text:
    STATE of Louisiana ex rel. Warren WALKER v. Honorable Frank J. SHEA, Judge, Crim. Dist. Ct., Sect. G, Parish of Orleans.
    No. 80-KH-1781.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Warren Walker, applying for writ of mandamus. Parish of Orleans. Nos. 269-776, 269-777, 269-778 and 269^-827.

Denied. Moot.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Kenneth Lee SIMMONS v. Honorable Charles R. WARD, Judge, Criminal District Court, Sect. A.
    No. 80-KH-1770.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Kenneth Lee Simmons, applying for writ of mandamus. Parish of Orleans. No. 178-906.

Denied.


text:
    STATE of Louisiana ex rel. Derrick BELL v. STATE of Louisiana.
    No. 80-KH-1747.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Derrick Bell, applying for remedial writ. Parish of Orleans. No. 268-855 J.

Denied.


text:
    STATE of Louisiana ex rel. Frank MONROE v. Judge Rudolph BECKER, Orleans Parish Criminal Judicial District Court.
    No. 80-KH-1746.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Frank Monroe, applying for writs of certiorari and mandamus. Parish of Orleans. No. 241-128.

Denied.

CALOGERO, J., would grant an out of time appeal.


text:
    STATE of Louisiana ex rel. Charles L. STEWART v. Honorable Matthew BRANIFF, Judge, Criminal District Court, Section B.
    No. 80-KH-1736.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Charles Stewart, applying for writ of mandamus. Parish of Orleans. No. 209-779.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Authur BAILEY v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1734.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Authur Bailey, applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Frank BAKER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-1732.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Frank Baker, applying for writs of certiorari, prohibition, mandamus, and ha-beas corpus. Parish of Orleans. No. 248-487.

Denied.


text:
    STATE of Louisiana ex rel. Terrill Lee DEAKLE v. Frank BLACKBURN, Warden et al.
    No. 80-KH-1730.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Terrill Lee Deakle, applying for writ of habeas corpus, 24th Judicial District Court. Parish of Jefferson. No. 76-2894.

Denied.


text:
    STATE of Louisiana ex rel. Jerry Ryan LAMMANACK v. Frank C. BLACKBURN, Warden.
    No. 80-K-1446.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Jerry Ryan Lammanack, applying for reconsideration of denied writ of September 26, 1980. Jefferson Davis Parish. Nos. CR 978-78, C 199-80 and C 202-80.

Denied.


text:
    STATE of Louisiana ex rel. Michael WAGNER v. 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON.
    No. 80-KH-1721.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Michael Wagner, applying for writ of mandamus. Parish of Jefferson. No. 70-768.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Larry BETHLEY v. Roger AUCION, Warden.
    No. 80-KH-1625.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Larry Bethley, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 12-78-210-CEC3.

Denied.


text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 80-K-2391.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Joe Edward Williams, applying for supervisory writs. Parish of Ouachita. No. 38241.

Granted. Fundamental fairness requires that defendant be re-examined by the doctors comprising the original sanity commission; both the State and defendant are entitled to present additional experts. Re-


text:
    STATE of Louisiana v. Freddie CLEMENTS, Jr.
    No. 80-K-2335.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Freddie Clements, Jr., applying for writ of mandamus. Parish of Orleans. No. 272-959.

Granted. Remanded for a hearing on the motion for a new trial.


text:
    STATE of Louisiana v. Dennis GUIDRY.
    No. 80-K-2306.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Dennis Guidry, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 6-78-668.

Granted,


text:
    STATE of Louisiana v. Reginald DUNCAN.
    No. 80-K-2278.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Reginald Duncan, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 257-602.

Granted.


text:
    STATE of Louisiana v. Willie SPEARS, and Elvis Spears.
    No. 80-K-2273.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. Nos. 277-925, 277-934.

Granted.


text:
    STATE of Louisiana v. Joseph DEFLEY, Jr.
    No. 80-K-2253.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Joseph Defley, Jr., applying for remedial writs and supervisory writs. Parish of Plaquemines. Nos. 59963 and 59964.

Granted.


text:
    STATE of Louisiana v. Donald Ray BELL.
    No. 80-K-2151.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Donald Ray Bell, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 1-80-344.

Granted.


author: CHIASSON, Judge.

text:
    P.H.A.C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Company and Pennzoil Producing Company.
    No. 13245.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Silas B. Cooper, Jr., Abbeville, for plaintiff.
    John W. Hutchison, Lafayette, for Pennzoil Co. and Pennzoil Producing Co.
    Duncan M. Smith, Jr., Lafayette, for Seaways-I nternational.
    Michael J. McNulty, Jr., Franklin, for plaintiff.
    Donald G. Cave, Baton Rouge, for Acoustical Spray Insulators.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Pennzoil Company and Pennzoil Producing Company (Pennzoil) move to dismiss the answer to appeal filed on behalf of P.H.A.C. Services, Inc. (P.H.A.C.) in the consolidated matter styled P.H.A.C. Services, Inc. versus Seaways International, Inc. (Seaways), Pennzoil Company and Pennzoil Producing Company.

In September of 1978, P.H.A.C. filed a suit against Pennzoil and Seaways for a money judgment and recognition of its lien against certain property belonging to Pennzoil. In response, Pennzoil filed an exception of no right of action and an exception of no cause of action asserting in both that P.H.A.C. had no lien rights under any applicable State law.

The trial court found that, although P.H. A.C. was not entitled to a lien under La.R.S. 9:4502 or La.R.S. 9:4801, it did have a lien right under La.R.S. 9:4861.

A judgment was signed by the trial court on December 1, 1978, maintaining the exceptions of no cause and no right of action and dismissing P.H.A.C.’s claims under La. R.S. 9:4801 and La.R.S. 9:4502, but overruling the exceptions as to the claim under La.R.S. 9:4861.

Subsequently, the case was tried and judgment was rendered granting P.H.A.C. a lien pursuant to La.R.S. 9:4861. Pennzoil appealed this judgment and now contends that P.H.A.C. should not be allowed to make reference in its answer to appeal to the judgment on the peremptory exceptions since appellee failed to appeal that judgment within the time delays provided by law. Appellants further contend that ap-pellee’s answer to appeal should be dismissed since it was filed untimely.

La.C.C.P. art. 862 provides that “. .. a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. ...” In the official revision comments to this article it is stated that “. .. this article, .. .suppresses the harsh and unduly technical ‘theory of the case’ doctrine in Louisiana, under which the litigant must select a theory of his case or defense and adhere to it throughout the litigation. ...”

In Royal Furniture Company of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614 (1972), the Louisiana Supreme Court, quoting La.C.C.P. arts. 891 and 862, held that “(W)e have repudiated the theory-of-the-case pleading of the common law.”

In a recent case, as yet unpublished, Chief Judge Ellis held: “We agree that the exception of no cause of action cannot be used to eliminate issues or theories in a case in which the facts are alleged sufficient to set forth a cause of action on any theory.” Osborne v. Christophe, 380 So.2d 134, (La. App. 1st Cir. 1979).

The exceptions filed herein were aimed at having the suit dismissed. The sole issue presented to the trial judge was whether appellee’s petition stated a cause of action under any applicable law. Once the trial judge found that the petition stated a cause of action he should have dismissed or overruled the exception entirely. The exception could not be dismissed and at the same time maintained because it cannot be divided to cover different theories of a single cause of action.

Additionally, Code of Civil Procedure Article 2164 mandates that the appellate court “shall render any judgment which is just, legal, and proper upon the record on appeal.” (Emphasis supplied). Under this article appellee can argue any theory of law to support his cause of action.

We treat appellee’s answer to appeal to apply to the final judgment rendered upon the merits of the case on July 9,1979, and it is therefore timely.

For these reasons the motion to dismiss appellee’s answer to the appeal is denied at appellants’ costs.

DENIED.

      . La.C.C.P. art. 891 provides:
      “The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment of the relief sought. Relief may be prayed for in the alternative.”


text:
    ACOUSTICAL SPRAY INSULATORS, INC. v. PENNZOIL COMPANY et al.
    No. 13246.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied Jan. 26, 1981.
    Donald G. Cave, Baton Rouge, for plaintiff.
    Amos H. Davis, Lafayette, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in “P.H.A.C. Services, Inc. v. Seaways International, Inc., Pennzoil Company and Pennzoil Producing Company," No. 13,245, 393 So.2d 115, the motion to dismiss appellee’s answer to the appeal is denied at appellants’ costs.

DENIED.


author: WATKINS, Judge. LEAR, Judge,

text:
    P. H. A. C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Company and Pennzoil Producing Company. ACOUSTICAL SPRAY INSULATORS, INC. v. PENNZOIL COMPANY et al.
    Nos. 13245, 13246.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Rehearing Denied Jan. 26, 1981.

      Silas B. Cooper, Jr., Abbeville, for plaintiff.
    John W. Hutchison, Lafayette, for Pennzoil Co. and Pennzoil Producing Co.

      Duncan M. Smith, Jr., Lafayette, for Seaways Intern.
    Michael J. McNulty, Jr., Franklin, for plaintiff.
    Donald G. Cave, Baton Rouge, for Acoustical Spray Insulators.
    Amos H. Davis, Lafayette, for defendants.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

These two consolidated cases arose out of the construction of a three story living quarters unit (unit) for an offshore drilling platform. Defendant-appellant, Pennzoil Company and Pennzoil Producing Company (Pennzoil), entered into a contract with defendant, Seaways International, Inc. (Seaways) for the construction of this unit. Plaintiffs-appellees, P.H.A.C. Services, Inc. (PHAC) and Acoustical Spray Insulators, Inc. (Acoustical) subcontracted with Seaways to provide certain labor, materials and supplies in connection with the construction of the unit. PHAC, pursuant to its subcontract, provided labor and materials for the installation of plumbing, heating and air conditioning which was incorporated into the unit. Acoustical, pursuant to its subcontract, provided labor and materials for the installation of acoustical material in and on the said unit. Both PHAC and Acoustical submitted invoices and demands for payment to Seaways and neither was paid. Seaways was apparently not able to pay plaintiffs, for financial reasons. Subsequent to the default in payment by Seaways, both of the plaintiffs-appellees filed lien affidavits in the public records of St. Mary Parish. At the time the lien affidavits were filed the unit was located in St. Mary Parish where it remained until some time after these suits were filed. Pennzoil subsequently moved the unit which it owned to an offshore drilling platform located in the Gulf of Mexico off the Coast of Texas.

