text:
    Beth Burns PATTERSON v. Bobby Hurst PATTERSON.
    No. 14943.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      William H. Cooper, Baton Rouge, for plaintiff-appellee Beth Burns Patterson.
    William C. Shockey, Neil H. Mixon, Baton Rouge, for defendant-appellant Bobby Hurst Patterson.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Beth Burns Patterson against her former husband, Bobby Hurst Patterson, to partition the effects of the community of acquets and gains formerly existing between them. The former wife filed suit for separation from bed and board on April 22, 1976. The husband reconvened likewise seeking a separation from bed and board. The matter culminated in a judgment of divorce rendered on December 15, 1976. The former wife filed the present action on March 25, 1977, for partition of the assets of the community formerly existing between them.

The husband at trial on the merits claimed certain credits against the community. The trial court allowed certain credits and disallowed others. Mr. Patterson has appealed. Mrs. Patterson, now Ms. Hudson, neither appealed nor answered the appeal. Thus, the sole question before us is whether or not the trial court erred in denying Mr. Patterson certain credits. The credits that were disallowed involve (1) corporate loans allegedly used by Mr. Patterson to pay for community property on Tiger Bend Road and to meet certain community expenses, (2) additional reimbursement to Mr. Patterson surrounding sale of 500 shares of Florida Gas Company stock, (3) accounting fees paid by Mr. Patterson in addition to those for which reimbursement was allowed, and (4) alimony pendente lite paid by Mr. Patterson to Mrs. Patterson.

(1) Mr. Patterson testified that he was sole owner of International Systems Limited, a corporation, and owner of fifty per cent of the stock of another corporation, Management Systems & Studies, Inc. He testified that during the existence of the community these corporations lent sums of money to Mr. Patterson, which he used to make a down payment on property on Tiger Bend Road, a community asset, and to meet community obligations.

Sufficient evidence is lacking that this is a valid claim. There is almost no evidence that any money was ever lent, or the money thus lent was used by the community, or that the alleged debts were paid by Mr. Patterson individually. In evidence are checks from the corporation payable to Mr. Patterson. However, no notes or other evidence of loans were introduced other than notes that were supposedly given as renewals of the original notes. There is no evidence that Mr. Patterson, if he indeed obtained the loans, ever paid over the funds to the community or used the funds for the benefit of the community.

As to payment, the renewal notes are not marked cancelled. The sole evidence that would tend to indicate payment is in a pair of corporate income tax returns, one prepared before and the other after the supposed date of repayment, which taken together indicate that unspecified loans to a shareholder, larger in amount than the loans to Mr. Patterson, had been discharged. There are no cancelled checks. It is not even shown that Mr. Patterson’s separate funds or assets had anything to do with the discharge of the supposed loan.

The burden of proof is on the party claiming he made loans to the community to show that separate funds existed and that those funds were used for the benefit of the community. Succession of Provost, 190 La. 30, 181 So. 802 (1938); Succession of Videau, 197 So.2d 655 (La.App. 4th Cir. 1967), writ refused 250 La. 920, 199 So.2d 922 (1967).

As clear proof is wholly lacking of the loans by the corporations, of the use of such loans by the community, or of their repayment, we find the trial court was correct in denying those items as claims against the community.

(2) Mr. Patterson testified that he sold certain separate property for $4,872.44, and used that sum, together with another corporate loan in the amount of $4,000.00, together with community funds, to purchase 600 shares of stock in Florida Gas Company for a total price of $9,501.69. Five hundred shares were issued in Mr. Patterson’s name, and one hundred in Mrs. Patterson’s name. The five hundred shares held by Mr. Patterson were sold for $9,482.32.

The trial court treated all six hundred shares as community property. It allowed Mr. Patterson reimbursement for the $4,872.44 obtained from the sale of Mr. Patterson’s separate property. It ordered the community reimbursed for the difference between the sale price of $9,482.32 and the sum proved to have been advanced by Mr. Patterson ($4,872.44). It ordered the one hundred shares held in Mrs. Patterson’s name partitioned in kind between Mr. Patterson and Mrs. Patterson.

Mr. Patterson claims credit for the alleged corporate loan of $4,000.00 in connection with the purchase of the Florida Gas Company stock. Again, proof and exactness are lacking. We have thoroughly examined the record and find the claim unsupported.

Mr. Patterson claims a greater share of the profit. There was obviously a profit involved in the sale of the Florida Gas stock, as six hundred shares were bought by Mr. Patterson for $9,501.69 and five hundred shares were sold for $9,482.32. However, the entire difference between the purchase price of $9,501.69 and the sum of $4,872.44 was awarded to the community. Thus, the profit goes to the community, and, ultimately, one-half to Mr. Patterson. He thus obtained an equitable portion of the proceeds of the sale of the Florida Gas stock.

(3) Mr. Patterson claims an additional credit in the sum of $5,941.10 paid to Seidman & Seidman, Certified Public Accountants, Baton Rouge. The trial court allowed credits for the sum of $347.00 paid Seidman & Seidman, and for $966.00 paid to the firm of Ourso, McFadden & Salins, Certified Public Accountants, Baton Rouge. The sum of $5,941.10 is shown on the Seid-man & Seidman statement as “Balance forward”. As Mr. Patterson has not sufficiently demonstrated that the balance brought forward is derived from a community debt, we find the trial court acted properly in denying that item.

(4) The minutes of court in the prior divorce proceeding show that Mr. Patterson was ordered to pay Mrs. Patterson $900.00 per month alimony pendente lite. These sums were paid for eight months, until divorce, and came to a total sum of $7,200.00. Mr. Patterson contends the payments of alimony pendente lite constitute a credit against the community.

In support of the proposition that alimony pendente lite constitutes a community debt, rather than a debt of the husband’s (or paying spouse’s) separate estate, Mr. Patterson relies upon Messersmith v. Mes-sersmith, 229 La. 495, 86 So.2d 169 (1956). Messersmith held that alimony pendente lite should be paid out of community funds, relying upon Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (1956), which held that the community of acquets and gains is dissolved not as of the date of filing of a suit for separation or divorce, but as of the date of judgment of separation from bed and board or divorce.

However, Tanner was legislatively overruled by an amendment to LSA-C.C. art. 155 adopted by La. Act No. 178 of 1962, which expressly provided that the termination of community by judgment of separation from bed and board or divorce was retroactive to the date of filing suit. Mes-sersmith’s holding that alimony pendente lite should be paid from the community was based on the fact that the community still existed. However, under the present G.C. art. 155, that is no longer the case. The community ceases to exist retroactively as of the date of filing suit for separation or divorce. Thus, the reasoning in Messers-mith, if anything, now supports the proposition that the party from whom alimony is due cannot obtain reimbursement from the community.

The Fourth Circuit so held in Palama v. Palama, 323 So.2d 823 (La.App. 4th Cir. 1975), writs refused 326 So.2d 381 (La.1976), and in Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir. 1977). Furthermore, this circuit has held that alimony pendente lite is not a debt which is to be reimbursed from the community. Lupo v. Lupo, 366 So.2d 932 (La.App. 1st Cir. 1978). Thus, Mr. Patterson has no claim for reimbursement from the community for alimony pendente lite paid by him to his former spouse, Mrs. Patterson.

Mr. Patterson argues that the alimony paid Mrs. Patterson was paid under the authority of LSA-C.C. art. 148, as it stood in 1976, which codal article in its then existing form was ruled unconstitutional as gender-based in Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir. 1980), which is based upon the holding in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which held a similar provision of Alabama law unconstitutional. However, nothing in Orr or in Smith indicates that a credit exists for alimony payments made under prior law, or that such earlier alimony payments should be remitted to the party paying them. Such a result as suggested by Mr. Patterson is both beyond the breadth of the holdings in Orr and Smith and contrary to the sound administration of justice.

We find the trial court acted correctly in denying Mr. Patterson a credit from the community for the sum of $7,200.00 paid by him as alimony pendente lite.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    CUSTOMER SERVICE ELECTRIC SUPPLY CORPORATION v. SCR & ASSOCIATES, INC.
    No. 14996.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Murphy J. Foster, III, Dorothy Dubroc Thomas, Baton Rouge, for plaintiff-appellant Customer Service Elec. Supply Corp.
    Philip N. Burt, Baton Rouge, for defendant-appellee SCR and Associates, Inc.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Customer Service Electric Supply Corporation (“Customer Service”) filed suit against defendant, SCR & Associates, Inc. (“SCR”), seeking a sum alleged to be due on open account. Plaintiff’s petition also sought an award of costs, interest and attorney fees. Defendant answered plaintiff’s petition, generally denying the allegations therein.

At the trial of the matter, however, defendant offered no opposition and judgment was rendered in favor of plaintiff in the amount of $6,819.64 plus legal interest and costs. The trial court denied plaintiff’s request for attorney fees. Plaintiff has appealed, asserting that the trial court erred in refusing to award attorney fees.

The last payment made by SCR on its account with Customer Service was in September of 1980. Amicable demand for further payments proved unsuccessful. On March 24, 1981, plaintiff’s attorney sent a demand letter, with attached invoices, to defendant’s post office box. This letter was returned by the post office stamped “Box Closed — No Order.” Plaintiff’s suit was filed on April 14, 1981.

