text:
    RED RIVER, Atchafalaya and Bayou Boeuf Levee District, Plaintiff-Appellee, v. Rodney V. NOLES, Defendant-Appellant.
    No. 8456.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Trimble, Randow, Smith & Wilson, Lon P. Wilson, Alexandria, for defendant-appellant.
    Gus Voltz, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.
   YELVERTON, Judge.

Plaintiff-appellee, Red River, Atchafala-ya and Bayou Boeuf Levee District (Levee District) obtained a mandatory preliminary injunction ordering defendant-appellant, Rodney V. Noles (Noles) to remove buildings and construction on the right-of-way, or servitude, of the Levee District. Noles suspensively appealed. We affirm.

The Levee District obtained a conventional servitude in 1951 from Frank E. McNutt, then the owner, over three and a half acres of land located in Rapides Parish, for the purpose of constructing the Bayou Boeuf-Cocodrie Diversion Canal. The right-of-way provides for “the right to use all or any part of the property for any purpose with, or connected with construction or excavation of canals or ditches, storage or placement of spoil or spoil dirt, storage or placement of any and all machinery and/or equipment, irrigation, storage or impounding of water, levee construction or relocation and flood control or anything incidental thereto”. Pursuant to this acquisition, the Levee District constructed the Bayou Boeuf-Cocodrie Diversion Canal which it presently maintains.

Subsequent to this grant the ownership of the three and a half acres changed hands. In 1974 the Levee District and the new owner entered into an agreement whereby the right-of-way or servitude was reduced in size extending outward 150 feet from the top bank of the existing canal.

Noles, the present owner of the property, purchased same in June of 1979 burdened with the 150 foot servitude. Noles or his predecessors in title caused to be erected, entirely within the 150 foot right-of-way, a metal building on a concrete slab, for use as a barn. The rear of the building is situated 56 feet from the outer edge of the right-of-way and 94 feet from the top bank of the existing canal.

When all other efforts to obtain the removal of the building failed, the Levee Board filed a suit alleging that the erection and maintenance of the building makes the use of the servitude more burdensome and that it makes it impossible for it to exercise the full rights of its servitude. The suit asked for a mandatory injunction requiring the removal of the structure and an injunction prohibiting the erection of any other structure in the right-of-way over Noles’ property.

The application for a preliminary injunction was filed February 13,1981. The hearing was scheduled for February 23, 1981, at which time the matter was given a full hearing and proof was taken as in ordinary cases. After taking the matter under advisement for briefs, the trial court granted a mandatory preliminary injunction, ordering the removal of all buildings or construction on the right-of-way.

Noles contends on this appeal that the trial court erred in issuing a mandatory preliminary injunction (1) without proof that the use of the servitude had been made more burdensome by the location of the building; (2) without a showing of irreparable harm or injury; and (3) on a mere prima facie showing. We will now address ourselves to these three issues.

I. DOES THE BUILDING DIMINISH THE SERVITUDE?

The trial court based its granting of the injunction on Louisiana Civil Code Article 748 and on the authority of Hymel v. St. John the Baptist School Board, 303 So.2d 588 (La.App. 4th Cir. 1974), writ refused, 307 So.2d 370 (1975); and Kaffie v. Pioneer Bank and Trust Company, 184 So.2d 595 (La.App. 2nd Cir. 1965), aff’d on rehearing, 204 So.2d 54 (La.App. 2nd Cir. 1967), writ refused, 251 La. 685, 205 So.2d 605 (1968). Civil Code art. 748 states in pertinent part:

“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.”

The two cases cited supra, Hymel and Kaf-fie, both required the removal of permanent structures which made the use of rights-of-way more inconvenient. Both cases cited former Civil Code art. 777 as authority for the mandatory injunctions. The above quoted portion of present Civil Code art. 748 tracks substantially the language of former art. 777.

It is evident, as pointed out by the trial judge, that the existence of a permanent building on the right-of-way tends to diminish or make more inconvenient the use of the servitude. Chester D. Wells, a member of the Board of Commissioners of the Levee District and its President, testified that the Levee District is responsible for maintenance of Bayou Boeuf-Coeodrie Diversion Canal which had been built by the U. S. Corps of Engineers, and that the Levee District actively maintains the canal. He described its maintenance as the removal of silt, trees, limbs and debris that might accumulate in the canal and obstruct drainage, including spraying trees to deaden vegetation which might give problems with drainage.

Obviously, space is required for the free movement of vehicular traffic needed to accomplish this maintenance. The largest piece of equipment presently owned and used by the District is a dragline which itself requires 60 feet from the top bank for its operation. Additionally, Noles testified that there are studies underway financed by a Federal appropriation looking to the eventual deepening and widening of the 61 mile long canal.

Noles contends that the testimony of Wells not only fails to prove that the location of the building makes the use of the servitude more burdensome, but that this testimony actually establishes that the building does not diminish the servitude or make its use more inconvenient. We reject this contention. We agree with the finding of the trial judge that the presence of the permanent building wholly within the right-of-way constitutes an obstruction which diminishes the servitude and makes its use more inconvenient.

However, we do not rest our decision merely on the finding that the area of the servitude is actually needed to carry out the functions of the Levee District and the purposes listed in the servitude agreement. The physical area needed to carry out these functions is not open to speculation. When the right-of-way is the result of a contract, its extent is regulated by the contract. Hymel v. St. John the Baptist Parish School Board, supra. Louisiana Civil Code Article 705 provides that for a servitude of passage, the extent of the right is determined by the extent necessary for the reasonable use of the dominant estate unless the title provides otherwise. The affirmative servitude of drain in this ease, while arguably more extensive than that contemplated by Article 705 (“extent necessary for the reasonable use of the dominant estate”), is analogous to a servitude of passage in that it provides an area of a certain width for the owner of the dominant estate to do a certain thing on the servient estate. Civil Code Article 749 can be likened to Article 705 in that it provides that the intention of the parties is to be inferred from the purpose of the servitude only if the title is silent as to the extent and manner of use of the servitude. Thus, reasoning a contrario sensu from Articles 705 and 749, when the title provides the exact dimensions of the area affected by the servitude, that contract must be given full effect. The owner of the servient estate may not, by unilateral action, effectively take over unused areas of the servitude by establishing thereon permanent structures. See also Armstrong v. Red River, Atchafalaya and Bayou Boeuf Levee Board, 278 So.2d 496 (La.1973).

In this case, there is no dispute that the title provides for a servitude consisting of an area 150 feet from the top bank of the canal and that Noles’ building lies within that area. Therefore, since the terms of the contract govern the extent of the servitude, Noles cannot justify his infringement by saying that his building does not prevent the use of the right-of-way by the dominant estate.

The case which Noles cites in support of his position is distinguishable from the case before us. The First Circuit in South Central Bell Telephone Company v. Dempster, 303 So.2d 280 (La.App. 1st Cir. 1973) upheld the trial court’s ruling that a mandatory injunction should not issue to remove an object which, even though located on the servitude, is not shown to interfere with or obstruct the use thereof. It is not clear from the opinion whether the extent of the servitude in Dempster was regulated by contract or not. In any case, however, it is evident that Noles’ building would interfere with the exercise by the Levee District of its servitude. Since the Levee District has a right by contract to exercise its servitude on all or any part of the area bargained for, a mandatory preliminary injunction to remove obstructions to this right of use is appropriate.

II. MUST THE LEVEE DISTRICT SHOW IRREPARABLE HARM?

Pursuant to this assignment of error, Noles contends that it was improper for the trial court to issue a preliminary injunction without a showing of irreparable harm or injury. We find that it was unnecessary for the Levee District to make a showing of irreparable harm or injury in order to obtain a preliminary injunction to protect a servitude.

The usual statutory ground for the issuance of an injunction is Code of Civil Procedure art. 3601 which does require a showing of irreparable injury, loss, or damage. However, this article itself contains a provision recognizing the existence of grounds for injunctive relief which do not require the parties seeking the injunction to show evidence of irreparable injury. Article 3601 provides in part:

“An injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law;

We had occasion in Chapman v. Fisher, 370 So.2d 162 (La.App. 3rd Cir. 1979) to construe the above quoted language from Article 3601, and we said:

“This provision authorizes an injunction in two separate instances: First, where the applicant suffers some irreparable injury, and second, in any other case where an injunction is specifically provided as the appropriate remedy. From a clear reading of this article’s language an applicant does not need to establish irreparable injury if the law specifically affords him the remedy of an injunction.”

An injunction to protect a servitude is authorized under Code of Civil Procedure art. 3663 . Section 2 of that article makes injunctive relief available to a person disturbed in the possession or enjoyment of a real right which he and his ancestors in title have had for more than a year. When injunctive relief is sought on this ground, there is no requirement for a showing of irreparable harm. Patin v. Richard, 357 So.2d 1285 (La.App. 3rd Cir. 1978); Elliott v. Louisiana Intrastate Gas Corporation, 336 So.2d 925 (La.App. 3rd Cir. 1976); Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3rd Cir. 1972) on rehearing; Yiannopoulos, Civil Law Treatise, Vol. 2 on Property, § 229 at p. 612 (1980).

