text:
    PPG INDUSTRIES, INC., Plaintiff-Appellant, v. BEAN DREDGING CORPORATION, et al., Defendant-Appellee.
    No. 82-136.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    Writ Granted Nov. 5, 1982.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert,. Jr. and Robert S. Dampf, Lake Charles, for plaintiff-appellant.
    Deutsch, Kerrigan & Stiles, Allen F. Campbell and Cornelieus G. Van Dalen, New Orleans, for defendant-appellee.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Judge Joseph A. LaHaye, 27th Judicial District Court, Parish of St. Landry, presided as Judge Ad Hoc in this decision.

   DOUCET, Judge.

Plaintiff, PPG Industries, Inc., brought this lawsuit against Bean Dredging Corporation and C. F. Bean Corporation, seeking to recover damages allegedly resulting from defendants’ negligence during the operation of a dredging project in the Calcasieu Ship Channel. The accident occurred when a dredge owned and operated by Bean struck and ruptured a 12 inch natural gas pipeline owned by Texaco, Inc. The pipeline was delivering natural gas to PPG at its industrial plant site in the immediate vicinity of the rupture. As a result of the accident, which occurred on April 5,1980, natural gas delivery was interrupted and PPG was forced to purchase gas from secondary sources at a substantially increased cost, thereby suffering considerable economic loss. Furthermore, PPG suffered additional monetary losses due to decreased efficiency of operation.

Bean filed an Exception of No Cause of Action and No Right of Action to PPG’s petition. On November 30, 1981 when the matter came before the trial judge, he sustained said exceptions. From that judgment, PPG appeals.

The sole issue on appeal is whether PPG’s petition gives rise to legally protected interest and states cause of action. The issue, as posed by appellee, is whether the law as expressed in Robin’s Dry Dock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290, 1927, and Louisiana’s adoption thereof, Forcum-James Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (La.1957); should be overruled.

The aforementioned cases stand for the proposition that there can be no recovery for the indirect damages resulting from negligent interference with contractual obligations or business expectations. The losses claimed by PPG in this matter arise from the alleged negligence of the dredge, Bean No. 32, in rupturing the natural gas pipeline owned by Texaco. The damage prevented Texaco from fulfilling its contractual obligations to PPG in delivering natural gas to the PPG plant in Lake Charles.

Robin’s Dry Dock, supra, is on point. Hence, the question becomes, is it time to re-examine the doctrine announced therein, and if so, which court should examine the wisdom of that decision.

Defendant’s position, representing the orthodox view, is the general recognition of non-liability for negligent interference in existing contracts or with prospective contractual relations. The rule relieves an unwary tortfeasor from potentially ruinous liability for indirect economic losses. As was noted in James, Limitations on Liability for Economic Loss Caused by Negligence: A Pragmatic Appraisal, 25 Vand.L. Rev. 43 (1972), under the rule, “The insurer of A’s life has no action against one who negligently causes A’s premature death; the employer has no action for sums that he has had to pay because defendant has negligently injured his employee; a ship’s time charterer has no action for loss of the ship’s use while it is laid up for repairs necessitated by defendant’s negligence; and a workman has no action for loss of wages during a layoff resulting from damage negligently caused to his employer’s plant.”

In each of the aforementioned examples of the doctrine’s application the loss is indirect and economic. Furthermore, serious problems face insurers in handling insurance against potentially wide, open-ended liability. On the other hand, plaintiff could have contracted for Texaco to indemnify appellant for economic loss occasioned by third party negligence, but apparently failed to do so. The rule provides a simple, clear and predictable rule for the commercial world to follow, make its plans and insure accordingly.

Appellant’s position, although representing the minority view in this country, is equally persuasive. PPG has undisputably suffered damage, through no fault of their own, as a result of defendants’ negligence and they submit that the rule of Robin’s Dry Dock is extremely archaic, arbitrary, and unfair and should not be maintained in our modern society. In support thereof, PPG contends that difficulty in proof of causation in damages and the possibility of fraudulent claims is not a valid reason to refuse recognition of an otherwise valid cause of action, nor is limiting defendants’ commercial liability of itself valid grounds for denying plaintiff its day in court. Instead, liability should be a function of foreseeability and nature of loss. Such a rule would lessen the burden of placing such losses upon innocent plaintiffs and shift the responsibility to insure to the negligent defendant. Comment, 88 Harv.L.Rev. 444 (1974).

Preliminarily we address the question of whether the Robin’s Dry Dock doctrine has acquired the status of jurisprudence constante. We believe it has. Our research has revealed no substantial deviation from the doctrine, under the circumstances presented herein, since its Louisiana adoption in 1957. Courts of Appeal are bound to follow decisions of the Supreme Court. United States Fidelity and Guaranty Co. v. Green, 252 La. 227, 210 So.2d 328 (La.1968), overruled on other grounds, Creech v. Capitol Mack, Inc., 287 So.2d 497 (La.1974). When jurisprudence has consistently established a uniform interpretation, we are obliged to follow that rule absent mandate to the contrary. Garrett v. Pioneer Production Corp., 390 So.2d 851 (La.1980).

We are constrained to follow this rule of loss distribution. Accordingly the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

       We note that Texaco was not joined in these proceedings.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    JOE BONURA, INC. v. Livingston S. HIERN, and Housemaster Corporation.
    No. 13108.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Rehearing Denied Sept. 24, 1982.

      Carl J. Schumacher, Jr., C. David Schu-macher, Schumacher Law Corp., Ltd., Richard K. Simoneaux, Simoneaux & Simo-neaux, New Orleans, for plaintiff-appellant.
    Law Offices of Guy W. Olano, Jr., A Professional Law Corp., Frank P. Tranchi-na, Jr., Alfred J. Ferry, Kenner, for defendants-appellees.
    Before GULOTTA, AUGUSTINE, and CIACCIO, JJ.
   CIACCIO, Judge.

The plaintiff, a general contractor, filed suit pursuant to an oral construction contract, to recover monies allegedly due for the repair and renovation of the defendant’s apartment units. The suit also sought recognition of a contractor’s privilege and lien against the property. Following a trial on the merits, the trial court dismissed the plaintiff’s suit and the plaintiff filed this devolutive appeal.

The facts are as follows:

In early 1979, Joe Bonura met with Livingston Hiem, president of Housemaster Corp., at the residential office of the defendant, to discuss certain construction work to be performed by Joe Bonura, Inc. on properties owned by the Housemaster Corporation. The corporation was engaged in the development and sale of real estate and owned several apartment buildings which were located at 4415, 4435, 4443 and 4445 Wilson Avenue in New Orleans. The units which form the basis of this controversy were located at 4443 and 4445 Wilson Avenue and consist of six two bedroom apartments per unit. In June, 1979 the parties contracted for Bonura to make extensive renovations, improvements and repairs of these two buildings, in order that they could be sold as condominiums.

The agreed price for the work is in dispute. The work began in June, 1979 and progressed through October, 1979. Itemized billing statements were sent by the plaintiff to the defendant from the time the work began in June, 1979 through April, 1980. The construction work stopped after the defendant had completed the major work on the building at 4443 Wilson Avenue. At this time, the apartment at 4443 Wilson was basically complete, except for certain minor repairs and the final plumbing and electrical inspections. The total amount billed by the plaintiff for the completed work was $175,440.93. The total payments by the defendant were $146,-000.00. The unpaid balance of $29,440.93 constitutes the amount for which the plaintiff sues.

After the work stoppage by the plaintiff, the defendant hired Marion Fritscher to complete the work at 4445 Wilson Avenue and to do the rehabilitation work at 4415 and 4435 Wilson Avenue. The total cost of the completion work was $123,066.69, which included $9,000.00 in supervisory fees.

The record reveals several facts to be in dispute. There is conflicting testimony concerning the price agreed upon for the construction contract and the circumstances surrounding the work stoppage.

Mr. Boniira testified that he believed that the Wilson Avenue property was owned personally by the defendant Livingston Hiern and that Mr. Hiern was personally responsible for the contractual obligations under the construction contract. He testified that he told Mr. Hiern that the work was to be performed on the basis of cost plus 10% overhead and 15% profit. He stated that he had inspected some of the apartment units and that he told the defendant that he thought it would take $70,000 to remodel the buildings. He further testified that he could not give a firm price because he had not seen all the units and, at the time of the quotation of price, he was unaware of the severe vandalism of certain apartments and of the defendant’s desire to add additional building items which were not a part of the original contract. The plaintiff also testified that the defendant never complained about the quality of the work or the completion of the work, nor did he complain about the bills. Bonura said that he stopped work when the defendant failed to pay the outstanding bills for the work that had been completed.

The defendant, Livingston Hiern, testified that he was told by the plaintiff that the total cost of the renovations, repairs and improvements was $70,000 for both buildings. The amount was to consist of $57,000 plus $13,000 for new roofs and repairs to the upstairs balcony railings. He said that the plaintiff told him that the job could be done on a cost plus 10% overhead and 15% profit, but that when the defendant asked for a firm price, the plaintiff told him $70,000. Mr. Hiern stated that the plaintiff was aware that the Wilson Avenue property was owned by Housemaster Corporation and that the contract was with the corporation because all permits for work were secured in the name of the defendant company and the bills were paid with company checks. Mr. Hiern testified that he made no additions to the work which was originally agreed upon under the contract. He stated that the vandalism which took place consisted of stolen paint and broken windows, however, he contended that replacement of the windows was included in the job. With regard to the billings, the defendant stated that he never questioned the addition of overhead and profit to the bills. He testified, however, that he did occasionally discuss the bills with the plaintiffs wife because she had prepared them.

