author: SWIFT, Judge. DOMENGEAUX, J., concurring. SWIFT, Judge.

text:
    Elmo E. MELDER, Plaintiff-Appellee, v. CENTURY TELEPHONE ENTERPRISES, INC., et al., Defendant-Appellant.
    No. 8731.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    On Rehearing April 30, 1982.

      Jeansonne, Briney & Lewis, Owen M. Goudelocke, Lafayette, for defendant-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Kathleen Overcash, Lafayette, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

This is a worker’s compensation suit to recover benefits for total permanent disability and for penalties and attorney’s fees. From a judgment in favor of the plaintiff, Elmo E. Melder, the defendants, Century Telephone Enterprises, Inc. (Century), and its insurer, Hartford Accident and Indemnity Company (Hartford), have appealed.

At the time of trial plaintiff was 59 years of age with an eleventh grade education. He had been engaged in hard physical labor all of his working life. For about the past 27 years Mr. Melder has been employed by the three telephone companies which successively owned the Ville Platte and Evangeline Parish facilities. He initially was employed as a cable splicer’s helper. Subsequently, he acquired a position as a telephone installer-repairman and two or three years ago he was promoted by Century to the position of a combination man. As an installer-repairman and also a combination man plaintiff was required to crawl under houses, go into attics and climb ladders and telephone poles. He often climbed from four to 30 poles per da^ and had to carry between 40 and 50 pounds of equipment attached to his waist during the performance of these duties. Mr. Melder is a relatively short man of slight body build. His last day of employment with Century was November 14, 1980. At this time his wages were $374 per week.

The plaintiff testified that initially he hurt his back in a vehicular collision on July 2, 1975, while engaged in his employment. H,e returned to work after a couple of days. Before this accident Melder had experienced no problems with his back. Over the next five years his back, pain became progressively worse, depending on how much climbing he was required to do. After two operations unrelated to his job in the summer of 1980, the plaintiff returned to work on September 29, 1980. Because of continued pain in his back, he decided to take his earned vacation time on November 14,1980, and see a physician about the problem. After the physician told him that he could no longer perform the duties of his job, the plaintiff discussed the matter with his supervisor and was told to apply for disability benefits under a group insurance policy covering Century’s employees. He did so, but the company refused and placed him on regular retirement under a company stock plan. Plaintiff received his last pay cheek on February 16, 1981, and has never received any benefits for his disability.

Dr. Gordon Soileau testified he had been plaintiff’s family physician for 25 years and that Melder had suffered numerous problems with his back. In 1971 he was treated for fibromyositis of the lower lumbar area and a lumbar muscle spasm. In 1974 the plaintiff’s x rays revealed a vertebral condition called “Sehmorl’s nodes,” a protusion of the disc into the body of an adjacent verta-brae. Once in 1975 after the auto accident, twice in 1976 and on an examination in 1978 the plaintiff was diagnosed as having lumbar muscle strains. Except for the 1975 accident, Mr. Melder never mentioned any injury as the basis of his back complaints. This doctor thought that the repeated trauma involved in his employment could have been an eroding factor in the plaintiff’s condition.

Dr. James R. Lafleur, an orthopedic surgeon, saw the plaintiff in October, November and December of 1978 and concluded that he was suffering from a chronic lum-bosacral myofascial strain with L4-5 left facet arthrosis. He found no evidence to indicate that plaintiff was suffering from a herniated disc. The doctor prescribed conservative treatment and discharged Melder as “improved” in December. He could not say whether or not the 1975 collision caused the conditions which he treated.

Dr. J. Frazer Garr, an orthopedic surgeon, testified that he examined the plaintiff on July 3, 1975, following his accident and diagnosed his condition as a strain of the left hip region. There was no evidence of spinal cord compression or nerve root irritation. On November 21, 1980, he was seen again with complaints of increased pain. Several tests were made, including a myelogram which showed that plaintiff suffered from a herniated disc at L4-5 level. In this doctor’s opinion the plaintiff had a 20% permanent impairment of the body as a whole and he was not fit for any moderate or strenuous type of work. He doubted that Melder could “perform any particular activities which would afford him gainful employment. ...” Dr. Garr testified that plaintiff’s back trouble possibly started with the auto wreck in 1975, but he believed that the disabling disc condition resulted from the repeated traumas sustained by the plaintiff in his work.

The report of Dr. F. Lionel Mayer, an orthopedic surgeon who examined Melder on June 22, 1981, apparently at Century’s request, states that the plaintiff has evidence of nerve root irritation on the left. However, this physician was unable to determine whether the plaintiff’s back problem was a direct result of the accident in 1975 or of his occupation as a lineman or a combination of both. He would not advise that Melder return to work as a lineman involving climbing or heavy lifting, but he is able to do lighter work.

The defendants specify as error on this appeal the trial court’s findings that: 1) The plaintiff suffered an accident within the intendment of the Louisiana workmen’s compensation statutes; 2) The defendants were arbitrary, capricious and without probable cause in failing to pay the plaintiff compensation benefits; and 3) The plaintiff’s weekly compensation rate was $166 and he was entitled to such benefits commencing on November 14, 1980.

Our workmen’s compensation law provides benefits for an employee who is disabled because of an on-the-job accident. LSA-R.S. 23:1031. Section 1021(1) of Title 23 contains the following definition:

“(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.”

Although the statutory definition of “accident” is rather restrictive, our jurisprudence has given an extremely broad interpretation to that word, holding that “when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown the statutory requirements for an accidental injury are present.” Fergusen v. HDE, Inc., 270 So.2d 867 (La.1972). See also Harper v. Kast Metals Corp., 397 So.2d 529 (La.App. 2 Cir. 1981), writ denied 401 So.2d 988 (La. 1981); Miller v. Olinkraft, Inc., 395 So.2d 905 (La. App. 2 Cir. 1981); and Malone and Johnson, Workers’ Compensation, 2d Ed. Sections 211-217 (1980), Louisiana Civil Law Treatise.

Several cases which dealt with similar factual situations as the present case are Chism v. Kaiser Aluminum and Chemical Corporation, 332 So.2d 784 (La.1976), and Lemoine v. Marksville Industries, Inc., 391 So.2d 528 (La.App. 3 Cir. 1980), writ denied 396 So.2d 1325 (La.1981). In Chism the plaintiff performed heavy manual labor at the defendant’s plant for several years. He stepped in a hole and sought medical treatment for back pain at the company first-aid station. Within seven months after this incident plaintiff also sought medical treatment twice for back pain suffered at work. Eventually the pain became so severe that he was hospitalized. The final diagnosis was a herniated disc. The Supreme Court held:

“It is true that the record does not establish which of the several occupational incidents finally ruptured the disc. We find that it does establish, however, that one or more of the accidents on the job aggravated plaintiff’s back condition to the extent that he became disabled. Thus, under the jurisprudence, the plaintiff has discharged his burden of proof.”

In Lemoine the plaintiff was employed as a pants presser. She would press the pants, turn to the left and hang them on a rack. This procedure was performed approximately 960 times a day. After about a year oh the job she began experiencing pains in the lower part of her back which became progressively worse. Her condition was finally diagnosed as a herniated disc in the mid-back region. Following Chism, this court held:

“Although the evidence does not show what specific incident caused her first back pain, or which incident finally herniated the disc, the evidence clearly shows the numerous rapid twisting and turning movements required by her duties aggravated plaintiff’s existing back condition, whatever its origin, to the extent that she finally became disabled. Clearly, the trial judge was not manifestly erroneous in his factual ■ conclusion that plaintiff proved a job-related accident caused the herniated disc.”

The Court of Appeal, Fourth Circuit, applied the same rule in Scanlan v. Bernard Lumber Co., Inc., 365 So.2d 39, (La.App. 4 Cir. 1978).

Considering the jurisprudence, it is clear that the plaintiff here has sustained his burden of proving that a series of work-related accidents caused his disabling injury. The evidence shows that the accident in July, 1975, caused his first back pain. However, it does not clearly show that this incident or any other single incident actually herniated his disc. The medical evidence and the plaintiff’s testimony show that the climbing of poles and ladders, as well as plaintiff’s other duties as an installer-repairman and combination man, aggravated his back condition to the extent that he finally became disabled. We agree with the trial judge’s determination that the plaintiff proved his total and permanent disability is compensable.

The second issue raised by this appeal is whether Century was arbitrary, capricious and without probable cause in failing to pay the plaintiff workmen’s compensation benefits. Alternatively, the defendant argues that the award of $4500 for attorneys’ fees was excessive.

The trial court’s conclusion that the failure to pay plaintiff’s benefits was arbitrary, capricious and without probable cause is partially a factual determination and should not be disturbed on appeal in the absence of manifest error. Cullivan v. Fish Engineering & Const. Co., Inc., 354 So.2d 597 (La.App. 3 Cir. 1977), writ not considered, 355 So.2d 254 (La.1978).

