text:
    Sandra Holmes, wife of George A. LeBLANC v. George A. LeBLANC.
    No. 5-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Rebecca B. Macke, Metairie, for plaintiff-appellee.
    Melvin Zeno, Marrero, for defendant-ap-pellee.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

Plaintiff, Sandra Holmes LeBlanc, as defendant-in-rule, appeals from the December 15, 1981, judgment of the District Court reducing child support payments from $300.00 to $200.00 per month.

This court need only address one assignment of error, namely that the trial court erred in denying appellant a continuance when appellee failed to produce at trial income records and bank statements in response to subpoenas duces tecum personally served on plaintiff-in-rule and his present wife three weeks prior to the rule date.

LSA C.C.P. art. 1602 states in pertinent part:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; ...” (emphasis added)

In discussing LSA C.C.P. art. 1602, our brothers of the First Circuit stated:

“[1.2] Art. 1602 makes the granting of a continuance mandatory. McCaleb v. Department of Public Safety, 309 So.2d 748 (La.App. 4th Cir.1975). Several conditions must be met, however, before art. 1602 will be applied... That a subpoena has been issued is not alone a sufficient basis to invoke art. 1602. Loicano v. Maryland Casualty Insurance Co., 301 So.2d 897 (La.App. 4th Cir.1974). Materiality of the missing evidence must be demonstrated. Gallin v. Travelers Insurance Company, 323 So.2d 908 (La.App. 4th Cir.1975), writ denied 329 So.2d 452 (1976). The party requesting a continuance must have exercised due diligence, yet been unsuccessful in obtaining the material evidence. Estopinal v. Thomas, 273 So.2d 54 (La.App. 4th Cir.1973),” Sather v. White, 388 So.2d 402 (La.App. 1st Cir.1980).

The record demonstrates that in the past the appellant has consistently used due diligence in seeking to obtain material evidence. Although the subpoena issued for the hearing on November 6, 1981, which produced the judgment herein appealed, and the return on those subpoenas, do not appear in the record, other documents in the record, and testimony at the hearing, support the following findings:

1. That subpoenas duces tecum were timely issued to appellee and his present wife;
2. Both appellee and the present Mrs. LeBlanc were personally served with the subpoenas on October 16, 1981; and
3. George A. LeBlanc was to produce the following: all payroll records, record of sick pay, workmen’s compensation, or any payments or income received from any source whatsoever from January 1,1981, to November 6, 1981, bank statements from January 1, 1980; and that Ronessa LeBlanc, the present wife, was to produce all records of income from any source whatsoever, as well as income tax returns, bank statements, payroll stubs, social security payments, as well as any and all payroll records from January 1, 1980 to November 8, 1981.

Neither George nor Ronessa LeBlanc produced one document in response to the subpoenas.

It is obvious that, in a Rule to Reduce Child Support, the documents requested were not only material to appellant’s case but essential to the trial of the Rule and, under article 1602, LSA C.C.P., and the jurisprudence quoted above, the granting of the continuance is mandatory and the trial judge had no discretion in this case.

We have, therefore, determined that, under all the circumstances reflected by this record, the appellant was unfairly deprived of the opportunity to present her defense and to therefore have her full day in court.

For the reasons assigned, the judgment of the trial court is annulled and set aside and this case is remanded to the district court with instructions to the district judge to set a new hearing of this rule within sixty days from the date of this opinion. The appellee, plaintiff-in-rule, is cast with all costs of these proceedings.

JUDGMENT ANNULLED AND SET ASIDE: CASE REMANDED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    Carmelite RUFFO v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 5-254.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      James Gleason, III, Mandeville, for plaintiff-appellee.
    Stephen M. Pizzo, New Orleans, for defendant-appellant.
    Before BOWES, GAUDIN and DU-FRESNE, JJ.
   BOWES, Judge.

This case comes to us on appeal from the 24th Judicial District Court judgment awarding plaintiff $2,658.00, plus legal interest, for injuries sustained in a fall in defendant’s parking lot.

On May 19, 1979, plaintiff and her husband drove into the parking lot of Schweg-mann Brothers Supermarket on Veterans Highway. They parked their car, and plaintiff got out, walking toward the rear end to a “driving” lane of the lot. Plaintiff had gone a step or two past her automobile when another car, coming from the direction of the store itself and contrary to the directional arrows in the lot, startled her. She moved to her left, stepped on a broken concrete apron surrounding a drainage cover, and fell, injuring her foot.

Neither the fact of injury itself, nor the quantum is in question here. Defendant makes the following assignment of errors:

1. The trial court erred in finding Schwegmann Brothers negligent for the condition of the drainage opening/manhole that existed.
2. The trial court erred in finding that Mrs. Ruffo’s awareness of the drainage opening on this and numerous occasions did not constitute contributory negligence which would bar her recovery.
3. The trial court erred in not finding that the fault of a third party served to bar Mrs. Ruffo’s recovery.

Initially, defendant argues that there is no duty to warn an individual of dangers which are obvious or should be observed by an individual exercising ordinary care. Stated otherwise, there is no duty to warn of conditions which are as obvious to a visitor as to the landowner. This is well-settled jurisprudence. Summer v. Foremost Insurance Co. 417 So.2d 1327 (La.App. 3rd Cir.1982). Defendant argues that the condition of the manhole was or should have been obvious to plaintiff, and, therefore, Schwegmann should not be held liable. Defendant also contends that there was no evidence of a defective condition, nor that the drainage covering presented an unreasonable risk of harm; there was no proof that defendants had actual or constructive knowledge of the alleged condition; that the plaintiff’s concern for protecting her back (previously operated upon) may have affected her reflexes and subsequent reaction upon seeing the approaching car, which (evidently, to defendant) does not constitute use of “ordinary care.”

The applicable standards in the present type of situation were discussed by the Supreme Court in Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (1976):

It is well settled that for alleged wrongful conduct to be actionable negligence it must be found to be a cause in fact of the resulting harm... Thus if the plaintiff can show that he probably would not have suffered the injury complained of but for the defendant’s conduct, he has carried his burden of proof relative to cause in fact.

It is evident to the court that Mrs. Ruffo would not have fallen and injured herself but for the presence of the defective drainage area. That it was defective is evident from the preponderance of the testimony. Both plaintiff and her husband testified as to the crumbling condition of the concrete apron. Defendant offered no testimony to rebut plaintiffs on this point. We find the area in question to be defective. Consequently, we must find that plaintiff would not have injured herself but for the defendant’s conduct.

As in Shelton, supra, we next must consider whether Schwegmann’s breached a legal duty imposed to protect against the risk involved:

... The proper test to be applied in determining a landowner’s liability under articles 2315 and 2316 of the Civil Code is ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.... ’ The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Shelton, (page 410).

Plaintiff described the area in question as having a slope, into which her foot went down into the edge of the manhole, and that the concrete around the area was broken. (Deposition of Mrs. Ruffo, page 38). She was wearing flat shoes at the time of the accident. Mr. Ruffo testified that the metal grate was sunken two inches below the concrete. Other such broken drainage areas had been under repair. The Court feels that this repair of other like portions of the parking lot militates toward the conclusion that defendant knew or should have known of the danger imposed by the manhole in question. At least defendant was put on guard that a regular inspection of all such areas should be made; no evidence of such inspection was introduced. We find the failure to repair or warn of the drainage area into which Mrs. Ruffo fell was negligent under the circumstances. A sloping, broken concrete portion of a parking lot on which many persons are expected to walk daily presents an unreasonable risk of harm.

Defendant contends that plaintiff knew or should have known of the condition of the premises. The fact that plaintiff shopped frequently at the store, and had noticed that other areas of the parking lot were being repaired, does not impose a duty on her to notice every portion which may present danger. Plaintiff should not be required to traverse the lot of defendant’s store as though it were a minefield. The testimony of plaintiff convinces this court that she did not know of the condition of the particular drainage hole in question. Mr. Ruffo testified that he did not have to drive over the manhole in order to park his car. Plaintiff noticed the presence of a manhole, but not its condition, seconds before she fell. That the manhole existed was obvious. Whether it was defective and therefore possibly dangerous would not have been obvious until the opportunity for a closer examination was had. Unfortunately, Mrs. Ruffo’s chance at such a close inspection came only after she had fallen to the ground. As hereinabove indicated, we feel that a preponderance of the evidence shows that had Mrs. Ruffo stepped upon a drainage covering in normal good condition, when she suddenly moved left when frightened by the approaching car, she would not have fallen.

That plaintiff may have been concerned about her back does not lead this court to conclude that her reflexes were abnormal and outside the realm of ordinary usage. Mrs. Ruffo was emphatic that her back problem did not cause her imbalance (Deposition of Mrs. Ruffo, pp. 52-53). We find that the plaintiff used ordinary care in attempting to avoid being hit by the oncoming car.

Defendant alleges that Mrs. Ruffo was contributorily negligent in not walking around the manhole, and by trying to get across the lane before the car passed. Fault of the victim or of a third person is a defense to a claim under the articles imposing strict liability. Loescher v. Parr, 324 So.2d 441 (La.1975). Fault of the victim, as that term is used in reference to a defense to strict liability, means the conduct of the victim was a substantial factor in causing the injury complained of. Sumner, supra, citing Loescher v. Parr, supra. Assumption of the risk and contributory negligence are the two aspects of “victim fault” in our jurisprudence.