He stated that he became concerned between June and September, 1979 when he was paying $10,000 to $15,000 every two weeks. He stated that he went to the job site and spoke to the general foreman, Garland Russell. The defendant told Mr. Russell he had to talk with the plaintiff because the price of the job was getting too high. He expressed his concern to Mr. and Mrs. Bonura when the amount of the bills exceeded $70,000. He then spoke to the plaintiff about stopping the job, however, he realized that he was facing a dilemma because the units were partially complete and could not be rented. The defendant testified that the plaintiff told him that there were going to be cost overruns but the amount would not be great as the materials had been paid and the major subcontractors had been paid. The defendant then told the plaintiff to at least complete six units and then he instructed the plaintiff to stop work. This situation occurred in October, 1979 and the defendant testified that the costs at this time were between $90,000 and $100,000. He stated that at the end of the billings, the cost had jumped to $176,000.

On appeal, the plaintiff argues that the construction contract that he agreed to with the defendant was a cost plus a percentage contract pursuant to which he is owed $29,-440.93. In attacking the trial court’s ruling that the price charged under the contract was unreasonable, the plaintiff contends that the testimony of the expert, Marion Fritscher, was irrelevant and immaterial. The plaintiff reasons that the expert failed to establish a basis of comparison of cost, as the witness did not show that his job and the plaintiff’s job were quantatively or or qualitatively comparable.

Therefore, this Court must decide the following issues: (1) What was the nature of the contract entered into by the parties? (2) If it was a cost-plus contract, did the plaintiff bear its burden of proving the costs incident to the contract? (3) Were the costs reasonable? and (4) Did the trial court err in relying upon the testimony of the expert, Marion Fritscher, in finding that the costs were excessive?

Nature of the Contract

There are three basic types of construction contracts: lump sum contracts; cost plus a percentage of the cost contracts; and cost plus a fixed fee contract. See: Standard Oil Co. of Louisiana v. Fontenot, 198 La. 644, 4 So.2d 634 (1941). In a cost plus a percentage of the cost contract, the owner reimburses the contractor for the costs of the material and labor and the contractor’s profit or gain is to be a certain percentage of the total cost of the project. Standard Oil Co. of Louisiana v. Fontenot, supra. Planning Systems Corp. v. Murrell, 374 So.2d 719 (La.App., 4th Cir., 1979); writ den. La.App., 376 So.2d 319 and La.App., 377 So.2d 843.

It is evident from a review of the record that the lower court, when faced with a conflict in the testimony, resolved the conflict in favor of the plaintiff and his reasons for judgment imply that the parties had entered into a cost plus contract. Our review of the record convinces us that the trial court was not clearly wrong in its findings. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).

The plaintiff testified that he agreed with the defendant to be paid on a cost plus basis. He was to be paid ten percent for overhead and fifteen percent for profit. He originally estimated that the job would cost $70,000. He stated that he never gave a firm price because this would be impossible considering the bad condition of the premises. The bills from Bonura, Inc., which were paid by the defendant, clearly indicated the plaintiff’s “10% overhead” and “15% profit.” (Exhibit P 1) The testimony of the general foreman, Garland Russell, supported the plaintiff’s position. Mr. Russell testified that although he was not present.when the plaintiff and defendant discussed price, the plaintiff had told this witness that the job was to be calculated on a “time plus basis.” (Tr. 49-50).

The defendant admitted that this was the first time that he had been involved in a cost plus contract and he did not like it. The defendant argues that he considered the $70,000 figure to be a ceiling. However, he testified that he authorized the completion of at least six apartments, even after he knew the price would exceed $70,-000.

These facts satisfy us that a cost plus contract had been entered into by the parties.

Cost Owed Pursuant To The Contract

The plaintiff alleges that the defendant owes the sum of $29,440.93, this figure being the difference between the total billings less the total payments under the construction contract. The defendant denied further indebtedness and asked that the plaintiff be held to a standard of strict proof.

Under a cost plus contract, the contractor is hired in a supervisory capacity and when the owner cancels the contract, the contractor is entitled to reimbursement for labor and materials and the profit thereon at the time of cancellation. Delta Paving Co. v. Woolridge, 252 La. 161, 209 So.2d 581 (La.App. 4th Cir., 1967). Likewise, the owner is not entitled to recover for the cost of completion upon cancellation of the contract. Kerner v. Gilt, 296 So.2d 428 (La.App. 4th Cir., 1974), writ den. 300 So.2d 185. The rationale for such denial is that the contractor has been paid commensurate with the progress of the work done, therefore, presumably neither the contractor nor the owner has sustained any loss. Planning Systems Corp. v. Murrell, supra.

Under a cost plus contract, where the owner denies being indebted to the contractor, the contractor has the burden of proving each and every item of expense in connection with the job, and he must itemize each and every expenditure made by him. Planning Systems Corp. v. Murrell, supra.

In this case the plaintiff identified, in globo, a series of bills, periodic statements of those bills and balance sheets reflecting expenses and payments concerning the job on Wilson Avenue. The identification and introduction into evidence of these documents satisfied the plaintiff’s burden of proving each and every item of expense in connection with the job.

The contractor who is involved in a cost plus contract is under an obligation to see that the owner gets value received. Lagasse et al. v. Allen, 219 La. 745, 54 So.2d 6 (La., 1951). The contractor must show that his work was performed efficiently and without the necessity of recurring remedial work suggestive of poor workmanship, so that the owner is not faced with excessive labor cost. Kerner v. Gult, supra. Therefore, when there exists a contract to do a job for whatever it might cost, as in the case of a cost plus contract, it is implicit that the price charged will not be whatever the contractor sees fit to charge, but will be whatever may be shown to be a reasonable and proper cost. Wendel v. Maybury, (on rehearing), 75 So.2d 379 (La.App. Orleans, 1954) citing Lee v. National Cylinder Gas Co., 58 So.2d 568 (La.App. Orleans, 1952). In finding that the charges were excessive and were not reasonable the trial court was greatly influenced by the testimony of the expert witness, Marion Fritscher.

The plaintiff offered no expert testimony to substantiate that the charges were reasonable and not excessive, but relied upon the direct testimony of Mr. Bonura, the president of the corporation, and another lay witness who was an employee of plaintiff. Their testimony did not convince the trial court that the charges were reasonable and not excessive. We have reviewed the record in this matter and we do not find that the trial court findings are clearly wrong. Arceneaux v. Domingue, supra.

There was only one expert witness called to testify with regard to the nature of the costs involved in this case, a Mr. Marion Fritscher. Mr. Fritscher was obviously qualified as an expert in the field of construction. He had been a general contractor since 1957, having built over 1,400 houses, had constructed a large number of doubles and fourplexes and 16 condominiums. He had been involved in both new construction and renovation work. His work involved residential and commercial construction.

Mr. Fritscher testified that he worked on four apartment complexes on Wilson Avenue, including the two which are the subject of this litigation. He testified that the apartment buildings located at 4443 and 4445 Wilson Avenue consist of six two bedroom apartments per unit, for a total of twelve apartments. The two apartment buildings located at 4415 and 4435 Wilson contain ten apartments per unit, for a total of twenty apartments. These buildings consist of one bedroom apartments.

Mr. Fritscher testified that at the time he started work on these apartments the complex at 4443 Wilson had been completed by the plaintiff, except for the final inspee-tions for wiring and plumbing and some minor rewiring of the units. The complex at 4445 Wilson was incomplete in that it needed additional electrical and plumbing work. The completion of the plumbing on these apartment units cost an additional $4,900, and the completion of the electrical work cost $2,150. The witness stated that he could not observe the materials used on the building located at 4443 Wilson, but that the downstairs apartment at 4445 Wilson contained extensive used wiring.

The expert testified that before beginning repairs to 4415 and 4435 Wilson he stripped these apartments down to the stud walls. He completely renovated these units with all new materials, except for three used tubs.

Mr. Pritscher testified that the total cost for the twenty units located at 4415 and 4435 Wilson Avenue was $123,016.69. The total cost of the twelve units located at 4443 and 4445 Wilson Avenue was $146,-000.00 paid to the plaintiff, plus the completion amount of $6,050 for a total cost of $152,050.00.

The expert witness testified with regard to an analysis of these total cost figures:

4415 & 4435 Wilson (20 Apartments)
Electric: $720 per apartment
Plumbing: $2,475 per apartment
Labor: $2.00 per square foot
4443 & 4445 Wilson (12 Apts.)
$1,845 per apartment
$3,471 per apartment
$6.50 per square foot

Based upon this analysis, the expert witness concluded that the costs were excessive for these particular items charged by the plaintiff. (Tr. 82)

Under cross examination, the witness admitted to certain minor variances in the work completed by himself and that completed by the plaintiff.

We take cognizance of the fact that the buildings renovated by the plaintiff and those renovated by the expert were in the same locality and the work was completed in a time frame which was in close proximity. The work done and materials used were comparable though not exact. There exists a large unexplained difference in cost when one compares the costs involved in the renovation of twelve two-bedroom apartments using considerable used materials, with twenty one-bedroom apartments using nearly all new materials. Although the evidence presented by the defendant’s expert was not as precise as would have been desirable, it presents a sufficient basis upon which the trial judge could have reasonably found that the plaintiff’s costs were excessive. The trial judge did not commit manifest error in this regard.

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against the appellant.

AFFIRMED.

      . The work involved plumbing, electrical work, carpentry, masonry, roofing, sheetrock, painting, aircondition and heating work, iron work, carpeting, fencing, cleaning, clearing and painting.

      . The plaintiff testified that the work stopped because the defendant was unable to pay. The defendant testified that he asked the plaintiff to stop working because of the cost overruns.

