author: MARVIN, Judge.

text:
    SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. Billie J. Cummings POLAND, et al. Charles Wesley JORDAN, et al. William Travis LOWREY, et al. William Travis LOWREY, et al. Steven W. SUTTON, et al. Elmer D. WALKER, et al. Glenn C. LOWREY, et al. Grace PRUITT. Larry C. SUTTON, et al. Bill C. SUTTON, et al., Defendants-Appellants.
    Nos. 14670-14679.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      Bobby L. Culpepper, Jonesboro, Hal R. Henderson, Arcadia, for defendants-appellants.
    Liskow & Lewis, by Robert T. Jorden, John M. Wilson & Frederick W. Bradley, New Orleans, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In these nine appeals in ten consolidated actions under LRS 19:2(5), the judgments expropriated from the several defendants their respective rights in and above an underground reservoir for the storage of natural gas, fixed compensation to be paid for those rights, and in six cases, cast plaintiff Southern Natural with costs and attorney fees incurred by defendants.

In 12 assignments of error in these appeals, defendants question the constitutionality of the expropriation statutes and whether the statutory requirements for expropriation were met by Southern Natural. Alternatively, defendants seek to increase the amount awarded as compensation. Southern Natural’s answer in six appeals seeks to amend the judgments where Southern Natural was cast for costs and attorney fees. We amend and affirm.

PREFACE

THE CONSTITUTIONAL AND STATUTORY REQUIREMENTS

LSA-Constn. Art. 1, § 4, expressly provides that the right of a person to own and enjoy private property is subject to the reasonable exercise of police power and that for a public and necessary purpose, with just compensation paid to the owner, private property may be expropriated by a private entity authorized by law to expropriate.

LRS 19:2(5) provides that if a price cannot be agreed on with the owner of property [after good faith negotiation], the needed property may be expropriated by any domestic or foreign corporation created for the piping and marketing of natural gas for the purpose of supplying the public with natural gas. In a later enacted statute, LRS 30:22, the legislature has declared that the underground storage and reservation of large quantities of natural gas, for orderly withdrawal in periods of peak demand by the consumer, is in the public interest and public purpose.

LRS 30:22 requires any person, prior to and as a condition precedent to exercising the power to expropriate any underground reservoir for the storage of natural gas, to obtain the express approval of the Commissioner of Conservation. Under this statute, the Commissioner is required to give notice to the persons affected by the expropriation, hold hearings and to determine

—that the reservoir is suitable and feasible for the purpose;

—that no reservoir which is capable of producing oil in paying quantities shall be used for storage purposes unless such reservoir has a greater value for storage than the production of the remaining volumes of original reservoir natural gas and condensate, and at least %ths of the owners in interest, exclusive of any “lessor” defined in LRS 41:1261, have consented to such use in writing,

—that the storage will not contaminate other formations containing fresh water, oil, gas, or other commercial mineral deposits, and

—that the storage will not endanger lives or property.

The Commissioner is also required to determine the amount of the original commercially recoverable gas and condensate remaining in the reservoir, if any. See LRS 30:22(B) and (C).

The Commissioner’s order may be appealed or challenged in judicial proceedings at the Commissioner’s domicile in East Baton Rouge Parish. When final, the Commissioner’s order shall be taken as prima facie valid and may not be collaterally attacked. LRS 30:12. Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 46 So.2d 113 (1950); Brown v. Alice-Sydney Oil Co., 343 So.2d 745 (La.App. 2d Cir. 1977).

Natural gas marketing companies do not enjoy quick-taking expropriation power such as is enjoyed by the Department of Highways, but must first establish in an expropriation action, the public and necessary purpose to be served by the expropriation (LSA-Constn. Art. 1, § 4), the approval of the Commissioner of Conservation (LRS 30:22(B)), and that good faith negotiation has been conducted with the owner for acquisition of the property (LRS 19:2(5)). After these prerequisites have been established the amount of just compensation under LSA Constn. Art. 1, § 4, is to be judicially determined. Compare LRS 48:441 and LRS 19:2 et seq.

Obviously in an effort to expedite a Title 19 expropriation, the legislature requires that a defendant file all of his defenses within 15 days after he has been served with notice of the trial date. This requirement prevents a defendant from raising defenses piecemeal and protracting the litigation. LRS 19:6, 7.

Southern Natural filed 75 suits in 1979 for expropriation in this project in the Bear Creek field in Bienville Parish, only 15 of which remained pending for trial in September 1980. Earlier in 1980 in appeals in nine cases, we noted that the trial court had found the requisite good faith negotiation, the approval of the Commissioner, and the necessary and public purpose of the project. Southern Natural Gas Co. v. Poland, 384 So.2d 528 (La.App.2d Cir. 1980). Writs were denied by the Louisiana Supreme Court. 386 So.2d 363 (La.1980).

Thereafter, and shortly before the September 1980 trial date, in nine of the cases here appealed, defendants-appellants filed exceptions, pleas of unconstitutionality, and motions to continue the trial. The trial court dismissed the suits on an exception which attacked the Commissioner’s order approving the storage of gas in the reservoir, but did not rule on the plea of constitutionality or on the motion for continuance. We granted supervisory writs, reversed the trial court, overruled the exception attacking the Commissioner’s order and remanded the cases for trial on September 10,1980, stating in an unpublished order on September 8, 1980:

“Even if these exceptions were timely filed and [even] if Bienville Parish is a parish of proper venue in which to question the sufficiency of an Order of the Commissioner of Conservation (which questions we do not now reach), we find the Order of the Commissioner of April 20, 1979, to be in compliance with LRS 30:22.”

The Louisiana Supreme Court upheld this order by denying an application for review of this order. 380 So.2d 80 (La.1980). The trial court then denied a continuance and these cases proceeded to trial.

After a five day trial on the taking issue, the trial court found that the proposed expropriation was for a public and necessary purpose, that Southern Natural was a corporation authorized to expropriate and had obtained the proper order or orders giving the approval of the Commissioner of Conservation, and that Southern Natural had negotiated in good faith with the owners before petitioning for expropriation. After this ruling the compensation issue was tried and determined by the court.

ASSIGNMENTS OF ERROR 1-6

Appellants continue their attack on the Commissioner’s order in assignments 1 and 2, arguing, among other things, that the reservoir in question is capable of producing oil in paying quantities, that Southern Natural is not a prudent operator, that Southern Natural knowingly presented false information to the Commissioner and acted fraudulently and unfairly to obtain the Commissioner’s order, and in respect to acquiring property rights in and above the reservoir, Southern Natural has attempted “to take . . . through coercion, fright and deceit.” In essence, appellants seek that we reverse the judgments ordering expropriation on the grounds that the Commissioner’s order is invalid and not in compliance with the statute.

An order of the Commissioner of Conservation is not sacrosanct and may be attacked on any grounds in a hearing called for that purpose before the Commissioner. Any interested person has the right to have the Commissioner call a hearing for the purpose of taking action on a matter within his jurisdiction and the Commissioner is required to promptly call a hearing. LRS 30:6(F). An interested person affected by an order of the Commissioner may obtain judicial and summary review of the Commissioner’s order by filing suit at the Commissioner’s domicile in East Baton Rouge Parish. LRS 30:12.

Courts have consistently upheld these legislative limitations as to where review of the Commissioner’s order may be obtained. Interstate Oil Pipe Line Co. v. Guilbeau, supra; Brown v. Alice-Sydney Oil Co., supra; Theriot v. Mermentau Resources, Inc., 385 So.2d 939 (La.App. 3d Cir. 1980). Until the order of the Commissioner is modified or annulled as the legislature directs, the order is prima facie valid and is not subject to collateral attack. The legislature simply has not given the Bienville Parish District Court or this court the jurisdictional authority to adjudge invalid an order of the Commissioner of Conservation. That authority has been given to the courts having geographical jurisdiction in East Baton Rouge Parish, the domicile of the Commissioner of Conservation.

Thus, any question as to the validity or correctness of the determinations that the legislature has required the Commissioner to make in LRS 30:22(B), must be raised in a direct proceeding either before the Commissioner or against the Commissioner in a judicial proceeding at his domicile. Assignments 1 and 2 present no error. We note that most of the § 22 determinations the legislature has required the Commissioner to make require the technical expertise of geologists, engineers and other experts available to the Conservation Commission which is generally charged by the legislature with the great public duty of monitoring the natural resources of the state.

The legislature has also required that expropriation actions under LSA-Constn. Art. 1, § 4 and LSA 19:2(5) be instituted in the district court of the parish where the property is located and that certain prerequisites be established to the satisfaction of the court before expropriation may be ordered. The first prerequisite is that the expropriator shall have obtained the express approval of the Commissioner of Conservation for using an underground reservoir for natural gas storage purposes. The second is that the expropriator shall have negotiated with the owner to acquire the right to store natural gas in the reservoir. Courts have added the requirement that this negotiation must have been “good faith” negotiation. Once the court is satisfied that these prerequisites have been met, the court is constitutionally required to make the determination whether the expropriation is for a public and necessary purpose, and, if so, to determine just compensation for the property right that is ordered expropriated.

