author: COVINGTON, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Philip Foto SALLES.
    No. 13467.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Johnie E. Branch, Jr., Executive Asst. Gen. Counsel, and Bryan Miller, Asst. Gen. Counsel, La. Dept, of Transportation and Development, Baton Rouge, for plaintiff, appellant.
    William J. Jones, Jr., Covington, for defendant, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an expropriation proceeding by the State of Louisiana, through the Department of Highways, in connection with a modified cloverleaf interchange at the junction of U.S. Highway 190 and Interstate Highway 12 in St. Tammany Parish, Louisiana. On May 28, 1970, the Department of Highways obtained an order under the “quick-taking” statute, LSA-R.S. 48:441 et seq., for the expropriation of an irregularly-shaped tract of land consisting of 2.385 acres, from a 32.521 tract about four miles south of Covington, Louisiana, owned by Philip Foto Salles. The larger tract of land was rectangular in shape except for a slightly curved rear line opposite U.S. 190.

Prior to September 27, 1966, the Salles property fronted about 698 feet on the East line of U.S. 190, and fronted about 2352 feet on the South line of Helenbirg Road, in St. Tammany Parish. A drive-in theater was operated on that portion of the property adjacent to U.S. 190. A portion of the Salles property along U.S. 190 (including a portion of the drive-in theater) was taken on September 27, 1966, in an expropriation proceeding, for the proposed construction of a diamond-design interchange at the junction of U.S. 190 and 1-12. After this 1966 expropriation and at the time of the present expropriation, the defendant’s property was situated in the northeast quadrant of the proposed diamond-design interchange.

Control of access under the diamond design ended 10.44 feet South of the south line of Helenbirg Road (the north line of Salles), resulting in 10.44 feet of “first off” frontage for the Salles property. The Salles property also had about 957 feet of service road frontage adjacent to U.S. 190 and the interchange under the proposed design. Thus, under the proposed diamond-design interchange at the time of the present expropriation, the defendant’s property was easily accessible at the end of control of access in the northeast quadrant.

For reasons more fully explained in State, Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765 (La.App. 1 Cir. 1974), writ refused, 307 So.2d 373 (La.1975), the diamond-design interchange was changed to a modified cloverleaf (a more intricate design) which necessitated a second expropriation (occurring on May 28, 1970) from Salles of additional land along U.S. 190, including an additional portion of the drive-in theater. The Department deposited $107,345 in the registry of the court as the estimated just compensation due the defendant for the property taken.

The parties stipulated that in the instant expropriation, the Salles property was to be appraised as if the diamond-design interchange had actually been constructed, and that Salles was entitled to the enhancement in value resulting from the proposed diamond-design interchange. This stipulation was in accord with State, Department of Highways v. Beatty, which first decided this issue at this interchange. The Beatty decision in the trial court was affirmed by the First Circuit Court of Appeal, at 288 So.2d 900 (1973), writ denied, 293 So.2d 169 (La.1974).

The instant expropriation resulted in the Salles property losing its position at the end of control of access, and resulted in the Salles remainder (land remaining after the expropriation) being located on a dead-end service or frontage road 1800 feet south of the end of control of access. All matters involving the prior expropriation were resolved in the prior proceeding, and the only questions before the trial court were those of just compensation for the part taken, severance damages arising out of the expropriation, and the fees of the expert witnesses. The trial court found the area of property taken from the defendant to consist of 2.385 acres which were carved out of the front land area of about six acres in size. The trial court accepted 96<t per square foot as the value of the front six acres prior to the taking, and 20<p per square foot as the value of the front 3.615 acres (remaining after the expropriation) after the expropriation. The trier accepted the sum of $3,000 per acre as the value of the rear land, with it having the same value before and after the taking. The trial court also found that the improvements had an “interim use” value of $35,913. Severance damages of $137,-633 and the expert witness fees were also fixed. In summation, the trial court made its computation as follows:

BEFORE VALUE
Front 6 acres, or 261,360 square feet at 96c $250,905
Rear 26.521 acres at $3,000 per acre 79,563
32.521 acres (total land before taking)
Total Land Value Before Taking $330,468
Improvements (interim use value) 35,913
Total Value Before Taking $336,381
PART TAKEN
2.385 ac., or 103,890.60 square feet at 96<f $ 99,735
Improvements taken 14,365
Total Value Part Taken (114,100)
BEFORE VALUE OF REMAINDER $252,281
AFTER VALUE OF REMAINDER
Front 3.615 acres, or 157,469 square feet at 20$ $ 31,494
Rear 26.521 acres at $3,000 per acre 79,563
30.136 acres (total land after taking) $111,057
After value of improvements (salvage) 3,591
Total After Value (114,648)
SEVERANCE DAMAOE $137,633
SUMMARY
Total Value of Part Taken $114,100
Severance Damage 137,633
Total Just Compensation $251,733
LESS Deposit (107,345)
Increased Award $144,388

Pursuant to the computation, the trial judge rendered judgment as follows:

“IT IS ORDERED, ADJUDGED AND DECREED, that the State of Louisiana, Through the Department of Highways, be and it is hereby condemned to pay to Philip Foto Salles, the sum of $114,100 for the part taken and $137,633 for severance damages, for a total award of $251,733, subject to a credit of $107,345 being the deposit by the Highway Department in these proceedings, together with legal interest on $144,-388 (the amount the total award exceeds the depossit), from May 28, 1970 (date of expropriation) until paid, together with all costs of this proceeding.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the fees of Frank J. Patecek are hereby fixed at $7,150.00 and the fees of James A. Stevenson are hereby fixed at $4,975.00, which experts’ fees are hereby taxed as costs to be paid by the Highway Department.”

In appealing from the judgment rendered in accord with the trial judge’s findings, the Department complains of the trial court’s interpretation of the stipulation at the opening of trial, the award of more than salvage value for the improvement taken, the award of any amount as severance damages to the improvements on the remainder, the award of an excessive amount of severance damages to the front land, and the award of excessively high expert witness fees. We affirm.

Deano and Dowell (State’s appraisers) and Patecek and Stevenson (owner’s appraisers) all divided the Salles property into various classes of land, according to highest and best use in order to determine the value of the Salles property before the taking. Patecek considered two approaches. Under his first approach, he considered a front land tract of 6 acres, while under his second approach he considered three separate smaller front land tracts that encompassed about the same 6 acres of front land used under his first approach. Because Patecek concluded that his first approach was the proper one, and because the 6 acre front land tract in Patecek’s first approach is identical to Stevenson’s and similar to Deano’s, Patecek’s second approach for the front land before the taking is excluded from the following data:

FRONT AND REAR LANDS BEFORE TAKING
FRONT LAND
Area Helenbirg Rd. Depth Effective Depth Rear Land Area
Deano 5 acres 500' 325' 27.420 acres
Dowell 8.943 acres 680' 558' 23.578 acres
Stevenson 6 acres 464' 374' 26.521 acres
Patecek
1st App. 6 acres 464' 374' 26.521 acres

All of the appraisers concluded that the front land tract was deeper on Helenbirg Road (north line of Salles) than on south line. Accordingly, the effective depth of the front land was determined by dividing the total area of the front land in square feet by the length of the rear line of the front tract. There was no testimony as to the specific effective depth of the front land of 8.943 acres as used by Dowell, but assuming a rear line of 698.42 feet (the width of the Salles property), the effective depth of the Dowell front land tract was about 558 feet.

Dowell’s front land tract was 80% larger than Deano’s and 50% larger than Patecek’s and Stevenson’s, and although Dowell believed that the front Salles land before the taking was an excellent motel site, Dowell admitted that all St. Tammany Parish motel sites were utilizing much less than 8.943 acres. The trial court concluded that the 6 acre front land tract as used by Patecek and Stevenson was correct, and that the rear land tract as used by Patecek and Stevenson was also correct.

The appraisers found the following unit values:

UNIT VALUES BEFORE TAKING
Front Land Rear Land
Deano $ .30 s.f. $2,500 ac.
Dowell- $ .46 s.f. $3,500 ac.
Patecek, 1st Approach $ .96 s.f. $3,000 ac.
Stevenson $1.05 s.f. $3,049 ac.

The trial court placed more reliance on the appraisals of Patecek and Stevenson than on those of Deano and Dowell. Unlike the other three appraisers, Deano failed to use the sales from Zaeringer to Gulf, and Burns to Shell, as comparables in spite of the fact that the Gulf sale was just across Helenbirg Road from Salles, and the Shell sale was immediately adjacent to the Gulf sale. These two comparables both received diamond-design enhancement in value as did Salles.

In making adjustments to his comparable sales, Deano only used a 3% or 4% annual price increase whereas Dowell used 10% annually up until May 28,1970, and 18% annually thereafter, while Patecek used a constant 18% annually and Stevenson used a constant 12% annually. Patecek and Stevenson both made Price Increase Studies to substantiate their price increases, and the trial court concluded that the 18% constant annual price increase used by Patecek was correct.

All appraisers testified that the highest and best use of the front land before the taking was commercial, and Dowell, Pate-cek and Stevenson believed that the front land would have been a good location for a major motel or truck stop. Patecek testified that the Salles front land before the taking was the best motel site at the interchange because of its excellent location at the end of control of access in the northeast quadrant, and because the sites in the two west quadrants were not available without purchasing about 1,000 acres of land, and because the sites in the southeast quadrant were too small or ill-shaped, or had adverse restrictive covenants.