“Negligence is a failure to observe or do something that one ought to have observed and done and would have done or noticed with ordinary care.” Soileau v. South Central Bell, 406 So.2d 182 (La.1981), quoting Siau v. Rapides Parish School Board, 264 So.2d 372, 375 (La.App. 3rd Cir.1982) as the applicable law in determining contributory negligence.

“Contributory negligence is a matter of fact to be determined in the light of the circumstances of each case.... A person is not required to exercise the utmost caution at each moment to avoid every hazard of which he was ever aware. Even the ‘reasonable man’ is permitted an occasional lapse of memory. The critical inquiry is whether or not he was exercising ordinary care for his own safety at the time of the accident and whether or not it was reasonable to forget, (sic, the presence of the wire).” Soileau, 406 So.2d at page 184.

We find under Soileau that Mrs. Ruffo was not contributorily negligent. She stepped out into the driving lane, was startled by the approach of a car being driven in the wrong direction, and moved to avoid it. She could not say why she moved in the direction she did, rather than backwards or toward the other side. The Court is unable to supply such a motive. It is not necessary that a victim’s actions be the most prudent or carefully thought out in such a situation. The law recognizes the fact that a prudent man, when brought face-to-face with an unexpected danger, may fail to use the best judgment, may omit some precaution he might have taken, and may not choose the best available method of meeting the situation. Snodgrass v. Centanni, 229 La. 915, 87 So.2d 127 (1956).

Finally, defendant alleges that the unknown driver of the car which frightened Mrs. Ruffo was a third person whose negligence should be an intervening cause sufficient to absolve defendants. We do not agree. The Supreme Court defined this “third person” fault in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979). There the Court stated:

The fault of a “third person” which exonerates a person from his own obligation importing strict liability as imposed by Articles 2317, 2321, and 2322 is that which is the sole cause of the damage, of the nature of an irresistible and unforeseeable occurrence — i.e., where the damage resulting has no causal relationship whatsoever to the fault of the owner in failing to keep his building in repair, and where the “third person” is a stranger rather than a person acting with the consent of the owner in the performance of the owner’s non-delegable duty to keep his building in repair.
In a footnote, the Court went further: “The considerations for determining that an intervening act or force is a superseding cause of the harm, as to which the actor’s antecedent fault was a substantial causal factor, include, for instance, that the harm is different in kind than that would have otherwise resulted, that it is of an extraordinary nature or operates independently of any situation created by the actor’s fault. Section 442; but the intervening act or force is a concurrent rather than superseding cause when the fault of the actor created or increased the foreseeable risk of harm through such an intervening act, or when such intervening act is a normal and non-extraordinary consequence of the situation created by the actor’s fault. Sections 442A, 443, 447.” (Quoting Restatement of Torts 2d, 1965.)

We find the driver of the automobile was not an intervening actor sufficient to relieve defendant’s negligence.

The harm suffered by plaintiff was no different in kind than would have ordinarily resulted — the foreseeable risk was one of falling on the damaged area. Neither was the oncoming auto in the nature of an “extraordinary” event. It may have been a concurrent cause of harm; however, our jurisprudence stated above requires the third person be the “sole” cause of damage.

The Judgment of the lower court is hereby affirmed; all costs of this appeal are taxed to defendant.

JUDGMENT AFFIRMED.


author: BOUTALL, Judge.

text:
    Barbara West CUSTARD v. Carl CUSTARD.
    No. 5-291.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Rebecca B. Macke, Metairie, for Barbara West Custard plaintiff-appellant.
    Stephen J. Hornyak, Gretna, for Carl Custard defendant-appellee.
    Before BOUTALL, BOWES and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is an appeal by the wife from a judgment which dismissed her rule to increase child support payments. Her rule was based on the fact that the original award of $65 every two weeks for the support of two children, which had been arrived at by consent of the parties five months prior to this rule, was inadequate because of a change of circumstances. At the time of the original judgment, appellant and the children were living with her mother and she had no rent, electricity, food, telephone expenses, etc. Since that time she has moved with the children to an apartment.

Both husband and wife are employed by the post office. Her gross salary is $1,851.85 per month. His gross salary is $1,554 per month. The two children are nine years and twenty months old, respectively.

The wife submitted an itemized list of expenses and testified she has the following monthly expenses now that she did not have at the original rule when she was living with her mother:

Rent___ $ 350.00
Electricity_ 100.00
Telephone_ 25.00
Food__ 200.00
Laundry & cleaning_ 35.00
Transportation_ 120.00
Miscellaneous School Expenses for the School age Child for Field Trips, etc_ 20.00
$ 850.00

The parties settled the community in April about the time of the original setting and at that time the wife received $2,000.00 (of which she lent her husband $400.00) and accepted the obligation to pay an account at Borg Warner, Universal Furniture and G.M.A.C. She listed these as monthly expenses but the judge pointed out that it was part of the settlement agreement. She also made a new loan after the separation with the Federal Credit Union which she listed in her monthly expenses.

The husband testified he has the following monthly expenses.

House Note_ $ 764.13
Food__ 100.00
Utilities_ 104.00
Insurance (including auto ins.)- 134.00
Blue Cross (including his wife and children)_ 42.00
Life Insurance (for children)_ 22.60

The husband has been going to college at night and received a VA allowance of $493. However, he is failing one of the courses because he is taking on too heavy a work load and expects to cut back from 12 hours per semester to 6 hours. The VA stipend does not include expenses and tuition, which he is required to pay.

Appellant contends: (1) She is entitled to an increase in the award due to a change in circumstances; (2) the award is manifestly erroneous; and (3) the trial court erred in failing to order her husband to liquidate his assets.

Both parties agree that the mover seeking an increase in child support must prove a change in circumstances since the award sought to be revised was made. Wasson v. Wasson, La.App. 402 So.2d 718; Lucien v. Lucien, La.App. 378 So.2d 518; and Stolier v. Stolier, La.App. 357 So.2d 1334.

It is not disputed that plaintiff was receiving free rent, food, telephone, etc., at the time of the original judgment when she was living with her mother. Her circumstances have indeed changed. She is not required to impose upon her mother for the support of the children, nor is her mother required to shoulder the burden.

The support of minor children is the responsibility of both parents according to the children’s needs and the means of the parents to pay. Chaney v. Chaney, La.App. 402 So.2d 765; Savoie v. Curtis, La.App. 354 So.2d 705; MarcanteI v. Marcantel, La.App. 342 So.2d 278; Foster v. Marshall, La.App. 341 So.2d 1354. It is clear that the wife is carrying her burden, the only issue is whether the husband is bearing his proportionate share. We conclude that the husband should be making a greater contribution to the support of his children.

The trial judge in his reasons for judgment recognized that the amount of support being furnished was inadequate insofar as the needs of the children were concerned and admonished the husband that he would have to reorganize his finances and pay more in the future. He was led to the conclusion that the obligations of Custard was so great that he could not require him to pay more child support at this time. We are of the opinion that the trial judge erred as a matter of law in giving greater weight to the husband’s inability to pay than the necessities of the children and their best interest. In particular Custard is carrying two obligations which cause his financial problems, the first being the house note of $754.13, and the second being the item of $367.48 for repayment of loans or charge account payments. While we agree with the trial judge concerning the problems that Custard is facing, nevertheless the support of his children must be our first consideration. At the same time, we must recognize that there simply is not enough money available to pay as much support as Mrs. Custard contends to be necessary for the children, and we must reach some lower figure considering the ability of both Mr. Custard and Mrs. Custard to pay.

Under the facts of this case, we conclude that a realistic figure for the support of the two children is the sum of $505.00 per month. Mr. Custard is required to pay $65.00 every two weeks, which changed to a monthly basis equals $140.83. In addition he voluntarily provides for the medical bills of the children and also provides for the maintenance of the older child every weekend. Based upon these factors we conclude that the reasonable amount of support to be furnished by him should be increased to $100.00 payable every two weeks. Additionally, considering the problems existing between these parties, and the length of time from date of trial to the hearing in this court, we conclude that as a matter of fairness, we should make the payments retroactive to March 5, 1982 rather than date of judicial demand. See La.C.C.P. 2164. “See also” Phillips v. Phillips, 319 So.2d 566 (La.App. 4th Cir.1975); Hall v. Hall, 379 So.2d 826 (La.App. 4th Cir.1980) (wherein a date other than that of judicial demand has been used).

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff, Barbara West Custard, maintaining her rule for an increase and ordering defendant in rule, Carl Custard, to pay child support in the sum of $100.00 every two weeks, payable every other Friday beginning March 5, 1982. All costs in both courts are to be paid by defendant, Carl Custard.

REVERSED AND RENDERED.

      . Her written itemized list of income and expenses in the record indicates expenses of $1,908.82 per month on a net pay of $1,200.00. She listed (but did not itemize) $600.00 in payroll deductions. The record offers no explanation of such a large deduction. On cross examination she admitted that one of the items on her list included a charge account at a men’s store where she purchased clothing for her brothers and a male co-employee at a cost of $150.00.

      . His written list of expenses total $2,139.22. He did not testify as to all the items listed on his statement.


author: SAMUEL, Judge.

text:
    Joseph R. VEILLON, et al. v. STATE FARM FIRE & CASUALTY, et al.
    No. 5-194.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for State Farm Fire & Cas. Co., defendant-appellee.
    Borrello & Huber, Bruce J. Borrello, Me-tairie, for third party defendant-appellee.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   SAMUEL, Judge.

