author: STOKER, Judge.

text:
    DOXEY MARINE SERVICE, INC., Plaintiff-Appellant, v. GULF FLEET MARINE CORPORATION and the M/V Gulf Baron, Defendants-Appellees.
    No. 82-209.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Jones, Jones & Alexander, Glenn W. Alexander, Cameron, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Hal C. Welch, New Orleans, Scofield, Bergstedt, Gerard, Hackett & Mount, J. Michael Veron, Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an action for property damages which was dismissed on peremptory exceptions based on the admiralty doctrine of laches. The plaintiff sued the defendants for damage to a pile cluster at a dock and bulk plant facility it operated on Calcasieu River in Cameron Parish, Louisiana, which occurred on September 24, 1977. Suit was initially filed on February 22, 1980, against Gulf Fleet Marine Corporation and the Motor/Vessel Gulf Baron. The plaintiff filed a supplemental and amending petition on December 18, 1980, adding the other defendants Bayou Marine, Incorporated and the M/V Gulf Whale. The petition alleged the negligence of all defendants.

Exceptions filed by Gulf Fleet Marine and Bayou Marine, Inc. raised the question of the timeliness of the filing of suit. The parties agree that this question is governed by the admiralty doctrine of laches rather than the one-year prescription applicable to tort cases under Louisiana law. The two defendant vessels, Gulf Baron and Gulf Whale went out of the case on other grounds and plaintiff has not appealed as to them. After separate hearings on the exceptions grounded on laches the trial court dismissed plaintiffs suit as to Gulf Fleet Marine Corporation and Bayou Marine, Inc. Inasmuch as we find that plaintiff carried its burden of proof of showing that these defendants have suffered no prejudice by the delay, we reverse.

FACTS

On September 24,1977, two employees of the plaintiff corporation, Mr. and Mrs. Dox-ey, arrived at work and found a pile cluster had been pushed over. Another employee of Doxey, Kevin Gauthreaux, said he saw the accident happen at about 2:00 AM that morning. Four boats were at the dock that morning, according to the log sheets of the Gulf Whale. The log sheets of the Gulf Whale also indicated that the Gulf Baron, the boat owned by Gulf Fleet Marine, “pushed over” piling cluster. Tr. 95.

On the morning of the accident a person identified by Mrs. Doxey as a “Captain” of the one of the boats came to the office of Doxey Marine at the scene and called his employer. At trial of the exception filed by Gulf Marine, Mrs. Doxey first said she could not remember which of the defendants the Captain was calling or which of the boats the Captain belonged to. Later in her testimony, however, she said that the Captain had called Gulf Mississippi Corporation. (According to the petition and the answer of Gulf Fleet Marine, it is the successor of Gulf Mississippi Marine Corporation.) Still later, Mrs. Doxey admitted that she was not sure who the Captain in question telephoned.

Mrs. Doxey testified that she did not directly contact either defendant herself because she thought they would know of the accident. Approximately four months after the accident, in January of 1978, the dock was repaired. The testimony indicates that the dock was in some state of disrepair before the accident. Mrs. Doxey testified that in order to avoid paying excessive costs she had the damage caused by the boat and the dock deterioration repaired at the same time. She testified that she made notations on the bottom of the invoices, apportioning the cost between the repair of the damage caused by the defendants and the repair of the damage caused by deterioration.

Mrs. Doxey testified that after the repairs were made she sent a copy of the repair bills to Gulf Mississippi Marine Corporation so that it could pay Doxey for the repairs. No post office return receipt or anything similar was entered into evidence.

Mrs. Doxey justified the delay in filing suit on the ground that she felt that her company would be able to collect the damages and it did not want to incur the expense of hiring a lawyer if it did not have to. Also she testified that she thought her company had more time within which to file suit. It was stipulated that Mr. Doxey’s testimony would be substantially the same as Mrs. Doxey’s testimony.

LACHES RATHER THAN STATUTORY PRESCRIPTION IS APPLICABLE TO PLAINTIFF’S ACTION

Plaintiff, Doxey Marine Service, Inc., filed its suit after the running of the one-year prescription period applicable to tort actions in Louisiana. However, the admiralty doctrine of laches based on equitable considerations is applicable rather than prescription. The parties agree that the doctrine of laches should apply. Plaintiff-appellant Doxey contends that under the doctrine its suit should be deemed timely filed. Defendants-appellees take the contrary position and so did the trial court.

PLAINTIFF-APPELLANT BEARS THE BURDEN OF PROOF

The federal courts sitting in admiralty have crystalized the rules in maritime cases applying the doctrine of laches. Whether suit is filed before or after the running of the analogous period of limitations or prescription (one year here) determines which party bears the burden of proof on the issue of how laches should apply. The plaintiff bears the burden of proof in all cases filed after the running of the analogous period and the defendant bears the burden in suits filed prior to that. See cases cited infra.

THE ELEMENTS OF PLAINTIFF’S BURDEN OF PROOF

In actions brought after the statute has run the plaintiff bears the burden of proof to show either of two elements in order to counteract a laches defense: (1) an excuse for the delay or (2) lack of prejudice to the defendant. Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209 (5th Cir.1980); Barrois v. Nelda Fay, Inc., 597 F.2d 881 (5th Cir.1979); Watz v. Zapata Off-Shore Company, 431 F.2d 100 (5th Cir.1970); Molnar v. Gulfcoast Transit Company, 371 F.2d 639 (5th Cir.1967) and Akers v. State Marine Lines, Inc., 344 F.2d 217 (5th Cir.1965). Proof of either excuse for delay or absence of prejudice will repel a claim of laches. Unexcused delay without prejudice will not bar a suit. In the Akers case the court said:

“A suit in admiralty is barred by laches only when there has been both unreasonable delay in the filing of the libel and consequent prejudice to the party against whom suit is brought. As we have repeatedly emphasized,
‘Laches is much more than time. It is time plus prejudicial harm, and the harm is not merely that one loses what he otherwise would have kept, but that delay has subjected him to a disadvantage in asserting and establishing his claimed right or defense.’
“If it can be shown that respondents have suffered no prejudice from the delay, then the unexcused delay alone is not sufficient to cause the libel to be dismissed.”

PLAINTIFF FAILED TO ESTABLISH EXCUSABLE DELAY

Plaintiff Doxey sustained damage to its facility on September 24, 1977. Doxey forwarded a bill for repair of two pile clusters to Gulf Mississippi Marine Corporation some time after the completion of the repairs about four months subsequent to the accident. Tr. 60 & 61. Although Doxey received no reply, it never sent a second bill or demand for payment. Other than Mrs. Doxey’s testimony the record itself does not establish just who Doxey sent its one bill to. Suit was not filed until February 22, 1980, and this was against Gulf Fleet Marine Corporation, successors of Gulf Mississippi Marine Corporation, and its vessel. As noted above, the excuse given on behalf of Doxey by Mrs. Doxey was the corporation’s belief that it would be able to collect the damages without paying legal fees and the assumption that the corporation had more time within which to file legal action.

In our opinion plaintiff has not established an excusable delay in the filing of suit.

DEFENDANTS HAVE NOT BEEN PREJUDICED BY THE DELAY

The underlying inquiry with regard to laches is whether it would be equitable or not, because of the delay, to enforce the claim. Molnar v. Gulf Coast Transit Company, supra. It should be borne in mind, however, that this matter has not been tried on its merits — only on its exceptions. At a trial on the merits Doxey would have to prove the identity of the offending party as well as the accident and any resulting damages. Although we do not rule on the matter, the testimony taken on the exceptions and the log entry of the Gulf Whale strongly indicate that the actual occurrence of an accident was caused by one of the four tugs at plaintiffs dock. Gulf Whale’s log sheet records information that the Gulf Baron caused the damage. The accuracy of the entry is a fact which must be proved at trial on the merits. Nevertheless, the testimony and evidence before us convinces us that neither Gulf Fleet Marine Corporation nor Bayou Marine, Incorporated, would be prejudiced by the delay in filing suit through being required to go to trial and defend the trial on the merits.

It is obvious that Bayou Marine, Incorporated, had notice of the accident as the occurrence was recorded in the log of the vessel owned by it, the Gulf Whale. We have little doubt that Gulf Fleet Marine Corporation had notice through its representatives operating the Gulf Baron. The filing of suit could hardly have come as a surprise to the defendants-appellees. In any event, they could hardly have failed to know that a claim was likely to be asserted.

The appellees contend they are prejudiced because no marine survey was made on behalf of either of them. _ They had ample time to have a survey made within the four month period that the damage remained unrepaired. The repairing of the dock deterioration at the same time as the repairing of the damage caused by the accident was not in itself such prejudice as to support appellees’ exceptions on laches. Mrs. Doxey made notations on the bottom of the repair invoices indicating which repair work was attributable to deterioration and which repair work was attributable to damage done in the incident. The invoices will go to the weight of the evidence at trial and plaintiff’s burden of proving damages to a reasonable certainty. The defendants will have ample opportunity to cross examine Mrs. Doxey, who made out the invoices, and to test the sufficiency of the evidence. Having failed to preserve their own evidence, the appellees cannot now complain about plaintiff’s right to go forward with such proof as it may have. As noted in Mecom v. Levingston Shipbuilding Company, supra, in situations such as this the question is one of credibility and not laches. Cf. Watz v. Zapata Off-Shore Company, supra.

That defense witnesses may have strayed from the employ of the defendants is not sufficient to show the type of prejudice which would support the laches exception. Akers v. State Marine Lines, Inc., 5th Cir.1965, 334 F.2d 217. As in Akers, the defendants did not allege that their employees are not now available to testify, but allege the assumption that witnesses will not now be generally available. We are not willing to make such an assumption.

