author: GULOTTA, Judge. REDMANN, Judge,

text:
    James C. SMITH v. A. K. ROY, INC.
    No. 11425.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      J. Wensles Parra, Jr., New Orleans, for plaintiff-appellant.
    Gordon K. Konrad, Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GULOTTA, Judge.

James C. Smith appeals from the dismissal of his suit to have declared valid a joint venture agreement between him and the defendant for the construction and sale of weekend homes in St. Tammany Parish. According to the terms of the May 18, 1977 agreement, Smith had the responsibility of constructing these homes and A. K. Roy, Inc. was to be the listing agent for their sale. A model home was to be constructed on a lot to be purchased by Smith.

The heart of the controversy surrounds the interpretation of the following part of the agreement:

“SECTION II
CONDITION PRECEDENT
This covenant shall be null and void and totally without effect unless Smith acquires title to the hereinafter described model home property by June 1, 1977.”

It was not until June 6, 1977 that Smith purchased the lot on which the model home was built.

The trial judge, in reasons for judgment dismissing plaintiff’s suit, concluded with the following:

“Accordingly, the Court concludes that the contract was rendered null and void by the nonfulfillment of the suspensive condition.”

It is plaintiff’s contention that although title to the lot was acquired after the specified date of acquisition, both parties to the agreement went forward and performed their respective obligations under the May 18 contract. Plaintiff claims that he continued with the construction of the model home and that Roy advertised in the news media for the sale of the property and paid utility bills incurred for the model home subsequent to June 1,1977. Because of this performance by defendant, plaintiff asserts that A. K. Roy, Inc. is estopped from claiming non-existence or dissolution of the contract. Plaintiff reasons that under these circumstances a novation came into existence.

Smith further claims that Section II of the agreement contains a resolutory condition under which the obligation took effect immediately, and could only be dissolved if the condition were not fulfilled. See LSA-C.C. art. 2021. He reasons further that because the fulfillment of the resolutory condition is dependent upon the will of one of the parties, dissolution does not take place of right but must be obtained by suit or exception. See LSA-C.C. art. 2047. He points out that defendant has not filed for dissolution but has acquiesced in the untimely purchase of the lot by performing contractual obligations subsequent to the crucial purchase date. Finally, Smith contends that the time in which he was to purchase the lot expired because he “had no control over whe'n the act of sale was to have been passed.”

We find no merit to these contentions. The premise upon which plaintiff seeks to prevail is that the condition in Section II of the agreement is a “resolutory” condition. However, we find this agreement contains a suspensive condition, not a resolutory one. Furthermore, LSA-C.C. art. 2038 provides:

“When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen.”

A suspensive condition is defined in LSA-C.C. art. 2043 as follows:

“The obligation contracted on a suspen-sive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.”

The language in Section II of the agreement is clear. The contract provides that the agreement is null and void unless the property is acquired by June 1, 1977. Further, Section XII of the agreement states: “This agreement shall go into effect on June 1, 1977; ...” When we consider the important language in the agreement, together with LSA-C.C. art. 2021 (which provides that if the obligation is not to take effect until the event happens, the obligation contains a suspensive condition) and LSA-C.C. arts. 2038 and 2043, we conclude the condition in this contract is a suspensive one.

Reading the codal articles together with the agreement, we conclude the agreement did not take effect since the suspen-sive condition was not fulfilled. The contract is null and void. Under these circumstances, no rights flow to either party. The contract is as if it were not confected. See Zemurray v. Boe, 235 La. 623, 105 So.2d 43 (1958); Boudreaux v. Elite Homes, Inc., 259 So.2d 669 (La.App. 4th Cir. 1972), writ denied 261 La. 1061, 262 So.2d 42; Guichard v. Greenup, 259 So.2d 93 (La.App. 4th Cir. 1972).

Having so concluded, it necessarily follows that a novation could not have come into existence and the theory of estoppel, waiver or acquiescence is not viable.

Finally, there is no merit to plaintiff’s contention that because A. K. Roy, Inc. owned the lot and either delayed or contributed to the delay for the passage of the act of sale, plaintiff had no control over acquisition of the ground prior to the expiration date. The evidence is clear that defendant did not own the lot and did not fail to cooperate with plaintiff in the acquisition. James Roundtree, an employee of A. K. Roy, Inc. who drafted the joint venture agreement, testified that the act of sale was set prior to May 31st but attempts to contact Smith were to no avail and Smith had failed to appear at the scheduled time.

Accordingly, since the suspensive condition in the agreement was not fulfilled and the fulfillment was not prevented by either party, the contract was null and no rights flowed to either party. We affirm the trial court’s judgment dismissing plaintiff’s suit.

AFFIRMED.

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

The preamble to the joint venture agreement (drafted by Smith) included “and whereas Roy owns or will acquire the land hereinafter described for the model home also hereinafter described;” and Sec. XII of the agreement provides “The model home shall be sold upon termination of this agreement or upon mutual agreement of the parties, whereupon the parties agree to execute an act of sale wherein Smith will pay Roy $8,900 for the lot plus 6% commission on the sale price of the model home [net of lot cost].” (Emphasis and bracketed material added.)

In that context and in the further context that Smith, with Roy providing foundation materials and electricity, began building the model home several days before June 1, the “condition precedent” was intended primarily to establish a time at which both parties could know the venture was in force; and that condition was effectively amended by the parties by their continued performances and acceptance of performances under the joint venture agreement both before June 1 and thereafter notwithstanding that neither Smith personally nor Roy personally executed the purchase and sale of the model lot, as and when spelled out in the joint venture agreement.

The judgment appealed from should be reversed, and there should be judgment de-daring the joint venture agreement of May 18, 1977 in force until its contractually-authorized termination by Roy’s letter of July 27, 1978.

      . The credit sale is signed by a representative of Lake Vista Estates, Inc., the vendor, and by Smith as president of Boar Tusk Lodges, Inc., the vendee.

      . LSA-C.C. art. 2186 reads as follows:
      “Art. 2186. To constitute a novation, there must be, at the time it is made, a valid obligation on which it can operate; if the first obligation, which it is intended to replace by the new one, be void, or if there be no such obligation, then the new obligation [is] of no effect.”

      . LSA-C.C. art. 2021 reads as follows:
      “Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happens, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.”

      .LSA-C.C. art. 2047 reads as follows:
      “Art. 2047. In all cases the dissolution of a contract may be demanded by suit or by exception; and when the resolutory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.”

      . See LSA-C.C. art. 2186, supra footnote 2.

      . The trial judge properly permitted Roundtree to testify, over plaintiff’s objections. Plaintiff complained that Roundtree was not listed in the pretrial order. However, the trial judge permitted the testimony in rebuttal of plaintiffs testimony that arrangements had been made by Roundtree for the act of sale to be passed on June 1, 1977 and that Roundtree took Smith to the attorney’s office where the act of sale was to have been passed, but the office was closed.

      . LSA-C.C. art. 2040 reads as follows:
      “Art. 2040. The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.”


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Lawrence LoBRONO et al. v. GENE DUCOTE VOLKSWAGEN, INC. et al.
    No. 11455.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.
    Dan R. Dorsey, River Ridge, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, Adrianne I. Landry, D. J. Mitchell, New Orleans, for plaintiffs-appellees.
    Michael D. Zelden, Metairie, for defendant-appellee.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Winn, J. David Forsyth, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GULOTTA, Judge.

