author: PRICE, Judge. SEXTON, Judge,

text:
    Alice Heard MORRIS, Plaintiff-Appellant, v. John C. MORRIS, Defendant-Appellee.
    No. 15043-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.
    Writ Denied April 15, 1983.

      Paul Henry Kidd, Jr., Kidd and Kidd, Monroe, for plaintiff-appellant.
    James D. Sparks, Monroe, for defendant-appellee.
    Before PRICE, HALL, MARVIN and JASPER E. JONES and SEXTON, JJ.
   PRICE, Judge.

Plaintiff appeals a judgment declaring her right to alimony pendente lite abated and dismissing with prejudice her rule to make executory past due alimony payments. On reargument before a five-judge panel as required by Art. 5, § 8(B) Louisiana Constitution, we reverse and remand.

Plaintiff filed suit for separation from bed and board against defendant in the Fourth District Court, Ouachita Parish. As an incident of that action, judgment was rendered on July 15,1981, ordering defendant to pay alimony pendente lite of $1,300 per month to plaintiff. That judgment was never appealed by either party. No further action has been taken in the separation proceeding.

Morris filed suit for divorce against his wife, based upon their continuous separation for a period of one year or more, by a separate proceeding instituted in the Fifth District Court, Richland Parish. Judgment for Morris was rendered on November 30, 1981, and Mrs. Morris perfected a suspen-sive appeal from that judgment on December 10, 1981. Although a “no-fault” divorce, the judgment denied the wife permanent alimony due to her fault. The only question raised on appeal by Mrs. Morris was the failure of the trial court to award her post-divorce alimony. The trial court’s judgment was affirmed by this court on September 20, 1982.

Meanwhile, on December 15, 1981, plaintiff filed a rule in the Fourth District Court seeking to make executory past due alimony pendente lite which had accrued since November 30, 1981. Defendant answered that rule and filed exceptions of no right and no cause of action contending no alimony pendente lite was owed because the rendition of the divorce judgment by the Fifth District Court had the effect of abating the pendente lite alimony judgment. The trial court sustained defendant’s exception and dismissed the rule with prejudice.

The sole issue presented on this appeal is whether or not the judgment granting pen-dente lite alimony was abated by the rendition of the subsequent divorce judgment which denied Mrs. Morris permanent alimony-

Defendant, as well as the trial court, primarily relied upon the cases of Lewis v. Lewis, 404 So.2d 1230 (La.1981); Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir. 1975); and Malone v. Malone, 282 So.2d 119 (La.1973). We do not find these cases to be controlling of the issue presented here.

Lewis, supra, and the authorities cited therein, are factually inapposite to this case because in each of those instances all applicable delays for seeking appellate review had expired prior to the issue of abatement being raised. In the case at bar a timely appeal was taken and was pending at the time defendant sought to show abatement. Therefore, the divorce judgment was not final and definitive and could not act to abate the separation proceeding or the judgment rendered therein granting plaintiff alimony pendente lite. We find no inconsistency between our holding in this case and the rule enunciated in Lewis and the cases cited therein.

We have no quarrel with the holding of Malone, supra, which defendant cites in support of his contention that the pendente lite award has abated. However, that case does not support defendant’s position. Malone simply holds that under the provisions of LSA-C.C.P. arts. 3942 and 3943 only a devolutive appeal may be taken from an alimony judgment and it must be perfected within the thirty day delay period provided by the Code of Civil Procedure. In this case pendente lite alimony is at issue. That award was made by the judgment rendered on July 15, 1981. Defendant never took any appeal to question that judgment. The right plaintiff currently seeks to enforce springs from that judgment and the pending separation suit. Since the divorce judgment may be subjected to further appellate review, it is not final and definitive and has not acted to abate the separation proceeding or its incidental alimony judgment. Therefore, plaintiff’s right to collect pen-dente lite alimony accruing after November 30, 1981, remains intact.

Defendant contends that since the divorce judgment denied plaintiff permanent alimony, and since only a devolutive appeal may be taken from that judgment under the holding of Malone, the denial of alimony to plaintiff pending appeal is executory. The denial of permanent alimony due to the wife’s fault does not affect the pendente lite award granted by the earlier judgment. Defendant cannot rely on the denial of permanent alimony in the not yet final and definitive divorce judgment to abate or terminate his wife’s right.

Defendant contends that Donica, supra, is dispositive of the issue before this court. However, we conclude that case misconstrues the holding of Malone which has been explained above. While correctly following the holding of Malone that an alimony judgment may not be suspensively appealed, the court in Donica fails to note the fact that it is dealing with two different judgments awarding two different types of alimony resting upon two separate and independent legal and theoretical bases. For that reason we decline to follow Donica.

The case truly dispositive of the issue is Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962). Therein it was held that alimony pendente lite awarded by judgment on a rule in a separation proceeding continues to accrue pending the final disposition of any appeal from that proceeding or a divorce decree subsequently rendered in connection therewith. We find nothing in Malone which convinces us this is no longer the rule and, apparently, we are not alone in this belief. Palama v. Palama, 338 So.2d 776 (La.App. 4th Cir.1976). Additionally, it should be noted that the Donica court has apparently adopted the rule set forth in Viser. Sumrall v. Sumrall, 393 So.2d 249 (La.App. 1st Cir.1980). Furthermore, the cases of Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979), and Frederic v. Frederic, 302 So.2d 903 (La.1974), while not factually congruent to the instant case, are indistinguishable in all critical aspects and consistent with the rule herein applied.

Defendant also cites a related line of cases, including Fellows v. Fellows, 267 So.2d 572 (La.App. 3d Cir.1972), and Worley v. Worley, 247 So.2d 254 (La.App. 3d Cir. 1971), for the proposition that the signing of a divorce judgment which contains provision for permanent alimony abates a previous award of pendente lite alimony. Those cases simply do not stand for that proposition. The language concerning abatement in those cases is dicta. The holding of each of those cases is that there exist two distinct bases for the obligations of permanent alimony and pendente lite alimony. Therefore, a spouse need not show a change in circumstances in order to be entitled to a higher or lower award of permanent alimony in a divorce judgment that he or she was receiving or paying as pendente lite alimony prior to divorce because the awards are based upon two separate judgments and theoretical foundations.

Defendant’s last contention is that, since plaintiff’s appeal from the divorce judgment deals only with the denial of permanent alimony, the divorce judgment is final and definitive insofar as it relates to the status of the parties. Therefore, he asserts, they are no longer man and wife and consequently, the obligation of penden-te lite support is extinguished. We find this contention to be without merit. Plaintiff’s appeal from the judgment granting the divorce and denying permanent alimony was not qualified or limited in any way to the portion of the judgment dealing with alimony. Under LSA-C.C.P. art. 3942 the effect of the judgment as it related to the granting of the divorce was suspended. The fact that plaintiff initially assigned no error in the appellate court relating to the granting of the divorce did not have the effect of making the divorce judgment definitive.

While defendant has correctly identified the legal foundation for requiring payment of pendente lite alimony as set forth by LSA-C.C. arts. 119, 120 and 148, he overlooks the broad power granted to the appellate court in its review of the trial court’s judgment by LSA-C.C.P. art. 2164. Under the mandate of that article the appellate court is required to examine all issues present in the case before it for error, whether or not such issues have been assigned as error in the appeal. Therefore, the status of the parties was before this court during the appeal of the divorce judgment and remains subject to further appellate review. Consequently, the judgment is not final and definitive as to status and does not act to abate the accrual of penden-te lite alimony in the wife’s suit for a separation.

For these reasons, the judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion, with all costs of this appeal assessed to defendant. Assessment of all other costs shall await final disposition of this case.

SEXTON, J., dissents with assigned reasons.

SEXTON, Judge,

dissenting.

The issue in this case is whether a spouse receiving pendente lite alimony may accrue that alimony when an appeal is taken from a judgment of divorce finding that spouse at fault, and therefore not entitled to permanent alimony. The majority here answers this question in the affirmative, distinguishing Malone v. Malone, 282 So.2d 119 (La.1973), and contending that Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir. 1975), the First Circuit’s extension of Malone is in error. The majority follows, instead, Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962), and argues that Frederic v. Frederic, 302 So.2d 903 (La.1974), and its application by this Court in Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979) are consistent therewith.

The defendant here, (and alimony paying spouse), relies on LSA-C.C.P. Art. 3943 for the proposition that support is abated under these circumstances.

It is important to remember the original purpose of Article 3943. Prior to Article 3943, under the jurisprudence, the spouse paying alimony (normally the husband) could suspensively appeal that judgment and avoid payment thereof until such time as the judgment was affirmed. Of course the recipient spouse (normally the wife), if she won on appeal, would be entitled to a lump sum payment representing the payments missed during the appeal. Thus Article 3943 overruled that jurisprudence and eliminated the unfair leverage the husband had by the means of a suspensive appeal.

We should note the title and wording of Article 3943 of the Code of Civil Procedure:

“Art. 3943. Appeal from judgment awarding custody or alimony
An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

In Malone v. Malone, supra, the court was called upon to decide whether the delay for appealing a judgment terminating alimony was 30 days as per Article 3942 or the longer 90 days (60 currently) of the general statute, LSA-C.C.P. Art. 2087. Now Chief Justice Dixon wrote that the wording of the article was “unfortunate” and that surely the legislature intended a consistent treatment of all judgments with respect to alimony and custody, whether they awarded, terminated, or modified custody or alimony. He also stated:

“Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. Art. 3943.” Malone, supra, at 121.

The majority would distinguish Malone on the basis that Malone was only discussing the first part of Article 3943, dealing with appeal delays. However, I strongly feel that if the logic of Malone is valid then that logic applies to all of Article 3943 as the First Circuit held in Donica, supra.

