text:
    Michael M. TIMMERMAN v. C. Derbes SMITH and C. Derbes Smith, Inc.
    No. 14683.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Robert P. Chatelain, Metairie, for plaintiff, appellant.
    Frederick Heisler, New Orleans, for defendants, appellees.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The principal issue presented here is whether or not plaintiff, who signed a purchase agreement for a certain piece of real estate, breached that agreement and is therefore required to pay the real estate commission to the listing agent.

The facts as presented at trial are as follows. Plaintiff, Michael M. Timmerman, agreed to purchase from the nominal owner, Robert T. Smith, a certain tract of land consisting of 5.05 acres. The land was listed with C. Derbes Smith, Inc. Smith signed the purchase agreement (offering to sell) on January 10, 1979, and Timmerman’s agent (accepting the offer in his behalf) signed the purchase agreement on January 12, 1979. Timmerman agreed to pay $325,000 for the property, subject to his ability to borrow $200,000. The act of sale was to be passed no later than April 1, 1979. The seller was to pay a 10% real estate commission, which was to be split, 5% to C. Derbes Smith, Inc., and 5% to Investors Swayze, McLaughry Realtors (I.S.M.).

Pursuant to the agreement, Timmerman’s agent, Jean Van Brunt of I.S.M., gave Mrs. Smith (C. Derbes or Cynthia Derbes Smith of C. Derbes Smith, Inc.) a check for $10,000 and a promissory note for $15,000 which served as a deposit for the property in question. The check was deposited in the escrow account of C. Derbes Smith, Inc.

As the time for executing the sale drew near, Mr. Timmerman had been unable to secure financing from a lending institution. According to Mr. Smith he was asked by Mrs. Smith if he thought his firm, Slidell Associates, would “take any of the paper on it or do some of the financing.” Smith testified: “And I said I thought that we would. We certainly would like to discuss it with them, with Mr. Timmerman, if his group were having problems. I don’t recall whether I talked to Miss Van Brunt about it personally or not.” In response to a specific question, Mr. Smith asserted that he, as general partner of Slidell Associates, agreed to provide financing if Mr. Timmer-man could not get it from another source. No precise time frame was elicited as regards the conversation or the commitment. On March 2,.1979, Mrs. Smith wrote a letter to Mrs. Van Brunt concerning the purchase agreement and in which she stated:

“This is to confirm our conversation of yesterday (2/28/79) and your conversation with Bob Smith Monday (2/26/79), .stating the above mentioned contract is still valid. The Purchasers have financing or the Sellers have agreed to hold a first mortgage if necessary.”

Thereafter, by letter dated March 23rd, Mrs. Elaine Guillot, attorney and notary for Mr. Smith, notified Timmerman the purchase agreement expired on April 1st and since that date was a Sunday, the sale would have to close by Friday, March 30th. She advised him that unless he made other arrangements prior to March 30th, Slidell Associates (the titular owner) would be ready to pass title to him at 5 P.M. on that date, the sale to take place in her office.

At the appointed time the parties met in Mrs. Guillot’s office. According to Mrs. Smith she remained in .her nearby office waiting to be called when all documents were ready. Mrs. Guillot had prepared for the occasion an act of cash sale, a document entitled “Tender of Title” which contemplated the nonappearanee of Mr. Timmer-man, and an “Extention Agreement,” the latter purporting to extend the time for closing the sale until April 6, 1979. None of the documents were ever signed and, noticeably, no mortgage or other loan document had been prepared for execution in conjunction with the proposed transaction. After some delay the parties confected several other purchase agreements whereby Timmerman was to acquire certain properties and then exchange these properties for the 5.05 acres. The new purchase agreement which pertained specifically to the 5.05 acres recited the previously agreed upon consideration, to-wit, $325,000, and provided for the same real estate commission to be paid to the same parties. This proposed transfer of the 5.05 acres was made contingent upon the acquisition of the other properties by Timmerman and further provided: “This agreement supersedes contract dated January 10, 1979.”

On April 26, 1979, the parties met and executed the act of exchange. Mrs. Smith had submitted a statement showing a commission due C. Derbes Smith, Inc. in the amount of $16,250. The statement noted a credit for the $10,000 deposit which the firm had previously received and indicated a balance due of $6,250. At the time, Mr. Timmerman expressed his concern about the return of his $10,000 deposit, obviously not conceding that he owed the commission. Mr. Smith acknowledged it was the seller’s obligation to pay the commission. He had previously sought to furnish a promissory note for the commission as evidenced by a message Mrs. Smith sent him on April 25th in which she stated her attorney had advised her not to accept a note. Notwithstanding her position, Mr. Smith provided the closing attorney with a promissory note payable to C. Derbes Smith, Inc. for $16,-250, signed by him for Slidell Associates. In addition, Mr. Smith, in a sworn statement, declared he had paid by virtue of the note all commissions due C. Derbes Smith, Inc. arising from the act of exchange.

Following the act of exchange a demand was made upon Mrs. Smith for the return of the $10,000 deposit. Through counsel, she advised the $10,000 in her escrow account was to be used in partial satisfaction of the commission. Counsel then stated: “If it was the intention of the parties that the purchasers were not to put up any cash money in this transaction, then it should be the responsibility of the sellers to provide for payment of the real estate commission in cash.”

On June 8, 1979, Mrs. Smith caused to be transferred out of the escrow account and into her firm’s general account the $10,000 deposit. She testified this action was taken by her both as president of her corporation and individually as the qualifying broker for the firm. Mrs. Smith acknowledged the funds were used ultimately as operating expenses, including payments to her for her salary and other remuneration. None of the funds, she testified, had been paid to Mr. Smith.

Failing in his efforts to recover his deposit, Timmerman filed this lawsuit against C. Derbes Smith and C. Derbes Smith, Inc. He seeks the return of his deposit and as a security measure obtained a writ of sequestration pursuant to which the trust account of C. Derbes Smith, Inc. was seized to the extent of $10,000. Defendants answered and a reconventional demand was asserted by C. Derbes Smith, Inc. in which it was alleged Timmerman breached the buy-sell agreement of January 10, 1979, and was therefore obligated to pay the commission. Plaintiff-in-Reconvention thus sought judgment against Timmerman for $6,250 claimed to be still owed on the commission. Mrs. Smith filed a motion for summary judgment contending she had no personal liability. An extract of the minute entry pertaining to a hearing on the motion shows that same was denied. The individual liability of Mrs. Smith was one of the issues contested at trial.

In written reasons for judgment the trial court stated:

“It is the conclusion of the Court that the January 10, 1979, contract was a viable agreement between Timmerman and Smith, and that title was tendered by Smith to Timmerman. This conclusion rests on the foundation provided by the March 23, 1979, letter from Attorney Guillot instructing the parties to appear in her offices on March 30, 1979, for passage of the act of sale, and further, by the fact that the parties did appear at her offices at the appointed time.
“Further, the evidence clearly establishes that on March 30, 1979, the purchaser and seller agreed to rescind or set aside the January 10, 1979, agreement to purchase and sell, and substitute in its place an agreement to exchange properties.”

Stating the law to be that an agent is entitled to collect his commission from the purchaser under a buy-sell agreement in the event the purchaser breaches the agreement or agrees with the seller to rescind the contract, the court announced its intention to render judgment in favor of C. Derbes Smith, Inc. and against Timmerman in the sum of $6,250, plus attorney fees in the sum of $3,000. Additionally, the court reasoned the writ of sequestration would be recalled, vacated and set aside as a consequence of plaintiff’s petition being dismissed.

Because we disagree with the conclusion of the trial court that the January 10, 1979 contract was a viable agreement between Timmerman and Smith, the breach of which, or agreement to rescind, giving rise to liability on the part of the buyer for payment of a commission, we reverse. In so doing we find it unnecessary to address the validity of the stated rule of law, as applied to the facts of this particular case. Further, we pretermit a consideration of the correctness of the trial court’s factual determinations that on March 30th Smith tendered title to Timmerman, Timmerman breached the agreement, and it was the intent of the parties to “rescind or set aside” the agreement.

Of determinative value are the following provisions of the purchase agreement:

“This sale is conditioned upon the ability of purchaser to borrow upon this property as security the sum of $200,000.00 by a mortgage loan or loans at a rate of interest not to exceed 12% per annum, interest and principal payable in equal monthly installments over a period of not less than 20 years. Purchaser obligates self to make good faith application for required loan(s) immediately but in no event later than 10 days of date of acceptance of offer.”
“Should purchaser, seller or agent be unable to obtain the loan stipulated above within 45 days from acceptance hereof, this contract shall then be null and void and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan, subject to approval of title, shall constitute obtaining of loan.” (Emphasis supplied by the court.)
“If this offer is accepted, seller agrees to pay the agent’s commission of 10% of gross sales price which commission is earned by agent when this agreement is signed by both parties and when the mortgage loan, if any, has been secured." (Emphasis supplied by the court.)
“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights.”

It is well settled that an agreement to purchase an immovable, conditioned upon purchaser’s ability to obtain a stipulated loan to finance the purchase, is a contract subject to a suspensive condition. If the purchaser, through no fault of his own, is unable to obtain the loan, he is released and entitled to the return of his deposit. Conversely, if the purchaser fails to complete the agreement due to his lack of good faith and seeking the stipulated financing, the real estate broker is entitled to recover his commission from him. Dapremont v. Crossley, 367 So.2d 127 (La.App. 4th Cir. 1979), writ denied 369 So.2d 710 (La.1979); Wells v. Spears, 255 So.2d 215 (La.App. 1st Cir. 1971); Landry & Passman Realty, Inc. v. Keen, 170 So.2d 775 (La.App. 1st Cir. 1964); Treadaway v. Piazza, 156 So.2d 328 (La.App. 4th Cir. 1963).

