author: DENNIS, Justice. MARCUS, Justice

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Gordon BITTERWOLF.
    No. 81-C-1646.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied July 2, 1982.

      Bryan Miller, Johnnie E. Branch, Jr., William W. Irwin, Jr., Bernard L. Malone, Jr., Richard N. Burtt, Harvey Lee Hall, Baton Rouge, for plaintiff-applicant.
    Clint L. Pierson, Jr., of Pierson & Buras, Covington, for defendant-respondent.
   DENNIS, Justice.

We granted writs in this “quick taking” expropriation suit to determine whether the rule, that compensation for property taken is to be measured without considering any change in value caused by the proposed improvement for which the property is taken, is applicable if the expropriatee purchased the property, in an arms-length transaction, after the value of the property had already been reduced by the prospect of the expropriation action.

The fact that a public improvement has been proposed may cause a change in property values in the neighborhood through which it will pass. Land values may rise or fall before any property is taken if the projected public work is perceived as beneficial or injurious to its surroundings. See, 4 Nichols on Eminent Domain, § 12.3151 (3rd ed. 1981). This court has long held, in accord with civil code precepts designed to prevent overestimation of an owner’s true loss, that the valuation of property expropriated must be reduced by any increase caused by the fact that the improvement was proposed. The “quick taking” statute was amended effective January 1, 1975 to prevent underestimation, as well as overestimation, by providing that the measure of compensation for property expropriated for highway purposes shall be determined “without considering any change in value caused by the proposed improvement for which the property is taken.” La.R.S. 48:453(A) (Supp.1975) [emphasis added]

The question presented by this case is whether the quick taking statute affords a property owner a right to recover, in addition to the value of his property taken, compensation for the depreciation in its value caused by the proposed project before he acquired the property. The trial court and court of appeal, applying La.R.S. 48:453(A) in isolation from constitutional and other statutory precepts, approved the award of such compensation. We reverse. An owner cannot recover more than compensation to the full extent of his loss for property taken or damaged by the state. Although the constitutional right to property does not prohibit the state from compensating an owner for more than the full extent of his loss, it has never been the aim of our imple-mental legislative and jurisprudential precepts to require anything more than just compensation for the owner’s loss. La.R.S. 48:453, which was amended to incorporate these precepts and the constitutional principle of just compensation, is designed to compensate an owner only to the full extent of his loss.

Statement of Facts

The State of Louisiana, through the Department of Highways instituted this suit to expropriate a tract of land in St. Tammany Parish fronting on U. S. Highway 190 from the defendant, Gordon J. Bitterwolf. The land was needed as part of a State and Federal project to widen, improve and surface State Route La-U.S. 190 as a controlled access highway.

The record reveals that in 1968 the state of Louisiana made an announcement that La-U.S. 190 and the North Causeway approach from 1-12 to Lake Pontchartrain Causeway would be a controlled access highway. Service roads would be erected on the property fronting U.S. 190 and only two interchanges were contemplated in the immediate area. The effect of this announcement resulted in depressing property values south of the interstate.

Mr. Gordon Bitterwolf bought a 1.34 acre tract of land (consisting of 57,717 square feet) located within the area of depressed property values, on March 10, 1973, from Edward A. Elfer for $48,000. The purchase was some four and one-half years after the state’s announcement and less than two years before the expropriation in this case by the state.

An order of expropriation was signed by the Court on February 3, 1975. On the same day the State deposited into the registry of the court the sum of $21,395.00 which represented the state’s estimated value of the land expropriated. The state took 22,-520 square feet of the undeveloped land with 75 feet being front footage. After withdrawing the funds deposited, Bitter-wolf answered the petition of the State alleging that the just compensation for the property taken and severance damages to the remainder was in the amount of $75,-000.00.

At trial both the state and the property owner introduced the testimony of appraisers on the issues of compensation for the property taken or damaged. The state’s appraisers relied on comparable sales of property within the neighborhood of the taking which had been depressed in value by the proposal of the project. The property owner’s appraisers used comparable sales from an area outside the immediate vicinity of the subject property, in which property values had not been adversely affected by the announcement of the project.

Trial and Appellate Court Decisions

The trial court awarded Mr. Bitterwolf $41,662.96 for the property taken and $29,-917.01 for severance damages to his remainder. The court of appeal affirmed these awards, holding that Mr. Bitterwolf was entitled to be compensated for the depreciation in property value caused by the project’s announcement, by virtue of La. R.S. 48:453(A)’s ban against “considering any change in value caused by the proposed improvement for which the property is taken,” despite the fact that he acquired the entire property four years after the state’s announcement.

Issue Presented

We granted writs to consider whether La.R.S. 48:453 requires the courts to disregard depreciation of property values caused by the proposal of a project even when the defendant property owner purchased at the depressed value and therefore sustained no loss caused by the fact that the project was proposed.

Just Compensation to the Full Extent of An Owner’s Loss

Property cannot be “taken or damaged” by the state or its political subdivisions except for public purposes and with “just compensation” paid to the owner or into court for his benefit. La.Const.1974, Art. 1, § 4. In every expropriation, the owner must be compensated to the “full extent of his loss.” Id. Thus, our constitution does not simply require that the owner of condemned property be compensated with the market value of the property taken and severance damages to his remainder, but that he be “placed in as good a position pecuniarily as [he] enjoyed prior to the taking.” State v. Constant, 369 So.2d 699, 702 (La.1979). See Note, Expropriation: Compensating the Landowner to the Full Extent of His Loss, 40 La.L.Rev. 817 (1980).

Compensation for Property Taken

Under previous Louisiana constitutions, the legislature and the courts have developed rules which accepted market value as a relevant consideration in determining just compensation, but which also required adjustments of market value to prevent effects of a project’s proposal itself from distorting a calculation of the owner’s true loss. Civil Code article 2633 provides that “the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.” Construing the code article with the constitutional requirement of just compensation, this court held that the owner is to be paid the true value of his land, as of the moment that it is legally demanded for a proposed public improvement, without including in such value the increment which may have resulted from the fact that the improvement has been proposed, and, on the other hand, without deducting therefrom the increment which may have resulted from the fact that the improvement has been in contemplation, or from any other cause, save that the improvement has been proposed. Shreveport Traction Co. v. Svara, 133 La. 900, 63 So. 396 (1913).

As this court explained in the Shreveport Traction Co. case, the reason for the distinction which the law draws between the increment in the value of property resulting from an improvement which is merely in contemplation and that resulting in a case where such has actually been proposed (or actually constructed) is that:

“[T]he public at large, or particular individuals, may hold an enterprise, which, within the meaning of the law, is regarded as public improvement in contemplation for generations, only, in the end, to abandon the idea, whilst the property to be affected by it is, in the meanwhile, on the market, and is bought and sold at prices which vary as the prospect that the improvement will be made, or will be abandoned, becomes, in the opinions of the buyers and sellers, imminent or remote. In other words, the possibility or probability, that some improvement affecting particular property will, or will not, be made, and, if made, when, and with what effect, are commonplace factors, which, with others, determine, from time to time, the market value of such property. When, however, the period of uncertainty — of mere hope, speculation, anticipation, or contemplation — is past, and the time arrives when the property is demanded for the purposes of an improvement actually proposed, the state, having the right to take it, upon first making just and adequate compensation, should not be required to pay, in addition to its true value, a further amount, merely because of the purpose for which it is to be used, inasmuch as that purpose is to promote the welfare of the entire community." Id. 63 So. at 398-99.

Severance Damages

The Louisiana courts since 1889 have compensated for severance damages according to a “before and after” test under which the measure is the diminution in the value of the remaining property caused by the taking. McMahon v. St. Louis A & T. R. R., 41 La.Ann. 827, 829-30, 6 So. 640, 641 (1889); M. Dakin & M. Klein, Eminent Domain in Louisiana pp. 70-73 (1970, Supp. 1978); Tate, Legal Criteria of Damages and Benefits — The Measurement of Taking-Caused Damages to Untaken Property, 31 La.L.Rev. 431, 433 (1971). Our jurisprudence also established the auxiliary precepts that, while general benefits received by all property in the neighborhood may not be used to reduce severance damages, recovery for severance damages may be set off by any special benefits the remainder receives as a consequence of the new improvements for which the property is taken. State v. Central Realty Inv. Co., 238 La. 965, 117 So.2d 261 (1960); Thomas & Warner v. City of New Orleans, 230 La. 1024, 89 So.2d 885 (1956); State v. Cooper, 213 La. 1016, 36 So.2d 22 (1948); Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654 (1941); M. Dakin & M. Klein, supra, at 86-88; Tate, supra, at 436-37. The underlying reasons for the setoff rules as stated by this Court in Louisiana Highway Comm. v. Grey, 197 La. 942, 2 So.2d 654 (1941) are as follows:

“The benefits or advantages, if any, which may result from the construction of the work are either general or special. General benefits are those which are shared alike by all property owners in the neighborhood or community. Such damage as a property owner may sustain as a result of the construction and use of a public work cannot be offset by these general benefits. The reason is that the citizen whose property is taken cannot be compelled to bear more of the cost of the public improvement and general benefits resulting therefrom than is borne by other property owners whose property is neither taken nor damaged for the public purpose.
u * * *
“The rule is different as to peculiar or special benefits, or those affecting a particular estate by reason of its direct relationship to the improvement. If, as a result of constructing a new work, the remaining land or part of it is left fronting on a road or street, and the land fronting the road or street is more desirable and more valuable because of the frontage, the advantage thus gained is a special or peculiar benefit, and damages to the remaining property may be offset by such benefits. * * * ” 2 So.2d at 660-61.

