author: JOANOS, Judge.

text:
    McELWAIN ASSOCIATES, INC., a Florida corporation, Appellant, v. Arthur E. CULBRETH, et ux., et al., and the United States of America, Appellees.
    No. AG-490.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.

      C. Valentine Bates of Bates & Costello, Gainesville, for appellant.
    Anderson E. Hatfield, Gainesville, for ap-pellees.
   JOANOS, Judge.

In this appeal, following a final judgment of foreclosure on the home of the appellees, appellant, McElwain Associates, Inc., challenges the manner in which certain payments made by the Culbreths were applied by the trial court to the debts owed McEl-wain Associates by the Culbreths. We approve of the reasoning employed by the trial court and affirm the final judgment of foreclosure.

The Culbreths became indebted to McEl-wain Associates on three obligations: an equipment note, dated January 21, 1975, with principal in the amount of $9,377.00; an unsecured personal note, dated April 10, 1975, in the amount of $4,400.00; and a note on a non-purchase money mortgage on the Culbreth’s homestead property, dated April 10, 1975, in the amount of $10,000.00. The mortgage note provided that interest payments only, at 6% per annum would be payable monthly beginning May 10, 1975 and continuing for twenty-four months. Beginning May 10, 1977, the payment would be $461.45 per month for twenty-four months, to be credited first to interest at 10% per annum, and then to principal. The unsecured personal note and the mortgage on the homestead property are of significance in this appeal.

McElwain Associates was in the hearing and air conditioning supply business until January, 1980. Mr. Culbreth obtained some of his equipment from McElwain Associates. In order for the Culbreths to pay off their debts, the parties worked out a credit system through which McElwain would retain a percentage of funds due Mr. Culbreth on his business contracts as “override” payments.

From April 16, 1977, to November 18, 1979, Culbreth made $11,113.17 in override payments. In November 1977, Mr. Cul-breth obtained a discharge in bankruptcy and in February 1978, Mrs. Culbreth obtained a discharge in bankruptcy. In November 1978, McElwain filed a complaint to foreclose the mortgage on the homestead property, alleging the Culbreths had defaulted by failing to make the payment due May 10, 1975 and all subsequent payments. The Culbreths answered asserting as an affirmative defense that after the note was executed McElwain made adjustments in the terms with respect to the payment of principal and interest, specifically, that McElwain had been receiving a 10% override on heating and air conditioning equipment ordered by Culbreth from McElwain. It was alleged further that Culbreth continued to pay the overrides and would continue to do so in the future according to the agreement between McElwain and the Cul-breths.

At trial Mr. McElwain testified that on July 26, 1979, he returned the unsecured personal note to Mr. Culbreth indicating it was paid in full. McElwain had not furnished written accountings to the Culbreths indicating how the override payments were being applied to the various debts. He said Mr. Culbreth had not indicated to which debt he wished to apply the payments and that, although the unsecured personal note had been discharged in bankruptcy, Mr. Culbreth had said he wanted to pay the debt anyway. Apparently on that basis McElwain continued to apply the override payments to the unsecured personal note after the discharge in bankruptcy, until it was paid off in July, 1979.

Mr. Culbreth testified that before July 26, 1979, he had no knowledge of how the override payments were being applied. He acknowledged having indicated that he would pay the discharged unsecured note, but said he had not agreed on a time for payment of that debt.

In the final judgment of foreclosure, the trial court found that the Culbreths made no payments on the note and underlying mortgage from April 10,1975, until April 6, 1977, but that Mr. Culbreth and McElwain Associates had agreed on the system of override payments on merchandise sold by McElwain Associates to Mr. Culbreth. These payments totalled $11,113.17. The court noted that the unsecured obligation had been discharged by the individual bankruptcies of Mr. and Mrs. Culbreth.

The court found that neither Culbreth nor McElwain Associates designated how the override payments would be applied until after McElwain instituted the foreclosure action and the Culbreths asserted the affirmative defense of appropriation of payment to the homestead mortgage. The court ruled the Culbreths were entitled to have all payments made from April 6, 1977, through November, 1979, applied to a reduction of the mortgage on the homestead property, citing as authority Frieslander v. Mahon, 400 So.2d 41 (Fla. 2d DCA 1981). Finding a remaining principal of $680.10 and interest of $188.50 due, the court ruled that McElwain had a lien in that amount and if it were not paid within a certain time the property would be sold at public sale.

Appellant first argues that the court erred in determining that neither party had designated how the payments were to be applied before the foreclosure action was instituted and the affirmative defense asserted. Appellant relies on the general rule, reiterated in Frieslander, that a creditor may apply payments as it sees fit when the debtor fails to direct the order of application, arguing that the trial court confused the creditor’s actual application of payment with notice to the debtor of the application. In the present context, this distinction is without significance. There is competent substantial evidence in the record to support the ruling that neither party indicated how the payments would be applied until after the foreclosure action was instituted. A creditor must promptly apply payments or lose the right to do so as he desires. Frieslander citing Randall v. Pettes, 12 Fla. 517 (1868).

Appellant’s second argument is that the trial court should not have based its ruling on Frieslander because there is no authority for that decision in Florida case law. Alternatively, appellant argues that the instant case is distinguishable from Frieslander, in that the homestead rights of the spouse in this case did not need protection, since she was a participant in mortgaging the homestead property.

In Frieslander the court noted that “[a]n exception to the general rule of first applying undirected payments to unsecured debts is recognized by several states to favor allocation of undirected payments toward a mortgage secured by a lien on homestead property over an unsecured debt.” 400 So.2d at 43.

The fact, alluded to by appellants, that in Frieslander the former wife, who had been given exclusive use and possession of the homestead property, had not been a party to the mortgage on the homestead property, while Mrs. Culbreth did join in mortgaging the property in this case, does not render the rule recited in Frieslander inapplicable to the instant case. The rule of Frieslander and the cases cited therein is based on a policy of protecting homestead rights. This is a valid consideration even though both husband and wife have joined in encumbering the homestead property. In order to encumber the homestead property by mortgage, the husband had to be joined by the wife. Art. X, § 4(c), Fla. Const. This case does not involve the initial ability to encumber the property; rather, the application of payments to satisfy that encumbrance is at issue. Appellant has cited no authority and made no argument that convinces us that the trial court erred in applying the override payments first to the homestead mortgage. Appellant cited as authority Hicks v. Mid-Florida Production Credit Assoc., 374 So.2d 566 (Fla. 1st DCA 1979), however, in that case the court held simply that foreclosure of a non-purchase money mortgage on homestead property is not a forced sale under Art. X, § 4(a), Fla. Const., and is thus permissible. In the instant case foreclosure' was not precluded; rather, the court applied the payments to the mortgage on the homestead first and determined the amount remaining which, if not paid, would be covered by the public sale.

The final judgment of foreclosure is AFFIRMED.

LARRY G. SMITH and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Joseph MENDZEE, Appellant, v. NATIONAL ROOFING CO. and Southeastern Fire Ins. Co., Appellees.
    No. AH-48.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Robert S. Lyons, Fort Lauderdale, for appellant.
    Albert P. Massey, III, of Pyszka & Kes-sler, Fort Lauderdale, for appellees.
   WENTWORTH, Judge.

The claimant in this workers’ compensation case appeals that portion of the deputy commissioner’s order which determines his average weekly wage (AWW). We reverse and remand.

The figure found by the deputy is the average of claimant’s earnings for the thirteen weeks prior to his injury, resulting from apparent application of § 440.14(l)(a), Florida Statutes. Section 440.14(l)(a) is to be utilized in determining an AWW when a claimant has worked “during substantially the whole of 13 weeks immediately preceding the injury.” Since claimant in this case worked only seven of the 13 weeks preceding his injury, that section is inapplicable.

The employer/carrier argues that the AWW assigned by the deputy was proper under § 440.14(l)(f). That section provides:

(f) If it be established that the injured employee was a part-time worker at the time of the injury, that he had adopted part-time employment as his customary practice, and that under normal working conditions he probably would have remained a part-time worker during the period of disability, these factors shall be considered in arriving at his average weekly wages. For the purpose of this paragraph the term ‘part-time worker’ means an individual who customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment.

However, the order does not indicate that the deputy found claimant to be a part-time employee. Clearly such a determination is factual in nature, depending on whether the employee customarily worked part-time and “probably would have remained a part-time worker during the period of disability.”

In the face of these unresolved factual issues, we must reverse and remand to the deputy commissioner to determine the point anew. If claimant was not a part-time worker, the deputy must decide which of the subsections in § 440.14(1), other than subsections (a) and (f), is applicable. The cause is therefore remanded for further proceedings consistent with this opinion.

BOOTH and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    Michael FOX, Appellant, v. STATE of Florida, Appellee.
    No. AI-51.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Lynn Alan Thompson of Levine, Garcia & Thompson, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Fox appeals his conviction for armed robbery with a deadly weapon. We affirm.

A motion to sever codefendants is addressed to the discretion of the trial judge. There was no hostility between the defenses. No abuse of discretion is revealed by the lengthy record in this case, see McCray v. State, 416 So.2d 804 (Fla.1982); Downer v. State, 375 So.2d 840 (Fla.1979).

No abuse of discretion was present in the failure to grant a motion for mistrial. The record does not support the contention that the prosecutor’s improper questioning tainted the trial.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    Anthony SPASARO, Appellant, v. TACO METALS, INC. and U. S. Fidelity & Guaranty Company, Appellees.
    No. AI-104.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    David F. Roemer, Coral Gables, for appellant.
    C. Randal Morcroft, Fort Lauderdale, for appellee.
   MILLS, Judge.

