text:
    Dorothy Webster SILAS, Plaintiff-Appellee, v. Albert SILAS, Jr., Defendant-Appellant.
    No. 8229.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Eugene Cicardo, Alexandria, for defendant-appellant.
    Edward Larvadain, Jr., Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Dorothy Webster Silas brought suit against Albert Silas, Jr., seeking a divorce on the grounds of adultery and, alternatively, a separation from bed and board on the ground of abandonment. The defendant answered and filed a reconventional demand, seeking divorce on the grounds of living, separate and apart for one year.

The trial court, without reasons, granted a judgment of divorce in favor of the defendant. Plaintiff was granted custody of their six year old child. The judgment awarded plaintiff $250.00 per month alimony pendente lite and permanent alimony in the same amount. The court also awarded plaintiff $350.00 per month as child support retroactive to the filing of the petition.

The defendant appeals raising the following issues:

(1) Whether the plaintiff was entitled to permanent alimony under the requirements of Civil Code art. 160; and
(2) If plaintiff met these requirements, whether the awards of alimony and child support are excessive.

Civil Code art. 160 governs alimony after divorce and reads as follows:

“When a spouse has not been at fault and has not sufficient means of support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
“In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances

Alimony after divorce is awarded to a spouse only if that spouse proves that he or she has insufficient means of support. Expenses which should be considered in determining the needs of the claimant spouse are primarily those of food, clothing and shelter. Also, included are other necessary items such as reasonable transportation expenses, utilities and household expenses. Volker v. Volker, 398 So.2d 134 (La.App. 3rd Cir. 1981); Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir. 1980); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

The plaintiff is employed by the Rapides Parish School Board at a gross salary of $12,000.00 per year.

The record establishes that the plaintiff is a well-educated, self-sufficient person. She has no unusual or major financial obligations. In the months prior to trial she has even consistently maintained a $50.00 per month savings plan. We find that the plaintiff has sufficient means to provide herself with the basic necessities of life. The trial court erroneously awarded the plaintiff $250.00 per month permanent alimony and the judgment must be reversed in this regard.

We now turn to the award of $350.00 for child support. The defendant argues that since both parents are obligated to support a child of the marriage, that equal financial contributions must be made. He then reasons that $700.00 a month is well above the amount needed to support a six year old child.

The defendant’s position is without merit. Child support should be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. Ducote v. Ducote, 339 So.2d 835 (La.1976). The defendant earned over $23,-000.00 the year before trial and testified that he expected to earn approximately $25,000.00 in 1980. Considering all the circumstances, we find that the defendant is in a much better position to meet the bulk of the child’s financial needs than is the plaintiff.

The trial court is vested with wide discretion in determining child support. Such a determination will not be disturbed by an appellate court unless a review of the record indicates that the trial judge abused that discretion. Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir. 1979); Dupre v. May, 365 So.2d 1173 (La.App. 3rd Cir. 1978); Gravel v. Gravel, 331 So.2d 580 (La.App. 3rd Cir. 1976).

Given the relative financial position of the two parties, considering their earnings and necessary expenses, we do not think that the trial court’s award of $350.00 per month for child support is an abuse of discretion.

For the above and foregoing reasons, the judgment of the trial court, condemning defendant to pay permanent alimony to plaintiff, is reversed. The trial court judgment is affirmed in all other respects. Costs of this appeal are to be paid one-half by the plaintiff-appellee and one-half by the defendant-appellant.

REVERSED IN PART; AFFIRMED IN PART.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Richard Dale TRAHAN, Plaintiff-Appellee, v. Harold L. BROUSSARD et al., Defendants-Appellants.
    No. 8234.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Darrell J. Hartman, Kaplan, for defendants-appellants.
    Cooper & Sonnier, John Ortego, Abbe-ville, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

Richard Dale Trahan (Plaintiff) brought this action for breach of a building contract or, in the alternative, redhibition against Harold L. Broussard d/b/a H. L. Broussard Builders (Defendant), to recover damages for the alleged faulty construction of a pool house and game room.

The trial court rendered judgment in favor of plaintiff and defendant appealed. Defendant presents two issues:

(1) Whether the trial court committed manifest error in finding defendant liable to plaintiff;
(2) Whether the trial court used the proper measure in determining the amount of damages it awarded plaintiff.

FACTS

Plaintiff and defendant entered into an oral contract whereby defendant agreed to construct an addition to plaintiff’s home, consisting of a pool room and a game room on a cost-plus basis. The final price for the addition was approximately $18,700.00 and construction was completed around the end of October, 1977.

Plaintiff first began to notice deficiencies in the structure in August, 1978, which grew worse with the passage of time. The building is now in such condition that it is unsafe to use and would probably collapse but for the extraordinary measures taken by plaintiff.

Plaintiff instituted this action on July 27, 1979, alleging that defendant (who was the general contractor for the project) had breached the implied warranty of fitness in the building contract, and his duty to perform in a workmanlike manner. Plaintiff further alleged, in the alternative, that he had purchased the addition or the services provided by defendant in constructing the addition and that certain defects in the building rendered it unfit for the purposes for which it had been constructed (i. e., redhibition).

The trial court rendered judgment against the defendant and awarded plaintiff the sum of $29,385.35 in damages. Defendant was granted a devolutive appeal.

DEFENDANT’S LIABILITY

Plaintiff asserted two causes of action against the defendant in the court below. The first was that there existed, a construction contract between the parties which was breached when defendant failed to perform properly under it. Plaintiff’s second cause of action, plead in the alternative, was that a contract of sale existed between the parties which was breached when the defendant delivered a construction which was so defective that it was unfit for the purposes it was intended to serve, i. e., redhibition.

We must first determine whether the contract is a construction contract or a contract of sale. In Duhon v. Three Friends Home Builders Corporation, 396 So.2d 559 (La.App. 3 Cir. 1981), we had occasion to resolve an identical issue. Plaintiffs there brought an action in redhi-bition seeking to recover for an allegedly defective house built for them by defendant. Plaintiffs had negotiated with defendant to build the house and choose the floor plan and color scheme they desired. Defendant then constructed the house and it was moved onto plaintiffs’ lot. Thereafter, plaintiffs noticed several major defects in the house. Defendant was unsuccessful in its attempts to repair the house, and plaintiffs brought suit, demanding a rescission of the sale or in the alternative, a reduction in price, plus attorney’s fees.

Defendant filed a motion for summary judgment contending that the contract entered into between the parties was a contract to build and, therefore, plaintiffs could not recover in redhibition. Plaintiffs, on the other hand, contended that the contract was a contract to sell a future thing, the sale becoming effective on completion of the house.

Duhon set forth three major factors which distinguish a contract to build from a contract of sale. First, in a contract to build, the “buyer” has some control over the specifications of the object. Second, the negotiations in a contract to build take place before the object is constructed. Third, and perhaps most importantly, a building contract contemplates not only that one party will supply the materials, but also that that party will furnish his skill and labor in order to build the desired object.

We find all three factors to be present in the action before us. Here, the contract contemplated the erection by defendant of an addition to plaintiff’s home which would enclose a heated swimming pool and provide a game room. Therefore, we find that the contract in question was a construction contract, and thus plaintiff failed to state a cause of action in redhibition, as no contract of sale existed. See Mangin v. Jorgens, 24 So.2d 384 (La.App. Orl. Cir. 1946); Papa v. Louisiana Metal Awning Company, Inc., 131 So.2d 114 (La.App. 2 Cir. 1961); and Henson v. Gonzalez, 326 So.2d 396 (La.App. 1 Cir. 1976).

It is implicit in every construction contract that the work of the builder be performed in a good, workmanlike manner, free from defects in materials or workmanship. Martin v. AAA Brick Company, Inc., 386 So.2d 987 (La.App. 3 Cir. 1980); Neel v. O’Quinn, 313 So.2d 286 (La.App. 3 Cir. 1975), writ denied, 319 So.2d 440 (La.1975); Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2 Cir. 1974); Merrydale Glass Works, Inc. v. Merriam, 349 So.2d 1315 (La.App. 1 Cir. 1977), writ denied, 350 So.2d 1211 (La.1977).

There was little dispute as to the present condition of the structure. The evidence shows that the walls of the structure are sagging or bowed to the outside; the roof ridge beam sags down approximately 8V2 inches at one point; the roof leaks; the interior and exterior paneling in the bath area of the pool enclosure is warped; the interior and exterior paneling in the pool enclosure itself is warped; and, there are areas of the slab on which the structure was built that have no proper footing. Plaintiff had to stretch a wire rope from wall to wall and then tighten it with turnbuckles to prevent the structure from collapsing. There is also evidence of damage to plaintiff’s home, to which the structure is attached.

Plaintiff argues that defendant failed to complete all of the work contracted for; used defective materials for construction; performed the work in an improper and unworkmanlike manner; and, used defective designs in constructing the building.

Plaintiff testified that defendant told him there would be no need to engage the services of an architect to design the building as defendant could take care of any problems which might arise during construction. Defendant’s own testimony was to the effect that plaintiff had asked him if he would need an architect to design the building. Defendant testified that he asked plaintiff what he wanted in the building and plaintiff showed him. Defendant testified that he then replied, “What you need an architect for if you’re going to show me what you want in the building?” Defendant is the one who designed the building.

David Burdette was accepted by the court as an expert in the field of civil engineering. It was his opinion that the design selected by defendant was defective and that it was inadequate to support the weight of the roof. Burdette stated he would have used a different design. He also testified that he would have used stronger pieces of lumber and would have placed them closer together had he chosen defendant’s design. Burdette was of the opinion that the building started to fail during construction based on certain things he found during an inspection thereof, i. e., pieces of plywood that had been scribed to compensate for the sagging roof.

