author: CUTRER, Judge.

text:
    Michael J. MEDUS, Plaintiff-Appellant, v. Mathilda Thibodeaux MEDUS, Defendant-Appellee.
    No. 8580.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Pucheu, Pucheu & Pucheu, Jacque B. Pu-cheu, Eunice, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This custody matter is appealed to this court for the second time. The two appeals arose from the alleged conflict of jurisdiction between the City Court of the City of Eunice, sitting as the Juvenile Court (City Court), and the Twenty-Seventh Judicial District Court, St. Landry Parish, Louisiana.

On the original appeal this court reversed and remanded the matter “for the taking of further evidence in order to clarify the juvenile court’s position.”

Upon remand, the district court took further evidence and found that the procedural requirements had been met by the City Court and that such court had exclusive jurisdiction of the proceedings. The district court again sustained an exception to its jurisdiction. The husband’s rule for custody of his four children was dismissed and he appeals for the second time.

Due to the procedural complexity of this case, we shall reiterate the facts which reflect the background for this appeal.

On May 12, 1977, the district court, in an uncontested proceeding, rendered a judgment of divorce in favor of Michael J. Me-dus against his wife, Mathilda. Michael agreed that the custody of the four children born of the marriage should go to the mother. The judgment included such custody order.

On May 19, 1977, Michael Medus, represented by counsel, pleaded guilty in the City Court of Eunice to the charge of non-support. He was sentenced to four months in jail. The sentence was suspended on the condition that Medus pay child support for his four children.

On May 24, 1978, a hearing was had in the City Court, sitting as a juvenile court, wherein the court awarded custody of the children to the father, Michael. The briefs of both parties refer to this first hearing as a voluntary relinquishment of the custody of the children to the juvenile court under the provisions of LSA-R.S. 13:1570(C). (This statute will be discussed later in this opinion.) The order of the juvenile court states as follows:

“IT IS ORDERED AND DECREED that the juveniles, Christopher Shane Me-dus, Douglas Anthony Medus, Corina Lynn Medus, and Leta Marie Medus be and the same is hereby placed in the custody of MICHAEL JAMES MEDUS whose address is 100 Prairie Street, Eunice, Louisiana 70535 to be kept within the jurisdiction of this Court pending further orders.” (Emphasis added.)

On March 26, 1979, a hearing was had in the same court entitled “State of Louisiana, in the Interest of Christopher Shane Medus, Douglas Anthony Medus, Corina Lynn Me-dus, and Leta Marie Medus.” The minutes of the court proceedings reflect as follow:

“This hearing was regularly set for this date. Present: Helen Castellini, Welfare Social Worker, Department of Health and Human Development; the mother, Math-ilda Thibodeaux Medus; the father, Michael Medus, who was represented by his attorney, Donald Mayeaux, who was also present.
“Considering the testimony of Mrs. Helen 0. Castellini which is summarized in her written report as well as the testimony of the mother. The Court feels that it is in the best interest of the children that the children be returned to the custody of their natural mother, Mathilda Thibodeaux Medus, but to remain in the home of maternal grandmother, Grace Thibodeaux, 650 Tate Street, Eunice, Louisiana, where the mother now resides, therefore.
“IT IS HEREBY ORDERED that the children, Shane Medus, Douglas Medus, Corina Medus, and Leta Medus, be returned to the custody of their natural mother, Mathilda Thibodeaux Medus, 650 Tate Street, Eunice, Louisiana.
“IT IS FURTHER ORDERED that the mother attend a parenting class at the Crowley Mental Health Center and prohibits the children from being in the company of Carroll Arabie until at least a psychological report can be obtained from the Crowley Mental Health Center on Carroll Arabie.
“IT IS FURTHER ORDERED that the situation be monitored by the Office of Human Development in order to see that the placement occurs with fewest possible problems.”

A custody order was issued by the City Court stating:

‘ “IT IS ORDERED AND DECREED that the juvenile [sic] Christoper Shane Medus, Douglas Anthony Medus, Corina Lynn Medus, and Leta Marie Medus be and the same is hereby placed in the custody of Mathilda Thibodeaux Medus whose address is 650 Tate Street, Eunice, Louisiana to be kept within the jurisdiction of this Court pending further orders.’’ (Emphasis added.)

No appeal was taken from this order.

Ten days later, on April 5, 1979, Michael filed a rule for the mother to show cause why he should not be granted custody of the children. This rule, filed in the Twenty-Seventh Judicial District Court for St. Landry Parish, was successfully met by an exception of jurisdiction from which judgment Michael filed the first appeal herein. Upon remand the district court ruled that the City Court had exclusive jurisdiction under the provisions of the Louisiana Code of Juvenile Procedure (C.J.P.) Article 17(A)(2).

The issue on this appeal is whether the trial court erred in granting the exception of jurisdiction.

The first hearing in the City Court, on May 24, 1978, awarding custody to the father, was held under the provisions of LSA-R.S. 13:1570(C) as the C.J.P. did not become effective until January 1, 1979. This statute provides as follows:

“Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
* * * * * *
C. To award the custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual when the parent or other person having custody or care of the child wishes to relinquish custody or care for the purpose of enabling the child to receive adequate care and protection.” (Emphasis added.)

The second hearing on March 26, 1979, was held under the provisions of the Code of Juvenile Procedure Article 17(A)(2). This article is a substantial restatement of LSA-R.S. 13:1570(C). These two provisions, insofar as the issue before us is concerned, will be treated as being the same.

The first hearing of the City Court, being a voluntary relinquishment proceeding, was authorized by LSA-R.S. 13:1570(C) [now C.J.P. 17(A)(2) ]. These provisions authorized a juvenile court (City Court in this case) to award custody of the children to an individual (the father) when the mother, who had custody, voluntarily surrendered or relinquished such custody to the City Court to enable the children to receive adequate care and protection. When the mother invoked the juvenile jurisdiction of the City Court, such court clearly had exclusive original jurisdiction to conduct the surrender hearing and make a determination of the temporary placement of the children under the authority of LSA-R.S. 13:1570(C) [now C.J.P. art. 17(A)(2) ]. This brings us to the question of whether the City Court retained such exclusive jurisdiction to terminate the temporary custody and return of the children to the mother.

The original exclusive jurisdiction conferred by C.J.P. art. 17(A)(2) does not terminate with the temporary placement of the children in the voluntary surrender proceedings. Once such jurisdiction attached to the City Court, it continued to exist including a proceeding by the surrendering parent to obtain the return of the children.

A parent who voluntarily surrenders children which are in his or her custody consents to the court’s temporary placement of the children. Such consent, however, is revocable and, upon becoming able to again provide adequate care and protection to the children, the surrendering parent has a parental right to return to the same juvenile court which placed the children, and request their return to his or her custody. The surrendering parent does not lose the parental right of return unless the children, after a contradictory hearing, have been adjudicated abandoned, neglected, abused or delinquent. There is no contention that such adjudication existed in this case. For a discussion of this subject, see the cases of: Bailey v. Dept. of Health & Human Resources, 399 So.2d 798 (La.App. 3rd Cir. 1981); In Interest of May, 385 So.2d 910 (La.App. 2nd Cir. 1980); and Dillon v. State, 336 So.2d 1066 (La.App. 2nd Cir. 1976). We conclude that both of the proceedings conducted by the City Court were authorized by LSA-R.S. 13 ¡1570(C) and C.J.P. art. 17(A)(2). The jurisdiction of the City Court to make such determinations was exclusive under these provisions.

Michael Medus contends that paragraph (B) of C.J.P. art. 17 maintains the continuing jurisdiction of the district court, thus the district court has jurisdiction to decide the custody rule filed by him. Paragraph (B) of art. 17 reads as follows:

“B. Except to the extent that a court exercising juvenile jurisdiction has determined custody of a child in a judgment of disposition after the child has been adjudicated delinquent, in need of supervision, or in need of care, nothing contained in Articles 14 through 17 shall deprive courts exercising civil jurisdiction of the right to determine custody of a child under writs of habeas corpus or other proceedings, or to determine the custody of a child when such custody is incidental to the determination of cases pending in such courts.”

