author: CURRAULT, Judge.

text:
    CITY AND COUNTY OF SAN FRANCISCO and Eda Fuentes v. Gene A. JUERGENS.
    No. 5-324.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      John M. Mamoulidas, William C. Credo, III, Andrea Price, Gretna, for plaintiff-appellant.
    Carol Lynn Doskey, New Orleans, for defendant-appellee.
    Before ' BOWES, CURRAULT and GRISBAUM, JJ.
   CURRAULT, Judge.

This suit arises from an action brought by plaintiff, the City and County of San Francisco (hereinafter referred to as the State) against defendant Gene A. Juergens for reimbursement of welfare monies paid to defendant’s ex-wife and child. The action was brought pursuant to the Uniform Reciprocal Enforcement of Support Act (hereinafter referred to as URESA). LSA-R.S. 13:1641 et seq.

The facts of this case reveal that on June 10, 1970, Ida Emelda Fuentes and Gene A. Juergens were married in San Francisco, California. The marital domicile was shortly thereafter established in New Orleans. On April 1,1972, Eugene Jr. was born; but soon after the birth of Eugene Jr., the couple separated. On June 14, 1972, Ms. Fuentes sought and obtained a judgment of child support from the juvenile court in Orleans Parish in the amount of $70 every two weeks.

Child support payments were made in accordance with the judgment up until the time Juergen’s wife left the jurisdiction with the baby without any indication where she was going. Although Mr. Juergens continued to reside in the area and his address was always easily ascertainable, his wife obtained a divorce in Puerto Rico in 1975 without the knowledge of Juergens, and she later remarried. In ignorance of this fact, Juergens subsequently obtained a divorce in Jefferson Parish through service on a curator in September of 1978, and, at that time, the curator was also unable to locate Ms. Fuentes.

In the meantime, Ms. Fuentes applied for Aid to Families with Dependent Children from the City and County of San Francisco in October, 1976, and received aid until August, 1979, when she remarried. The payments were originally set at $224 per month, but were later increased to $331. Seven years after Ms. Fuentes’ disappearance from Louisiana, in September of 1979, Mr. Juergens was served with an order to show cause in this instant URESA proceeding.

The URESA petition certified and filed into the juvenile court for the Parish of Jefferson, requested reimbursement to the City and County of San Francisco of $9,377 in welfare payments plus court costs. In a judgment rendered October 13, 1980, the action was dismissed for reasons that appel-lee should not be made to pay the accumulated bill when no demand was made on him up until that time. Appellants appealed that judgment, and the Fourth Circuit Court of Appeal remanded the case in a judgment rendered on October 13, 1980. The remand was based on the state of the record in the original trial proceeding, in that certain facts the trial judge dictated into the record apparently were ascertained in pre-trial conference from documents not found in the record before the Fourth Circuit Court of Appeal at that time. Accordingly, the case was remanded for evidence. City and County of San Francisco v. Juergens, 405 So.2d 1096 (La.App. 4th Cir.1980).

On remand, the matter was heard before the Honorable Judge Sol Gothard, Division A, Juvenile Court, on January 22,1982, and the foregoing facts were established by the evidence.

At that time, the juvenile court judge again found in favor of Mr. Juergens and reaffirmed his original judgment dismissing the case. His reasons are based on the fact that Ms. Fuentes left New Orleans and in all the ensuing years did not inform Mr. Juergens of her or the child’s whereabouts. The judge further stated that Mr. Juergens had had stable and continuous residence in Metairie, Louisiana and that he had been denied an opportunity to see his child. Furthermore, no demand for support was made during the years Ms. Fuentes was receiving welfare benefits, the only demand being made after the welfare payments were terminated. Consequently, the judge held that it was inequitable to ask him to pay for support now.

From this judgment, the State perfected this appeal.

Appellant asserts the following specifications of error:

I. The trial judge erred in finding it inequitable to demand support from appel-lee under the facts of this case;

II. The trial judge erred in basing his argument in part on fact that demand for support was only made after welfare payments terminated.

III. The trial court erred in failing to order appellee to reimburse the appellant under the theory that appellant was a nego-tiorum gestor for appellee, by virtue of having assumed in appellee’s absence the obligation of providing support to appellee’s minor son, who was in destitute and necessitous circumstances. Louisiana Civil Code Articles 2295, 2299, L.R.S. 14:74(B).

In view of the fact that appellant’s second and third assignments of error can be easily disposed of, those issues will be addressed first.

Appellant’s second argument concerns the question of prescription. Louisiana law affords an obligee of child support three years to bring an action to enforce the payment, or the obligation is extinguished. LSA-C.C. art. 3538.

The aid payments commenced in October of 1976 and terminated in August of 1979. The action herein was filed on September 25,1979, or one month prior to the date that prescription would have begun to extinguish the first AFDC payments. Thus, it is clear that an action to enforce child support would not have prescribed in this instance. However, this issue is irrelevant since no such action was brought. This is an action solely for reimbursement of welfare funds by a state agency.

Appellant’s third assignment of error urges this court to apply the rules of quasi-contract under LSA-C.C. art. 2295 et seq. to the obligation under the theory of negotiorum gestio.

A review of those articles and the case law leads to a conclusion that the facts herein are inapplicable since both articles and cases clearly refer to business operations. Therefore, the court finds no merit in this allegation.

The primary and final issue presented for our consideration is whether appellant has a right to collect reimbursement for Aid to Families with Dependent Children payments under URESA and, if so, whether the trial court erred in finding reimbursement inequitable under these facts.

URESA in Louisiana is embodied in LSA-R.S. 13:1641-1698. The purpose of the Revised Uniform Reciprocal Enforcement of Support Act is to improve and extend by reciprocal legislation the enforcement of duties of support. LSA-R.S. 13:1641. While it is clear that a state or its political subdivision furnishing support has the same right as an individual to initiate proceedings for reimbursement, the duty of support is that imposed under the laws of the state where the obligor resided during the period for which support is sought. LSA-R.S. 13:1661; 13:1662. Certain procedures are prescribed for that obligee seeking reimbursement or continuing support. A simple statement of how the prescribed procedure operates was quoted by the Louisiana Supreme Court with approval in Freeman v. Freeman, 226 La. 410, 76 So.2d 414, 415 (1956) as follows:

The basic method of operation under the reciprocal act is quite simple. An obligee (the person to whom support is owed) petitions the designated court in her home community; that court verifies the petition, attaches its certificate, and transmits the case to a court in the responding state where the obligor (person owing support) is now present; the responding court takes jurisdiction over the obligor, ascertains whether a duty of support is owed, and enters the necessary support order. Interrogatories and depositions are used if the obligor denies that he is liable. The proceeding is civil in nature and confrontation is not necessary.

Thus, the state initiating the proceedings does not have the right to determine the actuality of the obligation, the amount owed, or arrearages, since this is a prerogative of the responding state (that state where the obligor resides or resided during the period the support is owed).

The importance of this prerogative of the obligor’s state to determine the merits of a support action cannot be lightly regarded. By this process, the obligor is certain that his rights will be adjudicated with proper due process of law, yet the obligee is protected from a recalcitrant obli-gor’s avoidance of support duties by fleeing from the jurisdiction. Conversely, if the obligee leaves the original jurisdiction, the process works as well to insure that an obligor does not avoid the obligation owed by law or decree simply because the obligee chooses to relocate. The history of the act indicates the primary purpose was to prevent a runaway obligor from fleeing across state lines thereby avoiding his or her parental duties of support.

Louisiana mandates that minor children are owed support by both parents. LSA-C.C. arts. 227, 230. The law, however, also mandates that such awards are subject to a hearing on proof of the child’s needs and the ability of an obligee spouse to pay. LSA-C.C. art. 231. Ducote v. Ducote, 339 So.2d 835 (La.1976); Savoie v. Curtis, 354 So.2d 705 (La.App. 4th Cir.1978). Where the URESA statute is employed, the URE-SA obligee must prove its case as in any other civil action. Freano v. Rosenbaum, 399 So.2d 758 (La.App. 3d Cir.1981); LSA-R.S. 13:1677. Furthermore, it is also well established in protection of a party’s due process rights, money judgments in support cases must be supported by jurisdiction over the party cast. Chaplin v. Chaplin, 402 So.2d 795 (La.App. 4th Cir.1981). While URESA removes jurisdictional barriers across state lines, it does so only after the proper proceedings have been initiated.

