text:
    Sam COLE, Jr., Plaintiff-Appellee, v. SEARS, ROEBUCK AND CO., Defendant-Appellant.
    No. 7819.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Refused Dec. 5, 1980.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-.es, for defendant-appellant.

      Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

In this proceeding the plaintiff seeks judgment against his former employer, Sears, Roebuck and Co., pursuant to the provisions of La.R.S. 23:1333, accelerating all compensation payments due him and yet unpaid under a judgment dated February 23, 1976.

There is no dispute with regard to the attendant facts which we will briefly summarize.

By judgment of the 10th Judicial District Court for the Parish of Natchitoches dated February 23, 1976, plaintiff was declared totally disabled as a result of a work connected accident and thus entitled to compensation benefits from his employer, Sears, at the rate of $65.00 per week beginning July 23, 1975, not to exceed the statutory maximum of five hundred (500) weeks. On appeal this court amended the judgment, so as to delete therefrom the award of penalties and attorney’s fees, but in all other respects the judgment was affirmed. Cole v. Sears, Roebuck & Co., 337 So.2d 900 (La.App.1976).

Upon finality of our judgment Sears began to make the compensation payments due plaintiff under the judgment, which by agreement of the parties were to be made every four (4) weeks. See La.R.S. 23:1201. Presumably, prior to June of 1977 the compensation payments were made and received promptly on or before the end of each four week period. However, beginning in June of 1977 Sears developed a pattern of being late with plaintiff’s compensation payments, the consistency of which circumstance prompted the filing of this suit on September 24,1979. The record reflects that during the period beginning June 26, 1977 and ending September 24, 1979, Sears allowed intervals of five weeks between compensation payments to occur on eight different occasions. Further, during this same time period, on five separate occasions, compensation payments were delayed six weeks; and, at three different times, during this time span, compensation payments were delayed as long as eight weeks. Sears consistent tardiness in the payment of the compensation due plaintiff prompted repeated requests by his counsel requesting that the compensation checks due him be mailed promptly each month as agreed. As stated by the trial court:

“The record reflects repeated letters by counsel to employer and its counsel requesting payment that was delayed by employer.
These letters are as follows:
1. Counsel’s letter to Employer dated August 10, 1977;
2. Counsel’s letter to Employer’s counsel, dated May 17, 1978;
3. Counsel’s letter to Employer’s counsel, dated July 26, 1978;
4. Counsel’s letter to Employer’s counsel, dated October 4, 1978;
5. Counsel’s letter to Employer’s counsel, dated November 30, 1978;
6. Counsel’s letter to Employer’s counsel, dated July 27, 1979.”

Finally, this suit was filed, as aforestated, on September 24, 1979, at which time the weekly compensation payments were in arrears since August 5, 1979, a period in excess of seven weeks. Following institution of suit and on October 2,1979, Sears mailed a check to plaintiff covering the compensation payments due for the period from August 6, 1979 through September 30, 1979, being the amount due for a total of eight weeks. In his suit plaintiff prayed for judgment accelerating all compensation not yet payable under the judgment of February 23, 1976, pursuant to the provisions of Section 1333, and attorney’s fees and penalties under the provisions of Section 1201.2. In its answer Sears admitted rendition of the judgment of February 1976 but denied that plaintiff was entitled to a judgment under Section 1333. In addition Sears, in its answer, made the following allegation:

“SECOND DEFENSE”
“As mover, respondent shows that the judgment herein was rendered on February 23,1976; that under the provisions of La.R.S. 23:1123 and La.R.S. 23:1331, a rule should issue herein ordering plaintiff, SAM COLE, JR., through his attorney, to appear and show cause why petitioner should not be required to submit to a medical practitioner appointed by this Honorable Court.”

The order to show cause annexed to defendant’s answer was originally fixed for hearing on October 24, 1979, however, on said date the trial court, on its own motion, rescinded such order reserving to Sears the right to re-submit same for consideration if the trial court determined that Sears had a valid and reasonable defense to plaintiff’s demand for acceleration of the payments not yet made under the original judgment.

The trial court rendered judgment in favor of plaintiff, making due and exigible, all sums not yet payable under the February 1976 judgment, but rejected his demand for penalties and attorney’s fees. Sears has appealed from this judgment. Plaintiff-appellee has answered the appeal requesting amendment of the trial court judgment insofar as it denied his request for penalties and attorney’s fees.

The issues on appeal are: (1) Did the trial court err in rendering judgment accelerating all remaining weekly indemnity due plaintiff under the February 1976 judgment? (2) Did the trial court err in refusing to permit Sears to have plaintiff examined pursuant to the provisions of La. R.S. 23:1331? (3) Did the trial court err in granting plaintiff a judgment pursuant to La.R.S. 23:1333, without statutory discount? (4) Did the trial court err in refusing to award plaintiff-appellee penalties and attorney’s fees?

IS PLAINTIFF ENTITLED TO A JUDGMENT UNDER THE PROVISIONS OF R.S. 23:1333?

We believe the recent decision of our Supreme Court in Lytell v. Strickland Transportation Company, Inc., 373 So.2d 138 (La.1979) to be dispositive of this issue. In Lytell, supra, the court held that after a judgment awarding compensation the penalty provisions of R.S. 23:1333 may be invoked against the employer who fails to pay compensation pursuant to such judgment for six successive weeks, “whether or not the award is based on disability (subject to reopening) or upon a non-disabling specific injury (with a scheduled fixed-number of weeks)”. In the course of its opinion in Lytell, the court stated:

“The circumstance that the judgment might be subject to modification under Section 1331 (i. e., if the disability lessens) is not, under the statutory scheme, relevant to the availability of the penalty provided by the succeeding Section 1333. The latter section complements the statutory scheme of the judicial administration and enforcements of judgments awarding weekly compensation to an injured employee; it provides a penalty against the recalcitrant employer for non-payment of the executory judgment against him awarding weekly compensation to an employee — the employer who, despite definitive judicial determination of his liability, nevertheless still fails to pay weekly com pensation due the work-injured employee.”
Once again we note that no contention was made by the defendant that the plaintiff is no longer disabled or that the employer could meet its heavy burden of proving that the plaintiffs indefinite total disability at the time of the trial will terminate at some determinable date in the future. See La.R.S. 23:1331; Belsome v. Southern Stevedores. Inc.. 239 La. 413, 118 So.2d 458 (1960); Malone, Louisiana Workmen’s Compensation Law, Section 281 (1951). In the absence of such showing at the time the penalty is sought to be invoked, the mandatory penalty provided by the statute is applicable for the ‘whole amount of the judgment,’ La.R.S. 23:1331, not for a lesser period.”

Able counsel for appellant seeks to distinguish Lytell from the instant case. He argues that, unlike the instant case, in Ly-tell the employer did not contest the employee’s continued disability after the rule to make compensation executory was filed nor was it shown in Lytell, that the employer ever made any compensation payments to the injured employee following rendition of the compensation judgment. Further, appellant’s counsel argues that in Lytell there was no agreement to make compensation payable every four weeks and it was clearly established that the employer failed to make payments despite repeated telephonic and written demands by the plaintiff. We do not agree that the factual circumstances of this case are at sufficient variance with the facts of Lytell as to warrant a departure from the legal principles there enunciated.

We do not consider defendant’s request in its answer for a rule to show cause why plaintiff should not be ordered to submit to a medical examination under Section 1331, as alleging that plaintiff is no longer disabled or that Sears, as employer, could meet the heavy burden of proving that plaintiff’s total disability at the time of trial would terminate at some determinable date in the future. As we note more fully hereafter, we do not consider the allegations of defendant answer as stating a cause of action for issuance of a rule pursuant to the provisions of Section 1331. Further, the fact that compensation payments were made to plaintiff following rendition of the February 1976 judgment does not alter the fact that over a prolonged period of time on several occasions and in spite of repeated written demand, Sears failed to pay six successive installments of the compensation due plaintiff under the 1976 judgment. This is the factual circumstance which, upon being established by competent proof, triggers the relief afforded the employee under the statute.

We find no merit in appellant’s argument that the agreement of the parties that compensation be paid monthly rather than weekly, pursuant to Section 1201, somehow deprives plaintiff-appellee of the benefit of Section 1333. Under Section 1201 payments of compensation are paid as near as may be, at the times and places as wages were payable to the injured employee before the accident. Plaintiff was paid his wages weekly, therefore he was to be paid compensation weekly. He and his employer agreed, subsequent to rendition of the 1976 judgment, that the weekly compensation installments would be accumulated and paid monthly. We interpret the provision of Section 1333, i. e., “six successive installments” as referring to weekly installments, irrespective of whether an agreement has been made under Section 1201 allowing for a longer interval between payments. It would be preposterous to assume that where, as here, an employee agrees to receive payments monthly rather than weekly, the legislature intended that an employee would be afforded no relief under Section 1333 until after the passage of six months. Such interpretation would be clearly inconsistent with the avowed purpose of the act which is to protect workers injured or disabled through industrial accidents.

In sum we conclude that the decision of our Supreme Court in Lytell v. Strickland Transportation Co., Inc., supra, mandates affirmance of the judgment of the trial court making due and exigible all compensation installments not yet payable under the judgment of February 1976.