Appellants assert in assignment 3 that the bodies of the two statutes in question are broader than their titles and are in conflict with the constitutional requirement that the public and necessary purpose of the expropriation is to be judicially determined. The first argument of broadness was squarely presented in Mid-Louisiana Gas Co. v. Sanchez, 280 So.2d 406 (La.App. 4th Cir. 1973), writs denied, and the statutes were held constitutional. When writs were denied in that case by the Louisiana Supreme Court in 1973, the issue of these expropriation statutes being unconstitutional because of broadness beyond title was resolved.

The second constitutional argument, also presented in assignments 4 and 6, questions whether there was a judicial determination that the storage of natural gas in the Bear Creek reservoir is for a public and necessary purpose. The fact that the legislature has declared public policy in LRS 30:22(A) and has required the Commissioner of Conservation to hold hearings and make similar findings of public necessity and purpose, does not relieve the trial court of its constitutional duty of making the eventual determination. The constitution does not forbid the legislature from adding reasonable statutory prerequisites for expropriation that are obviously designed for the protection of the public and the fulfillment of the constitutional mandate of public purpose and necessity. LSA-Constn. Art. 1, § 4. Findings and orders of public administrative agencies may be considered as evidence in a judicial proceeding for the purpose of determining public and necessary purpose. See Texas Eastern Transmission Corporation v. Bowman, 238 La. 399, 115 So.2d 797 (1959); United Gas Pipe Line Company v. Landry, 228 So.2d 565 (La.App. 1st Cir. 1969).

In addition to evidence of the findings and orders of the federal and state agencies here involved, Southern Natural produced direct testimony about the storage project and its function from one of its engineers, who is a 32-year employee and an assistant vice president of the company. Southern Natural produces and sells gas to gas companies who then further distribute and resell the gas to the individual consumer, usually in interstate commerce. These companies and Southern Natural are regulated by governmental agencies because of their public utility function.

During slack periods of consumer demand, natural gas would be injected into the reservoir. During peak periods of demand this gas would be released into the pipeline for eventual consumer use when the normal supply of gas from producing wells is not sufficient to meet the peak demand. This witness also testified that the storage of natural gas in the porous rock of essentially depleted reservoirs is an efficient, economic, and proven way to better meet the peak demand for gas by the public, and that the Bear Creek reservoir is such an essentially depleted reservoir of adequate size and character to accomplish this purpose. The trial court referred to this testimony and to the public agency findings and orders as the basis for determining that the expropriation was for a public and necessary purpose.

Appellants did not offer evidence to contradict this evidence and the trial court made its determination of public and necessary purpose on the basis of uncontradicted evidence and testimony. We find no evi-dentiary foundation in this record for appellants’ allegations that the trial court “rubber stamped” the findings of the governmental agencies.

Assignments 3, 4, and 6 present no error.

The fifth assignment is that the trial court erred in determining that Southern Natural had negotiated with defendants (LRS 19:2), in good faith (Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App. 3d Cir. 1969), writ refused). This determination can only be made on the circumstances of the individual case and essentially calls for a factual determination by the trial court that is entitled to great weight on appeal. Dixie Electric Membership Corporation v. Watts, 268 So.2d 128 (La.App. 1st Cir. 1972); Southwest La. Elec. Membership Corp. v. Lemon, 338 So.2d 367 (La.App. 3d Cir. 1976), writ refused.

Southern Natural’s agents testified about negotiating with these defendants and that they kept daily logs of the contacts made with these defendants beginning in 1978. The logs were introduced into evidence. In addition to these contacts by telephone and in person, plaintiff sent defendants certified letters inviting negotiation. Where the petitioner for expropriation shows contacts with an owner prima facially indicating good faith negotiation, the owner must introduce circumstances to overcome this prima facie indication. See Dakin and Klein, Eminent Domain in Louisiana, p. 301 (1970).

The statute requires negotiation as a prerequisite to bringing suit for expropriation. Before the suit was brought in 1979 it was not necessary that negotiations for community property rights be conducted with both the husband and wife. The husband, as the head and master, could bind the community. Appellants have not overcome the prima facie indication that plaintiff’s negotiation, however fruitless, was other than in good

faith. Substantial evidence supports the trial court’s determination of good faith negotiation and assignment 5 presents no error.

JUST COMPENSATION

The determination of what amount will compensate the owner of a property right to the full extent of his loss because of expropriation of the right must be made on the basis of the facts of each case and in accord with the uniqueness of the thing taken. Trunkline Gas Co. v. Rawls, 394 So.2d 1250 (La.App. 2d Cir. 1981).

Compensation is payable for the value of the recoverable natural gas and condensate remaining in the reservoir, the value of the underground storage right, and the value of the servitude rights on the surface. The unrecoverable gas in the reservoir may be considered as an element or factor in determining the value of the storage right. Mid-Louisiana Gas Company v. Sanchez, supra.

The trial court accepted Southern Natural’s expert testimony and found the amount of recoverable gas and condensate to be the amount shown in the Commissioner’s order, less the amount that was shown to have been produced since November 1, 1978. The fair market value of recoverable gas and condensate was determined from the testimony of another expert who allowed a 20 month production time and applied a reasonable discount to reach a present value for the gas arid condensate. The price of gas was based on the ceiling set by the Federal Energy Regulatory Commission, the government agency that sets the price of interstate gas. Condensate was based on market price per barrel. Defendants offered no expert testimony as to (.he value of the recoverable gas and condensate, but presented a geologist who testified that there was a “possibility” that there was more gas and condensate in the reservoirs) than had been represented to the Commissioner and to the court.

The court determined the surface value and reservoir value from plaintiff’s expert who used the market data, comparable sales, approach. The highest and best use of the surface was found to be for the production of timber, except that some tracts were better suited for rural home-sites or pasture. Timber was appraised by other appraisers. Plaintiff’s expert used 41 comparable sales as a basis for his appraisal. These sales occurred prior to the Commissioner’s order. Defendants’ appraiser based his appraisal on one sale (called the Enterprise sale) he contended was comparable but which he had not “verified”. The court accepted the defendants’ witness as an expert appraiser, but rejected his appraisal because it was based only on this one comparable. The court accepted the estimate of the quantity of timber on one tract that was made by defendants’ expert. The court accepted the higher appraisal of plaintiff’s expert as to the unit value of the timber to reach the total value of the timber on that tract.

The court determined the value of the storage right on the basis of expert testimony offered by plaintiff’s appraiser, whose testimony had also been accepted by the court as the basis for the court’s determination of the value of the surface rights. This appraiser analyzed sales of storage rights by 177 owners in the Bear Creek field, all of which had been made before expropriation suits were filed. These sales revealed an average price of $222 per acre, and included five sales where the seller was considered as knowledgeable as the purchaser about the method of determining the value of the storage right. This group was paid prices ranging from $187 to $205 per acre for the storage right. Plaintiff’s appraiser and appraisers for sellers in this group were familiar with and utilized the appraisal approach approved in the 1973 case of Mid-Louisiana Gas Co. v. Sanchez, cited supra.

In this group of knowledgeable sellers was Continental Group, Inc., which owned 3900 acres, constituting 30 percent of the total acreage needed for the storage right. Continental knew that unless it sold its storage right to plaintiff, plaintiff could not have exercised the statutory expropriation power, and to this extent, Continental was in much better bargaining position than was plaintiff. Continental had the services of two attorneys and two geologists, one of which had been an appraiser for the property owners in the 1973 Sanchez case. Continental’s executive vice president, who conducted the negotiations for Continental, testified that he knew that Southern Natural could not expropriate Continental’s property rights, that Continental was represented by competent experts, and that Continental’s decision to sell its storage rights was made on the basis that it was preferred to make the best bargain possible to sell the storage rights over continuing to own its interest in what would have been eventually an empty and essentially worthless underground reservoir. Continental was paid $195.38 per acre for its storage rights.

THE SANCHEZ DECISION

Defendants’ assignment 7 complains that the trial court erred in interpreting the Sanchez decision. Sanchez expressly rejected the argument that the value of the storage right should be determined by what it would cost to replace the unrecoverable gas in the underground reservoir. Sanchez held that market value, comparable sales, was the method by which the value of the storage right should be determined and that the presence of unrecoverable gas in the reservoir was a factor or an element which could be used to determine the value of the reservoir to be used for storage purposes. This was the approach taken by plaintiff’s appraiser and the trial court and we find no error in assignment 7.

THE ENTERPRISE SALE

In 1976, Enterprise Products Company purchased 174 acres, subject to timber and minerals being reserved, for a price in excess of $600,000. This property, which is about seven miles from the Bear Creek property and is adjacent to the Arcadia municipal limits, contains a huge salt dome. The property was acquired for the storage and marketing of liquid hydrocarbons in a hollow cavity created by washing out a portion of the salt. Plaintiff’s expert witness explained that the salt dome cavity of 174 acres was well suited for the storage of liquid hydrocarbons (butane and propane) and was 47 times greater in BTU heating capacity per area unit than was the porous rock reservoir. Defendants produced no comparable expert with respect to the suitability or comparability, but relied on its expert appraiser to testify that he considered this as the one comparable sale solely on the face of the public record.

