author: KLEES, Judge. REDMANN, Judge,

text:
    LEAMAN & COMPANY, INC. v. VICTORY IRON WORKS, INC., et al.
    No. 12600.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      A. D. Freeman, Satterlee, Mestayer, & Freeman, New Orleans, for plaintiff-appellant.
    B. Franklin Martin, III, McGlinchey, Stafford & Mintz, New Orleans, for defendant-appellee.
    Stephen L. Huber, Mut. Ins. Co., Metair-ie, for Liberty Mut.
    Before REDMANN, GULOTTA, and KLEES, JJ.
   KLEES, Judge.

The present suit is one for malicious prosecution by Leaman and Company, Inc., against Victory Iron Works, Inc., and its attorney Joseph E. Friend.

It arises from Victory’s attempt to collect the unpaid balance on a promissory note given to Victory for iron and iron works furnished in the construction of a local school by the general contractor-debtor, A. J. Toups Company, Inc. Included as defendants in the suit were Maryland Casualty Company, the statutory bond surety and its insurance agency, Leaman' and Company, Inc. Wherein it was alleged that Lea-man and Co. representing Maryland Casualty Company, had misrepresented certain facts to Victory which had prevented Victory from being paid and further that Lea-man and Maryland Casualty Company had guaranteed that Victory would be paid by Toups.

The note arose out of a compromise regarding a $14,500.00 debt owed Victory Iron Works, Inc., by A. J. Toups, Inc., in an attempt to protect Toups from bankruptcy. Though neither Leaman and Company, Inc., nor Maryland Casualty Company endorsed the note it was alleged that Leaman led Victory Iron Works, Inc., to believe that it had an uncollectable debt and that the only hope of recovering what was due was by accepting the promissory note. It was further alleged that Leaman assured Victory that they would “see to it” that the installments on the note were paid.

In the suit for collection the trial court granted summary judgment in favor of Leaman and Maryland Casualty and Victory Iron Works appealed. The Fourth Circuit reversed and remanded, finding that the claims of misrepresentation as they related to Leaman involved disputed facts which required trail on the merits. By the time the matter came to trial Toup’s condition had changed. Toups then settled with Victory Iron Works, Inc., and the suit against Toups was dismissed.

The claim against Leaman and Company was also dismissed over the objection of counsel for the defendant who wanted the plaintiff to present his case.

The present suit was filed alleging an “abuse of process” by Victory Iron Works, Inc. The defendant filed an exception of no cause of action which was sustained and plaintiff’s then amended its petition to state a claim for malicious prosecution.

After trial there was a directed verdict in favor of Defendants. Plaintiffs appeal asserting that the trial court erred in granting a directed verdict in favor of defendants. We Affirm.

In Eusant v. Unity Industrial Life Insurance and Sickness Benefits Association of New Orleans, Inc., 195 La. 347, 196 So. 554 (1940), reaffirmed in Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980) the Supreme Court set forth the elements that must be alleged and proven to recover in an action for malicious prosecution.

1. The commencement or continuance of an original criminal or civil judicial proceeding.
2. Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
3. Its bona fide termination in favor of the present plaintiff.
4. The absence of probable cause for such proceeding.
5. The presence of malice therein.
6. Damage conforming to legal standards resulting to plaintiff.

In this case the existence of the first three elements are clearly established. Plaintiffs argue however, that there was a lack of probable cause resulting from wanton and reckless disregard of the right of the party sued (Leaman) evincing absence of that caution and inquiry a party should employ before filing suit and that malice should be inferred. Nonetheless, probable cause does not depend merely upon the actual state of the facts, but upon the defendants’ honest belief of the facts in making the charge against the plaintiff. Culpepper v. Ballard, 344 So.2d 110, (La.App. 2nd Cir. 1977); Whittington v. Gibson Discount Center, 296 So.2d 875 (La.App. 2nd Cir. 1974). The reasonableness of defendants’ belief is a question to be determined by the trial court in light of the circumstances existing at the time. Harvey v. Bertaut, 803 So.2d 211 (La.App. 4th Cir. 1974).

The existence of malice may be met either by proof of actual malice, or by inference when there is a lack of probable cause resulting from wanton and reckless disregard of the rights of the party sued evincing absence of caution and inquiry a party should employ before filing a suit. Hibernia National Bank of New Orleans v. Bolleter, supra.

Furthermore, Louisiana courts have not looked upon malicious prosecution suits with favor. In Blanchard v. Employers Liability Assurance Corp., 197 So.2d 886 (La.App. 2nd Cir. 1967), the court said:

“Actions for malicious prosecution, especially those of a civil nature, have never been favored, and in order to sustain them a clear case must be established as where justice has been perverted for the gratification of private malice”. 197 So.2d at 389

Public policy requires that all persons have the right to resort to the Courts for redress of wrongs, and the law protects them when they act in good faith and upon reasonable grounds commencing a civil proceeding. Hibernia National Bank of New Orleans v. Bolleter, supra; Johnson v. Pearce, 813 So.2d 812 (La.1975).

