author: JASPER E. JONES, Judge.

text:
    Jeannine Elizabeth Tobin HAMITER, Plaintiff-Appellee, v. James Jewell HAMITER, Defendant-Appellant. James L. HAMITER, Plaintiff-Appellant, v. Jeannine T. HAMITER, Defendant-Appellee.
    Nos. 14938, 14939.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      James E. Franklin, Jr., Shreveport, for plaintiff-appellee.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell & Joseph L. Shea, Shreveport, for defendant-appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.

       F. Jones, J., dissents from refusal to grant a rehearing.

   JASPER E. JONES, Judge.

The litigants in these consolidated separation and divorce actions are James J. Hami-ter and Jeannine T. Hamiter. Mr. Hamiter appeals a judgment awarding Mrs. Hamiter alimony pendente lite of $2,200 per month and permanent alimony of $1,700 per month, and enjoining him from alienating, encumbering or disposing of any assets belonging to the community formerly existing between the parties.

Appellant makes three assignments of error. He contends the trial judge erred in (1) making an excessive award of alimony pendente lite and making the award retroactive, (2) awarding excessive permanent alimony, and (3) making an alimony award so large that it cannot be satisfied from income and enjoining the use of his assets to obtain funds to satisfy the award.

Mr. Hamiter does not appeal the judgment insofar as it decrees the divorce.

ASSIGNMENT # 1

Through this assignment appellant attacks both the amount and retroactivity of the award of alimony pendente lite.

As the award of alimony pendente lite was made in the judgment which granted the divorce it has no prospective effect and is not subject to review. There being no suspensive appeal of an alimony judgment, it has been held that even if it is amended on appeal the judgment continues in its original amount until the appellate judgment becomes final. Langham v. Langham, 381 So.2d 1284 (La.App. 2d Cir. 1980); Frederic v. Frederic, 302 So.2d 903 (La.1974); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir. 1979). Kriger v. Kriger, 397 So.2d 21 (La.App. 2d Cir. 1981). Thus, this court has concluded that the correctness of an award of alimony pendente lite is moot when the divorce judgment, which terminates alimony pendente lite, is signed before the appellate judgment would become final. Tisby v. Tisby, 382 So.2d 1053 (La.App. 2d Cir. 1980).

Here the divorce was granted contemporaneously with the retroactive award of alimony pendente lite and this assignment, under the rationale of Tisby, is moot. It is appellant’s position, however, that the application of Tisby, and through it Bruner, Frederic, Langham and Kriger, supra, would be constitutionally infirm as a denial of his right to judicial review under LSA-Const. Art. 1 § 19.

The right of judicial review is subject to reasonable legislative restriction. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976); Harris v. Dupree, 322 So.2d 380 (La.App. 2d Cir. 1975), writ refused 325 So.2d 612 (La.1976).

LSA-C.C.P. art. 3943 provides:

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

The official comments under this Article state:

“It overturns a line of cases holding that a suspensive appeal may be taken from an alimony judgment .... Thus the wife will no longer be deprived of necessary support pending appeal.”

The purpose of the provisions of LSA-C. C.P. art. 3943 denying a suspensive appeal from an alimony judgment is to prevent the denial of necessary support to a spouse pending appeal. That purpose demands the rule of Frederic, Bruner, Langham, and Kriger, supra. Without that rule the spouse receiving alimony would be put in an uncertain and precarious position only slightly better than he would occupy with no alimony award at all. Article 3943 as interpreted by Frederic, Bruner, Langham and Kriger, supra, is a reasonable and valid restriction on the right of judicial review.

Though we conclude that the propriety of the award of alimony pendente lite is moot, we also note that the record justifies the award.

Appellant complains that the retroactive award of alimony pendente lite is unfair and inequitable. These complaints are spurred by the fact that the retroactive award is for eighteen months and consequently represents a considerable sum.

We observe that the delay in the trial of this matter was not occasioned by sloth on the part of appellee or her various counsel. Some of the delay can be attributed to the time necessary for each of appellee’s new counsel to prepare to represent her in this complex litigation. Delay has also been occasioned by several writ applications by appellant.

While this court has recognized that in the face of compelling reasons the trial judge may elect not to commence alimony pendente lite from the date of judicial demand, Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2d Cir. 1973), it is apparent from the district judge’s action that he found no compelling reason here. We discern no error in that finding.

Though the judgment makes the award of alimony pendente lite retroactive, it also gives appellant credit for amounts previously paid under an agreement between the parties. This negated any unfairness which might have come from the. retroactive award. Whitmeyer v. Whitmeyer, 326 So.2d 884 (La.App. 2d Cir. 1976).

Appellant also contends the district judge unconstitutionally applied LSA-C.C. art. 148. The substance of this argument is that by awarding the appellee-wife alimony pendente lite at a level sufficient to allow her to live as she had during the marriage, the court reduced appellant’s living standard to a level greatly below the one enjoyed by him before the separation and that this results in an unconstitutional gender discrimination in favor of appellee.

Generally, a litigant must plead the unconstitutionality of a statute in the trial court in order to raise the issue on appeal. Johnson v. Welsh, 334 So.2d 395 (La.1976); Nelson v. Nelson, 377 So.2d 882 (La.App. 4th Cir. 1979). Assuming arguendo that appellant is entitled to raise the issue of the possible unconstitutionality of Article 148 as it was not plead in the trial court, we observe that the primary problem with this argument is that it is not based on the facts of this case.

The record shows that the Hamiters enjoyed a high standard of living during their marriage and appellant has continued in that lifestyle during the pendency of these proceedings. Appellant’s latest financial statement in the record places his net worth at $440,000. That figure appears to be somewhat low due to substantial undereval-uation of his wholly owned corporation and real estate holdings.

The award of alimony pendente lite seems appropriate to allow the parties to live at the same level though, that may be somewhat below the level they previously enjoyed. The award is for an amount such that, had appellant been paying it previously, both parties would have borne, approximately equally, the hardships occasioned by the situation and such an award is appropriate. Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980); Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir. 1980). The record does not support appellant’s assertion that the award of alimony pendente lite was for an amount which would have allowed appellee to enjoy a much higher standard of living than his.

This assignment of error is without merit. ASSIGNMENT # 2

Through this assignment of error appellant attacks the award of $1,700 per month in permanent alimony. The judgment makes this award subject to a credit of $650 per month as long as appellee continues to reside in the family home and appellant pays the house note, $99 per month, taxes (amortized at $24 per month) and insurance (about $55 per month).

Appellant contends that the award of permanent alimony was based on inflated and exaggerated claims of expenses by ap-pellee.

The award of permanent alimony under LSA-C.C. art. 160 should provide for the basic necessities of food, shelter and clothing and reasonable expenses for transportation, medical care and drugs, utilities, household items and taxes. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Perry v. Perry, 319 So.2d 479 (La.App. 2d Cir. 1975), writ refused 322 So.2d 775 (La.1975).

We agree with the observation of Judge, now Justice, Lemmon that

“... a wife of 26 years should not be impoverished because her marriage to a spouse with substantial income has ended through no fault of her own...” (357 So.2d 90, at p. 93),

though she should not be maintained in the style of living she enjoyed during the marriage. Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir. 1978), writs refused 358 So.2d 644 (La.1978).

The trial judge is vested with much discretion in setting the amount of alimony and his award will be disturbed only when that discretion is abused. Lormand v. Mouton, 337 So.2d 920 (La.App. 3d Cir. 1976); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir. 1979); Super v. Super, 397 So.2d 1084 (La.App. 4th Cir. 1981), writ denied 399 So.2d 583 (La.1981); Tracy v. Tracy, 388 So.2d 66 (La.App. 1st Cir. 1980).

Appellant attacks the amount and propriety of virtually every expense claimed by appellee. As to some of these items, appellant’s contentions are inconsistent with his own claims. After a review of the evidence we conclude that the following items and cost to provide them are adequately established by the totality of the evidence:

Utilities $ 170.87
Telephone 18.75
Dentist 50.00
Auto Payments 250.00
Auto Expense (oil, gas) 125.00
Auto Insurance 57.08
Hospitalization and Medical Insurance 100.00
Drugs 10.30
Medical Care 120.00
Food 260.00
Clothing 100.00
Housing 350.00
Household Supplies 45.00
Replacement cost of Washing Machine 45.00
TOTAL: $1,702.00

Appellee is also entitled to an amount to compensate for taxes which will vary depending on the amount of alimony received. The proven expenses fully support the amount of the award of permanent alimony.

Appellant contends that the trial judge erred in concluding appellee has no earning capacity and that the award of permanent alimony should be reduced to take into account appellee’s earning capacity.

Whether or not appellee has any earning capacity is a question of fact on which we may not disturb the trial judge’s finding absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The evidence shows that appellee has not been employed in over twenty years, that she has a back infirmity for which she had an operation, and that she regularly undergoes physical therapy for her back ailment. This evidence amply supports the conclusion by the district judge that appellee has no earning capacity.

Appellant contends that the award of permanent alimony is excessive in that it exceeds one-third of his income in violation of LSA-C.C. art. 160.

The one-third rule of Article 160 applies to gross income. Shelton v. Shelton, 395 So.2d 899 (La.App. 2d Cir. 1981); cf. Lormand v. Mouton, supra. One cannot hide behind a corporate entity to avoid paying alimony and corporate benefits may be included in gross income. Ballard v. Ballard, 367 So.2d 1220 (La.App. 2d Cir. 1979); Gutierrez v. Gutierrez, 172 So.2d 753 (La.App. 4th Cir. 1965).

Appellant is the owner and president of Ideal Builder’s Hardware, Inc. In his capacity as president he receives a salary and numerous fringe benefits. Included among those is a car and gasoline for business and personal use. Appellant contends this benefit is worth only $102.04. That estimate is unrealistic. We find the value of the car and gas to appellant to be at least $250.00.