The majority further relies on Viser v. Viser, supra, for the proposition that the alimony here should continue to run until the Court of Appeal judgment is final because the husband has the obligation of support during the entirety of the separation and that separation is not concluded until the Court of Appeal judgment becomes final. Viser does indeed say that. However, Viser was rendered in 1962 and was prior to the “sexual revolution” which has theoretically resulted in the overturning of gender based statutes and jurisprudence. I believe Viser is implicitly gender based and is contrary to the logic of Malone.

More importantly, Viser relies on Cotton v. Wright, 193 La. 520, 190 So. 665 (La.1939), where the husband received a divorce based on the basis of a two year separation on December 5,1938. The wife, three days prior to that, filed to accrue past due alimony which had previously been set. The husband contended on appeal of the accrual action that the wife’s right to collect pen-dente lite alimony before the divorce abated with the divorce. The Supreme Court noted that these parties were “husband and wife until December 5,1938” and his obligation to support continued until then. Thus the Cotton court recognized specifically that alimony pendente lite ended when the trial court granted the divorce. Cotton had nothing to do with the question of pendente lite alimony accruing during an appeal of the divorce.

It should be noted that the Viser court felt constrained to distinguish Lee v. Koester, 155 La. 756, 99 So. 588 (La.1924) where alimony pendente lite had been awarded and the husband appealed that amount. In the meantime the wife lost the separation and the husband moved to dismiss the appeal. The Lee court said the pendente lite award there was an incident to the suit and after the separation had been dismissed, the alimony likewise fell “even as to alimony in arrear, if there should be any, we are not of the opinion that payment of it may be enforced by the wife.”

Likewise St. Martin v. Messersmith, 218 La. 239, 48 So.2d 909 (1950), also relied on in Viser, does not actually assist the Viser court. There the wife had received penden-te lite support of $225.00 a month, with the husband obtaining the separation. The wife later filed a rule to increase to $600.00. She lost and appealed. The husband then filed a motion to dismiss the appeal when he subsequently obtained a divorce. The court simply cited Cotton and St. Martin to maintain the appeal and affirm the denial of the increase.

Likewise in my view, Frederic, supra, and Bruner, supra, in which the majority finds support, when analyzed, do not assist the majority position here. The pertinent point in Bruner was minor in the context of that case, and Bruner contended that it was following Frederic. Thus, if Frederic is of no assistance, then Bruner’s support of the majority position falls as well.

The facts of Frederic are: (a) the wife received a separation by default on abandonment and $500.00 monthly alimony, (b) the husband sued thereafter for divorce on the basis of one year separate and apart and the wife reconvened for $750.00 permanent alimony — receiving $500.00, (c) the husband then appealed and the Court of Appeal affirmed — but writs were granted by the Supreme Court which reversed the District Court and Court of Appeal in the opinion here at issue, (d) While the foregoing appeal and writ application were pending, the husband filed a new rule to terminate because the wife had received her interest in the community. Losing in the District Court, he appealed and won at the Court of Appeal level but writs were also granted by the Supreme Court, and (e) when he quit paying any support based on the ruling in the new case, the wife filed to cumulate and was successful.

In finding for the wife on the issue of cumulation, the Supreme Court cited Article 3943 and stated:

“Inasmuch as an appeal from a judgment awarding alimony does not suspend the execution of the judgment, La.Code Civ.P. Art. 3943, the husband was not authorized to discontinue alimony payments upon the strength of the Court of Appeal judgment ... revoking alimony payments. The effect of the Court of Appeal judgment was itself suspended when this Court granted writs to review its correctness.” Frederic, supra, at 908.

Thus the Court was simply holding that the wife’s originally awarded alimony continued to run, since Article 3943 did not allow a suspensive appeal in alimony matters, and furthermore because the Court of Appeal judgment terminating alimony was itself suspended by the Supreme Court’s granting of writs.

I find nothing in these facts or this holding that supports the rationale of the majority here and suggest that arguably it lends more support to this dissent.

In summary, I strongly suggest that Viser receives no support from Cotton or St. Martin. I believe that Malone is a later and better expression, and although it arguably can be distinguished, I believe that distinction requires a “reaching.” The better rule is that if the trial judgment terminated alimony then no alimony is payable during the period of the appeal, unless the loser obtains a reversal, at which point a lump sum payment would be due. If alimony is granted and this decree is later reversed, the spouse having paid alimony should be entitled to a reimbursement. See O’Brien v. O’Brien, 347 So.2d 1288 (La.App. 1st Cir. 1977). If alimony had been granted and then upheld on appeal then the recipient has received it. To me this is a consistent reading of Article 3943, its interpretation by Malone (as well as Donica), and follows Cotton v. Wright which the Viser court improvidently extended.

The majority’s position contravenes the expansive application of LSA-C.C.P. Art. 3943 established by Chief Justice Dixon in Malone. It is also contrary to the historical factors and legislative considerations crucial to the enactment of LSA-C.C.P. Art. 3943.

We must furthermore recognize that astute trial counsel will often engage in every effort to draw out pendente lite alimony through appeals, causing the reverse of the evil which Article 3943 was designed to prevent. This article was not designed to indefinitely prolong the benefits payable to undeserving spouses; it was designed instead to protect spouses living in necessitous circumstances. In my view we can eliminate the implicit gender based bias of Viser and provide a consistent application of the law in all circumstances by affirming the trial court and following Cotton, Malone, Donica and O’Brien.

I therefore respectfully dissent.

      . From a proposed reversal of the lower court on our original hearing, one judge of the three-judge panel dissented as to the proposed result reached by that panel.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Respondent, v. Donald Wayne OSBON, Defendant-Relator.
    No. 15097-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      Ned D. Wright & Associates by Daniel P. Parker, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Johnny Par-kerson, Dist. Atty., and Geary S. Aycock, for plaintiff-respondent.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

The defendant was charged by bill of information with the crime of possession of marijuana in violation of LSA — R.S. 40:966. Defendant filed a motion to suppress evidence obtained in the course of an allegedly illegal search of his automobile by a police officer without a warrant or probable cause. After a hearing on the motion to suppress the trial court found that the war-rantless search was justified as a valid inventory search of the vehicle and overruled defendant’s motion to suppress. It was stipulated by the state and the defendant that the same evidence adduced at the hearing on the motion to suppress be considered as evidence at. the trial of the merits of the case. Based on this evidence the defendant was found guilty and sentenced to pay a fine of $400 and to serve 10 days in the parish jail. Defendant’s application for writs was granted to review the trial court’s ruling on the motion to suppress and defendant’s conviction based on the evidence sought to be suppressed.

On April 12, 1982 the defendant was stopped by a Monroe police officer for traveling 55 miles per hour in a 40 mile-per-hour zone. The defendant drove his car off of the street and parked it in a J.C. Penney parking lot. The officer detected alcohol on the breath of the defendant and after conducting a field sobriety test placed the defendant under arrest for speeding and driving while intoxicated.

The officer advised the defendant that he could not leave his automobile parked in the Penney’s parking lot and asked if there was anyone who could be called to come pick up the automobile. The defendant stated that, he did not want the vehicle moved. The officer explained to the defendant that if someone did not come for the vehicle he would have to call for a wrecker and have the vehicle towed away. The defendant again stated that he wished his vehicle to remain where it was. A wrecker was called. The arresting officer instructed another officer who had arrived at the scene to wait for the wrecker and to inventory the vehicle, and the arresting officer took the defendant to the police station.

During the course of inventorying the interior of the automobile the other officer found a plastic bag containing 8.82 grams of marijuana in the console of the car.

The officers testified that it is a standard police department policy that a vehicle not be left at the scene of an arrest in order to protect against possible vandalism of the vehicle. When the driver of a vehicle is arrested and there is nobody such as a relative or friend to whom the vehicle can be released, it is departmental policy to call a wrecker and to inventory the vehicle before it is released to the wrecker company in order to protect the arrested person’s property and the department from liability.

Defendant contends that the trial court erred in denying his motion to suppress and subsequently admitting into evidence the seized marijuana. Defendant emphasizes that there was no need or necessity to impound the automobile and, consequently, no necessity to conduct an inventory search. Defendant argues that he was not given the opportunity of waiving an inventory and that the automobile could and should have been left on the Penney’s parking lot as requested by the defendant.

The burden of proof is upon the state to show affirmatively that this war-rantless search and seizure was justified under one of the well-recognized exceptions to the warrant requirements of the federal and state constitutions. State v. Hatfield, 364 So.2d 578 (La.1978). Since the state claims that the evidence was seized pursuant to a valid inventory search it bears the burden of showing that impoundment of the defendant’s vehicle was necessary and that inventory of the vehicle’s contents was necessary and reasonable in its scope. State v. Crosby, 403 So.2d 1217 (La.1981); State v. Jewell, 338 So.2d 633 (La.1976). Some of the factors considered significant in determining if the state has carried its burden are whether: the vehicle could have remained safely at or near the place it was stopped; the search was conducted in the field; formal impoundment procedures were followed; the tow truck was called before commencing the search; the vehicle operator was asked if he consented to a search, if the car contained valuables, or if he would consent to the agency’s failure to afford him the protection of an inventory search; arrangements could have been made for someone designated by the operator to take possession or protective custody of the vehicle for him. State v. Jernigan, 390 So.2d 1306 (La.1980).

The Louisiana Supreme Court has ruled that before an inventory search can be determined to be valid there must be a showing that the impoundment of the vehicle was necessary. State v. Jewell, supra. The inventory search is a narrow exception to the requirement of a search warrant and the requirement of probable cause. Because of the possibility of its misuse the supreme court has held that to be valid an inventory search must be strictly limited to the practical purposes which justify it, those purposes being protection of the occupant from the loss of property and the protection of law enforcement agencies against the occupant’s claim for failure to guard against such loss. State v. Rome, 354 So.2d 504 (La.1978); State v. Gant, 357 So.2d 513 (La.1978); State v. Killcrease, 379 So.2d 737 (La.1980); State v. Hardy, 384 So.2d 432 (La.1980).

