author: CHIASSON, Judge.

text:
    Henry Burk STERLING, Jr., et al. v. C. MARSHALL MARTIN, INC., et al.
    No. 14302.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 16, 1982.
    Writ Denied April 27, 1982.

      Lelia Withers and Tom Withers, Baton Rouge, for plaintiffs-appellants Henry Burk Sterling, Jr., Gussie L. Sterling, Mary Dickinson Sterling, Bernard Baron Sterling, Voltaire Harold Sterling and Mildred Sterling Lewis.
    Judith Atkinson Chevalier, Baton Rouge, for defendant-appellee C. Marshall Martin, Inc.
    Freddie Pitcher, Jr., Baton Rouge, for defendant-appellee Alex Pitcher, Jr.
    Diane L. Crochet, Baton Rouge, for defendant-appellee Gladys D. Honoré, Individually and as Executrix of the Estate of Felix J. Honoré.
    Graeella Simmons, Baton Rouge, for defendants-appellees (Curator) Ella V. Dickens Rideau, Hazel Bennett Burnett, Gail Marie Dickens Cross, Patrick Henry Dickens, Edith Weaver Dickens, Charles B. Dickens, Barbara Ann Dickens Harvey, Betty Jean Dickens, Willie Clarence Dickens and Mary Charlott Dickens.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants, some of the heirs of Henry and Katie Sterling, appeal the judgment of the trial court sustaining the exceptions filed by C. Marshall Martin, Inc. and Gladys D. Honoré, testamentary executrix of the Estate of Felix J. Honoré, defendants-appellees. Appellants also appeal the order of the trial court compelling deponents to answer certain questions and the order awarding attorney fees to appellees and Alex Pitcher, Jr. in connection therewith.

ON EXCEPTIONS OF PRESCRIPTION

Plaintiffs instituted suit seeking to nullify an August 21, 1956, judgment ordering the public sale of 26.65 acres of land located in Section 55, Township 7 South, Range 1 East, East Baton Rouge Parish, Louisiana, belonging to the Succession of Henry Sterling.

The basis of appellants’ suit is their allegation that the signature of Katie Stern Sterling, the duly qualified administratrix of the Succession of Henry Sterling, was forged on the verification of various pleadings filed by her attorney in connection with the succession proceedings, including particularly, the verification of the petition to sell at public sale.

Pursuant to the order of the court, the sheriff sold the property at public sale on September 26, 1956, to Felix Honoré, and the sheriff’s deed dated October 8, 1956, was duly recorded in Original 31 of Bundle 3819, Conveyance Book 1267, Folio 455 of the records of East Baton Rouge Parish, Louisiana. The Honores lived openly and without disturbance on the property until the sale of said property on December 17, 1973, to the defendant-appellee, C. Marshall Martin, Inc.

Made defendants herein are C. Marshall Martin, Inc., present owner of the property sold at the sheriff’s sale; the remaining heirs of Henry and Katie Sterling who did not join with the plaintiffs; Alex Pitcher, Jr., former attorney for the Succession of Henry Sterling; and the Estate of Felix Honoré and/or his heirs.

Appellees’ exceptions of prescription of ten years, under Louisiana Civil Code Article 3474, et seq., were sustained by the trial court and plaintiffs’ suit was dismissed in its entirety.

Louisiana Civil Code Article 3474 provides, as follows:

“Immovables are prescribed for by ten years, when the possessor has been in good faith and held by a just title during that time.”

According to Louisiana Civil Code Article 3479, four conditions must concur to acquire ownership of immovables by ten year prescription. These conditions are:

“1. Good faith on the part of the possessor.
“2. A title which shall be legal, and sufficient to transfer the property.
“3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
“4. And finally an object which may be acquired by prescription.”

Good faith is always presumed and bad faith must be proven. Louisiana Civil Code Article 3481. Appellants have failed to show any evidence of bad faith on the part of Felix Honoré. There is no allegation nor evidence that Felix Honoré knew of any alleged forgery or that he was a part of any scheme to defraud Katie Stern Sterling and/or the appellants herein. On the other hand, the evidence shows that Katie Stern Sterling attended the sheriff’s sale when the property was bid in by Mr. Hon-oré; that she made no opposition to the sale; and that from all appearances, she acquiesced in and approved the public sale of the property. Felix Honoré, therefore, was acting in good faith when he purchased the subject property at the sheriff’s sale.

Appellants further argue that C. Marshall Martin, Inc. was in bad faith because its attorney undertook a title examination on its behalf. The good or bad faith of C. Marshall Martin, Inc. is irrelevant for two reasons: first, the possession of C. Marshall Martin, Inc. is unnecessary to establish ten-year good faith acquisitive prescription since the Honores owned and possessed the property for over seventeen years; second, in accordance with Louisiana Civil Code Article 3482, it is only necessary that possession be commenced in good faith and whether its successor in title is in good faith or bad faith, he is able to “tack” the good faith possession of his author in title. Devall v. Choppin, 15 La. 566 (La.1840) and Liuzza v. Heirs of Nunzio, 241 So.2d 277 (La.App. 1st Cir. 1970).

The second condition requires a title which is legal and sufficient to transfer the property.

Appellees contend the sheriff’s deed had no defects apparent on its face and is trans-lative of ownership.

Appellants contend the petition to sell at public sale filed in the succession proceeding is part of the title which appellees must rely upon.

Louisiana Revised Statutes 13:3716 provides:

“In any petitory action or other suit to try or establish title to immovable property, where the litigant upon whom the onus rests of proving title shall offer in evidence in support thereof the deed of any sheriff, succession representative, trustee in bankruptcy, receiver, constable, auctioneer or other person authorized by the laws of this state or of the United States to make public sales, if the same be fair on its face, be duly recorded and purport to convey title from one person to another, such deed shall be prima facie evidence of the authority of the officer or other functionary who made and delivered it and shall moreover be deemed prima facie proof of such sale.”

The deed was introduced into evidence, it was fair on its face, it was duly recorded, and it purports to convey title from one person to another. The sheriff’s deed itself has been held to be sufficient to serve as the basis for a prescriptive title. Hamilton v. Rickerson, 185 La. 199, 168 So. 774 (1936) and King v. Board of Commissioners for the Atchafalaya Basin Levee District, 148 So.2d 138 (La.App. 3rd Cir. 1962).

In addition to the sheriff's deed, valid in form and translative of ownership, we have a writ directing the sheriff to sell at public sale and the judgment of a competent court ordering the issuance of the writ. If more than the deed itself is required, the writ and the order of a competent court coupled therewith are sufficient to serve as the basis for acquisitive prescription. Leverett v. Loeb, 117 La. 310, 41 So. 584 (1906).

Further, a bona fide purchaser at a judicial sale is required only to look to the court's jurisdiction and need not look into the truth of the court’s proceedings. The order to sell protects the purchaser from any irregularities contained in the proceedings. Hammond v. Gibbs, 176 So.2d 465 (La.App. 2nd Cir. 1965); Webb v. Keller, 39 La.Ann. 55, 1 So. 423 (1887); Levenson v. Chancellor, 68 So.2d 116 (La.App.Orl.1953).

In Callahan v. Authement, 99 So.2d 531 (La.App. 1st Cir. 1957), this court stated:

“ * * * Any defect in the title must be shown, so to speak, within the four corners of the act of sale or transfer, on its face.” (p. 539).
“ * * * From the codal provisions and the jurisprudence on this point the following rule may be drawn: an absolute nullity affecting a transfer of immovable property, but not appearing on the face of the title itself, does not prevent the running of ten years prescription acquirendi causa, provided the other requisites of such prescription are present.” (p. 544).

In the instant case, there is no irregularity appearing on the face of the title. The forgery complained of by the appellants, if it does exist, is dehors the instrument conveying title and cannot be .urged against an innocent purchaser.

Conditions three and four are not disputed. The uncontradicted evidence shows that after purchasing the property, Felix Honoré cleared the property, fenced it and built two houses. He had peaceful, opened and uninterrupted possession of the property as owner for over seventeen years. It is also undisputed that the subject property is an object which may be acquired by acquisitive prescription.

The trial court properly sustained appel-lees’ exceptions of prescription and C. Marshall Martin, Inc. is declared to be the owner of the following described property, to wit:

“A certain tract or parcel of land situated in the Parish of East Baton Rouge, State of Louisiana, in Section fifty-five (55), Township seven (7), South Range One (1) East, containing twenty-six and sixty-five one-hundredths (26.65) acres, being a portion of Lot number five (5), as shown on map annexed to act of partition of record in Book No. 30, Folio 343, of the Conveyance Records of this Parish; said tract being bound now or formerly, as follows: on the North by land belonging to the heirs of L.R.A. Caillouet, on the East by land of Lawrence Messina, on the South by land of Laura Acey White, and on the West by land of Mrs. Lena Mona-chello; being the same property acquired by the late Henry Stirling as per act of sale with mortgage of record in Book 86, Folio 301, of the conveyance records of the Parish of East Baton Rouge.”

However, the trial court erred in dismissing the suit against Alex Pitcher, Jr. Pitcher was not a party to the exceptions nor could he have urged the exception of acquisitive prescription. We amend the trial Court’s judgment to dismiss the suit only as to C. Marshall Martin, Inc. and Gladys D. Honoré, as testamentary executrix of the Estate of Felix J. Honoré.

ON MOTION TO COMPEL AND THE AWARD OF ATTORNEY FEES

A deposition was called by the defendants-appellees. After questioning on other matters, deponent Bernard Sterling was asked to identify signatures on some documents; namely, an oil, gas and mineral lease, a cash sale, a mortgage and the succession records of Henry Sterling. At this time, counsel for plaintiffs-appellants, interjected that “. . . we are not identifying or recognizing any signatures on any documents you present.” He further instructed his client not to identify any signatures on any of the documents.

