author: LOTTINGER, Judge. PONDER, Judge,

text:
    Eulice C. BLOUNT v. EXXON CORPORATION and Employer’s Casualty Company.
    No. 13958.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Dana K. Larpenteur, Plaquemine, counsel for plaintiff-appellant, Eulice C. Blount.
    John M. Roper, P. 0. Box 60626, New Orleans, counsel for defendant-appellee, Exxon Corp.
    Brent K. Kinchen, Baton Rouge, counsel for intervenor-appellant, Associated Indem. Corp.
    M. O’Neal Walsh, Baton Rouge, counsel for defendants-appellees, H. E. Wiese, Inc., Aetna Ins. Co., Jack Ellis & Herman Thompson.
    Wood Brown, III, New Orleans, John S. Campbell, Jr., Baton Rouge, counsel for third party defendant-appellee, H. E. Wiese, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The issue in this tort suit on appeal is whether the defendant, Exxon Corporation, is the statutory employer of the plaintiff, Eulice C. Blount, and therefore immune under Louisiana’s workmen’s compensation laws from suit in tort. The trial court sustained Exxon’s motion for summary judgment and ruled that Exxon was the plaintiff’s statutory employer. The plaintiff perfected this devolutive appeal, as did the intervenor, Associated Indemnity Corporation, which was the workmen’s comp, insurer of plaintiff’s employer, H. E. Wiese, Inc.

On February 4, 1977, plaintiff was employed by the Wiese Company as a pipe fitter on Exxon premises. Wiese was under contract with Exxon to convert an ethyl alcohol plant into an isopropyl alcohol facility. The conversion was known as the IPA Expansion Project. At the time of the injury, Blount was assisting other employees of Wiese in installing orifice flanges in some existing pipelines for the purpose of completing the off-site work, which work was being done away from the main construction and which consisted of tying the pipelines into other units of the plant. When a Wiese safety employee noticed that the makeshift scaffold upon which the plaintiff was standing did not have handrails, he ordered that the scaffold be lowered and that handrails be placed thereon. At about this time, the plaintiff stepped from the scaffold which was some 14 to 20 feet above the ground and slipped on some wet insulation which was wrapped around some of the pipes. Plaintiff’s fall to the ground resulted in severe and permanent injury.

After plaintiff filed his suit and after a number of additional pleadings were filed, Exxon moved for summary judgment contending that it was the plaintiff’s statutory employer under La.R.S. 23:1061, the so-called Section 6 defense. In connection with its motion for summary judgment, Exxon filed three affidavits of its employees.

E. M. Boyle, who at the time of Blount’s injury was manager of the project development department at Exxon’s chemical plant, stated in his affidavit that Exxon’s engineers and draftsmen had the skills necessary to design the entire IPA Expansion Project. However, because of demands on their time and other concerns, these personnel were not used on the total job and part of the work was contracted out to the H. E. Wiese Company. Boyle also stated that the Baton Rouge chemical plant continued to operate during the changeover although the ethyl alcohol unit was not producing at the time.

Another employee, Seth H. Mitchell, mechanical division manager at the time of the injury, stated that the installation of orifice flanges in existing pipes was a regular chore included in the ordinary work done by pipe fitters and welders employed by Exxon at its Baton Rouge chemical plant. Mitchell said approximately 500 employees reported to him, including about 27 welders, 113 pipe fitters and other skilled craftsmen. Exxon’s skilled craftsmen, according to Mitchell, were capable of doing most if not all of the work undertaken by the Wiese Company in converting the ethyl unit to an isopropyl production unit. Work load demands, economic feasibility and the amount of time required to handle the conversion resulted in Exxon’s decision to contract the work out to the Wiese Company, Mitchell testified.

A third employee, Stanley G. Tebbe, head of the Maintenance II Department at the chemical plant at the time of the injury, also stated that the installation and removal of orifice flanges and pipes were a part of the regular work load of the welders and pipe fitters employed by his department. Exxon’s work force in that regard included about 25 welders and more than 100 pipe fitters.

Exxon also submitted two depositions in support of its motion for summary judgment. Both of these depositions were concerned basically with the facts of what happened on the day Blount was injured. One of the deponents, Herman A. Thompson, manager of safety and security with the Wiese Company, stated that the type of work being done by Wiese at the time Blount was injured was demolition work, rebuilding part of the plant and renovating an existing production unit.

Although the plaintiff’s counsel argued against the motion for summary judgment at the hearing on the motion, he filed no countervailing affidavits or depositions. The plaintiff did, however, file a motion for a new trial alleging that new information not available at the time the motion for summary judgment was tried had since become available. This new evidence, consisting of depositions taken in another case arising out of the same construction project at the Baton Rouge chemical plant, purportedly refuted the statements made in the affidavits submitted by Exxon. The trial court denied the motion for the new trial and these appeals were perfected.

In appealing plaintiff-appellant contends the trial judge erred:

(1) in dispensing with this case via summary judgment when the case was unripe;

(2) in holding there was no genuine issue as to material fact in the litigation;

(3) in holding that the work being performed by plaintiff was in the ordinary trade, business and occupation of Exxon, and holding Exxon to be plaintiff’s statutory employer; and

(4) in holding La.R.S. 23:1032 & 1061 constitutional.

The appeal of intervenor is based on the same errors alleged by plaintiff, except for the constitutional issue.

MOTION FOR NEW TRIAL

Appellant has not assigned as error the denial of a new trial; however, we must briefly discuss the denial of a new trial to determine whether certain depositions are properly before this court.

In his application for new trial, plaintiff asserted that he discovered the existence of a second suit arising out of the same work which was being done at the time Blount was injured. He said that the depositions, affidavits and other pleadings in the second suit refuted the affidavits filed on behalf of Exxon in the instant case. He also averred that the suit record could not be obtained with due diligence before the summary judgment hearing in the present case and that the record was discovered only after “an exhaustive search” of the court records in East Baton Rouge Parish.

Though the trial judge in his written reasons denying the new trial indicates that he read the depositions, this does not mean that the depositions attached to the motion for a new trial were offered, introduced and filed into evidence, thus becoming part of the evidentiary record on appeal. Under La.C.C.P. art. 1972, in a non-jury case two questions are before the trial court—(1) whether the judgment is clearly contrary to the law and evidence and (2) whether the party seeking the new trial could have discovered the new evidence with due diligence. Under the first situation the decision must be made on the evidence presented at the original trial; thus, no new evidence is involved. In the second case, the only question before the court is one of “diligence.” The court may look at the evidence in making this determination, but until a new trial is granted, the trial court does not receive any additional evidence in the case. Thus, those depositions attached to plaintiff-appellant’s motion for a new trial are not before this court and form no part of the record on appeal.

SUMMARY JUDGMENT

A person desiring to obtain a summary judgment must show by affidavits or otherwise that there is no genuine issue of material fact in connection with the matter upon which summary judgment is sought. If the mover overcomes this obstacle, he may be granted a summary judgment if he is entitled to such a judgment as a matter of law. La.C.C.P. art. 966. Our Supreme Court has recently restated an oft quoted rule that only when reasonable minds must inevitably conclude that the mover for summary judgment is entitled to a judgment as a matter of law on the facts before the court is a summary judgment warranted. Chiasson v. Domingue, 372 So.2d 1225 (La.1979). Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve any disputed facts. Although the facts presented in support of and in opposition to the motion for summary judgment in the Chais-son case were undisputed, those facts did not show that the mover was entitled to judgment as a matter of law.

In the case at bar, Exxon was required to show that the job of converting a facility like the ethyl alcohol unit to a facility like the isopropyl alcohol unit was a part of the regular trade, business or occupation of Exxon. La.R.S. 23:1061. Exxon’s affidavits showing that the installation of orifice flanges was a regular chore ordinarily done by employees of Exxon does not answer the question. Neither does the affidavit which states that Exxon had the capacity to design the entire expansion project. The pertinent material fact in this litigation is whether Exxon in the normal course of its trade, business or occupation regularly constructs conversion projects of this magnitude. The fact that Exxon has employees on its payroll who are capable of installing orifice flanges or doing other particular tasks which could be associated with a major conversion project does not satisfy the inquiry.