Here Plaintiff has failed in his burden to prove there is evidence or inference that the action by Victory Iron Works through Mr. Friend lacked probable cause or was motivated by “specific malice”. Rather, Leaman and Company took an active role in the negotiations of the note and in the assurance of payments. When the note came due Victory filed suit not only against the debtor but also Leaman and Company and Maryland Casualty alleging their liability as guarantor of Toup’s debt or alternatively, for misleading of Victory into not filing suit by not disclosing the availability of funds to pay the claim and by telling Victory that suit would put Toups out of business.

The district court granted summary judgment in favor of Leaman and Company and Maryland Casualty in the collection suit. On appeal, however, this court reversed as to Leaman and Company finding that although there was no legally binding guarantee, that a claim might exist for fraud or misrepresentation in convincing Mr. As-phrodites (the President of Victory Iron Works) not to pursue his claim against the bonding company. Victory Iron Works, Inc., v. A. J. Toups Co., Inc., 261 So.2d 712 (La.App. 4th Cir. 1972).

On remand, Leaman and Company relies on the deposition of Asphrodites, taken after the rendering of the decision by this court, which seems to indicate that he and Mr. Leaman discussed the possibility of recovery from Maryland Casualty. However, at trial of the instant case, Mr. Asphrodites testified that his deposition was in error and that he and Leaman had never discussed the existence of a bond. Mr. As-phrodites testified that regardless of his knowledge of the existence of the bond, he was misled by Leaman into not pursuing his rights against the bonding company.

We conclude the appellant has shown that there was probable cause as defined by prior jurisprudence, sufficient to warrant the filing of the suit. The action was not based on malice, as required in a claim for malicious prosecution, but grounded in the strong feeling of Mr. Asphrodites that he had been purposefully misled in preserving his claim against the surety.

Concerning the claim of malicious prosecution against Victory’s attorney, Joseph E. Friend, the trial court could find no evidence that Mr. Friend was motivated by “specific malice” to file suit and stated:

But I do feel that Mr. Friend had no malice towards Leaman. I do feel that there was enough of a probable cause for him to feel that the way Mr. Asphrodites recited the facts to him, i.e., that as feeling that Leaman was in fact the Maryland Casualty Company in essence, that he was the bondsman, that there was some basis for probable cause for a lawsuit to be filed herein.

We conclude that the record supports the trial court’s findings and accordingly the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

Louisiana’s statutory law, C.C. 2315, requires only “fault,” and not malice for delic-tual liability: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The “fault” must be sufficient, however, to outweigh the strong public policy of open courts, La.Const. art. 1 § 22, and no such fault is shown here. See dissent, Spencer v. Burglass, 337 So.2d 596, 602 (La.App. 4 Cir. 1976), writ denied 340 So.2d 990 (La.1977).


source: Caselaw Access Project

author: AUGUSTINE, Judge.

license: Public Domain

text:
    Rita Schneider, Wife of/and Joseph SCHNEIDER v. PROCTOR AND GAMBLE MANUFACTURING CO., INC., Proctor and Gamble Distributing Co., Inc., and Commercial Union Assurance Companies.
    No. 12382.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Charles A. Boggs, Boggs, Loehn & Ro-drigue, New Orleans, for defendants-appel-lees.
    Steven M. Koenig, Heisler & Wysocki, New Orleans, for plain tiff-appellant.
    Before GARRISON, WARD and AUGUSTINE, JJ.
   AUGUSTINE, Judge.

Rita arid Joseph Schneider sought recovery from Proctor and Gamble Manufacturing Co., Inc., for injuries caused by swallowing an open safety pin allegedly contained within a can of Pringles potato chips.

Upon trial of this matter before Commissioner Charles Rivet, judgment was rendered in favor of defendant Proctor and Gamble. Rita and Joseph Schneider bring this appeal, seeking reversal of the Commissioner’s finding.

The Commissioner’s determination was based upon a specific finding of fact, i.e., that the safety pin ingested by Rita Schneider did not come out of the can of Pringles.

We will not disturb pure findings of fact by a trial court unless the record reveals these findings to be “manifestly erroneous.” Canter v. Koehring Go., 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Upon review of the record as a whole, we find no facts sufficiently favorable to the plaintiff as to warrant our conclusion that the trial court’s judgment was “manifestly erroneous.” Accordingly, we affirm.

The trial testimony and medical reports (notably x-rays) offered by plaintiff established beyond any doubt that Rita Schneider did in fact swallow an open safety pin, that she was admitted to Charity Hospital on August 24, 1976, and that the pin was surgically removed on August 25.

Beyond this, nearly every fact surrounding the true cause of plaintiff’s injury was in dispute.

According to plaintiff’s account, on Friday, August 20, 1976, she and her husband Joseph were seated at their kitchen table conversing with a friend, Doliska Ragsdale. Although the others were drinking coffee, the only thing consumed by plaintiff at that time was Pringles potato chips. The Schneiders testified that plaintiff had been eating the chips, slowly chewing them with her gums and the roof of her mouth (Mrs. Schneider had only three teeth), then ingesting the rest. After she had swallowed a number of chips in this manner, Mrs. Schneider began to choke. Her husband got up and patted her on the back, but to no avail. She tried to drink water, but could not. She stopped choking after a short while, but felt great pain in her throat and was unable to swallow anything. She remained at the table with her husband and Miss Ragsdale for a few minutes, but then left the table to lie down in her bed when the pain in her throat became unbearable.

