author: NORRIS, Judge.

text:
    Dudley B. PILLOW, Jr., et al., Plaintiffs-Appellees, v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT, Defendants-Appellants.
    No. 15041-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 25, 1982.
    Rehearing Denied Dec. 9, 1982.
    Writ Granted Jan. 28, 1983.

      Mack E. Barham, New Orleans, Henry C. Sevier, Jr., Tallulah, Frank Voelker, Jr., Lake Providence, E.H. Lancaster, Jr., Tallu-lah, for Plaintiffs-Appellees.
    William J. Guste, Jr., Gary Keyser, Michael O. Hesse, Baton Rouge, C. Calvin Adams, Jr., Tallulah, for defendants-appellants.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

In this inverse appropriation proceeding, defendant, Board of Commissioners for the Fifth Louisiana Levee District (hereinafter referred to as “Levee Board”), appeals a judgment of the district court awarding plaintiffs, Dudley B. Pillow, Jr., Watson Pillow, and Lois Pillow Robertson (hereinafter referred to as the “Pillows”), $409,-189.70 as the fair market value of property taken for a levee servitude and severance damages to portions of the remaining property plus attorneys’ fees of xh of the principal and interest under the judgment plus 12% interest on the attorneys’ fees until paid. We amend and affirm.

FACTS

This lengthy, involved litigation was initially brought when thirty five plaintiffs, who are owners of land and other real rights in the Fifth Louisiana Levee District composed of the parishes of East Carroll, Madison, Tensas, and Concordia, filed a class action against the Levee Board in the district court for Madison Parish on July 7, 1978, seeking injunctive, declaratory and alternative relief.

This matter arose when the Levee Board acting in concert with the U.S. Corps of Engineers and the Louisiana State Department of Public Works in July, 1973, began appropriating lands for the construction, reconstruction, raising, enlargement, repair, relocation, realignment, widening and improvement of the levee along the right descending bank of the Mississippi River from the Arkansas state line on the north to the southernmost limits of the Levee Board’s jurisdiction. The taking of property in Madison Parish was in connection with the Young’s Point or Reid Bedford Levee Enlargement and Berm Project. At the time of the filing of the original suit, certain contracts had been completed covering certain areas of the project, other contracts were underway and still other contracts were being advertised for bids.

The importance of an adequate Flood Control Plan for the lower Mississippi valley goes without mention. Levees are a key element of the flood control plan, working in combination with floodways, channel improvement and stabilization, and tributary basin improvements. Memories of the 1927 Flood and the 1973 Flood are sufficient to emphasize the importance of projects such as the Young’s Point project as it relates to the broad plan of the Mississippi River Commission to prevent destructive floods in the Lower Valley under the authority of the Flood Control Act of 1928.

In connection with this project, the Levee Board passed resolutions of “appropriation” and/or informed the plaintiffs in the original class action that their lands would be taken and that they would receive no more than the assessed value for those portions appropriated lying landward of the levee, no compensation for lands lying riverward of the levee and no severance damages. Plaintiffs then brought this class action, for injunctive and declaratory relief and asserting an action of inverse expropriation actively seeking and suing for redress as to all property taken or damaged by the Levee Board without proper exercise of expropriation.

Thereafter, several exceptions were filed by the Levee Board. On October 4, 1978, pursuant to a motion made by the plaintiffs in the original petition, the district court rendered an ex parte order certifying the suit as a class action and ordering that notice be given to all class members by mail and by publication. By separate order of the same date, the Levee Board was ordered to show cause why the ex parte order should not be affirmed and confirmed. Defendant filed additional exceptions, and on October 17, 1978, a hearing was held on all pending motions and exceptions. Judgment was rendered overruling the majority of the Levee Board’s exceptions and ordering that the certification of the action as a class action be maintained. The Levee Board filed two applications for writs, one directed primarily toward the propriety of the granting of the class action and one toward the propriety of the suit as an action for declaratory judgment. We granted writs primarily to review the class action issue and determined that the class action was not allowable in this case for numerous reasons, concluding that the values of effectuating substantive law, judicial efficiency and individual fairness would not be served by allowing this action to proceed as a class action. Pillow v. Board of Commissioners for the Fifth Louisiana Levee District, 369 So.2d 1172 (La.App. 2d Cir.1979) writ denied 373 So.2d 525 (La.1979). We ruled only on that issue and specifically noted that no other issue other than the allowance of the class action was considered or ruled upon in our opinion. The case was remanded for further consistent proceedings.

On June 9, 1980, the plaintiffs in the original Class Action filed an Amended Petition transforming the class action seeking declaratory relief to an ordinary proceeding seeking just compensation and damages, including the fair market value of property taken, appropriated, used or destroyed for levee or levee drainage purposes and for all damages to the full extent of the losses occasioned by the taking, appropriation, use or destruction of plaintiffs’ property, including interest, attorneys’ fees, experts’ fees and all costs.

Plaintiffs then proceeded to particularize the claims of each of the plaintiffs or groups of plaintiffs. For reasons that will be explained more fully later in this opinion, we concern ourselves only with the particular claims of the Pillows.

The Pillows alleged that they were the owners of a certain tract of land in Madison Parish and that their property was “appropriated” by the Levee Board on April 13, 1978; May 24, 1978; and June 21, 1978. They further alleged that pursuant to the “appropriations” the following land was actually taken:

1) 70 acres cultivatable land on North End-Riverside of levee;
2) 7 acres wood and waste land North End-Riverside of levee;
3) 6.68 acres cultivatable land on landside of levee on North End;
4) 30 acres wood and waste on South End-Riverside of levee; and
5) 9.474 acres on South side of Placeland-side of levee.

Finally, they asserted a claim for damages, attorneys’ fees, experts’ fees and costs as well as injunctive and other relief.

On September 8, 1980, the Levee Board filed its peremptory exceptions of no cause and/or no right of action which were amended and supplemented on October 27, 1980.The original exceptions of no cause of action claimed that the petition failed to state a cause of action under the exsisting law because it failed to allege the property was assessed for taxes in the preceding year and the amount of the assessment.

After a hearing on these exceptions on November 9, 1980, the trial court referred certain of the exceptions to the merits. The Levee Board immediately thereafter filed writs through this court to the Louisiana Supreme Court. On January 16, 1981, the Supreme Court ordered the trial court to rule on the exceptions of no cause of action prior to trial. On January 29, 1981, the trial court overruled the exceptions. Writs taken in response to this ruling were denied by this court and the Supreme Court.

On March 20, 1981, plaintiffs filed a Motion to Sever the Pillow claim from the other pending claims and to continue indefinitely the remainder. An order was signed on the same date severing the Pillow claim and fixing it for trial on April 27, 1981.

On March 23, 1981, the Levee Board filed a Motion for Continuance based on the resignation of one of its counsel from the Attorney General’s office. That particular attorney was allowed by ex parte motion to withdraw from this cause on March 23, 1981.After a hearing, this motion was denied.

On March 26, 1981, new counsel for the Levee Board enrolled who on March 27, 1981, filed a Motion for Continuance which was fixed for hearing on March 30, 1981. After the hearing, the trial court again denied the motion which ruling was brought before this court on the Levee Board’s application for writs and denied. The Supreme Court again denied writs.

Thereafter, trial commenced on April 27, 1981, and continued until May 1, 1981. On March 8, 1982, the trial court in lengthy written reasons for judgment found that Act 314 of 1978 had granted substantive rights to the Pillows for fair market value for their land, found that none of the land taken was batture, found that the land on the Southernmost portion of the Pillows’ property was not riparian, found that an “inverse appropriation or expropriation suit” was proper in this case, determined the acreage of the actual taking, and assigned values to the corresponding parcels taken along with severance damages, attorneys’ fees, experts’ fees, interest and costs.

Judgment in accordance with these reasons was signed and filed on March 17, 1982. A motion for new trial was denied resulting in this appeal in which the Levee Board assigns the following errors for our consideration:

1) The trial court erroneously overruled the amended and supplemental peremptory exception of No Cause of Action dated October 22, 1980 which alleged that the plaintiff/appellee had failed to state a cause of action under the existing law as of the institution of suit by failing to allege that the property was assessed for taxes in the preceeding year and the amount of such assessment;
2) The trial court abused its discretion by refusing to grant defendant/appellant a continuance of the trial date on March 30, 1981, despite the withdrawal from the case by appellants’ two previous counsel only four weeks prior to the trial date;
3) The trial court was incorrect in holding that Act 314 of 1978 was not superseded by Act 676 of 1979, which amended the provisions of La.R.S. 38:281 et seq. by deleting language therein which would have applied the amended provisions of La.R.S. 38:281 to suits pending as of July 10, 1978;
4) The trial court improperly calculated the amount of property actually taken by the defendant/appellant as well as the value thereof;
5) The trial court awarded an amount of attorneys’ fees based upon a percentage of the amount of the judgment awarded instead of basing the award of attorney’s fees on an amount calculated to compensate for reasonable attorneys’ fees actually incurred by the appellees.

