author: JASPER E. JONES, Judge. FRED W. JONES, Jr., Judge,

text:
    Carroll ELLZEY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al. Carroll ELLZEY v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al.
    Nos. 14377, 14381.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1980.
    En Banc. Rehearing Denied Sept. 29,1980.

      Smith, Ford & Clark, Leesville, for plaintiff-respondent.
    Mayer, Smith & Roberts, Shreveport, for defendant-respondent.
    Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for defendant-respondent.
    Before JASPER E. JONES, HALL and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Defendants, Employers Mutual Liability Insurance Co. of Wisconsin, Panola-Harri-son Electric Cooperative, Inc., Benjamin K. Taylor and Aetna Casualty & Surety Co., applied to this court for the exercise of our supervisory jurisdiction complaining of judgments of the trial court vacating two earlier orders dismissing plaintiff’s suit against them as abandoned. The ex parte dismissals were obtained pursuant to defendants’ Motion to Dismiss for, lack of prosecution wherein defendants asserted five years had elapsed without any steps having been taken in the prosecution or defense of this suit. We granted writs to review the judgments of the trial court vacating the judgments of dismissal.

Plaintiff, Carroll Ellzey, filed this tort action against defendants on June 10, 1974. The last action taken in the case of record was the December 2, 1974, answer of defendants Panola-Harrison and Employers. On December 7, 1979, and December 18, 1979, defendants Panola-Harrison and Employers, and defendants Taylor and Aetna respectively moved to dismiss the case against them on the grounds that the action had been abandoned under provisions of LSA-C.C.P. art. 561 because five years had elapsed since the parties had taken any action in the prosecution or defense of the case. The ex parte motions were granted.

Plaintiff then filed a rule to show cause why the orders of dismissal should not be set aside for the reason that plaintiff had taken steps in the prosecution of the case within the preceding five years by seeking to have the case set for trial. The trial judge agreed with plaintiff and found the action had not been abandoned. This determination was based upon a stipulation entered into by the parties which established the facts set forth in the following paragraph.

On January 12, 1978, plaintiff’s attorney, a resident of Leesville, wrote to the clerk of court for the First Judicial District and requested that plaintiff’s case be fixed for trial as a civil jury case. On September 5, 1979, plaintiff’s attorney sent another letter to the clerk of court and requested that the case be fixed for a jury trial during the first week of January, 1980. The clerk of court received these letters (this is the import of the totality of the stipulation though this fact is not clearly stated). While local attorneys used a form provided by the clerk to request trial dates, the writing of a letter to the clerk of court was the accepted procedure in the First Judicial District Court by which out-of-town counsel requested a case to be set for trial. It is also part of the normal procedure for the clerk of court not to file any such letter requesting a trial date into the record. No order had been signed in the case authorizing a jury trial and no jury bond had been filed by plaintiff. Under these circumstances because the case was not ready for trial the practice of the clerk was to take no action upon a request for a jury trial date. The plaintiff’s letters requesting a trial date were not acted upon by the clerk of court nor were they filed in the record.

Dismissal of a suit for abandonment is provided for in LSA-C.C.P. art. 561:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year.”

In Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975), the court interpreted the requirement of LSA-C.C.P. art. 561 as follows:

“By its clear and unambiguous wording, article 561 requires three things of plaintiff: (1) that he take some ‘step’ in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last ‘step’ taken by either party.” Id. at 310.

Melancon defines steps in the prosecution or defense as follows:

“The traditional definition accorded to the phrase ‘steps in [the] prosecution or defense’ of a suit requires the action to be formal, before the court, and intended to hasten judgment.” Id. at 312.

The filing of a motion to fix a case for trial is a step in the prosecution of the action within the contemplation of LSA-C. C.P. art. 561. Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2d Cir. 1973); Crabtree v. Reed, 224 So.2d 64 (La. App. 3d Cir. 1969); Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4th Cir. 1976); Murphy v. Hurdle Planting & Livestock Co., Inc., 364 So.2d 167 (La.App. 1st Cir. 1978).

The issue is whether the letters of plaintiff’s attorney to the clerk of court, pursuant to the First Judicial District’s rules and practices, constituted a step in the prosecution such as would preclude a determination of abandonment under LSA-C.C.P. art. 561, even though the letters were not placed in the suit record.

In Kanuk, supra, before the five year period had elapsed, the plaintiffs had filed an unsigned and therefore technically defective motion to fix the case for trial on the merits. The defendants, contending that this unsigned motion to fix for trial did not constitute a step in the prosecution as required by LSA-C.C.P. art. 561, moved that plaintiffs’ action be declared abandoned. The trial court agreed with defendants and dismissed plaintiffs’ action, but the Fourth Circuit reversed on the grounds that such a defective motion, although technically invalid, was nevertheless sufficient to show plaintiffs’ intent to continue their suit and enough to constitute a step toward moving the suit to judgment. The court stated at p. 758:

“The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff’s inaction during a legislatively ordained period had clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. The filing of the technically defective motion in this case was a step toward moving the suit to judgment and militated against any intention to abandon the action.”

In Murphy, supra, the lower court had interpreted plaintiff’s properly filed and time-stamped motion to fix for trial as not being in compliance with the local court rules because it had not been formally submitted to the judge for his consideration and therefore had dismissed plaintiff’s suit as abandoned. The First Circuit found the lower court had misinterpreted the rules and held that a properly filed motion to fix for trial is “transmitted to the court” as mandated by the local rules. The court of appeal then reversed the judgment finding plaintiff’s suit abandoned.

In Evergreen, supra, this court held that an oral motion in open court to set a case for trial is a step in the prosecution which will preclude a dismissal for abandonment and reversed the trial court’s determination that the action had been abandoned.

In Crabtree, supra, the court held a motion in open court to place a case on the docket is a step in the prosecution and reversed a trial court’s decision of abandonment. The fact that the case could not have been set pursuant to local rules until a motion had been filed and fee paid to remove it from the dead docket did not preclude the oral motion from being construed as a step in the prosecution of the suit.

Defendants concede in brief that a formal motion to fix a case for trial properly filed by the clerk of court constitutes a step in the prosecution of the case under the provisions of LSA-C.C.P. art. 561. They contend that a letter written to the clerk seeking a trial date not filed by the clerk in the record is not a step in the prosecution of the suit. Defendants assert that the supreme court decisions of Sliman v. Araguel, 196 La. 859, 200 So. 280 (La. 1941) and Melancon, supra, require that a document requesting a trial date be placed in the court records before it can be considered as a step in the prosecution of the suit. In Araguel, supra, which was a Pre-Code of Civil Procedure case, the defendant sought dismissal on the grounds that it had been abandoned under the provisions of LSA-C.C. art. 3519 which then provided:

“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

The record reflected that more than five years had elapsed since any action had been taken by any party to the suit. At a hearing on the issue of whether or not the case had been abandoned evidence was adduced which established that during the period following the last court record of any action in the case, plaintiff’s and defendants’ attorneys had been actively involved in an attempt to prepare a stipulation to be used in the trial of the case in lieu of the testimony of a witness. There had also been correspondence between these attorneys.

This opinion reflects that the plaintiff was attempting to assert that these out-of-court activities between the attorneys representing the parties to the litigation constituted steps in the prosecution of the suit so as to preclude an adjudication of abandonment under the provisions of LSA-C.C. art. 3519. The court rejected plaintiff’s contention for the reason that the activities relied upon failed to constitute a formal move before the court intending to hasten judgment, the court there stating:

“A situation arising outside the record cannot be considered as a step in the prosecution of the suit.” Araguel, supra, 200 So. at p. 281.

In Melancon, supra, the court record established that the last action in the case had been defendant’s motion for a new trial, which had occurred more than five years prior to defendant’s motion to dismiss as abandoned. Plaintiff relied upon his prosecution of a companion suit in federal court during the five year period and an out-of-court agreement by defense counsel to stay the state court proceedings while the federal suit was being litigated as steps in the prosecution of the state court case to preclude an abandonment adjudication under-time provisions of LSA-C.C.P. art. 561. The supreme court rejected plaintiff’s contention that the federal court action was a step in the prosecution of the case for the reason that it was not an action taken in the trial court as required by the clear and unambiguous language of LSA-C.C.P. art. 561. The supreme court rejected plaintiff’s contention that defense counsel’s out-of-court agreement to stay the court proceedings was a waiver of the right to plead abandonment based upon a historical review of the provisions of LSA-C.C. art. 3519 and LSA-C.C.P. art. 561, the court concluding that one of the purposes of the provision in LSA-C.C.P. art. 561 “to take any step in its prosecution or defense” was to limit the earlier jurisprudential rules on waiver “to those instances where defendant had taken some formal step in the defense of the suit within the five-year period of plaintiff’s inaction.” The court in Melancon, supra, stated:

“. . any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the court record.” Id. at 312.