These consolidated suits arose out of an automobile accident that occurred on October 10, 1978, when Mrs. Mary LoBrono drove her automobile in reverse gear with the motor racing at a high speed. Mrs. LoBrono had driven her daughter and her daughter’s friend to a home in a residential area in Harvey, Louisiana, turned off the engine, and parked the automobile momentarily while talking with her daughter who had gotten out of the vehicle. While the two young girls were in close proximity to her car, she started the engine and put the car in reverse, whereupon the racing engine caused the automobile to spin out of control in reverse, striking the daughter and backing at high speed into the home of Arthur Leonard, a plaintiff in one of these consolidated suits.

In the first-filed suit, based on a claim of defect in an automobile, Lawrence LoBrono seeks recovery against Gene Ducote Volkswagen and Volkswagen of America, for his daughter’s personal injury and his automobile damage. Gene Ducote Volkswagen and Volkswagen of America, in separate third-party demands against Mrs. Mary LoBrono, seek indemnity and/or contribution based on the claim that the accident was caused solely from Mrs. LoBrono’s negligence. Plaintiffs’ insurer filed an intervention against Ducote and Volkswagen of America, seeking recovery for the amount paid in property damage for the repairs of plaintiff’s automobile.

In the second-filed suit, the owner of the home damaged in the accident, and his insurer seek recovery against LoBrono, his liability insurer, Gene Ducote Volkswagen and Volkswagen of America. These suits were subsequently consolidated. Thereafter, LoBrono’s claims against Ducote and Volkswagen of America were compromised. The matter then went to trial on the claim of Arthur Leonard and his insurer, State Farm Fire and Casualty Company, for their claim against Cumis Insurance Society, Inc., LoBrono’s liability insurer, Ducote and Volkswagen of America.

The trial judge, in written reasons, concluded that there existed “two proximate causes” of the accident, i. e., the negligence of Mary LoBrono and the existence of a defective accelerator cable. Judgment was rendered in favor of Arthur Leonard and his insurer against LoBrono’s insurer, and Volkswagen of America, in solido. Ducote was exonerated from liability and all other third-party claims, interventions and recon-ventional demands were dismissed. Cumis and Volkswagen of America appeal.

LIABILITY OF VOLKSWAGEN OF AMERICA

The basis of the claims against Volkswagen of America is the allegedly faulty or defective design of the accelerator cable that resulted in the “sticking” of the inner-metal strip of the accelerator cable when the pedal is depressed, causing the uncontrolled racing of the automobile engine. In product liability cases, the rule is well established that a manufacturer of a product that involves a risk of injury to the user is liable if an injury is caused without fault of the user by the defect of the product. See Weber v. Fidelity & Casualty Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971); Walter v. Valley, 363 So.2d 1266 (La.App. 4th Cir. 1978); Leaber v. Jolley Elevator Corp., 354 So.2d 746 (La.App. 4th Cir. 1978), writs refused 356 So.2d 1004, 1010. A defective product has been defined in those cases as one that is “unreasonably dangerous to normal use.” See Weber v. Fidelity & Casualty Co. of N. Y., supra. The test then is whether the evidence established that the dangerous racing of the automobile engine was caused by a faulty or defective design of the accelerator cable or accelerator housing when the automobile was in normal use.

Dana LoBrono, the injured daughter of the driver of the automobile, stated that she had driven the automobile prior to the accident, had ridden in it with her parents, and had never had any problem with the accelerator sticking or causing trouble. Although plaintiff Lawrence LoBrono stated that he had made complaints to Gene Du-cote Volkswagen about the gas pedal or linkage sticking, he stated when he had driven the automobile away from the accident scene on the night of the accident, he had no trouble with the accelerator cable sticking. He indicated also that the brakes were operating normally and he had encountered no trouble with the gear shift. Docute’s repair orders prior to the accident indicated that LoBrono had made complaints regarding the idle adjustment because the automobile “dies”; no complaints were indicated on the repair order that the automobile was accelerating.

Mary LoBrono, the automobile driver, testified that upon bringing the automobile to Ducote on September 15, 1978, approximately three weeks prior to the accident, she complained about the accelerator. Although her testimony was somewhat confusing, she stated that prior to the accident neither she nor her daughter had experienced any problem with the sticking of the accelerator. Although her husband had mentioned to her that the automobile would “rev up” when he started the car and had suggested that she tap the accelerator, she indicated that he had said nothing about the accelerator sticking.

Fred Liebkmann, a consulting mechanical engineering expert on whom the trial judge “relied heavily”, testified that his examination of the automobile after the accident did not reveal any “hangup” when he pressed the accelerator pedal. He stated also that he had noticed no hangup while looking under the hood as LoBrono was pressing the accelerator pedal. However, his examination of the accelerator cable inside the engine revealed sticking of the accelerator when the cable was manually depressed (inside the engine) approximately one inch. According to Liebkmann, because of a defective design the accelerator cable bends under a vacuum hose inside the engine at an almost ninety degree angle and pressing the cable downward causes a “kink” in the cable resulting in the sticking of the accelerator. Liebkmann explained that this defect in design resulted in a tendency of the engine to race.

Richard Berger, Gene Dueote's service manager, stated that on October 26, 1978, at Mrs. LoBrono’s request, he inspected the automobile for accelerator sticking. He found no sticking, accelerator cable or fuel line problem. Disconnecting and bending of the accelerator cable by Berger did not result in any sticking of the accelerator rod or cable. According to this witness, the cable is designed to be flexible. He explained that the purpose of using plastic strapping, after the accident, to bind the accelerator cable to another piece of tubing in the engine compartment was only to prevent the cable from rubbing against the vacuum line. He stated that use of this plastic strapping had no other significance, and was not in any way related to complaints of accelerator sticking, or used to prevent any such sticking.

As pointed out hereinabove, in a product liability case it is plaintiff’s burden to establish a defect that is unreasonably dangerous to normal use. The uncontra-dicted lay and expert testimony is that acceleration testing under normal use did not result in accelerator sticking.

Although Liebkmann testified that the defect in design of the accelerator cable allowed accelerator sticking, his conclusion was not supported by testing under normal use. The depression of the cable inside the engine approximately I-IV2 inch with his fingers was testing conducted under abnormal conditions. Thus, it was only testing under abnormal use that resulted in sticking. Under these circumstances, we cannot conclude that plaintiff carried the required burden of establishing liability of the manufacturer or, in this case, of the manufacturer’s distributor, V.O.A. Having so concluded, we hold no entitlement to recovery exists against Volkswagen of America, Inc.

We do not base our findings on a manifest error of fact but on an insufficiency of evidence, an error of law.

LIABILITY OF GENE DUCOTE VOLKSWAGEN, INC.

Because of our findings, no necessity exists to consider the question of entitlement to recovery against Gene Ducote Volkswagen, Inc.

LIABILITY OF MARY A. LO BRONO

Although the trial judge found that Mrs. LoBrono was negligent, and this negligence was a “proximate cause” of damages, he failed to state a factual basis for this finding.

Mrs. LoBrono’s testimony, although not clear, when taken as a whole, indicates that in accordance with her husband’s suggestion she tapped the accelerator before starting the engine. After it had started, she again tapped the accelerator because it was racing slightly and then placed the car in reverse; however, the racing and revving increased appreciably. She stated that she could not take the car out of reverse gear, that pressing on the brakes had failed to stop the movement of the car and that it had spun uncontrolled into the Leonard house.

The uncontradicted testimony is that examination of the automobile subsequent to the accident indicated no transmission, brake or accelerator problems. Although not articulating with specificity those facts upon which he relied for his finding of negligent operation of the automobile by Mrs. LoBrono, the possibility exists that the trial judge’s conclusion was based either on LoBrono’s negligent or inadvertent stepping on the accelerator when she attempted to apply the brakes after the car was placed in reverse, or on her failure to neutralize the car when confronted with a sudden emergency. Whether liability is sought to be attached to Mrs. LoBrono by virtue of LSA-C.C. art. 2317 for damage occasioned by those things under one’s control or by an evidentiary presumption of negligence under a res ipsa loquitur theory from which she failed to exculpate herself, the fact remains that the automobile, absent proof of a defect, sped uncontrolled in reverse while being driven by her. Under these circumstances we cannot conclude the trial judge manifestly erred in his factual conclusion that the damage resulted from the negligent operation of the vehicle by Mrs. LoBrono.