In passing we observe that here, as in Lytell, although the award was based on disability (subject to reopening), the compensation awarded was during the period of disability, not beyond 500 weeks. The amount which is due and exigible under Section 1333 is thus easily ascertainable. La.R.S. 23:1221 was amended by Act 583 of 1975, effective September 1, 1975, and now provides that employees totally and permanently disabled are entitled to the payment of compensation during the period of such disability without specifying a maximum period during which compensation is payable. The Supreme Court in its opinion in Lytell expressed no opinion regarding the effect of this amendment on the application of Section 1333 to judgments for permanent disability from work injuries occurring after September 1, 1975, presumably because that issue was- not before the court. For the same reason we express no opinion concerning the effect of the amendment of Section 1221 on the future application of Section 1333.

DID THE TRIAL COURT ERR IN REFUSING TO PERMIT SEARS TO HAVE PLAINTIFF EXAMINED PURSUANT TO THE PROVISIONS OF LA.R.S. 23:1331?

Section 1331 provides for review of a judgment of compensation upon application of either party for a modification, at any time six months after rendition of judgment, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. If either party alleges sufficient grounds for review of a judgment the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations apply.

In the instant case, following institution of suit by plaintiff, the defendant filed answer and simply asked that plaintiff be required to submit to a medical examination because judgment was rendered on February 23, 1976. We do not consider defendant’s allegations in support of their request to allege grounds sufficient to provoke a review of the judgment under Section 1331 and in connection therewith to cause plaintiff to be examined pursuant to Sections 1121 et seq. Defendant did not allege that plaintiff’s incapacity had ceased or diminished nor that the judgment was obtained through error, fraud, or misrepresentation. These are the only grounds specified by Section 1331 as warranting a review of a judgment of compensation. Under the circumstances we determine that the trial court correctly refused to order plaintiff examined pursuant to the provisions of Section 1331 and Sections 1121 et seq. Cf. Avoylles Wholesale Grocery Co., Limited, et al. v. Elmore, 31 So.2d 434 (La.App. 2nd Cir. 1947).

DID THE TRIAL COURT ERR IN GRANTING PLAINTIFF JUDGMENT WITHOUT STATUTORY DISCOUNT?

Presumably appellant does not seriously contend that a judgment rendered pursuant to Section 1333 is subject to statutory discount because, although specified as an error, this issue is not addressed in brief. Suffice it to say that Section 1333 makes no provision for discount of the amount found due and exigible under a judgment accelerating the payment of all installments yet unpaid under a compensation judgment. La.R.S. 23:1274 which provides for discount of amounts payable as compensation commuted to a lump sum settlement has no application to a suit brought under the provisions of Section 1333. Thus we conclude that the trial judge was correct in granting judgment to plaintiff without statutory discount.

IS PLAINTIFF-APPELLEE ENTITLED TO PENALTIES AND ATTORNEY’S FEES UNDER LA.R.S. 23:1201.2?

We do not find it necessary to decide whether in a suit or rule brought pursuant to the provisions of Section 1333, the successful plaintiff is entitled in addition to penalties and attorney’s fees under Section 1201.2. The latter section, which may be invoked whether or not suit has been filed or judgment obtained provides a penalty only as to payments overdue after sixty days notice. In the instant case on the date suit was filed, i. e., September 24,1979, only fifty (50) days had elapsed since the last payment of compensation and by the Fifty-eighth (58th) day compensation was brought current. Under such circumstances Section 1201.2 is inapplicable.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . La.R.S. 23:1333 provides:
      “If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

      . La.R.S. 23:1221 was amended by Act 583 of 1975, effective September 1, 1975 and now provides in pertinent part as follows:
      “(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.” (Emphasis ours)

      . Under La.R.S. 23:1201 “a longer interval, not to exceed one month, may be substituted by agreement without the approval of the court, but a longer interval than one month must be approved by the court.”

      . The court in Lytell, supra, appears to indicate that the provisions of R.S. 23:1201.2 provide an additional remedy available against a recalcitrant employer, but unlike Section 1333, the penalty applies only as to payments overdue after sixty days following demand, not to future payments.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Jean Starkey, formerly SANDIFER, Plaintiff-Appellant, v. Hansford L. SANDIFER, Defendant-Appellee.
    No. 7822.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Guerriero & Anzalone, Rick C. Anzalone, Monroe, for plaintiff-appellant.
    Kathy J. Johnson, Jena, for defendant appellee.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   GUIDRY, Judge.

This lawsuit involves a Texas divorce decree obtained by the plaintiff, Jean Starkey (formerly Sandifer) against the defendant, Hansford Sandifer, and more particularly the provisions of that decree which relate to the disposition of certain immovable property located in Louisiana.

Plaintiff, Jean Starkey, sued the defendant for divorce in the State of Texas and obtained a judgment of divorce from the 260th Judicial District Court of Orange County, Texas, on February 19, 1979. Although properly cited and served, the defendant did not appear nor was he represented by counsel at the hearing. The Texas court, after an examination of the pleadings, the evidence, and after hearing the argument of plaintiff’s counsel, determined that it had jurisdiction over the parties and the subject matter of the cause. The court ruled that the material allegations in the plaintiff’s pleadings were true and rendered a judgment of divorce including provisions for the distribution of the community property of the parties in the manner prayed for by piaintiff.

The Texas decree provided that the estate of the parties be divided in the following manner:

“Petitioner is awarded the foilowing as Petitioner’s sole and separate property, and Respondent is hereby divested of all right, title, and interest in and to such property: All of the community property of the parties which is presently in her possession and all of her separate property in her possession.
Respondent is awarded the following as Respondent’s sole and separate property, and Petitioner is hereby divested of all right, title and interest in and to such property: All of the community property of the parties which is presently in his possession and all of his separate property which is currently in his possession.”

It is not disputed that at the time of divorce defendant was in physical possession of the Louisiana property. After the remarriage of the plaintiff and approximately seven months after the Texas court rendered its decree, plaintiff filed a petition in the 28th Judicial District Court of La-Salle Parish praying for a judgment modifying the Texas decree to provide that the plaintiff is co-owner in indivisión with the defendant of certain immovable property located in LaSalle Parish. Further, plaintiff prayed that the Texas judgment of divorce, once modified, be recognized by the Louisiana court.

In response to the plaintiff’s petition, the defendant filed an answer together with peremptory exceptions of no cause or no right of action and res judicata. The trial court, with written reasons, sustained the exceptions, and dismissed plaintiff’s suit. Plaintiff has appealed.

The issue to be determined is whether or not the Texas decree is entitled to full faith and credit in Louisiana under Article 4 Section 1 of the United States Constitution such that it is now res judicata insofar as it decrees a division of the community of ac-quets and gains which existed between the parties irrespective of the situs of the property involved.

Appellant urges that the Texas court which rendered the decree of divorce had no jurisdiction to determine the disposition of immovable property located in Louisiana. Citing dicta from Butler v. Bolinger, 16 La.App. 397, 133 So. 778 (2nd Cir. 1931), as authority, appellant contends that the Texas court had jurisdiction only to the extent of adjudicating the personal status of the parties. Further, appellant argues that foreign judgments which have an extraterritorial effect upon immovable property in Louisiana are not entitled to full faith and credit under Article 4 Section 1 of the United States Constitution.

In Butler, supra, the parties, married in Bossier Parish, acquired a forty (40) acre tract of land in Louisiana; and then moved to California. Later the parties were divorced via an interlocutory decree of divorce rendered by a California court. The court in its decree ordered the distribution of certain community property located in California. Unlike the case at bar, the California decree was silent as to the disposition of the property located in Louisiana. The dispute arose following the return of one of the parties (Mrs. Butler) to Louisiana at which time she sold her one-half (V2) interest in the property to M. R. Bolinger with the deed properly recorded in Bossier Parish. Subsequently, Mr. Bolinger instituted an action to partition the forty acre tract by licitation and secured a judgment by default ordering a partition by licitation. Butler then instituted suit to enjoin the proposed partition sale and to have the partition judgment declared a nullity alleging that the California decree did not dissolve the community between he and Mrs. Butler and therefore, she had no right to sell her interest in the property. Both the trial court and the appellate court held that Mrs. Butler could legally sell her interest in the immovable property located in Louisiana. The court determined that the legal effect of the California interlocutory decree was analogous to Louisiana’s separation a mensa et thoro. Thus, the court stated the decree effectively dissolved the community existing between the parties and made them co-owners in indivisión of the property at issue. We again note that the California decree did not purport to describe or divide any property situated in Louisiana.

In dicta, the Butler court commented on the jurisdictional power of foreign forums to render judgments affecting immovable property in our state. The court in Butler concluded that under the full, faith and credit clause of the U.S. Constitution, judgments of other states must be given the same effect as are given them in the state where rendered, but only so far as the personal status of the parties is concerned. In the course of its opinion the court stated:

“The validity of a judgment of another state where it operates on property within that state will not be inquired into by the courts of this state, but its extraterritorial effect on rights to immovables in this state will not be tolerated.”

In conflict with the dicta in Butler is a more recent case decided by Judge (now Justice) Blanche entitled Swain v. Swain, 339 So.2d 453 (La.App. 1st Cir. 1976). In that case, the plaintiff filed a petition for judgment declaring a Florida divorce decree a nullity insofar as it affected property located in Louisiana. The court noted that it was powerless to deny the Florida judgment full faith and credit as mandated by Article 4 Section 1 of the U.S. Constitution unless the Florida court lacked jurisdiction over the parties or the subject matter involved in the controversy. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1941); Crichton v. Succession of Crichton, 232 So.2d 109 (La.App. 2nd Cir. 1970), writs refused, 256 La. 274, 236 So.2d 39 (1970), U.S. certiorari denied, 400 U.S. 919, 91 S.Ct. 172, 27 L.Ed.2d 159, U.S. rehearing denied, 400 U.S. 1002, 91 S.Ct. 449, 27 L.Ed.2d 453 (1971). Judge (now Justice) Blanche stated:

“On the facts of the record before us, the Florida court obviously had jurisdiction over both the parties and the subject matter, that is, the marriage that existed between the plaintiff and the defendant and the legal effects that flowed therefrom.”