CONCLUSION

It is our conclusion that, on the basis of the facts adduced on trial of the exceptions, the plaintiff-appellant has borne its burden of showing that appellees will not be prejudiced by being required to defend plaintiff’s action. Accordingly, we hold the judgment of the trial court was manifestly erroneous, and that judgment is reversed. This case is remanded to the trial court for further proceedings consistent with the views expressed herein.

The costs of this appeal are assessed equally to appellees.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    BALL MARKETING, INC., Plaintiff & Appellee, v. SOONER REFINING COMPANY, Defendant & Appellant.
    No. 82-231.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Camp, Carmouche, Palmer, Barsh & Hunter, Wade N. Kelly, Lake Charles, for defendant & appellant.
    Charles Brandt, Lafayette, for plaintiff & appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This case arises from a contract dispute between the plaintiff, Ball Marketing, Inc., and the defendant, Sooner Refining Company. The trial court rendered judgment in favor of the plaintiff and against the defendant in the amount of $210,796.06 as reimbursement for overpayment under the contract, and $3,974,994.00 in damages under the penalty clause in the contract. Defendant appeals, urging the following errors: (1) The trial court erred in its interpretation of the contract; (2) The trial court erred in failing to conclude that the pricing language of the contract is so indefinite and uncertain as to invalidate the contract; (3) The trial court erred in awarding penal damages where the pricing language of the contract was subject to different interpretations; (4) The trial court erred in awarding penal damages without inquiring as to their reasonable relationship to the damages actually incurred.

FACTS

On April 8, 1980, Ball Marketing, Inc. (hereinafter Ball), and Sooner Refining Company, Inc. (hereinafter Sooner), entered into the contract which subsequently became the subject of this litigation. Included in the various obligations assumed by the parties was a clause whereby Ball agreed to purchase from Sooner 50,000 gallons of diesel fuel per week, and Sooner agreed to provide said diesel fuel to Ball. The price of the diesel fuel was to be figured on a weekly basis according to various specified listings published in a trade journal known as PLATT’S OILGRAM PRICE REPORT (hereinafter Platt’s). The paragraph in question reads as follows:

“(2) Sooner Refining Company, Inc. does hereby contract and covenant with Ball Marketing, Inc. to supply and furnish unto Ball Marketing, Inc. for a term of five (5) years from the execution of this agreement fifty thousand (50,000) gallons of diesel fuel per day. The weekly price of this diesel shall be determined and set by the previous Friday’s Platt’s Oilgram Price Report (“Platts”). The prices shall be determined by taking “Platts” U.S. Gulf Coast Spot Waterborne diesel low or “Platts” South and East Terminatls Houston District No. 2 fuel low, whichever is lower, and subtracting two cents (2<¡¡) per gallon therefrom. The diesel is to be a good quality commercial grade with an initial boiling point not to be higher than 400 degrees Fahrenheit and end point not to exceed 690 degrees Fahrenheit with a cetane to be between 48 and 52.”

The contract further contains the following penal clause:

“All parties to this contract further covenant and agree as follows: (1) The failure of Ball Marketing, Inc. to accept, and/or Sooner Refining Company, Inc. to deliver the 50,000 gallons of diesel per day as per the specifications hereinabove, will subject the party in default to a stipulated penalty of 6$ per gallon for each gallon the party fails to accept or deliver, subject to the force majeure clause contained herein;”

Although not at issue in the present case, Ball also agreed to sell to Sooner all crude oil which Ball purchased or controlled during the five-year term of the contract. This provision is mentioned only in explanation of Sooner’s later action in withholding from amounts it owed Ball for crude, the additional amounts Sooner contended Ball owed to Sooner for diesel.

The contract was signed by Charlie Goss, as representative for Ball, and by Robert Sutton, president and representative of Sooner.

In August of 1980, some three months after the operations had begun pursuant to the contract, a pricing dispute arose between the parties. The prices were to be determined according to Platt’s price listing for “US Gulf Coast Spot Waterborne diesel low or Platt’s South and East Terminals Houston District # 2 fuel low, whichever is lower.” The dispute arose because while the latter figure was easily determinable, under the former category there was no specific “diesel low” listing in Platt’s. There were at the time of the confection of the contract, two listings in Platt’s which encompassed diesel fuel. One was entitled “45 Cetane diesel” and the other was “# 2 oil.”

At the beginning of the contract, Sooner was computing the price according to the lower of South and East Terminals # 2 fuel or Gulf Coast Waterborne # 2 oil. On August 6,1980, Ball was informed by letter from Sooner’s Crowley plant manager, Landry Keller, that Sooner would begin using the 45 Cetane diesel prices as a base for pricing Ball’s diesel, rather than the # 2 oil used previously, pursuant to instructions from the Houston office. The change was protested by Mr. Goss, but to no avail.

Then in January, 1981, Platt’s discontinued listing 45 Cetane diesel as a separate category for US Gulf Coast Waterborne fuels. On April 16, 1981, Sooner notified Ball that, since 45 Cetane was no longer listed, all future pricing would be done strictly according to Platt’s South and East Terminals Houston District # 2 fuel. Sooner also withheld from monies due Ball for the purchase of crude oil by Sooner from Ball the amount Sooner considered Ball had underpaid on the previous week’s delivery of diesel due to computation of the price according to the # 2 oil listing. Ball protested these actions by Sooner and demanded full payment for the crude oil it was selling to Sooner.

Sooner failed to meet Ball’s demand, and Ball filed suit for declaratory judgment and specific performance on May 6, 1981, which was met with a reconventional demand by Sooner. Ball later amended its petition to request damages for breach of contract.

On July 21, 1981, Sooner notified Ball that it would no longer purchase crude oil under the contract, inasmuch as it considered that the contract merely gave Sooner an option on Ball’s crude. Sooner also stopped delivering diesel to Ball as per the contract the last week of August of 1981.

After the taking of evidence, the trial court concluded that the provision concerning determination of the price of the diesel was ambiguous. It further held that the preponderance of the .evidence showed that the parties to the contract intended that the pricing category to be used was that of # 2 oil under the sub-heading of US Gulf Coast Waterborne. The court also found that Sooner breached the contract, and that the provisions of the penalty clause agreed upon by the parties were applicable. It therefore awarded 6<p per gallon for each gallon of diesel that Sooner failed to deliver to Ball for the remaining portion of the five-year term of the contract.

The trial judge therefore rendered an award in favor of Ball and against Sooner in the amount of $210,796.05 in actual damages for overcharges for the diesel fuel, and in the amount of $3,974,994.00 in penal damages.

Sooner appeals devolutively from this judgment.

INTERPRETATION OF THE CONTRACT

The appellant maintains the trial court’s decision that the parties intended the term “Platt’s US Gulf Coast Spot Waternorne diesel low” to refer to Platt’s # 2 oil was erroneous. Sooner argues the parties intended to use Platt’s 45 Cetane diesel price, since they used the term “diesel.” We affirm the trial court’s holding.

LSA-C.C. article 1950 provides:

“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”

The Civil Code also provides in articles 1946 and 1947 two general rules of construction of contracts:

“Art. 1946 The words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.” “Art. 1947 Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong.”

The evidence shows that the trial court’s conclusion on this issue was correct. Charles Goss, who signed the contract for Ball Marketing, testified that he intended the price to be computed on the basis of # 2 oil, and that he and Robert Sutton, who negotiated the contract for Sooner, used the terms “diesel” and “ # 2 oil” interchangeably. For the first three months of the contract, the price was computed according to the price of Waterborne # 2 oil. It was only after Larry Sutton of Sooner began supervising the invoicing by the Crowley office that pricing was computed according to 45 Cetane diesel. The term Cetane with regard to diesel is comparable to the octane rating of gasoline and basically indicates the quality of the diesel. The contract specified that the diesel was to be within the range of 48 to 52 Cetane, and Larry Sutton testified that he felt the 45 Cetane price should be used because it was closest to that specified by the contract.

Mr. Goss testified that the specification of a 48 to 52 Cetane rating was simply to insure that he would continue to be supplied with the same quality diesel he had been receiving from Sooner in the past. It had nothing to do with the price and method specified in the contract.

Two experts testified that the # 2 oil category also included diesel with any Ce-tane rating, although it normally included diesel fuels with lower Cetane ratings. They stated that all diesel is classified as a # 2 fuel but not all # 2 fuels are diesel fuel because of variations in flash point and boiling point. A fuel may only be classified as diesel if it has the proper boiling point and flash point. They also testified that the two terms are used interchangeably.

Larry Sutton testified for Sooner, but stated that he had nothing to do with the confection of the contract. Mr. Robert Sutton, who negotiated the contract for Sooner, did not testify at the trial.

We find, as did the trial court, that the evidence preponderates in favor of the conclusion that the intention of the parties was that the US Gulf Coast Spot Waterborne # 2 oil listing would be used in computation of the price of the diesel. We therefore conclude that Ball was entitled to receive from Sooner the amount it paid in overcharges as a result of Sooner’s erroneous computation.

The appellant further argues in the alternative that the price language in the contract is so uncertain as to invalidate the contract. However, we feel that the evidence shows the intent of the parties was sufficiently definite with respect to the manner in which the price was to be computed. Therefore, the three requisites for a valid sale, i.e., price, object and consent, are met. See LSA-C.C. article 2439.

PENAL DAMAGES

The appellant argues that the trial court erred in awarding penal damages where the contract was susceptible of two different interpretations, and without inquiring into the reasonable relationship to the damages actually incurred.

The Louisiana Civil Code defines a penal clause as compensation for the damages which the creditor sustains by the non-execution of the principal obligation. See LSA-C.C. article 2125. The purpose of a penal obligation is stated in LSA-C.C. article 2117:

“Art. 2117 A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation.”

The contract provides for a 6$ per gallon penalty should one of the parties fail to accept or deliver the diesel as required by the contract.

