text:
    SUCCESSION OF Archie G. HEARN. Mallery Clotille Hearn MUSSELWHITE, Plaintiff-Appellee, v. Mamie Slack HEARN, et al., Defendant-Appellant.
    Nos. 14801, 14802.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.

      Kitchens, Benton, Kitchens & Pearce by John B. Benton, Jr., Minden, Voltz & Ware by Gus Voltz, Jr., Alexandria, for plaintiffs-appellees.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

In these consolidated cases the defendant, Mamie S. Hearn, appeals from a judgment which annulled a judgment of possession insofar as it failed to recognize Mallery Hearn Musselwhite, the plaintiff, as Archie G. Hearn’s only child, and which judgment sends plaintiff into possession of one-third of the property which belonged to Archie G. Hearn at his death, awards a money judgment against the defendant in the amount of $11,043.92, subject to a credit of $442.18, and orders defendant to account for all sums received or owing to Mamie S. Hearn since March 1, 1981 attributable to the properties adjudicated to the plaintiff.

The present controversy springs from the facts set out below.

In 1919 Myrtice Ruth Hogue became pregnant by Archie G. Hearn. Myrtice and Archie were married in Texas during her pregnancy, but resided together only a short time. On December 24, 1919, Myrtice gave birth to Archie’s child, a girl, whom she named Mallery Clotille Hearn.

In early 1920 Archie sued for a judicial separation from Myrtice in Webster Parish. There was no contact between Archie and Myrtice or his daughter after the January 1920 trial of his separation action. Archie did not obtain a judicial separation. The marriage was terminated in 1923 when Myrtice obtained a Texas divorce.

In 1934 Archie married Mamie Slack, the defendant, with whom he lived until his death on September 9, 1973. Archie’s olo-graphic testament named his wife as executrix and bequeathed to her as universal legatee all of his estate.

On September 20, 1973, the will was probated and Mamie was confirmed as executrix. The first paragraph of Mamie’s verified petition to probate the will alleges:

“Her husband, Archie G. Hearn, a resident and domiciliary of Webster Parish, Louisiana, died in Shreveport, Louisiana on September 9, 1973, leaving surviving him no lawful ascendants or descendants.”

Attached to the petition was an affidavit signed by two persons, one of whom was John W. Slack, defendant’s brother, and the other was defendant’s attorney. The affidavit read as follows:

“BEFORE ME, the undersigned authority, personally came and appeared (defendant’s attorney) and JOHN W. SLACK, who, being each duly sworn, did depose and say that they were well and truly acquainted with the late Archie G. Hearn, who died on September 9, 1973; that said decedent was married once, and only once, to Mamie Slack, with whom he was living and residing at the time of his death, and who yet lives. That decedent left surviving him no lawful ascendants or descendants, either by blood or adoption.
Further, deponents sayeth not.”

On February 13,1975, Mamie filed a verified petition for possession wherein she refers the court to the proceedings earlier filed and in which the allegation that her husband had died without ascendants or descendants was repeated. The affidavit of verification signed by appellant attached to the petition to probate the will to which the affidavit of her attorney and her brother was attached, and the affidavit signed by Mamie attached to the petition for possession, each stated that she had read the petition and the allegations were true and correct to the best of her knowledge, information and belief. A judgment of possession was rendered placing Mamie in possession of her deceased husband’s property on February 13, 1975.

Mallery did not learn of her father’s death until February 20, 1979. The next day she began making the inquiries which led to her discovery of the circumstances surrounding the disposition of her father’s property.

On November 23, 1979, Mallery filed a petition in the succession proceedings which alleged the facts surrounding her relationship to her father, that Mamie knew of those facts but failed to attempt to contact her after his death, and that her father’s will was invalid and, alternatively, that the legacy to Mamie should be reduced by one-third. On February 21, 1980 by amended petition these allegations were supplemented with allegations that the judgment probating the will and the judgment of possession had been obtained on false affidavits and false allegations of a verified petition and should be annulled on grounds of fraud and ill practices and that Mamie knew or should have known of her whereabouts but failed to contact her, which amounts to fraud and ill practices.

On February 19, 1981 Mallery filed a separate action against Mrs. Hearn which primarily repeated the above mentioned allegations as to fraud and ill practices.

The defendant interposed exceptions of prescription, which was referred to the merits, and no cause of action, which was overruled. After a trial on the merits the district judge overruled the exception of prescription and entered the judgment from which defendant appeals. The defendant sets out four specifications of error:

(1) That an ex parte judgment of possession is not subject to an action of nullity;

(2) That it was error to find that false affidavits, when made in good faith, constitute “fraud or ill practices” which justify annulling a judgment in an ex parte probate proceeding;

(31 That it was error to fail to consider whether these actions to annul were not in reality actions for the reduction of an excessive donation; and

(4) That it was error to fail to find that these actions, as actions for the reduction of an excessive donation, were barred by prescription under LSA-C.C. art. 3542.

Appellant argues that an ex parte judgment of possession is not subject to the action of nullity. She bases this contention on the cases of Janney v. Calmes, 212 La. 756, 33 So.2d 510 (1947), and Martin v. White, 219 So.2d 219 (La.App. 1st Cir. 1969).

This argument was considered and rejected by the First Circuit in Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir. 1975), where the court correctly disposed of it as follows:

“. . LSA-C.C.P. art. 2004 allows the action of nullity as a vehicle for challenging any final judgment, and does not include the former Code of Practice requirement that a judgment be definitive to be vulnerable to the action of nullity. An ex parte judgment probating a will and sending the legatees thereunder into possession of a decedent’s estate is unquestionably a final judgment, LSA-C.C.P. art. 1841, although not a definitive judgment inasmuch as it may not be urged as ground for a plea of res judicata. Additionally, we note that an action of nullity of a final judgment is a separate remedy independent of all other actions for judicial relief, and may be availed of notwithstanding the right of appeal and without adverse effect upon one’s right of appeal. LSA-C.C.P. arts. 2005 and 2006.” Id. at 913 (emphasis in original.)

As did the court in Schoen, we conclude that under the provisions of the Code of Civil Procedure an ex parte judgment of possession may be attacked through the action of nullity. See e.g. David v. David, 347 So.2d 885 (La.App. 3d Cir. 1977); Succession of Davis, 347 So.2d 906 (La.App. 3d Cir. 1977).

Having found that the judgment of possession is subject to an action of nullity we address appellant’s contention that there was no “fraud or ill practice” which justifies the annulment of the judgment of possession.

The trial court found, and the evidence overwhelmingly supports the finding, that Myrtice Hogue and Archie G. Hearn were married and that Mallery Hearn Mussel-white was their child. The evidence also shows that, by her own admission, Mamie Hearn knew of that marriage and that it had been a “shotgun” marriage brought on by the pregnancy of Myrtice Hogue. Mrs. Hearn also testified that sometime in 1974 she was told that shortly after her husband’s death there had been a woman in a local store claiming to be her husband’s daughter. Mrs. Hearn testified that her husband had told her that Myrtice had the child at the time he married her and that it was not his; however, the totality of her testimony established that she knew a female child was born of the marriage be.tween Archie and Myrtiee. In light of Mrs. Hearn’s admitted knowledge and the fact that she was a teenage resident of the Shongaloo community at the time of the events between Archie and Myrtiee, which the record shows were the subject of much talk in the area, occurred, it strains credulity to believe that she did not have substantial knowledge of the true facts of the events between Archie and Myrtiee, including the birth of their child.

The record also shows that John Slack, appellant’s brother and one of the affiants, knew, from what he had heard while growing up in Shongaloo, of the relationship between Archie and Myrtiee and the birth of their child.

Thus, the issue is: does it constitute “fraud or ill practices” under LSA-C.C.P. art. 2004 to obtain a judgment by the use of a verified petition which the plaintiff knows or has reason to strongly suspect contains false material allegations and an affidavit made by an affiant who knew it to be false?

The petition for possession must be verified and its allegations proven in accord with LSA-C.C.P. arts. 3003 and 3032. Article 3003 requires that death, jurisdiction, marriage of the spouses and relationship of the petitioners to the deceased be proved in accord with LSA-C.C.P. arts. 2821-2823. Articles 2821-2823 allow proof of death, jurisdiction, marriage and relationship of heirs to be proved by affidavits made by two persons having knowledge of the facts sworn to.