The agreement at issue was confected as of January 12, 1979, the day Mrs. Van Brunt, acting for Timmerman, accepted Smith’s offer. Timmerman had forty-five days from January 12th within which to obtain the stipulated financing. This period of time expired on February 26th. A careful study of the evidence clearly demonstrates Timmerman, aided by Mrs. Van Brunt, made a good faith effort to obtain the financing. Timmerman testified: “The terms of the agreement had not been reached because in forty-five days financing had not been secured. I continued to look for financing on the property, which was not available.” As regards his appearance in the notary’s office on March 30th, Timmerman explained:

“I went there, the occasion was the act of sale. I went there to the act of sale that was set for the piece of property. The financing contingency had not been met. I didn’t expect to take title to that piece of property that day for that reason. I went there and Mr. Smith and myself negotiated an exchange which took the place of that agreement. No one was ever put into default.”

In further explanation of his situation on March 30th, Timmerman, when asked if it was true he was not prepared to take title on that day, responded: “That is correct. I didn’t have the loan.” The court’s appreciation of Timmerman’s testimony at that point in the trial was:

“I think the witness has pretty well gone into the factual basis that surrounded his going to Ms. Guillot’s office that day. As I understood it, that was the day the act of sale was set for, he went there although at the time he went he did not think in his own mind that the act of sale would be passed because there was still outstanding the financing contingency and it was at that act of sale or at Ms. Guillot’s office, not necessarily at the act of sale that the subsequent agreements were negotiated. I think that is what he said and I don’t think if we stay here all day he is going to veer far away from that.”

Following which Timmerman stated: “That is correct.”

No one questioned Timmerman’s assertion that although forty-five days had elapsed he continued to seek financing. And, there is no contradictory evidence in the record. There is, however, evidence corroborative of his efforts to obtain a loan. Mrs. Van Brunt was questioned as to her actions following her receipt of Mrs. Smith’s letter of March 2nd which made reference to the seller’s agreeing to hold a first mortgage, if necessary.

“Q. Didn’t you assume that the financing referred to in the letter would be on the same terms as the financing set out in the purchase agreement, P-1?
A. I don’t remember, I don’t know— Mr. Timmerman was attempting to get financing at other institutions. ...”

At another point in her testimony, Mrs. Van Brunt stated:

“I had at the time that I was attempting to help Mr. Timmerman acquire the financing I had gone to the lending institutions there in Slidell and had taken financial statements to the particular lending institutions. At that particular point I did not know if Mr. Timmerman had acquired financing in New Orleans or if there was financing, and I don’t know why I didn’t call her and call Mr. Smith or Mrs. Smith to determine the rate or the amount of financing.”

From the above, there is no reason to doubt the purchaser in this case made a good faith effort to obtain a loan, both before and after the forty-five day period had expired.

It is the contention of appellees that the seller’s offer to provide financing fulfilled the contingency in the purchase agreement and the purchaser’s failure to take title to the property obligated him to pay the real estate commission. However, unless this offer was communicated to the purchaser within the forty-five day period it was to no avail. The explicit terms of the agreement rendered it null and void at the end of February 26th, 1979, and an offer thereafter to finance could not breathe life back into the document. We find nothing in the record to establish the offer was even made prior to the expiration of forty-five days, i.e., prior to midnight, February 26th. At most, there may have been a conversation between Mr. Smith and Mrs. Van Brunt on February 26th. Mrs. Van Brunt could not recall such a conversation and Mr. Smith was uncertain as to whether or not he talked to Mrs. Van Brunt personally. Even assuming a conversation took place in which an offer to finance was made, there is no evidentiary intimation the offer was made on the same terms and conditions stipulated in the purchase agreement. To be effective the offer would have to be on the same terms and conditions and communicated to Timmerman before February 27th. Certainly, the letter of Mrs. Smith dated March 2nd, which referred to a conversation between Van Brunt and Mr. Smith on February 26th, is no proof of an offer to finance on the same terms and conditions as specified in the purchase agreement. It is not even proof the conversation took place. And, assuming the requisite offer was made on February 26th, there is no contention it was communicated to Timmerman the same day. To the contrary, it is clear from the evidence Timmerman was not contacted until after the letter of March 2nd relative to the seller’s offer to hold a first mortgage on the property. Mrs. Van Brunt testified:

“When I received that letter I called Mr. Timmerman and told him the letter — I read the letter to him and told him that the letter was there. Mr. Timmer-man was to make his assumptions about the financing or how he was to be able to accept it.”

In the case of Burdon v. Harvey, 385 So.2d 514 (La.App. 4th Cir. 1980), the court was called upon to interpret the identical contractual provisions we now have before us. The facts of that case are strikingly similar to those of this case. In Burdon, the court held that by continuing their efforts to obtain a loan after the stipulated forty-five days expired, the purchasers did not waive the suspensive condition which provided the contract would become null and void. It also held any offer by the sellers to finance within the forty-five day period was not binding upon the purchasers unless it was under the terms and conditions of the agreement. Still further, the court held that even where the sellers offered to finance within forty-five days under the terms and conditions listed in the agreement, to bind the purchasers the offer had to be communicated to them within the forty-five day period. Finding that this was not done the Burdon court ordered the return of the purchasers’ deposit. We find Burdon to be dispositive of the issues before us. The purchase agreement between Smith and Timmerman was no longer in effect after February 26, 1979. Accordingly, it cannot serve as the basis for the award of a broker’s commission.

There is no contention by appellees that a commission is due from appellant by virtue of the subsequent agreement of March 30, 1979. We recognize appellee, C. Derbes Smith, is a third party beneficiary of that contract. La.Civ.Code art. 1902. However, no action has been brought against Mr. Smith pursuant to that contract and we therefore cannot address any liability he may have flowing from the agreement. As to Timmerman, it is obvious its terms preclude any liability for a commission.

The secondary issue of whether or not Mrs. Smith should be held personally liable in this case must be resolved against her. In addition to the liability of the corporate entity, C. Derbes Smith, Inc., which received and disbursed the $10,000 deposit, Mrs. Smith is liable because of her breach of the fiduciary duty she owed Timmerman. This fiduciary duty arises from her licensed position as a real estate broker and was breached by her act of transferring his deposit from the escrow account and using it for general operating expenses, including her salary.

In Burdon v. Harvey, supra, it was stated at page 517:

“The Civil Code states that a broker is an agent for both parties, having a duty towards both, and is answerable for his fraud or fault. LSA-C.C. arts. 3016, 3017, 3018;3 Uhlich v. Medallion Realty, Inc., 334 So.2d 788 (La.App. 4th Cir. 1976), writ denied 338 So.2d 701 [(La.1976)]. On the other hand, there is some disagreement whether a real estate broker is truly within the purview of the mandate articles of the Civil Code. See Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 629 [(La.1975)]; Fleming v. Romero, 342 So.2d 881 (La.App. 3d Cir. 1977), writ refused 345 So.2d 50 [(La.1977)]; Yiannopoulos, ‘Brokerage, Mandate, and Agency in Louisiana: Civilian Tradition and Modern Practice,’ 19 La.L.R. 777 (1959) which suggests brokerage is a sui generis contract which may or may not coincide with the agency and mandate articles. The line of cases following that idea states that ‘the real estate broker’s duties are limited to those which can be analogically drawn from LSA-R.S. 37:1354 and from the customs and practices of real estate brokers in general.’4 Fleming v. Romero, supra, at 884; see also, Leggio v. Realty Mart, Inc., supra, and Amato v. Latter and Blum, Inc., 227 La. 537, 79 So.2d 873 (1955).”

See also, Gallioto v. Trapani, 238 La. 625, 116 So.2d 273 (1959), wherein, at p. 275, it was stated:

“It is manifest from the very nature of the transaction entered into in this instance that the realtor was acting in the capacity of a broker to bring the prospective purchaser and owner together and thus became their joint agent. Acting in the dual capacity the realtor was bound and obligated to treat them with equal fairness, fidelity and trust.”

In the instant matter it is immaterial whether we use the codal articles as the foundation for the fiduciary duty owed by Mrs. Smith or whether we invoke the duties imposed upon her by the Louisiana Real Estate License Law (La.R.S. 37:1431 et seq.) as a basis for the duty. The result would be the same.

La.R.S. 37:1455 sets forth the causes for suspension of a real estate broker’s license. Among these is the failure of the broker to maintain and deposit in a separate account all money received as an escrow agent in a real estate transaction unless all parties having an interest in the funds have agreed otherwise in writing; and, the violation of any rule or regulation promulgated by the commission in the interest of the public. Among the rules adopted by the Louisiana Real Estate Commission is § 15.8 of 11-15:15 dealing with escrow accounts. It provides:

“Monies received and deposited in escrow (trust) accounts or rental trust accounts shall be transferred to the personal account of the broker only upon being earned and with the consent of the owner of the funds, or by court order.”

It is also noted a real estate broker’s license cannot be granted to a corporation unless the corporation designates only one qualifying broker who owns a substantial interest in the corporation and who shall represent the corporation. See Rule 11-15:28. It is clear the intent of the law is to impose upon an individual, not a corporation, the public trust inherent in the position of real estate broker.