In the present case the defendant’s car was parked in a parking lot. There were other cars parked in the lot, apparently left there for the night. There is no indication in the record that the automobile was not safely parked and could not have been left where it was as the defendant requested with reasonable safety and without interference with traffic or the use of the parking lot by the department store and its customers. The defendant was not asked if he consented to a search nor was he asked if the car contained valuables, nor was he given the opportunity to waive an inventory of his vehicle or waive any claim for loss against the law enforcement agency. The fact that he repeatedly requested that the automobile be left where it was would seemingly amount to a waiver of any claim he might have for loss arising out of anything that might have occurred by reason of the automobile being left on the parking lot.

In State v. Crosby, supra, the Louisiana Supreme Court held that impoundment of a vehicle was not necessary where the vehicle was stopped a short distance from the parking area of the LSU Golf Course and the vehicle could have very easily been moved to this parking lot. The court further held that the policy of the police department that only family members could take possession of an arrestee’s vehicle was overly restrictive and raised the suspicion that the policy was intended as a subterfuge for warrantless searches without probable cause. The same can be said for a policy which requires impoundment of a vehicle in every instance where the driver is arrested and cannot or will not make arrangements for someone else to take possession of the vehicle regardless of other attendant circumstances. The question of whether impoundment of a vehicle is required and an inventory of the contents of the vehicle is justified must be answered by the particular facts, circumstances, and exigencies of each case, not by an inflexible police department policy which does not take into consideration factors bearing on necessity of the impoundment such as whether the vehicle is safely parked or whether the owner waives the protection of impoundment and inventory.

The state failed to prove that the impoundment of the vehicle in this case was reasonably necessary. It follows that the impoundment and inventory search of the vehicle were not justified as an exception to the warrant and probable cause requirements of the federal and state constitutions. The trial court erred in denying the motion to suppress and in allowing the illegally seized evidence to be offered at the trial of the case.

Accordingly the defendant’s conviction and sentence are set aside and the ease is remanded for a new trial in accordance with law.


author: MARVIN, Judge.

text:
    In re SPILLERS, Applying for Adoption, Petitioner-Appellee. Appeal of Ivy N. MIZE, Intervenor.
    No. 15,107-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      Ivy N. Mize, Jr., in pro. per.
    Marshall Blackwell, Monroe, for petitioner-appellee.
    Before HALL, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

The natural father appeals the adoption of his seven-year-old daughter by her stepfather.

The obvious issue is whether the father’s refusal or failure to comply with the court order of support for more than a year was without “just cause”. In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963); LRS 9:422.1.

After the parents were legally separated (October 1976) and divorced (November 1977), the father was granted visitation rights and was ordered to pay $75 monthly child support in a judgment of November 13,1978. The father has not complied with the support order except for two payments made in 1978.

As justification, the father contends that he was incarcerated on criminal charges on January 8, 1979, and that he has been in and out of jail since that time and has been unable to comply with his obligation. The record shows that the father was released on bail on September 23, 1980, that he jumped bail and was again incarcerated in California on May 19, 1981. During the time the father was not incarcerated he sometimes earned more than $1,000 a month.

The mother married the stepfather December 22,1977, and has a 22-month-old son by this marriage. She and her daughter have been residing with the stepfather since the marriage and are well cared for in a stable home. The adoptive daughter does well in school and regularly attends church.

Incarceration for a criminal offense does not necessarily constitute just cause for failure to pay child support. In Re Brannon, 340 So.2d 654 (La.App.2d Cir. 1976). The father’s circumstances result from his voluntary actions and he continued to neglect his obligation even when he was not incarcerated and was sometimes working for the nine months before his last incarceration.

The father also testified that the mother had denied him visitation privileges. The mother’s denial of visitation is not justification for the father’s failure to comply with an order of child support. In Re Jones, 337 So.2d 283 (La.App.2d Cir.1976), writ refused. The father has not shown just cause in either respect.

We find no error in the trial court’s finding the adoption to be in the best interest of the child. At appellant’s cost, judgment is AFFIRMED.


text:
    George A. HADDAD, Jr., Plaintiff-Appellant, v. Joe M. TOLBERT d/b/a Tolbert Well Service and Delmon E. Nottingham d/b/a Hammers Service Company, in Solido, Defendants-Appellees.
    No. 15108-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiff-appellant.
    John R. Pleasant, Shreveport, for defendants-appellees.

      Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff, George A. Haddad, Jr., brought this suit against Joe N. Tolbert d/b/a Tol-bert Well Service, and Delmon E. Nottingham d/b/a Hammer Service Company, seeking to recover the value and lost rental value of oil well service equipment owned by him allegedly purchased by defendants from other parties without plaintiff’s knowledge, consent, or authority and thereafter sold by defendants to another party. Defendants denied liability, admitting that they acquired the property from O.D. Broome and R.C. Lee who they thought to be the owners of the property, and alleging that after learning the equipment belonged to plaintiff they recovered the equipment from their purchaser and offered to return it to plaintiff. Defendants filed a third party demand against the parties from whom they had acquired the equipment. After trial, judgment was rendered ordering the equipment inspected by an engineer and if found to be in good condition, ordering return of the equipment to plaintiff. Plaintiff’s demands for damages were impliedly rejected. Judgment by default was rendered in favor of defendants-third party plaintiffs against the third party defendants for return of the purchase price paid for the equipment.

Plaintiff appealed contending the trial court erred in failing to award him damages for the loss of a potential sale and loss of rental of the equipment from the time it was taken from his storage yard until it was returned to him pursuant to the judgment rendered in this case. Defendants answered the appeal contending plaintiff is barred from appealing because of his acquiescence in the judgment by accepting return of the poles, and praying for damages for frivolous appeal. For the reasons expressed in this opinion we hold the appeal is proper, affirm the judgment of the district court, and reject defendants’ prayer for frivolous appeal damages.

Plaintiff is the owner of a set of telescoping poles, part of a pulling unit used in oilfield operations, which had been stored in his storage yard for a period of several years prior to the summer of 1981. In June 1981 defendants paid O.D. Broome and R.C. Lee $3,000 for the poles upon Broome and Lee’s representations that they were the owners or agents for the owner of the poles. Defendants made improvements to the poles at a cost of $750, attached them to a service unit they constructed, and sold the service unit to another party.

Plaintiff discovered the poles were missing in September 1981 and after having the disappearance investigated by the sheriff’s department, learned that the poles had been purchased by defendants. When defendants were notified that the poles belonged to plaintiff and that the parties with whom they dealt had no legal right to sell them, defendants recovered the poles from their purchaser and offered to return the poles to plaintiff. Plaintiff refused to accept return of the poles and insisted on being paid $9,000, or that defendants return the poles and pay $2,000. Defendants refused to pay any money and plaintiff filed this suit.

It is not disputed that after judgment was rendered the poles were inspected and then returned by defendants to plaintiff in as good or better condition then they were in at the time they were taken from the plaintiff’s storage yard.

Acquiescence

Appellees contend the appeal should be dismissed on the ground that appellant has acquiesced in the trial court’s judgment by accepting delivery of the poles.

LSA-C.C.P. Art. 2085 provides that:

“An appeal cannot be taken by a party ... who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

The acquiescence which precludes an appeal under the provisions of this article is “the acquiescence in a decree commanding that something be done or given.” There can be no acquiescence in a judgment that commands neither the doing or the giving of anything. Succession of Land, 209 La. 135, 24 So.2d 289 (1945). The actions of appellant indicate that he did not acquiesce in the portion of the judgment rejecting his claim for damages. At most, plaintiff’s action in accepting return of the poles constituted acquiescence in the part of the judgment ordering the return of the poles to him. There is no showing that by accepting the poles appellant clearly intended to abandon his right to appeal the portion of the judgment rejecting his damage claim. See Cohn Realty Company, Inc. v. Able Moving and Storage Company, Inc., 402 So.2d 104 (La.App. 1st Cir.1980). Appellant is entitled to pursue his appeal insofar as his claim to damages is concerned.

The Merits

The trial court found that the “wrong” was brought about not by the defendants but by Lee and Broome who took plaintiff’s property and sold it to the defendants. This equates to a finding that defendants were not at fault, which finding is supported by the evidence. Plaintiff’s claim for damages is necessarily grounded on LSA-C.C. Art. 2315 and in the absence of fault there is no legal basis for holding defendants liable for any damages suffered by plaintiff because of loss of rental or sale of the property. Further, plaintiff’s evidence was insufficient to establish that he did, in fact, sustain any loss. The equipment lay idle in his storage yard for several years, his expert witness testified he had not rented similar equipment he owned for several years, and the inquiries made by two persons concerning sale or rental as testified to by plaintiff did not amount to offers for rental or purchase of the equipment.

Plaintiff bases his claim for damages on LSA-C.C. Art. 2452 which provides:

“The sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.”

Plaintiff’s reliance on Article 2452 is misplaced; the article provides for recovery of damages by an innocent purchaser against the seller of a thing belonging to another, not for recovery of damages by the owner of the property against the innocent purchaser. See Boe v. Lake Forest, Inc., 384 So.2d 850 (La.App. 4th Cir.1980); 29 La.L. Rev. 329 at page 345. The good faith purchaser of stolen property is liable to the owner of the property only for the return of the property or, if unable to return the property, the fair market value thereof. Continental Casualty Company v. Ramon, 151 So.2d 526 (La.App. 4th Cir.1963). In the absence of fault, which was not established in this case, the purchaser of property belonging to someone other than his vendor is not responsible for damages incurred by the owner of the property over and above the purchaser’s obligation to return the property or, if unable to return the property, pay the fair market value thereof.

