author: KLIEBERT, Judge-

text:
    Mr. and Mrs. L. J. N. duTREIL, Mr. and Mrs. Ralph E. Brandt, et al. v. Mr. and Mrs. John T. CURTIS.
    No. 12270.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      A. W. Wambsgans, Cronvich, Wambsgans & Michalczyk, Metairie, for plaintiffs-appellants.
    Harold S. Bartholomew, Bartholomew & Jones, Metairie, for defendant-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge-

Plaintiffs, Mr. and Mrs. L. J. N. duTreil, Mr. and Mrs. Ralph E. Brandt, Mr. and Mrs. Joseph G. Stassi, Mr. and Mrs. Britt Davis, Mr. and Mrs. Allen Bolotte, Mrs. Gerard F. Meehan, and Mr. and Mrs. Richard J. Bor-ner (hereafter plaintiffs or property owners), owned property in Cherokee Court Subdivision, Jefferson Parish, sued Mr. and Mrs. John T. Curtis, defendants (hereafter Curtis), to enjoin them from violating the restrictive covenants imposed on lots in the subdivision by the developer. The primary covenants plaintiffs contend were being violated are:

C-l. LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars, and other appropriate outbuildings.
C-4. BUILDING LOCATION. No building shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building set back lines shown on the recorded plat. In any event no building shall be located on any lot nearer than 25' to the front lot line or nearer than I2V2' to any side street line. No building shall be located nearer than 5' to an interior lot line, or 25' to the rear lot line. For the purpose of this covenant eaves, steps, open porches and carports shall not be considered as a part of a building on a lot to encroach upon another lot.

The plaintiffs contended the covenants were being violated because the defendants had paved the entire perimeter of the lots and were using the lots for parking buses and cars in connection with the operation of the school.

John T. Curtis is the principal and originator of John Curtis Christian School. The school and its athletic field is adjacent to Lots 1 and 2, Square 1, of Cherokee Court Subdivision. The defendants admitted acquiring Lots 1 and 2 in August, 1978. They deny that their present use of the property is a violation of the covenants. Alternatively, they urge an exception of prescription grounded in Article 781 of the Civil Code and R.S. 9:5622 and the factual contention that the lots had been used as a parking area for more than two years prior to the time suit was instituted.

The trial judge concluded the “paving of a parking area to be used in connection with the defendants’ school and the actual use of same violates the restrictions placed on the land” because “. .. a paved, heavily used, parking area for school and related purposes is not residential use of the property.” Then, based on Article 781 of the Civil Code, he maintained the exceptions of prescription because “. . . the lots in question had been used on a regular basis for public parking purposes, even prior to the paving of the lots for a period in excess of two years ... and ... witnesses for both the plaintiffs and the defendants convinced the court that there was a noticeable parking usage on the lots on a regular basis since 1971 ...”

The plaintiffs appealed urging as error the trial judge’s finding that the lots had been used on a regular basis for public parking purposes for more than two years and his failure to hold the construction of the concrete slab (it had been constructed for less than two years) was a violation of the covenants.

The force of defense counsel’s argument is directed towards the words “Noticeable” contained in Article 781 of the Civil Code which reads as follows:

“No action for injunction or for damages on account of the violation of a building restriction may be brought after two (2) years from the commencement of a noticeable violation. After a lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.”

In essence, he argues that for the violation to be noticeable, it must be continuous, intentional and without complaint or objection. Since the use of the lots for parking automobiles prior to the construction of the concrete slab was intermittent he argues it was not noticeable and hence prescription did not commence to run until the cement slab for use in parking was constructed. We find no merit in this argument.

Defendants’ witnesses were familiar with the area and in general testified that the parking took place on the lots on most school days and on holidays and during the summer school vacation, particularly when there were athletic activities at the John Curtis School or activities at the nearby Saint Matthew School or Church. Most of the plaintiffs’ witnesses admitted to some parking on the lots or on the shoulders, of people getting stuck on the lots and of neighbors complaining to public officials about the parking years before this suit was instituted. This testimony satisfied the district court and satisfies us that the use of the lot for public parking was noticeable to anyone familiar with the area or who took the time to inquire into the question.

This court was faced with a similar situation to that presented here in LeBlanc v. Bowen, 238 So.2d 369 (La.App., 4th Cir. 1970). In the LeBlanc case, the lots were adjacent to a trailer sales company. The company used part of the lots in connection with its business by parking trailers on the lot and by moving trailers from the highway to its place of business over a shell roadway which crossed over the lots. Since the covenant was a prohibition against using the property for a commercial establishment, this court concluded that the use of the lots in the manner above stated was in fact commercial use and hence a violation of the covenant. Accordingly, it reversed the trial judge and dismissed the plaintiffs’ suit on the basis of prescription. Here the covenant is a prohibition against using the property for other than a residential purpose. As properly concluded by the trial judge, the use of the property for public parking in connection with the operation of a school is a non-residential purpose and therefore a violation of the covenants. The violation is noticeable and has been in existence for more than two years, hence, the cause of action to abate the violation, that is, the public parking on the lots, is prescribed. Civil Code Article 781 and R.S. 9:5622. The hard surfacing of the lots by the construction of a cement slab for use in parking is not a building as that term is used in the covenants, hence, the set back lines for buildings does not apply to the cement slab.

Accordingly, the judgment of the trial judge is affirmed. All costs of the appeal to be borne by the plaintiffs.

AFFIRMED.

      . The school is not in the Cherokee Courts Subdivision and, hence, not subject to the covenants in question here.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Melvin HILLS v. Ronald PEGG, Gary M. Stone, and State Farm Insurance Company.
    No. 12315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Frank S. Bruno, Jerry J. Blouin, Bruno, Bruno & Blouin, New Orleans, for plaintiff-appellant.
    James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On May 21, 1979, Melvin Hills (hereafter Hills) filed suit against Ronald Pegg, the owner of a 1978 Toyota; Gary M. Stone, the operator of the 1978 Toyota, and their insurer, State Farm Insurance (hereafter State Farm) for personal injuries alleged to have been incurred in a motor vehicle collision which occurred on July 19, 1978. At the time of the collision, Hills was operating a 45 passenger bus owned by Louisiana Transit Company in a westerly direction on Veterans Boulevard. On reaching a point about thirty feet west of the intersection of Veterans Blvd. and Clearview Blvd., Hills brought his bus to a stop and, while stopped, was struck in the rear by the 1978 Toyota. Service of process was effected only upon State Farm who answered and appeared at the trial. The other defendants were not served.

Only Hill, the police officer who investigated the accident and the treating physician testified at the trial which was held on February 6, 1980. Following the trial, the trial judge dismissed the plaintiff’s suit with prejudice, stating in his reasons for judgment that the testimony of the plaintiff was sufficiently impeached in material matters to justify rejection of all of the plaintiff’s testimony.

The trial judge gave detailed reasons for his conclusions as follows:

“The plaintiff alleged that when the Toyota hit the bus, the bus was jarred forward approximately one (1) to two (2) feet, thereby causing him to be jarred back and forth in his seat. Asymptomatic immediately after the accident, the plaintiff allegedly began to experience pain in his lower back when he awakened the next day. Plaintiff testified he sought treatment from Dr. Henry Evans the day after the said accident. Dr. Evans diagnosed the plaintiff’s condition as a probable lumbar spine strain, recommended physical therapy treatments and prescribed muscle relaxants. On the second visit, the plaintiff complained his condition had gotten worse, at which time the said doctor prescribed a more potent medication and a back brace for greater back support. The plaintiff was seen at Dr. Evans’ office on some fourteen (14) other occasions for physical therapy treatments, said treatments ending near the end of September, 1978.
Dr. Evans testified that he had noted in his records that the original prescription had been refilled only once; and that his normal routine was to see the patient in his office before a refill was authorized, unless the patient was in dire need of quick pain medication. The plaintiff, on the other hand, testified that Dr. Evans authorized a prescription refill some four (4) to five (5) times. Plaintiff was unable to produce any receipts for said prescriptions.
Plaintiff has also testified that the back brace prescribed by Dr. Evans for lumbar support was procured from the said doctor’s office. On the other hand, Dr. Evans testified that he merely prescribed said medical apparatus, but was not in the business of selling said supplies. The doctor testified that he had not authorized anyone in his office to sell such apparatus.”

We also note that although plaintiff contended he went to see Dr. Evans the day following the accident. According to the doctor’s notes and testimony, however, Hills did not visit Dr. Evans until two weeks after the accident. Further, we note from the plaintiff’s testimony that he had his foot on the brake when the Toyota struck the rear of the bus and moved the bus forward a foot or two. It is inconceivable to us that the Toyota would move the bus in the manner testified to by the plaintiff.

From a careful examination of the record, we note that the trial judge’s conclusions are fully supported by the testimony of the witnesses. The factual findings of the trial court are not to be disturbed on appeal unless they are manifestly in error. Canter v. Koehring, 283 So.2d 716 (La.1973). Moreover, the credibility of the witness is best judged by the trier of the facts and is particularly a matter as to which a trier of facts has much discretion. LeBlanc v. Cordaro, La.App., 378 So.2d 1027; Canter v. Koehring, supra.

Accordingly, the judgment of the trial court is affirmed; Appellant to pay all costs.