While Araguel and Melancon, supra, each requires that steps in the prosecution of the action be reflected in the court record within the five year period under consideration in order to preclude an adjudication of abandonment neither of these cases is applicable to the facts of the case here presented. They are distinguishable because in neither of them was there any action taken before the court that could be construed as a step in the prosecution of the action. In neither of them was the court confronted with the contention that steps taken in the court but not placed in the record by the clerk constituted a step in the prosecution of the case.

Plaintiff here during the five year period under consideration delivered to the clerk of court two letters containing a request for a trial date. While these trial date requests were not in the form of a formal pleading entitled “Motion to Set For Trial” they met the requirements of the rules and practices of the First Judicial District Court and under these circumstances the significance of the requests for trial date and the form on which they were submitted are entitled to the same consideration as a formal pleading prepared for the purpose of obtaining a trial date.

Having reached this conclusion the issue presented is whether the clerk of court’s failure to endorse “Filed” on the two letters received and place them in the suit record shall preclude them from being construed as steps in the prosecution of the action. LSA-C.C.P. art. 253 provides:

“All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law.”

The clerk of court of the First Judicial District upon receipt of the two letters requesting trial dates should have endorsed thereon the fact and date of filing and retained possession of them and placed them in the record, and he failed to do this. Had he done so these steps in the prosecution of the action would have been a matter of record and defendants herein would have been unable to have obtained their ex parte orders of dismissal.

In the decision of Cupples v. Walden, 124 So.2d 613 (La.App.3d Cir. 1960), a Pre-Code of Civil Procedure case, the defendant asserted that the delivery of a petition in a tort action to the clerk of court on the last day before prescription ran did not interrupt prescription because it was not formally marked “filed” and docketed until the following day. The statute there being construed was LSA-R.S. 9:5801 which provided as follows:

“Filing of suit interrupts prescription-The filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.” Cupples at 613.

The court concluded that the delivery of the suit to the clerk met the requirements of the statute and interrupted prescription even though the petition was not formally filed and docketed by the clerk until the following day at which time prescription would have run. The court made the following statement:

“The Court is of the opinion that the filing of the suit under provisions of LSA-R.S. 9:5801 means that the depositing of a suit with the clerk or one of his deputies is the actual filing of a suit under said provisions of law, for if it were otherwise, the litigant could deposit a suit with the clerk of court and the clerk of court could defeat the right of said litigant by not docketing said suit and marking it ‘filed’ for several days after he had received same.” Cupples, supra, at p. 614.

In the decision of Roby v. Leonard, 209 So.2d 182 (La.App. 1st Cir. 1968), the court concluded that an amended petition designed to comply with a court order rendered following trial of an exception of vagueness was timely filed even though the clerk upon receipt of the petition refused to file it and returned it to plaintiff. The court concluded that delivery of the petition to the clerk even though the clerk failed to file and retain it constituted “filed” under LSA-C.C.P. art. 253 and made the following statement:

“Consequently, we are of the opinion that the plaintiff did file an amending petition prior to the motion for the show cause order. Assuming for the sake of argument that an attorney for a petitioner had delivered a petition in a tort case to the clerk of court for filing on the last day before prescription and the clerk either failed or refused to stamp same ‘Filed’, would you say then that the petition has or has not been filed timely? We are of the opinion that the petition under those circumstances would be considered filed, just like in the case at bar.” Id. at 184.

In the supreme court decision of Lambert v. Kelley, 264 La. 1, 270 So.2d 532 (1972), a motion for a new trial which was timely delivered to the clerk of court but which was not formally marked ' “Filed” and placed in the record until the following day when the delays for filing a motion for new trial had expired was held to have been timely filed. The party who filed the motion was permitted to establish by extrinsic evidence the date on which the motion was filed. The court there said 270 So.2d at page 535:

“Marking the document or pleading ‘filed’ and designating the date is evidence of the act of filing, it is not the act of filing itself. The act of depositing the document or pleading is the filing.”

We conclude that the plaintiff’s delivery of the letters requesting a trial date to the clerk of court constituted a filing of them under the provisions of LSA-C.C.P. art. 253. This was a step taken before the trial court in the prosecution of the action under LSA-C.C.P. art. 561 which should have been placed in the record by the clerk of court because of the specific requirement contained in LSA-C.C.P. art. 253. The failure of the clerk to comply with his responsibility cannot detract from the actions of the plaintiff establishing that he had not abandoned the prosecution of his case. The plaintiff was entitled to establish his action before the court by extrinsic evidence and this was accomplished by the stipulation between the parties referred to earlier in this opinion.

The Fourth Circuit case of Coastal Erection Co., Inc. v. Milan Engineering• Co., 305 So.2d 713 (La.App. 4th Cir. 1974), held that a motion to fix a case for trial delivered to the clerk of court’s office and retained in the suit record but not marked “Filed” because of the plaintiff’s failure to pay past due court costs did not constitute a step in the prosecution of the action. This case is contra to the rationale of Cupples, Roby and Lambert, supra. It has the effect of denying plaintiff the adjudication that his request for a trial date is a step in the prosecution of his suit as mandated by Evergreen, Crabtree, Kanuk and Murphy, supra. For these reasons we decline to follow Coastal, supra.

Defendant makes an additional argument that because there had been no bond posted for jury costs and order signed authorizing the jury trial, that plaintiff’s letters seeking to set his case for trial could not possibly have been acted on by the clerk and for this reason were not a step in the prosecution of the action. We find this contention without merit because the plaintiff could have at any time supplied the bond and secured the order authorizing the jury trial. His failure to have complied with these requirements prior to the delivery of his trial date requests do not prevent his actions from being formal steps taken in court seeking to hasten his suit to judgment. See Crabtree, supra, wherein an oral motion to fix for trial was construed a step in the prosecution of the action even though it was made at a time when the case was on the dead docket and could not have been set until it was removed from the dead docket and placed on the active docket as required by local court rules.

For the reasons assigned we conclude that the trial court judgment vacating the orders of dismissal was correct. Let the alternative writs of certiorari, prohibition and mandamus heretofore issued be recalled.

FRED W. JONES, Jr., Judge,

dissenting.

Because of the confusion that had arisen over what constituted voluntary and intentional abandonment of a lawsuit, La.C.C. Art. 3519 was amended in 1898 to add the following provision:

“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

The language of this codal article clearly expressed a legislative intent that suits should not be allowed to linger indefinitely.

The Louisiana Supreme Court in the case of Sliman v. Araguel, 196 La. 859, 200 So. 280 (1941) had occasion to interpret the phrase “step in the prosecution of a suit,” and held:

“The ‘step’ in the prosecution requires a formal move before the court intended to hasten judgment. A situation arising outside the record cannot be considered as a step taken in the prosecution of the suit. A step in the prosecution of a suit means something done in court towards the progress of the suit in court.” Id. 200 So. at p. 281.

Article 3519 was further amended in 1960 to transfer its procedural rules to La.C.C.P. Art. 561.

Although the factual circumstances have varied, appellate decisions construing Article 561 have generally considered whether some specific action constituted a “step in the prosecution” of a lawsuit. Almost without exception those cases have adhered to the holding of Sliman that a “step in the prosecution” must be a formal action before the court toward the progress of the suit which is a matter of record in the litigation proceedings. The consistent refusal to consider actions taken outside the record reflected a desire to implement the legislative goal of eliminating those uncertainties engendered for the opposing party by informal actions.

The Sliman ruling that steps in the prosecution or defense of a suit require “the action to be formal, before the court, and intended to hasten judgment” was reaf-

firmed by the Louisiana Supreme Court in Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975) with this comment:

“The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. The determination that a claim is not being seriously pursued, which results in dismissal of the suit, must be certain; hence, any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the record, (emphasis added) In this way, examination of the record will reveal the status of the litigation with certainty and without resort to extrinsic evidence. Consonant with this, article 561 also provides that the order of dismissal for abandonment shall issue on ex parte motion of any party or other interested person; accordingly, a contradictory hearing of extrinsic evidence is unnecessary.” Id. at p. 312.

