text:
    Marilyn P. SUMRALL v. Ray R. SUMRALL.
    No. 13651.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Edward T. Diaz, of Diaz & Cheramie, Golden Meadow, for plaintiff-appellee Marilyn P. Sumrall.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant Ray R. Sumrall.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Defendant Ray Sumrall appeals a judgment ordering him to pay back alimony in the sum of $1,350.00. Because we find the judgment of the trial court to be clearly wrong, we reverse.

Plaintiff Marilyn Sumrall filed suit seeking a separation based on abandonment and requesting alimony pendente lite. Defendant answered and filed a reconventional demand seeking a divorce on the grounds of having lived separate and apart for two years. At a rule to show cause hearing on May 9, 1979 the court ordered defendant to pay plaintiff alimony pendente lite at the rate of $450.00 monthly. It ordered the sum paid in installments of $225.00 on the first and fifteenth days of each month beginning May 15th. This judgment was signed May 17th.

At trial on the merits on September 4, 1979, the court rendered judgment in favor of defendant on the main demand and in favor of the plaintiff (defendant-in-recon-vention) on the reconventional demand. This judgment was signed September 6th dismissing both suits with prejudice. Although neither party was successful in obtaining a separation or divorce, no appeals were taken.

Defendant had been timely in making his alimony payments prior to the September judgment. After the cases were dismissed he ceased making payments. On November 14, 1979 plaintiff filed a rule seeking judgment for alimony payments accruing after the dismissals. Defendant filed a “peremptory exception of res judicata” urging that the September judgment of dismissal terminated his obligation to pay alimony. He also filed a “peremptory exception of lack of jurisdiction over the person,” arguing that he was then a resident of Texas and was not subject to the jurisdiction of the Louisiana district court. Judgment on the rule was rendered and signed December 26th.

The wording of the trial court’s judgment is somewhat confusing. In addition to decreeing defendant had not paid the alimony due since the month of September, 1979 and making executory the sum of $1,350.00 for alimony accruing through the month of November, the judgment reads:

“IT IS ORDERED, ADJUDGED, and DECREED that the exception of Res Ju-dicata filed herein by Defendant is hereby overruled and dismissed, the Court finding that the Court had original jurisdiction, which jurisdiction continued

The foregoing language seems to combine the overruling of both the objection of res judicata and the objection of lack of personal jurisdiction. Defendant appeals suspen-sively this judgment of December 26, 1979.

Alimony pendente lite is governed by Louisiana Civil Code Article 148.

“If the spouse has not a sufficient income from maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of other spouse.”

The statute clearly states the alimony may be granted when there is a suit pending. The suit for separation and the reconven-tional demand for divorce had been dismissed with prejudice. No appeal was filed within the delay provided by La.Code Civ.P. article 3942, so the judgment of dismissal had become definitive. La.Code Civ.P. article 1842. Without a pending suit, there could be no award of alimony pendente lite.

Alimony pendente lite is merely an incident of a suit for separation or divorce. Williams v. Spivy, 185 La. 304, 169 So. 347 (1936). When a suit for separation has been finally determined by dismissal, and no appeal has been taken, the right to alimony falls. Lee v. Koester, 155 La. 756, 99 So. 588 (1924).

The real question here, as in Lee, is whether the wife was entitled to alimony. Ostensibly, she was in court attempting to collect alimony accruing under a judgment she had obtained. That judgment, however, had ceased to exist upon the termination of the litigation for a separation or divorce. Not having a viable judgment under which she could attempt the collection of accrued alimony, her action equates to an attempt to establish the right to alimony pendente lite without the necessary foundation of a pending suit for separation or divorce. This situation is to be distinguished from those instances in which an appeal effects the maintenance of a suit for separation or divorce. When that happens, the wife is entitled to alimony pendente lite for the period of time ending with a termination of such litigation; and, she may proceed to collect it either during the litigation or afterwards. Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962).

For the foregoing reason, we find the peremptory exception should have been granted. Since we find the judgment should be reversed on the peremptory ground, we need not discuss defendant’s somewhat misnamed “peremptory exception of lack of jurisdiction over the person.”

For the foregoing reasons, the judgment of the district court is reversed. Plaintiff Marilyn Sumrall is to pay all costs.

REVERSED.

      . While treated as raising the objection of res judicata, and without passing on the propriety of its use in this instance, we notice the failure of plaintiffs rule to disclose a cause of action. This is because there was no suit pending for a separation or divorce at the time it was filed nor did it seek alimony which had accrued for a period of time existing prior to termination of the litigation for a separation or divorce. La. Code Civ.P. article 927.

      . The objection of lack of jurisdiction over the person is a declinatory exception under La. Code Civ.P. article 925(5).


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Joan Dee Royal LEMOINE v. Joseph Lester LEMOINE.
    No. 13655.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    John Wayne Jewell, New Roads, for plaintiff-appellee.
    Teddy W. Airhart, Jr., Baton Rouge, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

In this suit, Mrs. Joan Dee Royal Lemoine Major seeks to gain the custody of the two minor children born of her marriage to Joseph Lester Lemoine. Mr. Lemoine was awarded custody of Joseph Paul Lemoine, now age 9, and Dana Marie Lemoine, now age 5, on July 28,1978, by a consent decree. Custody was continued in Mr. Lemoine by judgment of divorce, rendered by default, on September 21, 1978. This petition for custody was filed on August 3, 1979.

After trial on the merits, judgment was rendered awarding custody of both children to Mrs. Major, and Mr. Lemoine has appealed.

The record shows that the parties separated once and then reconciled in 1977. Mrs. Lemoine then left Mr. Lemoine again in July 1977, and a judgment of separation was signed on July 28,1977. Mrs. Lemoine then went to live with Douglas Major, a married man. Mr. Major was divorced from his wife in January, 1979, and he and Mrs. Lemoine married in June, 1979.

The trial judge found that the children are well cared for by their father and that they are “healthy, polite and well mannered.” He further found that their father was providing for their religious and spiritual needs.

He further found that:
“Except for one factor the Court would conclude that there being no negative consideration which would dictate against custody to either parent then the best interest of the children would require that custody remain with the father so as not to disturb or disrupt the children.”

The factor referred to by the trial judge was the maternal preference rule. After a review of the codal and jurisprudential authorities, he found that the maternal preference rule still existed as a matter of fact, if not of law, and awarded custody to Mrs. Major. He concluded:

“It has not been shown, nor is there jurisprudential recognition of the proposition, that the father’s role is of equal significance to the welfare of the child as that of the mother. In short if we understand the sociology of the family as recognized by the jurisprudence, it is generally better for the welfare of the children to be in the care of their natural mother than to be in the care of their natural father.”

We find that, in so concluding, the trial judge erred. The recent amendments to Articles 146 and 157(A) of the Civil Code have markedly changed the burden of proof previously placed on parties to custody cases. These articles now provide:

Art. 146. “If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife, in accordance with the best interest of the children. In all cases, the court shall inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children. Such custody hearing may be held in private chambers of the judge.”
Art. 157. “A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. . ..”

The effect of these amendments, we find, has been to eliminate the so-called double burden of proof on one seeking to change custody and the maternal preference rule. No presumptions now flow from the sex of the parents nor from the prior custodial decrees. However, the sex of the parents and the conditions under which the children have been living are factors to be considered, along with all other relevant matters, in reaching the ultimate determination. See Thornton v. Thornton, 377 So.2d 417 (La.App. 2nd Cir. 1979); Bordelon v. Bordelon, 381 So.2d 871 (La.App. 3rd Cir. 1980); Dickey v. Dickey, 383 So.2d 808 (La. App. 1st Cir. 1980).

We think that, in this case, the facts clearly indicate that the children are well cared for and happy with their father, and have been since July, 1977, and that he is providing a better home and better moral environment than would be provided by their mother. We do not believe that the best interests of the children in this case dictate a change of custody to the mother despite their relatively tender ages and the sex of the mother.

The judgment appealed from is therefore reversed, and there will be judgment herein dismissing Mrs. Majors’ suit, at her cost.

REVERSED AND RENDERED.


author: COLE, Judge.

text:
    Quincy ADAMS, Executor of the Succession of B. J. Adams v. Floyd CARTER, Executor of the Succession of Winnie Carter Adams (3 Cases).
    Nos. 13656-13658.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.

      Robert L. Henderson, Jr., Slidell, for plaintiff.
    John N. Gallaspy, Bogalusa, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue in this appeal is whether or not the trial court erred in awarding the Succession of B. J. Adams $10,675.00 for one-half of the enhanced value of certain separate property belonging to the Succession of Winnie Carter Adams. At trial three eases concerning various claims by the estate of B. J. Adams against the estate of Winnie Adams were consolidated. We are concerned here with only one of these suits.

The pertinent facts are as follows: B. J. Adams and Winnie Carter were married in June of 1957; each had been previously married. The couple moved to the forty acre tract of land owned by Winnie Carter Adams. On the land were various improvements such as a house, several barns and various outbuildings. In subsequent years all buildings except one barn were torn down and rebuilt, including the house. B. J. Adams died on December 7, 1975 and Winnie Adams died on May 11, 1977.

