author: LEAR, Judge.

text:
    Yvette B. ST. PIERRE v. Jeremiah J. ST. PIERRE.
    No. 82 CA 0279.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Remy Chiasson, Thibodaux, for plaintiff-appellee Yvette B. St. Pierre.
    Carlton J. Cheramie, Diaz & Cheramie, Golden Meadow, for defendant-appellant Jeramiah J. St. Pierre.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Yvette B. St. Pierre, filed a rule for occupancy of the family home pending partition of the former community under the provisions of LSA-R.S. 9:308. After a hearing on plaintiff’s rule, the trial court found that plaintiff was entitled to the use of the family home pending partition. This appeal resulted.

LSA-R.S. 9:308 provides, in pertinent part, as follows:

“In such cases [a spouse petitioning for use and occupancy of the family residence], the court shall inquire into the relative economic status of the spouses and the needs of children, if any, and shall award the use and occupancy of the family residence to the spouse in accord-anee with the best interests of the family”

The determination by the trial court at issue herein is essentially a factual one. We find, however, that this record does not contain a transcript of the hearing in the trial court, nor does it contain a narrative of facts. And, the only documentary evidence contained in the record is a sworn statement by defendant listing his monthly income and expenses.

The lack of a transcript or a narrative of facts is imputable to the appellant. La.C.C.P. arts. 2130 and 2131; Succession of Walker, 288 So.2d 328 (La.1974); Clark v. Clark, 411 So.2d 548 (La.App. 1st Cir.1982); DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir.1980). Further, in cases where factual issues are involved, as in the case at bar, and the record on appeal contains no transcript, nor a narrative of the facts, the court applies the presumption that the trial court’s judgment is supported by competent evidence and affirms the judgment. Clark v. Clark, supra; DeLiberto v. DeLiberto, 400 So.2d 1096 (La.App. 1st Cir.1981); DeLaneuville v. Duplessis, supra.

Applying this presumption, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    Dwanda Faye MUSE v. Kordice M. DOUGLAS.
    No. 82 CA 0951.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Gregory 0. Wilson, Baton Rouge, for ap-pellee (plaintiff).
    Samuel Thomas, Tallulah, Joseph A. Gladney, Baton Rouge, for appellant (defendant).
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

The plaintiff-appellee seeks to dismiss this devolutive appeal from a judgment of the City Court of Baton Rouge on the ground that the appeal was not timely filed.

Plaintiff sued defendant seeking damages for slander in the sum of $2,750.00. The matter came up for trial on August 24, 1982. The defendant did not appear nor did her counsel of record. After the trial, the court rendered judgment in favor of the plaintiff for $1,500.00. Judgment was also read and signed on August 24, 1982. The defendant made no request for notice of judgment. The pertinent dates and facts of this motion to dismiss are as follows:

(1) August 24, 1982 — formal judgment signed and filed;
(2) August 31, 1982 — counsel for appellant filed an application for a new trial;
(3) September 1, 1982 — motion for new trial denied as untimely filed;
(4) September 17, 1982 — -counsel for defendant filed motion for appeal;
(5) September 21, 1982 — order signed granting devolutive appeal.

Pursuant to La.C.C.P. art. 4919, the delay for applying for a new trial shall be three days, exclusive of holidays. If notice of judgment is required, the delay commences the day after the clerk mails or the sheriff serves the notice of judgment.

According to La.C.C.P. art. 4917, notice of judgment must be given in three instances: (1) if the defendant was not served personally and made no appearance in the proceeding; (2) if the case is taken under advisement; or (3) if the court does not sign a judgment at the time and a party makes a request of record for notice of judgment.

The provisions of La.C.C.P. art. 4917 do not apply to the present case because (1) the defendant was personally served and filed an answer; (2) the case was not taken under advisement; and (3) counsel for appellant did not make a request for notice of the judgment.

In the present case, the motion for a new trial was not timely filed. The delay for applying for a new trial began on August 25, 1982, and ended at the end of the day on August 27, 1982. Since the defendant did not file a motion for a new trial until August 31, 1982, that motion was untimely and properly denied. The untimely motion for a new trial had no effect on the delay for appeal. Chauvin v. Matherne, 419 So.2d 1276 (La.App. 1st Cir.1982); Howard v. Hercules-Gallion Co., 417 So.2d 508 (La.App. 1st Cir.1982), writ denied 420 So.2d 984 (La.1982).

An appeal from a judgment rendered by a city court may be taken only within ten days from the date of judgment or from the service of notice of judgment when such notice is necessary. Where an application for new trial is timely filed, the delay commences the day after the motion is denied. La.C.C.P. art. 5003. In the instant case, the delay for appeal began running on August 25, 1982. The last day on which defendant could file an appeal was September 3, 1982. The motion for appeal was not filed until September 17,1982, well after the time for filing an appeal had expired.

For the foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.

      . For suits in a city court where the amount in dispute exceeds $500.00, but is $3,000.00 or less, the applicable procedural rules in the trial court are set forth in La.C.C.P. arts. 4911 through 4920. See La.C.C.P. art. 4902.


author: YELVERTON, Judge.

text:
    E. Wright HOLLOWAY, Plaintiff-Appellant, v. PERRY CHRYSLER-PLYMOUTH, INC., et al., Defendant-Appellee.
    No. 82-427.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Humphries & Humphries, Guy E. Hum-phries, Jr., Alexandria, for plaintiff-appellant.
    Trimble, Randow, Percy, Wilson & Foote, Lon P. Wilson, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Plaintiff’s Corvette automobile was damaged in a collision with a vehicle driven by Julian I. Perry. The Perry car was owned by Perry Chrysler-Plymouth,' Inc. and insured by Royal Globe Insurance Company. Plaintiff sued the driver, the owner and the insurer of the Perry car for property damage.

Defendants filed an exception of no right of action which was overruled. Defendants then admitted liability and the case was tried and submitted to a jury on the question of damages.

The jury returned a special verdict awarding plaintiff $1,791 as the cost to repair the Corvette, and $500 for depreciation. Plaintiff appeals this verdict claiming that the evidence supported larger awards, $2,272 for repairs and $1,000 for depreciation. Defendant answered the appeal claiming damages were excessive and that the trial court erred in overruling the exception of no right of action.

We affirm.

THE AWARD

The standard of review is whether the jury abused its discretion. No mechanical rule exists for the assessment of property damage, and each case rests on its own facts and circumstances as supported by the proof in the record. Bunkie Funeral Home, Inc. v. McNutt, 414 So.2d 1263 (La.App. 3rd Cir.1982). Plaintiffs argument that the award for repairs should be $2,272 is based upon an estimate prepared by the Chevrolet dealership in Alexandria. However, plaintiff did not have the car repaired by this estimator, but chose to have it repaired by another body shop at a lesser cost of $1,549. The jury award was obviously the sum of what had been actually paid for repairs plus the proven costs of three small items needed to complete repairs. We find no abuse of discretion in this essentially fair award.

The argument that the Corvette’s depreciation from the accident should have been $1,000 rather than the $500 awarded by the jury is based upon the testimony of a Chevrolet salesman who saw the Corvette before the wreck and afterwards, and stated that its trade-in value was reduced by $1,000 because of the wreck. There was conflicting evidence concerning the condition of the car before the accident. The jury also saw photographs of the car after the accident which show that the damages were not extensive.

Damages for depreciation of automobiles are recoverable if proved. Foil v. Durge, 196 So.2d 567 (La.App. 1st Cir.1967). We conclude that the jury’s award of $500 for this item was supported by the evidence and not an abuse of discretion.

THE EXCEPTION OF NO RIGHT OF ACTION

The ground for this objection was that plaintiff was not the owner of the Corvette. After the jury verdict the trial court heard arguments on the exception and overruled it.

Plaintiff testified at the trial that he was the owner. The record contains a lease-purchase agreement with plaintiff shown as lessee. Although this agreement is in the record it was not introduced in evidence and therefore it may not be considered as evidence. Broussard v. Champagne, 401 So.2d 1067 (La.App. 3rd Cir.1981).

The exception of no right of action was properly overruled.

The judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.

      . Under the terms of the agreement plaintiff assumed all liability for damage caused to the vehicle. Therefore, a remand to permit introduction of the lease-purchase agreement into evidence would end in the same result that we and the trial court have reached, i.e., that plaintiff had a right of action.


author: DOUCET, Judge.

text:
    FONTENOT & MITCHELL, Plaintiff-Appellee, v. ROZAS, MANUEL, FONTENOT & McGEE, Defendant-Appellant.
    No. 82-92.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 18,1983.
    Preston N. Aucoin, Ville Platee, for defendant-appellant.
    Tate, Tate & Tate, Paul Tate, Sr., Mam-ou, for plaintiff-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

This appeal arises from a dispute between two law firms as to the distribution of a fee engendered from representation by both law firms of a plaintiff in a personal injury lawsuit. The case was ultimately settled for $1,505,000.00, with the fee generated to the collective attorneys amounting to $464,-638.68.

