text:
    Mrs. Jerry SMITH, Born Cheryl Edlyn Stephens, Plaintiff-Appellant, v. Roy B. STEPHENS, Dow L. Stephens and Jeanette Stephens Proctor, Defendants-Appellees.
    No. 8330.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida, Alexandria, Simms, Tillman & Fontenot, Elvin C. Fontenot, Cabra, Leach & Tilley, Edwin L. Cabra, Thomas A. Self, Leesville, for defendants-appellees.

      Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Mrs. Jerry Smith, born Cheryl Edlyn Stephens, instituted this suit against the legitimate heirs of James Edward Stephens and other defendants including Roy 0. Martin Lumber Company seeking recognition as a surviving child and irregular heir of James Edward Stephens. As an illegitimate child and irregular heir, plaintiff claims she is entitled to an interest in the Stephens estate or alternatively, to one-fourth the value of the Stephens estate.

Roy 0. Martin Lumber Company, the purchaser of a portion of the Stephens estate property, filed a dilatory exception of prematurity based upon plaintiff’s failure to first obtain a judgment recognizing her as an irregular heir and placing her in possession of the Stephens succession. The trial court sustained the exception of prematurity and dismissed without prejudice plaintiff’s suit against Roy 0. Martin Lumber Company. Plaintiff appeals.

MOTION TO DISMISS

The defendant-appellee, Roy 0. Martin Lumber Company, moves to dismiss the appeal of the plaintiff-appellant, Mrs. Jerry Smith, contending the trial court ruling is a non-appealable interlocutory judgment. We deny the motion to dismiss the appeal.

The plaintiff claims to be the daughter of Louise Callie Stephens and James Edward Stephens. At the time of her birth, James Edward Stephens was married to Jeanette D. Stephens. From this marriage three children were born: Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor. James Edward Stephens died in 1959. On August 10,1959, the judgment of possession rendered in his succession recognized Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor as his surviving children and sole heirs. In 1971, Roy 0. Martin Lumber Company purchased property formerly belonging to the estate of James Edward Stephens.

Plaintiff instituted this suit against Roy O. Martin Lumber Company and several other defendants seeking recognition as a surviving child and heir of James Edward Stephens entitled to an undivided one-fourth interest in all the property owned by James Edward Stephens at his death. Alternatively, plaintiff seeks a money judgment for one-fourth the value of James Edward Stephens estate. The plaintiff’s claim is founded upon her being the illegitimate child and irregular heir of James Edward Stephens.

The Roy 0. Martin Lumber Company filed a dilatory exception of prematurity based upon plaintiff’s failure to first obtain a judgment recognizing her as an irregular heir and putting her into possession of the Succession of James Edward Stephens. The trial court sustained the dilatory exception of prematurity and dismissed plaintiff’s suit without prejudice.

The dismissal of a suit as the result of sustaining a dilatory exception of prematurity is a dismissal without prejudice. A dismissal without prejudice is a final judgment from which an appeal will lie. Pasquier, Batson & Co. v. Ewing, 367 So.2d 28 (La.App. 2nd Cir. 1978), writ den., 368 So.2d 136 (La.1979); Butler v. Flint-Goodridge Hosp. of Dillard U., 346 So.2d 1131 (La.App. 4th Cir. 1977); Rapides Savings & L. Ass’n v. Lakeview Develop. Corp., 326 So.2d 511 (La.App. 3rd Cir. 1976); Lee v. Carruth, 217 So.2d 718 (La.App. 3rd Cir. 1969), writ ref’d, 254 La. 470, 223 So.2d 873 (1969); People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App. 3rd Cir. 1966).

The motion to dismiss the appeal is denied.

ON THE MERITS

We take the liberty of quoting the trial judge’s scholarly analysis of the issue before the court.

The original petition filed by the plaintiff herein on August 2, 1977, named as defendants in this action Roy B. Stephens, Dow L. Stephens and Jeanette Stephens Proctor.

The plaintiff in this action was born July 16, 1952, purportedly the issue of an adulterous union between James Edward Stephens (also known as J. Ed Stephens), age 57, and Louise Callie Stephens, age 28 years. Although their surnames appear the same, James Edward Stephens and Louise Callie Stephens were unrelated.

For many years prior to the year 1952 James Edward Stephens had been married to Jeanette Dow Stephens which marriage was dissolved by decree of divorce rendered on the 7th day of February 1957 in an action bearing number 14,179 on the docket of the Thirtieth Judicial District Court, Vernon Parish, Louisiana.

It is undisputed that the defendants named in the original petition were children bom issue of the marriage of Jeanette Dow Stephens and James Edward Stephens. The three children named as defendants herein were recognized as the sole and only heirs of J. Ed Stephens (James Edward Stephens) who died intestate on December 10, 1957 and were placed in possession, in the proportions of an undivided one-third interest to each, of the property, both movable and immovable, which was owned by him at the time of his death by a judgment dated August 10, 1959 rendered in proceedings styled “Succession of J. Ed Stephens” number 2543 on the docket of the Thirtieth Judicial District Court, Vernon Parish, Louisiana.

In her petition the plaintiff seeks to be recognized as an heir and to be recognized as entitled to the ownership and possession of an undivided one-fourth interest in and to all of the property owned by J. Ed Stephens at the time of his death, or alternatively, for judgment against the defendants for an amount equal to one-fourth of the value of the decedent’s estate together with interest, etc.

A first supplemental and amending petition filed on November 2, 1979 alleges that portions of the property of the estate of Mr. Stephens has been transferred to other persons or entities and makes these last transferees, including Roy 0. Martin Lumber Company, a defendant in these proceedings.

On May 16, 1980 Roy O. Martin Lumber Company filed a dilatory exception of prematurity contending that (a) the plaintiff is at best an irregular heir of the decedent, and (b) an action to be declared owner of an undivided interest in immovable property owned of record by exceptor is premature until the plaintiff has first been recognized as an heir and placed in possession of succession property. This exception is before the Court.

R.C.C. Article 919, as it existed prior to the year 1980, effected a total statutory disinheritance of acknowledged illegitimate children whose natural fathers were survived by either legitimate descendants, ascendants, collaterals, or surviving spouse. Only the state was excluded from inheritance by virtue of the existence of an acknowledged illegitimate child. Article 919 was declared unconstitutional in Succession of Sidney Brown, Jr., Ct.App. 2nd Cir. (1980) 379 So.2d 1172; Rehearing denied February 29, 1980. The Louisiana Supreme Court granted writs to consider the question of constitutionality. The decision of the Second Circuit Court of Appeals striking down Article 919 was affirmed. See Succession of Sidney Brown, Jr., Sup.Ct. (1980) 388 So.2d 1151; Rehearing denied October 24, 1980.

