author: CHEHARDY, Judge.

text:
    Guy LAVENIA and Alyce Lavenia, Individually and as Husband and Wife v. NATIONAL BUSINESS CONSULTANTS, INC., Jerry Allen and Jody Allen, Individually and as Husband and Wife, D/B/A Mr. Rooter, and/or Mr. Rooter, Inc., and/or A-AAA Mr. Rooter, Inc.
    No. 5-238.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      James D. Maxwell, Kenner, for plaintiffs-appellees.
    Gary M. Bougere, Metairie, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

Defendant National Business Consultants, Inc. (National), appeals from a judgment ordering it to return to plaintiffs, Guy and Alyce LaVenia, $3,500 which they had deposited with defendant as broker for their purchase of a sewer- and drain-cleaning business, and further to pay $750 attorney’s fees. We affirm in part and reverse in part for the reasons set forth below.

The trial judge’s statement of the facts in his Reasons for Judgment is clear and concise. Accordingly, we adopt it here:

“Plaintiffs, Alyce and Guy LaVenia, answered an advertisement in a local newspaper for the sale of a sewer and drain-cleaning business, including trucks and equipment. Plaintiffs called the number given in the advertisement and were advised by defendant, National Business Consultants, through Robert Namer, that he was the broker for an unnamed seller. He indicated to plaintiffs that the business franchise which was for sale, included numerous business machines, office desks and equipment, two (2) vans and several mobile and base station radios.
“Prior to placing the sales ad in the newspaper, Mr. Namer, a business consultant, personally went over the books of the business and analyzed the yearly income from the sewer and drain business to be approximately One Hundred Twenty-Five Thousand and No/100 ($125,-000.00) Dollars. This figure was given to plaintiffs on their first meeting to discuss purchasing the business.
' “At the second meeting between the LaVenias and Mr. Namer, Jerry Allen, co-owner of the business, was present. It was at this meeting that the name of the franchise for sale, Mr. Rooter, was first revealed to plaintiffs. At this time, defendants, Mr. Allen and Mr. Namer, told plaintiffs that the franchise was free to be sold. Plaintiffs, being somewhat familiar with the particular business in question, were aware that Mr. Allen’s business also included plumbing, and asked if the yearly gross quoted to them earlier included his plumbing business. Mr. Namer assured the LaVenias that the income from the plumbing business was separate. Mr. Namer was repeatedly asked by the LaVenias, and even their attorney, for access to the financial reports of Mr. Rooter, but were told by Mr. Namer that, primarily for competitive reasons, they would not be able to review the books until they had furnished to him ‘good faith’ money in the amount of Three Thousand Five Hundred and No/100 ($3,500.00) Dollars. The LaVeni-as testified that Mr. Namer told them they would get all of this ‘good faith’ money back if the financial status of Mr. Rooter was not as he had represented.
“The morning after plaintiffs had signed the purchase agreement and furnished the ‘good faith’ money, Mr. Allen called them and informed them that the figure given them by Mr. Namer was wrong, and that in fact, the more accurate yearly gross figure was approximately one-half of that. The LaVenias immediately contacted Mr. Namer and informed him of the conversation, but Mr. Namer insisted that the parties still must go through with the act of sale.
“Within ten (10) days after the agreement to purchase was signed, the Allens’ attorney contacted Mr. Namer and informed him of the false information in the agreement. He told Mr. Namer that the sale could not be consummated because the Mr. Rooter franchise required that Mr. Allen had to get permission from the home office in Oklahoma for any sale of Mr. Rooter. Additionally, the two (2) vans included in the agreement were under full lease, and as such, the Allens did not have title to sell. The witness further stated that the Allens left town before the date of the act of sale. Further, Mr. Allen sold his share in the business before the date of the act of sale, but after the agreement to purchase was signed.”

When National did not respond to the LaVenias’ demand for return of their deposit, the LaVenias filed suit against National and the Allens. Plaintiffs sought return of the deposit, payment of the costs they incurred in preparing for the aborted sale, attorney’s fees and court costs. National answered and reconvened, demanding that plaintiff pay its commission plus attorney’s fees and costs. (National did not file a third party demand against the Al-lens.) Although Jody Allen apparently had been served with the LaVenias’ suit, no answer was ever filed on behalf of her, Mr. Allen or their Mr. Rooter business. A preliminary default was taken against Jody Allen, doing business as Mr. Rooter, Inc., and/or A-AAA Mr. Rooter, Inc. The Al-lens were absent and unrepresented at trial.

The trial judge concluded the crux of the matter lay in the provisions of the agreement to purchase or sell signed by the parties on August 16, 1978. He cited the following portions:

“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof, and reserving unto agent the right to recover commission. [Lines 32-34.]
% * * Sfí í}! if!
“Either party hereto who fails, for any reasons whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the agent’s commission and all reasonable attorney’s fees and costs incurred by the other party, and/or agent in enforcing their respective rights. [Lines 44 — 45.]”

The agreement also stated the act of sale was to be passed on or before October 1, 1978.

The trial judge decided the agreement to purchase or sell was null and void because the sellers were unable to convey merchantable title within the stipulated time, as required in the agreement. The judge also determined it was the sellers rather than the purchasers who failed to comply with the terms of the offer. Consequently, he concluded the purchasers were not obligated to pay the agent’s commission. He awarded judgment in favor of the LaVenias against all of the defendants in solido, both for the $3,500 deposit and for $750 in attorney’s fees, plus legal interest and all costs. Only National has appealed.

In its brief National urges numerous errors on the part of the trial judge in determining its right to a commission. Most of these are irrelevant. The decision of the trial court was directed only to whether the LaVenias, the purchasers, owed a commission to the broker; the broker’s right to a commission from the Allens was not at issue.

The agreement to purchase or sell provided that the seller was to pay the agent’s commission, which was to be considered earned when the agreement was signed by both parties. The only exceptions were Lines 44-45, quoted above, and another paragraph, Lines 38-41, which provided that if the purchaser failed to comply with the agreement within the time specified, the deposit could be considered forfeited upon the seller’s tender of title to the purchaser;’ and if the deposit were forfeited, the commission would be paid out of it.

Lines 38-41, relative to forfeiture of the deposit, are not applicable to this situation. The seller here never tendered title.

Lines 44r45 state that either party who fails to comply with the agreement is obligated to pay the commission. Similar clauses have been interpreted by prior jurisprudence. Those cases have held a broker is not entitled to a commission without regard to subsequent events. To recover a commission from the buyer on the contract to purchase, the broker must show either that the contract was breached because of the buyer’s fault or that the buyer agreed with the seller to rescind the contract. Dapremont v. Crossley, 367 So.2d 127 (La.App. 4th Cir.1979), writ denied 369 So.2d 710; Becker v. Johnson, 350 So.2d 1259 (La.App. 4th Cir.1977). Such a provision in a sale-purchase agreement is intended to insure the parties would not mutually agree to cancel the sale to the prejudice of the broker’s commission. Williams v. Bel, 339 So.2d 748 (La.1976).

While there is evidence in this case that the Allens and the LaVenias eventually did agree to waive appearances at the act of sale, it is clear this was due to a breach on the Allens’ part rather than the LaVeni-as. Specifically, Mr. Allen had changed his mind about selling to the LaVenias and had moved out of the state. Thus, any failure to comply by the LaVenias was preceded by a failure to comply by the sellers. We conclude, as did the court in Becker v. Johnson, supra, that the broker has not proven breach by the purchasers which alone would make them liable for the broker’s commission if any is due. 350 So.2d 1259 at 1260.

National also asserts the trial court erred because there was no real evidence that merchantable title could not pass and that curative work could not be effected. The objection is inapposite. The evidence established not only that Mr. Allen’s interest in the business was sold to a third party before October 1, 1978, but also that the Allens did not own the vans which were to be part of the sale. In addition, they were required to obtain approval of the franchisor before selling the franchise, which approval was never sought. In light of this evidence, the trial judge was correct in concluding the sellers were unable timely to convey merchantable title. Accordingly, the LaVenias were entitled to demand return of their deposit from National. Munster v. Palama, 198 So.2d 405 (La.App. 4th Cir.1967); Schroeder v. Krushevski, 186 So.2d 640 (La.App. 4th Cir.1966).

Further, it was not the purchasers’ burden of proof to establish that curative work could be performed to render the sellers’ title merchantable. “The prospective buyer in an agreement to buy and sell cannot be called upon to accept a title which reasonably suggests future litigation.” Kempff v. Morgan, 291 So.2d 520, 523 (La.App. 4th Cir.1974), overruled on other grounds, Lanusse v. Gerrets, 357 So.2d 45, 46, 48 (La.App. 4th Cir.1978).

Appellant objects that the trial court allowed the introduction of hearsay evidence by plaintiffs to prove that the gross income figures stated by National in its preliminary analysis were false. This issue is irrelevant. The judgment of the trial judge was not based on misrepresentation or fraud on the part of either the sellers or the broker, but only on the sellers’ failure to deliver merchantable title, and their “failure to comply with the terms of the offer.”

Furthermore, appellant’s objections to the introduction of the hearsay evidence must be deemed to have been waived when this same hearsay evidence was repeated on cross-examination under the questioning of appellant’s own counsel. Finally, hearsay evidence is admissible to prove that a statement was made, although not to prove the truth of that statement. Nolan v. Liuzza, 301 So.2d 892 (La.App. 4th Cir.1974). Thus, Mr. and Mrs. Lavenia’s testimony that Mr. Allen told Mrs. LaVenia that Mr. Rooter was earning only half the amount shown on the purchase agreement was admissible, if only to show he made that remark to Mrs. LaVenia.