When asked the reason for such instruction to his client, counsel stated that he did not see the relevancy of it. He informed counsel for defendants-appellees that were Voltaire Sterling brought in to identify the same documents, he would also be advised to refrain from making any statement or identifications regarding the signatures thereon. The deposition was terminated.

Thereafter, defendants filed a Motion to Compel and plaintiffs filed a Motion for a Protective Order. A hearing was held and the trial judge held that the plaintiffs were unreasonable in not allowing the deponents to continue answering questions and signed the Motion to Compel. He stated he would award attorney fees at a later date. At the hearing on the exception of ten years acquisitive prescription, the trial judge awarded five hundred dollars for each attorney.

Plaintiffs-appellants argue on appeal that the documents that opposing counsel was referring to are not a part of the litigation. They argue that the trial court had limited the issue of forgery to the petitions to sell and since the appellees have been provided with known copies of Katie Sterling’s signature, the documents presented at the deposition were immaterial and irrelevant. Therefore, plaintiffs-appellants argue that the trial court erred in granting the Motion to Compel and also argue that the award of five hundred dollars per attorney is clearly unreasonable and unjust.

The defendants-appellees argue that, since signatures and their falsifications are the chief issue in the case, any and all signatures purporting to be those of Mrs. Sterling are relevant, especially those pertaining to the Succession of Henry Sterling. The defendants-appellees contend that the deposition took about forty-five minutes (not counting the time for preparation); Motions to Compel Answers to Oral Interrogatories and accompanying memoranda were prepared and filed; the hearing which was held required time for preparation, and; furthermore, briefs were filed in support of the court’s rulings.

The applicable law is found in the Code of Civil Procedure Article 1469, which reads in pertinent part:

sf: s|c sfc * * ‡
“(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.”
* * * * * *

The appellate court will not disturb an award of attorney fees made by a trial court absent manifest abuse of the trial court’s discretion in making that award. Duplechien v. McNabb, 260 So.2d 789 (La. App. 4th Cir. 1972).

The record is void of any indication that the award of expenses is unjust or that the conduct of the party who necessitated the motion was substantially justified. Therefore, the judgment of the trial court is affirmed.

All costs are assessed against plaintiffs-appellants.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Linda B. DODD v. NICOLON CORPORATION, et al.
    No. 14422.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    On Rehearing March 2, 1982.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Linda B. Dodd.
    William J. Doran, Jr., Baton Rouge, for defendant-appellee Nicolon Corp., et al.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Plaintiff Linda B. Dodd, now wife of Ollie T. Perry, fell and injured her knees on May 15,1977, while in the employ of United States Textures Sales Corporation, also known as Nicolon Corporation. She saw Dr. James Thomas Kilroy, an orthopedist, on May 17, 1977. Dr. Kilroy treated plaintiff conservatively for about 11 months for chondromalacia of both knees. Plaintiff continued her employment with United States Textures until January 1,1978, when she went to work for another employer. She missed no work with either employer until April 13, 1978, when Dr. Kilroy found her condition had become bad enough to warrant surgery.

Dr. Kilroy operated on plaintiff’s left knee on April 26, 1978, and she commenced physical therapy on that leg on May 10. By August 29, 1978, Dr. Kilroy found she had good strength in the left knee, and smooth motion in the joint, and that she was much improved.

On September 5, 1978, Dr. Kilroy operated on plaintiff’s right knee. She commenced physical therapy on October 18. On February 9, 1979, plaintiff had full unrestricted motion of her right knee, but was still experiencing weakness in both knees. Further exercise was recommended to build strength in both knees. On February 14, 1979, Dr. Kilroy wrote that plaintiff could return to work so long as she did no excessive climbing or kneeling.

On October 29, 1979, Dr. Kilroy found that plaintiff had no grinding in either knee, but that she had weakness in both legs. He was of the opinion that it was obvious that plaintiff had not been doing her exercises. He felt that, if she started the exercises, she could be at maximum strength within three weeks, and that she could do anything she desired, except excessive kneeling.

This case was first tried on November 15, 1979, and the matter submitted. Prior to decision, however, plaintiff had further difficulty, and the matter was re-opened.

The record shows that in December 1979, plaintiff developed a neuroma, as a result of her surgery. This was removed surgically on January 22, 1980. Plaintiff developed phlebitis from the surgery, which was cleared up. Another operation for surgical closure of her scars was performed, and plaintiff thereafter developed suture abscesses. By February 27, 1980, plaintiff was once again able to resume therapy. Dr. Kilroy was of the opinion that, with exercise, she could regain maximum strength in two or three weeks. However, in August 1980, Dr. Kilroy found plaintiff’s legs still weak, due to her failure to exercise. He was of the opinion that she could return to work without limitation, except for excessive kneeling.

Mrs. Perry testified that she had always done her exercises, and that, despite this, her knees continued to be painful and to swell with use, and that her activities were limited thereby. She testified that she was still unable to perform some of her duties with United States Textures.

Mrs. Perry was paid compensation benefits from May 2,1978, through February 19, 1979, totally $4,085.00. Compensation payments were stopped based on Dr. Kilroy’s letter of February 14, 1979. - Further compensation of $1,805.00 was paid, covering the period from January 22 through June 2, 1980. Apparently, this amount was paid in a lump sum by check of August 12, 1980.

This suit was filed against United States Textures, Nieolon Corporation and Maryland Casualty Company, their insurer, for benefits for permanent total disability and for penalties and attorney’s fee. After trial on the merits, judgment was rendered, dismissing plaintiff’s case and she has appealed.

In this court, she urges that the judge erred in accepting the medical testimony and disregarding the lay testimony as to plaintiff’s disability. It is also argued that defendants should be condemned to pay penalties and attorney’s fees on the amount of $1,805.00, because the record reflects that it was paid long after plaintiff’s additional disability was known to defendants.

We have reviewed the record carefully and find no manifest error in the finding of the trial judge that plaintiff is due no further compensation. The medical evidence is unrebutted, and the trial judge’s evaluation as to credibility, and as to the effect to be given to the evidence is entitled to great weight.

As to the demand for penalties and attorney’s fees, we find that no written demand for compensation was made during or after the second period of disability, which happened after the original trial on the merits. The defendant did not refuse to pay either compensation or medical, so that there was only a passive failure to pay. Under those circumstances, written demand is necessary before penalties and attorney’s fees may be exacted. R.S. 22:658; Breaux v. Marine Elec. & Reliance Ins. Co., 369 So.2d 196 (La.App. 3rd Cir. 1979), writ denied 371 So.2d 1344 (La.1979).

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

AFFIRMED.

ON REHEARING

PER CURIAM.

We granted this rehearing to reconsider our holding that plaintiff is not entitled to penalties and attorney’s fees for an arbitrary failure to timely pay compensation following her second period of disability. In our original opinion we incorrectly stated that plaintiff was required to give written notice for compensation during the second period of disability. In fact, R.S. 22:658 requires payment within 60 days after receipt of satisfactory proof of loss. The record is clear that defendant Nicolon was aware of plaintiff’s disability. R.S. 22:658 further provides that failure to pay within 60 days after proof of loss and demand for payment, shall subject the employer to “12% damages on the total amount of the loss”, and reasonable attorney’s fees, for the prosecution and collection of such loss, if the failure to pay is arbitrary, capricious or without probable cause.

There is ample evidence in the record to show that defendant was aware of the second disability, and this lawsuit is certainly a sufficient demand. There is no reason why compensation should not have been recommenced immediately. The fact that payment thereof, in a lump sum, was voluntarily made after 60 days had elapsed, does not excuse the failure.

The judgment heretofore rendered is therefore amended, so that there will be judgment herein in favor of plaintiff and against defendants, for penalties in the amount of 12% of $1,805.00. Since the record reflects no action taken on the part of the attorney in connection with the collection of the above amount, which was voluntarily paid, an attorney’s fee will be awarded only in connection with the collection of the penalties herein awarded, for which we think a fee of $100.00 will be adequate. As amended, the judgment below is affirmed. All costs shall be equally shared by the plaintiff and defendants.

AMENDED AND AFFIRMED.


author: GARRISON, Judge. GULOTTA, Judge,

text:
    George FRANCO v. KAR PRODUCTS, INC.
    No. 12097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      William F. Wessel, Victoria Lennox Bar-tels, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews (Paul B. Deal and David S. Kelly), New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with a jury verdict granting damages in the amount of $95,000.00 plus interest and costs, as well as $30,000.00 in attorney’s fees, to plaintiff. Plaintiff sued on a written contract of employment as District Sales Manager with the defendant, Kar Products, Inc. From that judgment, which we affirm, defendant appeals.

Plaintiff’s suit alleged the following:

1. He was terminated without suitable cause, entitling him to 5% commission of all sales within Louisiana and Mississippi for 90 days after his discharge.

2. He had not received his 5% commission on all sales made within his territory during the term of the contract, as specified in the contract.

3. He had been charged $600.00 by the company to reimburse itself for money loaned to a Kar salesman.

4. He was charged 10% (5% return of his commission plus an additional 5%) when merchandise ordered by customers in his territory was not paid for, whereas the contract specified only that he would return the 5% commission.

He further claimed attorney’s fees, penalties and legal interest.

On appeal, defendant argues that the trier of fact erred in finding that plaintiff was terminated “without suitable cause,” that the jury’s award is excessive, and that the trial court abused its discretion in awarding $80,000.00 as attorney’s fees.