In Reeves v. Louisiana and Arkansas Railway Company et a1, 282 So.2d 503 (La.1973), the Supreme Court found that although Humble Oil and Refining Company had 1200 employees in its mechanical division, a majority of which engaged in maintenance work, it was not Humble’s business practice to engage in new construction of the type and magnitude involved in that case. The court held that Humble was not the statutory employer of an employee hired by another company for the construction of a new petroleum coking unit on Humble’s premises. The court found that Humble was primarily an operating or refining company and that Humble had never designed a coking unit or any comparable plant. Humble had neither the design capability nor the manpower available for such work.

In Boudreaux v. Boudreaux, 369 So.2d 1117 (La.App. 1st Cir. 1979), writ refused, 371 So.2d 615 (La.1979), this court found statutory employer status because the employee was engaged in routine maintenance work which was a part of the regular business of the chemical plant at which the plaintiff was working. The court mentioned the “well established ... general rule” that routine repairs and maintenance, as compared to new or additional construction, are part of the regular business of a manufacturing plant. The distinction, therefore, was drawn between repairs and maintenance vis-a-vis new and additional construction.

Likewise, in Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978), the court found statutory employer status because the plaintiff was engaged in routine maintenance and repair work at Sun Oil’s Sweet Bay Lake oil production facility. The fact that Sun used its own employees to perform maintenance and repair work at similar facilities and the fact that without periodic repair and continuing maintenance the production facility could not be properly operated were factors influencing the court’s decision. The court stated “that there is no essential dispute as to the fact that maintenance and repair services performed at Sweet Bay Lake by [plaintiff’s employer] were part of the [defendant’s] ‘trade, business or occupation.’ ” 362 So.2d at 764.

Exxon’s counsel relies particularly upon the case of O’Keefe v. Warner, 267 So.2d 920 (La.App. 1st Cir. 1972). In O’Keefe, this court held that a plaintiff who was injured while doing certain demolition work at a chemical plant in Baton Rouge was a statutory employee of the company which owned the plant. The plant owner had filed an affidavit stating that it “operates, maintains, dismantles, modifies and expands the chemical plant with its own employees.” 267 So.2d at 920. The court noted that the plaintiff failed to present opposing affidavits to contravene the assertion by the plant owner that dismantling jobs similar to that being done by the plaintiff’s principal employer were routinely done by the plant owner’s employees. The court went on to hold that the plant owner fell squarely within the purview of La.R.S. 23:1061.

Exxon on appeal attempts to rely not only on the affidavits it submitted in connection with its motion for summary judgment but also on the depositions the plaintiff sought to have introduced in connection with the plaintiff’s motion for a new trial. As we held earlier, these depositions do not form part of the record on appeal. Neither Exxon nor the plaintiff can rely on the depositions which were submitted by the plaintiff in connection with the motion for new trial. This appeal on the trial court’s sustaining of the motion for summary judgment will be decided on the evidence which was in the record at the time the trial court rendered its judgment on the motion for summary judgment. As indicated earlier, the only evidence before the trial court was Exxon’s three affidavits and the two depositions which dealt mainly with the facts of the accident.

There is no essential dispute that maintenance and repair services performed by non-Exxon employees at Exxon’s chemical plant are part of Exxon’s trade, business or occupation. This statement, however, does not answer the question of whether Exxon’s trade, business or occupation includes a major reconversion of one type of alcohol production facility into another type of alcohol production facility. There is no evidence in the record before us as to whether Exxon regularly engaged in the business of converting its production facilities from one type of unit to another. Although one affidavit stated that Exxon had the design capacity to design the entire expansion project, the same affidavit noted that Exxon chose to contract out some of that work because Exxon design personnel were needed elsewhere.

As noted above, the plaintiff filed no countervailing affidavits or other evidence to show that there was a genuine issue of material fact. But even if the opposing party does not show that there is a genuine factual dispute, the party moving for a summary judgment must bring forth sufficient evidence to show that it is entitled to a judgment as a matter of law. Chaisson v. Domingue, supra. To be entitled to judgment as a matter of law in this case, Exxon had to prove that reconversion projects of the type at issue in this case were regularly done as a part of Exxon’s trade, business or occupation. This case is distinguishable from the O’Keefe case, supra, because in O’Keefe, the chemical company submitted an affidavit to the effect that it regularly operated, maintained, dismantled, modified and expanded the chemical plant with its own employees. Exxon introduced no such affidavit in the case at bar. While we find that there is no genuine issue of material fact, we must also find that Exxon has not proven that it is entitled to a judgment as a matter of law.

Inasmuch as we reverse the decision of the trial court and remand for further proceedings, we pretermit any discussion on the constitutional issue.

The trial court’s decision granting summary judgment in favor of Exxon is therefore reversed. This case is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against Exxon.

REVERSED AND REMANDED.

PONDER, Judge,

concurring.

I concur.

I do not agree that the depositions of Arbour Tebbe and Mitchell should not be considered.

The minute entry reads as follows:

“FRIDAY, MAY 16, 1980: This matter came on for hearing on application for new trial filed on behalf of plaintiff. Documentary evidence was introduced, arguments were had by counsel, the matter submitted to the Court and was by the Court taken under advisement.”

The reasons for judgment read as follows:

“A motion for new trial came on for hearing on May 16, 1980, at which time certain depositions were filed. The Court after reading the depositions does not find that a new trial should be granted, accordingly the motion for new trial is denied.
June 12, 1980.”

The practical effect of what the court has done is that it granted a partial new trial, considered the affidavits and then decided that the result should not be changed.

After reading the depositions, however, I agree that they do not change the result.

Paraphrasing a statement in Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978), I agree that Exxon has not proved that it “and other [refineries] regularly perform the same type work at other facilities as part of their business with their own employees.”

I therefore concur.

      . This action was brought originally by Eulice C. Blount; his wife was later appointed as his curatrix and was substituted as the proper party plaintiff. We will refer to Blount as the plaintiff.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Mildred N. WATSON v. Willis Leroy WATSON.
    No. 13999.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    L. B. Ponder, Jr., Amite, for plaintiff.
    W. Hugh Sibley, Greensburg, for defendant.
    M. Lamarr Clemons, Amite, notary.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

A notary took the inventory of community property and valued the assets at $320,-000.00. The trial court set the notary’s fee at $1,650.00 — about one half of one percent of the total inventory — and assessed the fee as costs to be split between parties. The wife appeals, claiming that the fee should be only $500.00 and should be charged solely to her husband.

Under La.R.S. 9:1423, the trial court is charged with the responsibility of fixing the fees of notary publics who take inventories, and such fees are to be taxed as costs. Under La.C.C.P. art. 1920 a trial court may render judgment for costs against any party as it considers equitable. As a general rule, costs are usually paid by the party cast but the trial court has discretion in cases such as the one at bar to assess costs equally between the parties.

We find no error in the trial court’s setting of the notary’s fee and assessing that fee equally between the parties.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The appellant will pay the costs of this appeal.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Succession of Felix Anthony RIGGIO.
    No. 13954.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Granted May 1, 1981.

      Iddo Pittman, Jr., Hammond, counsel for plaintiffs.
    Timothy R. Higgins, Amite, counsel for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Felix Anthony Riggio died on May 29, 1978. On April 6,1979, one of Riggio’s ten children, Anna Riggio Cannizzaro, alleging that Riggio had died intestate, petitioned to be appointed administratrix of the estate. Mrs. Cannizzaro complied with all the legal requisites and was confirmed as administra-trix on that same day.

On June 13, 1979, the administratrix, together with eight of decedent’s other nine children, filed a “petition for declaratory judgment and in the alternative for collation(.)” Peter Riggio, the tenth child, was named as defendant. It was alleged that in 1961, decedent, Felix Riggio, sold one and a quarter acres of land to one Edward H. Hayden and that the proceeds were given to Peter Riggio. It was further alleged that defendant had, in 1970, formally renounced all inheritance rights in the succession of his mother, Mary Christina Riggio, who had died in 1962. Petitioners prayed for a declaratory judgment that defendant had no further interest in the assets of his father’s succession, his full share having already been received as a donation inter vivos. In the alternative, petitioners sought to make defendant collate the monies donated to him by decedent.

Defendant answered with a general denial. Then, as plaintiff in reconvention, defendant alleged that he possessed the last will and testament of decedent, dated March 31, 1976, and prayed for both the removal of Anna Cannizzaro as administra-trix and probate of the purported will.

All issues were joined when the adminis-tratrix answered, claiming that the purported will was invalid both because decedent lacked testamentary capacity and because certain provisions of the will were ambiguous.

