author: SCHOTT, Judge.

text:
    PATRICK PETROLEUM CORPORATION OF MICHIGAN et al. v. Thomas POCHE et al.
    No. 11103.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.
    Alvin R. Childress, III, New Orleans, for plaintiffs-appellees.
    Thomas J. Kliebert, Law Offices of Thomas J. Kliebert, Gramercy, for defendants-appellants.
   SCHOTT, Judge.

Before GULOTTA, SCHOTT and CHE-HARDY, JJ.

This is a concursus proceeding provoked by Patrick Petroleum Corporation in order to resolve conflicting claims between the Nobile-Faucheux group and the Poche group. From a judgment in favor of the Poche group the others have appealed.

The principal issue in the case is whether Thomas Poche conveyed to A. L. Faucheux and Felix F. Nobile on March 30, 1936, a mineral interest in property in St. James Parish or a mere royalty interest. Appellants concede that if a mere royalty interest was conveyed they have lost that interest by prescription since there has been no production on or involving the property as a result of pooling agreements since 1955. On the other hand, appellants contend that their ancestors were conveyed a mineral servitude interest and that prescription was interrupted in 1965 and 1974 by good faith efforts to drill wells on the property.

When the Poche to Faucheux-Nobile sale was made the property was subject to a mineral lease granted by Federal Land Bank of New Orleans to Shell Petroleum Corporation on January 2, 1936, for a five-year term, and the sale was of the following:

“ONE-SIXTEENTH (being one-half of one-eighth royalty) interest in and to all of the oil, gas, sulphur and other minerals on, in and under and that may be produced from the following described lands, situated in the Parish of St. James, State of Louisiana, to-wit:”

Had the instrument been concluded at this point, i. e., with the property description following, there would be no issue for resolution, but following the property description the instrument continued:

“It is understood and agreed, between the parties hereto, that this sale is made subject to any valid and duly recorded oil, gas, sulphur and mineral lease now in force and effect, and embracing the above described lands, and particularly an outstanding oil and gas lease entered into between The Federal Land Bank of New Orleans and The Shell Petroleum Corporation, under date of January 2,1936, but covers and includes a full one-half of all the royalty on oil, gas, sulphur and other minerals due and to become due and payable under the terms of said lease; and furthermore, in the event the above mentioned lease for any reason becomes terminated, cancelled or forfeited, then and in that event a full one-sixteenth interest In and to all the oil, gas, sulphur and other minerals on, in and under and that may be produced from the above mentioned lands shall be owned free of further cost by the Vendees herein.” (Emphasis supplied)

Appellants’ interpretation of this instrument is that the first quoted part of the instrument constituted a sale of a royalty interest but the second quoted portion, and particularly that portion which we have emphasized, constituted a conveyance of a mineral servitude interest.

Were we to conclude that this was a conveyance of a mineral servitude interest we would then be confronted with the issue of whether the drilling of wells in 1965 and 1974 were good faith drilling attempts so as to interrupt prescription until the present production began. But our resolution of the basic issue makes it unnecessary to address this additional issue.

Standing alone, the March 30, 1936, instrument seems to convey a royalty interest. The paragraph on which appellants depend does not seem to convey an additional interest but only to explain what happens to the royalty interest in the event of termination of the Shell lease. After the paragraph repeats that the conveyance “covers and includes a full one-half of all the royalty” which might accrue from the Shell lease during its existence, it goes on to say that the same one-sixteenth royalty interest will continue to be owned by Fau-cheux and Nobile without regard to the expiration of the Shell lease.

The jurisprudence provides an explanation as to why the parties added the language on which appellants base their argument. In Humble Oil & Refining Co. v. Guillory, 212 La. 646, 33 So.2d 182 (1947) the court said:

“The sale of royalties under an existing lease and future leases, is nothing more than the transfer of a proportionate share of the production, if any, that the landowner may be entitled to under the terms of the lease. It is a right predicated upon another right, the lease. Whenever the lease lapses by its terms the right to royalties thereunder necessarily passes out of the picture. Calcasieu Oil Co., Inc. v. Yount-Lee Oil Co. et al., 174 La. 547, 141 So. 55; Parten v. Webb et al., 197 La. 197, 198, 1 So.2d 76.”

In the absence of the additional language designed to perpetuate the royalty interest beyond the termination of the Shell lease, that royalty interest would have lapsed in 1941.

If there is any doubt as to this interpretation it seems to be eliminated considering three subsequent instruments which were executed by these parties.

First, on February 16, 1938, the parties executed an agreement acknowledging the previous March 30, 1936, agreement as follows:

“WHEREAS, the undersigned Thomas Poche did on the 30th day of March A.D. 1936, execute a deed conveying to the undersigned Alonzo L. Faucheux and Felix F. Nobile, and heirs and assigns, in the equal proportions,
One-Sixteenth (being one-half of one-eighth royalty) interest in and to all of the oil, gas, sulphur and other minerals on, in and under and that may be produced from the lands fully described in said deed duly recorded in Conveyance Book “J” folio “12” of the records of the Parish of St. James.
AND WHEREAS, the consideration paid for said royalty interest in said mineral was the cash sum of Two Thousand Dollars duly paid unto the said vendor by the said vendees;
AND WHEREAS, the intention was to convey said royalty interest to said vendees, and their heirs and assigns, forever, and in full ownership, which is hereby reiterated by the said vendor.
NOW, THEREFORE, the said parties now further agree and covenant as follows:
1. For and in consideration of the agreement hereinafter set forth, the said vendor agrees and binds himself, heirs and assigns, to grant unto vendees a deed conveying the full ownership of said one-sixteenth royalty interest in said property as soon as any state law is enacted with respect thereto and moreover agrees and binds himself, heirs and assigns to continue into full force and effect the said sale of royalty by renewal thereof, and in this connection the said grant is hereby renewed as of this date.”

On January 16, 1945, the parties again executed an acknowledgment because of production which was then occurring on property with which the subject property was joined in a pooled unit. This document contains the following:

“WHEREAS, the undersigned, Thomas Poche, as Vendor, did on the 30th day of March, 1936, execute a deed conveying to the undersigned, Alonzo L. Faucheux and Felix F. Nobile, as Vendees, heirs and assigns, in equal proportions,
One-Sixteenth (being one-half of one-eighth royalty) interest in and to all of the oil, gas, sulphur and other minerals on, in and under and that may be produced from the lands fully described in said deed duly recorded in Conveyance Book “J” folio 12 of the records of the Parish of St. James.
AND WHEREAS, the consideration paid for said royalty interest in said minerals was the cash sum of Two Thousand ($2,000.00) Dollars, duly paid unto the said Vendor by the said Vendees.
AND WHEREAS, the intention of the parties was to convey said royalty interest to said Vendees and heirs and assigns forever and in full ownership, which is hereby reiterated by the said Vendor.
AND WHEREAS, the said Vendor, Thomas Poche, in consideration of the covenants hereinafter expressed and of the aforesaid cash consideration, did agree and bind himself to grant unto the Vendees a deed conveying the full ownership of said one-sixteenth royalty interest in said property as soon as any State law is enacted with respect thereto and did agree and bind himself, heirs and assigns, to continue into full force and effect the said sale of royalty by renewal thereof.”

Finally, on July 19, 1955, the parties executed still another acknowledgment containing the following:

“WHEREAS, the undersigned, Thomas Poche, as Vendor, did, on the 30th day of March, 1936, execute a deed conveying to Alonzo L. Faucheux and Felix F. Nobile, as Vendees, heirs and assigns, in equal proportions,
One Sixteenth (being one-half of one-eighth royalty) interest in and to all of the oil, gas, sulphur and other minerals on, in and under and that may be produced from the lands fully described in said deed duly recorded in Conveyance Book “J” folio 12 of the records of the Parish of St. James.
AND WHEREAS, the consideration paid for said royalty interest in said minerals was the cash sum of Two Thousand ($2,000.00) Dollars, duly paid unto the said Vendor by the said Vendees.
AND WHEREAS, the intention of the parties was to convey said royalty interest to said Vendees and heirs and assigns forever and in full ownership, which is hereby reiterated by the said Vendor.
AND WHEREAS, the said Vendor, Thomas Poche, in consideration of the covenants hereinafter expressed and of the aforesaid cash consideration, did agree and bind himself to grant unto the vendees a deed conveying the full ownership of said one-sixteenth royalty interest in said property as soon as any State law is enacted with respect thereto and did agree and bind himself, heirs and assigns, to continue into full force and effect the said sale of royalty by renewal thereof.
AND WHEREAS, the said Vendees did agree and bind themselves, heirs and assigns, in consideration of the above covenants on the part of the said Vendor, to convey, transfer and assign unto said Vendor the entire delay rentals covering two years due January 2, 1939 and January 2, 1940, provided that the covenants on the part of the Vendor to perpetuate the royalty interest to Vendees shall have been performed and carried out.
AND WHEREAS, it was expressly covenanted that any future delay rentals or consideration, other than the two years above specified, shall be divided according to the respective interests of the parties.
AND WHEREAS, under date of January 2, 1941, the said parties executed a certain gas, oil and mineral lease in favor of C. B. Pennington, which lease is recorded in Book 77, page 591, of the Conveyance Records of St. James Parish, Louisiana, and which said lease is now owned by Humble Oil & Refining Company.
AND WHEREAS, said lease was amended by pooling agreements executed by the parties hereto, which agreements are recorded in the Conveyance Record of St. James Parish, Louisiana.
AND WHEREAS, the said Alonzo L. Faucheux and Felix F. Nobile have carried out all the covenants to transfer the entire delay rentals which were paid and put in escrow for the two years ended January 2, 1939 and January 2, 1940 and on the 16th day of January 1945 the cash sum of Fifteen Hundred and Fifty-five and No/100 ($1555.00) Dollars was paid unto the said Thomas Poche covering the said delay rentals in full.
AND WHEREAS, the said Thomas Poche has carried out and is prepared and ready to carry out each and every one of his covenants to perpetuate the royalty interest to said Alonzo L. Faucheux and Felix F. Nobile, heirs and assigns.”