Appellant also raises the issue of its listing agreement on behalf of the sellers. This is irrelevant to the question of the broker’s rights vis-a-vis the purchasers.

Similarly, appellant’s allegations that the trial court erred in “upholding [plaintiffs’] contention of fraud” is immaterial. The trial judge made no reference to fraud as the basis for his decision.

On the other hand, we agree with appellant’s contention that National, as broker, should not have been held liable for plaintiffs’ attorney’s fees. There is no provision, either in law or in the purchase agreement, to hold a broker liable for a purchaser’s attorney’s fees in these circumstances.

For the foregoing reasons, the judgment of the district court is reversed insofar as it held appellant, National Business Consultants, Inc., liable for plaintiffs’ attorney’s fees. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    MERCHANTS TRUST AND SAVINGS BANK v. Vincent FRANZONE.
    No. 5-286.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    Rehearing Denied Feb. 17, 1983.

      J. Robert Hoepffner, Metairie, for plaintiff/appellee.
    J.R. Martzell, New Orleans, for defendant/appellant.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   BOWES, Judge.

This is the second appeal of a case which originally began as an action to cancel certain leases from defendant to plaintiff. In the first appeal, Merchants Trust and Savings Bank v. Franzone, La.App., 388 So.2d 851, the Fourth Circuit reversed the trial court, finding defendant Franzone did not prove the fairness of his transactions. As past president and major stockholder of plaintiff bank, Franzone had the burden of proof because of his fiduciary relationship with the plaintiff. The appellate court rendered judgment avoiding the leases by Franzone to the bank and against Franzone for all rent paid by the bank to defendant since 1972.

“The matter is remanded to the trial court solely for the purpose of determining the amount to be paid by Franzone to the plaintiff in the event the parties cannot agree thereon.” Merchants, supra.

Upon remand, defendant urged the peremptory exceptions of prescription, no cause and no right of action. Plaintiff pleaded that the matter was res judicata. The trial court dismissed defendant’s exceptions. A hearing was held in regard to rents paid by the bank to Franzone in accordance with the Fourth Circuit directive. The trial court awarded plaintiff $69,232.54 representing all rental payments made by the bank to Vincent Franzone, with interest, pursuant to the subject 1972 lease, through June 11, 1981, and a per diem rate of $14.08 to be added from June 12, 1981 until paid (the per diem rate represents legal interest). From this the defendant appeals, claiming as his specifications of error:

1. The trial court erred in ruling that the plea of prescription was barred as res judicata.
2. The trial court erred in failing to consider evidence on the trial of the damage issue proffered by Franzone to reduce the amount owed to the bank as rent.

In order to address these issues, we find we must reiterate some facts and findings from the original appeal. Defendant Fran-zone was a controlling shareholder and, later, president of plaintiff bank. In 1950, the bank leased a building on Airline Highway with a 39-year lease; in 1964, the bank subleased the entire area to Franzone for the rents due under its lease, except for the vault, the attic and two rear rooms. Then, in 1972, Franzone then subleased the area in the rear for an amount equal to the lease rent Franzone was paying.

The Fourth Circuit’s decision required the trial court to compute the rent paid by and found due to the plaintiff, in the event that the parties could not agree. The parties did not agree, and the matter was heard before the trial court. At the hearing, the defendant attempted to introduce evidence or testimony relative to rents the bank received from other tenants in the building, as well as evidence of improvements made by Fran-zone, all for which defendant claimed credit against any monies due by him. Testimony from Franzone and certain other bank employees was proffered after the trial court sustained plaintiff’s objection that such testimony was irrelevant in light of the Fourth Circuit decision.

Defendant raises the issue of prescription, claiming that the Court of Appeal nullified the defendant’s 1972 lease, that a complaint was not filed until 1978, and that actions for nullity prescribe in five years (C.C. art. 3542). The exception of prescription is a peremptory one. (C.C.P. art. 927). The peremptory prescription may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. (C.C.P. art. 928). When an exception of prescription is filed after the case is submitted for a decision, the appellate court cannot consider it. (C.C.P. art. 2163); Payne v. Trichel, 397 So.2d 16 (La.App. 3rd Cir.1981). The defendant cites Bye v. Giarusso, 321 So.2d 58 (La.App. 4th Cir.1975) to stand for the proposition that prescription can be raised after a case is remanded for trial. Bye is not dispositive of the issues in this case, inasmuch as the Bye case was remanded for trial, to permit the plaintiff to present evidence as to the constitutionality of the statute in question. The present case was remanded after the case was tried. The remand was for computation of the exact amount of the judgment owed, not for trial or reconsideration of issues presented on appeal. The appeal court decision on the merits of this case is final and res judicata as a conclusive determination between the parties regarding the issues decided therein. The comments of counsel for plaintiff, on page 9 and 10 of the transcript, indicate that the issue of prescription was argued in both the Fourth Circuit and the Supreme Court, which denied writs after the decision of the Fourth Circuit was handed down, and that neither bench was persuaded; nor are we.

Accordingly, we affirm the trial court’s dismissal of defendant’s exception of prescription.

The Fourth Circuit rendered judgment against Franzone “for all rent paid by the bank to Franzone since 1972.” Thus, it would appear that the appellate court intended to limit plaintiff’s recovery to rent paid, and does not include any damages over and above the sum of rent. The obvious unfairness of Franzone’s actions and, as the Fourth Circuit put it, his “betrayal” of his fiduciary relationship to the bank, lends support to our appreciation of that judgment. Nor does the judgment seem to permit Franzone to raise the issue of set-off. There is no mention of any credits to which the defendant may be entitled, although it appears that some evidence on the subject was had at the first trial. In its opinion, the Fourth Circuit stated: “His records treated all his rental properties as one, and he could not show what maintenance costs he spent or what rentals he received on what property.” We are of the opinion that during the first trial was the time to present all evidence regarding set-offs or credits of any kind which may have been claimed by Franzone.

Also, during the first trial, there was evidently testimony as to rent paid by other people to the bank during the period in question, which the defendant did not receive (Trans, p. 17, statement of defense counsel). We do not have the benefit of the record before the remand to the trial court. The transcript on the first appeal is unavailable to us. From the above references, however, we gather that the evidence which defense counsel seeks to admit at this time was considered in the original trial and appeal. The appellate court was aware of whatever records Mr. Franzone had and chose to introduce into evidence in the first trial; they were, as well, aware that other tenants paid rent to the bank, which Mr. Franzone did not receive. From the very narrow wording of the opinion, we must conclude that the Court found no merit in defendant’s contention. We feel certain that the Court considered all relevant evidence when reaching its conclusion, and that had it intended its opinion to credit defendant for maintenance costs or rents, or to allow further evidence of these or any other credits to be introduced at the trial after remand, it would have so stated.

The Appellate Court simply did not have before it sufficient information to reach a monetary figure, and so the case was remanded for computation only of the amount to be paid to the bank. To allow Franzone now to present additional evidence on any credits claimed by him would permit him to have “two bites at the apple”, would be obviously inequitable and a violation of proper trial and evidentiary procedure. The Court expressly rejected defendant’s argument referring to his maintenance costs, and, we believe, by implication, also rejected Franzone’s argument regarding other credits or rents paid.

Hence, we find that the trial judge properly refused to consider evidence sought to be introduced by Franzone as reductions against any amount owed by him to the bank.

For the above and foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    Daniel CUPIT, Sr., as the sole surviving parent, and Administrator of the Estate of his child, Terry Dale Cupit, Plaintiff-Appellant, v. Louis Neal GRANT, et al., Defendants-Appellees.
    No. 82-448.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Roy S. Halcomb, Jr., of Broussard, Bolton & Halcomb, Alexandria, and Roy S. Hal-comb, Sr., Ferriday, for plaintiff-appellant.
    Charles S. Norris, Jr., Jonesville, Davenport, Files, Kelly & Marsh, Thomas W. Davenport, Jr., Monroe, Theus, Grisham, Davis & Leigh, J. Bachman Lee, Monroe, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal emanates from a death action and a personal injury suit wherein the trial court granted motions for a directed verdict filed by Louisiana Delta Plantation and other defendants on the ground that Louisiana Delta was neither employer of, nor a joint venturer with, Louis Grant (tort feasor), at the time of the fatal automobile accident.

On June 21, 1976, a pickup truck driven by Grant crossed the centerline of the highway and collided head-on with an automobile driven by Edward L. Youngblood. Two of the occupants of the Youngblood automobile were Terry Dale Cupit (minor) and his mother, Charlotte Anne Buckles Young-blood. The minor Cupit was seriously injured and Mrs. Youngblood was killed.

This suit was filed by Daniel Cupit, Sr. (plaintiff), individually and as the duly qualified provisional tutor of his minor children, Daniel Cupit, Jr., Terry Dale Cupit and Sherry Gayle Cupit. Daniel Cupit, Sr., was formerly married to Mrs. Youngblood. The three children were born of this marriage. Cupit and his wife divorced and custody of the children were awarded to the wife who later married Edward Young-blood. Recovery was being sought for the general and special damages resulting from the injuries sustained by Terry Dale Cupit and for the wrongful death of the mother of Terry Dale, Daniel, Jr., and Sherry Gayle Cupit.