III. WAS THE MANDATORY INJUNCTION ISSUED ON A MERE PRIMA FACIE SHOWING?

Finally, Noles contends that the trial judge erred in issuing a mandatory injunction on a prima facie showing. In oral argument before this court, counsel for defendant clarified this contention by explaining that what was intended was an objection to the issuance of a mandatory injunction on a preliminary injunction hearing. Noles cites the case of Black v. Good Intent Towboat Company, 31 La.Ann. 497 (1879) to support the proposition. The Supreme Court in that case recognized that a mandatory injunction could issue to protect a real right but the question before it was “should a mandatory injunction issue upon a preliminary motion or application”? The court said:

“The writ of injunction will issue on the ex parte application of the complainant only in its prohibitory form, and in cases where the only purpose to be accomplished is to restrain or prohibit something from being done. But in its mandatory form, when it commands the doing of something, it cannot be issued until a hearing on the merits, or when, a prohibiting writ having issued restraining a party from obstructing the exercise of a right, the obstruction may be commanded to be removed, because its continuance effects the very injury he was prohibited from effecting.”

Elsewhere in the opinion the court addresses the same issue by declaring that it is unlawful to issue a mandatory injunction before “a trial upon the issues of the controversy”.

Our present law relating to injunctions is based largely on Act 29 of 1924. Prior to 1924, a preliminary injunction issued without notice or hearing, simply on an ex parte application. One of the purposes of Act 29 of 1924 was to prohibit this practice. See 26 La.Bar Assn. Rep. 15, reprinted in part in 2 McMahon La.Practice 1280. The Black decision supra, and two other early Louisiana Supreme Court decisions which will be discussed in the next two paragraphs, had already condemned the practice of issuing a mandatory injunction on an ex parte application, even before the passage of Act 29 of 1924.

In Board of Commissioners of Petite Anse Drainage District v. Iberia and Vermilion R. Company, 117 La. 940, 42 So. 433 (1906), the court quoted the above language from the Black decision and held simply that a mandatory injunction may not issue on an ex parte application.

The Supreme Court again considered the subject in 1923, in the case of Broussard v. Cormier, 154 La. 877, 98 So. 403. The plaintiff in that case, seeking to remove an obstruction to a real right, obtained a mandatory injunction on a hearing on a rule nisi (rule to show cause). Whether the trial judge was empowered to issue a mandatory injunction after a hearing on a rule to show cause was an issue on appeal. The Supreme Court stated:

“We think the ruling of the court was correct. The general rule is that an injunction will issue only in its prohibitory form, but when a defendant obstructs a plaintiff in the enjoyment of a real right, as by fencing a common passageway or building a levee across a drainage course, the latter is entitled to a prohibitory injunction restraining the disturbance and to a mandatory injunction for the removal of the obstruction or to undo what has been illegally done. State ex rel Yale v. Judge, 41 La.Ann. 516, 6 So. 512; Black v. Towboat Co., 31 La.Ann. 497; V. S. & P. Ry. Co. v. Webster Sand & Gravel Co., 132 La. 1051, 62 So. 140, 47 L.R.A. (N.S.) 1155.
“Such an injunction however, should never issue ex parte, but only after hearing either on rule or on the merits. It was not issued in this case until the defendant was notified and had his day in court.”

After the enactment of Act 29 of 1924, which required notice and a hearing as a prerequisite to the issuance of a preliminary injunction, the Supreme Court decided the case of Town of Leesville v. Kapotsky, 168 La. 342, 122 So. 59 (1929). It reaffirmed the rule explained in Broussard v. Cormier, supra, saying:

“Such injunction [mandatory], however, should never be granted ex parte, but only after hearing either on rule or on the merits.”

The most recent case to cite Black v. Good Intent Towboat Co., supra, on which appellant relies, is Gamburg v. City of Alexandria, 85 So.2d 276 (La.App. 2nd Cir. 1956). In that case the right to a mandatory injunction for the removal of an obstruction to 'a real right was extensively documented. The court also cited cases including Brous-sard v. Cormier, supra, which it interpreted as establishing a general rule that a mandatory injunction should not issue save after a hearing on the merits of the case or in aid of the enforcement of a prohibitory injunction which has already been issued. The trial judge in Gamburg had refused to grant an injunction. The Second Circuit reversed, finding on the facts in the record, as developed at the hearing conducted at the trial, level, that a mandatory injunction should have been granted. It appears implicit in the opinion of the Second Circuit that the hearing below was on a preliminary injunction. The Second Circuit found, however, as a matter of fact that the matter was dealt with at the trial level as being on the merits. The Court accordingly reversed the trial judge and granted the complainant the mandatory injunction he sought.

In the case before us, the matter was fully heard on the rule to show cause issued pursuant to the petition for a mandatory injunction. The plaintiff opened and closed the trial as in an ordinary proceeding. The hearing was dealt with as a trial on the merits, without any objection by defendant.

Code of Civil Procedure art. 3609 allows the court to limit the evidence presented at the hearing for a preliminary injunction to verified pleadings or supporting affidavits, but the court must do so in writing, and a copy of the order must be served upon the defendant. No such order was issued by the trial court in this case. The evidence heard at the hearing was not limited and both sides presented testimony from witnesses. The record before us shows that the trial court permitted the parties a full hearing on all the issues in controversy. There is nothing in the record to indicate that either party was disadvantaged in the production of evidence or that the defendant was prejudiced by the fact that the trial was held only 10 days following the filing of the petition.

Under these circumstances, we hold that the mandatory preliminary injunction requiring Rodney V. Noles to remove his building from the right-of-way was properly issued by the trial court.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.

      . “Art. 705. Servitude of passage. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate.”

      . “Art. 749. Extent and manner of use of servitude when title is silent. If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.”

      . “Art. 3663. Sequestration; injunctive relief. Sequestration of immovable property or of a real right involved in a possessory or petitory action during the pendency thereof is available under the applicable provisions of Chapter 1 of Title I of Book VII.
      “Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right, is available to:
      “(1) A plaintiff in a possessory action, during the pendency thereof; and
      “(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

      . The pertinent part of Code of Civil Procedure art. 3609 reads:
      “The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Barbara GUILLORY, Plaintiff-Appellee, v. INLAND LIFE INSURANCE COMPANY and Ideal National Insurance Company, Defendant-Appellant.
    No. 8470.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Dubuisson & Dubuisson, Edward B. Du-buisson, Opelousas, for defendant-appellant.
    Felix A. DeJean, III, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

Barbara Guillory brought suit for disability payments under the provisions of an income disability policy issued to plaintiff by Inland Life Insurance (now Ideal National Insurance . Company). The trial judge rendered judgment awarding plaintiff disability benefits, penalties and attorney’s fees. Defendant appealed, and the plaintiff has answered the appeal, seeking an increase in the award of attorney’s fees.

The issues presented are whether the trial court erred in finding plaintiff disabled past February 29, 1980, and whether penalties and attorney’s fees should have been awarded.

DISABILITY CLAIM

The plaintiff purchased the disability policy in May 1979. Under the provisions of the policy, defendant agreed to pay plaintiff $200.00 per month disability payments if she became disabled due to injury or sickness. Plaintiff sustained injuries when she was involved in a fall while employed by Garan Industries, Inc., on October 8, 1979. The plaintiff was injured when her chair overturned as it became entangled in a hose lying on the floor. Plaintiff struck her head on the floor causing her to become unconscious for several minutes. She was taken to the Opelousas General Hospital where she was seen by Dr. Emile Ventre, her family physician.

Dr. Ventre diagnosed plaintiff’s injuries as a cervical and lumbar sprain along with contusions to the left ulna nerve. Plaintiff was hospitalized for a period of six days. Dr. Ventre continued thereafter to see plaintiff for her complaints of back pain and numbness in her hands and left leg.

While plaintiff was hospitalized she was examined by Dr. L. Lazaro, III, an orthopedic surgeon, at the request of Dr. Ventre. Dr. Lazaro found that plaintiff suffered a mild to moderate cervical strain and a liga-mentous strain to her back. Also, this physician found a contusion to the left ulna nerve at the elbow. He recommended bed rest and medication. He felt that plaintiff could resume her duties in 6 to 8 weeks. This is the only examination by Dr. Lazaro.

Dr. Ventre continued to see plaintiff and, due to her complaints of numbness, referred her to Dr. J. Frazer Gaar, an orthopedic surgeon. Plaintiff was examined by Dr. Gaar on three occasions, February 11, February 26 and February 29, 1980. As a result of the first examination Dr. Gaar was not able to ascertain the cause of plaintiff’s complaints but recommended that Dr. Ven-tre start plaintiff on a progressive program of physical therapy along with medication. Substantially the same recommendations resulted from Dr. Gaar’s second examination. The report of Dr. Gaar, and his testimony, reflects that, as of February 29,1980, he was unable to find any reason for plaintiff’s symptomology. He felt that she had reached a medical plateau and that plaintiff could return to work.

