author: STOKER, Judge.

text:
    Dr. Joseph B. HARGRODER, Earl Hargroder, Jr. and Irma Hargroder Gremillion, Plaintiffs-Appellants, v. Howard H. HARGRODER, Defendant-Appellee.
    No. 8299.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    William N. Knight, Jennings, for plaintiffs-appellants.
    J. Nilas Young and H. Kent Aguillard, of Young & Burson, Eunice, for defendant-ap-pellee.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

This is an appeal in a suit for reformation of two acts of sale of land. The plaintiffs-appellants contend that the two instruments should be reformed to reflect a reservation of mineral rights. This action is an interfamily suit involving the mineral rights to two small tracts of land. The parties and their father partitioned the succession of their mother. From two larger tracts which were not part of the succession the plaintiffs-appellants conveyed to the defendant two small tracts of land, one of four acres and one of one acre. The larger tracts were donated to the plaintiffs and defendant by their father and their mother prior to the mother’s death.

The issue in this case is whether the conveyances to the defendant should have contained reservations of the mineral rights. The partition itself is not under attack.

Over the objections of the defendant, the trial court permitted the plaintiffs-appellants to introduce parol evidence in an effort to prove that the parties intended to convey the two small tracts with a reservation of the minerals. After trial the trial court ruled in favor of the defendant and rejected the demands of the plaintiffs for a reformation of the two acts.

FACTS

The plaintiffs are Dr. Joseph B. Hargro-der, Earl Hargroder, Jr. and Irma Hargro-der Gremillion who are brothers and sister. They sued their brother, Dr. Howard H. Hargroder. Within a year prior to her death, the mother of these parties, Mrs. Earl Hargroder, Sr., and her husband, donated two tracts of land to the children (the four parties to this suit). One was a tract of 84 acres on which a catfish pond was located; the other tract contained 160 acres on which was situated an irrigation water well. On April 26, 1974, the father and the four surviving children voluntarily partitioned a number of properties, movable and immovable, which comprised the succession of their mother. The father’s interest was one-half (presumably his community interest). The children owned a one-twelfth interest each (presumably a one-fourth interest each in their mother’s community interest). The father of the parties is not involved in this present controversy.

In working out the division of property for partition it was decided that the four children would each retain a one-fourth undivided interest in the mineral rights in the aggregate of immovable property which was partitioned among them. The partition agreement, Exhibit P — 1, reflects this reservation. Plaintiffs through this reformation action do not seek to alter the partition agreement in any way.

On the night of April 26,1979, the parties met with their attorney in connection with working out the partition. Apparently the meeting lasted several hours. The details of the partition agreement were worked out including an agreement that the four children would each retain an undivided interest in all of the mineral rights pertaining to all of the immovable property partitioned among themselves. It was also agreed that the defendant, Howard H. Hargroder, should be permitted to have out of the property not involved in the succession the four-acre tract containing the catfish pond and the one-acre tract which contained the irrigation water well. As noted, this property was not involved in the partition because it had already been donated to the four children by the mother and father prior to the mother’s death. On the same day as the partition, April 26, 1979, an act of sale was signed by Earl Hargroder, Sr., Earl Hargroder, Jr., Joseph B. Hargroder, and Irma H. Gremillion conveying to Howard H. Hargroder the four acres for a consideration of $10.00 “plus other valuable consideration”.

On June 29,1979, Earl Hargroder, Jr. and Joseph B. Hargroder, and Irma H. Gremil-lion conveyed to Howard H. Hargroder the water well in question together with one square acre of land surrounding it to be taken from the 160 acres. The recited consideration for the sale was $12,000.00.

The parties are in agreement that the $10.00 for the four acres was néver paid and that the “valuable consideration” consisted of certain personal property of the mother which Howard H. Hargroder conveyed to his two brothers and sister. The parties agree that the $12,000.00 cash was paid for the water well and one acre.

The two acts of sale did not contain reservations of mineral rights. At some later time the three plaintiffs contended that the two conveyances were a part of the total agreement involved in the partition and that it was intended that a reservation of mineral rights be included in the two sales in the same manner as was included in the partition. The defendant denied there was any such intention. The essence of this law suit is a determination of whether there was any such intention in order to determine whether the two acts of sale should be reformed.

At trial Dr. Howard H. Hargroder testified on cross examination and on direct examination. Also, Dr. Joseph B. Hargro-der testified, and it was stipulated that his brother Earl Hargroder, Jr., and his sister, Irma Hargroder Gremillion, would testify substantially as he did. In addition, the attorney who handled the succession and the two sales testified. The attorney had no recollection of any discussions concerning a reservation of minerals under the one acre and four acre tracts. It appears that after the conference of several hours he dictated the substance of what had been agreed upon into a tape recorder and that this was later transcribed. The transcription makes no mention of any agreement to reserve minerals under the two small tracts conveyed to defendant.

Dr. Howard H. Hargroder denies that there was ever any intention for a reservation of minerals to affect the two parcels of land he purchased. Dr. Joseph B. Hargro-der testified that although there was no specific discussion of the matter, that the nature of the discussions in general was such that it was certainly the intent of himself and his brother and sister that the reservation be made. His testimony was that the sale was simply a part and parcel of the total partition transaction. He contends that the reason for the device of the acts of sale was because the attorney had essentially worked out the partition, and the attorney suggested that it would be simpler to handle the transfer of the two small tracts through the two acts of sale. Hence, Dr. Joseph B. Hargroder reasons that it was intended that the two sales actually be a part of the partition arrangement.

INTERPRETATION OF INTENT

The parties appear to be in general agreement as to the law which governs this case. The plaintiffs bear the burden of proving that an error or mistake was made in confecting the two acts of sale. The proof required to justify reformation must be of the strongest possible type. The question for determination is factual — one of intent. Even considering the parol evidence admitted subject to defendant’s objections, plaintiffs-appellants have failed to carry their burden of proof.

It is quite possible to conclude that obtaining defendant’s agreement to the partition may have been contingent upon an agreement that he receive or be permitted to buy the four acres containing the pond. Defendant admitted that the transfer of the four acres on the same night that the partition was agreed to and signed was “tied in with the partition”. Tr. 63. However, this admission does not carry with it the implication that the parties were to include in the conveyance a reservation of the mineral rights, one-fourth to each party, in the same manner as was done in the partition agreement.

A careful reading of the testimony convinces us that plaintiffs-appellants have not borne the burden of proof in this case.

For the foregoing reasons the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . The property in question is described more particularly as follows:
      “The catfish pond and its adjacent levy surrounding same located in Section 8, Township 7 South, Range 2 East and being a portion of the 84 acre tract of land acquired by Vendors and Vendee by Act of Donation from Earl Hargroder Sr. and Irma Cannon Hargroder dated September 22, 1976, and being more particularly described as consisting of approximately Four acres, more or less, and being located in the South East comer of said 84 acre tract of land.”

      . The property in question is described more particularly as follows:
      “The water well together with one (1) square acre of land surrounding said water well, and being a portion of the 160 acres and improvements situated thereon being located in the Northeast Quarter in Section 16, T-7-S, R-2-E, Acadia Parish, Louisiana, which said 160 acres and improvements were acquired by all of Appearers as per an Act of Donation from Mr. and Mrs. Earl Hargroder, Sr., dated December 30, 1974.”

      . Adair v. Compton, 360 So.2d 532 (La.App. 2nd Cir. 1978); United Gas Pipeline Co. v. Singleton, 241 So.2d 93 (La.App. 3rd Cir. 1970), writ denied 257 La. 457, 242 So.2d 578, 579 (La.1971); and Starns v. Ducote, 254 So.2d 301 (La.App. 3rd Cir. 1971).


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Kathleen THAMES, Plaintiff-Appellant, v. Clebert ZERANGUE, Jr., and Safeco Insurance Company, Defendants-Appellees.
    No. 8301.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Elizabeth Dugal, Lafayette, and DeJean, DeJean & DeJean, Broderick DeJean, Opel-ousas, for plaintiff-appellant.
    Franklin, Moore & Walsh, Charles O’Brien, III, Baton Rouge, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   CUTRER, Judge.

This suit arose out of an automobile accident which occurred on May 27, 1979. The plaintiff’s vehicle was struck from the rear by defendant’s pickup track. A settlement was entered into regarding the property damages. The plaintiff, Kathleen Thames, then brought suit against the defendants, Clebert Zerangue, Jr., and his insurer, Safe-co Insurance Company (Safeco), for personal injuries allegedly caused by the accident. The jury rendered a general verdict in favor of the defendants and against the plaintiff. A judgment was rendered accordingly. The plaintiff appeals. We affirm.

The issue is whether the jury was clearly wrong in this determination.