Frivolous Appeal

Although found to be without merit, plaintiff’s appeal of the rejection of his claim for damages was obviously taken in serious and vigorous pursuit of what plaintiff perceived to be his legal rights, and is not frivolous. LSA-C.C.P. Art. 2164; Goad v. May, 376 So.2d 340 (La.App. 3d Cir.1979).

Decree

The judgment of the district court is affirmed. Appellees’ demands for dismissal of the appeal and for frivolous appeal damages are rejected. Costs of the appeal are assessed to the plaintiff appellant.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    Walter DOWNEY, Plaintiff-Appellant, v. Joe CLARK, et al., Defendant-Appellee.
    No. 15109-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rice & McWilliams by John Ford McWil-liams, Jr., Shreveport, for plaintiff-appellant.
    Glenn F. Armstrong by Arax T. Brum-field, Bossier City, for defendant-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Walter Downey, the plaintiff in this action for damages due to personal injuries, appeals a judgment rejecting his demands against defendant, Dennis Clark, and awarding damages in the amount of $4,435.85 against the other defendant, Joe Clark.

Downey makes three assignments of error. The assignments raise three issues:

1) has plaintiff proved any lost wages;
2) is plaintiffs fallen arch causally related to the attack by Joe Clark; and
3) is mitigation of damages appropriate under the circumstances of this case.

This action arises from the facts set out below.

On the afternoon of December 26, 1980, Downey and his family went hunting on a tract in Bossier Parish where they had permission to hunt. Plaintiff’s wife and child were to hunt squirrels in one area while he went to another to hunt deer.

Instead of remaining on the tract where he had permission to hunt, Downey crossed on to posted land leased by defendant Joe Clark. Downey had hunted on the Clark lease before without permission and had been told several times not to do so. Dow-ney got in a tree stand on the Clark lease and began hunting.

Joe Clark and his son, Dennis, were also hunting on the lease that afternoon. When they quit hunting late in the afternoon, Joe and Dennis drove to the location of another stand where they planned for Dennis to hunt during the remainder of the holidays. Upon arriving at the stand they found the plaintiff on it.

Joe stopped his truck, got out and ordered Downey to come down. Downey did not do so and Joe became very upset. Joe got his rifle from the truck and again ordered Downey to come down. Downey still refused to do so and Joe responded by firing a shot into the tree above Downey.

Plaintiff threw his gun down but still refused to come out of the stand. Joe armed himself with a large stick and began to strike the stand and plaintiffs feet and legs. Eventually, Joe discarded the stick and again ordered Downey to get down. He also told plaintiff that if he came back on his lease he would kill him. With that Joe got back in his truck and he and Dennis drove away.

After the Clark vehicle was some distance away Downey climbed down from the stand with some difficulty due to the pain in his legs. He retrieved his rifle and hobbled back to his truck where his family was waiting and drove home.

The next day Downey went to the Schumpert Hospital emergency room where he saw Dr. Irwin Rice. At that time Dr. Rice found a large contusion on plaintiff’s left leg and a non displaced fracture of his right ankle. These injuries were healed by the time of trial in March, 1982, but by that time plaintiff was discovered to be suffering from a fallen arch.

Downey brought this action seeking damages for medical expenses, physical pain and suffering, mental anguish and lost wages. After a trial on the merits the district judge rejected plaintiff’s demands against Dennis but granted judgment against Joe Clark. The trial judge awarded damages in the amount of $435.85 for medical expenses and because he found that there should be mitigation of damages he awarded general damages of only $4,000. The trial judge made no award for lost wages or the fallen arch.

Downey then took this appeal.

Issue # 1

Plaintiff contends that he should have been awarded damages for lost wages caused by his inability to work for approximately two and one-half months following the incident. Downey seeks an award of $9,000 based upon a job as a foreman he had allegedly secured with his brother-in-law’s heating and air conditioning company in Houston.

The trial judge found the testimony of Downey and his brother-in-law as to the prospective job unbelievable and denied any recovery for lost wages.

Appellate courts will not disturb reasonable evaluations of credibility made by the trial judge. Guillory v. Texas Petro Gas Co., 405 So.2d 607 (La.App. 3d Cir.1981).

The Houston job was to be as a foreman in plaintiff’s brother-in-law’s heating and air conditioning business. However, the evidence shows that plaintiff had no experience in the field of heating and air conditioning and only slight experience as a foreman. These facts coupled with the family relationship of the witnesses, cast long shadows of doubt on the testimony.

Under the circumstances we cannot say that the trial judge’s conclusions as to the credibility of the testimony concerning the Houston job were unreasonable and, thus, we will not disturb them. However, the appellant is still entitled to some award for lost wages from his job in his father’s transmission repair business.

Appellant worked for his father on a contract basis rather than as an employee. Downey testified that an employee doing the work he did would be paid $400 or $500 per week. However, because of Downey’s contract relationship he made more or less, depending on business conditions. There was no detailed evidence as to the amount Downey received from his father for the work he did in his father’s business.

Where there is a right to recovery but loss of earnings are not exactly shown the court may assess damages for loss of earnings based upon all the facts and circumstances of the case. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

The evidence shows that appellant was disabled for approximately two and one-half months. In view of the length of the disability and the earning range of appellant an award of $1,500 will adequately compensate for lost wages or earnings.

Issue # 2

Appellant also claims damages for a fallen arch on his right foot. The trial judge found that the fallen arch was not caused by Joe Clark and denied recovery.

Causation is a fact question on which the trial judge’s findings cannot be disturbed absent manifest error. Smith v. State, Through Dept. of Transp., etc., 412 So.2d 685 (La.App. 2d Cir.1982), writ denied, 413 So.2d 907 (La.1982).

Dr. William W. Fox, III, an orthopedic surgeon, was called as a witness for plaintiff. After Mr. Downey carefully demonstrated how his foot was struck by Joe Clark the doctor was questioned. Dr. Fox testified that while it was possible the fallen arch had been caused by the blow, it was, “Not too probable.” Rec. p. 77.

The testimony of Dr. Fox and the fact that Downey did not mention the arch injury to Dr. Rice at the emergency room provide substantial evidence supporting the conclusion that it was not caused by the beating administered by Joe Clark. As there is no manifest error in the trial judge’s factual finding as to causation we cannot disturb it.

Issue # 3

Appellant contends that the damages should not have been mitigated. He argues that his status as a trespasser may be considered only to determine the duty owed to him and not as a basis for the mitigation of damages.

When and how damages should be mitigated are determinations left to the discretion of the trier of fact. Holden v. Straughn, 376 So.2d 1292 (La.App. 2d Cir. 1979).

Conduct or action which helps create the circumstances giving rise to the injury but does not justify the battery, may be considered for the purpose of mitigation. Andrepont v. Naquin, 345 So.2d 1216 (La. App. 1st Cir.1977).

Downey went onto the Clark lease in disregard of repeated warnings to stay off the property. Downey had trespassed on the Clark lease before and apparently planned to continue to do so until Joe Clark did something to stop him. Further, after Joe Clark discovered Downey on the property the latter refused to come down from the stand and leave the property when instructed to do so.

By intentionally engaging in such inflammatory conduct Downey put himself in the class of plaintiffs, who go looking for trouble and find it, to which the doctrine of mitigation is properly applied. Holden. That Downey incited his battery through the conduct of trespassing and ignoring Joe Clark’s demands to leave the property should not place him in a position better than that of a plaintiff who incites his battery through verbal abuse or taunting. Provocation by words can be considered in mitigation of damages. Morneau v. American Oil Company, 272 So.2d 313 (La.1973); Dubois v. Reliance Ins. Co., 349 So.2d 458 (La.App. 3d Cir.1977).

The trial judge was within his discretion in allowing mitigation under the facts of this case. This conclusion is supported by the jurisprudence.

In Johnson v. Powell, 338 So.2d 177 (La. App. 2d Cir.1976), we recognized the propriety of mitigation in a case where the plaintiff went to a lounge despite a warning from defendant not to and an altercation ensued.

In Dubois the court found mitigation proper in a case where the plaintiff returned to a bar after being ordered to leave. After returning to the bar the plaintiff verbally abused the proprietor who proceeded to pistol whip the plaintiff.

In Sherwood v. Sepulvado, 362 So.2d 1161 (La.App. 2d Cir.1978), this circuit recognized the propriety of mitigation based on the plaintiffs words and actions in a case where the defendant committed a battery upon plaintiff after she refused to leave defendant’s home.

Downey, like the plaintiff in Johnson, ignored a warning. The plaintiffs in Du-bois and Sherwood were at least quasi-trespassers and Downey was a clear trespasser.

Again we emphasize that this is not a case involving a first time trespasser who innocently wanders onto land where he does not have permission to be. Instead this case involves one who repeatedly and knowingly trespassed in disregard of numerous warnings and who, upon discovery, refused to accede to demands that he leave the property.

Mitigation of damages was properly allowed by the district judge.

For the foregoing reasons the judgment is amended to award $1,500 as damages for lost wages and as AMENDED the judgment is AFFIRMED. All costs of this appeal are assessed against appellee, Joe Clark.

      . Downey contends that the district judge erred in:
      1) not awarding damages for lost wages;
      2) not awarding damages for a fallen arch; and
      3) reducing general damages because appellant’s knowledge of Joe Clark’s temper and prior admonitions to stay off the land leased by Joe Clark.