Appellants’ position is clearly contradicted by these instruments which repeatedly refer to the interest conveyed in 1936 as a royalty interest. Since appellants have conceded that their royalty rights prescribed if the March 30, 1936, conveyance was only of a mineral royalty and since we have concluded that this conveyance was of a mineral royalty as opposed to a mineral servitude, the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Isadore CARTER v. CHRYSLER MOTORS CORPORATION, Chrysler Corporation, Standard Motors, Inc., and Community MOtors, Inc.
    No. 10995.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.
    Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford & Mintz, Ernest P. Gieger, Jr., New Orleans, for Chrysler Corp., defendant-appellee.
    Adcock, Dupree & Shows, E. Wade Shows, Baton Rouge, for Community Motors, Inc., defendant-appellee.
    Monroe & Lemann Benj. R. Slater, Jr., William J. Hamlin, New Orleans, for Cum-mins Engine Co., third party defendant-ap-pellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff, Isadore Carter, appeals from a judgment dismissing his suit in redhibition against defendants, Chrysler Motors Corporation; Chrysler Corporation; Standard Motors, Inc.; and Community Motors, Inc., and dismissing the third party demands of Community Motors, Inc., against Chrysler Corporation; Standard Motors, Inc., against Chrysler Corporation; Chrysler Corporation against Cummins Engine Co., Inc.; and Community Motors, Inc., against Standard Motors, Inc.

The facts of the case were will articulated in the trial court’s reasons for judgment:

“This is a suit in redhibition initiated by plaintiff, Isadore Carter, to recover the purchase price, incidental expenses and damages sustained in connection with his purchase of a new Dodge CNT 800 diesel truck. The truck was purchased from Community Motors, Inc. (hereinafter referred to as Community) in Hammond, Louisiana, on January 29, 1976. Since Community did not ordinarily sell trucks of this size, they contacted Standard Motor Car Company of Baton Rouge, Louisiana (hereinafter referred to as Standard). The salesman from Community, Albert Carter, who was also the brother of Isadore Carter, went with plaintiff to Standard to discuss the purchase of the truck. Community did not ordinarily sell large trucks and made no representations to anyone that they sold, serviced, or recommended the truck chosen by plaintiff or any other large truck. After plaintiff’s decision was made, Community purchased the truck from Standard and then sold it to Isadore Carter. Plaintiff picked the truck up from Standard and drove it to Community where a certificate of title was issued to the plaintiff. The negotiations at Standard were made with Mr. Clyde Moore, one of their salesmen.
“After the purchase of his truck, plaintiff alleges that he has experienced problems with it which would entitle him to a rescission of the sale. The defendants, Community, Standard and Chrysler Corporation (hereinafter referred to as Chrysler), have denied plaintiff’s allegations and contend that plaintiff is neither entitled to a rescission of the sale nor to reduction in purchase price.”

Subsequent to a trial on the merits, the district court judge made the following separate and distinct findings of fact:

“1.
Plaintiff put approximately 15,000 miles on the truck, during the ten (10) months he had it.
2.
The evidence showed a number of persons performing modifications: Fred Cutrer installed the flat bed and the hydraulic lift; Ewell Spurlock changed the wheels; Salvadore Anone put on the fifth wheel and shortened the wheelbase and drive shaft; and Oliver Wells installed and welded the dump body.
3.
Plaintiff did not produce adequate records to show that he properly maintained and serviced the truck.
4.
There were times when plaintiff overloaded the truck.
5.
Plaintiff operated the truck at extended fast speeds.
6.
The plaintiff placed extra large tires on the truck.”

In his reasons for judgment, the trial judge also noted:

“The Court is of the opinion that the truck was capable of performing in accordance with its designed use and that the plaintiff failed to prove that any defect existed at the time of the sale.
“The trouble with the power steering was minor and was repaired at no cost to plaintiff.
“The truck was delivered to Standard for repairs of the clutch in December, 1976, and plaintiff never returned to get it.
“The Court is convinced that the plaintiff’s misuse, abuse, and failure to maintain the truck was the cause of the problems and he cannot recover in these proceedings.”

Counsel for plaintiff, in discussing this observation by the trial court stated:

“Most disturbing of all, however, is the court’s conclusion that ‘plaintiff’s misuse, abuse, and failure to maintain the truck was the cause of the problems.’ It is embarrassing because it is a direct quote from page 2 of Chrysler’s post-trial memorandum, unsubstantiated by any evidence in the memorandum. It is disturbing because the record also fails to reveal any evidence supporting the court’s conclusion and appears to be a misunderstanding of the testimony.”

We do not agree with this expression by the learned counsel for plaintiff. The testimony and the record substantiate the trial judge’s finding that plaintiff’s misuse, abuse and failure to maintain the truck was a principal cause of plaintiff’s problems with the truck.

The plaintiff argues he communicated to the salesman that his main purpose for buying the truck was to haul bricks, and, since this was the principal cause of the contract to purchase the truck, and the salesman was aware that this was the principal cause, then there exists an error in motive sufficient to invalidate the contract of sale, citing Wheat v. Boutte Auto Sales, 355 So.2d 611 (La.App. 4th Cir. 1978). In that case the court stated at page 612:

“The testimony of plaintiff, corroborated by defendant’s salesman, is that he repeatedly expressed to the salesman that he did not want and would not buy a wrecked automobile, thus establishing that the acquisition of a non-wrecked automobile was his principal motive, communicated to the seller. The salesman told him that this car had not been wrecked. An expert’s testimony establishes that the car had been badly wrecked, with evidence of damage in many areas of the car. Thus even if the seller’s declaration were made in good faith, redhibition is expressly available under C.C. 2529 (see also C.C. 1824-1826).”

Plaintiff also cites the case of Cutrer v. Kentwood Motors, Inc., 351 So.2d 817 (La.App. 1st Cir. 1977), which sets forth the applicable law in an action for redhibition:

“In order for plaintiff to maintain his action in redhibition he must prove: (1) that pickup truck was useless for the purpose for which he bought it, (2) that a non-apparent defect rendering the truck useless existed at the time of the sale, and (3) that the seller was given a fair opportunity to repair the defect. LSA— C.C. arts. 2520, 2530 & 2531. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976), Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3rd Cir. 1976).
* # # * * *
“Secondly, the purchaser is not burdened with the impossible task of proving the cause of every defect or difficulty he encounters with a complicated piece of machinery, and it is only sufficient that he merely show their existence. Harris v. Drexier Motor Company, Inc., 339 So.2d 1304 (La.App. 1st Cir. 1976). Proof that the defect existed at the time of the sale can be by either direct or circumstantial evidence giving rise to the reasonable inference that defects existed at the time of the sale. Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975), and the standard to determine the sufficiency of the evidence is ‘when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not’. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).” 351 So.2d at 818-819.

Carter’s complaints about the truck centered around troubles with the power steering, consumption of excessive amounts of oil, imbalance of the wheels and malfunction of the clutch. Although he and his wife insisted the truck was only usable for a total of approximately 50 working days during the ten months Carter had this truck in his possession, the evidence of the times the truck was actually laid up for repairs does not bear this out.

John Evans, president of Community Motors, Inc., testified that although he told Carter at the time of the purchase of the truck Community could not service it, he did, indeed, attend to the complaints about the power steering, first brought to his attention by Carter on May 7, 1976, by replacing a valve on the steering. At this time the truck had already been driven 5,904 miles.

Evans also said that according to his records and personal recollection, a new power steering pump was then installed on June 21, 1976, when the odometer indicated 6,357 miles and one more power steering pump was installed on July 2, 1976.