Plaintiff, Joseph R. Veillon, individually and in his capacity as administrator of the estate of his minor son, instituted this suit for personal injuries and medical expenses sustained when the minor, John Veillon, ran into a sliding glass door in the home of the individual defendant. At the time of the incident the minor was 16 years old. After reaching 18, he was added as a party plaintiff. Hereinafter in this opinion he is referred to as plaintiff.

Named defendants are the homeowner, individually and in his capacity as administrator of the estate of his minor daughter, and his insurer, State Farm Fire & Casualty Insurance Company. Following trial to a jury, the individual defendant was found negligent but his negligence was found not to be a proximate cause of the accident. In accordance with that verdict, the trial court dismissed the suit. Joseph Veillon has appealed.

The record establishes the following facts: On January 1, 1978, the homeowner, an airline pilot, left to fly a trip to California. In spite of his instructions never to have anyone in the home when he was away, his 15 year old daughter invited a group of friends over for the evening. The get-together consisted of about five boys, at least two of whom were 18 years of age, and three girls. They were playing guitars and drinking beer. Some of them, including the plaintiff, also drank whiskey. The partying started in late afternoon or early evening of New Years day and the accident occurred about 1 a.m. the following morning.

The party principally took place in a dining room-den area which was separated from a garden room by a sliding glass door. A large Christmas tree in the garden room partially blocked the glass door and, in order to get from the garden room to the dining room-den, it was necessary to go around the tree. Earlier in the evening the glass door had been open, but it had been closed by one of the guests when he tried to engage in conversation with another guest and could not hear because of the loud music. Plaintiff was aware of the house floor plan insofar as the accident site was concerned. He also was aware of the glass door itself; he admitted he had passed through that door several times prior to the accident.

Plaintiff testified: Shortly before the accident, plaintiff and another guest, a boy named Pezzeck, were “horse-playing” and playfully pushing each other. After he had pushed Pezzeck down, with Pezzeck chasing him, plaintiff ran out of the dining room-den, into a hallway, through a bed room, back into the hallway and into the garden room. Then, in an attempt to reenter the dining room-den, he ran around the Christmas tree into the then closed glass door. As he was running around the tree he looked over his shoulder to see if young Pezzeck was still chasing him, and he turned to look forward just as he ran into the glass door. The door shattered and plaintiff was taken to a hospital where he was treated for several injuries, particularly to his face.

In this court appellant contends the jury erred in: (1) failing to find that the homeowner’s negligence was a proximate cause of plaintiff’s injuries; (2) failing to find intervening or superseding causes may have resulted in plaintiff’s injuries; and (3) in finding plaintiff son was contributorily negligent or had assumed a known risk giving rise to his injuries.

Because we conclude plaintiff was guilty of negligence, contributory or otherwise, which bars a recovery by either of the two plaintiffs, we find it necessary to consider only the third contention.

Our finding of negligence on the part of the plaintiff is based upon the fact that, as stated above, while continuing to run he looked back over his shoulder to see if the other boy was still chasing him and turned to look forward just as he ran into the glass door. We are satisfied that under all of the circumstances here plaintiff would have run into the glass door even if it had contained decals, masking tape or similar devices to indicate the door was closed. Indeed, it appears he would have run into the door even if it had been made of wood instead of glass. Plaintiff’s negligence was the sole proximate cause, or sole cause in fact, of the accident. Even assuming negligence on the part of the individual defendant, as the jury found, and further even assuming such defendant negligence was a proximate cause of the accident, which the jury correctly refused to find, plaintiff’s contributory negligence would prevent any recovery.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The accident occurred (January 1, 1978) prior to the effective date (August 1, 1980) of Act 431 of 1979 which amended and reenacted Civil Code Article 2323 and changed our long existing law of contributory negligence to that of comparative negligence.


text:
    Fred Archie PARKER v. Deborah Slie, Wife of Fred Archie PARKER. Deborah Slie, Wife of Fred Archie PARKER v. Fred Archie PARKER.
    Nos. 82-CA-75, 82-CA-76.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Writ Denied Jan. 21, 1983.
    Nelson J. Cantrelle, Jr. and Alan Gandol-fi, Gretna, for plaintiff-appellee.
    Wiley J. Beevers and Michael O’Farrell, Metairie, for defendant-appellant.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   SAMUEL, Judge.

This matter (No. 82-CA-75) is a proceeding by Fred Archie Parker against his former wife, Deborah Slie, to effect a change of custody of their 7 year old son, James, from the defendant mother to himself. The other matter (No. 82-CA-76), consolidated in the trial court, is an older suit for separation filed by the present defendant against the present plaintiff.

In May, 1982, plaintiff filed a verified petition seeking temporary custody and eventual permanent custody of the child on the basis that “irreparable psychological harm might come to the minor child when taken out of the state of Louisiana ...” The trial judge awarded plaintiff temporary custody by ex parte order (because he feared the child would be removed from his jurisdiction before a hearing could be held), and set the matter for hearing on May 28, 1982. The mother filed exceptions of lack of jurisdiction and improper venue, which the trial court referred to the merits. After a three-day hearing, there was judgment in favor of the plaintiff awarding him permanent custody of the child, thus impliedly overruling the exceptions. The defendant mother has appealed from that judgment.

On September 10, 1976, the Twenty-Fourth Judicial District Court for the Parish of Jefferson rendered a judgment of separation from bed and board between the parties. The judgment also provided that the mother constantly was to keep the father informed of the whereabouts of the child. By consent, custody of the child was given to the mother, with liberal visitation privileges in favor of his father.

The parties moved from Jefferson Parish, and on May 11,1977, the Sixteenth Judicial District Court for the Parish of Iberia rendered a judgment of divorce between them. In the divorce judgment, custody of the child was granted to the father. On February 10, 1978, after a contested hearing, the same court changed custody from the father to the mother. This judgment awarded the father visitation privileges and also required that the mother keep the father informed of his son’s whereabouts.

Subsequently, the mother moved several times to other places in Louisiana without informing the father of the child’s whereabouts. In October, 1980, she took the child from Alexandria, Louisiana to live in Boulder, Colorado, but she did not inform the father of this move. The father attempted to visit the child in Alexandria, and there could only learn his former wife had taken the boy to an unknown Colorado location.

The mother’s parents still live in Jefferson Parish, and the father attempted to locate his son by having their residence watched from time to time (plaintiff then lived and now lives in Raceland, Lafourche Parish, Louisiana) in the hope the child would be discovered on a visit to his grandparents. These efforts were fruitless until January, 1982, when he learned the child had been living with his maternal grandparents in Jefferson Parish since June, 1981 and had been attending school there since the beginning of the 1981 school year. The child had been in Colorado for approximately 8 or 9 months during which time he lived in two or more different places and attended two different schools.

Plaintiff began to visit his son on a fairly regular basis from January until May, 1982. In early May he learned the defendant was scheduled to come to Jefferson Parish to take possession of the child again. He was told she was going to the Bahamas either on vacation or to live, and he felt such a move would jeopardize his visitation privileges and might harm the child.

Prior to the end of the school year, he ascertained the boy had sufficient days in attendance in the Jefferson Parish school system so that an early removal from one school to another in another parish would not cause him to forfeit credit. At that time, plaintiff commenced this proceeding to obtain custody.

First addressing ourselves to the jurisdictional exception, we do not agree with defendant’s contention that the district court had no jurisdiction. She argues she changed her domicile to Colorado, that pursuant to Louisiana law the domicile of a child is that of its custodial parent, and that under the Uniform Child Custody Jurisdiction Act (R.S. 13:1700, et seq.) a Louisiana court does not have jurisdiction.

The record is devoid of evidence showing, with sufficient certainty, that the defendant mother actually changed her domicile from Louisiana to Colorado. Although she testified she did move to Colorado with her son, she also stated that while there she moved on four different occasions within that state. The record contains none of the customary elements normally used to establish intent to live on a permanent basis in a parish other than Jefferson or in another state. Defendant did not show she was a Colorado voter, she did not produce a Colorado driver’s license or Colorado tax returns, nor did she produce any evidence whatever to corroborate her testimony that she intended to live permanently in Colorado.

Even assuming, as both litigants suggest, that the determining law is our Uniform Child Custody Jurisdiction Act, we hold the trial court had jurisdiction. The act contains the following provision (R.S. 13:1702) as to jurisdiction over custody matters:

“§ 1702. Jurisdiction
A.A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. Added by Acts 1978, No. 513, § 1, eff. Oct. 1, 1978.”

A Louisiana district court has jurisdiction over a child under the circumstances of this case pursuant to Subparagraph A(2) of the above quoted statute. Both the child and his father, as well as mother, have “significant connections with this state” and “there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships .... ” The child was in Colorado for only a short period of time. There is no evidence that he established any lasting friendships or other relationships there. While in Colorado for this short period, he moved several times, as stated above, and attended two separate schools. On the other hand, he has attended school for the past year in Louisiana. His father and stepmother reside here. Both his paternal and maternal grandparents live in Louisiana, and the witnesses needed for a proper determination of custody (with the exception of the mother) now live in or close to Jefferson Parish.

A more difficult problem is presented by the exception of improper venue. The Uniform Child Custody Jurisdiction Act is concerned with avoiding jurisdictional competition and conflicts between courts of different states in matters of child custody. The act has no application to venue, a matter involving the operation of courts within a state which does not involve possible conflicts with other states. Thus, insofar as venue is concerned, we look only to the law of Louisiana and do not consider the Uniform Act.