Following trial, judgment was signed decreeing that:

1) Anna Cannizzaro’s application for administration was premature,
2) the purported last will and testament of decedent had not been probated and that another hearing was required,
3) the lack of decedent’s testamentary capacity had not been proven,
4) collation was not before the court, and
5) a proper petition for probate of the will must be filed.

Anna Cannizzaro and her eight fellow plaintiffs appeal. We reverse in part.

I. APPOINTMENT OF ADMINISTRATRIX

Regardless of either the existence or validity of decedent’s purported last will and testament, the original appointment of Mrs. Cannizzaro was not premature. Over a year passed between the demise of Felix Riggio and the application of his daughter to be administratrix. No petition for notice of application for appointment had been filed. LSA-C.C.P. Art. 3091. Nobody else had applied to be administrator. Nor was there any opposition to plaintiff’s appointment. The original appointment of Mrs. Cannizzaro was, therefore, quite proper.

II. REMOVAL OF ADMINISTRATRIX

Peter Riggio’s introduction of decedent’s alleged last will raises the issue of whether Mrs. Cannizzaro should be maintained as administratrix since the purported will names Peter Riggio as succession representative.

An administrator may be removed for various reasons and offenses. LSA-C.C.P. Art. 3182. Succession of Voland, 296 So.2d 406 (La.App. 4th Cir. 1974), writ refused 300 So.2d 184 (La.1974). One basis for removal is that the succession representative “is or has become disqualified^)” Mrs. Cannizza-ro has, in no way, caused herself to be disqualified.

Nevertheless, the discovery of a will is cause to reopen a succession after a succession representative has been discharged or after acceptance by the heirs or rendition of a judgment of possession, provided the will is presented by petition within five years of the succession’s judicial opening. LSA-C.C.P. Arts. 3393, 2893. Succession of McLendon, 383 So.2d 55 (La. App. 2nd Cir. 1980). Similarly, while no article in the Code of Civil Procedure specifically deals with the situation presented here, the timely discovery and probate of a valid will naming an executor is cause to replace an administrator, duly appointed under the mistaken belief that the decedent died intestate.

Although defendant took no part in, nor did he oppose, the administration of Anna Cannizzaro, he is nevertheless enti-tied, after the appropriate proceedings, to have her replaced as succession representative.

III. VALIDITY OF THE WILL

Holding that since the purported last will of decedent had not been properly probated and that another hearing was required, the trial court ordered that a petition for probate be filed. The trial judge also ruled on the challenged will’s validity insofar as he found that plaintiffs had not proven a lack of testamentary capacity in the decedent.

Testamentary capacity is always presumed until the contrary is affirmatively established by satisfactory and convincing evidence. Succession of Bush, 292 So.2d 915 (La.App. 1st Cir. 1974), writ denied 294 So.2d 837 (La.1974); Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). Capacity is tested as of the time the will was made. LSA-C.C. Art. 1472; Stewart v. Branch, 250 So.2d 474 (La.App. 1st Cir. 1971), writ denied 259 La. 905, 253 So.2d 224 (1971), and the burden of proving lack of capacity rests on the party alleging it. Woods v. Society for Propagation of Faith, 251 So.2d 438 (La.App. 1st Cir. 1971), writ denied 259 La. 897, 253 So.2d 221 (1971). The degree of proof required to overcome the presumption of testamentary capacity is similar to that required to overcome the presumption of innocence in favor of a person being tried for a crime. Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir. 1979), writ denied 379 So.2d 15 (La.1980); Succession of Brown, 251 So.2d 465 (La. App. 1st Cir. 1971).

A careful review of the entire record convinces us that plaintiffs failed to prove that on March 31, 1976, the date on which decedent made his last will, Felix Riggio did not possess testamentary capacity-

On March 31, 1976, the same day as the challenged will was made, Dr. J. DeLoach Thames, decedent’s treating physician, certified that Mr. Riggio was “now totally unable to care for himself and is physically and mentally incapable of giving a deposition or testifying.” The certificate was honored and decedent’s scheduled deposition in a matter closely related to the present one, Succession of Riggio, Docket No. 12,514 (La.App. 1st Cir. 1980), was can-celled.

Dr. Thames testified to the accuracy of his March 31, 1976, opinion and stated that while decedent was sometimes able to recognize him (Dr. Thames) after being informed of his (Dr. Thames’) identity, decedent was not capable of making a last will and testament on the date in question.

Mrs. Cannizzaro’s testimony supported that of Dr. Thames.

Despite the testimony of Dr. Thames and Mrs. Cannizzaro, and despite the failure of defendant to testify, it is evident that plaintiffs have not carried their burden of proof.

In Succession of Riggio, supra, decedent was relieved of the burden of being deposed. Nevertheless, on March 22,1978, the same attorney who had earlier prevented the taking of Mr. Riggio’s deposition, chose to take his deposition. That deposition, taken two years after decedent had been certified unable to be deposed and only sixty-nine days prior to his death, is most revealing. Felix Riggio, while obviously frail and beset by numerous ailments, many connected with his advanced age of eighty-nine years, was lucid beyond a doubt. He recalled and recounted, in detail, financial matters associated with his son, Peter, which had occurred over many years. Mr. Riggio, though elderly and infirm, was obviously in possession of his faculties.

We have no doubt that not only have plaintiffs failed to prove that their father lacked testamentary capacity but also that, in fact, Felix Riggio had capacity and did make a valid will on March 31, 1976.

IV. COLLATION

A demand for collation must be brought as an incident to a succession proceeding. Blossman v. Olsen, 365 So.2d 545 (La.App. 1st Cir. 1978), writ denied 365 So.2d 1374 (La.1978); Owen v. Owen, 336 So.2d 782 (La.1976). The trial court found that collation was not properly at issue and failed to rule on it. While the issue should have been decided on original hearing, no irreparable harm has occurred and the matter will be decided on remand.

SUMMARY

For the foregoing reasons, that part of the judgment appealed from which found Anna Cannizzaro’s application for administration to be premature is annulled and reversed. It is hereby adjudged, ordered and decreed that Anna Cannizzaro has been and is the administratrix of the succession of Felix Anthony Riggio, subject to replacement on the timely presentation and probate of a valid will.

Those parts of the judgment requiring that a proper petition for probate be filed and that a proper hearing for proving the testament be held are affirmed.

That part of the judgment finding that plaintiffs failed to prove their father’s lack of capacity is affirmed.

That part of the judgment holding that collation was not before the court is annulled and reversed. It is hereby adjudged, ordered and decreed that the question of collation is to be decided on remand in conjunction with the probate hearings.

All costs are to await a final determination on the merits.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Had the will been brought forward prior to plaintiffs appointment, this issue would not have arisen and decedent’s wishes would have prevailed. LSA-C.C.P. Art. 3083.

      . While there is little doubt that defendant knew of plaintiffs administration, the adminis-tratrix was under no obligation to notify him of her appointment since he did not formally request notice. LSA-C.C.P. 3091. Succession of Smith, 219 So.2d 291 (La.App. 3rd Cir. 1969).

      . We cannot deprive Peter Riggio of his right to be executor under the will. That he has interests contrary to those of other heirs is not a ground to find him unfit to be executor. LSA-C.C.P. Art. 3097(6). Succession of Browne, 244 La. 36, 150 So.2d 555 (1963).

      .Defendant did not appear at trial and no witnesses were called on his behalf. The purported will was sought to be probated by affidavits only, an improper procedure since the will was under attack. LSA-C.C.P. 2887.
      Regardless of whether the will was probated or not, it was admissible as evidence and could be considered in determining whether the party proposing or opposing the will had a right of action or whether the will would prevail as against other purported wills or as against the claim (as in the present case) that decedent died intestate. David v. David, 347 So.2d 885 (La.App. 3rd Cir. 1977); Succession of Feitel, 187 La. 596, 175 So. 72 (1937).

      . Those financial matters were the same ones as are at issue in the present case.

      . Also to be decided on remand is the matter of which Felix Anthony Riggio is referred to by decedent’s will.


text:
    Standord J. LEVY, Jr., Miriam Levy Lichentag, Marie Louise Levy Steuer, Sidney G. Roos, and Leo S. Roos v. GERMANIA PLANTATION, INC. and Victor Schexnayder.
    No. 13959.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      R. Ryland Percy, Percy & Percy, Gonzales, for plaintiff-appellee.
    Miriam T. Attaya, Attaya & Bell, Gonzales, for defendant-appellant.
    Sidney A. Marchand III, Talbot, Sotile, Carmouche, etc., Donaldsonville, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.