Appellant, Pennzoil, filed exceptions of no cause and no right of action, and an exception of lack of jurisdiction over the subject matter, which latter exception was filed after the trial court ruled on the first two exceptions. After hearing on the exceptions of no cause and no right of action, the trial court ruled that plaintiffs-appel-lees had no cause of action under LSA-R.S. 9:4801 et seq., and LSA-R.S. 9:4502 et seq., but found that the appellees did allege a cause of action under LSA-R.S. 9:4861 et seq. The effect of the trial court’s ruling that appellees’ petitions stated a cause of action, was to overrule or dismiss the exceptions of no cause and no right of action in their entirety. See P.H.A.C. Services, Inc. v. Seaways International, Inc., et al., 393 So.2d 115 (La.App. 1st Cir. 1980) and Acoustical Spray Insulators v. Pennzoil Company et al., 393 So.2d 117 (La.App. 1st Cir. 1980).

After trial on the merits the court rendered judgment in favor of appellees and against Seaways and Pennzoil for the amounts claimed, and recognized liens against the unit in favor of appellees under LSA-R.S. 9:4861 et seq., and awarded plaintiffs attorneys fees. Pennzoil appealed. Seaways did not appeal. Acoustical did not appeal, nor did it answer the appeal. PHAC answered the appeal seeking a money judgment against Pennzoil, which it was awarded by the lower court, and seeking recognition of a lien against the unit under LSA-R.S. 9:4801 et seq. and/or LSA-R.S. 9:4502 et seq.

LSA-R.S. 9:4861

The trial court held that under R.S. 9:4861 plaintiffs have a privilege on the unit in the construction of which plaintiffs had furnished labor and supplies. The trial court reasoned that since the statute imposes a privilege on “structures” and “appurtenances”, and the unit fits within the definitions of structures and appurtenances, that a privilege on the unit does in fact exist under R.S. 9:4861.

The critical question in this aspect of the case is not what items of property are burdened with the privilege, but rather was the labor and supplies furnished by plaintiffs the kind for which the subject statute entitles plaintiffs to a privilege. The latter portion of the statute to which the trial court refers beginning “Any person who does any trucking, towing ... ”, in setting forth the various items that when furnished entitled the person furnishing them to a privilege, does not include specifically “structures” or “appurtenances”. These two specific words are only used in the portion of the statute declaring the types of property to which the privileges attach. The trial court’s reasoning, therefore, does not support its conclusion.

That portion of R.S. 9:4861 which describes the various types of property on which the privilege is granted provides that there is a privilege on “... the lease whereon the same are located.... ” This language is indicative of the legislative intent to limit the privilege to those situations where the drilling or operations are identified with a particular lease or leases. This construction is supported by the provisions of R.S. 9:4862 which section sets forth the requirements for filing the Notice of the privilege and declares that the notice must be filed within ninety days, “.. . from the last date of the delivery of such fuel, drilling rigs, ... equipment, material or supplies to the well or wells ...” (emphasis ours).

A further indication of the legislative intent to limit the privilege granted in R.S. 9:4861 to those situations where the drilling or operations are identified with a particular lease or leases is the fact that the various types of property on which the privilege is imposed are listed in the conjunctive and the listing in both instances begins with the “... oil or gas produced from the well or wells, and the proceeds thereof inuring to the working interest therein, and on the oil, gas or water well or wells and the lease whereon the same are located.. . . ” If it was the legislative intent to grant the privilege to furnishers of labor, materials and supplies in the construction of an essential part of an offshore drilling platform not yet connected with the drilling or operations of any particular well or wells on a particular lease or leases, we believe the legislature would have listed the various types of property disjunctively, thereby indicating its intent to grant the privilege even if the drilling rig or platform was not at the time of the furnishing located on a particular lease or leases for the purpose of drilling a well or wells.

The Continental Casualty cases (Continental Casualty Company v. Associated Pipe and Supply Company, 310 F.Supp. 1207 (E.D.La.1969), 447 F.2d 1041 (C.A. 5th Cir. 1971), while not binding on us, differ significantly in that the gas gathering pipeline served particular wells located on certain particular leases.

For the foregoing reasons we are compelled to find that no lien or privilege was created under the provisions of R.S. 9:4861 et seq. in favor of PHAC and Acoustical.

LSA-RS. 9:4801

We now must consider whether a lien was created in favor of PHAC and Acoustical under the provisions of R.S. 9:4801 et seq.

LSA-R.S. 9:4801 provides, in part:
“A. Every contractor, subcontractor, architect, engineer, registered land surveyor, master mechanic, mechanic, cart-man, truckman, workman, laborer, or fur-nisher of material, machinery, or fixtures, exclusive of anyone who rents or leases movable property whose rights shall be governed by the provisions of R.S. 9:4891.1, who performs work or furnishes material for the erection, construction, repair, or improvement of immovable property, or who furnishes oil, gas, electricity, or other materials or supplies for use in machines used in or in connection with the erection, construction, repair, or improvement of any building, structure, or other immovable property, with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege, upon the land and improvements on which the work or labor has been done, or the materials, machinery, or fixtures furnished.”

PHAC and Acoustical contend that they are entitled to a privilege on the unit under the provisions of LSA-R.S. 9:4801 et seq. These appellees did properly and timely file affidavits of their claims as the law requires.

In order for the privilege created by the quoted statute to apply, the unit on which appellees performed labor and furnished materials must be an immovable. The trial court found the said unit not to be an immovable, holding that it was not a building but an “other construction” under LSA-C.C. art. 464 (prior to its amendment by Act 728 of 1978), and therefore not subject to the privilege. We do not agree, as we believe that the unit was a building and an immovable under the law of this State.

The following articles of the Civil Code are pertinent:

“Article 462. Tracts of land Tracts of land, with their component parts, are immovables.
“Article 462. Component parts of tracts of land
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungath-ered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.
“Article 464. Buildings and standing timber as separate immovables
Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.”

Although the quoted articles were amended by Act 728 of 1978 effective January 1, 1979, the official Comments declare that the amendments to these articles did not change the law.

The trial court found the unit to be an “other construction” as distinguished from a building for the reason that “... the structure is not being used as a building; rather it was set upon wooden blocks while it was under construction.” In so finding the court applied the three criteria set forth in Telerent Leasing Corp. v. R & P Motels, Inc., 343 So.2d 267 (La.App. 1st Cir. 1977), in determining whether any object is an other construction, that is, (1) the size of the structure, (2) some degree of integration or attachment to the soil, and (3) some degree of permanency. Concluding that there was “no degree of attachment and/or integration to the soil” nor any intent of the parties that the unit be permanently situated on the land where it was constructed, the trial court found the unit was not an immovable. While the application of these criteria may be valid in determining whether or not certain very diverse kinds of things are “other constructions”, their application to the issue of whether the unit is a building under the law is clearly invalid. Telerant is factually inopposite as the court in that case was called upon to determine whether a music, alarm and public address system installed in each room of a motel was an immovable.

Article 464 of the Civil Code provides expressly that buildings as a class of property are immovables. The official Comments relative to Article 464 explain further as follows:

“(d) Constructions permanently attached to the ground, other than buildings, are component parts of a track of land when they belong to the owner of the ground. Article 463, supra. They are movables when they belong to another person. Article 464, following Louisiana legislation and jurisprudence, declares that only buildings and standing timber may be separate immovables.”

Prior to its revision by Act 728 of 1978, Article 464 of the Civil Code read as follows:

“Lands and buildings or other construction, whether they have their foundations in the soil or not, are immovable by their nature.”

Although the text of this article was changed by the enactment of Act 728, the official Comments declare that the amendments were not intended to change the law. It follows, therefore, that a building is an immovable and it is not required to have its foundation in the soil.

The final question then, is whether the unit is a building within the meaning of Article 464 of the Civil Code. The definition of what is a building qualifying as an immovable under Article 464 has not been expressed clearly in the law or jurisprudence. The determination of what is a building must, therefore, be made by the courts according to prevailing notions in society.

The unit on which PHAC and Acoustical performed labor and furnished materials is a large permanent steel structure, three stories in height, designed and constructed as the living quarters for the persons who work on a fixed drilling platform in offshore waters. The unit is to be used as a dwelling. Clearly within prevailing notions of contemporary society such a structure must be classified as a building. In Olsen v. Shell Oil Co., 365 So.2d 1285 (1979), the Supreme Court in its determination of whether a fixed drilling platform is a building within the meaning of Article 2322 of the Civil Code said:

“The word ‘building’ in Article 2322 is translated from the word ‘batiment’ in its corresponding article of the French Civil Code, Article 1386. ‘Batiment’ is defined in Bescherelle’s Dictionnaire National (1844) as ‘a generic term designating all edifices public or private, regardless of the type material composing them, but most particularly those which serve as habitations.’ (The writer’s translation.) Traditionally, French jurisprudence has interpreted the word ‘batiment’ broadly; according to an authoritative French treatise, numerous French authors consider it to include all works of man, synonymous with the word ‘construction’ (including structures both movable and immovable, whether temporary or permanent).6 The treatise would more narrowly define the word, at least limiting it to immovables, and the tendency of modern French jurisprudence has been so to interpret the word more narrowly.7
“Louisiana Civil Code Article 464 (1870) provides that ‘buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.’ See also Civil Code Articles 463 and 464, as reenacted in 1978. In the context of the Louisiana Civil Code, a ‘building’ is a type of permanent construction that would be classified as an immovable.” (365 So.2d 1285, 1290, 1291) (emphasis ours)

Similarly the word “buildings” in Article 464 is translated from the word “bati-ments” in its corresponding article of the French Civil Code, Article 518. The French definition particularly applies to structures which serve as habitations.