Medus argues that under art. 17(B) the mother must show that the children were adjudicated to be delinquent, in need of supervision, or in need of care. Such adjudication can only be initiated by a petition, C.J.P. art. 45, as such proceeding is only authorized by C.J.P. art. 15. In our opinion rendered in the first appeal we adopted such a view and remanded for further evidence to ascertain whether such adjudication by petition had been initiated in the City Court. We felt that if such an adjudication had not been made by the City Court, then it would not have had exclusive jurisdiction. Upon this appeal, however, we find that the proceeding was one of a revocation of voluntary relinquishment of custody by the mother and not an adjudication by the City Court finding the children to be delinquent, in need of supervision, or in need of care. The proceedings of the City Court were held pursuant to art. 17(A)(2) and they do not require a petition as set forth in art. 45.

In order to clarify any confusion that may have been created by our opinion in the first appeal, Medus v. Medus, supra, and to give effect to art. 17(A)(2), we interpret these provisions as follows: where a parent wishes to voluntarily relinquish custody of a child, the juvenile court (City Court), has exclusive original jurisdiction, which jurisdiction cannot be divested by any subsequent district court proceedings. LSA-C.J.P. art. 17(A)(2). Such exclusive jurisdiction extends, not only to the surrender proceedings, but includes any revocation or return proceedings filed by the surrendering parent in such court. Under paragraph (B) the exclusive jurisdiction of such juvenile court (City Court) is “limited” in only two instances. The district court may hear proceedings where custody is being determined by a writ of habeas corpus. Also, the district court may determine custody which is incidental to the determination of cases pending in courts with civil jurisdiction. In these two instances, only, can the jurisdiction of the juvenile court (City Court) be divested. However, the district court cannot divest the juvenile court of jurisdiction even in these two instances if there has been a prior adjudication by the juvenile court finding the child to be delinquent, in need of supervision, or in need of care. To interpret paragraph (B) otherwise would negate the effect of art. 17(A)(2) and the intent of the Code of Juvenile Procedure.

We hold that the City Court had exclusive jurisdiction to hear the juvenile proceedings filed herein. This finding by the district court was correct and its sustaining of the exception of the lack of jurisdiction will be affirmed.

For the reasons assigned, the judgment of the district court is affirmed. Michael Medus shall pay all costs of this appeal.

AFFIRMED.

      . Medus v. Medus, 379 So.2d 21 (La.App. 3rd Cir. 1979), writ den., 381 So.2d 1235 (La.1980).

      . LSA C.J.P. 17(A)(2) provides, in part, as follows:
      “A. A court exercising juvenile jurisdiction shall have exclusive original jurisdiction, in conformity with any special rules prescribed by law, in the following cases:

      (2) Proceedings to award custody of a child domiciled within the parish or who is actually in the parish to an agency, institution or individual, when the parent wishes to relinquish custody or care for the purpose of enabling the child to receive care and protection.”

      . LSA-C.J.P. art. 45 provides:
      “A proceeding under Article 15 shall be commenced by petition.”

      . LSA-C.J.P. art. 15 provides, in part:
      “Except as otherwise provided herein, a court exercising juvenile jurisdiction shall have exclusive original jurisdiction over the following proceeding:
      A. A proceeding in which a child is alleged to be a delinquent child; ...
      * * # * * #
      B. A proceeding in which a child is alleged to be in need of supervision;
      C. A proceeding in which a child is alleged to be in need of care.”


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Mark SILER, Plaintiff-Appellant, v. Robert GUILLOTTE, Allstate Insurance Company, Louisiana Department of Transportation, and Pearson Construction Company, Defendants-Appellees.
    No. 8584.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Rehearing Denied March 23, 1982.

      Corne & Block, Louis M. Come, and Fruge & DeJean, Kenneth W. DeJean, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, D. Mark Bienvenu, Lafayette, John W. King, Baton Rouge, for defendants-appellees.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

This case is one of two tort actions based upon common facts which were consolidated for trial in the interest of judicial expediency. The cases remain consolidated on appeal and we this day render a separate decision in the companion matter entitled Allen Chevalier v. Robert Guillotte, et al., 410 So.2d 1271.

Plaintiffs, Mark Siler and Allen Chevalier, filed separate tort actions against defendants, Robert Guillotte, his insurer, Allstate Insurance Company (hereafter Allstate), Pearson Construction Company (hereafter Pearson), and the State of Louisiana, through the Department of Transportation and Development (hereafter DOTD), for damages resulting from an automobile-truck collision occurring at the intersectional interchanges of I — 10 West and Highway 167. Guillotte and his insurer filed answer denying any responsibility for the accident and in the alternative alleging contributory negligence on the part of plaintiffs. By third party demand Guillotte and his insurer sought indemnification and/or contribution from Pearson and DOTD. Guillotte’s demand for indemnification and/or contribution was based on his contention that traffic control devices in the vicinity of the accident were inadequate to warn motorists of abnormal, dangerous traffic conditions existing in that section of the highway. Third party demands for indemnification and/or contribution were also filed by Pearson against DOTD and DOTD against Guil-lotte, his insurer, and Pearson and their insurer, American Fidelity Fire Insurance Company.

On August 25, 1980, a partial judgment of dismissal was rendered by the trial court dismissing plaintiffs’ suits against Guillotte and his insurer due to a settlement reached by the aforesaid parties. However, the plaintiffs, Siler and Chevalier, reserved all rights against Pearson and DOTD and agreed to assume responsibility, if any, for any judgment rendered against Guillotte and Allstate pursuant to DOTD’s third party demand. Plaintiffs’ suit against Pearson was tried to a jury which concluded that Robert Guillotte was negligent and that his negligence was the sole cause of the accident. Plaintiffs’ suits against DOTD were tried by the district judge who also concluded that the sole cause of the accident was Robert Guillotte’s negligence. A judgment dismissing plaintiffs’ claims against DOTD and Pearson was signed on January 21, 1980. Plaintiffs appeal.

On October 11, 1977, plaintiffs were involved in an automobile-truck collision in the Parish of Lafayette, Louisiana at the intersectional interchange of Louisiana Highway 167 and U. S. Interstate 10. Louisiana Highway 167 is a four lane separated highway running generally north and south. U. S. Interstate 10 is a four lane separated highway running generally east and west. The record reflects that defendant, Pearson, had contracted with DOTD to perform certain repairs on the I — 10 overpass which crosses over Highway 167. The repair work necessitated the closing of the northbound two lanes of Highway 167 as it passes under the overpass. Northbound traffic on that roadway was re-routed from the northbound lanes of traffic to the easternmost southbound lane of Highway 167. This was accomplished by a cross over road some distance from the overpass where traffic in the northbound lanes would cross over to the easternmost southbound lane. In other words, for some distance north and south of the overpass Highway 167 accommodated two-way traffic.

On the aforesaid date, the Siler vehicle, which was traveling north on Highway 167, entered the detour section, crossed over to the southbound lane in accordance with traffic directives, and entered the easternmost lane of the two-way traffic detour. After traveling a short distance, at a point almost to the overpass, while Siler was in his proper lane of travel, an automobile driven by Robert Guillotte crossed from the opposite lane of travel into plaintiffs’ lane and crashed head-on into the Siler vehicle. Both plaintiffs sustained substantial injuries as a result of the collision.

The following issues are presented on appeal: (1) Did the trial court err in refusing to permit plaintiffs to present evidence regarding the non-negligence of Robert Guil-lotte; and, (2) Did the trial court and jury err in concluding that Robert Guillotte’s negligence was the sole cause in fact of the accident.

Appellants’ first specification of error is based upon a ruling by the trial court sustaining objection to evidence sought to be introduced by the plaintiffs tending to exonerate Robert Guillotte from negligence, which was a proximate cause of the accident. The objection was made prior to plaintiffs calling Robert Guillotte on direct examination. The basis for the defendants’ objection and the court’s ruling was that plaintiffs in their pleadings alleged that the accident was caused by the joint and concurrent negligence of all defendants and had thereby judicially confessed the negligence of Robert Guillotte.