      . Suit was erroneously filed in behalf of Stan-dord J. Levy, Jr. The party actually involved was Stanford J. Levy, Jr.

   EDWARDS, Judge.

Victor Schexnayder appeals a trial court judgment denying his claim of acquisitive prescription of certain Ascension Parish property. We affirm.

We adopt as our own the excellent opinion of Judge Becnel.

REASONS FOR JUDGMENT

“This matter comes before this Court based on a possessory action filed on behalf of STANFORD J. LEVY, JR., MIRIAM LEVY LICHENTAG, MARIE LOUISE LEVY STEUER, SIDNEY G. ROOS, AND LEO S. ROOS. The plaintiffs alleged that their peaceful possession of a tract of land containing thirty (30) acres located in Ascension Parish, Louisiana, in Sections 69, 72, and 77 of Township 10 South, Range 2 East had been disturbed by the recordation of mineral leases covering the property which had been granted by each of the defendants, VICTOR SCHEXNAYDER and Ger-mania Plantation, Inc. Defendants answered each claiming ownership and possession of the tract in question. Both defendants claimed ownership based on the principle of thirty (30) years acquisitive prescription contained in articles 3499 et seq. of the Louisiana Civil Code.

This Court is satisfied that the plaintiffs have, through various documents, established record title to the properties involved in these proceedings. Neither defendant attempted to contravene the claim of the plaintiffs that they and their predecessors in title had record title to the property; the record title in plaintiffs is therefore judicially admitted. Unless the defendants possessed the property to the extent required by law to establish ownership by adverse possession, this court is bound to grant plaintiffs the relief prayed for.

During the course of the trial, defendant, Germania, Inc., attempted to prove physical possession of the property vicariously through co-defendant Victor Schexnayder. Germania, Inc. contended that their possession was through Victor Schexnayder, a lessee of Germania Plantation, Inc. Throughout the trial Germania, through its representative, Douglas Hayward, supported the contention of defendant, Victor Schexnayder, that he, Victor Schexnayder, physically possessed the property in question along with other lands adjacent to and adjoining the subject lands, which adjacent lands formed part of a larger tract owned by Germania. Schexnayder readily admitted being a lessee of Germania, Inc. and being in physical possession of lands as lessee of Germania lying to the North and East of the lands made subject of this lawsuit. He contended however that as to the lands made subject of the lawsuit, he did not work, cultivate and possess those lands as lessee of Germania. The nature of that possession and its legal consequences is the ultimate question this court is called upon to decide.

The lands made subject of this lawsuit were described in plaintiff’s petition as follows, to wit:

(1) All of Farm Lots 188 ad 189 of Farm Subdivision No. 37 as designated on a map or plat of survey made by Frank T. Payne, dated March, 1911, a copy of which is recorded in the Conveyance Records of Ascension Parish, Louisiana, said lots being situated in Sections 69 and 72, Township 10 South, Range 2 East, containing a total of 9.0 acres, more or less.
(2) A certain tract or parcel of land containing 23 acres and being a fractional portion of Lot 2 of Section 77, Township 10 South, Range 2 East, being situated in Ward No. 6 in the Parish of Ascension and being the identical property acquired by E. P. Brady from John C. Klos on the 7th day of June, 1922 and recorded in C.O.B. 63, folio 421, in the official records of the Parish of Ascension, Louisiana.

The uncontradicted testimony of all of the parties as well as exhibits offered and made part of the evidence, indicates that the 23 acres of item number (2) above described lies immediately to the South and West of a large tract of land to which record title lies in Germania Plantation, Inc.

The record also supports the finding that the 9.0 acres in item (1) are adjacent to and to the southwest of this 23 acre tract, the exact location of which was either by design or otherwise, never established to the satisfaction of this Court with legal certainty by the respective parties. For reasons hereinafter shown, except for a certain portion of that tract, the establishment of the exact location of the entirety of the nine acres is irrelevant to the adjudication of this lawsuit.

It should be noted at the outset that plaintiffs did not show where they exercised any acts which would constitute physical possession of the lands to which they established proof of having record title. Mr. Stanford Levy, Jr., one of the plaintiffs and the only one called to testify admitted that neither he or any of his co-owners ever fenced the property; that it was not cultivated or used for cattle grazing by him or his co-owners; that none of the plaintiffs or their predecessors cut timber or exercised any physical acts of ownership over or on the subject property. In fact the only direct involvement Mr. Levy had with the property was to visit it on several occasions, beginning when he was a young boy when he accompanied his father, to 1973 when he visited the property when an oil well was being drilled on the 23 acre tract and shortly prior to trial when he went to visit the tract with his attorney preparatory to this lawsuit.

As part of its case, defendant Germania employed the services of Vincent Pizzolato, a registered land surveyor to make a physical survey of the property claimed by it, which plat of survey was introduced in evidence by Germania as ‘Germania 1’. Mr. Pizzolato testified that according to his physical examination of the property he was called upon to observe, he found the property to be bounded on the north by a body of water about 30 to 40 feet in width known as Bayou Conway, on the East by a canal which was referred to as the Mar-chand Canal, on the south by what appeared to be evidence of an old fence, and what this Court found as utter confusion as to the West side. Although Mr. Pizzolato testified that his survey was a physical survey, i. e., he was noting on his plat what he observed, he nonetheless plotted an imaginary or assumed section line running from one confirmed grate bar to the north of Bayou Conway and one confirmed grate bar to the south or what would be presumed to be the Southwest corner of the 23 acre tract. On his plat Mr. Pizzolato shows what purports to be old Bayou Conway to the west of the tract but slightly to the east of the assumed section line. He then shows what he indicates to be a ditch connecting Bayou Conway to what he shows as a canal, all lying somewhat west of his assumed section line.

In his testimony, Mr. Pizzolato testified that he saw the fences as indicated on his plat; that the fences were barbed wire fences attached mostly from tree to tree and except for along Bayou Conway, the fences generally surrounded the tract which the court assumes constituted part or all of the 23 acre tract. Under cross Pizzolato testified that the fences were in state of disrepair in certain areas with no evidence of recent maintenance. He did state however that there were cattle footprints on the premises.

Mr. Douglas Hayward was then called to testify on behalf of Germania. Mr. Hayward is 52 years of age and part owner as well as manager presently of Germania. Mr. Hayward testified that the property involved in the lawsuit was immediately to the rear and in the southwest corner of Germania Plantation; that it formed part of the wooded or rear lands of Germania which was for many years leased to defendant Victor Schexnayder. According to his testimony and exhibits Germania Plantation, Inc. was and is to this date the record owner of lands to the north and to the east of the tracts involved. According to Hayward, the acreage under dispute was occupied by defendant Victor Schexnayder for a period in excess of 40 years but as a tenant of Germania. He did not attempt to dispute the fact that Schexnayder had the property under fence as alleged by Schex-nayder. Hayward claimed that Germania sold timber from the 23 acre tract during 1963 to 1964 through his father. (This fact was disproved by the testimony of all the parties, including that of Mr. Willard J. Cointment, a registered land surveyor employed by plaintiffs who visited the tract prior to trial.) Hayward testified that defendant Victor Schexnayder had acknowledged to him that the 23 acres he was using in his cattle operation along with the other lands of Germania to the North of Bayou Conway and to the East of Marchand Canal also belonged to Germania; that he had even been brought to the property by Schexnayder during 1969 in connection with an oil well which was being drilled slightly to the West of the tract as possibly being on Germania lands.

This court is unable to accept the allegations of Germania that Schexnayder was occupying and using the 23 acre tract as tenant of Germania. The court accepts Mr. Hayward’s testimony insofar as it supports the fact that Schexnayder was occupying the 23 acre tract and that section of additional property to the west of the assumed section line shown by Pizzolato on the Germania plat to the canal and ditch, all as part of his larger cattle operation which included lands to the north and east to which Germania had record title. Mr. Hayward also testified as had Pizzolato, as to seeing an area of approximately ten acres along the north side adjacent to Bayou Conway which had evidently been cleared and cultivated for many years. The only direct involvement of the land in dispute by Ger-mania was the oil lease granted by it some three years ago when conflicting claims were made to the property. The court concludes that the Germania claim of possession through Schexnayder as its tenants is not supported by the facts.