It is well settled that, under Louisiana law, a penal clause is synonymous with liquidated damages, and may be stipulated either for the non-execution of a contract or for mere delay in performance. Pennington v. Drews, 218 La. 258, 49 So.2d 5 (La.1949). It is further settled that where the parties have the capacity to, and do in fact, stipulate for liquidated damages, courts will not inquire whether the actual damages equaled or exceeded the agreed amount. Lama v. Manale, 218 La. 511, 50 So.2d 15 (1950); Hemenway Company, Inc. v. Bartex, Inc. oí Texas, 373 So.2d 1356 (La.App. 1st Cir.1979). As the Supreme Court stated in Lama v. Manale, supra, there is no law prohibiting such a penalty provision in a contract. The appellant has pleaded no error or mistake which would militate against enforcement of the agreement into which the parties freely entered.

We recognize that LSA-C.C. article 2127 provides the penalty may be modified by the trial judge when the principal obligation has been partially executed, except in the case of contrary agreement. Also, in certain cases Louisiana courts have examined penal damages with regard to the reasonableness of their relationship to the actual damages suffered by the plaintiff. In some cases, such awards have been reduced where they were disproportionate to the actual damages suffered. However, these were cases in which unrealistic and unreasonable damages were imposed by a party with vastly superior bargaining power in an effort to prevent breach of contract. See John Jay Esthetic Salon, Inc. v. Woods, 377 So.2d 1363 (La.App. 4th Cir.1979); McCray v. Cole, 236 So.2d 863 (La.App. 3rd Cir. 1970), reversed on other grounds 259 La. 646, 251 So.2d 161 (1971); Gauthier v. Magee, 141 So.2d 837 (La.App. 4th Cir.1962).

However, in the instant case, we find no such inequalities in the bargaining power of these parties. This was an arms-length agreement in which the parties were free to stipulate at will what appears to us to be a realistic preestimate of probable damages which would be suffered in the event of a breach of the contract by either party. We therefore sustain the trial court’s award of 6$ per gallon of diesel which Sooner failed to deliver to Ball from August 21, 1981, when Sooner ceased delivery, to April 8, 1985, the termination date of the contract.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Louise Duckless FONTENOT, Plaintiff-Appellee, v. Joseph Clarence THIERRY, Defendant-Appellant.
    No. 82-238.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      J. Harold Fontenot, Opelousas, for defendant-appellant.
    Brinkhaus, Dauzat & Falgoust, Jimmy L. Dauzat, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a suit for paternity and child support brought by the plaintiff, Louise Duckless Fontenot, against the defendant, Joseph Clarence Thierry. Plaintiff seeks to prove that the defendant is the biological father of her son, John F. Duckless, and therefore that he should be required to pay $200.00 per month for child support. The defendant conversely alleges that he is not the father of the boy, averring that plaintiff’s ex-husband, St. Louis Dunbar, is the presumptive parent of the youth.

The trial court rendered judgment declaring Joseph Clarence Thierry to be the biological father of John F. Duckless and thereby ordered him to pay the plaintiff $200.00 per month in child support. The defendant suspensively appealed from this adverse judgment. We affirm.

The plaintiff asserted in her petition that from 1967 through December, 1970, she and the defendant engaged in sexual relations on numerous occasions, and that as a consequence thereof, she became pregnant and thereafter gave birth to a son, John F. Duckless, on September 4, 1971. Plaintiff averred that she had sex with no one other than the defendant during this period of time.

The defendant, on the other hand, specifically denied being the father of John F. Duckless, claiming that he never engaged in sex with the plaintiff after October, 1970, when he entered the Armed Forces. He did admit visiting plaintiff in December, 1970, at Plaisance High School, but stated that he did not recall having sex with her during said meeting.

Thierry also sought to deny paternity of the child by seeking to show that St. Louis Dunbar was the presumptive father of the boy. The plaintiff admitted the veracity of several facts submitted by the defendant in the form of a request for admissions, which included:

(1) That she married St. Louis Dunbar on February 11, 1971.

(2) That at the time of the birth of the child, she was married to Dunbar and had been married to him for approximately seven months prior to such birth.

(3) That Dunbar knew that she was pregnant at the time of the marriage.

(4) That Dunbar never filed a suit for disavowal of paternity of John F. Duckless, although no impediments prevented him from so doing.

(5) That the child had always lived with her and Dunbar until their divorce on November 12, 1974.

The defendant thereby concluded that St. Louis Dunbar was the presumptive father of John Duckless, by application of Louisiana Civil Code Article 184, which establishes that:

"... The husband of the mother is presumed to be the father of all children born or conceived during the marriage.”

The issues presented in this appeal are:

(1) Whether or not the plaintiff had a right to institute a filiation proceeding on behalf of her child against the defendant; and

(2) Whether or not the plaintiff was entitled to receive child support payments from the defendant upon showing that he was the biological father of her child.

Although with reluctance, we feel constrained to answer both of these questions in the affirmative.

In 1980, the Legislature passed Act 549, amending Article 209 of the Louisiana Civil Code to read as follows:

“Art. 209. Methods of proving filiation. 1. An illegitimate child may be entitled to a rebuttable presumption of filiation under the provisions of this Article. Or any child may establish filiation, regardless of the circumstances of conception, by a civil proceeding instituted by the child or on his behalf in the parish of his birth, or other proper venue as provided by law, within the time limitation prescribed in this Article.
2. A child who is shown to be the child of a woman on an original certificate of birth is presumed to be the child of that woman, though the contrary may be shown by a preponderance of the evidence.
3. An illegitimate child not shown as the child of a woman on an original certificate of birth may prove filiation by any means which establish, by a preponderance of the evidence, including acknowledgment in a testament, that he is the illegitimate child of that woman.
4. A child of a man may prove filiation by any means which establish, by a preponderance of the evidence, including acknowledgment in a testament, that he is the child of that man. Evidence that the mother and alleged father were known as living in a state of concubinage and resided as such at the time when the child was conceived creates a rebuttable presumption of filiation between the child and the alleged father.
5. Proof of filiation must be made by evidence of events, conduct, or other information which occurred during the lifetime of the alleged parent. A civil proceeding to establish filiation must be brought within six months after the death of the alleged parent, or within nineteen years of the illegitimate child’s birth, whichever occurs first. If an illegitimate child is born posthumously, a civil proceeding to establish filiation must be instituted within six months of its birth, unless there is a presumption of filiation as set forth in Section 2 above. If no proceeding is timely instituted, the claim of an illegitimate child or on its behalf to rights in the succession of the alleged parent shall be forever barred. The time limitation provided in this Article shall run against all persons, including minors and interdicts.”

Article 209 was amended once again by Act 720 of 1981. This Act was approved by the Governor on July 23, 1981, and was published in the Official Journal of the State on August 11,1981. By virtue of this amendment, Article 209 currently states:

“A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
B. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
C. The right to bring this proceeding is heritable.”

Professor Katherine Spaht of the Louisiana State University Law Center very ably contrasted the differences between Act 549 of 1980 and Act 720 of 1981 in 42 La.Law Review 403. In that Article, she commented:

“Furthermore, the language of article 208 is more precise than its predecessor in establishing which illegitimate children must institute the proceeding to establish filiation. Act 549 of 1980 [Article 209] specified that illegitimate children who had not been formally acknowledged re gardless of the circumstances of conception were required to institute a proceeding to establish filiation. Article 208, as amended by Act 720 of 1981, specifies that a child who enjoys legitimate filiation by application of the presumption of article 184, or a child who has been legitimated or' formally acknowledged by the parent need not institute the proceeding. In all of the foregoing instances, sufficient proof of the parent-child link is available. Furthermore, article 209, as amended by Act 720, implies that the child who enjoys legitimate filiation, or is legitimated or formally acknowledged, cannot institute the proceeding to establish filiation. Such an interpretation is perfectly consistent with the organization of the Civil Code articles regarding proof of the parent-child relationship, but inconsistent with the implications of some of the jurisprudence. A further indication that such an interpretation is correct is the amendment to the Child Support Enforcement Program. The provisions which authorize the Department of Health and Human Resources to institute filiation proceedings suggest that article 209 prohibits a child from instituting the civil proceeding to establish filiation if he enjoys legitimate status: ‘The department ... may ... take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section.’ Reading the two statutory changes made in Act 720, the discernible legislative intent is that a child presumed to be that of the husband of the mother may not institute a proceeding to establish filiation to another man.” (Footnotes omitted). (Brackets added).

We agree with the inferences of legislative intent developed by Professor Spaht in her article. The Legislature seems to have finally taken a positive step toward eliminating the multiple paternity abuse that has existed in our jurisprudence for a number of years. The line of cases allowing dual paternity to be proven in situations in which the child seeking to demonstrate fili-ation is already the presumed legitimate child of another man should now be seriously reconsidered in light of this new legislation.

However, in the case at hand, the plaintiff filed suit on April 10, 1981, nearly four months prior to the enactment of the 1981 amendment to Article 209. Because of this, we feel compelled to adhere to the dictates of Louisiana Civil Code Article 8, which provides:

“A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”

This Court commented on the application of Article 8 in Ewing v. State Farm Mutual Automobile Insurance Company, 402 So.2d 779 (La.App. 3rd Cir.1981), stating:

“... This general rule of prospective application applies only to substantive laws. Procedural or remedial laws will be given retroactive effect unless a contrary intention is shown by the Legislature or such retroactivity would operate to divest vested rights.”

Due to the substantive nature of Article 209 as amended in 1981, we feel bound to give it prospective rather than retrospective application. This compels us to apply Article 209 as amended by Act 549 of 1980 to the case at hand. Therefore, we must hold that in this particular situation, the plaintiff had a right to bring the action to prove filiation.

