text:
    Frances Mathews BAKER v. PAYNE AND KELLER OF LOUISIANA, INC., Georgia Pacific, Inc., Maryland Casualty Company et al.
    No. 13060.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Writ Granted May 19, 1980.

      John D. Kopfler, Maurice D. Robinson, Jr., Hammond, for plaintiff-appellant Prances Mathews Baker.
    William J. Doran, Jr., William T. Kivett, Baton Rouge, for intervenor-appellant Maryland Casualty Co.
    John S. White, Jr. of Kennon, White & Odom, Baton Rouge, for defendants-appel-lees Payne & Keller of La., Inc. and Maryland Casualty Co.
    W. S. McKenzie of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-ap-pellee A. J. Elisar.
    David W. Robinson of Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant-appellee Danny Reagan.
    Vincent P. Fornias, Gerald L. Walter, Jr., of Kan trow, Spaht, Weaver & Walter, Baton Rouge, for defendants-appellees Georgia Pacific Corp. and Hartford Accident & Indemnity Co.
    Horace C. Lane of Lane & Clesi, Baton Rouge, for defendant-appellee Roger Newman.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a wrongful death action. The trial court dismissed plaintiff’s and interve- . nor’s suits on a plea of prescription and both parties have appealed.

Two issues are presented on appeal: (1) Whether this appeal should be dismissed ex proprio motu because plaintiff and interve-nor both took appeals from the trial court’s judgment refusing to grant a new trial, a judgment which is considered non-appeala-ble; and (2) if the appeal is not dismissed .outright, whether the trial judge correctly sustained the defendants’ pleas of prescription.

Plaintiff’s husband died on January'30, 1976, three days after sustaining an injury while employed for Payne & Keller of Louisiana, Inc. (Payne & Keller) at a Georgia Pacific Corporation (Georgia Pacific) site. She filed a wrongful death action on January 13, 1977, against Payne & Keller, Georgia Pacific and its unnamed insurer, and Maryland Casualty Company, as the insurer of Payne & Keller. (Maryland Casualty later intervened to recover workmen’s compensation benefits paid by it to- plaintiff.) Payne & Keller was dismissed from the suit on a peremptory exception of no right and cause of action because it was the employer of the decedent and, under Louisiana’s workmen’s compensation law, was liable to plaintiff only for workmen’s compensation death benefits. Georgia Pacific was also dismissed by summary judgment, and the judgment as to both companies is final.

At the time the first defendants were dismissed, the trial judge gave plaintiff time to amend her suit to bring in certain executive officers. Plaintiff amended her suit on March 17, 1977, naming various executive officers of Payne & Keller as defendants. She also retained Maryland Casualty Company in the suit as a defendant, but this time as the insurer of the various executive officers. (Various executive officers and the insurer of Georgia Pacific were also brought in on the amended petition, but they have since been dismissed and judgment as to them is final.)

When plaintiff’s amended petition was filed, the executive officer defendants filed a peremptory exception of prescription, alleging that the amended petition was filed more than one year after the death of the decedent. The trial court sustained the peremptory exception on June 8, 1978. The plaintiff and intervenor timely filed motions requesting a new trial and the judgment denying a new trial was rendered on April 30, 1979. Both plaintiff and interve-nor then took this devolutive appeal from the judgment rendered on April 30, 1979, i. e., the judgment denying the new trial.

JURISDICTION

Defendants question whether this court has jurisdiction over this appeal because an appeal cannot be taken from a judgment denying a new trial since such a judgment is in the nature of an interlocutory judgment and does not result in irreparable injury to either of the parties.

The motions for appeal filed by both plaintiff and intervenor state that they seek to appeal from the judgment of April 30, 1979. The briefs of both parties (the inter-venor has adopted in full the-brief of plaintiff) state on their cover pages that they are appealing from the April 30, 1979 judgment denying the new trial. However, plaintiff argues in brief that she is appealing from the judgment which sustained the peremptory exception of prescription. She did not address the new trial appeal issue until the defendants brought it up in their brief.

We are ever mindful that appeals are favored and should be dismissed only for substantial causes. Any doubt concerning the validity of an appeal should be resolved in favor of the appellant to the end that an appeal be sustained.

A review of the entire record indicates that appellants did not intend to appeal the judgment denying the new trial, but rather intended to appeal the judgment which sustained the peremptory exception. As such, we are of the opinion that this court has jurisdiction over this appeal.

PEREMPTORY EXCEPTION

Plaintiff argues that her naming of Maryland Casualty Company in the original petition was sufficient to interrupt prescription as to the executive officers she named in the amended petition because Maryland Casualty is solidarily liable with the executive officers. A similar argument was made and rejected in Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975). Though there are some factual differences between Trahan and the case at bar, the legal principles applicable to both cases are indistinguishable. Trahan is the latest definitive ruling by our Supreme Court on the troublesome issue of solidarity and its relation to liberative prescription.

A suit against one solidary obligor interrupts prescription against others who occupy a position of solidarity with the party sued. La.C.C. art. 2097. An insurance company stands in a position of solidarity with its insureds and can be proceeded against directly without joinder of the insured whose conduct triggers the insurance coverage. La.R.S. 22:655. But Trahan stands for the proposition that a suit against an insurance company in its capacity as insurer for one insured will not interrupt prescription as to another party insured by the same company unless, perchance, the insured named in the first suit is solidarily liable with the other insured or unless the insurance company is sued directly as the insurer of the other party whose conduct is alleged to have caused the accident. Stated another way, a suit against an insurance' company will interrupt pre-. scription only as to those insureds who are joined as defendants or whose conduct is alleged in the petition to be the cause of the harm producing accident. There may be other insureds covered by the same company and their conduct may have had a causative connection with the incident, but unless their conduct is alleged to be the reason for the coverage to attach, or unless they are joined as defendants in the first suit, prescription as to them will not be interrupted.

In Trahan, the insurance companies were sued as the insurers of various executive officers alleged to be liable for a salt mine accident. After a judgment finding the executive officers non-negligent, the plaintiffs again sued the same insurance companies as insurers of two employees alleged to be at fault in the accident. Since the executive officers were not solidarily liable with the employees, and since the employees were not alleged to be liable or alleged to be covered by the insurers in the first suit, the second suit against the insurers was dismissed on an exception of prescription. We realize that in Trahan two suits were filed, whereas in the instant case only one suit has been filed. We find this difference to be of no importance because as we read Trahan we are left with the impression that if the first suit had interrupted prescription, the second suit would have been timely.

In the case at bar, Maryland Casualty was first sued solely in its capacity as insurer of the company, Payne & Keller. Although the suit alleged that the accident occurred because of the negligence of the employees and agents of Payne & Keller, no allegation was made that Maryland was the insurer of the agents and employees of the company or that Maryland was being sued in its capacity as insurer of the employees or agents. Only when the petition was amended was Maryland Casualty cited as the insurer of the executive officers of Payne & Keller. Because the amendment came more than a year after the death of the plaintiff’s decedent, the case was properly dismissed on the defendants’ plea of prescription. Trahan v. Liberty Mutual Insurance Company, supra.

We recognize that our decision today places much emphasis on the technical allegations made in the original petition of a given case. So does Trahan, supra. See The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Obligations, 36 La.L.Rev. 375, 386. We also realize that the Trahan court distinguished the case of Simmons v. Travelers Insurance Co., 295 So.2d 550 (La.App. 3rd Cir. 1974), on two grounds, one of which dealt with the stage in the proceedings at which the second defendants were joined. Like the Trahan court, we do not believe joinder of the second defendants prior to trial instead of after trial is “alone sufficiently distinguishable” to change the result on the prescription issue. 314 So.2d at 355. . In any event, Simmons is neither controlling nor persuasive. 314 So.2d at 355.

The thrust of all this is that the insurer is solidarily liable for purposes of prescription interruption only as to those insureds named as defendants or alleged to be liable and covered by the insurance company. If the insurer is not notified in the petition as to exactly whose conduct it is defending, then prescription as to the unnamed insureds and as to the insurance company in its capacity as insurer of the unnamed insureds will not be interrupted.

Other arguments advanced by the plaintiff were made and rejected in Trahan, and there is no reason for us to discuss them any further.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. Plaintiffs-appellants will pay all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Freddie Lee LACEY v. BAYWOOD TRUCK AND MACHINERY. CAPITAL BANK AND TRUST COMPANY v. Freddie Lee LACEY.
    Nos. 13032, 13033.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980,
    Writ Granted in Part and Refused in Part May 9, 1980.

      James R. Coxe, Baton Rouge, for plaintiff-appellee Freddie Lee Lacey and defendant-appellee Edward J. Lacey.
    Russell L. Dornier, Baton Rouge, for defendant-appellant Baywood Truck & Machinery, Inc. and plaintiff-appellant Capital Bank & Trust Co.
    James M. Field, Stephen A. Mayo, Baton Rouge, for plaintiff-appellant Capital Bank & Trust Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal involves two cases consolidated for trial. In the first suit, Capital Bank & Trust Company of Baton Rouge asks for a deficiency judgment against Freddie Lee Lacey and Edward J. Lacey on a chattel mortgage note issued by them in connection with Freddie Lacey’s purchase of a used truck. The second suit was brought by Freddie Lacey against Baywood Truck & Machinery, Inc. (Baywood) on the ground that the truck Baywood sold him had redhi-bitory defects. The trial court granted Freddie Lacey a reduction in price and rejected Capital Bank’s claim on the note. Attorney’s fees were awarded against Bay-wood. Capital Bank and Baywood appealed. Lacey answered the appeal asking for additional attorney’s fees, damages, and a rescission of the sale or a further reduction of the price.