Spasaro appeals a compensation order finding no causal relationship between his heart attack and a compensable automobile accident. We affirm.

Dr. Goodman’s testimony, as well as intervening normal electrocardiograms, is competent substantial evidence to support the order.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    BARILE EXCAVATION AND PIPELINE SEWER IMPROVEMENT and Maryland Casualty Company, Appellants, v. Lamar HOUGH, Appellee.
    No. AI-257.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.

      Jerry V. Wilkey, Coral Gables, for appellants.
    Richard L. Seidel, Miami, for appellee.
   JOANOS, Judge.

Hough cross-appeals Commission action in apportioning the permanent partial disability award. We reverse.

Where there is no evidence that a pre-ex-isting condition was disabling at the time of the industrial accident or that the pre-exist-ing condition had progressed to a point of causing disability at the time the award is made, it is improper to apportion out from the award a pre-existing condition. See Holloway v. Curcie Brothers, Inc., 203 So.2d 499 (Fla.1967).

Our reversal renders the issues on direct appeal moot.

Accordingly, we REVERSE and REMAND with instructions to the Deputy Commissioner to enter an order reflecting no apportionment of the permanent partial disability award.

LARRY G. SMITH and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    Franklin D. HINSON, Petitioner, v. STATE of Florida, Respondent.
    No. AJ-481.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Bill Salmon, Gainesville, for petitioner.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for respondent.
   McCORD, Judge.

Petitioner Hinson has filed a petition for common law certiorari seeking review of the circuit court’s affirmance without opinion of the county court’s denial of his motion seeking discharge because the State failed to bring him to trial within 90 days of his arrest, pursuant to Fla.R.Crim.P. 3.191. Petitioner entered a plea of nolo contendere to driving while intoxicated, specifically reserving his right to appeal the denial of the motion for discharge. We reverse.

The record shows that prior to the filing of petitioner’s motion for discharge, the State filed in the county court a written stipulation, stating as follows:

The State of Florida hereby stipulates in the above styled cause that under the facts in the record defendant Hinson nor his attorney Salmon ever made a valid knowing or intelligent waiver of speedy trial and that speedy trial has run in the case in that defendant’s motion for continuance to complete discovery was chargeable to the state due to failure to timely disclose an essential witness to defendant’s counsel. (Emphasis supplied.)

The stipulation was signed by Daniel W. Clark, Assistant State Attorney. In view of the stipulation, the circuit court’s affirmance of the trial court’s denial of the motion for discharge was error.

Petition for writ of certiorari is granted, and the cause is reversed and remanded with directions that the petitioner be discharged.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.


author: PER CURIAM.

text:
    Jimmy Frank HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. AM-168.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Jimmy Frank Harris, pro se.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of the lower court’s denial, without an evidentiary hearing, of appellant’s Fla.R.Crim.P. 3.850 motion for post-conviction relief. The cause is hereby remanded for the lower court to either hold an evidentiary hearing, or attach to its order of denial “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief See Rule 3.850, Fla.R. Crim.P.

It is so ordered.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    MANASOTA-88, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AD-338.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Thomas W. Reese, St. Petersburg, for appellant.
    David M. Levin, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellee.
   JOANOS, Judge.

Manasota-88, Inc., appeals from the Department of Environmental Regulation’s (DER) denial of its request for an administrative hearing pursuant to Section 120.-57(2), Florida Statutes. We reverse.

The record in this case reveals that in November of 1980 after DER issued a revised operating permit for a crude oil splitter operated by Manatee Energy Company, it sent a letter to Mr. and Mrs. Rains informing them of this action. Mrs. Rains is Chairman of Manasota-88, Inc. Mrs. Rains immediately wrote a letter protesting the action and asking for more information. More correspondence subsequently passed between Rains and DER, including a letter informing Rains of a second change or clarification in the operating permit.

On March 4,1981, Manasota-88, Inc. filed a petition for an informal de novo administrative proceeding concerning these two permit revisions. DER denied the petition on the basis that (1) Manasota-88, Inc., had received actual notice of DER’s actions and the notice constituted a clear point of entry to Section 120.57 proceedings, (2) the petition was not timely filed pursuant to Rule 17-1.62, Florida Administrative Code, which requires filing within fourteen days after written notice of agency action, and (3) Manasota-88, Inc., failed to allege that it has been or will be substantially affected by the agency’s actions and, therefore, has no standing.

As for the first point, the letters from DER to Rains failed to mention Mana-sota-88’s right to request a hearing, to set forth the time limit for requesting a hearing, and to refer to the applicable procedural rules of the agency. Thus DER failed to meet the requirements for providing a clear point of entry to Chapter 120 proceedings. Sterman v. The Florida State University, 414 So.2d 1102 (Fla. 1st DCA 1982); Dickerson, Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981). DER’s own rule setting the time for requesting a hearing at fourteen days did not specify what must be included in the contents of the notice sent to an affected person. Rule 28-5.111, Florida Administrative Code. To the extent that the agency does not adopt a comprehensive rule on the subject matter, the Model Rules apply. See, Citizens of the State of Florida v. Mayo, 357 So.2d 731 (Fla.1978).

On the second issue, it follows that since the letters from DER to Rains did not constitute a clear point of entry to Chapter 120 proceedings, the petition for an administrative proceeding filed March 4, 1981, was not untimely.

As for the question of standing, DER concedes that Manasota-88, Inc. would have had sufficient standing in November of 1980 to have requested a hearing, but adheres to its position that the petition does not contain sufficient factual allegations. Under these circumstances, Manasota-88, Inc., should have been given an opportunity to amend. All Risk Corporation of Florida v. State of Florida, Department of Labor and Employment Security, 413 So.2d 1200 (Fla. 1st DCA 1982), [7 FLW 668].

REVERSED and REMANDED for further proceedings consistent with this opinion.

THOMPSON and WIGGINTON, JJ., concur.

      . Mr. and Mrs. Rains were members of the Izaak Walton League, an organization which participated in Chapter 120 proceedings regarding the original permitting of the crude oil splitter. Manasota-88, Inc. is a nonprofit corporation which is organized for the purpose of protecting and preserving the environmental health and welfare of Manatee and Sarasota Counties and the citizens of those counties.


text:
    STATE of Louisiana ex rel. James L. HUMPHREY v. STATE of Louisiana.
    No. 82-KH-1045.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re James L. Humphrey, applying for remedial writs. Parish of Calcasieu. No. 5635-78.

Granted. Transcript copy sought will be forwarded relator.

MARCUS, BLANCHE and WATSON, JJ., dissent from the grant.


text:
    STATE of Louisiana v. Steve SWAGGERTY.
    No. 82-K-1876.
    Supreme Court of Louisiana.
    July 27, 1982.
   In re Steve Swaggerty, applying for writ of certiorari. Parish of Jefferson, 24th Judicial District Court. No. 80-2232.

Writ granted for the limited purpose of transferring to Court of Appeal for consideration. Art. V, Sec. 5(E), La.Const.1974.


text:
    STATE of Louisiana v. Clarence WHITE.
    No. 82-KH-1891.
    Supreme Court of Louisiana.
    Aug. 4, 1982.
   In re Clarence White, applying for remedial writs. Parish of East Baton Rouge, 19th Judicial District Court. No. 4-80-614.

Denied.


text:
    STATE of Louisiana v. Laurence SOLOW.
    No. 82-K-1951.
    Supreme Court of Louisiana.
    Aug. 4, 1982.
   In re Laurence Solow, applying for remedial writs. Parish of Orleans, Criminal District Court. No. 288-046.

Granted for the limited purpose of transferring application to the Fourth Circuit court of appeal.


text:
    STATE of Louisiana v. Tab HEBERT.
    No. 82-K-1807.
    Supreme Court of Louisiana.
    Aug. 5, 1982.
   In re Tab Hebert, applying for remedial writs. Parish of East Baton Rouge. No. 9-81-952.

Merits not considered. This application is transferred to the Court of Appeal for action. Although the ruling of the trial court was issued before July 1, 1982, this pretrial application was not filed until after July 1, 1982, and this court only has jurisdiction over criminal writ applications filed before July 1, 1982. La.Const. Art. V. § 5(E) (1974).


text:
    STATE of Louisiana v. Jimmy KNIGHT.
    No. 82-K-1981.
    Supreme Court of Louisiana.
    Aug. 5, 1982.
   In re Jimmy Knight, applying for supervisory and remedial writs. Parish of East Baton Rouge. No. 3-80-360.

Granted and transferred. This application is granted for the limited purpose of transferring it to the Court of Appeal, First Circuit, and it is so ordered.


text:
    Fred A. PARKER v. Deborah J. SLIE.
    No. 82-C-2013.
    Supreme Court of Louisiana.
    Aug. 5, 1982.
   In re Deborah A. Slie, applying for writ of certiorari and stay order. Parish of Jefferson, Nos. 187-099 C/W 187-156.

Granted. The matter is remanded to the Court of Appeal with instructions to treat the application for writs as a petition for appeal. Relator may reurge her motion for expedited disposition by the Court of Appeal, and respondent may reurge his exceptions.