ASSIGNMENT OF ERROR NO. 1

The Levee Board first contends that the trial court erroneously overruled its amended and supplementary peremptory exception of no cause of action which alleged that plaintiffs had failed to state a cause of action under the existing law as of the institution of .this suit by failing to allege that the property was assessed for taxes in the preceding year and the amount of such assessment.

Immediately following the trial court’s adverse ruling, the Levee Board applied to this court for writs. After due consideration we denied the writs stating:

The application does not justify the exercise of our supervisory jurisdiction for the reason that the petition alleges a cause of action.

The Supreme Court unanimously denied writs.

As of July 6, 1978, the date of the filing of the original petition in this proceeding, under the law existing at that time, a petition in an inverse appropriation suit such as the one filed in the instant proceeding in order to state a cause of action had to allege that the property taken was assessed in the amount of its assessed value for the preceding year. However, on July 10, 1978, Act 314 of 1978, infra, came into effect. Thereafter, on June 9, 1980, plaintiffs amended their suit to allege their entitlement to market value compensation under the applicable act. For reasons discussed more fully in connection with Assignment of Error No. 4, the change in the law by the 1978 Act coupled with plaintiffs’ amended petition cured the earlier failure to state a cause of action. Therefore, the trial court’s ruling in this respect was not erroneous.

ASSIGNMENT OF ERROR NO. 2

The Levee Board next contends that the trial court abused its discretion by refusing to grant a continuance of the trial date despite the withdrawal of one of its attorneys of record only four weeks prior to trial.

This identical argument has also formerly been considered by this court in our denial of the Levee Board’s writ application wherein we stated:

Application does not justify the exercise of our supervisory jurisdiction. The trial judge did not abuse her discretion in denying the continuance.

The Supreme Court thereafter unanimously denied writs.

La.C.C.P. Art. 1601 vests a trial court with great discretion in determining whether or not to grant a continuance in a matter pending on its docket. It is noteworthy that the instant case had been pending for nearly three years prior to the trial date, and that only one of the Levee Board’s attorneys of record had withdrawn. The Levee Board had almost five weeks to secure additional counsel in preparation for trial, and in fact, did secure additional counsel four weeks prior to trial. The trial court did not abuse its discretion in its denial of the continuance.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, the Levee Board contends that the trial court was in error in holding that Act 314 of 1978 was not superseded or abated by Act 676 of 1979, the latter act amending La.R.S. 38:281 et seq. by deleting language which would have applied the amended provisions of La. R.S. 38:281 to suits pending as of July 10, 1978.

In order to properly address and analyze this assignment of error, it is necessary to briefly trace the law relating to appropriations for levee purposes as it has existed during the pendency of this suit. In our former ruling on the applicability of the class action to this proceeding, we stated:

Riparian property (property adjacent to a navigable stream) is subject to the levee servitude (an ancient servitude codified in Civil Code Article 665) and may be appropriated (as distinguished from expropriated) for levee purposes, if the property was riparian when severed from the public domain and if the property is within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes. Use of property subject to the levee servitude for levee purposes is not a taking of private property for which compensation is due under either the Louisiana or Federal Constitutions, any compensation provided for by Louisiana constitutional or statutory law being a mere gratuity. The rationale of decisions upholding the constitutionality of appropriation for levee purposes is that the levee servitude was reserved to the public at the time riparian property was severed from the public domain and that title to such riparian property is held subject to the servitude. Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896); Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749 (1956); Dickson v. Board of Com’rs of Caddo Levee Dist., 210 La. 121, 26 So.2d 474 (1946); Deltic Farm and Timber Co., Inc. v. Board of Commissioners for the Fifth Louisiana Levee District, 368 So.2d 1109 (La.App. 2d Cir.1979); and numerous other cases cited in the foregoing decisions.
Article 16, § 6 of the Louisiana Constitution of 1921 provided for payment for lands used or destroyed for levee purposes at a price not to exceed the assessed value. Article 6, § 42 of the Louisiana Constitution of 1974, which went into effect at midnight on December 31, 1974, provides that lands and improvements actually used or destroyed for levee drainage purposes shall be paid for as provided by law. Article 14, § 32 of the 1974 Constitution provides that the provisions of Article 16, § 6 of the 1921 Constitution shall be continued as a statute, subject to change by the Legislature, and the amount of compensation therein required to be paid for property used or destroyed for levee or levee drainage purposes shall be paid as provided in that Section until the Legislature enacts a law to effectuate Article 6, § 42 of the 1974 Constitution.
Act 314 of 1978, effective July 10,1978, provides that all lands and improvements hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for at fair market value to the full extent of the loss and just compensation for both the land and improvements taken or destroyed and for damages suffered by reason thereof shall be paid to the owner. The Act further provides that the owner shall be compensated as provided in the Act only when and to the extent that the Legislature, the Levee Board or the federal government appropriates the funds therefor. The Act provides that the compensation defined therein shall apply to all lands and improvements taken, damaged or destroyed after the effective date of the Act and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.
Act 113 of 1975, enacting Louisiana R.S. 38:301 through 301.45, effective September 12, 1975, provides a procedure for expropriating property needed for levee purposes whenever any levee district cannot appropriate or amicably acquire such property. The statute requires the filing of a suit and the deposit into court of the estimated full extent of the owner’s loss for the expropriation or the damage caused by the taking.

Act 314 of 1978 provides in pertinent part:

A. -The levee boards of this state, Orleans Parish excepted, may construct and maintain levees, levee drainage, and do all other things incidental thereto. The levee boards may do all drainage work incidental to or made necessary by the construction of the levee system in this or adjoining states.
B. All lands and improvements, Orleans Parish excepted, hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for fair market value to the full extent of the loss, and just compensation for both the land and improvements taken or destroyed and for damages suffered by reason thereof, shall be paid to the owner or into the court for his benefit.
The measure of compensation for lands and improvements taken or destroyed for levee and levee drainage purposes shall be the fair market value of the property taken or destroyed before the proposed taking of the property or construction of the levee or the levee drainage facilities without considering any change in value caused by the construction of the levee or the levee drainage facilities. The measure of damages, if any, to the remaining property of the owner by reason of the taking or destruction of a portion of his property is determined on a basis of immediately before and immediately after the taking, destruction, or the construction of the levee or the levee drainage facilities, taking to consideration the effects of the completion of the project in the manner proposed or planned.
The owner shall be compensated as provided in this Act only when and to the extent that the Legislature, the levee board or the Federal government appropriates the funds therefor.
The compensation defined herein shall apply to all lands and improvements taken, damaged or destroyed for levee and levee drainage pourposes after the effective date of this Act, and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.

Act 676 of 1979 provides in pertinent part:

A. The levee boards of this state may construct and maintain levees, levee drainage, and do all other things incidental thereto. The levee boards may do all drainage work incidental to or made necessary by the construction of the levee system in this or adjoining states.
B. All lands and improvements hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for at fair market value to the full extent of the loss.
The measure of compensation for lands and improvements taken or destroyed for levees and levee drainage purposes shall be the fair market value of the property taken or destroyed before the proposed use of the property or construction of the levee or the levee drainage facilities, without considering any change in value caused by the construction of the levee or the levee drainage facilities. The measure of damages, if any, to the remaining property of the owner by reason of the use or destruction of a portion of the property is determined on a basis of immediately before and immediately after the use or destruction of the property for levee drainage construction taking into consideration the effects of the completion of the project in the manner proposed or planned.
The owner shall be compensated as provided in the Subsection only when and if, in its discretion the Louisiana Legislature, the levee board or the federal government appropriates the funds therefor.
The compensation defined herein shall apply to all lands and improvements appropriated, used or damaged for levees and levee drainage purposes after the effective date of this Act, and to lands appropriated, used or damaged for levees and levee drainage purposes after July 10, 1978.
However, nothing contained in this Subsection shall apply to batture or to property, the control of which is vested in the state or any political subdivision for the purpose of commerce.
“Batture” as used in this Section shall have the same meaning as that term was defined by the courts of this state as of the effective date of the Louisiana Constitution of 1974.

It appears from the Levee Board’s brief and argument that it is willing to concede that the Pillows would have been entitled to receive fair market value compensation for the property taken as well as damages under the 1978 Act which expressly provided that it applied to suits pending as of July 10, 1978. [This suit being filed July 6, 1978 was pending on July 10,1978.] It contends, however, that the 1979 Act which made fair market value compensation applicable to property “appropriated, used or damaged for levee and levee drainage purposes after July 10, 1978,” omitting the language relative to suits pending was procedural or interpretive legislation, resulting in Pillow’s claim for fair market value compensation and damages under the 1978 Act being abated. It further contends that the amending provisions of Act 314 of 1978 regarding the applicability of those provisions were procedural in nature and therefore subject to further amendment by Act 676 of 1979.