A somewhat similar issue was presented in Wall v. American Employers Insurance Company, 386 So.2d 79 (La.1980). In Wall, our Supreme Court concluded that the Court of Appeal erred in determining, as a procedural matter, that plaintiffs were bound by their original and amended pleadings filed at the commencement of the litigation, before settlement with and release of two alleged tortfeasors, such that the judgment ultimately rendered against the unreleased tortfeasor entitled the remaining defendant to a reduction of that judgment. In reaching this conclusion, the Supreme Court stated:

“.... Here plaintiffs settled with and released two of the three defendants well before trial. Aware of the release, defendant itself raised in its supplemental answer to the petition the issue of the negligence of the released co-defendants and prayed that if judgment be for the plaintiffs, the judgment be reduced because of the release of the two co-defendants. And while plaintiffs did not amend their original petition in which they alleged the joint and concurrent negligence of all defendants, plaintiffs did introduce without objection from defendant evidence of lack of fault on the part of the two released co-defendants.
In this case as in Hall [Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973)] the issue of the co-defendants’ fault or lack thereof was fully and completely litigated at trial. Defendant did not object to the introduction of the evidence of the released co-defendants’ lack of fault; nor did it at or before trial contend that plaintiffs had judicially confessed the released co-defendants’ negligence in their pleadings. Consequently defendant must be held to have consented to expansion of the pleadings by introduction of the evidence.3 Had defendant objected, showing his lack of express or implied consent, then the trial court could have allowed plaintiffs to amend their petition.4 An objection at that time would possibly have facilitated amendment of the petition and would have obviated this procedural problem.
We therefore conclude that plaintiffs are not bound by their allegations in the original petition, for the pleadings were amended by implied consent of the parties to charge exclusive fault on the part of the police jury. The Court of Appeal’s reliance upon the allegations in plaintiffs’ original petition was erroneous.” (footnotes omitted).

Unlike Wall, the defendants in this case timely objected to the introduction of such evidence and plaintiffs did not seek to amend their pleadings pursuant to LSA-C. C.P. Article 1154 to alleged exclusive fault on the part of the remaining defendant.

The issue presented is close. However, we conclude that we need not categorically decide whether the trial court’s ruling was in error. This is so because, even if erroneous, plaintiff suffered no prejudice as a result of this ruling. The record, in this case, reflects that the issue of Robert Guil-lotte’s fault or lack thereof was fully and completely litigated at trial such that there is an adequate record for this court to review and make a determination on that issue.

We now address appellants’ remaining specification of error. As stated, plaintiffs contend that the trial judge and the jury erred in concluding that Robert Guil-lotte’s negligence was the sole cause in fact of plaintiffs’ injuries. In this regard, plaintiffs allege that both Pearson and DOTD were negligent in failing to erect adequate warning signs and road markings advising Guillotte of the two-way traffic zone existing at the intersection of U.S. I — 10 and Louisiana Highway 167, and that such negligence was the cause in fact of plaintiffs’ damages.

At trial Guillotte testified that prior to the accident he had been at a local bar where he drank a few beers with three friends. Shortly thereafter, he and his friends left the bar in Guillotte’s automobile. He stated that he drove via U. S. 1-10 East to Breaux Bridge, Louisiana where he immediately turned around and began driving in a westerly direction on I-10 towards Lafayette. Guillotte testified that he exited I — 10 West onto the ramp which intersects with Highway 167. At the end of the ramp, Guillotte proceeded south traveling in the so-called “merge lane” which runs parallel to the southbound lanes of Highway 167. Guillotte stated that he merged into the westernmost lane of 167 traveling south, and shortly thereafter, he maneuvered his automobile into the easternmost lane of traffic where he struck plaintiffs’ vehicle. Guillotte testified that prior to the collision, he saw no warning signs or regulatory road markings advising him of the road construction ahead nor of the conversion of the two-lane southbound roadway to a two-way traffic situation.

Officer Kenneth Holleman, who investigated the accident for the Lafayette City Police, testified that he retraced Guillotte’s path of travel just prior to the accident and noted the following warning signs and road markings: (1) Two (2) large “Construction Ahead” signs located on both the right and left sides of the I — 10 exit ramp; (2) Two (2) Two-way Traffic signs located on the right hand side at the bottom of the exit ramp, the first sign being immediately at the bottom of the ramp and the second situated approximately 75 to 100 feet further south; and, (3) Double broken yellow lines, one on each side of the single broken white line which divides the two lanes of traffic. Officer Holleman stated that during his investigation of the accident he detected the odor of marijuana emanating from the Guillotte vehicle. Upon closer observation, Holleman discovered the remains of two marijuana cigarettes in the vehicle’s ashtray along with other marijuana residue. In addition, Holleman confiscated a plastic bag containing marijuana which he discovered when checking the vehicle’s glove compartment for the automobile’s registration papers. Margaret Oelkers, a passenger in the Guillotte vehicle at the time of the accident, testified that she observed Guil-lotte smoking a home-rolled cigarette prior to the accident and that Guillotte told her it was marijuana. In addition, Oelkers corroborated Guillotte’s statement that he drank 2-3 beers at a local lounge prior to the accident.

Plaintiffs’ expert witness, Dwayne Evans, a consulting engineer, opined that the area adjacent to the accident site was not adequately signed so as to advise oncoming motorists of the two-way traffic situation ahead. In this regard, Evans indicated that at the very minimum, there should have been more than two two-way traffic warning signs located at regular intervals along the roadway, and also, that there should have been a solid double yellow line advising motorists that passing vehicles on this particular stretch of highway was not allowed. In addition, Evans opined that motorists exiting the ramp onto Highway 167 would be looking to their left and northward to determine if they could merge with the southbound traffic, therefore, the two two-way traffic signs situated at the end of the ramp on the motorists’ right hand side would be ineffective to warn motorists of the two-way traffic situation ahead. Also, Evans testified that double broken yellow lines are meaningless road markings and not provided for in the Manual on Uniform Traffic Control Devices which governs the placement of traffic control devices existing on our state’s highways.

Irvin Deranger, State project engineer for the U.S. I-10-Louisiana Highway 167 construction project, testified that the project plans were prepared by the State and that he was in charge of DOTD personnel at the construction site. Deranger stated that all of the warning signs and road markings required by the plans were put in place properly by Pearson. In addition, Deranger testified that he and Larry Harry, a State traffic, engineer, authorized the use of double broken yellow lines in the two-way traffic zone. In so doing, Deran-ger explained, both he and Harry concluded that passing in the construction zone should not be totally prohibited because there are times when traffic is minimal at this particular segment of highway. Thus, Deranger stated, under certain circumstances, passing should be permitted to aid the free flow of traffic. Deranger further testified that the first sign warning motorists of the two-way traffic zone ahead is visible to oncoming motorists while they are still on the ramp. In regard to the duties and responsibilities of Pearson, Deranger stated that Pearson was not in charge of designating what type of signs or road markings should be utilized, but rather, was merely in charge of seeing that such signs and road markings were placed in accordance with the State project plans.

Larry Harry testified at trial that the solid double yellow lines suggested for placement by the Manual on Uniform Traffic Control Devices were not mandatory and that the manual permits the exercise of professional engineering judgment, in determining what particular signs and markings are necessary in a specific situation. Harry’s testimony essentially tracked that of Deranger. He stated that the reason no warning signs were placed on the left hand side of the roadway, as suggested by plaintiffs’ expert witness, was that to situate signs in that position would not necessarily impart to motorists exiting the ramp that that particular warning was for them. Rather, motorists traveling south on Highway 167 would presume that the sign was meant for them which would serve no purpose as such motorists were already apprised of the two-way traffic situation by previous warning signs. Although Harry admitted that supplemental signs located on the left side of highways is permissible, he stated that in his professional judgment, he did not feel such supplemental signs were necessary in the present situation.

Defense expert witness, Neil E. Walton, a civil engineer, who is an expert in the fields of highway engineering and traffic and human factor engineering, stated that after reviewing the project plans and specifications, the accident report, and the testimony received at trial, it was his professional opinion that the warning signs and regulatory road markings existing at the time of the accident were adequate to warn the reasonably prudent motorist of the changed traffic situation encountered by oncoming motorists at the highway area under construction.

Finally, Rees Gideon, a State engineering aide 4, whose duties and responsibilities include inspecting all warning signs and road markings on a daily basis, testified that according to his daily diary sheets, all warning signs and road markings were in place and in good condition on the morning before and after the accident.

In Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), writ refused, 312 So.2d 340 (La.1975), our court set forth the duty owed by the Department of Highways to motorists traveling on Louisiana’s roadways by stating:

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).”

See also Desselle v. State, Department of Public Highways, 328 So.2d 389 (La.App. 3rd Cir. 1976). The principles above set forth apply as well during the course of construction or repair of highways. As stated in Brandon v. State, Through Department of Highways, 367 So.2d 137 (La.App. 2d Cir. 1979), writ denied, 369 So.2d 141 (La.1979), the Department’s duty during the course of construction is usually discharged by the giving of adequate warning.