A review of the facts of this case reveal that the parties married in California, but subsequently relocated to Louisiana. A child was born and sometime thereafter the parties separated. An order of support was granted, and that support was paid conscientiously by the father until such time that the mother fled with the child and effectively disappeared. The father failed in his attempts to locate the mother and child. Several years later, in a divorce action instituted by the father, the curator appointed by the court to represent the absent spouse also failed to locate the mother and child. The father, who has continuously resided in this area from the time the parties separated, at a date unknown to this court, received a cancellation of the support order by the juvenile court for that reason. In the meantime, the mother applied to the State of California for Aid to Dependent Children. Possibly operating under false information provided by the mother, an administrative decision was made to award certain welfare payments to the ex-wife and child. The evidence shows that at no time did the agency attempt to locate the father either prior to or after the decision; which easily could have been done through the federal and state parent finding programs. The procedural protections afforded by the State of Louisiana in child support cases were notably absent. To find for appellant under these facts would be inequitable and contrary to the pronounced public policy of the State of Louisiana in that it would permit a unilateral administrative decision by a foreign state agency to preempt Louisiana law regarding support.

Accordingly, in view of the facts and the law pertinent to the case herein, the judgment of the juvenile court dismissing appellant’s claim for reimbursement is hereby affirmed.

AFFIRMED.

      . When a man undertakes, of his own accord, to manage the affairs of another, whether the owner be acquainted with the undertaking or ignorant of it, the person assuming the agency contracts the tacit engagement to continue it (the management he has begun) and to complete it, until the owner shall be in a condition to attend to it himself; he assumes also the payment of the expenses attending the business.
      He incurs all the obligations which would result from an express agency with which he might have been invested by the proprietors.

      . Memorandum prepared and presented to the 1953 Annual Meeting of the National Association of Attorneys General. Quoted also in Carpenter v. Carpenter, 231 La. 638, 92 So.2d 393 (1956). See also LSA-R.S. 13:1665; 1668; 1672 and 1678.


source: Caselaw Access Project

license: Public Domain

text:
    Paul MURRAY, Jr. v. HOUSING AUTHORITY OF ST. CHARLES PARISH.
    No. 5-335.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Emile R. St. Pierre, Destrehan, for plaintiff-appellee.
    Leon C. Vial, III, Hahnville, for defendant-appellant.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment of the Twenty-Ninth Judicial District Court confirming a preliminary default judgment.

On November 11,1971, a lease agreement was executed in which the plaintiff-appel-lee, Paul Murray, Jr. agreed to lease to the Housing Authority of St. Charles Parish, certain housing units that he owned. The lease agreement gave to the lessor the option of renewing the lease for three additional five-year terms. The lease further required that the property be returned in the condition it was in when received, except for ordinary wear and tear, and also that the lessee would be responsible for good maintenance. On April 7, 1981, near the end of the second term, Mr. Murray informed the Housing Authority (The Authority) that he was displeased with their maintenance of his property, and that at the end of the term he intended to terminate the lease. A copy of the letter was also sent to the Department of Housing and Urban Development (HUD).

On August 21, 1981, plaintiff filed an action for damages, alleging that the defendant had not properly maintained the property, paid the rent for July or August, 1981, or fulfilled the obligation to return the property in its original condition. Plaintiff demanded back rental and compensation for the repairs he would have to make to the property.

The Housing Authority, upon being served with notice of the suit, informed the New Orleans director of HUD of the pending action, and apparently believed that HUD was going to defend the suit. No answer was filed and, as a result, a preliminary default was entered on September 29, 1981. The judgment was confirmed on November 13,1981, and plaintiff was awarded $200,686.16. The defendant, although served, was unaware that HUD had not taken any action, thus was absent and unrepresented. Defendant, on being notified of the judgment, immediately contacted its attorney, who subsequently filed a motion for a new trial which was denied by the trial court on November 19, 1981.

Defendant now appeals the judgment confirming the default.

SPECIFICATION OF ERRORS

(1) The trial court erred in confirming the default judgment against the defendant, a public authority using public funds;

(2) The trial court applied an erroneous standard of law in regarding the defendant in the same manner as it would a private litigant in considering the motion for a new trial; and

(3) The trial court erred in not considering the fact that the defendant believed that HUD had taken responsibility for the suit.

ISSUES PRESENTED IN APPEAL

(1) Whether defendant was acting in the belief that HUD was defending the suit.

(2) Whether defendant, a public body using public funds, should be denied a trial on the merits.

The first issue presented by appellant urges that the default judgment issued against defendant should be annulled because defendant believed that it was being represented by HUD.

Appellant urges that mistake as to representation is a valid ground for annulment of a default judgment in Louisiana, and cites Bell v. Holdcraft, 196 So. 379 (La.App. 2d Cir.1940). There the defendant consulted an attorney when he was served with notice of a suit against him. He believed that the attorney would represent him in the suit; but the attorney believed that he was not to file an answer until he received his fee. Consequently, a preliminary default was entered and later confirmed. The Court of Appeal remanded the case for trial on the merits, remarking, “his lawyer thought one thing and his client the other; but, under the facts above set forth, we are of the opinion his client, appellant here, was justified in his belief and should not have to suffer for the misunderstanding.” However, in Johnson v. Welsh, 334 So.2d 395 (La.1976) and Fineran v. O'Connor, 410 So.2d 273 (La.App. 4th Cir.1982), the courts held that simple failure of the attorney to answer or appear is not grounds to set the judgment aside. Judgments may be set aside only for good reason. Pryor v. Gions, 188 So.2d 739 (La.App. 2d Cir.1966). Good reason is not simply because defendant may be penalized as a result. Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir.1975). Most of the other cases cited by appellant involve annulments of substance pursuant to LSA-C. C.P. art. 2004. In those cases, a judgment can be annulled where an innocent party is deprived of his legal rights through fraud or ill practice and where failure to annul would cause inequitable or unconscionable results. St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3d Cir.1965); N.O. v. LeBourglosis, 23 So. 542 (La.1898).

In its judgment denying a new trial, the court herein recognized that defendant, as well as HUD, was informed properly of the suit. The trial judge also pointed out that plaintiff did not “rush about” to default defendant since plaintiff waited in excess of a month to take the preliminary default and further waited fourteen days to confirm. The proceedings throughout the case were in absolute conformity to law. There exists no misunderstanding of the type elucidated in Bell, supra, in that both HUD and the Housing Department were aware of their responsibilities. The failure of HUD to perform, for whatever reason, is not a basis for an annulment under the cases we have reviewed.

Appellant’s second issue alleges that a public authority using public funds should not be denied a trial on the merits, or that a more liberal standard should apply to public authorities. Appellant cites the court to In Re Quaker Realty, 7 Orleans App. 296 (App. 1910), where that court stated that it would overturn the judgment, “particularly as it is dealing with municipalities administering public property, and where substantial injury might otherwise ensue, good conscience and the welfare of the community at large require the application of a more liberal rule than in the case of ordinary litigants.” (At 297). While we may agree that policies not present in actions between private litigants may require a more liberal interpretation of good cause, the cause here is insufficient to preempt procedural remedies afforded a plaintiff by the Louisiana legislature. LSA-C.C.P. 1701 et seq. Nor is there any authority which totally exempts defendant or any other public or quasi-public body from its procedural responsibilities.

Plaintiff here afforded defendant much leeway prior to bringing suit, and in good faith afforded defendant ample time to attempt to perform its obligations. Further, whatever occurred between HUD and defendant cannot overcome the fact that defendant was the party sued and as such had a duty to attend to its obligation to answer the suit. To hold otherwise would judicially create a total exemption for public or quasi-public bodies from default judgments, a prerogative solely of the legislature.

Accordingly, after a review of the law and the record, we hereby affirm the judgment confirming the default for the reasons stated herein.

AFFIRMED.