Joe Willie Garteiser was accepted by the court as an expert in the field of architecture. He was also of the opinion that the design and materials used by defendant were inadequate to support the weight of the roof and that the building had started to fail while it was being constructed.

Defendant argues that the damages sustained by plaintiff were brought about by his own omission and, therefore, the trial court’s finding of liability against him is manifestly erroneous. Defendant contends that plaintiff knew there would be a problem with moisture in the structure but failed to properly ventilate it to remedy the problem. It is defendant’s position that the design of the roof support system was adequate. He argues that moisture entering the attic (which was absorbed by the lumber) added weight to the roof and that this was an intervening cause of the failure of the roof support system.

Defendant presented the testimony of William Bradshaw, who was recognized by the court as an expert in the field of architecture and argues that Bradshaw found the design to be adequate. However, the record shows that Bradshaw found defendant’s design to be adequate in theory only. He also testified that he would have used a different design in constructing the roof support system.

We find that defendant used a defective design in building the roof support system of the addition, and that the consequences of using this defective design became apparent even as the building was being constructed. Therefore, defendant breached his contract with plaintiff by failing to construct a building which was free from defects in materials and workmanship. We also find that the presence of moisture in the structure simply hastened the ultimate failure of the structure which was caused by defendant’s defective design.

Our review of the record establishes that the trial court’s finding that the law and evidence are in favor of plaintiff on the issue of liability is not clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

TRIAL COURT’S COMPUTATION OF DAMAGES

The trial court accepted Lurcey Landry as an expert in the field of building and residential construction. He estimated that it would cost $34,571.00 to demolish the present structure and to properly construct a new one. He allowed $3,600.00 for demolition and $1,229.00 as the cost of repairing the damage done to plaintiffs home in computing his estimate.

The trial court awarded plaintiff the sum of $29,385.35 in damages. This figure was arrived at by using the sum of $34,571.00, less 15% of that figure as the value of materials that could be salvaged from the existing structure. Essentially,, the trial court was attempting to place plaintiff in the position he would have occupied had defendant properly performed under the contract.

Defendant argues that the trial court erred in its computation of damages. Instead, defendant contends that where a construction is so defective, as to be useless, the loss sustained is the price paid for the construction, plus the cost of removal thereof, less the value of the work done which enures to the benefit of the plaintiff. Defendant computes plaintiff’s recovery as being $18,707.31 (the price paid for the construction) plus $3,200.00 (cost of demolishing the structure), less $2,700.00 (the value of the concrete slab which would remain around the pool) for a total of $19,207.31.

The basic provision with respect to a contractor’s liability for failure to properly perform a building contract is LSA-C.C. Article 2769 which provides:

“Art. 2769. Contractor’s liability for non-compliance with contract
Art. 2769. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

We have found that defendant failed to execute the work in the manner which is implied in all construction contracts, i. e., in a good, workmanlike manner, free from defects in materials and workmanship. Therefore, under LSA-C.C. Article 2769, defendant is liable in damages for the losses suffered by plaintiff which resulted from defendant’s non-compliance with the contract. Further, out of the five experts who testified at trial, four recommended that the existing structure be torn down, as it was so defective that it was beyond repair. It is obvious that the trial court found this to be a fact and we concur in that finding.

This Court, in Neel v. O’Quinn, supra, had occasion to review an action brought by homeowners against a building contractor for the alleged defective construction of the premises. The contractor filed a reconven-tional demand seeking the balance allegedly due on the contract. We stated in Neel, at page 290, that:

“. .. [sic] if the defects are such that cannot be corrected except by removing and replacing the construction, under the jurisprudence the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. In addition, the owner is entitled to damages. National Water-Purifying Co. v. New Orleans W. W. Co., 48 La. [Ann.] 773, 19 So. 865 (1896); Toepfer v. Thionville. 229 So.2d 415 (La.App. 4th Cir. 1974); Scott Fence & Insulation Co., Inc. v. Boudro, 252 So.2d 458 (La.App. 4th Cir. 1971); Montague v. Milan, 67 So.2d 351 (La.App. Orl. Cir. 1953); Home Services v. Marvin. 37 So.2d 413 (La.App. Orl. Cir. 1948).”

See also Martin v. AAA Brick Company, Inc., supra.

The Louisiana Supreme Court, in Ilgenfritz v. Radalec, 74 So.2d 903 (La.1954), had before it an action by homeowners for damage incurred because of the installation of a defective heating plant. The court in II-genfritz, quoted with approval the following language found in Montague v. Milan, 67 So.2d 351, at 354 (La.App. Orl. Cir. 1953) which reads:

“However, when the contractual work fails to measure up to the specifications of the contract and nothing can effectually remedy the existing condition and the owner is forced thereby to make alterations in his plans in order to acquire a useable structure, he is not obligated to settle with the contractor in conformity with the doctrine of ‘substantial compliance’, unless he desires to use whatever the contractor has created. To elucidate, in such a situation the owner mav sav to the contractor that nothing that he mav do will produce the building which was contemplated in the plans, and that. therefore, the contractor will be required to entirely remove what he has erected. On the other hand, the owner may say (or so act) to the contractor that what he had erected is not the structure which was designed, but that, the owner, nevertheless, by effecting changes in his plans, can use what the builder has constructed. If he decides to follow this alternative, he is liable to the contractor for what has been erected, less the amount it may cost him to secure a useable building, even though the construction is not such as was contemplated by the plans. * * * ” (Emphasis ours.)

Ilgenfritz found that the heating system there (like the structure in the action before us) was totally useless, and with respect to the measure of damages which the homeowners could recover, stated, at page 906, that:

“The standard measure of damages is established by the Code as the losses ensuing from non-compliance. It is shown in this case that the losses sustained is the payment for a useless heating system and its installation, the cost of removing that useless heating system, and the cost of restoring plaintiffs’ home to its former condition. These are all losses under the contract. Defendant is liable for those losses. In fact, there should be compensation up to and to the extent for the losses actually sustained in this case amounting to restoration of this status quo:”

Ilgenfritz then went on to quote LSA-C.C. Article 1928, which provides:

“Art. 1928. Right to require undoing of acts in violation of contract
Art. 1928. The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.”
See also Sartori v. Hunter, 158 So.2d 457 (La.App. 2 Cir. 1963), writ denied, 159 So.2d 287 (La.1964).

In our opinion, it was error for the trial court to fix plaintiff’s damages at what it would cost to replace the existing structure, with a properly constructed new one, as this would place plaintiff in an improved condition to which he is not entitled. Plaintiff is only entitled to be returned to the condition he was in prior to the contract. See Stream v. LeJeune, 352 So.2d 714 (La.App. 3 Cir. 1977); Greer v. Rohrer, 346 So.2d 1290 (La.App. 3 Cir. 1977).

We find that plaintiff suffered the following losses. First, the payment he made to defendant for this useless structure ($18,-707.31). Second, the cost of demolishing said structure; removing the defective slab on which it was built, and restoring plaintiff’s home to its former condition. Frank Hardee was accepted by the trial court as an expert in the field of building construction. He estimated that it would cost between $7,000.00 and $8,000.00 to do the above. Lurcey Landry (the above mentioned expert who was accepted by the court as such) estimated that it would take $7,500.00.

We award plaintiff $7,500.00 for these losses for a total award of $26,207.31.

For the above and foregoing reasons, the judgment of the trial court is amended so as to award plaintiff the sum of $26,207.31, plus legal interest thereon from date of judicial demand, and as amended, is affirmed in all other respects.

Costs of this appeal are assessed one-half to defendant-appellant, and one-half to plaintiff-appellee.

AFFIRMED AS AMENDED.


author: GUIDRY, Judge.

text:
    Mrs. Sillar McCARTNEY et al., Plaintiffs-Appellants, v. Dave STAFFORD, Defendant-Appellee.
    No. 8242.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      John Makar, Natchitoches, for plaintiffs-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

The instant case, a petitory action, was consolidated in the trial court with a boundary action entitled Stafford v. McCartney, La.App., 399 So.2d 789 and remains so on appeal. The latter suit bears out docket number 8243. We this day render a separate opinion in that suit.

Our previous consideration of this matter resulted in the reversal of an earlier judgment and a remand of the instant proceeding for consolidation with the boundary action and for the filing of any additional pleadings and the admission of any additional evidence which the parties desired in connection with both cases. See 307 So.2d 782 (La.App. 3rd Cir. 1975). This appeal comes to us after a judgment on remand.

The records on appeal in these consolidated cases are woefully incomplete. From a review of our previous opinion and the records lodged with this court, we find the history of this litigation to be as follows:

The plaintiffs in this suit, Mrs. Sillar McCartney, et al., filed a possessory action coupled with a demand for damages against defendant, Dave Stafford. The McCart-neys alleged that Stafford disturbed their possession of a tract of land located in the Northwest Quarter of Section 3, T9N, R10W, Natchitoches Parish, Louisiana. Stafford answered, converting the suit to a petitory action. Specifically, Stafford alleged that he had valid record title to a tract of land which extended to the section line of Section 3, T9N, R10W, and that he had acquired property beyond his title to a visible boundary by the prescription of ten and thirty years under LSA-C.C. Articles 852 and 853. As to the latter claim, Stafford asserted that he possessed to an old fence located south of the section line which separated his land from that of the McCart-neys. Subsequently, the two suits were consolidated for trial. The McCartneys opposed consolidation of the two actions contending that the court-appointed surveyor had not yet made the survey, thus, the boundary action was not ready for trial. The district judge agreed. The parties then proceeded to try the petitory action. The trial judge, in his written reasons for judgment, noted that he could not decide the question of ownership of the subject land without knowing the extent of the boundaries. Although rendering judgment in favor of the McCartneys, the trial court did not decide the issue of title, but rather, rendered judgment maintaining the McCartneys in possession of the disputed property and awarding them damages in the amount of $900.00. Upon appeal to this court, we concluded that the defendant was entitled to have his petitory action decided. We did not determine the extent of property owned by the parties, but rather remanded the matter of the trial court for decision of all issues reserving all rights to the parties to assert in the consolidated cases whatever claims to ownership they may have by recorded title, by prescription, or otherwise. Our intention in remanding the case to the trial court was for the lower court to decide the petitory action and the boundary action as well as resolve the plaintiffs’ claim for damages.

