author: GUIDRY, Judge. PER CURIAM.

text:
    Glen NORBERT, Plaintiff-Appellee, v. George NORBERT, et al., Defendants-Appellants.
    No. 82-158.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1982.
    Rehearing Denied July 21, 1982.
    David A. Blanchet, Lafayette, for defendants-appellants.
    Domengeaux & Wright, Richard C. Broussard, Lafayette, for plaintiff-appellee.
    Before GUIDRY, FORET and STOKER, JJ.
   GUIDRY, Judge.

The trial court rendered judgment in the above numbered and entitled matter condemning George Norbert and Jessie Augustine, in solido, to pay $34,000.00 together with legal interest and court costs to plaintiff-appellee, Glen Norbert. This judgment was signed on September 14, 1981. Notice of this judgment was personally served on George Norbert on September 16, 1981. Thereafter, on October 2,1981, George Norbert filed an application for new trial. The hearing on the motion for new trial was originally fixed for November 9, 1981 but was refixed on two subsequent occasions and ultimately heard on December 14,1981. On the latter date, the trial court rendered judgment denying George Norbert’s application for new trial because it had not been timely filed. On February 10,1982, George Norbert appealed devolutively from the judgment of December 14th which denied his application for new trial. We dismiss this appeal ex proprio motu.

An appellate court may dismiss an appeal on its own motion where there is no right to appeal. LSA-C.C.P. art. 2162. Bunkie Bank & Trust v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 1st (3rd) Cir. 1977).

A judgment denying a new trial is not appealable. In Shavers v. Shavers, 350 So.2d 912 (La.App. 3rd Cir. 1977), we reviewed the law applicable to an appeal from the denial of a motion for new trial stating:

“In State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481, 482 (1945) our Supreme Court stated:
“A judgment, an order, or a ruling by a district judge refusing to grant a new trial or a rehearing does not fall in the category or legal classification of a final judgment from which a litigant has the right to appeal. While such action on the part of a trial judge is not strictly or technically an interlocutory judgment, it is similar to one, because it cannot be considered a definitive judgment.
The judgment overruling the motion for a new trial and the application for a rehearing because they were not filed within the delay allowed by law is not a final judgment and in that respect is like an interlocutory one, and as it appears that irreparable injury will not result therefrom, the liquidator is without the right to appeal from it. His remedy was to appeal from the final judgment on the merits, signed on July 26, 1944. ..” “It is well settled that a judgment refusing a new trial is not appealable. It is not a final judgment and can produce no irreparable injury. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481.”

Although unnecessary to our decision, we observe that the trial court’s ruling denying appellant’s application for a new trial is eminently correct.

LSA-C.C.P. art. 1974 provides the time delays for applying for a new trial:

“The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

In the instant case, notice of judgment was required. Therefore, the delay for applying for a new trial commenced on September 17, 1981, the day after the sheriff served the notice of judgment on defendant-appellant, George Norbert, and expired on September 23, 1981. Accordingly, appellant’s application for new trial, irrespective of whether it was filed on the 24th day of September, 1981 or October 2, 1981, was untimely.

For the above and foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant-appellant, in his application for rehearing, urges that we erred in our conclusion that his application for new trial, if filed with the trial court on September 24,1981, was untimely. We admit that this may have been error depending upon whether or not defendant-appellant was entitled to notice of judgment. However, reference, in our opinion, to the timeliness or untimeliness of defendant’s application for new trial is pure dictum. The basis for our decision to dismiss appellant’s appeal rests upon the well established premise that a judgment denying a motion for new trial, regardless of the reason for denial, is not appealable. Shavers v. Shavers, 350 So.2d 912 (La.App. 3rd Cir. 1977). Appellant’s application for rehearing is denied.

      . The record leaves some doubt regarding the date on which the application for new trial was actually filed in the Clerk of Court’s office for the Fifteenth Judicial District Court, Lafayette Parish, Louisiana. Two “Received and Filed” stamps appear on the face of the application, one dated September 24, 1981 and the other dated October 2, 1981. The September 24, 1981 notation is not signed by the Clerk of Court or his deputy. The October 2,1981 notation is signed. We attach no significance to this discrepancy, in that, irrespective of whether the application was received and filed on September 24th or October 2nd, it was untimely.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Tom Ed ROE v. Douglas D. SOMERSON and Nationwide Mutual Insurance Company (AKA Nationwide General Insurance Co. and Nationwide Insurance Co.).
    No. 14789.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Writ Denied Oct. 18, 1982.
    C. Scott Cannon, Guy A. Módica, Baton Rouge, for plaintiff-appellant Tom Ed Roe.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees Douglas D. Somerson and Nationwide Mut. Ins. Co. (AKA Nationwide Gen. Ins. Co. and Nationwide Ins. Co.).
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from an award for personal injuries sustained in an automobile accident, asking for an increase. Defendants answered the appeal and asked that the award be reduced.

The only issue is quantum.

We affirm.

Since liability, coverage and defendant’s policy limits were stipulated, the only contest was over the nature and extent of plaintiff’s injuries.

Plaintiff saw Dr. Walker about a week after the accident with complaints of injuries to his knees, head, neck and upper back. He saw Dr. Walker again approximately two weeks later, and complained of back and leg pain. The doctor testified that plaintiff’s neck had improved on the second visit.

Plaintiff saw Dr. J. Fraser, an orthopedic surgeon, three months after the accident complaining of pain in the lower back. The doctor injected the sore area with cortisone on two occasions and referred the plaintiff to a neurosurgeon.

About seven months after the accident, plaintiff saw Dr. J. Clifford, a neurosurgeon, who found a mild amount of bilateral lumbar paraspinous muscle spasm. A mye-logram revealed a bulging disc at L-4. A second myelogram confirmed the diagnosis. Dr. Clifford felt that the problem with the disc condition was aggravated by the accident, but was not caused by it. He suggested that the plaintiff not work more than eight hours a day and assigned a ten percent disability.

Plaintiff also went to see a chiropractor who diagnosed his problem as a nerve root irritation at the L 4-5 level and pressure on the sciatic nerve. He felt that plaintiff should not presently be working.

Plaintiff had been seen by a doctor prior to the accident with complaints of pain in the lower left leg and back. The problem was eventually diagnosed as peripheral neu-ropathy, a disfunction of the nerves due to various causes.

The trial court, in written reasons, held that the bulge at L-4 pre-existed the accident, but was aggravated by it. The result was a 10% physical impairment and probable surgery earlier than would have otherwise been necessary. The trial judge found that although some testimony indicated that the injury had limited plaintiff’s earning capacity, there was no evidence of past lost wages and the evidence of future loss was speculative. The court awarded $20,-000.00 in general damages and $2,746.82 in special damages.

Plaintiff, who is a heavy equipment operator relatively uneducated, first argues that he should have been compensated for his loss of earning capacity. The testimony of co-workers indicated that plaintiff could no longer operate heavy machinery without taking breaks and that other workers were helping him get his work done. The assistant business manager testified that he had received some complaints on plaintiff’s work since the accident and that plaintiff had refused some jobs because of his back condition. An economics expert calculated the present value of plaintiff’s earning capacity and the loss he would sustain if he could only find a job paying minimum wages.

The evidence showed that although there was a decrease in plaintiff’s salary in the year 1978, plaintiff’s wages for the year 1980, up to the date of the trial in November, constituted a substantial increase over the past years. His hourly wages had also increased since the accident.

To recover for permanent partial physical function disability, claimant must prove that either he cannot work or, if he can, it is at a lesser paying job. Profit v. Linn, 346 So.2d 253 (1st Cir. 1977). The proof of loss of future earnings must be with reasonable certainty. Speculation, probabilities and conjecture cannot form the basis for such an award. Chaney v. Our Lady of Fatima Catholic Church, 391 So.2d 501 (3d Cir. 1980). Plaintiff has not carried his burden of proving the loss with a reasonable certainty.

The trial court found that the evidence showing that plaintiff’s earning capacity had been curtailed was speculative and insufficient to support an award. The reasons noted that the testimony came from witnesses who were obviously over eager to assist the plaintiff. We cannot say that the trial court’s finding on contradictory evidence was manifestly erroneous.

Plaintiff next argues that plaintiff should have been awarded damages for the injury he received to his teeth and mouth. Plaintiff testified that although his teeth were “warped from chewing tobacco”, his front teeth were “busted and chipped” and his partial plate was broken, by the accident. A dentist, who examined plaintiff three years after the accident, stated that two teeth which were fractured could have been injured due to the accident but that the breakdown and erosion of plaintiff’s teeth was not due primarily to the accident. There was no evidence as to the cost to fix the broken plate.

The trial judge decided that the dental problem did not result from the accident. Plaintiff has the burden of proving the causal connection between the injury received and the accident by a reasonable preponderance of the evidence. Young v. Department of Hospitals, 365 So.2d 848 (3d Cir. 1978), writ denied 368 So.2d 137 (La.1979). The trial court has not abused its much discretion.

Plaintiff argues that the $20,000.00 awarded to the plaintiff in general damages should be increased to at least $60,000.00 and defendant asks that the amount be reduced to $15,000.00. Counsel for both parties have cited eases in support of their respective positions. However, the record does not clearly reveal that there was an abuse of discretion in making this award and it must remain undisturbed. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For these reasons, the judgment of the trial court is affirmed with costs assessed to the appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Georgia MAI, Plaintiff-Appellee, v. Edward MAI, Defendant-Appellant.
    No. 8821.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Writ Denied Sept. 24, 1982.