The fairly recent case of Avegno v. Byrd, 377 So.2d 268 (La.1979), is ample authority for imposing personal liability in this matter. In Avegno, our Supreme Court held (p. 273): “Where the rules governing the profession create a duty in favor of the public, a breach of that duty to the damage of a member of the public, within the class sought to be protected by the rule, is actionable under Article 2315 of the Civil Code just as is any other act that causes damage to another.”

Accordingly, the judgment of the district court is reversed and it is hereby ordered, adjudged and decreed that there be judgment in favor of Michael M. Timmerman, and against C. Derbes Smith, individually, and C. Derbes Smith, Inc., in solido, for the sum of $10,000, plus legal interest thereon from date of judicial demand, until paid, and for all costs of court incurred at both the trial and appellate levels.

It is further ordered, adjudged and decreed that the writ of sequestration previously issued herein be maintained; and that the reconventional demand of C. Derbes Smith, Inc. be dismissed.

REVERSED AND RENDERED.

      . Robert T. Smith is the general partner of Slidell Associates and of PDRS Properties, partnerships in commendam; and, was at one time married to Cynthia Derbes Smith. On January 10, 1979, Slidell Associates was the actual owner of the 5.05 acres. On April 26, 1979, Slidell Associates conveyed the property to PDRS Properties which, in turn, conveyed title to plaintiff pursuant to an Act of Exchange.

      . Robert T. Smith is also a licensed real estate agent and was at times pertinent hereto under contract with “Cynthia Derbes Smith d/b/a C. Derbes Smith, Inc.” as an “Associate” and was admittedly entitled to at least 30% of the commission for having listed the property with C. Derbes Smith, Inc.

      . Mrs. Van Brunt testified she did not remember a conversation with Mr. Smith or Mrs. Smith concerning financing although she admitted such conversations could have taken place.

      . Mrs. Smith testified she made a phone call to Mrs. Guillot asking her to prepare a tender of title.

      . The judgment signed by the court, perhaps inadvertently, decreed the award to be in favor of “plaintiff in reconvention, C. Derbes Smith." Plaintiff-in-Reconvention was, of course, the corporate entity, not Mrs. Smith individually.

      . The court noted Mrs. Smith had violated the real estate commission rules by transferring the deposit from the escrow account to her operating account but that this violation had no bearing on the buyer’s responsibility to pay the commission.

      . On balance, the evidence in this case establishes the fact that an act of exchange had been discussed by the parties previous to the meeting of March 30th.

      . For another case in which the identical contract clauses were presented to the court, see Williams v. Bel, 339 So.2d 748 (La. 1976). Interestingly, a commission was denied therein even though the suspensive condition was met, the court holding it was not the common intent of the parties that a commission be paid where unusual circumstances later developed.

      . Nor could it serve as the basis for a novation, as contended by appellant. There was no existing obligation on March 30th, 1979. The parties could not, therefore, agree to extinguish it and substitute a new one in its place. La.Civ. Code art. 2185.

      . We deny appellant any entitlement to attorney fees. The purchase agreement does not provide for attorney fees in this instance. Also, see Lanusse v. Gerrets, 357 So.2d 45 (La.App. 4th Cir. 1978).


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Eric B. SETTOON, Jr. v. Vicki Storer SETTOON.
    No. 14685.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Michael E. Parks, D’Aquila & Parks, New Roads, for plaintiff-appellant.

      James C. Dewey, Olinde, Dewey & Spe-dale, New Roads, for defendant-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Plaintiff comes before this Court seeking the review of a judgment of the trial court ordering the cancellation of a notice of lis pendens which was filed by plaintiff, Eric B. Settoon, Jr., on certain immovable property owned by defendant, Vicki Storer Set-toon, situated in Waterloo Acres Subdivision, Part II, Second Piling, in the Parish of Pointe Coupee, State of Louisiana.

The lis pendens was filed against the subject property when the plaintiff instituted a suit against his wife to obtain from her restitution of monies allegedly advanced by him from his separate estate to defendant, for use by her for the benefit of her separate estate in improving the subject property and in furnishing the house built on the subject property. The defendant denied the allegations, reconvened, and filed a rule, in the nature of a mandamus, to show cause why the lis pendens should not be cancelled. After hearing on the rule, the trial judge rendered judgment ordering cancellation of the lis pendens notice. We affirm.

It is only when the action affects the title to, or asserts a mortgage or privilege on, immovable property that the party claiming or asserting such right is entitled to file a notice of lis pendens. LSA-C.C.P. art. 3751. It is clear that plaintiff’s action, which is allegedly for reimbursement of the value of improvements placed on his wife’s property, does not affect title to immovable property, or assert a mortgage or privilege thereon. We find that the ease of Guillory v. Desormeaux, 179 So.2d 456 (La.App. 3 Cir. 1965), is decisive of this issue. We find nothing in the record from which it can be reasonably concluded that the plaintiff has met any of the requirements of LSA-C.C.P. art. 3751. Realsco v. Green Acres Civic Association, 169 So.2d 570 (La.App. 4 Cir. 1964).

There is also no merit to plaintiff’s contention, asserted for the first time in his brief on appeal, that he was subrogated to the rights of the creditor inasmuch as he has paid off the debt which was secured by the mortgage on defendant’s immovable property. There is neither allegation nor proof of any such claim in the record. The petition merely states that Mr. Settoon advanced monies to Mrs. Settoon which she used to acquire, and later improve, the subject immovable property. There are other irrelevant assertions pertaining to other advances. There is no allegation relating to payment of any mortgage or subrogation to any creditor’s rights. No witness testified at the hearing on the rule. The only reference to a mortgage came in argument to the trial court. Such reference is, of course, not evidence.

We find that plaintiff improvidently filed this notice of lis pendens when there was no lawful basis for doing so. Hence, we affirm the trial court’s judgment ordering its cancellation from the mortgage and conveyance records of the Parish of Pointe Coupee (Mortgage Book 130, Number 99 and Conveyance Book 199, Number 115), as it affects the following described property:

“A certain lot or ground, together with all rights, ways, privileges, servitudes and appurtenances thereunto belonging to in anywise appertaining, situated in WATERLOO ACRES SUBDIVISION PART II, Second Filing, in the Parish of Pointe Coupee, State of Louisiana, which said lot is shown and designated as Lot 41 on the official plat of survey of said subdivision made by Wallace J. Hargrave, C.E. & S., dated November 15, 1973, filed and recorded November 28, 1973, under Entry No. 141 of Conveyance Book 113 of the records of Pointe Coupee Parish, Louisiana.
“Said Lot 41 contains 1.90 acres and has a front of 190 feet on the East right-of-way limits of Bennett Drive by a depth in a general easterly direction of 435.75 feet on its north boundary and 438.77 feet on its south boundary and a width on its rear or east boundary of 190 feet, and is bounded, now or formerly, as follows: West by the East right-of-way limits of Bennett Drive, North by Lot 42 of said subdivision, property of Joseph Didier St. Clergy, Jr., East in part by Lot 53 of said subdivision, property of James L. Moore, and in part by Lot 54 of said subdivision, property of Francis Audley Smith, Jr., and South by Lot 40 of said subdivision, property of Paul R. Kendrick and Patsy Sue Doughty Kendrick.
“Said Lot 41 hereinabove described and herein sold is more fully shown and designated on the aforementioned plat of survey and subdivision to which plat reference is herein made for greater certainty of description.
“Being the same property acquired by vendor herein, Clarence Joseph Aillet, Jr. from Paul R. Kendrick and Patsy Sue Doughty Kendrick, by act of sale dated May 16, 1975, filed and recorded under Entry No. Ill of Conveyance Book No. 123 of the records of Pointe Coupee Parish, Louisiana.
“Said property hereinabove described and conveyed is sold, conveyed and accepted subject to the following:
“1. Reservation of an undivided one-half (V2) of all oil, gas and minerals in and under said property, made by Stephen Gray Langlois, et al in the act of sale to 104 West End Drive, Inc., dated October 27, 1972, filed and recorded under Entry No. 96 of Conveyance Book 107 of the records of Pointe Coupee Parish, Louisiana; said mineral interest being recited herein only as an exclusion from vendor’s warranty and not as an ac-knowledgement thereof, and not with the intention of interrupting of prescription of non-use thereon;
“2. All rights of way, servitudes and/or easements of record affecting said property; and
“3. All restrictions, covenants and building conditions as set forth and fully described in that certain authentic act establishing said WATERLOO ACRES SUBDIVISION (PART II), Second Filing, executed by 104 West End Drive, Inc., said act being dated November 27, 1973, filed and recorded under Entry No. 141 of Conveyance Book 113 of records of Pointe Coupee Parish, Louisiana.”

For the reasons assigned, we affirm at appellant’s costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Ernest W. HARTHCOCK, et al. v. Fillmore J. HURST and Elizabeth Anne New Hurst.
    No. 14686.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      John Wayne Jewell, New Roads, for plaintiffs-appellees.
    Walton J. Barnes, II, Zachary, for defendants-appellants.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action seeking an injunction brought by plaintiffs to require defendants, Fillmore J. Hurst and Elizabeth Anne New Hurst to restore an easement to its original condition by the removal of a boat house and flower bed bordered by railroad cross-ties that defendants had placed on the easement. Plaintiffs also sought damages for being forced to construct a new septic tank as they were prevented from cleaning and maintaining the original septic tank by miscellaneous equipment placed on the lid by defendants. The trial court granted the injunction sought by plaintiffs and rendered judgment in favor of one of the plaintiffs, Ernest W. Harthcock, in the sum of $500.00 as damages for interference with the use of the septic tank. We affirm.

