text:
    WATERWORKS DISTRICT NO. 1 OF the PARISH OF TERREBONNE, State of Louisiana v. Alcide BABIN, Jr. D/B/A Contractors.
    No. 13956.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Jerald P. Block, Thibodaux, for relator.
    Bernard F. Levy, Houma, for respondent.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a damage suit, in which Waterworks District No. 1 of the Parish of Terre-bonne seeks damages from defendant, Al-cide Babin, Jr., doing business as Alcide Babin, Contractors, for allegedly faulty paving work done by defendant. To the petition, defendant Babin filed a motion for a stay of proceedings, alleging that, under the contract between the parties, all disputes between the parties must be referred to arbitration. After a hearing before a judge of the Thirty-Second Judicial District Court, the stay order was granted by judgment of November 26, 1979.

On June 4, 1980, plaintiff filed a motion to rescind the stay order, which was dismissed when plaintiff failed to appear on the date set for trial. On June 23, 1980, plaintiff filed a second motion to rescind the stay order. After a hearing before a different judge, a judgment was signed rescinding the stay order and ordering that the matter proceed forthwith to trial on the merits.

Thereafter, Mr. Babin applied to this court for supervisory writs, alleging the impropriety of the rescission of the stay order. We issued alternative writs of mandamus and certiorari, ordering that the stay order be reimposed or that the record be sent up for review. The alternative has been elected, and we now have the record for decision.

According to the motion for a stay of proceedings, the Project Manual, which forms part of the contract between the parties, contains the following provision:

“All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof except for claims which have been waived in the making or acceptance of final payment as provided in paragraph 14.18 shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. This Agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitra-tions shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.”
R.S. 9:4202 provides:
“If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.”

Undoubtedly, it was because of the foregoing contractual and statutory provisions that the stay order was initially granted. The motion to rescind the stay order is based on the allegation that, under the terms of the contract between the parties, defendant was no longer entitled to arbitration. In brief, the following provisions of the Project Manual are quoted:

“DECISIONS ON DISAGREEMENTS
“9.9 ENGINEER will be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder. In his capacity as interpreter and judge he will exercise his best efforts to insure faithful performance by both OWNER and CONTRACTOR. He will not show partiality to either and will not be liable for the result of any interpretation or decision rendered in good faith. Claims, disputes and other matters relating to the execution and progress of the Work or the interpretation of or performance under the Contract Documents shall be referred to ENGINEER for decision; which he will render in writing within a reasonable time.
“9.10 Either OWNER or CONTRACTOR may demand arbitration with respect to any such claim, dispute or other matter that has been referred to ENGINEER, except any which have been waived by the making or acceptance of final payment as provided in paragraph 14.18, such arbitration to be in accordance with Article 16. However, no demand for arbitration of any such claim, dispute or other matter shall be made until the earlier of (a) the date on which ENGINEER has rendered his decision or (b) the tenth day after the parties have presented their evidence to ENGINEER if he has not rendered his written decision before that date. No demand for arbitration shall be made later than thirty days after the date on which ENGINEER rendered his written decision in respect of the claim, dispute or other matter as to which arbitration is sought; and the failure to demand arbitration within said thirty days’ period shall result in ENGINEER’S decision being final and binding upon OWNER and CONTRACTOR. If ENGINEER renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence but shall not supersede the arbitration proceedings, except where the decision is acceptable to the parties concerned.” (Emphasis added.)

The record is devoid of any evidence that any disagreement between the parties was referred to the engineer, or as to when he made a decision thereon.

In any event, however, we are of the opinion that the applicable law is R.S. 9:4203, which provides, in part:

“The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.
“The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.”

The foregoing provision of law has been interpreted to mean that a contract for arbitration requires that disputes be settled by that method, and that the courts can only order the parties to proceed to arbitration. The question of whether Babin has a right to arbitration is a procedural question which must also be submitted to the arbitrator. See Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La. 1974).

In this case, there is no question as to the existence of the arbitration contract, or of the failure of both parties to abide by it. The trial judge, therefore, had no authority to lift the stay order, or to do anything other than order the parties to proceed to arbitration. Since this latter relief was not requested, the rule should have been dismissed.

Accordingly, the writ issued herein is made peremptory, and it is ordered that the judgment rescinding the stay order is reversed and set aside, at plaintiff’s cost.

WRIT MADE PEREMPTORY.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Katie Hodges WING v. Frances W. WING.
    No. 14007.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Clinton Hyatt, Jr., Baton Rouge, for relator.
    William G. Whatley, Baton Rouge, for respondent.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This matter arises out of a custody proceeding filed by the father, Frances W. Wing, seeking custody of his child from the mother, Katie Hodges Wing.

During the course of the proceeding, Frances W. Wing (who refers to himself as defendant, but who is actually plaintiff in the rule for custody), plaintiff, filed a request for the Production of Documents under the Code of Civil Procedure, requesting that Katie Hodges Wing (hereinafter called defendant) produce for inspecting and copying all records of the Southeast Louisiana Hospital at Mandeville, and of Dr. Theodore Denton of Fall River, MA., and of Dr. Noel Olson of Fall River, MA., relative to defendant’s mental condition and treatment. In addition the request sought from defendant the production “in original form” of a medical authorization allowing plaintiff to examine all hospital records, both in-patient and out-patient, and to obtain copies of such records, and to discuss defendant’s condition and treatment with any physician who has treated and examined her.

Defendant responded to the request for production by declaring that none of the requested records were in her possession and she was, therefore, unable to produce them.

Defendant objected to the request for production of a medical authorization signed by her which would authorize the plaintiff to obtain any medical records or information relative to her past treatment.

The defendant further responded to the request for production by filing a Motion for Protective Order that asserted the doctor/patient privilege and prayed for an order of court limiting the defendant’s pursuit of discovery relative to her physical and mental condition to those matters permitted by LSA-C.C.P. art. 1464.

After hearing, the trial court denied defendant’s motion for a protective order, and ordered the defendant to produce the documents requested by plaintiff. Defendant, Katie Hodges Wing, applied to this court for supervisory writs, directing the trial judge to grant the protective order as prayed for by her. We issued alternative writs ordering the trial judge to grant the protective order, or that the record be sent up for review. The alternative has been elected, and we now have the record for decision.