DECREE

Having so concluded, we reverse and set aside the judgment of the trial court. Judgment is now rendered dismissing Arthur L. Leonard and State Farm Fire and Casualty Company, Inc.’s suit against Volkswagen of America, Inc. and Gene Du-cote Volkswagen, Inc. Judgment is further rendered dismissing Cumis Insurance Society, Inc.’s intervention against Volkswagen of America and Gene Ducote Volkswagen, Inc. Judgment is further rendered in favor of State Farm Fire and Casualty Company and against Cumis Insurance Society, Inc. in the sum of $4,997.77, with legal interest from date of judicial demand until paid. Judgment is further rendered in favor of Arthur L. Leonard and against Cumis Insurance Society, Inc. in the sum of $100.000, with legal interest from date of judicial demand until paid. Costs to be paid by Cumis Insurance Society, Inc.

REVERSED, SET ASIDE, AND RENDERED.

      . Because of our conclusion no necessity exists to consider V.O.A.’s claim that plaintiff failed to establish that V.O.A. was a distributor for the manufacturer and would stand in the shoes of the manufacturer in accordance with Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., 262 La. 80, 262 So.2d 377 (1972).

      . LSA-C.C. art. 2317 reads as follows:
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


author: SCHOTT, Judge. /s/ Nestor L. Currault JUDGE

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. John W. FRABBIELE et ux.
    No. 11352.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    William W. Irwin, Jr., Johnie E. Branch, Jr., and Robert L. Ledoux by Bryan Miller, Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant.
    Harold E. Kytle, Kenner, for defendant-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

This case was previously before this court on appeal by the State of Louisiana through Department of Highways from a judgment which awarded defendant land owner the sum of $303,634 as an increase in the value of his property plus severance damages over and above the sum which the Department had deposited in the registry of the court. The judgment had also awarded attorney fees in the amount of $75,908, being 25% of the amount of the increase. See State, through Dept. of Hwys. v. Frabbiele, 372 So.2d 234 (La.App. 4th Cir. 1979). We remanded the case to the trial court because the original record did not contain evidence in support of the amount of attorney fees awarded by the court. Following trial on the remand the trial court awarded attorney fees in the amount of $75,908, and from that judgment the Department (now referred to as Department of Transportation and Development) has appealed.

The Department has raised two issues on the appeal. First, it contends that the district court exceeded its authority in deciding the amount of the fee since the remand was limited to its taking of evidence relating to the proper amount of the attorney fees. Second, the Department contends that the amount of the fee awarded is excessive.

In the earlier appeal, we were concerned with the trial court’s compliance with LSA R.S. 48:453 which provides as follows:

“E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

According to this statute the trial court was vested with discretion in awarding reasonable attorney fees which could not exceed the amount which he awarded since that amount was 25% of the difference between the award and the amount deposited in the registry of the court. In our decree we annulled that part of the judgment awarding the attorney fees and ordered a remand to the trial court “solely and entirely for the purpose of permitting testimony to be offered in connection with the amount of attorney’s fees to be assessed.”

The Department takes the position that the trial court’s function under our order of remand was in the nature of a hearing examiner who would collect evidence and simply transmit that evidence to this court for an adjudication with respect to the amount of the fee. However, this overlooks the basic distinction between the functions of the trial court and the appellate court in our system of justice. The trial court is in a position to see and hear the witnesses who testify and to evaluate their credibility and assign the proper weight to their testimony. The function of the appellate court is to determine whether the trial court has committed error in the exercise of its functions. The statute in question provides that reasonable attorney fees may be awarded by the court which implies that the trial court is vested with discretion in the matter and the function of the appellate court would be to determine if the trial court has abused that discretion. Thus, we conclude that the procedure employed by the trial court in this case was proper and he did not exceed his authority in arriving at an adjudication of the amount of attorney fees to be awarded in this case based on the evidence presented to him.

As to the amount of attorney fees awarded in this case, the trial court in his reasons for judgment referred to Guillory v. Guillory, 339 So.2d 529 (La.App. 4th Cir. 1976). Copy of his reasons for judgment is made an appendix to this opinion. The trial judge considered each of the criteria announced in the Guillory case, applying those criteria to the instant case and concluded that the maximum amount allowed by the statute was the appropriate one in this case. The record supports this conclusion and the amount of the award was within the discretion given the trial court by the statute.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

APPENDIX

TWENTY FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA

NO. 197-338 " DIVISION: “C”

STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT

VS.

JOHN W. FRABBIELE, ET UX

REASONS FOR JUDGMENT

The Highway Department in its opposition to the amount awarded cited Guillory v. Guillory, 339 So.2d 529, being a Fourth Circuit Court of Appeal case. On page 531 of the Guillory decision, Judge Samuels said, “While we agree that the number of hours spent by an attorney is a factor to be considered, this alone does not determine the fee. The factors most often considered in the determination of the fee to be awarded an attorney on the basis of quantum meruit are: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount involved; and, (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney, the number of appearances made, the intricacies of the fact and law involved, the diligence and skill of counsel and the court’s own knowledge relative to what has occurred in the case by virtue of the fact that the matter is handled before him and hears the testimony firsthand, handles all the pretrials, et cetera which gives him an insight as to what is going on and (11) the ability of the party to pay.”

The award in this case was some $303,-000.00 over the amount which the Highway Department had originally deposited in connection with the quick taking statute, Title 48:441 et seq. The court notes that in connection with this matter that when we talk about the guidelines set out by the Guillory case that certainly the ultimate result obtained in connection with this matter was certainly a quality performance by counsel for the landowner and in connection with the responsibility incurred certainly when we look at these matters this was a matter of tremendous importance to the landowner whose property had been taken in light of the testimony that he has given today to the effect that all of his life efforts of he and his wife were in this property. Further that the State has previously expropriated a piece of property sometime before for $160,000.00 and that when he went to buy the property back it cost him some $715,000.00.

Accordingly, there was a great responsibility on counsel for the landowner in connection with a man who has a piece of property which represents his total life’s efforts and represents what this man has worked for and which in the ordinary course of things he would have but for the expropriation suit to look forward to in the remaining years of his life and his wife’s life. Certainly from the facts of this case this was indicative of the amount that was involved. There is no question in the court’s mind that Mr. Kytle is a skilled attorney. The record indicates that in previous years he was attorney for the City of Kenner and then served as attorney for the Parish of Jefferson where certainly in both instances he had supervision in connection with expropriation done by the City of Ken-ner and certainly had supervision in connection with his duties as Parish Attorney in connection with expropriations by the Parish of Jefferson.

In connection with the appearances made this is part of the total picture. The actual trial of this matter after a short pre-trial and a short lunch period lasted until 9:00 P.M. at night and of course, the court is interested in connection with that portion of the actual trial as to the quality of the work performed. There is no question that counsel had to have his own experts in this matter. The matter was an intricate portion of the case relative to the damages and there is no question that counsel had to be familiar with the actual property involved and had to be skilled in the law that applied to this case.

The court finds that counsel was diligent and was skilled.

In connection with this matter the court rendered a judgment of $75,908.00 for attorney’s fees after having heard all of the testimony involved in this matter the court feels that the testimony in this case solidifies the court’s original opinion and the court finds that in connection with the attorney’s fees sought in this matter that there should be judgment in favor of the landowner in the amount of $75,908.00.

