author: WATKINS, Judge.

text:
    C. B. DUTTON v. William J. GUSTE, Jr.
    No. 13337.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Stephen B. Lemann, New Orleans, Frank M. Coats, Jr., Baton Rouge, for plaintiff-appellant, C. B. Dutton.
    Robert E. Redmann, Asst. Atty. Gen., New Orleans, for defendant-appellee, William J. Guste, Jr.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is a mandamus proceeding to obtain a writ directing William J. Guste, Jr., Attorney General of the State of Louisiana, to deliver to plaintiff, C. B. Dutton, a resident of the State of Indiana, all documents concerning a purported settlement of claims between various architects and engineers and the State of Louisiana or its officers, subdivisions or employees with regard to liability for defects in the design or construction of the Louisiana Superdome. The trial court rendered judgment for defendant. We affirm.

The trial court found that the documents in question, which it reviewed in camera, embodied an offer of settlement, and refused to order the delivery of the documents for plaintiff’s view and inspection. We have viewed the documents in camera, and find both elements of settlement and offer of settlement to be contained therein. We have thoroughly reviewed the documents in question, and to avoid revealing any possible confidential information, in view of the result we are reaching, limit ourselves to the characterization contained in the preceding sentence. We will assume that the documents contain a settlement or compromise for purposes of discussion, to give plaintiff-appellant the most favorable position.

Plaintiff-appellant seeks to view the documents as a “person” under the Public Records Statute (LSA-R.S. 44:1 et seq.) and contends that the documents in question are “public records” under definition A(2) under LSA-R.S. 44:1. We find that the documents are not “public records” for purposes of Chapter 1 of Title 44, for the reason that they fall within the exception contained in that definition, thus stated: “. . . except as otherwise . . . specifically provided by law.”

First, we note that the documents in question fall also within the exception to the general right to review public documents set forth in Art. 12, Sec. 3 of the Constitution of 1974:

“No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”

In Cuccia v. Taylor, 304 So.2d 86 (La.App. 1st Cir. 1974), a mandamus proceeding to force the Director of the Louisiana Department of Public Highways to produce for inspection and copying certain appraisal reports, it was held LSA-R.S. 44:1 et seq. must be read in pari materia with LSA-C.C.P. art. 1452, one of the discovery articles contained in the Code of Civil Procedure. Similarly, we hold that LSA-R.S. 44:1 et seq. must be read in pari materia with another discovery article, LSA-C.C.P. art. 1422, which (as amended by Louisiana Act No. 572 of 1976, Sec. 1), reads as follows:

“Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

We, thus, see that matters that are privileged are not subject to discovery. A compromise settlement is generally regarded as privileged, and is inadmissible in evidence. Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966). The purpose of this privilege is to protect the compromiser from having the compromise used adversely to him in other proceedings. (We note that although there is no direct evidence of an ancillary arbitration proceeding in the record, it appears to be conceded by plaintiff’s counsel (see Original Brief of Plaintiff-Appellant on appeal, p. 11) that the State is a participant in an arbitration proceeding arising from the same construction project.) We find that the following language of Judge Tate in Broussard, supra, is pertinent:

“The basic reason for this privilege of preventing admissibility is the policy danger of discouraging compromises, favored by laws, if they can be used adversely to the compromiser in other proceedings. McCormick, Section 251 at p. 541; Annotation, Negligence-Payment of Similar Claims, 20 A.L.R.2d 304; Brown v. Pacific Electric Ry. Co., 79 Cal.App.2d 613, 180 P.2d 424 (1947) (collecting decisions).” (188 So.2d 111, 121)

It is thus apparent that the compromisers in the present transaction have a recognized right to be protected. We must assume that if there were no possibility of harm to the compromisers the Attorney General would not oppose the present writ of mandamus.

Compromises are not privileged for all purposes or in all cases. Certain exceptions exist to the general privilege. A compromise is admissible in evidence to prove its genuineness, and to prove that it was not obtained through fraud or error of fact. Allen v. Delta Match Corp., 250 So.2d 563 (La.App. 1st Cir. 1971). Also, and more often to arise, a compromise agreement is admissible in evidence to impeach the credibility of a witness. McCormick on Evidence, Sec. 251; Belanger v. Employers Mutual Liability Ins. Co., 159 So.2d 500 (La.App. 1st Cir. 1964). Plaintiff-appellant does not indicate by brief or otherwise the use he intends to make of the documents in question in the present case. We must assume, until he states to the contrary, that the documents are sought for purposes which fall under the general privilege, and are, thus, not subject to discovery.

As the discovery articles of the Code of Civil Procedure are to be read in pari materia with the provisions of the Public Records Statute (LSA-R.S. 44:1 et seq.) under the reasoning set forth in Cuccia, supra, and as the compromise agreement in question is privileged and not subject to discovery, it is not subject to production and inspection under the Public Records Statute.

Having so held, it is unnecessary for us to determine whether or not the documents in question are also not subject to production and inspection for reasons of public policy, as was found by the trial court.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Annie Laura VOISIN v. BERRY BROS., INC. and Texaco, Inc.
    No. 13340.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Keith M. Whipple, and Jules D. Boquet, Houma, for plaintiff and appellant.
    John D. Fitzmorris, New Orleans, for defendants and appellants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action to recover damages for the destruction of oysters on an oyster lease owned by plaintiff, Annie Laura Voisin. These damages are alleged to result from the dredging by Berry Bros., Inc. and Texaco, Inc. of an oil field canal across marsh land and water bottoms located on Texaco, Inc.’s mineral lease. The trial court awarded damages in the amount of $149,500 and costs. We amend and affirm.

By instrument dated February 1, 1946, the State of Louisiana granted to Union Oil Company of California a mineral lease on approximately 4,920 acres of land and water bottoms in Terrebonne Parish, which all parties agree included the oyster lease bottoms in question. Union Oil assigned an undivided one-half interest in this lease to Texaco, Inc. on September 28,1950. Henry Cenac owned four separate oyster leases on some of these coastal lands and water bottoms. He sold these leases to Mrs. Voisin in 1976. Mrs. Voisin acquired additional oyster reefs, and the entire acreage in the four leases sold by Cenac and in the reefs acquired by Mrs. Voisin was included in a new oyster lease from the State of Louisiana to Mrs. Voisin under instrument dated December 16, 1976.

The oyster reefs included in the oyster lease produced quite well until Texaco dredged, through Berry Bros., a canal across land and water bottoms to provide access to two abandoned wells that it owned on water bottoms for the purpose of removing its equipment. The Berry Bros.’ dredge was of a bucket type and deposited spoil the entire length of its dredging operation. Plaintiff contends that the spoil and silt generated from the spoil entirely destroyed the oysters and oyster reefs in her oyster lease.

Four principal issues are presented on appeal: (1) whether or not Texaco must be shown to have been negligent, (2) if so, whether or not Texaco was negligent, (3) causation and (4) quantum.

NECESSITY OF PROVING NEGLIGENCE

Texaco contends that it must be shown to have been negligent in order for the oyster lessee to recover damages, as it dredged the canal as mineral lessee under the state mineral lease. Mrs. Voisin contends, as was held by the trial court, that Texaco was a mere trespasser, and it is strictly liable without proof of negligence, because Texaco did not prove that its state mineral lease was still in effect on the dates of the dredging operations. Mrs. Voisin further contends that the burden of proof is on the mineral lessee, Texaco, to show both the fact that the lease was granted and the fact that the lease has remained in effect. Our reading of the mineral lease renders it unnecessary to decide upon these issues.

The fourth paragraph of the state mineral lease, captioned State Lease No. 725, reads as follows:

“NOW, THEREFORE, BE IT KNOWN AND REMEMBERED, that the said STATE MINERAL BOARD, acting under the authority of the said Act No. 93 of the Regular Session of 1936, as amended, and in accordance with the terms thereof, and acting in behalf of the State of Louisiana as ‘lessor’, does hereby let and lease unto the said lessee, (its) heirs and assigns, the hereinafter described property, for the purpose of exploiting the same by geophysical means in locating mineral bearing structure thereon, and for producing therefrom sulphur, potash, oil, gas and/or other liquid or gaseous hydro — carbon minerals, in and under said lands, and also the exclusive right of drilling and operating thereon for sul-phur, potash, oil, gas and/or other liquid or gaseous hydro-carbon minerals, together with a right of way for, and the right to lay pipelines to convey water, oil, gas, steam and sulphur, and the right to have sufficient water from the premises to drill and operate any wells which the said lessee may bore thereon, and also such other privileges as are reasonably requisite for conducting such operations, and the right to remove from said premises at any time any and all property that may have been placed thereon by lessee, provided that the said lessee shall have fulfilled its obligations to lessor hereunder.”

The “NOW, THEREFORE” paragraph of the state mineral lease set forth above grants to the lessee “the right to remove from said premises at any time any and all property that may have been placed thereon by lessee . . . ” It is clear that the canal in the present case was dredged to remove the equipment from two abandoned Texaco wells, and, therefore, the dredging of the canal took place under the terms of the state mineral lease.

It is interesting to note, however, that the mineral lease in Jurisich v. Louisiana Southern Oil & Gas Co., infra, specifically provided for the dredging of canals, where the mineral lease here does not contain any specific language authorizing the dredging of canals. The quoted provision of the lease does, however, grant to lessee “such other privileges as are reasonably requisite for conducting such operations . . . ” which grant we feel includes the authority to dredge a canal if necessary for access to lessee’s well site.

