author: LOTTINGER, Judge.

text:
    NATIONAL AMERICAN BANK OF NEW ORLEANS v. Mildred PURVIS, Wife of/and John W. Purvis et al.
    No. 14405.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.

      Elliott W. Atkinson, Jr., Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff-appellee.
    Kenneth W. Ford, Morgan City, for defendant and third party plaintiff.
    Robert L. Morris, Houma, for Statewide Trailer.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellee, National American Bank of New Orleans, has moved this court to dismiss the suspensive appeal of appellant, third party defendant — Statewide Trailer Sales, Inc., because the suspensive appeal bond was not filed timely.

Mover argues that judgment was rendered on October 9, 1980, the delays for filing a motion for new trial expired on October 17, 1980, and thereafter, the time required to file a bond for perfection of a suspensive appeal expired on November 17. In as much as the suspensive appeal bond was not filed until November 19, 1980, plaintiff-appellee argues that the bond is untimely, and the suspensive appeal should be dismissed citing La.C.C.P. arts. 1974 and 2123.

It is true that judgment was rendered and signed on October 9,1980, but the delay for applying for a new trial did not expire until October 20, 1980. La.C.C.P. art. 1974 provides a delay of 7 days, exclusive of legal holidays, within which to apply for a new trial. The delay commences to run on the day after the judgment is signed. In counting the 7 days Saturdays and Sundays are legal holidays and are not counted. See La.R.S. 1:55 and La.C.C.P. art. 5059. Therefore the delay for applying for a new trial expired on October 20, 1980.

The time delay for applying for and furnishing bond for a suspensive appeal is 30 days. La.C.C.P. art. 2123. Accordingly the last day for taking a suspensive appeal and furnishing bond was November 19, 1980.

The appeal order was signed on November 18, and the bond was filed on November 19, 1980, and both were timely.

Therefore, for the above and foregoing reasons, the motion to dismiss the suspen-sive appeal is denied at mover’s costs.

MOTION DENIED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    NATIONAL AMERICAN BANK OF NEW ORLEANS v. Mildred Purvis, Wife of/and John W. PURVIS, et al.
    No. 14405.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Elliott W. Atkinson, Jr., Maughan, Atkinson & Martin, Ltd., Baton Rouge, for plaintiff-appellee.
    Kenneth W. Ford, Morgan City, for defendant and third party plaintiff.
    Robert L. Morris, Houma, for Statewide Trailer.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

This matter arises from a purchase of a 1972 Summitt mobile home by Mildred and John W. Purvis from appellant, Statewide Trailer Sales, Inc. In connection with said sale, the promissory note evidencing the mortgage loan for the sale price in the amount of $16,938.00 was acquired by National American Bank of New Orleans. The petition of National American Bank states that the note and chattel mortgage were stolen from the automobile of its attorney.

On August 15, 1973, a redhibition suit was filed against Statewide Trailer Sales, Inc. by Mildred and John W. Purvis, the buyers. On appeal from the judgment ordering rescission of the sale, this court, in its per curiam opinion denying Statewide’s application for rehearing, ordered the following:

.(1) that the judgment of the trial court in favor of Appellants John W. and Mildred Purvis and against defendant Statewide Trailer Sales, Inc., rescinding the sale of the trailer home involved herein, be and the same is hereby affirmed; (2) that Appellants deliver custody, possession and ownership of said trailer home to Appellee; (3) that there be judgment herein in favor of Appellants and against Appellee in the sum of all payments by Appellants as to both principal and interest on the note in question, together with legal interest thereon from date of judicial demand, until paid; (4) that Appellee, Statewide Trailer Sales, Inc., hold Appellants harmless for the amount of the unpaid installments due on the note in question in the event of suit thereon by the holder; that the judgment in favor of Appellants be and the same is subject to a credit in favor of Appellee in the sum of $60.00 (per month) during which Appellants have occupied, or shall continue to occupy the trailer in question, together with legal interest on each such monthly credit from date of judicial demand, until paid; * * * ”

The court also stated that “(I)t was our intention to award plaintiff in this action recovery of all ... such' sums plaintiff might be compelled to pay the note holder subsequent to institution of this litigation.* * *”

In furtherance of the Court of Appeal judgment, a consent judgment was subsequently entered into between Statewide and Mildred and John Purvis with Statewide Trailer Sales, Inc. agreeing to remove Mr. and Mrs. Purvis from “... any and all liability and responsibility and obligation in, on, or relating to that certain promissory note...” in question.

National American Bank of New Orleans, as holder of the promissory note, filed the present suit against Mildred Purvis wife of/and John W. Purvis, makers of the note, for failing to pay the installments due on the note. Mildred and John Purvis answered the suit and, as third party plaintiffs, sought recovery from Statewide Trailer Sales, Inc. on the basis of the hold harmless clause contained in the consent judgment rendered by the Thirty-Second Judicial District Court in Terrebonne Parish.

The third party demand was subsequently served on the third party defendant on December 4, 1978. No responsive pleading was filed and a preliminary judgment of default was entered in favor of Mildred and John Purvis and against Statewide Trailer Sales, Inc. on the third party petition on December 21, 1978.

Statewide Trailer Sales, Inc. filed its answer on December 26, 1978 (25 days after the filing of the third party petition; 22 days after service; and 5 days after the entering of the preliminary default judgment), alleging that at no time did Mr. and Mrs. Purvis return the trailer to it and that they should be required to do so, or to pay to Statewide the value thereof.

On October 16, 1979, Mildred and John Purvis moved to be permitted to confirm the default judgment taken on the 21st of December and to strike the answer filed by Statewide since, under the provisions of La. C.C.P. art. 1035 , the filing of Statewide’s answer was untimely. The trial court agreed and ordered the answer to the third party petition stricken from the records and authorized Mr. and Mrs. Purvis to confirm the judgment of default taken against Statewide.

On September 26, 1980, the trial court rendered judgment in favor of National American Bank of New Orleans against Mr. and Mrs. Purvis in the amount of $9,926.34, together with attorney fees and interest. Mr. and Mrs. Purvis also obtained a judgment confirming the judgment of default against Statewide Trailer Sales, Inc. in the amount of $9,926.34, together with attorney fees and interest. It is this September 26th judgment, relating to the third party demand, which Statewide Trailer Sales, Inc. appeals.

Statewide Trailer Sales, Inc. contends that the judgment against it should be modified to include the set-off credit provided for in the Court of Appeal ruling in Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976), as amended by Per Curiam Opinion dated November 15, 1976; rehearing denied November 15, 1976.

Mildred and John Purvis did not answer the instant appeal. National American Bank of New Orleans submitted a brief and contends that the hold harmless agreement renders Statewide Trailer Sales, Inc. liable to National American Bank and that any setoff between Purvis and Statewide should not be allowed for lack of evidence introduced into the record.

In Cvitanovich v. Sorli, 347 So.2d 1204 (La.App. 1st Cir. 1977), this court quoted our Supreme Court in the case of Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972), as follows:

“ ‘In order to obtain reversal of a default judgment appealed from, .. . defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. When the judgment recites, ... that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against the defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970); Massey v. Consumer’s Ice Co. of Shreveport, 223 La. 731, 66 So.2d 789 (1953); Nugent v. Stark, 34 La.Ann. 628 (1882).
“ ‘The presumption which exists, when there is no note of evidence of parole testimony, that the judgment is well-founded and that it was based on competent evidence, is a fair and reasonable one conducive to the efficient administration of justice and should be given much weight. It has long been recognized in our law. Escurieux v. Chapduc, 4 Rob. 323 (La.1843); Hubbell v. Clannon, 13 La. 494 (1839).’ ”

The appellant, Statewide, did not furnish this court with a note of evidence and we must therefore assume that the judgment of the trial court is correct. Even if .there was no such presumption provided by our law, this court should note that setoffs should be specifically pleaded and proven by the defendant. La.C.C.P. art. 1005; Fontenot v. LaFleur, 281 So.2d 868 (La.App. 3rd Cir. 1973), rehearing denied September 14, 1973, writ refused October 26, 1973; Fontenot v. Liberty Mutual Insurance Company, 230 So.2d 402 (La.App. 3rd Cir. 1970), rehearing denied February 4, 1970. Appellant, Statewide, did not do so in the trial court and now attempts to introduce such specific evidence via the brief submitted to this court. In Dozier, Etc. v. Burleigh, 380 So.2d 197 (La.App. 3rd Cir. 1980), the court reiterated the point that Courts of Appeal cannot speculate on matters asserted in brief which are not properly a matter of record and are not properly before the court. An appellate court cannot review evidence that is not in the record nor receive evidence so as to supplement the record properly before it. Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123 (La.App. 1st Cir. 1979), rehearing denied April 17, 1979, writ refused June 1, 1979.

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

AFFIRMED.

      . La.C.C.P. art. 1035, provides:
      “The answer in an incidental action shall be filed within the delay allowed by Article 1001, or at any time prior to a judgment by default against the defendant in the incidental action, and shall be subject to all of the rules set forth in Articles 1001 and 1003 through 1006.”


author: WATKINS, Judge.

text:
    Phillip Harold DURAL, Individually and in his Capacity as Administrator of the Estate of his Minor Child, Andrea Dural v. CITY OF MORGAN CITY and Bart Mancuso.
    No. 14391.
    Court of Appeal of Louisiana, First Circuit.
    June 23, 1981.

      William H. Lambert, Lafayette, for plaintiff.
    Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendants.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for personal injuries brought by Phillip Harold Dural arising out of personal injuries sustained by his minor child, Andrea Dural, while swimming in a public pool owned by the City of Morgan City.

Counsel for plaintiff failed to appear at a pretrial conference on May 23, 1980, and to appear at a rule to compel Phillip Harold Dural to answer interrogatories, the rule having been fixed for trial on December 12, 1980. No order was ever issued directing Dural to answer the interrogatories.