From the inception of the case the law firms had been unable to agree as to how this fee was to be distributed. As a result of this disagreement, the firm of Fontenot & Mitchell sued the firm ot Rozas, Manuel, Fontenot & McGee, so that a court could fix the amount of the fee each firm was to receive.

For purposes of clarity, we shall refer to the firms hereafter by the names of the partners who took the most active roles in the litigation; McGee (for the Rozas firm) and Mitchell (for Fontenot & Mitchell).

It is the contention of McGee that the fee should be divided equally between the attorneys involved, or one-sixth to each lawyer. This would mean the McGee firm would receive four-sixths of the fee and Mitchell would receive two-sixths, based on the number of partners in each firm. Mitchell argues that the distribution should be one-half to each firm. The trial court ruled that the distribution of the fee should be one-half to each firm. From that ruling, McGee appeals.

Lonis West was badly injured on April 30, 1977, when the Gruman single-engine airplane he was piloting crashed and burned. Lonis’ brother Harry placed Mitchell in charge of the litigation within a day or two after the crash. Shortly thereafter Harry advised Mitchell that he was hiring McGee also, and Mitchell agreed to the joint employment. Subsequently, Linis West entered into a “contract for legal services with the firms of FONTENOT AND MITCHELL and ROZAS, MANUEL, FON-TENOT & McGEE”. This contract called for the attorneys to be paid “thirty-three and one-third (33V3%) percent of all amounts recovered.” Both firms participated actively in the preparation of the case, and the settlement negotiations. As noted, it appears that Mitchell and McGee spearheaded the work. Late in the settlement negotiations, Lonis West advised McGee that he desired that McGee only deal with the insurance company attorney. From the record, it appears that Mr. West perceived that the insurance company was trying to “divide and conquer” the two firms. It is clear that Mr. West did not discharge Mitchell, and in fact continued to consult with him, and Mitchell continued to take an active part in the case even beyond the settlement.

After a thorough study of the files of the two firms and of the evidence adduced at the trial of the matter, the trial court ruled that the case of McCann v. Todd, 203 La. 631, 14 So.2d 469 (1943) stood for the applicable principle of law in this ease and apportioned the fee one-half for each firm.

Appellant McGee assigns three specifications of error, the first being that the trial court erred in ruling that quantum meruit was inapplicable to this case, citing in support of his argument DR 2-107(A)(2) of the Code of Professional Responsibility and the case of Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978).

The courts of this state have consistently used quantum meruit to determine what portion of the eventual recovery should be received by an attorney who has been discharged before the conclusion of a case, regardless of the fee arrangement with the client before the discharge. Simon v. Metoyer, 383 So.2d 1321 (La.App. 3rd Cir.1980); Chaisson v. Law Firm of Dragon & Kellner, 335 So.2d 87 (La.App. 3rd Cir.1976); Schiro v. Perkins, 240 So.2d 920 (La.App. 4th Cir.1970) writ denied; Cabral v. Heitkamp, 252 So.2d 353 (La.App. 4th Cir.1971). This case is distinguishable from such circumstances, as it is from the Saucier case, supra, which also dealt with a discharged attorney. Here, both firms were involved in the case until after the settlement. Mr.. West testified that he had asked that McGee handle the negotiation of the settlement in its last stages but that it was never his intent to discharge Mitchell. Appellant’s own evidence indicates that Mitchell was still deeply involved in the case on December 26, 1979, some two months after the actual settlement had been agreed upon, and that Lonis West was in the office of Mitchell on that date for consultation with Mitchell. Since neither firm was discharged at any stage of the proceedings, we agree with the trial court that quantum meruit does not apply.

Turning to the issue of DR 2-107 of the Louisiana Code of Professional Responsibility:

DR 2-107 Division of Fees Among Lawyers.
(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
DR 2-107(A)(1)
(1) The client consents to employment of the other lawyer after a ful disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

The trial court found this rule inapposite to the facts of this case. We agree. Disciplinary Rule 2-107 is aimed at full disclosure to the client by his attorney that another lawyer has been associated BY THE LAWYER, and will be sharing in the fees. This rule mandates that the client must agree to the association and further that in such cases the division of the fee must be proportionate to the work performed by each lawyer. As the trial court pointed out in this case, there was a contract; a contract wherein Lonis West, himself, hired two law firms to represent him. That contract was signed May 13, 1977, only thirteen days after the accident, while Mr. West was still in the hospital recovering from his injuries. The contract specifically named the two law firms. Neither McGee nor Mitchell associated the other, as is contemplated by DR 2-107.

The facts also dispose of appellant’s assignment of error that Mitchell should not share in any portion of the fee generated after the settlement offer of $1,000,000.00, which was the figure offered when Lonis West decided that McGee should do the negotiating. Had Mitchell been discharged at that point, then perhaps that argument would be persuasive. Since it was clear that Mitchell was not discharged, then that firm must share in the entire fee. McCann v. Todd, supra.

Finally, we deal with appellant’s assignment of error that the fee should be divided by “head”. This would result in McGee’s firm of four lawyers receiving two-thirds, while Mitchell’s two-lawyer firm would receive one-third of the fee. Appellant cites the McCann case, supra, as authority for this position. The trial court agreed that McCann was controlling, but reached a different conclusion as to the division of the fee. In its written reasons for judgment the trial court quoted extensively from McCann concerning the division of fees among lawyers who undertake jointly to represent a client. The quotations from that decision of the Louisiana Supreme Court consistently point out that in such instances the lawyers are entitled to share equally in the fees obtained from such joint representation. The trial court then succinctly stated the issue:

“The only issue, as this court views the controversy, is whether the fee should be split between the firms as a unit, 50-50, or whether the fee should be distributed by heads, one-sixth to each individual member. There is language in McCann which could possibly be construed to favor a distribution by heads. However, to do so would stretch the clear and unambiguous language of P-1 which was on defendant’s form and which McGee filled in. Therein, Lonis West retained the firms of Fontenot and Mitchell, and Ro-zas, Manuel, Fontenot and McGee. Clearly, he retained the services of two law firms, and not six individuals.

The trial court then ruled that, based on McCann, and applying the contract entered into by the attorneys, that the fee be distributed to the respective firms on the basis of fifty percent each. For reasons assigned hereinabove, we affirm that ruling of the trial court.

During the pendency of this appeal, the contested funds have been placed in interest-bearing savings. We further hold that the interest accrued on these funds is to be divided equally between the two retained law firms.

All costs of this appeal are cast with appellant, Rozas, Manuel, Fontenot & McGee.

AFFIRMED.

      . P-1 refers to the employment contract between Lonis West and the two law firms.


author: DOMENGEAUX, Judge.

text:
    Jack C. CALDWELL, et ux, Plaintiffs-Appellees, v. PLANNING COMMISSION OF CALCASIEU PARISH and Police Jury of Calcasieu Parish, Defendants-Appellees, Sam Hale, et al., Intervenors-Appellants.
    No. 82-261.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    J. Michael Veron, of Scofield & Associates and Joe J. Tritico, Lake Charles, for intervenors-appellants.
    Plauche, Smith & Nieset, A. Lane Plauche, Lake Charles, for plaintiffs-appel-lees.
    Michael H. Bercier, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Jack C. Caldwell and Joan R. Caldwell, broght this action against defendants, Planning Commission of Calcasieu Parish and Police Jury of Calcasieu Parish, seeking judgment ordering said defendants to grant preliminary approval of the plans and specifications for a residential subdivision proposed by plaintiffs. Several neighboring property owners intervened joining defendants’ contention that defendants’ refusal to grant approval of the proposed subdivision constituted a proper exercise of their police power with respect to planning. After trial, judgment was rendered in favor of plaintiffs against defendants and inter-venors. Both defendants and intervenors appealed, whereafter defendants withdrew their appeal. Pursuant to defendants’ re-cission of their appeal, plaintiffs filed a motion to dismiss intervenors’ appeal for mootness inasmuch as defendants, subsequent to recalling their appeal, granted approval of plaintiffs’ proposed subdivision. In an opinion by this Court rendered August 13, 1982, and found at 419 So.2d 56 (La.App. 3rd Cir.1982), we denied plaintiff’s motion and referred it to the merits of intervenors’ appeal.

ON THE MERITS

A moot case is one which seeks to obtain a judgment on some matter which, when rendered, cannot, for any reason, have a practical legal effect upon a then existing controversy. State v. White, 358 So.2d 999 (La.App. 3rd Cir.1978); Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App. 3rd Cir.1979). Courts will not rule on questions of law which have become moot since their decree will serve no useful purpose and can give no practical relief. See State v. White, supra, and the cases cited therein.