      . The tree stand was made by attaching a small wooden seat or platform to a ladder. The ladder was then placed against the tree and secured. When assembled and secured the tree stand looks like an inverted “L”.
      The hunter climbs the ladder and sits on the platform or seat.


text:
    Warren S. WHITE and June Bacon White, Plaintiffs-Appellants, v. Louie V. CROOK and Earnestine M. Crook, Defendants-Appellees.
    No. 15114-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Rehearing Denied Feb. 24, 1983.

      Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiffs-appellants.
    Harvey Perry, Monroe, for defendants-appellees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action on a contract. The plaintiffs, Warren and June White, appeal a judgment sustaining a motion for summary judgment made by defendants, Louie and Earnestine Crook, and dismissing the plaintiffs’ action. We affirm.

Appellants make only one assignment of error. They contend the district judge erred in applying LSA-C.C. art. 2563 to the contract involved in this case.

The facts of this case are set out below.

The appellants owned certain land in Teller County, Colorado. By a contract executed in Ouachita Parish, Louisiana, on October 3, 1978, the appellants sold to defendants a one-half interest in the Colorado land. The contract provides that it is to be governed by Louisiana law. The parties are all residents of Louisiana.

The consideration for the sale was $7,500 cash and the promise of defendants to pay one-half of each remaining monthly installment on the note given by appellants to their vendors of the property. The monthly installments were in the amount of $1,179.87 and were due on the first of each month.

The contract also provides that:

“... it is specifically agreed and understood that should either party hereto fail and/or refuse to meet his monthly installments as provided hereinabove for a period of five (5) days subsequent to the respective due date of such obligation, that is, should either party hereto be in default for a period of five (5) days of his monthly obligation as contracted herein-above, then the defaulting party shall automatically be declared to be in default of the express provisions hereof and that the said defaulting party shall automatically forfeit all of his rights, claims, title, and interests in and to the subject property including but not limited to the defaulting party’s equity therein. The parties hereto further acknowledge and declare that the default provisions and sanctions as set forth herein shall remain in full force and effect as long as there remains an unpaid balance on the indebtedness secured by the mortgage and/or deed of trust mentioned hereinabove.”

In October, 1981, the defendants failed to pay their half of the installment until October 8th. On October 29th the appellants commenced this action seeking (1) to have defendants ordered to convey their interest in the land back to them and (2) attorney’s fees in the amount of $5,000.

Defendants moved for summary judgment on grounds that their payment on October 8, 1981, was timely under LSA-C.C. art. 2563. The district judge agreed and rendered the judgment complained of.

Appellants contend that a contract is the law between the parties and that the contract in this case provides for the “automatic” forfeiture of any parties’ interest for failure to pay the amount due within five days of the due date. As defendants did not make their payment on the October, 1981 installment within five days of the time it was due, appellants conclude that the defendants have forfeited all their rights and interest in the property.

In substance this is an action for recognition of the dissolution of the sale and enforcement of the penal obligation of the contract. The defendants, through their motion for summary judgment, assert that they have properly performed the primary obligation, payment of one-half the installment on the note, and that appellants are entitled to no relief.

The motion for summary judgment should be granted only when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

There is no genuine issue of material fact in this ease. It is undisputed that defendant did not pay their portion of the October, 1981 installment within the time allowed by the contract and that they did pay before this suit was filed. Thus, summary judgment is proper if defendants are entitled to judgment as a matter of law.

At the crux of this case is LSA-C.C. art. 2563 which provides:

If, at the time of the sale of immova-bles, it has been stipulated that, for want of payment of the price within the term agreed on, the sale should be of right dissolved, the buyer may nevertheless make payment after the expiration of the term, as long as he has not been placed in a state of default, by a judicial demand, but after that demand, the judge can grant him no delay.

Article 2563 has been interpreted to mean that a clause in a sale declaring that it shall be dissolved of right for nonpayment within the time specified has only the effect of waiving a formal putting in default and the right to perform by paying is not cut off until judicial demand is made. Southport Mill v. Ansley, 160 La. 131, 106 So. 720 (1925); Watson v. Feibel, 139 La. 375, 71 So. 585 (1916).

The contract involved here is, by its own terms, a completed sale. It expressly provides that any party who does not pay within five days of the time of his obligation to pay becomes due “automatically” forfeits all rights, claims, title and interests in and to the property.

Generally, upon the dissolution of a sale for nonpayment of the price, the vendor gets the property back and the purchaser is discharged from the obligation to pay and is entitled to the return of amounts already paid. Sliman v. McBee, 311 So.2d 248 (La.1975).

The contract in this case differs in that a penal clause requires the forfeiture of amounts previously paid. However, this contract is still a completed sale expressly made subject to dissolution for nonpayment and Article 2563, as construed by Southport Mill and Watson, supra, is applicable.

Appellants argue that this is not so because under LSA-C.C. art. 1901 a contract is the law between the parties and this contract provides that dissolution and forfeiture take place “automatically” on failure to pay within the time allowed.

Though the contract is the law between the parties, laws existing at the time of its confection are incorporated into and form part of the contract as though expressly written therein. Dantoni v. Board of Levee Commissioners, 227 La. 575, 80 So.2d 81 (1955); Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So.2d 797 (1947); West v. State, State Superintendent of Pub. Ed., 324 So.2d 579 (La.App. 1st Cir.1975); Velasquez v. Custom Built Homes, Inc., 246 So.2d 699 (La.App. 4th Cir.1971). Thus Article 2563 is a part of this contract. This Code Article without ambiguity states that where a contract of sale contains a provision stating that in the event of late payment the sale is dissolved “of right’ (which is synonymous with “automatically”) that the buyer who has failed to timely pay may nevertheless make payment any time before judicial demand.

Under Article 2563 the defendants had the right to pay until the appellants brought this action. Southport Mills; Watson, supra. Defendants paid before judicial demand, and, therefore, they sufficiently performed the primary obligation and appellants are entitled to neither dissolution nor the liquidated damages established by the penal clause. Summary judgment in defendants’ favor was proper.

Appellants cite and rely on Reine v. Kirn, 102 So.2d 66 (La.App.Orl.1958), for the proposition that Article 2563 cannot be extended beyond its specific terms and function. However, Reine merely holds that Article 2563 is not applicable to an executo-ry contract to buy or sell which is not involved here. Thus, our decision is not contrary to Reine and is indeed supported by it since the court there, at page 72, recognized the rule of Article 2563 as interpreted by Southport and Watson.

For the foregoing reasons the judgment of the district court is AFFIRMED at appellants’ costs.

      . Parties may stipulate in their contracts which state’s laws are to govern them. Delhomme Industries, Inc. v. Houston Beechcraft, 669 F.2d 1049 (5th Cir.1982); Southern Ins. Co. v. Consumer Agcy., Inc., 442 F.Supp. 30 (E.D.La. 1977); Associated Press v. Toledo Investments, Inc., 389 So.2d 752 (La.App.3d Cir.1980).

      . A penal clause is synonymous with liquidated damages. Pennington v. Drews, 218 La. 258, 49 So.2d 5 (1950); Burris v. Gay, 324 So.2d 11 (La.App.2d Cir.1975); writ denied, 326 So.2d 377 (La.1976.)
      As to the validity of penal clauses such as this one, see Heeb v. Codifer & Bonnabel, 162 La. 139, 110 So. 178 (1926); Scott v. Apgar, 238 La. 29, 113 So.2d 457 (1959).

      . LSA-C.C.art. 2119 — The penal clause has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty, while, in conditional contracts, there is no obligation, unless the condition happens.


author: FRED W. JONES, Jr., Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Cleave McCLAIN, Defendant-Appellant.
    No. 15117-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

After a trial by jury, defendant was found guilty, as charged, of the offense of aggravated battery (La.R.S. 14:34) and sentenced to be imprisoned at hard labor for three years. Upon appeal to the Louisiana Supreme Court, the conviction was affirmed but the sentence vacated because the trial judge did not follow the guidelines set forth in La.C.Cr.P. Article 894.1. See State v. McClain, 415 So.2d 936 (La.1982). The case was remanded to the trial court for resentencing of the defendant.

In compliance with the higher court directive, and after adverting to the criteria of Article 894.1, the trial judge again sentenced the defendant to be imprisoned at hard labor for three years. Defendant appealed the sentence, complaining in his assignments of error that the trial judge failed to follow the sentencing guidelines contained in Article 894.1 and that the sentence imposed is excessive.

The imposition of an excessive sentence is prohibited. Article 1, § 20, Louisiana Constitution of 1974. Even though within statutory limits, a sentence may violate a defendant’s right against excessive punishment under the particular circumstances of the case. State v. Grey, 408 So.2d 1239 (La.1982).

The trial court’s statement of reasons in imposing sentence, as required by Article 894.1, is an important aid to an appellate court when called upon to review a sentence complained of as excessive. The purpose of this requirement is to assure that each sentence be particularized and adapted to the offender as well as to the offense. State v. Jackson, 360 So.2d 842 (La.1978).

According to the record, prior to re-sentencing the defendant, the trial judge expressly and specifically referred to each criterion contained in Article 894.1, discussing both aggravating and mitigating factors. After reviewing the report of the pre-sentence investigation, the trial judge noted that: the 29 year old defendant struck the female victim (with whom defendant had lived out of wedlock for 11 years and by whom he had one child) over the head several times with a pistol; the defendant had several prior misdemeanor convictions; the relationship between the defendant and the victim had been plagued by constant bickering and fighting; the victim did nothing to provoke the battery; defendant was unemployed at the time of the offense and had a “spotty” employment history; difficulties between the defendant and the victim would likely continue if the defendant received a suspended sentence; confinement of the defendant would not result in excessive hardship for him or his dependents.

By thus stating for the record the considerations taken into account and the factual bases for the sentence, the trial judge adequately complied with Article 894.1.