As a result of counsel’s failure to appear at these proceedings plaintiff’s suit was dismissed without prejudice. Plaintiff was further ordered to pay $250.00 attorney’s fees. Plaintiff has appealed. We reverse.

The pre-trial article of the Code of Civil Procedure, art. 1551, and the other laws of this state, do not authorize the imposition of dismissal without prejudice as a penalty for counsel for plaintiff’s failure to appear at a duly ordered pre-trial conference. To so dismiss a suit for failure of plaintiff’s counsel to attend a pre-trial conference has been held by this court to be reversible error. Boudreaux v. Yancey, 256 So.2d 340 (La.App. 1st Cir. 1971); Rappelet v. Vining, 388 So.2d 125 (La.App. 1st Cir. 1980).

The question of whether failure of plaintiff’s counsel to appear at a rule to show cause why answers to interrogatories should not be filed should subject plaintiff to dismissal of the suit without prejudice has not been faced by a reported case in this state, as far as we can determine. However, this court has held that judgment by default should not be entered when there is no order of the trial court compelling an answer. Clark v. I. H. Rubenstein, Inc., 314 So.2d 489 (La.App. 1st Cir. 1975).

The Code of Civil Procedure contemplates a three stage procedure to compel answers to interrogatories (and other forms of discovery):

1. Upon refusal of a party to answer an interrogatory the adverse party may apply for an order compelling such answer. LSA-C.C.P. art. 1511.

2. After hearing, if the court finds the refusal was without substantial justification, the court shall issue an order requiring the answer to the interrogatory. LSA-C. C.P. art. 1511.

3. If a party refuses to obey an order issued in stage 2, the court may dismiss the proceeding, or grant judgment by default, or grant other specified appropriate relief. LSA-C.C.P. art. 1513.

The trial court improperly combined stages 2 and 3. It dismissed plaintiff’s suit without first issuing an order compelling plaintiff to answer the interrogatories. A suit may not be dismissed for failure to appear at a hearing conducted under stage 2, as was done in this case. Stage 2 can only result in the issuance of an order compelling the answer to the interrogatory. It is only upon refusal of the party or his counsel to obey the order issued under art. 1511 that suit may be dismissed (with or without prejudice) under art. 1513. To so combine the stages so that failure of counsel to appear at the hearing to compel an answer results in immediate dismissal is not sanctioned by the Code of Civil Procedure, and runs counter to the spirit of Clark, supra, which held judgment by default for failure to answer interrogatories could not be entered without there having been a prior order of court compelling such answer.

The trial court awarded attorney’s fees in the amount of $250.00 against plaintiff. Only if an order is issued directing that interrogatories be answered may attorney’s fees be awarded. Upon remand, the trial court may award attorney’s fees if it issues an order compelling an answer to the interrogatories. LSA-C.C.P. art. 1511. To award attorney’s fees absent the order contemplated by the cited Codal article is without authorization by the legislative enactments of this state.

Accordingly, we reverse the judgment of the trial court, and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COLE, J. dissents, believing the trial court has the inherent power to dismiss a suit under the facts and circumstances of .this case, particularly for counsel’s failure to appear at pre-trial.


author: FRED W. JONES, Judge.

text:
    Helen Ann FOSTER, Plaintiff-Appellant-Appellee, v. HOUSTON GENERAL INSURANCE COMPANY; Inez Grant; Morehouse Parish School Board; Horace Mann Insurance Company and Lloyd Gray, Defendants-Appellants-Appellees.
    No. 14664.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 1981.
    Writ Denied Jan. 18, 1982.

      McLeod, Verlander & Dollar by David E. Verlander, III, and Robert P. McLeod, Monroe, for plaintiff-appellant-appellee, Helen Ann Foster.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellants-appellees, Houston General Ins. Co. and Morehouse Parish School Bd.
    Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for defendants-appellants-appellees, Horace Mann Ins. Co., Inez Grant and Lloyd Gray.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

The mother of a mentally retarded youngster sued two school teachers and their insurer, the employer-school board and its insurer, and an automobile driver for the wrongful death of her son. Judgment was rendered in favor of plaintiff against all defendants except the car operator. The parties cast in judgment appealed, contending that the trial judge erred in (1) finding the school teachers were guilty of negligence which resulted in the student’s accident and death and (2) concluding the deceased student was not contributorily negligent and/or did not assume the risk.

Plaintiff also appealed, asserting that the trial judge should have found the school board independently negligent rather than simply liable as the employer of the negligent teachers, and further asked for an increase in the damage award.

We affirm.

On December 2, 1977 Robert Foster, age 17, was a student at the Morehouse Educational Development Center (“MEDC”) in Bastrop, a school for the mentally retarded operated by the Morehouse Parish School Board. Foster had been admitted to MEDC in 1968 upon the basis of tests which indicated he was an educabl'e mentally retarded youngster. He was again tested in 1975, when he was 15, and found to have an IQ of 52 and a mental age of seven years four months. This result placed him in the bottom range of the educable mentally retarded.

In 1977 Foster was chosen a member of MEDC’s Special Olympics basketball team. This was a school sanctioned activity, with practice sessions held during the regular physical education class period. Mrs. Inez Grant, the only physical education teacher at MEDC, was in charge of and responsible for the training of the team in its preparation for regional competition. She had been employed by the Morehouse Parish School Board for some 26 years and was in her second year at MEDC. Mrs. Grant was assisted by Lloyd Gray, a mathematics teacher, also in his second year at MEDC.

MEDC did not have a gymnasium. Although the junior high school with which it shared a campus did have such a facility, it was in constant use during regular school hours and was not available to the MEDC physical education classes. Consequently, Foster’s basketball team usually practiced outdoors on MEDC’s dirt court. However, .because she felt it was desirable for the team to have experience playing indoors on a wood floor, Mrs. Grant arranged for the boys to practice on December 2, 1977 in a gymnasium located in Dotson Park, a municipal facility located about three blocks from the MEDC campus.

As shown on the appended sketch, the MEDC campus was bounded on the north by West Madison Street (U.S. Highway 165) and on the west by South Haggerty Street. A chain link fence encircled the campus, with a gate on the west side for ingress and egress. The juncture of South Haggerty Street and West Madison Street formed a T-intersection which was controlled by a traffic semaphore signal. About half a block to the west of that intersection Parker Drive joined West Madison Street from the north, forming another T-intersection, which was controlled only by a stop sign on Parker Drive. Parker Drive extended north into Dotson Park.

There were no paved sidewalks along the streets in that area. At the time West Madison Street was a two lane blacktop street. It was one of Bastrop’s principal thoroughfares, with a traffic count on the portion inside the city limits during one 24 hour period of 14,050 vehicles.

Mrs. Grant and Gray planned to take the basketball team from MEDC to Dotson Park sometime during the lunch hour. Because of the relatively short distance they decided to walk rather than seek bus transportation from the school board. The route selected for the three-block walk exited the MEDC campus at the gate next to South Haggerty Street, crossed that street in the middle of the block, angled across an adjoining churchyard to a point on West Madison Street opposite Parker Street, crossed West Madison Street in the middle of that block (some 150 feet west of the traffic signal) and ran up the side of Parker Street to the park facility. Neither Mrs. Grant nor Gray had ever taken the basketball team to Dotson Park along this route. In fact, it was established that the MEDC teachers and students had only used the Dotson Park facilities once before, and that was for a picnic the year prior to the date in question.

Between 12:30 and 12:45 P. M., Gray gathered the team of 10 or 11 boys in a back building at MEDC and sent word to Mrs. Grant, who was teaching a class in the front building, that they were ready to go to Dotson Park. Mrs. Grant instructed them to wait for her to finish the class in progress. During this time Gray discussed with the youngsters safety precautions, particularly directed at street crossing. Since Mrs. Grant still had not joined them, Gray moved the group to the vicinity of her classroom. He said that the students were becoming increasingly “fidgety”. Therefore, Mrs. Grant was advised that Gray would take the team to Dotson Park alone. Mrs. Grant assented and stated that she would follow in her automobile.

Gray departed with the team along the planned route. After they crossed South Haggerty Street and were traversing the churchyard, five or six of the boys broke away from the group and started running ahead, paid no heed to admonitions from Gray, and crossed West Madison Street on their way to the park. Gray then rejoined the remaining group of five students which included Foster, led them up to West Madison Street, and lined up the youngsters parallel to the street to wait for an opportune moment to cross.

At that time traffic in the eastbound lane faced a red light at the West Madison Street-Haggerty Street intersection and was backed up past the place where Gray and his contingent were standing. Confronted with this situation, Foster suddenly dashed out into the street, ran between two stationary vehicles in the eastbound lane, got into the westbound lane and looked to his right, saw a car coming in that lane and stopped suddenly, at which time his feet slid out from under him. The youngster was run over by the oncoming automobile, suffering the serious injuries from which he died three days later.

In his written opinion the trial judge absolved the defendant driver of the car which ran over Foster of liability, concluding that the accident was unavoidable as far as the vehicle operator was concerned. However, he found that Mrs. Grant was negligent because of “her failure to provide other transportation, her failure to supervise, her negligent choice of a route to the park and her failure to adequately instruct the students.” The trial judge also determined that Gray was negligent by virtue of his “failure to provide alternate transportation, his failure to wait for Grant before undertaking the trip, his failure to adequately instruct or supervise the students, and his failure to maintain control over the students.” The negligence of the two teachers was deemed to have been the proximate cause of Foster’s accident and ensuing death. No independent negligence was found on the part of the school board, but it was held liable for the negligence of its employees under the doctrine of respondeat superior. The defense that Foster was con-tributorily negligent and/or assumed the risk was rejected.

Cases dealing with the tort liability of school personnel in which inadequate supervision is an issue generally discuss these two distinct questions: (1) Under the facts of the case, what duty of supervision was owed to the injured student? (2) Was that duty reasonably satisfied by the conduct of the supervisory personnel? See Annotation, Public Schools-Torts-Supervision, 38 A.L. R.3rd 830.