Defendant contends that the order of the trial court directing her to produce the records and medical authorization is violative of LSA-R.S. 13:3734 which provides for privileged communication between a health care provider and patient. The statute provides in pertinent part:

“B. Except as hereinafter provided, in civil cases, proceedings before a medical review panel, pursuant to R.S. 40:1299.47 and in medical and dental arbitration proceedings, pursuant to R.S. 9:4230-4236, and in proceedings and investigation preliminary to all such actions, a patient or his authorized representative, has a privilege to refuse to disclose and to prevent a health care provider from disclosing any communication, wherever made, relating to any fact, statement or opinion which was necessary to enable that health care provider or any other health care provider to diagnose, treat, prescribe, or act for the patient.
“C. There shall be no privilege for any communication under this Section where:
(1)Either before or after probate, upon the contest of any will executed, or claimed to have been executed, by such patient, or after the death of such patient, in any action involving the validity of any instrument executed, or claimed to have been executed by him, conveying or transferring any immovable or movable property, any health care provider who has attended said patient may disclose any communication regarding the patient which was necessary to enable him to diagnose, treat, prescribe or to act for such deceased.
(2) After the death of the patient, the executor of his will, or the administrator of his estate, or the surviving spouse of the deceased, or if there be no surviving spouse, the children of the deceased personally, or if minors, by their representative, may give consent, in any action or proceeding brought to recover damages on account of the death of the patient, to permit any health care provider who may have attended said patient at any time to disclose any communication regarding said patient which was necessary to enable him to diagnose, treat, prescribe or act for such deceased.
(3) If any person brings an action to recover damages, in tort or for workmen’s compensation under federal or state laws, for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any health care provider who has attended such person at any time may disclose any communication which was necessary to enable him to diagnose, treat, prescribe or act for said patient.
(4) The bringing of an action, to recover for the death of a patient, by the executor of his will, or by the administrator of his estate, or by the surviving spouse, or if there be no surviving spouse, by the children personally, or, if minors, by their representative, shall constitute a consent by such executor, administrator, surviving spouse, or children or representative to the disclosure of any communication by any health care provider who may have at any time attended said deceased.
(5) If any health care provider reasonably believes in good faith that any legal proceeding enumerated in Paragraphs (3) and (4) under this Subsection, has or may be instituted for or on behalf of said patient, such health care provider may disclose any communication acquired by him which was necessary to enable him to diagnose, treat, prescribe or act for said patient.”

The privilege created by the quoted provision is clearly applicable since a child custody case is not one of the exceptions set forth in Section 3734. It follows, therefore, that to require defendant to produce the documents would deny her the right to the statutory physician/patient privilege to which she is entitled under the law.

Accordingly, the writ issued herein is made peremptory, and it is ordered that the judgment of the trial court denying the Protective Order and ordering Katie Hodges Wing to comply with the Request for Production of Documents is reversed and set aside. The trial judge is hereby ordered to grant the Protective Order as prayed for by Katie Hodges Wing.

Costs are assessed against Frances W. Wing.

WRIT MADE PEREMPTORY.


author: EDWARDS, Judge.

text:
    CENTURY 21 ACADIA REALTY AND DEVELOPMENT COMPANY, INC. v. Carter M. BROUGH and Frances Hodgson Brough.
    No. 13338.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 1980.

      Robert P. Cuccia, Houma, for plaintiff and appellant.
    Thomas L. Wright, Houma, for defendants and appellees.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Century 21 Acadia Realty and Development Company, Inc., hereinafter Century 21, brought suit against Carter M. Brough and Frances Hodgson Brough seeking $2,700 in damages, attorney fees of $300 or thirty-three percent of the amount of damages awarded, whichever was greater, and all costs. Century alleged that defendants had breached their contract to purchase certain real estate in Terrebonne Parish and that the breach triggered penalty provisions calling for the damages sought. Defendants denied Century’s claims and, as plaintiffs in reconvention, demanded return of their purchase deposit of $1,000 with legal interest.

By agreement of all parties, the matter, in lieu of trial, was submitted on joint stipulations of fact, attachments and briefs. Judgment was eventually rendered in favor of defendants-reconvenors, the Broughs, ordering a refund of their $1,000 deposit together with interest and all costs. Plaintiff’s suit was dismissed at its costs. Century 21 appeals. We affirm.

A review of the record indicates that on August 3, 1978, the Broughs contracted to purchase certain property from Mr. and Mrs. Roger Aucoin for $45,000. Century 21 was the real estate agency and Harris Pitre the selling agent.

Conditioning the sale was the ability of the Broughs to borrow $35,000 at interest not exceeding the prevailing rate and for a term of thirty years. Harris Pitre accepted a $1,000 deposit from the Broughs. This deposit was not earnest money.

In the purchase agreement were the following applicable provisions:

“Should purchaser or seller be unable to obtain the loan stipulated above within 60 days from acceptance hereof, this contract shall then become null and void and the broker is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan subject to approval of title shall constitute obtaining of loan. Purchaser agrees to make a good faith effort to secure a loan. Failure of purchaser to make a written application and furnish all required financial information for a loan with an approved mortgagee within the contemplated period will be evidence of breach of contract and the deposit will be ipso-facto forfeited.”
“It is agreed that time is of the essence and no formal placing in default is necessary. In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to an amount equal to the deposit as damages, or the seller may demand specific performance. If the seller chooses to declare the deposit forfeited, the real estate agency holding the deposit is authorized to remove the deposit from the Escrow Account for the purpose of first paying the real estate commission and remitting the excess, if any, to the seller. This action shall not stop seller from proceeding against the purchaser for the balance of his damages, nor the real estate agency for the balance of the real estate commission in the event the deposit does not exceed the real estate commission.”
“If this offer is accepted, seller agrees to pay the broker’s commission of 6 %. The commission is earned by broker when this contract is signed by both parties or when the conditional mortgage loan, if any, has been secured, or at the time either party breaches this contract. Either party who fails, for any reason whatsoever, to comply with the terms of this contract, is obligated and agrees to pay the broker’s commission and all fees and costs incurred including attorney’s fees of the party not at fault and those of the real estate agency’s attorney. In the event real estate agency has to sue for its commission, the attorney’s fees are hereby fixed at $300.00 or 33% of the amount collected, whichever is greater.”