      . This amount includes a $9,000 supervisory fee.

      . This consists of $4,900 for plumbing and $2,150 for electrical work.

      . The expert testified that he did no roofing, fencing nor driveway work nor did he install shutters. He testified that he did outside work consisting of bricking mail box slots, putting in new railing and repairing steps.


text:
    Louis J. BRAQUET, et als. v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND.
    No. 13051.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Rehearing Denied Sept. 24, 1982.

      George P. Webre, Metairie, for plaintiffs-appellants.
    Chaffe, McCall, Phillips, Toller & Sarpy, C. Manly Horton, Wiley G. Lastrapes, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiffs, the collateral relatives and presumptive intestate heirs of James Mitchell Rogers, have brought this action seeking revocation of the donation mortis causa by James M. Rogers to defendant, The Administrators of the Tulane Educational Fund (Tulane). Plaintiffs allege that Tulane failed to fulfill the condition imposed upon the legacy by the testator, i.e., the construction of a non-sectarian chapel on the campus of Newcomb College of Tulane University, memorializing decedent’s late sister, Myra Clare Rogers. Following a trial on the merits, the trial court dismissed the plaintiffs’ suit and the plaintiffs filed this devolutive appeal.

James Mitchell Rogers, testator, died in March 1959. He left a last will dated July 9,1954, which revoked all previous wills and bequeathed his entire estate to Tulane,

“for the construction of a non-sectarian chapel on the campus of Newcomb College of Tulane University. This chapel, which shall be of such size and design as to serve the needs of the University, shall be known forever and marked as the Myra Clare Rogers Memorial Chapel, and is given by me to serve as an everlasting memorial of her life and service to the community as a member of the faculty of Newcomb College.”

Tulane, seized of all estate assets in 1959, successfully sued to invalidate a codicil prohibiting alienation of any real estate.

In 1972 the same individuals who are plaintiffs-appellants in this action sued to nullify the donation mortis causa for Tulane’s failure to build the chapel. Tulane had not commenced any type of construction. The trial court found defendant’s delay unreasonable and granted Tulane a deadline within which to perform, viz., 18 months to complete the chapel. This Court affirmed, but amended the trial court judgment and ordered that construction begin within twelve months and that the chapel should be completed within 24 months, and, on rehearing, absent delays beyond Tulane’s control. Braquet et al v. The Administrators of the Tulane Educational Fund, 304 So.2d 720 (La.App. 4th Cir. 1974).

On May 2, 1977, plaintiffs filed the instant suit seeking an accounting from Tulane alleging that the condition imposed by James M. Rogers upon the legacy has not been fulfilled. It is not disputed that funds derived from the James M. Rogers Estate were used by Tulane to construct a building which, on May 14, 1976, was dedicated and named the Myra Clare Rogers Memorial Chapel. The plaintiffs complain that this building is not in compliance with the will of the testator because it accommodates religious and non-religious activities and does not memorialize Myra Clare Rogers.

Plaintiffs argue on appeal that certain facts concerning the nature of the chapel were decided in Braquet et al v. The Administrators of the Tulane Educational Fund, supra, and are res judicata. Secondly, the plaintiffs argue that the testator’s intentions were misinterpreted by the trial court so as to make them violate the Louisiana Constitution in that the building houses the Judeo-Christian Chair of Religion. Additionally, plaintiffs complain that the trial court erred in holding that Tulane has satisfied the intent of the testator by building the Myra Clare Rogers Memorial Chapel.

The issues presented for consideration on this appeal are (1) Did the holding in Bra-quet et al v. The Administrators of the Tulane Educational Fund, supra, establish as res judicata facts concerning the nature of the chapel to be built? (2) Did the trial court interpret the will as requiring the fulfillment of an unconstitutional condition? (3) Did the building of the Myra Clare Rogers Memorial Chapel fulfill the intent of the testator?

Res Judicata

Plaintiffs argue in brief that this Court’s decision in Braquet et al v. The Administrators of the Tulane Educational Fund, supra, established as res judicata that in order to fulfill the intent of the testator Tulane had to (1) build a traditional chapel (2) memorializing Myra Clare Rogers, and only her, (3) within 24 months of August 1, 1974. Also established as res judicata by the decision in Braquet et al v. The Administrators of the Tulane Educational Fund, supra, plaintiffs argue, was (4) that a multi-purpose building was not what the testator intended and (5) that the chapel was to be marked and forever known as the Myra Clare Rogers Memorial Chapel with a specifically worded plaque installed.

In Louisiana, res judicata is stricti juris; “a final judgment has the authority of res judicata only to those issues presented in the pleadings and conclusively adjudicated by the court.” See: Lambert v. Maryland Casualty Company, 403 So.2d 739 (La.App. 4th Cir. 1981); Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974); McKean v. Campbell, 372 So.2d 652 (La.App. 1st Cir. 1979); New Orleans Mortg. Co., Inc. v. City of Kenner, 362 So.2d 1217 (La.App. 4th Cir. 1978); McNeal v. State Farm Mutual Automobile Ins. Co., 278 So.2d 108 (La.1973); Olsen Engineering Corp. v. Hudson Engineering Corp., 289 So.2d 346 (La.App. 1st Cir. 1974). Louisiana application of the doctrine of res judi-cata establishes a presumption of correctness and precludes re-litigation of the object of a judgment only when there is (1) identity of the parties, (2) identity of “cause”, and (3) identity of the “thing” demanded. La. Civil Code Art. 2286; Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981); R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976). For these purposes “cause” refers to the fact or facts which give rise to the judicial relief sought. See: Lege v. United States Fidelity and Guaranty Company, 186 So.2d 670 (La.App. 3d Cir. 1966), writ refused, 249 La. 478, 187 So.2d 448.

This Court in its opinion in Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, at p. 721, identified as the single issue presented “whether Tulane must return the legacy for failure to meet the condition of the onerous donation within a reasonable time.” At the time of the rendition of the judgment by this Court in Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, Tulane had not commenced the building of any structure in connection with the Rogers legacy. The holding of this Court in Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, at p. 724, ordered “defendant to complete construction of the Chapel within 24 months of the time this judgment becomes final or to take steps to place the plaintiffs herein in possession of the estate if the chapel has not been completed within the time allotted.” Neither the issue identified by the Court nor the holding of the court concerned the nature, type, quality, usage or specifications of the chapel that the testator intended Tulane to build.

The fact which gave rise to the judicial relief sought in Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, was the failure of Tulane to construct anything with the proceeds of the Rogers' estate. The fact which gives rise to this present case is plaintiffs’ complaint that what Tulane has built is not the “chapel” intended by the testator.

There exists a lack of “identity of ‘cause’ ” between Braquet et a 1. v. The Administrators of the Tulane Educational Fund, supra, and this present action. Plaintiffs’ exception to certain facts as res judi-cata, therefore, cannot be sustained.

Interpretation of the condition imposed upon the legacy

Plaintiffs complain that the trial court misinterpreted the testator’s intentions so as to make them violate the Louisiana Constitution. The violations alleged by plaintiffs concern the creation of a Judeo-Chris-tian Chair of Religion by Tulane, and the conducting of classes, lectures, and seminars in religion by Tulane, these activities taking place in the Myra Clare Rogers Memorial Chapel.

The will of James M. Rogers required as a condition of the legacy that Tulane construct a chapel memorializing his late sister Myra Clare Rogers. The will did not in any way prohibit or require Tulane to engage in any form of religion related academic instruction. A review of the court record in this case reveals that the trial court did not interpret the will as requiring Tulane to engage in any form of religious instruction. As such, the issue of whether Tulane’s activities are constitutional is not properly a part of this action. It was not ruled upon by the trial court and will not be considered by this Court. The real issue properly presented to the trial court and to this Court on appeal from the trial court’s judgment is: Did the building by Tulane of the Myra Clare Rogers Memorial Chapel satisfy the intent of the testator?

Fulfillment of the testator’s intent

The plaintiffs argue that the building erected by Tulane does not comply with the intent of the testator because the building facilitates both religious and non-religious activities and does not memorialize Myra Clare Rogers. In his reasons for judgment the trial court stated “that the intent of the testator has clearly been fulfilled by the construction of a non-sectarian chapel in memory of Myra Clare Rogers on the campus of Newcomb College of Tulane University.” The question which this Court must answer is whether this factual determination by the trial court should be disturbed. The finding of the trial court should not be disturbed if the record establishes that the finding is not clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The testament provides the best evidence of the testator’s intent. Dated July 9, 1954 it bequeathed as follows:

“I leave my estate existing at the date of my death to the Administrators of the Tulane Educational Fund for the construction of a non-sectarian chapel on the campus of Newcomb College of Tulane University. This chapel, which shall be of such size and design as to serve the needs of the University, shall be known forever and marked as the Myra Clare Rogers Memorial Chapel, and is given by me to serve as an everlasting memorial of her life and service to her community as a member of the faculty of Newcomb College.”

The evidence at trial, both testimonial and documentary, established certain facts. Within the twenty-four month period established by this Court in Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, Tulane constructed the Myra Clare Rogers Memorial Chapel on the campus of Newcomb College of Tulane University. The chapel is used for traditional Catholic, Protestant, Jewish, Episcopalian and Baptist religious services, Inter-University Christian Fellowship, Judeo-Christian studies, weddings, baptisms, music-recitals, lectures, seminars and classroom instruction.

