author: CHEHARDY, Judge.

text:
    Janita THIBODEAUX v. PIONEER LAND DEVELOPMENT & REALTY CORPORATION, et al.
    No. 5-138.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.
    Writ Granted Dec. 20, 1982.

      Roger J. LaRue, Jr., Metairie, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Nathan T. Gisclair, Jr., New Orleans, for Pioneer Land Development & Realty Corp., defendant-appellant.
    Victor E. Bradley, Jr., Norco, in pro. per.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   CHEHARDY, Judge.

This law suit concerns an attempted sale of stock in a closely-held corporation. The purchaser, Janita Thibodeaux (hereafter Thibodeaux), filed suit for a declaratory judgment to have the stock transfer declared valid and to be recognized as a stockholder in the defendant corporation. Alternatively, she sought to have the transfer set aside and to have her money returned to her. She sued both the corporation itself, Pioneer Land Development & Realty Corporation (hereafter Pioneer), and the stockholder who sold her his shares, Victor E. Bradley, Jr. (hereafter Bradley). In turn, Pioneer and Bradley filed reconventional demands against Thibodeaux and third party demands against each other. In addition, Bradley sued Terrel Carmouche, the corporation’s president, and Ronald Car-mouche, its secretary-treasurer.

The trial court rendered judgment in favor of Thibodeaux and against Pioneer, finding the transfer valid and ordering Pioneer to issue her a stock certificate for 100 shares. The court also ruled in favor of Thibodeaux against Bradley, ordering him to pay her attorney fees. The court decided in favor of Bradley on his reconventional demand, ordering Thibodeaux to pay him for the promissory notes she signed as consideration for the stock. Finally, the court dismissed the reconventional and third party demands of Pioneer, and assessed costs equally among the parties.

Pioneer has appealed all aspects of the judgment. Thibodeaux has appealed to protect her interest in the event of a reversal; in the event the judgment is upheld, she seeks re-assessment of the interest imposed by the trial judge on the promissory notes. Bradley has neither appealed nor answered the appeal.

Pioneer was incorporated on November 13, 1978 by Bradley and four others, all of whom were named in the articles of incorporation as officers and directors. Bradley was a vice president of the company. He is also an attorney, and he drew up the articles of incorporation. The articles provide for 500 shares of no par value stock. Each incorporator held 100 shares. Article VII(C) of the articles contains a restriction on transfer of shares, providing that no shareholder may sell any stock without first offering it to the corporation for its book value, by a written offer to the corporate secretary which must remain open for 30 days.

On February 22,1980, Bradley and Thibo-deaux entered into a written agreement by which Bradley sold his 100 shares to Thibo-deaux for $100,000. The agreement provided for $25,000 of the purchase price to be paid by cashier’s check on February 25, 1980, and the balance to be paid by two promissory notes. The agreement also provided that Bradley was to hold harmless and defend Thibodeaux from any suit filed by either Pioneer or any of its stockholders to void the sale of the stock.

On the date of the sale, Bradley endorsed his stock certificate over to Thibodeaux. He also prepared a blank stock certificate showing her as owner of the shares, ready to be signed by the president and secretary of the corporation. Bradley retained possession of both certificates, with Thibo-deaux’s concurrence, to place them in his bank deposit box for safekeeping. Thibo-deaux retrieved the certificates from Bradley sometime around March 27, but the shares were never tendered to the corporation for transfer into her name. On April 30, 1980, Thibodeaux filed this suit, seeking to determine the validity of the transfer.

The full text of the transfer restrictions reads as follows:

“No shareholder may sell any stock of this corporation without first offering it to this corporation on the basis of the book value thereof as shown by the last preceding statement of this corporation, for the common stock. Said offer must be made by delivering to the Secretary of this corporation, against written receipt, the certificates representing said stock, endorsed in blank, and a written offer to sell said stock to this corporation, for cash, at the value hereinabove mentioned. This corporation shall have the right, for a period of thirty (30) days from the delivery of such offer, and said certificates endorsed in blank, to the Secretary of this corporation, to purchase the stock of said shareholder, for cash, at the book value thereof as shown by the preceding statement of this corporation, after which thirty (30) days the said shares may be sold without restriction.
“No sale of any of the stock of this corporation shall be valid and binding until and unless opportunity to purchase such shares has been given to this corporation in the manner in this article provided, and, this right, so vested in this corporation, shall follow any of the stock of this corporation so sold without such opportunity being given to this corporation in the manner into any hands into which it may pass. Such right may be exercised against the holder(s) of such stock up to ninety (90) days after such shares are tendered for transfer on the books of this corporation, and no transfer of any such shares shall be made on the books of this corporation without the written consent of all of the other record holders of stock of this corporation, during the pendency of said ninety (90) day period.
“The right vested in this corporation to purchase the stock of any shareholder of this corporation desiring to sell any stock of this corporation may be waived, in writing, by all of the other record shareholders of this corporation at any time. * * * if

The central difficulty in enforcing these restrictions arises because they are not mentioned on the face of the stock certificate. LSA-R.S. 12:57(F), in effect on November 13, 1978, states:

“(1) No by-law or other restriction on the transfer of shares, (2) no provision for compulsory offer of shares of its own stock for purchase by, or sale to, the corporation, (3) no agreement among shareholders binding on others than the parties signatory thereto, and (4) no lien or privilege in favor of a corporation on shares of its own stock, shall be recognized or enforced, unless such restriction, provision or agreement, or the right of the corporation to such lien or privilege, is set forth or summarized, or a reference thereto and information as to where the same may be inspected is contained, in the certificates representing the corporation’s shares.”

LSA-R.S. 12:57(F) is augmented by LSA-R.S. 10:8-204, which took effect on January 1, 1979. That statute provides:

“Unless noted conspicuously on the security, a restriction on transfer imposed by the issuer, even though otherwise lawful, is ineffective, but this provision shall not dispense with the requirements of R.S. 12:57(F) and R.S. 12:210(D). A restriction on transfer shall be effective, even if the restriction is not noted on the certificate, against persons having actual knowledge of the restriction.”

In its reasons for judgment, the trial court stated:

“The conflict between the methods for waiver of the restriction contained in Article VII(C) of the corporate articles and Article VI(8) of the unsigned by-laws, coupled with the failure of the stock certificate to conform to RS 12:57(F), RS 12:638, and RS 12:210(D), coupled with the absence of any records that would reflect the operation and administration of the corporation, makes it necessary that this court declare the restrictions on the transfer of defendant corporation’s stock are unenforceable and that the transfer from Bradley to Thibodeaux was a good and valid transfer.”

The court also concluded the “actual knowledge” clause of LSA-R.S. 10:8-204 was inapplicable because that statute “was not effective until January 1, 1979 and cannot operate retroactively against a certificate issued November 13, 1978.”

We conclude the trial court erred in its application of the law.

The bylaws of the corporation were never formally admitted into evidence and are not in the record before us. Therefore they should not have been considered by the trial judge. Further, the testimony and reasons for judgment show these bylaws, drafted by Bradley, were unsigned and undated, and were never formally adopted. It does not appear they were even informally promulgated by him to the other shareholders. Accordingly, they are null and only the restrictions in the articles of incorporation are applicable.

Bradley’s stock certificate is devoid of any reference to the transfer restrictions. Were only LSA-R.S. 12:57(F) applicable, as the trial court ruled, there would be no controversy; the restrictions would be ineffective. (Both LSA-R.S. 12:638 and 12:210(D), also cited by the trial judge, are inapplicable. R.S. 12:638 was repealed by the passage of the act which included R.S. 10:8-204. R.S. 12:210(D) applies only to nonprofit corporations.)

We find, however, that R.S. 10:8— 204 is applicable to this proceeding. The transfer to Thibodeaux took place more than a year after the statute’s effective date. The “actual knowledge” provision refers not to an event transpiring at the time the stock certificate was issued, but rather to knowledge at the time of a transfer occurring after the statute took effect.

Pioneer’s discussion of this issue in its brief is apposite, therefore we adopt it here:

“ * * * [A] simple reading of the statute itself will show that it clearly contemplates enforceability of restrictions in circumstances in which a stock certificate is transferred or attempted to be transferred. It is therefore * * * irrelevant * * to direct [one’s] attention to the date that the corporation was created and incorporeal shares in the ownership of the corporation were likewise created, i.e., the time of formation of the corporation. The statute has nothing to do with the principles of corporate formation or of the issuance of stock certificates per se; rather it deals with the conditions under which a corporation or its shareholders may take action to enforce pre-existing transfer restrictions — regardless of the contents or provisions of any specific stock certificate. The statute — properly interpreted — does not apply retroactively to previously issued stock certificates; rather it applies prospectively to any transaction wherein stock certificates are transferred which occurs after the effective date of the statute.” Brief on behalf of defendant-appellant, Pioneer Land Development & Realty Corporation, p. 17.

Thibodeaux contends that R.S. 10:8-204 conflicts with R.S. 12:57(F) because R.S. 10:8-204 states the requirements of R.S. 12:57(F) shall not be dispensed with, yet at the same time allows persons having actual knowledge of a restriction not noted on a security to be bound thereby. We fail to see any conflict. R.S. 12:57(F) simply lists things in addition to restrictions on transfer that must be referred to on stock certificates, i.e., provisions for compulsory offer of shares, shareholder’s agreements, and liens or privileges in favor of the corporation. The language of R.S. 10:8-204 makes clear that it was intended to augment rather than to supplant R.S. 12:57(F).

Since R.S. 10:8-204 is the pertinent law, the question remaining is whether Thibo-deaux had actual knowledge of the transfer restrictions, so that they are effective despite not appearing on the certificate.