In the present case, plaintiffs sought relief against the Calcasieu Parish Planning Commission and Police Jury for approval of a proposed subdivision. Inasmuch as defendants Planning Commission and Police Jury withdrew their appeal, electing instead to comply with the judgment of the district court by adoption of a resolution approving plaintiffs’ subdivision plans, the judgment of the district court is now final and executory as to those defendants. Even if this Court should conclude, as inter-venors contend, that the district judge erred in its judgment against the defendants, we could not reverse this final judgment. Absent an appeal by the Planning Commission or the Police Jury, plaintiffs’ subdivision now stands legally and properly approved by the defendants which acted pursuant to a judgment against them. In-tervenors’ only right to relief would be premised upon their showing that the Planning Commission abused their discretion in approving plaintiff’s plat. This they have not done nor is it likely that such an action would be fruitful. There is no legal impediment to plaintiffs proceeding with construction of the subdivision improvements. There is, therefore, nothing that can be accomplished in this Court by intervenors’ appeal, and accordingly it is hereby dismissed.

Costs on appeal are assessed against in-tervenors-appellants.

APPEAL DISMISSED.

      . It is undisputed that the subdivision plans complied with all zoning requirements and regulations. Plaintiffs’ suit claimed that the Planning Commission and Police Jury were arbitrary and capricious in denying approval of their second subdivision plat which more than complied with minimum restrictions of that area.

      . Ibid.


author: FORET, Judge.

text:
    Betty Ann Shroyer WEST, Plaintiff-Appellee, v. Marjorie Nell Savoie Royer GAJDZIK, Defendant-Appellant.
    No. 82-311.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.

      Brame, Bertstedt & Brame, James R. Morris, Lake Charles, for defendant-appellant.
    Charles E. McHale, Jr., New Orleans, for plaintiff-appellee.
    Before DOMENGEAUX,' FORET and LABORDE, JJ.
   FORET, Judge.

Betty Ann Shroyer West (plaintiff) brought this action to be recognized as the sole forced heir of decedent, Bob B. Royer, and to annul the judgment of possession rendered on April 15, 1977, in Succession of Bob B. Royer, Docket No. 15,203,14th Judicial District Court, Parish of Calcasieu, State of Louisiana. Named defendant is Marjorie Nell Savoie Royer Gajdzik, decedent’s wife at the time of his death, who was made the universal legatee of decedent’s property by testamentary disposition.

The trial court, after trial on the merits, rendered judgment in favor of plaintiff and against defendant, annulling and setting aside the above mentioned judgment of possession. The trial court further rendered judgment recognizing plaintiff as decedent’s sole forced heir and, as such, entitled to an undivided one-third interest in the estate left by him upon his death.

Defendant appeals and raises the following issues:

(1) Whether the trial court erred in finding that plaintiff’s action was subject to the prescriptive period set forth in LSA-C.C. Article 3548 (30 years), rather than that of LSA-C.C. Article 3542 (5 years); and, if so,
(2) Whether plaintiff may take advantage of the doctrine of contra non valentem to suspend the running of prescription; and,
(3) Whether the trial court properly annulled the judgment of possession under the provisions of LSA-C.C.P. Article 2004.

FACTS

Plaintiff is a person of age and a resident of the State of Michigan. She is decedent’s only child, having been born of his first marriage to Gertrude E. Mills. Defendant was decedent’s fourth wife. Decedent left a testament in statutory form in which he willed and bequeath his entire estate to defendant, and in which he named her as his executrix.

Decedent died in Calcasieu Parish on January 1, 1972, and defendant filed a petition some two weeks later to have the testament admitted to probate. The trial court, after finding that the testament complied with the requirements of law, issued an order directing that decedent’s testament be filed and recorded, and executed according to law with the right of defendant to qualify and be appointed executrix of decedent’s will in the event she deemed an administration of the succession to be necessary. Defendant paid the inheritence taxes due on the succession property and managed it for over five years before taking any further legal steps.

Defendant filed a “PETITION FOR POSSESSION” on April 15, 1977, in which she prayed for judgment recognizing her as the surviving spouse in community with decedent, and sending her into possession as owner of an undivided one-half interest in the property formerly constituting the community of acquets and gains. Defendant further prayed for judgment recognizing her as the sole heir and legatee of decedent, and sending her into possession as owner of the property constituting decedent’s estate. The trial court rendered an ex parte judgment of possession as prayed for by defendant.

Plaintiff filed a “PETITION TO ANNUL JUDGMENT AND FOR RECOGNITION AS FORCED HEIR” on February 23, 1981, after learning of the death of her father a couple of months earlier.

APPLICABLE PRESCRIPTIVE PERIOD

Defendant contends that the trial court erred in finding that the 30-year prescriptive period of LSA-C.C. Article 3548 was applicable to plaintiff’s action, and that said action had not prescribed. Defendant argues that plaintiff’s action is one for the reduction of an excessive donation, which is subject to the five-year prescriptive period provided for in LSA-C.C. Article 3542.

The trial court, in its written reasons for judgment, stated:

“Defendant relies on Louisiana Civil Code Article 3542 stating that the 5 year prescriptive period has lapsed and plaintiff cannot reduce the mortis causa donation. By looking at Civil Code Article 3548, it is apparent that when an entire succession is donated, a 30 year prescriptive period is applicable, not the 5 year prescriptive period, used in Article 3542. The Article cited by defendant relates to a reduction of a donation, an impingement on the legitime, not a complete disposition of the entire estate.”

LSA-C.C. Article 1502 provides, in pertinent part:

“Art. 1502. Reduction of excessive donations
Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum."

Succession of Smith, 182 La. 389, 162 So. 21 (1935), notéd on page 25 that:

“It thus appears that this court has consistently held that when a testator undertakes to disinherit a forced heir and disposes of the estate to his prejudice, the testator has done nothing except to make a disposition of property mortis causa, exceeding the quantum he may legally dispose of to the prejudice of forced heirs; that an attempted disinherison of a forced heir and bequeathing the entire estate to some one else does not strike the testamentary dispositions with nullity, but merely subjects these donations mor-tis causa to an action for the reduction thereof by a forced heir whose legitime has been ignored or impaired; and that such an action is barred by prescription of five years.”

See also In re Andrus, 221 La. 996, 60 So.2d 899 (1952); Roach v. Roach, 213 La. 746, 35 So.2d 597 (1948); Draper v. Van Leer, 197 La. 259, 1 So.2d 513 (1941).

Prescription begins to run against an action to reduce an excessive donation on the date that the testament is filed for probate. Draper v. Van Leer, supra; Succession of Dancie, 191 La. 518, 186 So. 14 (1939); Perrodin v. Clement, 254 So.2d 704 (La.App. 3 Cir.1971), writ denied, 256 So.2d 642 (La.1972).

It is our opinion that the trial court incorrectly characterized plaintiff’s action as one for an entire succession. No attack is made on the validity of decedent’s testament, and plaintiff seeks only to recover her legitime. We can construe this action in no other way than one from the reduction of an excessive donation. Thus, the 5-year prescriptive period of LSA-C.C. Article 3542 is applicable. Decedent’s testament was filed for probate on January 11, 1972, and plaintiff’s action for the reduction of an excessive donation has prescribed unless the running of prescription was interrupted or suspended.

CONTRA NON VALENTEM

Defendant contends that the doctrine of contra non valentem is unavailable to plaintiff to suspend the running of prescription because her ignorance of her father’s death resulted from her own neglect and failure to use reasonable diligence to attempt to ascertain that fact.

LSA-C.C. Article 3521 provides that prescription runs against all persons unless they are included in some exception established by law. Despite this express statutory provision, our Louisiana jurisprudence has recognized a limited exception where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Corsey v. State, Dept. of Corrections, 375 So.2d 1319 (La.1979).

Reynolds v. Batson, 11 La.Ann. 729 (La.1856), authoritatively lays down the three categories of situations in which our early jurisprudence held that the principle of contra non valentem applied so as to prevent the running of liberative prescription:

(1) Where there was some legal cause which prevented the courts of their officers from taking cognizance of or acting on the plaintiff’s action;
(2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and
(3) Where the debtor has done some act effectually to prevent the creditor from availing himself of his cause of action.

Corsey v. State, Department of Corrections, supra.

Modern jurisprudence also recognizes a fourth type of situation where contra non valentem applies so that prescription does not run:

Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

This principle will not except the plaintiff’s claim from the running of prescription if his ignorance is attributable to his own wilfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. Corsey v. State, Dept. of Corrections, supra; Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (1970); Sumerall v. St. Paul Fire & Marine Ins. Co., 366 So.2d 213 (La.App. 2 Cir.1978).