The issues presented can be best understood by referring first to a plat of survey prepared by Daryl B. Patin, Registered Land Surveyor, and introduced at the trial as Exhibit P-1. This plat is based upon a survey made by Patin on July 16, 1974, and brought up to date on January 11, 1978. The plat is below reproduced.

By act of sale with mortgage dated July 17, 1974, Joseph N. Robillard conveyed to Ernest W. Harthcock and Alvin C. Kimble, two of the present plaintiffs (the other plaintiffs being Joseph Alexander Stott and Mrs. Nina Laverne Payne Stott), Lot G which bordered False River in Pointe Cou-pee Parish (which comprised the lots later divided into Lots G-l and G-2 as shown on the above plat of survey). Also conveyed was a servitude or easement of passage, which is shown on the above plat as “Existing Easement”, and which lies immediately to the east or east-north-east of Lot G. The servitude and the rules regulating the extent and use thereof are set forth as follows in the act of sale with mortgage.

“Vendor further declared that he is the owner of the lot of ground shown on the attached plat of survey immediately to the east of said Lot G herein conveyed, which lot has a front of 24.70 feet on the northerly right of way limits of La. Highway No. 413 by a depth to False River and a width on False River of 30.10 feet, and that, in further consideration of the purchase price paid to him by purchasers herein, he hereby grants unto purchasers, their heirs and assigns, a perpetual easement over and across said lot of ground for purposes of passage. Said easement shall not be exclusive to purchasers, however, and vendor reserves the right to use said lot as he sees fit and to grant to any other persons the right to use said lot as long as said use does not interfere with the easement granted to purchasers herein. Vendor will not be responsible for damages of any sort to any persons or property on said lot, however occasioned, and purchasers shall hold vendor harmless from any claims by or liability to third persons however arising on said lot when their presence on said lot is derived by permission of purchasers.”

The act of sale with mortgage was duly recorded in the conveyance records of Pointe Coupee Parish.

The act of sale with mortgage also conveyed to the vendees the use of a septic tank partially situated on the property of vendor, the lid of which was located on the easement. The language concerning the septic tank was as follows:

“The septic tank serving the camp described ‘Second’ herein is included in the present sale but it is partly situated on property of vendor. It is agreed by and between the parties hereto that should vendor, his heirs, or assigns, decide to move said septic tank, it shall be moved by vendor, his heirs or assigns at their expense to a location on property of purchasers agreeable to vendor and to purchaser.”

On August 17, 1976, Robillard sold by act of sale with mortgage to Fillmore J. Hurst and Elizabeth Anne New (now Hurst), the present defendants, Lots D, E, and F as shown on the plat of survey.

By cash sale dated January 17, 1978, Ernest W. Harthcock, Mrs. Hilda LeBlanc Harthcock, Alvin E. Kimble, and Mrs. Patricia Mayeaux Kimble sold Lot G-l to Joseph Alexander Stott and Mrs. Nina Laverne Payne Stott, the vendors retaining Lot G-2.

At some later time the Hursts laid a flower bed surrounded by railroad crossties partly on their own property and partly on the easement. They also built, entirely on the easement, a boat house, near the bank of False River, so that it was impossible for the Harthcocks and Stotts to launch boats into False River from the easement. Also, the portion of the flower bed which lay on the easement interfered with use of the easement by the Harthcocks and Stotts.

The Hursts concede that the Stotts and Harthcocks hold an easement, but contend that the easement exists only to permit entry onto the rear portion of Lot G from the highway, and was not intended to grant access of boats and boat trailers to False River for launching purposes.

However, we see the plat of survey shown above which is similar to the plat of survey annexed to the act of sale with mortgage for Robillard to Harthcock and Kimble, clearly shows the easement as extending to the water’s edge, and as being 24.7 feet in width along Highway 413, and 30.1 feet in width at the water’s edge. Clearly, the purpose of the easement was to permit passage to the water’s edge as well as to the portion of Lot G abutting the water. (It will be remembered that the act of sale with mortgage which created the easement conveyed to Harthcock and Kim-ble the whole of Lot G.) It would be senseless to grant an easement extending to the water’s edge if the purpose of the easement was not to grant access to the water.

Furthermore, it was held in Clause v. Broussard, 146 So.2d 828 (La.App. 3d Cir. 1962), that if a servitude of passage is granted by boundaries, the right to use the servitude extends to the limits of the boundaries. It is quite true, as appellants point out, that in the present case, unlike Clause, the owners of the servient estate reserved the right to also use the lot as he saw fit, “so long as said use does not interfere with the easement granted to purchasers herein.” The extent and mode of exercise of a servitude of passage may be regulated by the title establishing the servitude. LSA-C.C. art. 705. However, as we have seen, the boat house and portion of the flower bed placed on the easement interfered with the use of the easement and so violated the very language quoted. The Hursts may use the easement, but only so long as they do not interfere with the use of the easement to the boundaries thereof by the owners of the dominant estate.

With regard to the septic tank, Harthcock and Stott were granted an unqualified right to its use. When Harthcock attempted to open the lid of the septic tank, which was located near the boat house, he found assorted odds and ends of equipment on top of the lid. He attempted to talk to Mr. Hurst but Mr. Hurst refused to speak to him. It was stipulated at the trial that if a plumber, Mr. Camille LeJeune, had been called to testify, he would have testified that he had gone to the premises and found the septic tank was full of water. The septic tank needed to be pumped out periodically, and it is apparent from the stipulated testimony that this had not been done. The obvious reason the septic tank had not been pumped out was that Harthcock was prevented from opening the lid by the debris on top of the tank in the vicinity of the boat house. As Harthcock was forced to build a different septic tank on his own lot, and as the original septic tank was conveyed to him by the act of sale with mortgage from Robillard to Harthcock and Kim-ble, and as Hurst wrongfully interfered with use of that septic tank, he is liable in damages.

The sum of $500.00, which was awarded, is a minimal amount which was clearly justified by the record.

Accordingly, the judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    G. Garner HALL v. MID-AMERICAN CASUALTY COMPANY.
    No. 14700.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      G. Garner Hall, in pro. per.
    Brent E. Kinchen, Baton Rouge, for defendant-appellee.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CHIASSON, Judge.

Mrs. G. Garner Hall appeals the judgment of the City Court of Baton Rouge which ordered the defendant-appellee, Mid-American Casualty Company, to pay Mrs. Hall $326.18 in property damages sustained in a minor vehicular collision and condemned Mrs. Hall to pay all court costs.

This suit was litigated without counsel. Mrs. Hall represented herself and appellee was represented by Mr. Charles Zachariah, a claims adjuster. They were the only two persons who testified in the case.

On May 30, 1978, Mid-American’s insured backed into Mrs. Hall’s unoccupied, parked car causing damage to the left side of her automobile. The damage to her car was estimated at $251.22 by appellee’s appraiser, Underwriters Adjusting Company. The two appraisers for appellant estimated the damages at $326.18 by Fact-O-Bake and at $327.54 by Instant Body Shop.

It appears that appellee received the estimate from its appraiser about five days after receipt of the notice of loss. On that same day, a settlement check was mailed to Mrs. Hall. Mrs. Hall wrote Mid-American the following February advising it of her dissatisfaction with the payment and Mid-American responded that if necessary, it would reinspect her vehicle at the repairing facility of her choice.

Mrs. Hall filed suit by letter seeking $500.00 plus court costs and judicial interest. This sum “... represents the cost of having my car repaired and of providing for substitute transportation.” Mrs. Hall alleges that Mid-American has agreed to pay for the damage to her car, but her claim has not been satisfactorily settled. Additionally, Mrs. Hall alleges that Mid-American Casualty Company has not acted in good faith.

The court, after hearing the testimony of both witnesses, found that Mid-American made all of the efforts required by it to satisfy this claim and rendered judgment in favor of Mrs. Hall in the amount of $326.18. The court denied Mrs. Hall’s request for damages allegedly sustained as a result of her having to provide substitute transportation, stating that such was not made part of her petition and that there was no proof adduced on that point and ordered Mrs. Hall to pay all court costs.

On appeal, Mrs. Hall, in proper person, argues that the trial court erred in finding that Mid-American negotiated in good faith, in ordering her to pay court costs, and in not allowing her money for substitute transportation. Mid-American contends that it made every effort to conclude this claim to the satisfaction of Mrs. Hall, but that she failed to provide any cooperation.

With regard to the cost incurred in having to provide substitute transportation, we find the trial court erroneously stated that such was not made a part of Mrs. Hall’s petition and that no evidence was adduced on this point. Mrs. Hall is entitled to receive compensation for loss of use of her automobile. Plain v. Refrigerated Transport Company, Inc., 393 So.2d 367 (La. App. 1st Cir. 1980), and the cases cited therein.

In that case, we held that a fair measure of damages for loss of use is the rental value of similar property. We find that it was Mr. Zachariah who stated that the rental value of a car for one day is fifteen dollars. There is no proof that it would take more than a day to repair the damages. Therefore, we hold that Mrs. Hall is entitled to an increase in her award from $326.18 to $341.18.

Code of Civil Procedure Article 1920 provides that “.. . the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

The trial judge has great discretion in assessing costs, but the general rule is that costs are to be paid by the party cast in judgment. La.C.C.P. art. 1920; Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1st Cir. 1981); Gholar v. Security Insurance Company of Hartford, 366 So.2d 1015 (La.App. 1st Cir. 1978).

Because we find that Mrs. Hall is entitled to judgment for damages to her vehicle and for loss of use thereof, costs in the trial and appellate courts are to be paid by defendant-appellee.