In addition to the drivers of the two vehicles, Grant and Youngblood, Louisiana Delta Plantation, Morrison Grain Company, Inc., Morrison-Quirk Grain Corporation, the Aetna Casualty & Surety Company (Aetna) were named defendants. Louisiana Delta Plantation is a joint venture made up of two foreign corporations, Morrison-Quirk Grain Corporation and Morrison Grain Company, Inc. We will refer to these defendants as Louisiana Delta. Aetna was their liability insurer.

Louisiana Delta was sued as the alleged employer of Grant or, alternatively, as a joint venturer, with Grant.

This was a jury trial and at the close of plaintiff’s case the trial court granted motions for a directed verdict filed by Louisiana Delta and Aetna dismissing plaintiff’s suit as to these parties. Plaintiff appeals. We amend and affirm in part and reverse and remand in part.

The issues on appeal are:

(1) Whether the trial court erred in granting Louisiana Delta’s and Aetna’s motions for a directed verdict on the ground that Grant was a lessee of Louisiana Delta (referred to as Morrison Companies by the trial judge) and was neither an employee nor a joint venturer with Louisiana Delta; and
(2) Adequacy of awards.

MOTIONS POR A DIRECTED VERDICT

As we approach this issue we must keep in mind the standard to be used in deciding a motion for a directed verdict in a jury case. This standard is set forth in the case of Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), as follows:

“On Motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

It is plaintiff’s position that the contract between Grant and Louisiana Delta establishes, not a lessee-lessor relationship, but one of employee-employer thereby creating a vicarious liability of Louisiana Delta for the negligent acts which occurred during the course and scope of Grant’s alleged employment. In the alternative, plaintiff contends that the relationship between Grant and Louisiana Delta was that of a joint venture.

We must keep in mind that a directed verdict can be granted only if the facts and inferences point so strongly and overwhelmingly in favor of one party (Louisiana Delta and Aetna) that the court believes that reasonable men could not arrive at a contrary verdict.

The trial court, at the close of plaintiff’s case, granted the motion for a directed verdict holding that the relationship between Louisiana Delta and Grant was that of lessee-lessor and not as an employer-employee or as joint venturers. The trial court gave the following reasons in this regard:

.. The relationship that existed between Grant and the Morrison Companies was one of lessor-lessee and not an employee-employer relationship. In fact, Grant had other leases from other persons at the time of this accident. Grant also had a farming operation on land that he personally owned. Grant had to produce a profitable crop in order to realize any monetary profit. There were no wages paid to him by the Company. Grant had to bear his own loss. In fact, he lost money on his crop. Plaintiff points out that the lease agreement contains several provisions, which upon reading might indicate that the Morrison Companies exercised some degree of control over the tenants; however, I feel that this was adequately explained by the testimony of the Company manager, Mr. Norman Haigh, who explained in effect that this simply provided for services afforded the tenants by the Company to insure good farming practices so that the lease undertaking would stand a better chance of being profitable to both the lessee and the lessor. ”
"... This is a novel idea advanced by plaintiff, but has little or no merit. There were absolutely none of the requirements of a joint venture in the legal relationship that existed between Grant and the Morrison Companies. There was nothing to manifest an intent between the parties to create a joint venture, equal control did not exist between the parties, there was nothing to indicate a sharing of losses. In fact, the Company could profit and the farmer could sustain a loss. There was no indication of a proprietary interest. ”

We disagree with the trial judge’s conclusion that reasonable persons could not possibly have arrived at a conclusion that would favor the plaintiff, even though all inferences were resolved in favor of the plaintiff.

In making a determination of whether an employee-employer relationship exists, an important factor is the element of control or supervision over an individual. In the case of Savoie v. Fireman’s Fund Ins. Co., 347 So.2d 188 (La.1977), the court stated:

“In determining whether an employment relationship exists in other contexts, the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972); Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). Factors to be considered in assessing the right of control are the selection and engagement of the worker, the payment of wages and the power of control and dismissal. Dauzat v. Crites, 237 So.2d 697 (La.App. 4th Cir.1970); Wambles v. State, 283 So.2d 331 (La.App. 4th Cir.1973); Trahan v. State, 158 So.2d 417 (La.App. 3d Cir.1963).”

Control by each party in a joint venture is also an important factor to be considered. In the case of Marine Services, Inc. v. A-1 Industries, 355 So.2d 625 (La. App. 4th Cir.1978), the court stated as follows:

“There are three major requirements for the existence of a joint venture or partnership to be found. First, all the parties must consent to the formation of a partnership. C.C. art. 2805. Second, there must be a sharing of the losses of the venture as well as the profits. C.C. Arts. 2811, 2813, 2814. And last, each party must have some proprietary interest in, and be allowed to exercise some right of control over, the business. Westenberger v. State, Dept. of Education, 333 So.2d 264 (La.App. 1st Cir.1976); Vignes-Bombet Co., Inc. v. Rowe, 288 So.2d 889 (La.App. 1st Cir.1978); Roberson v. Maris, 266 So.2d 488 (La.App. 4th Cir.1972); Hauth v. Iacoponelli, 251 La. 410, 204 So.2d 767 (1967).”

We now turn to the record to determine if a directed verdict was proper under the circumstances, or whether these two issues (employee-employer or a joint venture) should have been presented to the jury for determination.

Louis Grant began farming land owned by Louisiana Delta in 1970. This farming was done according to annual agreements entered into by the parties. We are concerned with the agreement entered into for the year of 1976, as this accident occurred on June 21, 1976. The instrument in question is entitled “Surface Lease From Louisiana Delta Plantation to Neal Grant.” (Grant’s full name is Louis Neal Grant.) The acreage leased was 890 acres. The terms of the instrument in question extended from January 1,1976, through December 31, 1976. In 1976, Grant was farming land owned by himself, by other persons and the Louisiana Delta lands.

In consideration for the contract Louisiana Delta was to receive one-third of all crops grown and harvested by Grant. The cost of seed, fertilizer, insecticides and herbicides was to be shared one-third by Louisiana Delta and two-thirds by Grant. The application costs of these were to be borne by Grant.

The instrument required Grant to farm the land in keeping with the farm practices for the cultivation of crops in the locality of the property. Louisiana Delta reserved the right to determine whether a government crop control program would be accepted or conformed to. Louisiana Delta also reserved the right to select the variety of the seed to be used by Grant. Grant agreed to furnish ample equipment and labor to farm and harvest the premises.

The instrument, in Section XVI, provided as follows:

“Supervision and Control by Lessor
“Lessor retains full supervision and control of the manner and time for plowing, planting, cultivation, fertilizing, poisoning and harvesting of all crops grown, and the failure of Lessee to properly control noxious weeds or to submit to Lessor’s supervision and control of the crops grown shall ipso facto terminate this lease and relieve Lessor of any responsibility or liability to Lessee.
“It is agreed and understood that nothing contained herein shall have the effect of making Lessee an agent or employee of Lessor and nothing herein shall be interpreted to permit Lessor to supervise either Lessee’s employees, servants or Lessee in respect to the time and manner in which Lessee’s machinery or labor is operated or their duties performed except during any period when Lessee is in breach of his obligations under this lease.”

The extent of control and supervision over Grant by Louisiana Delta is unclear, both from a reading of the instrument and the circumstances presented by the record. Section XVI above, first paragraph, reiterates “[fjull supervision and control” over all principal aspects of a farming operation. Grant testified that the words “[pjlowing, planting, cultivation, fertilizing, poisoning and harvesting” generally encompasses an entire farm operation. Norman Haigh, the general manager for Louisiana Delta, stated that the purpose of the provision was to provide Louisiana Delta with authority to terminate the lease and farm any land which the farmer failed to farm.

We conclude that, after a review of the provisions of the instrument, in light of the circumstances presented, reasonable and fair-minded persons may reach different conclusions as to the relationship between Louisiana Delta and Grant; i.e., whether the relationship was that of lessee-lessor, employer-employee or that of joint venture.

The meaning of this Section XVI is and must be interpreted by the trier of fact, the jury. For the trial court to interpret the provisions of the instrument, in light of the circumstances presented, is an invasion of the province of the jury. All issues in a jury case must be presented to and decided by the jury.

We want it clearly understood that we are making no determination of the relationship between Grant and Louisiana Delta. We are only making a determination that, under the circumstances presented, such issues should have been presented to and decided by the jury. The trial court committed manifest error in making this determination on a motion for a directed verdict.

These defendants were dismissed from the suit at the close of plaintiffs case. They participated no further in the trial. Under these circumstances we must reverse the judgment granting the motions for a directed verdict and remand the suit for a new trial as between the plaintiff and these defendants, Louisiana Delta Plantation, Morrison Grain Company, Inc., Morrison-Quirk Grain Corporation and Aetna Casualty & Surety Company. Judgment was rendered against Grant and he has not appealed. Thus the judgment has become final as to him.

ADEQUACY OF AWARDS

Plaintiff, on appeal, seeks an increase in the awards that were granted against Grant. We now proceed to dispose of this issue. The general damage award for injuries received by Terry Dale Cupit and the wrongful death awards to each of the three minor children will be discussed separately. (1) General Damages

The jury awarded nine-year-old Terry Dale Cupit $300,000.00 in general damages and $5,724.06 for stipulated medical damages. Terry Dale sustained a number of injuries in this accident.