The issues on appeal are Capital Bank’s status as a holder in due course, the existence of redhibitory defects, whether the sale of the truck defeats an action for rescission, whether Lacey has proved consequential damages, and whether Baywood can be charged with knowledge of defects in the truck.

On May 2, 1977, Lacey bought from Bay-wood for $21,446.50 a 1972 Brockway tractor and a 1977 Perfection dump body. Lacey made a cash payment of $4,000 and financed the balance with a chattel mortgage note issued to Baywood for $28,689.48. The note was later negotiated to Capital Bank. No payments on the note were ever made. On October 6, 1977, pursuant to Capital Bank’s petition for executory process, the court ordered the issuance of a writ of seizure and sale of the tractor and dump body. The sheriff was unable to locate the truck for seizure until January 11, 1978. On March 29, 1978, the truck was sold at auction for $5,800, two-thirds of its appraised value. Capital Bank then brought suit for a deficiency judgment. The trial court ruled against Capital Bank apparently on the ground that Lacey had proved his defense of failure of consideration.

Capital Bank maintains it is a holder in due course and thus a defense of failure of consideration cannot be asserted against it. La.R.S. 10:3-302, 305. Lacey’s position is that the following Federal Trade Commission regulation makes Capital Bank vulnerable to his defense:

16 C.F.R. § 433.2. In connection with any sale or lease of goods or services to consumers, in or affecting commerce as ‘commerce’ is defined in the Federal Trade Commission Act, it is an unfair or deceptive act or practice within the meaning of Section 5 of that Act for a seller, directly or indirectly, to:
(b) Accept, as full or partial payment for such sale or lease, the proceeds of any purchase money loan (as purchase money loan is defined herein), unless any consumer credit contract made in connection with such purchase money loan contains the following provision in at least ten point, bold face, type:
NOTICE
Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained (with the proceeds hereof). Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.

“Consumer” is defined in Section 433.1 as “[a] natural person who seeks or acquires goods or services for personal, family, or household use.”

We find the above provision inapplicable to Capital Bank since the sale to Lacey was not a consumer transaction. Lacey purchased the truck with the intention to use it commercially for hauling, not for any personal, family, or household use.

Since the Federal Trade Commission regulation is not applicable and Capital Bank otherwise satisfies the requisites of due course holding (La.R.S. 10:3-302), Capital Bank is entitled to recover the deficiency due on the note plus 25% attorney’s fees and interest as prayed for.

Baywood asserts Lacey cannot properly bring suit for redhibition since the truck was seized and sold at sheriff’s sale prior to the filing of the suit against Bay-wood. Because Lacey could not return the truck to Baywood, the parties could not be returned to the status quo, which is the object of a suit for rescission. However, this does not preclude recovery in quanti minoris, as was ordered by the trial court. La.C.C. arts. 2541 et seq.; Bayou Rapides Lumber Co. v. Davies, 221 La. 1099, 61 So.2d 885 (1952); Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590 (1928); Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir. 1977); Stratton-Baldwin Co. v. Brown, 343 So.2d 292 (La.App. 1st Cir. 1977); Gauche v. Ford Motor Company, 226 So.2d 198 (La.App. 4th Cir. 1969).

The truck which Lacey bought from Baywood consisted of a five-year-old used tractor with a new dump body. James Singleton, Baywood’s general manager, testified that when Baywood bought the tractor from the previous owner it was in very bad shape, only borderline salvageable. However, he maintains that when it was purchased by Lacey it was in very good condition due to extensive repair work. Bay-wood completely rewired the electrical system, rebuilt the engine, put in new air cleaners and four new batteries, and re-bushed the suspension. The brakes on the four rear wheels were rebuilt and new front springs were put in. No repair work was done on the transmission, which was believed to be in good shape. The truck was sold with a thirty-day, fifty-fifty warranty, which obligated Lacey to pay half of future repair costs.

Lacey testified he had constant problems with the truck and was rarely able to get a full day’s work done because of breakdowns. He calculated he made approximately thirty trips to Baywood for repairs between May and August, 1977. After August he went to other repair shops. His difficulties began the first day when he could not start the truck to drive it off the lot due to a short in a wire. Lacey maintained the truck continued to have starting problems despite numerous alternator adjustments by Baywood. About a week after he got the truck, Baywood had to replace the muffler and reinstall the hydraulic pump drive shaft which had fallen off. At one point the hydraulic pump failed when Lacey was trying to lower his dump bed. Lacey stated that even after repairs his dump bed always moved slower than normal and was sometimes difficult to get into gear. Approximately three weeks after Lacey bought the truck, the transmission fell out damaging the drive shaft and tearing a hole in the fuel tank. The rear section of the transmission had to be rebuilt. Lacey’s half of the repair bill was $1,413.99. The recap tires on the truck blew out in less than ninety days. The exhaust manifold leaked. The engine consumed and leaked excessive amounts of oil. The air compressor allowed oil to get in the air tank causing the brakes to fail. Lacey also testified the lights on the truck lasted only two weeks due to faulty wiring.

In July or August 1977, Lacey’s truck was in an accident and required $2,100 in repairs to the front end. This repair work was not done by Baywood. Lacey was injured in January 1978 when the engine backfired through the air filter burning him on the face and shoulders.

Two witnesses who worked with Lacey generally corroborated his testimony about his problems with the truck. Also a mechanic who worked on the truck in October and November 1977 testified some of the wiring was bad, the starter had to be replaced, the transmission was grinding, compression was escaping into the motor, and the rear end was out of alignment, indicating problems with the bushings. The truck was inspected on February 23, 1978, by Alvin Doyle, who was qualified as an expert witness. Doyle testified he found the truck to be in such poor condition that he did not think it would he worth repairing.

We agree with the trial court that Lacey is entitled to a reduction in price due to defects existing at the time of sale. The problems which developed were far more numerous and severe than those normally contemplated in the purchase of a used vehicle, especially one represented as being in good condition.

The diminution which the trial court may decree under Civil Code articles 2541 et seq. is theoretically the difference between the sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defects. Muller v. A. K. Durnin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La.App. 1st Cir. 1978); Guillory v. Pitre Ford Company, 345 So.2d 1274 (La. App. 3d Cir. 1977); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974). Factors to be considered in-calculating the reduction were discussed in Menville v. Stephens Chevrolet, Inc., supra at 861-2:

When a judge orders reduction of the sale price, one of the principal elements in formulating the award is the cost of repairing the defects which existed at the time of the sale. The cost of repairs, however, is not necessarily the sole measure of the diminution of value resulting from these defects. If the defects are few in number and quickly and simply remedied, the cost of repair may well be the only consideration. But when the defects are numerous and the repairs lengthy and frequent, then a greater reduction is warranted, because a fore-. warned buyer would not reasonably pay the full price, reduced only by the cost of repairs, if he knew the extensive repairs of the defects would significantly curtail his use and cause him considerable inconvenience and aggravation. .
To prove the theoretical price to which the actual sale price should be reduced, a plaintiff attempts to establish the fair value as of the time of the sale, if the defects had been known. Evidence as to this theoretical value may consist of expert opinion testimony, of costs expended to place the thing in sound condition, or of other facts bearing on the reduced price a forewarned buyer would have paid and a seller with knowledge of the defects would have accepted. But in the final analysis the trier of fact cannot mathematically calculate what price the parties would have agreed to, if they had known of the defects; the trier must consider the overall evidence and, using limited discretion, must set a reduced sale price which fictionally represents the fair value at the time of sale.

Also see Bendana v. Mossy Motors, Inc., supra.

The trial court ordered Baywood to refund the $4000 down payment, canceled any amounts Lacey owed Baywood for repairs, and relieved Lacey of his obligation to pay Capital Bank the balance of the purchase price plus finance charge. The effect of this judgment was to reduce the purchase price to zero. A diminution of the price to zero is clearly erroneous. There was testimony that the salvage value of a truck of that type was $5,000. The new dump bed alone cost Baywood $3,100. When the tractor was traded to Baywood, Singleton valued it for trade-in at $9,500. The appraisal for the sheriff’s sale made 13,215 miles and eleven months after purchase was $8,700.

In determining the proper amount of reduction, we are somewhat hindered by the lack of any testimony on the cost of repairing the numerous defects. However, after carefully considering the proven defects, the frequency of the breakdowns, the associated inconvenience and the continued poor performance after repairs, we conclude the price should be reduced by $6,500 and any sums owed Baywood for repairs should be voided.

Lacey also asks for damages to cover the injury and medical expenses incurred when the truck backfired and burned him. The trial court denied recovery on the ground Lacey had failed to prove a defect attributable to Baywood had caused the accident. We affirm this part of the lower court judgment. The incident occurred eight months after the sale and after the truck had been in a wreck and had been worked on by repair shops other than Bay-wood. No proof was offered to show that the malfunction was due to a defect existing at the time of sale.