It follows, then, that the first legal issue presented for consideration in this case involves an inquiry concerning the nature of the duty owed by Mrs. Grant and Gray to Foster with respect to this trip from the MEDC campus to Dotson Park. At the beginning it is appropriate to focus upon the limitations and handicaps of this particular student. According to an evaluation report prepared in 1968, Foster was referred for testing because:

“He doesn’t seem to be able to follow simple directions. Auditory perception poor (doesn’t respond when called on— only sometimes). His attention span is too short.”

Reasons for referral in 1975 were substantially the same.

During his entire life Foster had resided with his mother in Collinston, a rural More-house Parish village, where there was considerably less traffic than in Bastrop.

In summary, on the date in question Foster was a 17 year old with a mental age of about 7 or 8 years, possessing poor auditory ability and a short attention span, who experienced difficulty in following simple instructions, and who had limited experience in coping with heavy vehicular traffic.

This individual was being taken with some ten other youngsters with varying degrees of mental retardation along a three block route which required the crossing of a heavily traveled thoroughfare, with all of the usual attendant hazards.

Because of the special relationship existing between them and their students, teachers on campus are under a general duty to conduct their classes so as not to expose their students to unreasonable risk of injury. Green v. Orleans Parish School Board, 365 So.2d 834 (La.App.4th Cir.1978). That duty becomes more onerous when the student body is composed of mentally retarded youngsters. See Gonzalez v. Mackler, 19 A.D.2d 229, 241 N.Y.S.2d 254 (1963). Recognition of that duty was manifested in this case by the testimony of Mrs. Grant that she collected the children for her physical education class by going to each room, getting the children, taking them to the physical education class and then taking them back to their rooms. Needless to say, this is not the practice with adolescent students in the average school.

It is recognized that on-campus care of mentally retarded students does not require continuous supervision. Hunter v. Evergreen Presbyterian Vocational School, 338 So.2d 164 (La.App.2d Cir.1976). However, once the decision was made in this case to take the Special Olympics team off campus on a walking trip across a heavily traveled thoroughfare, the personnel responsible for the team had a duty to maintain closer supervision over the youngsters than if they had remained on-campus.

Under this particular factual situation, what was the duty of Mrs. Grant and Gray? First, their duty was to have had an adequate number of supervisory personnel accompany the team to assure that the youngsters were kept under control and protected from hazards that might be encountered going to and coming from the park. Further, the accompanying personnel were under a duty to maintain close supervision over the students at all times, particularly when they were in the vicinity of moving vehicles. Second, the defendant teachers had the duty to choose the safest walking route from the MEDC campus to Dotson Park — i.e., the route along which the students would be exposed to the fewest traffic hazards.

Having delineated the duty of Mrs. Grant and Gray, the next question is: was the requirement of the performance of this duty designed to safeguard against the risk involved in this case — that Foster might ignore instructions and dash into the street in front of an oncoming car? Put another way, should these teachers have foreseen the likelihood that an adolescent with a mental age of 7 or 8 years might act impulsively as did Foster?

“Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful man would take account of it in guiding practical conduct.” Annotation, Negligence-Causation-Foreseeability, 100 A.L.R.2d 942.

Mrs. Grant and Gray had under their care a group of youngsters who were understandably excited about an excursion off-campus to practice basketball. The extended wait for Mrs. Grant simply heightened that nervous tension. In this situation there would have been difficulty in controlling a group of normal adolescents, much less one composed of those whose physical energies matched their chronological ages but who have the self-control and judgment of much younger children. Foster had poor auditory reception and a short attention span. As a result, the effectiveness of any oral safety instructions given to him prior to embarking on the trip would have been limited. We find, therefore, that the likelihood of a youngster in this category yielding to an impulse by running across the street in the path of an oncoming vehicle should have been anticipated or foreseen. After all, this was basically the reason why the students were not sent by themselves without any accompanying supervisory personnel. For>this reason, we conclude that this risk was within the ambit of the duty imposed upon the defendant teachers.

This brings us to the final question: did the defendant teachers breach their duty by failing to act reasonably under the circumstances? We answer in the affirmative. First, the group was not accompanied by a sufficient number of supervisory personnel. This was evidenced by the precipitating event in this tragic drama — Gray’s loss of control of the group in the churchyard and the headlong dash of several students on across West Madison Street in disregard of their “safety instructions” and Gray’s shouts. The mere presence of an adequate number of qualified supervisory personnel could have prevented the initial breakup of the team, particularly if the supervisors had been placed in strategic positions among the students. Next, in the crucial approach to West Madison Street, accompaniment by a sufficient number of supervisory personnel would have enabled continued control of the youngsters. At least one teacher would have been available to stand in the street and halt traffic and the other or others could have guided the students across the thoroughfare.

Mrs. Grant, who was in charge of the planned practice session, permitted Gray to take the children on the walking trip alone. This constituted a breach of her duty. Gray embarked upon the trip without needed additional supervisory personnel and lost control of the group, thereby breaching his duty.

We also find from our examination of the record that the defendant teachers breached their duty by failing to select the safest route from the MEDC campus to the municipal park. Rather than crossing West Madison Street at its controlled intersection with South Haggerty Street, Mrs. Grant and Gray chose to cross West Madison Street at an uncontrolled crossing. The traffic signal light at the controlled intersection was operating on such a sequence that, at one point, it would be red for eastbound traffic but green for westbound traffic. This occurred at the time of the accident. A mentally retarded youngster, observing traffic stopped in the eastbound lane, would have no reason to realize that traffic in the other lane might be moving on a green light. In that sense we agree with the trial judge that this particular crossing could have constituted a “trap” for these youngsters. On the other hand, if the students had been led across West Madison Street at the controlled intersection, at a point east of the traffic signal light, a red light would have shown simultaneously on both sides of the traffic light. Consequently, this would have been the safest place to cross the heavily traveled street.

To summarize, the defendant teachers owed Foster a legal duty, the nature of which was determined by their relation to him, his mental retardation and the hazards to which he would be exposed on the walking trip. This duty was designed to protect Foster from his own impulsive acts and, specifically, the risk that he might do precisely what he did in this ease—run into the street in front of a car. Last, the defendant teachers breached their duty by failing to act reasonably under the circumstances— failing to provide an adequate number of supervisory personnel, and failing to select the safest route for the walk.

Defendants argue that plaintiff’s claim is bárred by her son’s contributory negligence; that the sole proximate cause of his death was his sudden dash into the street in violation of Gray’s instructions; and that nothing less than continuous supervision, including personal restraint, could have prevented Foster’s precipitated act.

As explained, this is the type of risk which the duty imposed upon the defendant teachers was designed to protect against. Experience teaches that the mere presence of adequate adult supervisory personnel tends to curb the recognized proclivity of immature children to act impulsively and to protect them against their own folly. It would be illogical to then bar plaintiff’s action because her mentally retarded son engaged in conduct which his teachers were under a duty to guard against. For this reason the defense of contributory negligence and/or assumption of risk is without merit.

We agree with the trial judge that the defendant school board was not guilty of independent negligence. It was under no duty to build a separate gymnasium for the use of MEDC students. Whether it should have provided bus transportation is not at issue since there was no evidence that the defendant teachers made such a request. The record shows that the school board issued a safety manual for the guidance of school personnel for trips of this nature.

In her appeal plaintiff asks that the trial judge’s award for her son’s pain and suffering be increased from $10,000 to $15,000, and that the award for the loss of her son’s love and affection be increased from $40,000 to $50,000. Our review of the record convinces us that these .awards do not constitute an abuse of the trial judge’s broad discretion in this area.

For the reasons set forth, we affirm the judgment of the district court at defendants-appellants’ cost.

      . Athletic competition organized exclusively for the handicapped.

      . There was some evidence of a school board policy that bus transportation would not be available for short trips of this nature.

      . Mrs. Grant and Gray appeared to recognize the importance of this requirement since they concededly testified falsely in discovery depositions that both actually accompanied the team on the walking trip.

      . Foster’s injuries included facial fractures, a fractured collarbone, fractured ribs, a fractured pelvis, and a damaged spleen which had to be removed. He lived for three days after the accident, was conscious at least part of this time and doubtless suffered considerable pain and discomfort.


author: PER CURIAM.

text:
    William BATSON v. CHEROKEE BEACH AND CAMPGROUNDS, INC., et al.
    No. 14394.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1981.
    Writ Granted Jan. 8, 1982.
    Gordon Hackman, Boutte, for plaintiff. J. R. Schmidt, Hammond, for Lyn Ezell, Pat Painter and Harry Walz.
    France W. Watts, III, Franklington, for Tangipahoa Parish Police Jury.
    Donald Phelps, Baton Rouge, for Cherokee Beach Campgrounds, Inc., Pat Painter, Lyn Ezell and Harry Walz.

      A. Kell Mclnnis, Baton Rouge, for State of La.
    Before COVINGTON, COLE and WATKINS, JJ.
   PER CURIAM.

This appeal was fixed for October 1,1981, at 9:30 A.M. and all attorneys of record were notified as of July 31, 1981. At the time scheduled for submission without argument, the appellant neither appeared nor filed a brief, nor did appellant file a written instrument negating any intent to abandon the appeal, nor did appellant file any other written pleading.

At 8:45 A.M. on October 1, 1981, counsel for appellant telephoned the office of the clerk of this court advising he did not desire to abandon his appeal. He did not, however, make any mention of the fact that he had not filed a brief, nor did he express any intent to file a brief in the future, nor did he in any way allude to a brief.

On October 2,1981, the clerk of this court received in the mail a “Notice of Intention that Appeal is Not Abandoned” wherein appellant sought an order allowing an additional ten days within which to file a brief. The court pretermitted action on the requested order, noting the erroneous assertion that appellant had communicated verbally his request the previous day.

On authority of Rule VII, Section 5(b), and recognizing it as a valid exercise of the rule making power of the court, necessary to assist in the orderly processing of appellate reviews, and noting that appellant’s brief has still not been filed with this court, we, ex proprio motu, consider said appeal as now abandoned.