The Slidell R & I sale at the Gause Road, I — 10 Interchange at Slidell was used by Patecek and Stevenson as a comparable for the Salles front land because it was remarkably similar in size and shape and had nearly the identical position at the Slidell-Gause Road interchange as did Salles at the U.S. 190, 1-12 interchange. Patecek and Stevenson noted that U.S. 190 had a substantial traffic count; and, according to Stevenson’s testimony, the traffic count on U.S. 190 was much greater than that on Gause Road at the time of the taking.

Patecek’s and Stevenson’s final value conclusions of $.96 per square foot and $1.05 per square foot were lower than the value the Slidell R & I sale indicated to them as the value of the Salles front land before the taking.

In using certain U.S. 190 sales as compa-rables for the front land that was too far away from the interchange to receive enhancement from it, Patecek and Stevenson made large location adjustments to account for Salles’ enhanced and more valuable location at the interchange, but these large location adjustments were substantiated by a comparison of the high price ($1.49 square foot) that Shell paid in 1967 for its front tract of 190 feet by 200 feet deep at the interchange close to Salles as compared to the price paid ($.28 square foot to $.55 square foot) at about the same time for similar size tracts on U.S. 190 away from and without interchange enhancement in value.

The appraisals of both Patecek and Stevenson reviewed the comparable sales, and each made proper adjustment to the comparable sales which they used. The trial court, therefore, concluded that the land value of the front 6 acre tract before the taking was $.96 per square foot, hence the value of all the land taken was $.96 per square foot because the entire taking came from the front 6 acres.

There was no serious dispute about the value of the rear land before the taking, since Deano valued it at $2,500 per acre, Dowell at $3,500 per acre, Patecek at $3,000 per acre, and Stevenson at $3,049 per acre. The trial court fixed the value of $3,000 per acre for the land prior to the taking.

LAND VALUES AFTER THE TAKING
The trial court, in its reasons, stated: “The design of the modified cloverleaf interchange and the taking therefor in this case resulted in control of access being extended to a point about 800 [1800] feet north of the Salles property, causing Salles to lose his ‘first off’ position and to be relegated to service road frontage on a dead end service road, and which necessitated a vehicle driving northward from the Salles property a distance of 1800 feet on the service road in order to reach U.S. 190.
“Before the taking a vehicle driving south on U.S. 190 and reaching a point opposite the Salles property could turn left and go about 200 feet directly to the Salles property. After the taking the same vehicle driving south on U.S. 190 [and] reaching a point opposite the Salles property would have to travel about three miles to reach the Salles property by continuing to travel south about IV* miles to the Fairway Drive intersection and then making a U-Turn and traveling north on U.S. 190 to the point opposite the Salles property, and then continuing north an additional 1800 feet to the.end of Control of Access, then entering on the service road and traveling south 1800 feet to the Salles property.
“Access to the Salles property after the taking became more difficult for 1-12 motorists and for motorists traveling North on U.S. 190 and visibility of the property was impaired in certain respects because of the modified cloverleaf design.”

The appraisals of Dowell, Stevenson and Patecek show that after the taking, the Salles property still consisted of two classes of land with different highest and best uses. The Deano appraisal showed only one class of land after the taking, but Deano admitted that his appraisal was incorrect in this respect. However, Deano never indicated what comparable sales he used to determine the value of the front land after the taking nor the adjustments he made thereto; and, thus, the trial court did not evaluate Deano’s conclusions as to the front land after the taking.

FRONT AND REAR LANDS AFTER TAKING
FRONT LAND
Area Helenbirg Rd. Depth Effective Depth REAR LAND Area
Dowell 6.558 acres 595' 409' 23.578 ac.
Patecek 1st App. 12.000 acres 747' 747' 18.136 ac.
Patecek 2nd App. 3,387 acres 200' 200' 26.750 ac.
Stevenson 3.615 acres 200' 200' 26.521 ac.

The unit values of the front land are set forth below:

Per Acre Per Sq. Ft.
Dowell $12,000 acre 27.5<t
Patecek 1st App. $ 5,000 acre 11.5<t
Patecek 2nd App. $ 8,712 acre 20$
Stevenson $ 8,712 acre 20c

Dowell did not use as an after value comparable the sale from Apkin to North-lake which was closest in proximity (immediately adjacent to Salles on the south) and closer in time to the taking than most of the comparable sales that he used to show after value.

Both Patecek and Stevenson testified that the highest and best use of the front land after the taking would be diminished to secondary commercial, and Dowell’s appraisal acknowledges that a “reduction in demand” occurred.

The trial judge noted with approval that Dowell and Patecek used the same method and percentage (18%) to adjust comparable sales prices after the taking back, or down to the date of the taking, to eliminate general price increases between the date of the taking and the date of the comparable.

The trial court concluded that the proper front land tract after the taking was that used by Stevenson, which was nearly identical to Patecek’s front land tract after the taking under his second approach. The court further concluded that the value of this front land tract immediately after the taking was $.20 per square foot, as found by Patecek and Stevenson.

As to the rear land after the taking, three appraisers, namely, Dowell, Patecek and Stevenson, concluded that the rear land after the taking had the same value as the rear land before the taking, and the trial court concluded that the rear land value both before and after the taking was $3,000 per acre.

The court also concluded that the 2.385 acres taken by the Department had a value of $99,735, based on 96<t per square foot, as of the date of taking, May 28, 1970. The trial judge may give whatever weight he deems appropriate to the testimony of any and all witnesses in making his factual determination of the value of the property taken, and his fixing of the value of the property taken will not be disturbed in the absence of manifest error. State, Department of Highways v. Romano, 343 So.2d 222 (La.App. 1 Cir. 1977). We find no manifest error in the determination by the trial court of the value of the property taken in the instant case.

The Department complains of the trial court’s interpretation of the stipulation between the parties at the opening of trial as to the defendant’s right to diamond-design enhancement.

The parties stipulated that, for the purposes of the trial, the Salles property should be appraised as though the diamond-design interchange, as originally planned, had been constructed (even though it was not), with the defendant entitled to any enhancement in value that would have resulted from such a diamond-design interchange if the present expropriation had not occurred.

It is the Department’s position that the stipulation means that the interchange is to be considered as in full use on an operating interstate system, giving the property the full impact of such enhancement immediately before the taking.

In State, Department of Highways v. Beatty, supra; State, Department of Highways v. Covington Interstate, Inc., 295 So.2d 828 (La.App. 1 Cir. 1974), writ denied, 299 So.2d 801 (La.1974); State, Department of Highways v. Wax, 295 So.2d 833 (La.App. 1 Cir. 1974), writ denied, 299 So.2d 800 (La.1974); State, Department of Highways v. St. Tammany Homestead Association, supra; State, Department of Highways v. Shell Oil Company, 304 So.2d 777 (La.App. 1 Cir. 1974), writ denied, 307 So.2d 374 (La.1975), this Court held that the landowners whose property was expropriated were entitled to the benefit of enhancement in value of their properties resulting from the proposed diamond-design interchange. We believe the parties in the instant case entered into the stipulation in order to achieve the same treatment as was accorded in the above cited cases without having to introduce extensive evidence to prove the landowner’s right to “diamond-design enhancement.”

We do not believe the parties intended the stipulation to have the meaning now attributed to it by the Department, that the parties for purposes of trial would “assume” that the diamond-design interchange was actually constructed and in use as of the date of the taking in 1970. In any event, the parties did not intend to stipulate that the landowners would make no claim for “interim improvements,” which seems to be the primary basis for the present disagreement over the interpretation of the stipulation in open court. At the trial, all witnesses, trial attorneys, and the court understood that the stipulation did not preclude the landowner from showing interim use value of improvements. For instance, Patecek testified, without objection, that the interchange (cloverleaf) was completed about July 4, 1976. Without objection, Patecek and Stevenson testified that the drive-in theater improvements had an interim use value during this six-year period of time.

The Department next contends that the District Court erred in awarding more than “salvage value” for the improvements taken and in awarding any amount as severance damages to the improvements on the remainder. There is no merit in this contention.

The trial court concluded that the improvements had an interim use value, that the award to be made for improvements on the part taken was $14,365, and that the award to be made for severance damages to improvements on the remainder was $17,-957. The trial court weighed the testimony of the several experts concerning this issue and arrived at figures consistent with the testimony of Patecek. The record reflects that after the first taking, Salles renovated the drive-in theater and made certain changes necessitated by the first taking. The drive-in theater was being operated as a going business at the time of the second taking. None of the experts limited the improvements award to “salvage value”, as the Department suggests. Although Do-well did not express an opinion as to the improvements award as the Department hired him only to appraise the land, he did testify that the drive-in theater improvements had an “interim-use value” from the date of the taking in 1970 until the opening of 1-12 in June of 1976, at which time Dowell believed that the drive-in theater improvements would be demolished for the construction of a motel or truck stop of similar interstate related use. Patecek and Stevenson actually placed an “interim-use value” on the improvements in their appraisals. Deano did not use an interim-use value; however, he did assign a large contributory value to the drive-in improvements on the remainder after the taking so that his total just compensation for improvements was only about $11,000 higher than Stevenson’s value, and about $14,000 higher than Patecek’s value as set forth below:

IMPROVEMENTS
(rounded to nearest dollar)
Deano Patecek Stevenson
Replacement Cost $102,608 $107,738 $102,608
Less Physical Depreciation (10,331) (14,365) (13,339)
Value After Physical Depreciation $ 92,277 $ 93,373 $ 89,269
Economic Depreciation (57,460) (51,304)
Interim Use Valúe $ 35,913 $ 37,965
Improvements Taken (34,611) (14,365) (13,288)
Before Value of Improvements on Remainder $ 57,666 $ 21,548 $ 24,677
Less Contributory Value (45,335)
Less Salvage Value (3,591) (2,468)
Severance to Improvements $ 12,331 $ 17,957 $ 22,209
SUMMARY
Improvements Taken $ 34,611 $ 14,365 $ 13,288
Severance to Improvements 12,331 17,957 22,209
Just Compensation for Improvements $ 46,942 $ 32,322 $ 35,497

The trial judge found that for economic reasons the drive-in theater improvements would only have an interim-use value up to the time of the opening of the interchange. We agree.