In the present case the plaintiff testified that he stopped working on November 14, 1980. He discussed his condition with his superiors and on their advice requested disability retirement benefits from Century in December, 1980. The company placed him on regular retirement instead. Although he was paid his salary to February 16, 1981, the only explanation in the record for the payment thereof after he ceased working on November 14 is the plaintiff’s testimony that this was for unused vacation time. He has never received any workmen’s compensation or other benefits for his disability. Dr. Garr sent the employer medical reports of plaintiff’s disability on December 9, 1980, and January 7, 1981. The medical testimony shows that the plaintiff was disabled as a result of cumulative job-related injuries and is entitled to worker’s compensation benefits under the above authorities. The defendants sought no medical advice as to the cause of his disability until after suit was filed and offered no testimony as to why the compensation was never paid. The plaintiff testified that the company representative informed him that he was not considered disabled if he could get out of bed. Under these circumstances we cannot say that the trial court committed manifest error in awarding penalties and an attorney’s fee. Lee v. National Tea Co., 378 So.2d 134 (La.App. 3 Cir. 1979).

The amount awarded as attorney’s fees rests largely on the discretion of the trial court. Each case must be decided in the light of its own facts and circumstances, bearing in mind that the fee awarded must be reasonable. Crooks v. Southern Casualty Insurance Company, 337 So.2d 915 (La.App. 3 Cir. 1976).

In the instant case the trial was completed in one day and only two witnesses were called by the plaintiff. However, four depositions were taken, two of which were taken out of town. The depositions of the three physicians involved rather complex medical testimony. While the $4500 attorney’s fee award appears high, we are unable to say that it is beyond the maximum limit of the trial judge’s discretion. See Coulton v. Levitz Furniture Corporation, 391 So.2d 80 (La.App. 4 Cir. 1980).

The plaintiff is seeking an additional amount for his attorney’s services on appeal. We conclude that $4500 adequately compensates plaintiff’s counsel for the work performed both in the trial court and on appeal.

The defendants also assert that the trial court erred in its determination that the plaintiff’s disability began on November 14, 1980. They contend he failed to establish just when this occurred and therefore is not entitled to compensation benefits. We disagree.

The compensation award should begin when the pain resulting from an accident becomes disabling. Hartsell v. Hooker Chemical Corporation, 288 So.2d 417 (La. App. 4 Cir. 1973), writ denied 292 So.2d 243 (La.1974). The testimony of the plaintiff reveals that his back was hurting him most of the time he was climbing and bending and more so during the two weeks he worked in November, 1980. So he then decided to use his vacation time to seek medical advice and treatment. After visiting Dr. Soileau he was referred to Dr. Garr who saw him on November 21, 1980. On January 7, 1981, the plaintiff’s condition was diagnosed as a herniated disc and he was told not to resume his former duties. Considering this testimony, we cannot say that the trial court committed manifest error in determining that the plaintiff’s disability began on November 14, 1980.

Lastly the defendants contend the rate of plaintiff’s weekly compensation benefits is $163 instead of the $166 awarded by the trial court.

Counsel for the parties stipulated that if plaintiff is successful in this suit he is entitled to the maximum weekly compensation provided by law. They were to furnish this amount to the trial court later. However, the record does not reflect that this was done, nor does it contain any evidence as to the average weekly wage in all employment subject to the Louisiana Employment Security Law from which the maximum compensation for plaintiff’s disability must be determined in this case. LSA-R.S. 23:1202.

In view of this insufficiency of the record, we will have to remand the case for determination by the trial court of the amount of the plaintiff’s weekly compensation unless the parties can now agree what the maximum weekly compensation rate was in this state on November 14, 1980. If they can do so, then we will consider their stipulation on an application for rehearing filed by either party and render the appropriate decree.

For the reasons assigned, the judgment appealed from is affirmed, except as to the amount of the weekly compensation benefits awarded to the plaintiff, and the case is remanded to the district court for its reconsideration and determination of such sum unless the parties are able to agree as aforesaid. The costs of this appeal will await final judgment.

AFFIRMED IN PART AND REMANDED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, J.,

concurring.

I agree with the majority opinion and its result. I do not necessarily agree however, that the $4,500.00 attorney fee appears high, but in view of all aspects of this case, it is probably adequate for work performed both at trial and on appeal.

ON REHEARING

SWIFT, Judge.

Since our original decision was rendered both parties have stipulated that the maximum weekly compensation rate in Louisiana on November 14, 1980, was $163 per week. They have jointly applied for a rehearing limited to consideration of the stipulation. A rehearing has been granted solely for this purpose. Having considered the stipulation filed herein, we conclude that the rate of weekly compensation to which the plaintiff is entitled in this suit is $163. We therefore amend our original decision and decree.

For the reasons assigned, the judgment of the district court appealed from is amended so as to reduce the amount of weekly compensation benefits awarded therein to plaintiff from $166 to $163. As amended, the judgment is affirmed in all other respects. The costs of this appeal are assessed to the defendants-appellants.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Lucas Jay CARUSO v. Pamela Marie Knauer, Wife of Lucas Jay CARUSO.
    No. 13148.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 30, 1982.
    Richard A. Tonry, Chalmette, for defendant-appellant.
    Glenn Diaz, Chalmette, for plaintiff-ap-pellee.
    Before SCHOTT, BYRNES and WARD, JJ.
   SCHOTT, Judge.

On our own motion we questioned jurisdiction over this appeal because it appeared it was taken untimely.

The following chronology is pertinent:

July 17,1981 Judgment signed
July 28,1981 Last day for filing application for new trial — C.C.P. Arts. 1973-1974
August 27,1981 Last day to appeal — C.C.P. Art. 3943
October 6,1981 Appeal taken

Although appellant filed a motion for new trial (rehearing) on August 7,1981, this did not toll the applicable delay for taking the appeal because it was filed beyond the last day permitted under C.C.P. Arts. 1973 and 1974. McQuillin v. Ezernack, 331 So.2d 125 (La.App. 3rd Cir. 1976); Baldo v. Thibodeaux, 295 So.2d 866 (La.App. 4th Cir. 1974).

Accordingly, the appeal is dismissed.


author: EDWARDS, Judge.

text:
    Shirley Woods BLACKWELL v. Dewey W. BLACKWELL.
    No. 14698.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Fannie Burch, Amite, for plaintiff.
    A. Wayne Stewart, Denham Springs, for defendant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Shirley Blackwell, filed suit against her husband, Dr. Dewey Blackwell, seeking a separation from bed and board, custody of their two minor children, alimony, child support and injunctive relief. Cruel treatment was alleged as the grounds for the separation. Dr. Blackwell filed an answer denying the allegations of the petition and filed a reconventional demand for a separation from bed and board also based upon allegations of cruel treatment. Subsequently, Dr. Blackwell filed a supplemental petition, requesting a separation from bed and board based upon mutual fault.

After trial, the trial judge took the matter under advisement and later rendered judgment in favor of appellant, granting her a separation. This judgment also incorporated the parties’ agreement as to custody, child support and alimony. No reasons for judgment, oral or written, were given.

Dr. Blackwell’s motion for a new trial, and Mrs. Blackwell’s motion to re-open the case to consider a single portion of the judgment, were granted and a new trial was held on September 5, 1980. With the exception of one provision not relevant to this appeal, the previous judgment was reinstated by the trial judge for oral reasons given at the conclusion of the hearing.

Defendant’s initial appeal was remanded to the trial court because of the trial judge’s failure to sign the amended judgment. Blackwell v. Blackwell, 399 So.2d 703 (La.App. 1st Cir. 1981). The amended judgment was signed by the trial judge on April 6,1981, and defendant has perfected a devolutive appeal.

Dr. Blackwell contends that the trial court erred in awarding his wife a separation and in denying his reconventional demand against his wife. Alternatively, Dr. Blackwell asserts that the trial court should have granted a separation based on mutual fault.

Mrs. Blackwell’s petition asserted that she was entitled to a separation on the basis of her husband’s cruel treatment of such a nature as to render their living together insupportable. The petition made allegations of physical and verbal abuse by Dr. Blackwell. At trial, Mrs. Blackwell testified with regard to the incidents of abuse to which she allegedly was subjected. A number of members of her family also testified that they had seen bruises on the plaintiff on a few occasions. Mrs. Blackwell also claimed that her husband often had affairs with other women.

The trial court, in oral reasons for judgment, made the following findings:

“Now, let me make one thing abundantly clear. It was not the ruling of this Court in it’s (sic) judgment of July 9, 1980, that Dr. Blackwell was a wife-beater. It was not my ruling, not my finding, that he was a wife beater, or that he had committed adultery. The Court felt that the accumulation of circumstances and events, maybe as a result or necessity of the practice of medicine and the devotion to the healing of the sick, I felt that there had been neglect to the extent that Dr. Blackwell was at fault. Nothing I’ve heard today changes my opinion, but again, it was not my decision, not my feeling that he was a wife beater. There was no corroboration of the charges of adultery.”

These reasons for judgment clearly indicate the trial judge’s conclusion that plaintiff failed to prove either physical abuse or adultery by Dr. Blackwell. They further indicate that Mrs. Blackwell was granted a separation by the trial court on the ground of neglect.