Shortly after the purchase agreement was signed, the Broughs contacted Mr. Paul H. Duet, Vice-President and Manager of the Houma office of the First Federal Savings and Loan Association. Duet informed the Broughs that his institution was not, at that time, taking applications for terms of over twenty-five years. On August 8, 1978, the Broughs then applied for a $25,000 loan for twenty years. The First Federal Savings and Loan Association approved this application on September 13, but it was withdrawn by defendants on September 19.

On October 10, 1978, defendants through counsel, claimed that since no loan had been obtained within sixty days, the purchase agreement was null and void and their $1,000 deposit must be refunded. Plaintiff, alleging that defendants, by failing to apply for the loan specifically mentioned in the purchase agreement, were in bad faith, demanded $2,700 in real estate commission and subsequently brought this action.

No reasons for judgment were provided by the trial court. It is clear however, that the trial court did not find defendants in bad faith. Further, defendants apparently satisfied their obligation to seek a loan by making the application they did with only one lending institution. Any other findings would have necessitated a judgment for the plaintiff.

When a purchaser, through no fault of his own, is unable to obtain the loan as provided for in the purchase agreement, he may invoke an available provision in the contract conditioning the entire agreement on his ability to make said loan, declare the contract null and void and demand the return of his deposit. Burdon v. Harvey, 385 So.2d 514 (La.App. 4th Cir. 1980); Williams v. Enmon, 380 So.2d 144 (La.App. 1st Cir. 1979), writ denied 383 So.2d 12 (1980).

Such a suspensive condition is solely for the purchaser’s benefit and if the condition remains unfulfilled because of the purchaser’s fault, it will be presumed fulfilled and the condition may not be invoked as a defense to the contract’s enforcement. LSA-C.C. Art. 2040.

A purchaser must, in good faith, make reasonable efforts to obtain an agreed on loan. Braden v. Reisch, 125 So.2d 781 (La.App. 4th Cir. 1961); Williams v. Cormier, 100 So.2d 307 (La.App. 1st Cir. 1958); Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927).

Counsel for Century 21 urges that the Broughs’ failure to actually apply for a $35,000 loan for thirty years amounts to a bad faith failure to obtain the loan. Aubert v. Bourg, 259 So.2d 103 (La.App. 4th Cir. 1972), is cited as authority.

Aubert is not in point. In that case, the purchaser offered to put up as collateral for the loan more property than was called for in the purchase agreement. When the loan was approved, the purchaser tried to set up as a defense to the sale the fact that no loan had been made without the extra property. The court disagreed, holding that the purchaser had simply waived the right to put up less property and that the suspensive condition had been fulfilled. Aubert does not hold that a purchaser must apply for a loan exactly as called for in the purchase agreement. It simply states that if a purchaser obtains a loan under less favorable conditions after waiving a suspensive condition beneficial only to him, he may not claim that condition as unfulfilled.

The Broughs did not apply for a thirty year loan at First Federal Savings because Mr. Duet had informed them that his institution would not make such a loan at that time. To find the Broughs in bad faith for not applying for a loan which would not be granted would be to punish a party for not doing a vain and useless thing. This court will not indulge in such a fanciful exercise.

Century 21 also urges that defendants are in bad faith because they only applied for a loan at one institution. Brewster v. Yockey, 153 So.2d 489 (La.App. 4th Cir. 1963), is cited as requiring more than one loan application.

We find counsel’s use of Brewster to be inaccurate. Brewster holds that a purchaser whose loan application is refused at one institution must apply at others or be in bad faith when there is evidence in the record that another institution would have approved the loan. See also Liuzza v. Panzer, 338 So.2d 689 (La.App. 4th Cir. 1976). Furthermore, no case flatly requires more than one loan application.

There is no evidence in the record that any other institution would have approved a $35,000, thirty year loan to defendants. There is no evidence that plaintiff offered to help defendants locate such a lender. Since the Broughs invoked the sus-pensive condition in their favor, it falls to the plaintiff to prove that defendants were in bad faith and are precluded from that defense. On plaintiff’s failing to do so, the defense of an unfulfilled condition must stand.

For the foregoing reasons, the trial court judgment is affirmed. All costs, both trial and appellate, are to be paid by Century 21 Acadia Realty and Development Company, Inc.

AFFIRMED.


author: ELLIS, Judge.

text:
    Windle L. SHOLAR, Jr. v. EAST BATON ROUGE PARISH COUNCIL et al.
    No. 13719.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    John W. Fichtel, III, Richard C. Cadwal-lader, Baton Rouge, counsel for plaintiff-appellant, Windle L. Sholar, Jr.
    James B. Doyle, Baton Rouge, counsel for intervenors-appellees, Harlon W. Cowsar, Randall K. Purcell, Frank E. Williams, David O. Percel, Andrew J. Helouin, Joseph A. Donahue and Pamela Bickjam.
    Ronald F. Defrances, Baton Rouge, counsel for defendants-appellees, Vincent C. Ferachi & Gerald C. Ferachi.
    Larry D. Book, Baton Rouge, counsel for defendant-appellee, Lynn E. Williams, Baton Rouge.
    Stephen R. Wilson, Asst. ■ Parish Atty., Baton Rouge, counsel for defendants, East Baton Rouge Parish Council, East Baton Rouge Parish Planning, et al.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

The East Baton Rouge Parish Council adopted resolutions on January 10, 1979, and September 26, 1979, by virtue of which they waived certain zoning restrictions on two parcels of ground in Plaza 12 Garden Homes Subdivision. This suit was brought seeking, inter alia, a declaratory judgment declaring “that the East Baton Rouge Parish Council is without authority to grant or to consider and vote upon such waivers or suspensions of or special exemptions or exceptions from the Zoning Ordinance or Subdivision Ordinances and Regulations of East Baton Rouge Parish; and, that all such waivers granted on the subject property (i. e., the Plaza 12 Garden Homes Subdivision) are null and void and without effect.” Mr. Sholar brought the suit as a citizen, a registered voter and the owner of a parcel of ground adjacent to Plaza 12 Subdivision.