On October 24, 1978, Quincy Adams, as executor of the succession of B. J. Adams, filed suit against Floyd Carter, executor of the succession of Winnie Carter Adams, claiming the B. J. Adams’ estate was entitled to one-half of the enhanced value of Winnie Adams’ separate property. The claim was based upon the theory that Mrs. Adams’ separate estate had been enhanced by community funds and labor, therefore B. J. Adams was entitled to reimbursement under La.Civil Code art. 2408., [It is undisputed that the improvements placed upon the separate land of one spouse belong to the owner of the land. Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3d Cir. 1976), writ denied 342 So.2d 217, 1977.] The trial judge found the value of the improvements to be $21,350.00 and awarded half of this amount to the succession of B. J. Adams. The Winnie Adams’ succession has appealed.

Appellant contends the trial court erred in three instances. The first issue is whether or not the trial court erred in ruling that La.R.S. 13:3721 did not apply to the claim at hand and therefore allowed parol evidence to be admitted. The second issue is, assuming the propriety of the parol evidence, whether or not the judge erred in granting an award for the enhanced value of the property without first ascertaining its value at the commencement of the community. The third issue is whether or not the amount of the award was accurate.

APPLICABILITY OF THE “DEAD MAN’S STATUTE”

Appellant contends that because the suit for reimbursement was filed more than one year after Winnie Adams’ death, no parol evidence should have been admitted to prove the claim for reimbursement. The applicable statute is La.R.S. 13:3721 (commonly referred to as the “dead man’s statute”) which reads in part as follows:

“Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:”

The article then lists four particular actions, one of which must be taken within one year of the death of the deceased. There is no contention by the appellee that any one of these actions were taken. Winnie Carter died on May 11, 1977 and no formal claim was made until suit was filed on October 24, 1978, more than one year later.

In his written reasons for judgment the trial judge found La.R.S. 13:3721 was not applicable to this claim for reimbursement. We agree with the trial judge’s conclusion that the purpose of the “dead man’s statute” is to prevent fraudulent and stale claims which the deceased could have refuted if alive. Taylor v. Bocock, 276 So.2d 347 (La.App. 2d Cir. 1973), writ denied 279 So.2d 205, 1973; In Re Ford’s Succession, 91 So.2d 71 (La.App. 1st Cir. 1956), writ denied 1957. The judge noted that the Third Circuit has explicitly held that the statute was limited to eases where a person was claiming a “debt” against the deceased party, and therefore had refused to apply the statute to a case involving a delictual obligation. Honeycutt v. Indiana Lumbermens Mutual Insurance Co., 130 So.2d 770 (La.App. 3d Cir. 1961), writ denied 1961.

The trial judge in the present case stated:
“In one sense, the claim against the Succession of Winnie Carter Adams is on a debt or obligation. Clearly, this Succession is obligated to the Succession of B. J. Adams for one-half of the increase or amelioration of Winnie Carter Adams’ property brought about by the common labor, expense or industry during the community that existed between B. J. Adams and Winnie Carter Adams. But this debt is not based on a promise or a service or any other transaction of a contractual nature.
“It is an obligation established by law. Its very nature obviates the likelihood of fraud.”

Indeed, a survey of the cases interpreting the “dead man’s statute” reveals the cases unanimously deal with conventional obligations such as promises to pay fees for services, obligations to repay loans and commitments to make donations. None of the cases deal with a claim that arises by law, such as the claim for reimbursement under La.Civ.Code 2408.

Appellant heavily relies on the case of Alexander v. Bates, 206 So.2d 763 (La.App. 1st Cir. 1968) for the proposition that the parol should not have been allowed in the instant case. We agree with the trial judge’s conclusion that although Alexander deals with a claim for reimbursement for improvements its facts make it totally inapplicable to the present situation. The defendant, Bates, was evicted from property claimed to be owned by the heirs of Alexander. As an alternative defense to the eviction suit, Bates claimed that Mr. Alexander had granted him permission to build a dwelling, therefore he was entitled to be reimbursed for the costs of the improvements. The court correctly ruled the “dead man’s statute” prevented any parol evidence to show the deceased had consented to Bates’ occupying the land. Obviously, the possibility of fraud was great in that the right to reimbursement hinged solely on the issue of whether or not Alexander had consented to Bates’ building of the dwelling. In the present case there is no issue as to consent. Mr. Adams’ right to reimbursement is not based upon Mrs. Adams’ consent but is instead established by law. La. Civ.Code art. 2408.

Indeed, the parol evidence was not used to establish the existence of the debt or obligation, but only to establish the value and the extent of the claim. This same distinction was made in Succession of Bon- nette, 188 La. 297, 176 So. 397 (La.1937), rehearing denied 1937. Bonnette dealt with the predecessor of La.R.S. 13:3721, Act. No. 11 of 1926, sec. 1. In Bonnette, a daughter sued the succession of her father, claiming her share of her predeceased mother’s estate, of which the father had enjoyed the usufruct prior to his death. The court refused to apply the “dead man’s statute” and allowed parol evidence to show the value of various improvements made on the property. The court pointed out that the right to be compensated for the improvements was a right that arose by law. The parol was being used merely to establish the value of those improvements.

For the foregoing reasons we agree with the trial judge’s holding that La.R.S. 13:3721 is not applicable to the present case. No error was committed in allowing the parol evidence to be admitted.

ENHANCED VALUE OF THE SEPARATE PROPERTY

Appellant argues the trial judge erred in granting any award for the “enhanced value” of the separate property without first ascertaining its value at the beginning of the community. We agree.

In order to receive reimbursement under La.Civ.Code art. 2408 a plaintiff must prove the following things: (1) that the improvements did in fact enhance the property; (2) that the improvements were made with community funds or joint labor; (3) the value of the property at the beginning of the community and at the dissolution; and (4) that the enhancement did not result in the ordinary course of events. Fontenot v. Fontenot, supra. In his written reasons the trial judge stated that the estate of B. J. Adams failed to prove the improvements actually enhanced the land of Winnie Adams. The judge found the land had increased in value simply because of an increased demand and because of inflation. Therefore, the award of $10,675.00 was strictly based upon the value of the improvements only.

An appraiser’s report was submitted by each side to the suit. Appellee’s report contained an estimate of the value of the land only as of June 1957, an estimate of the land and improvements as of August 1975 and as of August 1977. Appellant’s report contained an estimation of the value of the improvements only, as of December 1975. We find that neither report supplies enough information to accurately determine the enhanced value of the land and improvements.

Unfortunately, La.Civ.Code art. 2408 does not provide a formula for determining the enhancement value of the separate property. It is only logical that in order to determine the enhanced value of a piece of property it is essential to first determine the original value of that property. We feel it is impossible for the trial judge to conclude that the land has not been enhanced, or for him to assign any value to the “enhanced improvements” until the value of the land and the original improvements as of June 1957 are determined.

The appraisers’ reports show the improvements consist of the following: a house and carport, a pump house, two barns, a workshop and storage area, a machinery storage area and chicken house, and a smoke house. Three ponds and field fencing were also listed as improvements by one appraiser. Virtually all of the buildings existed at the beginning of the community. It is unfair to fail to place a value on these buildings in that the estate of Mrs. Adams is due a “credit” for any value that the buildings had as of June 1957. There is testimony at trial indicating that much of the lumber from the original house was used to construct the new house. It was clearly erroneous for the court to assign a value for the replacement improvements without giving a value for the original improvements.

A survey of the applicable cases show there is no uniform approach to the evaluation problem, as each case is governed by its own peculiar facts. One popular method has been to determine the value of the separate property at the termination of the community, minus the value the property would have had if the improvements had not been made. In Re Succession of Rusciana, 136 So.2d 509 (La.App. 1st Cir. 1961). This formula seems to work best in situations where there were no improvements at the beginning of the community. It is somewhat awkward to apply such a formula in the present situation where improvements were already on the land but have now been replaced.

A common sense approach to this problem would be to obtain an estimated value of the land and improvements as of the beginning of the community and compare that figure to the value of the land and improvements at the end of the community. The difference between the two, less the inflationary factor, would represent the enhanced value of the separate property.

ACCURACY OF THE AWARD

Appellant’s third assigned error is that the judge’s award was inaccurate because of conflicting testimony concerning the value of several ponds on the land and because of the judge’s failure to grant a credit to Mrs. Adams’ estate for certain separate funds expended on behalf of the community-

We need not determine the correctness of the value of the ponds because the trial judge’s award has been set aside and a new award will be determined consistent with this opinion. We simply note the ponds should be treated as any other improvement. If the evidence shows they were constructed (or improved) during the community and they enhanced the value of the land, the appropriate amount due will be reflected as part of the total figure.

Appellant further contends the trial court should have granted Mrs. Adams’ estate a credit of $1,750.00. At trial, two checks of $875.00 each were introduced into evidence. Floyd Carter, Mrs. Adams’ brother testified the checks were written by him and Mrs. Carter in exchange for certain property sold by Mrs. Adams. Mr. Carter stated the property Mrs. Adams sold was “part of my daddy’s property, heir property.” Another witness, Mrs. Kathy Johnson, stated she was aware of the fact that Mrs. Adams had sold some of her inherited property and had used the money to buy various household items. Appellant contends that since this separate property was used to enhance the community, Mrs. Adams’ estate is entitled to be reimbursed for the full amount. Of course, the proper amount of the award would be only one half of this amount, or $875.00, since Mrs. Adams would have theoretically received one half of its benefit from the community.