At trial, two clergymen prominently active in the University religious community testified regarding their participation in the planning, building and use of the Chapel. Father Mclnnes, a Roman Catholic priest, testified that “The function of the (planning) committee was to design a building which met the religious needs of the whole of the university on (an) ecumenical and intra-religious basis.” (Tr. p. 36.) Father Smith, an Episcopal priest, testified “the chapel would be a place to meet the full spiritual needs of the people of the campus community and that included worship, teaching music, art, anything that helps a person transcend himself in relationship to God.” (Tr. p. 67) The remainder of the testimony of both these witnesses indicated that they felt the building constructed and its present use met their expectations and as such conformed with the role of a chapel “of such size and design at to serve the needs of the University.”

Evidence at trial also established that a permanent plaque is placed in the main entrance vestibule proclaiming the building to be the Myra Clark Rogers Memorial Chapel. Further, all literature and announcements concerning the chapel and activities held there identify the building as the Myra Clare Rogers Memorial Chapel or, at least, the Rogers Memorial Chapel.

The trial court, in his reasons for judgment, stated that “the construction of the Myra Clare Rogers Memorial Chapel, its size and its design as a University Chapel intended to facilitate traditional religious worship, as well as counseling and other academic functions, is not contrary to the testator’s intent.” The trial court’s ultimate conclusion dispositive of the issue, as mentioned above, was “that the intent of the testator has clearly been fulfilled.” A careful review of the entire record establishes that this finding is not clearly wrong. As such, pursuant to the guidelines for appellate review of facts in civil cases as enunciated in Canter v. Koehring Company, supra, and Arceneaux v. Domingue, supra, this finding of the trial court will not be disturbed.

For the foregoing reasons the judgment of the trial court is affirmed. All costs are assessed to appellants.

AFFIRMED.

      . The present plaintiffs defended that action. Succession of Rogers, 138 So.2d 251 (La.App. 4th Cir. 1962)

      . August 1, 1974 is cited by plaintiffs as the date when this Court’s decision in Braquet became final.

      . In his will the testator expressed the inscription he desired to be placed on the memorial plaque: “I would like for a permanent plaque to be placed in the said Chapel indicating that the chapel is given in memory of Myra Clare Rogers, who was bom on September 4, 1874, and died on May 30, 1932; who received the degrees of Bachelor of Science (Newcomb College) in 1896 and Master of Arts in 1898 from Tulane University, and the degree of Doctor of Philosophy in 1928 from the University of Chicago; who in 1900 became an instructor in Latin in the Newcomb High School and later served as its principal until it was discontinued by the College in 1921 when she became Assistant Professor of Latin at Newcomb College in which position she served with grace and scholarly distinction until her death in 1932, and represented the tradition and qualities of womanhood which the College has exemplified; and that the Chapel is given in her memory by her devoted Brother, James Mitchell Rogers.”

      . On rehearing the order was amended to require completion of construction within 24 months, except for delays caused by circumstances beyond Tulane’s control. Braquet et al. v. The Administrators of the Tulane Educational Fund, supra, at 724.

      . The evidence does not establish the exact words on the plaque and it is unclear whether the full content of testator’s desired wording is contained. See footnote 3. This does not, however, affect the court’s holding.


text:
    F. A. NOBILE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12826.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Rehearing Denied Sept. 24, 1982.
    Writs Denied Nov. 19, 1982.

      Richard J. McGinity of McGinity & McGinity, New Orleans, for plaintiff-appellant.
    Floyd F. Greene, New Orleans, for defendant-appellee.
    Before KLEES, BYRNES, and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff, F. A. Nobile, brought an action for damages for injuries sustained in an automobile accident which occurred on May 21, 1975, near the intersection of Magazine and Foucher Streets in the City of New Orleans. The case was referred to the Commissioner for trial and after an extensive trial on the merits, the Commissioner awarded judgment in favor of the plaintiff, F. A. Nobile, and against the defendant, New Orleans Public Service, Inc., in the sum of $89,387.02. This judgment was amended by the district court judge and the award to the plaintiff was increased to the amount of $142,281.09. The plaintiff appealed the judgment. We find no error in the district court’s judgment and affirm.

The issues to be considered on appeal are: (1) Did the district court err in its refusal to award damages for loss of past income? (2) Did the district court err in its refusal to award damages for loss of future income, which income is comprised of loss of salary and loss of profits and benefits?

The facts are uncontested: On May 21, 1975, at 8:30 A.M. the plaintiff was operating his vehicle in a westerly direction on Magazine Street. When he approached the intersection of Magazine and Foucher Streets, he was forced to stop because of congested traffic. The plaintiff’s vehicle stopped some three feet from a van truck and was in this position one to two minutes when the plaintiff’s vehicle was struck by the defendant’s bus which was being driven by a New Orleans Public Service employee. The impact pushed the plaintiff’s car into the rear of a van truck that had stopped ahead of it.

The plaintiff sustained a sprain of his right thumb, soreness of the left shoulder, neck and low back pain. He was initially treated at the Emergency Room of Mercy Hospital. He was admitted to the hospital and remained there for treatment for five days. The plaintiff’s provisional diagnosis was acute cervical and lumbar strain, degenerative arthritic condition of the lumbar spine, and an acute strain of the right thumb. While in the hospital, the plaintiff was treated with physical therapy, muscle-relaxant medication and pain killing medications. After release from the hospital, the plaintiff recuperated at home for a period in excess of two weeks. He continued to suffer low back pain. The pain in the neck and thumb had subsided. On June 9, 1975, approximately three (3) weeks after the accident, plaintiff returned to his contracting business on a limited basis.

Throughout the next year he complained of continuous pain in his lower back and was treated on a regular basis by Dr. Wil-not Ploger, an orthopedic surgeon. He was treated with muscle relaxants and pain killers, and a cloth corset was prescribed for support of his lower back. On June 14, 1976 the plaintiff was again admitted to Mercy Hospital where he remained until June 21,1976. He was diagnosed as having acute lumbar disc syndrome and was treated with traction, physical therapy and pain killing medication. Upon his release from the hospital, the plaintiff continued periodic office visits to Dr. Ploger. A metal corset and other patient support aids were prescribed on May 12, 1977. It was Dr. Plo-ger’s opinion that the trauma of the accident of May 21, 1975, aggravated the arthritic condition of the plaintiff’s back and initiated the back complaints.

On January 24,1979 the plaintiff consulted another orthopedic surgeon, Dr. Bernard Manale. He diagnosed the plaintiff as suffering from degenerative spondylosis, apon-dylolesthesis, narrowing of the disc spaces, osteophyte formation with the possibility of spinal stenosis. Dr. Manale found that as a result of the condition, the plaintiff had a thirty percent (30%) impairment of the body as a whole. Dr. Manale and Dr. Ploger felt the plaintiff’s condition suggested the possibility of a ruptured disc. Dr. Manale, unlike Dr. Ploger, was of the opinion that the plaintiff should undergo surgery for correction of his back problem.

On March 16, 1979, the plaintiff was examined by Dr. George Berkett, an orthopedic surgeon. Dr. Berkett was of the opinion that at the time of the examination, the plaintiff had recovered from the effects of the accident.

The plaintiff, who formerly had a very active lifestyle, both socially and in business, was severely restricted in his activities after the accident.

Plaintiff, an architect, owned and operated a business known as F. A. Nobile, Inc., a successful engineering and contracting corporation. He was involved with designing, engineering, cost estimating, purchasing of materials and supervising every job his company performed. The plaintiff contends that since the accident he has sustained a great reduction in the volume of his business, a proportionate reduction in salary and in the retained earnings of the company.

The district court stated in its reasons for judgment:

“In addition, the Court is of the opinion, that the award of $80,000.00 for pain and suffering, past and future, as well as for permanent disability should be increased to the sum of $105,000.00. The Court is further of the opinion that plaintiff has not satisfactorily proven his future loss of earnings. The Court is of the opinion, however, that he has established losses in the amount of $27,894.07, and the Court will amend the Commissioner’s report accordingly.”

The plaintiff argues that the award of $27,894.07 only compensates for the loss of corporate profits and benefits and does not take into account plaintiff’s loss of salary in the amount of $63,331.74. He further argues that loss of future income was proven and that he proved such losses in the amount of $132,226.15.

Before a trial court award can be disturbed as inadequate, the reviewing court must consider the award in light of the facts and particular circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La.1979). The reviewing court will not disturb the award unless, based upon the particular facts involved, the trier of facts abused his great discretion. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Reck v. Stevens, supra. Likewise, the reviewing court must give great weight to the conclusions of the trier of facts and should not disturb the trier of facts reasonable evaluation of credibility and the reasonable influences he draws from the facts. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977).

One element of the damages from a permanent partial disability, which results from an accident, is any loss of earnings attributable to that disability. Gobin v. Kogel, 375 So.2d 755 (La.App. 4th Cir., 1979) writ ref. 388 So.2d 486. Plaintiff must prove the past and future loss of income by a preponderance of the evidence. Hardie v. Pylant, 375 So.2d 189 (La.App. 2nd Cir., 1979) citing Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971).

Moreover, the law is well settled that loss of future profits are recoverable when it is proven that such loss has actually been sustained, even though the amount of the loss cannot be established with mathematical certainty. Schwartz v. United States Fire Insurance Co., 375 So.2d 718 (La.App. 4th Cir., 1979). Such damages must be proven with reasonable certainty in order to be recovered. Landvoight v. La. State Employees Retirement System, 337 So.2d 881 (La.App. 1st Cir. 1976).

The expert utilized by the plaintiff to evaluate his business losses was Dr. Seymour S. Goodman, a professor at the Graduate School of Business at Tulane University. He was qualified by the court as an expert in economics. He testified at length in an attempt to demonstrate to the court the extent of the plaintiff’s economic losses resulting from the accident.