On January 23, 1980, the Council rescinded the resolutions of January 10 and September 26, 1979. Thereafter all defendants moved that the matter be dismissed as moot. After a hearing, the Court found that there no longer existed a justiciable controversy, and dismissed the suit. From the judgment of dismissal, plaintiff has appealed.

In Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), the court said:

“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

In In re Gulf Oxygen Welder’s Sup. Prof. Shar. P. & T. A., 297 So.2d 663 (La.1974), the court stated that a justiciable controversy existed when there was “a true interest of the plaintiff (i. e., ‘standing’) and the defendant in having the issue resolved, as well as an adversity of interest between them.”

Despite the rescission of the resolutions directly affecting his property, plaintiff still contends that there remains a justiciable controversy between him and the defendants. We cannot agree. We are asked to make an abstract declaration relative to the authority of the Council to grant waivers, when no such waiver is complained of in the suit, and when no status or right of any party will be immediately affected by our ruling. This would amount to an advisory opinion, which we are not permitted to render.

The judgment appealed from is therefore affirmed at plaintiff’s cost.

AFFIRMED.


text:
    Joseph L. THIBODEAUX v. JONES AND LOCKHART, INC. et al.
    No. 13771.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      L. H. Olivier, Lafayette, for plaintiff and appellant.
    William A. Norfolk, Baton Rouge, for defendants and appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a tort suit brought by Joseph L. Thibodeaux against, inter alia, Crown Zel-lerbach Corporation. According to the allegations of the petition, plaintiff was employed by WAPCO, Inc., as a laborer for the installation of a 32-inch drain line on property belonging to Crown. Plaintiff was in a 12-foot deep trench when the wall thereof collapsed, causing the injuries for which he seeks recompense.

Crown filed an exception of no cause of action to the petition, which was sustained by the trial court. Plaintiff appealed the judgment dismissing the suit as to Crown to this court. We affirmed the judgment insofar as it sustained the exception, but remanded the case to allow plaintiff the opportunity to amend the petition so as to state a cause of action. Thibodeaux v. Jones & Lockhart, Inc., 376 So.2d 970 (La. App. 1st Cir. 1979).

Plaintiff amended his petition and Crown once again filed an exception of no cause of action. Once again, the exception was maintained and once again plaintiff has appealed.

The facts alleged are:
1. Crown is the owner of a parcel of land on which an excavation for a drainage line is being made.
2. The drainage line is being installed by Crown.
3. Plaintiff was employed by WAPCO, Inc., doing general labor on the drainage line.
4. While plaintiff was working in the excavation, its walls collapsed, injuring him.

In his amended petition, plaintiff has now specifically alleged the negligence of Crown in a number of particulars, including the failure to design the drainage project properly, and the failure to furnish proper plans and specifications. We are not enlightened as to the nature of the contractual relationship between Crown and WAPCO. However, if Crown did design the project and furnish plans and specifications; and if this was done negligently; and if WAPCO is an independent contractor; and if the construction of the drainage line is not in the nature of work usually done by Crown’s employees; and if plaintiff was injured as a result of Crown’s negligence, then plaintiff would have a cause of action against Crown.

In Haskins v. Clary, 346 So.2d 193 (La.1977), the court said:

“The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App. 3d Cir. 1965). Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, or indefinite petition is subject to an exception of vagueness, but not to an exception of no cause of action. Brunson v. Mutual Life Ins. Co. of N.Y., 189 La. 743, 180 So. 506 (1938); Goldsmith v. Virgin, 122 La. 831, 48 So. 279 (1909).”

Evidence as to all of the facts which are necessary to plaintiff’s recovery is admissible under the pleadings, except as to Crown’s status as a statutory employer, which is, of course, a matter of defense. We therefore find that plaintiff’s petition, although almost fatally vague, does set forth a cause of action against Crown.

The trial judge inferred from the pleadings, as amended, and from plaintiff’s brief, circumstances which made Crown a statutory employer as a matter of law. While these inferences are reasonable, and convincing, they are not the only reasonable inferences which can be made, and all doubt must be resolved in favor of the validity of the petition.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings according to law. All costs of this appeal shall be paid by Crown, with all other costs to await final disposition of the case on its merits.

REVERSED AND REMANDED.


text:
    Walter Dale TUCKER v. Mr. & Mrs. Earl LIRETTE, Jr., and State Farm Mutual Automobile Insurance Company.
    No. 13774.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Writ Granted Feb. 20, 1981.

      Clifton A. Adcox, New Orleans, Roy S. Lilley, Metairie, for plaintiff and appellant.
    Jerry Schwab, Houma, for defendants and appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries suffered by plaintiff Walter Dale Tucker in a motor vehicle accident with an automobile driven by Mrs. Earl Lirette, Jr. Defendants are Mrs. Lirette, her husband, Earl Lirette, Jr., and their insurer, State Farm Mutual Automobile Insurance Company.

The intersection of Gouaux Avenue and Elizabeth Street in Houma is controlled by a flashing semaphore signal. The flashing red light controls traffic on Elizabeth and the flashing yellow light controls traffic on Gouaux.

Mrs. Lirette was heading east on Elizabeth Street. She stopped at the intersection with Gouaux and looked both ways. She saw nothing approaching and drove out into the intersection. When she was about half way through she heard a motorcycle approaching from her right, and saw plaintiff on his motorcycle just before he struck her right front door.

Plaintiff was heading north on Gouaux. As he approached the intersection he saw Mrs. Lirette stop at the corner. He did not brake or slow down as he approached the intersection at a speed of 30 to 35 miles per hour. The speed limit at that point was 25 miles per hour. When Mrs. Lirette pulled out into the intersection, he stated that he did not have time to apply his brakes. He testified that he was grabbing for the brakes when he hit the car.