Here the verified petition for possession alleged that the decedent left no ascendants or descendants. The appellant attempted to prove this by an affidavit which she had previously submitted in conjunction with the petition for probate. The affidavit not only contained the false declaration with regard to descendants, but also falsely declared that decedent had been married but once. One of the affiants, John W. Slack, knew of the falsity of the affidavit when he made it.

A judgment can be annulled for being based partly on false affidavits. Brown v. South Street Lumber Company, 195 So.2d 650 (La.App. 3d Cir. 1967); White v. Exxon Corp., 354 So.2d 1085 (La.App. 2d Cir. 1978). When a party deliberately withholds information in order to obtain an uncontested judgment it constitutes an ill practice for which that judgment may be annulled. Brasher v. Brasher, 372 So.2d 752 (La.App. 4th Cir. 1979).

In the case of David, supra, where false affidavits were used to obtain a judgment of possession the court stated:

“Ignace David’s children here were aware of the existence of the will [the will referred to by the court bequested all decedent’s property in Florida to decedent’s fiance, Sigrid Ferrara, and the remainder of his estate to his three children] and executed an affidavit that they were the sole heirs to obtain an ex parte judgment of possession. An action of nullity is clearly appropriate. LSA-C.C.P. art. 2004...” Id. at 888.

In the Succession of Davis, supra, an ex parte judgment of possession recognizing the decedent’s two sons as his sole heirs was annulled under the provisions of LSA-C. C.P. art. 2004 because the affidavits presented to the court to obtain the judgment contained false information to the effect that the decedent left no will.

In the case of Schoen, supra, the court recognized that a forced heir has a cause of action to annul an ex parte judgment of possession depriving him of his legitime, which was obtained by false affidavits which concealed the existence of the forced heir, which were submitted to the court by a party to the succession.

The false allegations in the petitions filed in these proceedings verified by affidavits signed by appellant and the false allegations in the affidavit signed by appellant’s brother constitute fraud and ill practices. They were relied upon by the court in rendering the ex parte judgment of possession and for that reason could form the basis for annulling the judgment of possession insofar as it deprived plaintiff of her legitime.

The judgment appealed did not annul the judgment probating and ordering the execution of the will and this was correct because this judgment was not obtained by “fraud or ill practices” and for that reason is not subject to the nullity action under LSA-C.C.P. art. 2004. Though the petition to probate and the affidavits submitted with it contained the same false allegations and statements submitted to obtain the judgment of possession, these allegations and statements were not necessary to obtain the judgment probating the will and ordering its execution. Only death and jurisdiction is required to be proven as a condition precedent to the probating of the will. LSA-C.C.P. art. 2852.

The trial court’s judgment which annulled the judgment of possession to the extent that it infringed upon plaintiff’s legitime, necessarily had the effect of reducing the bequest to appellant of all decedent’s property to two-thirds of decedent’s property. The judgment therefore reduced an excessive donation.

Appellant had filed in the trial court an exception of prescription of five years based upon the provisions of LSA-C.C. art. 3542 which provides that actions to reduce excessive donations prescribe in five years. The trial judge referred this exception to the merits and after trial in written reasons for judgment found that the only issue of prescription was contained in LSA-C.C.P. art. 2004 which requires the action of nullity to be instituted within one year of the discovery by the plaintiff in the nullity action of the fraud and ill practice. The trial court relied upon the decision of Schoen, supra, wherein the court said:

“We find the prescriptive period applicable herein to be that of one year from discovery of the alleged fraud or ill practice as described in LSA-C.C.P. art. 2004. For that reason, we enter into no discussion of LSA-C.C. art. 3542, since we find it inapplicable in this instance.
In our judgment, the timeliness of Appellant’s action of nullity must be resolved in the light of two factual determinations, namely: (1) whether the assailed judgment was obtained by either fraud or ill practice, and (2) if so, whether Appellant instituted his action within one year of discovery thereof. (Id. at 914)
We find that this case poses a question of does a forced heir have a cause of action to annul an ex parte judgment of possession depriving him of his legitime, rendered in a succession proceeding in which his existence is concealed from the Court by fraud or ill practice by a party to the succession proceeding, separate and distinct from the heir’s action to reduce an excessive testamentary donation? We also answer the inquiry in the affirmative.” (Id. at 912.)

The court in Schoen reversed a summary judgment which held that the plaintiff, a forced heir, had lost his cause of action to reduce an excessive donation because he instituted his suit more than five years after the will was probated. The Schoen case held that if the plaintiff could establish the judgment was obtained by fraud and ill practice and if he instituted his suit within one year of his discovery of the fraud and ill practice, that he could recover his legi-time. The rationale of the court was that the action of nullity includes within it the right to claim the legitime and that the action of nullity is a separate and distinct cause action from the action to reduce an excessive donation. Schoen further holds that the action of nullity is subject only to the one year prescriptive period set forth in LSA-C.C.P. art. 2004 and is totally unaffected by the five year prescription contained in LSA-C.C. art. 3542.

We construe Schoen as interpreting two provisions of the law containing conflicting prescription periods as applicable to the facts presented there which bear much similarity to the facts developed in the trial of this case.

The appellant strongly contends that Schoen is not sound law and that the trial court erred in relying upon it. He contends that once the judgment of possession is annulled in an action filed within one year of the discovery of the fraud, that the excessive donation still remains effective until it is reduced. He then contends that action to reduce must have been filed within five years of the probation of the will. The thrust of his contention is that Schoen erred in finding the actions of nullity and the action to reduce combined in one action to be controlled by LSA-C.C.P. art. 2004 prescription.

We believe Schoen to contain a reasonable and sound solution to the situation where the forced heir seeks the return of his legitime more than five years after a will is probated and within one year of his discovery of the fraud. We, however, recognize that Schoen is a decision of the First Circuit and that the rationale contained in it has never been reviewed by our supreme court. We further note that appellant has cited numerous cases decided by the supreme court which have held actions to reduce excessive donations prescribe in five years from the date the will is probated. We, however, find the cases relied upon by appellant can be of no comfort to her because the supreme court has recognized that a forced heir may sue for his legitime more than five years after the will is probated if he has been deprived of it by fraud of which he was unaware due to no neglect on his part.

In the case of Draper v. Van Leer, 197 La. 259, 1 So.2d 513 (1941), a suit by a forced heir against an executrix, the court stated:

“The plaintiff alleges the exercise of diligence in trying to locate his father, and fraud and concealment on the part of defendant, Mrs. Van Leer. These allegations, if proven, would have the effect of exempting plaintiff from the prescription under Article 3542 of the Revised Civil Code. The rule was stated in Cox v. Von Ahlefeldt, supra [105 La.] on page 586 [30 So. on page 216], as follows:
* * * Those who claim exemption from prescription by reason of ignorance resulting from fraud must allege and show that such ignorance was neither willful nor negligent.’ ” Id. at 516.

The appellant qualified as executrix of the succession on the same date the will was probated and as executrix had a fiduciary relationship to the plaintiff. LSA-C. C.P. art. 3191; Langendorf v. Administrators of Tulane Ed. Fund, 361 So.2d 905 (La.App. 4th Cir. 1978).

On the very date the executrix qualified, she entered into a scheme to conceal the existence of plaintiff by failing to inform her succession attorney or the court of the existence of the plaintiff.

The plaintiff, who had lived in Houston for many years, had not been in Webster Parish for many years prior to her father’s death. The evidence establishes that the decedent hád never shown any interest in the plaintiff, nor made any provision for her support during her childhood, even though she spent most of her childhood and much of her early adult life only a few miles from decedent’s home. There was further evidence in the record that indicated decedent had a dangerous reputation and this discouraged plaintiff from attempting to have any relationship with him. The fact that she did not frequently check in the community where her father resided in Webster Parish to determine the state of his health or the probable time of his possible demise, cannot be considered as neglect upon her part in the discovery of his death and the fraud in the decedent’s succession proceedings. The record reflects that plaintiff discovered her father’s death on February 20, 1979 in a telephone conversation with a cousin and that she immediately sent for arid obtained a certified copy of her father’s succession proceeding about February 26, 1979 and instituted these proceedings within less than one year. We conclude that appellant’s fraud in the concealment of the plaintiff, which commenced on the date the will was probated, suspended the running of prescription under LSA-C.C. art. 3542 until the date that plaintiff discovered the fraud, which was on or about February 26, 1979. Under these circumstances appellants’ plea of prescription can clearly have no merit.

