text:
    Pamela Jane HARPER, Plaintiff-Appellant, v. Kirk Anthony BOUDREAUX, Defendant-Appellee.
    No. 8848.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Cole & Guidry, Robert L. Cole, Lafayette, for plaintiff-appellant.
    Ralph K. Lee, Jr., New Iberia, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a custody matter. On November 19, 1975, Pamela Harper was granted a separation from bed and board from her husband, Kirk A. Boudreaux. The judgment awarded custody of the parties’ minor child, Shaun, to Harper with visitation rights in favor of Boudreaux. On September 22, 1977, a judgment of divorce was granted and custody of the minor child was continued in Harper with fixed visitation rights being granted to Boudreaux.

On July 17, 1980, Boudreaux filed a rule to change custody, and in the alternative, he sought amendment of the previously fixed visitation rights. The basis for the aforesaid rule was that Harper had allowed the child to live with her parents and to attend school in Many, Louisiana, while Harper resided approximately 45 minutes away in Milam, Texas. In a judgment dated November 18,1980, the trial court denied Boudreaux’s demand for a change of custody. However, the court at that time did set the following visitation rights in favor of Boudreaux:

“Two (2) months each summer during the months of June and July; alternate Christmas and Thanksgiving holidays beginning with Christmas of 1980, December 24 to December 30, 1980, and; during the remaining months of each year, one weekend each month to begin on Friday evenings at 4:30 p. m. and ending Sunday evenings at 4:30 p. m., the first such visitation to be Friday, November 14, 1980.”

On March 13, 1981, Boudreaux filed the instant rule for change of custody, and additionally, petitioned the court to hold Harper in contempt for the denial of his visitation rights as previously fixed. On April 7, 1981, Harper answered Boudreaux’s rule and filed a cross-rule requesting that the trial court terminate Boudreaux’s visitation rights on the grounds that Boudreaux had abused the parties’ minor child during prior visitations and had used marijuana and other drugs in the presence of the minor child.

After hearing extensive testimony and reviewing a report prepared by a psychologist who interviewed the parties, the district court concluded that the custody of the parties’ minor son should be maintained with his mother, Pamela Harper. The trial court also concluded that the court’s prior order setting forth the visitation rights of Boudreaux should be maintained with the modification that for a one year period, Boudreaux’s visitations with his minor son should be supervised by the child’s paternal grandmother, Mrs. Leonard Kern. Presumably, Boudreaux’s motion for contempt was denied as the judgment rendered is silent in this regard. Harper appeals from the decision of the trial court. Boudreaux has neither answered the appeal nor appealed from the aforesaid judgment.

The sole issue on appeal is whether or not it is in the best interest of the parties’ minor child to continue visitation rights in favor of the child’s father as ordered by the trial court.

At trial, Harper testified generally as follows: The dispute regarding the custody of the parties’ minor son, Shaun, began subsequent to the filing by Boudreaux of his initial rule to change custody. Thereafter, Shaun began to refuse to visit with his father and became very upset when he learned that his father intended to pick him up and take him to his home in New Iberia, Louisiana. The child repeatedly informed his mother that he was afraid that his father would “trick him”. Harper informed Boudreaux that she would not force the child to go with him on such visits. Bou-dreaux’s attempts at exercising his visitation rights often ended in profane verbal exchanges between the parties. Various threats of physical harm were exchanged between G. E. Harper, plaintiff’s father, and Boudreaux. Such threats culminated in a physical confrontation between Mr. Harper and Boudreaux outside of the Sabine County, Texas courthouse in March of 1981. Other incidents occurred during the young child’s visitations with his father. One such incident involved Boudreaux’s girlfriend, who zipped the child into a suitcase for a few seconds as punishment for misbehavior. Boudreaux was arrested and convicted in Texas for possession of marijuana and the illegal possession of a firearm shortly after attempting to pick the child up for a visit. Boudreaux’s past involvement with drugs and firearms as well as his prior mistreatment of the parties’ minor child convinces Harper that to continue visitation rights in favor of Boudreaux would be detrimental to Shaun.

Boudreaux admitted his conviction for possession of marijuana and the illegal possession of a firearm, but testified that the aforesaid conviction occurred three to four years prior to the instant hearing. Although conceding his past use of marijuana, Boudreaux stated that he no longer uses illicit drugs of any type. Boudreaux testified extensively regarding his thwarted attempts at exercising his visitation rights as ordered by the trial court. In this regard, he stated that when he attempted to exercise such rights, the young boy appeared to be afraid of him and repeatedly referred to his fear of being “tricked” by his father. Boudreaux testified that Harper refused to aid him in allaying the boy’s fears and refused to encourage the child to develop and establish a positive relationship with him. Boudreaux admitted that his girlfriend had zipped the child into a suitcase for a few seconds because the child had similarly mistreated some young puppies, however, Boudreaux stated that he does not condone such punishment. Boudreaux expressed a sincere desire to establish a meaningful relationship with his son via regular visitations.

The young child, Shaun, was briefly questioned by the trial judge in chambers during the hearing. His testimony is somewhat confused, however, he repeatedly stated that he did not like to visit his father because “they caught him with all those guns and dope and I don’t want to be around guns and dope, not that stuff.” The child also indicated that he wanted to remain with his mother and that he had mixed feelings regarding visiting his father.

In September, 1981, Dr. Kenneth R. Bouillion, a clinical psychologist, interviewed and performed psychological testing with the parties and their minor son, Shaun. After such interviews and testing, Dr. Bouillion concluded that Shaun’s statements and fantasies about dope, guns, etc. were fostered by his mother and his maternal grandparents to increase the child’s fear of his father. Dr. Bouillion recommended that Shaun resume visits with his father under controlled circumstances. He suggested that such visits occur outside of the presence of Shaun’s mother or any of her family members. In addition, Dr. Bouillion recommended to the court that the child’s visitations with his father be conducted in a setting in which some third party is present for supervision purposes. Dr. Bouillion indicates in his report that under such circumstances there exists the possibility that Shaun can resume a more normal relationship with his father.

Harper contends that the trial court erred in concluding that it was in the best interest of the parties’ minor child to continue visitation rights in favor of Boudreaux. We disagree.

The record clearly reflects the extreme diligence of the trial court in its attempt to determine that action which would be in the best interest of the minor child, Shaun Bou-dreaux. In so doing, the court noted that in its interview with the minor child, the child appeared to be well-coached in his answers. Our review of the record reflects that the child has obviously been adversely influenced by his mother and her parents in regard to his attitude towards his father. The aforesaid parties have openly berated Boudreaux in front of the child and have instigated profane verbal exchanges with Boudreaux in the child’s presence. During the trial court’s brief interview with Shaun, the young boy professed to have knowledge of his father’s possession of drugs when such knowledge on the part of the child was impossible. In addition, we are somewhat perplexed, as was the trial court, as to why Shaun did not appear to have reservations about visiting his father until after the initial change of custody suit was filed. As noted by the trial court, the child’s stories regarding incidents which allegedly occurred while he was visiting his father are somewhat incredible. The child’s statements clearly indicate that he has been significantly influenced by Ms. Harper and her parents in his negative relationship with his father.

Ms. Harper avers that Boudreaux does not sincerely care about the parties’ child. In support of this contention, Harper argues that Boudreaux has made no attempt to visit or communicate with the child since March of 1981. However, as the trial judge noted while making his initial observations regarding the matter, the record clearly indicates that Boudreaux was justified in assuming that any such effort would be fruitless in view of the extremely hostile climate created by Harper and her parents.

Finally, Harper argues that Boudreaux’s involvement with marijuana, particularly, smoking the drug in the presence of the child, is more than sufficient grounds for the termination of Boudreaux’s visitation rights.

In Reavill v. Reavill, 370 So.2d 175 (La.App. 3rd Cir. 1979), our court stated:

“It is well settled that the paramount consideration in determining visitation rights following a divorce is the welfare of the child. Johnson v. Johnson, 357 So.2d 69 (La.App. 4 Cir. 1978). As such, the trial court is vested with a broad discretion in its award of visitation privileges to a parent. Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973). One of the questions in considering an award of visitation rights is whether the emotional stability of the child will be affected. In making such determination, much discretion is afforded the trial court in its structuring of the times and conditions of visitation, and the general rule is that a decision will not be disturbed unless there has been evidence of an abuse of the trial court’s discretion. Pate v. Pate, 348 So.2d 1338 (La.App. 3 Cir. 1977).”

In the present case, the trial judge stated in his written reasons for judgment, that it was his belief that the problems which exist between the child and his father are due largely to the animosity which exists between the mother and her parents on the one hand and the father on the other. The trial judge noted that Ms. Harper’s testimony clearly indicates that she feels no obligation to make any effort in changing the child’s present negative view and attitude towards his father to a more positive one. The trial court concluded that it is in the best interest of the minor child to permit his father to visit with him and to provide Boudreaux with the opportunity to re-establish a positive relationship with his son.

Our review of the record indicates that the trial court adequately and reasonably weighed the pros and cons of continuing Boudreaux’s visitation rights. In this regard, the trial court took particular note of Boudreaux’s prior use of illicit drugs as well as his past criminal record. In consideration of Boudreaux’s past activities, the trial court deemed it essential that a third person be involved in the visitation process “to reassure the child and to be certain that the child is handled with the greatest of tenderness and care.” Thus, the trial court ordered that the child’s paternal grandmother, Mrs. Leonard Kern, should accompany Boudreaux during all of his visitations with his son.