Code of Civil Procedure Article 41 defines venue as follows: “Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” There is no specific provision in the Code of Civil Procedure governing venue only in custody actions. However, the general rule contained in Code of Civil Procedure Article 42(1), i.e., an action brought against an individual domiciled in the state shall be brought in the parish of his domicile, is applicable to custody actions. Such actions usually, but not necessarily, are brought in the parish of proper venue for the principal action, and there appears to be some conflict among Louisiana circuit courts regarding the rules to be followed when the child is in this state but domiciled elsewhere (see, for example, the First Circuit case of Sims v. Sims, (La.App.1980), 388 So.2d 428, and the Third Circuit case of Lucas v. Lucas, (La.App. 1967), 195 So.2d 771). Because we believe it unwise to judicially set inflexible rules regarding venue in custody matters, we prefer the methodology used in Lucas over that used in Sims.

In the instant case, for the same reasons mentioned above in our discussion of the jurisdictional issue, the Jefferson Parish court is more convenient than the only other possible venue, Iberia Parish. It appears that none of the individuals involved here have any connection with Iberia other than the fact that the plaintiff alone did spend some time there. It also appears that both litigants were able to fully present all evidence they desired to present. However, the matter of convenience is not the determining consideration.

Under the rule that an individual retains his last domicile until he actually establishes a new one, insofar as the records before us show, it appears that the defendant may still be domiciled in the Parish of Jefferson. Nonetheless, we prefer to base our conclusion as to venue on another ground. In Howard v. Howard, (La.App.1981), 409 So.2d 279, 280, on application for rehearing the court had this to say about the then very recent Supreme Court case of Lewis v. Lewis, (La.1981), 404 So.2d 1230:

“Since the Supreme Court now has said the obligation on the part of the parent to support a child does not arise from the marriage but from the act of paternity and that a judgment awarding support for a child has a legally independent basis and is not a mere incident of a separation decree which terminates with the dissolution of the marriage, we conclude that custody (like support) has a legally independent basis and is not simply incidental to the action for separation or divorce.”

Thus, even assuming the defendant is a Colorado domiciliary, and therefore has no domicile in Louisiana, the parish in which the child in suit was residing at the time of the filing of the proceeding for change of custody, Jefferson Parish, was a proper venue.

On the merits, the trial judge’s reasons for judgment state:

“Evidence at trial revealed one constant element which continually surfaced: both parents loved the child, wanted him and sincerely thought he or she could do a better job of rearing the child. The Court was, therefore, presented with the unpleasant, but necessary task of determining the custody which would be in the child’s best interest and did this by examining the respective environments from February 10, 1978, date of the last judgment, to May, 1982.

Evidence indicated that Deborah J. Slie Parker immediately moved to Colorado, taking the child two thousand (2,000) miles away from the persons and things important to him. While there, they moved two (2) or three (3) more times within a period of approximately one (1) year. Further, during that period, there was testimony taken that Deborah J. Slie Parker had a “housemate”, Kevin Gilfor, living with her. The Court feels that Deborah J. Slie Parker’s own testimony indicated she knew there was something wrong with the situation for two reasons: (1) When her parents came to visit, the roommate left; and (2) She terminated the roommate situation very recently because, the Court believes, she felt it would reflect more favorably in these proceedings. The Court does note that for a twelve (12) month period, she voluntarily abrogated her custody by sending the child to live with her parents in Louisiana.

Two (2) experts, Drs. Coddington and Cowardin, each interviewed the child once. The Court was more impressed with Dr. Coddington’s technique and evaluation and felt his opinions were more credible. Dr. Coddington stated that he felt custody should be given to Mr. Parker for numerous reasons, including the stability of that environment and the fact that the child’s uncooperative behavior, poor school habits and emotional unrest had greatly improved during his stay with his father and as that relationship grew.

The minor child was interviewed in chambers and in the presence of counsel for both parties. The Court was impressed with the awareness of the child to the housemate situation and what the child personally desired. He liked Louisiana and his father better than Colorado and his mother because of his local friends, relatives and school. His recent behavorial improvement corroborated his statements.

Based on the foregoing, the Court felt it was in the best interest of the minor child, James Parker, that permanent custody be granted to his father, Fred Parker, with liberal visitation privileges being granted to his mother, Deborah J. Slie Parker.”

We agree with the trial court’s findings, reasons and conclusions.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See Civil Code Article 39.

      . Colorado is also a party signatory to this statute. See C.R.S. ’73, 14-13-101 to 14-13-126.

      .In pertinent part, R.S. 13:1700 provides:
      “A. The general purposes of this part are to:
      (1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.”

      . Dupre v. Pelotto, (La.App.1976), 336 So.2d 329.

      . Iberia being the parish in which the judgment of divorce was rendered.

      . In addition to the fact that a Jefferson court rendered the judgment of separation.


author: SAMUEL, Judge. GAUDIN, Judge,

text:
    Frank PERRILLOUX v. Dorothy Mae Pate PERRILLOUX.
    No. 5-210.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      William O’Regan, III, LaPlace, for defendant-appellant.
    Sylvia E. Taylor, Reserve, for plaintiff-appellee.
    Before SAMUEL, GAUDIN and GRIS-BAUM, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his wife for a divorce based on continuously living separate and apart for more than two years. On September 30, 1976 he obtained a default judgment decreeing a divorce and giving custody of the couple’s 11 year old son to the wife. Neither alimony nor child support was at issue, and the divorce petition and judgment contain no mention of either.

On April 24, 1981, approximately five years after the judgment of divorce, Mrs. Perrilloux filed a rule to show cause why her former husband should not be ordered to pay alimony. Following a hearing, there was judgment dismissing the rule. Mrs. Perrilloux has appealed.

Our statutory law is quite clear regarding alimony after divorce. Only the spouse who has not been at fault and has not sufficient means for support can obtain such alimony. And the burden of proving an absence of fault on his or her part is on the spouse seeking alimony.

Here, appellant did not allege she was free from fault, nor did she offer any evidence regarding that issue. The evidence contained in the record consists solely of the testimony of the two litigants. Appellant testified only as to her need and lack of means. The other litigant, her former husband, did testify that appellant was at fault in the separation, but that testimony was objected to by appellant’s counsel, the objection was sustained, and the testimony was allowed to come in only as a proffer.

Thus, the record is totally devoid of any evidence showing, or tending to show, an absence of fault on the part of the appellant. Indeed, the only evidence regarding fault, by way of proffer, was the testimony given by her former husband, and that testimony, although incomplete, is that the appellant was at fault.

As there is no evidence showing an absence of fault on the part of appellant, and as such a showing, by a preponderance of the evidence, is an indispensable part of any successful demand for alimony, her present demand must be dismissed. However, for the purpose of making certain Mrs. Perrilloux may file another rule seeking alimony and allege and offer proof as to her freedom from fault, we amend the judgment to the extent that we dismiss without prejudice.

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

IT IS ORDERED, ADJUDGED AND DECREED that the demand of Dorothy Mae Pate Perrilloux for alimony be, and the same is, denied and dismissed without prejudice.

AMENDED, AFFIRMED AS AMENDED, AND RECAST.

GAUDIN, Judge,

dissenting.

I respectfully dissent.

Rather than amend and affirm, I would remand to the trial judge for a hearing on the fault issue.

In his reasons for judgment, the trial judge states, in part:

“... the ex-wife rules the ex-husband into court demanding alimony. At trial of the rule the ex-wife did not prove fault on part of the ex-husband nor prove that she was free of fault. CC Art. 160 allows a spouse free of fault to prove the need for alimony and the ability of the other spouse to pay such alimony. However the jurisprudence places the burden of proof on the spouse claiming alimony to prove no fault on his or her part. This burden was not carried by the ex-wife and alimony will be denied.”

This wording has a ring of finality. It suggests that fault was at issue when the motion for permanent alimony was heard and that this issue had been resolved against Mrs. Dorothy Perrilloux.

In fact, the record clearly shows that fault was not at issue. Mrs. Perrilloux did not say in her motion that she was free of fault, nor did she attempt to testify about fault.

Only when Frank Perrilloux was on the witness stand was fault mentioned, reference this colloquy:

Q. (By Ms. Sylvia Taylor, Mr. Perril-loux’s attorney) When did you and your wife separate?
A. Between ’61 and ’62.
Q. Would you tell me the cause of the separation at the time?
A. If you, well, fussing, cooking, was, well, she wasn’t doing her job in the house and sex and everything, mostly every time you put ...

Mrs. Perrilloux’s attorney objected, and the trial judge sustained the objection but allowed Mr. Perrilloux to make a proffer in accord with LSA-C.C.P. art. 1636.

Nonetheless, the judgment and the reasons therefore indicate that the fault issue had been resolved adverse to Mrs. Perril-loux.

I would remand so that the question of fault could be amply presented to the trial court, and a judicial determination fairly made.

      . In pertinent part, Civil Code Article 160 reads:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income.”

      . Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Lloveras v. Reichert, 197 La. 49, 200 So. 817; Boudreaux v. Boudreaux, La.App., 407 So.2d 1363; Brister v. Brister, La.App., 402 So.2d 173; Adler v. Adler, La.App., 239 So.2d 494; Davidson v. Jenkins, La.App., 216 So.2d 682.