Louisiana Civil Code article 2633 has, since 1870, prohibited the deduction from any award for the property actually taken of “any amount for the benefit derived by the owner from the contemplated improvement or work.” See also, La.R.S. 19:9 (1950). The statutory prohibition, of course, applies only to deducting benefits from the award for the taking itself; the deduction of special benefits from severance damages otherwise allowable is sanctioned by our jurisprudence, even though such benefits cannot set off the award for the taking itself. See, M. Dakin & M. Klein, supra, at 88-89; Tate, supra, at 436.

The Quick Taking Statute

Upon adoption of Article 1, § 4 of the 1974 Louisiana Constitution, which broadened the concept of just compensation to cover the full extent of the owner’s loss, the legislature amended and reenacted the statutory rules governing “quick takings” for highway purposes, La.R.S. 48:441-460, to harmonize them with the new due process guarantee and the established statutory and jurisprudential precepts. As part of this legislation, La.R.S. 48:453 became effective January 1, 1975, and at the time of the taking in this case provided:

A. The measure of compensation for the property expropriated is determined as of the time the estimated compensation was deposited into the registry of the court, without considering any change in value caused by the proposed improvement for which the property is taken.
B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
C. The owner shall be compensated to the full extent of his loss.
D. The department shall present its evidence of value first, [amended by Act 391 of 1976 to provide that: “The defendant shall present his evidence of value first.”]
E.Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.

By the amendment and reenactment of La.R.S. 48:453, the legislature (1) recognized the new express constitutional requirement that the owner shall be compensated to the full extent of his loss; (2) incorporated the established rule that compensation for takings shall not include any increment in market value resulting from the fact that the improvement has been proposed; (3) expanded this rule to provide that any change in market value caused by the proposed improvement, whether an increase or a decrease, shall be disregarded; (4) incorporated the severance damage “before and after” test and “special benefits” rule; and (5) added rules governing attorneys fees and the order of trial.

The clear legislative aim of La.R.S. 48:453 pervades each of its parts. Its object is to implement the constitution by assuring that each owner is justly compensated to the full extent of his loss for property taken or damaged by the state, i.e., to see to it that he is placed in as good a position pecuniarily as he enjoyed prior to the taking. This purpose is expressly stated by the statute and each section of the legislation must be construed to further its central goal.

Interpreting the statute in this way, we conclude that it is designed to compensate each person only for the amount of his own loss due to a taking or damage of his property by the state. The legislative and jurisprudential history of the rules incorporated by La.R.S. 48:453 indicates clearly that they by no means express the ultimate ends of eminent domain law. Rather, they merely require adjustments when the actual market value at the time of taking does not reflect an owner’s actual loss or gain due to the effects of the proposed improvement. Under La.R.S. 48:453(A), expropriation-induced changes in value, whether upwards or downwards, are excluded from consideration so that neither party will be adversely affected by market abnormalities caused by the prospect of the expropriation. The rules of adjustment were never intended to permit any owner or class of owners to receive compensation, for land taken or damaged, which amounts to more or less than an individual owner’s actual loss.

In La.R.S. 48:453(A), the legislature provided that compensation for property taken shall be measured “without considering any change in value caused by the proposed improvement for which the property is taken.” Although the statute does not explicitly so state, we think it was intended that the courts should disregard only changes in value caused by the proposed improvement which occurred subsequent to the expro-priatee’s purchase of the property. In the vast majority of cases in which market value at taking is affected by the proposed improvement, the expropriatee is the owner of the property at the time of its change in value. In measuring compensation in such a case, an adjustment to market value is appropriate under our long standing policy that the state should pay an owner the true value of his property taken without respect to any increment in value (or devaluation) caused by the purpose for which it is taken. See, Shreveport Traction Co., supra. In the unusual case in which an expropriatee purchases the property following such a change in value, however, this type of adjustment is not called for because the ex-propriatee has not been adversely affected by the previous change in value. In reality, his property interests did not undergo any expropriation-induced change in value. To apply the adjustment in such an unusual case would cause the expropriatee to be compensated for more or less than his actual loss. If, for instance, an expropriatee purchases property, already depressed in value by the proposed project, and his compensation for the taking is adjusted upwards pursuant to La.R.S. 48:453(A) to offset expropriation-induced depreciation, he would reap a windfall. An expropriatee in such a case has not been adversely affected by the expropriation-induced depreciation of the property; he benefitted from its effects which were reflected in the reduced purchase price he paid. On the other hand, if an expropriatee purchases property subsequent to the time that a project is proposed, and the value of the property already has been enhanced by the proposed project, a mechanistic application of La.R.S. 48:453(A) would require an adjustment downwards of the market value of the property despite the fact that the expro-priatee may have purchased the land in good faith at its enhanced value. In view of the legislative aim to compensate each owner to the full extent of his loss, the statute implicitly applies only to changes in value which occur during an expropriatee’s ownership of the property, or else the lawmakers did not advert to the unusual situation presented by this case and thus failed to provide for it in La.R.S. 48:453(A). We reject as unlikely and incongruous with the statute’s purpose, history and constitutional underpinnings, the notion that La.R.S. 48:453(A) is designed to permit a small class of expropriates to be compensated for more or less than the full extent of their losses.

We have found ho Louisiana case in which an expropriatee acquired the property taken after a change in value caused by the proposed improvement for which it was taken. We found no case in any jurisdiction in which an owner was permitted to recover for condemnation-induced depreciation of market value which occurred before he acquired the property. In a Superior Court of New Jersey case, State v. S. Nablone Trucking Co., Inc., 128 N.J.Super. 370, 320 A.2d 186 (1974), cert. denied, 65 N.J. 575, 325 A.2d 708 (1974), a situation similar to Mr. Bitterwolf’s was presented. The reasoning of the court, although not based on statutory law, is persuasive and similar to our view:

“Whatever may have been the depreciating effect (if any) upon the market value of the condemned premises resulting from the prior announcement of the proposed taking, defendant-owners benefited from it to the same or greater extent at the time they purchased the premises in 1970. And, just as an owner is not entitled to benefit from an enhancement in value as a result of a previous announcement of a proposed taking, 4 Nichols, supra, § 12.3151[1]; Annotation, ‘Condemnation—Damages—Enhanced Value,’ 147 A.L.R. 66 (1943); Jersey City Redevelopment Agency v. Kugler, supra, 58 N.J. [374] at 379, 277 A.2d 873, so a landowner who has not been damaged by the depreciating effect of such prior announcement is not entitled to reap a windfall. If there were any doubt that defendant-owners were not damaged as a result of any such depreciating effect, it is at once dispelled when it is observed that the amount awarded the owners by the jury ($508,500) exceeded the price paid by them for the premises just 16 months earlier ($325,000) by the sum of $183,500 — more than 56% over and above the 1970 purchase price.”

In the present case, if there can be any doubt that Mr. Bitterwolf should not recover for the depreciation of property value which was caused by the state’s announcement of the project and which occurred prior to his purchase of the property, it is dispelled by the observation that the amount awarded him for the part taken plus severance damages to the remainder ($71,579.97) exceeded the price he paid for the entire premises just 23 months earlier ($48,000) by the sum of $23,579.97 — more than 49% over the 1973 purchase price. Furthermore, defendant’s own appraisers, Mr. Stevenson and Mr. Boetner, placed an after-taking value of $35,196 and $46,936 respectively on the defendant’s remainder.

We conclude for the foregoing reasons, that the previous courts fell into an error of law by assuming that La.RS. 48:453(A) required the trier of fact to disregard any change in value to the property caused by the proposed improvement which occurred before Mr. Bitterwolf’s ownership. The adjustment to market value required by this statute applies only to changes in value which occur subsequent to the expro-priatee’s purchase of the property. The evidence in this case makes it clear that most, if not all, of the change in value induced by the project’s announcement occurred before Mr. Bitterwolf acquired the property. Accordingly, all of the change in value which occurred before Mr. Bitterwolf became the owner of the property should have been considered in measuring the compensation for the property taken and the damage to the remainder. Since Mr. Bit-terwolf was not adversely affected by expropriation-induced depreciation of the property’s value, he is not entitled to an adjustment which is designed solely to protect parties against such losses. The award for the property taken and the severance damages should have been based on actual market values.

The issue presented in this case was res nova prior to this decision. The previous courts’ erroneous construction of La.R.S. 48:453 skewed the awards for the property taken and the severance damages. The landowner’s appraisers based their selection of comparables on the same incorrect theory. Although this court is not disposed to remand a case for retrial simply because a litigant has pitched his case on the wrong theory, we think there is countervailing extenuation in this case. The statute with which the parties and the courts had to contend below is not a model of clarity. Only after laborious examination and exegi-sis of jurisprudence covering many areas of expropriation law were we able to interpret the statute with confidence. Although it is clear that Mr. Bitterwolf is not entitled to compensation for expropriation-induced depreciation in value which occurred prior to his purchase of the property, there is a possibility that some of the downward change occurred during his ownership. The testimony of expert witnesses and the findings of the trial judge are ambiguous on whether the depressive effect on market value attributable to the project’s announcement had fully run its course before Mr. Bitterwolf acquired the property. Because of these difficulties the record compiled in the trial court is less than adequate for the determination of just compensation for the taking and severance damages. Accordingly, in the interest of justice and a proper and legal judgment, the judgments below will be reversed and the case will be remanded to the trial court for further proceedings consistent with the views herein expressed.