We conclude that the impact of the evidence introduced is that the best interest of the child dictates that Boudreaux be allowed to visit with his son and attempt to re-establish a positive relationship with him. We are convinced by the record that the trial court adequately considered all of the evidence and testimony, and thereafter, provided for a reasonable resolution to the present dispute. Thus, we discern no error on the part of the trial court in continuing visitation rights as provided for in the trial court’s order dated November 18,1980, with the modification that for a one year period, Boudreaux’s visitations with his son shall be supervised by the child’s paternal grandmother.

In the alternative, Harper contends that the trial judge erred by refusing to substantially limit Boudreaux’s visitation rights and by further refusing to provide that the supervision of such visitations shall be the responsibility of some objective third party, specifically, a local probation officer or employee of the Division of Family Services. In this regard, Harper argues that the record reflects that Mrs. Kern is unsuitable to monitor such visitations. Harper avers that Mrs. Kern was unaware of her son’s past drug problems, therefore, she would, in all probability, be oblivious of any future drug problem. In addition, Harper contends that Mrs. Kern has been guilty of mistreatment of the minor child in the past as evidenced by the child’s own statements. We do not find these contentions to be supported by the record. Mrs. Kern’s testimony indicates a genuine concern for the welfare of her grandchild. Her testimony reflects her strong disapproval of drug use and the record is devoid of any persuasive evidence regarding her alleged mistreatment of the young boy. After carefully reviewing the record, we can find no evidence that the trial court manifestly erred in concluding that supervision by the young boy’s paternal grandmother of the visitations between him and his father would sufficiently safeguard the physical, moral, and emotional welfare of the minor child. See Gowins v. Gowins, 391 So.2d 48 (La.App. 3rd Cir. 1980); Reavill v. Reavill, supra.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appellant, Pamela Harper.

AFFIRMED.

      . The report of Dr. Kenneth R. Bouillion was admitted in evidence pursuant to stipulation of the parties.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Herbert MOUTON (Martin) et al., Plaintiffs-Appellants, v. Peter VALLOT, Defendant-Appellee.
    No. 8850.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Peter C. Piccione, Sr., Lafayette, for plaintiff s-appellants.
    James E. Fontenot, Abbeville, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

The issues in this appeal arise out of a partition suit filed by Herbert Mouton, a/k/a Martin, and others referred to herein as “the Moutons”. The Moutons are listed in footnote 1 to this opinion.

Petitioners bring this suit against Peter Vallot and allege that they are owners in common with him of three tracts of land of 7.45 acres (tract one), 5 acres (tract two), and 15 acres (tract three).

Defendant Peter Vallot first filed an answer and thereafter his widow, Melder Taylor, was substituted in his place as defendant in the capacity of administratrix of the Succession of Peter Vallot, Sr.

The issues in this appeal involve only tracts one and two, the 7.45 acre tract and the 5 acre tract. The 15 acre tract is not involved. On behalf of the succession Meld-er Taylor filed an exception of no right of action grounded on the allegation that certain plaintiffs or their ancestors in title had sold all of their rights, title and interest in tracts one and two. Melder Taylor also filed an exception of res judicata based on allegations that there had been a previous partition by licitation of tracts one and two in a suit filed on November 23, 1954, numbered 18,831 on the docket of the Fifteenth District Court for Vermilion Parish.

The primary issue, however, stems from a supplemental and amending petition filed in the trial court on the day the exceptions referred to were heard. This date was August 6, 1981. In the amended pleading the Moutons sought additional relief in the form of an action of nullity. They alleged that none of the plaintiffs were ever served or notified in any way of the sheriff’s sale which resulted from the prior partition suit. In addition to demanding a partition the Moutons prayed that the judgment and sale in the previous partition suit be voided, nullified and set aside and that petitioner’s title to tracts one and two be confirmed.

Although we have not been able to find it in the record, we are advised by counsel through their briefs and through a minute entry (reasons for judgment) of the trial court dated October 7, 1981, that the action of nullity was met by an exception of prescription of two and five years by the defendant succession. As shown by the trial court’s reasons for judgment, the trial court ruled in favor of defendant-appellee and held that any action of nullity as to the partition judgment in suit number 18,831 had prescribed. The trial court’s minute entry reads as follows:

“MINUTE ENTRY
“This matter was before the Court on August 6, 1981, on an exception of prescription entered by counsel for defendant opposing the plaintiffs’ collateral attack of a judgment for partition by licitation and the Sheriff’s sale which occurred on March 5, 1955.
“After considering the evidence presented and the briefs submitted by counsel, the Court sustained the exception of prescription as to Tracts I and II in the plaintiff’s petition. The Court finds that the applicable prescriptive periods for attacking the validity of a public sale pursuant to a partition are two and five years as stated in Article 3543 of the Louisiana Civil Code. Plaintiffs filed this suit on April 25, 1975, which was more than twenty (20) years after the Sheriff’s sale.
“The Court further finds the partition judgment of May, 1955 entered in Suit Number 18831, Peter Vallot vs. Lawrence Mouton, et al, not subject to annulment for vice of form or substance. The absentee defendants in that suit were served with process through the Court-appointed attorneys as required by law. The fact that all but one of the attorneys failed to answer opposing the partition does not constitute fraud or ill practice in this case. More importantly, if the attorneys failed to perform any duty imposed on them, such failure would not affect the validity of the judicial sale. See LSA-C.C.P. Article 5098 and Demery vs. Nelken, 385 So.2d 531 (La.App. 3rd Cir. 1980).
“Costs of this matter to be borne by plaintiffs.”

Based on the above minute entry the trial court signed a judgment sustaining the exceptions of res judicata and no right of action filed on behalf of the defendant succession insofar as they applied to tracts one and two. In their briefs, counsel do not actually address any issues relative to the exceptions of res judicata and no right of action. Rather, all argument is devoted to the question of prescription of the action of nullity and the question of whether the former judgment is null because of a defective service or process or an invalid judgment of default or because of fraud or ill practices. Therefore, we shall treat this present suit as an action to nullify the former judgment of partition.

The Moutons contend that the previous judgment is null because of improper service of process upon the defendants and because the judgment of default rendered against some of the absentee defendants is invalid. Specifically, the Moutons claim that the curators did not notify the absentee defendants of the suit nor did most of them file answers to the suit or appear in court or at the sheriff’s sale on behalf of the defendants. The Moutons also allege that these actions by the curators constitute “fraud or ill practices”. The Moutons further contend that there is nothing in the record of the suit for partition to prove that notice of the suit was given as required by the procedural laws in effect at the time of the suit.

LSA-C.C.P. art. 2002 provides in pertinent part:

“A final judgment shall be annulled if it is rendered:
* * * * * *
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;
* * * * * *
Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

LSA-C.C.P. art. 2004 states:

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

Article 2002 lists what are generally termed “absolute nullities”, while Article 2004 covers the so-called “relative nullities”.

The significance of the difference between absolute nullities (vices of form) and relative nullities (vices of substance) is discussed in LeGlue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3rd Cir. 1980), as follows:

“A judgment is an absolute nullity when there exists a vice of form. LSA-C.C.P. Article 2002, supra and the Official Comment to that article. A person with interest may show such nullity in collateral proceedings at any time and before any court, for absolutely null judgments are not subject to the venue and the delay requirements of the action of nullity. Nethken v. Nethken, 307 So.2d 563 (La.1975); Tannehill v. Tannehill, 226 So.2d 185 (La.App. 3 Cir. 1969), cert. denied [254 La. 930,] 228 So.2d 485 (1969); Garnett v. Ancar, 203 So.2d 812 (La.App. 4 Cir. 1967); Franz v. Franz, 315 So.2d 79 (La.App. 4 Cir. 1975); American Bank & Trust Company v. Marbane Investments, Inc., 337 So.2d 1209 (La.App. 3 Cir. 1976). A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Nethken v. Nethken, supra.
“On the other hand, “a final judgment obtained by fraud or ill practices may be annulled . ..”. LSA-C.C.P. Article 2004. Such a judgment is not an absolute nullity; the nullity must be properly decreed within the time prescribed. The established jurisprudence of this State requires that such grounds be asserted in a direct action and not raised collaterally. Nethken v. Nethken, supra; Pontchartrain Park Homes, Inc. v. Sewerage and Water Board of New Orleans [246 La. 893], 168 So.2d 595 (1964). What is meant by a “direct action” is that the party praying for the nullity of a judgment must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits. LSA-C.C.P. Article 1201, 2001-2006; Nethken v. Nethken, supra; Garnett v. Ancar, supra.

It is not particularly significant in the instant case whether the judgment of partition was attacked collaterally or directly since evidence on the issue has already been presented at trial in the court of non-waiva-ble venue for a direct attack. See LSA-C. C.P. arts. 44 and 2006; and Franz v. Franz, 315 So.2d 79 (La.App. 4th Cir. 1975).