Later that evening, she complained to Mr. Schneider that the pain had gotten worse. He looked at her throat and told her it appeared as though her tonsils were swollen. Plaintiff testified that later that night the pain became so great that she could not sleep.

Mrs. Schneider said that during the entire day of Friday, August 20, she had consumed nothing before eating the chips and that she was unable to eat or drink anything thereafter.

On Saturday, plaintiff sent her son to the drug store for a common green medication, but it had no effect on her condition. Again on Saturday, plaintiff spent a painful, sleepless night, having consumed neither food nor drink the entire day.

On Sunday, by plaintiff’s account, her son drove her to Charity Hospital where she was examined by an intern who, finding only that her throat was infected, ordered a two-week prescription for penicillin. She was released that same day without having been admitted to the hospital.

According to Mr. and Mrs. Schneider (and their son Joseph), plaintiff was finally admitted to Charity Hospital at noon on Monday, August 23. She was x-rayed at about 3:00 p. m., at which time it was discovered that an open safety pin was lodged in her throat. Efforts to remove the pin without surgery were unsuccessful, so she was operated upon later that night.

Plaintiff remained in the hospital for nine days after surgery. She had been scheduled for further quasi-surgical treatment, but having decided against undergoing any more operations, plaintiff “deserted” the hospital, i.e., left against medical advice.

Plaintiff insists that she neither ate nor drank anything between Friday morning and the late-night surgery of Monday, August 23.

Considering all the testimony on the foregoing points, Commissioner Rivet regarded the following facts as significant to his reasoning:

1. Plaintiff offered nothing to substantiate testimony that she had been treated by an intern at Charity Hospital on Sunday, August 22, 1976. Plaintiff further testified that she had been admitted to the hospital on Monday, August 23.
Hospital records were to the contrary, however. They revealed that Mrs. Schneider’s admission was on Tuesday, August 24, and not the previous day as plaintiff insisted.
2. Plaintiff is an admitted diabetic.
3. Plaintiff was unable to chew the potato chips except by mashing them with her three teeth and gums.
4. Ms. Ragsdale did not testify or even appear at trial, despite having received personal service of the subpoena for trial.
5. The can of Pringles potato chips and its remains were not submitted in evidence.

From these conclusions of fact, Commissioner Rivet reasoned that:

1. If plaintiff had gone without food or drink as she had stated, it was for a period of five days, and not four. The Commissioner did not believe it probable that a diabetic such as Mrs. Schneider could have gone such a length of time without severe physiological reaction. Therefore, either the pin was swallowed some time after Friday, August 20, or plaintiff had consumed food and/or drink since that date. Both of these conclusions flatly contradict plaintiff’s account.

2. It is improbable that a person might slowly chew an open safety pin without knowing it. It is even more unlikely that a person with no teeth could chew a pin and not feel it against the gums or roof of the mouth.

3. Ms. Ragsdale’s failure to testify raises the presumption that her testimony would not have been favorable to the plaintiff. La.R.S. 15; 432.

4. Plaintiff’s failure to produce the original can made it impossible for the trial court to determine that the safety pin probably found its way into the can from an extraneous source.

A trial judge is able to assess first-hand the many factors which bear on credibility — the witness’ demeanor, the conviction with which his account is expressed, and the intangibles which inform an experienced fact-finder and enable him to separate truth from fiction. An appellate record cannot hope to faithfully reproduce these factors. The trial judge is therefore accorded great deference in his measurement of credibility.

In the present case, however, it is not out of pure deference that we confirm the Commissioner’s findings. Plaintiff’s account is patently unbelievable and is replete with inconsistency, contradiction and implausibility. In light of the defendant’s extensive testimony regarding the method of production at its plant and the attention given to insure that foreign objects do not enter the cans of potato chips, we must agree with the trial court that it is highly improbable for an open safety pin to have entered the can during any phase of production and then be consumed by the plaintiff without her knowing it.

Finally, plaintiff assigns as error the refusal to admit into evidence the deposition of Doliska Ragsdale. This is a matter to which the trial court is assigned great discretion. Harrison v. State Department of Highways, 375 So.2d 169 (La.App. 2nd Cir. 1979). Given that Ms. Ragsdale’s testimony would have merely repeated that which had already been stated in the testimony of plaintiff and her witness, there was no abuse of discretion in refusing to admit the deposition into evidence.

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

AFFIRMED.


text:
    Kenneth BRADY d/b/a Brady’s Automobile Repair v. Stanley BLACKMAN. Stanley BLACKMAN v. Bill BUSHNELL d/b/a Brady’s Automobile Repair.
    Nos. 12527, 12528.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Stanley Blackman, in pro. per.
    Irving B. Shnaider, New Orleans, for defendant and appellant.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   AUGUSTINE, Judge.

On April 8, 1980, plaintiff Stanley Black-man was driving a 1965 Buick Special near the intersection of Franklin Avenue and Claiborne Avenue when it suddenly broke down. Finding Brady’s Automobile Repair only a half-block away, plaintiff brought the car into the shop and engaged the services of the owner, Kenneth Brady.

After a short inspection of the car, Brady informed plaintiff Blackman that the fuel filter, gas hose, and distributor would have to be repaired or replaced. Blackman then left the shop, having agreed that the work should be done.