Defendant contends that the trial court erred in awarding a separation in favor of plaintiff in light of the factual findings that there was no proof of physical abuse or adultery. He further asserts that there was no proof of neglect which would justify an award in favor of Mrs. Blackwell. We agree.

As noted above, the trial court found that plaintiff was not guilty of adultery or of abusing his wife. These determinations are findings of fact which are entitled to great weight on review, particularly in domestic cases such as the present one, where factual findings largely depend upon a determination as to the credibility of witnesses. Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980), writ denied, 386 So.2d 358 (1980); Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir. 1976). Such factual findings should be reversed only upon a finding of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Douglas v. Douglas, supra. Our review of the record reveals no such error.

Therefore, the issue which we are called upon to resolve is whether the trial court properly granted Mrs. Blackwell a separation on the basis of her husband’s “neglect.” Neglect, as such, is not contained in the list of causes for separation set down in LSA-C.C. art. 138. It is likely, however, that the trial judge concluded that defendant’s neglect constituted cruel treatment under LSA-C.C. art. 138(3). In order to constitute cruel treatment under LSA-C.C. art. 138(3), the abuse suffered need not be physical, but may be in any form which renders living together insupportable. Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).

There is absolutely no proof in the record of any neglect by defendant insofar as support, maintenance and caring for his wife and children are concerned. Rather, the neglect which the trial court found defendant guilty of is that which is “a result or necessity of the practice of medicine and the devotion to the healing of the sick. . . . ” This “neglect” which the trial court relied upon stems from the extremely long hours that Dr. Blackwell works and the amount of time which he spends away from home.

Dr. Blackwell is a native of Hammond, Louisiana, who returned home three years ago after completing his internship. Dr. Blackwell is engaged in a private practice which occupies a large portion of his time. He testified that his ordinary day starts at the hospital at 8:00 A.M., where he makes rounds to see his patients. He then sees patients at his office from 9:00 A.M. to 5:00 P.M., but usually gets through later than 5:00 P.M. Dr. Blackwell testified that sometimes he goes home to supper prior to evening rounds at the hospital, but sometimes he does not. He testified that it is not uncommon for him to be at the hospital until late at night. Additionally, Dr. Blackwell often works on weekends and late at night in the hospital emergency room. Dr. Blackwell testified that he worked these long hours because he loves medicine and he is trying to establish a successful medical practice.

The trial court erred in awarding Mrs. Blackwell a separation on the basis of this “neglect.” We do not believe that the actions of the defendant, a young doctor working long hours in order to develop a successful medical practice, constitute deliberate neglect on his part which amounts to cruel treatment for purposes of LSA-C.C. art. 138. See Dueros v. Ducros, 156 La. 1033, 101 So. 407 (1924). Therefore, the judgment awarding a separation in favor of Mrs. Blackwell must be reversed.

Dr. Blackwell further contends that the trial court erred in failing to award a judgment of separation in his favor. According to appellant, he is entitled to a judgment of separation because of the following actions by his wife: 1) constantly accusing him, without cause, of infidelity; 2) ordering him to leave the matrimonial domicile and threatening to have him forcibly removed if he refused; 3) attacking him without cause on the evening of December 29, 1979; and 4) public defamation.

The trial court did not give reasons for the denial of Dr. Blackwell’s claim. It is presumed that a trial judge properly applies the correct rule of law to evidence in a ease. Helms v. Helms, 349 So.2d 441 (La. App. 3rd Cir. 1977). Since the trial judge did not render judgment on behalf of Dr. Blackwell, he presumably concluded that Mrs. Blackwell was not guilty of fault sufficient to constitute a grounds for separation. Such conclusions are factual and, due to the trial judge’s superior position for judging credibility in such cases, should not be overturned in the absence of manifest error. Douglas v. Douglas, supra. Our review of the record reveals no such manifest error.

Finally, we reject appellant’s alternative claim that the trial judge should have awarded a separation based on mutual fault. In order for a mutual fault separation under LSA — C.C. art. 141 to be properly granted, each party must be guilty of conduct sufficient to constitute an independent grounds for separation under LSA-C.C. art. 138. Douglas v. Douglas, supra; Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ denied, 371 So.2d 1341 (1979). In light of our conclusion that neither party is entitled to a judgment of separation, the standard for a mutual fault separation obviously is not met.

For the foregoing reasons, the judgment of the district court is reversed and this case is dismissed. Costs of this appeal are assessed against plaintiff-appellee.

REVERSED AND DISMISSED.

      . The transcript of testimony from the first trial was introduced into evidence at the second trial by counsel for the plaintiff. See LSA-C. C.P. art. 1978.


text:
    REGIONAL APARTMENT SERVICE CORPORATION v. Robert L. JOHNSON.
    No. 14733.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    George Kim Johnson, Baton Rouge, for plaintiff (appellee).
    Robert L. Johnson, not present.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b) this Court, ex proprio' motu, considers said appeal abandoned. Therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Elizabeth SCOTT, et al. v. JACK’S COOKIE COMPANY, et al.
    No. 14747.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Gordon Hackman, Boutte, for plaintiff and appellant.
    Darryl D. Sicarelli, Metairie, for defendant and appellee.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

This case raises the question of the correctness, vel non, of the district court’s actions in maintaining the defendants’ dilatory exception of lack of procedural capacity and dismissing plaintiff’s suit.

Elizabeth and Clyde Scott filed suit on behalf of their minor son, Clyde, Jr., against Jack’s Cookie Company and its insurer, Liberty Mutual Insurance Company. The Scotts’ suit alleged that they purchased a cookie manufactured by Jack’s which contained “a piece of stick.” Clyde, Jr. allegedly ate a portion of this cookie and as a result suffered personal injury. On the day that the petition was filed, the district court issued an order allowing Elizabeth Scott only to litigate the action as a pauper.

Defendants filed a dilatory exception of lack of procedural capacity on the part of Elizabeth Scott to sue for and on behalf of her minor son. The trial court maintained this exception and dismissed Elizabeth Scott’s suit. Elizabeth Scott has appealed that decision, contending that the trial court erred in maintaining the exception. Alternatively, Scott argues that the trial court erred in failing to give her the opportunity to amend her petition to cure any defects raised by the exception.

Under article 683 of the Louisiana Code of Civil Procedure unemancipated minors do not have the procedural capacity to sue on their own behalf. LSA-C.C.P. art. 683 provides as follows:

“An unemancipated minor does not have the procedural capacity to sue.
“Except as otherwise provided in Article 4431, the tutor appointed by a court of this state is the proper plaintiff to sue to enforce a right of an unemancipated minor, when (1) one or both of the parents are dead, (2) the parents are divorced or judicially separated, or (3) the minor is an illegitimate child.
“The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are not divorced or judicially separated. The mother, as the administratrix of the estate of her minor child, is the proper plaintiff in such an action, when the father is a mental incompetent or an absentee.”

Under this article a mother has the procedural capacity to bring an action on behalf of her minor child only when she is the tutrix of that child or the administratrix of that child’s estate. Plaintiff’s petition nowhere alleges that Elizabeth Scott is the tutrix or administratrix of Clyde Scott, Jr. Therefore, since the petition fails to allege that Elizabeth Scott has procedural capacity under LSA-C.C.P. art. 683, the trial court correctly maintained the exception.

Counsel for plaintiff relies upon Garrett v. Earnest, 376 So.2d 623 (La.App. 4th Cir. 1979) and Southern Shipbuilding Corp. v. Richardson, 372 So.2d 1188 (La.1979) as authority for the proposition that a mother may represent her child “for all purposes, even without being authorized to do so.” A cursory reading of these cases reveals that counsel sees much in them which simply is not there. In Garrett, supra, the court noted that the mother had been recognized by a court of competent jurisdiction as the administratrix of the minor’s property and was, thus, the proper party to assert the claim belonging to the minor. Southern Shipbuilding, supra, did not involve the mother’s procedural capacity to bring an action on behalf of a minor child, but was concerned with the question of whether or not a mother needed to qualify as tutrix or obtain court approval as a prerequisite to entering into a contingency fee contract for recovery of damages due her minor child for the wrongful death of the father. These cases clearly do not support the proposition for which plaintiff’s counsel cites them.

Since the mother’s petition failed to allege that she was the tutrix of Clyde, Jr. or the administratrix of his estate, we find that the district court properly maintained the dilatory exception of lack of procedural capacity. However, we conclude that the trial court erred in failing to allow plaintiff to amend her petition to cure the defects raised by the dilatory exception.

LSA-C.C.P. art. 933 provides, in pertinent part, as follows:

“If the dilatory exception pleading want of amicable demand is sustained, the final judgment shall impose all court costs upon the plaintiff. If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed.
“When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the suit shall be dismissed only for a noncompliance with this order.”

Lack of procedural capacity is a defect which “may be removed by amendment of the petition or other action by plaintiff. ...” Louisiana Power & Light Company v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976). Therefore, the trial court erred in dismissing Elizabeth Scott’s suit without first affording plaintiff an opportunity to cure the defect by amendment of her petition.