      Davis & Murchison, James D. Davis, Alexandria, for defendant-appellant.
    Harry Hammill, Alexandria, for plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   GUIDRY, Judge.

In this suit, Edward Mai seeks modification of a final judgment rendered and signed on April 18, 1975 which partitioned the community of acquets and gains formerly existing between him and his former wife, Georgia Mai. In response to such petition, Georgia Mai filed an exception of res judicata, which was sustained resulting in a dismissal of appellant’s suit. Edward Mai appeals from that judgment.

The facts are undisputed. Defendant, Edward Mai, and plaintiff, Georgia Mai, were judicially separated on July 19, 1974. Thereafter, Georgia Mai filed a suit for partition of the community of acquets and gains formerly existing between the parties. The parties were in agreement as to a proper division of all of the aforesaid community property with the exception of the monthly military retirement pension received by the defendant. The matter went to trial on this disputed issue. The district court concluded that Georgia Mai was entitled to receive 9/26ths of the monthly military retirement pension benefits due to Edward Mai, retroactive to August 12, 1974. A judgment decreeing a partition of all properties belonging to the parties, including appellant’s military retirement pension, was rendered and signed by the trial court on April 18, 1975. Thereafter, Edward Mai filed a motion for a new trial which was denied by the district court. Defendant-appellant did not appeal, thus, the aforesaid judgment is now final.

On August 10,1981, Edward Mai filed the instant petition seeking modification of such partition judgment insofar as it awarded to his former spouse a portion of his military retirement pension benefits. In support of his petition, Edward Mai avers that a recent United States Supreme Court case entitled McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) which held that a wife has no interest in her husband’s non-disability military retirement pension is applicable to the present dispute and mandates the modification of the prior judgment.

The sole issue on appeal is whether the trial court erred in concluding that the prior judgment of partition is res judicata.

The exception of res judicata as provided in LSA-C.C.P. Article 927 derives its authority from LSA-C.C. Article 2286 which provides as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Our courts have repeatedly held that the aforesaid article is stricti juris and each and every element of the formula must be present in order to maintain a plea of res judicata. Grain Dealers Mutual Insurance Co. v. Hardware Dealers Mutual Fire Insurance Co., 196 So.2d 650 (La.App. 1st Cir. 1967).

Defendant contends that the civilian doctrine of res judicata is inapplicable to the present circumstances because all of the three essential elements for such application have not been satisfied. In this regard, defendant urges that the requirement that “the demand must be founded on the same cause of action” has not been met under the instant circumstances. He argues that the cause of the original suit and the instant matter are altogether different in that the cause of the former was a division of community property in accordance with existing state law; whereas, the cause of the present suit for modification of the prior state court judgment is pre-emption of state law by a pervasive federal scheme. We disagree.

In the matter sub judice, each element required for the application of the doctrine of res judicata as set forth in LSA-C.C. Article 2286 is present. The thing demanded in both actions is the non-disability retirement pension benefits earned by reason of defendant’s service in the military. Both actions are based on the same cause of action, specifically, a settlement of the rights of the parties as to such retirement benefits. Finally, both demands are indisputably between the same parties and are against each party in the same quality. Thus, we discern no clear error on the part of the trial court in its conclusion that plaintiff’s exception of res judicata was well taken.

Finally, defendant, citing Judge Ainsworth’s dissent in Erspan v. Badgett, 659 F.2d 26 (5th Cir., 1981), argues that “a subsequent change in law should negate the res judicata effect of a decision where, and to the extent that, (1) the rights adjudicated in that decision do not accrue until after the intervening change in the law has occurred; and, (2) the operation of res judica-ta would result in unequal treatment of similarly situated individuals.” In Erspan v. Badgett, supra, the Fifth Circuit Court of Appeal “On Suggestion for Rehearing En Banc”, addressing factual circumstances similar to those in the instant matter, stated as follows:

“... Furthermore, as the Supreme Court noted in Federated Department Stores, Inc. v. Moitie, [452 U.S. 394], 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981), ‘the res judicata consequences of a final, unap-pealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.’ [452 U.S. 394], 101 S.Ct. 2427 [69 L.Ed.2d 103] (citations omitted). Nothing in McCarty suggests that the Supreme Court therein intended to invalidate, or otherwise render unenforceable, prior valid and subsisting state court judgments. Absent some indication of such an intent, we decline to do so.”

In Footnote 2 of the Erspan opinion, the court explains at length why the doctrine of res judicata is applicable in cases where a divorce decree or judicial partition of community property has been ordered prior to the McCarty decision. Essentially, the court points out that the two elements set forth by Judge Ainsworth in his dissent which are required to negate the res judica-ta effect of a prior judgment are not satisfied under circumstances such as exists in Erspan and the present matter. In this regard, the Erspan court stated:

“Assuming that plaintiff’s right to defendant’s retirement benefits, although established in the 1963 decree, ‘accrues’ only when each periodic payment is actually due and payable, the dissent’s reasoning overlooks the fact that plaintiff simply is not ‘similarly situated’ to individuals whose divorce decrees are rendered after McCarty. As noted in the panel opinion of this case, Texas courts are authorized to divide marital property in a ‘just and right’ manner. In making this determination Texas courts consider several factors, including an ex-spouse’s future need for support. [Erspan v. Badgett 5th Cir.] 647 F.2d [550] at 554. Whereas pre-McCarty divorce courts have considered a spouse’s military retirement benefits as community property when dividing the other joint property of the spouses in a ‘just and right’ manner, a post-McCarty court will not. Under the dissent’s proposed approach the overall equitable distribution of marital property fashioned by Texas courts in cases decided before McCarty would be frustrated, if not destroyed.”

We agree with the aforesaid reasoning of the majority in Erspan and consider the same to be equally applicable to a community property partition judgment fashioned under the laws of Louisiana in that such judgment awards to each spouse his or her just share of the whole of all of the community property.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant-appellant, Edward Mai.

AFFIRMED.

      . The petition seeking a modification of the partition judgment was filed in the original partition suit which results in Edward Mai appearing as defendant-appellant rather than plaintiff-appellant.


author: STOKER, Judge.

text:
    Dorothy Young BERTRAND, et al., Plaintiff-Appellee, v. PROTECTIVE LIFE INSURANCE CO., et al., Defendant-Appellant.
    No. 8846.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Dubuisson & Dubuisson Edward B. Du-buisson, Opelousas, for defendant-appellant.
    Kermit A. Doucet, Lafayette, for plaintiff-appellee.
    Sandoz, Sandoz & Schiff Lawrence B. Sandoz, Jr., Opelousas, for defendant-appel-lee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

Plaintiff-appellee, Dorothy Young Bertrand, seeks recovery under a policy of insurance issued by defendant-appellant, Protective Life Insurance Company (Protective Life) to plaintiff’s husband, Theogene Peter Bertrand, Jr. (Bertrand). The trial court rendered judgment in favor of plaintiff against Protective Life in the sum of $12,-075.00 as well as for penalties of six percent per annum from the date Protective Life received proof of Bertrand’s death until the judgment was paid. Protective Life appeals this ruling.

FACTS

On July 10, 1974, Bertrand applied for $12,500.00 of credit life insurance with Protective Life through Lawrence Larcade, Jr. (Larcade) of the St. Landry Homestead Association in connection with a loan from the homestead of $13,000.00. Larcade filled out the application form according to the responses elicited from Bertrand. The policy was issued by Protective Life in the amount of $12,500.00. Bertrand died on June 12, 1975, of cancer. At the time of his death, the benefits due under the policy amounted to $12,075.00. Plaintiff made a claim on Protective Life for this amount, and the insurance company denied the claim on the basis that Bertrand made material misrepresentations on his application for the insurance.

WAS BERTRAND GUILTY OF MATERIAL MISREPRESENTATION?

LSA-R.S. 22:619(B) states:
“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

This court in Ryan v. Security Industrial Insurance Company, 386 So.2d 939 (La.App. 3rd Cir. 1980) construed § 619(B) as follows:

“In order for an insurer to avoid liability on the basis of material misrepresentations the insurer must meet a three-tiered burden. It must be shown that the statements were false. Second, the insurer must establish that the representations were made with an actual intent to deceive. Third, the insurance company must establish that these misstatements materially affected the risk assumed by the insurer. Martin v. Security Industrial Insurance Company, 367 So.2d 420 (La.App. 2nd Cir. 1979), writ refused 369 So.2d 1364 (La.1979).”

Questions nine and ten on the application for insurance in the instant case appear as follows:

“Yes No
“9. X Do you have any physical or mental impairment? If YES, explain: _
“10. X Have you consulted or been treated by a physician or other practitioner for any illness, or been confined in a hospital during the last seven years? If answer is yes, give particulars below.”

An “X” appears in the box under the column designated “No” next to both questions. In the space provided under question ten, the notation “Good health” appears.

Protective Life claims that these responses were false representations concerning Bertrand’s health. Specifically, Protective Life contends that Bertrand knowingly concealed with the intent to deceive the insurer the fact that he suffered from obesity, diabetes, high blood pressure, and alcoholism and that the misstatement of these facts on the application for insurance materially affected the risk which it assumed. Protective Life also contends that Bertrand intended to deceive the insurer by concealing the fact that he had seen and been treated by doctors and had been hospitalized numerous times in the seven years prior to the date he applied for insurance.