Pennzoil contends that the unit cannot be an immovable because the construction yard in St. Mary Parish on which it was erected was not its permanent location, and because the unit was resting on wooden blocks with no integration with the soil. As stated above, the law does not require that a building have its foundation in the soil. In answer to the contention that in effect the unit does not become a building and, hence, an immovable until it is located on a more permanent site, we find no support in law or in logic for this view, and to adopt it would require us to find that the unit is now a movable contrary to the express provisions of Article 464. The fact that the unit was constructed on one site for ultimate delivery to a more permanent site is not a determinative factor in the consideration of whether the unit is a building. In Holicer Gas Co. v. Wilson, 45 So.2d 96 (La. App. 2d Cir. 1950), the Court said:

“Nor are we disposed to accord great weight to plaintiff’s contention that the gas tank occupies the status of a movable because it was manufactured or fabricated before being placed upon the property. We have been able to find nothing in the law or jurisprudence of this State which requires buildings or constructions to be actually built or constructed upon the land in order to be classed as immovable. Such a conclusion would be utterly unjustified, and, in these days of prefabrication, would lead to absurd consequences entirely incompatible with the obvious intent of the codal provisions.” (45 So.2d 96, 99)

For the foregoing reasons, we hold that PHAC and Acoustical are each entitled to a privilege on the unit under the provisions of LSA-R.S. 9:4801 et seq., and their privileges are hereby recognized.

The contract for the construction of the unit between Pennzoil, as owner, and Seaways, as general contractor, was not recorded, as a result of which R.S. 9:4812 is applicable. Both PHAC and Acoustical timely filed lien affidavits asserting their claims against the owner, Pennzoil, in accordance with the provisions of Section 4812, the effect of which filing not only preserved their privileges but created in their favor a personal cause of action against Pennzoil, as the section in pertinent part provides:

“Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or sub-contractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one year from the aforesaid recordation of his claim, which cause of action shall prescribe one year after the date of said recordation. This shall not interfere with the personal liability of the owner for material sold to or services or labor performed for him or his authorized agent.”

The lower court awarded PHAC and Acoustical attorneys fees as provided by LSA R.S. 9:4861. Since we have found that no lien was created under this statute, and since LSA--R.S. 9:4812 which is applicable does not authorize the granting of attorneys fees, we will reverse the award of attorneys fees.

Jurisdiction Over Subject Matter

Appellant, Pennzoil, filed a decli-natory exception of lack of jurisdiction over the subject matter, contending that, since the unit was located at the time of the filing of the exception off the coast of Texas, the Court lacked subject matter jurisdiction over these proceedings. The unit was located in St. Mary Parish within the geographical jurisdiction of the Court at the time of the filing of the lien affidavits and these two lawsuits. Other than Piper v. Olinde Hardware & Supply Company, Inc., 288 So.2d 626 (La.1974), which is clearly not applicable, Pennzoil cites no law or jurisprudence in support of its exception. There is no question of the court’s jurisdiction over the persons (the parties to these proceedings), and since the unit (res) was located in St. Mary Parish when the lien affidavits were filed and still there when suits seeking to have the liens and privileges recognized were filed, there can be no question of the court’s jurisdiction over the subject matter. It is well established as a general rule that, where the jurisdiction of the person or of the res has once attached, it is not defeated by the removal of the person or the res beyond the jurisdiction of the court. 21 C.J.S. Courts § 93; Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir. 1977).

Decree

The trial court rendered separate judgments in each of these two consolidated eases, but there was an inconsistency in that in Docket No. 13,245 the judgment in favor of PHAC was against Seaways and Pennzoil “jointly, severally and in solido”, but in Docket No. 13,246 the judgment in favor of Acoustical was rendered against Seaways and Pennzoil jointly. We believe that in both cases Seaways and Pennzoil are solidarily liable, however, since Acoustical did not appeal or answer the appeal, we can give no relief beyond that granted in the judgment of the trial court.

In regard to Docket No. 13,245, the judgment of the trial court is affirmed insofar as it awarded judgment in favor of PHAC and against Seaways and Pennzoil jointly, severally and in solido, plus legal interest from date of judicial demand, and all costs and reversed insofar as it recognized a lien in favor of PHAC under LSA-R.S. 9:4861 et seq., and insofar as it awarded PHAC attorney fees. Judgment is rendered herein recognizing a lien on the living quarters unit under LSA-R.S. 9:4801 et seq. in favor of PHAC.

In regard to Docket No. 13,246, the judgment of the trial court is affirmed insofar as it awarded judgment in favor of Acoustical and against Seaways and Pennzoil, plus legal interest from date of judicial demand, and all costs, and reversed insofar as it recognized a lien in favor of Acoustical under LSA-R.S. 9:4861 et seq., and insofar as it awarded Acoustical attorneys fees. Judgment is rendered herein recognizing a lien on the living quarters unit under LSA-R.S. 9:4801 et seq. in favor of Acoustical.

All costs of both appeals are assessed against the appellant, Pennzoil.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

LEAR, Judge,

dissenting.

In order for the privilege created by LSA-R.S. 9:4801 to apply, the unit in question must be an immovable. Louisiana Civil Code articles 463 and 464 provide as follows:

“Art. 463. Component parts of tracts of land
“Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungath-ered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.
“Art. 464. Buildings and standing timber as separate immovables “Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.”

In Jones v. Conrad, 154 La. 860, 98 So. 397 (1924), the Louisiana Supreme Court held that a drilling rig did not become an “immovable” under C.C. art. 464 because it was placed on the land for a temporary purpose.

The unit in question was being built on land for practical purposes of construction and was subsequently towed into the Gulf of Mexico.

It must be kept in mind that a statute creating a lien must be strictly construed and cannot be extended or enlarged by implication or through equitable considerations. McCulley v. Dublin Const. Co., 234 So.2d 257 (La.App. 4th Cir. 1970), writs refused 256 La. 375, 236 So.2d 503 (1970).

In the instant case, the unit being constructed was never meant to be permanent and was not attached to the soil. I, therefore, find it extremely difficult to view this unit as an immovable.

I agree with the majority that no lien or privilege exists under LSA-R.S. 9:4861 et seq. and concur in their reversal of the judgment of the trial court insofar as it recognized a lien in favor of P.H.A.C. and Acoustical under R.S. 9:4861 et seq. and insofar as it awarded attorney fees.

I agree with the trial court that no lien or privilege exists under LSA-R.S. 9:4502 et seq.

I respectfully dissent.

      . The contract was not recorded. Seaways constructed the unit on premises it had leased in St. Mary Parish, Louisiana, from a third party not involved in this litigation.

      . Barbed wire fence, Bailey v. Kruithoff, 280 So.2d 262 (La.App. 2d Cir. 1973), "... railroad trackage, American Cresote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); a tractor shed and poultry house, Prevot v. Courtney, 241 La. 313, 129 So.2d 1 (1961); a canal, Albert Hanson Lumber Co. v. Board of State Affairs et al., 154 La. 988, 98 So. 552 (1923); a brooder for beagle puppies 25 X 5 X 4 feet and a chicken brooder 10 X 5 X 4 feet, each set on 4 X 4 inch posts in the ground, Lafleur v. Foret, 213 So.2d 141 (La.App. 3d Cir. 1968); an outdoor advertising sign, Industrial Outdoor Displays v. Reuter, 162 So.2d 160 (La. App. 4th Cir. 1964); a brick pit, Folse v. Loreauville Sugar Factory, 156 So. 667 (La.App. 1st Cir. 1934); and a gas tank, Monroe Automobile Co. v. Cole, 6 La.App. 337 (2d Cir. 1927).” (at page 264)

      . See Ellis v. Dillon, 345 So.2d 1241 (La.App. 1st Cir. 1977); Benoit v. Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App. 3rd Cir. 1975), writ refused La., 320 So.2d 550 (1975); Bailey v. Kruithoff, 280 So.2d 262 (La. App. 2nd Cir. 1973), and Yiannopoulos, Louisiana Civil Law Treaties, Vol. 2, Sec. 45.


author: EDWARDS, Judge. EDWARDS, Judge.

text:
    Mrs. Daisy LeBLANC v. STATE of Louisiana, THROUGH the DEPARTMENT OF CORRECTIONS et al.
    No. 13168.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    On Rehearing July 25, 1980.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellee Mrs. Daisy LeBlanc.
    Archie Perry, Staff Atty., Baton Rouge, for defendant-appellant The State of Louisiana, through the Dept, of Corrections.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

The State, through the Department of Corrections, appeals a judgment awarding Mrs. Daisy LeBlanc $50,000 for damages she suffered when she was assaulted by a juvenile, allegedly an inmate of the Department of Corrections. We reverse.

John Williams, a juvenile offender, was incarcerated in the Louisiana Training Institute. When he had acquired sufficient merit points, he was released on extended leave and placed in the Community Corrections and Rehabilitation Center, Inc., an autonomous facility. He was no longer under the authority and control of the Department of Corrections.

One day, Williams entered the laundry where Mrs. LeBlanc worked. He robbed, brutally beat and raped her, leaving her for dead.

Mrs. LeBlanc sued the Department of Corrections and the Rehabilitation Center. She subsequently settled with the insurer of the Rehabilitation Center. On appeal, only the State’s liability is at issue.

We find that, even conceding Williams to have been an inmate of the Department of Corrections, Mrs. LeBlanc cannot recover for her injuries from the State.

Under the analysis of Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), four inquiries must all be answered in the affirmative before a plaintiff can recover.

1) Did the act of the defendant play a substantial factor in bringing about harm to the plaintiff, i. e., was it a cause in fact of the harm that occurred?

