author: EDWARDS, Judge.

text:
    Warren J. BEDWELL v. Bessie Glynette Hodges BEDWELL.
    No. 14155.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Bart Eaton, Baton Rouge, for plaintiff-appellant Warren J. Bedwell.
    Clinton Hyatt, Jr., Baton Rouge, for defendant-appellee Bessie Glynette Hodges Bedwell.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Warren J. Bedwell, brought suit against Bessie Glynette Hodges Bed-well seeking to set aside on the basis of lesion the community property agreement they entered into as a settlement of the former community of acquets and gains existing between them. Plaintiff appeals a judgment dismissing his demands at his costs. We reverse and render.

At trial, it was agreed by joint stipulation that the community assets were worth $66,-014.13, that debts of the community amounted to $43,346.52, and that the true value (net worth) of the community was, therefore, $22,667.61.

For determining whether lesion has occurred, the applicable codal provisions are LSA-C.C. Arts. 1860, 1861 and 1398, which provide as follows:

Art. 1860.
“Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy given for this injury, is founded on its being the effect of implied error or imposition; for, in every commutative contract, equivalents are supposed to be given and received.”
Art. 1861.
“The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or (of) the parties;
2. In sales of immovable property, the vendor may be relieved, if the price given is less than one-half of the value of the thing sold; but the sale can not be invalidated for lesion to the injury of the purchaser.”
Art. 1398.
“They may even be rescinded, on account of lesion; and, as equality is the base of partitions, it suffices to cause the rescission, that such lesion be of more than one-fourth part of the true value of the property.”

Counsel for appellee urged, and the trial court agreed, that lesion occurs only when a party receives less than one-fourth his share of the partition, in this case, one-eighth of the entire community, or $2,833.45. The trial court then determined there had been no lesion since plaintiff had received $13,-050.00, more than one-eighth of the community’s net value. Plaintiff’s assumption of $12,486.46 in community debts was not considered.

This analysis is clearly erroneous.

The proper way to determine lesion beyond one-fourth is to first determine the property’s true value and then to calculate whether a party received three-fourths of his share. LSA-C.C. Art. 1398. Pitre v. Pitre, 162 So.2d 430 (La.App. 3rd Cir. 1964), affirmed 247 La. 594, 172 So.2d 693 (1965).

That Pitre was affirmed on grounds other than those stated by the court of appeal is of no moment since the appellate court’s analysis was correct. Affirmation on other grounds does not diminish the persuasive effect of correct legal analysis.

Insofar as certain language in Watkins v. Watkins, 376 So.2d 1316 (La.App. 1st Cir. 1979), seems to support appellee’s contention that a partition is affected by lesion when a party receives less than one-fourth his share, we find the language purely gratuitous. The party claiming lesion in Watkins had only received $500 out of property worth $14,536. Under any analysis, lesion was present.

Despite appellee’s contention, language in Watkins does not say, nor is it logical or proper to say, that the indebtedness assumed by one party in a partition is not deducted from the gross value of the property received to determine the actual net value that the party assuming the debt received for purposes of determining whether lesion exists. Watkins merely prohibits a double credit to the party assuming a community debt.

Thus, in the present case, even if the trial court’s mode of calculating lesion were correct, lesion should have been found since plaintiff had to be given credit for community debts which he assumed.

In summary, half the true value of the community at issue was worth $11,333.80. Plaintiff had to receive at least $8,500.35, or three-fourth’s of that half.

Plaintiff received property with a gross value of $13,050.00. Plaintiff assumed community debts of $12,486.46. Plaintiff’s net share of the partition was, therefore, only $563.54, far below the required amount. Clearly, the settlement was affected by lesion.

For the foregoing reasons, the judgment appealed from is annulled and reversed. It is hereby adjudged, ordered and decreed that the community property settlement entered into on February 13, 1979, by Warren J. Bedwell and Bessie Glynette Hodges Bed-well be, and the same is, hereby set aside and found to have no legal effect. All costs, both trial, and appellate, are to be paid by Bessie Glynette Hodges Bedwell.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: LEAR, Judge.

license: Public Domain

text:
    Gilbert BURATT v. CAPITAL CITY PRESS, INC.
    No. 14156.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Victor L. Marcello, Donaldsonville, for plaintiff and appellant.
    Frank M. Coates, Jr., Baton Rouge, for defendant and appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Appellant, Gilbert Buratt, appeals a judgment of the trial court maintaining defendant’s exception of no cause of action and dismissing appellant’s suit with prejudice.

Appellant filed suit to recover damages based upon an alleged defamatory newspaper article published by defendant. Thereafter, defendant filed an exception of no cause of action, which was maintained by the trial court. While the defendant’s exception states as its grounds that: “plaintiff is a public official and .... the plaintiff’s petition fails to allege ‘malice’ of the sort defined in New York Times v. Sullivan the briefs submitted by the parties appear to focus on the issue of whether the words alleged to have been published by defendant could, in fact, be construed as defamatory. Because no written reasons for judgment were issued by the trial court, we will review both aspects of the exception.

The threshold issue in any libel action is whether or not the statements made are defamatory or libelous. Brown v. News-World Publishing Corp., 245 So.2d 430 (La.App.2nd Cir., 1971). In defining a defamatory statement, the court in Brown, supra, stated:

“A statement is defamatory when it tends to expose a person to contempt, hatred, ridicule, or obloquy; or has a tendency to deprive him of the benefit of public confidence or injure him in his occupation; and includes almost any language which upon its face has a natural tendency to injure the person’s reputation, either generally or with respect to his occupation. The intent and meaning of an alleged defamatory statement must be gathered not only from the words singled out as libelous but from the context as well, and the true meaning must be ascertained from a consideration of all parts of the statement as well as the circumstances of its publication. The test is the effect the article is fairly calculated to produce and the impression it would naturally engender in the minds of the average persons among whom it is intended to circulate.”

All facts that are pertinent and well-pleaded in the petition are admitted for the purpose of consideration of the exception of no cause of action. Brown, supra.

Concerning the words published by defendant, which appellant alleges to be defamatory, the petition, in pertinent part, alleges the following:

“2.
“During the last 11 years, your petitioner has served as a member of the Police Jury of the Parish of Ascension. On July 8, 1979, defendant published in the Sunday Advocate [defendant’s newspaper] an article entitled ‘Records Reveal Gifts to Police Jury Members.’
“3.
“. . . . the title to the article is prefaced with the words ‘ “ ‘Gestures of Friendship in Ascension.’ ” ’ The articles (sic) states in pertinent part:
“ ‘Barber also said that his firm was asked to overlay roadbeds in a subdivision in Galvez owned by Police Juror and Parish Manager Buratt and a partner.
“ ‘Buratt said he never developed any property in the area.
“Barber said the company turned down the request since tests showed the roadbed was ‘insufficient for overlay purposes.’ He said Buratt’s unnamed partner later said he would pay whatever price was necessary since he had been turned down in a number of times. He said the work was eventually performed by someone else.”

Appellee contends that the words contained in the body of the news article are not in themselves defamatory. This may be true. However, appellant has alleged in his petition that the headline or title of the article and a preface connect the idea of “gestures of friendship” and “gifts to police jury members” with the statements in the body of the article concerning appellant, and that the overall implication of these statements is defamatory. We agree.

The statements naturally imply conduct by appellant, which is, at least, an unethical use of his public position, and the possible commission of a crime by him. When taken in their entirety, these words, together with the reasonable inferences to be drawn from them, would tend at the least to deprive appellant, a public official, of the benefit of public confidence and injure him in his occupation.

As to the legal issue of malice, our Supreme Court, in Kidder v. Anderson, 354 So.2d 1306 (La.1978), stated:

“A public official may not recover damages for a defamatory statement, even if false, relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Company v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964).

In Paragraph 4 of his petition, appellant states that “the information supplied in the above excerpt [the news article] is completely contrary to fact; ... . ” and the remainder of that paragraph alleges facts to support this claimed falsity. Paragraphs 5 and 6 of the petition allege that the statements were published with the “express purpose of slandering and libeling your petitioner and destroying his [appellant’s] reputation in the community and his political career.” Further Paragraph 9 alleges that “as relates to petitioner, said series of articles have been untrue and un-substantiated, all to the knowledge of the said reporters of defendant.” (Emphasis added.)

In the recent case of Adserv Corporation v. Lincecum, 385 So.2d 432 (La.App.1st Cir., 1980), as in this instant case, the defendant held a qualified privilege, and thus, in order to recover, it was necessary for the plaintiff to allege malice. In Adserv, supra, we stated that:

“The petition alleges that the statements made by defendant were made ‘with knowledge of their falsity or with reckless disregard for the truth of same for political reasons’ and were made by defendant with actual malice. Since these allegations, if proved, would defeat the qualified privilege, the trial judge was in error in sustaining the exception of no cause of action.”

Appellant’s petition clearly sets forth that the complained of statements were false, and that their falsity was known by defendant. Appellant further alleges in his petition that the publication of these statements by defendant was intended to destroy his reputation and career. Thus, the allegations of appellant’s petition clearly allege malice and state a cause of action under the New York Times, supra, rule. Adserv Corporation v. Lincecum, supra.

For the above reasons, the judgment below is hereby reversed and this cause is hereby remanded to the trial court for further proceedings in conformity herewith. Costs of this appeal are to be paid by defendant-appellee, Capital City Press.

REVERSED AND REMANDED.

