desired. Although Cloud apparently ‘required’ Ma-ride to haul exclusively for him, Maride had in the past hauled pulpwood to another woodyard. Cloud did exercise a type of control over Maride; however, this control was not the type characteristic of an employer-employee relationship. The relationship between Maride and Cloud was more in the nature of a buyer-seller. This being the case, the power of dismissal which an employer ordinarily commands over an employee was not present as it is in the ordinary employer-employee relationship. The wages paid to Maride were directly related to the amount of wood which he cut and hauled to the woodyard. Cloud did not control how much wood Maride cut and sold. The fact that Cloud co-signed a note with Maride in order that Maride could purchase a truck is not a fact of such significance so as to render the existing relationship one of employer-employee. The truck could not be repossessed so long as Maride continued to make the required payments, regardless of Cloud’s posture as a co-maker or surety on the note.” (Emphasis added).

The facts in Johnson v. Maricle are similar in many respects to the facts here, but the cases are distinguishable. Maride was free to procure pulpwood from whomever he desired and could sell the pulpwood to whomever he chose. Also, Cloud did not control how much wood Maride cut and sold or when he cut it. However, certain statements made by Earthly in his deposition which support Arledge’s and Royal-Globe’s position raise a question as to whether Earthly enjoyed the same degree of freedom.

Possibly the most important distinction between this case and Johnson is the standard of appellate review which must be applied. In Johnson, the Court applied the manifest error rule because it was reviewing factual findings made by the trial court after trial on the merits was conducted. In the instant case our duty is to decide whether the trial court erred in granting summary judgment. But to discharge our obligation we are not free to simply inquire whether the trial court judgment was manifestly erroneous or clearly wrong; we must apply the stricter standard set forth in Vermilion Corporation, supra.

The circumstances of this case more closely resemble those of Odom v. Eaves, supra, than of Johnson v. Maricle. In Odom, summary judgment was granted in favor of the alleged employers of the tort-feasor Eaves, who cut and hauled' timber using his own truck. This Court reversed the summary judgment on the basis of an affidavit and deposition which revealed that Eaves was working on land owned by the alleged employer, Boise, and was cutting timber to be delivered to Boise’s mill according to Boise’s specifications. We there said that these facts raise a question of fact concerning the degree of control over which Boise could exercise over Eaves. As described above, we believe that statements made by Earthly in his deposition raise similar questions of fact concerning the degree of control which Grant could exercise over Earthly. For that reason, we decide that a genuine issue of material fact exists as to whether Earthly was an employee of Grant.

IN THE COURSE AND SCOPE OF EMPLOYMENT

Assuming that Robert Earthly was an employee of Grant Forest Products, Inc., we next consider whether there is a genuine issue of material fact as to whether Earthly was acting within the course and scope of his employment at the time of the accident. The trial court did not reach this issue since it decided that Earthly was not an employee of Grant. Hence, we do not know what its conclusion might have been, had it assumed that the employer-employee relationship existed.

Based upon Earthly’s deposition, it appears that he had driven his pulpwood truck from his house to pick up his employee, Hartner Greenhouse, and was then proceeding immediately to the work site some ten miles away.

In contending that the accident occurred while Earthly was outside the course and scope of his employment, Grant and Commercial Union rely upon the general rule that an employee is not within the course and scope of his employment while going to and coming from work. Wills v. Correge, 148 So.2d 822 (La.App. 4th Cir. 1963); writ refused 244 La. 147, 150 So.2d 768 (1963); Beard v. Seamon, 175 So.2d 671 (La.App. 1st Cir. 1965); Boudreaux v. Yancey, 319 So.2d 806 (La.App. 1st Cir. 1975); and Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App. 2nd Cir. 19.76), writ denied 333 So.2d 234 (1976).

Arledge and Royal-Globe contend, however, that Earthly was within the course and scope of his employment at the time of the accident, even though he was driving to work, because he was required and expected to drive his pulpwood truck, helpers, power saws, and other tools to the site selected by Grant for cutting on any particular day. The cases of Johnson v. Aetna Casualty & Surety Co., 387 So.2d 1340 (La. App. 1st Cir. 1980) and Willis v. Cloud, 151 So.2d 379 (La.App. 3rd Cir. 1963), writ refused 244 La. 623, 153 So.2d 415 (1963), seem to support Arledge’s and Royal-Globe’s contention that, although Earthly was on his way to work, there is a genuine issue of material fact as to whether he nevertheless was acting within the course and scope of his employment. In both cases, the employee was going to or returning from work when he was injured in an accident. The courts concluded that the injured worker was injured while in the course and scope of his employment, and hence was entitled to workmen’s compensation benefits because the truck in which each was riding at the time of the accident was a tool of his trade. In this respect Johnson and Willis are similar to this case since Earthly’s truck was also a tool of his trade.

Grant and Commercial Union contend that Johnson and Willis are not applicable because therein, the courts were concerned with whether the injured or killed employee was acting within the course and scope of his employment for workmen’s compensation purposes. They argue that while courts liberally construe the phrase “in the course and scope of employment” in workmen’s compensation cases, the same phrase is strictly interpreted and construed in tort cases where an injured third party is attempting to impose liability upon an employer for the torts of an employee. See Wills v. Correge, supra.

However, the Louisiana Supreme Court has impliedly disapproved of strictly interpreting the term “in the course and scope of employment” in tort cases in which an injured third party sues the employer of the tortfeasor/employee. In LeBrane v. Lewis, 292 So.2d 216 (La.1974), a third party who was injured when stabbed sued the employer of the tortfeasor/stabber. The Supreme Court reversed the appellate court finding that the stabbing did not occur during the course and scope of the employment. Justice Tate, speaking for a unanimous Court, said:

“The error was partially induced by the intermediate court’s conclusion that the course and scope of employment must be interpreted strictly in tort cases, citing Terito v. McAndrew, 246 So.2d 235 (La. App. 1st Cir. 1971). The course-and-scope requirement may be liberally construed in workmen’s compensation cases. However, aside from isolated expressions in intermediate opinions, we find no modern authority to support the holding that the requirement be strictly construed in favor of the employer in tort cases.” (292 So.2d at 218, footnote 3)

For purposes of determining whether the summary judgment should be granted, we believe that the phrase “in the course and scope of employment” should be liberally construed in accordance with the expression found in LeBrane. As we noted above, the facts of this case are very similar to the facts of Willis v. Cloud and Johnson v. Aetna. By liberally construing the term “in the course and scope of employment”, the trier of fact might conclude as those courts did that the employee (in this case Robert Earthly) was in the course and scope of employment when the accident occurred. Hence, we conclude that a genuine issue of material fact exists as to whether or not Robert Earthly was in fact in the course and scope of his employment when the accident in question occurred.

DECREE

For the above and foregoing reasons, the summary judgment of the district court which dismissed the defendants, Grant Forest Products, Inc. and Commercial Union Insurance Company, is reversed, and it is hereby Ordered, Adjudged, and Decreed that the motion for summary judgment be dismissed and that the case be remanded to the district court for further proceedings by plaintiff against all defendants, including Grant Forest Products, Inc. and Commercial Union Insurance Company. All costs are assessed against Grant and Commercial Union.

REVERSED AND REMANDED.

      . Mid-American contends its policy to Earthly was cancelled prior to the accident. Its motion for. summary judgment on that basis was denied, and that issue was referred to the merits. Mid-American has not appealed from the judgment denying its motion for summary judgment, hence, the issue is not before us at this time.

      . Arledge and Royal-Globe also argue that the instant case is analogous to Stephens v. Justiss-Mears Oil Company, 312 So.2d 293 (La. 1975). In Stephens, a driller was held to be in the course and scope of his employment while en route to work, even though he was not compensated for that time, because the Court believed that his employment began when he assembled a drilling crew at a convenient location prior to going to work each day. The driller was responsible for assembling the crew and getting the crew to work on time. Arledge and Royal-Globe argue that Earthly was responsible for getting himself and his helper to the designated work site early each morning. Statements made by Earthly do indicate that he was responsible for getting himself and whatever crew he had on any given day to work early each morning. Stephens is distinguished, though, because it was essential to the operation of the rig that a full crew be on hand. In the instant case, Earthly’s testimony indicated that he did not need a helper but could do the work alone.