The seeming conflict in the Butler and Swain cases appears grounded in the characterization of the subject matter by the reviewing courts. Our review and study of the jurisprudence on the specific issue presented leads us to the conclusion that a foreign judgment of separation or divorce which incorporates a division of community property is final and res judicata in all aspects and entitled to full faith and credit unless it be established that the court rendering such judgment was without jurisdiction over status or unless a collateral attack against the judgment could be entertained in the rendering state. We are prompted to this conclusion by the cases Swain v. Swain, supra, Sheard v. Green, 52 So.2d 714 (1951), Liebendorfer v. Gayle, 217 So.2d 37 (La.App. 3rd Cir. 1968), writ denied, 219 So.2d 901 (La. 1969), certiorari denied, 396 U.S. 863, 90 S.Ct. 137, 24 L.Ed.2d 116, and Gay v. Gay, 203 So.2d 379 (La.App. 3rd Cir. 1967), all of which will be discussed herein.

In this case, appellant established her domicile in Texas and subsequently filed for divorce in that state. The Texas court, noting proper service and citation on the defendant, determined it had jurisdiction over the parties and the subject matter involved in the controversy. The defendant neither personally appeared nor was represented by counsel in the Texas proceedings. Appellant’s petition contained a request for the distribution of the community property existing between the parties. Presumably, the manner of the division of such property was, in the plaintiff’s opinion, fair and equitable. The defendant, having notice of the plaintiff’s proposed property settlement, acquiesced therein by virtue of his decision not to contest the suit. The resulting agreement regarding the disposition of the community 'property was approved by the forum court and incorporated in the judgment of that court.

The facts of this case are similar to those present in Sheard v. Green, 219 La. 199, 52 So.2d 714 (1951). In Sheard the plaintiff moved to Arkansas and established her domicile there for the purpose of obtaining a divorce. Prior to the granting of the divorce, the plaintiff and defendant entered into a property settlement agreement providing for limited alimony and the distribution of certain community property. The plaintiff, after obtaining the Arkansas decree, instituted suit in Louisiana to have that judgment set aside on the basis of fraud. The Louisiana Supreme Court noted in its opinion that under Louisiana law a property settlement agreement entered into by the parties was absolutely null and void if executed prior to judicial separation or divorce unless it was incorporated into the judgment of divorce itself. The court in its opinion declared that:

“An attack on the contract (community property settlement agreement) in this case under Louisiana law is an attack on the judgment of divorce itself and the only question that this court can consider with respect to a divorce decree of a sister state is the jurisdictional requirement of domicile. Navarrette v. Laughlin, 209 La. 417, 423, 24 So.2d 672 and cases cited therein.”

The permissible extent of a collateral attack on a foreign judgment was expanded in Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), followed by this court in Gay v. Gay, 203 So.2d 379 (La.App. 3rd Cir. 1967) and Liebendorfer v. Gayle, 217 So.2d 37 (La.App. 3rd Cir. 1968), writ denied, 218 So.2d 901 (La.1969), certiorari denied, 396 U.S. 863, 90 S.Ct. 137, 24 L.Ed.2d 116. In Liebendorfer, our court noted that the law as stated in Sheard, supra, had changed. The court in its opinion quoted the language in Gay v. Gay, 203 So.2d 379:

“A collateral attack may be entertained here (in Louisiana) if the rendering state would permit such an attack.”

In accordance with Louisiana Code of Civil Procedure article 1391, the trial judge in the instant case took judicial notice of the laws of Texas and concluded that the judgment rendered by the Texas court was unassailable in that forum. Texas concepts of res judicata provide that once a litigant in a divorce action brings into issue the community property rights of the parties, the judgment dividing such property operates as a bar to subsequent reconsideration of that issue absent fraud or misrepresentation concerning the extent of the community holdings. Ladd v. Ladd, 402 S.W.2d 940 (Tex.Civ.App.1966). Further, the Fourth Circuit Court of Appeals stated in Didier v. Didier, 230 So.2d 436 (La.App. 1st Cir. 1969), writs refused (1970), that burden of providing that the original judgment of divorce may be collaterally attacked rests with the person seeking to deny it full faith and credit. In the case presently before this court, the plaintiff has alleged no facts that would indicate she would be entitled to attack the Texas judgment in the Texas court. Since no timely appeal was filed in Texas the judgment of divorce has become final. As the judgment cannot be collaterally attacked in Texas, we must conclude that Article 4 Section 1 of the United States Constitution and Louisiana law preclude the plaintiff from launching a collateral attack on the Texas decree in the courts of our state. Therefore, plaintiff’s demand that she be recognized as a co-owner in indivisión of the immovable property located in LaSalle Parish must be denied.

Plaintiff contends that the trial court incorrectly interpreted the Texas decree so as to deprive her of any interest in the property in LaSalle Parish. We must disagree. The language of the Texas judgment must be construed in regard to its most common usage. Thus, the term “possession” as used in the decree refers to that property in the corporeal possession of the parties absent specific language to indicate otherwise. The record before us reveals that the plaintiff was fully aware that the defendant was in corporeal possession of the property at issue at the time she petitioned the Texas court for a decree of divorce and a division of the community property. Further, it cannot be denied that the Texas court granted the plaintiff exactly that relief which she requested. As previously noted, the Texas court approved the plaintiff’s proposed distribution of community property and incorporated it into the court’s decree. If the plaintiff believed the language employed in her prayer for relief was ambiguous, she was certainly free to re-word or re-structure her prayer so as to clearly state her desired relief.

Citing Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3rd Cir. 1976), appellee urges that the plaintiff should be judicially estopped from attacking the Texas judgment since she specifically requested a property division based on possession. In Valvoline, our court ruled that a party to a property settlement agreement was estopped from denying its legal efficacy after it was established that the party had judicially confessed the agreements validity by virtue of the allegations contained in the party’s answer filed in a foreign forum.

A similar theory was applied in Swain v. Swain, supra, wherein the court commented as follows:

“Presumably the Florida court applied Louisiana law when it partitioned the property; and if it did not, it seems to us that the plaintiff should have complained to the Florida court before its judgment became final. Now plaintiff, not being satisfied with that judgment wants to try her luck in our courts with the hope that on her second time around another partition will be more favorable.”

In the instant case, it also seems to us, that the proper time for the plaintiff to state her objections to the decision of the Texas trial court was prior to that judgment becoming final. The plaintiff had the opportunity to either request that the trial court reconsider its decision or file an appeal with the proper Texas appellate court. Failing to exercise those remedies available to her in Texas, the plaintiff cannot be heard to complain in the courts of our state about the provisions of a foreign judgment which the plaintiff, herself affirmatively sought.

Also noteworthy is the fact that the plaintiff does not seek to invalidate the Texas decree. The facts show that the plaintiff has relied on the decree’s validity by virtue of her remarriage. The plaintiff seeks only to modify the judgment so as to provide her with an advantage she would not have otherwise. The defendant, too, has relied upon the provisions of the Texas decree. Presumably, the defendant after service of the plaintiff’s petition, examined it and decided that since he had no objections to the relief requested by the plaintiff, he would not contest the suit. Also, after service of the judgment of the Texas court the defendant, relying on the provisions in that decree, elected not to exercise his right to appeal that decision. An obvious inequity would result if the defendant were placed in a position whereby the plaintiff, unsatisfied with the Texas decree, could now have those portions of the judgment she finds distasteful modified by the courts of our state. Although the appellee did not specifically plead the affirmative defense of estoppel, we opine that the elements for judicial estoppel are present. As stated in Rouse v. Rouse, 219 La. 1065, 55 So.2d 246, 250 (La. 1951):

“The principle upon which cases of this character should be decided is that no one can accept the benefits of a judgment and then be heard to assert its nuliity and invalidity ...”

Finally, plaintiff’s counsel attacks the validity of the Texas judgment on the ground that the defendant neither appeared nor was represented by counsel in that proceeding. Clearly such an argument is within the domain of the defendant to assert, not the plaintiff. After all, the plaintiff was present and represented by counsel at the Texas proceeding, therefore her rights were protected. The defendant had the choice of whether or not he would appear at the proceeding in Texas or retain counsel to represent him. He chose not to affirmatively protect himself from any potential prejudice in the foreign forum. The choice is surely the defendant’s and the plaintiff may not assert that the judgment is invalid on that ground.

For the above and foregoing reasons, the judgment of the trial court sustaining the defendant’s exception of res judicata is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Charles D. RICHEY, Plaintiff-Appellant, v. CAGLE CHEVROLET, INC., and General Motors Corporation, Defendants-Appellees.
    No. 7832.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Scofield, Bergstedt & Gerard, Richard Gerard and J. Michael Veron, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Thomas L. Raggio, Lake Charles, for defendants-appellees.
    Before GUIDRY, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

In this redhibition action the plaintiff, Charles D. Richey, has appealed a judgment in favor of the defendant, General Motors Corporation. We affirm.