Under the holdings of Doucet v. Texas Co., 205 La. 312, 17 So.2d 340 (1944), Lauzon v. J. C. Trahan Drilling Contractor, Inc., 247 So.2d 236 (La.App. 4th Cir. 1971), and Jurisich v. Louisiana Southern Oil & Gas Co., 284 So.2d 173 (La.App. 4th Cir. 1973), the holder of a mineral lease granted by the state is liable to the owner of an oyster lease also granted by the state only if the mineral lessee is negligent, or conducts its operations without reasonable prudence and proper precaution. The mineral lessee must conduct its operations so as not to unduly cause damage to the oyster lessee. This brings us to the issue of negligence.

NEGLIGENCE

The trial court found that Texaco was negligent in the conduct of its dredging operations. We have read carefully the entire record, and the reasons for judgment, and, finding no manifest error in the holding on the issue of negligence of the learned trial judge, adopt his holding as our own, and quote from his written reasons for judgment:

“Even assuming that Texaco had indeed offered evidence on and proved production and thus the existence of the mineral lease and rights flowing therefrom, this Court would still find defendants liable for failing to carry out its dredging operations in a reasonable, cautious and prudent manner. The burden is placed upon the mineral lessee to use reasonable prudence in order to minimize damages, and it cannot produce its operation in disregard of the rights of the oyster lessee. Lauzon v. J.C. Trahan Drilling Contractor, supra at page 240. The Court in Lauzon recognized that mineral lessees and oyster bed lessees each have valuable rights and such coexisting rights subject both to the rule that every person must so exercise his rights as not to unduly or negligently injure others; the issue being recognized as whether or not the mineral lessee had performed its operations in a manner in which a prudent person would have performed it.

“In its Post-Trial Memorandum, Texaco reiterates these rules, and further admits that it ‘would appear that in order to act in a reasonable and prudent manner, it would be imperative for a mineral lessee contemplating dredging to inspect the lease and ascertain where oysters were located so that he could take the steps to avoid damaging them. If it were not possible to completely avoid them, then it would seem that it would be incumbent upon the mineral operator to allow the oyster fisherman sufficient time to take the steps necessary to preserve his crop. Of course, the dredging activities themselves must necessarily be conducted in a safe and reasonable manner with regard to the oysters. Summing up, it would seem that the standard of reasonableness would include sufficient notice and sufficient time in which the oysterman would take the steps necessary to preserve his harvests.’ It is obvious from the record that Texaco’s actions did not meet up to these proclaimed rules.

“First, the record clearly reflects that Texaco was interested more in negotiating a monetary settlement for damages with the Voisins prior to dredging than with charting a dredge route to minimize damages to the oysters. The so-called ‘inspections’ by Pilkington, the local Texaco representative apparently in charge of these dredging operations, were no more than attempts by him to negotiate a figure and obtain a release from liability for any actions by defendants prior to dredging. (Transcript pages 15 and 21).

“Texaco contacted the Voisins only through Pilkington. There is some evidence that Pilkington first met with Voisin on the lease in March, 1977. Pilkington attempted to negotiate a settlement with Voisin, who refused. At that time, the record shows Pilkington did not know the exact route of the future dredging operations nor did he know the extent of the dredging that was to be done. (Tr. p. 6) In fact, as late as July 20, 1977, the date of the first dredging, Texaco and Pilkington did not even know which wells would definitely be pulled and were even unsure as to the ownership of one of the wells (Tr. p. 21 regarding wells 9-1 or 9-5) (Compare to Transcript pages 14 and 20, where talk of wells 9-1 and 9-8 and transcript page 22 regarding 9-1, 9-5 and 9-8). Apparently from the record, the staking out of the dredging route of the first dredging operation by a survey crew was not accomplished until the very day dredging operations took place, July 20, 1977.

“Testimony by Pilkington was to the effect that Voisin pointed out the oyster locations to him in March and on July 20. Pilkington first testified he found 'a few wild oysters right around the bank’ and further testified that Texaco’s survey crew ‘found no oysters of any consequence in the area’, though Pilkington later admitted on cross-examination the existence of some good oyster reef in the lease (Tr. page 205). Texaco offered little but vague evidence through MacHenry, Texaco’s chief of the survey crew, as to the dates and manner of the staking out of the dredging routes. Texaco, however, argues that its actions were reasonable.

“This Court completely disagrees. A reasonably prudent person would have made certain as to the locations of all of the oyster reefs in the area, selecting the least damaging route. It is evident that from the beginning Texaco was not concerned with minimizing oyster damage but only with minimizing its own financial loss. In fact, the record is clear that Texaco all along intended to come to a straight path across the lease, and that neither Pilkington nor MacHenry checked all areas of the lease for oysters. Furthermore, on July 29, Mac-Henry, who was in charge of staking out the dredge route and thus should have been concerned with routing the dredge to areas with the least oysters, did not even accompany Mr. Voisin to check the oyster locations. (Transcript p. 233 and 209). It was Pilkington, the claims representative, who accompanied Voisin. And Pilkington admits that the dredge was moving in toward the lease at that time, Voisin was very upset, and that ‘we (at least meaning Pilk-ington, but possibly others; see Tr. p. 232 for those who were present) tried repeatedly to get him to give us some type of price, some kind of figure, that would cover the damages, and he would not do so.’ (Tr. p. 21). On March 23, in the presence of ‘approximately the same survey crew,’ it also was Pilkington and Voisin who were together to locate oysters. The Court believes the surveyors would have been the reasonable persons to accompany Voisin. Thus, it is evident to this Court that Texaco made no reasonable attempt to minimize damages to this oyster lease, but only to minimize their financial loss.

“It is also important to point out that this Court does not believe Texaco’s evidence that there were no oysters of any consequence in the area to be dredged. The reasons for this disbelief will be elaborated later herein.

“The Court further finds that Texaco did not give the Voisins sufficient and adequate notice regarding the proposed dredging. The exact route to be dredged and exact wells to be pulled was never made clear to Mr. Voisin prior to the dredging. It was extremely unreasonable and careless to notify Voisin to meet at the lease on July 20 to discuss the potential dredging and to then confront him at that time with the impending dredge operations. The Court disapproves wholeheartedly with this maneuver by Texaco. Furthermore, Texaco’s letter on August 4, 1977, to Voisin to remove his oysters was also too late; the first dredging had already occurred, doing its damage, and the second dredging occurred soon after the August letter. Thus, Texaco was grossly negligent in not, sufficiently in advance, arranging the inspection and staking out of the route with Voisin, who cooperated by meeting Texaco on the lease on both occasions when asked to do so. In fact, Pilkington himself admitted that many dredging operations by Texaco in the past were staked out well in advance of the dredging (Tr. p. 15). Texaco’s failure to do so in this case was negligence.

“Finally, this Court further finds the defendants negligent in the manner in which the dredging operations were carried out. It is obvious that spoils (the dredged mud) were not carefully deposited away from the oyster reefs, but in fact were dumped onto the reefs in great quantities and allowed to spread and cover a vast amount of the oyster lease.

“Texaco attempted to show that Voisin wanted the spoil placed on the south side of the lease, in the Pass. However, Pilkington admitted that Voisin requested to put as little spoil as possible in the water ‘which we (meaning defendants) would have done anyway.’ (Tr. p. 204). Antoine Hebert, dredge captain for Berry Brothers, Inc. who did the dredging on July 20, further testified that Voisin advised him to rehandle the spoil that was put in the water to keep the water open and oyster reefs clear, meaning to redig or rehandle the spoil and put in (sic) on the bank. (Tr. p. 214-219). Defendants claim to have done this. This Court does not believe this to be the case; it is obvious that if the defendants had performed the dredging in this manner, the oyster reefs could not have been covered with thick layers of spoil. This Court believes the testimony presented by plaintiff that indeed much of the oyster reefs in the lease were overburdened with spoil immediately after the dredging operations, that immediately prior to this dredging, the lease contained no such spoil, and therefore the only reasonably explanation is that the two dredging operations by defendants proximately caused this spoilage. It is significant that plaintiff’s evidence regarding this spoilage was bolstered by testimony of several independent witnesses who have no stake in the outcome of this litigation. It is also worth mentioning that Texaco offered no testimony whatsoever regarding the manner in which the August dredging was conducted, other than vague references thereto, though this point is not a controlling factor in this Court’s determination of negligence, but just one of many which detracts from the credibility of the defendants’ case, testimony and evidence. In short, it has been proved to the satisfaction of this Court that defendants caused the spoilage of the oyster lease with their negligent dredging.

“In summary, . . . even assuming the legal right of defendants under a mineral lease, defendants were in reckless disregard of plaintiff’s property rights, negligently failing to check for and locate oyster reefs upon the lease, negligently waiting until literally the last minute to stake out dredging routes though the oyster lessee offered his cooperation, negligently failing to give the oyster lessee sufficient and adequate notice regarding the dredging, and negligently conducting the dredging operations. These actions by defendants have carelessly and needlessly destroyed a valuable resource of plaintiff, and thus liability for all damages ensues.”

