author: GARRISON, Judge. SCHOTT, Judge, SAMUEL, Judge,

text:
    METROPOLITAN NEW ORLEANS CHAPTER OF the LOUISIANA CONSUMER’S LEAGUE, INC., Nancy Peters, wife of/and Stephen I. Dwyer, Kathy Sherman, Wife of/and Richard R. Sims, and all others similarly situated v. The COUNCIL OF the CITY OF NEW ORLEANS and New Orleans Public Service, Inc.
    No. 11607.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 4, 1982.
    Rehearing Denied Jan. 14, 1983.
    Stephen M. Irving, Baton Rouge, and John Robbert, New Orleans, for plaintiffs-appellants.
    Salvador Anzelmo, City Atty., Jacob Tar-anto, III, Deputy. City Atty., Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., Norris S.L. Williams and James P. Farwell, New Orleans, for defendants-appellees.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s class action suit to recover 26.2 million dollars in allegedly improper Fuel Adjustment-Charges (hereinafter FAC). The trial court dismissed the case on a directed verdict in favor of the defendants, the City Council of the City of New Orleans (hereinafter City Council) and New Orleans Public Service, Inc. (hereinafter NOPSI).

The Metropolitan New Orleans Chapter of the Louisiana Consumers’ League, Inc. (hereinafter Metro) filed suit seeking an injunction mandating the City Council to hold monthly public hearings prior to allowing NOPSI to assess a fuel adjustment charge and seeking a 26.2 million dollar refund of all fuel adjustment charges assessed from January 1, 1973 to the present.

On appeal plaintiffs-appellants allege that the trial court erred by applying an incorrect standard for a directed verdict and that the trial court erred in granting a directed verdict in light of the evidence presented.

C.C.P. Article 1810 provides as follows: “A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. “B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

We note that the trial judge has much discretion in determining whether or not a motion for directed verdict should be granted. Broussard v. Missouri Pac. R. Co., 376 So.2d 532, 536 (La.App.3rd Cir.1979).

In Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir. 1980) this court further discussed C.C.P. Art. 1810(B) as follows:

“Before reviewing plaintiff’s evidence we must determine what weight or standard the trial judge sitting without a jury should accord plaintiff’s evidence under Art. 1810(B). Able counsel for plaintiff strongly advocates that evidence should be weighed in the light most favorable to plaintiff’s case. The alternative is for the trial judge to evaluate plaintiff’s case in chief based on a preponderance of the evidence.
“We are satisfied that this question is res nova. LSA-C.C.P. Art. 1810 is of very recent vintage (1977). The first paragraph (A) provides for a directed verdict in the District Court sitting with a jury; and paragraph (B) allows a directed verdict by the trial judge sitting without a jury.
“Unfortunately, Art. 1810 does not establish any standard for the trial court to use in weighing evidence on a defendant’s motion for dismissal.
“Plaintiff urges the holding in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979) which said that all of the evidence should be viewed in the light most favorable to the party opposing the motion; if there is evidence of such quality and weight that reasonable and fair minded persons in the exercise of impartial judgment might reach different conclusions, a motion for directed verdict should be denied. Campbell, 373 So.2d at 239. However, that case does not apply here since the decision involved a jury trial and application of paragraph (A) under Art. 1810. The Third Circuit in Campbell adopted the philosophy of our federal courts in interpreting Art. 1810(A) by looking to the parallel provisions of F.R.C.P. Rule 50(a). Both this court and the First Circuit have followed that same reasoning in jury cases on directed verdicts. See: Ragas v. Argonaut Southwest Ins. Co., 379 So.2d 822 (La. App. 4th Cir., 1980); Perkins v. American Machine & Foundry Co., 385 So.2d. 492 (La.App. 1st Cir.1980). Application of this federal counterpart was made in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir.1969) which said that the trial judge, when considering a motion for directed jury verdict, may grant the motion only when ‘facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict .... ’ 411 F.2d at 374. “Plaintiff, in argument and brief, refers to a number of decisions in other states which support the general proposition that the trial court must consider plaintiff’s evidence in a light most favorable to the party against whom the motion is directed. However, all were jury cases applicable to the standard of paragraph (A) of Art. 1810. Is the severe restriction on the trial judge under (A) applicable here when we are not concerned with plaintiff’s right to a jury determination of the facts?
“Article 1810(B) basically tracts the language in the second sentence of F.R.C.P. Rule 41(b). We have no doubt this procedural innovation found its way into our state statutes via the conceptual origin in the federal system. One solution would be to utilize the logic in Madison v. Traveler’s Insurance Company, 308 So.2d 784 (La.1975) which held that when state rules of procedure are obtained from federal rules the state courts may look for guidance to federal decisions which have interpreted identical provisions. In Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir.1970) the Fifth Circuit in referring to F.R.C.P. Rule 41(b) said: ‘The Judge should now ordinarily evaluate the evidence without making special inferences in the Plaintiff’s favor. The Court should go ahead and resolve the case on the basis of preponderance of the evidence.’ 427 F.2d at 1086.
“In civil cases, following a complete trial, the trial judge has the responsibility to weigh and evaluate all evidence and ultimately render a decision based upon a preponderance of evidence. Suppose here following the plaintiff’s case in chief the defendant rested without presenting any evidence. Then the trial court would render its decision based upon the same facts it had when plaintiff rested. The outcome in this example would be the same as we now have before us with the granting of a directed verdict. Realistically, this defendant would not offer any evidence if this case was remanded for further proceedings. The district judge must eventually render a decision and it is reasonable and logical for him to apply the same standard to evidence following a motion for directed verdict or following a completed trial. Despite the harsh results of a directed verdict, we have no alternative but to apply the standard of preponderance of evidence under the provisions of Art. 1810(B).” (at 1012-13).

The main thrust of Metro’s argument is that by controlling the amount and interest rate for loans made by NOPSI to its subsidiary, Systems, Fuel, Inc., by allocating certain costs into one company or the other, by creating unnecessary, repetitive and extraneous executive and administrative branches and personnel in both companies, by allocating non-fuel costs of operation and maintenance into the fuel adjustment cost formula, and by engaging in the costly and risky business of oil field exploration, NOP-SI can artificially inflate or decrease its “cost” and funnel those elements through the fuel-adjustment clause in an attempt to circumvent public regulation.

As seen by the above statement of Metro’s allegations, the instant case involves a massive amount of proof in the nature of business records, detailed accounting and “tracing” of funds, examination of the work performed by various departments of both companies, the hier-archial structure of both companies as well as the entire Mid-South System, and an examination of fuel purchases on a case-by-case basis. That proof was simply not presented at trial. We find, as did the trial court, that plaintiff failed to carry its burden of proof. Accordingly, the trial judge properly granted defendants’ motions for a directed verdict.

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

SCHOTT and SAMUEL, JJ., concur.

SCHOTT, Judge,

concurring:

The injunctive relief sought by plaintiffs to require the City Council to hold monthly public hearings with respect to the imposition of NOPSI’s fuel adjustment charge on consumers is based on this court’s decision in Bagert v. Moreau, 325 So.2d 702 (La.App. 4th Cir.1976).

In Bagert the trial court had issued a peremptory writ of mandamus ordering the Council to hold such hearings as required by § 4-1604 of the Home Rule Charter of the City of New Orleans. This court reversed holding that 1) § 4-1604 was not applicable because its notice provisions did not apply to consumers; but 2) § 3-112(5) in conjunction with § 4-1604 would require the council to engage in the procedure of resolution or ordinance passing with attendant notice by publication in order to impose NOPSI’s fuel adjustment clause on consumers if 3) plaintiff could establish that NOPSI has control over the amount of the fuel adjustment charges to be paid by consumers. The court reasoned that these charges would be a rate or price change by NOPSI if it controlled them.

However, because the evidence on the nature of the charges was “incomplete” the court remanded the case to the trial court “for the limited purpose of hearing evidence on: what a fuel adjustment cost is, what governmental agency or supplier determines the cost, whether NOPSI .... exercise[s] control over the amount which is passed on to the consumer .. .. ” Plaintiffs in the instant case contend they have met the requirements of Bagert and thus established the requirement for a public hearing.

The fuel adjustment charge is a fairly simple concept. Built into the authorized rates NOPSI charges for electricity is a base cost for the fuel consumed in generating electricity. However, because fuel costs fluctuate over such a wide range on a day to day basis and because they are such a substantial component in the cost of producing electricity NOPSI is authorized to pass on to its consumers the increase over the base cost of fuel built into the rates.

In practice this simple concept becomes highly technical and complex. In order to supply a vast number of consumers with electricity NOPSI continuously consumes a tremendous supply of fuel. It is faced with wide fluctuations of demand for electricity which produces shortages and surpluses of fuel on a day to day basis, it must maintain extensive facilities for handling and storage of fuel, it must cope with a market for fuel which fluctuates wildly and unpredictably, it must make choices as to the type of fuel to be burned, i.e., fuel oil or gas, and it must restrict its purchases of oil to qualities consistent with sound environmental considerations. The record establishes that NOP-SI’s primary concerns are to keep its customers supplied with their electrical requirements by purchasing the necessary amount of fuel for this purpose and to pay the lowest possible price for the fuel over the long run.