Bradley testified he met informally with Terrel and Ronald Carmouche (the president and secretary-treasurer of the corporation) on February 18 and advised them of his negotiations with Thibodeaux. According to Bradley, they told him they could not afford to buy the stock at the price Thibo-deaux was paying. Delma Cheek, the fourth shareholder, was involved in the negotiations between Bradley and Thibo-deaux, and obviously knew of the situation. (Louis Carmouche, the fifth shareholder, was not mentioned by any of the witnesses.)

On February 22, the day the sale agreement with Thibodeaux was signed, Bradley sent the following letter, addressed to Pioneer Land Development & Realty Corporation, to the attention of Terrel, Louis and Ronald Carmouche, and Delma Cheek: “Gentlemen:

In accordance with the meeting held on Monday, February 18, 1980, I hereby tender for purchase to this corporation, of which you are the remaining stockholders, my one hundred (100) shares of stock, twenty (20%) percent interest, in this corporation for the sum of One Hundred Thousand & No/100 ($100,000.00) Dollars. I would appreciate your advising me as soon as possible of your decision in this matter.”

On March 19, 1980 an attorney retained by the corporation sent Bradley a letter refusing his tender for failure to comply with the provisions of the corporate articles.

Thibodeaux testified she began discussing the sale of the stock with Bradley around the first week in February. She met with him four or five times and Delma Cheek was always present. She denied there was ever any discussion of possible problems or restrictions on sale of the stock, either by Bradley or by Cheek. She said, however, that on February 22 when she went to sign the document Bradley told her for the first time he had to offer it to the other shareholders.

She said Bradley took it upon himself to insert the hold harmless paragraph and she had not seen it prior to signing the document. She testified she thought the purpose of the agreement was to protect her from personal liability on notes signed by shareholders. She stated she placed her faith in Bradley because he was an attorney. She never took the stock certificate to Pioneer to get new stock issued because she thought Bradley was going to do it.

She testified further that after the transaction she contacted an attorney, Charles Barbera, to look over the documents. She also said Bradley told her she did not have anything to worry about. He told her he would have to make an offer to the other stockholders first and she told him that was all right with her. She testified he told her he offered them the stock but they could not afford it.

Bradley testified he met with Barbera on February 21 (the day before the sale). During that meeting he discussed problems as to selling the stock and his previous meetings with the Carmouche brothers. As a result of the meeting, he sent Barbera a copy of his letter to the other stockholders.

Bradley said the hold harmless provision was put into the sale agreement because of the problem with the articles of incorporation and the sale of stock. He stated the problems were discussed with Thibodeaux, and he explained he had offered the stock to the other shareholders at the same price and they were not going to purchase it. He expressed his opinion that the stock was open for sale.

Bradley’s secretary, Michele Waguespack, testified she typed up the agreement. She said Bradley and Thibodeaux talked about possible objections by the Carmouches to sale of the stock, so Bradley put the hold harmless clause in the agreement. She also recalled that Barbera phoned the office for Bradley on February 21 and that Bradley went out to meet with him on the same day. She also heard Bradley tell Thibodeaux she should go to the corporate offices so they could sign the new certificate made out to her. She recalled Bradley saying he thought it was a valid sale but that the Carmouches might have objections; she heard him reassure Thibodeaux, saying that in his opinion as an attorney it was a valid sale.

Neither Charles Barbera nor Delma Cheek testified at trial.

Considering the foregoing, we conclude Thibodeaux must be deemed to have had actual knowledge of the transfer restrictions, sufficient to bring her within the scope of LSA-R.S. 10:8-204. As far as can be ascertained from a cold record, she was a naive participant in securities transactions. She did not realize the full implications of the information, and she — and apparently her attorney — relied on Bradley’s assurances of the transfer’s legal validity. Nonetheless, from the totality of the evidence, she, and her attorney as her agent, were informed of the restrictions. Her reliance on Bradley’s interpretation of the effectiveness of the sale cannot affect the corporation’s right under the transfer restrictions, because her knowledge of the existence of the restrictions brings her within the scope of R.S. 10:8-204’s “actual knowledge” exception. As a result, Bradley’s sale of the stock to Thibodeaux is invalid.

Although our conclusion is that sought by Pioneer, we cannot supply Pioneer the relief for which it prays. Pioneer seeks to obtain Bradley’s stock for payment of its book value, $863.20. Under the transfer restrictions, that is the price for which Bradley would have had to offer the stock to the corporation before selling it to an outsider. However, the record establishes that Bradley never offered the stock to Pioneer for its book value; his offer was to sell it for $100,000, the price Thibodeaux was paying. Pioneer itself has strenuously contended, at trial and on appeal, that notice to it was not proper, that the other conditions giving rise to the option were not fulfilled, and that it was not in any way bound or required to exercise its option or to respond in any way to Bradley’s February 22 letter.

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. * * * ” LSA-C.C. art. 2164. It would be most unjust to require Bradley to give up his stock to the corporation for $863.20 when it is worth $100,000 to at least one buyer, when he has made no offer to sell it for the lower price. Consequently, we conclude the proper result is to return all parties to their status quo ante with respect to their stock ownership.

Our conclusion on this major issue makes it unnecessary to discuss Pioneer’s claim against Bradley for breach of fiduciary duty, or Thibodeaux’s alternative appeal regarding the amount of interest on the promissory notes. Those matters are rendered moot by our decree herein.

The final issue is Thibodeaux’s request for additional attorney’s fees for this appeal. That request is justified, and Bradley is liable for them under the district court’s judgment, which awarded them pursuant to the hold harmless provision of his agreement with Thibodeaux. We find $250 to be an adequate fee for this appeal.

Accordingly, the judgment of the district court is reversed in part, affirmed in part, amended and recast.

It is ordered, adjiidged, and decreed that there be judgment herein as follows:

1. In favor of Pioneer Land Development & Realty Corporation and against Janita Thibodeaux, declaring null Thibo-deaux’s purchase of 100 shares in said corporation represented by Stock Certificate Number 4, and ordering Thibodeaux to return Stock Certificate Number 4 to Victor E. Bradley, Jr.;

2. In favor of Janita Thibodeaux and against Victor E. Bradley, Jr., in the amount of $25,000 plus legal interest from the date of this judgment until paid; further, it is ordered that Bradley return to Thibodeaux the promissory notes signed by her as part of the transaction made the basis of this suit;

3. In favor of Janita Thibodeaux and against Victor E. Bradley, Jr., for attorney’s fees in the amount of $1,750 with interest from date of judicial demand until paid;

4. In, favor of Janita Thibodeaux and against Victor E. Bradley, Jr., dismissing Bradley’s reconventional demand;

5. In favor of Pioneer Land Development & Realty Corporation, Terrel Car-mouche and Ronald Carmouche, and against Victor E. Bradley, Jr., dismissing Bradley’s third party demand against them; and

6. In favor of Victor E. Bradley, Jr., and against Pioneer Land Development & Realty Corporation, dismissing Pioneer’s third party demand against Bradley.

All costs are to be paid by Janita Thibo-deaux and Victor E. Bradley, Jr.

REVERSED IN PART; AFFIRMED IN PART; AMENDED AND RECAST.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    Wilmer AGOFF v. Margie C. Touchard, Wife of Russell Joseph BOUTTE.
    No. 5-86.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      Roger I. Dallam, Greenberg & Dallam, Gretna, Peter C. Bertucci, Harvey, for plaintiff-appellee.
    A.S. Cain, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

This is a suspensive appeal by Margie C. Touchard, wife of /and Russell Joseph Boutte (hereafter Boutte), defendants, from a judgment ordering the partition in kind of a tract of land located along Bayou Bara-taría, near Lafitte, in Jefferson Parish. William Agoff (hereafter Agoff), plaintiff, filed suit alleging a 20% undivided interest in the tract. Boutte answered, denying Agoff’s alleged ownership and claiming ownership of the entire tract. The trial judge concluded Agoff owned an undivided 20% interest in the tract and Boutte owned the remaining 80% interest. We affirm.

Both Agoff and Boutte’s chain of title emanates through Isodore Fisher who acquired from Anatole Adam, the following described tract, by act before Samuel J. MeCune (McCune act) dated February 19, 1982:

A CERTAIN PIECE OR PORTION OF LAND, together with all the rights, ways, servitudes, privileges and advantages thereunto belonging or in any wise appertaining, situate, lying and being in the District of Barataría, in the Parish of Jefferson, this State, below the junction of Bayou Aux Oies, and situated immediately in the rear of properties belonging to Vincent Parray, Alphonse Belsome, Luden Adam, Wm. E. Adam, Villeur Pi-zani, Oliver Adam and the “Church”, which piece or portion of land begins at a distance of One Hundred Forty-Five (145) feet from Bayou Barataría and extends in depth to the rear line which is a distance of Ten arpents from Bayou Barata-ría, bounded on the upper side by a portion of land belonging to the present vendor [Anatole Adam] measuring Twenty-Five (25) feet front on Bayou Barataría by Ten arpents in depth, a part hereof being reserved for a cemetary, and on the lower side by property belonging to Forrest Adam, all of which will more full appear by reference to the sketch annexed hereto and made part hereof, and forms part of property acquired by said vendor, as per act registered in the Conveyance Office of this Parish, in Book “0” folio 149.

By judgments of possession rendered in the Successions of Isodore Fisher and his wife, Carrie Goldstein, their son, Joseph Fisher, was recognized as one of their heirs and as such entitled to the ownership and possession of an undivided 20% interest in the property. In the trial court, Agoff and Boutte stipulated that as of June 18, 1963, “Joseph Fisher owned a 20% interest in the property sought to be partitioned and he was free to convey same if he chose to do so.”

Agoff s claim of ownership in the tract sought to be partitioned emanates from a. sale made to him by Joseph Fisher. By act dated June 18, 1963 before Gilbert Cohen (Cohen act), Notary Public, there was conveyed to Agoff all of Joseph Fisher’s interest in the following described land, to-wit:

A CERTAIN PIECE OR PORTION OF GROUND, together with all the rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining, situated, lying and being in the District of Barataría in the Parish of Jefferson, this State, and measuring 280 feet front on a lane 145 feet back from Bayou Barataría and extending in depth to ten arpents line bounded above by H. Perrin below by Cemetery.
Being the same property acquired by Isi-dore Fisher from Anatole Adam, and recorded in COB _, folio -, in the Parish of Jefferson, State of Louisiana.