Appellate courts will not overturn the factual findings of trial courts unless the record establishes that such determinations are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1380 (La.1978); Kirklin v. Winn-Dixie Louisiana, Inc., 391 So.2d 87 (La.App. 4th Cir.1980). Based upon the “preponderance of the evidence” standard described in paragraph 4 of Article 209 of the Civil Code as amended in 1980, we are unable to conclude that the trial judge in this case was clearly wrong in his evaluations of the evidence presented.

Several facts seem to have led to the trial judge’s conclusion that Thierry was the biological father of Duckless. The defendant admitted under oath that he often allowed the child to spend time with him at his home, sometimes for periods of four to five days, that he often took the child on fishing trips, and that he frequently bought the child gifts, including clothes, candies, a BB gun, and a bicycle. He also admitted allowing the child to call him daddy, even in the presence of others. Furthermore, when asked under oath whether or not he had engaged in sex with the plaintiff during his visit with her in December, 1970, the defendant could only respond that he did not “recall” having sex with her at this time. The trial judge apparently felt that the plaintiff proved the defendant’s paternity by a preponderance of the evidence, and we are reluctantly unwilling to challenge his conclusions as being manifestly erroneous.

The plaintiff cites the cases of State in Interest of Poche v. Poche, 368 So.2d 175 (La.App. 4th Cir.1979), writ denied 370 So.2d 577 (La.1979), and Warren v. Richard, 296 So.2d 813 (La.1974) as authority for the proposition that a child may recover child support from its biological father even though it is the presumed legitimate offspring of another man. Plaintiff argues that based on these cases she is entitled to recover from the defendant regardless of whether or not St. Louis Dunbar is presumed to be the father of her son.

It is with serious reservation that we feel compelled to follow the jurisprudence cited by the plaintiff. Professor Spaht and William Marshall Shaw, Jr., in their article “The Strongest Presumption Challenged: Speculations on Warren v. Richard and Succession of Mitchell ”, 37 La.Law Review 59 (1976), questioned the Louisiana Supreme Court’s holding in Warren, stating:

“ Warren raises problems in application. It destroys the conclusiveness of Article 184 in all cases arising under Levy [v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436] and progeny, yet provides no substitute standards by which paternity may be proven. It is not even clear that it is restricted to those cases in which it can be shown that the husband could not possibly be the father. If anyone who believes that he has a biological relationship to a decedent has a constitutional right to make out the true facts of paternity, by any evidence and regardless of a contrary presumption, then every wrongful death action bears the seeds of a suit to fix paternity. Moreover, the father-child relationship so fixed will apparently bear the consequences normally associated therewith only for those limited purposes defined by the United States Supreme Court. The result is part-time paternity.” (Footnotes omitted).

Unfortunately, Warren seems to have opened the door to an array of paternity suits allowing the mothers of otherwise legitimate children to bring filiation proceedings against alleged biological fathers at their own whim and fancy. But it seems that the Legislature has finally seen fit to change such a situation as this by amending Louisiana Civil Code Article 209 to its present form. Perhaps the Supreme Court should re-evaluate Warren in light of this new legislation, in order to determine its continuing viability. But until this occurs, we must adhere to its decision in Warren. Therefore, we regretfully conclude that the plaintiff is entitled to receive child support payments from the defendant in the case at bar.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs at trial and on appeal are assessed against the defendant, Joseph Clarence Thi-erry.

AFFIRMED.

      . Another of our Courts of Appeal, in a decision rendered on August 17, 1982, entitled IMC Exploration Company and The Petroleum Corporation of Delaware v. Foster Henderson, et al., 419 So.2d 490 (La.App. 2nd Cir.1982) seems te indicate that it might agree with the inference of legislative intent drawn by Professor Spaht and this Court in future cases decided under Act 720 of 1981.

      . The “preponderance of the evidence” standard described in Article 209 should be distinguished from that delineated in Article 187 of the Civil Code. In Ogea v. Ogea, 378 So.2d 984 (La.App. 3rd Cir.1979), writ denied 379 So.2d 1104 (La.1980), this author interpreted the meaning of the phrase “preponderance of the evidence” as written in Article 187, stating:
      “This indicates to us that the intent of the Legislature is such that a mere preponderance of the evidence by the husband would not be sufficient to disavow a child, but that his preponderance must be in connection with the type of facts illustrated in the Official Revision Comments or type of facts of the same general nature or calibre.”


text:
    STANNARD BROADCASTING COMPANY, INC., Plaintiff & Appellant, v. VERNON PARISH SCHOOL BOARD, et al., Defendants & Appellees.
    No. 82-239.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Daryl Gold, Leesville, for plaintiff & appellant.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for intervenor & appellee.
    William E. Tilley, Leesville, for defendants & appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

The plaintiff, Stannard Broadcasting Company, Inc., is the owner and operator of radio station KVVP, located in Leesville, Louisiana. It filed this suit against the Vernon Parish School Board and radio station KLLA in Leesville to annul the action of the school board in naming KLLA the official broadcaster for Leesville High School football games during the 1981-1982 season, and further to enjoin station KLLA from using the room on the north end of the press box at the school stadium. From a judgment dismissing its suit, plaintiff appeals.

On appeal, plaintiff states there are three issues: (1) Does a school board have the authority to name an “official broadcaster for high school football games?” (2) If they do have this authority, should the Vernon Parish School Board have been estopped from taking such action which would go into effect for the 1981-1982 school year? (3) Did the actions of the school board in instructing the superintendent to notify the principal with regard to the use of the official press room violate the Louisiana Open Meetings Law?

The general facts are that plaintiffs radio station had been broadcasting the Lees-ville High School football games since about 1977 and had been using the booth on the north end of the press box. In June of 1981, plaintiff followed its previous procedure of obtaining written permission from the principal of the Leesville High School to broadcast for the 1981-1982 season. However, at a regular meeting held on August 6, 1981, the Vernon Parish School Board passed a motion naming station KLLA as the official broadcaster for Leesville High School football games, but without denying the right of other stations to broadcast, and providing further that the official broadcaster would be named on a yearly basis. No mention was made in the motion that station KLLA would have the right to use the booth on the north end of the press box, but after the meeting adjourned the superintendent of schools asked the school board members whether the “official broadcaster” would have the right to use that booth, and the school board members said “yes.” This action after the meeting is the basis of plaintiff’s contention that the designation of the use of the booth in the press box violated the Louisiana Open Meetings Law, LSA-R.S. 42:4.1 through 42:8.

Following the meeting, the superintendent of schools wrote a letter to the high school principal advising that the school board had named station KLLA as the official broadcaster for the 1981-82 season, and that KLLA was entitled to use the broadcast booth on the north end of the press box, which had previously been used by the plaintiff, and that other radio stations could use other booths.

In its brief filed in this court, plaintiff concedes this appeal may now be moot, since the 1981-82 football season has been completed. However, plaintiff requests that we decide the issues raised above.

An established rule in Louisiana jurisprudence is that courts will not rule upon questions which have become moot. A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405 (La.1980). In the present case the plaintiff seeks to annul the action of the school board in naming radio KLLA as the official broadcaster and allowing it to use a designated press booth at the football stadium for the 1981-1982 football season. As plaintiff admits in its brief, the 1981-82 season is now complete. No judgment which we could render could give the plaintiff the relief which it seeks. Accordingly, this case is now moot.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Harold Lee GUILLORY, Plaintiff-Appellee, v. CAMERON OFFSHORE SERVICES, INC., Defendant-Appellant.
    No. 82-240.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Simon, Peragine, Smith & Redfearn, Daniel J. Caruso, New Orleans, for defendant-appellant.
    Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellee.
    Woodley, Barnett, Cox, Williams & Fen-et, Earl G. Pitre, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

The plaintiff, Harold Lee Guillory, filed this tort action seeking damages for injuries he suffered on September 17, 1980, when he slipped and fell on a bulkhead owned by the defendant Cameron Offshore Services, Inc. The defendant answ.ered the plaintiffs petition and filed a third party action against Cameron Crew Boats, Inc., plaintiffs employer, claiming indemnity or contribution for any amounts that it might be forced to pay in damages to Guillory. Cameron Crew Boats subsequently reconvened against both Cameron Offshore Services and Harold Guillory praying for a credit or lien of $4,958.29 against any judgment obtained by the plaintiff, in order to compensate for certain medical expenses and maintenance payments which it had previously made to Guillory.

The trial court found Cameron Offshore Services liable to Harold Guillory for damages in the amount of $22,802.16 with interest, and to Cameron Crew Boats in the sum of $1,310.00 plus legal interest. The Court taxed all costs, including $100.00 in expert fees, against Cameron Offshore Services, and denied all other demands and claims in the action. •

Cameron Offshore Services suspensively appealed from the judgments of the trial court. Guillory filed an answer to the appeal, seeking an increase in the amount awarded to him, on June 16, 1982. Cameron Crew Boats also answered the appeal on June 18,1982, asking for an increase in the damages awarded to it. The defendant thereafter filed a motion to dismiss the answers to the appeal, on the basis that they were filed too late to be considered on appeal.

ON DEFENDANT’S MOTION TO DISMISS

La.C.C.P. Article 2133 provides that an answer to an appeal stating the relief demanded must be filed “.. . not later than fifteen days after the return day or the lodging of the record whichever is later ...” Here, the appeal was lodged on May 6, 1982, and the return date was May 10, 1982. Thus, the answers of Guillory and Cameron Crew Boats were required no later than May 25, 1982. However, neither answer was filed until some three weeks thereafter. Therefore, the answers were filed too late and thus cannot be considered by this Court. See Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1st Cir.1981); Mitchell Brothers v. Dinvaut, 374 So.2d 199 (La.App. 4th Cir.1979), writ denied 376 So.2d 1271 (La.1979).