The records lodged in the instant appeals are so deficient and incomplete that we are unable to ascertain exactly what transpired after remand except that by order dated May 29, 1979, the trial judge ad hoc appointed Russell Engineers of Logansport, Louisiana, to prepare and submit a survey of the boundary between the subject properties. Presumably, this survey was conducted and the original was filed with the trial court on or about July 12, 1979. The record reflects that subsequent to the filing of the survey, the then-attorney for the McCartneys filed an exception to the survey alleging that the survey conducted by Russell Engineers was not in compliance with the formalities required for the execution of such surveys as provided for in LSA-C.C. Articles 833 and 834. The next document in the record is a judgment rendered by the trial court on September 29, 1979 which overrules plaintiffs’ exception and purports to fix the boundary between the properties of the parties according to the survey conducted by the Russell firm. In addition, the judgment orders that the cost of the survey be taxed as costs and that the McCartneys be cast for all costs in both proceedings. The McCartneys appealed and urge that (1) the only issue before the court at the time of the hearing on September 21, 1979 was the propriety of plaintiffs’ exception to the survey, thus the trial court erred in adjudicating the boundary issue; and, (2) neither the plaintiffs nor plaintiffs’ counsel were notified regarding the date of the hearing, hence, the hearing was conducted without the plaintiffs’ interests being represented. We observe also that the trial court has still not determined Stafford’s petitory action nor the plaintiffs’ claim for damages.

A review of this court’s earlier decision reveals clear instructions to the lower court. We remanded the case for the express purpose of resolving a 11 issues presented in both suits at one time. It is well settled and a traditional procedural policy of Louisiana courts that piecemeal trial of cases is disfavored except where permitted by statutes. McDonald v. Book, 215 So.2d 394 (La.App. 3rd Cir. 1968); Smith v. Hanover Insurance Co., 363 So.2d 719 (La.App. 2d Cir. 1978).

After considering the incompleteness of the records before us, even as to the determination of the correctness of the trial court’s conclusions regarding the boundary action, we conclude that the consolidated cases must be again remanded. Accordingly, for the reasons assigned, the judgment appealed from is reversed and set aside and it is now ordered, adjudged and decreed that these consolidated matters be remanded to the trial court for a new trial on all issues presented in both matters consistent with the views herein expressed. Costs of this appeal are assessed to Dave Stafford. Assessment of all other costs are to await a final determination of these matters.

REVERSED AND REMANDED.


text:
    Dave STAFFORD, Plaintiff-Appellee, v. Ray McCARTNEY et al., Defendants-Appellants.
    No. 8243.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    John Makar, Natchitoches, for defendants-appellants.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of McCartney v. Stafford, 399 So.2d 787, the judgment of the trial court is reversed and set aside and this matter is remanded to the trial court for a new trial on all issues presented.

REVERSED AND REMANDED.


author: DOUCET, Judge.

text:
    GUARANTY BANK & TRUST COMPANY OF ALEXANDRIA, Louisiana, Plaintiff-Appellant, v. Billy W. DANIELS, Defendant-Appellee.
    No. 8245.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Provosty, Sadler & deLaunay, LeDoux R. Provosty, Jr., Alexandria, for plaintiff-appellant.
    Voelker, Ragland, Brackin & Crigler, Charles R. Brackin, Lake Providence, for intervenor-appellee.
    Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Guaranty Bank & Trust Company of Alexandria, Louisiana, brought this suit to recover money due on six promissory notes executed by defendant, Billy W. Daniels. The notes were secured by a pledge of a soybean crop produced by defendant on land that he leased from James Domen-geaux, Bob F. Wright and G. L. Dozier, d/b/a Meade Plantation.

Plaintiff obtained a writ of sequestration, pursuant to which it seized approximately 18,000 bushels of soybeans that were stored in the Alexandria Mill & Grain Elevator, Inc. in the names of the landowners. The landowners intervened, claiming ownership of the soybeans free of any crop lien in favor of plaintiff. Prior to trial, the soybeans were sold pursuant to a joint motion by all of the parties, and the proceeds were retained by the Sheriff of Rapides Parish and deposited in an interest bearing bank account.

Following a trial on the merits, a default judgment was rendered in favor of plaintiff and against defendant. Judgment was also rendered in favor of the intervenors, recognizing their ownership of the soybeans that were seized, dissolving the writ of sequestration, and ordering the Sheriff of Rapides Parish to surrender to them the funds derived from the sale of the soybeans together with the accumulated interest. From that judgment, plaintiff appeals.

The only issue on appeal is whether the trial court erred in finding that the soybeans were owned by the intervenors.

The parties agree that the resolution of this issue hinges on the interpretation to be given to the following provision of the lease entered into by defendant and the interve-nors:

“LESSEE agrees to pay LESSOR a total rental of Twenty-five (25%) of all the crop or $150,000.00 whichever is more.”

The intervenors contend that under this provision, defendant was required to deliver 25% of the crop to them, and that in the event that 25% of the crop was not valued at $150,000.00, defendant was obligated to make up the difference. They further argue that under the above provision and LSA-R.S. 9:3204 , they were at all pertinent times the owners of the soybeans that were seized by plaintiff.

Plaintiff, on the other hand, contends that under the above provision of the lease, defendant was required to pay the interve-nors $150,000.00 or 25% of the proceeds from the sale of the crop, whichever amount was greater. It argues that LSA-R.S. 9:3204 is inapplicable because defendant’s obligation in either ease was to pay a sum of money, and not to deliver a portion of the crop.

We find that the lease, when read in its entirety, clearly supports the construction urged by the intervenors. In a later paragraph, the lease provides:

“LESSOR and LESSEE specifically agree that LESSEE shall not in any way encumber, mortgage, or place a crop lien on the Twenty-five (25%) percent of the crop due LESSOR. Further, LESSOR shall be entitled to sell his Twenty-five (25%) percent at any time LESSOR desires after the crop has been delivered to the elevator, should LESSEE desire to wait (delay) on the sale in expectation of higher commodity prices. Should LESSOR elect to sell its 25% percent of the crop, then LESSOR and LESSEE (elevator) shall pay LESSOR at that time without waiting until the sale of LESSEE’S portion of the crop.”

In view of the language, we find plaintiff’s position untenable. We conclude, as did the trial judge, that the intervenors owned the soybeans that were seized by plaintiff.

We note that plaintiff argues alternatively that even if the intervenors owned the soybeans, it acquired a superior right to them by virtue of the fact that its crop pledge was recorded, while the lease was not. This argument overlooks the fact that the intervenors do not have to rely on the lease in order to establish their ownership of the soybeans insofar as third persons are concerned. If the lease were deemed to be ineffective, the intervenors would be considered the owners of the entire crop under the general rules of accession. LSA-C.C. Articles 483 and 485. Furthermore, plaintiff could not by recording the pledge acquire any greater rights than defendant could lawfully convey to it. Defendant could not lawfully pledge the intervenor’s portion of the crop without their consent. LSA-C.C. Arts. 3145 and 3146. Since defendant clearly did not have their consent, the pledge could only affect the part of the crop that defendant owned.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff.

AFFIRMED.

      . LSA-R.S. 9:3204 provides:
      “In a lease of land for part of the crop, that part which the lessor is to receive is considered at all times the property of the lessor.
      “The lessee or any person acting with his consent who sells or disposes of the part of the crop belonging to the lessor shall be fined not more than one thousand dollars, or imprisoned for not more than one year, or both.”

      . Although it was not specifically mentioned in his written reasons, the trial judge apparently found that the beans that were seized constituted 25% of the total crop. That finding, which is supported by testimony in the record, has not been challenged on appeal.


author: STOKER, Judge.

text:
    Charles ST. ROMAIN, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    No. 8248.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Darrel D. Ryland, Marksville, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, Albin A. Provosty, III, Alexandria, for defendant-ap-pellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   STOKER, Judge.

Plaintiff, Charles St. Romain, sued defendant, Insurance Company of North America, to recover workers’ compensation benefits and penalties and attorney’s fees. Plaintiff appeals the judgment which granted him benefits but denied him penalties and attorney’s fees.

The sole issue on appeal is: Whether the defendant acted arbitrarily, capriciously or without probable cause in failing to pay plaintiff workers’ compensation benefits so as to be subject to penalties and attorney’s fees under LSA-R.S. 22:65s.