The trial court accepted defendants’ witness as an expert appraiser, but rejected his appraisal based on market value determined solely by the Enterprise sales price. Defendants’ assignment 8 asserts that this was error. We cannot agree. A trial court has great discretion in accepting and weighing expert testimony to determine just compensation. In the absence of a showing of manifest error and where the determination is reasonably supported by expert evidence, the trial judge’s determination will be upheld on appeal. City of Shreveport v. Pupillo, 390 So.2d 941 (La. App. 2d Cir. 1980).

OTHER ASSIGNMENTS

Appellants contend in the remaining assignments 9 — 12 that the awards are inadequate, that greater rights have been taken than prayed for, that attorney fees and expert witness fees should be increased, and that the evidence proffered should negate the public and necessary purpose of the expropriation and the awards as being just compensation. Except for the quantum of the fees and the just compensation issues, the thrust of these assignments have been considered under the heading “Assignments 1-6”, and have been found to be without merit.

We reiterate that for expropriation of an underground reservoir for natural gas storage, the statute requires only that the petitioner show express approval of the Commissioner, good faith negotiation, and the public and necessary purpose of the expropriation. Whether or not the reservoir is capable of producing oil and in paying quantities, whether or not three-fourths of the owners in interest have agreed to the reservoir being used for the storage of natural gas, whether or not the reservoir is suitable and feasible for the storage of natural gas, and all other determinations set forth in LRS 30:22B which are required to be made by the Commissioner, are matters to be contested before the Commissioner or in an action against the Commissioner, and are not before the court in an expropriation action. The proffered evidence could possibly be weighed and construed by the Commissioner or by a court having jurisdiction to negate a Commissioner’s order, as grounds to modify or reverse the Commissioner’s approval of the use of the reservoir for the storage of natural gas. But neither the lower court nor this court has authority to modify or reverse the Commissioner’s order approving this reservoir for the storage of natural gas on any evidence, including that of fraud, as is alleged by defendants. Assignment 12 presents no error.

The rights expropriated here include the storage right, here belonging to the landowners, the servitude on the surface for the laying of pipelines and other facilities for the operation of the project, also belonging to the landowners, and the right to participate in the production of the remaining recoverable natural gas and condensate in the reservoir, belonging to either or both the land and the mineral right owners. These rights are not greater than the expropriation statutes or than the expropriation petition sets forth. Assignment 10 presents no error.

Assignment 11, with respect to the amount of attorney fees awarded, will be discussed under the general heading, “Attorney Fees”. Assignment 11 also complains that defendants’ appraiser was not allowed an expert witness fee. In these matters, the trial court is vested with great discretion and is authorized to disallow expert fees to witnesses whose testimony is found to be valueless. Louisiana Intrastate Gas Corp. v. Guidry, 357 So.2d 830 (La.App. 3d Cir. 1978), writ refused, Assignment 11 presents no error in this respect.

QUANTUM OF AWARDS

Appellants do not contest the amount awarded for the recoverable gas and condensate, but do contend that the award for storage rights and surface servitude should be increased from $285 per acre to $3500 per acre, the value estimated by defendants’ appraiser and rejected by the trial court. See Assignment 8, supra. We reiterate that there are three distinct categories of rights taken, the right to the recoverable gas and condensate, the servitude of use of the surface, and the right to the use of the underground reservoir for storage of natural gas. Each defendant owns one or more of these rights. We show the amount of the award in each category and the highest amount that was offered by plaintiff in each appeal.

A trial court’s determination of market value made from and reasonably supported by competent expert testimony will be upheld on appeal. The appellate court will review the record to decide whether the trial court’s factual determination is reasonably supported by evidence. City of Shreveport v. Pupillo, supra. The testimony of plaintiff’s experts constitutes competent expert testimony and reasonably supports the lower court’s value determination. Assignment 9 presents no error.

ATTORNEY FEES

If the highest amount offered by the expropriator is less than the compensation awarded to the owner of the property right expropriated, LRS 19:8 provides that the court may award reasonable attorney fees. Abuse of discretion in assessing the award, and its reasonableness, can only be determined by the circumstances of the individual case. See City of Shreveport v. Pupillo, supra. Defendants complain the award is too low. Plaintiff complains that the award is too high. Each litigant contends that the trial court manifestly erred and abused its discretion.

State v. Ransome, 392 So.2d 490 (La.App. 1st Cir. 1980), set forth 10 factors which might be considered in determining an award of attorney fees. These factors include the intracacies of the facts and law involved, the diligence and skill of counsel, the number of appearances made, the extent and character of the labor performed, the amount involved, the importance of the litigation, and the trial court’s knowledge of the services.

Attorney fees were awarded in six cases. The excess awarded over the total offered in these six cases was $29,910.65. The attorney fees awarded in these cases totaled $39,207.06. While this case is important to these litigants and shows some of the ingenuity of defendants’ counsel, only those issues that are common to expropriation actions under LRS Titles 91 and 30 are presented. Much of the time and effort of defendants’ counsel was expended on issues which have been settled by legislative act or by court decision prior to this litigation. The constitutional issue of broadness beyond title was settled in Sanchez. The jurisdictional authority to assail orders of the Commissioner of Conservation was made in Act 190 of 1962 (now LRS 30:22) and has been settled by numerous court decisions since that time. The market value method of determining value, with consideration of the factors of cushion gas remaining in the reservoir, special adaptability of the reservoir for storage, and the effect of the completed reservoir on future exploration for minerals at greater depths, was approved in Sanchez and more recently by this court in Trunkline Gas Co. v. Rawls, cited supra.

In Rawls, the appraiser for the defendant owners used these factors and the trial court awarded $21,568, using this appraisal over the $2,785 appraisal of the plaintiff gas company. We affirmed, emphasizing that the determination of value must be made on the basis of the facts and the uniqueness of the thing taken in each individual case. We increased the award of attorney fees in Rawls from $2,500 to $6,200 on the factor of the difference of the amount offered and the amount awarded, analogizing LRS 19:8 to LRS 48:453(E). Considering the several Ransome factors, and particularly the total amount of the award over the total offered and the character and extent of the labor performed on the crucial issue of just compensation, we find the amount awarded as attorney fees to be unreasonable and an abuse of discretion. We shall amend the award in each case to reduce the attorney fee award which is more broadly in line with Rawls and the approach taken there. The fact that several cases were consolidated benefits defendants’ counsel because of the commonality of issues in each category of rights taken.

CONCLUSION

The remaining twelfth assignment of appellants presents no error. The proffered evidence that the Pettit Zone reservoir contains two separate zones and is capable of producing greater commercial quantities of oil and gas than was fraudulently represented to the Commissioner of Conservation by plaintiff, is relevant to issues triable before or against the Commissioner at the Commissioner’s domicile in East Baton Rouge Parish. LRS 30:22(B), § 12, § 6(F). Defendants’ own witness in the proffer stated that he did not disagree with the Commissioner’s order as to the estimated quantity of gas and condensate in the reservoir. The trial court noted that defendants did not “follow through” on the trial court’s offer to hear the proffered witnesses’ testimony as evidence bearing on the issue of just compensation.

Appellee’s complaint about being assessed with costs does not present error.

In its letter to each defendant before the expropriation action was filed, plaintiff stated:

“Southern Natural is hereby contacting each of you in a good faith effort to reach agreement on the acquisition of the storage rights needed for the development and operation of the reservoir. In this regard it previously offered [you] as compensation . . .
“The company’s offer in this regard was refused. Because of Southern Natural’s desire to avoid additional litigation, the offer for the acquisition of these rights was increased to ... an amount greatly exceeding the fair market value of the storage rights. * * *
“Southern Natural is entitled under law to bring an expropriation proceeding before a court of proper jurisdiction to obtain the necessary gas storage rights discussed above if it is unable, after good faith negotiations, to acquire the needed rights by agreement. Furthermore, state law provides that the property owners will be assessed costs of the expropriation proceedings if it is ultimately determined that Southern Natural has tendered at least the true value of the property rights sought to said owners before proceeding to a judicial expropriation.”

LRS 19:12 provides:

“If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.”

This court has held that because the assessment of costs relates directly to the owner’s right to just compensation, LRS 19:12 must be strictly construed. Louisiana Gas Purchasing Corp. v. Sincox, 368 So.2d 816 (La.App. 2d Cir. 1979). Other cases have suggested an analysis of the issue of assessment of costs in expropriation actions by distinguishing between actual tender and offer of true value of the property and whether the evidence revealed that an actual tender would have been to no avail and vain and useless. Louisiana Resources Co. v. Fiske, 356 So.2d 110 (La.App. 3d Cir. 1978).