In order to meet these concerns NOPSI and three related utilities in the Middle South System established a wholly owned subsidiary, Systems Fuel, Inc., a non profit corporation, which purchases fuel oil in great volume and resells it to its parent companies providing electricity throughout Louisiana, Mississippi and Arkansas. But the task of supplying fuel becomes even more complex because of variations in the amount of fuel oil available to the operating companies and its cost on a daily basis.

At times NOPSI must switch to burning natural gas instead of fuel oil so that it maintains a gas purchase contract with United Gas Company under the terms of which the price of the gas is pegged to the cost of fuel oil charged by Systems Fuel, Inc. As a further complication, the other operating companies frequently find themselves with a surplus of electricity generated for the most part from fuel oil sold to them by Systems Fuel, so that NOPSI purchases electrical energy from its sister companies. An intricate system of exchanging electrical energy among the four companies to meet changing demands is managed by a committee composed of representatives of the companies. Finally, despite all of these elaborate arrangements, NOPSI must still, from time to time, make direct purchases of fuel and electrical energy from outside sources to keep its customers supplied.

Thus, the fuel adjustment charge is based not only on the cost of raw fuel purchased by NOPSI but also on the fuel cost component of the price of electricity purchased by NOPSI and resold to its customers.

Most of plaintiffs’ evidence was centered around NOPSI’s relationship with Systems Fuel. They established that NOPSI makes loans to Systems which in turn includes the interest paid to NOPSI as a component in the cost of its fuel. Systems pays the salaries of some NOPSI employees who handle the fuel before it is consumed and Systems pays rent to store and handle fuel on NOP-SI property before its consumption. Such “administrative” costs are also components of the cost of Systems’ fuel. Plaintiffs also produced some vague testimony that Systems incurred expenses in exploring for oil unsuccessfully and included this expense as a component in its fuel cost.

Much of plaintiffs’ evidence was intended to prove that the interrelationship among the Middle South Companies resulted in decisions about the exchange of generated electricity which are not in the best interests of NOPSI customers but, rather, were to the economic advantage of the companies.

As I interpret Bagert, it was plaintiff’s burden of proof in this case to establish that the fuel adjustment charge is a mechanism whereby NOPSI controls the amount which is passed on to its customers in such a way that NOPSI derives additional revenue and profit over and above that which is included in the rate structure approved by the council. Plaintiffs could not prevail if the evidence showed that the cost of fuel was controlled by a governmental agency or supplier. I am satisfied that plaintiffs did not prove their case. On the contrary, the fuel adjustment clause is controlled by suppliers in the market place and NOPSI’s arrangements make it possible for it to purchase fuel at the lowest practical price which is passed on to consumers. NOPSI exercises control, but not in the sense prohibited by Bagert. Its control saves — not costs — money for consumers.

At the trial plaintiffs produced an expert witness in the field of utility economics who summarized the position of plaintiffs in the case. He repudiated any notions that NOP-SI was abusing its customers in any way, but stated:

“.... when these costs are passed through the fuel adjustment clause essentially or effectively they are missing any regulatory overview and we will never really know if consumers have been overcharged or not, which is the point. The point is not necessarily that the charges have been too great or there have been some irregularities, but the point is if we don’t have the hearings we simply don’t know ....”

When further questioned this witness made it clear that he was committed to public hearings as the only proper mechanism to regulate utilities and that audits by the Council would not suffice.

There are several problems with this witness’s position: First, in Bagert we held that public hearings were not necessarily required as monitoring devices for fuel adjustment charges; second, plaintiff’s evidence established that the City does audit NOPSI’s records on an ongoing basis to protect against overcharges; and, third, in the light of plaintiff’s evidence monthly hearings on NOPSI’s fuel adjustment charges would be exercises in futility with the only logical result each time being approval of the charge. In the event that NOPSI should abuse the privilege of the fuel adjustment charge and this abuse is detected and proved consumers would have a cause of action for a refund, but no useful purpose would be served by having public hearings on the charges on an ongoing basis.

The trial court dismissed plaintiff for the principal stated reason that the decision by the Council to allow the fuel adjustment clause was an administrative one with which the court should not interfere unless the decision was arbitrary. The court did not allude to the Bagert case and did not reach the conclusion as I have that the fuel adjustment is not “a rate or price change requiring notice and a public hearing as contemplated in the charter.” This reasoning by the trial court is also the main thrust of NOPSI’s argument, to wit, authorization or adoption of the fuel adjustment clause is a policy decision of the regulatory body with which the courts should not interfere. While there is merit to this position I see no need to address it because the case is controlled by Bagert as a prior opinion of this court and applying the law of that case to the facts of this one the result reached by the trial court was correct.

As a postscript, the fuel adjustment clause has been attacked in many jurisdictions throughout the United States without success, and these cases are informative and instructive. See State Ex Rel. Utilities Commission v. Edmisten, 291 N.C. 327, 230 S.E.2d 651 (1976). In City of Norfolk v. Virginia Elec. & Power Co., 197 Va. 505, 90 S.E.2d 140 (1955) the court made the following observation which is apropos:

“The proposed escalator clause is nothing more or less than a fixed rule under which future rates to be charged the public are determined. It is simply an addition of a mathematical formula to the filed schedules of the company under which the rates and charges fluctuate as the wholesale cost of gas to the Company fluctuates. Hence, the resulting rates under the escalator clause are as firmly fixed as if they were stated in terms of money.”

The evidence of plaintiffs in this case leads me to conclude that NOPSI’s fuel adjustment clause, although highly complex in its implementation, is essentially the same as that described above by the Virginia Court and is not “a rate or price change requiring notice and a public hearing.”

SAMUEL, Judge,

concurring.

For the reasons expressed by Judge Schott in his concurring opinion, I respectfully concur.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    SALES TAX COLLECTOR, St. Charles Parish, Louisiana v. ECKCO FABRICATORS, INC.
    No. 5-226.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Leon C. Vial, III, Hahnville, for Sales Tax Collector, St. Charles Parish, plaintiff-appellee.
    Edwin O. Schlesinger, Steeg & O’Connor, New Orleans, for Eckco Fabricators, Inc., defendant-appellant.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOUTALL, Judge.

This is a suspensive appeal by Eckco Fabricators, Inc., defendant-appellant, from an interlocutory judgment on trial of the exceptions of venue and vagueness. From a denial of the exception of improper venue, Eckco appeals. We reverse and remand on the issue of venue, and amend the judgment as to the exception of vagueness.

The instant appeal arises from a suit by St. Charles Parish to collect sales taxes allegedly due from Eckco for an eight year period beginning in 1973. Prior to answering the suit, defendant Eckco simultaneously filed a declinatory exception of improper venue and a dilatory exception of vagueness. The trial judge of the 29th Judicial District Court ruled that the filing of the dilatory exception along with the exception to venue constituted a general appearance, thereby waiving the exception to venue, according to C.C.P. Arts. 44 and 925. In the alternative, the trial court found that Eckco was doing business in St. Charles Parish, and was thus amenable to suit there. Eckco has appealed and appellee has filed a motion to dismiss the appeal on the grounds that this interlocutory judgment is not appealable.

APPEALABILITY OF INTERLOCUTORY JUDGMENT

Under Article 2083 of the Louisiana Code of Civil Procedure, only interlocutory judgments which will cause “irreparable injury” to the litigant may be appealed.

A recent case by the Louisiana Supreme Court clearly indicates to us that the overruling of an exception to venue is a judgment which may be appealed under the rationale of irreparable injury. In Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, n. 1 (La.1981) the Court stated:

“To reason that there is no irreparable injury is to decide that relator has no right to appeal under C.C.P. Art. 2083. (In that context irreparable injury occurs if any error in the ruling cannot as a practical matter be corrected on appeal. For example, once the trial court overruled an exception to the venue and the case is tried on the merits in the wrong venue, an appellate court has no practical means of correcting the error on appeal.)”

Since the facts in this case are identical to those envisioned in the Herlitz footnote, and as a practical matter nothing can be done on an appeal of the trial of the merits to correct this procedural error, this Court, under the Herlitz rationale, should consider this appeal. See also Erdey v. The American Honda Company, 404 So.2d 1351 (La. App. 1st Cir.1981) (wherein our brethren of the First Circuit have reached the same conclusion.)

Therefore for the reasons discussed above we deny the motion to dismiss of appellee St. Charles Parish, and we will address the merits of appellant’s venue claim.