At trial the plaintiff and defendant entered into the following stipulations:

“1. It is jointly stipulated that Mr. Charles St. Romain, plaintiff herein, was injured during the course and scope of his employment with Harry Hebert Homes on Oct. 17, 1979;
2. It is jointly stipulated that the plaintiff is totally disabled as of the date of this trial;
3. It is jointly stipulated that at all times pertinent herein that the defendant-insurer had insured plaintiff under a standard form workmen’s compensation policy covering Mr. St. Romain for the on-the-job injuries sued upon herein; and,
4. It is jointly stipulated that claimant is entitled to the maximum compensation rate allowed by law.” Tr. 23

The record reveals that plaintiff retained counsel to represent him in his claim for compensation on October 21, 1979. In a letter dated October 22, 1979, counsel notified Nugier Insurance Company and the agent who sold the compensation policy of plaintiff’s on the job injury and made demand for the commencement of compensation payments to plaintiff. See Plaintiff’s Exhibit 8. During the second week of December, counsel for plaintiff received a check for $1,036.00 representing compensation due plaintiff for the period of October 17,1979, through December 6, 1979. Counsel received a second check in the latter part of December representing compensation due plaintiff for the period of December 6,1979, through December 20,1979. On January 4, 1980, plaintiff’s counsel contacted defendant’s adjustor and informed him that plaintiff had not received compensation subsequent to December 20,1979. In a letter dated January 8, 1980, defendant’s adjustor assured counsel that plaintiff’s benefits would be brought up to date immediately. See Plaintiff’s Exhibit 9. This was not done and plaintiff filed suit on January 10, 1980.

The record is deficient as to the exact amount of compensation paid to plaintiff by defendant. We glean from the record that plaintiff received only one compensation check subsequent to December 20,1979, and this was in late February or early March of 1980. Plaintiff received no compensation .from that time until trial of this matter on September 12, 1980.

On cross examination of the plaintiff counsel for defendant attempted to elicit from plaintiff an admission that he received checks for compensation consistently from December 20, 1979, to March 3, 1980. Plaintiff denied receiving payments on a consistent basis during this period. Plaintiff admitted that he possibly received one check for $296.00 in late February or early March. See Tr. 68. At trial defendant offered no proof that plaintiff received compensation payments for the period of December 20, 1979, to March 3, 1980. Defendant did not offer into evidence the endorsed or cancelled compensation checks as proof that such benefits were paid by defendant and received by plaintiff; nor did defendant offer any proof that it paid benefits to plaintiff subsequent to March 3, 1980.

In the case before us defendant did not file a brief on appeal urging any reasons for its failure to pay benefits; nor did defendant at trial offer any testimony to justify its termination of benefits. A workers’ compensation carriers’ termination of benefits without a showing of probable cause for such termination is arbitrary and capricious and subjects the carrier to liability for penalties and attorney’s fees. Upchurch v. Bituminous Insurance Company, 340 So.2d 627 (La.App. 2nd Cir. 1976), writ refused, 342 So.2d 871 (La.1977). Defendant has not shown probable cause for its termination of benefits.

We have carefully examined the record in an attempt to determine why defendant terminated benefits. The record reveals that following plaintiff’s injury he underwent surgery on December 4, 1979, to remove a ruptured disc. Dr. Thomas B. Flynn, a neurosurgeon, performed the operation. Dr. Flynn saw plaintiff on four occasions following the operation for postoperative care. Dr. Flynn released plaintiff to return to work after the visit on March 17, 1980. See Flynn Exhibit 2. It is not clear from the record when the defendant received a report from Dr. Flynn stating that plaintiff could return to work. Defendant did not suggest at trial that it relied on Dr. Flynn’s report in terminating benefits. In fact defendant terminated benefits weeks prior to the time that Dr. Flynn released plaintiff to return to work.

Assuming that defendant relied on Dr. Flynn’s report to justify its failure to pay benefits subsequent to March 17, 1980, we find that as of mid-April 1980, defendant was on notice that there was a conflict in the medical reports rendered on plaintiff’s condition. This conflict became known to defendant after counsel for plaintiff in a letter dated April 8, 1980, forwarded to defendant’s adjustor the medical report of Dr. Thomas Kennon. Dr. Kennon, an or-thopaedic surgeon, examined plaintiff on April 1, 1980, and reported that plaintiff was totally and completely disabled from performing any activities requiring bending or lifting with his back. Upon receipt of Dr. Kennon’s report it was incumbent upon the defendant to make a reasonable effort to ascertain plaintiff’s exact condition. The record in this case is devoid of evidence as to such an inquiry. The defendant was arbitrary and capricious in failing to make such an inquiry.

On September 4, 1980, defendant deposed Dr. Thomas B. Flynn for a second time. During this deposition Dr. Flynn stated that he examined plaintiff on September 2, 1980, and found him at that time to be suffering from a fixed pain syndrome requiring psychiatric counseling before he could return to work. Certainly at this point defendant was arbitrary and capricious in not resuming, and bringing up to date, payment of weekly compensation benefits to plaintiff.

We find that the defendant-insurer acted without probable cause in failing to consistently pay benefits to plaintiff after December 20, 1979. Additionally, we find that the defendant was arbitrary and capricious in terminating benefits in early March, 1980. So finding, defendant is liable for penalties and attorney’s fees in accord with LSA-R.S. 22:658.

In determining the amount of attorney’s fees to be awarded, the relevant factors include the degree of skill of the attorney and the volume of work performed by him in prosecution of the claim. Considering these factors we award attorney’s fees of $3,000.00.

For the above and foregoing reasons the judgment of the trial court is affirmed insofar as it declares plaintiff to be totally and permanently disabled. The judgment is reversed insofar as it denies plaintiff recovery of statutory penalties and attorney’s fees against defendant, Insurance Company of North America. It is hereby ordered that there be judgment in favor of plaintiff and against defendant in the amount of $3,000.00 for attorney’s fees plus 12% penalties on all weekly benefits which became due from and after December 20, 1979. Costs of this appeal are assessed to defendant.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . LSA-R.S. 22:658 provides as follows:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.

      . Plaintiff received initial conservative treatment following the injury from Dr. John E. Lemoine on October 22, 1979. On October 31, 1979, Dr. F. C. McMains, an orthopaedist, examined plaintiff. Dr. McMains issued a report on November 5, 1979, stating that plaintiff possibly had an early ruptured intervertebral disc. Dr. McMains referred plaintiff to Dr. Flynn.

      . Plaintiff admitted payment of compensation through December 20, 1979. Plaintiff also admitted the possibility that he received one compensation check at some time within the next month or so. The trial court made no finding of the total amount of compensation paid or the date through which compensation was paid. The reasons for judgment and judgment simply provided for payment of weekly compensation for total and permanent disability “from October 17, 1979, with credit for sums already paid...”. As we have noted the record does not clearly establish whether any payments were actually paid for the period after December 20, 1979. If any payments were made after December 20, 1979, nothing in the record establishes when such payments were made to plaintiff. Under the circumstances we have provided December 20, 1979, as the date from which the penalty provision shall apply.


text:
    Georgia Nell Baggett GUILLORY, Plaintiff-Appellee, v. Carlise SIMMONS, Defendant-Appellant.
    No. 8249.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      C. W. Berry, Jr., Oakdale, for defendant-appellant.
    John E. Demoruelle, Kinder, for plaintiff-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Georgia Nell Baggett Guillory, brought this suit against defendant, Carlise Simmons, seeking damages arising out of defendant’s breach of a building contract. Following a trial, judgment was rendered in favor of plaintiff and against defendant in the sum of $4,081.76. From that judgment, defendant appeals. We affirm.

The record shows that in December of 1977, plaintiff engaged defendant to construct a home for her in Allen Parish. At that time, plaintiff was married and living in community with her husband, Larry Guillory. Mr. Guillory did not participate in any of the negotiations or in the agreement reached by the parties, however, because he was out of the country. Plaintiff and her husband were judicially separated after the house had been substantially completed. They subsequently entered into a community property settlement, pursuant to which Mr. Guillory conveyed his interest in the house to plaintiff, and plaintiff assumed the obligation to repay a loan that they had taken out to pay for its construction.

After the house was constructed and defendant was paid all of the money due him under the building contract, plaintiff brought this suit, alleging that the house contained numerous vices of construction. According to her allegations, some of the vices were caused by the absence of materials needed to complete the construction, and others resulted from the fact that the house had been constructed in an unworkmanlike manner.

Much of the evidence presented at the trial pertained to the nature of the building contract. Plaintiff attempted to show that defendant had agreed to do a “turnkey” job, while defendant attempted to prove that he had agreed to provide labor only, plaintiff being required to furnish all materials. In addition, both parties called expert witnesses who testified with regard to the quality of the construction. Plaintiff’s expert submitted an extensive list of defects that he found in the home. He attributed some of the defects to poor workmanship and others to the fact that the construction had not been completed.

The trial court found that neither party had proved their claims about the nature of the contract by a preponderance of the evidence. He concluded, however, that regardless of the nature of the contract, plaintiff was entitled to recover any damages caused by defendant’s failure to perform the construction in a workmanlike manner. Accordingly, he awarded plaintiff the costs of removing the defects that her expert attributed to poor workmanship, but he did not allow recovery for those items which were deficient simply because they were incomplete.

On appeal, defendant has voiced numerous complaints about the trial court’s judgment. First, he suggests that plaintiff has not borne her burden of proving that the defects in the house were the result of his poor workmanship. We find no merit in that argument. Plaintiff’s expert, Carlton Savant, testified unequivocally that many of the defects that he found were caused by defendant’s construction of the home in an unworkmanlike manner. Defendant concedes that Mr. Savant is an expert in the construction of homes, and the only evidence that he offered to rebut his testimony was the testimony of Leroy Fontenot. It was established that Mr. Fontenot is also an expert in the construction of homes. The trial court properly discounted his testimony, however, since he testified that he spent only five minutes in the house and did not make a thorough inspection. We conclude that the trial court’s finding that there were defects resulting from defendant’s un-workmanlike construction of the home was not manifestly erroneous. It must therefore be affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Next, defendant argues that the amount of the award is incorrect. He contends that recovery should not have been allowed for correcting any defects not contained in the listing in paragraph three of plaintiff’s petition. That contention is without merit. Plaintiff’s petition clearly states that the listing is non-exclusive. Any complaints that defendant may have had about the sufficiency of the listing were waived as a result of his failure to raise them through the dilatory exception of vagueness or ambiguity of the petition. LSA-C.C.P. Art. 926.