      . See also Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970); Spain v. Travelers Insurance Company, 332 So.2d 827 (La.1976); and Hathorn v. Continental Bankers Life Insurance Company of the South, 334 So.2d 730 (La.App. 3rd Cir. 1976), tort cases which applied the liberal workmen’s compensation construction of the phrase “in the course and scope of employment” for purposes of determining whether an employee’s injuries were sustained in the course and scope of employment. In these cases, the employee was found to be in the course and scope of employment, so the courts found applicable a clause of a liability insurance policy which excluded coverage to employees injured during the course and scope of their employment. These cases and LeBrane v. Lewis exemplify the trend toward employing the same test in tort cases and workmen’s compensation cases to determine whether an employee is within the course and scope of his employment at the time of an accident which injures either the employee or a third person.


source: Caselaw Access Project

author: CUTRER, Judge. BIENVENU, Judge ad hoc,

license: Public Domain

text:
    Sam DUCOTE, Plaintiff-Appellant, v. Honorable Samuel G. COUVILLON, Clerk of Court, et al., Defendants-Appellees.
    No. 8282.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Donald R. Wilson, Jena, for plaintiff-appellant.
    Michael S. Johnson, Cottonport, for defendant-appellee.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

This appeal is taken from a judgment dissolving a temporary restraining order and awarding $1,500.00 in attorney’s fees for its wrongful issuance.

Article 3612 of the Code of Civil Procedure provides:

“There shall be no appeal from an order relating to a temporary restraining order. * * * ”

Therefore, an order dissolving a temporary restraining order is not appealable. Kinchen v. Kinchen, 256 La. 28, 235 So.2d 81 (1970).

The jurisprudence reflects, however, that a decree granting a money judgment for the wrongful issuance of the restraining order is a final judgment and is appealable. Carson v. Thomas, 342 So.2d 1219 (La.App. 2nd Cir. 1977); Kinchen v. Kinchen, supra. The making of such an award, as well as the amount thereof, lies within the discretion of the trial judge. Kinchen v. Kinchen, 249 So.2d 926 (La.App. 1st Cir. 1971), on rehearing.

Thus, this appeal presents only one issue: Whether the trial court abused its discretion in making the award of $1,500.00 in attorney’s fees.

The circumstances leading up to this appeal are as follows:

The plaintiff was adjudicated a bankrupt on May 22, 1978. Subsequently, his attorney filed suit to cancel the discharged judgments which had been recorded against plaintiff by his creditors. Through inadvertence, the petition failed to list a number of plaintiff’s creditors whose judgments had been discharged. These judgments remained on the public records despite such discharge. Plaintiff became the judgment debtor of the defendants, G. P. Smith and Sheila Lemoine Smith.

The Smiths provoked a sheriff’s sale to satisfy their judgment. The validity of the Smith’s judgment against Ducote is not questioned. His debt to the Smiths was not one of those discharged in the bankruptcy proceedings.

Shortly before the sale was to take place plaintiff discovered that the discharged judgments, totaling over $170,000.00, had not been cancelled from the public records of Avoyelles Parish. These judgments were recorded prior to the Smith judgment. Plaintiff had been attempting to arrange financing so that he could bid on his property at the sale. LSA-C.C.P. art 2337 requires that property offered at a judicial sale cannot be sold if the price offered by the highest bidder is insufficient to discharge the costs of the sale and the mortgages, liens and privileges superior to that of the seizing creditor. Consequently, the presence of these judgments on the records prevented plaintiff from procuring the needed financing. Furthermore, he feared that if he did successfully bid on the property, that such bid might have been construed as an acknowledgement of his natural obligation to pay those judgments which remained on the records despite their discharge in bankruptcy.

Plaintiff then filed suit against the Clerk of Court, Sheriff of Avoyelles Parish, and his prior creditors who still had judgments recorded against him for discharged debts, asking that those judgments be cancelled and seeking a temporary restraining order and preliminary injunction to stop the scheduled judicial sale until those judgments were cancelled.

The temporary restraining order was issued on November 26, 1980. The hearing on the preliminary injunction was set for December 9, 1980. On December 3, 1980, the Smiths filed a petition to intervene filing a motion for the dissolution of the temporary restraining order. In that petition they sought damages and attorney’s fees for the wrongful issuance of the restraining order. The plaintiff met this intervention with exceptions of no cause of action and vagueness, which were overruled. A hearing of the motion for the dissolution of the restraining order was set for December 9, 1980.

The record reveals no extension of the temporary restraining order. Thus, by law and according to its own terms, the order expired on December 5, 1980.

Despite the fact that the temporary restraining order had expired, the minutes for December 9th reveal that the motion for dissolution of temporary restraining order and for damages for wrongful issuance of same was heard. Judgment was rendered dissolving the temporary restraining order and awarding the defendants-intervenors $1,500.00 in attorney’s fees for the wrongful issuance of that order.

The plaintiff appealed from the judgment and argues on appeal that the temporary restraining order was properly granted and should not have been dissolved. As we stated at the outset of this opinion, the merits of the trial court’s decision to dissolve the temporary restraining order cannot be considered on appeal. The only question presented is whether an award of attorney’s fees can properly be made where the temporary restraining order had expired at the time of the hearing on its dissolution. When a temporary restraining order has expired by law, before a hearing is had to determine if it should be dissolved, the issue is moot. Cook v. Ed Francis Chevrolet, Inc., 365 So.2d 1178 (La.App. 3rd Cir. 1978). Attorney’s fees have generally been denied in such cases. Copellar v. Yount, 361 So.2d 971 (La.App. 3rd Cir. 1978), writ ref’d, 363 So.2d 534 (La.1978); Lighthouse Life Ins. Co., Inc. v. Rich, 343 So.2d 444 (La.App. 3rd Cir. 1977).

Due to the particular circumstances of this case, however, we feel that an award of attorney’s fees including the services rendered at the hearing is appropriate. We come to this conclusion because in the colloquy between the court and plaintiff’s counsel, at the beginning of the hearing, the trial judge stated that an extension of the temporary restraining order had been granted. From that point forward the hearing proceeded as if the restraining order was still in effect. The minutes, judgment and actual transcript all reflect that the question of whether to dissolve the restraining order and whether any damages were suffered by the intervenors as a result of the issuance of the order, were the sole subjects of the hearing. Thus, since inter-venor’s counsel was led to believe that an extension had been granted, he had no apparent choice but to present his case for dissolution. Under these circumstances, and in the interest of fairness, we conclude that attorney’s fees should be awarded.

Having found that an award of attorney’s fees should be awarded, we turn to the question of whether the award of $1,500.00 is so excessive as to constitute abuse of the trial court’s discretion. An examination of the record reflects that the award of attorney’s fees by the trial judge was not an abuse of discretion.

For the reasons assigned, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff, Sam Ducote.

AFFIRMED.

BIENVENU, J. ad hoc, dissents and assigns written reasons.

BIENVENU, Judge ad hoc,

dissenting

I have no quarrel with the majority’s conclusion that an exception should be made in the instant case to the rule that damages are not awarded for dissolution of a temporary restraining order which has expired by its own terms when, as here, a hearing was compelled to determine whether the already expired order should be dissolved. Nevertheless, when the trial judge dissolves the order under such circumstance and awards attorney’s fees on the basis of its wrongful issuance, we must on appeal determine whether he was correct in so ruling even though no question exists about the dissolution.

While LSA-C.C.P. art 3612 makes it clear that there shall be no appeal from an order relating to a temporary restraining order, we must look to whether a temporary restraining order was wrongfully issued in considering an appeal of a judgment awarding attorney’s fees for services rendered in the dissolution of such an order.

LSA-C.C.P. art. 3608 clearly provides: “The court may allow damages for the wrongful issuance of a temporary restraining order ... on motion to dissolve . . . . ”

There are three issues, then, that we must consider:

1. Was the order dissolved?
2. If so, was it wrongfully issued?
3. If so, was the trial judge within his “much discretion” in his damage award?

Unless the first two questions are answered in the affirmative, no damages (including attorney’s fees) may be awarded. Plaintiff is not attempting to appeal the dissolution of the order; he simply argues that attorney’s fees are not due since the order was not wrongfully issued.

Our review extends to a resolution of each of the three issues in the order in which they are listed; and we must not proceed to the second unless the first is affirmatively answered, and the same rule applies as between the second and the third. There is no problem with the first; the order has been dissolved. I answer the second question in the negative, however, so I do not proceed to the third. I am satisfied, for reasons the enumeration of which here would serve little purpose, that the temporary restraining order was not wrongfully issued. I therefore feel that there is no entitlement to attorney’s fees in any amount.

I respectfully dissent.

      . LSA-C.C.P. article 2337 states:
      “If the price offered by the highest bidder at the first or subsequent offering is not sufficient to discharge the costs of the sale and the mortgages, liens, and privileges superior to that of the seizing creditor, the property shall not be sold.”