At the trial Evans further explained that, although there was a possibility even one more steering pump was installed in Carter’s truck around that period, these parts were always sent immediately to Community from Chrysler, resulting in an approximate stay of the truck in the shop of three days for each repair. He further stated he had received no further complaints about the steering since the last repair in July and that the plaintiff was not asked to pay for parts or labor on any of the steering repairs.

Regarding excessive use of oil by the truck, plaintiff testified he took the truck on April 9, 1976 to Cummins Engine Co., Inc. Denzil A. Wooton, an employee of Cummins for the past 21 years, testified the truck evidenced a rear bearing leak, which is a random type failure requiring only approximately one day to repair, and which was covered by warranty. In spite of the fact Carter was told by the company to come back when their new facility opened (which occurred the following month), Carter never returned with the truck for repair nor did he ever check to see if the new shop had ever opened.

Both Wooten and Joe Knowles, who was qualified by the court as an expert in the field of maintenance and repair and had extensive training in repair of Chrysler products, testified that a neglect of the repair of the rear bearing oil leak could lead to serious problems with the truck’s clutch.

It is not surprising, therefore, that on December 1, 1976 Carter took the truck to Standard Motors, Inc., complaining of clutch problems. This was the only time the truck had been presented to Standard since the purchase of the truck in January, with the exception of a repair on February 16, 1976, when the truck was sent to Mar-got, Inc., by Standard for the purpose of balancing the front wheels. There was convincing evidence adduced at trial that Standard completed the repairs of the clutch on December 16, 1976 and that this was communicated to the plaintiff at that time. The clutch had been replaced and the clutch slave cylinder had been reconditioned; however, since the truck already had 15,242 miles on it, the terms of the Chrysler warranty required the plaintiff to pay for one-half of the repair bill. He subsequently complained to Evans at Community that he did not have the money to pay for the repairs. The truck, therefore, stayed at Standard until January 20, 1977, when it was seized by the bank which held a mortgage on the truck.

Part of plaintiff’s burden in an action of redhibition includes proof that it is more likely than not that the defect or defects complained of existed in the thing prior to its purchase by the buyer. See Bendana v. Mossy Motors, Inc., 347 So.2d 946 (La.App. 4th Cir. 1977). In the case before us, however, it is obvious, as shown above, the defects complained of did not evidence themselves until months after the purchase; furthermore, we have only the self-serving testimony of the plaintiff himself that such defects existed at times other than the repair dates and that they were more extensive than the repair records indicate.

As to the more likely reasons for the development of the truck’s operational problems, both the plaintiff and his driver testified the truck was driven by them on interstate highways, as well as back roads. A representative of Kentwood Tile Company testified Carter transported loads of up to 12,000 bricks weighing as much as five pounds a brick, or 60,000 pounds, although frequently the loads were less than this amount.

Witnesses at the trial also established Carter had changed the front tires on the truck to highway tires, added a fifth wheel to it so he could attach a dump truck body, and also, at some point, shortened and welded the frame of the truck. These changes in the vehicle were all made by acquaintances of the plaintiff without consulting Community, Standard or Chrysler manuals or representatives. Moreover, there was no evidence the truck had been serviced or maintained by the plaintiff other than his own testimony that he changed the oil and oil filters himself, and his testimony as to how often he performed these services was contradictory.

Knowles, who heard all of the above testimony during the course of the trial, explained that before the hearing he test drove the truck himself, found it to be in good working order with an absence of any steering or clutch problems, and could not designate the truck as a defective vehicle.

In regard to the problems the plaintiff had with the truck, however, he explained the truck in question was a “short haul” vehicle, designed for an around-town top speed of 50 miles per hour and he said the truck’s top hauling capacity was 40,000 pounds.

He characterized the longer highway hauls at up to 55 miles per hour, carrying loads of up to 60,000 pounds, as “owner abuse.” He explained at length that such an overload, especially at high speeds, would strain all components of the truck, shorten its life, and could cause failure of the power steering due to overheating the pump.

Knowles further testified that the welding of the frame had shortened the life of the truck by more than half and that the failure to repair the oil leakage, combined with the overload, could cause a complete clutch failure.

Although Carter first testified he never received an owner’s manual with the truck, he later admitted he had received an “operator’s” manual but had not read it nor did he look at the maintenance schedule.

Knowles explained that regular maintenance on a truck of this size is critical and neglect of such would lead to serious problems. He also added the problems the plaintiff experienced with wobbling wheels and shaking of the steering wheel were probably due to his attempt to run the truck at high speeds on the highway with the front flotation tires with which the vehicle came equipped. He added such tires are not designed for highway driving and balancing them would not correct this problem as long as the truck is driven at high speeds.

' Although all witnesses consistently testified Carter had told representatives at both Community and Standard his purpose in purchasing the truck was to “haul bricks,” Moore testified he specifically told Carter about the load and speed limitations on the vehicle. He further stated he had shown long-haul highway vehicles to Carter, who indicated their price would be a problem for him and opted to purchase the subject vehicle. Furthermore, the fact the vehicle was only licensed to carry a 32,000-pound load is another indication Carter was aware of its load and speed limitations.

In the case of Ditta v. Polk Chevrolet, Inc., 196 So.2d 672, 674 (La.App. 1st Cir. 1967), the court said:

“ ‘(2). It is settled that in an action to set aside a sale on a plea of redhibition where complicated machinery is involved, it is not necessary for the buyer to seek out and prove the particular and underlying cause of the defect which makes the object sold unfit for its intended use. It is sufficient that he allege and prove that such a defect exists. * * *
“In applying the above principles the courts of this state have held that a plaintiff need only prove that the thing purchased has failed to perform in the manner in which it was intended to perform, and that this failure was under conditions of normal use. * * * ” (Emphasis ours.)

We conclude plaintiff failed to carry his burden of proof that any defect existed in the truck prior to his purchase of it, and furthermore that any problems which developed with the truck were more likely than not the result of the plaintiff’s abuse of the vehicle. We do not find the trial court’s factual findings in this case “clearly wrong,” and in the absence of such a finding we are bound not to disturb them. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, the trial court’s decision is affirmed in all respects.

AFFIRMED.

      . Furthermore, we do not find anything reprehensible in a trial judge — or a judge at any level — incorporating in his own reasons for judgment expressions by counsel in their briefs.


text:
    James M. CANCIENNE v. Fay Ann Ziegler, Wife of James M. CANCIENNE.
    No. 11104.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.
    Amato & Creely, Roland A. Ditta, Gret-na, for plaintiff-appellant.
    Anthony A. Fernandez, Jr., Chalmette, for defendant-appellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   CHEHARDY, Judge.

Plaintiff-appellant, James M. Cancienne, on December 15, 1978, filed suit for divorce against his wife, Fay Ann Ziegler Canci-enne, on the ground of adultery, and for custody of the 13-year-old child of the marriage, Melissa.

Defendant-appellee answered and reconvened for a separation from bed and board on abandonment and cruel treatment and additionally, sought custody of the minor child, alimony and child support.

The custody rule was heard on January 5, 1979 before Judge Richard H. Gauthier, and temporary custody of Melissa was granted to Mr. Cancienne. In giving his reasons from the Bench, Judge Gauthier explained that “ * * * while adultery has not been proven, the appearance of adultery has. I do not feel that the situation that is now existing * * * is the correct type of family situation to bring up a young girl * * *He added, however: “This is only a temporary thing. I believe the proper upbringing of a young lady is with her mother. Should your wife straighten out and do the right things, I will lean towards giving Melissa back to her.”

Trial on the merits was delayed due to the recusation of Judge Gauthier and was then heard on May 11, 1979 before Judge Melvyn J. Perez, who found that adultery had not been proven, and awarded custody of Melissa to Mrs. Cancienne. Relative to the defendant’s reconventional demand, Judge Perez decreed a separation from bed and board based on mutual fault.

As per agreement and stipulations between the parties, he also ordered Mr. Can-cienne to pay Mrs. Cancienne alimony and child support in the amount of $628 per month, out of which Mrs. Cancienne would pay the house note of $128.

Pay and James Cancienne had been married for more than 20 years and two children had been born of the marriage: Melissa, 13 years of age, and Deborah Ann, 18 years of age. Both parties testified there had been problems in the marriage for many years. In the latter part of 1978 Mr. Cancienne complained to his wife about the presence of 22-year-old Timothy Lutz (a friend of her 18-year-old daughter’s ex-boyfriend), who was a constant visitor to the Cancienne home.

On December 13, 1978, while Mr. Canci-enne was supposedly on a business trip, two of his friends watched the family home overnight from a vantage point across the street.. During the evening both testified they saw a young man drive Mrs. Cancienne and Melissa home, enter the residence, and the next morning saw the young man leave looking a bit disheveled, as if he had just gotten dressed. One of the observers, however, also testified he noticed activity in the home before the three arrived on the evening of December 13, indicating the presence of another person in the house that night.