Defendant also argues that the trial court should have limited the amount awarded for correcting the defects to the cost of labor, since plaintiff failed to prove the existence of a “turnkey” contract. That argument is also without merit. The trial court allowed recovery for correcting only those defects that resulted exclusively from defendant’s poor workmanship, that is, only those in which the materials were provided but were not utilized properly. In some instances, the materials that were improperly utilized will have to be replaced in order to correct the defect. Obviously, anyone who is hired to correct the defects will include the cost of those materials as well as his expenses for taxes, overhead, insurance, etc. in determining his fee. Plaintiff is entitled to recover those costs under LSA-C.C. Art. 2769, regardless of the nature of the building contract. We therefore find that the trial court’s award, which is amply supported by evidence in the record is not clearly wrong.

Finally, defendant argues that plaintiff should have been awarded only half of the costs of repairing the defects, because her husband owns an undivided half interest in the claim for damages. We disagree. Any such interest that plaintiff’s husband might have acquired resulted solely from the fact that the house was part of the community of property formerly existing between them. As we noted earlier, plaintiff acquired full ownership of the house in the community property settlement in exchange for her assumption of the obligation to repay a loan secured to pay for its construction. The settlement agreement, which was executed subsequent to the filing of this suit, recites that it is a full settlement of the community and that no further accounting is due either of the parties to it. Under those circumstances, we believe that any interest that plaintiff’s husband might have had in the claim against defendant was transferred to plaintiff, although it was not expressly mentioned in the agreement.

For the above and foregoing reasons, the judgment appealed by defendant is affirmed. All costs of this appeal are assessed against defendant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Collin Huey BAILEY et ux., Plaintiffs-Appellants, v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendant-Appellee.
    No. 8255.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Wilbert E. McReynolds, DeRidder, for plaintiffs-appellants.
    Otha Curtis Nelson, Baton Rouge, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

On July 13, 1978, Claudette Marie Langley gave birth to a child, Emmie Lee Willis. On May 15, 1979, Emmié Lee was found to be a neglected child within the meaning of La.R.S. 14:403 and the judge ordered that her temporary custody be assigned to the Foster Care Services of the Louisiana Department of Health and Human Resources (DHHR).

Ms. Langley executed an authentic act entitled “Voluntary Surrender of Custody of Child for Private Adoption” on July 7, 1980, in which she declared that she was 21 years of age, was the mother of Emmie Lee Willis and was not then married and had not been married within 300 days of the child’s birth. Ms. Langley further voluntarily and irrevocably surrendered the permanent custody of her child for the purpose of private placement and adoption to Collin Bailey and Bertha Ladner Bailey, the petitioners-appellants herein.

The Baileys subsequently filed in the juvenile court a petition for a writ of habeas corpus and for an interlocutory decree of adoption of Emmie Lee Willis. Attached thereto were information and documents pertinent to the proposed adoption, including the mother’s surrender act of July 7, 1980. The prayer was for production of the child, surrender of her custody to the petitioners so that she could be adopted and an interlocutory decree of adoption.

The DHHR answered asserting that the act of surrender executed by Ms. Langley was ineffective as her custodial rights had been terminated by the judgment of May 15,1979, declaring the child to be neglected. Alternatively, the DHHR alleged that such act was obtained by coercion and deception and also that the adoptive parents’ home would not be a suitable one for Emmie Lee.

After a hearing the trial judge concluded Ms. Langley’s act of July 7, 1980, was ineffective insofar as it attempted to modify the juvenile court’s previous judgment granting custody of Emmie Lee to the DHHR on the basis of its finding that Em-mie Lee was neglected. The writ of habeas corpus was vacated and the custody of Em-mie Lee Willis was maintained with the DHHR subject to further orders of the court. From this judgment the Baileys have appealed.

Ms. Langley apparently attempted to utilize the procedure outlined by La.R.S. 9:422.3, which at the time she signed the act provided that a parent could execute an authentic act of voluntary surrender of custody of the child for private adoption. This statute was amended by Acts 1980, No. 187, § 1, to add the following sentences:

“The provisions of this Subpart shall be inapplicable where custody of the child has been removed by court order and placed with the Department of Health and Human Resources and the parent or parents shall have no capacity to execute an authentic act of voluntary surrender of custody as provided for in this Sub-part. Nothing in this Subpart, however, shall alter the provisions for or the effects of a voluntary surrender to an agency.”

Since the effective date of this amendment was September 7, 1980, subsequent to the date on which Ms. Langley executed the act of surrender in favor of the Baileys, we must determine whether it changed the pri- or law or merely clarified it.

At the first hearing the juvenile court, of course, had exclusive original jurisdiction to determine whether or not Em-mie Lee Willis was a neglected child. La. R.S. 13:1570(A)(1); La.C.J.P. Art. 15; State in Interest of Purcell, 337 So.2d 637 (La.App. 3 Cir. 1976). Having determined that she was a neglected child after a contradictory hearing, the judge had the authority to divest the mother of custody and award custody to the DHHR. La.C.J.P. Art. 85; La.R.S. 13:1580.

The appellants argue that despite Emmie Lee having been placed in the custody of the DHHR by order of the juvenile court, the mother still possessed the parental right to consent to the private adoption of the child and her act of surrender was valid. They cite Dillon v. State, 336 So.2d 1066 (La.App. 2 Cir. 1976), as their authority, contending that its decisive facts are similar to the case at bar. We disagree.

In Dillon the mother, while separated from her husband and without financial support, consented to a voluntary, temporary transfer of custody of her children to the State Division of Family Services and a judgment to that effect was signed. She and her husband subsequently reconciled and executed an authentic act declaring their consent to the adoption of the children by their maternal grandparents, the Dillons. A second judge, in an adoption proceeding brought by the Dillons, signed an order giving them temporary custody of the children. However, upon being informed of the first judgment which granted custody to the state, the second judge rescinded his order and maintained the state’s custody. On appeal it was held that the mother’s voluntary relinquishment of custody of the children to the state did not in itself bar her from exercising her parental rights which she had granted to the plaintiffs. Since both parents had consented to the return of the children to the Dillons for the purpose of adoption, it was so ordered. The court noted there had been no judicial determination after a contradictory hearing with the parents that the children were neglected, abused or delinquent and thus required continued state intervention.

As we read Dillon, the voluntary temporary relinquishment to the state of custody of children without the aforementioned judicial determination is revocable by the parents. However, such is not the case where the state has obtained custody after a contradictory hearing and there has been a judicial determination that the child is neglected or in need of care or there are other legal causes for state intervention. Of course, as this court stated in State, ex rel. Mildred Paul v. Department of Public Welfare, 170 So.2d 549 (La.App. 3 Cir. 1965):

“A judgment involving custody, however, is always revocable where conditions warrant its modification. If there should be a substantial improvement in plaintiff’s ability to care for the child and in the home environment, then it may be that in subsequent proper proceedings a modification of the judgment will be justified.”

Therefore, we hold that Claudette Marie Langley’s formal act of voluntary surrender of custody of Emmie Lee Willis for adoption by the plaintiffs is ineffective as the child’s custody was previously granted to the DHHR after a judicial determination that she was neglected, even though that act was executed prior to the 1980 amendment to La.R.S. 9:422.3 which now explicitly disallows such action. The amendment has not changed the law in this respect.

For the foregoing reasons, the judgment of the juvenile court rejecting the plaintiffs’ demand for custody of the child, Em-mie Lee Willis, is affirmed at appellants’ costs.

AFFIRMED.


text:
    Jerry Keith ANDREWS, Plaintiff-Appellant, v. Applying for Adoption (Natural Father-Faron Lee RACCA), Defendant-Appellee.
    No. 8256.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Evans, Bradley & Wallace, Mitchel M. Evans, DeRidder, for plaintiff-appellant.
    Daryl Gold, Leesville, for defendant-ap-pellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

This is an adoption proceeding initiated pursuant to LSA-R.S. 9:422.1. The only issue presented by this appeal is whether the plaintiff, Jerry Keith Andrews, has a right of action under that statute.

The facts are not disputed. Deborah Ann DeWitt and Faron Lee Racca were married in Beauregard Parish on January 9, 1978. On November 21, 1978, a child, Daniel Lee Racca, was born of the marriage. On April 2, 1979, Mrs. Racca obtained a separation from bed and board and was awarded custody of the child by a judgment rendered by the Thirty-third Judicial District Court.

On April 26, 1979, Mrs. Racca obtained a decree of divorce from the District Court of Hardin County, Texas. The Texas court appointed Mrs. Racca managing conservator of the child and ordered Mr. Racca to pay child support in the sum of $150.00 per month. On August 4, 1979, Mrs. Racca and Jerry Keith Andrews, the plaintiff herein, were married in Beauregard Parish.

Testimony at the trial established that neither Mr. nor Mrs. Racca were residents of Texas at the time that the divorce was rendered. Based on that evidence, the natural father argued that the Texas court did not have jurisdiction to render the divorce, and that the divorce and Mrs. Racca’s subsequent marriage to plaintiff were therefore invalid. He further argued that since the marriage was invalid, plaintiff was not the spouse of the legitimate parent who had been granted custody of the child, as required by LSA-R.S. 422.1.