Plaintiff was twelve years old when she last saw decedent alive in 1938. Plaintiff had no further contacts with decedent thereafter. Her parents had obtained a divorce when she was three years old and plaintiff has always lived in and around the Detroit area since that time. She was adopted by her stepfather, Forrest J. Sparks, when she was fifteen years old, and was married to her present husband, Harry West, when she was eighteen years old. Decedent and his second wife lived in South Bend, Indiana, until plaintiff was approximately twelve years old, and then he began moving around the country. Plaintiff testified that, after decedent moved from South Bend, she was never given a definite address or location where he could be contacted. She did recall that decedent had attended his father’s funeral in South Bend in 1961, but stated that she had been unable to attend the funeral as she was notified too late of the death. She did attend her paternal grandmother’s funeral approximately four or five months later, but decedent failed to do so. Plaintiff testified that she had no contact with decedent’s brother or sister after 1961, although Lorabell Worth-ington, decedent’s sister, did have her telephone number and address in Detroit. She stated that she first learned of her father’s death when she was contacted by Frank Spalitta in December of 1980. Spalitta had been hired by certain third parties to locate plaintiff to obtain her signature on a quit claim deed to certain property they desired to purchase, which had been a part of decedent’s estate. Plaintiff testified that no members of decedent’s family had contacted her to inform her of decedent’s death in 1972. Her understanding of why her father had never contacted her after she was twelve was that he was very upset over the fact that she had been adopted by her stepfather. She knew of none of decedent’s marriages subsequent to his second one. She also had no knowledge of the fact that decedent had changed his name from Argus Schroyer to Bob Royer in December of 1952.

Frank Spalitta testified that his occupation was real estate title research. His occupation includes the location of missing heirs. The only information he was given at first, to help in his attempt to locate plaintiff, was a copy of the proceedings in Succession of Bob B. Royer, supra. Spalitta was able to locate plaintiff within two or three days using this very limited information and the telephone. He stated that it was one of the easiest cases he had worked on. Spalitta testified that, as far as he could tell, plaintiff knew nothing of her father’s death until he informed her of that fact. Plaintiff, under a proffer of proof, placed in the record a statement to the effect that Spalitta would testify that it was his impression that plaintiff had no knowledge of her father’s whereabouts until he informed her of such in December of 1980. Spalitta had an extensive conversation with plaintiff at this time, and stated that plaintiff gave him the impression that she was hurt by what she believed to be her father’s intention to avoid her completely.

It is our opinion that the doctrine .of contra non valentem is applicable here and had the effect of suspending the running of prescription until plaintiff learned of her father’s death in December of 1980. Plaintiff did not know that she had a cause of action for a reduction of the excessive donation made by her father until then, and she could not have learned by reasonable diligence of the existence of said cause of action. Plaintiff’s ignorance is not attributable to her own wilfulness or neglect.

We also find another basis for the application of the doctrine of contra non valen-tem. Defendant and her attorney both admitted that decedent had told them that he had a child by a previous marriage. Defendant stated that, to her knowledge, decedent had made no attempt to contact plaintiff, while he was alive and married to her. After their marriage, defendant and decedent traveled to South Bend to visit decedent’s brother and sister. Defendant testified that she had contacted Mrs. Worthington to tell her of her brother’s death, but had no subsequent conversations with her. Defendant corroborated plaintiff’s testimony that she had not seen her father since she was twelve years old. Defendant stated that the main reason she made no effort to contact plaintiff after decedent’s death was that she did not want plaintiff to share in her father’s estate.

Frank Brame, defendant’s attorney, was called as a witness by plaintiff. He testified that he handled most of decedent’s legal matters after decedent arrived in this State in 1951. He represented decedent in his action to have his name changed. He had contacted Mrs. Worthington in April of 1973, and she gave him the last known address she had for plaintiff. It was either at this time, or a short while thereafter, that Mrs. Worthington informed him of plaintiff’s name. She also told him that plaintiff had married Harry West, and that as far as she knew, they were living in Detroit. Brame admitted that he advised defendant not to attempt to locate plaintiff. He also advised defendant that she would have no duty to contact plaintiff, regarding her father’s death, if she did not qualify as executrix of decedent’s will. Brame stated that he told defendant that if plaintiff failed to appear and file suit within five years from the date decedent’s will was filed for probate, then her claim to decedent’s estate would prescribe and defendant would be entitled to the entire estate. Brame testified that he made no effort to contact plaintiff.

The doctrine of contra non valentem has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other ill practices) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiff’s delay in bringing suit is not wilful or the result of his own negligence. Nathan v. Carter, 372 So.2d 560 (La.1979); Cartwright v. Chrysler Corporation, supra; Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916); Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957); Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951). The equitable nature of the circumstances in each individual case has determined the applicability of the doctrine. Nathan v. Carter, supra; Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1 Cir.1970).

There is no doubt on the part of this Court that defendant engaged in acts (amounting to concealment and ill practices) which tended to hinder, impede, and prevent plaintiff from asserting her cause of action. We have already found that plaintiff’s delay in bringing suit was not wilful, nor the result of her own negligence. The equitable nature of the circumstances of this case compel the application of the doctrine of contra non valentem.

For these reasons, it is our opinion that the trial court correctly found that plaintiff had brought her action within the prescriptive period allowed.

APPLICABILITY OF LSA-C.C.P. ARTICLE 2004

Defendant contends that the trial court erred in applying the provisions of LSA-C. C.P. Article 2004 to annul the judgment of possession rendered in her favor. Defendant first argues that the jurisprudence interpreting this article has extended it beyond its intended scope by failing to require a finding of intentional wrongdoing. Defendant cites no authority in support of this argument, and we find no merit in it. Defendant then argues that LSA-C.C.P. Article 2004 is inapplicable to this case because the article is equitable in nature and equity can only be resorted to where there is no express, positive law on the subject. Defendant asserts that LSA-C.C. Article 3542 is express, positive law on the subject matter of this action.

We are unable to agree with defendant’s argument. LSA-C.C.P. Article 2004 provides plaintiff with a separate and distinct cause of action to nullify the judgment of possession unrelated to her action for the reduction of an excessive donation.

A forced heir has a cause of action to annul an ex parte judgment of possession depriving him of his legitime, rendered in a succession proceeding in which his existence is concealed from the court by fraud or ill practice by a party to the succession proceeding, separate and distinct from the heir’s action to reduce an excessive testamentary donation. Schoen v. Burns, 321 So.2d 908 (La.App. 1 Cir.1975); Succession of Hearn, 412 So.2d 692 (La.App. 2 Cir.1982), writ denied, 415 So.2d 215 (La.1982). There is no merit to defendant’s argument.

Finally, defendant argues that the trial court committed manifest error in finding that her actions constituted “ill practices” sufficient to annul the judgment of possession. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980), noted on pages 401 and 402 that:

“Louisiana Code of Civil Procedure, art. 2004, provides that “A final judgment obtained by fraud or ill practices may be annulled.” The action provided by this article is not a substitute for an appeal from a judgment that might be erroneous due to insufficiency of evidence or misinterpretation of substantive law, but, rather, is a separate remedy designed to afford relief against a judgment procured by methods viewed with disdain by the judiciary. Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (La.1949); Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir.1975); Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir.1969), writ ref. 254 La. 858, 227 So.2d 596. In discussing “ill practices” under the Code of Practice, art. 607, the predecessor of La.C.C.P. art. 2004, this Court stated in Alonso v. Bowers, 222 La. 1093, 64 So.2d 443 (La.1953):
“Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article. The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment.”
“This language has been clarified to mean that there need not necessarily be a showing of intentional fraud or wrongdoing for a plaintiff to prevail. Even innocent acts which deprive a party case [sic] in judgment of some legal right can form the basis of this nullity action. Leidig v. Leidig, 187 So.2d 201 (La.App. 3d Cir.1966); Collins v. Collins, 325 So.2d 773 (La.App.2d Cir.1976); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1st Cir.1963), writ den. [245 La. 640] 160 So.2d 228 (La.1964).”

Our analysis of the evidence clearly indicates that it would be inequitable and unconscionable to allow the judgment of possession to stand in view of the practice or procedure which enabled defendant to obtain that judgment. We certainly view the method by which that judgment was procured with disdain. The trial court’s finding, that the actions of defendant in obtaining the judgment of possession constituted ill practices sufficient to annul that judgment, is correct.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . “Art. 2004. Annulment for vices of substance; peremption of action
      A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


text:
    Lottie N. LAMBERT, Plaintiff-Appellant, v. Vernon E. LAMBERT, Defendant-Appellee.
    No. 82-322.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearings Denied Feb. 4, 1983.
    Writ Denied March 25,1983.

      Humphries & Humphries, Guy E. Hum-phries, Jr., Alexandria, for plaintiff-appellant.
    Chris J. Roy, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

Both parties appeal rulings in provisional proceedings arising out of a suit for divorce. At issue are custody of the couple’s sixteen year old son, alimony pendente lite, child support, possession of the family home, and contempt.

Lottie Lambert moved out of the family home and sued Vernon Lambert for a divorce in September, 1981. Several rules to show cause were simultaneously issued returnable on November 6,1981. Those rules were never heard because the parties agreed to a judgment which was signed by consent on the return date following a pretrial conference. The November 6, 1981 judgment (1) gave custody of the couple’s then fifteen year old son to the mother, (2) gave possession of the family home to the father, (3) made Vernon responsible for payment of the community debts, (4) ordered Vernon to pay the first $200 of the monthly utility bills at the community residence, and (5) recognized Lottie’s right of continued access to and use of her beauty shop which was located in the community residence.

On February 15, 1982, litigation resumed with the filing of new rules. Lottie sought alimony, child support, the community residence, and a finding that her husband was in contempt, the latter based on Vernon’s alleged violations of the earlier judgment. Vernon answered and reconvened requesting a change of custody, as well as alimony and child support.