We find that this claim has not been sufficiently proven. First, there is no evidence as to what particular property was sold nor as to what Mrs. Adams did with the funds. She could have used the funds for the benefit of her separate estate, in which case no reimbursement would be due. Second, in order to prove a prima facie case for restitution of separate property used for the benefit of the community the wife must prove receipt of the funds by the husband. (Once this receipt is shown she need not show what was done with the funds.) Huie, Separate Claims to Reimbursement From Community Property in Louisiana, 27 Tulane Law Review 143 (1953).

For the foregoing reasons, the judgment in Docket No. 13,656 as it pertains to the award of $10,675.00 for the enhancement of separate property is set aside and this case is remanded for further proceedings to determine the value of the land and improvements as of June 1957. Further proof of the claim for reimbursement for separate funds which benefitted the community should also be developed. Costs of these proceedings should be shared equally by the parties.

REMANDED.

      . La.Civ.Code art. 2408 reads as follows: “When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one-half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry: but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.”

      . Art. 2408 was repealed in 1980 by the revision of the matrimonial regimes law. (La.Civ. Code art. 2325, et seq.) This concept is carried forth in the new law, art. 2367.

      . This right to reimbursement has now been specifically provided for in the new matrimonial regime law, La.Civ.Code art. 2367.


author: WATKINS, Judge.

text:
    Roger HUTCHINSON v. MARTRAIN MOTORS, INC. d/b/a Aqua Marine.
    No. 13659.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    A. Wayne Stewart, Denham Springs, for plaintiff.
    J. R. Coxe, Jr., Baton Rouge, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Appellant, Martrain Motors, Inc., d/b/a Aqua Marine, seeks review of the trial court’s judgment awarding $976.62 to Roger Hutchinson for an alleged breach of contract.

Testimony indicates that upon purchasing a fiber glass skiff, Hutchinson went by Cajun Special Boats, Inc. to borrow a trailer to pick up the boat. While at Cajun Special, the owner of that establishment, Scoffield Lobell, telephoned Martrain Motors to obtain a quote on the type of motor and rigging that Hutchinson wanted installed in the skiff. During the phone inquiry Chip Martrain, a salesman and son of the president of Martrain Motors, quoted Lobell a price of $2,539.95. Hutchinson then brought the boat to Martrain and informed Don Martrain, who was Chip’s brother and also a salesman, of the price quoted by Chip Martrain. Don Martrain then drew up an agreement in that amount based upon the representations of Hutchinson.

Upon reviewing the agreement, Chip Martrain realized that the quote given over the phone did not include steering, a tachometer, and various other items, which were listed on the agreement as included in the contract price. Chip Martrain testified that he phoned Hutchinson and that Hutchinson agreed to an increased price to cover the steering, tachometer, and other items. Hutchinson denies that he ever made such an agreement.

When Hutchinson went to pick up the boat, he tendered a check in the amount of the original agreement plus a sum for a trailer. The tender of the check was not accepted, and Hutchinson was refused possession of the boat because the amount of the cheek did not reflect the installation of the additional items mentioned above. Hutchinson left and later picked up the boat after it had been stripped of the work performed by Martrain.

Hutchinson brought suit for inconvenience, loss of use of the boat, and difference in cost of work which was later performed by another concern.

After trial, in oral reasons, judgment was rendered in favor of Hutchinson in the amount of $676.62, plus costs. The trial court was of the opinion that a written contract could not be amended by subsequent verbal agreement. That view is contrary to the laws of this state, under which if the contract is not required to be in writing, parol evidence is admissible to prove an amendment of a prior verbal contract, and that amendment must be given legal effect as constituting an amendment of the preexisting contract. Southern Scrap Material Co. v. Commercial Scrap Materials Corp., 239 La. 958, 120 So.2d 491 (1960); W. R. Aldrich & Co. v. Spalitta, 285 So.2d 835 (La.App. 1st Cir. 1973).

However, we do not find that there was in existence a preexisting contract that was subsequently amended. Rather, we are of the opinion, as appellant contends, that there was error as to the substance of the contract that prevented the formation of the contract.

Requisite consent for the formation of a contract is absent where there is an error of fact. LSA-C.C. art. 1819, 1820. However, not every error will invalidate a contract. Only errors, “... as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself”, are sufficient to invalidate a contract. LSA-C.C. art. 1823.

Thus, a contract may be avoided or invalidated for error as to the substance or substantial quality of the subject matter of the agreement. Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971).

After careful consideration of the testimony, we conclude that a mistake as to the subject matter of the contract led to the formation of the agreement. Hutchinson entered into the agreement evidently under the impression that the quotation given over the phone included steering. Chip Martrain, on the other hand, gave the quotation while under the misconception that the boat came equipped with steering. Under these circumstances, there was no meeting of the minds and consent was ineffective. Therefore, the contract cannot be given legal effect.

For the foregoing reasons, the judgment of the trial court is reversed at appellee’s cost.

REVERSED.


text:
    William MULINA v. Harvey TATE.
    No. 13660.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Ernest E. Hartenstine, Denham Springs, for defendant.
    L. Paul Gianfala, Rayne, for plaintiff.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit for “damages for tortious conversion of property”, brought by William Porter Mulina and Neville Raiford Ty-cer Mulina against Harvey Tate and Milbra Lipscomb Tate. Mrs. Tate was guardian of the person of Mrs. Mulina during her minority, under a guardianship proceeding in the Circuit Court of the Fifth Judicial Circuit for Coles County, Illinois. The Charleston National Bank of Charleston, Illinois, was appointed guardian of Mrs. Mulina’s estate.

As such, the Bank disbursed funds to Mrs. Tate for the maintenance of Mrs. Muli-na, then Miss Tycer, and also paid other items, including clothing, medical and dental expenses, insurance, gasoline, and some travel. In July, 1977, the Bank paid $7,175.50 for a 1977 Chrysler Lebaron, which was purchased for Mrs. Mulina, but which was placed in Mrs. Tate’s name, apparently because Mrs. Mulina was a minor.

On May 15, 1978, because of a disagreement, Mrs. Mulina left Mrs. Tate’s house, where she had been living for eight years, and did not return thereafter. Mrs. Tate would not let her take the Chrysler automobile with her. On September 26,1978, Mrs. Mulina became of age and, shortly thereafter, took possession of her estate from the Bank.

In the interim, between May 15, and September, 1978, the Bank sent $600.00 to Mrs. Tate for the maintenance of Mrs. Mulina, who was not then living in Mrs. Tate’s home. The Bank also sent Mrs. Tate $261.67 for the insurance premium on the Chrysler automobile.

This suit was filed on February 5, 1979, seeking damages for the wrongful conversion of the automobile and the return of the $861.67 paid to Mrs. Tate after Mrs. Mulina left her household.

On the trial of the case, Mrs. Mulina testified that she took the car with her when she left the Tate home, but returned it when threatened with arrest. She further testified that she had seen Mrs. Tate’s daughter, Jan, driving the car on one occasion, and also saw Mrs. Tate’s daughter, Denise, and her husband driving it. She further testified that, on her 18th birthday, when she called Mrs. Tate and asked for the car, she was told that it had been sold and that she could not have it. She admitted that the Tates later offered to give it to her, and that it had been tendered back to her through her attorney.

After plaintiffs rested their case, the trial judge directed a verdict ordering defendants to return the possession and title to the automobile to Mrs. Mulina, and rejecting all other demands, at plaintiff’s cost. From this judgment, plaintiffs have appealed.

In this court, plaintiffs seek the return of the $861.67 received by Mrs. Tate after Mrs. Mulina left the Tate home; damages for the loss of use of the car; and damages for embarrassment and humiliation suffered as a result of the alleged conversion.

There is nothing in the record to suggest that any part of the $600.00 received by Mrs. Tate after Mrs. Mulina left her home was expended for Mrs. Mulina’s benefit. If, as suggested by counsel and by the trial judge, Mrs. Tate was entitled to retain these funds because she had spent more on Mrs. Mulina, over the years, than she had received, there is no evidence to support this conclusion either. Ample funds were available from the Bank had Mrs. Tate needed more for Mrs. Mulina’s support, but no showing is made that any increase in the payments was requested.

The $261.67 paid for insurance on Mrs. Mulina’s vehicle was a proper expenditure, even though she did not have possession of the vehicle.

It therefore appears that plaintiff has made out a prima facie case for the return of the $600.00, and that the directed verdict was improvidently granted. Since the other rulings complained of by the plaintiff may be varied by the evidence yet to be received, and since they do not bear on the merits of the case, we make no ruling thereon at this time.

The judgment appealed from is therefore reversed and set aside, and the ease remanded to the trial court for completion of the trial. All costs of this appeal shall be paid by defendants. All other costs shall await final disposition of the case on its merits.

REVERSED AND REMANDED.


text:
    BAKER BANK & TRUST COMPANY v. Donald R. CHAUSSE et al.
    No. 13662.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      E. Wade Shows, Baton Rouge, counsel for plaintiff-appellant Baker Bank and Trust Co.
    Dennis R. Whalen, Baton Rouge, counsel for defendant-appellee Donald R. Chausse.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Baker Bank (now First State Bank & Trust) appeals a judgment relieving defendant of his obligation as an endorser on three promissory notes. This suit on the notes and accompanying chattel mortgages was originally filed against two defendants, Donald R. Chausse as endorser and 5601 Millworks, Inc. as principal maker, for the unpaid balance of $17,510.47. Baker Bank, as holder of the notes, sequestered the mortgaged property and proceeded to judgment against 5601 Millworks, Inc. only. Judgment was rendered in the amount prayed for, a writ of fieri facias was issued, the property was seized, advertised, appraised and sold to plaintiff for $8,466.74, two-thirds of the appraised value.