Thus, it appears that the Moutons are arguing that the lack of proper service of process or a valid judgment of default renders the judgment of partition absolutely null, while the other irregularities complained of render the judgment relatively null. Specifically, the “fraud or ill practices” which the Moutons complain of that would render the judgment relatively null under LSA-C.C.P. art. 2004 are the failure of the attorneys representing the absentee co-owners to contact them or to appear on their behalf to present defenses to the judgment of partition or to the sale. Also in the category of relative nullities is the Moutons’ allegation that copies of the petition and citation are not shown by the record to have been affixed to the courthouse door as required at the time of the suit.

Actions to set aside judgments of partition or sheriffs’ sales of property are subject to the prescriptive periods found in LSA-C.C. arts. 3542 and 3543. Furthermore, LSA-C.C.P. art. 5098 states:

“The failure of an attorney appointed by the court to represent an unrepresented party to perform any duty imposed upon him by, or the violation by any person of, the provisions of Articles 5092 through 5096 shall not affect the validity of any proceeding, trial, order, judgment, seizure, or judicial sale of any property in the action or proceeding, or in connection therewith.
For a wilful violation of any provision of Articles 5092 through 5096 an attorney at law subjects himself to punishment for contempt of court, and such further disciplinary action as is provided by law.”

As can be seen, the action to nullify the sale because of the alleged failure of the attorneys appointed by the court to perform their duties is specifically prohibited by LSA-C.C.P. art. 5098. Also, the attempt to nullify the sale because of the alleged failure to provide proper notice is prescribed under LSA-C.C. art. 3543. The action to nullify the partition for all relative nullities has prescribed under LSA-C.C. art. 3543. See Demery v. Nelken, 385 So.2d 531 (La.App. 3rd Cir. 1980).

The language of LSA-C.C. art. 3542 would seem to apply also to absolute nullities, although there is authority to the contrary. See Whitten v. Whitten, 303 So.2d 238 (La.App. 2nd Cir. 1974). However, we find it unnecessary to determine whether the five year prescriptive period for actions to rescind partitions under LSA-C.C. art. 3542 applies to absolute nullities as we find no evidence of the absolute nullities complained of in this case.

The absolute nullities of which the Mou-tons complain are the allegedly inadequate service of process and the allegedly improper default judgment taken against the plaintiffs in the suit for partition. We find no flaws in the procedure followed for service of process by the trial court. The procedure in 1955 (the time of the judgment sought to be annulled) for partition and sale of property owned in indivisión when one or more of the co-owners are absentees is found in Sections 4971 through 4974 of Title 13 of the Revised Statutes of 1950. These sections were repealed by Acts 1960, No. 32, § 2, effective January 1, 1961.

The record of the partition suit indicates that seven attorneys were appointed as curators for the seven absent co-owners and that process was properly served on all the curators. The curators all signed a form indicating acceptance of the proces verbal of the partition. The procedure for judgment by default was also properly followed.

The record contains the answer to the suit and notice of suit mailed to the absentee co-owners filed by only one of the curators. However, a curator is not absolutely required to contest the suit or interpose any defense unless he is aware of same. Demery v. Nelken, supra. Also, as to the apparent failure of the other six curators to contest the suit or notify the absentees of the suit, LSA-C.C.P. art. 5098 does not allow these failures to affect the validity of “any proceeding, trial, order, judgment, seizure, or judicial sale of any property ... ”.

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

AFFIRMED.

      . Herbert Mouton, a/k/a Martin, Morris Mouton, a/k/a Martin, Howard Joseph Mouton, a/k/a Martin, Clarence Joseph Mouton, a/k/a Martin, Vilery Mouton, Gladys Mouton Williams, Eran Mouton Frank, Livingston Mouton, Joseph Junius Landry and Mildred Landry Rose, all of whom allege they reside in Port Arthur, Texas, and Mary Helen Landry Baker who alleges that she resides in Oakland, California.

      . Paragraph II of plaintiffs’ petition reads as follows:
      II.
      “Petitioners and the defendant herein are owners in common of various undivided interests in the following described immovable properties situated in Vermilion Parish, Louisiana:
      1) — A certain tract of land lying and being situated in the Parish of Vermilion, State of Louisiana, being situated in Lot No. Seven (7) of the Partition in the Succession of Isaac Taylor, and containing Seven and 45/100 (7.45) acres more or less, being the same property acquired by Eraste Mouton by deed recorded in Volume 58 of Conveyances at page 311, under Entry No. 2885, Records of Vermilion Parish, Louisiana.
      2) — A certain tract or parcel of land lying and being situated in the East Side of Bayou Vermilion, in Grosse Isle described as Lot No. 8 of the Act of Partition of the Estate of Isaac Taylor and acquired by Joseph Taylor, containing five (5) acres of land. Being the same property acquired by Eraste Mouton by deed recorded in Volume 64, of Conveyances, at page 43 under entry No. 30301, Records of Vermilion Parish, Louisiana.
      3) — A certain tract of land containing 15 acres more or less, and located in the Northeast quarter Section 21, Township 12 South, Range 4 East, in Vermilion Parish, Louisiana, being the same property acquired by Eraste Mouton under date of January 6, 1920, as per deed recorded in Volume 69, at page 219, under Entry No. 33275, Records of Vermilion Parish, Louisiana.”

      . LSA-C.C.F. art. 2003 states:
      “A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”

      . LSA-C.C. art. 3542 states:
      “The following actions are prescribed by five years:
      That for the nullity or rescission of testaments or other acts.
      That for the reduction of excessive donations.
      That for the rescission of partitions and guarantee of the portions.
      This prescription only commences against minors after their majority.”

      . LSA-C.C. art. 3543 states:
      “All informalities of legal procedure connected with or growing out of any sale at public auction or at private sale of real or personal property made by any sheriff of the Parishes of this State, licensed auctioneer, or other persons authorized by an order of the courts of this State, to sell at public auction or at private sale, shall be prescribed against by those claiming under such sale after the lapse of two years from the time of making said sale, except where minors or interdicted persons were owners or part owners at the time of making it, and in the event of such ownership or part ownership by said minors or interdicted persons, the prescription thereon shall accrue after five years from the date of public adjudication or private sale thereof.”

      . The text of R.S. 13:4971 — 4974 before being repealed was as follows:
      PART X. PARTITION
      “§ 4971. Partition by Iicitation; co-owners absent and unrepresented, residence unknown, etc.
      Whenever any plaintiff shall own an undivided interest in real property situated in the state and shall be unwilling to continue to own the same in indivisión, and when a record owner or owners of any interest or interests in the property shall be absent from and not represented in the State of Louisiana, or his or their residences shall be unknown to the plaintiff and have not been ascertained although the plaintiff declares under oath that he has made diligent effort to ascertain same, or he or they shall be dead and the party desiring the partition shall not know who are the heirs of any such decedent, or when the party desiring the partition shall not know whether the record co-owner is or is not dead, the plaintiff co-owner being unwilling to remain in indivisión may obtain a partition by Iicitation of the property in question regardless of its divisibility. Service on the absent unlocated, or unknown defendant or defendants, may be obtained by service on an attorney at law appointed to defend the suit for such defendant or defendants and by affixing copies of the petition and citation on the door of the room where the court in which the suit shall be pending is held, or on a bulletin board located near the entrance to the said court room.
      (Source: Acts 1928, No. 96, § 1.)
      “§ 4972. Same; petition; service; force of judgment
      The party or parties who are unwilling to remain in indivisión shall file a petition in the district court of the parish having jurisdiction of the real property in question and make it appear by affidavit that the residence of one or more of the parties who appears or appear of record as co-owner is out of the state or is unknown to plaintiff and has not been ascertained although diligent effort has been made by the petitioner, and that the record co-owner has no representative of record in the state, or that the record co-owner is dead and that the petitioner does not know who are his legal heirs, or that petitioner does not know in spite of making diligent efforts whether or not the record co-owner is dead. The court shall appoint an attorney at law to defend the suit on behalf of the record co-owner or his heirs and citation shall be addressed to the record co-owner or his heirs through the attorney, and copies of the petition and citation shall be affixed to the door of the room where the court in which the suit shall be pending is held, or on a bulletin board located near the entrance to the court room, and a judgment of partition rendered against such attorney at law so appointed shall have the same force and effect against the absent, unlocated or unknown record co-owner or co-owners or their heirs as if rendered against him or them in person.
      (Source: Acts 1928, No. 96, § 2.)
      “§ 4973. Same; oath and affidavit of plaintiff
      The plaintiff availing himself of this remedy must as an evidence of his good faith also make oath and affidavit that the absent or unlocated co-owner of record has not paid the taxes on his interest in the property or, to the knowledge of the affiant, exercised any acts of ownership, during a period of ten years prior to the filing of the suit.
      (Source: Acts 1928, No. 96, § 3.)
      “§ 4974. Same; sale of property
      The property involved in such a suit shall be ordered sold by the sheriff of the parish in which it is situated as in ordinary partitions by licitation and the portion of the proceeds accruing to the absent or unknown owner or owners shall be paid into the hands of the treasurer of the state, who shall deliver to the sheriff duplicate receipts making mention of the sum received and the name of the absent or unlocated co-owner on whose account it has been paid. The funds shall remain in the hands of the treasurer of the state until the person or persons entitled thereto shall cause his quality to be recognized before the judge of the court which decreed the partition and after having cited an attorney appointed by the court to represent absent owner or heirs, all of the proceedings to follow the method pointed out with funds of vacant successions which have been paid into the state treasury.
      (Source: Acts 1928, No. 96, § 4.)”


author: LABORDE, Judge.

text:
    Marion Overton WHITE, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER CO., INC. and Mury International, Inc., Defendants-Appellees.
    No. 8854.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    White & Pitre, Joshua Pitre, Opelousas, for plaintiff-appellant.
    Brame, Bergstedt & Brame, Frank M. Brame, Lake Charles, Bernard & Angelle, Randy Angelle, Lafayette, for defendants-appellees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a redhibition suit involving the sale of a tractor. Marion Overton White filed this suit against International Harvester Company, Inc. (International Harvester) and Mury International, Inc., (Mury) for rescission of the sale to him of a 1974 Model 1466 International Harvester Company tractor. The tractor was manufactured by International Harvester Company, Inc. and sold by Pee Wee International, Inc., subsequently renamed as Mury International, Inc. Both defendants filed peremptory exceptions of prescription. The trial court originally sustained Mury’s exception and ordered plaintiff’s suit against it dismissed. The ruling as to Mury has not been appealed from and is now final. As to International Harvester’s exception of prescription, the trial court originally denied it. International Harvester moved for a new trial limited to re-argument only, following which the trial court reversed its original ruling, sustained International Harvester’s exception and ordered plaintiff’s suit dismissed. Plaintiff appealed. We affirm.