Hearings were held on some of these rules on February 22,1982; the others were heard on March 1, 1982. The trial court rendered judgment April 6, 1982, and signed a formal decree on May 11, giving custody of the child and possession of the family home to the father, granting the father alimony in the amount of $350 a month, declining to order the mother to participate in child support, and declining to hold the father in contempt of court. These are the rulings which the parties aggrieved have appealed.

CUSTODY

Scott, now sixteen, has lived with his father in the family home since the separation occurred. Although the November 6, 1981 judgment awarded permanent custody of the boy to his mother, he continued to live with his father. In the hearing on the rule to change custody, Scott expressed his desire to continue living with the father.

The trial court gave careful consideration to all of the circumstances, including the strong ties that exist between father and son and the father’s proven ability to care for the boy. The court considered the lay testimony (medically unsubstantiated in the record) that Scott may be an epileptic. The trial judge gave due but not controlling weight to Scott’s preference to live with his father. Hebert v. Hebert, 255 So.2d 630 (La.App. 3rd Cir.1971). After considering all of the factors in the record affecting the best interests of the child (La.Civ.Code art. 157), the trial court concluded that custody should be granted to the father. A trial court’s determination as to custody is entitled to great weight. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). We find no error. We affirm the award of custody to the father.

POSSESSION OF THE FAMILY HOME

Under the initial judgment of November 6, 1981 the husband was granted the use and occupancy of the family home, subject to the wife’s unrestricted right to use the beauty shop. The appealed judgment grants to the father the continued use and occupancy of the residence. LSA-R.S. 9:308 requires the trial court to award possession of the family residence to the spouse in accordance with the best interest of the family, after considering the relative economic status of the spouses and the needs of the children. The trial judge considered the fact that the child has been and will continue to live in the residence with his father, and the court also considered the relative economic circumstances of the spouses in making its award of the use of the residence to the husband. We find no error in this ruling.

CONTEMPT

When Lottie went to work at her beauty shop one Tuesday morning, she discovered that the outside door used by her and her customers had been padlocked. After she communicated this fact to her attorney and he in turn notified Vernon’s attorney, the padlock was removed by noon of that day and no further interference of that nature has occurred. There was also evidence that on one or two occasions Vernon parked his pickup in the common driveway used by the residence and the beauty shop customers, thereby annoying the customers. The trial court chose not to hold Vernon in contempt for this conduct but sternly reprimanded him in open court and warned him not to repeat it.

The trial judge found that Vernon’s violations were technical only, from which we infer the finding that his conduct did not rise to the dimension of a willful disobedience of a direct order, which is required by La.C.C.P. art. 224 in order to sustain a holding in contempt. Lambert v. Adams, 347 So.2d 883 (La.App. 3d Cir.1977). Also, proceedings for contempt must be strictly construed, and contempt proceedings should not be resorted to where other remedies are available. Lambert v. Adams, supra. The trial court doubted whether a contempt had occurred and resolved that doubt in favor of the defendant in rule. The court chose to utilize a reprimand and warning, which was apparently effective. Under all the circumstances we agree that the decision not to hold Vernon in contempt was a proper one.

ALIMONY AND CHILD SUPPORT

The judgment of May 11, 1982 (the judgment appealed from) rejected the wife’s claim for alimony pendente lite, rejected the husband’s claim for child support, eliminated the previously imposed obligation of the husband to pay the first $200 toward the utilities on the house as well as his obligation to pay the monthly community bills, and granted the husband alimony pen-dente . lite to be paid by the wife in the amount of $350 per month retroactive to March 1, 1982. In reaching these conclusions the trial court stated and we quote:

“Recent events compel the conclusion that Mrs. Lambert’s request for alimony be denied and that Mr. Lambert’s request be granted. His sole income is from Social Security disability benefits, which comes to him in the form of a check made payable to him and his wife, as joint payees. Apparently the plaintiff has refused to co-sign the checks and defendant’s bank has refused to cash them without her signature, and she has had $195 of the check diverted to her. Thus Vernon Lambert has been completely deprived of income. So as long as this situation continues I must conclude that Vernon E. Lambert does not have sufficient income for his maintenance, and that Lottie N. Lambert has sufficient means to provide for his maintenance. Thus I hereby rule that Vernon E. Lambert is entitled to an award of alimony in the amount of $350 per month, to be paid by Lottie N. Lambert.”

The “recent events” referred to in the above quotation can only have reference to evidence adduced at a hearing on a rule for injunction filed by Vernon on March 15, 1982 and heard on March 22. This action was taken after the rules now on appeal had been taken under advisement. The hearings on the rules to show cause forming the subject of this appeal were completed and taken under advisement on March 1. It was improper for the trial court to have used evidence taken in subsequent proceedings to decide matters already taken under advisement in earlier proceedings.

Had the trial court chosen to do so after taking the rules under advisement on March 1, it could have ordered a new trial on its own motion. La.C.C.P. Article 1971. Or it could have reopened hearings on the rules and heard additional testimony. La.C. C.P. Articles 1631 and 1632. By either means, further evidence could properly have been considered. As it turned out, however, the use of subsequent injunction proceedings, procedurally unrelated to the rules that had been taken under advisement, as evidence bearing on those rules, was a violation of basic due process since it was done without notice to the parties. Lottie, as defendant in rule in the later injunction proceeding, was entitled to know that the evidence taken at the hearing conducted therein would be used by the court either as a partial new trial on the earlier rules, or as a reopening of the hearing on the rules. The record contains nothing to indicate that the parties were made aware that the injunction hearing evidence would be so used.

We find it necessary, therefore, to amend the judgment respecting alimony by considering only the evidence properly adduced on the subject. Since the entire record of the rules for alimony is before us, we will consider that evidence and render judgment accordingly.

The evidence shows that Vernon was receiving $853.30 in Social Security benefits because of his total disability from a back injury. After they stopped living together, this was reduced by $195, representing the portion paid for the benefit of Lottie, and by a like additional amount representing the portion paid for the benefit of the dependent, Scott. However, the judgment granting custody of Scott to Vernon will restore that $195 and he will be entitled to receive $658.30.

The evidence also shows that Lottie makes at least $200 a week out of her beauty shop business, but out of this she must pay the expenses of its operation. She must also maintain herself in a separate apartment. The husband is paying mortgage notes on the residence totaling $244 a month. As evidenced by affidavits filed into the record of their respective expenses, it appears that their needs are approximately the same. We believe that a proper balance can be struck considering their relative incomes and needs, as well as the obligation of child support which each owes, by ordering the husband to continue paying the mortgage notes on the residence and the utilities there (which includes the beauty shop operation) and that the wife pay to the husband $200 a month, apportioned as $100 a month for child support for Scott and $100 a month for alimony.

For the reasons assigned, the judgment of the trial court is affirmed insofar as it awards custody of the minor child to the husband and possession of the family home to him. The judgment denying the rule for contempt against the husband is likewise affirmed. The judgment rejecting the rule for alimony by the wife is affirmed. The judgment rejecting the husband’s claim for child support is reversed. The judgment awarding the husband $350 for alimony against the wife is reversed. Judgment is rendered ordering the wife to pay the husband $100 a month as child support. The judgment ordering the wife to pay the husband $350 a month alimony is amended to reduce the alimony pendente lite to the sum of $100 a month, and rendered.

All costs of appeal are to be borne equally by the parties.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . Actually, the injunction hearing evidence did not establish whether or not Vernon was getting his Social Security checks. All that took place at that hearing was the interrogation by one attorney of opposing counsel under oath. Neither party testified. There was no evidence that Lottie had refused to co-sign the Social Security checks or that the bank had refused to accept them for deposit. At best, the testimony supports only a weak inference that such had occurred. To demonstrate how uncertain this question remains even to this day (as far as the record is concerned), we mention that in oral arguments on appeal, one attorney declared that Vernon has never missed a single check, while the other as vehemently asserted that he has been totally cut off.


author: CULPEPPER, Judge.

text:
    Dennis C. GILCREASE, Plaintiff-Appellee, v. J.A. JONES CONSTRUCTION COMPANY, Defendant-Appellant.
    No. 82-333.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant-appellant.

      Steven W. Harris, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

Dennis C. Gilerease sues his former employer, J.A. Jones Construction Company, for worker’s compensation benefits for total and permanent disability, plus penalties and attorney’s fees. The district court found that the claimant is totally and permanently disabled and awarded benefits during such disability, plus any unpaid medical and travel expenses. Further finding that the defendant was arbitrary and capricious in refusing to pay, the trial court also awarded penalties and attorney’s fees pursuant to LSA-R.S. 22:658. Defendant appeals this judgment and raises these questions: (1) Did the trial court err in finding the plaintiff totally and permanently disabled? (2) Did the trial court err in finding the defendant arbitrary and capricious? (3) Did the trial court award an excessive amount of attorney’s fees?

The plaintiff-appellee answered the appeal seeking an increase in the amount of attorney’s fees for services rendered on appeal.