Kar Products argued that Franco was dismissed because of a sharp downturn in sales, personnel problems, personality problems and failure to adhere to company rules and regulations. Franco argued that the company was trying to split his territory because he was making “too much money.” Kar’s own witness, Bruce Stultz, admitted that Kar was trying to split Franco’s territory. Approximately six months prior to plaintiff’s termination, the company informed plaintiff that they wanted him to give up the North Louisiana part of his territory in return for a 2% commission for two to three years. As he was receiving a 5% commission on that territory at the time, plaintiff refused defendant’s offer. Bruce Stultz repeatedly warned plaintiff to accept the offer. This issue is essentially a credibility call by the trier of fact, the jury. We cannot conclude that the trier of fact was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Franco argued that the 5% commission on all sales within his territory meant all sales exclusive of George Williams’ sale prior to his retirement. Defendant argued that all sales meant all sales exclusive of those made by salesmen not hired on a salary basis, as well as sales by George Williams’ successor. The contract reads as follows:

“(a) A commission equal to five (5%) percent of the net sales on all merchandise sold by the Company and shipped to the States of Louisiana and Mississippi, with the exception of the accounts serviced by George Williams, as previously described hereinabove.” (emphasis supplied)

If Kar intended the interpretation which they argue, they could have easily changed the language “all merchandise sold by the Company" to language clearly expressing that intention. Likewise, Kar could have used the language “George Williams and/or his successors.” Ambiguities in a contract are construed against the party that wrote the contract; hence, these ambiguities were properly construed against Kar.

The question of the 10% or 5% charge-back for unpaid merchandise is likewise a question of contract interpretation. The contract provision reads as follows:

“Any merchandise not paid for by the customer will be charged back to the District Sales Manager on the same basis as the comission (sic) was originally paid.” (emphasis supplied)

While the language “on the same basis” could be subject to multiple interpretations, the burden was on Kar to write a clear and unambiguous contract. Victor E. Solsberry, former Vice-President of National Accounts (Sales) for Kar, testified that Franco should have been charged back 5% or not charged back at all. In light of the evidence presented, we cannot conclude that the trial court erred in finding that Kar Products overcharged plaintiff’s account. Canter v. Koehring Co., supra; Arceneaux v. Domingue, supra.

Turning to the issue of the $600.00 loan, the testimony indicates that it was the policy of Kar Products to make loans to their salesmen from time to time. Due to the erratic flow of income based on commissions, the salesmen’s earnings were a “feast or famine” situation. Accordingly, the company would occasionally make loans to salesmen to tide them through the “lean” months. In conjunction with this policy, it was required that the salesman’s supervisor review the loan request, ascertain and explain the necessity of the loan, and forward the request to the company. We agree with the trier of fact that Mr. Franco did not agree to become personally liable on the salesman’s debt by acting as a factual investigator on behalf of Kar. Mr. Franco acted like a bank or finance company clerk by accepting information which was then relayed to a higher authority where a loan decision was made. We note that no promissory note, loan agreement, or other legally binding evidence of indebtedness bearing Mr. Kar’s signature as a debtor was produced.

Kar further argues that the trier of fact clearly abused its discretion by awarding an excessive amount to plaintiff. Kar admits to damages in the amount of $48,804.80 and argues that $15,000.00 severance pay should be credited against that amount. Kar’s admission as to the amount of damages, however, fails to take into consideration other factors, such as his age and ability to gain new employment in light of the contractual restrictions on future employment. Upon review, this court is bound by the standards ennunciated in Coco v. Winston Industries, 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979); and Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). Only upon the appellate court’s independent review of the evidence and testimony presented, coupled with a determination that the lower court clearly abused its “much discretion,” may an appellate court pretermit the prior determination of quantum assessed by the trial court and then reexamine the question of quantum. In the instant appeal, we cannot conclude that a clear abuse of discretion has occurred.

Turning to the issue of severance pay, we can only conclude that in light of the jury’s verdict, the trier of fact meant for the amount awarded to be in addition to the $15,000.00 already paid by defendant. We cannot conclude that this is an erroneous determination because of plaintiff’s argument that the $15,000.00 was the causa (in common law consideration) for additional services rendered by the plaintiff.

Plaintiff introduced a letter from Kar signed by Bruce Stultz addressed to plaintiff and dated November 16, 1978. The November 16 letter confirms a handwritten note dated October 16 and signed by Stultz in which Stultz stated: “The severance pay is based on your efforts to help us with a smooth transition of the district personnel and sales.” The pertinent parts of the November 16 letter are as follows:

“(A) The payments by KAR PRODUCTS, INC. of the severance pay as scheduled above will be contingent on the following procedures being followed by you:
“(a) Your 100% cooperation in turning over the management control to KAR PRODUCTS, INC.
“(b) All equipment of KAR PRODUCTS, INC. returned to my office in Houston within two weeks.
“(c) All giveaways, promotion items, TV stamps supplied to you on the special pay plan of Buckmaster and Dubea and the RAMPCO situation and still in your possession are to be returned to me at my Houston office within the next two weeks.
“(d) You will comply with all provisions of your Kar District Manager’s contract, and in particular to the restrictive covenants therein contained.
“(e) You are to have no contact, either personal or by telephone, with any salesmen employed by KAR PRODUCTS, INC.
“Any violations of the above listed procedures will be taken as cause to discontinue your severance pay agreement.”

Plaintiff testified that Stultz wrote the October 16 note at plaintiff’s request and that plaintiff was to receive the $15,000.00 in return for “not caus(ing) any disturbance and not lead(ing) any of the other men to go with another company and . .. not tell(ing) the reason (for termination) to the other men. ‘As a matter of fact, George, I don’t even want you to talk to the men.’ ” (Tr. p. 135). Stultz testified that he included the monetary terms but not the reasons for the $15,000.00 payment in the October 16 letter. The letter reads as follows:

Having thus reviewed the evidence and testimony presented we cannot conclude that the jury was manifestly erroneous in concluding that the amount in question was compensation for additional services in the nature of insuring a smooth transition.Having so found, we cannot conclude that the jury clearly abused its discretion by failing to credit the $15,000.00 against the total amount awarded.

The last issue presented on appeal is the question of attorney’s fees. Both parties stipulated that Illinois law would control the question of attorney’s fees and that the issue of attorney’s fees would be tried solely by the judge instead of by the jury. Neither party, however, stipulated that plaintiff was entitled to attorney’s fees. After examining the issue the trial judge granted attorney’s fees in the amount of $30,000.00.

The Illinois statute allowing attorney’s fees (also called the Attorneys and Counselors Act) provides as follows:

“Whenever a mechanic, artisan, miner, laborer, servant or employee brings suit for wages earned and due and owing according to the terms of the employment, and establishes by the decision of the court or jury that the amount for which he has brought suit is justly due and owing, and that a demand was made in writing at least 3 days before suit was brought, for a sum not exceeding the amount so found due and owing, then the court shall allow to the plaintiff a reasonable attorney fee of not less than $10, in addition to the amount found due and owing for wages, to be taxed as costs of suit.” Ill.Rev.Stat., 1977, Ch. 13, § 13. (emphasis added)

Defendant-appellant argues that plaintiff is not an “employee” under the act and that the demand letter dated February 8, 1979, made demand for an amount in excess of that found due and owing. For the proposition that plaintiff is not an employee, defendant cites an 1894 case, Standard Fashion Co. v. Blake, 51 Ill.App. 233 (1894) and a 1935 case, Buren v. Mercury Press, Inc., 280 Ill.App. 217 (1935). Both cases found that salesmen were not employees. The most recent case on point is Reiss v. El Bauer Chevrolet Co., 96 Ill.App.2d 266, 238 N.E.2d 619 (4th District, 1968). In Reiss several automobile salesmen sued to recover an annual bonus based on their prior year’s sales. The court in Reiss specifically found that salesmen are employees under the Act and are entitled to recover attorney’s fees. While defendant is at liberty to argue that Reiss was poorly or erroneously decided, nonetheless it has not been overruled by the Illinois courts and stands as the most recent and definitive treatment of the question. In applying Illinois law, this court is in agreement with the trial judge’s ruling that salesmen are employees under the Act. .

Turning to the issue of the demand letter, we note that the letter (P-6) reads as follows:

“Dear Sirs:
“This is to advise you that I represent Mr. George Franco in connection with his employment agreement with you of November 28, 1973.
“In violation of that agreement you have failed to remit to Mr. George Franco the commissions due to him for which he was entitled during the course of his employment, on sales made in his territory by salesmen from outside of his territory, particularly from the Arkansas, Tennessee and Texas territories.
“We are herewith requesting from you a print out of all sales made to all businesses in the State of Louisiana and Mississippi from November 28,1973, through February 1, 1979.
“In addition you have terminated Mr. Franco without cause and have failed to remit to him his commission that was due and is still due under the employment contract for the three month period succeeding the termination.
“In addition during the course of Mr. Franco’s employment numerous salesmen were put on the pay plan calling for basic salary plus commission and during the periods of which the pay plans were in existence for the various salesmen the 5% commission due to Mr. Franco as district manager was not paid to him by you. “During the course of his employment also in instances where customers have defaulted on the payment of their account instead of charging back 5% commission you have seen fit to illegally charge him back 10% commission.
“Finally, in 1978, you charged Mr. Franco the sum of $600.00 for a bad loan made by the company to Mr. Frank Lovette for which we are hereby requesting reimbursement.
“It is also our understanding the law of Illinois provides for attorney fees for your breach of this employment contract. “We are herewith putting you on demand to pay our damages which we estimate to be $175,000.00 and we are herewith requesting also that you furnish to us an accounting of the commissions that Mr. Franco was entitled to during the course of his employment and for the 90 days after his termination as well as the other matters referred to herein.
“If we do not hear from you in response to this letter within 10 days we will proceed to file suit to recover all losses.”