      . The record reveals that the plaintiff did not post bond until December 5, 1980, the day the restraining order was to expire. Thus, the restraining order was issued without security. This is not, however, made an issue on appeal.


author: SWIFT, Judge.

text:
    Margaret Voitier GASPARD, Plaintiff-Appellant, v. Michael Wayne GASPARD, Defendant-Appellee.
    No. 8286.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Robert C. Funderburk, Jr., Baton Rouge, for plaintiff-appellant.
    Everett & Everett, Glennon P. Everett, Crowley, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

The plaintiff and defendant were married in Acadia Parish, Louisiana, and established their matrimonial domicile there. They had a child, Michael Wayne Gaspard, II, who was born on January 8, 1979. On June 22, 1980, Mrs. Gaspard left the matrimonial domicile, allegedly because of the husband’s fault. She then instituted suit for separation from bed and board and for alimony and child support pendente lite in the total amount of $400.00 per month.

On September 22, 1980, the trial judge granted plaintiff a separation and permanent custody of the child. Based on a stipulation of the parties, he also ordered the defendant to pay plaintiff $175.00 per month for the minor’s support.

On October 3, 1980, Mrs. Gaspard gave birth to a second child, Jennifer June Gas-pard. Mrs. Gaspard then petitioned for an increase in child support and for alimony in the total sum of $500.00 per month. After a hearing the trial judge increased the previous award to $210.00 per month as child support and alimony. The plaintiff has appealed this judgment.

The sole issue before us is whether the amount awarded by the trial court for child support and alimony pendente lite should be increased; that is, did the trial judge abuse the discretion vested in him by increasing the award to only $210.00 per month?

Louisiana Civil Code Article 148 provides: “If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Thus, in making an award for alimony pendente lite the court must consider the needs of the spouse seeking alimony and also the other spouse’s means. Shepard v. Shepard, 334 So.2d 745 (La.App. 3 Cir. 1976). By analogy, the jurisprudence treats child support similarly to temporary support for the necessitous spouse. Frazier v. Frazier, 347 So.2d 73 (La.App. 2 Cir. 1977). The need for alimony must be proved and the amount awarded should be in proportion to the need and means and fair and just to each party. Levine v. Levine, 373 So.2d 1380 (La.App. 4 Cir. 1979).

The evidence in this case reflects that the husband’s take-home pay is $1,000.00 per month. However, he said his monthly expenses amounted to $1,134.00. Be that as it may, all of the items listed appear to be valid and reasonable. They include his living expenses, payments for family hospitalization insurance and other medical and dental expenses of the children, payments on a debt for the medical expenses incurred during the birth of the first child and payments on other debts incurred during the existence of the marriage. The husband testified that many of his creditors are allowing him to pay the minimum monthly amounts necessary to prevent their instituting suit.

The wife is unemployed. Her only income besides the previous award is $141.34 which she receives through her husband’s social security for the benefit of their son, who suffers from Downs Syndrome. She resides in her family’s guest house and it appears that they furnish much of her support. However, she testified that her monthly expenditures total $855.00.

Based upon the needs of the claimant spouse and the means of the other spouse, we are unable to say that the trial judge abused his discretion by increasing the child support and alimony pendente lite to only $210.00 per month. Therefore, we must affirm. Gravel v. Gravel, 331 So.2d 580 (La.App. 3 Cir. 1976).

We are mindful that ordinarily the obligation of a spouse to support the other necessitous spouse following a decree of separation from bed and board is not extinguished by the latter’s parents providing support. Huddleston v. Huddleston, 316 So.2d 1 (La.App. 3 Cir. 1975). However, in this case it is clear that the defendant is unable to pay any more than he already is paying. He is maintaining gainful employment, but his income is exhausted by his own reasonable living costs, providing medical care for the children and the payment of community debts.

For the foregoing reasons, the judgment of the district court which increased the amount of alimony pendente lite and child support to $210.00 per month is affirmed at appellant’s costs.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Lurnice LeBLANC, Plaintiff-Appellee, v. David LYONS, Defendant-Appellant.
    No. 8287.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Miller, Miller & Craton, John F. Craton, Crowley, for defendant-appellant.
    Dupuis & Mayers, Kenneth P. Mayers, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   DOMENGEAUX, Judge.

Lurnice LeBlanc Lyons (wife) and David Lyons (husband) were granted a judgment of separation in the captioned district court on January 17, 1979. During the pendency of those proceedings, the wife requested and was granted an injunction prohibiting the husband from alienating or encumbering the community property which they had acquired during the marriage. By judgment granted on November 7, 1980, the parties were divorced. Inasmuch as they had not entered into a community settlement, nor otherwise disposed of the community property after their legal separation, and had not indicated any immediate plans to do so after the divorce, the divorce judgment continued the injunction against the husband in full force. The trial judge’s order in this respect was done upon the request of the wife’s counsel.

The husband has appealed. The only issue presented for determination is whether the trial judge erroneously ordered that the previously issued injunction during the proceedings against him prohibiting alienation or encumbering of the community assets, be continued in the judgment of divorce.

In order for the wife to be entitled to injunctive relief of the kind granted her in the judgment of divorce, she must as a general proposition come under the umbrella of La.C.C.P. Art. 3601 or specifically, under La.C.C. Art. 149 or La.C.C.P. Art. 3944. Those laws provide respectively as follows:

La.C.C.P. 3601:
“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; ...”
La.C.C. 149:
“During the suit for separation, a spouse may, for the preservation of his rights, require an inventory and appraisement to be made of the community property and obtain an injunction restraining the disposition of the whole of the community or of specified things of the community property.”
La.C.C.P. 3944:
“Either party to an action for separation from bed and board or divorce may obtain injunctive relief without bond prohibiting the other party from disposing of or encumbering community property.”

It is our conclusion that the wife in this case is not entitled to the injunctive sanctions granted her in the divorce decree under either La.C.C. Art. 149 or La.C.C.P. Art. 3944 because those laws anticipate “during the proceedings” injunctive sanctions, and not such sanctions after the judgment of separation or divorce. Walker v. Walker, 157 So.2d 476 (La.App. 3rd Cir. 1963), affirmed in part, reversed in part, 246 La. 407, 165 So.2d 5 (1964); McAdams v. McAdams, 267 So.2d 908 (La.App. 1st Cir. 1972).

The judgment of separation granted to the parties on January 17, 1979, dissolved the community and vested each of them with an undivided one-half interest therein. The property forming the community ceased to exist as such. The parties became co-owners of the property. Neither party can alienate the interest of the other and there is neither necessity nor authority for an order continuing the “during the proceedings” injunctive sanctions against the husband, David Lyons. McAdams v. McAdams, supra; Walker v. Walker, supra; Fleury v. Fleury, 131 So.2d 355 (La.App. 4th Cir. 1961). See also 10 Louisiana Digest, Husband and Wife, &wkey;272, for the myriad cases setting out the status of the parties and their community property once the judgment of separation or divorce is pronounced.

If the wife is to prevail on this appeal she must do so under the authority of La.C.C.P. Art. 3601. To come under that Article one must show that irreparable injury, loss, or damage will ensue if an injunction is not granted. Additionally, in order to seek umbrage under that Article, one must be without an adequate remedy at law. The jurisprudence states an injunction to be an equitable remedy available to a party under C.C.P. Art. 3601, who is without an adequate remedy at law. West v. Winnsboro, 252 La. 605, 211 So.2d 665 (1968).

In this case the wife has failed to show that irreparable injury, loss, or damage will ensue in the event the injunction against her husband is not included in the divorce decree. She has an adequate remedy at law, i. e., a suit for partition as a co-owner of the former community property. Walker v. Walker, supra.

Nevertheless, the wife cites the case of Fuori v. Fuori, 334 So.2d 488 (La.App. 1st Cir. 1976) for the proposition that injunctive sanctions are proper even after judgment of separation or divorce. That case is distinguished. Fuori recognized that a husband or wife, even after separation or divorce, could obtain an injunction under C.C.P. Art. 3601 to prevent encumbering or alienating the former community property, but only upon showing irreparable injury, loss, or damage. The Fuori court then proceeded to find that the exigencies presented in that case were such that the wife proved irreparable injury. No such showing of irreparable injury is present in the appeal at hand even though the community property allegedly includes some movables, i. e., certificates of deposit, which conceivably could be “cashed in” by the husband. In case this would happen, the wife has her remedies against him. It is axiomatic that in order to show irreparable injury or harm, one seeking an injunction under La.C.C.P. Art. 3601 must prove that the loss alleged is one which cannot be adequately compensated in money damages or for which such damages cannot be measured by pecuniary standards. Succession of Vice, 385 So.2d 554 (La.App. 3rd Cir. 1980), writ denied October 20, 1980.