Two issues regarding venue must be dealt with. The first is the trial court’s ruling that appellant had waived its decli-natory exception of venue by filing with it a dilatory exception of vagueness. The controlling articles of the Code of Civil Procedure on this issue are Arts. 925 and 928, which state as follows:

“Art. 925. Objections raised by declina-tory exception; waived
The objections which may be raised through the declinatory exception include, but are not limited to, the following:
(1) Insufficiency of citation;
(2) Insufficiency of service of process;
(3) Pendency of another action between the same parties, in the same capacities, on the same cause of action, and having the same object;
(4) Improper venue;
(5) The court’s lack of jurisdiction over the person of defendant; and
(6) The court’s lack of jurisdiction over the subject matter of the action.
When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order.
When a defendant makes an appearance, all objections which may be raised through the declinatory exception, except the court’s lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein.” (Emphasis supplied)
“Art. 928. Time of pleading exceptions The declinatory exception and the dilatory exception shall be pleaded prior to answer or judgment by default. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.” (Emphasis supplied)

Plainly these two articles require simultaneous filing of the declinatory and dilatory exceptions. A careful reading of C.C.P. Art. 925 reveals that when a defendant makes an appearance he must raise his dec-linatory exceptions at that time or he will be considered to have waived them. In the case at bar the defendant raised the decli-natory exception both when it made its appearance, in accordance with C.C.P. Art. 925 and in the proper manner under C.C.P. Art. 928. Therefore appellant cannot have waived its exception to venue by expressly complying with these articles.

Our brethren in the Fourth Circuit have opted for a literal reading of these articles, as do we. See Landry v. Landry, 252 So.2d 549 (La.App. 4th Cir.1971). In our view this is the soundest interpretation. Any other construction fosters a caselaw-created pitfall which is unapparent from the face of the articles. Contra Acme Refrigeration v. Caljoan, 346 So.2d 743 (La.App. 1st Cir. 1977).

We also note that the case of Martel v. Block, 154 La. 869, 98 So. 400 (La.1923), cited by the trial court for the proposition that the filing of an exception of vagueness represents a general appearance, was decided many years before the promulgation of the Code of Civil Procedure. And as appellant has aptly pointed out, current Article 928 had no counterpart in the old Code of Practice. The Martel case was not decided under our current law and thus we are not bound to consider it to be controlling on the issue before us. Therefore we hold that a simultaneous filing of declinatory and dilatory exceptions does not result in the waiver of the declinatory exception.

We now reach the crux of this appeal, namely we must determine whether St. Charles Parish is the proper venue for this action against Eckco Fabricators, Inc.

The trial judge, in overruling defendant’s exception to venue, stated, “... Defendant admits doing business through offices located in Orleans, Jefferson, and St. Charles Parish.” Our review of the testimony of Elroy Eckhardt, President of Eckco Fabricators, reveals that Mr. Eckhardt testified that Eckco maintains registered offices in Orleans and Jefferson Parishes, and has a plant in St. Tammany Parish. He specifically denied that Eckco had ever had an office in St. Charles Parish, though it does have several large industrial customers located there. Eckhardt testified that all Eckco products were sold F.O.B. their plant in St. Tammany, or contracted out to independent trucking concerns for delivery. Thus while Eckco has no business office in St. Charles Parish, it does have customers there who buy and use Eckco products there.

We do not propose to make any comments concerning the merits of the case or the applicability of the tax. We are only concerned with venue of the suit. For the purposes of determining venue, it is not the existence of customers and use of the product which controls, but rather the parish or parishes where the registered offices, or business offices or establishments of the corporation are located. Article 42 of the Louisiana Code of Civil Procedure states in pertinent part:

“The general rules of venue are that an action against:
(2) A domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located ...”

Furthermore La.C.C.P. Art. 77 provides for the situation where there are business offices in more than one parish:

“An action against a person having a business office or establishment in a parish other than that where he may be sued under Article 42, on a matter over which this office or establishment had supervision, may be brought in the parish where this office or establishment is located.”

At trial there was uncontradicted testimony by Eckco’s president that the company has no office, registered or otherwise, and no business establishment in St. Charles Parish. Therefore in light of the foregoing Code of Civil Procedure articles, St. Charles Parish is not a venue where this action may be brought. We reverse and remand to the trial court for transfer to a proper venue. C.C.P. Art. 121.

One final matter on appeal requires disposition. Regarding the dilatory exception of vagueness, the trial court ordered Paragraph 5 of plaintiff’s petition to be amended. This is obviously a typographical error, since both parties stipulated that Paragraph 3 required amendment to better describe the cause of action.

Therefore, the judgment overruling defendant’s exception to venue is reversed; the exception of venue is maintained, and this matter is remanded to the trial court for the purpose of permitting the plaintiff to transfer this action to a court of proper venue within 30 days from the effective date of this judgment, under penalty of dismissal of suit. Additionally, the judgment of the trial court regarding the dilatory exception of vagueness is amended to require amendment of Paragraph 3 of plaintiff’s petition, in accordance with the agreement of counsel.


text:
    CLASCO CONSTRUCTION COMPANY, INC. v. LAND PLANS, INC. and Banner Corporation.
    No. 5-216.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.
    Lolis Edward Elie, Elie, Ferrouillet & Ferrouillet, New Orleans, for Clasco Const. Co., Inc., plaintiff-appellant.
    Calvin J. Laiche, Westwego, for Land Plans, Inc. & Banner Corp., defendants-ap-pellees.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   BOUTALL, Judge.

This was a suit on breach of contract by Clasco Construction Company against Banner Corporation and Land Plans, Inc., two development corporations owned and operated by the Wiegand family. Plaintiff Clasco appeals the trial court’s judgment in favor of defendants Banner and Land Plans. We affirm.

This dispute arose around the construction of the Glen Della Subdivision in West-wego, Jefferson Parish. In 1967 Robert Wiegand, Jr., President of Banner and Land Plans, bought an undeveloped tract with the intention of subdividing and selling parcels to builders. Title was taken by Land Plans, and this is Land Plans’ only connection with this suit. When Wiegand could not interest any builders, he decided that Banner Corp. would construct the houses itself, on a “build as they are sold” basis because financing for the venture was hard to obtain.

The three Clasco partners, Widlitz, Bernard and Meyer, approached Mr. Wiegand after Banner Corp. had begun construction on the first four houses, under the supervision of Mr. Buster Sherman. Clasco proposed to handle sales of the houses with a commission on each when the sale was closed. The parties agreed verbally and a short time later also agreed that Clasco would supervise construction of the houses at a rate of $200.00 per house, and would furnish lumber and materials, not incidentally, from a lumber yard owned by a Clas-co partner. Wiegand testified that he entered into these arrangements with Clasco because he was dissatisfied with Sherman’s slowness in completing the model homes, and Clasco had represented to him that they could have a house completed in a maximum of 60 days. In turn, Wiegand became dissatisfied with Clasco’s perform-anee and terminated their agreement. Clasco then sued for damages for breach of contract.

The supervision agreement between Banner and Clasco was confirmed by a brief letter dated June 12, 1968. The June 12th letter does not definitively state that the parties agreed that Clasco would supervise the building of all of the projected 320 houses, nonetheless this was Clasco’s position at trial and on appeal, and it has sued for lost profits on the remainder of the houses built. We need not decide the scope and duration of the agreement which was contemplated by the parties because we find that Clasco failed to perform even a minimum of its agreed upon duties, and was in active breach of its contract with Banner at the time their business relationship was severed.

The three Clasco partners’s work was satisfactory to Wiegand at the outset but eventually there were delays and mistakes in construction, absenteeism on the part of Widlitz, Fletcher, and Meyer, and according to most accounts heavy drinking by them at the job site. Wiegand testified that he was forced to assume more and more of the supervision as these problems grew.

At trial several subcontractors testified for defendant Banner as to the shoddy workmanship and delays they encountered while working under Clasco, as well as to the considerable drinking which the three Clasco partners did during working hours. Regarding the delays, Widlitz and Meyer of Clasco testified that Banner’s slowness in paying some of the subcontractors added to delays caused by unavailability of various materials. There is some support for Clas-co’s contention on this point. Banner’s shoe-string financing was not conducive to the smooth flow of operations, and subcontractors could not be paid until final inspection.

Wiegand testified that in the fall of 1969 he became fed up with the delays in construction of Glen Della and the problems he was having with the three Clasco partners. He had repeatedly voiced his dissatisfaction with their performance and had warned them about the drinking, but to no avail. At this time Wiegand was doing at least 80% of the supervision himself and the delays were causing large amounts of interest to accrue on the land loan. Wiegand verbally terminated the business relationship on September 16, 1969 and sent Clasco a letter of confirmation to that effect.

In response, Clasco, taking the position that they were under contract to supervise construction of 320 houses, immediately sent Banner a letter putting it in default. Robert Wiegand refused to renew the business relationship and this litigation ensued.

ISSUES

Appellant has raised four issues on appeal, namely:

1. Was Banner’s action to dissolve the contract in keeping with proper procedure to do so as defined in Louisiana Civil Code?