The trial court’s reasons for judgment in favor of plaintiff can be summarized in three grounds:

1) Any misrepresentations on the application for insurance are attributable to officials of Protective Life;

2) Bertrand had no intent to deceive Protective Life; and

3) No misstatements on the application for insurance “materially affected the risk assumed by the insurer”. We will address the arguments raised by Protective Life against each of these reasons for judgment.

Are the misstatements attributable to Protective Life?

Larcade, who handled Bertrand’s application for the credit life insurance, and Merrick Cormier, the loan officer who handled Bertrand’s loan, were both licensed agents of Protective Life. Both men knew Bertrand before this time through his dealings with the homestead association. The amount of the loan was $13,000.00, yet the credit life insurance only covered $12,500.00 of that loan. Larcade filled out the application form for Bertrand. The trial court found that Larcade filled in the figure of $12,500.00 in the blank on the application labeled “Amount of Loan”. The trial court noted that a photocopy of the homestead ledger sheet contained this handwritten note: “Loan was $13,000.00. Took out $12,-500.00 because this was non-medical limit at age 49.” In other words, $12,500.00 was the maximum amount of insurance which Protective Life would issue to a 49 year old applicant without requiring him to undergo a medical examination. Bertrand was 49 years old at the time he applied for the insurance. Finally, the trial court expressed doubts as to Larcade’s testimony that he accurately recorded Bertrand’s responses on the application form and found further that the notation “Good health” on the form was Larcade’s opinion and was not based on an answer by Bertrand.

Based on these findings, the trial court concluded that the misstatements on the application form were a result of Protective Life’s agent having falsely filled out the application. It is well settled that the acts of an insurance agent in filling out an application form falsely are the acts of his principal, the insurer, and they do not bind the innocent insured nor bar recovery by him or his beneficiaries. See Ryan v. Security Industrial Insurance Company, supra, and the cases cited therein at page 941. The trial court relied on the following quotation from the case of Frugé v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La.App. 3rd Cir. 1965), as excerpted in Ryan:

“. .. if the agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, these representations bind the insurer but are not binding upon the insured.”

However, we do not believe that the rationale of the Frugé and Ryan cases and the other cases cited for this proposition is applicable to the present case. In the Frugé case, the insurance agent was informed of the insured’s medical condition (“leaking heart”) before he filled out the application form for the insured. In Ryan, the insured’s medical condition (paralysis) which the insurance company later accused the insured of concealing was readily apparent to the insurance agent who filled out the form. In Morein v. American Physicians Insurance Company, 192 So.2d 887 (La.App. 3rd Cir. 1966), writ refused, 250 La. 268, 195 So.2d 147 (La.1967), the agent knew that the statement he made on the application form that the insured had never had an insurance policy cancelled was false as he was the agent who had issued to the insured an earlier policy which was can-celled. In Cloud v. Security General Life Insurance Company, 352 So.2d 406 (La.App. 3rd Cir. 1977), the false answers to the questions concerning the insured’s medical problems and hospitalizations were caused by the agent’s failure to inquire as to these questions before answering them for the insured.

In the instant case, we find no evidence that Larcade, the insurance agent who filled out Bertrand’s application, was aware of any of Bertrand’s medical problems except his apparent obesity. Although Lar-cade knew Bertrand prior to the taking of his application, he testified that he was unaware of any previous hospitalizations or illnesses of Bertrand and that he never saw Bertrand drunk. Larcade was aware that Bertrand was self-employed in the dirt and heavy construction business, and that he worked long, hard hours. Larcade stated that he read the questions to Bertrand and accurately recorded his responses. There is some disagreement in the testimony as to whether Larcade made the notation, “Good health” on the application in accordance with a response to a question asked of Bertrand or whether Larcade made the notation o i his own in consideration of the answers made by Bertrand to the questions concerning his health. There were no other witnesses to the transaction between Lar-cade and Bertrand.

In light of the foregoing evidence, we cannot say that the misrepresentations on the insurance form are due to the mistake, fraud or negligence of the agent. Bertrand’s obesity, which was observable by Larcade, would not generally be considered a physical impairment or illness in the context of questions 9 and 10 on the application form. Larcade’s note on the form that Bertrand was in good health was reasonable in light of his responses to the previous questions and the fact that Bertrand was capable of hard work. Furthermore, the fact that the insurance was for the non-medical limit of $12,500.00 instead of the full $13,000.00 amount of the loan does not necessarily indicate fraud on the part of the insurance agent. The limiting of the policy to $12,500.00 to avoid having Bertrand undergo a medical examination could likely have been done for Bertrand’s convenience only and without any intent to defraud, conceal or mislead the insurer. In sum, we do not feel that the evidence supports the trial judge’s belief that any misrepresentations on the application form are attributable to the agent of the insurer.

Did Bertrand intend to deceive Protective Life?

The trial court found that Bertrand did not intend to deceive the insurer as Bertrand considered himself to be in good health. The record indicates that Bertrand was affected by higher than normal blood sugar and blood pressure levels, was overweight, and had in the past a problem with occasional alcohol abuse. Bertrand had seen physicians within the seven years prior to the time he.applied for insurance in 1974 for these and other problems not related to the insurer’s failure to pay. These visits averaged two per year from 1969 to 1974. Bertrand had been in a hospital at least twice within the seven year period also, but these stays were apparently made for Bertrand to “dry out” after a bout with alcoholism. Bertrand was taking the drug “an-tibuse” regularly at the time of the application and had not had a serious drinking problem for the previous three or four years.

The depositions of the doctors who treated Bertrand are somewhat conflicting as to whether Bertrand suffered from diabetes or hypertension. Dr. S. J. Rozas who treated Bertrand for these conditions stated that Bertrand had diabetes but that his blood sugar levels were only slightly above normal for a man of his age and could be treated by diet. Dr. Rozas stated that Bertrand had no indication of hypertension and was in “fair health” as of 1974. Dr. James McCarthy, who was Bertrand’s family physician, found Bertrand’s blood sugar levels high enough on occasion to be classified as diabetes. Although Dr. McCarthy prescribed a hypoglycemic agent for Bertrand, he stated that “the only definitive treatment of his diabetes was weight reduction”. Dr. McCarthy did note a higher than normal blood pressure reading when Bertrand was being treated for an infection, but said that this one reading was not indicative of hypertension.

The testimony of Dr. Emile Ventre, who testified at trial for plaintiff, is helpful in resolving' the dilemma of whether or not Bertrand had diabetes or hypertension. Dr. Ventre classified Bertrand’s problem as a “diabetes of obesity” rather than a true diabetes mellitus which is caused by the pancreas’s inability to produce sufficient insulin and is irreversible. Dr. Ventre speculated that Bertrand’s condition was reversible, could be completely controlled, and was probably caused by his consumption of sugar faster than his pancreas could produce insulin to control sugar in the blood. This conclusion is corroborated by Bertrand’s habit of consuming many “cokes” during the day. Dr. Ventre said that Bertrand had borderline high blood pressure and hypertension, but that this condition could also be caused by obesity and therefore could be treated by diet.

In short, all of Bertrand’s medical problems except for his alcoholism probably related to his obesity, and his alcoholism was under control at the time of the application. The trial court found that Bertrand considered himself to be in good health since he worked full time as a heavy equipment operator. The borderline nature of Bertrand’s condition and the fact that it could be treated by diet, as well as Bertrand’s work record, gave Bertrand ample reason to believe he had no physical impairment or illness which he needed to report in his insurance application. It also appears that his hospitalizations for alcoholism were voluntary and not confinements as meant in question number ten on the form. Furthermore, it is undenied that Bertrand died of complications from myeloma (bone cancer) and that he was unaware of this condition at the time of the application. Thus, we cannot say that the trial court was clearly wrong in finding that Bertrand had no intent to deceive the insurance company. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Did the misstatements on the application “materially affect the risk” assumed by Protective Life?

The trial court found that Protective Life would in all likelihood have accepted Bertrand’s application for insurance even if it had fully disclosed Bertrand’s medical history. In response to the question asked in interrogatories “... is it the universal practice of yours to deny credit life insurance to an applicant who is taking medication for obesity?”, Rufus Rice, Jr., Vice-President of Underwriting for Protective Life, responded:

“No, but an applicant’s medical history and treatment must be considered as a whole. Treatment for obesity where there are complicating factors of hypertension and treatment for diabetes melli-tus must be considered as a much more serious condition than for obesity alone, and an applicant with all three illnesses would be normally declined.”

Mr. Rice gave the same response to questions asking for the company’s policy when an applicant is being treated for diabetes mellitus or hypertension. At trial, Mr. Rice stated that Protective Life would accept an applicant of Bertrand’s height and weight as stated on his application with no problem.

It is undenied that the cause of Bertrand’s death (cancer) was unrelated to his obesity, his blood sugar or blood pressure, or his alcoholism. It appears from the record that Bertrand’s elevated blood pressure and sugar levels were due to his obesity and that his obesity was evident to the agent taking his application and from the answers on the application itself. Since the existence of no one of these conditions alone would have been sufficient reason to deny Bertrand’s application, Protective Life was apparently unaware that all of these problems were attributable to Bertrand’s obesity. Also, Bertrand’s alcoholism was apparently under control. Therefore, we cannot say that the trial court was clearly wrong in concluding that had Protective Life been fully apprised of these facts it would have nevertheless still issued the policy.