AFFIRMED.


author: KLEES, Judge.

text:
    Donald R. GOUDEAU and Lawrence J. Suchand v. Wilfred T. HILL, d/b/a General Contractors of New Orleans.
    No. 12493.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Henry W. Kinney, III, New Orleans, for plaintiffs-appellees.
    Paula A. Perrone, The Legal Clinics of Paula Perrone, New Orleans, for defendant-appellant.
    Before BARRY, LOBRANO and KLEES, JJ.
   KLEES, Judge.

Plaintiff and defendant entered into a written agreement whereby the defendant agreed to repair and patch “obvious leaks” in an old French Quarter Building near the French Market. In addition to the patch work one section of a six-sectional roof was to be completely replaced.

After the work was purportedly completed and after the defendant was paid, the old roof which was to be repaired continued to leak and the new section of the roof also leaked.

The defendant returned on a number of occasions to try to rectify the leaking problem but his attempts were unsuccessful. He then told the plaintiffs that he should have used fiberglass instead of tin as he suggested to the plaintiffs before entering into the contract. Although the plaintiffs rejected the use of fiberglass when it was initially suggested they later told the defendant to use the fiberglass or whatever else was needed to prevent the roof from leaking.

The defendant then informed the plaintiffs that he would be back to repair the roof with the fiberglass at his expense. However, the defendant did not return and after three months and repeated unsuccessful attempts to contact him the plaintiffs instituted legal proceedings.

The trial court found that defendant, Wilfred T. Hill, did not perform his part of the contract because the job was not done in a workmanlike manner. It is this judgment which the defendant has appealed. The plaintiffs have answered the appeal, seeking an additional award of attorney’s fees.

The issue in this case is whether or not the defendant contractor, Wilfred T. Hill, performed his part of the contract in a skillful, careful and workmanlike manner.

LSA-C.C. Art. 2769 Contractor’s liability for non-compliance with contract, states:

“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with this contract.”

It is generally held that under the cited Article, every contract for work or services carries an implied obligation on the part of the contractor that he will perform in a good workmanlike manner in default of which he must respond in damages for the losses that may ensue. Tiger Well Service v. Kimball Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977).

In order to recover damages the plaintiff must prove that a defect exists and that the defect was a result of faulty workmanship or materials. Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir. 1975), writ denied, 319 So.2d 440 (La.1975). A leaking roof is a defect. Stream v. Le Jeune, 352 So.2d 714 (La.App. 3rd Cir. 1977).

The evidence and testimony adduced at trial shows us that the plaintiff successfully met the burden of proving that the defects (leaks), were a result of faulty workmanship. Louis Eichenhorn, a roofer and sheet metal man for 30 years, testified that he inspected the roof in question and found the work performed by the defendant Wilfred T. Hill, and the subcontractor, Alton Tillis, of very poor quality. In connection with his testimony numerous photographs of the roof and interior of the building shown to the court clearly revealed the poor quality of the work performed. Joseph E. Blanchard, one of the expert witnesses called by the defendant, a roofer for 25 years, stated that he would have done many things differently than the way they were done by the defendant and the subcontractor, implying that the work was not properly performed.

While there was some testimony to the contrary, particularly by an architect, Glenn Currie called as an expert witness by the defendant, there is ample evidence to support the ruling of the trial court. Accordingly, the judgment is affirmed.

As to plaintiffs answer to this appeal seeking attorney’s fees, we find no authorization either by statute or by the contract between the parties. Such an award must therefore be denied.

AFFIRMED.


author: KLEES, Judge. BARRY, Judge,

text:
    Robert BOUTERIE v. DEPARTMENT OF FIRE.
    No. 12590.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.
    Before BARRY, LOBRANO, and KLEES, JJ.
   KLEES, Judge.

Appellant Captain Robert A. Bouterie was disciplined by his superior officer, District Chief Raymond A. Schwankhart, during the course of an employment related conversation initiated by the superior officer. Appellant stated:

“I am tired of your ridicule and harassment. I can’t take any more. If this is what you want ... If this is what you finally want — let’s go in the back and end it once and for all because if that’s what you want, I am ready.”

The appellant was immediately suspended under Section 12:06 of the department rules and regulations:

RESPECT FOR FELLOW MEMBERS
Members shall treat other members of the Department with respect and response due them as fellow officers. They shall be courteous, civil and respectful of their superior members and associates, and shall not use threatening or insulting language, whether on or off duty. Respect to each other shall be extended on all occasions. In adhering or referring to an officer, his title shall be used and must never be omitted, altered or abbreviated.

Later that same day, a letter was sent to the appellant lifting the suspension as of 7 P.M. the same day pending further investigation.

After an investigation by the Board of Internal Affairs, Captain Bouterie was issued a suspension of fourteen (14) days in addition to the twelve hour suspension already served by the appellant.

This suspension and the initial suspension were appealed to the Civil Service Commission and after a hearing, the Commission found that appellant was guilty of violating Section 12:06 of the department rules and regulations. However, the Commission did not find sufficient cause for a three (3) week suspension and reduced it to a period of one (1) week.

Both parties have appealed those portions of the judgment of the Civil Service Commission which were adverse to them. Robert Bouterie contends that the Commission erred in finding sufficient cause for the disciplinary action from the evidence presented to it and the Department of Fire avers that the Commission erred in reducing the penalty imposed by the appointing authority.

As indicated by the Commission, the versions of what happened are somewhat similar as between the accusing person and appellant. They stated, and rightly so, that under normal circumstances, and without any corroborative evidence, they could not find that the City had carried its burden of proof. Manale v. Department of Police, 376 So.2d 607 (La.App. 4th Cir. 1979). However, the Commission distinguished this case from Manale in that here the appellant, Robert Bouterie, confirms the confrontation with his superior and the outburst for which he was disciplined.

As stated by the Commission in its findings: “It would be inane to interpret this as anything else than an offer to resolve a dispute concerning employment by unacceptable physical means, and since it comes from appellant’s own mouth, we find supported the charge that appellant violated the provisions of Section 12:06 of the rules and regulations of the Department of Fire which is the gravamen of the charge against him.”

The appellant also contends that his remarks are protected speech under the provisions of the 1st Amendment of the United States Constitution. In addition, he asserts that Section 12:06 is merely an imperfect obligation as contemplated in C.C. Art. 1757(1) and is therefore merely moral and unenforceable. In support of his claims he cites Callaghan v. Department of Fire, 385 So.2d 25 (La.App. 4th Cir. 1980).

In Callaghan, a fireman was discharged for failing to obey an order by the fire superintendent to apologize for remarks made by him in a private meeting. This Court, in reversing the decision of the Commission to uphold the dismissal of the fireman, held that the remarks made by the fireman in the course of his private conversation with his employers, i.e., that his superior filed a false report, were protected speech under the 1st Amendment of the U.S. Constitution and Article 1 § 7 of the La.Const. of 1974. The Court went on to state that since the remarks were protected speech there was no basis for the order to apologize. The Court described the order, having no basis in the law, as one to enforce “good manners” and that the order, as such,, was an imperfect obligation.

We have carefully considered the Callaghan decision but in light of the facts here find the case of Dumez v. Houma Municipal Fire & Police, etc. 365 So.2d 603, (La.App. 1st Cir. 1978) applicable. In Dumez a police lieutenant was discharged for discourtesy when, in the presence of his superior officers, he uttered the words “F_Y__” for having been denied entrance to the office of the Police Chief. The provision which was the basis for his discharge was R.S. 33:2500(A)(5) which is similar to Rule 12:06:

“(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and any dishonest, disgraceful or immoral conduct.”

The Court in Dumez discussed the issue of protected speech. They recognized the rule of Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) that freedom of speech is not absolute but subject to reasonable regulation as to time, place and manner of exercise when such regulation is reasonably related to some valid public interest. Dumez cited Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (9th Cir. 1976) which held that the state has a substantial public interest to protect in creating and maintaining efficiency, discipline, esprit de corps, and uniformity in those state organizations, which carry out important functions of significant public concern.

The Court in Dumez then held that the operation of a police department is clothed with sufficient public interest to justify reasonable restraint upon the speech of employees directed toward their superiors and fellow officers in the line of duty. Accordingly, the Court found the statute, which was the basis of the disciplinary action, to be constitutional.

It is true that the Fire Department is not part of the military. However, it, just as the police force, is modeled upon a military hierarchial structure. As such, discipline is an important factor. Without discipline the public interest can be severely affected in a time of crisis. Based upon Dumez and the cases cited therein it is our opinion that Section 12:06 of the City Civil Service Rules and Regulations has a legal basis and is therefore not an imperfect obligation. Based upon the words said by Captain Bouterie, as well as his actions of dropping the clothes in his hand and raising his fists to his superior the Commission properly enforced rules of discipline which would, directly, indirectly, or in the aggregate affect the public. Certainly a lack of discipline could have such an effect. We conclude that the Commission properly found that the Department of Fire had sufficient cause to discipline appellant.

The City argues that the Commission erred in reducing the penalty imposed by the appointing authority. Branighan v. Department of Police, 362 So.2d 1221 (La.App. 4th Cir. 1978); at 1222-23 discussed the basis for change in a disciplinary action:

“The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause. This protection arises from La.Const. Art. 10 § 8(A):
No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.
Cause justifying a one-day suspension might not justify a dismissal, and therefore — and in that sense — the Civil Service Commission's authority “to hear and decide” disciplinary cases, Const, art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty. See Brickman v. New Orleans Aviation Board, 1958, 236 La. 143, 107 So.2d 422; Bernard v. Louisiana H & H.R.A., La.App. 1 Cir. 1976, 336 So.2d 55. But for example, cause justifying a 25-day suspension very probably would also justify a 30 day suspension and the Commission’s authority “to hear and decide” an appeal from a 30 day suspension would therefore very probable not include authority to reduce the 30 day suspension to 25 days. The Commission does not have the authority to reduce a penalty except upon a determination that there is insufficient cause for the greater penalty.