In support of its position, the Levee Board relies on the recent case of Terrebonne v. South Louisiana Tidal Water Control Levee District, 414 So.2d 805 (La.App. 1st Cir.1982). In Terrebonne, plaintiffs filed a suit for declaratory judgment to declare invalid an appropriation of land owned by plaintiffs by the defendant Levee District by resolution of November 4, 1975. The appropriations were made for a right of way for a hurricane protection levee constructed for flood control of lands along the lower section of Bayou Lafourche in Lafourche Parish. Subsequent to the appropriation of the tracts in question, the Levee District tendered the previous year’s assessment value of the property pursuant to Louisiana Constitution of 1974, Art. VI, § 42 and Louisiana Constitution of 1921, Art. XVI § 6 which tender was returned by plaintiffs who then filed this suit on April 25, 1977. Therefore, the suit was pending on July 10, 1978. Plaintiffs contended that Act 314 of 1978 expressly set out firm substantive rights in their favor and that to apply Act 676 of 1979 retrospectively so as to retract the substantive rights granted by the former act would be to impair vested right unconstitutionally.

The Terrebonne court in a split decision upheld the trial court and held that Act 314 of 1978 mandated the payment of fair market value in situations where lands and improvements were actually used or destroyed for levees in an attempt to effectuate Article VI § 42 of the 1974 Constitution. The majority conceded that in this respect it did establish substantive rights. However, the majority then went on to conclude that the retroactive effect of Act 314 of 1978 on pending suits in expropriation or appropriation cases is not a substantive right but rather a procedural device concerned with the application of the Act itself. The majority specifically held that because Act 314 of 1978 applied the substantive provisions of the Act to pending appropriation suits, the retroactivity provision was procedural in nature. The majority then went on to hold that Act 676 of 1979 which deleted the provision relating to pending appropriation suits was interpretive legislation which did not create new rules but merely established the meaning which Act 314 of 1978 had from the time of its enactment and accorded the “interpretive” legislation retrospective effect. They further concluded that the “procedural” portion of Act 314 did not create vested rights for claimants whose appropriation suits were pending as of July 10, 1978. They finally concluded that because of the deletion by Act 676 of the retroactive application of the “substantive” portions of Act 314 to pending suits, the proceeding filed by Terrebonne seeking fair market value under Act 314 was abated. However, we note with interest Judge Shortess’ dissent to the effect that Act 314 by its express language gave plaintiffs the right to seek full market value for their land because their suit was pending on July 10, 1978, a right which he characterizes as substantive in nature rather than remedial of procedure. He concludes that Act 676 of 1979 could not take away that substantive right.

We respectfully disagree with the rationale underlying the majority holding in Ter-rebonne and decline to follow it because we conclude that it is based upon an erroneous application of the law and the jurisprudence of this state. To follow the decision in Terrebonne, would further emasculate the Act passed in 1978 which was designed and created specially for the class of landowners in this state who were subject to having their property taken for public purposes without compensation. We find that the Pillows were among that class of people whom the legislature sought to protect in its enactment of Act 314 of 1978.

We concede that Act 676 of 1979 did amend portions of Act 314 and further that it eliminated any reference to takings occurring prior to July 10, 1978. We conclude, however, that the elimination of that provision is of no moment to this decision because under Act 314 the substantive right to those parties so identified and classified had already vested. Therefore, Act 676 cannot be construed in any form or fashion to retroactively take away that vested right to be paid fair market value to those persons with suits pending as of July 10, 1978. Even if the act expressly provided that it was to be applied retroactively [which it does not], it cannot constitutionally be applied in such a manner to disturb vested rights.

We therefore hold that Act 314 of 1978 clearly vested in the Pillows, whose suit was pending on July 10, 1978, the substantive right to be paid fair market value for their property which was appropriated by resolution and notice prior to July 10, 1978. Under the 1978 Act they had a vested right which could not be constitutionally divested by Act 676 of 1979.

The cause of action and its elements [here compensation for fair market value granted to those with suits pending on July 10, 1978] are clearly substantive. It is settled that substantive laws are nonetheless substantive because they apply to facts occurring prior to their enactment so long as they have the effect of creating, defining, or regulating rights. See State v. Alden Mills, 202 La. 416, 12 So.2d 204 (La.1943); Churchill Farms, Inc. v. Louisiana Tax Commission, 338 So.2d 963 (La.App. 4th Cir.1976).

La.R.S. 1:2 which provides that “No action of the Revised Statutes is retroactive unless it expressly so states is authority for the retroactive application of Act 314 to the Pillow claim. See also Marston v. Red River Levee and Drainage District, 632 F.2d 466 (5th Cir.1980).

Our finding that Act 314 of 1978 accorded retrograde substantive rights to Pillow as a member of its applicable class obviates any necessity for further discussion or interpretation of Act 676 of 1979 and its applicability to the instant case because it cannot be interpreted in any respect constitutionally to divest Pillow of vested rights under La. Constitution Article I § 23 (1974) and the 14th Amendment and Article I § 10 of the United States Constitution. It is well settled that where an injury has occurred for which an injured party has a cause of action, such cause of action- is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2, 366 So.2d 1381 (La.1978). Were a court to give meaning to a later amending statute doing away with a vested cause of action, it would be violating the Constitution by giving an unconstitutional interpretation to the statute. Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir.1977); Churchill Farms, Inc. v. Louisiana Tax Commission, supra.

Counsel for Pillow also strenuously argues that notwithstanding the applicability of Act 314 of 1978 to the Pillows’ claim, the Pillows would also be entitled to fair market value compensation for their property under the provisions of La.R.S. 38:301 et seq. Because of our holding regarding the applicability of Act 314 of 1978, we preter-mit any discussion of the applicability of La.R.S. 38:301 to this ease.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, the Levee Board contends that the trial court erred in calculating the amount of property actually taken as well as the value thereof. It is further contended that the award of damages exceeded the range of damages presented by expert testimony and that there was not sufficient evidence presented to support the highest and best use determination made by the trial court and its award of severance damages.

In order to properly address the issues presented in this assignment of error, it is necessary that we first describe in some detail the affected property and its characteristics.

The property made the subject of this suit and depicted in the following map is known as Willow Glenn Plantation and is located in Madison Parish approximately 14 miles southeast of Tallulah and 3.5 miles west of Vicksburg, Mississippi. It is described as a medium sized cotton plantation with a gross acreage of approximately 792 acres. As depicted by the map, the property is somewhat rectangular in shape and traverses a peninsula of the Mississippi River causing it to be bounded on both its North and South boundaries by the river.

Madison Parish is an agriculturally oriented community which includes several small towns and the city of Tallulah. The parish has the advantage of its location on the Mississippi River as well as the location of Interstate Highway 20, the region’s ma-. jor east-west traffic artery. There has been significant activity as a result of recent industrial expansion plans along the Mississippi River in the parish which tend to evidence positive signs for the parish which has had relatively slow economic growth over the past several decades.

Willow Glenn is within a neighborhood which is agriculturally oriented. It has seen a fairly large increase in land values over the last several years. Sandy loam soil types in the area are very rich for the production of numerous crops and are particularly well suited for cotton production. Access to the plantation is obtained easily over the Delta Interchange with Interstate Highway 20 and U.S. Highway 80, both running through the tract in an east-west direction.

At the time of the taking made the subject of this suit, Willow Glenn was a thriving cotton plantation producing an above average yield of cotton per acre. While some of the plantation’s success must be attributed to the management of Dudley Pillow, Jr., the particular tract of land is very fertile and productive.

In 1978, at the request of the U.S. Corps of Engineers in connection with its levee enlargement project, the Levee Board took in excess of 100 acres of land belonging to the Pillows to enlarge the levees on both the north and south ends of the property. The size of the already existing levee was increased greatly and huge borrow pits were dug to provide the dirt for the levee’s expansion.

The Levee Board contends that the acreage calculations made by the trial court in connection with the northernmost taking on the river side should be re-computed by this court because of an error made in calculation. This argument is addressed to a certain 75.4 acre tract identified by the surveyor, James E. Morse. Morse calculated the various acreages actually taken by the use of scale checked aerial photography, a method accepted by the engineering profession as accurate. The areas actually taken as described by Morse are:

1) 75.4 acres taken for borrow pits on the north end of the tract lying riverside of the levee [This is the area complained of at this point];
2) 10.8 acres taken for levee enlargement and berm on the north end of the tract lying landside of the levee;
3) 9.474 acres taken for levee enlargement or berm on the north end of the tract lying landside of the levee; and
4) 12.0 acres taken for levee enlargement or berm on the south end of the tract lying riverside of the levee.

Although counsel for the Levee Board questioned Morse at trial about the accuracy of these measurements, it is noteworthy and the trial court noted that the Levee Board offered no evidence to contradict his calculations nor did it offer the court any better measurement. Thus, we conclude the trial court was not in error in accepting his computations in arriving at the acreage actually taken and finding that 75.4 acres were taken for borrow pits on the north end of the property on the riverside.

The Levee Board also contends that the trial court erred in awarding damages which exceeded by $13,655 the highest total values of damages assigned by any of the three appraisers. It argues that those findings amount to a substitution by the trial court of its judgment for that of the experts as to the upper limits of damages which is prohibited. We disagree.