FACTS

The record shows that plaintiff was employed as a laborer for defendant on June 22, 1981, and was within the course and scope of his employment when he fell from a ladder and injured his back. There is no serious dispute as to these facts.

His condition was initially diagnosed as a bruise by Dr. Brian, a general practitioner, and his diagnosis was concurred with by Dr. Dyer, the plaintiff’s family physician. Dr. Dyer released Mr. Gilerease to return to light duty, and he attempted to continue working but was unable to cope with his duties at the construction site as a result of the pain from his injury.

No compensation benefits were paid by his employer’s compensation insurer, so as a matter of economic necessity, Mr. Gilerease took a job at Surf side Pools from July 24, 1981 through August 28, 1981, keeping his back injury secret. He quit this job because Surfside was beginning to lay workers off for the slack season and because his back was bothering him more each day he worked. He also worked one day for Country Pride Foods in Natchitoches, but he stated he found the pain too much for him to continue working.

In November, since his back was getting worse rather than better, the claimant was examined by orthopedic specialist, Dr. Banks. The examination revealed that he has a retrolisthesis of the L5 vertebra on the SI vertebra. Dr. Banks described this as a relative backward displacement of the body of the L5 on the SI. The symptoms of this condition are localized back pain, pain on hyperextension, i.e., lifting ones arms up above ones head, and occasionally sciatic pain due to irritation of the first sacral nerve root. Mr. Gilcrease’s symptoms were found to be consistent with this diagnosis. Dr. Banks testified that any lifting or twisting motion would produce pain.

Conservative treatment was not successful, so Dr. Banks recommended surgery for spinal fusion of the joint. The claimant’s surgery was scheduled to be performed 2Vz weeks after the trial of this matter. It will be four to six months from the surgery before the success of the fusion can be evaluated, and if the surgery is successful, Mr. Gilerease may be able to return to manual labor eight months after the surgery. Dr. Banks testified there is a 92% success rate with this type fusion procedure. He estimates that with a successful fusion Mr. Gilerease would have no more than a 15% disability of the body as a whole.

Dr. Banks stated that at the time of trial the plaintiff was restricted from lifting anything weighing over 20 pounds or lifting anything above mid-chest level. Nor should he operate vehicles or equipment that would jar his back.

This suit was filed on December 9, 1981. No compensation benefits were paid until February 5, 1982, when the defendant’s compensation insurer paid for the period from the date of the accident to the date Dr. Dyer released Mr. Gilcrease to return to light duty. On March 30, 1982, benefits were paid to cover the period from November 25,1981 through April 6, 1982 and payments were maintained up to the time of trial.

The trial court held plaintiff entitled to benefits commencing with the date of the accident, June 22,1981, and continuing during the duration of permanent and total disability, with defendant given credit for the prior weekly benefits already paid. He further awarded penalties and attorney’s fees for arbitrary and capricious refusal to pay.

Defendant contends that Mr. Gilcrease should not have received benefits for total and permanent disability, and that the refusal to pay was not arbitrary and capricious.

DISABILITY

The standards for determining whether a claimant is entitled to compensation benefits for total disability were set forth by the Louisiana Supreme Court in Lattin v. Hica Corporation, 395 So.2d 690 (La.1981):

“A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability, (citations omitted)
* * * % *
“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.”

The Supreme Court further held that if a claimant’s pain appreciably limits the types of work available to him and diminishes his ability to compete in the labor market, he must be awarded total disability benefits, unless there is proof that jobs are realistically available to him. On the other hand, if it is proven that he has the mental capacity to perform other jobs which are available, the worker should be considered partially disabled.

The plaintiff in the instant case is a 23-year-old man who quit high school at age 16. He was in the ninth grade at the time, as a result of previous failures. His work history consists entirely of jobs in the field of manual labor such as the one on which he was injured. Both the lay and medical testimony established that plaintiff is now disabled from performing such work because of the substantial pain it causes.

Defendant on the other hand failed to show that other jobs involving light physical duties are realistically available to him. The defendant’s vocational expert, Dr. Hearn, testified that he thought the plaintiff could perform various sedentary jobs such as light delivery, engine repair work, light janitorial or maintenance work or even a cashier’s job. This testimony was based strictly on Dr. Hearn’s survey of employment in the area, and his review of the depositions of Mr. Gilcrease and Dr. Banks. He conducted no personal interview with the plaintiff, nor did he attempt to determine the mental capacity or educational status of the claimant.

The trial court accorded little weight to Dr. Hearn’s opinion, and we agree. Furthermore, it is evident from the record that Mr. Gilcrease has a limited mental capacity as well as minimal education. The claimant testified that he is only able to read and write a “little bit,” and his wife testified that she handles the household finances because her husband has difficulty remembering details such as dates, amounts and names.

Dr. Banks testified that plaintiff could perform many of the duties involved in light duty jobs, but stated the claimant would have limitations in each one, so that he could not perform every duty which would be required of him in that position.

We conclude defendant failed to sustain its burden of proving there are other jobs realistically available to this claimant. We therefore hold that the trial court was not clearly wrong in finding him totally and permanently disabled.

PENALTIES AND ATTORNEY’S FEES

Defendant argues that the trial court erred in assessing statutory penalties and attorney’s fees against it. The evidence shows that in denying benefits defendant relied solely on the medical report by Dr. Dyer releasing Mr. Gilcrease from active medical treatment. The employer was well aware of plaintiff’s accident and also of his difficulties in performing his duties when he returned to work approximately a week after his injury. The evidence is unrebut-ted that his employment was terminated as a result of this inability to do his job. When Dr. Dyer advised the employer that plaintiff could return to light duty, but was still under a doctor’s care, Gilcrease was advised that no light duty was available, and compensation benefits were refused. Even after being informed of plaintiff’s disability based on Dr. Banks’ examination in November, 1981, the employer’s insurer continued to refuse benefits. Plaintiff filed this suit on December 9, 1981. No benefits were paid until February 5, 1982, when defendant paid weekly benefits for the first two weeks after the injury, but did not pay all medical bills due at that time.

Under these circumstances, we find the trial court was not clearly wrong in finding the defendant arbitrary and capricious in its failure to pay, and in awarding penalties and attorney’s fees pursuant to LSA-R.S. 22:658.

Attorney’s fees were awarded in the amount of $3500. The defendant contends this award is excessive. The plaintiff has answered the appeal to seek an increase in this amount for services on appeal.

Under the circumstances of this case, we do not feel that the award was an abuse of the trial court’s discretion. This award will therefore be affirmed. See Moreau v. Houston General Insurance Company, 386 So.2d 151 (La.App. 3rd Cir.1980); Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979), writ refused 379 So.2d 1102 (La.1980).

For the services rendered in defending this appeal we grant an additional award of $500 for attorney’s fees.

For the above and foregoing reasons, the judgment of the trial court is amended to award an additional $500 in attorney’s fees, and is in all other respects affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    Joseph O. CHAPMAN, Plaintiff-Appellant, v. GULF INSURANCE COMPANY, et al, Defendants-Appellees.
    No. 82-334.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writs Denied March 18,1983.

      Young & Burson, Kent Aguillard, Eunice, for plaintiff-appellant.
    Onebane & Associates Michael G. Durand, Lafayette, Guglielmo & Lopez, James C. Lopez, Opelousas, for defendants-appellees.
    Pugh & Boudreaux, Charles Boudreaux, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

This is an appeal from a judgment rendered in three related cases consolidated for trial in the court below.

Joseph 0. Chapman, individually, and together with his wife, Carolyn Miller Chapman, (plaintiffs) brought separate tort actions to recover damages for personal injuries suffered by them, when their automobile was struck from the rear by a large truck, and to recover property damages for the total destruction of their automobile.

Named defendants in both actions are: Ziegler-Trahan Dairy Products (Ziegler), the owner of the truck that struck plaintiffs; Gulf Insurance Company (Gulf), Ziegler’s automobile liability insurer; Bradley Manual d/b/a Bradley Manuel’s Auto Repair (Manuel), the employer of Clifton J. Lartigue (Lartigue), the driver of the truck; and, Commercial Union Insurance Company (Commercial), Manuel’s general liability insurer.

The third action was brought by the Travelers Insurance Company (Travelers) to recover, by way of subrogation, $1,144.50 it paid plaintiffs pursuant to the terms of an insurance policy providing automobile collision coverage. Named defendants to Travelers’ action are Lartigue, Manuel, Ziegler, and Gulf.

Plaintiffs signed a “RELEASE, ASSIGNMENT AND HOLD HARMLESS AGREEMENT”, releasing Manuel, Lartigue, and Commercial from any liability to plaintiffs arising out of the accident. Plaintiffs specifically reserved their right to proceed against Ziegler and Gulf on all causes of action they might have against them as a result of the accident.

Numerous third party demands were filed by defendants in all three actions. Pursuant to a motion filed by Manuel and Commercial, the trial court ordered their third party demand brought against Stanley Prater (Prater), an employee of Ziegler, dismissed without prejudice, reserving their rights against all other third party defendants named by them.