For the foregoing reasons, we reverse the district court’s judgment which dismissed Elizabeth Scott’s suit. We remand this case to the trial court which is hereby instructed to enter an order allowing Elizabeth Scott fifteen days within which to amend her petition to cure the defects pleaded by the dilatory exception; failure to do so within that time period will result in dismissal of the action without prejudice. The costs of this appeal are assessed against plaintiff-appellant.

REVERSED AND REMANDED.

      . In Garrett, the defendant had questioned the propriety of the mother’s appointment as ad-ministratrix of the minor child since she had never been separated or divorced from the minor’s father. The court held that the only party with interest to attack the mother’s appointment as administratrix was the father himself.


author: LOTTINGER, Judge.

text:
    CHRISTOPHER ESTATES, INC. v. PARISH OF EAST BATON ROUGE, City of Baton Rouge and the Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge.
    No. 14748.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Samuel A. Bacot, Curtis K. Stafford, Baton Rouge, for plaintiff-appellant Christopher Estates, Inc.
    Stephen R. Wilson, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge, City of Baton Rouge, Planning Commission for the City-Parish.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action by plaintiff, Christopher Estates, Inc., for a mandatory injunction against the defendants, the Parish of East Baton Rouge, the City of Baton Rouge, and the Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge. From a judgment denying the injunction, plaintiff has appealed.

Suit arose when plaintiff submitted to the Planning Commission for preliminary approval a revised subdivision plat of the third filing for Forest Glen Subdivision in the northeastern part of East Baton Rouge Parish. The plat was a revision of two prior plats for the third filing of the subdivision which had been previously submitted and approved. The plat in question created lots with sixty feet of street frontage in the third filing, as opposed to lots with eighty feet of street frontage, which the Planning Commission had already approved.

The proposed plat received strenuous opposition from residents already living in the first and second filings of Forest Glen Subdivision. On July 7, 1980, after heated discussion at a public hearing conducted by the Planning Commission, the Commission refused to grant preliminary approval to the proposed plat. The Commission suggested as a compromise that plaintiff reduce the street frontage for lots in the third filing from eighty feet to seventy-five feet, rather than the sixty foot frontage submitted by plaintiff. The suggested compromise was disdained by the plaintiff, who filed the instant action. The basis of plaintiff’s request for a mandatory injunction was that the proposed plat with sixty-foot frontages was well within the minimum requirement of fifty-foot frontages for residences in a rural (R) zone.

SPECIFICATION OF ERRORS

Plaintiff-appellant, Christopher Estates, Inc., argues that: the Planning Commission does not have the discretion to disapprove a plat which meets the requirements of all relevant statutes and ordinances and even if the Commission does have such discretion, it abused its discretion by acting arbitrarily, capriciously and in a discriminatory manner in failing to approve plaintiff’s proposed plat.

I

We will discuss these issues in reverse order. Plaintiff-appellant argues that if the City-Parish Planning Commission does have discretion to disapprove the proposed plat, that the Commission abused its discretion by arbitrarily, capriciously, and dis-criminatorily failing to approve the plat as proposed.

This court stated in Schwing v. City of Baton Rouge, 249 So.2d 304, 308 (La.App. 1st Cir. 1971) writ denied 259 La. 770, 252 So.2d 667 (1971) that governing bodies have the legal constitutional right to adopt master plans for physical development in the interest of public health, safety, and morals, and that this is especially true when municipalities and similar governing units are empowered to take such action by the state, as is the case with La.R.S. 33:101 et seq. However, in forming the City-Parish Planning Commission, the City-Parish government of Baton Rouge created a structure of local government whose powers and functions remain subject to the laws and constitution of Louisiana, and subject to the laws and constitution of the United States. Accord: Old Jefferson Civic Association Inc. v. Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge, 364 So.2d 193, 195 (La.App. 1st Cir. 1978). The United States Supreme Court held in Village of Euclid, Ohio v. Ambler Realty Company, 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926), and its progeny, that actions taken under a comprehensive land use regulatory ordinance are violative of due process if they are arbitrary, capricious, and unreasonable.

However, the burden of proof is on the landowner to show that the governing authority acted arbitrarily or without authority in refusing to approve a plan for a subdivision. State ex. rel Prats v. City Planning & Zoning Commission of the City of New Orleans, 59 So.2d 832 (Orl.La.App. 1952). There is a prima facie presumption of validity which attaches to acts of a duly constituted commission, Roy v. Kurtz, 357 So.2d 1354 (La.App. 4th Cir. 1978), writ ref. 359 So.2d 1307 (La.1978); First National Bank of Abbeville v. Sehrt, 246 So.2d 382 (La.App. 1st Cir. 1971), writ ref. 258 La. 909, 248 So.2d 334 (1971).

Evidence adduced at trial showed that the lots within the first and second filings of Forest Glen Subdivision generally have large street frontages, approximately from 90-150 feet. The third filing was to be an addendum to the first filing, with an extension of the main thoroughfare of the subdivision, Donnybrook Avenue, to run directly from the first filing through the third filing. The lots in the first filing immediately adjacent to the proposed third filing have street frontages of 166 feet, 150 feet, 150 feet, 150 feet, and 120 feet, respectively.

The original plat for the third filing contained lots with street frontages of 120 feet (except in curves and cul-de-sacs.) This plat received preliminary approval. Later, in connection with a proposed sale of the property to another developer, a second plat was drawn for the third filing, featuring street frontages of 80 feet. This plat was also given preliminary approval by the commission, although the proposed sale was never consummated. Ultimately, plaintiff presented the commission with a third plat for the third filing, with frontages of 60 feet (except for lots in curves and cul-de-sacs.) This plat was refused, and a compromise of seventy-five foot lots was suggested by the commission. The plaintiff then instituted the present action.

Various members of the Planning Commission testified at trial. They stated that the staff of the commission had recommended disapproval of the third plat, and that they had agreed with this recommendation. The reason given for disapproval was that the proposed third filing if adopted would interrupt the character of the development, inasmuch as lots with large street frontages would be immediately adjacent to lots with much smaller frontages. The commissioners also testified that the residents of the first and second filings voiced vocal opposition to the proposed plat, and had presented the commission with a petition of signatures of subdivision residents who opposed the third plat for the third filing.

The plaintiff, to prove that the actions of the commission were arbitrary and capricious, introduced the expert testimony of civil engineers and real estate appraisal and development experts. Their unrebutted testimony was that the existence of nearby 60-foot lots would not adversely affect the value of the larger adjacent lots in the first and second filings. They further testified that the practice of putting large and small lots in the same neighborhood (or even along the same street) was widespread and prevalent in East Baton Rouge Parish. The subdivisions Shenandoah Estates and Innis-wold Estates were given as specific examples of this practice.

The plaintiff further adduced the testimony of commission members and commission staff personnel that no real estate appraisal or development experts testified in opposition at the public hearing on this matter, and that no experts in real estate development are on the commission staff. The plaintiff also elicited the testimony of the commission members that their disapproval was based on the bare, bottom-line recommendation of the staff, on opposition voiced by the residents of the subdivision, and on personal feelings and experience.

Mr. Robert Dolese of the commission staff testified for the defendants. Mr. Dolese is an expert in land use planning, although he has little real estate experience. He testified that as acting director of the commission staff, he has overseen the development of virtually every subdivision in the parish for the last ten years. Mr. Dolese testified that nowhere in the parish was there a subdivision where along the main thoroughfare there was an immediate drop of ninety feet in street frontage of immediately adjacent lots. The subdivisions cited by plaintiffs’ experts generally used a “tapering down” of lot sizes from larger to smaller as one traveled deeper into the subdivision. Mr. Dolese testified that it was the sudden and drastic decrease in street frontage (from 166 feet to 60 feet) that one would encounter on Donnybrook Drive if the proposed plat went through that prompted the commission staff to recommend disapproval. The drastic decrease in street frontage had an adverse effect on the character of the development, according to the commission staff and Mr. Dolese.

In his written reasons for judgment, the trial judge stated in holding for defendants that he was impressed with the fact that the commission, after disapproving the proposed plat with 60 foot lots, offered the plaintiff a compromise whereby a reduction would be made in street frontages from eighty feet to seventy-five feet. This action, the trial judge stated, indicated “that the members and staff of the commission attempted to discharge their duty in a fair and responsible manner taking into consideration the views and interests of all of the persons who would be affected by their decision.”

In matters concerning the decision of a zoning board or planning commission, the trial or reviewing court cannot substitute its wisdom for that of the governing body except when there is an abuse of discretion or an excessive use of power. Four States Realty Company, Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1975). Generally, the action of a governing body is arbitrary, capricious, and unreasonable if it bears no relation to the health, safety, or general welfare of the public. Village of Euclid, Ohio v. Ambler Realty Company, supra; Hardy v. Mayor and Board of Alderman, City of Eunice, 348 So.2d 143 (La.App. 3rd Cir. 1977), writ den. 350 So.2d 1212 (La.1977).

The decision to disapprove the proposed subdivision plat was made after a public hearing, in accordance with law. However, no expert testimony was elicited at the hearing as to whether the proposed plat would adversely affect the health, safety, or general welfare of the public. The only opposition to the plat was that voiced by residents of the first and second filings. Their primary concern was not that the proposed third filing would create a health or safety problem, but that property values in the neighborhood would be lowered by the introduction of smaller lots into the neighborhood. Thus, there was no evidence during the public hearing presented to the commission that the proposed plat was unacceptable for reasons relating to health or safety of the public.