      . See LSA-C.C.P. art. 1704, where Louisiana State agencies are accorded special treatment, but are not exempt from default judgments.


text:
    LOUISIANA NATIONAL BANK v. Chester J. VICTOR, Jr.
    No. 5-338.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Larry D. Book, Baton Rouge, for plaintiff-appellant.
    Mary Hotard Becnel, Reserve, for defendant-appellee.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

Plaintiff, Louisiana National Bank (LNB), appeals from a deficiency judgment wherein plaintiff was awarded $419.55.

Defendant, Charles J. Victor, Jr. (Victor), purchased a mobile home executing a promissory note in favor of LNB in the amount of $20,552.50, and securing that note with a chattel mortgage also executed in favor of LNB. Victor became delinquent in his installment payments and was notified by LNB’s personal loans adjustor as to his options and the time within which he had to exercise these options before legal action would be taken. Victor failed to exercise any of the available options and subsequently defaulted on the note. After a rebate of unearned interest, $10,477.62 was due and owing on the note, plus 14.16 percent interest, 25 percent attorney’s fees on principal and interest, and costs.

LNB filed suit under executory process and the mobile home was seized and sold at judicial sale to LNB for $5,666.66. LNB subsequently resold the mobile home for $11,800, incurring expenses of $5,162.57 in repairs and sale costs.

LNB then filed suit for deficiency judgment against Victor seeking a judgment in the amount of $10,477.62 (plus 14.16 percent interest, 25 percent attorney’s fees on principal and interest, and costs, minus a credit in the amount of the judicial sale [$5,666.66]).

The trial court credited Victor with an additional installment payment of $342.54, which was accepted by LNB but had never been credited to him. The trial court additionally took evidence as to how much profit was made on the resale of the mobile home over objection of LNB’s counsel, and later subtracted that profit made by LNB on the resale from the amount Victor owed LNB, and then rendered judgment in favor of LNB in the amount of $419.55.

LNB has appealed and urges that the trial court erred by allowing into evidence and then rendering judgment based upon the expenses and profit of plaintiff on the resale of the mobile home after judicial sale over objection of plaintiff’s counsel.

The only issue for decision on appeal is whether the trial court erred in allowing Victor a credit beyond the amount of the sheriff’s sale.

“When there is foreclosure against mortgaged property, the amount to be applied to the debt secured by the mortgage is limited to the proceeds of the judicial sale. The fact that purchaser, even though it be mortgagee, afterwards sells the property for more or less than the amount realized cannot affect the sum to be applied to the debt.... The debt is reduced or extinguished only to the extent of the amount obtained at the judicial sale, assuming no defect in the procedure.” First Nat. Bank of Lafayette v. Doni Homes, 338 So.2d 1202, 1204, (La.App. 3d Cir.1976).

The application of the profit made by LNB in the resale against what was owed by Victor to LNB is clearly contrary to established principles of law in Louisiana.

Accordingly, we find the amount owed in the deficiency judgment to be as follows:

I
$10,477.62 (Balance on note/plus 14.16% interest, 25% attorney’s fees on principal & interest, and costs)
- 342.54 (Uncredited installment by Victor) $10,135.08 (Balance due)
II
$ 5,666.66 (Judicial sale price of mobile home)
- 1.053.70 (Judicial sale costs)
$ 4,612.96 (Amount obtained at judicial sale)
HI
$10,135.08 (Balance due)
- 4.612.96 (Amount obtained at judicial sale)
5,522.12 (Amount remaining due to LNB by
Victor)

Therefore, for the above stated reasons, the judgment of the trial court is reversed in part and amended so that there be judgment in favor of plaintiff (LNB) and against Chester J. Victor, but in the sum of $5,522.12 plus 14.16 percent interest, 25 percent attorney’s fees on principal and interest. Defendant-appellee is to pay all costs.

REVERSED IN PART, AMENDED IN PART AND RENDERED.


text:
    Eileen Rooney Ritter, wife of/and Raymond RITTER v. Brenda K. WILLIS, Vahe Zorthian, Service Cab Company and Insurance Company of Florida.
    No. 5-353.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Stephen N. Elliott, Bernard, Cassisa, Babst & Saporito, Metairie, for defendants-appellants.
    Merlin F. Lombard, Lombard & Corte, New Orleans, for plaintiffs-appellees.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This is an appeal from a jury verdict against defendant-appellant, Insurance Company of Florida, and in favor of plaintiff-appellee, Eileen Rooney Ritter, for injuries sustained as a result of an automobile collision.

On May 30, 1978, at approximately 4:15 p.m., plaintiff, Mrs. Ritter, and defendant, Mrs. Willis, were involved in a two-car collision at a traffic signal intersection on Airline Highway in Metairie, Louisiana. The accident occurred when Ritter, exiting Airline Shopping Village at the signal, was struck on the left side by Willis, driver of a Service Cab Company taxicab. Willis was traveling west with a passenger on the way to Moisant Airport, the weather at the time was rainy and there had been a recent heavy downpour. The impact of the collision propelled Ritter’s car into a third vehicle parked in a parking area west of the collision scene. The car sustained total damages and Ritter suffered injuries to her neck, wrist and ankle.

As a consequence of the collision, Mrs. Ritter filed suit and in a jury trial heard on December 7 and 8,1981, the jury rendered a verdict solely against the Insurance Company of Florida in the amount of $20,000, together with legal interest and costs. The other defendants were dismissed by joint stipulation of the parties.

Following a denial of motions for a new trial and remittitur, the Insurance Company of Florida perfected this appeal.

Appellant asserts the following issues for our consideration:

(1) That the trial judge erred in failing to give defendant’s requested jury charge concerning the possible contributory negligence of the plaintiff;

(2) That the jury exceeded its discretion in the amount of recovery awarded plaintiff; and

(3) That the trial judge erred in denying the motion for new trial or the alternative request for remittitur.

Appellant first argues that the failure of the trial court to charge the jury as follows was error:

“If a plaintiff who proceeded into an intersection either against a red light or as it turned green without allowing the vehicle driven by one of the defendants, who entered the intersection while signal light was yellow, sufficient time to clear the crossing, the plaintiff is guilty of negligence which is a proximate cause of the accident. Martin v. Slocom, [La.]App. 1962, 147 So.2d 454 (Emphasis added)”

The trial judge refused the charge on the basis that it is an insufficient statement of the law. After a review of the case law, we agree.

In Correge v. Webb, 284 So.2d 355 (La.App. 4th Cir.1973) writ refused 1973, the court stated:

“The purpose of the yellow warning signal is not only to provide a warning that the light is about to change to red, but also to provide a period of time for traffic entering the intersection just as or just after the light turns yellow to clear the intersection before the green light flashes for opposing traffic. If the burden is placed on the motorist in whose favor the light turns green to keep a lookout for traffic which blatantly disregarded the yellow warning signal, then the function of the yellow caution light will be frustrated. Traffic lights, instead of serving to facilitate the movement of traffic, would then serve to deter its movement.” Correge, supra at page 361.

Furthermore, where the evidence indicates that drivers at intersections controlled by a traffic signal attempt to “ ‘... beat the light’ or be ‘first off the line’, although they may be legally where they are entitled to be, they have violated standards of duty imposed on them as prudent operators of motor vehicles.” Cumis Insurance Society v. Christidis, 418 So.2d 730 (La.App. 4th Cir.1982) at page 732.

Thus, it is evident that while the statement purported by defendant may be partially correct, other cases have expanded and delineated the responsibilities beyond what is stated in the requested jury charge. In addition, the charges submitted to the jury adequately informed the jury as to contributory negligence operating as a bar to recovery, as well as defining proximate cause. Regardless of this particular charge, the jury was informed sufficiently to make the factual determination that the sole negligence of defendant was the proximate cause of the collision. That finding is amply supported by the record. Accordingly, we find no merit in this allegation.

Appellant’s last two arguments assert error as to the amount of recovery awarded, and error in the trial court’s denial of his motion for a new trial and in this alternative motion for remittitur.

While appellant cites several cases to support its request for reduction in quantum, it is established law in Louisiana that the standard of review is whether the trial court abused its discretion. Coco v. Winston, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979); Perniciaro v. Brinch, 384 So.2d 392 (La.1980). In determining the appropriateness of a trial court’s award for general damages, the appellate review is limited. Before an appellate court can disturb a damage award, it must be clearly demonstrated in the record that the jury or trier of fact abused the broad, much discretion rule.