COVINGTON, J., concurs in the result.


author: CHIASSON, Judge.

text:
    Agnes Walker NAVARRE et al. v. Robert E. McGILL, W. L. Ryder and Richard Friedberg.
    No. 14157.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Josephe Onebane, John G. Torian, II, Randall C. Songy, Lafayette, for plaintiffs-appellees Agnes Walker Navarre, Steve Milton Navarre, Bruce Wayne Navarre, Bennett Wade Navarre and Marcia Agnes Navarre.
    W.L. Ryder in pro. per.
    Glen P. Marcel, Baton Rouge, for defendants-appellants Robert E. McGill and Richard Friedburg.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Plaintiffs, Agnes Walker Navarre and her children, filed suit against the defendants Robert E. McGill, W. L. Ryder and Richard Friedberg, for the total amount of a promissory note executed by the defendants in favor of Maxie J. Navarre.

All three defendants signed as makers of a promissory note dated September 6, 1974 which designated Maxie J. Navarre as payee. The note became due on December 81,1974. Maxie J. Navarre died on November 25, 1974, and his heirs filed suit on May 13, 1975, to collect the $30,000 due on the note, plus 8% interest and 20% attorney’s fees.

The defendants answered the petition asserting affirmatively the defense of failure of consideration. In addition, W. L. Ryder and Richard Friedberg filed a reconventional demand against the plaintiffs asserting that Maxie J. Navarre and the plaintiffs breached an agreement to buy and sell 1,553 acres of land executed between Navarre and Ryder. These defendants seek damages in the amount of $490,348.94.

The note was a part of a series of transactions that took place in 1974. A complete review of the events leading up to the signing of the note is necessary for an understanding of the issues presented.

Robert McGill owned approximately 12,-500 acres of farm land in Avoyelles Parish in 1974. Because of financial difficulties, McGill started to sell some of the land. In July of 1974, McGill and Maxie Navarre entered into a contract to buy and sell approximately 1,550 acres of land. A supplemental agreement entered into later that day by the two men reduced the acreage to 800 acres. Navarre deposited $5,000 toward the purchase price of the property.

Finally on July 24,1974, a contract to buy and sell 1,216 acres was consumated by the parties with the purchase price fixed at $655,000. Mr. Navarre deposited with B. C. Bennett, Jr., an attorney in Marksville, the sum of $130,000 to be applied to the purchase price.

On September 6,1974, a number of transactions took place which included all of the parties. The contract to buy and sell previously entered into between McGill and Navarre was cancelled for the consideration of $10. The $130,000 held in escrow by Bennett was returned to Navarre in two checks, one in the amount of $100,000 and the other in the amount of $30,000.

This cancellation enabled McGill, who was still experiencing financial problems, to sell all of his land to Baton Rouge Production Credit Association (PCA), which held a second mortgage on the property.

PCA then granted an option to purchase the property to W. L. Ryder. Ryder paid $71,910.49 in cash for the option and obligated himself to pay three monthly installments of approximately $21,000 each to maintain the option.

Next Ryder entered into an option agreement with Navarre whereby he agreed to sell one of three tracts of land to Navarre. The option did note that title did not presently vest in Mr. Ryder — but in PCA — but that Ryder did have an option from PCA to buy the land. Mr. Navarre was to choose the tract he intended to purchase by October 1, 1974. As stated in the agreement, “the consideration of this agreement is the cancellation by Navarre of that certain agreement to buy and sell between Robert E. McGill, Jr., and Maxie Navarre, dated July 24, 1974.” No cash deposit is reflected as being part of this agreement. The defendants contend that a check in the amount of $30,000 written by Navarre to Ryder was a part of this transaction. An agreement concerning the mineral rights to the tracts of land was also entered into that day by the parties.

All of the above described documents executed on September 6, 1974, were passed before B. C. Bennett, Jr., a notary public. Four other documents bear a September 6, 1974, date and are pertinent for an understanding of the overall scheme.

The promissory note, the basis for this suit, bears the September 6, 1974, date, the signatures of all three defendants and is in the amount of $30,000. A check in the like amount made out to Ryder had a September 6,1974, date as well. On the lower left hand corner of the check was the word “Loan.”

Although not in authentic form, a letter dated September 6, 1974, from Ryder to Richard Friedberg purported to transfer a one-half interest in the PCA option to Friedberg. The consideration for this one-half interest was $102,500.

An agreement between the three defendants was also entered into that date whereby all three would have an interest in the PCA option. Ryder and Friedberg agreed to pay $185,777.85 worth of debts for Mr. McGill. In exchange, Mr. McGill transferred to Ryder and Friedberg his rights in an option he had with J. Harry Henderson to buy some property. In addition, Mr. McGill would contact certain interested purchasers for the land the joint venture was buying.

The defendants contend that the check written by Navarre to Ryder was a deposit on the option agreement. The plaintiffs aver that the check was a loan to Ryder and the other defendants since they needed money to complete all of the transactions of the day which involved paying some of McGill’s creditors and exercising the option with PCA. The check with the word “Loan” on it seems to buttress this version.

The entire scheme continued with F. A. Little, Jr., an attorney for Friedberg, writing a letter dated October 4, 1974, informing Navarre that he failed to exercise his option in selecting one of the tracts of land. Little informed Navarre that Ryder designated Tract 1 as the property to be transferred. A copy of the letter was sent to Mr. Navarre and to the three defendants.

A proposed agreement to purchase was submitted to Navarre which would have transferred the $30,000 he had loaned to the defendants into a deposit for the purchase agreement. After consulting with an attorney, Mr. Navarre declined this agreement with the $30,000 being considered a deposit.

Finally on November 19, 1974, an agreement to purchase and sell realty was entered into between Ryder and Navarre to buy 1,135 acres for $425 per acre. Fried-berg acted as Ryder’s agent under a power of attorney. There is no mention of any deposit for this agreement. The agreement obligated the seller to tender a legal, valid and merchantable title and to pay taxes for the past years before the vendee was obligated to purchase. The agreement again recognizes that title to the property vests in PCA, but that Ryder had an option to buy the land. A supplemental agreement was entered into that day in which Navarre would exchange 480 acres of land that he owned in Mississippi in lieu of paying a portion of the total purchase price.

On November 25, 1974, Maxie Navarre died leaving his wife and children as heirs. Shortly thereafter, Mrs. Navarre through a longtime friend, D. A. Moody, contacted Mr. McGill seeking a release from the purchase. According to both Mrs. Navarre and Mr. Moody, McGill orally agreed to such a release.

Suit was subsequently brought on the note by the plaintiffs contending that Max-ie Navarre loaned the defendants $30,000 for the joint venture to accomplish the overall scheme. They contend the note represented the loan. Defendants assert that the note is without consideration in that the $30,000 check was only a deposit for the option agreement of September 6,1974, and the purchase agreement of November 19, 1974. In addition, Ryder and Friedberg contend that Maxie Navarre and his heirs breached the agreement to buy by not purchasing the property.

W. L. Ryder, although properly served, failed to appear at trial. The trial court dismissed, with prejudice, his reconventional demand. In addition, judgment was rendered against Mr. Ryder on the main demand and no appeal has been taken from that judgment. We consider that judgment final.

The trial court also dismissed the recon-ventional demand of Richard Friedberg after the completion of the evidence holding that he was not a party to the option agreement executed between Ryder and Navarre. On the plaintiff’s main demand, the trial court found that Maxie Navarre had loaned $30,000 to the defendants by way of the check for the completion of the overall scheme. It found the loan was sufficient consideration for the note. In addition, it found since all the defendants had an interest in paying the debts of McGill and purchasing the option from PCA, there was consideration on the part of all defendants. It awarded judgment in favor of the plaintiffs for $30,000, plus interest at the rate of 8% and attorney’s fees in the amount of 20%.

Friedberg and McGill appealed the decision of the trial court. Although not listed as a specification of error, the defendants argue the trial court misconstrued their affirmative defense. They contend that there was a failure of consideration for the note instead of a lack of consideration. In support of their argument they cite the cases of X-L Finance Co. v. Wilson, 217 So.2d 467 (La.App. 1st Cir. 1968) and Sciortino v. Leach, 242 So.2d 269 (La.App. 4th Cir. 1970). (See also La. R.S. 7:28).

In those cases there was a failure of consideration because the cause for giving of the note never materialized. This would be a good defense in this case if the note was given as a deposit as contended by the defendants. The note would have been contingent upon the execution of an act of sale which never materialized. However, the trial court found that the note was actually for a loan made to the defendants so that they could pay the debts of McGill and pay the option to PCA. We agree with this finding.

This finding of fact is well supported by the evidence in the record. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The check written to Ryder had the word “Loan” written on it. This was a. new check written by Navarre instead of the $30,000 check Bennett had just written him. The check was endorsed by Ryder and deposited in Bennett’s escrow account which account was used to pay the debts of McGill associated with his property. Bennett testified that he considered the check to be a loan rather than a deposit. In addition, the option to buy and sell of September 6,1974, stated that the only consideration was the cancellation of the Navarre-McGill purchase agreement.

Under the Negotiable Instrument Law there is a presumption that the instrument was issued for valuable consideration and that every person whose signature appeared on the instrument had received value. La. R.S. 7:24. We further find that the consideration consisted of money actually loaned to the defendants to be used in paying the creditors of McGill and obtaining the option from PCA. La. R.S. 7:25.

