author: DOUCET, Judge. DOMENGEAUX, Judge,

text:
    In the Matter of the SUCCESSION OF Robert LAYSSARD.
    No. 8560.
    Court of Appeal of Louisiana, Third Circuit.
    March 3, 1982.
    Rehearing Denied April 29, 1982.

      Louis Berry and P. Spencer Torry, Alexandria, and Vanue B. Lacour, Baton Rouge, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Robert G. Nida and Charles S. Weems, III, Carrol S. Hunter, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Plaintiffs Rosa Lacour, Emma Layssard Thomas, Amos Layssard and Lucy Layssard Smith have filed suit claiming to be the illegitimate children of Robert Layssard and Cornelius Jackson seeking to annul a judgment of possession placing the legitimate heirs, brothers and sisters, into Lays-sard’s succession. Defendant-appellees filed a motion for summary judgment. From a judgment granting the motion for summary judgment, the plaintiffs have perfected this appeal. We affirm.

The sole issue on appeal is whether or not the trial court erred when it sustained a Motion for Summary Judgment on the grounds that there is no genuine issue of fact and that Succession of Sidney Brown, 388 So.2d 1151 (1980) dictates prospective application allowing illegitimates the right to invalidate judgments of possession rendered prior to Brown, supra.

Robert Layssard died intestate at his domicile in Rapides Parish on September 17, 1966. Soon thereafter, in Probate Proceedings Number 12,497, styled Succession of Robert Layssard versus Recognition and Possession, a petition was filed by Martha Pierce born Layssard, Lucy Layssard West, Peter Layssard, Martha Lou Harien, Walter R. Layssard, Charles R. Layssard, Ruby Layssard DePas and Leo Layssard. They alleged that they, his sisters, brothers, nieces and nephews, were the sole and only heirs of the decedent and as such were entitled to be placed and put in possession of all the property left by the decedent. The defendants were recognized as his collateral heirs and sent into possession of the property comprising the decedent’s succession by Judgment of Possession rendered February 2, 1967.

The plaintiff-appellants filed suit seeking a judgment cancelling and annulling the judgment of possession rendered in the succession of Robert Layssard. Plaintiffs further sought a judgment recognizing them as heirs of Robert Layssard and sending them into possession of his succession. Defendant-appellees moved for summary judgment claiming that the declaration of unconstitutionality of Article 919 of the Louisiana Civil Code in Succession of Sidney Brown, 388 So.2d 1151 (La.1980) is to be applied prospectively only. The trial court relying on Brown, supra, held that the decision should be applied prospectively from the date of the decision, September 3, 1980, thereby granting the Motion for Summary Judgment. Plaintiff-appellants have appealed from the judgment dismissing their suit.

Civil Code Article 919, as amended by Act 607, Section 1, of 1979, provides as follows:

“Art. 919. Illegitimate children of father
Art. 919. Illegitimate children are called to the inheritance of their father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.
In all other cases, they can only bring an action against their father or his heirs for alimony, the amount of which shall be determined, as is directed in the Title: Of Father and Child.
(Amended by Acts 1979, No. 607; § 1.)”

This article, however, was expressly declared unconstitutional by the Louisiana Supreme Court in the case of Succession of Brown, 388 So.2d 1151 (La.1980) because it embodied an arbitrary, capricious and unreasonable distinction between illegitimates and all other relations of a deceased contrary to the Fourteenth Amendment to the U. S. Constitution.

The Supreme Court did not address itself to the issue of the retroactive application of its declaration of the unconstitutionality of LSA-C.C. Art. 919 in Succession of Brown, supra. However in the case of Lovell v. Lovell, 378 So.2d 418 (La.1979) the Supreme Court addressed itself to the issue of whether a decision which declares an article of the Louisiana Civil Code to be unconstitutional should be given retroactive effect. The Supreme Court stated the following at pages 421-422:

In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

In light of these criteria the Fourth Circuit in Succession of Ross, 397 So.2d 830 (4th Cir. 1981) held that the declaration of the unconstitutionality of LSA-C.C. Art. 919 in Succession of Brown, supra, should only be applied prospectively from the September 3, 1980 decision.

Our examination of these factors leads us to the same conclusion that Succession of Brown, supra, should be applied prospectively from the September 3, 1980 decision. Substantial inequity will result if all prior judgments of possession which relied on the substantive law of LSA-C.C. Art. 919 were declared invalid, and such a holding would engender new litigation in each case where there had been such a justified reliance. As noted in Lovell, where such a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of non-retroactivity. Succession of Ross, 397 So.2d 830 (4th Cir. 1981), Cipriano v. City of Houston, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

It should be noted that appellants attempt to distinguish Brown and Ross by arguing that because they have based their allegation of unconstitutionality on the Fourteenth Amendment to the U. S. Constitution, without reliance on La.Const. Art. 1, § 3, the Brown ruling must be applied retroactively. The same argument was advanced by the petitioner in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) wherein petitioner argued that the Supreme Court decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) was necessarily entitled to retrospective operation. In rejecting that argument, the Court stated at 381 U.S. 618, 85 S.Ct. 1731: “However, we believe that the Constitution neither prohibits nor requires retrospective effect.” Furthermore, in the recent decision of Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979), aff’d. 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) the Fifth Circuit Court of Appeals declared Article 2404 of the Louisiana Civil Code unconstitutional under the 14th Amendment. The Court made the following observation:

We apply our decision today prospectively only, because a holding of retroactive invalidity of article 2404 would create a substantial hardship with respect to property rights and obligations within the State of Louisiana. The Supreme Court has said:
The actual existence of a statute, prior to [a determination of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.

The Court concluded by stating:

Since our decision could produce substantial inequitable results if applied retroactively, we avoid that “injustice or hardship” through a holding of nonretroactivity. Cipriano v. City of Houston, 395 U.S. 701, 706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145 [148], 77 L.Ed. 360 (1932).

Therefore, in accordance with the. aforementioned jurisprudence we hold that the declaration of the unconstitutionality of LSA-C.C. Art. 919 in Succession of Brown, supra, should only be applied prospectively from the September 3, 1980 decision.

Accordingly, the trial court did not err in the granting of the Motion for Summary Judgment as no genuine issue of fact is present.

For the reasons assigned, the decision of the District Court is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I subscribe to the dissenting opinions in Succession of Brown, and feel that there is no mandate, state or federal, which makes it necessary to declare C.C. Art. 919 unconstitutional. However a majority of the Louisiana Supreme Court has spoken, and we have, from a realistic standpoint, no choice but to adhere to its pronouncements. Such being the case, I agree with the majority opinion here which at least diminishes the trauma of the Succession of Brown case, and applies its results prospectively.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Kenneth J. BROUILLETTE v. Lawrence WARD and United Services Automobile Association.
    No. 12371.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Denied April 30, 1982.

      Frank S. Bruno of Bruno, Bruno & Blouin, New Orleans, for Kenneth J. Brouil-lette, plaintiff-appellee.
    Timothy G. Schafer of Schafer & Schafer, New Orleans, for Lawrence Ward & United Services Automobile Ass’n, defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The defendants appeal a jury verdict awarding the plaintiff $55,000.00 for injuries suffered in an automobile accident. The defendants stipulated to fault but questioned the extent of the damages that the plaintiff suffered. We affirm.

On May 20, 1978, Kenneth J. Brouillette was driving his vehicle down Veterans Boulevard when a car being driven by Lawrence Ward pulled out from Aurora Drive hitting Brouillette’s vehicle. As a result of the accident, Brouillette was taken to East Jefferson Hospital where he received treatment for injuries sustained to his head, shoulder, neck and back. Brouillette sued Ward and his insurer, United Services Automobile Association, claiming that due to Ward’s negligence, he has been unable to work and that as of 1980, he was still suffering from the pain in his neck, shoulder and back. In addition, Brouillette argued that he had been suffering from depression and anxiety. At trial, expert witnesses for both sides were presented to testify on Brouillette’s mentality, physical condition and his ability to work in the future.