The trial court, after trial on the merits, rendered judgment in favor of defendants, Ziegler and Gulf, and against plaintiffs and third party plaintiffs, Joseph Chapman, Carolyn Chapman, Manuel, Lartigue, Commercial, and Travelers, rejecting their demands against these defendants. The trial court further rendered judgment in favor of Travelers and against Manuel and La-rtigue, ordering them to pay Travelers $1,144.50.

Plaintiffs appeal from the trial court’s judgment rejecting their demands against Ziegler and Gulf, and raise the following issues:

(1) Whether the trial court erred in finding that plaintiffs failed to prove, by a preponderance of the evidence, that the brakes on the truck owned by Ziegler were defective; and, if so,
(2) Whether said defect was a cause of the accident;
(3) Whether the trial court erred in finding that the sole cause of the accident was the negligence of Lartigue;
(4) Whether Manuel is liable to them, if Lartigue was not negligent, under the provisions of LSA-C.C. Article 2317;
(5) Whether Ziegler was negligent, which negligence constituted a cause of their injuries, in inspecting and maintaining the truck which struck them;
(6) Whether Ziegler was negligent in allegedly failing to warn Bradley Manuel or Lartigue of prior incidents when the brakes on the truck failed to operate properly; and,
(7) Quantum.

FACTS

These actions arose out of an accident that occurred on June 5, 1979, on Louisiana Highway 29 (La. 29), immediately outside the Eunice City Limits. Prater had been assigned two trucks by Ziegler to use in making deliveries of its dairy products. One of these was a 1971 International dual wheel, single-axle truck (the truck). Ziegler had its headquarters in Crowley. However, Prater was allowed to keep both trucks at his home in Eunice and was responsible for their maintenance. He called Manuel on the day in question and requested that someone be sent to his home to pick up the International truck for repairs. Manuel sent Lartigue to pick up the truck.

Lartigue arrived at Prater’s home that afternoon to drive the truck to Manuel’s repair shop, which was located in the vicinity of plaintiffs,’ home on La. 29. Meanwhile, Mrs. Chapman had picked up Mr. Chapman at work. Mr. Chapman was driving, and plaintiffs were traveling east on La. 29, when they approached the driveway to their home. Mr. Chapman activated his left-turn signal and stopped in the eastbound lane, waiting for another automobile to back out of their driveway. At the same time, Lartigue was traveling east on La. 29, behind the Chapmans, when he failed to stop in time to avoid a collision with their vehicle. Mr. Chapman was slightly injured in the collision, while Mrs. Chapman was more seriously injured and hospitalized.

ALLEGED DEFECTIVE BRAKES ON ZIEGLER’S TRUCK

As a preliminary matter, plaintiffs, in their briefs filed in this Court, asked that we take judicial notice of matters outside the record. Specifically, they request that we take judicial notice of what the trial court allegedly told plaintiffs’ counsel during arguments on their motion for a new trial. Plaintiffs admit that there is no transcript of these arguments in the record. Under these circumstances, we cannot take judicial notice of these matters.

The trial court, in its reasons for judgment, stated:

“Having considered the evidence and briefs of counsel, it is my judgment that plaintiffs have failed to show by [a] preponderance of the evidence that the accident under consideration was caused in whole or in part because of brake failure of the Ziegler-Trahan Dairy Products truck. In my opinion, the sole cause of the accident and the resultant injuries and damages suffered was the negligence of Clifton Lartigue, which consisted,
among other things, of failing to keep a proper lookout and proper control over the vehicle he was driving at the time of the accident.”

Plaintiffs state that it is somewhat difficult to ascertain, from a reading of the reasons for judgment, whether the trial court found that they had not proven that the brakes on the truck failed, or whether it found that brake failure was proven but not shown to be a cause of the accident.

From our analysis of the facts set out below, based on the record, it is our opinion that the trial court found that plaintiffs had not proven that the brakes on the truck failed. We agree with that finding.

Lartigue testifiéd that after he began driving toward Manuel’s shop, he had to apply the truck’s brakes three or four times, and each time they functioned properly. At the trial on the merits, he testified that when he went to apply the brakes upon seeing plaintiffs’ stopped automobile, the pedal went all the way to the floor. He then let off on the pedal and pressed it again. This second time, the pedal went down a short distance and then began to come back up despite the fact that he was pushing as hard as possible against it. He stated that he had no braking power at this time. However, at his deposition given two months after the accident, Lartigue gave a somewhat different version of what happened. He there stated that, when he went to apply the brakes, he pressed on the pedal, which went down a little, but it then began pushing back up against his foot. It did not go to the floor at all. Lartigue attempted to explain this discrepancy by stating that he was nervous when his deposition was taken. However, Prater testified that Lar-tigue had given him the same version of how the brakes allegedly malfunctioned, as he had given in his deposition, when he spoke to Lartigue after the accident.

Richard L. Williams, the Louisiana State Policeman who investigated the accident, testified that he tested the brakes on the truck after arriving at the scene. He stated that he pushed on the brake pedal two or three times, and got no positive response from the brakes. The pedal went to the floor each time. He couldn’t remember if the truck’s engine was running at this time, ard he had no knowledge as to whether this would affect the truck’s braking system in any manner.

Bradley Manuel (Bradley) testified that he drove the truck to his shop after the accident and the brakes worked fine, although he drove at a slow rate of speed as his shop was only a block away. Bradley did some work on the truck’s brakes after the accident. He had to replace some parts on the right, rear wheel’s brakes, i.e., the support. The pin holding the support was still intact, though loose. The support is a metal bar that ends in two circular pieces of metal, with holes in the middle of them, and a space in between the two circular pieces. The pin holding the support fits through the two circular pieces and only the outer circular piece was broken. Bradley testified that the pin was partly out and had come all the way out of the inner circular piece. He had no idea as to whether this could cause the brakes to fail, but noted once again tht the brakes had worked fine after the accident. He stated that the brake shoes were in their proper place, the brake drum looked okay, the brake cylinders looked fine, and there were no leaks in the brake line, when he examined the brakes after the accident. The brake system was full of brake fluid at this time.

Robert C. Day, accepted as an expert in the mechanics and functioning of vacuum boosted hydraulic brake systems under both operating and non-operating conditions, examined the braking system on the truck. He testified that all parts of the braking system were of the proper size, etc., as recommended by the manufacturer. He explained in detail the functioning of the brake system on the truck. He stated that it was impossible for the booster system to malfunction to the point where it would cause the brake pedal on the truck to be incapable of being depressed for any period of time. Failure of the booster system would simply cause the braking system to revert to a standard operating mode, i.e., the truck would have no power brakes, but would have standard brakes. Day stated that the only way that the brake pedal would go all the way to the floor is if the hydraulic fluid leaked out of the system. If this happened, it would then be impossible for the braking system to return to normal. He described the testimony given by La-rtigue, Williams, and Bradley as being totally inconsistent. He opined that it was' impossible to have complete hydraulic failure, allowing the pedal to go all the way to the floor, and then have resistance to the movement of the pedal the very next moment.

Day testified that he had never heard of a malfunction in a truck braking system occurring in a manner similar to that as testified to by the above mentioned witnesses. He stated that a broken support, as found by Bradley Manuel, would have no effect on the ability of the brakes to stop the forward motion of the truck. It would only affect the ability of the braking system to stop the truck in reverse.

Plaintiffs presented two mechanics as witnesses, who were accepted as experts in that field. They testified that it was possible for brake failure on trucks to occur as Lartigue had testified to, and that they had experienced such brake failure on a number of occasions. However, neither mechanic was able to explain just how this could occur, nor why it would occur. Bradley Manuel also testified that he had experienced this same type of brake failure, although he did state that he had never been in a situation where he was unable to depress the brake pedal at all. In fact, he testified that it was impossible to have a situation where the brake pedal could not be depressed at all, unless it was jammed against the floorboard or something else. It is obvious that the trial court rejected the testimony of these witnesses, and so do we.

Plaintiffs argue that brake failure on trucks is a fairly common occurrence. If such were the case, the resultant liability imposed on the manufacturers and sellers of trucks would certainly force them to change to some other type of braking system. Yet, the uncontradicted testimony shows that all trucks are equipped with braking systems virtually identical to that on the truck in question.

In summary, the trial court was presented with a voluminous amount of conflicting evidence. Its decision was based on its own credibility evaluations of the various witnesses. It is our opinion that the trial court’s finding, that plaintiffs failed to prove any failure of the truck’s braking system, is not clearly wrong. Thus, there is no need for us to address the issue of whether any causal relationship exists between this alleged defect and the injuries suffered by plaintiffs.

There is also no need for this Court to address the issues of whether the trial court erred in finding that the sole cause of the accident was the negligence of Lartigue, and whether his employer may still be held liable to plaintiffs regardless of a finding of negligence on the part of Lartigue. Plaintiffs’ arguments concerning these issues consist of nothing more than speculation. They make the unsubstantiated assumption that the trial court failed to hold Ziegler and Gulf strictly liable to them because it found that these defendants had proved the affirmative defense of fault of a third party, i.e., the negligence of Lartigue. However, a review of the trial court’s reasons for judgment clearly indicates that it made no such finding. It certainly had no reason to do so, having found that plaintiffs failed to prove that the truck’s braking system had failed.