Defendants also contend that the trial court erred in finding that Friedberg supplied money to pay the encumbrances on McGill’s property and to pay PCA for the option, as well as finding that the “defendants” needed $30,000 to close the deal, when only Ryder had an option from PCA. Friedberg testified that he wanted an interest in the property on September 5, 1974, after an inspection of the property. He stated that he and Ryder had reached an agreement in which he would advance Ryder the money for the transaction. It was this money along with the $30,000 check which was used to pay the debts and the option. Although only Ryder had the option with PCA, it is evident from the record that all three defendants were involved in this joint venture.

Defendant’s last contention is that the trial court erred in dismissing the recon-ventional demand of Friedberg and McGill. We take note that the reconventional demand was only filed on behalf of Ryder and Friedberg. Since the judgment is final as to Ryder, we need only to consider the contention of Friedberg. The gist of the demand is that Navarre and/or his heirs failed to execute the option to purchase agreement of September 6, 1974, and the purchase agreement dated November 19, 1974.

The option to purchase was transferred into the purchase agreement of November, 1974, when Ryder designated what tract of land he was going to sell Navarre. One of the conditions of the purchase agreement was not satisfied which would have compelled Navarre or his heirs to buy the property. Title to the property was still vested in PCA although Ryder had an option. It was a condition of the agreement that the vendor tender a legal, valid and merchantable title to the vendee. Friedberg testified that title was never tendered to Navarre or his heirs.

The language of the contract stated that in default of this condition, “this contract shall terminate and both parties shall be relieved of all obligations hereunder without liability or responsibility of any kind or character.” Since title was never tendered to the vendee, a requisite condition was never fulfilled and the contract was thus breached relieving both parties of all obligations thereunder. The dismissal of the reconventional demand was therefore correct.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Agnes Walker Navarre was the surviving spouse of Maxie J. Navarre. At the time of trial she remarried and is now Agnes Walker Richard. She is suing individually and as natural tutrix of Marie Agnes Navarre.

      . The children of Maxie J. Navarre include Steve Milton Navarre (suing on his own behalf); Bruce Wayne Navarre (suing on his own behalf); Bennett Wade Navarre (was a minor at the time the suit was filed but later was added as a proper party plaintiff); and Marie Agnes Walker Navarre (represented by her natural tutrix Agnes Walker Navarre). Steve Milton Navarre died during the pendency of this action and his mother, brothers and sister were substituted as proper parties to this action.

      .Since this note is dated September 6, 1974, we must consult the Negotiable Instrument Law, La. R.S. 7:1, et seq., rather than the Commercial Law, La. R.S. 10:1, et seq. See Fidelity Nat. Bank of Baton Rouge v. Mills, 351 So.2d 800 (La.App. 1st Cir. 1977).


text:
    PARISH CONCRETE, INC. v. FRITZ CULVER, INC., et al.
    14159.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      A. Wayne Buras, Covington, for plaintiff-appellee.
    T. George Delsa, New Orleans, for defendants-appellants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff-appellee, Parish Concrete, Inc. (Parish), filed suit against defendants-appellants, Fritz Culver, Inc. (Culver) and Bill Todd d/b/a Todd Construction (Todd), in order to recover payment for materials (concrete) allegedly sold by Parish to Todd to be used in the construction of a building for and located on the property of Culver. In addition to the value of the supplies, Parish sought twelve percent interest and twenty-five percent as attorney’s fees, according to the contract between Parish and Todd. Culver filed a third party action against Todd, however, Todd was never served with either the original petition or the third party demand. Culver answered generally denying that the materials had been delivered to the building site or actually used in the construction, and further pled certain affirmative defenses. Trial against Culver only was had and judgment was rendered in favor of plaintiff for the amount of the materials supplied, plus legal interest from date of judicial demand. The trial court disallowed plaintiff’s claimed twelve percent interest and attorney’s fees against Culver. Culver appealed, and Parish answered the appeal in order to seek the twelve percent interest and attorney’s fees and alleged that Culver’s appeal was frivolous and additionally sought twenty percent of the total judgment rendered as damages arising from the frivolous appeal.

As to whether Culver’s appeal was frivolous, Parish cites the case of F.A.B. Distributing Company v. Marullo, 138 So.2d 656 (La.App. 4th Cir., 1962) in support of its position. In Marullo, supra, neither the defendant nor his counsel were present when the case was called for trial, at which time the case was tried and judgment rendered in favor of plaintiff. A motion for a new trial was filed and denied, at which time defendant took a suspensive appeal. Appellant’s attorney submitted the case on the record, and did not argue the case nor file a brief. Because appellant failed to point out any error in the judgment of the lower court, the judgment was affirmed under the presumption that it was correct. In awarding appellee damages for a frivolous appeal, the Fourth Circuit stated:

“We find no serious ground, indeed no ground at all, upon which the reversal of the judgment appealed from could be sought and we are convinced that this appeal was taken only for the purpose of delay.” (Citations omitted.)

In Marullo, supra, the court, for good reason, believed that the appeal was frivolous. In the instant case, we find that the plaintiff’s claims and certain issues of law were vigorously contested in the trial court, and that appellant has fully briefed the errors assigned in this appeal. We believe that there exist seriously contested issues and that appellant has not abused his right to appeal by seeking our review of the trial court’s determinations, both on the facts and the law. For these reasons, we find that this appeal is not frivolous and, therefore, deny appellee’s prayer for additional damages. Tullis v. Aertker, 352 So.2d 415 (La.App. 3rd Cir., 1977).

Culver, as owner of the property to be improved, entered into an unwritten agreement with Todd for the pouring and finishing of a concrete slab on which a building was to be constructed. Because no contract was recorded, Parish bases its action on the provisions of LSA-R.S. 9:4812, which provide, in pertinent part, as follows:

“When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection or reconstruction, for the account of the owner, for which no contract has been entered into or when a contract has been entered into but has not been recorded .... then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation .... shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation
“Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or sub-contractor, when a contract, oral or written, has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one year from the aforesaid recordation of his claim

Because the Private Works Act (R.S. 9:4801, et seq.) is an act in derogation of the general law of contract, it must be strictly construed. Authement’s Ornamental Iron Works, Inc. v. Reisfeld, 376 So.2d 1061 (La.App. 4th Cir., 1979), writs denied 378 So.2d 1390 (La.1980).

Because Louisiana’s lien statutes are stricti juris, the plaintiff must prove its claim for liens by a substantial preponderance of the evidence. However, once the supplier proves delivery to the job site, the burden shifts to the defendant to show the materials were not used in the construction or incorporated into the job. And, the supplier need only show by sufficient, competent proof that the materials were delivered to the job site, and need not prove delivery beyond a reasonable doubt as in a criminal case. Best Electric Supply Company, Inc. v. Rittiner, 334 So.2d 792 (La.App. 4th Cir., 1976). Further, after a materialman has proven actual delivery of the materials to the site, he is not required to additionally prove that the materials were, in fact, incorporated or used in the building. Levingston Supply Company v. Aetna Insurance Company, 124 So.2d 357 (La.App. 1st Cir., 1960).

Thomas D. Davis, Parish’s assistant general manager, testified that he had personal knowledge of Parish’s bookkeeping procedures, including the issuing or opening of charge accounts, and generally as to the ordering, invoicing and delivery of materials to job sites. Mr. Davis testified that orders for ready mix concrete would come into Parish’s dispatch room and that a six-carbon-copy invoice would be prepared, listing the purchaser, delivery instructions, amount of materials, et cetera. This invoice would then be taken to the job site by the delivery driver, who would obtain a signature of receipt, leave one copy on the job site and return the remaining copies to Parish’s office. In connection with his testimony, Parish introduced twenty-nine invoices in support of its claim.

Richard Harold, the other witness called by plaintiff, testified that he was employed by Parish as a cement truck driver, and personally made a number of deliveries of cement to Culver’s Pruden Road job site. Harold further testified that other truck drivers employed by Parish made deliveries of materials to the Pruden Road job site, and that, in making his deliveries, he personally observed other Parish trucks delivering materials at the job site.

Of the twenty-nine invoices, twenty-four invoices unquestionably indicate sales of material to Todd and delivery of these materials to Culver’s Pruden Road building site.

Five of Parish’s invoices show certain conflicting notations as to where deliveries were made. One invoice shows a delivery made to a “10th Ave.” address, and the other four show the 10th Avenue address being crossed out and Pruden Road written in. Concerning this, Mr. Davis testified that when Parish had a large job, a number of invoices would be pre-noted as to the job site, and that if some of these invoices were not used at that job site they would be corrected and used to show deliveries to another customer. All five of these invoices show that the materials were sold to Todd, and when asked on cross examination if Parish delivered any concrete to 10th Avenue to Bill Todd, Mr. Davis testified, “No, sir. The only job we have ever done for Bill Todd was on Pruden Road.”

Further, two of these invoices, Nos. 15157 and 15168, show deliveries made by Mr. Harold and Invoice No. 15168 was signed by Bill Todd himself. As to the other three invoices, we note that they were signed as received by the same persons who signed a number of the other uncontested invoices.

It should also be noted that defendant Culver offered no evidence showing that these materials were not delivered to its Pruden Road job site or were not used in the construction in that job site.