The trial court’s denial of attorney fees was based on a holding that appellant had not strictly complied with LSA-R.S. 9:2781, which authorizes the award of attorney fees in open account suits. The trial court held that the statute requires a lapse of thirty days between receipt of written demand and the filing of suit as a condition to the award of attorney fees. Since plaintiff’s suit was filed only twenty days after the demand letter was mailed, the trial court held that plaintiff was not entitled to attorney fees.

On appeal, plaintiff asserts that LSA-R.S. 9:2781 does not require a thirty-day waiting period between receipt of the demand letter and filing of suit. We conclude that it is unnecessary for us to address that issue. Assuming, arguendo, that there is no such thirty-day waiting period, plaintiff has still failed to prove its entitlement to attorney fees under the statute.

LSA-R.S. 9:2781 A requires an award of attorney fees in favor of a successful plaintiff in an open account suit when a debtor fails to pay an open account debt within thirty days after receipt of written demand. Section B of the statute allows an award of attorney fees in certain instances where delivery of written demand is attempted but not accomplished because circumstances render delivery impossible. In order to award attorney fees in such an instance, the trial judge, in his discretion, must find that there is sufficient evidence of due diligence in attempting delivery.

In the instant case, actual delivery of written demand was not accomplished. Furthermore, because of his disposition of the case, the trial judge did not address the question of whether appellant exercised due diligence in attempting delivery of written demand. However, our examination of the evidence reveals that plaintiff failed to prove the exercise of due diligence.

Cecil McAdoo, Secretary-Treasurer of Customer Service, was the only witness to testify at trial. McAdoo testified that a demand letter was sent to SCR but that no payment was forthcoming. McAdoo did not testify with regard to the return of the letter by the post office. Likewise, McAdoo did not testify with regard to any other efforts by Customer Service to deliver the demand letter to S.C.R.

As noted above, the demand letter, addressed to defendant’s post office box, was returned stamped “Box Closed — No Order.” There is no evidence in the record to suggest that plaintiff did not know the location of defendant’s place of business or where to locate any officers or employees of SCR. Furthermore, we note that when suit was filed, plaintiff had defendant served through its agent for service of process. No evidence was offered to show why the demand letter could not also have been sent to that agent.

We conclude, therefore, that plaintiff failed to prove its entitlement to attorney fees under LSA-R.S. 9:2781. The evidence in the record merely shows that a demand letter sent to defendant’s post office box was returned by the post office. That fact alone would not support a factual finding that plaintiff exercised due diligence in attempting to deliver written demand to the defendant. Since plaintiff failed to prove its entitlement to attorney fees, there is no error in the trial court’s refusal to award them.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . The amount of the trial court’s judgment represents an apparent clerical error since plaintiffs petition alleged, and its statement of account reflects, that defendant’s open account debt was $6,819.46. Nevertheless, since defendant has neither appealed nor answered plaintiff’s appeal, that portion of the judgment is final.

      . LSA-R.S. 9:2781 provides as follows:
      “A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.
      “B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished, along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor. If the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.
      “C. For the purposes of this Section, an open account shall include debts incurred for professional services, including, but not limited to, legal and medical services, which are rendered on a continuing basis.
      “D. As used in this Section, ‘person’ means an individual, association, corporation, partnership, trust, or any other public or private legal entity.”


author: COVINGTON, Judge.

text:
    Adal D. JONES v. CHRYSLER CREDIT CORPORATION.
    No. 14944.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Writ Denied Oct. 1,1982.
    Adair D. Jones, Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Adal D. Jones.
    Erwin A. LaRose, Baton Rouge, Trustee in Bankruptcy for Plaintiff, Adal D. Jones.
    G. Thomas Arbour, Baton Rouge, for defendant-appellee Chrysler Credit Corp.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff, Adal D. Jones, from a judgment of the district court maintaining the exception of no right of action filed by the defendant, Chrysler Credit Corporation, and dismissing plaintiff’s suit; but reserving all rights of the trustee in bankruptcy to assert the cause of action. The basis for the lower court’s decision was that since the plaintiff’s cause of action for wrongful seizure of personal property arose prior to plaintiff’s petition in bankruptcy, the trustee in bankruptcy, rather than the plaintiff, was the proper party to bring the action. 11 U.S.C.A. § 323. We agree with the ruling of the trial court, and affirm.

This action arises out of the seizure of a 1977 Chrysler automobile by Chrysler Credit Corporation. Adal D. Jones purchased the automobile from A. K. Durnin Chrysler-Plymouth, Inc., and it was financed by Chrysler. Jones allegedly became delinquent on his monthly obligations to Chrysler for the months of October, November, and December, 1979. On January 2, 1980, Chrysler sued to have Jones’ vehicle seized for the delinquency. On January 15, 1980, the automobile was seized; it was sold at public auction without any attempt by Mr. Jones to have the proceedings or the sale stopped, or any appeal from any orders in the proceedings.

Thereafter, on May 7,1980, Jones and his wife, Marsha Costley Jones, filed a voluntary petition for bankruptcy and a trustee of the estate of the debtors was appointed. The plaintiff instituted the present action for damages on February 17, 1981, which is after Jones and his spouse filed for bankruptcy.

11 U.S.C.A. § 323 makes the trustee the representative of the bankrupt’s estate, and grants him the capacity to sue and be sued. 11 U.S.C.A. § 541 provides that the commencement of a bankruptcy case creates an estate, which includes all legal and equitable interests of the bankrupt in property “as of the commencement of the ease.” 11 U.S.C.A. § 704 obligates the trustee to collect and administer the bankrupt’s estate. Thus, all legal and equitable interests of the bankrupt in property vest in the trustee from the time the bankruptcy is filed. Thereafter, only the trustee can act to recover the assets of the bankrupt. It is the trustee, not the bankrupt, who has the legal capacity to sue upon a cause of action for damages arising prior to the filing of the petition in bankruptcy.

Accordingly, we hold that the district court properly maintained the exception of no right of action and dismissed the bankrupt’s suit. We affirm at appellant’s costs.

AFFIRMED.

      . 11 U.S.C.A. § 323 reads:
      “(a) The trustee in a case under this title is the representative of the estate.
      “(b) The trustee in a case under this title has the capacity to sue and be sued.”

      . Exceptor has attached to its exception of no right of action copies of the notice of the filing of the bankruptcy, civil action for deprivation of civil rights in violation of 42 U.S.C.A. § 1983 (filed February 28, 1980) in the Middle District of Louisiana, and the minute entry and judgment dismissing said civil action on December 12, 1980.

      .Apparently, the action was not listed on the schedules filed with the petition, and the trustee only learned of the action for damages at the first meeting of the creditors, June 24, 1980. In any event, there is no showing that the trustee has abandoned or transferred the action back to the bankrupt.


author: COLE, Judge.

text:
    David R. WILLIAMS and Marie T. Williams v. Dr. Relvert COE.
    No. 14945.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Gerald L. Walter, Jr., Baton Rouge, for plaintiffs-appellees David R. Williams and Marie T. Williams.
    Donn Moss, Baton Rouge, for defendant-appellant Dr. Relvert Coe.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issues presented are whether or not the defendant breached an agreement to sell certain property to the plaintiffs, and whether or not certain claims arising out of the agreement are compensable. The facts giving rise to this dispute are as follows. Dr. Relvert Coe and his late wife, Jean Dasher Coe, were owners of a certain piece of property identified as Lot 7, Square 2, Glenmore Subdivision, in Baton Rouge, Louisiana. Mrs. Coe died in 1958 and her four children were placed in possession of her undivided one-half interest in the property by virtue of a judgment of possession. Thereafter, Dr. Coe married Phyllis Iris and they lived on the subject property until March 1976. Dr. Coe then moved to Florida. Shortly thereafter Phyllis Iris Coe filed a petition for separation and also a notice of lis pendens, claiming a community interest in the subject property.

On July 6, 1976, Dr. Coe signed a purchase agreement with David R. Williams and Marie T. Williams agreeing to sell the property for the sum of $59,900, dependent upon the Williams’ ability to secure a loan. A lending institution approved the loan but the attorney for the institution noted that Dr. Coe was in fact the owner of only a one-half undivided interest in the property.

Dr. Coe (through his son Jason) assured Mr. and Mrs. Williams the act of sale would go through as soon as powers-of-attorney were secured from all the children. With Dr. Coe’s permission, the Williams family moved into the residence (located on Long-wood Drive) in August of 1976, and began making necessary repairs and improvements to the house and swimming pool.

Shortly after occupying the house the Williamses learned that in addition to their being some difficulty in obtaining the powers-of-attorney from the children, Phyllis Coe was making a claim against the house.

In April of 1977, Mrs. Coe caused a writ of attachment to be issued on the house and in March of 1979 a writ of fieri facias was issued. The house was sold at a sheriff’s sale in May of 1979 and the Williamses were required to vacate the premises in June of 1979.

The Williamses filed suit against Dr. Coe seeking damages for the breach of the purchase agreement. Dr. Coe reconvened for the reasonable rental value during the 35 months in which plaintiffs occupied the house, and for alleged damage to the premises.

The enforceability of the agreement was presented to the trial court in the form of a stipulation which essentially set forth the above mentioned facts. The court made a ruling on the stipulation as follows:

“Since the defendant new (sic) or should have known that he did not own the entire interest in the property at the time of purchase agreement, he should not have agreed to convey the entire interest.
“Therefore, the Court feels that he is subject to damages, if any can be proved, payable to plaintiffs.”

Thereafter, a hearing was set to hear evidence on the issue of damages only.