IT IS ORDERED that this appeal be dismissed with prejudice, at appellant’s costs.

APPEAL DISMISSED.


author: ELLIS, Judge. LOTTINGER, Judge,

text:
    In re Nelson ALLAIN and Lydia Allain Applying for the Adoption of Kelly Rene Levert.
    No. 14370.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Marsha M. Mistric, Brusly, for plaintiff-appellee.
    Ralph Tureau, Gonzales, for defendant-appellant.

      Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge.

This is a suit by Nelson and Lydia Allain for the adoption of Kelly Rene Levert, legitimate child of Richard Levert and Patricia Boudreaux Levert. The adoption was opposed by Mrs. Levert. After trial on the merits, the court found that Kelly had been legally abandoned by Mrs. Levert and granted an interlocutory decree of adoption to Mr. and Mrs. Allain. Mrs. Levert has appealed.

Kelly was born on July 7, 1977, and lived with her parents until June 1, 1978, when Mrs. Levert voluntarily committed herself to East Louisiana State Hospital for treatment for drug related problems. At that time, Mr. Levert took Kelly to Mr. and Mrs. Allain, who agreed to care for her. On June 15,1978, Mr. and Mrs. Allain, with the consent of Mr. Levert, were granted custody of Kelly by order of the Juvenile Court of West Baton Rouge Parish.

Mrs. Levert was discharged from the hospital on September 14,1978, and learned for the first time that the Allains had custody of Kelly. She retained an attorney, who filed a rule for custody in the juvenile proceeding. Apparently, a conference was held with the judge relative to custody, and, in April 1979, an arrangement was reached by virtue of which Mrs. Levert would visit Kelly with increasing frequency and eventually regain full custody. Apparently, support for the child was discussed, but no arrangements were made relative thereto. In June 1979, Mrs. Levert filed a second rule to have custody restored to her. The record does not reveal the result of the rule, but Kelly remained with Mr. and Mrs. Al-lain.

In July or August of 1979, Mr. and Mrs. Levert separated, and Mrs. Levert moved to Livingston Parish. She continued to see Kelly two or three times a week, at the home of the Allains. On February 2, 1980, Mrs. Levert moved to Oswego, New York, where her brothers lived. She telephoned Kelly at irregular intervals from New York. On March 31, 1980, Mrs. Levert was badly burned in an automobile accident, and was hospitalized until June 7, 1980. She continued to receive outpatient treatment for her burns for some time thereafter. During her hospitalization, she called Kelly several times a day until she was told by the judge of the Juvenile Court to call no more than once a week. She continued to call Kelly at intervals until she returned to Louisiana in October 1980.

During the entire period that Kelly lived with the Allains, Mr. and Mrs. Levert paid only $150.00 to the Allains, in early 1979. Mrs. Levert had no recollection of having been ordered to send support money. The Allains never requested any support for Kelly from either of her parents. Mrs. Le-vert inquired periodically as to whether Kelly needed anything, and was told by Mrs. Allain that she did not. Mrs. Levert periodically sent toys and some clothing to Kelly. Throughout the entire period she always expressed a desire to regain custody of her daughter.

This petition for adoption was filed on August 29, 1980, alleging the desire of Mr. and Mrs. Allain to adopt the child, and further alleging that the natural parents had contributed nothing to the support of their child for over nine months, and had “evidenced an attention to permanently avoid all parental responsibility for the minor child, which circumstances indicate that KELLY RENE LEVERT is an abandoned child under the appropriate laws of Louisiana.”

As pointed out above, the trial judge found that Kelly had been legally abandoned by her parents, and granted the interlocutory decree of adoption. The major point at issue is that of abandonment.

R.S. 9:403. A. provides, in part, as follows:

“A child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove either:
“(l)(a) The child has been deserted for a period of at least four months by his parent or parents, the whereabouts of his parent or parents are unknown, the parent or parents have made no provision for the child’s care and support .and have shown an intention to avoid parental responsibility; or
“(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.”

R.S. 9:403. B. provides for the initiation of an abandonment proceeding as follows:

“An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place or residence of the parent of the child if known to the deponent....”

There is no provision in the statute permitting a private individual to initiate an abandonment proceeding. A number of cases have held that private individuals have no standing to initiate an abandonment proceeding. In re State in Interest of Fischbein, 194 So.2d 388 (La.App. 4th Cir. 1967); In re Meier’s Adoption, 169 So.2d 583 (La.App. 4th Cir. 1964); In Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir. 1975). In the latter case, the court stated that the abandonment action “was not intended as a first step in a private adoption proceeding or as a method of dispensing with parental consent in such a proceeding.”

However, in State ex rel. In the Interest of Banks, 392 So.2d 497 (La.App. 4th Cir. 1980), the Fourth Circuit repudiated the above language from the Jackson case, and permitted a decree of abandonment in an action instituted by the natural father and his wife. In so holding the court stated:

“ j-iSA — R.S. 9:403 B authorizes an abandonment action to be initiated by an agency or officer of the court. R.S. 9:403 C authorizes the court to decree a child as abandoned and to ‘place the child in the custody of an agency, a person or persons or make any other disposition of the child that is in the best interest of the child.’ We cannot ignore this plain wording which confers plenary authority on the court to declare a child abandoned and to make any disposition which is in the child’s best interest.”
R.S. 9:403.C. reads in full, as follows: “In the event the facts constituting abandonment are proved by clear and convincing evidence to the satisfaction of the court, the court shall decree the child to be an abandoned child and may place the child in the custody of an agency, a person or persons, or may make any other disposition of the child that is in the best interest of the child.”

We must disagree with the above holding of the Fourth Circuit. It is our opinion that this section of the statute is intended to apply only to actions properly instituted by a private individual. We therefore find that the trial court improperly considered the abandonment aspect of the case.

In any event, however, we find the trial judge to have been manifestly erroneous and clearly wrong in his finding that Patricia Boudreaux Levert had legally abandoned her child. Although she provided no support, none was requested, even when she inquired, and Mrs. Levert did periodically send gifts and clothing for her child. No one disputes the fact that Mrs. Levert has been steadfast in her desire to regain custody of her child. We think it clear that the circumstances of this case do not evidence “an intention to permanently avoid parental responsibility”, as required by R.S. 9:403.A.(l)(b). Even in a properly instituted proceeding we find that Kelly could not be considered as abandoned by her mother.

Since Mrs. Levert has not given her consent to Kelly’s adoption, and since that consent is necessary, absent a finding that Mrs. Levert has forfeited her parental rights by legally abandoning her child, the adoption decree herein rendered cannot stand.

The judgment appealed from is therefore reversed and set aside and there will be judgment dismissing the adoption petition of Nelson Allain and Lydia Allain at their cost.

REVERSED AND RENDERED.

LOTTINGER, Judge,

concurring.

I agree with the result reached in the majority’s opinion. However, I would additionally point out as regards La.R.S. 9:403 B, that if the legislature had any intention of allowing a private individual to initiate an abandonment proceeding, that it could have easily done so by the simple insertion of the clause “or other interested person or persons.” The absence of such language makes it clear that there was no such intention.


author: COVINGTON, Judge.

text:
    CROWN ZELLERBACH CORPORATION v. Wallace E. HECK, et al.
    No. 14404.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      Richard P. Knight, Bogalusa, for plaintiff.
    George P. Bevan and Michael A. Patterson, Baton Rouge, for defendants.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by the defendants, Wallace E. Heck, E. Drew McKinnis and Joseph E. Juban (Heck group), from a judgment in favor of plaintiff, Crown Zellerbach Corporation (Crown), rejecting their demands that they be recognized as the owners of a one-half interest in minerals in and to 90.25 acres of land in Sec. 31, T. 6 S., R. 5 E. and Sec. 6, T. 7 S., R. 5 E. Livingston Parish, Louisiana. We affirm.

This action was brought as a possessory action by Crown against the defendants, with Crown claiming possession of all mineral rights in the subject property, and claiming a disturbance in law of Crown’s possession by a letter dated August 18, 1977, asserting ownership of the property and of the mineral rights, sent to Chevron Oil Company by one of the defendants in behalf of himself and the other defendants. The defendants answered, denying any disturbance, although admitting the sending of the letter to Chevron. Then, the defendants converted the action into a petitory action by setting up their own ownership of an undivided one-half interest in the minerals in and to the subject lands by virtue of two cash sales from Roy L. Roshto and Robert H. Bone in 1975, both instruments being recorded in the records of Livingston Parish.

The pretrial order established that on January 5, 1966, Crown sold to the State of Louisiana the subject lands in Sections 31 and 6 above mentioned, reserving the mineral rights to said lands; that on August 29, 1975, and on September 26, 1975, Crown sold to Roshto and Bone, defendants’ authors in title, certain lands contiguous to the 90.25 acres previously sold to the State, reserving one-half of the minerals in the Roshto-Bone acquisition; that Roshto and Bone then sold to the defendants the lands of the Roshto-Bone acquisition by deeds dated August 29, 1975, and September 29, 1975. At the trial no testimony was offered by either party; the parties in support of their respective claims offered an area map of the subject property, the act of sale from Crown to the State, the act of sale from Crown to Roshto and Bone, two acts of sale from Roshto and Bone to Heck, McKinnis and Juban, two survey plats, stipulation of facts, and an amended answer by the defendants.

Having converted the action into a petitory action, the Heck group had the burden of proving a valid title good against the world, and the title of Crown does not come into question until the Heck group, plaintiffs in the petitory action, have proved an apparently valid title in themselves. LSA-C.C.P. arts. 3651, 3653; Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974); Garrett v. Ernest, 369 So.2d 713 (La.App. 1 Cir. 1979), writ denied, 371 So.2d 1340 (La.1979); Green v. Cenac, 336 So.2d 349 (La.App. 1 Cir. 1976), writ denied, 339 So.2d 20 (La.1976).