Appellant (Culver) has called our attention to the case of Bernard Lumber Company v. Sayre, 230 La. 17, 87 So.2d 713 (La.1956), as standing for the proposition that, where there is confusion as to where the materials were delivered and where the contractor was not available at the time the case was tried, testimony is required by an actual witness to the deliveries in addition to the driver’s testimony. We find Bernard, supra, distinguishable from this instant case on its facts, and therefore not applicable here.

In Bernard, supra, there was some confusion as to where the materials were delivered because the contractor was engaged in the construction of other houses in the immediate vicinity or subdivision. Additionally, three of the invoices were dated prior to the date of the contract for the construction of defendants’ house. In this instant case, however, the evidence indicated that Parish sold materials to Todd in connection with Culver’s Pruden Road job site only. And, other than the notation of delivery on five of Parish’s invoices, which were explained by Parish, there is no other source of confusion. Further, the record contains no evidence that Todd was engaged in any other construction in the vicinity of the Pruden Road job site or at or near the “10th Ave.” address.

From a careful reading of this entire record, we find, as did the trial court, that plaintiff proved its case by a substantial preponderance of the evidence and that the judgment of the trial court, awarding Parish the sum of $5,714.08, is correct.

The record clearly indicates that Parish had no contractual relationship with Culver. Therefore, Parish’s cause of action against Culver is not contractual, Louisiana Paving Company, Inc. v. State, Department of Highways, 372 So.2d 245 (La.App. 1st Cir., 1979), but rather, exists only under the provisions of R.S. 9:4801, et seq. Because Culver did not itself agree to the twelve percent interest and twenty-five percent attorney’s fees, these things being agreed to only by Culver’s subcontractor, Todd, we find that Parish is not entitled to recover these amounts from Culver. Long Leaf Lumber, Inc. v. Svolos, 258 So.2d 121 (La.App. 2nd Cir., 1972).

Under the provisions of R.S. 9:4801, et seq., Parish’s personal cause of action against Culver for the value of the materials sold and interest arose at the time it recorded its claim. We believe, therefore, that interest at the legal rate should run from the recordation date, October 12,1979, on the amount of recovery which is allowed. Long Leaf Lumber, Inc. v. Svolos, supra.

For the above reasons, the judgment of the trial court awarding plaintiff the sum of $5,714.08 is hereby affirmed, and that portion of said judgment awarding to plaintiff legal interest from the date of judicial demand until paid is hereby amended and legal interest on the amount of $5,714.08 is hereby awarded from October 12, 1979, until paid. Further, appellee’s claims for interest at the rate of twelve percent and additionally attorney’s fees at the rate of twenty-five percent are denied, as is its claim for additional damages for a frivolous appeal. All costs, both in the trial court and on appeal, are to be paid by appellant-defendant, Fritz Culver, Inc.

AMENDED AND AFFIRMED.


author: COLE, Judge. WATKINS, Judge

text:
    Joaquin MATHEU, Jr. v. TANGIPAHOA PARISH POLICE JURY.
    No. 14162.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Rodney C. Cashe, Hammond, for plaintiff.
    Gail K. Sheffield, Asst. Dist. Atty., Am-ite, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented in this property damage case is whether or not the court erred in failing to find the plaintiff-appellee con-tributorily negligence, or alternatively, whether or not the court erred in failing to find the damage was caused by the negligence of a third party rather than by the negligence of the Police Jury.

The facts are as follows: on and before February 27, 1979, the Tangipahoa Parish Police Jury (hereinafter referred to as Police Jury) was replacing a bridge on South Holly Street, just outside the city limits of Hammond, Louisiana. The Police Jury earlier that day had removed the wooden bridge and dredged the underlying canal, piling the dirt alongside the canal resulting in a four to five foot tall embankment across the road. The south end of Holly Street intersected with Minnesota Park Drive and the north end with Covington Highway. Each end had been barricaded at the intersection with a saw-horse barrier blocking one lane of traffic. A sign on the barrier read “road closed” and was painted with reflective stripes. Further down the road from each intersection, near the dirt embankment, was another saw-horse barrier covering both lanes of traffic. This barrier also had a “road closed” sign attached to it. A stop sign was positioned atop the dirt embankment.

At approximately 7:20 p. m. on February 27, 1979, a car driven by Glen Ard crashed through both barriers on the south end of Holly Street, knocked them aside, went over the dirt embankment and landed nose-down in the canal. Several hours later, at about 1:00 a. m. on February 28, 1979, a car being driven by plaintiff-appellee also went across the dirt embankment, but landed on the other side of the canal. Both drivers filed suit against the Police Jury and the cases were consolidated for trial. The trial court found Mr. Ard to be contributorily negligent in failing to observe the signs and rendered judgment against him. He has not appealed. The court found no negligence on the part of Mr. Matheu and rendered judgment in his favor in the amount of $660.30 for expenses incurred for the towing and repair of his automobile, plus interest. The Police Jury appeals.

We cannot agree with appellant’s first argument, that appellee was contributorily negligent and therefore should be barred from recovery. The record does not contain any evidence of his negligence. He testified he was traveling at approximately 45 miles an hour, he had observed no warning signs or evidence of construction prior to hitting the dirt embankment and the area near the ditch was not well lighted so that the embankment appeared to be a shadow in the road. He admitted he had consumed several beers earlier in the day at Mardi Gras festivities in New Orleans but stated he had not had anything to drink since midafternoon. There was no contradictory evidence showing he was under the influence of alcohol at the time of the accident or that he was negligent in any way.

Matheu’s testimony concerning the lack of visible signs or barricades was corroborated by the testimony of two Hammond city police officers. Officer Larry Dykes and Sergeant Paul Schumaker each testified that when they investigated the Ard accident several hours earlier, the warning signs and barricades had been knocked from their original positions and lay fragmented in the road. One warning sign had apparently been hit head-on by the Ard vehicle and part of it was found on top of the Ard car and part found in the mud underneath. The officers testified they did not attempt to right the signs or make other provisions to warn motorists. Because the site of the accident was outside their official territory the officers took no action other than to ascertain whether or not Ard was injured and then notified the Amite sheriff’s office of the accident. This evidence establishes that at the time of the second accident the warning signs were not sufficiently visible to alert Mr. Matheu of the construction. Since there were no warning signs we cannot say he was negligent in failing to anticipate the road construction.

We find ample evidence in the record showing the canal was properly marked and barricaded by the Police Jury. Mr. Robert Stevenson, construction foreman for the Police Jury, testified as to the condition of the warning signs as of approximately 7:00 p. m. on February 27, 1979. He testified each end of Holly Street was well marked at the respective intersection and near the embankment, as previously described. He stated the signs were in place when he left the site less than a half hour before the Ard accident. Officers Dykes confirmed Stevenson’s description of the position of the signs on the north end of Holly Street. (These signs were not disturbed by the Ard accident.) On the basis of this evidence we conclude the Police Jury was not negligent and therefore we reverse the judgment of the trial court.

The record contains written reasons for judgment which read in part as follows:

“The second accident occurred at approximately 1:00 A.M. on the following morning of February 28, 1979. It was obviously caused by the fact that no barricades or warning signs were in place between Minnesota Park Drive and the scene of the accident as they had been knocked down by the car driven by Ard earlier. The City Police had notified the Tangipahoa Parish Sheriff’s Office of the first accident.”

The court stated it found Mr. Matheu free from negligence and rendered judgment in his favor, without specifying the theory of liability it relied upon. Because we are unsure of the basis of the trial court’s reasoning we will briefly discuss the various theories it may have applied.

If the court based its judgment on the conclusion that the Police Jury was negligent, we disagree as explained above. We find the Police Jury acted reasonably in setting up the two barricades and three signs. The signs were in place prior to the accident. Although the Police Jury certainly had an obligation to take reasonable steps to ascertain whether or not the signs remained in position, they can hardly be expected to have discovered these signs had been removed during this nocturnal period.

The trial court mentioned the Tangi-pahoa Parish Sheriff’s Office had been informed of the first accident, possibly implying this served as notice to the Police Jury. We cannot agree. The Police Jury and the Sheriff’s office are two separate entities. The Police Jury is the governing body of the parish while the Sheriff’s office serves an entirely different function. Although both are political subdivisions of the state, notice to one cannot be construed as notice to the other. Since there is no evidence in the record showing that the Sheriff’s office actually conveyed the information about the accident to the Police Jury authorities, we find it irrelevant that the Sheriff’s office had been notified.

Counsel for both parties argue in their briefs the liability should be analyzed in terms of La.Civ.Code art. 2317. Even if the trial court had relied on this theory we feel the facts of the case are not appropriate for the application of this article. In order for article 2317 to be applicable the defendant must be the custodian of a “defective thing.” On the one hand a bridge under construction can be said to be “totally defective” as a useful bridge and would certainly pose an unreasonable risk to anyone attempting to traverse it in the usual manner. On the other hand a bridge under construction, when properly marked and barricaded, is not a defective thing at all. The “road closed” warnings and barricades informed the public the bridge had ceased to function as a usable passageway and should not have presented an undue risk to anyone. Since the “thing” under the custody of the Police Jury (the well marked and barricaded construction site) was not “defective” in the usual sense of the word, article 2317 has no application.

As a practical matter, application of article 2317 would not change the result in this case because the damage was caused by the act of a third person (Mr. Ard) when he negligently destroyed the warning signs and barricades. The fault of a third person is sufficient to relieve the Police Jury of liability under article 2317. Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied 1976.