Disapproval of the plat was based primarily on the recommendation of the commission staff. Again, the record shows conclusively that the staff did not base its recommendation to disapprove on reasons relating to health or safety. No health or safety experts were consulted by the staff in formulating its recommendation. The only reasons given by the staff personnel for recommending disapproval was that the proposed plat would create a unique situation in the parish whereby 60-foot lots would be immediately adjacent to 150-foot lots along the same street. This reason of itself does not bear any real relation to the health, safety or general welfare of the public. The act of a governing body is in general arbitrary and capricious when it bears no relation to the health, safety or general welfare of the public. In the case sub judiee, the developer submitted a plat meeting all minimum requirements. Those requirements were set down by the Planning Commission. Disapproval under these circumstances by the commission should be made only for reasons which are articulably strong and compelling.

The only reason given for disapproval dealt with property values and aesthetics. Yet, evidence at trial indicated strongly that property values in the neighborhood would not be lowered by the presence of the smaller lots. And although aesthetics have some part in the general welfare of the public, this part must be deemed marginal when compared to considerations such as public health and safety.

Because of the absolute dearth of evidence in the record to show that the disapproval of the proposed plat was based on reasons relating to the public safety, health, or general welfare, we hold that the Planning Commission acted arbitrarily, capriciously, and unreasonably in refusing approval of the proposed plat. We are compelled to this holding in light of the evidence that the commission’s suggested compromise of 75-foot lots would result in a reduction in number of a mere seven lots from the proposed plat. We cannot conceive that reducing the number of lots by seven will have any real effect on traffic flow, access for emergency vehicles and personnel, or any other matters relating to health, safety, and the general welfare of the public.

II

Inasmuch as we have found the action of the Planning Commission to be arbitrary and capricious, we pretermit any discussion of appellant’s first assignment of error.

Therefore, for the above and foregoing reasons, the judgment of the trial court in favor of the defendants is reversed, and this matter is remanded to the trial court with instructions to issue a mandatory injunction directing the defendant Planning Commission to enter preliminary approval for the revised subdivision plat proposed by the plaintiff. All costs in the amount of $1,248.07 are to be paid by the defendants.

REVERSED AND REMANDED.

      . It was explained at trial that due to the state of the present economy, the smaller lots (which are generally less expensive) are more in demand, and that throughout the parish, later filings in large-lot neighborhoods tend to have smaller lots. This practice makes owning a home in a new subdivision a possibility for a larger percentage of the populace. Mr. W. T. Harger, the developer of Shenandoah Estates, testified that he observed a “graduation” effect in Shenandoah Estates, whereby younger couples bought smaller lots in the later filings, and as they prospered, they moved to larger lots in the earlier filings at the front of the subdivision.


author: SHORTESS, Judge.

text:
    Josephine N. NELMS v. Leonard H. NELMS.
    No. 14754.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied June 4,1982.

      Sylvia Roberts, Baton Rouge, for plaintiff-appellant Josephine N. Nelms.
    John Lenfant, IV, Baton Rouge, for defendant-appellee Leonard H. Nelms.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Leonard and Josephine Nelms were married on March 21, 1970. One child was born of the marriage, Jennifer W. Nelms. Plaintiff (Josephine Nelms) obtained a divorce on April 12,1979, and was awarded permanent custody of Jennifer. Defendant (Leonard Nelms) was ordered to pay $275.00 per month child support and $200.00 per month permanent alimony.

Plaintiff subsequently filed a rule to increase permanent alimony and child support. Defendant responded by filing a rule to reduce or terminate alimony. A hearing on both rules was held on February 5, 1981. The trial court decided that permanent alimony should be terminated, but that child support should remain at $275.00 per month. From this judgment, dated April 7, 1981, plaintiff appeals.

The trial court found that the appellant had not shown a substantial change in circumstances, so as to warrant an increase in child support. The trial judge is given wide discretion in determining the amount of child support appropriate in any case. Ducote v. Ducote, 339 So.2d 835 (La.1976); Duncan v. Duncan, 408 So.2d 449 (La.App. 1st Cir. 1981). The judgment of the trial court will not be set aside unless a clear abuse of discretion is shown. Bettencourtt v. Bettencourtt, 407 So.2d 804 (La.App. 4th Cir. 1981); Hord v. Hord, 407 So.2d 1314 (La.App. 3d Cir. 1981); Shanklin v. Shanklin, 339 So.2d 1262 (La.App. 1st Cir. 1976).

The party seeking a modification of the child support award must show a change in the circumstances since the original award. Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3d Cir. 1980) writ denied, 383 So.2d 782; Lucien v. Lucien, 378 So.2d 518 (La.App. 4th Cir. 1979). It must be shown that the child is actually in need of more monetary support. Duncan, supra, at 451. Article 227 provides in pertinent part:

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

Children are to be maintained at the same standard of living, which would be provided for them if they were living with the noncustodial parent.

If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Ducote, supra, 339 So.2d at 838 and the authorities cited therein.

The amount of child support is determined by the wants of the child and the circumstances of the parent who is to pay. La.C. C.Arts. 227, 231. Therefore, in making a determination of child support, the trial court must consider the totality of all pertinent circumstances. Marcus v. Burnett, 282 So.2d 122 (La.1973); Prudhomme, supra; Moss v. Moss, 379 So.2d 1206 (La.App. 3d Cir. 1980); LaBalle v. LaBalle, 352 So.2d 330 (La.App. 4th Cir. 1977).

Plaintiff offered into the record documented evidence to support her itemized list of Jennifer’s current expenses. The amount of increase between these present expenses and Jennifer’s expenses in 1979 is approximately $564.81 per month.

After the original award of child support was made, plaintiff was advised that the amount of household expenses attributable to Jennifer’s use could be properly allocated as child support expenses. These items were for the first time included in the list of Jennifer’s expenses offered into evidence at the hearing on the rule to increase. The itemized list containing plaintiff’s personal expenses reveals for each item reallocated to Jennifer, a corresponding reduction in plaintiff’s expenses. Appellant explained at trial that part of the significant increase resulted from this reallocation.

The trial judge denied the rule and stated in his written reasons that:

It is obvious that Mrs. Nelms has allocated certain expenses to her child for purposes of this rule. These expenses were not so allocated in the 1979 rule. The change is in the allocation; the dollar amounts do not substantially vary.
No increase in child support will be granted for failure to show a substantial change in circumstances.

We disagree.

That portion of the household expenses which can be attributed to the children’s use is a proper item to be considered in determining child support. See: Moss, supra, at 1208; Gaidry v. Gaidry, 380 So.2d 644 (La.App. 1st Cir. 1979); Poydras v. Poydras, 155 So.2d 221 (La.App. 1st Cir. 1963). In the original determination of child support, no consideration was given to expenses for phone, housing, house repairs and maintenance, car insurance, or car maintenance, items totalling approximately $246.45. Jennifer resides with her mother and therefore shares in the use of the household facilities. Plaintiff is responsible for most of Jennifer’s transportation, especially her after-school activities. We feel that the trial court was clearly wrong in refusing to consider these legitimate expenses in its determination on the rule to increase. Although some of the amounts for housing and car care may be inflated, we feel that these expenses were a proper basis for determining whether an increase in child support was in order.

Defendant no longer carries Jennifer on his health insurance policy and the plaintiff has taken out a student policy with Blue Cross at $48.75 per month.

The trial court held that La. Civil Code art. 160 mandated the termination of permanent alimony. Since the original award, plaintiff obtained part-time employment, and the trial court found that she was capable of full-time employment. Also, the plaintiff owns several shares of stock in a family corporation which are income-producing, and has jewelry appraised at $30,000.00. Although plaintiff has significant debts, her income has increased since 1979. Defendant is in a similar financial condition with respect to monthly income and expenditures. This evidence convinces us that the trial court was within its discretion in terminating permanent alimony. However, this determination further supports our decision to increase the amount of child support. Plaintiff will not be receiving alimony payments and will be forced to obtain full-time employment. The extra cost of full-time child care forms another appropriate basis for raising child support. Reasonable! child care is a proper expense to be considered in determining child support, especially when the mother is required to work. Bettencourtt, supra; Naughton v. Naughton, 304 So.2d 679 (La. App. 4th Cir. 1974); Paddison v. Paddison, 255 So.2d 504 (La.App. 4th Cir. 1971).

For the foregoing reasons, we conclude that the judgment of the trial court should be amended to increase child support to $450.00 per month. The decision of the trial court to terminate permanent alimony is affirmed. All costs are taxed to defendant-appellee.