Although it appears from the argument of counsel, the briefs filed herein and the records of other judicial proceedings to which reference has been made that the plaintiff was conceived of an illicit union between her mother, Louise Callie Stephens, and James Edward Stephens, the plaintiff’s pleadings (original petition and first and second supplemental and amending petition) do not allege any acknowledgment of paternity by James Edward Stephens. Only by reading between the lines can the illegitimacy of the plaintiff be discerned.

It is, however, apparent that that plaintiff did not fall within the category of “legitimate” child at the time of her birth. The purported father was married to a woman other than plaintiff’s mother at the time of both conception and birth. There are no allegations concerning a prior marriage of plaintiff’s mother nor is there any evidence before the Court to establish whether she had been married or whether, when and how that marriage was dissolved.

Chapters 1 and 2 of Title VII of the Louisiana Civil Code (Articles 178-212 inclusive) were amended by Act 607 of 1979. Nevertheless, under the provisions of R.C.C. 180, plaintiff’s rights began as those to which an illegitimate child may have. This is not to say, though, that plaintiff may not be able to establish some rights in this matter.

There has been no contention and no showing that plaintiff was born of an incestuous union, and, consequently, it is possible that she may have acquired almost the full panoply of rights to which a legitimate child would be entitled. Both before and after its amendment R.C.C. Article 198 provides that a child born out of marriage may be legitimated by the subsequent marriage of his or her father and mother, if formally or informally acknowledged, either before or after the marriage. If acknowledged and if the mother and father were subsequently married, an illegitimate child has the same rights as a child born issue of the marriage. See R.C.C. Article 199.

As previously pointed out, these proceedings do not allege any acts of acknowledgment. It is not alleged that there exists any notarial act executed by James Edward Stephens pursuant to the provisions of R.C.C. Article 200 or R.C.C. Article 203 for the purpose of either legitimation or acknowledgment. The execution of such an act is expressly authorized for those purposes. Also the act authorized by Article 203 is not the sole means of acknowledging a child. The jurisprudence is to the effect that one may acknowledge a child informally by holding the child out as his or hers, without concealment and with general community knowledge of the relationship. There are likewise no allegations or proof of such informal acknowledgment.

Perhaps more important is the fact that there are no allegations or evidence to establish that James Edward Stephens and Louise Callie Stephens were ever married. Although not precluded from proving a paternal relationship with the decedent, the illegitimate cannot claim legitimate status in the absence of notarial legitimation (R.C.C. Art. 260) or acknowledgment, formal or informal, and marriage of the mother and father.

R.C.C. Article 208 provides that illegiti-mates who have not been acknowledged by notarial act (R.C.C. Art. 203) may be allowed to prove their paternal descent. The manner of proof of such descent is treated by R.C.C. Article 209. Needless to say, such proof requires allegation and evidence to establish the truth of the facts sought to be proved.

Plaintiff’s counsel apparently assumes that the Supreme Court in striking down Article 919 has accorded to an illegitimate the full rights of legitimate status without the necessity of proving his or her entitlement to those rights. The writer disagrees with that contention.

In Brown the Court struck down the exclusionary provision of R.C.C. 919 as an unreasonable discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and of Article 1, Sec. 3 of the Louisiana Constitution of 1974. The Court did not establish an illegitimate, not acknowledged, as an heir.

The state has an interest in providing for the orderly descent of succession property and for stable land titles. These interests were recognized as permissible state interests in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503. Lalli recognizes that problems inherent in the notion of simply treating illegitimates like all other heirs of an intestate father, and, giving effect to the interest of the state, held that the requirement of the New York statute that, in order to inherit, the illegitimate must obtain a filiation order during the father’s lifetime was “substantially related” to an important state interest, i. e., just and orderly disposition of property at death, and was thus not unconstitutional under the Equal Protection Clause. It is to be noted that the New York statute did not simply and arbitrarily exclude all illegitimates if other heirs existed as did Article 919. It does not appear to be arbitrarily, capriciously or unreasonably discriminatory to require that an illegitimate be required to prove paternity and acknowledgment, either formal or informal, prior to being considered eligible to succeed to the estate of an intestate father. Nor is it arbitrarily, capriciously or unreasonably discriminatory to provide, in the interest of orderly devolution of property and the stability of land titles, that illegitimates should be treated as irregular heirs, entitled to possession of succession property only from the date of his or her recognition by a court of competent jurisdiction.

The removal of the exclusion embodied in R.C.C. 919 leaves the statutory posture of the law of Louisiana such as to permit an illegitimate to prove paternity and acknowledgment and thus be recognized as an heir. See R.C.C. Arts. 208, 209, 925 and 949.

Such an heir of an intestate decedent would be an irregular heir as distinguished from a legal heir or legatee. Under the provisions of R.C.C. Article 949 irregular heirs do not succeed from the moment of death under the doctrine le mort saisit le vif. On the contrary, they must be recognized and placed in possession. In Hibbert v. Mudd, Sup.Ct. (1974) 294 So.2d 518, 522 it was said:

‘We have previously indicated that the claimants herein were issue of miscege-nous and adulterous unions. At best, they were irregular heirs. Unlike regular heirs who enjoy seizin, and who succeed to ownership of the decedent’s estate at the moment of death without benefit of formal proceedings (Article 944 C.C.), the doctrine ‘Le mort saisit le vif’ does not apply to irregular heirs. Succession of Barber, 52 La.Ann. 960, 27 So. 363 (1900); Glenn v. West, 151 La. 522, 92 So. 43 (1922); Succession of Giordano, 188 La. 1057, 178 So. 627 (1938); Wimberly v. King, 179 So. 515 (La.App. 1938).
‘An irregular heir has only a right of action to have himself placed in possession. Such an heir owns no interest in the property until contradictory proceedings are filed with other irregular heirs or claimants and a judgment secured recognizing him as owner. Article 949 Civil Code; Succession of Allen, 44 La. Ann. 801; 11 So. 42 (1892); Glenn v. West, 151 La. 522, 92 So. 43 (1922); Succession of Giordano, 188 La. 1057, 178 So. 627 (1938).’ (emphasis added)

In line with the reasoning and the authorities set forth hereinabove it is the opinion of the writer that, as of this date, the plaintiff has a right of action in which she may seek to have herself declared an irregular heir of the decedent, James Edward Stephens. As a part of such an action she may allege her paternity and the acknowledgment of the relationship and offer evidence to prove those allegations. If she is successful in meeting her burden of proof, she is entitled to recognition as an irregular heir. Until she had done so, she has no ownership interest in the property belonging to the succession of her alleged father. She likewise is premature in asserting any cause of action connected with those properties.

It is, accordingly, the opinion of the writer that the exception of prematurity should be sustained. Article 933 of the Code of Civil Procedure provides expressly that if the exception of prematurity is sustained, the suit shall be dismissed. Such dismissal is, however, without prejudice to the right of the plaintiff to bring her suit again when the action has matured.