Dr. Ventre continued to see plaintiff and, even though he was unable to determine the exact cause for the complaints, he testified that plaintiff was disabled from performing her duties at her employment. Dr. Ventre explained that he had known and treated plaintiff for several years as her family physician. He was fully convinced that plaintiff’s disability resulted from injuries received in the accident and such disability existed at the time of trial, August 26, 1980.

The trial judge accepted the testimony of Dr. Ventre and found that the plaintiff was disabled from performing her duties with her employer as a result of the accident and that such disability was continuing at the time of trial. Judgment was rendered ordering defendant to pay $200.00 per month beginning on October 8, 1980 and continuing during disability.

It is the function of the trier of fact to determine the credibility of witnesses and the weight to be given to both the lay and medical testimony. Where the evidence is in conflict, the trial court’s determination of credibility should not be disturbed on appeal unless a review of the record indicates that the determination of the trial court is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no manifest error in the trial judge’s factual conclusion.

PENALTIES AND ATTORNEY’S FEES

The plaintiff filed her claim with defendant on forms supplied by defendant’s agent. This claim was received by defendant November 2, 1979. Dr. Ventre supplied defendant with monthly reports, beginning with a report dated October 30, 1979, showing plaintiff’s disability. These monthly reports of plaintiff’s disability by Dr. Ventre continued through June 1980. No payment was made until April 12, 1980, at which time defendant paid $1,000.00 in benefits for a period up to March 17, 1980. Defendant subsequently paid an additional $20.00 for the month following March 17, 1980.

The facts and circumstances presented clearly show that the defendant had no just or reasonable grounds to refuse payment until April 25, 1980, the date the report of Dr. Gaar was received by defendant. Plaintiff filed the required forms and Dr. Ventre supplied the necessary information each month certifying that she was still disabled through June 1980. The defendant insurer argues that its delay in payment was reasonable because additional documents had been requested from plaintiff. Even if this fact justified the delay in payment the defendant admittedly received all the requested documents by the end of December 1979 and it still did not begin payments until April 1980.

Defendant received Dr. Lazaro’s report on December 26, 1979, which described the plaintiff as having disabling injuries. Although Dr. Lazaro expressed the opinion that plaintiff should have been able to resume work within 6 to 8 weeks, no followup examination was made and the defendant cannot assume that plaintiff did in fact make full recovery.

Dr. Gaar’s report, received by defendant on April 25, 1980, states that upon his last examination, on February 29, 1980, he felt that plaintiff had recovered and could resume her employment. This information was not known to defendant until April and therefore cannot excuse its delay in payment prior to April 1980.

The trial court was clearly correct in awarding penalties and attorney’s fees under the provisions of LSA-R.S. 22:657. The trial court doubled the amount of the payments of $200.00 per month from the date of the accident, October 9, 1979, until April 25, 1980, the date the defendant received Dr. Gaar’s report. The trial court also awarded $750.00 as attorney’s fees.

Plaintiff answered the appeal seeking an increase in the attorney’s fees awarded by the trial court and also additional attorney’s fees for this appeal. We have examined the record and we note that the trial was not protracted. Only three witnesses were called to testify at trial; plaintiff, Dr. Ventre, and Joyce Murray, an employee of defendant. Dr. Gaar’s testimony was introduced by deposition. We have concluded that, while $750.00 may be a conservative award of attorney’s fees, we cannot say that it was manifestly erroneous.

Plaintiff has answered the appeal seeking additional attorney’s fees for the appeal. We conclude that plaintiff is entitled to $500.00 as additional attorney’s fees for this appeal. The trial court judgment will be amended accordingly.

For the reasons assigned, the judgment of the trial court is amended by increasing the attorney’s fees awarded the plaintiff to $1,250.00. In all other respects the trial court judgment is affirmed.

Defendant-appellant is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . Inland Life’s name was changed to Ideal National Insurance Company effective December 31, 1979.


author: SWIFT, Judge. DOMENGEAUX, Judge,

text:
    Mrs. Alcide GUIDRY, Indiv., etc., Plaintiffs-Appellants, v. SLINE INDUSTRIAL PAINTERS, INC., et al., Defendants-Appellees.
    No. 8475.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Writ Granted Jan. 8,1982.
    Stockwell & Associates, Bernard H. McLaughlin, Jr., Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan and G. Michael Bourgeois, Lake Charles, for defendant-ap-pellee.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, participated as Judge ad hoc in this decision.

   SWIFT, Judge.

In this workmen’s compensation case the plaintiff-appellant, Mrs. Alcide Guidry, seeks death benefits, penalties and an attorney’s fee from the defendant-appellees, Sline Industrial Painters, Inc. and its workmen’s compensation insurer, Liberty Mutual Insurance Company. From a judgment rejecting her demands, Mrs. Guidry has perfected this appeal. We reverse.

The only issue on appeal is whether or not the trial court erred in holding that the plaintiff is not entitled to recover, because she did not prove that the fatal heart attack suffered by her husband was work-related within the meaning of our compensation act.

On December 28, 1979, Mr. Guidry was working at the Cities Service plant near Lake Charles as an industrial painter. Although he did some painting, his primary duty on that particular day was to stand on the ground near the bottom of a 10 or 12 foot aluminum ladder being used by a co-employee, Joseph C. Duplechain, in painting a warehouse and see that the ladder did not slide out from under Mr. Duplechain. He also moved the ladder three or four feet from time to time when Duplechain painted from the ground. Duplechain and other co-employees all testified that Guidry’s duties did not entail any stress, strain or other exertion. They said that the deceased made no complaints, such as pain in his chest, or showed any external signs of exertion, such as perspiration or shortness of breath. At approximately 2 p.m. Guidry and his fellow painters ceased work for a regularly scheduled smoke break. While sitting in a designated smoking area, smoking a cigarette and talking with the other employees, Mr. Guidry suffered a sudden heart attack which resulted in his death several weeks later.

The medical testimony indicates that the deceased suffered an acute myocardial infarction, secondary to a therosclerotic heart disease. One of the attending physicians, Dr. A. Kent Seale, a surgeon, said it was possible the heart attack was work-related, but he declined to give a definite opinion in this regard. The other treating physician, Dr. Allen Richert, a family practitioner, and Dr. Michael C. Turner, a cardiovascular expert who saw the decedent in consultation at the hospital, were of the opinion that the decedent’s employment activities were not precipitating factors in causing the heart attack. Dr. Richert further testified that if the deceased exhibited no external signs of physical exertion, such as perspiration, shortness of breath, or chest pains during his work activities, then this would “make it less likely that his activities brought this on.” The opinions of these two doctors were contradicted by a cardiovascular specialist who testified on the basis of medical records, never having seen or treated the decedent.

The Louisiana Workmen’s Compensation Act provides for compensation benefits for injuries suffered by an accident arising out of and in the course of a claimant’s employment. Such benefits have long been awarded to heart attack victims, provided it is shown that the heart attack was caused or precipitated by the duties of the employment. Our supreme court in Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975) stated:

“However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment.” [Citations omitted.]

We agree with the trial court that the preponderance of medical evidence is to the effect that the decedent’s heart attack was neither caused nor precipitated by any activity in which he was engaged in the course of and during his employment. However, on September 28, 1981, after the instant case was decided by the trial judge, our supreme court rendered its decision in Adams v. New Orleans Public Service, Inc. (La.1981), reversing the judgments of both the trial court and the Court of Appeal, Fourth Circuit, and awarding disability benefits for two attacks of angina pectoris which the plaintiff suffered while at work. Unlike the plaintiff in the present case, Mr. Adams, while repairing an exhaust system on a bus, felt hot and sweaty, short of breath, nauseated and as though there was “a heavy weight” on his chest. About two weeks later he experienced the same symptoms during work. After tests and examination his physician concluded that he had suffered attacks of angina pectoris due to arteriosclerosis and advised him not to engage in any hard physical labor in the future. The supreme court concluded that the plaintiff’s disability was caused by accident in the course of his employment since “the attacks themselves came suddenly and unexpectedly, causing violence to the structure of plaintiff’s body.” The defendant’s contention that the employee’s condition resulted from gradual deterioration of the arteries rather than a sudden trauma was rejected. That the plaintiff’s attacks were actually brought on by the failure of his heart muscle to receive an adequate supply of oxygen was recognized. But the court applied the presumption that the disability was caused by accident because there was “proof of an accident and of a following disability without any intervening cause.” Whether or not it might have occurred at another place or time was said to be irrelevant, “[t]he only pertinent inquiry is whether in fact, the accident happened on the job.” However, the court added that the test for causal connection is whether the accident changed plaintiff’s condition so as to render him disabled and unfit for his former employment, citing Bertrand v. Coal Operators Casualty Co., 221 So.2d 816 (La.1969).

This court, of course, is obliged to follow and apply the law as interpreted by the Louisiana Supreme Court. Although there was no indication that Alcide Guidry experienced any symptoms related by Adams which seem to show that the latter’s attacks were actually related to his work activities, this distinction does not appear to be of any significance, according to the majority in Adams. Applying the principles set forth therein, we must hold that since the decedent’s heart attack occurred suddenly, violently and unexpectedly while he was on the job (even though during a rest period) and death resulted, a compensa-ble accident occurred. Therefore, the plaintiff is entitled to recover workmen’s compensation benefits herein.