2. By not following outlined procedures for rescission, did Banner itself actively breach the contract?

3. What were the number of houses contemplated by the parties to be supervised under the contract?

4. What damages should Clasco receive for Banner’s active breach?

We do not find it necessary to reach the last 3 issues because we find that Clasco actively breached its contract with Banner Corp. through a continuously substandard performance, and on some occasions nonperformance of its duties. The trial court, in its Judgment, made 2 findings of fact: that Clasco’s employees were doing considerable on the job drinking and that Banner had just cause to terminate its business relationship with Clasco. We concur with the trial judge. A review of the testimony amply supports his findings.

At trial several subcontractors testified with surprising similarity as to the “parade of horribles” they experienced while working at Glen Della under Clasco’s management.

Mr. Frank O’Brien, the floor and tile contractor, testified that he had to wait up to 2 weeks at a time for flooring to be provided to him; flooring, he testified, which was readily available in the New Orleans area from several lumberyards on 24 hours notice. When his crew attempted to tile the bathrooms, much patching up and “furring out” of the walls was required because the sheetrock had been installed incorrectly. Also because of the delays, he was often forced to go work at other jobs while waiting to be provided with materials at Glen Della. O’Brien testified that in the 2 years he worked on the Glen Della homes he had only seen one of the Clasco partners inspecting houses, and could recall only 3 or 4 such inspections. O’Brien frequently saw the Clasco partners drinking whiskey, and added that their sales office reeked of it.

Charles Ray, a painting subcontractor, also testified as to Clasco’s long delays in furnishing such items as door frames, doors, and kitchen cabinets, which in turn delayed his painting. The piecemeal ordering and installation of the materials forced Ray to paint the interiors bit by bit, resulting in much duplication of effort and added cost to Banner Corp. Ray also testified about the constant drinking, stating that on one occasion he witnessed one of the Clasco members so intoxicated that he could not guide the glass of whiskey to his mouth and poured it on his desk.

Emmett Smith, a plumbing contractor, testified that he would at times receive a call from Clasco telling him to come out to install plumbing, and when he would arrive the houses would not be ready for his work. In some of the kitchens, countertops had been ordered and put in which were too narrow for the installation of the sinks. Smith was also a witness to the drinking during working hours.

Yanice Matherne and John Vidios, trim carpenters, testified that due to Clasco’s delays in supplying them with materials, they sometimes had nothing to do but walk around the subdivision. At the time of trial, Matherne was still working at correcting mistakes which were made under Clas-co’s supervision.

Mr. Edwin Decay, a purchaser of one of the Glen Della homes, testified that he would often visit the site in the afternoon to check the progress on his house. By his estimate on at least fifty occasions he witnessed the Clasco partner with whom he dealt inebriated, and “happy and jolly”, in his words.

It is evident from just this brief recap of testimony that Clasco was not only negligent in its supervisory duties but also its employees conducted themselves in an extremely unprofessional manner, and they failed to perform to a substantial degree the coordination of the work and the ordering of materials which were necessary to keep the subdivision venture running smoothly. The unreasonable delays and the defective work were the direct responsibility of Clasco to prevent. These, as well as the excessive drinking by the Clasco partners, represent an active breach of their contractual duties toward Banner Corp.

Under these circumstances, and as provided by Louisiana Civil Code article 1926, Banner Corp. was entitled to dissolve its contract with Clasco, and was relieved of the obligation to formally put Clasco in default. La.C.C. Art. 1932. It follows that as the breaching party, Clasco is not entitled to the damages which it claims.

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    Robert G. CREELY v. LEISURE LIVING, INC. and Jessie Martin Realty Mart, Inc.
    No. 5-189.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Jesse S. Guillot, New Orleans, for defendant-appellant.
    Paul M. Lapeyre, Kenner, for Jessie Martin Realty Mart, Inc., defendant-appel-lee/appellant.

      Robert G. Creely, Gretna, for plaintiff-ap-pellee.
    Before CHEHARDY, GAUDIN and DU-PRESNE, JJ.
   DUFRESNE, Judge.

This matter came before the district court in a concursus proceeding to determine the rightful claimant to $2,205, or 3% of the sale price of a house. These funds were in the possession of plaintiff in con-cursus, Robert Creely, the attorney who passed the sale. The two claimants made defendants, were Leisure Living, Inc., seller of the house, and Jessie Martin Realty Mart, Inc., a real estate broker. After trial on the merits, the court held that no contract existed between the claimants at the time this dispute arose. He further found, however, that Realty Mart, appellee here, was entitled to $1,500 in quantum meruit for services rendered. It is from this judgment that Leisure Living, Inc., appellant, takes this appeal.

Because we find no rule of equity that permits Realty Mart to recover in quantum meruit, and no contractual obligation on the part of Leisure to pay them a realtor’s commission, we reverse in part and affirm in part.

On October 24,1979, Realty Mart entered into a sale-purchase agreement for a home in Nottingham Subdivision with Leisure, owner of the house, and Alfred Gaudet, purchaser. By the terms of that agreement, Leisure agreed to pay Realty Mart a 3% commission on the proposed sale price. The contract specified, however, that if a loan commitment were not secured within 75 days after October 24, i.e., January 8, 1980, that the contract would be null and void.

This contract being concluded by the parties, Realty Mart advised Gaudet on how to go about getting a loan. Following this advice, Gaudet duly made application with Carruth Mortgage Corporation on the basis of the contract. Sometime in late January, Carruth sent the application papers to Creely for finalization. On inspecting these papers, Creely noticed that the October 24th sale-purchase contract had apparently expired, and decided that it would have to be rectified or replaced by another agreement before the loan could be finalized.

As a result of discussions, with all of the parties, a second sale-purchase agreement between only Leisure and Gaudet was entered into on February 1, 1980. On February 11, 1980, Gaudet received from Carruth a commitment for the requested loan. This was the only loan commitment made to Gaudet in regard to the contracts at issue here. It was stipulated at trial, however, that the loan commitment was made on the basis of the October 24, contract and accompanying loan application.

The final sale of the home was concluded on March 18, 1980. At that time, Creely anticipated that Realty Mart would make a claim for broker’s fees. He therefore withheld the amount of these fees, i.e., $2,205, from Leisure, and instituted this concursus.

After trial on the merits, the trial judge concluded that at least as of January 30, 1980, two days before the second sale-purchase agreement was signed, no viable agreement or contract existed between Leisure, Realty Mart and Gaudet. However, based on services rendered by Realty Mart, he awarded them $1,500 in quantum meruit.

The first issue to be resolved here is whether a party to a contract which is null and void for failure of a suspensive condition is entitled to recover in quantum meru-it for services rendered under that contract before the suspensive condition failed. We conclude that a party so situated is not entitled to recover, and therefore we reverse the judgment of the district court as to the award in quantum meruit.

The contract at issue here was prepared by Realty Mart, and contains an unambiguous suspensive condition:

“Should purchaser, seller or agent be unable to obtain the loan [of $48,500] within 75 days from acceptance hereof, this contract shall be null and void .... Commitment by lender to make loan, subject to approval of title shall constitute - obtaining of loan.”

The contract further provides that:

“If this offer is accepted, seller agrees to pay the agent’s commission of 3% which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured.”

The contract was signed on October 24, 1979. The loan commitment thus had to be obtained by January 8,1980, or the contract would be null and void of its own force. As the loan commitment was not forthcoming until February 11, 1980, the contract was null and void as of January 8th, and no realtor’s commission could be owing under the terms of this void agreement. With this conclusion, the trial judge was in agreement.

He further found, however, that there was a “relationship” between Realty Mart and Leisure, and held that this relationship entitled Realty Mart to compensation in quantum meruit. This holding is erroneous.

Quantum Meruit is an equitable doctrine, based on the concept that no one should be unjustly enriched at the expense of another. Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App.3rd Cir.1976). In the instant case, there are only two legal theories based in equity that can be advanced, and both bar recovery by Realty Mart in quantum meru-it.

The first is that under La.C.C. art. 1963, equity can be resorted to when the intent of the parties is not evident or is unlawful. Realty Mart has not alleged that the October 24th contract was ambiguous or that the intent of the parties was not evident, and we find no ambiguity or lack of clear intent in that agreement. Neither can there be any argument that the suspen-sive condition was unlawful because La.C.C. arts. 2020-2047 permit such agreements. As Realty Mart has failed to demonstrate that either of these requisites existed, La. C.C. art. 1963 prohibits resort to quantum meruit, or equity, in this case.

The second theory for recovery here is in fact a more general application of the first. This theory is based on quasi-contract, or more properly in this case, on principles of unjust enrichment. While the Civil Code recognizes only two types of quasi-contract, i.e., transaction of another’s business and payment of a thing not due (La.C.C. Art. 2294), the jurisprudence has established that other forms of quasi-contracts can arise under the more basic principle of unjust enrichment. Moreover, because the Code makes no specific provisions for cases in quasi-contract other than as contained in Art. 2294, such cases must be decided according to equity as provided in La.C.C. Art. 21. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). However, to obtain relief in the action for unjust enrichment, or actio de in rem verso, five criteria must be met:

(1) there must be an enrichment,
(2) there must be an impoverishment,
(3) there must be a connection between the enrichment and resulting impoverishment,
(4) there must be an absence of justification or cause for the enrichment and impoverishment, and
(5) there must be no other remedy at law available to plaintiff.
Minyard v. Curtis Products, Inc., supra.