The issue on appeal is whether plaintiff’s redhibition action against International Harvester is prescribed. Agreeing with the trial court, we hold that it is.

The invoice for the sale of the tractor to plaintiff is dated October 30,1974, however, the tractor was not delivered until January, 1975. Plaintiff alleges numerous mechanical defects, the most important of which involved its hydraulic system. These mechanical problems manifested themselves during the farming seasons of 1975, 1976 and 1977. Several attempts to repair the tractor were made by local International Harvester dealers. James H. West, an International Harvester field representative, worked with the local dealers in an effort to correct the mechanical problems. Not satisfied, plaintiff filed this suit August 24, 1977.

The prescriptive period for a redhibition action is set forth in Civil Code Article 2534 which provides in pertinent part:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.”

However, it is well settled in our jurisprudence that where the seller attempts to remedy a defect in the object sold, the one year prescription in bringing the redhibi-tory action begins to run only from the time the seller abandons his attempt to repair the defect. Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3rd Cir. 1972); Brown v. Mid City Motors, Inc., 248 So.2d 27 (La.App. 1st Cir. 1971). It is also settled that where the seller assures the buyer that repairs will be made, the one year prescription period commences only from the date of the last promise of a vendor or manufacturer to remedy or repair. Bison v. La Hood, 390 So.2d 920 (La.App. 2nd Cir. 1980).

Applying these principles to the instant case, the primary issues are what is the date of last repairs authorized by International Harvester and whether International Harvester made any commitment to plaintiff to repair or put the tractor in working order subsequent to this date of last repair.

International Harvester’s evidence reflects that the last repairs were made on August 15, 1976, and that International Harvester made no commitments thereafter to repair the tractor.

James H. West, Technical Service Manager of International Harvester, was called under cross-examination by plaintiff. Mr. West referred to notes and records to help identify his activities and their dates in this case. He testified that plaintiff informed him his tractor had not been satisfactorily repaired under warranty and asked him to investigate the failures. Mr. West inspected the tractor in May of 1976 and again in July of 1976 and authorized repairs to plaintiff’s tractor. These repairs were made by a local dealer and paid for by International Harvester. Mr. West was next contacted by plaintiff in July of 1976 and on July 15, 1976, he met with plaintiff, plaintiff’s farm manager and the son of his farm manager. On the date of the meeting, the tractor had been disassembled and Mr. West investigated the failure, ascertained the problem and authorized the necessary repairs. The job was completed and the tractor returned on August 15, 1976. Mr. West testified that since August 15,1976, plaintiff has not contacted him and he assumed the mechanical problems were corrected leaving plaintiff satisfied. Mr. West further testified that to the best of his knowledge, subsequent to August 15, 1976, International Harvester did not work on the tractor, make any commitment to plaintiff to repair his tractor, or attempt to repair it.

In contrast to Mr. West’s testimony establishing August 15, 1976, as the date of last repair and that thereafter International Harvester made no further commitment to repair the tractor, plaintiff’s testimony at the trial of the exception appears vague and uncertain. He recalls meeting with Mr. West and that the repairs were done and the tractor returned, however, he could not say whether this transpired in May, June or July of 1976. Plaintiff’s inability to establish his own date or to contradict Mr. West’s recollection of the date is shown by his answer to the following question posed by International Harvester’s attorney at page 230 of the record:

“Q. All right, sir. And, isn’t this a true statement: That following repairs made to the tractor — the final repairs made to the tractor on or about August 15th, 1976, following Mr. West’s discussion with you and inspection of the tractor, that you made no further complaint with reference to the tractor’s condition until you filed a suit on August 24, 1977? And, I’m talking about complaints, I mean to International Harvester.
A. That may be correct.”

By way of minute entry found at page 335 of the record, the trial court after considering the evidence presented, stated:

“... After examination of the transcript of the original hearing of this matter, the Court finds that the preponderance of the evidence proves that the date of last repair was on or about August 15, 1976. Plaintiff did not file this suit until August 24, 1977. There was no evidence of further repairs, attempts to repair, or commitments to make repairs after August 15, 1976. Since suit was filed more than one year after the date of last repair, the Court concludes plaintiff’s claim had prescribed.”

Upon examination, we cannot say the lower court erred in sustaining International Harvester’s exception of prescription and ordering plaintiff’s suit dismissed.

For the foregoing reasons the judgment of the trial court dismissing plaintiff’s suit is affirmed. Plaintiff shall pay all costs of this appeal.

AFFIRMED.

      . After the trial on the exception which was held on September 10, 1979, plaintiff filed an affidavit dated September 12, 1979, and a deposition of plaintiff taken on August 24, 1979. International Harvester moves to strike these exhibits because they were not offered into evidence at the trial of the exception and because they were filed without the judge’s signature. (A clerk of court allowed them to be filed.) For the reasons advanced by International Harvester and for the additional reasons that plaintiff failed to hold the record open for the introduction of additional evidence or to move to reopen the record for introduction of additional evidence, we grant International Harvester’s motion to strike these exhibits from the record. Hence, they will not be considered by us.


author: CULPEPPER, Judge.

text:
    Iva O. MERRELL, Plaintiff & Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant & Appellant.
    No. 8863.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Robert H. Carpenter, Jr., and Owen M. Goudelocke, of Mengis, Durant & Carpenter, Baton Rouge, for defendant & appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff & appellee.

      Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

The plaintiff, Iva 0. Merrell, sues the State of Louisiana, through the Department of Transportation and Development (hereinafter “Department”) for damages for personal injuries arising out of a two vehicle accident which occurred in Natchitoches Parish on November 26, 1978. The trial court held the Department was negligent in failing to maintain a safe highway and shoulder, which negligence was the sole cause of the accident. The Department appeals.

On appeal, the Department contends:

1) The trial court was clearly wrong in finding that a hazardous condition existed, and that the Department had notice thereof.
2) The trial court was clearly wrong in finding that Iva 0. Merrell was not contributorily negligent.
3) The trial court abused its discretion by awarding excessive general damages and future loss of earnings.

FACTS

The accident which gave rise to this suit occurred at approximately 4:40 p. m. on Sunday, November 26, 1978, on Louisiana Highway 1 in Natchitoches Parish. The plaintiff, accompanied by two passengers, was proceeding northward on Highway 1 to attend evening church services. Due to heavy rains, Mr. Merrell was operating his vehicle with the headlights on and windshield wipers in operation. Just after crossing what is known as Monette’s Ferry Bridge, at a point at which the shoulder of Highway 1 changes from one of asphalt pavement to one consisting of dirt and gravel, the right front tire of plaintiff’s automobile dropped off the pavement and into a hole or rut in the gravel shoulder at the edge of the paved portion of the highway. At this point, the plaintiff lost control of his automobile, which veered into the south bound lane where it collided with a south bound dual wheel pickup truck. Mr. Merrell suffered severe injuries as a result of the accident.

The trial court concluded that the Department was negligent in failing to maintain a safe highway and shoulder, and that the evidence showed no contributory negligence on the part of the plaintiff which would relieve the Department of its liability for his injuries. He held that the condition of the road and shoulder was in the nature of a trap causing Mr. Merrell to lose control of his vehicle. He further found that the Department had adequate notice of the defect and was negligent either in failing to observe it, or in seeing it and failing to correct it within a reasonable time. In addition to awards for past loss of wages and past and future medical expenses, the court fixed the award for future loss of earnings at $368,000 and for past, present and future pain, suffering, disfigurement and disability at $200,000.

NEGLIGENCE OF THE DEPARTMENT

The general duties of the Department toward the traveling public were stated by the Louisiana Supreme Court in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980);

“[1] It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.3
Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department’s duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.
[2,3] The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition.
******
In Rue, [372 So.2d 1197 (La.1979)] supra, the rule was clarified to include persons who drove onto the shoulder inadvertently where there was neither knowledge nor reason to know of either a defective condition of the shoulder itself or any other condition that would make such action hazardous (such as a car on the shoulder of the road).”