ON THE MERITS

At the time of the accident, plaintiff was employed as boat captain with Cameron Crew Boats, for whom he had worked for nearly nine years. On September 17, 1980, plaintiff was specifically assigned to the M/V CAPTAIN CHARLES in order to offload equipment for Union Oil Company, who had chartered the boat that day.

Cameron Offshore Services operates a facility on the bank of the Calcasieu Ship Channel in Cameron Parish, Louisiana. They supply fuel and equipment to companies with offshore drilling operations. They also load and unload supplies onto and off of boats such as the M/V CAPTAIN CHARLES, which service such offshore platforms.

On the day of the accident, the plaintiff had arrived at the Cameron facility in order to offload an old tubing hanger and pick up a new one. The record indicates that it had been drizzling that day, and that there was some water on the bulkhead cap at the facility. It became necessary for the plaintiff to disembark from the boat onto the Cameron Offshore Services premises in order to find someone who could help unload the equipment. The plaintiff testified that there was nothing aboard the boat which could be used as a gangplank to help him exit directly from the ship onto the land, so he was forced to step first on the bulkhead and then to the ground. As the plaintiff stepped off the boat and onto the bulkhead cap, he slipped and fell, striking his left leg on the edge of the cap. He was subsequently treated for injuries to his leg, including a fractured tibia.

Plaintiff alleged in his petition that his injury was proximately caused by the fault and negligence of the defendant, Cameron Offshore Services. He based this on the assertion that the defendant negligently allowed diesel fuel to remain on the bulkhead, creating an unusually slippery and hazardous condition which allegedly caused him to fall and injure himself. Defendant, on the other hand, sought to avoid liability by arguing that there was no proof of the existence of any diesel fuel on the bulkhead cap at the spot where the plaintiff slipped. Defendant further alleged that plaintiffs injury was due either to his own fault for failing to maintain a proper lookout for his own safety, or, conversely, to the negligence of Cameron Crew Boats for failure to provide the plaintiff a safe manner of ingress and egress from the vessel.

During the course of the trial, the plaintiff testified that just after he slipped on the bulkhead, he noticed that the surface of the cap was slick. He then stated that he smelled the palms of his hands and detected the odor of diesel fuel on them. Furthermore, he testified that the spot where he slipped was located five to six feet away from a diesel fueling station. However, he also said that he couldn’t tell whether or not there was diesel on the cap prior to stepping on it, since he never saw any signs of the substance on the bulkhead.

The defendant sought to countermand the plaintiff’s allegations by showing that there couldn’t have been any diesel fuel on the bulkhead. The rationale behind this contention was that had there been any fuel on the cap, it would have formed a dark, noticeable stain on the surface of the bulkhead, which had been previously covered with a coal tar epoxy paint.

Cameron Offshore Services sought to demonstrate the implausibility of the plaintiff’s argument by introducing the testimony of Mr. Gary Kelly, Terminal Manager for the company. He testified that he inspected the area where Guillory fell some thirty minutes after the accident and was unable to find any stains or other traces of diesel fuel on the bulkhead. He also stated that the fuelhands were under orders to immediately clean up any fuel that was spilled on the premises. The procedure for removing diesel fuel was to use sandblasting sand or some other type of absorbant to soak up the matter. The defendant thereby inferred that the plaintiff’s slip was solely attributable to the rain water that was present on the bulkhead that day, and not to the presence of any foreign substance on the cap.

The trial judge resolved the apparent contradiction between the testimony of Guillory and that of Gary Kelly by concluding that there was actually no inconsistency whatsoever. He stated that there was no reason to doubt the credibility of Harold Guillory and Gary Kelly’s testimony. Therefore he determined that someone must have gone to the trouble of removing the fuel during the short period between the moment of accident and the time that Kelly returned to inspect the cap. He thereby found Cameron Offshore Services liable for allowing a foreign object to remain on the bulkhead cap, creating an unreasonable and foreseeable risk to persons disembarking from vessels at the facility.

The defendant submits on appeal that the trial judge’s conclusion was manifestly erroneous in that it was clearly unsupported by the evidence. He argues that the court exceeded the scope of the evidence presented in the case in order to draw a factual conclusion that was never propounded by either the plaintiff or the defendant and which was in no way supported by the record.

We are unable to agree with the defendant. In the recent case of Hickman v. Miller, 405 So.2d 612 (La.App. 3rd Cir.1981), this Court concluded that it would “... not disturb reasonable evaluations of credibility and inferences of fact simply because another result might be just as reasonable.” Only where the record establishes that the finding of the trial court is clearly wrong can such decisions be disturbed by the appellate courts. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Kirklin v. Winn-Dixie Louisiana, Inc., 391 So.2d 87 (La.App. 4th Cir.1980).

While the theory propounded by the defendant may be entitled to some merit, we do not feel that it is the only plausible explanation for the plaintiff’s accident. Our careful review of the facts of this case leads us to conclude that the trial judge was not clearly wrong in his factual determinations. Therefore, we affirm the judgment holding Cameron Offshore Services liable to Harold Guillory.

Defendant further argues that the trial court erred in failing to rule on its third party petition against Cameron Crew Boats. It claims that if the holding of the trial court with regard to its own liability is affirmed, that judgment should also be rendered against Cameron Crew Boats for contribution as a joint tortfeasor. Defendant bases this on the theory that a shipowner has the duty to provide a safe manner of ingress and egress to and from a vessel to persons working on it, citing Toddy v. Arkansas Valley Dredging Company, 470 F.Supp. 692 (E.D.Ark.1979) as authority. Defendant alleges that the failure of Cameron Crew Boats to provide a gangplank or board on which Guillory could have safely exited from the ship constituted a breach of this duty.

Initially, we deem it necessary to point out that contrary to the defendant’s position, the trial court did indeed rule on the third party claim that Cameron Offshore made against Cameron Crew Boats by summarily denying it in the judgment. But furthermore, while we agree that a shipowner has a duty to provide a safe manner of ingress and egress from his vessels, we do not feel that Cameron Crew Boats breached such duty in this case. The absence of a gangplank or board on the boat did not prevent Guillory from making what would have otherwise constituted a reasonably safe exit. Guillory clearly testified that the M/V CAPTAIN CHARLES was perfectly flush with the bulkhead at the time that he stepped off of the boat, such that it was unnecessary for him to step up or step down from the boat to the cap. Furthermore, plaintiff demonstrated that the space between the vessel and the bulkhead was only a foot and a half to two feet in length. While such space might not have been covered by Guillory in a normal footstep, we do not feel that it was unsafe for him to stretch a few inches further to bridge the distance. Thus we cannot fault the trial court for dismissing defendant’s third party claim against Cameron Crew Boats.

The defendant finally argues that the trial court erred in ignoring evidence regarding the contributory negligence and assumption of a known risk by Harold Guillo-ry. It claims that had the plaintiff used the handles present on the bulkhead bit to steady himself and taken other necessary precautions as he egressed from the vessel, he could have avoided slipping on the bulkhead and injuring himself. It also claims that the presence of rain water on the cap should have alerted him to the necessity of taking safety measures in disembarking from the ship, and that he assumed a known risk by failing to take such steps.

Our review of the facts leads us to conclude that the trial judge was correct in determining that the plaintiff was not con-tributorily negligent and did not assume a known risk. We find the record devoid of facts sufficient to demonstrate that the plaintiff was negligent for failing to grab onto the handles extending out from the bits on which the boat was tied. The defendant was never able to prove that the plaintiff’s hands were completely free as he left the ship, and that he was not holding onto the ship’s handrail as he disembarked. Furthermore, we have already concluded earlier that the step that the plaintiff took was one that could have been safely made, even with the presence of rainwater on the bulkhead, had there not been diesel fuel on the cap. Therefore, the plaintiff’s claim of contributory negligence and assumption of a known risk were properly dismissed.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs at trial and on appeal are assessed against the defendant, Cameron Offshore Services, Inc.

AFFIRMED.


text:
    HUBER OIL COMPANY OF LOUISIANA, INC., Plaintiff & Appellee, v. SAVE-TIME, A Partnership, Terry J. Wall, Individually, and d/b/a Wall’s Pak-a-Bag, Inc., James Howard, Individually, d/b/a Howard’s Grocery and Vincent Oil Company, Defendants & Appellants.
    No. 82-242.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Jacques, Rester & Townsend, Daniel K. Rester, Lake Charles, for defendants & appellants.
    Scofield, Bergstedt, Herard, Hackett & Mount, Richard E. Gerard, Lake Charles, for plaintiff & appellee.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Emmett C. Sole, Lake Charles, for defendant-appellee-appellant.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

Huber Oil Company of Louisiana, Inc., hereinafter “Huber,” filed this suit for in-junctive relief to enforce contracts which it had to sell gasoline to three convenience stores, two of the contracts being with the former owners of the stores and the third with the former lessee. The defendants are (1) Save-Time, a partnership which purchased two of the stores from the owners and leased the third, (2) Terry J. Wall, the previous owner of one of the stores and lessee of another, (3) James Howard, previous owner of one of the stores, (4) Save-Time, Inc., operator of all three stores, and (5) Vincent Oil Company, which desires to sell gasoline to the three stores. At the time plaintiff filed its original petition, it obtained a temporary restraining order enjoining all of the defendants from terminating the sales agreements between Huber and Wall and between Huber and Howard pertaining to the delivery of gasoline to the three stores, and enjoining the defendants from removing the signs or other equipment installed by Huber, and from taking any action to interfere with Huber’s performance of the sales agreements. The defendants filed motions to dissolve the temporary restraining order and demands for damages caused by its illegal issuance. Additionally, defendants Save-Time Partnership and Save-Time, Inc. filed a petition for a preliminary injunction enjoining Huber from delivering products to the three stores or from entering upon the property, and further ordering Huber to remove all signs or other equipment installed by Huber on the properties.