For the reasons set forth hereinabove the exception of prematurity is sustained, and, upon presentation, judgment will be signed dismissing the suit, without prejudice insofar, and only insofar, as it affects exceptor.”

We conclude, as did the trial judge, that the rule of law announced in Glenn v. West, 151 La. 522, 92 So. 43 (1922) and Hibbert v. Mudd, 294 So.2d 518 (La.1974), is controlling, i. e. that plaintiff, an irregular heir, has only the right of action to have herself placed in possession, owning no interest in the succession property until contradictory proceedings are filed with other irregular heirs or claimants and a judgment secured recognizing her as owner.

Plaintiff in brief to this court directs us to Kuchenig v. California Company, 410 F.2d 222 (5th Cir. 1969). The issue in the Kuchenig case was whether an individual who was “equitably adopted” in Missouri would be recognized as a “lawfully adopted” person under Louisiana law. Since that case did not deal with the rights of an irregular heir, as plaintiff herein contends, it is of no benefit to this court.

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

AFFIRMED.

CULPEPPER, Judge,

concurring.

I concur in the majority opinion except for the language which indicates that seizin equates with ownership. In Baton v. Taylor, 386 So.2d 333 (La.1979), our Supreme Court held that seizin is not ownership. The opinion states:

“The redactors of the Code of 1928 made the distinction between ownership and seizin clear when they adopted the French system of succession, which embodies two different concepts: (1) Ownership rights of the heir are vested from the moment of the death, and (2) seizin, the faculty of claiming and exercising possession, is acquired by either the forced heirs, the universal legatee or the legitimate heirs at the moment of death. Lazarus, supra, at 201; Comment, 49 Tul. L.Rev. 1110, 1111 (1975); 1 Louisiana Legal Archives, Projet of the Civil Code of 1825 at 115. In other words, as Planiol observes:
“Seizin has nothing to do with the transfer of property, which takes place immediately, whether it is in favor of heirs who have seizin, or who are deprived of it. It affects only the taking of possession of the estate, which takes place in two forms, one for the property in kind, the other for the rights of action. 3 Planiol, supra, See. 1938, pp. 604-05.”

In the present case, the plaintiff, being an illegitimate child, is an irregular heir without seizin. LSA-C.C. Articles 925 and 949. This means that the plaintiff cannot take possession of or claim any interest in the property of the succession until she has filed a suit, proved that she is an irregular heir and obtained a judgment recognizing her as such. See Hibbert v. Mudd, 294 So.2d 518 (La.1974) and the cases cited therein. Our decision in the present case does not deprive plaintiff of any ownership rights which she may have. The issue of her ownership rights is not before us. The only issue is whether she must follow the procedures set out in our Civil Code for the orderly presentation of her rights. For a full discussion of the sources and the effect of the civil law concept of seizin, see 3 Planiol, Part 1, numbers 1929-1943 A, pages 601-608.

The requirement of a prior court order or judgment recognizing an illegitimate heir appears to be very similar to the “filiation order” held to be a permissible state statute requirement in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503.

      . Although their surnames appear to be the same, James Edward Stephens and Louise Callie Stephens are unrelated.

      . See Official Revision Comment (c) following LSA-C.C.P. Art. 933.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    GUY SCROGGINS, INC., Plaintiff and Appellant, v. EMERALD EXPLORATION, et al. Defendants and Appellees.
    No. 8333.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Mouton & Jeansonne, Patrick J. Briney, Lafayette, for plaintiff appellant.
    Adcock, Horne, Caldwell, Coleman & Duncan, Jack C. Caldwell, Franklin, Plauche, Hartley, Lapeyre & Ottinger, Patrick S. Ottinger, Voorhies & Labbe, Richard D. Chappuis, Onebane & Associates, Robert L. Cabes, Lafayette, for defendants-appel-lees.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   CULPEPPER, Judge.

Plaintiff seeks specific performance of a June 6, 1973 agreement and a Joint Operating Agreement which would entitle him to share in production from all leases covered thereby. He also seeks an accounting for production from the leases. In the alternative, plaintiff prays for 15 million dollars in damages for loss of past, present and future income from the leases. Made defendants are Emerald Exploration, a partnership (now dissolved) consisting of Alfred Lam-son, Sam Bennett and Frank Danna, and the said partners individually, and Edwin L. Cox and Dow Chemical USA. All defendants filed exceptions of no cause or right of action on the grounds that plaintiff had failed to allege any written contracts under which he is entitled to the relief sought. The district court found that plaintiff’s petition, together with the annexed documents, failed to state a cause or right of action. However, as discovery had previously been denied by the court, plaintiff was allowed thirty days in which to amend his petition so as to state a cause or right of action. Plaintiff then filed his second supplemental and amending petition, to which exceptions of no right or cause of action were also filed by all defendants. From a judgment of the district court sustaining the exceptions of no cause or right of action, plaintiff appeals.

The decisive issue is whether plaintiff has alleged a'cause of action against the defendants for specific performance or, in the alternative, damages for loss of income.

Plaintiff endeavors, through a complex exchange of letter-agreements and documents, to establish a working interest in the leases and the right to become a signatory party to a joint operating agreement signed on August 27, 1973 by the defendants, Emerald, Dow and Cox. The sequence of events are set forth chronologically in plaintiff’s second supplemental and amending petition as follows:

“3.

“By instrument dated October 1, 1971, J. Hus Hawkins acquired an oil, gas and mineral lease from Lignum Oil Company covering acreage in Section 37, Township 9 South, Range 9 East, with other lands.

“4.

“By separate instrument of the same date, Hawkins acquired an oil, gas and mineral lease from Bayou Bouillion Corporation, covering substantially the same acreage as that affected by the Lignum lease.

“5.

“By letter agreement dated August 29, 1972, Hawkins transferred a portion of his rights under these leases to Guy Scroggins. A copy of that letter agreement is attached hereto as Exhibit ‘A’; it, and all subsequent exhibits to which reference is made in this pleading are made a part hereof by way of reference, as though set forth herein in extenso.

“6.

“By letter dated June 28, 1973, Scroggins made ‘Emerald Oil Corporation’ and its officer, Alfred Lamson, aware of the agreement of August 29, 1972. A copy of this letter is attached as Exhibit ‘B’.

“7.

“On the same date, Scroggins, individually transferred his rights under the August 29, 1972 agreement with Hawkins to Guy Scroggins, Inc. A copy of the instrument of transfer is attached hereto as Exhibit ‘C’.

“8.

“By letter agreement dated June 6, 1973, Hawkins and Emerald agreed:

(a) That Emerald would obtain new leases from the Bayou Bouillion Corporation and Lignum Oil Company, affecting a portion of the lands covered by the October 1, 1971 leases by Lignum and Bayou Bouillion in favor of Hawkins;
(b) That Hawkins would release and relinquish his rights under the October 1, 1971 leases as to the lands covered by the new leases in favor of Emerald;
(c) That Hawkins would receive an overriding royalty interest, affecting the lands covered by the new leases to Emerald, convertible to a working interest after payout;
(d) That, in the event of conversion, Hawkins should ‘execute the same joint operating agreement as that executed by the other working interest participants’.