Whether the fixing of a case for trial constitutes a “step in the prosecution” of a suit has been considered in a number of cases. That question was answered in the affirmative in the following:

Crabtree v. Reed, 224 So.2d 64 (La.App. 3rd Cir. 1969)-plaintiff’s attorney appeared in open court and moved that the case be fixed for trial.
Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2nd Cir. 1973)-plaintiff’s attorney appeared in open court and moved that case be fixed for trial.
Kanuk v. Pohlmann, 338 So.2d 757 (La. App. 4th Cir. 1976)-motion filed in record to have case fixed for trial, though pleading not signed by mover’s attorney. Murphy v. Hurdle Planting & Livestock Co., 364 So.2d 167 (La.App. 1st Cir. 1978)-motion to fix case for trial filed in the suit record.

On the other hand, in Coastal Erection Co., Inc. v. Milan Engineering Co., 305 So.2d 713 (La.App. 4th Cir. 1974), plaintiffs efforts to fix a case for trial were not deemed a “step in the prosecution” of his suit. There, the plaintiffs attorney wrote to the Clerk of Court asking that his case be fixed for trial. The clerk replied that a formal motion to fix the matter for trial would have to be prepared and filed. This pleading was subsequently received in the clerk’s office and placed in the suit record but was not formally filed nor submitted to the judge for his signature. In holding that the actions of plaintiff’s attorney were not “steps in the prosecution” of the suit, the court stated:

“If plaintiff has it within his power to take some action to further his suit to a final judgment, no neglect or fault of a court official, nor misapprehension of fact on his part, will justify his failure to take steps in the prosecution of his suit for more than five years. * * *
“The convenience and general dependability of the mails and the usual cooperative efforts of the personnel in the office of the various Clerks of Court may beckon the busy attorney to rely entirely upon them. Yet, the final responsibility for seeing to it that his pleadings are actually filed rests ultimately and, indeed, exclusively, with the attorney. Even when he may be understandably and unintentionally diverted from this responsibility, the obligation nevertheless relentlessly exists.” Id. at p. 715.

The plaintiff in Le Det v. Firemen’s Insurance Co. of Newark, N. J., 327 So.2d 645 (La.App. 4th Cir. 1976), filed a motion to fix his case for trial but because of a clerical error there was no trial fixing. Finding that this action did not constitute a “step in the prosecution,” the court commented:

“In our view the failure of the deputy clerk of court to process this signed order is not a circumstance beyond the control of the litigant that would interrupt the tolling of the five-year period for statutory abandonment prescribed in C.C.P. art. 561. In other words, there were available means to the plaintiff whereby he could have, within the five-year period, furthered the prosecution of his claim.” Id. at p. 646.

In the case at bar the majority concludes that plaintiff’s delivery of letters requesting a trial date to the clerk of court constituted a filing of those letters under La.C. C.P. Art. 253 and that this was a “step in the prosecution” under La.C.C.P. Art. 561 even though the letters were not actually filed in the record.

It should be noted, first, that the cases applying Article 253 cited in the majority opinion all deal with pleadings which are routinely filed in the suit record, not with letters.

Second, since no order for a jury trial had been signed and, consequently, no bond posted, this case was obviously not in a posture for trial fixing. As a matter of fact, La.R.S. 13:3050 specifically provides that “no jury shall be ordered in any civil ease unless the bond is given.”

Finally, the thrust of the majority opinion is to place the full onus on clerks of court to encumber records with all kinds of miscellaneous correspondence from attorneys and, at the same time, to absolve attorneys from their responsibility to properly hasten suits to judgment. The end result of this ruling will add to the interminable delays that now plague trial courts and congest their dockets. Consequently, the right of all litigants, whether plaintiff or defendant, to an expeditious disposition of litigation will be further frustrated and subverted.

Concern that technical carelessness not bar adjudication on the merits reflects sound legal policy and is a commendable attitude. However, opposed to that consideration in this instance is the weightier policy (formally expressed by enactment in the code) that there be certainty in determining when suits have been abandoned.

The impact of the majority opinion is that we return to the uncertainty of the pre-1898 period, negating the spirit of the codal provision for an ex parte order. Indeed, in each case the moving party will have to rule his opponent into court to give him the opportunity to demonstrate that some action taken outside the record constituted a step in the prosecution of the suit. This is a reversal of the jurisprudential approach to this particular subject for the past decades and appears clearly to contradict the consistent holdings of the Louisiana Supreme Court.

For these reasons I respectfully dissent, would make the rule absolute, reverse the ruling of the trial court, and dismiss plaintiff’s suit pursuant to the provisions of Article 561.

      . The District Court rules provided that if no action had been taken in a case within one year of its filing it was removed from the active docket and placed upon a dead docket and it could not be reinstated upon the active docket until the litigant filed a motion to place it on the active docket and paid the clerk a fee of $5.00.

      . For an excellent discussion of the subject see Note, 40 Tulane Law Review 431 (1966).


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    MERCHANTS TRUST AND SAVINGS BANK v. Vincent FRANZONE.
    No. 11062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 25, 1980.
    Rehearing Denied Oct. 16, 1980.

      Bruce M. Danner, Philip S. Brooks, New Orleans, for plaintiff.
    Samuel W. Ethridge, Kenner, for defendant.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

Plaintiff bank appeals from a judgment which dismissed its suit to avoid two leases between itself and defendant, its one-time vice-president and president (and a director and one. of its controlling shareholders). The issue is whether defendant’s fiduciary obligation to the bank prevented his contracting as he did. Because the contracts seem insupportably unfair on their face and defendant did not bear his burden of proving their fairness, we reverse.

In 1950, plaintiff bank obtained a 39-year lease, cancelable at its option, upon a small building and an 84' X 125' lot on the corner of Airline Highway and Williams Boulevard in Kenner.

In 1964, the bank subleased the building less its storage vault, two rear rooms and attic (and “subject to” existing subleases), but no parking area, to defendant Franzone for the same rent that the bank paid for the whole building and lot. Evidently factors other than inflation had made the lease rights more valuable than the rent payable, and the bank collected the benefit of its 14-year-old lease bargain in the form of “rent-free” vault, offices, attic, and parking areas and perhaps also collected rents from earlier subleases. Franzone, of course, obtained office space for the rent he paid (then $378 per month under the original lease’s consumer price index formula).

In 1972, Franzone “subleased” to the bank the “rear portion (all of building excluding the portion thereof now occupied by the Convenience Food ,Store)”-again for the same rent (by then $435 per month). Four things must be observed about this “sublease.” First, it appears, although one cannot be certain from the record, that this “sublease” in fact returned to the bank little or no space the bank did not already have. It had reserved to itself the storage vault, two rear rooms and the attic. For all that the record shows, the Convenience Food Store may have occupied all the rest of the building. Second, Franzone had no entitlement to lease “all” the building save the store in any case because he himself had no right of occupancy for a 11 the building save the store. Third, no board of directors and no executive committee resolution authorized this contract for the bank. Fourth, Franzone had become one of the controlling shareholders of the bank just before this contract that appears to give Franzone, rather than the bank, the benefit of the bank’s by then 22-year-old lease bargain. Previously, Franzone paid the bank’s rent in full in return for a substantial part of the bank’s space; now the bank paid Franzone’s rent in full for a small part, if any, of Franzone’s space (all of which came from the bank).

That 1972 “sublease” was only for the two years that Franzone’s own 1964 sublease from the bank would remain enforceable. It must also be noted that although Franzone’s 1964 sublease authorized year-to-year renewals beginning in 1974, it also gave either party the right to terminate at any time after 1974 by 60-day notice. Thus, if the bank were getting needed space back from Franzone by the 1972 contract for a reasonable price (on a theory that what the bank got back was worth 100% of the rental), then reasonable management would have demanded in 1974 the termination of the 1964 lease and thus defeated any year-to-year extension. The bank should then have had all the space it rented to Franzone. Instead, management agreed to pay to Franzone 100% of the whole building and land’s rent for the small part of the space, if any, that Franzone returned to the bank.

Six years later, in 1978, those terminable-at-will arrangements were replaced by two contracts, each called a lease and each on the same standard form (save that the lease to the bank obliged the bank to pay “all utilities”). These two contracts gave Fran-zone rent-free the whole building except the vault, two rear rooms, and attic for the remaining 11 years, 11 months of the 39 years of the bank’s basic lease from the owner.