While four of these criteria have apparently been met in the present case, there remains the question of whether there was any justification or cause for the enrichment. Put another way, the issue here is whether the enrichment resulted from a rule of the contract entered into by the parties. Edmonston v. A-Second Mortgage Co., 289 So.2d 116, 122 (La.1974).

On the facts before us, we can only conclude that there was justification for the enrichment under the terms of the contract. Indeed, the only cause of this enrichment was that Realty Mart drew up and entered into a contract based on the occurrence of a future event and that event failed to occur. Because there was justification for the enrichment, Realty Mart thus cannot recover in the actio de in rem verso.

Realty Mart also contends that they are entitled to the entire broker’s fee of 3% under the contract. They rely on Sleet v. Gray, 351 So.2d 286 (La.App. 3rd Cir.1977) for the proposition that where the contract states first that the sale is to be concluded by a certain date, and second that the broker’s fee is owing at the conclusion of the sale, that the later clause remains effective even though the sale is not concluded until after the date specified. We note, however, that the reported case makes no mention of whether the contract at issue there provided that if the sale were not passed by the stipulated date that the agreement would be null and void. Here the agreement does contain an explicit provision stating that failure to obtain a timely loan commitment nullifies and voids the contract. We cannot give force to any provision in that contract once it is extinguished by its own terms.

Realty Mart relies on Sleet, supra, for the further proposition that a realtor is entitled to his commission even when the sale is completed after termination of the agency contract, so long as he was the procuring cause of the sale. We again distinguish that case because there the buyer had refused to conclude the sale within the stipulated time of the contract. The court reasoned that to deny the broker his commission under such circumstances would be to allow all future buyers and sellers to defeat realtors’ fees by mere procrastination in closing sales.

While we agree with the result reached by our brethren in the Third Circuit, the proper rule of that case should have been that when a party prevents the occurrence of a suspensive condition, that condition is considered as waived. Kraft v. Baker, 377 So.2d 871 (La.App. 4th Cir.1979).

Here, there was no action or inaction on the part of buyer or seller which delayed the loan commitment. Proper application was made by Gaudet and through no fault of his own the loan commitment was not secured before the contract expired. Under these circumstances, no waiver of the condition occurred, and the contract was void for failure of that condition.

Realty Mart argues to the contrary that Leisure and Gaudet agreed to allow the contract to expire, and thus waived the condition. There is no evidence to support this contention. The evidence is rather that Leisure and Gaudet did not enter into any negotiations for direct sale of the property until sometime after January 19, well after the expiration day of January 8. For reasons which are not clear in the record, the trial court mistakenly attached some significance to the date of January 30, 1980. That date is mentioned in the contract only as the final day for passing the sale. However, the whole contract expired on failure to secure a loan commitment as of January 8. As Realty Mart presented no evidence to show that Leisure and Gaudet agreed before January 8, to delay the sale, no waiver of the condition could thereby have occurred.

The final argument of Realty Mart is that a prior listing agreement between themselves and Leisure for five other specified properties in Nottingham Subdivision was somehow extended by the sale of five additional unlisted houses in that development. They contend that because they were paid a 3% commission on the sales of the unlisted houses, and because the listing agreement for the five enumerated houses specified a 3% commission, that the listing agreement was thereby extended by implication to the five unlisted houses, as well as to the house at issue here. As the listing agreement would have entitled them to a commission under the facts of the present sale, they conclude that they are entitled to the entire $2,205 in dispute.

While we recognize that an oral listing agreement is binding, Samuels v. Firestone, 342 So.2d 661 (La.1977) there was simply no showing at trial that the parties ever orally agreed to extend the listing agreement to all sales beyond the five houses enumerated in that agreement.

We therefore affirm the finding of the trial judge that no contractual relationship existed under either the prior listing agreement or the October 24 sale-purchase agreement, and that Realty Mart is not entitled to a commission on this sale. However, as there was no legal basis for recovery in quantum meruit, we reverse the trial court’s award of $1,500 to Realty Mart, and order that the entire amount of $2,205 originally placed in the court’s registry be awarded to Leisure Living, Inc. We finally note that because no contract existed between the parties at the time this dispute arose, all claims for attorney’s fees and damages based on contract, active breach of contract or breach of judiciary duty under contract are moot.

For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART.

REVERSED IN PART.


text:
    Lionel HUTCHINSON v. BOARD OF ALDERMAN OF the CITY OF GRETNA.
    No. 5-219.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Martin Regan, New Orleans, Robert E. McDonald, New Orleans, on behalf of plaintiff and appellant Lionel Hutchinson.
    Blaine McMahon, Gretna, on behalf of defendant and appellee Board of Alderman of the City of Gretna.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Plaintiff-appellant, Lionel Hutchinson, appeals from a declaratory judgment upholding the constitutionality of a fireworks ordinance enacted by defendant-appellee, the City of Gretna. He also appeals from a dismissal of his petition to enjoin enforcement of the ordinance.

We affirm. The following facts were stipulated by the parties:

On October 16, 1981, Lionel L. Hutchinson, attempted to apply to the City of Gret-na under the provisions of Gretna City Ordinance No. 1563 and other applicable ordinances for a license to sell pyrotechnics, commonly referred to as fireworks during the period of December 15, 1981, through January 1, 1982. On said date he was refused an application by the City of Gretna licensing authority and advised that he did not qualify under the provisions of Section V Paragraph 5 of Gretna City Ordinance 1563 in that he was not issued a 1975 permit for sale of pyrotechnics, nor had he obtained a retail license issued by the City of Gretna prior to 1972 and renewed the same each year thereafter.

The ordinance in question reads as follows:

(5) No application for licenses for possession, sale, offering for sale and use of specified pyrotechnics shall be received unless the applicant has been issued a 1975 permit therefor, or said applicant has a retail license issued by the city prior to 1972 and has renewed said retail license each year thereafter.

Hutchinson alleged in his Petition for Preliminary Injunction and Declaratory Judgment, and amendments thereto, that the statute violates the equal protection and due process clauses of the Louisiana and United States Constitutions, that the city of Gretna lacked authority to enact the ordinance, and that applicable licensing fees under the ordinance are excessive. He urges these same arguments on appeal.

Louisiana Constitution, Art. 1, § 3 guarantees equal protection of the laws to all citizens of the state. The intent of this provision was to restate the equal protection clause of the Fourteenth Amendment to the United States Constitution. Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1386 (La.1978).

Both federal and state courts have long held that where there is no suspect classification or fundamental right involved, a statute is presumed to be constitutional, and the challenger must then show that it does not rationally further some legitimate state interest, or that it discriminates invidiously or is wholly arbitrary. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Bazley v. Tortorich, 397 So.2d 475 (La.1981).

Here there is neither a suspect classification nor a fundamental right at issue. Hutchinson argues that the ordinance contains a suspect classification as to age in its “grandfather clause”, because that clause discriminates against those who were not of age to acquire the requisite 1972 and 1975 licenses. He further argues that the conduct of a business activity is a fundamental right. Neither contention is supported by law.

In City of New Orleans v. Dukes, supra, the court upheld an ordinance which prohibited the vending of food from pushcarts by persons who had not engaged in such business for eight years prior to the law’s enactment. Implicit in that decision was a determination that a “grandfather clause” regulating a purely economic activity neither establishes a suspect classification based on age, nor trammels on a fundamental right. We see no distinction in the present case which would permit us to conclude otherwise.

Our next inquiry is, therefore, whether the statute rationally furthers a legitimate state interest. The interest identified by the city and accepted by the district court was that the proliferation of fireworks outlets would create an unmanageable increase in the work load of its police department. Clearly such an interest is legitimate, and the ordinance is rationally related to preventing this articulated evil. We must, therefore, presume its constitutionality. Absent any rebuttal evidence in the record which shows that the ordinance invidously discriminates or is wholly arbitrary, we conclude that it does not violate the equal protection clauses of either the Louisiana or United States Constitutions.

As in the equal protection area, attacks on a purely economic regulation alleging a violation of due process are judged according to whether the regulation is reasonable in relation to protecting or promoting the general welfare. West Coast Hotel, Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Bazley v. Tortorich, 397 So.2d 475 (La.1981); City of Shreveport v. Curry, 357 So.2d 1078 (La.1978).

The ordinance in question here seeks to prevent the proliferation of fire-works outlets because such operations would impose unacceptable burdens on the police department in regulating such businesses. We conclude that the regulation is reasonable to attain this legitimate end and protects the public welfare, and therefore that it does not violate the due process protections of either Louisiana Constitution Art. 1 § 2, or the Fifth and Fourteenth Amendments of the United States Constitution.