Three appraisals were available for the trial court’s consideration, two offered on behalf of Pillow and one offered on behalf of the Levee Board. Pillow’s appraisers testified at trial and by stipulation of the Levee Board’s appraiser’s report was submitted for the trial court’s consideration. Each of the appraisers assigned different values to the different portions of the property taken.

Charles E. Wilkes, who prepared the appraisal report for the Levee Board assigned the following values to the property actually taken:

Land Side of Levee: . 11.3 Acres at $1,250 per acre. $ 14,125.00
River Side of Levee:. 80 Acres at $2,350 per acre. 188,000.00
Total Compensation Item # 442-R-A $202,125.00
Land Side of Levee: . 9.29 Acres at $1,250 per acre. 11,612.50
River Side of Levee:. 11.6 Acres at $150 per acre. 1,740.00
Total Valuation Item $436-R — A. 13,352.50
Value of Improvements Taken. -0-
Total Value of Property and Improvements Taken. 215,477.50
Rounded to $215,478.00

The following values were assigned by William P. Williams, one of the Pillows’ appraisers:

North riverside (75.4 acres):
62.9 ac. at $3,250 per ac. ($3,500 per ac. less residual value of $250) $204,425.00
12.5 ac. at $750 per ac. ($1,000 per ac. less residual value of $250) 9,375.00
North landside:
10.8 ac. at $2,250 per ac. ($2,500 per ac. less residual value of $250) 24,300.00
South landside:
9.474 ac. at $1,550 per ac. ($1,800 per ac. less residual value of $250) 14,684.70
South riverside:
12.0 ac. at $350 per ac. ($600 per ac. less residual value of $250) 4.200.00
TOTAL VALUE OF LAND TAKEN $256,984.70

Malcolm C. Sevier, the other appraiser who testified on behalf of the Pillows, assigned the following values to the land actually taken:

North Riverside 75.4 acres:
57.0 ac. at $3,100 per ac. ($3,400 per ac. less residual value of $300) 176,700.00
18.7 ac. at $300 per ac. ($600 per ac. less residual value of $300) 5,520.00
North Landside:
10.8 ac. at $3,100 per ac. ($3,400 per ac. less residual value of $300) 33,480.00
South Landside:
9.474 ac. at $1,000 per ac. ($1,200 per ac. less residual value of $200) 9,474.00
South Riverside:
7.7 ac. at $250 per ac. ($450 per ac. less residual value of $200) 1,925.00
4.3 ac. at $250 per ac. ($450 per ac. less residual value of $200) 1.075.00
TOTAL VALUE OF LAND TAKEN $228,174.00

After hearing all of the evidence, the trial court assigned the following values as to the land actually taken:

Number of Number of Acres Dollars Assigned

62.9 acres of north riverside of the levee at $3,250 per acre (being $3,500 per acre less $250 per acre residual value) $204,425.00 (per Mr. Williams)
12.5 acres north riverside of the levee at $750 per acre (being $1000 per acre less $250 per acre residual value) 9,375.00 (per Mr. Williams)
10.8 acres north end landside of the levee at $3,100 per acre (being $3,400 per acre less $300 per acre residual value) 33,480,00 (per Mi. Sevier)
12 acres on the south end riverside of the levee at $350 per acre (being $600 per acre less $250 per acre residual value) 4,200.00 (per Mr. Williams)
9.474 acres on the south end landside of the levee at $1,550 per acre (being $1800 per acre less $250 per acre residual value) 14,685.70 (per Mr. Williams)
TOTAL VALUE OF PART TAKEN $266,164.70

It is apparent from the foregoing, that the trial court accepted certain portions of the testimony of Williams and one portion of the testimony of Sevier in arriving at its valuation of the property actually taken. It obviusly chose to not accept the values ascribed to any of the parcels by Wilkes. The trial court’s award as to each separate portion or tract was based on competent opinion evidence; therefore, it cannot be said to have substituted its opinion for the opinions of the experts. Because the property taken was composed of a number of different parcels and types of land, we find that such a determination was not manifestly erroneous nor was it an abuse of discretion.

Lastly, in connection with the award of damages, the Levee Board argues that the trial court’s finding of highest and best use for industrial purposes was erroneous, urges acceptance of its appraisers values and urges rejection of any severance damages. The Levee Board correctly recognizes that in order for us to overturn such findings of fact we must find that the trial court was manifestly erroneous. The value of expropriated property is solely a question of fact and such a finding is accorded the same weight as any other finding of fact. Louisiana Resources Co. v. Greene, 406 So.2d 1360 (La.App. 3d Cir.1982). Thus, the manifest error rule applies. When conflicting estimates on the question of value are presented, the appellate court will uphold the trier of fact unless a determination of that value is demonstrated to be obviously or manifestly erroneous. Southern Natural Gas Co. v. Sutton, 406 So.2d 669 (La.App. 2d Cir.1981). Furthermore, the trial court can give whatever weight it deems to be appropriate to any and all witnesses in making the factual determination of value. State, Dept. of Highways v. Society for the Propagation of the Faith, 321 So.2d 388 (La.App. 1st Cir.1975). Finally, when a valuation is supported by the evidence, it cannot be clearly erroneous. State, Department of Highways v. Ramano, 316 So.2d 129 (La. App. 1st Cir.1975).

All three appraisers agreed that the property lying riverside on the North end of the Pillow tract had added value as potential industrial property. However, Williams and Sevier felt that the property landside of the levee on the North end of the tract also had added value for industrial, commercial, and subdivision purposes while Wilkes valued that property for agricultural purposes. Each of the appraisers used a market data or comparable land sales approach in arriving at final values and the highest and best use. It is obvious again that the trial court chose to again reject the analysis and opinion of Wilkes.

While the award for the property actually taken is somewhat on the high end of the spectrum, we conclude that there is a sufficient basis in the record to support such an award. The trial court was not manifestly erroneous in its total award of $266,164.70 for the value of the property actually taken because the values established by Williams and Sevier are within a reasonable range.

However, a more serious problem is presented with regard to the award of severance damages. Severance damages are those damages to the remaining property caused by the use to which the property taken has been put; it is well settled that they are compensable. Central Louisiana Electric Co. v. Covington & St. Tammany Land & Improvement Co., 131 So.2d 369 (La.App. 1st Cir.1961). These damages relate to two parcels of land, one 24.9 acre strip of land located north of the levee and one 169.5 acre parcel of land located between the north levee and the railroad.

The first strip is a narrow strip of land lying adjacent to the river on the northside which comprises 24.9 acres and has a usuable average depth of approximately 300 feet. It is separated from the remainder of the property by borrow pits and its only access is a narrow dirt road between two of the borrow pits. Williams and Sevier were of the opinion that the insufficient dept of this long, narrow strip of land after the taking rendered it useless as an industrial site because of its elongated, narrow shape and its limitation of access. Williams was of the opinion that of the remaining 24.9 acres, 20.1 acres had been reduced from industrial potential to limited access farm land and had sustained damage of $2500 per acre. It was also his opinion that the remaining 4.8 acres sustained damage of $750 per acre making the total damage to the north remainder adjacent to the river $42,330. Sevier considered the entire 24.9 acres as being reduced to one-half its previous value or damaged in the amount of $53,850. Even Wilkes admitted that first indications might lead a reasonable person to assume that this is an insufficient depth for industrial use although he concluded ultimately that the remaining strip suffered no damages.

The trial court fixed the damages for this particular remainder at $2000 per acre of $49,800. Even though this award may be slightly high, we are not prepared to hold that it is clearly erroneous because the record supports a finding that this particular tract of land had diminished ability to compete with other potential industrial sites because of its peculiar elongated shape and narrow depth bordered on both its north and south perimeters by water, i.e., the river and the borrow pits.

Williams and Sevier were also of the opinion that the 169.5 acre tract lying between the north levee and the Illinois Central Gulf Railroad had been damaged. Their reasoning was that prior to the taking this area had excellent access to river frontage and would have been desirable for a plant site or for residential and commercial development in conjunction with a riverside development. It was the opinion of Sevier that this tract was damaged to the extent of $600 per acre or $101,700. Williams was of the opinion that it was damaged to the extent of $500 per acre or $84,750. Wilkes was of the opinion that it had not been damaged at all because it was still susceptible of use for agricultural purposes.

The trial court awarded damages to this particular tract in the amount of $550 per acre or $93,225. Our review of the record in regard to this award leads us to conclude that the trial court was clearly wrong in the amount of the award of severance damages for this particular tract. This tract continues to be of sufficient size for either commercial or industrial development. It continues to have access to Interstate 20 at the Delta Interchange, to U.S. Highway 80 and the Illinois Central Gulf Railroad. There is still access to the river, although it is admittedly diminished. Weighing all of these factors, we conclude that such an award in this instance is excessive because it was not proven to a legal certainty that the use to which the property taken has been put has diminished or decreased the market value of this particular tract to this degree.