The trial judge found Mrs. Lirette to be negligent for failing to see Mr. Tucker, and Mr. Tucker negligent for approaching the intersection at too great a rate of speed. From a judgment dismissing his suit, plaintiff has appealed.

R.S. 32:234 requires that a motorist approaching an intersection controlled by a flashing yellow light may proceed through the intersection only “with caution.” This has been interpreted to place a higher degree of care on a motorist entering such a controlled intersection than is placed on one entering an uncontrolled intersection or one which has a green light. He can enter such an intersection only when he has ascertained that it is reasonably safe to do so, and may not rely entirely on the duty placed on one faced by a flashing red light. Great American Ins. Co. v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976); Lockhart v. McInnis-Peterson Chevrolet, Inc., 205 So.2d 744 (La.App. 1st Cir. 1967).

In this case, it is obvious that plaintiff took no precautions whatsoever as he approached the intersection, that he was driving in excess of the speed limit, and did not observe that Mrs. Lirette had pulled out until it was too late to avoid the accident. He was contributorily negligent, and is precluded from recovery.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


author: ELLIS, Judge. WATKINS, Judge,

text:
    Isaac Anderson MINTON et al. v. Barbara Minton WHITWORTH et al.
    No. 13785.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      Ernest Hartenstine, Denham Springs, for plaintiffs-appellants.
    James A. Smith, II, Baton Rouge, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This is a partition suit, in which plaintiffs Isaac Anderson Minton and Nelson Minton seek to partition in kind three 16-acre tracts of ground situated in the west half of the southeast quarter of Section 36, Township 6 South, Range 3 East in Livingston Parish. Defendants are Barbara Minton Whitworth, Marjorie McGowan St. Amant, Catherine Lynn McGowan Wells, Lucy Vera Minton McGowan, Betty Joyce McGowan March and Mary Esther McGowan Milton. Defendants filed peremptory exceptions of prescription and of no right of action. The exceptions were tried on a stipulation of facts, and judgment was rendered sustaining the exceptions and dismissing plaintiffs’ suit. Plaintiffs have appealed.

Isaac Admiral Minton, the ancestor of all parties hereto, was married first to Brunette Ann McDonald Minton, and of this marriage, ten children were born. On February 1, 1901, during the existence of his first marriage, Mr. Minton purchased three tracts of land: a 51.2-acre tract in Section 6, Township 7 South, Range 4 East; 80 acres of land in Section 36, Township 6 South, Range 3 East; and a 34.36-acre tract which adjoined the 80-acre tract.

Brunette Minton died in 1904, her succession was opened and an inventory of its effects made. Mr. Minton petitioned to have the interest of his seven minor children in the 51.2-acre tract and a one-acre tract adjudicated to him, and to have the minors given a special mortgage on the 34.36-acre tract and the 80-acre tract as security. A family meeting approved the adjudication, but no further pleadings or judgments appear in the record.

Nevertheless, Mr. Minton, joined by his three major children, sold the one-acre tract in January, 1905, and in April, 1908, Mr. Minton alone sold the 51.2-acre tract.

After the death of Brunette Minton, Mr. Minton married Ethel Corinne Sibley Min-ton, and four children were born of the marriage, including plaintiffs and two other children who died without issue. Ethel Sib-ley Minton died in 1912.

On April 25, 1914, the children of the marriage of Isaac Admiral Minton and Brunette McDonald Minton executed an act of partition of the 80-acre tract, the 34.36-acre tract and the 51.20-acre tract. Three of the children, Mable C. Minton, Lucy V. Minton and Mattie P. Minton, were minors, and were represented by their father and tutor, Isaac Admiral Minton. The act of partition contains, inter alia, the following language, after naming the parties:

“... who Severally declared that they are owners in common, each for one undivided portion of the following described property inherited by them from their Mother’s Succession and now in their possession to-wit: ...”

There follows a description of the three tracts to be partitioned, and a list of the lots into which the tracts had been divided and the child to whom each lot was granted. There then follows this language:

“... now the parties being fully Satisfied with the division made by each of them and in order to carry out the said partition accordingly and to Confer upon each a full and Complete title in due form to the property herein alloted to them, severally declared and acknowledged that they do hereby make and effect Said partition in an authentic form in the manner above expressed and that from henceforth the Said property firstly described shall belong to Mary A. Peak wife of T. E. Peak being lot 2. Secondly Ella Peak wife of H. M. Peak being lot Eight (8) Thirdly Eva Peak wife of T. M. Peak being lot ten. Fourthly Amy LaLamun-dier wife of Henry LaLamundier being lot No. (6) Six Fifthly shall belong exclusively to Joseph D. Minton unmarried being lot No. Nine (9) Sixthly to John Min-ton being lot No. one, and in the consideration of the premises all in order to better carry out Said partition and to vest each of them with absolute to title the property herein received by them as their share the said parties hereto do hereby declare as follows that Each of them declares that in Consideration of the property recieved by each of them as their full share in this partition they do hereby Sell assign Convey transfer and deliver with all legal warranties and with subrogation to all their rights and actions in warranty against all preceeding owners and vendors unto each other accepting for themselves their heirs and assigns and ac-knowledgeing due delivery and possession thereof all and each of them their rights titles share portion interest and ownership and demands whatsoever in and to the property as described above, the parties declared that the property recieved by each as their Share being of equal value as the property recieved by the other no return of money is to be made to any of them and that by means of this partition is in possession and owner in full owner in full ownership to the property herein alloted to them as their Share and they discharge each other from all Claims demands matters and things whatsoever in the premises hereby ac-knowledgeing themselves respectively to be fully satisfied with this partition.”

The partition is executed by all of the major heirs and by I. A. Minton, who executed the partition without designating himself as tutor. On May 21, 1923, Lucy V. McGowan executed the instrument, and on September 27, 1924, Pearl Minton Oates executed it, accepting Lot 7 as her “full share in the within named succession and hereby grants a full and complete release of all demands on the part of her father ...”

On March 7, 1929, Isaac Admiral Minton died, and his succession was opened by creditors. The only property inventoried therein was one lot of ground in Doyle, Louisiana. The property which is the subject of this suit was not included therein.