Appellant has cited cases from the various circuits of our State relating to what a particular injury is worth based on length of treatment, amount of disability, etc. However, in Coco v. Winston Industries, Inc., supra, the court stated:

“Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been made, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities and even lifestyles. Furthermore, it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.” At pages 335, 336.

The facts herein reveal that plaintiff, a special education teacher, was on a leave of absence due to an arthritic condition at the time of the accident. As an immediate consequence of the collision she was taken to the emergency room of Hotel Dieu Hospital for treatment. She also saw a rheu-matologist, Dr. Hall, two or three days after the accident; however, it wasn’t clear if this visit was related to the accident. Regardless, her testimony revealed that the impact was severe — -an assertion supported by the testimony of the investigating police officer.

At the time of the accident, Mrs. Ritter had been planning her wedding for several months. The wedding, a large affair, was set for June 3, 1978, five days after the accident. Mrs. Ritter, understandably, felt compelled to continue with her plans, since this event was to be a major emotional and financial one in her life. Further, the evidence disclosed that her wedding day and subsequent honeymoon, as well as the days following, were marred by the pain and inconvenience she suffered as a direct result of the collision.

Notwithstanding the above facts and circumstances which are peculiar to this case, Mrs. Ritter also suffered significant bodily injuries in the accident. Upon her return to New Orleans from her honeymoon, she again contacted Dr. Hall only to learn he was moving his practice to Monroe, Louisiana. Dr. Hall recommended a Dr. Derbes to Mrs. Ritter and she attempted to make an appointment with him but was unable to do so. Meanwhile, Mrs. Ritter continued to suffer so she consulted Dr. David Aiken for treatment on July 6, 1978.

Dr. Aiken examined and evaluated Mrs. Ritter and treated her actively for a cervical sprain, contusion and sprain of the head of the radius, sprain of the left foot, tenderness of the right breast and aggravation of the arthritic condition in the joints of her wrist and ankles. Dr. Aiken treated Mrs. Ritter from July, 1978 to January, 1979. Although Mrs. Ritter was still having problems and suffering pain as a result of the accident which had occurred eight months previously, she and Dr. Aiken agreed by mutual consent that no further appointments would be made after January 8,1979. Dr. Aiken indicated it was his opinion that Mrs. Ritter was still having physical problems attributable to the accident and Mrs. Ritter also testified she was still experiencing pain at the time of discharge. However, the doctor did not believe anything more could be done absent complete rest, a solution which was not feasible apparently because of Mrs. Ritter’s recently resumed obligations as a special education teacher and because of her recent sabbatical.

The jury, considering all the foregoing facts, deliberated at length and reached a unanimous verdict. They did not separate the special bills from the general award. Rather, they made a general award which included all special bills incurred by the plaintiff including the medical and drug bills and the bill incurred for a rental car. A review of the evidence supports a conclusion that the jury award is not manifestly erroneous. Therefore, we find no merit in appellant’s second assignment of error.

Finally, in appellant’s third issue, it is contended that the trial judge erred in denying the motion for a new trial or a reduction in the jury’s award.

In his brief, appellant’s attorney says that, “The trial judge in this case frankly admitted that he believed that this award exceeded the bounds of a jury’s discretion.” In the hearing of appellant’s motion for a new trial or remittitur, the trial judge stated as follows:

“. .. While the award is somewhat higher than I would have given I don’t think it is so high as to be shocking or unreasonable. ... Quite frankly and I will admit the award is somewhat higher than I would have given, I don’t think it is shocking or unreasonable and I say that for a number of reasons.” (Emphasis added)

When the judge presiding over a jury trial is of the opinion that a new trial should be granted only because the jury’s verdict is too high or too low, then a remit-titur or additur is available as a means of avoiding the necessity of a new trial. Miller v. Chicago Insurance Company, 320 So.2d 134, (La.1975); Rossignol v. Rose, 378 So.2d 196 (La.App. 4th Cir.1979).

In the instant case, the trial judge did not believe the jury’s award was unreasonably high or excessive. Thus we hold this assertion meritless as well.

Accordingly, for the foregoing reasons, the judgment of the trial court is hereby affirmed.

AFFIRMED.


text:
    DONALD M. CLEMENT, CONTRACTOR, INC. v. SOUTHEASTERN INDUSTRIAL CONTRACTING, INC. and Fireman’s Fund Insurance Company.
    No. 5-370.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    John W. Waters, Jr., New Orleans, for defendant-appellee-appellant.
    Linda Liljedahl, New Orleans, for plaintiff-appellee-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal arises from the Twenty-Ninth Judicial District wherein the trial court dismissed third-party defendant, Fireman’s Fund, pursuant to its exception of prescription. Defendant, Southeastern Industrial Contracting, Inc. has appealed.

On January 26, 1979, Donald M. Clement Contractor, Inc. (Clement) and Southeastern Industrial Contracting, Inc. (Southeastern) entered into a lease in which Clement agreed to lease to Southeastern one 880 Case backhoe. From that date and for approximately ten weeks, Southeastern occasionally used the backhoe until April 3, 1979, when Southeastern’s superintendent, Doyle Rena, notified Clement that the backhoe would not start or function. Pursuant to this information, Clement’s superintendent made a cursory inspection of the machine and found a broken Bendix gear, black engine oil and a locked engine. Lee Tractor Services, Inc. then inspected the machine and informed Clement as to the cause and extent of the damage (lack of oil pressure and/or dirty oil) and cost of repairs to the engine.

The first indication in writing that Southeastern was considered liable by Clement for the cost of these repairs was in a letter dated June 1,1979. It was at this time that Southeastern informed Clement that it did not consider itself liable for the repair costs, but instead considered Clement responsible for maintenance and repairs of the backhoe. From the latter part of June, 1979 until late January, 1981, no formal demand was made by Clement on Southeastern for the payment of the repair costs of the machine. Because property damage to the backhoe was insured under the special Floater Policy # MSF-286-51-49 issued by Fireman’s Fund Insurance Company (Fireman’s Fund), Southeastern informed Fireman’s Fund as to the possibility of a claim in late 1979. However, as is indicated by a letter from Fireman’s Fund to Southeastern dated February 27, 1980, Fireman’s Fund stated that it would deny coverage for this claim. At this time, though, Southeastern had no claim to make to Fireman’s Fund in that Clement had not made formal demand on Southeastern for the cost of the backhoe repairs.

However, on January 26,1981, Southeastern received written formal demand for payment from Clement’s counsel. Clement then filed suit on May 7, 1981, against Southeastern and Fireman’s Fund. Clement sought the cost of repair of the backhoe as well as the unpaid rental during the time Southeastern had the machine before it broke.

Southeastern answered the petition and third-partied Fireman’s Fund on June 10, 1981, seeking to enforce coverage under the Special Floater Policy and for indemnification.

Exceptions of no right of action and no cause of action and motions for summary judgment were filed by Fireman’s Fund against the petition and the third-party demand. Fireman’s Fund asserted:

(1) Fireman’s Fund was not the liability insurer of Southeastern, and it owed no defense to Southeastern;

(2) No suit was brought by anyone within twelve months of discovery of the loss and any claims under the policy had prescribed; and

(3) The policy clearly and specifically excluded loss due to wear and tear, mechanical breakdown, etc.

Southeastern also moved for summary judgment on the coverage issue and for a determination that Fireman’s Fund had been arbitrary and capricious in denying Southeastern’s claim.

Following hearing on the motions, the trial judge dismissed the claims against Fireman’s Fund as being barred by the twelve-month prescriptive period. Since the trial court found that the claims had prescribed, it did not reach the issues of (1) whether the claims were excluded by the mechanical breakdown provisions of the policy; or (2) whether Southeastern was entitled to penalties and attorney’s fees.

Southeastern has appealed the dismissal of Fireman’s Fund and maintains that the trial court was in error in the following:

(I) The trial court was in error in finding the third-party demand of appellant against Fireman’s Fund had prescribed;

(II) The trial court was in error in not finding that there was coverage for the repair costs of the damaged backhoe under the insurance policy in question; and

(III) The trial court was in error in not finding Fireman’s Fund liable to Southeastern for attorney’s fees and penalties as per L.R.S. 22:658.