Here the trial court assessed costs to the plaintiff only in those cases where attorney fees were awarded. We note that the test for assessing attorney fees is the highest offer test of LRS 19:8, while the test for assessing costs is the tender of true value test of LRS 19:12. While the trial court made no express findings about the tender test, we must view the record most favorably towards upholding the judgment, but must construe the statute in favor of the property owner and strictly against the expropriator because the statute is in derogation of the rights of the property owner. In this respect, however, we cannot construe § 12 tender identically with § 8 offer, and we find that the offer here was not any stronger than in Sincox, supra, where we held that an offer of the identical amount awarded by the court was not equivalent to a § 12 tender for the purposes of assessing costs. In Sin-cox the expropriator there mailed to the owner of the right a draft for the property

right that was eventually expropriated, accompanied by a conveyance instrument, which, if executed, would have conveyed that right to the expropriator. Accordingly, we amend the judgment in each case to assess costs to plaintiff.

DISPOSITION

All judgments appealed are amended to cast plaintiff with costs.

In these appellate docket numbers the judgments are amended to reduce attorney fees as is shown:

As amended, and at appellee’s cost, judgment in each case is AFFIRMED.

      . This reservoir is porous limestone called the Pettit Zone at a depth of 6968-7080 feet underlying about 13,000 surface acres in the Bear Creek Field about 7 miles south of Arcadia, seat of Bienville Parish.

      . Defendant in our docket No. 14,671, Charlie W. Jordan, has questioned the validity of the Commissioner’s Order in an action against the Commissioner in East Baton Rouge Parish. That action is yet pending. See Jordan v. Sutton, 401 So.2d 389 (La.App. 1st Cir. 1981). Jordan is represented in that action by the same counsel in this appeal and some of the issues raised there are raised here.

      . The log in appellate docket nos. 14,672 and 14,673, for instance, shows that plaintiff’s agents contacted defendant William Travis Lowrey on these occasions before suit was filed:
      “DATE: August 30, 1978
      “OFFER: $10,960 for Option Agreement with a portion payable upon execution of the Agreement and the balance due upon exercise of the Option by Southern Natural Gas Company. * * *
      “DATE: October 26, 1978
      “OFFER: $13,334 for an Option Agreement with a portion payable upon execution of the Agreement and the balance due upon exercise of the Option. Additionally, an offer of $800 per acre for permanent rights-of-way, the number of acres to be determined immediately upon completion of the installation of such surface facilities. * * *
      “DATE: December 21, 1978.
      “OFFER: $28,050 for an Option Agreement with $800 per acre for permanent well sites and rights-of-way acreage. * * *
      “DATE: April 4, 1979 “OFFER: $28,050 (It is noted that the Agent was supposed to have increased the offer at this time; however, this was not done.) * * *
      “DATE: August 6, 1979
      “OFFER: $68,680 total payable in full upon execution of the Agreement. This offer was based on an ownership of 189.169 surface acres, 48.563 mineral and royalty acres, 1.355 MCF gas, 9.207 barrels of condensate together with the anticipated use of 8 acres permanent well sites and rights-of-way at $1,500 per acre and 7 acres of temporary workspace at $750 per acre.
      “COMMENTS: Mr. Lowrey maintained his same position as previously stated in that he does not desire to sell and convey any property rights but would be willing to discuss terms for a lease of the desired storage rights. He further objected to the right to drill water wells as deemed necessary, contending that an overabundance of such wells might lower present water tables. Mr. Low-rey indicated he might consider leasing specified water rights along the same lines that he would consider leasing storage rights. During the course of this meeting, an offer was presented to Mr. Lowrey in the amount of $1,200 per acre for the purchase of 7.18 acres of land adjacent to the existing Southern Natural Gas Company station site at Bien-ville. Prior attempts to purchase this property before the acquisition of storage rights had been unsuccessful. It was the desire of Southern Natural to purchase 5.57 acres, but due to the configuration and lay of the land, they were willing to purchase an additional 1.61 acres as well. Mr. Lowrey stated that he had attempted to negotiate a deal with Southern Natural earlier and that they had not seen fit to consider his terms; therefore, he saw no reason to consider or discuss this property further. Mr. Lowrey was advised that this was our final contact as well as our final attempt to purchase the desired storage rights.”

      . See footnote 2.

      . See section on “Just Compensation.’

      . DOCKET NUMBER AMOUNT OFFERED AMOUNT AWARDED ATTORNEY FEES

      . “Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

      . In Sincox we upheld a judgment equivalent to the highest amount offered the owner even though the only expert testimony was that the fair market value was less than the offer. The offer there was not said to be in “excess" of market value and was not conditioned or made “to avoid additional litigation” as it was here. See Southern Natural’s letter to owners, quoted supra.


source: Caselaw Access Project

license: Public Domain

text:
    SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. Bill C. SUTTON, et al., Defendants-Appellants. SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. SUN FRESH FARMS OF LOUISIANA PARTNERSHIP, et al., Defendants-Appellants.
    Nos. 14684, 14685.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      Bobby L. Culpepper, Jonesboro, Hal Henderson, Arcadia, for defendants-appellants.
    Liskow & Lewis by Robert T. Jorden, John M. Wilson & Frederick W. Bradley; New Orleans, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

These appeals arise out of two expropriation actions that were later tried and are companion eases to the appeals reported this date in Southern Natural Gas Company v. Poland, et al., 406 So.2d 657 (La.App.2d Cir. 1981). Issues relating to the taking of the respective rights of the defendants in two acres in these consolidated cases were tried by the trial judge, while the compensation issue was tried by jury.

All of the taking issues here raised by defendants-appellants were included among the issues resolved in Poland, supra, and for the reasons assigned there, we find them without merit here.

The Sutton defendants are not land owners, but own small fractional interests in the right to recover the recoverable natural gas and condensate in the reservoir underlying two 40 acre tracts and are entitled to just compensation therefor. The only expert evidence before the jury of the quantity and the value of the recoverable gas and condensate was presented by Southern Natural. Defendants presented no expert opinion evidence. The reservoir was 98 or 99 percent depleted when these cases were tried. The uneontradicted testimony established that the value of the Sutton interests in the recoverable natural gas and condensate in this reservoir totaled $73.23, or $10.55 for Mrs. Sutton’s separate interest and $62.68 for the interest of the community estate existing between her and her husband. Yet the jury awarded $2,438.75.

The Sun Fresh defendants own the surface of a two acre tract, but do not own any mineral rights. Surface ownership, however, includes the right to the use of the reservoir underlying the two acres for storage purposes. This was the right expropriated in the Sun Fresh ease and it is the value of that storage right which is primarily at issue in the Sun Fresh case. Again the only expert evidence before the jury as to the value of the storage right was presented by Southern Natural. Again defendants presented no expert opinion evidence. The uncontradicted testimony established that the value of the storage right was $295 per acre, a $10 per acre increase because of inflation from the value testified to in Poland by the same expert. Yet the jury awarded $3,500 per acre, or a total of $7,000.

The trial judge who had determined values in the Poland cases ordered a remit-titur to which defendants would not agree. This placed plaintiff in the peculiar position of having to oppose a new trial because of the practical and economic necessity of expediting completion of the storage facilities in and atop the reservoir underlying 13,000 acres when, relatively speaking, the dollar amount and the acreage in Sun Fresh/Sutton was small. Fortunately, the legislature has provided for such a situation and has allowed a devolutive appeal, even after an expropriator pays or deposits the amount of the judgment as the law requires in order for the expropriator to take possession of the property right expropriated. A suspen-sive appeal is not allowed in these expropriation cases to either litigant. See LRS 19:12, CC Art. 2634, Columbia Gulf Transmission Co. v. C. J. Grayson, Inc., 232 So.2d 150 (La.App.2d Cir. 1970).

Defendants perfected their appeals and plaintiff answered each appeal without having to perfect its appeal, but seeking by the answer to reduce the amounts awarded defendants. Defendants’ contentions on appeal have been answered in Poland. The trial court here correctly refused to accept defendants’ appraiser as an expert witness for the purpose of estimating the value of the storage right. See Poland, supra.

Plaintiff contends on appeal that the judgments based on the jury verdicts are manifestly erroneous and unsupported by any evidence and that attorney' fees and costs should not have been assessed against plaintiff under the circumstances. We agree with plaintiff’s contentions except as to the assessment of costs. Again see our discussion of LRS 19:12 and Louisiana Gas Purchasing Corp. v. Sincox, 368 So.2d 816 (La.App.2d Cir. 1979), in Poland, supra.

The only expert opinion evidence before this jury was presented by expert appraisers offered by Southern Natural. These were the same experts who testified in Poland. Similar letters were mailed to and received by defendants here as were discussed and quoted in part in Poland. Plaintiff showed that it had offered to the respective defendants more than the fair market value of the respective property right owned by each defendant in an effort to avoid litigation and not as an admission that the offer constituted the fair market value of the right. Compare Sincox, cited in Poland, supra.

In Department of Highways v. Wall, 32 So.2d 718, (La.App.2d Cir. 1947), the State exercised its power of expropriation for a highway right of way across one acre in a rural area of Ouachita Parish. The only expert opinion evidence was presented by the State. The defendant did introduce deeds of improved land in the vicinity of the acre which apparently recited a consideration much higher than the value testified to by the State’s expert appraisers. The court said the deeds were of little or no value. A jury awarded more than three times the average of the expert appraisers’ estimate of value. This court observed:

“There certainly is no testimony whatever in the record to warrant the valuation fixed by the jury. All things considered, we are of the opinion that the valuation fixed by the two experienced realtors is fair and should be accepted as determinative of the question.” 32 So.2d at p. 719.