Blackman returned the next day and, the work on the car completed, paid the bill of $25.76 and signed the mechanic’s work order. Brady cautioned the plaintiff that additional work would be required to put the carburetor in good condition. Blackman, however, did not care to have the carburetor repaired at that time.

Three days later came the deluge of April 13, 1980, which left many cars stranded throughout the city. Blackman’s was among them, having taken on water, and could not be moved except by tow wagons. He called Brady, who agreed to tow the car back to the shop, the $25.00 tow fee to be paid by Blackman unless the breakdown was caused by defendant’s earlier workmanship.

Upon the car’s arrival at the shop three days later, Brady diagnosed the problem as poor carburetion. Since, in Brady’s opinion, this malfunction was not in any way connected with his earlier work, defendant demanded of plaintiff the $25.00 tow fee. When Blackman refused to pay, Brady informed him that pursuant to his mechanic’s lien, he would retain possession of the car until the debt was satisfied and in addition, charge $5.00 per day for storage.

Two weeks later, Blackman was on a business errand in the neighborhood of defendant’s shop and saw his automobile parked on the street. It had apparently been hit by another car, as there was a noticeable dent in the door that had not been there when he last saw it. Blackman brought this to Brady’s attention, and there was, as expected, a dispute over who should bear the cost for repairing the dent.

Several weeks later, on the morning of Monday, May 12, 1980, plaintiff was again in defendant’s neighborhood and saw that his car had been burglarized. Blackman called the police and reported his entire car stereo unit missing: four speakers, an “equalizer” and a cassette recorder valued at approximately $390.00. Defendant admitted that he had “stored” the automobile on the public street for the entire weekend.

Plaintiff filed the present action for damages to the ear and loss of the car stereo. Defendant reconvened, alleging that Black-man owed him $325.00 for storage and the unpaid tow fee.

The trial court awarded $337.16 to the plaintiff and further ordered defendant to inflate Blackman’s tires. Blackman was ordered to pay $25.00 to Brady for the tow fee. Brady now appeals.

We affirm. The contractual relationship between an automobile repairman (such as Brady) and his customer is that of bailor-bailee, and is governed by the Louisiana Civil Code Articles concerning Deposit, Arts. 2926, et seq.

A deposit, in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind. Art. 2926.

Although, strictly speaking, the deposit is essentially gratuitous (Art. 2926), the Civil Code does recognize compensated deposit as one of its species. Art. 2938(2).

The gratuitous depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. Art. 2937. The compensated depositary, however, owes a higher standard of care, as Art. 2938(2) provides that the foregoing duty is to be “rigorously enforced” if it has been agreed that he (the depositary) shall have a reward for preserving the deposit.

Once the depositor establishes loss or damage to the object of the deposit, it shall be presumed that the loss or damage was caused by the breach of defendant’s duty, defined above. Defendant’s lack of fault, being an affirmative defense, must be pleaded and affirmatively proved if the defendant is to prevail. La.Code of Civil Pro. Art. 1005.

Regarding the sphere of repairman’s duty, it has been held that he is responsible not only for the automobile itself, but also for its contents, provided he has actual or constructive knowledge of them. Insurance Co. of North America v. Solari, 370 So.2d 503 (La.1979). Mintz v. Audubon Insurance, 140 So.2d 809 (La.App. 4th Cir. 1962).

On the basis of the foregoing principles, we find the defendant liable as a compensated depositary for damages occasioned by the burglary of Blackman’s automobile and the theft of his stereo system.

That the defendant was a depositary cannot be disputed, nor does he deny that he sought compensation for the deposit.

Brady’s duty to the depositor extended beyond the car itself to include the plaintiff’s stereo system, as this is an item which must be regarded as an integral accessory to the automobile. The defendant is therefore charged with constructive knowledge of its existence. Travelers Insurance Co. v. General Auto Sales, Inc., 220 So.2d 738 (La.App. 4th Cir. 1969).

Additionally, one of Brady’s own mechanics, Paul Gautier, had noticed the stereo system inside plaintiff’s automobile while it was in the defendant’s shop. Gautier’s actual knowledge is therefore imputed to his employer Brady.

Given that the stereo system was within Brady’s sphere of duty as a compensated depositary, the question remains whether Brady’s acts constitute breach.

We find that the defendant did not carry the burden of proving his lack of fault. The record reveals that he allowed plaintiff’s car to frequently remain on the street without protection of any kind for almost an entire month.

On at least two occasions, the automobile was left on the street for the entire weekend. Sometime during the first of these weekends, plaintiff’s automobile was noticeably dented, probably after having been hit by another car. Although plaintiff complained of this fact to defendant, his plea for better protection apparently went unheeded. As the record reveals, the subsequent burglary of Blackman’s car was discovered early in the morning on May 12, 1980, a Monday; the car had again been left on the street the entire weekend.

The burglary of Blackman’s car was certainly a foreseeable risk, perhaps even a predictable act, given the length of time it was allowed to remain vulnerable. We can easily imagine that to the casual observer, the automobile appeared abandoned, and to the thief, it was an easy mark.