Baywood protests the trial court’s award of attorney’s fees. Counsel correctly points out attorney’s fees are recoverable only from a seller who knew or is charged with constructive knowledge of the defects and fails to declare them. La.C.C. art. 2545. An artisan, builder, or manufacturer is presumed to know the vices of the things he constructs. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Muller v. A. K. Durnin Chrysler-Plymouth, Inc., supra; Brown v. Dauzat, 157 So.2d 570 (La.App. 3d Cir. 1963). Lacey did not prove Baywood had actual knowledge of the defects. However, we think the presumption of knowledge is applicable due to the extensive overhaul performed by Baywood prior to the sale. Baywood was in effect the manufacturer of a large part of the truck when it was purchased by Lacey. Singleton called it “a ready-made truck out of Baywood.” We affirm the trial court’s award of attorney’s fees and add to it $500.00 to cover the additional fees for work on the appeal.

For the foregoing reasons, the judgment appealed is affirmed in part, reversed in part and amended. Costs are to be shared by Lacey and Baywood.

AFFIRMED IN PART, REVERSED IN PART, AND AMENDED.


text:
    NATIONAL BUILDING AND CONTRACTING COMPANY, INC. v. LAFOURCHE PARISH POLICE JURY.
    No. 13036.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.

      Edward James Gaidry, Houma, for plaintiff and appellee.
    Jerome J. Barbera, III, Thibodaux, for defendant and appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is an appeal by the Lafourche Parish Police Jury from the district court’s .confirmation of an arbitration award in favor of National Building and Contracting Co., Inc. (National). National answered the appeal asking for damages for frivolous appeal.

The Police Jury contracted with National for the construction of a detention center. After construction was completed, National instituted arbitration proceeding demanding a sum in excess of the contract price to cover additional costs which it attributed to the Police Jury’s failure to supply utilities to the job site. The arbitrators awarded National $50,000 plus reimbursement of the $1,700 it had advanced for administrative fees and expenses and the arbitrators’ compensation. The Police Jury was also ordered to pay the American Arbitration Association $387.27 for additional expenses.

The Police Jury argues the arbitrators’ award should be vacated on the grounds stated in La.R.S. 9:4210(D):

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

An arbitration award may be challenged only on grounds specified by statute. A court cannot substitute its conclusion for that of the arbitrators. Firmin v. Garber, 353 So.2d 975 (La.1977); Matter of Bacmonila Garden Apartment, Inc., 359 So.2d 1340 (La.App. 4th Cir. 1978).

We affirm the holding of the district court, finding as did the district court, that the Police Jury failed to carry its burden of proving the arbitrators exceeded their powers or imperfectly executed them. The arbitrators obviously addressed the questions of procedural arbitrability presented by the Police Jury. These questions related to the contentions that National waived its right to arbitrate by accepting final payment under the contract, and the demand to arbitrate was premature because National did not first present its claim to the architect. These questions were properly within the scope of the arbitrators’ powers. Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974). Nor can we say the answers adverse to the Police Jury constitute an imperfect execution of those powers.

The pertinent contractual provisions and the evidence relevant thereto satisfy us that there was a sufficient basis, both procedurally and substantively, for “a mutual, final, and definite award upon the subject matter submitted.” We cannot review the merits of the arbitrators’ decision. Firmin, supra.

Damages for frivolous appeal are denied.

For the above reasons, the judgment appealed is affirmed. Costs are to be borne by appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Bernadine MACIP, Plaintiff-Appellee, v. Donald W. WALLACE, Defendant-Appellant.
    No. 7277.
    Court of Appeal of .Louisiana, Third Circuit.
    Jan. 30, 1980.
    On Partial Rehearing April 14, 1980.
    Dubuisson, Brinkhaus & Dauzat, Edward B. Dubuisson, Opelousas, for defendant-appellant.
    Taylor & Trosclair, Frank P. Trosclair, Jr., Opelousas, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Donald W. Wallace, defendant-appellant, has appealed from two judgments rendered in this separation suit insofar as they awarded his wife, Bernadine Macip, the plaintiff-appellee $250.00 per month support for each of their two sons, ages 10 and 13 years. The first judgment was based on a rule which was tried preliminarily. The other was rendered following the trial on the merits and it contained a like decree for child support since the parties stipulated that the related circumstances had not changed.

The appellee filed a motion to dismiss the appeal of the first judgment, contending that the issue involved therein has become moot because it was only temporary and was superseded by the judgment on the merits. On the other hand, appellant contends that if the amount of child support awarded in the judgments is excessive and it is reduced by this court he will be unable to recover the excess of the proper award because the law does not provide for a suspensive appeal from the first judgment. The opinion in O’Brien v. O’Brien, 347 So.2d 1288 (La.App. 1 Cir. 1977), lends support to appellant’s position and we conclude that the motion to dismiss the first appeal must be denied.

Turning now to the merits, following the trial the district judge concluded the wife was at fault and rendered a separation decree in favor of the husband denying the appellee’s claim for alimony. However, Mrs. Wallace was awarded custody of the children and child support in the total sum of $500.00 per month. The appellant contends the amount was excessive under the circumstances presented and that the trial judge abused his discretion in this respect.

The evidence reflects that the appellant is a truck driver who usually is away from home working six days a week. He resides at the community home. Mrs. Wallace now rents a trailer from her mother in which she lives with the children. She works and her wages are about $4,000.00 per year. The trial judge found that the husband’s gross wages were approximately $16,500.00 annually, but his net take home pay was probably about $12,000.00 or $1,000.00 per month. Combining their incomes and employing what appears to be its own formula, the court concluded that the children needed and Mr. Wallace was able to pay child support of $250.00 per child.

We are convinced the court was manifestly in error and abused its discretion in making such award.

From our review of the record and our own calculations, we believe the husband’s net take home pay is closer to $1,100.00 per month than $1,000.00 as found by the trial judge. ■ In either case, however, if he pays the child support awarded and his present fixed monthly obligations he will have either nothing or practically nothing left for his own basic necessities such as food when not working, the utilities at his residence, clothing (other than uniforms), toiletries, haircuts, medical expenses, use and upkeep of his automobile and so forth.

It was undisputed that appellant is obliged to pay $500.00 per month on notes or contracts executed before the community was dissolved for the purchase of an automobile, home furnishings and orthodontic treatments for one of the children. Payment of these and the $500.00 per month awarded for child support leaves little if anything for Mr. Wallace’s own living expenses. While he receives a travel allowance or reimbursement primarily for food while on the road, it was not established that he spent less for such item than he was allowed. His testimony that while at home his food costs from $36.00 to $42.00 per month was not contradicted and seems very . reasonable as does the estimates of his other necessaries (except possibly the utilities). Thus, it is obvious that appellant cannot meet his expenses, fixed or otherwise, if he is required to pay $500.00 monthly for the support of his two minor sons.

The general rule as to the determination of child support was stated by the court in Burks v. Burks, 293 So.2d 923 (La.App. 2 Cir. 1974), as follows:

“Alimony for the support of the children should be based upon the ability of the father to pay as well as upon the needs of the persons receiving it. (La.C.C.Articles 230, 231). In fixing the amount consideration should be given to the income of the mother who, together with the father, is obligated by Civil Code Article 227 to support, maintain and educate their children.”

The trial judge, of course, is vested with wide discretion in fixing child support. However, in Fall v. Fontenot, 307 So.2d 779 (La.App. 3 Cir. 1975), this court said:

“Regardless of the language used in the Manuel case, it should be borne in mind that calculation of child support by a mathematical formula is impossible and that all of the varying facts and circumstances of each individual case must be taken into consideration in fixing the amounts awarded." [Emphasis added]

In the present case it seems rather clear that the wife’s earnings are barely sufficient for her own needs and she is unable to contribute any significant amount towards their support. We are not entirely convinced it was established that the needs of the children for basic necessities amount to $500.00 per month. Considering this as well as the ability of the father to pay, we conclude that the child support award should be reduced by $50.00 or to $200.00 monthly for each child. By doing so, we believe that the appellee at least will be able to provide the basic necessities of life for her children and appellant can satisfy the community obligations and pay his necessary living expenses.

Accordingly, the judgment of the trial court is amended to reduce the award to plaintiff-appellee for child support from $250.00 to $200.00 per month for each of her two minor children. The rights of defendant-appellant to recover the excess paid, if any, as child support under the judgments heretofore rendered by the district court are reserved. The costs of appeal are assessed against plaintiff-appellee.

AMENDED AND AFFIRMED.

ON PARTIAL REHEARING

Appellee has now called our attention to Frederic v. Frederic, 302 So.2d 903 (La.1974), which was not considered by us in writing our original opinion in this case.

We think that decision precludes the right of the husband to recover alimony payments made in accordance with an order of the trial court even though it is subsequently determined on appeal that the amount of the award was excessive under the circumstances of the case. Regardless of our own views on the subject, this court, like the Court of Appeal, Second Circuit, in Bruner v. Bruner, 373 So.2d 971 (La.App. 2 Cir. 1979), is bound to follow Frederic.

For these reasons, the decree heretofore entered by this court is amended to dismiss the appeal from the district court’s judgment rendered April 17, 1979, on the rule for alimony and child support as being moot and to delete from our decree the sentence reserving the appellant’s right to recover the excess child support paid under the judgments of the district court. Otherwise, such decree stands as written.


author:
CULPEPPER, Judge.
      DOMENGEAUX, Judge, PER CURIAM. STOKER, J.,

text:
    James L. BORDELON, Plaintiff and Appellant, v. Cheryl Gaspard BORDELON, Defendant and Appellee.
    No. 7546.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 1980.
    Rehearing Denied April 7, 1980.