We are not convinced from our review of the evidence that this property cannot still be used for commercial, industrial, and/or residential purposes in the future. However, we recognize that its use has been somewhat diminished for industrial purposes because of its limited access to the river. We conclude that $100 per acre will adequately compensate for this dimúnition. Because the trial court was clearly wrong in its finding in regard to this particular award of severance damages, we amend the judgment to decrease the severance damages for this particular tract to $100 per acre or $16,950.

ASSIGNMENT OF ERROR NO. 5

The Levee Board finally contends that the trial court erred in awarding an amount of attorneys fees based on a percentage of the judgment instead of fixing a reasonable fee. It is additionally contended that the trial court was in error in allowing interest on attorneys’ fees which award itself was based partially on interest on the judgment.

La.R.S. 13:5111 provides for the assessment of attorneys’ fees in this case and states:

A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as part of the costs of court, such sum as will, in the opinion of the court compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.
B. The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisiana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12, 1975. [Emphasis added.]

The portion of the trial court’s judgment complained of in relation to this assignment of error reads as follows:

. .. together with thirty-three and one third per cent (33V3%) of the principal and interest thereon until paid as attorneys’ fees, plus twelve per cent (12%) per an-num interest until paid on the attorneys’ fees due as of the date of the signing of this judgment, and for all other costs of these proceedings.

The Levee Board argues that a reasonable interpretation of “actually incurred” would pr- elude the award of a percentage of the recovery because this language of the legislature embodies its attempt to require that the fee be earned by the attorney. It further argues that such an awardable fee should depend on time spent rather than the contractual arrangement between attorney and client. It finally argues that “such proceeding” referred to by the statute would be the case before the court and would not embrace the class action from which this ordinary action was converted.

Our reading of the statute causes us to conclude that it provides for reasonable attorneys' fees actually Incurred. In this case, the fees actually incurred by plaintiffs were one-third of the amount recovered by virtue of a contingent fee contract between the Pillows and their attorneys. Thus, the issue presented for resolution is the reasonableness of the fee incurred in this particular case.

Our careful review of the record makes us painfully aware of the complexity of the issues presented as well as the far reaching implications of their resolution to the Pillows as well as the remaining litigants whose claims were severed for the purposes of this trial. It goes without saying that the ultimate resolution of this case will in effect have a direct bearing on the claims of at least forty other litigants whose property rights have been affected by this particular expansion project of the Levee Board and the U.S. Corps of Engineers. Thus, it was necessary that these issues be thoroughly and painstakingly presented to the trial court for its consideration in this week long trial.

There is no question but that this was done by counsel for the Pillows and was done extremely well. The record reflects that this case was meticulously and thoroughly presented by highly professional, prepared attorneys. Their degree of skill and preparation is certainly reflected in the record.

We are further aware of the extensive pre-trial proceedings, including at least three writ applications to this court and the Supreme Court initiated on behalf of the Levee Board. The record reflects that over 2300 hours were spent by counsel for the Pillows collectively in connection with the litigation. While admittedly this factor alone is insufficient to determine the reasonableness of the fee, it is certainly one of the factors to be considered. Other factors we have considered in evaluating the reasonableness of this fee are the ultimate result obtained, the responsibility incurred, the importance of the litigation, the amount involved, the extent and character of the labor performed, the legal knowledge, attainment and skill of the attorneys, the number of appearances made, the intricacies of facts and law involved, the diligence and skill of counsel, the court’s own knowledge of the case and the ability of the party liable to pay. Guillory v. Guillory, 339 So.2d 529 (La.App. 4th Cir.1976).

After considering all of these factors, we conclude that the trial court’s award of one-third of the award of damages as attorneys’ fees is not unreasonable and will be upheld because in making such an award the trial court did not abuse the great discretion with which it is vested in making such awards and this award was not manifestly excessive. Consolidated Sewerage District of the City of Kenner v. Schulin, 387 So.2d 1369 (La.App. 4th Cir.1980); State, Department of Highways v. Terrebonne, 349 So.2d 936 (La.App. 1st Cir.1977). Even conceding that the Pillows are not entitled to reimbursement for attorneys’ fees incurred as a result of the attempted class action, we conclude that the one-third fee on the principal awarded is reasonable, was actually incurred, and should be maintained.

Although there is nothing in our law which precludes the awarding of attorneys’ fees based on a contingent fee contract, or on a percentage of the amount recovered, we are not prepared to hold and do not hold in this case that in an expropriation case, contingent fees are approved per se. We limit our holding to our finding that under the particular facts and circumstances of this case, that such an award was not unreasonable, clearly wrong or an abuse of the trial court’s wide discretion.

However, we conclude that the award of interest on the attorneys’ fees due is not provided for by La.R.S. 13:5111 and was erroneously awarded. The applicable statute provides that such an award be “as a part of the costs of court.” Powell v. Department of Highways, 383 So.2d 425 (La.App. 4th Cir.1980). It is well settled that interest is not allowable on that portion of a judgment representing costs. DeLizardi v. Hardaway, 8 Rob. 20 (La.1844).

Accordingly, we amend the judgment to delete the interest on the attorneys’ fees.

For the foregoing reasons, the judgment appealed from is amended and the following pertinent paragraphs are recast to read:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiffs, Dudley B. Pillow, Jr., individually and as Trustee of the Dudley B. Pillow Sr. Family Trust; Mrs. Lois Pillow Robertson, as Trustee of the Dudley B. Pillow Sr. Family Trust; and Watson McDonald Pillow as Trustee of the Dudley B. Pillow Sr. Family Trust and against the defendant, Board of Commissioners for the Fifth Louisiana Levee District, for the sum of $332,914.70 together with interest thereon at the rate of seven percent per annum from, July 6, 1978 until September 11, 1980; at the rate of ten percent per annum from September 12,1980 until September 10,1981; and at the rate of twelve percent per annum from September 11, 1981 until paid; together with thirty-three and one-third (33V3%) of the principal or $110,-971.57 as attorneys’ fees to be taxed as costs and for all costs of these proceedings.

As amended, the judgment is affirmed with the costs of this appeal to be divided equally between the parties.

AMENDED, and as amended, AFFIRMED.

      . We note other bases for the exceptions of no cause of action and no cause and/or no right of action but do not address these because the Levee Board has apparently abandoned these exceptions in this appeal.

      . Article XVI § 6 of the Louisiana Constitution of 1921 continued in effect as a statute under the provisions of the 1974 Constitution, Article VI, § 42.

      . A writ application is presently under consideration by the Louisiana Supreme Court in this case.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Henry H. ROY, Jr., Plaintiff-Appellant, v. M.P. RASBURY, Sr., Defendant-Appellee.
    No. 15071-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.
    Writ Denied March 11,1983.

      Barham & Adkins by Tommy J. Adkins, Ruston, for plaintiff-appellant.
    Napper, Madden & Rogers by R.H. Madden, III, Ruston, for defendant-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Plaintiff Roy appeals a judgment which fixed the boundary between him and defendant Rasbury along the line of an existing ditch and a fence which had once existed for more than 30 years. The boundary fixed by the court is south of a long existing private road known as the Roy Road and is about 15 feet north of the ideal boundary of the litigants.

In four assignments, Roy contends that the trial court erred because there was “no evidence” that Rasbury possessed beyond the ideal boundary to “visible bounds”, that the court appointed surveyor should have been required to file a proces verbal of his survey ór subjected to cross examination, that a new trial should have been granted on Roy’s motion, and that he was wrongly assessed with one-half the court costs. We adopt the detailed reasons assigned by the trial court, which we here summarize, and affirm the judgment.

PROCES VERBAL WAS NOT REQUIRED

Civil Code Arts. 834-837, which once required a court appointed surveyor to file a proces verbal, were repealed and were replaced by CCP Art. 3692. Acts 169, 170, of 1977, effective January 1, 1978. Section 8 of Act 169 expressly provided that its provisions shall apply to all boundary actions existing on the effective date of the Act. The official comments under CCP 3692 state that the formalities required by CC Arts. 834 through 837 are eliminated “as unnecessary”; [and that] the court may regulate the manner in which the surveyor performs his duties. This case was “existing” when Act 169 of 1977 became effective.

The surveyor was not appointed until after the case was tried. Witnesses had testified about the once existing fence and the long existing road and ditch, trees, and other landmarks in the area. In reasons for judgment, the trial court noted that the surveyor was appointed “to survey the .. . ideal boundary line and show pertinent physical features alluded to in testimony." After discussing the evidence and applicable law supporting its determination, the trial court, in its reasons for judgment, then directed the parties to secure from the surveyor a description of the old fence line to be incorporated in the judgment to be prepared and directed that the line would begin at the northeast corner of section 11 and run westerly along the ideal boundary to the point where the fence veers north of the ideal boundary, following the fence until it ends, and then following a straight line projected generally along the south edge of the Roy Road ditch and north of the 28-inch red oak tree shown on the survey and referred to by the several witnesses in the case. A rail fence, which followed the ditch and which ended very near this red oak tree, was removed in 1966.