This suit was filed on October 12, 1977. Plaintiffs allege that Isaac Admiral Minton was the owner of an undivided one-half community interest in the subject property, plus an undivided 3/so inherited from predeceased children, and that his interest therein was inherited by his children who survived him. They further allege that the named defendants are the present record owners of the three tracts sought to be partitioned herein. They ask for a determination of the interest of the parties herein in the subject properties, and for a partition thereof.

The peremptory exception of prescription which was maintained by the trial court is based on the proposition that defendants have been in actual, physical, corporeal and uninterrupted possession of the subject properties for more than 30 years.

Article 1305 of the Civil Code provides: “When one of the heirs has enjoyed the whole or part of the succession separately, or all the coheirs have possessed separately each a portion of the hereditary effects, he or they who have thus separately possessed, can successfully oppose the suit for a partition of the effects of the succession, if their possession has continued thirty years without interruption.”

Our jurisprudence has engrafted upon the clear provisions of the above article, and upon the provisions of the articles relating to the prescription of 30 years ae-quirendi causa, in cases in which co-owners are involved, the requirement that notice must be given to one’s co-owners that the possession enjoyed by the claimant is hostile and adverse to the interests of the co-owners. Articles 3499, 3500, 3548, Civil Code; Lee v. Jones, 224 La. 231, 69 So.2d 26 (1953); Delaune v. Williams, 308 So.2d 374 (La.App. 1st Cir. 1975).

Since it is stipulated that defendants have enjoyed “actual, open, peaceable, public, unequivocal, continuous and uninterrupted corporeal possession” of the properties for periods well in excess of 30 years prior to the filing of suit, the only question presented by this case is whether or not there was sufficient notice that the possession was adverse to the co-heirs so as to start the running of prescription.

We find that the language contained in the act of partition, quoted above, is a clear indication that the parties thereto considered themselves to be the owners of the full interest in the lots which they received in the partition. Since Isaac Admiral Min-ton was not only a signatory to the act, but accepted three parcels of the property on behalf of his minor children, we find that he had notice of their claim of full ownership. The act of partition further acknowledges the possession of the property partitioned by the parties thereto.

Although an act of partition may not be translative of property when the language of the act clearly imports that the parties have full ownership of the parcels received by them, the partition constitutes notice to any co-owners that subsequent possession of the property is adverse and hostile to their interests. Dupuis v. Broadhurst, 213 So.2d 528 (La.App.3rd Cir. 1968).

Since Isaac Admiral Minton was the only person who had an adverse claim, the prescription of 30 years began to run as to him immediately on the execution of the act of partition. It continued to run after his death against his heirs, including the plaintiffs herein, who can be in no better position than their ancestor.

The argument that the parties to the partition were dividing only their mother’s undivided one-half community interest therein, because the property divided is described as being inherited from their mother’s succession is without merit. All of the quoted language in the deed makes it unmistakably clear that all parties, including Isaac Admiral Minton, believe they were partitioning the full interest in the property.

The judgment appealed from is affirmed, at plaintiffs’ cost.

AFFIRMED.

WATKINS, Judge,

dissenting.

The holding of the majority sustaining the plea of prescription is based in part upon the finding that the execution by Isaac A. Minton of the act of partition constituted notice to him of an intention of the heirs of the first marriage to possess in a manner hostile to him. Ordinarily, possession of one co-owner is considered to be on behalf of all co-owners, and cannot furnish the basis for acquisitive prescription. However, one or more co-owners can possess adversely to other co-owners, and thereby obtain the advantage of acquisitive prescription, if the possession is clearly hostile and notice is given of an intention to possess adversely to the other co-owners. The filing of record of a deed translative of title or an act of partition can furnish the basis of such notice. See Succ. of Seals, 243 La. 1056, 150 So.2d 13 (1963); Continental Oil Co. v. Arceneaux, 138 So.2d 399 (La. App.3d Cir. 1966), writ refused 249 La. 66, 184 So.2d 736 (1966); Detraz v. Pere, 183 So.2d 401 (La.App.3d Cir. 1966), writ refused 249 La. 119, 185 So.2d 529 (1966); Dupuis v. Broadhurst, 213 So.2d 528 (La.App.3d Cir. 1968), writ refused 252 La. 966, 215 So.2d 131 (1968); Givens v. Givens, 273 So.2d 863 (La.App.2d Cir. 1973), writ refused 275 So.2d 868 (1973). We agree with the majority opinion that the execution of an instrument of partition by a co-owner in his individual capacity that clearly apportions full ownership by a division in kind and fails to apportion a tract to that co-owner constitutes notice to that co-owner that he has divested himself of all title. However, I think it is obvious that such a divestiture must be clear and free from ambiguity to constitute or take the place of the requisite notice.

The act of partition clearly recited that Isaac A. Minton appeared as tutor. Its recitation of parties never indicated that Isaac A. Minton also appeared in his individual capacity. Isaac signed as “I A Min-ton” without the word tutor appearing opposite his name, although one William C. McDonald signed with the notation apparently not in McDonald’s handwriting “Under Tutor”. Clearly, I cannot find from the face of that act of partition that Isaac A. Minton signed in his individual capacity as well as tutor of the minors, and there are no other stipulated facts that would tend to indicate that he also signed in his individual capacity. I do not find the fact that the word “tutor” was not mentioned opposite Isaac’s signature furnishes sufficient indication of an intention to partition his interest as well as that of his late first wife, Brunette.

Further, the act of partition purported only to divide “the following described property, inherited by them from their mothers (sic) succession . .. That language would indicate that only the mother’s interest was being partitioned, and not the whole. However, on the other hand, the act of partition recited “whereas they wish to no longer remain in indivisión of said property and desire to amicably to (sic) divide the Same (sic) between them-Selves (sic) ...” and further “. . . to confirm upon each a full and complete title in due form to the property herein alloted (sic) to them ...” and still further “to better carry out Said (sic) partition and to vest each of them with absolute to (sic) title the property herein received by them ...” and also “that by means of this partition is in possession and in full ownership to the property herein alloted (sic) to them . . . ”. That language indicates an intention to divide the full ownership. However, that language is clearly, in present-day legal slang, “boilerplate”, and was obviously copied by the notary from a formulary, as is evidenced by the many errors made in copying therefrom. (The act of partition was handwritten.) At most, if one considers the recitation that the property inherited from Brunette’s succession was being partitioned, the instrument can be taken either way, as indicating an intention to divide only the mother’s interest, or as indicating an intention to divide the whole.