      Gravel, Roy & Burnes, Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Knoll & Knoll, Jeannette Theriot Knoll, Marksville, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   CULPEPPER, Judge.

This is a child custody case. The child involved is Cindy Kaye Bordelon, now nine years of age. The trial judge changed custody from the father to the mother, Cheryl Gaspard Bordelon. The father, James L. Bordelon, appeals.

The essential issues are: (1) Is the so-called “double burden” rule controlling? (2) If not, was the trial judge clearly wrong in changing custody to the mother?

FACTS

James Bordelon and Cheryl Gaspard were married in 1971. Their child, Cindy Kaye Bordelon, was born the same year. On May 16, 1975, James obtained a divorce from Cheryl in a default judgment, wherein Custody of Cindy was awarded to her mother. Cheryl then married Kenneth Bordelon, admitted to be the father of her second child, Kenneth Bordelon, Jr., who had been born in October, 1974, eight months before her divorce from James. Shortly thereafter, James Bordelon married Sherill Ducote, to whom he is still married. This was his fourth marriage.

Cheryl had many problems during her second marriage. In January, 1978, she left Kenneth in Morgan City and moved to Ruby, Louisiana, where her family resides.. She rented a trailer and allowed John Crose to live there with her and her two children. In April of 1978, Kenneth sued for a legal separation on the basis of Cheryl’s relationship with Crose.

In September, 1978, James Bordelon petitioned for a change of custody of Cindy, also due to the relationship with Crose. Cheryl was properly served, but fled with both of her children to Gonzales, Louisiana. She stated she did so because she was afraid she would lose custody of Cindy. On October 6, a hearing on the matter of Cindy’s custody was held without Cheryl’s presence. Judge Earl Edwards heard testimony and awarded custody of Cindy to her father. There were no written reasons. James Bor-delon ultimately had to go to Texas to find his daughter and return her to Avoyelles Parish.

In November, 1978, Kenneth Bordelon petitioned for custody of his child, Kenneth, Jr. Shortly thereafter, however — Cheryl and Kenneth were reconciled and have remained married to the present.

In February, 1979, Cheryl petitioned for the return of Cindy’s custody. The hearing was set before Judge James N. Lee, who recused himself because his son, Nelson Lee, was representing Cheryl. The matter was heard by Judge James Mixon, ad hoc, who maintained custody in the father. In written reasons, Judge Mixon stated:

“Without going into all of her past, the Court is satisfied that Cheryl Gaspard Bordelon has shown that she is now back with her present husband, Kenneth Bor-delon, and has been for over three months. Her husband is doing well financially. Cheryl testified that her marriage is on stable ground and that she is now able to provide a good and moral home for Cindy. The Court is of the opinion that three months may not be sufficient time to determine the stability of a marriage that has had its problems in the recent past. The Court also feels that testimony from Kenneth Bordelon would have been very pertinent, but he did not appear at this proceeding.
“There has been only one change in the present custody situation that could have a detrimental effect on the child, Cindy Bordelon. Her father, James L. Borde-lon, was charged with shoplifting some three months ago and he allowed his $113 bond to be forfeited. The Court has wrestled with this problem and concluded, certainly without condoning, that this is not enough to greatly affect the home environment so that it now becomes detrimental to Cindy. However, the Court’s opinion would change drastically should this shoplifting become a habit with James L. Bordelon.”

In August, 1979, Cheryl again petitioned for the custody of her child, and this time her husband, Kenneth Bordelon, was present in court with her. At trial, the mother showed that her circumstances had remained the same, and that she had driven 400 miles every other weekend to visit with the child. She alleged that James had been defrauding the Social Security Administration in that he was collecting disability and working at the same time. She also stated that she had reported the fraud. James met the allegation of fraud by explaining that for a period of time, disability may be received while the recipient attempts reemployment. Other than the above, no issues or facts were presented that had not been at issue in the previous hearings before Judge Edwards in October, 1978 and before Judge Mixon in February, 1979. Transcripts of all proceedings were made a part of the present record.

Judge James N. Lee presided at the hearing of the present rule on August 20, 1979 and ordered that custody be changed to the mother. There were no written reasons for judgment. James Bordelon applied for writs of certiorari and was granted a stay of execution until the appeal could be heard.

The principal argument made on behalf of the father-appellee is that the trial court erred as a matter of law in failing to apply the “double burden” rule established in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). This rule is to the effect that a person seeking change of custody must prove that (1) the circumstances under which the child is living are deleterious to its welfare and (2) the applicant for a change of custody can provide a better environment. Appellant’s argument must be rejected.

Judges of the Third Circuit have been divided on the so-called double burden rule. See dissenting opinion of Judge Hood in Gary v. Gary, 143 So.2d 411 (La.App. 3rd Cir. 1962) and concurring opinions by then Judge Tate in Wells v. Wells, 180 So.2d 580 (La.App. 3rd Cir. 1965) and Craft v. Craft, 184 So.2d 758 (La.App. 3rd Cir. 1966). See also Siggio v. Siggio, 217 So.2d 673 (La.App. 3rd Cir. 1969).

These decisions preceded the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), in which the Supreme Court laid out four legal principles to be considered in appellate review of custody cases. These may be summarized as follows: (1) The paramount consideration is the welfare of the child. (2) Generally, the welfare of the child is best served by granting custody to the mother, especially a child of tender years. (3) When the trial court has made a considered decree of permanent custody in light of principles (1) and (2), the party seeking to change the custody bears a heavy burden. (4) On appeal, the trial judge’s decision in custody matters is entitled to great weight.

After Fulco, in Bourque v. Leger, 322 So.2d 784 (La.App. 3rd Cir. 1975), this court took the position that:

“Our Supreme Court, however, in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), discarded the so called ‘double burden of proof’ rule, and instead the court set out clear and understandable guidelines which are to be followed in determining to whom custody of children should be awarded, whether the case involves the initial awarding of custody or the transfer of custody from one person to another.”

Again, in Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3rd Cir. 1977) this Court reiterated the position that:

“In our view, the double burden rule has been abandoned in favor of the approach that the courts must seek, above all else, the welfare of the child. * * * we do not believe the so-called ‘double burden’ still, prevails in Louisiana as a rigid and . inflexible rule. . . . ”

This position has not been accepted in all of the other circuits. See Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977); Thom v. Thom, No. 12,896 rendered November 12, 1979 (2d Cir.); McCarstle v. McCarstle, 356 So.2d 491 (La.App. 1st Cir. 1977); Schlegel v. Schlegel, 375 So.2d 756 (4th Cir. 1979).

Despite the lack of agreement by other circuits, this court feels strengthened in its own views by the authority of LSA-C.C. Article 157 as amended after Fulco. Article 157 was amended in 1977 to provide in part:

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

A question arose in the jurisprudence as to whether this amendment was intended to suppress the rigid maternal preference, as stated in some cases, that the mother is entitled to custody unless proven unfit or unable. See Heymann v. Lewis (3rd Cir. 1979); Atteberry v. Atteberry, 379 So.2d 18 (3rd Cir. 1979); Hegan v. Hegan, 367 So.2d 147 (La.App. 2nd Cir. 1979); Hayes v. Hayes, 365 So.2d 563 (La.App. 1st Cir. 1978). This question was answered in the affirmative with a second amendment to Article 157 by Act 718 of 1979, effective September 7, 1979, which provides:

“A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.”

In construing the 1979 amendment to Article 157, the Second Circuit made the following statement in Thornton v. Thornton, 377 So. 417 (2d Cir. 1979), with which we agree: of the competing parents in all respects to care for the child.

“It could hardly be more clear that the legislative intent is to do away with any legal preference or presumption in favor of the mother in custody disputes. The father and mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability
“The legislative amendments do not, however, do away with the real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother. This nonmaterial concept remains a factor to be considered, along with many others, and will often compete with more materialistic factors that favor the father. It is correct, however, that this concept does not create a preference or presumption in favor of the mother that must be overcome by proof of the mother’s unfitness or incapability.”

The 1979 amendment to Article 157 also suppressed the rigid and inflexible double burden rule, as stated in some prior jurisprudence. This amendment expressly states that in all separation or divorce cases, “and changes of custody after an original award,” custody shall be awarded in accordance with the best interest of the child. Thus, regardless of a prior award, custody may be changed if it is for the best interest of the child. There is no inflexible “double burden” on the party seeking change.

As noted above, the 1979 amendment became effective after the present case was decided by the trial court. We believe the amendment must be applied retroactively under principles of interpretive legislation. As was stated by the Supreme Court in the ease of Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1974), on rehearing:

“[11] Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. 1 M. Planiol, Treatise on the Civil Law, § 251 at 179 (La.St.L.Inst. transl. 1959). Yian-nopoulos § 32.5 at 18 (1975 Supp.).”

Furthermore, the 1979 amendment must be applied retroactively because it is procedural, i. e., it provides for burden of proof in child custody cases. See Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (La.1978) where a medical malpractice statute was held retroactive both because it was interpretive legislation and because it was procedural.

Even though there is no longer a rigid and inflexible double burden, prior custody is still a factor to be considered. Maintaining stability of environment, which was the policy consideration underlying the double burden rule, continues to be a factor in determining the best interests of the child. We stated in Bushnell, supra:

“How ‘heavy’ a burden the applicant for a change in custody must carry will vary from case to case. We do not hold that the child’s custodial circumstances and the length of time in a home are totally irrelevant. Obviously, a court would be reluctant to change the custody of a happy child who has been in one parent’s home for three or four years. But returning a child to her mother after only a brief time with the father does not require the showing of deleterious circumstances other than that of being deprived of the mother’s care and companionship which she had known most of her life.”