The next question is whether the sentence of imprisonment at hard labor for three years (out of a possible maximum sentence of 10 years) is excessive. It is recognized that a trial judge is given wide discretion in the imposition of a sentence within statutory limits and that the sentence imposed by him should not be set aside as excessive in the absence of an abuse of his discretion. State v. Forshee, 395 So.2d 742 (La.1981).

Viewed against the background of the criteria expressed in Article 894.1, the circumstances of this particular offense, and the trial judge’s explanation of the factual bases for his resentencing of the defendant, we conclude that the sentence imposed is not excessive.

For these reasons, finding no merit in defendant’s assignments of error, we affirm the sentence imposed upon resentencing.


text:
    CREDITHRIFT OF AMERICA, INC., Plaintiff-Appellee, v. Jessie WILLIAMS, Jr., Defendant-Appellant.
    No. 15118-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.

      Simon, Fitzgerald, Cooke & Reed by Keith M. Welch, Shreveport, for plaintiff-appellee.
    Pugh & Pugh by Robert G. Pugh, Jr., Shreveport, for defendant-appellant.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is an action to annul a sheriff’s sale, a deficiency judgment and a garnishment, and for damages. The plaintiff is Jessie Williams, Jr., and the defendant is Credi-thrift of America, Inc. Plaintiff appeals a judgment granting defendant’s motion for summary judgment and dismissing his action. We REVERSE IN PART and REMAND.

Williams assigns only one error; that the trial judge erred in holding that a deficiency judgment and garnishment could be obtained even though there was noncompliance with the statutes regulating executory process.

The arguments of the parties raise two primary issues:

1) was there any violation of the statutory rules regulating executory process and deficiency judgments; and
2) if so, does that violation provide grounds for the annulment of the judgment and garnishment attacked by plaintiff.

The Facts

In 1976 Williams financed the purchase of a Chevrolet van through Credithrift. Williams gave Credithrift a note in the amount of $8,928.00 secured by a mortgage on the van. The mortgage conferred on Credi-thrift the rights to use executory process and to sell the van without appraisment in the event of default by Williams.

In July, 1979, when the amount owed on the note had been reduced to approximately $2,000, Williams failed to make a payment. Credithrift commenced an executory proceeding to enforce its mortgage on the van.

The van was seized and both parties appointed appraisers. Both appraisals were made on May 13, 1980. Credithrift’s appraiser valued the van at $1,000 and Williams’ appraiser valued the van at $1,500. According to affidavits filed in support of the motion for summary judgment, Credi-thrift’s appraiser then acceded to the sheriff’s request that he conform his appraisal to that of the debtor’s appraiser in order to obviate the requirement that the sale be rescheduled and a third appraiser appointed. On May 14,1980, the sale was held and the van was purchased by Credithrift for the minimum bid of $1,000. The net proceeds of the sale were $799.30.

Credithrift then obtained a deficiency judgment by default against Williams for the amount of the debt, $2,037.99, interest, 25% attorney’s fees and costs, subject to credits of $20.77 for unearned interest and rebated insurance, and $799.30 for the proceeds of the sale of the van. Credithrift garnished Williams’ wages to satisfy the deficiency judgment.

Williams responded by bringing this action. Credithrift interposed several exceptions which were overruled. Williams made a motion for summary judgment which was denied. Credithrift then made this motion for summary judgment which was granted. Williams appealed.

Summary judgment should be granted if, and only if, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Ray v. Associated Indem. Corp., 373 So.2d 166 (La.1979); LSA-C.C.P. art. 966. Even if there is no genuine issue of material fact, summary judgment is improper if the mover is not entitled to judgment as a matter of law. Robinett v. Metropolitan Life Ins. Co., 404 So.2d 1344 (La.App. 2d Cir.1981).

The district judge concluded that the facts were not in dispute and that Credi-thrift was entitled to judgment in its favor. While we are in accord with the conclusion that there was no genuine issue of material fact, we cannot say that reasonable minds must inevitably conclude that Credithrift is entitled to dismissal of plaintiff’s action as a matter of law.

Issue # 1

Appellant argues that the statutory rules governing executory process and deficiency judgments were not complied with in two respects. First, that the appraisals were not made at least two days prior to the sale and, second, that a third appraiser was not appointed by the sheriff following the initial disagreement between the appraisers appointed by the parties. We find appellant’s first argument well founded and, thus, do not consider the second.

A creditor may obtain a deficiency judgment only if the property has been sold in an executory proceeding after an appraisal in accordance with law. LSA-C.C.P. arts. 2771, 2723. No deficiency judgment can be obtained if the sale is made without appraisal. LSA-R.S. 13:4106; Bank of New Orleans & Trust Co. v. Brule, 389 So.2d 1148 (La.App. 4th Cir.1980); Ford Motor Credit Company v. Soileau, 323 So.2d 221 (La.App. 3d Cir.1975). Thus, though a sale with appraisal is not required under C.C.P. art. 2723, a sale with appraisal is required in order for a creditor to obtain a deficiency judgment.

The sale involved in this case occurred in 1980. At that time R.S. 13:4363 stated that the “... appraisal shall be made at least two days, exclusive of holidays, prior to the time of sale.” The word “shall” is mandatory. LSA-R.S. 1:3.

Executory process is a harsh remedy and one seeking to avail himself of executo-ry process must strictly comply with the letter of statutory requirements for its use. Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La.App. 3d Cir.1981); American Sec. Bank of Ville Platte v. Deville, 368 So.2d 167 (La.App. 3d Cir.1979).

The appraisal sheet in these proceedings show that the appraisals were made only the day before the sale in clear violation of the mandatory language of R.S. 13:4363 as it then existed. Therefore, the purported appraisals are invalid and it is as if there was no appraisal at all. The deficiency judgment was obtained in violation of LSA-C.C.P. art. 2771 and R.S. 13:4106.

Issue # 2

Credithrift contends that the sheriff’s sale, deficiency judgment and garnishment cannot be annulled because of statutory violations unless it is also shown that the plaintiff is deprived of legal rights and that enforcement of the deficient judgment and garnishment would be inequitable or uncon-scientious. This contention is based on Leidig v. Leidig, 187 So.2d 201 (La.App. 3d Cir.1966) and Tapp v. Guaranty Finance Co., Inc., 158 So.2d 228 (La.App. 1st Cir. 1963), writ refused, 245 La. 640, 160 So.2d 228 (1964). Appellee argues that neither of the required factors is present.

We first consider appellant’s demand that the sheriff’s sale be annulled.

Though there was a violation of the statute governing appraisals during the execu-tory proceeding, that violation does not invalidate the sheriff’s sale. An appraisal is not required where, as here, appraisal has been waived in the mortgage. C.C.P. art 2723. Therefore, defendant was entitled to judgment as a matter of law dismissing plaintiff’s demand that the sheriff’s sale be annulled and summary judgment was properly granted as to that demand.

We now turn to the remaining demands.

Credithrift contends that there is no deprivation of a legal right nor is the enforcement of the deficiency judgment and garnishment inequitable or unconscientious and that both are necessary in order to grant the requested relief. We disagree. The plaintiff has been deprived of his right to be free of a deficiency judgment and the enforcement of the deficiency judgment against him would be grossly unfair, inequitable and unconscientious.

Our law provides creditors with an extremely powerful remedy in executory process. The creditor is denied the additional remedy of a deficiency judgment, except where the seized property has been sold with appraisal, in order to protect debtors from possible abuse resulting from the judicial sale of property without notice or proper appraisment. Ardoin v. Fontenot, 374 So.2d 1273 (La.App. 3d Cir.1979). The remedy of the deficiency judgment is also subject to abuse if the provisions of R.S. 13:4363, et seq., regulating appraisal procedures are not strictly complied with.

One purpose of the appraisals two days before the sale as required by R.S. 13:4363 is to protect debtors from unnecessary deficiency judgments by encouraging more competitive bidding for the seized property. Competitive bidding is best fostered by making information available well in advance of the sale of the amount of the appraisals. From the appraisals the minimum required bid can be determined and the accessibility of the information may encourage prospective bidders on the seized property.

Where, as in this case, the ability of possible bidders for seized property to learn the amount in advance of the sale of the appraisals is hindered by a violation of R.S. 13:4363, it becomes more likely that the property will be sold, as it was here, to the creditor for the minimum bid. Under these circumstances, where a creditor, by violating the statutory regulations on appraisal, makes it possible to obtain an abusive deficiency judgment, the enforcement of that judgment is inequitable and unconscientious and it may be annulled.

Credithrift argues that a faulty appraisal does not render the enforcement of a subsequent judgment unconscientious relying on Accardo v. Dimiceli, 226 La. 435, 76 So.2d 521 (1954). We find Accardo inapposite.

Accardo involved an action to partition property by licitation. Here the act to annul is aimed primarily at a deficiency judgment obtained after an executory proceeding in which there was a violation of the statutes regulating appraisal.

In the Accardo case the court denied the action to annul the partition proceedings based upon defective appraisals for the reason that the defects should have been urged on appeal and not in an action to annul the judgment and sale. The court reasoned that an action to annul cannot be used as a substitute for an appeal.

In the First Circuit case of Tapp v. Guaranty Finance Company, supra, which involved an action to annul a deficiency judgment and garnishment proceedings based upon it the court refused to follow the rationale of Accardo. In that case no appeal was taken from a deficiency judgment obtained following an executory process proceeding wherein there was no legal appraisal. The court there found the deficiency judgment was obtained in violation of a prohibitory law and was for that reason a nullity. The court stated:

“... If we are correct in our holding that the foreclosure proceedings, including the attempted appraisement of plaintiffs property were null, void and of no legal effect, then it follows that under LSA-R.S. 13:4106 “* * * the debt nevertheless shall stand fully satisfied and discharged, and such mortgagee or other creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in any manner whatsoever.” Therefore, the Legislature has absolutely prohibited a mortgagee or other creditor from proceeding against the debtor or any other of his property for any deficiency judgment in the absence of a legal appraisement. This is a prohibitory law and under LSA-Civil Code, Article 12, “Whatever is done in contravention of a prohibitory law, is void, although the nullity be not formally directed.” [158 So.2d 234]

The Tapp Court reasoned that the Legislature by enacting LSA-R.S. 13:4106 had expressed the strong public policy that deficiency judgments are prohibited except in cases where the sale has been made with legal appraisment and that a judgment rendered in violation of the statute was a nullity.