“A copy of the June 6, 1973 agreement is attached hereto as Exhibit ‘D’.

“9.

“On June 7, 1973, Emerald obtained a new lease from the Bayou Bouillion Corporation. A copy of that lease is attached as Exhibit ‘E’.

“10.

“On the same date, Emerald obtained a new lease from Lignum Oil Company. A copy is attached as Exhibit ‘F\

“11.

“On June 7, 1973, Hawkins and Scroggins were requested to execute a document prepared by Emerald, in which both Hawkins and Scroggins partially released rights held by them under the October 1, 1971 lease by Lignum to Hawkins. Both Hawkins and Scroggins did execute this document, a copy of which is attached as Exhibit ‘G’.

“12.

“On the same date, Hawkins and Scroggins were requested (by Emerald) to execute, and did execute, a similar partial release covering their rights under the October 1, 1971 lease by the Bayou Bouillion Corporation to Hawkins. A copy of this document is attached as Exhibit ‘H’.

“13.

“On July 16, 1973, Emerald and Hawkins executed a letter agreement providing in part as follows:

“ ‘You and we executed letter agreement dated June 6, 1973, wherein we agree to assign to you 4% of 8/8ths overriding royalty with a conversion factor. Since this date you have agreed for us to assign Guy Scroggins l/8th of your Interest, which has been done under date of July 2, 1973. In return, Scroggins is to execute the partial release covering the acreage in Section 37, which Partial Release is executed by you to Bayou Bouillon Corporation and you to Lignum Oil Company.’

“A copy of the July 16, 1973 agreement between Emerald and Hawkins is attached as Exhibit T.

“14.

“On July 2, 1973, Emerald executed assignments of overriding royalty to both Hawkins and Scroggins. Copies of these assignments are attached as Exhibits ‘J’ and ‘K’.

“15.

“On August 27, 1973, Emerald, Cox and Dow executed a ‘Operating Agreement’, a copy of which is attached as Exhibit ‘L’.

“16.

“Numerical Paragraph ‘i’ on Page 15 of the Joint Operating Agreement provides in part as follows:

‘(i) The plat attached hereto as Exhibit ‘E’ designates the unit area of interest between the parties hereto as outlined in green. The area within the red outline is subject to letter agreement with Robert E. Eggerton, wherein he is to receive certain overrides, as further set forth in said letter agreement attached hereto as Exhibit ‘E’.
In the event any party hereto (‘acquiring party’) acquires any leasehold or un-leased mineral interest within the unit area, the other party (‘offeree’) shall be entitled to acquire ‘an interest in such an interest in the same proporation as his or its ownership of the leases covered hereby, upon payment of his or its proportionate part of the actual costs of acquisition. The acquiring party shall furnish the of-feree a copy of the instrument of acquisition together with a statement of the costs of such acquisition. The offeree shall have a period of fifteen days after receipt of notice within which to elect to participate in the cost of the acquisition. If, however, a well is then being drilled within the area, the result of which could effect the value of the offered interest, the acquiring party shall so advise the offeree and the election must be made within 24 hours. If the acquiring party has not received notice of the election within the period provided for above, it shall be conclusively presumed that the offeree has elected to participate in the acquisition . . . ’

“17.

“On information and belief, Exhibit ‘L’ is the only Joint Operating Agreement executed by the working interest participants in the subject leasehold as of this time,

“18.

“By instruments dated, respectively, January 21 and 23, 1975, Hawkins, then Scrog-gins, elected to convert their overriding royalty interests to working interests. Copies of the instruments of election are attached as Exhibits ‘M’ and ‘N’ respectively.

“19.

“Both prior and subsequent to the election aforesaid, Hawkins and Scroggins demanded the right to sign the Joint Operating Agreement, and, upon complying with Paragraph (i) on Page 15 thereof, to share in production from the entirety of the ‘unit area of interest’ specified therein.

“20.

“Notwithstanding the provisions of the written agreements to which reference is made hereinabove, neither Hawkins nor Scroggins were afforded an opportunity to ‘execute the same Joint Operating Agreement as that executed by the other working participants’.

“21.

“By written instruments, which constitute a portion of the public records of the State of Louisiana and its parishes, Guy Scroggins, Inc. changed its name to Elise Scroggins, Inc., then conveyed all of its right, title and interest under the documents aforesaid to a new corporation, the plaintiff in this action, Guy Scroggins, Inc. The plaintiff specifically reserves the right to file of record, at an appropriate time, copies of the documents aforesaid, and to include those documents as exhibits to this Second Supplemental and Amending Petition.

“22.

“At all pertinent times, all defendants were aware of the written instruments to which reference is made hereinabove, and recogni-zant of the riSht of Guy Scroggins, Inc. to ^ ‘the same Joint Operating Agreement as executed by the other working interest participants.

“23.

“This Court should order the defendants to specifically perform their obligations under the June 6 agreement and the Joint Operating Agreement.”

Plaintiff prays “For specific performance of the contractual obligations assumed by all defendants under the June 6 agreement and the Joint Operating Agreement.” He does not pray for specific performance of the July 2, 1973 assignment by Emerald to plaintiff.

The provisions of Paragraph “i” of the Joint Operating Agreement, quoted above from Paragraph 16 of plaintiff’s supplemental petition, would give plaintiff, if he could become a party to that agreement, the right to participate in production from all leases covered thereby. This is the particular clause of which plaintiff seeks specific performance and to which defendants strenuously object.

The district court, in sustaining the exceptions of no cause or right of action, held that Scroggins had failed to allege written contracts by which he is entitled to sign the joint operating agreement and thereby acquire the lease interests. The court cites Hayes v. Muller, 245 La. 356, 158 So.2d 191 (La.1963). In Hayes, plaintiffs sought to recover profits derived from the purchase and sale of oil and gas leases under an oral agreement of joint venture which was never reduced to writing. The Supreme Court, on rehearing, held that an agreement affecting mineral leases could not be proved by parol evidence. Thus, plaintiffs’ petition, which failed to show a written contract, did not state a cause of action.

Although both may be raised by the peremptory exception, there is no combined exception of “no cause or right of action.” Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977). However, since the district court, in its formal judgment, sustained defendant’s exception of no cause of action, we will treat the instant case as before us only on the exception of no cause of action. LSA-C.C.P. Article 927(4).

The peremptory exception of no cause of action tests the legal sufficiency of plaintiff’s petition and questions whether the law affords plaintiff any remedy whatsoever under the allegations of his petition. The exception is triable solely on the face of the petition and any annexed documents or exhibits. All well-pleaded allegations are accepted as true, and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975).