The Commission was of the opinion that the appointing authority failed to show that there was sufficient cause for a three week suspension, and felt that the appointing authority did produce sufficient cause to grant a one week suspension because of the disrespectful words uttered by the appellant. However, it felt that the conflicting testimony of the two parties in relation to the things said at the time of the incident did not support a three week suspension. As the Commission’s authority includes the authority to modify as well as reverse or affirm a penalty, we find no abuse of its discretion in reducing this suspension.

Accordingly, for the views herein expressed the finding of the Civil Service Commission is affirmed.

AFFIRMED.

BARRY, J., dissents with written reasons.

BARRY, Judge,

dissents with written reasons.

This “argument” was precipitated by the District Chief and the provocation occurred because he followed the Captain to his locker.

This is not an employment dispute. The Captain did not offer or demand to fight. “If that’s what you want, I’m ready” is not an offer.

The Captain did nothing that could be construed as “threatening” and said nothing that was “insulting”. I therefore dissent.


text:
    Mr. and Mrs. Fernand G. PRAT, Jr. v. Mrs. Gladys L. HEYMANN.
    No. 12166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Edward F. Wegmann, Geoffrey H. Lon-genecker, Wegmann & Longenecker, New Orleans, for plaintiffs-appellees.
    Matthew H. Greenbaum, E. Sue Bernie, Fawer & Greenbaum, New Orleans, for defendant-appellant.
    Before SCHOTT, GARRISON, and KLEES, JJ.
   KLEES, Judge.

On January 17, 1977, the plaintiffs offered to purchase from Mrs. Gladys L. Hey-mann, the defendant, the house and property at 4039 Vendóme Place, New Orleans, Louisiana for the price of $195,000 cash, and on January 20,1977, the offer was accepted by defendant.

Prior to the time the plaintiffs occupied the home, which was built by defendant in 1939, they inspected it on several occasions in the presence of one or more people. When inspected by the plaintiffs, the house appeared to them to be in excellent condition and free and clear of any defects with the exception of a section of faded wallpaper in the dining room and a minor crack in the front wall which the defendant agreed to repair at her cost.

On May 20, 1977, approximately six weeks after the plaintiffs moved into the home, they began to encounter difficulty in opening and closing the front door, and observed a rather substantial crack on the inside of the entrance porch. Later they observed that the grill work at the entrance porch had pulled away from the wall at the back of the porch and noticed a very large crack in the front wall just below the window. In the weeks thereafter, other defects began to manifest themselves and the plaintiffs then tendered the property to the defendant and made demand upon her for the return of the purchase price and all expenses incurred by them to preserve the property.

Upon the refusal of the defendant to accept plaintiffs tender of the property and accede to their demand for a return of the purchase price, plaintiffs engaged the services of a contractor at a cost of $80,183.41 to repair and renovate the buildings and other improvements situated on the property, so as to place them in the condition they appeared to be in at the time they agreed to purchase the home.

Plaintiffs sought a rescission of the sale and a return of the purchase price, together with expenses, damages and attorney’s fees. Alternatively plaintiffs asked for a reduction in the purchase price of the property, to the extent of the $80,183.41 necessary to repair and renovate the buildings and improvements, together with expenses, damages and attorney’s fees.

The only defense asserted on behalf of the defendant is that the defects complained of were apparent, or should have been apparent to the plaintiffs, upon simple inspection and ascertainable by any prospective purchaser making the simple inspection required of them by law.

The trial court ruled in favor of the plaintiffs but rather than rescinding the sale reduced the purchase price by $65,018.99. His reasons for judgments are as follows:

“REASONS FOR JUDGMENT”
“The evidence convinces me that at the time of the Prats’ visits prior to the sale, the house appeared to be free of defects discoverable by simple inspection. It was always kept in mint condition by Mrs. Heymann, and cracks that had appeared had recently been filled and painted.
‘The house nevertheless was fatigued at the time of the sale, as subsequent events so dramatically demonstrate.
‘Whether the slab was then cracked, or cracked later, or whether, if cracked, the crack was of significance, is really of no moment. As Mr. Warshaw explained, the house had for years been on a roller coaster of shrinking and expanding soil until it finally reached the point where it could tolerate stress no longer and failed. Though the sudden failure occurred after the sale, the continuing stress and gradual fatigue had been of such long duration that at the time of the sale, the inherent inability of the house to tolerate further stress rendered it defective.
‘I do not believe Mrs. Heyman knew of this defect. I doubt if anyone could have known the house had reached, literally, the breaking point.
‘She knew the house had recurrent cracks, and had been told by Mr. Abry in 1974 that the house should be shored. But these are conditions caused by the soil common to the area, and would not, of themselves, render the house defective. Stack v. Irwin, 144 So.2d 648.
‘But such knowledge would lead no one to the conclusion that the house was so fatigued, that it would fail at the next soil subsidance.
‘The sale price should be reduced to cover the cost of correction, less the cost of pouring piles, which though necessary, were not part of the thing bargained for, see concurring opinion Phillips v. Schmidt, 311 So.2d 471.
‘In addition to disallowing $13,200.00 for piles, also disallowed are $680.00 for Van Electric Co.; $268.00 for shower pan replacement; $232.42 for Carrollton Plumbing; $784.00 for Trendle, Inc.
‘The award will include:
Bonura .$60,122.02
Roofer . 350.00
Mr. Schrenck . 790.00
Landscaping. 2,922.71
Landscaping. 834.26
$65,018.99
‘New Orleans, Louisiana, this 21st day of
December, 1979.
/s/Gerald P. Federoff Judge”

From this judgment the defendant appealed asserting that the judgment in favor of the plaintiffs was in error. The plaintiffs answered the appeal and sought an award for the items which were disallowed plus attorney’s fees pursuant to Civil Code Article 2545.

In a redhibitory action the plaintiff must prove by a preponderance of the evidence that the item sold contained a hidden defect before the sale which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or so imperfect that the purchaser would not have bought it had he known of the defect. C.C. 2520, 2521, 2530, Moreno’s Inc., v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975).

The record disclosed that a few years prior to the sale of the home in January of 1977 the house had been experiencing cracking in the walls, separation of the grillwork from the home and other defects. During the years prior to the sale to the Prats, the defendant constantly had people repairing the cracks and other defects which would return approximately every six months. In particular the record reveals that the residence was repaired by Charles Lang, a painter and plaster repairman, as late as October, 1976 and by the defendant’s handyman, Floyd Villavasco, just prior to his retirement in September of 1976. Furthermore, Mr. Herman Abry, a contractor specializing in house raising and shoring testified that he advised Mrs. Hey-man as far back as 1975 that the house was experiencing soil sinkage and should be shored.

Based on these facts the trial judge concluded that although the severe cracking and other damage manifested itself four to five months after the sale, the home was nevertheless defective at the time of the sale. We can find no manifest error in this factual conclusion.

The defendant-appellant does not seriously contend that the home did not contain severe cracks and that the foundation was sinking. She based the thrust of her argument on Civil Code Article 2521 claiming that the defects do not lend themselves to an action for redhibition or quantum minoris since they were apparent by a simple inspection.

In order to determine whether a defect is apparent by a simple inspection the courts have used a reasonable standard which is discussed Pursell v. Kelly, 152 So.2d 36 (La.1963) at p. 41.

The proper test to be applied to this case, we think, as in all other cases of this kind, is whether a reasonably prudent buyer acting under similar circumstances, would have discovered the presence of termite damage in the premises.

In Fraser v. Ameling, 277 So.2d 633 (La.1973), the Supreme Court reaffirmed the reasonable man standard but explained that while an inspection connotes more than a casual observation the buyer need not inspect with expertise or “deface” the thing purchased while inspecting it.

The plaintiffs, the realtor, Eileen Wallen, L. K. Clement, Jr., at attorney friend of the plaintiffs and Judge James D. Carriere, all testified that the home appeared to be well kept and in excellent condition, except for some minor imperfections.

The witnesses called by the defendant all stated that they noticed the defects on their own because they were readily apparent. Two of the witnesses, Tippin Moran, and Dr. Michael Ellis, who visited the home in July of 1976 some six months prior to plaintiffs offer, said there were apparent defects and submitted an offer of $140,000 because Dr. Ellis liked the house, but it was a great deal more than he could afford and he was thinking of converting the cabana area to an apartment, as well as make some repairs. Even so defects which they noticed on the home could have been repaired when the Prats visited the home in January, 1977.

The trial judge having been in the best position to determine the demeanor of the witnesses, obviously concluded that because the house appeared in such fine condition when the plaintiffs examined it and since the experts testified that it would be extremely hard for a layman to notice any foundation sinkage the defects were not apparent to a buyer making the type of inspection required by Pursell, supra.

Accordingly, the trial judge found in favor of the plaintiffs after concluding that the house contained redhibitory defects before the sale which were not apparent upon a simple inspection and which rendered the house so imperfect that the purchasers would not have acquired the house had they known of the defect.

We conclude that the trial judge’s ruling was not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1830 (La.1979).

The plaintiffs answered the appeal and sought an increase in the award in the following particulars:

1. $13,200 for pump piles,
2. $680 for Van Electric Company,
3. $268 shower pan replacement,
4. $232.40 Carrollton Plumbing,
5. $784 Troendle, Inc.,
6. $15,000 Attorney’s Fees.