The court’s comments on the law and procedures regarding expropriation are appropriate in the circumstances of this record.

“The reason for referring to a jury . . . the question of the value of real estate taken for public purposes is well known to all, and in a case where the proof submitted on the question of value is conflicting, the jury’s fixation of value should not be disturbed unless it is manifestly erroneous. But, in no event is the jury warranted in ignoring the testimony introduced in the case and substituting therefor their own private ideas or opinions on the issue of value. * * *
“Courts have the inherent power to review jury’s award of damages for property taken for public purposes, and to correct obvious errors...” ibid.

These principles have not changed. The recently adopted Constitution expressly continues our responsibility of reviewing facts as well as law. LSA-Const. Art. 5, § 10. Legislative enactments in the expropriation scheme since 1947 have limited somewhat our jurisdictional authority, but where we have jurisdiction, the constitutional scope of review continues as before. Compare LSA-Const. Art. 1, § 4, and LRS 30:22. More recent cases have stated the principle. See State Dept. of Highways v. Entre Nous, Inc., 283 So.2d 291 (La.App.4th Cir. 1973).

To relate the circumstances of this case to the quoted principles, we observe that the deed of the Enterprise sale has no weight in determining the value of the Sun Fresh-Sutton property • rights and that defendants offered no estimate of the value of those rights. We observe that even the owner of property may testify in an expropriation action as to his estimate of the value of his own land if he has owned it for some time and knows of sales of land in his neighborhood. See State v. Barbe, 209 La. 185, 24 So.2d 372, 374 (1946). Deeds of property other than the property in question are not “comparable” simply because they involve adjacent or abutting property, or property put to a similar use. The comparable sales method of ascertaining market value is merely a technique used by the expert appraiser which is much approved by the courts in determining value. The appraiser gathers record evidence of sales of other property, verifies them, makes comparisons, selects those that are the most comparable to the property whose value is in question, and from this technique, offers his opinion or estimate as to the market value of the property in question. See Da-kin and Klein (1970), p. 181.

The issue to be determined is not what other similarly situated or comparable property sold for, but is what is the estimated market value of the particular property or property right in question.

Here there was no estimate of market value of the property rights in question other than the estimate of the appraisers testifying for Southern Natural. Where there are conflicting estimates on the question of value, this court upholds the trier of fact (judge or jury) unless the determination of value is demonstrated to be obviously erroneous (to use the Wall terminology) or manifestly erroneous. See Poland, supra, Wall, supra.

Accordingly, the judgment in each case will be amended to reduce the amounts awarded, to delete the award of attorney fees, and to cast plaintiff with costs.

The awards to the Sutton defendants are reduced to these amounts:

Mrs. Sutton, separate property right: $10.55
Sutton community property right: $62.68

The award to the Sun Fresh defendants is reduced to $590.00.

Plaintiff is cast with costs here and below. As above amended, judgment in each appeal is affirmed.

      . The separate interest of Mrs. Sutton was a .000069 unit royalty interest. The community interest of the Suttons was a .000410 unit royalty interest.

      . Present values were assigned for 179,400 MCF of commercially recoverable natural gas and 1,955 barrels of condensate. Mrs. Sutton’s separate .000079 URI and the Sutton community .000410 URI were then multiplied by these values and quantity to produce these dollar amounts:


author: JASPER E. JONES, Judge.

text:
    FIRST NATIONAL BANK, Plaintiff-Appellee, v. Gary HIGGS and Doris Higgs, Defendants-Appellants.
    No. 14680.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Banc. Rehearing Denied Dec. 10,1981.

      Albert W. Block, Jr., Monroe, for plaintiff-appellee.
    Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Simmons & Derr by Kermit M. Simmons, Winnfield, for defendants-appellants.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is a suit on a note. Plaintiff, First National Bank, also sought recognition of the mortgage securing that note. After a trial on the merits the district judge rendered judgment in First National’s favor for the amount due on the note, interest, attorney’s fees and recognizing the mortgage. The defendants, Gary E. Higgs and Doris Higgs, took this appeal. First National did not appeal nor answer the appeal.

The roots of this controversy begin with the defendants’ 1971 purchase of a “Buddy” mobile home from Brewton Mobile Home Sales in Winnfield, Louisiana. The defendants gave for the credit portion of the purchase price a note secured by a mortgage on the mobile home. Brewton then sold the note to First National.

The note was to be paid in 120 monthly installments. The defendants had a history of not making payments on or before due date. The payments were frequently made late. When the defendants missed the payments due in December, 1979, January and February, 1980, First National exercised the acceleration clause of the note.

The defendants attempted to make a payment in March, 1980 but it was returned with a letter demanding full payment. A second payment was sent in March, 1980, and was accepted. A payment sent in April, after this suit was filed but before service, was accepted.

At trial the defendants attempted to show that they were not in arrears. The trial judge concluded that even if credit for the attempted payment was considered, there was still one payment overdue and therefore rendered judgment for plaintiff.

On appeal the defendants make several assignments of error. First, that it was error to conclude that there was one payment in arrears at the time the suit was filed after credit was allowed for the attempted payment. Second, that it was error to refuse to accept the defense of fore-bearance. Third, that it was error to supplement the description of the mobile home which appeared in the mortgage. Fourth, that it was error to refuse to allow the filing of amending pleadings after the trial.

We begin by considering the assignment of error of the finding that at least one payment was in arrears at the time suit was filed. This is a finding of fact and, therefore, we may not disturb it in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We conclude that this finding was strongly supported by the evidence and was not erroneous.

The record shows that this suit was filed on March 28, 1980. At that time the payments which had fallen due on February 20 and March 20 were unpaid. Only one payment had been returned. Thus, even if the returned payment was considered credited to the February payment, on March 28 the defendants were one payment, the one due on March 20, in arrears. This assignment is without merit.

The second assignment goes to the failure of the trial judge to accept the defense of forebearance. This defense was pleaded in defendants’ “Second Amending Answer and Reconventional Demand and Counterclaim” filed May 20, 1980, some ten days after the case was tried.

The list of affirmative defenses in LSA-C.C.P. art. 1005 is illustrative, not exclusive. An affirmative defense is one which will have the effect of defeating the suit on its merits. Langhans v. Hale, 345 So.2d 1226 (La.App. 1st Cir. 1977); Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir. 1979). Affirmative defenses must be specially pleaded. LSA-C.C.P. art. 1005. The party relying on an affirmative defense bears the burden of proving it. Ray v. Martin, 117 So.2d 839 (La.App.Orl.1960).

This court has held a promise not to sue is an affirmative defense that must be specially pleaded. Glazer Wholesale Drug Company v. Tabor, 128 So.2d 226 (La.App.2d Cir. 1961). Forebearance is nothing more than a tacit promise not to sue or estoppel to sue and must be regarded as an affirmative defense. Glazer, supra; C.C.P. art. 1005. Therefore, the defendants had to specially plead forebearance to raise it.

The defense of forebearance was not urged until after trial. Whether or not to allow the amendment of pleadings after the trial is left to the discretion of the trial judge. LSA-C.C.P. art. 1151. Faslund v. Kendrick, 169 So.2d 276 (La.App.1st Cir. 1964); M. Levy Co. of Shreveport v. Continental Cas. Co., 106 So.2d 766 (La.App.2d Cir. 1958). Here there was no abuse of discretion by the trial judge in refusing to allow the amendment. Defendants had known of the facts on which this defense was based since the inception of the litigation but did not choose to raise it until after trial, when it should have been addressed in their answer before trial. This was nothing more than an attempt by unsuccessful defendants to get a second chance at litigating.

We also note that even if the slight evidence introduced at trial on the question of forebearance were considered to have amended the pleadings it would be insufficient to bear the burden imposed on defendants by Ray, supra. The entire record shows that, rather than silently tolerating defendants’ tardy payments, the plaintiff repeatedly sent defendants various types of notices, demands and letters about their lateness. This assignment of error is without merit.

The third assignment of error relates to the differences between the description of the property in the mortgage and judgment. The judgment includes the brand name of the house trailer in question— “Buddy Mobile Home.” Defendants also complain that the judgment lists the serial number as “BL-5115F” rather than “BL-5115E” as in the mortgage.

We find no difference in the serial numbers between the mortgage and judgment. The “E” in the judgment simply did not print fully when typed.

Defendants complain that the addition of “Buddy Mobile Home” to the description was necessary to sufficiently describe the mobile home, that it was error to add that language, and that, therefore, the mortgage is invalid because it does not contain a sufficient description. We find that the description in the mortgage is sufficient and that if it was error to add the words “Buddy Mobile Home” it was a harmless error.