This testimony was not contradicted by Mrs. Cancienne, who admitted that Lutz did spend that particular night at her home, that he lived in her home from then until January 4, 1979, that she loved this man and frequently hugged and kissed him in front of her children, and that they often prayed together in her bedroom.

Testimony at the custody hearing in January 5, 1979 established Mrs. Cancienne allowed Lutz to move into the Cancienne family home, to keep his clothes there, eat his meals and sleep in the family home for more than a total of two weeks. Mrs. Can-cienne admitted she spent extended periods of time with Lutz behind locked bedroom doors. She contended that during these intervals in the bedroom their time was spent in prayer.

Subsequently during trial on the merits in May of 1979, Mrs. Cancienne repeated her earlier testimony concerning Lutz’s living at the Cancienne family home and admitted that, although Lutz now lives in his own apartment, she visits with him in his apartment at least three times each week and is, on other occasions, in his company.

Reverend Marvin E. Gorman, pastor of the First Assembly of God Church which Mrs. Cancienne and Lutz attend, in response to a letter from Mr. Cancienne complaining about his wife’s activities with Lutz, stated in part in a letter to Mr. Canci-enne, dated December 15, 1978:

“This week I met with Faye and Tim and talked with them privately as well as together concerning the seriousness of the problems that have developed because of their relationship and involvement. I told them they would have to either break off their relationship or leave the church. It is very hard for a pastor to take this kind of stand because I love people, but I cannot condone such immoral relationships.”

Properly the pastor would not disclose in testimony his conversation with Mrs. Canci-enne and Lutz; however, his letter, admitted in evidence, is suggestive that Reverend Gorman believed more than a platonic relationship existed between Lutz and Mrs. Cancienne.

It is our opinion that the trial court should have granted Mr. Cancienne a divorce on the ground of adultery. In view of the strict requirement on this court to show the manifest error which causes a determination to reverse the finding of fact of the trial judge, we should like to quote excerpts of testimony from Mrs. Cancienne, her daughters and Mr. Cancienne.

Mrs. Cancienne testified at the hearing for custody on January 5, 1979 as follows:

“Q Did Reverend Gorman tell you you would have to break off your relationship with Tim or leave the church?
A Yes. But, he told me if I came to church alone, I didn’t have to break it off. He told me as far as Tim and I coming to church together, he would have to find a better way to get there. But, if I came alone he never said he would put me out.
Q Did he tell you, and I am quoting Reverend Gorman, T cannot condone such immoral relationship’?
A Right.
Q He said that to you?
A Yes.
Q Now, Timothy Lutz, did he spend the night at your house on Monday, December 4th, 1978, when your husband was away on business for Kaiser?
A Um — that was the first time, yes.
Q Did you tell your husband that Timothy Lutz spent the night there?
A No.
Q Were the two girls in the house?
A Yes.
Q Were they in the house all night?
A Yes.
Q Was Timothy Lutz there all night?
A Yes. He was locked in my bedroom.
* * * * * *
Q Since the papers were served, which was I think December 15th, the day after that, approximately how many nights did Tim spend in the house with you and the child?
A I don’t know.
Q Would you say four or five times a week?
A Well, Tim does not have any place to stay anymore. He has no job and no place to stay.
Q He stays there everyday?
A Yes.
******
Q Are you furnishing him food?
A Yes.
Q Does he have his clothes at your house?
A Yes, some. Just the clothes he has to wear to change everyday.
******
Q Are you having physical relations and making love?
A The only thing I do is kiss him.
Q Have you ever—
A No.”

At the custody hearing Mr. Cancienne testified:

“Q Did your daughter tell you prior to filing this suit for divorce on the grounds of adultery, did she tell you about Tim taking baths and walking around with only a towel on?
A Yes.
Q Did she object to it?
A Yes.
Q Which daughter told you about it?
A The nineteen year old.”

Testimony given by Deborah Cancienne at the custody hearing on January 5, 1979 was:

“Q When did your father move out?
A I really don’t remember. I think the 14th of December.
Q Now, do you know who had spent the night there the night before, at your house?
A Timothy Lutz.
Q And your mother was there?
A Yes, sir.
Q And was your thirteen year old sister there?
A Yes.
Q Tim spent the entire night?
A Yes.
Q Had he spent the night previously there?
A Yes.
Q How many times, approximately?
A Ever since my dad left he had been staying.
Q If I understand you correctly, from December 14th until now?
A Yes.
Q Have you see your mother and Tim kissing?
A Yes.
Q On many occasions?
A Yes. When I was going out with Roland, too.
Q Does this go on everyday?
A Yes.
Q Has your mother said to you that she is in love with Timothy?
A Yes, sir.
Q Have you observed anything to make you think that Timothy is in love with your mother?
A He is.
# * sf: * $ ^
INTERROGATION BY THE COURT:
Q Miss Cancienne, have you ever seen your mother and Timothy doing anything else but kissing?
A Just hugging. I never did see anything else.
l|(
Q You are living in the same household with your mother, sister, and Tim?
A Yes.
Q Do you ever see them go into the bedroom together?
A Yes.
Q Do they close the door?
A Yes.
% # # # H* #
BY MR. TAPPER:
Q Miss Cancienne, you said you have seen them go in the bedroom and close the door?
A Yes.
Q How long ago was that?
A Yesterday. They go in there and pray and all. We have to knock before we enter and my mother never did tell us to do that before.
Q You go in there and knock?
A I got to knock first and they tell me to come in.
Q How long does it take?
A Just a few minutes. Sometimes they lay on the bed next to each other. One time I opened the door. Usually they kiss. I never did see them do anything.
Q You have walked in on them?
A Yes.
BY THE COURT:
Were they fully clothed?
BY THE WITNESS:
Yes.
BY MR. TAPPER:
$ $ # * ‡ #
Q Have you and Melissa seen your mother, while Tim was there, in a condition other than being fully clothed?
A Only when Tim was in a towel.”

Melissa Cancienne testified at the hearing on the custody rule:

“Q And do you know who Tim is?
A Yes.
Q Who is he?
A My momma’s boyfriend.
Q And how long has Tim been living in the house?
A A couple of weeks.
******
Q Does he keep his clothes in the house?
A Yes.
Q Does he use the telephone and utilities and electric and water as he pleases?
A Yes.
Q Does he spend the night most of the time?
A All of the time.
******
INTERROGATION BY THE COURT:
******
Q Have you ever seen your mother and Tim doing anything to lead you to tell me that they are boyfriend and girlfriend?
A No, sir.
Q Have you ever seen them kissing?
A Yes.
Q Anything else?
A No.
Q Have your ever seen them in the room together by themselves?
A Yes.
Q Do they sometimes close the door?
A Yes.
Q Have you ever walked in on them?
A Yes.
Q What were they doing?
A Talking.
Q Have you ever seen them laying on the bed together?
A Yes.
Q Were they clothed or unclothed?
A Clothed.
Q Have you ever seen your mother and this boy, Tim, having anything of a sexual relationship?
A No.”

At the end of the hearing for custody the court in awarding temporary custody to the father observed:

“BY THE COURT:
* * * The court, on the basis of the ( evidence that came out today feels that while adultery has not been proven, the appearance of adultery has. * * * Now, in the future should Mrs. Canci-enne decide that she wishes to purge herself of the type of situation that she is involved in with the young man, upon doing that, Mr. Tapper is to advise the court that he will petition for custody again. * *

Subsequently at the trial on the merits in May 1979 substantially the same testimony was elicited. However, the record does disclose that since January 5, 1979, Timothy Lutz has been living in his own apartment, but the close relationship continued to exist between Lutz and Mrs. Cancienne.

Of particular importance is Reverend Gorman’s testimony at the trial on the merits regarding his letter to Mr. Cancienne referred to above:

“Q Reverend Gorman will you tell the court in your own words what you know of Tim and Fay?
A Let’s stick strictly with the contents of the letter. My conversation with them privately and both together at which time they divulged something to me that I based my letter upon. The contents of the letter was based upon the time of counsel I spent with them and not something that I thought of or surmised or what have you. It is based on their personal testimony to me.
Q Did you in fact ask them to leave your church?
A I did. Unless the relationship was broken off. I told them I would work with them in any way possible to help them to re-adjust and try to be a Pastor to them. Both of them agreed with me that they would do such but then later decided against it.
Q Did you state, I cannot condone such immoral relationships?
* * * * * *
A I did make the statement to both of them, individually and together.”

At the trial on the merits Mrs. Cancienne stated:

“Q Has he spent any night since January 5, 1979?
A No. Because he would not do anything to hurt me or to cause me to lose my children.
Q Have you gone out with him since January 5, 1979?
A Yes.
Q And how often?
A To church.
Q And how often has that been?
A Two or three times a week.
Q Are you still going to church with Timothy Lutz?
A Yes, sir.
Q When was the last time you saw him?
A Yesterday.
* * * * * *
Q Have you been to his apartment?
A Yes.
* * * * * *
Q Well, say the past week, how many times have you been to his apartment in the past week?
A Three times.”