As shown by the above, the letter at issue clearly sought to notify defendant of the possibility of future legal action and states on several occasions that the figure is only an estimated amount, as the true figure is ascertainable only from records in the defendant’s possession. While in most cases the amount at issue would be the most easily ascertainable fact, in a case such as this, where the amount at issue lies at the very heart of the suit, it would be unreasonable to require the plaintiff to “consult a crystal ball” for an amount. It is obvious that the intent of the statute is to compel the disclosure of the true amount due, but consider the case where the true amount due is unknown. It is an elementary rule of statutory construction that where two interpretations of a statute are available, one which is an unreasonable derogation of the intent of the statute and one which reasonably upholds the intent of the statute, the court is bound to uphold the intent of the statute by applying the latter interpretation. Having so concluded, we find that the trial judge did not commit an error of law in awarding attorney’s fees to plaintiff.

Lastly, defendant argues that the trial judge clearly abused his discretion in the amount awarded. We do not agree. The trial judge devoted four pages of the transcript to his oral reasons for the attorney's fees award. In so doing, he touched upon every element examined by a court in awarding attorney’s fees:

“(1) the ultimate result obtained; (2) responsibility incurred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts and law involved; (9) the diligence and skill of counsel; (10) the court’s own knowledge; and (11) the ability of the party liable to pay.”

Guillory v. Guillory, 339 So.2d 529 (La.App. 4th Cir., 1976).

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

GULOTTA, J., concurs.

GULOTTA, Judge,

concurring.

Although I am of the opinion that attorney’s fee awarded is high, I concur in the result.

      . Defendant also cites Lites v. Jackson, 70 Ill.App.3d 370, 26 Ill.Dec. 288, 387 N.E.2d 1118 (1st District, 1979). In Lites the First District found that the Clerk of the Village of Maywood, an elected public offícial, was not an employee. We find that Lites has no bearing on the question of a salesman.


author: CHEHARDY, Judge.

text:
    Judith S. GOLDSTEIN, a/k/a Judith S. Schniebolk v. Barry J. GOLDSTEIN.
    No. 12203.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    See also La.App., 409 So.2d 1250.
    Shushan, Meyer, Jackson, McPherson & Herzog, Donald A. Meyer and Bradley M. Smolkin, New Orleans, John M. Mamoul-ides, Dist. Atty., Parish of Jefferson, William C. Credo, III, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Barry J. Goldstein, appeals a district court decision in favor of plaintiff, Judith S. Goldstein, and against the defendant, recognizing and granting full faith and credit to a judgment of March 6, 1979, rendered by the Circuit Court in and for Montgomery County, State of Maryland, in favor of plaintiff and against the defendant in the sum of $4,002, together with all costs of both the Maryland and the Louisiana proceedings, plus legal interest on all amounts due from March 6, 1979 until paid.

A copy of the March 6, 1979 Maryland judgment was introduced at the trial on the merits of the present case. It states:

“Upon consideration of Petitioner Judith S. Goldstein, a/k/a Judith S. Schnie-bolk’s Petition for Contempt; testimony from Petitioner that Respondent Barry Jay Goldstein is presently under Court Order to provide $630 per month child support; that there is an arrearage through February, 1979, of $3,355; the Court taking judicial notice of the parties’ divorce decree dated May 13, 1974, this Court’s Order of June 7, 1977, and this Court’s Memorandum and Order of April 28, 1978; and the Court noting that although Respondent Barry Jay Goldstein was personally served on January 16, 1979, with a copy of Petitioner’s Petition for Contempt and Show Cause Order, Respondent Barry Jay Goldstein did not personally appear in Court, nor did counsel appear in his behalf; it is by the Circuit Court for Montgomery County, Maryland, Sitting as a Court of Equity, this 6th day of March, 1979,
ORDERED, that Respondent Barry Jay Goldstein be, and hereby is, found to be in contempt of this Court’s Orders of May 13, 1974, June 7, 1977, and April 28, 1978, and the Court shall further suspend imposition of any penalties at this time; and it is further
ORDERED, that judgment in the amount of $3355 be entered against Barry Jay Goldstein, as and for arrearages of child support; and it is further
ORDERED, that judgment in the amount of $647 be entered against Respondent Barry Jay Goldstein as and for reasonable attorneys’ fees on behalf of the parties’ minor children; and it is further
ORDERED, that costs for this action be assessed against the Respondent Barry Jay Goldstein; and it is further
ORDERED, that the present support payments of $630 per month shall continue until further Order of this Court and shall be paid directly to the Family Services Office in the Circuit Court for Montgomery County, Maryland.”

Defendant now argues on appeal that the district court erred in overruling the exceptions to the Maryland court’s jurisdiction, in overruling the exception of res judicata, and in forcing the case to trial in the court’s summer session.

The defendant avers that the court should consider his plea of res judicata because contemporaneously with the Maryland divorce proceedings the plaintiff wife had instituted a URESA proceeding which on May 18, 1978 had resulted in a judgment in the Juvenile Court, Parish of Jefferson, State of Louisiana, condemning the defendant to pay the plaintiff child support of $250 per month. The defendant also testified at trial that he had made the payments regularly on that judgment ever since it was entered. However, in Moreau v. Falgout, 304 So.2d 429 (La.App. 1st Cir. 1974), the court said at 431:

“It is defendant’s principal contention here that the judgments of the court in Alaska (URESA), originally in the sum of $175.00 per month and later reduced to $140.00 per month, had the effect of modifying previous judgments of the 16th Judicial District Court for St. Mary Parish which provided for payments of $220.00 per month from October, 1962, until September of 1964, when it was reduced to $195.00. This contention is without merit. The courts of this state have always been open to the defendant to seek a modification of its decree by proper procedure. Defendant did not elect to do this. In Davis v. Contorno, 234 So.2d 470 (1st La.App.1970), we held that L.R.S. 13:1643 ‘. .. provides that the remedies available under URESA are in addition to and not in substitution of any other remedies.’ 234 So.2d 470, 473.”

Although defendant can, therefore, claim credit for the amounts paid under URESA prior to the Maryland judgment for arrearages, he cannot urge that a judgment rendered pursuant to the URESA procedure modifies a previous judgment of another court.

Neither can this court agree with defendant’s argument that the Maryland court did not have jurisdiction over him at the time the March 6, 1979 judgment was rendered and, therefore, the Louisiana district court should not have given full faith and credit to that judgment. Mr. Goldstein testified he moved from Maryland in July of 1977. He said, in regard to the subject Maryland judgment, he had been served with papers in connection with the action in January of 1979 at his address in Louisiana. He said that although he was advised by an attorney to ignore the Maryland proceedings, he did write a letter to the clerk of eourt in Maryland sending him a copy of the URE-SA Louisiana judgment.

In the case of Webb v. Webb, 357 So.2d 1288 (La.App. 3d Cir. 1978), the court stated it has long been established that in order for a court to render an award of alimony for a wife or child, it is necessary that there be jurisdiction over the person from whom alimony is due, usually the father and former husband, because this involves a monetary judgment. The court also said at 1290-1291:

“It is basic law that once the jurisdiction of a court attaches in a controversy, jurisdiction is maintained throughout the proceedings and cannot be defeated by removal of the person beyond the jurisdiction of the eourt. As the Supreme Court stated in Imperial v. Hardy, [302 So.2d 5 (La.)] supra:
‘When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the State to bind him by every subsequent order in the cause. Mr. Justice Holmes called this rule “one of the decencies of civilization that no one would dispute.” Michigan Trust v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1912). It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction. Under such a rule a litigant who had availed himself of the court’s jurisdiction at the inception of the case could avoid the entry of judgment against him by the simple expedient of withdrawing from the State.’ [Citation omitted]
“It is on this basis that Louisiana courts have recognized the concept of continuing jurisdiction in child support and alimony matters where an increase or modification of the award is desired against the nonresident defendant. Under this theory, a court having jurisdiction to grant such an award retains jurisdiction over the nonresident defendant to modify the award or to enter an award for arrearages. E.g., Imperial v. Hardy, supra; Heaton v. Garvin, 314 So.2d 363 (La.App. 3rd Cir. 1975); Anthony v. Anthony, 288 So.2d 694 (La.App. 4th Cir. 1974); Dupre v. Guillory, 216 So.2d 327 (La.App. 3rd Cir. 1968).” (Emphasis ours.)

The jurisprudence of the State of Maryland in regard to this issue was similarly enunciated in Glading v. Furman, 282 Md. 200, 383 A.2d 398, 402-403 (1978):

“ ‘Jurisdiction having been retained, in accordance with the terms of the agreement, for the purpose of determining the amount to be paid, the defendant could not deprive the Court of its jurisdiction by leaving the State.’ [McSherry v. McSherry] 113 Md. 395 at 401, 77 A. 653 at 655. A like result was attained under analogous circumstances in Tvardek v. Tvardek, 257 Md. 88, 261 A.2d 762 (1970), where the subsequent petition sought modification of a prior child support award contained in a divorce decree.
* S(S * * * *
“Clearly, under § 3-602(a), the circuit court was competent to modify the prior divorce decree, by entering a subsequent order for child support, the same as if that earlier decree had explicitly provided for child support in the first instance. The net result of the statute, then, was to incorporate by implication into the 1972 divorce decree a provision reserving power to modify it as effectively as if such a reservation had been originally inserted by the court. See Tvardek v. Tvardek, 257 Md. at 97, 261 A.2d 762. As a consequence, appellee’s 1976 petition for child support is properly viewed as a modification of the earlier divorce decree rather than the commencement of a new and independent proceeding. Thus, for purposes of the continuing jurisdiction doctrine, the petition here clearly arose out of the original divorce suit.
“Application of the continuing jurisdiction rule, as we indicated earlier, imposes a requirement that the nonresident defendant, over whom personal jurisdiction has been initially obtained, be given reasonable notice and opportunity to be .heard in each subsequent proceeding if an in personam decree is to be rendered against him. In McSherry and Tvardek, we held that the requirement of notice and opportunity had been met by service of the papers on the defendant’s Maryland counsel. But see Maryland Rule 125e. Here, appellant was personally served by a deputy sheriff in the State of Virginia and does not deny receiving actual notice of the support petition. Nor could he contend, consequently, that he was not afforded ample opportunity to be heard.
“We hold, therefore, that since the petition for child support arose out of the original divorce suit and since appellant was given reasonable notice and reasonable opportunity to be heard, the circuit court retained continuing in personam jurisdiction over him for purposes of rendering a binding support order.”