PENALTIES

The trial court assessed penalties against Protective Life in the amount of six percent per annum from the date the insurer re-eeived Bertrand’s death certificate until the policy limits are paid. The court’s authority ruling is found in LSA-R.S. 22:656 which states:

“All death claims arising under policies of insurance issued or delivered within this state shall be settled by the insurer within sixty days from the date of receipt of due proof of death and should the insurer fail to do so without just cause, then the amount due shall bear interest at the rate of six per cent per annum from date of receipt of due proof of death by the insurer until paid.”

Protective Life claims that its investigation of plaintiff’s claim under Bertrand’s policy revealed enough evidence to sustain a defense of just cause for its failure to pay the claim within 60 days. We agree. Although we have found upon close examination that the alleged misrepresentations on the application for insurance were made unintentionally and did not materially affect the risk undertaken by the insurer, Protective Life was justified in believing it had found such reasons to refuse the claim after its investigation. The investigation uncovered substantial evidence that Bertrand may have had diabetes, hypertension, and a problem with alcohol which he failed to reveal in his application. As we have noted, these problems were not serious, but the medical evidence to that effect was confusing. Furthermore, Protective Life uncovered evidence of Bertrand’s hospitalizations but was unable to clearly determine the reasons for these stays. We have concluded that these were voluntary treatments to “dry out”, that is, to combat alcoholism. These hospitalizations did not materially affect the risk assumed by the insurer because Bertrand’s alcoholism was under control at the time the policy was issued, but Protective Life could not have determined this easily as the hospital records apparently do not reflect the reasons for Bertrand’s stays.

An insurer’s refusal to pay can be found to be not “without just cause” even though its defense is not subsequently upheld in court. Ducote v. Life Insurance Company of Louisiana, 245 So.2d 531 (La.App. 3rd Cir. 1971); and Hendricks v. Connecticut General Life Insurance Company, 244 So.2d 249 (La.App. 3rd Cir. 1971). Protective Life had just cause to believe that Bertrand intended to omit from his application information which may have caused the application to be rejected. Furthermore, the fact that the application did not disclose this information cannot be attributed to Protective Life’s agent. Therefore, we will amend the trial court’s ruling to deny the assessment of penalties against Protective Life.

For the foregoing reasons, we affirm the trial court’s judgment in favor of plaintiff except to amend the judgment to exclude the assessment of penalties of six percent per annum against defendant. The costs of this appeal shall be apportioned equally between appellant and appellee.

AMENDED AND AFFIRMED AS AMENDED.

      . LSA-R.S. 22:656 was amended by Acts 1980, No. 477, § 1 to increase the penalties to eight percent per annum.


author: BOWES, Judge.

text:
    Davis and Maggie NAQUIN and Marshall N. Scott v. GENERAL ACCIDENT INSURANCE COMPANY, Estelle I. Wilson Mortuary, Inc., Daniel J. Copelin, Sr. and Simpson S Super Service, Inc.
    No. 5-54.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 6, 1982.
    Rehearing Denied Oct. 18, 1982.

      Gordon Hackman, Boutte, for plaintiff-appellant.
    Gordon Johnson, New Orleans, for plaintiff.-appellee-intervenor.
    Henry D. McNamara, Jr., Metairie, for defendants-appellees.
    R. K. Christovich, New Orleans, for defendants-appellees.
    Before SAMUEL, BOWES and GAUDIN, JJ.
   BOWES, Judge.

Plaintiffs, who were the victims of a rear-end collision, appeal the judgment of the trial court alleging that insufficient damages were awarded and that the jury failed to apply strict liability to two of the defendants.

FACTS

On August 12, 1976, at approximately 9:40 a. m., a 1975 Ford automobile, owned by Davis J. Naquin and being operated by his wife, Maggie S. Naquin, with Marshall N. Scott as a passenger, was proceeding in the right east bound lane of U. S. Highway # 90, approximately one hundred (100) feet west of the intersection of Butler Drive in Avondale, La. At the same time, a 1973 Cadillac Fleetwood automobile, owned by defendant, Estelle J. Wilson Mortuary, Inc., and being operated by employee, Daniel J. Copelin, Sr., was proceeding in the left east bound lane of U. S. Highway # 90. A collision ensued between the two vehicles when the latter vehicle, owned by Estelle J. Wilson, struck the Naquin vehicle in the left rear as it was stopped for a traffic signal.

Immediately prior to the collision, there was a failure of the steering mechanism of the vehicle driven by Copelin. On June 22, 1976 (approximately one and one-half months prior to the accident) and pursuant to an agreement with Estelle J. Wilson Mortuary, Inc., Simpson Super Service, Inc., had performed certain repairs on the Wilson vehicle. These repairs included extensive overhaul of the steering mechanism for which Simpson Super Service, Inc. was paid a total of $148.40, and which repairs were improperly performed, resulting in the sudden failure of the steering mechanism at the time the accident occurred.

David J. Naquin, as owner of the Ford vehicle, Maggie Naquin, his wife and operator, and Marshall N. Scott, passenger, filed the suit in the 24th Judicial District Court for the Parish of Jefferson, against defendants, General Accident Fire and Life Assurance Corporation, Ltd., its insured, Estelle J. Wilson Mortuary, Inc., owner of the vehicle; Daniel J. Copelin, Sr., driver, and Simpson Super Service, Inc. As a result of the same accident, Southern Farm Bureau Casualty Insurance Company, the collision insurer of the automobile owned by Davis J. Naquin, filed suit against Estelle J. Wilson Mortuary, Inc. Southern was subrogated to the rights of its insured, to whom they had paid $1,041.16 for damage to the Na-quin vehicle under the terms of its policy provisions.

These suits were consolidated and tried before a jury with the Honorable Alvin Rudy Eason presiding. The jury returned a verdict as follows:

Defendants, Daniel J. Copelin, Sr., and Estelle J. Wilson Mortuary, Inc. were not negligent; defendant, Simpson Super Service, Inc., was negligent, and such negligence was the proximate cause of Maggie Naquin’s injuries. The jury awarded $314.50 to compensate Maggie Naquin for her damages, against Simpson Super Service, Inc. The jury further determined that the negligence of Simpson Super Service, Inc. was not the proximate cause of the injuries alleged by Marshall N. Scott. On July 13,1977, judgment was entered pursuant to the jury verdict and the defendants, Daniel J. Copelin, Sr. and Estelle J. Wilson Mortuary, Inc. were dismissed from the suit. Further, judgment was rendered in favor of Southern Farm Bureau Casualty Insurance Company and against Simpson Super Service, Inc. in the amount of $1,041.61. No award was made to Davis Naquin, as owner of the Ford vehicle.

The plaintiffs, Davis J. Naquin, Maggie Naquin, and Marshall N. Scott, have appealed this decision alleging two assignments of error.

LIABILITY

The plaintiffs allege error as to the application of L.S.A.C.C.Art. 2317 (strict liability) to defendants, Daniel J. Copelin, Sr. and Estelle J. Wilson Mortuary, Inc. They contend that Estelle J. Wilson Mortuary, Inc. and Daniel J. Copelin, Sr. are strictly liable, under Article 2317, as owner/custodian, respectively, for the damages occasioned by an unreasonable risk of injury to the plaintiffs from the defective Wilson vehicle. However, it is well settled that such strict liability for the damage caused by the defect existing in the thing owned or under the custody of an individual cannot be imposed if the harm was caused by the fault of a third person. Arceneaux v. Dominigue, 365 So.2d 1330 (La.1978); Loescher v. Parr, 324 So.2d 441 (La.1975).

In Arceneaux v. Dominigue, supra, the Louisiana Supreme Court quoting the leading case of Loescher v. Parr, supra, stated:

"... the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” (Emphasis supplied).

There, the Court held that the owner was not liable under Civil Code Article 2317 for the damage caused by his vehicle where the record showed that the accident in question was caused by the driver’s negligence and, therefore, the owner had sustained his burden of proving that the harm was caused by the fault of a third person.

Since the Loescher decision, this has been the most widely recognized defense to the application of Article 2317 in automobile accident cases. This trend was exemplified by the case of Panek v. Gulf Insurance Company, 341 So.2d 46 (La.App. 3rd Cir. 1976), wherein the Court found that the cause of an accident in which a wheel on a truck had become dislodged, thus striking another vehicle, was due to the prior owner’s (Fruehauf) failure to properly tighten the bolt located on the wheel. Because the damage resulted from the fault of a third person, the owner of the truck (Badcaw-Gulf) was not strictly liable under Article 2317.

In the case before us, the testimony clearly reveals that part of the steering mechanism, specifically the idler arm, on the Wilson vehicle suddenly and without warning failed, causing complete loss of control of the vehicle, and the ensuing collision between the Wilson and Naquin vehicles. In addition, the record clearly reflects that repair work was performed by Simpson Super Service, Inc. in the steering mechanism of the Wilson vehicle not long before the accident, such repairs consisting of work on the idler arm assembly.

This substantial evidence supports the jury’s finding as to the negligence of Simpson Super Service, Inc., in repairing the steering mechanism of the Wilson vehicle. Further, the trial court has adjudged the defendant, Simpson Super Service, Inc., as having negligently performed these repairs on the Wilson vehicle, such negligence being the sole proximate cause of the accident and resulting injuries. In light of the evidence and testimony contained in the record, this finding by the jury cannot be overturned by this Court, and we find no reason to do so. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, supra.