Three further items are noted. First, Franzone had by then become president of the bank. Second, the board of directors’ resolution was that the bank “extend the lease ” (emphasis added); there was no resolution authorizing the bank to lease back from Franzone. Third, the description of the property being leased almost verbatim tracked the description of the 1964 sublease to Franzone with, however, a curious omission: after reciting the building and its street address, instead of “consisting of office space . . . save and except the storage vault [etc.],” the description omitted “office space . .. save and except” and therefore reads “consisting of the storage vault, the two extreme rear rooms adjacent to the men’s rest room, and the attic of said building, which the lessor reserves to itself for its own use and purpose” (emphasis added). Despite the important omission, the description indirectly refers to a lease by the bank to Franzone and not vice versa. Yet the Franzone-to-bank lease of 1978 uses the identical description (including “which the lessor reserves for its own use”). Although in 1964 the bank had leased the whole building to Franzone save the vault, etc., in 1978 somehow Franzone is leasing to the bank nothing except what the bank had always reserved “for its own use”-and the directors’ resolution was only to “extend” the previous lease.

Franzone’s argument in this lawsuit is that the contracts were advantageous to the bank because the neighborhood deteriorated into a high crime area, increasing maintenance costs and causing the building to be vacant most of the time. Yet he did not provide evidence to support this argument. His records treated all his rental properties as one, and he could not show what maintenance costs he spent or what rentals he received on what property. It must further be recalled that the bank’s original lease from the owner was cancela-ble.

We pretermit the implications of neither the 1972 nor the 1978 lease by Franzone to the bank’s being approved by the board of directors or by the executive committee. Were there approval by the board, those leases must in any case be invalidated.

Because of Franzone’s fiduciary relationship to the bank, it was his burden to prove the fairness of his transactions with the bank, House of Campbell v. Campbell, La.App. 4 Cir. 1965, 172 So.2d 727, and he did not carry that burden. It appears, in the absence of proof of fairness, a betrayal of Franzone’s fiduciary duty that the bank should end up paying to Franzone 100% of the entire rental in 1978 for the space it had reserved to itself from its earliest lease to Franzone in 1964; that seems to be a lease of no space whatever to the bank. Similarly, the 1972 lease by Franzone to the bank appears facially insupportable in that Fran-zone did not prove even that the 1972 lease in fact leased any space whatever to the bank, much less that any space leased was worth 100% of the full building and lot’s rent. Also apparently unfair to the bank was management’s (Franzone’s?) failure to exercise its right to cancel the lease to Franzone, rather than return 100% of Fran-zone’s rent for little or none of the space the bank rented to Franzone.

There may be an explanation of these leases as advantageous to the bank, but Franzone did not supply it by reasonable proof as required by law.

The judgment appealed from is reversed, and there is judgment for plaintiff avoiding the leases by Franzone to the bank, and there is further judgment for the bank against Franzone for all rent paid by the bank to Franzone since 1972, with legal interest from the date of each payment, all at Franzone’s cost. The matter is remanded to the trial court solely for the purpose of determining the amount to be paid by Franzone to the plaintiff in the event the parties cannot agree thereon.

REVERSED AND REMANDED IN PART.


author: DOUCET, Judge.

text:
    Elgie Mae S. LaFLEUR et al., Plaintiffs-Appellees, v. BROWN & McKENZIE, INC. et al., Defendants-Appellants.
    No. 7611.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 3, 1980.

      Devillier & Ardoin, Ellis J. Daigle, Eunice, for defendants-appellants.
    Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiffs-appellees.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiffs, Elgie Mae Savoie LaFleur and Patricia Savoie Oubre, brought this suit to recover damages arising out of the installation of part of a gas lift system on their property in St. Landry Parish. The system was installed by defendants, Brown & McKenzie, Inc., Michael McKenzie, Terry V. Bills, Jr., and Goldking Production Company, to secure secondary recovery from an oil well on neighboring property.

The system consisted of three lines made of 2V2 inch pipe, which were laid across 3,373 feet of land belonging to plaintiffs. When it was installed in November or December of 1972, defendants did not have a servitude. Plaintiffs had no knowledge of the trespass until after the installation had been completed and defendants contacted them about obtaining a right-of-way. Even then, they were not apprised of the extent of the system. They believed that it consisted of only one 2V2 inch pipeline. Plaintiffs filed suit, seeking $40 per rod for the servitude unlawfully taken, plus damages caused by construction. Alternatively, they sought the removal of the pipeline.

After a trial, the district court rendered a judgment granting defendants a servitude for one 2V2 inch pipeline to be used to service one particular well. The servitude was to terminate upon the abandonment of the well. Defendants were ordered to pay plaintiffs the sum of $3,000 for the servitude granted and damages to date. Plaintiffs’ rights to future damages were reserved.

Defendants appealed, and the judgment was reversed by this Court. Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir. 1975). Judgment was rendered in favor of plaintiffs, ordering defendants to remove the pipeline, and the case was remanded to the district court for a determination of the damages to which plaintiffs were entitled because of the illegal construction of the pipeline on their land.

Before further action could be taken by the district court, the parties entered into a compromise agreement. Plaintiffs granted defendants a servitude for the sum of $40 per rod, or a total of $8,180. The agreement also provided for defendants’ payment of $5,000 in damages for their trespass, plus an additional $40 per rod for any additional pipelines laid across plaintiffs’ property in the future. Plaintiffs also signed and delivered to defendants an instrument styled a “Receipt and Release of Claim”, by which they discharged defendants from any liability to them, arising out of any claim and demands made in the suit, which had been remanded.

In March of 1977, the Colorado Pipeline Company, which had a pipeline running in a different direction across plaintiff’s property, retrenched their pipeline in order to put it deeper into the ground. When they did so, the three lines, which had been laid by defendants, were unearthed. It was then that plaintiffs first learned of the fact that there were actually three 2lh inch lines, rather than one. Plaintiffs filed the present suit, seeking damages for trespass, attorney’s fees, and the removal of the two extra lines. Alternatively, they seek payment of $40 per rod each for the extra lines.

Defendants filed the peremptory exception of res judicata, alleging that the cause of action on which this suit is founded was disposed of in the compromise agreement that was executed as a result of the previous suit. The exception was overruled, and the case was tried on the merits. The trial judge found that defendants had allowed plaintiffs to believe that there was only one line, which was the subject of the first lawsuit and the subsequent “Receipt and Release of Claim” and the right-of-way agreement. He further found that in the original trial held in the district court, it was not disclosed that the system included more than one line, nor was that understood to be the case when this Court reviewed the original suit. He concluded that plaintiffs had labored under a unilateral error of fact, which was the principal cause for entering into the compromise agreement. Judgment was rendered in favor of plaintiffs and against defendants in solido, ordering them to pay the sum of $5,000 as damages for trespassing and to remove the additional lines. Plaintiffs’ rights to seek additional damages occasioned by their removal were specifically reserved.

Defendants appealed, and plaintiffs answered the appeal, seeking an increase in the amount of the damages awarded for the trespass, an additional $16,300 as payment for the two additional lines, and $5,000 as attorney’s fees.

The position adopted by defendants on appeal is that the exception of res judicata should have been sustained, because the cause of action on which this suit is founded was compromised in the settlement of the earlier suit. They argue that plaintiffs were fully apprised of the fact that there were three lines when the earlier suit was brought and when the compromise agreement was executed. They also contend that the fact that there were three lines was made known to the district court and to this Court when the earlier litigation took place. Alternatively, they argue that if plaintiffs labored under an error of fact, the entire compromise agreement should have been rescinded, and the $13,180 that they paid to plaintiffs should have been returned to them.

Plaintiffs, on the other hand, contend that defendants fraudulently concealed the fact that there were three lines and that they did not intend to give up their right to claim damages for the two extra lines. They argue that under LSA-C.C. Art. 1881, they have the option of demanding the rescission of the compromise agreement because of defendants’ fraud. However, they claim that they do not want it rescinded, because under the agreement, they are entitled to retain the $13,180 that defendants have already paid and to demand additional payment and damages for the two extra lines.

The first issue which must be resolved is whether defendants have proved their allegations of fraud. A finding of legal fraud must be based on proof of its two essential elements: the intention to defraud and either loss or damage, or a strong probability of loss or damage. Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979). Fraud is never presumed. The party alleging it has the burden of establishing it by clear and convincing proof, not simply by a preponderance of the evidence. Hall v. Arkansas-Louisiana Gas Co., supra; Karst v. Fryar, 361 So.2d 1344 (La.App. 3rd Cir. 1978).