Baker Bank now seeks to recover the deficiency from the endorser, Donald Chausse. Chausse asserts he was prejudiced by improper advertisement of the seized property and by deterioration of the property while it was under the care of the custodian, Bill Pruyn. The court agreed and ruled these factors decreased the marketability and the value of the property. Defendant was released from his obligation of endorser under La.Civ.Code art. 3061. We disagree with the findings of the trial court, and because manifest error has been committed, we reverse. Canter v. Koehring, 283 So.2d 716 (La.1973).

There is no merit to either of Chausse’s defenses. His claim that the advertisement was so inadequate as to reduce the marketability of the merchandise is unsubstantiated. The mortgaged property consisted of eleven pieces of woodworking equipment. Although the advertisement listed only four items, the last line read “etc., all as shown on inventory list in Sheriff’s office.” This language clearly indicated to any interested reader that other items would be offered. Any potential bidder could have obtained the information from the sheriff’s office. Lee Guidry of the sheriff’s office testified that the cost of listing every piece of seized property was often prohibitive so that the general policy was to select four of five items to be specifically listed. He stated that readers are always informed that information concerning other property is available at the sheriff’s office.

Although La.Code Civ.P. art. 2331 requires that movable property be advertised at least once, there are no statutory requirements concerning the description of the property. The jurisprudence does not give any concrete guidelines as to how detailed the description must be. Appellant cites several early Louisiana cases that deal mainly with sales of real estate. Although none of the cases deal specifically with the description of movable property, a general principle is set forth. The property must be described in as accurate manner as the case will allow so that bidders know what they are bidding for. Dearmond v. Courtney, 12 La.Ann. 251 (1857). Certainly the ad would have been inadequate had it not contained the reference to the complete list at the sheriff’s office. We find that such reference enabled any potential bidder to become adequately informed as to what property was to be sold.

The trial judge mentioned in his written reasons that the inadequacy of the advertisement was proven by the fact that the seizing creditor later sold the property for $15,000. This fact is totally irrelevant as to the sufficiency of the advertisement. The ultimate extension of this line of reasoning would be to say that if the property had been subsequently sold by the creditor for less than the creditor paid for it, this would prove that the advertisement had been sufficient. The advertisement and the subsequent sale by the creditor are not related in any way. So long as the property was purchased at two-thirds of its appraised value of $12,700, as required by law, the purchaser’s profitable resale of the property does not reflect at all upon the sufficiency of the advertisement.

Regardless of the adequacy of the advertisement we feel defendant has waived his right to complain at this point. His remedy was to seek an injunction of the sale under La.Code Civ.P. art. 2298 which provides:

“Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the judgment debtor or to a third person claiming ownership of the seized property:
(1) When the sheriff is proceeding with the execution contrary to law;”

Chausse’s defense is that the sale was not executed in accordance with law because of the inadequacy of the advertisement. Defendant received notice of seizure so was well aware that eleven items were subject to judicial sale. The advertisement was published on February 17, 1978 in accordance with La.Code Civ.P. art. 2331. Although the publication put defendant on notice as to its contents, he made no attempt to enjoin the sale. This failure to act amounts to a waiver of rights. It is inappropriate for defendant to raise this issue as a defense now.

Defendant’s second defense, that the value of the property depreciated because of lack of due care of the custodian, is not substantiated by the record. Art. 326 of the La.Code of Civ.P. defines the duties of the sheriff with respect to seized movables and in pertinent part provides as follows:

“The sheriff shall take actual possession of all movable property seized which is susceptible of actual possession and may remove it to a warehouse or other place of safekeeping.
“He shall safeguard, protect, and preserve all property seized of which he has taken or is required to take actual possession; and for such purposes may appoint a keeper of the property.”

The keeper of the property is a depositary and is governed by the Civil Code article on deposit. Bickham Motors, Inc. v. Crain, 185 So.2d 271 (La.App. 1st Cir. 1966). A depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. La.Civil Code art. 2937. However, the depositary is only bound to restore the thing in the state in which it is at the moment of restitution. He is not responsible for ordinary deterioration and depreciation not caused by an act of his. La.Civil Code art. 2945. Bickham Motors, Inc. v. Crain, supra.

The trial record does not show any lack of due care on the part of Bill Pruyn, the custodian appointed by the sheriff. Some of the larger pieces of machinery had to be dismantled in order to be transported to Mr. Pruyn’s warehouse. He acknowledged that some of the machinery rusted while in storage yet there is no evidence that Mr. Pruyn did not care for this machinery in the same way he would have cared for his own machinery in storage. The record indicates that the rusting was an inevitable process that affects machinery when it is not being used and cleaned on a regular basis. There is no evidence that the rusting was caused by any lack of due care of the custodian. He was not obligated to continuously clean the machinery to prevent natural rusting from occurring.

Even if the record had supported the allegations the custodian had failed to use due care in preserving the equipment, defendant has waived his right to complain about any alleged damage occurring after October 27,1977. Defendant pleaded “wastage” of the property as a defense in his answer on October 27, 1977 yet he allowed the property to remain at Mr. Pruyn’s building until the judicial sale took place in April of 1978. Once defendant became aware the machinery was rusting he could have filed a rule to show cause why the property should not be taken from the custody of Mr. Pruyn. It would indeed by inequitable to relieve defendant of his obligation as an endorser when defendant was well aware of the alleged deterioration of the machinery but took no steps to remedy the situation.

For the foregoing reasons, the judgment of the trial court is reversed. Defendant Donald Chausse is ordered to pay plaintiff Baker Bank and Trust the following sums: $10,264.10 with interest at the rate of $2.78 per day from February 8, 1977 until paid, subject to a credit on April 5, 1978 of $7,746.69 such credit representing $8,466.74 derived from the sale of the mortgaged property less $718.05 for costs of the judicial sale; $3,107.07 with interest at the rate of $0.83 per day from February 8, 1977, until paid; $4,139.30 with interest at the rate of eight (8%) percent per annum from December 10, 1976 until paid; plus twenty-five (25%) percent of the total amount of said principal and interest as attorney’s fees. Appellee is cast for all costs.

REVERSED.

      . “The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.”


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    Bennie St. Roumain STOUT v. Percy J. BUECHE and Madeline Brashear Bueche
    No. 13663.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Warren E. Byrd, II, Dué Dodson & de-Gravelles, Baton Rouge, for plaintiff-appellant.
    D. Bert Garraway, Baton Rouge, for defendant-appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

Appellant, Bennie St. Romain Stout, seeks review of the trial court’s judgment denying her damages for an alleged breach of contract.

On April 17, 1977, Percy and Madeline Bueche, appellees, signed a purchase agreement wherein they agreed to buy Stout’s house for the sum of $17,500.00. Stout accepted the offer the same day. The terms of the purchase agreement provided that the sale was conditioned upon “. . . buyers ability to obtain FHA Mtg. Loan in the amount of $16,550.00”. It further provided that certain work was to be done to the house at seller’s expense and that if buyers moved into the house prior to the passage of the act of sale, rental would be due in the amount of $150.00 per month. This rental was not to apply to the sale price.

Shortly after entering into this agreement, appellees moved into the house. An application for an FHA loan was made and appellees commenced paying rent.

By mutual agreement the time allowed for passing the act of sale was extended on two occasions. Appellees were approved by FHA and a date was set for closing. On the closing day, appellees went to the office of the closing attorney (who was selected by the lending agency, Collateral Investments Co., and who testified in effect that he represented vendor, vendee and lender), signed the papers including the act of sale and endorsed the check from the lending institution. The testimony as to when Stout was to sign the papers is unclear.

Mr. Bueche testified that after signing the papers and endorsing the check, he was informed that a recorded judgment in favor of Baton Rouge Cigarette Service Corp. and against him had been discovered during the title work and that the sale could not be completed until this judgment was satisfied. Although the closing attorney’s testimony was not entirely consistent in that regard, he stated at one point in his testimony that Bueche knew of the judgment prior to the date of closing and had promised to pay it off.

Neither appellees, appellant or the real estate agent satisfied the judgment. The closing attorney, therefore, refused to complete the closing of the sale.

Stout filed suit for $6,268.63 representing alleged unpaid rent for three months, closing expenses, loss of use of property for nine months, services rendered by petitioner in complying with the purchase agreement, and damages for intentional breach and attorney’s fees.

After trial, judgment was rendered in favor of Stout in the sum of $300.00 (representing unpaid rent for two months) plus interest and costs. Stout’s demands for damages for breach of contract were denied.

Appellant contends that damages are due because of appellees’ alleged active, bad faith breach of the contract.

Appellant’s arguments all revolve around the issue of whether appellees breached their contract with Stout. We conclude that they did not.

It is well established that a provision in a purchase agreement “... which makes the sale conditioned upon the purchaser’s ability to obtain a stipulated loan to finance the purchase, is a contract subject to a suspen-sive condition. It imposes upon the purchaser the duty to make a good faith effort to obtain the loan.. Whether he has acted in good faith depends on the facts and circumstances in each case. If the purchaser, through no fault of his own, is unable to obtain the loan, he is released from his obligation to purchase. Woods v. Austin, 347 So .2d 897 (La.App.2d Cir. 1977).