The record discloses that the medical expenses incurred by decedent before death amounted to $8,164.92 and his burial expenses exceeded the $1500.00 maximum then provided by our workmen’s compensation act. The amounts of his wages are not shown therein, however, and therefore we are unable to calculate the weekly compensation benefits to be awarded the plaintiff. In the interest of justice we will remand the case for a hearing to determine the amount of such benefits and rendition of a final judgment for the weekly benefits, medical and burial expenses and interest to which the plaintiff is entitled. Also, having concluded that the plaintiff was not entitled to workmen’s compensation benefits, the trial judge actually was not called upon to determine whether or not the defendants were arbitrary, capricious or without probable cause in failing to pay same. Therefore, the issue of whether or not the plaintiff is entitled to the statutory penalties and an attorney’s fee must be decided on the remand as well.

For the foregoing reasons, the judgment of the district court is reversed. The case is remanded for determination of the amount of the weekly compensation benefits to which plaintiff is entitled and also whether or not statutory penalties and an attorney’s fee should be awarded. Thereafter that court will render a final judgment according to law and the views expressed herein. All costs of this suit, including this appeal, are to be assessed to the defendants.

REVERSED AND REMANDED.

YELVERTON, J., concurs.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

It is my strong opinion that the plaintiff-widow is entitled to workmen’s compensation benefits due to the death of her husband. I believe that these benefits would have been due even without seeking umbrage from the recent Louisiana Supreme Court Adams case (La.1981). The Adams Court reviewed their previous pronouncements in Bertrand, 221 So.2d 816, Ferguson v. HDE, 270 So.2d 867 (La.1972), and Roussel, 318 So.2d 37, and almost academically held that the plaintiff in Adams was entitled to benefits. My views on some phases of “heart attack” cases are contained in my dissenting opinion in the recent case of Guillory v. U. S. F. & G. Co., 401 So.2d 543 (La.App. 3rd Cir. 1981), which seems to coincide with the expression of the Louisiana Supreme Court in Adams.

The absence of evidence concerning decedent’s wages necessitates remanding to the district court for such a determination. Concerning the remand to determine whether or not penalties and attorney’s fees are due, I have no objection to this action mandated in the majority opinion; however, pursuant to my thoughts on the subject in my dissenting opinion in Guillory, we could decide that issue here and now, in which event I would grant penalties and attorney’s fees. (Although in Adams those sanctions were not granted, it was because of lack of notification to plaintiff’s employer or supervisor. Had notification been made, I have no serious doubt that penalties and attorney’s fees would have been awarded.)

      . The writer of this opinion disagrees strongly with the decision in the Adams case, believing that the majority opinion disregards the legislature’s explicit intention that an employee’s disability must be caused in some way by his employment in order for him to recover workmen’s compensation benefits from that employer. Be that as it may, the law pronounced by the supreme court of this state must be followed by the lower courts.


author: YELYERTON, Judge.

text:
    Joseph AUGUSTINE, et al, Plaintiffs-Appellees, v. M. J. DICKENSON, et al, Defendants-Appellants.
    No. 8476.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Voorhies & Labbe, Richard D. Chappuis Jr., Lafayette, Michael Johnson, Cottonport, for defendants-appellants.
    Knoll & Knoll, Jerold E. Knoll and Kerry L. Spruill, Marksville, for plaintiffs-appel-lees.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.
   YELYERTON, Judge.

This is a suit brought by five property owners for damages to their vegetable gardens, fruit trees and other plants. Original plaintiffs were Joseph Augustine, Anne Bell Hudson, Loubirtha Williams, Herman Lockwood and Lurlean Turner. The damages were allegedly caused by a crop dusting operation on a neighboring estate and a resulting drift of airborne herbicides down onto plaintiffs’ properties. Defendants are M. J. Dickenson, d/b/a M. J. Dickenson Flying Service, and U.S. Fire Insurance Company, Dickenson’s insurer. The trial judge found that plaintiffs suffered property losses caused by the aerial spraying of herbicides by Dickenson, and awarded damages to each plaintiff, totalling $3500, against both defendants. From this judgment Dickenson and his insurer have appealed. We affirm.

The appeal assigns two errors. First, appellants contend that the trial judge erred in reaching the factual conclusion that the Dickenson spraying operation caused the damage to plaintiffs’ gardens, trees and other vegetation. The other complaint is that the damages awarded are not supported by the evidence.

We will now discuss these two assigned errors under the headings “Causation” and “Damages”.

CAUSATION

The testimony is uncontroverted that in early May, 1980, M. J. Dickenson did aerial spraying on a field belonging to Kent Thevenot in Avoyelles Parish. Mr. Dicken-son said he sprayed a chemical known as “Paraquat” on the field to kill Johnson grass, preparatory to the owner planting his soybeans. This chemical, according to both Dickenson and Earl Dubea, an agricultural inspector for the Louisiana Department of Agriculture, is a defoliant. It burns the leaves off of plants. Mr. Dubea explained that although it is designed to kill Johnson grass and weeds, Paraquat works with equally deadly effect on vegetable plants, even trees.

The homes of the five plaintiffs here were lined up on one side of Gremillion Lane, a country road. Thevenot’s field was on the other side. Plaintiffs’ gardens, fruit and nut trees, flower bushes, and lawn grass were in the immediate vicinity of their homes. Several witnesses testified that in early May aerial spraying took place on Thevenot’s land across the lane. Some were outside and felt the chemical as it drifted down on the lane and in their yards.

They testified that this was the only occasion in 1980 that an airplane sprayed in the area of their homes. The plaintiffs testified that almost immediately dots, then brown spots, began to appear on leaves, and most plants simply died, all leaves dropping off. Earl Dubea of the Louisiana Department of Agriculture testified that he went to plaintiffs’ property one month after the spraying and found widespread defoliation typical of Paraguat’s effects in the areas of plaintiffs’ homes, their gardens and their trees.

Thus a summary of the evidence as to causation is that Dickenson was in the air when and where the damage occurred, he was spraying a defoliant and plaintiffs’ plants were defoliated, and no other spraying occurred within the time period that is relevant. The trial court’s conclusion that this spraying operation was the cause of plaintiffs’ loss is amply supported by the evidence.

DAMAGES

Of the five property owners who are plaintiffs, Joseph Augustine was found by the trial court to have suffered the most damage. He was awarded $1000. Anne Bell Hudson was awarded $500; Loubirtha Williams, $800; Herman Lockwood, $750; and Lurlean Turner, $450.

Each plaintiff had heavily damaged vegetable gardens. Some suffered damage to their fruit and other trees, and to flowers and lawn grass. They raised produce for some outside sales but mostly for home use. In Bourg v. Cane Air, Inc., 325 So.2d 738 (La.App. 1 Cir. 1976), damages for such losses were calculated on the basis of type of vegetable, row length, expected yield, and wholesale values.

Augustine testified that he had forty 75' rows of corn that he was cultivating for his family’s personal consumption and to feed his hogs and chickens. He also had pecan trees from which he had sold in previous years from $300 to $400 worth of pecans. He lost almost all of his corn crop and made nothing off his pecan trees. He said he sold plums in years past but the defoliated plum trees produced nothing in 1980. He had a peach tree that died and a fig tree that died along with a willow tree, some hedges and St. Augustine grass on one side of his house. He also lost all the other vegetables growing in his garden such as beans, squash, tomatoes and okra. He testified that he packaged and froze corn and other vegetables for his deep freeze for off-season consumption.

The other plaintiffs testified in similar detail to their individual losses.

The witness Nolan Joseph Armand, manager of Piggly-Wiggly grocery in Marks-ville, was called by plaintiffs to establish prices of certain produce in his store. He gave prices as of January 22, 1981, the date of trial, stating that these prices were higher than they were in July of 1980, and also that these were retail prices.

Earl Dubea, Agricultural Inspector for the Louisiana Department of Agriculture, testified for the defendants. He said that he went to the plaintiffs’ properties about a month after the spraying and that he found widespread and in most cases total damage to the growing things there. Dubea made a partial estimate of damages to the crops based on his inspection of the properties approximately one month after the spraying.

Neither Armand nor Dubea was qualified as an expert witness regarding the values of crops.

There were five plaintiffs in this case and the losses were multiplied by a number of different vegetable crop losses asserted by each plaintiff. Plaintiffs’ damages were based primarily on their own testimony. Since none of them are commercial farmers, they kept no records, and the testimony was based solely on memory and was necessarily estimated and sometimes sketchy.