The Commissioner analyzed the testimony of the economist and found: “Mr. Nobile did not prove to my satisfaction that the Corporation suffered any loss.” (Commissioner’s Report-Tr 15). The Commissioner reasoned that:

“Considering the above testimony of Mr. Nobile, it is evident that Dr. Goodman’s assessment of the income loss of the Corporation is based on gross sales volume which has fluctuated because of a voluntary decision of Mr. Nobile, and not from the involuntary effect of Mr. Nobile’s injury.” (Commissioner’s Report-Tr 17)
The Commissioner concluded: “..., the gross sales were voluntarily reduced by Mr. Nobile, and, hence, his personal income would be subject to the voluntary reduction of gross sales. (Commissioner’s Report — Tr 18).

In reviewing the case and the exceptions to the decision of the Commissioner, the trial court amended the judgment of the Commissioner by awarding an additional $25,000.00 for pain and suffering and permanent disability. He also awarded the plaintiff business losses in the amount of $27,894.07.

The plaintiff argues that since the trial court awarded $27,894.07 in business losses, that the court accepted Dr. Goodman’s formula. Accordingly, plaintiff reasons that Dr. Goodman’s formula should be used in awarding Mr. Nobile past and future income losses and future losses of corporate benefits and assets.

Although the district judge amended the Commissioner’s report to award plaintiff the sum of $27,894.07 for the loss of corporate profits and benefits, translated into a reduction in the net worth and, therefore, in the value of plaintiff’s stock, the record does not support this award.

Plaintiff introduced over 100 exhibits including corporate income tax returns from its inception in 1958, annual balance sheets and various schedules and charts analyzing sale and income. These records support the Commissioner’s refusal to award any sum for this item of damages.

The accident occurred on May 21, 1975 and could have little effect on the corporate activities for the fiscal year ending July 31, 1975. At this time the earned surplus/net worth of the corporation was $55,433.18. At the time of trial in June, 1979, the value of the corporation had increased to $64,-296.87, using the fiscal year ending July 31, 1978. (Emphasis Supplied). The corporation also continued to pay substantial amounts into plaintiff’s pension fund and life insurance policies as it had done prior to the accident. There were reductions in gross sales in the year immediately following the accident but gross sales in fiscal 1978 exceeded those in fiscal 1975. The corporation had net losses of $30,470.54 in fiscal 1974, the year before the accident and had a net loss of $16,758.41 for fiscal 1975, the year of the accident. The net worth of the corporation reached its peak at fiscal 1973 when it was $86,422.21, but the records show a steady decline to $65,546.10 at July 31, 1974, $55,433.18 at July 31, 1975 and $39,432.09 at July 31, 1976. The net worth then increased to $56,368.54 on July 31,1977 and to $64,296.87 on July 31, 1978. These figures justify the action of the Commissioner in refusing to make an award for reduction in the value of the corporation or for loss of corporate profits and benefits.

Although the district judge may have been influenced by the reduction in gross sales that occurred in the year immediately following the accident and concluded that plaintiff had suffered a compensable economic loss, this award cannot serve as a basis for-any additional awards.

The district judge refused to make an award for future loss of corporate profits and benefits or for reduction in the value of the corporate stock and we cannot say that his decision was manifestly erroneous.

In seeking an award for loss of income plaintiff reasons that since the trial court granted an award for permanent disability, it must follow that plaintiff should have been awarded damages for loss of earnings. Plaintiff contends that the disability caused a dimunition in his activities and hence produced an actual loss of earnings. The record does not support the plaintiff’s position.

There is no automatic award for loss of income due to partial disability. The disability must result in a loss of income for it to be compensable. In this case, the plaintiff is a professional, whose earnings depend upon his training and professional skills, which are more mental than physical. Therefore, a curtailment of his physical activities does not necessarily translate into a dimunition in his earning capacity.

The Commissioner found that the plaintiff voluntarily regulated his income by his own actions. There is no error in this finding as it is clearly supported by the record. In the fiscal year ending July 31, 1972, the corporation had gross sales of $315,916.86 and taxable income of $36,325.33, with Mr. Nobile drawing an income of $44,948.00. During the fiscal year ending July 31, 1973 the corporation had gross sales of $611,-804.18, taxable income of $7,547.88 and Mr. Nobile drew an income of $46,863.80. However, for the fiscal year ending July 31, 1974, the year preceeding the accident, the corporation showed gross sales of only $68,-468.22 with a net operating loss of $30,-470.54 and Mr. Nobile drew only $18,000.00. (Emphasis Supplied). At the end of fiscal year 1978, some three years after the accident, the gross sales of the corporation had increased to $193,782.35 with taxable income of $6,962.62 and Mr. Nobile drew income of $19,700.00. We cannot conclude that the Commissioner’s finding of a voluntary variation in personal income is clearly wrong, as this finding is supported by the record.

The annual salary or draw of the plaintiff cannot be precisely ascertained from the corporate tax returns which were introduced into evidence as plaintiff operated on a calendar year and the corporation was on a fiscal year basis. Exhibits were prepared to reconstruct Mr. Nobile’s annual earnings from the corporate tax returns and records, but these figures cannot be verified from the corporate exhibits filed into evidence. The best evidence of the plaintiff’s personal income would have been his personal income tax returns. Although this item of proof is not absolutely required, it is obviously probative and helpful. Where numerous corporate records were introduced into evidence, the absence of the plaintiff’s personal tax returns is a factor which may have been considered by the Commissioner in arriving at his conclusion that the plaintiff did not prove his loss of earnings.

Under the circumstances, the Commissioner was not clearly wrong in finding that the plaintiff had failed to sustain his burden of proof required to substantiate awards for reduction in the value of the corporation and loss of past or future income. Nor was the district judge clearly wrong in concurring in the Commissioner’s refusal to award damages for past or future earnings and future loss of value of the corporation. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Canter v. Koehring, 283 So.2d 713 (La.1973).

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed against the appellant.

AFFIRMED.

      . The Commissioner’s award of $89,387.02 consists of $80,000.00 for physical pain and suffering (past and future), and mental anguish and anxiety (past and future); $3,350.00 for future medical; $3,931.33 for past medical expenses and $1,105.69 for property damage.

      . The district court judge’s award of $143,-281.09 consists of $105,000 for past and future pain and suffering and permanent disability; losses of $27,894.07, and affirmation of the award of $9,387.02 for special damages.

      . His activities included golfing, sailing, country drives, dancing, attending parties and football games, and an active sexual relationship with his wife.

      . The award for pain and suffering and permanent disability is not raised as an issue on appeal.

      . In the absence of an answer to the appeal, the sole issue presented on appeal with regard to the award for business losses is whether this amount should be increased. No argument has been presented that the award was improper or that it should be reduced.

      . The corporation is not a party to this suit— plaintiff claims a reduction in the value of the corporate stock owned by him.


author: DUFRESNE, Judge.

text:
    TRAVELERS INSURANCE COMPANY v. FREDERICK TOWING COMPANY, INC. and Highlands Insurance Company.
    No. 5-27.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Rehearing Denied Sept. 22, 1982.

      Wilbert J. Tauzin, II, Tauzin & Sonnier, Thibodaux, Ronald L. Myers, Myers & Pet-tigrew, Houma, for intervenor, appellant.
    John G. Gomila, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiff, appellee.
    Patrick E. O’Keefe and Richard A. Sabal-ot, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant, appellee.
    Before BOUTALL, DUFRESNE and GRISBAUM, JJ.
   DUFRESNE, Judge.

This matter arises from an injury sustained by David W. Streety, Jr., appellant, on April 25, 1974. At the time of the accident, David W. Streety, Jr. was employed by Lafourche Repair Service. Travelers Insurance Company, the compensation carrier for Lafourche Repair Service, paid benefits to the appellant under the auspices of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq.

On April 25, 1975 Travelers Insurance Company filed suit against Frederick Towing Co., Inc. and Highlands Insurance Company alleging that Frederick Towing caused or substantially contributed to the appellant’s injury. Subsequently, on April 22, 1977, the appellant filed a Petition of Intervention in this action asserting claims against Frederick Towing Corporation as a third party tortfeasor.

On October 16, 1980 the appellees, Frederick Towing Corporation and Highlands Insurance Company, filed an Exception of Prescription. The District Court upheld the exception and dismissed the appellant’s Petition of Intervention. The intervenor has appealed. We reverse the trial court’s sustaining of the exception of prescription and dismissal of Mr. Streety’s intervention.

The issue before this court is whether a timely filed suit by an employer’s compensation carrier against a third party tort-feasor interrupts prescription as to an intervention by the injured employee filed two years and four months from the time of the filing of the insurer’s suit and three years and four months from the date of the accident.

The appellees base their plea of prescription upon La. R.S. 9:5801 which provides in part:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts by the commencement of a civil action in a court of competent jurisdiction and in proper venue.”

They cite a federal case, Holden v. Placid Oil Co., 494 F.Supp. 292, 296 (E.D. La. 1980) which contends that if a suit is timely filed within the prescriptive period, prescription is “interrupted” and a “new statutory period” begins. Holden defines an “interruption” of liberative prescription as merely stopping the time clock and starting the prescriptive period to run once again from the time of the interruption. We disagree with this interpretation of an interruption of prescription. When a prescriptive period is “interrupted”, the time clock stops for the party suing and for those parties who “benefit” from the interruption. Thus, in this case we must decide whether David Streety benefits from the timely filed suit of his employer’s compensation insurer for amounts it has paid to Mr. Streety under the Longshoremen’s and Harbor Workers’ Compensation Act. Under the circumstances of this case, we think the employee does benefit from the timely filed suit of the compensation carrier.