On November 14, 1975, Mr. Richey purchased a 1976 Chevrolet Blazer from Cagle Chevrolet, Inc., in Lake Charles, Louisiana. The motor vehicle had been manufactured by General Motors. In March of 1977 the plaintiff began to experience problems with its cooling system. He filed this redhibitory action on February 28, 1978, alleging that “casting sand” was left in the engine block at the time of manufacture which subsequently caused leaks at various points in the cooling system.

The trial judge dismissed the plaintiff’s suit against Cagle Chevrolet on an exception of prescription and the decision was not appealed. After trial on the merits, the trial judge ruled in favor of General Motors. The plaintiff filed a motion for new trial, which was' denied. From this judgment Mr. Richey has appealed.

The plaintiff asserts that the trial judge erred in concluding that he failed to prove by a preponderance of the evidence that the defects complained of existed before the sale.

Mr. Richey had no problems with the vehicle until March 29, 1977, more than sixteen months and about 33,000 miles of operation after the purchase. At that time he noticed a red rusty-looking fluid on the floor under the dashboard on the passenger side of the vehicle, which had leaked from the heater core assembly. Similar problems were experienced in November of that year, and in January, August, and November of 1978. The heater core, freeze plugs, water pump and hoses of the heating and cooling system were ultimately replaced.

The plaintiff contends that some casting sand used in the manufacture of the cooling system remained therein, which circulated through the system, pitting or corroding the water pump, radiator, tubes, heater core and soft plugs. While the plaintiff’s expert, Mr. Herman Sattler, supported this theory, he admitted that the corrosion he found in Mr. Richey’s vehicle could have been caused by rust that may have resulted either from leaving antifreeze in a vehicle for too long a period or from not using antifreeze. Mr. Richey admitted he changed the antifreeze only once in the sixteen month period between November 1975 and March 1977, but said that he added coolant frequently.

The defendant’s expert, Mr. Howard Davis, testified that any casting sand left in the motor would have settled to the bottom of the block. Further, the velocity of the flow of the coolant would not be sufficient to force the sand up through the top portions of the engine block and on through the cooling system. Mr. Davis further testified that when he took a sample of the coolant in Mr. Richey’s car in October, 1978, it contained no antifreeze. His opinion was that lack of proper coolant protection was the cause of the rust in the radiator system.

Another expert, Mr. Charles McMichael, analyzed the liquid from the cooling system. His analysis revealed no excessive acidity that could cause corrosion. His opinion was that if there was corrosion on the engine block it had to come from some other source than casting sand.

Further analyses by the plaintiff’s expert, Dr. B. E. Hankins, revealed sand in only one of six tests performed on samples taken from the plaintiff’s vehicle.

The plaintiff traveled extensively in the Blazer. At the time of the trial, January 2, 1980, it had been driven almost 80,000 miles.

The burden is on the plaintiff to establish a prima facie case. Failure to do so defeats his cause of action. Edelman Systems, Inc. v. Capitol GMC, Inc., 345 So.2d 99 (La.App. 1 Cir. 1977).

Although it is not necessary for the purchaser to prove the particular and underlying cause of the defect in a complicated piece of machinery, he must prove the defect existed prior to the sale to be successful in a redhibitory action. Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3 Cir. 1975); Harris v. Drexler Motor Co., Inc., 339 S.2d 1304 (La.App. 1 Cir. 1976).

The trial judge was not convinced that the plaintiff had sustained his burden of proof, stating in his oral reasons for judgment:

“From the evidence presented to the Court, the Court cannot conclude that the problems in the vehicle cooling system resulted from a manufacturing defect; and, in fact, from the evidence presented the Court cannot determine what caused the problems in the heating and cooling system of the automobile which caused the water that was circulated to have a high portion of suspended solids. For this reason, the Court does not feel that from the evidence and does not find from the evidence that the plaintiff has proven by a preponderance of the evidence that the problems in the vehicle resulted from a manufacturing defect.”

From our careful review of the record, we cannot say that the trial judge’s finding was clearly wrong. Under the circumstances we must affirm. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

For the foregoing reasons, the judgment of the district court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.


author: STOKER, Judge. FORET, Judge,

text:
    Tazie MANUEL, Plaintiff-Appellant, v. Rena PITRE, Defendant-Appellee.
    No. 7836.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Refused Dec. 5, 1980.

      Guillory, McGee & Mayeux, A. Frank McGee, Eunice, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for defendant-ap-pellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This suit arose out of a verbal agreement to sell immovable property located in St. Landry Parish. Plaintiff Tazie Manuel filed suit against defendant Rena Pitre for breach of the verbal agreement. Plaintiff sought specific performance of the agreement and in the alternative damages and a refund of monies paid. Judgment was rendered against plaintiff denying specific performance and damages but recognizing the claim for a refund of monies paid. Plaintiff Tazie Manuel appeals this judgment. We affirm.

The issue on appeal is: Whether this court should recognize a verbal sale of immovable property between the parties.

FACTS

The parties to this suit are sisters. They are the daughters of Horace Manuel who died on November 10, 1977. The house and 40 acres which are at the center of this dispute were part of the estate of Horace Manuel. Defendant received the 40 acres as a bequest from her father. A house, barns, and other improvements located on the 40 acres were not bequeathed to the defendant in full ownership. In November shortly after the death of Horace Manuel his four children met and agreed to sell their interests in the house and other improvements to defendant for $5,000. The three selling children were to each receive Vs of this sum. Although the record contains no proof of this sale, it was apparently accomplished. On the following day defendant agreed to sell the house and 40 acres to plaintiff. Plaintiff testified that the total price of the sale for the 40 acres, the house and other improvements was to be $50,000. No written agreement to buy and sell was ever entered into between plaintiff and defendant. Defendant stated in a deposition that an agreement to buy and sell had been made but that the sale price of the property was $75,000. At the time of the agreement in November, plaintiff gave defendant $5,000 (representing the amount defendant had paid for the house and other improvements on the previous day) and $700 as “forfeit money”. This “forfeit money” was to guarantee that plaintiff did not back out of the agreement to buy the property. On November 15, 1977, plaintiff gave defendant a money order for $3,000. Plaintiff testified that defendant accepted the money order with the knowledge that it was further payment on the property and that the defendant accepted it without indicating that she had changed her mind about the sale. Defendant testified that she did not want to accept the money order and attempted to persuade the plaintiff to take it back. The money order was deposited in a bank by defendant on December 5, 1977.

On January 31, 1978, the defendant informed the plaintiff that she was entitled to an additional sum of $1,667.00 representing the defendant’s share as heir of the profit from the sale of her interest in the house and other improvements. Plaintiff honored this contention and made payment of the amount. This payment to the defendant was made in the form of plaintiff s personal check for $862.00 and by allowing the plaintiff an $805.00 credit representing a rental payment made on the 40 acres. This rent check was made payable to the defendant but the parties agreed that the rent belonged to plaintiff because the defendant had sold the land to plaintiff.

On March 1, 1978, defendant obtained title to the 40 acres by act of delivery of legacy from the Succession of Horace Manuel. On March 7, 1978, plaintiff had an attorney prepare an act of cash sale for the 40 acres and attempted to deposit money with the attorney representing the balance owed the defendant. The attorney refused to hold this money for plaintiff. The cash sale reflected a consideration of $24,000. The act of sale was never signed by the defendant.

Following the drafting of the act of sale plaintiff testified that she visited defendant at the hospital for the purpose of obtaining defendant’s signature on the cash sale form and paying defendant the balance owed. Defendant testified that plaintiff came to the hospital but did not have “sale papers” although she did have money. Defendant testified that at this time she told plaintiff she was not going to sell.

On March 7, 1978, defendant sent plaintiff a $3,000 check with a note which said: “$75,000 is not sufficient”. Plaintiff returned this check to defendant and at trial testified that this was the first indication she had that defendant was unwilling to sell. On March 30, 1978, defendant again mailed plaintiff a check and a letter which said: “Like I told you $75,000 is not enough money”.

On April 18, 1978, plaintiff’s attorney sent defendant a letter requesting performance of the November agreement. Suit was filed May 8, 1978. At the time of trial on October 23, 1979, plaintiff was residing in the house on the 40 acres.

The trial court refused to order specific performance of the verbal agreement between the parties. It found that there had been no meeting of the minds of the parties as to price and therefore no sale. The court also found that it was unclear whether a separate sale of the house and improvements apart from the 40 acres was contemplated by the parties. Defendant was ordered to refund the $9,562 paid by the plaintiff pursuant to the agreement.

ALLEGED CONFESSION OF AGREEMENT TO SELL

In this appeal, and for the first time, plaintiff relies on an alleged confession of an agreement to sell made by the defendant in a deposition given by defendant. The pertinent portions of the deposition testimony given by defendant Rena Pitre are as follows:

“Q But in November you did agree to sell the property to your sister?
A Yes
Q What terms did you agree upon at that time, in November, with your sister, by terms I mean what price did you and your sister agree on?
BY THE WITNESS: (To her attorney, Mr. Lomenick)
Q Can I tell?
A Yes.
Continued by the witness :
A Seventy-Five Thousand ($75,000.00).
* as H! s}¡ * *
You-usually these [sic] type of situation, Mrs. Pitre, a lot of times people are conscious of the tax things, consequences, and this, that and the other. And so some times people will make a deal that, “okay, I’m gonna sell my property for so many dollars but I don’t want all of it to show on the sale because I — it’ll cost me so much money for taxes and this, that and the other,” is what you were trying to tell me? ,©
Yeah, well, on-her, she started that herself. So then I just said, well, okay, good.
So . . ¿O
But that was not gonna be talked about. >
Q I understand that. So basically, what happened was that you agreed to sell and she agreed to buy for $75,000.00 Dollars but it was agreed between the two of you that the $75,000.00 Dollars wasn’t going to be talked about, is that correct?
A Right.”