For the above and foregoing reasons it is ordered that the portion of the divorce decree granted November 7, 1980, which ordered that the restraining orders encumbering and prohibiting David Lyons from disposing of any community property be maintained in full force and effect, be and the same is hereby reversed and ordered deleted from said judgment. The judgment in all other respects is affirmed.

The costs of this appeal are assessed against appellee, Lurnice LeBlanc Lyons.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . The judgment of separation which was previously granted on January 17, 1979, did not provide for continuing the “during the proceedings” injunction.

      . The portion of the case for which it is cited herein was affirmed.


author: BIENVENU, Judge.

text:
    J. B. BOYDSTUN, Jr., Plaintiff-Appellant, v. Charles "Pat" JOHNSON, Defendant-Appellee.
    No. 8288.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiff-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-ap-pellee.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, presided as Judge Ad Hoc in this decision.

   BIENVENU, Judge.

Plaintiff building contractor and defendant owner entered into a contract for a concrete subterranean residence house. Defendant desired to build a house into the side of a hill and engage an architect, who associated a structural engineering firm, to draft plans and specifications. On December 12, 1978, the parties entered into a contract for $57,266.00 which called for plaintiff to construct the structural portion of the residence in accordance with such plans and specifications, defendant retaining responsibility for:

“The owner shall provide excavations, access road, fill under slab, rough excavation at footings, back fill and drain system.”

The contract provided for monthly billing. Construction apparently began promptly, and the first bill presented by plaintiff was on January 3, 1979 for $12,-000.00. On January 25, 1979, defendant paid $11,400.00 of this bill. Plaintiff again billed defendant on March 13, 1979 for $16,-233.00; $12,000.00 of this amount was paid on March 26, 1979. Defendant justifies the deficiencies on the basis of over-billing, which plaintiff denies. In any event, as a result of these deficiencies, plaintiff left the job, both parties employed attorneys, and an amended contract was entered into on June 25, 1979. This amended contract provided that plaintiff would submit bills to defendant’s architect, who would inspect the work for completeness, not quality, then certify it for payment to a representative of the bank where defendant had his financial arrangements, who would issue payment. $6,218.10 was paid to plaintiff concurrently with the amended contract and as provided thereby; and the next bill for $5,843.90 of August 21, 1979 was promptly certified and paid.

The evidence is vague as to the events of the next several months, but the next billing was not until March 20, 1980 for $11,-934.40 (to bring payment to $51,267.70 of the total $57,266.00 contract price, being the amount plaintiff stated to be completed as of that date). For some reason, the architect calculated the project as being complete, deducted amounts he considered necessary to correct deficiencies in waterproofing, a damaged skylight and concrete rework in the sum of $8,310.20, took into account the amount previously paid, and certified payment in the amount of $9,622.50. When plaintiff presented the certificate for payment, however, he learned that defendant had withdrawn all monies from the bank and that there accordingly were no funds available for payment. Defendant had become increasingly disenchanted with plaintiff’s performance and knew that certification and payment would be made on the basis of completion. Not being satisfied with the quality and not wanting to pay until satisfied, he intentionally withdrew the money to ensure that payment could not be made. This action was consistent with a letter he had sent plaintiff on November 28, 1979 informing him that no more money would be paid until “the house is 100% complete”.

The major problem in the Spring of 1980 was with the waterproofing, but when plaintiff submitted his final bill on April 30, 1980 for the unpaid portion of the contract price, $17,932.70 (which included amounts previously certified and unpaid), it was certified for payment by the architect on May 9, 1980. The architect had personal reservations about the quality of the waterproofing work, but since the work had been performed and the manufacturer’s representative apparently had confidence in the system as installed, he approved the bill for payment. Of course, when the certificate was presented at the bank, there were no funds available for payment.

This litigation followed shortly afterward, plaintiff seeking the unpaid portion of the contract price and some allegedly agreed upon extras, in the total amount of $20,475.09; with defendant reconvening for an even larger amount in set-offs. After trial, the presiding judge found that plaintiff was entitled to the amount sued upon, but that defendant was entitled to set-offs in an identical amount. Plaintiff appealed, complaining of the set-offs, and defendant answered the appeal, not complaining about the award to plaintiff, but contending that he was entitled to an additional $4,799.91 in set-offs.

In his reasons for judgment, the trial judge correctly stated the applicable law, as follows:

“It is an uncontroverted principle, however, that contractors are held and bound by the law to do their job in a workmanlike manner and upon failing to do so, they are responsible for the amount required to remedy the defects they create. CC-2769, Merrydale Glass Works, Inc. v. Merriam, 349 So.2d 1315 (La.App. 1st Cir., 1977).
“However, the owner cannot simply take it upon himself to refuse to pay amounts admittedly owed the contractor.”

Stated another way, when there has been substantial completion and performance of a contract, the contractor is entitled to the contract price. If there is unfinished or defective work, the owner is entitled to reduce the contractor’s recovery by the amount of the cost of completion or correction. The burden of proof of substantial performance is on the contractor; the burden of proof of unfinished work or defects and the cost of completion or correction is upon the owner. Cortiza v. Rosenblat, 291 So.2d 425 (La.App. 4th Cir. 1974); Jim Walter Corporation v. Laperouse, 196 So.2d 539 (La.App. 3rd Cir. 1967); North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1957).

In applying the foregoing principle, however, the trial court in his reasons for judgment did not set forth the calculations he used to arrive at a set-off figure which equals to the penny the amount he found due to the contractor. We are unable to add up any combination of set-off figures adduced by the evidence which total the amount found to be due. We accordingly have no way of knowing whether the trial judge made a proper application of the previously announced legal principle which governs this situation in resolving the issues presented. We must, therefore, resolve these issues ourselves; and we will proceed to the task by a consideration of the evidence in light of the established law.

Initially, there is no real dispute between the parties that $20,475.09 is due the plaintiff, and we agree with the trial court that the evidence supports a conclusion that the plaintiff has borne his burden of proving substantial completion and performance of the contract. The strongest evidence in this regard is a vicarious admission on the part of defendant. The architect, defendant’s agent, certified that the work was complete and authorized payment of the balance due on the contract price. Huber v. Gordy, 9 La.App. 384, 120 So. 493 (Orleans App. 1928). Defendant’s structural engineer was also of the opinion that the job was completed as per the plans and specifications. We will now consider the items of set-off claimed by defendant and see whether he has proven them and the cost of remedying them. We must do this item by item for ourselves for we have no way of knowing precisely which items were found by the trial judge to have been proven, nor the cost of remedying assigned to each one. We cannot, therefore, say with much specificity whether he erred or was correct. We will just have to reach our own conclusions, for the most part, as to whether the defendant met his burden of proof. LSA — C.C.P. art. 2164. Popich v. Fidelity and Deposit Company of Maryland, 231 So.2d 604 (La. App. 4th Cir. 1970).

The trial judge specifically found a defect in the form of wasted concrete spilled down the center of the driveway to the house all along its length. While there is no dispute that such a situation existed we must disagree that the evidence justified a finding that this condition is attributable to the plaintiff. While it is correct that a cement supplier spilled concrete as claimed while making deliveries of same to the job site for plaintiff’s use in performing his duties under the contract, still the supplier was not employed by plaintiff nor had any other connection with plaintiff. Defendant had specified which supplier to use and was paying that supplier directly, at least initially. Apparently the concrete spilled naturally as the trucks climbed the incline of the driveway. There was no other way to transport the concrete to the job site, and the construction of the driveway (or access road), which was done prior to the hauling of the concrete, was the responsibility of defendant under the contract. Any claim that defendant might have with regard to this item is against the persons responsible for the damage, not against plaintiff. This item cannot be allowed.

Defendant next complains that the floor slab is not level. The evidence is uniform that it is not. Plaintiff contends that there is no “structural” problem. While plaintiff contracted to do the structural portion of the residence, such undertaking involves more than putting everything in place. The performance must be in a workmanlike manner and in accordance with accepted building practices. Defendant’s experts, Edward C. Sewell and Marbry Jones, both building contractors, testified that the slab was not so constructed. The structural engineer, Kerry LaBauve, tended to confirm this. There is no substantial evidence to the contrary. An offset should be allowed for this item in the amount of $2,154.00, which is an average of the cost figures given by Mr. Sewell and Mr. Jones, there being no other figures available.