Melissa Cancienne testified at the trial on the merits:

“Q Melissa, when your mother and Tim — when Tim spent the night over there were you all at home?
A Yes.
Q Did your mother and Tim ever lock the door to the bedroom and forbid the children from entering?
A No.
Q Never?
A They locked to pray and all that. But I would look under the door. They weren’t doing nothing.
Q You would look under the door?
A Yes.
Q How often did you look?
A I stayed there until they opened it.
Q Did on one occasion you slide a mirror under the door?
A Yes, me and my sister.
Q Did you see your mother and Tim kissing?
******
Q Did you see them kissing?
A Behind the door?
Q No in the home?
A Yes.
Q Did you see them watch television together?
A Yes.
Q Did Tim have his head on your mother’s lap while they were watching television?
A Yes, sometimes.
******
Q Does your mother in your opinion love Timothy?
A Yes.
******
Q Did your mother hug and kiss Tim in the presence of yourself?
A Yes.”

Deborah Cancienne gave the following testimony at the trial on the merits:

“Q Let’s be a little more specific than that. I think you know why we are here. Is Timothy Lutz your mother’s boyfriend?
A Yes he is.
Q Has Timothy spent the night in the house with your mother and yourself?
A Yes, sir.
Q Has he done that on several occasions?
A Yes, sir. He has.
* * * * * *
Q December 14th to January 4th a period of two and a half weeks you recall whether or not Timothy spent each and every night in the house?
A Yes he did.
Q Did you spend the night in the house?
A Yes, sir.
Q To your knowledge, did Melissa spend the night in the house?
A Yes she did.
* * * * * *
Q Have you ever seen your mother kiss Timothy?
A Yes.
Q Does your mother watch television with her head lying in the lap of Timothy?
A No she cuddles on his shoulder.”

The adultery of a spouse may be established by indirect or circumstantial evidence considering that the very nature of the act makes positive or direct evidence thereof most difficult. See Udin v. Levin, 273 So.2d 56 (La.App. 4th Cir. 1973), and Morris v. Morris, 336 So.2d 254 (La.App. 1st Cir. 1976).

In Udin, supra, the court reversed the trial court and awarded the appellant a judgment of divorce on the ground of adultery. In that case Mrs. Udin had been seen alone with the co-respondent in his apartment for a number of hours on several occasions after the lights had been extinguished. The court said at page 58:

“We have detailed the foregoing testimony because it is significant in a number of respects. For instance, the parties do not deny that they were together in the apartment at the times alleged in the petition and they readily concede that there were occasions when the two spent the night together in the co-respondent’s apartment. Also, it is apparent that this couple maintained a very close personal relationship during the period of time when the acts of adultery allegedly were committed and in fact their relationship was so close that it was characterized by the co-respondent as ‘romantic’ and was consistent with the wife’s statement of her own intention to be married to the co-respondent. Such circumstances certainly render applicable the following language in Morris v. Morris, La.App., 152 So.2d 291, cited with approval in Poole v. Poole, La.App., 189 So.2d 75:
‘. . . Both appellee and Harler conceded that on several occasions they were together in appellee’s apartment until the early morning hours. In fact our careful reading of the record in this case reveals that appellee and Harler admitted virtually all of appellant’s evidence denying only that they committed the act of intercourse itself. We believe the record herein fairly and reasonably shows, to that certainty required by law that the opportunity and inclination to commit adultery has been established . . . ’”

In explanation of the burden of proof that a husband must bear in a suit charging his wife with adultery, the court said in Bynum v. Bynum, 296 So.2d 382, 386 (La.App. 2d Cir. 1974):

“In Karl v. Karl, 191 So.2d 674, 675-676 (La.App.2d Cir., 1966), we emphasized certain principles which are appropriate here. There we stated:
‘The rule is well established in the jurisprudence of this State that a wife’s innocence of immoral acts is presumed; that the burden is upon the husband, in charging her with immorality, to establish the adulterous relationship by either direct or circumstantial evidence; and that, if circumstantial evidence is alone relied upon, the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt. * .

We can only conclude that the evidence presented establishes the legal certainty required to prove Mrs. Cancienne is guilty of adultery and plaintiff should be granted a divorce a vinculo matrimonii.

We therefore reverse that portion of the judgment dismissing the demand of James M. Cancienne and order that a divorce a vinculo matrimonii be granted in favor of James M. Cancienne and against Fay Ann Ziegler Cancienne.

Because considerable time has elapsed since the trial on the merits we deem it to be to the best interest of the minor child Melissa Cancienne to remand the question of custody, child support and visitation rights to the trial court. Until such time as the trial court disposes of these issues, custody, subject to visitation rights, shall remain with Mrs. Cancienne and child support shall remain at $628 per month. Mrs. Can-cienne is to pay the house note out of this amount.

Each party is to pay his or her own court costs.

REVERSED IN PART; AND REMANDED.


author: BOUTALL, Judge.

text:
    Rose BOE, w/o Charles Bonomo, William J. Boe, Ruby Boe, w/o Henry J. Jastram and Joseph P. Boe v. LAKE FOREST, INC.
    No. 10943.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1980.
    Rehearing Denied July 3, 1980.
    Richard J. Meunier of Meunier, Martin & Meunier, New Orleans, for Rose Boe, w/o Charles Bonomo, et al., plaintiffs-appellants.
    Nathan T. Gisclair, Jr. of Montgomery, Barnett, Brown & Read, New Orleans, for Lake Forest, Inc., defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is an appeal from a summary judgment dismissing plaintiffs’ suit. Plaintiffs are the brothers and sisters of Louis Boe claiming certain property in Orleans Parish (a portion of New Orleans East) as heirs of the said Louis Boe, alleging that Boe acquired the property by 30 years acquisitive prescription under Louisiana Civil Code Article 3475. The defendant, Lake Forest, Inc., is alleged to have claimed ownership of the property, and to have sold some portions of it to others, causing damages to plaintiffs. The defendants have raised a number of exceptions and a prior motion for summary judgment, and now have brought a new motion for summary judgment which was sustained by the trial judge, dismissing plaintiffs’ suit. The plaintiffs appeal.

The basic premise of this motion for summary judgment is that the defendant does not now own any of the property which is the subject of this petitory action, but that it has subdivided the property and sold it to third parties, with the exception of those public areas such as streets, etc., which were transferred to the City of New Orleans. Thus, not having nor claiming title nor possession to any of the property, it is not subject to a judgment in a petitory action. As to the alternative claim for damages, the defendant contends that under the facts as they are shown, there is no basis in law for a suit for damages.

In this appeal the plaintiff Boe heirs assert three assignments of error. The first of these is that the matter was referred to a commissioner of the Civil District Court for the Parish of Orleans, and that the commissioner has no authority under L.R.S. 13:1171 to try a motion for summary judgment, being restricted only to lengthy trials on the merits.

We have examined the procedural posture of this case and note that, after the very lengthy and numerous exceptions and motions for judgments had been filed preliminarily, the case had been placed in the posture of being ready for trial on the merits and it seems apparent that this trial would have taken a number of days, depending of course upon the number of witnesses available for testimony. The matter was thus not only properly referred to the commissioner, but the plaintiffs raised no objection to the submission to the commissioner. After the commissioner received the case, he held pre-trial conferences to work out the trial procedures, and during these conferences was confronted by two major items, one was the request for admissions of certain facts by the plaintiffs, filed by the defendant, and the other was a subsequent motion for summary judgment based to a large degree upon the request for admissions. The commissioner concluded that motion for summary judgment was proper and rendered a report recommending to the judge that summary judgment be granted. Plaintiffs then filed exceptions to the report of the commissioner which were heard and decided by the judge, who concluded that summary judgment was justified in this case and rendered judgment dismissing plaintiffs suit.

Under these circumstances we see nothing procedurally erroneous in the actions of the trial judge and the commissioner. First we point out that no timely objection was raised to this procedure, the only objection coming after the commissioner had rendered his report. Second, we note that the recent amendments of Section 1171 (C) has apparently changed the former restriction which provided that the “judge may transfer such case to the commissioner with instruction to the latter to try it.” To a more liberal provision that “the judge may assign such case to one of the commissioners.” It is our interpretation that the latter provision gives to the commissioner, unless otherwise restricted by the judge or the rules of the Civil District Court, the authority to handle the matter as justice and the circumstances of the case require. Lastly, we point out that the commissioner only rendered a report of recommendation, and that the judgment appealed from is a judgment of the trial judge rendered after hearing of the exceptions and considering the entire matter of the motion for summary judgment. Summary judgment is based upon a showing of no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. C.C.P. Article 966. Accordingly the issue was ultimately decided by the court and the commissioner’s report is of no importance in this appeal.

The second assignment of error is that the motion for summary judgment was improperly decided on its merits as to the petitory action brought by plaintiffs.