After carefully reviewing the evidence in the record in light of those principles, we find that plaintiffs have established beyond reasonable doubt that defendants are guilty of fraud. We believe that the record of the earlier suit, which was introduced into evidence, shows clearly that the true facts were not made known when the case was tried or when it was reviewed by this Court. Defendants deliberately concealed the fact that the system consists of three lines for the purpose of depriving plaintiffs of the full extent of the compensation to which they are entitled for the unauthorized use of their property. Having found that plaintiffs were the victims of defendants’ fraud, we must determine what effect it had on their compromise agreement and what effect the agreement has on plaintiffs’ demands in this suit.

Four things are necessary for a contract to be valid: the parties must be legally capable of contracting; their consent must be legally given; there must be a certain object, which forms the matter of agreement; and the contract must have a lawful purpose. LSA-C.C. Art. 1779. When the consent of a party is obtained as a result of fraud, the contract is voidable under LSA-C.C. Arts. 1847-1849. However, the victim of the fraud can elect to demand the contract’s enforcement. LSA-C.C. Art. 1881.

In the case at hand, plaintiffs have demanded the contract’s enforcement. This raises the issue of what effect the compromise agreement has on their rights to seek the relief demanded in this suit. Defendants contend that the agreement precludes such relief and that their exception of res judicata should therefore have been sustained. Due to the particular circumstances of this case, we believe that LSA-C.C. Art. 3073 is applicable, rather than the articles pertaining to errors of fact, which were alluded to by the trial judge. Article 3073 provides:

“Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.”

It is abundantly clear from the evidence in the record that the differences that existed between the parties when the compromise agreement was executed did not extend to the two lines that plaintiffs were unaware of. Therefore, plaintiffs’ renunciation in the contract of all claims and demands “which they have or may have” against defendants does not encompass the claims made in this suit, and the judgment overruling the exception of res judicata was correct. LSA-C.C. Art. 3073; Succession of Ramp, 252 La. 660, 212 So.2d 419 (1968).

Having found that this suit was properly brought, we must determine whether the relief granted by the trial court is sufficient. As we noted earlier, the trial judge awarded plaintiffs $5,000 as damages for trespass and ordered defendants to remove the two additional lines. Plaintiffs have answered the appeal, seeking an increase in the amount of damages for trespass, plus payment of $40 per rod for the additional lines. Their demands for payment for the extra lines is based on the compromise agreement. We believe that it is clear from a reading of the agreement, however, that it contemplates payment for lines to be laid in the future, rather than lines that had already been laid. The trial judge apparently agreed with that view, since he ordered their removal, rather than awarding payment for them. We find no error in that ruling.

With regard to the increase in the amount of damages for trespass, which has been requested by plaintiffs, we do not find, after reviewing the evidence, that the trial judge has abused his “much discretion” under LSA-C.C. Art. 1934. Absent a finding of abuse of discretion, we are not free to tamper with the trial court’s award. Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978).

The only remaining issue is whether plaintiffs are entitled to the attorney’s fees that they have requested. Our jurisprudence is well settled that attorney’s fees are not allowable unless they are particularly authorized by law or a contract between the parties. Simmons v. Hernandez, 287 So.2d 637 (La.App. 3rd Cir. 1973). We know of no authority for awarding attorney’s fees in this case.

For the above and foregoing reasons, the judgment appealed by defendants is affirmed. All costs of this appeal are assessed to the defendants.

AFFIRMED.


text:
    Johnny DeJESUS v. AMERICAN HOME INSURANCE COMPANY.
    No. 10983.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 1980.
    Gerald P. Webre, Kerry P. Camarata, Me-tairie, for plaintiff.
    J. Michael Johnson, Henri Wolbrette, III, McGlinchey, Stafford & Mintz, New Orleans, for defendant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

We affirm, on plaintiff’s appeal, a judgment rejecting his claim on an automotive insurance policy. The entire record— especially the deposition of Gregory Luker — amply supports the trial judge’s upholding the insurer’s defense of arson.

Plaintiff argues that the trial judge erred in admitting the Luker deposition over plaintiff’s objection. However, Luker was subpoenaed by domiciliary service in an adjoining parish four days before the trial. We hold that a showing that a deponent was timely subpoenaed for trial, yet is absent, establishes “that the party offering the deposition has been unable to procure the attendance of the witness by subpoena” within La.C.C.P. 1450(3)(d).

Warrington v. Employers Group Ins. Co., La.App. 4 Cir. 1968, 207 So.2d 207, writ refused 252 La. 118, 209 So.2d 42, cited by appellant, is not controlling because there the “service . . . was neither personal nor domiciliary,” having been attempted upon the deponent’s secretary at his office.

Plaintiff also complains of the admission of two transcribed statements. One was admitted for a limited purpose to which plaintiff did not object. The other was admitted conditioned upon it being shown that it came from plaintiff’s partner in the wrecker business. Such a showing was not made; the trial judge’s reasons do not refer to that statement; and we conclude that that statement had no significant effect upon the outcome of this case.

Affirmed.


author: SAMUEL, Judge.

text:
    Marlene Martin CHAMPAGNE et al. v. Sidney EUSEA.
    No. 10449.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 1980.
    Rehearing Denied Oct. 16, 1980.

      Ralph D. Hillman, Thibodaux, for plaintiffs-appellants.
    Leon C. Vial, III, Hahnville, for defendant-appellee.
    Before SAMUEL, SCHOTT and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is a suit by plaintiffs, Marlene Martin Champagne and Russell Martin, children of Eula D. Eusea, against their deceased mother’s second husband, Sidney Eusea. The suit is based on various claims arising out of plaintiffs’ inheritance from their mother. It seeks an accounting, reimbursement, and determination of ownership of certain jewelry.

Defendant answered, denying liability, and filed a reconventional demand seeking reimbursement of various items expended by him, plus $10,000 in damages for construction by plaintiffs of a fence between the house in which he lived and a trailer park directly behind it.

The trial court judgment grants plaintiffs reimbursement of $150 insurance expense and declares them to be the owners of the three items of jewelry in suit. It dismisses plaintiffs’ request for an accounting and reimbursement of various items as will be discussed below. In addition, the judgment recognizes defendant as entitled to a usu-fruct on the entire property in which he lived, also recognizes him as the owner of one-half of the two checking accounts in litigation, and awards him $500 for the estimated cost of removing the fence erected by plaintiffs. Plaintiffs have appealed.

Some background information is necessary to understand the issues presented. Eula D. Eusea died on August 23, 1977. She was survived by two children, the plaintiffs herein, and by a second husband, the defendant. The major part of her estate consisted of separate property, which she inherited from her father. Among her separate assets was her home in Paradis, Louisiana, in which she lived with her second husband.

As the decedent did not commingle her separate estate with community assets, there is little argument regarding what property is community and what is separate property. However, much controversy exists involving the meaning of decedent’s last will and testament, particularly as to the extent of the usufruct or other right that document bequeaths to the defendant.

Prior to the probate of decedent’s will by the defendant, plaintiffs sought and obtained a judgment of possession recognizing them as the owners of all of decedent’s separate property and of her one-half of the relatively small community estate. The petition for possession states that although plaintiffs did not have physical possession of their mother’s will, they were aware one existed which gave the second husband the usufruct over the home in Paradis, Louisiana. Plaintiffs stated they did not oppose such a usufruct if one existed, and this was made part of the succession record.

A short time after this judgment of possession was signed, defendant filed decedent’s will for probate. The disposition in the will which now forms a major controversy is a provision by which the decedent declared she desired her husband “. . . have the complet [sic] use of my house and the property upon which it is situated to live in for the remainder of his life ....”

The judgment appealed from recognizes defendant as the owner of a usufruct “comprising the home and the 90 foot by 110 foot lot .... including the spaces for trailer rent.” This portion of the judgment is confusing, since both sides agree the property is not merely a small 90 by 110 foot lot, but instead comprises a larger tract measuring 125 feet wide by approximately 700 feet deep. The parties also agree that on this tract were both the house in suit and a trailer park, the utilities for which were installed by plaintiff, Russell Martin, and his brother-in-law, Julien P. Champagne, shortly before decedent confected her will in September, 1968. The problem is further confused by the fact that the trial judge awarded defendant a usufruct over the entire tract of ground in spite of defendant’s prayer in reconvention that he be awarded a usufruct over only three trailer spaces.