AMENDED, AND AFFIRMED AS AMENDED.


text:
    Daize (Daes) CHERAMIE, et al. v. Raphael VEGAS, et al.
    No. 14919.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Harold L. Molaison, Gretna, and P. Keith Daigle, John A. Gordon, of Gordon, Arata & McCollam, New Orleans, for plaintiffs-ap-pellees Daize (Daes) Cheramie, et al.
    Edward T. Diaz, of Diaz & Cheramie, Golden Meadow and William W. Rosen, of Levy, Marx, Lucas & Rosen, New Orleans, for defendants-appellants Raphael Vegas, et al.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Appellees’ motion to dismiss this appeal raises the issue of whether the ruling appealed from constitutes an appealable judgment.

On May 21, 1976, a consent judgment was signed by the trial court fixing a permanent boundary line between the property of the plaintiffs and the defendants. On May 21, 1979, plaintiffs petitioned for a rule to show cause why that judgment should not be corrected, alleging that it contained an error in calculation. Defendants filed dilatory exceptions of vagueness and unauthorized use of summary proceedings. Additionally, defendants filed peremptory exceptions of res judicata and no cause of action.

The exception of unauthorized use of summary proceedings was overruled by the trial judge on November 8, 1979. All other exceptions were taken under advisement until after an evidentiary hearing was held. Defendants appealed that judgment, but the appeal was dismissed by this court on the grounds that the interlocutory judgment was not appealable since there was no showing made of irreparable harm. Cheramie v. Vegas, 385 So.2d 453 (La.App. 1st Cir. 1980). This court also ordered that on remand the trial court should dispose of all the exceptions prior to a hearing on the merits of plaintiffs’ rule.

Subsequent to the dismissal of this appeal and the remand to the trial court, defendants filed a motion for summary judgment. On May 14, 1981, the trial court rendered judgment overruling defendants’ exceptions of no cause of action and res judicata and denying the motion for summary judgment. Defendants suspensively appealed that judgment and plaintiffs have filed a motion to dismiss that appeal.

LSA-C.C.P. art. 968 expressly provides that no appeal is available from a denial of a motion for summary judgment. Batson v. Time, Inc., 298 So.2d 100 (La.App. 1st Cir. 1974), writ denied, 299 So.2d 803 (1974).

Additionally, a judgment overruling peremptory exceptions of no cause of action and res judicata is an interlocutory rather than a final judgment and thus not appeal-able absent a showing of irreparable harm. LSA-C.C.P. art. 2083; In Re Brunet, 393 So.2d 222 (La.App. 1st Cir. 1980); Wallace v. Pan American Fire & Casualty Company, 386 So.2d 158 (La.App. 3rd Cir. 1980); Mauterer v. Tillery, 328 So.2d 755 (La.App. 1st Cir. 1976), writ denied, 365 So.2d 245 (1978); Bulk Transport v. General Truck Drivers, W.&H.L.U., 195 So.2d 159 (La.App. 1st Cir. 1967).

The only irreparable harm urged by defendants as a result of the judgment complained of is that they will suffer the costs incident to a hearing on the merits. The necessity for increased expenses and labor resulting from trial on the merits does not constitute irreparable harm. Wallace v. Pan American Fire & Casualty Company, supra; Mauterer v. Tillery, supra; Smith v. Hartford Accident & Indemnity Company, 195 So.2d 743 (La.App. 1st Cir. 1967), application not considered, 250 La. 642, 197 So.2d 898 (1967).

In our earlier decision in this matter, Cheramie v. Vegas, 385 So.2d 453, at 454 (La.App. 1st Cir. 1980), we stated that the standard for determining whether an interlocutory judgment may cause irreparable injury is:

“. . . whether any error in the judgment may be corrected as a practical matter in an appeal following the determination of the merits.”

See also Jacobs v. Jacobs, 365 So.2d 25 (La.App. 4th Cir. 1978). Once again, this is such a case. We would be able to correct any error in the judgment appealed following an evidentiary hearing on the merits of plaintiffs’ rule. Therefore, this appeal must be dismissed.

In their motion for dismissal, plaintiffs have sought attorney fees as damages for frivolous appeal. In order to demand damages for a frivolous appeal, an appellee must either raise the issue in an independent appeal or in an answer to appellant’s appeal, filed within fifteen days of the return date or lodging of the record, whichever is later. LSA-C.C.P. art. 2133; Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973). In the instant case, however, plaintiffs have not answered the appeal or filed an independent appeal. They have merely made their demand for damages in their motion for dismissal, which was filed well over fifteen days after the lodging of the record on appeal. Therefore, this claim is not properly before this court and will not be considered.

For the foregoing reasons, the motion to dismiss is granted and the case is remanded. All costs of these proceedings are to be paid by plaintiffs-appellants.

DISMISSED AND REMANDED.


author:
LOTTINGER, Judge.
      SHORTESS, Judge,

text:
    In the Matter of the Abandonment of Stephen Boyd HARRELL.
    No. 15083.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    J. Glenn Dupree, Baton Rouge, for plaintiff-appellant John Anthony Ashford and Connie Dubois Ashford.
    Donald R. Weber, Baton Rouge, for defendant-appellee Charles Aubrey Harrell.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.

      . La.R.S. 9:403 provides:
      “A. A child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove either:
      “(l)(a) the child has been deserted for a period of at least four months by his parent or parents, the whereabouts of his parent or parents are unknown, the parent or parents have made no provision for the child’s care and support and have shown an intention to avoid parental responsibility; or
      “(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.
      “(2) The introduction of clear and convincing evidence which establishes the facts required by Subparagraphs (l)(a) or (l)(b) of this Subsection shall create a presumption that the parent or parents intended to permanently avoid parental responsibilities. The child shall be declared abandoned unless the parent or parents present evidence that rebuts the presumption. A parent adjudged to have abandoned his child under Subpara-graphs (l)(a) or (l)(b) shall thereafter have no right to object to or oppose any proceeding to adopt that child.
      “This Part shall not be construed to require physical care of a child by a parent or parents to whom custody has been denied or from whom custody has been removed by a court of competent jurisdiction.
      “For purposes of this Subsection, custody shall be deemed to have been removed or denied to a parent only when such denial or removal is incidental to an action for divorce or separation from bed and board.
      “Nothing in this Subsection shall be construed to provide a method by which the consent of the noncustodial parent can be dispensed with in adoption proceedings instituted under the provisions of R.S. 9:422.1.
      “B. An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place or residence of the parent of the child if known to the deponent. The judge shall then by order fix a time and place for the hearing of this matter not less than sixty days after the date of the order. If the parent of the child resides within the state, notice of the hearing shall be served upon the parent as in civil proceedings, at least thirty days prior to the date fixed for hearing which and if the residence of the parent be out of the state, notice of the hearing shall be sent by the clerk of court to the parent by registered mail, if his address be shown in the affidavit, at least thirty days prior to the hearing. If the parent resides out of the state or cannot be served in the state within ten days after the issuance of process, the court shall appoint an attorney at law as curator ad hoc and legal representative of the parent, and notice of the hearing shall be served upon the curator ad hoc. The curator ad hoc shall make a diligent effort to locate the parent. In the event that the curator ad hoc shall fail to locate the parent within twenty days to notify him of the pendency of the proceedings, he shall report his failure to the court whereupon the court shall then direct the department by mail or otherwise to make a diligent effort to locate the parent and inform him of the pendency of the proceedings. The department shall report its findings in writing to the court on or before the date fixed by the court which shall not be less than twenty days from service of notice. The department may ask for a further delay which may be granted for good cause. Proceedings insofar as the parent are concerned shall be had contradictorily with the curator ad hoc and be of full force and legal effect against the parent. The date for the hearing may be continued from time to time by the judge for good cause, upon such notice to parties as he may determine.
      “C. In the event the facts constituting abandonment are proved' by clear and convincing evidence to the satisfaction of the court, the court shall decree the child to be an abandoned child and may place the child in the custody of an agency, a person or persons, or may make any other disposition of the child that is in the best interest of the child.
      “D. Repealed by Acts 1980, No. 747, § 3.
      “E. The person identified as a parent in the affidavit alleging abandonment shall have juridical capacity for such proceedings regardless of age or matrimonial state.
      “F. With reference to Subsection (E), no action to annul any court order or decree of abandonment rendered prior to July 31, 1970 shall be brought after the lapse of sixty days from July 31, 1970.
      Amended by Acts 1970, No. 568, § 1; Acts 1977, No. 249, § 2; Acts 1980, No. 747, § 1.”

   LOTTINGER, Judge.

In separate proceedings, consolidated in the trial court, Mrs. Connie Dubois Ashford, the natural mother of Stephen Boyd Harrell, seeks to have the child declared abandoned by his father, Charles Aubrey Harrell; and Mrs. Ashford and her present husband, John Anthony Ashford, seek the adoption of Stephen by the second husband. The natural father and first husband of Mrs. Ashford, Charles Harrell, opposes both proceedings. From a judgment dismissing both petitions, John Anthony and Connie Dubois Ashford have appealed.

FACTS

Connie Dubois and Charles Harrell were married in July of 1973, commenced living separate and apart in January of 1974, and were legally separated on June 28, 1974. Stephen Boyd Harrell was born on July 25, 1974. On November 24, 1975, Charles Harrell obtained a default judgment of divorce from his wife. The divorce judgment awarded the mother the permanent care, custody and control of the minor, Stephen. The father did not seek visitation privileges with the child, nor did he offer to pay any child support, thus the divorce judgment is silent as to support and visitation.