Dr. Ronald K. Tischler, the attending physician, stated that Terry Dale was comatose and in moderate respiratory distress when he operated. Dr. William McBride, an internal medicine expert, also attended Terry Dale on the day of the accident and stated that the child experienced “shock lung syndrome.” Such a condition describes damage to the small blood vessels in the lung (capillaries) due to lack of oxygen to the blood vessels. Fluid in the lungs often occurs as a result of this damage. Dr. McBride further testified that this type of injury can impair the oxygenation of the brain which, if long enough, can cause brain damage.

Dr. T.E. Brooks, an orthopedist, also treated Terry Dale on the day of the accident. Dr. Brooks stated that Terry Dale had sustained a communited open fracture (opening in the skin where the bone apparently came through the skin) of the femur and a closed fracture of the tibia. Dr. Brooks set the fractures by surgically placing pins in the bone which left a six inch scar on the thigh and caused the child to be nonambulatory for at least ten days.

Terry Dale has experienced what appears to be permanent complication arising from injuries sustained in the accident. Dr. Chester Fresh, a neurosurgeon, treated Terry Dale twenty months after the accident on a referral from Dr. Banks. Dr. Fresh found the child to have sufficient spasticity (sustained contracture of the muscles) from the elbow to the hand to significantly limit the use and function of his right hand. Dr. Fresh also found Terry Dale to have an aspastic walk. Such a condition describes an impairment of the free flowing movement of the arm and leg. With such an impairment, Dr. Fresh states Terry Dale is incapable of walking at a quick pace, climbing, bending, squatting and might later incur back problems in the form of scoliosis (curvature of the spine).

Dr. Fresh stated that these conditions were caused by direct trauma to the head and damage to the cortical motor system of the brain. Dr. Fresh finally stated that further recovery by Terry Dale would be minimal.

Dr. W.P. Culbertson, possessed of a PhD in economics, qualified as an expert in projected future earnings and testified that Terry Dale’s expected loss of income would be $563,537.00. Dr. Culbertson considered such factors as unemployment, inflation, Louisiana’s average income, work life expectancy, and conservative investments. In awarding Terry Dale Cupit $300,000.00 in general damages the jury apparently did not give great weight to the projections of Dr. Culbertson.

Considering the extent of the injuries and the sum awarded for general damages, we find that the jury’s decision is within the much discretion of the trier of fact. This award will not be disturbed on appeal by this court. Reck v. Stevens, 373 So.2d 498 (La.1979).

(2) Wrongful Death Awards

The jury also awarded minors Daniel Cu-pit, Jr., Terry Dale Cupit and Sherry Gayle Cupit $15,000.00 each for the wrongful death of their mother, Charlotte Ann Buckles Youngblood. Plaintiff also contends this sum is inadequate.

J.O.. Buckles, Charlotte Ann’s father, testified that Daniel, Jr., Terry Dale and Sherry Gayle had a good relationship with their mother. Daniel Cupit, Sr., first husband of Charlotte Ann and father of the minor plaintiffs, testified that he did not contest Charlotte Ann’s custody of the children because she was “a real good mother to them.” Daniel, Sr., further testified that Charlotte Ann took the children to church on a regular basis.

Daniel, Jr., was eleven years of age and Terry Dale and Sherry Gayle (twins) were nine years of age at the time of their mother’s death. They had an undisputably close relationship with their mother and undoubtedly have and will continue to suffer over their loss.

Upon review of the record regarding the children’s relationship with their mother we conclude that the jury abused its discretion in awarding Daniel Cupit, Jr., Sherry Gayle and Terry Dale Cupit $15,000.00 each for the death of Charlotte Ann Buckles Youngblood. Reck v. Stevens, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). We believe their award should range from $30,000.00 to $40,000.00. Accordingly, we shall increase the wrongful death award of each of the children to $30,000.00, the lowest point which is within the discretion afforded the jury. Reck v. Stevens, supra; Coco v. Winston Industries, Inc., supra.

For the reasons assigned the judgment of the trial court which awarded Daniel Cupit, Sr., on behalf of the minor children, Daniel Cupit, Jr., Sherry Gayle and Terry Dale Cupit, and against Louis Neal Grant, the sum of $15,000.00 for each child is hereby amended by increasing the sum to $30,-000.00 for each child. In all other respects the judgment against Louis Neal Grant is affirmed.

The judgment of the trial court, which dismissed the suit against Louisiana Delta Plantation, Morrison Grain Company, Inc., Morrison-Quirk Corporation and Aetna Casualty & Surety Company, is reversed and set aside. The suit is remanded for a new trial as between plaintiff and these defendants in accordance with the views expressed herein and according to law. The costs of this appeal are to be assessed one-half to Grant-appellee and one-half to the remaining defendants-appellees.

AMENDED AND AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      . The jury trial continued and a verdict was rendered in favor of plaintiff against Louis Grant as follows:
      General Damages for Terry Cupit $300,000.00
      To Each Child for Loss of Mother 15,000.00
      Medical Expenses 5,724.06
      Grant has filed no appeal and judgment against him has now become final.

      . LSA-C.C.P. art. 1735 provides:
      “The trial of all issues for which jury trial has been requested shall be by jury, unless the parties stipulate that the jury trial shall be as to certain issues only or unless the right to trial by jury as to certain issues does not exist; however, except as otherwise provided under the provisions of Article 466, there shall be but one trial.”

      . Faulk v. Schlumberger, etc., 412 So.2d 162 (La.App. 3rd Cir.1982); LeJeune v. Allstate Ins. Co., 373 So.2d 212 (La.App. 3rd Cir.1979).


author: DOUCET, Judge.

text:
    CELLES ENTERPRISES, INC., Plaintiff-Appellant, v. PEOPLES BANK & TRUST CO., Defendant-Appellee.
    No. 82-249.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, Sanders, Downing, Kean & Cazedessus, Michael H. Rubin, Baton Rouge, for defendant-appellant-appel-lee.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., and Daniel T. Murchison, Natchitoches, for plaintiff-appellee-appellant.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   DOUCET, Judge.

Plaintiff, Celles Enterprises, a partnership in commendam, leased a restaurant from Harold McCain and, pursuant to the terms of the lease, agreed to pay the Lessor’s pre-existing loan to Peoples Bank & Trust, defendant herein. Subsequently, McCain filed for bankruptcy and the bank instituted executory proceedings to foreclose on the loan whereupon Celles Enterprises sought, unsuccessfully, to intervene. Thereafter, Cedes Enterprises instituted the present action seeking damages allegedly caused by the bank’s foreclosure. After trial on the merits, the trial judge rendered judgment in favor of plaintiffs, against defendants, awarding damages to the partnership, individual partners and further awarding attorney’s fees. We reverse.

Harold L. McCain, Jr. and his uncle, Frank Winkler, envisioned building a restaurant overlooking Sibley Lake, on Louisiana By-Pass 3110, on the western edge in the City of Natchitoches, to be called “Captain’s Galley”. Pursuant to their plan, McCain and Winkler arranged the financing with The Peoples Bank & Trust Company of Natchitoches, defendant herein. The loan was secured by two collateral mortgages and a collateral chattel mortgage on the restaurant land and equipment. McCain subsequently bought out Winkler and became the sole obligor to the Bank. McCain executed three handnotes to the Bank secured by the aforementioned collateral.

In November 1980 McCain leased the restaurant business to Celles Enterprises, Inc. —1980, A Limited Partnership, a Louisiana partnership in commendam composed of George L. Celles, III as a general partner and limited partners Edward K. Ahrens, Jr., Albin Johnson, George E. Celles, IV, Fred S. Gahagan, and Robert N. Smith. Included in the lease was an option to buy conditioned upon lessee’s assumption of the balance due on various mortgages.

Under the terms of the lease between McCain and the Celles group, 10% of the monthly net sales or $7,000.00, whichever was less, was to be paid “directly to any banks or lending institution which currently hold mortgage indebtedness over the property” leased.

Pursuant to the said terms of the lease, the Celles partnership paid ten (10%) percent of the sales in November to The Peoples Bank & Trust Company, and ten (10%) percent of the sales in December likewise to The Peoples Bank & Trust Company. The McCain notes were in arrears at the time or shortly after the lease was entered into. Accordingly, the Celles group, after negotiations with the bank, paid approximately $17,000.00 to bring the notes current in interest only (but not in principal) in February 1981. In connection therewith, Bea Monk, Office Manager and Comptroller for Celles Enterprises, requested an amortization table to which she received a letter from Gary DeBlieux, on behalf of the bank, stating the monthly installments on each of three notes, the rate of interest and its effective duration. The letter, addressed to George Celles, read as follows:

“Dear George:
Bea had requested an amortization schedule for the notes of McCain-Winkler on Captain’s Galley. I am unable to give you this information because they are not on a fixed interest rate. We approved this loan as a ‘Renegotiated Mortgage’ with the rate to be set every five years. However, I am able to give you the following information concerning these notes:
Note No. BR #27795 Balance $27,332.48 Rate: 14% Due 3-15-81 Pmt. $434.76
Note No. BR #26184 Balance $29,780.03 Rate: 12% Due 3-15-81 Pmt. $485.77
Note No. BR #27794 Balance $338,020.87 Rate 9.5% Due 3-15-81 Pmt. $3,000.00
George, these monthly payments include interest. The rate will be reviewed in January, 1984. Until that date the rate is fixed as shown above.
If you have any questions concerning this matter, or if I can be of further assistance to you, please do not hesitate to let me know.
With kindest personal regards, I remain
Sincerely, s/ Gary S. DeBlieux”

Thereafter, The Peoples Bank sent notices, at the request of Harold McCain, on the McCain-Winkler notes to Celles Enterprises for payment due March 15, 1981, which noted the fact that a slight mistake had been made in computing the interest on February 11, 1981, and that there was another $39.71 due to bring everything up to date. The Celles’ partnership paid accordingly.