The house itself is set back approximately 50 feet from the front property line. Behind the house is a carport and a small back yard. The trailer park adjoins the rear of that yard and extends to the back property line.

After Champagne and Martin installed the utilities for the trailer park, Champagne administered it by collecting the rents and paying the bills. He later turned operation of the park over to Mrs. Eusea, and after her death plaintiffs notified defendant, Sidney Eusea, they would recognize his usu-fruct of the home, while claiming their right to possession of the trailer park. Nevertheless, defendant collected the trailer park rentals from August 23, 1977 (the date of decedent’s death) until February, 1978.

Defendant offered no testimony supporting his claim to a usufruct or other right over three trailer spaces. Champagne testified he installed utilities and began operating the park around 1966; that decedent collected the rents for him and deposited them into his bank account until approximately a year prior to her death; and that for the last year of her life she collected the rentals for her own account. This testimony was not contradicted.

Our primary task is to determine the intention of the testatrix in order to ascertain the extent of the usufruct bequest to the defendant. When the will was written in September, 1968, the trailer park improvements had only recently been installed, and the rent was being collected either by Champagne or by decedent for his account. Plaintiffs argue, and we agree, it is not likely decedent intended to grant her second husband rights over a new commercial venture begun by her son-in-law which, of necessity, reaped a benefit to her daughter. This is particularly true since at the time of her will and for some years thereafter, defendant had nothing to do with the administration of the trailer park or collection of rents. Also, decedent’s choice of words cannot be ignored. She willed to defendant “use of my house and the property upon which it is situated to live in for the remainder of his life . . . .” (emphasis ours). Decedent chose the word “house” and did not use the word “home”. Had she used the word “home”, a broader interpretation might be justified. In addition, the decedent limited the extent of the bequest by adding the words “to live in for the remainder of his life”. She could not have contemplated the defendant would “live” in a tract of land 110 feet wide by 700 feet in length, especially when the major portion of the rear of the tract was a trailer park.

We conclude the intention of the testatrix was to give defendant a servitude over the house and the land upon which it was built, including normal ancillary buildings and appurtenances, such as the carport and the small front and back yards. The wording of the testamentary bequest does not support the trial court’s award of a usufruct over the entire depth of the 700 foot property.

This conclusion is further strengthened by the error contained in the judgment by which the trial court awarded defendant the usufruct “comprising the home site and the 90 foot by 100 foot lot .... including spaces for trailer rents.” The trial judge may have thought the property was only a small lot measuring 90 by 110 feet, and apparently assumed the trailer park was somehow included in this area of land.

However, the property is far larger; it exceeds the amount of space necessary for defendant “to live in . .. . ” The judgment will be modified by limiting the extent of defendant’s usufruct to the house, and that portion of the property from the front property line to the fence now separating the house and adjacent out building from the trailer park. However, as the record does not contain a sufficient description of the property for this court to comply with LSA-C.C.P. Art. 1919 in our decree, we will remand for a survey to determine the exact property subject to defendant’s usufruct in the event the parties cannot agree thereon.

Having reached this conclusion, it follows that the trial judge also erred by awarding defendant a usufruct over any of the trailer spaces. Defendant claimed a usufruct over only three spaces, but offered no testimony in support of that claim. This lack of testimony, together with our conclusion regarding the testatrix’ donative intent, mandates the judgment be further amended to eliminate trailer spaces from the defendant’s usufruct.

Likewise, the result now reached requires that we amend the judgment appealed from to cause defendant to account to plaintiffs for rentals collected by him from August 23, 1977 until the time plaintiffs began those collections. Plaintiff Martin and his brother-in-law, Champagne, presented and verified a list itemizing the number of trailers present in the trailer park during each of these months and showed the amount of $1,720 as revenue for that period. Defendant attempted to set off against this amount the cost he claims he paid for a load of shells on the trailer park, but he presented no evidence of payment, no bill, and no indication of the vendor. The amount of $1,720 requested by the plaintiffs should have been awarded to them.

Directly related to the issue of the extent of the testamentary bequest enjoyed by defendant is the trial judge’s award of $500 to defendant for the estimated cost of removal of a fence constructed by them to separate the trailer park from the front portion of the property. Since we conclude defendant has no right to a usufruct over the trailer park, we also must conclude the fence separating the two portions of the property is appropriate and eliminate from the judgment the $500 award to defendant.

Next, the judgment recognized defendant as half owner of certain community checking accounts at the Bank of St. Charles & Trust Company and the American Bank. Appellants readily concede these banks already have paid to them their mother’s one-half of the balance existing on the date of her death. They consequently concede the trial judge incorrectly awarded defendant one-half of the remaining balances and should have awarded defendant the remaining balances in their entirety. The judgment will be amended accordingly.

Plaintiffs further argue the trial judge committed error by simply recognizing them as the owners of three pieces of jewelry owned by their mother at the time of her death and by not ordering defendant to return this jewelry or pay to them the sum of $500. Involved here are a white gold diamond ring, yellow gold initial ring, and a yellow gold pin. Plaintiffs testified they saw their mother in possession of one of the rings and the pin during the last two weeks prior to her death. Defendant testified he was in possession of one of the two rings (a diamond ring), contended it was given to him by the decedent before she died, and denied knowledge of the whereabouts of the other ring and pin. His testimony is the only evidence regarding such a gift. There was no evidence to indicate the value of the jewelry, and a money award against defendant would have been mere speculation.

In our view, while the trial judge correctly recognized plaintiffs as owners of the jewelry and correctly concluded plaintiffs did not prove defendant was in possession of the ring and pin of which he denies any knowledge, defendant failed to prove a gift of the diamond ring in his possession and we know of no reason why he should not be ordered to return the same. We will amend the judgment accordingly.

Plaintiffs next complain because the trial court did not grant them judgment for $3,086.50 for reimbursement of one-half of the separate funds decedent used to purchase certain property in Grand Isle, Louisiana.

Decedent inherited a 25% interest in her father’s succession. Along with the other undivided owners, over the years decedent would sell items from this inheritance, and the proceeds usually were deposited in a savings account decedent maintained in the Bank of St. Charles & Trust Company. That the only funds placed in this savings account were proceeds from various sales of separate property belonging to decedent is not contested and, as we have said, it is clear there was no commingling of separate and community funds in this account.

On May 16, 1973, decedent sold her interest in certain property to one Leonard Fisher. Decedent’s 25% share of the proceeds was $19,250. On that day, she made a deposit of $16,000 in the St. Charles Bank savings account. A short time later, on July 9, 1973, she withdrew $6,173 from this savings account and on the same date of July 9, 1973 purchased the Grand Isle property with defendant for $10,200. Defendant admits in testimony that this withdrawal was used in the purchase of the property. Defendant argues that although separate and community funds were used to purchase the Grand Isle property, the purchase document did not contain a double declaration establishing the separate nature of decedent’s funds, and the plaintiffs have not rebutted the resulting presumption of community.

This argument is without merit. It does not meet the question presented, since plaintiffs concede the property was community in nature, but simply demand reimbursement for one-half of the decedent’s separate property admittedly used in its purchase. When separate funds are used to increase the value of the community estate, and when the amount of the separate property can be traced without difficulty, reimbursement is owed the heirs of the separate estate upon dissolution of the community.

In the present case, decedent’s contribution of her separate funds to the purchase of the Grand Isle property can be readily traced, and even though the property is properly regarded as community, plaintiffs as heirs of the decedent are entitled to an accounting and reimbursement of one-half of the separate funds used to acquire the community property. The judgment will be amended accordingly.

Plaintiffs’ final argument is that the trial court committed error by failing to award them $1,250 as reimbursement for one-half the separate funds used by decedent to purchase a 1976 Ford automobile. On the other hand, defendant claimed reimbursement of $250 on the theory that he purchased from plaintiffs decedent’s one-half interest in the family car for the sum of $1,500.

The same principles applicable to the Grand Isle property apply to the family automobile and need not be restated. The facts show that on December 3, 1975 decedent sold certain property, for which she received $2,250. That amount was deposited in her separate savings account the next day. Four days later, a $2,500 withdrawal was made from decedent’s separate savings account, and on December 15,1975 decedent and defendant purchased a new 1976 Ford automobile with a cash down payment of $2,500. The automobile was listed in decedent’s succession as community property.