From a reading of the record it is quite obvious that the trial judge did not allow an award for the electrical system repairs, the shower pan replacement and Carrollton Plumbing because the plaintiff failed to prove that the problems existed before the sale. The work on the electrical system was done in November, 1977, six months after the Prats moved in. Furthermore, the plaintiffs did not call to the stand the electrician who performed the work. It is equally certain that the cost for the plumbing work and shower pan replacement are not recoverable as the problem occurred in October, 1979, two and one-half years after they moved in. Aside from the time periods involved the plaintiffs failed to prove by a preponderance of the evidence that these problems were defects existing before the sale.

The cost of the pump pile, the bill for Troendle, Inc., and the award of attorney’s fees require serious consideration. In Ashley v. Volkswagen of America, Inc., 380 So.2d 702 (La.App. 4th Cir. 1980), this court discussed the appropriate standard to use when a plaintiff is entitled to a reduction in price, at 705:

“[2] In Menville [v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App.)] we allowed a reduction in the purchase price to the extent of $400.00 plus the cost of repairs. We stated that, where a plaintiff is entitled to a reduction in price, the amount of the reduction should be the ‘difference between the sale price and .. . the fair value as of the time of the sale, if the defects had been known’ 300 So.2d 862. Factors to be considered include expert opinion testimony, costs of repairs, or evidence of any other facts bearing on the price to which informed parties would have agreed. Menville v. Stephens Chevrolet Inc., supra; Williamson v. Strange, 323 So.2d 875 (La.App. 2nd Cir. 1975). See also, Couch v. Frichter's Sportsmen's Haven, Inc., 365 So.2d 901 (La.App. 4th Cir. 1978), writ refused 367 So.2d 1185 (La.); Davis v. Davis, 353 So.2d 1060 (La.App. 2nd Cir. 1977), writ refused 355 So.2d 549 (La.1978); Guillory v. Pitre Ford Co., 345 So.2d 1274 (La.App. 3rd Cir. 1977). Ultimately the amount of the reduction is within the court’s discretion.

In light of this it appears that consideration should be given to what the parties actually bargained for. This reasoning stems from Buchanan v. McMillan, 311 So.2d 469 (La.App. 4th Cir. 1975) wherein Judge Lemmon in a concurring opinion stated that the plaintiff should not receive an award for the cost of piles since, when he bought the house, he did not bargain for a house with a pile foundation. Thus we hold that the trial judge was correct in disallowing the cost of pump piles.

Again, the plaintiff bargained for and got a wooden floor covered with a carpet. The fact that the carpet was removed and the natural floor refinished did not entitle plaintiffs to be reimbursed for the refinishing, and the trial court, properly disallowed this expense.

Appellees in their request for attorney’s fees cite C.C. Art. 2545: The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.

Jurisprudentially this article was discussed in Harris v. Bardwell, 373 So.2d 777 (La.App. 2nd Cir. 1979) at 780:

“The Sellers Liability”
[3] A seller who knows of defects, or who, with reasonable inspection can find obvious or apparent defects, in the product he sells, stands in a similar position as the manufacturer of the product. See CC Art. 2545, Hunt v. Ford Motor Co., 341 So.2d 614 (La.App. 2nd Cir. 1977). The seller does not have to make minute inspection or disassemble the product to look for latent defects and, unlike the manufacturer he is not presumed to know the latent defects in the product he sells. Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974).

It has been recognized, however, in Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975) that the mere knowledge of a redhibitory defect prior to the sale does not automatically cause the seller to be liable for attorney’s fees under C.C. Art. 2545 if his actions taken prior to the sale to remedy the defects were reasonable and he was in good faith in believing that the defect was cured.

When considering the element of attorney’s fees, the trial court’s reasons for judgment indicate that he could find no “bad faith” on the part of the defendant. Nonetheless, the evidence adduced at trial shows that the defendant was told, as far back as 1974, that the house was sinking and needed shoring. When the defendant was told that the house was sinking in 1974 the defective condition existed. Her knowing this and failing to disclose this information to the purchaser makes C.C. Art. 2545 applicable.

Although, it is obvious that defendant did attempt to keep the home in good repair, her attempts were futile, and she knew or should have known from their recurring nature that the defects were not cured. Thus the trial court erred in not allowing plaintiffs to recover attorneys fees in the amount of $15,000.00 as testified to at the trial by plaintiff Mr. Fernand G. Prat, Jr.

Accordingly, judgment of the trial court is amended to include attorney’s fees of $15,000 and in all other respects affirmed.

AMENDED IN PART AND AFFIRMED.


author: BYRNES, Judge.

text:
    Ysidro HERNANDEZ v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. COMMERCIAL UNION INS. CO., et al. v. Ysidro HERNANDEZ.
    Nos. 12545, 12546.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendant-appellee.
    Charles R. Maloney, New Orleans, for plaintiff-appellant.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This appeal arises out of an automobile accident on December 6,1975, involving appellant, Ysidro Hernandez, and an automobile owned by appellee, Richard Kernell. The issue presented on appeal is whether or not Hernandez was covered by an insurance policy at the time of the accident.

Suit was instituted by Hernandez, against State Farm Mutual Automobile Insurance Company, (hereinafter refered to as State Farm), for failure to honor the terms of a policy of insurance between the two. State Farm alleged that the policy was not in force at the time of the accident because of non-payment of premium. Before this case could be tried on its merits, Commercial Union Insurance Company, (hereinafter referred to as Commercial Union) and Richard Kernell sued Hernandez for damages arising from the December 6,1975 accident. Hernandez made third party demand against State Farm to defend him as per the policy provisions. State Farm answered and maintained that the policy sued upon was not in force at the time of the accident. The cases were consolidated and tried together. The trial court ruled in favor of State Farm against Hernandez in the first suit and in favor of State Farm, Commercial Union and Kernell against Hernandez in the second suit. From this judgment, petitioner appeals.

An examination of the facts indicates that the due date for the insurance premium was November 19, 1975. On or about October 19, 1975, a renewal notice was sent to Hernandez advising him of the November 19,1975 expiration date. On November 22nd three days after expiration, a letter was sent to Hernandez stating that if he paid the premium within ten days of its receipt which was December 3, 1975, the policy would be re-instated with continuous coverage from November 19, 1975. Mr. Hernandez stated that he mailed a check for the full amount of the premium to State Farm on December 6, 1975. Later that afternoon he was involved in the accident with Kernell. At the trial the envelope containing the premium check was certified by the court to be postmarked December 7, 1975. State Farm reinstated the policy as of December 8, 1975 and mailed a check to Hernandez in the amount of $14.95 said amount being a refund for the unearned premium for the period the policy was out of force.

In cancelling a policy because of nonpayment of premium LSA-R.S. 22:636.1, states that an insurer must give ten days notice to the insured. In the instant case, State Farm complied with this statute.

The insurer mailed the notice to Hernandez’s last known address, 3111 Palmyra Street, New Orleans, Louisiana and the late premium check sent by Hernandez had that address imprinted on it. Hernandez stated in the record that he had moved from the Palmyra Street address, but had failed to notify the insurer. State Farm met the obligation as required by La.R.S. 22:636(B) which states:

“The mailing of any such notice shall be effected upon by depositing it in a sealed envelope, directed to the addressee at his last known address known to the insurer or as shown in the insurer’s records with the proper pre-paid postage affixed, in a letter depository of the United States Post Office. The insurer shall retain in its records any such item so mailed, together with its envelope, which was returned to by the Post Office upon failure to find, or deliver the mailing to the addressee.”

We find as did the trial court, that there is no real basis to support the violations of the insurance code alleged by appellant and that it was Mr. Hernandez’s lack of prudence which occasioned the termination of coverage between November 19, 1975 and December 7, 1975.

Accordingly we affirm in toto the decision of the trial court.

      . (D) No notice of cancellation of policy to which Subsection B of C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. Unless the reason accompanies or is included in the notice of cancellation the notice of cancellation shall state or be accompanied or delivered to the insurer not less than fifteen days prior to the effective date of cancellation, the insurer will specify the reason for such cancellation. The subsection shall not apply to nonrenewal.


text:
    Etienne PELLEGAL, Jr., and Joyce Trouillet, Wife of Etienne Pellegal, Jr. Individually, and as Administrator of the Estate of their Minor Child, Todd Lance Pellegal v. Eugene DUREAU.
    No. 12534.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Charles J. Arceneaux, New Orleans, Anthony W. Wambsgans, Cronvich, Wambs-gans & Michalczyk, Metairie, for defendants-appellees.
    Frederick J. Gisevius and David E. Caruso, Jr., New Orleans, for plaintiffs-appellants.
    Before GULOTTA, BYRNES and DAVID R. M. WILLIAMS, JJ.
   BYRNES, Judge.

Appellants appeal the sustaining of the peremptory exception of no cause of action to certain defendants by the lower court.

On December 1,1977, a petition for damages was filed on behalf of the minor child, Todd Lance Pellegal, by his parents. The named defendant was Eugene Dureau. The petition avers that on November 29, 1977, defendant, Dureau, accidently shot the minor child, Pellegal, who asks for damages. Dureau answered on January 18, 1978 and pleaded the affirmative defense of contributory negligence on behalf of the boy. Dureau was deposed on January 19, 1978. The first supplemental and amending petition was filed by plaintiffs on November 29,1978 and added other defendants including Ralph Ferrento, Chief Deputy Sheriff, both in his official capacity and individually, Herman Schoenberger, individually and in his capacity of Sheriff and Tax Collector of Plaquemines and International Surplus Lines, Inc, the insurer of one or more of the defendants, but failed to state a cause of action against these particular defendants.