We note that the defendants’ chief concern, having stipulated to fault, was the amount of injuries that Brouillette sustained. The basis for the defendants’ arguments related to an accident which took place in September of 1977. In that accident Brouillette was sleeping in his bed when a car ran into his house knocking him from his bed causing injuries to his back and neck. Defendants argue that these old injuries are the bases for Brouillette’s present condition, that they should not be held accountable for those injuries not causally related to the second accident or for those injuries which are just re-aggravations of the first. Their appeal assigns error in giving improper jury charges and in failing to give special charges on the relationships between the two accidents and causations of injury, and error in awarding excessive quantum.

The charge argued improper is one apparently based on Reck v. Stevens, 373 So.2d 498 (La.1979) at p. 502:

“Now, it is well established in our law that a Defendant takes his victim as he finds him in cases where a pre-existing condition is present, the Defendant is responsible for damages — for the consequences of his act although the damage so caused is greater because of a prior condition of the victim which is activated by the accident.
If you believe that a pre-existing condition prior to the accident was activated or aggravated by the accident in question, you must award the Plaintiff damages for these injuries.”

Appellants argue this charge needs further explanation and that their special charges would give a proper explanation and statement of the law. We believe the charge given to be a correct one. We further point out that other portions of the judge’s charges basically covered all of appellants’ complaints. The judge pointed out in several instances that the compensable injuries were those caused by this defendant’s fault and that plaintiff was required to prove this as an essential element of his case. Additionally, in the computation of damages the judge pointed out at least twice that the jury was to consider plaintiff’s condition before the injury and accident and what it was at trial. We conclude that appellants’ charges, these as well as others, were adequately covered by the trial judge.

We now consider the amount awarded.

The medical testimony offered reflects that the patient is suffering from pain in the neck and upper back areas. A psychiatrist testified that the patient would return to normal sometime in the future but that due to his mental condition, he would be without gainful employment indefinitely.

It is our belief that the plaintiff was still experiencing some residual pain due to the first accident but did sustain some physical and mental injuries as a result of the second accident. At trial, the jury was asked whether the plaintiff’s injuries were the proximate result of the negligence of the defendant, to which they responded in the affirmative. When assessing the amount of money necessary to compensate the plaintiff for the damages incurred, the jury determined that $55,000.00 was appropriate. From the medical testimony given, we cannot say that the jury abused its discretion in awarding such a figure. Reck v. Stevens, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Although in the opinion of the court, the amount awarded appears generous, it does fall within the limits of discretion stated in C.C. Art. 1934(3).

Accordingly, we affirm the jury award given to the plaintiff in the amount of $55,000.00.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    INTERNATIONAL AMERICAN COMPANY, INC. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 12373.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    Writ Denied May 28, 1982.

      Dawn Barrios, Carl W. Cleveland & Associates, New Orleans, for plaintiff-appellee.
    Louis M. Jones, Louisiana Dept, of Justice, C. Emmett Pugh, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Plaintiff, International American Company, Inc. (hereafter IACO) brought this suit against the Louisiana State Employees’ Retirement System (hereafter LASER) for the alleged wrongful seizure and/or conversion of its assets and the unlawful use of its trademark and trade name. The trial judge rendered judgment in favor of IACO and against LASER in the amount of $21,062.71 plus $7,500.00 in attorney fees and costs of $4,316.30. LASER appealed. IACO answered the appeal. We amend the judgment of the trial court and as amended affirm it.

Campo Realty, Inc. (hereafter Campo) borrowed funds from LASER and secured same with a real and chattel mortgage on property, buildings and chattels of a motor hotel located in Jefferson Parish. At the loan closing, in addition to a chattel and real estate mortgage, Campo executed in favor of LASER an assignment of leases and management. Also a letter agreement was executed by Red Carpet Inn, Inc. in favor of LASER. In the event of a foreclosure, LASER could exercise Campo’s rights under the franchise agreement with Red Carpet Inn, Inc. Prior to the execution of the loan documents, IACO had entered into an agreement with Campo to operate the hotel under a franchise agreement. The agreement between Campo and International American Motor Inn was not recorded in the Jefferson Parish mortgage or conveyance or other public records, nor did Campo inform LASER of its existence at the time of the loan closing. After the loan became delinquent and it was apparent foreclosure proceedings were imminent, IACO informed LASER of the agreement.

The mortgage instrument by Campo to LASER contained the following provision:

“Irrespective of whether Mortgagee accelerates the maturity of all indebtedness secured hereby, or institutes foreclosure proceedings, Mortgagee at its option may have a receiver appointed by the Court to take possession of the premises and to manage, operate and conserve the value thereof and collect the rents, issues and profits thereof. Such receiver may also take possession of, and for these purposes use, any and all personal property contained in the premises and used by Mortgagor in the rental or leasing thereof or any part thereof. The right to enter and take possession of the premises and use any personal property therein, to manage, operate and conserve the same, and to collect the rents, issues and profits thereof, shall be in addition to all other rights or remedies of Mortgagee hereunder or afforded by law, and may be exercised concurrently therewith or independently thereof. After paying costs of collection and any other expenses incurred the proceeds shall be applied to the payment of the indebtedness secured hereby in such order as Mortgagee shall elect, and Mortgagee shall not be liable to account to Mortgagor for any action taken pursuant hereto other than to account for any rents actually received by Mortgagee.”

Via executiva foreclosure proceedings were instituted on December 27, 1974. LASER, in accordance with the quoted provisions, suggested the name of a receiver and he was appointed by the court to operate the hotel. The “via executiva” foreclosure and the appointment of the receiver were promptly challenged. The trial judge upheld the foreclosure and LASER’S authority to have the receiver appointed, but in accordance with LASER’S request, changed the former receiver appointing a former employee of IACO to serve as receiver. In an appeal as to the validity of the foreclosure, this court affirmed its validity. See Louisiana State Employees’ Retirement System v. Campo Realty, Inc., 327 So.2d 472 (La.App., 4th Cir. 1976). The receiver managed the hotel under the name “American International Motor Inn” until it was sold to LASER at public auction on September 15, 1976. An accounting of the stewardship was filed in the trial record. LASER acquired the hotel and chattels at the foreclosure sale and continued to operate the hotel as the International American Motor Inn until August 29, 1978 when it sold the hotel. Shortly after the seizure, IACO brought this suit claiming LASER, through its representative, i.e.,’the receiver, took possession of all of the assets of IACO, with full knowledge the assets were in no way included under or encumbered by the mortgage foreclosed on. IACO itemized the damages it sustained as a result of the wrongful seizure as follows:

(a) Liquor inventory of petitioner located at the International American Motor Inn at the time of the seizure: $ 15,000.00
(b) Pood, condiments and kitchen expendibles located at the International American Motor Inn at the time of the seizure: 8,000.00
(c) General room expendibles including toilet tissue, soap, laundry supplies, chemical cleaners, etc., of petitioner located at the International American Motor Inn at the time of the seizure: 4,000.00
(d) Office supplies, including forms, reproduction paper, stationery, advertisement literature, stamps and general office supplies of petitioner located at the International American Motor Inn at the time of the seizure: 2,000.00
(e) Advance bookings for guest rooms, banquets, meetings and weddings, booked by International American Co., Inc., located at the International American Motor Inn on December 27,1974: 350,000.00
(f) Accounts receivable of petitioner located at the International American Motor Inn on December 27,1974, more fully described as follows:
1. American Express $ 8,950.00
2. Carte Blanche 1,700.00
3. Diner’s Club 520.00
4. TWA 16.00
5. Banquets 19,325.00
6. Direct Billings 9,550.00
7. Preferred Business Accounts 10,600.00
8. Accrued guest folios for accrued and unpaid room and other charges (food and beverage) at the time of seizure 3,000.00
$ 53,661.00
(g) Wrongful use of International American Motor Inn trademark and tradename: 50,000.00
(h) Wrongful seizure, use and appropriation of occupational and liquor licenses utilized by International American Co., Inc., in the operation of the International American Motor Inn: 1,500.00
(i) Loss of good will, loss of future profit and complete destruction of the International American Co., Inc. business: 250,000.00