This court was aware of the Guillory case and the factors cited in that case to be used as a guide in establishing a reasonable fee. It is these factors that this court considered in first arriving at the fee awarded.

On remand, Mr. Martin Kelly, Mr. Cecil Burglass and Mr. Wesley Wambsgans each testified that they examined Mr. Kytle’s voluminous file and the court record. Each of these three attorneys testified that they were experienced in establishing attorney’s fees and each had practiced law for twenty years or more. Each attorney felt the twenty-five per cent awarded in this case was reasonable. Mr. Burglass especially convinced the court the award was reasonable and in line with cases handled in this district by local attorneys. Mr. Kytle himself testified under cross examination that he worked well over 200 hours on this case. He told of the numerous hours spent in preparation and research. Mr. Frabbiele testified he had a contingency fee contract with Mr. Kytle that called for 25% of the amount awarded in excess of the amount deposited by the Highway Department in the registry of the court. The testimony of these attorneys solidifies the court’s original opinion.

The Highway Department in its memorandum of opposition filed in the Court of Appeals questioned the award because the amount was large. The court notes that had the Highway Department deposited a more reasonable amount, the attorney fees would have been much less. In fact, as in all contingency fee contracts, counsel for the landowner could have received no fee at all.

In summary, the court affirms the original award of $75,908.00. The court considers the amount reasonable. All facts were uncontroverted by the State.

GRETNA, LOUISIANA, This 27 Day of November. 1979.

/s/ Nestor L. Currault JUDGE


author: SCHOTT, Judge.

text:
    George S. GUION, Jr. et al. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 11444.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.

      William W. Irwin, Jr. and Jesse S. Guil-lot, New Orleans, for defendants-appellants.
    Gary T. Breedlove, Francipane, Regan & St. Peé, Metairie, for plaintiff-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

This is an action for compensation for property taken from plaintiff by defendant, the State Department of Transportation and Development, for the construction of Interstate Highway 10 in Jefferson Parish. From a judgment in favor of plaintiff for $5,394 land value plus $2,000 in attorney fees and $1,000 of appraiser’s fees the Department has appealed. The issues raised by the Department are 1) the claim prescribed pursuant to LSA R.S. 13:5111; 2) the land taken from plaintiff resulted from a shortage of property in Kenner Project Subdivision where the property is located and the shortage of property should be prorated among the Department and the other owners of property in the subdivision; and 3) plaintiff failed to carry his burden of proof with respect to the amount of land taken and the awards for land value and attorney and appraisal fees.

In January, 1963, plaintiff acquired lots 40, 41 and 42 of Square 173, Sec. 8, Kenner Project in Jefferson Parish, measuring 20 X 120 feet each for a total frontage on Sharon Street of 60 feet. On April 16, 1968, the Department purchased from plaintiff five feet of frontage for inclusion in the right-of-way of Interstate 10. After plaintiff’s wife died in April, 1975, plaintiff visited the property with an appraiser in connection with his wife’s succession and became suspicious that the highway was encroaching on his property. A survey made on October 13, 1976, demonstrated that the fence along the highway was' 26.35 feet beyond the five feet the Department purchased from plaintiff.

R.S. 13:5111 provides:

“. Actions for compensation for property taken by the state, or parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.”

Although the right-of-way fence was constructed on plaintiff’s property on February 16, 1971, and this suit was not filed until March 8, 1978, plaintiff’s property was located in an undeveloped and vacant area and plaintiff had no reason to suspect that the Department had built beyond the property it acquired from him until after April, 1975, when plaintiff’s wife died and her succession was opened. Thus, the circumstances of this case are identical to those prevailing in Powell v. Department of Highways, 383 So.2d 425 (La.App. 4th Cir. 1980), writs refused Sept. 12, 1980, in which we held that plaintiff’s claim under R.S. 13:5111 was not prescribed.

We turn next to the Department’s contention that the shortage of property in Kenner Project Subdivision was the cause of the highway’s being constructed on 26.35 feet of plaintiff’s land in addition to the 5 feet the Department acquired, and that the shortage of land should be prorated among all of the property owners in the subdivision rather than for the Department to bear the entire loss. We addressed this issue in the Powell case and in the earlier case of Chenevert v. Louisiana State Department of Highways, 345 So.2d 960 (La.App. 4th Cir. 1977). However, the Department has now supplemented its argument on the issue with a motion to remand the case to a trial court for the specific purpose of prorating the shortage among the land owners. Because of the added emphasis the Department now places on this argument and because the procedural device now being employed by the Department in order to accomplish proration was not present in the previous cases, it is now appropriate to confront the issue with more particularity than we did in the previous cases and decide it with specificity.

The record shows that an error occurred in 1927 when Kenner Project was surveyed and subdivided by S. E. Calongne. Section 8 of the Subdivision was bounded on the south by Canal 14 and on the north by Canal 13. The plan provided for Canal 13 to be in the middle of Ashland Avenue, a divided street running east-west with the south side of Ashland measuring 45 feet wide. The distance between the two canals was in excess of 2,000 feet. Square 173 where the subject property is located along with Squares 174 through 183 were all bounded on the north by the south side of Ashland Avenue, with each of these squares measuring in excess of 1,000 feet from the north on Ashland to Luverne Avenue on the south. They were divided generally into lots measuring 20 feet front from north to south by 120 feet deep. The same general plan of subdivision was carried out for Squares 184 through 192, bounded on the north by Luverne Avenue, and on the south by Frankfort Avenue. To the south of these squares, Squares 193 through 201 are bounded on the north by Frankfort and on the south by Salisbury Avenue, a street divided by Canal 14. The problem with Calongne’s survey was that there was not sufficient number of feet between the two canals to accommodate the number of lots and streets which Calongne called for on his survey, with the result that the side of Ashland Avenue on the south of Canal 13 was non-existent so that the northern boundary of Squares 173 through 183 was within two feet of the south side of Canal 13.

Many years before Interstate 10 was laid out on paper by Palmer & Baker, Engineers for the Department, the same engineers had laid out Veterans Memorial Highway which is parallel to and south of Interstate 10 in the area which is under discussion. Veterans Highway cut across the south ends of Squares 173 through 183, so that the subject square and the others were deprived of about 140 feet of north-south frontage with the construction of that highway. According to the Department’s head land surveyor, James R. Wheat, the shortage in the property became apparent to Palmer & Baker when Veterans Highway was laid out but no action was taken to address or correct the problem. When the right-of-way for Interstate 10 was laid out the center line of the highway was established 150 feet from the northern boundary of the subdivision but Palmer & Baker used as that northern boundary the south side of Ashland Avenue, which was in fact non-existent, instead of using the true boundary which was the south side of Canal 13. As a result the south side of the Interstate right-of-way encroached on the northern ends of Squares 173 through 183 to the extent that the south side of Ashland Avenue should have accommodated the highway right-of-way.

The Department takes the position that the shortage should be prorated among its own property, measuring 300 feet wide, along with all of the lots in the subdivision north of the right-of-way of Veterans Highway. In other words, the proration for the shortage of the entire Kenner Project Subdivision should be imposed upon itself and only those who own land in Squares 173 through 183. In his testimony, Mr. Wheat also proposed to limit proration to unimproved properties in the area such as plaintiff’s.