When it is clear that a plaintiff has sustained some damages as a result of the fault of the defendant, according to our well settled jurisprudence, his demands will not be rejected merely because he cannot establish exactly the amount suffered. Under such circumstances the court must fix the quantum as best it can, and, in this connection, the trial judge is vested with much discretion. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Derouen v. Department of Trans portation and Development, 392 So.2d 765 (La.App. 3rd Cir. 1980). See also Manuel v. Texas Gas Transmission Corporation, 153 So.2d 157 (La.App. 3rd Cir. 1963) (loss of crawfish in pond); Trahan v. Bearb, 138 So.2d 420 (La.App. 3rd Cir. 1962) (loss of cotton crop from herbicide sprayed aerially); Brantley v. Tremont and Gulf Railway Company, 226 La. 176, 75 So.2d 236 (1954) (loss of minnows in pond); and Harrison v. Petroleum Surveys, Inc., 80 So.2d 153 (La.App. 1st Cir. 1955) (loss of muskrats from trapping area). In reviewing an award of damages, the question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. Bitoun v. Landry, 302 So.2d 278 (La.1974).

In reviewing the evidence adduced at trial, we find that the trial court’s assessment of damages was reasonable. The trial judge in giving his ruling discounted the testimony of Mr. Dubea as being unrealistic, and we find that the dollar amounts of appellants’ losses attested to by Mr. Dubea were indeed unreasonably low. On the other hand, the retail prices of the prepared foodstuffs as testified to by Mr. Armand were much higher than the actual loss and accordingly not probative of the value of the crops consumed and sold by appellees. The trial judge recognized that the appel-lees had failed to prove actual dollar loss. He thus based his awards largely on the testimony of the appellees themselves. We find that this evidence reasonably supports the trial court’s awards. Therefore, we affirm the ruling of the trial court. All costs of this appeal are assessed against appellants.

AFFIRMED.

      . Loubirtha Williams died after the appeal was taken and her heirs, Ida' Mae Wiliams Lockwood, Rilla Denise Duskin, Letha Ann Duskin, and Vera Marie Duskin, are substituted as parties-appellees in her place.


author: YELVERTON, Judge.

text:
    HERITAGE SQUARE INVESTMENTS, Plaintiff-Appellant, v. Jerry TROUARD, Defendant-Appellee.
    No. 8478.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Rester & Van Norman, Jeff E. Townsend, Jr., Lake Charles, for plaintiff-appellant.
    C. A. Miller, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.
   YELVERTON, Judge.

Heritage Square Investments (Heritage Square) appeals the dismissal of eviction proceedings it brought against its tenant, Jerry Trouard (Trouard). The eviction proceedings followed a 30 day notice of termination given by the lessor at the end of a four year lease. The trial court held that the lessee had timely exercised an option to renew the lease for an additional two years, and dismissed the eviction proceedings. We affirm.

The dispute arises from the following circumstances. By written instrument dated March 1, 1977, William M. Hale, Jr., Thomas A. Flanagan, Jr. and Robert E. Schmitt, as owners, leased 770 square feet of office space in an office building known as Heritage Square in south Lake Charles to Jerry Trouard. The lease had a four year primary term. Rent was payable monthly in advance calculated during the primary term at 40 cents per square foot ($308 a month).

Hale, then 40% owner of the complex, negotiated the terms of the lease with Trouard. The form lease had this sentence typed in under paragraph one:

“Trouard has 2-year option under same conditions except rental will increase to 43 cents per square foot.”

There was no other language in the contract dealing specifically with the option to renew. However, paragraph eight of the lease is a holdover clause and it is relevant. It reads:

“In the event Lessee hold over after the expiration of the primary term, such holding over shall not be deemed to extend or renew the term of this lease but such tenancy thereafter shall continue only upon a month to month basis as (sic) the monthly rate of rental and upon all other terms and conditions in effect for the last month of the term, until terminated by 30 days notice given by either Lessors or Lessee to the other.”

In May, 1978, Hale, Flanagan and Schmitt sold the property subject to the lease to a partnership known as Heritage Square Investments, and the rent was paid to Heritage Square after that time.

The primary term ended February 28, 1981. Trouard held over and on March 5 he paid the March rent of $308. This payment was accepted by Heritage Square.

On March 10, 1981, the owners notified Trouard by certified mail that the lease was terminated effective March 31. Trouard responded the same day, in writing, announcing his intention to exercise the two year option and enclosing $23.10, representing the difference due in the March rent based on the new option rate of 43 cents a square foot. The $23.10 check was returned with a letter repeating the owners’ demand that Trouard vacate by March 31. The April rent was tendered on March 26. The petition for eviction was filed April 8, 1981.

In this appeal, Heritage Square contends that the trial court, in holding that there was a valid option timely exercised, committed three errors, as follows:

1. The court failed to find that the language which purported to be an option did not have the requirements of an option under Louisiana law;

2. The court failed to find that the lease had been properly terminated and that the option (if such existed) had also terminated;

3. The court failed in admitting parol evidence to expand a written lease.

These assignments of error will now be considered.

I. WAS THE OPTION VALID?

Appellant contends that the option contained under paragraph one of the lease is invalid because it fails to state a time period for the acceptance of the promise to extend the lease. Appellant refers the court to Civil Code Article 2462 and the cases of Becker and Associates, Inc. v. Lou-Ark Equipment Rentals Co., Inc., 331 So.2d 474 (La.1976); Smith Enterprises, Inc. v. Borne, 245 So.2d 9 (La.App. 1st Cir. 1971); writ refused, 258 La. 574, 247 So.2d 393 (1971); Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922); and Bristo v. Christine Oil & Gas Co., 139 La. 312, 71 So. 521 (1916) which hold that the option to buy or sell under Article 2462 requires a specific term in which the option is to be exercised. That term can either be express or, if the option to buy arises under a contract of lease, the term for the option is impliedly the same as the term of the lease.

However, the option which is under discussion in this case is not an option to buy but an option to renew the term of a lease. Civil Code Article 2462 by its wording applies only to an option to accept or reject an offer to sell. Likewise, the cases cited by the appellant under this article deal only with options to purchase.

The option to renew a lease is governed not by Civil Code Article 2462 but by Civil Code Article 1809. Professor Robert A. Pascal has suggested that Article 2462 applies only to options to buy and sell, while Article 1809 applies to all options other than those to buy or sell. See Pascal, Duration and Revocability of an Offer, 1 La.L.Rev. 189 n. 47 (1938). Professor Saul Litvinoff states in the Louisiana Civil Law Treatise:

“It has been suggested that Article 2462 applies only to options to buy or sell, and not to options to enter into any other kind of contract. It is here submitted: (a) that the provisions of the article in question, insofar as the payment of a consideration is involved, are applicable only to the specific contract of option to sell; (b) that those provisions are not applicable to options relative to other contracts; (c) that Article 2462 is inapplicable to cases of simple offers, even offers to sell, as these are regulated by Article 1809.” Litvinoff, Obligations § 145 (6 La.Civil Law Treatise, 1967).

Civil Code Article 1809 provides that an offeror cannot revoke his offer without allowing the offeree such reasonable time to accept the offer which the offeror has either expressly given to the offeree or must be supposed to have intended to give to him. The option to renew a lease is an offer given by the landlord to the tenant which the tenant accepts by communicating his intention to accept within the time given by the landlord. If, as in the instant case, no time is expressly provided by the landlord for acceptance of the option, the tenant must accept the offer within the time which “from the circumstances of the case [the landlord] may be supposed to have intended to give the party, to communicate his determination”. Civil Code Article 1809.

Civil Code Article 2462 requires the time for acceptance of an option to purchase to be certain, whereas Civil Code Article 1809 allows the time for acceptance of an option to renew the lease to be gleaned from the facts surrounding the granting of the option. Therefore, the failure to include a time period for acceptance does not invalidate the option to renew the lease which was granted to appellee.

II. WAS THE OPTION TIMELY EXERCISED?

Having determined that the option to re-lease was valid, we now must determine whether or not the appellee timely exercised the option. Appellant cites the cases of Mossey v. Mead, 4 La. 195 (1832); Cappiello v. Hingle, 170 La. 295, 127 So. 729 (1930); and LeBlanc v. Barielle, 25 So.2d 638 (La.App.Orl.1946) for the holding that notice of a tenant’s intention to exercise an option to renew a lease must be given before the expiration of the original term of the lease. In the LeBlanc case, the court held the landlord’s failure to immediately evict his tenant upon expiration of the lease was not an acquiescence to a renewal of the lease under an option for an extended term. Instead, the continued occupancy of the tenant after the lease expired was merely a reconduction of the lease under Civil Code Article 2688 in the case of a predial estate or Civil Code Article 2689 concerning the lease of a house or room.

In the case before us, however, the effect of Trouard’s holding over beyond the primary term of the lease was not to create a reconduction of the lease. Civil Code Article 2689 would have been applicable and would have effected a statutory reconduction of the lease had not the parties expressly provided in their contract for the possibility of Trouard holding over beyond the four year term. Paragraph 8 of the lease between Heritage Square and Trouard provides that should this happen “. . . such tenancy thereafter shall continue only upon a month-to-month basis as (sic) the monthly rate of rental and upon all other terms and conditions in effect for the last month of the term . . . ”. Since this paragraph and not Article 2689 governs the contract between the parties, the language of this paragraph needs further study.