AMENDED IN PART, REVERSED IN PART AND RENDERED.


author: COLE, Judge.

text:
    In the Matter of the SUCCESSIONS OF F. Grady MACK and Mary Purvis Mack.
    No. 14704.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Curtis K. Stafford, Jr., Baton Rouge, for plaintiffs.
    Davis A. Gueymard, Baton Rouge, for defendants.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented is whether or not plaintiffs have proven certain property was donated to defendant, Nellie Mack Blount, so that they are entitled to collate the property back into the succession of their mother.

F. Grady Mack died intestate in Livingston Parish in November 1948. He was survived by his wife, Mary Purvis Mack, and four children: Melissa Mack Linder, J. D. Mack, Prestley Mack and Nellie Mack Blount. An undivided interest in certain real property located in Livingston Parish was inherited by the children, the remaining portion being the community interest of Mary Purvis Mack, their mother. Mr. Mack’s succession was not opened until 1977, after his wife’s death.

On July 28,1951, Mary Purvis Mack, Melissa Mack Linder, J. D. Mack and Prestley Mack executed an act of cash sale whereby they effected a sale of their interest in the tract of land to Nellie Mack Blount and her husband, Columbus Blount, for a stated consideration of $1,000. The property was described as follows:

“A certain tract of land containing 90 acres of land more or less, and being the South 14 acres of the SE XA of SW Vi of Section 4, T6S, Range 5 East, and the NE XA of NW XA, and N xh of SE XA of NW XA, and all the land in North 30 acres of NW XA of NW XA lying East of a certain Gravel Highway, know (sic) as Doyle North Gravel Highway, lying and being in Section 9, T6S, Range 5 East, and being a part of the F. Grady Mack Estate, and being a portion of that land described in CB 63 page 404, 58, page 266, 58 page 169, 57 page 458, 56 page 403 and 42 page 595, and 15 page 531, of the Livingston Parish Public Records, LESS one acre tract previously reserved and dedicated as a cemetary. With all buildings and improvements thereon.”

Mrs. Mary Purvis Mack died intestate February 18, 1977, and several months later Melissa Mack Linder was appointed admin-istratrix of the successions of F. Grady Mack and Mary Purvis Mack.

On March 22, 1978, plaintiffs (the heirs-vendors named above) filed suit against Nellie Mack Blount and Columbus Blount alleging the sale to them of Mrs. Mack’s undivided interest had been a donation in disguise, that the value of the donated land exceeded the disposable portion of Mrs. Mack’s succession, and therefore under La. Civ.Code art. 2444 they as heirs were entitled to a collation or reduction so as to bring the property back into the succession of Mary Purvis Mack.

This case has been before this court on two previous occasions. When first filed in the trial court, defendants obtained a judgment on the pleadings. We reversed and remanded. Succession of Mack, 366 So.2d 1063 (La.App. 1st Cir. 1978). Defendants then obtained a summary judgment, which we also reversed. Succession of Mack, 392 So.2d 122 (La.App. 1st Cir. 1980). The trial court then heard the merits of the case and once again ruled against plaintiffs and in favor of defendants. We now affirm the judgment of the trial court.

La.Civ.Code art. 2444 reads as follows:

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

Three expert real estate appraisers testified at trial as to the value of the property at the time of the sale in 1951. Defendants’ experts were James Maxwell and James Carpenter who estimated the land to be worth $20 and $29 an acre, respectively. Plaintiffs’ expert, Kermit Williams, valued the property at $45 an acre. All three used various comparable sales in the area. In oral reasons the trial court rejected the $20 an acre figure, accepted the other two figures as “reasonable,” averaged them, and arrived at the figure of $37 an acre. It found the land to be worth a total of $3,390 (90 acres at $37 an acre). Since one-fourth of $3,390 is $847.50, the $1,000 paid was well over one-fourth the value of the land. Therefore, plaintiffs’ suit was dismissed.

Plaintiffs contend the trial court abused its discretion in “averaging” the two appraisals to arrive at the $37 an acre. The trial court is granted a great deal of discretion in determining the value of land in expropriation cases [see State, Through Dept. of Highways v. Devall, 405 So.2d 1173 (La.App. 1st Cir. 1981)]. This discretion applies to any case where the value of real estate is at issue. We find no manifest error in the court’s handling of the property valuation.

This is not a case where the trial court simply took all three figures and arbitrarily averaged them to arrive at a value. The court totally disregarded Mr. Maxwell’s estimate as being too low and then examined the remaining two. It noted both experts were well qualified and both had presented “reasonable” figures. It declined to accept Mr. Williams’ $45 an acre figure because of “public knowledge” that this land was subject to flooding, a factor Mr. Carpenter considered but Mr. Williams did not. Further, the court may have been impressed by .testimony indicating the timber was cut prior to the sale. Mr. Carpenter evaluated the land as having no marketable timber while Mr. Williams considered it to have had at least some such timber. Under these circumstances, we find no abuse of discretion in the trial court’s method of arriving at a value for the property.

Even if we agreed with plaintiffs that the trial court abused its discretion and should, have accepted Mr. Williams’ estimate of $45 an acre, plaintiffs’ claim cannot be maintained. At the death of her father in 1948, Nellie Mack Blount, by operation of law inherited at least one-eighth (one-fourth of her father’s one-half) of the property. La.Civ.Code art. 902. Therefore, at the time she and her husband purchased the property they were only purchasing a seven-eighths interest because she already owned one-eighth. This undivided interest equates to her owning 11.125 acres. Therefore, defendants paid $1,000 for 77.875 acres, or $12.84 an acre. Using the $45 an acre figure, one-fourth of $45 is $11.25. Defendants thus paid more than one-fourth the market value of the land rendering the claim under La.Civ.Code art. 2444 invalid.

Defendants also contend the property purchased was subject to a mortgage which materially decreased the appraised value and resulted in the price paid being considerably in excess of one-fourth of the net or real value. We need not address this contention, having decided to affirm on the grounds above discussed.

For these reasons, judgment of the trial court is affirmed. Appellants are to pay all costs.

AFFIRMED.

      . The correct amount of acreage is 89 because one acre was reserved for a cemetery. Also, 90 acres at $37 per acre amounts to $3,293, not $3,390. One-fourth of $3,293 is $823.25. The slight error in calculation is, therefore, immaterial.

      . She in fact inherited more than one-eighth because the property was partially the separate property of her father. But because the evidence did not indicate what percentage of the property was separate, we have treated it herein as totally community.

      . We are figuring this on the basis of 89 acres.

      .We recognize one of the defendant vendees was not a child of the decedent and, therefore, not subject to the provisions of article 2444 of the Civil Code. Likewise; three of the vendors were not conveying parents as envisioned by article 2444. This, however, does not alter treatment of the basic issue presented since the mathematical percentages would remain the same.


text:
    Doris SHERMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. Raymond B. SHERMAN, Sr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    Nos. 14705, 14706.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied May 17, 1982.

      Hobart O. Pardue, Jr., Springfield, for plaintiff, Doris Sherman.
    Larry Book, Baton Rouge, for plaintiff, Raymond Sherman.
    Horace Lane, Baton Rouge, for defendant, State Farm Mutual Auto Ins. and Sug-arland.
    James H. Morgan, III, Baton Rouge, for defendant, Prudential Property and Cas. Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by defendant, State Farm Mutual Automobile Insurance Company, from the judgments in the two consolidated suits, in the first of which judgment was rendered in favor of Doris Sherman, plaintiff, in the sum of $53,750.00; and in the second of which judgment was rendered in favor of Raymond B. Sherman, Sr., plaintiff, in the sum of $38,750.00.

This appeal involves only an insurance coverage question. The trial court found that Brenda K. Eason, the driver of the Chevrolet pickup truck which crashed head-on into the Sherman vehicle in the Sherman vehicle’s lane of traffic, killing Raymond B. Sherman, Jr., was “negligent and her negligence was the sole and proximate cause of the accident;” and that Raymond B. Sherman, Jr., the driver of the Sherman automobile, “was not contributorily negligent.” The record establishes fault and proximate cause of the accident, and those issues in the trial court are no longer issues on appeal. Quantum is also not an issue.

To decide the insurance coverage question, the Court must decide who was the. owner of the pickup truck involved in the accident, on the day of the accident, October 20, 1979. As expressed by the trial judge: “The real question in this suit is the ownership of the pick-up truck.”

State Farm denied coverage to Brenda K. Eason on the ground that its policy did not insure the Chevrolet pickup truck she was driving at the time of the accident. The basis for its position is that the truck was sold to Calvin Eason, the father of Brenda Eason, in July of 1979 by Sugarland Homes, Inc., so that on the day of the accident, October 20, 1979, the owner of the truck was Calvin Eason, and not Sugarland Homes, Inc. The insurer contends that under the terms of State Farm’s policy issued to Sugarland Homes, Inc., on the Chevrolet pickup truck, the coverage lapsed when the ownership of the truck was transferred to Eason.

The facts on the issue of whether the truck was sold to, and thus, was owned by Eason in July (and at the time of the accident) come from the testimony (in court and by deposition) of Calvin Eason. The trial court stated:

“. .. The Court is of the opinion that no sale actually took place. The testimony of Mr. Eason was to the effect that he would have completed the sale if the balance at the bank was as stated. His intention seemed to have been to collect the money that Sugarland owed him. It appears that if Sugarland would have paid him in full and requested a return of the truck, he would have complied with their request. He was very definite about keeping the truck until his $3,000 was paid.” (Emphasis by the trial court.)

Thus, the trial court ruled that Brenda Eason was an omnibus insured under the State Farm policy, said policy not having lapsed. We agree.