This case breaks new ground in holding that the execution of an instrument by a co-owner which fails to indicate the existence of his interest furnishes notice to that co-owner of the intention of the remaining co-owners to possess the whole in a manner hostile to him. I have no quarrel with that expansion of the law, per se. However, the instrument which serves as notice should be free from ambiguity. In the present case the instrument in question could be accorded more than one reasonable interpretation, and was thus manifestly ambiguous.

I respectfully dissent.


text:
    Jimmy R. SLEDGE et al. v. TANGIPAHOA PARISH POLICE JURY et al. Damien KINCHEN v. TANGIPAHOA PARISH POLICE JURY et al.
    Nos. 13794, 13795.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Stephen C. Sledge and Curtis M. Baham, Jr., Hammond, for plaintiffs.
    Gail K. Sheffield, Amite, for Tangipahoa Parish Police Jury, et al.
    William J. Doran, Jr., Baton Rouge, for The Police Jury Association.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

These two consolidated suits seek to restrain the Tangipahoa Parish Police Jury from closing certain bridges, and to compel the Police Jury to repair the bridges. From a judgment enjoining the closure of the bridges and ordering their repair, the Police Jury and The Police Jury Association of Louisiana, Inc., which intervened, have appealed.

Under a federal program, funds were made available to the State of Louisiana for the inspection of bridges. Inspections of bridges in Tangipahoa Parish were made by Burke and Associates, an engineering firm, and recommendations based on these inspections were made to the Parish. Acting on those recommendations, the Police Jury ordered closed a number of bridges in Tan-gipahoa Parish.

These two suits were brought by certain citizens of Tangipahoa Parish whose access to their homes and businesses was affected by the closing of three of the bridges. They sought injunctive relief to prevent the closings and, by mandamus, to compel the Police Jury to repair the three bridges involved in the suits, which are situated on Wardline Road, South Coburn Road and Damiano Road.

At the hearing this court was advised by counsel that the Police Jury has acquiesced in the injunction granted, and that it has, in fact, repaired two of the three bridges involved. The only issue remaining is whether or not we have the authority to compel the Police Jury, by mandamus, to repair the third bridge.

Although the Police Jury has a ministerial duty to maintain the roads and bridges under its jurisdiction in good repair, the manner in which the work is done, and the priority given to the repair of individual roads and bridges are matters which rest within the legislative discretion of the Police Jury.

In State v. Louisiana State Board of Barber Examiners, 208 So.2d 369 (La.App. 1st Cir. 1968), writ refused 252 La. 169, 210 So.2d 53 (1968), we held that mandamus will not lie to compel the performance of a discretionary duty, even when there has been an abuse of that discretion. See also Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971); Karno v. Louisiana Tax Commission, 233 So.2d 592 (La.App. 4th Cir. 1970); Ware v. Cannon, 248 So.2d 19 (La.App. 1st Cir. 1971); Lyons v. Bossier Parish Police Jury, 262 So.2d 838 (La.App. 2nd Cir. 1972); but see Melancon v. Police Jury of Lafayette, 301 So.2d 715 (La.App. 3rd Cir. 1974).

Since we have found that the duty to repair any particular bridge is discretionary in nature, we are of the opinion that the trial judge was without authority to order the Police Jury to repair it.

The judgment appealed from is therefore reversed in that respect, and the writ of mandamus is recalled, at plaintiff’s cost.

REVERSED AND RENDERED.


text:
    Robert PETERS et al. v. LIVINGSTON WOOD PRODUCTS, INC. et al.
    No. 13865.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Frank Bruno, New Orleans, for plaintiffs.
    Henery Mentz, Jr., Hammond, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

ELLIS, Judge.

Judgment was rendered herein in favor of defendants on February 28,1980. Plaintiff filed a motion for a devolutive appeal with the Clerk of Court on April 3, 1980, well within the delay for obtaining an appeal. However, the order for appeal was not signed by the judge until May 12, 1980, after the delays had expired. Defendants have moved to dismiss the appeal on the ground that the order was not timely obtained. Decision on this motion was delayed, pending the decision of this court en banc in the case of Traigle v. Gulf Coast Aluminum Corporation, 391 So.2d 1290 (La. App. 1st Cir. 1980). That opinion has now been handed down, and held that it is the responsibility of the appellant to obtain the signature of the judge on an order of appeal, and that this responsibility is not discharged by filing the motion for appeal with the Clerk of the Court.

In this case the appellant did not timely obtain the signature of the judge on his order of appeal. The appeal is therefore dismissed, at appellant’s cost.

APPEAL DISMISSED.


author: COLE, Judge. WATKINS, Judge,

text:
    CITY OF PLAQUEMINE v. Honorable Richard MEDLEN.
    No. 13602.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Patrick W. Pendley, Freeman & Pendley, Plaquemine, for plaintiff-appellant City of Plaquemine.
    William C. Dupont, Dupont, Dupont & Dupont, Plaquemine, for defendant-appel-lee Hon. Joseph B. Dupont, Sr. and Richard Medien.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The city of Plaquemine appeals a judgment sustaining appellee’s peremptory exception raising the objection of no right of action and the objection of no cause of action. We affirm.

The facts of the case are somewhat complicated. Prior to 1972 the city of Plaque-mine had a mayor’s court. In 1972 special legislation was passed creating a city court. Act 456 of 1972 (La.R.S. 13:2488.61-63) abolished the mayor’s court, created the city court and provided that a city court judge and marshal be elected in the congressional election of 1972. The legislation stated, “The City Court of Plaquemine is created and shall have territorial jurisdiction throughout the city of Plaquemine.” Act 455 of 1972 reduced the terms of mayor and selectmen from four years to one year.