The only issue properly before this court is whether the trial court was correct in its determination that the claim against Fireman’s Fund was barred by a twelve-month prescriptive period which began to run when the insured discovered the occurrence which gave rise to the claim (as provided by Condition 16 of the Fireman’s Fund policy).

Condition 16 clearly, and concisely, states: “16. Suit. No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the Insured of the occurrence which gives rise to the claim, provided, however, that if by the laws of the State within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest limit of time permitted by the laws of such State.”

Southeastern does not argue the validity of the time limit for filing suit as set forth in Condition 16. Instead, Southeastern argues that the “occurrence which gives rise to the claim” would be a loss sustained by Southeastern and covered by the Fireman’s Fund policy in question. Thus, Southeastern concludes the claim on the policy arose only when it was sued by Clement and not any time earlier. We disagree.

The insurance policy at issue is a policy of property insurance, not a policy of liability insurance. What is covered by this policy is damage to the property, not the liability of those who might be held responsible for that damage. It is the damage to the property, the thing insured, which triggers the policy coverage. Once damage occurs, the policy becomes a debt immediately due from the insurer directly. The policy is not contingent liability for the monetary damage recoverable or not.

It is clear that the “occurrence which gives rise to the claim” is the event or fact of infliction of physical damage to the property and not the ascertainment of the quantum of monetary damage sustained by the owner.

Accordingly, the “occurrence” was the breakdown or failure of the backhoe to operate in April, 1979. Suit was not filed nor was the third-party demand made until May, 1981. Condition 16 would bar these suits and is not contrary to Louisiana Statutory law.

Therefore, for the above stated reasons, we affirm the decision of the trial court dismissing Fireman’s Fund pursuant to its peremptory exception of prescription and further assess appellant with all costs of this appeal.

AFFIRMED.

      . LSA-R.S. 22:629:
      “A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
      ... (3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.”


author: KLIEBERT, Judge.

text:
    BEE ENTERPRISES, INC. v. Evelyn DENNIS and Charles Dennis.
    No. 5-379.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.

      Craig R. Nelson, Hulse, Nelson & Wanek, Néw Orleans, for plaintiff-appellant.
    George B. Richard, Marrero, for defendant-appellee.
    Before KLIEBERT, GRISBAUM and DUFRESNE, JJ.
   KLIEBERT, Judge.

Bee Enterprises, Inc., plaintiff-appellant, sued their employee, Evelyn Dennis and her husband, Charles Dennis, for an alleged wrongful conversion of funds owned by Bee. The trial judge found Bee had failed to prove the conversion and hence dismissed the suit. Bee brought this devolutive appeal. On the appeal, Bee asserts two specifications of error: (1) the trial judge erred in finding Bee did not prove the conversion by a preponderance of the evidence and (2) in finding Bee had to prove either possession or conversion of credit card receipts in order to prove a wrongful conversion. We agree with the trial judge’s findings and hence affirm his judgment.

Bee is owned and operated by its sole stockholder, Ken Bee. It is involved in the gasoline retail business, operating three leased Shell self-service gasoline stations. Evelyn Dennis was hired on September 16, 1976 as a station attendant and eventually became the station manager at Bee’s Bara-taría Boulevard location. According to Bee, during the period October 1, 1979 through June 19, 1980, Mrs. Dennis wrongfully converted $8,700.51 of its funds and used some of the funds for the benefit of the community of acquets and gains existing between she and her husband.

At the trial, counsel for Bee contended Mrs. Dennis converted the cash to her own use and then overstated the credit card sales on the accounting records in order to cover the cash shortage. His effort was to prove the conversion by showing that under the accounting control system used by Bee, Dennis was the only party who could have manipulated the records in order to cover the cash shortage.

During the trial, Mr. Ken Bee testified at great length as to the station’s operations. The stations were open twenty-four hours a day with each attendant, including the manager, working an eight hour shift five days a week. Purchases of gasoline were paid for in cash, by Shell credit card or with what is commonly referred to as bank credit cards (i.e., VISA, Mastercharge). Each attendant prepared a “Shift Sheet” for the eight hour period worked. This “Shift Sheet” would reflect meter readings on the gasoline pumps showing the number of gallons pumped and the gross sales as of the beginning and end of the shifts. It also showed a breakdown between cash sales and credit card sales. In preparing the sheet, the attendant ending an eight hour period would verify the next attendant’s opening figures and accordingly, the new attendant would verify the closing figures of the preceding attendant. The station manager would prepare a shift sheet for the eight hour period she worked and additionally prepared a “Master Sheet” every twenty-four hours which would be a compilation of the figures recorded on her shift as well as of the other two shifts. The station manager’s duties included verifying the figures on the shift sheets as well as inventorying the credit and bank card receipts and the cash on hand. It additionally included physically counting the cash on hand and tabulating the cash receipts in order to complete the master sheet. The station manager also was to deposit the cash at a local bank every day. Deliveries of gasoline were made to the individual stations by Shell on a periodic basis (usually every three days). Upon delivery, payment was immediately made to the deliveryman. Whichever attendant was on duty at the time of delivery was authorized to make payment. This was accomplished by first, turning over credit and bank card receipts and second, with a check drawn on the already deposited cash for whatever balance was still due. The credit and bank card receipts were maintained at the station and not turned in with the “shift” and “master” sheets.

Mr. Ken Bee alleged and testified that Mrs. Dennis manipulated the figures on her “Shift Sheet” and “Master Sheet” by inflating the credit card and bank card sales recorded on her sheets and converting to her own use cash in an amount equal to the amount the credit and bank card sales were inflated.

The amount alleged to have been converted by Mrs. Dennis was computed by determining the total bank and credit card sales reported on the sheets for the period October 1, 1979 thru June, 1980 and deducting therefrom the total of the bank and credit card sales reported as having been used to purchase gasoline from Shell during the same time period. The difference as computed from the master sheets was $8,892.36 and according to Bee represented the credit card receipts which should have been on hand at the station as of June 22,1980. On a physical check, the actual value of the credit cards on hand at the station was $191.25. Therefore, Bee contends the difference, i.e., $8,700.51 was cash converted by Mrs. Dennis. The conclusion Dennis had converted the cash was buttressed with the following testimony elicited at trial. Mr. Bee testified he became suspicious when he noticed an unusually high amount of credit and bank card sales. To confirm his suspicions, Mr. Bee went out to the station shortly after Dennis had completed her shift. He made a physical count of the bank and credit card receipts on hand and found bank card receipts totalling $33.80 and Shell credit card receipts of $307.84. Contrary to company policy, Dennis had not as yet prepared her “shift sheet” for the shift. The next day, June 20, 1980, when Dennis turned in her “Shift Sheet”, it reported credit card receipts at the station of her shift as $133.80 and Shell credit card receipts as $449.84. Since he believed Dennis had inflated the inventory of credit card sales by $240.00, he concluded she had converted this amount and understated the cash sales by the same amount. He confronted her with evidence. Since she made no explanation, he terminated her employment.

The testimony of Mr. Richards, one of Mrs. Dennis’ co-workers was also submitted. He testified to an incident where he was verifying the shift sheets and found where Mrs. Dennis’ shift reflected a credit card receipt shortage of $40.00. She asked him to put up $40.00 in cash for her and she would return his funds in the morning. He did that for her and she in turn returned his money.

In a case such as this, Bee is required to prove his claim by the preponderance of the evidence. By preponderance of evidence is meant evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it, i.e., the evidence as a whole shows that the fact sought to be proved is more probable than not. Braud v. Kinchen, 310 So.2d 657 (La.App. 1st Cir.1975).

No direct evidence or testimony was presented by Bee to prove the conversion. Rather, it sought to prove its case by circumstantial evidence. When proof is made by circumstantial evidence, the evidence must be sufficient to exclude, with a fair amount of certainty, every other reasonable hypothesis but the one relied on. Braud v. Kinchen, supra.