What is a sufficient description is determined in light of the circumstances of each case, including the nature, kind, character and quality of the property involved and how it will be used. Young v. Squeeze Tools, Inc., 350 So.2d 967 (La.App. 2d Cir. 1977); All State Credit Plan Houma, Inc. v. Fournier, 175 So.2d 707 (La.App. 1st Cir. 1965). Property subject to a chattel mortgage need not be so described as to enable identification from the description alone, but only such as to enable third persons, aided by inquiry which the instrument suggests, to identify the property. Smith v. Bratsos, 202 La. 493, 12 So.2d 245 (1942); Matthews v. Couie, 35 So.2d 794 (La.App. 2d Cir. 1948); Harper v. Borden Company, 129 So.2d 330 (La. App.3d Cir. 1961).

The description of the vehicle in the mortgage gives its model year, serial number and lists that it has three bedrooms and one and one-half baths. That an object is a vehicle, has no motor, but does have bed and bath rooms, is sufficient to indicate that it is a mobile home. The natural inquiries which would follow from this information and the fact that the serial number is listed would easily allow one to identify the property subject to the mortgage.

Further, the defendants are not third persons. They were parties to the mortgage. Appellant Gary Higgs testified the mobile home owned by him was the one described in the mortgage and the one he intended mortgaged.

Our determination that the description is adequate is supported by Harper, supra. In Harper the mortgage of a trailer was held to be valid even though the description gave the wrong model year and did not include the serial or license number of the trailer. This assignment of error is without merit.

The defendants’ final assignment of error also relates to his attempt to file a “Second Amending Answer and Reeonventional Demand and Counterclaim” after the trial. In that pleading defendants assert certain truth in lending violations as a reconven-tional demand and alternatively as a defense.

Defendants contend that the amending pleading should have been allowed to conform the pleadings to the evidence under LSA-C.C.P. art. 1154. We do not consider this procedural question because we find the truth in lending claim to be groundless on the merits.

Defendants complain of three violations of Federal Reserve Board Regulation Z, 12 CFR 226.1 et seq. The alleged violations are (1) that the creditor was not identified, (2) that it was not disclosed whether unearned finance charges would be rebated in event of acceleration, and (3) that proceeds were not disclosed.

The name of the creditor, Brewton Mobile Home Sales, and its business address appears clearly on the mortgage. This is all that is required by Regulation Z. Hagler v. Ford Motor Credit Co., 381 So.2d 80 (Ala.Civ.App.1980).

On the face of the mortgage in bold print appears the words “REBATE FOR PREPAYMENT IN FULL BASED ON RULE OF 78’S.” This is sufficient disclosure under Regulation Z. Gantt v. Com. Loan Co., 573 F.2d 520 (8th Cir. Mo. 1978).

Finally, the face of the mortgage completely shows the total borrowed and how it was distributed to various expenses and items. We think this more than adequately discloses proceeds and no authority to the contrary was presented to this court by appellant.

The final assignment of error is without merit.

The judgment appealed from is affirmed and all costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . Forebearance is a circumstance which can give rise to estoppel. Forebearance exists when a creditor acquiesces in or tolerates substandard performance of an obligation by the debtor without exercising his rights to enforce the obligation, thereby implying that such conduct is sufficient.
      When forebearance reaches the level of equitable estoppel the creditor will be barred from suddenly demanding strict performance in order to avoid injustice to the debtor. Calhoun v. Huffman, 217 So.2d 733 (La.App.3d Cir.1969); Sternberg v. Mason, 339 So.2d 373 (La.App.1st Cir.1976). However, the creditor’s mere acquiescence or forebearance by not using all of his rights, when accompanied by protest or complaints to the debtor, does not rise to the level of estoppel which will later bar the creditor from using those rights to enforce the obligation. Burris v. Gay, 324 So.2d 11 (La.App.2d Cir.1975), writs denied 326 So.2d 377.

      . LSA-C.C.P. art. 1005 — The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.

      . LSA-C.C.P. art. 1151 — A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
      A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.

      . LSA-C.C.P. art. 1154 — When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon such motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.


text:
    Nat LITTLE, Plaintiff-Appellee, v. KALO LABORATORIES, INC., et al., Defendants-Appellees, Ivan O. Morris, Jr., Third Party Plaintiff and Appellant, Southern Farm Bureau Casualty Insurance Company, Third Party Defendant and Appellee.
    No. 14686.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    En Bane. Rehearing Denied Dec. 10,1981.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for Ivan O. Morris, third party plaintiff-appellant.
    Cotton, Bolton, Roberts & Hoychick by John Hoychick, Jr., Rayville, for Southern Farm Bureau Ins., third party defendant-appellee.

      Deutsch, Kerrigan & Stiles by Frederick R. Bott, New Orleans, for third party defendant Frank Day.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

This is an appeal by third party plaintiff, Ivan 0. Morris, Jr., of a judgment granting his insurer, third party defendant, Southern Farm Bureau Casualty Insurance Company’s motion for summary judgment dismissing it from this law suit on the grounds that an exclusion in its comprehensive liability policy precluded any coverage for the crop damages sought against its insured.

Mr. Morris is a successful farmer in More-house Parish where he has large and varied operations. One of these operations is the growing of rice. This case results from Morris’ decision to apply a herbicide called “Defy” to his rice crop.

The primary active ingredient in “Defy” is a substance called 2-4 — D which makes “Defy” extremely damaging to broad leaf plants but harmless to rice. “Defy” can be applied either by an aircraft or by a tractor powered ground spray rig.

Morris elected to have “Defy” aerially applied by Morris’ Flying Service, Inc. “Defy” was mixed with water and an anti-drift agent and then sprayed on the rice by one of the Flying Service’s planes. An anti-drift agent is a substance which causes the herbicide to fall more rapidly to the ground, thereby reducing the danger it will drift onto a non-target field. In a further effort to avoid inadvertent spread of the spray a buffer zone was left along the down wind edge of the rice field.

Despite these efforts the “Defy” somehow spread. It reached about 2,000 acres of cotton, which is highly susceptible to 2-4-D, and caused varying degrees of damage. Eventually, twenty-one different suits were filed in response to the damage. Those suits have been consolidated in this proceeding.

At this point a review of the pleadings is appropriate. The original petition names six defendants: Kalo Laboratories, Inc., the marketer of “Defy”; Transbas, Inc., the formulator of “Defy”; Nalco Chemical Company, the maker of the anti-drift agent; Morris Flying Service Inc.; First State Insurance Company, Kalo’s liability insurer; and Underwriters at Lloyds of London, the Flying Service’s insurer.

Among the asserted bases for liability were that the “Defy” volatilized after application to the rice field or granulated after application to the rice field, and was then “driven into petitioners’ cotton crops by subsequent winds.”

Kalo answered the petition and made third party demands against Transbas, the Home Insurance Company, the insurer of Transbas, Ivan Morris and Duke Shackel-ford, another farmer. Kalo asserted that Transbas, the formulator, was liable for any defects in “Defy.” Kalo alleged Morris and Shackelford were liable as landowners and, alternatively, for not determining if the spraying could be conducted safely.

Morris answered the third party demand of Kalo and made his own third party demand. Included among the defendants in Morris’ third party demand was his insurer Southern Farm Bureau Casualty Insurance Company. Morris alleged that he should be indemnified by his insurer for all amounts for which he should be held liable. Morris also adopted the allegations of the original petition.

Morris alleged that Southern Farm had issued to him a liability policy providing him coverage in this case. Morris demanded attorney’s fees from Southern Farm for its failure to defend him.

The relevant portions of the Southern Farm policy read as follows:

“Coverage B — Property Damage Liability. To pay on behalf of the insured all sums except punitive damages, unless required to be included by law, which the insured shall become legally obligated to pay as damages because of (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at
any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period; ...”

The following provisions appear in the section of the policy headed “Exclusions”:

“This policy does not apply:
(b) under Coverages A, B and C, to the ownership, maintenance, or use, including the loading or unloading of
(4) aircraft
(m) under Coverages A, B and C, to bodily injury, property damage or sickness, disease or death arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply to sudden and accidental discharge, dispersal, release or escape of chemicals nor to damage to farm crops and livestock arising out of the application of farm chemicals subject to the Chemical Deductible as provided under Condition 1, Limits of Liability, Coverage B.”

The chemical deductible limits the insurer’s liability to 95% of the damage in excess of $250.

Southern Farm made a motion for summary judgment on Morris’ third party demand based on exclusion (b)(4) and the fact that the “Defy” had been applied by air. It attached to the motion for summary judgment only the policy which it had issued to Ivan Morris, and relied upon the pleadings and the policy to support the motion for summary judgment.

The district court rendered judgment in favor of Southern Farm dismissing the third party demands made against it by Ivan Morris.

Morris assigns as error that the trial judge granted Southern Farm’s motion for summary judgment. We agree and reverse and remand.

Summary judgment should be granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); LSA-C.C.P. art. 966. The burden is on the mover to show that no genuine issue of material fact exists and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Further, any doubt is resolved against granting summary judgment. Chaisson, supra.