Execution of the June 3, 1982 judgment is stayed until the Court of Appeal rules on the appeal.


text:
    STATE of Louisiana v. Lloyd SIMMONS.
    No. 82-K-1896.
    Supreme Court of Louisiana.
    Aug. 5, 1982.
   In re Lloyd Simmons, applying for writ of certiorari and stay order. Parish of Orleans. No. 287-753.

Denied.


author: CUTRER, Judge.

text:
    John C. DUNCAN, Plaintiff-Appellant, v. PARAGON RESOURCES, INC., Defendant-Appellee.
    No. 8818.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Rehearing Denied July 21, 1982.

      Mouton, Roy, Carmouche, Bivins & Kraft, John A. Bivins, Lafayette, for plaintiff-appellant.
    William H. Mouton, Lafayette, and Bracewell & Patterson, Joe H. Foy and Ronald Scott, Houston, Tex., for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This appeal arises out of a suit by a geologist seeking to be declared the owner of an overriding royalty interest in four leases owned by his former employer, Paragon Resources, Inc.

John C. Duncan (Duncan) brought suit against Paragon Resources, Inc. (Paragon) seeking to be declared the owner of an overriding royalty interest in four specific leases owned by Paragon in Beauregard Parish, Louisiana. The suit seeks the specific performance of an alleged contract between the parties. Alternatively, Duncan seeks such royalty interest, or money for an amount equivalent thereto, for the alleged breach of a contract and, a further alternative, recognition of the right to such interest by means of quantum meruit.

The trial court rendered judgment dismissing Duncan’s suit. Duncan appeals. We affirm.

Duncan was employed as a geologist by Paragon on January 1, 1976 at an annual salary of $40,000.00. He was assigned to Paragon’s Lafayette office. Among the duties assigned to Duncan was to seek prospects for the purpose of drilling for oil production. Duncan, in cooperation with members of the land department, would examine oil prospects that would come to their attention. Duncan would study the prospect from the geological standpoint and make a recommendation as to whether oil production would be possible if such prospect was drilled. After such prospects were located and studied, the recommendation would be submitted to Paragon. The executives of Paragon would examine the prospect and its geology. After such examination, Paragon made the final decision as to whether the prospect should be drilled. Duncan had further duties of selling interests to investors to raise money for drilling purposes. Paragon would also capitalize the wells by “farm outs” to another company and retain a participating interest in each well. Paragon usually ended up with twenty-five percent interest in the well.

In August 1976, Duncan and Paragon entered into a written employee incentive agreement whereby Duncan would have an option to purchase up to twenty percent of Paragon’s interest in prospects submitted by him. Under the terms of this agreement, if Duncan elected to financially participate in the drilling of the prospect, he would obligate himself to pay his proportionate share of the costs of drilling, testing, completing and operating the well or wells that were drilled on the prospect. Also, the instrument provided that if Paragon purchased royalties, Duncan could participate in these purchases up to the same extent as in the acquisition of leases (twenty percent) by paying his pro rata share of the costs of acquisition. This agreement included prospects that may be found in an area covering approximately the South half of the State of Louisiana including Beauregard Parish, where the leases in question are located.

The 1976 agreement contained a termination provision which stated as follows:

“This agreement shall be effective as of January 1, 1976, and, unless terminated or modified by agreement of the parties thereto, shall continue in effect only during the period of Duncan’s employment by PRI.”

In 1978, Paragon’s business was not progressing as expected by the executives. It was decided to hire a new executive officer in order to enhance the success of Paragon. John Fox was hired in 1978. He was a man of much background in this sort of endeav- or. He was made president of Paragon and Mr. Templeton, the prior president, assumed the position of chairman of the board of directors.

Fox, in order to get the company moving, decided to make a substantial change in the method of operation. Paragon, in 1978, embarked upon a plan to sell public drilling funds through Merrill-Lynch in order to finance drilling operations. To accomplish this public drilling funds method of capitalization, it took about one year of processing. The registration of the public stock intention was to be filed and approved by the Securities and Exchange Commission. Various requirements had to be met. By the time all the requirements were met one year had expired. Paragon actually sold the public stock program in July 1979 for $10,000,000.00. Under this plan, Duncan would no longer be required to locate investors to assist in financing the drilling of the prospects.

Soon after Fox took office with Paragon, he examined the 1976 incentive agreement that Paragon had with Duncan. He concluded that the agreement was incompatible with the new Merrill-Lynch financing plan. Duncan had an option to purchase twenty percent or less in prospects. Since it was discretionary whether Duncan would exercise his option and also discretionary as to what extent he may wish to participate, up to the maximum of twenty percent, this agreement was not specific enough to satisfy the requirements of the Merrill-Lynch program. Duncan understood and admitted this in his testimony.

On October 19, 1978, Fox and Duncan met and, after a discussion, the 1976 agreement was terminated. The termination agreement provided as follows:

October 19,1978
Thursday
Memorandum of Agreement
Paragon Resources, Inc. has a present incentive agreement with J. C. Duncan, an employee, dated August 25, 1976 and amended March 31,1978. Paragon and Duncan are desirous of terminating the agreement, as amended as to ail past, present and future prospects except:
(1) Cottonwood Field Prospect (1)
Liberty Co., Texas
In & about Block 17, T & N O R R C 0.
Survey (A-370)
(2) Gordon Prospect (1)
Beauregard Parish, Louisiana (Goidking No. 1 Owens-Illinois Well)
It is hereby mutually agreed, except for the aforementioned Prospects, the aforementioned agreement is hereby terminated for good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged.
PARAGON RESOURCES, INC. S/JC Duncan B7: s/JohnJ.FoK_
J. C. Duncan John J• Fox- P™dent”

At the same time another instrument was executed which provided as follows:

October 19,1978
Thursday
Memorandum of Agreement
Paragon Resources, Inc. is in the process of initiating an incentive program for its key officers and employees in its Division offices and its home office.
J. C. Duncan, South Louisiana Division Manager, has an existing incentive agreement with Paragon which, with the exception of two prospects, is being terminated coincident with the execution of this memorandum. The planned incentive program, to be reduced to writing in the near future, will contain provisions, among others, that will define the South Louisiana Division Area as shown on attached Exhibit “A” in order that there will be an understanding of the prospects in
which J. C. Duncan and other participating Division employees
will have an economic interest after Paragon's payout.
PARAGON RESOURCES, INC.
s/JC Duncan By- s/John J- Fox
J C Duncan John J- Pox, President ”

Duncan was given an annual salary raise of $5,000.00 at the time these two instruments were signed.

The “planned incentive program” referred to above had not been prepared and submitted to the participating divisional employees by the time of Duncan’s resignation on July 31, 1979.

Fox testified that he and Templeton had decided to terminate the 1976 agreement with Duncan and to work up a planned employee incentive program that would include divisional key employees. Fox, an attorney, intended to prepare the plan himself. However, due to the increase of business matters as a result of the transition to the Merrill-Lynch plan, the increase in drilling operations in 1979 as a result of $10,-000,000.00 being made available under the new program and a serious illness that was incurred by Fox, he was delayed in preparing and submitting the program as had been planned. This plan was finally prepared and presented to the key employees in early 1981.

In January 1979 (prior to Duncan’s resignation), C. R. Naylor prepared a drilling prospect, including the geology, other needed information and an initial lease of 169 acres of land. This prospect was called the Northwest Singer Prospect located in Beauregard Parish. Naylor presented this prospect to Duncan who recommended same to Paragon. It was understood between all parties, Naylor, Duncan and Paragon, that, for this prospect to be large enough an area to justify a drilling operation, more acreage must be acquired. The total proposed concept for this prospect was approximately 1,200 acres. The adjoining property was owned by Rice-Land Lumber Company and, at the time the prospect was submitted to Paragon, the needed property was leased to another company. The Northwest Singer prospect was purchased by Paragon from Naylor on January 12, 1979, for $30,000.00 plus an overriding interest for Naylor. Paragon purchased the prospect knowing that it would have to acquire the Rice-Land Lumber leases before the prospect could be drilled.

Duncan resigned from his employment with Paragon on July 31, 1979.

After expiration of the outstanding leases on the adjoining property (July 31,1979), Paragon began negotiations with Rice-Land for the lease of approximately 900 acres adjoining the 169 acre lease originally submitted by Naylor. Paragon was able to obtain the leases of the adjoining 900 acres in August and September 1979. The drill site was located on this acreage. Paragon drilled a well on this acreage which “spud-ded-in” in January 1980 and was completed as a producer in March 1980.

This suit by Duncan was then filed on July 8, 1980. Duncan seeks to be declared the owner of an overriding interest of two percent of the production from the Northwest Singer Prospect subject to payout provisions.

The substantial issues on appeal are as follows:

(1) Whether the trial court erred in its ruling that parol evidence was not admissible to prove Duncan’s right to a two percent overriding royalty interest in the Northwest Singer Prospect;
(2) Whether the trial court erred in not, alternatively, reinstating and enforcing the 1976 agreement; and
(3) Whether the trial court erred in not awarding an overriding interest in the prospect on the basis of a breach of the October 1978 contract or by way of quantum meruit.