We find appellant’s gross monthly income to be as follows:

Salary $1,800.00
Car Expense Free (Provided by corporation) 250.00
Life Insurance (monthly premium pd. by corp.) 305.64
Oil and Gas Income 51.52
Receives monthly from Credit Sale of House and Lot 75.00
Rental Income 1.470.57
TOTAL: $3,952.73

One-third of appellant’s income is $1,317.58 and Article 160 requires that the award of permanent alimony be reduced to that amount. The credit allowed appellant for appellee’s use of the family home must also be reduced to $425.00.

We conclude that the amount of credit allowed appellant by the trial judge on the permanent alimony of $650 per month for the use of the community home by the appellee was related to the amount of the monthly permanent alimony award, and for that reason since we were required to reduce the monthly alimony award we also find it only fair to reduce the amount of credit to which appellant will receive for appellee’s use of the family home to $425.

The appellant owes a total of approximately $70,000, the liquidation of which he contends creates monthly fixed obligations totaling approximately $1600, which he must pay from his $3100 after tax net cash flow income, which leaves only $1500 to meet his own monthly living expenses which total approximately $1400. He therefore argues he has very little monthly income available to contribute toward the living expenses of his former wife.

The duty to pay alimony creates a very high priority obligation. One who owes alimony is required, if necessary, to reduce his expenses and make adjustments with his creditors in order to meet his alimony obligation. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir. 1979); Shelton v. Shelton, supra. The appellant has a net worth reflected on what we construe from the evidence to be an extremely conservative financial statement, of $440,000. He should easily be able to make the necessary adjustments to liquidate the necessary amount of his assets to secure the funds to pay enough of his debts that he can pay the remainder monthly and still meet his alimony obligation and pay his own living expenses.

Appellant’s final contention with respect to this assignment is that the modification is constitutionally required to be made retroactive to the first payment. For the reasons expressed with respect to the first assignment, we conclude that our judgment reducing the permanent alimony and adjusting the use of the family home credit, should have only prospective effect. Frederic; Bruner; Langham, and Kriger, supra.

ASSIGNMENT # 3

Through this assignment appellant attacks the post divorce injunction against his alienation, encumberance or disposal of the assets of the former community.

A party is not entitled to an injunction in a divorce judgment prohibiting the other from alienating or encumbering assets of the former community without a showing of irreparable injury. LeBlanc v. Lyons, 401 So.2d 626 (La.App. 3d Cir. 1981).

Here appellee has made no showing of irreparable injury and the trial judge was in error in maintaining the injunction after the divorce.

For the reasons set forth the judgment is amended to delete the fifth paragraph which provided for the injunction and to amend the fourth paragraph to reduce the monthly alimony to $1,317.58 and the credit which appellant shall receive on the alimony for appellee’s use of the family home to the sum of $425.00. The reduction in alimony and family home credit to be effective only prospectively from the date of the finality of this decision.

As AMENDED the judgment is AFFIRMED. Costs on appeal are taxed equally against both parties.

      . The award of alimony pendente lite was made retroactive to the date of judicial demand, April 2, 1980.

      . LSA-C.C. art. 148; Ward v. Ward, 339 So.2d 839 (La.1976).

      . LSA-C.C.P. art. 3943.

      . LSA-Const.Art. 1 § 19 — No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.

      . Appellee lost her original counsel because of her inability to pay for her attorney’s fees as they accrued. The second change of counsel was necessitated when appellant had appellee’s second counsel disqualified because of a potential conflict.

      . The complexity of this matter is illustrated by the fact that the consolidated record contains seven volumes.

      . Art. 148 — If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.

      . Since departing the matrimonial domicile, appellant has taken for recreation two trips to Snow Mass, Colorado, one to Miami, Florida, and shorter trips to New Orleans and Hot Springs.

      . C.C. art. 160 — When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.

      . Appellant contends that appellee’s claim of $260 per month for food is excessive and that $200 per month is sufficient for appellee’s food and household supplies while he claims a monthly expense of $450 for food alone.
      Appellant also contends that appellee is not entitled to any amount for the purchase of a car because she has an operating vehicle. The vehicle which forms the basis of this contention is a 1976 Oldsmobile. The record shows that the Oldsmobile is unreliable and in a deteriorating state. This auto is not the type of transportation to which appellee is entitled under Bernhardt. That appellee has ceded the use of the Oldsmobile to her daughter is of no moment and unsurprising in light of its condition.
      Further discussion of appellant’s contentions on an item by item basis would add nothing to this opinion.

      . The corporation also insured the vehicle.

      . This does not include approximately $30,000 which he contends he owes his attorneys for their services in this domestic litigation.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Annie Mae JONES, Plaintiff-Appellant, v. Lemuel R. HALL, North American Van Lines, and Fireman’s Fund Insurance Company, Defendants-Appellees.
    No. 14942.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.

      Gordon, Bailey & Associates by Norman R. Gordon and Jack M. Bailey, Jr., Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendants-appellees, Lemuel Hall and North American Van Lines.
    Before PRICE, HALL, and JASPER E. JONES, JJ.
   HALL, Judge.

This suit arises out of an accident which occurred when plaintiff’s automobile was struck by a tractor-trailer rig overtaking her from behind as she slowed and commenced to make a left turn off the highway into her driveway. After trial, the district court found that Hall, the driver of the tractor-trailer rig, was negligent and that plaintiff was contributorily negligent, barring her recovery. Plaintiff appealed from the judgment dismissing her suit. Finding that the trial court erroneously held that plaintiff was guilty of contributory negligence which was a cause of the accident, we reverse and award plaintiff damages.

The accident occurred on September 25, 1979 at about 5:30 p. m. Plaintiff, Annie Mae Jones, and several members of her family had been shopping in Coushatta and were returning home via U.S. Highway 71. Plaintiff’s home is located on Highway 71 about three miles south of Coushatta. Hall, driving a tractor-trailer rig pursuant to a contract with defendant North American Van Lines, left Coushatta about the same time as plaintiff and, like plaintiff, was traveling south on Highway 71. The rig was some distance behind plaintiff’s vehicle which was maintaining an average speed of about 40 miles per hour.

As plaintiff neared her driveway she put on her brakes to slow for the left turn into her drive. Plaintiff activated her left-turn indicator when she was 100-120 feet from the driveway. As plaintiff began her turn, her vehicle was struck from behind by the tractor-trailer rig. The scene of the accident lies within a no-passing zone, marked by double yellow stripes on the highway, which extends seven hundred feet north of the point of impact near plaintiff’s driveway and some distance beyond.

Defendant Hall testified that he left Coushatta, was proceeding south on Highway 71, and that the Jones vehicle was being driven in an erratic manner in that it was being driven at varying speeds ranging from 25 to 45 miles per hour. Hall testified he had been following the Jones vehicle for a couple of miles when Jones slammed on her brakes and Hall, in order to avoid an accident, veered to the left. At that time, the Jones vehicle began to accelerate and was also veering to the left, forcing the tractor-trailer rig to veer left toward the shoulder of the road. Hall claimed that the point of impact was in the northbound lane about one foot from the shoulder. The investigating state trooper stated in the accident report that he also considered this to be the point of impact.

Mrs. Jones testified that she slowed for the turn about 300 feet from her driveway and activated her left-turn indicator when she was 100-120 feet from the driveway. At this point, she looked in the rear view mirror and saw the Hall vehicle was approximately 300 feet behind her. She testified she had barely begun her turn when Hall’s rig struck her vehicle on the left rear bumper, causing the car to turn, and then hit plaintiffs vehicle in three other places with the greatest damage occurring to the left front fender. These facts were corroborated by plaintiff’s daughter, a passenger in the vehicle, and by two disinterested eyewitnesses. These witnesses also testified that the Hall vehicle was traveling too fast and would have hit plaintiff’s vehicle whether she had turned or not.

The recited testimony and facts clearly support the trial court’s determination that Hall was negligent in following too closely, being inattentive, failing to reduce his speed, and in attempting to pass in a no-passing zone.

The trial court found that plaintiff was negligent in making a left turn without checking for overtaking traffic, even though both plaintiff and defendant were traveling in a no-passing zone, and that her negligence was a cause of the accident. The trial court’s analysis and application of the law would be correct if plaintiff’s attempt to turn left caused the accident. However, the testimony of plaintiff and the disinterested eyewitnesses, as well as the photographs in evidence showing the damage to plaintiff’s vehicle, establish that plaintiff’s action in beginning to make a left turn was not a cause in fact of the accident.

It is correct, as argued by defendant and as held by the trial court, that a left-turning motorist has a duty to check for passing traffic before actually commencing a left turn by turning across the center line. If an overtaking vehicle is already in the passing lane at the time the left-turning motorist actually commences the turn, then the left-turner is negligent in making the turn at a time when it is unsafe to do so. Choate v. Louisiana Farm Bur. Mut. Ins. Co., 384 So.2d 511 (La.App. 2d Cir. 1980); Songe v. Highlands Insurance Company, 336 So.2d 243 (La.App. 1st Cir. 1976). However, this case is essentially a rear-end collision case and not a left-turn case. Plaintiff did not turn into the path of a vehicle which was already fully in the passing lane. This rear-end collision was caused by the overtaking truck driver’s failure to slow down when plaintiff slowed and gave her left-turn signal, making the rear-end collision inevitable regardless of whether plaintiff turned across the center line and regardless of the truck driver’s efforts to pass on the left to avoid a collision.