The next item is the washing away or deterioration of material under the porch slabs. While defendant has proven that this has occurred, he has not proven that it is the fault of plaintiff. Under the contract, defendant was responsible for the fill under the slab and for the drainage system. Defendant engaged the plumber. Mr. La-Bauve, defendant’s structural engineer, felt that this problem was logically caused by the drainage system, although the condition was naturally not in accordance with the specifications. Defendant has failed to meet his burden of proof with respect to this item.

There was evidence that steel was showing in the front sills, but if evidence was presented as to what the cost of remedying that defect is, this Court has been unable to find it. The item has not been proven.

Defendant complains of waviness, flatness, etc. on the columns, skylight and fountain. The evidence is that these conditions exist and that at least some of these areas will be exposed. Plaintiff likewise seeks to dismiss these defects as being cosmetic in nature. Plaintiff again loses sight of his obligations under the contract, and specifically the language in Section 320-3.8 of the specifications, which reads in part:

“FORMWORK: Forms shall be designed, constructed, and maintained so as to insure that after removal of forms the finished concrete members will have true surfaces free of offset, waviness or bulges and will conform accurately to the indicated shapes, dimensions, lines, elevations, and positions.”

For the cost of remedying, we will again use the average of the figures provided by Messrs. Sewell and Jones, of $2,315.00.

The most difficult item to deal with, both in terms of value and proof, is that of the waterproofing. Plaintiff submitted a sample of the material he proposed to use, Melnar, to the architect who passed it on to Mr. LaBauve, and it was found to be acceptable. It should be noted here that no one involved in this matter, with the possible exception of Hal Robinson, the manufacturer’s representative, knows much about waterproofing, especially for subterranean residences. The specifications at Section 342-2.3 call for the owner to provide supervision by the manufacturer’s representative for the first 25% of the waterproofing installation. This was not done. Section 342-1.2 provides that the waterproofing work shall be performed by experienced workmen who are regularly engaged in that type of work. Plaintiff failed to do this, even though this was the first subterranean building he had ever constructed. When plaintiff submitted his bill of March 20, 1980, the architect, George Minturn, discovered when he went to the construction site to inspect prior to making his certification, what he correctly considered to be a problem with the waterproofing in that it was not adhering to the surface and leaked. He declined to certify payment attributable to the waterproofing, instructed plaintiff to go no further for the time being and arranged for Mr. LaBauve and Mr. Robinson to meet with he and plaintiff at the job site. Mr. Robinson found deficiencies, notably that a roofing mastic had been used to accomplish the adhering after plaintiff had used up all the primer he had on hand. There was other non-compliance with the manufacturer’s brochure instructions. Mr. Robinson gave plaintiff instructions on how to correct the improprieties, and on his next visit Mr. Robinson was satisfied that plaintiff had done so except in several very minor particulars which he pointed out to plaintiff, and which plaintiff insists he then corrected. Robinson then made it absolutely clear that in a “below grade” installation such as this, that it was vital that backfilling be done immediately to ensure the application of the pressure necessary to ensure the permanence of the adherence and the avoidance of leaks. Although Mr. Robinson apparently lacked sufficient conviction to reduce any assurances to writing as requested of him by Mr. Minturn, the architect nevertheless made the recommendations known to defendant, whose responsibility it was to backfill. . Plaintiff’s attorney twice informed defendant in writing of the recommendation for immediate backfilling. Defendant was understandably reluctant to backfill without a bond or a guarantee, being concerned that if the waterproofing installation was defective, the job and expense of remedying the situation would be greatly magnified after backfilling. The contract did not require plaintiff to furnish a bond or a guarantee. Mr. Minturn had advised defendant to have a waterproofing expert inspect the installation immediately, if he wanted to, because of the need to backfill. Defendant did not secure such an expert, saying he was unable to, and in fact did not have one to testify at the trial. As of the date of trial, the backfill had still not been accomplished, and at that time the waterproofing was indeed defective. The question is why? Improper installation or failure to backfill? Defendant’s experts, Sewell and Jones, both point to defects, but they first observed the installation only a short time before trial and after the effect of the lack of backfilling was present, and they both admit they know very little about this kind of waterproofing. They provided the only figures presented on the cost of remedying the situation, but again admit that they cannot positively state that the remedying must be done, and they merely obtained prices from outside sources, not as a result of their own independent knowledge of what needed to be done. Mr. Min-ium found the installation to be in the same essential condition at the time of trial as when he first observed it in March of 1980. Of course, he admittedly is not very conversant with waterproofing, and it is not known what corrective effect the backfill would have had. Mr. Robinson certainly feels, though with how strong a conviction is questionable, that the backfilling would have had a corrective effect; and he feels the reason for the present condition of the waterproofing is the failure to have timely backfilled. Defendant has the burden of proof and by his own admission no expert testified that there was anything wrong with the waterproofing.

This court understands defendant’s fears and appreciates his reasons for not backfill-ing. His failure to do so, however, has worked against him in meeting his burden of proof. We are unable to conclude from the evidence that the waterproofing installation was defective.

Lastly, defendant claims that the roof is not level. Mr. Jones so testified and it was not contradicted. The fear is that if the roof is not levelled, water seeping through the overlaid soil could collect and perhaps leak through the roof if the waterproofing is defective. On the other hand, the roof has no slope (it was designed that way), so it can be argued that water would collect and stand in any event. Mr. LaBauve testified there was no structural problem, and cosmetically there would be no problem as the roof is designed to be covered with dirt. The threat of leakage due to defective waterproofing is speculative. Defendant has failed to meet his burden of proof with respect to this item.

In summary, we find that plaintiff, J. B. Boydstun, Jr., is entitled to Judgment on the principal demand in the amount of $20,-475.09; and that defendant, Charles “Pat” Johnson, is entitled to Judgment on his reconventional demand for set-offs in the amount of $4,469.00. Having come to those conclusions, we hold that the amount due Boydstun by Johnson on the contract sued on is the reduced amount of $16,006.09.

For the reasons assigned, the judgment of the trial court in favor of Charles “Pat” Johnson in the amount of $20,475.09 is amended to the reduced amount of $4,469.00; in all other respects, the judgment is affirmed.

This court feels that the cost of this appeal should be shared equally between the parties.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.


author: GUIDRY, Judge.

text:
    Celeste LANDRENEAU, Plaintiff-Appellant, v. Luther C. GRANGER et al., Defendants-Appellees.
    No. 8291.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rozas, Manuel, Fontenot & McGee, Daniel J. McGee, Mamou, for plaintiff-appellant.
    Clanton & Johnson, John W. Johnson, Eunice, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

Plaintiff, Celeste Landreneau, widow of Clifford J. Granger, instituted this suit against defendants, Luther Charles Granger (plaintiff’s son) and Roland Smith (plaintiff’s son-in-law) seeking a declaratory judgment decreeing that a power of attorney and management contract executed by the above parties is revocable at the will of the principal. Plaintiff also seeks judgment requiring defendants to render a full accounting to plaintiff of their management of her properties. The trial court, without assigning written reasons for judgment, concluded that the agreement in dispute was not revocable and rendered judgment in favor of the defendants denying to plaintiff all relief sought. Plaintiff appeals from that judgment.

The facts of the instant case are undisputed. On February 25, 1978, shortly after the death of her husband, Mrs. Lan-dreneau and the defendants executed an agreement entitled, “Power of Attorney and Management Contract”, wherein plaintiff appointed defendants to be “her true and lawful agents and mandataries.” The aforesaid agreement, in pertinent part, provided that the defendants were empowered:

“1. To receive and grant acquittance for all monies and properties payable to her, and to that end to endorse and negotiate checks, and bills of exchange made payable to her, or to the said succession or the said decedent;
2. To pay, settle, and compromise all obligations due by her or the said succession, and, to that end, to withdraw monies from any bank or other depository;
3. To grant agricultural leases for a period not in excess of three (3) years on terms determinable solely by the said mandataries;
4. To grant oil, gas, and mineral leases, grant mineral servitudes, sell royalty interests, grant mineral exploration privileges, execute for them unitization and pooling agreements, and sell timber on terms determinable solely by the manda-taries;
5. To incur obligations for the maintenance, upkeep, and improvement of the said property, not including the construction of buildings thereon;
6. To grant rights-of-way and servi-tudes for pipelines, telephone, telegraph, and electric transmission poles, canals, streets, sidewalks, passage, drain, and view;
7. To institute and defend such actions as the management of her properties may require to be instituted or defended;
8.Generally, to conduct, manage, and transact all her affairs and business related to the saúd property, in her place and stead, subjeLt ip the following limitations: - .
1. The mandataries\ñh< have~ no power to alienate or mértgage‘Nike said properties, except as above expreslS^t^. given.
2. The mandataries shall act jointly and concurrently in the exercise of their powers hereunder, and no act of one alone shall be effective without the concurrence or subsequent ratification of the other, but one may delegate his authority to the other.
3. This mandate is irrevocable, being coupled with an interest, the Agents undertaking to manage the said properties as prudent administrators for a period of -20- years, in return for which the Principal \ elinquishes control thereof to the extent hereinabove stated and limits her dominion over same as follows:
a. The Principal can neither alienate nor mortgage any of her property without the concurrence of the Agents.
b. The Principal can incur no indebtedness, however, secured, in excess of $1.000.00 without the concurrence of the Agents.”