After the hearing the court rendered judgment in favor of Mr. and Mrs. Williams and against Dr. Coe. The court noted Dr. Coe’s claim for the reasonable rental value was offset by the Williams’s claim for the appreciated value of the property, therefore no money was awarded on either of those claims. The court awarded plaintiffs $4,545.75 for repairs and expenses including $2,435.75 for paint, $200 for electrical repairs, $1,710.00 for swimming pool expenses, and $200 for moving expenses. Plaintiffs were also awarded $1,300 for attorney fees, for a final total of $5,845.75. Dr. Coe appealed and Mr. and Mrs. Williams answered the appeal.

Appellant (Dr. Coe) raises three specific errors. First, he contends the purchase agreement was null and void by its own terms when after a reasonable period of time he was not able to deliver a merchantable title. The purchase agreement states the act of sale was to be passed within 60 days, which would have been September 4, 1976. He calls particular attention to a part of the printed form which reads as follows:

“In the event title is not valid and cannot in reasonable time and at reasonable expense be made valid, this contract shall be null and void and the deposit shall be immediately returned.”

Dr. Coe maintains since a merchantable title was not available after a reasonable length of time, the purchase agreement became null and void and plaintiffs are limited by the agreement to seek the return of their deposit, but should not recover damages. We agree the purchase agreement became null and void after a reasonable length of time but conclude the respective parties incurred certain obligations as incidents to the contract, for which they are liable.

During the first few months of their occupancy plaintiffs were aware of problems with obtaining clear title but, due to assurances and the ongoing negotiations between Dr. Coe and Mrs. Coe of which they were aware, were justified in remaining in the house with the hope title would be cleared and the sale passed. But when they learned of the writ of attachment in April of 1977, they were informed of the serious nature of the title problem. As admitted by Mr. Williams: “[W]e realized then that this was a serious problem and that the Act of Sale might . .. might be in jeopardy.” He added: “[I]t was explained to me at that time that the writ of attachment was going to make it impossible to clear the title until it was removed.” At that point in time it was clear to Mr. and Mrs. Williams the defective title of which they had known for several months had not been made “valid” and that efforts to make it valid within a “reasonable time,” provided for in the agreement, had finally failed. Some ten months had passed since the agreement was confected and we construe this period to fulfill the “reasonable time” requirement. Therefore, under the terms of the purchase agreement, the contract became null and void as of April 1977.

In the case of Clark v. Harrison Property Management Co., Inc., 359 So.2d 614 (La.1978), a similar situation was presented. Therein, the seller could not convey title due to defects. The agreement provided: “The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit... . ” This provision is essentially the same as that found in the instant matter, the only difference being a particular time was stipulated as contrasted to the “reasonable time” provided for herein.

In Clark, after noting a merchantable title could not be delivered by the seller within the time stipulated, the Supreme Court, at page 616, held:

“Under the clear terms of the contract, which is the law between the parties, the seller was unable to deliver merchantable title within the time stipulated and the contract was rendered ‘null and void, reserving unto purchaser the right to demand the return of the deposit from the holder. * * *’ ”

We find Clark to be ample authority for our conclusion that, as of April 1977, the agreement between plaintiffs and defendant ceased to exist. Agreements legally entered into have the effect of laws on those who have formed them. La.Civ.Code art. 1901.

Plaintiffs seek to distinguish Clark on the basis the seller was not aware of the title defect which prevented it from delivering a merchantable title, urging certain language from an unreported decision at the Court of Appeal level which is annexed to their brief. As we are not at liberty to consider the unreported opinion, we pretermit the question of whether or not the language relied upon supports plaintiffs’ position. See, Rule XII-A, Section 3, Uniform Rules — Courts of Appeal. We do note, however, the corporate seller in Clark was represented by its president who presumably had knowledge of an outstanding one-sixth interest inherited by the children of one of the parties at interest. The Supreme Court did not cite this fact as any lack of good faith on the part of the seller nor did it discuss its effect as related to a possible breach of the contract. Instead, it found another, more significant, defect to be an “insurmountable obstacle” to passage of the sale. This is not unlike the present situation where Dr. Coe may be charged with the knowledge of his children’s undivided interest but it was the intervention of Mrs. Coe which turned out to be the “insurmountable obstacle” to conveying a valid title.

Actually, the notice of lis pendens claiming a community interest was filed by Mrs. Coe approximately three months before the purchase agreement was confected. This rendered the title suggestive of future litigation thereby making it unmerchantable at that time. Young v. Stevens, 252 La. 69, 209 So.2d 25 (1968). While Dr. Coe may be charged with knowledge of the filing of the notice of lis pendens due to the public records doctrine, he was in Florida at that time and any bad faith is negated by that fact as well as the obvious lack of any validity to Mrs. Coe’s community claim.

Nor can we conclude Dr. Coe was in bad faith due to his knowledge of his children’s interest in the property. One of his children was in frequent communication with the plaintiffs and was assisting in perfecting the title. There is nothing to indicate the other children would not have participated in the sale within a reasonable length of time. As a father, Dr. Coe may be attributed good faith in believing his children would not serve as an impediment to the sale. Even if we were to find Dr. Coe breached the agreement, which we do not find, we could not characterize his conduct as bad faith. By bad faith is not meant the mere breach of faith in not complying with a contract, but a designed breach of it from some motive of interest or ill will. La.Civ.Code art. 1934(1). Such is not here the case.

We conclude the sale in this instance did not take place because of the actions of Mrs. Coe, not because Dr. Coe agreed to sell property in which he did not own a full interest. The latter consideration became irrelevant and had no bearing on the inexe-cution of the sale.

Appellant’s second contention is that the court erred in awarding damages for the various repairs and for the moving expenses because there was insufficient proof at trial. We disagree but first address the basis for damages in this regard.

Even though the contract was rendered null and void as of April 1977, it was a viable agreement up until that time. As such, it gave rise to certain incidents which created obligations on the part of the respective parties. These incidents were not contemplated at the time of the agreement but later arose out of the plaintiffs’ need to move from the residence they had sold, Dr. Coe’s consent to let the plaintiffs move into the subject residence pending the Act of Sale, and the protracted length of time used in attempts to perfect the title. Thus, from August 1976 until April 1977 the following things occurred which, under our law, may properly be termed incidents to the then existent contract to buy and sell:

1. Plaintiffs made certain improvements to the property, including interior painting, electrical repairs and pool cleaning and repair.
2. Plaintiffs occupied the premises without the payment of any rental.
3. The property appreciated in value.

We are fortified in our belief that these are properly incidents of the purchase agreement by the express language of La.Civ. Code arts. 1963, et seq. These articles deal with the obligation to perform all that is required by equity, usage, or law, as incidents to a contract.

Article 1964 provides:

“Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.” Article 1965 provides:
“The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

It is obvious the plaintiffs and the defendant in this case were silent upon the residual obligations which might arise from the delays and from plaintiffs’ occupancy of the home because, at the time, they did not expect a prolonged delay in closing the sale nor the ultimate failure of the agreement. The parties certainly did not intend to obligate each other but acted with the knowledge that should the occupancy result in monetary loss or gain, the principles of fairness and equity would obtain. We hold they do obtain, and afford the basis for adjudication of the monetary claims asserted for the items above listed.

The first item awarded by the trial court was $2,435.75 for materials and labor involved in painting the interior of the house. A stipulation was entered by the parties that if Mr. Dudley Broussard (a painting contractor) were called he would testify in accordance with an itemized list introduced as an exhibit. The list showed the price of labor and materials involved in painting 16,048 square feet was $2,435.75. Mrs. Williams testified virtually all rooms were painted except a bathroom. While the evidence concerning this expense is rather minimal, it is uncontradicted and we find no abuse of discretion in the trial court’s award. We find sufficient evidence, in the form of testimony by Mr. and Mrs. Williams, to substantiate the other items of damages; i.e., the $200 for electrical repairs, $1,710 for pool cleaning, repairs and maintenance, and $200 for moving expenses. We reject appellant’s argument there should be no award for the pool expenses because these expenses were paid only for the enjoyment of the tenants. Testimony by Mrs. Williams indicated they replaced the pump and filter system for the pool as well as cleaned and maintained the pool during the months of occupancy. Dr. Coe would certainly be enriched unjustly if the pool had been repaired (and maintained for almost three years) at the Williams’ expense. We decline to disturb these awards and hold they are recoverable as obligatory incidents of the contract to buy and sell.

Appellant’s third argument is that the court erred in failing to award any sums to him for the fair rental value of the house. The court did so because it determined any amount due Dr. Coe for rental was offset by the amount due the Williamses as damages based on the appreciation of the house. We find the trial court did err as regards treatment of rental and appreciated value.

During the approximate nine months plaintiffs occupied the premises before the purchase agreement became null and void, the property, according to the unrefuted testimony of Mr. Russell Doiron, increased in value by $3,600.00. During this same period of time a fair rental value, according to Mr. Doiron, was $350.00 monthly for a total of $3,150.00. As incidents to the purchase agreement (a contractual relationship involving only the plaintiffs and Dr. Coe), these are proper items for recovery. Aside from the codal basis (La.Civ.Code arts. 1963, et seq.) for the award of rental value, our jurisprudence has long recognized the equitable principle that where the purchaser has gone into possession, the seller is entitled to recover the fair rental value of the premises. Thompson v. Bullock, 236 So.2d 892 (La.App. 3d Cir. 1970). And, with respect to the item of appreciated value, this is no less a loss to the plaintiffs than the expenditures for repairs. For these nine months the plaintiffs were led to believe the sale would be consummated and at the end of that time, the market value of the same or a comparable house had risen by $3,600.00. This represents an economic loss which is incidental to the execution of the purchase agreement. If plaintiffs had not been contractually bound they could have earlier availed themselves of a more favorable market.