One further issue should be mentioned briefly. Mr. Bitterwolf’s vendor by warranty deed assigned all of his rights as owner to the defendant when he purchased the property. Therefore, Mr. Bitterwolf argues, he is entitled to assert his vendor’s claim against the state for the depreciating effects upon its value during the vendor’s ownership caused by the proposal of the improvement. The short answer to this contention is that Mr. Bitterwolf’s vendor had no cause of action or claim to assign. At the time of the sale there had been no taking of the property. An actual taking is required before damages are allowed except in instances in which a landowner suffers special damages not sustained by the public in general, rather than merely incidental damages. Reymond v. State, Dept. of Highways, 255 La. 425, 231 So.2d 375 (1970). See, M. Dakin & M. Klein, Eminent Domain in Louisiana pp. 63-4 (1970); Tate, supra, at 433; Dakin, Developments in the Law, 1979-1980: Expropriation, 41 La.L.Rev. 474 (1981) Comment, Expropriation — Consequential Damages Under the Constitution, 19 La.L.Rev. 491 (1959).

REVERSED AND REMANDED TO TRIAL COURT.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

La.R.S. 48:453(A) provides that the measure of compensation for property expropriated is determined as of the time of taking “without considering any change in value caused by the proposed improvement for which the property is taken.” Clearly, compensation for takings should not include “any change” in market value caused by the proposed improvement, whether an increase or a decrease.

Under the above statute, compensation for property taken is to be made without considering any change in value caused by the proposed improvement. Ownership of the property is determined as of the time of the taking. Prior ownership of the property is of no moment. Hence, it matters not whether the owner of the property sells, donates or otherwise disposes of his property between the announcement of the proposed improvement and the actual taking of the property. The only requirement of the statute is that the owner of the property, at the time of the taking, be compensated “without considering any change in value caused by the proposed improvement for which the property is taken.”

Hence, in the instant case, Bitterwolf, as the owner of the property at the time of the taking, should be compensated without regard to the decrease in value of the property caused by the proposed improvement. The converse would likewise be true in the event that the property had increased in value, that is, compensation should be paid without regard to any increase caused by a change in value resulting from the proposed improvement.

I respectfully dissent.

      . This condition is variously referred to as “condemnation blight” or “planning blight.” See, 7A Nichols, supra, at § 14.02(4); Sack-man, Condemnation Blight — A Problem in Compensability and Value, 1973 Institute on Planning, Zoning, and Eminent Domain 157 (1973); Kanner, Condemnation Blight: Just How Just Is Just Compensation? 48 Notre Dame Lawyer 765 (1973).

      . State, Through Dept. of Highways v. Bitterwolf, 401 So.2d 380 (La.App. 1st Cir. 1981).

      . The question of when a “contemplated” improvement becomes “proposed” is left to the courts and may vary with the circumstances of the case. Id. 63 So. p. 399. See, e.g., State through Dept. of Highways v. Trippeer Realty Corp., 276 So.2d 315 (La.1973); Louisiana Ry. & Nav. Co. v. Xavier Realty, 115 La. 328, 39 So. 1 (1905); State through Dept. of Highways v. Lirocchi, 329 So.2d 803 (La.App. 1st Cir. 1976); State through Dept. of Highways v. Port Properties, Inc., 316 So.2d 749 (La.App. 1st Cir. 1975); State through Dept. of Highways v. Johnson, 141 So.2d 54 (La.App. 2d Cir. 1962).

      . The legislative intent to perpetuate the rule permitting severance damages to be set off by any special benefits the remainder receives as a consequence of the improvements for which the property is taken was made clearer by Act 391 of 1976. As amended by it, La.R.S. 48:456.1 provides:
      The plaintiff shall not be required to amend its petition in order to obtain judgment in an amount less than that originally deposited into the registry of the court, but the plaintiff may not introduce evidence as to any special benefits unless specially pleaded. If severance damages are pleaded by the defendant, the plaintiff shall have the opportunity to plead special benefits twenty days prior to trial.

      . Compare, Uniform Eminent Domain Code § 1005, Comment (1974).

      . Even in the absence of La.R.S. 48:453(A), such an adjustment to the fair market value might be mandated by the United States Constitution. In United States v. Virginia Electric & Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961), the Supreme Court stated the rule as follows:
      “The court must exclude any depreciation in value caused by the prospective taking once the Government ‘was committed’ to the project.”
      365 U.S. at 636, 81 S.Ct. at 792. See, Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Sup.Ct.Rev. 63, 95 (Kurland ed.)

      . The trial court’s lump sum award of $50,-184.97 to defendant apparently represents payment for the part taken at $1.85 per square foot together with $29,917.01 in severance damages less the $21,395 already deposited in the registry of the court and withdrawn by the defendant.

      . La.R.S. 48:453(B) does not specify whether any expropriation-induced changes in property value should be excluded from consideration when calculating the before-taking or after-taking values of the remainder. Cf., La.R.S. 48:453(A); Uniform Eminent Domain Code § 1005, Comment (1974). Even if La.R.S. 48:453(B) required the exclusion of changes in property value attributable to the state’s announcement, such an adjustment in market value would be improper in the instant case for the same reasons we rejected the application of such an adjustment in determining the amount due defendant for the property taken under La.R.S. 48:453(A).


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Charles F. WALGAMOTTE.
    No. 81-K-2706.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied July 2, 1982.

      G. Walton Caire, Edgard, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Charles F. Walgamotte was fifteen years old when on July 9,1973, he allegedly participated in committing a first degree murder upon the female co-owner of an auto parts store in Reserve, Louisiana. The state attempts to continue this capital prosecution originally instituted by grand jury indictment on August 17, 1973.

Defendant contends that prosecution at this late date is barred by C.Cr.P. art. 578 which provides essentially that no trial shall be commenced in capital cases after three years from the date of institution of the prosecution. He further contends that there has been no interruption of the three year limitation as required by Article 579(2).

We granted writs upon defendant’s application following a trial court ruling on September 14, 1981, denying his motion to quash.

For the reasons which follow, principally because the state inexcusably neglected to commence trial for a period in excess of three years uninterrupted by any cause specified in Article 579 of the Code of Criminal Procedure, we reverse the ruling of the trial court and order defendant released. Assuming that the limitation period on commencing trial was interrupted between the August 17, 1973 indictment and April 30, 1976, the date of this Court’s denial of his writ application (No. 57,838), and between March 7, 1980 and the present time, there was nonetheless a period in excess of forty-six months (April 30, 1976, through March 7,1980) during which the state could and should have commenced trial, a period not interrupted by any of the causes outlined in C.Cr.P. art. 579. As will be seen hereinafter, there was no action taken to bring the defendant to trial between the April 30,1976, writ denial and the March 7, 1980 filing of defendant’s habeas petition in the district court.

This case has had a long and tortuous procedural history which we will attempt here to trace.

The crime with which defendant is charged occurred on July 9, 1973. He was indicted on August 17,1973, and brought on for arraignment on August 27, 1973, at which time he pleaded not guilty by reason of insanity. A sanity commission was appointed to examine the defendant. At the sanity hearing on January 9,1974, the court found that Charles Walgamotte was sane at the time the crime was committed and was capable of standing trial.

On May 31,1974, represented by appointed counsel, Charles Walgamotte and his brother Prank entered a plea bargain with the state. The state assented, and defendant and his brother each entered unqualified guilty pleas to second degree murder, and they were sentenced by the trial judge to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence for twenty years.

On January 20,1975, this Court decided a ease pertinent to Charles Walgamotte’s situation: State ex rel. Moore v. Warden of Louisiana St. Pen. at DeQuincey, 308 So.2d 749 (La.1975) wherein we found that under the then prevalent provision of the Louisiana Constitution and La.R.S. 13:1570, the district court did not have jurisdiction to accept a plea of guilty and impose sentence upon a fifteen year old for second degree murder, a non-capital offense. Moore’s plea and sentence was set aside and he was remanded to the district court for further proceedings. Supra at 752.

On March 31,1975, defendant, through his attorney, filed a petition in the district court requesting that a writ of habeas corpus be issued because he was being unlawfully detained at the Louisiana State Penitentiary at Angola. The petition declared that the defendant had been fifteen years old when charged. Under La.R.S. 13:1570(5) the district court had lost jurisdiction when the guilty plea to second degree murder was entered and therefore the defendant should be released from Angola and placed in the custody of proper juvenile authorities.

On April 14, 1975, in response to that petition the trial judge vacated the guilty plea to second degree murder, and remanded Walgamotte to the parish prison of St. John the Baptist to await trial on the first degree murder charge rather than placing him in the custody of juvenile authorities.

On May 14,1975, defendant through counsel filed a writ application in this Court (State v. Charles Walgamotte No. 56304 on the docket of this Court). Essentially he contended that because on May 31,1974, the adult district court was without jurisdiction to take a plea to second degree murder as relates to a fifteen year old juvenile, and because the district judge in the parish of St. John the Baptist was both the adult and juvenile judge, the entry of the guilty plea to second degree murder should have been permitted to stand, and defendant should therefore have been sentenced as a juvenile for the crime of second degree murder. Had he been sentenced as a juvenile, he would have been confined in a juvenile facility only to age twenty-one. Accordingly, he complained of the trial court’s ruling of April 14,1975, upsetting the guilty plea and remanding him to the sheriff for trial for first degree murder in the adult district court.

To entertain defendant’s contention that he was due juvenile punishment for his second degree murder plea, and that, in light of the state’s accepting a plea to second degree murder, prosecution anew for first degree murder was impermissible, this Court on June 17, 1975, granted the writ in part and ordered the trial court “to conduct an evidentiary hearing to determine the nature, content and effect of the plea bargain agreement. Other proceedings stayed pending that hearing.”