Boutte contends the description is too vague and indefinite to convey the 20% interest owned by Joseph Fisher in the tract sought to be partitioned, because the upper and lower boundaries are erroneously stated.

Although Boutte’s pleadings allege an ownership of a 100% interest in the tract, he testified that he believed Agoff was the owner of a 20% interest in the tract until he saw Agoff’s acquisition. On examining Agoff's acquisition, he noted the upper and lower boundaries were in error, hence, he concluded it was not a conveyance of an interest in the tract which is the subject of this partition suit. Further, in 1973, when he made his first acquisition of an interest in the tract he knew and was aware his acquisition was for only an undivided 80% interest in the tract because he believed the remaining 20% interest was owned by Agoff.

The Notary and subscribing witnesses to the Cohen act testified that the description on the sale from Joseph Fisher to Agoff was “a rush job” compiled from the 1963 tax rolls, which contained the following description of the property:

“280 feet front on a lane 145 feet .back from Bayou Barataría and extending in depth to 10 arpents line bounded above by H. Perrin below by Cemetery.”

Agoff testified that he and Joseph Fisher had discussed the tract being conveyed and each knew the property sought to be conveyed was the same property which is the subject of this partition suit.

The McCune act described the tract as being bounded on the upper side by the cemetery, whereas, the Cohen act describes the tract as being bounded on the lower side by the cemetery. Several other acts were introduced as being in the Boutte chain of title and refer to Forrest Adam’s land as being on the upper side of the tract. All of these make reference to the sketch attached to the McCune act.

By joint stipulation the plaintiff and defendant submitted in evidence the “Payne Map.” Mr. Payne was the Parish Surveyor many years ago. According to the Payne Map, the tract in question here is bounded above by the property of Horace Perrin and a cemetery and below by the property of Forrest Adam.

Significantly, the flow of the current of Bayou Barataría is reflected in the Payne Map but not on the sketch attached to the McCune act. Apparently, counsel for Boutte conceded in closing trial argument (not reflected in the record) that the McCune act description and drawing were in error in that the upper and lower boundaries were reversed and that this error was perpetuated in numerous descriptions thereafter until it was detected and corrected in 1973 for both the trial court and Agoff’s counsel refers to the concession and it is not denied by Boutte’s counsel.

It is true, as contended by counsel for Boutte, that under the ruling of Snelling v. Adair, 196 La. 624, 199 So. 782 (La.1940) for a deed to be translative of title it must contain a description which properly identifies the property. The same case, however, holds at page 787 that:

“It is a settled rule of law in this state that if a portion of the description of property in a deed is either erroneous or misleading, it is nevertheless susceptible of conveyance if the property intended to be conveyed by the parties can be ascertained with certainty by the aid of such extrinsic evidence as is admissible under the rules of evidence.” (Citations Omitted)

The trial judge was and we are impressed by the fact that all of the various property descriptions described a tract of land being 145 feet back from Bayou Bara-taría, measuring 280 feet in width by ten arpents which can be identified on either the McCune sketch or the Payne Map. No one suggests confusion with another parcel of ground along the Bayou. . No one suggests there is another parcel of ground with the same dimensions, as that involved here, acquired by Isodore Fisher from Anatole Adam. It was common knowledge in the area that Agoff owned an interest in the property involved here and Boutte was aware of this and believed that Agoff was the owner when he commenced his efforts to acquire the remaining 80% of the tract. It takes extrinsic evidence to determine the boundaries are in error; but, when the cause of the error is known, the property can be easily identified as the one intended to be conveyed. When knowledge as to the flow of the current in Bayou Barataría is obtained, it is apparent the upper and lower boundaries were erroneously stated in the description. The same information, however, also shows the boundaries were merely reversed. When this is known the property intended to be conveyed is easily identified on the sketch attached to the McCune act and to the Payne Map.

Accordingly, the decision of the trial court is affirmed. All costs of the appeal to be borne by Boutte.

AFFIRMED.


text:
    Wanda Sue BRIDGEWATER & Louis Henderson v. Joseph J. WORTHY.
    No. 5-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Robert S. Booth, Jarrell E. Godfrey, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff-appellee.
    Earl B. Gray, Metairie, for defendant-appellant.

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

Joseph J. Worthy, defendant (hereafter judgment debtor) suspensively appealed from a judgment reviving a previous money judgment in favor of Wanda Sue Bridgewa-ter and Louis Henderson, plaintiffs (hereafter collectively referred to as judgment creditors). The issue presented on the appeal is the trial judge’s dismissal of the peremptory exception of prescription filed by the judgment debtor to the petition for revival. The trial judge concluded the prescription provided for by La.C.C. Article 3547 had not run. We affirm, but not for the same reasons stated by the trial judge in his reasons for judgment.

As the result of damages sustained in an automobile accident, the judgment creditors obtained judgments dated November 12, 1969 against the judgment debtor in the Civil Court for Jefferson County, Alabama. Thereafter, on a petition alleging the judgment debtor was indebted to them for the same amount as the Alabama judgments and praying for recognition of the Alabama judgments, on April 6, 1970, the Twenty-fourth Judicial District Court for the Parish of Jefferson rendered a judgment in favor of the judgment creditors against the judgment debtor in the amount prayed for. The Louisiana judgment of April 16, 1970 was then filed in the mortgage records of the Parish of Jefferson and thus attached as a judicial mortgage to real estate of the judgment debtor located in the Parish.

Although efforts to collect the judgments were made and bankruptcy proceedings filed, on January 28, 1980 the judgment creditors filed a petition to have the Louisiana judgment rendered on April 6, 1970 revived. To this petition the judgment debtor filed an exception of prescription. The exception was dismissed and in due course judgment was rendered revising the Louisiana Court judgment of April 6, 1970 as an “in rem judicial mortgage”.

In the trial court and here the judgment debtor argues that more than ten (10) years expired between the date the Alabama court rendered judgment, i.e., November 12, 1969 and the date the petition for revival was filed, i.e., January 18, 1980, therefore, the judgment had prescribed when the petition for revival was filed. The trial judge decided Lawyers Title Services, Inc. v. Boyle, 308 So.2d 479 (4th Cir.1975) was dis-positive of the issues involved here and dismissed the exception.

In briefs counsel for the judgment creditors urges and counsel for the judgment debtor acknowledges Lawyers Title Services, Inc. v. Boyle, supra, is not dispositive of the issue involved here. We agree. The case is precedent for the proposition that although Alabama’s prescriptive period for the enforcement of a foreign judgment is more than ten years, the judgment will not be enforced in Louisiana if the petition to make it executory in Louisiana is brought more than ten years after its rendition. However, that is not the issue involved here. Here the question is whether the prescription provided for in Louisiana C.C. Article 3547 commences to run from the date the Alabama judgment was rendered or the date the Louisiana judgment was rendered.

La.C.C. 3547 provides as follows:

“A money judgment rendered by a court of this state is prescribed by the lapse of ten years from its signing, if rendered by a trial court, or from its rendition if rendered by an appellate court.
An action in a court of this state to enforce a money judgment rendered by a court of another state, or of a possession of the United States, or of a foreign country is barred by the lapse of ten years from its rendition; but no such judgment is enforceable in this state if it is prescribed, barred by the statute of limitations, or otherwise unenforceable under the laws of the jurisdiction where it was rendered.
Any party having an interest in a money judgment may have it revived before it prescribes, as provided in Article 2031 of the Code of Civil Procedure. A judgment so revived is subject to the prescription provided by the first paragraph of this article. An interested party may have a money judgment rendered by a court of this state revived as often as he may desire. (As amended Acts 1960, No. SO, § 1.)”

The answer to the question presented on appeal turns on whether the judgment of the Louisiana Court dated April 6,1970 was merely a procedural device to enforce the Alabama judgment or whether the Louisiana judgment now stands alone, separate and apart from the Alabama judgment.

In Douglass v. Gyulai, 144 La. 213, 80 So. 258 (La.1918) at page 259, the Court said:

“[1] The power, or jurisdiction, of one state, or of its courts, cannot extend over into another state. Therefore a judgment by a court of one state can have no operation in another state. A judgment ‘does not carry with it, into another state, the efficacy of a judgment! * * * To give it the force of a judgment in another state, it must be made a judgment there.’ McElmoyle v. Cohen, 13 Pet. (38 U.S.) 312, 10 L.Ed. 183. The effect of the full faith and credit clause is simply to preserve to the judgment its conclusiveness as evidence of the debt, not to preserve its executory character. Cole v. Cunningham, 133 U.S. 107, 10 Sup.Ct. 269, 33 L.Ed. 541.
‘The judgment is sued upon just as a promissory note would be, simply as the evidence of the debt claimed.’ Turley v. Dreyfus, 35 La.Ann. 510.”

Since the Alabama judgment was simply the evidence which supported the rendition of the Louisiana judgment, the prescription provided for in La.C.C. 3547 began to run on the Louisiana judgment only from the date of its rendition, i.e., April 6, 1970; therefore, the petition to revive the judgment was timely. Accordingly, the trial court judgment is affirmed. Each party to bear his own cost of the appeal.

AFFIRMED.

      . The judgment debtor filed a federal bankruptcy proceeding in 1971. The bankruptcy trustee disclaimed the real estate on which the judgment had attached before discharging the judgment debtor in bankruptcy.