Turning to the claims for the additional rental and appreciated value which accrued after April 1977, these items must be treated differently.

Plaintiffs contend defendant is entitled, at most, to only one-half of the rental value since he was owner of only a one-half interest. We have already concluded that as to the rental value accruing before the contract became null and void, the defendant is entitled to the entire sum as an incident of the purchase agreement of which his children were not signatory. And, if we were to award him only one-half of that sum due to the split ownership, equity would require us to reduce by one-half the award to the plaintiffs for the improvements they made to the premises.

However, when we consider the rental value which accrued for the remaining twenty-six months of plaintiffs’ occupancy, it is obvious a different basis for recovery is involved. No longer is there a contract from which an incidental obligation arises. This subsequent obligation arises because plaintiffs were “unjustly enriched” at the owners’ expense by occupying the premises without any rent payment for the ensuing twenty-six months. Blair v. Diaz, 342 So.2d 1237 (La.App. 4th Cir. 1977); Thompson v. Bullock, supra. See also, Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). As co-owners, Dr. Coe’s children were deprived of their share of the rental value. It is true they did not make a claim but, nonetheless, plaintiffs urge the defendants’ lack of interest in pursuing recovery of the entire rental value. Although plaintiffs have not formally filed the peremptory exception raising the objection of no right of action, or interest in Dr. Coe to sue for more than one-half of this rental item, on our own motion we notice this defect. La. Code Civ.P. art. 927. Accordingly, we reject defendant’s reconventional demand for one-half of the rental value which accrued after April 1977. The total amount which accrued is $10,800.00 which includes three months at $350.00, twelve months at $400.00, and eleven months at $450.00. One-half of this sum, to-wit, $5,400.00 is due Dr. Coe.

Plaintiffs contend the property, over the entire period of thirty-five months, appreciated in value to the extent of $15,100.00, not the sum of $12,850.00 as testified to by Mr. Doiron. Not only are we satisfied with the validity of Mr. Doirbn’s estimate, this contention loses its relevancy because plaintiffs are not entitled to any loss represented by appreciated value accruing after April 1977 when the purchase agreement became null and void. During this latter period of time, the plaintiffs’ status in occupying the premises was that of a tenant. They were no longer parties to a purchase agreement as it had ceased to exist (became null and void). As tenants, there could be no claim for appreciated value and they lacked a contractual basis upon which to claim damages. Once the contract became a nullity under its own terms because of the inability of Dr. Coe to make the title merchantable within a reasonable length of time, other language in the contract relative to damages becomes meaningless.

Finally, we reject plaintiffs’ claim that they are entitled to damages for their mental anguish. This likewise falls with the resultant nullity of the contract even if there were otherwise a basis in law for the award, which we do not find under the facts and circumstances of this case. We also reject plaintiffs’ entitlement to attorney fees. These were provided for in the purchase agreement and since we have determined the contract became null and void, the contractual basis for the award of attorney fees ceased to exist. See, Starmount # 1 v. Klein, 396 So.2d 397 (La.App. 1st Cir. 1981); Simmons v. Hernandez, 287 So.2d 637 (La.App. 3d Cir. 1973), writ refused 1974.

In accordance with this opinion we conclude appellant, Dr. Relvert Coe, is entitled to the entire rental value of the property for a period of nine months ($3,150.00), and for one-half of the rental value of the property for the remaining period of twenty-six months ($5,400.00), a total of $8,550.00. The plaintiffs, David R. Williams and Marie T. Williams, are entitled to the value of the improvements and repairs to the property, and to the moving expense ($4,545.75); and are entitled to the increase in value of the property during the period prior to April 1977 ($3,600.00); a total of $8,145.75. These figures offset each other to the extent that Dr. Coe is entitled to a net award of $404.25.

Accordingly, we reverse the judgment of the trial court insofar as it decreed an award in favor of plaintiffs, David R. Williams and Marie T. Williams, and against defendant, Dr. Relvert Coe, and cast the defendant for all costs of the proceedings. We affirm that portion of the judgment fixing the expert witness fee of J. Russell Doiron and taxing it as costs.

We now render judgment on the recon-ventional demand in favor of plaintiff in reconvention, Dr. Relvert Coe, and against defendant in reconvention, David R. Williams, for the sum of $404.25, together with legal interest thereon from date of judicial demand until paid. In all other respects, the reconventional demand is dismissed.

Costs of court are to be paid one-half by appellant and one-half by appellees.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

      . Eric Harry Coe, Deborah Jean Coe, Alan Jason Coe and Tracy Ann Coe.

      . The writ of attachment was issued to vest the Louisiana court with jurisdiction over Dr. Coe (then a nonresident), in order to enforce an alimony judgment. The writ of fi. fa. was issued in connection with a judgment for past due alimony.

      .The court apparently accepted Mr. Russell Doiron’s opinion that Dr. Coe was entitled to $14,250 in rent for the 35 months plaintiffs occupied the home. Mr. Doiron also testified the house increased in value approximately $12,850 during this period.

      . The evidence establishes that at the time plaintiffs moved into the house they already had knowledge of Dr. Coe’s need to obtain powers of attorney to deal with his children’s proprietary interest.

      . In theory, it matters not whether we relate the itemized incidents to the purchase agreement or to what might be termed a subsequent verbal agreement to allow plaintiffs to move into the house pending the Act of Sale. The result would seem to be the same.

      6. Cf. La.Civ.Code arts. 2292, et seq., particularly arts. 2295 and 2299. The underlying theory of unjust enrichment derived from quasi contracts, absent another remedy at law, would seem to afford another basis for the treatment of the claims herein.

      . Although the expense for moving from the premises occurred long after termination of the purchase agreement, it is an incident of the contract since the consented occupancy during the life of the contract gave rise to this otherwise unneeded expenditure.

      . This amount, together with the $3,150.00 previously accruing, totals $13,950.00. This does not agree with the total of $14,250.00 arrived at by Mr. Doiron. We deem Mr. Doiron’s computation to be in error.

      . We find no merit in Dr. Coe’s claim for $5,000 representing repairs to the premises made necessary by deterioration during plaintiffs’ occupancy. Also, we reject that portion of Dr. Coe’s claim for rental value not hereinabove awarded.


author: CARTER, Judge:

text:
    Keith S. TEMPLET, et al. v. Levi C. JOHNS, et al.
    No. 14947.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Dennis C. Weber and Steve M. Marks, Baton Rouge, for plaintiffs-appellants Keith S. Templet and Ancil Paul Templet.
    Tim A. Tullos, Baton Rouge, for defendants-appellees Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges.
    John W. Perry, Jr., Baton Rouge, for defendant-appellee John Nicosia.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

Plaintiffs-appellants appeal the judgment of the trial court wherein the trial court recalled and vacated a prior order allowing a supplemental and amending petition to be filed against defendants-appellees, Levi C. Johns, Alberta Cain Johns, Harry D. Hodges, Bettye Jean Lewis Hodges, and further said judgment sustained the peremptory exception of prescription filed on behalf of defendant-appellee John Nicosia dismissing the plaintiffs’ suit as against Nicosia with prejudice.

FACTS

On June 24, 1980, appellants Keith S. Templet, wife of/and Ancil Paul Templet instituted suit against Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges, and “John Doe (Electrical Contractor)” for certain injuries that Keith S. Templet allegedly sustained on November 18, 1979. The original petition alleged that Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges were liable to plaintiff for the injuries she sustained since they were the “owners of the property” and as “employers of John Doe (Electrical Contractor)” for the negligent acts and omissions of said John Doe. Appellants’ petition alleged a solidary obligation on the part of all defendants.

Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges subsequently filed a motion for summary judgment which was heard on December 11, 1980, and on the same day a judgment was rendered and signed in favor of these four defendants dismissing plaintiffs’ suit as to these defendants with prejudice.

On January 26, 1981, with leave of court, plaintiffs filed an amending and supplemental petition which for the first time named “John Nicosia” as a defendant and further alleged that Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges were independently negligent and/or strictly liable as the owners of the premises for the loss occurred. Appellee-Nicosia, on July 28, 1981, filed a peremptory exception of prescription and on August 17,1981, the trial judge rendered judgment sustaining the peremptory exception of prescription and further said judgment recalled and vacated the order signed on January 27, 1981, allowing the supplemental and amending petition of plaintiffs to be filed as concerns all defendants but appellee-N icosia.

ASSIGNMENT OF ERRORS

Appellants contend that the trial judge erred as follows: 1) in recalling, on his own motion and after appellate delays, his earlier order allowing appellants’ amending petition to be filed subsequent to an unfavorable ruling on a motion for summary judgment; 2) in the alternative, if the trial judge could recall his order allowing amendment, all vested substantive rights must be restored and the parties put back in status quo.

Appellants contend that the trial judge’s vacating and recalling his previous order allowing appellants’ amending petition (after applicable appellate delays had expired) denied them substantive rights vested under La.Code Civ.P. arts. 1151 and 1153.