PAROL EVIDENCE TO PROVE DUNCAN’S RIGHT TO AN OVERRIDING ROYALTY INTEREST

At the trial of this matter, counsel for Duncan offered parol evidence to prove the essential elements of the proposed incentive program which were discussed by Duncan and Fox at the time the October 1978 instrument was executed. This parol evidence was objected to and admitted subject to the objection. In his reasons for judgment the trial judge held that this pa-rol evidence was not admissible to prove Duncan’s entitlement to an overriding royalty. On appeal, counsel for Duncan argues that such parol evidence is admissible to clarify the intent of the parties and the uncertainty and ambiguity existing in the October 19, 1978 agreement. The trial judge reasons fully and correctly answer these arguments and we adopt those reasons as our own as follows:

“(1) The parol evidence offered by plaintiff and objected to by defendant was not admissible in support of plaintiff’s demand to be recognized as the owner of an overriding royalty interest. An overriding royalty interest is a mineral right, and, as such, it is classified as a real right and an incorporeal immovable. Under our law every transfer of an immovable must be in writing and title cannot be established by parol evidence. These rules are succinctly set forth in Robichaux v. Pool, 209 So.2d 77 (La.App. 1st Cir. 1968), where the court said:
‘Overriding royalty interests are classified as real rights and incorporeal immovable property. This law is substantive as well as procedural and the owners thereof shall have the benefit of all laws relating to the owners of real rights in immovable property. LSA-R.S. 9:1105. It is well settled that title to overriding royalty interests may not be proved by parol evidence. LSA-C.C. 2275 and 2462. See Wier v. Glassell, 216 La. 828, 44 So.2d 882; Acadian Production Corp. v. Tennant, 222 La. 653, 63 So.2d 343; Little v. Haik, 246 La. 121, 163 So.2d 558; Hayes v. Muller, 245 La. 356, 158 So.2d 191, Article 2275 has been rigidly enforced against all persons seeking to establish an interest in immovable property by parol evidence. Little v. Haik, supra.
While that case predates the adoption of Louisiana Mineral Code and the repeal of R.S. 9:1105, the principles set forth are still applicable. See Articles 16 and 18 of the Mineral Code.
“Where there is a written document between the parties concerning immovable property, but the description or identity of the property involved is defective or ambiguous, parol evidence may be allowed to establish a description, provided ‘there is sufficient body in the description to leave the title substantially resting on writing, and not essentially on parol .. .’ See Kernan v. Baham, 45 La.Ann. 799, 13 So. 155 (1893) and Lemoine v. Lacour, 213 La. 109, 34 So.2d 392 (1948). Thus, in some cases a party claiming title to an immovable may be allowed to ‘eke out’ title by parol. But this is only where the description rests substantially on the written document and not on oral supplementary testimony.
“Here the memorandum of agreement (P-4), dated October 19, 1978, concerning the planned incentive agreement for Mr. Duncan and other key employees of Paragon, is not, on its face, a writing sufficient to transfer to plaintiff an overriding royalty interest in the specific leases in question and it does not have sufficient specificity to justify or permit the use of parol evidence to establish such an interest in specific leases and properties.
“The instrument in question is extremely vague and non-specific. While it refers to a ‘planned incentive program, to be reduced to writing in the near future’ and mentions that Mr. Duncan and other employees ‘will have an economic interest after Paragon’s payout’ in ‘prospects’ in the South Louisiana Division Area, there is nothing in the instrument to indicate the nature of the economic interest, the size of such interest, when such interest would be earned, or what is meant by the terms ‘prospect’ and ‘payout’. The instrument evidences an agreement that there was to be an employee incentive program in the future, but it does not purport, even by implication, to give Mr. Duncan presently or prospectively, an overriding royalty interest in any leases held by Paragon. Thus there simply is not sufficient substance to the writing to allow plaintiff to eke out title to an overriding royalty by parol evidence.
“The issue in Robichaux v. Pool, supra, was very similar to the one under consideration here and there, with written agreements between the parties that were much more explicit and detailed than the instrument in this case, the court held that the plaintiff was not entitled to use parol evidence to prove title to an overriding royalty interest. It further held that such evidence was not admissible to modify a written instrument pertaining to such interest. That case fully supports the decision reached here that parol evidence was inadmissible to establish plaintiff’s claim.
“The recent case of Sloane v. Davis [397 So.2d 1376], No. 8079 in the Court of Appeal, Third Circuit, decided April 15, 1981, while involving a claim by a geologist-employee for assignment to him of certain overriding royalty payments from a particular mineral prospect, is of no real help in resolving the issues in this case. There the court recognized that under certain circumstances parol evidence is admissible to clarify ambiguities in a written contract and to show the intentions of the parties. That is a well recognized exception to the parol evidence rule, but it is not applicable here because Mr. Duncan offered the parol evidence to establish title, or an agreement for title, to an incorporeal immovable where the underlying written document is totally inadequate to support the use of parol. The most that can be said about the written instrument of October 19, 1978, is that it was an agreement between Mr. Duncan and Paragon that in ‘the near future’ an incentive program, then in the process of being initiated by Paragon, would be reduced to writing and the terms spelled out. But it is very clear from that document that there is no agreement as to when the incentive program would be reduced to writing or what its terms and conditions would be.”

THE 1976 AGREEMENT

Counsel for Duncan next contends, alternatively, that in the event Duncan’s interest is not recognized under the October 1978 agreement, then his interest should be recognized under the 1976 incentive contract. This argument is without merit.

This original employee incentive agreement went into effect on January 1, 1976, and would remain in effect during Duncan’s employment. Thus, the agreement could be terminated (except for interests that had become vested) in either of the following ways: (1) by mutual consent of the parties; (2) resignation of Duncan; or (3) discharge of Duncan by Paragon. In this instance, it was terminated by method (1), consent of the parties. This termination was entered into voluntarily by Duncan. He understood the reason for Fox’s request for termination and also that if he did not agree to the termination, such termination would be accomplished by his discharge (method # 3). When Duncan agreed to the termination, he retained his job and obtained an increase in salary. As stated by the trial court in its reasons for judgment, “The truth is that the old plan was going to be cancelled, one way or the other, regardless of whether a new incentive program was put into effect.” It cannot be said that the failure of Paragon and Duncan to consummate a new incentive program would have the effect of reviving the terminated 1976 incentive program. The trial court correctly resolved this issue.

BREACH OF OCTOBER 19, 1978 AGREEMENT OR QUANTUM MERUIT

Duncan contends that when Paragon did not reduce the new incentive program to writing and submit same by the time of his resignation, the October 1978 agreement was breached and Duncan suffered damages, the measure of which is an overriding interest in the prospect at issue. As a further alternative, Duncan contends that he is entitled to an overriding royalty interest, or a money judgment equivalent thereto, on the basis of quantum meruit. These arguments lack merit.

We have ruled heretofore, by adopting the trial judge’s reasons, that an overriding royalty interest is a real right and can only be transferred in writing. Such a right may not be acquired by parol evidence. For Duncan to obtain his overriding interest on the basis of the breach of the October 1978 agreement would be allowing him to accomplish, indirectly, what he cannot do directly; i.e., the establishing of an overriding interest by parol evidence.

Also, we have noted that when the 1976 agreement was terminated by agreement, such termination was final except as to interests that had previously vested. The termination agreement was not conditioned upon the execution of a new incentive program. The October 1978 instrument in question only expressed the intention of Paragon to submit a new written incentive program. After the termination of the 1976 agreement on October 19, 1978, Duncan was working and performing his duties for an annual salary of $45,000.00 but without the benefits of any incentive agreement. Duncan resigned his job on July 31, 1979, before any such agreement was reduced to writing and accepted by him. Under these circumstances, Duncan did not acquire any vested rights in any mineral interests by any breach of contract in prospects presented by him to Paragon after October 19, 1978, up until his resignation on July 31, 1979.

As to quantum meruit, after October 1978, until his resignation in July 1979, Duncan was performing his duties as an employed geologist for which he was paid a substantial salary. There is no proof that he performed any services, in regard to the prospects in question, beyond those that he was obligated to perform as an employed geologist. Duncan would not be entitled to an overriding interest on the basis of quantum meruit.

In summary, Duncan has established no legal basis upon which he may be entitled to a right to an overriding royalty interest in the Northwest Singer Project owned by Paragon.

For these reasons, the judgment of the trial court is affirmed. Duncan, plaintiff-appellant, is to pay all costs of this appeal.

AFFIRMED.

      . Sixty-Five wells were drilled by Paragon in 1979.

      . LSA-R.S. 31:16 provides:
      “The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.” (Emphasis ours.)
      LSA-R.S. 31:18 provides:
      “A mineral right is an incorporeal immovable. It is alienable and heritable. Tire situs of a mineral right is the parish or parishes m which the land burdened is located. All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry.”

      . At Duncan’s suggestion, the 1976 agreement remained effective as to these two prospects. These two prospects are not at issue in the case at hand.


author: REDMANN, Chief Judge. PER CURIAM.

text:
    Anna Margaret Bodden, wife of Richard ARSENAUX v. Richard ARSENAUX.
    No. 12721.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.
    Writs Granted Oct. 1, 1982.

      Roger B. Jacobs, Jacobs, Loeffelholz & Trestman, New Orleans, for plaintiff-appel-lee.
    Frank Sloan, Silvestri, Marinaro & Massi-cot, New Orleans, for defendant-appellant.
    Before REDMANN, C. J., and GULOTTA and KLEES, JJ.
   REDMANN, Chief Judge.

A husband appeals from a judgment of separation in favor of his wife based on abandonment, holding her without fault and rejecting as unproven his reconventional demand for divorce for adultery by the wife.