Hutchinson also contends that the city lacks authority to regulate the sale of fireworks. He is mistaken. La.R.S. 51:660 specifically grants such authority to local governing bodies.

Neither does the ordinance violate La.R.S. 51:123 as alleged by appellant. That statute prohibits citizens from engaging in monopolistic practices. It does not act as a limitation on municipal police powers to enact ordinances governing economic activities.

The final issue raised here is whether the ordinance imposes excessive fees for licenses to sell fireworks. Because Hutchinson was properly denied a license, he had no standing to challenge the amount of the fees he would have had to pay for such a license. As the district court ruled that this question was moot, and therefore did not decide that issue, there is no issue on the merits of appellant’s contention which is properly before this court.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.


text:
    Mrs. Mary T. BILLA, Divorced Wife of Frank Lingener v. Louis A. BILLA, Jr.
    No. 5-212.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Joseph V. Bologna, New Orleans, on behalf of plaintiff and appellant.
    Robert H. Fray, Marrero, on behalf of defendant and appellee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Mrs. Mary T. Billa (plaintiff) instituted an action in the trial court, alleging that acts transferring property belonging to her deceased father to her half-brother and step-mother were mere contractual shams and simulations. After trial on the merits, the trial judge rendered judgment against the plaintiff, stating that the plaintiff had not proven her case by the preponderance of the evidence. From that judgment, plaintiff appeals.

On appeal, the plaintiff sets forth the following specifications of error:

1.) The trial court erred when it held that plaintiff failed to prove her case by the preponderance of the evidence.
2.) The trial court erred in not recognizing that the facts as proved by plaintiff show that no consideration was paid for the dation en paiement executed by her father to his second wife (i.e., plaintiffs step-mother).
3.) That the trial court erred in holding that there was valid consideration for the sale by her father to his son (i.e., plaintiff’s half-brother).

The basic facts involved in this litigation, which are germane to the subject appeal are as follows:

An action was instituted by Mary T. Billa (plaintiff), the daughter of the late Louis A. Billa, Jr., who died March 16, 1980. The plaintiff is the only child of the first marriage of her deceased father to Antoinette Pascal, which marriage ended in divorce in 1932. The lawsuit was brought against her half-brother, Louis A. Billa, Jr., who is the only child of the second marriage of her late father to Salvatora T. Taravella, who died in 1971.

The plaintiff alleges that the transactions executed by her deceased father, one to his second wife and the other to his son, are simulated contracts or disguised donations.

The plaintiff argues that the first transaction is a purported act of dation en paiement by her father to his second wife, dated November 14, 1969. This act transferred the property located at 1026 Derbigny Street, in Gretna, Louisiana.

The second transaction, the plaintiff alleges, is a purported credit sale by her father to his son, dated June 20,1974. This transaction (i.e., act of sale) concerns the property located at 1030 Derbigny Street, in Gretna, Louisiana.

Furthermore, the plaintiff argues that her late father retained possession of all properties until his death, and particularly collected rents on the property transferred to the plaintiff’s half-brother. The plaintiff contends that her late step-mother (i.e. her late father’s second wife) never had sufficient funds to advance (loan) to her father for the purchase and construction of the residence located at 1026 Derbigny Street, in Gretna, which was the property transferred to her step-mother by the dation en paiement. Additionally, plaintiff asserts that her half-brother failed to pay full consideration to her father for the property transferred to him.

The errors presented on appeal can be formulated into one brief issue:

Was there sufficient evidence and testimony produced by plaintiff to support her contention that either the dation en paiement or the credit sale were simulated contracts?

It is well settled that the test of the sufficiency of the evidence in a civil case, whether direct or circumstantial, is whether the evidence, taken as a whole, shows the fact sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). Following the above line of eases, the plaintiff did not establish her case beyond the point in which rational thinking persons could differ as to the outcome.

Although the appellant has argued and we are aware of Johnson v. McCorvey, 344 So.2d 448 (La.App. 2nd Cir.1977) in which the Second Circuit has indicated that “Should a reasonable doubt be created as to the validity of the transaction, the burden of proof switches to the opposing party to dispel the doubt as to the authenticity of the contracts.” However, in this case, we are of the opinion as was the trial judge, that there was not sufficient evidence to support the contentions of the plaintiff and no reasonable doubt has been created as to the validity of the transactions. Mere allegations and suppositions do not meet the test of the type of evidence needed to question the authenticity of contracts.

A corollary to resolving this appeal is a reiteration of the law concerning appellate review of factual issues. Our review of factual issues is controlled by the principle established by the Louisiana Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and delineated further by our Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In those two cases, the standard of review to be applied to factual determinations by the triers of fact, whether judge or jury, was declared to be manifest error. Manifest error was defined as meaning clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding of the trier of fact (i.e., in this case, the trial court); there must be a further determination that the record establishes that the finding is not clearly wrong (i.e., manifestly erroneous). Therefore, our review of the factual determinations consists of a review of the record to establish whether the court was clearly wrong.

As an appellate court, we must give great weight to the reasonable evaluations and inferences of fact made by the trial court. In applying that principle to this case, although one could reach an opposite result, there is insufficient evidence to hold that the decision of the trial court was clearly wrong in its conclusions.

For reasons given above, we affirm the judgment of the trial court. The costs of this appeal are assessed to appellants.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Dr. David J. VIAL v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 5-143.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    R. Patrick Vance, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    Before BOUTALL, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a trial court judgment rendered in favor of plaintiff-appel-lee, Dr. David J. Vial, and against defendant-appellant, South Central Bell Telephone Company, for damages pursuant to an action in trespass.

The facts reveal that in 1956 appellant obtained from appellee’s predecessor-in-title a twelve-foot wide right-of-way on the subject property. The servitude extends along two contiguous boundary lines. In 1972, appellant entered the property and installed several conduits and cables outside of the right-of-way. Appellee subsequently purchased the land in 1973. Several years later, in 1976, appellants again entered the property to install five underground manholes for access to the conduits. These installations were also placed on appellee’s property outside of the servitude. In both instances appellant acknowledged that the installations were constructed out of the servitude unknowingly and mistakenly. Sometime in 1976, after observing appellant’s activity on the property, appellee hired a surveyor to determine his legal rights. The survey commenced on July 15, 1976, and was completed on August 3,1976. It revealed that appellant’s constructions were located beyond their servitude boundaries. On August 6, 1976, appellee’s attorney notified South Central Bell of the problem. Following appellant’s failure to either relocate the manholes or compensate appel-lee for the trespass, suit was filed on May 23, 1977.

After denying appellee’s exception of prescription, the case was tried on the merits. Judgment was rendered on April 27, 1981, awarding appellee, Dr. Vial, $24,312 for damage to land taken for the manholes, $30,200 for damage to land lying between the manholes, and $15,000 for mental anguish, pain and suffering with legal interest from date of judicial demand plus all costs.

South Central Bell Telephone Company appeals that judgment.

ISSUES PRESENTED ON APPEAL

(1) Whether the trial court erred as a matter of law in failing to find that an action for trespass has prescribed.

(2) Whether the trial court erred as a matter of law in refusing to apply the St. Julien Doctrine.

(3) Whether the trial court erred in assessing damages to the land taken for the manholes.

(4) Whether the trial court erred as a matter of law and/or abused its discretion in its award of $30,200 in damages for the land between the manholes.

(5) Whether the trial court erred as a matter of law and/or abused its discretion in awarding appellee $15,000 for damages for mental anguish and pain and suffering.

ISSUE NO. 1

Did the trial court err in failing to find the action in trespass had prescribed?

An action in trespass prescribes one year from the date knowledge of damages is received by the owner. LSA-C.C. art. 3537. The jurisprudence has long recognized that knowledge may be actual or constructive. Poirier v. Burton-Swartz Cypress Co., 127 La. 936, 54 So. 292 (La.1911); Reymond v. Sumrall, 67 So.2d 925 (La.App. 1st Cir.1953). Constructive knowledge occurs where plaintiff has been put on sufficient notice to require investigation. He must file suit within the year from the date he received such knowledge. Poirier, supra; Reymond, supra. Where the trespass is a continuing one, however, prescription does not begin to run until the offending object is removed. Joseph A. Neyrey, Gen. Cont. v. Louisiana Power and Light Co., 347 So.2d 266 (La.App. 4th Cir.1977), application denied, 350 So.2d 897 (La.1977). The record clearly reveals that the conduits and manholes, mistakenly placed outside the servitude, continued to illegally occupy appellant’s property at least until the date of trial. It is further indisputably evidenced by the record that appellant began construction on the manholes in January, 1976, but that appellee did not commission a survey until July, 1976. The results of that survey became available in August, 1976, and apprised appellee of the trespass.

While appellant raised several issues in the trial of the matter, the trial court found as a matter of fact that appellee did not receive actual notice of the trespass until August and further that appellant’s activities did not cease until July rather than April, 1976, as contended by appellant.

Our review of the record and the law pertinent to these facts leads this court to conclude that appellant’s arguments are without merit for several reasons.