Under very similar circumstances, this court has held that, “the law is clear to the effect that the defendant has no right to abandon plaintiff’s vehicle on the public streets even if he did not possess the money to complete the payments (for repair) . . . In this case, the defendant’s remedy was to sequester the automobile and effect its sale in order to realize the unpaid balance due on the contract, if any. If the work was indeed performed by him, his statutory remedy should have been pursued.” Woodard v. St. Cyr, 201 So.2d 205 (La.App. 4th Cir. 1967).

We find that having unnecessarily created the risk of loss, it is Brady rather than Blackman who must bear the consequences.

Defendant contends, however, that his liability is extinguished by virtue of a clause appearing on the work order, signed by the plaintiff, which disclaims liability for damage or theft. For this clause to have legal effect, it must be affirmatively shown that the plaintiff had actual knowledge of it and that he assented to its terms. Grabert v. James C. Noel Flying Service, Inc., 360 So.2d 1363 (La.App. 3rd Cir. 1978); Guillot v. Kaplan Farmers Co-op, Inc., 352 So.2d 402 (La.App. 3rd Cir. 1977).

The document to which Brady refers was signed after the first deposit was terminated (i.e., after Brady had completed the work on Blackman’s car when it was brought in for repair the first time). But Blackman signed no such work order governing the second deposit of his car with Brady. It was during this later deposit that Black-man’s car was burglarized.

We cannot infer from Blackman’s belated signature on the work order limiting Brady’s liability for the first deposit his intent to release Brady from liability for the second deposit.

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

AFFIRMED.


author: BYRNES, Judge.

text:
    Succession of Walter D. NEGROTTO, Sr.
    No. 12775.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Morris B. Phillips, New Orleans, for defendant-appellant.
    Thomas F. Boyle, Ana-Valli Gordon, Me-tairie, for plaintiffs-appellees.
    Before BARRY, BYRNES and WARD, JJ.
   BYRNES, Judge.

This is an appeal from a judgment ordering collation by Walter D. Negrotto, Jr., son of the decedent, of a piece of immovable property located in Orleans Parish subject to a credit of a down payment made on this property. The appellant also appeals a ruling of the lower court finding that additional property located in St. Tammany Parish purchased by the appellant’s sister Betty Negrotto Zane, from the decedent, is not subject to collation.

Walter D. Negrotto, Sr., died intestate on December 6, 1978. He was survived by his widow and only children, namely, Walter D. Negrotto, Jr., and Betty Jane Negrotto Zane.

Walter D. Negrotto, Jr., qualified as the administrator of his father’s sucession and in connection therewith filed a sworn descriptive list of assets owned by the decedent.

His sister moved to traverse this descriptive list alleging that two pieces of real estate had been conveyed by their father to her brother in the form of cash sales, when they were nothing more than donations by the decedent and his wife. Her brother answered the rule to traverse and collate by denying the sales were donations, but in the alternative claimed certain credits for the work done on the properties if collation was required.

Appellant in his deposition admitted that the sale was not purported, that he did not pay the stipulated purchase price of $18,-000.00, but instead paid the sum of $3,000.00 down, with the balance of the recited consideration being paid in installments of $500.00 bi-monthly until paid in full. He further testified that $2,400.00 of the down payment came from his wife’s savings account with the remaining $600.00 paid in cash. Negrotto, Jr., further testified that he paid $500.00 every other month until the note was paid in full, however, he failed to offer any receipts in evidence indicating that these payments were made. His mother, Lillian Negrotto, testified that money was paid every now and then, $500.00 at a time, for a six year period. However, the court found this testimony questionable since Mrs. Negrotto was deaf and quite possibly not cognizant of the reasons for which the money was paid. No other testimony nor additional evidence in the record indicated that the payments were made for the property.

As support for the lack of receipts and records, appellant repeatedly urged at trial that the decedent was not in the habit of giving receipts “within the family”. There was, however, testimony by Miss Rhonda Riley, a granddaughter of the decedent, that she had borrowed $1,900.00 from her grandfather and that records indicating repayment were kept by the decedent.

The trier of fact is in a pivotal position in determination of the credibility of the witnesses. Absent an abuse of discretion, the appellate court must give the greatest credence to his factual determinations. Canter v. Koehring, 283 So.2d 716 [La.1973].

The careful reading of the record before this court leads us to no other conclusion but that the lower court exercised sound and proper judgment in determining the facts and the law as applied and did not believe that Mr. Negrotto, Jr., actually made these cash payments. Further, the trial court maintains as do we, that no great weight can be attached to the testimony of Lillian Negrotto, concerning her remberances of any payment.

Collation may be ordered under the provisions of Civil Code, Art. 1248 which provides that:

“The advantage which a father bestowes upon his son, through any other manner than by donation or legacy, is likewise subject to collation. Thus, when a father has sold a thing to his son at a very low price, or has paid for him the price of some purchase, for [or] has spent money to improve his son’s estate, all that is subject to collation”.

The appellant argues that the court, in order to find collation, must find under the clear wording of this article that Walter Negrotto, Sr., sold the said property to his son at a “very low price”. The appellant further argues that the court cannot make this finding in the instant case because Betty Negrotto Zane failed to offer any proof as to the value of the said real estate. The trial court must have placed a value on the property based upon the amount of the note given for the property, that is, $18,000.00. The court further found that only $2,400.00 of that price was substantiated in the record. Therefore the lower court was correct in ordering collation of the Esplanade property with a credit for the $2,400.00 paid.