In his reasons for judgment, the trial judge made the following findings of fact:

“The hotel was owned by Campo Realty, Inc. (hereinafter referred to as Campo) after its design and construction by plaintiff. After construction the operation and management were performed by plaintiff under its agreement with Cam-po. Plaintiff purchased all food, liquors, and supplies. Campo owned all physical assets except for some office furniture owned by plaintiff. Plaintiff was to collect all revenues, pay all operating expenses, and keep three and one-half per cent of the gross as its fee.
Campo had mortgaged the hotel to defendant and fell into arrears which precipitated the foreclosure on December 27, 1974. The deputies assigned to inventory and seize the hotel included liquor, food and other supplies which actually belonged to plaintiff despite the fact that defendant knew that these items were the properties belonging to plaintiff (P-9) and despite plaintiff’s demands at the time of foreclosure.
Additionally, defendant invoked a receiver who ignored plaintiff’s protests and plaintiff was forced out of the operation. Although the original receiver was eventually removed by the court, a successor ran the hotel under the trademark registered to plaintiff, over plaintiff’s protests, until the hotel was sold to its present owner in August of 1978.”

Based on these findings, the trial judge awarded to IACO damages as follows:

Liquor Stock $ 4,455.68
Food Supplies 8,000.00
Room Expendables 382.00
Office Supplies 1,433.88
TOTAL $ 14,271.56

He refused to award the damages claimed by IACO for advance bookings and accounts receivable on the grounds IACO’s contract with Campo was not recorded, hence, the proprietary interest of IACO terminated when the foreclosure occurred.

Additionally, the trial judge found LASER had illegally used the trademark belonging to IACO for a period of fifty-six (56) months and accordingly awarded to IACO $500.00 per month or $28,000.00 for the trademark infringement. Also, the trial judge found that IACO was not entitled to collect the accounts receivable of $21,-062.71 belonging to Campo which it had collected and accordingly gave LASER a credit in this amount against the total damage award of $42,271.56 ($14,271.56 plus $28,000.00), leaving a balance due to IACO of $21,062.71. It also made an award of $7,500.00 in attorney fees.

In the answer to the appeal, IACO prays for an increase in the trial judge’s award to $335,211.00. In its brief, IACO contends IACO had expended efforts and funds for and therefore owned the advance bookings and the accounts receivable (actually credit card charges) for room rents and restaurant bills and should receive an award for these. He also argues that the trial judge erred in failing to award general damages.

On the appeal, LASER contends the public records doctrine is a complete bar to the plaintiff’s suit. Alternatively it contends IACO is estopped from claiming damages because of its failure to divulge the existence of the franchise agreement at the time the loan to Campo was closed, and the award of damages and attorney fees for the illegal use of the trade name and mark is contrary to 15 U.S.C. § 1117 (Part of the Lanham Act which is the federal trademark law).

Although the trial judge made an error in computing the time period (December 27, 1974 to August 21, 1978) during which the motel was operated under the name “International American Inn” as fifty-six months rather than forty-four months, after a careful review of the record we cannot conclude he committed manifest error in his findings of fact or abused his discretion in his award of damages.

As was observed by the trial judge on several occasions during the trial, the issue involved in this case is whether the State seized something it should not have seized when it took over the hotel and its operation. Since the agreement between IACO was not recorded in the public records of Jefferson Parish, the trial judge properly concluded all proprietary interest IACO had in the operation and management of the hotel terminated with the seizure. The Assignment of Leases and Management by Campo to LASER specifically provided:

“THAT upon default under the terms of said note or mortgage or of this agreement, or at any time after such default, the Assignee, its successors or assigns, at its or their option and without further consent thereto by the Assignor or any subsequent owner of said premises, may enter in and upon said mortgaged premises and take possession thereof, and collect the rents and profits thereof, and do every act and thing that such Assignor or any subsequent owners of said premises might or could do;”

Although counsel for IACO now argues otherwise, during an argument in support of an objection he stated his client’s position as follows:

“... you see, we’re not contending that we had a right to keep our agreement in effect after the date of the seizure. We concede that the State should have had a right to terminate it... ”

Thus, the issue is, did the liquor, food, office supplies, general room expendibles, advance bookings and accounts receivable belong to Campo or to IACO at the time of the seizure. Also, although the State was authorized to take over the operation of the hotel, was it authorized to operate the hotel under the trade name “International American Motor Inn”?

Under the franchise operating agreement IACO purchased all of the food, liquor and supplies and was to collect all revenues, pay all operating expenses and keep three and one-half (3'/2%) per cent of gross receipts as its fee. LASER argues that since Campo furnished the “start-up funds” for the operations, the operating inventories were the property of Campo rather than IACO. Although there may be an accounting due between Campo and IACO for “start-up funds” and/or “for fees” due under the agreement, the accounting is of no moment here because our concern is with ownership of specific assets rather than an accounting between the parties to the agreement. Although not specifically stated by the trial judge, he apparently concluded as we do that since the operating inventories were purchased by IACO the portion which remained in inventory at the time of the seizure belonged to IACO. However, the gross revenues or receipts produced in the operation from the rents or the use or sale of the operating inventories belonged to Campo or his successor rather than to IACO. Therefore, since the operating inventories owned by IACO were actually seized and utilized by LASER in the operations conducted subsequent to the seizure, the trial judge properly awarded to IACO as a measure of damage for the wrongful seizure the value of the operating inventories at the time of the seizure, Marcel v. Denton, 195 So.2d 163 (La.App., 1st Cir. 1967). Additionally, since the advance bookings and accounts receivable represented sums due for restaurant charges, room rent and other hotel services and, hence, part of the gross income stream which belonged to Campo or his successor, rather than to IACO (albeit there may be an accounting due between Campo and IACO for fees earned in producing the gross income), the trial judge properly refused to consider the value of these or any fees which may be due to IACO by Campo in computing his damage award. Dalbey v. Continental Supply Co., 165 La. 636, 115 So. 807 (1928).

LASER was informed and knew prior to the seizure that the name “International American Motor Inn” was the property of IACO. Nevertheless, from December 27, 1974 to September 15, 1976, the receiver, appointed under the seizure, operated the hotel under IACO’s trade name. Further, after LASER acquired the hotel at the September 15, 1976 public sale, it continued to operate the hotel under the same name. IACO made no effort to enjoin the use of the name. The trial judge, without specifying whether this action was unlawful by virtue of the federal trademark law, i.e., the Lanham Act, 15 U.S.C. § 1051 et seq., or as a wrongful seizure or as a conversion, concluded its use by LASER was illegal and hence made a damage award for the illegal use of the IACO trade name. Further, it awarded, without stating the basis for same, attorney fees of $7,500.00 for handling all claims.

In computing the general damage award the court considered $500.00 per month as a fair value for the use of the trade name and rejected IACO’s contention that it had been deprived of the right to open and operate a condominium type motel in Lafayette. Although it is true, as contended by IACO, that a party aggrieved by the wrongful seizure or conversion is entitled to recover general damages as well as special damages, he must nevertheless prove that he did sustain damages. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976); Marcel v. Denton, 195 So.2d 163 (La.App., 1st Cir. 1967). Here the record fails to show the wrongful seizure or use of the trade name in any way hindered, interfered with or contributed to the failure of IACO’s Lafayette project. Rather, it showed the project failed on its own accord.