On January 7, 1981, Ralph Ferrento and Herman Schoenberger, individually and in their official capacities filed peremptory exceptions of no cause of action. On that same date, International Surplus also filed a peremptory exception of no cause of action, claiming that since the allegations did not state a cause of action against Schoen-berger and Ferrento, the insurance company could in no way be held liable as their insurer. After filing these exceptions, the plaintiff filed a second supplemental and amending petition. That petition went into detail unlike the first supplemental and amending petition which took almost a notice pleading approach. The second supplemental and amending petition alleged specific facts upon which liability would be premised if these facts were found to be true.

In Metoyer v. Sewerage and Water Board of New Orleans, 100 So.2d. 792 (1958) the court stated: “The exception of no cause of action raises only the question of whether on the allegations of the petition, if true, there are facts which justify recovery; Is there a “cause” on which suit may be based?”

In Williamson Marine Transport, Inc. v. Louisiana Tax Commission, 293 So.2d. 29, 1974. The court, addressing itself to dealing with issues raised by an exception of no cause of action, stated: “In resolving issues raised by an exception of no cause of action, all well pleaded facts must be accepted as true.”

When the defendant filed the exception of no cause of action, it may well have been sustained, however, the subsequent filing of the second supplemental petition cured defects complained of in the exception.

Therefore the finding of the trial court sustaining the exception of no cause of action is reversed.

      . Paragraph 1-B stated in part, that Schoenber-ger and Ferrento were responsible vicariously under the doctrine of respondeat superior for failing to establish proper guidelines or standards concerning distribution or use of firearms of Sheriffs office personnel and permitting unqualified persons to receive firearms.
      Paragraph 1-C stated in part, that Ferrento should have known that Dureau was incompetent to use said pistol that was allegedly furnished him and alleged further acts of negligence on the part of Ferrento.
      Paragraph 1-D stated in part, that Schoenber-ger allowed the pistol to be furnished Dureau and had a duty to examine this gun recipient for competency prior to the distribution.


text:
    Mrs. Karen MAKAS, Individually and as natural tutrix and administratrix of the estate of her minor daughter, Darcy Lyn Hamburg v. NEW ORLEANS PUBLIC SERVICE, INC., General Electric, Inc., Electric Mutual Liability Insurance Company v. Mabel B. Seely, Wife of/and Bernard T. SEELY v. NEW ORLEANS PUBLIC SERVICE, INC., General Electric, Inc., Electric Mutual Liability Insurance Company and Elmer W. Robeaux.
    Nos. 12549, 12550.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Floyd M. Greene, New Orleans Public Service, Inc., James R. Carter, Porteous, Toledano, Hainkel & Johnson, Gen. Elec. Co., and Elmer W. Robeaux, New Orleans, for defendants-appellants.
    J. Robert Ates, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal arising from a case involving an intersectional collision between a New Orleans Public Service Streetcar and a van owned by General Electric Co., (hereinafter referred to as GE). The streetcar was proceeding north on Carrollton Avenue in New Orleans. When it was three quarters of the way through the intersection, it was struck by a van driven by Elmer W. Robeaux, which was attempting a left hand turn onto the neutral ground. The van struck the streetcar behind its front doors, rupturing the streetcar’s air tank. This resulted in a loss of air pressure and the streetcar continued on for six blocks without any brakes before it was able to stop. Upon losing pressure, the doors to the streetcar opened and the minor child, Darcy Lyn Hamburg, was ejected out of the streetcar, striking her head on a light pole. Mabel Seely, a passenger on the streetcar at the time of the accident, complained of injuries sustained as a result of the jostling she received while on the runaway streetcar. Karen Makas, (on behalf of her minor daughter Darcy Lyn Hamburg) sued both NOPSI and General Electric Co., owners of the van. This suit was consolidated with Mabel Seely’s suit against NOPSI, and General Electric. In the Makas suit the trial court rendered a judgment for the plaintiff against defendants, NOPSI and General Electric.

In the Seely suit, judgment was rendered in favor of the plaintiffs against NQPSI only. General Electric while originally a defendant in this suit, was dismissed by the trial court with full prejudice because of plaintiffs’ failure to answer interrogatories propounded by General Electric.

We concur with the trial court’s finding of negligence on the part of both General Electric and NOPSI.

Louisiana Revised Statute 32:104(A) states: No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the road as required in RS 32:101, or turn a vehicle to enter a private driveway, or otherwise turn a vehicle from a direct course or move right or left upon a road way unless and until such movement can be made with reasonable safety. (Emphasis ours)

There is a long line of jurisprudence which interprets the statute as imposing a very high degree of care on a driver making a left turn. A left turn is a dangerous maneuver and the driver has a duty not to attempt the turn until it may be completed safely and he carries the burden of exculpating himself of fault should an accident occur. Bennett v. United States Fidelity Guaranty Co., 373 So.2d 1362 (La.App. 1st Cir. 1979), writs refused 376 So.2d 1269 (1979); Choate v. Louisiana Farm Bureau Mutual Insurance Co., 384 So.2d 511 (La.App. 2nd Cir. 1980); Harry v. Harvard Accident and Indemity Co., 312 So.2d 695 (La.App.3rd Cir. 1975); Henry v. Highland Insurance Co., 315 So.2d 145 (La.App. 3rd Cir. 1975).

NOPSI did a creditable job in showing the concurrent negligence of General Electric was in fact the cause of the injuries sustained by plaintiffs, however, NOPSI did not meet the burden imposed upon them to exculpate themselves of negligence. The Supreme Court in Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979) stated very succinctly that a mere showing of an injury to the fare paying passenger will impose liability on the common carrier and it is up to the carrier to overcome the heavy presumption of negligence which accompanies the highest degree of care imposed on common carrier for the safety of the passengers. This court in Holman v. NOPSI, 398 So.2d 1233 (La.App. 4th Cir. 1981) has reiterated the view expressed in Galland, supra, pertaining to the heavy burden placed on the common carrier in instances such as this.

The trial court heard testimony that there was no back-up braking system on the streetcar, that the airtank was unprotected, and that the streetcar driver did not exercise the requisite degree of care imposed upon him on approaching the intersection. These acts of negligence coupled with NOP-SI’s common carrier status clearly supports the trial court findings of negligence.

QUANTUM

General Electric further appeals the trial court’s decision granting NOPSI’s third party claim for damages owed to Seely. General Electric argues that since they were dismissed from the suit because of failure of Seely to answer interrogatories the third party demand of NOPSI should not have been granted by the trial court. We agree. The dismissal of General Electric is paramount to a contractual release of General Electric to Seely.

Art. 2103, states that a defendant sued upon on the whole amount of this debt may, by the third party action enforce contribution of another joint tortfeasor, even though he is not a party to the suit.

Since General Electric, by its release, is no longer party to the suit, NOPSI through their third party demand would be able to recover General Electric’s virile share of one half through the third party demand, had the dismissal not been direct result of Seely’s actions. The third circuit in Harvey v. Travelers, Co., 163 So.2d 915 (La.App. 3d Cir. 1964) states:

Our conception of the existing jurisprudence is that a solidary debtor under a conventional obligation, who pays the entire debt to the creditor, becomes legally subrogated to the rights of the creditor against the other solidary obligors for their proportionate part of the debt. If the creditor, however, settles with and releases one solidary debtor, he thereafter has no further rights or claims against that debtor to which another party can be subrogated. And, in the event the creditor by his own act, deprives one solidary obligor, then the creditor is not entitled to recover from the first debtor the share of the debt owed by the other against whom no right or subrogation remains.

A. Ledoux & Co., v. Rucker, 5 La.Ann. 500; Lynch v. Leathers, 17 La.Ann. 118.

The decision of the Supreme Court in A. Ledoux & Co., v. Rucker, supra, was correctly summarizéd in a syllabus to that case which reads as follows:
“Where several persons have signed an obligation in solido, they are, inter se, debtors each one for his share. Upon the payment of the whole debt by one of them, that one is entitled to be sub-rogated to the rights of the creditor against the other; and so far as the creditor has impaired this right of sub-rogation he is barred from recovering.”

(5 La.Ann. 500 Emphasis added.)

Since Seely, by her actions has impaired subrogation rights of NOPSI, plaintiff will only be entitled to recover one half of the original judgment made by the trial court, i.e., $1,695.00.

Appellee, Makas, cross-appealed and as cross-appellant asked for an increase in quantum and for attorneys’ fees, due to the alleged frivilous nature of the appeal. We find no merit to cross-appellant’s claim for damages under Louisiana Code of Civil Procedure Art. 2164, as we do not feel this appeal is frivilous. •

The trial court awarded $6,000.00 in general damages and $266.75 special damages to Makas for injuries to her minor daughter, Darcy Hamburg. The child sustained a minor concussion as a result of the accident. A few months later, she blacked-out while at a grocery store and fell into a display. On April 25,1975, while riding her bicycle, the minor child blacked-out and fell sustaining a fractured clavicle. Although the $266.75 special damages awarded by the court included $84.75 in costs incurred as a result of the bicycle accident, it is unclear whether the $6,000.00 in general damages were meant to include the broken clavicle. If the award was meant solely for the concussion sustained it would appear to be adequate. If, on the other hand, the award, encompassed both the concussion and the fractured clavicle, it would appear to be inadequate, although not outside that area of discretion of the trial court in assessing damages. Coco v. Winston Industries, 241 So.2d 332 (La.1976): Reck v. Stevens, 373 So.2d 498 (La.1979). There was no manifest error in the amount awarded by the trial court and therefore we must affirm quantum as to Makas.