SEVERANCE DAMAGES

The Department next contends that the trial court’s award of severance damages was excessive. The trial court concluded that severance damages were suffered by the Salles remainder land, because of circuity of access after the taking, and to a lesser degree, because of impairment of visibility after the taking, which together resulted in a diminution of the highest and best use of the front land after the taking, and a reduction in size and unit value of the front land after the taking. He based this conclusion on the facts found in his written reasons, quoted above.

For the same reasons that the trial court found in the instant case, this Court said in the Beatty case, supra (288 So.2d at 901):

“Before the taking the parent tract fronted directly on Highway 190 and had free unrestricted access to the highway. The taking will result in the construction of a controlled access highway along Highway 190 in front of the Beatty remainder. The remainder will front on a service or frontage road which will be fenced off from the four-laned Highway 190. This service road will dead end at the Ponchi-tolawa Subdivision just north of the Beatty remainder and in order to reach Highway 190 from the Beatty remainder it will be necessary to drive south on the service road a distance of three-quarters of a mile to the interchange to be constructed at the junction of Highway 190 and Fairway Drive.
“After the construction of the controlled access highway, the driver of a vehicle proceeding south on Highway 190 and desiring to reach the Beatty remainder must drive three-quarters of a mile further south after passing the property to the Fairway Drive interchange and then enter the service road and proceed north for three-quarters of a mile to the Beatty •remainder. The driver of a vehicle going north on Highway 190 who sees the Beatty property and desires to drive to it must proceed north to the interchange at 1-12 and Highway 190, turn around, proceed south to the Fairway Drive interchange and then enter the service road and drive north another three-quarters of a mile to the Beatty remainder. A driver proceeding north on Highway 190 knowing where the Beatty property is located and desiring to drive to it would enter the service road at the Fairway Drive interchange and proceed north three-quarters of a mile to the property without any substantial loss of time or distance.”

In addition, severance damages were awarded at this interchange for similar reasons in Gulf, Shell, St. Tammany Homestead and Covington Interstate, supra.

The record reflects that under the circumstances the trial court’s award of severance damages was appropriate.

EXPERT WITNESS FEES

Finally, the Department challenges the award of expert witness fees as excessive. It contends that the fees awarded to Patecek and Stevenson were improper, since they merely conform to the amounts agreed to between the landowner and the appraisers. See State, Department of Highways v. Whitman, 313 So.2d 918 (La. App. 2 Cir. 1975), writ denied, 319 So.2d 443 (La.1975). However, the fixing of expert witness fees is largely within the sound discretion of the trial court, and the trial court’s fixing thereof will not be disturbed on appeal in the absence of abuse of discretion. State, Department of Highways v. Spillman, 276 So.2d 905 (La.App. 1 Cir. 1973).

In fixing such fees, each case must turn on its own peculiar facts. There are, however, certain factors that can be used in fixing such fees, such as the expertise of the expert, the helpfulness of the expert’s report and testimony to the trial court, the time spent in the preparation of the report, the time spent in testifying as an expert witness, and awards to experts in similar cases. The agreement between the landowner and the appraiser may be used as a factor in fixing the fee, but such an agreement can not be the sole criterion used by the trial court in fixing the expert’s fee. State, Department of Highways v. Miltenberger, 344 So.2d 705 (La.App. 1 Cir. 1977).

The trial court awarded expert witness fees of $7,150 to Patecek and $4,975 to Stevenson. The Department’s principal attack is on Patecek. Patecek’s fee is justified under the criteria cited by the Department in State, Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3 Cir. 1975), writ refused, 326 So.2d 370 (La.1976), for determining reasonableness of appraisal fees, namely, that (1) preparatory work must be reasonably necessary, (2) preparatory work must tend to show value of property taken or severance damages, (3) conclusions reached must be useful in determining the award, and (4) the amount of the fees must be reasonably related to the amount awarded for the part taken and severance damages.

Patecek’s appraisal was thorough, tabbed and well organized, and comprised over 140 pages, including a 20 page time-study and 10 separate sets of comparables for the tracts of land which he considered and appraised. Patecek analyzed about 50 sales in his time-study. After analyzing numerous sales, he used 23 sales as comparables, making specific adjustments to each sale, which involved many mathematical computations.

Patecek’s appraisal contained 21 maps or diagrams drawn by him to explain or support his data and conclusions. His appraisal contained several summaries to show a consistency in his adjustments and conclusions. He had an engineer (Sanders) make his square footage computations because of the complex shape of the property and the difficulty in determining areas.

Salles was a very difficult appraisal assignment, as attested to by the appraisers and shown by the record. The Department’s argument that Patecek’s appraisal of other properties at this interchange should have made Salles an easy appraisal assignment is not supported by the record.

First, Patecek was not an appraiser in the Gulf and Shell cases, which were closest in proximity to Salles in the same quadrant of the interchange. Second, the Salles property appears to be substantially different from that in the other interchange cases in which Patecek testified, north of 1-12 and elsewhere. For example, Salles was the only property involving improvements that contributed to the value of the land, and was the only case involving interim use value and considerable diamond-design enhancement in which Patecek testified.

Severance damages in Wax, supra, was based on “cost to cure” which is different from the basis for severance damages in Salles. The defendant had service road frontage in the diamond configuration, while the other eases in which Patecek testified did not. After the taking, the other properties had direct access to U.S. 190, whereas after the taking Salles was behind a control of access barrier 1800 feet from U.S. 190. In the cloverleaf configuration there was no service road in the northwest quadrant where the other properties were situated, but there was a service road in the Salles quadrant.

The above examples of some of the differences between the Salles property and other properties, and the complexities of this appraisal, confirm the trial court’s view that this was a difficult appraisal assignment.

We therefore, find no abuse of the trial court’s discretion in fixing the expert witness fees.

DECREE

For the foregoing reasons, the judgment of the District Court is affirmed; the Department is cast for costs in the amount of $12.440.87.

AFFIRMED.

      . The appraisers testifying for the Highway Department were Edward J. Deano and Carr T. Dowell. The appraisers for the landowner were Frank J. Patecek and James A. Stevenson.


source: Caselaw Access Project

author: COVINGTON, Judge. LOTTINGER, Judge,

license: Public Domain

text:
    John Wayne ERWIN v. EXCELLO CORPORATION et al.
    No. 13478.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Robert W. Tillery, Ponchatoula, for plaintiff.
    Eugene R. Groves, Baton Rouge, for defendants, Great Atlantic & Pacific Tea Co., Inc., Donald A. Novak, Dennis DesRoaches, James Broadway and Ideal Mut. Ins. Co.
    Boris F. Navratil, Baton Rouge, for defendant Excello Corp.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by plaintiff-appellant, John Wayne Erwin, from a judgment in favor of defendants-appellees, The Great Atlantic and Pacific Tea Company, Donald A. Novak, Dennis DesRoaches [Des-Roehes], James Broadway, and Ideal Mutual Insurance Company, dismissing the plaintiff’s suit at his costs, as to the named defendants. We affirm.

The incident giving rise to the present litigation occurred on April 7, 1978, when the employee, in the course and scope of his ■employment with the Great Atlantic and Pacific Tea Company at its milk plant located in Kentwood, Louisiana, was severely injured when he was operating a machine known as a “Pure Pak” milk bottling machine, which was manufactured by Excello Corporation. The plaintiff injured his left hand when it became caught in the machine while he was trying to remove a milk carton which had lodged in the machine. The plaintiff sued Excello Corporation, the Great Atlantic and Pacific Tea Company and the three named individual defendants as executive officers of A & P. By amended petition, the plaintiff named Ideal Mutual Insurance Company, the insurer of A & P and the executive officers, as a party defendant. He also amended the petition so as to purportedly consider the previously alleged acts of the defendants as “intentional” acts as well as “negligent” acts. These defendants filed peremptory exceptions and a motion for summary judgment. Then, the plaintiff filed a second amended petition in an effort to allege “intentional acts,” reading as follows:

“Defendant, The Great Atlantic and Pacific Tea Company has committed the following acts which are a proximate cause of Petitioner’s accident. Said acts, when considered singularly or jointly, are to be considered as intentional acts.
“1. Defendant, The Great Atlantic and Pacific Tea Company, intentionally required Plaintiff to operate a dangerous machine in improper working order due to an intentional failure to repair and make operative a known defective safety cut-off switch on the doors opened by Petitioner, as he was trained, to remove improperly stacked cartons on the mandrils.
“2. Defendant, The Great Atlantic and Pacific Tea Company, intentionally required the Plaintiff to continue to operate the said machine after notice had been given by Petitioner to Defendant, The Great Atlantic and Pacific Tea Company, that the said machine would suddenly begin operating without being activated on the control panel, and the said Defendant made no effort to repair the machine after said notice also.
“3. The Defendant, The Great Atlantic and Pacific Tea Company, failed to properly train Plaintiff to remove milk cartons which had become jammed on the mandrils by use of a method provided by the manufacturer of the machine which instructed the operator to stop the machine and place the ‘Key Switch’ on the console into ‘safe’ position prior to opening the two grated doors on the face of the machine where the mandrils and heaters are located to remove jammed cartons.
“The ‘Pure Pak’ machine has high-temperature heaters and large moving parts, and is extremely dangerous to an operator. Said above acts, in the context of their occurrence and in consideration of the dangerous characteristics of the machine, indicate and affirmatively show the Defendant, The Great Atlantic and Pacific Tea Company, entertained a desire to bring about the accident which occurred, and that such an accident was substantially certain to happen.”