LASER contends that since the trademark was registered under the federal trademark law, damages can only be awarded pursuant to 15 U.S.C. § 1117. We do not agree. The court-appointed receiver claimed the right to and did in fact operate the hotel under the trade name by virtue of the seizure. Since Campo did not own the trade name, the seizure and use of the trade name was an illegal seizure and conversion. Further, since LASER continued to utilize the trade name after the seizure was terminated, IACO is entitled to claim damages for infringement under the provisions of 15 U.S.C. § 1117.

Despite appellate court decisions to the contrary; i.e., Pope v. Spiers, 347 So.2d 1191 (La.App., 1st Cir. 1977) and Escat v. National Bank of Commerce In New Orleans, 284 So.2d 832 (La.App., 4th Cir. 1973), Justice Marcus, as the organ of the Court in Nassau Realty Co., Inc. v. Brown, supra, at page 210 said:

“... The general rule in Louisiana is that attorney fees are not allowed except where authorized by statute or contract. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959); Moses v. American Security Bank of Ville Platte [222 So.2d 899, La.App.] supra; Morein v. G. J. Deville Lumber Co., Inc., 215 So.2d 208 (La. App.3d Cir. 1968). Although statutory provisions do permit the allowance of attorney fees for dissolution of improper seizures under writs of attachment, sequestrations or injunction (Louisiana Code of Civil Procedure, articles 3506, 3608), there are no provisions in law made for the recovery of attorney fees for damages for dissolution of a wrongful seizure of property under a writ of fieri facias. When such claim has been made, it has been rejected by the courts. Dubois v. Travelers Indemnity Company, 261 So.2d 94 (La.App.3d Cir. 1972); Moses v. American Security Bank of Ville Platte, supra. Thus the claim for attorney fees in the instant matter for wrongful seizure of the Brown property under the writ of fieri facias cannot be allowed.

Here, however, there is statutory authority for the award of attorney fees, namely, 15 U.S.C. § 1117, which provides in part as follows:

“. .., The Court, in exceptional cases may award reasonable attorney fees to the prevailing party ...”

Although LASER contends this is not an exceptional case, we consider it exceptional because LASER continued to use the trade name after the seizure was terminated and at times when IACO had repeatedly requested that it refrain from doing so and while IACO had a suit pending claiming damages for its illegal use.

Considering the fact the hotel involved here was the only one operated under the trade name, that it was never operated at a profit either by IACO, the receiver, or LASER, and the expert witness testimony of Mr. Lambert that in the absence of name recognition, the trade name does not have very much value, we cannot conclude the trial judge erred in awarding $500.00 per month as damages for the illegal use of the trade name. As a matter of fact, IACO could not have met its weekly operating payroll the week the seizure occurred. Additionally, although $7,500.00 may appear excessive as attorney fees for merely the Lanham Act portion of the claim, considering the fact this appeal was also involved we will not disturb it. However, since the court erred by twelve months in computing the period of time the hotel was operated under the trade name by LASER we will reduce the award in favor of IACO by $6,000.00 ($500.00 X 12). Accordingly, that portion of the district court judgment awarding $21,062.71 in favor of International American Company, Inc. and against Louisiana State Employees’ Retirement System is amended to provide an award of $15,062.71 in lieu of $21,062.71 and as amended affirmed. All costs of appeal to be borne by the appellant.

AMENDED AND AFFIRMED.


author: LOBRANO, Judge.

text:
    William G. YOUNG, et al. v. SOUTH CENTRAL BELL TELEPHONE COMPANY, et al.
    No. 12604.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      Winifred M. Delery, New Orleans,- for plaintiffs-appellees.
    Timothy L. McCune, Ogden, Ogden & McCune, New Orleans, for defendants-appellants.
    Before LOBRANO SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

The sole issue of this appeal is whether the trial judge abused his discretion in the damages awarded Rosaline N. Young and her husband William G. Young as a result of injuries Mrs. Young sustained in an automobile accident.

On March 14, 1978, Rosaline Young was driving her Ford Mustang in a northerly direction on Canal Boulevard. As she approached it’s intersection with Amethyst Street, a South Central Bell truck driven by Terry Hardeman, proceeding on Amethyst across the Canal Boulevard neutral ground, failed to stop and collided with her. Her car was struck even though she attempted to avoid the accident by honking and swerving to the right. As a result thereof Mrs. Young sustained personal injuries and instituted these proceedings for damages. The trial of this matter took place on December 4,1980, and the court rendered judgment as follows:

To Mrs. Young for pain, suffering, mental anguish, inconvenience, etc. $ 3,500.00
To Mrs. Young for loss of income 3,164.20
To the community — medical expenses 2,097.00
To the community — drugs, etc. 235.41
To the community — transportation 98.00
To Mr. Young — towing and storage of auto $ 75.00
To Mr. Young — loss of income 250.00
To Mr. Young — inconveniences, mental pain loss of consortium 750.00
To Mr. Young — deductible on loss of vehicle 100.00
TOTAL $ 10,269.67
MEDICALS
Methodist Hospital $ 179.50
Methodist Hospital 77.50
Dr. Veca 694.50
Dr. Elmorshidy 40.00
Physical Therapy Clinic 1,071.00
Dr. Tedesco 35.00
Total $2,097.00

South Central Bell and its driver, Terry Hardeman, perfects this appeal on the sole issue of quantum and raise the following issues:

a) The trial court should not have awarded medical expenses after July, 1978, the date which the court felt her injuries ceased;
b) The award for loss of income for one-half of the first semester of 1978-79 was improper;
c) The award of $750.00 to Mr. Young for inconvenience, mental pain and loss of consortium was improper;

Appellee answered this appeal seeking an increase in the award in accordance with Code of Civil Procedure Article 2133.

Personal Injury and Medical Expenses.

The trial judge in his written and oral reasons for judgment indicated that the award for pain and suffering was for the period up to July 1978, and that any pain experienced by Mrs. Young after that date was not as a result of the accident. He states on page 2 of his reasons for judgment as follows:

“The testimony of the treating physician, Dr. Kenneth Veca, as well as that of the examining physician, Dr. Essam Elmorsh-idy, convinces this Court that at the time of their last examinations, there were no objective symptoms of any pathology due to the trauma suffered by Mrs. Young. This does not necessarily mean that Mrs. Young did not experience pain after July 1978. She may be suffering even now. But not as a result of this accident. Dr. Elmorshidy’s explanation, which was found to be logical, is that Mrs. Young may be suffering from an inflammation of the tissues, (bone, joint or muscle), due to age or other malady but not as a result of the trauma ...”

The record reflects that Mrs. Young was treated by Dr. Veca from the date of the accident, March 14, 1978, thru June 26, 1979. Her visits to his office were on March 14, March 22, April 4, April 20, May 5, May 19, June 22, August 31, and November 10 of 1978; and March 16 and June 26 of 1979. She was also examined by Dr. Elmorshidy on June 27 and July 18, 1978. Physical therapy was prescribed by Dr. Veca on Aprii 20, 1978, and Mrs. Young continued same three times a week thru November 10, 1978. It is clear that after July of 1978 Mrs. Young’s objective findings ceased, however she continued to experience pain and suffering. Our review of the record indicates that neither Dr. Veca nor Dr. Elmorshidy testified that said pain and suffering were not the result of the accident. Further, their testimony indicates that an injury of this type need not exhibit itself in objective findings at all stages, but may still cause pain and suffering over an extended period. Upon specific questioning as to possible reasons for this, Dr. Elmorshidy, testified as follows:

Q. “Assuming that we have an injury of this nature, not necessarily Mrs. Young’s injuries, but an injury of this nature, would it be possible for that injury to persist for a longer period of time, in an area or two?”
A. “I believed I answered this question, however, I said, ‘in case of mild moderate soft tissue, it is unusual for it to be persistent, if it is complicated by inflammatory process in such people who are liable or prone to have inflammatory problems like inflammation, arthritis, some people are liable to have these problems and other people are susceptible to have flareups or inflammation caused by an injury. So, in this case of a mild, moderate injury this would be the only explanation, in the case of a severe injury that is a different story-’ ”

We are convinced that Mrs. Young’s pain and suffering, even if manifested primarily by subjective symptoms, did continue past July of 1978. We also feel Dr. Elmorshidy’s reasonings in this regard are convincing, and tend to agree that plaintiff’s extended suffering could have been caused by aggravation of pre-existing conditions. Louisiana follows the rule that a tortfeasor takes his victim as he finds him, and is responsible in damages for the consequences of his tort although the damages so caused are greater because of a prior condition which may be aggravated. Reck v. Stevens, 373 So.2d 498 (La.1979).