In the present case, the trial court obviously concluded that a change of custody to the mother would be in the best interest of the child. In light of evidence showing the mother’s continued reform, the fact that the child is being returned to the mother after being with the father less than a year, and the great weight to which the trial judge’s decision is entitled in custody cases, we cannot say the district judge was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1977).

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

STOKER, J., concurs.

DOMENGEAUX, Judge,

concurring in the result.

Heretofore, I have consistently subscribed to the proposition that the double or heavy burden rule applied in change of custody cases under the jurisprudence. See my dissent in Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3rd Cir. 1977). I agree, however, that the 1979 amendment to Civil Code Article 157 pretty well does away with that rule as a rigid and inflexible burden. It goes without saying, however, that prior custody should still be a factor to be considered. Surely the maintaining of stability of environment is a factor to be considered in determining the best interest of the child.

I also agree that the 1979 amendment should be applied retroactively, but not under the principles of interpretive legislation as suggested in the majority opinion. The amendment, insofar as it refers to change of custody, is not interpretive of a previous statute. It legislatively overrules prior jurisprudence. Its retroactivity applies because it is procedural in character, i. e., having to do with presumptions and burden of proof. Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953).

On application by Plaintiff-Appellant for a rehearing

Before CULPEPPER, DOMENGEAUX and. STOKER, JJ.

PER CURIAM.

Plaintiff-appellant, James L. Bordelon, filed an application for a rehearing following rendition of our original opinion. Defendant-appellee, Cheryl G. Bordelon, filed an opposition to the application on the grounds that it was not timely filed.

A review of the record shows that our original opinion was rendered on Thursday, February 14, 1980, on which date a copy of the opinion, together with a notice of rendition of the judgment, was mailed by the clerk of our Court to counsel of record for each party. Plaintiff-appellant’s application for rehearing was received through the mail by the clerk of our Court on Monday, March 17, 1980.

LSA-C.C.P. Article 2166 provides that an application for rehearing shall be filed “within thirty days of the mailing of the notice of the judgment of the Court of Appeal . . . .” Rule XI, Section 1 of the Uniform Rules of the Courts of Appeal provides for the mailing of notice of rendition of a judgment and states that an application for rehearing must be filed “on or before the thirtieth calendar day after, but not including, the date of personal delivery of mailing of such notice.” Applying these rules to the present case, the 30-day delay to apply for a rehearing commenced on Friday, February 15 and ended on Saturday, March 15, 1980. Since Saturday is a legal holiday, the delay was extended to the following Monday on which day the application for rehearing was timely filed.

Plaintiff-appellant has filed in this Court a motion requesting that, in the event we deny his application for a rehearing, the stay order previously issued by us on August 29, 1979 be continued after our judgment becomes executory for a period of time sufficient for him to apply to the Louisiana Supreme Court for a writ of cer-tiorari and a stay order. Finding this motion appropriate, we hereby extend the stay order previously issued by us on August 28,. 1979 to Monday, April 21, 1980, on which date our stay order shall expire.

Finding no merit in the grounds urged in support of the application for rehearing, it is denied.

STOKER, J.,

votes for a rehearing limited • to the question of whether or not a remand to the trial court for the taking of additional testimony would be appropriate.


author: SCHOTT, Judge.

text:
    Ray TRAVASOS and Lucus Travasos v. NEW ORLEANS METAIRIE HOSPITAL FOUNDATION et al.
    No. 11197.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1980.
    Henry B. Alsobrook, Jr., Donna L. Yukna, New Orleans, for relators.
    Bernard E. Burk, New Orleans, for respondents.
    Before SCHOTT, CHEHARDY and HOOD, JJ.
   SCHOTT, Judge.

We granted certiorari on the application of Alton Ochsner Medical Foundation, Ochs-ner Clinic, Ochsner Foundation Hospital, • and Dr. John Holland, in order to consider whether a judgment overruling exceptions filed by them is valid considering the provisions of. the Louisiana Medical Malpractice Act.

On March 12, 1979, plaintiffs Ray and Lucus Travasos, as the husband and child of the decedent, Shirley Travasos, brought this suit for her wrongful death against a number of medical defendants including rela-tors. They prayed for judgment in the amount of $1,764,000 jointly and in solido against all defendants based upon allegations of medical malpractice on their part. Relators responded with an exception of no right or cause of action on the grounds that they were qualified health providers under LSA R.S. 40:1299.42 and that the provisions of R.S. 40:1299.41(E) and R.S. 40:1299.47(B) were violated. These statutes provide as follows:

“R.S. 40:1299.41(E)
Subject to R.S. 40:1299.47, a patient or his representative having a claim under this Part for bodily injury or death on account of malpractice may file a complaint in any court of law having requisite jurisdiction. No dollar amount or figure shall be included in the demand in # any malpractice complaint, but the prayer shall be for such damages as are reasonable in the premises.”
* # # # * *
“R.S. 40:1299.47(B)
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.”

At the time of the filing of the petition the proposed complaint against relators had not yet been presented to a medical review panel as required by R.S. 40-1299.47(B). However, by the time relators’ exceptions came to trial plaintiffs amended their complaint to add an allegation that relators were qualified health care providers under the statute, a medical review panel was' convened, and the panel rendered its opinion. All other allegations of the petition were reiterated. The judgment of the trial court denied relators’ exception based on R.S. 40:1299.47(B) as moot and simply denied the other exception based on the violation of R.S. 40:1299.41(E).

The trial court’s holding that the exception under R.S. 40:1247(B) was moot is apparently based on the reasoning that the original petition did not state a cause of action because it did not contain allegations either that relators were not covered, or that the claim had been presented to a medical review panel which had rendered an opinion as in Dufrene v. Duncan, 371 So.2d 1215 (La.App. 4th Cir. 1979). He reasoned further that the ‘amendment to the petition related back to the original filing under LSA-C.C.P. Art. 1153, so that the original infirmity of the petition was cured by the amendment and the exception of no cause of action became moot.

However, in Chivleatto v. Divinity, 379 So.2d 784 (La.App. 4th Cir. 1979) we held that the failure on the part of a plaintiff to allege that the medical defendant is not a qualified health provider, does not make the petition vulnerable to an exception of no cause of action. We pointed out that a more proper procedural device leading up to the dismissal of such a defective petition is the dilatory exception of prematurity as in Everett v. Goldman, 359 So.2d 1256 (La.1978). Thus, we have concluded that plaintiffs stated a cause of action in their original petition, the amendment was unnecessary in order to cure any defect in that regard, and the judgment overruling the exception of no cause of action based on R.S. 40:1299.47(B) was correct.

As to the exception based on R.S. 40:1299.41(E) we have concluded that rela-tors’ position has merit and they are entitled to relief. The statute is unequivocal. It limits the prayer for damages against qualified health providers to such damages “as are reasonable in the premises” and specifically prohibits the inclusion of a dollar amount in the prayer. In Everett v. Goldman, supra, the constitutionality of this provision was specifically upheld with the court noting the legislature’s belief that this provision would have “a beneficent influence in effecting reasonable jury awards, gradually causing them to be reduced to what are viewed as more appropriate levels.” Where a statute confers a specific benefit on a class of defendants including relators and that statute was ignored by plaintiffs, relators suffer irreparable injury in that they are subjected to a lawsuit specifically prohibited by the legislature. Furthermore, as we interpret the court’s opinion in the Everett case subjecting rela-tors to trial before a jury with the specific dollar amount included in the prayer might result in irreparable injury to relators. We are not persuaded by plaintiffs’ argument that the statute is not applicable because some of the defendants are not covered by the act. Plaintiffs’ inclusion of defendants who are not covered cannot operate to deprive the covered defendants of their rights under the statute.

Under the provisions of the act plaintiffs have no cause of action against relators for damages in the amount of $1,764,000; their only cause of action being for damages “as are reasonable in the premises.” Thus, the trial court erred in overruling this exception and same will be maintained with leave to plaintiffs to amend their petition as set forth in C.C.P. Art. 934.

Accordingly, the portion of the judgment of November 9, 1979, overruling relators’ exception based on R.S. 40:1299.47(B) is affirmed, but that portion of the judgment overruling relators’ exception based on R.S. 40:1299.41(E) is reversed. The exception is maintained with plaintiffs given leave to amend their petition to strike out the dollar amount of damages claimed against rela-tors and to substitute for the dollar amount an amount of damages “as are reasonable in the premises.” The case is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: PRICE, Judge. .

text:
    Billie Ruth Dykes AUGER, Plaintiff-Appellant, v. Kenneth Donald AUGER, Defendant-Appellee.
    No. 14018.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellant.
    Rabun & Post by Armand F. Rabun, Farmerville, Richard R. Storms, Ruston, for defendant-appellee.
    Before PRICE, HALL and McCLEN-DON,. JJ.
   PRICE, Judge. .

Billie Ruth Dykes Auger brought this action against her former husband, Kenneth Donald Auger, seeking to annul the conveyances made by defendant of an undivided interest in several tracts of land which plaintiff contends were made by him prior to their separation with the intent to defraud plaintiff of her community interest in the properties. Pursuant to the sustaining of an exception of no cause or right of action, plaintiff by amended pleadings abandoned her request to annul the sales and sought to recover judgment against defendant for the amount which she contends she was damaged by the alleged fraudulent transfers.