The court also said in Anthony v. Anthony, 288 So.2d 694, 696-697 (La.App. 4th Cir. 1974), regarding the necessity for personal service on a defendant or attachment of his property in an action to have past due alimony made executory:

“We find only one reported decision in which this question was presented, Smith v. Smith, 257 So.2d 446 (La.App. 1st Cir. 1972). There the court treated such an action to make past due alimony executo-ry as an attempt to obtain a money judgment and held that personal service or attachment of defendant’s property was necessary under LSA-C.C.P. Arts. 6 and 9. That Court rejected the theory that the action to make past due alimony ex-ecutory was incidental to the original divorce proceedings and affirmed The Family Court’s maintenance of an exception to the jurisdiction over the person of the non-resident defendant.
“We do not adhere to those views and find that the case of Williams v. Williams, 211 La. 939, 31 So.2d 170, is dispositive of the issue in this case. There the Court said:
‘Counsel are mistaken in their conception of the nature of the proceeding taken by Mrs. Williams. She was not attempting to obtain a monied judgment — that judgment, i.e., for alimony, was already in existence, having been rendered as an incident to the divorce proceeding. The use of the rule to make the delinquent payments executory was conformable to a method of practice which has been sanctioned by our courts in numerous cases. See Snow v. Snow, 188 La. 660, 177 So. 793 (where all of the prior jurisprudence on this question is reviewed); Cotton v. Wright, 193 La. 520, 190 So. 665, and the recent case of Erdal v. Erdal, La.App., 26 So.2d 377, where a similar question was raised by the defendant husband.
‘The rationale of the above cited authorities is that, since a judgment for alimony is payable at fixed periods, it may be difficult, in cases where the husband has failed to discharge his full duty and has made irregular payments, to determine the exact amount for which a writ of fieri facias may be issued. Hence, the court has indicated that a rule, similar to the one in the instant case, is proper in order that the delinquent payments may be computed into a lump sum as a guide to the Clerk and as a basis upon which execution can be issued.’
“Thus, the Supreme Court firmly rejected the idea that the judgment making past due alimony executory is a money judgment and treated the action as a procedural remedy for the wife to accomplish execution of her original judgment.”

In regard to the sufficiency of service of process upon the attorney of record in such a case as the present one, the court also stated in Webb, supra (wherein the husband’s attorney of record was served and then withdrew as counsel):

“With regard to service of process, the Supreme Court stated:
‘Sufficiency of the service of process on the husband’s counsel of record depends on whether the court has jurisdiction over the person of the husband. If the court does have jurisdiction, the service here was proper under Articles 1312,1313 and 1314 of the Code of Civil Procedure which permits the service of every pleading subsequent to the original petition by delivering a copy thereof to the adverse party, or to his counsel of record.’ [Citations omitted]
“We feel, as did the Supreme Court in Imperial, that if the court had jurisdiction over the defendant, service upon his counsel of record was proper. * * * ” 357 So.2d at 1290.

In the present case the Maryland record reflects that the action to make the support judgment executory was ordered served upon the defendant’s counsel of record. Mr. Goldstein also testified that the papers regarding that action were delivered personally to him in Louisiana. In view of the holding of Webb, supra; and Glading, supra; and Anthony, supra, therefore, service of process was sufficient.

Furthermore, in the Louisiana action in the district court plaintiff followed the proper procedure for execution of a foreign judgment, as required by LSA-C.C.P. art. 2541, by bringing an ordinary proceeding against the defendant and annexing a copy of the Maryland decree to the petition.

Although this court is aware that Louisiana courts have the right, if not the duty, to inquire into jurisdictional facts surrounding a judgment of a sister state (Austin v. Austin, 192 So.2d 890 [La.App. 2d Cir. 1966]), we agree with the district court judge that nothing in the record of the present case relieves the Louisiana courts of the requirements of the full faith and credit clause of the United States Constitution.

Rule II of the rules of the Twenty-fourth Judicial District Court in and for the Parish of Jefferson contains the following provisions:

“Section 1. Court shall be in continuous session throughout the year. There shall be two terms. The first term shall commence on the first judicial day of September of each year and end on the last judicial day of June of each year. The second term shall commence on the first judicial day of July of each year and end on the last judicial day of August of each year.
“Section 2. During the second term of court, the Judges will hear confirmation of defaults and curator cases, injunctions, Rule for alimony, child support and custody, possession of premises, collection of taxes, judgment debtor, to compel answers to interrogatories, civil habeas corpus and mandamus proceedings. Other matters which necessarily require an emergency hearing will also be set and heard but only with the special consent of the judge setting matters for trial, after a full explanation.
“Motions for summary judgment, exceptions, motions for new trials and cases on the merits will also be heard during the second term with the consent of the attorney for each litigant and the judge involved.” (Emphasis ours.)

Since the court is granted authority to render judgments fixing alimony and child support during the second session, it would be illogical to conclude that the court is not also empowered to enter judgments making arrearages for child support and alimony executory.

For the reasons assigned, therefore, the district court decision is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Judith SCHNIEBOLK v. Barry Jay GOLDSTEIN.
    No. 12204.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    See also La.App., 409 So.2d 1245.
    Donald A. Meyer, Bradley M. Smolkin, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for plaintiff-appellee.
    Gibson Tucker, Jr., Tucker & Schonekas, New Orleans, for defendant-appellant.
    Janet D. Webb, William C. Credo, Asst. Dist. Attys., Gretna, for Dist. Atty’s. office.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On May 13,1974, plaintiff, Judith Schnie-bolk (hereafter wife) was divorced from the defendant, Barry Jay Goldstein (hereafter husband), by a Maryland Court. In the divorce judgment, the child support payment was set at $600.00 per month. Some three years thereafter, when the husband became delinquent in the payments, the wife initiated a URESA action in Maryland which was subsequently sent to Orleans Parish and then to the Juvenile Court in and for Jefferson Parish, as the responding court. After the transfer to the Jefferson court, the husband submitted himself to the Maryland jurisdiction and paid the ar-rearage on the support charge. The Maryland court dismissed the Maryland URESA action and the Maryland District Attorney’s office requested Jefferson Parish authorities to dismiss the URESA action. However, before receiving notice of this, the Jefferson Parish Juvenile Judge rendered a support judgment against the husband of $250.00 per month, effective June 3, 1978. Apparently, after receipt of the request by the Maryland authorities to dismiss the URESA action, on August 16,1978 a judgment signed by a Jefferson Parish Juvenile Judge ad hoc providing as follows was rendered:

“IT IS ORDERED, ADJUDGED AND DECREED that this matter be and the same is hereby dismissed . . . [because there] . . . was no finding of guilt or innocence with respect to the defendant. The defendant will pay the full sum of $250.00 plus court costs per month commencing on the third day of June, 1978 and medical expenses covered by defendant policy of insurance.
JUDGMENT READ, RENDERED AND SIGNED on this 16th day of August, 1978.”

Apparently, as a result of this judgment, the jacket of the record was stamped to indicate the suit had been dismissed and the case filed with the inactive records. Some eighteen months later, however, by a judgment rendered on February 15, 1980, the support award was reduced to $175.00 per month. There is no explanation in the record as to the basis or reason for the reduction or the issuance of the February 15, 1980 judgment. Each time a judgment was rendered, there appears in the record a signed judgment on a regular printed URE-SA from and a separate typewritten judgment worded differently, but both signed by a Jefferson Parish Juvenile Judge.

On June 9, 1980, the wife filed a summary motion to have the judgment of February 15, 1980 vacated or declared a nullity. In response, an exception to the use of a summary proceeding was filed by the defendant husband. After a hearing, the trial judge, by order dated October 1, 1980, vacated the original judgment of August 16, 1978 and the subsequent judgment of February 15,1980 because they were entered as the result of a clerical error and dismissed the case based on its finding that the case should have been dismissed in its entirety when the State of Maryland, on June 14, 1978, requested Jefferson to dismiss the URESA action. The defendant husband appealed.

The judgment of August 16, 1978 above quoted actually dismissed the entire case. Therefore, all of the subsequent actions taken in the ease were taken in a dismissed suit and of no force and effect.

The trial judge cited as his authority for vacating the judgments and dismissing the URESA action Article 1671 of the Code of Civil Procedure. The appellee admits no such authority is granted by Article 1671, but points to Article 2002(3) of the Code of Civil Procedure as supporting authority for the trial judge’s order of October 1, 1980. This article provides that “. . . a final judgment shall be annulled if it is rendered: ... (3) by a court which does not have jurisdiction over the subject matter of the suit.” Since a judgment rendered by a court without subject matter jurisdiction is an absolute nullity, it may be set aside at any time. Key v. Salley, 51 So.2d 390, 218 La. 922 (1951). Furthermore, the jurisdiction of the court over the subject matter of an action or proceeding cannot be conferred by the consent of the parties. (Article 3 of the Code of Civil Procedure.)

Here, once the Maryland court acquired jurisdiction over the separation and divorce proceeding, it continued to have jurisdiction over all matters incidental thereto, including alimony and child support. Anthony v. Anthony, 288 So.2d 694 (5th Cir. 1974). The State of Maryland then enlisted the aid of the State of Louisiana under URESA to aid in the enforcement of the jurisdiction of the Maryland divorce court. When the State of Maryland, the state with the initial jurisdiction and the initiator of the URESA action, dismissed the URESA action and requested the State of Louisiana, the responding state, to do the same, the Jefferson Parish Court no longer had subject matter jurisdiction of the URESA action. In the absence of any subject matter jurisdiction, the subsequent actions of the Parish of Jefferson, i.e., making an alimony award, were an absolute nullity. The husband does not sustain any undue hardship nor is he financially prejudiced for the support payments made under the judgments because he can apply such payments as credits against the support order of the Maryland court. Moreau v. Falgout, 304 So.2d 429 (1st Cir. 1979). Accordingly, the trial court order annulling and setting aside its two prior judgments and dismissing the URESA action is affirmed. Each party to bear his own costs of appeal.