The plaintiff also amended his allegations concerning the executive officers, to read as follows:

“Defendants, Donald A. Novak, Dennis DesRoaches and James Broadway are strictly liable to Petitioner by reason of having committed the following acts which are a proximate cause of Petitioner’s accident. Said acts, when considered singularly or jointly, are to be considered as intentional acts.
“a. Intentionally providing Petitioner with an unsafe place for employment in the following particulars:
“1. By intentionally allowing the said machine to be run with full knowledge the automatic cut-off switch located on the two grated doors was not in operating condition as a safety device, though installed.
“2. Intentionally refusing to attempt repair and correction of the defect in the machine which allowed the machine to suddenly begin operating without the re-set and start buttons being pushed by the operator, all after having been given the knowledge of the problems by Petitioner.
“b. Intentionally training Petitioner incorrectly to remove jammed cartons without placing the ‘Key Switch’ on the console into the ‘safe’ position,
“c. Intentionally relying for a method of training new operators by word-of-mouth, as opposed to use of the prescribed Operator’s Manual.
“d. Any and all other acts of omission or commission, the nature of which will be shown at the trial of this matter.”

Mr. Erwin then added a paragraph averring that the acts of the defendants were of such a reckless and wanton nature as to constitute “intentional acts” under LSA-R.S. 23:1032.

The matter came on to be heard on the motion for summary judgment, and, after considering the pleadings, depositions, interrogatories, answers to interrogatories, affidavits, memoranda and arguments of counsel, the trial judge rendered judgment in favor of the named defendants, maintaining the motion for summary judgment on the ground that there was no genuine issue of material fact and the law was in favor of the defendants, and dismissing the plaintiff’s demand against these defendants at his costs. The plaintiff has devolutively appealed.

We find no merit in the appellant’s contention that by merely alleging “intentional injury” as we have set out above, he has avoided the mandatory effect of LSA-R.S. 23:1032. There is also no merit in appellant’s contention that certain conduct of the A & P employees must be construed as satisfying the “intentional act” requirement of the statute. The record reflects that this was not an “intentional act” that caused the accident and resulting injury to the plaintiff. There is nothing to indicate that any of these defendants entertained a desire to bring about the result obtained, or could possibly have believed that the result was substantially certain to follow anything they did or did not do. No serious argument can be made that anyone employed by the A & P connected with this work or accident had any active desire that the accident with resulting injuries should happen. On the contrary, the affidavits of the plaintiff and his co-employee, John Jackson, and the depositions of the three executive officers positively show that none of these defendants entertained a desire to bring about the result here or that they believed the result was substantially certain to follow. See Nettles v. Bowlin, No. 13,122 on our docket; Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979); Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1 Cir. 1978).

In our opinion, Nettles v. Bowlin, supra, is dispositive of the instant case.

Appellees filed the exception of no cause of action and no right of action in this court. In view of our disposition of the case, it is not necessary that we consider those pleadings.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

The determination of whether defendants entertained a desire to bring about the result which followed or should have believed that the result was substantially certain to follow, Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978) and Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975), presents an issue inappropriate for summary judgment. La.C.C.P. art. 966; Berger v. Fireman’s Fund Insurance Company, 305 So.2d 724 (La.App. 4th Cir. 1974); Mecom v. Mobile Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir. 1974).

Therefore, I respectfully dissent.

      . § 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.
      Amended by Acts 1976, No. 147, § 1.


text:
    Dewey SMITH v. BOARD OF TRUSTEES OF LOUISIANA SCHOOL EMPLOYEES RETIREMENT SYSTEM.
    No. 13496.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant Dewey Smith.
    William J. Guste, Jr., Atty. Gen., William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, for defendant-appellee Board of Trustees of Louisiana School Employees Retirement System.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment of the District Court in favor of the defendant, Board of Trustees of Louisiana School Employees Retirement System, dismissing the claim of plaintiff, Dewey Smith, for retirement benefits from the Louisiana School Employees Retirement System. We affirm.

The record shows that on May 5, 1955, the plaintiff commenced employment with the Washington Parish School Board as a school bus driver. He applied for membership in the retirement system and his creditable service began on July 2, 1956. He sustained a disqualifying injury in July of 1964. During the 1964-1965 school year, the plaintiff personally drove his school bus 30% of the 180 day school year. For the balance of that year, the plaintiff hired a substitute driver. In addition, the plaintiff employed a substitute driver during the 1965-1966 school year, although Mr. Smith remained in the employ of the School Board. In his final year of employment, the 1966-1967 school year, he remained as an employee of the School Board, but his paychecks were paid directly to the substitute driver who actually did the bus driving. On March 20, 1967, the substitute driver was hired by the School Board as the regular school bus driver in place of Mr. Smith.

The plaintiff applied for retirement benefits on April 20,1966, which application was approved, effective as of June 1,1966. The retirement system paid Mr. Smith a total amount of $838.20 through April 19, 1967, when the benefits were terminated upon the retirement system’s learning that the plaintiff was still being paid by the School Board and that he was not actually the driver of his school bus. Thereafter, the plaintiff sued for restoration of payments under the Bus Drivers Retirement Plan. After trial, the District Court denied the demands of Mr. Smith.

The trial court concluded that at the time the plaintiff applied for benefits on April 20, 1966, he was not actually driving his school bus. Since he was not actually driving it, the court found that he was not a “school bus driver”; hence, the plaintiff could not be considered as a “member” within the meaning of LSA-R.S. 17:882(14). The trial court then held that Mr. Smith was not eligible for benefits under LSA-R.S. 17:914, because he was not a “member” of the retirement system at the time of his application for benefits. On appeal, appellant contends that the stipulation in the pretrial order, Item IV 6, that Dewey Smith was a “member in service” with in excess of five (5) years creditable service is a judicial confession which is controlling in the court. It is a conclusion of law; matters of law are determined by the court and not by the parties.

There is no merit in the plaintiff-appellant’s contention on appeal that Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979), is dispositive of the instant case in that the retirement system stipulated that Mr. Smith was a “member in service” and can not now be heard to deny his entitlement to retirement benefits. In Cheatham the situation was that the defendants had not questioned the issue of “course and scope of employment” of the police officers involved during the trial, on application for new trial, or in the court of appeal in their original brief. It was not until the Court of Appeal requested supplemental briefs that any of the defendants raised the question of course and scope of the officer’s employment during the incident giving rise to the action. The Court of Appeal found that it was too late to raise that question under the circumstances of that particular case. The circumstances of the instant case differ from the Cheatham case. The issue in the instant case as to whether or not Mr. Smith was a “member” of the retirement system was raised in defendant’s answer in the trial court, particularly in paragraph 12 thereof, which avers that Mr. Smith was not “entitled to be a member of the system” for specific reasons that were stated in the answer.

The averment of non-eligibility as a member was reiterated in the pre-trial order when the defendant claimed that Mr. Smith was not entitled to benefits due to his not having actually been the bus driver for some time previous to his application for benefits. The parties offered evidence on the issue and the trial court ruled specifically on the issue. We find the Cheatham case inapplicable to the instant case.

We agree with the well-reasoned opinion of the trial judge and adopt his written reasons for judgment as our own, and attach them as Appendix A.

For the foregoing reasons, the judgment is affirmed at the appellant’s costs.

AFFIRMED.

APPENDIX A

DEWEY SMITH NUMBER 200,650, DIVISION “J”

VERSUS 19TH JUDICIAL DISTRICT COURT

THE BOARD OF TRUSTEES PARISH OF EAST BATON OF THE LOUISIANA SCHOOL ROUGE EMPLOYEES’ RETIREMENT STATE OF LOUISIANA SYSTEM

WRITTEN REASONS FOR JUDGMENT

STEVE A. ALFORD, Judge.

The plaintiff, Dewey Smith, a retired school bus driver, filed this suit against the defendant, The Board of Trustees of the Louisiana School Employee’s Retirement Systems, to restore payments under the Bus Drivers Retirement Plan. The Board ceased paying Mr. Smith retirement benefits in April, 1967. The basis of the Board’s denial was that Mr. Smith was not entitled to receive benefits under the applicable provisions of state law. The circumstances surrounding the lawsuit are as follows.

Mr. Smith began employment with the school board on May 5, 1955. He applied for entrance into the retirement system and his creditable service began on July 2,1956. The disqualifying injury occurred in July of 1964. Mr. Smith applied for retirement benefits on April 20, 1966, and the application was approved on March 20,1967, retroactive to June 1, 1966. Payments were made in the total amount of $838.20 before the retirement benefits were terminated on April 19,1967. Also relevant is Mr. Smith’s driving record during the years immediately after his accident and prior to his retirement. During the 1964-65 school year, Mr. Smith actually drove the bus only 30% of the 180 day year. A substitute driver operated the bus during the remainder of the year although Mr. Smith remained in the employ of the Washington Parish School Board. Again, in the 1965-66 school year Mr. Smith had a contract of employment with the school board, but he employed a substitute driver to actually drive the bus. In his final year of employment, the 1966-67 school year, Mr. Smith remained employed by the Washington Parish School Board even though the paychecks were turned over to the substitute driver who actually operated the bus. On March 20, 1967 the substitute driver was hired by the school board as the full time driver.