Plaintiff contends the district court erred in applying the rule in Hayes v. Muller, supra, to the facts of the present case. He urges that, unlike Hayes the pertinent agreements herein involved were reduced to writing. Thus, plaintiff argues there is no need to resort to parol evidence to prove his rights to acquire an interest in the mineral leases involved.

Mineral rights, including mineral leases, are classified under the Mineral Code as incorporeal immovables and are subject to the Civil Code articles respecting immovable property. LSA-R.S. 31:2, 16 and 18. As such, ownership of a mineral lease or an interest therein cannot be established by parol evidence. It must be evidenced by a written contract. LSA-C.C. Articles 2275, 2276; Little v. Haik, 246 La. 121, 163 So.2d 558 (La.1964). In the absence of such written agreements, plaintiff is also precluded from recovering damages for the alleged breach thereof. Slay v. Smith, 368 So.2d 1144 (La.App. 3rd Cir. 1979); Davidson v. Midstates Oil Corporation, 211 La. 882, 31 So.2d 7 (1947); H. A. Bauman, Inc. v. Tilly, 185 So. 504 (La.App.2d Cir. 1938); Hayes v. Muller, supra.

In light of the above stated principles, plaintiff’s petition, together with the annexed documents, must alone establish his right to become a party to the joint operating agreement and participate in all production thereunder, or, in the alternative, to sue for damages. Our consideration of plaintiff’s petition and the attached documents convinces us that plaintiff has failed to state a cause of action for either remedy.

Plaintiff’s claim for specific performance or damages rests primarily on two basic agreements to which he is not a party. The first is the agreement dated June 6, 1973 entered into between Emerald and Hawkins. Under this agreement, Hawkins was to receive 4% of 8/8ths overriding royalty interest on leases to be acquired by Emerald from the Bayou Bouillion Corporation and Lignum Oil Company, with an option to convert to a working interest on payout. In exchange, Hawkins agreed to release his rights held under his original leases from Lignum and Bayou Bouillion. These leases were subsequently acquired by Emerald on June 7, 1973. It is the June 6 agreement which contains the crucial provision granting Hawkins the right, after payout, to convert his overriding royalty to a working interest in the leases, and “to execute the same joint operating agreement as that executed by the other working interests participants.” Hawkins is not a party to this litigation.

Although plaintiff admittedly was not a party to the June 6 agreement, he contends that by a subsequent letter-agreement between Emerald and Hawkins, dated July 16, 1973, he, in effect, became a party to the June 6 agreement. The July 16 agreement contains the following reference to plaintiff:

“You and we executed letter agreement dated June 6, 1973, wherein we agreed to assign to you 4% of 8/8ths overriding royalty with a conversion factor. Since this date you have agreed for us to assign Guy Scroggins l/8th of your Interest, which has been done under date of July 2, 1973. In return, Scroggins is to execute the partial release covering the acreage in Section 37, which Partial Release is executed by you to Bayou Bouillon Corporation and you to Lignum Oil Company.”

This portion of the July 16 agreement, in our opinion, appears to be nothing more than a confirmation of previous agreements between Hawkins, Scroggins and Emerald. We do not read this agreement as granting plaintiff any greater rights than those he already had under the July 2 contract, nor as creating any new privity of contract between plaintiff and Emerald. The only contract existing between plaintiff and Emerald is the July 2 assignment. Under this contract, plaintiff was assigned an overriding royalty of l/8th of 4% of all oil and gas produced under the described leases. Scroggins was also granted the right under certain conditions to convert his overriding royalty to a corresponding portion of the leasehold interests in the leases described. However, nowhere in this agreement is there a provision granting plaintiff the right to become a party to any operating agreement signed by Emerald or by any other party.

We are further supported in our finding by the fact that neither Dow nor Cox were parties to the June 6 agreement, nor was Hawkins a party to the August, 1973 joint operating agreement, Paragraph (I) of which is the clause upon which plaintiff relies for his demand for specific performance. It is doubtful whether even Hawkins could assert any right against Cox or Dow, since no privity of contract exists between these parties and Hawkins. But, that issue is not before us, since Hawkins is not a party to this suit.

In conclusion, plaintiff has failed to allege written agreements which entitle him to the relief he seeks. Accordingly, the exceptions of no cause of action were properly sustained by the trial court.

For the reasons assigned, the judgment appealed is affirmed. All costs of appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Lynn DUNCAN, Plaintiff-Appellant, v. ROCKWOOD INSURANCE COMPANY, Defendant-Appellee.
    No. 8342.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff-appellant.
    W. Miguel Swanwick, Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

Lynn Duncan (appellant) instituted this workmen’s compensation action against the Roekwood Insurance Company (appellee), which was the workmen’s compensation insurer of the State of Louisiana, Department of Transportation and Development, appellant’s employer at the time of his injury.

The trial court rendered judgment in favor of appellant awarding workmen’s compensation benefits, but denying plaintiff’s claim for penalties and attorney’s fees.

The sole issue on appeal is whether plaintiff-appellant is entitled to recover penalties and attorney’s fees.

Appellant contends that appellee acted in an arbitrary and capricious manner when it failed to pay the amounts claimed by appellant, which he asserts were clearly due him under the workmen’s compensation law. Essentially, the dispute between the parties centered around the method of computing the amount of benefits to which appellant was entitled.

Appellant’s position was that he was entitled to payment of workmen’s compensation benefits for 125 weeks at the minimum rate of $43.00 per week. Appellee, on the other hand, felt that appellant was entitled to $141.00 per week for a period of 18 weeks. Thus, appellant was of the opinion that he was entitled to a total award of $5,375.00, while appellee set his recovery at $2,538.00.

Appellee sent appellant a check for $2,538.00, but refused to pay him any more than that. The trial court eventually determined that under the relevant statutes and jurisprudence appellant was entitled to an award of $5,375.00 and no issue is raised regarding that portion of the judgment.

LSA-R.S. 22:658 provides, in pertinent part:

“§ 658. Payment of claims, policies other than life and health and accident; penalties
All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount.”

The medical evidence is very simple and uncomplicated. While in the course and scope of his employment as stipulated to between the parties, on April 3, 1979, plaintiff sustained an accidental injury to his left ankle when he slipped and fell. Immediately following the accident, he was taken to the Baton Rouge General Hospital and treated by Dr. Herbert K. Plauche, a specialist in the field of orthopedic surgery. As a result of the accident and resulting injury, plaintiff was required to keep his ankle wrapped with an Ace bandage, soak his ankle periodically and use crutches to walk for approximately 3V2 weeks. Even so, plaintiff continued to work for his employer and was paid his full salary, but he has continued to have problems with his ankle.