The court will now consider the claim of Victor Schexnayder. This court has no doubt whatsoever that Victor Schex-nayder occupied the entirety of all of the lands included with the perimeters of Bayou Conway to the north, the Marchand Canal to the East, the fence line to the south as shown on exhibit ‘Germania T and old Bayou Conway, the ditch leading to the old steam water pump, and the canal along the west line. The evidence is clear that certain portions of that area measuring about ten acres were cleared some forty to fifty years ago; that the remainder was under fence individually or with a greater fenced in area with included lands admitted by Schexnayder to have been leased by him from Germania. Mr. Schexnayder testified emphatically however that this particular property did not belong to Germania. He stated that this acreage was never logged when the Germania property he had under lease was logged. He denied ever telling Mr. Hayward that the land described above belonged to Germania. Schexnayder’s testimony was emphatic that when he first went on the 23 acres and started using it he never knew who the record owners were; that from around 1917 to date no one ever claimed or exercised acts of ownership of the tract. He testified that he exercised complete occupancy of the tract by farming part of it and keeping the remainder under fence; that he had a bridge over Bayou Conway to the North and one over Mar-chand Canal to the east so that his cattle would be moved from this tract to the property he leased from Germania to the North and to the East. Schexnayder further testified that he paid no rentals to anyone for the use of this property, the he never had occasion to assert ownership of the tract and that the only time the question of ownership arose was when he was approached by a representative of the oil company in connection with the oil lease he granted in 1977 which precipitated the present lawsuit. Schexnayder testified that when he was approached by a representative of the oil company, he, the oil company representative, opened his eyes to the fact that his occupancy of the tract gave him a claim to it. The plaintiffs introduced evidence to show that although Schexnayder had executed oil leases in previous years on property to which he held record title in the immediate vicinity (some 10 acres distance away) that no oil lease had been granted by him on this acreage notwithstanding the fact that several wells had been drilled in close proximity to the tract. The plaintiffs also showed that the property had been forfeited for non-payment of taxes by the record owners after due advertisement in the official journal of Ascension Parish; had been redeemed by the record owners, all to establish that Schexnayder never concerned himself, prior to being approached by the oil company representative, about ownership. The Court concludes from the evidence that although Schexnayder occupied the lands continuously and without interruption from 1917 to date he, according to his own testimony, was never required to consider the question of ownership until approached in 1977 for an oil lease.

Mrs. Victor Schexnayder, when called as a witness, basically substantiated her husband’s occupancy of the land. Mr. W. I. Duplessis, a neighbor and resident of the Darrow area where the subject lands are located testified generally as to Schexnay-der’s occupancy of the subject lands although he was unable to testify with certainty as to which lands occupied by Schex-nayder in his cattle operations was owned or leased by him. Mr. Kerney Sheets, another witness called by Schexnayder, testified that he married Schexnayder’s daughter in 1948; that from that date to this date he had been intimately involved with the property made subject of this lawsuit. His testimony was direct, clear and concise. Mr. Sheets corroborated Mr. Schexnayder’s testimony as to the occupancy of the land involved herein. It was Mr. Sheets testimony that his father-in-law’s every behavior was that as owner of the tract; that he considered it his father-in-law’s property; that he never knew of anyone else claiming to be the owner of the tract.

The Court must now decide if these findings of fact are sufficient to vest ownership to the property, within the limits of the physical boundaries heretofore referred to, in Victor Schexnayder. As to any portion of the property included in the legal description in plaintiff’s petition not included within the physical boundaries referred to herein, this court concludes that defendant Schexnayder has not established occupancy hereto. (This court has no way of knowing how much of the property is included or excluded without a formal survey.)

Our law in Louisiana permits one to acquire ownership of real property by virtue of thirty (30) years acquisitive prescription.

Civil Code Article 3499 provides as follows:

The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.

Article 3500 provides as follows:

The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.

Article 3488 provides this:

As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.

Of equal importance is another article which provides:

Art. 3436. Essentials of possession
Art. 3436. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.

As heretofore indicated, the court is convinced that Mr. Schexnayder has exercised continuous and uninterrupted possession of that portion of the subject lands for a period well in excess of forty years. The problem that the court has is determining the nature of that possession.

Defendant Schexnayder was very honest and forthright throughout his testimony. He readily admitted that at the time his father before him took physical possession of the property they did not know who owned the land. They knew, of course, that it did not belong to them. We do not have here a case of a claimant possessing property belonging to others which through error claimant believes to be his. The evidence indicates that the possession exercised over this tract was almost identical to which a claimant would exercise over similar property to which he had title. Because of its isolation, defendant testified that the question of ownership never presented itself. According to his testimony, defendant claimed it was never required of him that he assert ownership during his many years of uninterrupted possession; the record owners never having made an appearance. Under cross examination defendant admitted that he had never posted the property and that he had not paid taxes on the property.

Counsel for Schexnayder takes the position that under Article 3488 of the Civil Code, which provides that squatters possess in their own name since they do not possess in the name of or for another, (emphasis added) Schexnayder’s possession was that as owner. Counsel further correctly contends that fact of possession creates a presumption that possessor possessed as master and owner in regard to prescription of thirty years.

The difficulty with that position, however, is that while this is a strong presumption under our law, (See Theriot v. Bollinger, 172 La. 397, 134 So. 372 and Dunn v. Bayonne, La.App., 197 So. 284), that presumption will yield to possessor’s own testimony that he did not intend originally to possess the property as owner. In the case of Humble v. Dewey, La.App., 215 So.2d 378, the possessor testified substantially as did Mr. Schexnayder in this case. Mr. Schexnayder stated on three different occasions during the trial of the case that while he was possessing the property in the same manner as he would have if he had had record title, he did not consider himself as owner until he was approached for an oil, gas and mineral lease some three years ago. Mr. Schexnayder stated in so many words that the oil company representative opened his eyes to the fact that his possession gave him a claim to the property.

The case of Crichton v. Krouse, La.App., 142 So. 635, cited by Schexnayder and decided in 1932 dealt with facts very similar to the case at bar. In that case, the intent of the claimant to possess as owner was inferred from the acts and conduct of the claimant. The claimant’s children had brought the action to have their father’s possession recognized. There the court said intention was a fact question to be determined by the trier of facts from all of the evidence submitted. However, this court feels that where the claimant personally appears and testifies as to his intention the trier of facts is bound by his judicial admission, notwithstanding other facts and evidence, which in the absence of claimant’s admissions, would have constituted an acceptable basis to conclude that claimant’s intention was to possess as owner.

Mr. Schexnayder’s candor and that of his attorney must be commended. Without this damaging admission by Mr. Schexnay-der, in direct examination as well as under cross, his claim was in perfect posture for him to reap the benefits of the presumption which our law grants unto a possessor. If Mr. Schexnayder had not testified or if he had chosen to lie, this Court would have been bound to grant him judgment. Failing to post the property, failing to pay taxes or to have had occasion to otherwise assert ownership under the facts as presented would not have been controlling. Although the Court has some degree of difficulty in fitting the facts of this case precisely under the rule of Humble v. Dewey, supra, and the long list of cases cited therein, the Court somewhat reluctantly concludes that it is duty bound to so do.

The Court therefore concludes that Mr. Schexnayder failed in this suit to establish his intention to possess the subject property as owner (emphasis added) for the time required to vest ownership in him.”

For the foregoing reasons, the trial court judgment is affirmed. All costs in the trial court are to be paid by Germania Plantations, Inc., and Victor Schexnayder. All costs of this appeal are to be paid by Victor Schexnayder.

AFFIRMED.

      . Germania Plantations, Inc., was originally named as a defendant and judgment was rendered against it. No appeal was taken on Ger-mania’s behalf. Therefore, no costs of this appeal are assessed against it.


text:
    Joe E. BRIAN v. TARGET, INC. and King-Seeley Thermos Company in Solido
    No. 14058.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Stella W. Williamson, Baton Rouge, for plaintiff-appellant.
    Charles H. Braud, Jr., Baton Rouge, for defendant-appellee Target, Inc.
    Michael H. Rubin, Baton Rouge, for defendant King-Seeley Thermos Company.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Joe E. Brian, brought suit against Target, Inc., and King-Seeley Thermos Company seeking to rescind defendants’ sale to plaintiff of an allegedly defective home ice cube machine.

Target, Inc., reconvened claiming $705 in storage charges. The ice maker was alleged to have been repaired and despite knowing same, plaintiff was charged with failing to reclaim the equipment, thus triggering storage fees.