The power of attorney and management contract by particular provision, affects:

“1. All of the properties acquired by her from the Succession of Clifford J. Gran-ger and their former community, whether directly or by virtue of donations thereof from other parties at interest.
2. All of the Principal’s immovable properties, however acquired.”

Some 16 months subsequent to the signing of the agreement, plaintiff decided that she desired to undertake the management of her own affairs and property and notified defendants through their legal counsel of her decision to revoke the aforesaid mandate agreement. Defendants’ failure to respond to plaintiff’s demand iresulted in the filing of the instant suit. Defendants answered plaintiff’s petition alieiging that the mandate was valid ah<^ enííorceable and could not be reyokefL j^ov.-'-the will of the principal (plaintiff/ herein). We observe that tjj&Vrial recolrd contains extensive tes-li-Bifony pertaining 'to the manner in which plaintiff’s affairs were managed by defendants pursuant to the disputed agreement. This testimony was admitted over objection of plaintiff’s counsel as being irrelevant and immaterial to the issue of revocability or non-revocability of tiré agreement. We conclude that such testimony was clearly inadmissible on that issue, however, such error was harmless.

The principal issue presented on appeal is whether or not the disputed power of attorney and management contract is revocable at the will of the principal.

The Louisiana Civil Code provides, in pertinent part, as follows:

Article 3027 provides:
“The procuration expires:
By the revocation of the attorney.
By the attorney’s renunciation of the power.
By the change of condition of the principal.
By the death, seclusion, interdiction or failure of the agent or principal.
But the powers of attorney by public act or by writings under private signature, or by letter, to transfer on the books of stock corporations, bonds or shares of stock in said corporations, shall be irrevocable, and shall not expire by the death, seclusion, interdiction or failure of the principals, where the said bonds or shares of stock have been previously sold to the persons holding the said powers of attorney, for value received, and said facts are set forth in such powers of attorney.”
Article 3028 provides:
“Except in the case of irrevocable powers of attorney, as described in the preceding article, the principal may revoke his power of attorney, whenever he thinks proper, and if necessary, compel the agent to deliver up the written instrument containing it, if it be an act under private signature.”

Generally, mandate agreements are revocable at the will of the principal except in those special instances of irrevocable powers of attorney as provided in LSA-C.C. Art. 3027. See LSA-C.C. Art. 3028; Francis v. Bartlett, 121 So.2d 18 (La.App. 2d Cir. 1960); Neiman-Marcus Company v. Viser, 140 So.2d 762 (La.App. 2d Cir. 1962); Alphonse Brenner Company, Inc. v. Dickerson, 283 So.2d 849 (La.App. 2d Cir. 1973); Bown v. Holland, 392 So.2d 726 (La.App. 3rd Cir. 1980). However, our jurisprudence has established an exception to that general rule which is to the effect that if a mandatary acquires an interest in the property that is the subject of the mandate, such that he may deal with it in his own name, the mandate is irrevocable. LSA-C.C. Art. 3027; Marchand v. Gulf Refining Company of Louisiana, 187 La. 1002, 175 So. 647 (1937); Eduardo Fernandez Y. Compania v. Longino and Collins, 199 La. 343, 6 So.2d 137 (1942); Robinson v. Hunt, 211 La. 1019, 31 So.2d 197 (1946); Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir. 1962.)

Defendants urged in the trial court that the agreement in dispute fell within the aforesaid jurisprudential exception. Although the trial judge failed to assign written reasons for his decision, we assume that he agreed with defendants’ contention. After a careful review of the record and the applicable jurisprudence, we conclude that the agreement at issue does not constitute a mandate coupled with an interest, but rather, is merely a simple mandate agreement revocable at the will of the principal. In Marchand, supra, the Louisiana Supreme Court, quoting from the case of Fowler v. Phillips, 159 La. 668, 106 So. 26, 27, stated:

“And the description of an irrevocable power of attorney, as given by our Code (R.C.C. art. 3027), is substantially the same as that known to general jurisprudence as a power ‘coupled with an interest’. Thus:
“ ‘To constitute a power coupled with an interest, a property in the thing which is the subject of the agency or power must be vested in the person to whom the agency or power is given, so that he may deal with it in his own name; such that in the event of the principal’s death the authority could be exercised in the name of the agent; and hence if the interest of the agent is not such as to enable him to execute the power in his own name, it is not such an interest as precludes termination of the relation by revocation.’ 2 Corpus Juris, p. 531, Verbo, ‘Agency,’ § 155.
“This definition has been approved, in effect, in Louque v. Dejan, 129 La. 519, 56 So. 427, 38 L.R.A.(N.S.) 389, wherein this court said:
“ ‘We are led at this point to the inquiry: What is a power coupled with an interest?
“‘We find a ready answer by Chief Justice Marshall, in Hunt v. Rousmanier, 8 Wheat. (174), 178, 104, 5 L.Ed. 589. It is that the power delegated to collect, and the interest of ownership in the property, are vested in the same person.’ ”

Recently, our court in Bown v. Holland, 392 So.2d 726 (La.App. 3rd Cir. 1980), in addressing the issue of what constitutes a mandate coupled with an interest, contrasted the facts before it with those of Robinson v. Hunt, supra. The mandate agreement in Robinson v. Hunt, supra, was described by the court as follows:

“This document, as we have previously pointed out, constituted and appointed Caplow agent and attorney in fact with full right, power, and authority, among other things, to negotiate for and settle all claims in and to the real property, oil, gas, and other mineral rights in the lands known as the Pinhook Plantation, and with reference to this property to execute and sign deeds, etc. It then conveyed to said agent, Caplow, with full warranty of title an undivided 20 per cent in all the oil, gas, and other minerals in the same property concerning which he was given the power and authority to act for them and in their behalf as agent. The consideration was named as services rendered by Caplow and other good and valuable consideration, receipt and sufficiency of which were acknowledged by each principal.” (Emphasis added)

The Bown court noted that the agreement before it was significantly different from the mandate in Robinson v. Hunt, supra, and was therefore revocable at the will of the principal. Specifically, the agreement at issue in Bown did not convey title to a present interest that the mandatary could deal with in his own name. In the instant case, the agreement at issue clearly does not convey or purport to convey a present interest as in Robinson v. Hunt, supra, or even a contingent interest as in Bown v. Holland, supra, rather, such agreement makes no conveyance whatever of any interest in the subject property to the manda-taries. Additionally, the language of the contract clearly provides that defendants do not have the right and power to deal with the plaintiff’s properties in their own name. Further, the mandataries were given no power or authority to alienate or mortgage plaintiff’s properties.

Although the power of attorney and management contract contains language designating the agreement as a mandate coupled with an interest and that it is irrevocable, such language is of no legal effect. In Marchand, supra, the Court noted,

“The fact that it was stipulated in the mandate that it was irrevocable could not avail since the very nature of the transaction shows that no interest in the property itself was conveyed to Messrs. Tracy and Neuhauser.”

We conclude that the long-standing jurisprudential exception to the general rule of revocability of mandate agreements does not require further elaboration. We determine that the contract in dispute is nothing more than a simple mandate agreement which is revocable at the will of the principal as provided by statute.

For the reasons assigned, the judgment of the trial court is reversed and set aside and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Celeste Landreneau, and against defendants, Luther Charles Granger and Roland Smith, decreeing that the agreement entered into by and between such parties entitled “Power of Attorney and Management Contract,” dated February 25, 1978, passed before Donald J. Tate, Notary Public, be and the same is hereby declared to be a Power of Attorney, revocable at the will of the principal, Celeste Landreneau. It is further ordered, adjudged and decreed that plaintiff’s right to require a full accounting from Luther Charles Granger and Roland Smith, in connection with their management of her properties under the agreement herein referred to, is reserved to her.

It is finally ordered, adjudged and decreed that defendants pay all costs incurred at the trial level and on appeal.

REVERSED AND RENDERED.

      . No mention is made in the judgment of plaintiffs demand for an accounting. The judgment of the trial court simply maintained the validity of the power of attorney and management contract and dismissed plaintiff’s suit at her cost.