2) Did the defendant owe a duty to the plaintiff?

3) Was the duty breached?

4) Do the risk and the harm encountered by the plaintiff fall within the scope of protection afforded by the duty which was breached?

We need not answer the initial three inquires since the final one must be answered in the negative.

According to appellee, the acts of the Department of Corrections, which constituted a breach of duty, were 1) allowing Williams to escape, and 2) failing to adopt proper regulations for community rehabilitation centers.

LSA-R.S. 14:110 A provides in part:

“A. Simple escape is:
(1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections or from any place where such person is legally confined; or
(2) The failure of a criminal serving a sentence and participating in a work release program authorized by law to report or return from his planned employment or other activity under said program at the appointed time; or .”
LSA-R.S. 15:1136 provides:
“The Department of Corrections shall adopt all regulations it deems essential to the proper conduct of community rehabilitation centers.”

Clearly, even if the Department of Corrections failed to adopt regulations in violation of R.S. 15:1136, such a failure was not a cause in fact of the injury to Mrs. Le-Blanc.

Furthermore, an “escape” as defined by R.S. 14:110 A is not a result of any failure of the Department of Corrections to establish regulations pursuant to R.S. 15:1136.

Williams’ “escape” and subsequent attack on Mrs. LeBlane was a completely unforeseeable occurrence and not a result of any act by the Department of Corrections. To hold otherwise

“would impose total, unqualified liability on the State for any harm caused by an escaped inmate under any and all circumstances, irrespective of intervening time and distance. As a matter of policy, we are not prepared to extend liability to this degree. We find, therefore, that Appellant does not fall within the class of those afforded protection against the risk of harm involved in this instance.”

Graham v. State, through Health and Social and Rehabilitation Services Administration, 354 So.2d 602 (La.App. 1st Cir. 1977).

Webb v. State, through Department of Institutions, 91 So.2d 156 (La.App. 1st Cir. 1956), is inapplicable since in that case, the inmate was actually escaping, not merely failing to go to his assigned job, as in the present case.

Geiger v. State, through Department of Institutions, 242 So.2d 606 (La.App. 1st Cir. 1970), is inapplicable because that case merely held that a plaintiff allegedly injured by an inmate had a cause of action. Geiger did not award damages to the plaintiff but remanded the case for proof.

Mrs. LeBlane was grievously injured and we truly sympathize with her. However, she did not prove that the State, through its negligence, caused her harm.

For the foregoing reasons, the trial court judgment is annulled and reversed and plaintiff’s case is dismissed. All costs of these proceedings are to be paid by Mrs. Daisy LeBlane.

REVERSED AND RENDERED.

WATKINS, J., concurs in result only.

ON REHEARING

EDWARDS, Judge.

In our original opinion, we held that Mrs. LeBlane could not recover because she had not proved the state negligent. We granted a rehearing to clarify and expand our reasons for judgment.

Under Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, supra, the State does have a duty. That duty is to prevent inmates of State penal institutions from escaping. The State’s duty is intended to protect persons from being harmed by escaping inmates while they are in the process of escaping. The State’s duty is not intended to protect persons from being harmed by inmates who have already escaped and subsequently committed tortious acts in furtherance of their own pursuits. The State is not the insurer of the safety of its citizens.

On original hearing we held that Williams’ “escape” was purely technical and not caused by the State’s negligence. We now observe that even if Williams’ escape were found to be caused by the State’s negligence, a condition contrary to fact, Mrs. LeBlane could not recover.

The assault on Mrs. LeBlane was not a part of the process of escape. Rather, it was a subsequent and spontaneous act of Williams’ related in no way to his inmate status. Thus, negligence by the State is irrelevant because the circumstances of Williams’ attack precludes recovery by the plaintiff from the State.

Some problems have arisen from the case of Webb v. State, through Department of Institutions, supra. In Webb, an inmate escaped from Angola and some twelve hours later went into the Webb home where he shot the plaintiff. The trial court determined that the inmate was “still in the process of attempting to make good his escape,” and on that basis an award of $15,000 was affirmed. What has happened since Webb is that a plaintiff’s emphasis has often been placed on the proximity in time and space of an escaped inmate’s offense to the point of his escape rather than on the proper question of whether the offense, regardless of its time and location, actually was an integral part of the process of escaping. Graham v. State, through Health and Social and Rehabilitation Services Administration, supra; Frank v. Pitre, 353 So.2d 1293 (La.1977); Walker v. Interstate Fire & Casualty Insurance Company, 334 So.2d 714 (La.App. 2d Cir. 1976); Geiger v. State, through Department of Institutions, supra. See also Green v. State, through Department of Institutions, 91 So.2d 153 (La.App. 1st Cir. 1956).

John Williams had not “escaped” when he attacked Mrs. LeBlanc, and, even if he had, his escape was complete when he left the grounds of the Louisiana Training Institute. There were no law enforcement authorities pursuing him. Any acts of Williams, including the vicious attack on plaintiff, were his sole responsibility.

We therefore reaffirm our original opinion.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Elouise KELLY v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY v. Elouise KELLY et al. The UNION LABOR LIFE INSURANCE COMPANY v. Honorable J. Gerald DUPONT, Clerk of Court et al.
    Nos. 13489-13491.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Robert J. Prejeant, Houma, for plaintiff-appellee National Life and Acc. Ins. Co.

      Walton J. Barnes, Baton Rouge, for defendants-appellants Odile Young Jackson et al.
    Patrick W. Pendley, Plaquemine, for defendant-appellee Elouise Kelly.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Elouise Kelly brought suit against National Life and Accident Insurance Company seeking to recover proceeds from a certain life insurance policy. In another proceeding, National Life filed a petition for concursus, impleading as defendants various relatives of the deceased insured. Following consolidation of the two cases, trial was had on February 1, 1979, and the case was then taken under advisement.

The trial court’s opinion, declaring El-ouise Kelly to be the beneficiary, was written, signed and dated on March 2,1979, and was subsequently sent by certified mail to all counsel.

On March 20, 1979, intervenors, the parties originally named as defendants in National Life’s concursus proceeding, filed a motion for a new trial. In a notation written March 22, the trial court stated:

“I need the final judgment in order to pass on a motion for a new trial.”

No further action took place insofar as this motion was concerned.

A final judgment, conforming to the opinion of March 2, was read, rendered and signed in open court on April 3, 1979. Counsel for all parties signed the judgment. Notice of this judgment was never mailed out.

An order for the clerk of court to pay Elouise Kelly the funds deposited in the court’s registry was signed on June 14, 1979, on the ground that sixty days had elapsed since the April 3, 1979, judgment without an appeal having been filed.

On December 13, 1979, the intervenors filed a show cause order, subsequently signed by the trial court, requiring Elouise Kelly and National Life to show cause why the original judgment should not be vacated or, alternatively, why a new trial should not be granted. Following a hearing, the motion for a new trial was denied but the trial court signed an order granting an appeal to the intervenors-appellants.

Counsel for Elouise Kelly has filed a motion to dismiss the appeal on the ground that it was untimely filed. We deny the motion.

LSA-C.C.P. Art. 1913 provides in part:
“when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.”

This case was taken under advisement. Despite the fact that attached to the judgment in the record are the return receipts showing receipt by all counsel of the March 2 opinion, nothing in the record indicates that notice of judgment was ever sent. It must therefore be presumed that no notice was mailed. In re Salmon, 318 So.2d 897 (La.App. 2nd Cir. 1975).

Counsel for plaintiff-appellee, Elouise Kelly, urges that Art. 1913 does not apply in a case like the present one, where all counsel signed the final judgment. We disagree.

Art. 1913 uses mandatory language. No provision is made for relieving the clerk of his obligation to mail out notice of judgment. It is therefore irrelevant whether or not the judgment was signed by counsel.

Since the required notice was not mailed, the delay for appealing the judgment of April 3, 1979, never commenced running and the appeal of intervenors-appellants was timely filed. Gulino v. Gulino, 303 So.2d 298 (La.App. 1st Cir. 1974).

All costs of this motion to dismiss are to be paid by Elouise Kelly.

MOTION TO DISMISS DENIED.


author: LEAR, Judge.

text:
    Elouise KELLY v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY (Odile Young Jackson et al., Intervenors). The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY v. Elouise KELLY et al. The UNION LABOR LIFE INSURANCE COMPANY v. Honorable J. Gerald DUPONT, Clerk of Court, Elouise Kelly and Odile Young Jackson.
    Nos. 13489-13491.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Patrick W. Pendley, Freeman & Pendley, Ltd., Plaquemine, for plaintiff-appellee El-ouise Kelly.
    Robert J. Prejeant, Watkins, Watkins & Walker, Houma, for defendant-appellee National Life & Acc. Ins. Co.

      Walton J. Barnes, Baton Rouge, for inter-venors-appellants Odile Young Jackson et al.
    George F. McCartney, New York City, for plaintiff-appellee The Union Labor Life Ins. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

By these consolidated appeals, appellants entreat this court to reconsider and overrule a doctrine of long standing: That our civil codal articles relating to donations inter vivos and mortis causa have no application to life insurance policies. For the reasons hereinafter assigned, we conclude that our task is foreclosed by our Supreme Court’s decision in Sizeler v. Sizeler, 170 La. 128, 127 So. 388 (La.1930), and we, therefore, affirm.

Levy Jackson married Odile Young and of this marriage five children were born, namely, Evelyn Jackson Hilliard, Rosalie Jackson Morgan, Barbara Jackson, Rubie Jackson and Amanda Jackson. Levy Jackson died insolvent on January 27, 1978. The children and their mother are made defendants herein in three actions. The first is filed by Elouise Kelly who sues the National Life Insurance Company and these defendants claiming entitlement to the proceeds of a life insurance policy issued on the life of Levy Jackson and which named her as beneficiary. She is alleged to be decedent’s concubine. The second and third actions are concursus proceedings convoked by the National Life and Accident Insurance Company and the Union Labor Life Insurance Company. Both issued policies on the life of Levy Jackson. All of the parties named above were impleaded as defendants, including Elouise Kelly, the named beneficiary on both policies. Walton J. Barnes, the attorney for the surviving spouse and heirs of decedent, intervened in the proceedings in his own behalf seeking a portion of the proceeds of the Union Labor Life Insurance policy. His claim is based on the contention, apparently not here disputed, that his efforts, alone, are responsible for the discovery of the Union Labor policy; that he thereby is entitled to receive under the “fund doctrine.”