Dr. Plauche is the only physician that plaintiff saw, so therefore there is no real conflict in the medical evidence. The reports of Dr. Plauche, the first dated September 13, 1979, and the second dated April 29, 1980, were introduced into evidence in lieu of his appearing and testifying at trial. Dr. Plauche’s report of September 13, 1979 stated that he anticipated that appellant “should have an uneventful recovery and subsequently suffer no permanent disability as a result of his injury”. Nevertheless, plaintiff filed suit for workmen’s compensation benefits alleging that he continued to have problems with his left ankle. On April 29, 1980, approximately one month after suit had been filed against the appel-lee, Dr. Plauche filed another report in which he said that in his opinion appellant suffered a 10% permanent physical impairment and loss of physical function of his left ankle. There is no other medical evidence in the record, nor is there any evidence that the defendant attempted to obtain any other medical evidence. It was therefore undisputed that certainly as of April 29, 1980, defendant-appellee was aware of the permanent physical impairment and loss of physical function diagnosed by Dr. Plauche.

The trial judge found as a matter of fact that the appellee-insurer was not arbitrary and capricious in making an offer to settle of $2,538.00 (for which it tendered its check to plaintiff, which was refused), based on the defendant’s computation of plaintiff’s entitlement to be $141.00 per week for a period of 18 weeks.

We are of the opinion that the trial court correctly found that plaintiff was entitled to 10% of wages for a period of 125 weeks under LSA-R.S. 23:1221(4)(p) and that inasmuch as the 10% of wages was less than the minimum workmen’s compensation benefits payable, $43.00, that plaintiff was entitled to the amount of $5,375.00. Hamilton v. Georgia Pacific Corporation, 344 So.2d 400 (La.App. 1 Cir. 1977); Clarius v. Fogleman Truck Lines, Inc., 367 So.2d 1264 (La.App. 3 Cir. 1979).

We disagree with the trial court, however, in its refusal to award penalties and attorney’s fees. Any uncertainties about the interpretation of the statute that the defendant-appellee may have had were certainly resolved, in our opinion, by Hamilton v. Georgia Pacific, supra; Clarius v. Fogleman Truck Lines, Inc., supra, and cases cited therein. Additionally, however, and even if we found, as the trial court did, that the defendant-appellee was not arbitrary and capricious in offering less than that which was ultimately awarded, we note the recent Louisiana Supreme Court decision of Patton v. Silvey Companies, 395 So.2d 722 (La.1981).

In Patton, a question arose as to the arbitrariness or caprieiousness of the defendant-insurer in terminating compensation benefits to the plaintiff, based on a medical report indicating that plaintiff could return to work within a few weeks with no disability. The Supreme Court stated that:

“Inasmuch as the statute allows the assessment of attorney’s fees if the failure to pay is arbitrary, capricious, or without probable cause, we conclude that the fees were properly allowed.”

Patton further said:

“There is nowhere in the jurisprudence authority for an employer to rely on a treating physician’s prognosis, by its very nature an equivocal statement of the claimant’s future condition. The unreliability of prognostication should be especially evident where, as in the instant case, the report is rendered so far in advance of the expected date of recovery.”

In the case at bar, not only did the insurer rely on the treating physician’s prognosis, but it also simply disregarded the statute involved, and the jurisprudence interpreting the statute. Therefore, we are of the opinion that, as the Supreme Court found in Patton, supra, the insurer-appellee in this case was unreasonable, and had no probable cause for its failure to pay the plaintiff the amount of $5,375.00. Accordingly, we reverse the judgment of the trial court in its denial of attorney’s fees and penalties.

For the reasons above stated, IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Lynn Duncan, and against Rock-wood Insurance Company, for attorney’s fees in the amount of $2,500.00, and for 12% penalties on the amount of $2,837.00, the difference between the amount paid or tendered and the amount found to be due; in all other respects, the judgment of the trial court is affirmed.

All costs of this appeal are taxed against Rockwood Insurance Company, defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: DOMENGEAUX, Judge.

text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant-Appellee, v. ST. LANDRY PARISH POLICE JURY, et al., Defendant-Appellee-Appellant.
    No. 8459.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Fusilier, Pucheu, Soileau & Coreil, C. Brent Coreil, Ville Platte, Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for plaintiff-appellee-appellant.
    Morgan J. Goudeau, III by I. Jackson Burson, Jr., Eunice, for defendant-appellant-appellee.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

Plaintiff-appellee, Oscar Sylvester, Jr. moves to dismiss the appeal of the defendant-appellant, St. Landry Parish Police Jury, contending that the trial court ruling is a nonappealable interlocutory judgment. We dismiss the appeal.

The plaintiff is the owner of a tract of land in the northwest corner of St. Landry Parish. The only access to the tract is a gravel road known as the Oscar Sylvester Road running northeasterly from Louisiana Hwy. 29. On April 2, 1979, the police jury passed a resolution abandoning the Oscar Sylvester Road.

The plaintiff filed suit seeking a declaratory judgment declaring the resolution to be null and void and the road to be a public road. Also made a defendant was Milbert St. Amand, the owner of the land between Louisiana Highway 29 and the plaintiff’s land through which the Oscar Sylvester Road runs. Milbert St. Amand granted the plaintiff a right of passage over the road for an annual consideration of $2,500.00. By stipulation of the two parties, a judgment was rendered encompassing the terms of their agreement.

Milbert St. Amand filed a peremptory exception of res judicata based upon the stipulated judgment and it was sustained by the trial court. Subsequently, the police jury filed a peremptory exception of no cause of action. The trial court overruled the police jury’s exception of no cause of action. From this judgment, the police jury has taken this appeal.

An appeal may be taken from a final judgment or an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. 1841.

A judgment overruling a peremptory exception of no cause of action is a preliminary matter and does not determine the merits of the case. Thus, for a such a judgment to be appealable, the appellant must show it will cause irreparable injury. Dietz v. Eunice-Crowley Oil Co., 193 So.2d 94 (La.App. 3rd Cir. 1966); Lounsberry v. Hoffpauir, 199 So.2d 553 (La.App. 3rd Cir. 1967); Mauterer v. Tilley, 328 So.2d 755 (La.App. 1st Cir. 1976), writ denied, 365 So.2d 245 (La.1978).

The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter on an appeal following the determination of the merits. Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir. 1978); Hunter v. Health & Social & Rehabilitation, 372 So.2d 577 (La.App. 2nd Cir. 1979); Cheramie v. Vegas, 385 So.2d 453 (La.App. 1st Cir. 1980); Royer v. St. Paul Fire & Marine Ins. Co., 393 So.2d 936 (La.App. 3rd Cir. 1981). There is no showing of irreparable injury in this case.

For the above and foregoing reasons, the appeal is dismissed at the appellant’s cost.

APPEAL DISMISSED.