We are well aware that the judgment of the trial court on damages for pain and suffering should not be disturbed unless manifestly erroneous. Reck v. Stevens, supra. However, in our opinion, the awards made by the trial court show an inconsistency which is obvious to all parties. The Court awards pain and suffering thru July of 1978, but yet awards medical expenses thru June of 1979, and lost wages for one-half of the first semester of the 1978-79 school term. This is precisely the type of error which we are mandated to rectify. We therefore award Mrs. Young pain and suffering through November 10, 1978 the date that her physical therapy terminated. We feel this is proper in light of Dr. El-morshidy’s testimony that the usual course of recovery for injuries of this nature is between a period of 6 to 9 months. Since Judge Ortique awarded $3,500.00 pain and suffering for the 4 month period March thru July, 1978, we will award an additional $3,500.00 for pain and suffering for the period from July 1978 thru November 1978.

This having been established we hold that the award of medical damages past November 10,1978 was improper. The record reflects that Mrs. Young visited Dr. Veca twice after November 10, 1978, the fees for these visits totaling $50.00. The award of medical damages must therefore be reduced by this $50.00.

LOSS OF WAGES:

A total of $3,164.26 was awarded Mrs. Young for her loss of income. In his oral reasons for judgment the trial judge specified that she was awarded the full difference between her normal and actual pay for 1977-78, or $1,988.31, but was only awarded one-half of the loss for one semester of 1978-79, or $1,175.96. (T 109, P-5)

Awards of damages for loss of wages up to date of trial can be calculated mathematically from the proof offered and thus does not fall within the “much discretion” rule. Edwards v. Sims, 294 So.2d 611 (4th Cir. 1974). To measure lost wages the amount earned by the injured party’s replacement should be subtracted from the amount actually earned by the injured party during the same time period. In the instant case Mrs. Young requested and was granted a sabbatical for rest and recuperation for the 1978-79 school year. Having found her disability continued until November of the 1978 school year we hold that she should have been awarded the difference between what her replacement received for that one semester and what Mrs. Young received. Testimony at trial by Andrew Meibaum, payroll supervisor for the Orleans Parish School Board indicated, that this difference was $2,351.91. Thus Mrs. Young should have been awarded $1,988.31 plus the $2,351.91, for a total of $4,340.22.

Appellee asserts that the trial court erred in failing to award her $4,000.00 as loss from anticipated profit on an art course she planned to teach at her home during the summer of 1978. In view of the fact that Mrs. Young failed to introduce any evidence other than her own self-serving and speculative testimony in regard to this item for damage we. must agree with the trial court’s judgment in this respect.

Award to Mr. Young for inconvenience, mental pain, and loss of consortium.

The judgment of the trial court awarded $750.00 in damages to Mr. Young for inconvenience, mental pain and loss of consortium. Under Louisiana jurisprudence this award was clearly erroneous and must be reversed. The established rule in this State is that, except in death cases, one person may not recover damages for mental pain, anguish, or loss of consortium by him, suffered merely as a result of physical injuries sustained by another person. McFarland v. Cathy, 349 So.2d 486 (3rd Cir. 1977); Bourque v. American Mut. Liab. Ins. Co., 345 So.2d 237 (3rd Cir. 1977)

“The rationale of this premises is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.” Bourque supra id p. 238

For the above and foregoing reasons the judgment of the trial court is affirmed in part, amended in part and reversed in part. We make the following award of damages:

To Mrs. Young for pain, suffering, mental anguish, inconvenience, etc. $ 7,000.00
To Mrs. Young for loss of income 4,340.22
To the community — medical expenses 2,047.00
To the community — drugs, etc. 235.41
To the
community — transportation 98.00
To Mr. Young — towing and storage of auto 75.00
To Mr. Young — loss of income 250.00
To Mr. Young — deductible on loss of vehicle 100.00
Total $14,145.63

REVERSED IN PART, AMENDED IN PART AND AFFIRMED AS AMENDED.


author: WARD, Judge.

text:
    Anne S. PINCUS v. Joseph PUMILIA, et als.
    No. 12400.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Joseph R. Ward, Jr., Buckley & Ward, New Orleans, William H. Syll, Jr., and Walter M. Babst, Bernard, Cassisa, Babst & Saporito, Metarie, for defendant-appellant.
    John E. Jackson, Jr., New Orleans, for defendants-appellees.
    David W. Oestreicher, II, Ostreicher & Whalen, New Orleans, for plaintiff-appellant.
    Before GARRISON, WARD and AUGUSTINE, JJ.
   WARD, Judge.

Defendants appeal from a judgment in favor of plaintiff, Anne S. Pincus, awarding damages of $33,600 for injuries she sustained in an automobile accident. The liability of defendants Joseph Pumilia and Noel Brown, Jr., is not questioned. However, defendant Insurance Company of Florida denies the existence of liability insurance coverage and denies liability to Anne Pincus. All defendants appeal the award of damages, claiming that it is excessive.

On April 27, 1978, Anne Pincus was travelling in her automobile in the French Quarter of New Orleans, and entered a hotel parking garage, where she stopped the vehicle. At this time her automobile was struck from the rear by a taxicab owned by defendant Joseph Pumilia and driven by defendant Noel Brown, Jr. This negligence caused personal injury to Mrs. Pincus and property damage to her automobile.

LIABILITY INSURANCE COVERAGE

The Insurance Company of Florida contends that on the date of the accident it did not provide liability coverage for a taxi owned by Joseph Pumilia when it was being driven by Noel Brown, Jr. Prior to the accident, on February 18, 1978, a notice of exclusion of Brown from coverage was mailed to Brown, Pumilia, the New Orleans Taxicab Bureau, and the insurance company’s home office. This creates a presumption of receipt by the insured. LSA-R.S. 22:686, 22:636.1. However, this presumption may be rebutted. Broadway v. All-Star Insurance Corporation, 285 So.2d 536 (La.1973); Automobile Club Insurance Co. v. Aaron, 296 So.2d 464 (La.App. 4th Cir. 1974), writ ref., 300 So.2d 186 (La.1974).

To rebut this presumption Mr. Pumilia testified that he did not receive the notice of termination of coverage, that he continued to pay premiums after the mailing of the notice, and that the insurance company’s agent continued to accept payments. This was corroborated by receipts given by the insurance company’s agent to Brown, and Brown continued to drive for Pumilia.

The trial judge found the evidence presented rebutted the presumption of receipt of the notice of cancellation, and we will not disturb the trial judge’s findings of fact; there is no manifest error.