Therefore, in accordance with the above-cited decisions, Estelle J. Wilson Mortuary, Inc. and Daniel J. Copelin, Sr., cannot be held strictly liable under Civil Code Article 2317.

QUANTUM

Plaintiffs additionally contend that they were awarded insufficient damages for their injuries. Defendants argue and the record indicates, however, that there was a sufficient basis, throughout trial, for the jury to question the credibility of the plaintiffs.

The record reflects that one of the plaintiffs, Mrs. Maggie Naquin, saw a Dr. Spence of Houma a few days after the accident. Spence prescribed muscle relaxants on that occasion, but Mrs. Naquin did not return to his office for further treatments. Later, she decided to seek treatment from a chiropractor, Dr. Frank Mooring. It appears from the record that Dr. Mooring agreed to treat Mrs. Naquin and the other plaintiffs without payment until this lawsuit had reached a final settlement or payment of judgment. This would, in itself, form a reasonable basis for suspicion on the part of the jury concerning the credibility and motives of Dr. Mooring and the plaintiffs.

There were also numerous differences between Mrs. Naquin’s testimony at Court and testimony at her deposition. A section of the trial transcript reveals testimony by Mrs. Naquin that she had taken the muscle relaxants prescribed by Dr. Spence, going into detail with regard to the effect of those muscle relaxants. In previous testimony, she emphatically stated that she had not taken any of the muscle relaxants. Dr. Mooring also contradicted the plaintiff’s testimony at trial by confirming that Mrs. Naquin had advised him that she did not even have Dr. Spence’s prescription for muscle relaxants filled by any pharmacy.

The trial transcript also reveals testimony by Mrs. Naquin that she had visited Dr. Mooring before the accident for adjustments and for relaxation. During later testimony at trial, she specifically denied ever having any trouble with her legs, back or hips before this accident. This testimony was contradicted by Mrs. Naquin’s own treating physician, Dr. Mooring, when he admitted that prior to the accident in this lawsuit, he had treated Mrs. Naquin for a matter of months with regard to complaints about her back and hips. Dr. Mooring further contradicted Mrs. Naquin’s testimony when he testified that he had treated her for violent headaches in 1972 and for low back pain and pain in the legs in 1974.

The only medical doctor consulted by Mrs. Naquin was Dr. Charles Spence. He testified at trial that his diagnosis of Mrs. Naquin was “muscle irritation.” Dr. Spence was not even asked by the plaintiff’s counsel whether the muscle irritation was related to the accident made the basis of this law suit. The plaintiff’s own treating physician, Dr. Mooring, stated that he had found degenerative changes in Mrs. Naquin’s neck on August 16, 1976, four days after the accident. He admitted that such a degenerative change could not have been the result of this particular accident, and would definitely have pre-existed the accident made the basis of this law suit.

With regard to plaintiff, Marshall Scott, there was testimony by him during trial that he had gone to Dr. Spence’s office with the intention of being treated by him, but had decided he didn’t want to wait any longer, and went outside and waited for his sister in the car. The only medical doctor seen by him was Dr. C. V. Guillermo, Jr., whose report was entered into evidence. Dr. Guillermo saw Mr. Scott three months after the accident. Dr. Guillermo did not give any diagnosis, but felt that the examination of his eyes and nervous system were “unremarkable.” There is no testimony whatsoever or indication in this report with regard to any opinion of Dr. Guillermo to the effect that any injuries complained of by Marshall Scott were related to the accident made the basis of plaintiff’s law suit. Mr. Scott’s testimony was to the effect that he had been out of work for some 15 years as a result of an accident wherein he sustained massive skull and neck injuries. At trial, he testified that he had been on Social Security Disability for this period of time. There was more than enough reason for the jury to believe that Mr. Scott had been uninjured in the accident made the basis of this law suit.

Concerning the $100.00 deductible claimed as property damage on behalf of Davis Naquin, a reading of the transcript by Davis Naquin leaves no doubt as to the fact that the jury had ample basis to make a determination that Mr. Naquin had actually made a profit with regard to the repairing of his car, and had not sustained any loss at all. Mr. Naquin testified that he was reimbursed $1,141.61 for the damage to his car from his insurance company. He admitted, however, that it only cost him some $800.00 to repair the car. This left him a profit of over $200.00 on his insurance settlement with Southern Farm Bureau Casualty Insurance Company.

The law of the State of Louisiana with regard to the consideration by Courts of Appeal of the adequacy or inadequacy of any award has in the last few years become more clear and specific. The Supreme Court Case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) stated that:

“Before a Court of Appeal can disturb an award made by Trial Court the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports the fact that the lower court abused its discretion can the Appellate Court disturb the award.”

In the case of Reck v. Stevens, 373 So.2d 498 (La.1979), the 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 individual circumstances of the present case. Only after an analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive or inadequate.”

An earlier decision by the Supreme Court, which has been much quoted in the jurisprudence, is the case of Canter v. Koehring Company, 283 So.2d 716 (La.1973). In that case, the Supreme Court ruled that:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of creditability, furnishes a reasonable factual basis for the trial court’s finding, on review the Appellate Court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of creditability and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principal of review is based not only upon the trial courts better capacity to evaluate live witnesses (as compared with the Appellate Courts access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

After reviewing the transcripts, particularly the testimony of Maggie Naquin, Marshall Scott, Davis Naquin and Dr. Mooring, it becomes evident that there were substantial differences between the testimony of those witnesses, and even differences between testimony at trial and testimony in previous depositions, by some of the witnesses. The credibility of the plaintiffs was unquestionably at issue, and the verdict of the jury reflected it’s belief that the testimony of the plaintiffs was not credible and unworthy of belief. We believe that there was, indeed, a more than sufficient basis in the record for the jury’s determination of lack of credibility on the part of the plaintiffs. For this reason, we feel the jury did not abuse its discretion in regard to quantum of damages.

For the above reasons, the judgment of the trial court as to liability and damages is hereby affirmed.

AFFIRMED.


text:
    Walter CHAPMAN v. Frank C. BLACKBURN, Warden, et al.
    No. 82 CA 0302.
    Court of Appeal of Louisiana, First Circuit.
    July 16, 1982.

      Walter Chapman, pro se.
    Joe White, Inmate Counsel, Bastrop, for plaintiff-appellant Walter Chapman.
    William R. Carruth, Jr., Baton Rouge, for defendants-appellees Frank C. Blackburn, Warden, et al.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

After this case was taken under advisement, the court rendered and signed judgment on December 18, 1981. Notice of judgment was sent on the same day. According to the court minutes an order granted the plaintiff a devolutive appeal on April 7,1982. The defendant, State of Louisiana, has filed a motion to dismiss the appeal. The court on June 7, 1982, issued an order to show cause why the appeal should not be dismissed and gave until June 22, 1981 for response, which, however, has not been received.

The stamp of the deputy clerk certifying that notice of judgment was sent is not entirely legible, but there is no doubt as to what it is.

Under Article 2087 of the Louisiana Code of Civil Procedure plaintiff had sixty days from the expiration of the delay of the time for a new trial. The time for appeal had long expired when the appeal was taken on April 7, 1982.

The appeal is therefore dismissed at appellant’s costs.

APPEAL DISMISSED.


author: CURRAULT, Judge.

text:
    NEW ORLEANS FEDERAL SAVINGS AND LOAN ASSOCIATION v. Harry LEE, Sheriff and Ex-Officio Tax Collector For the Parish of Jefferson, and A. Mason Barnes, III.
    No. 5-341.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 4, 1982.
    Santo A. Dileo, New Orleans, for defendant-appellant.

      David C. Loeb, Edwards, Cullen & Loeb, Gretna, for plaintiff-appellee.
    Gerald Arceneaux, Westwego, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   ON MOTION TO DISMISS

CURRAULT, Judge.

The plaintiff-appellee, New Orleans Federal Savings and Loan Association moved to dismiss the appeal. On March 24,1982, the trial court rendered judgment in favor of the plaintiff, granting a permanent injunction enjoining and prohibiting the defendant from selling Lots 8-10 and 13-28 of Square 91, Kenner Project Subdivision, Kenner, Louisiana. On March 29,1982, the defendant, Morris Barnes, III, petitioned the trial court for a suspensive appeal or alternatively for a devolutive appeal and stay order. The trial court denied the application for a suspensive appeal and granted the defendant a devolutive appeal and stay order.

The mover contends that where the trial court has rendered a permanent injunction, no stay order is available, citing as authority L.S.A.-C.C.P. Article 3612. Alternatively, the mover argues the appellant failed to post a bond for the stay order granted by the trial court and accordingly the stay order is without force and effect.

L.S.A.-C.C.P. Article 3612 provides in pertinent part:

An appeal may be taken of right from an order or judgment relating to a permanent or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.

However, in the case here presented the preliminary injunction was granted by the court and the defendant-appellant was enjoined from selling the property acquired at sheriffs sale. Although a suspensive appeal was an alternative proposed to the trial court, such would permit the result sought to be avoided by the trial court’s granting of the permanent injunction, namely the sale of the property.

For the foregoing reasons, the motion to dismiss the appeal is denied.