In failing to find the damage was caused by the negligence of a third party, rather than by the negligence of the Police Jury, the trial court erred. Accordingly, the judgment of the trial court is reversed. Appellee is to pay all costs.

REVERSED.

WATKINS, J., concurs and assigns reasons.

WATKINS, Judge

(concurring).

It appears that the Hammond City Police and/or the Tangipahoa Parish Sheriff’s Office was negligent in failing to notify the Tangipahoa Police Jury of the damage to its barricades at this dangerous roadway construction site as a result of the first accident. They undoubtedly had a duty to warn the motoring public of the danger until such time as the warning barricades were repaired and replaced.


text:
    William L. COWELL v. DAIRYLAND INSURANCE COMPANY.
    No. 14164.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Curtis M. Baham, Jr., Hammond, for plaintiff.
    Dennis J. Phayer, New Orleans, for defendant Dairyland Ins. Co.
    Autley B. Newton, Hammond, for defendants Leon G. Dunkin and Lawuna Dun-kin.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This matter is on suspensive appeal to us from the confirmation of a default judgment taken by plaintiff, William L. Cowell, against the defendant, Dairyland Insurance Company.

It arose from a suit for damages against Dairyland, the uninsured motorist carrier of the plaintiff; against the driver-tortfeasor, Leon G. Dunkin; against Lawuna Dunkin, the owner of the vehicle Dunkin was driving at the time; and against the owner’s liability insurer, named as ABC Insurance Company. The basis of the damage suit was that the negligent operation of the Dunkin vehicle by the driver caused personal injuries to Mr. Cowell. The suit also demanded penalties and attorney’s fees against the uninsured motorist carrier. The record shows that Dairyland Insurance Company was served through the Secretary of State on June 9, 1980. The owner and driver were served on that same date. The minutes of the court show that a preliminary default was entered on June 25,1980. On July 9, 1980, the plaintiff confirmed the default. The record does not reflect that Dairyland filed an answer prior to judgment. An answer was filed by the individual defendants on August 13, 1980.

The record reflects that the evidence offered on the confirmation was the testimony of the plaintiff, William L. Cowell; of a passenger in the Cowell car, Guy Palermo; and of Mrs. Frances Cowell, the plaintiff’s wife. Cowell testified to the negligence of the driver of the Dunkin vehicle in running a stop sign at an intersection in the downtown area of Hammond, Louisiana. In connection with the plaintiff’s testimony, a copy of the police report and photographs of the plaintiff’s car involved in the accident were offered. The plaintiff also testified to his injuries, medical treatment by Dr. Gideon (filing in evidence the bill of Dr. Charles H. Gideon, D. C. for the treatment), and his loss of wages. The plaintiff also offered his insurance policy declaration with Dairyland, and responded affirmatively to questions from his attorney that the uninsured motorist coverage was $5,000 per accident and that the medical pay was $500. Mr. Palermo testified to being in the Cowell car at the time of the accident and that the accident occurred when the other vehicle ran a stop sign. Mrs. Cowell testified only to the back injury of her husband and a reference to his not being able to do any work.

After the testimony, counsel for plaintiff offered a letter from him dated December 27,1979, addressed to Dairyland; a letter to Sentry Claim Service (at the same address as Dairyland) dated February 27, 1980 (enclosing medical report and bill for medical services); a letter to Sentry from plaintiff’s counsel dated March 10,1980 (enclosing verification of loss of wages); and a handwritten memo from one Wayne Minor of Dairy-land, dated April 14, 1980, requesting a loss verification on their particular form. The plaintiff also offered his attorney’s response dated April 17, 1980 and a handwritten letter from Wayne Minor on a Dairyland memo form dated March 4,1980. (Minor is not otherwise identified.) The plaintiff also offered the petition, with special reference to the claim for penalties and attorney’s fees; the sheriff’s return showing service; and the entry of the preliminary default.

Based on the foregoing evidence the trial court rendered judgment in favor of the plaintiff and against Dairyland in the amount of $5,000, legal interest, 12% penalties, $2,000 attorney’s fees and costs. The defendant has appealed this judgment. We reverse and remand.

In order to confirm a judgment by default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant. Holland v. Aetna Life & Casualty Insurance Co., 385 So.2d 316 (La.App. 1 Cir. 1980); Bonfouca Investment Corporation v. Eubanks, 347 So.2d 1277 (La.App. 1 Cir. 1977); see also LSA-C. C.P. art. 1702.

We find the proof herein to be deficient. Competent evidence of plaintiff’s claim under an insurance policy is the insurance contract itself. However, the policy was not introduced into evidence. Only a part of the policy, called Policy Declarations, was offered. This does not satisfy this evidentiary requisite. See Holland v. Aetna Life & Casualty Insurance Co., supra. Moreover, the plaintiff offered no proof that the owner and/or driver of the offending vehicle were uninsured, and there is no affidavit in the record which would establish a prima facie case strictly under the provisions of LSA-R.S. 22:1406 D(6), which affidavit would remove the burden of proof from the plaintiff and place that burden on the defendant insurer. Loupe v. Tillman, 367 So.2d 1289 (La.App. 4 Cir. 1979). We find no competent evidence in the record to prove that the defendant-driver-owner is an uninsured or underinsured motorist. See Beck v. Allstate Insurance Company, 359 So.2d 1327 (La.App. 4 Cir. 1978), writ denied, 362 So.2d 791 (La.1978).

For the foregoing reasons, the judgment of the trial court is reversed, the judgment vacated and the case is remanded to the trial court for further proceedings. Appel-lee is to bear the costs of this appeal.

REVERSED AND REMANDED.

      . The minutes do not reflect against what defendants the preliminary default was taken; although the attorney representing the plaintiff, in his prefatory remarks at the trial on July 9, 1980, said that the default was “being taken against Dairyland Insurance Company only.”

      . Dairyland Insurance Company filed an answer, third party demand and request for trial by jury on August 15, 1980 (more than a month after the confirmation judgment.)

      . Cowell and his attorney refer to driver as > Lawana [Lawuna] Dunkin (although petition and accident report state that Leon Dunkin was the driver.)

      . The policy or a copy thereof was not introduced in evidence.


text:
    Shirley Woods BLACKWELL v. Dewey W. BLACKWELL.
    No. 14165.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Fannie Burch, Amite, for plaintiff.
    Robert L. Kleinpeter, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Dewey W. Blackwell appeals a trial court judgment awarding his wife, Shirley Woods Blackwell, a separation and disposing of several ancillary matters.

A review of the record indicates that trial was had and judgment was signed on July 9, 1980. Following a motion for new trial by Dr. Blackwell and a motion to reopen the case for a specific purpose by Mrs. Blackwell, the trial court granted a rehearing for additional testimony in all areas. Trial was had on September 5, 1980. At the conclusion of trial, the district judge gave oral reasons for judgment stating that he was amending the judgment of July 9 and for counsel to “(p)repare the judgment as so amended and I will sign it.”

No judgment was ever presented to the trial court for signing. Nevertheless, at the conclusion of trial on September 5, counsel for appellant was granted an order of appeal on oral motion in open court.

LSA-C.C.P. Art. 1911 provides:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

Because no final judgment has been signed, the appeal is premature and this court has no jurisdiction. Therefore the case is remanded to the district court for further proceedings according to law, assessment of costs to await final determination.

REMANDED.


text:
    T. W. THIBODEAUX, III v. SOUTHEASTERN FIRE INSURANCE COMPANY.
    No. 14168.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Joseph W. Cole, Jr., Cole & White, Port Allen, for the plaintiff-appellee.
    Calvin E. Hardin, Jr., Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for the defendant-appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, T. W. Thibodeaux, III, filed this civil action against defendant, Southeastern Fire Insurance Company, seeking insurance coverage, under a homeowner’s policy issued by defendant, for theft of personal possessions from his automobile. After trial on the merits, the district court rendered judgment in favor of plaintiff. Defendant appealed.

The insurance policy issued by defendant provides the coverage sought herein only if 1) plaintiff was a resident of the household of the insured (his father) in Port Allen, Louisiana; and 2) there were visible marks of forcible entry upon the exterior of the vehicle. With these provisos in mind, we turn to a review of the facts as revealed by the record.

Plaintiff lived with his parents throughout his childhood and college career, either in a private room or sharing a room with his brother. Plaintiff’s automobile title and voter registration list his father’s house as plaintiff’s residence.

Upon graduation from college, plaintiff was commissioned as an officer in the United States Air Force, with which he had agreed to a five year commitment. Plaintiff left his father’s house on a Sunday for Mather Air Force Base in California, his first military assignment. He took with him some of his clothes and personal belongings, leaving the remainder in his room at his father’s house.

Plaintiff traveled by automobile, spending each night in a different motel en route. On the Wednesday night following his departure, he stopped at a motel about 10:30 p. m. When he registered at the motel, he listed his father’s house as his home.

Before retiring for the evening, plaintiff secured his automobile, making sure that the trunk and doors were locked and that the windows were completely closed. The next morning, he found the vehicle with the driver’s door open, the window partially open, and the contents disturbed. Many personal possessions were missing.

The inside of the driver’s door bore scratch marks. There was no damage to the exterior of the vehicle. However, the dust and road grime around the top of the driver’s window had been disturbed, where the window’s top edge fits into a rubber gasket.

Mather Air Force Base was only a temporary assignment. Plaintiff’s next military assignment was to Castle Air Force Base, for only three months. Thereafter, plaintiff stated, he would be assigned to Eielson Air Force Base in Fairbanks, Alaska, for an undetermined length of time.