Our court in Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975), writ refused, 309 So.2d 681 (La.1975), in setting forth the duty owed by motorists traveling on our State’s highways, stated:

“The driver of a motor vehicle has the duty to maintain a lookout and to see that which an ordinary reasonable motorist would have seen under the circumstances .... ”

After carefully reviewing the record, we conclude that neither the trial court nor the jury erred in concluding that Robert Guil-lotte was negligent in the operation of his motor vehicle and that such negligence was the sole cause in fact of the accident. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975). In so concluding, we find Guillotte’s own testimony particularly noteworthy. He stated that he saw no warning signs or road markings of any kind prior to the accident. However, the record clearly establishes that several traffic control devices were in place at the time of the accident. Guillotte admitted that he had consumed some alcoholic beverages prior to the accident and the record reflects that Guillotte additionally smoked an undetermined quantity of marijuana before the collision. Presumably, the trial court and jury were influenced to some degree by Guillotte’s ingestion of such intoxicants. The trial judge specifically noted in his oral reasons for judgment, and we assume that the jury also concluded, that Guillotte failed in his duty to maintain a proper lookout. The trial court and jury accepted the testimony of defense experts who stated that the warning signs and road markings existing in the vicinity of the accident were adequate to advise reasonably prudent motorists of the two-way traffic zone ahead. We find no error in these conclusions.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . On th'e date of the accident, Mark Siler, driving a 1968 GMC pickup truck, was enroute to Rayne, Louisiana, accompanied by Allen Chevalier, a guest passenger.


text:
    Allen F. CHEVALIER, Plaintiff-Appellant, v. Robert R. GUILLOTTE, State of Louisiana, Through the Department of Transportation & Development, Pearson Construction Company and Allstate Insurance Company, Defendants-Appellees.
    No. 8583.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Corne & Block, Louis M. Corne, and Fruge & DeJean, Kenneth W. DeJean, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, D. Mark Bienvenu, Lafayette, John W. King, Baton Rouge, for defendants-appellees.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Mark Siler v. Guillotte, Allstate Insurance Company Louisiana, Department of Transportation, and Pearson Construction Company, 410 So.2d 1265, the judgment appealed from is affirmed.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Fred DARBY, Plaintiff & Appellee, v. Joseph D. LEMOINE, Hanover Insurance Company, Defendants & Appellants.
    No. 8585.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Franklin, Moore & Walsh, James R. Shelton, Opelousas, for defendants-appellants.
    Pavy, Hebert & Carriere, David L. Carri-ere, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit for damages arising out of an automobile accident. Plaintiff was driving his vehicle at night on a two-lane highway when he struck the vehicle driven by defendant Lemoine, which was on the highway in the process of pulling another vehicle out of the ditch. The trial judge found that the defendant Lemoine was negligent and that the plaintiff Darby was free of contributory negligence. The court awarded plaintiff the stipulated property damage and medical expenses in the sum of $1,967 and, in addition, awarded plaintiff the sum of $1,000 for general damages. Defendants appealed.

On appeal, defendants concede that Lem-oine was negligent, and that the quantum of the award is not excessive. The sole defense urged on appeal is that the plaintiff Darby was contributorily negligent.

The evidence shows that on November 8, 1979 between 7 and 8 o’clock p. m. the plaintiff, Fred Darby, was driving his Volkswagen automobile in a northerly direction on State Highway 29, which is a two-lane blacktop road. The weather was clear. Darby and his passenger, Ethel Hebert, testified they were going 40 to 45 miles per hour. The speed limit was 55. They drove around a curve and suddenly saw a pickup truck blocking their lane of travel. Plaintiff says he was only about 20 feet from the truck when he first saw it. He states he applied his brakes and tried to turn to the left, but that the front of his automobile struck the left front fender of the pickup.

The pickup was being driven by defendant Lemoine, 17 years of age. Just prior to the accident, Lemoine and his guest passenger, Kenneth Soileau, had been flagged down by Lemoine’s relative, Fred Fontenot, whose white Chevrolet automobile was in the ditch on the east side of the highway. At this location, Floyd’s Superett, a small grocery store, is located on the east side of the highway, and, at the time of the accident, there were two bridges from the highway into the blacktopped parking area in front of the store, one on the north and one on the south. In attempting to drive from the highway into the store parking lot, Fon-tenot had missed the bridge and driven his automobile head first down into the ditch between the two bridges. The ditch was about four feet deep and 15 to 20 feet wide.

Lemoine, using a. chain, first tried to pull the Fontenot automobile out of the ditch onto the store parking area, but he was unsuccessful. Then he moved his pickup truck onto the highway and attached the chain to the rear of the Fontenot automobile, but he was again unsuccessful in pulling the car out of the ditch. Lemoine testified he had just unhooked the chain, and was in his pickup truck, which was stationary across the north bound lane, headed west, when he noticed plaintiff's headlights and heard plaintiff’s brakes squeal. The collision ensued.

Fontenot testified that while Lemoine was trying to pull the car out of the ditch, he was standing on the east side of the highway, about 20 feet to the south, flagging traffic with a white handkerchief. Fontenot says six or seven cars approached from the south, saw his handkerchief and slowed down and turned into the south bridge, went through the parking area and back out on the north bridge to the highway. Fontenot says that he saw plaintiff approaching and flagged with his handkerchief, but that plaintiff did not even slow down. Fontenot says he had to jump out of the way.

There is a conflict in the testimony as to whether the pickup truck or the automobile in the ditch had their lights on as plaintiff approached from the south. Plaintiff and his passenger testified positively that they saw no lights on the pickup truck or the automobile in the ditch. Their testimony is corroborated to an extent by that of Trooper Fontenot, who arrived at the scene immediately after the accident. He testified that the pickup truck was still on the highway and it had no lights on. He also said the automobile in the ditch had no lights. But, of course, he did not know whether the lights were on at the time of impact.

On the other hand, defendant Lemoine and his witnesses, Kenneth Soileau and Fred Fontenot, testified that both the headlights and the parking lights on the pickup truck were on. Fontenot testified that the brake lights of his automobile in the ditch were on. Lemoine testified the car in the ditch had its parking lights on. Soileau could not remember whether the car in the ditch had any lights on.

There is also a conflict in the testimony as to the distance from the curve in the highway to the point of impact. Plaintiff testified it was about 160 feet. His passenger, Ethel Hebert, testified it was about 92 steps. Trooper Fontenot stated the distance was about Vi mile.

Neither plaintiff nor defendant contend there was any traffic approaching from the north which would have blinded plaintiff or prevented him from going around the truck.

Although the minute entry in the record states the trial judge gave oral reasons for judgment immediately following the trial, no such reasons are in the transcript. Insofar as we are able to determine, no reasons were given by the trial judge. Thus, we have no finding of fact by the court as to whether the lights of the pickup truck or the car in the ditch were on. Plaintiff argues the trial judge must have concluded the lights on these two vehicles were not on. It would be pure speculation for us to reach this conclusion. The trial judge may have concluded that even if the headlights on the pickup truck were on, the pickup truck was facing across the highway in a westerly direction so that plaintiff could not see them. A sketch in the record, made pursuant to the testimony of Fred Fonten-ot, even shows the pickup truck was pointed in a northwesterly direction, which would mean the headlights were pointed away from plaintiff’s approaching automobile.

Plaintiff argues, under his version of the facts that there were no lights on the pickup truck, that the applicable rule is stated in Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909 (1956); Stelly v. Fidelity & Casualty Company of N. Y., 201 So.2d 24 (La.App. 3rd Cir. 1967), writ refused; Sittig v. Southern Farm Bureau Casualty Insurance Company, 198 So.2d 514 (La.App. 3rd Cir. 1967), writ refused 200 So.2d 665 (La.1967); Shively v. Hare, 189 So.2d 12 (La.App. 1st Cir. 1966), and Woods v. Employers Liability Assurance Corporation, 172 So.2d 100 (La.App. 1st Cir. 1965). In all of these cases, a night motorist driving on the highway at a reasonable speed struck an unlighted vehicle. The courts applied the rule that a night motorist traveling at a lawful speed has the right to assume the road ahead is safe for travel to the" extent that he is not charged with the duty of guarding against striking unexpected or unusual obstructions which he had no reason to anticipate would be encountered on the highway, and that the motorist is not negligent in running into an unlighted, stopped or slow moving vehicle on the highway at night where there are no special conditions, such as fog, smoke, dust, etc., which would require reduction in speed or the exercise of extraordinary care.