As to the credits claimed by the appellant, Negrotto, the trial court succinctly stated in his reason for judgment:

“Collation is a strong presumption of Louisiana law and absence of receipts are overwhelming proof, the court will not accept the testimony of the parties of interest.”

In this instance, proof of the work performed by the appellant, Negrotto, was not documented by anything other than his testimony. Absent any concrete evidence and receipt, we must agree with the trial court’s decision to deny Negrotto’s claim for reimbursements of services allegedly rendered.

There is no merit to his claim that the St. Tammany property should be collated. Some monies used to pay for the property came from Walter Negrotto, Sr., in the amount of $3,335.44. However, this money is part of a total amount of $4,302.79 given by the decedent to his daughter and was ordered by the trial court to be collated. The sum of money used for the St. Tammany property was an advantage and as such, it, rather than the property, must be collated.

We therefore affirm the trial court’s decision in toto, with all costs to be borne by appellant.

AFFIRMED.


author: CIACCIO, Judge.

text:
    DECATUR-ST. LOUIS COMBINED EQUITY PROPERTIES, INC. VENTURE and Combined Equity Properties, Inc. and E. Ralph Lupin, M.D. v. R. Clyde ABERCROMBIE and Leon J. Impastato.
    No. 12706.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      James E. Stovall, Jackson & Stovall, New Orleans, for plaintiffs-appellants.
    Frank J. D’Amico, A Professional Law Corp., Joseph V. Bologna, New Orleans, for defendants-appellees.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment maintaining exceptions of no cause of action and no right of action and dismissing plaintiffs’ suit. A motion for new trial was denied and plaintiffs filed a devolutive appeal.

The plaintiffs-appellants are Decatur-St. Louis Combined Equity Properties, Inc. Venture, a Louisiana partnership in com-mendam, Combined Equity Properties, Inc. and Dr. E. Ralph Lupin. The defendants-appellees are R. Clyde Abercrombie and Leon J. Impastato. Petitioners filed a suit for a declaratory judgment or, alternatively, specific performance, seeking equitable relief against the defendants.

The petition alleges that Decatur-St. Louis Combined Equity Properties, Inc. Venture, is a Louisiana partnership in com-mendam duly organized under the laws of the State of Louisiana and formerly named Decatur-St. Louis Joint Venture and thereafter named Decatur-St. Louis Lupin Properties Venture; that the original partnership, Decatur-St. Louis Joint Venture was formed in June of 1976 and thereafter acquired properties in the 500 block of Decatur Street for the purpose of restoration and development, including a hotel and associated facilities; that the original partnership of Decatur-St. Louis Joint Venture was comprised of Drs. Arnold Lupin and E. Ralph Lupin and the defendants, Abercrom-bie and Impastato.

The petition further states that on or about September 1, 1978 the defendants, Impastato and Abercrombie, together with one of the petitioners, Dr. E. Ralph Lupin, purchased the property at 507 Decatur Street by means of an act of sale and resale from the Algiers Homestead Association; that the title to said property was placed in the name of the individuals for convenience only and that the purchase was made, in fact, for the partnership; that the purchase price was paid with partnership funds; and that the three named vendees held said property as fiduciaries and trustees on behalf of the partnership. It is alleged that the partnership paid the taxes and insurance on the property and one of the owners of record, Dr. E. Ralph Lupin, acknowledges and ratifies that the property was purchased in the names of Dr. E. Ralph Lupin and the two defendants for the account of the partnership.

The petition recites various acts of the defendants showing that they acknowledged and ratified that the property at 507 Decatur Street was partnership property. Specifically, the petition refers to a lease executed on September 1, 1978 by the defendant Abercrombie wherein a portion of the subject property was leased to Pazazz Shops, Inc. represented by its secretary-treasurer, Linda D. Abercrombie, with the lessor being named as Decatur-St. Louis Joint Venture and with the defendant, Abercrombie, appearing and signing the lease on behalf of Decatur-St. Louis Joint Venture, which appearance is attested to by an affidavit executed before a Notary Public. It is also alleged that both defendants signed a private placement memorandum for potential investor review which acknowledged that the property at 507 Decatur was partnership property and that both defendants executed an authentic act of amended articles of partnership which again acknowledged and ratified that 507 Decatur was partnership property. Although reference to these various documents was made in the petition it appears that copies of the written instruments were not annexed at the time the petition was filed.

It is alleged that both defendants acknowledged and ratified that the property was purchased on behalf of the partnership by making rental payments and leasehold demands upon the partnership on behalf of the lessee until August 29, 1980 when the defendants ceased to pay rental on the property and asserted that the property was owned by them individually. It appears that the defendants physically changed the locks on the property on January 24, 1981.

The petition seeks a declaratory judgment vesting title to the subject property in the name of the partnership, or in the alternative, specific performance of the amended partnership articles requiring the defendants to transfer their interest in said property to the partnership.

In the further alternative, it is claimed that one of the petitioners, Combined Equity Properties, Inc., purchased the defendants’ interest in said partnership on October 3, 1979, that 507 Decatur Street constitutes a portion of defendant’s interest in said partnership and, accordingly, was conveyed to Combined Equity Properties, Inc., and relief is requested by declaratory judgment or specific performance of said agreement.