In plaintiff’s original suit filed May 8, 1978, she alleges an agreement was made for a sale at a price of $50,000. On September 27, 1978, plaintiff amended and supplemented her petition in certain respects but reiterated her allegations that the agreed sale price was $50,000.

LSA-C.C. art. 2275 provides as follows: “Art. 2275. Verbal sale of immovables. Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

Before this court plaintiff-appellant Ta-zie Manuel makes two contentions which are inconsistent and can hardly be considered as permissible alternative contentions. First, plaintiff-appellant contends the answers given by Rena Pitre in the sworn deposition prove there was an agreement to sell for $50,000. Second, appellant contends that if the “confession” does not prove an .agreement at a price of $50,000, the “confession” at least proves an agreement to sell for $75,000. On this point plaintiff suggests in her brief that, at most, a credibility problem was presented, and the trial court should have resolved the issue by deciding that there was an agreement for one price or the other.

These contentions are not correct. Had plaintiff-appellant alleged in her petition that an agreement for a sale at $75,000 had been confessed under oath by her sister, there might be some merit to the attempt to rely on the deposition testimony. Without passing on the question of whether a confession of the nature referred to in LSA-C.C. art. 2275 may be made in a deposition, we hold there was never an agreement as to price as a result of the alleged confession.

ELEMENTS OF AN AGREEMENT TO SELL

The three essential elements of a sale are the thing, the price and the consent. LSA-C.C. art. 2439. There must be a meeting of the minds of the parties as to the object to be sold and the price. The price must be certain and should be fixed and determined between the parties. LSA-C.C. art. 2464.

The record in the present case reflects that the parties did not have a meeting of the minds as to price. Plaintiff testified that she agreed to purchase the house, other improvements and 40 acres for $50,000. At Tr. 41, Vol. 2, plaintiff testified:

“Q All right, now, fifty thousand, was that supposed to —
A For the whole thing, all the property and the house and improvement (sic), everything that was on the property.”

The defendant in deposition stated that she agreed to sell the property for $75,000 and that she later informed plaintiff that $75,000 was not enough and refused to complete the sale for this reason.

The plaintiff and defendant failed to agree on a price. Without a certain price there can be no sale.

AFFIRMED.

FORET, J., concurs with reasons.

FORET, Judge,

concurring.

I concur in most of the views expressed in the majority opinion; however, I cannot agree with the last portion of the review which státes that “Without a certain price there can be no sale”. In my opinion, considering the recent Louisiana Supreme Court case of Benglis Sash & Door Company v. A. P. Leonards et al., 387 So.2d 1171 (La.1980), the herein quoted language of the majority in this case is not correct. However, I concur in the result reached by the majority.

      . This testimony also reflects that it is unclear whether plaintiff and defendant contemplated a separate sale of the house and other improvements apart from the 40 acres. Plaintiff did not pray for a separate sale of the house and other improvements. This point is one we do not reach inasmuch as we find there was no agreement as to the price.


author: LABORDE, Judge.

text:
    COLUMBIA GULF TRANSMISSION COMPANY, Plaintiff-Appellant, v. Paul R. ROSTEET and Eleanor Rosteet Hamilton, Defendants-Appellees.
    No. 7841.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Refused Nov. 26, 1980.
    Broadhurst, Brook, Miller & Reed, Oscar E. Reed, Jr., Lafayette, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, John F. DeRosier, Lake Charles, for defendants-appellees.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal from an expropriation proceeding filed by Columbia Gulf Transmission Company against Paul M. Rosteet and his sister Eleanor Rosteet Hamilton. The District Court awarded defendant Paul R. Rosteet $7,230.00 as compensation for the land expropriated, reasoning that the highest and best use of the property taken was for pipeline rights-of-way purposes. We amend and affirm. We hold that the best evidence of the property’s market value is the sale price of similar properties.

The salient facts are: Columbia sought a pipeline right-of-way over and across land belonging to appellee in Cameron Parish, Louisiana. Gulf Interstate, Columbia’s ancestor in title, had previously acquired a right-of-way grant from Paul M. Rosteet, father of appellee, and constructed a twelve-inch (12") pipeline on the property. The right-of-way was dated October 19, 1953 and stipulated for a term of twenty-five years, expiring on October 19, 1978.

The parties could not agree on the renewal of the grant, and Columbia filed an expropriation proceeding on January 22, 1979 seeking a permanent right-of-way across those portions of the Rosteet property where its pipeline was buried. Columbia sought to perpetuate the right acquired under the original right of way granted by appellee’s father. Paul R. Rosteet did not timely file his answer, and under the provisions of LSA-R.S. 19:7 waived all defenses to this suit. The only issue for the trial court’s determination was the claim for money as compensation for the property expropriated.

The Rosteet property is located 25-30 miles from Cameron, Louisiana and 13 miles from Creole, Louisiana. It consists of two (2) tracts, one containing approximately 160 acres and the other containing approximately 600 acres. Columbia’s pipeline traversed the property with a permanent right-of-way twenty (20) feet in width, amounting to 1.83 acres of appellee’s property.

In his reasons for judgment the trial judge refused to consider the data compiled by Robert Doyle, one of defendant’s experts, who provided information on the sale of comparable residential lots. Similarly, he refused to consider the data about comparable sales of large tracts of land provided by John Harold Lambert, plaintiff’s expert. Instead, he adopted the prices paid for rights of way provided by John Vice, defendant’s expert, and held that:

“. . . the only real comparable which we should seek in this situation is sales of right of ways for similar uses, and I must add under similar situations. I say that for this reason. We do not have here a landowner with land in an untouched, pristine state. In fact, it has a pipeline on it already. In dealing at arm’s length with the pipeline company the land owner here offers not just a distance between two points which must be traversed, but he offers a piece of land which has on it a length of pipe installed and functional, which connects the rest of the pipeline, and this cannot be ignored in determining the value of the taking.”

We disagree with the reasoning of the trial judge. The jurisprudence of this state is to the contrary. We recently addressed this issue in Louisiana Intrastate Gas Corp. v. Edwards, 343 So.2d 1166 (La.App. 3rd Cir. 1977), writ refused, 345 So.2d 904 (La. 1977).

The trial court erred in its determination that the highest and best use of the property taken was for pipeline rights-of-way purposes. The jurisprudence of this State is to the contrary. This Court had the identical question presented to it in Michigan-Wisconsin Pipeline Co. v. Fruge, 227 So.2d 606 (La.App. 3 Cir., 1969), writ refused, 255 La. 149, 229 So.2d 732 (1970). Coincidentally Stanley Tiger was an expert witness for the defendant, as he was in this case. He based his valuation of the property taken on comparable sales of similar servitudes to expropriating authorities. In that case the defendants cited Gulf States Utilities Co. v. Norman, La.App. 3 Cir., 183 So.2d 421, writs denied, 249 La. 118, 185 So.2d 529, as authority for the use of such compara-bles. Michigan - Wisconsin distinguished the Gulf States Utilities case, and we do the same. Ample comparable sales were available in the case at bar to show the fair market value of the property taken to be $1,000 per acre.
Counsel for defendants makes an innovative and ingenious argument that the highest and best use of the property involved is for pipeline rights-of-way purposes. As we did in Michigan-Wisconsin Pipeline Co. v. Fruge, supra, we reject that argument as being contrary to the jurisprudence of this State. Because of the foregoing, we need not indulge in the citation and quotation of various inapplicable formulae mentioned in prior jurisprudence, all of which attempt to spell out what is and what is not “just compensation” for property taken in expropriation proceedings in particular fact situations.

Having decided that the trial court erred in determining that the highest and best use of the property taken was for pipeline rights-of-way, we must award appropriate compensation to appellee. The uncontradicted testimony of John Harold Lambert, a qualified land appraiser, was to the effect that the land taken was high land generally suited for growing rice and soybeans, and general native pasture land for grazing. Lambert used the market data or comparison approach, in which recently sold property is compared to the property taken as to size, location, terrain features, highway frontage, et cetera in arriving at its highest and best use.

Lambert concluded that the value of the Rosteet property was $1,200 per acre. Since no temporary work space was required and since the only value sought was for the existing right-of-way, Lambert placed a remaining value to the landowner at $200, leaving a net value of the land taken at $1,000 per acre. Lambert’s final calculations, which we accept as reasonable and just, amount to $1,830 for the 1.83 acres taken. Since appellee owns a one-half interest in the Rosteet property, he is entitled to $915.

For the reasons assigned, the judgment appealed is amended to reduce the award to Paul R. Rosteet to $915. Except for the amendment, the judgment is affirmed. All costs of this appeal are assessed against defendant-appellee.

AFFIRMED, AS AMENDED.

      . Eleanor Rosteet Hamilton, reached an amicable agreement with Columbia on February 20, 1979. She granted a permanent right of way to Columbia Gulf for the purposes sought in its petition for expropriation.


text:
    Marion Ross FRIDAY, Plaintiff-Appellee, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. 8041.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Provosty, Sadler & deLaunay, David Spence, Alexandria, for defendant-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, CUTRER and SWIFT, JJ.
   GUIDRY, Judge.