The lower court, after a full evidentiary hearing, awarded the proceeds of both policies to Elouise Kelly as named beneficiary, subject, however, to the claims of decedent’s widow for $37.25 and $21.60 representing one-half (%) of the policy premiums paid by the decedent with community funds. The widow and children and the attorney-intervenor have perfected these appeals.

Appellants first argue that the trial court erred in authorizing the disposition of community property in fraud of the rights of the surviving spouse and in avoidance of the rights of forced heirs. Alternatively, they argue that the trial court erred in allowing the alleged concubine to receive proceeds constituting the whole of decedent’s estate in contravention of the provisions of LSA-C.C. article 1481.

There is no question but that we are solely concerned with the disposition of the proceeds of a life insurance policy, which proceeds are made payable to a named beneficiary, not the estate of the decedent. In this regard, the jurisprudential rule is clearly articulated in Sizeler v. Sizeler, supra, and fits herein on all fours. In Sizeler, an uncle married his niece in the State of Rhode Island under a statute which permitted marriage among persons of the Jewish faith within the degrees of affinity or consanguinity allowed by their religion. Sizeler’s children filed suit upon his death claiming that the marriage was null and void and that he and his wife were in fact residents of the State of Louisiana at the time of the said marriage. The lower court held that the marriage was null and void and that the “wife” was in fact a mere concubine and, therefore, incapable of receiving the entire insurance proceeds. The lower court further held that the policies of life insurance were donations mortis causa made in violation of article 1481 of the Civil Code. The Supreme Court, per Justice Land, reversed. In so doing, the court expressly overruled its prior decision in New York Life Insurance Co. v. Neal, 114 La. 652, 38 So. 485 (La.1905). Sizeler stands, therefore, for the proposition that life insurance proceeds, unless so designated, form no part of the estate of the deceased, but inure directly to the named beneficiary. Defendants-appellants’ contentions are, therefore, without merit.

Finally, intervenor-appellant, Barnes, argues that because of his discovery of the existence of a policy of insurance (Union Labor) not known to either the named beneficiaries or the surviving spouse and children, he is entitled to a one-third portion of the proceeds of that policy notwithstanding to whom the proceeds are adjudicated. He cites in support thereof inter alia In Re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (La.1958). The authorities cited are clearly inapplicable. Intervenor-appellant is postured throughout these proceedings as an adversarial entity vis-a-vis the interests of El-ouise Kelly. His talents and efforts were both employed and deployed to disqualify her as a beneficiary or at least to substantially reduce any amount received by her. Since she is the sole prevailing party in these proceedings, he may not now be heard and supported in any assertion that he is entitled to one-third of the proceeds paid by the Union Labor Life Insurance Company to plaintiff-appellee.

For the foregoing reasons, the judgments of the lower court are affirmed at the costs of appellants.

AFFIRMED.

      . Re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (1958).

      . Elouise Kelly, appellee, by brief, asks that the judgments be amended to award her the full amount, rather than allowing the widow to recover one-half of the amount of the premiums paid on the policies. However, since she neither appealed nor answered the appeal, her request cannot be considered.

      .“Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate.
      “Those who afterwards marry are excepted from this rule.”


author: LABORDE, Judge. STOKER, Judge,

text:
    Ethel Lola AMBROSE, Plaintiff-Appellant, v. William C. ROBERTS, Defendant-Appellee.
    No. 7746.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant.
    Crowell, Owens & Tudor, Richard B. Cro-well, Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal arises out of a professional malpractice suit filed against defendant on June 21, 1978. Plaintiff alleged that defendant had failed to timely file a suit on her behalf for damages arising out of her wrongful commitment to a mental institution in January, 1973.

Defendant filed a peremptory exception of liberative prescription on December 4, 1979. The trial judge sustained the exception and dismissed plaintiff’s suit. Plaintiff has perfected this appeal.

Plaintiff’s only assignment of error is that “the trial court erred manifestly in sustaining defendant’s peremptory exception of prescription since plaintiff had alleged breach of contract in her original petition and the prescription period for suit for breach of contract is ten years.”

Paragraphs 10-13 of plaintiff’s petition provide:

10.
In the last week of February, 1973, shortly after her release, petitioner contacted defendant William C. Roberts, a practicing attorney in Alexandria. Petitioner hired defendant to represent her and try to clear her name. In addition, petitioner requested that defendant file a damage suit on her behalf against Central Louisiana State Hospital, her ex-husband and the Rapides Parish Sheriff’s Office.
11.
Defendant agreed to represent her and petitioner met with him on numerous occasions, paying him several consultation fees and signing a release to allow him to obtain her records from Central Louisiana State Hospital, relying upon defendant to represent her and take action in her behalf in the matter, which he failed to do, in violation of his contractual obligation and professional responsibility unto petitioner.
12.
Defendant negligently, and irresponsibly failed to file suit on petitioner’s behalf within one year, allowing petitioner’s original claim to prescribe without action. Defendant further failed to inform petitioner of the one year prescriptive period and further refused to allow petitioner to see her own medical records, claiming he could not get them from the hospital.
13.
As a direct and proximate result of defendant’s negligence and professionsl (sic), irresponsibility in failing to timely file petitioner’s suit, petitioner was unable to obtain damages due to her in the following amounts:
Loss of past and future income $ 50,000.00
Pain, suffering, extreme mental anguish and gross inconvenience 250,000.00
Damage to reputation and embarrassment 200,000.00
TOTAL $500,000.00
for all of which defendant is liable unto petitioner for his negligence and for fai-lute (sic) to fullfill his contractual obligations and professional responsibilities.

We have previously held that a malpractice action against an attorney may state a claim both ex delicto and ex contrac-tu. In the case of Johnson v. Daye, 363 So.2d 940 (La.App. 3rd Cir. 1978), we held:

However, a malpractice action against an attorney may state a claim both ex delicto and ex contractu. Jackson v. Zito, 314 So.2d 401 (La.App. 1 Cir. 1975); writs refused, 320 So.2d 551, 553. Compare Henson v. St Paul Fire & Marine Ins. Co., 354 So.2d 612 (La.App. 1 Cir. 1978); writ granted, 356 So.2d 1006. This is true even though the petition be couched in language asserting a claim based on the negligence of the attorney. Under the pleadings filed in the present case, a claim is stated under both actions. The damage claim is prescribed in 10 years under LSA-C.C. art. 3544. Therefore the trial court was correct in holding that any ex delicto claim plaintiffs might have has prescribed but the action ex contractu should have been maintained and considered.

In the instant case, plaintiff properly stated a claim under both actions. The action in tort has clearly prescribed. However, the action in contract has not prescribed under LSA-C.C. Art. 3544.

The trial judge correctly disposed of any ex delicto claim plaintiff might have, but the action ex contractu should have been maintained and considered.

We express no opinion on the merits of the litigation.

For the foregoing reasons, the judgment of the trial court dismissing plaintiff’s suit is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Costs are taxed against defendant-appel-lee.

REVERSED AND REMANDED

STOKER, J., concurs and assigns reasons therefor.

STOKER, Judge,

concurring.

I fully concur in the majority opinion. Defendant-appellee argues vigorously that our reliance on Johnson v. Daye, 363 So.2d 940 (La.App. 3rd Cir., 1978) is misplaced. Therein we relied on Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir., 1975), writs denied on the ground that the judgment was not final because the case had been remanded. 320 So.2d 551 and 553 (La.1975). Defendant-appellee persuasively argues that Jackson v. Zito, supra, is not good law because two justices voted to grant the writ, and one of them, Justice Summers, stated, “in my view, the judgment of the Court of Appeal to the effect that the prescription of ten years is applicable to this malpractice suit is erroneous.”

In addition to this expression of then Justice Summers, defendant-appellee takes the position of the Fourth Circuit case of Corceller v. Brooks, 347 So.2d 274 (La.App. 4th Cir., 1977) writ denied 350 So.2d 1223 (La.1977) and urges that this case expresses the prevailing law. It is urged that this case stands for the proposition, approved by the Louisiana Supreme Court, that a legal malpractice action may be pursued as a tort action only and not as a contract action. Therefore, it is urged that the prescription of ten years applicable to breach of contract does not apply to legal malpractice actions.

While defendant-appellee’s argument is persuasive, I cannot agree with it. The Louisiana Supreme Court has not flat-foot-edly ruled on this question, and our decision in Johnson v. Daye, supra is the latest expression in the matter by an appellate court, so far as we can determine. I cannot agree that the Louisiana Supreme Court has confirmed the Corcelier case. In denying the application for writs in that case the Supreme Court stated: “Writ denied: The result is correct.” A writ denial does not necessarily imply approval of the judgment of the Court of Appeal. White v. Louisiana Western Ry. Co., 174 La. 308, 140 So. 486 (La.1932). See also, Lombardo v. Argonaut Insurance Company, 354 So.2d 731 (La.App. 4th Cir., 1978), writ denied 355 So.2d 1325 (La.1978).

For the foregoing reasons I concur in the decision of the majority to adhere to Johnson v. Daye, supra.

      . The case of Ramp v. St. Paul Fire and Marine Insurance Company, 263 La. 774, 269 So.2d 239 (La.1972) cited in support of Corcelier v. Brooks, supra, does not deal with the issue of whether a legal malpractice action may be subject to the prescription of ten years as a contract action. The quotation from Ramp in Cor-celler merely states that breach of a duty owed by attorney under a contract for legal representation may consist of negligent conduct by an attorney toward his client.


author: LABORDE, Judge.

text:
    Derrell J. HEBERT, Plaintiff-Appellant, v. George E. BRAZZEL et al., Defendant-Appellee.
    No. 7757.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    See also, La.App., 393 So.2d 141.