We refer to Allstate Insurance Co. v. Theriot, 376 So.2d 950, 954 (La. 1979) for the criteria as to whether there has been an interruption of prescription as to Mr. Streety’s intervention. Allstate requires that the first suit must be based upon the same factual occurrence as the subsequent claim by intervention and that the subsequent claimant be “closely connected in relationship” and have “identity of interest” with the original plaintiff. If these elements are present, the purposes of prescription, that of providing adequate notice to a defendant and avoidance of undue prejudice in preparation of defenses, may be satisfied. Allstate, supra.

Applying the above principles to the case at bar, we find that prescription has been interrupted as to Mr. Streety’s intervention. Mr. Streety’s intervention is based on the same factual occurrence as that initially pleaded by Travelers Insurance Company.

There is also relationship and identity of interest between compensation carrier, Travelers Insurance Company, and the injured employee, Mr. Streety since in a compensation suit such as the case at bar, the possible plaintiffs are related not only by the contract of employment but also by the compensation act (in this case the Longshoremen’s and Harbor Workers’ Compensation Act) and share in the damage award based upon the tort committed against the injured employee. When an employer, the employer’s compensation insurer, or an employee timely sues a tortfeasor based on an injury covered by a compensation act, a defendant is put on notice that the law also provides a remedy to the other. Malone & Johnson, Workers’ Compensation. § 367 La. Civ. L. Treatise, 1982 Suppl. 18-21 (2nd Ed. 1980). Thus, we find that the legal demand of the plaintiff, Travelers Insurance Company, gave adequate notice to the defendants, Frederick Towing Corporation and Highlands Insurance Company, of the injuries sustained by David W. Streety, Jr., and prescription has been interrupted as to Mr. Streety’s intervention.

The appellees’ plea of prescription is overruled, and this matter is remanded to the trial court for further proceedings in accordance with law. The defendants-appel-lees are east with all trial and appellate costs relating to the dismissal of appellant’s intervention.

REVERSED AND REMANDED.

      . Frederick Towing Corporation is its correct name.

      . If in certain circumstances a defendant can show that he will be prejudiced in his defense, and the subsequent litigant is not able to show a reasonable excuse for the delay, then the claim should be dismissed. Malone & Johnson, supra at 21.


author: BOUTALL, Judge.

text:
    Rebecca Colburn, former wife of Ronald Douglas Jordan, present wife of Johnny GRECO v. Ronald Douglas JORDAN and Gladys Heath, wife of/& Henry D. Jordan.
    No. 5-72.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Rehearing Denied Sept. 22, 1982.

      Gordon K. Konrad, Metairie, for Rebecca Colburn Jordan Greco, plaintiff-appellee.
    Harry R. Cabral, Jr., Metairie, for Ronald Douglas Jordan, Gladys Heath, wife of/& Henry D. Jordan, defendants-appellants.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

This is an appeal taken from a judgment declaring an act of partition a forgery and of no force and effect. We affirm in part and remand in part for further proceedings.

In 1974, Rebecca Colburn and Ronald Jordan were divorced. Several years later, both parties allegedly entered into an act of partition. Colburn now sues claiming that act to be a forgery. It is stipulated by both parties that this partition agreement is not a valid notarial act of partition due to the lack of proper formalities not having been signed before a notary public and witnesses. Jordan claims that Colburn signed the partition agreement on the hood of his car one morning when he went to pick up his children in accordance with his visitation rights. Jordan contends that the act of partition had previously been submitted to his former wife through their respective attorneys and that on the particular morning, she came outside in a fit of rage and signed the agreement in front of him. Col-burn denies these contentions claiming that she had never even seen the partition agreement and was not aware of its existence until she employed a new attorney to handle her quest for increased child support and for a community property settlement.

Both parties offered expert testimony concerning the validity of the plaintiff’s signature. The handwriting expert for the plaintiff testified that the signature was a forgery while the defendant offered two experts who testified that the signature in question was the plaintiff’s. The trial judge concluded that the signature on the document was affixed carefully and deliberately, and not one hurriedly signed on the hood of a car as defendant testified. He obviously disbelieved Jordan’s testimony as to Colburn’s signing in front of him.

After careful review of the record, we cannot say that the decision made by the trial judge concerning the conflicting testimony of the experts is clearly wrong. The standard of appellate review as explained in Canter v. Koehring, 283 So.2d 716 (La. 1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978) is that even though the Appellate Court may feel that its own evaluations and inferences are as reasonable, it should not disturb reasonable findings of the trial court when there is conflict in the testimony. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the Appellate Court should not disturb' this factual finding in the absence of manifest error, i.e., unless it is clearly wrong. In this case, dependent upon the assessment of credibility of the witnesses, there is a reasonable factual basis for the trial court’s finding, and it is not manifestly erroneous.

Accordingly, we affirm the judgment of the trial court against the defendant Ronald Douglas Jordan declaring the questioned act of partition to be a forgery and of no force and effect.

The next issue before the court is brought into contention because of this finding. Plaintiff sued not only her ex-husband Ronald Douglas Jordan but also his mother and father, Mr. and Mrs. Henry D. Jordan, to whom Ronald Jordan sold the property. The judgment is silent as to these two defendants and makes no disposition of any claim between plaintiff and these defendants. Mr. and Mrs. Henry D. Jordan have appealed the judgment along with their son but the only issue presented to us on their behalf is the validity of the trial judge’s overruling of exceptions of no cause or right of action in the beginning of the law suit. The plaintiff has not appealed nor has she filed answer to the Henry D. Jordan appeal seeking any positive relief. As we view the matter, the only issue before us is the determination of whether the trial judge properly overruled the exceptions of no right or no cause of action. Although we feel compelled to remand their portion of the suit for further proceedings, we feel we should pronounce upon this issue as a matter of judicial economy.

The suit filed by Rebecca Colburn alleges that she was the owner of certain real estate in indivisión with Ronald Douglas Jordan, that she learned in 1979 that there was a recorded partition of community property between her and Ronald Jordan in the conveyance and mortgage records of the Parish of Jefferson, that her signature was a forgery and at no time did she ever execute an act transferring her interest, that the defendant Ronald Jordan sold the property to Gladys and Henry D. Jordan despite his inability to transfer her undivided one-half interest, and she alternatively prays for recognition as owner of an undivided one-half of the property or for damages. In connection with the suit she apparently filed a notice of lis pendens.

The trial court dismissed the exceptions of the Henry D. Jordans of no right or no cause of action, and we affirm. The exception of no right of action is of course entirely inappropriate. The exception of no cause of action is appropriate to the circumstances but unavailing in this instance. Considering the allegations of forgery, certainly plaintiff has a cause of action to the forger as well as the person to whom the forger transfers title. Otherwise, every land title in Louisiana could be destroyed simply by a forger making out a title to himself and then transferring the property to another. Appellant has offered us no authorities in support of his exception, and we know of none.

Although we have no hesitancy in disposing of the exceptions filed, we do not perceive how we can proceed further to a determination of the rights existing between plaintiff and Mr. and Mrs. Henry D. Jordan, defendants. The matter seems only to have been tried basically on the issue of the forgery, and there is insufficient evidence to make a determination as to the rights of these parties. Accordingly, we must remand this matter to the trial court for a determination of the rights between plaintiff and these defendants as to any issues appropriate in this case.

For the reasons assigned, the judgment is affirmed insofar as it declares against the defendant Ronald Douglas Jordan, and is remanded for further proceedings against the other defendants, Gladys Heath, wife of/& Henry D. Jordan, in accordance with the views expressed herein. All costs of court are assessed against Ronald Douglas Jordan.

AFFIRMED IN PART, REMANDED IN PART.


author: COVINGTON, Judge.

text:
    Lynn Marie Simonson Dunn THOMPSON v. Rosby Lennon THOMPSON.
    No. 82 CA 0469.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 5, 1982.
    Marlene K. Bonds, Baton Rouge, for plaintiff-appellant Lynn Marie Simonson Dunn Thompson.
    Fred H. Belcher, Jr., Baton Rouge, for defendant-appellee Rosby Lennon Thompson.
    Before COVINGTON, WATKINS and SAVOIE, JJ.
   ON MOTION TO DISMISS APPEAL

COVINGTON, Judge.

This matter is before us on a motion to dismiss the appeal of the plaintiff, Lynn Marie Simonson Dunn Thompson. Defendant-appellee’s basis for the motion is that the appeal was not perfected within the delay authorized by law. We find that there is no merit in the motion.

The facts are that the plaintiff and defendant were legally separated by judgment signed on October 7, 1981, wherein she was awarded $600 per month as alimony pendente lite. Thereafter, defendant filed a rule for reduction or termination of the award; this was denied. As a result of further action by the plaintiff, on January 13, 1982, a stipulated judgment for contempt and past due alimony was signed, fixing the arrearage at $900 and making it executory, awarding attorney fees and also holding the defendant in contempt. Approximately two weeks later, plaintiff filed a rule for contempt and past due alimony (pendente lite); he countered with a rule asking for reduction of the alimony because of an alleged change in circumstances. Both rules were heard on March 11; judgments were then rendered reducing the amount of alimony to $450 per month, and recalling and vacating the plaintiffs rule for contempt and past due alimony. Separate judgments were signed on March 22, 1982.

Plaintiff did not appeal the judgment on the rule which reduced the alimony award. However, she did appeal the judgment dismissing her rule for contempt and past due alimony, as shown by the caption of her motion for appeal. Defendant now contends that her appeal should be dismissed as being untimely; however, his memorandum in support of the motion does not address the appealed judgment — it addresses the judgment to reduce alimony, which has not been appealed.

Nevertheless, since the motion to dismiss is addressed to the appeal before this Court, we will consider the question of timeliness of the appeal.