La.Code Civ.P. art. 1151 provides that a plaintiff may amend his petition without leave of court at any time before the answer thereto is served. It further provides that otherwise, the petition may be amended only by leave of court or by written consent of the adverse party. La.Code Civ.P. art. 1153 provides that when the action asserted in the amending petition arises out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Essentially, appellants contend that once the trial court signed the order allowing the supplemental and amending petition, even after summary judgment had been signed but appeal delays had not expired, the order allowing the supplemental and amending petition granted certain vested rights which alleviated any need to take an appeal in order to protect the plaintiffs’ claim. Appellants further contend that they relied to their detriment on the order and were inequitably prejudiced by the later judgment of the trial court recalling the order.

The first issue is whether the trial court can allow (order) the filing of a supplemental and amending petition filed against certain defendants (all but Nicosia), after summary judgment had been signed dismissing plaintiffs’ suit as concerns these defendants (again, all but Nicosia). Clearly under La. Code Civ.P. art. 1151, a plaintiff can only amend a petition that is in existence and pending at the time the amendment is filed. If there is nothing to amend, there can be no amendment and the order allowing same is invalid.

Appellants argue that since the appeal delays had not expired on the summary judgment, they had the authority to supplement and amend the petition since the summary judgment was not then final. La. Code Civ.P. art. 968 clearly provides that a summary judgment is final and carries the “. .. same effect as if a trial had been had upon evidence regularly adduced.”

After rendition of final judgment, the Code of Civil Procedure clearly spells out the rights of the appellants. They may either apply for new trial or appeal from an adverse judgment. No where in the Code is the amendment of a dismissed petition after final judgment allowed. A case very similar to the instant case is Johnson v. Walgreen Lousiana Co., 163 So.2d 830 (La. App. 4th Cir. 1964). In the Johnson case, plaintiff originally filed suit against two police officers and five corporate defendants alleging that she was assaulted by these officers in the parking lot of a shopping center. On May 24, 1963, one of the defendants, T. G. & Y. Stores, filed a motion for summary judgment and the judgment was granted on May 31, 1963. On June 4, plaintiffs obtained an order for a supplemental and amending petition signed by the judge of another division of the court. On July 8, T. G. & Y. Stores filed a rule to show cause why the order permitting the amending and supplemental petition should not be set aside. A similar rule was filed by Winn Dixie on August 12. On October 11, judgment was granted recalling and vacating the order allowing the supplemental and amending petition and on appeal, the court stated:

“Plaintiff clearly had no right to file the supplemental and amended petition as to Winn-Dixie after the rendition of the summary judgment in its favor. As to this defendant, plaintiff’s only recourse was an appeal from the summary judgment and that judgment has been considered above.”

The court further stated:

“The refusal of the Trial Judge to permit the filing of the supplemental and amended petition under LSA-CCP. art. 1151 and the subsequent order setting aside its filing in another Division of the Court were not erroneous. The supplemental petition contained no material allegations in aid of her cause.”

The La.Code Civ.P. provides that the only rights available to a party whose suit has been dismissed is to request a new trial or to appeal. It is abundantly clear that a trial court can not change or alter this by improvidently signing an order to allow the filing of a supplemental and amending petition. Since the trial judge in the instant case was without authority to sign an order allowing the supplemental and amending petition, he clearly had the authority (and in fact, was obliged) to correct his previous error by vacating and recalling the previous order. Clearly, this order had no affect whatsoever on appeal delays and could not retain the parties in the status quo. Further, there can be no detrimental reliance by anyone who fails to exercise clear and unambiguously stated rights as provided for in the La.Code of Civ. Procedure.

The instant case is clearly distinguishable from Montgomery v. American Motorist Insurance Co., 242 So.2d 45 (La.App. 2d Cir. 1970). In Montgomery, an oral judgment was rendered on May 26, 1969, sustaining exceptions of no cause of action and no right of action and allowing ten days for amendment. The judgment was silent as to whether or not the suit would be dismissed absent the amendment within the allowable period. On February 10, 1970, the plaintiff filed a supplemental and amending petition and on February 11, 1970, a formal judgment sustaining the exception of no right of action and no cause of action was signed. Our brethren of the Second Circuit held that a supplemental and amending petition filed with leave of court before judgment was signed on February 11, was proper. The reasoning was that the oral judgment of May 26, was an interlocutory judgment, and not appealable at all until it was finalized by the written judgment of February 11. Since the supplemental and amending petition was filed on February 10, with leave of court, it was timely and the initial allowance of same by the trial court should not have been vacated.

The next issue concerns whether the peremptory exception of prescription was properly sustained as concerns John Nicosia. In the original suit, one defendant was styled “John Doe (Electrical Contractor)” and the aforesaid party was not dismissed from the suit and not included in the summary judgment. Plaintiffs’ supplemental and amending petition (filed after the one year prescriptive period) substituted as a defendant John Nicosia in place of “John Doe”.

A suit brought against one debtor in solido interrupts prescription with regard to all. La.Civil Code art. 2097. However, the use of a fictitious name in a pleading does not interrupt prescription when subsequent thereto an amending petition is filed after the prescriptive period correcting and setting forth the true name of the defendant. Therefore, suit against “John Doe (Electrical Contractor)” did not interrupt prescription as concerns John Nicosia unless same was interrupted by other means. Schlumbrecht v. Executive Officers, Etc., 371 So.2d 389 (La.App. 4th Cir. 1979); Echelard v. Lambert, 374 So.2d 116 (La.App. 4th Cir. 1979); Shotts v. John Doe, 347 So.2d 318 (La.App. 4th Cir. 1977).

The trial judge correctly stated that inasmuch as the supplemental and amending petition had no legal effect insofar as the defendants who had previously been dismissed under the summary judgment (Levi C. Johns, Alberta Cain Johns, Harry D. Hodges and Bettye Jean Lewis Hodges) we must now consider the legal effect of the supplemental and amending petition in regard to defendant Nicosia.

The suit originally named “John Doe (Electrical Contractor)”, a fictitious person. The suit naming Nicosia as a defendant was filed after the one year prescriptive period. In Shotts, supra and Schlumbrecht, supra, it was established that a tort action against an individual defendant not joined until one year after prescription had expired was barred when in the timely original petition only a fictitious name was used to designate the defendant. Since the supplemental and amending petition was invalid from its inception and had no legal effect, the judgment dismissing the suit as concerns all defendants but Nicosia is now final. We have the same factual situations as found in Shotts and Schlumbrecht, supra, viz. original suit against “John Doe (Electrical Contractor)”, supplemental and amending petition naming John Nicosia after prescription had run.

Prescription is not interrupted as concerns a true defendant when a fictitious defendant is so styled in a timely filed petition. Since the supplemental and amending petition was invalid from its inception as against all defendants but Nicosia, and was properly vacated and recalled (as concerns all but Nicosia), the trial court was correct in sustaining the peremptory exception of liberative prescription as concerns John Nicosia.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: CARTER, Judge.

text:
    Bertha BATISTE, et al. v. Drexel COOPER, et al.
    No. 14952.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Joseph A. Gladney, James R. Murray, Baton Rouge, for plaintiffs-appellees Bertha Batiste and Joseph Jerry Batiste.
    Robert D. Hoover, Baton Rouge, for defendants-appellants Drexel Cooper and Hartford Acc. and Indem. Co.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

Appellant Drexel H. Cooper appeals the trial court’s sustaining of an exception of prescription filed by Allstate Insurance Company, appellee.

Bertha Batiste and Joseph Jerry Batiste, plaintiffs, on March 6, 1981, filed suit against Drexel Cooper, defendant-appellant and his insurer, Hartford Accident and Indemnity Company, for personal injuries and property damages sustained in a two-vehicular intersectional accident which occurred on July 17, 1980. Allstate Insurance Company, property damage insurer of the Ba-tistes’, filed a petition of intervention on July 31, 1981 to protect its subrogated rights. On August 17, 1981, Drexel Cooper and Hartford Accident and Indemnity Company filed an answer to the petition of intervention, and in the same pleading Drexel Cooper asserted as “intervenor” a reconventional demand against Allstate. Allstate subsequently filed an exception of prescription to the intervention and recon-ventional demand and on October 2, 1981, the trial court sustained the exception of prescription dismissing the intervention and reconventional demand of Cooper.

The sole issue on this appeal is whether the reconventional demand asserted by “intervention” of appellee Cooper against appellant Allstate is barred by prescription.

For purposes of clarity, the chronology is succinctly set forth as follows:

July 17, 1980 — Date of accident March 6,1981 — Batistes’ suit against Cooper
July 31, 1981 — Allstate intervention August 17, 1981 — Cooper and Hartford answered intervention and Cooper through intervention asserted recon-ventional demand against Allstate.
October 2, 1981 — Exception of prescription filed by Allstate as to reconven-tional demand asserted by intervention of Cooper is sustained.
La. Code Civ.P. art. 1031 provides:
“A demand incidental to the principal demand may be instituted against an adverse party or against a third person.
Incidental demands are reconvention, intervention, and the demand against third parties.”
La. Code Civ.P. art. 1067 provides:
“An incidental demand is not barred by prescription or peremption, if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of third party defendant within ninety days from service of process of the third demand.”