Two issues are presented to the court for resolution. The first issue is whether the plaintiff is entitled to any retirement benefits under the act establishing the Louisiana School Employees’ Retirement System. The second question is, if the plaintiff is entitled to benefits, should a credit be given for the $838.20 previously paid by the Retirement System.

Eligibility for benefits under the Louisiana School Employees’ Retirement System is determined according to LSA-R.S. 17:914. That statute provides:

LSA-R.S. 17:914. Disability retirement benefits, application for; eligibility.
Upon the application of a member in service or his employer, any member who has had five or more years of creditable service may be retired by the board of trustees, not less than thirty and not more than ninety days next following the date of filing such application, on a disability retirement allowance, provided that the medical board, after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for the further performance of his duty; that such incapacity is likely to be permanent; and that such member should be retired.

As pointed out by the plaintiff, there are four elements essential to a valid claim for benefits:

(1) An application must be made;
(2) The applicant must be a “member in service”;
(3) The applicant must have five or more years of creditable service; and
(4) The medical board must certify, after an examination, that the member is disabled, that his disability is permanent and that the member should be retired.

If any of the four elements are not satisfied, the applicant is not entitled to benefits.

There is no question that an application was made since the application is in the record. The serious question in this case is whether Mr. Smith met the second requirement of the statute that he be a “member in service”. “Member” is a defined term under the statutory provisions governing the Retirement System. Under LSA-R.S. 17:882(14), as effective at the time of plaintiff’s retirement, member is defined as “any school bus driver, school janitor, school custodian or school maintenance employee included in the membership of the system .”. If Mr. Smith was a school bus driver within the meaning of that statute, then he is now entitled to retirement benefits. Thus, the precise question for resolution by this court is does an individual have to actually drive a school bus in order to be a school bus driver within the intendment of LSA-R.S. 17:882(14). Although there is no jurisprudence dealing directly with the question, the Attorney General issued an opinion on a similar matter, (see Op.Atty. Gen., 1946-1948, p. 952). The attorney general expressed the opinion that the word “driver” can only mean one who actually drives a bus. In Comeaux v. School Employees’ Retirement System, 241 So.2d 298, (La.App.1970) the court suggested, albeit in dicta, that both an employment contract and actual driving were requisites for a school bus driver to qualify for benefits. In addition, the legislative intent on the matter clearly expressed in the 1970 amendment of LSA-R.S. 17:882. In Section (11) of that statute “employee” was redefined, in part, to mean “any person legally occupying a position as a school bus driver who actually renders a service by driving a school bus during the full time of his employment . . . .”. Even though that provision was not in effect at the time of the present plaintiff’s retirement, it is a clear expression of legislative intent.

Mr. Smith applied for benefits on April 20, 1966. At that time he was not actually driving the bus. Since he was not actually driving a bus he was not a “school bus driver”, and, therefore, was not a “member” as defined in LSA-R.S. 17:882(14). Since he was not a member at the time of his application for benefits, he is not eligible for benefits under LSA-R.S. 17:914.

The court need not reach the second issue concerning the offset of the $838.20 paid in error as the plaintiff is not entitled to benefits at all.

For the foregoing reasons it is ordered, adjudged and decreed that judgment be rendered in favor of the defendant, The Board of Trustees of the Louisiana School Employees Retirement System, and against the plaintiff, Dewey Smith, dismissing plaintiff’s suit at his costs.

Baton Rouge, Louisiana, this 5th day of November, 1979.


text:
    SUCCESSION of Alex Joseph MELANCON.
    No. 13539.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Hugh G. Oliver, Westwego, for respondent-appellee Enola Marie Melancon.
    George J. Ledet, Jr., of LaPlante & Le-det, Cut Off, for plaintiffs-appellants Floyd F. Falgout, Sr., Lloyd J. Falgout, Genevia Falgout Adams, Hazel Falgout Matherne and Shirley Falgout Garabaldi.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the trial court dismissing the claim of plaintiffs and rendering judgment in favor of the defendant, Enola Marie Melancon, wife of Howard A. Perez, in a suit to annul the judgment of possession in the Succession of Alex Joseph Melancon, Number 10,379 on the Probate Docket of the Seventeenth Judicial District Court, Parish of Lafourche, State of Louisiana, which recognized the defendant as the sole heir of her deceased brother, Alex Joseph Melancon. We affirm.

Alex Joseph Melancon died in Raceland, Lafourche Parish, Louisiana, on July 13, 1979. His parents predeceased him. He was never married, had no children, and never adopted, nor was adopted. The deceased was one of three children of Willie Melancon and Anita Kiff Melancon. One of his sisters, Enola Marie Melancon, wife of Howard A. Perez, survived him. The other sister, Victoria Marie Melancon, never married but had five children, who are the plaintiffs in this suit to annul. Victoria predeceased Alex, having died about 1930.

The plaintiffs, Floyd F. Falgout, Sr., Lloyd J. Falgout, Genevia Falgout Adams, Hazel Falgout Matherne and Shirley Falg-out Garibaldi, brought this petition to nullify the aforesaid judgment of possession, dated November 12, 1979, alleging that as the children of Victoria Melancon they are her legal heirs and descendants, entitled to represent her in the aforesaid succession and are entitled to their pro-rata share of the property of the succession. The petition alleges that the judgment of possession was obtained through fraud because the affidavit of death and heirship fails to refer to Victoria’s five children despite the fact that this was well known to the defendant.

We believe that Succession of Wesley, 224 La. 182, 69 So.2d 8 (1953), is dispositive of this case. See also Quiett v. Estate of Moore, 378 So.2d 362 (La.1979), on rehearing. Illegitimate children, such as the plaintiffs herein, are not granted any right of inheritance to the estate of the legitimate relations of their mother (or father). LSA-C.C. art. 921.

For the foregoing reasons and the written reasons for judgment assigned by the trial judge in this matter, we conclude that the plaintiffs have no right of inheritance in the estate of Alex Joseph Melancon, and that the trial court properly dismissed the suit to annul the judgment of possession herein. The judgment appealed is affirmed at appellants’ costs.

AFFIRMED.

APPENDIX A

SUCCESSION OF ALEX * 17TH JUDICIAL DISTRICT JOSEPH MELANCON COURT

• PARISH OF LAFOURCHE

PROBATE NUMBER 10379

• STATE OF LOUISIANA

REASONS POR JUDGMENT

WOLLEN J. FALGOUT, Judge.

This matter arises out of a petition to nullify a Judgment of Possession:

Alex Joseph Melancon was one of three children. He never married, never adopted anyone and he himself was never adopted. His parents were deceased at the time of his death. Alex Joseph Melancon died in Raceland, Louisiana on July 13, 1979 being survived by his sister, Enola Marie Melan-con, wife of Howard A. Perez and five children of his other predeceased sister, Victoria M. Melancon, the plaintiffs in this case. Victoria M. Melancon was never married, hence, the petitioners are illegitimate children of their deceased mother, Victoria. Enola Marie Melancon, wife of Howard A. Perez, was recognized as the sole heir of the deceased Alex Joseph Melancon in a Judgment of Possession signed November 12, 1979.

Petitioners contend that they are entitled to represent their deceased mother under Article 897 of the Louisiana civil code. Article 897 provides:

“In the collateral line, representation is admitted in favor of the children and descendants of the brothers and sisters of the deceased, whether they came to the succession in concurrence with the Uncle and Aunts . . ."

Respondents, Enola Marie Melancon, contends that she is entitled to the succession of her brother, Alex Joseph Melancon, as the only surviving sister and that the petitioners have no right to the succession citing civil code article 921. Civil code Article 921 reads as follows:

“The law does not grant any right of inheritance to natural children * to the estate of the legitimate relations of their father or mother.” (* English translation of French Text incomplete; should include “even when duly acknowledged.”)

There are several articles of the La. civil code that are relevant to the facts of this case.

Article 206 provides:

“Illegitimate children, though duly acknowledged, cannot claim the rights of legitimate children. The rights of natural children are regulated under the title: of Successions.”

Article 877 found in the title “of Successions” provides as follows:

“Legal succession is that which the law has established in favor of the nearest relation * of the deceased.” (* English translation of French text incomplete; should include “legitimate.”)

In this same section of the code, article 886 states that there being no testament or the testament be null or without effect, the succession is then open in favor of the legitimate heirs, by the mere operation of the law. Article 921, in the chapter “of Irregular Succession”, states clearly that:

“The law does not grant any right of inheritance to natural children * to the estate of the legitimate relations of their father or mother.” (* English translation of French text incomplete; should include “even when duly acknowledged”).

Act no. 607 arising out of the 1979 Regular legislative session does not in any way effect the substance of the article cited earlier.

In the case of Succession of Wesley, La.App., 69 So.2d 8, Gus Wesley, an illegitimate, died intestate without ascendants or descendants leaving only a separate estate. The claimants to the succession were his widow and a half-sister of legitimate birth. The La. Supreme Court states on page 13 of the opinion as follows:

Under article 923 the Natural brothers and sisters of a deceased natural child, the other natural children of the same parent, are called to his succession if his father and mother died before him, and this in effect, excludes his brother and sister of legitimate birth from inheriting from him. Reciprocally, a Natural child cannot inherit from the children of his mother or father born in wedlock. Under article 921, the Natural child has no right of inheritance from the legitimate relations of his father or mother. Under this article, Gus Wesley, if he had survived the relatrix, would have had no right of inheritance in her succession.”