The facts are as follow:

Both the plaintiff and the defendant were proceeding in a southerly direction on the Evangeline Thruway, or Highway 167, in Lafayette, Louisiana. Both drivers were in the left-hand lane. The defendant testified that he was momentarily distracted by a car stalled in the right lane. When he directed his attention back to his own lane, he saw the plaintiff’s vehicle directly in front of him and could not avoid hitting it from the rear and knocking it into the car ahead. The defendant’s truck suffered about $450.00 in damages and the plaintiff’s 1978 Toyota was a total loss. The defendant pleaded guilty to a charge of following too close.

It is clear from the relatively brief testimony concerning the occurrence of the accident that the defendant’s conduct constituted negligence. He admitted being inattentive to the lane ahead of him although only momentarily.

When a rear end collision occurs, the driver of the following vehicle is generally presumed to be negligent and will only be exonerated where he can reasonably explain the cause of his running into the vehicle ahead. Coates v. Marcello, 235 So.2d 162 (La.App. 4th Cir. 1970); Hester v. Stewart, 177 So.2d 430 (La.App. 1st Cir. 1965). The defendant here made no such reasonable explanation.

The principal issue at trial and the question upon which this decision must turn is whether the plaintiff established that she suffered injuries as a result of the accident. This is a factual determination. The appeal court should not disturb the findings of the trier of fact in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Manifest error means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). With this principle in mind we will examine the record to determine if the jury was clearly wrong in failing to award damages.

The plaintiff testified at length to the effects of the accident. She also described in great detail the various diagnostic tests which she underwent. She stated that after the accident she started suffering severe headaches, occasional blurred vision, intermittent swelling of the right arm and stomach ulcers.

On cross examination plaintiff admitted that she had trouble with her arm swelling before the accident. She stated that she complained of it to her family physician in January 1979, six months before the accident. Also, she admitted that she had visual problems before the accident. Plaintiff felt that the stomach ulcer, which was diagnosed by a family physician over a year after the accident, was the result of stress due to her financial problems which arose as a result of medical expenses and expenses resulting from her having to purchase a new car.

The record reflects, however, that practically all her medical expenses were timely paid by a group insurance company (Metropolitan) and by Safeco, as they became due. Also, she admitted that the purchase of the new car increased her monthly car note by only $25.00. Plaintiff also stated that she continued her work after the accident except for those days she was seeing doctors for examinations and tests.

Plaintiff called two co-workers (plaintiff was a newspaper reporter), her father and sister, as “before and after” witnesses. These witnesses testified generally that the plaintiff had not incurred any swelling of her arm nor any visual problems before the accident. They had noticed these problems after the accident.

Dr. Richard Hill, a family practitioner, had been the plaintiff’s family physician for sixteen years before the accident. He testified that plaintiff had “a long list of psychological problems.” He stated that plaintiff was a type of person who would come to his office with a “laundry list of complaints.” She would actually write out a list of her complaints. Dr. Hill testified that plaintiff complained of headaches and visual problems (blurred vision) in January 1979, five months before the accident. He also stated that even though plaintiff had many complaints over the years both before and after the accident, he had not been able to find any physical condition, except the ulcer of 1980, that would explain plaintiff’s complaints.

Dr. Hill saw plaintiff July 27, 1979, about two months after the accident. Plaintiff was complaining again of swelling and numbness of the right arm. His examination revealed no basis for the complaint. He sent plaintiff to a Dr. Clifford, a neurosurgeon, for examination. This physician reported to Dr. Hill that the tests he performed were negative.

Plaintiff saw Dr. Hill twice in October 1979 for reasons wholly unrelated to, trauma.

Dr. Hill saw plaintiff again in April 1980. She was having pain in her stomach as well as lower abdominal pain. Her stomach pain proved to be the result of a gastric ulcer. The diagnosis of the ulcer was made on May 27, 1980. The ulcer had healed by October 1980 when the plaintiff returned to Dr. Hill’s office. Plaintiff had also been to Dr. Hill’s office on July 21,1980, with acute torticollis, spasm in the muscles of the neck. The muscle spasm could be felt. This was the first time Dr. Hill could illicit spasm in her neck and this was about fourteen months after the accident. He was of the opinion that this neck spasm could not be related to the accident of May 1979.

Plaintiff was referred to Dr. Albon Young, a neurosurgeon of Lafayette, Louisiana. Plaintiff was complaining of arm and visual problems.

The history given to Dr. Young was detailed. We shall quote parts of same as follow:

“Q. When was the first time you saw her?
“A. I saw Ms. Thames on December 28, 1979 at the request of Dr. John Charles Dugal.
“Q. What purpose was she referred to you?
“A. Ms. Thames was referred to me for evaluation of multiple complaints including complaints referable to her right arm as well as transien visual disturbances.
“Q. And you made a Neurological examination?
“A. I did.
“Q. What did that consist of?
“A. Historically Ms. Thames responded to me that she had first begun to complain of visual disturbances in the early part of 1979 as well as an episode of swelling with respect to the right arm early that year. The right arm symptoms apparently resolved spontaneously whereas the visual disturbances persisted. She was seen by a Neurosurgeon as well as a local physician in Baton Rouge who performed an evaluation, an extensive evaluation, including hospitalization and multiple invasive tests. These were felt to be non-remarkable. Ms. Thames then came to Lafayette where she saw Dr. Dugal and because of some continued complaints Dr. Dugal suggested that I evaluate her. At the time that I saw her in December of 1978 she gave me that history stating that also in June . . .
“Q. Excuse me, when you said December of 1978 do you mean . . .
“A. Excuse me, 1979.
“Q. I just wanted to keep . . . thank you.
“A. At that time she described problems related to the right arm since June of 1979 and persistent since that time. She stated on that date that there was also some vague loss of strength of the right arm. In the interval she was worked up in Baton Rouge and these symptoms had persisted at the time when she saw me.”

Referring to the work up that had been done in Baton Rouge, Dr. Young stated that:

“A. The patient underwent a lumbar spinal tap, diagnostic study to look at the contents, chemical and cellular of the spinal fluid. She underwent four vessel cerebral antiograms, a study utilized in demonstrating the vascular characteristics of the brain and she also underwent a computerized axiotomagram of the brain known as a CP scan with and without contrast enhancement. All of these studies were interpreted by report, I must emphasize I have not seen these studies, but by report these studies were interpreted as normal.”

This physician also found some decrease in the muscles of the back of plaintiff’s hand near the thumb. He felt that this condition could be an indication of nerve root compression in the cervical region. He was aware that prior x-rays had reflected a normal cervical condition. He suggested a myelogram. Plaintiff refused this. He prescribed medication and a cervical collar.

Dr. Young saw plaintiff again on May 12, 1980. Plaintiff told him she never used the collar and that she had taken her medicine for only one week. Plaintiff reported that the arm and cervical problems had resolved themselves.

Dr. Young stated that his prior evaluation of a possible nerve root problem was based primarily upon the subjective complaints of the plaintiff. Also, he stated that the complaints of visual impairment were not connected to any trauma. Such a problem, if it did exist was attributable to migraine headaches or vascular abnormality.

Plaintiff consulted with a psychiatrist, Dr. David Rees, on one occasion, on July 9, 1980. She was complaining of stomach problems. This physician’s diagnosis was as follows:

“Q. I have a report dated August 20, 1980, did you reach a psychiatric diagnosis of Kathleens [sic] problems?
“A. The diagnostic labels that I used were acute situational adjustment reaction with psycho psyehiologic gastro intestinal symptoms. The words are not that frightening really, it’s just a fancy way of saying that she was distressed and her stomach hurt. If you would like me to explain all those terms I will.”

The history that plaintiff related to the doctor was that she had an automobile accident in May 1979 and that the immediate results of that accident were severe headaches, some visual impairment and numbness and weakness in her right arm. The problems persisted from June through November 1979 during which time she saw several doctors and has hospitalized four times for tests. The medical bills and purchase of a new car caused financial distress which, coupled with her problems in working, caused by the symptoms in her arm, caused emotional distress. That distress caused her to develop gastric symptoms in February 1980 and an ulcer was diagnosed.

The doctor testified that the problems related to him by plaintiff can cause stress and that these stresses can manifest themselves physically. Chronic muscle tension can develop in the neck so that these muscles ache and headaches ultimately develop as a result. He stated that plaintiff’s migraine headaches could probably have been precipitated by this stress. He also stated that her stomach ulcer could be caused by stress.

We must not overlook the fact that the history upon which Dr. Rees based his conclusions differs from the history as related by Dr. Hill and Dr. Young. Dr. Hill testified that the plaintiff had complaints of headaches and visual disturbances January 1979, five months before the accident occurred. Dr. Young stated that the plaintiff related a history of visual disturbances dating since before the accident and, further, Dr. Young refused to relate such symptoms directly to trauma. Dr. Hill also testified that the plaintiff had a history of gastric complaints. The plaintiff had had stomach trouble as a child and he had found inflammation of the G. I. tract or gastreoenteritis as late as January 1979.