In the case of League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 the Supreme Court approved the rationale of Tapp and held no deficiency judgment could be obtained where there was no legal appraisal. The court therein rejected the reasoning of the earlier Fourth Circuit case of White Motor Co. v. Piggy Bak Cartage Corp., La.App., 202 So.2d 294, in which it had denied writs, which held that where the debtor had failed to appeal the order of seizure and sale or enjoin the sale he could not defend the suit for deficiency judgment on the grounds that there had been no legal appraisal.

We find Accardo inapplicable to this suit to annul a deficiency judgment for the reasons expressed in Tapp.

The appraisals were found defective in the Tapp case and in the League Central Credit Union case because the order of seizure and sale in each case was not supported by authentic evidence rather than for any defect in the appraisal. In this case the defect is contained in the appraisals. The effects of the illegal appraisals are the same in that they result in sales without appraisals and under the provisions of LSA-C.C.P. art. 2771 and LSA-R.S. 13:4106 a deficiency judgment rendered based upon a sale without appraisment is subject to an action of nullity.

For the foregoing reasons the judgment of the district court is AFFIRMED with respect to plaintiff’s demand that the sheriff’s sale be annulled, but as to all other demands the judgment of the district court is REVERSED and the motion for summary judgment is denied and this cause is remanded for further proceedings. All costs of this appeal are assessed against appellee.

      . A 1981 amendment deleted the quoted language from the statute. However, Act No. 836 of 1982 restores the language to the statute and strengthens it with the additional requirement that the appraisal be delivered to the sheriff at least two days prior to the sale.


author: NORRIS, Judge.

text:
    Lila Mae McKINNIE, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellee.
    No. 15119-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 17, 1983.
    Writ Denied March 18, 1983.

      Davenport, Files & Kelly by Mike C. Sanders, Monroe, for plaintiff-appellant.
    Marshall W. Wroten, Harvey Lee Hall, Thomas L. Crabson, Frank A. Betanski, Jr., Baton Rouge, for defendant-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff, Lila Mae McKinnie, appeals a judgment of the trial court rejecting her demand against the Department of Transportation and Development, hereinafter referred to as the “Department,” for damages sustained as a result of a one vehicle accident. We affirm.

FACTS

Between 8:30 and 9:30 a.m. on January 8, 1979, Mrs. McKinnie was driving a Ford pick up truck on Highway 33 in Union Parish enroute from Marion to Farmerville to visit her hospitalized aunt with her daughter, Debra Reeves, as her only passenger. The weather was clear and cold. As Mrs. McKinnie approached a curve in the road at a point where it intersects with a driveway on its north perimeter, she encountered what appeared to be a “strip of ice” extending at least partially across the highway. Mrs. Reeves observed what appeared to be a “little stream of water” as the vehicle approached the curve and warned her mother to watch out for it. Mrs. McKinnie was driving at a speed of approximately 45 miles per hour when her vehicle struck the substance on the road. At that point, the truck began swerving, Mrs. McKinnie applied her brakes, the truck went out of control, and the truck with its passengers came to a halt in a ditch on the North side of the road.

As a result of this accident, Mrs. McKin-nie suffered mild to moderate injuries to her neck, left shoulder, lower back and right knee. On November 15, 1979, plaintiff filed a petition, couched in terms of negligence, against the Department. Trial of this case was held on April 9, 1981, and on January 18, 1982, the trial court filed written “Reasons for Judgment” rejecting Mrs. McKinnie’s demands. It is from the judgment signed in accordance with those reasons that Mrs. McKinnie appeals specifying the following errors:

1) The Trial Court erred in failing to find that the Department was strictly liable for the injuries suffered by Mrs. McKin-nie and in failing to treat this as a strict liability case.
2) The Trial Court erred in finding that the highway in question was in a reasonably safe condition.
3) The Trial Court erred in failing to find that the Department had actual or constructive notice of a dangerous condition.
4) The Trial Court erred in failing to find negligence on the part of the Appellee, [and]
5) The Trial Court erred in finding that a reasonably prudent driver would have anticipated and avoided the patch of ice.

In substance, Mrs. McKinnie argues that she is entitled to recover against the Department under either the theory of strict liability or a theory of negligence.

LIABILITY UNDER LA. C.C. ARTICLE 2317

Under La.C.C. Art. 2317, when harm results from a defect in a thing which creates an unreasonable risk of harm to others, the person in whose custody the thing is when the harm results, is liable for the damage thus caused. Loeseher v. Parr, 324 So.2d 441 (La.1975). However, the burden is on the plaintiff to prove the vice or defect in the thing which creates an unreasonable risk of harm to others and that the damage resulted from such vice of defect. Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3d Cir.1980). In other words, in a strict liability case, the claimant is relieved only of proving that the owner or custodian knew or should have known of the risk involved and must still prove that under the circumstances, the thing was defective. A defect is some flaw or fault existing or inherent in the thing itself that creates an unreasonable risk of harm to others. Naylor v. Louisiana Dept. of Public Highways, et al., 423 So.2d 674 (La.App.1982); Brown v. Winn-Dixie Louisiana, Inc., 417 So.2d 44 (La.App. 1st Cir.1982).

Counsel for Mrs. McKinnie has suggested to this court in oral argument that the defect existing in the highway was that of improper construction of the road which caused faulty drainage thereby allowing water to cross the road. However, there is no evidence in the record, expert or otherwise, that addresses or pertains to the issue of what constituted the defect in the road. After hearing all of the evidence and actually visiting the site of the accident, the trial judge, without amplification or explanation, concluded that water drained from the dirt driveway leading from an abandoned home and across the road and that this drainage was because of the general elevation on the north side of the road. Nevertheless, the trial judge also concluded that plaintiff failed to prove that the road, shoulder or ditches were improperly constructed.

Our review of the record convinces us that the trial court was not “clearly wrong” in concluding that Mrs. McKinnie had failed to prove that the road, shoulder and ditches were constructed or maintained improperly so as to constitute a defect therein which created an unreasonable risk of harm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, Co., et al., 283 So.2d 716 (La.1973).

Furthermore, our review of the record compels us to conclude that not only did plaintiff fail to prove any defect in the construction and maintenance of the road, shoulder or ditches at the location of the accident, but also that the only fact actually proven by the evidence was the presence of a foreign substance [ice or water] on the road at the time of the accident. The temporary presence of a foreign substance on a curved roadway, in and of itself, is not a defect for the purpose of imposing liability under Article 2317. [Brown v. Winn-Dixie Louisiana, Inc., supra; Naylor v. Louisiana Dept. of Public Highways, et al., supra.] because such substances obviously are not flaws or faults which exist or are inherent in the thing itself. They are not imperfections in the road itself; and even if they were deemed to be such, not every imperfection in a road is so unreasonable as to justify the imposition of non negligent liability. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).

Accordingly, we conclude that Mrs. McKinnie is not entitled to prevail in this instance under a theory of strict liability, and the trial court was not wrong in rejecting recovery on that basis.

LIABILITY UNDER LA. C.C. ARTICLE 2315

In order to determine whether or not Mrs. McKinnie is entitled to recover under Art. 2315, it is necessary that we summarize briefly the evidence adduced at trial.

James Edward Thrascher, a witness who lived in the same community with Mrs. McKinnie and had known her for twenty years, testified that earlier on the morning of the accident, he had traveled Highway 33 to and from Farmerville and had encountered ice on the road at the accident site. He further testified that it was the only ice he saw on the road and that it had caused him to nearly wreck his vehicle on his return trip from Farmerville. This witness did not recall ever having seen ice at that spot previously but did relate that he had seen a damp condition across the road in the area of this particular driveway on occasions during the past seven or eight years when the remainder of the road was dry. He was of the opinion that the water “seeped out of the ground” but finally admitted that he had no actual knowledge of the water’s source.

Phyllis Murphy, wife of the chiropractor who treated Mrs. McKinnie in connection with the injuries sustained as a result of this accident, testified that on a “real cold” morning in January of 1979, she had traversed the area in question encountering what she believed to be a patch of ice approximately two or three feet wide at the curve where the accident occurred. However, she was unsure whether or not this encounter was on January 9, 1979. While she had never observed what she perceived to be ice at this location on other occasions, she did testify generally that she had previously seen water in that area. However, neither could she testify as to the source of the water because of her lack of personal knowledge.

It is noteworthy at this point that neither Mrs. Murphy nor Mr. Trascher ever reported the icing condition which, they observed to the appropriate authorities.

The only other two witnesses to testify on behalf of the plaintiff were the plaintiff and her daughter who was a passenger in the truck at the time of the accident. While both testified that water or ice was present at the site of the accident, and that the weather was cold and fair at the time of the accident, neither testified as to the source of that water or ice or the weather conditions prior to the accident. Neither inspected the road after the accident to verify that the substance on the roadway was ice.

The remaining evidence presented by the plaintiff relating to the issue of liability consists of two pictures of the accident site which were purportedly taken several months post accident and which do not depict water running across the road or any damp spots in the curve.