We find that LSA-C.C.P. art. 2087, rather than LSA-C.C.P. arts. 3942 and 3943, is applicable. Frazier v. Frazier, 374 So.2d 198 (La. App. 4 Cir. 1979), and Henson v. Henson, 350 So.2d 979 (La. App. 2 Cir. 1977), provide authority for the position that plaintiffs appeal, taken within the 60-day delay period prescribed in Article 2087, was timely. The judgment appealed having been signed on March 22, no notice of judgment being necessary under the circumstances and no application for a new trial having been made, the delay for devolutive appeal began on March 30. The appeal was taken on May 20; therefore, it was timely.

MOTION TO DISMISS DENIED.


author: CIACCIO, Judge. PER CURIAM.

text:
    STATE of Louisiana v. Keith DILLON and Kevin Dillon. STATE of Louisiana v. Kevin DILLON.
    No. K 0008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 11, 1982.
    Rehearing Denied Sept. 24, 1982.

      Harry F. Connick, Dist. Atty., John H. Craft, Jack Peebles, Asst. Dist. Attys., New Orleans, for relator.
    Ronald J. Rakosky, New Orleans, for respondent.
    Before REDMANN, ISRAEL M. AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Keith and Kevin Dillon have been charged by bill of information with five counts of receiving stolen property taken in several burglaries, in violation of La. R.S. 14:69. Kevin Dillon has also been charged with one count of simple burglary of the home of one Mark Duffy on March 13,1982, in violation of La. R.S. 14:62.2. Defendants pleaded not guilty and defendant Kevin Dillon moved to suppress evidence consisting of hundreds of items of property (allegedly the fruits of the burglaries) taken from the Dillons’ home by the New Orleans Police pursuant to a search warrant issued on March 18,1982. Defendant claimed that the affidavit submitted in support of the application for the search warrant did not establish probable cause for its issuance, thus violating his rights under the 4th and 14th Amendments to the U.S. Constitution; Art. 1., Sec. 5., Louisiana Constitution of 1974; and La. C. Cr. P., Art. 162. On July 6, 1982, the trial court granted this motion to suppress and the State has applied to this Court for review of that ruling.

The trial judge, in her reasons for judgment, found the affidavit inadequate to establish probable cause to search the Dillon residence, under the two-pronged test of State v. Paciera, 290 So.2d 681 (La. 1974). That case held that if an affidavit serving as the basis for issuance of a search warrant is based entirely on hearsay, it must set forth sufficient underlying circumstances and details to allow the issuing magistrate to find both the informant and the information given reliable. The trial court found neither prong of the test satisfied, since the informant was not alleged to be reliable or to have given accurate information in the past, and since the informant was not alleged to have had any direct knowledge that the stolen goods would be at the Dillon residence.

The informant did allege that Keith and Kevin Dillon and another individual named Jerry Duhon were the perpetrators of some of the burglaries in the area; that they told him they had broken into a house and had taken certain named items; and that the house he pointed out to police (which was to be the subject of the search) was the residence of all three alleged perpetrators.

However, since the informant did not say he observed any of the stolen items at the residence, nor that the defendants told him they had any such items there, nor any other such direct allegation which could lead to this residence as the place where the stolen goods were to be found, the trial court concluded there was no factual basis for a search of the residence. The trial court found the independent corroboration by police, either alone or in combination with the information from the informant, also to be insufficient to establish probable cause for the search since it too included no direct finding that the stolen goods would be at the residence. We do not agree.

Factors which support the credibility of an unidentified informant may include either prior accurate reports or specific independent corroboration of the accuracy of the instant report. State v. Paciera, supra. Here, the police were able to corroborate virtually all the significant pieces of information given by the informant, by independent evidence. Police found that a fingerprint lifted from the point of entry of the recently burglarized residence was that of Kevin Dillon; all of the specific items of property named by the informant were identical to items on the list of stolen property which was taken in the Duffy burglary; New Orleans Public Service records revealed that the house pointed out to police was listed as the residence of a Jerry Dillon. Furthermore, the factual detail of the information given by the informant (notably, the detailed description of stolen items from the Duffy home, some of which were highly uncommon) itself serves to support the informant’s credibility and to negate the possibility that he fabricated his story. Draper v. U.S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The Court in Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1959), discussing Draper, supra, observed: “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” 393 U.S. at 417, 89 S.Ct. at 589.

Affidavits should be read in a commonsense and realistic manner, and, as the Louisiana Supreme Court observed in Paci-era, supra, quoting Spinelli, supra:

“ ‘... in judging probable cause magistrates are not to be confined to niggardly limitations or by restrictions on the use of their common sense’, and ‘their determination of probable cause should be paid great deference by reviewing courts.’ 393 U.S. 419, 89 S.Ct. 590. Further, where the law enforcement officers have respected the constitutional mandate to serve a warrant before searching, ‘Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” (Citations omitted) 290 So. 2d at 687.

In discussing judicial review of warrants, the Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1963), stated:

The Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In her reasons for judgment the trial court noted that the affidavit establishes probable cause to arrest the defendants. But it was her view that the affidavit’s lack of stated facts specifically connecting the stolen goods with defendant’s residence made the affidavit fatally defective as support for the search warrant.

There is a substantial body of Louisiana jurisprudence, however, as well as case law from Federal and other state courts, holding that there is no need for stated facts explicitly connecting the stolen goods with defendant’s residence to establish the probability that the stolen goods may be found at the residence of the defendants. The required nexus may be established by such considerations as the nature of the crime, the nature of the items sought to be found, the time lapse between the commission of the crime and the date the search warrant is applied for, and other such factors. These elements give rise to a reasonable inference that the most likely place the defendant would store such items (as in this case, the fruits of a burglary), would be at his home, especially if there are no facts to suggest any other likely locations (such as multiple residences, vehicles, etc.). See e.g., State v. Poree, 406 So.2d 546 (La.1981); State v. Mena, 399 So.2d 149 (La.1981), State v. Baker, 389 So.2d 1289 (La.1980), State v. Guidry, 388 So.2d 797 (La.1980). See also, U. S. v. Lucarz, 430 F.2d 1051 (9th Cir. 1970); U. S. v. Damitz, 495 F.2d 50 (9th Cir. 1974); U. S. v. Chester, 537 F.2d 173 (5th Cir. 1976); U. S. v. Salas, 488 F.2d 939 (5th Cir. 1974); U. S. v. Teller, 412 F.2d 374 (7th Cir. 1969); Aron v. United States, 382 F.2d 965 (8th Cir. 1967); Anderson v. U. S., 344 F.2d 792 (10th Cir. 1965); Porter v. U. S., 335 F.2d 602 (9th Cir. 1964); U. S. v. Bowers, 534 F.2d 186 (9th Cir. 1976); U. S. v. Rahn, 511 F.2d 290 (10th Cir. 1975).

State v. Guidry, supra, is the leading Louisiana case in this area, and closest on point. The informant in Guidry (arrested for armed robbery) implicated the defendant as the person who received and paid the informant for stolen property on several occasions. The informant gave police the nickname of this person and his contact telephone number. Police traced the number to defendant’s residence and stated that this individual was well known to them under the nickname given by informant. On this basis, a search warrant was issued to search defendant’s residence for stolen property.

Defendant Guidry argued that the affidavit did not show a connection between his alleged illegal activities and his residence, and thus did not establish probable cause to believe any stolen property was there. The Louisiana Supreme Court disagreed, holding that the facts given did give rise to a reasonable inference that some of the stolen property was probably at the defendant’s residence. The Court observed in footnote: “Relevant considerations [as to whether such an inference is reasonable] include the type of crime, the nature of the items sought, the opportunity for concealment, and the inference as to where a criminal would hide stolen property. Although the property in this case could have been stored elsewhere, it was reasonable to assume that the normal place a criminal dealing in stolen jewelry would keep such items [was] at his house,”, 388 So.2d at 800, n. 1.

The Louisiana Supreme Court in Guidry, supra, and in Baker, supra, adopted the reasoning of the Minnesota Supreme Court in a similar case, as follows:

“Although the affidavit did not contain any averment of firsthand information that fruits of the crime would be found at defendant’s residence, the Fourth Amendment does not make such information essential. All that is required is that the affidavit, interpreted in a common sense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.” Rosillo v. State, 278 N.W.2d 747, 748-49 (Minn.1979). (Other citations omitted.)

Here, as in Guidry, supra, the facts set out in the affidavit give rise to a reasonable inference that the items sought were probably at the location to be searched. The crime committed was a burglary which took place only a week before the date of the warrant request. The items sought to be found consisted of a long list of stolen goods, some of them bulky and requiring protection from the elements. The place to be searched, according to the informant, was the residence of all three alleged perpetrators. Although, as in Guidry, supra, the stolen property could have been stored somewhere else, it seems reasonable to assume that the normal place the perpetrators would have kept the items was at their residence. There are no facts to suggest another possible hiding place. Furthermore, since the burglary had occurred only a week before, it would seem unlikely that the perpetrators had had sufficient time to dispose of all the stolen items elsewhere.

The Louisiana Supreme Court repeated its holding in Guidry, supra in at least three later cases (Mena, Poree, and Baker, see citations above) all involving similar affidavits, in that there were no stated facts placing contraband or stolen goods at the respective defendants’ residences. Nevertheless, the Court found in each case that probable cause for a search of the residence could be established by reasonable inferences to be drawn from the facts and circumstances of the case, as set out in the affidavit, such as those described in Guidry, supra.