In disposing of this proposition in the Chenevert case we said the following:

“The state has sought to excuse itself from imposing this unconscionable burden upon Chenevert by asserting that Chenevert should have somehow caused a proration to be made of the survey error by prorating the error amongst all of the lots in the subdivision, and (recognizing the ridiculousness of that argument) by alternately alleging that proration should be made amongst those undeveloped lots in the last section of the subdivision. We cannot conceive why this should be Chenevert’s burden. The State hired the engineering firm of Palmer & Baker, Inc. to make the surveys in this area in the years 1957 and 1958 for the purpose of locating the proposed right of way, in order to determine which property was needed for highway purposes. The surveyor was aware of the survey error at that time and yet chose to ignore the situation, not even notifying the Department of Highways land acquisition section that there was a problem. If there is any fault to arise for lack of provoking a proration of the survey error amongst the property owners, it is upon the Highway Department surveyor and not Chene-vert.”

Now the Department seizes on the very first sentence quoted above to justify its motion to remand the case to the district court. It contends that it has assumed the burden by setting into motion the following provisions of R.S. 33:5054:

“Whenever land divided into town lots and sold in conformity with a plan, is not of the same extent as that mentioned in the plan, and the difference is more than one thousandth part, the surveyor, commissioned for the parish where said land is situated, shall apportion, in conformity with the civil code, the surplus or deficit of the land, and make a plan pointing out, according to the apportionment, the correct dimensions of each square and the breadth of each street. The plan shall be deposited by the surveyor of the parish in the office of parish recorder. Public notices shall be given by the surveyor in a newspaper published in the parish designated as the official journal or in an adjoining parish if there is none published in the parish, during thirty days, directing all persons interested to present their opposition to the plan deposited as aforesaid with the parish recorder, which oppositions shall be referred to and decided by the district court. The plan, when not opposed within the delay aforesaid, or when modified in the opposition filed, shall be registered by the recorder in his office, and shall be authentic evidence of the description and dimensions of the property.”

The Department argues that it is entitled to the remand in order to have the statute implemented. In support of its motion it has prepared a plan showing an apportionment of the shortage among hundreds of lots between Interstate 10 and Veterans Highway in Section 8 as well as Section 6 of Kenner Project. The Department alleges that it has already complied with this statute and the shortage has been prorated on a map revised in July, 1980. Therefore, plaintiff’s loss is limited to 19 inches of frontage on Sharon Street with the balance of the property he claims to have lost to the Highway now added to his property from his neighbors. This might be a convenient solution for the Department but it surely leaves plaintiff with the same “unconscionable burden” we spoke about in Chenevert.

We cannot help but characterize the Department’s proposed solution as an absurdity. As we pointed out in Powell, the case now under consideration is between the Department and one individual land owner. The extra property fenced in by the Department was plaintiff’s and he alone is entitled to compensation. Even if the supposed proration were legally supportable it occurred after this case was tried and long after plaintiff acquired the right to be compensated for his land.

Without deciding the validity vel non of the proration which the Department claims was accomplished we must observe that the statute contemplates the situation where all of the lots in a subdivision would have the shortage apportioned among them. It does not authorize the shortage be apportioned only among lots which conveniently lend themselves to apportionment. Pretermit-ting all other questions, the proration of Section 8 of Kenner Project would require that everything between Canals 13 and 14 be included-ineluding Veterans Highway, Interstate 10 and other streets.

Finally, it seems that the Department’s failure to take action leading toward proration over the many years which elapsed from the time it discovered the error when the Veterans Highway was laid out until the Interstate Highway was already constructed would have some bearing on its right to claim the benefit of such proration. In any event, we deal here only with the question of whose property was taken by the state without compensation and without expropriation. The answer is plaintiff’s and no one elses. Any idea of prorating plaintiff’s loss among others is purely fiction. Plaintiff alone is entitled to be compensated for the loss of his property. The Department’s motion to remand is denied.

Turning next to the amount of compensation awarded plaintiff. The judgment is for $5,394 with legal interest from July 16, 1979, (the date of the trial) plus $2,000 “in attorney fees on the principal and interest.” Plaintiff’s appraiser testified that the value of the land taken and severance damage to the remainder amounted to $3,375. This was based on a stipulated value of fifty one cents per square foot. The trial judge accepted this figure and added interest at seven per cent per annum from February, 1971, when the fence was installed to the date of the trial to arrive at the $5,394.

As to the $2,000 award of attorney fees, plaintiff testified that his contract with his attorney was on a contingent fee basis whereby his attorney would be paid one-third of any recovery made by him. That being so, the award of the trial judge was in excess of what was agreed upon between attorney and client. Although there is no evidence in the record of the time spent by the attorney it is apparent to us that a fee of one-third of the amount of principal and interest is justified.

Finally, the Department complains about the award of $1,000 for the appraiser’s fee. He testified that he had provided plaintiff with a written appraisal report for which he charged a fee of $800, and his fee for testifying in court was $200. We are not persuaded that this award constituted an abuse of the trial judge’s discretion.

Accordingly, the judgment appealed from is affirmed but is amended and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, George S. Guión, Jr. and against defendant, State of Louisiana, Department of Transportation and Development, in the sum of $3,375.00, together with legal interest from February 16, 1971, until paid; plus one-third of said amounts as attorney fees and for all costs of these proceedings. Expert fees are set at $75 to Surveys, Inc. and $1,000.00 to Albert Eason and are taxed as costs to be paid by defendant.

AFFIRMED, AMENDED AND RECAST.


text:
    LESON CHEVROLET, INC. v. Donald TRAPP.
    No. 11817.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.

      Stewart E. Niles, Jr. and Gary E. Meringer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    Nathan Greenberg, Gretna, Russell J. Schonekas, Bernhardt C. Heebe, New Orleans, for plaintiff-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

At a meeting of the board of directors of Leson Chevrolet Company, Inc., plaintiff, held on November 19,1979, defendant, Donald Trapp, was removed from office as plaintiff’s president and executive officer. On December 4 this suit was filed by plaintiff seeking injunctive relief against defendant from acting or attempting to act as president and chief executive officer of the corporation, appearing at the corporation’s premises in Harvey, Louisiana, interfering with the operation of the business or annoying or harassing the employees of the business. From the judgments granting preliminary and permanent injunctions defendant has appealed. The issues are whether his removal as president and chief executive officer was lawful and whether it was proper for the court to grant an injunction which, according to defendant, prevents him from discharging his duties as a member of plaintiff’s board of directors.

The meeting of November 19, 1979, was attended by Sidonia Leson Trapp, Sheila Trapp Boudreaux, Lillian L. Leson, Roberta Leson, Heinke E. Trapp and defendant. The vote on the removal of defendant from office was five to one with defendant casting the dissenting vote. Defendant contests the legality of this vote because Heinke E. Trapp and Lillian and Roberta Leson were not shareholders and were therefore ineligible to serve as directors under the following provisions of the corporation charter:

“All of the corporate powers and authority of this corporation shall be vested in and exercised by a board of directors composing of not less than three nor more than six shareholders . . . . ”

Conceding that the three directors were not shareholders at the time of the meeting plaintiff points out that they were previously shareholders and relies on another provision of the charter which provides that directors in office shall continue in the exercise of their duties until their successors have been elected. We see no need to address this issue since the vote on the removal of defendant from office was carried by a vote of two to one disregarding the three questioned directors.

Defendant argues, however, that the mere presence at and participation in the meeting by the questioned directors had the effect of nullifying the votes of the remaining directors because their votes were improperly influenced by the presence of the other three. We consider this pure speculation which is contradicted by the fact that the affidavit verifying the petition in this ease was signed by Sidonia Leson Trapp and Sheila Trapp Boudreaux who constituted the two to one majority and whose legal standing is not questioned. In any event, defendant has provided no legal authority for his position that majority votes of directors whose authority is unquestioned must be disregarded because they were joined in the vote by directors who are ineligible to serve on the board.