The trial court found as a fact that a hazardous shoulder condition did exist at the site of this accident, that the Department had notice of its existence, and that the plaintiff encountered this hazard which caused him to lose control of his vehicle. The Department contends the evidence as a whole is insufficient to support these findings.

It is well settled that the test of the sufficiency of the evidence in a civil case, whether direct or circumstantial, is whether the evidence, taken as a whole, shows the fact sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

The plaintiff testified he was proceeding cautiously and, because he noticed oncoming traffic, moved his vehicle to the far right of the north bound lane after crossing the bridge. Because of low visibility due to the rainy condition, he was using the white lane marker on the right-hand side of the road as a guide. He stated that soon after he crossed the bridge, his right front wheel suddenly left the pavement, he felt a drop-off and a scraping sensation underneath the automobile, and then lost control.

Two sets of photographs taken by the Department were introduced into evidence. One set of these photos was taken exactly one month before the accident (It is unclear from the record exactly when the other set was taken). These pictures show a rut (we use this term for want of a better descriptive term) on the edge of the pavement in the angle formed by the end of the paved shoulder and the roadway as it continues with a gravel shoulder. They show that the white lane marker by which the plaintiff was guiding his automobile comes to an end at the point at which the paved shoulder ends, leading directly into this rut, and begins again to the north end of the rut. At this point the edge of the main travel portion of the highway has been eroded for a distance of some two to five feet and at least four inches in width, resulting in a rut. The length of two to five feet is based on the pictures and the observations of witnesses, since no measurements were taken.

Mrs. Doris Hale and Mrs. Elsie Vinsick testified that on November 14,1978,12 days before the plaintiff’s accident, they were traveling in an automobile whose right rear tire dropped into this same rut while leaving the main travel portion of the roadway to go onto the shoulder, in order to avoid faster traffic approaching from the rear. Mrs. Hale, the driver, testified that due to the severity of the jar, she experienced difficulty in maintaining control of her vehicle, despite ideal weather conditions and a slow speed of 10 to 20 miles per hour. She stopped on the shoulder, and she and Mrs. Vinsick got out to look at the rut. Mrs. Hale testified that the rut appeared to be about six inches deep, and that the gravel shoulder had eroded away from the main travel portion of the roadway so that five to eight inches of the asphalt edge were visible.

The plaintiff’s father, who also works for the Department, testified that at least two weeks before the accident he had noticed the broken off place in the same area. He stated that he did not tell his supervisor about it because such reports from employees were discouraged, and because he assumed that one of the crews working in that area would take care of it. Nor did he see any reason to mention it to his son.

The Department introduced the testimony of Troy Vascoeu, the parish maintenance superintendent, that the records kept during his general annual inspection of October 20-26,1978 showed no particular problem in this area, and that he had noticed nothing he would consider to be a serious defect in driving this route on November 8, 13 or 16, nor in his regular inspection of routes on December 12, 1978. The only other evidence of the condition of the road in this area was the testimony of a Department employee that he worked on the shoulders of the section in which this accident occurred on October 27, 1978, November 20, 1978, and again in early December, 1978, and noticed no particular problem at any of these times. However, he had no independent recollection of the specific areas of the section in which he worked, or what was done in a particular area.

There are numerous cases in which an irregularity in the shoulder of the road has been held to constitute a hazardous condition. Many of these involved elevational differences between the roadway and the shoulder due to additional overlay of the road, generally ranging in height from slightly over two inches to four inches. See Sinitiere v. Lavergne, supra; Smith v. State, through Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir. 1982); McDaniel v. State, through Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981), writ denied 404 So.2d 277, 279 (La.1981); Edwards v. State, through Department of Transportation and Development, 403 So.2d 109 (La.App. 3rd Cir. 1981); Godwin v. GEICO, 394 So.2d 751 (La.App. 3rd Cir. 1981).

In Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) the Supreme Court held that a rut at the highway’s edge which caused the plaintiff to lose control of her car constituted a hazard to the reasonably prudent driver. See also Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir. 1980), writ denied 400 So.2d 211 (1981), and Acosta v. State, Department of Highways, 399 So.2d 1189 (La.App. 4th Cir. 1981), in which ruts in the shoulder of the highway were held to be a dangerous condition of the highway.

In light of the estimated depth of this particular rut of at least five inches, its position on the very edge of the main travel portion and the paved shoulder of the highway, and the fact that the white lane marker led directly into the rut, we discern no clear error in the trial court’s finding that this condition did indeed pose a hazard to the reasonably prudent motorist. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Additionally, the finding that the Department was negligent in maintenance of the highway and its shoulder is amply supported by the record, since members of the public were aware of the rut, and the superintendent of maintenance testified to inspecting, or at least viewing, the area numerous times during the months of October and November of 1978. See Acosta v. State, supra; Jones v. Louisiana Department of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976). This finding will therefore not be disturbed on appeal. Arceneaux, supra.

NEGLIGENCE OF IVA 0. MERRELL, JR.

Defendant contends the plaintiff’s negligence in oversteering his automobile once it was on the shoulder was the true cause of the accident.

In Sinitiere v. Lavergne, supra, the Louisiana Supreme Court explained the rule of Rue v. State, Department of Highways, supra, by saying:

“In Rue, supra, this court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. This language does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leaving the main travel portion of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. See Rodgers v. Department of Highways, 376 So.2d 1295 (La.App. 2nd Cir. 1979); Morrow v. Department of Highways, 377 So.2d 430 (La.App. 2nd Cir. 1979).”

We recognize that recovery by a party is barred by his contributory negligence if the record shows that he was aware of the defect in the shoulder and oversteered in an attempt to re-enter the main travel portion, or attempted re-entry at too high a speed. See Edwards v. State, Department of Transportation and Development, supra; Godwin v. GEICO, supra; Knotts v. State, Department of Highways, 395 So.2d 419 (La.App. 3rd Cir. 1981), writ denied 400 So.2d 669, 670 (La.1981).

Nevertheless, as this Court stated in McDaniel v. State, Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981):

“.,. we do not believe the Court intended to leap to the other extreme and automatically deny recovery to every motorist who strays onto the shoulder and thereafter does not accomplish a safe re-entry back onto the roadway’s riding surface. Instead, we feel it our duty to, on a case-by-case basis, focus on the facts and circumstances presented in each case to determine whether the straying motorist breached his duty to drive reasonably.”

Our review of the record in this case reveals no evidence to show that the plaintiff did in fact make an attempt to get back on the main travel portion of the highway. The state trooper who investigated the accident did not make a determination or form an opinion regarding the actions of the Merrell car after running onto the shoulder, other than speculating that a spray of gravel indicated the point at which it re-entered the highway. This showed only that it was traveling in a northwesterly direction at that point. The accident report simply stated the reason for the movement of the vehicle as “out of control, not passing.”

The occupants of the truck with which the plaintiff collided noticed nothing untoward about the plaintiff’s automobile as it approached, until they observed that the driver had apparently lost control.

The bulk of the evidence regarding Mr. Merrell’s loss of control indicates that it was due to his hitting the rut and that he did not lose control in attempting to regain the main travel portion of the highway. The plaintiff testified that due to the rain, he was driving cautiously with his headlights and windshield wipers on, at about 40 miles per hour. He stated this was the speed at which he always drove in heavy rains. This testimony was corroborated by the two passengers, except that they could not testify as to his speed. All the witnesses testified that it seemed he did not have time to bring the car under control and try to get back on the highway after the sudden bump or jolt when the tire left the pavement and before the collision occurred. The plaintiff himself had no clear memory of what occurred after he felt the wheel leave the pavement except that he tried to hold the vehicle straight, but never regained sufficient control to maneuver the car at all.

We conclude the trial court’s determination of plaintiff’s freedom from negligence is not clearly wrong under the evidence presented at trial.

QUANTUM

The defendant contends that the trial court erred in awarding the plaintiff excessive general damages of $200,000 for pain, suffering, disfigurement and disability, and in granting an excessive award for future loss of wages in the amount of $368,000.

Our law provides in LSA-C.C. Article 1934 that in the assessment of general damages, the judge or jury has much discretion. The standard of appellate review for such trial court determinations was set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977):

“We do reemphazise, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.”

The Supreme Court further elaborated on this principle in Reck v. Stevens, 373 So.2d 498 (La.1979), wherein it stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion’, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

The plaintiff’s injuries as a result of this accident were quite severe. He was pinned in his automobile with part of the dash around his knees and his right foot trapped for almost two hours. He was apparently conscious during most of this time, attempting to extricate himself and suffering a great deal of pain. The orthopedic surgeon, Dr. T. E. Banks, testified the plaintiff was still conscious upon his arrival at Rapides General Hospital.

His relatively minor injuries consisted of a cerebral concussion, lacerations of the scalp and through the upper lip, injury to his teeth, glass cuts on his abdomen and chest, and lacerations on his hands. The severe injuries were an open fracture of the left femur with bleeding from the thigh, and an obvious deformity of his left foot which was diagnosed as a lateral dislocation of the astragalus (this is the dome-shaped bone on the top of the foot which comes up to form the bottom half of the ankle joint and fits into the cavity formed by the configuration of the lower end of the tibia and fibula).