There is no evidence in the record of an unbroken chain of valid transfers to the Heck group from the sovereign or an ancestor in title common with the opponent (Crown), or that the group acquired the property by acquisitive prescription (of ten or thirty years). Consequently, we hold that the Heck group, having failed to establish a valid title, failed to sustain their burden of proof, and the judgment rejecting their claim of ownership was proper. Their petitory action was properly dismissed. See Rivet v. Dugas, 377 So.2d 489 (La.App. 4 Cir. 1979).

The particular mineral rights to which defendants assert ownership were reserved by Crown in the deed from Crown to the State of Louisiana, dated January 5, 1966. In this conveyance, Crown sold to the State several parcels of land, including land where is now located the interchange of Interstate Highway 12 and Louisiana State Route 63. The land sold in that deed was designated as certain numbered parcels, each of which was described by a metes and bounds survey description, and further identified by reference to the survey plat prepared for the Interstate Highway 12 project. Crown reserved all of the mineral rights in and to the 90 acre tract described in that deed, which mineral reservation is perpetual and imprescriptible so long as the State owns that tract of land. See LSA-R.S. 31:149.

According to LSA-R.S. 31:149-152, if land is acquired by the State through any means, except tax adjudication, and the deed transferring the land to the State reserved a mineral servitude or other mineral right subject to prescription, the mineral interest remains in effect in perpetuity, and the normal rules of prescription do not apply so long as the title to the land remains in the State. Essentially, if in the act of acquisition by the State, mineral rights normally subject to prescription are reserved to the landowner, prescription does not run so long as the land remains in the hands of the State. See Comment under LSA-R.S. 31:149.

In August and September of 1975, Crown sold to Roshto and Bone, the Heck group’s vendors, lands contiguous on the north and south to the interchange tract. In those sales, Crown reserved one-half of all minerals in and to the lands transferred therein. The Heck group then acquired from Roshto and Bone all of their interests in and to said lands. The defendants contend that they acquired from their vendors not only the lands described in the deeds to Roshto and Bone and one-half the minerals therein, but also the mineral rights reserved by Crown in the 1966 sale of the 90 acres to the State.

The primary basis for the appellants’ claim and their appeal is LSA-R.S. 9:2971. This 1956 law deals .with transactions affecting lands described as fronting on any kind of right of way, and establishes a conclusive presumption that such a transaction includes all of the transferor’s interest in and under the right of way unless expressly excluded. The statute conclusively presumes “that any transfer... affecting land described as fronting on or bounded by a waterway, canal, highway, road, street, alley, railroad or other right of way, shall be held ... to include all of grantor’s interest in and under such waterway,. .. highway, road ... or other right way.... ” We emphasize the words “described as fronting on or bounded by,” because the deeds from Crown to Roshto and Bone do not “describe” the lands therein transferred as “fronting on or bounded by” the highway or right of way. The descriptions contained in those deeds are survey proces verbals, and the courses and distances necessary to delineate exactly the particular tracts are given therein. While there is mention of the margins of the highway, such reference is unnecessary to a legally sufficient description, and was made simply as a reference to correlate these survey descriptions with those of the highway. There is a difference between a sale of land which happens to front on a highway, such as this, and a sale wherein the description is accomplished only by reference to a highway or other right of way as one of the boundaries necessary to locate the property.

Moreover, the statute lists as boundaries “a waterway, canal, highway, road, street, alley, railroad or other right of way,” indicating its applicability to boundaries which are “rights of way,” rather than fee or perfect ownership. The State does not have a right of way over the property on which the interchange is located; the State owns the land, with a reservation of the minerals to its vendor, Crown. The reason for the statute’s applicability being properly limited to “right of way” boundaries can be found from its purpose. The legislature considered that, in some sales per aversion-em, or boundary to boundary descriptions, there were instances where a vendor did not specifically transfer all the property he intended to transfer. For example, a landowner might own a tract of land over which the State or other public body had acquired a road right of way. The landowner might sell the land without having a survey run, by simply describing the land as “bounded on the west by the public road.” The parties may believe and have intended that all that the landowner owned be sold, but he may yet (prior to the statute) legally own the fee title to the land over which the road right of way is located, since the sale description might be read to place the western boundary line as the east margin of the public road. To supply this intent and to prevent the possibility of small fractional strips of land indefinitely confusing land titles, the legislature enacted LSA-R.S. 9:2971. There is no reason or purpose for the statute to apply except in situations where a right of way servitude is involved, (and thus a retention of fee ownership by the grantor under the right of way) since in those instances where the State or other public body becomes the owner in fee of the highway, a description using the highway as a boundary transfers all the land that the grantor then owns without any rever-sionary rights.

We hold that the cited statute is inapplicable to the present set of facts. The statute by its very language does not apply to the conveyances from Crown to Roshto and Bone, and from Roshto-Bone to the Heck group.

As stated above, the property sold by Crown to Roshto and Bone in 1975 was completely described by survey description, from point of beginning through successive courses and distances to closing, delineating the exact boundaries and configuration of the property which was the subject of the sales. We find that Crown intended to convey only the property included within the exact and precise limits of the survey description. The statute speaks only of an express provision in the deed particularly excluding any contiguous interests; we believe that a survey which excludes such contiguous lands satisfies that requirement.

It is a cardinal rule of statutory interpretation that, if it is possible to do so, every part of a statute must be give effect, for the legislature is not presumed to insert superfluous, useless and meaningless words, sentences, phrases, or clauses in its enactments. See Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Hibernia Nat. Bank in New Orleans v. Louisiana Tax Commission, 195 La. 43, 196 So. 15 (1940).

In the case of State v. Texas Co., 205 La. 517, 17 So.2d 569 (1944), our Supreme Court was called upon to interpret certain provisions of Act No. 52 of Ex.Sess. 1921 dealing with the sale of public lands belonging to the State of Louisiana. The issue was whether the lands authorized to be sold included the bottoms of navigable waters. The Courts stated the following:

“The assumption is that all parts of a statute — each word, each phrase, each clause — were intended by the Legislature to have some meaning; none was inserted by mere inadvertence. Furthermore, all of the statutory provisions are to be given effect wherever possible. With this in mind, we observe that the Legislature in Section 1 of the Act of 1921, after referring to all vacant and unappropriated public lands of the state, used the words ‘now existing or hereafter acquired by accretion or otherwise.’ This reference to acquisition by accretion is of much significance. If the intention had been as defendants contend, that the preserve should be composed of all lands within its general area, including water bottoms, there would have been no reason for the specific inclusion of accretive land. The preserve, if all embracing, naturally would contain that property. The clause ‘acquired by accretion’ can be given a definite meaning and made to function; but to adopt the construction of the statute for which defendants contend would render that clause meaningless and mere surplusage.” (Emphasis by the Court.)

In the case of Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1 Cir. 1976), writ refused, 343 So.2d 1076 (La.1977), this Court stated that:

“Every word in a statute must be given meaning, if possible; no word, clause, phrase or sentence of a statute shall be deemed meaningless or surplusage if a construction can be legitimately found which would give force to and preserve every word of the statute.”

There was at issue the interpretation of an ordinance dealing with cable television connections which provided:

“Grantee shall make connections to subscriber outlets with switching capability to permit non-cable television reception should the subscriber desire and request such reception. ... ”

The question was whether the cable franchisee was required to install switching capability in every case or only upon the request of the subscriber. This Court found that, if the provisions of the ordinance were intended to be compulsory, inclusion of the conditional phrase “should the subscriber desire and request” would be completely unnecessary and surplusage. Consequently, the Court held that the ordinance required the installation of the switching capability only upon request of the subscriber.

We believe that the proper interpretation of LSA-R.S. 9:2971 requires that the phrase “described as” be given meaning and effect. A sale of land per aversionem transfers to the purchaser only the land included within the designated boundaries, unless the property is described as fronting on or bounded by a right of way. See State, Department of Highways v. Tucker, 247 La. 188,170 So.2d 371 (1969). Thus, we hold that only transfers which describe the property transferred as fronting on or bounded by a right of way are subject to the conclusive presumption. In the instant case, the conveyance to Roshto-Bone by Crown did not “describe” the conveyed property as fronting on or bounded by a right of way.

For the foregoing reasons, we affirm the judgment of the district court rejecting the demands of the plaintiffs in the petitory action, Wallace E. Heck, E. Drew McKinnis and Joseph E. Juban, to be recognized as owners of the immovable property or of any mineral interests therein, more fully described as:

“90.25 acres of land, more or less, being all that part of the following described property which is located in Section 31, T6S, R5E and Section 6, T7S, R5E, Livingston Parish, Louisiana:

PARCEL NO. 13-1: Commence at a point which marks the Southeast corner of Section 2, Township 7 South, Range 4 East, Livingston Parish Louisiana, and proceed North 00° 30' 10" West along the line between Section 2 and Section 1 a distance of 5,116.53 feet to the true point of beginning; from said point of beginning proceed South 89° 07' 14" West a distance of 1,067.37 feet to a point; thence along the arc of a curve to the right (the radius of which curve is 114,741.56 feet and the long chord of which bears South 89%A 10' 59" West, 247.21 feet) a distance of 247.21 feet to a point and corner; thence North 01° 54' 05" West a distance of 300.06 feet to a point and corner; thence proceed along the arc of a curve to the left (the radius of which curve is 114,441.56 feet and the long chord of which bears North 89° 11' 04" East 252.56 feet) a distance of 252.56 feet to a point; thence continue North 89° 07' 14" East a distance of 1,066.90 feet to a point; thence continue North 89° 07' 14" East a distance of 4,027.46 feet to a point on Vendor’s boundary line common with the property of Johnnie W. Watts et al and corner; thence South 00° 30' 04" East a distance of 126.78 feet to a point and corner; thence proceed North 89° 21' 23" East a distance of 1,393.-19 feet to a point which marks the Northeast corner of Section 1, Township 7 South, Range 4 East, Livingston Parish, Louisiana; thence proceed North 00° 30' 04" West a distance of 132.51 feet to a point and corner; thence proceed North 89° 07' 14" East a distance of 184.08 feet to a point; thence proceed along the arc of a curve to the left (the radius of which curve is 1,095.92 feet and the long chord of which bears North 61° 59' 10" East, 502.54 feet) a distance of 507.05 feet to a point; thence North 36° 59' 00" East a distance of 143.44 feet to a point; thence North 45° 05' 56" East a distance of 148.12 feet to a point; thence North 33° 28' 53" East a distance of 324.03 feet to a point; proceed along the arc of a curve to the right (the radius of which curve is 466.00 feet and the long chord of which bears North 53° 51' 24" East 324.49 feet) a distance of 331.43 feet to a point; thence North 74° 13' 55" East a distance of 101.82 feet to a point; thence North 37° 27' 13" East a distance of 119:74 feet to a point; thence North 89°. 13' 53" East a distance of 25.17 feet to a point on the existing westerly right of way line of State Route La. 63 and corner; thence South 00° 46' 04" East along said right of way line a distance of 70.56 feet to a point; thence South 00° 21' 52" East a distance of 101.23 feet to a point; thence South 00° 34' 38" East a distance of 500.26 feet to a point; thence South 02° 24' 36" East a distance of 200.00 feet to a point; thence South 04° 24' 52" East a distance of 200.12 feet to a point; thence South 06° 48' 16" East a distance of 305.16 feet to a point; thence South 08° 33' 39" East a distance of 997.84 feet to a point; thence proceed North 83° 27' 56" West a distance of 199.11 feet to a point; thence proceed along the arc of a curve of the right (the radius of which curve is 450.00 feet and the long chord of which bears North 49° 03' 34" West, 508.55 feet) a distance of 540.45 feet to a point; thence North 14° 39' 12" West a distance of 210.37 feet to a point; thence proceed along the arc of a curve to the left (the radius of which curve is 666.20 feet and the long chord of which bears North 32° 11' 33" West 401.53 feet) a distance of 407.87 feet to a point; thence North 63° 56' 58" West a distance of 47.22 feet to a point; thence North 60° 42' 01" West a distance of 219.48 feet to a point; thence South 89° 07' 14" West a distance of 585.34 feet to a point; thence continue South 89° 07' 14" West a distance of 5,418.25 feet to the point of beginning and containing 80.143 acres. PARCEL NO. 13-1-A: Commence at the intersection of Vendor’s north boundary line with the existing westerly right of way line of State Route La. 63 and proceed South 00° 46' 23" East along said right of way line a distance of 25.94 feet to the true point of beginning; from said point of beginning continue South 00° 46' 04" East along said right of way line a distance of 131.51 feet to a point and corner; thence South 89° 13' 53" West a distance of 25.17 feet to a point; thence North 10° 04' 02" East a distance of 133.90 feet to the point of beginning and containing 0.038 of an acre.

“PARCEL NO. 16-1: Commence at point which marks the Southeast corner of Section 6, Township 7 South, Range 5 East, Livingston Parish, Louisiana, and proceed North 00° 30' 30" West a distance of 5,307.-07 feet to a point which marks the Northeast corner of said Section 6; thence continue North 00° 16' 47" West along the line between Section 31 and Section 32, Township 6 South, Range 5 East, Livingston Parish, Louisiana, a distance of 29.83 feet to a point which marks Highway Survey Station 137 + 71.58 on the centerline of the aforementioned highway project and corner; thence proceed South 89° 07' 14" West along the said project centerline a distance of 1,630.54 feet to the true point of beginning; from said point of beginning proceed South 04° 40' 56" East a distance of 101.14 feet to a point; thence South 05° 18' 07" East a distance of 49.23 feet to a point and corner; thence South 89° 07' 14" West a distance of 734.45 feet to a point; thence proceed along the arc of a curve to the left (the radius of which curve is 1,095.92 feet and the long chord of which bears South 48° 43' 26" West, 978.57 feet) a distance of 1,014.40 feet to a point; thence South 22° 12' 26" West a distance of 65.93 feet to a point; thence proceed along the arc of a curve to the right (the radius of which curve is 466.00 feet and the long chord of which bears South 44° 22' 15" West, 351.60 feet) a distance of 360.53 feet to a point; thence South 66° 32' 05" West a distance of 101.82 feet to a point; thence South 29° 45' 22" West a distance of 119.75 feet to a point; thence South 81° 32' 04" West a distance of 25.42 feet to a point on the existing easterly right of way line of State Route La. 63 and corner; thence North 08° 33' 39" West along said right of way line a distance of 1,055.56 feet to a point; thence continue North 06° 51' 12" West a distance of 294.60 feet to a point; thence continue North 04° 24' 52" West a distance of 200.12 feet to a point; thence North 02° 24' 36" West a distance of 200.00 feet to a point; thence North 00° 34' 38" West a distance of 500.26 feet to a point; thence North 00° 19' 45" West a distance of 98.37 feet to a point; thence North 00° 45' 59" West a distance of 12.93 feet to a point, said point being 49 feet East of Highway Survey Station 61 + 10.87 on the adopted centerline of State Route La. 63; the controlled access hereinafter stated shall extend North 00° 46' 06" West along the existing east right of way line of said State Route La. 63 a distance of 58.42 feet to a point and end; from the end of the North 00° 45' 59" West 12.93 foot line proceed South 75° 46' 06" East a distance of 193.35 feet to a point; thence proceed along the arc of a curve to the right (the radius of which curve is 450.00 feet and the long chord of which bears South 47° 33' 15" East, 425.49 feet) a distance of 443.18 feet to a point; thence South 19° 20' 24" East a distance of 208.39 feet to a point; thence proceed along the arc of a curve to the left (the radius of which curve is 666.20 feet and the long chord of which bears South 46° 04' 48" East, 599.50 feet) a distance of 621.82 feet to a point; thence North 89° 07' 14" East a distance of 1,113.26 feet to a point and corner; thence proceed South 04° 40' 56" East a distance of 150.33 feet to the point of beginning and containing 41.313 acres. “PARCEL NO. 16-1-A: Commence at the end of the South 08° 33' 39" East 1,055.56 foot line of the aforementioned Parcel No. 16-1, also the true point of beginning; from said point of beginning continue South 08° 33' 39" East along the east right of way line of State Route La. 63 a distance of 144.45 feet to a point; thence proceed North 01° 25' 16" East a distance of 146.63 feet to a point; thence South 81° 32' 04" West a distance of 25.42 feet to the point of beginning and containing 0.042 of an acre. “PARCEL NO. 18-1: Commence at a point which marks the Southeast corner of Section 6, Township 7 South, Range 5 East, Livingston Parish, Louisiana, and proceed North 00° 30' 30" West along the line between said Section 6 and Section 5 a distance of 5,186.89 feet to the true point of beginning; from said point of beginning proceed South 89° 07' 14" West a distance of 1,578.82 feet to a point and corner; thence North 05° 18' 07" West a distance of 51.92 feet to a point; thence North 04° 41' 38" West a distance 248.78 feet to a point and corner; thence proceed North 89° 07' 14" East a distance of 1,602.03 feet to a point on the line between Section 31 and Section 32, Township 6 South, Range 5 East Livingston Parish, Louisiana; thence continue North 89° 07' 14" East a distance of 1,547.67 feet to a point; thence proceed along the arc of a curve to the left (the radius of which curve is 11,309.16 feet and the long chord of which bears North 86° 48' 31" East, 912.44 feet) a distance of 912.68 feet to a point; thence North 84° 29' 48" East a distance of 249.64 feet to a point on Vendor’s boundary line common with the property of Maudie Simeon Duhe Zeigler and corner; thence proceed South 00° 46' 22" East along said boundary line a distance of 242.96 feet to a point and corner; thence North 89° 07' 15" East along the township and section line a distance of 717.-78 feet to a point; thence proceed South 84° 29' 48" West a distance of 945.04 feet to a point; thence proceed along the arc of a curve to the right (the radius of which curve is 11,609.28 feet and the long chord of which bears South 86° 48' 31" West, 936.65 feet) a distance of 936.90 feet to a point; thence South 89° 07' 14" West a distance of 1,550.33 feet to the point of beginning and containing 30.102 acres.

“0.28 acre of land being a strip or parcel of land 40 feet by 300 feet, more or less, being that part of a parish road bounded on the East by the parcel of land designated as 18-1 in the foregoing description and on the West by the parcel of land designated as 16-1 in the foregoing description, all in Section 31, T6S, R5E and Section 6, T7S, R5E, Livingston Parish, Louisiana.”

Costs are to be paid by appellants.

AFFIRMED.

      . The State was not made a party to this proceeding. Needless to say, the State is unaffected by any adjudication between these parties. Badeaux v. Pitre, 382 So.2d 954 (La. 1980).

      . Formerly, LSA-R.S. 9:5806.

      . “It shall be conclusively presumed that any transfer, conveyance, surface lease, mineral lease, mortgage or any other contract or grant affecting land described as fronting on or bounded by a waterway, canal, highway, road, street, alley, railroad or other right of way, shall be held, deemed and construed to include all of grantor’s interest in and under such waterway, canal, highway, road, street, alley, railroad, or other right of way, whatever that interest may be, in the absence of any express provision therein particularly excluding the same therefrom; provided, that where the grantor at the time of the transfer or other grant holds as owner the title to the fee of the land situated on both sides thereof and makes a transfer or other grant affecting the land situated on only one side thereof, it shall then be conclusively presumed, in the absence of any express provision therein particularly excluding the same therefrom, that the transfer or other such grant thereof shall include the grantor’s interest to the center of such waterway, canal, highway, road, street, alley, railroad, or other right of way; provided further, however, that no then existing valid right of way upon, across or over said property so transferred or conveyed or so presumed to be conveyed and no warranties with respect thereto shall be in any manner or to any extent impaired, prejudiced, or otherwise affected by any of the terms and provisions of this Part or because of the failure of such grantor or transferror to therein make special reference to such right of way or to include or exclude same therefrom.”


author: EDWARDS, Judge.

text:
    Keith BALL v. FORD MOTOR COMPANY and Richards Ford, Inc.
    No. 14408.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.