In Jurisich v. Louisiana Southern Oil & Gas Co., supra, the court held that the defendant mineral lessee was negligent in failing to notify plaintiffs before the dredging commenced of the route selected. The purpose of the dredging in Jurisieh was to provide access for a submersible drilling rig to the drilling site. The purpose of the dredging in the instant case was to enable Texaco, the mineral lessee, to remove equipment from two abandoned well sites. It would seem that the consequences of delay to a mineral lessee in the commencement of drilling would impose a substantially more sever economic hardship than the delay in retrieving equipment from abandoned wells. If, under the facts of Jurisieh, the failure to notify the plaintiff oyster lessee of the route selected before dredging commenced was held to be negligence, certainly in this case the failure of Texaco to notify plaintiff of the dredging route selected before the commencement of dredging operations was negligence on the part of Texaco. The obligation of the mineral lessee to conduct its operations in a prudent and cautious manner under the circumstances of this case at the very least required the mineral lessee to carefully locate all of the oyster producing reefs, to select a dredging route as remote as practicable from the reefs, and then to give notice to the oyster lessee sufficiently in advance of the commencement of dredging operations as would allow the oyster lessee adequate opportunity to protect his reefs or minimize his losses.

CAUSATION

The trial court summed up the testimony quite well on the question of whether or not the spoil and silt from the dredging operations caused the destruction of the oysters on Mrs. Voisin’s lease when it remarked simply that before the dredging operations the oysters were free from mud, and after the dredging the oysters were covered by mud, and, therefore, the dredging caused the destruction of the oysters.

There is little direct factual evidence to the contrary. Texaco’s defense on the issue of causation is limited almost entirely to expert testimony of Dr. John G. Mackin, a retired professor at Texas A&M, who stated that there was little silt and that the current over the oyster beds in question was too swift (1 knot) to permit silt to be deposited. However, this testimony is refuted, as silt was found over the oysters by plaintiff’s witnesses, and there is no reasonable explanation of its presence other than its having been deposited by the dredging operation. Furthermore, the reliability of Dr. Mackin’s testimony can to some extent be questioned by his admission under cross-examination that since his retirement he has drawn almost all of his earned income from oil companies, that he has worked for oil companies in almost 200 silting cases, and that he has found silting in only three or four cases.

We, therefore, agree with the trial court that spoil and silt from the dredging of the canal by Texaco caused the destruction of the oysters.

QUANTUM

On the question of quantum of damages, the trial court relied upon the testimony of two expert witnesses from the Louisiana Wildlife and Fisheries Commission, Claude Boudreaux and Philip Bowman, who both testified that most of the oysters had been destroyed by silt, and eight fishermen, who testified that the lease had been productive before the dredging began, and many of whom testified further that the lease became unproductive as a result of silt after the dredging. The trial court refused to believe the testimony of Charles Pilkington and Dr. Mackin, both of whom testified that there was little or no mud or silt in the oysters after the dredging. We do not find error in this evaluation of the credibility of witnesses.

As was stated in Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir. 1978):

“It is well settled that factual findings of the trier of fact are entitled to great weight on appeal and, when there is a conflict of testimony, reasonable inferences of credibility and reasonable inferences of fact made and drawn by the trier of fact are not to be disturbed on appeal. Canter v. Koehring Company, 238 So.2d 716 (La. 1973).” (366 So.2d 1025, 1027)

The trial court found that at lest 35,000 sacks of oysters had been produced during the 14'/2 month period between Voisin’s acquisition of the lease and the dredging operations. It found, therefore, that 29,000 sacks would have been produced in a 12 month period. It further found that after the initial year of harvesting oyster production would be reduced by approximately 20%, and thus arrived at a total loss of 23,000 sacks for 1977. The trial court then computed the lost income for a 12 month period at $3.25 per sack times 23,000 sacks or $74,750.00, after the 20% reduction.

The trial court held that there was sufficient evidence to prove that this oyster lease “could productively yield oysters at its 1977 rate for at least five years, if not longer, had it not been for the negligent dredging.” However, the said trial court felt that under the holding in Lauzon v. J.C. Trahan Drilling Contractor, Inc., supra, it was limited in awarding damages for future losses to one year.

Accordingly, the trial court awarded damages to plaintiff in the amount of $74,-750.00 for the initial loss of harvestable oysters in 1977, and in the same amount of $74,750.00 for the following year. Plaintiff was, therefore, awarded total damages of $149,500.00, together with legal interest and costs.

The trial court thus found that an award of damages for any more than an additional year would be deemed speculative (as a matter of law, presumably) under the holding in Lauzon v. J.C. Trahan Drilling contractor, Inc., supra. The holding in Lauzon that an estimate for damages for any more than one additional year would be speculative was based on the facts of that particular case, and was not an enunciation of a rule of law for all oyster damage cases. However, we see in the record presented in this case that Wilson Voisin, husband of the oyster lessee and an experienced oyster lease operator, states that the oyster lease bottoms could be put back in shape in 24 months or SV2 years and made productive of oysters. We, therefore, find no reversible error on the part of the trial court in limiting recovery of damages to one additional year.

In view of the usual difficulty involved in determining the amount of damages in these cases, we find that the trial court achieved a relatively high degree of accuracy in calculating the damages sustained by plaintiff and find no error in his award for damages.

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal to be borne equally by Berry Bros., Inc. and Texaco, Inc.

AFFIRMED.

      . The precise date of these leases does not appear in the transcript of testimony.


author: LEAR, Judge.

text:
    Charles E. ARNOLD v. Winans D. LLOYD, Jr., DBA Cotton Lloyd Builder, Inc.
    No. 13428.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    William D. Grimley, Baton Rouge, counsel for plaintiff-appellee Charles E. Arnold.
    Samuel R. Cicero, Baton Rouge, counsel for defendant-appellant WDL Investments, Inc.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Plaintiff, Charles E. Arnold (Arnold) originally filed suit against Winans D. Lloyd, Jr. d/b/a Cotton Lloyd Builders, Chet Homes, Inc. and Chester R. Rushing, alleging certain structural defects in a house plaintiff bought. This suit was consolidated with a suit filed by Chet Homes, Inc. against Arnold.

Thereafter, Arnold filed his petition naming WDL Investment Company, Inc. as an additional defendant.

On the date of trial Arnold moved to dismiss his suit as to Winans D. Lloyd d/b/a Cotton Lloyd Builders, Inc. After trial the court dismissed Chet Homes, Inc. and Chester R. Rushing as defendants and awarded judgment for plaintiff, Arnold, in the sum of $1,345.00 against WDL Investment Company, Inc., plus attorney fees in the amount of $350.00. Defendant, WDL Investment Company, Inc. (WDL) appeals.

Defendant contends that plaintiff’s proof was inadequate; that the court erred in denying admissibility of a document on Cotton Lloyd Builders’ stationery signed by defendant and Chester R. Rushing (which document was filed as a proffer) and further erred by awarding attorney fees.

The defendant’s contention concerning adequacy of proof appears to be aimed at the testimony of Mr. Schexneyder who gave plaintiff a price for correcting the defects. Schexneyder, an experienced carpenter, was a small contractor who would subcontract any work calling for a particular craft such as plumbing and electrical work. Defendant urges that such estimates call for expert testimony. We disagree.

In Neck v. Coleman Oldsmobile, Inc., 356 So.2d 532 (La.App. 1st Cir., 1977) we held that there is no rule of law which requires a plaintiff in a redhibition suit to prove his claim by expert testimony. The trial court was satisfied with the proof offered by plaintiff and we can find no evidence of manifest error or abuse of discretion by the court.

The agreement offered by defendant and ruled inadmissible by the court was in fact a statement by plaintiffs, Mr. and Mrs. Arnold, to Mr. Rushing concerning closing of the loan, acceptance of the house as constructed, plus several items to be done on the house. Taking this statement as a whole, it cannot be said that plaintiffs were waiving the implied warranty set forth in L.S.A. C.C. art. 2520:

“Art. 2520. Redhibition, definition
“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The court apparently felt that since Mr. Lloyd, for whom Rushing was acting, was not a party to the suit nor the sale contract, that the contents were irrelevant. We agree. Defendant also contends that the trial judge made an error in computing the amount of the judgment. The estimate for repairs was $2,195.00. The Court disallowed two items totaling $800.00 and reduced a third by $50.00. The judgment in the sum of $1,345.00 is correct.

Lastly defendant urges that the court should not have awarded attorney fees since defendant was not in bad faith inasmuch as defendant relied on the agreement plaintiffs signed (Proffer D-l) on April 29, 1977.

This is not the issue under L.S.A. C.C. art. 2545, which reads as follows:

“Art. 2545. Liability of seller for concealment of vice
“Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Most of the complaints listed in plaintiff’s petition are minimal and would normally have been corrected in a routine manner. The major defect is listed in paragraph (5), subparagraph (10) concerning roof leakage around the fireplace which in turn damaged the ceiling. This damage occurred in September, 1977, approximately five months after the sale. While the seller has a duty to repair this defect, it would not have been a defect knowledgable to the seller at the time of the sale.

As we stated in Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975), although the seller warrants the quality of the entire home so that the purchaser can recover for cost of repairs, purchaser is not entitled to recover attorney fees or damages beyond reduction of the purchase price where vendor was not in bad faith.

Several other items claimed in plaintiff’s petition such as broken window panes, lack of wallpaper, hardware for certain doors and cracked marble in a bathroom, were, or should have been, obvious to the purchaser. Therefore, there was no duty to declare these alleged vices.