MOTION TO DISMISS APPEAL DENIED.


author: PER CURIAM.

text:
    STATE of Louisiana In the Interest of Gerald CHINN.
    No. 82 CA 0274.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 23, 1982.
    Wiley Dial, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee, State of Louisiana.
    Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant, Gerald Chinn.
    Before LOTTINGER, COLE and CARTER, JJ.
   PER CURIAM.

This appeal was lodged in this court April 15, 1982, was set for hearing on August 20, 1982, and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered this appeal be dismissed with prejudice.

APPEAL DISMISSED WITH PREJUDICE.

      . Although new Court of Appeal rules have now been promulgated, the old rules were in effect as of the date this appeal was lodged and therefore this case is governed by the old rules.


author: CARTER, Judge.

text:
    Raymond ALLEN v. Sylvester SMITH, Jr.
    No. 14853.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1982.
    Gordon Hackman, Boutee, for plaintiff and appellant.
    Lawrence J. Centola, Jr., New Orleans, for defendant U. S. Suzuki.
    Stephen N. Elliot, Metarie, for defendant Royal Indemnity Co.
    Robert D. Morvant, Thibodaux, for defendant U. S. F & G.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

This appeal is from a judgment by the trial court maintaining an exception of prescription filed by Royal Indemnity Company, plaintiff’s uninsured motorist carrier. The question presented is whether an automobile accident victim’s uninsured motorist carrier is solidarily obliged with the tort-feasor so that the plaintiff’s timely suit against the tortfeasor interrupts prescription as to the uninsured motorist carrier.

On March 19, 1977, Raymond Allen, appellant herein, was involved in an automobile accident in which he was injured. On August 1, 1977, Allen filed suit against Sylvester Smith, the driver of the other vehicle, for damages for personal injuries received in the accident. On September 11, 1978, Allen filed an amended petition in which he brought in as a defendant U. S. Suzuki Motor Corporation, the manufacturer of the motorcycle which Allen was driving at the time of the accident. Allen asserted in his petition that his injuries were caused by the joint and solidary negligence of Sylvester Smith, Jr. and U. S. Suzuki Motor Corporation. Suzuki’s liability is not before this court.

On November 26, 1980, Allen filed his second amended petition, naming as additional defendants United States Fidelity and Guaranty Company, liability insurer of Smith, and, alternatively, Royal Indemnity Company (incorrectly sued as Royal-Globe Insurance Companies), Allen’s uninsured motorist insurer. Royal filed an exception stating that the cause of action had occurred more than two years prior to the commencement of the action against it, and, therefore, had prescribed under La. R.S. 9:5629. On May 15, 1981, judgment was rendered maintaining the exception of prescription and dismissing the suit against Royal Indemnity Company.

Plaintiff appeals with two assignments of error. Because of the disposition of assignment of error, no. 2, it is not necessary to discuss the first assignment.

ASSIGNMENT OF ERROR NO. 2

Plaintiff urges that he should have been allowed to amend his petition to allege soli-dary responsibility of Royal Indemnity Company, his uninsured motorist insurer, with the tortfeasor, who was timely sued. He argues that the exception of prescription filed by Royal Indemnity Company must be denied, since suit against one soli-dary debtor interrupts prescription as to all other solidary debtors. La.Civ.Code art. 2097.

A remand of the suit to allow plaintiff to amend his petition is unnecessary. Whether or not prescription was interrupted can be determined from the face of the pleadings. In accordance with the recent Supreme Court decision of Hoefly v. Government Employees Insurance Company, et al., 418 So.2d 575 (La.1982), we find that timely suit against the alleged tortfeasor, Sylvester Smith, Jr., interrupted prescription as to Royal Indemnity Company, plaintiff’s uninsured motorist carrier.

The Hoefly case arose out of an accident which occurred on November 1, 1976. Mrs. Hoefly was struck and injured as she was getting out of her own car by another automobile driven by a minor. On October 12, 1977, Mrs. Hoefly and her husband filed suit against the owner of the other automobile, the mother of the minor driver of that automobile, and the mother’s liability insurer. On September 5,1980, the Hoeflys filed an amended and supplemental petition naming Allstate Insurance Company, the Hoeflys’ uninsured motorist carrier, as a defendant, alleging that the owner of the car was an uninsured motorist and that the insurance provided by the mother’s liability insurer was insufficient to pay for all the damages. Allstate filed an exception of prescription based on La.R.S. 9:5629, which the trial court sustained. The Court of Appeal affirmed the judgment of the trial court, Hoefly v. Government Emp. Ins. Co., 403 So.2d 853 (La.App.2d Cir.1981). The Supreme Court, however, reversed those decisions and found that the Hoeflys’ timely and properly filed suit against the original defendants interrupted prescription as to Allstate.

The basis of the Court’s decision in Hoefly is that there is an obligation in solido on the part of the tortfeasor and the uninsured motorist carrier.

La.Civ.Code art. 2091 reads as follows:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”

The court in Hoefly found that the tort-feasor and the uninsured motorist carrier are obliged to the same thing, that the tortfeasor and the uninsured motorist carrier each may be compelled for the whole, and that when payment is made by either, the other is exonerated toward the creditor as to the solidary obligation.

The Court further found that the obligation of the tortfeasor and uninsured motorist carrier results primarily from provisions of law, viz., the general rules of delictual responsibility, La.Civ.Code arts. 2315, et seq., and the uninsured motorist statute, La.R.S. 22:1406(D), and that, therefore, an obligation in solido exists by operation of law without requiring an express declaration. La.Civ.Code art. 2093.

Because of the solidary obligation, the tortfeasor and Allstate are debtors in solido. La.Civ.Code art. 2097 provides: “A suit against one of the debtors in solido interrupts prescription with regard to all.” Since the original filing of suit interrupted prescription against the owner of the other vehicle and her liability insurer, it also interrupted prescription against Allstate, the plaintiff’s uninsured motorist carrier.

The record in the instant case shows that the accident occurred on March 19, 1977. Suit was timely filed against the alleged tortfeasor on August 1, 1977. Royal Indemnity Company was named as a defendant in an amended petition filed on November 26, 1980. Had not Allen timely filed suit against Smith, his cause of action against Royal would have prescribed by virtue of La.R.S. 9:5629. Allen’s suit against Smith interrupted the running of prescription as concerns Royal, his uninsured motorist carrier.

For the above reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings. Costs are assigned to appellee.

REVERSED AND REMANDED.

      . La.R.S. 9:5629 reads as follows:
      Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.

      . Plaintiff argued in his first assignment that the trial judge erred in giving retroactive application to a law. (La.R.S. 9:5629). It should be noted that the Louisiana Supreme Court has put this issue to rest in Reichenphader v. Allstate Insurance Company, 418 So.2d 648 (La.1982). In Reichenphader, the Court held that delay of the effective date of Act 444 of 1977 (La.R.S. 9:5629) provided a reasonable time for the plaintiff to assert her rights. Thus, La.R.S. 9:5629 was applied retroactively.


author: EDWARDS, Judge.

text:
    GLENWOOD HOSPITAL, INC. v. LOUISIANA HOSPITAL SERVICE, INC.
    No. 14872.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1982.

      Kent Breard, Monroe, for plaintiff-appel-lee Glenwood Hosp., Inc. (now Glenwood Regiona Medical Center).
    John S. White, Jr., A. Michael Dufilho, Baton Rouge, for defendant-appellant Louisiana Hosp. Service, Inc. (now Louisiana Health Service and Indem. Co.)
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.

      . On February 6, 1975, Louisiana Health Service & Indemnity Company moved and was substituted as the named party defendant. The change was of name only, not of the true party defendant, Blue Cross.

   EDWARDS, Judge.

Louisiana Hospital Service, Inc. appeals a judgment condemning it to pay $15,005.00 plus interest to plaintiff-appellee, Glenwood Hospital, Inc. We affirm.

On February 28, 1974, Glenwood Hospital, Inc., hereinafter Glenwood, filed suit against Louisiana Hospital Service, Inc., hereinafter Blue Cross, alleging that Blue Cross had, in violation of its contract with Glenwood, wrongfully withheld certain payments due Glenwood under numerous patients’ individual insurance contracts. The conflict centered around whether or not “Sani-Sets,” admit kits containing certain items, which were issued to every in-hospital patient at Glenwood, were medical supplies and therefore covered by insurance payments from Blue Cross. Glenwood urged that the Sani-Sets were medical supplies, while Blue Cross disagreed.

Following several procedural developments, on July 26, 1976, both parties, in an apparent attempt to simplify matters, stipulated that

“... they hereby agree to submit to the Court at a trial one limited issue of whether or not ‘Sani-Sets’ are covered under the Member Hospital Agreement and/or B/C subscriber contract ....
“The judgment to be rendered after trial will state the Court’s opinion on this limited issue without prejudice to or effect upon the rights of the parties in any other respect.”

Trial was had on December 2-3, 1976. On May 5, 1977, all parties were notified that Judge McGehee had held that Sani-Sets were not items covered by any agreement. Significantly, no written reasons for judgment were issued and no judgment to this effect was ever signed. Judge Mc-Gehee eventually left the bench and was replaced by Judge Gonzales.

On March 27, 1980, almost three years later, both parties stipulated in the record that, among other things,

“... in event of recovery by plaintiff against defendant in full, the defendant would owe FIFTEEN THOUSAND, FIVE AND 00/100 ($15,005.00) DOLLARS to plaintiff, plus legal interest and all Court costs.”

Both parties, with approval of the court, subsequently agreed to submit the case on briefs and without oral argument.