Here there was evidence present and showing Mrs. Dennis worked only a five day week with the assistant manager acting in her capacity for the remaining two days. In one month, out of 31 master sheets, relied on by Bee to prove the cash shortage, nine were prepared by someone other than Mrs. Dennis and twenty-two were prepared by Mrs. Dennis. Further, the credit card receipts were kept in the office and any employee at the station during any twenty-four hour period had access to these receipts. There is one other reasonable hypothesis which would explain the missing credit card receipts. The cards could have been lost, destroyed or stolen by any number of people besides Mrs. Dennis and people other than Mrs. Dennis could have, under the accounting control system, used the same scheme as the one Mrs. Dennis is accused of using. See Young Oil Company of Louisiana v. Durbin, 412 So.2d 620 (La.App. 2nd Cir.1982) and Kaufman v. Gregory, 178 So.2d 300 (La.App. 4th Cir.1965). Counsel for Bee argues Mrs. Dennis is the one who utilized the scheme because she verified the “shift sheets” of the others. She did not, however, verify the master sheets or the shift sheets when the assistant manager was on duty which was at least twice a week.

We cannot say, therefore, that the trial judge erred in concluding Bee failed to prove its case. Accordingly, the judgment of the trial court is affirmed. Appellant to pay all costs of the appeal.

AFFIRMED.


text:
    ASHLEY ENTERPRISES, INC. v. ESPLANADE PLAZA CO., et al.
    No. 5-331.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1983.
    Rehearing Denied Feb. 17, 1983.

      Elsie B. Halford, Metairie, for plaintiffs-appellants.
    Ewell P. Walther, Jr., Kyle Schonekas, Stone, Pigman, Walther, Wittmann & Hutchinson, Dennis M. Ferrara, New Orleans, for defendants-appellees.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Ashley Enterprises, Inc., d/b/a “Reflections” (hereafter Reflections) brought suit against Esplanade Plaza Co., Inc. and its partners (hereafter collectively called Esplanade) and Buzz Around, Inc. (Buzz Around) for a permanent injunction, an eviction of Buzz Around, and damages allegedly arising out of the breach of the lease between Reflections and Esplanade, and/or breach of a stipulation “Pour au-trui” contained in the lease between Buzz Around and Esplanade. After a judge trial, the trial court dismissed Reflections’ suit, ordered all litigants to bear the cost of their own experts and assessed the charges ($4,900.00) of a court appointed expert on Reflections, the losing litigant. Reflections suspensively appeals this judgment with both Esplanade and Buzz Around answering the appeal. The principal issue involves an interpretation of the restricted competition covenant contained in the lease between Esplanade and Reflections and of the alleged stipulation “pour autrui” contained in the lease between Buzz Around and Esplanade. Secondary issues are the role of the court-appointed expert and the court’s taxing of the expert witness fees. We affirm the trial judge’s ruling on all issues.

We first consider the principal issue. On November 27,1978, Reflections entered into a lease agreement with Esplanade. According to this lease agreement, Reflections was to occupy 1560 square feet of a shopping center, yet to be constructed, owned by Esplanade in Jefferson Parish. Article 6 of the lease agreement provided:

USE OF LEASED PREMISES
SECTION 6.1. The Leased Premises shall be used and occupied by the Tenant solely for a decorating accessories and high quality gift items shop and for no other purpose. The Tenant shall at all times operate its business on the Leased Premises solely under the name Reflections! and shall identify the Shopping Center in all advertising of the business conducted there by the Tenant. The Tenant intends to use the premises for the sale at retail of a wide variety of accessories for interiors (including furniture, lamps, wall decorative and serving pieces) and other high quality gift articles). The Landlord may allow other tenants in the Shopping Center to sell one or more of the same items as the Tenant sells, but the Landlord agrees that it will not lease space in the Shopping Center to a Tenant whose business includes the sale at retail of a majority of the items that the Tenant offers for sale at the inception of the Lease. (Emphasis ours).

On August 23,1979, Buzz Around entered into a similar lease agreement with Esplanade. Article 6 of that lease provided:

SECTION 6.1. The Leased Premises shall be used and occupied by the Tenant solely for a Gifts and Greeting Cards Shop and for no other purpose. The Tenant shall at all times operate its business on the Leased Premises solely under the name Buzz Around.

Reflections opened its gift shop on or about July 19, 1979. Within six months of the opening, Buzz Around also opened for business. Thereafter, Ashley filed this suit seeking the eviction of Buzz Around and damages from Esplanade. Buzz Around filed an exception of no cause or right of action grounded in the lack of privity of contract between Reflections and Buzz Around. Thereafter, Reflections amended its petition contending it was the beneficiary of a stipulation pour autrui contained in an addendum to the lease between Esplanade and Buzz Around and, therefore, had a cause of action against Buzz Around despite the lack of privity of contract. The alleged stipulation pour autrui provided as follows:

“We are familiar with the premises adjacent to and on the Hullen Street side of those leased to us, that is, Bay Number 7, which is leased to Ashley Enterprises, Inc., which does business under the name, ‘Reflections’.
We confirm our understanding that the business conducted by us in Bay Number 5 will not include the sale of more than 20% of the items that Reflections offers for sale in its premises as of this time. This conforms to our original understanding and, to make the lease consistent therewith, the lease is hereby so amended....”

Plaintiffs theories of liability are these: (1) Esplanade knowingly breached' its agreement to restrict competition because it needed to fill its vacant bays to meet commitments to its mortgagee and, hence, is in bad faith and subject to the damages allowed by C.C. Article 1934(2); and (2) Buzz Around agreed not to compete with Reflections in that it would not offer for sale more than 20% of the items offered by Reflections’ opening inventory.

At the trial level and here, Reflections contends the true intent of the parties was to prohibit any other gift shop from competing with Reflections in the same shopping center. At the trial, Reflections sought to introduce parol evidence in an effort to support the contention. The trial judge disallowed such evidence, finding that the language of the restricted competition covenant was not ambiguous. Without deciding the true interest of the parties, we agree with the trial judge’s decision not to allow parol evidence. Parol evidence is generally held inadmissible to explain, vary, add to, or subtract from the terms of a written agreement. Louisiana Civil’ Code Article 2276. When the terms of the written contract are susceptible to more than one interpretation or where there is uncertainty or ambiguity as to the provisions of the written agreement, or where the intent of the parties cannot be ascertained, however, parol evidence may be admissible to clarify the ambiguities and to show the intentions of the parties. Such is not the case here. The language employed clearly states that other tenants may sell one or more of the items offered by “Reflections”, but may not sell more than a majority of such items sold by “Reflections” at the inception of the lease.

Despite the varying methods used by the experts to determine whether Buzz Around was selling more than a majority of the items being sold by Reflections we see no ambiguity which would warrant the introduction of parol evidence to determine the intent of the parties.

Reflections sought to prove Buzz Around was selling a majority of items sold by Reflections through the testimony of Dr. Victor Cook who qualified as an expert in the field of marketing and Mrs. Helene Walker who qualified as an expert in accounting. Dr. Cook testified that the two shops were indeed competing with each other but gave few details or specifics in rendering this decision. The majority of his testimony was concerned with the damages aspect of this case. In oral argument counsel for Reflections contends Dr. Cook’s function was to compute damages and not to determine whether Buzz Around sold a majority of the items being sold by Reflections.

Mrs. Walker’s testimony was to specifically determine whether there was a duplication of items sold. Using her own methods, she concluded that Buzz Around sold 74% of the same items offered by “Reflections”. She testified that her method of comparison utilized categorization of items, sometimes disregarding price or quality variances. Her categorization was based solely on her personal belief as to what should or could be considered a like item in the eyes of the consumer. Mrs. Walker admittedly had little marketing training.

Esplanade’s expert in marketing, Gordon Joseph, testified that there was not a majority of items of Reflections sold by Buzz Around. He felt that there was no damage to Reflections by Buzz Around’s presence in the shopping mall. Mr. Joseph went so far as to say that the two stores may compliment each other in that they both sold gifts but of diverse quality and price. Mr. Joseph concluded there was less than a majority duplication by listing items individually from invoices of both stores. Dr. Thomas O’Conner was submitted and qualified as an expert in marketing for Buzz Around. He also concluded there was no substantial competition between the two shops.