      . We prefer not to remand, the only other alternative (see Davidson v. Jenkins, supra, note 2), because our solution effectively provides appellant with a choice and brings the present litigation to an end.


text:
    Linda Klein Wife of/and Paul R. GUENIN, Jr. v. R.M. HOMES, INC.
    No. 5-152.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Leonard J. Cline, Metairie, for plaintiffs-appellants.
    Bagot & Gniady, Michael H. Bagot, New Orleans, for defendant-appellee.
    Before SAMUEL, KLIEBERT and GRISBAUM, JJ.
   SAMUEL, Judge.

On May 25,1979 plaintiffs purchased certain immovable property, a fourplex, from the defendant. On February 2, 1981 plaintiffs filed this suit for rescission of the sale based on alleged redhibitory vices and defects, or for a reduction of the purchase price, and for damages.

The petition alleges: Within three days after the purchase, petitioners discovered the building had numerous and serious defects and problems which they called upon the defendant to repair and remedy; the problems included a “leaking roof, wet and sagging sheetrock, sloping floors, sagging ceilings, defective light fixtures, leaky bathtubs, leaky toilets, loose flooring, problems with the heating and air-conditioning units, loose and buckling face boards, etc.” as outlined in an exhibit attached to the petition; the defendant had made numerous attempts to remedy these problems, the last such attempt being made on or about July 30, 1980; and that the defendant failed to declare the existence of the vices and defects to them although the same were known, or should have been known, to it.

The defendant filed an exception of prescription to the petition. The exception was heard only on argument based on the face of the pleadings; no evidence was offered by either side. After the hearing, the exception was maintained and there was judgment dismissing the suit with prejudice. Plaintiffs have appealed.

The applicable law is to be found in Civil Code Article 2534 which provides in pertinent part:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.” LSA-C.C. Art. 2534.

These two issues are presented on appeal: (1)whether the Civil Code Articles on redhi-bition and reduction of price (C.C. Arts. 2520 et seq.) are applicable to immovables as well as movables; and (2) if those articles are applicable to immovables, has prescription run?

The first issue must be answered in the affirmative. The articles on redhibition and reduction of price refer only to “things” (“things sold” and “inanimate things”) and “animals”; no distinction is made between movables and immovables, both being included and treated alike. Our long standing jurisprudence firmly establishes that the articles also apply to immov-ables.

Regarding the second issue, the answer must be in the negative. Our settled jurisprudence is that, when the seller attempts to remedy the defects, the prescription contained in Article 2534 not only does not begin to run from the time the seller makes the last attempt but, in addition, the prescription does not begin to run until the seller abandons such attempt.

Accordingly, we reverse. Insofar as is shown by the record before us, the defendant seller neglected to declare the alleged vices and defects to the purchaser despite the fact that it had knowledge thereof; the petition so alleges and there is no evidence contradicting that allegation. Thus, as stated in the second sentence of the above quoted Article 2534, the one year prescription does not apply. In addition, also insofar as the record before us reveals (again an uncontradicted petition allegation), the defendant’s last attempt to remedy the alleged vices and defects was made on or about July 30, 1980 and this suit was filed on February 2,1981, less than one year after the last attempt to remedy was made.

For the reasons assigned, the judgment appealed from is reversed, the exception of prescription is overruled, and the matter is remanded to the trial court for further proceedings in accordance with law and with the views expressed herein. All costs are to await a final determination.

REVERSED AND REMANDED.

      . Pursell v. Kelly, La.App., 139 So.2d 12, Affirmed, 244 La. 323, 152 So.2d 36; Cipriano v. Superior Realty & Construction Company, 228 La. 1065, 84 So.2d 822; Broussard v. Breaux, La.App., 412 So.2d 176; Ranney v. Durkin, La.App., 398 So.2d 82; DeSoto v. Ellis, La.App., 393 So.2d 847; Dunn v. Pauratore, La.App., 387 So.2d 1227; Busenlener v. Peck, La.App., 316 So.2d 27; Cook v. Highland Park Construction Co., La.App., 168 So.2d 825; Roberts v. Boulmay, La.App., 186 So.2d 188.

      . Schamens v. Crow, La.App., 326 So.2d 621; Domingue v. Whirlpool Corporation, La.App., 303 So.2d 813; de la Houssaye v. Star Chrysler, Inc., La.App., 284 So.2d 63; Kennedy v. Vidalia Home Service, Inc., La.App., 256 So.2d 827; Brown v. Dauzat, La.App., 157 So.2d 570.

      .The lead cases in a line of jurisprudence so holding are:

        Baldwin Sales Co. v. Mitchell, 174 La. 1098, 142 So. 700; Woodward-Wight & Co. v. Engel Land and Lbr. Co., 123 La. 1093, 49 So. 719.
      The rationale of these decisions is that when a seller attempts to remedy a defect the buyer is not put on notice that a redhibitory suit will be necessaiy until the seller abandons his efforts to remedy the defect.


author: GAUDIN, Judge.

text:
    Dennis J. ARMSTRONG v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 5-55.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Richard M. Michalczyk, Cronvich, Wambsgans & Michalczyk, Metairie, for plaintiff-appellant.
    Iddo Pittman, Jr., Hammond, for defendant-appellee.
    Before SAMUEL, BOWES and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant Dennis J. Armstrong’s home in Abita Springs, Louisiana, was destroyed by fire on January 7, 1979. The house was insured by appellee State Farm Fire and Casualty Company, which made certain payments under terms and conditions of the policy.

Armstrong, contending that he was never paid for loss of personal belongings, instituted suit on March 12,1980, approximately a year and two months subsequent to the loss.

State Farm filed an exception of prescription, which was maintained in the district court and the suit dismissed. It is from this adverse judgment that Armstrong has appealed, contending that the one-year prescriptive period was interrupted by:

(1) An acknowledgement of the debt by State Farm, and
(2) Armstrong’s reliance on an adjuster’s promise to pay for personal belongings as soon as a list of lost items could be prepared and submitted to State Farm.

The trial judge did not agree with either contention, nor do we.

The State Farm policy had been in effect for three weeks when the loss occurred. Armstrong filed a proof of claim on February 22, 1979, and State Farm then paid $20,000.00 to St. Tammany Homestead Association, the mortgage holder, and $3,000.00 to Armstrong for incidental damages and living expenses.

Armstrong testified that he was advised by adjuster Rick Norton that “... the sooner I got my personal property report in, the sooner the case would be settled.”

There was a delay in the preparation of the list, and questions arose concerning the source of the fire. Armstrong was asked to submit to a deposition in the office of State Farm’s attorney, and he did so on May 17, 1979. Following the deposition, there was no further attempt by State Farm to contact Armstrong, and no further attempt by Armstrong to contact State Farm.

The record does not indicate that a proof of claim form listing Armstrong’s personal items was ever tendered to State Farm.

Appellant cites Flowers v. United States Fidelity and Guaranty Company, 381 So.2d 378 (La.1979), but the Flowers facts and circumstances are distinguishable from Armstrong’s. In Flowers, settlement negotiations were continual while State Farm and Armstrong had no contact after the May 17, 1979, deposition.

State Farm, after making the initial payments to the homestead and to Armstrong, did not acknowledge further responsibility except possibly for the adjuster’s representations. But if the adjuster did suggest that State Farm would make further payments (for personal belongings), the assurance was made before May 17,1979, and at least eight months in advance of prescription.

On February 21, 1979, a State Farm representative wrote to Armstrong’s attorney and advised that State Farm would not waive any of the policy provisions; and on May 17, 1979, when Armstrong was deposed, he (Armstrong) admitted that no promises to pay were then made.

There is a one-year prescription written into the policy, in accord with LSA-R.S. 22:691, which, in part, reads:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court ... unless commenced within 12 months next after the inception of the loss.”

One of the witnesses who testified was insurance agent James Cutrer, who said that Armstrong told him "... that he had let the year run out ... he had just fooled around and let his time expire.”

As there was no contact between Armstrong and State Farm after May 17, 1979, the insurance company obviously did not acknowledge further responsibility nor did it do anything to mislead Armstrong or lull him into not timely filing his suit.

We cannot say that the trial judge committed reversible error by maintaining the exception of prescription, and we affirm the district court’s judgment.

AFFIRMED.


text:
    Shirley M. RANDALL v. CUNA MUTUAL INSURANCE GROUP.
    No. 5-87.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Leon C. Vial, III, Hahnville, for plaintiff-appellant.
    Harry McCall, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Mrs. Shirley M. Randall, who filed this breach of contract suit in the 29th Judicial District Court contending that she is totally and permanently disabled in accord with the terms and conditions of an insurance agreement.

Following a non-jury trial, the district judge dismissed Mrs. Randall’s petition on July 15, 1981, stating:

“Plaintiffs testimony indicates that she is disabled. However, a reading of the doctor’s testimony as to her disability would indicate to the contrary. Inasmuch as plaintiff must carry her burden of proof by the ponderance of the evidence, based upon the foregoing bits of evidence, her claim must fall.”

For reasons contained hereinafter, we do not agree with this conclusion.

FACTS

Mrs. Randall was employed as a medical technician at Ochsner Foundation Hospital when she slipped and fell on February 1, 1980. At the time, she had an outstanding loan with the hospital’s credit union, the balance being $2,714.38.

When the loan was made, Mrs. Randall acquired a policy from appellee, Cuna Mutual Insurance Group, whereby Cuna was to assume payment of the loan balance “.. . at the time of ... total and permanent disability of the member...”