      . In Bown v. Holland, supra, the terms of the disputed agreement as set out in a letter dated December 1, 1978 from plaintiff to defendants provided in pertinent part as follows:
      “I have informed you of a certain mineral royalty interest you may have claims to in a certain 40 acre tract of land (being SE/NE of Sec. 24, 11S-6W, Jefferson Davis Parish, Louisiana) which your father, Vernon Holland, sold to Elmer Hayes on February 14, 1966.
      “You have agreed to and hereby engage me exclusively to try to assert such royalty interest claim in your behalf, and I have agreed to make a bonafide best effort attempt to do so at my cost and expense, provided that at my discretion I may discontinue such efforts, and so notify you, and in such event neither of us shall thereafter have any further obligations hereunder.

        “In consideration for my services and expense, you agree to give me one-half of whatever royalty interest I am able to recover, confirm or establish for you, including one-half of any money recovered relating to past production attributable to such interest.

      “By this letter you also give me full legal authority to represent you and make demands in your behalf in this matter, and you agree to promptly execute any formal docu'ments that might become necessary to accomplish the purposes of this agreement.” (Emphasis ours)
      After defendants signed the agreement, plaintiff searched the parish public records and prepared and submitted to the unit operator a written demand for payment in which he set out defendants’ chain of title to the royalty. Subsequently, defendants employed an attorney to assert their claim and notified plaintiff of their intent to discharge him. Plaintiff brought suit contending that the contract was enforceable and sought full compensation for his services. This court concluded that the contract was merely a simple mandate agreement, therefore, revocable at the will of the principal.


author: C. THOMAS BIENVENU, Jr., Judge.

text:
    George W. CROOKS, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY.
    No. 8293.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Ralph W. Stephenson, Baton Rouge, for defendant-appellant.

      John R. Contois, Marksville, for plaintiff-appellee.
    Before CUTRER, STOKER, and BIEN-VENU, JJ.

         Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, presided as Judge Ad Hoc in this decision.

   C. THOMAS BIENVENU, Jr., Judge.

This is an appeal by the Louisiana Department of Public Safety from a judgment of the district court granting plaintiff a restricted driver’s license under the provisions of LSA-R.S. 32:415.1. The issues on appeal are whether plaintiff’s petition states a cause of action, and if so, whether a restricted license may be granted under the facts of this case.

The record shows that plaintiff was convicted twice of driving while intoxicated. His driving privileges were suspended for a period of one year following his second conviction in June of 1978. In May of 1980, plaintiff was convicted of driving under a revoked license. As a result of that conviction, plaintiff’s driving privileges were suspended for an additional year. On October 3, 1980, plaintiff brought this action for a restricted license, alleging only that his driver’s license had been revoked by notice of the Department of Public Safety dated May 25,1979, and that the revocation of his license would deprive him of the necessities of life and prevent him from earning a livelihood.

The department eorreetly argues that plaintiff’s failure to allege that this is his first suspension is fatal to his claim. Sibley v. Louisiana Department of Public Safety, 385 So.2d 505 (La.App. 1st Cir. 1980). A restricted license for economic hardship can only be issued where the applicant’s driver’s license has been suspended, revoked, or can-celled “for the first time only” under LSA-R.S. 32:414 B, C, D, E and LSA-R.S. 32:415. LSA-R.S. 32:415.1 A(l); Fusilier v. Department of Public Safety, 389 So.2d 803 (La. App. 3rd Cir. 1980); Johnson v. State, Department of Public Safety, 390 So.2d 925 (La.App. 2nd Cir. 1980); Sibley v. Louisiana Department of Public Safety, supra.

Under the facts set out above, plaintiff cannot truthfully allege that this is his first suspension. There is therefore no need to grant him permission to amend his pleadings so as to state a cause of action.

For the reasons assigned, the judgment of the trial court is reversed, and judgment is hereby rendered in favor of the State of Louisiana, Department of Public Safety, dismissing plaintiff’s suit. The costs of both the trial court and this appeal are to be paid by plaintiff.

REVERSED AND RENDERED.

      . The transcript does not reflect the reason why plaintiff’s driving privileges were suspended at that time. However, in its answer to the petition, the department alleged that because plaintiff hád not surrendered his driver’s license, the one year suspension did not begin until August 19, 1979 when it expired.


author: CUTRER, Judge.

text:
    James BOND and Ann Bond, Plaintiffs-Appellants, v. George and Mildred GREEN and J. B. and Freddie Jo Powell, Defendants-Appellees.
    No. 8295.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Sturgeon & Gore, Brent S. Gore, Ferri-day, for plaintiffs-appellants.
    Norman Magee, Ferriday, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

James and Ann Bond filed a rule to evict George and Mildred Green and J. B. and Freddie Powell from the following described property:

“LOTS 13, 14, 15, and 16 of Hedges Landing Lake Lots in Section 5, T5NR7E, Concordia Parish, Louisiana, as per plat by James H. Tooke, Reg. Land Surveyor # 3735 recorded in Plat Cabinet L. Envelope 150 B, Document Number 142064, of the Records of Concordia Parish, Louisiana.”

The plaintiffs alleged that defendants were occupying the property without a lease and that the purpose of defendants’ occupancy had ceased. In the alternative, the plaintiffs pleaded that, in the event it was determined that the defendants had a right to occupy the premises, the court should define the boundary of such occupied land. The defendants filed no pleading.

The trial court rendered judgment in favor of defendants, George and Mildred Green, recognizing that they had a usufruct over the following described property:

“Lots 13,14,15 and 16 of Hedges Landing Lake Lots in Section 5, T5NR7E, Con-cordia Parish, Louisiana, as per plat by James H. Tooke, Reg. Land Surveyor # 3735 recorded in Plat Cabinet L, Envelope 150 B, Document Number 142064, of the Records of Concordia Parish, Louisiana and specifically as designated on plaintiff’s exhibit number 6.”

The court further ordered the Greens to reimburse the plaintiffs, James and Ann Bond, for taxes previously paid in the amount of $24.89. The court ordered the Greens to pay taxes for 1980 and future taxes. Plaintiffs appealed. We affirm.

The issues presented on appeal are:

(1) Whether, under the facts, the Greens’ usufruct had terminated; and
(2) If such usufruct is still in effect, whether the trial court erred in its designation of the extent of property subject to the usufruct.

WHETHER THE USUFRUCT TERMINATED

The facts are generally undisputed. In 1966, George and Mildred Green sold to Lloyd Love a tract of land containing approximately 55 acres of land. The instrument by which the property was sold contained the following reservations:

“Vendors reserve unto themselves the usufruct of the house in which they now reside, the small house situated immediately on the west side of their residence and the yards surrounding the said residence.”

Mrs. Green, 76 years of age, testified that following the sale to Lloyd Love in 1966, they continued to live in the larger of the two structures. She stated that at the time of the sale to Love, both structures were in bad shape or dilapidated. The Greens attempted to make repairs to the larger house where they resided. They changed the floor on the porch on two occasions. They installed bath fixtures and made other repairs, but the overall condition of the house could not be appreciably improved. The structural portions of the house had deteriorated to such an extent that the house could not be safely lived in.

The small house was not occupied and likewise was in a dilapidated condition when the sale was made to Love. The condition of this structure deteriorated to the point that it was falling down. Mrs. Green stated that in approximately 1976, she had her son-in-law remove the structures. This was done by pushing them down with a tractor. Mrs. Green explained the reason for removing the structures as follows:

“Q. What was the reason you tore the houses down?
“A. The reason? Well, the termites got in the seals [sic] and ate the seals [sic]. You know how termites will do. And the floors in the back of the house had fallen down about that far from the walls, and I didn’t want the house falling down and injuring one of my grandchildren.
“Q. The termites had done great structural damage to the house.
“A. Yes. Both of them, as far as that’s concerned.”

After the removal of the structures, two mobile homes were moved on to the property and placed approximately in the location where the houses had been situated. The Greens occupied one mobile home and defendants, J. B. and Freddie Powell, daughter and son-in-law of the Greens, occupied the other.

Mrs. Green’s daughter, Freddie Powell, testified that she and her husband moved a mobile home onto the property in order to assist her mother in earing for Mr. Green who was 76 years old. He had been sick for several years and was an invalid at the time of trial. The income of the Greens was limited to Social Security payments and food stamps ($439.00 per month). Mrs. Powell testified that the structures were old and literally had decayed and had become termite infested to the extent that they were falling down. She stated that at the time of the sale to Love, the structures were in very bad shape. She testified that her mother and father attempted to repair same but such repairs did not impede the continuing deterioration of the structures. She classified the larger house as not livable and a health hazard.