For the above reasons, no attorney fees will be allowed.

For the above and foregoing reasons, the judgment of the trial court awarding a reduction in the sales price in the amount of $1,345.00 in favor of plaintiff and against defendant WDL Investment, Inc. is affirmed.

The judgment granting $350.00 in attorney fees to plaintiff is reversed and set aside, all costs of these proceedings to be paid by appellant.

AFFIRMED IN PART, REVERSED IN PART.


author: EDWARDS, Judge.

text:
    Betty O. THOMAS v. Roland WILKINSON and Allstate Insurance Company.
    No. 13439.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Joel B. Dickinson, Baton Rouge, for plaintiff-appellant, Betty O. Thomas.
    Donald R. Smith, Baton Rouge, for defendant-appellee, Ronald Wilkinson and Allstate Ins. Co.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Betty O. Thomas, plaintiff, and Jessie Wilkinson, a minor son of defendant, Roland Wilkinson, were involved in an automobile accident on January 26,1978. Plaintiff filed suit against Roland Wilkinson and Allstate Insurance Company seeking $6,861.25 for personal injuries and property damage. Wilkinson reconvened for $1,825.69 in damages. Pursuant to an unanimous jury verdict, judgment was signed rejecting plaintiff’s demands. Wilkinson’s reconvention was also rejected. Costs, including expert witness fees, were divided equally. From the trial court judgment, only Betty O. Thomas, plaintiff in the main demand, has appealed. We affirm.

The accident at issue occurred near the corner of Plank Road and Crown Avenue in Baton Rouge. Plaintiff Thomas claimed that, heading in an easterly direction, she pulled out of a Woolco parking lot, crossed the southbound lanes of Plank Road and came to a stop in the neutral ground crossover point, at which time the vehicle driven by Jessie Wilkinson rammed into her car. Wilkinson testified that plaintiff’s car never stopped moving once she pulled out of the Woolco driveway and that he tried, but was unable to avoid the accident, which, he claimed, was plaintiff’s fault.

Other witnesses testified regarding the position in which the Thomas’ vehicle might have been when struck, that plaintiff never actually stopped, and that the crossover point was too short for plaintiff’s car to fit in without being angled.

The record as a whole contains conflicting evidence both supporting and opposing plaintiff’s claim. Apparently the jury considered all the facts and found that the plaintiff had not proven her case by a preponderance of the evidence.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

See also Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir. 1978).

We find that the jury verdict in this case was supported by the evidence. There was no manifest error.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Betty 0. Thomas.

AFFIRMED.


text:
    Brigida HALL v. BOARD OF SUPERVISORS, SOUTHERN UNIVERSITY, etc., and Niagara Fire & Marine Insurance Company.
    No. 13801.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1980.
    Writ Refused Oct. 6, 1980.

      Steve LeBlanc, Baton Rouge, for appellant.
    John B. Noland, Baton Rouge, for appel-lees.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Defendants-appellees, Southern University Board of Supervisors and Niagara Fire & Marine Insurance Company, have moved this court to dismiss the appeal of plaintiff-appellant, Brígida Hall, for her alleged failure to timely perfect her right. This court issued a show cause order and both sides have filed reply briefs.

Succinctly, judgment was entered below on March 3, 1980. The delays for filing for a new trial expired on March 12, 1980. On May 2, 1980, appellant’s attorney filed a petition for appeal with order which was duly received and filed by the clerk. Notwithstanding, the trial judge did not act until May 15, 1980, when he signed the order of appeal. This, however, occurred three (3) days after the expiration of the sixty (60) days allowed by C.C.P. art. 2087.

Defendants-appellees contend that the order of appeal was not timely signed in accord with C.C.P. art. 2087 and that, therefore, the appeal should be dismissed.

Plaintiff-appellant argues that she clearly filed her “petition for appeal” well within the period prescribed; that she should not be penalized for the failure of the trial judge to timely sign the order. We agree.

Code of Civil Procedure article 2161 provides in pertinent part:

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant . .

The failure of the clerk’s office to promptly deliver appellant’s motion and order to the trial judge or of the trial judge to promptly consider and sign the same is not an irregularity, error or defect imputable to the appellant. McLaughlin v. Home Indemnity Insurance, 361 So.2d 1226 (La.App. 1st Cir. 1978); Davidge v. Magliola, 346 So.2d 177 (La.1977).

For the foregoing reasons, we find that the error or defect is not and should not be imputable to the appellant and that this appeal was timely perfected. Therefore, we recall and vacate our rule to show cause why the appeal should not be dismissed, and we further hold that this court has jurisdiction to consider this appeal.

RULE TO SHOW CASE RECALLED AND VACATED.


author: COVINGTON, Judge.

text:
    Les Gordon CLARK v. Janell Sharp Hunt CLARK.
    No. 13482.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Donald Soileau, Mamou, for plaintiff.
    Stephen R. Wilson, Baton Rouge, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

Plaintiff-appellant brought a rule against the defendant-appellee for her to show cause why alimony of $250.00 per month, awarded under LSA-C.C. art. 160, should not be terminated. The trial court gave him no relief.

He alleges various changes in circumstances and problems, some of which he retracted under oath, as a basis for termination of the alimony. Further, he contends that under Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the award was made under an unconstitutional codal article.

In Orr, the Supreme Court of the United States declared unconstitutional an Alabama statute similar to our own in that it provided for alimony to wives but not to husbands. However, Orr is to be applied prospectively, not retrospectively. Further, our legislature, by Act 72 of 1979, changed the objectionable terminology so that alimony may not be available to either spouse. Therefore, that specification of error has no merit.

As to the trial judge’s refusal to terminate the alimony, we have reviewed the record and find no clear abuse of the trier’s great discretion, in the absence of which his decision will not be disturbed; Labeuve v. Labeuve, 352 So.2d 749 (La.App. 3 Cir. 1977).

Accordingly, the judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    PARISH OF EAST BATON ROUGE v. Autry J. POURCIAU.
    No. 13493.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Walter G. Monsour, Jr., Parish Atty., Baton Rouge, for plaintiff-appellant Parish of East Baton Rouge.
    Roger M. Fritchie, Baton Rouge, for plaintiffs-appellants Albert W. Metz and Michael W. Smith.
    Kenneth R. Williams, Baker, for defendant-appellee Autry J. Pourciau.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   COVINGTON, Judge.

On December 4, 1979, the plaintiffs, Parish of East Baton Rouge, Abbott W. Metz and Michael W. Smith, appealed the judgment rendered and signed on November 8, 1979, by the District Court in favor of the defendant, Autry J. Pourciau, denying the plaintiffs’ request for a permanent injunction and rejecting their demands at their costs. We affirm.

The defendant is the owner of a 15-acre tract of land on the easterly side of Sutter Road, situated in East Baton Rouge Parish, Louisiana. The Pourciau tract is unimproved land with some pecan trees, and was purchased by him in October of 1976 for residential purposes. Near the center of the frontage line of this tract was a ditch about four feet wide extending a length of 300 feet toward the rear of the property, and connecting with a culvert beneath Sut-ter Road in the easterly road ditch. (There is also a road ditch on the west side of Sutter Road.) Surface water and sewage (septic effluent) are channeled through the culvert into the ditch onto the defendant’s property. Plaintiffs, Metz and Smith, have residences across Sutter Road from defendant Pourciau. The Metz and Smith properties are slightly higher than the Pourciau tract. Thus the defendant’s tract is ser-vient to the plaintiffs’. The channeling of the area’s waters and sewage onto Mr. Pourciau’s land rendered it unsuitable for him to construct a residence on the property. Several attempts, without success, were made to alleviate the situation. In November of 1978, the defendant completely filled up the man-made ditch on his property, which caused a flooding condition in the area. On December 1, 1978, the Parish obtained a temporary restraining order and sought a preliminary injunction. The defendant filed dilatory and peremptory exceptions. Then, an amended petition was filed, bringing in the individual plaintiffs as residents affected by the flooding conditions, with all of the plaintiffs asserting a servitude of natural drainage.

When the matter came on for hearing on the preliminary injunction, the trial court granted the defendant’s motion for a directed verdict. It was entered after the plaintiffs had presented their case, and dismissed their rule and denied the preliminary injunction. The judgment was rendered July 20, 1979, and signed on July 26, 1979. Subsequently, the trial court signed a judgment on November 8, 1979, decreeing that the plaintiffs’ request for a permanent injunction be denied based on the stipulation of counsel that the testimony presented by the plaintiffs and all issues at the hearing for the preliminary injunction would be the same on the hearing for a permanent injunction. It is this judgment from which the plaintiffs have appealed.

The evidence is incontrovertible that the ditch which is entirely on the Pourciau tract is “man-made,” and this is conceded by the plaintiffs-appellants. Their position is that the servient estate of Pourciau has been altered by his filling in the “man-made” ditch, which has adversely affected the natural flow of waters from the dominant estates of both Metz and Smith, and, further, has adversely affected the parish road.

The plaintiffs’ claim for injunctive relief, to reopen the ditch on defendant’s lands, is based on the servitude of natural drainage articles of the Civil Code, LSA-C.C. arts. 655 and 656.