On May 20, 1981, Judge Gonzales issued written reasons for judgment. Not feeling bound by the May 5,1977, determination of Judge McGehee, Judge Gonzales found that Sani-Sets were medical supplies and that Blue Cross therefore owed Glenwood $15,-005.00 plus interest. Judgment was signed on June 8, 1981. After Blue Cross’ motion for a new trial was denied on July 8, 1981, the present suspensive appeal was taken.

On appeal, Blue Cross’ only specification of error is that, contrary to the doctrine of “law of the case,” Judge Gonzales reversed the allegedly reasonable ruling of Judge McGehee.

The law of the case principle relates to (a) the binding force of a trial judge’s rulings during later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand and (e) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. The law of the case principle is merely a discretionary guide, however. Reargument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. But in cases of palpable error or where, if law of the case were applied, manifest injustice would occur, the principle will not be followed. Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973).

Judge Gonzales did not have a mere doubt as to Judge McGehee’s decision — he was convinced it was wrong. His oral reasons for judgment on the motion for new trial indicate why he felt Sani-Sets were medical supplies. In such a situation, law of the case is simply inapplicable.

As an added point, we note that Judge McGehee never signed a judgment. Thus, there was no final judgment from which Glenwood could have appealed the May 5, 1977 decision. LSA-C.C.P. Arts. 1911, 2083. For three years Blue Cross was free to have presented a judgment which, if signed, would have forced Glenwood to appeal or accept Judge McGehee’s decision as binding. Not having done so, Blue Cross cannot now object to the fact that the May 5, 1977, decision was merely interlocutory and subject to change.

Blue Cross did not, as a ground for appeal, claim that Judge Gonzales’ decision was contrary to the evidence. Nevertheless, after a careful review of the entire record, we cannot say that Judge Gonzales was wrong. Accordingly, the judgment is affirmed. All costs, both trial and appellate, are to be paid by Blue Cross.

AFFIRMED.

      . Wash basin, carafe, tumbler, tray (for tumbler and carafe), emesis basin, soap dish, Der-masage lotion, and bay wipers (100 Kleenexes).

      . “In this case, from the very beginning, I believed that Sani-Sets were medical supplies. When you take water to take aspirin or medication of some type, the glasses and the bottle that furnish that water are as important as the medicine you swallow. When you give a thermometer to take temperature, that’s part of the medical treatment and it ought to be considered medical supplies. I thought that from the beginning.”

      . We do not imply that, were we sitting as a trial court, we would decide as did Judge Gonzales. Sitting as an appellate court, we are not free to so decide. We do not retry cases, we review them.


text:
    UNIVERSAL IRON WORKS, INC. v. FALGOUT REFRIGERATION, INC.
    No. 14962.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1982.
    William S. Bordelon, Houma, for plaintiff & appellant.
    Randall S. Alfred, Atty. at Law, Houma, for defendant & appellee.
    Robert B. Butler, III, Houma, for defendant, State Farm Fire & Cas. Co.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Universal Iron Works, Inc. (“Universal”), brought this action for breach of contract against defendant, Fal-gout Refrigeration and Appliance Service, Inc. (“Falgout Refrigeration”). From a judgment in favor of defendant, plaintiff appeals. We affirm.

Plaintiffs petition alleged the following: Universal had prepared a bid as general contractor on a construction project known as Bristow Offshore Helicopters, Inc. Phase II (“Bristow II”). Falgout Refrigeration had submitted a bid to do the air conditioning, heating and ventilation portions of the project, which was the lowest bid and was incorporated into plaintiff’s bid on the project. Universal was awarded the contract for construction of the Bristow II project. Thereafter, Universal notified Falgout Refrigeration that it had been awarded the construction contract and, therefore, Falgout Refrigeration was awarded the air conditioning, heating and ventilation portions of the job. Falgout Refrigeration, after numerous discussions, informed Universal that it could not do the job as called for in the architectural specifications. As a result of defendant’s failure to perform, plaintiff was required to have the work performed by someone else.

Plaintiff’s petition sought damages for the difference in price between what Falg-out Refrigeration allegedly bid to do the job and what it would cost to have someone else do it. Additionally, plaintiff sought to have Falgout Refrigeration pay the $200.00 per day penalty which plaintiff might owe for late completion of the construction project. Falgout Refrigeration answered plaintiff’s petition, denying the allegations. In its answer, defendant asserted that the price which it quoted to Universal was merely a “ball park” figure on the central air conditioning work alone and that it did not include any additional heating or ventilation work. Falgout Refrigeration denied that this “ball park” figure on the central air conditioning work constituted a binding bid. Finally, Falgout Refrigeration named State Farm Insurance Company as a third-party defendant, alleging insurance coverage for all sums which Falgout Refrigeration might be found to owe Universal.

The district court rendered judgment for defendant, dismissing plaintiff’s demand. The court also dismissed defendant’s third-party demand against State Farm Insurance Company.

In his written reasons for judgment, the trial judge noted that the “factual issue presented by this case is whether a contract existed between the parties such as to allow for recovery of damages.” The trial judge concluded that there was no such contract because there was error on the part of the defendant with regard to the extent of work to be performed. The court made a factual finding that defendant had made a bid but that it was based solely on the installation of central air conditioning equipment and that defendant did not know of the additional heating and ventilation requirements. The court concluded that defendant’s mistake relative to the amount of work to be done constituted an error of fact which precluded formation of a contract. Since there was no contract between the parties in existence, the court held that no suit for damages could be maintained.

Plaintiff has appealed the judgment of the district court. Plaintiff’s appeal raises the following specifications of error, which will be discussed separately:

1. The Court erred in its determination that it was not proven by Plaintiff that the Defendant knew or should have known that Air Conditioning, Heating and Ventilation work were required from the Defendant on this project.
2. The Court erred in allowing testimony in regard to other jobs, especially non-architectural jobs, that had been entered into between the parties litigant.
3. The Court erred in its application of the facts of this case to the laws regarding error.

Plaintiff contends that the trial court erred in its factual conclusion that Universal failed to prove that defendant knew it would be required to do the heating and ventilation work on the Bristow II project in addition to the central air conditioning work. It is axiomatic that such a factual finding is subject to reversal on appeal only upon a finding of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Our review of the evidence in the record reveals no such error.

Terry Trosclair, Secretary-Treasurer of Universal, functioned as general contractor on the Bristow II project. Trosclair testified at trial that he phoned Falgout Refrigeration approximately ten days before the Bristow II bid date. Trosclair was unable to remember with whom he spoke that day, but thought that it was either Leroy or Peter Falgout. He testified that he told the person with whom he spoke that he would like Falgout Refrigeration to submit a bid for the Bristow II project on the central air conditioning work as well as the heating and ventilation work. Trosclair testified that he placed a copy of the architect’s specifications relative to those portions of the work inside a set of plans and left them with his secretary so that someone from Falgout Refrigeration could pick them up. Trosclair did not know what happened to them after that. Plaintiff failed to prove that anyone from Falgout Refrigeration ever picked up the plans and specifications.

Trosclair further testified that he phoned Falgout Refrigeration several times on March 26, 1980, the day that bids on the Bristow II project were due. According to Trosclair, he was told each time that Peter Falgout, President of Falgout Refrigeration, had not yet worked up a bid. Tros-clair testified that finally, about 20 to 30 minutes before his final bid was due, he spoke to Peter Falgout and received defendant’s bid. Trosclair admitted that in all of his conversations with Falgout Refrigeration personnel on March 26, 1980, he never mentioned the extent of the work to be performed.

Peter and Leroy Falgout testified on behalf of the defendant. Each denied ever having spoken to Trosclair about the Bris-tow II project prior to when Trosclair called for Falgout Refrigeration’s bid on March 26, 1980. Each denied having any knowledge of the Bristow II job prior to that date. Neither of them recalled picking up the Bristow II plans and specifications from Universal.

Peter Falgout testified that he was first made aware of the Bristow II project and first saw the plans when Trosclair telephoned on March 26 seeking his bid. Peter Falgout testified that he found the plans on a desk in his office which held a number of other plans and that when he unrolled them, there were no specifications inside. According to Falgout, he told Trosclair that he needed time to work up a bid but Tros-clair told him he was in a hurry and would settle for a “ball park” figure. Peter Falg-out testified that the price he quoted was only for the central air conditioning work and that Trosclair never told him that he wanted Falgout Refrigeration to bid on any additional heating and ventilation work.

The evidence in the record reveals that Universal had been doing business with Falgout Refrigeration for approximately two years. During that time, Falgout Refrigeration had submitted approximately 75 to 100 bids to Universal, all for central air conditioning work. Falgout Refrigeration was awarded approximately 15 of the central air conditioning jobs upon which it had bid. Falgout Refrigeration had never bid on or performed ventilation or special heating work for Universal.

On the basis of the evidence contained in the record, we cannot say that the trial court was manifestly erroneous in concluding that plaintiff failed to prove that defendant knew its bid included the heating and ventilation portions of the project in addition to the central air conditioning work. The trial court’s factual finding was based upon an evaluation of witness credibility. The trial court is in a unique position to make such a determination. Canter v. Koehring Company, supra. In the instant case, we are unable to say that the trial court’s factual findings, based upon its assessment of witness credibility, were manifestly erroneous.