On the other hand, defendants argue under their version of the facts that the lights on the pickup truck and at least the taillights on the automobile in the ditch were on, that plaintiff was negligent in not seeing the truck in time to stop or go around it. Defendants cite Haas v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 380 (La.App. 4th Cir. 1975), writ refused 323 So.2d 133 (La.1975); Chaisson v. J. Ray McDermott & Company, 324 So.2d 844 (La.App. 1st Cir. 1975), writ denied 328 So.2d 86 (La.1976); Maddox v. American Motorist Insurance Company, 325 So.2d 756 (La.App. 2d Cir. 1976); Youngblood v. Oil Well Chemical Company of Louisiana, 352 So.2d 316 (La.App. 4th Cir. 1977), and Rowe v. Travelers Insurance Company, 219 So.2d 486 (La.1969). In all of these cases the court held the night motorist was negligent in striking a lighted vehicle stopped or moving slowly on the highway.

This is a close case, particularly because the trial judge made no finding of fact as to whether the lights of the pickup truck were on. Nevertheless, as stated above, the trial judge could have reasonably found that even if the headlights of the pickup were on, plaintiff could not see them because they were pointed away from plaintiff’s approaching vehicle. Also, the pickup taillights were not shining toward plaintiff. Under all of the circumstances, we are unable to find the trial judge was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

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

AFFIRMED.


author: FORET, Judge. CULPEPPER, Judge,

text:
    Otha J. CUTRIGHT, Plaintiff-Appellant, v. Harold E. WILSON, Defendant-Appellee.
    No. 8588.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Lowther & Boone, William Boone, Many, for plaintiff-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Otha J. Outright (Plaintiff) brought this action to correct the description of a certain tract of land contained in a written act of sale executed by him as vendor and by defendant, Harold Wilson, as vendee. Defendant reconvened, seeking to have the sale set aside and for a full refund of that portion of the purchase price he had paid plaintiff. Defendant also sought to recover damages from plaintiff for breach of warranty of title and for eviction. James R. Cole, Clauriste H. Byles, and Joseph L. Lowrey (intervenors) intervened, seeking to have plaintiff’s action dismissed.

Trial of plaintiff’s action and the incidental actions of the other parties resulted in a judgment in favor of defendant and inter-venors and against plaintiff, dismissing plaintiff’s action with prejudice. The trial court also rendered judgment in favor of defendant and against plaintiff setting aside the alleged sale between them and ordering plaintiff to return that portion of the purchase price (both principal and interest) paid by defendant. In addition, the trial court also ordered plaintiff to pay $10,-500.00 to defendant for improvements defendant had made to the tract of land. Finally, the trial court rendered judgment in favor of plaintiff and against intervenors rescinding, annulling, and revoking certain acts of sale by which intervenors claim to have acquired the ownership of the tract of land described in the act of sale executed by plaintiff and defendant.

Plaintiff has brought this suspensive appeal from that portion of the trial court’s judgment rendered against him and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plaintiff and defendant had failed to agree on the specific tract of land to be sold;
(2) If not, did the trial court commit manifest error in calculating the amount to be recovered by defendant from plaintiff for improvements defendant had made to the tract of land;
(3) Whether the trial court committed manifest error in deciding that plaintiff should be allowed no credit or adjustment for defendant’s use of the land because of a lack of evidence of such use, rather than holding open or re-opening the case for the introduction of additional evidence on this issue.

Intervenors answered the appeal, seeking to have the judgment of the trial court reversed and the validity of the sale between plaintiff and defendant upheld.

FACTS

Plaintiff and defendant executed a written act of sale on June 22, 1977, in which plaintiff agreed to transfer the ownership of a certain tract of land to defendant. The purchase price was set at $10,000.00, in payment of which defendant gave plaintiff $1,000.00 cash and agreed to pay the balance in twelve semi-annual installments of $896.25 each. The act of sale was in authentic form and it was recorded in the conveyance and mortgage records of Sabine Parish on August 30,1977. It contains the following description of the land sold:

“Commencing at the point where the West line of Section 22, Township 7 North, Range 11 West intersects the West right of way line of U. S. Highway 171 By-Pass (Truck Route), being an extension of Elizabeth Street, thence run Northwesterly along said West right of way line a distance of 250 feet for the point of beginning; thence run Northwesterly along said right of way line a distance of 210 feet; thence Southwesterly, at right angles to said right of way line a distance of 225 feet; thence in a Southeasterly direction 211.5 feet to a point on a line at right angles to said right of way which is 195 feet from the point of beginning; thence Northeasterly at right angles to the said right of way line a distance of 195 feet to the point of beginning containing 1.0 acres, more or less.
(Description furnished by Vendor).” (Emphasis ours.)

Plaintiff instituted this action on September 11, 1978, alleging that a mistake of fact existed between the parties with reference to the land allegedly sold and that this mistake was reflected in the description contained in the act of sale which is reproduced above. Plaintiff further alleged that the correct description was as follows:

“Commencing at the point where the West line of Section 22, Township 7 North, Range 11 West intersects the West right of way line of U.S. Highway 171 By-Pass (Truck Route), being an extension of Elizabeth Street, thence run Northwesterly along said West right of way line a distance of 250 feet to a point; thence run Northeasterly, at right angles to the said right-of-way line to the center of the right-of-way of U.S. Highway 171 for the point of beginning; thence run Northwesterly along the center of said right of way a distance of 210 feet, thence Southwesterly, at right angles to said right of way line a distance of 225 feet; thence in a Southeasterly direction 211.5 feet to a point on a line at right angles to said right of way which is 195 feet from the point of beginning; thence Northeasterly at right angles to the said right of way line a distance' of 195 feet to the point of beginning, containing 1.0 acres, more or less.” (Emphasis ours.)

The description in the act of sale places the east boundary of the tract of land allegedly sold at the west right-of-way line of U.S. Highway 171, while the description alleged to be correct by plaintiff places the east boundary at the center of the right-of-way. The description in the act of sale includes approximately one-third of an acre of land that plaintiff contends he never meant to sell, while the description alleged to be correct by plaintiff includes approximately one-third of an acre of land that lies beneath the highway and its right-of-way. Plaintiff sought to have the description contained in the act of sale reformed to conform to the description he alleged to be correct. He filed a notice of lis pendens on the day he instituted this action.

Defendant filed an exception in the trial court alleging that plaintiff was estopped by his own actions from contradicting or changing the description contained in the act of sale. Defendant alleged in his exception that the property description found therein had been furnished by plaintiff to his own attorney, who prepared the act of sale. Further, that the act of sale was in authentic form and was full proof of the agreement contained therein, and that parol evidence could not be admitted against or beyond the instrument. The trial court overruled the exception for reasons not found in the record.

Defendant then filed an answer and re-conventional demand in which he denied the significant allegations of plaintiff’s petition and then assumed the position of plaintiff-in-reconvention. Defendant alleged that it was his intention to buy and plaintiff’s intention to sell one acre of usable land. He further alleged that plaintiff had conveyed the land described in the act of sale to him with full guaranty of warranty of title. Defendant sought to recover damages from plaintiff for breach of warranty and eviction which he alleged resulted from the institution of this action by plaintiff. He set his damages at $7,900.00, consisting of $7,500.00 he allegedly paid for dirt to fill in the land and $400.00 for culverts he installed on the land. In addition, defendant sought to have the sale set aside and for a complete and full refund of that portion of the purchase price he had paid plaintiff, including interest.

Intervenors filed a petition of intervention alleging that the ownership of the tract of land described in the act of sale had ultimately been conveyed to them in the following manner. First, defendant had conveyed the ownership of the tract of land to one Travis Bennett as evidenced by an instrument dated June 14, 1979 and properly recorded. Then, Travis Bennett had conveyed the ownership of the same tract of land to them as evidenced by an instrument dated November 2, 1979 and also properly recorded. Intervenors sought to have the validity of plaintiff’s sale of the tract of land to defendant (as described in the act of sale executed by plaintiff and defendant) upheld and plaintiff’s action dismissed.