      . The plaintiff, Oscar Sylvester, Jr., appealed the judgment of the trial court sustaining defendant’s peremptory exception of res judicata. That appeal is not affected by the dismissal of the appeal taken by the St. Landry Parish Police Jury.


text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant-Appellee, v. The ST. LANDRY PARISH POLICE JURY, Defendant-Appellee-Appellant.
    No. 8458.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Fusilier, Pueheu, Soileau & Coreil, C. Brent Coreil, Ville Platte, Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for plaintiff-appellee-appellant.
    Morgan J. Goudeau, III by I. Jackson Burson, Jr., Eunice, for defendant-appellant-appellee.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

The issue in this case is the same as that in Sylvester v. St. Landry Parish Police Jury, et al., 401 So.2d 688 (La.App. 3rd Cir. 1981), a companion appeal rendered by us on this date. For the reasons stated in the companion appeal, the appeal of the St. Landry Parish Police Jury is dismissed at its cost.

APPEAL DISMISSED.

      . The plaintiff, Oscar Sylvester, Jr., appealed the judgment of the trial court sustaining defendant’s peremptory exception of res judicata. That appeal is not affected by the dismissal of the appeal taken by the St. Landry Parish Police Jury.


author: STOKER, Judge.

text:
    Clarence SEALS, Individually and for the Minor, Bobby Ray Seals, Plaintiff-Appellant, v. L. M. LEWIS OIL COMPANY, et al., Defendant-Appellee.
    No. 8292.
    Court of Appeal of Louisiana, Third Circuit.
    July 1, 1981.
    Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Kramer & Laird, Bernard Kramer, Prov-osty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

Appellant Clarence Seals filed this suit, a personal injury action, individually and on behalf of his minor son, Bobby Ray Seals. Numerous parties were named as defendants including Jules James. Jules James filed an exception of no cause of action. The trial judge who heard the exception on June 5, 1980, held the exception was good. The judge through a minute entry for June 5, 1980, rendered judgment sustaining the exception and allowed plaintiff ten days to amend the pleadings to state a cause of action. A formal judgment to that same effect was signed on June 12,1980, in which it was stated that the ten days granted for amendment would run from the date of signing of the judgment, i. e., June 12,1980. Neither the minute entry nor the formal judgment provide for automatic dismissal as a consequence of failure to file an amendment of the pleadings within the ten day time limit.

Plaintiff failed to file an amended petition within the ten days allowed. Plaintiff filed a supplemental and amending petition on July 7, 1980, which purports to set forth a cause of action. On October 17, 1980, Jules James filed a rule to show cause why the claims against him should not be dismissed with prejudice at plaintiff’s costs. The rule (referred to as a motion to dismiss under which title it was filed) was heard on December 1, 1980. The trial judge who heard the matter dismissed defendant-ap-pellee, Jules James, on the grounds of res judicata and no cause of action. The dismissal was with prejudice. A formal judgment of dismissal with prejudice was signed on December 3, 1980. Plaintiff has appealed from this judgment.

The trial court did not assign written reasons for its judgment of dismissal. The supplemental and amending petition in question here contains a signed order of court dated July 8, 1980, allowing the supplemental and amending petition to be filed. As noted the rule to show cause why the supplemental and amending petition should not be dismissed was not filed until October 17, 1980.

In our opinion the trial court erred in dismissing with prejudice appellant’s action against Jules James for failure to comply with the ruling which granted plaintiff (the appellant before us) ten days to amend to state a cause of action. See the discussions in Interstate Electric Company v. Interstate Electric Company of Shreveport, Inc., 6 So.2d 39 (La.App. 2nd Cir. 1942); Roby v. Leonard, 209 So.2d 182 (La.App. 1st Cir. 1968) and Spencer v. Burglass, 288 So.2d 68 (La.App. 4th Cir. 1974).

For the foregoing reasons the judgment of the trial court dismissing this action as to defendant-appellee, Jules James, is reversed and the case is remand to the trial court for further proceedings consistent with the views expressed above.

REVERSED AND REMANDED.

      . We express no opinion as to whether either the original or the supplemental and amending petitions set forth a cause of action against Jules James.


author: SWIFT, Judge.

text:
    Judy Ann KAHN, Defendant-in-rule-Appellee, v. Michael Frank SPENCER, Plaintiff-in-rule-Appellant.
    No. 8465.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1981.

      Thomas J. Toranto, Jr., New Orleans, for plaintiff-in-rule-appellant.
    Michael H. Colvin, Lafayette, for defendant-in-rule-appellee.
    Before CUTRER, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

The appellant, Michael Frank Spencer, has devolutively appealed a judgment of the trial court denying his rule for a change of custody and the elimination of child support. We dismiss the appeal ex proprio motu as being untimely taken.

The judgment of the trial court was signed on February 17, 1981. On February 18, 1981, notice of judgment was mailed to all parties. No application for a new trial was filed. The appeal was perfected on April 7, 1981, more than thirty days after the expiration of the delay for applying for a new trial.

The delay for taking an appeal from a judgment modifying or terminating custody or child support is 30 days. LSA-C.C.P. Art. 3943; Malone v. Malone, 282 So.2d 119 (La.1973); Donaldson v. Donaldson, 389 So.2d 1375 (La.App. 3rd Cir. 1980). The 30 day delay begins to run after expiration of the delays for applying for a new trial. LSA-C.C.P. Arts. 1974, 2087(1), 3942, 3943. Since the plaintiff did not perfect his appeal within such period it must be dismissed.

For the above and foregoing reasons, this appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: CUTRER, Judge.

text:
    Adrian GAUTHIER, Plaintiff-Appellant, v. HELMERICH & PAYNE DRILLING CO. and Hartford Accident & Indemnity Company, Defendants-Appellees.
    No. 8266.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1981.

      John T. Bennett, Marksville, for plaintiff-appellant.
    Trimble, Randow, Percy, Smith, Wilson & Foote, James T. Trimble, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, Adrian Gauthier, sued his employer, Helmerich & Payne Drilling Company (Helmerich) and its insurer, Hartford Accident & Indemnity Company (Hartford), for workmen’s compensation benefits. The trial court found the plaintiff to be temporarily totally disabled from the date of his injury, March 29, 1980, through October 8, 1980, but rejected his demands for penalties and attorney’s fees. Plaintiff appealed seeking total permanent disability and attorney’s fees. Hartford answered the appeal contending the trial court erred in concluding that the plaintiff was disabled beyond August 13, 1980.

The issues on appeal are: (1) Whether the plaintiff is entitled to temporary total disability or is entitled to permanent total disability; (2) whether the trial court erred in rejecting the plaintiff’s demands for penalties and attorney’s fees; (3) whether the trial court erred in refusing to reopen the case for additional medical evidence; and (4) whether the trial court erred in refusing to grant the plaintiff a new trial.

On March 29, 1980, plaintiff was injured while engaged in a course and scope of his employment with Helmerich when he slipped, and fell and was struck on the head by a board. Plaintiff was wearing a hard hat at the time and, although he was “dazed,” he was not rendered unconscious by the accident. He continued to work for his employer until April 1, 1980.