In late March or April of 1981, Ken McCoy, McCain’s attorney, advised the Bank that McCain was insolvent and was planning to file a petition for bankruptcy. Upon learning of McCain’s insolvency in April, the Bank immediately called a meeting with the Celles group to advise them of its intention to foreclose on the McCain property unless satisfactory arrangements could be made, to-wit: They would have to take up the approximate $400,000.00 owing The Peoples Bank. The bank offered to lend them the money, provided they all signed a note personally and in solido. The Celles group refused the finance offer.

On April 3, 1981 The Peoples Bank instituted three separate executory proceedings against Harold L. McCain, Jr. One execu-tory action was to foreclose on a $340,000.00 collateral mortgage affecting two tracts in Natchitoches Parish. Another sought foreclosure on a $50,000.00 collateral chattel mortgage affecting a number of items used in connection with a restaurant business. The third sought foreclosure on a $500,-000.00 collateral mortgage dated April 16, 1979 affecting the same property as in the second executory action.

The Celles group sought to enjoin the three foreclosure actions, to which The Peoples Bank responded with an Exception of No Right or Cause or Action based upon the fact that the debts were not owed by the Celles group and they had no standing in Court. The Trial Court, on April 27, 1981, sustained the Exceptions of No Right and No Cause of Action on the basis that the intervenors could not interfere in the execu-tory proceeding between the creditor and the debtor, since their lease was subordinate to the mortgage. Between the date of the rendition of judgment on April 27th and the signing of judgment on April 29th, the intervenors, Celles Enterprises, obtained an ex parte “voluntary dismissal without prejudice as of non-suit with full reservation of rights.” Prom this judgment, no appeal was taken.

The restaurant was closed on April 27, 1981. On May 4, 1981, McCain’s petition in bankruptcy was filed, thereby staying any actions against him.

Subsequently, on May 13, 1981, this suit was brought on behalf of Celles Enterprises, Inc. — 1980, A Limited Partnership, a Louisiana partnership in eommendam, and all of the members thereof, to-wit: Celles Enterprises, Inc., George L. Celles, IV, Edward K. Ahrens, Jr., Albin S. Johnson, Fred S. Gahagan, and Robert N. Smith, and George L. Celles, III, individually, against The Peoples Bank & Trust Company for damages allegedly suffered by the plaintiffs as the result of alleged contractual and delictual wrongs by the defendant bank. The plaintiffs alleged, inter alia, that there was a binding contract between The Peoples Bank & Trust Company and the plaintiffs to the effect the bank would not foreclose if McCain’s notes were paid, that the bank breached the contract, and that the breach of contract resulted in damages to the plaintiffs.

After trial on the merits, the trial court rendered judgment against The Peoples Bank. Damages were awarded to the limited partnership, to each of the limited partners, and for $15,000.00 “for attorney’s fees, said amount to be divided equally among each of the plaintiffs without regard to the differing amounts of the judgments awarded”.

From that judgment, The Peoples Bank filed a petition for a suspensive appeal and the Celles group answered and also filed a devolutive appeal. Numerous specifications of error were alleged by both parties. Our resolution of one issue disposes of all.

Parol evidence is not admissible to prove “any promise to pay the debt of a third person.” LSA-Civ Code Art 2278(3). Seashell, Inc. v. Simon, 398 So.2d 99 (La.App. 3rd Cir.1981); Levy & Dieter v. DuBois, Lowe & Foley, 24 La.Ann. 398 (1872). There is no written promise between the parties to this appeal whereby Celles agrees to pay to Peoples Bank & Trust the debt of McCain. The only written agreement is the lease between McCain and Celles. Similarly, there is no written agreement between Celles and the Bank whereby the obligee would forbear collection of the debt. The letter from defendant to plaintiff did not contain any absolute expression of defendant’s intention to allow assumption of the loan or intention to forbear. The February 1981 letter merely states the factual history of the loan and payment dates. Nevertheless, plaintiff contends a novation occurred as the result of such writing. However, novation is never presumed and the intention to make it must clearly result from the terms of the agreement. LSA-Civ Code Art 2190. Furthermore, the intention of the creditor to novate must be clearly indicated before the original debtor can be discharged. LSA-Civ Code Art 2192. The mere indication made by McCain of a person who was to pay in his place did not operate a novation. LSA-Civ Code Art 2194. Clearly the consent of the creditor is lacking. Just as the promise to pay the debt of a third party is required to be in writing, so is a contract to forbear, relative thereto, required to be in writing.

Furthermore, the facts do not justify application of the doctrine of equitable estoppel. The loss complained of was brought about by plaintiff’s own neglect in failing to secure a written agreement with the bank.

For the reasons assigned hereinabove, the judgment appealed is reversed at plaintiffs cost.

REVERSED.


text:
    G.C. HUNTER and Vernida Hunter, Plaintiffs-Appellees, v. ROYAL GLOBE INSURANCE COMPANY, David Deville, Jr., Joe D. Davis, et al.
    No. 82-347.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    David A. Sheffield, Alexandria, for garnishee-appellant.
    Rankin, Yeldell, Herring & Katz, Stephen J. Katz, Bastrop, for plaintiffs-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal arises from a garnishment proceeding. G.C. Hunter and Vernida Hunter (Hunters) filed these proceedings against David Deville, Sr. (Deville) as employer of his son, David Deville, Jr. (David). The Hunters were seeking to garnish the wages of David to satisfy a judgment of $50,000.00 arising out of the death of the Hunters’ son, the victim of a homicide in which David was involved.

In a hearing of Hunters’ rule to traverse Deville’s answers to interrogatories the trial court granted the Hunters’ request for garnishment. Deville appeals the trial court’s ruling contending the trial court erred in failing to find that, under LSA-R.S. 13:3925, David’s prior debt to Deville should have been satisfied before the Hunters’ garnishment would become effective. Finding the defendants’ contention without merit, we affirm.

The sole issue of this appeal is whether the medical expenses, attorney’s fees and other expenses, most of which were incurred by David while incarcerated, should be considered as an indebtedness of David to Deville.

FACTS

On September 9, 1976, the Hunters were awarded $50,000.00 in a death action against David. David was incarcerated from June 1977 until March 1980, at which time he was released on parole. While incarcerated, David underwent a back operation at Ochsner Foundation Hospital. Upon release David returned to his family’s home on Deville’s plantation. David’s wife and family had been residing in Deville’s plantation since David’s incarceration. David and his family continued to make this their home on the plantation.

The back operation left David disabled. David’s disability prevents him from bending at the waist, lifting heavy items and performing any strenuous labor.

Realizing his disability would prevent him from securing most employment opportunities David chose to work on Deville’s plantation. David did light work and received $600.00 a month in wages.

While his physical situation is distressing David’s lifestyle is fortunate. David and his, family live in a house provided by the plantation. All utilities and insurance are provided by the plantation. David drives a truck provided by the plantation for both personal and work-related business. David’s wife drives a car provided by David’s mother. Fuel and insurance for both vehicles are also provided by the plantation. David’s children receive a private education provided by David’s mother. David’s fortunate lifestyle is the result of a very warm, close Deville family that is sensitive to David’s special needs.

In answer to the interrogatories propounded by the Hunters, Deville alleged that David was indebted to him in the amount of $6,027.58 and that David was paying this debt at the rate of $50.00 per month. The trial court rendered reasons for judgment in favor of the Hunters.

Counsel for Deville contends that the trial judge erred in granting the judgment. It is contended that the trial court granted the Hunters’ garnishment on the ground that their judgment pre-dated the expenses paid by Deville. Counsel for Deville points out that, under LSA-R.S. 13:3925, the recognition of the employee’s indebtedness to the employer does not depend on the indebtedness pre-dating the judgment.

It is unclear as to the basis for the trial court judgment.

Deville’s counsel bases his contention upon the following brief statement in the reasons for judgment:

“It is my view that it would be unjust to deny recovery to the Hunters in the circumstances at hand considering when they obtained their judgment and when the bulk of these debts were incurred."

On the other hand, it appears that the trial judge concluded that the expenses paid by Deville on behalf of David constituted gratuities and not an indebtedness under LSA-R.S. 13:3925. This portion of the trial judge’s reasons provides as follows:

“It is my view that the expenditure of moneys for auto insurance and medical expenses while David Deville, Jr. was in prison and the expenditure of moneys for taxes for ‘earnings’ that he was taxed for while a prisoner should not be considered expenses that the employer may now charge against current income in preference and priority to the garnishment.”

We are inclined to conclude that the trial court rendered judgment for the reasons immediately above, but it is unnecessary to decide which reasons he used as we agree with the trial court’s ultimate conclusion. We find that the garnishment was properly granted on the ground that the expenses paid by Deville on behalf of his son, David, did not create an indebtedness within the purview of LSA-R.S. 13:3925. We have concluded that Deville’s payments were gratuities and not loans for the reasons set forth below.