Much of the evidence taken at the trial concerned the performance of defendant’s duties as president prior to his removal. Considering that LSA R.S. 12:82 authorizes the board of directors to remove an officer with or without cause, this evidence was irrelevant. Defendant’s removal as president and chief executive officer was legally effective and thereafter he was only a director and a shareholder.

The more important issue in the case is whether the injunction prohibiting defendant from being on plaintiff’s premises is lawful considering that it interferes with the performance of defendant’s duties as a director.

LSA R.S. 12:81 provides:

“A. Subject to the provisions of the articles, the bylaws or this Chapter, all the corporate powers shall be vested in, and the business and affairs of the corporation shall be managed by, a board of directors of not less than three natural persons.”

This is practically identical to the provisions of plaintiff’s charter which we quoted earlier in this opinion.

Once the directors are chosen by the shareholders their power to manage the corporation is plenary and the powers of the officers and agents of the corporation are delegated to them by the board. See Cyclopedia of the Law of Private Corporations, Fletcher § 505 et seq.; 19 Am.Jur.2d § 1145 et seq. However, the board’s authority is collegial and does not belong to each individual member of the board. On the other hand, individual board members have potential liability such as that provided for in R.S. 12:91 et seq. and R.S. 23:1032 as interpreted by this court in Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), writs granted, 383 So.2d 1263. The question is whether this potential individual liability is such that defendant, as a matter of law, cannot be enjoined from visiting the premises of the corporation of which he is a director under the special circumstances of this case. These circumstances are best understood from the testimony of Jim A. Griffin who was appointed plaintiff’s general manager in place of defendant following the meeting of November 19.

Griffin’s testimony was as follows: After the November 19 meeting defendant simply continued to operate the dealership and to give directions to Griffin and the other employees as though he had not been terminated. If defendant were to return to the premises in any capacity, as president or otherwise, Griffin would leave the company as would the sales manager and the service manager. This is so because defendant’s previous position as president, the good relationship Griffin had with defendant in the past and the fact that defendant remains the largest shareholder would cause defendant to exert influence on the employees and would likewise lead Griffin and the employees to be influenced by him. Griffin stated:

“There’s no personalities involved on my part. I want that clearly understood. I think the world of the whole family as a whole. My job is to operate Leson Chevrolet, which I’m doing, and I think I’ve done a good job on it in what I’ve done and what I’m doing now. But, it goes back to common sense. I cannot serve two masters. You or no one else can. It would be that way.”

R.S. 12:82 and the charter of plaintiff provide for the selection of officers such as president, chief executive officer and general manager. If the corporation is to function smoothly these officers must be permitted to perform their duties without interference from individual members of the board once they have been selected by the board as a whole. The evidence is convincing that the corporation is functioning smoothly under Sidonia Lesoh Trapp as president, Heinke Trapp as chief executive officer, and Jim Griffin as general manager, and that the operation will be severely disrupted simply because of Donald Trapp’s presence on the premises at this time. We have concluded that the injunction against the defendant was properly fashioned after balancing the remote possibility of liability on the part of defendant against the real and present threat to the corporation by his being on the premises. It is significant that the injunction itself is tempered by a reservation to defendant of his right to move to amend that the injunction be changed when circumstances warrant such.

Defendant argues that we should follow the Alabama Supreme Court’s position in Johnston v. Livingston Nursing Home, Inc., 211 So.2d 151 (1968) in which the court set aside an injunction against a director from entering upon the premises of a corporation under similar circumstances. The court recognized that appellant had made herself obnoxious when she came on the premises and was guilty of meddlesome acts, but concluded that her visiting the premises was required in the performance of her duties as a director. We do not reach the same result based on the circumstances of this case. We note an important distinction in the fact that Mrs. Johnston remained the president as well as a director of the corporation, whereas defendant has been removed as president and his recent occupancy of that office is the primary reason for keeping him away from the premises at this time.

We have considered whether injunctive relief was in order considering that plaintiff’s shareholders have the authority under the law to remove Donald Trapp as a director and thereby solve the problem for plaintiff. However, this is complicated by the fact that the corporation consists of three shareholders so that there must be a minimum of three directors under R.S. 12:81, and the charter of the corporation requires that directors be shareholders. Thus, amendment to the corporation charter would be required in order to make someone other than the three shareholders eligible to serve as a director. The exigencies of the situation required that some action be taken immediately and, surely, before the delay which would be occasioned by a shareholders meeting not merely to elect a director in place of defendant but to amend the charter as a prerequisite to the election.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Carolyn E. DiLEO v. Henry WHITE, a/k/a Henry White, Jr., Andrew J. Roth, Liberty Mutual Insurance Company, American Fidelity Fire Insurance Company, and State Farm Mutual Automobile Insurance Company. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Henry WHITE, Liberty Mutual Insurance Company, Andrew Roth and American Fidelity Fire Insurance Company. Jimmy DEAL and Debbie Deal, his wife v. Andrew ROTH et al. Larry NELSON v. Andrew J. ROTH, Henry White, American Fidelity Insurance Company, Liberty Mutual Insurance Company, Carolyn DiLeo, and State Farm Mutual Automobile Insurance Company.
    Nos. 11415 to 11418.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.

      Borrello & Huber, Bruce J. Borrello, Me-tairie, for Henry White, Jr., and Liberty Mutual Insurance Company, appellees.
    Ignatz G. Kiefer, Richard M. Goldman, New Orleans, for Andrew Roth and American Fidelity Fire Insurance Company, appellants.
    Wiedemann & Fransen, C. Scott Carter, New Orleans, for Jimmy Deal and Debbie Deal, appellees.
    Jacqueline Mae Goldberg, New Orleans, for Larry Nelson, appellant.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, Diane K. Zink, New Orleans, for Interstate Fire & Casualty Company, appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

By appeals in these consolidated cases, defendants Andrew Roth and American Fidelity Insurance Company (American) challenge a trial court judgment, based on a jury verdict, in favor of the plaintiffs in the following amounts: Carolyn E. DiLeo, $6,583.33; Larry Nelson, $1,291.66; Debbie Deal, $2,000.00; and Jimmy Deal, $2,541.66, together with legal interest from the date of judicial demand until paid, and all costs.

Plaintiff Larry Nelson has also appealed the judgment, questioning quantum.

Of the above sums, American was ordered, as primary insurer, to pay $12,405.95 and Interstate Fire and Casualty Company, an umbrella insurer, was to pay $10.70.

Judgment was also decreed in favor of plaintiff State Farm Mutual Automobile Insurance Company (State Farm) and against defendants Roth and American, in solido, in the sum of $3,060.42 together with legal interest from the date of judicial demand until paid. (This includes property damages and medical expenses paid to Di-Leo in the amount of $2,750.42 and medical expenses alone paid to Jimmy and Debbie Deal in the sum of $310.00.) To the extent that these sums were paid to State Farm, defendants Roth and American were allowed a credit against the judgments in favor of DiLeo and Mr. and Mrs. Deal.

There was also judgment in favor of defendants Henry J. White, Jr., and Liberty Mutual Insurance Company (Liberty), dismissing plaintiff State Farm’s suit as to those defendants. Judgment was also granted to White and Liberty and against the plaintiffs DiLeo, Jimmy Deal, Debbie Deal and Nelson dismissing their suits as to these defendants.

The trial court decision also dismissed the suits of Nelson, Jimmy Deal and Debbie Deal against DiLeo and awarded fees to the expert medical witnesses testifying at trial.

Although Nelson contends the trier of fact, in this ease a jury, abused its discretion in the quantum of damages awarded, we cannot, after careful study of the record, agree with that contention. Nelson’s physical injuries, pain and suffering were considerably less than those suffered by the other plaintiffs, and the record does not show that manifest error which would justify this court’s interference with the jury’s award to Nelson.