For the reasons stated we conclude the' judgment appealed is correct.

While the trial court did not discuss plaintiff’s alternative theory of recovery, we find that she would have been entitled under this theory of recovery to the same results reached by the trial court under the nullity theory. Simply stated, plaintiff’s alternate theory of recovery is as follows:

(1) that appellant, as executrix, had certain duties;
(2) that one of those duties was to inform forced heirs of their claims and allow them an opportunity to assert those claims;
(3) that appellant breached that duty; and
(4) that appellant is liable to her because of that breach.

Appellant contends that we may not consider this theory because to do so would be to improperly consider the pleadings amended by unobjected to evidence which was admissible on other issues. We disagree.

In plaintiff’s petition in the succession proceedings she made the following allegations:

“That the defendant, Mamie Slack Hearn, knew that the decedent had been previously married to Myrtice Ruth Hogue and the defendant knew that petitioner was born during that marriage; however, defendant made no attempt to contact petitioner after the decedent’s death, and she petitioned this court alleging that the decedent left no descendants.”

These allegations present the essential facts underlying the appellant’s alternative theory except for Mrs. Hearn’s status as executrix which is a matter of record located elsewhere in the succession proceeding.

Louisiana has repudiated the theory of the case doctrine of the common law and it is not necessary for a litigant to plead a theory of recovery. Royal Furniture Company of Baton Rouge v. Benton, 260 La. 527, 256 So.2d 614 (1972); Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); Albritton v. McDonald, 363 So.2d 925 (La.App. 2d Cir. 1978), writ refused 366 So.2d 561 (La.1979). Further, it is the duty of this court to render any judgment which is just, legal and proper upon the record on appeal. LSA-C.C.P. art. 2164.

The only allegation missing from the petition in this case concerning the alternate theory of recovery is the allegation of a legal conclusion to specifically point up this basis for recovery. However, such an allegation is not required. Louisiana has a system of fact pleading in which the litigants are not required to plead a theory of recovery. LSA-C.C.P. art. 854; Albritton, supra. The appellee’s alternate theory of recovery is properly before us and we will consider it.

The crux of appellee’s alternate theory of recovery is the existence of a duty on the part of an executor to notify heirs of the existence of their claims and to allow them an opportunity to assert them. For the proposition that there is such a duty appel-lee relies on Langendorf, supra.

In Langendorf the decedent’s will left his entire estate to defendant and named the defendant as executor. The estate included property in Florida which the will could not pass due to being in invalid form under Florida law. It was decided that the defendant would obtain the property by not paying the taxes on it and buying it when it was sold at a tax sale. While it was in the process of executing this scheme, defendant learned that the decedent had legal heirs who would be entitled to the Florida property. However, the executor did not notify those heirs and continued with its scheme and eventually bought the property at a tax sale. The defendant later lost the property through its negligent failure to pay the taxes.

The heirs subsequently learned of the occurrences and sued the executor. The court in Langendorf said:

“Defendant had the duty at least to inform the legal heirs of the claim to the property and to preserve the property for a reasonable time thereafter so that the heirs could pursue their rights. And certainly defendant had a duty not to contrive a method of depriving the legal heirs of their claim to ownership.” Id. at 908-909.

The court found that the defendant had breached its duty and owed the heirs the return of the land, but awarded only the value of the land since defendant had lost it. The court found the prescriptive period applicable to a claim against a fiduciary to be ten years.

A succession representative is a fiduciary. LSA-C.C.P. art. 3191. An executor owes his duties to legatees, creditors, and heirs. Succession of Anderson, 323 So.2d 827 (La.App. 4th Cir. 1975); Succession of Rosenthal, 369 So.2d 166 (La.App. 4th Cir. 1979); Langendorf, supra.

We find that an executor or executrix owes a duty to forced heirs. We hold that when an executrix knows or has reason to strongly suspect that there are persons with claims as forced heirs whose legitime is impinged by bequests in the will, she has a duty to make a diligent effort to learn the identity of and inform such persons of the death of the decedent and their possible claims.

The record is clear that Mrs. Hearn had information from which she knew or should have known that there was at least one person who was decedent’s child and forced heir. The record shows that Mrs. Hearn made no effort to discover the identity of and contact that person. On the contrary, she concealed the existence of the forced heir from her attorney and the court. By conducting herself as she did, defendant breached the duty she owed the plaintiff, Mallery Musselwhite, the decedent’s child.

The evidence indicated the ease with which Mallery Musselwhite could have been contacted. Charles Hearn, the decedent’s nephew who lived in the same community with appellant, testified that when his wife became interested in genealogy she wanted to contact Archie’s daughter, whose existence was well known in the Hearn family. Mrs. Charles Hearn contacted the Harps in nearby Haynesville, and they gave her Mal-lery Hearn Musselwhite’s Houston address. This shows that plaintiff could have been located easily through general inquiry in Webster Parish.

The appellee is entitled to the ownership of her forced portion of her father’s estate’s property that is still in the hands of the executrix, to one-third of the value of any property of the estate no longer in the hands of the executrix, and one-third of all revenues received by or due to executrix from the estate property. Langendorf, supra.

For the foregoing reasons, the judgment is AFFIRMED at appellant’s cost.

      . The petition in the succession proceeding requested the following relief:
      (a) the annulment of the will;
      (b) the annulment of the judgment of possession; and
      (c) that Mallery be recognized as Archie’s only child and placed in possession of one-third of the property possessed by him at his death.
      The demands for annulment of the will were the subject of a successful motion to strike by defendant.

      . The petition in the separate action requested the following relief:
      (a) the annulment of the judgment of possession;
      (b) that Mallery be recognized as Archie’s only child;
      (c) that Mallery be declared owner and sent into possession of one-third of the property possessed by Archie at his death;
      (d) that defendant account for all income received from succession property since her husband’s death; and
      (e) for judgment against defendant for one-third that amount.

      . LSA-C.C. art. 3542: “The following actions are prescribed by five years:
      That for the nullity or rescission of testaments or other acts.
      That for the reduction of excessive donations.
      That for the rescission of partitions and guarantee of the portions.
      This prescription only commences against minors after their majority.”

      . There is no indication in the record that a shotgun or any form of intimidation was used to coerce Archie into marrying Myrtice. The term “shotgun” marriage is used only to describe the conditions which precipitated the wedding, namely, Myrtice’s pregnancy.

      . LSA-C.C.P. art. 2004 — “A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

      . We note that there is no indication in the record that appellant’s attorney was aware of the true facts at the time he executed the affidavit. He based the affidavit on his friendship with and knowledge of appellant and Archie Hearn since 1935. Appellant’s attorney was as badly deceived as everyone else by his client’s and her brother’s misrepresentations. Appellant testified that she never told her attorney of her knowledge of her husband’s former marriage or about the child born of that marriage.

      . LSA-C.C.P. art. 2852 — “The petitioner shall submit with his petition evidence of the death of the deceased, and of all other facts necessary to establish the jurisdiction of the court...”

      . LSA-C.C. art. 3542 — “The following actions are prescribed by five years:

      That for the reduction of excessive donation;


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    William J. NELSON, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY d/b/a CNA Insurance and the State of Louisiana Employees Uniform Group Insurance Program, Defendants-Appellants.
    No. 14803.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Writ Denied April 21, 1982.
    Jack D. Barnett, Shreveport, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen. by Tommy D. Teague, Baton Rouge, for defendants-appellants.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The State of Louisiana appeals from a judgment awarding plaintiff penalties of $12,108.80 and attorney fees of $2,500 under LSA-R.S. 22:657 for defendant’s arbitrary failure to pay health and accident benefits under the State Employees Uniform Group Benefits Program within 30 days after proof of loss was filed. The state’s assignments of error specify that the trial court erred in (1) holding that Act 240 of 1979, which amended LSA-R.S. 22:657 to make the penalty and' attorney fees provisions of the statute applicable to the State of Louisiana, was interpretive legislation and, therefore, should be given retroactive effect so as to be applicable to plaintiff’s claim which was filed and paid prior to the effective date of the amendment; (2) finding that the action of the state in delaying payment for approximately 90 days after proof of loss was filed was arbitrary and capricious; and (3) awarding an excessive amount of attorney fees.