The rules of construction of insurance policies must be considered here. The interpretation of the policy most favorable to the insured must be adopted. Creole Explorations, Inc. v. Underwriters at Lloyds, 245 La. 927, 161 So.2d 768 (1964). It is the duty of the insurer to clearly express exclusions or limitations in a liability policy. Corkern v. Main Insurance Company, Chicago, Ill, 268 So.2d 138 (La.App. 1st Cir. 1972); Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958). Exclusionary clauses are strictly construed. Commercial Union Ins. Co. of N. Y. v. Hardcastie, 188 So.2d 698 (La.App.2d Cir. 1966); Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La. App. 1st Cir. 1979). The burden is on the insurer to prove that an exclusion applies. Borden, Inc., supra.

The pleadings in this case assert liability against Morris on at least two different theories: strict liability under LSA-C.C. art. 667 and negligence. At oral argument Southern Farm conceded there would be coverage in this case had the “Defy” been applied with a ground rig. In the absence of the exclusion there would clearly be coverage even though an airplane was used because the language of exclusion (m) which excludes chemical damages specifically excepted from the exclusion “damage to farm crops . . . arising out of the application of farm chemicals...” This language shows that Coverage B was intended to cover damages like those in this case. Thus, the burden is squarely on Southern Farm to show that there is no genuine issue of material fact, that coverage was excluded by (b), (the use of aircraft exclusion), and that reasonable minds could not conclude otherwise. Borden, Inc., Chaisson, supra.

During oral argument Southern Farm contended that exclusion (b) did not require a causal connection between the use of the airplane and the damage for the exclusion to apply. Southern Farm and the trial judge both took the position that the damage need only follow the use of an airplane, it being their position that even though all the “Defy” was placed upon Morris’ farm by the airplane with no drift to the plaintiff’s cotton during the spraying operation, that the exclusion still applied to the damages that occurred when the “Defy” later arose from its resting place in the rice field and went into plaintiff’s cotton field, because the “Defy” was initially placed in the rice field by the airplane. We find that conclusion to be contrary to the policy’s language and the law.

In the coverage section of the policy the insurer agrees “to pay ... all sums . . . which the insured shall become legally obligated to pay as damages because of (1) physical injury to or destruction of tangible property ...” The exclusions state that coverage does not apply to the use of aircraft. In order for the exclusion to apply the use of aircraft must in some way be responsible for the insured’s becoming “legally obligated to pay damages.” There must be a causal connection between the use of the airplane and the damage for the exclusion to apply. The exclusion does not apply merely because the damage follows the use of the airplane. The use of the airplane must have been a substantial factor in causing the damage. LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978). This concept is reflected in Southern Farm’s brief where it states: “[t]he policy is clear and plain, that there is no coverage afforded for property damage caused through the use of aircraft.” (emphasis added).

The weakness of the position that the damage is excluded if it follows the use of an aircraft is shown by examining its effect in other circumstances. If the “Defy” had been shipped by air to the Morris farm, there placed in storage and then escaped because of some corrosive effect on its container and caused this damage, under the interpretation of Southern Farm and the district judge, there would be no coverage because it would have followed the use of aircraft. If the “Defy” was brought to the farm by air and then placed upon the rice by ground rig, there would be no coverage for subsequent “Defy” damage if the exclusion is construed in the manner urged by Southern Farm. If this interpretation of the exclusion were taken to its logical extreme the exclusion would swallow the coverage. To adopt the construction suggested by Southern Farm would violate the principle expressed in Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968), that an insurance contract should not be interpreted so as to lead to absurd conclusions.

In Fertitta, supra, the court observed that the insurance contract should be examined “as a whole ... to determine the contemplation of the parties negotiating the insurance contract.”

Coverage B and exclusion (m) show that it was the intent of the parties to cover one class of risks, namely, those associated with farm chemicals. Exclusion (b) shows that it was intended that risks of aircraft be excluded. Included among the risks covered by the exclusion would be damages sustained by the aerial application of the chemical directly to the wrong farm, either by error or by spraying it over the target farm when wind conditions were such that the chemical would be blown to the nontar-get farm before it came to rest upon the ground. Where the damage flows from the chemicals unrelated to the use of the aircraft the risk is one clearly intended to be covered as reflected by the language of exclusion (m) and the aircraft use exclusion is inapplicable. We hold there must be a causal relationship rather than a mere connection between the excluded risk and the damage complained of for that damage to be excluded from coverage.

Our holding is supported by the jurisprudence. In Kendrick, supra, there was a claim asserted against the installer of a sewer system for a fire loss which was caused by an explosion which occurred after the work had been completed. The installer’s insurer denied liability on the basis of an exclusion of coverage for completed work. The court found that though the damage occurred after completion it was caused by negligence in construction and was therefore covered rather than excluded.

In Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir. 1974), a large amount of gravel fell from a truck onto a highway. A few hours later another motorist struck the gravel, lost control and hit a second vehicle killing its driver. The plaintiff attempted to recover from defendant’s general liability insurer. The insurer argued that there was no coverage based on an exclusion of “. . . damage arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile...” The court refused to apply the exclusion finding that the negligence which caused the death was the failure to remove the gravel or warn of its presence.

LeJeune, supra involved a fatal collision between a hearse and another vehicle. The wreck occurred at the intersection of two highways. The funeral procession was on the highway on which traffic was to stop and yield before proceeding through the intersection. When the deputy sheriff leading the procession reached the intersection it was clear, so he continued on without securing the intersection with his car. As the hearse neared the intersection it was being approached by a car driven at a high rate of speed on the other highway. The driver of the hearse attempted to cross in front of the oncoming car and the collision resulted. There were found to be three causes of the accident: the negligence of the speeding driver, the negligence of the hearse driver and the negligence of the deputy in failing to secure the intersection. The sheriff’s general liability insurer asserted that there was no coverage on the basis of an exclusion of injury arising out of the ownership, operation or use of an auto. The exclusion was found inapplicable because the negligence of the deputy was independent of, though concurring with, the use of an auto.

In Johns v. State Farm Fire & Cas. Co., 349 So.2d 481 (La.App. 3d Cir. 1977), the plaintiff was trying to remove a dead limb from a tree in the insured’s yard. In order to do this a rope was thrown over another limb in the tree and one end attached to plaintiff’s waist. The other end was attached to a car. As plaintiff climbed the tree the car was to be driven away to keep the slack out of the safety rope. When plaintiff reached the proper height he let go of the tree in order to be able to remove the dead limb. When plaintiff released his grip the rope broke and he fell sustaining serious injury. Plaintiff sued the homeowner’s insurer of the premise where the tree was located. The insurer asserted that there was no coverage of injury “. . . arising out of the ownership, maintenance, operation, use, loading or unloading of . . . any motor vehicle ...” The court held that there must be not only a use of a vehicle but a connexity between the use of the vehicle and the accident for the exclusion to apply.

In order for Southern Farm to be entitled to the summary judgment it had the burden to show that there was no genuine issue as to the two material facts in this case. That is, that an airplane was used and the damage was caused by that use.

There is no dispute that the “Defy” was applied by air. However, there is a genuine issue as to the second fact. The pleadings include two ways that the “Defy” could have moved to the cotton which would not have been caused by the use of the airplane, volatilization and granulization. The cause of the movement of the “Defy” cannot be determined from the present record and therefore it cannot be determined if the exclusion should be applied. The cause of the movement of the “Defy” is a material fact about which there remains a genuine issue.

The judgment of the district court is reversed and the appellee’s motion for summary judgment is denied and this cause is remanded to the district court for further proceedings. All costs of this appeal are assessed against appellee.

REVERSED and REMANDED.

      . C.C.P. art. 966 — The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

      . C.C. art. 667 — Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.

      . Paragraph 22 of Kalo’s third party demand against Morris reads as follows: “Kalo further alleges upon information and belief that at the time the aerial applications were made as set forth in plaintiffs original petition, the spraying operations were conducted on parcels of land owned by Ivan Morris, Jr. and Duke Shackel-ford, both of whom are liable under the Civil Code of Louisiana for the spraying operations conducted upon their land or as a further alternative, for failing to determine that the spraying operations could be conducted in safety or alternatively for creating a situation with regard to their particular rice crop growing on said lands which caused or created the type of injury alleged upon in plaintiffs original petition.”

      . Volatilization appears to be a phenomena, caused by a combination of high temperature and humidity, in which the already applied chemical “vaporizes” and comes back up off the crop to which it was applied.
      Granulization appears to be a condition where the chemical enters a crystaline type state and can be easily moved off the crop to which it was applied by winds.


author: PRICE, Judge.

text:
    Michelle Ferguson BAZAR, Plaintiff-Appellant, v. Kenneth Lynn BAZAR, Sr., Defendant-Appellee.
    No. 14688.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    Simmons & Derr by Jacque D. Derr, Winnfield, for plaintiff-appellant.
    Harrington & Harrington by C. Rodney Harrington, Natchitoches, for defendant-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Michelle Ferguson Bazar appeals a trial court judgment awarding the permanent custody of her two children to the father, Kenneth Lynn Bazar, appellee herein. We affirm.