The defendants’ exception of no right of action claimed petitioners did not own the property and therefore had no right of action and that the petition stated no cause of action since petitioners were attempting to prove title by parol evidence. The court, without argument, granted both exceptions, and refused to allow the admission of any evidence on the no right of action exception.

Petitioners filed a motion for new trial and annexed to that motion the documents referred to in the petition. The motion for new trial set out various errors complained of, including the failure of the court to allow petitioners to amend their petition. Upon denial of the new trial petitioners filed this appeal.

Our review of the record convinces us that the trial court erred in maintaining the exceptions of no cause of action and no right of action and, accordingly, the judgment of the trial court is reversed, and this case is remanded for trial consistent with the views expressed herein.

Plaintiffs complain that the court erred in not allowing them to present any evidence whatsoever, in not allowing them to interrogate the defendants, nor allowing them to amend their petition in any particular. We agree. Plaintiffs were entitled to introduce evidence in connection with the exception of no right of action. La.Code Civ.Pro. Art. 931; Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979). Further, La.Code Civ.Pro. Art. 934 allows the amendment of a petition when the grounds of the objection pleaded by peremptory exception may be removed by amendment. Plaintiffs should have been allowed to amend in order to allege such other facts as may have cured the defects complained of, and may file amendments to their original petition upon the remand of this case to the trial court.

We find that the petition states several causes of action. The exception of no cause of action must be decided on the face of the petition and everything in the pleadings and attached documents is accepted as being true. The petition asserts a constructive trust on behalf of the partnership. A partner can purchase property in his own name for and on behalf of a partnership, Darden v. Cox, 137 So.2d 898 (La. App. 1st Cir. 1962). Legal title may vest in the individual but equitable title vests in the partnership and a suit for a declaratory judgment is an appropriate action to have the partnership declared to be the owner of the subject property. The Darden case involved an oral partnership and the court held the property purchased in the name of an individual partner but with partnership funds and used in the conduct of the partnership business belonged to the partnership. Although the Darden case involved a judicial partition of the partnership assets it was an action between partners and we find no distinction' between that case and the action between partners alleged in the instant case. Plaintiffs should have been allowed to proceed with the proof of this cause of action including the admissibility in evidence of partnership records, cancelled checks, partnership agreements and any other competent evidence admissible for the purpose of proving this claim.

We find that the petition states an alternative cause of action wherein it seeks specific performance of the amended articles of partnership. Copies of these articles filed in this record show they were executed by authentic act, that the defendants were signatories thereto, and that the articles were duly recorded in the public records. The subject property, 507 Decatur Street, is listed in the articles of partnership as property owned by the partnership. The partnership sought specific performance of the defendants’ obligations as trustees and fiduciaries of the partnership. Appellant cites the case of W. A. McMichael Construction Co. v. D &W Properties, Inc., 356 So.2d 1115, 1122 (La.App.2d Cir. 1978) in defining the fiduciary duties imposed upon partners and declaring that the fiduciary duty continues through the sale or purchase of a partner’s interest or through termination and liquidation of the partnership. Plaintiffs state a cause of action in seeking a judgment ordering the defendants to perform their fiduciary obligations to the partnership as well as to the other partners.

Defendants contend that since the petition and exhibits clearly show that plaintiffs have no written proof of title to real property that the court must, as a matter of substantive law, dismiss the action. Defendants rely upon a long line of cases which hold inadmissible, under the provisions of Art. 2275 of the Civil Code, parol, verbal, or testimonial proof of a claimed title interest. All of the cases cited by defendants excluded the admissibility of verbal claims to ownership of real property and none of them excluded written evidence which would tend to prove that a party other than the owner of record was in fact the true owner of the property.

Counsel for defendants acknowledge in their brief that counterletters are exceptions to the parol evidence rule. Documents executed by the defendants acknowledging ownership of the property in the partnership are admissible in evidence as counterletters signed by the owners of record. The instruments require no special form except they must be in writing. Counterletters are binding between the parties. (La.Civ.Code Art. 2239).

The trial court should consider the legal effect of the articles of partnership signed by defendants, the affidavit of the defendant Abercrombie acknowledging ownership of the subject property in the partnership and the lease of the property signed by the defendant Abercrombie on behalf of the partnership, to determine whether or not these documents constitute a valid counter-letter recognizing ownership of the property in the partnership. Likewise, the testimony of petitioner, Dr. E. Ralph Lupin, one of the owners of record, is admissible as an exception to the parol evidence rule as it does not apply in a controversy between parties on the same side of a written instrument. Wampler v. Wampler, 239 La. 315, 118 So.2d 423 (1960).

For the reasons assigned the judgment of the trial court is reversed and this case is remanded for trial consistent with the views expressed herein. All costs of this appeal to be borne by defendants-appellees.

REVERSED and REMANDED.


text:
    GERTRUDE GARDNER, INC. v. Anthony J. CAMPO.
    No. 12317.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Carl W. Cleveland & Associates, Carl W. Cleveland, New Orleans, for defendant-appellant.
    Post, Reinhardt & Rougelot, Daniel A. Post, Metairie, for plaintiff-appellee.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

This is an action in contract to recover a real estate commission and attorney’s fees claimed to be due under the terms of a written purchase agreement. The trial court granted a summary judgment in favor of plaintiff, Gertrude Gardner, Inc., and against the defendant, Anthony J. Campo, for real estate commissions in the sum of $3,423.00 together with attorney’s fees of $1,141.00, from which judgment defendant filed a suspensive appeal.