The eyewitnesses testified that the Hall vehicle was about to hit plaintiff’s car when the truck suddenly veered to the left. Hall’s testimony that when plaintiff slowed down near her driveway he had to take evasive action to avoid hitting her vehicle indicates that he was following too closely and, therefore, was unable to slow down and avoid colliding with the rear of plaintiff’s car. Hall testified he did not see the left-turn signal, although he admitted it was on after the collision. Although Hall took evasive action by trying to pass plaintiff’s car on the left, it is purely speculative to assume that he could have safely passed on the left if she had not begun to cross the center line of the highway. It is more probable than not that the tractor-trailer rig would have hit plaintiff’s car whether she crossed the center line or not. Further, it was not established that the rear of plaintiff’s car was across the center line at the time the rig hit her rear bumper; to the contrary, several witnesses testified that the front part of plaintiff’s car was only slightly across the center line when the initial impact occurred.

Nor is it established that had plaintiff checked again for overtaking traffic at the last moment before crossing the center line that she could or should have seen the tractor-trailer rig in the passing lane. The two eyewitnesses testified that the rig was right behind plaintiffs vehicle as plaintiff slowed for her turn and that the rig veered left, straddling the center line, only moments before the collision. The testimony of the eyewitnesses and of plaintiff also indicates that the point of impact was at or near the center line of the highway and that, therefore, the tractor-trailer rig was not completely in the passing lane when the impact occurred. Although the investigating trooper’s report placed the point of impact in the northbound lane one foot from the shoulder, the trooper had no independent recollection of the accident and was unable to testify what physical evidence lead him to that conclusion. Consequently, in view of the contrary eyewitness testimony regarding initial point of impact, we attribute little weight to the trooper’s determination of point of impact. The initial impact was on the left rear bumper of plaintiff’s car, and after the right front wheel of the truck also hit her left rear fender and the driver’s door, the main impact to the left front fender could well have been near the shoulder of the northbound lane.

When plaintiff braked, slowed and activated her left-turn indicator, all in accord with safe-driving practices, all of the forces were in motion for a rear-end collision to ensue because of Hall’s inattention, excessive speed, following too closely, or a combination of these factors. The weight of the evidence is that the truck did not move into the passing lane until the impact was imminent. Further observation of overtaking traffic by plaintiff would not have prevented the collision and the fact that plaintiff had begun to execute a left turn by slightly crossing the center line did not contribute to the accident.

For these reasons the trial court erred in finding plaintiff contributorily negligent and in dismissing her suit. We reverse his judgment and award plaintiff damages.

Quantum

Immediately after the accident, plaintiff was taken to the emergency room of Huc-kaby Memorial Clinic in Coushatta where she complained of neck and back pain. The problem was initially diagnosed as mild whiplash and plaintiff was given pain medication and sent home. The following day, September 26, 1979, plaintiff saw Dr. Willis in Coushatta, reporting severe neck and back pain. An X ray of the cervical spine area was taken and plaintiff was given pain relief medication and a muscle relaxant.

Dr. Willis referred plaintiff to Dr. Dean, an orthopedic surgeon practicing in Shreveport, who examined plaintiff on September 26 and diagnosed plaintiff’s injury as a cervical sprain with a contusion of the right thumb and wrist. Dr. Dean advised plaintiff to continue with the medication prescribed by Dr. Willis, maintain bedrest and to apply heat to the sore muscles of the back and neck area. Plaintiff continued to see Dr. Willis about once a week through December 1979 with continued complaints of neck and back pain. Plaintiff returned to Dr. Dean in late December 1979 still complaining of wrist and back pain and also complaining of some numbness in her legs. X rays of the lumbar spine showed no definite abnormalities. She was instructed to return if she continued to have difficulties with her legs. Dr. Dean saw plaintiff again on January 21, 1980. She was still having neck and back pain and numbness in the left leg. Dr. Dean had her admitted to the hospital for a myelogram, but because of an insurance problem the myelogram was not done. Dr. Dean did not see plaintiff again. At the time he last saw her he was of the opinion she should have already been well.

In late December 1979, plaintiff was also suffering symptoms of a urinary tract disorder. She was hospitalized in Coushatta during the first week of January 1980 for musculoskeletal pain as well as for the urinary tract disorder. Most of the testing, examination and procedures completed during this hospital stay were directed toward the urinary tract disorder rather than plaintiff’s back problems. Dr. Turner, a neurologist, testified, in effect, that the urinary tract disorder could not be related to the accident.

In mid-November 1979 plaintiff began to see a psychiatrist, Dr. Williams, complaining that she had been having constant headaches since her automobile accident, had been restless at night with much trouble sleeping, and had suffered a loss of appetite. Plaintiff felt that she was unable to return to her job as a bookmobile driver and this contributed to her overall depression. On later visits to Dr. Williams plaintiff reported that she had frequent dreams of the automobile accident and continued to have problems with headaches, sleeplessness and lack of energy. Dr. Williams’ diagnosis was that plaintiff experienced a traumatic neurosis and depression as a result of the accident. He prescribed medication.

During these visits, which continued through April 1980, plaintiff complained to Dr. Williams of her neck and lower back pain and of some numbness in her left leg and also pain and numbness in her right wrist. Dr. Williams referred plaintiff to Dr. Long, a neurosurgeon, to check for a possible lumbar disc problem. After plaintiff was treated by Dr. Long, Dr. Williams on March 10 found that plaintiff’s mental status had greatly improved and that she had no signs of depression. When Dr. Williams next saw plaintiff on April 10 he found she was doing well with no symptoms of depression. He began withdrawing her from the medication. On May 5 she was doing excellently and was told she need not come back. Dr. Williams was of the opinion that she was disabled and unable to work due to pain from the time he first saw her until the March 10, 1980 visit. He examined plaintiff again shortly before trial and was still of the opinion she could work.

Plaintiff first saw Dr. Long on February 18, 1980, complaining of pain in her back and down her left leg. There was also some numbness in her left leg. Dr. Long felt that plaintiff’s headaches were caused by a flexion extension injury to the neck. He noted some tenderness in the suboceipi-tal area and some muscle spasms in the neck as well as in the low back region. Dr. Long ordered a myelogram and plaintiff was admitted to Doctors’ Hospital in Shreveport on February 24, 1980. The my-elogram disclosed a small defect on the right at the L5-S4 disc space. This was enigmatic because the leg pain and numbness were on the left. Dr. Long concluded that plaintiff had a disc problem in the lumbar area of her back, and cervical spon-dylosis aggravated by whiplash in the upper back and neck. Plaintiff was treated conservatively and was discharged from the hospital on March 1, 1980. Dr. Long next saw plaintiff on March 31, 1980. Plaintiff still had left leg pain although the pain in the low back and leg was somewhat improved. Muscle spasms were noted in her back. Dr. Long prescribed a lumbrosacral corset and referred plaintiff to a physical therapist to be fitted with a transcutaneous electrical nerve stimulator (TNS unit).

In June 1980, Dr. Long addressed himself to the carpal tunnel syndrome symptoms which plaintiff had been experiencing in her right wrist for several months and for which she had been wearing a wrist brace. A nerve conduction test was done by Dr. Brown, a neurologist, who found delayed nerve reactions in both wrists. On July 23 plaintiff was admitted to Doctors’ Hospital where Dr. Long performed carpal tunnel release surgery. Plaintiff was in the hospital a week. By the end of October, the carpal tunnel was well healed and she was free of symptoms in this regard.

Dr. Long was of the opinion that blunt, single trauma can cause carpal tunnel syndrome if the hand and fingers are hyperex-tended at the time of the trauma. He tended to believe plaintiff’s carpal tunnel syndrome was related to the accident, although he had not followed this matter until several months after the accident. Dr. Brown was of the opinion that blunt trauma is not one of the causes of carpal tunnel syndrome. His opinion that plaintiff’s condition was not related to the accident is supported by his finding of similar nerve reactions in both wrists. Dr. Dean testified that the contusion and pain plaintiff experienced initially in her wrist were not in the carpal tunnel area of her wrist.

Dr. Long continued to see plaintiff through January 1981 because of some continued back and leg pain. Plaintiff was instructed to continue wearing the corset or back brace and to continue use of the TNS unit for pain relief.

Dr. Long was of the opinion that plaintiff was disabled from working at all until April 1980. It was his opinion that at time of trial plaintiff could not engage in any heavy labor requiring bending, lifting, or stooping, but that a more sedentary job would not cause plaintiff too many problems. He felt that while plaintiff might be able to resume her work as operator of the parish bookmobile, she could not return to her job with Red River Parish Council on the Aging where she did heavy housework and lifting. Dr. Long was of the opinion plaintiff would not require disc surgery if she led a relatively sedentary life.

Plaintiff’s testimony, corroborated by others, indicates that since the accident she is not able to do her own housework or care for her garden and yard as she used to. As of the time of trial in February 1981, plaintiff had not returned to either of her jobs.

During all of this time, plaintiff continued to see her regular doctor, Dr. Willis, in connection with her complaints of back and neck pain. From his bills in the record, it appears he treated her with injections. Dr. Willis advised plaintiffs employer on November 5,1979 that plaintiff was able to go back to work. However, as noted, she continued to be seen and treated by him after that date.

Plaintiff argues that all of her problems mentioned resulted from the accident, and that she is disabled from working in any capacity. Plaintiff seeks recovery for medical expenses, property damage, loss of earnings, loss of earning capacity, and general damages.

We conclude from the evidence that plaintiff suffered a cervical whiplash injury and mild traumatic neuroses which disabled her through March 1980. Drs. Long and Williams did not think plaintiff could return to work until that time. She also suffered a lumbar disc injury which causes her pain and discomfort and places some limitations on her work and earning capacity. That the disc injury is related to the accident is established by Dr. Long’s unequivocal opinion and the fact that lumbar symptoms manifested themselves shortly after the accident, leading Dr. Dean to call for a myelogram while plaintiff was under his treatment. There is really no evidence contrary to Dr. Long’s opinion.