On December 16, 1977, Connie Dubois married John Anthony Ashford, and they have lived together continuously, with Stephen, since that marriage.

Since the separation in June of 1974, Charles Harrell has not given any financial help to Connie, nor since the birth of Stephen has he given financial help for the support of his son. He has seen the child only twice since the birth, once when Stephen was six months old, and again when he was eight months.

The marriage of Connie and Charles was apparently rocky from the beginning, and a great amount of animosity developed between Charles and his in-laws. In his written reasons for judgment, the trial judge found as fact that the mother took “the position that she would not allow visitation in return for support,” and that “she admitted never demanding support but always using the fact of non-support as an excuse to deny visitation.” The trial judge con-eluded that petitioners had not borne the burden of proving that consent of the father is not required or that the child was abandoned by its father.

In appealing petitioners contend the trial judge erred in holding (1) that petitioners had not borne the burden of proof in the abandonment proceeding, (2) that petitioners had not borne the burden of proving that the father’s consent was not required in the adoption proceeding, and (3) that the natural father had just cause for not visiting, communicating, supporting or attempting to visit, communicate or support his child.

ABANDONMENT

The abandonment proceeding was instituted under La.R.S. 9:403. Just recently this court in In Re Allain, 407 So.2d 767 (La.App. 1st Cir. 1981) held that La.R.S. 9:403 only applies to abandonment actions initiated by an agency or officer of the court, and not by a private individual. Thus, for whatever reasons, the trial judge was correct in dismissing the petition in the abandonment proceeding.

ADOPTION

La.R.S. 9:422.1 provides:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child then the consent of the other legitimate parent is not necessary when the spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
(1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.
(2) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.
(3) The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.”

Stephen’s mother was granted custody in the divorce decree, thus the initial prerequisite has been met. It is only then necessary for petitioners to prove one of the three enumerated conditions mentioned in La.R.S. 9:422.1. The obvious condition that petitioners attempted to prove is Number 3, “the other legitimate parent has refused or failed to visit, communicate or attempt to communicate with the child, without just cause, for a period of two years.” The trial judge found that Stephen’s natural father had, “just cause,” thus disallowing the use of La.R.S. 9:422.1 dispensing with the consent of the father.

In addition to the facts recited above, the father of the child discussed visitation with the boy’s mother several times. After listening to the natural mother and father of Stephen testify, the trial judge was obviously impressed that Stephen’s father wanted to be able to see his son, though he never demanded such, and that the mother did not want him to visit with his son. We agree with the trial judge in his conclusion that petitioners did not carry their burden of proof.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

SHORTESS, Judge,

dissenting.

This record establishes the following facts: that Stephen Boyd Harrell, born on July 25, 1974, was approximately 6V2 years old at the time of the adoption hearing (January 20,1981); that his father had seen Stephen on only two prior occasions, when he was six months and eight months old; that his mother was responsible for both occasions; that his father did not seek visitation rights when he obtained a divorce from petitioner on November 24,1975; that his father subsequently remarried and has a 5-year-old daughter from his second marriage; that his father has never been under a court order to provide child support; that his father has been gainfully employed since Stephen’s birth; that Stephen and his father both reside within the Parish of East Baton Rouge; and that his father has never contributed to Stephen’s support or even given him a birthday or Christmas present.

The pertinent provisions of La.R.S. 9:422.1 are as follows:

If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child then the consent of the other legitimate parent is not necessary when the spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
* * * ' * * *
(3) The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.

I agree with the majority that “a great amount of animosity developed between Charles Harrell and his in-laws.” I disagree that this fact, or the fact that the mother did not feel that Charles should see Stephen if he would not support him, provided the father with just cause not to communicate or attempt to communicate with his son.

I respectfully dissent.


text:
    STATE of Louisiana: In the Interest of Carlton PINDEXTER.
    No. 15084.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Wiley Dial, Baton Rouge, for plaintiff-ap-pellee State of La.
    Kathleen Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant Carlton Pindexter.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Carlton Pindexter was adjudicated delinquent as a multiple misdemeanor theft offender (La.R.S. 14:67) on October 19, 1981. He was thereafter committed to the Department of Corrections for a period not to exceed two years.

At the adjudicatory hearing on Petition No. 64,850, the State offered evidence of two prior misdemeanor thefts: Petition No. 53,441 dated January 12, 1981, and Petition No. 53,761 dated May 11, 1981. Defense counsel objected to the use of the judgment in Petition No. 53,441 on the grounds that it resulted from an uncounseled admission of guilt. The trial court overruled the objection and proceeded with the hearing. On appeal, defense counsel argues that the trial court erred in allowing the State to use the judgment in Petition No. 53,441 as the basis for having Carlton Pindexter adjudicated a multiple theft offender.

Absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The Louisiana Supreme Court has held that an uncounseled D.W.I. conviction may not be used to enhance punishment on a subsequent offense. State v. Wiggins, 399 So.2d 206 (La.1981), State v. Franklin, 337 So.2d 1152 (La.1976), City of Monroe v. Fincher, 305 So.2d 108 (La.1974). In order to sustain the trial court’s ruling, the State must have entered into the record sufficient evidence that Carlton Pindexter knowingly and intelligently waived his right to counsel in Petition No. 53,441.

Article 96 of the Code of Juvenile Procedure provides that:

The child, with consent of the court and his parent, may waive assistance of counsel. Such waiver shall be evidenced by a writing signed by the child and his parent and filed in the record, or by a verbatim transcript of the proceedings in which the child is advised of his rights and, with the consent of his parent, waives counsel.

The State contends that at the adjudicatory hearing for the multiple offense, the entire record of the matter No. 53,441, including the verbatim transcript, was entered into evidence. We note that the transcript from Petition No. 53,441 was not contained in the record as lodged. However, our consideration of the dialogue from the hearing on Petition No. 53,441, referred to by the State in its brief, does not convince us that Carlton Pindexter or his guardian knowingly and intelligently waived his Sixth Amendment right to counsel.

We do not feel that on the basis of this short discourse, we can conclude that a juvenile of twelve years of age would have sufficiently understood his right to representation through an attorney. Neither do we find an adequate showing that Carlton Pindexter or his guardian knowingly and intelligently waived his other constitutional rights by submitting to the court’s subsequent questioning.

Absent a knowing and intelligent waiver, Pindexter’s uncounseled responses in Petition No. 53,441 may not be used as a basis of an adjudication as a multiple theft offender. Therefore, the judgment of the trial court is reversed and we remand for re-sentencing consistent with the reasons set forth herein.

REVERSED AND REMANDED.

      . “THE COURT: ‘Young man, under the law, you have certain rights and you’ve been told them before, but the law requires me to tell them to you again. You have the right to a lawyer, and one at no cost, if that were necessary, or desirable and you have the right to say nothing and not have that held against you, and the right to speak up if you want to. You have the right to be faced by witnesses and if so, to cross-exam those witnesses and the right to have witnesses subpoenaed in your own behalf and there is no cost to you nor to your custodian. You have every right, legal and civil in the Constitution that anyone has in any courtroom ill this country. Do you understand those things? ANSWER: Yes, Sir. THE COURT: And as his guardian, do you understand what I have told you? ANSWER: Yes.’ (Tr. pp. 3^i) Number 53,441


author: SAVOIE, Judge.

text:
    CENAC TOWING CO., et al. v. Arlen B. CENAC, et al. (3 Cases).
    Nos. 82 CM 0077, 82 CW 0081 and 82 CA 0083.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied May 25, 1982.
    Thomas C. Keller, Roy C. Cheatwood, Robert B. Bieck, Jr., Gary E. Meringer, New Orleans, for plaintiffs and appellants.
    Stanwood R. Duval, Jr., Houma, for defendants and appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This suit arises from a dispute among family members over control of a family corporation. The principle shareholders are: Clark Cenac, who is the President of Cenac Towing Co., Inc.; Arlen Cenac, who is Clark’s brother; and Eugenie Cenac, who is their mother.

Allegedly, Arlen has tried to wrest control from his brother by persuading their mother to irrevocably donate her stock to a trust of which the two brothers are the equal beneficiaries, but which will be effectively controlled by Arlen, since his son, Arlen, Jr., has been designated as the trustee.

Clark is suing to prevent Arlen, Jr. from voting the stock as trustee, alleging two grounds:

1. The transfer of the stock to the trust was in violation of the Articles of Incorporation, which require that stock be offered to current shareholders before being transferred to any “non-member” of the corporation.
2. Eugenie Cenac was, at the time of executing the donation of her shares to the trust controlled by her grandson, “incapable of understanding the meaning and ultimate effects” of that act.

The defendants concede that, as president of the corporation, plaintiff has the right to sue to enforce compliance with the Articles. Defendants deny, however, that plaintiff has any right to attack the validity of the stock transfer on the grounds that Eugenie Cenac did not know what she was doing. That claim, say the defendants, can only be made by Eugenie Cenac, herself, or her authorized representative, citing Civil Code Article 1881:

“Engagements made through error, violence, fraud, or menace, are not absolutely null, but are voidable by the parties who have contracted under the influence of such error, fraud, violence, or menace or by the representatives of such parties.”