The trial court, basing its determination on the facts of this particular case, found that the prospective vendees, the Bueches, were not, as part of their good faith obligation to obtain financing, required to discharge the prior judgment. In view of the circumstances of this particular ease, that the Bueches had no knowledge of the prior judgment and of the requirement that it be discharged, until the time of the closing, and that the Bueches apparently did not have and were not able to obtain the funds necessary to discharge the judgment, we find no manifest error in the trial court’s conclusion.

For the foregoing reasons, the judgment of the trial court is affirmed and appellant is assessed with all costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    Alias SMITH et al. v. PLACID OIL COMPANY et al.
    No. 13664.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.
    Arthur J. Cobb, and Kathleen Stewart Richey, Baton Rouge, for plaintiff-appellant Alias Smith, Alias Jones.

      John S. White, Jr., Baton Rouge, for defendants-appellees Harold Broekwell, E. A. “Red” Willis, Payne & Keller of La., Inc.
    Ben W. Lightfoot, Baton Rouge, for defendants-appellees Chester Pritchett North River Ins. Co.
    Paul H. Spaht, Baton Rouge, for defendants-appellees Charles Keys, Placid Oil Co.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

Plaintiffs herein, Bobby Verret and Donald R. Johnson, were employed by Payne & Keller of Louisiana, Inc., on a job at the plant of Placid Refining Company. Because there was reason to believe that there was drug possession, use and traffic on the plant premises during working hours, an undercover agent was procured, through the West Baton Rouge Parish Sheriff’s Office, to investigate. Chester Pritchett, Chief of the Narcotics Section of the Tangi-pahoa Parish Sheriff’s Office, was assigned to the job, and spent five weeks at the plant, posing as a worker while conducting the investigation.

At the conclusion of his investigation, he made a report and furnished a list of names of those he had reason to believe were involved in the possession, sale or use of marijuana on the premises. Plaintiffs were included on the list. All of the persons on the list were discharged “for cause.”

By this suit, plaintiffs allege the falsity of the charges levelled against them, and ask for damages arising therefrom. All parties defendant except for Mr. Pritchett and his insurer were dismissed from the suit, and trial on the merits was held as to those parties only. After trial, judgment was rendered in favor of defendants, dismissing plaintiffs’ suit, and they have appealed.

At the trial, both plaintiffs testified that they had never used, possessed or sold marijuana on the job. With respect to Mr. Johnson, Mr. Pritchett testified that on one occasion, he saw Mr. Johnson stuff a plastic packet of marijuana which had been sticking out of the pocket of another employee, down into the pocket, and that he was told by George Lott, from whom he had made a purchase of marijuana, that Mr. Johnson would “occasionally smoke during the noon break.”

With respect to Mr. Verret, Mr. Pritchett testified that on two occasions he saw him leave the grounds with two heavy users of marijuana, one of whom later told Mr. Pritehett that they had left in order to smoke marijuana. Mr. Verret’s name was not specifically mentioned.

The trial judge found that, under the above circumstances, Mr. Pritchett enjoyed a qualified privilege, and was not liable to plaintiffs.

In Toomer v. Breaux, 146 So.2d 723 (La. App. 3rd Cir. 1962), the court said:

“In other more numerous instances, a publication enjoys a “qualified” or conditional privilege, applicable if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.”

We agree with the trial judge that there was a reasonable basis for defendant’s belief that plaintiffs were smoking marijuana on the job. This information had been communicated to him by others he knew to be similarly involved, and he had seen both plaintiffs associating with such persons. There can be no argument that defendant had an interest in the subject matter or that the persons to whom his report was communicated had a similar interest. We therefore find that defendant enjoyed the qualified privilege claimed for him.

Plaintiffs also allege that, even if defendant’s report was qualifiedly privileged, the defense of privilege is personal to him, and cannot be employed by his insurer. We cannot agree. The defense of qualified privilege is not personal to defendant, but can be employed by anyone in a similar situation. “Personal defenses are such as infancy, interdiction, coverture, lunacy, bankruptcy and the like.” Simmons v. Clark, 64 So.2d 520 (La.App. 1st Cir. 1953). All of these involve some quality or status peculiar to the individual, which does not exist in this case.

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

AFFIRMED.


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    SUCCESSION OF Cedonia Celestin, wife of James ROBINSON.
    No. 13666.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Frank S. Bruno, New Orleans, for James Joseph Robinson (defendant in rule).
    Anderson Council, Kenner, for Nellie Cel-estin (plaintiff in rule).
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant James Robinson appeals a judgment removing him as administrator of the estate of his late wife, Cedonia Celestin. The issue presented is whether or not the trial court acted properly because of a conflict of interest involving past due alimony. Because we agree with the trial court’s conclusion that there is a serious conflict of interest between Robinson and the succession of Celestin, we affirm.

Exhibits attached to the record show Ce-donia Celestin was granted a judgment of separation from James Robinson on April 22, 1970. Robinson was ordered to pay Celestin $150.00 a month for alimony and for child support. The obligation to pay the alimony was actively litigated in the subsequent years, as evidenced by the several hearings, contempt orders and motions to suspend or reduce the payments. A final judgment of divorce was rendered on November 29, 1978. Cedonia Celestin died on December 27, 1978, prior to the signing of the divorce judgment. The divorce judgment and accompanying order to pay $13,-500.00 in past due alimony were signed on January 4, 1979. Robinson then filed a motion for a new trial. Although a hearing was held on the motion on April 20, 1979, the trial court has not rendered judgment thereon.

Robinson successfully petitioned the court to be appointed administrator of his late wife’s succession. Celestin’s mother, Nellie Celestin, filed a motion to have Robinson removed as administrator, claiming there were conflicts of interest and various acts of mismanagement. The trial judge granted the motion, removed Robinson as administrator and allowed ten days for the appointment of a new administrator. (The record indicates there has been no appointment of an administrator.) In his oral reasons for judgment the judge stated there were two grounds for Robinson’s removal. The first ground was the obvious conflict of interest concerning the alimony arrearages. The second basis for removal was a dispute over certain property insurance proceeds. Because we find that the removal was proper due to the conflict concerning the alimony, we find it unnecessary to address the issue of the insurance proceeds.

Appellant insists there is only a potential (rather than an actual) conflict of interest because no judgment has been rendered on his motion for a new trial and until the matter is finally decided it is unclear whether he owes a debt to the succession. It is true that without acts of mismanagement, a possible or potential conflict of interest is not a sufficient basis for the removal of an administrator. Succession of Kaffie, 273 So.2d 318 (La.App. 3d Cir.1973), writ refused 1973. The conflict in this case, however, is not merely a possible or potential conflict. It is an actual conflict. Granted, until the trial judge finally decides the issue and possible appeals are exhausted, it is uncertain whether or not Robinson will have to pay the alimony arrearages. Nonetheless, there is no question about the existence of the claim against him. As the succession administrator, Robinson would be the proper party plaintiff in any litigation concerning the succession. La.Code Civ.P. art. 685. If a new judgment eliminates or reduces the alimony it would be incumbent upon the succession representative to instruct counsel to appeal the judgment. It is indeed naive to expect Mr. Robinson to attempt diligently to collect the alimony on behalf of the succession and at the same time to protect his own interests from having to pay this sizable judgment.

La.Code Civ.P. art. 3191 sets forth the general duties of the succession representative. It states in part:

“A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.”

A fiduciary is defined by Black’s Law Dictionary as a person having a duty to act primarily for the benefit of another. A potential judgment debtor of approximately thirteen thousand dollars should not be expected to diligently pursue that debt on behalf of the creditor. La.Code Civ.P. art. 3211 specifies that the representative shall “enforce all obligations in its (the succession’s) favor.”

Article 3182 provides several grounds for the removal of the administrator. The pertinent language reads as follows:

“The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.”

Because the circumstances of the instant case prevent Mr. Robinson from acting in a purely fiduciary capacity and because he cannot reasonably be expected to enforce diligently all obligations in the succession’s favor, his removal was justified under La. Code Civ.P. art. 3182 in that he is incapable of discharging the fiduciary duties of his office.

Aside from the foregoing, we note appellant’s counsel in these succession proceedings is also his counsel in the action pending to determine whether or not he owes the accrued alimony. On the one hand his talents are being used to avoid payment of the alimony. On the other hand, he is handling estate matters which include a claim for payment of the alimony on behalf of the succession. We think this is tantamount to mismanagement of the estate and falls within the purview of La.Code Civ.P. art. 3182. Cf. In Be Mulqueeny’s Succession, 156 So.2d 317 (La.App. 4th Cir.1963). See also, Succession of Kaffie, supra; Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965).

For the foregoing reasons, the judgment of the trial court is affirmed and this case is remanded for further proceedings directed toward the appointment of an administrator of the succession of Cedonia Celestin. Appellant is cast for costs of this appeal.

AFFIRMED AND REMANDED.

      . Appellee’s brief asserts a new trial was granted as to the issue of delinquent alimony and child support. The record does not bear out this assertion. To the contrary, the record was supplemented by an affidavit of the Clerk of Court to the effect no judgment has been rendered on the motion for a new trial.

      . Although the claim is clothed with an execu-tory judgment, albeit not final, appellant omitted to list it as an asset of the estate on the descriptive list which he caused to be filed and upon which he appears as affiant.