AFFIRMED.

      . Uniform Reciprocal Enforcement Support Act. The Maryland Statute is in Article 89C, Annotated Code of Maryland (1957). The comparable Louisiana Statute is in R.S. 13:1641 et seq.

      . There is a copy of the Maryland motion and order dismissing the URESA action filed in the record.


author: MARVIN, Judge.

text:
    Henry James MILLER, et ux., Plaintiffs-Appellants, v. R. F. LOWRY, et al., Defendants-Appellees.
    No. 14738.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley, by Harry A. Johnson, Jr., Shreveport, for R. F. Lowry, Mary A. Romanos and State Farm.
    Wilkinson & Carmody by Arthur R. Car-mody, Shreveport, for Insured Lloyds.

      Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff appeals a judgment rejecting her demands for damages arising out of the daylight collision in 1976 between her automobile (a two-door Chevrolet Nova) and the automobile of defendant (a Toyota Célica) in a Shreveport intersection controlled by a traffic signal light. We affirm.

Plaintiff’s version of the accident was that she was proceeding easterly in the northernmost eastbound lane of Stoner, a four-lane street, and that she was faced with a green light when the defendant, proceeding southerly on Fairfield in the westernmost southbound lane, collided the front of her vehicle with the door and left side of plaintiff’s vehicle in the intersection.

Defendant’s version is that she stopped her vehicle at the red light, waited some 15 seconds and proceeded forward after the light facing her turned green and that plaintiff’s vehicle drove in front of her when she was in the intersection.

When a green signal is exhibited to traffic, that traffic may proceed but is required to yield the right-of-way to other vehicles lawfully within the intersection at the time the green signal is exhibited. LRS 32:232(1)(a). Plaintiff’s contention essentially is that defendant had a red light, but that even if defendant had a green light, defendant should have yielded to plaintiff, who was lawfully in the intersection at the time. Plaintiff contends that the trial court erred in holding that plaintiff did not prove her case by a preponderance of the evidence.

As between drivers of colliding vehicles, there is no presumption of negligence. The plaintiff driver has the burden of proof. See Crier v. Marquette Casualty Company, 159 So.2d 26 (La.App. 4th Cir. 1963), writ refused. Compare the situation of a guest passenger. Parker v. Travelers Ins. Co., 369 So.2d 1120 (La.App. 1st Cir. 1979), writ denied.

Here the only testimony came from the two drivers who each claim to have been proceeding on a green light. The speed of the two vehicles was not estimated by these witnesses. The width of the intersecting streets was not shown. The timing and the sequence of the traffic signal was not shown. The position of the vehicles after the accident was not shown and the point of impact in the intersection was not estimated or shown.

Where the testimony is irreconcilable and the court does not suspect the credibility of either witness, physical evidence may be considered as controlling in determining the negligence issue in traffic accident cases. Hue v. Blanchard, 337 So.2d 1218 (La.App. 1st Cir. 1976) Where, as here, there is no significant physical evidence presented, the court must find that the proponent has failed to bear the burden of proving negligence by a preponderance of the evidence. Williams v. Bulk Transport, Inc., 266 So.2d 472 (La.App. 4th Cir. 1972). See also Diaz v. Breaux, 252 So.2d 697 (La.App. 1st Cir. 1971).

From this record, one can find only that plaintiff’s vehicle, proceeding easterly in the southernmost eastbound lane of Stoner, was struck at and behind the left front door by defendant’s vehicle that was proceeding, from a stopped position, southerly in the westernmost southbound lane of Fairfield. We cannot deduce from the scant physical facts which driver had the green light, or for that matter, the red light, or perhaps a yellow light. We cannot deduce what the signal light was showing to whom or where either vehicle was at any given time with respect to the light and to the other vehicle.

The record supports the conclusion that plaintiff did not prove by a preponderance of the evidence that she had the green light while defendant had the red light or that plaintiff was lawfully in the intersection if or when the light facing defendant turned green.

At appellant’s cost, the judgment is AFFIRMED.


author: FRED W. JONES, Judge.

text:
    Alton Lee LITTON, Plaintiff-Appellant, v. Fai R. LEWIS, Defendant-Appellee. Fai R. LEWIS, Plaintiff-Appellee, v. Alton Lee LITTON, Defendant-Appellant.
    Nos. 14740, 14741.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Herman L. Lawson, Mansfield, for plaintiff-defendant-appellant, Alton Lee Litton.
    Smith & Bowers, by Glen H. Smith, Shreveport, for plaintiff-defendant-appel-lee, Fai R. Lewis.
    Before PRICE, HALL and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

The father of a 13 year old girl, whose mother had died, appeals a trial court judgment in these consolidated cases awarding legal custody to the child’s maternal grandmother. We affirm.

Alton Lee Litton and Loy Faye Lewis Litton were married in 1957 and established their matrimonial domicile in DeSoto Parish. Their first child, Lisa Faye, was born about three years thereafter. Some time in the early 1960’s Mrs. Litton began to suffer increasingly from the adverse effects of multiple sclerosis, a progressively debilitating disease with which she was afflicted. Consequently, at the request of the Littons, Fai R. Lewis, Mrs. Litton’s mother, moved in to assist with household duties and to help care for Mrs. Litton. By 1966 Mrs. Litton could no longer walk.

Heather Lorraine, the other child of the marriage, was born about two years after her mother ceased being ambulatory. From birth this child was cared for primarily by her maternal grandmother.

Because of marital difficulties the Littons physically separated in October 1971. Mrs. Litton, along with her mother and two children, left the matrimonial domicile in rural DeSoto Parish and established a residence in Mansfield, several miles away. In December 1971 Mrs. Litton was granted a judgment of separation in which her custody of the two girls (previously awarded pendente lite in a summary proceeding) was confirmed. Lisa was then 11 years of age and Heather was two. Because of Mrs. Litton’s increasing physical infirmities, Mrs. Lewis not only ministered to the needs of her daughter on a daily basis but also cared for the two children.

Mrs. Litton was granted a divorce from her husband in April 1973 and was awarded the permanent custody of- the two children born of the marriage. Litton remarried after the divorce. His new spouse had four children who lived with her and Litton. Thereafter, Mrs. Loy Faye Litton and her former husband found it necessary to litigate differences which arose over child support payments and child visitation rights.

During the ensuing years Loy Faye Litton and the two girls continued to live with Mrs. Lewis in Mansfield. Mrs. Litton’s continually declining health required that her mother assume an expanding role as surrogate mother of the children. Pursuant to court order, Litton paid $200 per month alimony for the support of his former wife and $380 per month for the support of his two daughters.

Loy Faye Litton died in October 1980. Thereafter, Litton sent to Mrs. Lewis $180 per month for the support of Heather, asserting that his obligation to support Lisa ceased because she had reached the age of majority. Both girls continued living with their grandmother.

On April 20, 1981 Litton petitioned for a writ of habeas corpus, asking for the permanent custody of Heather (then 13 years of age) who was alleged to be in the physical custody of Mrs. Lewis. On the same day, Mrs. Lewis filed suit against Litton for legal custody of Heather and for child support. The two proceedings were consolidated for trial, which was held on April 23, 1981.

In oral reasons for judgment the trial judge concluded that Litton’s “demonstrated lack of interest” in Heather warranted a finding that the father had forfeited his right to the child’s custody. Consequently, permanent custody of Heather was granted to the maternal grandmother, Mrs. Lewis, who was also awarded a judgment against Litton for child support in the sum of $230.30 per month.

The appellant-father contends that the trial judge erred in finding that he had forfeited his right to Heather’s custody. Mrs. Lewis answered the appeal, requesting an increase in the child support award.

The law which applies in a child custody dispute between a parent and a nonparent is well established. The parent’s right to custody is superior unless it is proved by the nonparent that the parent is unfit, or is unable to provide a home for the child, or has forfeited parental rights. Deville v. LaGrange, 388 So.2d 696 (La.1980); Wood v. Beard, 290 So.2d 675 (La.1974).

In this case, since there was no evidence that Litton was either unfit or unable to provide a home for Heather, the primary issue posed on appeal is whether the record supports the trial court’s determination that Litton forfeited his parental right to the child’s custody.

Upon appellate review the determination of the trial judge in child custody matters is entitled to great weight. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir. 1979), writ refused; Cawthorne v. Williams, 313 So.2d 915 (La.App. 2d Cir. 1975). However, as we pointed out in Burt v. McKee, 384 So.2d 489 (La.App. 2d Cir. 1980), “forfeiture of custody must be expressly determined and well-supported.”

In Wilson v. Wilson, 307 So.2d 674 (La.App. 2d Cir. 1975), we reversed a district court judgment denying a father’s request to change custody of children from their maternal grandparents, with this holding:

“There is no showing of any intent on the part of plaintiff to have abandoned the children to the grandparents. Although he was wrong in not furnishing financial support during the period from November of 1972 through the date of trial, we do not consider this factor standing alone to be sufficient to deprive him of his natural right to custody of his children.”

A lower court’s denial of the father’s attempt to change child custody from the maternal grandmother was also reversed in Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981), based upon the appellate court’s conclusion that there was no evidence in the record indicating either unfitness of the father or a forfeiture of parental rights. With respect to the latter factor it was noted that the child spent a great deal of time with the father and his new family and had a good relationship with them. There was also evidence that the father had seen to the child’s medical needs during the years she lived with her grandmother.