      . The judgment debtor had filed a general denial to the judgment creditor’s petition. The judgment was rendered after the judgment debtor failed to respond to a motion for summary judgment and provided as follows:
      “1. There be judgment herein in favor of your petitioner, Wanda Sue Bridgewater, and against the defendant, Joseph J. Worthy, in the full and true sum of ONE THOUSAND EIGHTEEN AND 85/100 ($1,018.85) DOLLARS together with legal interest thereon from November 12, 1969 until paid together with the cost of this action;
      2. That there be judgment herein in favor of the petitioner, Louis Henderson, and against the defendant, Joseph J. Worthy, in the full and true sum of SIX HUNDRED EIGHTEEN AND 85/100 ($618.85) DOLLARS with legal interest thereon from November 12, 1969, until paid together with the cost of this action ...”


author: BOWES, Judge.

text:
    Albert T. BECNEL v. Joseph A. LUCIA, Jr.
    No. 5-57.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      C. William Bradley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for plaintiff-appellant.
    Lloyd LeBlanc, Jr., LaPlace, for defendant-appellee.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

Albert T. Becnel (appellant), Superintendent of the St. John The Baptist Parish School System appeals from a judgment by the trial court dismissing with prejudice and at his costs plaintiff’s rule to have revoked the conditional privilege Joseph A. Lucia, Jr., (appelle), the owner-publisher of L’Observateur (a weekly newspaper), sought to invoke when requested to reveal the name of a letter writer, by appellant.

The sole issue presented by this appeal is the application of LSA R.S. 45:1451 et seq., which grants newspaper reporters a conditional privilege from compulsory disclosure of an informant or source. The statutes in question pertinently provide:

LSA-R.S. 45:1451 Definitions

“Reporter” shall mean any person regularly engaged in the business of collecting, writing or editing news for publication through a news media. The term reporter shall include all persons who were previously connected with any news media as aforesaid as to the information obtained while so connected.
LSA-R.S. 45:1452 Conditional privilege from compulsory disclosure of informant or source
Except as hereinafter provided, no reporter shall be compelled to disclose in any administrative, judicial or legislative proceedings or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter.
LSA-R.S. 45:1453 Revocation of privilege; procedure
“In any case where the reporter claims the privilege conferred by this Part, the persons or parties seeking the information may apply to the district court of the parish in which the reporter resides for an order to revoke the privilege ... The application for such an order shall set forth in writing the reason “why the disclosure is essential to the protection of the public interest” and service of such application shall be made upon the reporter. The order shall be granted only when the court, after hearing the parties, shall find that the disclosure is essential to the public interest.”

On May 1, 1980, a letter entitled “Becnel Held Responsible” and signed “Name Withheld by Request” was published in the Letters to the Editor section of L’Observateur, a weekly newspaper owned and published by defendant-appellee. The next day plaintiff-appellant wrote to Mr. Lucia, Jr., demanding that he be supplied with the name that was withheld by request. Five days later, on May 5, 1980, Mr. Lucia, Jr., answered Mr. Becnel’s letter, stating that the author of the letter in question wished to retain his anonymity and that Mr. Lucia, Jr. intended to honor that request. Approximately three weeks after Mr. Lucia’s reply, Mr. Becnel filed this suit.

Plaintiff contends in his appeal that the District Court erred in allowing appellee to invoke the condition privilege granted by LSA-R.S. 45:1452 in that defendant-appel-lee is not a reporter; and alternatively that the District Court erred in refusing to revoke that conditional privilege.

The trial court found that the defendant was a “reporter” within the meaning of LSA-R.S. 45:1451. This court agrees with that finding as defendant was owner-publisher and editor for the letter in question and, even though he testified he was not acting as a “reporter” in looking over and editing this letter, it is not what the plaintiff considers himself that is legally important, but what the court considers to be his status, and we find that to be the status of a “reporter,” LSA-R.S. 1451 was passed by the legislature as Acts. 1964, No. 211. The title of that act reads in part as follows:

“An Act to confer a conditional privilege to reporters owning or employed in connection with news media from compulsory disclosure of the identity of any informant or source of any information...” (emphasis ours).

The statutes define reporter as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news media” (emphasis ours). Clearly, to restrict the granting of the privilege only to those persons whose names regularly appeared on by-lines as reporters would be to thwart the legislative intent indicated by the use of the phrase “any person” in the statute and by the inclusion of owners in the title of the Act. Without a doubt, a newspaper is engaged in the business of collecting, writing and editing news for public dissemination; and the owner-publisher in carrying out his duties is engaged in those same functions. Hence, an owner-publisher or anyone similarly situated must be considered a “reporter” within the meaning of LSA-R.S. 45:1451.

Additionally, this court finds that the author of the “Becnel Held Responsible” letter is a source of information within the meaning of LSA-R.S. 45:1452. The legislative intent of the statutes in question was enunciated by our brothers of the First Circuit in Dumez v. Houma Municipal Fire and Police Civil Service Board, 341 So.2d 1206 (La.App. 1st Cir.1976), rehearing denied 1977, wherein the Court states:

“The obvious statutory intent is to encourage the divulgence of news by informants who might otherwise hesitate to disclose matters of public import for fear of unfavorable publicity or the possibility of retribution resulting from their being revealed as the source of a particular news item. In so providing, our statute supports the basic right of the public to be informed by permitting a newspaper reporter to maintain the confidentiality of his news sources.”

The last question before the court is whether the conditional privilege claimed by the defendant-appellee should be revoked as provided in. LSA-R.S. 45:1453. That statute says, “The order shall be granted only when the court, after hearing the parties, shall find that the disclosure is essential to the public interest” (emphasis ours). Plaintiff has failed to show that the public interest would be harmed by the withholding of the information sought. By his own words, it is his interest the plaintiff wishes served, not the public’s ... (pp. 37 and 38 of trial transcript reads):

(By Mr. Bradley)
Q What is the purpose for your request that you be informed of that person’s name?
(By Mr. Becnel)
A So I’ll know who- that person — who— what — in other words, I would like to know the name of the person who is making the allegation.
(By Mr. Bradley)
Q Is it your intention to take any reprisals or other actions?
(By Mr. Becnel)
A At this time I have no intentions whatsoever except to find out who that person was.
BY THE COURT: Are you telling.the Court it is just to know who that person is?
THE WITNESS: At this time, your Honor, yes, sir.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    BARGE AND SHIP SERVICE, INC. v. RIVER FLEETS, INC.
    No. 5-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Robert C. Lowe, New Orleans, for plaintiff-appellant.
    Miles P. Clements, Lester J. Lauten-schlaeger, Jr., New Orleans, for defendant-appellee.

      Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

Plaintiff appeals from judgment of the trial court dismissing its demands for damages arising from an alleged breach of a lease between the parties to this suit.

Plaintiff and defendant entered into a lease on January 25, 1974 whereby defendant was to have the use of eight piling clusters on the west bank of the Mississippi River near Nine-Mile Point for the purpose of mooring barges. The lease reads in pertinent part as follows:

II
“BARGE agrees to furnish to RIVER FLEETS for its use in the fleeting of barges the presently existing piling clusters (8) as marked on “Exhibit A” and all other mooring aids presently located on the batture and adjacent to the leased premises.
III
“BARGE agrees to provide and furnish RIVER FLEETS an office consisting of one (1) room and toilet facilities for use by the fleet attendants employed by RIVER FLEETS. BARGE further agrees to prepare and furnish adequate roadway to RIVER FLEETS for access to the barges fleeted by it with a proper ramp set up therefor. BARGE further agrees to furnish four (4) additional dead men as kite anchors for use by RIVER FLEETS.
IV
“RIVER FLEETS accepts the aforesaid mooring facilities in their present condition and agrees to maintain them in the same order as received, normal decay, wear and tear excepted. All maintenance and repairs to the fleeting facilities, including but not limited to, the aforesaid pile clusters shall be at the expense of RIVER FLEETS and RIVER FLEETS agrees to properly carry out and complete such maintenance and repairs promptly after any damage occurs and to take whatever measures are necessary to maintain the safety of its fleet during such work. At the termination or cancellation of this lease RIVER FLEETS agrees to return at its expense the facilities in like good order as received, normal decay, wear and tear excepted.”

At the inception of the lease, on January 28, 1974, an independent and qualified marine surveyor, H.E. Breit, III, of Breit Engineering, Inc., found the leased clusters to be in satisfactory condition for the mooring of barges.

On January 12, 1977, shortly before the termination of the lease, which occurred on January 25, 1977, H.E. Breit, III was again employed to perform an independent survey of the leased clusters. At that time the surveyor found the leased clusters to be in satisfactory condition, normal wear and tear excepted, and we do not find any evidence in the record sufficient to overcome this or to prove that any of the leased clusters were damaged between January 12th and January 25, 1977, or at any time during the term of the lease.

Plaintiff claims that piling clusters 6 and 7 (part of those leased) and piling cluster 9 (not leased) were damaged some time during the term of the lease to the extent of $41,206.23 and further asked the court to award $16,200.00 for loss of rental due to defendant’s alleged breach of the lease. It is the contention of the plaintiff that Article IV of the lease brings the unleased but damaged cluster 9 within the scope of the lease. Plaintiff relies on the following wording to uphold his claim, “All maintenance and repairs to the fleeting facilities, included but not limited to the aforesaid pile clusters, shall be at the expense of River Fleets. ...”

It is well settled that the intent of the parties must be determined according to the clear and unambiguous terms within the four corners of the written instrument. Union Tank Car Co. v. Louisiana Oil Refining Corporation, 184 La. 121, 165 So. 638, (1936), and Muse v. Metropolitan Insurance Co., 191 So. 586, affirmed, 193 La. 605, 192 So. 72 (1939). Articles II and III of the lease detail the property which the plaintiff agreed to furnish defendant. The property included eight piling clusters, mooring aids, an office, toilet facilities, access roadway, ramp and four “dead men as kite anchors.” Since the lease specifically describes these other articles within the fleeting facilities in addition to the piling clusters, the only logical construction of this contract is that these articles only were the things referred to in Article IV outlining the duties of the defendant-lessee with respect to maintenance and repair, in addition to the pile clusters.