Lloyd Love testified that at the time he purchased the property both structures were in terrible shape. He stated that neither house was livable at that time. For this reason he attached no value to the structures when he purchased the property. Love stated that he wanted the Greens to have a place to live for the remainder of their lives, and had considered removing the structures and building a new house for the Greens to live in. Due to a financial problem, however, he could not carry out his intention. He stated that the Greens had his permission to remove the deteriorated structures.

Plaintiffs urge that, under the facts presented, the usufruct should be considered terminated on the ground that the property subject to the usufruct has been totally and permanently lost. Plaintiffs rely principally upon LSA-C.C. art. 613. This article reads as follows:

“The usufruct of nonconsumables terminates by the permanent and total loss, extinction, or destruction through accident or decay of the property subject to the usufruct.” (Emphasis ours.)

Plaintiff’s position is without merit.

Article 613 terminates the usufruct if the total usufruct is lost through decay. In the case at hand, the usufruct extended to not only the two houses but the yards surrounding same.

The facts are undisputed that the two houses were in unlivable, decayed condition with no value at the time the usufruct came into existence. The attempts of the Greens to repair the structures proved to be an exercise of futility. The removal of these structures did not effectuate a total loss of the usufruct. This was a partial loss of the usufruct. The usufruct remained on the land or yards surrounding the structures.

Paragraph (d) of the Comment to article 613 explains this position as follows:

“The usufruct terminates only if the loss is total. Thus, if the usufruct is established simply on a building, and this building is destroyed completely, the usu-fruct terminates .... If the loss is only partial, the usufruct continues and is exercised on whatever remains of the thing. C.C. art. 614 (1870). Thus, if the usufruct is established ‘upon an estate of which the building is a part, the usufructuary shall enjoy both the soil and the materials.’ . . . . ” (Emphasis ours.)

Since the loss of the structures was due to decay of only a part of the usufruct, and not a loss of the total usufruct, the trial court correctly held that the usufruct continued on the remaining land.

Plaintiffs further urge that the Greens committed waste or neglected to make ordinary repairs or abused their enjoyment of the usufruct, and under LSA-C.C. art. 623, the usufruct terminates.

This position of the plaintiffs is likewise without merit. The facts clearly reflect that these structures were old and decayed. A usufructuary is not bound to restore property that has been destroyed because of age. LSA-C.C. art. 583 provides, in part, as follows:

“Neither the usufructuary nor the naked owner is bound to restore property that has been totally destroyed through accident or because of age.”

Finally, the plaintiffs contend that the defendants’ failure to pay the property taxes on the land they occupied entitled the plaintiffs, as naked owners, to terminate the usufruct. LSA-C.C. art. 584 places the obligation to pay the property taxes on the usufructuary but does not provide for termination of the usufruct upon failure to meet this obligation. That article reads:

“The usufructuary is bound to pay the annual charges imposed during his enjoyment on the property subject to the usu-fruct, such as property taxes.”

This article clearly gives rise to an obligation on the part of the usufructuary to pay the taxes, but if the naked owner has paid the taxes he has only an action against the usufructuary for reimbursement, rather than a right to terminate the usufruct. We are buttressed in this opinion by the comments to that article. Comment (e) reads, in pertinent part, as follows:

“The naked owner, in order to avoid a tax sale of his property, may pay the taxes due by the usufructuary and bring against him an action for reimbursement.

Consequently, the trial judge was correct in ordering the Greens to reimburse the plaintiffs for back taxes. He also correctly concluded that the failure to pay the taxes was not a ground for termination of the usufruct.

Finally, we turn to the question regarding the extent of the property subject to the usufruct. Plaintiffs argue that the trial judge was erroneous in allowing the testimony of Lloyd Love as to the area covered by the Greens’ usufruct. Plaintiffs argue that this testimony is parol evidence used to alter an authentic act. Again we disagree.

The general rule of law under our Civil Code art. 2276 is that parol evidence cannot be admitted to contradict or extend what is contained in a written instrument. However, where the instrument contains ambiguity, the court may resort to extrinsic evidence to clarify the ambiguity by showing the intention of the parties. Mathieu v. Nettles, 383 So.2d 1337 (La.App. 3rd Cir. 1980), writ den., 390 So.2d 202 (La.1980); Bostick v. Foret, 351 So.2d 238 (La.App. 4th Cir. 1977), writ den., 352 So.2d 1031 (La.1977).

In the instant case the reservation of the usufruct over the “yards surrounding the residence,” which is contained in the instrument conveying the property to Mr. Love, is ambiguous. The exact extent of the property included in the reservation of the usufruct is unclear. Mr. Love’s testimony, however, revealed that at the time of the sale the parties to the agreement contemplated that the usufruct would cover the four lots in question. He delineated this area on the plat which has been introduced into evidence. The trial judge correctly considered this evidence and set forth the description of the area covered by the usufruct in his judgment as previously set forth herein.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

      . Upon trial of the rule, counsel for plaintiffs, in his opening statement, explained to the court that the issue was whether a usufruct of the property in favor of the Greens had terminated.
      The counsel for defendants contended that the usufruct held by the Greens had not terminated and that they had a right to occupy the property described in the rule to evict. The hearing proceeded and evidence introduced to determine the existence of the usufruct and, if so, theboundary lines of the area that was subject to such usufruct. We note this procedure because it may be said that such procedure contains aspects of both summary and ordinary proceedings. Any objections to such procedure, however, were waived by all parties as no objections were raised. LSA-C.C.P. art. 1154 provides, in part, as follows:
      “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.”

      . The record reflects no disposition of the case as to the remaining defendants, J. B. and Freddie Jo Powell.

      . The plaintiffs, James and Ann Bond, purchased the property from Louisiana Savings Association without warranty of title in January 1980. That sale reflects that Louisiana Savings acquired title through merger with Rapides Bank & Trust Association. The record is devoid of any indication of when that merger took place or when or to whom Lloyd Love transferred title.

      . LSA-C.C. art. 623 states:
      “A usufruct may be terminated by the naked owner if the usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.”


text:
    Elton DEVILLE, Plaintiff-Appellant, v. Russell ZAUNBRECHER and the Edwards Law Firm, Defendants-Appellees.
    No. 8297.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Elton Deville, in pro. per.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

The plaintiff, Elton Deville, filed suit in proper person against Russell Zaunbrecher and the Edwards Law Firm. Mr. Zaun-brecher had represented Mac Hanigriff in a suit against plaintiff. The matter was tried on September 20, 1978, and judgment was granted in favor of Mr. Hanigriff on November 7, 1978. The plaintiff filed this suit on October 16, 1980. The plaintiff’s petition alleges that Mr. Zaunbrecher persuaded the court to “prosecute” him in that prior suit, while Mr. Zaunbrecher knew that Hanigriff’s case was based on lies. The plaintiff seeks $1,000,000.00 “for the damages done to the reputation of Elton Deville and the terrible mental anxieties it has caused him.”

The defendants in the instant suit filed an exception of prescription. The trial court sustained that exception and the suit was dismissed. Plaintiff appeals and we affirm.

The plaintiff’s brief reveals his total unfamiliarity with the law. Regarding the exception of prescription, he refers the court to Comment (e) of La. C.C.P. art. 2004 which notes that art. 2004, dealing with annulment of judgments, does not apply to a fraudulently obtained confession of judgment. This is obviously not relevant to the case at hand. Plaintiff has not sought the annulment of a prior judgment; nor was there any confession of judgment involved in the suit by Hanigriff against Deville.

Plaintiff is disgruntled over the results of the previous lawsuit. He now alleges wrong doing on the part of his opponent’s attorney. While it is questionable that plaintiff has stated a cause of action in his petition, it is fair to say that if any cause of action is stated, it would be classified an offense or quasi offense arising under the provisions of LSA-C.C. arts. 2315 and 2316.

Article 3536 of our Civil Code provides that certain actions are prescribed in one year. Among those actions are those for injurious words, whether verbal or written, and those for damages resulting from offenses or quasi offenses. Since plaintiff filed suit well beyond the one year prescriptive period, we find that any claim that plaintiff may have had against defendants arising out of plaintiff’s prior litigation with Mr. Hanigriff would fall within the ambit of Civil Code art. 3536 and is thus prescribed.

For the above reasons, the judgment of the trial court sustaining the exception of prescription is affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.

      . The plaintiff’s suit was against Russell Zaun-brecher and “the Edwards Law Firm.” The remaining members of the firm were not named in the petition. The exception of prescription was filed on behalf of each of the members of the law firm, however, and the judgment dismissed the suit against each member.