Plaintiff listed his father’s house as his own home on all of his service records. He maintains a savings account in Port Allen and is still registered to vote there. Since joining the military, plaintiff has on occasion returned to Port Allen while on leave for several weeks.

Defendant assigns four specifications of error on appeal. First, it contends that the trial court erred in allowing a police officer to testify regarding a method to gain entry into a locked automobile without residual damage to the exterior of the vehicle. Defendant conceded that the officer was an expert on the subject, but objected to his testimony on the grounds that the officer had not investigated the particular theft at issue and that his testimony was irrelevant.

The officer’s testimony related to the use of a “lock jaw” device, which may be inserted between the top of an automobile window and the rubber gasket and then guided downward to the door lock, in order to trip the lock. Hence, this testimony offered a theory consistent with the physical evidence in the case and was relevant to explain one possible method by which the thief could have gained entry into plaintiff’s locked vehicle.

An expert’s opinion need not be based upon personal examination of the person or thing at issue. See e. g. Giroir v. Pann’s of Houma, Inc., 341 So.2d 1346 (La.App. 1st Cir. 1976). In the instant case, the officer merely offered an explanation of how a locked car may be entered without residual damage to the vehicle. The weight to be accorded expert testimony is largely dependent upon the expert’s qualifications and the facts upon which his opinion is based. Middle Tennessee Council, Inc., Boy Scouts of America v. Ford, 274 So.2d 173 (La.1973); Savoy v. Action Products Co., Inc., 347 So.2d 930 (La.App. 3rd Cir. 1977); Galloway v. Gaspard, 340 So.2d 579 (La.App. 1st Cir. 1976). See also Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977). While the personal investigation of this particular theft might have resulted in more valuable testimony of the officer, the absence of such personal knowledge cannot be held to exclude his testimony. Hence, we find no error in the trial court’s decision to admit the testimony of the officer.

Secondly, defendant contends that plaintiff was not a resident of his father’s household, a prerequisite for the insurance coverage sought herein.

“Resident of the household of the insured” is a phrase which has been subjected to varying interpretations, depending upon whether the phrase is used to extend or exclude insurance coverage.

“In dealing with policies extending coverage to members of the named insured’s household, the courts have adopted an extremely broad interpretation of the clause; but when dealing with policies which exclude such persons, courts give the same terms a more restricted interpretation. The apparent inconsistency is in reality no inconsistency; it is merely the application of the settled principle that ambiguity in an instrument is resolved against the draftsman. (Footnotes omitted.) Note, 26 La.L.Rev. 724 at 726 (1966).

In the instant case, the insurance policy extends coverage to residents of the insured’s household. The trial court applied a broad interpretation of the phrase, finding that plaintiff was a resident of his father’s household. This ruling is supported by prior jurisprudence. See e. g. Manuel v. American Employers Insurance Company, 228 So.2d 321 (La.App. 3rd Cir. 1969); Fidelity General Insurance Company v. Ripley, 228 So.2d 238 (La.App. 3rd Cir. 1969), writ denied, 255 La. 248, 230 So.2d 94 (1970). Moreover, this finding is one of fact. Branam v. Traders and General Insurance Company, 344 So.2d 1073 (La.App. 3rd Cir. 1977). It is amply supported by the facts on record as set forth above. The finding of the trial court that plaintiff was a resident of his father’s household is not clearly wrong, and we find no manifest error therein. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Thirdly, defendant contends that the trial court erred in finding that there had been a forcible entry into plaintiff’s automobile. Such a finding is also one of fact and entitled to great weight on appeal.

The record reveals that the automobile was securely locked and the windows completely closed when plaintiff left it for the night. The next morning, the driver’s door was open and the window partially open. The dust and road grime at the top of the window was disturbed. There were scratch marks on the interior of the door. (Although this fact may not be considered with regard to the requirement of visible marks of forcible entry upon the exterior of the vehicle, it may properly be considered with regard to a finding of forcible entry.)

The trial court indicated in its written reasons for judgment that it felt a coat hanger had been used to gain entry into the vehicle. This manner of entry requires the use of force. We cannot say that such a finding is clearly wrong. We find no manifest error. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra.

Lastly, defendant contends that the trial court erred in finding that there were visible marks of forcible entry upon the exteri- or of the automobile, another prerequisite for the insurance coverage sought herein. Several arguments are advanced in support of defendant’s position.

First, it argues that plaintiff himself denied the existence of any such marks. However, a review of the cited portion of plaintiff’s testimony reveals that plaintiff first responded that the road dust was disturbed. Only after defense counsel instructed plaintiff that such a disturbance was not a visible mark of forcible entry did plaintiff deny the existence of any such mark.

Secondly, defendant argues that plaintiff never testified as to when he observed the disturbance of the dust and road grime. It is true that plaintiff gave no specific time for his observation. However, the context of his testimony on the subject indicates that he observed this fact when he first discovered the theft. Moreover, the testimony as to the disturbance of the dust and road grime was adduced specifically in response to questions regarding any marks indicating the thief’s entry of the automobile. Plaintiff’s testimony was sufficiently clear to support a finding that the disturbance of the dust and road grime was not done by either plaintiff or the police, but was accomplished during the theft. This finding is not clearly wrong; we find no manifest error therein. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra.

Defendant also argues that the disturbance of dust and road grime is not sufficient to constitute visible marks of forcible entry. We disagree. Scratches at the top of an automobile window have been held sufficient visible marks of forcible entry to warrant a finding of insurance coverage in a similar case. Schmidt v. Travelers Insurance Company, 259 So.2d 632 (La.App. 4th Cir. 1972). Plaintiff’s vehicle had a rubber gasket at the top of the driver’s window. The disturbance of dust and road grime on a rubber gasket is equally as sufficient as scratches to constitute visible marks of forcible entry upon the exterior of a vehicle.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by defendant.

AFFIRMED.


text:
    Betty Ann DiBenedetto MENTEL v. Ronald A. MENTEL.
    No. 14173.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Peter J. Abadie, Jr., New Orleans, for plaintiff-appellee.
    Benjamin B. Saunders, Metairie, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Betty Ann DiBenedetto Mentel, brought suit against her former husband, Ronald A. Mentel, seeking $35,146.79 and costs. Plaintiff alleged that on August 4, 1977, she and her former husband executed a subsequently recorded contract for the settlement of their community property. Plaintiff further alleged that defendant failed to carry out certain of his obligations under the contract. From a judgment in favor of plaintiff requiring defendant to pay $3,630.46, interest and costs, defendant appeals. Plaintiff has answered the appeal.

A review of the record indicates that as part of the community property settlement, defendant agreed “to pay all expenses related to and necessary in the completion of the family home and the grounds surrounding same” and to provide for the “use and maintenance of at least one vehicle, a 1975 Cadillac El Dorado.”

Mrs. Mentel claimed various expenses as being necessary and related to completion of the family home. Mr. Mentel claimed the various expenses were either unneeded or were furnishings for, and not related to completion of, the home.

The trial court listened to all the testimony and specifically found that certain of the claimed expenses were validly related to completion of the home. We find his decision correct.

For the foregoing reasons, the trial court judgment is affirmed except that the judgment is amended to read $3,624.40 since a careful review of the applicable figures reveals a slight error in calculation by the trial court. In all other respects the judgment is affirmed.

AFFIRMED AS AMENDED.


author: PONDER, Judge.

text:
    Lee HILL v. Leroy SMITH.
    No. 14175.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Robert E. Tillery, Douglas L. Nicholson, Baton Rouge, for plaintiff-appellee Lee Hill.

      Joseph A. Gladney, Jose R. Cortina, Howard M. Romaine, Baton Rouge, for defendant-appellant Leroy Smith.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment in favor of plaintiff for damages for malicious prosecution.

The issues are: proof of requisites for a suit for malicious prosecution, and violation of constitutional right of access to the courts.

We affirm.

Plaintiff accidentally “sideswiped” defendant’s parked car causing minimal damage. Following a discussion, the parties appeared to agree on damages. The invest tigating officer advised defendant that if he were not paid, he could file charges against plaintiff for simple criminal damage. Thereafter, when plaintiff refused to pay, defendant filed the charges. Plaintiff posted bond. When he appeared for arraignment he was advised that the charges had been dropped. He sued defendant for malicious prosecution; the court awarded $300.00 damages.

An action for malicious prosecution lies where there is a concurrence of the following:

(1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.

Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass’n of New Orleans, 195 La. 347, 196 So. 554 (1940).

Defendant claims plaintiff has failed to prove these elements; he especially contends that because no certified copies of criminal court records were introduced at trial, there is no legal evidence to prove the commencement of the criminal prosecution, its legal causation by plaintiff and its termination in favor of plaintiff. He argues plaintiff’s hearsay testimony is not the “best evidence-.”

We find plaintiff’s uncontradicted hearsay testimony, admitted without objection, sufficient to prove the commencement, causation and termination of the prosecution. Coleman v. Victor, 326 So.2d 344 (La.1976). Defendant himself testified he filed charges against plaintiff. He cannot now complain the court considered the evidence. LSA-C.C. Art. 2291.

Defendant claims he acted without probable cause and without malice. Citing Bristow v. Messer, 336 So.2d 44, (2d Cir.1976) and Sandoz v. Veazie, 106 La. 202, 30 So. 767 (La.1901), he claims his good faith reliance on the investigating, officer’s advice negated any want of probable cause or malice.