The policy reads:

“The payment of a claim because of total and permanent disability ... shall be made solely for the reason that the member ... is totally and permanently unable to engage in any occupation for remuneration or profit...”

Appellant was treated by Dr. Ralph J. Gessner, who eventually performed surgery to remove a disc fragment that had protruded into the spinal canal and was putting pressure on the spinal nerves.

Dr. Gessner followed Mrs. Randall as an outpatient after 'the surgery, the last visit prior to the trial being in March of 1981.

THE TRIAL

We note at the onset that no testimony was taken at the trial. Instead, the depositions of Dr. Gessner and Mrs. Randall were submitted into evidence by agreement by counsel. Thus, the trial judge was deprived of seeing and hearing Dr. Gessner and Mrs. Randall on the witness stand, and he rendered judgment after reading and evaluating the two depositions and coming to a legal conclusion.

Actually, the trial judge did not have to make any significant findings of fact. Mrs. Randall said that she was disabled and Dr. Gessner agreed. Only the legal effect of this uncontradicted testimony was at issue.

Accordingly, we do not have to find manifest error, as required by Canter v. Koehring, 283 So.2d 716 (La.1973), before setting aside the district court decree. We have only to conclude that the trial judge came to an improper legal determination, and that we should correct it, as LSA-C.C.P. art. 2164 directs.

MRS. RANDALL’S JOB

Describing her duties at Ochsner, appellant said:

“. .. in the morning we’d go there and set up everything, and load it on to the big carts ... then we go ahead to the floors and, you know, draw the blood from all the patients that we have to ... and sometimes we go do the finger sticks.. .
“... a lot of walking all day; bending, a lot of that; twisting, turning, pulling, and sometimes you had to, you know, try to help get the patients in position, and fighting with kids.”

At the time of her deposition on March 17, 1981, Mrs. Randall was taking medication and still under active treatment by Dr. Gessner.

She said:

“. .. but I’m still, you know, I’m still having problems ‘cause I’m still not walking with the same speed I’d been walking. I’m still walking slow on account of my leg and my back.”

Mrs. Randall was receiving workmen’s compensation payments in July of 1981 and had not returned to her employment.

DR. GESSNER’S ASSESSMENTS

When Dr. Gessner was deposed on June 3, 1981, he described Mrs. Randall’s treatment and surgery. A lumbar myelogram "... demonstrated a herniated nucleus pulposus at the L5-S1 interspace on the level she was operated on at Hotel Dieu in September of 1980 at which time an L5-S1 lami-nectomy and diskectomy was performed.”

Further from the deposition:

“... the last time I saw her she continued to have subjective complaints of low back pain. My physical examination was essentially normal with only a mild degree of spasm. She had a healed incision ... and I felt she was responding favorably to the surgery.
“I’m of the opinion at this time that ... Shirley Randall is not permanently and totally disabled ... I feel she has a 25 per cent permanent disability to her back, but this is not a total disability. I feel that she may have difficulty handling certain job categories, such as involve heavy lifting or climbing or excessive stooping and bending. She shouldn’t lift anything over 25 pounds. However, she is a relatively young woman, and I think she could be sent to some sort of rehabilitation school or something to retrain her in another job activity...
“I felt that she had reached maximum recovery in that there is no further surgical procedure that I entertained regarding ... Randall; that she will occasionally need analgesics and some medication supports in relief of her symptomatolo-gy- • •
“I have not released her to go to the work activity I described but more sedentary work I feel she could perform...
“. .. aides at the hospitals I’m associated with are called upon to transfer patients and just regular duties, cleaning up, something like that. I think that certain duties that are required of an aide she could perform. However, I would not advise her to be lifting patients or transferring patients or anything like that which would require excessive stress to her back...
“I do not feel that she is totally and permanently disabled... I feel she can return to some kind of work.”

THE CROWE DECISION

The Louisiana rule with regard to total and permanent disability was first expressed by the Supreme Court in Crowe v. Equitable Life Assurance Society, 179 La. 444, 154 So. 52 (1934).

From Crowe:

“... total disability contemplated by an accident insurance policy does not mean, as its literal construction would require, a state of absolute helplessness which can result only from loss of reason, since as long as one is in full possession of his mental faculties he is capable of transacting some part of his business, whatever it may be, although he is incapable of physical action. On the contrary ... courts giving consideration to the object of the contract, hold that the ‘total disability’ contemplated by the agreement is inability to do substantially all the material acts necessary to the prosecution of the insured’s business or occupation in substantially his customary and usual manner.”

Lewis Crowe, a 50-year-old manual laborer, sustained a fracture of the fourth lumbar vertebra. Following treatment, at least one physician did not consider Crowe’s disability as total and permanent and advised him to return to his employment. Crowe tried to work, but couldn’t.

The policy in Crowe stated that the insurance company would pay if the insured “... became totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value.”

The insurance company argued that even if Crowe was unable to perform manual labor, he was capable of doing light work that would not place undue stress on his injured back. The Supreme Court did not agree, saying:

“... such a construction, if adopted and enforced, would render an insurance policy of no practical benefit to an illiterate insured who earns his livelihood by hard manual labor...”

Such a policy stipulation, the Court went on, “... would so seldom become operative that it would be about as well as if left out of the policy altogether...”

The Court concluded that if Crowe could not perform the substantial and material acts of his occupation in the usual and customary way, he was in fact “total and permanent” and covered by the insurance contract.

This State’s courts have constantly recognized and followed Crowe. See Boes v. New Orleans Public Serv. Inc., 385 So.2d 588 (La.App. 4th Cir.1980); Francois v. Mutual Life Ins. Co. of New York, 405 So.2d 1292 (La.App. 4th Cir.1981); Johnson v. State Farm Mutual Automobile Ins. Co., 342 So.2d 664 (La.1977); and Laborde v. Employers Life Ins. Co., 412 So.2d 1301 (La.1982).

The Laborde opinion was handed down on April 5, 1982, and is the Supreme Court’s latest decision regarding the Crowe guidelines.

The Court pointed out that while Ellis Laborde, a carpenter, could do light work, he was not able to do physical labor, lift or climb and therefore was not able to perform in the usual and customary way. He was found to be totally disabled.

CONCLUSION

Although Dr. Gessner said that Mrs. Randall was not, in his judgment, totally and permanently disabled, we agree with appellant that this was his medical rather than a legal opinion. The doctor, in substance, said that his surgery had been a success but that Mrs. Randall was left with a 25 per cent permanent disability to her back, rendering her incapable of performing her job as she usually and customarily did.

Dr. Gessner recommended a “... rehabilitation school or something to retrain her in another job category...” and he specifically said that Mrs. Randall should not do “... heavy lifting or climbing or excessive stooping and bending.” Mrs. Randall could not perform in the usual and customary way, and Dr. Gessner would not release her to return to work.

Dr. Gessner’s own words clearly place appellant within the Crowe guidelines, and we believe that the trial judge did impose too restricted a policy definition on total and permanent disability as it relates to Mrs. Randall.

We annul and set aside the judgment of the district court dismissing Mrs. Randall’s suit, and we render judgment in her favor and against Cuna Mutual Insurance Group in the sum of $2,714.38, plus legal interest from date of judicial demand, until paid, and all costs of this proceeding.

REVERSED AND RENDERED.

      . LSA-C.C.P. art 2164: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal...”

      . The record does not indicate Mrs. Randall’s age.


text:
    Willie J. BARNES v. Norris CARMADELLE.
    No. 5-114.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.

      Robert H. Fray, White, Fray & White, Gretna, for plaintiff-appellee.
    Terrence J. Lestelle, Amato & Creely, Gretna, for defendant-appellant.
    Ralph R. Alexis, III, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Norris Carmadelle, who was driving his 1971 Mercury automobile on the afternoon of December 15, 1977, when he executed a left turn into the path of an oncoming motorcycle, causing a collision.

The motorcycle driver, Willie J. Barnes, instituted suit in the district court against Carmadelle, who responded by (1) filing a reconventional demand against Barnes and (2) bringing a third party action against State Farm Mutual Automobile Insurance Company, contending that his Mercury was covered by a State Farm policy.

Following a non-jury trial, the district judge awarded $3,847.13 to Barnes and dismissed Carmadelle’s reconventional demand and his third party petition. It is from this judgment that Carmadelle appeals.

After reviewing the testimony and evidence and the jurisprudence of the State, we cannot say that the trial judge’s determinations were manifestly erroneous, and we affirm the decision adverse to Carma-delle.

ACCIDENT FACTS

Carmadelle was proceeding westerly on Fourth Street in Westwego, Louisiana, while Barnes was also on Fourth Street and driving in an easterly direction, toward Car-madelle.

When Carmadelle reached Laroussini Street, he went into a left turning maneuver. Carmadelle testified that he “... saw no object whatsoever, no automobile or motorcycle ...” and that “.. . some high-powered object comes flying through the air and struck me on the side.”

Barnes, the “high-powered object” on his motorcycle, said that he was in first gear and “... travelling around 15 miles an hour ...” when Carmadelle’s automobile “... just made a fast turn right in front of me ...”

Carmadelle could not explain why he failed to see the approaching motorcycle. There were no obstructions and it was daylight.

There was nothing to support Carma-delle’s contention that Barnes was driving in excess of 15 miles per hour except possibly the testimony of James Cowans. This witness did not see the accident, but he testified that he believed he saw Barnes “... coming down Louisiana Street at a high rate of speed ...” several minutes before the collision.