The principal question is whether the trial court erred in excluding evidence that, allegedly, the wife had had an abortion, and that she could not have been impregnated by the husband because he had two years earlier had a 100% effective vasectomy. We remand for admission and consideration of the excluded evidence.

The trial judge excluded evidence of the abortion on grounds of the wife’s state statutory privilege, La.R.S. 13:3734 B, and federal right to privacy, citing Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). We hold both privilege and privacy waived by the wife’s demand for separation and for entitlement ultimately to post-divorce alimony based on her own freedom from fault, as well as by her testimony that she was free from fault.

Bellotti held unconstitutional a statute that required, in lieu of parental consent, judicial consent after notification to the parents, for a minor to obtain an abortion. Earlier, Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), had invalidated a statutory requirement for the husband’s consent for a married woman’s abortion and for one parent’s consent for a minor’s abortion. Accepting that Danforth would invalidate any state law granting a husband power to veto his wife’s decision to have an abortion, and assuming that by implication Bellotti might invalidate any state law obliging wife or doctor even to notify the husband of the wife’s decision to have an abortion, those cases still do not decide our questions of waiver of privilege and of admissibility of privileged evidence for impeachment purposes.

Not even the constitutional protections against self-incrimination and unreasonable search and seizure can exclude evidence that would impeach false testimony. The United States Supreme Court has in several criminal cases ruled admissible, for impeachment purposes, evidence ordinarily inadmissible because obtained in violation of those constitutional rights. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). In Havens, 100 S.Ct. at 1916, noting the purpose of arriving at the truth and the obligation of witnesses to testify truthfully, the Court declared that Harris

rejected the notion that the defendant’s constitutional shield against having illegally seized evidence used against him could be “perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”

The bedrock principle of waiver of privilege is fairness. This wife demands a judgment of separation and future entitlement to permanent alimony on the basis of her husband’s fault in abandoning her without fault on her part. The wife raises the question of whether she was free of fault, but asks the court to prevent her husband from answering it. That is simply not fair. If a spouse seeks an adjudication that he or she is free from fault, that spouse necessarily waives any privilege or privacy that would otherwise shield his or her fault from exposure.

The principle of waiver is emphatically stated in another context by Wigmore, Evidence (McNaughton rev. 1961) § 2389(c)(2):

Certainly it is a spectacle fit to increase the layman’s traditional contempt for the chicanery of the law when a plaintiff describes at length to the jury and a crowded courtroom the details of his supposed ailment and then is permitted to suppress the available proof of his falsities by asserting that he wishes to keep the matter confidential.

This court itself has previously applied the waiver principle in Acosta v. Cary, 365 So.2d 4, 5 (La.App. 4 Cir. 1978), holding that an employee “must forego his [medical] privacy (insofar only as relevant) in order to claim compensation benefits.” We now hold that a spouse who claims freedom from fault must forego his or her privacy in respect to medical evidence that would show the claimant’s fault.

The husband’s purported proof of the wife’s adultery consists of two basic elements: first, he offers to prove that he had in 1976 a vasectomy that was completely effective and therefore he could not thereafter have impregnated the wife; and second, he offers to prove that the wife was thereafter impregnated, by proving she had an abortion in 1978 under an assumed name. That evidence is admissible under both impeachment and waiver principles.

The husband also complains of the exclusion of proffered tape recordings of telephone conversations or parts of conversations. Although tape recordings may be admissible as prior inconsistent statements, Lefort v. Meibaum Bros., Inc., 321 So.2d 824 (La.App. 4 Cir. 1975), only one of the proffered recordings purported to contradict a witness (the parties’ ten-year-old son), and that on an irrelevant point. That a witness does not at trial remember an incident is not grounds for impeachment. As to one other recording, the wife admitted she had made the statement in an upset state. Otherwise, the recordings are simply non-probative of anything except that, as every lawyer and judge in the field knows, separated spouses often become very upset with each other and, unfortunately, they consciously or subconsciously communicate their upset state to their children. It was not error to exclude the proffered recordings.

The husband further complains of the trial court’s refusal to admit, in accordance with La.C.C.P. 1450(3)(d), the depositions of two witnesses whom he claims to have subpoenaed but who did not appear at trial. The record showed (and the husband argued) that a subpoena (duces tecum) was served on one of the two on October 6 for the November 20 trial, and that subpoenas were directed to the other one at three different addresses on October 3, although there is no return of service on any of those three subpoenas. Under La.C.C.P. 1450(3)(d) a deposition is admissible if the court finds “that the party offering the deposition has been unable to procure the attendance of the witness by subpoena . . . . ” The trial judge’s view that the husband should have moved for a continuance under C.C.P. 1602 is, in our judgment, an insufficient basis for excluding the depositions. If a litigant does not have the deposition of an essential witness whose attendance he or she has been unable to procure by subpoena, that litigant must of course seek a continuance. But one is not obliged to move for a continuance if art. 1450(3)(d) authorizes the admission of an available deposition of the missing witness. We deem the husband’s showing sufficient for purposes of C.C.P. 1450(3)(d). The depositions are therefore admissible.

The husband’s other complaints of error, save as to the fixing of child support, are rendered unripe for decision by our setting aside of the judgment and remanding. Child support was fixed $50 higher than the previous $500 fixed five months earlier for alimony and child support together. That total may have been limited by the husband’s ability to pay, and the judge might therefore award the full $500 for the child alone. But the wife’s counsel stipulated there was no (other?) change in circumstances and it was therefore error to fix child support in an amount higher than the previous total.

The judgment appealed from is set aside, except for its provision for child support, which is reduced to $500 monthly, and except for its provision for visitation, which is not directly questioned; and the matter is remanded for further proceedings consistent with this opinion. Costs are to await final judgment.

ON APPLICATION FOR REHEARING

PER CURIAM.

The husband’s application for rehearing points out that no change in alimony pendente lite and child support had been sought by any pleadings subsequent to the July 16, 1980 judgment. At the trial on November 20, resulting in the November 10 judgment now on appeal, counsel stipulated that there had been no change in circumstances pleaded. We therefore conclude that in place of an award for child support there should have been a simple continuation of the July 1980 award of $500 for both alimony pendente lite and child support while the mother’s temporary custody continues. Our decree is so amended. Rehearing is otherwise denied.


author: GARRISON, Judge. SCHOTT, Judge, dissenting in part and concurring in part.

text:
    Gloria Marie ADAMS v. Wilbert J. POURCIAU and Allstate Insurance Company.
    No. 12257.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.

      Gilbert E. Stampley, Harris and Stam-pley, New Orleans, for plaintiff-appellee.
    Buckley & Ward, Joseph R. Ward, Jr., New Orleans, for defendants-appellants.
    Before SCHOTT, GARRISON and KLEES, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court in accordance with a jury verdict granting to plaintiff damages in the amount of $20,000.00. From that judgment, which we affirm, defendant appeals.

On Sunday, February 5, 1978, at about 9:00 p. m., Gloria Adams was leaving the “Bacchus Extravaganza” held in the Super-dome in New Orleans. The “Bacchus Extravaganza” was a combination rock concert and Bacchus parade. Adams was crossing Girod Street on foot when the accident occurred. She was struck by a vehicle driven by Wilbert J. Pourciau. Plaintiff suffered a fractured carpal navicular joint of the wrist and contusions about the lower extremities for which she was treated by Dr. Raymond Kitziger. Plaintiff was employed as a pharmacist at the K & B Drugstore at Claiborne and Napoleon. She missed 331.89 hours of work for the period of February 6, 1978 through March 30,1978 as a result of the accident.

On appeal, defendant argues that the trier of fact was manifestly erroneous in finding defendant negligent.

Both plaintiff and defendant agree that the accident occurred on Girod Street, which is a six-lane street with three lanes of traffic traveling in either direction. Placing the post office on the far left and the Superdome on the far right, the six lanes of traffic are between those two entities, numbered from left to right one thorough six, respectively. Defendant’s car was located in, and the accident occurred in, lane number one, closest to the post office. Lane three was blocked by three to four parked buses. Plaintiff was crossing from the Superdome side of Girod Street. She had successfully crossed lanes six through four when she stopped at lane three. Plaintiff testified that she walked between the parked buses, pausing to look at the traffic in the oncoming lanes before crossing. She had successfully crossed lane two when the accident occurred in lane one. Plaintiff testified that she was walking and that she was the last person to cross in a group of pedestrians who were crossing Girod Street at that time. She further testified that she had seen the Pourciau vehicle when she had stopped by the parked buses but that the vehicle was such a far distance away that she felt it presented no danger.

In contrast to plaintiff’s testimony, Mr. Pourciau, the driver of the vehicle, and the three passengers, Mrs. Evelyn Pourciau, John Cavallino and Mrs. Rita Cavallino, all testified that plaintiff was running across the street when she ran into the right fender and flipped over the top of defendant’s car. They also testified that there were no other pedestrians crossing Girod Street at the time of the accident.

On appeal, the standard of review to be applied by the appellate court is whether, in light of the evidence and testimony presented, the trier of fact was not merely erroneous, but manifestly erroneous in its factual determinations. Canter v. Koehring Co., 283 So.2d 716 (La., 1973); Arceneaux v. Dominguez, 365 So.2d 1330 (La., 1978). The factual issues in this case depend solely on an evaluation of the credibility of the witnesses. Plaintiff’s attorney constantly questioned defendant and defendant’s witnesses on the duration and extent of their friendship, whether they had discussed the accident between and among themselves, whether they knew if defendant had insurance and, at one point, asked defendant’s witness if the passengers had “agreed on a story.” It appears that this line of questioning and the two radically diverse stories raised a credibility issue in the minds of the jury that was resolved in favor of the plaintiff. In any case, we may not substitute our own judgment for that of the trier of fact on issues of credibility.