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    B. E. WELCH v. CROWN ZELLERBACH CORP. et al.
    No. 13667.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Charles B. W. Palmer, Amite, for plaintiff.
    Charles M. Hughes, R. Bradley Lewis, Bogalusa, for defendant Crown Zellerbach Corp.
    H. O. Lestage, III, DeRidder, for defendant Robert Campbell and Southern Casualty Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This case involves a claim for workmen’s compensation benefits by B. E. Welch for injuries allegedly sustained while cutting timber on land belonging to Crown Zeller-bach Corp. Plaintiff has alleged that Robert Campbell, Inc. and Crown Zellerbach Corp. are his statutory employers, that Austin Carpenter is his immediate employer, and Southern Casualty Insurance Co. is the workmen’s compensation insurer of Robert Campbell, Inc.

This matter has been the object of protracted litigation which has reached the appellate level before, resulting in four appellate opinions. See Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir. 1975); B. E. Welch v. Crown Zellerbach Corp., 351 So.2d 1255 (La.App. 1st Cir. 1977); Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), and Welch v. Crown-Zellerbach Corp., 365 So.2d 586 (La. App. 1st Cir. 1978).

The litigation initially took place in the proceeding entitled Barney Edward Welch v. Robert Campbell, Inc. and Southern Casualty Insurance Co. bearing Docket No. 38841-B of the Twenty-First Judicial District Court for the Parish of Tangipahoa. In that proceeding the court rendered judgment in favor of plaintiff for workmen’s compensation benefits based on total and permanent disability against Austin Carpenter, plaintiff’s immediate employer, and dismissed plaintiff’s suit against Robert Campbell, Inc. and its insurer, Southern Casualty Insurance Co., finding that Robert Campbell, Inc. was not the statutory employer of plaintiff. Crown Zellerbach Corp. was not a party to that proceeding. The judgment in that proceeding became final as a result of the decision of this court reported at 316 So.2d 822. The Louisiana Supreme Court refused writs in 321 So.2d 523. The present appeal is in the proceeding bearing Docket No. 43044 of the Twenty-First Judicial District Court for the Parish of Tangipahoa.

The facts of the cases are well stated in the earlier appellate opinions to which we refer the reader. For the most complete history and statement of the case, we refer to this court’s most recent opinion set forth at 365 So.2d 586, which decision was handed down on November 20,1978, remanding the case to the trial court.

Following this remand, the plaintiff, Barney Edward Welch (hereafter called Welch) filed a pleading entitled “First Supplemental Petition (after writs).” This pleading which was filed on May 21, 1979, again attempted to name Robert Campbell, Inc. (hereafter called Campbell) and its insurer, Southern Casualty Insurance Co. (hereafter called Southern) as defendants purportedly on the basis of alleged fraud and ill practices in the previous suit against them (Docket No. 38841-B), and sought unspecified money damages against them as solida-ry debtors with Crown Zellerbach Corp. (hereafter called Crown). On May 31,1979, Welch filed a pleading entitled “Second Supplemental Petition” which alleged that he was “invoking and specially pleading the doctrine of equitable estoppel.” On June 27,1979, Crown filed an Answer and Third Party Petition answering the First and Second Supplemental Petitions of Welch, and naming Campbell, Southern and Austin Carpenter (the immediate employer of Welch) as third party defendants, alleging that if Crown were held liable to Welch, then the third party defendants were liable in solido to Crown. In response to the main demand and third party demand against them, Campbell and Southern filed motions to dismiss, exceptions of no cause of action and res judicata and answers. The motion to dismiss and exceptions were overruled by the trial court. After trial on the merits, judgment was rendered on February 12, 1980, in favor of plaintiff, Welch, and against Crown, Campbell, Southern and Austin Carpenter, “jointly, individually and in solido”, for workmen’s compensation benefits for total and permanent disability, for penalties and attorney’s fees. The trial court further rendered judgment on the third party demand in favor of Crown and against Campbell and Southern. Crown, Campbell, and Southern have appealed sus-pensively and devolutively. It does not appear from the record that Austin Carpenter was ever served and cited as a third party defendant, nor does the record show that he ever appeared in this proceeding.

PRINCIPAL DEMAND AGAINST CAMPBELL AND SOUTHERN

Upon the remand of this case by our decision of November 29, 1978, 365 So.2d 586, plaintiff, Welch, in his pleading entitled “First Supplemental Petition” (after writs) again named Campbell and Southern as defendants in his principal demand. A supplemental petition was subsequently filed pleading the doctrine of equitable estoppel. The most that can be said for these two pleadings is that they were an inept attempt to relitigate the claim against Campbell and Southern, notwithstanding the prior decision of this court. Defendants Campbell and Southern correctly maintain that the principal demand now pursued against them is barred by res judicata as judgment was earlier rendered in their favor on the prior appeal resulting in our decision on November 20, 1978, reported at 365 So.2d 586.

Plaintiff contends that the prior judgments (arising from Docket No. 38441-B) were based on wrongfully and fraudulently withheld evidence, and that, therefore, the prior judgments were nullities. We cannot agree.

The facts that supposedly were wrongfully withheld are that the accident took place on Crown’s land, and that there was a contractual relationship between Austin Carpenter and Campbell. However, the first fact was known to plaintiff as early as the trial on the merits on May 7,1973, in Docket No. 38441-B, because he testified as to this fact. See Welch v. Robert Campbell, Inc., supra. Additionally, this first fact (that the accident took place on Crown’s land) was alleged by counsel for plaintiff in a pleading filed February 10, 1976, and the facts leading to the establishment vel non of the second “fact” (that there was a contractual relationship between Carpenter and Campbell, which is really a construction of law) were available to plaintiff at the time of the first trial on the merits (Docket No. 38441-B) in answers to plaintiff’s interrogatories, which plaintiff failed to introduce into evidence although the said answers were in the record. Thus, there was no fraud as to the second “fact”, and the “fraud” as to the first fact, that the accident took place on Crown’s land, was known by plaintiff as early as May 7, 1973. The trial court in its written reasons stated that Southern was engaged in a “cover-up of the facts”. This is not correct, as Southern certainly had no obligation to introduce evidence in support of plaintiff’s case. In a system of adversary determination, we do not think it accurate to state there was a “cover-up” when there was not one indication of an attempt to suppress facts.

Under art. 2004 of the LSA Code of Civil Procedure, an action of nullity must be brought within one year of the discovery of the fraud or ill practice if the action of nullity is predicated on those grounds. Plaintiff, in the petition filed by him on February 10, 1976, in this proceeding, naming Campbell and Southern as defendants, sought to set aside the final judgment in the first proceeding (Docket No. 38441-B) alleging therein, as we have stated, that the “facts”, that the accident took place on Crown’s land, and that Welch was covered by Campbell’s insurer, were wrongfully withheld from plaintiff. Thus, substantially the same allegations were made by plaintiff on February 10, 1976, that were subsequently made in the petition against Campbell and Southern on the grounds of fraud or ill practice that was filed by plaintiff on May 21, 1979. This fact, that the accident took place on Crown’s land, which plaintiff alleged on February 10, 1976, was fraudulently withheld from him was, as we have shown above, known to plaintiff at least as early as May 7, 1973.

The prescriptive period of one year had clearly run, and thus Campbell’s and Southern’s plea of one year prescription, overruled by the trial judge, is hereby sustained, and Campbell and Southern are dismissed as defendants in the main demand.

PRINCIPAL DEMAND AGAINST CROWN

As is seen in the Supreme Court's decision at 359 So.2d 154 (1978), Crown’s plea of prescription, res judicata, and collateral es-toppel were overruled and the matter remanded for trial. We do not agree with that ruling in all respects, but we are compelled to follow it.

We find that an accident occurred, in which plaintiff Welch sustained an injury to his back, as plaintiff contends, and the trial court found. The trial court also found, after trial on the merits, that a contract existed between Crown and Campbell, and that Crown was obligated to pay compensation as statutory employer and as principal in a series of contracts in which Crown was principal, Campbell contractor, Carpenter subcontractor, and Welch employee. The trial court made a specific finding that Campbell had contracted to supply Crown with timber. We have found a written contract to that effect in the record, and, in addition, the transcript supports a determination that such a contract existed, and was in force at the time of the accident.

We have some difficulty in arriving at a determination that a contract to furnish timber existed between Carpenter and Campbell. It is necessary to find such a contract to award compensation, and we must assume the trial court found the existence of such a contract, although its written reasons do not directly so state. We hold that there was sufficient evidence to permit the trial court to arrive at such a conclusion. Campbell’s secretary referred Welch to a physician when Welch was hurt. Campbell directed Welch to the timber to be cut earlier on the day on which he was hurt. Also, the timber was on Crown’s land, plaintiff was hurt on Crown’s land, and, as we have seen, a contract existed between Crown and Campbell. No evidence was presented by the defendants, who rested their case following plaintiff’s presentation of his case. We, therefore, find there was sufficient evidence to find that a contract existed between Carpenter and Campbell.

On the question of the existence and severity of the injury, we have the testimony of only one expert, Dr. Alan C. Farries, an orthopedic surgeon. However, that deposition clearly reveals that Welch’s accident aggravated a pre-existing condition of his back, and that because of pain Welch could not, or should not, return to the type of work he was doing at the time of injury, cutting and loading timber. We, therefore, find no reversible error on the part of the trial court in its holding that Welch was totally and permanently disabled.

THIRD PARTY DEMAND OF CROWN AGAINST CAMPBELL AND SOUTHERN

Campbell and Southern contend that the determination, in plaintiff’s initial suit (Docket No. 38441-B) against them, that Campbell was not plaintiff’s statutory employer, precludes a determination in the present suit that Campbell was plaintiff’s statutory employer by virtue of the doctrine of res judicata. The third party demand could be enforced only if it was the case that Campbell was plaintiff’s statutory employer.