MOTION TO REMAND

Plaintiff-appellee, Marion Ross Friday, moves to remand this suit to the trial court for the purpose of the trial court receiving evidence which plaintiff-appellee alleges will establish that subsequent to the granting of this appeal this matter was fully and finally settled by compromise agreement which is now res judicata. The motion is unopposed.

The plaintiff filed this suit against the defendant, Prudential Insurance Company of America, to recover medical expenses under a group insurance policy issued by Prudential. A default judgment was rendered and signed on December 28, 1979. A motion for new trial was denied and Prudential timely perfected this appeal.

On September 12, 1980, the plaintiff-ap-pellee filed this motion to remand contending the case had been compromised on May 28, 1980, some two months following the granting of this appeal. In the motion to remand mover alleges that on May 20,1980, counsel for the plaintiff was contacted by counsel for the defendant for the purpose of negotiating a compromise of the instant suit and another similar suit involving the same parties. Mover further alleges that an agreement of compromise was reached and counsel for the plaintiff forwarded a written offer of compromise in the amount of $2,179.97 to counsel for the defendant, David P. Spence. It is further alleged that on May 28, 1980, Spence sent counsel for the plaintiff a letter accepting the settlement offer. This letter allegedly reads in part as follows:

“Payment has been authorized and I expect receipt of their (Prudential’s) draft in the amount of $2,179.97 in due course. Accordingly, you may consider the case compromised. Upon receipt of the draft, I will immediately forward it to your office together with a Satisfaction of Judgment and Joint Motion of Dismissal.”

It is finally alleged that on June 20, 1980, counsel for the plaintiff was notified that Prudential refused to comply with the agreement of compromise. Counsel for plaintiff argues he has been harmed in the instant case in that he failed to preserve his right to oral argument and to file briefs because he believed the suit was compromised.

The authority of an appellate court to remand an action for proper consideration is conferred in part by LSA-C.C.P. Art. 2164 which states:

“The appellate court shall render any judgment which is just, legal and proper upon the record on appeal . . ..”

Under the judicial interpretations given to this article, this court is empowered to remand a case for the consideration of new evidence. Roark v. May, 367 So.2d 397 (La.App. 3rd Cir. 1978); Writ Denied, 368 So.2d 123 (La. 1979).

The above being considered we conclude that the ends of justice would be best served by setting aside the judgment appealed from and remanding the case to the trial court in order that the parties may be given an opportunity to introduce in evidence the alleged compromise agreement and any other proof which may be available to the parties relating to the validity of the alleged agreement and the effect which it may have on the rights and claims of the parties. After a hearing, the trial court is instructed to determine the effect which the alleged compromise agreement has had on the rights of the parties, and then judgment on the merits should be rendered consistent with that determination. We express no opinion as to the validity or effect of the alleged compromise agreement, or as to the merits of the case. We are remanding the case solely because we feel that under the circumstances presented the ends of justice would be best served by such a procedure. See Town of Eunice v. M&L Construction Company, 212 So.2d 125 (La.App. 3rd Cir. 1968).

For the above and foregoing reasons, the judgment appealed from is set aside and the case is remanded to the trial court for further proceedings consistent with the views herein expressed. The costs of this appeal are assessed to defendant-appellant.

REMANDED WITH INSTRUCTIONS.


author: CULPEPPER, Judge.

text:
    Ruby ROBERTS et al., Plaintiff and Appellant, v. A. J. STEVENS, Defendant and Appellee.
    No. 7637.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.

      Mark H. Kramar, Leesville, for plaintiff and appellant.
    F. Clay Tillman, Jr., Leesville, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiffs bring this action seeking a variety of rights and remedies involving a small cemetery known as the “Smith Cemetery”, in which they have relatives buried. Specifically, plaintiffs ask for: (1) A declaratory judgment recognizing the Smith Cemetery as a public cemetery and recognizing the right of the public to have access to the cemetery; (2) judicial determination of the boundaries of the cemetery; (3) injunctive relief restraining the defendant, A. J. Stevens, from interfering with plaintiffs’ use of and access to the cemetery; and (4) damages in the amount of $5,000 for emotional distress and mental anguish caused as a result of the defendant’s alterations to the cemetery. The trial court granted a declaratory judgment recognizing the Smith Cemetery as a public cemetery and ordered a survey of the area comprising the cemetery. Injunctive relief and damages for emotional distress and mental anguish were denied. From this judgment, plaintiffs appealed.

The Smith Cemetery is a small rectangular plot of land, approximately 30 feet by 46 feet in size, on a hill in a rural wooded area in Vernon Parish. For many years it served as the final resting place for several of plaintiffs’ ancestors. Although the exact origin of the cemetery is uncertain, several tombstones date back to the early part of this century. The last burial was in about 1929.

Throughout the years, upkeep and maintenance of the cemetery were provided by plaintiffs and other members of their families. This maintenance included keeping up an old wire fence until a chain link fence was built in about 1965, raking leaves, picking up fallen limbs and clearing out weeds and other growth.

The wooded area surrounding the cemetery was subdivided into residential lots in the early 1970s. In 1974, the large lot on which the cemetery is presently located was purchased by the defendant. He built a home and landscaped his property. In an effort to make the cemetery conform more aesthetically with the home and landscaping, defendant, at his own expense, improved the appearance of the cemetery, which at the time was in a state of disrepair. The chain link fence was replaced by a redwood board fence. The cemetery was cleared of grass and dead limbs. A concrete border was placed around the central area used for graves, and tar paper covered by sawdust and pine bark was used to prevent weeds and grass from growing over the graves. Also, concrete borders, enclosing spaces for flowers and shrubs, were placed along each side of the central grave area.

Stevens placed markers on those graves that were still identifiable. There is some dispute in the testimony as to whether there were any standing tombstones at the time the defendant initiated these changes. Defendant testified that the two remaining tombstones had deteriorated and fallen due to fire ant infestations and several hard freezes during the past few years.

Shortly after these changes were made, plaintiffs discovered them. Several of the plaintiffs testified that following these changes the area was no longer recognizable as a cemetery. They preferred their cemetery in its original state, despite whatever good intentions defendant may have had.

The trial court, following our decision in Vidrine v. Vidrine, 225 So.2d 691 (La.App. 3rd Cir. 1969) held that ownership of the land on which the cemetery is located is vested in the defendant. However, the court ordered the defendant to move the outer board fence which he had erected to conform with the findings of the surveyor. The judgment also provides:

“5. The defendant, A. J. Stevens, is recognized to be the owner of the land on which the Cemetery is located subject to the covenant that binds the owner in the following ways:
(1) He cannot remove or disturb any grave.
(2) Relatives and friends have unrestricted rights to visit and care for the graves.
(3) Property included in the cemetery cannot be used by the owner for any purpose inconsistent with cemetery purposes.
(4) The owner cannot reduce the size of the lands set apart as a cemetery.
“6. The defendant, A. J. Stevens, the owner retains ownership of the land and he may: make and enforce regulations as to where burial plots will be placed, charge for lots and this carries with it the power to prevent any further burials on the cemetery plot and to prevent any further enlargement of the cemetery.”

Jurisprudence has established that the reservation of a tract of land for use by the public as a cemetery and its continued use by the general public as a burial ground is legally sufficient to constitute dedication of the property for public use. Locke v. Lester, 78 So.2d 14 (La.App. 2d Cir. 1955); Humphreys v. Bennett Oil Corporation, 195 La. 531, 197 So. 222 (1940). When property has been informally dedicated, ownership of the land remains with the record owner, subject to an irrevocable dedication for public use. A. Yiannopoulos, Property, II La. Civ.L. Treatise (1980), Sec. 65 at 195. Here, the Smith Cemetery has been used by several families for over eighty years. Clearly, the cemetery has been informally dedicated for public use as a place for burials.

The exact nature of the rights acquired in the property by virtue of the dedication have not been clearly defined by jurisprudence. Earlier cases described this right as a “species of interests or form of title . . . not within the recognition of the Code.” See Choppin v. Dauphin, 48 La.Ann. 1217, 20 So. 681, (La.1896), and Humphreys v. Bennett Oil Corporation, supra. In Vidrine, the court declared that the dedication was “in the nature of an irrevocable covenant running with the land” and “a real right, not a servitude or usufruct, but an implied contractual relationship that binds the owner irrevocably.” Vidrine v. Vidrine, 225 So.2d 691 at 697. This right has also been described in civilian terms as a judicially created real right in the nature of a servitude.

Prior cases have recognized the right of the descendants and near relatives of those interred in such cemeteries to sue for damages for the profanation or desecration of the sacred grounds. Thomas v. Mobley, 118 So.2d 476 (La.App. 1st Cir. 1960); Humphreys v. Bennett Oil Corporation, supra. However, we agree with the trial court that in the present case the defendant’s acts did not amount to a desecration of the cemetery grounds. Although defendant may have substantially changed the appearance of the cemetery, the record clearly indicates that defendant took precautions not to disturb any of the graves and at all times respected the sanctity of the area.

The result in Thomas v. Mobley, supra, lends support to our conclusion here. There, the defendant, with similar intentions of improving the appearance of the cemetery located on his property, had the area cleared by a tractor. Prior to the clearing, the defendant mapped off the location of the graves and removed the headstones pending the clearing. The court held the mere act of using machinery to clear the cemetery did not constitute desecration, provided care was taken to preserve the area. In the present case, defendant took the utmost care not to disturb the area. On the contrary, he improved its appearance.