We further conclude that the carpal tunnel syndrome was not caused by the accident. The contusion of the wrist suffered in the accident was in an area other than the carpal tunnel area. Drs. Brown and Dean did not believe it was related to the accident. Dr. Long, who related it to the accident, did not see plaintiff until about five months after the accident, and, even then, did not address the wrist problem until several months later.

The urinary tract problem was clearly unrelated to the accident.

Plaintiff was 48 years old at the time of the accident. She worked 16-20 hours a week for the parish as operator of the parish bookmobile and 16-18 hours per week for the Red River Council on Aging as a Homemaker II, at near minimum wage. She was disabled from working at either job through March 1980 and is entitled to recover the wages lost to that time, less sick pay received from the parish, which loss we calculate to be $1,050.56. She is entitled to recover wages lost from the Council on Aging job from that time to date of trial in February 1981, which we calculate to be $4,095.

The evidence is that plaintiff is able to work at jobs of a more sedentary nature. The parish offered her such a position, doing filing and the like in the office. No expert opinion evidence of the present value of plaintiff’s loss of future wages or earning capacity was introduced, but it is clear that her earning capacity has been reduced as a result of the injuries received in the accident. Although the amount to which she is entitled to recover for loss of future earning capacity is necessarily somewhat speculative, we award $5,000 for this item of damages.

Plaintiff is entitled to recover the following medical expenses related to the accident:

Emergency room $ 30.00
Medical and Surgical Clinic, office visits and medication (Dr. Willis) 541.00
Huckaby Memorial Clinic (partial payment for 1/1/80-1/8/80 hospitalization and doctor’s fee) 140.00
Dr. Dean 140.00
Dr. Williams 590.00
Dr. Long (myelogram, $300, and office visits) 460.00
Doctors’ Hospital (2/23-3/1/80) 1,406.97
Doug Teitjen 604.00
Dr. Holton — Radiologist 78.00
Total $3,989.97
Property damage to plaintiff’s automobile is $547.46.
General damages are fixed at $25,000.

Recapitulating, plaintiff’s damages are as follows:

Medical expense $ 3,989.97
Loss of wages 5,145.56
Loss of future earning capacity 5,000.00
Property damage 547.46
General damages 25.000.00
Total $39,682.99

The judgment of the district court is reversed and set aside. Judgment is hereby rendered in favor of plaintiff, Annie Mae Jones, against defendants, Lemuel R. Hall and North American Van Lines, in solido, in the amount of $39,682.99, with legal interest thereon from date of judicial demand until paid, and all costs of this proceeding, including the cost of appeal.

Reversed and rendered.


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

text:
    Bipin R. AMIN, et ux., Plaintiffs-Appellees, v. Leon Pinkney HEAD, Jr., et ux. and James E. Townsend, et ux., Defendants-Appellants.
    No. 14949.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 1982.
    Rehearing Denied Sept. 24, 1982.

      Dimos, Brown, Erskine & Burkett by Donald R. Brown, Monroe, for defendants-appellants.
    Shotwell, Brown & Sperry by George Wear, Jr., Monroe, for plaintiffs-appellees.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this redhibition action, defendant sub-dividers of a residential subdivision appeal a judgment in favor of the purchasers of a residence and lot which was found susceptible of flooding. The judgment awarded an $8,650 reduction in the purchase price, $134 damages, and $3,500 attorney fees. Plaintiffs’ answer seeks to rescind the sale and to increase the awards for expenses and attorney fees. We amend to increase attorney fees and otherwise affirm.

In six assignments, defendants contend that the trial court erred in its findings that the house was susceptible to flooding, that this susceptibility was a nonapparent defect, that damages and attorney fees were owed, and in its determination of the reduction on a “cost of cure” basis and of the expert witness fee.

We find that the record in all respects supports the trial court and does not show that the trial court has abused its discretion.

SUMMARY OF FACTS

Defendants, Head and Townsend, created the subdivision in stages beginning in 1977. A natural drain existed across Lot 5 of Unit 1 of the subdivision. The subdividers altered somewhat the natural drain and provided a drainage system by using the streets in the area and constructed underground drains. In 1978, Head acquired for himself the subject lot and hired Townsend to construct a residence on the lot. Head moved into the home in January 1979. Defendants caused to be designed a 24" underground drain in an attempt to make this lot in a cul de sac suitable for residential purposes. This drain, with one 90° and two 45° turns in it, was found to be not as efficient as a straighter drain.

A few months after Head moved into the home, a relatively' heavy rain deposited large amounts of mud on his patio, carport, and driveway, and a small quantity of water on the floor of his kitchen-dining area. Head and Townsend then attempted to remedy this situation by opening a junction box in the drain and providing a grate through which ground water could drain into the system and by building on the rear of the lot a retaining wall of cross ties about two feet high. These plats show the relationship of the lot, house, and underground drain:

In November 1979 Head sold the house to the plaintiffs husband and wife without mentioning drainage or flooding problems. A few weeks later a heavy rain caused ground water to pour over the retaining wall and through plaintiffs’ carport. When plaintiffs complained, Head told them they would have to keep the grate unclogged and clear of debris. In May 1980, after plaintiffs had worked several hours at 15-30 minute intervals during a rainstorm to clear the grate and had retired to bed, ground water from the continuing rain again poured over the retaining wall and seeped under the rear door of the home into the kitchen-dining area. Plaintiffs then filed this action.

Before trial of this case, defendants and the public authorities caused to be installed in a neighboring public street a catch basin designed to alleviate some of the drainage problems. Notwithstanding this effort, ground water from a heavy rain again poured over the wall and left mud and debris on the patio and carport of plaintiffs’ home in October 1980. No water entered the home at this time.

Defendants’ contention that the house was not susceptible of flooding is without merit because the record establishes that the house will suffer some water invasion if the grate over the junction box that defendants installed in 1979 is not frequently cleared of debris during a rainstorm.

Defendants’ contention that it should have been apparent to the plaintiff husband, who is a civil engineer with a master’s degree, that the lot lies in a natural drain is without merit because at the time of the sale the defendants thought they had “cured” the situation by the junction box grate and retaining wall and it is obvious the house itself is of a higher elevation than the lot. When the house was constructed, even the defendants did not then believe it or the lot was susceptible to the inconvenience of flooding, notwithstanding that they had more “knowledge” from their observation and experience than did plaintiff when he purchased from defendants.

Head is responsible for attorney fees and damages under CC 2545 because he knew of the susceptibility of flooding and failed to disclose this to the purchasers. Townsend and Head created or salvaged the lot and made it suitable for financing as a residential site by use of the particular underground drainage system. In this sense, Head and Townsend “manufactured” this low lying lot into one that was merchantable for financing as a residential site. As manufacturers they are presumed to know the defects in the thing sold and are liable for attorney fees and damages. Harris v. Bardwell, 373 So.2d 777, 782 (La.App. 3d Cir. 1979). We need not speculate as defendants suggest in brief about results in many factual situations that may arise out of our adoption of the trial court’s finding that this lot was “manufactured”. This conclusion is strongly supported by the evidence and is not clearly wrong under the circumstances shown.

Head and Townsend sought to “cure” the drainage defect by putting the grate over the junction box and by constructing the retaining wall at the rear of the lot. Head testified that he did not tell the purchaser about drainage problems because he thought the problem he experienced had been solved. It was not error for the trial court to impliedly find that Head’s “thoughts” in this respect were not well founded because he apparently knew, and later told plaintiffs, that flooding would still occur if the junction box grate was not frequently cleared of debris. Compare Busenlener v. Peck, 316 So.2d 27 (La.App. 1st Cir. 1975).

We also find without merit defendants’ contention that the cost of cure suggested by an experienced and trained engineer is more plausible and factually supported than is the reduction in price based on factors including the cost of cure suggested by plaintiffs’ expert appraiser who is not an engineer. Defendants’ suggestion was to modify the drain box and to cut “swales” or slight ditches in plaintiffs’ yard. Plaintiffs’ suggestion was to build a retaining wall of concrete and to install an additional underground drain and drain box. The trial court has great discretion in determining what will reasonably compensate a plaintiff for his inconvenience. In this respect the trial court has made a factual finding that is supported by evidence and which we may not disturb without a finding of clear error. Additionally, we note that the cost of cure is relevant to the court’s determination to reduce the price rather than rescind, and to the amount of the reduction. We find no error and will not disturb these determinations.

Defendants also complain that the expert witness fee should be reduced from $300 to no more than $200. No abuse of discretion, however, has been shown. The expert appraiser performed the same function as did the appraiser in Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir. 1977), and consulted engineers and others in an attempt to determine a solution to the flooding problem.

Even though elements supporting rescission are present, CC 2543 affords discretion to the trial judge to reduce the price of the thing sold where the defect in the thing might be corrected. Boudreaux v. Riley Buick, Inc., 415 So.2d 970 (La.App. 2d Cir. 1982). We find no abuse of this discretion and decline to order a rescission of the sale and grant other relief plaintiffs seek in their answer to the appeal.

The attorney fees fixed by the lower court are not unreasonable and are supported by this record. To compensate plaintiffs’ attorney for the time and effort expended after the trial of this case, we amend the judgment to increase the award of attorney fees to $4,350.

For detailed reasons assigned by the trial court, which we adopt and here summarize and supplement, the judgment is amended to increase the award of attorney fees, and as amended, is AFFIRMED.

FRED W. JONES, Jr., Judge,

dissenting in part and concurring in part.