Dr. Rees also discussed the anxiety caused by medical expenses and the fact that such anxiety could be the cause of the ulcer. Dr. Rees was not furnished the information that plaintiff’s medical bills were paid directly by insurance. In fact, the total expenses incurred by the plaintiff pri- or to the discovery of the ulcer, which were not reimbursed by her insurer, were less than $200.00

A detailed review of the medical testimony reveals that plaintiff’s complaints of arm and visual problems preceded the accident of May 1979. Further, the consensus of opinion among the physicians was that the complaints of arm and visual problems were neither caused by nor connected with trauma of the accident. Likewise the problems of stomach ulcers were not related to the accident.

The jury had the duty to evaluate the testimony and consider the weight and credibility that it would attach to such testimony. We are not to disturb such evaluation by the jury unless the evidence reflects that the jury committed manifest error or was clearly wrong in its evaluation. We find that the evidence would support a finding that plaintiff’s complaints were not related to the accident.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal shall be paid by plaintiff-appellant.

AFFIRMED.

      . In the very recent case of Napoli v. State Farm Mutual Automobile Insurance Company, et al., 395 So.2d 720 (La.1981), the Supreme Court was faced with a very similar factual situation. Plaintiff was a passenger in a vehicle which was struck from the rear. The car was a total loss. The plaintiff failed to prove trauma related cervical injuries. The medical testimony reflected that the plaintiff’s cervical problems preceded the accident. The jury award of “$.0” was affirmed.


author: FORET, Judge.

text:
    J. Harold BOURQUE, et al., Plaintiffs-Appellees, v. David W. TYLER, Defendant-Appellant.
    No. 8305.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Tommy J. Johnson, Shreveport, for defendant-appellant.
    Guillory, McGee, Mayeux & Fontenot, Cornelius Dupre, II, Eunice, for plaintiffs-appellees.
    Wm. F. Gandy, Jr., Broadhurst, Brook, Miller & Reed, Lafayette, for garnishee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   FORET, Judge.

David W. Tyler (appellant) appeals from a trial court’s judgment denying his motion to dissolve a writ of attachment. J. Harold Bourque and Helen Pellerin Bourque (ap-pellees) requested the issuance of that writ.

Appellants present the following issues:

(1) Whether the trial court erred in denying appellant’s motion to dissolve the writ of attachment, and
(2) Whether the trial court erred in allowing a teletype message in evidence over appellant’s objection that it was hearsay.

FACTS

Appellees instituted a wrongful death action on October 20, 1980, alleging that appellant had murdered their son, Kenneth J. Bourque, in Houston, Texas, on either the 10th or 11th of October, 1980. Their petition contained a request for the issuance of a writ of attachment based on a number of grounds. The trial court ordered the issuance of the writ, and the Sheriff of Lafayette Parish seized appellant’s account in the First National Bank of Lafayette which contained $17,793.59.

Appellant was taken into custody in Monroe, Louisiana, on October 12, 1980, pursuant to a fugitive warrant issued in Harris County, Texas, and is presently incarcerated in Ouachita Parish. Appellant filed a motion to dissolve the attachment on November 10, 1980, alleging that the writ had been wrongfully obtained, and he sought damages and attorney’s fees. A contradictory hearing on the motion was held and the trial court rendered judgment on December 11, 1980, denying the motion. Appellant was granted a suspensive appeal from the trial court’s judgment.

THE WRIT OF ATTACHMENT

Appellant first contends that the trial court erred in finding that the allegations of appellees’ petition set forth specific facts upon which their request for the issuance of the writ of attachment was based, rather than being conclusory. Appellant cites the requirements of LSA-C.C.P. Article 3501, which provides:

“Art. 3501. Petition; affidavit; security
A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counselor or agent.”

LSA-C.C.P. Article 3501, supra, must be strictly and literally complied with because it concerns the extremely harsh remedy of a conservatory writ. Yorkwood Savings and Loan Association v. Thomas, 379 So.2d 798 (La.App. 4 Cir. 1980); Hancock Bank v. Alexander, 237 So.2d 669 (La. 1970).

A review of appellees’ petition discloses that the allegations set forth specific facts on which they base their request for the issuance of the writ, i. e., appellant has been apprehended in Monroe, Louisiana and faces extradition to the State of Texas on a charge of homicide. There is no merit to appellant’s contention.

Appellant next contends that appellees failed to prove the grounds alleged by them for the issuance of the writ as required by LSA-C.C.P. Article 3506, which provides:

“Art. 3506. Dissolution of writ; damages
The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.”

Under LSA-C.C.P. Article 3506, it readily appears that the filing by the de--fendant of a contradictory motion to dissolve the attachment obliges the party who has petitioned for and obtained the issuance of the attachment to proceed at the trial of the motion to dissolve. He must at that time discharge the burden of proof by establishing the facts alleged as the grounds for the issuance of the writ of attachment. Failure to discharge this burden would entitle the mover to an order of dissolution. Chas. A. Kaufman Company, Limited v. Gregory, 154 So.2d 392 (La.1963); Safety Finance Service, Inc. v. Nevett, 270 So.2d 260 (La.App. 4 Cir. 1972); Matthews v. Byford, 240 So.2d 765 (La.App. 2 Cir. 1970).

The trial court found that appellees had carried their burden of proof with respect to the grounds for issuance of a writ of attachment set forth in LSA-C.C.P. Article 3541(4) which provides:

“Art. 3541. Grounds for attachment
A writ of attachment may be obtained when the defendant:
(4) Has left the state permanently, or is about to do so before a judgment can be obtained and executed against him;
Specifically, the trial court found that: “It is evident that the Defendant is about to leave the State: he is awaiting extradition to Texas on murder charges.”

We conclude that simply finding that a defendant is about to leave the state is insufficient grounds for the issuance of the writ of attachment. Under LSA-C.C.P. Article 3541(4), there must be the additional finding that a defendant is about to leave the state permanently. See Safety Finance Service, Inc. v. Nevett, supra; Matthews v. Byford, supra.

Appellees have attached to their brief filed in this Court the record from a judicial proceeding which took place in another court. That proceeding is “State of Louisiana v. David Tyler, Docket # 39,808, 4th Judicial District Court, Parish of Oua-chita, Louisiana.” Apparently that proceeding was commenced to determine whether a sanity commission should be appointed to examine appellant. Appellees would have this Court take judicial notice of that record, which they claim proves that appellant is about to leave this State permanently.

There is no provision in Louisiana law authorizing a court of this State to take judicial notice of suit records in other courts. If appellees desired that we consider the record or judgment in another matter before another court, it was incumbent that such documents be introduced as evidence in the record in the trial court. Mattox v. American Indemnity Company, 259 So.2d 79 (La.App. 4 Cir. 1972); Jenks v. Gulla, 383 So.2d 1052 (La.App. 1 Cir. 1980).

There was no evidence presented by appellees to show that extradition proceedings had been commenced by the State of Texas in an attempt to extradite appellant. In fact, the evidence shows that no such proceedings have begun. Further, the evidence shows that appellant may be wanted in Texas for the commission of a homicide, but there is no evidence as to what degree, i. e., manslaughter, etc. Finally, there can be no argument with the fact that appellant must be presumed to be innocent of whatever crime he may be charged with.

We find that the evidence presented by appellees falls short of proving that appellant is about to leave this State permanently before a judgment can be obtained and executed against him. Therefore, the trial court erred in denying appellant’s motion to dissolve the attachment.

Because of our decision, there is no need for this Court to address the second issue raised by appellant concerning the introduction of a teletype message in evidence.

For the above and foregoing reasons, the judgment of the trial court is reversed. We find that appellant has suffered no damages for the wrongful issuance of the writ of attachment. We award appellant $750.00 as attorney’s fees for services rendered in connection with the dissolution of the writ. The writ of attachment is dissolved.

All costs of this appeal and at trial level are assessed against plaintiffs-appellees.

REVERSED.


author: CULPEPPER, Judge.

text:
    James DOMENGEAUX, et al., Plaintiffs-Appellants, v. Billy W. DANIELS, et al., Defendant, (Guaranty Bank & Trust Company of Alexandria, Louisiana), Intervenor-Appellee.
    No. 8308.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Voelker, Raglan, Brackin & Crigler, Charles R. Brackin, Lake Providence, for plaintiffs-appellants.
    Provosty, Sadler & deLauney, LeDoux R. Provosty, Jr. and David P. Spence, Gold, Little Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendants-appel-lees.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   CULPEPPER, Judge.

This appeal involves a dispute between the holder of a lessor’s lien and the owner of a chattel mortgage on certain farm equipment sold pursuant to a writ of fieri facias. The trial court ruled that the bank’s prior recorded chattel mortgage primed plaintiffs’ lessor’s lien. Plaintiffs appealed devolutively.

The sole issue is whether the descriptions contained in the bank’s chattel mortgage are sufficient.