The codal articles relied upon by the plaintiffs give them only a servitude of natural drainage. The jurisprudence relating to natural drainage establishes the following rules:

The servient estate owes a duty to the dominant estate to receive the surface waters naturally flowing from the dominant estate upon the servient estate. The owner of the servient estate can do no act which would impede the natural flow of waters from the dominant estate upon his lands. The owner of the dominant estate may alter his own property to facilitate the natural drain and may make all drainage works which are necessary to the proper development of his estate. To that end, he may ditch his lands consistent with the natural flow of surface waters, even though the incidental effect of such ditching may increase the rapidity of the flow .when it reaches the servient estate. But, the owner of the dominant estate can do no act which would tend to throw upon the servient estate the burden of receiving waters which would not otherwise drain upon it. In oth-. er words, he is not allowed to ditch his lands or do other drainage works by which the waters running on his lands will be diverted from their natural flow and concentrated so as to flow on the servient estate at a point which would not be their natural destination, thus increasing the volume of water which would have naturally flowed over the servient estate. For, to do this would render the natural servitude of drainage more burdensome. See Nicholson v. Holloway Planting Company, 255 La. 1, 229 So.2d 679 (1969); Ludeling v. Stubbs, 34 La.Ann. 935 (1882); Thibodeaux v. Landry, 351 So.2d 522 (La.App. 3 Cir. 1977); Freestate Industrial Development Company v. T. & H. Inc., 209 So.2d 568 (La.App. 2 Cir. 1968), writ refused, 252 La. 172, 173, 210 So.2d 54 (1968).

The record of this case establishes that works were done which diverted the surface waters from their natural flow and concentrated them so as to flow on the servient estate, the Pourciau tract, at a point which would not be their natural destination. Most, if not all, of the surface waters on tracts of land lying west of Sutter Road were channeled by means of a road culvert and a man-made ditch onto the defendant’s land, thus increasing the volume of water which would have naturally flowed over the Pourciau tract. See Nicholson v. Holloway Planting Company, supra.

At the trial of the preliminary injunction, the evidence showed that Sutter Road ran in a north-south direction and that the defendant's 15-acre tract fronted 495 feet on that road and ran about 1,300 feet deep (in an easterly direction away from the road) and that there was a 300-foot ditch running toward the rear of Mr. Pourciau’s property. The evidence also showed that there were two relatively narrow drainage ditches on each side of Sutter Road in the vicinity of the properties involved in this case. Additionally, a culvert had been installed under the roadbed in the area where the properties at issue abutted Sutter Road on each side. This channeled the water and sewage, and had the effect of increasing the volume of water on the Pourciau property.

Mr. Pourciau and Mr. William Addison, the Assistant Director of Public Works and a civil engineer, testified that the ditch, which is the focal point of this litigation was in fact “man-made.” The evidence showed that Mr. Pourciau partially or completely filled in the ditch three times. The first two times the ditch was only filled at a point near Sutter Road. After he received complaints from residents of the area, Mr. Pourciau dug out the ditch again to accommodate those residents, but he indicated to the parties that something would have to be worked out to prevent flooding of water and sewage on his lands. When nothing was worked out to alleviate the flooding on his property, the defendant filled the ditch once more, but only partially (near the road). However, the filling was washed out by heavy rain shortly thereafter. At that time, more discussions took place between Mr. Pourciau and the neighboring landowners, but no agreement was reached between them and the Department of Public Works (East Baton Rouge Parish) as to how to alleviate the flooding condition. After nothing was accomplished in that regard, the defendant completely filled in the ditch. This precipitated the injunctive proceedings.

The case of Thibodeaux v. Landry, supra, illustrates that in order to do what was done in the instant case, digging ditches and installing culverts, the owners of the dominant estates must acquire a conventional servitude of drain from the servient owner; the servitude of natural drainage does not permit the dominant estate to make the drain more burdensome by directing a greater volume of water onto the servient estate.

The plaintiffs-appellants suggest that Cole v. Mott, 351 So.2d 1326 (La.App. 2 Cir. 1977), supports their position that they can require Mr. Pourciau to dig out again a man-made ditch on his property which he has filled in. A careful reading of Cole shows that it is factually dissimilar in that in Cole the servient estate owner constructed levees on his land which actually prevented the natural flow of the surface waters from the dominant estate. That case did not involve the situation where the dominant estate owners rendered the servitude more burdensome. The case of Boxill v. Metrailer, 358 So.2d 986 (La.App. 1 Cir. 1978), is also factually distinguishable. The owner of the servient estate constructed works which impeded the natural flow of water from the dominant estate; causing the water to pond on the dominant estate property to a significant degree and to render former usable areas unusable. It did not involve acts of the dominant estate owner which make the servitude more burdensome.

For the foregoing reasons we affirm the judgment of the District Court at the appellants’ costs.

AFFIRMED.

      . Controlling the issues herein are Articles 655 and 656 of the Louisiana Civil Code (Act No. 514 of 1977), formerly Article 660 of the 1870 Code.
      Article 655 reads:
      An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.
      Article 656 reads:
      The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.


author: LOTTINGER, Judge.

text:
    Carl JENKINS and Dorman Jenkins d/b/a Jenkins Brothers Asphalt v. DICON, INC. and Travelers Indemnity Company.
    No. 13477.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      John N. Gallaspy, Bogalusa, for plaintiffs.
    France W. Watts, III, Franklinton, for defendants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit by Carl and Dorman Jenkins, doing business as Jenkins Brothers Asphalt, against Dicon, Inc. and Travelers Indemnity Company, for money allegedly due under a contract to hard-surface a shopping center parking lot. From a judgment awarding plaintiffs $16,577.75, defendants have appealed, and plaintiffs have answered the appeal.

In early 1974, Dicon, Inc. became the general contractor on the Shopyard Square Shopping Center project in Bogalusa, Louisiana, after the first general contractor defaulted. Dicon’s responsibility to the project’s owner, the Mitchell Company, was to complete the buildings and to hard-surface the parking lot on the shopping center.

On June 4, 1974-following some verbal communications with Dicon representatives-the Jenkinses submitted a proposal to hard-surface the lot for $3.50 per square yard. Dorman Jenkins testified that an original verbal proposal of $5.00 to $6.00 per square yard had been discarded when Dicon representatives informed him of the limited amount of funds available for hard-surfacing the lot. The original proposal including six inches of compacted base material and two inches of asphalt overlay. The proposal actually made provided for only a two inch base with a one and one half inch asphalt overlay.

Jenkins said he repeatedly told Dicon representatives that the two inch base and one and one half inch overlay would be insufficient to handle the traffic that would be using the parking lot, particularly the heavy delivery trucks which serviced the retail establishments. He said a stronger base was needed to compensate for the soft clayish soil which was natural to the area. A week after the Jenkinses submitted their proposal, Dicon sent them a standard form subcontract. The subcontract called for 28,000 square yards of hard-surfacing at $3.50 per square yard, but also contained other provisions requiring the Jenkinses to adhere to the architect’s plans and specifications.

Dorman Jenkins said he refused to sign the subcontract because the plans and specifications called for much more base material and asphalt overlay than Dicon had money to pay for. He said he and his brother soon made a verbal agreement with Dicon personnel to perform the work, with the understanding that the base would be only two inches and the overlay one and one half inches.

Jenkins also testified that much of the asphalt was laid while the base was wet and soggy-a practice against which he repeatedly counseled Dicon representatives. However, he claimed that Dicon, under the owner’s pressure to complete the shopping center as soon as possible, required him to lay the asphalt during the adverse conditions. The Jenkinses and three other witnesses testified that on one occasion, after a truck and asphalt laying machine had become bogged down in the mud, a Dicon representative told the crew to continue laying the asphalt, even though rain was falling. After warning the Dicon representative that the chances of the hard-surface holding were slim, the Jenkinses obeyed the order.

The Jenkins brothers were released from the job in early 1975, but their last invoice of $8,662.50 and a 10% retainage fee of $7,915.25 were withheld by Dicon, which claimed that the Jenkinses had not performed according to plans and specifications. Much of the hard-surfacing broke under stress, and Dicon eventually paid another firm $47,791.63 to remedy the defects.

The Jenkinses filed a lien against the property and brought this suit soon thereafter. Dicon answered and reconvened, claiming the Jenkinses owed it the amount paid to remedy the defects. The trial judge found that “the contractor received from the Jenkins Brothers the quality of job that he bargained for .” He found additionally that the plaintiffs had advised the contractor about laying asphalt under wet and soggy conditions, but that the contractor insisted that the work proceed. The testimony showed that “the failure of the asphalt to hold up in various places resulted from it having been put down on a wet or soggy base, with a very thin layer of asphalt having been put down, apparently as required by the contractor’s budget.”

This case presents questions of fact. The trial judge viewed the witnesses, and it is apparent from his reasons for judgment that he believed the plaintiffs and their witnesses. We have thoroughly reviewed the record, find ample support for the trial judge’s decision, and conclude it is not clearly wrong. The record shows clearly that Dicon had limited funds to hard-surface the lot and was pressed for time to complete the job. Dicon requested-and its representatives accepted-work of an inferior nature. The Jenkinses repeatedly warned Dicon of the problems which would arise because of the insufficient materials and the adverse weather conditions, but Dicon insisted on moving ahead. Dicon, indeed, got what it paid for. It made a bad deal. But it still .must pay the price.