In his written reasons, the trial judge stated that the question of future burials was not at issue due to an earlier agreement between defendant and his vendor that there would be no new burials in the cemetery. Defendant, under cross-examination, made it clear that he is opposed to any future burials. Plaintiffs contend the prevention of future burials violates their rights of use and access to the cemetery. We agree. In Vidrine, this Court held that the owner may make and enforce regulations as to how burials shall be made so long as the regulations are consistent with the manner in which burials have been accomplished in the past. This, however, does not give the owner the power to prohibit future burials altogether. Since, as previously noted, the dedication is in the nature of a servitude and created real rights on the land, any personal agreement between the purchaser and the seller would have no effect on the plaintiffs. The ruling of the trial court insofar as it prohibits future burials must be modified accordingly-

Plaintiffs next contend the placement of the concrete borders unlawfully reduced the area available for burial spaces. The plat by the court-appointed surveyor shows the entire cemetery is rectangular in shape and approximately 30 feet wide by 45 feet in depth. It fronts on a public street, Huckleberry Drive. As stated above, defendant erected a concrete border, approximately 13V2 feet in width by 38V2 feet in depth, enclosing the central area where the existing graves are actually located. The plat shows the existing foot stones marking the graves found in this central area. Along each side of this central area where the graves are located, defendant constructed a concrete border enclosing an area, approximately 5 feet in width and 38V2 feet in length, for flowers and shrubs. Plaintiffs contend the construction of these concrete borders around the beds for flowers and shrubs has unlawfully reduced the area available for gravesites.

The trial judge did not expressly discuss this issue. We have carefully studied the record and find that the erection of these concrete borders around the flowerbeds does not interfere with the space which had been used in the past for gravesites. Moreover, the beds are consistent with the use of the property for cemetery purposes. Thus, we find no merit in this argument.

The plaintiffs’ final argument is that the trial court erred in assessing court costs 60% to the plaintiffs and 40% to the defendant. According to LSA -C.C.P. Article 1920, the trial court is free to assess costs as it may consider equitable. The ratio determined by the trial court in the present case cannot be considered inequitable or unduly harsh.

For the reasons assigned, the judgment appealed is amended to delete therefrom the provision in paragraph No. 6 that defendant has the power to prevent any future burials in the cemetery. Otherwise, the judgment is affirmed at plaintiffs’ costs.

AFFIRMED, AS AMENDED.

      .Although plaintiffs do not plead such a claim, we note that in 1973, defendants vendor, W~ K-N Real Estate, Inc., recorded a plat of the subdivision, known as Hickory Hill Estates, containing a reference to the Smith Cemetery. It could be argued that the mere recordation of the plat may have been sufficient to constitute a formal or statutory dedication of the cemetery under LSA-R.S. 33:5051 and R.S. 33:31, vesting title rather than only a servitude to the public. Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (La.1965). See also Pioneer Production Corporation v. Seagraves, 340 So.2d 270 (La.1976). We have found no cases applying these statutes to the dedication of cemeteries. See 16 L.L.R. 582, 584 (1956).

      . Also entitled Choppin v. Labranche.

      . See Judge Tate’s dissent at 225 So.2d 699.


text:
    DAVID SHELTON AMVETS POST 60, Plaintiff and Appellant, v. Mrs. Andrus SAM, Defendant and Appellee.
    No. 7642.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Writ Refused Dec. 5, 1980.

      Otha Curtis Nelson, Sr., of Simmons, Nelson & Dunn, Baton Rouge, for plaintiff and appellant.
    Kimball, McLeod & Dow, William L. McLeod, Jr., Lake Charles, for defendant and appellee.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   CULPEPPER, Judge.

The David Shelton Amvets Post 60 sues Mrs. Andrus Sam for $2,900, representing a Bingo game jackpot allegedly won by her through fraud. The trial judge found plaintiff failed to prove fraud. Plaintiff appeals.

The substantial issues on appeal are: (1) Does plaintiff have the burden of proving fraud? (2) If so, did plaintiff prove fraud? (3) Did the trial court err in denying the motion for a new trial?

The plaintiff contends it is a veterans organization operating as a nonprofit corporation which provides scholarships to worthy college students. Since 1974, the organization has been conducting Bingo games three nights a week. Bingo games are regulated under LSA-R.S. 33:4861.1, et seq., which permits the operation of certain gambling activities by licensed organizations. The first license issued to plaintiff is dated October 1, 1975, which was about one month after the incident at issue here. Thus, for purposes of this case, plaintiff had no license and the Bingo game was illegal.

Amvets holds its games on premises owned by Mr. Waldred A. Fourcard, an officer of the organization. Amvets does not pay Mr. Fourcard any rent for use of the building, but pays a “note on repairs” and for gaming equipment. The games are run by Mr. Fourcard with assistance from Mr. Ephriam Lee, some members of the Fourcard family and various college students.

Amvets obtains its equipment from the Bingo King Company and uses only Bingo King cards in its games. The cards are produced in different series according to size. Each card in a series has a registration number and a set pattern in which the game numbers appear. Every card with the same registration number also has the same game number pattern. Bingo King customers are furnished with a master sheet showing the number pattern for each card. As cards are used or lost, Amvets simply purchases duplicates. Consequently, there may be several cards in play having the same numbers.

Mr. Charles L. Dornbus, sales manager for Bingo King, testified the company regularly received reports of attempts to alter the cards. He also explained that any error in recording the registration number of a card would render the master sheet useless in checking the cards.

A player must purchase and register his card(s) before the game begins. The registration procedure consists of having both the registration number and the total number of cards purchased written on a white slip of paper, which is stamped with the date and the name and address of Amvets. There are no other identifying marks on the receipts.

Mr. Ephriam Lee calls all of the games for Amvets. When a person covers the required number of spaces on his card, he signifies the same by calling out “Bingo.” His card is then taken to Mr. Fourcard or Mr. Lee, who will call out the numbers on the card to see if the numbers have actually been called. The numbers are usually checked twice and the card is usually verified as having been registered. If there is a mistake, the card is returned to the holder and the game proceeds until the game is won.

The defendant went to Amvets Post 60 to play for the jackpot on or about August 20, 1975, along with her daughter, Barabra Lee, and a friend, Rose Montgomery. All of the ladies testified they purchased only one Bingo card each.

Mrs. Sam played the usual games prior to the jackpot game. The jackpot game was explained by the witnesses to be a Bingo game where the entire card had to be filled with the calling of 55 numbers or less. Mr. Fourcard kept a special record of the numbers called in the jackpot game to ensure only 55 numbers were called. During the jackpot game, Mrs. Sam called “Bingo.” The card was picked up at the table and shown to Mr. Fourcard, who in turn called out the numbers on the card to Mr. Ephriam Lee, Jr. When it was discovered that N -31 had not been called, the card was returned to Mrs. Sam. After three additional numbers were called, Mrs. Sam called out “Bingo” again, and the card was rechecked as it had been previously. Mr. Fourcard then declared an official Bingo and paid Mrs. Sam $2,900.

The validity of Mrs. Sam’s Bingo was first questioned by another player, Mrs. Lula Mae Sinegal, who lingered after the game was over to check her card. According to the testimony of Mrs. Sinegal, another unidentified player said she had heard Mr. Fourcard call out # 1685 as the registration number of Mrs. Sam’s winning card. This was the registration number on one of the 16 cards Mrs. Sinegal was playing. She lacked one number for a Bingo on a card she believed was identical to Mrs. Sam’s. Mrs. Sinegal called this to Mr. Fourcard’s attention and he sought to recheck the Bingo. Mr. Fourcard testified he observed one of the college students pick up three receipts from the table where Mrs. Sam had been seated. One of the receipts bore the numbers “1685” and “1690” placed over a slash mark and the number “2”.

The evidence is in conflict on two substantial points. First, Mrs. Sam and her witnesses testified they did not receive registration receipts on the night in question and had never received one at any time they had played at Amvets. Plaintiff’s witnesses testified receipts were always given to players.

Second, Mrs. Sam and her witnesses testified they left their cards on the table. Mr. Fourcard testified the card was returned to Mrs. Sam and was not on the table immediately after she left. The winning card was never produced at trial.

It was plaintiff’s position at trial that # 1685 was the registration number of Mrs. Sam’s card. Several of the numbers in the number pattern on this card were not among those called in the jackpot game. Consequently, plaintiff contends Mrs. Sam altered her card and won the jackpot by fraud. No explanation was made as to how the card was altered. Defendant testified she could not recall her card number and denied altering any numbers:

The basic issues at trial were the burden of proof necessary to prove the fraud, and whether this burden was met. In written reasons, the trial judge concluded fraud must be established by proof stronger than the mere preponderance of the evidence and found as follows:

“There was not enough proof to show that Mrs. Sam received Card No. 1685 and it was only Mr. Fourcard’s testimony that that was the serial number on the winning card. As for the card being altered, the Court feels that in view of the surroundings and the closeness of the crowd at these games it would be impossible to alter some seven (7) numbers, together with the denial of the defendant and three witnesses that any alterations were made.
“After hearing the testimony, considering the evidence and the above principles of law this Court has concluded that the plaintiff has failed in its burden to prove that there was a fraud practiced upon it by the defendant.”