The majority opinion (as does the trial court opinion) seems to posit liability of both Townsend and Head on the premise that this controversy involves the sale of a defective lot, and then proceeds to find that the landowners-subdividers, as “manufacturers” of that lot, were presumed to know of its defect. I believe, to the contrary, that the defect consisted of the susceptibility of the house to flooding. After all, if the house had not been constructed on the lot, how would the latter have been defective? Viewed in this context, there is obviously no liability on the part of Townsend who sold his interest in the lot before the house was built upon it.

Even if the defect was in the lot, I do not agree that a landowner who subdivides his property becomes a manufacturer of the lots therein. The social policy underlying the jurisprudential rule that a manufacturer is presumed to know of the defects in his product is sound, because it affords the unwary consumer needed protection. Even though there is no privity of contract between the manufacturer and the claimant-consumer, the maker of the product is better able to bear this economic burden. Media Production Consultants v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (1972). It seems rather farfetched, however, to classify a landowner-subdivider as a manufacturer of lots simply because he has them platted out and, perhaps, serviced by streets and other improvements.

As cogently pointed out by counsel for defendants, the implications of this new holding are disturbing. Suppose, for example, the vendee of a subdivision lot builds his home on unstable soil and the foundation starts cracking. Will the subdivider, however remote in title, be liable to the homeowner as the manufacturer of the lot? Other variations of this maze we may be entering can be readily envisioned.

For these reasons, I respectfully dissent from the majority opinion insofar as it affirms the trial court judgment against the defendant Townsend.

On the other hand, because the record supports the conclusion that the defendant Head knew of the defect in the house which he sold to plaintiffs, I concur in the affirming of the trial court judgment as to that defendant.


author: KLIEBERT, Judge.

text:
    Linda Tell, Wife of/and Dr. Harold L. DAWLEY v. Veda Costello, Wife of/and Floyd A. SINCLAIR, Sinclair Realty Company, and Peter J. Spera, Jr.
    No. 5-76.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    Eugene M. McEachin, Jr., Curtis, Hyde, Mooney & McEachin, Metairie, for plaintiffs-appellants.
    Daniel R. Martiny, Lee, Martiny, Caracci & Bono, Metairie, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

Doctor and Mrs. Dawley, plaintiffs (purchaser), appealed devolutively from a judgment dismissing their claim against the defendants, Mr. and Mrs. Floyd Sinclair (seller), Sinclair Realty Company (broker), and Peter Spera, Jr. (agent), for damages alleged to have been caused by erroneous information conveyed to them as to the zoning classification of Lot 21, Square 70, Terrytown Subdivision.

In the trial court and here two theories are urged by the purchaser as the basis for their right to recover his out of pocket expenses plus a reduction in the purchase price, or the alleged difference between the value of the lot under a commercial zoning classification and its value as a residential lot. First, the buyer contends the agent’s conveyance of the erroneous information as to the zoning classification of the lot constituted a redhibitory defect and, hence, entitled him to a diminution of the purchase price. Second, he contends the erroneous information constitutes a misrepresentation in violation of a prohibitive statute, therefore, the violation coupled with the agent and/or broker’s failure to disclose the broker’s ownership of the lot gave him a statutory right to recover damages, or if not under the statute, then in tort for negligence or in equity as an unjust enrichment. The trial judge rejected both theories. We affirm.

At the time the agreement to purchase was entered into and at the time the sale was executed the owner of the lot was the sole owner and operator of Sinclair Realty Company. This real estate firm held an exclusive listing for the sale of the lot. The purchaser had informed the agent he intended to use the lot for commercial purposes. The agent and the broker readily admitted they informed the buyer the lot was zoned C-2 Commercial. Two years after the sale, the purchaser made an application for a permit to build on the lot and then discovered that only 10 feet of the lot was zoned C-2 Commercial with the remainder being zoned R-l Residential. When the broker-owner was informed of the error he offered to rescind the sale. At no time did the purchaser pray for or want a rescission of the sale.

The trial judge found the agent’s error as to the zoning classification was in good faith and hence concluded that although a good faith error as to a zoning classification may be grounds for a rescission of the sale, it does not constitute a redhibitory vice or defect. Under our jurisprudence, for redhibition to apply the vice or defect complained of must be such as to render the object useless or so inconvenient and imperfect that had the purchaser known of the vice or defect complained of it is presumed under the law the buyer would not have purchased the object LSA C.C. Art. 2520 et seq. The fact that the property is not zoned as the purchaser wanted it is not a defect or vice within the meaning of the Civil Code Articles on redhibition. Louviere v. Meteye, 260 So.2d 377 (La.App. 4th Cir. 1974). However, where the parties are laboring under a mistake or error as to the zoning classification, there may be the lack of mutual consent necessary to confect a valid agreement and hence grounds for a rescission of the sale under LSA C.C. Articles 1821 et seq. We hold, therefore, that the trial judge was correct in finding that under the facts of this case there may have been grounds for a rescission but there is no present vice or defect sufficient to support an action in redhibition.

In support of their theory for the recovery of damages the purchaser refers to R.S. 37:1454(A) and R.S. 37:1447 and from this argues the agent and/or broker misrepresented the zoning and were negligent in failing to determine the proper zoning and hence are liable to him in damages. The facts of the case, however, do not lead to the conclusion there was a misrepresentation. The agent and broker admitted repeatedly throughout the trial they knew the buyer intended to use the lot for commercial use and that they informed the buyer the lot was zoned C-2 Commercial. They were both under the mistaken belief the lot was in fact zoned C-2 Commercial. The record is barren of any evidence to show the agent or the broker-owner knew the lot was R-l Residential. As a matter of fact, there is evidence showing that at the time the broker-owner acquired the lot it had been represented to him by his vendor and his attorney that the lot was zoned C-2 Commercial. The ease in which an error in zoning classification can be made is readily demonstrated from the testimony of the independent professional appraisers who appraised the lot in question here for the purchaser’s financier. According to them, after examining the available maps and information in their office and in the zoning office, they concluded the property was zoned commercial. Therefore, we cannot say the trial judge erred in finding that the agent was laboring under a mistake of fact rather than engaging in a willful, known or negligent misrepresentation of the zoning classification at the time he informed the purchaser the lot was zoned for C-2 Commercial.

For the reasons stated, therefore, the judgment of the trial court is affirmed. Costs of appeal to be borne by the appellant.

AFFIRMED.

      . These were the provisions in effect as of the date the transaction in question here was entered into. Since that time these provisions have been amended and/or deleted by subsequent enactments of the legislature.


text:
    In the Matter of the Succession of Joseph Louis CAILLOUET v. B. J. CAILLOUET, Betty Eubanks, Edna Broussard and Marjorie Dobson.
    No. 5-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    Leo J. Berggreen, Baton Rouge, for defendants-appellants.
    A. J. Spedale, Spedale, Sanders & Pennington, Baton Rouge, for plaintiff-appel-lee.
    David L. Carriere, Pavy, Hebert & Carri-ere, P. C., Opelousas, for amicus curiae, Sherby K. Skrantz.
    Dale J. Petit, Hester, Curator for absentee heirs and appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

This is a suspensive appeal brought by four of the decedent’s heirs from the judgment of the trial court dismissing their opposition to the administrator’s petition to sell succession property at private sale. The issue presented on the appeal is whether the trial court erred in authorizing the administrator to proceed with the sale of property forming part of the mass of the succession, where some heirs are opposed to the sale and during the hearing on the opposition offer to purchase the property for a sum slightly greater than the offer sought to be accepted by the administrator. We believe he did not and accordingly affirm his decision.

Morris Joseph Caillouet, the duly qualified and acting administrator of the succession of Joseph Louis Caillouet, filed a petition for authority to sell for $32,350.00 the only asset of the succession, i.e., a thirty acre tract of land located in St. Landry Parish. A realtor’s report, showing the property’s value as $32,200.00, was filed with the administrator’s report. This was the same as the value previously reflected for the property in the descriptive list filed by the administrator. Also attached to the petition was an agreement under which Sherby J. Skrantz (buyer) would acquire the property, subject to a one-half interest (Vi) mineral reservation for $32,350.00 cash. One Hundred Fifty Dollars ($150.00) of this sum was for the payment of the appraiser’s fee. The administrator had accepted the offer subject to his ability to obtain court approval to make the sale.

The administrator’s petition for authority to sell alleged it was to the best interest of the succession for the property to be sold because debts of the succession had to be paid and the sales price was fair and reasonable. B. J. Caillouet, Betty Eubanks, Edna Broussard and Marjorie Dobson (hereafter opposing heirs) filed an opposition to the sale alleging that many heirs were opposed to the sale; the price offered was unreasonably low, and they were prepared to offer a higher price for the sale.

At the opposition hearing evidence was introduced indicating there had been several meetings of family members to discuss the sale of the property. Of those members attending the family meeting, there was at least one member of each branch of the family, however, the evidence is in conflict as to whether they were there as a representative of their branch of the family or whether they had a duty or obligation to inform other family members of the decision reached at the meeting. The opposing heirs together had an undivided 13/264th interest in the property and orally offered during the hearing to acquire the property for $33,000.00 cash, with a one-half mineral interest reservation. One of the opposing heirs testified that he was never informed of the family meetings. Another stated that her understanding of the selling approval granted at the family meeting was for a sale for $33,000.00 with a 100% reservation of the minerals. There was some testimony from the opposing heirs indicating a realtor had some three years previously appraised the property at $37,000.00, but neither this nor any other appraisal was submitted in evidence by the opposing heirs.

By adherence to the procedures enumerated in CCP Article 3282, the administrator can obtain 'authority from the court to sell property belonging to the mass of the succession “_in order to pay debts and legacies, or for any other purpose, when authorized by the court_” CCP Article 3261. Additionally, he can enter into an agreement to sell the property provided the effectiveness of the agreement is suspended pending its authorization by the court. CCP Article 3286.