The fractured femur was treated by inserting a pin through the tibia and placing the entire leg in traction until the open wound on the thigh had healed, in order to avoid the danger of infection. The femur was fractured in two places. In the subsequent operations necessary to repair the fracture, an S-shaped incision approximately 12 inches in length was made in order to insert a Hansen-Street nail into the femur through the medullary canal, from the buttocks to the knee. This injury ultimately healed completely with no further complications.

The crushing of Mr. Merrell’s left foot has resulted in permanent disability since the damage to the astragalus was so extensive that Dr. Banks concluded the foot would be better without it. It was therefore left out and the plaintiff’s tibia now rests on the os calcaneus (heel bone). This condition is quite painful, and the plaintiff was still using one crutch over a year after the accident because of the pain in his foot. He now has to wear a special rocker-bottom shoe, to aid him in walking. The only thing which can be done to relieve the pain, and the surgical procedure advised by Dr. Banks, is fusion of the tibia with the heel bone, which should eliminate the pain if successful but will leave Mr. Merrell with a stiff ankle. From surgery to rehabilitation would take a period of four to six months.

Dr. Banks testified that without this surgery, which had not been performed at the time of trial, the plaintiff has a 35% disability. With a successful fusion, he would be left with a 25% disability. Mr. Merrell was 21 years old at the time of the accident and 23 at the time of trial. He can no longer enjoy the recreational activities in which he participated before the accident since he has difficulty in running and walking on uneven ground. He has been unable to work since the accident and can now only do some types of light work requiring mostly sitting. Under these circumstances, we discern no abuse of discretion in the trial court’s award of $200,000 in general damages.

The trial court utilized the calculations of the economic experts presented by both parties in making its award for past and future loss of wages. The Department does not dispute the award of $16,544 for past loss of wages. However, it argues that the trial court abused its discretion by accepting defendant’s expert’s calculations of loss of future earnings in the amount of $368,-000, but not adopting the complete approach used by this expert to calculate a “net over-all economic loss.”

When the trial court determines the amount of damages sustained by a particular tort victim, it is appropriate to consider all pertinent factors discussed by the experts as those factors bear on the probability of that victim’s earnings over his work-life expectancy. One of the appropriate factors to be considered in setting damages for impairment of earning capacity is the probability or improbability that the plaintiff would have earned similar amounts during the remainder of his work-life, but for the injury. Moreover, impairment of earning capacity cannot be calculated with mathematical certainty, and sound judicial discretion must be exercised after all proper considerations are weighed. Philippe v. Browning Arms Company, 395 So.2d 310 (La.1980), on rehearing.

The Supreme Court further stated in Philippe:

“[6] In the determination of an injured person’s net economic loss caused by impairment of earning capacity, one of the factors to be considered is the availability of reasonable employment opportunities for which the claimant is suited by education, experience and physical capacity.”

The plaintiff’s economic expert, Earl Thames, calculated Mr. Merrell’s loss of future earnings based on the assumption that he would never go back to work. He estimated loss of future wages in the sum of $264,900. He did not use an inflation factor, nor a discount, because he estimated these would offset each other.

In contrast, the defendant’s expert, Dr. Burford, used the assumption that plaintiff could perform some types of manual labor for wages after July of 1981. He first calculated a total loss of future earnings of $368,000, assuming that the plaintiff never worked again. To reach this figure, he used the minimum wage of $3.35 per hour at the time of the accident in November of 1978, and he calculated 40 hours per week, 52 weeks per year for a total of $6,936 per year. Then he added an 8% per year inflation factor to 1981, the year of the trial, to reach base earnings of $8,090 per year. Using U.S. Bureau of Labor statistics, he estimated a work-life expectancy of 38 years after 1981. Then he calculated annual inflation of 8% and an annual discount of 7% (for interest earned on a lump sum award) the net effect being he compounded a 1% increase for 37 years, resulting in the figure of $368,750. At the end of the 38 years, the entire principal and interest of the fund will be depleted. See Hardy v. State of Louisiana, through Department of Highways, 412 So.2d 208 (La.App. 3rd Cir. 1982), for a detailed analysis of essentially this same method of calculation of loss of future wages.

Defendant’s expert, Dr. Burford, made another calculation based on the assumption that plaintiff could perform some manual labor for wages after July of 1981, as testified to by Dr. Banks. In these calculations he again used the base figure of $8,090 earnings in 1981, and again used an 8% annual inflation rate and a 7% annual discount rate, for estimated total actual earnings during the 38 years following 1981 in the sum of $317,000. He then subtracted $317,000 estimated actual earnings by plaintiff from the sum of $368,000 estimated loss of earnings, resulting in an estimate of $51,000 in future loss of earnings. Defendant contends this is the method of computation and the figure which the trial court should have adopted in awarding damages for loss of future wages.

The plaintiff presented the testimony of a vocational rehabilitation expert which established that Mr. Merrell is unlikely to ever have steady employment again, due to the combination of a low level of intellectual ability and his physical disability. Although the plaintiff is a high school graduate, his academic achievement is limited to a third or fourth grade level. The plaintiff’s expert, Dr. Galloway, placed him in the mild to moderate range of retardation and stated that he could not be rehabilitated to a higher level because he does not have the scholastic or academic ability. He has further suffered a loss of versatility due to the injury, because he cannot move from one job to another in the same industry. He will be restricted in bending, lifting and climbing and, therefore, disqualified from even moderately strenuous jobs involving manual labor. This expert’s opinion was that his chances of employment are quite small since the only type of job available to him in Natchitoches Parish and the surrounding area would be of a light janitorial nature in a service-type business which lacks stability. Even in this type work, he is likely to lose out in terms of competitive employability to someone with all the same characteristics except the disability. Moreover, employers are reluctant to hire a worker with a disability because of the increased likelihood of workmen’s compensation claims.

Based on all the evidence, the trial court concluded that the plaintiff is virtually unemployable in the Natchitoches Parish area and very unlikely to ever again secure steady employment. He therefore awarded for future loss of wages the amount which he deemed to have been calculated by the most reasonable method, and which had been based on the assumption that Mr. Mer-rell will be unable to work again. We find no abuse of discretion in this conclusion.

The Department’s final contention is that the trial court’s award is excessive because the evidence shows that Mr. Mer-rell should have undergone the corrective surgery as soon as Dr. Banks found he was ready for it and, had he done so, would have been able to return to work. Thus, the argument goes, his damages would have been minimized and the calculation of net loss of future earnings by the Department’s expert was the proper award. This argument is without merit inasmuch as the evidence shows that, even with the surgery, the plaintiff will continue to be disabled from the manual labor for which he is suited. He will still be limited in his ability to bend, lift, climb and walk. Based on the expert testimony, the trial court’s conclusions that the corrective surgery would not significantly increase the likelihood of Mr. Merrell’s future employment is not manifestly erroneous.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


author: DOUCET, Judge.

text:
    James Harold RICHARD, Plaintiff-Appellant, v. HEBERT’S CREAMERY, INC., et al., Defendants-Appellees.
    No. 8749.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1982.

      Morrow & Morrow, Jeffrey M. Bassett and Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendants-appellees.
    Before CULPEPPER, SWIFT and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff, James Harold Richard, appeals a summary judgment dismissing defendant Fireman’s Insurance Company of Newark, N. J., from his suit for personal injuries sustained when the brakes allegedly failed on the milk truck he was driving in the course of his employment with Hebert’s Creamery, Inc. The trial judge held that the cross-employee exclusion in the employer’s general liability and automobile liability policy was applicable to the executive officers of the company and, accordingly, granted defendant’s motion for summary judgment. We affirm.

Previously party to this suit was the plaintiff’s employer and certain executive officers who excepted to Richard’s action with objections of no right of action and no cause of action, contending that Act 147 of 1976, amending LSA-R.S. 23:1032, provided them with immunity from liability in tort. The trial court sustained the exceptions. We reversed, holding that the aforesaid amendment was substantive and therefore not retroactive to the date of the accident. Richard v. Hebert’s Creamery, 359 So.2d 1088 (La.App. 3rd Cir. 1978). In subsequent proceedings summary judgments were entered dismissing all defendants. The dismissal of the executive officers, shareholders and employer’s insurer was appealed and we affirmed with respect to the executive officers and shareholders. With regard to the insurer, we reversed without prejudice as the policy was not properly in the record. Richard v. Hebert’s Creamery, Inc., 381 So.2d 945 (La.App. 3rd Cir. 1980). Upon remand the policy was properly filed into evidence and a summary judgment was again granted.

The issue on appeal is whether, as a matter of law, Fireman’s Insurance is entitled to a judgment dismissing the suit against it. The question turns on whether there is coverage in favor of the executive officers under either the comprehensive liability or the automobile liability features of the policy-

By its terms the comprehensive liability provisions exclude coverage for any injury to a person involved in the use or maintenance, etc. of a motor vehicle. The plaintiff claims the brakes failed in the delivery truck he was driving and as a result thereof he was forced to leap from the truck causing injury to his knee. This provision clearly excludes from coverage the situation in this case. Equally clear is that the insurance does not apply to bodily injury to an employee of the insured arising out of and in the course of his employment by the insured.

Plaintiff alleges that the executive officers of the creamery owed him a duty of care to provide him with hazardous-free and safe equipment, and contends that his action falls under the general comprehensive liability portion of the policy. According to the plaintiff, an ambiguity exists in the policy inasmuch as the provision listing persons insured extends to executive officers where the named insured is designated as other than an individual, partnership, or joint venture, whereas the executive officers are excluded under the cross-employee provisions. We disagree.