      David M. Vaughn, John Dale Powers, Baton Rouge, for plaintiff-appellant, Keith Ball.
    Joseph E. Juban, Baton Rouge, for defendant-appellant, Richards Ford, Inc.
    A. S. Easterly, III, Baton Rouge, for defendant-appellee, Ford Motor Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This appeal involves a suit in redhibition for rescission of a sale of an automobile. The trial court ordered a reduction in the purchase price. We amend the trial court’s judgment and affirm.

FACTS

On September 1, 1978, Keith Ball purchased a 1978 Ford Thunderbird from Carl Millett for $7,300.00. Millett had purchased the automobile new from Richards Ford about three months earlier. The automobile was equipped with a “T-top”, which consisted of two removable glass panels in the roof. When Ball purchased the Thunderbird from Millett, it had been driven for approximately 4,100 miles.

On the day after purchasing the Thunderbird, Ball took it to a commercial car wash facility. At that time he noticed a small water leak in the area of the T-top. Ball brought the automobile to Richards Ford to have the leak repaired. When Richards returned the automobile to Ball the leak was a little worse. Despite repeated attempts, Richards Ford was unable to remedy the leak. Ball brought the car in at least ten times for repair, but the leak progressively worsened. Testimony presented at trial indicates that the T-top leaks so extensively that the automobile cannot reasonably be used in inclement weather because the occupants of the car become drenched.

On December 21, 1979, Ball filed suit against Richards Ford, Inc. and Ford Motor Company, seeking rescission of the sale of the automobile, damages, and attorney fees. Both Richards Ford and Ford Motor Company answered Ball’s petition, denying the allegations made therein. Additionally, Richards Ford filed a third party demand against Ford, seeking indemnity from the manufacturer for any sum which Richards might be ordered to pay Ball. At the time of trial, the automobile had approximately 34,000 miles on it. Additionally, the automobile was involved in an accident the week before trial, resulting in estimated damage slightly in excess of $1,000.00.

The trial judge concluded that reduction of the purchase price, rather than rescission of the sale, was the appropriate remedy. The court ordered a reduction in the purchase price of $3,000.00 and rendered judgment in favor of plaintiff against Richards Ford for that amount. All claims against Ford Motor Company were dismissed because the trial court was not satisfied from the evidence that Ford was responsibile for the severe leaking in the T-top. The court noted that the small leak should have been easily correctable but got much worse because Richards Ford was unable to repair it satisfactorily.

Richards Ford has suspensively appealed the judgment of the district court. Richards asserts that the trial court erred in allowing reduction in the purchase price because there was no proof of the existence of the defect at the time of the sale from Richards to Millett. Alternatively, Richards contends that the trial court erred in dismissing its third party demand against Ford for indemnity and in granting a reduction of price disproportionate to the actual loss of utility or inconvenience in the use of the automobile.

Ball answered this appeal contending that the appropriate remedy was rescission of the sale rather than reduction in the purchase price. Alternatively, Ball sought an increase in the amount of the reduction of price. Additionally, Ball took a devolu-tive appeal, asserting that the trial court erred in not holding Ford Motor Company responsible for rescission of the sale, return of the purchase price, damages and attorney fees.

DEFECT AT THE TIME OF SALE

A successful plaintiff in a redhibi-tory action must prove that there was a defect in the thing at the time of sale. LSA-C.C. art. 2530 provides as follows:

“The buyer who institutes the redhibi-tory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

Richards Ford and Ford Motor Company contend that plaintiff failed to prove the existence of a defect at the time of the sale from Richards Ford to Carl Millett. Millett testified at trial that the car never leaked in the three months that he owned it. Defendants assert that this establishes that there was no defect at the time of the sale by Richards.

The existence of a redhibitory defect is a question of fact and the trial judge’s conclusion should not be disturbed in the absence of manifest error. Clinkscales v. Superior Pontiac—GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978). The trial judge’s factual finding that the defect existed at the time of the sale from Richards Ford to Millett is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The leak appeared in the T-top slightly more than three months after the original sale. If a defect appears soon after the thing is put into use a reasonable inference arises that the defect existed at the time of the sale. Rey v. Cuccia, 298 So.2d 840 (La.1974); Moran v. Willard E. Robertson Corporation, 372 So.2d 758 (La.App. 4th Cir. 1979). It is significant to note that the testimony at trial revealed that Millett had never taken the automobile to a commercial carwash, yet it was in such a place that Ball first noticed the leak in the T-top. Our review of the record reveals that the trial court’s finding of the existence of a defect at the time of sale is not manifestly erroneous.

RESCISSION OR REDUCTION IN THE PRICE?

Ball maintains that the trial court erred in ordering a reduction in the purchase price rather than a rescission of the sale. He relies on LSA-C.C. art. 2520, which provides as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

Ball contends that rescission is required here because he has demonstrated that the T-top leaks so much that it must be supposed he would not have purchased the automobile had he known of the vice.

LSA-C.C. art. 2543 provides in pertinent part as follows:

“But in a redhibitory suit, the judge may decree merely a reduction of the price.”

A trial court is vested with the discretion to award a reduction in the purchase price rather than rescind the sale in a suit based on redhibition. See Moran v. Willard E. Robertson Corporation, supra; Savoie v. Don Siebarth Pontiac, Inc., 345 So.2d 210 (La.App. 3rd Cir. 1977).

No showing has been made that the trial court abused its discretion in awarding a reduction in the price instead of rescinding the sale. As the trial judge noted, the leak was initially small but progressively grew worse. Furthermore, the record reveals that Ball had derived substantial use from the Thunderbird, having driven it for approximately 30,000 miles. These factors support the trial court’s conclusion that reduction in the purchase price was the appropriate remedy.

AMOUNT OF REDUCTION

Both Richards Ford and Keith Ball contend that the trial court erred in fixing the amount of the reduction in price. Richards asserts that the ordered reduction is too high, while Ball maintains that it is too low.

The diminution in price which the trial court may decree under LSA-C.C. art. 2541 et seq. is the difference between the sale price and the price a reasonable buyer and seller would have agreed upon if they had known of the defect. Lacey v. Baywood Truck & Machinery, 381 So.2d 863 (La.App. 1st Cir. 1980); Muller v. A. K. Durnin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La.App. 1st Cir. 1978); Guillory v. Pitre Ford Co., 345 So.2d 1274 (La.App. 3rd Cir. 1977); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974). Menville held that factors to be considered in calculating the reduction in price, in addition to the cost of repairs, include “the numerous problems, the frequent inconvenience associated with breakdowns and repairs of these problems, and the overall poor performance in relation to that expected.” See also, Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir. 1981).

The trial court ordered a reduction in the purchase price of $3,000.00. It stated that this considerable reduction was necessary because the automobile had a major problem, rendering it unusable in inclement weather. The record amply reflects the numerous times that Ball brought the car in for repairs and the inconvenience associated therewith. It also shows the expectations which plaintiff had when he purchased a Ford Thunderbird and the numerous problems caused by the leaking T-top. Neither Richards nor Ball have demonstrated that the trial court abused its discretion in setting the amount of the reduction in price. In the absence of any such showing, that portion of the trial court’s judgment is affirmed.

FORD MOTOR COMPANY’S LIABILITY TO BALL

The trial court dismissed all claims against Ford Motor Company because of its conclusion that Ford was not responsible for the severity which the leaking problem had attained. The court stated that the original small leak should have been easily correctable and got worse only because Richards Ford was unable to repair the Thunderbird satisfactorily. Ball’s appeal maintains that Ford Motor Company should also be liable to him.

We conclude that the trial court erred in dismissing all claims against Ford Motor Company. This case does not involve a situation where the dealer’s failure to repair is its fault alone. Ford assumed an active role in the attempts to repair Keith Ball’s Thunderbird and should also be responsible for the failure of those attempts.

The record reveals that Ford Motor Company was directly involved in the attempted repair process. The Richards Ford repairmen testified at trial that their work on the T-top followed the procedures recommended in service manuals and technical service bulletins distributed by Ford Motor Company. After its initial inability to repair the water leak, Richards Ford requested assistance from Ford Motor Company. Additionally, Keith Ball made a formal complaint to Ford about Richards’ inability to fix the leak. Ball’s complaint triggered the involvement of R. M. Gowland, Ford’s zone service representative. Gowland inspected the work done by Richards’ employees and certified that it was performed in accordance with the instructions in the Ford technical service bulletins and service manual. Furthermore, Gowland requested technical assistance from the Ford design engineer who designed the T-top, but never received any response.

The trial court’s conclusion that Ford is not responsible for the severity of the leak as it now exists is clearly wrong. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra. The repairs were conducted in accordance with procedures prescribed by Ford. Ford Motor Company personnel inspected the work and approved it as being in conformity with these procedures. Richard’s failure to repair the water leak in Ball’s automobile is a failure for which Ford should also be responsible. The judgment of the trial court is amended to make Ford solidarily liable along with Richards to Ball for the $3,000.00 reduction in the purchase price.

Furthermore, Ball is entitled to recover attorney fees from Ford. LSA-C.C. art. 2545 provides as follows:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.”

Attorney fees are awardable when the trial court orders a reduction in price rather than rescission of the sale. A seller is liable for attorney fees only if he has knowledge of the vice of the thing he sells.

A manufacturer is presumed to know of the defects in the thing that he sells. Rey v. Cuccia, 298 So.2d 840 (La.1974); Marsh v. Winnebago Industries, Inc., 394 So.2d 670 (La.App. 4th Cir. 1981); Muller v. A. K. Dumin Chrysler-Plymouth, Inc., 361 So.2d 1257 (La.App. 1st Cir. 1978); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977). Ford, as manufacturer of the Thunderbird, is presumed to have had knowledge of the defect and is liable for attorney fees.