We are convinced that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. Appellant has asserted that this motion for summary judgment is the same as a prior motion for summary judgment which had been dismissed by the trial court and its dismissal affirmed by us on issuance of writ of certiorari. The proof offered is simply not the same. In addition to those materials that were offered on the prior motion, mover has offered other evidence which we consider to be decisive, and which has not been disputed by the respondent. C.C.P. Article 967. Mover had served plaintiffs with request for admissions of fact together with interrogatories, presenting in essence the following facts: That the land claimed had been sold or divested by defendant, that no notice of lis pendens had been filed, that the schedule of notarial acts annexed thereto, purporting to be all of the sales, etc. by Lake Forest, were a part of the public records, and that Lake Forest had divested itself of all of the property enumerated. Plaintiffs have failed to answer the request for admissions and the interrogatories, and it was presumed by the court that this failure to answer constituted an admission of the content thereof. C.C.P. Articles 1466,1467,1468. Both the commissioner and the trial judge afforded the respondent in rule an opportunity to produce evidence contrary to that furnished along with the request for admissions, and the respondent has failed to do so. Thus we find no genuine issue of relevant fact.

It follows then as a matter of law that a petitory action does not lie against this defendant. The legal basis for a petitory action is stated in C.C.P. Article 3651:

“Art. 3651. Petitory action
“The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.”

The requirement of this article is that the action must be brought directly against the adverse claimant of ownership or against the person in possession. Any possible judgment that might be rendered in this case would have no legal significance, nor would it affect any of the rights of those parties who may claim adverse ownership or possession, none of whom are made parties to this suit. Accordingly, we will affirm the summary judgment dismissing the petitory action.

The last assignment of error is the summary judgment dismissing the damage suit.

That demand was installed in a supplemental and amended petition which alternatively alleged that in the event that defendant Lake Forest had divested itself of possession of property, that plaintiffs were entitled to be reimbursed for the value of the property which they fix at the sum of $7,000,000. The pleading further reurged and reaffirmed all the allegations of the prior petitions. Plaintiffs contend that the action of the defendant is disposing of all of the property would require plaintiffs to file a suit against all of the present owners to recover their property, a matter of extreme difficulty which would cause numerous suits and considerable extra court costs and other expenses. Accordingly, plaintiff urges that because Civil Code Article 2315 provides that anyone who has caused damage to another shall remedy the damage and that, because the actions of defendant have divested plaintiffs of title and it cannot return the property, Lake Forest should return to plaintiffs the money received from the sales. There is no issue of fraud raised and plaintiffs have not been able to furnish us with any citation of authority which would give rise to a cause of action under the admitted facts of this case. The damages spoken of in Civil Code Article 2452 are those which arise on behalf of the buyer, not any third person who may claim ownership. While the defendant may very well be subject to be called in warranty or as third party defendants by its vendees to answer in damages, we do not perceive a valid foundation for damages by these plaintiffs based on the facts shown. Accordingly, the motion for summary judgment dismissing the damage suit is affirmed.

For the reasons above stated, the judgment appealed is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    Jacques J. CREPPEL, H. Edward Molaison, Linsey Molaison, Karen L. Knight, Kathleen C. Carter, Daniel L. Morrow, Robert Pitre, William Pitre, Dr. Irvin Goldman, Dr. Bermand Goldman, Dr. William Mosby, Dr. B. R. Eubanks, Dr. Robert Fleming, Barry Samuel, Bernard Samuel, Marlene Samuel, and Curtis H. Everett, v. The PARISH OF JEFFERSON, the Jefferson Parish Council, the Consolidated Drainage District No. 1 of the Parish of Jefferson, Douglas A. Allen, Individually and in his Capacity as Jefferson Parish President, and Lloyd F. Giardina, James E. Lawson, Beauregard H. Miller, Jr., James J. Donelon, Lawrence W. Heaslip, Jr., Robert L. Deviney, Jr. and George J. Ackel, Individually and in their Official Capacities as Members of the Jefferson Parish Council.
    No. 10482.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 1980.
    Rehearing Denied July 3, 1980.
    Milling, Benson, Woodward, Hillyer, Pier-son & Miller, Joseph E. LeBlanc, Jr., New Orleans, for plaintiffs-appellees.
    Harry Lee, Parish Atty., Henry G. Sullivan, Jr., Denis P. Ganucheau, Asst. Parish Attys., Gretna, for defendants-appellants.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

This suit by citizens of and landowners in Consolidated Drainage District No. 1 basically questions the validity of a decision of the Jefferson Parish Council to abandon the pumping station phase of a hurricane protection-drainage project, that was 80% completed with funds derived from a bond issue, and to complete the project with the installation of floodgates. The Parish of Jefferson has appealed from a judgment granting a final injunction after a trial on the merits. The judgment of the trial court perpetuated the preliminary injunction ordered by this court (352 So.2d 297) and ordered the Parish to proceed with construction of the pumping station at Bayou Aux Carpes.

I

The detailed facts outlined in this court’s previous opinion are accepted for purposes of this decision (except for the statement that so-called environmental groups offered on October 7, 1976 to withdraw their opposition to the Lafitte-Larose Highway in exchange for the Parish’s abandoning the Bayou Aux Carpes pumping station plan and adopting the plan to install floodgates). However, the following crucial operative facts are reiterated for emphasis as the basis of this decision.

In 1961 the U.S. Army Corps of Engineers (Corps) proposed a flood control project for the west bank of Jefferson Parish. The project consisted of Phase I, the construction of levees along the Intracoas-tal Waterway (called the Harvey Canal-Bayou Barataría Levee) and the placement of dams and dikes at the mouth of Bayou Aux Carpes and at Bayou Des Families, and Phase II, the installation of a pumping station at Bayou Aux Carpes. By a 1963 resolution the Jefferson Parish Counsel approved the project and agreed to obtain the necessary servitudes, to construct the pumping station, and to furnish the Corps with other assurances of local cooperation.

In 1967 the voters of the drainage district approved a bond issue of $3,656,000 to construct a number of drainage works, including this project. Prior to the election the Council had circulated to the voters a brochure expressing the need for hurricane and flood protection and for drainage improvement and describing the projects proposed to be undertaken with funds from the bond issue. While the brochure specifically described the Harvey Canal-Bayou Barataría Levee as a “hurricane protection levee”, the pumping station was intended to provide improved drainage to the Crown Point area, and installation of levees, drainage canals and the pumping station would result in making lands currently subject to tidal overflow available for residential and industrial use.

In 1969 the Council obtained the servi-tudes for the project’s levee and drainage ditches, some of the grantors being the plaintiffs in this suit.- The servitude contract recited that the Corps had agreed to build a levee and drainage ditches and that the consideration for the servitude was “the benefits and improvements to be derived by Grantors and the enhanced value resulting to Grantors’ properties which will accrue as a result of the said Harvey Canal-Barataria Levee Project”.

Construction of Phase I was begun in 1971 and completed in 1973, at which time the entire project was 80% complete. After public bidding, the Council in 1974 let a $476,479 contract for construction and installation of the pumping station, and the contractor purchased $186,630 of materials, which were delivered to the site. Construction was halted, however, in November, 1974 when the Corps determined that the remainder of the project should be reviewed under recently published federal regulations. Although the Corps after a hearing recommended that the project be completed according to previous plans, the Environmental Protection Agency (EPA) objected to the destruction of the wetlands by pumping and recommended removal of the dams and dikes, thus returning the land to natural drainage and preserving the wetlands.

The project remained at a standstill during further administrative procedures at the local and national levels until General Wilson, the Corps’ Deputy Director in Washington, in August, 1976 advised EPA that the Corps would proceed immediately to complete the planned project unless the EPA exercised its veto power. EPA asked for additional time to complete the review.

According to General Wilson, EPA hardened its position in opposition to the pumping station and stated it would invoke its veto power. He accordingly began to consider other alternatives and on October 7, 1976 set up a meeting on the site with representatives of the Council, the landowners, and civic groups concerned with environmental protection. An officer of one civic group suggested it would not oppose the project if the dams and dikes were removed and floodgates installed so as to offer hurricane protection while preserving the wetlands. Later the same day General Wilson stated privately to one councilman that if they sought to overturn an EPA veto in federal court in Washington, their legal position would be weak. While he assured the councilman that the Corps would abide by the Parish’s decision as to either alternative (pumping station of floodgates), he pointed out there would be litigation whichever way they went — a suit by the civic groups, if they attempted to construct the pumping station, or a suit by the landowners, if they attempted to install the floodgates. He further pointed out that the Corps was primarily interested in the benefits of hurricane protection, which would be the same under either alternative. After discussion with other officials the councilmen reported that they would prefer to complete a hurricane protection project immediately rather than to be tied up indefinitely on the pumping station feature of a project they had been trying to complete for nine years and which then offered little prospect for completion.