On the other hand, forfeiture of parental rights was found in State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958), where the parents permitted their daughter to live for nine years with her aunt and uncle, who reared the child as their own.

In Paul v. Cloud, supra, a mother was granted a divorce and awarded child custody. Subsequently, while living with the child at the home of her mother, the child’s mother died. By will the decedent had named her brother as the child’s tutor. In a contest between the father and the uncle (named tutor in the will) for the child’s custody, the appellate court affirmed a trial court judgment in favor of the uncle, commenting:

“The evidence reveals that aside from two or three visits when Jason was an infant and one visit just prior to Wanda Paul’s death, Mr. Paul has never in eleven years indicated any particular interest in his son. . . .
“While we are unwilling to say that Mr. Paul has abandoned Jason or that he has forfeited the preferential right to custody which the law accords a parent, we do believe that at this time Jason and his father are virtual strangers to each other.”

In a concurring opinion, Judge Domen-geaux construed the father’s conduct as “tantamount to an abandonment,” resulting in a forfeiture of any preferential rights to custody which the law accorded him as a parent.

In the case at bar it was established that, over the ten year period Heather lived with her mother and grandmother in Mansfield, Litton never made a concerted effort to visit with his child on any systematic basis, either at the grandmother’s residence or at his residence in the same parish. To the contrary, the thrust of Litton’s testimony was that he left up to the child the initiative for making contacts or visits. He rationalized this by explaining that “she was welcome to call my house or come any time she wanted to.” Obviously, it was both unrealistic and unfair for a father to place upon a young child the onus of maintaining a personal relationship with him, particularly in view of the father’s “second family” and the awkwardness inherent in that situation.

Prior to the trial in April 1981, the last contact Heather had with her father was the previous September. There was evidence that during this time she had attempted to reach Litton by telephone at his home, but gave up after three unsuccessful attempts.

Litton never gave Heather a birthday present, conceding that he did not even know her birthday. During her lifetime he gave the child only two Christmas presents.

There was no evidence that Mrs. Lewis in any way sought to prevent Litton from visiting with Heather or discouraged the child from contacting her father.

Although Litton did, pursuant to court order, provide for Heather’s financial support, this was apparently the primary extent of his expression of concern for the child’s wellbeing. Obviously, a father’s obligation to his child encompasses far more than the mere duty to furnish financial support.

In summary, we glean from the record the picture of a father who, rather than even purporting to assume an active role in maintaining a close relationship with his young daughter over the years and providing her with the emotional support and expressions of parental concern normally expected of a father, for some ten years exhibited a studied indifference to and disinterest in his daughter’s welfare. Consequently, the trial judge’s determination that Litton’s “demonstrated lack of interest” in Heather resulted in a forfeiture of his priority right as a parent to her custody is amply supported by the record.

Having made this finding, we experience no difficulty in agreeing with the trial judge that Heather’s best interest will be served by placing her in the legal custody of the maternal grandmother, Mrs. Lewis. After all, Mrs. Lewis has been the child’s surrogate mother for most of the child’s life and Litton has raised no serious question concerning the grandmother’s ability to properly care for Heather.

The appellee, in answering the appeal, argues that the monthly child support award of $230.30 is inadequate and should be increased.

Parents have the legal obligation to support, maintain and educate their children. La.Civil Code Art. 227. The amount of support awarded must be based upon the needs of the child and the circumstances of the parent. La.C.C. Art. 231.

Here the trial judge found that Mrs. Lewis required $500 per month to meet Heather’s needs. The child received monthly Social Security benefits in the amount of $269.70. Therefore, the child support award on a monthly basis was the difference between these two figures, or $230.30. There was evidence that Litton had a gross income in 1979 of $26,037 and in 1980 of $22,858. Considering the needs of the child and the circumstances of the parent, we do not find that the trial judge abused his broad discretion in fixing the amount of child support in this case.

For these reasons, we affirm the judgment of the district court, at appellant’s cost.

      . See Litton v. Litton, 299 So.2d 458 (La.App. 2d Cir. 1974).


author: PRICE, Judge. HALL, Judge,

text:
    Mrs. George M. COX, Plaintiff-Appellee, v. Mrs. Medorah Head SANDERS, Jerry Head Sanders, and Thomas A. Sanders, Jr., Defendants-Appellants.
    No. 14743.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Writ Granted April 15, 1982.

      Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, West Monroe, for defendants-appellants.
    McKeithen, Wear & Burns by George M. Wear, Columbia, for plain tiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, Mrs. George M. Cox, instituted this suit against defendants, Mrs. Medorah Head Sanders, Jerry Head Sanders, and Thomas A. Sanders, Jr., seeking cancellation of all servitudes affecting her property due to accrual of liberative prescription of 10 years nonuse. She further seeks damages and attorney fees because of defendant’s failure to furnish her a recordable act evidencing the extinction of these servi-tudes within 30 days after her written demand as required by La.R.S. 31:206-207. The trial court ordered cancellation of all existing servitudes affecting plaintiff’s property but rejected her claim for attorney fees. Defendants have limited their appeal to the trial court’s decision as it affects one contiguous 400 acre tract which is designated in the trial record as Servitude No. 4. In answer to this appeal, plaintiff contends the trial court erred in denying her claims for attorney fees.

The following facts giving rise to this litigation are not in controversy. In 1961 plaintiff’s husband, George M. Cox, and Mrs. Sanders’ husband, Thomas A. Sanders, Sr., as co-owners in indivisión, conveyed certain lands in two separate deeds to D’Ar-bonne Development Corporation. In 1965, Cox and the present defendants, who succeeded to Thomas A. Sanders, Sr.’s interest in the property, executed two conveyances of certain other tracts owned by them in indivisión to the same corporation. In each of the four conveyances a servitude reserving to the grantors ownership in indivisión of all the minerals was effected. In 1968, D’Arbonne reconveyed to the Coxes and defendants part of the property involved in the four earlier transactions.

In 1968, the Coxes and defendants voluntarily partitioned the lands reacquired from D’Arbonne, in addition to other lands owned in indivisión by them. The partition agreement provided that all minerals would continue to be held in indivisión by the parties.

In 1972 defendants granted a lease to GMB Gas Corporation covering their interest in the servitude under consideration on this appeal. Two wells, Cox and Sanders Wells No. 1 and No. 10, were drilled on the tract of land acquired by defendants from the partition and gas production occurred from 1972 through 1977. The Coxes did not consent to this drilling and were not parties to the lease. All payments tendered to the Coxes by GMB were refused.

After Cox refused to allow GMB the right to conduct drilling operations on his land, GMB filed suit for an injunction against Cox’s interference. Cox reconvened for judgment declaring the lease invalid and for an injunction against any further drilling on any part of the tract in which he was the co-owner of the mineral servitude. This court granted Cox an injunction and declared the lease invalid in GMB Gas Corp. v. Cox, 340 So.2d 638 (La. App. 2d Cir. 1976). In 1977 defendant can-celled the lease.

Plaintiff is now the owner of all the property formerly owned by her and her late husband. After defendants refused her written demands for the cancellation of all the servitudes affecting her property, she filed this suit.

It is stipulated by both parties that no production sufficient to interrupt the running of prescription has occurred on the tracts of land burdened by servitudes which were designated at trial as Servitudes Nos. 1, 2, 3A, and 3B.

Defendants contend that a new servitude, referred to in the record as servitude No. 4, was created by the act of partition and that the production of gas from Cox and Sanders Wells No. 1 and No. 10 from 1972-1976 interrupted the running of liberative prescription.

The precise issue before us, therefore, is whether the good faith drilling of the Cox and Sanders Wells No. 1 and No. 10 under a lease granted by only one of the co-owners (Sanders) without the consent of the other co-owner (Cox) constitutes a “use” of the servitude that interrupted the running of liberative prescription.

We find the trial judge correctly analyzed and resolved this issue in well-written reasons for judgment and we quote from his opinion in part as follows:

Defendants strongly rely upon the decision in Taylor v. Dunn, 233 La. 617, 97 So.2d 415 (La.1957), holding that drilling by the lessee on a one-half mineral interest constituted sufficient use of the servitude to interrupt prescription. There the prevailing plaintiff-lessor owned in its entirety a separate fractional mineral interest, and the Court cited Huckabay v. Texas Company, 227 La. 191, 78 So.2d 829 (La.1955). In the latter case it was recognized that the lessee or owner of fractional mineral rights has an absolute right to develop the property; however, a distinction was there drawn between joint ownership of a single right as compared to two or more fractional rights which are independent of each other. See Starr Davis Oil Co. v. Webber, 218 La. 231, 48 So.2d 906 (La.1950), setting forth the same concept.
In GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App. 2d Cir. 1976), this distinction was again recognized and relied upon after concluding that the partition agreement involved, which is now once more under consideration, created co-ownership of a single mineral servitude. It was determined that the lessee of such a co-owner could not conduct operations on any of the lands subject to the servitude without consent of the other co-owner.
Thus Taylor, concerning owners of separate mineral rights not co-owners of a single mineral servitude, is inapposite to the instant case. Cf. La.R.S. 31:169. . . .
Under Articles 42 and 175 of the Code, except in limited circumstances, a mineral servitude may be used only by its owner, or one acting on his behalf, and a eo-owner may not conduct operations without the consent of the other co-owner.
Except as provided in Articles 44 through 52, use of a mineral servitude must be by the owner of the servitude, his representative or employee, or some other person acting on his behalf. R.S. 31:42.
A co-owner of a mineral servitude may not conduct operations on the property subject to the servitude without the consent of the other co-owner. R.S. 31:175.
We thus conclude that drilling and production by defendants’ lessee, without the consent of plaintiff, was neither such “use” of the servitude nor good faith “operation” as would interrupt running of the prescription of nonuse, as provided by Articles 29, 36, and 41.
Defendants also contend that under Article 174 of the Code, if one co-owner acts without consent of the other, the use inures to the benefit of all co-owners. But that argument is wide of the mark. Plaintiff seeks nor claims no such benefit.
Similarly, defendant’s reliance upon Article 176 of the Code, which states:
A co-owner of a mineral servitude may act to prevent waste or the destruction or extinction of the servitude, but he cannot impose upon his co-owner liability for any costs of development or operation or other costs except out of production. He may lease or otherwise contract regarding the full ownership of the servitude but must act at all times in good faith and as a reasonably prudent mineral servitude owner whose interest is not subject to co-ownership. (Emphasis supplied)
is not persuasive.
Although, given the appropriate circumstances, a co-owner may have the right of independent action, such does not appear here. Prescription resulting from nonuse of a mineral servitude runs for ten years. LSA-R.S. 31:27. At the time of execution of the lease to GMB the servitude in question had an additional six year term of existence. Hence, defendants cannot justify their conduct as acts in good faith to prevent extinction of a mineral servitude about to expire. Secondly, it is noted that the lease, as stipulated, purported to cover only the interest of defendants, not “the full ownership of the servitude” as referred to in the above article.
Accordingly, we conclude that production from the two wells in question did not interrupt the ten-year nonuse prescription, which has now run against any and all servitudes involved. The demands of plaintiff to cancel such servi-tudes are thus granted.