PERFECTION OF THE CONTRACT OF SALE

Plaintiff contends that the trial court committed manifest error in finding that the parties had failed to reach an agreement on the object (the tract of land) to be sold.

LSA-C.C. Article 2439 provides:

“Art. 2439. Sale, definition
Art. 2439. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”
LSA-C.C. Article 2456 provides:
“Art. 2456. Completion of contract by agreement as to object and price
Art. 2456. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

The evidence indicates that plaintiff was approached by defendant, who inquired as to the possibility of purchasing an acre of land from plaintiff for business purposes. He found unacceptable the first tract of land shown him by plaintiff. Defendant then stated that he wanted to purchase an acre adjacent to an arts and crafts shop located on the west side of U.S. Highway 171. Plaintiff advised defendant that this tract of land might contain less than an acre, but that if it contained an acre, he wanted $10,000.00 for it. Defendant expressed his willingness to pay this price and left. Plaintiff and his son-in-law then proceeded to measure this tract of land.

They used the center line of U.S. Highway 171 as the east boundary and planned to measure a square tract of land with each side approximately 210 feet long. In doing so, they discovered that a portion of such a tract would encroach upon other land owned by plaintiff, which he did not want to sell. They then shortened the south boundary of the proposed tract to 195 feet and extended the north boundary to 225 feet to avoid any encroachment onto plaintiff’s other lands. Both plaintiff and defendant acknowledged that they had discussed this problem, but defendant testified it was his understanding that he would get an acre of usable land though he didn’t know exactly where it would be located. He stated that he would not have purchased the acre described by plaintiff because approximately one-third of it was covered by the highway and its right-of-way. Defendant admitted that plaintiff had told him that he did not want to sell a portion of the tract of land that was later described in the act of sale.

Plaintiff testified that he never intended to sell any portion of his land that he claims was erroneously included in the act of sale. Plaintiff introduced in evidence certain notes he had made at the time he was negotiating with defendant. These clearly show that plaintiff intended to sell defendant an acre of land with the east boundary being the center line of the highway right-of-way. Plaintiff’s attorney testified that his notes, made when plaintiff called to give him the description of the tract of land to be sold, placed the east boundary where plaintiff contends it should be. However, through error and inadvertence in preparing the act of sale, he placed the east boundary along the west edge of the highway right-of-way.

Plaintiff’s son-in-law, Forrest Cooper, stated that he was present when plaintiff and defendant first discussed the possibility of defendant’s purchasing some land from plaintiff. Cooper testified that it was his understanding that defendant wanted to purchase one acre. He also testified that plaintiff had indicated that he had no intention of selling that portion of his land which he contends was included in the act of sale erroneously.

We conclude that plaintiff intended to sell to defendant the tract of land containing one acre as described in his petition (noted above). Further, that plaintiff’s attorney erroneously described, in the act of sale, the tract of land plaintiff intended to sell, such that the description included approximately one-third of an acre of land that plaintiff had no intention of selling. Finally, that defendant intended to buy one acre of usable land by the arts and crafts shop, and had no intention of buying an acre of land of which one-third of the area was covered by a highway and its right-of-way.

Our review of the record leads us to agree with the trial court’s finding that plaintiff and defendant had failed to reach an agreement as to the object (the specific tract of land containing one acre) of their proposed sale. Thus, under the provisions of LSA-C.C. Article 2439 and 2456, no contract of sale was perfected by them.

Plaintiff’s next contention is that he made a “sale per aversionem” to defendant of the tract of land alleged by him to be the tract that he and defendant had reached agreement on. This contention is without merit as we have found that plaintiff and defendant failed to agree on any specific tract of land.

INTERVENORS’ CLAIM

Intervenors’ first contention is that plaintiff and defendant had reached an agreement as to the object of their purported sale (which intervenors alleged to be the tract of land described in the act of sale) and the price therefor, and that a contract of sale had been perfected by them. For the reasons expressed above, we find no merit to this contention.

Intervenors’ next contention is that plaintiff should be estopped from attacking the property description recited in the act of sale. Intervenors cite Leaveau v. Primeaux, 117 So.2d 304 (La.App.Orl.Cir.1959), in support of their contention. The decision in Leaveau was based mainly on principles set forth in Lewis v. King, 157 La. 718, 103 So. 19 (La.1925), which were derived from a number of common law sources. Lewis stated on page 22 that:

“‘Estoppel is a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the acts and proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing or by representations, express or implied, in pais.’ 21 C.J. p. 1059. There are a great many definitions of the term, but the authorities hold that estoppels preclude the assertion of fact, not law. Moore v. Willis, 9 N.C. 555.
‘Estoppel by warranty is an estoppel based on the principle of giving effect to the manifest intention of the grantor appearing on the deed, as to the lands or estate to be conveyed, and of preventing the grantor from derogating from or destroying his own grant by any subsequent act.’ 21 C.J. p. 1061; Condit v. Bigalow, 64 N.J.Eq. 504, 513, 54 A. 160.
It is a species of estoppel by deed. A party to a deed, and his privies, are es-topped from denying the truth of any material fact asserted in it. Fields v. Willingham, 49 Ga. 344; McAdams v. Bailey, 169 Ind. 518, 72 N.E. 1057, 13 L.R.A., (N.S.) 1003, 124 Am.St.Rep. 240; Cornelius v. Kinnard, 157 Ky. 51, 162 S.W. 524.’

It would appear that the doctrine of es-toppel by deed is applicable and that plaintiff is precluded from attacking the property description in the act of sale. However,' the record shows that plaintiff filed a notice of lis pendens containing all of the required information in the mortgage records of Sabine Parish on September 11, 1978. See LSA-C.C.P. Articles 3751 and 3752. The notice of lis pendens describes only that portion of the tract of land described in the act of sale, which plaintiff contended was erroneously included therein. However, the notice of lis pendens does mention the judicial district in which plaintiff’s action was filed and the docket number assigned to it. Defendant’s reconventional demand was filed therein on October 27, 1978.

The instrument evidencing the sale of the disputed tract of land by defendant to Travis Bennett was executed some eight months after defendant had filed his recon-ventional demand. Further, the instrument evidencing the sale of that same tract of land by Travis Bennett to intervenors was executed approximately one year after defendant had filed his reconventional demand. The property descriptions contained in both of these instruments are identical to the one contained in defendant’s reconven-tional demand, in which he alleged that a dispute existed concerning the ownership of that property.

The purpose of a notice of iis pen-dens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. LSA-C.C.P. Arti-ele 3751; L.E.C., Inc. v. Collins, 332 So.2d 565 (La.App. 1 Cir. 1976); Dane v. Doucet Brothers Const. Co., Inc., 396 So.2d 418 (La.App. 4 Cir. 1981). Under the facts and circumstances set out in the preceding paragraphs, we find that the notice of lis pen-dens filed by plaintiff gave effective notice to third persons that an action affecting title to the entire tract of land described in the act of sale was pending. We further find that the doctrine of estoppel by deed is unavailable to intervenors because the tract of land they attempted to purchase was the same tract of land described in the act of sale.

TRIAL COURT’S AWARD TO DEFENDANT FOR IMPROVEMENTS MADE TO THE LAND

A sale which has been rescinded, voluntarily or otherwise, ceases to exist. There can be no reduction in the consideration which has been paid in connection with a sale which has been rescinded. When a sale is rescinded, the parties are returned as nearly as possible to the situation as it existed prior to the sale. The vendee returns the property to the vendor and the vendor returns the purchase price, subject to whatever adjustments are necessary for the vendee’s use of the property during the period he possessed the same. Nugent v. Stanley, 336 So.2d 1058 (La.App. 3 Cir. 1976); Jones v. DeLoach, 317 So.2d 240 (La.App. 2 Cir. 1975); Phillips v. Nereaux, 357 So.2d 813 (La.App. 1 Cir. 1978), rehearing denied, 361 So.2d 228 (La.1978). We are of the opinion that the same principles apply when, as here, it is determined that the contract of sale never came into existence.

Defendant, in his reconventional demand, alleged that he was entitled to recover $7,500.00 for the fill dirt and $400.00 for the culverts. He testified that he paid for these items in cash and by doing certain mechanical work (such as rebuilding starters for trucks, etc.) for Conrad Cathey, the supplier and hauler of those items. Defendant introduced in evidence certain invoices totaling $6,825.96 which he alleged set forth the value of the work he performed for, or the cash he paid to, Conrad Cathey. He testified that this was all he could account for by invoice as his bookkeeping needed improving. He estimated that he had paid Cathey “somewhere around $8,000.00” in cash or work performed. Cathey testified that, “The total bill was somewhere in the neighborhood of ... give or take $1,000.00 ... $11,000.00”.