The determination of that question involves a determination of the nature of Louisiana’s doctrine of res judicata, which is founded upon LSA-C.C. art. 2286, which reads as follows:

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

It is stated in a comment in 53 Tul. L.R. 875 (1979) that under French doctrine, which is based upon a French Codal article with substantially the same language as our own and which is the source of our art. 2286, that the requirement that there be an identity of parties is met if one party appears in the same quality as another and thus represents another. The French permit one solidary debtor to represent another under this view. However, it was held by implication by the Louisiana Supreme Court in the earlier Welch v. Crown Zellerbaeh Corp., 359 So.2d 154 (1978), that subcontractors, contractors and principals in a workmen’s compensation claim are debtors in solido, and a judgment against one is not a bar to an action against another, because the parties are not identical. Thus, it was held, res judicata does not apply. Similarly, we are compelled to hold in the present third party award, although there is identity as to the issue, the parties in the prior judgment in favor of Campbell and Southern differ from the parties to the present third party demand of Crown against Campbell and Southern and, thus, representation between co-debtors in solido not being permitted, res judicata does not apply.

Campbell and Southern further contend that for a third party demand to be brought against a contractor or subcontractor, the employee must have had a cause of action against the contractor or subcontractor, and that Welch had none for the reason that Welch’s claim against Campbell had already been decided adversely to Welch. A careful reading of the second paragraph of LSA-R.S. 23:1061, upon which Campbell’s and Southern’s contention is based leads to a contrary conclusion. That statutory provision reads as follows:

“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

The statute speaks in terms of “would have been liable ... ”, thus indicating that the positions of the parties at the time of injury, not at the time of litigation seeking to enforce the provision is brought, is determinative. We cannot accept the third party defendant’s interpretation of the statute.

ATTORNEY’S FEES

Judgments adverse to plaintiff have been rendered many times in proceedings that were well argued, and in decisions that were soundly reasoned. Thus, a real and substantial question existed as to whether or not plaintiff’s claim for benefits had merit in fact or in law. Hence, we find denial of compensation was clearly not arbitrary and capricious, and reverse the trial court’s award of penalties and attorney’s fees.

DECREE

For the foregoing reasons, we sustain the exceptions of prescription and res judicata of Robert Campbell, Inc. and Southern Casualty Insurance Co., as to the principal demand, and render judgment herein dismissing them as defendants in the principal demand.

The judgment of the trial court is reversed insofar as it awards plaintiff penalties and attorney’s fees.

Since Austin Carpenter was not served or cited and made no appearance in this proceeding, the trial court was without jurisdiction and, accordingly, its judgment against him is reversed.

In all other respects, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against Robert Campbell, Inc. and Southern Casualty Insurance Co.

AFFIRMED IN PART, REVERSED IN PART.


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    E. W. JOHNSON v. FORD LIFE INSURANCE CO. et al.
    No. 13701.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      L. B. Ponder, Jr., Amite, for plaintiff.
    Eugene R. Groves, Nancy C. Tyler, Baton Rouge, for defendant, Ford Life Ins. Co.
    T. Norwood Whitley, Hammond, for defendant, Hammond Motors, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a suit for accident benefits which plaintiff, Edgar W. Johnson, contends are due under the provisions of certain terms of a form contract of credit life and health insurance. The trial court found for the defendants, Hammond Motors, Inc. and Ford Life Insurance Co., holding the accident benefits inapplicable to plaintiff, and plaintiff appeals. We affirm.

Johnson purchased a truck from defendant Hammond Motors. At the time of purchase, he took out a policy of credit life insurance from Ford Life Insurance Co. through Hammond Motors, its agent, and the retail sale contract which he signed indicates this with an “x” mark showing in a box next to the words “Credit Life Insurance.” There was no mark in the box next to the words “Credit Accident and Health Insurance” on the original of the contracts.

Plaintiff was subsequently injured in a vehicular collision and contends he is entitled to accident benefits under the Credit Accident and Health Insurance section of the form contract. His carbon copy of the agreement shows that “X” mark appearing between boxes for life insurance and accident insurance, rather than appearing definitely in either one. Plaintiff claims the position of the “x” constitutes an ambiguity in the contract and this ambiguity should be resolved in his favor as the form was that of Ford Life Insurance Co., which was issued by its agent, Hammond Motors.

The best evidence of the intent of the parties to the contract is the original of the contract. The original shows the plaintiff intended to purchase only Credit Life Insurance. We agree with the findings of the trial court that the copy was not properly aligned with the original, causing the markings on the copy to appear in different lines or boxes than on the original.

Plaintiff further argues that it was his intention to purchase health and accident insurance. We have carefully reviewed the testimony of the witnesses and the other evidence presented and find that this fact was not established by plaintiff at trial, as the trial court quite apparently found.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    In re Alvin W. PIERCE and Vicki Ann Pierce.
    No. 13761.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Robert R. Feucheaux, Jr., Reserve, for Harry Jacob Levine and Norma Lee Levine.
    Charles G. Walker, Hammond, for Vicki Ann Pierce and Alvin Pierce.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is an adoption proceeding, in which Alvin W. Pierce and Vicki Ann Pierce are seeking to adopt Jennifer Lynn Levine. Jennifer is the daughter of Harry Levine and Barbara Ann Ferguson Levine, and was born in Galena Park, Texas, on August 4, 1975. Mrs. Levine died in January, 1979, and on April 21, 1979, Mr. Levine signed a document entitled “Voluntary Surrender of Custody” by virtue of which he surrendered custody of Jennifer to Mr. and Mrs. Pierce, and consented to her adoption.

This proceeding was instituted on May 31, 1979, and an attorney at law was appointed to represent Mr. Levine, who is a resident of Texas. Apparently, after being notified of the proceeding, Mr. Levine advised Mr. and Mrs. Pierce that he was withdrawing his consent to the adoption and was coming to get his daughter. On July 6, 1979, Mr. and Mrs. Pierce obtained, ex parte, a temporary restraining order, prohibiting Mr. Levine from interfering with their custody of Jennifer or taking her from their home. A rule for a preliminary injunction was heard on July 16, 1979. Mr. Levine filed a “Special Appearance” alleging lack of jurisdiction of the court over him, and filing a decree of the district court of Harris County, Texas, dated July 13, 1979, by virtue of which Norma Lee Levine, Mr. Levine’s mother, was appointed “Managing Conservator” of Jennifer and Mr. Levine was appointed “Possessory Conservator.” He prayed for dismissal of the case.

After the hearing, an order was signed granting temporary custody of Jennifer to Mr. and Mrs. Pierce, and fixing a hearing on the interlocutory decree of adoption for August 29, 1979. The court also ordered a Welfare Department investigation of the homes of Norma Lee Levine and Harry Levine. On August 6th, the matter was continued until October 5, 1979, on the ex parte motion of Mr. and Mrs. Pierce.

On August 16, 1979, Norma Lee Levine filed a petition for a writ of habeas corpus, seeking custody of Jennifer, alleging herself to have custody under the Harris County decree mentioned above. The application was denied on August 31,1979, and Mr. and Mrs. Pierce were maintained in their temporary custody.

On September 25, 1979, a second application for a writ of habeas corpus was filed, this time by Norma Lee Levine and Harry Levine, alleging the same Texas judgment as authority. This application was denied by the trial judge, sua sponte, without a hearing.

On October 12,1979, Harry Levine filed a third application for a writ of habeas corpus, which was again denied, sua sponte, by the district judge, without a hearing.

On October 23, 1979, an adoption decree was signed in the district court of Harris County, Texas, by virtue of which Jennifer was adopted by Norma Lee Levine, her grandmother.

The case came up on a hearing on the interlocutory decree on November 30, 1979, at which time counsel argued, but apparently no evidence was heard. Briefs were ordered filed and reports from the States of Louisiana and Texas were requested by the Court.

The matter came on for hearing on January 18, 1980, at which time evidence was heard. After the hearing, the court rendered an interlocutory decree of adoption in favor of Mr. and Mrs. Pierce. From that decree Harry Levine and Norma Lee Levine have appealed.

The evidence in the case does not establish any degree of unfitness on the part of Mr. Levine, or of his mother, to have the custody of Jennifer. It is likewise clear that the original consent to the adoption of Jennifer by Mr. and Mrs. Pierce was withdrawn, prior to the rendition of the interlocutory decree herein rendered.

It is clear that, prior to the enactment of Act 686 of 1979 (R.S. 9:422.3-422.12), an interlocutory decree of adoption could not issue in cases in which the natural parents had not consented, or had revoked their consent, to the adoption. Moreland v. Craft, 244 So.2d 37 (La.App. 3rd Cir. 1971). Since both the voluntary surrender and the notarial revocation thereof in this case were exécuted prior to September 7, 1979, the effective date of Act 686, that statute can have no bearing on this ease, even though the trial and the judgment took place thereafter.

In this case, Mr. Levine has neither lost nor forfeited his parental right to the child Jennifer Lynn by abandonment, surrender or failure to support under a court order. R.S. 9:402, 403, 422.1. He has timely revoked the consent which he executed in April, 1979, by a notarial revocation dated July 26, 1979, and filed in the record of this case on August 31, 1979. He has actively opposed the adoption from the inception of the case. Under those circumstances, the interlocutory decree was improvidently granted by the trial judge.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein dismissing the adoption proceeding filed by Alvin W. Pierce and Vicki Ann Pierce, and ordering that the child, Jennifer Lynn Levine, be returned to the custody of Harry Levine and Norma Lee Levine. All costs shall be paid by Alvin W. Pierce and Vicki Ann Pierce.