QUANTUM

The jury awarded plaintiff $33,600, of which $600 was for medical expenses and $33,000 for pain and suffering. Defendants contend the jury abused its discretion when it awarded plaintiff this amount, and seek to have the award declared excessive and reduced. They argue that plaintiff’s offer of proof of only $600 for medical expenses reflects the mildness of her injury, which was characterized by medical witnesses as a mild cervical strain with intermittent muscle spasm. Defendants contend that this abuse of discretion becomes obvious when the award is compared with verdicts and judgments in cases of similar injuries. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) holds that while the court must allow the jury wide discretion in making an award for pain and suffering to a plaintiff, it is within the province of the appellate court to review the jury award based on the record and reduce an obviously excessive award.

The possibility of jury abuse of discretion in making an excessive award should ultimately be measured by the standards of Reck v. Stevens, 373 So.2d 498 (La.1979): the inquiry must be directed at whether the trial court’s award for the particular injuries and their effects upon the particular person is a clear abuse of the trier of fact’s broad discretion. The Louisiana Supreme Court in Reck suggested that while an examination of prior awards, if those awards are similar, has a limited function in a determination of excessiveness or sufficiency, the reviewing court must look first not to prior awards, but to the individual circumstances of the case before them. Only after analysis of the facts and circumstances peculiar to that case and that individual may a reviewing court determine that the award is excessive.

As to the individual in this case, the morning after the accident, feeling stiff and sore, with pain in her neck and shoulders, Mrs. Pincus went to a hospital emergency room for treatment, where the examining physician gave her a prescription for muscle relaxers. Her condition did not improve, and she sought treatment from an orthopedist, Dr. Hoerner, and a neurologist, Dr. Vogel. Both physicians independently diagnosed Mrs. Pincus’s injuries as cervical strain with intermittent muscle spasms and limitation of motion. Under their direction, Mrs. Pincus followed a regimen of physiotherapy, neck exercises, traction, medication, and was required to wear a cervical collar. Nineteen months later, at the time of trial, she was still having recurring pain, intermittent cervical spasms, and wearing a cervical collar.

Prior to the accident Mrs. Pincus, a young married woman and the mother of a two-year-old son, was a very active person, a full-time housekeeper for her family, who did gardening and played tennis. Since the accident she has been unable to lift heavy objects without experiencing pain in her neck, has had difficulty driving, and has had to rest frequently because of the pain and discomfort in her neck. She has no longer been able to do certain things she normally did, such as lift and carry her child, play tennis, run, or work in her garden, and she has had to hire additional household help in order to care for her family. Her discomfort was enhanced when, during her recuperation, plaintiff became pregnant.

Defendants did not refute the evidence introduced by plaintiff as to the duration or severity of her injuries.

We have compared damages awarded for cervical strain in recent cases. In Worsham v. Hanover Insurance Co., 378 So.2d 1060 (La.App. 2nd Cir. 1979), the court reduced general damages awarded from $10,000 to $6,500. This case is similar to the case before us in that it involved cervical strain as the result of a rear-end collision. Although plaintiff made thirty-two trips to a chiropractor for adjustments, she missed no work, took no pain-relieving medications, and sought no medical treatment for nearly a year after her injury, and then on only two occasions. This case is distinguishable; Mrs. Pincus proved more pain and suffering.

In Marceleno v. State Department of Highways, 367 So.2d 882 (La.App. 3rd Cir. 1978), writ ref. 1979, a $12,500 award to the victim of an auto accident was upheld where there was evidence of neck-and back pain from the time of the accident through trial with treatment by medical doctors and a chiropractor during that time. Plaintiff’s total award was $22,400, which included medical expenses and loss of earnings. “Earnings lost” by Mrs. Pincus are incalculable, since she is a homemaker. Considering the domestic help plaintiff required while recuperating, the jury’s $33,600 award to Mrs. Pincus is similar to Marcele-no.

Most significant are the recent cases of Mueller v. New Orleans Public Service Inc., 348 So.2d 1296 (La.App. 4th Cir. 1977) and Kostrzewa v. Wilson, 397 So.2d 859 (La.App. 4th Cir. 1981), writ ref. 1981, both of which significantly increase the upper range of awards for injuries similar to Mrs. Pincus’s. In Mueller, the Fourth Circuit affirmed the trial court’s award of $25,000 for injuries to plaintiff’s back and neck which lasted until the time of trial, over nineteen months after the accident. The extent and duration of injuries in this case are similar to those of Mrs. Pincus: chronic cervical strain accompanied by muscle spasm, mild limitation of motion, some pain even at the time of trial, all of which had been treated by cervical traction, physiotherapy and medication. In the Kostrzewa case, the court held that although it could be considered in the upper range, an award of $25,500, including medical expenses of $327, was within the permissible limits for a neck injury, where the physician found tenderness over the right side area, decrease of motion, pain on tilting, and slight to moderate muscle spasticity, with treatment consisting of a cervical collar, heat applications, and medication, and with plaintiff gaining full range of cervical spine four months after the accident, but continuing to complain of neck pain at trial some thirty months after the incident.

After evaluating both the effect of the cervical injury upon Mrs. Pincus and the awards made for similar injuries in other cases, we conclude that there was no abuse of the broad discretion of the trier of fact in awarding damages for pain and suffering in the amount of $33,000.

Therefore, the judgment of the trial court is affirmed.


text:
    Julius WHITE, D/B/A White Brothers Roofing Company v. ORLEANS PARISH SCHOOL BOARD, Cappel, Tousley & Montgomery Consulting Engineers, and American Fidelity Fire Insurance Company.
    No. 12698.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    John S. Keller, New Orleans, for plaintiff-appellant.
    Kenneth F. Sills, Polack, Rosenberg, Rit-tenberg & Endom, Lloyd N. Shields, Simon, Peragine, Smith & Redfearn, New Orleans, for defendant-appellee.
    Before BARRY, WARD and BYRNES, JJ.
   WARD, Judge.

Plaintiff Julius White filed this suit claiming damages arising from a breach of contract between White Brothers Roofing Company, a partnership, and the Orleans Parish School Board. Plaintiff has also sued Cappel, Tousley and Montgomery, the consulting engineers who provided specifications for the contract, and American Fidelity, the surety for performance of the contract by White Brothers. The contract was for construction of a roof by White Brothers for the Crocker School, owned by the School Board. White Brothers was a partnership, now dissolved, originally consisting of Julius, Abel and Isiah White.

The School Board and American Fidelity filed exceptions of no right of action, which were maintained by the trial court, and the plaintiff’s petition was dismissed. Plaintiff appeals that ruling. The issue that must be decided is whether plaintiff has an interest in the contract, and therefore a right of action to sue for damages for breach of it.

He contends that as a former partner he has a right to claim damages for breach of the contract between White Brothers and the School Board. He also argues that he may assert claims on behalf of the partnership, even though it is now dissolved; that he has an interest in recovering partnership assets, since he may be liable for partnership debts.

He further contends the dissolved partnership has a fictional existence with respect to past transactions and existing assets, and that he has a right to assert the unliquidated claims of the partnership by bringing suit in the partnership name. He relies on EDCO Properties v. Landry, 371 So.2d 1367 (La.App. 3rd Cir. 1979), writ den. 375 So.2d 945 (La.1979), and Cambre v. St. Paul Fire & Marine Insurance Co., 331 So.2d 585 (La.App. 1st Cir. 1976), writs den. 334 So.2d 434, 334 So.2d 435 (La.1976). He does not contend that he has written permission of White Brothers Roofing Company or of his brothers, Abel and Isiah, to bring suit for the partnership.

The School Board and American Fidelity contend that prior to the filing of this petition plaintiff had withdrawn from the White Brothers partnership, and that he has no right to claim damages for breach of the contract, and that he is not authorized to file suit for the partnership.