The essential facts are undisputed. On September 24, 1976, the plaintiffs, James Domengeaux, Bob Wright, and Gilbert Dozier, leased to Daniels approximately 5800 acres of farm land in Grant and Rapides Parishes known as the Meade Plantation. When Daniels failed to pay the rent for the 1977 crop year, plaintiffs filed suit and, asserting a lessor’s privilege, had all the movable effects located on the leased premises seized under a writ of sequestration. Thereafter, on January 10, 1978, a petition of intervention was filed by Guaranty Bank & Trust Company of Alexandria, Louisiana claiming a superior lien under a prior recorded chattel mortgage on certian property seized by plaintiffs under the writ of sequestration. The evidence shows the bank’s chattel mortgage is dated February 24, 1975 and was filed in the Mortgage Records of Rapides Parish on February 26, 1975 and in Grant Parish on March 4, 1975. Attached to the chattel mortgage instrument is “Exhibit A”, which lists the following farming equipment subject to the mortgage:

“8 — 1066 International Tractors
2 — 1466 International Tractors
3 — 715 International Combines
11 — 500 International Disc Harrows
4 — 6 Row International Planters 6 — 6 Row Cultivators
2 — 325 Bu. Rayne Grain Carts
3 — 6 Row Harrows
3 — V-Ditchers
1 — 8000 Gallon Storage Tank & Pump
1 — 3000 Gallon Fuel Tank and Pump
1 — 500 Gallon Fuel Tank and Pump
1 — Cat Harrow
2 — D-8 Caterpillars
2 — 16,000 Lb. Cat Disc.
1 — Cat Disc
4 — Cat Rakes and Dirt Blades
5 — Allis-Chalmers Combines
1 — 15 Ft. Rome Disc
2 — 480 International Disc
3 — 1000 Gallon Fuel Trailers
3 — KBH 4-Wheel Frain Trailers
1 — 500 Gallon Butane Tank on Trailer
1 — 6 Row Harrow
2 — 6 Row Hippers
1 — John Deere 6 Row Cultivator
1 — 6 Row John Deere Planter
1 — 6 Row Allis Chalmers Planter
1 — Hebart Portable Welder
2 — Chisel Plows or root rakes
2 — 4 Row John Deere Cultivators
1 — Dolly (Single Axle)
1 — 15V2 Ft. Amco Disc.
2 — Barrentine Rollers
1 — Belten Spray Rig
1 — Case 5-Bottom Turning Plow
2 — John Deere Seeders
Parts and Shop Equipment”

Plaintiffs subsequently obtained a default judgment against Daniels for unpaid rent, and, by joint motion, plaintiffs and intervenor had all the sequestered items sold at public auction by the sheriff of Grant Parish. The property listed in Guaranty Bank’s chattel mortgage was segregated and sold separately.

By judgment dated October 29, 1980, the district court held that intervenor had a superior lien and was entitled to the proceeds from the separate sale of the following, which is the only equipment at issue:

“1 1974 International 1066 Tractor, SN V044114
1 1974 International 714 Combine, SN V007357
1 3000 Gallon Fuel Tank & Pump
1 Cat Harrow
1 Dolly (single axle)
1 Six Row Harrow (One)
1 Cat Disc.
1 Cat Dirt Blade
1 KBH 4-Wheel Grain Trailer
1 KBH 4-Wheel Grain Trailer
1 Trailer — used for hauling butane tank
1 Chisel Plow or Root Rake (yellow)”

At the time of the recordation of the original chattel mortgage, the list of equipment in Exhibit A, as shown above, did not include any serial numbers. On January 30, 1978, an Act of Correction was filed by Guaranty Bank inserting serial numbers for some of the equipment listed. In its written reasons, the district court held that the description of the property as such was adequate to preserve the chattel mortgage and was thus superior in rank to plaintiffs’ lessor’s lien.

On appeal, plaintiffs maintain that without full and proper identification of each piece of equipment, including serial numbers, intervenor’s chattel mortgage is ineffective as to them. They further contend that the act of correction filed by Guaranty Bank supplying the serial numbers was likewise without effect since it came after the seizure under writ of sequestration. We agree.

The rule is uniform that the lessor’s lien on chattels of the lessee attaches as soon as they are brought on the leased premises. Youree v. Limerick, 157 La. 39, 101 So. 864, 37 A.L.R. 394; LSA-C.C. Articles 2705, 2707 and 3218. However, a chattel mortgage properly executed and recorded will take precedence over a subsequently arising lessor’s lien. LSA-R.S. 9:5354.

The Chattel Mortgage Statute states, with respect to the description necessary for a specific item, that “a full description of the property to be mortgaged shall be set forth so that it may be identified and its location shall be stated.” LSA-R.S. 9:5352,A. Under the jurisprudential rule, which is more liberal than a strict construction of the statute, the description of property subject to a recorded chattel mortgage will be sufficient, if it enables third persons, aided by such reasonable inquiries which the instrument itself suggests, to identify the property. Union Bldg. Corporation v. Burmeister, 186 La. 1027, 173 So. 752 (1937); All State Credit Plan, Houma, Inc. v. Fournier, 175 So.2d 707 (La.App. 1st Cir. 1965). The determination of the sufficiency of description depends upon the peculiar circumstances surrounding each individual case. All State Credit Plan, Houma, Inc., supra.

In the instant case, we conclude the failure to include the serial numbers, where available, with the descriptions of the farm equipment rendered intervenor’s chattel mortgage ineffective as to plaintiffs. Although the instrument states that the equipment listed in Exhibit A shall be located on the property known as Meade Plantation, the items are described only by their common or manufacturer’s name. Had the equipment listed in Exhibit A been the only farming implements and machinery located on Meade Plantation, this general description may have been sufficient. However, the record reveals that the property seized under the writ of sequestration included many items of similar equipment not covered by intervenor’s chattel mortgage.

In Smith v. Bratsos, 202 La. 493, 12 So.2d 245 (1943), the Supreme Court held that the description of a refrigerator in a chattel mortgage was sufficient to place third parties on notice, although there was no serial number included. The evidence showed that the serial number had been inserted after the execution of the chattel mortgage. The court pointed out, however, that the refrigerator was the only one of its kind and make on the premises and had there been other chattels of a like nature, the description would have been insufficient. See also Young v. Squeeze Tools, Inc., 350 So.2d 967 (La.App. 2d Cir. 1977), where the drilling rig at issue was the only one on the premises.

The present case is clearly distinguishable. Here there were located on Meade Plantation other tractors, combines, grain carts, etc. of the same kind and make as those generally described in the bank’s chattel mortgage. The equipment having serial numbers should have been so identified. Without such positive identification, the chattel mortgage was not effective against the lessor’s lien.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that the lessor’s lien and privilege of the plaintiffs, James Domengeaux, Bob F. Wright and G. L. Dozier, be recognized as superior to the lien and privilege of the intervenor, Guaranty Bank & Trust Company of Alexandria, Louisiana, as to the chattels at issue. It is further ordered, adjudged and decreed that the sum of $5,139.49, being the proceeds of the sale of the chattels less intervenor’s pro rata share of the costs of the sale ($1,110.51), be paid by Guaranty Bank & Trust Company of Alexandria, Louisiana to James Domengeaux, Bob F. Wright and G. L. Dozier, together with any interest accumulated on said sum. All costs of these proceedings in the trial and appellate courts are assessed against the intervenor, Guaranty Bank & Trust Company of Alexandria, Louisiana.

REVERSED AND RENDERED.


author: LABORDE, Judge. CULPEPPER, Judge,

text:
    Geraldine LASTRAPES, Plaintiff-Appellee, v. CNA INSURANCE CO., Defendant-Appellant.
    No. 8313.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Lewis & Lewis, Gina B. Tuttle, Opelou-sas, for defendant-appellant.
    Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

In this workmen’s compensation suit, plaintiff, Geraldine Lastrapes, alleges she suffered a back injury while in the course and scope of her employment as Director of Nurses at St. Luke’s General Hospital. Alleging further that she is unable to perform all of her duties and that she has been working in substantial pain, plaintiff seeks permanent and total disability benefits from the hospital’s compensation insurer, American Casualty Company.

After a trial on the merits, the court found that plaintiff was injured within the course and scope of her employment and that she is performing her duties in substantial pain. On that basis, the judge found plaintiff to be permanently and totally disabled and fashioned an award accordingly. The judge also awarded penalties and attorney’s fees.

Defendant appeals and alleges as trial court errors the court’s finding that plaintiff proved her back injury occurred while in the course and scope of her employment and its finding that she now works in substantial pain. Defendant also contests the lower court’s finding that it acted arbitrarily and capriciously in refusing to pay plaintiff’s medicals. Plaintiff answers on the appeal requesting an increase in attorney’s fees.

Upon our review of the record, we find evidence sufficient to support the trial court’s finding of plaintiff’s permanent and total disability. However, in light of recent jurisprudence, we feel defendant is entitled to an opportunity to reduce the award of plaintiff’s benefits to partial disability by presenting evidence that some form of gainful occupation is regularly and continuously available to plaintiff within a reasonable proximity to her residence. For that purpose, we must remand.