In response to that action by this Court the trial judge, on June 19th, set an eviden-tiary hearing for July 14, 1975. On that day, on motion of counsel for the defendant, Judge Marino recused himself because he was to be called to testify about the circumstances surrounding the earlier plea. The hearing was thereafter conducted by Judge Bradley.

At that hearing, there was some disagreement about whether the defendant had been promised he might serve his time at DeQuincy rather than Angola. Nevertheless it was evident that he entered his plea to second degree murder with the punishment to be life imprisonment at hard labor, in order to avoid exposure to the death penalty. There was clearly no deal or understanding that he would be treated as a juvenile upon entering the second degree murder plea. At the conclusion of the hearing, Judge Bradley ordered that the eviden-tiary hearing be transcribed and placed at the disposal of this Court for its study. He went on to recite that because this Court may have expected him to make a ruling at the conclusion of the evidentiary hearing, he would do so. And he ruled that the plea of May 31, 1974 was voluntary.

The transcript of that July 14, 1975 hearing was filed in this Court on September 5, 1975. Defendant, who had been returned from Angola on April 10, 1975, for the purpose of the evidentiary hearing, was returned to Angola on July 29, 1975.

Then on April 9,1976, in proceedings No. 57838 on the docket of this Court, defendant through counsel applied here again contending that inasmuch as the hearing had been conducted pursuant to our order of June 17, 1975, to probe into the circumstances surrounding the entry of the guilty plea of May 31, 1974, this Court should rule on the substance of his contentions (those contained in his March 31, 1975 district court habeas petition and his writ No. 56304 in this Court). Therein he had claimed as we have already noted that he should not have been remanded to the sheriff for trial on first degree murder, but should either have been released or permitted to have the second degree murder plea maintained, with juvenile punishment imposed.

This Court on April 30, 1976, denied the writ observing that relator was not entitled to any such relief. Justice Dixon concurred in the denial being of the opinion that the applicant “cannot receive a more serious sentence than that previously imposed.” As was the custom of this Court at that time, due notice of the action on the writ was sent to the proper parties and authorities involved and to the lower court. Inasmuch as the ruling under consideration was the trial judge’s vacating and remanding for trial on first degree murder, this Court’s denial placed the case in the posture of being ready for trial on the first degree murder indictment.

No further action was taken on this case in the district court or in this Court for more than three years during which time defendant has been in Angola without an outstanding conviction. Thereafter the following took place:

On March 7,1980, Walgamotte, apparently mistaken about the status of his case, filed a pro se writ application in the district court to have the original plea vacated and to be released from confinement since by then he was twenty-one years old. Judge Marino dismissed defendant’s habeas petition on May 12, 1980, as “being res judicata in being fully litigated” (sic). No. 80-K-1488 on this Court’s docket, a pro se writ application by defendant, was filed on July 1, 1980 complaining of Judge Marino’s dismissal and seeking to have the original plea vacated. On February 13, 1981, this Court denied the application with the following language:

By this application relator seeks to have his guilty plea to and the resultant conviction for second degree murder vacated. The application is denied because the request is moot. Information supplied this Court indicates that on April 14,1975, the trial judge ordered the guilty plea withdrawn and relator remanded to parish prison to await trial for first degree murder. The stay order granted applicant by this Court on June 17,1975, in connection with an earlier application by this relator coincident with our ordering the trial court to conduct an evidentiary hearing regarding relator’s guilty plea, is no longer in effect.

The Chief Justice concurred: “It appears that relator is in Angola under a sentence vacated six years ago and there are no charges against him.”

Thereafter defendant filed a pro se habe-as petition in the district court on February 19, 1981, seeking relief and citing the language employed in the writ denial in No. 80-K-1488 and the Chief Justice’s concurring language.

One month later, without the trial judge’s having ruled on his March 19, 1981 filing in that court, Walgamotte filed a pro se habe-as application in this Court (March 23,1981, No. 81-KH-0792) to have us require the district court to rale. On April 17, 1981 having learned that the trial court had taken action on March 27, 1981, concerning defendant’s February 19, 1981 filing, we denied the writ as moot. The trial court had dismissed the application “as it pertains to release” and had ordered that “the defendant be transported and held without bond for trial of First Degree Murder.” Counsel was appointed on June 9,1981 (coincidentally, the same lawyer who had been appointed to represent him shortly after his 1973 indictment) and the case set for trial on October 14, 1981.

On July 30, 1981, defendant’s attorney Caire filed a motion to quash the indictment complaining that there had been an uninterrupted three year delay following indictment without the state’s having brought defendant on for trial. Alternatively, the defendant argued in the motion to quash that his being fifteen at the time he pleaded guilty to second degree murder placed him under the juvenile laws of the state. The juvenile laws provide for release at age twenty-one. Since defendant was then twenty-three years old, he should be released.

On September 18, 1981, the trial court denied the motion to quash, finding, on the one hand, that the defendant was not under the authority of the juvenile courts and, on the other, that the time limitations had been interrupted by the defendant’s actions in filing the various writ applications. The judge also alluded to principles of estoppel.

On November 27, 1981 we granted defendant’s writ application to review the denial of the defendant’s motion to quash. We turn now to consideration of the substance of relator’s complaint.

The prosecution of Charles Walgamotte for his part in the crime of first degree murder was properly instituted by grand jury indictment, signed a “true bill” on August 17,1973. The history of that prosecution, recited hereinabove, reveals that defendant pled guilty to second degree murder in the district court for the parish of St. John the Baptist on May 31, 1974 with the consent of the district attorney. C.Cr.P. art. 558; State v. Green, 263 La. 837, 269 So.2d 460 (1972). The district attorney acquiesced in the plea, as permitted by C.Cr.P. art. 487. State v. Green, supra. There was no formal amendment of the 1973 indictment. When the district judge vacated the defendant’s guilty plea to second degree murder after the hearing held on April 14, 1975, the 1973 indictment was still outstanding and formed the basis for the trial judge’s remanding Walgamotte to the St. John the Baptist Parish prison on that day to await trial for first degree murder.

The proceedings which took place thereafter, culminating in the writ denial by this Court on April 30, 1976, did serve to suspend the running of the time limitations for commencement of trial. Those proceedings included a stay of proceedings on June 17, 1975, an evidentiary hearing on July 14, 1975, the transmission to this Court of the transcript to this Court on September 5, 1975, and writ application of April 9, 1976. These interrupting legal skirmishes concluded on April 30, 1976, when we denied defendant’s application and upheld the trial judge’s ruling of April 14,1975, wherein the trial judge had ordered the defendant held over for trial as an adult on first degree murder. The district attorney of St. John the Baptist Parish had from that point three years in which to bring Charles Wal-gamotte to trial as an adult on the first degree murder charge. That trial should therefore have been commenced on or before April 30, 1979. Any effort by the defendant after April 30, 1979 to secure his release from confinement, which he had reason to believe was illegal, has no bearing on the time limitations which had already expired and the legal effect thereof. Therefore the state’s contention that the defendant’s April 27, 1981 writ application had served to interrupt the time available for commencing trial is without merit.

A motion to quash the indictment is the proper procedural vehicle for challenging an untimely commencement of trial. C.Cr.P. art. 581 and C.Cr.P. art. 532(7). For a capital offense, trial must begin within three years of the date of the institution of the prosecution. C.Cr.P. art. 578(1). As noted in the official comment (a) to this codal provision, Louisiana allows the state a considerably longer time period in which to begin trial than do other states.

In State v. Theard, 212 La. 1022, 34 So.2d 248 (1948) quoting State v. Theard, 203 La.1026, 14 So.2d 824 at 825 (1943), we considered the purpose of statutory requirements of dismissal when legislatively mandated time limitations have elapsed. They are:

to enforce the right of an accused to a speedy trial and to prevent the oppression of citizens by suspending criminal prosecutions over them for an indefinite time as well as to prevent delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal accusations. (Emphasis added.)

More recently, in State v. Alfred, 337 So.2d 1049 (La.1976) (On rehearing), we noted specifically at 1055-1056:

... in a capital case Article 578 of the Code of Criminal Procedure allows a delay of three years from the date of institution of the prosecution within which the trial may be commenced. Such an enactment is a recognition by the legislature that the time limitation thereby ordained is reasonable and acceptable under ordinary circumstances. Statutes of limitation are the primary guarantees against inordinate delays between accusation and trial. La.Code Crim.Pro. arts. 578-82; 18 U.S.C.A. §§ 3281-82; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); State v. Howard, 325 So.2d 812 (La.1976); State v. Stetson, 317 So.2d 172 (La.1975); State v. Gladden, 260 La. 735, 257 So.2d 388 (1972). These statutes represent a legislative assessment of relative interests of the State and defendant in administering and receiving justice, and they should be considered by the courts. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Theard, 203 La. 1026, 14 So.2d 824 (1943).

The Code of Criminal Procedure does however allow for the interruption of time limitations in the instances enumerated in C.Cr.P. art. 579. C.Cr.P. art. 579(2) on which the state relies provides in pertinent part for the interruption of time limitations if:

(2) The defendant cannot be tried ... for any other cause beyond the control of the state.

However the State bears the burden of proving that it was beyond its control to try the defendant within the statutory time delays. State v. Devito, 391 So.2d 813 (La.1980) (On rehearing).

The state has not borne its burden of showing that commencing the trial of Charles Walgamotte for first degree murder within three years after April 30, 1976 was beyond their control. The defendant was within reach of the state, either in the custody of the sheriff of St. John the Baptist Parish or of the warden at Louisiana State Penitentiary at Angola. There was nothing preventing the state from compelling his presence for trial, as they eventually did in 1981. The state failed to begin trial within three years under La.C.Cr.P. 578.