Under the standard elucidated in Neyrey, supra, appellant’s continuing occupation of land belonging to the property owner constitutes a continuing trespass, and as such prescription is inapplicable. Furthermore, even absent a finding of continuing trespass, we fail to perceive the necessary elements required for prescription in those cases where the trespass has ceased. The trial court found, and we cannot find manifest error in its findings, that both actual knowledge and cessation of the activities occurred within the prescriptive period. In the absence of manifest error, we are restrained from disturbing those factual findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). In addition, our review leads this court to conclude that constructive knowledge cannot be imputed to appellee since appellant owned a legal servitude giving them the right to be in the area that their employees were working. Absent a survey, no trespass could have been determined due to the fact that the servitude was only twelve feet wide. Thus, we affirm the trial court’s holding that as the suit was filed timely, the action was not prescribed.

ISSUE NO. 2

Did the trial court err in failing to apply the St. Julien Doctrine?

The St. Julien Doctrine developed juris-prudentially as an adjunct to and deviation from Louisiana’s expropriation laws. LSA-C.C. arts. 2626-2641. Dating back to St. Julien v. Morgan’s Louisiana & Texas Rail road Co., 35 La.Ann. 924 (1883), the doctrine provided public or quasi-public corporations possessing the power of expropriation a method of acquiring servitudes or rights-of-way over the land of another without resort to expropriation proceedings. However, it was necessary that the landowner had knowledge of the construction and consented to it or acquiesced in it. Allowing the structures to remain, it granted the landowner damages only for their presence. Lake, Inc. v. Louisiana Power and Light Co., 318 So.2d 911, 912 (La.App. 4th Cir. 1975); reversed 330 So.2d 914 (La.1976). The Louisiana Supreme Court in Lake, supra, overruled the doctrine prospectively as it related to acquisition of discontinuous apparent servitudes; however, in October of the same year, the legislature enacted the Doctrine in LSA-R.S. 19:14. Appellant urges and we agree that neither the Lake decision nor the legislative pronouncement are applicable here since the conduct in question began in January, 1976 and ended in July, 1976. Thus, if the facts dictate, the case herein is subject to the original jurisprudential requirements.

Implicit in the St. Julien Doctrine is proof that the taking of property is necessary for the general use. LSA-C.C. art. 2626. Explicitly, it requires a consent or acquiescence by the landowner to the taking of the property without expropriation proceedings. The landowner consents or is presumed to have consented to that which an expropriation suit would have compelled him to yield. Moore Planting Co. v. Morgan’s Louisiana & Texas Railroad Co., 126 La. 840, 53 So. 22 (1910).

The facts of this case, as evidenced by the record, indicate the trial judge was correct in rejecting the St. Julien Doctrine defense. Appellant, by its own admission, negated the necessity requirement and stated throughout the entire proceedings that the constructions were inadvertently placed outside the servitude. In testimony their employee, the project engineer in charge of the manhole installations, failed to refute that assertion. No convincing evidence was presented which would show that the installations constructed in 1972 or 1976 required land in excess of the servitude already existing.

The record reveals as well that appellee acted promptly in opposing the appellant’s actions. As soon as the survey determined trespass had occurred, a letter was mailed to appellant raising objections to their conduct.

Clearly the St. Julien Doctrine does not apply here since both public necessity and consent, presumed or otherwise, are absent under the facts. A finding of negligent trespass is, however, supported by the evidence.

The project engineer testified the property was staked at some point in anticipation of the 1976 manhole construction, but that the stakes were lost subsequently. No one discovered the error. The engineer admitted that he did not know whether he was working within the boundaries of the servitude, and relied solely on the location of the conduits. After a review of the testimony, the conclusion is inescapable that no serious effort was made to define the legal perimeters of the work area. In view of the fact that the right-of-way was only twelve feet wide, its narrowness alone should have compelled a careful exercise of the servitude right. Thus, we concur with the trial judge that appellant not only committed a trespass, but did so negligently. We, therefore, affirm the trial court’s holding that the St. Julien Doctrine is inapplicable and appellant’s negligence subjects him to damages in tort.

ISSUES NOS. 3 & 4

Did the trial court err in assessing damages for land taken?

Appellate court review of a damage award is limited to determining whether the trial court abused its discretion. The record must establish, and this court must determine that the factual findings are not clearly wrong. Coco v. Winston Ind., Inc., 341 So.2d 332 (La.1977); Arceneaux v. Domingue, supra; Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

Appellant herein asserts that the trial court erred in (1) using the $3.00 value per square foot in calculating the damages; and (2) that the court erred in portions of the damage judgment by including land not legally susceptible to damage claims by this plaintiff. The judgment divided the land damages into two sections. The first section related to damage for the property taken by the manholes. The second involves damage to the land between the manholes.

Appellant’s first complaint relating to the $3.00 per square foot value used by the trial court in its calculations is without merit. The record reveals no evidence that the trial court abused its discretion in adopting this value proposed by appellee’s real estate expert as opposed to the figure proposed by appellant’s expert. In the absence of such a finding, that factual finding will not be disturbed. Perniciaro, supra.

On the second issue relating to the damages awarded for the property occupied by the manholes, we find that the trial court erred. The record reveals that the trial court correctly intended to exclude from consideration that portion of the property occupied by the conduits since that tortious act occurred prior to appellee’s ownership. However, the trial court used an 8104 square foot figure taken from testimony of appellant’s surveyor, which clearly included the conduit lines. The use of that figure was therefore manifestly erroneous. The evidence shows that the actual square footage was either 483 square feet or 686 square feet as testified to by the opposing expert real estate appraisers. Recalculating the damages for that portion of the judgment requires this court to reduce the award to the highest figure in the range available within the trial court’s discretion. Coco v. Winston Ind., Inc., supra. Pursuant to the expert testimony, the highest figure in the range is $2,058. Consequently, the award is hereby reduced to that amount.

The next portion of the damage award refers to the property lying between the manholes. The trial court awarded $30,200 for past damages and appellant complains that this amount also included property occupied by the conduit. We believe that the trial court intended to and did exclude the property occupied by the conduit, but find that the judgment was incorrectly cast.

The first aspect of the judgment requiring clarification by this court on this issue is whether a new servitude was created. The trial judge used the latest right-of-way sale figure to assist him in calculating the amount of damages, analogizing the effect on the property to the creation of a servitude. In order to prevent any misunderstanding, we must state unequivocally that no “new” servitude was created as to the property occupied by the conduit, the property disturbed by the location of the manholes, or the property occupied by the manholes. Servitudes are established only in the manner provided by the La.Civil Code. When public utilities are involved, the St. Julien Doctrine may apply as well. Under these facts, the property is not subject to acquisition by prescription since the “servitude” is not apparent. LSA-C.C. art. 742, nor has it been acquired by title LSA-C.C. art. 739. And, as we stated earlier, the St. Julien Doctrine is inapplicable here.

Pertinent to the quantum award, the telephone company’s illegal actions constitute a continuing trespass which continues as long as the offending objects remain on the premises. Joseph A. Neyrey, General Contractor, v. Louisiana Power and Light Co., supra. The judgment herein failed to recognize the continuing nature of the trespass. While we find that the award is excessive for past damages alone, it is an adequate rental for the past, present and future occupancy occasioned by the continuing trespass. We, therefore, affirm the award for $30,200, but do so for the reasons stated herein.

ISSUE NO. 5

Did the trial court err in awarding appel-lee $15,000 for damages for mental anguish and pain and suffering?

The final issue presented by appellant concerns the award of $15,000 damages to appellee for mental anguish and pain and suffering. It is clear such damages are recoverable in Louisiana in trespass actions. LSA-C.C. arts. 2315 and 2316. The trial court is afforded much discretion in awarding damages against a trespasser both for invasion of plaintiff’s property right and the resulting mental anguish, humiliation and embarrassment. Beasley v. Mouton, 408 So.2d 446 (La.App. 1st Cir. 1981); Boswell v. Ray O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978). However, minimal and normal worry and inconvenience is not compensable. Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir.1975). The Farr court noted numerous cases where damages were awarded to persons whose property was damaged by intentional or illegal acts, acts giving rise to strict liability, or acts amounting to a continuing nuisance. Despite appellant’s assertions to the contrary, appellee is legally entitled to the award since the trespass is a continuing nuisance. On the other hand, factually we can find no evidence to support the award given by the trial court. At most, the circumstances and testimony reveal minimal and normal distress. Since the trial court was manifestly erroneous in this determination, the award for mental anguish, pain and suffering and inconvenience is hereby vacated.

For the foregoing reasons, the judgment is recast to affirm liability and modify the award for damages as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

Judgment is rendered in favor of David J. Vial and against South Central Bell Telephone Company in the amount of $2,058 for damage to land occupied by the manholes; and in the amount of $30,200 for past, present and future rentals occasioned by the continuing trespass, together with legal interest thereon from date of judicial demand until paid, plus all costs.