AMENDED AND AFFIRMED.

      . La.Civil Code Article 2103:
      When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi-contract, an offense, or a quasi-offense, the debt shall be divided between them. If the obligation arises from a contract or quasi-contract, each debtor is liable for his virile portion. If the obligation arises from an offense or a quasi-offense, it shall be divided in proportion to each debtor’s fault.
      A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Articie[s] 1111 through 1116 of the Code of Civil Procedure, whether or not the party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff. (Amended by Acts 1960, No. 30 § 1; Acts No. 431, § 1)


author: CIACCIO, Judge.

text:
    TIDEWATER, INC. and Lexington Insurance Company v. BALDWIN-LIMA HAMILTON CORPORATION, Lima Division, XYZ Insurance Company, Clark Equipment Company, ABC Insurance Company and Boyce Machinery Corporation.
    No. 12482.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Edward D. Markle and S. Reed Morgan of Adams & Reese, New Orleans, for plaintiffs-appellants.
    Robert E. Kerrigan, Jr. and Jerry T. Se-well, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   CIACCIO, Judge.

Plaintiffs, Tidewater, Inc. and Lexington Insurance Company, appeal the judgment sustaining the peremptory exception of prescription and dismissing their tort, redhibition, and contract claims against defendant, Boyce Machinery Corporation. We affirm.

On or about September 11,1969 a 2000-C “Lima” crane was sold to Tidewater Marine Services, Inc. by Baldwin-Lima Hamilton Corporation, Lima Division, the manufacturer of the crane, through its local distributor, Boyce Machinery Corporation (“Boyce”). The crane was shipped directly to American Marine Shipyards where it was installed on the LIFT TIDE, a ship being built by American Marine Shipyards for plaintiff, Tidewater.

In December, 1974, the crane was removed from the LIFT TIDE and attached to a dock on the Atchafalaya River. While attached to that dock, the crane failed on or about October 14, 1978, causing damage to the crane. Plaintiffs allege that the failure was due to manufacturing and/or design defects, causing damage to the crane itself and financial losses due to “down time” and “loss of use”. Tidewater’s insurer, Lexington Insurance Company, claims the sum of $27,922.35 under its subrogation rights for the costs of repairs to the crane, and Tidewater claims its insurance deductible of $10,000.00 together with $30,000.00 for alleged loss of use, down time and loss of profits.

On August 21, 1980 Tidewater and its insurer filed suit against Baldwin-Lima, the manufacturer of the deck crane, Boyce Machinery Corporation, the distributor of the deck crane, and their insurers alleging negligence, a redhibitory vice, and breach of contract. Defendant, Boyce Machinery Corporation, filed a peremptory exception of prescription to all claims and the District Court, after a hearing, rendered judgment maintaining the exception of prescription and dismissing, with prejudice, plaintiff’s petition insofar as it applied to defendant, Boyce Machinery Corporation, from which judgment plaintiffs appealed.

On appeal appellant contends that its claim against Boyce is not prescribed under a contract theory of recovery nor is its cause of action prescribed under admiralty jurisdiction. Although appellants acknowledge that the subject crane was sold by Boyce to Tidewater for the sum of $196,-454.22, with payment to be made upon delivery or approximately fifteen days after shipment and that other additional pieces of equipment were sold by Boyce to Tidewater as accessories to be used in connection with the operation of the crane, appellants contend that the transaction was not a contract of sale, subject to the usual redhibitory prescriptive period, but was a contract involving an obligation to inspect the crane after its installation, which would convert the transaction from a sale to a contract which must be controlled by a ten year prescriptive period under Article 3544 of the Louisiana Civil Code.

The record discloses that the crane and the accessory parts were shipped directly from the manufacturer’s plant in Lima, Ohio to The American Marine Shipbuilding facility in New Orleans, that the crane was not shipped in one piece but had to be assembled on the ship which was then under construction, that the installation was made by the shipbuilder for the account of plaintiff and that Boyce inspected the equipment on September 29, 1970 to make certain the crane was in proper operating order and that plaintiff’s employees were instructed in the proper operation and care of the crane that they had purchased. No claim is made in connection with the operation of the crane while it was attached to the vessel LIFT TIDE nor is any claim asserted that defendant Boyce had anything to do with removing the crane from LIFT TIDE in December of 1974 and at-, taching it to a dock on the Atchafalaya River on a facility operated by plaintiff although the record indicates that the manufacturer, Baldwin-Lima, was advised of the failure that took place on October 16, 1978 and that the manufacturer assisted in advising plaintiff how to proceed with the necessary repairs. Plaintiffs’ Exhibit A introduced in the trial proceedings discloses that the manufacturer denied responsibility for the repairs and, on November 10, 1978, advised plaintiffs that the manufacturer would not accept any responsibility for the repairs even though the contention was made that the failure was caused by faulty welding that occurred when the crane was originally manufactured.

On appeal it appears that plaintiffs have abandoned their claim in redhibition under Article 2534 of the Louisiana Civil Code as this matter is not addressed in their brief. Since the redhibition claim was asserted in the brief filed by appellant in the lower court we hold that the one year prescriptive period set forth in Article 2534 applies in this case since the original petition was filed some twenty-two months after the crane failed and approximately twenty-one months after plaintiffs were informed by the manufacturer that it would assume no responsibility for the repairs, and denied liability for same.

Redhibitory actions prescribe one year after the sale if the seller is in good faith. LSA-C.C. Article 2534. Redhibitory actions prescribe one year after the discovery of the vice if the seller was in bad faith. LSA-C.C. Article 2546. Under these articles suit must be brought within one year, at the latest, from the date of the discovery of the defects. Thus, any redhibitory action plaintiffs may have had against Boyce was prescribed prior to the filing of the suit.

The prescriptive period for tort actions is one year. LSA-C.C. Art. 3536. Since plaintiff had knowledge of the failure of the crane some twenty-two months prior to the filing of the suit any action in tort is void by the one year prescriptive period.

Plaintiffs’ argument that their cause of action is governed by the ten year prescriptive period for an action based on a breach of contract is not supported by the record. Plaintiffs allude to a contract between Boyce and Tidewater, but no such contract is found in any of the documents included in the record. Appellants have attached exhibits to their brief which are not part of the trial court record and which cannot be considered by this Court. Blouin v. Loyola University, 325 So.2d 848 (La.App. 4th Cir. 1976). The only documentary evidence introduced on the trial of the pleas of prescription in the lower court involving defendant Boyce were various purchase orders and invoices between Tidewater and Boyce and the inspection certificate executed by one of Boyce’s employees in connection with the inspection of the fully installed crane on September 29, 1970. We find that the only contract that existed between plaintiff and Boyce was a contract of sale between plaintiff as purchaser and Boyce as the local distributor in the sale of the crane to Tidewater. Although appellants cite eases in support of its contention that this sale should not be governed by the redhibition articles but was a furnish and install contract as in the cases cited by appellants, an examination of those cases indicates that they in no way support appellant’s claim.

Although the subject crane may have been manufactured and assembled after the sale’s transaction the documents indicate that Tidewater ordered a Lima 2000-C crane and certain accessories for which it was to pay Boyce upon delivery and there are no references to installation and assembly by Boyce or to any other contractual obligations. Although the manufacturer and distributor may have consulted with plaintiff and jointly participated in the drawing up of specifications for the crane ultimately sold by the distributor to plaintiff these actions do not change this transaction from a sales contract to an obligation to do or not to do. The mere fact that an obligor may be involved in the installation and delivery of the equipment will not change the characterization of the obligation from that of a sales contract and therefore the rules governing a sale will control. FMC Corp. v. Continental Grain Co., 355 So.2d 953 (La.App. 4th Cir. 1977). Thus, this case must be governed by the redhibition articles of the Civil Code and do not come under a contract theory of recovery.

Although appellants suggest that the case of Weathermasters Parts & Service, Inc. v. McCay, 242 So.2d 306 (La.App. 4th Cir. 1971), should be controlling, that case involved a suit based on a warranty given by the manufacturer, Trane, with the failure of the equipment taking place during the contractual warranty period. Judgment was rendered against the manufacturer-warrantor, under the specific terms of the warranty agreement. The only written obligation presented by plaintiff is Baldwin-Lima’s six month warranty that the crane was merchantable and free from defects in material and workmanship. This was not a contract between Boyce and Tidewater nor did the failure occur during the warranty period. Any obligations which existed between the manufacturer and appellants cannot be imposed upon defendant, Boyce. Finally, plaintiffs allege that the defect and damage to the crane resulted from negligence on the part of the seller and manufacturer for improper inspection which was part of the original contract between Tidewater and Boyce. If Boyce had an obligation to inspect the equipment after its installation upon the LIFT TIDE that inspection was incidental to the sale of the crane and does not change the nature of the transaction from one of sale to one of contract.

Tidewater, on appeal, argues that general maritime jurisdiction applies in this case and, under Federal Maritime Law or admiralty jurisdiction, that this court must apply Federal procedure and substantive law. Further, that the “doctrine of laches” will control the time in which an aggrieved party has to bring its claims before a tribunal and that the prescriptive period for maritime torts will be governed by the Federal doctrine of laches and not by the one year prescriptive period mandated by State law.