Appellant next contends that the trial court erred in admitting, over objection, testimony relative to other jobs which Falg-out Refrigeration had performed for Universal, especially those which were not handled by an architect as was the Bristow II job. Plaintiff maintains that such testimony was irrelevant and immaterial to the question of the amount of work which defendant agreed to perform on the Bristow II project.

Assuming, arguendo, that such testimony was improperly admitted, such admission would not constitute reversible error. As noted above, the trial court found as fact that defendant was unaware of the extent of work which plaintiff expected it to perform. As the trial court noted in its written reasons, this factual finding was required because “the defendant testified that he was unaware of these facts and the plaintiff has not shown that he knew or should have known of them.” Disregarding the prior dealings between the parties, the plaintiff still failed to prove that defendant knew its bid included work in addition to installation of the central air conditioning system. If the trial court committed any error, it was harmless because exclusion of the contested evidence would not have changed the result in this case.

Finally, plaintiff asserts that the trial court erred in finding that defendant’s unilateral error vitiated its consent and prevented formation of a contract. Plaintiff contends that the trial court failed to properly apply the law with regard to error and its effect upon contracts. Universal relies upon LSA-C.C. art. 1826, which provides as follows:

“No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

Plaintiff asserts that Falgout Refrigeration’s error cannot prevent formation of a contract unless Universal knew that the error was the principal cause of the agreement or must be presumed to know because of the nature of the agreement. Universal maintains that article 1826 requires proof that it knew of Falgout Refrigeration’s error with respect to the amount of work to be performed.

Plaintiff’s argument is meritless because it is based on a misconception. LSA-C.C. art. 1826 applies only to an error as to the motive of a contract. In the instant case, the trial court did not find that Falg-out Refrigeration made an error as to the motive or principal cause of the contract.

LSA-C.C. art. 1819 provides that error is one of the vices of consent which prevent formation of a contract. According to LSA-C.C. art. 1820, such error made be one of fact or of law. With regard to error of fact, LSA-C.C. art. 1823 provides that it may be one of three kinds:

“Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

LSA-C.C. art. 1826, which plaintiff relies upon, applies only in instances of error in the motive of the contract. In the instant case, defendant’s error was not in the motive of the contract, but in the “subject matter of the contract itself.” LSA-C.C. art. 1841 provides:

“Error as to the nature of the contract will render it void.
“The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not [no] contract.”

The defendant erroneously believed that the contract created an obligation to install central air conditioning only. Unilateral error of fact is sufficient to prevent formation of a contract. See North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App. 2nd Cir. 1973). This error as to the nature of the contract vitiated defendant’s consent and prevented formation of a contract.

Plaintiff’s argument is without merit because the article which plaintiff relies upon has no application to error as to the nature of a contract. The trial court correctly applied the laws regarding error and its effect upon the formation of a contract.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . The caption of plaintiff’s petition erroneously identifies the defendant as “Falgout Refrigeration, Inc.”

      . These portions of the work consisted of three distinct elements: (1) central air conditioning work, with central heating as a component part thereof; (2) heating work which comprised additional heating units that were separate and apart from the central heating system; and (3) ventilation work which was separate from both the central air conditioning system and heating units.

      . Falgout Refrigeration has not appealed the dismissal of its third-party demand. Therefore, that portion of the district court’s judgment is final.


text:
    Elmer CHAUVIN, Jr.; Stephen Christofferson; Raphael Collins; O’Niel Bascle, Jr.; Leroy Carpenter; Keith Chauvin; Annie Lorene Hebert Roberts; Gary J. Moore; Stephen J. Wallis; Claude Kern Pirtle; Glenn P. Pellegrin; Robert Chouest; Linard Lyons; and Jimmy Creppell v. Kenneth Paul MATHERNE, d/b/a Le Visage Rouge Mobile Home Park and Carl Heck, Jr., d/b/a Century 21—Acadia Realty & Development Co., Inc.
    No. 82-CA-0361.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 24, 1982.

      Robert J. Prejeant, Houma, for plaintiffs and appellants.
    Stephen E. Caillouet, Thibodaux, for defendants and appellees.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Defendant-appellee has moved for dismissal of plaintiffs’ appeal on the ground that it is untimely.

On August 3, 1981, plaintiffs, numbering 14 persons in all, filed a petition against defendants seeking a temporary restraining order, preliminary injunction and permanent injunction. Plaintiffs sought to prohibit defendants from constructing a trailer park in a particular subdivision. The requested temporary restraining order was signed by the district judge on August 4, 1981.

One of the defendants, Matherne, filed various exceptions as well as a rule to dissolve the temporary restraining order and for damages. On August 31, 1981, a hearing was held on defendant’s exceptions and rule. On September 1,1981, the trial court rendered and signed a judgment in favor of defendants dissolving the temporary restraining order and dismissing “the preliminary injunction instituted by the plaintiffs.” Additionally, the plaintiffs were held liable to Matherne for damages resulting from wrongful issuance of the temporary restraining order. Notice of judgment was served on plaintiffs’ attorney on September 2, 1981.

On September 30, 1981, plaintiffs filed a motion for a new trial. On December 29, 1981, the trial court, by written judgment, dismissed plaintiffs’ motion on the ground that it was not timely filed.

On February 18, 1982, plaintiffs filed a motion for devolutive appeal of the September 1,1981, judgment. Defendant-appellee, Matherne, has moved to have that appeal dismissed on the ground that it is not timely-

At the outset, we note that the judgment appealed consists of three distinct parts: (1) dissolution of the temporary restraining order; (2) dismissal of the preliminary injunction suit; and (3) money judgment for damages.

Appeals from judgments involving temporary restraining orders and preliminary injunctions are governed by LSA-C.C.P. art. 3612, which provides as follows:

“There shall be no appeal from an order relating to a temporary restraining order.
“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
“An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
“Except as provided in this article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.”

Under the clear provisions of the above article, “[tjhere shall be no appeal from an order relating to a temporary restraining order.” Thus, that portion of the district court’s judgment which dissolved the temporary restraining order is not ap-pealable.

It is equally clear that the portion of the judgment dismissing the preliminary injunction suit was not appealed timely. Under LSA-C.C.P. art. 3612, a judgment relating to a preliminary injunction must be appealed within fifteen days from the date of judgment. An untimely motion for new trial has no effect upon the running of appeal delays set forth in LSA-C.C.P. art. 3612. Morris v. Transtates Petroleum, Inc., 246 So.2d 183, 258 La. 311 (1971); Cuccia v. Bozeman, 316 So.2d 800 (La.App. 4th Cir. 1975). As noted above, the judgment appealed was rendered September 1, 1981. Inasmuch as the order of appeal was not filed until February 18,1982, it is manifestly obvious that the appeal, with regard to dismissal of the preliminary injunction suit, was not within the fifteen-day appeal delay period.

The only remaining portion of the appealed judgment is the trial court’s award of damages to Matherne for wrongful issuance of the temporary restraining order. The law with regard to appeal delays for such a judgment is set forth in LSA-C.C.P. art. 2087 as follows:

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

In the instant case, judgment was rendered and signed on September 1, 1981, and notice of judgment was served on appellants’ attorney on September 2, 1981. The motion for new trial was not filed until September 30, 1981. LSA-C.C.P. art. 1974 provides for a seven-day delay, exclusive of legal holidays, for applying for a new trial. Plaintiffs’ motion for new trial was not timely because it was filed after the seven-day delay period, which expired on September 14,1981. Since the motion for new trial was untimely, it did not affect, interrupt or extend the delay for appealing. Willie v. Otasco, 351 So.2d 844 (La.App. 1st Cir. 1977).

Therefore, under authority of LSA-C. C.P. art. 2087, the appeal delay began to run upon the expiration of the time to apply for a new trial, on September 14, 1981. The appeal delay expired 60 days later, on November 13, 1981. The motion for appeal, filed February 18, 1982, was untimely.

In opposing the motion to dismiss, appellants note that seven of the plaintiffs were dismissed by ex parte order of the trial court on August 21, 1981, but that the September 1, 1981, judgment for damages was rendered against them as well as the seven remaining plaintiffs. The argument is made that their attorney could no longer serve as counsel of record for parties who had been dismissed and, therefore, each of these plaintiffs should have been personally served with notice of judgment. Plaintiffs contend that the delay for appeal never commenced to run since these seven were not personally served with notice of judgment.

The motion and order signed on August 21, 1981, is ambiguous. The motion requests dismissal of the seven “parties-plaintiff” because they were not available to sign an increased bond which the trial court required as surety for the previously issued temporary restraining order. However, the order dismisses the seven persons without designating their capacity. Reading the motion and order together, it is obvious that the parties named therein were dismissed in their capacity as plaintiffs.

Matherne filed his rule to dissolve the temporary restraining order and for damages on August 17, 1981, prior to the dismissal of the seven plaintiffs. Service was made on all of the plaintiffs through their attorney. Matherne’s request for damages is an incidental demand in the nature of a reconventional demand. LSA-C.C.P. art. 1031. The effect of the dismissal of a plaintiff in the main demand upon the incidental demand is regulated by LSA-C.C.P. art. 1039:

“If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.”

Since Matherne’s incidental demand had already been pleaded, the dismissal of the seven “parties-plaintiff” had no effect upon their status as plaintiffs in reconvention. Therefore, service of the notice of judgment upon plaintiffs’ attorney, who remained their attorney of record, served to commence running of the delay for appeal.

For the reasons assigned, appellants’ appeal is dismissed at their costs.

APPEAL DISMISSED.