The appellants apparently agreed the purpose of the proposed sale was valid for they made no attack on same, preferring instead to argue that the trial judge could not authorize the succession representative to proceed with the sale because heirs were offering to purchase the property for a larger amount. The trial judge concluded the proposed sale was to the better interest of the succession because (1) the buyer might institute suit against the succession due to the succession’s failure to comply with the agreement to purchase, and (2) the succession would benefit financially by accepting the sale now rather than the risk of the heirs’ offer and the reincurrence of the cost of advertisement and reapplication for authority with the possibility of future opposition with minimal increases in the price offered.

In the trial court and here, the opposing heirs point to the Succession of Hausser, 320 So.2d 614 (La.App. 4th Cir. 1975) in support of their argument. Their reliance on Hausser, however, is misguided because the facts there are different from those involved here. In Hausser, only twenty (20) days had expired since the time the property was offered for sale and the first offer of $100,000.00 was received. Also the second offer of $110,000.00 was received two weeks after the first. Whereas here, the second offer was only $650.00 more than the first, came orally during the hearing on the opposition, and after the funds had been expended to seek approval of the first offer which had been sought and negotiated for some time. Further, in Hausser, all of the legatees who were to share in the proceeds from the sale opposed same; whereas here, four heirs having only a 13/264th interest filed opposition. Under the facts involved here, we agree with the trial judge’s conclusion it was for the better interest of the heirs for the court to authorize the administrator to proceed with the proposed sale.

Accordingly, the judgment of the trial court is affirmed. All costs of appeal to be borne by the appellant.

AFFIRMED.

      . The appellant erroneously took the position in his brief that the suspensive condition was not contained in the agreement.


author: CURRAULT, Judge.

text:
    Mrs. Ardene Deshotel GABRIEL v. Anthony GABRIEL.
    No. 5-77.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    Edmond R. Eberle, New Orleans, for plaintiff-appellee.
    Floyd J. Reed, Reed & Reed, New Orleans, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

Plaintiff-appellee, Ardene Deshotel Gabriel, and the defendant-appellant, Anthony Gabriel, were married in June of 1951 and were divorced in March of 1978. Pursuant to the divorce, plaintiff was awarded permanent alimony at the rate of seven hundred dollars ($700.00) per month and child support at the rate of one hundred dollars ($100.00) per month.

Several months later, in August of 1978, the only minor child for which support was awarded reached the age of majority. Defendant filed a rule to “eliminate” child support and decrease alimony. Plaintiff filed to increase alimony. A consent judgment was rendered October 23, 1978, terminating child support, but increasing permanent alimony to a rate of eight hundred dollars ($800.00) per month.

Subsequently, in August of 1980, defendant filed a rule to terminate permanent alimony in response to which plaintiff filed to increase. After trial on the merits on April 18, 1981, Honorable Judge Fred S. Bowes, Division “E”, 24th Judicial District Court, dismissed both rules. It is from this adjudication defendant now devolutively appeals.

Defendant argues the trial court erred when it refused to terminate the permanent alimony of the wife where it appeared she was capable of gainful employment. Alternatively, defendant argues, the trial court erred when it failed to order the wife to seek employment or, alternatively, seek education or training as would fit her for gainful employment by a certain date in the future; and further erred by failing to terminate the alimony by a certain date in the future.

It is a well settled rule that a consent judgment of alimony is not subject to modification unless a change of circumstances supporting the modification is proved. Howell v. Howell, 391 So.2d 1304, 1306, (La.App. 4th Cir. 1980); Bernhardt v. Bernhardt, 283 So.2d 226, 229 (La.1973). The change in circumstances must occur between the date of the consent judgment and the date of the rule for modification of alimony. Howell, supra.

In reviewing the record, this court can find no error in the district court’s determination that neither party proved a change of circumstances necessitating a modification of the consent judgment. The record reveals that testimony adduced at trial demonstrated minimum change of circumstances certainly far short of the change required to modify an award of alimony. Plaintiff’s testimony gave no indication that her situation had worsened since the date of the consent judgment. Although she stated she was under the care of a physician for monthly injections as a result of breast surgery, he was not subpoenaed to testify in regard to her physical condition. Additionally, the plaintiff testified her present condition of health was less than perfect, in that she was taking medication for nerves, high blood pressure and an active ulcer. She introduced no supportive evidence or expert testimony whatsoever to substantiate her testimony.

Defendant also failed to establish that he was entitled to a reduction by a showing of changed circumstances. Defendant neglected to demonstrate that the plaintiff was able to work or was susceptible to training for work. Additionally, defendant did not prove that his situation had changed such as to warrant a reduction.

This court is conscious of the trial court’s great discretion in fixing amounts of alimony and such awards should not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Graff v. Graff, 407 So.2d 70, 72 (La.App.1981). Accordingly, the trial judge has much discretion in evaluating the weight of evidence, which is resolved primarily on the basis of the credibility of witnesses, such that the factual findings of the trial judge will be given substantial weight on review. Graff, supra.

After reviewing the record in this case, we find the trial court did not abuse its discretion. Since we find no reason to disturb the lower court’s finding of fact, the judgment appealed is accordingly affirmed, cost of appeal to be borne by both parties.

AFFIRMED.


author: STOKER, Judge.

text:
    James D. DESHOTELS, Plaintiff-Appellant, v. Janice M. DESHOTELS, Defendant-Appellee.
    No. 82-413.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.

      Tate, Tate & Tate, Paul Tate, Sr., Mam-ou, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Orelousas, for defendant-appel-lee.
    Before FORET, STOKER and YELVER-TON, JJ.
   MOTION TO DISMISS

STOKER, Judge.

The defendant-appellee, Janice M. Desho-tels, moves to dismiss the appeal of plaintiff-appellant, James D. Deshotels, on the grounds that the judgment appealed from is a non-appealable interlocutory judgment.

Plaintiff-appellant filed suit for partition by licitation, praying that an inventory of the property belonging to the community be taken, and that the property be sold at public auction.

After the auction, at which plaintiff-appellant purchased all property, the auctioneer refused to sign the proces verbal and filed a rule for resale at public auction on the grounds that plaintiff-appellant had not paid the purchase price.

Thereafter, plaintiff-appellant filed a rule directed to defendant-appellee to show cause why the joint auctioneers should not be ordered to complete and execute a proces verbal. This rule and the amended rule were dismissed by the trial judge. The judgment dismissing the rule was appealed by plaintiff-appellant.

Defendant-appellee filed a motion to dismiss this appeal contending the judgment rendered below is not a final judgment, but merely an interlocutory decree which is not appealable absent a showing of irreparable injury. We disagree and deny the motion.

Louisiana Code of Civil Procedure Article 2083 states:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default ...”
Article 1841 reads:
“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.”
“A judgment that determines in whole or in part is a final judgment.”

In the case of Hawthorne v. Humble Oil and Refining Co., 200 So.2d 52 (La.App. 1st Cir.) the court considered the question of whether or not the dismissal of a rule to show cause was an appealable judgment. The court found, as we find here, that although the judgment complained of could not affect the outcome of the case on the merits, it did determine finally the rights of the parties.

We find that the dismissal of a rule to show cause is a final appealable judgment. Accordingly, defendant-appellee’s motion to dismiss is denied.

MOTION DENIED.


author: FORET, Judge.

text:
    Kenneth Ray ORTEGO d/b/a Ray’s Home Improvements, Plaintiff-Appellee, v. Albert DURAND, Jr., Defendant-Appellant.
    No. 82-36.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Jacques, Rester & Townsend, Jeff E. Townsend, Jr., Lake Charles, for defendant-appellant.
    Payton R. Covington, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

Kenneth Ray Ortego, d/b/a Ray’s Home Improvements (plaintiff) brought this action to recover the sum of $3,571 from defendant, Albert Durand, Jr. Plaintiff alleged that defendant owed him this amount under the terms of a contract entered into by the parties for certain remodeling and repair work performed on defendant’s home by him. Plaintiff also sought to have a labor and materialman’s lien recognized against defendant’s property.

Defendant answered, denying the allegations of plaintiff’s petition. Defendant also brought a reconventional demand against plaintiff seeking dismissal of the main demand and to recover the sum of $4,180 from plaintiff, which he alleged to be the cost of correcting plaintiff’s “poor and substandard” work on his home.

The trial court, after trial, found that the work performed by plaintiff “.. . was inadequate and of poor workmanship and that defendant is entitled to a credit of $800 against the balance of $8,571 claimed by the plaintiff.” The trial court rendered judgment in favor of plaintiff and against defendant, awarding plaintiff the sum of $2,771, plus legal interest from date of judicial demand. The trial court further recognized the lien and privilege of plaintiff.

Defendant appeals from the trial court’s judgment and raises the following issues:

(1) Whether the trial court committed manifest error in allowing him a credit of only $800 against the amount owed by him to plaintiff; and
(2) Whether this matter should be remanded to allow the parties to adduce additional evidence regarding the amount of the credit to which defendant is entitled.

FACTS

There is no serious dispute regarding the facts of this case. Defendant and plaintiff entered into a contract in July of 1980, wherein plaintiff agreed to perform certain remodeling and repair work on defendant’s home, which had been damaged in a flood. Defendant paid plaintiff $6,000 for the work performed, but refused to pay the remainder of the amount owed because he was unsatisfied with the work done by plaintiff. The parties stipulated that defendant owed plaintiff a total of $9,537.01 for the work performed, less the $6,000 already paid plaintiff and any credit which the trial court might find defendant entitled to, if it found the work performed by plaintiff to be inadequate.

AMOUNT OF DEFENDANT’S CREDIT

Defendant contends that the trial court committed manifest error in awarding him a credit of only $800 against the amount owed by him to plaintiff. He correctly notes that the trial court did find plaintiff’s work to be inadequate. He argues there is no evidence in the record on which the trial court could have based its finding that he was entitled to a credit of $800.