In order to recover benefits under Louisiana’s Workmen’s Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. The first issue is whether plaintiff established a work-related injury.

Plaintiff is a thirty-seven year old registered nurse who is Director of Nurses at a small, rural hospital in Arnaudville, Louisiana. She testified that she injured her back on or about April 26, 1979, while carrying a projector from her office to the hospital’s dietary department. This occurred on a Thursday. Plaintiff states that throughout the day, she experienced pain in her lower back radiating into her right leg. Nevertheless, she continued to work that day and the rest of the week. It was not until the weekend that the pain became so intense that plaintiff complained about it to her husband and also related the incident to him. Due to the pain, plaintiff was able to work on Monday only of the following week. The pain continued and a doctor friend of plaintiff’s arranged for her to see Dr. Charles Olivier, an orthopedic surgeon. After several office visits, plaintiff was admitted into a Lafayette hospital. A myelo-gram was done by Dr. Laborde. It showed plaintiff as having smooth, round defects (bulging discs) along her back at L-2,3; L-3,4; and L-4,5. The pain continued and plaintiff was referred to Dr. Stephen Gold-ware, a neurosurgeon. Dr. Goldware concurred in Dr. Olivier’s findings.

Defendant, in brief, points to what it feels are several inconsistencies in plaintiff’s account of her injury as well as to additional facts which it feels tends to discredit plaintiff’s claim. Because we feel the record as a whole supports the trial court’s finding, we see no need to elaborate upon these alleged inconsistencies. We note only that the trial court, after hearing the evidence and viewing the witnesses, found that plaintiff established a work-related injury. We agree with the trial court that under the facts presented, plaintiff adequately discharged her burden. We will therefore not disturb this finding on appeal. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979).

Defendant next contends that plaintiff failed to prove that she is now in substantial pain or that she is disabled within the meaning of the compensation law.

Louisiana R.S. 23:1221 provides:

“Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

There has been a recent surge of jurisprudence interpreting this statute and, more importantly for our purposes, relating an employee’s claim of working in substantial pain to the workmen’s compensation scheme. In the most recent case of Lattin v. Hica Corporation, 395 So.2d 690 (La.1981), the Supreme Court stated:

“A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). Substantial pain cases may also be analyzed within the framework of the odd lot doctrine which was adopted by this court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). See Wilson v. Ebasco Services, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Dusang v. Henry C. Beck Builders, Inc., supra.
Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combined to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.
The odd lot doctrine is also applicable to substantial pain cases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.”

In the instant case, plaintiff adequately established that she suffers from substantial pain while performing her duties at the hospital. She concedes that while there are days when she does not hurt, most of the time she is in pain and occasionally she has to miss work on that account. She shows that her job as Director of Nurses requires a lot of sitting to fulfill her duties of arranging schedules, attending meetings, and so on and that prolonged sitting aggravates the pain. She also shows that because the hospital is a small, rural one, with limited registered nurses, she is often times summoned to floor duty and is required to perform the tasks of an R.N. She claims that the extra walking, bending, and standing motions also aggravate her condition.

The trial court expressly found that plaintiff was working in substantial pain. Upon our review of the record, the preponderance of the testimony, medical and lay, and the credibility of plaintiff are sufficient to support this determination.

In light of the above principles, we must also review the record to determine whether plaintiff had made a prima facie showing that her pain appreciably limits the types of work available to her and greatly diminishes her ability to compete in the labor market.

The record reveals that plaintiff graduated from nursing school and is a registered nurse. Thus, we are unable to say that plaintiff is uneducated. Yet, her education is a specialized one as are her skills. As seen from the testimony elicited, her back injury prevents or hampers her from performing the ordinary services required of her. For example, the evidence reveals that plaintiff attempts to find other nurses to do particular things or tasks for her at the hospital that she once did prior to her back injury.

In addition, the record shows that plaintiff’s husband, James Lastrapes, is the Administrator of the hospital. He is also Secretary of its Board of Directors. These factors suggest to this court that the hospital may be attempting to accommodate plaintiff by retaining her.

Based on the above, we feel plaintiff has proved that her substantial pain places her are a disadvantage in the competitive labor market. Thus, we conclude that she has made out a prima facie showing for classification in the odd lot category. This satisfies the burden of proving she is entitled to benefits for permanent and total disability. The defendant must now show that some form of gainful employment is regularly and continuously available to her within reasonable proximity to her residence.

Our ruling requiring remand pretermits the need for a discussion of penalties and attorney’s fees.

For the above reasons, the judgment of the trial court is set aside and the case remanded to the district court for further proceedings consistent with this opinion. Costs of this appeal are assessed against defendant.

SET ASIDE; AND REMANDED.

FORET, J., concurs.

CULPEPPER, J., concurs in the reversed and assigns reasons.

CULPEPPER, Judge,

concurring in part.

I concur in the majority holding that the trial judge was not clearly wrong in his finding of fact that plaintiff suffered a job-related accident. However, I think the defendant had just cause to question the occurrence of the accident, and that therefore defendant was not arbitrary or capricious in refusing to pay benefits.

The following evidence shows there was a serious question as to the accident. Plaintiff contends that on Thursday, April 26, 1979 she injured her back while carrying a movie projector which weighed about 30 pounds. The first thing which makes the accident questionable is that she admittedly continued to work on Thursday, April 26 and Friday, April 27. She was off on Saturday, April 28. The first time she told anybody about the accident was on Sunday, April 29. She says that on Sunday her back pain became much worse at home and she told her husband, who is the hospital administrator. Nevertheless, she worked on Monday, April 30, Plaintiff testified she talked to a Dr. Morrow at the hospital briefly, and he advised her to see Dr. Charles Olivier, an orthopedist in Lafayette. She first saw Olivier on May 9, 1979. In giving Dr. Olivier her history, she stated she had episodes of back pain since high school, and that her back had started hurting badly about six weeks before. Of course, six weeks before May 9 would have put the date of injury before the alleged accident on April 26. Furthermore, in her history given to Dr. Olivier, she denied that she had suffered an injury. This may have been a misunderstanding by Dr. Olivier of plaintiff’s statements to him, but, nevertheless, it raises a question as to whether there had been an accident.

Mr. Neal Durio, the insurance agent who handles the hospital’s coverage, testified he thought there would be a question about an accident, because plaintiff could not “pinpoint” a specific time when the injury occurred. Peggy Robin, one of Durio’s employees, stated she obtained from Mr. Las-trapes the information to fill out the employer’s first report of injury, which was dated May 15, 1979, about 19 days after the alleged accident on April 26.

Mitzi Melancon, the insurance adjuster for the defendant, testified they initially paid about $305 of medical expense, but then she recommended no further payment be made because of the serious questions regarding the accident. The questions as to the accident stated by Ms. Melancon are: (1) Plaintiff admittedly had pre-existing back disease since high school. (2) Plaintiff could not point to any exact time when the accident occurred. (3) There were no other witnesses to the accident. (4) The date of the accident given in the employer’s first report, i. e., April 26, conflicted with the history given to Dr. Olivier that plaintiff’s back started hurting about six weeks before May 9. (5) In her history to Dr. Olivier, plaintiff said she had not suffered an injury. I would hold there are sufficient questions about the accident that penalties and attorney’s fees should be denied.

Furthermore, I can agree with the majority that the accident, i. e., the aggravation of plaintiff’s pre-existing back disease, caused her to be totally disabled for a certain period of time. However, it is my view the evidence shows plaintiff is no longer totally disabled. Reviewing briefly the expert medical testimony, Dr. Olivier saw plaintiff from May 9, 1979 until June 1, 1979. Based on the myelogram which he ordered and other examinations, he diagnosed herniated discs at L2-3, 3-4 and 4-5, the most pronounced being at 4-5. It was his opinion that plaintiff had aggravated this condition causing pressure on the right leg sciatic nerve. Since plaintiff was still complaining of pain the last time Dr. Olivier saw her, June 1, 1979, he referred her to Dr. Stephen Goldware, a neurosurgeon in Lafayette.

Goldware first saw plaintiff on August 7, 1979. He described her as being a healthy, white female, 5 feet 8 inches tall, weighing 135 pounds and at that time being 35 years of age. His August 7 examination revealed nerve root pressure from a herniated or ruptured disc at L4-5. He saw her again on November 20, 1979, and there was no change. He talked to plaintiff and her husband about treatment and even discussed the possibility of future disc surgery. However, they decided to use conservative treatment, i. e., exercise and medication for pain.