In the ease of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, a case arising out of Louisiana, the United States Supreme Court stated:

“But the choices reflected by the intestate succession statute are choices within the power of the state to make. The Federal constitution does not give this Court the power to overturn the states choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better rules. Of course, it may be said that the rules adopted by the Louisiana Legislature “discriminate[s]” against illegiti-mates. But the rules also discriminate against collateral relations, as opposed to ascendants, and against ascendants as opposed to descendants.”
“. . . [b]ut the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State.”

The case of Labine v. Vincent has not been specifically overruled.

Accordingly, the petition to nullify the Judgment of Possession will be dismissed at the cost of plaintiff petitioners.

DATED: Jan. 4, 1980.

      . Attached as Appendix A.


author: LOTTINGER, Judge.

text:
    Mary Elizabeth CLARKE v. Frank Henry BRECHEEN.
    No. 13492.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      Ashton L. Stewart, Baton Rouge, for plaintiff-appellant, Mary Elizabeth Clarke (deceased) and Ivia U. Anderson, as executrix.
    Walton J. Barnes, Baton Rouge, for defendant-appellee, Frank Henry Brecheen.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

The plaintiff, Miss Mary E. Clarke, brought this suit to revoke a donation of immovable property which she made to the defendant, Frank H. Brecheen, in 1972. From a trial court judgment upholding the validity of the donation, the plaintiff appeals.

Two major issues are before us on appeal:

1. Was the consideration given by the defendant for the donation so insufficient that the formula of La.C.C. art. 1526, and therefore the rules peculiar to inter vivos donations, should apply?

2. If the rules peculiar to donations inter vivos apply, did the plaintiff’s reservation to herself of the “use and habitation” of the immovable property render the donation a radical nullity under La.C.C. art. 1533?

Because of our decision on the two issues above, we find it unnecessary to address the question of whether the donation divested the plaintiff of all of her property in contravention of La.C.C. art. 1497.

THE FACTS

Miss Clarke, a poor, single, 67-year-old woman who subsisted primarily on social security and old age benefits, lived in a relatively rundown house at 2933 Midway Street in Baton Rouge, Louisiana. She had lived in the house for a number of years caring for the former owner, Mildred Wilson, an invalid victim of multiple sclerosis. Miss Clarke became owner of the house and lot by testamentary bequest of Miss Wilson. As owner of the house, Miss Clarke rented a part of the dwelling to boarders. Mr. Bre-cheen became a boarder around 1968 and lived in the house with Miss Clarke for about two years. During that time, he and Miss Clarke became fairly close personal friends. Miss Clarke occasionally cooked, washed and ironed for Mr. Brecheen, who in turn performed a few handyman services for her and made some repairs around the house. The testimony reveals that Mr. Bre-cheen also purchased a chair and TV set for Miss Clarke, took her to the doctor’s office on occasion and paid a $142.00 phone bill left by a previous tenant. In May, 1970, Mr. Brecheen purchased a home of his own and moved into it.

On July 25,1972, by authentic act filed in the conveyance records of East Baton Rouge parish, Miss Clarke donated the Midway Street house and lot to Mr. Brecheen. The pertinent wording of the act of donation reads:

“DONOR declares that the subject donation is executed in favor of DONEE in consideration of the gratitude and affection DONOR bears for DONEE because of the assistance and services rendered by DONEE to DONOR.
“It is understood by and between the parties hereto that DONOR retains the right of use and habitation of the within donated property for life, and shall actually continue to use the property as her home, except and unless she is forced by illness to live elsewhere temporarily. It is further understood by and between the parties that DONOR retains the right of income from mineral rights, oil leases, royalties and timber sales for life.”

Almost immediately after the donation was made, Brecheen began paneling the walls, replacing worn ceiling tiles and fixing some of the decayed areas of the house. He also added a second bathroom on the back porch and painted the exterior of the house. He then rented the house to other tenants.

A short time after the act of donation was confected, Miss Clarke suffered a heart attack and had to be hospitalized. The record indicates that she lived in the house a few weeks after returning from the hospital but soon moved in with Mrs. Viola Anderson and Mrs. Anderson’s mother, Ivia Anderson, who lived on Midway Street nearby. Miss Clarke continued to reside with the Andersons through the time of this trial. The record reveals that Miss Clarke did not possess the mental faculties of a normal person her age, but no claim is made that her lack of mental capacity in any way affected the validity of the act of donation.

Miss Clarke filed this suit in 1978 seeking to nullify the donation under the provisions of La.C.C. arts. 1497 and 1533. The defendant answered, denying Miss Clarke’s allegations and contending that the donation was remunerative. Assuming the position of plaintiff in reconvention, Mr. Brecheen claimed that, if the donation was defective, Miss Clarke owed him the sum of $5,472.86, representing remodeling costs, insurance and taxes. Miss Clarke denied the allegations of the reconventional demand. She also filed a supplemental and amending petition alleging that Brecheen’s possession of the property was in bad faith because the defendant knew at the time of the donation that the purported donation divested Miss Clarke of all of her property and that the purported donation reserved the use and habitation of the property to Miss Clarke. Consequently, she sought as damages the fair market rental value of the property from the date of donation to the time of trial-a total sum of $12,000.00.

In his reasons for judgment, the trial judge found that the plaintiff failed in her burden of proving the value of the property at the time of the donation. The basis for the court’s holding was that the plaintiff’s expert real estate appraiser “was admittedly unable to determine the value of the house in its 1972 condition.” The trial court held further that the plaintiff failed to prove that the value of the services for which the property was donated “was out of proportion to the value of the house.” Because of his finding that the plaintiff did not prove the facts necessary to support her allegations, the trial judge upheld the donation.

Miss Clarke died four days before the trial court judgment was rendered. Her succession executrix, Mrs. Ivia Anderson, has been substituted as party plaintiff.

THE LAW

The Louisiana Civil Code lists three types of donations inter vivos: the gratuitous donation, the onerous donation and the remunerative donation. La.C.C. art. 1523. We are concerned in the case at bar with a remunerative donation, one which is made to recompense another person for services rendered or charges incurred. La.C.C. arts. 1523, 1525 and 1526. Though a remunerative donation is not based solely on a spirit of liberality and gratitude, such a donation will still be subject to the rules peculiar to gratuitous donations if “the value of the object given exceeds by one-half that of the charges or of the services.” La.C.C. art. 1526. The formula in this article has been interpreted to mean that, if the value of the charges or the services is not greater than two-thirds the value of the donated object, the rules peculiar to gratuitous donations inter vivos will apply. Whitman v. Whitman, 206 La. 1,18 So.2d 633 (1944); Succession of Danos, 359 So.2d 679 (La.App. 1st Cir. 1978).

If Article 1526’s formula is met, the donation under consideration will be subject, inter alia, to the rule of Article 1533, which prior to 1974 read:

“The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but cannot reserve it for himself.”

Although Article 1533 was amended by Act 210 of 1974 to allow the donor to reserve for his own advantage the enjoyment or usu-fruct of the immovable property, a general and well settled principle of statutory construction requires us to give the new article prospective application only. La.C.C. art. 8. At least two courts which have addressed the problem have indicated that the 1974 amendment will be given prospective application only and that acts of donation con-fected prior to the amendment will be governed by the prior provisions of Article 1533. Russell v. Culpepper, 344 So.2d 1372, 1380 (La.1977); Estate of Richard v. Richard, 321 So.2d 375 (La.App. 3rd Cir. 1975); see also Whitten v. Whitten, 303 So.2d 238 (La.App. 2nd Cir. 1974).

MANIFEST ERROR

We are convinced that the trial court committed manifest error in holding that the plaintiff did not prove the value of the house at the time of the donation in 1972. While the real estate appraiser’s testimony was at times- confusing, he testified unequivocally that the value of the house in 1972, given the condition of the property as described to him by counsel and various witnesses, was $6,000.00 to $7,000.00. The defendant introduced no testimony or other evidence to refute or rebut the plaintiff’s appraiser’s valuation. The trial judge was clearly wrong when he stated in his written reasons that the appraiser’s estimate was based on the 1978 condition of the house. The record reveals that the $6,000.00 to $7,000.00 valuation was based on the 1972 condition of the house, and this point was elucidated by questioning from plaintiff’s counsel on redirect examination.

We find additionally that the trial court erred in failing to apply the rules peculiar to donations inter vivos to the donation in this case. While there is no question that Mr. Brecheen performed a number of neighborly services for Miss Clarke and purchased a few items of furniture and appliances for her, the record reveals that these services and objects performed and given by Mr. Brecheen came nowhere near two-thirds the value of the property in 1972. See Whitman v. Whitman, supra; Succession of Danos, supra; La.C.C. art. 1526. Therefore, although the donation was a remunerative donation, the value of the services and objects given were below the value required to meet the formula of Article 1526. Consequently, the rules peculiar to donations inter vivos must apply.

Obviously, the rules peculiar to donations inter vivos would apply a fortiori were we to find that the donation in this case was purely gratuitous-and interpretation which is not necessarily precluded by the wording of the act of donation. We must also state in this connection that the gratuitous or remunerative nature of this donation must be determined by the rules defining those particular donations (La.C.C. arts. 1523 et seq.), and not by the rule of La.C.C. arts. 1772 and 1773, which are general rules dealing with the motive for entering into conventional obligations. Where the Civil Code provides special rules for determining the nature of a particular act, those special rules will supercede other co-dal rules which are general in nature. The case at bar is governed by Title 2 of Book 3 of the Civil Code which deals with donations, and not by Title 4, which deals with conventional obligations.