The record shows that plaintiff testified that he had agreed to replace the base cabinets located in the kitchen of defendant’s home, among other things. This he did. It wasn’t until a week or a week-and-a-half after he finished the job that he first was informed by defendant that the work he had done in replacing those cabinets was unsatisfactory. Plaintiff was asked to give an estimate of what proportion of his bill was allocated to the replacement of the base cabinets. He guessed that it was probably somewhere in the area of $800 for labor and materials. He stated that this figure did not include any painting of the base cabinets, nor did it include the Formica top he installed on them.

Defendant called Oran Richard as an expert witness, and he was accepted by the court as such in the field of cabinet work pursuant to a stipulation of the parties. He stated that plaintiff had failed to properly perform the work he had contracted to do, including the replacement of the base cabinets. However, he was unable to give an estimate as to the cost of repairing or correcting the work done by plaintiff. He explained that, in all probability, the only way to correct plaintiff’s work would be to replace the base cabinets. Further, the top cabinets would have to be replaced since it would be almost impossible to match the base cabinets with the top cabinets. Richard was asked, under direct examination by defendant’s counsel, if he would estimate what it would cost to simply repair the base cabinets, rather than replacing all of the cabinets as he proposed to do. Richard refused to answer that question because he didn’t believe the job could be done properly in that manner. This was the only evidence introduced by defendant in support of his claim for a credit against the amount he owed to plaintiff.

It is an elementary rule of law that one who asserts a fact must carry the burden of proving the same by a preponderance of the evidence. Barnes v. Park Place Homes, Inc., 398 So.2d 1196 (La.App. 4 Cir. 1981); Southern Pacific Transportation Co. v. National Molasses Co., 396 So.2d 451 (La.App. 4 Cir. 1981); Meyer v. State, Department of Public Safety License Control and Driver Improvement Division, 312 So.2d 289 (La.1975). Proof by a preponderance of the evidence simply means taking the evidence as a whole, such proof shows that fact or cause sought to be proved is more probable than not. Barnes v. Park Place Homes, Inc., supra; Southern Pacific Transportation Co. v. National Molasses Co., supra; Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971).

We find that defendant has failed to prove that he was entitled to a credit of more than $800 and that the trial court’s award to him of thát amount is not clearly wrong.

The defendant-appellant argues strenuously that in the interest of justice we must remand this case for further proceedings. Justice does not require that an appellate court remand a case to permit additional evidence simply because a claimant failed to prove his claim at trial. Justice is satisfied when a party litigant, so desiring, has his day in court. Defendant-appellant, in this case, has had his day in court. The issue of defective cabinets was the sole issue in the case and defendant-appellant had ample opportunity to produce evidence in support of his claim. The trial judge had an opportunity to grant a motion for new trial and hear additional evidence if he felt it was necessary, but he declined to do so. The onus was upon defendant-appellant to know what his expert witness was going to testify to, before trial, and his failure to ascertain that fact before trial and possibly obtain other testimony to support his contention is not the fault of the plaintiff-appellee, or of the trial court, or of this Court.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    FINANCEAMERICA CORPORATION, Plaintiff-Appellee, v. Larry THIBODEAUX and Lana Thibodeaux, d/b/a Superior Boat Sales, Defendants-Appellants.
    No. 82-41.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.

      Harold L. Savoie and Charles N. Wooten, Ltd. by Dan Keefe, Lafayette, for defendants-appellants.
    J. Lomax Jordan, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

This is an action to enforce an express warranty contained in an act of assignment of a promissory note and chattel mortgage. Garry Dunn, third party defendant and petitioner in reconvention, purchased a used boat and out-board motor and a trailer in May of 1979 from Larry and Lana Thibo-deaux, defendants, doing business as Superior Boat Sales. The trial court granted judgment in favor of plaintiff, FinanceAm-erica Corporation but only against defendant-appellant, Larry Thibodeaux, d/b/a Superior Boat Sales. Garry Dunn executed a promissory note and chattel mortgage on the above described property which was assigned to FinanceAmerica, plaintiff. In the written act of assignment, Superior Boat Sales warranted to FinanceAmerica that the “... chattel mortgage is genuine and in all respects what it purports to be ...” and “... that all statements and facts therein are true ... ”. The assignment of mortgage also contains this statement:

“The undersigned makes said warranties for the purpose of inducing assignee to purchase the said chattel mortgage and the note referred to therein; and if any such warranty shall be untrue, the undersigned shall buy from Assignee upon demand said note and chattel mortgage and will pay therefor not less than the amount owed plus any and all costs and expenses paid or incurred by Assignee in respect thereto ... ”.

Garry Dunn subsequently discovered a discrepancy between the serial numbers on the boat and the motor and the numbers listed on the promissory note paraphed to the chattel mortgage. The serial numbers on the boat and motor indicated that the boat was a 1974 model and the engine was a 1975 model. However, the erroneous serial numbers for these items as written on the promissory note indicated that both the boat and motor were built in 1977.

Garry Dunn tried to sell the boat because of his inability to meet the payments, but the potential buyer turned down the offer when the discrepancy in the serial numbers was discovered. Dunn then notified Finan-ceAmerica of the problem. FinanceAmeri-ca in turn contacted Thibodeaux and demanded that Superior Boat Sales buy the note back under its warranty. Larry Thi-bodeaux apparently agreed to repurchase the note at first, and then later refused after the boat was destroyed in a fire and Dunn declared bankruptcy. FinanceAmeri-ca instituted this suit to force the defendants to honor the warranty. The trial court rendered judgment in favor of FinanceAm-erica for $3,932.26 with legal interest from the date of judicial demand against Larry Thibodeaux, d/b/a Superior Boat Sales.

The judgment in favor of Finan-ceAmerica Corporation did not run against Lana Thibodeaux. Larry and Lana Thibo-deaux made Garry Dunn a third party defendant. Garry Dunn reconvened against them. Apparently the trial court did not act on these claims, but neither of these parties appealed from this rejection of their incidental demands. They are not mentioned in the trial court’s judgment and are therefore considered rejected. Succession of Kelly v. Schauff, 323 So.2d 243 (La.App. 1st Cir. 1975) and Nicholson v. Holloway Planting Co., 216 So.2d 562 (La.App. 1st Cir. 1968), affirmed, 255 La. 1, 229 So.2d 679 (1969).

Defendants assign two errors allegedly committed by the trial court:

1) The trial court erred in granting judgment against Larry Thibodeaux without requiring that FinanceAmerica attempt to seize the mortgaged items or that Finan-ceAmerica show that they sustained a loss as a result of the incorrect figures on the promissory note.

2) The trial court erred in allowing the introduction into evidence of a deposition taken from Garry Dunn without the presence of the defendants’ attorney.

The trial court rejected defendants’ first argument and found that FinanceAm-erica bargained for a chattel mortgage which could be enforced through executory proceedings. The discrepancy in the serial numbers on the promissory note makes the chattel mortgage unenforceable by executo-ry process. Furthermore, the erroneous serial numbers on the note are violative of the warranty made by defendants that all statements and facts in the documents are true. The violation of the warranty alone triggers the contractual right of Finan-ceAmerica to demand that defendants repurchase the note.

We agree with the trial court that the obligation of defendants to repurchase the note is contractual. The contract does not require that FinanceAmerica attempt to enforce the chattel mortgage despite the faulty description of the mortgaged property. Furthermore, FinanceAmerica need not under the contract show any particular loss as a result of the incorrect statements of facts in the promissory note. FinanceAm-erica need only show that all the statements made on the chattel mortgage were not true. Adequate testimony was presented at trial to support the trial court’s finding that the serial numbers on the chattel mortgage were incorrect and, furthermore, that this error affected the validity of the mortgage. Thus, FinanceAmerica is entitled to enforce the contractual remedy provided for in the warranty provisions of the act of assignment of the mortgage. There is no requirement in the act of assignment that Finan-ceAmerica must attempt to execute the mortgage or prove loss before it can enforce its right to rescind the sale of the mortgage. Defendants’ first assignment of error is without merit.

Defendants’ second assignment of error, that the trial court erred in admitting into evidence the deposition of Garry Dunn, is likewise without merit. Defendants’ attorney was properly notified of the time and place of the taking of the deposition. By his own admission he simply chose not to attend the deposition. The notice satisfied the requirements of LSA-C.C.P. arts. 1430 and 1438 for the proper taking of depositions. Furthermore, the deposition was properly introduced into evidence as the deponent, Garry Dunn, was out of state at the time of the trial. See LSA-C.C.P. art. 1450(3)(b). Finally, defendants do not state what harm was caused by the introduction into evidence of the deposition. We find that the outcome of this case is not affected by the introduction of the deposition. Therefore, we find that the trial court properly received the deposition of Garry Dunn into evidence; and that, even if the trial court erred in receiving this evidence, the error was harmless.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendant-appellant Larry Thibodeaux, d/b/a Superior Boat Sales.

AFFIRMED.


text:
    Clebert LEVIER, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, STATE OF LOUISIANA, Defendant-Appellant.
    No. 82-119.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.
    Wayne R. Crouch, Assoc. Gen. Counsel, Baton Rouge, for defendant-appellant.
    Guillory, McGee, Mayeux & Fontenot by Donald Mayeux, Eunice, for plaintiff-appel-lee.
    Before CULPEPPER, FORET and STOKER, JJ.
   FORET, Judge.

The Department of Public Safety, State of Louisiana (defendant), appeals from a judgment rendered by the trial court granting Clebert Levier (plaintiff) a restricted driver’s license. We reverse.

LSA-R.S. 32:415.1 provides, in pertinent part, that:

“§ 415.1 Economic hardship appeal of driver’s license suspension
A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family. The restrictions of said license shall be determined by the court and shall include the following:” (Emphasis ours.)