Kenneth Lynn Bazar and Michelle Ferguson were married on June 18, 1976, in Winn Parish. Of this marriage twin children were born, Jennifer Lychel and Kenneth Lynn Jr., approximately three years of age at the trial of this matter.

On July 2, 1980, Michelle Ferguson Bazar filed a petition for separation based upon the grounds of cruelty and habitual intemperance. Kenneth Lynn Bazar answered with a general denial which was later supplemented to include a prayer for the permanent custody of the children and a recon-ventional demand for separation on the grounds of cruelty and abandonment. At trial, Kenneth Lynn Bazar filed in open court a second amended answer and recon-ventional demand seeking an immediate divorce on the grounds of adultery and again praying for permanent custody of the children.

The trial on the merits, held December 16, 1980, resulted in a judgment of divorce on the grounds of adultery in favor of Kenneth Lynn Bazar. After taking the custody question under advisement, the trial court on February 27, 1981, rendered judgment granting Kenneth Lynn Bazar the permanent custody of the two children.

Upon the timely motion of counsel, the trial court on March 13, 1981, granted a new trial to Michelle Ferguson Bazar limited solely to the issues concerning the petition for divorce on the grounds of adultery. Since the court did not hold the child custody provisions of the judgment in abeyance, this appeal was taken.

The sole issue to be decided is whether, in light of all the evidence presented, the trial court clearly abused its discretion in awarding permanent custody of the children to the father, Kenneth Lynn Bazar.

One of the children, Kenneth Lynn Jr., has cerebral palsy and requires daily massage and exercise to keep his legs from stiffening. The child also suffers from chronic respiratory problems and has been treated in the past for bronchitis and pneumonia. Appellee testified that on those occasions he cared for the children after the separation, he noticed his son’s legs were stiff, indicating the child had not been receiving his daily therapy while in the care of appellant.

Appellant testified she left the matrimonial domicile on June 19, 1980, taking the children with her. After spending several months at her mother’s residence, appellant moved to the home of her paramour, where she resided with her children for about three weeks. This living arrangement terminated upon the advice of her attorney, after it was learned that appellee desired custody of the children. Further testimony revealed that during the months appellant lived with her mother, the paramour was a frequent house guest, often spending the night with appellant.

Appellant testified she hoped to marry her paramour in the future. Until that time, her only plans were to stay with her mother who would help in the raising of the children.

Appellant testified to her belief that it was proper for unmarried people to live together if they loved each other. When questioned on cross-examination, she admitted she would convey the same belief to her children. Appellant’s mother testified she approved of her daughter’s adulterous relationship.

Appellee testified to having emotional problems resulting from a prior automobile accident and the subsequent breakup of his marriage. Appellee has’ been treated by several doctors, and on more than one occasion has been hospitalized because of his emotional state.

Appellee indicated he stopped seeing these doctors because he considered himself capable of handling his own problems once again. Several witnesses testified to a recent marked improvement in appellee’s emotional state. Appellant’s paternal aunt and uncle both testified appellee is a dedicated and loving father who is emotionally capable of caring for the children. Appel-lee has been steadily employed for the past seven years and is currently earning about $18,000 a year. He plans to move his mobile home next to his parents’ residence so they may aid him in caring for the children while he is at work. Appellee’s father, a Baptist minister, testified he and his wife have taken care of the children in the past and have assisted in Kenneth Lynn Jr.’s therapy.

In awarding custody of the children to appellee, the trial court found that appellee seemed to be resolving his emotional problems and is a devoted father who is determined to provide his son with all the care and therapy necessary to his well-being. On the other hand, the trial court found appellant’s only plans were to marry her paramour, receive child support, and find work if necessary. The court further found appellant’s testimony indicates she is seeking an escape from the responsibilities of raising two young children.

On appeal appellant contends she is no longer engaging in a course of improper conduct with her paramour and that this reformation of lifestyle renders her the most fit parent to have custody of the children. Appellant further urges the instant case is factually indistinguishable from, and controlled by, Cleeton v. Cleeton, 383 So.2d 1231 (La.1979), where custody of the children was granted to the mother.

In Cleeton the mother of three daughters became involved with a man after a separation in fact from her husband. This man, David Breedlove, was a frequent guest at the Cleeton home and often spent the night or whole weekend. Mrs. Cleeton did not cease her open association with Breedlove until suit demanding a change of child custody was filed by her husband. In awarding custody of the children to Mrs. Cleeton, the trial court noted she had discontinued her open association with Breedlove and decided her past conduct did not outweigh the other factors in her favor.

The court of appeal reversed the trial court, finding Mrs. Cleeton morally unfit based upon her past conduct. On rehearing, the Louisiana Supreme Court reversed the court of appeal and reinstated the trial court’s award of custody to Mrs. Cleeton.

While the instant case bears certain factual similarities to the Cleeton case, we do not believe these similarities warrant the same result as reached in Cleeton. Cleeton v. Cleeton, supra, certainly stands for the proposition that the purpose of a custody determination is not to punish a parent for past misconduct when there is no proof of a detrimental effect on the children. However, that case also stands for a principle basic to our system of appellate review: the determination of the trial court in child custody cases is entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion. See also Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (La.1971); Stephenson v. Stephenson, 404 So.2d 963 (La.1981).

In the instant case the trial court was in a position to evaluate the best interests of the children based upon the conduct and character of the parties and of community standards. While it appears appellant has ceased open association with her paramour, we have only her self-serving testimony to show she desires to marry him in the future. In effect, appellant’s only plan is to continue the status quo until her possible remarriage. However appellee, with the aid of his parents, has made definite plans to provide his children with a stable home environment where they will receive all the care necessary for their physical and emotional well-being. Considering this, we cannot say the trial court abused its discretion in awarding custody of the children to ap-pellee.

For the reasons assigned, the judgment appealed is affirmed at appellant’s costs.


text:
    HASKINS TRUCKING, INC., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY CO., et al., Defendants-Appellees.
    No. 14690.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    Law Offices of Bobby L. Culpepper by Jimmy C. Teat, Jonesboro, for plaintiff-appellant.
    Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, for defendants-appel-lees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Defendants have moved to dismiss plaintiff’s appeal for the reason that it was not taken within the period prescribed by law. After deferring a decision on the motion pending oral argument, we now grant the motion and dismiss the appeal.

The judgment appealed in this matter was rendered at the conclusion of trial in open court on December 5, 1980. The case was not taken under advisement and plaintiff made no request for notice of the date when the judgment was signed. Formal judgment, which had been approved as to form by both counsel, was signed on December 15,1980, although it was not actually filed until January 13, 1981.

Plaintiff filed a motion for new trial on or after January 13, 1981, approximately 29 days after the judgment had been signed. A hearing was held and a judgment denying the motion was signed on February 13, 1981.

Plaintiff’s petition for devolutive appeal was filed on either March 5 or March 10, 1981. Under the Louisiana Code of Civil Procedure, a party’s appeal period does not begin to run until expiration of the new trial delay. Therefore, resolution of the motion to dismiss involves interpretation of La.C.C.P. Art. 1974, which provides:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

Plaintiff contends the word signed in Art. 1974 should be interpreted to mean signed and filed. Plaintiff urges that appeals are favored under Louisiana law and a liberal construction of Art. 1974 is necessary to preserve plaintiff’s right of appeal.

Under the plain language of this article, plaintiff’s new trial delay began to run on December 16, 1980, the day after the judgment was signed. If this is a proper construction, plaintiff’s appeal is untimely. However, if plaintiff’s interpretation of Art. 1974 is correct, the new trial delay did not begin to run until the judgment was filed on January 13, 1981, thus making this appeal timely.

Strict construction of procedural law can lead to harsh results, especially in a case such as this where the delay between signing and filing of the judgment was substantial. However, we feel that to equate the word signed with the words signed and filed would contradict the clear meaning of Art. 1974. When a law is free and clear from ambiguity, the letter of it should not be disregarded under the pretext of pursuing its spirit. La.Civil Code Art. 13, La.C.C.P. Art. 5052, Gill Trailer & Equip. Rentals, Inc. v. S. D’Antoni, Inc., 282 So.2d 714 (La.1973). Until the legislature elects to amend La.C.C.P. Art. 1974, we must give its provisions full effect and hold that plaintiff’s new trial delay commenced to run on the day after the judgment was signed.

Plaintiff could have protected itself against the unknown running of the new trial delay by simply requesting notice of the signing of judgment. La.C.C.P. Arts. 1913 and 1974. Since plaintiff did not make such a request, the delay for applying for a new trial began to run on December 16, 1980, the day after the judgment was signed. This new trial delay expired on December 24, 1980. Plaintiff did not move for a new trial until after that date, therefore, its application for new trial was untimely.

Because there was no timely motion for new trial, plaintiff’s 60-day period allowed for devolutive appeal began to run on December 25, 1980. La.C.C.P. Art. 2087(1). This devolutive appeal period expired on February 23, 1981. Plaintiff’s appeal was not filed before March 5, 1981, well beyond the established time limit.

We conclude that plaintiff’s appeal is untimely and this court has no jurisdiction to review the case.

For the reasons assigned, this appeal is dismissed at plaintiff’s costs.