Turning to the question of quantum, we note that plaintiff proved the following damages at trial:

Dr. Kitziger’s Medical Bill $ 176.00
Hotel Dieu Emergency Room Bill 200.00 Lost Wages 2.799.07
Total Specials $3,175.07

Dr. Kitziger testified that plaintiff was under treatment for approximately 4V2 months, that her wrist was initially placed in a splint, then a cast, and that after removal of the cast, she was prescribed warm soak treatments. He estimated that she retains 10% permanent disability of the wrist. Plaintiff also received treatment from Dr. Beverly Yount, but Yount’s bill was not introduced. Likewise, plaintiff’s answers to interrogatories show that she paid $75.00 for medication and $60.00 to a physical therapist, but neither of these items was introduced at trial; hence, they cannot be considered as part of an award.

Turning to the amount of quantum awarded, we note that the standard on review is whether the amount awarded constitutes a dear abuse of discretion. Plaintiff suffered a bruised and swollen thigh, a busted and swollen lip and a fractured carpal navicular joint of the wrist, all causing her to miss 331.89 hours, or 8.3 40-hour weeks, of work. While she suffers no occupational disability, she was diagnosed by Dr. Kitziger as having a 10% anatomical permanent disability and was required to wear both a splint and a cast. In light of the evidence presented, we cannot conclude that the amount awarded constitutes a dear abuse of discretion.

Allstate attempts to raise on appeal the question of policy coverage. Allstate argues that plaintiff failed to prove that Pourciau’s policy covers the specific accident at issue in all particulars and that plaintiff failed to show that there is no excess issue. This issue was raised at trial by a motion for a directed verdict, which the trial judge denied. Denial of a directed verdict is not an appealable issue, but rather is an interlocutory order. Accordingly, it is improperly before this court and cannot be addressed.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

SCHOTT, J., dissents in part and concurs in part.

SCHOTT, Judge, dissenting in part and concurring in part.

Plaintiff testified that she suffered a bruised and swollen thigh and a busted and swollen lip in addition to the injured wrist for which she was treated at the emergency room of Hotel Dieu Hospital. The next day she saw Dr. Yount who referred her to Dr. Kitziger. She testified that her wrist still “snaps” periodically as of January 21, 1980, when the 'case was tried and it is painful when it snaps.

Although Dr. Kitziger assigned a ten per cent permanent disability to plaintiff’s wrist, he explained that this disability would not be a functional disability for her in her occupation as a pharmacist. He stated that some future arthritic problems were “possible” but “not too likely” and this was the only basis for his assignment of a ten per cent permanent disability. He stated that she was only “slightly hurt.”

Thus, plaintiff failed to prove that she sustained permanent injuries and the jury abused its discretion by awarding her almost $17,000.00 for relatively minor injuries from which she recovered in less than two months, except, perhaps, for the snapping which was inconsequential. A reduction of the award for general damages is clearly warranted by the record since the jury abused its discretion.

As to Allstate’s contention that plaintiff failed to prove insurance coverage, it raised this issue by a motion for a directed verdict pursuant to C.C.P. Art 1810. The trial judge denied this motion for the reason that Allstate in its answer to plaintiff’s petition admitted the existence of the policy. However, it also denied any allegations tending “to enlarge, contradict, or contravene the terms, conditions, provisions, exclusions, or limitations of liability contained therein” and pled that the policy was the best evidence of its contents.

Assuming, for the sake of discussion, that the motion was incorrectly denied, Allstate is not entitled to a reversal of the judgment. The case continued after this motion was denied and Mr. and Mrs. Pourciau both testified that Allstate insured them for this accident. Allstate had the opportunity to produce its policy if limits of liability were a pertinent issue and it chose not to do so.

In Lucas v. Doe, 371 So.2d 336 (La.App. 4th Cir. 1979) and Carriere v. Triangle Auto Service, 340 So.2d 665 (La.App. 4th Cir. 1977) we were confronted with judgments against insurance companies under similar circumstances although the directed verdict problem was not there. Nonetheless, in each of those cases we remanded it to the trial court for a coverage determination, but we did not reverse the case.

In the present case a remand would serve no useful purpose on the question of coverage per se because that was established with the testimony of the Pourciaus. As to the extent of coverage, Allstate had the opportunity to produce its policy after the Pourciaus testified and by failing to do so acquiesced in that testimony.

Thus, I concur with the majority on the question of liability but respectfully dissent on the issue of quantum.


author: BYRNES, Judge.

text:
    SUCCESSION OF Virginia Vasques CATANZARO.
    No. 12676.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Aug. 19, 1982.

      Jules J. Mumme, III, New Orleans, for appellant.
    Ronald J. Favre, New Orleans, for appellant.
    Before BARRY, BYRNES and WARD, JJ.
   BYRNES, Judge.

This is an appeal from a trial court ruling that the parties seeking to nullify the last will and testament of decedent, by virtue of decedent’s lack of testamentary capacity, have failed to sustain the requisite burden of proof. The judgment of the lower court declared the last will and testament of decedent dated October 15, 1969 to be valid. We affirm the lower court’s decision.

The trial judge, in his reasons for judgment, upheld the validity of the October 15, 1969 will and we adopt those reasons and include them herein as follows:

“Evidence before the Court indicates that the decedent, Mrs. Virginia Marie Vas-ques Catanzaro, made several wills during her lifetime, including the three (3) that are before this Court. The testaments that are contested before the Court and upon which judgment is rendered are those dated: May 10, 1968, filed by Irvin Carbalan; June 23, 1969, filed by Myrl D. Fair; and a third dated October 15, 1969, filed by Annaise F. Touchard.
“It is clear under Louisiana law, as well as the jurisprudence, that ‘testaments are revocable at the will of the testator.’ LSA-CC Art. 1690 (cases are too numerous to cite)
“Each of the testaments, before this Court, contained language expressly revoking all prior wills.
“Our Supreme Court declared unequi-vocably in 1927 that ‘a testator may revoke a will any time between confection thereof and his or her death’, and this pronouncement continues as the law governing the making of successive wills to this day. Succession of Nelson, 163 La. 458, 112 So.2d 298 (1927).
“It is urged that since an Interdiction of the decedent was sought in September 1968 (See: CDC No. 483-112, filed Sept. 17, 1968), she was incapable of making a valid will subsequent to that date. However, this is clearly not the law in Louisiana. See: Succession of Lanata, 205 La. 915, 18 So.2d 500 (1944).
“Testamentary capacity is always presumed. This Court finds nothing in the testimony of any of the witnesses which would indicate that on October 15, 1969, the testatrix was incapable of revoking the will she made on June 23, 1969, and making a valid disposition of her property on the date of October 15,1969. The fact that Mrs. Catanzaro frequently changed her mind may raise questions in the mind of an unsophisticated observer, but Mr. Carbalan who attempted to convince the Court that the testatrix lacked ‘mental capacity,’ acknowledged that he and the testatrix exchanged letters during 1969. When taken as a whole, this Court came to the conclusion that there were several reasons why the decedent may have decided not to leave her property to Mr. Carbalan. As a matter of fact, this Court believes that the testatrix, like many persons of advanced years, felt that she should leave her property to the person who ‘was kind to her in her last days’ and as her circumstances changed she changed her will.
“In order to overcome the presumption of ‘sanity’ one must show by cogent, satisfactory and convincing evidence that the testatrix was incapable of dispositive intent. Succession of Brown, 251 So.2d 465 (La.App. 1st Cir. 1971), Succession of Dixon, 269 So.2d 323 (La.App. 2nd Cir. 1972), Succession of Bush, 292 So.2d 915 (La.App. 1st Cir. 1974)
“The burden of proof of ‘incapacity’ is upon the ‘attacker’ of the will. This burden was not met and the ‘attack’ is rejected.”

The Supreme Court, in a further pronouncement, stated in the Succession of Riggo, 405 So.2d 513 (La.1981):

“ ‘To make a donation either inter vivos or mortis causa, one must be of sound mind.’ LSA-C.C. art. 1475. Testamentary capacity is tested as of the moment at which the donation is made. LSA-C.C. art. 1472. Testamentary capacity is presumed and the burden of establishing the contrary is on the party attacking the will. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951). It is settled law that this presumption continues until destroyed by cogent, satisfactory and convincing evidence. Succession of Mithoff, 168 La. 624, 122 So. 886 (1929); Succession of Schmidt, supra. Obviously, it is because proponents of any will have a presumption of sanity going in, that opponents, in order to have their evidence preponderate, must bear the burden of establishing lack of testamentary capacity with clear and convincing evidence.”

Although the opponents of the will did indeed show that the decedent was somewhat impaired mentally at times, they did not carry the burden of proof required to overcome the strong presumption of sanity that must prevail in all cases concerning donations mortis causa. Decedent suffered from senile dementia of mild to moderate degree. Evidence given by other witnesses further shows that the decedent did not possess full mental facilities, but at times the decedent was quite lucid.