The trial court found defendant executed the conveyances to his father and brother with the intent to reduce plaintiffs community interest and in fraud of her rights. The court awarded her judgment for $13,-302.25 which was calculated as being one-half the amount by which the market value of the husband’s interest in the several tracts exceeded the consideration recited in the subject conveyances.

Plaintiff appealed and assigned as error the trial court’s failure to award her damages based on the full market value of the properties since it was shown no consideration had been paid. By supplemental brief filed after oral argument, plaintiff also questioned the correctness of the trial court’s sustaining of the exception of no cause or right of action. The exception was based on the premise that the wife has no right of action to rescind or annul the conveyances by the husband of community property, but must seek redress under La. C.C. Art. 2404 as interpreted by the Supreme Court in Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956). Thigpen holds that Art. 2404 “vests in the wife by necessary implication a right of action to hold her husband responsible, in an action for settlement of the community property following its dissolution by a judgment of separation from bed and board or divorce; for the losses resulting to her by reason of the husband’s sales of the community property during the marriage, disposed of by fraud and with intent to injure her.”

Thigpen also holds that “. . . the law does not give to a wife, who has sustained injury by a conveyance of community property in fraud of her rights, a right of action for rescission of the transaction— such as the revocatory action available to creditors for the purpose of setting aside the fraudulent conveyances of their debtors.”

Thigpen does not hold, however, that an action cannot be maintained by the wife to annul a simulated sale where there was no intent to actually divest title and the transaction is a mere sham. A simulated contract has no substance at all and may be declared null at any time at the demand of any person in interest. Spiers v. Davidson, 233 La. 239, 96 So.2d 502 (1957); Williams v. Smith, 340 So.2d 401 (La.App. 2d Cir. 1976).

While the trial court m ¡,y have misinterpreted Thigpen in sustaining the exception of no cause or right of action, plaintiff nevertheless acquiesced in the ruling of the court • and proceeded to try the case under the theory of the Thigpen construction of Art. 2404. We also note that the vendees in the disputed conveyances were not made defendants which would preclude rendition of a valid judgment annulling the transfers in the present posture of the case. Furthermore, the application of Art. 2404 as expanded by Thigpen would appear to afford plaintiff an adequate remedy under the circumstances which have developed in this litigation.

By answer to plaintiff’s appeal, defendant questions the finding of the trial court that he defrauded plaintiff’s interest in the community by the conveyances because he contends the community owed a substantial indebtedness to his father and the conveyances were in fact intended to be in partial satisfaction of this indebtedness.

We find no error in the trial court’s conclusion that the sales were made in fraud of plaintiff’s community rights, but find the calculation of damages by the court to be in error and amend the judgment to increase the award to plaintiff and affirm.

The parties married in June 1963 and physically separated about April 12, 1971. Prior to the plaintiff filing suit for a legal separation on May 5, 1971, defendant conveyed his interest by authentic act in seven tracts of land which had been acquired in indivisión with his father, J. A. Auger, and his brother, Don Juan Auger, during the marriage with plaintiff. Six of the conveyances were made to J. A. Auger and Don Juan Auger jointly for recited cash considerations of between $500 and $5,000 which in all total $11,500. The seventh conveyance was to Don Juan Auger for the stated cash consideration of $11,000 and assumption of the balance due on the purchase price of the property transferred.

The plaintiff and defendant were reconciled in January 1972. However, they separated again in September 1972 and plaintiff secured a judgment of separation on January 3,1973, and ultimately the parties were divorced.

Plaintiff testified that following her reconciliation with defendant in January 1972, he admitted to her that the transactions in question were invalid and were effected for the sole purpose of preventing plaintiff from “getting her part of the property.” However, she testified he assured her that since they had resumed their marital relation, title to the properties would be recon-veyed to the community. This testimony was substantiated by the testimony of Mrs. Janelle Auger, divorced wife of Don Juan Auger, who stated that defendant divulged to her his plan to place title in his young niece so that plaintiff would be prevented from claiming ownership in these tracts.

Although defendant admits that at the time he executed the transfers he was aware that his marriage was failing, he contends that his sole motive for these conveyances was to simply liquidate part of his indebtedness to his father before the properties became entangled with legal obstacles due to his domestic troubles. His explanation of this indebtedness involves a complicated business relationship existing among defendant, his brother, and father. The three engaged in the purchase and sale of timber and operated a corporation known as “J. A. Auger and Sons.” All three were required to co-sign notes of indebtedness on loans from the several banks furnishing operating capital. Prior to the disputed conveyances defendant engaged in several large timber purchases separate and apart from his father and brother. He contends he sustained substantial losses on these ventures and that his father co-signed loans made by him at the Farmerville Bank to cover these losses.

The trial court found that the evidence established a prima facie case that the defendant had deliberately transferred the properties with the intent to reduce his wife’s community interest. The court based its conclusion on the following factors: that the parties had experienced marital difficulties and physically separated a few days prior to the dates of the transfers; the filing of a suit for legal separation was imminent; the vendees in the deeds were defendant’s closest relatives and business associates; the cash consideration recited in the deeds was admittedly never paid to defendant; no attempt was made to reduce to writing any understanding among the parties as to what specific indebtedness was to be credited with the amounts shown in the deeds; it appeared that arbitrary “round figures” were placed in the deeds as the expressed consideration; and the single most valuable property interest was conveyed to Don Juan Auger alone, who never testified concerning the manner in which the recited cash consideration of $11,000 was to be paid.

We find the evidence amply supports the trial court’s conclusion that the transfers were made with deliberate intent to reduce plaintiff’s community interest and therefore no manifest error was committed in this regard.

The trial court found the expert testimony to establish a total market value of $52,104.50 for all of the subject properties. Plaintiff does not take issue with this finding on appeal. However, she contends the trial court should have awarded her one-half that value without deducting from that sum the cash consideration recited in the seven deeds as there is no evidence to corroborate J. A. Auger’s testimony that he gave defendant credit for these specific amounts on the indebtedness owed to him by defendant. We are constrained to agree with plaintiff’s position. Since defendant admits the recited cash considerations were not paid in any of the transactions, the burden is upon him to prove with some degree of certainty the actual consideration on which he relies to support the conveyances.

The record is unclear as to any specific indebtedness which defendant or the community owed to J. A. Auger at the time of the conveyances. The evidence at best shows there was a probability of substantial liability resulting from J. A. Auger being either a co-maker or endorser of loans for defendant. It is not clearly shown that any of the loans were in default at the time of the transfers.

We therefore conclude the trial court erred in deducting the recited amount of cash consideration from the established market value in fixing the amount plaintiff was damaged.

The parties did not bring an action for an accounting and liquidation of the community in this proceeding and when such an action is instituted, defendant will then have an opportunity to establish the full amount of any indebtedness the community actually owes to his father and may make proper claim for an offsetting credit in that proceeding.

The judgment appealed is amended to increase the amount awarded to the sum of $26,052.25 and as amended is affirmed. Costs of this appeal are assessed to defendant.


author: McClendon, Judge.

text:
    Succession of Vernie Lee WHITE. Elvie SUDDS, Plaintiff-Appellant, v. Ben SHERMAN, Jr. and Maxie Lee Whitaker, Defendants-Appellees.
    No. 14037.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiff-appellant, Elvie Sudds.
    Luther S. Montgomery, Shreveport, for defendant-appellee, Ben Sherman, Jr.
    Nelson, Hammons & Johnson by Walter F. Johnson, III, Shreveport, for defendant-appellee, Maxie Lee Whitaker.
    Before' PRICE, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

Plaintiff, universal legatee under the purported olographic last will and testament of Vemie Lee White, appeals a judgment declaring the will invalid for the reason it was not written by the decedent. We affirm.

Decedent, Vernie Lee White, died on January 20,1978. In February, 1978, the plaintiff proponent, Elvie Sudds, qualified as administratrix pro tempore of the succession. She thereafter sought to have probated the purported last will and testament which named plaintiff as the sole heir of the decedent. The probate was opposed by Ben Sherman, Jr., surviving spouse of the decedent, and the other surviving heirs.

The purported will was declared invalid by the trial court because it was dated simply November 15. The trial court reasoned that since the year was not apparent or even suggested anywhere in the writing, the will was without a date.

Plaintiff appealed that decision to this court [367 So.2d 161 (La.App.2d Cir. 1979)]. We held the incomplete date was uncertain and ambiguous and we remanded to the trial court to give. plaintiff an opportunity to establish the year in which the will was written.

On remand the trial judge decided that while proponent had established the will was written in 1977, the will was invalid because it was not in fact written by the decedent.

The sole issue for our review is whether there was sufficient proof presented to establish the will was written by the decedent. The applicable provisions of our law concerning the proof needed to authenticate an olographic testament are:

La. Civil Code art. 1588:
The olographic testament is that which is written by the testator himself.
In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of State.
La. Code of Civil Procedure art. 2883:
The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated and signed in the testator’s handwriting. The court must satisfy itself, through interrogation or from the depositions of the witnesses, that the handwriting and signature are those of the testator, and must mention these facts in its procés verbal.
La. Code of Civil Procedure art. 2903:
At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.