LOANS OR GRATUITIES

In reviewing the record we do not find that the evidence supports the existence of an indebtedness between Deville and David. Deville admitted at the hearing that he did not start withholding any money from David’s payroll check until after he was served with the garnishment proceeding. In fact, Patsy Huffman (Deville’s daughter and plantation bookkeeper) testified that Deville did not tell her to start withholding money from David’s check until March 14, 1981.

Patsy admitted that she was told by De-ville in March 1981, to make out the $50.00 deduction checks and to pre-date them to show that the payments began the first part of January 1981. She pre-dated the checks as instructed by Deville to cover the withholding for January and February 1981. Thereafter, the $50.00 was withheld from each bimonthly pay cheek. We must note that the answers to the interrogatories were filed in March 1981.

Deville testified that he didn’t know of any written evidence of the indebtedness such as a note. David did not know of the existence of a note. Patsy, the bookkeeper, also was not able to say that the indebtedness was represented by any writing.

This case is unusual in that the relationship before us is not only employer-employee but also that of father-son. The record does not indicate that the father and son considered the payments to be loans at the time of payments. It was only after the garnishment was filed that the payments were categorized as loans. The deductions, which began when the interrogatories were filed in March 1981, were made retroactive to January 1981. The indebtedness was not reduced to writing in the form of a note. These factors seriously weaken the credibility of the testimony of Deville and David that these were loans instead of gratuities from an affluent father to a son in need.

Under the unusual circumstances of this case, we find that the expenses paid by Deville were gratuities and not loans to David. The trial court correctly granted the Hunters’ request for garnishment.

For these reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to Deville, the appellant.

AFFIRMED.

      . The Hunters contended that in addition to the $600.00 per month salary, David’s income should include the use of a house, car, truck, insurance payments and other items furnished to David by Deville. The trial court refused to include these items as income and no appeal was taken from this ruling by the Hunters.

      . LSA-R.S. 13:3925 provides:
      “If the employer answering such interrogatories should plead that the employee is indebted unto the employer, the employer shall make a full and complete disclosure of the status of such account, showing the time that the debt was incurred, the exact amount of such debt, the credits applicable thereto, the manner in which this debt is being liquidated, and all other facts in connection there with and pertinent thereto, whereupon the court may hear evidence affecting such issue and may render a judgment ordering the payment to the employer of the non-exempt portion of such salary, wage or commission at a specified rate in the same manner as if the employer were a judgment creditor having a prior garnishment. The court likewise shall fix the date upon which the claim should be considered liquidated and the date the garnishment therein sued out shall take effect. It is the intention of this Section that the employer should be treated as one holding a prior garnishment, but limiting the time within which such indebtedness should be considered paid in full in order that other garnishments may attach, the priority of such employer being limited to that time.”

      . The expenses of David paid by Deville were as follows:
      Date Party Purpose Amount
      2-28-78 Pinson-Calhoun Insurance Auto Insurance $ 168.00
      5- 2-78 Pinson-Calhoun Insurance Auto Insurance 149.40
      9-11-79 Ochsner Med. Found. Hospital Medical Bills 757.58
      11-13-79 Ochsner Med. Found. Hospital Medical Bills 327.72
      9-11-79 Brent House (Ochsner) Medical Bills 298.92
      8- 2-79 Gravel, Roy & Bumes Attorney’s Fees 277.55
      10- 3-79 Gravel, Roy & Bumes Attorney’s Fees 1,000.00
      11-21-79 Gravel, Roy & Bumes Attorney’s Fees 1,500.00
      8- 5-80 ' Gravel, Roy & Bumes Attorney’s Fees 125.00
      4-15-80 Internal Revenue Service Taxes 1,382.28
      8-21-80 Internal Revenue Service Taxes 41.13
      $6,027.58


author: FORET, Judge.

text:
    Wilmer PROCELL, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellant.
    No. 82-374.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Lunn, Irion, Switzer, Johnson & Salley, Frank M. Walker, Jr., Shreveport, for defendant-appellant.
    Lowther & Boone, Ted Brett Brunson, Many, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Wilmer Procell (plaintiff) brought this workmen’s compensation action to recover disability benefits, alleging that he is totally and permanently disabled as a result of personal injuries suffered in a work-related accident. Plaintiff also sought to recover medical expenses, not to exceed $12,500, and penalties and attorney’s fees. Named defendant is the Insurance Company of North America.

The trial court, after trial on the merits, rendered judgment in favor of plaintiff for total and permanent disability ordering defendant to pay plaintiff disability benefits of $65.00 per week, beginning March 14, 1975, for the period of his disability, not to exceed 500 weeks, less a credit for 253 weeks of disability benefits received by plaintiff at the rate of $65.00 per week. The trial court further rendered judgment ordering defendant to pay any medical bills incurred by plaintiff for the treatment of his injuries, not to exceed $12,500.

Defendant appeals from the trial court’s judgment and raises the following issue:

Whether the trial court committed manifest error in finding plaintiff to be totally and permanently disabled after January 25, 1980.

Plaintiff has answered the appeal, complaining of the trial court’s failure to award plaintiff the statutory penalties and attorney’s fees for defendant’s alleged arbitrary, capricious, and unreasonable actions in terminating payment of disability benefits to him.

FACTS

The parties stipulated that plaintiff was employed by SCA Services, Inc., on March 14,1975, when he received personal injuries in a work-related accident. It was further stipulated that defendant did provide workmen’s compensation insurance coverage for SCA Services, Inc. on that date, and that it paid the appropriate disability benefits to plaintiff of $65.00 per week from the date of the accident to January 25, 1980.

PLAINTIFF’S ALLEGED DISABILITY

Defendant contends that the trial court committed manifest error in finding plaintiff to be totally and permanently disabled after January 25, 1980. It argues that the evidence clearly indicates that plaintiff is gainfully employed, and that the nature of plaintiff’s present employment duties is similar to that of those he was performing at the time he was injured.

The evidence shows that defendant voluntarily paid disability benefits to plaintiff for total and permanent disability from March 14, 1975, until January 25,1980. On the latter date, defendant terminated payment of those benefits upon learning that plaintiff was once again employed. Defendant argues that plaintiff was no longer disabled as of that date.

Both parties appear to agree that the issue of whether plaintiff is totally and permanently disabled should be decided in light of the statutes, and jurisprudence interpreting them, in effect at the time of plaintiff’s injury. As noted above, plaintiff was injured on March 14, 1975. Acts 1975, # 583, § 9 (effective September 1, 1975), constituted a major legislative revision of LSA-R.S. 23:1221, and its definitions of the various types of disability.

As a general rule, laws are deemed to be prospective in effect unless their language clearly indicates otherwise. LSA-C.C. Article 8; LSA-R.S. 1:2; Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4 Cir.1977), writ denied, 354 So.2d 210 (La.1978); Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3 Cir.1974), writ denied, 305 So.2d 134 (La.1974). However, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws, which will be given retroactive effect in the absence of language showing a contrary intention. Lott v. Haley, 370 So.2d 521 (La. 1979); Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953). This jurisprudential rule, itself, is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Lott v. Haley, supra; Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972). Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Lott v. Haley, supra; Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978); Johnson v. Foumet, 387 So.2d 1336 (La.App. 1 Cir.1980).

Plaintiffs claim that he is totally and permanently disabled will be decided under the statutes and jurisprudence in effect at the time of his injury.

Knispel v. Gulf States Utilities Company, 174 La. 401, 141 So. 9 (1932), provided the following interpretation of the Louisiana Workmen’s Compensation Act’s definition of “total” disability that was the accepted standard for measuring said disability until the revision of LSA-R.S. 23:1221, in 1975. See 13 La.Civil Law Treatise: Workers’ Compensation, § 273, pg. 603 (Malone and Johnson, 2nd Ed.).

Knispel stated on page 12 that:

“The disability should, we think, be deemed total to do work of any reasonable character, within the intendment of the law, whenever it appears that the employee, due to the injury, is unable to perform work of the same or similar description that he is accustomed to perform. When he is unable to perform such character of work, his occupation, due to the injury received in his employer’s service, has been taken from him, and he is in the world without an occupation. In his position he is wholly incapacitated, and what little he may learn or be able to do thereafter will likely be done under greater difficulties, placing him at a disadvantage even in securing what work he may be able to perform.”

The evidence shows that plaintiff is an unskilled or manual laborer. Under the jurisprudence in effect at the time of plaintiff’s injury, it was an established rule that a common laborer would be considered as being totally disabled from doing work of any reasonable character within the meaning of the Louisiana Workmen’s Compensation Act if his injuries disabled him from performing work of a kind similar to that which he was accustomed to performing, or if his injury was of such a character that it appeared he would be substantially handicapped in competing with other able-bodied workers in the regular common labor market. Carlisle v. Great American Insurance Company, 291 So.2d 449 (La.App. 2 Cir.1974), writ denied, 292 So.2d 244 (La.1974); Stephney v. Robertson, 219 So.2d 9 (La.App. 4 Cir.1969), writ denied, 222 So.2d 65 (La.1969), and numerous cases cited therein.