Appellants Roth and American do not question the trial court’s finding of negligence on the part of Roth, nor do they contest the awards of damages rendered, but aver those damages should be cast against defendant Liberty under the provisions of the omnibus clause of its policy of insurance issued to White, the named insured of the vehicle driven by Roth at the time of the accident. They further contend that Roth was driving the car with the expressed and/or implied permission of the named insured, Henry J. White, Jr., and/or his son, Terry White, thus casting Liberty primarily liable for the judgment so rendered.

The policy issued to Henry J. White, Jr., by Liberty stated in part:

“Under the Liability and Medical Expense Coverages, the following are insureds:
(a) with respect to an owned automobile,
(1) the named insured,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, * *

The verdict which the jury returned to the court recited the following finding of fact:

“ ‘WE’ the jury find a verdict in favor of the plaintiffs and against the defendants Andrew Roth and American Fire Insurance Company and Interstate Fire & Casualty Co., in solido, we find that Roth did not have the permission of Henry White, Jr. to use the auto Roth drove and therefore Roth’s own insurance company is his insurer in this accident. * * *”

We agree. Terry White testified that on the day of the accident he had switched cars with Roth, lending him the White family’s Nova because Roth, a close friend, had a date that night and the radio in his own car was not working. Young White also said that neither his mother nor his father knew about Roth’s using the car that night; that he was aware he was disobeying his parents by lending Roth the vehicle and that his parents on numerous occasions had told him and the other children in the family they could not lend out the cars without specific permission from their parents.

Both Terry White and Roth also testified that Mr. White had given Roth permission to use the Nova only on certain specific prior occasions when he had asked Roth to run errands for him.

It was also established at the trial that although the Nova was the family car primarily used by Terry White, this car was also used by the other White children and young White did not have exclusive dominion over the car.

Mrs. White also testified the family rule was that people outside the White family were not to use the cars and that her children had been informed of this rule in Roth’s presence.

Roth, himself, stated at trial that although he had Terry White’s permission to use the Nova on the evening of the accident, he was also aware it was in direct disobedience of Mr. White and that if he had asked Mr. White’s permission he was sure he would have said “no.” He also stated that on at least one occasion he had been present when Mr. White reprimanded young White about lending the car to others, and he said Mr. White had never refused permission for Roth to use the ear, but only because Roth had never asked.

In the case of Peterson v. Armstrong, 176 So.2d 453 (La.App. 3d Cir. 1965), cited by the defendants, the court addressed the specific issue involved in this appeal at page 457 and stated:

“In Coco v. State Farm Mut. Auto. Ins. Co., La.App. 3 Cir., 136 So.2d 288, this court had occasion to make an exhaustive analysis of the jurisprudence concerning the question before us. As there stated, ‘ * * * the jurisprudence of this State has been established to the effect that where the original permittee has been granted more or less general discretion and continuous control over the insured vehicle by the named insured, such general permission carries with it the implied consent of the named insured for the original permittee to allow third persons to use the insured vehicle.’ 136 So.2d 293. Citations omitted.
“The opinion further states, 136 So.2d 293: ‘In a case, however, where the original permittee has been granted the more or less general use of and continuous control over the insured vehicle by the named insured, but with the specific restriction or prohibition that he is not to permit anyone else to drive it, then we think the general permission granted to the original permittee does not carry with it the implied consent of the named insured that others may be permitted to drive the insured car.’ Nevertheless, as the opinion continued, 136 So.2d 295: ‘We can readily conceive of circumstances where the permission of the named insured for a second permittee to use the automobile may be implied, even though the named insured has specifically prohibited the initial permittee from letting someone else drive. Such permission may be implied, for instance, if the named insured has knowledge of the fact that the original permittee has permitted others to use the automobile in spite of that prohibition, and after acquiring that knowledge he makes no protest and takes no action to prevent him from continuing to do so.’ (Italics ours.) See also Thomas v. Peerless Insurance Co., La.App. 2 Cir., 121 So.2d 593; Comment, cited above, at 22 La.L.Rev. 535.”

Although in Peterson v. Armstrong, supra, the appellate court found no error in the trial court’s conclusion that the defendant’s father had not forbidden his son to let others use the family car while entrusted to the son’s general use and continuous control, this finding was supported by the evidence, as noted at page 456:

“ * * * In sworn interrogation soon after the accident, admitted in evidence at the trial, the father had in his own words described his instructions to Kent as follows: ‘ * * * so far as being able to lay down a standard set of rules for him — -I don’t see how you can do it. He knows— he knew that the best thing he could do to take care of the car was to drive it himself, but so far as to come right out and tell him that he can’t let anybody else use it — it’s almost impossible, to me it is. * * * [Circumstances might come up that somebody else might want to use it, you say “Well, I don’t see anything wrong with it, go ahead.” But he had been told the best thing to do is not to do it.’ Exhibit J-l, Tr. 90. What the father intended by his admonition to Kent not to lend the car to others was, he stated at one point in his trial testimony, ‘that he [Kent] should not loan the car, not for their pleasure’ (Tr. 540); at another, ‘except in the case where there was some emergency come up, that he should not permit anyone else to drive it but should drive it himself’ (Tr. 542).
“The father frankly admitted, however, as to the situations in which Kent was intended to have permission to let others drive the car, ‘that would have to be his [Kent’s] decision to make, I would not be there; his mother would not be there; he would have the car away from home, and that would be his decision that he would have to make.’ Tr. 543. Thus, as both Kent and his father testified, his parents’ permission for Kent to keep the car under his continuous and general control at school for a week or so at a time, contemplated that Kent could let others drive the car in exceptional situations as determined solely by his own good judgment and intelligence. Tr. 542, 553.”

As established by the uncontroverted testimony of Mr. and Mrs. White, Terry White and Roth, such was not the situation in the present case; therefore, this court finds Peterson v. Armstrong, supra, distinguishable on the facts.

We also find the cases of Thomas v. Peerless Insurance Company, 121 So.2d 593 (La.App. 2d Cir. 1960), and Garland v. Audubon Insurance Company, 119 So.2d 530 (La.App. 1st Cir. 1960), equally distinguishable because in both cases the original permittee of the insured had a broad, general authority to exercise discretion as to the use of the automobiles, and, therefore, the actual use of the automobiles on the occasions of the accidents was within the initial permission of the named insured. Counsel for Roth and American also complain that the trial judge failed to use certain of appellants’ suggested jury charges. We do not agree. The court’s charges, in our opinion, were proper and covered all points of concern necessary to the jury’s determination of whether or not implied consent for Roth to operate the Nova could be imputed to Henry J. White, Jr.

For the reasons above, the district court judgment is affirmed.

AFFIRMED.


text:
    Alvin LASSEN v. Carlos OTALVARO and Sonia Otalvaro.
    No. 11450.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Rehearing Denied Jan. 19, 1981.

      Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Juan A. Velasco, New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Alvin Lassen, appeals a trial court judgment in his favor and against the defendants, Carlos Otalvaro and Sonia Otal-varo, in solido, in the sum of $1,150 together with legal interest thereon from date of judicial demand until paid and for all costs of the proceedings. The reconventional demand of the defendants was also dismissed at their costs.

Lassen is the owner of a New Orleans residence located at 6220 and 6222 South Claiborne Avenue, which he leased to the defendants for a 24-month period, beginning on July 1,1977 and ending on June 20, 1979. Monthly rental was $575, payable in advance on the first day of each month.