      Francis J. Mooney, Jr., New Orleans, for plaintiffs-appellants.
    Plauché, Smith, Hebert & Nieset, Allen L. Smith, Jr., Woodley, Barnett, Cox, Williams & Fenet, James E. Williams, Lake Charles, Voorhies & Labbe, Patrick A. Juneau, Jr., Onebane, Donohoe, Bernard, Tori-an, Diaz, McNamara & Abell, Frank X. Neuner, Jr., Mouton, Roy, Carmouche, Bivens & Kraft, Harmon F. Roy, Allen, Gooch & Bourgeois, Joel E. Gooch, Lafayette, Landry, Watkins & Bonin, Alfred S. Landry, Jr., New Iberia, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This personal injury suit was filed by the original plaintiff, Derrell J. Hebert (hereinafter sometimes referred to as “decedent”), against certain executive officers of his employer, other alleged tortfeasors and their insurers, and NIBCO, Inc. (hereinafter referred to as “NIBCO”). NIBCO was alleged to be the manufacturer of a defective valve which caused plaintiff’s injuries.

The original plaintiff died on May 26, 1977, being survived by his widow, Maxine Romero Hebert, and his two minor children, Derrell J. Hebert, Jr. and Shawn Elliot Hebert. Decedent’s survivors were substituted as plaintiffs in this case. Decedent’s survivors filed a separate wrongful death suit under docket number 41,041 of the Sixteenth Judicial District Court, Parish of Iberia, bearing docket number 7758 of this court. Both suits were consolidated for trial by the District Court. We render a separate decision in Romero v. Brazzel, 393 So.2d 141 (La.App. 3rd Cir. 1980).

Liberty Mutual Insurance Company intervened for subrogation as to the medical expenses and workmen’s compensation payments made to the decedent. The amount of the subrogation claim was stipulated to by plaintiffs and NIBCO.

All defendants except NIBCO were dismissed prior to trial by way of settlement or by summary judgment. The case went to trial on October 15, 1979 as a products liability case and ended on October 18,1979 with the rendition of a jury verdict by special interrogatory. The jury unanimously exonerated NIBCO by answering the interrogatories posed as follows:

1. Was the valve in question defectively designed or manufactured by NIBCO?
_or 12
yes no
2. Was the valve in normal use at the time of its failure?
_or 12
yes no
3. Was the valve unreasonably dangerous in normal use?
_or 12
yes no
4. If the valve was defectively designed or manufactured by NIBCO was that defect the proximate cause of Derrell Hebert’s injury and death?
_or 12
yes no
5. Did Derrell Hebert assume the risk of his injuries?
12 or_
yes no
6. What amount of damages, if any, do you find Maxine Romero Hebert entitled to recover? f
S none
7. What amount of damages, if any, do you find Derrell J. Hebert, Jr. entitled to recover?
$ none
8. What amount of damages, if any, do you find Shawn Elliot Hebert entitled to recover?
$ none

The jury verdict was made the judgment of the District Court on November 6, 1979 and plaintiffs have perfected this devolu-tive appeal.

This appeal does not raise any issues against the defendants dismissed prior to trial. The appeal is solely concerned with plaintiffs’ products liability claim against NIBCO.

Plaintiffs contend that decedent was working as a driller for Brazzel Well Service, Inc. He was seriously injured on May 18,1976 when struck in the upper abdomen by a valve that was forced by air pressure from a water tank, and died as a result of those injuries on May 26, 1977.

Plaintiffs contend that the valve was defectively manufactured by NIBCO and that the defects caused the injuries suffered by decedent. Plaintiffs further contend that NIBCO failed to warn users of the valve, such as decedent, as to the danger of using such a valve if the handle was broken off, which danger was known only to defendant.

Plaintiffs contend that the jury findings were manifestly erroneous and that certain rulings of the trial court resulted in the manifestly erroneous jury verdict.

Defendant manufacturer denied the defect and claimed that decedent assumed the risk of his injuries.

The facts reveal that decedent was a driller on Brazzel Rig # 3 and the other crew members were Kim Hebert (the decedent’s brother), Jimmy Guidry and Francis Dore. Kim Hebert was the derrickman and Guidry and Dore were the floormen. The rig had been on location about one week prior to the accident.

The only rig components involved in the case are the water tank and the fitting attached to the tank.

Air pressure from the compressor on the rig was sent through the top valve of the tank forcing water out of the bottom valve and back to the rig to cool the brakes on the drawworks.

The crew was getting ready to put water in the tank. Decedent, who was described by all lay witnesses as being a competent, experienced oilfield driller, disconnected the hose from the tank and opened the 1" NIB-CO valve with a 24" long pipe or Stilson wrench. (The 2V4 inch diameter turning handle had been broken off prior to this time). Decedent unscrewed the valve with the Stilson wrench, put the wrench down, and backed it out by hand when the accident happened.

The record reflects that decedent, as driller, had the authority and responsibility to repair or replace all broken parts on Brazzel Rig # 3. Since the rig operated only during daylight hours and the crew returned daily to the Brazzel warehouse, decedent had the daily opportunity to replace or repair any broken or defective equipment on the rig.

Plaintiffs assign the following issues on appeal:

1. WHETHER OR NOT THE STEM OF THE VALVE THAT INJURED THE DECEDENT WAS DEFECTIVELY DESIGNED OR MANUFACTURED BY THE DEFENDANT, NIBCO.
2. WHETHER OR NOT THE VALVE WAS IN NORMAL USE.
3. WHETHER OR NOT THE VALVE WAS UNREASONABLY DANGEROUS IN NORMAL USE.
4. DID THE DEFECT CAUSE DECEDENT’S INJURIES? ALTERNATIVELY, DID DEFENDANT’S FAILURE TO WARN OF AN UNREASONABLE DANGER CAUSE DECEDENT’S INJURIES?
5. WHETHER OR NOT THE DECEDENT ASSUMED THE RISK OF HIS INJURIES.
6. WHETHER OR NOT MR. EDWARDS AND MR. HEJL SHOULD HAVE BEEN QUALIFIED AS EXPERT WITNESSES.
7. WHETHER OR NOT DEFENDANT SHOULD HAVE BEEN PERMITTED TO INTRODUCE EVIDENCE OF TESTING MADE UNDER NUMEROUS CIRCUMSTANCES DIFFERING FROM THE FACTS OF THIS CASE.
8. WHETHER OR NOT THE TESTIMONY OF A DEAD EXPERT WITNESS MAY BE READ TO THE JURY.

Appellant’s eight issues can be grouped into two categories. The first consists of issues 1-5 as listed above. These issues are factual in nature with a collateral issue of the correctness of the jury instructions. The second category consists of the remaining issues 6-8.

Our review of factual issues is controlled by the principle established by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). In those two cases, the standard of review to be applied to factual determinations by the trier of fact, whether judge or jury, was declared to be manifest error. Manifest error was defined as meaning clearly wrong. Therefore, our review of the factual determinations consists of a review of the record to establish whether or not they are clearly wrong.

After a careful reading of the record and close observation of the arguments of counsel, we do not believe that the jury was clearly wrong.

Appellant also suggests that the trial judge incorrectly charged the jury as to the law.

The first suggested error is that the judge charged the jury that plaintiff must prove both a manufacturing defect and that the product was unreasonably dangerous in normal use. The trial judge instructed the jury that:

a party claiming injury because of such an alleged defect has the burden of proving the following: First, that the product was defectively designed or manufactured; second, that at the time of its failure it was in normal use for which it was designed; third, that it was unreasonably dangerous in that normal use; and fourth, that the injuries were caused by the defect.
Later, he explains to the jury that:
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker and its manufacturer and processing for the manufacturer is presumed to know of the vices and the danger in the things he makes whether or not he has actual knowledge of them. There is a duty upon a manufacturer to know all of the dangerous qualities of the thing which he manufactures, if any, and he is responsible to make those dangers, if any, known to the parties who purchase or use his products, and this is so, even though the product, itself, is not inherently dangerous.

We believe that the effect of the instructions as a whole, as the sum of the parts, is a correct statement of the law. Therefore, we find that the charge is legally sufficient in that the jury had a clear understanding of the law. Bienvenu v. Angelle, 223 So.2d 140 (La.1969); Reeves v. Gulf States Utilities Co., 312 So.2d 118 (La.App. 1st Cir. 1975). In support of this finding we note that the interrogatories to the jury asked them whether the valve was defective and whether it was dangerous in normal use in separate questions. Additionally, we see a distinct similarity between the trial judge’s instructions and certain language found in Weber v. Fidelity & Casualty Ins. Co. of N. Y., 250 So.2d 754 (La.1971).

The second instruction that appellant suggests is erroneous deals with the decedent’s assumption of the risk. We need not reach this issue since a decision on assumption of risk is necessary only if defendant is at fault. Since we do not reverse the jury’s determination that defendant is not at fault, there is no issue.

That last group of issues deals with the expert witnesses. First, appellant suggests that neither of defendant’s expert witnesses at trial should be accepted as experts. We have reviewed the qualifications of both Mr. Edwards and Mr. Hejl. We find no abuse of the trial judge’s discretion in accepting these two persons as expert witnesses. Second, appellant suggests that they are prevented from testifying as experts due to their status as employees and shareholders of defendant. C.C. Art. 2282 provides as follows:

The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to the circumstances, diminish the extent of his credibility.

There is no statutory bar to the witnesses being qualified as experts. The effect of their employment and stock ownership goes to the weight of their testimony, not their competency to testify.