The plaintiff proponent is the niece of the decedent and lived with the decedent for seven years between 1950 and 1957. Plaintiff also took care of the decedent during the last months before her death. Shortly before her death, as decedent was leaving to go to the hospital, the decedent allegedly gave plaintiff a Bible which contained the will folded between the pages.

At the hearing, proponent herself was the only witness to testify unequivocally that the will was entirely written, dated and signed by the decedent. She testified that all the handwriting and the signature on the will looked alike and recognized all of the lines as being the handwriting of the decedent.

However, there was no foundation laid wherein proponent stated that during the lifetime of the decedent she had often seen her write and sign her name. Even though proponent lived with her for seven years ending in 1957, proponent demonstrated at trial that she was not able to say whether many of the exhibits identified by others as being written by decedent were in fact written by the decedent.

The only other witness relied on by the proponent was the decedent’s sister. She testified that there were parts of the will that appeared to be written by the decedent, but there were other parts that appeared not to have been written by her.

The opponents of the will offered testimony of several of decedent’s relatives and a handwriting expert.

Decedent’s husband, married to her for 17 years until their separation in 1977, had many opportunities to observe her handwriting. He received letters from her frequently when he was living away from her. He testified that the writing contained in the will was not that of Vernie Lee White.

The husband’s opinion is corroborated by that of a handwriting expert. She examined numerous documents including checks, letters, and other correspondence previously written by the decedent. It was her opinion that the will was not written by Vernie Lee White.

It is obvious from the foregoing that there was a substantial evidentiary basis to support the trial judge’s conclusion that the will was not written by the deceased.

Accordingly, the judgment appealed from is affirmed at the cost of appellant.


text:
    Barbara D. GOODWIN, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant-Appellee.
    No. 14038.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      John D. Goodwin, Harold D. Vaught, Shreveport, for plaintiff-appellant.
    James A. McGraw, Willie D. Maynor by James A. McGraw, Baton Rouge, for defendant-appellee.
    Before PRICE, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

Following judicial review affirming administrative determination that appellant was eligible for unemployment benefits only after hearing before an appeals referee on July 28, 1978, but not at the time of initial determination on May 28, 1978, Mrs. Goodwin filed this appeal. We reverse the trial court.

This claimant was employed at the Plain Dealing Academy, Plain Dealing, Louisiana, for part of the year 1978 to fill in for a regular teacher who was on maternity leave. At the end of that school year, since she had no assurance of employment as a teacher in the fall and no other employment in sight, she applied for unemployment benefits.

Based upon what was later determined to be a misunderstanding of what she said about minimum acceptable salary, she was denied benefits by a claims interviewer with this comment:

“Cl states only qualified to teach. However, she’d accept light clerical work (no typing) at a rate of $755 per mo. There is no teaching this summer and Cl’s wage demand is excessive for other work.
“Disq. 1600(3) 5-28-78”

The reference in the quotation is obviously to La.R.S. 23:1600(3) which provides the basis for eligibility for benefits and requires a finding by the administrator that the unemployed individual is able to work, available for work, and is conducting an active search for work. Claimant was found not to meet “availability” requirement, because of the $755 minimum she was thought to be demanding.

Following an appeal from this determination, a hearing was held before an appeals referee at which Barbara Goodwin was the only witness. The appeals referee made the folio wing, findings of fact:

“The claimant, female, age thirty-nine, has worked for Plain Dealing Academy for about three years, two of these years being as a full-time teacher and one year teaching in the place of other teachers. Her last period of employment was as a fill-in teacher as another teacher was on maternity leave and she was only hired for the duration of that school term. On June 2, 1978 she signed a completed Employment Security Statement LDES-259 which stated she was available for work and was qualified to teach and do light clerical work not involving typing and also indicated the minimum wage acceptable would be $755.00 per month. In sworn testimony this date she has stated that the statement as given was true except that she felt that she failed to communicate to the Agency that the salary quoted was in regard to a teaching job and not as a job as a clerical worker. She has also testified that during the calendar year of 1977 she was actually employed in a light clerical position in the City of Vivian, thus being a part-time job before her last period of employment with Plain Dealing Academy and has also stated that as of the date of this hearing she is willing to commute as far as Shreveport to work and would accept the prevailing wage rate in light clerical work or sales work with no restrictions on hours if the hours were comparable to her former positions. She has also stated that she has been actively seeking employment in the Shreveport area.”

From this the appeals referee concluded that claimant had by her testimony “lifted any restriction regarding her availability” and “should be eligible for benefits.” He then affirmed the original determination that claimant was not available for work as of May 28,1978, but modified it to show she met the availability requirements as of July 28, 1978, and so was eligible for benefits as of that date.

Further appeal to the Board of Review resulted in refusal by that board to hear the appeal and affirmation of the decision of the appeals referee.

Judicial review, from which the present appeal was taken, resulted in affirmation of the appeals referee for the stated reason that it could create an unfair situation in the school system if many of its employees were to file for unemployment during the summer term, knowing that no work as a teacher will be available until September when school commences again. This statement indicates that the trial judge was under the impression that appellant was under contract or could anticipate resuming her teaching duties at Plain Dealing Academy in the fall term.

The Findings of Fact by which the trial court and we are bound under La.R.S. 23:1634 do not support this conclusion. This statute limits judicial review to questions of law, assuming the findings of facts are supported by competent evidence and absent any frahd.

The sole issue before this court is whether as a matter of law the conclusion of the appeals referee based upon his own findings of fact correctly fixed claimant’s eligibility for benefits as of the date of the hearing rather than the date of the initial determination. We find that it did not.

It is obvious that the appeals referee accepted appellant’s sworn explanation that the $755 salary figure given by her at the initial interview related to her teaching position and not to light clerical work, for which she said she was also qualified and willing to accept, and that she had actually done light clerical work in the year 1977 between her full time and last fill-in teacher employment at the academy. However, he chose to treat this as a lifting of restrictions placed by her on her availability which prevented her from being “available” and hence “eligible” until after the hearing on July 28, 1978.

We are of the opinion that the findings of fact, based upon competent evidence, establish that the misunderstanding occurred at the initial interview and when it was cleared up at the hearing the appellant established as a matter of law that she was “available” and hence “eligible” at the time of initial determination.

In this connection, it is noted that the answer to the petition for judicial review filed in the trial court on behalf of the Administrator prays that the decision of the Board of Review be reversed.

For these reasons the judgment appealed from is reversed and this matter is remanded to the Administrator in order that claimant’s eligibility for benefits may be established in accordance with our findings set forth herein.


author: PRICE, Judge.

text:
    Peter D. CERNIGLIARO, Plaintiff-Appellee, v. MARQUIS MARINE, INC., Defendant-Appellant.
    No. 14040.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.

      Clifford L. Lawrence, Jr., Monroe, for defendant-appellant Marquis Marine, Inc.
    Brown, Wicker, Lee & Barnes, by O. P. Barnes, III, Monroe, for plaintiff-appellee Peter D. Cernigliaro.
    Hudson, Potts & Bernstein, by W. Craig Henry, Monroe, for third-party defendant-appellee Skeeter Products, Inc.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiff filed this redhibitory action to rescind the sale of a boat, motor, and trailer he purchased from defendant. He also sought attorney fees on the theory that defendant should be considered a manufacturer in bad faith as its employees assembled several component parts in outfitting the bass rig in question. Defendant filed a third party action against Skeeter Products, Inc. of Kilgore, Texas, the manufacturer of the boat, seeking to recover any amount for which defendant should be cast in judgment.

The trial court rendered judgment awarding plaintiff a $1,000 reduction in the purchase price plus $500 attorney fees against Marquis Marine and dismissed Marquis’ third party action against Skeeter Products.

Marquis Marine appeals specifying as error: (1) the granting of a reduction of the purchase price in any amount and alternatively, the excessive amount of the reduction; (2) in awarding attorney fees against defendant as a retailer; and (3) in dismissing the third party demand against Skeeter Products.

Plaintiff ordered the bass rig from defendant on May 3, 1978, for a price of $5,943.92. The boat was delivered to him May 6, and on May 8 he attempted to use the boat but the motor failed to start. He returned the boat to defendant who corrected the problem by repairing a pinched wire. The following weekend plaintiff went fishing and after an hour on the water, the carpet in the boat became saturated due to a leak in the front live well tank. Plaintiff returned the boat to defendant the following Monday complaining about the leak and that the motor was not running well. Defendant attempted to repair the leak and tested it with standing water to assure the leak was properly fixed. No defect was found in the motor but the spark plugs and a coil were changed in an effort to appease plaintiff. On the next fishing trip plaintiff again noticed the live well tank leaking and returned it to Marquis for further repairs. This time defendant sent the boat back to Skeeter to be repaired. After its return to him plaintiff experienced further leaking of the live well tank on his next fishing trip. The boat was again returned to Skeeter by defendant and the cause of the leak was ultimately determined and remedied. When the repaired boat was tendered to plaintiff around July 12,1978, he refused to accept it and filed this suit against Marquis.

Defendant contends that the trial judge erred in awarding plaintiff a reduction of the purchase price and alternatively that a reduction of $1,000 was excessive. Louisiana Civil Code Articles 2541, 2543, 2544, and the corresponding jurisprudence recognize that in a redhibitory action the judge may award a reduction of the price where he finds the defect in the thing has merely diminished the value of the thing purchased. “In every redhibitory action if the evidence establishes only a partial failure of consideration, a reduction in the purchase price may be granted to the buyer.” Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975).