We find the foregoing to be a correct application of the jurisprudence and the pertinent mineral code provisions to the circumstances here presented, and as' the trial court’s reasons coincide, with the views of this court, we adopt the above excerpts as the opinion of this court.

In argument to this court, appellants rely principally on the decisions in Hodges v. Norton, 200 La. 614, 8 So.2d 618 (1942) and Lowry v. MRT Exploration Co., 382 So.2d 1034 (La.App. 2d Cir. 1980), along with the provisions of Art. 174 of the' Mineral Code. These decisions and the referred to codal article do provide that the use of a mineral servitude by one co-owner shall inure to the benefit of all other co-owners. However, these decisions and the quoted article are only effective if the actions of the initiating co-owner are of benefit to the other co-owner and are not adverse to his best interest. This is the only construction which can give meaning to both Art. 174 and Art. 175. The fact that production was obtained and continued by GMB for a period of some three years does not constitute a legal use of the servitude under the unusual circumstances of this case. Appellee never consented to the lease or drilling thereunder, and never accepted any payment from the lease or production. Therefore, appellants should not be allowed to rely on the unauthorized exploration and production which is contrary to the statutory law.

The code provides the specific exceptions where a co-owner may act without the consent of the other (none of which are present here as pointed out by the trial court and set forth above) and these afford adequate protection from the arbitrary refusal of one co-owner to cooperate to obtain exploration under the servitude.

In addition, to prevent a “freeze out” by a combination land owner and servitude co-owner as exists here, the code provides the remedy of partition of the mineral servitude under Art. 172.

We conclude that the result reached by the trial court is one which most appropriately gives meaning to all of the provisions of the mineral code and is in substantial accord with the prior jurisprudence.

Appellees, in answer to the appeal, have requested we review the rejection of their demand for damages and attorney fees based on appellánt’s failure to furnish a recordable release of the several servitudes within thirty days of written demand as provided by La.R.S. 31:206-207.

Appellees contend the record shows there was no bona fide dispute as to expiration on the servitudes referred to at trial as Servi-tudes Nos. 1, 2, 3(A), and 3(B).

We find no manifest error on the part of the trial court in refusing appellee’s demands for this relief. The principal object of this litigation was the validity of the servitude affecting the 400 acre tract as to which this appeal was restricted. There is no evidence in the record on which we could separate the effort expended on the several servitudes which were ordered cancelled and were not made an issue on this appeal. Nor is there any evidence to show any damage from the failure to comply with the statute. We therefore find no abuse of the trial court’s action in this regard.

For the foregoing reasons, the judgment is affirmed. Cost of this appeal is assessed to appellants.

HALL, Judge,

dissenting.

My study of this appeal leads me to a conclusion contrary to that of the majority; I would reverse and hold that prescription was interrupted by production by Sanders’ lessee of gas from the two wells located on the property affected by the servitude.

GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App. 2d Cir. 1976), relied on by the majority, was a contest between the lessee of one co-owner of a single mineral servitude and the other co-owner of the servitude. The case held that under Article 175 of the Mineral Code, LSA — R.S. 31:1 et seq., as well as under law prior to the Code, one co-owner of a mineral servitude may not conduct operations on the property subject to the servitude without the consent of the other co-owner. The co-owner of the servitude who had not leased (Cox) was granted an injunction against the lessee of the other co-owner (Sanders) forbidding further operations by the lessee on any part of the 400-acre tract subject to the servitude.

The fact that Cox was the owner of part of the land affected by the servitude was not an issue in the case and Cox’s rights as landowner were not involved in any way.

The present suit is by Cox as landowner against Sanders as one of the co-owners of the servitude to have the servitude declared prescribed by 10 years nonuse. I believe that the production from the wells (which were apparently drilled prior to 1965 by a prior lessee of all the mineral owners) on the property affected by the servitude from 1972 to 1976 by one of the co-owners of the servitude constituted a use of the servitude and interrupted prescription, preventing the extinction of the servitude.

Article 29 provides that the prescription of nonuse running against a mineral servitude is interrupted by good faith operations for the discovery and production of minerals. The operations here were in good faith as defined in Article 29, having been commenced with reasonable expectation of discovering and producing minerals in paying quantities. Article 36 provides that prescription of nonuse is interrupted by the production of any mineral covered by the acts creating the servitude. Here there was production for several years and, under the article,, prescription commenced anew from the date of cessation of actual production. Article 42 provides that except as provided in Articles 44 through 52, use of a mineral servitude must be by the owner of the servitude, his representative or employee, or some other person acting on his behalf. Here the use was by the lessee of one of the co-owners of the servitude acting on behalf of the co-owner of the servitude. Under Article 174 the co-owner’s use inured to the benefit of the other co-owner, even though that co-owner did not consent to the operations and later enjoined continued operations. “If it should happen that one co-owner acts without consent of the other, the operations nevertheless will inure to the benefit of both under Article 174.” Comment following Article 175.

Article 175, the basis for the decision in GMB Gas Corp. v. Cox, supra, does not control the determination of the instant case. Article 175 has to do with rights as between co-owners of a mineral servitude. The instant suit is not between co-owners of a mineral servitude, as such, but is between a landowner and a servitude owner who only coincidentally are also co-owners of the servitude, an unusual situation possible only because of the special provisions of Article 67 relative to partitions.

Wells were produced on the property subject to the servitude by a co-owner of the servitude for several years. As to the landowner, this should be sufficient to interrupt prescription running against the servitude. Sanders’ dispute with his servitude co-owner should have nothing to do with the landowner’s rights and does not change the fact that minerals were produced from the property, which interrupted prescription under the plain provisions of the Mineral Code.

Lowry v. MRT Exploration Co., 382 So.2d 1034 (La.App. 2d Cir. 1980), writ refused 385 So.2d 793 (La.1980), lends support to this conclusion. A landowner sued the owners of a servitude claiming that a well drilled by a co-owner of the servitude interrupted prescription only as to that co-owner’s undivided interest. This court held that the drilling of a well by one of the co-owners of a single mineral servitude interrupted prescription to the benefit of all co-owners of the servitude. See also Hodges v. Norton, 200 La. 614, 8 So.2d 618 (1942).

I respectfully dissent.

      . This tract was not included in the reconveyance from D’Arbonne to plaintiff and defendant.


author: HALL, Judge.

text:
    HOWARD GRIFFIN, INC., Plaintiff-Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 14744.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Rick C. Anzalone, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio, Monroe by Thomas M. Hayes, III, for defendant-ap-pellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The issue presented by this appeal is whether the loss payee of a collision insurance policy may recover from the insurer the amount of damages to the insured vehicle on which the loss payee held a mortgage where the named insured previously settled with and released third parties who caused the damages from all liability. The trial court dismissed the loss payee’s suit and it appealed. We affirm.

The declaration page of the motorcycle policy issued by defendant to the insured names a loss payee and provides that any loss “is payable as interest may appear to named insured and above loss payee.” The policy contains no other mortgage clause or loss payee provisions. The loss payee provision in this policy is a simple or open loss payee clause as distinguished from a standard or union mortgage clause. See May v. Market Ins. Co., 387 So.2d 1081 (La.1980). Where the policy contains a simple or open loss payee clause, the contract remains one between the insurer and the insured. The loss payee is but a conditional payee of a part of the proceeds of the policy. The rights of the loss payee are no greater than the rights of the insured and are subject to all of the terms and conditions of the policy. A breach of conditions of the policy by the mortgagor-insured which would prevent recovery by him precludes recovery by the mortgagee-loss payee. Eicher-Woodland Co., Inc. v. Buffalo Ins. Co. of N.Y., 198 La. 38, 3 So.2d 268 (1941); Couch on Insurance, §§ 42:668, 669, 671 (2d ed. 1963).

The policy contains a subrogation clause, conventionally subrogating the insurer to the rights of the insured to recover damages from another, and providing that the insured shall do whatever is necessary to enable the insurer to exercise its subro-gation rights and shall do nothing after loss to prejudice those rights. By settling with and releasing the persons responsible for the loss to the insured motorcycle, the insured destroyed the insurer’s rights to recover from those persons. It is well settled that where the insured prejudices the insurer’s subrogation rights provided under the policy, the insured cannot recover from the insurer. Washington v. Dairyland Insur ance Company, 240 So.2d 562 (La.App. 4th Cir. 1970).

It follows, then, that plaintiff, loss payee under an open or simple loss payee clause, cannot recover from the insurer in this case where the named insured has prejudiced the insurer’s subrogation rights and could not himself recover from the insurer.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.