Cowans, however, was unable to positively identify Barnes, and he (Cowans) could not testify as to the motorcycle’s rate of speed just prior to the accident. Cowans did say that he was a friend of Carmadelle and had “... been knowing him seven or eight years.”

The trial judge, from the bench, stated: “... There has been no testimony either by Mr. Carmadelle or Mr. Cowans to establish the speed of the Barnes vehicle prior to impact, and even if the vehicle was exceeding the speed limit, the proximate cause was the turning vehicle which had the obligation to yield the right of way. That ... caused the accident ...”
We agree.

THE INSURANCE ISSUE

On December 15, 1977, State Farm insured two automobiles owned by Carma-delle, a 1972 Cadillac under one policy and a 1973 Pontiac under a second policy. Appellant claims coverage for the 1971 Mercury, the one involved in the accident, under provisions of the Cadillac policy.

This policy covers Carmadelle’s owned automobiles, and an “owned automobile” is described as:

“(a) a private passenger ... automobile described in this policy for which a specific premium charge indicates that coverage is approved.
“(b) a trailer ...
“(c) a private passenger ... automobile ownership of which is acquired by the named insured during the policy period, provided:
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or
“(d) a temporary substitute automobile.”
(Underlining provided.)

Carmadelle contends (1) that the Mercury replaced the Cadillac described in the policy and (2) that State Farm insured all of Car-madelle’s vehicles and was notified of the purchase of the Mercury, thereby making both section (c), subsection (1) and section (c), subsection (2) applicable.

The Cadillac, according to Carmadelle, was inoperable due to a breakdown and was in a repair shop from November 18, 1977, until after the sued-on accident. The Mercury had been purchased on October 25, 1977.

In his assigned Reasons for Judgment, the trial judge stated:

“The court was not convinced from the testimony of Norris Carmadelle that he purchased the 1971 Mercury with the intent to replace the 1972 Cadillac. In fact, the evidence and testimony support a finding that Norris Carmadelle continued to drive the 1972 Cadillac for approximately three (3) weeks after the purchase of the 1971 Mercury ... Further, Norris Carmadelle testified that he did in fact drive both the 1971 Mercury and the 1972 Cadillac prior to November 18, 1977 ...”

Carmadelle cites Ray v. State Farm Mutual Automobile Insurance Company, 152 So.2d 566 (La.App.2nd Cir.1963). In Ray, the court concluded from the facts and circumstances that the insured actually intended to completely and permanently replace one vehicle with another.

The vehicle named in the Ray policy was inoperable and had been placed in a rear yard and jacked up off the ground. When the second vehicle was purchased, the tires were taken off the designated vehicle and put on the second, or replacement, vehicle. The named vehicle was not in use when the second vehicle was obtained, and it (the designated vehicle) was never driven again.

Carmadelle, on the other hand, was driving both the Cadillac and Mercury after October 25, 1977; and the record supports the trial judge’s finding that when Mr. Car-madelle purchased the Mercury, he was using it “... in addition to, not in replacement of, his other vehicle.”

After the Cadillac was repaired, it was returned to Carmadelle.

Concerning possible coverage under section (c), subsection (2), the trial judge found that Carmadelle at the time of the accident owned a 1966 Pontiac Catalina; thus, all of his vehicles were not insured by State Farm, rendering section (c), subsection (2) inapplicable.

Carmadelle said that the 1966 Pontiac had a “burnt motor” and wasn’t in use. When asked about the last time this automobile had been driven, he replied:

“During the last — oh, I don’t know, during the late ’60’s, beginning of the late middle or the late — middle ’70’s — late ’77. Early ’78 is when we were running a campaign or something and they blew the motor on it ...”

From this and other testimony, the trial judge found “... that Norris Carmadelle was the owner of a 1966 Pontiac Catalina on October 12, 1977, the date he acquired the 1971 Mercury ...” and that the 1966 Pontiac was repairable and therefore insurable. Carmadelle had the 1966 Pontiac insured until June 4, 1975, when it was replaced on a State Farm policy by the 1972 Cadillac.

Although taken off the insurance policy, the 1966 Pontiac no doubt remained in Car-madelle’s possession and was used at least to some extent after June, 1975. We cannot say the trial judge erred in his finding regarding this automobile.

This legal problem was first addressed by a Louisiana appellate court in Green v. American Home Assurance Company, 169 So.2d 213 (La.App.2nd Cir.1964). There, an automobile that did not have a battery or fuel pump and had an engine that “... had thrown a few rods ...” was found to be repairable. The relevant insurance provisions in Green were synonymous with the terms and conditions of Carmadelle’s State Farm policy.

The subject automobile in Green, as in Carmadelle’s case, had been neither junked nor abandoned but remained owned by and in the possession of the insured.

The instant record supports the trial judge’s finding that Carmadelle’s 1966 Pontiac was, as stated in Green, “.. . not in a condition which was beyond repair ...” Carmadelle’s nebulous testimony indicates this automobile may have been driven in 1977 and in 1978.

Also, while Carmadelle testified that he personally notified State Farm of the acquisition of the Mercury, the testimony of several other witnesses places this contention in serious dispute, further depreciating Car-madelle’s reliance on section (c) subsection (2) for coverage.

CONCLUSION

We will not upset a trial court’s findings unless clearly wrong, particularly if the determinations involve credibility of witnesses. See Canter v. Koehring, 283 So.2d 716 (La.1973); O’Rourke v. Tracy, 375 So.2d 747 (La.App.4th Cir.1979); Huisman v. Southern General Ins. Co., 203 So.2d 404 (La.App.4th Cir.1967), and numerous similar decisions.

Here, the preponderance of evidence sustains the decrees in favor of Barnes and State Farm against Carmadelle.

AFFIRMED.

      . Approximately 4:15 p.m.

      . A street near the Fourth Street-Laroussini Street intersection.


text:
    Harry FRIEDMAN v. HOFCHAR, INC.
    No. 5-170.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Jan. 17, 1983.

      Andrew I. Brown, Albert F. Widmer, Jr., New Orleans, for plaintiff-appellee.
    Charles E. McHale, Jr., New Orleans, for defendant-appellant.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

This eviction suit was filed in the Twenty-Fourth Judicial District Court by Harry Friedman against Hofchar, Inc., alleging that said defendant had violated lease provisions by not paying the rent, taxes and insurance premiums. Hofchar was operating a discotheque lounge at 3713 Kim Street in Metairie, Louisiana, known as the Crash Landing.

On July 22, 1981, a judgment was rendered against Hofchar, ordering it to vacate the premises within 30 days and to pay to Friedman “... the ad valorem taxes and insurance premiums called for in the ... lease ...”

The judgment, however, did not specify the amount of the ad valorem taxes and insurance premiums.

Hofchar timely lodged a devolutive appeal, contending that:

(1) There was a lack of proper service of process of the petition;

(2) Taxes and insurance were to be paid by Friedman, not Hofchar;

(3) Hofchar was not given its right of first refusal following an offer to purchase tendered to Friedman by a third party; and

(4) The money judgment in favor of Friedman was procedurally improper.

While the appeal was pending, Friedman filed a motion for summary judgment, stating:

(1) That Article 2088(7) of the Louisiana Code of Civil Procedure allows the Trial Court to retain jurisdiction over the execution of this judgment despite defendant’s appeal, and
(2) That the pleadings, exhibits and sworn affidavits annexed hereto show that there is no genuine issue of material fact as to the amount to be repaid plaintiff by defendant and that plaintiff is, therefore, entitled to a judgment as a matter of law.

Hofchar objected to the motion because Friedman had petitioned for possession of the premises only and had not asked for a money judgment. The allegation that the taxes and insurance had not been paid by Hofchar was used solely to prove default under the terms and conditions of the lease.

Nonetheless, on January 26, 1982, judgment was granted on the motion, ordering Hofchar to pay $7,330.28 to Friedman ($4,749.08 for taxes and $2,581.20 for insurance premiums paid by Friedman).

Hofchar appealed suspensively from the money judgment rendered against it, and this appeal was consolidated with Hofchar’s original appeal.

After carefully considering both appeals, we conclude that the testimony and evidence supports the judgment ordering Hofchar to vacate the premises, but that the money judgment in favor of Friedman and against Hofchar cannot stand.

SERVICE OF PROCESS

Hofchar’s initial contention on appeal is that improper service of process was made by a court-appointed special agent, Paul Sehrt, who effected service in accord with LSA-C.C.P. art. 4703, which reads:

“If the premises are abandoned or closed, or if the whereabouts of the lessee or occupant is unknown, all notices, process, pleadings, and orders required to be delivered or served on the lessee or occupant ... may be attached to a door of the premises, and this shall have the same effect as delivery to, or personal service, on, the lessee or occupant.”

This type of service is called “tacking”, and can be used by a lessor if the premises have been abandoned or closed, or when the whereabouts of the lessee is unknown.

Sehrt testified that he first went to 3713 Kim Street, which was specified in the lease as Hofchar’s address. Actually, it was the residence of Daniel Hof, Hofchar’s president.

A woman answered the door and advised Sehrt that Hof hadn’t lived at that address for three years and that she didn’t know where Hof could be located.

Sehrt then went to the leased premises, but it was closed.

Later the same day, Sehrt made contact with Albert Charbonnet, Hof’s business partner but he (Charbonnet) refused to accept the petition. Charbonnet is the “char” in Hofchar.