The trial judge agreed with that argument. Accordingly, he rendered judgment in favor of the natural father, dismissing plaintiff’s suit. Plaintiff appealed, arguing that the trial court erred in failing to ex-° tend full faith and credit to the Texas divorce decree.

In reaching the decision that he did, the trial judge apparently relied on older cases holding that Louisiana courts will not extend full faith and credit to divorce decrees rendered by other states where it is established that the court rendering the decree did not have jurisdiction > founded on domicile. See, Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Juneau v. Juneau, 227 La. 921, 80 So.2d 864 (1955); Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946). The rule of those cases has been materially modified by later jurisprudence, however.

It is now well settled that when a divorce decree cannot be attacked for lack of jurisdiction in the rendering state, it may not be collaterally attacked in any other state. In such cases, full faith and credit must be extended to the decree. U.S. Constitution, Art. 4, Sec. 1; Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951); Brown v. Brown, 387 So.2d 565 (La.1980); Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966); Glaze v. Glaze, 389 So.2d 798 (La.App. 3rd Cir. 1980). The burden of proving that a divorce decree may be collaterally attacked rests with the person seeking to deny it full faith and credit. Sandifer v. Sandifer, 389 So.2d 767 (La.App. 3rd Cir. 1980); Didier v. Didier, 230 So.2d 436 (La.App. 1st Cir. 1979), writ denied 255 La. 806, 233 So.2d 248 (1970).

In the case at hand, the party urging the invalidity of the Texas decree, the natural father, has not borne that burden. The evidence in the record does not support a finding that Texas would allow the decree to be attacked for lack of jurisdiction. On the contrary, the following language from the decree strongly suggests that such an attack would be prohibited:

“The Petitioner appeared in person and by attorney and Respondent having signed an answer, filed herein. (Emphasis added)
1.
“The Court, after examining the pleadings and listening to the evidence and argument of counsel, finds that it has jurisdiction over this cause and the parties and that Petitioner’s Original Petition for Divorce has not been on file in this Court for at least 60 days, as required by Article 3.60 of the Texas Family Code, but both parties agreed that the Court could hear and dispose of the case and enter this judgment and both parties agreed that neither of them will file a motion for New Trial, Bill of Review, or attempt to appeal from this judgment and this agreement may be relied on as an absolute bar and defense to any attempted Motion for New Trial, Bill of Review or Appeal.”

The natural father testified at the trial that he signed this decree prior to its rendition by the court. He further testified that he understood that by signing it, he was agreeing to pay child support in the sum of $150.00 per month. Thus, he entered an appearance and had an opportunity to litigate the jurisdictional question but did not do so.

Under those circumstances, we conclude that the trial court erred in failing to extend full faith and credit to the Texas divorce decree and in finding that plaintiff does not have a right of action under LSA-R.S. 9:422.1. We therefore reverse the judgment appealed by plaintiff and remand this matter to the district court for further proceedings consistent with the views expressed herein. The costs of this appeal ar,e taxed to the plaintiff. ¡

REVERSED AND REMANDED.


text:
    Daniel COMEAUX, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY et al., Defendants-Appellants.
    No. 8257.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      McHale, Bufkin & Dees, Louis D. Bufkin, Stoekwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for third party plaintiff-defendant-appellant.
    Plauche, Smith, Hebert & Nieset, Frank M. Walker? Jr., Lake Charles, for defendant-appellee.
    Rogers & St. Romain, Jack J. Rogers, Lake Charles, for plaintiff-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

On September 12, 1978, at approximately 6:30 a. m. James Patrick LaFleur was driving his 1964 Ford automobile in a westerly direction in the left lane on Interstate Highway 10 in Lake Charles, Louisiana. Daniel Comeaux was a guest passenger in the LaFleur automobile. Following LaFl-eur was a Chevrolet pickup truck owned and driven by Antoine Alton Charles. Behind the Charles truck was a 1975 Chevrolet automobile driven by James H. Howard, Jr. A misty rain was falling at the time and the traffic was heavy.

As this caravan of vehicles approached the bridge crossing the Calcasieu River the first vehicle slowed and stopped because LaFleur saw flashing red lights on the top of the bridge and the traffic ahead of him was stopping.

LaFleur and Comeaux testified that the automobile in which they were stopped was hit from behind twice. The first impact was when Charles’ pickup truck struck the stopped vehicle. The second resulted when Charles’ truck was pushed into LaFleur’s vehicle presumably after being hit by Howard’s vehicle.

Charles testified his truck was struck in the rear as he was coming to a stop and that he rearended the LaFleur vehicle only after Howard’s vehicle hit him. He maintained there was only one impact between the first and second vehicles.

Howard admitted that when he hit Charles’ truck he did not know if Charles had already been involved in a collision. Nor did he know whether the pickup struck the other car after it was hit by him.

Mr. Comeaux filed this suit for personal injuries and damages against James H. Howard and his insurer, Dairyland Insurance Company (Dairyland).

Dairyland and Howard answered, asserting that Howard was confronted with a sudden emergency and the accidents were caused' solely by the negligence of Charles in running into the rear of the LaFleur vehicle. The defendants also filed a third party demand against Charles seeking indemnity or contribution for any award made to Comeaux against them.

Charles filed a reconventional demand against Dairyland and Howard for his personal injuries and damages, asserting the sole cause of the accident was the negligence of Howard. Dairyland and Howard pled contributory negligence on the part of Charles.

Before the trial Dairyland and Howard reached a compromise settlement with Co-meaux for his claims and the suit was dismissed as to the defendants. However, all three parties reserved their rights against Charles.

Following a trial on the merits the court dismissed the third party demand of Dairy-land and Howard and also the reconventional demand of Charles. In oral reasons for judgment the trial judge, obviously believing the testimony of LaFleur and Comeaux was more credible than that of Charles, found that Charles’ truck struck LaFleur’s automobile twice. He concluded that Howard was negligent in following Charles’ truck too closely and that Charles was negligent in that he was not as attentive as he should have been. Howard’s and Dairy-land’s claim for contribution from Charles for Comeaux’s injuries was denied, because he felt they failed to prove that “the $3000.00 they paid to Mr. Comeaux was as a result of Mr. Charles bumping Mr. LaFl-eur. ..” However, on a motion for a new trial the judgment was amended to award Dairyland $1500.00 against State Farm Automobile Insurance Company (State Farm), Charles’s insurer, as contribution of one-half the amount paid to Comeaux in the settlement. The fee of Charles’ expert medical witness was fixed at $100.00.

Mr. Charles has appealed the trial court’s decision alleging two specifications of error. State Farm has taken no action in regard to Dairyland’s judgment against it, so the issues involved therein are not before this court.

Appellant’s first specification is that the trial judge erred in denying Charles his demand against Howard and Dairyland without making a finding that Charles had committed any act of negligence which proximately caused Howard to rearend his truck. His contention, as we understand it, is that they failed to prove that Charles created a sudden emergency to overcome the presumption that Howard negligently caused Charles’ injuries by colliding with the rear of his truck.

We affirm the trial judge’s factual determination that Charles’ truck struck LaFleur’s vehicle twice and not just once. There is ample testimony in the record to support this conclusion and certainly we cannot say it was clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

An examination of the jurisprudence of this state reveals several cases with strikingly similar factual circumstances. In Coates v. Marcello, 235 So.2d 162 (La.App. 4 Cir.1970), the plaintiff was the second of three drivers involved in a series of rear-end collisions. The lead vehicle stopped because of a hazard in the road and the plaintiff vehicle struck the rear of this first vehicle. A third vehicle, driven by defendant, struck plaintiff’s vehicle and caused plaintiff’s vehicle again to strike the first vehicle. The two collisions occurred within seconds. The court held the plaintiff was negligent in following the preceding vehicle too closely and that this caused him to execute a sudden and unexpected stop which directly contributed to the second collision. Such contributory negligence being causally connected to the second collision, it barred plaintiff’s recovery from the third driver.

Flowers v. St. Paul Companies, 336 So.2d 1018 (La.App. 2 Cir.1976), also concerned a three-vehicle collision. The second vehicle collided with the rear of the first vehicle and the third vehicle collided with second, sending the second back into the first. The court found the driver of the second vehicle was negligent and that her negligence was the sole cause of both collisions. It concluded that the driver of the third vehicle was free of negligence, because he was proceeding reasonably and without timely warning was confronted with a sudden emergency.

In Bush v. Aetna Casualty and Surety Company, 340 So.2d 408 (La.App. 2 Cir. 1976), the first car stopped at a red light, a second car collided with the first, and a third car collided with the second, pushing it into the first vehicle. The court found the second driver’s contributory negligence barred his recovery against the third driver. Only a “second or two” separated the first and second collisions in that case. The court stated:

“Even assuming negligence of the third vehicle, plaintiff’s contributory negligence bars his demands against the liability insurer of the third vehicle.”

Each case, of course, must be decided according to its own particular facts and circumstances. However, in similar three-vehicular rear-end accidents generally it has been held that the driver of the second car is guilty of negligence that is at least a contributing cause of being struck by the third car when the second driver has stopped suddenly and unexpectedly because of the collision with the first car that was caused by the second driver’s negligence in following too closely, not keeping a proper lookout or not having his vehicle under proper control.

Appellant in this case argues that Howard had ample opportunity to avoid colliding with the rear end of the Charles vehicle. Thus, the pivotal question is whether Howard, the driver of the third vehicle, had sufficient time to react to the collision in front of him so that the negligence of the second driver, Charles, which clearly caused the first collision, no longer constituted a cause-in-fact of the second collision.

LaFleur testified that the two impacts occurred “Pretty fast . . . Just a few seconds.” To demonstrate to the court the length of time which elapsed between the two impacts to his car, LaFleur hit the palms of his hands in rapid succession.