Also, because the defendant contracted to maintain and repair only that property which it leased (eight piling clusters, mooring aids, an office, etc.), any claim involving property outside the scope of the lease can only be brought against the defendant in tort. The plaintiff did not prove the elements of a tort action against the defendant in connection with damage to unleased cluster 9. Hence, the defendant cannot be held liable for any damage to this piling.

With respect to piling clusters 6 and 7, the plaintiff is entitled to exactly what was agreed to in the lease, which is as follows:

“. .. At the termination or cancellation of this lease RIVER FLEETS (the defendant) agrees to return at its expense the facilities in like good order as received, normal decay, wear and tear excepted.”

The learned trial judge in his reasons for judgment states:

“The evidence adduced by plaintiff, much of which was vague, self-serving and hearsay, did not establish with legal certainty [we interpret ‘legal certainty’ as used by the trial judge above to mean ‘by a preponderance of the evidence’, which is the requirement for proof to a legal certainty in civil matters] that the January 12, 1977 opinion of the marine surveyor was in error and that at the termination of the lease the clusters were damaged in excess of normal decay, wear and tear.
Because of the many imponderables and intangibles involved in marine matters, it is the custom of the trade to have on-charter and off-charter surveys made primarily to determine such issues as are involved in this case.
This court places weight on the marine surveyor's testimony and surveys sufficient to say that plaintiff has not proved that defendant is liable for damages under the lease agreement.”

We agree and take note of the extremely well settled law of this state that factual findings of the trial judge should not be disturbed by a reviewing court unless they are manifestly erroneous, which we do not find to be the case here.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Mitchell S. DUFRENE v. Melvin FOURNIER, et als.
    No. 5-157.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.

      Leon C. Vial, III, Hahnville, for plaintiff-appellant.
    J. Michael Johnson, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   BOWES, Judge.

Plaintiff appeals from the trial court judgment which dismissed his suit for damages sustained in an incident in which plaintiff was injured by a bull belonging to the insured of one defendant and being loaded into a trailer by two other defendants, statutory employees of the owner.

The basis of finding liability in this case is LSA C.C. Art. 2316:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Additionally, strict liability is imposed by LSA C.C. Art. 2321, which states in pertinent part:

“The owner of an animal is answerable for the damage he has caused.”

In discussing the preceding article, the Supreme Court stated:

“... the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability (not absolute liability, as in the case of wild animals) as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.” Holland v. Buckley, 305 So.2d 113 (La.1974)

In the instant case, plaintiff was injured when struck a blow by a bull owned by the insured of one of the defendants. The bull had strayed onto plaintiff’s land, where it was detained in a pen by the plaintiff for a few days until the owner, Otto Candies, Jr., could be determined and notified of the bull’s whereabouts. Upon being notified, Candies informed plaintiff-appellant that he would send someone to retrieve the bull. Approximately two days later, Candies dispatched defendants, Melvin Fournier and Royce Dempster, to pick up the animal. Melvin Fournier testified both on direct (transcript pgs. 121, 122 & 123) and on cross-examination (pgs. 123 & 124) that he warned petitioner several times not to go into the pen or to attempt to help load the bull. Royce Dempster likewise testified (transcript pgs. 127 & 128) that he warned plaintiff to stay out of the pen containing the bull.

There is conflicting testimony as to whether plaintiff, Mitchell S. Dufrene, actually entered and walked around in the pen with the bull or just climbed to the top of the fence and straddled the top rail with his right leg inside the pen. It is immaterial which testimony is correct; the fact remains that Dufrene moved from a location outside the pen, a position of complete safety, to the location he occupied when struck by the bull, and that his decision to move was entirely free and voluntary and against the advice of both Dempster and Fournier.

Petitioner’s own testimony establishes that he knew and understood that entering the pen with the bull created a risk of injury,

Direct Examination of plaintiff, Mitchell S. Dufrene, by his attorney, Leon C. Vial:
“Q. Had you been in that pen with that bull at any time before this date?
A. Oh, no. No. I never went in there.
Q. Why not?
A. Because.
Q. Because why?
A. He was a strange bull. That’s why.”
Cross-examination of Plaintiff, Mitchell S. Dufrene, by defense attorney, J. Michael Johnson:
“A. Well, I tell you, I was there when they come got him because I was afraid of that bull. We wasn’t feeding.
Q. You were afraid of that bull?
A. Wasn’t feeding.
Q. Were you afraid of him?
A. Because that’s what got that bull mad because he was hungry.
Q. Well, first answer my question, Mr. Dufrene. Were you afraid of that bull?
A. Well, I’m afraid of any bull.
Q. Because sometimes bulls will run into you or strike you, is that right?
A. Yeah.
Q. And you understand that about bulls?
A. Well, I don’t know. That bull was looking mean, that bull.
Q. Before the accident?
A. Yeah.
Q. You’ve worked with bulls...
A. That’s why I never did go in the pen to feed him.
Q. You’ve worked with bulls all your life, haven’t you, Mr. Dufrene?
A. Well, a pretty good while.
Q. Do you know if you don’t feed a bull it will make him more agitated perhaps?
A. Oh, yeah.
Q. And you knew this bull hadn’t eaten for five days when this accident happened?
A. He never ate and no drink.
Q. Will that make a bull more agitated?
A. Oh, yeah.
Q. So you knew this ...
A. Any cattle.
Q. So you knew this at the time of the accident, you knew that this bull had not eaten or drank for a period .of at least five or six days and that he would be more agitated than normal; isn’t that right?
A. Could be. Yeah.

Appellant had for six days, up until the time of the accident, avoided any contact with the bull for fear that he could be injured. Our brothers of the Fourth Circuit concluded:

“For a plaintiff to assume a risk, he or she must have knowledge of and voluntarily encounter the risk which causes the injury. Knowledge is the key point and must be proved by a preponderance of the evidence.”

Fincher v. Surrette, 365 So.2d 860 (La.App. 4th Cir.1978), rehearing denied, 1979.

It is clear from the evidence that assumption of the risk is applicable here since appellant left a position of safety and voluntarily placed himself in a location which he himself considered dangerous.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Beatrice Gray, Wife of/and Richard V. JOSEPHS v. Ozellia R. AUSTIN and Tommy Austin d/b/a Tommy Austin Realty.
    No. 5-103.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Rehearing Denied Nov. 17, 1982.

      John M. Garic, Post, Reinhardt, Rougelot, Metairie, for plaintiffs-appellees/appellants.
    Leon C. Vial, III, Hahnville, for defendants-appellants/appellees.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment against defendant Tommy Austin, holding him an “owner in fact” and personally liable for a redhibitory defect of a house sold to plaintiff by his mother, Mrs. Ozellia Austin. Plaintiffs, Mr. and Mrs. Richard V. Josephs, also appeal the amount of recovery, attorney fee assessment, and assessment of expert fees. We amend in part, affirm in part, and recast the judgment consistent with our findings herein.

The facts reveal that the defendant, Ozel-lia R. Austin, purchased a house from HUD on June 2, 1978, without warranty, for the sum of $11,500. On September 8, 1978, she sold the property to plaintiffs, Mr. and Mrs. Josephs, for $30,000. Mrs. Austin’s son, Tommy Austin, a licensed real estate broker, acted as agent in both transactions. Subsequent to plaintiffs’ purchase, they discovered the house had foundation failure in the form of a cracked slab.

In June, 1979, plaintiffs, Mr. and Mrs. Josephs, brought suit against defendants, Mrs. Ozellia R. Austin and her son Tommy Austin d/b/a Tommy Austin Realty, for rescission of the sale, return of the purchase price and damages. Trial on the merits was heard and on April 1, 1981, judgment was rendered solely against defendant Tommy Austin as the “owner in fact” of the property in question. The trial court reduced the purchase price by $3,000, assessing all costs and attorney’s fees against defendant. No judgment was rendered against Mrs. Ozellia Austin in that she died prior to trial, and neither her estate nor her heirs were substituted as parties to the action.

ISSUES PRESENTED BY DEFENDANT

Defendant raises the following issues on appeal:

(1) whether the trial court erred in its factual determination that a “foundation failure” existed on the date of the sale;

(2) whether the court erred in finding the defect non-apparent and non-discoverable upon simple inspection; and

(3) whether Mr. Tommy Austin was “in fact the owner” of the house and thereby liable in redhibition.

This court finds no merit to either the first or second claim. The fact that the defect existed was amply supported by the testimony of plaintiffs’ expert in civil engineering, the prior owners, the HUD official who advertised and negotiated the sale with Tommy Austin, and Tommy Austin’s own testimony. The fact that the defect was not apparent, as required by LSA-C.C. art. 2521, is also supported by the evidence.

The evidence shows that the house was in need of repair at the time it was purchased by Mrs. Austin and that the purchase was made pursuant to a HUD advertisement which declared the foundation failure. Subsequent to the purchase by Mrs. Austin, Tommy Austin began renovating the property and continued to do so until the sale to the Josephs. Mrs. Josephs testified that she visited the house several times during the renovation, and that she and her husband moved in one month prior to the date of purchase. She further testified uneontro-vertedly that because of the ongoing repair work and its attendant clutter and debris, neither she nor Mr. Joseph noticed any structural flaws, and that complaints made to Mr. Austin both prior to and after the sale involved other various problems unrelated to the defect. Months later, upon speaking to a Mrs. Butler, the owner pre-ceeding Mrs. Austin, she discovered that HUD had rescinded the sale to the Butlers because of a cracked slab. Although Mr. Austin claimed he told Mrs. Joseph prior to the sale that HUD believed a foundation failure existed but that he could find' no problem with the foundation, the trial court found otherwise.