AFFIRMED IN PART, AMENDED IN PART, RECAST AND RENDERED.


author: CHEHARDY, Judge.

text:
    Mrs. Patricia Barras, Widow of Ray BARRAS v. TOUZET’S INC., d/b/a Greased Lightning.
    No. 5-220.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 1982.
    Rehearing Denied Jan. 17, 1983.

      Gerald J. Leydecker, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Lawrence J. Ernst, New Orleans, for Touzet’s, Inc., d/b/a Greased Lightning, defendant-ap-pellee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   CHEHARDY, Judge.

Plaintiff Mrs. Patricia Barras instituted this suit for personal injuries she sustained while a patron at defendants’ water slide. Defendants are the slide owner and its liability insurer. The district court dismissed the suit holding that reasonable and ordinary care was exercised by the owner and the slide was reasonably safe for the use intended. Plaintiff has appealed.

The record reflects the following facts:

Mrs. Barras, a 32-year-old widow, accompanied by two friends, had gone to the Greased Lightning water slide on July 19, 1979. She had ridden down the slide seven times without mishap, but on the eighth ride she struck the bottom of the pool with such force that she allegedly fractured her coccyx and sustained low back injuries.

Plaintiff contends her injuries were caused by the defective manufacture and/or maintenance of the water slide. In support of this position she relies on the testimony of herself, the two ladies who accompanied her, a fellow employee at the slide at the time of her accident and A.J. Scardino, Jr., an expert in the field of safety and human factor engineering.

No one saw plaintiff strike the bottom of the pool, but she told them right after the event. The other ladies rode down once or twice more and then left with plaintiff. No one was injured other than plaintiff. They all testified that they estimated the distance between the end of the flume and the entrance to the water was a 1-foot drop. There was no evidence presented of any other defect.

Mr. Scardino testified he conducted a library search for standards for the water slide industry, but none existed. Therefore he resorted to a state of the art survey, personally visiting 10 to 12 water slides in this state, Mississippi and Alabama. The general concensus of the other owners/operators was that a water depth of 3 feet is best to act as a decelerant and to facilitate rapid movement and discharge people from the pool. He found a variance as to how much of the pool actually flowed into the flume, but in every slide he reviewed there was some “communication” with the pool level.

In his opinion the defendant’s pool and slide are unsafe if the water depth is not maintained properly, and based upon plaintiff’s claim that the drop from the end of the flume to the water was 1 foot on the date of the accident, the depth of the water could only have been 27 inches (as opposed to 3 feet), thus causing her to strike bottom with great force.

The witness inspected the pool in January 1980 and concluded the slide did not meet the engineer’s plans and specifications, because the distance from the flume to the water on that date was 7 inches below, and as shown on the plans it should have been 2V2 to 3 inches above, the flume. The water depth on that date was 36 inches at the deep end. It is noted that the slide was not in operation at the time of his inspection.

Defendants presented the testimony of the manufacturer, the designer, one of the corporate owners, and three employees who discussed their duties in the daily operation of the enterprise.

Lee Cox testified as an expert in the manufacture and design of water slides. He became interested in the industry in its infancy (1971) and in 1977 entered the business. He travelled all over the country visiting installations, slide manufacturers, architects, engineers and designers. Pools around the country varied in depth from 24 inches to 5 feet, however, the generally accepted standard depth is 3 feet. This insures the water is not too deep for youngsters, who are the largest group of customers, and enables the participants to get out of the water quickly.

The slides he visited had varying drop offs from the end of the flume to the water level. Disney World operates with a 4-foot drop, a Salt Lake City slide had a 4-inch drop, a Houston slide had a 6-inch drop, an Ohio slide had an 8-inch drop, and a St. Petersburg slide had at least a 1-foot drop. In his opinion a safety standard based upon a 36-inch pool with water fluctuating 3 inches below or 3 inches above that level is ideal. When the water is at that level in defendant pool the distance between the flume and the water is IV2 to 2 inches below the flume.

Arnold R. Smythe, Jr., a civil engineer, was called by Cox to draw a set of plans for the water slide. Smythe testified the recommended depth of 36 inches for water in the pool was supplied by Cox, and arrived at by consultations of both parties and by consensus with other owners. Like Cox, he visited other slide enterprises to determine the ideal differential between the top of the water at the operational level and the end of the water slide.

He also looked at the physics, i.e. the law of motion, to determine the proper dimensions, and concluded it would be better not to have the person drop any distance from the flume to the water, because if the end of the flume is several inches above the water, the downward direction of travel could plunge a person toward the bottom of the pool and cause injury. The pool was planned to have a zero differential between the flume and the water but an inch or so differential does not make a radical change in direction after the patron enters the water.

In visiting other slides to get a consensus of safe practices he measured with a stop watch the speeds of persons of different weights and sizes going down the slide since it is prudent design to have a knowledge of the speed you can reasonably expect so you can allow for a cushion.

He went to the defendant slide often, testing it before and after it was open for business and found it very satisfactory. He was satisfied the water level was adequate and that the interface between the flume and the water was fine. He is 6 feet, 4 inches tall and weighs 210 pounds, and he never hit the bottom of the pool.

John Stampley, one of the corporate owners, stated they had 800,000 customers since the slide opened and only four accident claims, other than minor bruises. One claim involved a chipped tooth, and another a laceration of the hand. He spends much time at the slide and stated the water level might be 34 inches at the beginning of the day when the slide opens, or right before closing, but if the water level were to drop below the skimmers it would lose prime and the motors would burn up.

The managers listed their duties. They check the pump house, the pool, the chlorine and water level, check the flumes for nicks or cuts and make sure the parking lot and pool area are clean so no one could cut themselves. The day manager has been a science teacher for seven years and has worked at the slide for three summers.

The night manager is a 28-year-old salesman. He confirmed the same duties at night. They have two employees stationed at the top of the slide to see the patrons do not engage in horseplay, or travel more than one at a time, and at least two or usually three employees are at the bottom of the pool to be sure the patrons get out quickly so no one is hurt when others come down the slide.

The managers always check the water levels and know, from where the water is on the line at the sides of the pool, whether more water is needed. To keep the level of the water at 36 inches they watch a tile at the bottom of a row of bricks at the top of the pool. The water level is kept at the top of the tile just below the bricks and if it drops to the middle of the tile it is time to add water. As people come in during the day the water level changes.

The day manager has no recollection as to the maximum distance from the bottom of the flume to the top of the water, but the night manager stated when the pool level was in the middle of the tile, the distance from the bottom of the flume to the top of the water was IV2 to 2 inches.

The only serious injuries they knew of was a chipped tooth, a boy who bit his tongue, and someone who injured his shoulder while engaging in horseplay. The procedure was to send the patrons to East Jefferson Hospital and the corporation paid the bill. There were very few claims.

Clearly the trial court believed from the testimony of defendant witnesses that the pool and slide were properly maintained and that the distance between the flume and the water claimed by plaintiff on the date of the accident was not substantiated.

Plaintiff complains, however, that her case was decided under C.C. art. 2315 on the theory of negligence and that it should have been decided under C.C. arts. 2317 and 2322, theories of strict liability.

We note that plaintiff petition is based upon numerous allegations of negligence, and her proof in the trial court has been to show negligence in the manufacture or maintenance of the slide. However, we do agree with her brief to the extent that common sense tells us many injuries will occur due to the hazardous nature inherent in the slide itself and that most of the risks of these hazards can be assumed by those using the slides. We might add that this should be particularly apparent to a person who has had trouble with her back since age 10, as described by her doctor; however, plaintiff contends the slide was constructed so as to increase the probability of someone being violently thrown to the bottom of the pool. As a factual matter this does not appear to be true.

We are not prepared to hold that the trial court committed error in its appreciation of the facts. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In addressing plaintiffs claim under 2317, this article imposes liability on the custodian of a defective thing which creates an unreasonable risk of harm to others. According to Loescher v. Parr, 324 So.2d 441 (La.1975), the plaintiff must prove the vice (i.e. the unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from the vice. In both negligence and strict liability cases, the probability and magnitude of the risk is to be balanced upon the utility of the thing. The distinction between the two theories of recovery lies in the fact that the inability of the defendant to know and prevent the risk is not a defense in a strict liability case, but precludes a finding of negligence.

Unlike Loescher, the water slide was not proven defective in any way, and many thousands of patrons have used it without injury — certainly no one else in plaintiff’s party or any other patrons of the slide came forward in answer to plaintiff’s attorney’s newspaper ad who were injured that evening when the water level was allegedly far below the recommended depth. The record is devoid of any evidence posing an unreasonable risk for the purpose intended. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).

We are also cited to C.C. art. 2322, which provides:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

It is clear plaintiff-appellant has no cause of action under this article because it did not arise from the fall or collapse of the water slide or any of its components.

The record clearly supports the trial court findings of no negligence or fault on the part of defendants and plaintiff has failed to establish any defect in the premises or the maintenance thereof so as to cause unreasonable risks or harm or injury to users of the water slide.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.