Comeaux testified that the pickup truck hit them and then it struck the LaFleur car again after being hit by the third vehicle. He said the amount of time which passed between the two impacts could not have been more than “thirty seconds” or “a minute at the most.” However, the trial judge asked Mr. Comeaux to tell him when he thought thirty seconds had elapsed from the moment the judge tapped his pen on his desk. When Comeaux indicated he thought thirty seconds had elapsed, the trial judge stated that only fifteen seconds had passed. Thus, it seems the trial judge did not place much significance on Mr. Comeaux’s ability to estimate time accurately.

Howard testified that he saw the pickup truck’s brake lights go on and make “a sudden stop” ahead, so he applied his own brakes. However, as the road was wet, Howard was unable to stop and slid into Charles’ pickup truck. He agreed that all of this occurred “in an instant.”

We believe, as the trial judge apparently did, that only a few seconds elapsed from the first collision between the LaFleur and Charles vehicles and the second collision between the Charles and Howard vehicles. And we agree with him that Charles’ negligence in not keeping a proper lookout, which caused him to hit the LaFleur vehicle and come to a sudden and unexpected stop, was a cause-in-fact of the second collision. Therefore, Mr. Charles is not entitled to a recovery from Howard and Dairyland because of contributory negligence, even if Howard was also negligent. We are not called upon to decide the latter.

The appellant’s second specification is that the trial judge erred in not fixing the expert witness fee for plaintiff’s orthopedic surgeon in the amount of $225.00 which is the amount the doctor charged appellant for his appearance in court.

R.S. 13:3666 provides that the fee of an expert witness is “to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.” The statute vests in the trial judge discretion in fixing such fees and his judgment in this respect will not be disturbed on appeal unless there has been an abuse of that discretion. William T. Burton Industries, Inc. v. Busby, 348 So.2d 1328 (La.App. 3 Cir.1977). Further, the agreement between an expert and the party for whom he testifies is not the sole criterion to fix the amount to be taxed as court costs for his services. State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1 Cir.1976). While there does exist a large disparity between the doctor’s charge and the fee set for him by the court, we are not prepared to say that there has been an abuse of the trial judge’s discretion in this instance.

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

AFFIRMED.


author: LABORDE, Judge.

text:
    PHYSICIANS AND SURGEONS HOSPITAL, INC., Plaintiff-Appellee, v. Simon LEONE, Jr. and Carolyn M. Leone, Defendants-Appellants.
    No. 8261.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Writ Denied July 2, 1981.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for defendants-appellants.
    Mayer, Smith & Roberts, George J. Allen, Jr., Shreveport, for defendant-appellee.
    David Paul Wilson, Shreveport, for plaintiff-appellee.

      Before CULPEPPER, DOMENGEAUX arid LABORDE, JJ.
   LABORDE, Judge.

Employee, Carolyn M. Leone, and her husband, Simon, seek recovery of damages for emotional and mental anguish from Houston General Insurance Company (Houston General), the compensation insurer of Carolyn Leone’s employer. Houston General filed exceptions of no cause of action to the demands of the Leone’s. The trial court rendered judgment, sustaining the exception as to Carolyn’s claim and overruling the exception as to Simon’s claim. Carolyn and Simon appeal the trial court’s sustaining and dismissal of Carolyn’s claim. Houston General answers the appeal and urges trial court error in overruling its exception as to Simon. On appeal, the principle issues focus upon whether an employee or her spouse may proceed in tort against an employer’s compensation insurer. We hold that the compensation remedy is exclusively for and personal to the employee, here Carolyn. Thus, Simon has no action against Houston General, the compensation insurer of his wife’s employer. We also hold that Carolyn’s remedy against Houston General falls exclusively under the Workmen’s Compensation Act or stated another way Houston General enjoys the employer’s right of immunity under the Act. Hence, Carolyn’s tort claims fail to state a cause of action against Houston General.

This lawsuit began as one on an open account filed by Physicians and Surgeons Hospital, Inc. against Carolyn and Simon Leone and in which the hospital sought payment of medical and hospital bills due for services it rendered on Carolyn’s behalf. Alleging that these unpaid bills were the result of an employment-related injury, Carolyn and Simon filed a third party petition against Houston General, the compensation insurer of Carolyn’s employer. In addition to seeking indemnity, the Leone’s also sought damages for their emotional and mental anguish they claim resulted from Houston General’s failure and refusal to pay for the medical expenses ultimately resulting in their being named as defendants in the suit on open account.

We begin with the issue of whether Simon may sue Houston General.

In Holmes v. Holmes, 270 So.2d 578 (La.App. 3rd Cir. 1972), this Court stated:

“The law is settled that the benefits provided by the Workmen’s Compensation Act are due only to the injured employee, or to certain designated dependents in case of his death from injury. The relief granted is personal to the injured employee when his injury does not result in death, and in such a case he alone has the right to enforce the payment of compensation benefits by his employer or the latter’s insurer. Brownfield v. Southern Amusement Company, 196 La. 73, 198 So. 656 (1940); Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); State v. Rapides Parish School Board, 227 La. 290, 79 So.2d 312 (1955).”

Quoting from Brownfield v. Southern Amusement Company, 196 La. 74, 198 So. 656 (1940), the court added:

“The theory upon which the workmen’s compensation legislation is founded is that compensation for injuries received in the course of employment is' due only to the injured employee and to certain designated dependents in case of his death from injury .. .
“The relief is purely statutory and is solely for the benefit of and personal to the injured employee or his dependents. Under the terms of the statute, only the employee or his dependents have the right to enforce the liability for compensation imposed by law upon the employer. If the employee be a married woman, as is the case before us, the right to compensation is personal to her. It is a property right belonging to her, for which she alone, during her lifetime, may sue to recover.”

Applying this principle to the facts of the instant case, we conclude that any duty which Houston General may owe, it owes solely to Carolyn as the injured employee within the meaning of the Act. Stated conversely, Houston General owes no duty to Simon who is the spouse of an injured employee. Hence, we hold that the trial court erred in overruling the exception of no cause of action filed by Houston General, as to the claim by Simon.

We turn now to the issue of whether an injured employee covered by the Act may proceed in tort against her employer’s compensation insurer or whether, as Houston General contends, the exclusiveness of the remedy afforded employers under the Act extends to the employer’s compensation insurer.

While this issue appears to raise a question not yet faced by our courts, we feel ample authority exists under the Act to hold a compensation insurer of the employer immune from a tort proceeding. LSA-R.S. 23:1032 establishes that “The rights and remedies herein granted to an employee ... under this Chapter, shall be exclusive of all other rights and remedies of such employee ... against his employer ...” LSA-R.S. 23:1162(D) specifically subro-gates the compensation insurer “to all rights and actions which the employer is entitled to” under the Act. We conclude that this is an expression of legislative intent that the insurer be permitted to raise the defense of immunity which the employer could raise; reasoning this is a right of the employer. Hence, we hold that the trial court was correct in sustaining the exception of no cause of action filed by Houston General and dismissing Carolyn Leone’s tort claims for emotional and mental anguish.

For the above reasons, the judgment overruling Houston General’s exception of no cause of action filed against Simon Leone’s claims is hereby reversed and set aside. It is now ordered that the exception be sustained and Simon Leone’s claims against Houston General be dismissed. In all other respects the judgment appealed from is affirmed. All costs to date are assessed against Carolyn and Simon Leone.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    Elverns CHATMAN, Plaintiff-Appellee, v. Michael KENNEDY et al., Defendants-Appellants.
    No. 8281.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Young & Burson, Mark T. Hoychick, Eunice, Clanton & Johnson, John W. Johnson, Eunice, for defendants-appellants.
    Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   LABORDE, Judge.

The issues in this property damage suit are whether plaintiff’s car should be repaired with new or used parts and whether attorney’s fees can be awarded without statutory authority. We reduce plaintiff’s award from $1,032.76 to $764.94 and as amended we affirm the decision of the trial court.

Plaintiff, Elverns Chatman, in his brief accepts the statement of facts set forth by appellants which we adopt as our own.

“On February 21, 1980, a 1974 Ford automobile, owned by Michael Kennedy and insured by Insured Lloyd’s, was driven by Albert Dupre, Jr., who was traveling south on South Cane Street in Eunice, Louisiana. When Dupre attempted a left turn onto North Street, he collided with an oncoming vehicle traveling north on South Cane Street, a 1972 Ford pickup truck, owned and operated by Elverns Chatman. Chatman sued the owner (Kennedy), the driver (Dupre) and the insurer (Insured Lloyd’s) of the 1974 Ford in Eunice City Court.
Insured Lloyd’s defended the Chatman suit on the basis of its insured’s assertion that Dupre did not have permission to drive the insured vehicle at the time of the accident. The City Court found Dupre had permission and, consequently, there was coverage. Appellant does not contest this finding on appeal.
At the trial it was stipulated that the only difference between the defendant’s appraiser’s repair estimate of $764.94 (which was dated March 5, 1980) and the plaintiff’s garage owner’s repair bill of $1.032.76 (submitted in July of 1980) was that the appraiser’s repair estimate employed available used parts while the plaintiff’s repairman used new parts for the repair of a 1972 model truck. At the request of the Court and plaintiff’s counsel (see TR. p. 65), the parties did not wait for the defendant’s appraiser (who was subpoenaed and on his way) to appear but instead stipulated to his testimony as the following dialogue occurred: ‘MR. BURSON: Your Honor, by stipulation between the plaintiff and the defendant it is agreed that if Mr. Bob Smith, the appraiser, gave the estimate which has been previously labeled and identified in testimony when it was referred to as Lloyds # 1 were to testify, that he would testify that this estimate of $764.94 was his estimate for repairing Mr. Chatman’s vehicle with the use of used parts in the case of the right fender and in the case of the hood and that these used parts could be purchased or were available for the prices indicated at the establishments that are indicated on the appraisal which are respectively Landry & Son. Langley and Son, excuse me, and the second one being St. Landry Salvage and that as indicated at the bottom of the estimate that Pitre Ford Garage here in Eunice, Mr. Vidrine there, accepted the estimate and was willing to do the work for the indicated rate per hour which is shown at the bottom right hand corner of the appraisal.’ ”