A review of the record leads this court to conclude that the trial court’s findings of a non-apparent defect are not manifestly erroneous. In the absence of such, the trial court’s findings will not be disturbed. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

The third and overriding issue in this case is the question of whether defendant, Mr. Austin, can be held liable as an “owner in fact” for a redhibitory defect. The trial court held defendant Mr. Austin liable as an “owner in fact” of the house in question in that he held himself out as owner in the sale negotiations. The trial judge further found that defendant knew or should have known of the defect, which was non-apparent, and that he failed to so inform the plaintiffs. After a review of the facts and law pertinent to this case, this court concludes that the trial court erred in finding defendant liable in redhibition or quanti minoris since his status was not such as to subject him to liability for the defect under those legal theories. That is not to say, however, that he is free from liability under alternative legal concepts.

The redhibitory action is between seller and buyer, and without such a relationship, the action cannot be maintained. Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir.1977); Guidry v. Barras, 368 So.2d 1129 (La.App.3d Cir.1979). In order to be deemed a seller for these purposes, some legal ownership must be attributable to that party.

In the case herein, defendant only acted as broker and agent in the negotiations for the original purchase of the house from HUD to Mrs. Austin, and in the subsequent sale to plaintiffs, Mr. and Mrs. Josephs. The facts reveal that the now deceased Mrs. Austin was the record owner of the property at the time of sale and that it was she who signed the act of sale transferring the property to plaintiffs. Absent a showing of some other legal ownership interest, only Mrs. Austin was legally empowered to act on behalf of the property or to be responsible for damages resulting from or caused by the property. Whatever defendant may have asserted as to his proprietary interest prior to sale is irrelevant in an action in redhibition or for reduction of the purchase price. Since Tommy Austin was not the seller, he cannot be deemed liable for the reasons asserted by the trial court.

He cannot be held an owner, either, on the basis of his relationship to Mrs. Austin. As her succession was never brought before the court, we are precluded from finding liability on the assumption of heir-ship.

Plaintiffs, however, aver four other theories of liability: (1) Joint Venture; (2) Fraud under LSA-C.C. art. 1847(9); (3) Liability pursuant to LSA-R.S. 37:1447 and LSA-C.C. arts. 3016 and 3017; and (4) Negligent misrepresentation under LSA-C.C. arts. 2315 and 2316.

In Daily States Publication v. Uhalt, 169 La. 893,126 So. 228 (1930), the Supreme Court of Louisiana defined a joint venture as follows:

... a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation. 33 C.J., p. 841, Id. at 231.

Joint ventures are governed by the law of partnership. Marine Services, Inc. v. A-1 Industries, 355 So.2d 625 (La.App. 4th Cir. 1978). The difference between the two is that the joint venture is “usually, but not necessarily, limited to a single transaction ....”; Grand Isle Campsites, Inc. v. Cheek, 262 So.2d 350, 355 (La.1972) rehearing denied June, 1972.

In order to form a valid joint venture in Louisiana, the following elements are required:

(A) All parties must consent to formation of a partnership. LSA-C.C. art. 2805.
(B) There must be a sharing of losses of the venture as well as the profits, LSA-C.C. arts. 2811, 2813, 2814.
(C) Each party must have some proprietary interest in, and be allowed to exercise some right of control over, the business.
Marine Services, Inc. v. A-1 Industries, 355 So.2d 625, 628 (La.App. 4th Cir.1978).

The facts of the ease herein fail to show any of the requisite elements of such an agreement. Mr. Austin handled, as broker, the purchase and resale of the property. He loaned Mrs. Austin the purchase money for the house, received both commissions, and deposited the profits of the sale in his bank account. Both defendants claimed the house was purchased as a residence for Mrs. Austin, although prior to purchase from HUD, Mr. Austin may have formed the intention of selling the property to plaintiffs. Whatever the true purpose the purchase and subsequent sale to plaintiffs may have been, we cannot classify defendant’s actions as a joint venture.

Plaintiffs also assert. defendant’s liability for fraud under LSA-C.C. art. 1847. The evidence does not warrant such a holding. Legal fraud in Louisiana requires both intent to defraud as well as actual or probable damage. Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979). Proof of fraud must be clearly and convincingly established and not merely by a preponderance of the evidence. Hall, supra. While the evidence here reflects that defendant knew of a defect and failed to disclose it to plaintiffs, the facts do not indicate an intentional misrepresentation necessary for a finding of fraud. Thus, we find the allegation meritless.

Plaintiffs’ third theory asserts that defendant can be held liable in damages pursuant to either LSA-R.S. 37:1447 since repealed but in effect at the time of this action, and/or LSA-C.C. arts. 3016 and 3017. A review of the caselaw reveals a diverse and confused application of the aforementioned provisos by the courts to cases similar to the one before us. Because of the elusive nature of real estate agent and/or broker responsibilities under LSA-R.S. 37:1447 and LSA-C.C. arts. 3016 and 3017, this court prefers to resolve the issue on a less precarious basis, particularly since the articles provide no greater remedies than already exist at law.

Plaintiffs, as a last alternative, argue that defendant Austin’s knowledge of the house, its history and his subsequent failure to communicate the information constituted a breach of duty sufficient to subject him to liability in negligent misrepresentation. We agree. The Louisiana Supreme Court has recognized that LSA-C.C. arts. 2315 and 2316 afford a broad ambit of protection for persons damaged by intentional and negligent acts of others, sufficient to encompass a cause of action for negligent misrepresentation. Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979). Our courts have held that in order to apply negligent misrepresentation, there must be a legal duty to supply the correct information, and a breach of that duty causing damage to plaintiff. Hilliard v. La. Health Service & Indemnity Co., d/b/a La. Blue Cross, 411 So.2d 1116 (La.App. 4th Cir.1982) rehearing denied; Beal v. Lomas & Nettleton Co., 410 So.2d 318 (La.App. 4th Cir. 1982).

As noted previously, the courts have historically struggled with the nature and source of real estate broker and agents’ duties. However, the Supreme Court, without clarifying the source of the duty has also stated that:

The precise duties of a real estate broker must be determined by an examination of the nature of the task the real estate agent undertakes to perform and the agreements he makes with the involved parties. Latter and Blum, Inc. v. Richmond, 388 So.2d 368, 372 (La.1980).

A specific duty to communicate accurate information to seller or purchaser, or both when the circumstances warrant, is supported by the jurisprudence. Guidry v. Barras, 368 So.2d 1129 (La.App. 3rd Cir. 1979); Norgren v. Harwell, 172 So.2d 723 (La.App. 4th Cir.1965). In addition, realtors should be subject to liability for negligent misrepresentation when the facts warrant it due to the nature of the business. Purchasers in a competitive market must often act quickly. Real estate usually involves a significant expenditure. Where one broker negotiates for both vendor and vendee, it is particularly important that the broker-agent relay accurate information, since both parties are relying on his honesty, access to information, knowledge and expertise.

In the case herein, it is evident that defendant was the sole realtor involved in the negotiations and sale of the house to plaintiffs and that he failed to disclose a defect of which he had knowledge. Defendant does not dispute that he knew at the time he negotiated the purchase of the property for his mother that HUD had discovered foundation failure and for that reason had rescinded the sale to the prior owners. He maintained, however, that at no time did he believe the HUD officials, and that it was his and his carpenter’s opinions that the problems were attributable to termite damage.

Although disputed by Mr. Austin, we are satisfied the trial court correctly found that he failed to disclose this vital piece of information which conceivably would have prompted the purchasers to either reject the house or negotiate a lower price under all the circumstances and facts here, his negligent or intentional misrepresentation of, and failure to disclose, the facts clearly caused plaintiffs to suffer the losses of which they complain.

While this court recognizes that negligent misrepresentation as a legal remedy is in its infancy in Louisiana, it is a concept consistent with the purposes and policies of the Civil Code. If applied with restraint, its application to real estate agents and brokers would not unduly burden that profession. Since the facts here warrant a holding that Mr. Austin, as an agent and broker, breached a duty to plaintiffs to disclose a defect of which he had knowledge, we find defendant liable in damages.

ISSUES PRESENTED BY PLAINTIFFS’ APPEAL

The issues presented by plaintiffs are as follows: (1) Whether the trial court erred in limiting the Josephs reduction in price to $3,000; (2) Whether the trial court erred in limiting the award of attorney’s fees to the Josephs’ attorney to $500; and (3) Whether the trial court erred in failing to tax the expert fees of B.M. Dornblatt as costs against the defendant.

In reference to the first allegation, the trial court noted that figures estimating costs of repair were not in evidence, but based its finding on its “limited discretion.” Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir.1974). The evidence admitted was that the methods commonly used to repair a cracked slab would be either cost prohibitive, i.e., razing the property and rebuilding, or would involve a probability of further damage with little chance of success, i.e., mudjacking. For those reasons, the expert recommended no action at present, and repairing problems as they arise in the future. The HUD official also testified that HUD re-purchased the property from the prior owners because he found the home could not be repaired economically.

The liability of Mr. Austin is one in damages rather than redhibition. We may, however, be guided by the method to calculate reduction in order to assess the damages in this case.

In Menville, supra, at 862, the court stated, “... if the defects are numerous and repairs lengthy and frequent, a greater reduction is warranted, because a forewarned buyer would not reasonably pay the full price, reduced only by the cost of repairs .... ”

Based on the evidence, the court had the following to work with in calculating the fair value:

Purchase price from
HUD $11,500
Renovation costs $12,000 to $14,000
Sale price to plaintiffs $30,000
Cost to repair No figure given
Reduction $3,000
Court’s determination of fair market value at sale $27,000

Since the liability of defendant is in tort, defendant should not be allowed to profit in this transaction. When the' record clearly reveals that the trier of fact abused its discretion in making its award, the court of appeal must disturb that award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Assuming he made some improvements, and giving defendant benefit of the doubt at a minimum of $12,000 in costs, we find the value of the unwarranted property with improvements equals $23,500. Applying Menville, supra, we believe the correct amount for this portion of the damages to be $6,500, since it is unlikely plaintiffs would have purchased a house with foundation failure for $27,000 as found by the trial court.