We find no ambiguity in the policy. The provisions complained of pertaining to coverage relate to different circumstances. That the executive officers are among those defined as persons insured, and as employees of the named insured under the cross-employee exclusion, does not, ipso facto, render the policy ambiguous. The latter provision has as its intention the denial of coverage to employees that have a remedy under the Workmen’s Compensation Act. Both the Workmen’s Compensation Act and the contract between the parties limit the right of recovery from a fellow-employee. The trial judge properly concluded that the executive officers were employees for the purpose of the cross-employee exclusion. Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974); Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976); Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970).

The present situation is distinguishable from the case relied upon by appellant, Credeur v. Luke, 368 So.2d 1030 (La.1979) where the president of the corporation was individually named in the policy as an insured. As the executive officers herein are not named insureds, there is no ambiguity as to coverage thereof as in Credeur.

As the terms of the policy are not ambiguous they form the law between the parties. Accordingly the trial judge properly sustained defendant’s motion for summary judgment.

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

AFFIRMED.


author: KLIEBERT, Judge. BOUTALL, Judge, CHEHARDY, Judge,

text:
    SUCCESSION OF Dr. William E. GRIFFITH. In re Edward C. ALKER v. SUCCESSION OF Dr. William E. GRIFFITH.
    No. 12434.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 1982.
    See also La.App., 411 So.2d 55.

      M. Arnaud Pilie, Pilie & Pilie, New Orleans, for executrix and appellant — Karen Griffith.
    Edward C. Alker, Metairie, in pro. per.

      Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

The decedent, William E. Griffith, died on October 21, 1979. His widow, Karen Griffith, filed for probate his last will and testament in statutory form dated July 20, 1977. She was confirmed as the testamentary executrix of the succession on November 28, 1979. Mr. Edward C. Alker, an attorney, alleging himself to be an unliqui-dated creditor of the succession for unpaid legal services in the amount of $24,167.10, filed, on June 16, 1980, a rule nisi labeled “Petition by Creditor to Compel Executrix to Furnish Security”. This pleading alleges there is a “proof of claim” attached. On the second page of this pleading there is an order dated June 18, 1980 ordering the testamentary executrix to post security of $30,208.88 for Alker’s claim. Thereafter (following the filing of unrelated matters) there appears in the record a document labeled “Formal Proof of Claim to the Succession” with an attached “Statement of Account” showing how the claim of $24,-167.10 was computed. The documents are stamped as having been filed on June 23, 1980. The document contains language stating that it is a formal proof of claim mailed to the succession representative on June 9, 1980 pursuant to the provisions of C.C.P. 3245. The trial judge, in a handwritten order dated June 23,1980, appearing on the bottom of the statement of account, set a hearing for June 30, 1980. There is no indication in the record by minute entry or otherwise as to whether a hearing was held on June 30,1980 or whether the matter was continued.

On July 9,1980, Alker filed a rule against the testamentary executrix to show cause why she should not be removed as the succession representative and his claim ordered paid immediately. By court order attached thereto, dated July 21, 1980, the rule was set for hearing on September 3, 1980. The pleading contains a certificate of service dated July-, 1980 (sic) stating that all counsel of record had been served and there is a service instruction on two addresses at which Mrs. Karen Griffith, the testamentary executrix, could be served. A return by Deputy Hedwig on this rule shows that as of July 30, 1980 he was unable to serve the rule on the testamentary executrix. On the date set for the hearing, that is, September 3.1980, only Edward C. Alker appeared. A transcript of the evidence submitted by Alker is filed in the record. Alker testified as to an error in addition of $1,000.00 in the statement of account filed on June 23, 1980 and that he performed the services indicated in the statement and submitted the proof of claim and the statement of account in evidence to support his claim of $25,-167.10 in attorney fees. On the same day, i.e., September 11, 1980, the trial judge rendered judgment ordering the testamentary executrix to pay the sum of $25,167.10 together with $500.00 additional as attorney fees to Alker.

Counsel for the executrix, on September 16.1980, filed a rule to show cause why the judgment dated September 11, 1980 should not be set aside due to the unauthorized use of a summary proceeding and lack of service. At the time of filing, the rule was set for hearing on September 26, 1980. On October 9, 1980 the testamentary executrix applied for and was granted a suspensive appeal of the judgment dated September 11, 1980. The return date set for the appeal was December 9,1980. The suspensive appeal bond was timely filed on the same date.

Notwithstanding the pendency of a sus-pensive appeal of the September 11, 1980 judgment, Alker started seizure proceedings to enforce collection of the judgment. The testamentary executrix applied to this court for writs of certiorari and prohibition to ascertain the validity of the judgment of September 11, 1980. These were denied on February 2, 1981. Thereafter, on application of the testamentary executrix the Supreme Court stayed all proceedings and remanded the case to this court for an expedited hearing. Prior to the granting of the writ by the Supreme Court, Alker’s efforts to execute on the judgment of September 11,1980 resulted in the testamentary executrix reapplying for a stay order and writs to this court. On the initial hearing this court set the judgment of September 11, 1980 aside for lack of service and remanded the case to the trial court. On a subsequent hearing, based on additional information submitted to the court, however, the judgment was affirmed and a mandamus issued directing the trial judge to revoke and vacate the writ of fieri facias and to dismiss the garnishment proceedings because of the pendency of this suspensive appeal. La.App., 411 So.2d 55.

The legal issues on this appeal are simple. However, we are plagued with the problem of obtaining a complete record from the trial court. In addition to the record being fractured and segregated for the writ application, the problem is compounded by the fact this is a succession proceeding where different claims in litigation against the succession merely bear the number and identification of the succession without any identification as to the particular claim involved. Further, counsel for each party presents arguments based on a vague record or pleading alleged to have been filed but not contained in the record and neither side seeks to clarify the record.

On the writ applications to this court the issues presented were (1) Alker’s use of the summary process, (2) the service of Alker’s pleadings, and (3) whether the suspensive appeal (the one now being considered) was timely filed. The briefs filed in the appeal cover substantially the same arguments as those made in the application for writs.

As to the improper use of a summary proceeding, Judge Gulotta, in the initial opinion rendered on the writ application, said:

“Although there is a serious question whether summary procedure may be used to assert a money claim against a succession, the dilatory exception to use of this procedure is waived unless timely pleaded in the trial court. LSA-C.C.P. Arts. 926, 928. See also, Ritchey v. Brignac, 328 So.2d 190 (La.App. 3rd Cir. 1976); In re Lomm, 195 So.2d 416 (La.App. 4th Cir. 1967), writ refused, 250 La. 541, 197 So.2d 81 (1967). In this matter the exception was untimely filed and we cannot now consider the propriety of Alker’s use of summary procedure to assert his claim.”

However, as recognized and stated by Judge Gulotta, a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity that can be raised collaterally at any time. LSA C.C.P. Art. 2002(2). Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir. 1979).

Therefore, in the initial opinion on the writ application this court considered the real issue before it was “whether the Succession was properly served with Alker’s rule to show cause”. In reaching the conclusion to set aside the judgment of September 11, 1980, Judge Gulotta held that “since a rule to show cause anticipates an appearance by the defendant in rule, we hold that Alker’s rule required service by the Sheriff”. He then concluded that Alker’s rule to show cause and the order setting the matter aside for hearing on September 3, were not served on either the Succession’s attorney or the executrix and accordingly set the judgment of September 11, 1980 aside.

Subsequently, on a rehearing of the writ application, Judge Boutall, as the organ of the court said:

“Our inquiry here is basically directed at the nullity of judgment for lack of service. The record shows, despite continued denials of the succession attorney, that the ‘FORMAL PROOF OF CLAIM TO THE SUCCESSION’ and ‘STATEMENT OF ACCOUNT’, showing the details of the claim for attorney’s fees and containing an order of the judge setting the hearing on the claim for June 30, 1980, were all personally served on June 27,1980, on Karen Griffith, the executrix. John T. Keyes, Jr., attorney for the succession at that time was served on June 26, with citation and ‘PETITION BY CREDITOR TO COMPEL EXECUTRIX TO FURNISH SECURITY’ in addition to the other three pleadings. The applicant’s statements in this regard are misdirected. However, the rule was not heard on June 30 but later on September 3, and this is an area of serious contention”.

He then went on to conclude the trial judge had in open court extended the trial date for the above referred to rule from June 30, 1980 to September 3, 1980. Therefore, he agreed with the decision of the trial judge to permit Alker to proceed with the rule on September 3,1980 even though the attorney for the succession representative was not present. Although Judge Boutall’s opinion upheld the validity of the judgment of September 11, 1980 on the arguments presented on the writ application, the court issued a writ of mandamus directing the trial judge to revoke and vacate the writ of fieri facias and to dismiss the garnishment proceedings because the perfection of the appeal now under consideration suspended execution of the judgment of September 11, 1980.

At first it might appear Judge BoutalPs opinion on the writ application upholding the validity of the September 11,1980 judgment is final, thus precluding us from again considering the validity of the judgment. However, although dependent upon the conclusions reached on a factual issue, i.e., was service of process made on the testamentary executrix, the substantive question involved is whether or not the judgment of September 11, 1980 is a nullity.