BURDEN OF PROOF

On appeal, plaintiff contends the trial court erred in finding plaintiff had the burden of proving fraud and in finding fraud was not proved. Additionally, plaintiff argues the jackpot was paid through error or mistake and urges LSA-C.C. Articles 2301 and 2302, dealing with “Payment of a Thing Not Due”, as the basis for its recovery.

The defendant contends proof of fraud is required since plaintiff’s action is one for the recovery of a gambling debt under LSA-C.C. Articles 2983 and 2984, which provide:

“Art. 2983. The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing.
And as to such games, the judge may reject the demand, when the sum appears to him excessive.”
“Art. 2984. In all cases in which the law refuses an action to the winner, it also refuses to suffer the loser to reclaim what he has voluntarily paid, unless there has been, on the part of the winner, fraud, deceit, or swindling.”

We agree with the defendant’s contentions. Bingo is commonly known as a game of chance and, as such, must be considered a form of gambling. Our strong public policy against gambling is embodied in the Louisiana Constitution of 1974, Article 12, Section 6, which provides:

“Neither the state nor any of its political subdivisions shall conduct a lottery. Gambling shall be defined by and suppressed by the legislature.”

The legislature has defined gambling in LSA-R.S. 14:90 as follows:

“§ 90. Gambling
“A. Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.
“Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.”

The legislature has also provided that some forms of gambling shall be allowed under regulation. The Charitable Raffles, Bingo and Keno Licensing Law, LSA-R.S. 33:4861.1, et seq., provides for the lawful operation of Bingo games under license and special conditions. The evidence in this case shows, however, that Amvets had not satisfied all of the conditions of the statute. Mr. Fourcard testified at trial that Amvets had never submitted reports required under LSA-R.S. 33:4861.13. The evidence also established Amvets had no permit or license prior to October 1, 1974.

Since plaintiff was not operating in compliance with LSA-R.S. 33:4861.1, et seq., we need not reach the question of whether the legalization of Bingo games allows the plaintiff to recover a payment made through error or mistake. See Marceaux v. V.F.W. Post 2130, 337 So.2d 923 (3rd Cir. 1976). The statute does not apply here. This action is controlled by LSA-C.C. Articles 2983 and 2984 quoted above. Under these articles, plaintiff cannot maintain an action for the recovery of a gambling loss unless the payment was induced by the winner’s fraud. Accordingly, proof of fraud was an essential element in plaintiff’s case.

PROOF OF FRAUD

The record fully supports the trial court’s finding that plaintiff failed to prove fraud. Plaintiff’s entire case rested on the contention Mrs. Sam was playing card # 1685. It is apparent the trial judge determined plaintiff failed to prove that fact by any standard of proof. Based on the evidence, we cannot say the trial judge was clearly wrong.

MOTION FOR NEW TRIAL

Plaintiff filed a motion for new trial on grounds listed in ’ LSA-C.C.P. Article 1972(1) and (2) which provide:

“Art. 1972. Peremptory grounds
“A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) Where the judgment appears clearly contrary to the law and the evidence;
(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial;”

In the motion, plaintiff alleged a new trial was necessary to take the testimony of Mr. Jack Suydam, an employee of the Lake Charles District Attorney’s office. Mr. Suydam was subpoenaed by plaintiff but released before trial when the witness told plaintiff he had no useful information. During trial, the defendant testified Mr. Suydam was a friend of hers. Plaintiff now contends Mr. Suydam should be made to testify. Plaintiff does not contend, however, the witness has any new evidence to offer.

The record shows Mr. Suydam was one of two investigators for the DA’s office who talked to Mrs. Sam after plaintiff made an official complaint about the Bingo game. The other investigator did testify at trial. There is nothing to suggest Mr. Suydam’s testimony would provide any additional facts.

Plaintiff also alleged a new trial should be granted in order to obtain testimony from a handwriting expert. Plaintiff introduced into evidence certain slips of paper referred to as “registration receipts.” These slips had numbers written in red ink on the reverse side. . Plaintiff had these slips in its possession since 1975 and failed to have them analyzed before trial in 1979. We see no reason why plaintiff could not have had an analysis made during this time.

We point out that this suit was tried almost four years after filing. Plaintiff had ample opportunity to discover anything pertinent to this case. We find the trial judge was correct in denying the motion for new trial.

For the reasons assigned, the judgment appealed is affirmed at plaintiff’s costs.

AFFIRMED.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    No. 7680.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert W. Daigle, Lafayette, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, Shelton & Legendre, L. H. Olivier, Lafayette, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   SWIFT, Judge.

This is a proceeding under LSA-R.S. 23:1634 for a judicial review of a decision of the Board of Review of the Office of Employment Security. The plaintiff is South Central Bell Telephone Company, employer of the claimant, Beverly M. Tinnin. Plaintiff has appealed from a decision of the district court affirming a ruling of the board of review which awarded Ms. Tinnin unemployment compensation benefits.

The sole issue presented is whether Ms. Tinnin is entitled to unemployment compensation benefits during a leave of absence taken as a result of claimant’s pregnancy.

The findings of fact and opinion of the board of review are as follows:

FINDINGS OF FACT
“The claimant worked for the above-mentioned employer approximately 3V2 years. Her last job was as Garage Attendant. The claimant has been performing this work since April 1, 1978. She was scheduled to work from 4:00 P.M. to 12:00 Midnight, Monday through Friday. At the time of her separation she was earning $195.00 per week.
“The evidence further shows that it was recommended by the claimant’s physician that she stop doing the kind of work that she was doing because she was in the third month of her pregnancy and the physician thought that the claimant could injure herself by performing this type of work.
“The claimant asked for a transfer to other work within the company but was told that none was available. She then asked for and was granted a leave of absence to extend until six weeks after the delivery of her child, which is expected January 20, 1979. A statement on Form LDOL-ES 562 was received by the Agency which was signed by her physician on June 12, 1978, indicating that she was not able to work at the time and would not be able to until after her delivery. This statement was also presented to the employer. The claimant intends to return to work with the employer after the birth of her child.”
OPINION
“R.S. 23:1600(3) provides that an unemployed individual shall be eligible to receive benefits with respect to any week only if the Administrator finds that he is able to work, and is available for work. “After carefully reviewing all the testimony evidence, and records in this ease, the Board finds that the claimant’s unemployment was brought about because she became pregnant and her physician felt that she was unable to continue performing her regular employment because he felt that the claimant could possibly injure herself in doing this kind of work. “The Board further finds that the claimant asked for a transfer to lighter work and there were no openings. She was then placed on leave of absence without pay. The claimant had submitted into the records a statement signed by her physician, J. L. Zehnder, M.D., to the effect that she could perform light duty work until further notice.
“Due to the aforementioned, this Board must conclude that the claimant does in fact meet the eligibility requirement under R.S. 23:1600(3).
“IT IS, THEREFORE, ORDERED that the decision of the Appeals Referee be reversed and the claimant be declared available for work and eligible for benefits effective June 12, 1978.”

It is unnecessary for us to decide whether or not the board’s finding that claimant meets the eligibility requirement of LSA-R.S. 23:1600(3) as being able to work, because we have concluded it erred in failing to find that the claimant was disqualified from receiving benefits under LSA-R.S. 23:1601(1). This section of the statute provides:

“An individual shall be disqualified for benefits:
“(1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.” [Emphasis added]

Prior to 1977, LSA-R.S. 23:1601(6) provided:

“(6) No individual (who meets the requirement of R.S. 23:1600) who on account of pregnancy has been required to leave her employment pursuant to an employment contract rule or policy or on the advice of a physician shall be disqualified from benefits because of such leaving provided application has been made for a leave of absence if such is available.”

However, by Acts 1977, No. 745, § 6 was repealed. Therefore, the determinative issue presented in this case is whether the claimant left work for good cause connected with her employment.

In Algiers Homestead Association v. Brown, 246 La. 738, 167 So.2d 349 (La.1964), the court found that although pregnancy is a good cause for leaving one’s employment, it is not a good cause connected with employment. See also, Olin Mathieson Chemical Corporation v. Brown, 188 So.2d 159 (La.App. 2 Cir. 1966). The sole reason for Ms. Tinnin leaving her employment was her pregnancy and her request for a leave of absence. Therefore, the rationale of Algiers and Olin Mathieson is applicable and the claimant is disqualified from receiving unemployment compensation benefits.

We are not presented with the factual situation where an employee was denied reinstatement after termination of a leave of absence. In Southern Bell Telephone and Telegraph Co. v. Administration, Division of Employment Security of the Dept. of Labor, 211 So.2d 634 (La.1968), the claimant was granted a maternity leave of absence pursuant to a collective bargaining agreement. After termination of her leave of absence, she was denied reinstatement because no job openings were available. Thereafter, she filed a claim for unemployment compensation benefits and the court concluded that she was entitled thereto. The case was distinguished from Algiers on the basis that the claimant left work at the termination of her leave of absence, not because of pregnancy, but because of the unavailability of an opening.

In the present suit Ms. Tinnin does not contend that she was not reinstated after termination of her leave of absence. Her claim is for unemployment compensation benefits during the leave of absence.

For the foregoing reasons, the judgment of the district court and the order of the board of review are reversed and set aside. It is further ordered, adjudged and decreed that the demands of the claimant, Beverly M. Tinnin, for unemployment benefits be and they are hereby rejected.

REVERSED AND RENDERED.