Boyce argues that there is no basis in law for plaintiffs’ assertion of the applicability of maritime law. Plaintiff contends that the crane was originally designed for maritime activities and was actually performing traditional maritime work on the Atchafa-laya River at the time of the accident as the crane was in the process of lifting a barge from the Atchafalaya River when the boom failed, causing the barge and boom to fall into the navigable waters. It is not disputed that the crane was originally supplied to Tidewater to become part of a ship being built for Tidewater by American Marine Shipyards, and further, that at the time of the accident, the crane was permanently affixed to a dock located on the Atchafala-ya River.

On the issue of maritime jurisdiction this Court finds persuasive a decision by the United States District Court for the Southern District of Texas, in a case involving the identical parties litigant and the identical facts as are the subject of this suit.

After a full evidentiary hearing on the issue of maritime jurisdiction, that court concluded that maritime jurisdiction did not exist and granted Boyce’s motion to dismiss for lack of subject matter jurisdiction.

We adhere to and adopt as our own the reasoning of that court on the issue of maritime jurisdiction. The reasoning of the court is:

“Plaintiffs assert that this Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1333 because the crane which has occasioned this lawsuit was intended for use in navigable waters and was being used in the maritime trade. However, the crane in question originally was sold to Tidewater as a part for a ship being built for Tidewater by American Marine, Inc. A contract to construct a ship or to supply materials therefor is nonmaritime. Thames Towboat Co. v. The Schooner Francis McDonald, 254 U.S. 242 [41 S.Ct. 65, 65 L.Ed. 245] (1920); Walter v. Marine Office of America, 537 F.2d 89 (5th Cir. 1976); Hollister v. Luke Construction Co., 517 F.2d 920 (5th Cir. 1975).

“With regard to plaintiffs’ tort claim, the Court also lacks jurisdiction under 28 U.S.C. § 1333. The failure of the crane in 1978 occurred approximately four years after the crane had been removed from the vessel into which it had been installed, and reinstalled on a dock located on the Atchafalaya River in Morgan City, Louisiana. ‘As historically construed by the Supreme Court, maritime jurisdiction does not embrace accidents on land, or injuries inflicted to or on extensions of land such as docks and piers.’ Parker v. South Louisiana Contractors, Inc., 537 F.2d 113 (5th Cir. 1976), reh. denied, 539 F.2d 710 (5th Cir. 1976), cert. denied, 430 U.S. 906 [97 S.Ct. 1175, 51 L.Ed.2d 582] (1977), citing Victory Carriers, Inc. v. Law, 404 U.S. 202 [92 S.Ct. 418, 30 L.Ed.2d 383] (1971) and Nacirema Operating Co. v. Johnson, 396 U.S. 212 [90 S.Ct. 347, 24 L.Ed.2d 371] (1969).

“The plaintiffs have failed to state a cause of action in either maritime contract or maritime tort.”

We therefore conclude that plaintiffs’ claim is governed by the prescriptive periods governing tort actions or redhibitory actions under Louisiana Law. Since the suit against Boyce was filed more than one year after the crane suffered damages, and more than one year after plaintiffs discovered the defect in the crane, and more than one year after plaintiff was advised by the manufacturer that it would assume no responsibility for repairs, any claim against Boyce for damages based upon a liability in tort or redhibition has prescribed.

For the reasons assigned, the decision of the trial court is affirmed. All costs to be borne by the appellant.

AFFIRMED.

      . Tidewater, Inc. and Lexington Insurance. Company v. Baldwin-Lima Hamilton Corporation, Lima Division, XYZ Insurance Company, correct name unknown, Clark Equipment Company, ABC Insurance Company, correct name unknown, and Boyce Machinery Corporation, Civil Action No. H-80-1910. Motion to dismiss for lack of jurisdiction, granted Dec. 30, 1981.


author: LOBRANO, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. VICTORY LAND COMPANY, INC., Tupper Supply Co., John P. Hall, Jr. and John P. Hall, Sr., Junior Hall, III, and General Accident Insurance Company and New Orleans Public Service, Inc. SECURITY INSURANCE COMPANY, et al v. NEW ORLEANS PUBLIC SERVICE, INC., et al. FEDERAL INSURANCE COMPANY, et al v. NEW ORLEANS PUBLIC SERVICE, INC., et al. FIREMAN'S FUND INSURANCE COMPANY v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    Nos. 12487-12490.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 15, 1982.

      C. B. Ogden, II, New Orleans, for New Orleans Public Service for defendant-appellant.
    Weidemann & Fransen, A. Remy Fran-sen, Jr. and Allain F. Hardin, New Orleans, for Sec. Ins. Co., Tupper Supply Co., Inc. and Howard Billings appellees.
    Adams & Reese, Thomas J. Wyllie and S. Reed Morgan, New Orleans, for Federal Ins. Co. appellee.
    Bienvenu, Foster, Ryan & O’Bannon, Leonard A. Young and David E. Walle, New Orleans, for United States Fidelity & Guaranty Co. plaintiff-appellant-appellee.
    Drury & Grossel-Rossi, James H. Drury, New Orleans, for George W. Flach and Paul B. Jacob, Jr. amicus curiae.
    Before LOBRANO, BARRY and KLEES, JJ.
   LOBRANO, Judge.

On July 22, 1976 a fire occurred at 311 North Scott Street in the City of New Orleans. As a result of that fire, the tenants of the building, Major’s Book Store and Tupper Supply Company, and the owner, Victory Land Company, sustained property damage losses. In addition, the adjacent building at 3941 Bienville Street sustained property damage. The insurers of all parties paid the losses claimed and became subrogated to the rights of their respective insured. After a lengthy jury trial, judgment was rendered against New Orleans Public Service, Inc. (hereinafter referred to as NOPSI) for the full amount of the losses sustained. NOPSI perfected this suspensive appeal.

The evidence shows that on the day prior to the fire a violent thunderstorm caused a power outage at the 311 North Scott Street premises, as well as the surrounding premises. The testimony further indicates that NOPSI had its service crews in the area shortly thereafter, and power was ultimately restored that day. Once the power was restored, Tupper Supply had problems with three circuit breakers which would not stay engaged, but kept tripping. The next morning, Hall Electric Company was called to investigate. As Mr. Hall was preparing to investigate, the fire broke out in the bay area of the Tupper Store.

As the fire was being fought, Mr. Gene Bays of NOPSI arrived on the scene and removed the main fuses in the fuse box so that no part of the burning premises had any electricity flowing to it. Apparently this is normal NOPSI procedure in cases of a fire. This would still allow electricity to flow from NOPSI’s transformer to the meter, but not beyond.

At the trial of this matter, there were two theories espoused as to the cause of the fire. Mr. George Hero, plaintiffs’ expert, concluded that NOPSI’s meter was faulty which caused the neutral line to become energized resulting in a “hot spot” in the metal conduit in the bay area of Tupper’s premises. High current in the conduit system caused it to melt and fall upon flammable material which burst into flames. The other theory was that of Mr. Frank Johnson, an electrical engineer called upon by NOPSI to investigate the matter. He concluded that the fire was caused by a short circuit in the wiring on Tupper’s premises. This, NOPSI contended, was the responsibility of parties other than NOPSI.

The matter was submitted to a jury who found that there was a defect in the premises of Tupper Supply which was the responsibility of NOPSI (obviously, the meter); that NOPSI was negligent, and that said negligence was the proximate cause of the fire and resulting damages.

On appeal, NOPSI raises the sole issue that plaintiffs’ expert sold the jury a “bill of goods”. That is, appellant claims that it is scientifically impossible for the fire to have started in the manner theorized by Mr. Hero. In support of this argument, NOPSI relies on the amicus curiae brief filed by George W. Flach and Paul B. Jacob, Jr. Attached to the amicus brief are affidavits of both these gentlemen setting forth their expertise, and other facts. For reasons set forth hereinafter, this court will not consider the amicus curiae brief.

The law is well settled that issues not raised by the litigants cannot be raised by amicus curiae on appeal. Dinet v. Orleans Dredging Co., 149 So. 126 (Orleans App. 1933) Also, relief beyond that which is sought by the parties cannot be requested by amicus curiae. Parent-Community Alliance v. Orleans Parish, 385 So.2d 33 (La.App. 4th Cir. 1980), writ refused June 23, 1980. We now hold that the brief of an amicus curiae cannot be used as a vehicle to present additional or new evidence to the appellate court. In the instant case, the thrust of amicus curiae’s argument is that the Court consider the affidavits attached thereto. This Court will not consider the amicus curiae affidavits nor their brief. To do otherwise would be tantamount to allowing appellant to introduce new evidence at the appellate level and which was not subject to cross examination. We are duty bound to decide the issues based on the record before us. See Green Thumb, Inc. v. DLJ of Louisiana, 313 So.2d 284 (La.App. 3rd Cir. 1975), writ refused September 12, 1975; Gallagher v. Gallagher, 248 La. 621, 181 So.2d 47 (1965). If that were not the case, litigation would never end. Every aggrieved party would continually add evidence at each stage of the appellate level in the anticipation of receiving a favorable decision.

Having decided that the amicus curiae brief will not be considered, we now consider the merits of this case. Appellant strenuously urges this court to reverse on the grounds that the fire could not have started as theorized by Mr. Hero, and that Mr. Hero sold the jury “a bill of goods”. In Crump v. Hartford Accident and Indemnity Co., 367 So.2d 300 (La.1979), the Court stated the following well recited principle of appellate review;

“On appellate review, the trial court’s factual findings of work-connected disability are entitled to great weight. They should not be disturbed where there is evidence before the trier of fact which, upon the latter’s reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, unless clearly wrong. The reviewing court should not disturb reasonable evaluations of credibility and reasonable inferences of fact by the trial court, even though the reviewing court is of the opinion that other evaluations and inferences are reasonable.” Crump v. Hartford Accident and Indemnity Co., id. at p. 301.