Decree

The district court’s denial of defendant’s motion to quash is therefore reversed. The motion is granted.

DISTRICT COURT RULING REVERSED; MOTION TO QUASH GRANTED.

WATSON, J., concurs noting that the defendant must now be discharged.

LEMMON, J., dissents and will assign reasons.

      . The defendant has been incarcerated continuously since his arrest on July 9, 1973: eleven months in the St. John the Baptist Parish jail and seven years in the Louisiana State Penitentiary at Angola, excluding three months in 1975 when he was temporarily back in St. John the Baptist Parish for post conviction hearings.

      . C.Cr.P. art 578 reads as follows:
      Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.

      .C.Cr.P. art 579 reads as follows:
      The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal, process, or for any other cause beyond the control of the state.
      The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

      . Since our Moore decision, the law relative to juvenile crimes and jurisdictions has been changed. See generally: State v. Lacour, 398 So.2d 1129 (La.1981); State ex rel Johnson, 384 So.2d 402 (La.1980); State v. Sheppard, 371 So.2d 1135 (La.1979); State ex rel Davis, 368 So.2d 1092 (La.1979); State ex rel Coco, 363 So.2d 207 (La.1978). Under the most recent constitutional changes the Legislature is invested with a greater role. La.Const. Art. V § 18 and § 19. Furthermore by Acts 1975, No. 337 § 1, the Legislature amended La.R.S. 13:1570 to provide for the district court’s retaining jurisdiction over a juvenile defendant who, when charged with the greater crime which confers district court jurisdiction, pleads guilty to a lesser included offense.

      . It appears from the record that attorney Caire’s initial representation of the defendant was for the period from arraignment on August 27, 1973 through sentencing on May 31, 1974. Attorney James Woods represented Walga-motte in the proceedings relative to writ applications from May 14, 1975 through April 30, 1976. From March 8, 1980 through June 9, 1981, Walgamotte acted on his own behalf through pro se filings in the district court and in this Court.

      . The trial judge stated from the bench:
      This Court is of the opinion that in reference to Article Number One, Article 578.1, the capital case, stating that three years of prosecution, this Court is of the opinion that when this particular matter was set for trial on the first degree murder case is that counsel for the defendant and the defendant sought another remedy of which the remedy was by writ or by the appellate process of the Supreme Court, and at this particular time, this Court finds that the prescription was either suspended or interrupted, and really at the most is that equitable estoppel would work in this particular regard in that the State was at the particular time waiting for the Supreme Court to make whatever decision that they should have made in reference to this particular matter (sic).

      . We note that the present district attorney for St. John the Baptist Parish did not take office until January 1, 1979.


author: MARCUS, Justice. DIXON, Chief Justice CALOGERO, Justice,

text:
    Joseph PASTERNACK, Jr. v. Mrs. Betty Claire Pasternack SAMUELS, et al.
    No. 81-C-3032.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied July 2, 1982.

      DeWitt T. Methvin, Jr., of Gist, Methvin, Hughes & Munsterman, Alexandria, for plaintiff-applicant.
    Dan E. Melichar, Alexandria, James H. Brown, Jr., New Orleans, for defendants-respondents.
   MARCUS, Justice.

Joseph Pasternack, Jr., owner of an undivided interest in each of 70 parcels of land, instituted this action against his sister, Betty Claire Pasternack Samuels, individually and as co-executor of the succession of their mother, which was then under administration, seeking partition by licitation of said property.

Two parcels of the land were purchased in indivisión by Mr. Pasternack and Mrs. Samuels from their father (Joseph Paster-nack). Several of the other parcels were also acquired by purchase. The remaining parcels of land were acquired by inheritance as follows. Their father died leaving his interest in the property to Mr. Paster-nack and Mrs. Samuels subject to a usu-fruct in favor of their mother, Agatha Past-ernack. Agatha Pasternack owned the remaining interest in the property. Subsequently, she died testate leaving one-half of her interest in the property in trust to Mr. Pasternack’s son and the other half in trust to Mrs. Samuels’ children, subject to a usu-fruct in favor of Mrs. Samuels. Mr. Paster-nack and Mrs. Samuels were the co-executors of their mother’s succession.

In his petition, Mr. Pasternack alleged that since the property consisted of “numerous diverse and unequal parcels or tracts of land some of which are improved,” they could only be partitioned by licitation. Mrs. Samuels’ exceptions of no cause of action, prematurity and nonjoinder of indispensable parties were overruled by the trial court. Thereafter, Mrs. Samuels answered denying that the property could be partitioned by licitation since a portion of the property was subject to a usufruct in her favor and the law prohibited partition by licitation of property burdened in whole or in part by a usufruct. Alternatively, she asserted that the property could be partitioned in kind.

The trial court, finding that the 70 parcels of land were owned one-fourth each by Mr. Pasternack, Mrs. Samuels, the trust for Mr. Pasternack’s son, and the trust for Mrs. Samuels’ children, subject to usufruct of Mrs. Samuels, ordered the property divided into four portions of equal value. Thereafter, each ownership interest would draw one portion by lot. The trial judge noted that his “ruling and my manner of partitioning the property may seem rather unorthodox.” Mr. Pasternack appealed.

The court of appeal, after examining the evidence in the record, concluded that none of the property could be partitioned in kind and since the property, other than the two parcels of land purchased by Mr. Paster-nack and Mrs. Samuels in indivisión from their father, was subject to the usufruct of Mrs. Samuels, a partition by licitation was prohibited by La.Civ.Code art. 543. Hence, the judgment of the trial court ordering partition of the property was reversed. However, the court of appeal amended the judgment of the trial court by ordering partition by licitation of the two parcels of land held in indivisión by Mr. Pasternack and Mrs. Samuels. On Mr. Pasternack’s application, we granted certiorari to review the correctness of that judgment.

The sole issue presented for our determination is whether the owner of an undivided interest in full ownership of property subject to an outstanding usufruct may demand partition by licitation.

No one can be compelled to hold property with another; a division of a thing held in common may be demanded by the action of partition. La.Civ.Code arts. 1289 and 1308. A usufruct conferred on several persons in divided or undivided shares may be partitioned among the usufructuaries. La.Civ. Code art. 541. The naked ownership may be partitioned subject to the rights of the usufructuary. La.Civ.Code art. 542. La. Civ.Code art. 543 provides:

A coowner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner. [Emphasis added.]

In the instant case, the property in question (68 parcels) is owned in indivisión by four parties: (1) Mr. Pasternack has an interest in full ownership; (2) Mrs. Samuels has an interest in full ownership and an interest in usufruct; (3) the trust for Mr. Pasternack’s son has an interest in full ownership; and (4) the trust for Mrs. Samuels’ children has an interest in naked ownership. Thus, Mr. Pasternack, as a co-owner, could demand partition in kind to the extent necessary to obtain the perfect ownership of a determined part. La.Civ.Code art. 543. The property sought to be partitioned includes both improved and unimproved lots, ranging from residential to commercial. There is also some agricultural acreage. The only evidence presented at trial was the testimony of Mr. Pasternack and James A. McNew, both experts in real estate. Mr. Pasternack stated that none of the property could be divided in kind without diminution in value or inconvenience of one of the owners. Mr. McNew agreed except as to possibly two tracts. Mr. Pasternack opined that the two tracts could not be divided in kind without a diminution in value. The court of appeal concluded, and we agree, that none of the property, including the two parcels, could be partitioned in kind. The parties do not contest this conclusion.

Although art. 543 allows a full owner to partition in kind subject to a usufruct, by its clear wording, “partition by licitation is not allowed.” It is evident from the language of the article that the prohibition refers to property subject to usufruct and applies to the full owner as well. Hence, the court of appeal correctly found that Mr. Pasternack, as full owner of an undivided interest in the property, subject to the usu-fruct of Mrs. Samuels, was prohibited by art. 543 from partitioning the property by licitation. Any change in the article addresses itself to the legislature.

As a further contention, Mr. Paster-nack raises the issue of the constitutionality of art. 543. He first argues that art. 543 deprives him of his right to dispose of his property. This argument is without merit, however, since Mr. Pasternack has the unlimited right to sell his undivided interest in the property to any willing purchaser. Mr. Pasternack further argues that art. 543 denies him equal protection of the laws. He contends that if Mrs. Samuels renounces her usufruct, she could sue for partition by licitation. In that event, Mr. Pasternack could also sue for partition by licitation since there would be no outstanding usu-fruct. Hence, Mr. Pasternack is treated like all others similarly situated. Accordingly, this contention is without merit.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, C. J., concurs with reasons.

CALOGERO, J., dissents and assigns reasons.

LEMMON, J., dissents.

DIXON, Chief Justice

(concurring).

I respectfully concur, agreeing with the opinion because relator limits his demands to a partition by licitation.

CALOGERO, Justice,

dissenting.

The majority finds this case distinguishable from Devillier v. Devillier, 371 So.2d 1230 (La.App. 3rd. Cir. 1979), writs refused, 373 So.2d 546 (La.1979). In my opinion the cases are not distinguishable and the result in Devillier, whereby the partition by licitation was allowed, was correct. It was for this reason, in my view, that we denied writs in that case.

In Devillier, as in the present case, the person seeking the partition by licitation was a perfect owner of an undivided interest in the property. It was only another co-owner’s interest that was burdened by a usufruct. The Devillier court noted that one who holds a perfect ownership interest in property in indivisión has common ownership elements (i.e., rights of the same nature over the same object) with all others who hold an interest in the property, naked owners as well as usufructuaries, since perfect ownership is the combination of a usu-fruct interest and a naked ownership interest in the same person. Therefore, since plaintiff’s perfect ownership interest gave her common elements with all the others who had an interest in the property, the court held that plaintiff was entitled to the partition by licitation. La.C.C. arts. 541 & 542.