Shortly after the effective dates of these acts it was discovered that the terms of mayor and selectmen had been inadvertently reduced. Pursuant to La.R.S. 33:1181 the Plaquemine board of selectmen adopted ordinance No. 847 which reinstated the mayor’s court and restored the mayor’s and selectmen’s terms to four years. The ordinance was properly published and approved by the attorney general and by the governor. Because of this ordinance there was no election for city court judge or marshal in 1972.

In 1973 the attorney general issued an opinion stating that because Plaquemine’s population exceeded 5,000 people it was mandatory that a city court be established under La.R.S. 13:1872. In a separate opinion he stated that the people living in wards wholly or partially contained within the city limits of Plaquemine should be allowed to vote for city court judge and marshal. The city court was to have jurisdiction over the unincorporated areas of the wards as well as within the city limits, pursuant to La. R.S. 13:1872 and La.R.S. 13:1951. The city of Plaquemine contains parts of wards 2. 3, 6 and 8 of Iberville Parish, also known as election districts B, C, E and F. Richard Medien was elected marshal in an election held on December 18, 1975. At issue in this case is the right of Mr. Medien to hold his job as marshal.

Because of the apparent conflict between La.R.S. 13:2488.61 and La.R.S. 13:1872 and 13:1951, in 1979 the mayor and board of selectmen directed the city attorney to determine the boundaries and jurisdiction of the city court. The attorney filed suit, seeking a writ of mandamus to be issued, directing Richard Medien to show by what authority he holds office. Appellant contends the jurisdiction of the city court does not extend beyond the city limits of Plaque-mine. The record reflects both parties stipulated to the fact that Mr. Medien lives outside the city limits, in ward 6, election district E. Under La.R.S. 13:1880 marshals are required to be residents of the territorial jurisdiction of the court.

Because we find appellant has failed to state a cause of action we need not address the issue of no right of action.

The writ of quo warranto is defined by La.Code Civ.P. art. 3901 which reads as follows:

“Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.”

The record supports appellee’s contention that the petition does not state a cause of action because there is no allegation of usurpation. “Usurp” is defined by Webster’s Seventh New Collegiate Dictionary (1971) as to take possession by use, to seize and hold in possession by force or without right, to seize or exercise authority or possession wrongfully. In a legal sense, a usurper is defined by La.R.S. 42:71 (the Intrusion Into Office Act) as follows:

“Any person who assumes or pretends to be a public officer without the authority of an election, or without the authority of a commission from the governor when a commission is required; or who has been duly addressed out of an office that he held ... or who has been removed from such an office by impeachment or recall, is a usurper.”

Appellant’s petition does not contain any reference to usurpation but merely states that appellee is holding office in violation of La.R.S. 13:1880 which requires the marshal to be a resident elector of the territorial jurisdiction of the court. In fact, appellant’s petition simply states Mr. Medien took oath of Marshal of the city court on December 28, 1978. There is no allegation he had not been duly elected and commissioned before taking the oath.

For the foregoing reasons we find appellant’s petition has failed to state a cause of action. The record reflects the goal of this law suit is to determine the boundaries and jurisdiction of the city court of Plaquemine. The writ of quo warranto is narrow in scope and is to be given only a limited use. Foreman v. Hines, 314 So.2d 460 (La.App. 4th Cir. 1975). Its purpose is to prevent usurpation of office, not to determine the jurisdictional limits of a court.

We also find appellant has no right of action, or interest to institute this suit. The validity of this objection precludes us from remanding with an allowance of time to appellant for the purpose of amending its petition to state, if possible, a cause of action. La.Code Civ.P. art. 934.

It has been held a person, appearing alone and solely in the capacity of a citizen and not as a claimant to office, has no right to bring application for a writ of quo warranto to direct a public officer to show by what authority he holds office. Small v. Levy, 355 So.2d 643 (La.App. 4th Cir. 1978); writ refused, 361 So.2d 450. The City of Plaquemine as an entity cannot, in this regard, be distinguished from an individual. This is made clear by the interpretative reasoning found in Small as regards LSA-R.S. 42:76(1), 77 and La.Code Civ.P. art. 3901. The court, in Small, concludes:

“In its wisdom, the Legislature has granted the substantive right to test the right of a public officer to hold public office to the Attorney General, the District Attorney of the parish where the case arises, the Governor appearing in proper person or through the Attorney General or other counsel he may select or an individual who is claiming the office.” (at p. 647)

The judgment of the trial court is affirmed. Appellant is to pay all costs, subject to any statutory exemptions.

AFFIRMED.

WATKINS, J., concurs.

WATKINS, Judge,

concurring.

We concur in the majority opinion’s determination that the City of Plaquemine does not have a right of action. That being the case, we consider it unnecessary to pass upon the question of whether or not the exception of no cause of action should be sustained.

      . La.R.S. 13:1872 reads in part as follows:
      “A. (1) In all wards where city courts exist and in wards containing cities of more than five thousand inhabitants, except in the city of Don-aldsonville, the voters thereof shall elect a city judge, upon whose election the offices of justice of the peace and constable in the ward or wards in which the city is contained shall be abolished ipso facto, except that in the parish of Terrebonne such offices shall not be abolished in a ward by reason of the election of a city judge in the ward if fifty percent or less of the population of the ward resides within the city limits, and in such case the justice of the peace court and the city court shall each have territorial jurisdiction throughout such ward, and any justice of the peace court heretofore operating in such a ward and the office of constable thereof are retained.” (Emphasis added.)

      . La.R.S. 13:1951 reads as follows:
      “Municipal and city courts heretofore created and established pursuant to and under the authority of any constitutional or general statutory provision in effect prior to the effective date of this Section, are hereby recognized and continued in existence. Except as otherwise provided by law, their territorial jurisdiction shall extend through the city and ward or wards wherein the city of their domicile is located, as extended from time to time.” (Emphasis added.)

      . Medien was re-elected in 1978 and is currently serving his six year term.

      . Suit was also filed against Honorable Joseph Dupont, city court judge. The two cases were consolidated at the trial level. The appeal against Dupont was dismissed by this court because only the Louisiana Supreme Court has jurisdiction to remove a judge from office. City of Plaquemine v. Dupont, 388 So.2d 127 (La.App. 1st Cir. 1980).