Appellant urges that the testing performed by the experts is inadmissible evidence as being hearsay evidence. There is a dearth of jurisprudence in Louisiana on this issue. Under the annotation “Evidence” in Corpus Juris Secundum, vol. 32, we find the following:

§ 587. — Admissibility of Evidence
Evidence of the results of an experiment, whereby the conditions of an occurrence are artificially created, may, in the discretion of the court, be admissible when relevant to prove an issue in the case and more satisfactory than oral testimony, provided the experiment was fairly and competently conducted.
Competency and fairness of experimenter. As a foundation for the introduction of evidence of experiments, it must be shown, among other things, that the person who makes the experiment is competent to do so, and that the experiment was honestly and fairly made.
* * * * * *
Ex parte experiments. The fact that experiments, evidence of which is sought to be introduced, were made ex parte, and without notice to the adverse litigant, does not render the evidence incompetent, but lessens its probative value, as discussed infra § 592; and evidence of experiments should not be excluded because they were such as were wholly within the power of one party to make, and wholly without the power of the other party.
* * * * * *
§ 589. — In Support or Explanation of Opinion Evidence
Where the opinion of an expert is admissible, the expert witness may testify as to experiments which form the basis thereof, provided the conditions of the experiment are sufficiently similar to those involved in the particular case.
It is very generally held that a skilled observer or an expert witness who has given his opinion in evidence may also be permitted to testify as to the ground of the opinion expressed, which frequently includes evidence of experiments made during the course of his investigation of the subject to which his testimony relates. It has, however, been intimated that where the opinion of a witness is not admissible because of lack of sufficient qualification, evidence of evidence of experiments offered in support of it will not be received. Moreover, where conditions are so dissimilar to those involved in the particular case as to render evidence of experiments incompetent as substantive evidence, in accordance with the rules discussed infra § 590, evidence thereof is inadmissible even though it is of'ered under the guise of a reason for ti_3 opinions of witnesses which have been received.
Where an opinion is in fact based on the general experience of the expert, rather than on the result of the experiment or test, evidence as to such experiment or test should not be admitted. § 590. — Similarity of Conditions
Evidence of an experiment is inadmissible unless the circumstances under which it was made were substantially similar to the circumstances prevailing at the time of the occurrence involved in the controversy.
Where a party alleges that a certain result did or did not follow from certain conditions, it is permissible for him, in support of the assertion, to introduce evidence of experiments made under substantially similar conditions; but in order that an experiment possess sufficient probative value to warrant the admission of evidence thereof, it is necessary that the circumstances under which the experiment is made should be similar to the circumstances prevailing at the time of the occurrence involved in the controversy, especially if the conditions are more favorable to the party offering the evidence. Depending on the circumstances in each case, an experiment may be inadmissible because of the lapse of time making the evidence too remote or effecting a change in conditions.
It is not necessary, however, that the conditions should be exactly identical; and the lack of exact identity affects only the weight and not the competency of the evidence, provided that there is a reasonable or substantial similarity, that is, that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.
The burden is on the party offering the evidence to show similarity in essential conditions; and preliminary proof of identity of conditions should be received. It is for the court, in its discretion, to determine whether the conditions are sufficiently similar to warrant admission of the evidence.

We find no abuse of discretion by the trial judge in admitting the testimony of the testing and we find the judge’s decision proper under the above principles.

The last issue is the admissibility of the deposition of Gaylord Cox, an expert witness hired by appellant. Mr. Cox died prior to trial and his deposition was offered by defendant. Appellant suggests two errors: 1) the law does not permit the introduction into evidence of a deposition of a dead expert witness, and 2) objectionable testimony in the deposition. We affirm the trial court’s ruling. We find no law prohibiting the introduction of the deposition and find that our law readily allows the introduction of the deposition of any dead witness. See C.C.P. Art. 1450. Further, the trial judge allowed plaintiff and defendant the right to object to any testimony they felt improper prior to reading of the deposition. He further gave counsel the opportunity to object to any part during the reading. (Record, p. 1424-5). Counsel for appellant failed to object to any of the specific portions which he cites as error during the reading and only objected to one portion during the deposition. We note he did not insist on a ruling thereon at trial.

We have carefully reviewed the portions read to the jury and the trial judge’s instructions to the jury. We hold that the trial judge did not abuse his discretion in allowing it to be read as the prejudicial effect, if any, does not outweigh the probative value of the testimony.

Accordingly for the above reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are taxed to appellant.

AFFIRMED.

FORET, J., concurs in the result.


text:
    Maxine ROMERO et al., Plaintiffs-Appellants, v. George E. BRAZZEL et al., Defendant-Appellee.
    No. 7758.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    Francis J. Mooney, Jr., New Orleans, for plaintiffs-appellants.
    Plauché, Smith, Hebert & Nieset, Allen L. Smith, Jr., Woodley, Barnett, Cox, Williams & Fenet, James E. Williams, Lake Charles, Voorhies & Labbe, Patrick A. Juneau, Jr., and Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Frank X. Neuner, Jr., Mouton, Roy, Carmouche, Bivens & Kraft, Harmon F. Roy, Allen, Gooch & Bourgeois, Joel E. Gooch, Lafayette, Landry, Watkins & Bonin, Alfred S. Landry, Jr., New Iberia, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is the companion case to Hebert v. Brazzel, 393 So.2d 135 (La.App.3rd Cir. 1980), decided by us this day.

For the reasons assigned therein, the judgment of the trial court is affirmed in all respects. Costs of this appeal are taxed to appellant.

AFFIRMED.

FORET, J., concurs in the result.

Writs granted, 394 So.2d 1234 and 394 So.2d 1235.


author: GULOTTA, Judge.

text:
    PAYNE & KELLER GULF COAST, INC. v. AMERICAN FEDERATION OF UNIONS, LOCAL 102.
    No. 11928.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 1980.

      Taylor, Porter, Brooks & Phillips, G. Michael Pharis, Baton Rouge, for relator.
    Lindsay, Seago & Marcel, Glenn P. Marcel, Baton Rouge, for respondent.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

This matter is before us on Writ of Cer-tiorari issued by this court in a labor dispute injunction suit.

Relators Payne & Keller Gulf Coast, Inc. petitioned the trial court for injunctive relief from unlawful picketing by defendant. After a hearing, the trial judge enjoined the picketing activities of defendant at the construction site, but also enjoined certain activities of plaintiff at that site. Thereafter, a rule to show cause was filed by defendant seeking to have plaintiff relator adjudged guilty of contempt for violation of the preliminary injunction. Plaintiff filed an exception of no cause of action to the contempt rule claiming that the injunction, insofar as it restrains plaintiff’s activities, is unlawful because no form of injunctive relief was ever applied for by defendant and no bond had been posted. The trial judge overruled the exception of no cause of action. Based on a claim of irreparable harm resulting from the judgment overruling the exception, we granted certiorari.

The sole issue presented to this court is whether a trial judge may issue an injunction enjoining a plaintiff who seeks injunc-tive relief against a defendant where defendant has filed a general denial only, has not sought injunctive relief against plaintiff either in reconventional demand or any other pleading, and has not posted security.

This issue is raised on relation of plaintiff that the injunction restraining its activities was unlawfully granted by the trial judge and plaintiff cannot be held in constructive contempt for violation of an unlawful judgment.

LSA-C.C.P. arts. 3601 and 3602 provide that an application for injunctive relief shall be by petition and a preliminary injunction shall not issue unless notice is given to the adverse party and opportunity had for a hearing. Further, a preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court. LSA-C.C.P. art. 3610. R.S. 23:844 provides, in pertinent part,

“No court shall issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect: * * *
No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. * * *” (Emphasis added.)

In Evers v. Louisiana State Board of Medical Exam., 316 So.2d 798 (La.App. 4th Cir. 1975), plaintiff sought to enjoin the board from interfering with or preventing him from engaging in the practice of medicine in Louisiana. The board did not request an injunction against the doctor nor did it file any pleading seeking an injunction against plaintiff from practicing medicine. Nonetheless, the trial judge enjoined Evers from engaging in the practice of medicine. This court annulled and set aside the trial court’s judgment holding Dr. Evers in contempt for violation of the exception issued against him. In Evers we said:

“Prohibiting relator from practicing medicine was not an issue. The judgment and orders prohibiting the practice of medicine are in the nature of, and equivalent to, injunctive relief. LSA-C.C.P. arts. 3601 and 3602 respectively provide an application for injunctive relief shall be by petition and a preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing.” 316 So.2d at 800.

We concluded in Evers because the board had not sought injunctive relief against the plaintiff, the trial court order prohibiting the doctor from practicing medicine was unlawfully issued. We find the Evers case controlling here.

The well intentioned and concerned trial judge, faced with a potentially volatile situation, concluded that it was within his “inherent jurisdiction ... to prevent violence and protect the safety of lives and property ...” We can appreciate the concern of the zealous and dedicated trial judge to protect the safety of all parties in a labor dispute, as well as the community. Nonetheless, the statutory and jurisprudential requirements are that a petition or claim for injunctive relief must be made and security furnished before a court can issue injunctive restraint.

Because the union’s answer, in the instant case, is a general denial setting forth no complaints which could serve as the basis for the granting of injunctive relief against plaintiff, and because no security was posted by the defendant as required under LSA-C.C.P. art. 3610, we are compelled to conclude that the judgment enjoining plaintiff’s activities was unlawfully and improvidently issued. Accordingly, the judgment overruling plaintiff-relator’s exception of no cause of action to the contempt rule is annulled and set aside. Further, that part of the August 12, 1980 judgment enjoining and restricting activities of Payne & Keller Gulf Coast, Inc. at the construction site is also annulled and set aside. The matter is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.

JUDGMENT ANNULLED, SET ASIDE AND REMANDED.

      .The trial judge restrained both plaintiff and defendant from any activity tending to incite a breach of the peace or threatening the lives, safety, or property of others, e. g., making threats, carrying weapons, congregating or placing objects within 300 feet of the gates, blocking traffic. He also required each vehicle and pedestrian to halt at the picket line (composed of no more than 3 pickets) for a three-second period to allow pickets to inform the vehicle occupant or pedestrian of the purpose of the picket line. Plaintiff was specifically prohibited from scheduling or allowing “mass vehicular traffic” at the designated gate, and was required to schedule arrivals and departures of its employees so that no traffic congestion would occur at that gate.