Plaintiffs also testified to repairs they were forced to undertake due to the defect. After the act of sale, windows, floors and walls began cracking, thus necessitating extensive repair work and inconvenience. We think it reasonable to reimburse plaintiffs an appropriate amount for those costs as a further element of damages. The testimony of the experts that further repairs will likely be required moves this court to also include some future damages. Based on the foregoing, we conclude the proper amount of recovery is $2,500 for these items of damage.

The last two issues presented by plaintiffs are the assessment of attorney fees and the expert fee of $500. Since attorney fees are generally not recoverable in a tort action, we must reverse the trial court’s award in that respect.

The question, however, of Mr. Dornblatt’s expert fee is well taken and should be taxed as costs pursuant to LSA-C.C. art. 1920; LSA-C.C.P. art. 2164.

For the reasons assigned, the judgment appealed from is amended in part, reversed in part and recast so as to read as follows:

AMENDED IN PART, AFFIRMED IN PART AND RECAST.

      . The particular provisions of LSA-R.S. 37:1447(B) provides that “anyone” injured by a wrongful act of a broker or agent in furtherance of his business or injured by fraud or misrepresentation may sue for recovery of the damage. However, Part (A) deals with the requirement of a broker to secure a surety bond. The caselaw is unclear as to whether Part (B) only applies to actions on the bond.

      . LSA-C.C. art. 3016 declares that a broker owes the same fidelity toward all parties, and LSA-C.C. art. 3017 declares brokers liable, as other agents, for fraud or faults. Again, confusion exists in the law as to the applicability of these articles to real estate transactions in view of the statutory regulations.

      . See: The Real Estate Broker-Purchaser Relationship: Louisiana and the Common Law, 52 Tul.L.R. 157 (1977).


text:
    Ricky D. PARR v. Warren J. KELLY and Rosa Lee Kelly.
    No. 5-179.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    John M. Garic, Post, Reinhardt & Rouge-lot," Metairie, for plaintiff-appellant.
    Stephen A. Fritch, Metairie, for defendants-appellees.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court wherein Honorable Floyd W. Newlin dismissed all claims against defendants, Mr. Warren J. Kelly and Rosa Lee Kelly, pursuant to a Motion for Directed Verdict and held for defendant, Stan Weber and Associates, Inc., concluding plaintiff had failed to establish damages by the requisite preponderance of evidence.

Plaintiff, Ricky D. Parr, listed property for sale with Gloria Menge, a real estate agent employed by Stan Weber and Associates, Inc. Plaintiff was asking $59,500. Mr. and Mrs. Warren J. Kelly, acting through their Stan Weber agent Jacqueline St. Blanc, made a written offer to purchase said property for $59,500. The offer was accepted by plaintiff and on April 28, 1979, an Agreement to Purchase contract was entered into by plaintiff, as seller, and Mr. and Mrs. Kelly, as purchasers. The final act of sale was to be passed on or prior to June 15, 1979. As stipulated by the contract, the purchasers were to pay $20,000 as a cash down payment and finance the $39,-500 balance. Purchasers obtained the necessary financing. However, the June 15th deadline passed without an act of sale taking place. Neither party placed the other in default.

Plaintiff brought suit against Mr. and Mrs. Kelly for actively breaching the contract. Subsequently, plaintiff amended to include as defendant Stan Weber and Associates, Inc., alleging said agency to have breached their brokers’ duty and thus causing petitioner to suffer damages. This action was heard April 22, 1981, and on April 24, 1981, the trial court granted a motion for Directed Verdict dismissing all claims against the defendants, Mr. and Mrs. Kelly. On June 10, 1981, the trial court found that despite a breach of duty by agents of defendant Stan Weber and Associates, Inc., plaintiff failed to establish damages by the requisite preponderance of evidence. Plaintiff appeals both judgments.

On appeal, plaintiff-appellant asserts the trial court erred in granting the Motion for a Directed Verdict when it found defendants, Mr. and Mrs. Kelly, had not actively breached the contract and further found that a failure to place said defendants in default precluded any recovery under the contract. Plaintiff-appellant contends the trial court further erred in finding he had failed to establish his damages against Stan Weber and Associates, Inc. by a preponderance of the evidence.

When an action has been dismissed pursuant to a Motion for Directed Verdict, LSA-C.C.P. art. 1810(B) requires the judge, in a nonjury case, to weigh and evaluate all the evidence presented up to that point and grant a dismissal only where the plaintiff has failed to establish his claim by a preponderance of the evidence. Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980). Proof by a preponderance of the evidence simply means when taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971).

Plaintiff-appellant argues the Kellys actively breached the buy/sell agreement when they refused to go through with the act of sale, thereby vitiating the necessity of placing them in default. We do not agree.

Problems began when the appraisal came back at $55,000, $4,500 short of the agreed purchase price. The Kellys testified that they remained willing at all times to go through with the sale at the agreed price. Mr. Kelly testified that his agent, Mrs. St. Blanc, told him .that she hated to see them pay the extra money and that she would get in touch with her agency’s attorney to see what could be done. Mr. Kelly further testified that Mrs. St. Blanc later advised him that they did not have to buy the house at the agreed price because of the appraisal. Mr. Kelly then informed Mrs. St. Blanc to see if she could work out something to get them in the house. The Kellys were then under the impression that the price was being renegotiated and they testified they left matters in the hands of the realtor and waited to be notified of a closing date. The Kellys were never made aware of a closing because neither agent took any steps nor made arrangements to establish a date for closing. The date the act of sale was to occur on or prior to passed with no action taken. Thus, the agreement expired by its own terms.

In applying the proper standard of review, we find no error in the trial court’s granting a directed verdict. After a review of the record and evidence adduced, we come to the same conclusion that plaintiff failed to establish an active breach by a preponderance of the evidence.

We find, further, no error in the trial court’s refusal to grant plaintiff damages as a result of the breach of duty by defendant Stan Weber and Associates, Inc. We, as reviewing court, may not substitute our own judgment for that of the trier of fact. Instead, we are relegated to the position of determining whether the trier of the case has abused its “great discretion.” Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Plaintiff-appellant alleges the suffered damages included lost revenue from rentals, loss of deposit, humiliation and em-barassment. However, a close inspection of the record revealed no evidence or testimony as to any of the alleged damages. We arrive at the same conclusion reached by the trial judge and find no abuse of discretion.

For the above foregoing reasons, the judgment of the trial court dismissing plaintiff’s action is affirmed.

AFFIRMED.

      . Art. 1810(B). “In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”


text:
    Harry M. KATZ v. INTERCOASTAL WAREHOUSE CORPORATION OF LOUISIANA.
    No. 5-234.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Robert C. Funderburk, Jr., Robert C. Funderburk, Jr., Ltd. (A Professional Law Corp.), Baton Rouge, for plaintiff-appellant.
    William V. Dunne, Westwego, for defendant-appellee.
    Before SAMUEL, CURRAULT, and DU-FRESNE, JJ.
   CURRAULT, Judge.

This appeal arises from the Twenty-Fourth Judicial District Court, Division “J”, wherein the Honorable Jacob L. Karno dismissed plaintiff’s suit pursuant to defendant’s peremptory exception of prescription.

The suit resulted from a claim for a lost import-interstate shipment of seven cartons of silk flowers plaintiff ordered in July, 1978, from Hong Kong. The cartons were shipped by container. Once reaching the West Coast of the United States, the container was trans-shipped by rail on a Southern Pacific Railroad flatcar to their yards at Avondale, Louisiana. From Avondale, the container was delivered in November, 1978, by truck to Intercoastal Warehouse for unloading pending final instructions of the consignees as to the method to be used in getting the freight to its final destination.

Plaintiff alleges the loss occurred sometime between November, 1978 and June, 1979. Subsequently, plaintiff filed suit on August 6,1981. Defendant filed a peremptory exception of prescription which asserted that plaintiffs action had prescribed by liberative prescription of either one or two years. Defendant supported its exception by stating it was an agent of the Texas & Pacific Railroad and further stressed the applicable prescriptive periods were either LSA-C.C. art. 3536 or LSA-R.S. 45:1100. Defendant’s exception was maintained and plaintiffs suit was dismissed by judgment dated and signed September 28, 1981. Plaintiff has appealed that judgment. We note that the matter was submitted only on the pleadings; no evidence was offered by either litigant.

After reviewing the factual pleadings, we find the nature of the action asserted by plaintiff is one in tort. Plaintiff has couched his petition in negligence and bases his recovery for damages solely on the negligence of the defendant. Accordingly, the applicable prescriptive period is one year, LSA-C.C. art. 3536, and plaintiffs petition indicates on its face that his action has prescribed.

For the above stated reasons, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Frank HOWARD v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products Corp. and Gold Bond Building Products (National Gypsum) and Kemper Insurance Agency.
    No. 5-334.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.

      M.H. Gertler, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Thomas M. Nosewicz, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Lawrence K. Benson, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, CURRAULT and DU-FRESNE, JJ. *
   CURRAULT, Judge.

This appeal arises from a judgment of the trial court dismissing plaintiff’s action seeking recovery for workmen’s compensation benefits from the defendants Johns-Man-ville Sales Corporation (hereinafter referred to as J-M), Gold Bond Building Products (hereinafter referred to as National Gypsum), Kemper Insurance Agency, and Connecticut General Life Insurance Company.

Plaintiff-appellant was employed as a laborer by J-M from 1949 to 1970. During his tenure, he worked in the shingle department, the tile plant, and for a number of years assisted in the unloading of asbestos fibers. In 1970, Mr. Howard was “laid off” and subsequently was employed by National Gypsum. His duties there consisted of operating a lift truck and laboring on the bundling machine. National Gypsum used asbestos fibers in its operations from 1972 to 1975, at which time the use of asbestos was permanently discontinued.