According to the quoted language of the lease contract Trouard’s holding over did not “extend or renew the term of the lease” but did preserve “all other terms and conditions in effect for the last month of the term”. Thus, Trouard’s remaining in the leased premises upon the expiration of the primary term granted to Trouard another month in which he could exercise his option, as the right to do so was one of the “terms and conditions in effect for the last month of the term”. Therefore, since the lease expired on February 28, 1981, and Trouard exercised his option on March 10, 1981, the option was timely exercised.

III. WAS THE PAROL EVIDENCE ADMISSIBLE?

Heritage Square contends that Trouard’s right to exercise his option was cut off by the notice to vacate given to Trouard on March 10 before he attempted to renew the lease. Whether or not this argument has merit depends upon the interpretation given to further language in Paragraph 8 of the lease contract. That paragraph states that the “tenancy thereafter shall continue only upon a month to month basis . .. upon all other terms and conditions in effect for the last month of the term, until terminated by 30 days written notice given by either Lessors or Lessee to the other'’.

It is unclear at first glance whether the right of tenancy and the other rights accruing under this clause terminate 30 days after the written notice is given, or whether the giving of notice itself was intended to cut off these rights. A little reflection however shows that it would be incorrect to conclude that the right of tenancy was terminated by the giving of the notice to vacate, since this would render meaningless the thirty days stated in the contract. “When a clause is susceptible of two interpretations, it must be understood in that in which it may have some effect, rather than in a sense which would render it nugatory”. Civil Code Article 1951.

Since it is apparent that the tenancy would terminate 30 days after the written notice is given, it must be presumed that the right to renew the lease under the option would remain in effect during the same period. Parol evidence which tends to confirm this reading of the contract was received by the trial court. William Hale, Jr., who negotiated the lease with Trouard, testified that the right to exercise the option did not terminate at the end of the primary term, but continued during the month-to-month term of the lease and that Trouard could renew the lease under the option within 30 days of his receiving the “30 days written notice” under paragraph 8.

Heritage Square contends that the trial court erred in admitting this parol evidence. We find it unnecessary to rule on this allegation of error. Under our interpretation of the contract between the parties, we come to the same conclusion as to the meaning of paragraph 8 as was testified to by Mr. Hale. Thus, if the trial court did err in admitting the testimony, the error was harmless. If, on the other hand, paragraph 8 admits of other interpretations, then the parol evidence was admissible. One of the recognized exceptions to the parol evidence rule is that parol evidence is admissible to clarify ambiguity in a written contract to show the true intention of the parties. Williams v. Natchitoches Recreational Association, 395 So.2d 343 (La.App. 3rd Cir. 1980). Since the outcome of the case would be the same whether or not the parol evidence is admitted, we need not decide whether the evidence is admissible.

CONCLUSION

Civil Code Article 1809 governs the term for acceptance of an option to renew a lease. Under that article, the “circumstances of the case” are relevant in determining the intention of the parties when no specific term for acceptance is given. Therefore, the option is not invalid for failure to state a time period for acceptance.

However, a time period for acceptance of the option can be found in the contract according to our reading of it. Under this interpretation, supported by parol evidence admitted at trial, the tenant had 30 days from the giving of notice to vacate in which to exercise his option to renew the lease, even though this notice was given after the expiration of the primary term of the lease. Therefore, Trouard timely exercised his right to renew the lease under the option clause in the contract.

For these reasons, the ruling of the trial court is affirmed. All costs of this appeal are assessed to Heritage Square Investments, Inc.

AFFIRMED.

      . “A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.
      “One may purchase the right, or option to accept or reject, within a stipulated time, an offer or promise to sell, after the purchase of such option, for any consideration therein stipulated, such offer, or promise can not be withdrawn before the time agreed upon; and should it be accepted within the time stipulated, the contract or agreement to sell, evidenced by such promise and acceptance, may be specifically enforced by either party.”

      . The obligation of a contract not being complete, until the acceptance, or in cases where it is implied by law, until the circumstances, which raise such implication, are known to the party proposing; he may therefore revoke his offer or proposition before such acceptance, but not without allowing such reasonable time as from the terms of his offer he has given, or from the circumstances of the case he may be supposed to have intended to give to the party, to communicate his determination.


author: DOMENGEAUX, Judge.

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee, v. Paul K. BREAUX and Doris W. Breaux, Defendants—Plaintiffs in Reconvention—Third Party Plaintiffs—Appellants.
    No. 8479.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.

      Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for defendants-appellants.
    Taylor, Porter, Brooks & Phillips by Vernon P. Middleton, Baton Rouge, for plaintiffs-appellees.

      Before DOMEN GE AUX, SWIFT and YELYERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as Judge ad Hoc in this decision.

   DOMENGEAUX, Judge.

This is a suit brought by Ford Motor Credit Company (Ford Credit), plaintiff-ap-pellee, against Paul and Doris Breaux, defendants-appellants, to enforce a chattel mortgage via ordinaria and for a writ of sequestration. The Breauxs reconvened against Ford Credit, and brought third party actions against Ford Life Insurance Company (Ford Life), appellee, and Ford Motor Company. The trial court found in favor of Ford Credit and against the Breauxs, and awarded Ford Credit judgment in the amount of $3,409.15 plus 25% attorney’s fees, interest, and costs. The trial court dismissed the Breauxs’ reconven-tional demand and third party actions. The Breauxs have appealed against Ford Credit and Ford Life.

Paul and Doris Breaux purchased an automobile from New Roads Motor Company on August 2, 1975. The purchase was financed by way of a promissory note executed by the Breauxs and secured by a chattel mortgage on the automobile. Additionally, in conjunction with the chattel mortgage, the Breauxs purchased Credit Accident and Health Insurance through Ford Life.

Subsequent to the execution of the promissory note and chattel mortgage, New Roads Motor Company sold the note and its security to Ford Credit.

In March of 1976 Ford Life received notice of a claim of disability from Mr. Breaux resulting from an injury he received some time in 1975. Payments under the policy commenced upon such notice and continued through December of 1976.

Thereafter, the disability payments from Ford Life ceased, the promissory note became past due, and collection procedures were instituted by Ford Credit. In April of 1977 a Petition For Executory Process was filed by Ford Credit against the Breauxs. In response the Breauxs filed a Petition for Injunction to Enjoin the Executory Proceedings, and acquired a temporary restraining order to enjoin the seizure and sale until after a hearing on the merits. Following a hearing thereon, the Petition for Injunction was denied and the temporary restraining order dissolved. The Breauxs appealed the trial court’s ruling, but before the matter could be heard the parties agreed by joint stipulation to dismiss the appeal without prejudice to the rights of either party. Thereafter, Ford Credit instituted this present suit via ordi-naria, in which the Breauxs have reconvened, as aforementioned, against Ford Credit asking for, among other things, damages arising out of Ford Credit’s improper use of executory proceedings.

Appellants claim on appeal that the trial court erred in failing:

(1) To find a wrongful seizure of their automobile by writ of seizure and sale under the executory proceedings in the first suit;
(2) To hold Ford Life and its parent company, Ford Motor Credit, liable for failure to provide payment of and/or credit for the monthly payments under the credit accident policy, issued by Ford Life;
(3) To find that the writ of sequestration in the instant proceeding was wrongful.

WRONGFUL SEIZURE THROUGH EXECUTORY PROCEEDINGS

LSA C.C.P. Art. 2635 requires that to prove a right to use executory process a plaintiff must produce, among other things, “(2) the authentic act of mortgage or privilege importing a confession of judgment.” Appellants’ uncontradicted testimony reveals that the chattel mortgage sued on was not executed by them in the presence of any witnesses. This testimony was corroborated by the New Roads Motor title clerk. She testified that she could not remember whether or not she was present when the Breauxs signed the chattel mortgage. She estimates that on approximately three-fourths of the chattel mortgages that she signs as witness, the mortgagors are not present. The record conclusively shows that the chattel mortgage was not signed by the Breauxs in the presence of the witnesses therein. As such, it is not a properly authenticated document within the meaning of the terms as used in LSA C.C.P. Art. 2635. Ford Motor Credit Company v. Williams, 225 So.2d 717 (La.App. 1st Cir. 1969).

A seizure and sale under executory process on foreclosure under a chattel mortgage, which is not an authentic act, is illegal, giving rise to damages in tort. Mid-State Homes, Inc. v. Lartigue, 383 So.2d 99 (La.App. 3rd Cir. 1980); General Electric Credit Corporation v. Smigura, 371 So.2d 1363 (La.App. 3rd Cir. 1979).

We have reviewed the record in this case in an effort to ascertain an appropriate award for damages. After so doing, we feel that an award in the amount of $350.00 for mental anguish, humiliation, and inconvenience resulting from the illegal seizure of their automobile under executory process is proper, and accordingly, we reverse that portion of the judgment of the trial court which denied such damages.

Appellants additionally sought attorney fees as a result of the illegal seizure. An award of attorney fees, however, is not authorized for dissolution of wrongful seizure under executory process. General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La.1980).