The plaintiff also appeals contending that: (1) the trial court erred in failing to also render judgment against Continental Casualty Company, the administrator of the state program; and (2) the award of attorney fees should be increased for the services rendered on appeal.

For the reasons expressed in this opinion we reverse the judgment of the district court and render judgment rejecting plaintiff’s demands for penalties and attorney fees.

Facts

Plaintiff, employed as an investigator for the Alcoholic Beverage Control Commission of the State of Louisiana, suffered a heart attack while working on September 19, 1978. He was hospitalized until October 16, 1978 during which time he underwent a bypass operation and incurred hospital, surgical, and medical expenses totaling $15,-028.10.

At the time the expenses were incurred plaintiff was covered under the State of Louisiana Employees Uniform Group Benefits Program, a self-funded program by which the state provides health and accident medical benefits for its employees. Continental Casualty Company (CNA), a commercial insurance company, was employed by the state as the claim administrator of the program. Plaintiff’s initial claim was filed with the state on October 23, 1978. The form describes the nature of the sickness or injury as “heart attack — followed by surgery”. The question “Did injury occur in the course of any employment?” is answered “yes”. The question “Have you or do you intend to file this claim under workman’s compensation?” is answered “no”. The state paid several claims submitted by plaintiff.

Sometime in November it was recognized in the claims office that plaintiff might have a workman’s compensation claim. The state group medical benefits plan excludes claims covered in whole or part by workman’s compensation insurance. In early December plaintiff was advised by the claim administrator that his plan did not cover medical expense for injuries arising in the course of his employment which is covered in part or in full by the worker’s compensation carrier and plaintiff was advised to contact his personnel office for instructions on filing for worker’s compensation benefits.

A file was forwarded to the adjusters for the state’s worker’s compensation insurer. The adjusters conducted an investigation, including an interview with the plaintiff. Based on their investigation, including statements by the physicians who treated plaintiff contained in the claim forms previously submitted which stated that plaintiff’s illness was not connected with his employment, the adjusters denied plaintiff’s worker’s compensation claim on January 11, 1979. The claims administrator of the group medical program was notified of this action and on February 6, 1979, paid all pending claims totaling $12,108.80. Plaintiff filed suit on February 8, 1979, alleging that benefits were unpaid and seeking benefits, penalties, and attorney fees from the state and Continental Casualty Company. The case was ultimately tried in November 1980 and judgment was rendered in June 1981.

Applicability of LSA-R.S. 22:657

After all of the operative facts giving rise to this litigation had occurred and while this suit was pending, LSA-R.S. 22:657 was amended by Act 240 of 1979, effective September 7, 1979, to make the provisions of the statute applicable to the state health and accident benefit program by the addition of Subsection C which reads as follows:

“Any person, partnership, corporation or other organization, or the State of Louisiana which provides or contracts to provide health and accident benefit coverage as a self-insurer for his or its employees, stockholders or any other persons, shall be subject to the provisions of this Section, including the provisions relating to penalties and attorney fees, without regard to whether the person or organization is a commercial insurer provided, however, this Section shall not apply to collectively bargained union welfare plans other than health and accident plans.”

Prior to the amendment and at the time plaintiff’s claims were filed and paid, the statute, which is a part of the Insurance Code, provided in pertinent part:

“A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than 30 days from the date upon which written notice and proof of loss .. . are furnished to the insurer.... Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court....” (emphasis supplied)

The definitions section of the Insurance Code, LSA-R.S. 22:5, contains the following applicable provisions:

(1) “ ‘Insurance’ is a contract whereby one undertakes to indemnify another or pry a specified amount upon determinable contingencies. It shall include any trust, plan or agreement, popularly known as employee benefit trusts, not specifically exempted from state regulation under Public Law 93-406, except collectively bargained union welfare plans, single employer plans or plans of the state or political subdivisions....” (emphasis supplied); and
(2) “ ‘Insurer’ includes every person engaged in the business of making contracts of insurance, other than fraternal benefits societies. A reciprocal, an inter-insurance exchange or a Lloyds organization is an ‘insurer.’ Any person who provides an employee benefit trust as specified in R.S. 22:5(1) is an insurer.”

It is clear that prior to the 1979 amendment the penalty and attorney fees provisions of LSA-R.S. 22:657 were applicable to insurers and insurance contracts and were not applicable to the state and its self-funded state medical benefit program for employees. Plans of the state or political subdivisions were specifically excluded from the definition of insurance contracts by LSA-R.S. 22:5(1) and by reference the state was excluded from the definition of insurer by LSA-R.S. 22:5(2).

Since LSA-R.S. 22:657 was not applicable to the state medical benefit program at the time plaintiff’s claims were filed and paid, there was no requirement that the state pay claims within 30 days after filing of proof of loss nor was there any statutory penalty for failing to do so.

In Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978) the court found that the defendant, who provided benefits for its employees under a long-term disability plan which was administered through a trust for its employees, was not an insurer subject to the Insurance Code and that, therefore, LSA-R.S. 22:657A was not applicable to it. The court noted that the employer was not engaged in the business of making contracts of insurance merely because it provided, through a trust, a long-term disability plan for its employees. Further, the employer did not offer the program primarily for profit nor was the coverage of its own employees the result of advertisement or solicitation of insurance business from the general public, or of holding itself out or doing business as a commercial insurer. The holding of the Killebrew case which involved a private employer would be equally applicable to the state as an employer providing a self-funded medical benefit program for its employees, even in the absence of the express exclusion of the state plan under LSA-R.S. 22:5(1) and (2).

It should be noted that the Killebrew case was decided prior to a 1978 amendment of LSA-R.S. 22:5(1) and (2) which added employee benefit trusts, with certain exceptions including plans of the state or political subdivisions, to the definition of insurance. It seems quite likely that the 1978 amendment to LSA-R.S. 22:5(1) and (2) and the 1979 amendment to LSA-R.S. 22:657 were prompted by the Killebrew decision and that the 1979 amendment to LSA-R.S. 22:657 was intended as a legislative overruling of the Killebrew case so as to make the penalty and attorney fees provisions of the statute specifically applicable to the self-insured programs offered by employers including the state. There is no basis, however, for applying the amendment retroactively so as to entitle the plaintiff in this case to penalties and attorney fees connected with claims that arose and were paid prior to the time the amendment became effective.

The general principle of nonretroactivity of laws is expressed in LSA-C.C. Art. 8 which provides:

“A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”

Likewise, LSA-R.S. 1:2 states that no statute is retroactive unless it is expressly so stated. There are, however, exceptions to the general rule of nonretroactivity. The court in Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978) stated:

“... According to civilian theory, however, the principle of non-retroactivity of existing legislation admits three exceptions: laws that suppress or lessen penalties, laws that are merely interpretive of existing legislation, and those that the legislature has expressly or impliedly declared to be retroactive. 1 M. Planiol, Civil Law Treatise, Nos. 249-252 (La.St. L.Inst.Transl.1959); A. Yiannopoulos, Civil Law System, 68 (1977).”

Additionally, many cases note that interpretive, remedial, curative, or procedural laws are generally accorded retroactive application. See e.g., Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir. 1977), writ denied 354 So.2d 210 (La.1978); Morrison Food Service, Inc. v. Cohen, 376 So.2d 182 (La.App. 4th Cir. 1979). However, as the court noted in Lott v. Haley, 370 So.2d 521 (La.1979), procedural or remedial laws cannot consistently with state and federal constitutions apply retroactively to deprive a person of a preexisting right.

The trial court held that the 1979 amendment to LSA-R.S. 22:657 was an interpretive law and should be applied retroactively in this pending suit, relying on Dripps v. Dripps, 366 So.2d 544 (La.1978).