DID THE RESERVATION OF THE ‘USE AND HABITATION’ CONTRAVENE ARTICLE 1533?

We turn now to the issue of whether the reservation of the “use and habitation” by Miss Clarke fell within the prohibition of Article 1533 prior to the 1974 amendment. As indicated above, Article 1533 prior to its amendment precluded a donor from reserving to himself the “enjoyment or usufruct” of the property given to the donee. The prohibition of Article 1533 became law in Louisiana for the first time with the adoption of the Louisiana Civil Code of 1825. (Article 1520 of the Louisiana Civil Code of 1825.) Prior to 1825, Louisiana, like France, permitted the donor to reserve for his own advantage or to give to another the usufruct of the immovable property donated. (Article 50 of the Digest of 1808 and Article 949 of the French Code Civil.) The redactors of the Civil Code of 1825, in the Projet to that Code, inserted the prohibition against reserving the usufruct and stated as a reason:

“The reservation of the usufruct in favor of the donee [donor] would produce the disadvantage of concealing from the eyes of the public the change of property which had taken place. He who wishes to enjoy during his life a piece of property which he destines for another, can give it by last will, and it is not easy to perceive the use of a donation inter vivos, with reserve of usufruct.” Projet of the Louisiana Civil Code of 1825, page 209; see Dawson v. Holbert, 4 La.Ann. 36 (1849).

Whatever the validity of the reason for the prohibition given by the redactors, our courts have consistently held that a reservation of usufruct on behalf of the donor renders radically null the donation which contains such a reservation. A donation containing such a reservation is an absolute nullity. Dawson v. Holbert, supra; Fontain v. Manuel, 46 La.Ann. 1373, 16 So. 182 (1894); Haggerty v. Corri, 5 La.Ann. 433 (1850); Straus v. Elliot, 43 La.Ann. 501, 9 So. 102 (La. 1891); Almond v. Adams, 221 La. 234, 59 So.2d 132 (La. 1952); Heintz v. Gilbert, 140 So.2d 518 (La.App. 1st Cir. 1962).

Generally speaking, a person who has a usufruct over immovable property has two basic rights — the right to possess, use and enjoy the property and the right to receive the fruits produced by the property. La.C.C. art. 539; see also former Article 533 prior to its amendment in 1976. In the old case of Straus v. Elliot, supra, the Supreme Court held that the reservation of the “use and occupancy” was prohibited under Arti-ele 1533. The court said the words “use and occupancy” are equivalent in meaning to “use and habitation,” the words used in the act of donation in the case at bar. The court in Straus reasoned also that the “use” is included within the term “usufruct” mentioned in Article 1533. A reservation of the “use” of the property would therefore fall within the prohibition of that article. In the case of Heintz v. Gilbert, supra, this court held that the reservation of “occupancy” to the donor was also violative of the prohibition of Article 1533.

While it is clear that the language in the act of donation in the case at bar did not reserve to Miss Clarke the right to receive all fruits of the property, the reservation of the “use and habitation” fell sufficiently within the prohibition of Article 1533 to render the donation absolutely invalid. The donation must therefore fall under that article.

Having found that the donation is invalid under Article 1533, we need not decide the question of whether the donation is also invalid under Article 1497, which prohibits a person from divesting himself of all of his property without reserving enough for his subsistence.

DAMAGES

Mr. Brecheen’s claim for improvements and expenses, and Miss Clarke’s claim for rents, are dependent upon the good or bad faith of Mr. Brecheen in his possession of the donated property. For purposes of accession, our code defines the bona fide possessor as one “who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of.” La.C.C. art. 503 prior to 1979 amendment. The code also defines good faith in the context of acquisitive prescription. La.C.C. art. 3451. In matters of accession, good faith is dependent on the existence of a just title-an act sufficient to transfer ownership, such as a sale, an exchange or a donation. Yianno-poulos, 2 La. Civil Law Treatise, Property, § 195 at 527 (2nd Edition 1980); La.C.C. art. 3485. The issue in the case at bar is whether a donative title which is radically defective as a matter of law can nonetheless serve as a “just title” for purposes of good faith as that term relates to accession.

We are cognizant of cases which hold that a person who possesses under an error of law cannot be a bona fide possessor. Heirs of Dohan v. Murdock, 6 So. 131 (La.1889); McDade v. Bossier Levee Board, 33 So. 628 (La.1902); Thibodeaux v. Quebodeaux, 282 So.2d 845 (La.App. 3rd Cir. 1973). Likewise, courts have held that a title which is absolutely null cannot be considered a just title. Hicks v. Hughes, 65 So.2d 603 (La. 1953); Whitten v. Whitten, 303 So.2d 235 (La.App. 2nd Cir. 1974). However, the cases dealing with errors of law as such errors relate to just title concern errors in the chain of title about which the vendee was presumed to know, or they concern errors of law in relation to acquisitive prescription, which is a different matter than accession. And the cases dealing with absolute nullities as such nullities affect just title have been concerned with the right of a person to invoke acquisitive prescription and not with the rights and liabilities of possessors as to the fruits of property they possess.

Under French doctrine and jurisprudence, good faith for purposes of accession is not precluded by an error of law or an error of fact. A possessor may be in good faith even though his title is null or annullable on account of defects in form or substance. Yiannopoulos, supra, at 528; see also Note, 8 Tulane Law Review 596 (1934). Under both French and Louisiana Law, good faith is always presumed. La. C.C. art. 3481.

We are convinced from a thorough review of the record that Mr. Brecheen had no knowledge of any defect in his title and that he never had reason to suspect any defect in the donated title he received from Miss Clarke. Indeed, Miss Clarke’s title was valid. We find, too, that the act which transferred the property to Mr. Brecheen was, indeed, an act translative of ownership. We are convinced that Mr. Brecheen had no idea that the reservation of the usufruct rendered the donation an absolute nullity. Mr. Brecheen had no knowledge of any facts which did or should have put him on notice of any defect in his title. Regardless of whether the donation was void ab initio as a matter of law, Mr. Brecheen nonetheless possessed under an act transla-tive of title and he was ignorant of the defects in the title. We hold, therefore, that Mr. Brecheen was a bona fide possessor for purposes of accession. We will therefore apply by analogy La.C.C. art. 1569 which relieves a donee from restoring the fruits to the donor until the demand for revocation' or recission is made. We think this rule should also apply in cases in which a donation is sought to be annulled as a matter of law when the donee is a bona fide possessor.

As a bona fide possessor, Mr. Bre-cheen is entitled to the lesser of the fair market value of the improvements or the enhanced value of the property, at the option of Miss Clarke’s succession representative. The succession executrix, in turn, is entitled to the rents actually collected by Mr. Brecheen on the property from the date of judicial demand until this judgment becomes final. We will remand this case so that the succession executrix can decide which' option to take and so that the amount of rents actually collected from date of judicial demand can be determined, and a final judgment rendered.

Therefore, for the above and foregoing reasons, the decision of the trial court upholding the donation is reversed. This case is remanded for the purpose of taking additional evidence consistent with the views expressed hereinabove. The costs of this appeal will be borne by the defendant.

REVERSED AND REMANDED.


author: COLE, Judge.

text:
    Dewey R. RAY et al. v. Leandren PEEPLES et al.
    No. 13473.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Larry D. Book, Baton Rouge, for plaintiffs-appellees Dewey R. Ray and Mildred S. Ray.
    Michael V. Clegg, Baton Rouge, for defendants-appellants Leandren Peeples and Mary Jean Peeples.
    Curtis K. Stafford, Jr., Baton Rouge, for third-party defendant-appellee Corrie E. Armstrong.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a claim by the sellers of real estate for the collection of a deposit made by potential buyers of the property who failed to meet a purchasing deadline.

In 1978, Dewey R. Ray and his wife listed their home for sale with Lewis and Associates, Inc., real estate brokers. The property is more particularly described as Lot 120 of Forest Heights Subdivision which is located within East Baton Rouge Parish, Louisiana.

On July 26, 1978, Leandren and Mary Taylor Peeples entered into a purchase agreement with the Rays to buy the property for the price of $45,000.00. According to that agreement, the act of sale was to take place no later than October 1, 1978. The Peeples deposited $500.00 and, in that regard, the purchase agreement provided:

“In the event of default by the purchaser the seller shall have the right, at his option, either to demand specific performance or to retain the deposit as liquidated damages. Either party hereto who fails to comply with the terms of this offer, if accepted, is obligated to pay REALTOR’S fees, attorney fees and all other fees and costs incurred in enforcing collections and damages.”

The buyers had $19,500.00 cash which was to be applied to the purchase price and the agreement was conditioned upon their being able to obtain financing for the remaining $25,500.00. When it became apparent the Peeples would not be able to finalize their financing arrangements by October 1, 1978, they, through their agent, Corrie E. Armstrong, obtained from the Rays an extension of time until November 1, 1978, by depositing an additional $5,000.00. A written agreement was executed by the parties at that time which provided all of the terms and conditions of the prior purchase agreement were to remain unchanged.

When the extension period expired and the Peeples were still unready to finalize the sale, further efforts to do so were abandoned and, on December 18, 1978, the plaintiffs filed suit for forfeiture of the $5,500.00 deposit.

The defendants maintained they fulfilled their obligation under the purchase agreement because they made a good faith effort to obtain financing but were unable to do so by the expiration of the extension period.