At some time during his employment with National Gypsum, plaintiff began to experience chest pains, shortness of breath and fatigue. He ultimately sought medical advice for his condition and in August, 1980, was examined by Dr. Morton Brown, a pulmonary disease specialist. Dr. Brown diagnosed his condition as pneumoconiosis and recommended that he not return to work in a dusty environment. As a result, plaintiff-appellant terminated his employment with National Gypsum and has not worked at any other job since leaving National Gypsum in 1980.

Following this development, Mr. Howard filed a claim for workmen’s compensation which was denied. Consequently, Mr. Howard filed this workmen’s compensation suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson on November 14, 1980, against J-M, National Gypsum, and Kemper Insurance Agency. Plaintiff requested workmen’s compensation benefits along with statutory penalties and attorney’s fees as provided for by the Louisiana Workmen’s Compensation Law. Answers to the suit were filed by the defendants, along with a petition for intervention on behalf of Connecticut General Life Insurance Company, issuer of a group policy for medical insurance to National Gypsum.

A trial of this matter was held on October 6, 1981 before the Honorable Robert j. Burns, Judge. In a judgment rendered on October 8,1981, the trial court held that the plaintiff failed to prove his ease by a preponderance of the evidence and dismissed plaintiff’s claim at his cost.

Following denial of his application for new trial, plaintiff perfected this appeal.

The primary issue presented for our consideration is whether plaintiff has carried his burden of proof in establishing that he contracted an occupational disease pursuant to LSA-R.S. 23:1031.1 as a result of his employment with either or both defendants.

It is well established that plaintiff in a workmen’s compensation case must prove a disability which is related to the employment related disease by a preponderance of the evidence. Laureadine v. Fischbach & Moore, Inc. and ABC Insurance Co., 398 So.2d 1220 (La.App. 4th Cir.1981). Before the question of disability can be addressed, plaintiff must prove he contracted a disease during the course of his employment, and as a result of the nature of his work. Bates v. Bituminous Casualty Corp., 266 So.2d 556 (La.App. 3d Cir.1972).

A review of the plaintiff’s employment history reveals that he was exposed to asbestos fibers during his 21 years of employment with J-M. In addition, he was possibly exposed to various dusts including asbestos fibers while he was employed with National Gypsum. The trial court heard conflicting expert testimony regarding the cause of plaintiff’s symptoms. Plaintiff’s treating physician and expert, Dr. Morton Brown, is a specialist in internal medicine and pulmonary diseases. He diagnosed plaintiff as having pneumoconiosis, a medical classification encompassing lung diseases caused by dusts of various types; specifically, that plaintiff was suffering from asbestosis, a disease related to the inhalation of asbestos dust fibers. Dr. Brown concluded that given plaintiff’s history of exposure to asbestos, his finding of pleural plaques and fibrosis, a diagnosis of asbestosis was indicated. Defendant’s experts, Dr. David Harllee, an expert in diagnostic radiology, and Dr. Hans Weill, an expert in internal medicine and pulmonary disease, disagreed with that diagnosis. The testimony of the medical witnesses did concur in that plaintiff was suffering from bronchitis, had an airway obstruction and pleural plaques or thickened pleura of the lungs, and that pleural plaques can be an indicator or effect of asbestosis exposure. However, Doctors Weill and Harllee stated the extent of pleural thickening was minimal, could as well be caused by smoking, was within normal limits and could not contribute to plaintiff’s shortness of breath. Dr. Weill testified that the bronchitis and airway obstruction were not directly related to asbestos inhalation, but more likely caused by smoking. While plaintiff admitted to smoking one-half a pack of cigarettes a day for many years, he stated that he had quit three years earlier.

The defendant’s physicians also disputed the conclusions drawn by plaintiff’s expert in regard to the patient’s X-rays. Dr. Brown found evidence of fibrosis or scarring of the lungs, a condition which is a chief manifestation of asbestosis Doctors Weill and Harllee, on the other hand, identified the indicators relied on by Dr. Brown as blood vessels. Finally, Dr. Brown stated that plaintiff was suffering from emphysema, a lung condition Dr. Weill also failed to find. None of the physicians found any other evidence of asbestosis.

The trial court, after viewing all the evidence, concluded that plaintiff failed to prove the existence of any occupational disease by a preponderance. Our review of that finding is limited to a determination of whether the trial court was clearly or manifestly in error. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Based on the facts as adduced, we cannot find that the trial court’s conclusion was manifestly wrong, even recognizing that greater weight should be given to a treating physician’s testimony. Schouest v. J. Ray McDermott & Company, Inc., 411 So.2d 1042 (La.1982). However, while we must affirm dismissal of plaintiff’s action, our conclusion does not preclude plaintiff from any future relief.

It is commonly known that the type of injury plaintiff complains of is a progressive disease and conclusive symptoms and evidence may not manifest for as long as twenty years. The possibility exists here, due to plaintiff’s long history of exposure to asbestos, that he may experience a lung disease attributable to his employment at either defendant company in the future. Accordingly, and in line with the Supreme Court’s decision in Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976) as well as the Fourth Circuit Court’s decision in Laurendine v. Fishbach & Moore, Inc. and ABC Insurance Company, 398 So.2d 1220 (La.App. 4th Cir.1981), we affirm the trial court’s holding but amend so as to dismiss the action without prejudice, thereby reserving to plaintiff the right to file another compensation claim if and when the medical facts warrant and the law permits.

Since the plaintiff failed to prove the existence of an occupational disease, there is no necessity to review the remaining issues raised by appellant in this case.

For the reasons assigned, the judgment appealed from is amended so as to dismiss plaintiff’s suit without prejudice. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.


author: GRISBAUM, Judge.

text:
    Lawrence OWENS, et ux. v. HARTFORD INSURANCE CO., et al.
    No. 5-109.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1982.
    Leon C. Vial, III, Hahnville, Edward L. Levert, Jr., New Orleans, for plaintiffs-appellants.
    Lobman & Carnahan, Edward P. Lobman and David V. Batt, Paul P. Rutledge, Me-tairie, for defendants-appellees.
    Before CHEHARDY, BOWES and GRISBAUM, JJ.
   GRISBAUM, Judge.

This is a personal injury case in which liability was stipulated. Plaintiffs, Lawrence M. Owens and his wife, Betty Gray Owens, appeal the amount of damages awarded. We affirm.

Mr. and Mrs. Owens were injured in a collision on November 30, 1978 when an automobile driven by Joachim J. Fernandez and rented by him from American International Rent-A-Car struck the rear of the Owens’ vehicle. They sued Mr. Fernandez and Hartford Insurance Company for damages and later supplemented their petition to include American International Rent-A-Car claiming that Mr. Owens was entitled to property damage along with damages for pain and suffering, mental anguish and inconvenience, and loss of wages and that Mrs. Owens was entitled to damages for pain and suffering, mental anguish and inconvenience, and future pain and suffering. At trial defendants stipulated to negligence and liability; the matter was submitted solely on the issues of whether injuries and property damages were sustained and the measure of damages necessary to compensate plaintiffs for these. After hearing testimony from Mr. and Mrs. Owens and studying exhibits and reports entered into evidence, the trial court granted judgment in favor of plaintiffs in the following manner: To Lawrence M. Owens, $1000 for personal injuries and $2555 for property damage, and to Betty Gray Owens, $3500 for personal injuries.

Basically, Mr. Owens suffered a whiplash injury to his neck and back which caused him pain for three to four months. He had tenderness in the paravertebral cervical muscle bundles and moderate limitation of rotation of the cervical spine. He was not hospitalized; however, he was administered medication and medcosonolator treatments for over a month. Examination by a physician of Mrs. Owens revealed tenderness over the paravertebral cervical muscles and bones and tenderness in both shoulders together with some myositis in that area. She was treated for five months with diathermy, medication, and a cervical collar. During this time due to her continued complaints of headaches and neck pain, a neurosurgeon examined her in January of 1979. Finding that she suffered from a cervical muscular strain and possibly a cervical nerve strain, he recommended symptomatic and conservative treatment. Through the five months of treatment she complained of considerable pain in her neck and shoulders. Moreover, Mrs. Owens still suffers headaches and painful “catches” in her neck and shoulders.

The only issue is whether the trial court abused its discretion in making its award for damages. Louisiana Civil Code Article 1934(3) and Louisiana Supreme Court cases set forth the principles of appellate review for assessment of general damages. Article 1934(3) provides that in assessing general damages, “much discretion must be left to the judge or jury . ... ” Applying Article 1934(3) to review of damage awards, Supreme Court decisions have indicated a methodology for this review. See Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, 341 So.2d 332 (La.1976); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Ballard v. National Indemnity Co., 246 La. 963, 169 So.2d 64 (1964); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). Only if the record “clearly reveals” that the trier of fact abused its discretion in making its award of damages, can we disturb an award of the trial court. Coco, 341 So.2d 332, 335. We find no clear abuse of discretion in this case. As Lomenick explained, the rationale behind appellate review of general damages is to give effect to the large discretion given to the trier of fact in determining the amount of damages. Lomenick, 200 So.2d 127, 132.

Appellants cite several cases involving larger amounts for similar injuries to support their contention that the awards are inadequate. While involving cervical strain, there are other facts in each case which make them in fact dissimilar to the case at bar. In determining whether there has been an abuse of discretion, we are aided by damage awards in other cases, but we primarily look to the facts and circumstances peculiar to this case. Miller, 246 So.2d 16,19. Moreover, similar cases act as an aid when it can be shown that the award is “greatly disproportionate” to past awards (not selected past awards, but the mass of them) for “truly similar” injuries. Reck, 373 So.2d 498, 501. Our review of similar injury cases shows that the award is not greatly disproportionate.

We affirm the trial court’s award of $3500 to Mrs. Owens and $1000 to Mr. Owens. The costs of this appeal are assessed to the appellants.

AFFIRMED.