Dr. Goldware next saw plaintiff on February 15, 1980, on which date he found her to be completely asymptomatic. He explained that either the disc material or the nerve had probably moved so that there was no longer any pressure on the nerve. Dr. Goldware discharged her as being able to return to her duties as a nurse, provided she did no heavy lifting and tried to avoid remaining in the same position for prolonged periods of time. He explained to plaintiff that the chances were about 20% that she would reinjure her back within five years, and that if she did have a reinjury and the pain became so great that she could not stand it, they could do disc surgery, which is usually successful.

The time sheets filed in evidence are very confusing as to the exact number of days plaintiff had to use her sick leave because of the pain in her back. They show that during May and early June of 1979 she used about 30 days of her sick leave. But after the myelogram was performed for Dr. Olivier she went back to work on Monday, June 11, 1979 and has continued to work since that time up to the date of trial in July of 1980. She was working when she saw Dr. Goldware. Although she used all of her sick leave and in addition used some special leave which the Board of Administrators gave her, she has not lost any wages. At the time of trial, she had worked for over a year at the same job for the same wages as before the accident.

As the majority states, plaintiff testified she still has back and leg pain at work on most days but not every day. The activities which cause her pain are sitting in one position for long periods of time, which she has to do in keeping records, or prolonged walking or pending. Apparently, she does not have to do any heavy lifting. The record shows that in addition to plaintiff, the hospital employs registered nurses for each of the three shifts, and also practical nurses, aides and orderlies who do the lifting.

Plaintiff has not seen a doctor about her back since Dr. Goldware discharged her in February of 1980.

It is my view that even assuming the trial judge was not clearly wrong in his finding of fact that plaintiff works in substantial pain, there is sufficient evidence in the record to show that she does not fall within the odd lot category as defined in the Dusang and Lattin cases cited in the majority opinion. The strongest evidence that gainful employment is regularly and continuously available to plaintiff is the fact that she has worked for over a year as the director of nurses at the hospital, the same job she had at the time of the accident. In addition, plaintiff’s husband, the administrator of the hospital, testified that there is a shortage of nurses in the Ar-neaudville area, and that the hospital has difficulty employing sufficient registered nurses. I see no need to remand this ease to the district court for additional evidence on the question of whether plaintiff is an odd lot employee. Clearly, she is not.

Summarizing, I can agree with the majority that there was an accident causing total disability for a short period of time during which plaintiff had to use her sick leave, and that she is entitled to weekly benefits for the period she used her sick leave. However, I would find plaintiff is not entitled to benefits after she returned to work on June 11, 1979. And, in view of the serious questions as to the accident, I would find plaintiff is not entitled to penalties or attorney’s fees.

      . Although originally sued as NCA, defendant thereafter is referred to and refers to itself as American Casualty Company.

      . As will be explained more fully later in this opinion, plaintiffs husband, James Lastrapes, is the Administrator of the hospital where plaintiff is employed.


author: GUIDRY, Judge.

text:
    TOWN OF KROTZ SPRINGS, Plaintiff-Appellant, v. Johnice H. WEINSTEIN, et al., Defendants-Appellees.
    No. 8320.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Lewis & Lewis, Gina Tuttle, Opelousas, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff, Laurence B. Sandoz, Jr., Lasario & Weinstein, John H. Weinstein, Opelousas, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

The plaintiff municipality instituted this expropriation proceeding against defendants in order to acquire full ownership, less all minerals, of a 16.38 acre tract for the purpose of constructing a sewerage oxidation pond and sewerage treatment facility. The trial court rendered judgment in favor of plaintiff awarding it ownership of the aforesaid property subject to payment by the municipality to defendants of the sum of $212,661.00. Plaintiff has appealed urging that the amount awarded defendants is excessive. Appellant also urges that the trial court erred in awarding allegedly excessive expert witness fees.

The 16.38 acres expropriated to the plaintiff is taken from the center of a 21.24 acre tract owned by defendants. The 21 acre tract of land referred to is situated within the corporate limits of Krotz Springs immediately north of U.S. Highway 190. The area of Krotz Springs north of U.S. Highway 190 is completely encircled by a ring levee which serves to protect that portion of the community from flood waters from the Atchafalaya River and/or the Atchafalaya Floodway. The property, prior to the taking, had a frontage of 1400' along the west side of La. Highway 105 and is bisected by two pipeline rights of way, one line traversing the north side and the other the south side of the property. The property also fronts about 1100' along its south boundary on the La. Highway 105 approach to U.S. 190, however, the approach road is a controlled access facility with no access available from the 21 acre tract. The following sketch depicts the 21 acre tract, the pipeline rights of way, the portion expropriated, and the segregated remainders:

The trial court awarded defendants the total sum of $212,661.00, i. e., $176,904.00 as the value of the land taken and $35,757.00 as severance damages to the segregated remainders. Plaintiff contends that the award is excessive.

Three experts testified, Messrs. Allen Angers and John W. Wilson for defendants and Mr. Gene Cope for plaintiff. In arriving at a value for the property all of the experts employed the market data approach (based on comparable sales in the area).

Mr. Cope testified that the highest and best use of the property was light industrial or commercial and that considering such potential the property had a market value of $5000.00 per acre. He ultimately concluded that the property to be taken in fee had a value of $81,900.00 (16.38 X $5000.00) and the remainder would suffer severance damages of approximately 33V3% or $8000.00. On the other hand, Messrs. Angers and Wilson testified that the highest and best use of the property was for residential subdivision acreage. Mr. Angers, based upon his proposed subdivision layout and analysis, fixed the value of the property taken at $176,904.00 (16.38 X $10,800.00), with severance damages to the remaining 5.04 acres of $35,757.00 or a total of $212,-661.00. Mr. Wilson concluded that the fair market value of the property taken was $175,170.00 with severance damages to the remainder of $27,298.00 for a total of $202,-468.00. The trial court, in written reasons for judgment, concluded that the highest and best use of the property was for potential subdivision development and accepted the opinion of Mr. Angers as to the value of the property taken and the severance damages suffered by the remainder. Our review of the record reveals no error or abuse of discretion in the trial court’s finding. As we stated in State, Department of Transportation and Development v. Van Willet, 388 So.2d 1344 (La.App. 3rd Cir. 1980), writs refused, La., 390 So.2d 1337:

“The determination of the value of land for compensation in expropriation eases, as in the instant suit, is necessarily dependent upon evidence presented in the form of opinions from expert witnesses. It is the particular province of the trial judge to weigh the credibility and expertise of such witnesses in his determination of valuation. Our jurisprudence mandates that an appellate court should not alter the trial court’s finding in such cases absent abuse of discretion or manifest error.”

Mr. Angers’ appraisal report which by stipulation was admitted in evidence, together with his testimony indicates that he made a thorough and comprehensive study of all essential factors in reaching a conclusion as to the highest and best use of the property in question and its value based upon such potential use. His report and his testimony clearly demonstrated that the subject land could reasonably have been put to immediate use as residential subdivision property and that being put to such use the owners would derive the highest economic benefit from such land. Further, Mr. Angers’ analysis, and his conclusions in regard to the severance damages which defendants’ remaining property will suffer, as a result of the expropriation, appears well grounded in reason and sincerity. In sum, we discern no error or abuse of discretion in the trial court’s acceptance of Mr. Angers’ analysis in toto and the rendition of judgment based thereon. See Parish of East Baton Rouge v. Thomas, 346 So.2d 364, 367 (La.App. 1st Cir. 1977) and cases therein cited.

Appellant’s remaining assignment of error concerns an allegedly excessive expert witness fee awarded Mr. Angers and taxed as costs to appellant. The trial court awarded Mr. Angers the sum of $5250.00, being the exact amount which Mr. Angers billed the defendants for his services. In contrast, the trial court awarded appellees’ other expert witness, Mr. John W. Wilson, the sum of $750.00. Although we acknowledge that Mr. Angers’ appraisal report and his research in connection therewith was extremely comprehensive, we conclude that the fee awarded by the court is excessive and should be reduced.

Expert witnesses are entitled only to reasonable compensation for their appearance in court and for preparatory work done, and the fees allowed should be in line with those allowed in similar cases. LSA-R.S. 13:3666; State, Department of Transportation & Development v. Van Wil-let, supra. The amount agreed upon between an expert witness and the party calling him is not a criterion as to the amount to be taxed as costs. Daigle v. Hardware Dealers Mutual Fire Insurance Co., 165 So.2d 643 (La.App. 1st Cir. 1964); State, Department of Highways v. United Pentecostal Church of Hodge, Louisiana, 313 So.2d 886 (La.App. 2nd Cir. 1975), writ refused.

According to the record Mr. Angers devoted approximately 13 full days in preparation for trial and one day in court. Although we have no reason to doubt the accuracy of this estimate of time spent by Mr. Angers on this case we do not believe that it is reasonable to compel plaintiff to pay for that amount of time and at the price agreed upon between Mr. Angers and defendants. Although the defendant landowner is entitled to be compensated for the expenses which he reasonably incurs in obtaining expert testimony, he is not entitled to compel plaintiff to pay an unreasonable amount. Under the circumstances we conclude that an award of $3000.00 as an expert witness fee to Mr. Angers is just and fair to both plaintiff and defendants. The judgment of the trial court will be amended accordingly.