ATTORNEY’S FEES

The Jenkinses, in a supplemental and amending petition, also sought attorney’s fees under La.R.S. 9:2781 and, alternatively, under La.R.S. 9:3902. Plaintiffs answered the appeal seeking attorney’s fees as well as damages for a frivolous appeal.

La.R.S. 9:2781 allows reasonable attorney’s fees against any person who fails to pay an open account within 30 days of receipt of written demand. La.R.S. 9:3902 allows ten per cent attorney fees against a surety who fails to pay his obligation, provided the creditor “has employed an attorney for the purpose, has made written amicable demand on the principal and surety and [30] days have elapsed from their receipt thereof without payment being made, and the full amount claimed in the demand is recovered.”

The trial judge disallowed all requests for attorney fees. We do not question his decision disallowing attorney fees under La.R.S. 9:2781 because the contract between the Jenkinses and Dicon was not in the nature of an open account. It was a one-shot contract for paving, with a relatively firm price agreed to in advance.

However, we are of the opinion that plaintiffs’ claim for attorney fees under La. R.S. 9:3902 has merit. The plaintiffs have complied with all the provisos of that statute, and the defendant surety company did not pay the claim as required under law.

FRIVOLOUS APPEAL

We find no merit in the request for damages for a frivolous appeal. Unless it manifestly appears that the appeal was taken solely for delay, or that there was no serious belief in the merits of the appeal, damages will not lie. Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977).

Therefore, for the above and foregoing reasons, the decision of the trial court allowing the plaintiffs’ main demand of $16,-577.75 is affirmed. The portion of the trial court’s judgment denying attorney fees is reversed, and attorney fees in the amount of $1,657.77 is awarded to the plaintiffs against Travelers. All costs of this appeal are taxed against defendants-appellants.

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

      . La.R.S. 9:2781 provides:
      “When any person fails to pay on open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor when they are living together as husband and wife on behalf of the debtor may be introduced as evidence of written demand on the debtor.
      “If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor, and if the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.”

      . La.R.S. 9.3902 provides:
      “If the surety on a bond fails to pay his obligation and it becomes necessary for the creditor to sue thereon, the latter shall be entitled to ten per cent attorney’s fees on the amount recovered, provided he has employed an attorney for the purpose, has made written amicable demand on the principal and surety and thirty days have elapsed from their receipt thereof without payment being made, and the full amount claimed in the demand is recovered.
      “This Section shall not affect the right to recover interest and costs as otherwise provided by law.”


text:
    Johnnie ADKINS, Wife of Jesse W. Adkins v. LA TERRE DEVELOPMENT CORPORATION, Tenneco Oil Company, the Travelers Insurance Company and James H. Eunice d/b/a Sign Erection Company.
    No. 13484.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Herman N. Young, Houma, for James Eunice.
    James Eunice, in pro. per.
    Byron M. UnKauf, New Orleans, for plaintiffs and appellees.
    James L. Selman, II, New Orleans, for defendants and appellees.
    Robert D. Morvant, Thibodaux, for third-party plaintiff and appellee Convenience Centers, Inc.
    Paul R. Bencomo, New Orleans, for third-party defendant and appellee Houston Gen. Ins. Co.
    Bruce M. Horack, New Orleans, for third party defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This personal injury litigation is before us on a summary judgment relieving Houston General Insurance Company (Houston), insurer of one of the defendants, Sign Erection Company (Sign), from liability and from its duty to defend based on an exclusionary clause in the policy. Sign brings this appeal.

The plaintiff, Johnnie Adkins, stepped into a hole in front of a shopping center in Houma, Louisiana on February 23, 1976. Plaintiff claims the defendant, Sign, negligently failed to fill the hole some 11 months earlier following removal of a store sign from one part of the shopping center to another. Sign brought Houston into the litigation on a third party demand, alleging coverage for any liability on the part of Sign under a “Manufacturers’ and Contractors’ Liability Insurance Policy.” Houston denied coverage based on the “completed operations” exclusion of its policy. The trial judge agreed with Houston, denied coverage under the policy and dismissed the third party demand on motion for summary judgment.

The title of the policy in question is “Manufacturers’ and Contractors’ Liability Insurance Coverage for Premises and for the Named Insured’s Operations in Progress.”

Under the general language of the policy, Houston agreed to pay for bodily injury and property damage which the insured became legally obligated to pay as a result of an “occurrence.” However, coverage under the policy did not apply, according to exclusion (p), “to bodily injury or property damage included within the completed operations hazard or the products hazard[.]”

The definitions portion of Houston’s policy states:

“Completed operations hazard includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
“(1) When all operations to be performed by or on behalf of the named insured under the contract have been completed.
“(2) When all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
“(3) When the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

The question before this court is whether the operation had been completed prior to the injury complained of.

Defendant-appellant, Sign, relies heavily on the case of Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958). This case has been distinguished by this court in Mut v. Newark Insurance Company, 289 So.2d 237 (La.App. 1st Cir. 1974), wherein we pointed out that as a result of Kendrick, insurers rewrote their insurance policies to alleviate the ambiguity existing in the completed operations hazard exclusion. For cases applying the “completed operations hazard” exclusion see: West Brothers of DeRidder, Louisiana, Inc. v. Morgan Roofing Company, Inc., 376 So.2d 345 (La.App. 3rd Cir. 1979); Aetna Casualty and Surety Company v. Rothman, 331 So.2d 81 (La.App. 1st Cir. 1976); and Meier v. Hardware Mutual Casualty Company, 281 So.2d 793 (La.App. 3rd Cir. 1973).

As mentioned above, this matter was resolved on a motion for summary judgment. There is no factual dispute that the operation had been completed sometime prior to the injury. Therefore, in the absence of a genuine issue of material fact, summary judgment must be granted if mover is entitled to judgment as a matter of law. La.C. C.P. art. 966.

This court is convinced that the only insurance Sign purchased other than automobile liability insurance was “Manufacturers’ and Contractors’ Liability Insurance Coverage for Premises and for the Named Insured’s Operations in Progress.” Sign did not purchase “completed operations hazard” coverage as above defined. Completed operations insurance affords coverage “if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from the premises owned by or rented to the named insured.” Since the “bodily injury” occurred after the operation had been completed, and completed operations coverage was not purchased, we conclude the trial judge was correct. Additionally, since the policy excludes coverage, there is no duty to defend.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.


text:
    Gordon Leon DUFFIE v. Diane Laird DUFFIE.
    No. 13499.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Writ Refused Sept. 19, 1980.

      Michael J. Matthews, Gonzales, for plaintiff and appellant.
    Ralph Tureau, Gonzales, for defendant and appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a rule to change custody filed by the mother against the father. From a judgment awarding “provisional” custody of the nine year old boy to the mother and “physical possession” of the child to the maternal aunt and uncle, both husband and wife have appealed.

Two prime issues are before us:

(1) Can a custody decree be a “considered decree” if the trial judge who rendered the decree declares in a later custody judgment that his first decree was not “considered”?

(2) In a custody case between ex-spouses in which the maternal aunt and uncle were not parties, did the trial judge err in awarding “physical possession” of the nine year old boy to the maternal aunt and uncle and “provisional” custody to the mother?

THE FACTS

Diane Laird and Gordon Duffie were married on November 12, 1967. One child, Michael Steven Duffie, was born of the marriage on October 21, 1971. In mid-December of 1978, Diane left the matrimonial domicile and took the child with her to Tickfaw, Louisiana. She took a job in Tick-faw caring for the two children of Paul Purvis, who she later married.

On January 10, 1979, Gordon Duffie filed suit in Ascension Parish for a judgment of separation on grounds of abandonment. On the same day, Gordon signed an “affidavit and writ” in Franklin County, Mississippi, charging Diane with kidnapping of the child and grand larceny of a 1971 community automobile. Authorities arrested Diane in Tickfaw on January 15, 1979 on the two charges. Her husband, who accompanied deputies to her residence, took possession of the child. Soon thereafter, he placed the youth in the home of his wife’s sister and her husband, Mr. and Mrs. Ed Ahrend of Brookhaven, Mississippi.

After spending a night in the Amite Parish Jail, Diane was taken to Franklin County, Mississippi, where she was told the charges would be dropped if she admitted herself to a Mississippi mental hospital. She stayed at the hospital for about two weeks and the charges were dropped.

Diane was never served with process of the separation suit, perhaps because the husband had listed as her address the matrimonial domicile which she had abandoned. In a supplemental and amending petition filed January 31, 1979, Mr. Duffie prayed for an immediate divorce on grounds of adultery and sought permanent custody of the child. He also asked that an attorney be appointed to represent his wife and that service be made on the attorney. A court appointed attorney accepted service the next day. Mrs. Duffie was not notified of the trial, but her attorney filed a general denial and apparently represented her at the proceeding. Two witnesses, Mr. Duffie and Diane’s alleged paramour, testified at the trial, and a judgment ordering the divorce was rendered. The court also gave permanent custody of the child to Mr. Duf-fie, subject to “reasonable visitation” of Diane. As to visitation privileges, the trial court added: “It is the finding of this court that due to the habitual intemperance of defendant herein that defendant’s visitation to the aforesaid minor child be limited to the daylight hours as deemed reasonable” by Mr. Duffie.

Diane married Paul Purvis on May 11, 1979, and filed this rule on May 30, 1979.

The record reveals that Mr. Duffie left the child at the Ahrends’ house soon after he obtained physical possession. There is no question that the Ahrends have provided a good and healthy environment for the boy to grow up in.