The trial court found that Cathey’s testimony, adduced without objection, had enlarged the pleadings and that defendant was no longer limited to the $7,900.00 amount specified in his reconventional demand. The trial court then found that $10,-500.00 was a fair and reasonable amount for the fill dirt and culverts and it awarded defendant that amount. Plaintiff contends that the trial court committed manifest error in finding that defendant was entitled to recover $10,500.00 from him, and we agree. We reduce the trial court’s awtard to defendant for the fill dirt and culverts to $7,900.00, which we find is the amount that defendant proved he had spent on those items.

ADJUSTMENT OR CREDIT FOR DEFENDANT’S ALLEGED USE OF THE LAND

Plaintiff contends that the trial court committed manifest error in failing to award him any adjustment or credit for defendant’s alleged use of the disputed tract of land. Plaintiff bases his contention on the evidence showing that defendant had placed the fill dirt and installed the culverts on the land. The trial court found that the evidence indicated that defendant had made no use of the land, and we agree. We do not believe that the above mentioned acts of the defendant constituted a use of the land such that plaintiff is entitled to an adjustment or credit for it.

Finally, plaintiff contends that the trial court should have held open or re-opened this case for the introduction of additional evidence regarding the amount defendant was entitled to recover for the improvements he made to the property, and the amount of any adjustment or credit which plaintiff may have been entitled to for defendant’s use of the land. The record reveals no motion made by plaintiff to have the trial court do this.

The decision to hold open or reopen a case for the production of additional evidence rests within the sound discretion of the trial judge, which decision will not be disturbed on appeal unless manifestly erroneous. LSA-C.C.P. Articles 1631 and 1632 and Official Comment to LSA-C.C.P. Article 1632; Harrison v. South Central Bell Telephone Company, 390 So.2d 219 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 900 (La.1981); Yeutter v. Lewis, 334 So.2d 728 (La.App. 3 Cir. 1976). We find no manifest error in the trial court’s failure to hold open or re-open this case for the introduction of additional evidence.

For the above and foregoing reasons, the judgment of the trial court is amended to award defendant $7,900.00 for the improvements he made to the land and it is affirmed in all other respects.

All costs in the trial court and on this appeal are assessed equally among plaintiff, defendant, and intervenors.

AFFIRMED, AS AMENDED.

CULPEPPER, J., concurs and assigns reasons.

CULPEPPER, Judge,

concurring.

I concur in the result but prefer to base the decision on the articles of our Civil Code dealing with error as to the object of a contract, LSA-C.C. Articles 1842-1845.

Plaintiff’s petition seeks to reform the written description of the land sold on the grounds that the parties actually agreed to a different one acre of land, i.e., the one acre described in plaintiff’s petition. Although the Louisiana Civil Code does not expressly provide for the reformation of written contracts to conform to the actual agreement of the parties, Louisiana jurisprudence has recognized the remedy of reformation, despite the conflict with the parol evidence rule stated in LSA-C.C. Articles 2276-2278. Wilson v. Levy, 234 La. 719, 101 So.2d 214 (1958). However, the person seeking to reform an instrument for mutual error has the burden of proving such error by the clearest and strongest proof. Wilson v. Levy, supra. In the present case, plaintiff has not sustained his burden of proving clearly that the parties agreed to the one acre fronting on the center line of Highway 171, but that the deed, through mutual error, erroneously described the one acre as fronting on the right of way line of the highway. Thus, I agree plaintiff’s action to reform should be denied.

In his answer, the defendant-vendee denies that the deed erroneously describes the one acre of land actually agreed to by the parties. In the alternative, and in the event the court determines the parties did not agree to sell and buy respectively the one acre described in the deed, the defendant reconvenes for the return of the portion of the purchase price paid by defendant plus the damages suffered by defendant as a result' of the annulment of the sale.

I agree with the majority that the evidence shows there was a misunderstanding between the vendor and the vendee as to the identity of the one acre of land. The vendor thought he was selling one acre fronting on the center line of the highway and running back to a fence which ran along the boundary of other land owned by him. The vendee testified he intended to buy one acre of land fronting on the highway, but that he did not know the exact location of the one acre. Defendant admitted that plaintiff had told him he did not want to sell any portion of the tract of land owned by the plaintiff in the rear. Under the evidence in this case, there was simply no agreement between the vendor and the vendee as to the one acre of land intended to be sold.

Hoff, ERROR IN THE FORMATION OF CONTRACTS IN LOUISIANA: A COMPARATIVE ANALYSIS, 53 Tul.L.Rev. 329 (1979) at pages 348-350, discusses the effect of error in the identity of the object of a contract. The author states there may be some question whether the Louisiana Civil Code is concerned with this type of error. Articles 1842-1845 appear to be concerned only with errors as to the quality of the object. Nevertheless, the author concludes that error as to the identity of the object should invalidate the contract, since the parties have not agreed. I agree with the following analysis by the author:

“B. Error in Corpore
There is error in corpore when there is misunderstanding as to the identity of the object, rather than as to its qualities.103 It occurs when the seller has one object in mind and the buyer another, but not when they act with respect to the same object but differ as to its characteristics. This error is analytically very close to the notion of dissent, for if parties declare their intentions toward different objects they can scarcely be said to have agreed at all.104 It is interesting to note in this connection the use of the word ‘dissentio’ as Pothier quotes the Digest: ‘Si ego me fundum emere Corne-lianum, tu mihi te vendere Sempro nia-num putasti, quia in corpore dissensimus emptio nulla est.’105 The Code civil does not mention error in corpore, although it is established doctrine that it is erreur-ob-stacle.106
There may be some question whether the Louisiana Civil Code is concerned with this type of error. It seems as though the Code, in treating the subject of error as to the object in articles 1842-1845,107 is concerned only with errors as to quality. Article 1842 provides: ‘Error as to the thing, which is the subject of the contract, does not invalidate it, unless it bears on the substance or some substantial quality of the thing. ’108 Articles 1843 and 1844 illustrate the point with Pothier’s examples109 of plated silver mistaken for pure:
There is error as to the substance, when the object is of a totally different nature from that which is intended. Thus, if the object of the stipulation be supposed by one or both of the parties to be an ingot of silver, and it really is a mass of some other metal that resembles silver, there is an error bearing on the substance of the object. 11101 The error bears on the substantial quality of the object, when such quality is that which gives it its greatest value. ‘A contract relative to a vase, supposed to be gold, is void, if it be only plated with that metal.’ ”111

Article 1845 indicates that the preceding articles deal with the problem of mistake as to quality: “Error as to the other qualities of the object of the contract, only invalidates it, when those qualities are such as were the principal cause of making the contract.”112 If the articles just quoted are deemed to be concerned with error as to the identity of the object, then article 1881113 would apply,114 with the result that- errors in corpore would be voidable and not void. Such a result has been suggested by one writer, who argues: “That the error in corpore entails annulability follows from an argumen-tum a minori ad majus, since the error as to the identity of the subject-matter is more comprehensive than that relating only to its substance or quality.”115 This is curious reasoning, indeed. If valid under the Louisiana Code there is no reason why it should not apply with equal force in French law. It seems more correct analytically and historically to view error in corpore as entailing absolute nullity in Louisiana as in France. This is the conclusion of at least one Louisiana court116 and one institutional writer.117 Interestingly, at least two common law commentators have similarly analyzed the problem, citing Raffles v. Wichelhaus118 as an example of error in corpore.119 P.E. Cor-bett wrote:

The Roman rule of nullity ab initio in cases of mistake as to the identity of the object survives in the law of France and of Quebec, though not specifically mentioned in either code. The English Courts will not admit parol evidence against the terms of a written contract on the ground of such error unless those terms are ambiguous, as where they speak of a ship “Peerless” and there are two ships of that name. But the substantive law is the same, since, when evidence is admissible, the transaction is held null.120”

I agree with the majority in all other respects.

For the reasons assigned, I concur.

      . The instrument was recorded on page 336 of Vol. 292 of the Conveyance Records of Sabine Parish and on page 719 of Vol. 117 of the Mortgage Records of said parish and bears registration number 236687.