As was noted in 13 La.Civil Law Treatise: Workers’ Compensation, § 273, pg. 605 (Malone and Johnson, 2nd Edition):

“The unskilled or manual laborer enjoyed a limited application of the formula. The tasks assigned to the unskilled worker vary from job to job and even one hour to the next. Hence it was thought to be unfair to conclude that the manual worker was totally disabled if he could not perform the precise operation in which he was engaged at the time of the accident or if he could not do every act that an employer of manual labor could conceivably order him to do. Accordingly, it was generally held that the unskilled laborer was not totally disabled so long as he could do work of reasonably the same character as that performed prior to his injury.44 He would be regarded as totally disabled only when he could not substantially compete for regular employment with able-bodied workers in the flexible market for common labor.” (Emphasis ours.)

The formula referred to in the above quoted passage was that set forth in Knis-pel for determining whether a worker was totally disabled.

Plaintiff herein testified that his first employment consisted of: “Odd end jobs like roofing or something like that”. He was then employed by the City of Shreveport as a garbage collector for some nine or ten years. While so employed, his main duty was to ride on trucks and collect garbage along certain routes. He then went to work for SCA Services, Inc., where his duties consisted of driving a truck, pushing containers of garbage to the rear of the truck to be mechanically lifted and emptied into it, and picking up 50-gallon drums of garbage. Plaintiff suffered an injury to his back while pushing a container of garbage to the rear of a truck, and he was hospitalized.

William S. Bundrick, M.D., an orthopedic surgeon, treated plaintiff for his back injury in consultation with Dr. E.B. Pittman. He testified by deposition at the trial of this matter. Dr. Bundrick saw plaintiff a total of five times, while he was hospitalized. He stated that plaintiff gradually improved and he was discharged from the hospital on March 22, 1975, a week post-accident. Plaintiff continued to experience back pain, and Dr. Pittman readmitted him to the hospital on April 14, 1975. At that time, a lumbar myelogram was performed on plaintiff. This test and another confirmed that plaintiff had a defect consistent with a finding of a herniated disc at the L4-5 interspace on the right. Dr. Bundrick estimated that plaintiff had a 15% partial permanent disability to the body as a whole at this time.

Plaintiff went to work for T.J. Ivy, Jr., on August 16, 1979, driving a truck used in Ivy’s logging operations. He was earning $45 per day at the time, but was earning $50 per day at the time of trial. Prior to that, he had worked for one Junior Mitchell for three months in early 1979, driving a logging truck. Ivy testified that plaintiff’s primary employment duty is to drive the logging truck. The logging truck has four metal stakes that fit into short pieces of pipe on it, and these hold the load as plaintiff drives to various wood processing facilities. At some mills, plaintiff is required to perform a task known as “tripping the stakes”.

To secure a load in place, plaintiff uses two binders, each of which is attached to a stake and a chain. The chains are then attached to opposing stakes on the other side of the truck. The binders are used to place tension on the chains so that the load is held in place. In tripping the stakes, a large machine is driven to the side of the truck and holds the load in place. Plaintiff then attaches a ten-foot length of chain to the binders and, by pulling on the chain, he relases them, allowing two of the stakes to fall to the ground. He then moves the stakes out of the way, and the unloading machine goes around to the other side of the truck to push the logs off onto the ground. Plaintiff then has to lift these stakes approximately four or five feet and replace them on the truck. Ivy testified that each stake weighs about 50 to 60 pounds and consists of a four-inch steel pipe that is about 6 feet long. Plaintiff receives help at some mills in replacing the stakes, but at others he must do this by himself. This is the heaviest physical labor that plaintiff performs in his current employment.

Plaintiff testified that he is constantly experiencing pain in his back, although it varies in intensity. He stated that he takes Excedrin to relieve his back pain, when it really bothers him. On days that he does require this analgesic to relieve his pain, he never takes it more than twice a day. Plaintiff was involved in a head-on collision with a hearse on January 16, 1981, while driving the logging truck. This caused him to lose control of the vehicle, which turned over and ejected him from the cab. However, plaintiff stated that the only injury he suffered in the accident was to one of his shoulders. He did not aggravate his back injury.

Plaintiff again saw Dr. Bundrick on February 2, 1981. Dr. Bundrick testified that plaintiff was complaining of occasional low back pain, and that he made no mention of the collision he had been involved in a month earlier. Dr. Bundriek’s examination revealed no evidence of nerve root irritation, nor spasm in the muscles of plaintiff’s back. His neurological examination was completely normal. He concluded that plaintiff had either not suffered a herniated disc as a result of his back injury or that it had healed over. He saw no reason to conduct any further tests.

Dr. Bundrick felt that plaintiff could lift objects weighing between 30 to 40 pounds, if he did so properly. However, he would not recommend that plaintiff lift anything weighing in the range of 75 to 100 pounds as this might cause his disc injury to recur. Dr. Bundrick believed that plaintiff’s back condition had changed significantly between his examination in 1977 and 1981. He stated that if plaintiff had not sought medical attention for his back pain during this time period, then he was not suffering from any significant pain. Plaintiff admitted he had not sought medical attention for back pain during this time period. Based on his examination in 1981, Dr. Bundrick opined that plaintiff had no significant disability. He felt that it was possible that plaintiff could lift objects weighing as much as 75 pounds without. experiencing any back pain, or only occasional stiffness when he returned home from work.

Ivy testified that plaintiff does complain of back pain. • He did not know if plaintiff ever missed work because of this pain. He stated that plaintiff doesn’t miss work any more than any other employee. Plaintiff works anywhere from six to twelve hours a day, depending on weather conditions, machinery breakdowns, etc. Randall Broadway, one of Ivy’s former employees that worked with plaintiff, testified that plaintiff complained of back pain every now and then, and that sometimes he would complain that the pain was severe. Dean Ox-ley, another of Ivy’s former employees that worked with plaintiff, testified that plaintiff complained of back pain every once in a while. Plaintiff told him that his back hurt most of the time. Barbara Procell, plaintiff’s wife, testified that plaintiff experienced moderate to severe pain in his back and legs at times. However, the pain was relieved by aspirin or Tylenol. She stated that plaintiff’s wreck did not seem to have any effect on his back problems.

It is our opinion that the evidence shows that on January 25, 1980, plaintiff was able to perform work of a kind similar to that which he was accustomed to performing, and that his injury is not of such a nature that he is substantially handicapped in competing with other able-bodied workers in the regular common labor market. Plaintiff’s condition was essentially the same at the time of trial. Thus, the trial court’s finding, that plaintiff is totally disabled, is clearly wrong.

It is also our opinion that under LSA-R.S. 23:1221(3), in effect at the time of plaintiff’s injury, and the jurisprudence interpreting that statute, plaintiff is unable to recover benefits for permanent partial disability. This jurisprudence held, in substance, that benefits were payable under LSA-R.S. 23:1221(3) only when the injured employee had sustained partial permanent disability that was functional in nature and resulted in impairment or reduction of his earning capacity. In most of the cases where such an award was made, it appears the claimant had returned to work of a similar nature but because of residual functional disability, his earning capacity was impaired or reduced. White v. United States Fidelity & Guaranty Company, 158 So.2d 210 (La.App. 3 Cir.1963); Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3 Cir.1969).

In the present case, the evidence shows that there was no disability which impaired or reduced the earning capacity of plaintiff on January 25, 1980. In fact, plaintiff was earning more at that time than when he was injured, and was still doing so at the time of trial. Plaintiff certainly failed to prove any impairment or reduction in his earning capacity.

ANSWER TO APPEAL

Plaintiff answered this appeal and raises the issue of whether the trial court committed manifest error in denying his demands for penalties and attorney’s fees. Because of our decision herein, this issue is moot,

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed. Judgment is hereby rendered in favor of defendant and against plaintiff, dismissing plaintiff’s action with prejudice.

All costs of this appeal, and in the trial court, are assessed against plaintiff-appel-lee.

REVERSED AND RENDERED.

      . With regard to this portion of the trial court’s judgment, we note that there is no evidence whatsoever to indicate that defendant has failed to pay any of the medical expenses incurred by plaintiff for the treatment of his injuries.

      . Under the provisions of LSA-R.S. 23:1331, defendant would have had the right to seek judicial modification of any previous judgment rendered against it, ordering it to pay disability benefits to plaintiff, based on the grounds that plaintiffs disability or incapacity had subsequently diminished. In the interest of judicial economy and efficiency, we will treat this action as one to modify a previous award of compensation, as well as an action for compensation. The evidence in the record is pertinent to both types of action, and the record is complete. Our determination will be based on plaintiffs medical condition as of January 25, 1980.


author: YELVERTON, Judge.

text:
    The RAMOS GROUP, INC., Plaintiff-Appellant, v. Dr. Joseph VILLARD, Defendant-Appellee.
    No. 82-377.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.

      Davis and Murchison, H. Dillon Murchison, Alexandria, for plaintiff-appellant.
    Dan E. Melichar, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

The Ramos Group, Inc. filed suit in the proper Louisiana court seeking to have a money judgment of the Sixteenth Judicial District Court of the State of Missouri made executory in this State. The suit was filed against Dr. Joseph Villard as judgment debtor. The Missouri judgment, dated May 21, 1981, was for the amount of $67,350.04. A duly authenticated copy of the judgment sought to be made executory was annexed to the petition in compliance with La.C.C.P. Art. 2541.

Villard answered in proper person denying that he had ever been in Missouri and denying that he had ever heard of The Ramos Group, Inc. By supplemental answer filed by his attorney, he added the further defense that the Missouri judgment was not entitled to full faith and credit because the rendering court did not have jurisdiction.