The trial court rendered the following reasons for judgment:

“After reading all cases cited, I feel the actual repairs made to the Chatman vehicle were most reasonable and should be paid. Mr. Chatman impressed me as a very prudent man — a man who cared for and took care of his possessions. I feel that he should be placed in relatively the same position after the accident as before the accident — I feel that he possibly could have collected for some type of trauma and/or loss of value of the vehicle which was not asked for or proved. The Court realizes that in awarding plaintiff the sum of $1032.76 that it does not even place plaintiff in the same or better position that (sic) before the accident. This was a clear case of liability and the insurance carrier for defendant should have tendered payment to plaintiff if a proper investigation had been conducted by the insurance adjuster. In awarding Mr. Chatman the sum of $1.032.76 the court cannot place plaintiff in the same position as before the accident because of the attorney fees involved. The Court in equity feels that an award of $1.302.76 should be granted considering all circumstances. Prepare judgment and submit for approval.” (Emphasis supplied)

Had the trial court elected to award plaintiff the higher estimate without further elaboration, the award would have been within the “much discretion” afforded the trier of fact under Civil Code Article 1934(3) and would not have been disturbed on appeal. However, in its reasons for judgment, especially the portion underscored above, it is clear that the trial court abused its discretion when it considered plaintiff’s obligation to pay attorney’s fees in arriving at its award. Our Supreme Court has recently held that express statutory authority is a prerequisite for recovery -of attorney’s fees. General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La.1980). No express statutory authority exists in this case. Therefore, the award must be reduced to $764.94 to avoid the award of prohibited attorney’s fees.

For the above and foregoing reasons the award of the trial court is reduced from $1,302.76 to $764.94 and as amended is affirmed. Costs of this appeal are assessed one-half to appellants and one-half to ap-pellee.

AMENDED AND AFFIRMED.


text:
    Ernest Keith HEBERT, Plaintiff-Appellant, v. Kevin BABINEAUX, Defendant-Appellee.
    No. 8356.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Bearden, Fitzgerald & Sandefer, Richard M. Sandefer, Lafayette, for plaintiff-appellant.
    Joseph A. Koury, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and STOKER, JJ.
   FORET, Judge.

MOTION TO DISMISS

Because an examination of this record revealed an apparent jurisdictional defect, we issued, ex proprio motu, a rule to show cause why this appeal should not be dismissed.

The plaintiff, Ernest Keith Hebert, filed this suit against Kevin Babineaux seeking to recover damages for injuries sustained as a result of an altercation between them. On November 4,1980, the trial court signed a judgment pursuant to a jury verdict in favor of the defendant. The plaintiff filed a. motion for this appeal on January 29, 1981.

Where a new trial is not timely applied for, the delay for perfecting a devolutive appeal is sixty days from the expiration of the delay for applying for a new trial. LSA-C.C.P. Art. 2087(1). The delay for applying for a new trial is seven days, exclusive of legal holidays, commencing to run on the day after judgment was signed, unless notice of judgment is required under LSA-C.C.P. Art. 1913. LSA-C.C.P. Art. 1974. Where a case is not taken under advisement and no written request for notice of judgment is filed, notice of judgment is not required. LSA-C.C.P. Art. 1913; Interstate Electric Company v. Holmes, 350 So.2d 995 (La.App. 3rd Cir. 1977).

The instant case was not taken under advisement, nor was notice of judgment requested by either party. The plaintiff did not apply for a new trial. Therefore, the sixty day delay for taking a devolutive appeal commenced to run on November 15, 1980, the day after the expiration of the delay for applying for a new trial. Thus, the last day for perfecting this appeal was January 13, 1981. Clearly, the motion for this appeal, filed on January 29, 1981, was untimely.

For the above and foregoing reasons, this appeal is dismissed at plaintiff-appellant’s costs.

APPEAL DISMISSED.

      . Veteran’s Day, November 11, 1980, a legal holiday, and two weekends fall within the delay for applying for a new trial and are not used to compute that delay.


text:
    Glenn ARMENTOR, Plaintiff-Respondent, v. GENERAL MOTORS CORPORATION, et al., Defendant-Relator.
    No. 8368.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Liskow & Lewis, Patrick W. Gray, Lafayette, La., for defendant-relator.
    Charles Brandt, Lafayette, for plaintiff-respondent.
    Herman & Herman, Fred L. Herman, New Orleans, for defendant-respondent.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

On April 8, 1981, we granted a writ of certiorari in this case on the application of General Motors Corporation (GMC) to review the correctness of a ruling of the district court overruling GMC’s exception of improper venue.

STATEMENT OF THE CASE

This action began as a redhibition suit arising out of the sale of an allegedly defective automobile manufactured by GMC. The plaintiff, Glenn Armentor, filed suit in Lafayette Parish seeking recision of the sale, damages and attorney’s fees. GMC is a foreign corporation licensed to do business in Louisiana with its principal business establishment in this state, as designated in its application to do business in this state, in Ouachita Parish. The case was removed by GMC to the United States District Court for the Western District of Louisiana on the basis of diversity of citizenship.

While the suit was pending in federal court, GMC filed an answer. Thereafter, Armentor, with leave of court, amended his petition to join as a party defendant, Benson and Gold Chevrolet, Inc. (Benson and Gold) the automobile dealership which sold the automobile to him. Benson and Gold is a Louisiana corporation with its registered office in Orleans Parish. The federal court then remanded the case to the state court because the joinder of Benson and Gold destroyed diversity. Thereafter, GMC and Benson and Gold filed exceptions of venue. Armentor then amended his petition to state a cause of action in tort, which, if successfully plead, would render venue proper in Lafayette Parish. GMC again excepted to venue, which exception was denied by the trial court holding that GMC waived its right to object to venue by filing an answer in federal court while the case was pending there.

SUPERVISORY RELIEF

The exercise of supervisory jurisdiction by appellate courts is within their plenary power. La.Const.1974, Art. 5, § 10. Appellate courts will not exercise such jurisdiction unless an error in the trial court’s ruling will cause petitioner irreparable harm or an ordinary appeal will not afford an adequate remedy. Supervisory Powers of the Louisiana Courts of Appeal, Albert Tate, Jr., 38 Tul.L.Rev. 429.

ON THE MERITS

Objections to venue are waivable defenses which must be raised through the decli-natory exception. LSA-C.C.P. Art. 925. The declinatory exception must be pleaded prior to answer or judgment by default. LSA-C.C.P. Art. 928. All objections which may be raised by the declinatory exception except the court’s lack of jurisdiction over the subject matter of the action are waived by a general appearance unless the objection is pleaded therein. LSA-C.C.P. Art. 925.

The issue presented is whether the state court erred in recognizing the answer filed by GMC in federal court and thereafter holding that GMC had waived its right to subsequently raise the declinatory exception of improper venue in state court.

Although there has been little jurisprudence generated by this precise issue, we find as authoritative the principle espoused in Bolden v. Brazile, 172 So.2d 304 (La.App. 4th Cir. 1965). In Bolden the court stated:

“Where a remand to the state court is based on want of jurisdiction on the part of the federal court, it is for the state court to determine what effect shall be given to pleadings filed in the federal court while the case was pending in the latter tribunal. Ayres v. Wiswall, 112 U.S. 187, 5 S.Ct. 90, 28 L.Ed. 693; Broadway Ins. Co. v. Chicago G. W. Ry. Co., C. C., 101 F. 507; Trinity Universal Ins. Co. v. Robinson, 227 Ark. 482, 299 S.W.2d 833; Tracy Loan & Trust Co. v. Mutual Life Ins. Co., 79 Utah 33, 7 P.2d 279; Citizens’ Light, Power & Tel. Co. v. Usnik, 26 N.M. 494, 194 P. 862; 76 C.J.S. Removal of Causes § 313.”

Applying the above principle to the facts here presented, the state court, upon remand from the federal court for want of jurisdiction in the federal court, determined that it would recognize the answer GMC filed in federal court. The state court then proceeded to give the answer filed in federal court the same effect that it would give to an answer filed in state court, i. e., the filing of the answer precluded the defendant’s right to thereafter raise the declinato-ry exception of improper venue. This treatment of the answer filed in federal court as equivalent in substance to an answer filed in state court is likewise supported by the Bolden case, supra.

Therefore, we hold the GMC’s contentions of trial court error regarding the treatment of its answer lack merit.

Also without merit are the arguments advanced by GMC complaining of various alleged trial court errors suffered by its co-defendant, Benson and Gold. Any alleged errors that may have been suffered by Benson and Gold are simply not before this court for reason that it has not chosen to apply for writs.

For the above and foregoing reasons the writ of certiorari issued herein on April 8, 1981 is hereby vacated and set aside and the judgment of the Fifteenth Judicial District Court overruling General Motors Corporation’s exception of improper venue is affirmed at defendant-relator’s costs.

WRIT VACATED AND SET ASIDE; JUDGMENT OVERRULING EXCEPTION OF IMPROPER VENUE AFFIRMED.