The litigants did not dispute the ideal boundary nor the existence of the landmarks such as the red oak tree. The trial court essentially described the boundary in the reasons for judgment and appellant does not suggest that the survey is in any way in error, but complains that he did not have the opportunity to cross examine the surveyor. The record does not show and appellant does not suggest that he sought cross examination in the trial court. Under these circumstances, and because we consider that the trial court fixed the boundary in the reasons for judgment, the surveyor performed a mere ministerial duty to the court in following the court’s directions and the boundary set by the court. Appellant Roy was afforded due process. Under the circumstances, we find no error with respect to the manner in which the court used the surveyor. CCP 3693.

THE EVIDENCE

Roy admits that the fence continuously existed for more than 30 years before it was partially removed by Moncrief about 1963 and other parts wtere removed by Ras-bury in 1966. He acknowledges that he and others in the community considered the fence as the boundary between the Roy property and the Rasbury property and that he did not claim ownership or possession south of the fence during its existence. Other witnesses testified that Rasbury had cultivated and mowed up to the fence and had planted flowers and shrubs in the area between the ideal boundary and the fence for more than 30 years. These acts of possession as owner continued after a portion of the fence was removed. Azaleas and other plants are shown on the survey made after trial, here reproduced in Appendix A.

The trial court’s conclusions and findings are well supported by the evidence and we find no error with respect to Rasbury’s possession for more than 30 years as owner.

CC 794 VISIBLE BOUNDS

Notwithstanding that a portion of the fence was removed about 1963, the Roy Road ditch has continued to exist and is a visible bound. The easternmost portion of the fence remains. Witnesses testified that the fence went along the south bank of the ditch. Fences are not the only visible bounds contemplated by CC 794. A ditch, a road, or other such things may be sufficient to 'Support a finding of a visible bound, Coleman v. Henderson, 353 So.2d 1091 (La.App. 2d Cir.1977).

NEW TRIAL

After the trial, Roy sought a new trial on grounds including a claim of newly discovered evidence. CCP 1972. This evidence would have been expert testimony as to the interpretation of two photographs which were introduced during the trial of the case. This is not “new evidence” which “with reasonable diligence” could not have been discovered before or during the trial. Scarbrock v. Fowler, 317 So.2d 285 (La.App. 3d Cir.1975). We find that the trial court was not presented with peremptory grounds for a new trial and that the trial court did not abuse its discretion in otherwise denying Roy a new trial on discretionary grounds.

COSTS

Costs in the trial court were assessed one-half to each litigant. As the losing litigant, who ordinarily is cast with all costs, Roy should not complain. CC 790; CCP 1920. Roy instituted the boundary action in 1977, about 10 years after the rail fence was removed. The trial court and apparently appellee Rasbury thought it nonetheless equitable that costs be assessed in such a manner and appellee does not seek to be relieved of his assessment of one-half. Under these circumstances, we find no error in the cost assessment by the trial court.

CONCLUSION

The judgment appealed is affirmed and costs here are assessed against the appellant.

      . Roy, through his counsel, approved the form of judgment which incorporated as the trial court directed, this described boundary:
      Begin at an iron pin monumenting the corner common to Sections 1, 2, 11 and 12, all in Township 17 North, Range 3 West, Lincoln Parish, Louisiana, as depicted on plat per Judgment recorded in Civil Docket No. 19,-614, records of the Clerk of Cdurt of Lincoln Parish, Louisiana, and from said point of beginning, run North 89 degrees 30 minutes 44 seconds West along the section line common to Sections 2 and 11, as aforesaid for a distance of 65.7 feet, and to an existing fence; thence, follow the meanderings of said fence the following courses and distances:
      North 79 degrees 05 minutes West 5.29 feet; North 88 degrees 22 minutes West 58 feet; South 88 degrees 07 minutes West 25 feet; North 89 degrees 21 minutes West 82 feet; North 89 degrees 55 minutes West 68 feet; North 89 degrees 22 minutes West 103 feet; North 88 degrees 09 minutes West 62 feet; North 86 degrees 36 minutes West 116 feet; North 88 degrees 23 minutes West 67 feet; North 89 degrees 43 minutes West 33 feet, and to an iron pin at the end of the aforesaid existing fence; thence run North 88 degrees 41 minutes 15 seconds West a distance of 576.08 feet, and to the Easterly right-of-way (80-foot wide right-of-way) line of U.S. Highway No. 167, and to the end of this boundary, which end is marked by an iron pin.


author: KLIEBERT, Judge.

text:
    Randall P. MOREL v. Greer Baker, Wife of Randall P. MOREL.
    No. 5-230.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.
    Writ Denied April 5, 1983.
    Louis G. Gruntz, Jr., Jefferson, for plaintiff-appellant.
    Roger I. Dallam, Greenberg & Dallam, Gretna, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

The husband, Randall Morel, was cast in judgment for $150.00 in attorney’s fees on the motion of Greer Baker Morel to compel answers to interrogatories. He was also cast in judgment on a motion for alimony arrearage of $970.32 plus attorney fees of $250.00. The husband perfected this sus-pensive appeal. We reverse in part, amend in part, and as amended, affirm.

After the wife was granted custody of the two minor children of the marriage and awarded alimony and child support, the husband amended his pending petition (filed on August 25, 1981) for separation based on six months living separate and apart to a petition for full divorce based on one year living separate and apart.

Thereafter, the wife directed one interrogatory with eight subsections to the husband. The husband filed an objection to the interrogatory based on its relevancy and his assertion that if he furnished his telephone number it would be used by his wife to harass him. At the time, there was a rule pending against the wife to enjoin her from harassing him at work. The wife then filed a rule to compel the husband to file answers to the interrogatory and for attorney’s fees of $250.00 for prosecution of the rule. On April 16,1981, the date set for the hearing on the motion to compel answers to the interrogatory, the husband filed answers to some but not all of the subsections of the interrogatory. The court directed the husband to answer all of the subsections with the exception of the subsection requesting his residence telephone number and awarded attorney fees of $150.00 to the wife’s attorney.

The husband appeals the award of attorney’s fees citing Louisiana Code of Civil Procedure Article 1469 which reads as follows:

Art. 1469. Motion for order compelling discovery
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) An application for an order to a party or a deponent who is not a party may be made to the court in which the action is pending.
(2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a corporation or other entity fails to make a designation under Articles 1442 or 1448, or a party fails to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
(3) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
Acts 1976, No. 574, § 1.

He argues that Article 1469(4) does not provide for the award of attorney’s fees, where, as here, the motion to compel is granted in part and denied in part. The argument has merit. Code of Civil Procedure Article 1469 does not grant the statutory authority for the award of attorney’s fees, where, as here, the motion to compel answers to the interrogatory is granted in part and denied in part. Rather, under the wording of the article, the court’s authority is limited to “apportionment of the reasonable expenses incurred in relation to the motion”. In the absence of the statutory authority to grant attorney’s fees, the court cannot make an award for them. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978).

Accordingly, the trial judge’s order awarding attorney’s fees of $150.00 for prosecution of the rule to compel filing of the answers to the interrogatory is reversed.

On October 9, 1980, the wife was granted custody of the children with child support of $800.00 per month and alimony pendente lite of $300.00 per month. This judgment made the payments retroactive to the date of filing the petition, i.e., September 8, 1980, and provided for a credit in favor of the husband for any sums paid from that date to the date of rendition of the judgment, i.e., October 9, 1980.

On December 31, 1980, the wife filed a rule to have the husband found in contempt of court, to make past due support payments executory and for attorney’s fees for prosecuting the rule. In her testimony, she claimed an arrearage of $593.00 for September, $441.75 for October and $135.24 for November. The husband responded, contending he had made payments in excess of that required by the judgment and submitted in evidence a computation in support of his contention as follows:

Alimony & Support Due Paid Direct to Wife Paid to Others
September (8-30) 23 days 843.33 9/11/80 $750.00 9/12 (1) $110.24
9/12 200.00 9/30 (2) 233.41
9/30 250.00 9/30 160.22 (3)
October 1100.00 10/15 408.25 10/15 110.24 (1)
10/30 550.00 10/10 31.51 (4)
November 1100.00 11/15 414.76 11/12 110.24 (1)
11/30 550.00 11/12 25.00 (5)
December 1100.00 12/15 550.00
12/31 550.00
$ 4143.33 $4224.01 $ 780.86
NOTES:
(1) Monthly note payment to Jefferson Bank & Trust Company for children’s tuition
(2) Mortgage payment on house-221 Willowbrook Dr., paid to Central Savings & Loan Association
(3) Note payment to Allstate Finance Co. for 1979 Pontiac-used by Greer Morel
(4) Payment to White-Westinghouse for repair of appliance in house-221 Willowbrook Dr.
(5) Payment to Dr. Charles McShane-children’s dentist

By judgment rendered on April 27, 1981, the court made executory past due support payments of $970.32 and awarded the wife’s attorney $250.00 in fees. On appeal, both parties stipulated that the trial judge made a mathematical error in computing an ar-rearage of $970.32 in that he gave an erroneous credit for payments made which resulted in a $300.00 excessive arrearage. Assuming arguendo that we accepted the trial judge’s reasons and judgment under the stipulation- of the parties, the arrearage should thus be reduced to $670.32.