Defendant argues that it was served with citation and service of process in this matter on January 29, 1982, the same day on which the hearing on plaintiff’s motion for a restricted driver’s license was held. Thus, it was not given ten days written notice prior to the date set by the trial court for a contradictory hearing upon plaintiff’s motion as required by LSA-R.S. 32:415.1.

The record contains no indication that the provisions of LSA-R.S. 32:415.1 were complied with as the sheriff’s return showing service of citation and service of process upon defendant is nowhere therein to be found.

The Department of Public Safety argues principally lack of notice in accordance with the statute. However, we also note that the record does not contain a petition filed by petitioner for a restricted driver’s license. The statute states that,

“... said person ... shall have a right to file a petition in the district court”

requesting a restricted driver’s license for hardship reasons. Nowhere in the record do we find a petition filed by the plaintiff-appellee. Obviously, for this reason also, the procedure outlined in the statute was not complied with.

For the above and foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings in accordance with law.

All costs of this appeal, and in the trial court, are assessed against plaintiff-appel-lee.

REVERSED AND REMANDED.

      . Plaintiff filed a document as follows:
      “MOTION AND ORDER FOR RESTRICTED DRIVERS’ LICENSE
      On motion of CLEBERT LEVIER, Plaintiff in the above matter through his attorney, Donald L. Mayeux, and upon suggesting to the court that his drivers’ license was suspended on August 31,1981 and the notice of suspension says that he may be eligible for a restricted drivers’ license, and considering that he does need a restricted license to work and provide for his family and seek medical care when needed, and considering the desires that the Department of Public Safety be served with a copy of this Motion and Order requesting a restricted license and that a hearing be scheduled for such:
      IT IS ORDERED that the Department of Public Safety of Baton Rouge, Louisiana show cause on the 29th day of January, 1982, why Clebert Levier should not be granted a restricted drivers’ license in accordance with the law.
      Opelousas, Louisiana, this 15 day of January, 1982.
      /s/H. G. Paw Judge
      Motion submitted by:
      /s/Maveux Donald L. Mayeux Attorney for Clebert Levier”


text:
    Myrtle Faye ROYLE, Plaintiff-Appellee, v. CASUALTY RECIPROCAL EXCHANGE, et al. State of Louisiana, Department of Transportation & Development, Defendant-Appellant.
    No. 82-129.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.

      John W. King, Baton Rouge, for defendant-appellant.
    John L. Van Norman, III, Lake Charles, for plaintiff-appellee.
    Logan L. Nichols, Jennings, Onebane & Associates, Dennis Doise, Lafayette, Mar-cantel & Marcantel, Bernard Marcantel, Jennings, Bernard, Micholet & Cassisa, Jerry L. Saporito and B. Frank Davis, Metair-ie, for defendants-appellees.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

This case is one of three cases consolidated in this appeal. We render separate decisions in the other two cases on this date.

FACTS AND ISSUES

On the day these cases were scheduled for trial the trial judge continued the case on its own motion and dismissed the jury venire pool. The trial court did so because the regular trial counsel for one of the defendants was not in court when the cases were called for trial. The defendant in question was represented by a substitute counsel who was not familiar with the cases. This defendant, the State of Louisiana, Department of Transportation and Development (Office of Highways), is appealing from the imposition of sanctions upon it in the form of assessing the State with certain personal expenses of other litigants incurred in coming to trial and court costs incurred such as jurors’ fees, the cost of jury summons and the cost of issuing subpoenas to witnesses. The personal expenses of the other litigants consisted of costs incurred by their attorneys as personal expenses in travel and payment of fees of expert witnesses for one day.

The question posed in this appeal is whether the trial court may impose “sanctions”, even if only court costs, and, if so, whether a trial court may assess such costs in the mid-course of litigation. As argued in brief by counsel the justification of the trial court’s action, or lack of justification, appears to be the only subject of the treatment. We do not reach the question of justification. We conclude that the trial court lacked authority to impose the so-called sanctions. Even if the assessment of the State with the court costs in question should be deemed justified, the court lacked authority to do so prior to the completion of the litigation in the trial court. For these reasons we reverse. In so doing we leave open the question of the appropriateness of the assessment of any costs to the State.

MOTIONS FOR SANCTIONS

After the ordering of the continuance, Toyota Motor Sales Company, Ltd., one of several defendants, and plaintiffs Myrtle Faye Royle and Terrance Keith Royle filed separate written pleadings styled “MOTIONS FOR SANCTIONS”. The motions contained similar allegations. Paragraphs four and five of the separate motions filed the Royles are identical and read in part as follows:

4.
“The attorney heretofore representing a defendant herein, The Louisiana Department of Transportation and Development, failed to appear in the 31st Judicial District Court on the scheduled trial date, thereby causing the trial scheduled for October 19, 1981, to be continued.
5.
“The failure of the Louisiana Department of Transportation and Development to assign an attorney adequately prepared for trial to the 31st Judicial District Court on the scheduled trial date caused Myrtle Faye Royle and Terrance Keith Royle to incur unnecessary costs and expenses in this litigation, including the following ...”

The Toyota motion simply charged that the attorney for the State, naming the regular attorney by name, did not appear for trial on October 19, 1981, thus causing the jury trial to be continued.

All the motions leave the impression that no counsel for the State was present in court when the cases were called for trial on October 19, 1981. This, of course, was not true. The State did have counsel present.

The trial court fixed the motions for sanctions for hearing on December 17,1981. On that date after the hearing the trial court granted the motions for sanctions and assessed the costs in question to the State and gave a personal judgment to the litigants for their personal expenses.

In its motions Toyota asked for the sum of $1,432.76 to be paid to itself to cover the cost of issuing subpoenas for the October 19,1981, trial and certain personal expenses of movers’ attorneys consisting of travel expenses including one night’s lodging and attorney’s fees. Toyota also moved that the trial court assess the sum of $633.49 to the State as costs consisting of the amount of $106.35 incurred in issuing jury summons and the amount of $527.14 to cover the fees of the jurors. Additionally, Toyota asked that the State be required to pay the court cost and attorney’s fees incurred in bringing the motions for sanctions.

The Royles brought joint motions covering similar demands. The amounts asked for subpoenas and personal expenses was $480.46. They asked that the $633.49 in jury costs mentioned above be assessed to the State.

The trial court granted the demands stated in the motions except for the attorney fees for bringing the motions which Toyota had requested. The appeal in this case is from these judgments.

DID THE TRIAL COURT HAVE AUTHORITY TO IMPOSE SANCTIONS OR COURT COSTS?

One of the briefs filed on behalf of appel-lees states that as of the date of the filing of the brief the plaintiffs had not had their day in court. The records in the cases before us do not indicate that the trial has ever been conducted.

Counsel for appellees urge that the court’s action, i.e., its judgment assessing costs and giving movers judgment for personal expenses, was authorized by LSA-C. C.P. art. 191 and by LSA-R.S. 13:5112.

Article 191 of the Code of Civil Procedure reads as follows:

“Art. 191. Inherent judicial power
“A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”
LSA-R.S. 13:5112 provides:
§ 5112. Suits against the state; court costs
“A. In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may award in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, such court costs under R.S. 13:4588 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.
“B. In accordance with Section 10 of Article XII of the Constitution neither the state nor any department, board, commission, agency, or political subdivision thereof shall be required to pay court costs until the judgment rendered against the state, department, board, commission, agency, or political subdivision shall become final and definitive under the provisions of Articles 2166 and 2167 of the Code of Civil Procedure or otherwise non-appealable or nonreviewable beyond the delays set by law for same and the funds have been appropriated therefor in specific dollar amount.
“C. This law shall not apply to, nor shall the Office of Employment Security or the administrator be cast for any court costs in, any judicial review proceeding under the provisions of R.S. 23:1634.” Added by Acts 1978, No. 467, § 1. Amended by Acts 1979, No. 530, § 1.

Article 1920 of the Code of Civil Procedure provides:

Art. 1920. Costs; parties liable; procedure for taxing
“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

Article 2164 of the Code of Civil Procedure provides:

Art. 2164. Scope of appeal and action to be taken; costs
“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

We have been unable to find any authority for the imposition of sanctions as such which are sought in this case. We do not feel that LSA-C.C.P. art. 191 may be so broadly construed as to permit a court to require one party to pay another party its personal expenses. Attorney's fees, of course, may not be recovered unless such are specifically authorized by statute.

LSA-R.S. 13:5112 applies to court costs only. Our reading of that statute convinces us that the assessment of court costs, if any are assessed to the State, cannot be made until the litigation is concluded at the trial level. The costs should be assessed or apportioned at the time judgment is rendered or through a rule to show cause. LSA-C.C.P. art. 1920. We regard the imposition of costs on a piece meal basis at various stages of the litigation as unauthorized.

Therefore, for the foregoing reasons the judgments appealed from in this case are reversed and the case is remanded to the trial court for further proceedings consistent with the expressions stated in this opinion. We reserve to the trial court its right to consider the appropriate assessment of costs at the conclusion of the trial under LSA-C.C.P. art. 1920. We express no opinion, however, as to the justification or appropriateness of assessing the costs of the aborted jury trial to the State resulting from the continuance of the case on the court’s own motion.

The costs of this appeal are assessed in equal portions to movers Myrtle Faye Royle, Terrance Keith Royle and Toyota Motor Sales Limited.

REVERSED AND REMANDED.

      . The, other two cases consolidated in this appeal are Terrance Keith Royle v. Casualty Reciprocal Exchange, et al., 419 So.2d 551, docket number 82-130; and Jean C. Ryder v. Toyota Motor Sales Limited, et al., 419 So.2d 551, docket number 82-131.