The law is clear that the sale of a motor vehicle is governed by the Civil Code Articles relating to the sale of movables, and is not affected by non-compliance with the requirements of the Vehicle Certificate of Title Law, LSA-R.S. 32:701 et seq. See Scott v. Continental Insurance Company, 259 So.2d 391 (La.App. 2 Cir. 1972).

The three essential elements of a sale are the thing, the price and the consent. LSA-C.C. art. 2439. There must be a meeting of the minds of the parties as to the object to be sold and the price. The price must be certain and should be fixed and determined between the parties. LSA-C.C. art. 2464.

The record in the instant case reflects that Sugarland and Eason did not have a meeting of the minds as to price. Without a certain price there can be no sale. Both parties must agree on the thing and the price for a valid sale to be complete under LSA-C.C. art. 2456.

Whether or not a sale between Sugarland and Mr. Eason actually took place rests entirely on the testimony of Mr. Eason, as stated above, and the applicable law. Mark Falgoust, the president of Sugarland, did not testify, and all parties stipulated that if Mr. Falgoust had been called to testify on the facts and circumstances of the alleged sale of the pickup truck by Sugarland to Calvin Eason, his testimony would have been substantially the same as testified to by Mr. Calvin Eason in the latter’s deposition dated February 22, 1980, and by his testimony in court at the trial.

There is no documentation to support State Farm’s contention that a sale did take place.

Our examination of the record shows that Mr. Eason testified that his use of the truck was part of his employment agreement with Sugarland.

“Q. And during the period of time that you worked for them, did they furnish you anything for transportation?
A. Yes, they did.
Q.' And what was that?
A. A ’78 model Chevrolet truck.
Q. And during the time that you used the truck did members of your family also use it?
A. Yes, they did.
Q. Were you ever prohibited from allowing members of your family to use the truck by Sugarland?
A. None whatsoever.”

The furnishing of the truck by Sugarland to Mr. Eason continued after he had quit working for them as an employee, and was working as a subcontractor:

“A. They gave me a — -you see, at that time I had quit running work for them and I was doing subcontract work, dry wall work, and they owed me for doing dry wall.
Q. Did they still furnish you this truck?
A. They still furnished me the truck. That’s when the agreement came up that I would buy the truck.” (Emphasis added.)

In his testimony, Mr. Eason indicated that he was only keeping the truck because Sugarland owed him money, i.e., the truck was being held as security. In response to the question of whether or not he considered the truck to be his, Mr. Eason stated that if a man owed him $3,000.00 and he had his truck he was not going to return the truck until he was paid. Mr. Eason’s testimony on this point is as follows:

“Q. But after you ceased working for them you still considered it your truck, I assume.
A. Well, sure. Like I say, at the end of that time even when I quit working for them they still owed me this money and I’m not going to turn no truck back over to them. And they could have come paid me and said, ‘Well, I want my truck’, they could have got it if they hadn’t wanted me to have it. If they didn’t want to go to the bank and sign to let me have it that would have been fine.” (Emphasis added.)

Mr. Eason, in his testimony, indicated that while he and Sugarland had talked about purchasing the truck, no definite agreement had been reached. Mr. Eason testified that after the purported agreement in July, 1979, things went on for three or four weeks and no one knew what to do with the truck.

Mr. Eason also indicated that he was to buy the truck from Sugarland and assume the outstanding mortgage.

“Q. All right. And what was the agreement about the purchase of the truck?
A. Well, when we came to an agreement about buying the truck there was four of us, I believe, that knew about the truck agreement and that I was going to assume the notes on the truck....
Q. But if you would have bought the truck you were going to be credited some $3,000.00; is that correct?
A. Well, I would have been credited or we would have got everything straight and I would have assumed the balance of the truck, whatever the difference would have been.” (Emphasis added.)

The above testimony shows that no sale had taken place.

At the trial, Mr. Eason reiterated much of his prior testimony given by deposition, and left the impression that he was to buy the truck from Sugarland when he assumed the outstanding mortgage on it. Mr. Ea-son’s trial testimony also indicated that there was never an exact amount agreed upon and that neither he nor Sugarland knew the amount owed. Mr. Eason knew the amount of the old monthly payments, but did not know the name of the bank holding the mortgage. He also did not know the assumption figure; or, whether assumption would be allowed by the mortgage holder. The balance, or number of payments left, was indefinite.

From the testimony of Mr. Eason, we conclude, as did the trial court, that the parties had not entered into a contract of sale at the time of the accident. We reach this conclusion because of the uncertainty of a price, and the absence of consent or a meeting of the minds between Sugarland and Eason. We particularly find that the price was not capable of being ascertained by computation of definite facts; it can not be deemed certain in the present case.

Moreover, we find that certain suspensive conditions were not fulfilled, so that ownership was never transferred to the prospective buyer. LSA-C.C. art. 2471; Kershaw v. Deshotel, 179 So.2d 528 (La.App. 3 Cir. 1965).

The sale from Sugarland to Eason was not to take place until the bank allowed Eason to assume the mortgage or Sugar-land co-signed a note for Eason. Thus, the sale was suspended either until the bank allowed Eason to assume the note or until Eason secured new financing with Sugar-land being the co-maker on a new note. At no point during Mr. Eason’s testimony does he indicate that this was to be a cash transaction, nor does he state that the money owed to him by Sugarland was sufficient to pay off the outstanding mortgage.

In Kershaw v. Deshotel, supra, the Court recognized that pursuant to LSA-C.C. art. 2471, the sale of an automobile did not take place, because the sale was suspended until the purchaser’s credit was approved.

In Jackson Motors, Inc. v. Calvert Fire Insurance Company, 239 La. 921, 120 So.2d 478 (La.1960), the Louisiana Supreme Court found that a sale of an automobile did not take place even though the purchaser had signed a promissory note, an act of sale and chattel mortgage, and an application for title and license (VEH-1 form). The Court found that no sale had taken place because a suspensive condition, i.e., approval of financing, existed which was not fulfilled at the time in question.

The conclusion that the sale from Sugar-land to Eason did not take place fits the facts in the cited cases, as outlined above. There is no dispute that Eason secured delivery of the truck from the moment of his employment with Sugarland, and not from the moment of the alleged sale in July. It is clear from the testimony that Mr. Eason treated the truck no differently after July than he did before July. It is also clear that Mr. Eason made no payments on the truck, thus indicating he did not assume the outstanding mortgage. As far as Mr. Ea-son knew, the secretary at Sugarland continued to make the note payments. There was no testimony offered or evidence introduced to show that monthly payments were not still being made by Sugarland on the chattel mortgage on the truck or that Sug-arland was in default on said payments. Sugarland did not notify State Farm that the truck was sold, or to cancel coverage on that truck. Sugarland provided Eason with the truck while he was employed at Sugar-land, and while he was a subcontractor for Sugarland. The record does not reflect that there was any change in the relationships between the truck, Mr. Eason, Sugar-land or State Farm after July, 1979, as appellant would have this Court believe.

Counsel for State Farm argues that General Finance Corporation of New Orleans v. Harrell, 188 So.2d 211 (La.App. 1 Cir. 1966), is indistinguishable from the present case and, hence, controlling. We find that General Finance can be distinguished on at least two major points and is not controlling in the instant case:

(1) The Court in General Finance found that a sale took place, because of delivery of the automobile to the corporation and payment by the corporation of the notes due on the automobile after delivery: In the instant case, Eason had had possession of the car long before the purported sale in July, 1979, and he never made a payment (which Sugarland presumably continued to make).
(2) In General Finance there was evidence introduced from which a price could be computed or ascertained. In the instant case, the only testimony presented was that of Mr. Eason to the effect that he did not know the name of the bank holding the chattel mortgage, did not know the amount owed, did not know the number of payments which had been made and did not know the length of the term of financing. Without that information, the price can not be ascertained, as was done in General Finance. The ascertainment of price “by computation of definite facts” cannot be done in the instant case.

For similar reasons, Lessard v. Lessard Acres, Inc., 349 So.2d 293 (La.1977), and Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980) are distinguishable, and not controlling in the instant case.

Accordingly, we hold that State Farm has not carried its burden of proving that a sale took place, and has not shown that the trial court committed manifest error in finding coverage under its policy.

For the reasons assigned, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . The plaintiffs’ suits against Sugarland Homes, Inc. were dismissed, because there was no evidence that Brenda Eason was either an employee or agent of Sugarland Homes, Inc. at the time of the accident. The suits against Brenda Eason’s uninsured motorist carrier, Prudential Property and Casualty Insurance Company, were dismissed because the awards to plaintiffs were within State Farm’s liability limits.

      . In his brief, counsel for decedent’s father argues that the award to him should be increased to $50,000.00. However, he neither appealed nor answered the appeal to request such modification. Therefore, we cannot consider that item. LSA C.C.P. art. 2133.


text:
    Doris J. RYLE, Individually For the Use and Benefit of the Minor, Raymond DiJon Ryle v. C. R. POTTER, et al.
    No. 14708.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Howard M. Nugent, Jr., Alexandria, for plaintiffs-appellees Doris J. Ryle, Ind., etc.
    A. Clay Pierce, Jr., Baton Rouge, for defendants-appellants C. R. Potter, Mary G. Potter and Independent Fire Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for personal injuries sustained by a 10 year old boy, Raymond DiJon Ryle, brought by the boy’s mother, Doris J. Ryle, in her individual capacity and as the boy’s natural tutrix, against C. R. Potter and Mary G. Potter, parents of Billy Potter, also a 10 year old boy who was residing in his parents’ home, who shot Di-Jon (as he was called) Ryle, with a Benja-' min pump air rifle. The trial court rendered judgment for plaintiffs in the sum of $8,077.16 special damages and $20,000.00 damages for pain and suffering. Defendants appealed and plaintiff answered the appeal, seeking an increase in general damages to $50,000.00. We affirm.