General Wilson accordingly issued an order to the Corps’ local engineer directing removal of the dams and installation of the floodgates for use only during flood control conditions. This suit by the landowners followed, seeking to enjoin the Parish from expending funds from the 1967 bond issue for any purpose not included in the original project and from abandoning the project as originally authorized by the Council's 1963 resolution.

After a hearing the trial court dismissed the rule for preliminary injunction. This court reversed, holding that plaintiffs had made a showing sufficient to warrant issuance of a conservatory writ maintaining current status until the hearing on the merits of the final injunction.

On remand the trial court, after a hearing, granted the final injunction and ordered completion of the pumping station. The Parish then appealed.

II

The Council, after representing to the voters that the bond issue funds would be used to construct a pumping station as part of a drainage improvement project, could not arbitrarily change the project to install floodgates which offered no improvement to drainage (but did offer the same degree of hurricane protection). This appeal essentially turns on the question of whether the Council’s decision to make the change was reached arbitrarily, without reasonable basis.

We hold that although the members of the Council acted in good faith, they could not base their abandonment of a key portion of the project, represented to the voters as the intended use of the bond issue funds, on the hearsay statement that EPA would veto construction of the pumping station.

Admittedly, the Council (and its predecessor group) had diligently attempted to complete Phase II from the time Phase I was completed in 1973 until the alternative project was proposed in late 1976. Besides experiencing the frustration of delay, the Council had been informed that attempted construction of the pumping station would provoke an immediate EPA veto, which was unlikely to be overturned in litigation, and would also be met with injunctive action by civil groups that would certainly cause additional delay and would probably result in an unfavorable decision. Under the circumstances the decision to proceed to immediate completion with floodgates, even though damage claims would probably be presented by the pumping station contractor and the landowners who granted servi-tudes can hardly be said to be based on improper motives. Nevertheless, the fact that the Council had represented to voters that the pumping station would be built as part of the project funded by the bond issue requires the holding that the pumping station construction cannot be abandoned merely on threat of stoppage by federal authority, but must be continued until the authority with supremacy exercises that power (which has never been used previously in any case). Abandonment based on hearsay cannot be approved, and the citizens of the drainage district are entitled to injunctive relief.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . In reasons for judgment rendered after the hearing on the final injunction the trial court expressly found as a fact that there was no such offer of compromise. The record clearly supports this finding. Indeed, these groups filed a suit to stop construction of the highway long after October 7, 1976, and that suit was ultimately settled when the state highway department (not the Parish) agreed to modify certain features of the highway objected to by these groups.

      . Of course, deletion of the pumping station and installation of floodgates would eliminate the land reclamation feature of the project.

      . If the Council had decided to change the project to one with floodgates in exchange for the promise by environmental groups to withdraw opposition to an unrelated highway project, such a decision would clearly be subject to attack as an unreasonable abandonment of the original project.

      . A breach of contract suit by the contractor has now been compromised.

      . This is not to say that the Council must attempt to overturn a veto, despite competent advice of the unlikelihood of success. But the Council must proceed at least to the point of veto.

      . Thus, we do not reach the issue of whether plaintiffs are entitled to injunctive relief as grantors of servitudes or defendants’ contention that damages in this respect caused by abandonment of the project can be compensated in money and are not a basis for injunction.


author: SAMUEL, Judge.

text:
    Marcy GERTLER et al. v. GONDOLA SKI SHOP, INC., et al.
    No. 11296.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 1980.
    Rehearing Denied July 3, 1980.

      Adams & Reese, Henry B. Alsobrook, Jr., and Edward D. Markle, New Orleans, for relators.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for respondents.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

This matter is before us on application for supervisory writs by Solomon North America, Inc., a foreign corporation.

Plaintiffs, Marcy Gertler and M. H. Gert-ler, husband and wife, filed this suit against Gondola Ski Shop, Inc. and Solomon North America, Inc. to recover $130,000 for personal injuries suffered by Mrs. Gertler on February 7, 1978 when she was injured in a ski accident near Aspen, Colorado.

Service was made on Solomon through the Louisiana Long-Arm Statute. Solomon then filed several exceptions, including the declinatory exception of lack of jurisdiction over the person of the defendant. All exceptions were overruled, and Solomon sought writs from the denial of its exception of lack of personal jurisdiction. We granted the application.

The petition alleges plaintiff and her husband attended a seminar in Aspen, Colorado which began February 4, 1978. Prior to making the trip, and acting through a travel agent in New Orleans, they rented ski equipment from the other defendant, Gondola Ski Shop, a Colorado corporation. When plaintiffs arrived in Aspen, the ski shop gave them possession of ski equipment allegedly manufactured by Solomon. On February 7, 1978 Marcy Gertler sustained injuries when she fell from her skis and the ski bindings allegedly did not release.

Plaintiffs base their claim to jurisdiction over Solomon on R.S. 13:3201, which provides:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(e) Having an interest in, using or possessing a real right or immovable property in this state; or
(f) Non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.” LSA-R.S. 13:3201.

Plaintiffs specifically rely on subpara-graph (d) as authority for proceeding against Solomon in Louisiana. They argue that while the accident occurred in Colorado, approximately 90% of the “damage”, in terms of medical treatment and pain, was sustained by Mrs. Gertler in Louisiana after her return. They also assert Solomon does business in Louisiana, but it is clear they had no contact with Solomon prior to the accident, and the equipment which allegedly caused Mrs. Gertler’s injuries had no connection with Solomon’s business here.

The issues before us were before the Second Circuit in the case of Rush v. Matson Navigation Company. In that case the plaintiff received injuries as a passenger on defendant’s steamship while the ship was between Hawaii and California. The defendant was a California corporation, and plaintiff made service through the long-arm statute. The Rush court summarized and disposed of the issues in a concise manner as follows:

“Plaintiff-appellant relies upon sections (a) and (d) of R.S. 13:3201 as affording the jurisdictional basis of this suit.
We find the provisions of La.R.S. 13:3201 are positive and free of ambiguity. The statute confers jurisdiction only:
(1) where one of the jurisdictional bases enumerated in subsections (a) through (e) is present; and then only
(2) where the cause of action arises from one of the jurisdictional bases specified.
Jurisdiction does not exist here under subsection (d) as it is expressly limited to cases in which the nonresident has caused ‘injury or damage in this state * * *’. Appellant’s injuries were concededly received while traveling between Hawaii and California. If subsection (a) is relied upon plaintiff must show defendant has transacted business in this state and also the cause of action is one ’arising from’ its business so transacted.
Appellant urges the agency agreements between Matson and the local travel agencies give the courts of Caddo Parish jurisdiction over defendant. However, plaintiff’s cause of action was not related in any way to the agreements between defendant and the agencies.
From the facts before us we find no connexity between plaintiff’s cause of action and defendant’s business activity within Louisiana. There is no evidence the ticket was purchased from Matson as a result of any activity conducted here by defendant.” (Emphasis added).

In the present case plaintiff was injured in Colorado. Therefore, the non-resident defendant has not caused “injury or damage in this state”. Moreover, there is no connection between plaintiffs’ cause of action and business activity carried on by defendant in Louisiana. There is no allegation or evidence that defendant’s skis were sold or otherwise became part of commerce in Louisiana and were then transported for use to Colorado. Nor was there any contact between plaintiffs and defendant in Louisiana. Consequently, plaintiffs’ cause of action does not arise from the non-resident defendant’s transacting business in Louisiana.

The result reached by this court is consistent with a recent pronouncement of the United States Supreme Court in WorldWide Volkswagen Corporation v. Woodson. In that case, plaintiffs purchased a new Audi automobile from a dealership in Messina, New York in 1976. In 1977 they left New York state and proceeded to a new home in Arizona. As they passed through Oklahoma, another car struck their vehicle in the rear and a fire resulted which caused severe burns to one of the plaintiffs and her two children. Plaintiffs sued in an Oklahoma district court on the theory the design and placement of the Audi’s gas tank and fuel system were defective. Among other defendants, they joined the New York dealership from which they purchased the automobile and World-Wide Volkswagen Corporation (a regional distributor for Volkswagen of America, Inc.). Both the retail dealer and the distributor appeared specially and objected to the jurisdiction of the Oklahoma court on Fourteenth Amendment due process grounds.

The distributor was incorporated in the state of New York, where it maintained its business office. It distributed vehicles, parts, and accessories under contract with Volkswagen of America to retail dealers in New York, New Jersey, and Connecticut. The retail dealer was incorporated and had its place of business in New York. The only relationship between those two corporations and Volkswagen of America was contractual. The record showed no evidence that either the distributor or the retailer did any business in Oklahoma, sold any products in that state, had an agent for service of process there, or engaged in advertisements calculated to reach Oklahoma.