We conclude plaintiffs are entitled to reimbursement of $1,250. The check for $1,500 sent by defendant to plaintiffs’ attorney on January 30, 1978 represented a purchase by defendant from the succession of the decedent’s one-half interest in the vehicle. Proof of the nature of the transaction is that title to the automobile was delivered to defendant, and supposedly title was changed to his name. However, the subsequent purchase from decedent’s succession of her interest in the automobile is unrelated to the original acquisition and the nature of the funds used by decedent and defendant in acquiring the automobile. As with the Grand Isle property, the automobile was purchased during the existence of the community, and as such it is presumed to be community property. The separate nature of the funds used for the down payment on the automobile are readily traceable to decedent’s separate funds, and her heirs are now entitled to be reimbursed for one-half of that amount. The judgment will be amended accordingly.

For the reasons assigned, the judgment appealed from is affirmed in part, amended in part, reversed in part and recast so as to read as follows:

“It is ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Russell P. Martin and Marlene Martin, wife of Julien P. Champagne, and against defendant and plaintiff in reconvention, Sidney Eusea: (1) recognizing the said Sidney Eusea as the owner of a usufruct over the immovable property in Paradis, Louisiana, which property subject to usufruct extends in area between the two side property lines and from the front property line to the fence separating the house, carport and back yard from the trailer park on the rear portion of the property, and excluded any trailer spaces from said usufruct; (2) awarding plaintiffs $1,720 for trailer park rentals collected by defendant between August 23, 1977 and January 1, 1978, with legal interest from judicial demand; (3) awarding plaintiffs $3,086.50 and $1,250, or a total of $4,336.50, plus legal interest from judicial demand, as reimbursement of one-half of decedent’s separate funds used to acquire immovable property in Grand Isle, Louisiana and a 1976 Ford automobile, respectively; (4) awarding plaintiffs $150 for reimbursement of insurance premiums for the house in Paradis, Louisiana; (5) dismissing defendant’s claim against plaintiffs for damages for erecting a fence on the Paradis, Louisiana property; (6) recognizing plaintiffs as the owners of a white gold diamond ring, a yellow gold initial ring, and a yellow gold pin formerly belonging to their mother, Eula D. Eusea; and (7) ordering the defendant to return the white gold diamond ring to the plaintiffs.

Judgment is further rendered in favor of defendant and plaintiff in reconvention, Sidney Eusea, and against plaintiffs and defendants in reconvention, Russell P. Martin and Marlene Martin, wife of Julien P. Champagne, recognizing said Sidney Eusea as the owner of the entire balance in community checking accounts No. 32-8207-4 in the Bank of St. Charles & Trust Company and No. 3-230-651 in the American Bank.”

It is further ordered that the matter be remanded to the trial court solely for the purpose of establishing a description of the property subject to the usufruct herein recognized as belonging to the said Sidney Eusea, by agreement of the litigants if that is possible or by a proper survey in the absence of such an agreement.

Costs in both courts are to be paid as follows: One-half by the plaintiffs and defendants in reconvention and one-half by the defendant and plaintiff in reconvention.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; RECAST AND REMANDED.

      . The two succession proceedings and the suit for an accounting, etc. were consolidated in the trial court and all three are before us on this appeal.

      . We note that, under Civil Code Articles 535, et seq., 630, et seq., and 639, et seq., the wording of decedent’s will would appear to bequeath to the defendant the servitude of habitation or use rather than usufruct. However, as the plaintiffs conceded in the trial court that the servitude is one of usufruct, and as they make no complaint in this court in regard thereto, we do not disturb the trial court ruling that a usufruct was bequeathed.

      . See Succession of Davis, La.App., 178 So.2d 481.

      . See, for example, Vicknair v. Vicknair, La. App., 284 So.2d 836.

      . It should be noted the other one-half of this separate property was recouped by plaintiffs when they were recognized as the owners of decedent’s one-half of the Grand Isle property.

      .See Vicknair v. Vicknair, supra, note 3.

      . This item is not in dispute.


author: PER CURIAM.

text:
    James U. BLANCHARD, III et al., v. James H. BROWN, Secretary of State for the State of Louisiana.
    No. 13905.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 8, 1980.

      Henry T. Dart, New Orleans, for plaintiffs-appellees, James U. Blanchard, III, Timothy I. Murray, John Sylvester, III, Gerard Michael Schott, et al.
    Carmack M. Blackmon, Asst. Atty. Gen., Baton Rouge, for defendant — appellant, James H. Brown, Secretary of State for the State of Louisiana.
    Before COVINGTON, CHIASSON, PONDER, LEAR and COLE, JJ.
   PER CURIAM.

The defendant, Honorable James H. Brown, Secretary of State for the State of Louisiana, has devolutively appealed from a judgment directing him to perform a purported purely ministerial act.

We have reviewed the entire record thoroughly and find that the written reasons for judgment by the trial judge are excellent and manifestly correct. Exhaustive research merely confirms his conclusions on each alleged error specified by the appellant; any additions by us would merely entail verbiage.

Accordingly, we adopt the reasons of the trial judge, contained in “Appendix A”, annexed hereto, as our own.

Pursuant to LSA-R.S. 13:5112, the defendant-appellant is assessed with costs in the amount of $173.71.

AFFIRMED.

JAMES A. BLANCHARD, III, ET AL VS.
JAMES H. BROWN, SECRETARY OF STATE FOR THE STATE OF LOUISIANA

WRITTEN REASONS AND JUDGMENT

PAUL B. LANDRY, Judge. Pro Tem.

This is an action by ten members of the Libertarian Party, one from each congressional district of Louisiana, and two from the State at large, to compel the Honorable James H. Brown, Secretary of State for the State of Louisiana (Secretary), to qualify plaintiffs as a slate of independent nominees for presidential elector in the presidential election to be held November 4, 1980. All plaintiffs are registered voters and are otherwise qualified to serve as presidential elector.

Pursuant to Act 523 of 1977, LSA-R.S. 18:1254A, effective January 1, 1978, plaintiffs, on June 18, 1980, served notices of candidacy with the Secretary, accompanied by certified check in the sum of $500.00. Act 523 of 1977 provides:

“A. Slates of independent candidates for presidential elector may be nominated by nominating petitions or may qualify by the payment of a qualifying fee of five hundred dollars. Such qualifying fee shall be paid in accordance with the provisions of R.S. 18:464(A). An independent candidate for presidential elector may be registered to vote with or without a declaration of party affiliation.”

Predicated on Act 588 of 1977 (LSA-R.S. 18:1254), effective January 1, 1978, enacted one day subsequent to passage of Act 523, above, the Secretary rejected plaintiffs’ attempt at qualification for the office of presidential electors. Act 588, above, pertinently states:

“A. A slate of independent candidates for presidential elector may be nominated by nominating petition.”
NUMBER 237,193 DIVISION “H”
19TH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE.
STATE OF LOUISIANA

In rejecting Plaintiffs’ attempted qualification the Secretary also relied upon an opinion of the Attorney General, State of Louisiana, Number 80-549, dated April 24, 1980, in which the Attorney General stated that Act 523 of 1977, was impliedly repealed by Act 588 of 1977, and that nomination of independent slates for presidential elector could be legally accomplished only by nomination papers.

Not only did the Secretary of State decline to accept Plaintiffs’ attempted nomination at this time, he has made it clear that nomination for the office in question may be by nomination petition alone and that any future attempt by Plaintiffs to qualify by payment of a $500.00 fee would be rejected and denied.

LSA-R.S. 18:1255 provides that nomination for the office of presidential elector shall commence on the first Tuesday of August (August 5, 1980), and end at 5:00 P.M. on the first Tuesday of September (September 2, 1980).

Plaintiffs concede they may not qualify prior to August 5, 1980. The prayer of Plaintiffs’ petition requests that an order issue to defendant “-directing that he receive the certificates of nomination of plaintiffs, together with a certified check from the Libertarian Party in the amount of $500.00 and that he qualify Plaintiffs as electors in the upcoming presidential election, on or before 5:00 P.M. September 2, 1980, or show cause to the contrary-.”

Plaintiffs urge, however, there is no conflict between Acts 523 and 588, above. They also maintain that both statutes can be given effect pursuant to the rules of statutory interpretation and that the net effect of both laws is to allow nomination for presidential elector either by payment of a fee or by nominating petition.

The Secretary has filed pleas of prematurity, unauthorized use of summary proceedings, and no cause of action.