The actual dispute between the parties is whether the children’s tuition, the car note on the car used by the wife, and the note on the house being used by the wife were to be paid out of the support and alimony award totalling $1100.00 a month by the wife, or by the husband, although not provided for by the judgment setting the alimony and support allowance. Apparently the trial judge concluded these payments were to be made by the husband, notwithstanding the fact the wife was using the community house and car, due to the fact that in the rule to make past due alimony and support payments executory he refused to grant credit to the husband for the payment of same. Since the judgment of October 9, 1980 setting the alimony and support payments was not appealed our inquiry is solely into whether the husband had made the alimony and support payments called for by the judgment of October 9, 1980. The trial judge concluded the only payments made by the husband towards the alimony and support judgment were the payments made directly to the wife, excluding the $750.00 payment for the air conditioner repairs made on 9/11/80. We cannot say the trial judge erred in refusing to give credit for the payments made to the third parties by the husband. With the exception of the payment to White-Westinghouse for repairs to the house appliance and the payment to Dr. Charles McShane, these payments were community obligations, payable by the husband and recoverable by him at the time of settlement of the community. See Hartley v. Hartley, 349 So.2d 1258 (La.1977). Additionally, these payments and those to Dr. McShane and to White-Westinghouse were not made pursuant to a court directive or pursuant to an agreement between the husband and the wife. The request of the wife which the husband argues resulted in such an agreement was made for time periods subsequent to the time period in question here. According to the judgment, alimony and support payments were to be made directly to the spouse for her to disburse as she saw fit. In the absence of an agreement or proven request that a portion of the support or alimony payments be made on the wife’s behalf to a third party, the husband cannot claim the payment of same as a credit towards his alimony or support payments. See Hamilton v. Hamilton, 421 So.2d 291 (La.App. 5th Cir.1982). The case of Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir.1979) cited by the husband in support of his position is inapposite to the facts present here and does not support his argument.

Under the provisions of LSA R.S. 9:305, the trial judge had the authority to award attorney’s fees. We cannot say he abused his discretion in awarding attorney’s fees of $250.00.

Accordingly, the judgment for the arrear-age is amended to provide that the amount of the arrearage is $670.32 and as amended is affirmed. Each party to bear his own cost of the appeal.


author: DOUCET, Judge.

text:
    Debra A. ORTEGO, Plaintiff-Appellant, v. Helen ORTEGO, and Avoyelles Trust & Savings Bank, Defendants-Appellees.
    No. 82-350.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writ Denied Feb. 23,1983.

      Preston N. Aucoin and Jules R. Ashlock, Ville Platte, for plaintiff-appellant.
    Nelson M. Lee and Dan McKay and John A. Boatner, Jr., Bunkie, for defendants-ap-pellees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

Plaintiff-Appellant, Debra A. Ortego, brought suit against defendant Helen Orte-go and defendant-appellee, Avoyelles Trust & Savings Bank, in tort for conversion, damages and attorney’s fees. Helen Ortego answered requesting a jury trial. The bank responded with a Motion for Summary Judgment founded upon a written authorization from Debra Ortego instructing the bank to accept the signature of Helen Orte-go on her checking account. The district judge ad hoc granted the summary judgment. Plaintiff appeals. We reverse and remand.

The facts giving rise to this suit occurred after the death of Steven C. Ortego, husband to the plaintiff and son of defendant, Helen Ortego. Mr. Ortego was killed in an automobile accident on October 7, 1981. Prior to his death, Steven Ortego had purchased several insurance policies, designating his wife, plaintiff herein, as beneficiary. It is the proceeds of these policies and the parties’ actions relative thereto that are the subject of the present litigation.

Following her husband’s death, plaintiff decided to move from Bunkie to Sulphur, Louisiana. Before she could leave, however, arrangements had to be made to settle outstanding debts. Accordingly, she paid a nocturnal visit to the home of an employee of defendant bank, Mrs. Sadie Roy, accompanied by her mother-in-law, also named defendant herein, whereat the bank employee executed a handwritten authorization which reads as follows:

The signed authorization was subsequently filed at defendant bank. In furtherance of this authorization, several checks were signed in blank by plaintiff and left with Mrs. Helen Ortego. Mrs. Ortego, mother of decedent, was to pay off the trailer in which plaintiff and her late husband had lived.

Thereafter, checks representing proceeds of life insurance policies with decedent’s wife named as beneficiary, were mailed to plaintiff in care of Mrs. Helen Ortego. Mrs. Ortego deposited these checks, two in the sum of $5,041.85 each and one for $50,-000, on January 11 and 19,1982, respectively, to the account of plaintiff. Immediately after the latter aforesaid deposit, Mrs. Helen Ortego drew a check in the sum of $50,000, payable to herself, on one of the checks signed in blank by plaintiff. Apparently, this is not what plaintiff had intended as the suit herein was filed shortly after it was discovered that the insurance proceeds had been deposited, then drained from plaintiff’s account.

“Defendant bank responded to plaintiff’s petition with a motion for summary judgment supported by the affidavits of bank personnel, Mr. J.L. Cecil, Mrs. Sadie P. Roy, and Mr. Alfred Young. Mr. Cecil, executive vice-president and cashier, stated in an affidavit that he had personal knowledge of signature cards of Debra A. Ortego and Helen Ortego, and the written statement, dated January 7, 1982, signed by Debra Ortego, instructing the bank to accept the signature of Helen Ortego on the checking account of Debra Ortego. Additionally, he examined the following documents and ascribed their signature to plaintiff:

1) Aetna Life & Casualty Company Draft No. 1789624087 payable to Debra A. Ortego in the amount of $5,041.85 dated December 3, 1981;
2) Aetna Life & Casualty Company Draft No. 1789624086 payable to Debra A. Ortego in the amount of $5,041.85 dated December 3, 1981;
3) ‘Deposit Ticket’ on account of Debra A. Ortego evidencing deposit of Aetna Life & Casualty Company Draft Nos. 1789624087 and 1789624086 in the aggregate sum of $10,083.70 to the account of Debra A. Ortego dated January 11, 1982, which was signed by the said Debra A. Ortego;
4) Avoyelles Trust & Savings Bank Check No. 153 drawn against the account of Debra A. Ortego dated Jan. 11, 1982, payable to the order of Helen Ortego in the amount of $10,083.70 which was signed by the said Debra A. Ortego as maker;
5) INA Draft No. LG 03316481 payable to Debra A. Ortego, c/o Helen Ortego in the amount of $50,000.00 dated Jan. 11, 1982;
6) ‘Deposit Ticket’ on account of Debra A. Ortego evidencing deposit of INA Draft No. LG 03316481 in the sum of $50,000.00 to the account of Debra A. Ortego dated Jan. 19, 1982, which was signed by the said Debra A. Ortego; and
7) Avoyelles Trust & Savings Bank Check No. 154 drawn against the account of Debra A. Ortego dated Jan. 19, 1982, payable to the order of Helen Ortego in the amount of $50,000.00 which was signed by the said Debra A. Ortego as maker.”

Cecil considered all signatures to be genuine. His affidavit further states that, in view of facts known to him, the bank at all times acted in good faith and in accordance with its reasonable standards and policies and the intent of plaintiff was to allow such transactions. Affiant also stated his knowledge of LSA-R.S. 10:3-401 through 10:3-407, relative to completion of unauthorized completion of documents, and that the negligence of plaintiff in signing blank checks to Helen Ortego “contributed substantially to the material alterations thereof and/or unauthorized use thereof by Helen Ortego.” His affidavit concludes that plaintiff is precluded as a matter of law from asserting her claim against Avoyelles Trust and Savings Bank.

Sadie Roy’s affidavit recalls the Ortegos’ nocturnal visit to her house on January 7, 1982 whereat she executed the handwritten authorization allowing Helen Ortego to sign on the checking account of Debra Ortego and that Debra Ortego signed the instrument. She further recalls Debra Ortego delivering an unknown quantity of checks, signed in blank to her mother-in-law, while the two were still at her house and her response expressing the dangers of same. Mrs. Roy filed the authorization upon going to work the next day.

Mr. Young’s affidavit recounted Helen Ortego transacting banking business on behalf of her son both before and after his death and specifically recalled her depositing checks involved herein.