However, the record also reveals that Diane visited the child at least four times since the youth was placed at the Ahrends’ house. She has also telephoned her son numerous times. Diane’s relationship with her family members was poor, at best, and she felt her family and ex-husband were frustrating some of her efforts to see her child.

Mr. Duffie made numerous allegations as to Diane’s abuse of alcohol and prescription drugs. His evidence, however, was riddled with hearsay and innuendo, and the trial judge correctly disregarded it.

In his reasons for judgment, the trial judge stated that “there had been no real evidence presented which would warrant a finding that [Diane] was unfit morally or otherwise to have custody of her minor child.” The trial judge also noted that a psychiatrist’s deposition, like the testimony in open court, “fails to prove any problem of sufficient magnitude to warrant depriving the mother of custody. The father, due to his employment and lifestyle, cannot provide for the actual physical custody of the child. In addition, the court finds him to be unduly harsh in his conduct and outlook on life and to have deliberately testified falsely under oath for the purpose of deceiving the court. Custody should therefore be vested in the mother.”

“However,” the trial court continued, “the child has now become accustomed to an environment which is economically, socially, morally and educationally superior to anything he has ever known. He expressed to the court in chambers after he had had opportunity to visit with his mother and new stepfather on several occasions a very strong desire to continue to live with his aunt. He went into a paroxysm of fear when the court suggested to him that perhaps he should return to live with his mother. While the court reinterates [sic] its finding that the mother is not unfit [,] the environment which she and her present husband can provide is in such marked contrast to that which the child now enjoys and has become accustomed to that it would be extremely cruel and unjust to the child to compel him to return to his mother.” With that, the trial judge vested “provisional” custody in Diane and “physical possession” in the Ahrends. The court also gave “reasonable and liberal visitation rights” to Diane, consisting of visitation every other weekend from 6:00 p. m. Friday until 6:00 p. m. Sunday, Christmas, Easter, Thanksgiving and the first month of summer vacation.

SPECIFICATIONS OF ERROR

Mr. Duffie on appeal claims that the trial court erred in failing to apply the so called “double burden rule,” which, if applicable, would have required Diane to prove that the present custody arrangement was deleterious to the welfare of the child and that she could have provided a better environment; that the trial court’s failure to apply the double burden rule resulted from an erroneous finding that the first custody decree was not a considered decree; and that the trial court erred in relying on the “maternal preference rule” in awarding Diane “provisional” custody.

Diane on appeal argues that the trial court erred in failing to follow a well established jurisprudential rule giving a parent a greater right to custody in most cases over a nonparent.

CONSIDERED DECREE

The proceeding in which Mr. Duffie obtained permanent custody of the child originally was in the nature of a confirmation of default. No transcript of the proceeding was kept, thus none is before us on appeal. Mr. Duffie claims that the statement in the trial court’s judgment concerning Diane’s “habitual intemperance” and limiting her visitation rights is an indication that the trial court took evidence on the custody issue and rendered a “considered decree.”

This court in Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976), held that “the party alleging the applicability of the double burden rule must show, through introduction of the transcript of the default proceedings or otherwise, that the custody issue was ‘considered’ in the prior proceeding.” Page 587. Mr. Duffie contends that, though a transcript of the default proceeding is not available, he has “otherwise” shown that the custody issue was considered. The trial court, however, found that its first custody decree was not a “considered decree.”

We were unable to find in the record anything but some self-serving statements by Mr. Duffie regarding the circumstances surrounding the custody decree. The trial judge under the peculiar circumstances of this case was in a unique position to determine whether his first decree had or had not been “considered.” The trial court found that Mr. Duffie had “deliberately testified falsely under oath for the purpose of deceiving the court.” In his reasons for judgment, the trial judge gave no indication whether this false testimony was in the instant proceeding, or during the confirmation of default. We find nothing in the record that would lead us to believe that the trial judge was referring to this proceeding. We thus conclude he had reference to the original default hearing. Since the trial court apparently concluded its original custody decree was based on false testimony, the trial judge was correct in holding that its first decree was not a considered decree.

CUSTODY

The primary consideration in every case between parents involving child custody is the best interest of the child. La.C.C. art. 157; Fulco v. Fulco,, 259 La. 1122, 254 So.2d 603 (1971); Shanklin v. Shanklin, 376 So.2d 1036 (La.App. 1st Cir. 1979). The trial judge’s written and oral reasons for judgment reflect a deep concern on his part to do what was right in this case. Based to a large extent on a private discussion with the youth, the trial judge determined that the child’s best interest lay in keeping physical possession with the maternal aunt and uncle and provisional possession with the mother, and giving reasonable and liberal visitation rights to the mother. His holding, however, runs headon into the rule laid down by the Louisiana Supreme Court in Wood v. Beard, 290 So.2d 675 (La. 1974).

The court in Wood v. Beard, supra, held that the parent has the paramount right to the custody of the child and can only be deprived of custody under compelling circumstances. In so holding, the court said at 677:

“It is in the best interest of the child of tender years to grant custody to the mother unless the mother is unfit or otherwise unsuitable. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and cases there cited. In the application of this rule it is not appropriate for the court to compare the mother’s home with another when the mother and her home are acceptable, and then award the custody to the contestant who can provide greater advantages for the child. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759 (1964); State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729 (1935). The best interest of the minor is not served by denying parental custody after deciding which of two qualified, competing family groups can deliver a quality of child custody more pleasing to the court. A judicial comparison of qualified competitors for custody of a child does violence to the rule of ‘parental right.’ (See Blow v. Lottman, 75 S.D. 127, 131, 59 N.W.2d 825 (1953): ‘If the mother is a fit parent she cannot be denied custody of her children even though the grandmother is better qualified to rear them.’). “When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. (Citations omitted).”

The ruling of Wood v. Beard has been followed in Deville v. LaGrange, 379 So.2d 37 (La.App. 3rd Cir. 1979); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), writ denied 369 So.2d 710 (La. 1979); Ingram v. Saragusa, 313 So.2d 324 (La.App. 1st Cir. 1975); Mertens v. Mertens, 308 So.2d 508 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 240 (La. 1975).

It could of course be argued that by awarding provisional custody to the mother and physical possession to the Ahrends, the trial court has followed the rule set forth in Wood. However, to allow such a custody order to stand would merely be circumventing the rule of Wood, and this we will not allow. It is clear that unless the parent is unable or unfit, the parent’s right to custody of the child vis-a-vis nonparents is superior.

Here there has been no finding whatsoever that the mother is unfit to care for her child. In fact, the trial judge found just the opposite. The evidence indicates that Diane is presently providing a good and healthy environment for the Purvis children, and that she and her husband are willing and able to provide a good home for her son. On the the other hand, Mr. Duf-fie’s job and other circumstances prevent him from providing a proper atmosphere for his son.

Inasmuch as we conclude that the trial judge was in error in awarding physical possession herein, and that permanent custody should have been awarded to the mother, we will remand this case to the trial court for the limited purpose of fixing reasonable visitation privileges on the part of the father. Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and permanent custody of Michael Steven Duffie is awarded to his mother, Mrs. Diane Laird Purvis, and this matter is remanded to the trial court for the purpose of fixing reasonable visitation privileges on the part of the father, Gordon Leon Duffie. All costs of this proceeding are to paid by defendant-in-rule, Gordon Leon Duffie.

REVERSED, RENDERED AND REMANDED.

      . The suit to change custody was filed as a separate proceeding by the mother rather than as a part of the original divorce and custody proceeding. Separate captions, numbers and records are a part of this record on appeal. The trial judge treated the rule to change custody, though a separate proceeding, as consolidated with the original proceeding, and rendered his judgment in the original proceeding. We use the caption of the original proceeding, and treat the pleading to change custody as if it had been filed in that suit.


text:
    INSURANCE PLANNING SERVICE CORPORATION v. MERCEDES BENZ OF NORTH AMERICA, INC., University Volkswagen, Inc., and Miller-Terrell Imports, Inc.
    No. 13502.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      MacAllynn J. Achee, Dodd, Achee & Burt, Baton Rouge, for plaintiff-appellant Insurance Planning Service Corp.
    E. Wade Shows, Adcock, Dupree & Shows, Baton Rouge, for defendants-appel-lees Mercedes Benz of North America, Inc., University Volkswagen, Inc., and Miller-Terrell Imports, Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a redhibition suit. Plaintiff, Insurance Planning Service Corporation, filed suit against Mercedes Benz of North America, Inc. (Mercedes Benz), University Volkswagen, Inc., and Miller-Terrell Imports, Inc. (Miller-Terrell) for the return of the purchase price of two (2) Mercedes Benz automobiles purchased by plaintiff. From a judgment sustaining a peremptory exception of prescription in favor of defendant, Miller-Terrell, plaintiff has appealed.

On January 31, 1975, and February 24, 1975, respectively, plaintiff purchased a 1974 450 SLC Mercedes Benz and a 1975 450 SEL Mercedes Benz. Plaintiff alleges that since the dates of the purchases it has experienced continual difficulties, unsuccessful repair attempts, and numerous defects sufficient to constitute redhibitory vices in both automobiles. The last repairs to both automobiles were made on April 9 and 10, 1976. Suit was filed on June 24, 1977.