The trial judge, agreeing with this analysis, granted what amounts to a partial peremptory exception of no right of action, specifying the paragraphs of plaintiff’s petition which were to be considered dismissed, being all those alleging vices of consent in Eugenie Cenac’s transfer of her stock.

The plaintiffs have appealed this decision and applied for supervisory writs. The defendants have filed a motion to dismiss the appeal and oppose the writ. The correctness of the trial court’s action and the proper form of review are questions of procedural law presented here.

Prom the point of view of the trial court, judicial efficiency is well served by striking out, early in the proceedings, a plainly inappropriate theory of relief, so that the labor of hearing evidence on it is saved. From the point of view of the court of appeal, however, judicial efficiency is disserved by a final judgment rendered on only part of the case, which becomes immediately ap-pealable, so that the case comes up “piecemeal”, a result we disapprove.

This problem was addressed in the case of Tano Corp. v. La. Health Service & Indemn., 355 So.2d 604 (La.App.1978) where three judges of the Fourth Circuit Court of Appeal wrote opinions (Stoulig, for the court; Redmann, dissenting; and Lemmon, concurring). There, an action was brought against an insurance company on both breach of contract and tort theories. The tort issues were dismissed on a peremptory exception of no cause of action, and there was an immediate appeal. All the judges agreed that, in fact, no cause of action in tort had been stated, and the case was affirmed on that basis. Judges Redmann and Lemmon, however, both objected to the piecemeal litigation and agreed that the trial judge should have refused to maintain a partial exception of no cause of action. Judge Redmann would have reversed on those grounds but Judge Lemmon thought reversal needlessly burdensome where the objection was purely procedural and involved no substantive right. All three judges apparently agreed that the grant of peremptory exception always created appellate jurisdiction on that issue.

We agree with Judge Redmann in Taño. The Code of Civil Procedure does not provide for a partial peremptory exception of no right of action. Professor Frank L. Maraist’s comment on “Exceptions” in 39 La. Law Review 911 (attached) effectively treated the problem of the granting of a partial peremptory exception of no cause of action.

Our reasoning herein is identical to his reasoning therein. In Professor Ma-raist’s language, we are of the opinion that:

The Louisiana jurisprudence is that if the petition does reflect that a litigant has a right of action as to one of the theories or one of the demands for relief, the exception of no right of action should not be maintained. The evil in maintaining such an exception is that the judgment rendered thereon becomes immediately ap-pealable resulting in a “piecemeal” trial of claims based upon the same facts.

The correct approach of the matter before us can be found in the case of Walker v. Western Southern Life Insurance Co., 361 So.2d 892, June 5, 1978, En Banc rehearing denied, August 15, 1978, Writ Refused, October 10,1978. On page 894 thereof, the Court states:

“The effect of sustaining a peremptory exception is that the action shall be dismissed, not that part of the action shall be dismissed. La. CCP Art. 934. . . . Defendant’s use of the exception of no cause of action to strike an element of claim damages represents an improper use of the procedural vehicle and illustrates the problem of piecemeal litigation, which can result from the misuse of provisions intended to streamline our Civil Procedure.” (Emphasis ours)

As we see it, Walker gets to the heart of the matter. The “sole purpose of the peremptory exception of no right of action is to challenge the plaintiff’s interest in the subject matter of the suit or his legal capacity to proceed with the suit”. Marquis v. Cantu, App. 1979, 371 So.2d 1292.

Considering the foregoing, it is our opinion that the trial judge should not have granted the partial peremptory exception in this ease. The Plaintiffs have established a definitive interest in the suit as well as a capacity to bring the suit.

For the above and foregoing reasons, relief under the appeal is granted, the motion to dismiss appeal is dismissed. The Writ is vacated and the matter is remanded to the trial court for further proceeding in accordance with the view expressed herein. Ap-pellee is to pay all costs.

REVERSED AND REMANDED.

APPENDIX

LA. LAW REVIEW, VOL. 39, PAGE 911 —EXCEPTIONS PROFESSOR FRANK L. MARAIST’S COMMENT

EXCEPTIONS

If a petition alleges a single set of facts and seeks only one type of relief thereon under a single theory of liability, and the defendant contends that the plaintiff may not recover as a matter of law, the defendant may properly resist the demand through the peremptory exception urging no cause of action. What if the plaintiff seeks two different types of relief or the same relief under two or more theories of liability and the defendant contends that plaintiff may recover, as a matter of law, one, but not both types of relief, or under one, but not both theories? May he then urge his objection to the improper theory or demand through the peremptory exception urging no cause of action? The Louisiana jurisprudence is that if the petition does state a cause of action as to one of the theories or one of the demands for relief, the exception of no cause of action should not be maintained. The evil in maintaining such an exception is that the judgment rendered thereon becomes immediately appealable, resulting in a “piecemeal” trial of claims based upon the same facts. An illustration of the rule is Walker v. Western Southern Life Ins. Co., in which plaintiff sued his insurer for disability benefits and for damages for mental anguish, humiliation and inconvenience resulting from the failure to pay the benefits. The trial judge sustained defendant’s exception of no cause of action to the demand for the nonpecuniary damages, but on appeal the Second Circuit reversed, pointing out that the use of the exception to strike an element of claimed damages is an improper use of the procedural device.
The Second Circuit did not point out how the defendant should have objected to an improper demand or an invalid theory of recovery. The proper procedure apparently would have been a motipn to strike, but use of that device woul(l pose problems. One such problem is the limited time period within which such a motion may be urged. Another is the possibility that a judgment sustaining a motion to strike may be appealable, thus producing the same piecemeal litigation which prompted courts to prohibit the use of the peremptory exception urging a partial no cause of action. Perhaps a more satisfactory solution, suggested by Judge Lemmon of the Fourth Circuit, is:
“to overrule the exception and to admit evidence [relevant to the theory or demand which the trial judge has found insufficient] . . . only by means of a proffer. Then, after completion of the trial on the merits, the appeal, if any appeal is ever taken, would present all issues at one time.

       La.Code Civ.P. art. 927.

        Louisiana & Ark. Ry. Co. v. Goslin, 258 La. 530, 246 So.2d 852 (1971), appeal after remand, 300 So.2d 483 (La. 1974), cert. denied, 420 U.S. 963 (1975).

       361 So.2d 892 (La.App. 2d Cir. 1978).

        Id. at 894.

       La.Code Civ.P. art. 964.

       A motion to strike must be filed within ten days of service of the pleading; a defendant may move to strike within fifteen days of the service of the petition. La.Code Civ.P. art. 964.

        See La.Code Civ.P. arts. 1841, 2083.

        Tano Corp. v. Louisiana Health Service & Indem. Co., 355 So.2d 604 (La.App. 4th Cir. 1978) (Lemmon, J., concurring).

       355 So.2d at 607 (emphasis by the court).

        id. at 1094.


text:
    Patty Yvonne Nichols DICKERSON v. William DICKERSON, Jr.
    No. 82 CA 0173.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Leo Herrington, Baton Rouge, for plaintiff-appellee Patty Yvonne Nichols Dickerson.
    Walter C. Dumas, Baton Rouge, for defendant-appellant William Dickerson, Jr.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This court ex proprio motu issued a rule to show cause why this appeal should not be dismissed as untimely filed. The appellee, Patty Yvonne Nichols Dickerson, filed a motion with this court to do the same. The judgment appealed from concerns decrees of divorce, custody, child support, permanent injunctions, and contempt.

Judgment was rendered in open court, with counsel for both sides present, on September 8, 1981. On September 10, the judgment was signed in open court. It is apparent from the record that the judgment was prepared by the office of counsel for appellee and was presented to the trial court out of the presence of counsel for appellant.

This case was neither taken under advisement nor did appellant “make a request of record for notice of the date when the judgment was signed,” therefore, notice of the signing of the judgment was not required. La.Code Civ.P. art. 1913.

The applicable time period within which to appeal the divorce, custody and child support portions of the judgment is 30 days. La.Code Civ.P. arts. 3942 & 3943. The permanent injunctions are appealable within 60 days. La.Code Civ.P. art. 3612.

For the 30 day appeal, the time period expired on October 21, and for the 60 day appeal it expired on November 20, 1981. Appellant filed his motion for appeal on December 4, 1981, and thus the appeal is untimely and this court is without jurisdiction to entertain same.

Whether the contempt portion of the judgment should be reviewed by this court on appeal or an application for writs need not be decided here, because assuming the right to appeal, same is untimely.

Appellant in his brief in opposition to the show cause order argues that counsel for appellee promised to forward him a copy of the judgment as soon as same was signed, and that this would act as appellant’s notice of judgment. We need only note that there is a procedure in the Code of Civil Procedure for requesting notice of judgment. Additionally, agreements between counsel of which the court is expected to take cognizance must be in writing. Uniform Rule — Courts of Appeal, Rule VI, § 3.

Therefore, for the above and foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.