Plaintiff filed a peremptory exception of no cause of action on the ground that Target’s reconventional demand disclosed no actionable damages. Following a hearing, the trial court denied plaintiff’s exception. Plaintiff appeals. Plaintiff in reconvention has filed a motion to dismiss the appeal on the ground that the judgment appealed from was interlocutory and not appealable.

LSA-C.C.P. Art. 2083 permits appeals to be taken from either final judgments or interlocutory judgments which may cause irreparable injury. The judgment appealed from is interlocutory and not final because the merits of neither plaintiff’s nor defendant’s claims were determined in whole or part. LSA-C.C.P. Art. 1841. Furthermore, a judgment overruling an exception and requiring a defendant to go to trial does not cause irreparable harm and will not ordinarily be reviewed, save in the case where the court’s jurisdiction is at issue. Iberia, St. M. & E. R. Co. v. Morgan’s L. &T. R. & S. S. Co., 129 La. 492, 56 So. 417 (1911); Terrebonne Parish School Board v. St. Mary Parish School Board, 131 So.2d 266 (La.App. 1st Cir. 1961), affirmed 242 La. 667, 138 So.2d 104 (1961).

In the present case, plaintiff’s exception of no cause of action was overruled. Plaintiff will be forced to defend against Target’s reconventional demand. No realistic possibility of irreparable harm has been shown.

For the foregoing reasons, plaintiff’s appeal is dismissed. All costs of this appeal are to be paid by Joe E. Brian.

APPEAL DISMISSED.


text:
    In the Matter of Brandy Lynn PARKER.
    No. 14230.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Granted April 27, 1981.
    Daniel E. Becnel, Jr., Reserve, and Michael R. Tregle, Hammond, counsel for Brandy Parker.
    Douglas T. Curet, Hammond, counsel for Kim L. Parker Clement Chopin.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Appellee, Kim Lorraine Parker Clement Chopin, seeks to dismiss the appeal of Randy Joseph Parker.

A review of the record shows that on October 8,1980, the trial court gave “ORAL REASONS FOR JUDGMENT (.)” At the end of these reasons is the statement: “JUDGMENT READ AND SIGNED in Chambers, this 8th day of October, 1980.”

From this proceeding, Randy Parker appealed on October 15, 1980.

Judgment in the matter was signed on October 22, 1980.

Appellee urges that the appeal should be dismissed for prematurity.

LSA-C.C.P. Art. 1918 provides:

“A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.”

LSA-C.C.P. Art. 1911 provides:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

The document signed October 8, 1980, was clearly labeled “ORAL REASONS FOR JUDGMENT (.)” Language at the bottom stating “JUDGMENT READ AND SIGNED.” cannot rationally be construed as converting reasons for judgment into a formal judgment. Nor is “oral reasons for judgment” appropriate language with which to identify a final judgment. LSA-C.C.P. Art. 1918. Furthermore, the content of the “reasons for judgment” has no decretal language as does any ordinary judgment, including the one signed on October 22. No appeal may be taken from reasons for judgment. Pearce, ex rel. Livestock Sanitary Board v. Johnson, 250 So.2d 567 (La.App.3rd Cir. 1971).

No appeal was proper until final judgment was signed on October 22, 1980. Counsel’s explanation that “I was not aware that a Judgment had not been formally signed by the Court and it was necessary for me to submit a formal Judgment” is of no avail.

For the foregoing reasons, appellee’s motion to dismiss the appeal for prematurity is granted and the appeal is hereby dismissed. All costs of this appeal are to be paid by Randy Joseph Parker.

MOTION TO DISMISS APPEAL GRANTED.


author: PONDER, Judge.

text:
    Lionell TRIPLETT v. J. Al AMISS, Individually, and as Sheriff of East Baton Rouge Parish, Mike Sparks, Individually and as Deputy Sheriff of East Baton Rouge Parish; Sgt. John Simmons, Individually and as Deputy Sheriff of East Baton Rouge Parish.
    No. 13944.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      R. Judge Eames, Baton Rouge, Tom Withers, III, Baton Rouge, for plaintiff-appellant Lionell Triplett.
    Conrad S. Adkins, Baton Rouge, for defendants-appellees J. A1 Amiss, Sheriff E. B. R. Parish, Mike Sparks, Deputy Sheriff E. B. R. Parish, John Simmons, Deputy Sheriff E. B. R. Parish.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit in tort for damages for personal injury suffered by plaintiff while being searched by police officers. Plaintiff appeals from an award of $730.00.

The sole issue is quantum.

We affirm.

While being booked into jail on a charge of simple drunk, plaintiff was kneed in the back by defendant, Deputy Sparks, when plaintiff was uncooperative. As a result, plaintiff sustained a strain of the cervical and lumbar spine. He visited a physician on three occasions, complaining of a moderate amount of pain in the neck and back. On the last visit, four months after the incident, the physician found no objective evidence of injury. The trial court awarded plaintiff $30.00 for medical expenses and $700.00 in general damages.

Plaintiff alleges the court’s award of $700.00 is inadequate, citing numerous cases in which persons suffering from similar injuries were awarded higher damages. The trial court has much discretion in the assessment of damages. LSA-C.C. Art. 1934(3). Before a Court of Appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). Prior awards may serve as an aid in determining the insufficiency or excessiveness of an award only where the present award is shown to be greatly disproportionate to past awards for truly similar injuries. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Under the facts of this case, we find the court’s award of $730.00 is not an abuse of discretion.

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

AFFIRMED.


author: PONDER, Judge. EDWARDS, Judge,

text:
    A. I. U. INSURANCE COMPANY v. F. J. ROBERTS et ux. F. J. ROBERTS, Jr. et ux. v. Neil B. BURRIS et al.
    Nos. 13951, 13952.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Dissenting Opinion Jan. 30, 1981.
    Rehearing Denied March 16, 1981.
    Writ Granted May 1, 1981.

      James E. Moore, Baton Rouge, counsel for plaintiff-appellee, A. I. U. Ins. Co.
    Stephen K. Peters, Baton Rouge, counsel for defendants-appellants, F. J. Roberts, Jr. and Margaret B. Roberts.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment in her favor against defendant American International Insurance Company (A.I.U. Ins. Co.) that limited the uninsured motorist coverage to $5,000.00.

The sole issue is the limit of plaintiff’s uninsured motorist coverage.

We affirm.

Mrs. Roberts was injured as the resqlt of the negligence of an uninsured motorist. The court, in consolidated trials, awarded plaintiff damages in the amount of $14,-943.39 against the tortfeasor and plaintiff’s uninsured motorist carrier, A.I.U. Ins. Co., but limited A.I.U. Ins. Co.’s liability to $5,000.00. The policy had been originally issued to plaintiff with $5,000/$10,000 uninsured motorist limits. The coverage was automatically raised to $25,000/$50,000 by Act 154 of 1974 which imposed uninsured motorist coverage in an amount not less than bodily injury liability coverage. In December, 1975, plaintiff requested the uninsured motorist coverage be dropped. By oral request in January, 1976, plaintiff asked for reinstatement of the uninsured motorist coverage at limits of $5,000/$10,-000. From that time, plaintiff paid premiums on the policy at six month intervals reflecting $25,000/$50,000 liability limits and $5,000/$10,000 uninsured motorist limits. The policy in effect at the time of the accident, which occurred July 13, 1978 had been last renewed on May 2, 1978.

Plaintiff claims that because she did not consent in writing to a lesser limit, she is entitled to uninsured motorist coverage equal in amount to her bodily injury liability coverage of $25,000. LSA-R.S. 22:1406 (D)(1)(a), a part of the uninsured motorist statute, was amended in 1977 to require a rejection of uninsured motorist coverage or selection of lower limits be in writing. We do not believe that requirement to be retroactive, cf. Pierce v. Hartford Accident and Indemnity Co., 184 So.2d 241 (La.App. 1st Cir. 1966), writ denied 249 La. 201, 186 So.2d 160. Plaintiff argues, however, that LSA-R.S. 22:628 required the selection of lesser limits of uninsured motorist coverage be written to be effective.