In connection with the defendant’s case, Raymond Farris, Parish Superintendent for the Department at the time of the accident, testified that in his job he inspected the roads of Union Parish at least once a week. He stated that he was very familiar with the stretch of highway in question, passed over it at least once or twice a week, and had never seen water standing at the spot in question. Farris did admit during and after an excessive rain, he had seen water run across the road where the driveway intersected with the highway but qualified that admission with the statement that shortly after such a rain the water running across the road ceased. Finally, he testified that he had never received reports of ice on the road at that location.

John Paul Rigger, parish maintenance specialist for Morehouse and Union Parishes, testified he was familiar with the stretch of road in question and that he traveled it about once a month. However, he further testified that he had never seen water accumulate at that spot, water running across the road, or ice on the road at that particular spot.

The only evidence introduced pertaining to the “weather conditions” prior to the accident consisted of certified copies of “Surface Weather observations” for Monroe, Louisiana, located at least twenty five miles southeast of the accident. This exhibit was introduced on behalf of the defendant and was objected to by Mrs. McKinnie’s attorney, who contended that it should be afforded no weight by the trial court. We agree with counsel’s assertion. While these records indicate it did rain some 1.4 inches in Monroe on January 6 and 7, 1979, and that the temperature at the time of the accident was below freezing in Monroe, they do not refer to nor do they indicate the rainfall nor temperature conditions at the location in question in Union Parish prior to or at the time of the accident.

In summary, this is the totality of the case presented to the trial court regarding the source of water or ice on the curve. It is obvious from a review of the foregoing that the only testimony or evidence regarding the source of any water which may or may not have existed on the roadway at any point in time came from the highway official who testified that after an excessive rain, he had seen water run across the road at its intersection with the driveway but that it would soon cease. It is inescapable that there is no competent evidence in the record whatsoever on which to base a finding that it had rained at this particular location prior to the accident.

While the trial court after physically observing the accident site sometime in 1981 (at least two years after the date of the accident) concluded that water drained down the dirt driveway leading to the abandoned home and across the highway due to the general elevation of the ground on the north side of the road, we can only surmise that this finding was based on his observation of the site coupled with the highway official’s testimony of conditions which might' exist after an excessive rain at the site. However, he made no finding that it had rained at that particular location at any point in time, close or removed, prior to the accident, and the record, to say the least, is devoid of proof in this regard.

Thus, we conclude that there is no proof of the source of the water or ice. The evidence not only does not preponderate in favor of the plaintiff that any action or inaction of the Department caused the water to be present on the road but we are unable to determine based on this record how it got there. Accordingly, because one of the necessary elements to prove recovery under a theory of negligence is the showing of a causal relationship between the injury suffered by the plaintiff and the action or inaction of the Department, we must conclude that because Mrs. McKinnie has offered no proof as to the source of the water or ice on the highway that the department can not be held liable for “causing” the presence of the water or ice on the highway.

However, we cannot terminate this discussion at this point and on this basis alone find no liability on the part of the Department. We must further determine if the plaintiff proved any other basis on which the Department might be held liable for her injuries.

It is well settled that the state owes a duty to the motoring public to maintain highways in a reasonably safe condition and to remedy conditions which create an unreasonable risk of injury. Mrs. McKinnie certainly falls within the class sought to be protected by such a rule of law. However, this duty to remedy arises from knowledge of an unsafe condition on the highway. Before the state, through the Department of Transportation and Development, may be held liable for an accident caused by a condition that creates an unreasonable risk of injury, it must also be shown that the Department had actual or constructive notice of the condition and a sufficient opportunity to remedy the situation or at least to warn motorists of its presence which it failed to do. See Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); Naylor v. Louisiana Dept. of Public Highways, et al., supra.

In the instant case, it is admitted that the Department had notice that on occasions during or after excessive rain, water drained across Highway 33 in the vicinity of the driveway intersection. The evidence, however, does not reveal that the amount of water that drained across the road was excessive, that it accumulated or stood in the road, or that such condition in and of itself had ever presented an unreasonable risk of injury to the motoring public. From this admission, we cannot conclude that the conditions of which the Department had notice created an unreasonable risk of injury. Furthermore, there is nothing of record to cause us to conclude that the Department had constructive notice of any other conditions.

It is apparent to us that the state cannot construct and maintain perfect highways and roads. The law certainly does not make the state responsible for every accident which may occur on state highways; nor is it a guarantor of the safety of the travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways. See U.S.F. & G. v. State, Dept. of Highways, 339 So.2d 780 (La.1976).

Therefore, we conclude that the trial court was not clearly wrong in finding, based on the evidence, as well as his credibility evaluation thereof, that the condition of water occasionally draining across the road during and after an excessive rain did not constitute an unreasonable risk of harm. The Department did not act unreasonably in failing to take steps to remedy or warn of this condition. “ Unreasonableness” is the traditional standard for the determination of negligence. Not every minor imperfection or irregularity can be said to be patently dangerous (defective) or to create an unreasonable risk of injury within the parameters of La.C.C. Arts. 2315 and 2317. See Burris v. Insured Lloyds, 417 So.2d 511 (La.App. 3d Cir.1982); Shipp v. City of Alexandria, supra.

Likewise, the evidence does not preponderate to show that the Department had either actual or constructive notice that on the date in question, or at any time for that matter, ice had formed on the road or was likely to form at the particular place where the accident occurred. No weather forecasts or predictions were introduced into evidence to show that the Department should have had notice that sufficient rain was expected to fall to cause water to drain across the road and that freezing temperatures were expected or forecasted for January 9,1979. Additionally, Department officials testified that they had never received any reports about ice on the road in the area at any time.

While we are aware of no cases in Louisiana concerning the formation of ice on roads, we have found cases which involve the formation of ice on state bridges which are analogous and instructive in dealing with this issue.

In Coleman v. Houp, 319 So.2d 831 (La. App. 3d Cir.1975), a spill way bridge iced over in St. Landry Parish. The court found the Highway Department not to be liable for failing to take steps to alleviate or warn of the icy condition on the bridge because it did not have adequate notice of the condition to act prior to the accident. The court in Coleman, stated the well settled rule thusly:

Both parties also cite Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3d Cir.1963) for the well-settled proposition that in order to hold the Department liable for an accident caused by an unsafe or hazardous condition it must be shown that the Department had prior notice, either actual or constructive, of the dangerous condition and sufficient opportunity to remedy same or at least to alert and warn the motoring public of its presence, and failed to do so.
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Counsel cites no cases and this court is aware of none which specifically require a highway department to have crews constantly alerted to cover iced bridges or that require a constant surveillance of weather conditions to anticipate the need for such action. The weather reports of the previous day and into the early part of the night do not indicate such a likelihood of bridges icing over as to require that the department have an overnight crew standing by. Mr. Marcantel testified that the weather forecasts for the previous day were not such as to indicate the necessity for an overnight watch of weather conditions if such is ever so. [Emphasis added.]

Consequently, even though it is a matter of general knowledge that in the wintertime, bridges are likely to “ice over” when the temperature gets below freezing, the Department is not required to take action to alleviate such icing conditions or to warn of such conditions unless such a condition was reasonably expected at a particular time, and the Department has sufficient notice to take the necessary steps to alleviate the condition or warn the motoring public. See Moraus v. State, Department of Transportation, 396 So.2d 596 (La.App. 3d Cir.1981). The rule resulting is that the plaintiff must prove that the Department had good reason to believe that the icing conditions were going to occur and a sufficient opportunity to correct them or warn of their presence. While this rule may be equally applicable to icing conditions on highways under certain factual situations, we conclude that Mrs. McKinnie has not met the requisite burden of proof to warrant the application of the rule to this case. The record does not reflect that the required notice of the icing condition on the curve was in existence.

In order for us to impose liability in this case on the Department, we would have to impute notice of icing to the Department simply because it had knowledge that on occasion during winter months excessive rain might fall and cause water to run across the road and that during the winter months in Louisiana the temperature sometimes falls below freezing, a matter of general knowledge. Unquestionably, this would impose an unreasonable and unrealistic burden upon the Department. In effect, this would place upon the Department the burden of foreseeing a combination of unusual factors, i.e., excessive rain followed by freezing temperatures sufficient to cause the formation of ice across the highway. Under the overall circumstances, we are unable to conclude that the Department was or would be acting unreasonably in failing to protect against these particular consequences. See Kent v. Gulf States Utilities Co., supra. Furthermore, we find no ease of association between the risk presented by the Department’s conduct under the overall circumstances presented by this case and the injuries to plaintiff. See Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620 (1972).

To allow plaintiff to recover under the facts presented by this case, would allow recovery solely upon proof of an accident that occurred on a public highway when ice or water was present and would accomplish what the law prohibits, i.e., making the state a guarantor or an insurer against all injuries which occur on public roads. Certainly such a result is untenable and cannot be condoned.

Accordingly, we conclude that Mrs. McKinnie failed to prove any acts of negligence on the part of the Department and the trial court was not in error in rejecting her demands.

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

JUDGMENT AFFIRMED.

      . La.C.C. Art. 2317 provides in part:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody...

      . La.C.C. Art. 2315 provides in part:
      Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it...

      . We feel compelled to note that under the facts of this case, it is just as probable that the water or ice got on the road from a circumstance entirely unconnected with rainfall or drainage. We could speculate and conjure up several other related sources of the water, e.g., a car radiator bursting earlier at the site, a travel trailer or motor home emptying a holding tank at that point, or some other third party emptying water on the road. While at first glance, this seems to be somewhat farfetched, there is no less proof regarding such sources than was presented to the court concerning rain and resulting faulty drainage. Certainly, we cannot and will not allow recovery based on such speculation and conjecture. The fact that an accident occurred at this site alone does not elevate the condition of the road to that of an unreasonably dangerous condition of which the Department had actual or constructive notice.