For the reasons assigned the judgment of the trial court will be amended so as to reserve to defendants all minerals in the expropriated tract and so as to reduce the fee awarded defendants’ expert witness, Allen Angers, to the sum of $3000.00. In other respects the judgment appealed from is affirmed. Accordingly, the judgment of the trial court is amended and recast as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Town of Krotz Springs, and against defendants, JOHNICE H. WEIN-STEIN, MORRIS H. WEINSTEIN, JOHN H. WEINSTEIN AND HARVEY H. POS-NER, in their capacities as Trustees of the Nathalie Haas Hirsch Trust for Johnice and her children; EMILY H. HART and N. LEON HART in their capacities as co-trustees of Nathalie Haas Hirsch Trust for Emily and her children; NATHALIE H. HIRSCH, in her capacity as Trustee of the Johnice Hirsh Weinstein Baker Property/Trust and N. Leon Hart in his capacity as Trustee of the Emily Hirsch Hart Property/Trust, and accordingly fee title to the hereinafter described property is hereby expropriated and adjudged to the Town of Krotz Springs, viz:

‘A certain tract or parcel of land, situated in Section Six (6), Township Six South (T-6-S), Range Seven East (R-7-E), St Landry Parish, Louisiana, containing sixteen and 38Aooths (16.38) acres, and being more particularly shown on the attached plat of survey by Morgan J. Goudeau & Associates, dated February 5, 1980, and being bounded, as follows: North by the Texaco Pipeline Company Right of Way, South by the Cayuse Pipeline Right of Way, East by Louisiana Highway 105, and West by the East line of the abandoned Highway 105.’
LESS AND EXCEPT, however and reserving to the above named defendants, in the proportions which they presently own, all the oil, gas and other minerals in, on and under the land above described.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Town of Krotz Springs, pay to the above named defendants the sum of TWO HUNDRED TWELVE THOUSAND SIX HUNDRED SIXTY-ONE AND NO/100 ($212,661.00) DOLLARS, representing the value of the expropriated property, together with legal interest thereon from the date this judgment becomes final.

IT IS FURTHER ORDERED that the plaintiff pay the following fees of the expert witnesses, to-wit:

1. Allen J. Angers_$3000.00

2. John W. Wilson.$ 750.00

3. Gene W. Cope_To be paid by plaintiff

IT IS FINALLY ORDERED, ADJUDGED AND DECREED that plaintiff pay all costs of these proceedings.”

Plaintiff-appellant is cast for all costs of this appeal.

AFFIRMED AS AMENDED AND RECAST.

      . Although at trial the parties stipulated that the expropriation was not to include the minerals underlying the 16.38 acre tract, the trial court judgment, apparently through inadvertence, does not reserve to the landowner defendants the minerals underlying the expropriated property. Under the authority granted by LSA-C.C.P. Article 2164 we will amend the lower court’s judgment to conform with the stipulation of the parties.

      . Trial of the instant case took one day.

      . The trial court judgment awarded legal interest on the sum awarded defendants from the time this suit was instituted. This was error. Under general expropriation procedure interest is computed from the date of judgment until payment. State v. Miller, 250 La. 668, 198 So.2d 397 (1967).


text:
    Russo CAHANIN, et al., Plaintiffs-Appellees, v. Amatile LACOMBE, et al., Defendants-Appellants.
    No. 8329.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.
    Rehearing Denied Aug. 13, 1981.

      Petitjean & Petitjean, Martin Petitjean, II, Rayne, for defendants-appellants.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiffs-ap-pellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

This matter is presently before us on a Petition for Partition either in kind or by licitation. The matter has been before us twice previously. We first dealt with this controversy in Texas Eastern Transmission Corporation v. Cahanin, 256 So.2d 147 (La. App. 3rd Cir. 1971), writ refused, 260 La. 1117, 258 So.2d 374 (La.1972). The second time the case came before us was in 343 So.2d 415 (La.App. 3rd Cir. 1977). In that last opinion we held that a judgment of the district court dated February 21, 1975, had become final because the appellants, the “Laeombe Group” did not timely appeal.

In the present litigation the district court ordered that a survey of the property be conducted by Frank Lyman, a registered land surveyor. The trial court indicated it would determine whether the property could be partitioned in kind after receipt of the survey. In its judgment the trial court construed the judgment of February 21, 1975. It is this latter action which defendants appeal from.

In their brief the appellants, the Lacombe Group, complain of certain errors which they contend pose issues as follows:

1. Whether a judgment should be amended or interpreted where it is impossible to enforce it as written.

2. Whether the District Court may, “at this late date,” now modify a judgment rendered February 21, 1975, in order to divest the Lacombe Group of ownership of any portion of the 14.43 acre tract which it has been recognized as owner of throughout the many trials and appeals relating thereto over the last 16 years.

3. Whether the judgment rendered February 21, 1975, should be interpreted in accordance with the rules for construction of judgments recognized by Louisiana courts.

Following the trial of July 10, 1978, the trial court rendered written reasons for judgment on June 1, 1979. After briefly reviewing the history of the litigation, the trial court concluded as follows:

“This court concludes that the decision of the District Court as affirmed by the Court of Appeal on the last hearing is final. This court, therefore, must conclude that the Cahanins are entitled to the ownership of 3.14 [sic] acres of land in the tract in question and this is so even if the land consists of only 14.43 acres rather than the 17.6 acres mentioned.
“The court will, therefore, order that a survey be made of the tract in question to determine whether the property can be divided in kind and if not, the property must be sold with the Cahanins receiving 3.14 [sic] acres and the Lacombes the balance, whatever this may be.
“Costs of court to await the final determination of this matter.
“Appropriate judgment will be signed upon presentation.
“Reasons rendered at Lafayette, Louisiana this 1st day of June, 1979.
s/ Douglas J. Nehrbass
DISTRICT JUDGE”

The judgment of the trial court appealed from, signed on October 25, 1979, is couched in substantially the same language as that contained in the reasons for judgment.

I.

The first issue presented by the appellants is whether a judgment should be amended or interpreted where it is impossible to enforce the judgment as written.

The particular judgment in question described as final is set forth in part in our opinion in 343 So.2d 415, page 416. We now set forth the judgment in full inasmuch as it is the focus of the present appeal. The judgment in question (Tr. 19, record in our appeal number 5802) reads as follows:

“JUDGMENT
“This matter came to be heard on July 1st, after being regularly fixed for trial and after service of the notice of trial of all parties not represented by counsel. Present Homer Ed Barousse, Jr., attorney for ‘Cahanan [sic] Group’
“The Court considering the law and the evidence and same being in favor of the ‘Cahanan [sic] Group’ and for the reasons for Judgment dated January 28, 1975, and for the oral reasons this day assigned;
“IT IS ORDERED, ADJUDGED AND DECREED that there be Judgment herein in favor of the ‘Lacombe Group’ of the following described property:
That certain tract of land containing fourteen and ‘‘Vioo (14.43) acres, more or less, lying in Section Fifty-four (54), Township Eight (8) South, Range Two (2) East and in Section Forty-four (44), Township Nine (9) South, Range Two (2) East, Acadia Parish, Louisiana, and bounded, now or formerly, as follows: On the Northeast by Marcial Broussard and Estate of Aurelien Cormier; on the Southeast by Bayou Wikoff and Whitney Brasseaux; on the Southwest by Whitney Brasseaux and on the Northwest by Whitney Brasseaux and Roy Andrus.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Judgment of this Court specifically limits the ownership of the ‘Lacombe Group’ to the 14.43 acre tract of land and the ‘Ca-hanan [sic] Group’ is recognized as owners of the 3.17 acres described as lying within the above described tracts of land.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of Court of Acadia Parish, Louisiana, pay all funds deposited in the Registry of this Court to the parties as per this Judgment, and;
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the members of the ‘Lacombe Group’ return to the ‘Cahanan [sic] Group’ all funds withdrawn by them from the Registry of the Court attributable to the 3.17 acre tract of land;
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Texas Eastern Transmission Corporation pay all amounts due attributable to oil, gas and minerals from the 3.17 acre tract of land to the parties as stipulated in this Judgment;
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs are to be paid from the funds deposited in the Registry of the Court.
“THUS RENDERED, READ ALOUD AND SIGNED in Chambers at Crowley, Louisiana, this 21st day of Feb. . 1975.
s/Charles T. Everett”

In our opinion reported at 343 So.2d 415, we held that the judgment of February 21, 1975, rendered by District Judge Charles T. Everett, could not be modified or amended because there had been no timely appeal from the judgment. In the present partition suit a different trial judge has issued a judgment which either modifies or interprets the judgment rendered by Judge Everett on February 21, 1975.

The question before us is whether the judgment may be modified or interpreted, and if so, whether the judgment appealed from is correct.