Interpretive laws do not establish new rules; they merely determine the meaning of existing laws and may, thus, be applied to facts occurring prior to their promulgation. In such a case it is not the interpretive law but the original law which applies; there is an apparent rather than a real retroactivity. Dripps v. Dripps, supra; Ardoin v. Hartford Accident and Indemnity Co., supra.

The 1979 amendment to LSA-R.S. 22:657 is not interpretive legislation. It changed the law as it existed prior to the amendment. Prior to the amendment the penalty statute applied only to insurers and to certain employee benefit trusts. Plans provided by the state were expressly excluded from the definition of insurance contracts and by reference the state was excluded from the definition of insurer. The 1979 amendment changed the law to make the provisions of the statute applicable to the state of Louisiana and other employers providing self-insured employee benefit plans. The amendment cannot be given retroactive effect as an interpretive statute because it changed existing law.

Dripps v. Dripps supra, relied on by the plaintiff and cited by the trial court, is readily distinguishable from the instant case. In Dripps, the plaintiff grandparents sought to have their rights of visitation with the children of their deceased son judicially determined. While the suit was pending, existing law was changed to provide for visitation rights for grandparents of adopted children. In holding that the amendment to the law was applicable in that case, the court did not hold that the amendment was an interpretive statute. The basis for the decision was that the change in the law should be applied to that case because the judgment fixing visitation rights was prospective in nature dealing with future rights of the parties and should be rendered in accordance with the law as it existed at the time the appellate court rendered its judgment. In the instant case we are dealing with rights of the parties that were fixed in accordance with the actions of the parties which took place prior to the time the law was changed and which were completed prior to the time suit was filed, not with prospective rights of the parties.

The plaintiff also relies on Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952) and Davis v. United Fruit Company, 120 So.2d 273 (La.App.Orl.1960). In Wright the Louisiana supreme court was confronted with the question of whether LSA-R.S. 22:658 providing for penalties for the failure to timely pay an insurance claim were applicable to a workman’s compensation insurer who had issued its policy prior to the enactment of the statute. The court held that the statute was remedial in nature even though it imposed penalties and held it applicable in that ease where payments were arbitrarily withheld for more than 60 days after enactment of the statute. In Davis, the court, relying heavily on Wright, noted that remedial statutes are to be accorded a liberal construction in favor of those entitled to their benefit. The court held that an amendment to the workman’s compensation law imposing penalties and attorney fees upon an employer who unreasonably failed to timely pay an employee’s claim had a remedial purpose and applied the amended statute to a pending suit where the employer was resisting payment of compensation benefits after enactment of the amendment. The instant case is quite different. Here, the defendant paid all benefits due before suit was filed and long before the amendment to the statute was adopted. There was no arbitrary delay in payment of benefits after the effective date of the amendment.

The issue of retroactivity of the 1979 act amending LSA-R.S. 22:657 was presented but not passed upon in Blewer v. Continental Assurance Company, 394 So.2d 842 (La.App. 3d Cir. 1981), writ denied 399 So.2d 602 (La.1981). In that case the state argued that since the plaintiff’s claim arose on September 1, 1979, the date he was injured, to apply LSA-R.S. 22:657 as amended by Act 240, effective September 7, 1979, would be to give a retroactive effect to this substantive change in the law. The court disagreed, finding that plaintiff’s cause of action for penalties and attorney fees did not arise until 30 days after he submitted his claim for medical expenses. The plaintiff in that ease submitted his proof of loss on October 5, 1979 and, therefore, plaintiff’s cause of action arose in November 1979 after the effective date of the amendment. The court in that case, therefore, was not presented with the retroactive application of the amended statute.

The act amending the penalty statute did not expressly state that it was to be retroactive. LSA-R.S. 1:2. To the contrary, the purpose of the amendment is to encourage prompt payment of claims by self-insured employers, including the state, who provide employees health and accident benefit programs. That purpose would not be served by applying the statute retroactively to claims which have already been paid.

Since LSA-R.S. 22:657 did not apply to the state and its medical benefits program at the time the operative facts giving rise to this litigation took place, and since the 1979 amendment to the statute cannot be applied retroactively, the judgment of the district court against the state awarding penalties and attorney fees must be reversed and plaintiff’s demands for penalties and attorney fees must be rejected.

Plaintiff’s contention on appeal that the trial court erred in denying its claim against Continental Casualty Company is without merit. Continental, although a commercial insurance company, was not an insurer in this instance. It had no contractual relationship with the plaintiff. Its position was strictly as an employed claims administrator for the state. LSA-R.S. 22:657 imposes penalties only on the insurer and, as amended, the employer providing a self-insured plan. The statute is not applicable to the employed claims administrator, Continental.

These determinations being dispositive of the case, it is unnecessary to consider the other issues raised by the assignments of error.

For the reasons assigned the judgment of the district court in favor of plaintiff against the state is reversed and the plaintiff’s demands are rejected. The judgment rejecting plaintiff’s demands against Continental Casualty Company is affirmed. The cost of appeal is assessed to the plaintiff.

Reversed in part and rendered; affirmed in part.


author: WARD, Judge.

text:
    Rudy GIL v. METAL SERVICE CORPORATION.
    No. 12369.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Denied May 7, 1982.
    Robert B. Mitchell, Kullman, Lang, In-man & Bee, New Orleans, for defendant-ap-pellee.
    James F. Willeford, and Randy Opotow-sky, Steeg & O’Conner, New Orleans, for plaintiff-appellant.

      Before GARRISON, WARD and AUGUSTINE, JJ.
   WARD, Judge.

Plaintiff Rudy Gil appeals from a judgment in defendant’s favor maintaining the defendant’s exceptions of no cause of action. The issue in this appeal is whether plaintiff has established a cause of action under either (1) Louisiana Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401 et seq., or (2) a general tort claim under LSA-C.C. Art. 2315 for wro.'gful discharge from employment.

Gil had been employed by Metal Service Corporation for ten years in a management-supervisory capacity when he was fired in January, 1980. His history of employment had apparently been satisfactory, but plaintiff contends the practice which provoked his firing had been a source of conflict between Gil and his supervisors for some time.

He alleges Metal Service Corporation had instituted a practice of removing identification marks from foreign steel and delivering it to their customers, although they specified domestic steel orders. Gil claims he protested the practice and refused to supervise or perform work that resulted in the removal of these markings, and that he was fired for refusing to perform this illegal act.

Gil claims he has a cause of action under LSA-R.S. 51:1401 et seq., because his firing was “in furtherance” of deceptive trade practices by his employer.

R.S. 51:1409. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages.

However, this statute has been construed to give protection only to consumers and business competitors. National Oil Service of Louisiana v. Brown, 381 So.2d 1269 (La.App. 4th Cir. 1980), reh. den. 1980; Reed v. Allison & Perrone, 376 So.2d 1067 (La.App. 4th Cir. 1979). Gil is not a member of one of the protected classes; he does not have a cause of action under this statute. The trial court’s decision is correct.

Gil’s second claim of a cause of action is under Louisiana’s general tort article, LSA-C.C. Art. 2315. He claims he was wrongfully terminated because he refused to perform an illegal act, although ordered to do this act by his employer, and that his refusal is protected conduct for which he could not be fired.

Defendant Metal Service denies that Gil has a cause of action and contends an employer is free to terminate the services of an employee without reason, unless specifically prohibited by the U. S. Constitution, the Constitution of Louisiana of 1974, or statute. Defendant relies on LSA-C.C. Art. 2747:

A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.

Gil concedes that under the traditional common law and Art. 2747, an employment contract of indefinite duration is, in general, terminable at the will of either party. However, he contends, there is good reason for a public policy exception to this rule. He contends that LSA-C.C. Art. 11 proscribes employment contracts that derogate from the force of laws made for the preservation of public order or good morals, and that he could not be terminated for breach of an employment contract which required him to do an illegal act as one of his duties.

Art. 11. Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.

Although wrongful termination of employment is a popular issue, this is the first time Louisiana courts have been called on to consider whether termination of employment for refusal to comply with an order to do an illegal act states a cause of action. There are recognized limitations on the discretion of employers. An employee cannot be terminated because of race, sex or religious beliefs, or because he or she exercised constitutionally protected rights, such as free speech. Various statutes have given rights to employees, and employers have been prohibited from terminating employees because they have exercised these rights, such as the right to organize, and in Louisiana, the right to present worker’s compensation claims.