The same result should obtain here, where it is a perfect owner seeking the partition by licitation. La.C.C. art. 543 should not be read as prohibiting a partition by licitation in such a ease, as the majority herein concludes, because the provision was only intended to apply to situations where the person seeking the partition by licitation does not hold common elements with all others who have an interest in the property.

La.C.C. art. 543 is at best ambiguous. When we look to the underlying jurisprudence on which the article was based in order to flesh out its meaning, we find that the concern of the redactors in enacting the provision was to prohibit partition by licitation of property subject to a usufruct only where the party seeking the partition does not hold rights of the same nature in the same object, common elements, with all others who hold an interest in the property. Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); Succession of Glancey, 112 La. 430, 36 So. 483 (1904); Fricke v. Stafford, 159 So.2d 52 (La.App. 1st Cir. 1963). The policy behind such a prohibition is the belief that one with certain interests in property should not be able to affect the interest of others where those interests are not the same. See La.C.C. art. 543, Comments; and La.Civil Law Treatise, Personal Servi-tudes, Vol. 3, § 8, A. Yiannopoulos, 1978. Thus, under La.C.C. art. 543, a usufructuary or naked owner cannot affect the interests of the other, nor can either force a full owner to dismember his title by obtaining a partition by licitation.

The policies contained in the cases upon which La.C.C. art. 543, as revised, is based have no application when it is a perfect owner who is seeking the partition by licitation. See Civil Law Property — Partition of Land Subject to a Usufruct, by Charles A. Snyder, 24 La.L.Rev. 885 (1964). Therefore, one holding elements in common with all of his co-proprietors should not be precluded from seeking a partition by licitation, as such a result was not intended by La.C.C. art. 543. To hold otherwise, as does the majority, is to allow one to create a usu-fruct over a fractional share of property held in indivisión to defeat a partition by licitation of the property by a perfect owner who originally obtained his perfect interest in the property when it was free of any usufruct.

In the excellent commentary, Civil Law Property — Civil Code Article 543 and the Prohibition of Partition by Licitation of Property Subject to Usufruct by B. J. Pis-tillo, Jr., [55 Tul.L.Rev. 224 (1980), cited in Footnote 5 of the majority opinion] the author suggests a legislative amendment to La.C.C. art. 543 that would more clearly express its intended application only to situations in which forced dismemberment would result:

One who holds no interest in perfect ownership may not obtain partition by licitation even though there is another person who holds interests in both perfect ownership and usufruct or naked ownership.

The author notes that “[w]ith such a provision in the Code, a perfect owner would never be defeated in his attempt to force partition by licitation; and he likewise could never be forced to submit to partition by licitation unless required to do so by another perfect owner in indivisión.” The suggested clarification, in my view, represents the proper interpretation and intent of Article 543 as presently written.

For the above reasons, I dissent.

      . Contrary to this finding, it appears from the record that the ownership of 68 of the parcels of land is as follows: (1) Fifty-five parcels are owned lh each by Mr. Pasternack, Mrs. Samu-els, the trust for Mr. Pasternack’s son, and the trust for Mrs. Samuels’ children; (2) Nine parcels are owned 5/s by Mr. Pasternack, and Vs each by Mrs. Samuels, the trust for Mr. Paster-nack’s son and the trust for Mrs. Samuels’ children; (3) Two parcels are owned 9/2e each by Mr. Pasternack and Mrs. Samuels, and 5/zs each by the trust for Mr. Pasternack’s son and the trust for Mrs. Samuels’ children; and (4) Two parcels are owned 2/V each by Mr. Paster-nack and Mrs. Samuels and 3/u each by the trust for Mr. Pasternack’s son and the trust for Mrs. Samuels’ children. In each case, the ownership interest of the Samuels’ children is subject to the usufruct of Mrs. Samuels. The remaining two parcels of land are owned in indi-visión by Mr. Pasternack and Mrs. Samuels.

      . 406 So.2d 290 (La.App.3d Cir. 1980).

      . 411 So.2d 453 (La.1982).

      . In the recent case of Devillier v. Devillier, 371 So.2d 1230 (La.App.3d Cir.), writ refused, 373 So.2d 546 (La.1979), the court of appeal ignored the literal wording of art. 543 and allowed partition by licitation of property subject to usufruct. In Devillier, plaintiff and her three siblings were owners in indivisión of a tract of land and the house situated on it. Plaintiffs siblings granted their father a conventional usufruct over their undivided interests in the property. Plaintiff, owner of one-quarter of the property in indivisión, sued her siblings and father for partition by licitation. The court, in granting the remedy sought, narrowly framed the issue as “whether a co-owner can burden his interest with a conventional usufruct in favor of a third person and thereby extinguish the rights of another co-owner to obtain a partition by licitation.” The situation in Devillier is not presented in the instant case.

      . For an excellent commentary on the problems created by the last sentence of art. 543 and a suggested legislative amendment to said article, see Civil Law Property — Civil Code Ar-tide 543 and the Prohibition of Partition by Licitation of Property Subject to Usufruct by B. J. Pistillo, Jr., 55 Tul.L.Rev. 224 (1980).


author: DIXON, C. J., and MARCUS, J.,

text:
    SUCCESSION OF Archie G. HEARN. Mallery Clotille Hearn MUSSELWHITE v. Mamie Slack HEARN, et al.
    No. 82-C-1180.
    Supreme Court of Louisiana.
    June 4, 1982.
   DIXON, C. J., and MARCUS, J.,

concur in the denial, La.App., 412 So.2d 692, being of the opinion that the 5 year prescription period began to run from the date of the judgment of possession (Feb. 13, 1975) but was interrupted by plaintiff’s pleading filed in the succession proceedings on Nov. 23, 1979.


author: DENNIS, Justice,

text:
    Robert F. DOYLE v. STATE FARM (MUTUAL) INSURANCE COMPANY, Toleda L. Weldon and American Motors Corporation.
    No. 81-C-3141.
    Supreme Court of Louisiana.
    June 4, 1982.
   DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority opinion indicates that the extent of damages may be relitigated between an insured and his uninsured motorist insurer in any case in which the issue is not precluded by res judicata. As the majority points out in its footnote number seven, its opinion is consistent with policy language which seeks to reserve to the uninsured motorist carrier the right to reliti-gate the issues of either liability or amount of damages when the insured litigates these issues against the tortfeasor without the carrier’s consent.

In my opinion, both the majority opinion and the policy clause are contrary to the uninsured motorist statute. Uninsured motorist coverage is required by law “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury....” La.R.S. 22:1406(D)(l)(a). An uninsured motor vehicle generally includes “an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured ... as agreed to by the parties and their insurers or as determined by final adjudication.” La.R.S. 22:1406(D)(2)(b). Thus, it is clear that the uninsured motorist carrier’s obligation to its insured is governed by the amount of damages to which the insured is legally entitled to recover by agreement or final judgment from an uninsured or under-insured motorist, regardless of whether the carrier is a party to such agreement or judgment. Moreover, if the tortfeasor and the uninsured motorist carrier are solidary debtors for the benefit of the victim creditor, then suit against one resulting in a satisfied judgment may bar suit against the other. See Granger v. General Motors Corp., 171 So.2d 720 (La.App. 1st Cir. 1965); 2 M. Planiol, Civil Law Treatise, pt 1, No. 760 at 408-409 (11th ed. La.St.L.Inst. trans. 1959).

Accordingly, the determinative issue in the present case is whether the amount of damages which Mr. Doyle is legally entitled to recover from Mrs. Weldon was agreed to by the parties or determined by final adjudication in the federal court suit. The majority opinion does not consider this issue at all. It is an issue which presents difficult problems and I cannot at this time say whether a careful consideration would lead the court to a different result. However, because I believe it, and not res judicata, is the ultimate issue of the case, I cannot join in the majority opinion.


author: ELLIS, Judge:

text:
    Roger Paul CARLINE v. Robbie Faye CAMP.
    No. 14373.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    On Rehearing May 25, 1982.

      Jack T. Marionneaux, Plaquemine, for plaintiff.
    Teddy W. Airhart, Jr., Baton Rouge, for defendant-appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit, brought by Roger Paul Carline for the custody of his natural son, Travis Paul Carline, born April 12, 1979. Defendant is Robbie Faye Camp (now wife of Allen R. Smith), the natural mother of the child, who reconvened for custody to be granted to her.

Trial was held, and a judgment was rendered granting temporary custody of Travis to Mr. and Mrs. Leonard Kohn, his uncle and aunt, pending a protective service investigation by the Department of Health and Human Resources. After receipt of the report from the Department, and without a further hearing, judgment was rendered granting permanent custody of the child to Mr. and Mrs. Kohn, with reasonable visitation rights being granted to both natural parents. From that judgment, only Mrs. Smith has appealed.

In this court, Mrs. Smith objects to custody being granted to persons who are not parties to the suit nor mentioned in the pleadings. She further alleges that the trial court erred in ordering an investigation by the Department and in admitting it into evidence over her objection. Finally, it is argued that there was no evidence to show that she was unfit, that there was no compelling reason for denying her custody, and that the court erred in not placing the burden of proof in those respects on plaintiff Carline.

The record shows that Mr. Carline and Mrs. Smith lived together out of wedlock for about five years, and that Travis was the issue of their relationship. Mrs. Smith left Mr. Carline in February, 1980, and moved to Baton Rouge, taking Travis with her. On April 6, 1980, she brought Travis to Iberville Parish to visit Mr. Carline. When she returned to pick up Travis on April 9, Mr. Carline refused to return Travis to her. This suit was filed on April 10, 1980, and Mr. Carline was granted provisional custody of the child by ex parte order. The custody hearing was held on April 23, 1980.