Defendant’s claim is without merit. Simple criminal damage to property requires the intentional damaging of another’s property. LSA-R.S. 14:56. Malice exists when a charge is made with knowledge that it is false or with reckless disregard for the truth. Jefferson v. S.S. Kresge Co. d/b/a K-Mart, 344 So.2d 1118 (La.App.3rd Cir.1977); Carter v. Catfish Cabin, 316 So.2d 517 (2d Cir.1975). We find no error in the court’s determination that plaintiff’s actions indicated malice and a lack of probable cause.

Defendant next claims plaintiff has failed to prove any damages arising from his criminal prosecution. The record reveals that although plaintiff was not jailed, he did have to post bond and return to court for arraignment. While we agree the damage to plaintiff was minimal, we do not find the court’s award of $300.00 a clear abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979).

Defendant lastly claims the court’s adverse judgment violates Art. 1, Section 22 of the Louisiana Const, of 1974 by barring his access to the courts. Evidently, this is based upon a chilling effect upon the filing of a criminal charge. The constitutional provision does not afford “carte blanche” for unfounded or mistaken use of the criminal process for private ends. Because we find plaintiff did not act in good faith or upon reasonable grounds, we find his constitutional rights have not been violated. Cf. Robinson v. Goudchaux’s, supra. As a matter of fact, defendant has had his day in court.

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

AFFIRMED.

      . La.Const. Art. 1, Section 22:
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”


text:
    Rex NELSON v. APPALACHIAN INSURANCE COMPANY OF PROVIDENCE.
    No. 14176.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Roger M. Fritchie, Baton Rouge, for plaintiff-appellant Rex Nelson.
    John Dale Powers, Baton Rouge, for defendant-appellee Appalachian Insurance Co. of Providence.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

In 1974, Rex Nelson sued John D. Newman, Jr., on a $72,000 note. Following trial, judgment was signed in favor of defendant dismissing plaintiff’s claim at his costs, including $250.00 in expert witness fees. Plaintiff appealed but counsel failed to file timely the appeal bond. This court dismissed plaintiff’s appeal and the Supreme Court denied certiorari.

In the present case, plaintiff, Rex Nelson, brought a direct action for legal malpractice against Appalachian Insurance Company of Providence, the malpractice insurer of plaintiff’s counsel in the original suit. By stipulation, no testimony was elicited but the entire record of the original suit was introduced. Subsequent to trial, judgment was signed in favor of Appalachian Insurance Company dismissing plaintiff’s suit at his cost. Plaintiff appeals. We affirm.

In order to prevail in a legal malpractice suit involving alleged mishandling of a prior suit, a plaintiff must show that because the prior suit was mishandled, plaintiff lost the original suit or had his position otherwise impaired. Alfonso v. McIntyre, 387 So.2d 1348 (La.App. 1st Cir. 1980), writ denied 392 So.2d 693 (1980); Tassin v. Labranche, 365 So.2d 31 (La.App. 4th Cir.1978). Applied to the present case, this rule requires us to determine whether appellant would have prevailed on appeal against John D. Newman, Jr., had the original appeal been timely perfected.

At the original trial, one of the defenses offered to plaintiff’s claim was that there was a subsequent agreement between Nelson and Newman to forgive the note. In an excellent opinion thoroughly treating all germane issues, Judge Tanner found, among other things, that this defense was valid. Several careful readings of the entire record convince us that Judge Tanner was correct and that there was indeed an agreement to forgive the note. Appellant, therefore, could not have prevailed on appeal.

Although appellant urges otherwise, it is clear that there is no requirement that the subsequent modification or revocation of a contract required to be in writing be in writing itself. Kaplan v. University Lake Corporation, 381 So.2d 385 (La.1979).

For the foregoing reasons, the judgment appealed from is affirmed. All costs, both trial and appellate, are to be paid by Rex Nelson.

AFFIRMED.

      . Answer was filed and the suit was defended by Appalachian Insurance Company.


author: LOTTINGER, Judge.

text:
    Michael LOCICERO et al. v. STATE FARM MUTUAL INSURANCE CO., et al.
    No. 14178.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Hobart O. Pardue, Jr., Springfield, and Phillip T. Hager, New Orleans, for plaintiffs.
    Iddo Pittman, Jr., Hammond, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Plaintiff, Michael Locicero, filed this action seeking monetary damages for personal injuries from an automobile accident. Plaintiff was a seventeen year old minor at the time of the accident. His father, Andrew Locicero, joined in the suit seeking recovery of medical expenses incurred by him on behalf of his son. They named as defendants the father of the minor driver of the offending vehicle and his insurer, State Farm Mutual Insurance Company.

The liability of defendants was stipulated, and the case was tried on the issue of damages. The trial court awarded Michael Locicero $65,000.00 as general damages; personal injury and disability — $40,000.00, physical pain and suffering — $10,000.00, and mental anguish — $15,000.00. State Farm appeals.

On appeal, State Farm argues that the general damage award is excessive, that it represents speculative damages, and that the trial court failed to consider guideline cases in fixing the award.

The automobile accident giving rise to this action occurred on June 16, 1978. Michael Locicero was a passenger in the rear seat of a vehicle when it was hit head-on by another automobile. The impact threw Michael against the rear of the front seat and then over it and into the front dashboard. His left forearm was broken in two places at mid-shaft. Bone protruded through the skin, and his wrist and hand hung limp against his arm in a backward position. Michael was not immediately rendered unconscious. Eventually, he passed out upon viewing his injury.

Michael was taken to a hospital emergency room, where he was examined by Dr. John L. Fambrough, an orthopedic surgeon. Dr. Fambrough diagnosed Michael’s major injury as compound fractures of both the radius and ulna at the mid-shaft of the left forearm. Other injuries were superficial.

Surgery was performed immediately and lasted six hours. Both fractures were set with metal plates, attached with screws into the bone. A long-arm cast was applied. After six days in the hospital, during which Michael experienced considerable pain and other discomfort, he was discharged.

Over the following year, Dr. Fambrough examined Michael on several occasions. Five weeks after surgery, the cast was removed. The fractures were healing without complication, but Michael’s complaints of pain and numbness led Dr. Fambrough to suspect ulna nerve damage. He referred Michael to a neurologist, Dr. Evan P. Howell, whose findings will be discussed at a later point.

On May 15, 1979, Michael was again hospitalized for the surgical removal of the metal plates and screws. Dr. Fambrough again applied a cast, in order to allow “the screwholes to fill in with bone.” The cast was removed on July 21, 1979. However, the screwholes had not yet healed completely and a wrist immobilizer was applied.

Dr. Fambrough again referred Michael to Dr. Howell because of continued post-operative complaints of pain and numbness. Dr. Fambrough also prescribed physical therapy and instructed Michael to avoid strenuous activity for four months. The only permanent effects of the surgery are two scars on the forearm.

Dr. Howell first examined Michael on September 11, 1978. He performed electrical studies and diagnosed Michael’s condition as ulnar nerve damage causing absent nerve function in the left hand and lower fingers.

On October 30, 1978, Dr. Howell performed a formal neurological examination of Michael. He opined that there was no doubt that Michael had a significant ulnar nerve lesion. He noted also weakness and atrophy in the muscles of the left hand and that his patient complained of pain, numbness, and weakness.

By November of 1978, Dr. Howell noted significant improvement in the ulnar nerve conduction velocity in the left forearm but no significant change with respect to the elbow area. He further noted that the first dorsal interosseus muscle showed evidence of severe denervation with complete lack of motor units without voluntary effort.

Michael’s condition continued to improve gradually. On April 30, 1979, Dr. Howell noted significant evidence of the healing of the ulnar nerve. However, Michael returned to Dr. Howell on June 11,1979, after the surgical removal of the metal plates and screws. He complained of swelling and decreased sensation of the fourth and fifth fingers of his left hand. He also complained of sharp pains down his left forearm and into the lower fingers, the same path as that of the ulnar nerve.

On his last visit to Dr. Howell, on January 7, 1980, Michael still complained of the shooting pain down the arm and also of numbness of the lower fingers. Michael also complained that use of the arm tended to increase the pain and cause swelling. Upon testing, Dr. Howell found improvement of the ulnar nerve conduction velocity in the forearm area but found further delay and decrease of that across the elbow. He also found a three-quarter inch difference between the lengths of Michael’s left and right forearm, which, he stated, was due to a loss of muscle bulk.

Dr. Howell explained that Michael needed physical therapy for the atrophy problem but that exercise could aggravate the nerve damage and cause more pain. He stated that Michael would continue to experience problems upon repetitive activity and that future surgery was a possibility.

Dr. Howell opined that Michael’s complaint of numbness was compatible with the results of medical tests. He also stated that some pain, although not severe pain, is also symptomatic of similar conditions. Finally, Dr. Howell opined that Michael’s condition was aggravated by his reluctance to use the arm for fear of 'further injury.

The record reveals that Michael was a very active and talented athlete prior to the automobile accident. He played football in high school and planned to compete for a position on a college team. After the accident, sport participation was an impossibility. Even after the fractures healed, Michael remained relatively inactive and experienced considerable discomfort. He was reluctant to use his injured arm for fear of further injury. There is no doubt that the injury to his arm has had a great effect upon Michael’s lifestyle.