Courts in many of the United States have held that an employee cannot be terminated for refusal to perform an illegal act, even in the absence of a statute. However, because of Louisiana’s traditional and unique deference to legislative authority, these decisions cannot act as precedent.

Therefore, we must consider this question: Is the refusal to perform an illegal act constitutionally or statutorily protected from the exercise of arbitrary discretion of an employer’s right to terminate employees? We can find no authority to indicate the U. S. Constitution, an Act of Congress, or the Constitution of the State of Louisiana limits the right of an employer to terminate employees who refuse to perform acts they believe to be illegal. As to Louisiana statutory prohibitions, Art. 11 is general, prohibiting agreements to breach laws made for the preservation of public order or good morals. These contracts, otherwise mutually binding, cannot be enforced. There is no agreement between Rudy Gil and Metal Service Corporation to abrogate any law. The article is inapplicable.

Plaintiff’s claim, although appealing, is not that of a “whistle-blower” who may possibly be protected by constitutional provisions of free speech. At present, we find no authority to justify a cause of action. Broad policy considerations creating exceptions to employment at will and affecting relations between employer and employee should not be considered by this court.

We affirm the trial court’s decision that there is no cause of action stated by plaintiff.


author: DOUCET, Judge.

text:
    Maxine Dugas HUTCHINSON, Plaintiff-Appellee, v. T. G. & Y. STORES COMPANY, et al., Defendants-Appellants.
    No. 8660.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Davidson, Meaux, Sonnier & Roy, V. Farley Sonnier, Lafayette, for defendants-appellants.
    Chappuis & Beslin, Denald A. Beslin, Rayne, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen’s compensation case. The trial court found plaintiff, Maxine Hutchinson, to be totally and permanently disabled as the result of an accident on December 15, 1979, in the course and scope of her employment with T. G. & Y. Stores Company, Inc., defendant, and awarded penalties and attorney’s fees. This default judgment was thereafter confirmed. Defendant now appeals, assigning as error the plaintiff’s failure to prove lack of intervening cause, and the award of penalties and attorney’s fees. As we find no merit in either specification of error, we affirm.

Plaintiff was injured while lifting a bolt of fabric containing approximately 40 yards while working at defendant’s store one Saturday evening. She reported the injury to her employer and thereafter consulted with her family physician, Dr. John J. Guidry, who treated her on a regular basis from December 18,1979 until she was referred to Dr. James McDaniel, an orthopedic specialist, in March of 1980. Subsequently she visited Dr. Louis C. Blanda, also an orthopedic specialist, who treated plaintiff from April of 1980 through January 21, 1981. Thereafter she returned to her family physician who has continued to treat her. As of the trial date, neither Drs. Blanda nor Guidry had discharged plaintiff from their care. However, at the request of defendant, Ms. Hutchinson was seen on October 23, 1980 by Dr. Fred C. Webre, an orthopedic surgeon, who did discharge plaintiff and suggested she return to work as a clerk, because of the lack of specific clinical findings. Compensation benefits previously received were thereafter terminated by letter dated November 4, 1980.

Appellant contends that the trial court erred in confirming the default judgment inasmuch as no evidence was introduced to explain the effect of an automobile accident in which plaintiff was involved in August of 1980, subsequent to the work related injury. In other words, appellant seeks to shift the burden upon plaintiff to prove a negative— lack of intervening cause such that would absolve the defendant of liability. We disagree.

In confirming a default judgment, plaintiff need only establish a prima facie case. LSA-C.C.P. Art. 1702 In a workmen’s compensation suit the employee must prove that he received a personal injury arising out of and in the course of his employment and that a causal relationship exists between the injury and his disability. Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976); Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978). Once done, the burden is shifted to the employer to prove the disability did not occur as a consequence of that accident complained of, but rather from some other cause. Haughton v. Fireman’s Fund American Ins. Cos., 355 So.2d 927 (La.1978); Kridler v. Bituminous Casualty Corp., 409 F.2d 88 (C.A.La.1969); Graham v. Jones Bros. Co., Inc., 393 So.2d 861 (La.App. 2nd Cir. 1981). The record discloses ample evidence to establish a prima facie case of compensable injury warranting the award of workmen’s compensation benefits. Accordingly, appellants claim that the subsequent accident may have aggravated plaintiff’s injury is untimely.

Additionally, appellant contends that there is insufficient evidence to justify the award of penalties and attorney’s fees. The record discloses that plaintiff reported her injury to her employer the next work day following its occurrence. Thereafter she was seen by Drs. Guidry, McDaniel, and Blanda and the employer paid such medical expenses until the examination by Dr. We-bre. Following her visit with Dr. Webre all benefits were terminated, due to said physician’s belief that, as there were no specific clinical findings, plaintiff should return to work. Thereafter, plaintiff requested her benefits be reinstated, and upon refusal of said request she retained an attorney who also demanded benefits be reinstated.

It is well established that injured employees may not be denied compensation on the basis of inconclusive medical reports. Alexander v. Dept. of Culture, Recreation and Tourism 410 So.2d 1286 (La.App. 3rd Cir. 1982); Wiley v. Southern Casualty Insurance Co., 380 So.2d 214 (La.App. 3rd Cir. 1980); Norris v. Southern Casualty Insurance Co., 342 So.2d 874 (La.App. 3rd Cir. 1977), writ denied, 344 So.2d 670 (La.1977). Not only was Dr. Webre’s report inconclusive, but it was also contraindicated by plaintiff’s continued supervision by Drs. Guidry and Blanda. Although Dr. Webre may possess more expertise than plaintiff’s general practitioner, Dr. Guidry, great weight should be given to testimony of the treating physician who has a greater opportunity to examine and maintain a continuing monitoring of the patient’s condition. Williams v. Liberty Mutual Insurance Co., 327 So.2d 462 (La.App. 3rd Cir. 1976).

For the reasons assigned, the judgment appealed from is affirmed. All costs taxed to appellant.

AFFIRMED.

      . Art. 1702. Confirmation of default judgment
      A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
      When the demand is for a sum due on an open account, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a negotiable instrument, no proof of any signature thereon shall be required.


author: LABORDE, Judge.

text:
    COMMISSIONER OF AGRICULTURE, State of Louisiana, Plaintiff-Appellee, v. Alcide FONTENOT, d/b/a Alcide Fontenot Slaughter House, Defendant-Appellant.
    No. 8708.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.

      Preston N. Aucoin, John Saunders and Anthony Walker, Ville Platte, for defendant-appellant.
    Riddick & Leake, Robert S. Leake, Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This is a suit for an injunction authorized by LSA-R.S. 40:2297 of the Meat and Poultry Inspection Act. The Commissioner of Agriculture (Commissioner) filed suit to enjoin Alcide Fontenot, d/b/a Alcide Fonten-ot Slaughter House, from the continued operation of his slaughterhouse in violation of the Meat and Poultry Inspection Act, LSA-R.S. 40:2271 et seq. From a judgment granting the injunction, defendant suspen-sively appeals. For the reasons which follow, we affirm.

The issues raised on appeal are:

(1) Did the petition contain sufficient allegations of fact?
(2) Is an adjudicatory hearing a condition precedent to the Commissioner’s seeking an injunction under LSA-R.S. 40:2297?
(3) Were defendant’s Sixth Amendment (right to a jury trial) and Fifth Amendment (right against self-incrimination) rights violated?
(4) Were defendant’s procedural due process rights violated?

The commissioner filed suit on August 17, 1981, seeking a temporary restraining order and preliminary and permanent injunction against Mr. Fontenot’s continued operation of his slaughterhouse in violation of the Meat and Poultry Inspection Act. Several exhibits, including, a transcript of a previous Adjudicatory Hearing involving Mr. Fon-tenot’s operations, were attached to the petition and on the strength of the petition and exhibits, the trial court issued the temporary restraining order and set hearing on the preliminary injunction for August 26, 1981.

At the initial hearing, Mr. Fontenot filed certain motions and exceptions seeking the following: exclusion of evidence adduced at the Adjudicatory Hearing; dissolution of the temporary restraining order; a jury trial claiming that the proceeding against him was in the nature of a criminal proceeding; and dismissal of the Commissioner’s petition for failure to set forth facts sufficient to state a cause of action. On that date, the temporary restraining order dissolved on its own right, the judge in his discretion having refused to extend it.