The competent evidence adduced at the hearing was to the effect that Mrs. Smith had been a good mother to Travis while she had him with her, both before and after her separation from Mr. Carline. She admitted that she had smoked marijuana before the child was born, but not since. Her present husband, whom she married on April 19, 1980, testified that he sometimes smoked marijuana, but had not done so for two months as of the time of the trial. He was steadily employed on an oil rig in Livingston Parish. They were living in a two-bedroom apartment, in which the child had his own room. Mrs. Smith testified that she would be with him all day, every day.

Mr. Carline testified that he was unemployed at the time of the hearing. He denied Mrs. Smith’s testimony that he was a heavy drinker. He testified that he wanted to place Travis with someone in his family, preferably his sister, Linda Kohn, and her husband, Leonard. He planned to reside in the same house.

Mr. Kohn testified that he was buying his own four-bedroom home, in which there was room for plaintiff and Travis. He is the husband of Mr. Carline’s sister, Linda, and they have four children of their own, aged between eleven and three. Mrs. Kohn also works full time, and there is someone who takes care of their children who would also care for Travis during the day.

It is clear that the trial judge was without authority to grant custody to Mr. and Mrs. Kohn. They were not parties to the suit and had no standing in court. It is hornbook law that courts cannot adjudicate the rights of those who are not parties to the case before it. See State, Dept. of Hwys. v. Lamar Adv. Co. of La., Inc., 279 So.2d 671 (La.1973).

We further agree that the report of the Department of Health and Human Resources was hearsay and should not have been considered by the trial judge, or admitted into evidence.

Finally, we find that the judge’s award of custody was clearly wrong in any event. Mrs. Smith is the natural mother of the child. The natural father, who is the plaintiff herein, stated on the witness stand that he was no longer seeking custody of their child. There is no evidence in the record to indicate that Mrs. Smith is in any way unfit to have custody of her child. The rule is that a parent “has the paramount right to the custody of the child, and may be deprived of that custody only when there are compelling reasons.” Wood v. Beard, 290 So.2d 675 (La.1974).

In the Wood case, supra, the court also said:

“When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights.”

There is no competent evidence in the record to show any unfitness or forfeiture of parental rights by Mrs. Smith. Under the circumstances of this case she is clearly entitled to the custody of her child. See also Deville v. La Grange, 388 So.2d 696 (La.1980); Duffie v. Duffie, 387 So.2d 654 (La.App. 1st Cir. 1980), writs denied 390 So.2d 1345 (La.1980).

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein in favor of Robbie Faye Camp, now wife of Allen R. Smith, awarding her the permanent care, custody, and control of her natural minor son, Travis Paul Carline. All costs of this proceeding shall be paid by Roger Paul Carline.

REVERSED AND RENDERED.

ON REHEARING

We granted a rehearing in this case on the representation that plaintiff had died prior to the rendition of our judgment herein. The evidence presented in response to our rehearing order indicates that Roger Paul Carline died on January 13,1981, prior to the time this record was lodged with our court. No explanation has been offered by plaintiff’s counsel as to why this information was withheld from the court until after judgment, thereby necessitating these post-judgment proceedings.

We have permitted the substitution as plaintiffs of Mr. and Mrs. Leonard Kohn, to whom the trial judge awarded custody of the minor child, although they were not, at that time, parties to the suit.

Our original opinion fully sets forth the facts of this case, and analyzes the legal issues presented. We do not find that our conclusion has been changed because of the death of Roger Paul Carline or the substitution of Mr. and Mrs. Kohn in his place as plaintiffs.

For the reasons assigned in our original opinion, the judgment appealed from is reversed, and there will be judgment herein in favor of Robbie Faye Camp and against Mr. and Mrs. Leonard Kohn, awarding to Robbie Faye Camp, now wife of Allen R. Smith, the permanent care, custody, and control of her natural child Travis Paul Carline. All costs of this proceeding shall be paid by plaintiffs.

REVERSED AND RENDERED.


author: MARVIN, Judge.

text:
    Willie REED, Plaintiff-Appellant, v. SUPERIOR MOTORS and Hartman Mitchell, Defendants-Appellees.
    No. 14874.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1982.
    Larry D. Jefferson, Monroe, for plaintiff-appellant.
    William E. Armstrong, Monroe, for defendants-appellees.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

After a judgment was orally pronounced rejecting the demands of each litigant, but before the judgment was signed, plaintiff perfected an appeal to this court. The judgment was signed several days later. Defendant moved to dismiss the appeal.

In Nomey v. State, Department of Highways, 325 So.2d 732 (La.App. 2d Cir. 1976), the identical situation was presented. We said:

“We believe it more in keeping with the spirit behind the Code of Civil Procedure to achieve an equitable and just result, that we adopt and follow the reasoning, authorities and rationale of the cases cited in the footnote denying the dismissal of the appeal. Appeals are favored under the law and the signing of the judgment appealed from at a point close in time to the time the judgment was orally stated, cures the alleged defect of a premature appeal, especially where the judgment as signed is not substantially different from the oral judgment; where the adverse party (the appellee) is not prejudiced and is given fair notice ... of the aim and purpose of the appellant’s oral or written request to appeal, the court’s granting of the appeal and the perfection of the appeal. These factors are present here and we respectfully choose not to follow our learned brothers of the First Circuit by dismissing the appeal under these circumstances.” 325 So.2d at p. 733 (citations omitted.)

The Supreme Court adopted this rationale in Palmer v. Wren, 361 So.2d 1206 (La.1978).

Act 618 of 1979 thereafter amended C.C.P. Art. 1911 to provide:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

After this amendment, the Supreme Court reinstated an appeal which was dismissed by the appellate court under circumstances similar to those presented here. See Matter of Parker, 395 So.2d 373 (La.App. 1st Cir. 1981), appeal reinstated 399 So.2d 607 (La.1981). Compare Painter v. Continental Union Assurance Company, 407 So.2d 500 (La.App. 1st Cir. 1981).

Again we hold to the view as expressed in Nomey. Act 618 of 1979, in our opinion, does nothing more than statutorily reiterate the prior jurisprudential pronouncements that an appeal must be from a signed judgment. The appeal, originally premature, is not subject to dismissal if the judgment is later signed and is substantially the same as the judgment orally pronounced, and the appellee is given fair notice of the appellant’s intent to appeal, of the granting of the appeal, and of the perfection of the appeal. Nomey, Palmer, Parker, supra. Those circumstances are present here.

The motion to dismiss the appeal is denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. WARD PETERS INVESTMENT CO., INC., Defendant-Appellant, Pel-State Oil Company, Inc., Intervenor-Appellant.
    No. 14904.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1982.
    Rehearing Denied May 12, 1982.
    Milton C. Trichel, Jr., Neil Martin Trichel, Shreveport, for defendant-appellant and in-tervenor-appellant.
    Harvey Lee Hall, Bryan Miller, Baton Rouge, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

In this action under L.R.S. 48:441, the State petitioned to expropriate a right of access line for 1-220 along the southerly 183.46 feet of defendants’ property. Defendants moved to dismiss the action on the grounds which include the contention that the property was not expropriated for a public use. L.R.S. 48:447.

The highway had been essentially completed and has been used by the public for some time before defendants’ motion was heard. Defendants presented evidence and argument on the grounds alleged in the motion to dismiss but did not present evidence or argument that the taking was not for a public purpose. The State introduced its petition and affidavits establishing a prima facie case that the right of access was for a public use.

The essential thrust of defendants’ complaints is not toward the alleged public purpose issue but toward the manner in which the expropriation power was exercised. Under these circumstances, we must find that defendants’ “motion” is in reality an exception based on several peremptory grounds.

Under these circumstances, a judgment overruling one or more peremptory exceptions is not an appealable judgment. C.C.P. 2083. Mauterer v. Tillery, 328 So.2d 755 (La.App. 1st Cir. 1976).

Exproprio motu, the appeal is dismissed and these proceedings are remanded at appellants’ cost.

      . Section 447 reads, in part:
      “Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public purpose may file a motion to dismiss the suit within ten days after the date on which the notice was served on him. He shall certify thereon that a copy thereof has been served personally or by mail on either the plaintiff or its attorney of record in the suit. This motion shall be tried contradictorily with the plaintiff to the judge alone and shall be decided prior to fixing the case for trial.”
      The other grounds which are alleged for dismissal are in the nature of exceptions. These alleged grounds include:
      “a. That Defendant’s right of access to North Market Street ... is a valuable property right, but its value has not been estimated or the amount thereof deposited in Court as required by R.S. 48:443 to 445, inclusive,
      “b. The present free access right-of-way of North Market Street ... through Defendant’s property was fixed and established through a compromise agreement between the State of Louisiana through its Department of Highways and Defendant’s ancestors in title in a prior expropriation suit in this Court and is final and res judicata as to the Plaintiff herein.
      “c. The existing ... right-of-way of North Market Street ... was granted to the State of Louisiana by Defendant’s ancestors in title ... without monetary payment in consideration of the advantages to be gained by having full access to North Market Street .. . but the State of Louisiana has not rescinded nor offered to rescind that grant nor to pay for the presently existing right-of-way ...
      “d. That Defendant’s right of access ... is a vested property right acquired by Defendant from the State of Louisiana, through its Department of Highways, for a good and adequate consideration ...
      “e. The Plaintiffs petition does not contain a certified copy of the Resolution adopted by the Board of Highways ... as required by R.S. 48:422(1)_
      “f. The Plaintiff’s petition does not contain a statement of the amount of money estimated to be just and adequate compensation for the pre-existing 200 foot right-of-way .. . through Defendant’s property granted to the State of Louisiana by Defendant’s ancestors. . .
      “g. The persons selected by the Right of Way Engineer to make the estimate of value and damages do not meet the requirements of R.S. 48:443 ...
      “h. That the estimate of value and damages attached to Plaintiff’s petition does not meet the requirements of law.”