LIABILITY OF FORD LIFE AND FORD CREDIT FOR DISCONTINUANCE OF DISABILITY PAYMENTS

Appellants contend that the mere existence of the credit accident and health insurance policy ipso facto gives rise to a suspension of the payments of the debt secured by the chattel mortgage upon the disability of the mortgagor-insured. In essence appellants claim that, once it is shown that insured was disabled, Ford Credit was obligated to look to Ford Life for payments, and not to the insured. We do not agree.

It is obvious that the mere existence of a policy of credit accident and health insurance does not automatically give rise to the suspension of a debt secured by the chattel mortgage upon the disability of the mortgagor-insured. Instead, there are simply two different contracts and different resulting rights in such a situation. The existence of the insurance policy does not operate to alter the contractual rights between the mortgagor and the mortgagee. Therefore, Ford Credit had a right to foreclose on their chattel mortgage upon default, and any claim for improper termination of insurance benefits exists exclusively between the insurer and the insured.

Appellants further contend that the termination of benefits when appellant was disabled were not justified, and were arbitrary, capricious, and without probable cause.

The Certificate of Insurance issued by Ford Life provides in paragraph 3 thereof:

“an insured Debtor will be considered totally disabled if, during the term of this insurance, he is prevented from performing all duties of his occupation or employment as a result of bodily injury sustained or sickness contracted and commencing while insured hereunder, which conditions require the insured Debtor to be treated regularly by a licensed physician other than himself.” (Emphasis added).

The Certificate further provides in paragraph 9:

“PROOF OF DISABILITY: Notwithstanding the previous acceptance of proof of total disability and the payment of any benefits therefor, Ford Life will have the right, at any time during the disability, to require proof of the continuance of such total disability. If the Debtor fails to furnish such proof of disability or if at any time such disability has terminated, no further benefit payments shall be made.” (Emphasis added).

Briefly, Ford Life’s procedure to obtain and continue a claim for disability benefits involves:

(1) completion and return of the disability forms (including continuation forms) forwarded by Ford Life to the insured; and
(2) some showing by the insured that he is being treated by a licensed physician.

In Hardin v. Mutual Life Insurance Company of New York, 12 So.2d 488 (La.App. 2nd Cir. 1943) the court held that where a life insurance policy required the insurer to grant disability benefits upon receipt and approval of proof of total and permanent disability, the giving of notice by the insured of disability was a “suspensive condition” or “condition precedent” to the fixing of liability or disability benefits on part of the insurer. A fortiori, continued proof of disability was required here.

The trial court found and the record substantiates that both Ford Life and Ford Credit continually counselled and assisted Mr. Breaux relative to the need for, and the substantive information contained on, the continuation forms. The testimony of Mr. Breaux revealed that he was aware that the disability forms sent to him each month had to be properly completed in order that Ford Life could continue disability payments. In September of 1976, Mr. Breaux voluntarily discontinued seeing his treating physician, Doctor Bolton. Mrs. Breaux testified that in the Spring of 1977, she forwarded several proof of disability forms to Doctor Bolton for completion but never received them back from him. On March 3, 1977, Ford Life received a continuation of disability form on which the section to be completed by the treating physician was incomplete. Specifically, the information received by Ford Life indicated that Mr. Breaux had not received medical treatment since September 27, 1976. Accordingly, Ford Life advised Mr. Breaux on March 10, 1977, and March 31, 1977, that he was no longer eligible for benefits as he was required by the Certificate of Insurance to be under the treatment of a licensed physician. At no time after March 31, 1977, did Ford Life receive any proof of disability from Mr. Breaux. In his reasons for judgment the trial judge stated that in his opinion it was the failure of Mr. Breaux to comply with his contract to furnish proof of continued disability which caused the default of the note held by Ford Credit. After reviewing the evidence, in view of the great weight to be given the factual conclusions of the trial court, we find no manifest error in the trial court’s finding that Ford Life was justified in discontinuing disability benefits. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

WRONGFUL SEIZURE THROUGH WRIT OF SEQUESTRATION

LSA C.C.P. Art. 3571 provides:

“Grounds for Sequestration.
# * # * * #
(c) When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.”

Appellants contend that the seizure under the writ of sequestration was wrongfully issued and should have been dissolved by the trial court. They base their contention on the fact that Ford Credit failed to show that the Breauxs would “conceal, dispose of or waste the property . . . during the pend-ency of the action.”

The article does not require a showing by the plaintiff that the defendant will conceal, dispose of or waste the property. On the contrary, a seizure by sequestration is proper “if it is within the power of the defendant to conceal, dispose of, or waste the property . . . during the pendency of the action.” It is obvious that to allow defendants continued possession of the collateral would afford them the opportunity to conceal, dispose of or waste the property, therefore we find no wrongful seizure by sequestration.

DECREE

For the foregoing reasons, the judgment appealed from is reversed in part, and it is hereby Ordered that there be judgment herein in favor of appellants and against appellee, Ford Motor Credit Company, in the amount of $350.00, with legal interest thereon from date of judicial demand until paid. In all other respects the judgment is affirmed.

Costs of this appeal are taxed one-half (V2) to appellants and one-half (V2) to appel-lee, Fort Motor Credit.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . We feel that it is significant that the error which caused the defect in the executory proceedings was minor in nature and completely unknown to the seizing mortgagee. Likewise, the measure of damages sustained is negligible due to the fact that a proper seizure of the áutomobile could have been, and in fact later was, achieved by writ of sequestration.

      . In order for the form to be completed properly the insured must fill out part of the form and have his treating physician complete the remainder. Once the claim is authorized the insured must follow-up, to continue benefits, by completing forms for continued disability in a like manner.


text:
    Joseph GREEN, Jr., Plaintiff-Appellant, v. Claudia M. ROLLINS, et al., Defendants-Appellees.
    No. 8484.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Simmons & Nelson, Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Levingston, Tynes & Liles, Maurice L. Tynes, Lake Charles, for defendants-appel-lees.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.
   YELVERTON, Judge.

A jury awarded Joseph Green, Jr., $1500 in damages. He appeals, claiming that the award is clearly inadequate. The amount of the award is the only issue before us. Our review of the record reveals no manifest error. We affirm.

The accident from which the case arises occurred in the City of Lake Charles on June 20, 1979. Green’s car was in collision with one driven by the defendant, Claudia M. Rollins, who was insured by the other defendant, Allstate Insurance Company. Liability was stipulated. The Rollins’ ear was undamaged. Green’s car was damaged in the amount of $650. Allstate paid Green the property damage before trial.

After he got home following the accident Green began to experience arm and neck pain. On some undisclosed later date he made an appointment to see Dr. William Akins, an orthopedist. Dr. Akins examined him on July 16, 1979. The doctor’s initial impression at this examination was that the patient had a mild straining injury of the cervical spine and a contusion of the flexor muscles of the left forearm. Dr. Akins saw plaintiff again on September 4, 1979, at which time there was no further complaint of neck pain. He continued to have a left arm problem. However, this problem was now in a different location from that described by the patient on his first visit. At the time of the first visit, the complaint of pain involved the inner aspect of the left forearm. On the second visit, the complaint was referable to a different muscle group, the left biceps area in the front part of the upper arm, with pain spreading down to the outer part of the forearm just below the elbow joint. This new complaint was typical of what the doctor described as a tennis elbow. Dr. Akins saw Green three more times: March 10, 1980; April 14, 1980; and October 17, 1980. Between the March and April visits the doctor referred the patient to a physical therapist for a series of treatments. These treatments consisted of electrical stimulation, whirlpool, and stretching exercises. When he last saw the doctor in October of 1980, plaintiff told Dr. Akins his left elbow was still bothering him, but there was some improvement. Green testified at the trial that the left elbow was still hurting.

Green traced his left tennis elbow to the accident of this case. The jury learned while he was on cross-examination that he also had a tennis elbow of the right arm. The right arm problem began in 1978, before this accident happened. The right arm was being treated by another orthopedist, Dr. David Drez of Lake Charles. In May of 1980 Dr. Drez performed an operation on the right arm. The treatment of the right arm by Dr. Drez was taking place during the same period of time that plaintiff was seeing Dr. Akins for the claimed injury to the left arm. There was no claim made that this accident had anything to do with the right tennis elbow. Green testified at trial that the right elbow also was still troubling him.

The jury returned a general verdict awarding a total of $1500. Although the award was not itemized, it can be assumed that the jury gave consideration to plaintiff’s claims for special damages, as it was instructed by the trial judge to do so. Dr. William Akins’ bill for treatment came to a total of $321. The bill for the services rendered by the Lake Charles Physical Therapy Clinic was $120. The jury may not have included all of the medical expenses in the award if it concluded, as it apparently did, that the left tennis elbow was not causally related to the accident. Allstate, the insurer of the appellee, paid the $650 property damage to Green before suit was filed. Since plaintiff admitted this to the jury, undoubtedly it did not include that item in its award. Green testified that he lost 10 days in wages. There was no other proof of wage loss although plaintiff was at all relevant times regularly employed by the same employer in Lake Charles and proof should have been easily available. The jury probably concluded that plaintiff suffered no lost wages.