On April 2, 1980, plaintiff was examined by his family physician, Dr. Edmond J. Kal-ifey. Dr. Kalifey testified that plaintiff’s x-rays were normal but he diagnosed a cervical strain. He examined plaintiff again on April 7, 1980, which examination revealed no change and, at plaintiff’s father’s request, referred him to Dr. C. W. Lowrey, an orthopaedic surgeon in Alexandria. Dr. Kalifey has not examined plaintiff since April 7, 1980.

Dr. Lowrey and his associate, Dr. Weiss, examined plaintiff on three occasions, April 15, May 13, and June 4, 1980. Dr. Lowrey diagnosed a “probable cervical and lumbo-sacral strain.” Plaintiff testified that Dr. Lowrey discharged him because he did all he could do for him.

Plaintiff was also examined by Dr. Homer D. Kirgis, a neurosurgeon in New Orleans, Louisiana, on April 30, 1980. Dr. Kir-gis’ report reveals that plaintiff had suffered a mild cerebral concussion but had recovered by the time of the examination and that he suffered a straining injury of the neck and back. Dr. Kirgis was of the opinion that “his symptoms will clear in the relatively near future.”

Subsequently, on the advice of his brother-in-law, plaintiff was examined by Dr. John M. Patton, a neurosurgeon in Alexandria, Louisiana. Dr. Patton’s first examination on June 13, 1980, revealed no neurological abnormalities. However, because plaintiff complained of pain, Dr. Patton had a C-T scan conducted on June 18, 1980. The outcome of this test was essentially normal although it did reveal the possibility of an arteriovenous malformation (AVM), which is a congenital anomaly of the blood vessel and not trauma related. In order to rule out the possibility of an AVM, Dr. Patton had plaintiff undergo a four vessel cerebral angiogram on July 11, 1980; the results were completely normal.

On July 29, 1980, Dr. Patton’s office was contacted by Hartford and, through his secretary, informed Hartford that plaintiff could return to work. This was confirmed by a letter from Dr. Patton to Hartford on August 25, 1980. Dr. Patton confirmed his earlier opinion the last time he examined plaintiff on September 20, 1980.

Prior to trial, plaintiff moved to be examined by a court-appointed physician. The motion was granted and the court appointed Dr. S. R. Abramson, a general practitioner, who examined plaintiff on October 8, 1980, the day before the trial of this case. Dr. Abramson testified that there was no serious pathological findings, that plaintiff experienced no pain during the examination and could return to work.

Plaintiff testified that strenuous activity produces headaches and pain in his arm and neck. He cannot mow his grass or work in his garden. This was harmonious with the testimony of Leroy Ardoin, plaintiff’s brother-in-law.

The trial court concluded that plaintiff was totally disabled from the date of the accident through October 8, 1980, the day Dr. Abramson examined him. Plaintiff contends that the trial court erred in not finding him to be disabled after October 8, 1980.

It is well settled that a person is totally disabled if he would be subjected to substantial pain on returning to work. However, the employee must prove such disabling pain to a legal certainty and fair preponderance of the evidence. Whether or not he has carried this burden must be determined from the totality of the evidence, including both medical and lay testimony. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Guidry v. Ford, Bacon & Davis Const. Corp., 376 So.2d 352 (La.App. 3rd Cir. 1979); Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3rd Cir. 1973).

In the instant case plaintiff was examined by two general practitioners, two orthopaedic surgeons and two neurosurgeons. None of these physicians could find any basis for the plaintiff’s complaints after July 29, 1980. Dr. Patton, a neurosurgeon, saw the plaintiff five times and conducted extensive tests including x-rays, C-T scan and a angiogram. He concluded that plaintiff could return to work at least by July 29, 1980, without enduring substantial pain. Dr. Abramson, the court appointed physician, confirmed Dr. Patton’s diagnosis upon his examination of October 8, 1980. There is neither medical evidence nor convincing lay testimony that the plaintiff could not return to work after July 29, 1980.

Although we are mindful that the determination of disability must be made from the totality of the evidence, including both medical and lay, great weight, almost to the point of exclusion of other evidence, should be given to uneontradicted medical evidence. Tantillo v. Liberty Mutual Insurance Company, supra; Johnson v. Fireman’s Fund Ins. Co., 389 So.2d 1139 (La. App. 3rd Cir. 1980).

While we are reluctant to reverse the trial judge on this factual issue it is our duty to do so when he is clearly wrong. The appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We hold that the trial court was manifestly in error in concluding that plaintiff was disabled beyond the time Hartford terminated the compensation payments on August 13, 1980. Accordingly, the judgment will be amended so as to award workmen’s compensation benefits only up to that date.

The plaintiff contends that he is entitled to statutory penalties and attorney’s fees because of Hartford’s allegedly arbitrary and capricious refusal to pay travel expenses of the plaintiff. We disagree. The record reveals that Hartford made two payments of $46.60 and $13.60 as travel expenses. Although plaintiff’s attorney sent a letter to Hartford requesting payment of travel expenses at the rate of sixteen cents per mile, there is no evidence that the plaintiff provided Hartford with information advising them of the number of trips made or miles traveled. Under these circumstances, we cannot say that the trial court was clearly wrong in holding that Hartford’s failure to pay travel expenses was arbitrary and capricious.

The plaintiff also contends the trial court erred in refusing to reopen the case to allow the testimony of two physicians, who examined the plaintiff after the trial, to be admitted or to grant a new trial. We disagree.

The decision whether to reopen a case for production of additional evidence after all parties have rested is within the sound discretion of the trial court and, unless there has been a showing of abuse of discretion, the trial court’s decision will not be disturbed on appeal. Rawls v. Damare, 377 So.2d 1376 (La.App. 4th Cir. 1979), writ ref’d 380 So.2d 72 (La.1980); Roman v. Broussard, 255 So.2d 135 (La.App. 3rd Cir. 1971). We find no abuse of discretion by the trial court in the instant case. Likewise, the trial court was not in error in refusing to grant the plaintiff’s motion for new trial. Plaintiff has already been examined by six physicians. The plaintiff cannot say that he did not have the opportunity to obtain the medical testimony he desired before trial. See: Skipworth v. McElroy Metal Mill, Inc., 353 So.2d 1069 (La.App. 2nd Cir. 1977).

For the above and foregoing reasons, the judgment of the trial court is amended to award the plaintiff, Adrian Gauthier, benefits for temporary total disability beginning March 29, 1980 through August 13, 1980. In all other respects the judgment of the trial court is affirmed. The costs of court in the trial court and of this appeal are taxed against the plaintiff-appellant, Adrian Gauthier.

AMENDED AND AFFIRMED.

      . Although we find that plaintiff was not disabled beyond July 29, 1980, we are granting benefits through August 13, 1980 because Hartford, by answer to the plaintiffs appeal, only contests that part of the trial court’s decision awarding benefits after that date.