The rules to dissolve Huber’s temporary restraining order were heard on the pleadings, affidavits and arguments of counsel, and the court dissolved the temporary restraining order for lack of a proper bond, reserving to the defendants the right in further proceedings to seek damages for the wrongful issuance of the order.

A hearing was held on Huber’s rule for a preliminary injunction, the rule by Save-Time Partnership and Save-Time, Inc. for a preliminary injunction against Huber, and exceptions of no right or cause of action filed by Vincent Oil Company. The court granted to Huber a preliminary injunction against all defendants to the same effect as the temporary restraining order described above. The court denied the preliminary injunction against Huber sought by Save-Time Partnership and Save-Time, Inc., and overruled the exception of no right or cause of action filed by Vincent Oil Company. From that judgment, Save-Time Partnership, Save-Time, Inc. and Vincent Oil Company have appealed. We reverse.

The substantial issues are: (1) Is Huber entitled to a preliminary injunction against the defendants? (2) Are Save-Time Partnership and Save-Time, Inc. entitled to a preliminary injunction against Huber? (3) Has Huber alleged a cause of action against Vincent?

THE FACTS

The facts are as follows: On February 3, 1981 Huber entered into an agreement with Terry Wall, d/b/a Wall’s Pak-A-Bag, Inc. in which Huber agreed to supply gasoline for ten years to a convenience store owned by Wall and located at Highway 14 and Western Street. On February 3, 1981, the same parties entered into an identical contract in which Huber agreed to supply gasoline for five years to another convenience store location, of which Wall was lessee and operator, located at Highway 14 and Smith Road. A third contract was entered into on September 10, 1981 with Howard to supply gasoline to a store owned by Howard and located at Claude Hebert Road, Lake Charles, Louisiana for a period of 15 years.

These contracts simply state that supplier agrees to furnish and maintain all equipment necessary for the sale of gasoline and will supply gasoline for the stated period of time. There is no mention in the contracts as to the price at which the gasoline will be supplied or that Huber Oil would be the exclusive supplier. All three contracts were recorded in the conveyance records of Cal-casieu Parish, Louisiana prior to February, 1982. ■

On December 16, 1981, a partnership known as Save-Time Partnership came into existence. This partnership is composed of two other legal entities and Terry Wall. The partnership bought the property owned by Mr. Wall on Western Street and the store owned by Howard. Additionally, as to the store leased by Wall, he assigned the lease to the partnership.

At the time of the transfer of the properties and the lease to Save-Time Partnership, Huber had certain tanks, signs, insignia and other equipment installed on the properties. On the date before the transfer of the properties to the partnership, Vincent Oil Company wrote at the request of the partnership to Huber Oil Company to inquire what arrangements could be made for the sale and transfer of Huber’s equipment at the three sites.

Huber then instituted this suit for injunc-tive relief and obtained the temporary restraining order above described. On the trial of the rule for preliminary injunction, the trial court found that the written agreements between Huber, Walls and Howard were “valid contracts in full force and effect on the day of the sale of the immovable property.” The court found as a fact that the partnership and Save-Time, Inc. had actual knowledge of the written contracts and that by their purchase of the two convenience store sites and the lease of the third they have assumed the contracts between Huber and Wall and between Huber and Howard.

IS HUBER ENTITLED TO PRELIMINARY INJUNCTION? LSA-C.C.P. article 3601 states:

“Art. 3601. Injunction, grounds for issuance, preliminary injunction; temporary restraining order
“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law;
* * * * * *
“During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.”

In order to avail oneself of the remedy provided by this article, one must be without an adequate remedy at law. The plaintiff must show that irreparable injury, loss or damage will ensue if an injunction is not granted. Therefore, the party seeking an injunction under LSA-C.C.P. article 3601 must show that the loss alleged cannot be adequately compensated in money, or that it is a loss for which damages are not susceptible of being measured by pecuniary standards. LeBlanc v. Lyons, 401 So.2d 626 (La.App. 3rd Cir.1981).

The jurisprudence has recognized that the sole purpose of a preliminary injunction is to preserve the status quo pending a full trial on the merits. A preliminary injunction may be granted only upon a prima facie showing that the plaintiff is entitled to such judgment, i.e., that irreparable injury will result at the hands of the defendants if the plaintiff’s prayer is denied. See Southwest Sales & Manufacturing Company, Inc. v. Delta Express, Inc., 342 So.2d 281 (La.App. 3rd Cir.1977), writ refused 345 So.2d 48 (La.1977).

The plaintiff relies upon the following cases in which preliminary injunctions were granted. Daigre Engineers, Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2d Cir.1980) was concerned with plaintiff’s loss of the right of arbitration as specified in the engineering contract between the parties. Haughton Elevator Division v. State of Louisiana, 367 So.2d 1161 (La.1979) dealt with a disqualified bidder’s right to a fair hearing in connection with the Public Contract law requiring the letting of public contracts to the lowest qualified bidder. Town of Kinder v. Beauregard Electric Coop. Inc., 339 So.2d 891 (La.App. 3rd Cir.1976) involved the protection of the franchise rights granted to a public utility by a municipality. These cases all concern rights which were adjudged to be insusceptible of monetary valuation.

In the instant case, we discern no such harm to the plaintiff as a result of the defendants’ conduct which could not be compensated in money damages. This is basically an action to enforce alleged sales contracts, and we see no reason why any damages resulting from the breach of the contracts, if there are such binding on the defendants, cannot be measured according to a pecuniary standard. The loss of business or sales, goodwill and retail outlet sites can be calculated in monetary terms in a suit for such damages.

Moreover, a party is only entitled to injunctive relief if the facts supporting the request for preliminary injunction present a prima facie case justifying its issuance. Schwegmann Brothers Giant Supermarkets v. Louisiana Milk Commission, 290 So.2d 312 (S.Ct.1974). The plaintiff has failed in this burden.

While we recognize that a suit for preliminary injunction is not controlling on the merits of the principal demand, Smith v. West Virginia Oil & Gas Company, 373 So.2d 488 (La.1979), the plaintiff has shown no contractual rights against these defendants. Its contract is with the individuals who owned or leased the convenience stores prior to their acquisition by the defendant, Save-Time Partnership.

The plaintiff argues that the effect of the preliminary injunction is merely to preserve the status quo by enforcing its contracts. However, inasmuch as there is no contract between Huber and Save-Time, the trial court’s injunction has the effect here of ordering Save-Time to honor a contract to which it is not a party.

Nor does the plaintiff have a cause of action based on any real right in the land on which Huber’s equipment is located. LSA-C.C. article 2012 states the methods by which real obligations can be created:

“Art. 2012. Methods of creating real obligations. Real obligations may be created in three ways:
1. By the alienation of immovable property, subject to a real condition, either expressed or implied by law.
2. By alienating to one person the immovable property, and to another, some real right to be exercised upon it.
3. By the creation of a right of mortgage upon the immovable property.
All these contracts give rise to obligations purely real on the part of those who acquire the land, under whatever species of title they possess it; they are not personally liable, but the real property is, and, by abandoning it to the obligee, they relieve themselves from all responsibility.
A sale subject to a rent charge, or to a right of redemption as consideration * of the sale, are examples of the first kind of obligations; servitudes, the right of use and habitation and usufruct, are examples of the second; and the several kinds of mortgages, and the creation of a rent charge, of the third.”

In the case at bar, the contracts simply state that Huber will supply gasoline to the three convenience stores. The contracts also state that Huber will provide all equipment necessary for »he sale of this gasoline. These gas sale contracts provide only personal rights existing between the parties thereto. They do not convey to the plaintiff any rights in or to the land on which the convenience stores are located which are effective against third party purchasers or lessees of the land. See Hawthorne Oil & Gas Company v. Continental Oil, 377 So.2d 285 (La.1979).

Defendants-appellants, Save-Time, Inc. and Save-Time Partnership, contend that the contract between the former operators of the convenience stores and Huber are not binding in that they lack the necessary elements of a contract such as mutuality of consideration. We find that the issue of the validity of these contracts between Huber, Wall and Howard is not before us at this time.

IS SAVE-TIME ENTITLED TO PRELIMINARY INJUNCTION?

The next issue is whether Save-Time, Inc. and Save-Time Partnership are entitled to injunctive relief against Huber. During the pendency of these proceedings, Huber Oil Company has sought to deliver and has been delivering its gasoline to the three convenience stores. These actions disturb the possession of these defendants, hindering the stores from proper operation. We find that this issue is controlled by LSA-C. C.P. article 3663, which provides in pertinent part:

“Injunctive relief, under the applicatiable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein is available to:
% * * sjs Sfc ♦
“(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.”

Save-Time Partnership and its ancestors in title to the stores it owns have been in uninterrupted possession for more than a year, and are therefore entitled to injunctive relief under paragraph 2 of this article. As to the store of which Save-Time Partnership is lessee, it also has a right to injunctive relief under LSA-C.C.P. article 3663(2) to protect its possession. Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3rd Cir.1972). An injunction should issue enjoining Huber from the delivery of products to the sites in question under the contracts, and also ordering Huber to remove all signs, insignia and/or other equipment installed by Huber on the properties under the contracts in question.

VINCENT’S EXCEPTION OF NO CAUSE OF ACTION

Plaintiff’s petition alleges:

“13.
“By letter dated February 25, 1982, the defendant, VINCENT OIL CORPORATION, informed the petitioner that it would be making future deliveries of gasoline products to the facilities described above and that it would replace the petitioner’s dispensers at the LeBleu Settlement facility (formerly Howard’s Grocery) and requested an invoice for the current market value of the petitioner’s other equipment at all the facilities described above.”