The attorney present at the drafting of the October 15, 1969, will testified that the testatrix did indeed possess, in his opinion, the requisite lucidity required to execute a will. It is well established law in this state that a decedent may make a will during a lucid interval after his interdiction. When determining whether the testamentary capacity existed at the time of making a will, one must look to Book 3, Title 2, Chapter 2, of the Civil Code entitled “Of the Capacity Necessary for Disposing and Receiving Donation Inter Vivos or Mor-tis Causas,” and not to the Article dealing with contracting with the interdict. See Heirs of Oncale v. Clement, 411 So.2d 543 (La.App. 1st Cir. 1982). Therefore, while the fact that Mrs. Catanzaro did execute the will after her interdiction is certainly indicative of a possible absence of the lucidity required by a testatrix, standing alone, it is by no means determinative of her lack of testamentary capacity.

In conclusion, we find nothing in the record that would lead this court to believe that the trial judge committed manifest error in his interpretation of the facts, and in the absence of such a determination, we are bound to affirm the trial court ruling. Canter v. Koehring, 283 So.2d 716 (La.1973). Although the opponents of the will were able to paint a picture of an older woman who was no doubt feeble minded, they did not carry their burden of proof in showing that the will was not made during a lucid interval. Because of the opponents’ failure to overcome the strong presumption of sanity we must affirm the lower court’s decision.

AFFIRMED.


author: CIACCIO, Judge. PER CURIAM.

text:
    SUITE 5-A/B PARTNERSHIP An Ordinary Partnership, v. DJF COMPANY and Capital City Leasing Corporation.
    No. 12920.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 15, 1982.
    Rehearing Denied Aug. 19, 1982.

      John A. Stassi, II and Lisa Waggoner Wall, Stassi & Rausch, New Orleans, for plaintiff-appellee.
    Andrew Jack Bennett, Jr., Bennett & McLaughlin, A Law Corp., Baton Rouge, for intervenor-appellant.
    Before KLEES, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment recognizing a lessor’s lien on movables of a third person seized under a writ of fieri facias after the movables had been removed from the leased premises and were stored in a warehouse.

This appeal arises out of a suit by the plaintiff-lessor, Suite 5-A/B Partnership, against the defendant-lessee, Dr. Dimitri J. Filostrat, d/b/a D. J. F. Company, for past due rentals and to accelerate the future rental payments due under a written lease of the premises located at 3715 Prytania Street, Suite No. 503 in New Orleans, Louisiana. The suit also sought recognition of a lessor’s privilege on .certain movables, namely, dental equipment, located on the premises.

The facts and procedural events, which form the basis for this appeal are as follows: On March 1, 1979, Dr. Dimitri J. Filostrat, d/b/a D.J.F. Company, entered into a lease agreement with Suite 5-A/B Partnership, for the lease of Suite 503 of the Prytania Medical Complex located at 3715 Prytania Street. This lease was for a period of 36 months, with a monthly rental of $5,383.81, payable on the first of each month, together with a payment of a percentage of the condominium expense, which averaged $629.07 per month. The defendant defaulted on his obligation by failing to make the rental payments due from March through September, 1979.

On October 9,1979, the plaintiff filed suit for all past due rents and to accelerate the future rental payments due under the lease. The suit also sought to have recognized the “lessor’s privilege on all movable property of the defendant found on the leased premises and not otherwise exempt from seizure.”

The defendant filed an answer admitting all of the allegations of plaintiff’s petition and confessing judgment in favor of plaintiff. On October 30, 1979, a judgment pro confesso was entered, said judgment being amended on March 7,1980 to fully state the defendant’s name. The lessor did not proceed with the enforcement of its judgment but granted a grace period to the defendant-lessee predicated upon the fulfillment of certain conditions. The lessor contends that the lessee breached the agreement and, as a consequence thereof, on May 2, 1980, plaintiff-lessor allegedly requested the issuance of a writ of sequestration for the seizure of “all movables in the leased premises, Suite 503, 3715 Prytania Street, New Orleans, Louisiana.”

On Saturday, May 10, 1970, the defendant, Dr. Filostrat, allegedly removed the movables from the leased premises and had them placed in storage. On May 12, 1980, the plaintiff, upon discovery of the removal, obtained a writ of fieri facias directing the Civil Sheriff to seize “all furniture, fixtures and equipment formerly contained at Suite 503, 3715 Prytania Street, New Orleans, Louisiana, removed by defendant on May 10, 1980 to storage at O.K. Storage and Transfer Co., Inc., 1901 St. Charles Avenue, New Orleans, Louisiana.” The equipment was seized pursuant to the writ.

On May 29, 1980, plaintiff filed a “rule to rank liens” directing Capital City Leasing Corporation, who was claiming ownership of the movables leased to the defendant, and City National Bank of Baton Rouge, as the holder of a chattel mortgage on the movables, to show cause why the judgment of plaintiff should not be recognized as a first and paramount lien on the movable property by reason of plaintiff’s lessor privilege. On June 9, 1980, Capital City Leasing Corporation intervened and filed a “rule to dissolve wrongful seizure”, claiming ownership of the seized dental equipment, asking for judicial recognition of its ownership, declaring invalid the lessor’s privilege asserted by the plaintiff, and asking for the dissolution of the seizure and for damages and attorney’s fees for the wrongful issuance thereof. On June 20, 1980 the district court conducted a hearing on both rules simultaneously, testimony was taken and, on June 24, 1980 judgment was rendered ranking the various liens and dismissing Capital City Leasing’s action for dissolution of the alleged wrongful seizure:

The judgment and reasons for judgment read:

“IT IS ORDERED, ADJUDGED AND DECREED that the liens in these premises are ranked as follows-to-wit.
The lien of Suite 5 A/B Partnership, an ordinary Partnership’s lien is ranked 1st or highest.
The Lien of the City National Bank’s mortgages lien is ranked 2nd.
The claim of Capitol City Leasing Corporation is ranked third.”
REASONS FOR JUDGMENT
“(1) Capitol City Leasing is the owner of the equipment that was on the debtor’s premises and seized.
(2) The Mortgage the bank seeks to have recognized was a revised-or amended mortgage and placed on this equipment-recorded-after the equipment was in the debtor’s premises, therefore the landlord’s lien primes.
(3) The rule to dissolve and for damages for wrongful seizure was admittedly moot with the ranking of liens but if there is any doubt, it is hereby dismissed.”

The intervenor, Capital City Leasing Corporation, appeals suspensively and presents two basic issues for consideration: (1) May a lessor’s lien be perfected by seizure of the movables of a third party after they have been removed from the leased premises? (2) If such a seizure was wrongful is the inter-venor entitled to attorney fees and damages?

OWNERSHIP OF MOVABLES

Plaintiff-Appellee reurges in its brief the claim that Capital City Leasing Corporation is not the owner of the dental equipment nor has its ownership been judicially adjudicated in these proceedings. The issue of ownership was tried and adjudicated in the lower court.

Since no appeal was taken from this adverse judgment, nor was any answer to the appeal filed by plaintiff-appellee, it is precluded from seeking a reversal of this portion of the judgment in these proceedings. C.C.P.Art. 2133. The question of ownership cannot be reopened in this appeal, and the judgment of the lower court decreeing Capital City Leasing Corporation to be the owner of the movables is final.

VALIDITY OF LESSOR’S LIEN & PRIVILEGE

Lessor-Appellee further urges, in the event we hold that Capital City Leasing owns the seized equipment, that the lessor had a right to seize this equipment even after it left the debtor’s premises, claiming the lessor’s lien and privilege was not affected by its removal.

The articles of the Civil Code describing the lessor’s special privilege are:

“Art. 2705. The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the property leased...”
“Art. 2706. This right of pledge includes, not only the effects of the principal lessee or tenant, but those of the under tenant, so far as the latter is indebted to the principal lessee, at the time when the proprietor chooses to exercise his right.”
“Art. 2707. This right of pledge affects, not only the movables of the lessee and underlessee, but also those belonging to third persons, when their goods are contained in the house or store, by their own consent, expressed or implied.”
“Art. 2709. In the exercise of this right, the lessor may seize the objects subject to his privilege before the lessee removes them from the leased premises, or within fifteen days after they have been removed by the lessee without the consent of the lessor, if they continue to be the property of the lessee, and can be identified. .

In his Civil Law Treatise Professor Yian-nopoulas correctly states the law applicable to this appeal when he says:

“According to settled jurisprudence, the lessor’s rights of pledge and privilege on movables belonging to third persons are lost as soon as these things are removed from the premises whether with or without the consent of the lessor.” A. N. Yiannopoulos, 2 La. Civil Law Treatise 320 (1967).

In support of his conclusion, Professor Yiannopoulos cites the cases of Kupperman v. Moore, 185 La. 1000, 171 So. 104 (La., 1936); Merrick, Race & Foster v. LaHache, 27 La.Ann. 87 (La.App., Orleans, 1875); Hughes v. Caruthers, 26 La.Ann. 530 (La. App., Orleans, 1874); Lesseps v. Ritcher, 18 La.Ann. 653 (La.App., Orleans, 1866). We further cite Burn Planting Company, Inc. v. Goldman Landing Company, Inc., 163 La. 720, 112 So. 662 (La.1927) and Hinckley v. Cauley, 17 La.App. 388, 136 So. 126 (2d Cir., 1931).

In the Burn Planting Company, Inc. case, supra, 112 So. at page 663, Justice O’Neill, as the organ of the court, stated:

“It is well settled that a lien, or ‘privilege,’ as it is called in Louisiana, cannot be allowed unless it is expressly and unequivocally granted by statute; and the rule that liens or privileges are held stric-ti juris is particularly applicable when a creditor claims a lien or privilege on property belonging to one who is not the debtor, or liable for the debt.”