In Poree, supra the affidavit in question tated that “through a conversation with” defendant, the officers believe stolen items to be stored in defendant’s apartment. The Court agreed with defendant that this mere allusion to a conversation, without stating the contents, did not provide probable cause to issue a search warrant for the apartment. Nevertheless, the Court found that the remaining facts in the affidavit (as to the type of crime, the nature of items to be found, proximity of the residence to the robbery) did support a reasonable belief that the items might be found at defendant’s residence.

The Court reasoned, as it had in Guidry, supra:

The affidavit must show a sufficient nexus between the items to be seized and the place to be searched. Without direct observation, the appropriate connection may be manifested by the type of crime, the nature of the items sought, the extent of opportunity for concealment, and normal inferences as to where a criminal would be likely to hide the instrumentalities and fruits of the crime. United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970). 406 So.2d at 547.

See Also: United States v. Bowers, 534 F.2d 186 at 192 (9th Cir. 1976), where the Court stated:

“The magistrate is not required to determine whether in fact the items to be searched for are located at the premises to be searched, but only whether there is reasonable ground to believe they are there, United States v. Damitz, 495 F.2d 50 (9th Cir. 1974). This standard is met. From the information in the affidavit the magistrate could reasonably infer that at least some of the objects sought were probably at the address, even though ‘the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely’ to conceal the property sought.” (Citation omitted)

The affidavit in question sets out facts shown to be reasonably trustworthy by independent corroboration, on which a magistrate could have found probable cause to issue a search warrant for defendant’s residence, for items taken in the burglary of the Duffy home. Although facts supporting probable cause to arrest do not necessarily give rise to probable cause to search a defendant’s residence, the facts here appear to do so, considering the nature of the crime, the nature of the items sought to be found, the proximity in time between the crime and the request for a warrant and the reasonable inference that the residence of all the alleged burglars would be the most likely place to store stolen goods pending disposal. That such facts and inferences may be employed to provide a nexus between alleged illegal activity and a defendant’s residence so as to provide probable cause to search the residence is well established by recent Louisiana jurisprudence, and is not inconsistent with the Fourth Amendment principles as articulated by the United States Supreme Court.

As the Louisiana Supreme Court stated in Guidry, supra:

“.the issue before us does not involve a particular individual’s right to a fair determination of his guilt or innocence. The issue is the applicability of the exclusionary rule, which is totally unrelated to the guilt or innocence of this particular individual. The exclusionary rule involves a balancing between society’s right to have its individual members live in privacy and freedom from police state tactics and society’s right to have its individual members live in safety and freedom from crime. The Federal and state constitutions only protect citizens from unreasonable searches and seizures. Since all police procedures in this case were conducted reasonably, there is no reason to interpret probable cause technically or to apply mechanically a rule intended to deter misconduct and bad faith law enforcement procedures.”

We conclude that the search in question was a reasonable one that violated neither constitution nor statute.

Accordingly, mandamus is granted, and it is ordered that the Honorable Miriam G. Waltzer, Judge, Criminal District Court, Section “A”, set aside her ruling granting the motion to suppress and in lieu thereof deny the motion to suppress.

REVERSED AND REMANDED.

ON REHEARING

PER CURIAM.

Rehearing denied. The Uniform Rules for the Courts of Appeal, effective July 1, 1982, Rule 4-6 allows the Court to “issue an instanter peremptory writ where the circumstances and the interests of justice require such action.” Furthermore, after considering the merits of defendants’ application for rehearing, we remain convinced of the correctness of our original ruling.

      . The affidavit in support of the application for the search warrant served on the Dillon’s home at 6201 Dorothea Street recites the following reasons for issuance of the warrant:
      “On 03-13-82, the residence of a subject named Mark Duffy was burglarized under item C-13114-82. During the investigation officers lifted fingerprints which were from the point of entry. A lengthy list of stolen property was made and is attached to this application.
      “On 03-13-82, Officer Terrence Duffy had occasion to speak to an informant who told Officer Duffy that the perpetrators of some of the burglaries in this district are named Keith Dillon and Kevin Dillon. Also, that another subject named Jerry Duhon was involved in numerous burglaries in New Orleans and in Baton Rouge. At this time, the Latent Print section was contacted and the names were given to Detective Loosemore who checked the names with the prints lifted under the above item number. Loosemore positively identified the print as belonging to Kevin Dillon, w/m, date of birth: 12-12-63.
      “At this time Officer Terrence Duffy again spoke to his informant and was told that he had been told by the two Dillon brother(s) and Duhon that they had broke into a house and got a gold Police badge, a police radio and gun and an Akai reel to reel, a Panasonic eight track recorder player and a quadraphonic stereo system. This property is identical to property taken in the above burglary. At this time the informant took Officer Terrence Duffy to 6201 Dorothea Street and pointed the residence out and stated that this was the home of Keith and Kevin Dillon and that Duhon was staying at this address also because his parents had thrown him out of their house.
      “A check was made with Public Service and it was learned that the residence at 6201 Dorothea Street is listed as a Jerry Dillon reisind (sic) at this location.”
      The Affiant is Terrence Duffy.


author: DOMENGEAUX, Judge.

text:
    Clarence GUIDRY, et al., Plaintiff-Appellee, v. Edward D. RUBIN, et al, Defendant-Appellant.
    No. 82-294.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1982.

      Marion Overton White, Opelousas, for defendants-appellants.
    J. Minos Simon and Gregory K. Klein, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   MOTION TO DISMISS

DOMENGEAUX, Judge.

The plaintiffs-appellees, Clarence Guidry and Maudrey L. Guidry, move to dismiss the suspensive appeal taken by the defendants-appellants, Edward D. Rubin, Joshua J. Pi-tre and Patricia Dartez Guidry, from a trial court judgment rendered April 1,1982. We dismiss the suspensive appeal but maintain the appeal as a devolutive appeal.

The defendants-appellants, Edward D. Rubin, Joshua J. Pitre and Patricia Dartez Guidry, obtained an order of appeal on April 29, 1982, granting them a suspensive appeal from a judgment of the trial court rendered April 1, 1982. The Suspensive appeal bond was set at $9,854.18, including interest allowed to the date that security is furnished. No appeal bond was ever filed. On June 3, 1982 the plaintiffs-appellees, Clarence Guidry and Maudrey L. Guidry, filed a motion to dismiss the suspensive appeal. The plaintiffs-appellees contend that the suspensive appeal must be dismissed because the suspensive appeal bond was not furnished within the delay allowed. We agree.

The delay within which to take a suspen-sive appeal is provided for in LSA-C.C.P. art. 2123:

Art. 2123. Delay for taking suspensive appeal
Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice' under Article 1914.

Because the defendants-appellants did not move for a new trial, the thirty day delay for taking a suspensive appeal from the judgment of April 1, 1982 began to run on April 13,1982, seven clear days from the date of judgment. Therefore, the defendants-appellants had until May 12, 1982 to file their motion for a suspensive appeal and bond. The defendants-appellants filed a motion for suspensive appeal on April 29, 1982, but had not filed a bond as of June 2, 1982. Thus, the suspensive appeal was not timely perfected. However when a motion for appeal is filed within the delays allowed for a devolutive appeal, it will be maintained as a devolutive appeal. Succession of Buvens, 373 So.2d 750 (La. App. 3rd Cir. 1979). In the instant case the defendants-appellants filed their motion for appeal on April 1, 1982, well within the delay for perfecting a devolutive appeal. Therefore, this appeal will be maintained as a devolu-tive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

DEVOLUTIVE APPEAL MAINTAINED.

      . Art. 2087. Delay for taking devolutive appeal
      Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken within sixty days of:

        (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.


text:
    Jimmy Allen SMITH, et al., Plaintiffs-Appellants, v. H. J. LANDRENEAU BUILDING CONTRACTOR, INC., Defendant-Appellee.
    No. 82-313.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1982.
    George R. Privat, Lafayette, for defendant-appellee.
    Pucheu, Pucheu & Pucheu, Jacque B. Pu-cheu, Eunice, for plaintiff-appellant.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   MOTION TO REMAND

DOMENGEAUX, Judge.

The defendant-appellee, H. J. Landre-neau Building Contractor, Inc., moves to remand this suit to the trial court to enable it to traverse the right of the plaintiffs-appellants, Jimmy Allen Smith and Judy Ar-naud, to proceed with their appeal in forma pauperis. This motion is unopposed. We remand.

On April 15,1982 the plaintiffs-appellants moved for and were granted a devolutive appeal in forma pauperis. The defendant-appellee alleges in its motion that it believes the plaintiffs-appellants are able to pay the costs incurred in this suit and seek to traverse the plaintiffs-appellants’ right to proceed in forma pauperis. The defendant-appellee also alleges that this was the first attempt by the plaintiffs-appellants to proceed in forma pauperis and, therefore the defendant-appellee has not had an opportunity to traverse the right to proceed in forma pauperis.

In Ainsworth v. State Farm Mutual Automobile Insurance Company, 389 So.2d 1376 (La. App. 3rd Cir. 1980) this court set out the law applicable to remands in this situation as follows:

[1] The jurisprudence is well settled that where a devolutive appeal had been taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the appellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La. App. 1st Cir. 1962).
[2] Under the facts of this case, the mover has had insufficient opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Shepard v. Shepard, 349 So.2d 1026 (La. App. 3rd Cir. 1977); Darby v. Travelers Insurance Company, 272 So.2d 798 (La. App. 3rd Cir. 1973); Ross v. Hatchette, 247 So.2d 399 (La. App. 3rd Cir. 1971).

It is clear from a reading of the defendant’s motion that it has not had a sufficient opportunity to traverse and is therefore entitled to have this matter remanded to the trial court for the purpose of permitting it to traverse the plaintiffs’ right to proceed in forma pauperis.

APPEAL REMANDED.