Sehrt returned to the Crash Landing at approximately 6 p.m. and found that “. .. the door was locked and there was nobody in the parking lot... ” Therefore, Sehrt said, he “... taped the papers...” to the front door.

Art. 4703 service of process was thoroughly discussed in Jourbert v. Tatum, 332 So.2d 553 (La.App. 4th Cir.1976). The court held the “tacking” procedure constitutional and not violative of the tenant’s due process rights, and further stated that whether such service can be used by a lessor is a factual question to be determined by the trial court.

Considering (1) the reality that Hof had apparently abandoned the Kim Street house designated in the lease as Hofchar’s official domicile, (2) Sehrt’s unsuccessful attempt to deliver the pleadings to Charbonnet and (3) the fact that nobody was present twice at the leased premises, we cannot say that the trial court erred in allowing Friedman to use the “tacking” service of process method.

TAXES AND INSURANCE PREMIUMS

According to the original lease agreement, Friedman was to pay taxes and insurance premiums until December 3,1979, thereafter Hofchar was responsible.

The original lease is dated June 2, 1977, and there were two subsequent amendments executed by the parties, one on June 22, 1979, and the other on December 11, 1979.

Neither of the amendments changed Friedman’s obligation to pay taxes and insurance premiums up to December 31,1979, and Hofchar’s responsibility to thereafter pay taxes and premiums.

In fact, the amendments did not even mention taxes or insurance premiums. The December 11, 1979, amendment was concerned with a two-year extension of the lease and with Hofchar’s right of first refusal should Friedman receive an offer to purchase the Crash Landing, and the agreement went on to state:

“All other terms and conditions of our original lease ... shall remain in full force and effect.”

On February 25, 1981, certified letters were mailed to Hofchar at both 3713 Kim Street and the Crash Landing address advising that Hofchar was in default by not paying the taxes and insurance premiums. Both letters were unclaimed and were returned. The petition for possession of the premises was filed on June 24, 1981.

Hofchar does not claim that it ever paid taxes or insurance premiums; instead, it contends that it was Friedman’s continuing obligation (beyond December 31, 1979) to pay for these items.

To justify this position, Hofchar points out that the original lease was extended by a two-year option beginning January 1, 1978, and ending on December 31,1979, and further extended by another two-year option effective January 1, 1980. Thus, Hof-char contends, Friedman’s obligation to pay taxes and insurance premiums continued past December 31, 1979, despite the clear wording to the contrary. The district judge was not impressed by this unique approach, nor are we.

In his “Reasons for Judgment” dated July 22, 1981, the trial judge found “... that the notice to the defendant as to the taxes due, was sufficient ...” as the notice was sent to Hofchar’s address as stated in the lease agreement. The “Reasons for Judgment” further state that “... defendant never notified the plaintiff that this address was incorrect..."

In our opinion, failure by Hofchar to pay the taxes and insurance premiums as clearly called for in the lease justified the district court’s order for Hofchar to vacate the leased premises.

RIGHT OF FIRST REFUSAL

By amendment to the original lease agreement, Friedman agreed that if he should receive an offer to purchase the Crash Landing, Hofchar would be given “... 90 days written notice of ... intention to sell the building, at which time the lease shall terminate unless we (Hofchar) elect to purchase the building on the same terms and conditions as made by a third party...”

Friedman did receive a $350,000.00 offer, the terms and conditions of which were forwarded to Hofchar.

Hofchar requested more information, fearful that the offer was not bona fide. However, Friedman would not reveal the name of the potential buyers because, he said, “... the people did not want their name divulged.”

Friedman contends that he complied with the lease agreement by giving Hofchar the “terms and conditions” of the offer; while Hofchar, apparently not convinced that the offer was not a sham, declined to match the $350,000.00 price. Hofchar argues that Friedman, to prove that the offer was legitimate, was required to provide Hofchar with the name of the persons submitting the offer or a copy of the actual agreement to purchase.

Hofchar cites Crawford v. Deshotels, 351 So.2d 295 (La.App. 3rd Cir.1977), but the facts and circumstances of Crawford are different from those now before us.

Hofchar did not see the third party’s formal and legitimate offer to purchase until the trial of this matter on July 17, 1981, when the offer was placed in evidence. The property was in fact sold for $350,-000.00 on September 1, 1981; and we note that at no time, either before or after July 17, 1981, did Hofchar advise Friedman that it would exercise its option to purchase the Crash Landing site for $350,000.00.

Had Hofchar paid the taxes and insurance premiums in accord with the original lease, it would have been in better legal posture to defend against a petition for possession based only on a proposed sale, the terms and conditions of which were unmatched by Hofchar after the required 90-day notice. But such is not the case.

THE MONEY JUDGMENT

As aforesaid, Friedman petitioned for possession of leased premises as authorized by Title XI of the Louisiana Code of Civil Procedure. He did not ask for a money judgment.

Service of process was by the “tacking” procedure, which does not subject the lessee personally to the court’s jurisdiction.

This was a summary proceeding, and the Supreme Court of Louisiana has said, in Major v. Hall, 262 La. 243, 263 So.2d. 22 (1972), that money damages are not recoverable in summary proceedings on a rule to show cause.

From Major:

“Damages, in the absence of special provisions, may only be recovered via ordina-ria."

Title XI does not contain any “special provisions” allowing a lessor to recover anything but the leased premises via the summary process. The lessor may, of course, proceed via ordinaria to recover unpaid rent or anything else owed by the lessee.

Accordingly, the money judgment in favor of Friedman in this possession suit was inappropriate.

CONCLUSION

We affirm the judgment of the Twenty-Fourth Judicial District Court ordering Hofchar to vacate the Crash Landing premises because of nonpayment of taxes and insurance premiums; and we annul and set aside the judgment in favor of Friedman and against Hofchar in the sum of $7,330.28.

AFFIRMED IN PART, REVERSED IN PART.


author: MELVYN J. PEREZ, Judge Pro Tem.

text:
    Andrew J. WARE v. Elizabeth P. WARE.
    No. 5-35.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Andrew J. Ware, in pro. per.
    Santo A. Dileo, New Orleans, for defendant-appellant.
    Before SAMUEL, GAUDIN, JJ., and PEREZ, J. Pro Tem.
   MELVYN J. PEREZ, Judge Pro Tem.

The record indicates that on September 2, 1980 Mrs. Elizabeth Ware, defendant-appellant, filed a Rule for Increase in Alimony and Child Support. On September 26,1980, her husband, Andrew J. Ware, filed a Rule for Settlement of Community Funds in a Exxon Thrift Fund and for Termination of Alimony and Reduction of Child Support.

Testimony given by Mrs. Ware indicated that she was previously employed by Independent Towing Company but lost her position due to excess absentism due to her illness. She presented an income and expense sheet showing that she needed $1,150.00 per month for her benefit and the benefit of her minor child, age 15.

Mr. Ware presented testimony indicating that his take-home salary from his job at Exxon was $1,800.00 per month; however, Mr. Ware had borrowed certain monies in order to build a four-plex and $500.00 per month was taken from his check to repay the loan. In addition, Mr. Ware paid 6% of his salary into the Exxon Thrift Fund, and therefore his net salary should be approximately $2,450.00. In addition thereto Mr. Ware’s present wife is employed and she receives $1133.48 from the Jefferson Parish School Board per month for nine months out of the year. Therefore, if we compute her salary on a 12 month basis, then her monthly salary is $944.45.

Much conflicting testimony was given as to what each party owns and what the true income of each party is per month. Mr. Ware testified that his present wife does own separate rental property which is at the present time being operated at a loss. Allegations were made that defendant-appellant, Mrs. Elizabeth Ware, had a considerable inheritance due her from her father’s estate in Mississippi; however, defendant-appellant testified that she received no income from that estate, and that whatever monies were derived therefrom were being used by her mother to pay the outstanding bills.

The trial judge indicated that he was thoroughly familiar with all of the circumstances involved in this matter, and that the case had been before him for the last nine or ten years. The trial judge rendered judgment on February 4,1981 and increased alimony payments from $150.00 to $325.00 and increased child support payments from $400.00 to $425.00 for a net increase of $200.00 per month. We have had the opportunity to examine these facts and figures and feel that the trial judge did not abuse his discretion in granting an increase in this particular amount.

Likewise much testimony was given by both Mr. and Mrs. Ware relative to the stock in the Exxon Thrift Fund. This particular problem had been before the trial judge since the termination of the community between the parties which occurred on November 11, 1974. The record indicates that the employees of the Thrift Fund had been before Judge Frank Y. Zacearía on at least five different occasions and each bit of information that could have been given by Exxon in a attempt to settle this matter was, and had been before the court. Judge Zacearía found it necessary to order Mr. Ware to obtain information from Exxon’s office in Houston, Texas in order to calculate the interest that Mrs. Ware still had in the thrift fund as part of her community settlement. The record also had a letter dated September 22, 1980 from Exxon showing the amount in the thrift fund on the date of the termination of the community. Based on the figures before him and after dealing with this matter for enumerable years, Judge Zacearía determined what interest Mrs. Ware did have in the community and ruled accordingly. Judge Zacearía in his judgment of October 24, 1980 stated that Mrs. Ware was entitled to 152 shares of stock having a value of $78.75 per share, and the total value of said interest amounted to $11,970.00. In his computations Judge Zacearía took into consideration interest ac-cured and other increments involving said stock. We likewise have had a chance to review his findings and affirm the judgment of the trial court.

AFFIRMED.