The first opinion of this Court of Appeal in 256 So.2d 147 (as to which a writ was refused) clearly affirmed the title of the Lacombe Group to 14.43 acres. In that decision we were of the opinion that the concursus proceeding was concerned with 17.6 acres because the plaintiff in the con-cursus, Texas Eastern Transmission Corporation, designated the tract as containing that much acreage. In the first paragraph of the dispositive portion of the judgment of February 21, 1975, the trial court again confirmed the Lacombes in the ownership of 14.43 acres. The second paragraph of the trial court’s judgment of February 21, 1975, introduces an element of confusion. The second paragraph states “the ‘Cahanan [sic] Group’ is recognized as owners of the 3.17 acres described as lying within the above described tracts of land.” (Emphasis supplied.) Unfortunately, the judgment described one tract only, namely, the 14.43 acre tract. However, through reference to the trial court’s reasons for judgment at transcript pages 16 and 17 in the record on appeal in 343 So.2d 415 (our number 5802), it is clear that the trial court thought that it was dealing with a tract which contained seventeen or more acres.

Those reasons for judgment read as follows:

“REASONS FOR JUDGMENT
“On February 22, 1971, judgment was rendered in this suit recognizing Amatile Lacombe and others as the owners of a 17.6 acre tract which was described in particularity in the formal judgment signed March 4,1971. Subsequently, this case was appealed to the Court of Appeal, Third Circuit wherein the judgment was ‘AFFIRMED IN PART, REVERSED IN PART AND REMANDED.’ The Court stated:
‘The judgment must therefore be amended so as to decrease the land awarded to the Lacombe Group to 14.43 acres and decrease the royalties to which they are entitled to those payable on 14.43 acres.’
“Following this mandate a trial was held wherein the evidence adduced established that Claude Cahanan, [sic] together with his brothers and sisters, did not recall executing an instrument wherein they transferred certain property to Am-atile Lacombe but do recall that they permitted her to live on 14 acres of land until her small child was old enough to care for himself.
“I am convinced that the 3.17 acres which was erroneously included within the 17 [sic] acre tract of land was never intended to be conveyed to the Amatile Lacombe Group but is properly owned by the Claude Cahanan [sic] Group, as well as the oil, gas and mineral royalties that may be produced from that area.
“It is the judgment of this court now that the Lacombe Group is entitled to the following described property:
That certain tract of land containing Fourteen and ‘‘Vioo (14.43) acres, more or less, lying in Section Fifty-four (54), Township Eight (8) South, Range Two (2) East, and in Section Fourty-four (44), Township Nine (9) South, Range Two (2) East, Acadia Parish, Louisiana, and bounded, now or formerly, as follows, On the Northeast by Marcial Broussard and Estate of Aurelien Cor-mier; on the Southeast by Bayou Wi-koff and Whitney Brasseaux; on the Southwest by Whitney Brasseaux; and on the Northwest by Whitney Bras-seaux and Roy Andrus.
“Costs to be paid from the funds deposited in the registry of the Court.
“Formal judgment consistent with these views will be signed upon presentation.
“Rendered at Crowley, Louisiana, this 28th day of January, 1975.
s/ Charles T. Everett
DISTRICT JUDGE”

Inasmuch as the Lacombe Group has been twice confirmed in the ownership of 14.43 acres we hardly see how we can now approve an interpretation of the trial court judgment of February 21, 1975, a final judgment, which could possibly reduce the ownership of the Lacombe Group below 14.-43 acres. In 343 So.2d 415 we held that the trial court was correct in refusing to amend the judgment of February 21, 1975, on the application through rule by the Lacombe Group for the reason that the judgment had become final and definitive. Nevertheless, we made the following observation:

“We acknowledge the fact that since the inception of these proceedings there has yet to be a clear demonstration of exactly where the questionable 3.17 acres lie or even, if in fact, that property exists at all. We are aware that a high probability exists that the 3.17 acres are not contained within the 14.43 acre tract as found by the trial judge.”

By reference to the trial court’s reasons for judgment, as demonstrated above, the present panel of this court does not believe the trial judge actually held that the 3.17 acres was contained in the 14.43 acre tract. We think that the judgment presented to the trial court for signature was drafted with an ambiguity inherent in its language. We do think that the second sentence just above quoted is correct, and it may well be that the 3.17 acre tract does not exist at all.

The reference to 17.6 acres was introduced into the controversy between the two groups by the Texas Gas Transmission Corporation when it filed its concursus proceeding. It was then used by the trial court. It should be noted that the description in question states that the 17.6 acres of land is situated in two sections of land rather than one as called for in the act of sale by which the Lacombe Group acquired their title to 14.43 acres. See the descriptions in question, 256 So.2d 147 at page 149.

We previously held that the February 21, 1975, trial court judgment could not be modified or amended. On the other hand, we are under the necessity of interpreting the judgment which we consider ambiguous and of ruling on the correctness of the latest trial court judgment which is now before us on appeal. The previous judgments were rendered by the Honorable Charles T. Everett, District Judge who subsequently retired. The judgment presently appealed from was rendered by the Honorable Douglas J. Nehrbass, District Judge.

II.

The judgment of Judge Nehrbass recognized the Cahanins “as owners of 3.14 [sic] acres of land regardless of whether the land consists of 14.43 acres or 17.6 acres.” In our view the opposite approach should be taken. Evidence in the record shows the Lacombe Group to have occupied 14.43 acres in Section Forty-four (44), Township Nine (9) South, Range Two (2), East Louisiana Meridian in Acadia Parish, Louisiana. Survey designated L-100, transcript page 44, record in appeal number 5802 filed October 22, 1976. That is what their title called for. It is our interpretation of the trial court judgment of February 21, 1975, and it is our holding here, that the 3.17 acres of which the Cahanins were recognized as owners are situated outside the 14.43 acres of which the Lacombes have been recognized as owners. It is our interpretation that the meaning of the word “tracts” used in the plural in the clause reading “the Cahanan [sic] Group is recognized as owners of 3.17 acres described as lying within the above described tracts of land” has reference to two tracts, one of 14.43 acres and one of 3.17 acres which together were conceived by Judge Everett to form a tract of 17.6 acres.

In view of the tenuous support for the actual existence of the 3.17 acres, it is our view that the Cahanin Group is entitled in this petition to 3.17 acres only if it can be found by survey to exist over and above 14.43 acres which we hold shall be allotted to the Lacombe Group by way of priority. Inasmuch as it is not clear what the original reference to 17.6 acres is based upon, and the fact that the title of the Lacombes called for 14.43 acres, we are of the opinion that it was Judge Everett’s intention in his judgment of February 21, 1975, to give priority to the Lacombe Group.

III.

In summary, we conclude that the judgment of February 21, 1975, is ambiguous and unclear and should be interpreted. We conclude that the trial judge’s interpretation embodied in the judgment on appeal here is not the proper interpretation and should be reversed.

IV.

For the foregoing reasons we reverse the judgment of the trial court in this matter dated October 25, 1979.

IT IS NOW ORDERED, ADJUDGED, AND DECREED that the trial court judgment of the Fifteenth Judicial District Court in civil suit entitled Texas Eastern Transmission Corporation v. Amatile Lacombe, et al, bearing number 26,113 on the docket of that court, which was declared final in our judgment in 343 So.2d 415, shall be construed so as to entitle defendants-appellants herein to 14.43 acres by way of priority in any partition ultimately effected herein.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the judgment shall be construed to entitle defendants-appellants to a maximum of 14.43 acres of any acreage disclosed by the survey ordered herein; and that should the survey disclose the tract in question to contain less than 14.43, the defendants-appellants shall be entitled to the whole thereof.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the judgment shall be construed to entitle plaintiffs-appellees only such acreage as may exceed 14.43 acres.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that should it become necessary to order a partition by licitation that the proportionate shares of any proceeds be allotted in conformity with the views expressed in this opinion.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the judgment of the trial court of October 25, 1979, be affirmed in all other respects, particularly with respect to the appointment of a surveyor to conduct a survey of the property in question and the order of the trial court that further proceedings herein await the return of the survey to the trial court.

The costs of this appeal shall be assessed to plaintiffs-appellees.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Reasons for judgment form no part of the judgment and are not ordinarily considered. There is authority, however, for considering the entire record including reasons for judgment, the pleadings, the subject matter of the suit and other matters of record in the event of doubt or ambiguity in order to arrive at an interpretation of the judgment. American Bank & Trust Co. v. Blue Bird Restaurant and Lounge, 294 So.2d 302 (La.App. 1st Cir. 1974), writ refused, 296 So.2d 840 (La.1974); Kilcrease, Ehlinger and Faulkner, Inc., v. McLeod, 357 So.2d 67 (La. App. 4th Cir. 1978); and Succession of Delesdernier, 184 So.2d 37 (La.App. 4th Cir. 1966).

      . See footnote 1.