Appellant contends that since an intervention is somewhat a unique procedural device, it should be considered a main demand. In support of this, appellant argues that an intervention remains viable if pleaded prior to a plaintiff’s own dismissal of the principal action; in certain instances even a dismissal of the principal action may not necessarily result in a dismissal of the intervention; and, an intervention can be tried separately and decided independently of the principal action. He further contends that the claim for property damages is a separate claim, and should be considered a main demand and not an incidental demand as it is labeled in La. Code Civ.P. art. 1031. Appellant contends that if Allstate’s intervention was timely, the appellant had ninety days to file a reconven-tional demand “or intervention” to assert any claim which Cooper might have had against Allstate, citing La. Code Civ.P. art. 1067.

Regardless of the uniqueness of the intervention as a procedural device, it is clearly an incidental demand and not a main demand. La. Code Civ.P. art. 1031, supra. Since interventions and reconven-tional demands are incidental demands and not main demands, La. Code Civ.P. art. 1067 provides the applicable law.

La. Code Civ.P. art. 1067 provides that an incidental demand is not barred by prescription or peremption if two requisites are present.

(1) That the incidental demand was not barred at the time the main demand was filed, and
(2) The incidental demand is filed within ninety days of service of the main demand, or in a third party action within ninety days of service of the third party demand.

The main demand in this proceeding was filed by Batiste on March 6, 1981. Allstate intervened on July 31, 1981. Cooper and Hartford answered the intervention and Cooper reconvened against Allstate on August 17, 1981. Therefore, applying the law as set out in La. Code Civ.P. art. 1067 to the instant case, it is clear that the first requirement is met; namely, that the incidental demand (intervention and reconvention) was not barred at the time the main demand was filed (accident July 17, 1980, and main demand filed March 6, 1981). However, the second.requisite of Art. 1067 is clearly absent; namely, that the incidental demand (intervention and reconventional demand) was not filed within ninety days of service of the main demand. Since the accident occurred on July 17, 1980, appellant’s intervention and reeonventional demand did not fall within the requirements of Art. 1067, more than one year had elapsed from the date of the loss, and the action had prescribed.

In essence, appellant seeks to have this court amend La. Code Civ.P. art. 1067 to read as follows:

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of such main demand or in the case of a third party defendant within ninety days from service of process on third party demand. “Or in the ease of an intervention or reeonventional demand within ninety days of service of process of the intervention or reeonventional demand.” (Emphasis added)

This we cannot do and such an amendment is the sole prerogative of the Louisiana legislature.

Appellant’s claim that Allstate is a new party to this litigation (having intervened on July 31,1981) is not supported by the jurisprudence or statutory law.

Allstate had paid the Batistes’ for the physical damage to their automobile and Allstate was subrogated “of right” to the Batistes’ identical claim for physical damage set forth in the original petition and main demand. Allstate’s intervention is nothing more than an assertion of the sub-rogated rights it received by paying for the physical damages sustained. La. Civil Code art. 2161 provides in part as follows:

“Subrogation takes place of right:
(3) For the benefit of him who being bound with others, or for others for the payment of the debt had an interest in discharging it . .. . ”

In Volume Shoe Corp. v. Armato, 341 So.2d 611 (La.App. 2nd Cir. 1977) the courts held that the hazard insurer for Volume Shoe, by paying for damages to Volume Shoe’s subsidiary, was legally subrogated to the rights of the subsidiary upon payment to it of the. insurance proceeds by virtue of the provisions of La. Civil Code art. 2161.

In oral argument, appellant submitted that the recent case of Washington, et al. v. Goldate, et al., 411 So.2d 1224 (La.App.) of the Fourth Circuit Court of Appeal supports his position. We have carefully examined this well reasoned opinion of our brethren of the Fourth Circuit and we are in agreement with same. However, it does not support appellant’s position.

In Washington, supra, two issues were presented, namely the right of a person asserting a property damage claim to intervene in a personal injury suit, and, whether the claim of the intervenor asserting property damages had prescribed. The court upheld the right of the intervenor to assert his property damage claim in the personal injury suit, and further held that his claim had not prescribed. Basically, the interve-nor’s claim was asserted within ninety days after service of the main demand on one defendant, but after ninety days had elapsed since service of the main demand on the remaining defendants. The court held that an intervention filed within ninety days of service of the main demand on any of the defendants, including the last to be served, is proper.

In the instant case, the intervention and reconventional demand .was not served within ninety days of service of the main demand on any defendant, was filed more than one year after the loss occurred, and was therefore prescribed.

For the above and foregoing reasons, the judgment of the trial court sustaining the exception of prescription is affirmed at appellant’s costs.

AFFIRMED.


author: LANIER, Judge.

text:
    LOUISIANA STATE TROOPERS ASSOCIATION, INC., et al. v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    No. 14953.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Bryan E. Bush, Jr., Baton Rouge, for plaintiff-appellant Louisiana State Troopers Ass’n, Inc., et al.
    William C. Toadvin, Staff Atty., Baton Rouge, for defendant-appellee Louisiana State Police Retirement Bd.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for a declaratory judgment to declare unconstitutional portions of La. R.S. 40:1427 pertaining to the acquisition of service credits in the Louisiana State Police Retirement System, (hereinafter called System). The trial court rendered judgment declaring the contested portions of the statute constitutional. This devolutive appeal followed.

I. CONSTITUTIONALITY OF La.R.S. 40:1427

A. CLAIMS. OF JONES, McLAIN AND SMITH, LaR.S. 40:1427(B)(3)

In August of 1977, Sergeant J. W: Smith, Sergeant Barney D. McLain, and Senior Trooper Herman L. Jones purchased service credits not exceeding three years each in the System for prior service in City Police or Sheriff’s Departments in Louisiana. They were each required to purchase the service credit at a contribution rate of seventeen percent (17%). These troopers argue that La.R.S. 40:1427(B)(8) “is in violation of the equal protection clause of the United States Constitution and Article 1, Section 2 of the Louisiana Constitution, in that the plaintiff’s (sic) rights to purchase prior service credits in any law enforcement agency are limited to those earned within the last three (3) years, unlike before, and are calculated with an inflated contribution rate of SEVENTEEN (17%) PERCENT.”

It was stipulated by the parties that there has never been authority in the law to allow State Troopers to purchase more than three (3) years of service in any city or municipal police department or any sheriffs department in Louisiana. It was further stipulated by the parties that “employees purchasing prior service credits for other state service have a rate of pay back of FIVE (5) PERCENT, and are not limited as to the number of years of credit they may purchase.”

Prior to the effective date of Act 229 of 1970, no member of the System was allowed to purchase prior time served in a city or municipal police department or a sheriff’s department in Louisiana. Since September 10,1978, no member of the System has been allowed to purchase this type of service credit. Act 751 of 1977. During the period from the effective date of Act 229 of 1970 until September 9, 1978, members of the System were allowed to purchase up to three (3) years of prior time served in a city or municipal police department or a sheriff’s department in Louisiana upon payment of an employee’s share of five percent (5%) of the then current salary. From 1977 to September 9, 1978, these credits could be purchased with a payment of seven percent (7%) as the employee’s share and not less than seven and one-half percent (7V2%) nor more than ten percent (10%) of current salary as the employer’s share, provided that during 1977 and 1978 the applicant must have been a State Police employee on December 31, 1976.

B. CLAIM OF FINALET, La.R.S. 40:1427(B)(1)

Marta 0. Finalet was employed with the Department of Public Safety as a noncom-missioned officer from June 5, 1968, through June 30,1974, when she terminated her employment. As a noncommissioned officer, she was not eligible for membership in the System. La.R.S. 40:1424. She was reemployed by the Department of Public Safety in December of 1974 as a commissioned law enforcement officer of the Division of State Police, and became eligible for membership in the System.

Prior to 1973, members of the System who had twelve (12) years of service as a State Police Officer could purchase prior service credit in any agency or department of the State upon the payment of five percent (5%) of the salary earned. Act 32 of 1951 Extraordinary Session; Act 385 of 1952; and Act 129 of 1960. Since the effective date of Act 137 of 1973, amending La.R.S. 40:1427(B)(1), there has been no authority in the law to allow State Police Officers to purchase any service in any department or agency of the State.

When Finalet was rehired in December of 1974, she was not allowed to purchase service credits for the prior noncommissioned officer service that she had with the Department of Public Safety. Finalet argues that this legislation constitutes a violation of equal protection, that it is an arbitrary and capricious legislative change of guidelines that affects a vested property right, and that she was induced to return to work with the State Police by promises Of the availability of prior service credit purchases and, therefore, to deny her those purchases would be unconstitutional.

C. APPLICABLE LAW

It is well settled in Louisiana that a public employee’s right to retirement benefits does not become vested until eligibility for retirement is obtained. Prior to the achievement of retirement eligibility, the right of the employee is inchoate and the details of a contributory retirement system, such as rate of contribution, benefits, length of service and age requirements, may be modified by the legislature to the prejudice of the employee. Patterson v. City of Baton Rouge, 309 So.2d 306 (La.1975); Faulk v. State, 382 So.2d 992 (La. App. 1st Cir. 1980); State, ex rel. Murray v. Board of Trustees of Police Pension Fund for City of New Orleans, 259 So.2d 613 (La.App. 4th Cir. 1972); Adolph v. Sewerage & Water Board Pension Committee, 202 So.2d 664 (La.App. 4th Cir. 1967); Young v. Department of Highways, 160 So.2d 391 (La.App. 1st Cir. 1964); Bowen v. Board of Trustees of Police Pension Fund, 76 So.2d 430 (La.App.Orl.1954). The rationale for this rule is found in the Bowen case at page 435 of the Southern Reporter as follows:

“But underlying all retirement systems of the class we are now discussing is the legislative object, as well as that of the member employee, that a substantial reserve be built up so that the actuarial soundness of the plan cannot be questioned. This factor is an important one in the relation between state, city, and county, as employer, and the employee member, with respect to retirement pay. If a direct attack on it, such as has been made in the present case, is justified, or a weakness in it manifested through actual trial is found to exist, the remedy or relief rests clearly within the relation between employer and employee contemplated by the legislative system for retirement pay. The Legislature may from time to time, within the confines of that established relation, alter, change, amend, and render intact the actuarial soundness of the system so as to strengthen its fibers in any way it sees fit. Changes in details, such as length of service required, contributions needed, and age requirements, to keep the fund on sound actuarial practices, are essential. Flexibility in component parts is a paramount necessity to guard against changed conditions and to permit keeping abreast with actuarial science.”