At the second hearing, the trial court ruled adversely to Mr. Fontenot on all motions and exceptions, but expressed some concern, due to the statutory scheme of the Meat and Poultry Inspection Act, over Mr. Fontenot’s Fifth Amendment right against self-incrimination. At this juncture, as plaintiff was preparing to commence the presentation of evidence, counsel for Mr. Fontenot called for a recess. Mr. Fonten-ot’s counsel indicated he would stipulate that sufficient facts existed to sustain the issuance of a preliminary injunction but would immediately seek a suspensive appeal. The lower court granted the preliminary injunction and allowed Mr. Fontenot to appeal suspensively.

We begin with the issue of whether the petition alleged sufficient facts to state a cause of action.

In Louisiana, liberal rules of. pleading prevail. Each pleading should be so construed as to do substantial justice to the parties. LSA-C.C.P. art. 865. When the court can reasonably do so, it will maintain a petition so as to afford the litigant an opportunity to present his evidence. Pence v. Ketchum, 326 So.2d 831 (La.1976); and authorities cited therein.

In ruling upon the exception of no cause of action, all well-pleaded facts in the petition must be taken as true, and, if the allegations set forth a cause of action, the exception must be overruled. Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961).

In Elliott v. Dupuy, the court stated:

“It is well settled that an exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers; that for the purpose of determining the issues raised by this exception, the well pleaded facts in the petition and any annexed documents must be accepted as true, and that a suit will not be dismissed on exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand.”

I i the instant case, the Commissioner seeks to enjoin Mr. Fontenot’s contumacious operation of his slaughterhouse in violation of the Meat and Poultry Inspection Act, supra. The original petition alleged in paragraph 2 that Mr. Fontenot was licensed to operate a slaughterhouse; in paragraph 7 that he had failed or refused to comply with regulations governing sanitation; in paragraph 8 that he was informed of regulatory deficiencies; in paragraph 9 that he agreed to correct certain deficiencies; in paragraph 10 that despite an extension of time Mr. Fontenot failed to correct all the deficiencies; in paragraph 18 that he was informed of the withdrawal of inspection services at his slaughterhouse; and in paragraph 19 that despite suspension of his authority to operate an inspected facility, Mr. Fontenot was continuing to operate his slaughterhouse. In the amended petition, it was alleged in paragraph 22 that Mr. Fon-tenot had operated the slaughterhouse in an unsanitary condition for 10 years, and in paragraph 23 that he was continuing to operate the slaughterhouse without a license to do so. In addition, attached to and made a part of the petition were copies of various documents detailing the specific unsanitary conditions.

The lower court overruled the exception stating, “I think you were adequately notified by the proceeding what the nature of the proceeding is.”

The Commissioner’s action is based upon the Meat and Poultry Inspection Act. LSA-R.S. 40:2271 et seq. The Commissioner’s petition informed Mr. Fontenot that pursuant to this Act, he must defend an injunction against operating without a license and under unsanitary conditions. In fact, during the second hearing on the preliminary injunction, counsel for Mr. Fonten-ot went so far as to stipulate that the facts would be sufficient for the issuance of an injunction without the necessity of presenting evidence. Under these circumstances, we see no reason to disturb the lower court’s overruling of Mr. Fontenot’s exception of no cause of action, and so hold.

We next concern ourselves with whether the Commissioner is entitled to seek an injunction under LSA-R.S. 40:2297.

Mr. Fontenot argues that the action for injunctive relief must be dismissed because an adjudicatory hearing is a condition precedent to seeking injunctive relief under 40:2297 and.since the transcript of the adjudicatory hearing was withdrawn as an exhibit, this condition precedent was not met.

LSA-R.S. 40:2297(C), provides:

“C. The commissioner is hereby authorized to petition any court of competent jurisdiction for writs of mandamus, commanding any person, firm or corporation to comply with the provisions of this Chapter or any order or regulation of the commissioner authorized by said Chapter, and/or for writ of injunction, restraining and enjoining any person, firm or corporation from violating this statute or any regulations promulgated by the commissioner pursuant to said statute.” (Emphasis supplied)

Nowhere does the act contain any requirement for an adjudicatory hearing as a condition precedent to initiating such an action. For this reason, Mr. Fontenot’s argument to the contrary lacks merit.

We next consider whether Mr. Fon-tenot’s Sixth Amendment right to a jury trial was violated.

LSA-C.C.P. art. 1733(3) is specific authority for the denial of trial by jury in a suit for injunction. Notwithstanding this article, Mr. Fontenot, in brief, contends that, “. . . the only sanctions provided for against Alcide Fontenot are criminal ones contained in LSA-R.S. 40:2296 ...” He continues, “and that, your Honors, is the reason why Fontenot cannot be tried by a Judge alone in a civil proceeding. The sanctions against him are criminal ones— not civil ones, and the United States Constitution (Sixth Amendment) says he is entitled to be tried before a jury — not before a judge alone.” (Appellant’s Brief p. 12) In support of his contention, Mr. Fontenot relies on Louisiana Livestock Sanitary Board v. Johnson, 372 So.2d 585 (La.App. 3rd Cir. 1979), writ denied 373 So.2d 967 (La.1979).

While it may be true that LSA-R.S. 40:2296 of the Meat and Poultry Inspection Act provides criminal penalties, appellant overlooks the fact that the act is a multifaceted one and that the Commissioner is not proceeding under Section 2296 but is instead proceeding under Sub-paragraph C of Section 2297. Sub-paragraph C of Section 2297 authorizes the Commissioner to petition the court for writs of injunction enjoining any person subject to the statute from violating same. This Sub-paragraph C was added by Act 615 of the Regular Session of 1970, where, in the preamble to the Act, it is stated that the purpose of the Act is, “. . . to provide penalties for violations, injunctive relief and other enforcement proceedings; ...” Thus, we view the statutory scheme as providing for criminal penalties under the appropriate factual situation, civil injunctive relief under the proper circumstances, and other enforcement provisions, again, under the proper circumstances. Our review of the record convinces us that the proper circumstances existed to warrant the Commissioner’s proceeding under Sub-paragraph C of Section 2297. Mr. Fontenot’s argument that Section 2296 provides criminal penalties and thus entitles him to a jury trial, while it may be a correct statement of the law, does not conform to the facts of the instant case. For that reason, the argument lacks merit. Mr. Fontenot’s reliance on the Johnson case is likewise misplaced. The language in Johnson concerning the right to a trial by jury was expressly directed to a situation where the penalties to be imposed were found to be criminal. That not being the case here, Johnson has no application.

To recap, the Commissioner’s only request in the present case is for an injunction as allowed by LSA-R.S. 40:2297 C. This is a strictly civil remedy. Moreover, the Code of Civil Procedure specifically directs that there shall be no trial by jury in an injunction proceeding. Hence, Mr. Fontenot’s contention that his Sixth Amendment rights were violated lacks merit.

Mr. Fontenot next argues that his Fifth Amendment right against self-incrimination was violated. In support of this argument, he claims that if he, “would have testified in the civil case, then his testimony could have been used against him on the criminal side of the Court should the Commissioner decide to institute criminal proceedings against him which can undisput-ably be done under LSA-R.S. 40:2296....” (Appellant’s Brief p. 13).

The defendant undoubtedly had the right to assert his Fifth Amendment privilege against self-incrimination if he had taken the stand and testified in the trial court. However, the Fifth Amendment privilege is personal to those entitled to invoke it, and does not extend to the testimony of third parties called as witnesses at trial, United States v. Nobles (1975), 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, on remand 522 F.2d 1274; Schmerber v. State of California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. As Justice Holmes remarked in Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913), “A party is privileged from producing the evidence but not from its production.” The Fifth Amendment privilege adheres to the person, not to information that may incriminate him. Andresen v. Maryland, 427 U.S. 463, 475, 96 S.Ct. 2737, 2745, 49 L.Ed.2d 627, (1976), Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). Thus this defendant cannot use the privilege personal to him to block the presentation of adverse evidence through third person witnesses.