In opposition to the peremptory exception of prescription, plaintiff-appellant argues that it met on June 29, 1976, with representatives of Miller-Terrell and Mercedes Benz, and was told that they would do everything within their power to repair the vehicles to plaintiff’s satisfaction. The plaintiff, however, refused to give defendant, Miller-Terrell, the automobiles unless some type of transportation was furnished while the automobiles were being repaired. Plaintiff argued that the substitute transportation was necessary because the automobiles were used in the plaintiff’s business. Miller-Terrell refused this request but plaintiff-appellant contends that the Mercedes Benz representative led plaintiff to believe that something might be worked out as far as a rental car was concerned.

La.C.C. art. 2534 provides that the prescriptive period in a redhibitory action is one year from the date of sale. However, the jurisprudence recognizes that this prescriptive period does not begin to run until the seller abandons his attempts to repair the defect. White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La.App. 3rd Cir. 1978), writs granted on other grounds, 362 So.2d 1116 & 1117 (La.1978); Alexander v. Burroughs Corporation, 350 So.2d 988 (La.App. 2nd Cir. 1977), affirmed in part and reversed in part on other grounds, 359 So.2d 607 (La.1978); Williams v. Ford Motor Company, 307 So.2d 159 (La.App. 1st Cir. 1974), writ denied, 309 So.2d 684 (La.1975); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4th Cir. 1973), writ refused, 286 So.2d 62 (La.1973).

The trial judge apparently concluded, and we agree, that Miller-Terrell’s refusal to take plaintiff’s automobiles for repair under plaintiff’s condition of providing substitute transportation did not amount to an abandonment of any further attempt to repair the automobiles. Necessarily, then, prescription began to run on the date of the last repairs, April 9 and 10, 1976. Suit was filed more than one year after the date of last repairs, thus the exception was properly maintained. The argument by plaintiff that it was led by the Mercedes Benz representative to believe that something might be worked out as to transportation is of no consequence as far as Miller-Terrell is concerned.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    Sarah Watson CARTER v. Charles Robert CARTER.
    No. 13459.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      James D. Thomas, II, Baton Rouge, for plaintiff-appellee, Sarah Watson Carter.
    Ralph W. Brewer, Baton Rouge, for defendant-appellant, Charles Robert Carter.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an appeal by defendant Charles Robert Carter from a judgment fixing past due alimony and child support in the amount of $3,400.00, and finding him to be in contempt of court for failure to pay as ordered.

The record shows that plaintiff Sarah Watson Carter was awarded a divorce from defendant by judgment dated July 13,1979. In that same judgment, she was awarded custody of the three minor children of the marriage, child support in the amount of $2,025.00 per month and alimony in the amount of $675.00 per month. That judgment was appealed, and has been affirmed in an unpublished opinion by another panel of this court. See Carter v. Carter, No. 13,308.

On September 5, 1979, Mrs. Carter brought a rule for contempt and for a judgment making past due alimony executory. This rule was heard on September 20, 1979, but, as of the date of the judgment appealed from herein, had not been decided by the trial judge, apparently because Mr. Carter’s attorney had failed to file a brief which he had requested permission to file.

On October 31, 1979, the rule being considered herein was filed by Mrs. Carter, alleging additional arrearages in alimony and child support during the month of October, and praying that the additional amounts be made executory and that defendant be found in contempt for failure to pay alimony and child support as ordered. The hearing was held on November 15, 1979, at which time defendant was found to be $2,900.00 in arrears, and adjudged to be in contempt.

In this court, defendant argues that the original judgment of July 13, 1979, was erroneous, and that the judgment fixing arrearages must also be found erroneous. Since we have affirmed the July 13 judgment in case no. 13,308, this argument is without merit.

The other assignment of error is that defendant should not have been found in contempt of court because he is unable to pay the alimony awarded by the judgment of July 13, 1979.

The record affirmatively shows that Mr. Carter has a net worth in excess of $1.2 million, owns unencumbered real estate from which he receives an income of about $60,000.00 per year, has certificates of deposit of about $180,000.00, from which he receives interest income; and owns other encumbered revenue producing property. His financial situation was considered by the trial judge when fixing the original award, which has now been affirmed by this court, and it has not changed materially since that time. Mr. Carter’s argument seems to be that he must use his income to satisfy debts owed by his separate estate and the community estate, and cannot afford to pay the amount fixed by the trial judge.

We find no abuse of discretion in the finding of the trial judge that Mr. Carter is financially able to pay the alimony and child support fixed herein, or in his finding that Mr. Carter is in contempt of court because of his failure to make the payment as ordered.

We find no evidence that Mr. Carter has made a good faith effort to comply with the court’s order to pay alimony and child support. If anything, the record indicates to the contrary. See Nelson v. Nelson, 311 So.2d 265 (La.App. 1st Cir. 1974).

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

AFFIRMED.


author: PONDER, Judge.

text:
    Ivy B. COURTNEY v. CUMIS INSURANCE SOCIETY et al.
    No. 13449.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    C. James Carville, Jr., Mary O. Pierson, Beychok, Cooper, Pierson, J. Patrick Screen, Jr., Baton Rouge, for plaintiff-appellant.
    Paul Marks, Jr., Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, Henry L. Sarpy, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This action arose from a three car collision. Plaintiff appealed the finding of no liability of one of the defendants and the amount awarded.

We affirm.

Courtney’s car, stopped in a line of traffic, was struck in the rear by a vehicle driven by Vaughn. Vaughn’s car was struck in the rear by one driven by Lee. The sequence of these collisions is in dispute. Plaintiff contends that he was struck twice, first because of Vaughn’s failure to stop and then because of Lee’s striking Vaughn’s car; he produced a witness to corroborate his version.

Vaughn contended he was propelled into plaintiff’s car by Lee’s car. Lee admitted striking Vaughn.

The trial court accepted Vaughn’s version and dismissed Vaughn, his employer and his insurer. We cannot say this is manifestly wrong.

The award of $7,500.00 was not proved to be so low as to be an abuse of discretion. Plaintiff made considerably less money in 1977 than in 1976, but the causal connection between his injuries and the loss of income was not proved. At the time of the accident he was a general foreman carpenter; this required little or no manual labor. He continued to work after the accident, in July, 1976. Apparently 1977 was a slow year for all carpenters, whether laborers or foremen. Therefore, we cannot say a loss of wages beyond the initial weeks following the accident was proved.

While plaintiff believes himself to be disabled, the doctors’ testimony does not support this. Also, the testimony of plaintiff’s doctors did not prove the award for physical or mental suffering should be increased. There was no proof as to what, if any, future medical expenses would be required. The suggested procedure by the doctors, a myelogram, to determine what, if any, back injury exists has been refused by plaintiff.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Phebus N. HOTARD v. Malcolm MILLET, Director, etc.
    No. 13460.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    W. P. Macmurdo, Baton Rouge, for plaintiff Phebus N. Hotard.
    Michael C. Barron, Special Counsel, Dept, of Public Safety, Baton Rouge, for defendant Malcolm Millet, Director of Department of Public Safety.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a denial of a restricted driver’s license.

We affirm.

Plaintiff’s car was stolen and was involved in an accident. Plaintiff had let the insurance on the car lapse.

LSA-R.S. 32:861 requires, with limited exceptions, liability insurance for every motor vehicle. The sanctions for violation of this section are found in LSA-R.S. 32:863. LSA-R.S. 32:863(c)(3) provides for restricted driving privileges, after revocation and suspension, when a person’s livelihood requires the use of a motor vehicle, when transportation is an integral and inseparable aspect of a job. It does not apply to driving to and from work.

Plaintiff argues that he sells real estate as a side job and therefore needs to drive. However, plaintiff’s primary source of income is from his job at Ethyl Corporation. It is apparent from the record that the reason plaintiff wants a restricted license is to get to and from the job at Ethyl. The statute does not allow a license to be granted for this purpose.

The trial court was correct in not applying LSA-R.S. 32:414 and 415.1 to this situation. The provisions for a restricted license after violation of LSA-R.S. 32:861 have been provided for in Section 863. The provisions for restricted licenses in Sections 414-415.1 apply to other sections of the traffic regulations in Title 32.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Mrs. Bonnie YELVERTON v. Mrs. Jayne H. MASSENBERG.
    No. 13472.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Bonnie Yelverton in pro. per.
    Jayne H. Massenberg in pro. per.
    Jerry H. Bankston, Baton Rouge, for ap-pellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment for defendant on a suit for repairs to a vehicle.

We affirm.

The defendant had a problem with a leaking car radiator. She had it repaired by Shorty’s Radiator Service, Inc. Several months later another leak appeared and defendant went back to Shorty’s. They agreed to put in a new radiator core.

After defendant drove her car a few miles, a green liquid began pouring out of the car. Defendant told Shorty’s of the problem over the telephone. At their instructions, she drove back and was then told she had a bad water pump. She became annoyed, drove her car home and she and her husband stopped payment on the check. Plaintiff, as secretary of Shorty’s Radiator Service, Inc., filed suit for the amount owed for the radiator.

The trial court found that a contract to repair the leak existed between the parties; and that there was a failure of consideration on plaintiff’s part.

The terms of the oral contract had to be determined by the testimony. The trial court chose to believe defendant and her husband. We have carefully examined the record and can find no manifest error.

The judgment is affirmed at appellant’s costs.

AFFIRMED.