      . Overruled on other grounds in Clayton v. Rickerson, 160 La. 771, 107 So. 569 (1926).


author: SWIFT, Judge.

text:
    CCH, INC., Plaintiff-Appellant, v. Joel HEARD, Defendant-Appellee.
    No. 8590.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Self & Burkett, Don M. Burkett, Many, for plaintiff-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

The plaintiff-lessee, CCH, Inc., filed this suit to enjoin defendant-lessor, Joel Heard, from preventing plaintiff’s entry upon the leased property to operate its oil well. The defendant answered, alleging the mineral lease had terminated. From a judgment declaring the termination of the lease, the plaintiff has appealed. The defendant has filed a motion to dismiss this appeal.

The mineral lease was executed on November 21, 1979. It had no primary term, but contained the following provision:

“Lessee agrees to commence operations for the drilling of a well on the leased land (Joel Heard) within 30 days after completion of the well on Douglas Heard lease, either as a producing well or plug and abandonment.”

The Douglas Heard well was completed December 30,1979, and the Joel Heard well was spudded in on January 1, 1980. The latter was completed on January 5, 1980. After the construction of a tank battery and the installation of electric lines, production began in February. From February 2 to 14, 1980, the well produced 33 barrels of oil. However, it also produced a large amount of salt water, 100 barrels or more a day, which cost the lessee approximately $1.00 a barrel to haul off the premises.

After four or five months CCH, Inc., determined that the existing equipment was inadequate to handle the salt water flow, so it increased the size of the tubing from 2% inches to 2% inches in diameter and installed a larger pump. A salt water disposal system, connected to a disposal well on other property, was constructed in August, 1980.

There have been many prolonged periods of inactivity on this lease. Some shutdowns of the well occurred because of mechanical failure of the pump and the conversion to new equipment. Several times the pump was found to have been turned off by persons unknown. Each time the well was down the salt water level would rise, requiring more water to be pumped to resume production of oil. On November 22, 1980, the well was shutdown because the cups on a valve were worn out. Nothing was done until February 19,1981, when the well was pulled and the valves were redressed. The pumping was resumed that day, but within hours the well was shutdown again because of a hole in the tubing. No oil has been produced since November 22, 1980.

The well cost approximately $120,000.00 to drill, complete and equip. In addition, about $20,000.00 of the cost of the salt water disposal well and system has been allocated thereto. The plaintiff’s president first testified that production and maintenance costs since completion have amounted to approximately $30,000.00. However, he corrected this saying he only knew they had spent a total of about $150,000.00 by the end of 1980. Of this sum CCH, Inc., put up about $8,000.00. The balance was furnished by its investor. The well has produced only 127.5 barrels of oil. These were sold on November 30,1980, for $35.92 per barrel. After taxes the value of the oil was $4,011.62 of which the plaintiff received approximately $577.00 in royalty.

About Febrüary 23, 1981, Mr. Heard constructed a fence across the access road to the well and posted thereon a “No Trespassing” sign. Plaintiff filed this suit to regain access to the well.

The defendant’s position is that the lease lasped for the following reasons:

“(a) Lack of production in paying quantities sufficient to maintain and hold said lease;
“(b) Failure by Plaintiff to produce, maintain and operate this lease as a reasonable and prudent operator; and
“(c) Failure to comply with the ninety day habendum clause set forth in. Paragraph 6 of said lease.”

By agreement this matter was heard on both the injunction issue and the merits concerning lease termination. Judgment was rendered in favor of the defendant decreeing that the lease had terminated on the grounds that the well had ceased to produce in paying quantities and the plaintiff had not acted as a prudent operator. The judge concluded the defendant failed to prove a lack of activity for any continuous 90 day period.

After the judgment was signed the plaintiff filed another petition to enjoin the defendant from prohibiting its entrance on the property to remove the equipment, alleging that the lease had been declared terminated and cancelled by judgment. Later it appealed devolutively.

In his motion to dismiss the appeal the defendant contends that the plaintiff acquiesced or confessed judgment by filing the subsequent petition of injunction asserting that the previous judgment terminated the lease.

Article 2085 of the Louisiana Code of Civil Procedure states:

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

A confession of judgment precluding an appeal must “consist of an admission by a party in the proceedings in the trial court of the validity of his opponent’s claim in such a way as to leave no issue to be tried.” Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500, 502 (La.1979).

Acquiescence in a judgment by a party precluding an appeal must be voluntary and unconditional. La.C.C.P. Article 2085; Ponder v. Pechon, 169 So.2d 671 (La.App. 1 Cir. 1964), writ not considered 170 So.2d 868 (La.1965). Forfeiture of a party’s right to an appeal through acquiescence should only be decreed when the party’s intention to acquiesce and abandon this right is clearly demonstrated. Succession of Marcel, 387 So.2d 1363 (La.App. 1 Cir. 1980).

In the present case the secretary-treasurer of CCH, Inc., did testify that his company wanted to remove the equipment because the court had declared the lease null and void. However, at no time, dither before or after the judgment was rendered, did the plaintiff or its officers make a judicial admission as to the validity of the opponent’s claim or demonstrate clearly an intention to acquiesce in the judgment and abandon its right to appeal. By filing the second petition for injunction, the plaintiff merely acted to protect its property. Therefore, the defendant’s motion to dismiss is without merit.

On this appeal the plaintiff contends that the judge erred in determining that the well was not producing in paying quantities and that the plaintiff did not act as a prudent operator of the well. Under our system of appellate review such factual determinations by the trial court should not be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); and Canter v. Koehring Co., 283 So.2d 716 (La.1973).

In regard to production in paying quantities on a mineral lease LSA-R.S. 31:124 states in pertinent part:

“When a mineral lease is being maintained by production of oil or gas, the production must be in paying quantities. It is considered to be in paying quantities when production allocable to the total original right of the lessee to share in production under the lease is sufficient to induce a reasonably prudent operator to continue production in an effort to secure a return on his investment or to minimize any loss.”

The absence of production in paying quantities will terminate a mineral lease which is beyond the primary term. See Smith v. West Virginia Oil & Gas Co., 365 So.2d 269 (La.App. 2 Cir. 1978), reversed on other grounds 373 So.2d 488 (La.1979); and the comment under the above section of the Louisiana Mineral Code.

As heretofore mentioned, the lessee expended on this well $150,000.00 from commencement of operations on January 1, 1980, until the end of that year. Of this amount the well cost approximately $120,-000.00 and $20,000.00 was allocated as its share of the salt water disposal system in the field. Although the exact amount of the cost of operation and maintenance was not given by the operator, it is clear that it spent at least $10,000.00 for this in 1980 and some additional costs were incurred when the well was pulled and pumping was restored temporarily on February 19, 1981.

The plaintiff’s president testified that it cost about one-half barrel of oil a day to pay for the pumper or gauger, electricity and handling of the salt water, excluding the cost of repairs. This would mean that the well had to produce I82V2 barrels a year to pay for its own operation without yielding a profit. Actually, it produced only 127.5 barrels of oil during the some 58 weeks of its operation by the plaintiff. According to our calculations, the lessee’s share of the net value of such oil, $4,011.62, was $3,343.02. Since it admittedly spent over $10,000.00 to produce same, it is clear that this well was operated by the lessee for over a year at a considerable loss. There is nothing in the record to indicate that in the future the oil production will increase or that the cost of operating the well will decrease. Consequently, it is rather obvious that the production allocable to the lessee’s working interest is not sufficient to induce a reasonably prudent operator to continue efforts to secure a return on his investment or to minimize his loss.

As the trial judge stated in his written reasons for judgment:

“[I]t is at once apparent that in the instant case, for several months prior to the filing of this suit has there been (sic) no production in paying quantities. In fact there was no production at all after November, 1980, and the initial, flush returns (sic) of oil was soon overrun by salt water, and from this point forward there was no production in paying quantities.”

From our review of the record we are unable to say that the trial court was clearly wrong in finding that the Joel Heard well was not producing in paying quantities and that the absence thereof terminated the lease.

Since we have determined that the trial court was correct in its ruling that the lease had terminated due to the absence of production in paying quantities, we need not consider the issue of whether or not the plaintiff was a prudent operator.

For these reasons, the defendant’s motion to dismiss the appeal is denied and the judgment of the district court is affirmed. All costs are to be paid by the plaintiff-appellant.

AFFIRMED.