The court appointed as its expert Dr. Joseph Hair, chairman of the Department of Marketing for Louisiana State University. Dr. Hair concluded that Mrs. Walker’s comparison was imprecise. He felt that her method of categorization of items was not reliable enough to allow him to conclude there was a,substantial duplication of items. In conclusion, Dr. Hair felt that he could not accept Mrs. Walker’s findings.

Reflections contends the court’s expert functioned improperly and, therefore, his opinion was accorded too great a weight. The trial judge, in well written reasons for judgment, sought to restrict the role of Dr. Hair to the perimeters prescribed in the case of U.S. Oil of Louisiana Ltd. v. Louisiana Power, 350 So.2d 907 (La.App. 1st Cir. 1977), writ denied 351 So.2d 775 (1977). In this case, the court at page 909 said:

“The proper role of the court-appointed expert under LSA-C.C.P. article 192 is to provide the judge with facts and information necessary for a complete and just determination of the issues. It is not the function of that expert to decide or to judge the case, or to engage in any of the corollary functions thereof. Moreover, that expert, as any other expert, clearly should be subject to cross examination by the parties.”

The record reflects that Dr. Hair reviewed the lease in question and also the reports of the parties’ experts submitted prior to trial. He made an on-the-scene inspection of the shopping mall where Reflections and Buzz Around are located. He additionally was present for the trial in this matter in order to complete his function. Although some of his testimony may have gone beyond the role of an expert and into the role of the court, we find no impropriety in his actions or those of the trial judge that would reflect a misuse of the function of a court-appointed expert.

The issue here turns on the interpretation given of the words “majority of the items” found in the above quoted restricted competition covenant. In making such an interpretation, the jurisprudence uniformly holds that legal agreements have the effect of law between the parties and the courts may enforce them by giving effect to the true intent of the parties. Union Bank v. Roy, 248 La. 801, 182 So.2d 319 (1966); Texaco, Inc. v. Vermilion Parish School Bd., 244 La. 408, 152 So.2d 541 (1963).

A mere reading of the provision in question here shows the intent of the parties was to confect a provision which would restrict the competition to Reflections. It does not prohibit a lease to another tenant doing business as a gift shop. However, it does prohibit a lease to another tenant who will sell a majority of the same items as that sold by Reflections. Thus, the appropriate analysis must identify items that are similar in a marketing sense, not just a compilation of the items appearing in each store’s inventory. All of the marketing experts testifying here agree price and quality are integral factors in deciding whether consumers will substitute one item for another in the course of shopping. If the consumer will substitute one for the other, then the items are competitive. Thus, to determine competitive items under this marketing concept, for a “lamp” to be competitive with another lamp, it must be of comparable quality and value.

In reaching the conclusion that Buzz Around was not selling a majority of the items that Reflections sold, all three marketing experts were in agreement. Mrs. Walker, on the other hand, who had little or no marketing experience, utilized a categorization of items which, for the most part, disregarded price or quality variances. There is ample evidence and reason, therefore, for the trial judge to have concluded as a matter of fact that Buzz Around was not selling a majority of the items being sold by Reflections. We cannot say, therefore, that he committed manifest error in his fact findings or in his legal conclusions.

Additionally, we point out that in order to claim the benefit of a stipulation “pour autrui” or third party beneficiary contract, the party claiming the benefit must show an intent to confer benefits upon him. Louisiana and Southern Life Insurance v. New Orleans Steamship Association, et al, 384 So.2d 594 (La.App. 4th Cir.1980). Here the evidence fails to show any such intention.

The answer to the appeal filed by Buzz Around and Esplanade reasserted claims made against each other prior to the trial in the event either was found liable. By affirming the trial judge’s dismissal of Reflections’ suit, their claims are of no moment; nor is it necessary for us to consider the arguments made on the damage awards.

The remaining issue on appeal is the expert fees involved. The trial judge had each party deposit with the court an amount which he felt would cover the fees of the court-appointed expert. During the trial, the trial judge directed the parties to put up additional funds for that purpose. After the conclusion of the trial, the money was released to the expert. The judgment of the lower court held Reflections liable for the cost of the expert. We find no error in this regard.

Both Esplanade and Buzz Around allege the trial court erred in not assessing the fees of their experts as costs of the trial to be borne by Reflections, citing LSA-R.S. 13:3666. We note, however, that La.C.C.P. Article 1920 gives the trial judge discretion in regard to taxing costs of a proceeding. Thus, it is at the discretion of the trial judge to decide how he will allot the taxable costs. Usually the costs are taxed to the losing party, however, it is not a mandatory requirement.

Accordingly, the judgment of the trial court is affirmed. Reflections to bear all costs of the appeal.

AFFIRMED.


text:
    STATE of Louisiana v. Godclive MOSES & David Punch.
    No. K 0311.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1983.
    Harry F. Conniek, Dist. Atty., Suzanne Jones, Asst. Dist. Atty., New Orleans, for relator.
    William L. Dehner, Gretna, for respondents.
    Before BARRY, BYRNES and CIAC-CIO, JJ.
   On the morning of defendants’ trial for violation of LSA-R.S. 40:966 the State filed its Answers to defendants’ Bill of Particulars and stated “No” to the following question:

Does the State have in its possession, custody, control or knowledge any results or reports or copies thereof of physical or mental examination and of scientific tests or experiments made in connection with or material to this case which the District Attorney intends for use at trial, or which is exculpatory in nature? If so, defendant moves to require the State to allow defendant to inspect and copy, photograph or otherwise reproduce the results or reports of examinations and tests.

After a preliminary hearing the Court found probable cause and the defendants waived their rights to a jury trial. Following testimony from the first witness, the State offered to file into evidence a crime lab report and the defense objected on the basis of the State’s negative answer to the above question. The Trial Judge sustained the objection and refused to allow the report into evidence. The State then moved to amend its Answer to the Bill of Particulars, the defense again objected, and the Trial Judge denied the attempt to amend.

The State requested a stay of the trial which was granted and this writ was filed. Based on the record we ordered the defendants to respond to the following:

How the defendants were prejudiced here where the State filed its Answers to the Bill of Particulars immediately prior to trial;
If the State acted in bad faith by answering “No” to Bill of Particular number V; If defendants’ counsel was asked to stipulate to the crime lab report prior to trial; How defendants would be prejudiced if the State was allowed to amend its Answer to the Bill of Particulars.

Defendants failed to respond to the show cause order.

Our determination is whether the trial court abused its discretion in applying the provisions of C.Cr.P. Art. 729.5 A which provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.

We note the State’s Answers to the Bill of Particulars were filed immediately prior to trial. The State alleges, and the defendants do not deny, that before trial defense counsel was requested to stipulate to the crime lab report. If the State had admitted possession of the lab report and given a copy to the defendants just before trial, defendants would not have claimed prejudice. The fact that the State offered to stipulate to the report, minutes after supplying its Answers to the Bill of Particulars, certainly made known that a crime lab report existed. It also demonstrates the State acted in good faith and there was no attempt to withhold crucial information.

We feel the defendants have a burden to show they were prejudiced by what appears to be a simple typographical error in the State’s Answers. If the State had been allowed to amend its Answers the defendants’ trial strategy would not have been altered. The defendants were well aware of the charges against them and the State’s routine proof of the type of narcotic substance (identified in laboratory reports) is pro forma in criminal trials and anticipated by defense counsel.

The Trial Judge’s ruling the lab report inadmissible would effectively cause the dismissal of this case. Admittedly, prohibiting the introduction into evidence of subject matter not disclosed is within the sanctions of Article 729.5 A, supra. However, there is no evidence the State acted in bad faith. Further, the defendants would not have been prejudiced by receiving the crime lab report following the first witness’s testimony as opposed to immediately prior to trial. We are satisfied the Trial Judge abused his discretion in failing to allow the State to amend its Answer to V of defendants’ Bill of Particulars.

ACCORDINGLY, the writ is made peremptory. The State is allowed to amend its Answer to the defendants’ Bill of Particulars number V and is directed to provide a copy of the crime lab report to defendants without delay. The stay order issued November 24,1982 as to further proceedings is set aside and trial of this matter is to proceed accordingly.


author: WARD, Judge.

text:
    Laurence I. BARRAS v. Rose Ruffo, Wife of Laurence I. BARRAS.
    Nos. 13303 c/w 13304.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1983.