The trial court, exercising its right to make an independent determination of the jurisdiction of the Missouri court which had thus been put at issue, after trial concluded that Missouri did not have jurisdiction to render the judgment. The court’s reasons were that although subject matter jurisdiction existed, personal jurisdiction did not because of insufficient contacts and also because there was no service of the initial suit.

After judgment was signed rejecting the demands of the Missouri corporation, plaintiff applied for a new trial alleging that it had not received in time for the trial pertinent evidence which it had requested from the Missouri court, including (1) the original return receipt for service of the petition on Joseph Villard, (2) copy of the cover letter sent to Villard accompanying the petition, and (3) a copy of the certificate of mailing signed by the treasurer of The Ramos Group. The motion for a new trial was denied. This appeal followed.

We find it necessary to reverse the district court and render judgment in favor of plaintiff. We do so because we find that the trial court made an error of law in its determination of the burden of proof, and because of that it was clearly wrong in its evaluation of the evidence.

In its reasons for judgment, the trial court declared that “under the circumstances in this case, the defendant is entitled to the benefit of any reasonable doubt.” This, in our opinion, was tantamount to requiring that the plaintiff prove Missouri jurisdiction beyond any reasonable doubt. The exact opposite is the law. The favorable presumption in this type of case lies not with the defendant but with the plaintiff, and to overcome the presumption of jurisdiction that favors the foreign decree, the defendant attacking jurisdiction must prove its absence by clear and positive proof. As was stated by the court in Holden v. Holden, 374 So.2d 749 (La.App. 3rd Cir.1979):

Although the jurisdiction of a court rendering a judgment is open to judicial inquiry when enforcement of that judgment is sought within this State, there is a general presumption that the decree is valid and the burden of undermining such a judgment rests heavily upon the assailant. Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946); Berry v. Berry, 307 So.2d 821 (La.App. 3 Cir.1975). The burden to establish that the court of the rendering state was without jurisdiction can only be discharged by clear and positive proof. Turpin v. Turpin, 175 So.2d 357 (La.App. 2 Cir.1965).

Under the proper burden of proof test, we find that the plaintiff proved its case and that the defendant failed to prove that the Missouri court was without jurisdiction, for the reasons which we will now explain.

THE MISSOURI PROCEEDINGS

The Missouri suit was filed against two individuals, the defendant Dr. Villard and Clifford Eldridge, both residents of Alexandria, Louisiana. A copy of the Missouri pleadings was admitted in evidence in the Louisiana court. These pleadings indicate that The Ramos Group, Inc., is an architectural corporation located in Kansas City, Missouri. The suit alleged that Dr. Villard and Clifford Eldridge were partners doing business variously as Villard-Eldridge Developers, Villard-Eldridge Fountainhead Partnership, Villard-Eldridge and Associates, and simply, Villard-Eldridge. The suit further alleged that Villard and Eldridge entered into contracts with The Ramos Group for architectural services relating to a number of real estate development projects across the State of Louisiana. Attached to the petition and made a part thereof were written and signed contracts on a form supplied by the American Institute of Architecture, numerous invoices and other documents. The address of the Villard-Eldridge partnerships shown on the contracts and most of the other exhibits attached to the Missouri petition was 3916 Parliament Drive, Alexandria, Louisiana, which is the same address as Dr. Villard’s medical practice in that city. The suit was for a money judgment based on contract services rendered that were unpaid.

The Missouri judgment indicates that a settlement had been made between the plaintiff and Clifford Eldridge. The judgment was-only against Dr. Joseph Villard.

THE LOUISIANA PROCEEDINGS

Only two witnesses testified at the brief trial. They were Dr. Villard and his former secretary, Martha Smith Cebrynski.

Dr. Villard denied ever having received any notice of the suit or notice of entry of a default judgment. He denied ever having anything to do with The Ramos Group, Inc. He denied having ever received any architectural services from them. He admitted that he knew a Cliff Eldridge, but denied ever having any business dealings with him. He denied ever signing a contract with The Ramos Group, Inc., and when shown a purported copy of a contract bearing his signature, denied that that was his signature. When confronted with several purported financial statements of his dated in 1978, he denied the signatures thereon and declared that they were forgeries of his name. He denied knowing anything about the Villard-Eldridge Fountainhead Partnership; he was shown a contract involving that partnership and a signature that purported to be his, and he denied that it was his. He could not explain why Villard-Eldridge Developers had the same business address as his in Alexandria. Shown a letter typed under the letterhead “Villard-Eldridge and Associates, 3916 Parliament Drive, Alexandria, Louisiana”, he denied ever having seen such a letterhead.

A return receipt for the notice of entry of default sent from Missouri was put in evidence. It showed that it was delivered on August 9,1979 to Dr. Villard at his office in Alexandria and it was signed by one Martha Smith. Not only did Dr. Villard deny ever receiving this notice; he also emphatically and repeatedly denied that a Martha Smith had ever worked for him or that he had ever heard of the name, saying “I have no earthly idea who Martha Smith is”.

At this point in the trial the court granted a recess and Martha Smith was produced. She testified that she worked in Dr. Villard’s office as his secretary-receptionist from March, 1978 until May, 1981. Her name was Martha Smith until May 10,1980, when she married and became Martha Ce-brynski. She testified that she worked every day for three years arid that she was known by the doctor as Martha Smith. She identified her signature on the return receipt and stated that it was her practice to put this type of mail on the shelf of the half door that led into his office. She also declared that she was acquainted with Clifford Eldridge and that he worked with Dr. Villard in the section of the doctor’s office reserved for the latter’s real estate business. She also said that she had heard of The- Ramos Group and knew it to be an architect firm or something like that. She had received telephone calls from The Ramos Group to both Dr. Villard and Eldridge. She declared that Eldridge and Dr. Villard were working together on real estate developments in 1978 and 1979. Finally, she recognized letterhead stationery of Villard-Eldridge and Associates, stating that she had seen it around the office.

After this, Dr. Villard in brief further testimony admitted that he recognized the lady, that she had worked for him, and that he knew her as Martha. He stated he never knew her last name.' He was not asked any questions concerning her further testimony.

The trial court obviously did not believe that most of Dr. Villard’s denials were truthful. In its reasons for judgment the district court said:

“The evidence indicated that defendant, Dr. Joseph Villard, did have substantial dealings with plaintiff sufficient to give rise to a lawsuit. However, all of these dealings involved Louisiana building projects, and it appears that practically all of the negotiations and relationships between the plaintiff and defendant occurred in the State of Louisiana. Dr. Villard did sign one contract that would have apparently given the State of Missouri jurisdiction over the subject matter with respect to any suit arising out of that particular contract, and the evidence did establish to the Court’s satisfaction that Dr. Villard did receive at his office a certified letter in which was apparently enclosed a notice of entry of the default judgment. Other than this (and a statement contained in an affidavit by a Missouri attorney that he confirmed by telephone conversation with Dr. Villard the receipt of the aforementioned notice of default), there is no other indication that Dr. Villard was notified of or had any knowledge of the suit being filed in Missouri.”

Our review of the case in light of the trial court’s findings of fact and the above circumstances cause us to sum it up as follows: When plaintiff filed its suit in the Louisiana court and submitted an exemplified copy of the Missouri judgment, and rested, it had presented a case entitling it to judgment under full faith and credit principles. Thereafter, the only issue of the foreign proceeding with which the district court could properly concern itself was the question of the Missouri court’s jurisdiction over the parties or the subject matter involved within that action. Holden v. Holden, supra. The burden of proving that the Missouri court lacked jurisdiction was on Dr. Villard, and he was required to discharge that burden by clear and positive proof. In view of the serious questions of Dr. Villard’s credibility, obviously noted by the trial court and readily apparent in this record, we find that Dr. Villard’s mere denial of receiving notice of the original suit is not the clear and positive proof required of him in the circumstances. We also find no factual basis in the record for the court to have concluded that insufficient “minimum contacts” were established for Missouri to exercise jurisdiction. Since the defendant absolutely denied any knowledge of or connection with The Ramos Group, the question of whether or not the minimum contacts standard was sufficiently met for Missouri jurisdiction was not even an issue in the case, and no evidence was adduced touching on it. Therefore, the defendant failed to prove that the Missouri court lacked jurisdiction.

For these reasons we reverse the district court and render judgment in favor of plaintiff, The Ramos Group, Inc., and against defendant, Joseph Villard, recognizing the judgment of the circuit court of Jackson County, Missouri, Sixteenth Judicial District, in favor of The Ramos Group, Inc., and against Dr. Joseph Villard, dated May 21, 1981, in the amount of $67,350.04, and ordering that the said judgment be made the judgment of the Ninth Judicial District Court for the State of Louisiana and executory therein.

We note that the Missouri judgment does not provide for interest.

The judgment will bear interest at the legal rate from judicial demand in the Louisiana court until paid.

Defendant will pay all costs in the district court and on appeal.

REVERSED AND RENDERED.

      . The contracts contained a “Consent to Service” clause reading:
      “Owner consents that any action to enforce this agreement may be maintained in any court in Jackson County, Kansas City, Missouri, having jurisdiction over the amount in controversy. Owner hereby appoints any officer of Architect as agent for the purpose of accepting service of any process within the State of Missouri, subject only to the condition that the said officer promptly mail a copy of any such process, by registered mail, return receipt requested, to Owner at the address first above set forth.”