On the evening of February 15, 1979, DiJon Ryle went over to Billy Potter’s parents’ home, whether upon invitation or not is unclear, and the two started shooting at a target in the Potter’s back yard with the air rifle. One would fire the air rifle while the other stood behind him. Finally, to vary the game, DiJon went over to a tree which stood between the target and the place from which the boys were firing and stood behind the tree. The tree lay to the left of the direct line of fire. After Billy shot at the target once, DiJon stuck his head from behind the tree and Billy aimed the air rifle at him. DiJon told him not to do that. After Billy then fired the rifle at the target, DiJon again stuck his head out from behind the tree. Billy again pointed the air rifle at him. DiJon did not draw back, as he thought Billy was just trying to scare him. Billy fired the gun, he testified, thinking he would strike the tree. The B-B shot from the air rifle struck Billy a short distance behind his right eye, penetrated the skull, and became lodged in the right hemisphere of the brain.

Billy was taken to Our Lady of the Lake Hospital and then to Baton Rouge General Hospital. Dr. Anthony S. Ioppolo performed a craniotomy' upon DiJon, which entailed cutting through the scalp, removing a portion of the skull about two inches in diameter, probing into the brain tissue which necessitated removal of some brain tissue, removing the B-B, replacing the portion of the skull with the bone structure, and closing the scalp with staples. The operation was a very serious operation. Di-Jon recuperated normally physically, but suffered an anxiety reaction for which he was treated by a psychiatrist, Dr. Charles F. H. Colby, on two occasions. His school work has never measured up to the level he had attained before, when he was an A, B and C student. After the craniotomy, he seemed to lose interest in his work, al: though he did play tackle football the next Fall.

The parents of a child who resides at home are liable for the torts committed by the child. LSA-C.C. arts. 237, 2318. A child may be of such tender age that he does not fully appreciate the dangerous consequences of his act. Turner v. Bucher, 308 So.2d 270 (La.1975). Here, it is doubtful that Billy was fully aware of the dangerous consequences of firing the shot that struck DiJon. Billy was 10 years old at the time and testified he intended to hit the tree. An adult would have been aware of the danger in hitting DiJon. Apparently, Billy was not. However, strict liability is imposed on a parent if the act of the child would be delictual except for the inability of the child to discern the consequences of his act. Turner, supra. Here, an adult would discern the consequences of firing an air rifle under the circumstances presented in this case. An adult who had fired the air rifle under similar circumstances would be guilty of gross negligence, at the very least, which gross negligence would give rise to delictual responsibility. Thus, strict liability would be imposed upon Billy’s parents.

The only defenses against the strict liability imposed by Turner are a showing of fault by the victim, fault of a third person, or a fortuitous event. Wilkinson v. Hartford Accident and Indemnity Company, 411 So.2d 22 (La.1982), states that while a child of 12 can be guilty of contributory negligence, such a child’s actions must be judged by his maturity and capacity to evaluate circumstances in each particular case, and he must exercise only the care expected of his age, intelligence, and experience. Thus, as we further gather from Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (La.1958), and from Outlaw v. Bituminous Insurance Company, 357 So.2d 1350 (La.App. 4th Cir. 1978), writ denied 359 So.2d 1293 (La.1978), although a 9 or 12 year old may be guilty of contributory negligence, he is not to be held to adult standards of comprehension of danger and duty of self-care. In the present case, an adult would have perceived the danger of standing behind the tree with an air rifle pointed at oneself, and taken preventive action, such as drawing back behind the tree (which was sufficiently large to protect DiJon completely). DiJon did not draw back, obviously thinking Billy was just playing a game. Given a child’s standard of conduct and comprehension of danger, DiJon did not act unreasonably in not taking preventive action. We do not find that DiJon was at fault so as to preclude a finding of strict liability on the part of Billy’s parents. As we noted in Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1st Cir. 1980), the relationship of victim fault (precluding strict liability) and contributory negligence (precluding liability for negligence) has not been fully worked out by this state’s jurisprudence. Suffice it to say that in the present case we find DiJon to have been free from victim fault because of his tender years. There, thus, is no barrier to strict liability. We, therefore, affirm the action of the trial court in finding the Potters liable.

The portion of the brain that was struck does not affect cognitive ability, although it does affect one’s personality. When DiJon returned to school after the operation, he was worried about being “retarded” and seemed to have lost interest in his school work. Some of the testimony of Dr. Colby, the psychiatrist who examined and treated DiJon on two appointments, seems to indicate some measure of retardation, although whether or not that condition was attributable to his having been shot is unclear. Also, DiJon suffered a partial hearing loss, which the testimony as a whole suggests may have resulted from the accident. Furthermore, DiJon testified at the trial, and his testimony is vague and rather unresponsive to the questions asked. All of this leads us to suspect that it is possible that DiJon may have sustained permanent brain injury to some extent. However, there is certainly no clear and unequivocal testimony that would establish permanent brain injury. We cannot, therefore, say that the trial court abused its much discretion in awarding the sum of $20,000 as general damages, although the sum appears somewhat smaller than the degree of injury would require. See LSA-C.C. art. 1934. In any event, we cannot substitute our judgment for that of the trial court absent a clear abuse of discretion, which we do not find in the present case. Provost v. A. E. Gravois and Sons, Inc., 398 So.2d 1287 (La.App. 4th Cir. 1981).

Accordingly, we affirm the judgment of the trial court at appellants’ cost.

AFFIRMED.


text:
    Mervin SCHOENNAGEL, Jr. v. LOUISIANA OFFICE OF EMPLOYMENT SECURITY.
    No. 14709.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Willie D. Maynor, Baton Rouge, for plaintiff, appellant.
    John V. Seago, Covington, for defendant, appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff, an employee of Terminix Exterminating Company, Inc., was arrested and incarcerated on January 29, 1980. Shortly thereafter he called his employer and left word of his incarceration and of his inability to make bond. He remained in jail for approximately fourteen days until he was able to gain his release. When released he contacted his superior and was informed he no longer had a job with Terminix.

Plaintiff applied for unemployment compensation benefits and was informed he was disqualified. The notice he received read in part as follows:

“You were discharged from your employment due to your inability to report for work because of incarceration. You were jailed because of personal misconduct. An employee is expected to conduct himself/herself off the job so as not to render himself/herself unable to perform the work. Your discharge was for misconduct connected with the employment.’’ (Emphasis added.)

Plaintiff appealed to the Office of Employment Security Appeals Tribunal, a hearing was held and the denial was affirmed. He then appealed to the Board of Review of the Office of Employment Security which also upheld the disqualification upon the stated ground of misconduct connected with the employment. He brought the matter to the district court which reversed the finding of the Board of Review but upheld the disqualification on another ground, i.e., plaintiff left his job without good cause connected with his employment. Plaintiff then appealed to this court.

The trial court’s holding that there was insufficient evidence to show plaintiff should be disqualified under La.R.S. 23:1601(2) due to misconduct connected with his employment is not an issue before us due to the failure of either defendant to appeal that aspect of the judgment. The only issue is whether or not the trial court was correct in concluding plaintiff had left his job without good cause connected with his employment and was therefore disqualified under La.R.S. 23:1601(1). For purposes of clarification we will, however, note both statutory grounds for disqualification and discuss briefly applicable law.

The pertinent parts of § 1601, in effect at the relevant time, read as follows:

“An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.
“(2) If the administrator finds that he has been discharged for misconduct connected with his employment such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance laws of any other state or of the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances. In addition, if the administrator finds that such misconduct has impaired the right, damaged or misappropriated the property of or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be cancelled and no benefits shall be paid on the basis of wages paid to the individual by such employer.” (Emphasis added.)

Concerning the allegation of misconduct, prior to the case of Grimble v. Brown, 247 La. 376, 171 So.2d 653 (1965), Louisiana courts had held acts of misconduct committed while the employee was off duty were in no way connected with his employment and therefore could not be used to disqualify the employee under § 1601(2). See Smith v. Brown, 162 So.2d 179 (La.App.3d Cir. 1964), and Smith v. Brown, 147 So.2d 452 (La.App. 2d Cir. 1962). Grimble disapproved of these cases and held off duty misconduct may be connected to the employment in certain cases. But the trial court in the instant case noted there was no evidence put forth at the hearing showing plaintiff had actually committed the act for which he was charged. Our review of the record verifies this fact and therefore the trial court correctly found the evidence was insufficient to warrant disqualification under § 1601(2).

The court upheld the disqualification under § 1601(1) on the basis that although plaintiff had left his employment with good cause the cause was not connected to the employment. We find plaintiff did not “leave” his employment and therefore reverse the decision of the trial court.

As quoted above, the first sentence of subsection (1) states an individual shall be disqualified if he has left his employment without good cause connected with his employment. The term “left” is used in this subsection whereas the phrase “has been discharged” is used in subsection (2). The meaning of the term “left” was an issue in Piggly Wiggly of Springhill, Inc. v. Gerace, 370 So.2d 1327 (La.App. 2d Cir. 1979). The court stated, at pages 1328, 1329:

“Our interpretation of 1601(1) is that the word left is intended to cover those situations where an employee quits, or voluntarily leaves or resigns, his employment.”