Plaintiff cites Walker v. Coleman, 367 So.2d 395 (La.App. 2d Cir. 1979), writ denied La., 369 So.2d 1365, and LeBoyd v. Louisiana Transit Co., et al., 375 So.2d 749 (La.App. 4th Cir. 1979). The first decision could have rested on the insufficiency of proof of absence of a genuine issue of a material fact in a summary judgment proceeding. However, the court did say that because of strong public policy, proof of a waiver of such statutorily mandated coverage must be in writing to be effective, under the provisions of La.R.S. 22:628, even though the latter were not directly on point.

At any rate in Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App. 2d Cir. 1979), the same circuit held that a policy effective on June 17, 1976, did not require a new rejection or selection document attached to the policy under the terms of LSA-R.S. 22:1406 (D)(1)(a) as amended by Act 494 of 1975, if there had been a rejection or selection of lower limits. The court reasoned that the general provisions of LSA-R.S. 22:628 would yield to the special provisions of LSA-R.S. 22:1406 (D)(1)(a).

In LeBoyd v. Louisiana Transit Co., supra, the policy effective December 21, 1974 to December 21, 1975, issued prior to the effective date of Act 494 of 1975, September 12, 1975, contained no provision for uninsured motorist coverage. The parties stipulated that there had been an oral rejection. The court, reasoning that the requirement of uninsured motorist coverage was mandatory, held that the public policy considerations behind LSA-R.S. 22:628 required a rejection of such required coverage to be in writing. The provision of Act 494 of 1975 to the effect that “[S]uch coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer,” was found inapplicable because the policy had been issued prior to the effective date of the act. We therefore find LeBoyd also to be inapplicable.

Under the uninsured motorist statute, plaintiff’s uninsured motorist coverage was automatically raised to the liability of his policy. Plaintiff then rejected all uninsured motorist coverage. The following month, plaintiff specifically selected a lower coverage than imposed by law. He reaffirmed that selection at six-month intervals for the next three years.

In each instance the lower limits was evidenced by entries on the declarations page, which was in writing and attached to the policy, thus complying with the provisions of LSA-R.S. 22:628, which was the only statute then existing requiring written evidence.

We hold the policy considerations behind LSA-R.S. 22:628, the general statute, do not require the invalidation of such an oral modification of the uninsured motorist contract effective prior to the 1977 amendment to LSA-R.S. 22:1406 (D), the special statute, where the insured is aware of the options afforded to him by law and he specifically chooses a lower coverage. Cf. Breaux v. Government Employees Insurance Company, 373 So.2d 1335 (La.App. 1st Cir. 1979). The legislature did enact the statute requiring the election to be in writing. The position urged would convert this legislation into a vain and unnecessary thing.

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

AFFIRMED.

EDWARDS, J., dissents and will assign reasons.

EDWARDS, Judge,

dissenting.

On July 13, 1978, plaintiff, Margaret B. Roberts, was injured in an automobile accident caused by the negligence of Neil B. Burris, an uninsured motorist. Suit was brought against Burris and American International Insurance Company (A.I.U.), the uninsured motorist carrier of Mr. and Mrs. Roberts. Following trial, Burris was cast for $14,000 in damages plus interest and costs. The award against A.I.U. was limited to $5,000 because the trial court found that, despite carrying $25,000 in bodily injury liability coverage, plaintiff had chosen to carry only $5,000 of uninsured motorist insurance. Plaintiffs appealed.

In affirming the trial court judgment, an affirmation which effectively limits Mrs. Roberts’ recovery to some $9,000 less than that actually awarded, the majority has both misconstrued the statutory provisions relating to uninsured motorist coverage and chosen to ignore the jurisprudence, albeit imprecise at times, interpreting those provisions.

Uninsured motorist coverage, by nature wholly statutory, reached its present state only after years of legislative meandering. Despite seemingly innumerable changes in particular definitions, evidentiary presumptions and procedural mechanics, one principle has remained steadfast — that insurance shall be made available to all drivers as a means of compensation in the event they are injured by the negligent vehicular operation of other drivers, both uninsured and underinsured.

Act 137 of 1972, effective January 1, 1973, required all liability policies issued or delivered in Louisiana to provide uninsured motorist coverage in an amount not less than that required by the Motor Vehicle Safety Responsibility Law unless “any insured named in the policy shall reject the coverage.”

Act 154 of 1974, effective July 31, 1974, required the coverage provided to equal the limits of bodily injury liability carried unless “any insured named in the policy shall reject the coverage or selects lower limits.”

Act 494 of 1975, effective September 12, 1975, retained the prior coverage requirement but provided that such “coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.”

Act 438 of 1977, effective September 9, 1977, continued the same coverage provisions but required that any rejection or lower limit selection by the insured be in writing. The Act further provided that when any such valid rejection or selection was made, it would be conclusively presumed a part of the policy, even though not physically attached to same.

In the present case, plaintiffs obtained $25,000 in bodily injury coverage and $5,000 in uninsured motorist protection on June 6, 1974. On July 31, 1974, as a result of Act 154 of 1974, plaintiffs’ uninsured coverage was automatically increased to $25,000. On December 6, 1974, pursuant to Mr. Roberts’ oral request, UM coverage was deleted. On January 15, 1975, pursuant to another oral request, UM was added in the lower limit of $5,000 (in contrast to the bodily injury limit of $25,000). Nothing further passed between plaintiffs and A.I.U. and the policy was renewed every six months with the latest renewal dated May 2, 1978.

This case turns on two questions. First, were plaintiff’s oral requests of December 6, 1974, and January 15, 1975, sufficient to constitute a rejection and lower limit selection, respectively. Second, presuming the oral requests sufficient, were the rejection and lower limit selection operative as to policy renewals absent further communication from the insured. The trial court and a majority of this court answer both questions in the affirmative. I cannot agree.

Until Act 438 of 1977 mandated that rejection or lower limit selection of UM coverage be in writing, LSA-R.S. 22:1406 D, standing alone, required no specific mode of rejection or lower limit selection. However, the general insurance law, LSA-R.S. 22:628, which controls in the absence of a particular rule, provided that, to be valid, any agreement in conflict with, modifying, or extending the coverage of an insurance policy must be in writing and physically attached to or incorporated in the policy by specific reference.

Clearly, to be valid, any rejection or lower limit selection prior to September 9,1977, must have been both in writing and attached to the policy or incorporated by specific reference. Because A.I.U. did not require plaintiffs to reduce the oral requests of December 6, 1974, and January 15, 1975, to writing and attach same to the policy, those requests cannot operate to relieve A.I.U. of the legal obligation imposed by Act 154 of 1974 to provide $25,000 in UM coverage, the amount equal to plaintiffs’ bodily injury liability provision.

LeBoyd v. Louisiana Transit Company, 375 So.2d 749 (La.App. 4th Cir. 1979), is directly in point. An insured whose policy was written under the strictures of Act 154 of 1974 attempted to orally reject UM coverage. The appellate court, holding that R.S. 22:628 applied “because rejection conflicted with the coverage” required by R.S. 22:1406 D, found the oral rejection ineffective.

The majority, noting that Act 494 of 1975 was not yet applicable to plaintiff’s policy in LeBoyd, nevertheless concludes “We therefore find LeBoyd also to be inapplicable.” I am mystified how the majority can, by facile reliance on an irrelevant fact, completely ignore jurisprudence contrary to its position.

Walker v. Coleman, 367 So.2d 395 (La. App. 2nd Cir. 1979), writ denied 369 So.2d 1365 (La.1979), also involved the applicability of R.S. 22:628. In Walker, the UM carrier’s motion for summary judgment was sustained on the ground that plaintiff had orally rejected UM coverage. In reversing, the court of appeal stated “We therefore hold that proof of a waiver of such statutorily mandated coverage must be in writing to be effective.” The court also found that “there has not been a sufficient showing in the instant case of an absence of a genuine issue of material fact ... to sustain a motion for summary judgment.”

Seeking to evade the clear holding of Walker, the majority seizes on the second ground for reversal and opines that that “decision could have rested on the insufficiency of proof of absence of genuine issue of material fact(.)” Fatal to this analysis is the fact that the court in Walker provided two valid reasons for reversal. That the first ground was a clearly stated and correct interpretation of the law cannot justify the majority’s plainly erroneous conclusion that said ground constituted superfluous dictum.

The majority further seeks to discredit Walker as authority by citing Turner v. Allstate Insurance Company, 368 So.2d 797 (La.App. 2nd Cir. 1979), a later case decided by the same panel of judges as Walker. In Turner, the court held that R.S. 22:628 did not apply because Act 494 of 1975 had amended R.S. 22:1406 D to allow past rejection to operate automatically in the future. To that extent only, R.S. 22:628 was held not to control. The question of written vs. oral rejection or lower limit selection was not before the Turner court and therefore the majority cannot logically vouchsafe Turner as an erosion of Walker.