The evidence clearly supports a finding of a partial failure of consideration. The defendant admitted that plaintiff should not have been expected to suffer the numerous inconveniences caused by the leakage but argues that it made every reasonable effort to repair the defects. Although the defects were aggravating, they did not render the boat completely useless to plaintiff. Therefore the trial judge acted within his discretion in ordering a reduction in the purchase price. While the sum of $1,000 may be in the upper limits of the discretion of the trial court in making such an award, it is not so excessive to constitute manifest error under the circumstances shown.

The second specification of error concerns attorney fees awarded plaintiff. To obtain attorney fees in a redhibitory action a buyer must prove knowledge of the defect by the seller, although he need not prove willful misrepresentation. The buyer can succeed by showing actual or constructive knowledge by seller. Therefore, if seller knew or should have known of the defect, yet failed to inform buyer of such defect, seller is liable additionally for reasonable attorney fees. See Juneau v. Bob McKinnon Chevrolet Company, 260 So.2d 919 (La.App. 4th Cir. 1972); Rey v. Cuccia, 298 So.2d 840 (La.1974); Wade v. McInnis-Peterson Chevrolet, Inc., supra. No evidence of actual bad faith or knowledge of the defect on the part of defendant is present in the record. Since we are without benefit of written reasons for the judgment, we can only assume that the award of attorney fees was based on finding defendant had constructive knowledge of the defect at the time the bass rig was sold to plaintiff.

Seller-dealers have been charged with constructive knowledge of defects and held liable for attorney fees in cases where the seller installs, assembles, or repairs a particular part and that particular part is defective. The court found the sellers in these cases had placed themselves in the same posture as a manufacturer upon installing, repairing, or assembling the defective object. Wade v. McInnis-Peterson Chevrolet, Inc., supra; Bell v. Fiat Distributors, Inc., 357 So.2d 607 (La.Apps. 1st Cir. 1975).

The circumstances presented here do not warrant the same conclusion. The defendant did not in any way hold himself out as the manufacturer of any of the .component parts of this bass rig. Although Marquis added a motor and made several modifications to the Skeeter boat to make it more convenient for bass fishing, the evidence shows that the main defect in the rig was the leak in the live well tank which was manufactured and attached to the boat by Skeeter Products alone. Therefore, an award of attorney fees against Marquis under these facts was improper.

Lastly, we are presented with the issue of whether the trial judge erred in rejecting defendant’s third party demands against Skeeter Products. Civil Code Article 2531 provides:

In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.

Since we have determined that the only significant defect in the rig was one for which Skeeter Products was solely responsible, Skeeter is liable to Marquis for the losses it sustained under the provisions of Art. 2531. We therefore reverse the part of the judgment rejecting defendant’s third party demands against Skeeter.

For the foregoing reasons, the judgment appealed awarding plaintiff $1,000 plus interest against defendant is affirmed; the judgment awarding plaintiff $500 attorney fees is reversed; the judgment rejecting the third party demand of Marquis Marine against Skeeter Products is reversed; and judgment is rendered in favor of Marquis Marine, Inc. and against Skeeter Products, Inc., in the sum of $1,000 plus interest and all costs of these proceedings including this appeal.


author: MARVIN, Judge.

text:
    James M. PAGE, Plaintiff-Appellant, v. AMERICAN MOTORIST INSURANCE COMPANY, LTD., Defendant-Appellee, Western Casualty & Surety Company, Intervenor-Appellant.
    No. 14041.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 1980.
    En Banc Rehearing Denied April 3, 1980.

      Charles W. Robinson, West Monroe, for plaintiff-appellant.
    Charles W. Robinson, West Monroe, and Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for intervenor-appellant.
    Davenport, Files, Kelly & Marsh by Mack J. Marsh, Monroe, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

The trial court sustained a motion for summary judgment holding that the automobile liability policy in question did not provide uninsured motorist coverage for plaintiff, a guest passenger in the automobile described in the policy, who sustained personal injury in an accident on March 26, 1977.

The ultimate issue is whether or not the policyholder-driver of the car rejected UMC. Other questions concern the retroactive effect, if any, of Act 438 of 1977 (amending LRS 22:1406 to provide that the document in which an insured rejects UMC does not have to be physically attached to the policy) and the relationship of the policyholder’s agent to the defendant insurer (broker, agent, or both).

The law requires that automobile liability policies written in Louisiana contain UMC unless UMC is rejected in writing by the insured. § 1406(D)(1)(a). Statements in an application which is not physically attached to the policy may not be used by the insurer to defeat coverage of the policy. LRS 22:618(A). Henderson v. Minnesota Mutual Life Ins. Co., 347 So.2d 53 (La.App.2d Cir. 1977); Smith v. North American Co. for Life, Accident & Health Insurance, 306 So.2d 751 (La.1975).

The 1977 amendment to § 1406, however, changed the law with regard to physical attachment of documents in which the insured has expressly by his signature rejected UMC. Such a document shall be conclusively presumed to be a part of the policy without regard to physical attachment. While the change may have substantive result, its effect concerns the admissibility into evidence of the document signed by the insured. This change, we hold to be in the nature of remedial or curative legislation which is applied retroactively. See Veal v. Interstate Fire & Casualty Company, 325 So.2d 795 (La.1975); Fullilove v. U.S. Casualty Company of New York, 129 So.2d 816 (La.App. 2d Cir. 1961), writs denied, 1961. Retroactive application of the statute, however, does not resolve the ultimate issue.

The insurer contends that the application, signed by the policyholder (Copeland) in 1975, contains a check-mark expressly rejecting UMC. Perkins, a principal in the insurance agency through which the policy was written, states by affidavit that he discussed the application in every detail with Copeland, that the application was completed before Copeland signed it and that Copeland agreed with Perkins’ recommendation that UMC be rejected. Perkins’ agency is a general insurance agency which writes insurance for about 30 insurance companies. Perkins was a former employee and agent of Allstate Insurance Company. Perkins acknowledged that he was aware that Copeland’s policy in effect with Allstate before 1975 contained UMC and that Copeland’s policy in effect after 1977 (written through Perkins’ agency) contained UMC.

In opposition to the insurer’s motion for summary judgment, Copeland denies that the application was completed when he signed it or that Perkins was in any way authorized to reject UMC for him. Copeland asserts that he told Perkins he wanted full coverage as he had under the Allstate policy, including UMC. Copeland denies signing the application in Perkins’ office and asserts that during his several years of association he would telephone Perkins about Copeland’s liability coverage of the automobiles used by Copeland as a car salesman.

A finding that Perkins was merely a broker or an agent for Copeland does not resolve the question of Perkins’ authority to reject UMC. A principal is not bound by an agent who exceeds his authority. Likewise, a finding that a person is an agent for one party in a transaction, does not preclude, in all circumstances, a finding that he is also an agent for another party in the transaction. See La. CC Art. 3016, 3017; Tiner v. Aetna Life Insurance Company, 291 So.2d 774 (La.1974); Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4th Cir. 1976); Kieran v. Commercial Union Ins. Co. of New York, 271 So.2d 889 (La.App. 4th Cir. 1973); 3 Couch on Insurance 2d 25:95, 26:152, 153. See also Scoggins v. Smith, 342 So.2d 1130 (La.App. 1st Cir. 1977).

The trial court sustained the motion for summary judgment on the grounds that Perkins was a mere broker or agent for Copeland and that the defendant insurer could not be held responsible for the absence of UMC in the policy. The trial court relied on Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728 (La.1973). There the plaintiff-insured sought maximum fire coverage. The agent procured only $10,000 coverage but showed on the invoice to the insured that he procured $100,000 coverage. The insurer paid the $10,000 proceeds to the insured and the insured sued the agent and the agent’s errors and omissions insurer for the excess loss and obtained judgment. These principal defendants brought a third party demand against the insurer, which was denied. The Supreme Court affirmed judgment on the principal demand and on the third party demand, saying, with respect to the third party demand:

“(St. Paul [the errors and omissions insurer] contends that if Darbonne [the agent] is liable to Karam [the property owner-insured], Karam’s principal [Maryland Casualty] would also be liable), [sic] There can be no solidary obligation here. Any liability of Maryland Casualty [the property insurer] to St. Paul would be extinguished by confusion. St. Paul . would respond to Maryland Casualty for Darbonne’s acts which might have caused a loss to Maryland Casüalty, thus becoming at the same time the debtor and the creditor of Maryland Casualty. CC 2217, 2218.” 281 So.2d at p. 733. Bracketed material supplied.

Here we are confronted with the agent’s relationship with , both the insured and the insurer and the insurer is a defendant in the principal demand. This relationship between Copeland and Perkins obviously grew out of their past dealings when Perkins was an Allstate agent. In view of Copeland’s assertions in opposition to the motion for summary judgment, there are genuine issues of fact concerning the ultimate issue, Perkins’ actual vs. ostensible authority to reject UMC, and whether or not dealings between Perkins and the defendant insurer might have enlarged their relationship so that Perkins’ actions or omissions might affect liability of the defendant insurer to the plaintiff.

The determination in summary judgment cases does not concern how the factual issue might be answered, but whether the factual issue exists. Givens v. Richland-Morris Agency, 369 So.2d 1184 (La.App. 2d Cir. 1979). The circumstances here presented do not support a determination that there is no genuine issue of material fact.

Summary judgment is REVERSED and this case is remanded for further proceedings.