REVERSED AND RENDERED.


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    Willie Mae McGOWAN, Individually and in her Capacity as Tutrix on Behalf of Mary Lee Wilson v. Joseph Milton POCHE.
    No. 13762.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Nelson D. Taylor and Gail Horne Ray, Baton Rouge, for plaintiff-appellant Willie Mae McGowan, Individually and in her capacity as tutrix on behalf of Mary Lee Wilson.
    Kenneth R. Williams and Stephen C. Riedlinger, Baton Rouge, for defendant-ap-pellee Joseph Milton Poche.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The question raised by plaintiff in this appeal is res nova. The issue is whether the procedural device of summary judgment is available in a paternity suit in which blood tests are admitted as evidence or whether there must be a full trial with an examination of the expert who has performed the blood tests. We find the procedural device of summary judgment is not appropriate and therefore reverse and remand.

Plaintiff-appellant Willie Mae McGowan, individually and in behalf of the minor Mary Lee Wilson, filed a paternity suit naming Joseph Milton Poche as defendant. Ms. Wilson sought to have Mr. Poche declared to be the biological father of Mary Lee Wilson and asked for $400.00 monthly for the child’s support.

Plaintiff moved to have the court appoint experts to conduct blood tests in accordance with LSA-R.S. 9:396 et seq. The court appointed the Pathology Clinic to conduct the tests. After analyzing samples of blood taken from Willie Mae McGowan, Mary Lee Wilson and Joseph Milton Poche, Dr. Albert McQuown of the Pathology Clinic rendered a report stating he found a double exclusion of paternity. The report reads as follows:

“There is a contradiction to the laws of theritical (sic) expectancy in the following:
1. A father of group ee with a female of group ee can not have a child of group Ee.
2. A father of group Lea( + ), Leb(-) with a female of group Lea(-), Leb(-) can not have a child of group Lea(-), Leb( +).
“Since the alleged father (Mr. Poche) is group O CDe/ce, Lea( +), Leb(-) and Mrs. McGowan is O cDe/ce, Lea(-), Leb(-) there exists a double exclusion of paternity”

Dr. McQuown subsequently stated his findings in an affidavit which was filed into the court record. Defendant moved for a summary judgment in accordance with La. Code Civ.P. art. 966, asserting the pleadings and affidavit showed there was no genuine issue of material fact. In opposition to the motion plaintiff filed an affidavit stating Joseph Poche was the biological father of Mary Lee Wilson and no one else could possibly be the father in that Mr. Poche was the only individual with whom she had sexual intercourse near the probable date of conception. The Family Court granted the motion for summary judgment stating in the judgment the defendant was not the biological father of Mary Lee Wilson.

Plaintiff appealed, arguing the language of LSA-R.S. 9:397 precludes the use of a summary judgment. A summary judgment is available under La.Code Civ.P. art. 966 and is appropriate in all cases where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. The language of LSA-R.S. 9:397 is as follows:

“The tests shall be made by experts qualified as examiners of blood types who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts, qualified as examiners of blood types, perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of such experts shall be determined by the court.”

The effect of the blood tests is specified in LSA-R.S. 9:397.2

“If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence. If the experts conclude that the blood tests show the possibility of the alleged father’s paternity, admission of this evidence is within the discretion of the court, depending upon the infrequency of the blood type.”

Plaintiff was given additional time in which to employ another expert or to otherwise challenge the validity of the blood tests, but failed to do so. The question of paternity was then resolved in favor of defendant by granting of his motion for summary judgment.

Plaintiff contends although summary judgment would ordinarily be appropriate, the specific language of LSA-R.S. 9:397 mandates the experts “shall be called by the court as witnesses” and “shall be cross-examined” so as to preclude the use of a summary judgment. We have resorted to the general rules of construction of statutes to solve this matter.

The procedural device of a summary judgment is generally available in all types of civil cases. It is found in the Louisiana Code of Civil Procedure, Book II (Ordinary Proceedings), under Title I (Pleadings), Chapter 4 (Written Motions). Therefore, without specific limitations, this device should be available in any ordinary proceeding. Plaintiff insists the language of LSA-R.S. 9:397 carves out an exception to the general availability of the summary judgment. We agree. La.Code of Civ.P. art. 966 can be given no effect in the context of a paternity suit involving blood tests.

It is a general rule of statutory construction that a court should construe an expression in a statute so as to give it effect rather than to render it meaningless. Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App.3d Cir. 1976).

A careful reading of the Uniform Act on Blood Tests to Determine Paternity, enacted as R.S. 9:396 et seq., leads us to the conclusion our legislature intended, due to the nature of the subject matter, to provide a carefully regulated evidentiary procedure having precedence over laws of general applicability. At the beginning of the first section of the Act is the familiar proviso negating any other provision of law to the contrary.

The thrust of the statute is to make available scientific evidence, adduced through medical experts appointed by the court and called to testify by the court. Appropriately, the right to cross-examine these experts is mandatorily reserved for both sides to the controversy. The language is explicit and must be given effect. The underlying reason for the right to cross-examine is set forth in an interesting article on the subject of blood tests to determine paternity. It is explained:

“The wisdom of the provision providing for cross-examination of experts cannot be over-emphasized, since blood test re-suits are not quite cut and dried. Cross-examination might point out the less than conclusive nature of the particular tests administered, or develop evidence of scientific disagreement as to the significance of its results. The possibility exists that the tests were inefficiently administered.” Harris, Some Observations on the Un-Uniform Act on Blood Tests to Determine Paternity, 9 Villanova Law Review 59, (1963). See footnote 27, at p. 66.

When one examines the conclusions of Dr. McQuown, contained in his report and in his affidavit, the need for emphasis on the right to cross-examine becomes apparent. In his report, Dr. Quown stated “there exists a double exclusion of paternity.” In his affidavit, Dr. McQuown concludes: “the laws of theoritical expectancy indicate that Joseph Milton Poche is not the father of Mary Lee Wilson, child of Willie Mae McGowan.” Obviously, there is no definitive evidence before the court and expert knowledge is called for to explain in lay terms the probabilities of paternity. Cross-examination is by far the most suitable tool to explore for meaning of the scientific terms.

Assuming, arguendo, a summary judgment is appropriate in cases involving the use of blood tests to determine paternity, and pretermitting the question of whether there existed a genuine issue of material fact, we find mover was not entitled to summary judgment as a matter of law. La.Code Civ.P. art. 966. The statute clearly requires the appointment of experts who shall be called by the court to testify to their findings. Here, the court designated the Pathology Clinic to conduct the tests. Experts were not appointed. Dr. McQuown responded as the Director of the Clinic. Such procedure is clearly not contemplated by the statute. At least two individual experts should have been appointed.

For the foregoing reasons, the judgment of the Family Court is reversed and this case is remanded for further proceedings consistent with this opinion. Defendant-ap-pellee is to pay all costs of this appeal.

REVERSED AND REMANDED.


text:
    Mary Louise Martin JONES v. Ronald Bamber JONES.
    No. 13804.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Paul M. Hebert, Jr., Baton Rouge, for plaintiff-appellee Mary Louise Martin Jones.

      David K. Balfour, Baton Rouge, for defendant-appellant Ronald Bamber Jones.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This court, ex proprio motu, examined the record and found an apparent defect in the appeal taken, to-wit, the timeliness of its filing. Accordingly, we ordered the parties to show cause why the appeal should or should not be dismissed.

The record reveals the following chronology:

1. Judgment rendered in Open Court _January 21, 1980
2. Judgment read and signed in Open Court _January 28, 1980
3. Application for new trial_January 24,1980
4. Judgment signed, denying application for new trial_February 13,1980
5. Motion for a stay order (addressed to district court) _February 13,1980
6. Motion for a stay order denied ..February 13,1980
7. Application for supervisory writs___February 14,1980
8. Application for supervisory writs denied_February 28, 1980
9. Motion for appeal _March 27,1980

La. Code Civ.P. art. 3943 provides an appeal from a judgment awarding alimony can be taken only with the delay provided in article 3942. Article 3942 provides for a delay of thirty days from the applicable date set forth in article 2087. Thus, the delay in this instance begins to run from the court’s refusal to grant a new trial [art. 2087(2)] or, if the notice has been requested, from the date of the mailing of the notice of the court’s refusal to grant the new trial. [Art. 2087(3)].

There is nothing in the record or in appellant’s brief to indicate a request was made for notice of rendition of judgment granting or refusing the new trial. Since the judgment was signed on February 13, 1980, the last day to timely appeal was March 14, 1980. This appeal was granted on March 27, 1980.

Appellant contends his application for supervisory writs suspended the running of time for appeal until it was denied by this court on February 28, 1970. Although he claims he had thirty days from the denial in which to appeal, he does not cite any cases or statutes to support his argument. The Third Circuit recently held the application for supervisory writs had no effect on the delay for filing an appeal. Guillory v. Hartford Insurance Company, 383 So.2d 144 (La.App.3d Cir. 1980). We agree with the reasoning of the Third Circuit and dismiss this appeal. Appellate courts do not acquire jurisdiction of appeal which is not timely perfected. Appellant is to pay all costs of these proceedings.

APPEAL DISMISSED.