Appellant, State Farm, specifically argues that the effect of the injury upon Michael’s lifestyle and the resultant deprivation of even an opportunity to compete for a college football position are too speculative to be considered in assessing damages. We disagree.

This case does not involve assessment of loss of future wages, as do two cases cited as authority by State Farm. See Watson v. Hartford Accident & Indemnity Company, 339 So.2d 480 (La.App. 2nd Cir. 1976), writ denied, 341 So.2d 1124 (La.1977); Reeves v. Gulf States Utilities Co., 327 So.2d 671 (La.App. 1st Cir. 1976), writ denied, 330 So.2d 311 (La.1976). Nor does it involve speculation upon damages which have not yet arisen, as in another case cited as authority by State Farm. See Ulmer v. Travelers Insurance Company, 156 So.2d 98 (La.App. 1st Cir. 1963). Rather, in the instant case, the record shows that plaintiff’s lifestyle was detrimentally altered and that he was forced to forego various activities, including participation in try-outs for a college football team. Loss of social and recreational activities may properly be considered as one factor in setting an award of general damages. See e. g. Landon v. Hartford Accident & Indemnity Company, 339 So.2d 1307 (La.App. 1st Cir. 1976).

State Farm also argues that the general damage award is excessive and that it is not comparable to awards in cases of similar injuries.

With respect to the award of general damages, each case must be weighed and evaluated according to its own particular facts and circumstances. In Reck v. Stevens, 373 So.2d 498, 501 (La.1979), the Louisiana Supreme Court stated:

“Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
* * * * * *
“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of facts’s ‘much discretion,’ La.Civ.C. art. 1934 (3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco [Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977)] for purposes of then determining what would be an appropriate award for the present case.
“In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries, see Coco at 341 So.2d 334.” (footnote omitted)

In the instant case, Michael Locice-ro, an active boy of seventeen years, received a severe injury to his left arm. He lost consciousness only upon viewing his injury. Michael was twice hospitalized for surgery and suffered pain, weakness, and numbness for well over a year. His lifestyle was seriously disrupted. Permanent effects of the injury include two surgical scars and reduced strength in his arm and hand upon repetitive activity. Moreover, Michael’s reluctance to usé his arm for fear of re-injury complicates his full recovery.

Considering all of the facts and circumstances, we do not find that the award made, albeit on the high side, is so high as to shock our consciences, Hanzy v. Sam, 385 So.2d 355 (La.App. 1st Cir. 1980), writ denied, 386 So.2d 357 (La.1980) sufficient enough for this court to declare that the trial judge abused his discretion.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by the appellant, State Farm.

AFFIRMED.


author: ELLIS, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lena MAGGIO et al.
    No. 14179.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Edward A. Michel and Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellee State of Louisiana.
    James H. Dupont, Plaquemine, for defendants-appellants Lena Maggio, Cecile Maggio, Josephine Maggio and Carmelite Maggio Gullo.
    Patrick W. Pendley, Plaquemine and Donald T. Carmouche, Donaldsonville, for defendant-appellee Matthew J. Randazzo.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

In this expropriation suit, the State took an entire parcel of ground, belonging to Lena Maggio, Cecile Maggio, Josephine Maggio and Carmelite Maggio Gullo, and leased by Matthew J. Randazzo. At the beginning of the trial, it was stipulated that the fair market value of the property was $38,460.00, so that the only issue presented was the apportionment of that amount between the lessors and the lessee. After trial on the merits, judgment was signed awarding $14,452.00 to Mr. Randazzo, and $24,008.00 to the Maggio sisters. From that judgment, the Maggio sisters have appealed. Mr. Randazzo has neither appealed nor answered the appeal, so the judgment is final as to him.

The record shows that the original lease herein was entered into by the Maggio sisters and M. J. Randazzo, the father of M. J. Randazzo, Jr., who is the party to this suit. Under the original agreement, dated August 8, 1962, the Maggio sisters gave the elder Mr. Randazzo full authority to build a building on their lot, using $11,000.00 of their money. After the building was completed the Maggio sisters entered into a lease, dated January 7, 1963, by virtue of which Mr. Randazzo leased the property for $118.00 per month for a 10-year primary term, with the option to renew it on the same terms for two five-year periods.

At some point Mr. Randazzo, Jr., took over the business from his father, and operated it as his own. The elder Mr. Randazzo died in 1972, and the renewal of the lease from January 1, 1974, through December 81, 1979, was executed by Mrs. Randazzo, Jr., without any objection from the Maggio sisters. The lease contains a provision that, on its termination, the lessee had the right to remove from the premises any improvements or equipment placed thereon by him.

The order of expropriation herein was signed on June 2, 1975. The defendants filed answers, but no incidental demands were made by the defendants against each other, and the case was tried in that procedural posture.

Two expert witnesses testified in the case, both on behalf of Mr. Randazzo. Both of them testified on the assumption that all improvements on the land were the property of the lessee, Mr. Randazzo. At the time of the expropriation, the lease had either 102 or 103 months to run, according to the appraisers.

The appraisers each discounted the rent to be paid through the life of the lease to arrive at its present value. They then discounted the present value of the lot, without allowing for any improvements, to ascertain the reversionary interest that the Maggio sisters would have therein. This amount was added to the discounted value of the rent to arrive at the present value of the interest of the lessors-owners in the property. This figure was then deducted from the total value of the property to ascertain the value of the lessee’s interest.

J. Gerald Dupont, the first of the appraisers, testified that the lease had 102 months to run. He valued the entire property at $37,660.00 and the lot alone at $14,200.00 He figured the net rent, after taxes and insurance, to be $90.33, the total rent due for 102 months to be $9,213.66, and the discounted value thereof to be $5,311.71. He computed the reversionary interest of the owners in the lot at $6,832.00, and the total present interest of the owners to be $12,143.99. Subtracting this from the total value of the property, $37,660.00, he arrived at a leasehold interest of $25,516.00.

Kermit Williams, the other appraiser, testified that the lease had 103 months to run. He valued the entire property at $38,460.00, and the lot alone at $15,000.00. Using the same net rental and the same discount figures, he arrived at the present value of the interest of the owners of $13,413.00. Subtracting this from $38,460.00, he computed the value of Mr. Randazzo’s leasehold interest to be $25,047.00.

In reaching his opinion, the trial judge found that the improvements on the property had been paid for by the Maggio sisters, and were owned by them. He therefore used the improved value of the property as the basis for estimating their reversionary interest in the property, and added to that amount the discounted value of the rent, thereby arriving at the value of the owners’ interest. He subtracted this amount from the total appraised value of the property to reach the value of the leasehold advantage, which was awarded to Mr. Randazzo.

In this court, the Maggio sisters complain of the judgment in a number of respects. First, they complain that the trial judge had no authority, under the pleadings, to order the division of the compensation paid for the property. Second, it is claimed that Mr. Randazzo, Jr., has no right to any of the compensation, since his deceased father is the lessee in the original lease. Third, it is claimed that the trial judge used the wrong standard in arriving at the division of the award.

As to the first assignment of error, we find it to be without merit. R.S. 48:457 provides:

“The court also has the power to make such orders as are just and equitable with respect to distribution of the amount finally awarded.”

The trial judge exercised the authority specifically granted him by the law.

On the second assignment of error, we note that Mr. Randazzo, Jr., testified that he bought his father out before his death in 1972. He renewed the lease as of January 1,1974, without objection from the Maggio sisters, and continued to operate the station until the property was expropriated, and to pay the rent thereon. Under the circumstances, the Maggio sisters cannot challenge his status as their lessee.

The third specification of error related to the standard used by the trial judge in fixing his award. In State, Department of Highways v. LeBlanc, 319 So.2d 817 (La.App. 1st Cir. 1975), we said:

“As to the value of Lessee’s leasehold interest, our jurisprudence follows the general rule that a lessee is entitled to compensation for the amount of a leasehold advantage, which is the difference between the value of the lease at the time of expropriation and the lease rentals Lessee has contracted to pay. If the value of the lease is equal to or less than the agreed rental, no leasehold advantage is due Lessee. If the present value of the lease is greater than the contract rent, Lessee is entitled to the difference. Where leasehold advantage is due the Lessee, it is payable out of the total market value of the property awarded the landowner who has burdened his land with the lease, if the value of the landowner’s interest is determined on a basis including consideration of the economic value of the lease at the time of taking
“To establish economic rent, it must be shown with reasonable certainty what rental the property could actually produce if put on the lease market at the present time. This may be shown either by comparables, that is, what other similar properties in the general areas currently produce in rent, by the income approach, meaning what rent is justified by the present income production of the property, or by the establishment of other factors which demonstrate what the property is actually capable of producing in present rentals.”

Both appraisers, who were accepted as experts by the court, testified that the method used by them in arriving at the leasehold advantage was a well recognized appraisal technique. There is no testimony to the contrary. We find the method to be within the guidelines set forth in the above quotation from the LeBianc case, supra, and that the judge utilized a proper standard.

Both appraisers erroneously assumed that all improvements on the property were the property of Mr. Randazzo, and their results were consequently incorrect. The trial judge utilized the same technique as the appraisers, but based his result on the assumption that the improvements were the property of the Maggio sisters. In so doing, he gave the Maggio sisters the maximum amount they could hope to receive. We therefore find no merit in the final specification of error.

The judgment appealed from is therefore affirmed. All costs of this appeal shall be paid by appellants, the Maggio sisters.

AFFIRMED.