See also, Canter v. Koehring Co., 283 So.2d 716 (La.1973) and Davis v. Owen, 368 So.2d 1052 (La.1979).

It is often stated that the reason for the “manifest error” or “clearly wrong” principles of appellate review is the better capacity of the fact trier (whether trial judge or jury) to evaluate the demeanor and credibility of the witnesses.

In the instant case, the jury had the opportunity to observe all witnesses, including the experts of both sides. They heard the testimony and were presented with the theories of both sides as to the cause of the fire. Their answers to the interrogatories propounded clearly indicate that they chose to believe the theory of Mr. Hero, appellees’ expert. There is sufficient evidence in the record to support this conclusion by the jury, and we see no reason to disturb same. The results of Mr. Hero’s investigation show that the meter had apparently exploded several days after the fire. This, coupled with the fact that the fuses had been removed at the time of the fire which prevented electricity from flowing beyond the meter, along with other factors, led him to conclude as he did. We find no manifest error in the jury believing one expert over another when there is ample evidence to support his opinion.

The Court further notes that the jury also found NOPSI negligent, and that their negligence was the proximate cause of the fire. Appellees argue that they (NOPSI) failed in their responsibility to check the meters after the thunderstorm which caused the power outage. Again there is sufficient evidence to support this conclusion, and we see no reason to rule otherwise.

Accordingly, the judgment of the trial court is affirmed.

      . All parties had agreed prior to trial the amount of their respective damages, and those issues were not raised at trial, nor are they part of this appeal.

      . Although this Court originally granted an ex parte motion allowing amicus curiae to file briefs in this matter, a show cause order was issued to amicus curiae to present reasons before oral argument on the merits, why the Court should consider the amicus curiae brief. All parties participated in the show cause motion prior to arguing the case on the merits.

      . Interrogatory number 5 provided, “Do you find that the fire which damaged Tupper Supply Company and others was the result of negligence on the part of New Orleans Public Service, Inc.?”
      The Jury answered “yes”.
      Interrogatory number 6 provided, “If your answer to No. 5 is ‘Yes’ was the negligence of New Orleans Public Service, Inc. the proximate cause of the damage?”
      The Jury answered “yes”.


text:
    LAKE FOREST, INC. v. BON MARCHE HOMES, INC. BON MARCHE HOMES, INC. v. LAKE FOREST, INC.
    Nos. 12504, 12505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.

      Charles E. McHale, Jr., New Orleans, for Lake Forest, Inc. appellant.
    Gerard H. Schreiber, New Orleans, for Bon Marche Homes, Inc. appellee.
    Before LOBRANO, BARRY and KLEES, JJ.
   LOBRANO, Judge.

On February 20, 1973, Lake Forest, Inc. entered into a purchase agreement with Bon Marche Homes, Inc. (Bon Marche) for the sale of some 46 lots in the Lake Forest section of New Orleans East. Bon Marche put up the usual 10% deposit amounting to $39,334.50 as required by the contract, and the act of sale was ultimately set for January 28, 1974. Bon Marche failed to appear on that date and take title to the property alleging that same was unmerchantable.

Bon Marche demanded the return of its deposit, but Lake Forest, Inc. refused to do so. Lake Forest, Inc. sued Bon Marche seeking a forfeit of the deposit (No. 570-751 of the Civil District Court) and Bon Marche sued Lake Forest seeking the return of its deposit (No. 571-072 of the Civil District Court). Both matters were consolidated and the trial was set for January 21, 1976.

On the morning of the trial, Bon Marche sought to file a third supplemental and amended answer, and reconventional demand alleging as an additional basis of un-merchantability a lawsuit filed on January 20, 1976. That suit, bearing docket No. 76-0884 of the Civil District Court, was filed by the heirs of Louis Boe against Lake Forest, Inc. seeking ownership of the subject property through adverse possession. Upon objection by Lake Forest, Inc., the trial court refused to allow the filing of the amended answer.

The case proceeded to trial as scheduled, and judgment was rendered in favor of Lake Forest, Inc., declaring the deposit forfeited. Bon Marche appealed that decision, and this Court remanded “for the purpose of determining whether the alleged previous presence of the squatter and his heirs’ subsequent action claiming title based on that presence made plaintiff’s title unmer-chantable at the time set for the act of sale, in the light of the circumstances then existent as known at the time of trial. Unless plaintiff establishes that its title was merchantable, it is not entitled to a forfeiture of deposit.” Lake Forest, Inc. v. Bon Marche Homes, Inc., 356 So.2d 1133 (La.App. 4th Cir. 1978) at p. 1136.

On remand, Bon Marche filed its amended answer setting forth suit No. 76-0884 filed by the Boe heirs as an additional defect rendering the title unmerchantable. Upon retrial, Bon Marche introduced into evidence not only the original suit filed by the Boe heirs against Lake Forest, Inc., (No. 76-0884), but three additional lawsuits filed by the same heirs against some 46 property owners in the Lake Forest area, (see footnote No. 2, supra) In all four of the Boe cases, they are seeking ownership to numerous properties, including the lots originally to be purchased by Bon Marche.

Prior to the retrial, Lake Forest filed a motion with the trial court seeking to determine whether any evidence pertaining to the “good faith” of the Boe lawsuit would be admissable. The trial court refused to allow any evidence on the issue of the good faith of the Boe suit, or of the actual possession of Louis Boe or his heirs. Judgement was rendered in favor of Bon Marche ordering the return of the deposit.

From that judgment Lake Forest perfects this appeal seeking a reversal on the basis that the trial judge was in error in refusing Lake Forest the opportunity to introduce evidence as to the actual possession of Boe or his heirs, and the “good faith” of their lawsuit.

A purchaser cannot be required to accept a title which is suggestive of litigation. Such a title is not merchantable, as it could not be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with the facts and questions involved. Young v. Stevens, 252 La. 69, 209 So.2d 25 (1968). The vendor’s obligation to deliver a merchantable title is a continuing one; the vendor cannot seek specific performance on the theory that merchantability as of the time of the default is the only test, and that ignorance of fact made the title merchantable at that time. Lake Forest, Inc. v. Bon Marche Homes, Inc., 356 So.2d 1133 (La.App. 4th Cir. 1978).

In his reasons for judgement, the trial court ruled that the “sole question is whether or not the mere filing of a suit by someone (other than the vendor) claiming to hold title — by whatever right — has the effect of making the title unmerchantable.” (see reasons for judgement, Lake Forest, Inc. v. Bon Marche Homes, Inc., No. 570-751 consolidated with 571-072). Appellant argues that such reasoning would allow any purchaser to escape the obligations of his purchase agreement by persuading a third party to file a frivolous claim against the seller, thus making the title unmerchanta-ble. Appellant would have us adopt a rule which would require the trial court in such instances to decide the merits of such a third party lawsuit before it decides the breach of purchase agreement suit. This would be totally objectionable. We will not require the trial court to go into the merits of such a third party suit prior to determining the issues of merchantability.

The mere fact that a suit brought by an adverse possessor or his heirs may eventually fail does not make the title merchantable. We cannot require a prospective purchaser to take title to property which is suggestive of litigation. In the present ease, the title is not merely suggestive of litigation, but it is the subject of pending litigation. The record reflects that the four Boe lawsuits involve substantial claims against some 47 defendants including appellant. It appears from the records of those suits that counsel for all parties have expended considerable time and energy in protecting their clients’ interests. Like any other lawsuit the Boe cases may eventually fail, but they are not the type of groundless, collusive lawsuits engineered by a third party to enable the buyer to avoid a sale. It is clear to this court that the efforts put forth in the Boe cases are not geared to help Bon Marche avoid a loss of its $39,-000.00 deposit.

Although there may be instances where a “bad faith” suit is filed for the sole purpose of avoiding a sale agreement, we do not find that to exist in the present case. In principle, a trial judge should allow evidence of “collusion and bad faith” of a third party lawsuit, and any evidence in rebuttal, but he should not be required to hear the merits of such a suit. Even though the trial court refused evidence as to the good or bad faith of the Boe plaintiffs, we find there was no harm to appellant. We are convinced that the title to the subject property is unmerchantable. “When a review of the record indicates the trial court judgment is correct and that justice has been done, the judgement will not be overturned because of error which did not affect the merits.” Carlton v. Great American Insurance Co., 340 So.2d 678 (La.App. 4th Cir. 1976).

Since the title is unmerchantable, the primary obligation of the purchaser to purchase is void. The secondary obligation of deposit forfeiture, being conditioned on the primary obligation, also is void. Lake Forest, Inc. v. Bon Marche Homes, Inc., 356 So.2d 1133 (La.App. 4th Cir. 1978). We therefore, conclude that in light of the four lawsuits filed by the Boe heirs, the trial judge was correct in ordering the return of the deposit previously forfeited by Bon Marche, and the assessment of costs against Lake Forest.

AFFIRMED.

      . The deposit consisted of one half in cash, and the other half in a demand, bearer note.

      . The heirs of Louis Boe subsequently filed three additional lawsuits in Civil District Court in August and September of 1979. These bear docket Nos. 79-12338; 79-12339; 79-13651.