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Milton C. TRICHEL, Jr., et al., Defendants-Appellees.
    No. 14913.
    Court of Appeal of Louisiana, Second Circuit.
    April 1, 1982.
    Rehearing Denied May 12, 1982.

    Bryan Miller, Johnie E. Branch, D. O. T. D., Baton Rouge, for plaintiff-appellant.
    Milton C. Trichel, Jr., Neil Martin Trichel, Shreveport, Eileen Trichel Baldwin, J. D., Roanoke, Va., for defendants-appellees.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.

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

   MARVIN, Judge.

The dispute between these litigants first came to our attention as State, Department of Highways v. Trichel, 348 So.2d 1260 (La.App.2d Cir. 1977) which arose out of the State’s expropriation in 1975 of the southernmost .892 acres of defendants’ property. In dispute there was a 523.54' right of access to the highway(s) extending northerly from the expropriated .892 acres.

We there held that the State had not expropriated the 523.54' right of access. After the expropriation of the .892 acres was filed and before our opinion was rendered, defendants filed a possessory action, alleging as a disturbance in fact the State’s appropriation and fencing of the right of access. The State then apparently ceased the fencing of the right of access line.

After our opinion, the State attempted to amend its pleadings in the expropriation action to include the expropriation of the 523.54' right of access. Defendants peremptorily excepted and filed a motion to dismiss.

Later and when the State resumed its efforts to fence the right of access, defendants filed a second possessory action. The two possessory actions and the pending expropriation were consolidated for trial. The trial court gave judgment for the defendants (plaintiffs in the possessory action) and allowed the State 60 days in which to expropriate the right of access or institute a petitory action.

The State appeals the judgments in the three cases. Defendants move to dismiss the appeal in the expropriation on the ground that the judgment in that case merely stays the proceedings in the expropriation of the right of access. We take note that the highway (Interstate 220) has been constructed and opened to the public many months before the judgment complained of was rendered in October, 1981. The judgment complained of orders the State to assert any claim of ownership or real right to the 523.54' right of access in a petitory action or in a properly filed expropriation action within a delay not to exceed 60 days.

The ultimate issue in all of these cases and in the existing appropriation to whatever degree, or the expropriation to be filed, of the right of access concerns the award of damages for the deprivation of the right of access that the defendant-landowners enjoy or once enjoyed on the 523.54'. The State apparently does not contest the judgment maintaining defendants’ possession. The State also makes no contention of irreparable injury. C.C.P.Art. 2083. See Herlitz v. Hotel Investors, 396 So.2d 878 (La.1981); Stockstill v. Cotten, 280 La. 205, 88 So.2d 27 (1956); Dupont v. Dupont, 392 So.2d 158 (La.App. 1st Cir. 1980).

Under these circumstances, we will dismiss the appeal but will allow the State a further delay from the date this opinion becomes final to institute in accordance with law an expropriation action for the 523.54' right of access the State desires to fence. See Trichel, supra.

The appeal is dismissed at the cost of the State insofar as the State may be legally responsible for costs and the case is remanded for further proceedings consistent with this opinion.


author: HALL, Judge.

text:
    Mrs. Mary Katherine JONES and James E. Jones, Plaintiffs-Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, et al., Defendants-Appellees.
    No. 14807.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Jack D. Barnett, Shreveport, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee, Prudential Ins. Co. of America.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendant-appellee, Cameron Iron Works, Inc.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

Plaintiffs appeal from the ruling of the trial court granting defendant insurer’s motion for summary judgment and dismissing plaintiffs’ suit seeking maternity benefits under a group hospitalization policy issued by defendant to plaintiff husband’s former employer. Finding that there are genuine issues of material fact precluding a finding that defendant is entitled to judgment as a matter of law, we reverse and remand for further proceedings.

Plaintiff James Jones had been employed by Cameron Iron Works, Inc. (Cameron) for approximately 10 years. He and his dependents were covered under a group hospitalization policy issued to Cameron by the defendant. Because the policy did not cover medical expenses incurred in a normal pregnancy, plaintiffs purchased optional maternity expense insurance provided by the defendant which generally covered hospital expenses and the doctor’s fee for the obstetrical procedure.

Effective April 29, 1979, the group hospitalization policy was modified to treat pregnancy as any other illness covered by the policy. Cameron notified its employees of the modification in the policy and advised that the optional maternity insurance could be canceled and that the cancellation would not affect the new benefits under the group medical policy. On May 22, 1979 plaintiff husband signed a cancellation of his optional maternity insurance but, because he had some question about the effect of the cancellation, he did not put an effective date for the cancellation in the blank provided. The plaintiff alleges that he enclosed with his cancellation notice a note requesting that he be notified if there was any reason for him to keep the optional maternity insurance. There is no indication in the record that the defendant insurer or the employer responded to plaintiff’s request for information.

Plaintiffs were involved in an automobile accident on May 23, 1979 in which plaintiff James Jones sustained injuries which eventually resulted in his total disability. Plaintiff continued to work for Cameron but frequently required the assistance of other employees in order to complete his job duties. By August 1979 Cameron had acknowledged that plaintiff was no longer able to actively engage in work on a full-time basis. Plaintiff was terminated from his employment on September 17, 1979 for “unsatisfactory job performance.”

Mary Katherine Jones became pregnant in late August 1979, prior to the time her husband was discharged from Cameron. Plaintiffs believed that the defendant would pay maternity expenses under the group policy but were later advised by an employee of the hospital chosen for the delivery that defendant would not pay medical expenses because plaintiffs were no longer covered under Cameron’s group policy. Plaintiffs then filed suit seeking a judgment declaring that the group policy covered medical expenses which would be incurred in the delivery of plaintiffs’ baby and also seeking penalties and attorney fees.

Plaintiffs’ baby was born May 3, 1980, prior to the time this matter was decided below. Plaintiffs filed a supplemental and amending petition seeking reimbursement of maternity expenses alleged to be covered under the group policy. Defendant filed a motion for summary judgment to which were attached pertinent excerpts from the group policy, the depositions of the plaintiffs and the cancellation of optional maternity expense insurance signed by James Jones. Defendant alleged that plaintiffs’ coverage under the group policy terminated at the end of the month in which Jones’s employment with Cameron terminated and that plaintiffs’ optional maternity expense insurance had been canceled effective May 22, 1979.

Plaintiffs filed an opposition to the motion alleging that the cancellation form signed by James Jones was invalid and asserting that plaintiffs were still covered individuals under the Cameron group policy.

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. A summary judgment is warranted only when reasonable minds must inevitably conclude from the facts before the court that the mover is entitled to judgment as a matter of law. The mover must carry the burden of showing that there is not a genuine issue of material fact in dispute. Any doubt is to be resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981) and cases cited therein. After reviewing the pleadings and other documents submitted by the parties we find that there are at least two issues of material fact which cannot be resolved by reference to the information contained in the record.

The first factual dispute arises in connection with the alleged cancellation by Jones of his optional maternity expense insurance. As noted above, Jones did not assign an effective date for cancellation of coverage in the blank provided for that purpose on the cancellation form. The fact that he did not complete the cancellation form and the fact that he requested that he be informed if he needed to keep the optional maternity coverage raises the question of whether the plaintiff conditioned his cancellation of the optional maternity coverage upon further advice as to whether he needed to retain it. The effective date of the cancellation was not filled in on the form by the insurance company and remains blank. The record does not show whether Jones continued to pay premiums for this coverage. There is a genuine issue of material fact regarding whether the optional maternity coverage was effectively canceled. This factual dispute is not satisfactorily resolved by Jones’s deposition, the incomplete cancellation form, or by other information contained in the record.

The second factual dispute concerns the effect of the termination of plaintiff’s employment on the termination of insurance coverage under the group hospitalization policy. Under the terms of the group hospitalization policy, an employee’s dependents remain covered under the policy as long as the employee remains a covered individual. The policy provides that an employee’s insurance automatically terminates when his employment is terminated. An employee’s employment is deemed to terminate when the employee is no longer actively engaged in work on a full-time basis; provided, however, that the policyholder (Cameron) may consider the employee as not having terminated his employment for insurance purposes when the employee’s absence from work is due to disability.

Although Jones’s termination notice states that he was discharged for unsatisfactory job performance, his deposition indicates that, because of his disability, he was no longer able to perform many of the duties required by his job. Plaintiffs contend on appeal that Jones’s absence from work is due to his disability while defendant contends that Jones was discharged while he was disabled but not because he was disabled.

Whether Jones was discharged for inability due to his disability to perform the necessary duties of his job or for some other reason may be relevant to the determination of whether he is still an insured under the group policy. Additionally, Cameron’s policy regarding continuation of insurance benefits for employees absent from work because of disability may be relevant. Defendant has not carried its burden of showing that there are not issues of material fact in dispute relating to termination of coverage under the group policy.

There are material fact issues yet to be resolved, and defendant is not entitled to judgment as a matter of law.

For the reasons assigned the judgment of the trial court granting defendant’s motion for summary judgment is reversed, the motion for summary judgment is overruled, and this case is remanded to the district court for further proceedings. Costs of this appeal are assessed to the defendant, The Prudential Insurance Company of America.

Reversed and remanded.