The Supreme Court of Oklahoma held the Oklahoma trial court had jurisdiction over the distributor and the retail dealer on the ground that personal jurisdiction over those defendants was authorized by a portion of Oklahoma’s long-arm statute. This statute is quite similar to subsection (d) of the Louisiana statute. The Oklahoma version reads as follows:

“A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person’s . . causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state . . . ”

The United States Supreme Court reversed, holding that jurisdiction under the Oklahoma long-arm statute would constitute a violation of due process. The court stated a forum state may assert personal jurisdiction over a corporation which delivers its products into the stream of commerce with the expectation they will be purchased by consumers in the forum state. However, a forum state may not assert jurisdiction merely because it was foreseeable to the seller that its product would be taken by the purchaser to another state and cause injury there.

A corollary to this decision is that a forum state does not gain jurisdiction over a corporation which manufactures a defective product delivered to a state other than the forum state and the injured plaintiff travels to the non-forum state and sustains injury by use of the product there. A party cannot be made defendant in Louisiana merely because it is foreseeable that his product might injure a Louisiana resident while the latter was using it in another state.

For the reasons assigned, the writ issued by us is made peremptory, the judgment complained of is reversed, the exception to the lack of personal jurisdiction over Solomon North America, Inc. is maintained, and plaintiffs’ suit against that defendant is dismissed. Plaintiffs are to pay all costs of Solomon North America, Inc. in both courts.

REVERSED.

      . LSA-R.S. 13:3201.

      . La.App., 221 So.2d 265.

      . We reject, as totally without merit, plaintiffs’ argument that medical treatment and pain in this state which resulted from the injury in suit, brings this matter within “Causing injury or damage” of subparagraph (d). It is clear those words refer to personal injury or property damage.

      . 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

      . 585 P.2d 351.

      . Okla.Stat., Title 12, § 1701.03(a)(4).


author: SMITH, Presiding Justice,

text:
    ALLIED FIDELITY INSURANCE COMPANY v. STATE of Mississippi.
    Nos. 51962-51964.
    Supreme Court of Mississippi.
    June 4, 1980.
    Keyes, Moss & Piazza, Ben J. Piazza, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen., by Robert E. Sanders, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, BROOM and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Allied Fidelity Insurance Company, a corporation engaged professionally in writing bail bonds, has appealed to this Court in cases numbered 5890, 5941 and 5942 in the Circuit Court of Simpson County. In each of the cases the court declined to set aside a final judgment of forfeiture of bail bonds written by Allied. The single assignment of error in each of the cases is that the trial court erred in overruling appellant’s motion to set aside these final judgments of forfeiture.

The cases have been consolidated for the purposes of appeal by order of this Court and will be so considered.

Allied had made bail for one Claude L. Sant, Sr., by entering into bail bonds conditioned for his appearance on September 12, 1977 to answer three charges of false pretenses before the Simpson County Circuit Court. The principal sum in the bonds in each of the circuit court cases, numbers 5890 and 5942 was $10,000 and in the amount of $5,000 in circuit court case number 5941.

Sant failed to appear as required by his bond on September 12, 1977 and preliminary orders were entered by the court in each case, taking a forfeiture on each of the bonds. At the next term of the circuit court Sant again defaulted in each case by failing to appear and a final judgment of forfeiture was entered by the court in each case on March 13, 1978. The court term ended and court finally adjourned in April, 1978. There was no appeal by Allied. On June 16,1978 Allied moved the court to set aside or vacate the final judgments of forfeiture or in the alternative to modify them so as to grant Allied an additional thirty days within which to produce Sant. On June 19,1978 the circuit court judge undertook to grant the motions allowing Allied an additional thirty days in each case within which to produce Sant. This order was “approved” as to “form and content” by the District Attorney.

On July 18, 1978, Allied made an oral motion to amend the order of June 19,1978 so as to grant Allied an additional thirty days in each case to produce and deliver Sant. The court entered another order granting Allied the requested additional thirty days. Sant was not produced within that time and Allied paid into the Simpson County Treasury the total amount of its obligations under the final judgments of forfeiture, that is, $25,000.

On April 10,1979 Sant was delivered into the custody of the Simpson County Sheriff. What part, if any, Allied played in the apprehension and delivery of Sant does not appear in the record.

Subsequently Allied moved the court to set aside the final judgments of forfeiture, citing Mississippi Code Annotated section 83-39-7 (1972).

A bail bondsman licensed under this chapter shall have a right to apply for and obtain from the proper court an extension of time delaying a final judgment of forfeiture if such bail bondsman can satisfactorily establish to the court wherein such forfeiture is pending that the defendant named in such bail bond is lawfully in custody outside of the State of Mississippi.

On June 10, 1979 the circuit court judge entered an order denying Allied’s motion in each of the three cases. It is from these orders that Allied has prosecuted the present appeal.

On appeal Allied contends that the judgments of final forfeiture entered on March 13, 1978 were effectively amended by the subsequent orders, entered after the adjournment of the term, granting additional time within which to produce Sant and that, therefore, it is entitled to a refund of the money paid, plus appropriate costs as provided by Mississippi Code Annotated section 83-39-7 (1972).

It is Allied’s position that the attempted amendment of the March 13, 1978 final judgments of forfeiture, after the adjournment of the term at which it was entered, was valid because the order was endorsed by the district attorney as “approved” as to “form and content.”

In reply, the State cites Corn v. State, 250 Miss. 725, 168 So.2d 304 (1964), in which this Court stated:

According to the overwhelming weight of authority in other jurisdictions, both state and Federal, the surety on an appeal bond is not entitled to be relieved of its obligation on such bond unless it can show that the performance of its undertaking has been rendered impossible or excusable (a) by an Act of God; (b) by an act of the obligee; or (c) by an act of law. State v. Pelley (1943), 222 N.C. 684, 24 S.E.2d 635.

It is pointed out that the Professional Bail Bond Act changed the common law to the extent that Mississippi Code Annotated section 83-39-7 (1972), cited by Allied, allows only “an extension of time delaying a final judgment of forfeiture if such bail bondsman can satisfactorily establish to the court wherein such forfeiture is pending that the defendant named in such bail bond is lawfully in custody outside of the State of Mississippi.” (Emphasis added). No such basis for the reported extensions appears in the record and therefore Mississippi Code Annotated section 83-39-7 (1972) did not apply. Moreover, the forfeiture was not “pending”, and could not be “delayed” as it had been taken and reduced to final judgment.

As the circuit court judge pointed out in denying Allied’s motion to refund its money, the court had entered a final judgment of forfeiture from which no appeal was taken, citing McGowan’s work, “Power Of The Law Court Over Its Judgments”, 30 Mississippi Law Journal 428 (1959), in which it is stated: “A court has no power to correct, amend, open or vacate a judgment after the expiration of the term.” The exceptions to the rule noted by Judge McGowan were these:

(1) [T]he judgment is absolutely void for fraud on the jurisdiction of the court; (2) the rendition of said judgment was without and beyond the powers of the court to render; or, (3) the judgment was entered without process or notice served upon the defendant as required by due process of law.

In support of these rulings by the circuit court judge the State cites Alabama and Vicksburg Railway Company v. Bolding, 69 Miss. 255, 13 So. 844 (1891) and McIntosh v. Munson Road Machinery Company, 167 Miss. 546, 145 So. 731 (1933).

Allied counters citing cases in which this Court has held that a judgment may be amended upon mutual consent of the parties. The cases cited dealt with agreements made to allow the court to make findings which it had power to make at the time of the entry of the final decision sought to be so amended.

No statute or case has been cited indicating that a district attorney has the power or authority to agree on behalf of the State of Mississippi to a refund of money paid in satisfaction of a final judgment which has been recovered by the State and from which no appeal has been taken.

We find that the attempted extensions of time, after entry of the final judgments of forfeiture and the payment in discharge of the same by Allied of the full amount thereof after the adjournment of the term, were invalid. The action of the trial judge in denying Allied’s motions for the refund of its money was correct and the judgments appealed from are affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Mary Loyce MORGAN v. FOREST PRODUCTS TRANSPORT, INC. and B. J. McKenzie.
    No. 51848.
    Supreme Court of Mississippi.
    June 4, 1980.
    ' Guy, Dowdy & Whittington, William S. Guy, McComb, for appellant.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, for appellees.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    LIONBERGER ENTERPRISES, INC. v. LOMMA ENTERPRISES, INC.
    No. 51983.
    Supreme Court of Mississippi.
    June 4, 1980.
    Hawkins & Henry, W. Eugene Henry, Biloxi, for appellant.
    Blessey & Cavanaugh, Gerald Blessey, Robert Hessell, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Delores C. LOWREY v. M. MORRIS.
    No. 51815.
    Supreme Court of Mississippi.
    June 4, 1980.
    Morris & Pritchard, Thomas A. Pritchard, Biloxi, for appellant.
    Charles H. Reid, Hattiesburg, for appel-lee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before SMITH, P. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    George O’BRIEN v. STATE of Mississippi.
    No. 51944.
    Supreme Court of Mississippi.
    June 4, 1980.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before PATTERSON, C. J., and SUGG and COFER, JJ.

AFFIRMED.