      Philip R. Riegel, Jr., New Orleans, for plaintiff-appellee.
    Cynthia A. Clarkson, Robert P. Chatelain, Metairie, for defendant-appellant.
    Before GULOTTA, WARD and CIAC-CIO, JJ.
   WARD, Judge.

This is an appeal from a judgment granting Rose Ruffo Barras a separation from bed and board on the grounds of abandonment by her husband, Lawrence Barras. Both husband and wife filed suit for separation; her suit alleged abandonment and cruelty by physical abuse; his alleged constructive abandonment and cruelty. Mr. Barras also answered his wife’s suit, alleging that there was cause for striking her and denying abandonment. The suits were consolidated and, after trial on the merits, the Trial Court dismissed Mr. Barras’ suit, rendered judgment for Mrs. Barras, and ordered Mr. Barras to pay $150.00 per month alimony. Mr. Barras has appealed, contending that the judgment of separation in favor of his wife should be reversed because she failed to prove the essential elements of abandonment. He argues that the lower court should have found mutual fault or, alternatively, granted him the separation on the grounds of constructive abandonment or cruelty.

Mr. and Mrs. Barras were married June 1, 1974, and immediately established their matrimonial domicile in the home of Mrs. Barras. Both had previously been married. At the time of their marriage, he was 64 years old, and a widower, and she was only several years younger and a widow. Each had adult children from their previous marriage. Apparently, the couple experienced marital difficulties prior to the incidents giving rise to this litigation. Mrs. Barras had complained that Mr. Barras spent too much time participating in Knights of Columbus activities. Additionally, although she did not allege adultery, she complained that Mr. Barras spent too much time at the home of a widow he knew from church. The particular incidents which prompted these suits began on Saturday, June 21, 1980, when, as Mr. Barras was approaching the widow’s front door, Mrs. Barras drove up and asked him why he was there. Mr. Barras became angry because he was questioned, walked over to her car and squeezed her arm, causing a bruise. Nothing more came of this, and they continued to live together as husband and wife.

Another incident occurred at home in the family garage one week later. During their marriage, Mr. Barras had worked as a painter, and a major source of dissension between the couple was the storage of his painting supplies in the garage. On Saturday, June 28,1980, Mrs. Barras provoked an argument over the paint in the garage. Mr. Barras alleges she threw a can of paint; Mrs. Barras contends that she merely moved it and placed it by the door of the garage. The argument escalated into a fight, during which Mrs. Barras grabbed at her husband’s genitals, threatened him with a broomstick and ripped his shirt during the scuffle, and Mr. Barras slapped Mrs. Barras in the face. Mrs. Barras shouted for the police and Mr. Barras left, fearing arrest. After leaving home, Mr. Barras went about his normal Saturday activities, stopping by the church and then going on to work. While he was gone, Mrs. Barras locked him out and put his clothes in the alley. When he returned home, Mr. Barras found that he could not enter, and, after finding his clothes in the alley, he left. He spent several days with his children before obtaining a furnished apartment for himself. Several weeks later, Mrs. Barras telephoned him and told him to remove the remainder of his belongings.

Because we do not believe that these facts prove abandonment by either Mr. or Mrs. Barras, we hold that the Trial Court erred when it rendered a judgment of separation to Mrs. Barras on the grounds of abandonment. La.C.C. Art. 143 specifies three essential elements of abandonment: (1) Withdrawal from the common dwelling; (2) Absence of lawful cause for withdrawal; and (3) Refusal of the spouse who withdrew to return to live with the other. The party seeking a separation on grounds of abandonment must affirmatively prove all three elements. Bergeron v. Bergeron, 372 So.2d 731 (La.App. 4th Cir.1979); Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir.1976).

In the instant case, Mrs. Barras has not proven either that Mr. Barras withdrew from the common dwelling or that he refused to return to live with her. Abandonment must be shown to be voluntary. Bergeron v. Bergeron, supra. A hasty or impulsive withdrawal by one party from the common dwelling does not in itself furnish grounds for a separation based on abandonment. There must be a degree of permanency in the decision to withdraw, evidenced by a constant refusal on the part of the withdrawing spouse to return to the common dwelling. Sciortino v. Sciortino, 188 So.2d 224 (La.App. 4th Cir.1966), cert. denied 249 La. 726,190 So.2d 237, 27 L.L.R. 423, 425 (1966); Bergeron v. Bergeron, supra; Belou v. Belou, 231 So.2d 580 (La.App. 4th Cir.1970). The record clearly shows that Mrs. Barras locked Mr. Barras out of the family home and that Mr. Barras attempted to return to the common dwelling several hours after the fight in the garage. Although Mrs. Barras did not have to show that she initiated an attempt for reconciliation, it was necessary for her to show that her husband’s remaining away was by his choice and without her consent. Bergeron v. Bergeron, supra. Mrs. Barras did not prove that her husband remained away by his choice and without her consent. Therefore, we reverse the judgment of the Trial Court granting Mrs. Barras a separation on the grounds of abandonment.

On the other hand, we do not believe that the evidence shows that Mrs. Barras constructively abandoned Mr. Barras, as he contends. While Mrs. Barras locked him out and put his clothes and other personal belongings in the alley, and although such conduct has been held to be abandonment or cruelty, Meche v. Meche, 410 So.2d 1174 (La.App. 3d Cir.1982), in this instance, we believe there was sufficient cause and provocation to justify Mrs. Barras’ refusal to permit her husband to return to the family home, which was her separate property. Thus, Mrs. Barras’ fault does not constitute constructive abandonment.

Rather we believe that Mr. and Mrs. Barras were mutually at fault in causing the separation because of their cruel treatment of each other. Each case must stand on its own facts, and, in considering whether there was cruelty, we must consider the parties, their age, their sensitivities, as well as the other facts shown in the record. Each physically abused the other during the fight in the garage; Mrs. Barras provoked the fight and Mr. Barras overreacted and slapped his wife. She retaliated and her conduct was inexcusable.

For these reasons, we hold that both Mr. and Mrs. Barras were at fault. Mutual fault is a legal cause for separation from bed and board. La.C.C. Art. 141. Therefore, we reverse and amend the judgment of the District Court to grant a judgment of separation from bed and board to each. All costs of trial and this appeal are to be shared equally.

REVERSED AND AMENDED.


author: G. WILLIAM SWIFT, Jr., Judge Pro Tern.

text:
    STATE ex rel., Ronald R. RYALL v. STATE of Louisiana.
    No. K 0483.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 1983.

      Ronald R. Ryall, in pro. per.
    Harry Connick, Dist. Atty., Delores V. Mason Smith, Asst. Dist. Atty., New Orleans, for respondent.
    Before WARD, WILLIAMS, JJ., and SWIFT, Jr., Judge Pro Tempore.
   G. WILLIAM SWIFT, Jr., Judge Pro Tern.

Petitioner Ronald R. Ryall has now filed a pleading with this court entitled “Motion for a Bill of Information.” It is actually a petition for post-conviction relief (see La.C. Cr.P. 924, et seq.) and tracks his earlier application which was received in this court on November 30, 1982. That application was denied on December 1, 1982, reserving petitioner’s rights to seek such relief in the district court. It has come to our attention that on January 11, 1983, the trial court denied all requests for post-conviction relief filed by the relator.

All of relator’s present complaints can be reduced to a request that this court vacate his guilty plea which was entered on July 13, 1982, after full “Boykinzation” by the trial judge.

The “Boykin” form executed by the defendant establishes that the required elements of that case were acknowledged and initialed by the defendant. Also, on the back of this form, the defendant, his counsel and the assistant district attorney executed a document unequivocally spelling out the plea agreement and sentence.

While relator may now regret entering the plea bargain, his subsequent allegations that his plea was coerced and illegally induced are obviously invalid since the defendant knew exactly what he was bargaining for. Undoubtedly, the same dissatisfaction has given rise to his allegation of ineffective assistance of counsel, which is not supported by any specific allegations of fact indicating that counsel did not act in the best interest of the petitioner. Further, nothing in the docket master reflects that counsel was negligent in attending to the defense of his client.

Accordingly, the writ is denied.

WRIT DENIED.