THE EXCEPTION OF PREMATURITY

It is urged in this respect that Plaintiffs are attempting to qualify before the qualifying period officially begins on August 5, 1980. This argument is patently without merit. As noted above, Plaintiffs pray only that the Secretary be directed to qualify Plaintiffs by certification and payment of the fee required by Act 523, above, prior to the close of the nomination period at 5:00 P.M. September 2, 1980. Plaintiffs are not requesting nomination at this time.

As pointed out by Plaintiffs, the Secretary has made it clear that he will not at any time accept qualification by payment of the fee provided for in Act 523, above. The Secretary has also made clear the fact that nomination for independent slates of presidential elector is authorized by nominating petition only and that he will at no time accept any other form of nomination for such office.

The portion of Plaintiffs’ prayer quoted above asks not that Plaintiffs be nominated at this time, but only that the Secretary be required to qualify Plaintiffs pursuant to Act 523, above, within the qualification period established by law. Plaintiffs’ demands are not premature. The exception of prematurity is overruled.

UNAUTHORIZED USE OF SUMMARY PROCEEDINGS

The Secretary objects to the use of summary proceedings on the ground he has no duty to accept any form of nomination until the qualifying period officially commences. With this position the Court is in complete agreement. As already noted, however, Plaintiffs do not seek nomination at this time. They ask only that their alleged right to qualify by payment of the fee provided by Act 523, above, be recognized and made available to them during the official qualifying period.

Mandamus may issue to compel a public official to perform a purely ministerial duty. LSA-C.C.P. Article 3863. LSA-R.S. 18:1255 designates the Secretary as the official before whom Plaintiffs must qualify. Consequently, if Plaintiffs may qualify pursuant to Act 523, above, the Secretary may be compelled to accept such method of qualification if acceptance is found to be a ministerial duty. Slusser v. Credeur, 252 So.2d 688 (La.App. 3d Cir. 1971).

Since time is of the utmost importance in this instance, because qualifying may only take place within the interval prescribed by law, if Plaintiffs are entitled to the rights asserted, such rights can be protected and insured of fulfillment only by an expeditious determination thereof. Summary proceedings were intended for use in just such a situation as exists here because ordinary process is inadequate to protect the rights asserted. The exception of unauthorized use of summary proceedings is overruled.

EXCEPTION OF NO CAUSE OF ACTION

The Secretary argues that Plaintiffs fail to allege a cause of action because Plaintiffs have failed to establish the right to nomination for presidential elector by payment of a fee. This position more properly addresses the merits of the case and will be disposed of in the Court’s consideration of the merits.

The Secretary also urges that he is under no duty to accept Plaintiffs’ filings until the qualifying period officially begins. This argument has been previously disposed of in the Court’s ruling on the Secretary’s plea of prematurity, in which it pointed out that Plaintiffs are not requesting nomination prior to commencement of the official qualifying period. The exception of no cause of action is overruled.

THE MERITS

The salient issue is whether or not Act 523 of 1977 has been impliedly repealed by Act 588 of 1977. The Secretary contends the statutes are in conflict and therefore Act 588 having been subsequently enacted, must prevail, thus allowing qualification only by nominating petition. Conversely, Plaintiffs contend the terms of the statutes are not irreconcilable; that they may be construed together, and; that both may be given effect. Therefore, Plaintiffs maintain they have the right to qualify either by payment of the required fee or by nominating petition.

The rule of statutory construction applicable to statutes enacted at the same legislative session and affecting the same subject is stated in Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952) as follows:

“The uniform jurisprudence is to the effect that all statutory provisions are to be given effect whenever possible. If acts can be reconciled by a fair and reasonable interpretation, it must be done, since the repeal of a statute by implication is not favored and will not be indulged if there is any other reasonable construction. Moreover, where two acts relating to the same subject are passed at the same legislative session, there is a strong presumption against implied repeal, and they are to be construed together, if possible, so as to reconcile them, giving effect to each. In the latter case this Court quoted with approval the following language: ‘Where it is possible to do so, it is the duty of the courts in the construction of statutes, to harmonize and reconcile laws * * *. These rules are particularly applicable to statutes passed at or about the same time, or at the same session of the legislature since it is not presumed that the same body of men would pass conflicting and incongruous acts.” (citations omitted)

In State v. St. Julian, 221 La. 1018, 61 So.2d 464 (1951), the Court noted:

“The principle that a repeal by implication is not favored by law is especially applicable as between two statutes passed at the same session of the Legislature. And where two acts relating to the same subject matter are passed at the same legislative session, there is a strong presumption against implied repeal, and they are to be construed together, if possible, so as to reconcile them, giving effect to each, and thereby avoid an implied repeal, rather than to infer that one destroys the other.”

It thus appears well established that where conflict exists between statutes passed at the same legislative session, the statute enacted last will prevail. If such statutes are not in conflict and thus may be construed together, both are given effect.

The Court finds no conflict between Acts 523 and 588 of 1977. The latter contains no language indicative of legislative intent that Act 588 shall prescribe the only method of qualification for presidential elector. Neither does Act 588 expressly overrule Act 523.

The instant case is distinguishable from Dickerson v. Hennens, 249 So.2d 251 (La. App. 2nd Cir. 1971), in which one statute validated a marriage while another adopted at the same legislative session invalidated the marriage, and irreconcilable conflict. Accordingly, in Dickerson, above, the Court held that the second statute impliedly overruled the first.

Act 588 of 1977, does not purport to exclude methods of qualifying other than by nominating petition. Therefore, the Court concludes that the fee payment of qualifying authorized by Act 523 of 1977, was intended to remain as an alternative method of qualifying. The statutes can thus be read together and both be given effect. In this regard, it is noted that the Election Code permits candidates for all other offices to qualify either by nominating petition or payment of a fee. Allowing nominees for presidential elector to qualify by payment of a fee appears consistent with the general scheme and intent of the Election Code to permit candidates for all offices to so qualify. Nominees for presidential elector are thus placed on a par with nominees in general so far as nominating procedure is concerned.

Additionally, this Court is of the view, and holds, that inherent in the basic philosophy of our democratic form of government, it is the principle that participation in governmental affairs and the pursuit of political office is an individual right to be encouraged. The corollary of this tenet is that laws governing nomination of candidates for public office should be liberally construed to foster rather than deter, to facilitate rather than to hinder the qualification for candidacy for public office. There appears no valid reason to deny presidential electors the right to nomination by payment of a fee, a right given all other candidates for office.

The Court concludes that Act 523 is a viable, effective statute pursuant to which candidates for presidential elector may be nominated by either method therein provided.

There remains the question of whether Plaintiffs are entitled to enforcement of their right by mandamus.

Section 1255, above, makes it the duty of the Secretary to accept qualifying documents from candidates for the office involved herein. It is clear that the Secretary is required to accept nominating documents from a candidate utilizing any authorized method of nomination. It is equally clear that the Secretary is required to accept any proper nominating documents submitted within the period provided for by law.

As previously noted herein, mandamus will lie where delay in obtaining relief by ordinary means will result in injustice. La.-C.C.P. Article 3863. In this instance time is of the essence. It is extremely doubtful whether ordinary process admits of a complete, meaningful and orderly determination of Plaintiffs’ rights prior to expiration of the nominating period involved herein.

Mandamus will lie to compel prompt and proper performance by a public official of a purely ministerial act. State ex rel. Schwegmann Bank & Trust Co. v. Jean-sonne, 144 So.2d 159 (La.App. 1st Cir. 1962).

The duty of the Secretary to accept nomination documents is purely ministerial. Section 1255, above, affords the Secretary no discretion to refuse to accept qualifying documents which comply with the law governing nomination for presidential elector. State ex rel. Elston, et al. v. Parish Democratic Executive Committee for Parish of Plaquemines, et al., 173 La. 844, 138 So. 857 (1931). See also Dupuy v. Jones, 15 So.2d 528 (La.App. 1st Cir. 1943); State v. Toups, 95 So.2d 55 (La.App. 1st Cir. 1957).

IT IS ORDERED, ADJUDGED, AND DECREED that defendant, James H. Brown, Secretary of State for the State of Louisiana, be and he is hereby ordered, directed and mandated to receive the certificates of nomination of Plaintiffs, together with a certified check from the Libertarian Party in the amount of $500.00 and that he qualify Plaintiffs as electors in the upcoming presidential election, on or before 5:00 P.M., September 2, 1980, and that said Secretary be cast for such costs to which he is amenable at law.

Baton Rouge, Louisiana, this 21st day of July, 1980.