Subsequent to her petition and the filing of the affidavits hereinabove, plaintiff filed an affidavit wherein she reasserted the limited scope of Helen Ortego’s authority and that she had no intention of granting her permission to deal with the insurance proceeds involved. Plaintiff further asserted that she had established a new account in Sulphur where she would have cashed the insurance checks which she was to receive. According to her affidavit Helen Ortego’s authority, as expressed at the nocturnal visit with Mrs. Roy, was limited to drawing on the account for the limited purpose of paying off remaining bills and did not extend to depositing checks to her account. Plaintiff maintained that the power of Helen Ortego to write checks was confined to the bank account as it was on January 7, 1982. Plaintiff further averred that “Avoyelles Trust and Savings Bank, with absolutely no authority from anyone, permitted Helen Ortego to endorse affiant’s check, deposit it to affiant’s account, and use one of the presigned checks affiant had given her to draw out the $50,000 and deposit the same to Helen Ortego’s account.” Although not of direct relevance, we note in this regard that Helen Ortego’s answer claims the insurance proceeds were intended as gifts.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Art. 966. Papers supporting the position of the party moving for summary judgment are to be closely scrutinized, while the opposing papers are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A summary judgment is not appropriate when it is based upon affidavits and accompanying pleadings and other documentary evidence to establish subjective facts such as motive, intent, good faith or knowledge. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir.1974), Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir.1969). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubts should be resolved in favor of a trial on the merits. Cates v. Beauregard Elect. Coop. Inc., 328 So.2d 367 (La.1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980). Nor is summary judgment appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence or the judicial determination of subjective facts. Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1st Cir.1970); Smith v. Preferred Risk Mutual Ins. Co., 185 So.2d 857 (La.App. 3rd Cir.1966).

Sections of the Uniform Commercial Code applicable to the case are set forth in Title 10 of La. Revised Statutes, as follows:

§ 3-115. Incomplete instruments
(1) When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed.
(2) If the completion is unauthorized the rules as to material alteration apply, even though the paper was not delivered by the maker or drawer; but the burden of establishing that any completion is unauthorized is on the party so asserting. Added by Acts 1974, No. 92, § 1, eff. Jan. 1, 1975.
§ 3-406. Negligence contributing to alteration or unauthorized signature
Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.
Added by Acts 1974, No. 92, § 1, eff. Jan. 1, 1975.
§ 3-407. Alteration
(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in
(a) the number or relations of the parties; or
(b) an incomplete instrument, by completing it otherwise than as authorized; or
(c) the writing as signed, by adding to it or by removing any part of it.
(2) As against any person other than a subsequent holder in due course
(a) alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;
(b) no other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.
(3) A subsequent holder in due course may in all cases enforce the instrument according to its original tenor, and when an incomplete instrument has been completed, he may enforce it as completed. Added by Acts 1974, No. 92, § 1, eff. Jan. 1, 1975.

There can be no serious dispute but that a genuine issue of material fact exists as to whether the completion of the instruments was authorized and that resolution of this issue in favor of plaintiff would render the alteration material. Thus the question becomes whether plaintiff is precluded from asserting the alteration against defendant bank. We find that a genuine issue of material fact exists as to whether appellee acted in accordance with reasonable commercial standards when it allowed withdrawal of funds totaling thousands of dollars from the account of another, which funds immediately prior thereto had been deposited by one who was not the named payee. Questions exist as to why the check had been channeled through plaintiff’s account, then withdrawn, instead of being directly cashed. Although the bank maintains its actions were in good faith, summary judgment is not the appropriate vehicle for resolution of subjective facts such as good faith. Mecom v. Mobil Oil Corp., supra, Fontenot v. Aetna Insurance Co., supra.

The same can be said of appellee’s assertion that the intent of plaintiff was to provide unrestricted authority to Mrs. Orte-go. In light of the questionable nocturnal meeting whereat a bank employee wrote out an authorization of unspecified scope, we entertain doubts as to what plaintiff’s intentions were. Genuine issues of material fact exist as to whether Mrs. Roy’s actions were in accord with reasonable commercial standards and the intended scope of plaintiff’s grant of authority.

Banks are entrusted with huge sums of money, therefore they are held to the high standard of care imposed upon fiduciaries. Plaintiff is entitled to her day in court to determine whether defendant bank met that standard of care. Whether or not plaintiff is likely to prevail on the merits is irrelevant to our review.

Our research has revealed no Louisiana jurisprudence on point, however, such is not necessary for our resolution of the issue presented. Nevertheless, we note that upon remand, resort to jurisprudence of other states is entirely proper as the purpose of the U.C.C. is, of course, to promote uniformity in commercial transactions among the different jurisdictions. Pargas, Inc. v. Estate of Taylor, 416 So.2d 1358 (La.App. 3rd Cir.1982).

For the reasons assigned hereinabove, the judgment appealed is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The pertinent allegations of plaintiffs petition are as follows:
      “2.
      “The late STEVEN C. ORTEGO, resident of Avoyelles Parish, Louisiana, made the plaintiff, DEBRA A. ORTEGO, the beneficiary of several insurance policies. On October 7, 1981, the said Steven C. Ortego was killed in a highway accident.
      “3.
      “About a month later plaintiff received the payment of one of his policies in the amount of FORTY THOUSAND AND NO/100 ($40,-000.00) DOLLARS. Plaintiff then opened an account at AVOYELLES TRUST AND SAVINGS BANK, henceforth referred to as AVO-YELLES TRUST. She had bank checks printed so that she could draw against this account.
      “4.
      “The plaintiff, pathetically naive and abysmally ignorant in the field of financial affairs, on December 2nd, 1981, issued a check for TWELVE THOUSAND FIVE HUNDRED FORTY SEVEN AND 76/100 ($12,547.76) DOLLARS to pay for the balance due on a trailer bought by herself and her deceased husband. The payee of this check was HELEN ORTEGO, who was supposed to see that the trailer was paid out.
      “5.
      “From this point on, relations between plaintiff and HELEN ORTEGO, the mother of her husband, rapidly deteriorated. Plaintiff was threatened with being sent to the penitentiary for bigamy if she uttered any protest, or “made trouble” for HELEN ORTEGO. From that time to this, the threats of HELEN ORTEGO have terrified the plaintiff.
      “6.
      “Plaintiff then decided to leave Bunkie, but before doing so permanently she and HELEN ORTEGO one night went to the home of a Mrs. Roy, an employee of AVOYELLES TRUST and a friend of HELEN ORTEGO, where some sort of document was drawn up empowering HELEN ORTEGO to draw on plaintiff’s account for the payment of any outstanding bills that might have been incurred by herself and her dead husband. For this purpose plaintiff left with HELEN ORTEGO some of her checks signed in blank. Following this financial arrangement, plaintiff departed from Avoyelles Parish.
      “7.
      “On or about January 11, 1982, an insurance check for TEN THOUSAND EIGHTY THREE AND 70/100 ($10,083.70) DOLLARS made out to DEBRA H. ORTEGO, arrived, posted in care of. HELEN ORTEGO. HELEN ORTEGO never advised plaintiff of this check’s arrival, but took it to AVOYELLES TRUST where she was permitted to endorse and deposit it to the account of DEBRA A. ORTEGO. Lending itself to be used for the conversion, AVOYELLES TRUST permitted HELEN ORTEGO to endorse plaintiff’s check, deposit it to the plaintiff’s account and then let HELEN ORTEGO use one of the plaintiffs checks, signed in blank, to withdraw the money and deposit the TEN THOUSAND EIGHTY THREE AND 70/100 ($10,083.70) DOLLARS to the account of HELEN ORTEGO. The bank knew of no claim which HELEN ORTEGO had on the funds of the plaintiff.
      “8.
      “On or about January 20th, 1982, another check for FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS from INSURANCE COMPANY OF NORTH AMERICA, made out to DEBRA A. ORTEGO, addressed to the plaintiff in care of HELEN ORTEGO, was delivered through the post to HELEN ORTEGO at 603 South Matthew, Bunkie, Louisiana.
      “9.
      “HELEN ORTEGO never advised plaintiff that such a check had been received. Instead she took it to AVOYELLES TRUST where she was again permitted to endorse the check without any authority to do so and deposit it to the account of plaintiff. AVOYELLES TRUST was grossly negligent to have permitted this to happen. Even more unbelievable was AVO-YELLES TRUST simultaneously permitting HELEN ORTEGO, using one of the signed checks left by her by plaintiff, to then draw the entire FIFTY THOUSAND AND NO/100 ($50,-000.00) DOLLARS out of the plaintiffs account and deposit it in her own. AVOYELLES TRUST permitted HELEN ORTEGO to take plaintiffs money as though it were hers by some act of donation. As a matter of fact, AVOYELLES TRUST took upon itself to act as the instrument for bringing about this nefarious conversion.
      “10.
      “Plaintiff knew that she was to have received the FIFTY THOUSAND AND NO/100 ($50,-000.00) DOLLARS and TEN THOUSAND EIGHTY THREE AND 70/100 ($10,083.70) DOLLARS payments on the policies. When she later inquired of HELEN ORTEGO whether these had been sent to her, this inquiry was met with ferocious hostility and threats of sending her to the penitentiary if she persisted in trying to obtain her money. Plaintiff is in mortal dread of her mother-in-law.”

      . Bank employee, Mr. Cecil, himself acknowledged in affidavit that there were material alterations and/or unauthorized use.