Even if I were to assume that the useless oral requests of plaintiff were valid, I could not conclude that the rejection and subsequent lower limit selection operated prospectively on a continuing basis.

Plaintiff’s oral requests of December 6, 1974, and January 15,1975, to add $5,000 of UM coverage could not have remained effective on June 6,1975, when the policy was next renewed since Act 494 of 1975 was not yet effective. Furthermore, passage of Act 494 did not resurrect and make effective the earlier rejection and lower limit selection, even presuming their validity, since their lifelessness on June 6, 1975, was beyond doubt.

Act 494 of 1975 made a substantive change in the statutory law of uninsured motorist coverage. Prior to September 12, 1975, an insured would receive equal amounts of bodily injury liability and UM coverage unless he rejected same or selected lower limits. No statute permitted even a valid rejection or lower limit selection to be effective at the next policy renewal. Therefore, to derogate from the substantive right of UM coverage, a new and valid rejection or lower limit selection was required at each policy renewal. Act 494 permitted continuing rejection or lower limit selection effective September 12, 1975, but, as substantive law, can only be applied prospectively. Thus, for any rejection or lower limit selection to be continuously effective, that rejection or lower limit selection must have been valid and made no earlier than September 12, 1975.

Act 438 of 1977, requiring written rejections or lower limit selections and abrogating the attachment or reference requirements of R.S. 22:628, both clarifies the law and changes it. The passage of Act 438 shows that what was formerly required by general insurance law is now either required or dispensed with by particular statute.

Based on a review of the law and jurisprudence, I am certain that no oral rejection or lower limit selection of UM coverage is or has been valid. The second and fourth circuits so hold. I am likewise sure that no valid rejection or lower limit selection made prior to September 12, 1975, can be effective after that date.

Because the majority has chosen to ignore jurisprudence clearly on point, a conflict has been created between the second and fourth circuits on one hand and the first circuit on the other. Unequivocally believing the majority’s position to be wrong, I must dissent.

      . LSA-R.S. 22:1406 (D)(1)(a):
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

      . At the effective date of plaintiffs policy on June 2, 1978, LSA-R.S. 22:628 read:
      “No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance. This Section shall not apply to contracts as provided in Part XV of this Chapter.
      The provisions of this Section shall apply where a policy or other written evidence of insurance is coupled by specific reference with another policy or written evidence of insurance in existence as of the effective date hereof or issued thereafter.”

      . Act 137 of 1972 amended and reenacted LSA-R.S. 22:1406 D(l) to read:
      (a) “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”
      (b) “Any insurer delivering or issuing an automobile liability insurance policy referred to herein, shall also permit the insured, at his request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount not in excess of the limits of the automobile liability insurance carried by such insured.”

      . Act 154 of 1974 amended and reenacted R.S. 22:1406 D(l) to read:
      “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”

      . Act 494 of 1975 amended and reenacted R.S. 22:1406 D(l) to read:
      (a) “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.”
      (b) “Any insurer delivering or issuing an automobile liability insurance policy referred to herein, shall also permit the insured, at his request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount not in excess of the limits of the automobile liability insurance carried by such insured.”

      .Act 438 of 1977 amended and reenacted R.S. 22:1406 D(l)(a) to read:
      “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

      . LSA-R.S. 22:628, prior to July 10, 1979, provided:
      “No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance. This Section shall not apply to contracts as provided in Part XV of this Chapter.
      The provisions of this Section shall apply where a policy or other written evidence of insurance is coupled by specific reference with another policy or written evidence of insurance in existence as of the effective date hereof or issued thereafter.”

        . In Turner, the insured rejected UM in writing on June 17, 1975. Act 494 of 1975 became effective on September 12, 1975. Nevertheless, the Turner court construed the Act as permitting plaintiffs prior written rejection to be operative as a continuing rejection once Act 494 of 1975 became effective. I do not agree with the decision in Turner for reasons stated below but here merely note that the case has no bearing on Walker.

      . It is true that Myers v. Thibeaux, 365 So.2d 266 (La.App. 3rd Cir. 1978), and Turner v. Allstate Insurance Company, supra, were decided so as to effectively declare Act 494 of 1975 procedural. I agree with the second reason for dissent given by Judge Watson in Myers (that the statute is substantive and can only be applied prospectively) and flatly state that both Myers and Turner were wrongly decided.


text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. Alex C. HOPE.
    No. 13960.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Vernon P. Middleton, Baton Rouge, counsel for plaintiff-appellee, Louisiana Nat. Bank of Baton Rouge.
    Alex C. Hope, in pro. per.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Fannie T. SELF v. Jessie HUTTON et al.
    No. 13942.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Richard Kilbourne, Clinton, for plaintiff-appellee.

      Charles B. W. Palmer, Amite, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Fannie T. Self, brought a pos-sessory action against Jessie Hutton and twenty-two other named defendants. Plaintiff sought to be recognized as the possessor of a certain 41.36 acre tract in St. Helena Parish and prayed for judgment ordering defendants to assert their claim of ownership in a petitory action within sixty days after judgment or to be thereafter precluded from so doing.

Defendants denied that plaintiff was in actual possession of the property, urged that they possessed as owners by virtue of inheritance, and claimed that Fannie Self, with their permission, was possessing for them.

Following trial, plaintiff was awarded judgment as prayed for. Defendants appeal, complaining of several findings of fact by the trial court, all of which resulted in the determination that Fannie Self was, indeed, in possession of the tract in question.

In a well-reasoned opinion, the district judge stated that he could find no evidence to substantiate defendants’ claim that plaintiff was possessing for them. Our review of the record likewise discloses no such evidence.

To the contrary, the record shows that Fannie T. Self is and has been possessing the property as owner for several years. Her living in the house, prior cultivation of the tract, gardening, and applications for homestead exemptions are the acts of an owner.

Defendants’ claim that, due to a disturbance of plaintiff’s possession in 1973, her 1975 possessory action had prescribed, LSA-C.C.P. Art. 3658, is without merit. It is well established that numerous disturbances may occur without interrupting possession. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (1975). In the present case, plaintiff ignored the first disturbance but brought suit at the second. Such was her right.

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by defendants.

AFFIRMED.


author: COVINGTON, Judge.

text:
    In the Matter of the Succession of Tessie Courville DOUET.
    No. 14141.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      John L. Olivier, Sunset, for plaintiff-appellant Sidney Douet.
    Leo Berggreen, Baton Rouge, for defendant-appellee Lender J. Hollier.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

ON MOTION TO DISMISS

Appellee moves to dismiss the appeal on the ground that the judgment appealed from is not a final judgment but rather an interlocutory judgment and that it will not cause irreparable injury to appellant. We agree and dismiss the appeal.

Appellant, Sidney Douet, petitioned for probate of the statutory testament of his deceased wife, Tessie Courville Douet, in which he was named the sole legatee and testamentary executor. The testatrix had been married previously and had one son, L. J. Hollier, the appellee. After filing, inter alia, a sworn detailed descriptive list of the decedent’s estate, with values placed on each item, and acknowledging that the testamentary disposition impinges on the legi-time of his step-son, the executor, by rule, sought permission to sell, at public auction, a certain piece of real estate belonging to decedent’s separate estate and to deposit in the registry of the court a sum equal to one-third of the value of the decedent’s estate as given in the sworn detailed descriptive list. Thereby, the executor desired to satisfy the legitime and also receive the properties of the estate free and clear of numerous judgments and liens against Hollier, the total amount of which allegedly exceed the value of the forced portion.

Hollier opposed the rule, objecting to the use of a summary proceeding, the evaluation of the property on the descriptive list, and urging that he is entitled to one-third of decedent’s entire property and not one-third of the value thereof.

The eminent trial judge, after hearing the rule to show cause, for oral reasons which are in the record, recalled the rule and rejected the demands of the executor, Douet. From that judgment, signed September 15, 1980, he appealed devolutively.

Under LSA-C.C.P. art. 2083, an appeal may be taken only from a final judgment or an interlocutory decree which may cause irreparable injury. The instant case falls in neither category.

Therefore, the appeal is dismissed at appellant’s cost.

DISMISSED.