The testimony at the hearing shows plaintiff did not voluntarily leave his employment. He expressed his intention to remain as an employee by calling his employer the day he was incarcerated and again by calling the very day he was released from jail. The employee’s action of contacting the employer while incarcerated was deemed significant in Smith v. Brown, (supra) and we find it significant in the present case. In light of these circumstances we cannot deem this unavoidable absence to mean he “left” his job.

In Towner v. Department of Emp. Sec., 364 So.2d 1362 (La.App. 3d Cir. 1978), an employee had been granted a leave of absence but misunderstood the duration of the leave. When she called to inquire about returning to work she was informed she had been replaced because she failed to return at the proper time. The Third Circuit concluded she did not leave her employment voluntarily and therefore did not fall under the first paragraph of Section 1601.

The court said, at page 1363:

“Where there is a leave of absence mutually agreed on by the employer and employee, the employee does not voluntarily quit his job for purposes of determining eligibility for unemployment compensation benefits following failure of the employer to re-employ the employee at termination of the leave.”

We realize the present case does not involve a leave of absence but we find the reasoning applied to be pertinent here. In both cases we have an employee who was away from work but who had communicated an intention to return to work. Although the employee in Towner was initially granted permission to be away from work, at the time she returned to her job, she had been away without the consent of her employer, just as the plaintiff had been in this case. The gist of the decision is that an employee who is not physically present at work, but who has kept in touch with his or her employer and intends to return to work has not “left” the employment within the meaning of § 1601(1). Using this logic we conclude plaintiff had not “left” his work and therefore should not be disqualified under this statute.

In support of the above reasoning, it is interesting to note the initial notice of disqualification, quoted above, informed plaintiff “You were discharged from your employment due to your inability to report to work because of incarceration.” It did not state he had left his employment. Since § 1601(1) is applicable only to situations where the employee voluntarily leaves the employment, it has no application to the facts of this case.

We note plaintiff is not contesting his employer’s right to dismiss him due to his absenteeism or his alleged misconduct, but argues simply that he should not be disqualified under § 1601(1) or (2) from receiving unemployment benefits. Further, he stated at the hearing he does not expect to be compensated for the time spent in jail but only from the time of his release (February 14, 1980) when he learned he was discharged from his job.

For these reasons, the judgment appealed from is reversed and this case is remanded to the Board of Review, Office of Employment Security, which agency is ordered to recognize claimant’s eligibility for unemployment compensation benefits (beginning February 14, 1980) in accordance with this opinion.

REVERSED AND REMANDED.

      . To a supplemental brief recently filed by appellant, there is attached an extract of trial court minute entries showing appellant was found not guilty of the charge on January 13, 1982.

      . We are aware that the findings of the Board of Review as to facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. La.R.S. 23:1634; Leonard B. Hebert, Jr. & Co. v. La. Etc., 383 So.2d 431 (La.App. 4th Cir. 1980). If the issue of plaintiffs leaving his employment is characterized as a factual matter, we conclude there was insufficient evidence to support the review board’s conclusion. However, we are more inclined to characterize the issue of “leaving” and the meaning of the term "left” as purely legal matters, since they involve the interpretation of the law.

      .Although this case was disapproved in Grim-ble (supra), it was for reasons not related to the issue of the employee notifying the employer.

      . Our holding in this case is limited to and based on the particular facts. We are in no way implying any employee who is incarcerated and then attempts to report to work is automatically entitled to unemployment benefits. Nor are we holding an unreasonably long period of incarceration or other absence from the job cannot ever be tantamount to one “leaving” his employment. We hold simply that under the facts of this case plaintiff should not be disqualified for benefits.


author: SAVOIE, Judge.

text:
    SUCCESSION OF Bobby Gene DYKES.
    No. 14720.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    J. Philip Goode, Jr., for Evelyn Webb Dykes, appellee.
    Ronald Guth, Slidell, for Andrew McKinney, appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This appeal was fixed on the February 17, 1982 docket and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), Uniform Rules of the Courts of Appeal, this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

Appellant is to pay all costs.

APPEAL DISMISSED.


text:
    DOIRON INVESTMENT CORPORATION v. Juanita GARRISON.
    No. 14802.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Joseph Perrault, Jr., Baton Rouge, for plaintiff (appellee).
    James A. Carnes, Baton Rouge, for defendant (appellant).
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal was scheduled for hearing and submission on April 2, 1982, and all attorneys of record were notified. No brief was filed on behalf of appellant or appellee, nor was any motion filed for continuance. No appearance was made on behalf of either appellant or appellee.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, IT IS ORDERED that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: PER CURIAM.

text:
    Lawrence MAGEE v. SLIDELL UNION 76 AUTO/TRUCK, et al.
    No. 14828.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Lawrence Magee, in pro. per.
    Willie D. Maynor, Baton Rouge, for defendant, appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   PER CURIAM.

This appeal was fixed for April 2, 1982. All attorneys of record and appellant (appearing in proper person) were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief or motion for continuance been filed on his behalf.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Katherine Marie Leblanc HAMMACK v. Jimmie Bryant HAMMACK.
    No. 14836.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    James D. Thomas, Baton Rouge, for defendant.
    Lee Herrington, Baton Rouge, for plaintiff.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

WATKINS, Judge.

Considering the joint motion of Katherine Marie LeBlanc Hammack and Jimmie Bryant Hammack to dismiss this appeal, IT IS ORDERED that this appeal be dismissed, Jimmie Bryant.Hammack to be cast with all costs of the appeal.

DISMISSED.


text:
    STATE of Louisiana In the Interest of Leonard GUY.
    No. 14999.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Wiley R. Dial, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of Louisiana.
    Kathleen Richey, Public Defender, Baton Rouge, for defendant-appellant Leonard Guy.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Leonard Guy, a juvenile, was adjudicated delinquent for purse-snatching. He was ordered committed to the custody of the Department of Corrections for a term not to exceed his twenty-first birthday. Neither the adjudication nor the commitment gave rise to any ground of appeal. Before us, counsel for Leonard Guy complains only, and rightly, as we find, that the Family Court Judge has imposed improper restrictive conditions on the Department of Corrections.

The commitment order reads, in pertinent part:

“No holiday leaves or weekend passes, leaves or paroles, etc. for one year. Not eligible for parole for a period not to exceed two (2) years.”

The statutes dealing with furloughs and release of juveniles in custody of the Department of Corrections are contained in L.S.A. Title 15:

“906. Release from commitment
The Department of Corrections may recommend to the committing court the release of any juvenile committed to its care, who, in the opinion of the department, is ready to be returned to his own home, or to a substitute home. Such juvenile may be discharged by the court without supervision or may be placed under supervision until further orders of the court.”
“It is hereby declared to be the public policy of this state that commitment of a juvenile to the care of the Department of Corrections is not punitive nor in anywise to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile and that, therefore, the recommendations of the department should be given careful consideration by the court in determining what is to the best interest of the juvenile.”
“If, after release from the care of the Department of Corrections, but while the juvenile is still under the supervision of the court, the court deems it advisable to return the juvenile to the care of the Department of Corrections, a recommitment order shall be furnished the department.”
Added by Acts 1970, No. 353, § 1.
“908. Student furlough program
“A. The director of the Department of Corrections may authorize a temporary furlough to deserving students of any juvenile institution, unless, after receiving notification of the proposed furlough, the juvenile court having jurisdiction notifies the department of its objection. The temporary furlough is to serve as a rehabilitative tool to assist the child in maintaining family and community relations during the period of his commitment.”
“A temporary furlough as provided herein is not to be considered a release from commitment and does not affect the jurisdiction of the juvenile court or the authority of the Department of Corrections as to the children granted a temporary furlough.”
“B. A responsible member of the child’s family or other previously approved adult must sign a custody receipt and provide transportation for the child to and from the juvenile institution.”
Added by Acts 1975, No. 449, § 1.

Though the Family Court Judge may well be correct in his present conviction, based on his experience with this case and his personal observation of the appellant, that rehabilitation will require at least one year imprisonment without furloughs and at least two years before release, he should not have imposed those restrictions in advance as part of the order of commitment. Under the statutes reproduced above, the initial decision to recommend a furlough or release is to be made by the Department of Corrections based solely on its expert judgment of the rehabilitative progress made by the affected juvenile during the period of commitment. Thereafter, the committing judge is empowered to exercise a veto, but he is duty bound to bear in mind the non-penal nature of juvenile commitments and to give “careful consideration” to the Department’s recommendations.

The commitment order herein is hereby amended by striking out the restrictive conditions quoted in full above. As so amended, the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    STATE of Louisiana In the Interest of Carl DABNEY.
    No. 15000.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Greg Tonore, Wiley R. Dial, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee State of Louisiana.
    Gail Horne Ray, Public Defender, Baton Rouge, for defendant-appellant Carl Dab-ney.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Carl Dabney, a juvenile, was adjudicated delinquent for purse-snatching. He was ordered committed to the custody of the Department of Corrections for a term not to exceed his twenty-first birthday. Neither the adjudication nor the commitment gave rise to any ground of appeal. Before us, counsel for Carl Dabney complains only, and rightly as we find, that the Family Court Judge has imposed improper restrictive conditions on the Department of Corrections.

Dabney’s commitment order reads, in pertinent part:

“No weekend passes, parole, leaves or Christmas holidays, etc. for one year. Not eligible for parole for two years.”

For the reasons this day assigned in the case of “State of Louisiana, In the Interest of Leonard Guy,” 413 So.2d 657, the commitment order herein is hereby amended by striking out the restrictive conditions quoted in full above. As so amended, the judgment is affirmed.

AMENDED AND AFFIRMED.