The Supreme Court further quoted with approval language contained in the case of Merrick, Race & Foster v. LaHache, supra, wherein the court said:

“The proper inquiry appears to be in this case, are the movables of a third person which have been in the house or store of a lessor, and while there subject to his privilege, to be considered when removed, as being in pari casu with those of a lessee if seized by the lessor within fifteen days of the removal, provided, the property continues to belong to the third person and can be identified? The article 2709 of the Civil Code is express on the subject, that in such a case the movables of a lessee may be seized, but is silent as to whether those of a third person may be seized after removal. The effects of a third person, equally with those of the lessee are, by article 2707, made subject to the lessor’s privilege, when they are by his consent contained in the house or store of the lessor. By analogy, it would seem, the privilege would continue to attach like those of the lessee, and on the same conditions for fifteen days after removal. But by the well-established rule that privileges are strieti juris, we are precluded from assuming that the effects of a third person are affected by the lessor’s privilege after their removal from his house or store. The law declares a privilege in favor of the lessor on the property of third persons, only on the conditions expressed in Article 2707 of the Code, and to those conditions we think the privilege must be restricted.”

Plaintiff-Lessor relies upon the cases of Sliman v. Fish, 177 La. 38, 147 So. 493 (La., 1933), Fertitta Bros. v. Vanchiere, 178 So. 190, (La.App., 1st Cir., 1938) and Ritchie v. White, 11 Mart. (O.S.) 239 (La., 1822) in support of its position. We do not agree that these cases are controlling in this appeal.

The Ritchie case, supra, involved an action by syndics to recover merchandise that insolvents had delivered to other parties. The language indicating that the lessor’s privilege followed property of third parties after its removal from the leased premises was dicta, as the lessor was not a party to those proceedings. Subsequent pronouncements by the Supreme Court of Louisiana in the cases of Kupperman v. Moore, supra, Burn Planting Company, Inc. v. Goldman Landing Company, Inc., supra, and Hughes v. Caruthers, supra, together with the Hinckley v. Cauley case, supra, all specifically held that the lessor’s right of pledge does not cover third person’s property removed from the leased premises before seizure whether or not the seizure was within fifteen days of removal.

All of these cases were subsequent to the Ritchie case and impliedly or expressly overruled the language in the Ritchie case relied upon by appellee.

Appellee urges the validity of the seizure because the defendant-lessee was in possession of the movables at the time of the seizure, since the defendant had the equipment stored in his name at the storage company. This issue was addressed by the Court of Appeal, 2nd Circuit, in the case of Hinckley v. Cauiey, supra, where household effects claimed to be owned by a third party were moved by the lessee from plaintiff’s house to another residence occupied by the defendant-lessee at the time of the seizure. The lessee was in possession of the property both before and at the time of seizure. The court held that the lessor’s lien had been lost as it exists on goods or effects of a third person only so long as such goods or effects are on the leased premises. Hinckley v. Cauley, supra, at 127.

The case of Fertitta Bros. v. Vanchiere, supra, may be distinguished, as in that case the third party owners removed the property from the premises by subterfuge and misrepresentation practiced upon both the lessor and lessee. Plaintiff-lessors alleged that the third party owners had removed the Victrola from the building without their consent and without the consent of the lessee. The court held that the third party owner had been guilty of subterfuge in leading the lessee to believe that they had obtained the prior consent of the lessor for the removal of the Victrola and that to allow this action to defeat the lessor’s lien would give encouragement to fraud and deception. No fraud, deception, or conspiracy is alleged in this case by plaintiff-appel-lee, nor may fraud be presumed in the absence of specific allegations and proof thereof.

Finally, plaintiff-appellee relies on the case of Siiman v. Fish, supra, contending that plaintiff-appellee’s right to the equipment was perfected at the time the equipment was located on the leased premises and, therefore, defendant-lessee had no right or authority to remove the equipment without lessor’s consent. The Siiman case recognized the right of a lessor to obtain a writ of provisional seizure whether or not a specific plea for the issuance of the writ was contained in the petition. The Siiman case did not deal with property of third persons seized after removal from the leased premises but concerned property of the lessee, and is not controlling in this case.

Plaintiff-appellee urges that it had exercised every right it had to enforce its privilege against the movables before their unauthorized removal from the leased premises. This is clearly erroneous as, apparently relying upon the anticipated payment of all past due rentals during the grace period granted to lessee, lessor refrained from exercising its right to seize the movables located on the leased premises by writ of sequestration or writ of fieri facias. (Emphasis supplied). Absent a legal seizure, the judgment obtained by plaintiff-appellee in no way restrained the lessee or the third party owner from removing the dental equipment from the leased premises.

Plaintiff-appellee had notice that Capital City Leasing was claiming ownership of the property as it had on two occasions sought waivers of the lessor’s lien, both of which requests lessor declined to grant. The specific language of Article 2709 of the Civil Code contemplates that property subject to the lessor’s lien may be removed without the lessor’s consent and the lessor is given the remedy to proceed by sequestration, without bond, to prevent the removal from taking place. This action plaintiff-appellee declined to take for approximately six months after judgment had been rendered in these proceedings.

Plaintiff-appellee lost its right to seize the dental equipment owned by Capital City Leasing, Inc. once it was removed from the leased premises. Accordingly, the trial court erred in its finding that a lessor’s privilege existed against the property of intervenor. The trial court also erred in its ranking of privileges as no lessor’s privilege existed to be ranked with regard to the property owned by intervenor, Capital City Leasing, Ine. Since these findings of the lower court are clearly wrong, in light of the facts of the case and the applicable law, they must be reversed. Canter v. Koehring, 283 So.2d 716 (La., 1973); Arceneaux v. Dominigue, 365 So.2d 1330 (La., 1979).

DAMAGES

Capital City Leasing Corporation argues that it should be awarded attorney fees and damages for the dissolution of a wrongful seizure.

The courts are authorized to award damages for a wrongful seizure pursuant to a writ of fieri facias. Moses v. American Security Bank of Ville Platt, 222 So.2d 899 (La.App., 3rd Cir., 1969). The aggrieved party may recover not only special damages but also general damages for the wrongful seizure. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La., 1976); Moses v. American Security Bank of Ville Platt, supra.

Attorney’s fees, however, are only to be awarded in those instances in which they are specifically prescribed by statute. General Motors Acceptance Corp. v. Meyers, 385 So.2d 245 (La., 1980). Statutory provisions permit the award of attorney’s fees for the dissolution of improper seizures under writs of attachment and sequestration; for improvidently issued restraining orders and preliminary injunctions, and, in conjunction with the restraint of illegal seizure resulting from a writ of fieri facias. (Emphasis Supplied). C.C.P.Arts. 3506, 3608, 2298. There are, however, no provisions in law for the recovery of attorney’s fees in conjunction with a rule to dissolve a wrongful seizure of property under a writ of fieri facias. (Emphasis Supplied).

The record shows that on April 10, 1980, an agreement of lease was entered into by Capital City Leasing Corporation and Pan American Dental Services, Inc., for the lease of the dental equipment which is the subject of this litigation. The lease was for sixty (60) months at a total rental of $58,-346.55. Intervenor’s property has been held under seizure in excess of one year and it has been deprived of its possession and the revenues that would flow therefrom.

In the rule to dissolve the wrongful seizure, intervenor itemized its damages as follows:

Interference with relational interests between Capitol City Leasing Corporation and its lessee, Pan American Dental
Services, Inc. $1,000.00
Damages caused by
wrongful seizure 1.500.00
Total $2,500.00

We conclude that intervenor is entitled to be awarded as damages caused by the wrongful seizure the sum of $1,500.00.

For the reasons assigned, the judgment in rule of the district court is reversed insofar as it decrees that plaintiff-appellee holds a lessor’s lien on the movable property of the intervenor and dismisses the action of the intervenor to dissolve the wrongful seizure. The judgment of the district court is amended to award $1,500.00 damages to the intervenor-appellant for wrongful seizure. In all other respects the judgment is affirmed. All costs are to be paid by the plaintiff-appellee.

REVERSED IN PART, AFFIRMED IN PART, AND AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing, appel-lee suggests that the award of $1,500 as damages for wrongful seizure is inappropriate, because of the absence of proof of these damages.

The award of damages in these proceedings is inappropriate, as damages for the wrongful seizure under a writ of fieri facias cannot be granted in summary proceedings. C.C.P. Arts. 2591-2592. Major v. Hall, 262 La. 243, 263 So.2d 22 (1972); Himbola Man- or Apartments v. Allen, 315 So.2d 790 (La. App., 3rd Cir., 1975). Although our review of the lease instrument filed in the record furnished prima facie evidence of damages, and, thus the basis for our award, the claim for damages must be pursued via ordinaria.

Accordingly, we amend our earlier judgment to delete the award for damages for wrongful seizure, reserving to the appellant the right to seek these damages via ordina-ria.

Application for rehearing denied.

      . The appellant was not a party to this suit, and there is no evidence in the record that the appellant had knowledge of this action.

      . The duration of the grace period and the terms of the agreement are not reflected in the record.

      .Although plaintiff states that a writ of sequestration was issued to the Civil Sheriff on May 2, 1980 no evidence of the request or of the issuance of the writ is contained in the record.