      . Defendant alleged a substantial number of vehicles were refusing to halt and honor the picket line.

      . LSA-C.C.P. art. 224 reads as follows:
      “A constructive contempt of court is any contempt other than a direct one.
      Any of the following acts constitutes a constructive contempt of court:
      5k * * 4s H« *
      (2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court; * * *” (Emphasis added.)

      . See Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182 (La.1954) for an interpretation and restriction of the effect of this statute.

      . The Union simply could have filed additional pleadings in the trial court, posted security as required, and obtain the result sought to be obtained by the trial judge.


author: LOTTINGER, Judge.

text:
    Judy C. Guidry, Wife of/and Didia GUIDRY v. STATEWIDE TRAILER SALES AND LAFOURCHE CONCRETE, INC.
    No. 13625.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 1980.
    Rehearing Denied Jan. 26, 1981.
    Leslie J. Clement, Jr., Thibodaux, for plaintiff and appellant.
    Jude T. Fanguy, Houma, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a breach of contract action to recover damages for the allegedly unwork-manlike performance of a contract to lay a cement foundation for a mobile home. The plaintiffs, Didia and Judy Guidry, filed the action against two defendants — Statewide Trailer Sales, Inc. (Statewide), the seller of the mobile home, and Lafourche Concrete, Inc., the company which laid the foundation. Plaintiffs seek $6,017.40 for the cost of the corrective work, $50.00 per day for the three to five day period that the corrective work will take place, and any additional amount for mental anguish. From a judgment in favor of defendants, plaintiffs appeal.

The plaintiffs purchased a Leisurama Mobile Home from Statewide for $17,854.50. The price included delivery, blocks and tie downs. When plaintiffs requested that a concrete slab be laid for the trailer, the salesman for Statewide contacted La-fourche Concrete, Inc., with which Statewide had close business ties. One of the plaintiffs apparently spoke to a representative of Lafourche Concrete over the telephone, and an oral agreement to lay the foundation was reached. The agreement called for a four inch slab measuring 30' by 60' for a price of $2,000.00.

Employees of Statewide and Lafourche Concrete jointly participated in the laying of the slab and the placement of the trailer upon it. However, the slab was laid without reinforcing steel or wire. When the trailer was moved onto the concrete, the slab cracked in one place, and as the trailer settled a number of other cracks began to appear. The cracking, sinking slab caused about four inches of water to collect under the trailer and caused the trailer to become unleveled. The water often stagnated and smelled, according to the plaintiffs’ testimony.

An expert for the plaintiffs testified that absence of reinforcing steel wires inside the slab made it impossible for the slab to withstand the pressure of the weight upon it. Lack of reinforcing steel wires caused the slab to crack and the problem was aggravated by improper blocking of the trailer, the expert said. Employees of the defendant companies admitted in their testimony that they did not block the trailer according to manufacturer’s specification. Without written reasons, the trial judge held that there was no breach of contract by either of the defendants. He wrote in his judgment that he was “of the opinion that the plaintiffs . .. had failed to prove their demands.”

Under Louisiana law, a contractor who undertakes a construction project must perform the work in a skillful and workmanlike manner. La.C.C. art. 2769. In a suit to impose liability on a contractor for poor workmanship or noncompliance with the contract, a plaintiff must prove his case by a preponderance of the evidence, either direct or circumstantial. A & M Pest Control Service, Inc. v. Fejta Construction Company, Inc., 338 So.2d 946 (La.App. 4th Cir. 1976).

Our review of the record convinces us that the plaintiffs have proven their case by a preponderance of the evidence. When Lafourche Concrete agreed to lay the slab, they knew that the slab was to be used as a foundation for a Leisurama trailer, a type of trailer with which they had dealt in the past. Implicit in such a contract to lay a slab for a mobile home is the obligation to lay a slab that will withstand the pressure exerted upon it when the mobile home is blocked thereon. Failure of Lafourche Concrete to place reinforcing steel wires in the slab was a breach of that company’s contract with the plaintiffs. The breach of contract caused the damages sued for in this case.

We are also of the opinion that Statewide Trailer Sales breached its contract with the plaintiffs by failing to properly block the trailer. Statewide’s breach was also partially responsible for the damages sued upon by the plaintiffs.

The unrebutted testimony of the plaintiffs and their expert identified, by a preponderance of the evidence, the cause of the defects, the conditions resulting from the defects and the price necessary to correct the defects. The defendants will be cast solidarily for the amount of $6,017.40 for the cost of the corrective work and $250.00 for the plaintiffs to obtain accommodations while the corrective work is taking place. We reject the plaintiffs’ claim for damages for mental anguish.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. Judgment is rendered in favor of the plaintiffs, and the defendants will bear all costs in both the trial court and in this court.

REVERSED AND RENDERED.


author: COVINGTON, Judge.

text:
    Ross E. COX v. SOUTHERN COLONIAL INVESTMENT, INC. et al.
    No. 13997.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 1980.
    Rehearing Denied Jan. 26, 1981.

      Thomas K. Kirkpatrick, Baton Rouge, for appellants.
    Bert K. Robinson, Baton Rouge, for ap-pellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   ON MOTION TO DISMISS THE APPEAL

COVINGTON, Judge.

Appellee, Ross E. Cox, has moved to dismiss this unlodged appeal on the grounds that no timely appeal bond was filed by the defendants, Southern Colonial Investment, Inc., Wayne D. Swenson and Claude Kirkpatrick, thus the appeal was not timely perfected.

The original suit herein (No. 169,896 on the docket of the Nineteenth Judicial District Court) was to recover rental installments under a lease of certain premises in the Interstate Shopping Center in the Parish of East Baton Rouge, Louisiana. On December 4, 1979, the trial court rendered judgment in favor of the plaintiff and against all defendants solidarily and signed the judgment, in the amount of $52,500 with interest, and subject to a credit of $6,358.32, on March 17,1980. On March 21, 1980, the defendants moved for a new trial, which motion was set for hearing on April 18, 1980. The motion was submitted without argument and taken under advisement by the trial court. There is no written request for notice in the record.

On May 7, 1980, the trial judge sent a letter to his minute clerk, with a copy to counsel of record, that the application for new trial was denied. The minute entry, however, was made as of April 18, 1980, that the court denied the motion. A copy of the extract of the minutes was mailed to counsel of record on May 12, 1980. A signed “Judgment on Motion,” denying the new trial, is dated July 22, 1980.

On June 9, 1980, the defendants filed a petition for a suspensive and/or devolutive appeal, with the order signed by the court on the same date. The appeal bond was signed by Claude Kirkpatrick and Wayne D. Swenson, as principal and surety respectively, and filed on June 13, 1980.

As stated above, the application for new trial was refused on May 7, 1980. In the instant case, the defendants were not entitled to notice of the denial of their motion for a new trial because they had not filed a written request for such notice as provided in LSA-C.C.P. Art. 1914. Clark v. Clark, 351 So.2d 779 (La.App. 1 Cir. 1977); LeBlanc v. Employer’s Reinsurance Company, 339 So.2d 456 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 420 (La.1977); McDowell Well Service, Inc. v. Gray and Company, 270 So.2d 647 (La.App. 3 Cir. 1972).

The courts of this State have consistently held that a written request is required for notice of the refusal to grant a new trial where the motion was taken under advisement. LeBlanc v. Employer’s Reinsurance Company, supra. Therefore, the thirty day delay allowed defendants-appellants in which to perfect their appeal commenced on May 8, 1980. LSA-C.C.P. Art. 2123(2). The delays for perfecting a suspensive appeal in this case expired on June 6, 1980. The order was not signed until June 9, and the appeal bond was not filed until June 13, 1980.

The timeliness of the signing of the order of appeal and the filing of the appeal bond is jurisdictional. An appellate court does not acquire jurisdiction unless the order is obtained and the bond is filed within the prescribed time. LSA-C.C.P. Art. 2088. Thus, we conclude that since the defendants-appellants did not timely per-feet the suspensive appeal within the time allowed, this Court must dismiss the suspen-sive appeal of the appellants. Willie v. Otasco, 347 So.2d 1215 (La.App. 1 Cir. 1977).

Nevertheless, we must deny the appellee’s motion to dismiss the unlodged devolutive appeal. When a suspensive appeal is dismissed as not being timely perfected, it will be considered as a devolutive appeal. Since appeal bonds are no longer required for devolutive appeals under LSA-C.C.P. Art. 2124, and the appellants have fulfilled all of the requirements for a devol-utive appeal, we will consider this appeal as devolutive in nature and deny the motion to dismiss. Succession of Buvens, 373 So.2d 750 (La.App. 3 Cir. 1979).

For the reasons assigned, the motion to dismiss is granted insofar as it seeks dismissal of the suspensive appeal; however, we retain jurisdiction to review this matter as a devolutive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED:

DEVOLUTIVE APPEAL MAINTAINED.

CHIASSON, J., concurs in result.

      . There is no requirement that an order denying a motion for a new trial be in writing, such an order being interlocutory in nature. It is sufficient that it be made as a minute entry. McDowell Well Service, Inc. v. Gray and Company, 270 So.2d 647 (La.App. 3 Cir. 1972); see also Trailwood Forest-Calcasieu, Ltd. v. Cour-sey, 372 So.2d 615 (La.App. 3 Cir. 1979), writ denied, 375 So.2d 958 (La. 1979).

      . Joseph N. Traigle, Collector of Revenue, State of Louisiana, versus Gulf Coast Aluminum Corporation, et al, 391 So.2d 1290 on the docket of this Court, holds that it is the responsibility of the appellant to obtain a timely order of appeal; it is not the mere filing of an unsigned order of appeal with a deputy clerk that “perfects” the appeal.