Thus, it has been held that the legislature can validly enact laws to change the inchoate retirement rights of employees to (1) increase the required length of service from sixteen years to twenty years (Bowen), (2) offset disability benefit payments under a retirement system by the amount of workmen’s compensation benefits received for the same disability (Patterson), (3) require an employee who has membership in two public retirement systems to choose one and require that the system dropped refund all contributions at the rate of 5% simple interest (Faulk), and (4) change an alternate retirement program of age 70 or 15 years service to a mandatory retirement at age 65 (Young).

Appellants argue that the cases of Sims v. Sims, 358 So.2d 919 (La.1978), T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975); and Thrash v. Thrash, 387 So.2d 21 (La.App. 3rd Cir. 1980) stand for the proposition that the right to retirement benefits becomes vested prior to the achievement of eligibility. This analysis is not accurate. Those cases hold that upon dissolution of the community of acquets and gains existing between spouses, each of the spouses has an interest in the right (inchoate or vested) of the spouse who is the member of a retirement system proportioned on the amount of the community contributions made to the retirement system during the existence of the community. These cases do not overrule or modify the rule of law established by Bowen and its progeny that rights in retirement systems do not become vested until eligibility is achieved.

D. CONCLUSION

It is well settled in the law that Acts of the legislature are presumed to be constitutional and the burden is on those who would challenge them to show that they are not. Burmaster v. Gravity Drainage District No. 2 of Parish of St. Charles, 366 So.2d 1381 (La.1978); Webster Parish School Board v. Guste, 391 So.2d 913 (La.App. 2nd Cir. 1980); State In Interest of Alexander, 384 So.2d 1003 (La.App. 4th Cir. 1980); Faulk v. State, supra; Bellon v. Deshotel, 370 So.2d 221 (La.App. 3rd Cir. 1979). The legislature may legitimately make changes and modifications in the details of retirement systems to the prejudice of employees prior to the time that they have achieved eligibility for the purpose of improving the actuarial integrity of the system. We believe that the Acts of the legislature in the instant case withdrawing entitlement to purchase service credits for prior employment and increasing the percentage of payment required to purchase credits are legitimate acts for improving the actuarial integrity of the System and are not unconstitutional. Trent v. State, 400 So.2d 1178 (La.App. 1st Cir. 1981). These Acts are indiscriminately applicable to all persons in the given classification and have a reasonable relation to a legitimate State interest. Accordingly, we declare that La.R.S. 40:1427(B)(1) and (3), and the amendments thereto, are constitutional and valid.

II. CLAIM FOR VACATION AND WEEKEND MILITARY RESERVE AND NATIONAL GUARD DUTY

Since December 8, 1980, the System has allowed the purchase of service credit for time served on active duty in the National Guard and the Reserves. La.R.S. 40:1427(B)(2). The System does not allow the purchase as service credit time the two week “summer” active duty and the weekend active duty in the Reserves or National Guard. Appellants admit that attendance during the summer is on special military leave and that the retirement system members continue to earn service credits in the retirement system as if regularly employed. They argue, however, that this analogy does not apply to special military duty on weekends.

In his reasons for judgment, the trial judge observed as follows:

“Attendance during the summer and on weekends is on special military leave, and the members continue to earn service credit in the retirement system as if regularly employed. To recognize this time as military time for current members would be to allow such members to reap a double credit. The Court therefore holds that times served on summer and weekend active duty in the Louisiana National Guard and the Reserves does not have to be included in the computation of service credit.”
H. * * * * *

We believe that the trial judge’s ruling is correct.

III. ESTOPPEL

Appellants argue that because the State authorized the purchase of prior service credits from other agencies, they were induced to join the System and/or to remain in the System, and that the State should be estopped from subsequently withdrawing these entitlements after a System member has acted to his detriment on this inducement. All of the matters here at issue are controlled by positive written law. It is well settled that equitable considerations and estoppel cannot be permitted to prevail when in conflict with positive written law. La.C.C. art. 21; Packard Florida Motors Co. v. Malone, 208 La. 1058, 24 So.2d 75 (La.1945); Chambers v. Parochial Employees’ Retirement System of Louisiana, 398 So.2d 102 (La.App. 3rd Cir. 1981), writ denied, (La.1981); Frazer v. Day, 292 So.2d 870 (La.App. 1st Cir. 1974); Port Finance Co. v. Ber, 45 So.2d 404 (LaApp.Orl.1950).

For the foregoing reasons, the trial court judgment is correct and it is affirmed at the appellants’ costs.

AFFIRMED.

      . La.R.S. 40:1427(B)(3) provides:
      “B. In computing service earned, members of this pension and retirement system shall be credited with all time served as follows:

      (3) Not to exceed three years of service as an employee in any city or municipal police department or any sheriff’s department in Louisiana or as an employee of the Department of Public Safety in the capacity as a sworn, commissioned law enforcement officer, by any state police employee who was such an employee on December 31, 1976, provided that application and payment of required contributions are made prior to September 9, 1978. Computation of contribution for purchase of service credit by commissioned officers of the Department of Public Safety, office of state police will be computed as follows:
      Computation base will be monthly salary of the employee at the date of request. Total base will be computed at this monthly salary times the months applied for up to thirty-six. For each year, or portion thereof of credit, employee shall pay an amount equal to the current annual, or pro rata portion thereof, employee contribution, plus the employer percentage of this base, computed as follows:
      Employer percentage is to be computed by relation of total funds paid into pension fund by all state sources and total salaries paid to all commissioned officers during the fiscal year immediately preceding request date. This percentage is not to exceed ten percent nor be less than seven and one-half percent.”

      . La.R.S. 40:1427(B)(1) provides:
      “B. In computing service earned, members of this pension and retirement system shall be credited with all time served as follows:
      (1) Members of the division of state police shall be credited with service credit in the following manner:
      Any commissioned state police officer who was transferred or assigned by the superintendent of the division of state police to perform police duty at any war plant or at the establishment of any employer who, in the opinion of the superintendent of state police, contributed to the war effort during World War II, shall have credited to his service record in the department all of the actual time served by him at such plant or establishment.”


text:
    William J. GUSTE, Jr., Attorney General, et al. v. Joseph H. BURRIS, Legislative Auditor.
    No. 14957.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Writ Granted Oct. 1,1982.

      David E. Henderson, Asst. Atty. Gen., Baton Rouge, for plaintiff-appellant William J. Guste, Jr., Atty. Gen., For The State of La.
    Robert E. Harroun, III, Legal Counsel to Legislative Auditor, Baton Rouge, for defendant-appellee Joseph H. Burris, Legislative Auditor, for The State of La.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This is a suit for declaratory judgment brought by the Attorney General of the State of Louisiana pursuant to La.R.S. 33:2201 et seq. for law enforcement officer survivor benefits on behalf of Pearl Johnson Courville, the widow of a municipal police officer killed in the line of duty and their son, Ricky Joseph Courville. From a judgment denying plaintiff’s claim for benefits, plaintiff has appealed.

The issue on this appeal is whether the decedent, at the time of his death, was a “law enforcement officer” within the meaning of La.R.S. 33:2201 so as to enable his surviving spouse and dependent child to the survivor benefits afforded therein.

FACTS

It is not disputed that Officer Julius T. Courville was shot and killed while on routine patrol for the Henderson Police Department on August 26, 1978. Pearl Johnson Courville and Ricky Courville are the surviving spouse and dependent child of Officer Courville. Officer Courville suffered death as the result of an injury arising out of and in the course and performance of his official duties as a municipal police officer. He had been employed by the Town of Henderson from August 24, 1978 until his death on August 26, 1978. Having only been employed as a municipal police officer for three days, he was not receiving state compensation at the time of his death.

SPECIFICATION OF ERRORS

The appellant argues that the trial court erred as follows:

1. In holding that the widow and minor child of a municipal police officer killed in the course and scope of the performance of his official duties were not entitled to the survivor benefits provided for in La.R.S. 33:2201 et seq.
2. In construing R.S. 33:2201(B) in a manner which renders a portion of it meaningless.
3. In construing R.S. 33:2201(B)(3) in a manner which ignores the spirit of the statute and which produces harsh, unjust and absurd results.
4. In not deciding the case on the basis of the law existing at the time of its decision.