The preliminary injunction granted by the trial court restrains Vincent from “in any way interfering with the contractual relationship between Huber and Save-Time Partnership and Save-Time, Inc. for the contracts involving the Smith Road store, Western Street store and Claude Hebert store sites.”

In support of its exception of no cause of action, Vincent argues Louisiana law does not recognize a cause of action for inducement to breach a civil contract to which defendant is not a party. See Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902); Hartman v. Greene, 193 La. 234, 190 So. 390 (1939); and Moss v. Gaurisco, 409 So.2d 323 (La.App. 1st Cir.1981).

Since Louisiana law does not recognize a cause of action against a third party who allegedly induces a breach of a civil contract, Huber has not alleged a cause of action against Vincent. The exception of no cause of action should be sustained.

DECREE

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendants-appellants and against the plaintiff rejecting the plaintiff’s demand for a preliminary writ of injunction. It is further ordered, adjudged and decreed that there be judgment herein in favor of Save-Time Partnership and Save-Time, Inc. granting to them a preliminary injunction restraining and enjoining Huber Oil Company of Louisiana, Inc. from delivering under the contracts in question any of Huber’s products to the convenience stores located at Highway 14 and Western Street, Highway 14 and Smith Road, and Claude Hebert Road near LeBleu Settlement, all in Calca-sieu Parish, Louisiana, and further ordering Huber to remove from said properties all of its signs, insignia or other equipment installed by Huber on said properties under the contracts in question. It is further ordered, adjudged and decreed that there be judgment herein in favor of the defendant, Vincent Oil Company, and against the plaintiff, Huber Oil Company of Louisiana, Inc., sustaining Vincent’s exception of no cause of action and dismissing Huber’s suit against Vincent. All costs of the lower court as well as the costs of this appeal are assessed against the plaintiff.

REVERSED AND RENDERED.


author: CUTRER, Judge.

text:
    WILLIAMSON-DICKIE APPAREL MANUFACTURING COMPANY, Plaintiff-Appellant, v. HANGER, INC., Defendant-Appellee.
    No. 82-245.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Newman & Drolla, Richard L. Crawford, Baton Rouge, for plaintiff-appellant.
    Trimble & Associates, Elizabeth E. Foote, Alexandria, for defendant-appellee. ■
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Plaintiff, Williamson-Dickie Apparel Manufacturing Company (Williamson-Dick-ie), appeals a judgment sustaining an exception of “no right of action” filed by the defendant, Hanger, Inc., in plaintiff’s suit on an open account.

The exception of “no right of action” was sustained by the trial court after a hearing on February 22, 1982. On March 11, 1982, a judgment to this effect was signed and plaintiff was given thirty days “to amend their pleadings to state a right of action.” No amendment was filed as ordered by the court and a judgment dismissing plaintiff’s suit was signed on April 21, 1982. We affirm.

Plaintiff is a Texas corporation which is not authorized to do business in Louisiana. Defendant is a Louisiana corporation. Plaintiff sold certain goods to defendant and instituted an action on open account to collect the purchase price of these goods.

Before filing an answer defendant filed an exception entitled “Exception of No Right of Action.” Defendant maintained that plaintiff was doing business in Louisiana within the meaning of LSA-R.S. 12:314 and, because plaintiff was not authorized to do business in this state, plaintiff could not use the courts of this state to collect its accounts.

At the hearing on the exception defendant introduced plaintiff’s answers to interrogatories. These answers show plaintiff has over five hundred customers in Louisiana; plaintiff employs two salesmen who live in Louisiana; plaintiff, or a wholly owned subsidiary, owns two warehouses in Louisiana; plaintiff has sold its product in Louisiana for approximately fifty years; plaintiff attends trade shows in Louisiana and consummates some sales at these shows; in 1980, plaintiff’s sales in Louisiana totaled more than $3.6 million. Defendant also questioned Harry Coleman, president and owner of defendant corporation, about his business dealings with plaintiff in Louisiana.

Plaintiff briefly cross-examined Coleman and put no other evidence before the court. Plaintiff argued to the trial court that defendant’s exception should be considered dilatory in nature; that is, the proper exception would be lack of procedural capacity and, if defendant’s exceptions were sustained, plaintiff be given the time to qualify to do business in the state.

After hearing the evidence and arguments the trial court ruled, as follows:

"... I’m going to sustain the objection and allow the plaintiff thirty days to amend his pleadings to set forth a cause of action. If he does not, then the exceptions will be maintained and the suit will be dismissed.” The issues are:
(1) Whether plaintiff’s activities constitute transacting business with the state of Louisiana; and
(2) Whether the exception raised by defendant is a peremptory exception of no right of action or a dilatory exception of lack of procedural capacity.

TRANSACTING BUSINESS

The trial court found that plaintiff was transacting business within the state of Louisiana. No written reasons for judgment appear in the record. We shall examine the entire record to determine whether the trial court was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

LSA-R.S. 12:302 lists acts which do not constitute transacting business in Louisiana. No statutes establish those acts which do constitute transacting business within the state. Counsel for both parties have cited jurisprudence which point to different factors to be taken into consideration in deciding the question before us. We have examined the factors considered in our jurisprudence and applied them to the undisputed facts herein. We conclude that the trial court was correct in ruling that a foreign corporation which (1) had over five hundred customers in this state; (2) generated over three million dollars, in the last reported year, inside the state; (3) employed two residents of this state as salesmen; (4) owned, directly or through wholly owned subsidiaries, two warehouses in the state; (5) made credit sales in this state; (6) attended trade shows and consummated sales in this state; and (7) has sold its product in this state for approximately fifty years, is clearly transacting business in this state. Plaintiff, not being authorized to do business in this state, lacks the capacity to sue in our courts for the collection of its accounts.

EXCEPTION OF NO RIGHT OF ACTION OR LACK OF PROCEDURAL CAPACITY

Plaintiff counsel argues that, in the event it is found that plaintiff was transacting business in this state, the trial court erred by treating the exception as one of “no right of action.” Counsel contends that the exception should have been construed as an exception of lack of procedural capacity, which is a dilatory exception, the sustaining of which would not defeat plaintiff’s action, but would have the effect of delaying same until plaintiff could qualify to do business in Louisiana. Plaintiff argues that dismissing the plaintiff’s suit by sustaining an exception of no right of action defeated plaintiff’s action.

An examination of the jurisprudence cited by plaintiff’s counsel fully supports his position. In the case of West Publishing Co. v. Intrastate Pipeline Corp., 254 So.2d 643, 645 (La.App. 4th Cir.1971), writ ref’d, 260 La. 405, 256 So.2d 290 (1972), the court held as follows:

“However, under LSA-R.S. 12:211(A), a corporation may institute a judicial de mand when it complies with state laws for doing business in Louisiana and pays all taxes, excises and licenses due the state. Even where its suit has been dismissed for noncompliance with the statute. it may bring the suit again after discharging its obligations to the state., Thus the objection under LSA-R.S. 12:211(A) can only delay or retard, and cannot defeat, the action and the objection is in the nature of a dilatory exception (LSA-C.C.P. Art. 928).... On this question Outdoor Electric Advertising v. Saurage, 207 La. 844, 21 So.2d 375, handed down by the Supreme Court of Louisiana, is directly in point and therefore controlling on this court.” (Emphasis ours.)

The defendant entitled the exception “no right of action” and the trial court sustained the exception as such but granted plaintiff thirty days to qualify and amend its petition. The failure of plaintiff to qualify and amend resulted in the dismissal and appeal.

The jurisprudence clearly reflects that the exception should be construed as one of lack of procedural capacity. Even though the exception is labeled “no right of action,” we shall consider it as an exception of lack of procedural capacity.

Katz v. Katz, 412 So.2d 1291, 1293 (La.1982) provides:

“ ‘Every pleading shall be so construed as to do substantial justice.’ (C.C.P. 865). The source provision of this article was, according to the Official Revision Comments, ‘... a constant reminder ... that pleading is not an end in itself but merely a means to an end, . ..’ For the last quarter of a century, continues the comment, the decisions of Louisiana courts have been in accord with the philosophy that technical objections and harsh rules of pleadings should never be favored. Each pleading should be so construed as to do substantial justice. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976); Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 388 (1971).”

Also, LSA-C.C.P. art. 2164 provides that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal.

LSA-R.S. 12:211 does not envision a defeat of plaintiffs action but only to retard the action until plaintiff qualifies to do business under the provisions thereof. To accomplish this result we shall construe the exception as lack of procedural capacity and affirm the dismissal without prejudice. This conclusion will do substantial justice and comply with the jurisprudence cited above. The trial court judgment will be amended and affirmed accordingly.

For these reasons, the judgment of the trial court dismissing plaintiff’s suit is affirmed except that such dismissal shall be “without prejudice.” Plaintiff-appellant is to pay all costs of this appeal.

AMENDED AND AFFIRMED.

      . The appeal was actually taken April 13, 1982, before the judgment of dismissal was signed, but the fact that this appeal was filed before the dismissal judgment was signed by the trial court does not affect the. validity of this appeal. See, Palmer v. Wren, 361 So.2d 1206 (La.1978) which adopts Nomey v. State, 325 So.2d 732 (La.App. 2nd Cir.1976); Reed v. Superior Motors, 415 So.2d 219 (La.App. 2nd Cir.1982), and Magnum Corporation v. Dauphin, 286 So.2d 415 (La.App. 3rd Cir.1973).

      . “A. No foreign corporation transacting business in this state shall be permitted to present any judicial demand before any court of this state unless it has been authorized to transact such business, if required by, and as provided in, this Chapter. The burden of proof shall rest upon the corporation to establish that it has been so authorized, and the only legal evidence thereof shall be the certifícate of the secretary of state or a duly authenticated copy thereof.”