Subsequent to-trial on the merits, judgment was rendered in favor of the plaintiffs. The district court determined the defendants had failed to make a good faith effort to secure financing, that timely demands were made upon their agent to close the sale, and that time was of the essence in this contractual situation because the Rays had committed to take ownership of another residence and were relying on the funds from the Peeples sales to comply with that obligation. The court further decided a formal putting in default of the buyers was not necessary but, if it was, that requirement had been met by the actions of the Rays’ agent, Lewis & Associates. We affirm.

The jurisprudence of this state relative to sales agreements conditioned upon obtaining financing is stated in Woods v. Austin, 347 So.2d 897 (La.App. 3d Cir. 1977), as follows:

“A stipulation in a contract to sell, which makes the sale conditioned upon the purchaser’s ability to obtain a stipulated loan to finance the purchase, is a contract subject to a suspensive condition. It imposes upon the purchaser the duty to make a good faith effort to obtain the loan. Whether he has acted in good faith depends on the facts and circumstances in each case. If the purchaser, through no fault of his own, is unable to obtain the loan, he is released from his obligatipn to purchase and is entitled to the return of his deposit. Treadaway v. Piazza, 156 So.2d 328 (La.App. 4 Cir. 1963); Liuzza v. Panzer, 333 So.2d 689 (La.App. 4 Cir. 1976); Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927).”

We are persuaded, as was the trial judge, that the defendants here did not make a good faith effort to obtain the required financing. The evidence reflects an application was made by or on behalf of the Peeples with Person-to-Person Financial Center in Baton Rouge, Louisiana, for the borrowing of $12,000.00. Some confusion exists as to the date of that application, as there are some indications it could have been made on October 6, 1978, or that it may have been made as late as November 7, 1978. That application was denied by that lender due to insufficient information and the applicants were so notified by mail on November 8th.

Additionally, Louis L. Eames, the executive vice-president and managing officer of the First Federal Savings and Loan Association was also visited by the Peeples’ agent, Corrie E. Armstrong, relative to a loan for this purchase. That meeting was on October 31, 1978, just one day prior to the deadline called for by the extension which the sellers had granted. The application submitted did not contain sufficient information to be processed and, according to Eames, if it had been complete, at least a week to ten days would have been required to process it.

There is some evidence the defendants were anticipating the proceeds of a lawsuit would come into their possession during this period of time and they were hopeful the amount to be financed would be lessened considerably. Nevertheless, we find that neither of the applications made were serious attempts to comply with the terms of the agreement.

The appellants also contend the ap-pellees’ claim must be rejected because the Peeples were not put in default according to law. The district court, however, correctly analyzed this issue as it found that time was of the essence in this agreement and a formal putting in default is not necessary where that condition exists. The plaintiffs had agreed to purchase another residence on November 10, 1978 and they were relying on the proceeds of the Peeples sale to consummate that transaction. The Peeples’ agent was well aware of that fact and knew and admitted a timely closing was necessary. At page 144 of the transcript the agent testified:

“Q. You were advised at that time?
A. Over the phone, yes, sir. He could not get the necessary information from the social security office in Detroit. And time was of the essence—
Q. You say time was of the essence?
A. I felt like it was.”

Where time is of the essence of a contract, a formal putting in default is not required. In Brooks v. Neyrey, 167 So.2d 400 (La.App. 4th Cir. 1964), the court noted:

“It is well settled that a contractor’s failure to complete a building contract within the time specified in the contract constitutes merely a passive breach thereof and that a putting in default is a condition precedent to the recovery of liquidated damages for the contractor’s delay in completion unless by the terms of the contract a putting in default is waived or unless by stipulation in the contract or by the nature and circumstances of the agreement time is of the essence thereof, or unless a putting in default is excused by some act of the obligor which would render it a vain and useless thing. See Haffner & Taylor v. Perloff, 174 La. 687, 141 So. 377; Herman Bros. v. Troxler, 166 La. 587, 117 So. 727Binnings Construction Company, Inc. v. Louisiana Life Insurance Company, La.App., 139 So.2d 561, 1 Loyola Law Review 127.” (Emphasis Added.)

Therefore, for the reasons set out above, the judgment of the district court is affirmed, all costs of this appeal to be paid by the appellants.

AFFIRMED.


text:
    Doris JORDAN v. LEON PICKARD CHEVROLET, INC., et al.
    No. 13483.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Arthur J. Cobb, Baton Rouge, for plaintiff-appellee.
    E. Wade Shows and Michael V. Clegg, Adcock, Dupree & Shows, Baton Rouge, for defendant-appellant.
    Henry A. Mentz, Jr., Hammond, for General Motors, appellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is a suit by purchasers of an automobile against the seller because of alleged misrepresentation and redhibitory defects in the vehicle.

On May 10, 1976, Roy 0. Jordan and his wife, Doris C. Jordan, purchased a 1975 Chevrolet Monte Carlo from Leon Pickard Chevrolet, Inc. in Denham Springs, Louisiana. The vehicle was represented by Pick-ard to be a new automobile and registered thirty-one miles on the odometer on that date.

Mr. and Mrs. Jordan continued to reside in Louisiana until July of that year when they moved to Memphis, Tennessee and eventually to Nashville, North Carolina. Upon a return to Baton Rouge, Louisiana, in July 1976, the car had developed minor problems and it was repaired at that time by Pickard.

When the Jordans returned to North Carolina, additional difficulty was experienced and the vehicle was taken to Nance Chevrolet Co., Inc. in Asheboro, North Carolina for repairs. When the work was submitted by that dealer to the manufacturer for payment under warranty, the warranty was denied because the car had been plaeed on demonstrator status by Pickard prior to it being sold and the warranty period had already expired. When the matter was not explained to their satisfaction, suit was filed against the seller for rescission of the sale due to the alleged misrepresentation and redhibitory defects and for damages for violation of the Motor Vehicle Information and Cost Savings Act found in Title 15, Section 1984 of the United States Code which deals with odometer tampering. Pickard thereafter filed a third party demand against General Motors Corporation. The matter was tried in due course and judgment was subsequently rendered in favor of Roy 0. Jordan and against Pickard.

In its written reasons for judgment, the trial court noted since the car had been traded in by the Jordans prior to trial, a rescission of the sale was not possible and only a money judgment in the nature of a reduction in price would be applicable. See Civil Code Article 2541, et seq. The court then determined because the car had been placed on demonstrator status by the dealer, it was a “second hand” vehicle even though it had only thirty-one miles on the odometer. An award of $600.00 for the trouble and inconvenience experienced by the plaintiff was made. Additionally, the court rendered judgment in the amount of $72.28 for repairs which should have been covered by the warranty and awarded a $500.00 attorneys’ fee in favor of Jordan. The third party demand against General Motors was dismissed. We find the judgment must be amended and, as amended, affirmed.

Our review indicates the vehicle was placed on demonstrator status by the dealer on January 23, 1975, but was removed from that status in March of that year. There is absolutely no proof the odometer was tampered with, or that the car was actually used as a demonstrator, or that it had been driven for any more miles than the thirty-one which it registered at the time of sale. The manufacturer was notified of the fact the car was on demonstrator status but was apparently not notified when it was removed from that status. Jordan, due to this oversight on the part of the seller, purchased a vehicle without the nationwide warranty to which he was entitled. It had expired one year from the date the vehicle was placed on demonstrator status and before the sale to Jordan.

The plaintiff paid $5,245.30 plus tax and license expense for the car, drove the car for an estimated 48,000 miles and in December 1978, some thirty-one months after its purchase, received a $3,000.00 trade in allowance for it.

Pickard recognized the car would have been warranted for one year from the date of sale and made several repairs at no expense to the purchasers. Although the speedometer broke after their dealings with Pickard had ended, Jordan did not have it repaired and his total claimed expenses during his ownership of the vehicle amounted to $72.28.

We find also Jordan purchased an extended warranty for $108.00 which was to cover an additional twenty-four months or twenty-four thousand miles. He received no benefit at all for that payment and is entitled to recover that amount from the dealer.

The appellant contends the $600.00 award for the plaintiffs’ trouble and inconvenience must be denied because there is no showing of an actual monetary loss in that regard. That contention has merit. In DiGiovanni v. April, 261 So.2d 360 (La.App. 1st Cir. 1972), this court said:

“Plaintiff does seek an increase in the amount of damages awarded by the trial court, contending entitlement to damages for inconvenience and loss of use of his automobile while it was being repaired. The evidence shows, however, that plaintiff sustained no actual automobile rental expenses or other pecuniary loss besides payment of the cost for the repairs, which was awarded to him. Damages for worry, inconvenience and annoyance will not be awarded unless these items can be translated into a calculable pecuniary loss, Aiken v. Moran Motor Company, 165 So.2d 662 (La.App. 1st Cir. 1964).”

There having been no such showing on the part of the purchaser, that item of damages is not recoverable here.

Attorneys’ fees in cases such as this are authorized by the terms of Civil Code Article 2545, which provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

The seller here knew or should have known that the nationwide warranty was not in effect and the extended warranty which the buyer purchased was of no value. The attorneys’ fee awarded is, therefore, proper under the facts and circumstances of this case and is reasonable.

No contentions are made by the third party plaintiff that its demands against General Motors were improperly dismissed.

The judgment of the district court is amended to delete the net sum of $492.00 from the amount awarded Jordan. This results from allowing the recovery of $108.00 paid for the purpose of extending the warranty and disallowing the $600.00 awarded for trouble and inconvenience. In all other respects, judgment is affirmed. All costs of this appeal to be paid by Leon Pickard Chevrolet, Inc.

AMENDED AND, AS AMENDED, AFFIRMED.