Civil Code Article 1934(3) provides that, “. . . much discretion must be left to the trial judge or jury”, in the assessment of general damages. A jury award for damages will not be modified on appeal unless it can be determined that the amount awarded was clearly wrong. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

Based on our thorough review of the record, we cannot say that the award was clearly wrong. The neck sprain was apparently of short duration. The circumstance of plaintiffs’ having double tennis elbows, one clearly not related to this accident, but caused at work, and the other not revealed to his doctor until three months after the accident, might well have been a significant factor in the jury’s evaluation of the causative relationship between the left arm condition and the accident. Thus, there is justification in the record for the jury to believe that there was very little pain and suffering resulting from the neck injury, and a highly suspect linkage between the accident and the left tennis elbow. The assessment of credibility of witnesses is best left to the trier of fact. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    D. C. MARBURGH, Plaintiff-Appellant, v. MANAGAN CARROLL BUILDING MATERIALS, INC. Defendant-Appellee.
    No. 8485.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Miguez & Leckband, James Miguez, Lake Charles, for plaintiff-appellant.
    Hunt, Godwin, Painter & Roddy, E. C. Hunt, Jr., Lake Charles, for defendant-ap-pellee.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as Judge ad Hoc in this decision.

   DOMENGEAUX, Judge.

D. C. Marburgh (Marburgh), brought suit against Managan Carroll Building Materials, Inc. (MCBM), for damages resulting from certain defects in the construction of a home which the latter constructed for the former under contract. From a judgment of the trial court sustaining MCBM’s exception of res judicata, Marburgh has appealed. We affirm.

MCBM entered into the building contract with Marburgh in October, 1976. On October 7, 1977, Marburgh accepted the house complete “as is”, in writing. On October 11, 1978, in a suit entitled “D. C. Marburgh v. Managan Carroll Building Materials, Inc.”, No. 78-5450, in the Fourteenth Judicial District Court, Parish of Calcasieu, State of Louisiana, plaintiff-appellant Mar-burgh sought damages against the appellee, MCBM for breach of contract. The petition in that action averred that MCBM breached the house building contract by improperly constructing the fireplace. The action proceeded through trial and judgment was signed on June 12, 1979, whereby Marburgh was awarded damages from MCBM in the sum of $5,700.00.

The present action between the same parties was filed November 5, 1979, and concerns the same building contract which was involved in the prior suit from which MCBM was made to pay damages to Mar-burgh. The pleadings of Marburgh indicate that he and his wife had knowledge of certain defects in the home in October of 1977, a year before suit No. 78-5450 (the first suit) was instituted. Our reading of the record indicates that no evidence of any of these defects were presented during the trial of the aforementioned matter.

The only issue on appeal is whether or not the trial court erred in sustaining defendant-appellee’s exception of res judi-cata.

Civil Code Article 2286 specifies the essential elements of res judicata. (The thing adjudged):

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must by founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

In a well written opinion the trial judge discussed the elements of the aforementioned article and made the following observations which we adopt.

“In this case two of the three necessary elements of res judicata are readily apparent: the demand is between the same parties and formed by them against each other in the same quality, and the demand is founded on the same cause of action, the alleged defaults by defendant to properly perform the building contract. There remains for resolution the third element, whether the thing demanded is the same.
The first suit was based upon the failure of defendant to properly complete the contract . . . The court was called upon to resolve that issue after a complete trial and in fact, found defendant had not done so and awarded damages in the sum of $5,700.00.
In the instant action the court is called upon to determine if defendant failed to complete the contract by failure to properly do certain other work provided for by the contract, tacitly a part of the contract to use acceptable material and the work to be done in a workmanlike manner, of which plaintiff is estopped to deny he was aware before the filing of the first suit. This action is simply an extension of the first suit and fulfills the third requirement of the essential elements of the principal of res judicata— that the thing demanded be the same. More simply stated, the court is and has been requested, in both suits, to adjudge that defendant failed to properly perform the contract; the only difference being the items specified. This is not a situation where the cause of action for the second suit arose after the first suit was filed or tried. There exists in these two actions an identity of cause.”

Article 425 of the Louisiana Code of Civil Procedure further provides the following:

“An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

While Louisiana law strictly applies the principles of res judicata it likewise prohibits piecemeal litigation in the interests of judicial economy. Marburgh’s original suit was filed in October of 1978. The trial in this matter was not held until June of 1979, some seven months later. It is clear from our reading of the record that Marburgh had ample time to amend his claim for damages, and we discern no acceptable explanation for his failure to state all of his claim for damages in the first suit.

For the above and foregoing reasons, the judgment of the trial court sustaining the defendant’s exception of res judicata is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Audrey Ann JORDAN, Plaintiff-Appellee, v. Glen R. JORDAN, Defendant-Appellant.
    No. 8511.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Robert C. Johnson, Kisatchie Legal Services, Natchitoches, for plaintiff-appellee.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

       Judge Henry L. Yelverton, Fourteenth Judicial District Court, Parish of Calcasieu, presided as Judge ad Hoc in this decision.

   DOMENGEAUX, Judge.

The defendant-appellant, Glen Richard Jordan, brings this appeal from the trial court’s judgment refusing to terminate or reduce the right of his former spouse, Audrey Ann, to post divorce alimony. We affirm.

On January 12, 1979, Audrey Ann, after having filed suit for separation, filed a supplemental petition for divorce against Glen. On February 15, 1979, the trial court rendered judgment in favor of Audrey Ann granting her a final divorce and awarding her post divorce alimony in the amount of $35.00 per week commencing February 16, 1979. Subsequent to the above mentioned decree, on March 4, 1979, Audrey Ann filed a rule to make past due alimony executory. This resulted in a judgment in her favor. Following that judgment, Glen, who was gainfully employed at the time, paid each weekly installment until December, 1979, and shortly thereafter, Audrey Ann filed another rule to make past due alimony ex-ecutory alleging that Glen was six (6) weeks in arrears on his alimony payments to her. On December 12, 1979, Glen filed a rule to terminate or reduce the alimony which the court had previously condemned him to pay. A hearing on both rules was subsequently held and the court denied Glen’s request for either a reduction or termination of post divorce alimony. On May 15, 1980, Audrey Ann filed still another rule alleging that Glen was some ten (10) weeks in arrears on his alimony payments. Pursuant to hearing held, the trial court again rendered judgment in favor of appellee. On July 1, 1980, Glen filed another rule to have the court reduce or terminate the permanent alimony. After a hearing on September 4, 1980, the trial court again denied his request for either a reduction or termination.

On December 3, 1980, Audrey Ann filed another rule to make past due alimony ex-ecutory. A hearing was held on December 15, 1980, wherein Glen was adjudged in contempt of court and given a deferred sentence as long as he maintained his alimony payments and liquidated his arrears. On January 27, 1981, Audrey Ann filed yet another rule, this time to have Glen held in contempt for failing to make his alimony payment to her for the month of January, 1981. Glen was served with a copy of this rule on February 2, 1981, and on February 6, 1981, filed another rule to terminate or reduce the alimony. A hearing was held on this rule on February 10, 1981, wherein the court again rendered judgment denying Glen’s request for either a reduction or termination. The judgment was signed in chambers on March 23, 1981, and it is this judgment from which Glen has perfected this devolutive appeal.

The only issue on appeal is whether the trial court erred in its denial of appellant’s request for either a reduction or termination of post divorce alimony.

Article 160 of the Louisiana Civil Code provides the following:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

Article 232 of the Louisiana Civil Code further provides:

“When the person who gives or receives alimony is replaced in such a sitúation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.”

An award of alimony previously fixed and determined is not subject to reduction unless a change of circumstances in the person obligated to pay or the person to whom the payments are made can be demonstrated. Zara v. Zara, 204 So.2d 76 (La.App. 4th Cir. 1967); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). The trial court has wide discretion in matters concerning alimony and his conclusion on such matters should not be disturbed except for manifest error. Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir. 1979).

Our review of the record reveals the following facts. The appellant Glen is 39 years of age, in fair health and has remarried for a third time. In addition, the evidence reflects that appellant is supporting several individuals of his present and past marriages. The appellee Audrey Ann is a single person who supports herself and one (1) minor child of a previous marriage. Appellant argues that his obligations resulting from his subsequent marriage impedes his ability to pay the alimony awarded appel-lee. The trial judge evidently placed little emphasis on the expenses of the appellant’s second marriage. He considered this same argument at previous hearings. Such expenses may, under some circumstances be taken account of in determining the extent of the husband’s liability. Here, however, we find no error on the part of the trial judge for not considering the expenses of appellant’s second marriage. Sonfield v. Deluca, 385 So.2d 232 (La.1980); Marcus v. Burnett, 282 So.2d 122 (La.1973).

From the record, it is also readily apparent that the appellant’s and the appel-lee’s financial situation have not so changed that the trial court should reduce or terminate permanent alimony. On all occasions in which the trial court ruled on the question of reduction and termination of alimony, the facts have remained substantially the same. We find that the trial court did not commit manifest error or abuse its wide discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to Glen Richard Jordan.

AFFIRMED.

      . His present wife receives some $500.00 per month in social security benefits for her minor children, who are also included among the individuals in appellant’s household.