On June 2, 1978, the plaintiff-lessor filed suit for breach of contract, claiming the defendants-lessees had failed to pay the rent for the months of May and June. On June 12, 1978, the plaintiff filed a rule for possession, asserting that he had caused a 5-day notice to vacate to be served on the defendants for nonpayment of rent, and that they had failed to comply.

Judgment on the rule was rendered on June 23, 1978, and the defendants were ordered to vacate the subject premises by 12 noon, Thursday, June 29, 1978.

On July 8, 1978, plaintiff filed a supplemental and amending petition alleging that defendants were liable for the rent at the rate of $575 per month for the months of March, April and May, and June 1 through June 3. In addition, the plaintiff claimed liquidated damages in accordance with the lease contract for failure to deliver possession when required to do so on June 3,1978, and for damages caused to the property during defendants’ occupancy.

At the trial on the merits of the main demand it was established the complaints made by lessees included that the house was too hot due to a skylight in the living room-dining room area; the exterior paint was peeling; and there were roaches on the property. In response, Mrs. Lassen testified she had the skylight covered, had the exterior paint repaired, and referred Mrs. Otalvaro to a pest control service regarding the roaches. She added she had a fence installed around the property at Mrs. Otal-varo’s request and paid a gardener to cut the grass during the warm weather months. Additionally, Mrs. Lassen explained she had a repairman check some of the heaters in the house; however, he discovered the Otal-varos had not had the gas connected.

Mrs. Otalvaro testified she, her husband and six children slept downstairs in the house in the winter because the upstairs was too hot; the downstairs of the house in winter was too cold because of drafts around the doors; one bathroom was without ventilation (a problem that was eventually remedied by Mrs. Lassen); there were holes in the kitchen; the second paint job started to peel; inadequate wiring in the house precluded the use of portable heaters, and the house shook due to the passage of vehicles on South Claiborne Avenue.

One of the defendants’ exhibits was a letter dated May 1,1978, that Mrs. Otalvaro testified she mailed to Mrs. Lassen reiterating what she considered the problems in the house and offering to terminate the lease providing Mrs. Lassen would compensate the defendants for added expenses, inconvenience and damages. Mrs. Lassen, however, testified she never received the letter, and it was established the address on the letter was incorrect and differed from her address as listed on the lease.

Although the defendants were able to show the trial court they had paid rent for the months of March and April of 1978, they were unable to contravene the plaintiff’s records and establish that any payment was made for the months of January, February, May and June of 1978.

The defendants testified they actually moved from the premises, in response to the district court’s order, on June 30, 1978.

The lease which was executed between the parties states in part:

“Lessor warrants that the leased premises are in good condition except as otherwise stipulated herein. Lessee accepts them in such condition and agrees to keep them in such condition during the term of the lease at his expense and to return them to Lessor in the same condition at the termination of the lease, normal decay, wear and tear excepted.
“Lessor agrees to deliver the premises broom clean and free from trash at the beginning of the lease and Lessee agrees to return same in like condition at the termination of the lease.
“No repairs shall be due Lessee by Lessor except to the roof and such as may be rendered necessary by fire or other casualty, not occasioned by Lessee’s fault or negligence. Lessee agrees to report in writing to Lessor any damage to the leased premises within twenty-four hours after its happening, and upon his failure to do so, Lessee shall be bound to repair any consequent or resulting damage.”

In giving reasons for his decision the district court judge stated:

“The Court was impressed with the testimony of the defendants, Carlos Otalva-ro and Sonia Otalvaro, with reference to the defective condition of the house. The plaintiff had notice of the detailed complaints.
“However, non-payment of rent is not the remedy the defendants should have sought. Rather, after the plaintiff had been given notice of defects and a reasonable time for repairs had passed, the defendants should have had the repairs made and charged the cost of such to the plaintiff.
“The house did have some utility for the defendants. Four months of rent were not paid, namely, January, February, May and June.
“The Court is of the opinion that the defendants owe the plaintiff a reasonable sum for the occupancy and use of the premises. The Court is of the further opinion that one-half of the amount due, i.e., $1150.00, is reasonable.”

We cannot agree. Concerning the obligations and rights of lessees and lessors, the applicable codal articles state:

“The lessor is bound from the very nature of the contract, and without any clause to that effect:
1. To deliver the thing leased to the lessee.
2. To maintain the thing in a condition such as to serve for the use for which it is hired.
3. To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.” LSA-C.C. art. 2692.
“The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.” LSA-C.C. art. 2693.
“If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.” LSA-C.C. art. 2694.

This court, in the factually similar case of Bruno v. Louisiana School Supply Company, Inc., 274 So.2d 710 (La.App. 4th Cir. 1973), stated at pages 711-712:

“LSA-C.C. art. 2712 clearly provides that ‘the lessee may be expelled from the property if he fails to pay the rent when it becomes due.’ Our Supreme Court has decreed that the failure of a lessor to accomplish necessary repairs is not justification for the lessee’s refusal to pay rents when due. Mullen v. Kerlec, 115 La. 783, 40 So. 46 (1905).
“Rather, there are two remedies available to the aggrieved lessee. Under LSA-C.C. art. 2694 if, after being put on notice, the lessor refuses or neglects to make repairs, ‘ * * * the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable. Alternatively, the lessee may sue for cancellation of lease on the authority of LSA-C.C. art. 2729. The jurisprudence has consistently recognized these courses of action which have recently been reaffirmed in Reed v. Classified Parking System, 232 So.2d 103 (La.App. 2d Cir. 1970).
“In the intent case, LASSCO withheld rents for some seven months without formally putting Bruno on notice or attempting to procure the alleged necessary repairs itself. It therefore follows that the failure of the lessee to pay the rental or to avail itself of the rights granted by LSA-C.C. arts. 2694 or 2729 constituted a breach of the lease. Under the codal provisions and jurisprudence cited above, the judgments of eviction and for delinquent rental were clearly correct.”

In the present case, as in Bruno, supra, the defendants-lessees claim a remedy that the law does not afford them, since they neither sued for dissolution of the lease nor caused any alleged necessary repairs to be made, deducting the price from the rent due. Accordingly, this court must award the plaintiff the total amount of delinquent rental that was due.

The subject lease also states:

“In case an Attorney be employed to protect any right of Lessor or Lessee arising under this lease, the party whose actions or inactions necessitate such employment shall pay additionally a reasonable attorney’s fee.”

Plaintiff should therefore be awarded reasonable attorney’s fees.

Regarding liquidated damages claimed by the plaintiff for defendants’ failure to deliver possession of the premises at the termination of the lease, we note that document’s following provision:

“At the expiration of this lease or at its termination for other causes, Lessee is to immediately surrender possession by actual delivery of all keys to Lessor. Should Lessee fail to deliver such possession, he consents to pay as liquidated damages five times the rent per day for each day of his failure to do so, with attorney’s fees and all costs.”

Since the defendants were ordered by the district court to vacate the premises by noon on June 29, 1978, and the Otalva-ros, by their own admission, did not abandon the house until the next day, June 30, 1978, this court will award liquidated damages of five times the rent for the additional day of occupancy. As reasonable attorney’s fees, we will allow one-third of $2,369, the amount collected.

For the reasons stated above, the trial court decision is amended in favor of the plaintiff, Alvin Lassen, and it is hereby ordered that the defendants, Carlos Otalva-ro and Sonia Otalvaro, are recast in judgment in the sum of $2,300 for four months of rent not paid, together with legal interest thereon from the date of judicial demand, $789.66 in attorney’s fees; and $69 in liquidated damages due under the terms of the lease for the June 30,1978 occupancy of the subject premises. In all other respects the judgment of the trial court is affirmed.

AMENDED IN PART; AFFIRMED IN PART; AND RECAST.