The record contains a time sheet submitted into evidence by plaintiff’s attorney. On the basis of that time sheet, and the record, which reveals the complexity of the legal issues, the amount of preparation required, and the degree of expertise shown by plaintiff’s counsel, Ford is ordered to pay the plaintiff, Keith Ball, $1,000.00 in attorney fees. Richards Ford is not liable to Ball for attorney fees because no showing was made that it had knowledge of the defect and the presumption applied to Ford is inapplicable to Richards, a non-manufacturer.

FORD MOTOR COMPANY’S LIABILITY TO RICHARDS FORD

LSA-C.C. art. 2531 provides in pertinent part as follows:

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

As noted above, the trial court dismissed Richards’ claim against Ford on the ground that Ford was not responsible for the severe water leak which has come to exist in Ball’s Thunderbird. Ford argues in support of this conclusion. Ford maintains that a manufacturer should not be liable to a seller under article 2531 when the defect is due to the seller’s inability to repair.

This case does not present an instance where the seller refuses to repair the thing or does so in a substandard manner. See, e. g. Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir. 1981). Richards Ford made numerous good faith attempts to repair the water leak. The evidence indicates that Richards’ repair work was performed to Ford’s specifications and was inspected and approved by Ford’s zone service manager. Clearly, Richards is entitled, under the provisions of LSA-C.C. art. 2531, to reimbursement from Ford for any losses sustained by it. Judgment is rendered in favor of Richards Ford and against Ford Motor Company for any sum of money which Richards pays to Keith Ball as a result of the judgment rendered against it.

For the foregoing reasons, the judgment of the district court is amended and affirmed.

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Keith Ball, and against defendants, Richards Ford, Inc. and Ford Motor Company, in solido, in the sum of Three Thousand and no/100 Dollars ($3,000.00) together with interest thereon from date of judicial demand until paid.

It is further ordered that there be judgment in favor of plaintiff, Keith Ball, and against defendant, Ford Motor Company, for attorney fees in the amount of One Thousand and no/100 Dollars ($1,000.00) together with interest thereon from date of judicial demand until paid.

It is further ordered that there be judgment in favor of third party plaintiff, Richards Ford, Inc., and against third party defendant, Ford Motor Company, for any and all sums which Richards Ford shall pay to plaintiff, Keith Ball, in satisfaction of the judgment rendered hérein.

It is further ordered that defendant, Ford Motor Company, pay all costs of these proceedings, both at trial and on appeal.

AMENDED AND AFFIRMED.

      . Counsel for plaintiff attempts to rely on the presumption of LSA-C.C. art. 2530. He maintains that since the leak manifested itself within three days of the sale from Millett to Ball, it must be presumed to have existed at the time of sale. This argument would have been correct if the sale which plaintiff was seeking to rescind was the sale made by Millett. However, plaintiff seeks to rescind the sale made by Richards, which occurred three months before the leak appeared. Plaintiffs argument that the presumption of article 2530 applies is, therefore, totally devoid of any merit.

      . The trial judge also stated that reduction in the price, rather than rescission, was appropriate because the wreck in which the automobile was involved made it impossible to return the parties to their previous position. This reason alone would not be sufficient to preclude rescission of the sale. The damage to the automobile was relatively minor and the evidence established the cost of repair. Rescission of the sale could have been achieved by deducting the cost of repairs from the amount of the purchase price.

      . On appeal, Richards has not sought attorney fees from Ford, but has limited its claims to reimbursement for any sum which it may owe Ball. Even if attorney fees had been requested, we would be unable to award them because Richards failed to introduce any evidence as to the amount of work performed by its attorney.


author: KLEES, Judge.

text:
    James F. NASH, Sr. v. Floyd S. LA FONTAINE.
    No. 12491.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1981.

      Robert M. Hearin, Jr., New Orleans, for petitioner-appellant.
    Charles N. Miller, Jr., Kronlage, Ditt-mann & Maselli, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

On March 25, 1977, plaintiff-appellant, James F. Nash, Sr., orally agreed to lease the premises at 6224 North Rampart Street in New Orleans, Louisiana from Defendant, Floyd S. La Fontaine, beginning April 1, 1977, at a rate of $75.00 per month. A rent deposit of $50.00 was paid by Nash to La Fontaine and Nash thereafter moved into the premises.

Nash claimed that he began to smell a foul odor about two weeks after moving into the residence. He contacted the Board of Health who sent a Mrs. Harris to investigate. Mrs. Harris discovered some standing water and a broken pipe but did not notice any odor.

The defendant was notified about the problem and sent a plumber to the residence to repair the broken pipe.

The plaintiff-appellant vacated the premises on June 17, alleging that the odor caused him to leave.

A suit was then filed seeking the return of his deposit, damages, and attorney fees under R.S. 9:3251 et seq., and damages under R.C.C. Articles 2692-2695 and 2322. Plaintiff also claimed that the defendant violated the Louisiana Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401 et seq. Defendant answered and filed a reconventional demand seeking damages for the deterioration of his rental property.

Trial on the merits was held and judgment was rendered in plaintiff’s favor, but only on his claim under R.S. 9:3251 et seq. for the return of his $50.00 rent deposit, $200.00 in statutory damages and $500.00 in attorney fees. His other claims were rejected and the reconventional demand was dismissed.

The plaintiff appeals from this judgment renewing his claims under C.C. Art. 2692-2695 and 2322 and seeking an increased attorney fee. He has apparently abandoned his claim under the Consumer Protection Law. Defendant has neither appealed nor answered the appeal.

The trial court rejected the plaintiff-appellant’s claim under RCC Art. 2692 that the defendant failed to provide him with a place fit for its intended use and that his peaceable possession was disturbed.

The burden which rests upon the plaintiff to prove such claims is that the problem or defect complained of was of a nature serious enough to warrant cancellation of the lease or that the lessor’s actions seriously disturbed the lessee in his possession and full use and enjoyment of his premises. Berry v. Thompson, 297 So.2d 484 (La.App.2nd Cir. 1974); Robinson v. McKean, Inc., 389 So.2d 451 (La.App.2nd Cir. 1980); and Broussard v. O’Bryan, 270 So.2d 127 (La.App.3rd Cir. 1972) writ denied 272 So.2d 374 (La.1972).

In Freeman v. G. T. S. Corp., 363 So.2d 1247 (La.App. 4th Cir. 1978), this Court held that the trial judge had properly concluded the premises were totally unsuitable for occupancy by the tenant, where it was undisputed that serious leaks existed in the roof causing ceiling damage and falling plaster and all efforts by the landlord to correct the problem were futile. McCrory Corp. v. Latter, 331 So.2d 577 (1st Cir. 1976), cited by appellant involved a pipe located in the basement area adjacent to the property bursting and causing considerable water damage to plaintiff’s stock, supplies, and equipment. This again was a substantial defect causing serious damage.

Whether or not the defendant breached his obligation under Art. 2692 and “constructively evicted” the plaintiff was a decision based upon conclusions drawn from the facts and a credibility evaluation of the witnesses. Such a result as the one reached in this case, i.e., that Mr. Nash failed to meet the burden of proof incumbent upon him as the plaintiff, cannot be reversed by this court if the record supports the reasonable inference of fact and reasonable evaluations of credibility made by the trial court. Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

Here the plaintiff testified that the odor was so severe that it forced him to leave the premises. However, he lived in the home for approximately nine weeks after he first became aware of the odor. Asked if he complained about the odor, he said he sent defendant a note “with one of the checks asking him to repair it”. He also testified that the odor would not be noticeable when the fan was on. His own witness, Mrs. Harris, the city inspector who examined the broken pipe, indicated that she could not recall smelling any odor when she examined the premises. Finally, Mr. Nash admitted that his neighbor in the “shotgun” double, Mrs. Johnson never complained of any odor or felt the need to move from the premises.

Thus, the record clearly demonstrates that there either was no odor, or, if there was any, it was not of a serious nature.

Plaintiff’s case was based primarily on his own testimony which the trial judge apparently did not believe. Such a credibility call by the trial court will not be disturbed on review in the absence of manifest error.

The claims of the appellant under Articles 2695 and 2322 were also rejected by the trial court.

Here again the trial judge found that the plaintiff failed to meet his burden of proof and these findings will not be disturbed by this court on review. Arceneaux v. Domingue Insurance Co., 365 So.2d 1330 (La.1978).

Appellant contends that the attorneys fees awarded in this matter were inadequate.

In Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975) this court recognized the following as factors to be considered when determining an award for attorney fees:

“There are many factors which enter into the fixing of an attorney’s fee. While there is no specific formula and each case rests on its own facts, generally, the considerations are: The responsibility incurred; the extent and nature of the work performed; and the legal know-how, attainments and skill of counsel. Expert testimony may be used as a guide but it is not necessarily controlling. Of particular importance here is the rule that where the services are rendered under the eyes of the court, the trial judge is fully able to estimate and adjudge the value thereof.”

The present case only requires that this court consider whether the attorney fees awarded under R.S. 9:3253 were reasonable. The other claims, having been unsuccessful, do not lend themselves to consideration by the court.

In his reasons for judgment the trial court stated ...

“... and I’m going to assess the attorney’s fees based upon the nature of the case and the importance of the case and the amount of time counsel spent in preparing this type of case, this is not a trial for a million dollars in Civil District Court therefore I feel $500.00 is adequate attorney fees...”

It is quite clear that the trial judge considered the facts of this particular case and the factors set out by this Court in Sokol v. Bob McKinnon Chevrolet, Inc., supra.

The trial judge has considerable discretion in the area of awarding attorney fees and since the present case does not indicate an abuse of that discretion the award of $500.00 for attorney fees should be affirmed.

Accordingly, for the reasons expressed herein the judgment of the trial court is affirmed.

AFFIRMED.