La.R.S. 33:2201, prior to amendment by Act 382 of 1979, provides in pertinent part as follows:

“A. It is hereby declared to be the public policy of this state, under its police power, to provide for the financial security of surviving spouses and dependent children of law enforcement officers where such officers suffer death as a result of any injury arising out of and in the course of the performance of his official duties as such officer, or arising out of an activity, while on or off duty, in the protection of life or property.
B. Law enforcement officers, within the meaning of this Section, shall include:
(3) Those municipal police officers to whom state compensation is or may be paid as provided by law.” (Emphasis added)

La.R.S. 33:2201(B)(3) necessarily refers to La.R.S. 33:2218.2 which provides in pertinent part as follows:

“A. In addition to the compensation now paid by any municipality included in this Subpart to any police officer, every police officer employed by any municipality which employs one or more police officers who devotes his full working time to law enforcement shall be paid by the state extra compensation as follows:
(1) One hundred fifty dollars per month for each full-time municipal law enforcement officer who has completed or who hereafter completes one year of service.
(2) One hundred seventy-five dollars per month for each full-time municipal law enforcement officer who has completed or who hereafter completes three years of service.
(3) Two hundred dollars per month for each full-time municipal law enforcement officer who has completed or who hereafter completes six years of service.”

The trial court held that Officer Courville did not fall within the class of “law enforcement officer” so as to entitle his survivors to benefits under La.R.S. 33:2201. The trial court further held that La.R.S. 33:2218.2 sets out those municipal police officers to whom state compensation is or may be paid and that, defendant did not fall within any other categories outlined. The survivors were held not to be eligible for benefits. We agree.

Although decedent was a municipal police officer at the time of his death and died in the course of performance of his official duties, under the express language of La. R.S. 33:2201(B)(3) he did not fall within any of the categories set forth. He was not a municipal police officer to whom state compensation was or could be paid.

Under La.R.S. 33:2218.2, a police officer could only be paid state compensation after he completed one year of service assuming that he fell within the classification requirement set forth in paragraph (c) of that section.

La.Civ. Code art. 13 requires, with respect to the application and constructions of laws, that when a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. We have consistently held that when a law is free and clear from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Had the legislature intended to include decedent in the class of “law enforcement officers,” it could have easily done so with appropriate language. In 1979, it so included all “municipal police officers employed on a full-time basis,” by Act 382 of 1979.

Appellant next contends that the trial court erred in construing La.R.S. 33:2201(B) in a manner which renders a portion of its meaningless. In essence, appellant contends that the phrase “or may be paid” in La.R.S. 2201(B)(3) refers to officers not yet having completed one year of service, but includes those that would be eligible after having completed one year of service. Stated another way, appellant contends that this section applies not only to municipal officers actually receiving pay and municipal officers who would be eligible for said pay, but also to municipal police officers who at the end of one year would be eligible for pay. Further, appellant contends that the phrase “may be paid” can not be held to address police officers fitting into the class of officers entitled to state supplemental pay and which have completed one year of service because La.R.S. 33:2218.2 mandates that the officer shall be paid by the state extra compensation. These arguments overlook the clear and unambiguous provisions of La.R.S. 33:2201 and La.R.S. 33:2218.2. Although this last mentioned article mandates the state to pay to all full-time municipal law enforcement officers who have completed at least one year of service and who fall within the class enumerated in Section 2(c), there could be numerous reasons for the state not to pay same. The officer could refuse to accept the pay, through error an eligible officer could be omitted from the list of payees, etc. In such cases, although not being paid compensation, the officer would still have been a law enforcement officer under the “or may be” provision. This provision is not meaningless and was intended to afford benefits to the survivors of municipal police officers who were otherwise entitled to be paid state compensation, but, for whatever reason were not.

Appellant contends that the trial court’s interpretation of La.R.S. 33:2201 was such as to render certain portions of it meaningless and said interpretation violated the general rule of statutory interpretation requiring the constructing of a statute so as to avoid harsh, unjust or absurd results. Appellant contends that since a police cadet of a political subdivision when assigned to Police duty and performing police duties would be covered under the act. However, once the cadet graduates and if employed by a municipality and (under the act then in existence) if killed while performing official duties would not be covered under the act for the first year.

It is clear that the intent of the applicable acts was to provide for the financial security of surviving spouses and dependent children of law enforcement officers. At this period of time, the legislature had seen fit to limit the definition of “law enforcement officers,” to those individuals enumerated in Subparagraphs 1-12 of La.R.S. 33:2201(B). At the time of Officer Cour-ville’s death, unfortunately, the law did not include him and did not include any other municipal police officer who had not completed one year of service to become eligible for state compensation. Commendably, the legislature has since substantially amended these statutes to include all municipal police officers employed on a full-time basis.

As concerns the applicability of these statutes to police cadets, certainly this was clearly within the legislative function. However, this addition can not affect non-legislative changes to other parts of the statute. See La.Civ. Code art. 13. Even if the legislature erred in expressing its intent, it is not the function of the judicial branch to legislate, but rather the legislature itself. See Gill Trailer & Equip. Rentals, Inc. v. S. D ’Antoni Inc., 282 So.2d 714 (La.1973) and Rada v. Administrator, Div. of Emp. Sec., State, D. of L., 319 So.2d 460 (La.App. 4th Cir. 1975).

Counsel for appellant contends that Act 382 of 1979 which became effective September 7, 1979, should be applied retroactively since appellant contends that Act 382 was merely a clarification provision and at most a curative or remedial statute designed to insure families of law enforcement officers killed in the line of duty within the first year of service a right to their claim to survivor benefits. Appellant further cites the case of Fullilove v. U.S. Casualty Company of New York, 129 So.2d 816 (La.App. 2d Cir. 1961) to support his contention that the court should decide a case in accordance with the law existing at the time of its own decision “... even though, by doing so, it requires the reversal of a judgment which was proper at the time of its rendition.”

In Fullilove, suit was filed against various parties including the State of Louisiana. Under the Louisiana Constitution then in effect, legislative immunity of the state could not be waived by the legislature. After the decision of the lower court, the Constitution was subsequently amended allowing the legislature to waive immunity for suit. The amendment of La.Const. art. Ill, § 35 (1921), expressly provided that the legislature had authority to authorize suit against the state, to waive immunity of the state from suit and liability, and expressly provided for retroactive application of the amendment. In Fullilove, the court stated:

“The 1960 amendment operates retrospectively; and it was so intended. This fact does not, however, render it unconstitutional. The Constitution is the supreme law, to which all legislative acts and all ordinances, rules, and regulations of creatures of the Legislature must yield.”

The court further held that in view of the clear constitutional amendment, the court was to apply the law as set forth in the Constitutional amendment, even though different from the law as of the time that the injuries and death were sustained. From the above, it is clear the Fullilove is not appropriate to the instant case.

Officer Courville was killed August 26, 1978 and suit was filed on August 10, 1979. Act 382 of 1979, amending La.R.S. 33:2201(B)(3) took effect on September 7, 1979. Judgment was signed by the trial judge on July 15, 1981.

The trial court concluded that Act 382 was not in effect at the time of decedent’s death and in the absence of a specific provision within the amendment to the contrary, concluded that it did not act retroactively. The trial court held that the law in existence at the time of decedent’s death (the law prior to the 1979 amendment) was to be applied in this case and we agree. The general principle of non-retroactivity of laws is set forth in LSA-C.C. art. 8 which provides:

“A law can provide only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”
La.R.S. 1:2 provides:
“No Section of the Revised Statutes is retroactive unless it is expressly so stated.”

This general rule of prospective application applies only to substantive law as distinguished from merely procedural or remedial laws which are to be given retroactive effect in the absence of language showing a contrary intention. Lott v. Haley, 370 So.2d 521 (La.1979); Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980). Additionally, any statute can expressly provide for retroactive application provided it does not disturb constitutionally vested rights. Bostick v. Intern. Minerals & Chemical Corp., 360 So.2d 898 (La.App. 2d Cir. 1978).

La.Const. art. Ill, § 19 provides:

“All laws shall take effect on the 16th day after final adjournment of the session in which they were enacted and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.”

Act 382 of 1979 amending La.R.S. 33:2201(B)(3) only stated, “All municipal police officers employed on a full-time basis,” and did not expressly provide for retroactive application. It also did not specify an earlier effective date. Clearly, had the legislature intended the amendment to apply retroactively, it could have easily so provided in the amendment; this it did not do.

The distinction between substantive and procedural laws is relatively clear. If a statute merely prescribes the method of enforcing a right which previously existed, or maintaining redress for the invasion of rights, it is classified procedural. However, if the act creates a new obligation where no such obligation existed before, it is substantive. Manual v. Carolina Casualty Insurance Company, 136 So.2d 275 (La.App. 3rd Cir. 1961), certiorari denied.

Finally, Act 382 of 1979 can not be considered a “remedial” statute or one to correct an “inadvertent error”, since a remedial act only makes a procedural change in the law and is primarily a law relating to procedure or the remedy that may be employed to enforce or protect a right which already existed. Since this act made a change in the substantive law of the state (whether to correct errors in prior laws or simply to amend the law for the public good) such an act must be construed to operate prospectively only unless the words employed show a clear intention that the statute should have a retroactive effect. Manual case, supra. Fullilove v. U. S. Casualty Company of New York, supra.

The trial judge properly applied the law in effect at the time of decedent’s death. The law was clearly written, did not provide for retroactive effect, and did not include decedent at the time of his death.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Act 384 of 1980 amended the above provision to reduce the monthly payment from $150.00 to $140.00 and to reduce the tenure requirement from one year to three months.

      . Act 382 of 1979 as previously set forth, amended La.R.S. 33:2201(B)(3) to read as follows:
      “All municipal police officers employed on a full-time basis.”