The defendant may very well have pressure to testify in order to defend himself in this action, at the risk of having his statements used against him in a possible future criminal prosecution. However, the “mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination.” Barnes v. United States, 93 S.Ct. 2357, 2363, 412 U.S. 837, 847, 37 L.Ed.2d 380 (1973). Before there can be a violation of the Fifth Amendment, three conditions must be met.

(1) The compulsion. ..
(2) of a testimonial communication.. .
(3) that is incriminating.

If any of these conditions is not met, compelled self-incrimination within the Fifth Amendment is not at stake. United States v. Authement, 607 F.2d 1129 (5th Cir. 1979). The defendant chose not to testify in the lower court; therefore, there was no communication on his part, much less one that was compelled or incriminating. If he chooses to testify, he may assert the privilege to any question, the answer to which may tend to incriminate him. Thereafter incriminating testimony from the witness waives the privilege. The privilege against self-incrimination protects a party from compulsion, not from the use of evidence which, although incriminating, is obtained from another source or from him after waiver of the privilege. This argument of Mr. Fontenot lacks merit.

Mr. Fontenot’s final argument is that his procedural due process rights were violated in an Adjudicatory Hearing held prior to and independently of the present suit for injunction.

LSA-R.S. 49:964 provides that proceedings for judicial review of an administrative hearing may be instituted by filing a petition within 30 days of the mailing of notice of the final decision of the agency. R.S. 49:964 subpart G specifically authorizes judicial review of final decisions of the agency, and authorizes the court to reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative decision was in violation of constitutional or statutory provisions, or made upon unlawful procedure such as a denial of due process.

The defendant did not avail himself of subpart G by filing a petition within 30 days of the mailing of notice of the decision made by the Department of Agriculture. Therefore, the decision of that administrative agency is final, and the defendant is precluded from raising any due process infirmity in the administrative hearing. The fact that judicial review of the administrative hearing was available to the defendant satisfied due process. Anderson v. State, 363 So.2d 728 (La.App. 2nd Cir. 1978). He may not attack here collaterally what he cannot do directly, thus Mr. Fontenot’s argument lacks merit.

For the above reasons, the judgment appealed from is affirmed. All costs of appeal are assessed against defendant-appellant.

AFFIRMED.

      . Since the original petition sought, in addition to an injunction, an ex parte temporary restraining order, these documents, attested to by a sworn affidavit, were attached as exhibits to establish plaintiff’s entitlement to the temporary restraining order. See LSA-C.C.P. art. 3603. At the conclusion of the first hearing on the request for a preliminary injunction, held on August 26, 1981, the judge ruled that the hearing would be re-set for September 8, 1981, and that the temporary restraining order would be allowed to expire without being extended. In light of this, the exhibits were no longer necessary as support for the temporary restraining order. Moreover, since the issuance of a preliminary injunction may be tried by proof as in ordinary issues, LSA-C.C.P. art. 3609, the exhibits were withdrawn as superfluous at that point. Nevertheless, Mr. Fontenot was served with the original petition and had notice of the full details of its exhibits.


text:
    Roy J. NORTON, Plaintiff-Appellee, v. Alton THORNE, Defendant-Appellant.
    No. 8712.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    William E. Skye, Alexandria, for defendant-appellant.
    Irving Ward-Steinman, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   LABORDE, Judge.

This suit involves a dispute over a servitude of passage. Defendant, Alton Thorne, appeals an adverse summary judgment granted in favor of plaintiff, Roy J. Norton.

Finding the existence of genuine issues of material fact which must be resolved upon the merits, we reverse and remand this matter to the trial court.

Norton’s petition asked 1) for recognition of a servitude of passage across certain real estate, 2) that Thorne be ordered to remove a fence which allegedly interfered with the use of the servitude, 3) for an injunction prohibiting Thorne from interfering with Norton’s use of the servitude, 4) for damages for loss of income, loss of use, pain and suffering and harassment, and 5) for $2,500 in attorney’s fees.

In his answer, Thorne affirmatively alleged that the servitude of passage was a common driveway which served two (2) houses located on one (1) piece of property formerly owned by one (1) individual. Further, Thorne alleged that the driveway was never used by the public and that the servitude was never acquired by anyone. He admits that he constructed the gate and fence on his own property but claims Norton’s right of passage is not obstructed since Norton’s property fronts on Louisiana Highway 8. Thorne further alleges that since Norton has ample highway frontage for ingress and egress to his property there is no need for use of the alleged servitude.

Together with his Motion For Summary Judgment, Norton filed four (4) affidavits of local residents who had used the road to visit friends who once owned or occupied the properties now owned by Norton and Thorne.

Thorne countered with an affidavit in opposition to the Motion For Summary Judgment again stating that he erected a fence on his own property and that the fence does not interfere with the ingress and egress of anyone to any property other than his own.

Thorne further stated that no servitude has ever existed over his land and no member of the public has ever used any so-called servitude.

The trial judge sustained the Motion For Summary Judgment for the following reasons:

“This case comes before the court on a Motion for Summary Judgment. For reasons assigned, the motion is sustained and judgment rendered in favor of plaintiff.
The matter is not as complex as such things often are. In this instance, there was never a right of passage as there is no enclosed estate and both properties border on the blacktop. The question of any sort of tacit dedication of the road at issue also seems moot to this court as the path was used only as a private drive to the two properties (although the police jury may have graded it at times).
Articles 654, 705, 707, 740, and 742 of the Louisiana Civil Code discuss servi-tudes, particularly predial servitudes— wherein a right or interest vests in one estate and a corresponding duty or obligation is incumbent upon another estate. These rights are inbedded [sic] in the soil, that is, they attach to the land, irrespective of the person [sic] who own or possess the property.
It is the opinion of this court that a Servitude of Passage, (C.C. § 705), a conventional servitude, was acquied [sic] by the Norton property through acquisitive prescription as outlined in C.C. § 740 and § 742.
The fence erected across the driveway by the owner of the Thorne property violated said servitude. Defendant is cast for all costs of these proceedings and judgment is rendered in favor of plaintiff in the amount of $500.00.”

Thorne urges two (2) assignments of error:

“1) The trial judge was incorrect in granting the Motion for Summary Judgment and in recognizing the servitude, since there was a genuine issue as to material fact; and
2) The trial judge was in error in granting Five Hundred and no/100 ($500.00) Dollars damages in the absence of any evidence.”

Louisiana Code of Civil Procedure Article 966 provides that a mover is entitled to summary judgment if the pleadings, depositions, admissions on file, affidavits, and answers to interrogatories show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

In the recent case of Holiday City Builders v. Acadian Aviation Corp., 386 So.2d 1019 (La.App. 3rd Cir. 1980), we discussed the applicable law regarding motions for summary judgment:

“In Mashburn v. Collin, 355 So.2d 879 (La.1977), the Louisiana Supreme Court stated, at page 890:
“... where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion.”
In Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4 Cir. 1976), the cour... stated, at page 542:
“It is well settled in our jurisprudence that a motion for summary judgment is not a substitute for trial. Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973). A mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of a summary judgment and thus deprive the litigant of a trial. Banes v. Prinz, 185 So.2d 50 (La.App. 4th Cir. 1966).” [Emphasis Provided]2”

In the present case there is no evidence in the records as to the ownership of the property. Furthermore, the facts contained in the affidavits filed by Norton were contradicted by the affidavit filed by Thorne. Thorne stated that he constructed the fence on his property, that it did not interfere with anyone’s ingress and egress since it led only to his property and that no member of the public ever used the servitude. Norton’s affidavits were completely to the contrary.

We conclude that genuine issues of material fact exist as to the ownership of land on which the servitude is located, its use by the public, and Thorne’s right to fence his own property.

Although we agree with appellant that the trial court erred in awarding damages absent any proof, we need not address this issue due to our holding above.

Accordingly, the summary judgment in favor of Roy J. Norton is annulled and set aside. The matter is remanded for further proceedings; assessment of costs to await disposition on the merits.

ANNULLED, SET ASIDE AND REMANDED.

      . We annex hereto a plat of survey dated August 5, 1980, prepared by Daniel D. Sandefur, which was attached to Norton’s Motion For Summary Judgment.