The contract between White Brothers and the School Board was signed November 2, 1977, and construction commenced. White Brothers experienced problems in construction, delays ensued, and financial difficulties developed. Julius White withdrew from the partnership June 16, 1978. Construction stopped, the partnership was placed in default by the School Board, and American Fidelity was required to complete the contract. The remaining partners, Abel and Isiah White, dissolved the partnership July 1, 1979, prior to the filing of this petition.

We believe the trial court’s ruling is correct. Plaintiff does not have a right of action; he does not have an interest in the partnership, or in the fictional entity of a dissolved partnership, or in the contract. When Julius White withdrew from the partnership, he exchanged his partnership interest for back pay and payment of partnership debts to him. Therefore, he gave up any interest he might have in partnership assets, and one of those assets was the contract between White Brothers and the School Board. We agree with American Fidelity:

Since Julius White was not a partner at the time of partnership dissolution, he has no rights to any liquidated assets. He has no rights which partners would have. ‘Partners’ are those who hold that position at the time of dissolution. Hence, EDCO Properties v. Landry ... and Cambre v. St. Paul Fire & Marine Ins. Co. ... are totally inapplicable.

All actions by a partnership must be brought by the partnership. Apex Sales Company v. Abraham, 201 So.2d 184 (La.App. 4th Cir. 1967). There is no reason to distinguish between a partnership and a dissolved partnership existing as a fictional entity for the purpose of deciding who is authorized to bring suit; suit must be brought in the name of the partnership by a partner or one who was a partner at the time of dissolution. The dissolved partnership may have maintained a fictional existence, but Julius White was not part of it. He was not authorized to bring suit in its name. He cannot proceed in its name. He has no right of action.

We affirm.


author: WARD, Judge. PER CURIAM.

text:
    Stan FEJTA d/b/a Fejta Construction Company v. WERNER ENTERPRISES, INC.
    No. 12774.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 20, 1982.
    Writ Denied June 11, 1982.

      Jacqueline Mae Goldberg, New Orleans.
    C. James Gelpi, Gelpi & Willeford, P. C., New Orleans.
    Before BARRY, WARD and BYRNES, JJ.
   WARD, Judge.

This is a suit on an alleged promissory note in the amount of $8,000.00. Defendant Werner Enterprises, Inc., appeals the district court’s judgment in favor of plaintiff, Stan Fejta, d/b/a Fejta Construction Company. This note was given by Werner to Fejta as evidence of an amount due Fejta by reason of a construction contract. That contract was signed in September, 1978, when Fejta and Werner entered into an agreement for the construction of Pontchartrain Plaza in New Orleans.

Thereafter, construction commenced, work was performed, but payments agreed to in the contract were not made timely by Werner to Fejta. On April 4, 1979, a writing styled “Promissory Note” was prepared by Fejta and signed by Werner in the office of Fejta Construction Company. After several unsuccessful attempts to collect this indebtedness, in July, 1979, Fejta filed a petition asking for judgment on the note. In response, Werner filed an Exception of No Cause of Action, claiming that the instrument was not a promissory note. This exception was dismissed by the district court, and in October, 1979, Werner filed a general denial in answer to the petition.

In October, 1980, Werner filed a recon-ventional demand against Fejta for damages in the amount of $1,100,000.00 for breach of the Pontchartrain contract and other construction contracts between Wer-ner and Fejta. Although trial was scheduled for January 28,1981, the reconventional demand was not served on Fejta until January 14. The trial court ruled that the reconventional demand would not be tried with the principal demand, since the sheriff had served Fejta with the reconventional demand only two weeks before trial. Wer-ner moved for a continuance on the day of trial so that the entire matter could be tried at one time. The motion was denied, and trial commenced. During the trial Werner attempted to present defenses to Fejta’s claim on the note; however, the trial court ruled that any defense which was included in the reconventional demand could not be raised. The trial court rendered judgment in favor of Fejta in the amount of $8,000.00 plus interest, holding that the instrument was a legally enforceable promissory note.

Appellant Werner has presented two issues for our consideration: (1) whether the instrument in question was an enforceable promissory note; and (2) whether the trial court erred in refusing to receive evidence of contractual defenses to Fejta’s demand for judgment on the note; or alternatively, in refusing to grant the motion for a continuance.

With regard to the status of the note, we agree with the trial court: the instrument sued on is a promissory note. The note is not in the usual form of a promissory note. It states:

Promissory Note
Werner Enterprises, Inc. by resolution and signature acknowledges that a debt of $8000.00 is owed to Mr. Stan Fejta (Fejta Construction Company) regarding the construction of “Pontchartrain Plaza,” 1930 West End Park.
This note is payable at maturity on or before May 19, 1979, plus 10% (percent) interest.
Date: April 4, 1979

The writing was followed by signatures of George R. Werner, Stan Fejta, and August Werner, as well as signatures of two witnesses.

Werner denies that this writing constitutes a promissory note, since a note must bear an unconditional promise to pay and, he alleges, this instrument on its face bears no promise at all, and is nothing more than an acknowledgement of a pre-existing debt. Further, he contends, even if a promise could be construed, it could not be considered unconditional because of language subjecting it to the terms of a prior agreement between the parties “regarding the construction of Pontchartrain Plaza.”

Louisiana Revised Statutes, Title 10, defines a promissory note (frequently referred to simply as a “note”) as a written promise to pay money to a designated party and signed by the maker of the promise. More specifically, it speaks of a “promise” as an undertaking to pay, and which must be more than an acknowledgement of an obligation. LSA-R.S. 10:3-102(l)(c). As to the instrument questioned by defendant, although some of the instrument’s language indicates it is merely a recognition that a debt exists, examination of the entire writing convinces us that it is a written promise by Werner to pay Fejta the amount in question. This interpretation is supported by the styling of the instrument as “Promissory Note,” and other language in the note: “The note is payable at maturity . . . Fejta and Werner clearly intended this writing to be a written promise to pay money to Fejta.

Werner’s second contention, that the note does not contain an unconditional promise to pay, is important only if negotiability is an issue or if Fejta claimed to be a holder in due course. But negotiability of the note is not an issue, although both parties have referred to it; the note was not transferred to a third party; the demand for payment and suit was brought by the original holder. As the original holder of the note, Fejta is not a holder in due course, and his petition for judgment on the note is subject to all defenses which could be raised in a suit between the parties. Republic Finance of Gramercy, Inc. v. Davis, 289 So.2d 891 (La.App. 4th Cir. 1974); B. Olinde & Sons, Inc. v. Istrouma Mercantile Co., 172 So. 793 (La.App. 1st Cir. 1937). Therefore, Werner could have raised contractual defenses in resisting the demand for payment of the alleged debt. The promissory note was only evidence, albeit strong evidence, of the existence of that debt.

However, while we find that the defendant was entitled to raise defenses to the nóte, LSA-C.C.P. Art. 1005 requires that a party affirmatively plead certain defenses. The applicable paragraph of that article states:

The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense.

Werner’s answer to the petition was merely a denial of indebtedness to Fejta; he did not plead contractual defects or breach of contract as an affirmative defense. Although not specifically listed as affirmative defenses, defects in construction and breach of contract by failure to perform are affirmative defenses which must be specifically pleaded by way of answer. Pace v. Reasing Rivers Construction Co., Inc., 377 So.2d 530 (La.App. 3rd Cir. 1979), Strahan v. Delta General Construction Corp., 207 So.2d 863 (La.App. 4th Cir. 1968). These defenses were not raised until a year later, when the reconventional demand was filed. Therefore, the trial court did not err when it refused to receive evidence of contractual defenses during the trial.

Additionally, the trial court did not err or abuse its discretion when it refused to grant a continuance. The Louisiana Code of Civil Procedure, Art. 1601, allows the trial judge much discretion in granting or denying continuances. Defendant’s re-conventional demand was not filed until one year after defendant filed a general denial. It was not served on plaintiff until two weeks before trial on the merits of plaintiff’s demand. The trial court acted reasonably and within its discretion under these circumstances, and within the spirit of LSA-C.C.P. Art. 1631, which empowers the court to conduct proceedings expeditiously.