Under Article I, Section 2 of the Louisiana Constitution of 1974, no person can be deprived of life, liberty or property, except by due process of law. The essential elements of due process of law are notice, and the opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Louisiana Materials Co. v. Cronvich, 236 So.2d 510 (La.App. 4th Cir. 1970). Additionally, to render a valid judgment a court must have jurisdiction over the person. This jurisdiction must be based on service of process. La.C.C.P. 6. Thus, in the absence of process on the testamentary executrix of a pleading demanding payment of the unliquidated claim, the judgment of September 11, 1980 is an absolute nullity and, as such subject to a collateral attack at any time. C.C.P.Art. 2002(2), Thompson v. Courville, supra.

As was true at the time the application for rehearing on the writs was filed, we are now supplied with information we did not have at the time the writs were filed. Ordinarily, we would not consider on this appeal the transcript of the arguments on the motion to set aside the judgment of September 11, 1980 which occurred on January 5,1981 because they occurred after the suspensive appeal was granted. However, in view of the Supreme Court’s order mandating an expedited hearing and the fact the question has been considered on writs on two previous occasions, in the interest of judicial expediency and justice, we do consider the transcript of the January 5, 1981 hearing on this appeal.

From the transcript of the hearing of January 5,1981, we note that counsel for both parties repeatedly refer to “rules” or “motions” allegedly filed or served but not sufficiently identified so that the particular rule or motion the attorney is referring to may be readily identified in the record or on returns made on the services. However, by careful examination of the transcript of January 5, 1981 and the rules and motions and services contained in the record, followed by questioning of the attorneys at the time of oral argument, we learned that the rule which Mr. Alker now contends supports the judgment of September 11, 1980 is not the rule labeled “Formal Proof of Account” or “Statement of Account” considered by Judge Boutall in the rehearing on the writ application; nor the rule to show cause filed by Alker on July 9, 1981 (above referred to), but rather a totally different rule which he quotes from in oral argument and refers to in his brief on appeal, and contended in the transcript of the January 5,1981 hearing had been served on the succession representative. Upon questioning, Alker admitted that the rule he was relying on could not be found in the record before us. Although Alker contends the rule was filed and served he made no effort to prove his contention by other means. An unfiled rule cannot serve as a basis for the judgment of September 11, 1980. Thus, the only remaining pleading which could have served as a basis for the judgment of September 11, 1980 is the rule filed by Alker on July 9, 1980 or the three documents considered by Judge Boutall.

In the transcript of the proceedings on January 5, 1981, Alker admitted that the rule dated July 9, 1980 (rule to remove the administratrix and for her to show cause why Alker should not be paid) had not been served on the succession representative. Also there is other evidence (the return by the Sheriff) indicating the rule was not served on the succession representative.

As determined by Judge Boutall on the writ application, it is clear the “Formal Proof of Claim to the Succession” and the “Statement of Account” together with the “Petition by the Creditor to Compel Executrix to Furnish Security” containing the handwritten order to set same for hearing on June 80, 1981 were personally served on the succession representative. However, those documents cannot support the judgment of September 11, 1980 ordering the succession representative to pay Alker’s claim.

In order to provide for an orderly administration, the Code of Civil Procedure prescribes the procedures to be followed by an unliquidated creditor seeking to judicially enforce his claim. Under these procedures, the creditor cannot sue to reduce his claim to judgment until the succession representative has rejected the claim. However, he has the right to present the claim to the succession representative for acceptance or rejection (La.C.C.P. 3241), to demand the posting of security for his claim (La.C.C.P. 3155) and to interrupt prescription by filing a formal claim with the succession representative. (La.C.C.P. 3245). All of these can be accomplished in a summary manner.

By filing the documents entitled “Petition by Creditor to Compel Executrix to Furnish Security”, the “Proof of Claim” and the “Statement of Account”, Alker was following the procedures prescribed by the Code of Civil Procedure. From their contents and by specific allegations contained in the documents, it is certain their purpose was to have the succession representative acknowledge or reject the claim, to have security posted for the claim and to stop the running of prescription on the claim. None of these documents prayed for or demanded what the judgment of September 11, 1980 granted, i.e., a right to payment of the claim.

Indeed, Alker’s right to seek such a remedy could only be exercised by opposition to the succession representative’s account or by an ordinary action following a rejection of the claim presented by the documents, La.C.C.P. 3246, Succession of Isgitt, 297 So.2d 231 (La.App. 3rd Cir. 1974). Apparently, in recognition of this requirement, on July 9, 1980 Alker filed the rule to show cause (as opposed to the required petition and citation of an ordinary action) why the succession representative should not be removed from office for failure to timely post the security ordered posted for his claim and why his claim should not be ordered paid. This rule, however, was never served on the succession representative. As stated by Judge Gulotta, since the rule to show cause anticipated an appearance by the defendant in rule, it required a personal service on the succession representative. In the absence of such a service the constitutional and jurisdictional requirements necessary to sustain the judgment of September 11, 1980 are lacking. Hence, the judgment of September 11, 1980 is an absolute nullity.

Accordingly, the judgment of September 11, 1980 is set aside. The service of the “Proof of Claim” and the “Statement of Account” has however interrupted the running of prescription. Further, the testamentary executrix’s failure to respond to these within the allotted thirty days constitutes a rejection of the claim, La.C.C.P. 3242, therefore Alker is free to pursue the reduction of his claim to judgment in accordance with the procedures prescribed by the Code of Civil Procedure, that is, by petition and citation or by opposition to the final account. Each party to bear his own cost of the appeal.

SET ASIDE AND REMANDED.

BOUTALL and CHEHARDY, JJ., concur.

BOUTALL, Judge,

concurring.

I concur. Despite my belief that the prior opinion of this court rendered on February 10, 1982, is final and executory and is now the law of the case between these parties, I must recognize my own confusion as to the true facts. Accordingly a trial of this matter will render justice to all parties.

CHEHARDY, Judge,

concurring.

Noting that the Succession representative has posted bond to insure payment of the claim against the Succession, I believe that justice will be best served by a trial of this matter.

Accordingly, I concur.

      . The executrix posted bond for $30,000.00 on July 24, 1980.

      . There is some indication in the record that the hearing on the rule was continued to sometime in October. The record does not contain a transcript of an October hearing, but the record does contain a judgment dated October 21, 1980 dismissing the rule to set aside the September 11, 1980 judgment in favor of Alker. There was a hearing held on January 5, 1978 (after this appeal was taken) in which the rule to set aside the judgment of September 11, 1980 was reargued and a judgment rendered also dismissing the rule to set aside the judgment. A transcript of this hearing was attached to Alker’s brief.

      . The writ application was docketed in this court under No. 12280.

      . This was docketed by the Supreme Court under No. 81-C-0340 396 So.2d 928 (1981).

      .This amended or supplemental application was docketed in this court under No. 12382.

      . The difficulty we have had and are now having with a record in this case is a classic example of the difficulty encountered when for the sake of expediency issues are considered on writ application rather than considered through the normal appellate process.

      . The sheriffs office in Jefferson maintains a log on documents served and a microfilm record of documents served. In argument counsel for the succession representative contends that an examination of those records failed to locate the rule relied on by Alker. This is not disputed or commented on by Alker.

      . Prior to the enactment of the Code of Civil Procedure, under the provisions of Article 1677 of the Civil Code, the failure to timely post the security as ordered by the court ipso facto resulted in removal of the succession representative.


author: SAMUEL, Judge.

text:
    Darryl J. CARIMI v. CRESCENT INSULATORS, INC.
    No. 5-284.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.

      Terry A. Bell, Gretna, for plaintiff-appel-lee.
    Robert B. Schambach, Metairie, for defendant-appellant.
    Before SAMUEL and GAUDIN, JJ., and MELYYN J. PEREZ, J. Pro Tern.
   SAMUEL, Judge.

This is a plaintiff motion to dismiss an appeal taken by the defendant.

The motion alleges the appeal was taken from a judgment which maintained an exception of no right of action filed by the plaintiff to a reconventional demand filed by the defendant. The sole argument in support of the motion to dismiss is that the appellant has failed to file a brief despite the fact that it obtained two extensions of time in which to do so and those extensions have expired. We do not agree with that argument.

At this time, the penalty for failure to file an appellant brief timely is not dismissal of the appeal. As provided by current Rule IX, Section 11, Uniform Rules — Courts of Appeal, the sole penalty for failure to file briefs timely is forfeiture of “. . . the right of the party, so failing, to orally argue the case before the court.”

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

MOTION DENIED.

      . The Third Circuit appears to have a different rule.


text:
    HARKINS & COMPANY, et al. v. James W. ELLIOTT, Jr., et al.
    No. 53095.
    Supreme Court of Mississippi.
    March 17, 1982.
    Rehearing Denied June 30, 1982.
    Heidelberg, Woodliff & Franks, Kenneth I. Franks, Glenn Gates Taylor, Brunini, Grantham, Grower & Hewes, Edmund L. Brunini, Jr., John E. Milner, Jackson, Joseph Dale, Prentiss, for appellants.
    Armstrong & Hoffman, John T. Armstrong, Hazlehurst, William E. Hathorn, Prentiss, Donald B. Patterson, Brookhaven, for appellees.
   Appeal from Chancery Court, Jefferson Davis County; J. W. Walker, Chancellor.

Before WALKER, ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.