      . In the colloquy between the judge and lawyers that followed there was confusion as to what type of objection was being ruled upon. The trial judge correctly pointed out, “Well, it can’t be a no cause of action.” The judge continued, “It might be a no right of action.” The judge’s allowance of thirty days time for corrective action by the plaintiff, in effect, treats the exception as dilatory (lack of procedural capacity). We shall discuss this further in this opinion.


author: GUIDRY, Judge.

text:
    SUCCESSION OF Nainette K. AMOS, Respondent-Appellee. In re Opposition of Ralph K. BROWN, Mover-Appellant.
    No. 82-246.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.

      Dan E. Melichar, Alexandria, for mover-appellant.
    McLure & McLure, John G. Pickels, Alexandria, for respondent-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Nainette K. Amos died intestate on August 29, 1980 survived by her daughter, Alice C. Adams, and three grandchildren, Ralph K. Brown, Peggy C. Hawthorne and Kathryn C. Colby. The three grandchildren are the children of the decedent’s pre-de-ceased son.

Alice Adams was appointed administra-trix of her mother’s estate. During the course of her administration she filed a sworn descriptive list; petitioned for homol-ogation of the final tableau of distribution, which was granted; and filed a final account.

The grandchildren filed an opposition to the final account because of the administra-trix’s alleged failure to account for the sum of $10,000.00 represented by a certificate of deposit which was issued to decedent prior to her death by Louisiana Savings Association in Alexandria. The opposition was tried on a stipulation of facts between the parties. The certificate of deposit in question is not in the record. The trial court dismissed the opposition without reasons and ordered homologation of the account. Of the three grandchildren, only Ralph K. Brown appealed. Alice C. Adams answered the appeal seeking damages for frivolous appeal and taxation of costs to the appellant.

The pertinent facts as stipulated to by the parties are as follows. On February 29, 1980, a check in the amount of $5,400.00 was drawn from funds on deposit in a checking account of Nainette K. Amos and was combined with $4,600.00 in a savings account of Nainette K. Amos to purchase a $10,000.00 certificate of deposit at Louisiana Savings Association jointly in the names of Nainette K. Amos, Alice C. Adams and Frederick Lee Adams. Subsequently, on June 19, 1980, at the request of Mrs. Amos, Louisiana Savings closed the aforementioned $10,000.00 certificate account and transferred the entire account solely to the names of Alice C. Adams or Frederick Lee Adams. The account presently remains on deposit at said institution in the name of Alice C. Adams or Frederick Lee Adams.

The sole issue on appeal is whether the administratrix should have included the sum of $10,000.00, represented by the aforementioned certificate, among the assets of the Succession.

Before addressing this issue we deem it necessary to make the following observations. Although opponents style this proceeding as an opposition to the final accounting by the administratrix, we opine that it is more properly a motion to traverse the descriptive list filed by the administra-trix. LSA-C.C.P. Article 3137 provides that “... Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it...”. Secondly, although all three of the grandchildren filed the motion under consideration only one of the opponents, Ralph K. Brown, has appealed. We attach no particular significance to the failure of Peggy C. Hawthorne and Kathryn Colby to appeal. It was unnecessary that all three grandchildren join in filing the instant motion to traverse the descriptive list as any interested party may do so. Since Ralph K. Brown is clearly an interested party and has appealed, this was sufficient to present the issue in the trial court and preserve the issue for review. Finally, we observe that Frederick Lee Adams is not a party to these proceedings and Alice C. Adams is a party hereto only in her capacity as administra-trix of the decedent’s succession. There-. fore, the question as to the ownership of the funds represented by the certificate of deposit as between the Succession and the Adams is not at issue.

In brief to this court, the administratrix claims that the certificate of deposit was properly excluded from the descriptive list because the certificate did not belong to the decedent at the time of her death. In support of this assertion, appellee points to the fact that Mrs. Amos, prior to her death, authorized a transfer of the funds to a certificate solely in the name of Frederick Lee Adams and Alice C. Adams.

In our view, a succession representative, pursuant to his or her duty to collect and preserve the property of the succession (LSA-C.C.P. Article 3191), should include in a descriptive list, filed pursuant to LSA-C.C.P. Article 3137, any property which might be validly claimed by the succession. An inventory or descriptive list of the property of a succession is not conclusive, as to either the value or the ownership of the property. Succession of Dean, 33 La.Ann. 867 (La.1881); Succession of Williams, 171 La. 151, 129 So. 801 (1930).

In the case before us the facts show that some few months before the death of decedent she purchased, with her own funds, a $10,000.00 savings certificate which, pursuant to her instructions, was issued jointly to herself, Alice C. Adams and Frederick Lee Adams. There is no explanation as to why the certificate was issued in that manner. Subsequently, this certificate was cancelled and re-issued solely in the names of Alice C. and Frederick Lee Adams, again upon the decedent’s instructions. This transaction is, likewise, unexplained. Since there is no evidence in the record that any consideration flowed from the Adams to Mrs. Amos in connection with these transactions, we conclude that the funds represented by the June 19, 1980 certificate should be included on the descriptive list unless it can be determined that the aforementioned transfers of funds can be upheld as valid donations.

A donation intervivos is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts. La.C.C. Article 1468. Louisiana Civil Code Articles 1536, 1538 and 1539 regulate the donation of in-corporeals and movable property:

Article 1536 provides:
“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”
Article 1538 provides:
“A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.
‘Such an act ought to contain a detailed estimate of the effects given. ’ ”
Article 1539 provides:
“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

The Civil Code defines corporeals as things that have a body and can be felt or touched. La.C.C. Article 461. Conversely incorporeals have no body, but are comprehended by the understanding. La.C.C. Article 461. Corporeal movables are things which can be moved from place to place. La.C.C. Article 471. Incorporeal movables are rights, obligations and actions that apply to a movable thing such as bonds, annuities, and interests or shares in entities possessing juridical personality. La.C.C. Article 473. Funds used to purchase a certificate of deposit are corporeal movables and subject to manual gift provided there was actual delivery of the funds. Succession of Miller, 405 So.2d 812 (La.1981).

The first question then is whether the purchase of the certificates jointly in the names of Mrs. Amos and the Adams constituted a delivery of the funds. Broussard v. Broussard, 340 So.2d 1309 (La.1976) is controlling on this point.

In Broussard, the wife filed suit against her former husband for partition of the community. The wife claimed that when her husband purchased, with separate funds, certificates of deposit in both their names, he donated the money to the community. In answer to this contention, the Supreme Court stated:

“There was no actual delivery of the cash to Mrs. Broussard. The purchases of certificates in the names of both spouses, without an actual withdrawal and delivery of funds to Mrs. Broussard, did not effect a manual gift or a donation to her. Rather, the purchases were analogous to a deposit in a joint savings account, which in and of itself, will not transfer ownership of the funds. Succession of Dykes, 258 So.2d 606 (La.App. 1st Cir.1972); Dawson v. Capital Bank & Trust Co. of Baton Rouge, 261 So.2d 727 (La.App. 1st Cir.1972). See also, Basco v. Central Bank & Trust Co., 231 So.2d 425 (La.App. 3d Cir.1970); Owens v. Owens, 259 So.2d 454 (La.App. 3d Cir.1972). Furthermore, an account on deposit is an incorporeal right, La.C.C. arts. 460, 474, which may only be donated by a notarial act in compliance with Article 1536. Vercher v. Roy, 171 La. 524, 131 So. 658 (1930); Northcott v. Livingood, 10 So.2d 401 (La.App. 2d Cir.1942); Basco v. Central Bank & Trust Co., supra; Owens v. Owens, supra."

Broussard v. Broussard, 340 So.2d 1309, 1313.

We now consider whether the subsequent transfer of the certificate of deposit solely to the name of the Adams constituted a valid manual donation. The subsequent transfer was not a transfer of funds. Rather, it was a transfer of a certificate of deposit. Under the provisions of our civil code a certificate of deposit, or the credit right evidenced by a certificate of deposit is an incorporeal movable and not subject to manual gift. Therefore, even if Mrs. Amos, in transferring the certificate account, divested herself of the right to withdraw the funds and did so with donative intent, without an act passed before a notary and two witnesses, under the provisions of our civil code, there was no valid donation. Succession of Miller, 405 So.2d 812, 819 (La.1981).

However, we note that there is an exception to the authentic act requirement for inter vivos donations of negotiable instruments recently enacted by our legislature. R.S. 10:3-201 was amended by Act 452 of 1982 to add Section 4 which reads as follows:

“Donations inter vivos of negotiable instruments shall be governed by the provisions of this chapter, notwithstanding any other provision of the Louisiana Civil Code or any other law of this state relative to the form of donations inter vivos, to the contrary.”

This revision is specifically denoted as remedial and retrospective, validating any donation inter vivos made on or before the effective date of the act. The effective date of Act 452 was September 10, 1982, which was after this opposition was tried in the district court.

There is no evidence in the record as to the negotiability or non-negotiability of the certificate of deposit in question. Section 3-104 of Louisiana’s Commercial Laws provides that a “certificate of deposit” may refer to an instrument which is not negotiable as well as to an instrument which is negotiable.

Accordingly, we consider that the interests of justice require that this matter be remanded to the trial court for further proceedings in order that the parties hereto may have the opportunity to introduce any additional evidence bearing upon the negotiability or non-negotiability of the certificate of deposit in question and whether, if negotiable, the circumstances surrounding its alleged transfer constitutes a valid donation inter vivos within the provision of Louisiana’s Commercial Laws, LSA-R.S. 10:1-101 et seq.

Accordingly, the judgment appealed from is reversed and it is ordered that this case be remanded to the trial court for further proceedings in accordance with law and not in conflict with the views expressed herein.

REVERSED AND REMANDED.