We affirm.

ON MOTION FOR REHEARING

PER CURIAM.

Rehearing denied. Counsel for appellant has read meanings into parts of the original decision that a fair reading would indicate are incorrect. In the application for rehearing, counsel for appellant claims the document signed by Werner and Fejta is not a promissory note because it fails to include an unconditional promise to pay, citing DeRouin v. Hinphy, 209 So.2d 352 (La.App. 4th Cir. 1968), writ ref. 252 La. 465, 211 So.2d 330 (1968). We relied on the same case for the specific language that “The word ‘promise’ is not sacramental in a promissory note.” In that case the words “to be paid on demand” were found to be a promise to pay, and the document was held to be a promissory note. The note now in question contains a similar phrase: “This note is payable at maturity on or before May 19, 1979.... ” The language in the instruments is indistinguishable. We believe Werner made a written promise to pay Fejta, that the instrument was a promissory note, and we affirmed the trial judge’s finding that it was. However, we do not agree with counsel’s contention that the trial judge’s finding that the instrument was a promissory note precluded Werner from asserting defenses. Counsel has confused the legal concepts of a non-negotiable promissory note with that of a negotiable instrument in the hands of a holder in due course. Negotiability was not an issue; the note was never transferred to a third party. Hence, counsel could have raised defenses to the suit on the note.

We reiterate, however, that the proper procedure for raising these defenses would have been through answer to the main demand, LSA-C.C.P. Art. 1005, and we cited Pace v. Reasing Rivers Construction Co., Inc., 377 So.2d 530 (La.App. 3rd Cir. 1979), as authority for our opinion. That case clearly shows that appellant’s defenses were incorrectly raised by means of a reconven-tional demand. By citing Pace, supra, in our original opinion, we did not imply that the reconventional demand was forever lost. That is not an issue in this appeal.

Whether the trial judge abused his discretion when he denied counsel for appellant’s motion for a continuance is an issue. Counsel for appellant waited a year after the appellee’s petition had been filed to make a reconventional demand. The record does not indicate that counsel notified ap-pellee or appellee’s counsel of the reconven-tional demand until after the continuance of the trial from its first setting. Moreover, the reconventional demand was served on appellee only two weeks before the date of the second setting of the trial of the main demand, and more than fifteen months after the filing of Fejta’s petition. Under these circumstances, we cannot say the trial judge abused his discretion when he denied counsel’s second motion for continuance of the trial, or when he declined to hear the reconventional demand during trial of the main demand.


author: CUTRER, Judge.

text:
    Lennie H. WALKER, et al., Plaintiffs-Appellants, v. JAMES W. SALLEY, INC., et al., Defendants-Appellees.
    No. 8598.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Writ Denied June 11, 1982.

      Pharis & Pharis, F. Jean Pharis, Alexandria, for plaintiffs-appellants.
    Provosty, Sadler & deLaunay, Ronald J. Fiorenza, Alexandria, for defendants-appel-lees.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Mrs. Lennie H. Walker and her husband seek damages for personal injuries, sustained when Mrs. Walker tripped and fell on the premises owned by the defendant, James W. Salley, Inc., and insured by defendant, Insurance Company of North America. The trial judge rendered judgment in favor of defendants. Plaintiffs appeal. We affirm.

The facts presented in this case are as follows:

Mrs. Walker and her husband were both employed by Howard Brothers Discount Store (Howard’s) in Alexandria. Mrs. Walker had been so employed for I'k years. Her employment ended each day at 5:00 P. M. Her husband had to work until 6:00 P. M.

James W. Salley, Inc. (Salley’s) operated Salley’s Food Store which was located near Howard’s, being approximately one block away. Howard’s and Salley’s are part of a shopping area. It was customary for Mrs. Walker to shop for groceries at Salley’s after 5:00 P. M. while waiting for her husband to get off work. She had been doing so during the Th years that she had been employed at Howard’s. She testified that she usually walked from Howard’s to Sal-ley’s. After completing her shopping she would'return to Howard’s to meet her husband.

On March 19, 1979, Mrs. Walker completed her work at Howard’s. She walked to Salley’s to do some shopping. After purchasing a few items, she left the front door of Salley’s and walked down the porch of the store toward Howard’s. Approximately 55 inches from the end of the porch is located a curb or bumper made of concrete 5" high and 6" wide. This curb or bumper was installed as a restraining barrier to prevent vehicles from striking the side of Salley’s. The curb had been in existence for several years.

Mrs. Walker testified that as she proceeded from Salley’s store, she was carrying one bag of items and her purse. As she approached the curb, she stated as follows:

“Q. All right. Will you tell the Court what happened as you left the canopy or left the porch of Salley’s Store?
“A. As I walked off the end of the store, out at the end, I stepped down. And then, there’s. . .. this little curb there that I started to step over, and my foot was, got caught on that curb and it, and I fell.
“Q. All right. Your foot got caught on the curb and you fell?
“A. Yes, sir.”

She was injured in the fall.

Mrs. Walker also testified that she was well aware of the existence of the curb. She had traversed the same area on other occasions as she went from Howard’s to Salley’s for shopping purposes. It was daylight at the time of the accident. Mrs. Walker stated that her vision was not impaired.

The trial judge, in his reasons for judgment, stated, in part, as follows:

“Therefore, since Mrs. Walker was fully aware of the curb, and in fact saw it and tried to step over it, this Court finds that the curb did not present an unreasonable risk of harm to her.”

The trial judge also stated that Mrs. Walker failed to exercise reasonable care under the circumstances presented and that such failure was the cause of her accident.

On appeal, Mrs. Walker contends that this suit is governed by LSA-C.C. art. 2317 (strict liability). Mrs. Walker also contends that contributory negligence (victim fault) is no longer a defense to a 2317 suit under Dorry v. LaFleur, 399 So.2d 559 (La.1981). We agree that this suit is governed by LSA-C.C. art. 2317 in view of not only Dorry, but also the recent case of Morgan v. Hartford Acc. & Indem. Co., 402 So.2d 640 (La.1981). However, we do not reach the issue of contributory negligence as a defense since Mrs. Walker failed to prove that the curb was defective or created an unreasonable risk of harm.

Also, art. 2317 was applied in the determination of the ease of Morgan v. Hartford Acc. & Indem. Co., supra. That case was a wrongful death action resulting from a fall in a church by the deceased when she fell at an 8" stepdown between two rooms. The court held that under the facts, the step-down presented an unreasonable risk of harm to the deceased.

In the case at hand, the record fully supports the trial judge’s conclusion that this curb did not present an unreasonable risk of harm to Mrs. Walker.

The curb was only 5" high by 6" wide. It was easily discernable to anyone traversing the area. Mrs. Walker was well aware of the existence of the curb. She had successfully traversed the area many times. She saw the curb on the day in question, attempted to traverse it, misjudged her step or footing and tripped. The fact that Mrs. Walker fell does not elevate the condition of the curb to that of an unreasonable dangerous vice or defect. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). Mrs. Walker has failed to prove a necessary element as required by the strict liability cases.

In Shipp v. City of Alexandria, supra, at 728, the court held as follows:

“We have described the legal foundation for imposing liability under art. 2317 in the following terms:
When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former's part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1978), citing Loescher v. Parr, supra, at 446. An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thins’ which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another. and that his injury was caused by the defect. Once these elements are proven. the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr, supra.” (Emphasis added.)

Having failed to prove that the curb created an unreasonable risk of harm to her, Mrs. Walker cannot recover under Louisiana Civil Code art. 2317.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay costs of this appeal.

AFFIRMED.

FORET, J., concurs in the result.