Plaintiffs’ argument on the issue of whether Lartigue’s employer, Manuel, should be held liable to plaintiffs, under the provisions of LSA-C.C. Article 2317, regardless of any finding of negligence on Lartigue’s part, consisted of the following. Plaintiffs contend that Manuel should be exonerated from any liability to them for two reasons. First, the trial court committed manifest error in finding that La-rtigue’s negligence was the sole cause of the accident. We have already mentioned that plaintiffs made the unsubstantiated assumption that the trial court failed to hold Ziegler and Gulf strictly liable to them because it found that these defendants had proved the affirmative defense of fault of a third party. Secondly, plaintiffs argue that the trial court committed manifest error in finding Ziegler to be free from fault. We have already determined that the trial court’s finding, that plaintiffs failed to prove any failure of the truck’s braking system, is not clearly wrong. For the reasons expressed in the following portion of our opinion, we find that plaintiffs failed to prove that any of the alleged negligent conduct of Ziegler was a cause-in-fact of the injuries suffered by them. Thus, there is no merit to plaintiffs’ argument that Lartigue has proven the affirmative defense of fault of a third party, i.e., the alleged negligence of Ziegler.

ZIEGLER’S ALLEGED NEGLIGENCE

Plaintiffs contend that the trial court erred in failing to find that the alleged negligence of Ziegler was the sole, proximate cause of the accident. They allege that Ziegler failed to warn Bradley Manuel or Lartigue that the brakes on the truck were faulty. They further allege that Ziegler failed to properly inspect and maintain the truck. Plaintiffs’ claim is based on the provisions of LSA-C.C. Articles 2315 and 2316.

The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by plaintiffs and Ziegler’s alleged negligent conduct. Thus, if plaintiffs can show that they probably would not have suffered the injuries complained of but for Ziegler’s conduct, they have carried their burden of proof relative to cause-in-fact. Head v. St. Paul Fire & Marine Insurance Co., 408 So.2d 1174 (La. App. 3 Cir.1982), writ denied, 412 So.2d 99 (La.1982); Wattigny v. Lambert, 408 So.2d 1126 (La.App 3 Cir.1981), writ denied, 410 So.2d 760 (La.1981); Shelton v. Aetna Casualty & Surety Co. 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

Plaintiffs first allege that Ziegler failed to warn Bradley Manuel or Lartigue that the brakes on the truck were faulty. Prater was employed by Ziegler at the time of the accident, and he regularly drove the truck for Ziegler. He had contacted Manuel’s and asked that the truck be picked up so that the gauges used to monitor the performance of the engine, and a motor support, could be repaired. Prater had been using the truck for approximately a month. He testified that there had been one instance where the brakes on the truck had failed to stop it as quickly as they normally did. Apparently, as he was approaching a stop sign, he applied the brakes to the point where they should have locked the wheels on the truck but didn’t. However, the brakes did stop the truck. He stated that the incident did not worry him as the truck was fully loaded at the time and he believed this to be the cause of the problem. Further, the brakes worked perfectly every other time he used them. He admitted that he had not told Bradley Manuel or Lartigue anything about this incident, but didn’t think there was reason for any great concern. He did not mention this incident to anyone connected with Ziegler prior to the accident. Prater testified that he had never experienced a complete brake failure with the truck, nor had he ever experienced any brake malfunction similar to that testified to by Lartigue. Prater did state that his route supervisor, Larry Me-nard, had told him of an incident when he encountered a situation similar to that experienced by Prater with the truck’s brakes. However, Menard was also able to stop the truck by use of the brakes.

Robert Day testified that there were many things that could cause “brake failure” in the nature of the two incidents testified to by Prater. These included: brake drums that are too large; brake linings that are too hard; brake linings contaminated with grease, water, oil, etc.; the weight of the load being carried; and, rapidly stopping a fully loaded truck a number of times, within a short period of time, causing the brake drums to expand from the heat generated and the brake linings to become glazed. He was of the opinion that the two incidents of “brake failure” were of a temporary, operational nature, i.e., the brake linings had become contaminated, the brake system had become overheated, or the truck was fully loaded. He did not believe that they were caused by something more serious, such as oversized brake drums or brake linings that were too hard. He based his opinion on the fact that the brakes had functioned properly after each of these incidents, which they would not have done had the wrong size parts, etc., been the cause of the problem. In such a case, the brakes would have continued to malfunction. He likened the two incidents to that experienced by motorists when passing through a puddle of water, i.e., a temporary loss of braking power until the water evaporates and the braking system returns to its normal operating condition.

We find that plaintiffs have failed to prove that the brakes on the truck were faulty. Under these facts and circumstances, Ziegler could not warn Bradley Manuel or Lartigue of a condition that did not exist.

Plaintiffs next allege that Ziegler failed to properly inspect and maintain the truck. Leo Ziegler, a part owner of Ziegler, testified that the truck was kept at Prater’s house. He stated that all of Ziegler’s truck drivers were instructed to perform a routine daily inspection of their trucks. As long as there were no problems with a truck, it was simply brought to a service station for routine maintenance (oil change, grease job, state inspection, etc.). He did note that Manuel had adjusted the brakes on the truck approximately one month before the accident.

Prater testified that he was responsible for maintaining the truck. He stated that he had been told by Ziegler to periodically inspect his truck and that he did so on a daily basis. Ziegler paid for all repair work performed on the truck. Prater testified that one of the reasons he quit working for Ziegler was that he was experiencing a lot of mechanical problems with the truck. It was an inconvenience to him and his customers to have the truck out of service for repairs. However, he further stated that whenever he brought the truck to Manuel for repairs, he always told the mechanics to fix whatever needed repairing as it was to his advantage to have the truck in proper operating condition. He was also furnished a smaller truck by Ziegler to use whenever the truck was being repaired, but this required more time for him to accomplish the same amount of work. Prater felt that the truck was safe for its intended uses.

We find that plaintiffs have not proven that Ziegler failed to properly maintain and inspect the truck. The evidence shows that the truck was inspected at regular intervals. Further, all of Ziegler’s drivers were instructed to perform routine inspections of their trucks and to bring the trucks in for repairs whenever they were needed. While these findings might be more appropriate in making a determination of whether Ziegler breached any duty it owed to plaintiffs to inspect and maintain its trucks properly, we see no need to reach that point in our analysis. Plaintiffs have not proven that improper inspection and maintenance procedures on Ziegler’s part were a cause-in-fact of their injuries. Based on these findings, there is no need to make any determination as to quantum.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . These cases are: Joseph O. Chapman v. Gulf Insurance Co., et al, Docket # 78,533-1, 27th Judicial District Court, Parish of St. Landry, State of La.; Joseph O. Chapman, et ux. v. Gulf Ins. Co., et al.; Docket # 79-243-1, 27th Judicial District Court, Parish of St. Landry, State of La.; and, The Travelers Insurance Co., et al. v. The Ziegler’s Dairy Products, et al., Docket # 80,979-2, 27th Judicial District Court, Parish of St. Landry, State of Louisiana.
      On appeal, these cases were assigned the following docket numbers by this Court: Joseph O. Chapman v. Gulf Ins. Co., et al., No. 82-334; Chapman, et ux. v. Gulf Ins. Co., et al., 425 So.2d 284; and, The Travelers Ins. Co., et al. v. The Ziegler’s Dairy Products, et al., No. 82-334 and 82-335. There was no appeal taken in The Travelers v. Ziegler suit and no judgment will be rendered therein.

      . Carolyn Miller Chapman testified, at trial on the merits, that she and her husband, Joseph O. Chapman, were judicially separated.

      . None of the third party plaintiffs have appealed from the trial court’s judgment rejecting their third party demands against Ziegler and Gulf. Thus, that portion of the trial court’s judgment is final.

      . Manuel and Lartigue have taken no appeal from this portion of the trial court’s judgment, and it is now final.

      . Prater was subpoenaed to appear at the trial on the merits. However, the subpoena was returned with the notation that Prater was unable to be located. By stipulation of the parties, a deposition given by Prater at an earlier date was introduced in evidence for all purposes.


text:
    Joseph O. CHAPMAN, et ux., Plaintiffs-Appellants, v. GULF INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 82-335.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writs Denied March 18,1983.
    Young & Burson, Kent Aguillard, Eunice, for plaintiff-appellant.
    Onebane & Associates, Michael G. Du-rand, Lafayette, Guglielmo & Lopez, James C. Lopez, Opelousas, for defendants-appel-lees.
    Pugh & Boudreaux, Charles Boudreaux, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

For the reasons assigned in the opinion handed down this date in Chapman v. Gulf Insurance Company, et al., 425 So.2d 277 (La.App. 3 Cir.1982), (our docket number 82-334), the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.