Gertrude Gardner, Inc., the real estate broker, was employed by Campo to sell a certain piece of real estate located at 300-304 Mouton Street in the City of New Orleans, under the terms of a standard listing agreement executed by both parties. The broker located the prospective purchasers, Mr. and Mrs. Richard N. Gonzales, who offered to buy the property for $81,500.00, conditioned upon the ability of purchasers to borrow the sum of $73,000.00 from a homestead under the terms set out in the purchase agreement, and this offer was accepted by defendant. The agreement further stipulated that should the homestead loan be unobtainable within thirty to forty-five days from acceptance of the offer, that the contract shall then become null and void, and the agent was authorized to return the purchasers’ deposit in full. Upon acceptance of the offer purchasers were required to make a deposit of $2,000.00 cash, plus a demand note for $6,150.00, with the real estate broker. Seller further agreed to pay the real estate agent’s commission of 6% of the purchase price to be divided between Gertrude Gardner, Inc. and Franzella Real Estate, a cooperating broker.

In accordance with the terms of their offer, Mr. and Mrs. Gonzales applied to the Fidelity Homestead Association of the City of New Orleans and were successful in obtaining a loan commitment as stipulated in the purchase agreement. The Homestead’s attorneys examined Campo’s title to the real estate, found that the title was defective in certain particulars, and refused to approve the execution of a vendor’s lien and privilege in favor of the Homestead unless the' defects complained of were corrected. The seller undertook to cure the alleged title defects through the services of his own attorney.

Since the curative work was quite complex, seller and purchaser executed several written extensions of the date for passage of the act of sale, extending the date from July 1, 1978 to July 31, 1978 and then to November 15, 1978. Campo’s attorney was unable to complete the curative work to the satisfaction of the Homestead’s attorneys by November 15, 1978, and the parties did not execute any further agreements extending the date for passage of the act of sale. Campo did not tender title on November 15, 1978 nor on any subsequent date.

On February 12, 1979 Campo addressed a letter to Gertrude Gardner, Inc., authorizing the return of the deposit to Mr. and Mrs. Gonzales but denying that the sale was not concluded because of seller’s failure to deliver a merchantable title. The deposit was refunded to the purchasers and Gertrude Gardner, Inc. then filed suit to collect its real estate agent’s commission claimed to have been earned upon the signing of the agreement of sale and purchase.

In support of a motion for summary judgment, plaintiff filed affidavits of the purchaser and broker, and documents reflective of the transactions of the parties. In opposition to the motion for summary judgment defendant filed an affidavit alleging his continued willingness to convey title, a description of the curative title work carried out by his attorney, together with the allegation that Campo understood that the purchasers were no longer interested in purchasing his property and that he consented to the refund of the purchaser’s deposit in the belief that this would bring the entire matter to a close, with the agent abandoning any claims for a commission.

On appeal Campo asks for a reversal of the summary judgment and requests that this case be remanded for a trial on the merits urging that there are genuine issues of material fact. He further urges in defense to suit that a real estate broker is not entitled to recover a commission when the real estate transaction is not consummated due to a lender’s refusal to accept title, nor is the broker entitled to recover a commission if the vendor makes reasonable efforts to cure alleged title defects. Finally, Cam-po claims that plaintiff waived its claims for commissions when it refunded the deposit to the purchasers.

Both plaintiff and defendant rely upon the decision of Leaman v. Rauschkolb, as controlling in our determination of liability for the payment of an agent’s commission when a sale of real property is not consummated due to the failure of vendor to deliver a merchantable title. 1 So.2d 338 (La. App., Orleans, 1941). In the Leaman case the broker located a purchaser for defendant’s property, a purchase agreement was executed predicated upon homestead financing with the seller agreeing to pay a stipulated real estate commission. The purchasers obtained a homestead loan commitment, the homestead’s attorney notified the seller that the title to the property was defective, the seller refused to recognize the defects and maintained that he had good and marketable title and nothing further was done either by seller or purchasers until the agent brought suit to recover his commission, alleging the commission was earned upon the signing of the agreement of sale and purchase. In granting judgment in favor of the real estate broker the court reasoned as follows:

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“We discern, therefore, that it is the view of the Supreme Court that agency contracts of this kind should be interpreted to mean that the vendor hires the real estate agent with the intention of becoming liable for a commission only in the event a sale of the property is consummated; that explicit provisions to the contrary contained in the contract will not be enforced, since, to do so would lead to an absurb consequence and that the vendor is not responsible for a commission in the event the sale is not consummated unless (1) it appears that he, the vendor, was at fault in that he refused to convey the title to the purchaser without cause or (2) unless he is unable to consummate it because his title, at the time he agreed to sell, was not marketable.” (Emphasis Supplied). 1 So.2d 338 at 341 (La.App., Orleans, 1941).

The Court cited the Supreme Court decision of Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556, and reaffirmed that the right of the agent to a commission is not in any way dependent upon the validity of his principal’s title and, quoted the wording of the Supreme Court:

“The broker, in such a case, in the absence of notice to the contrary, has the right to act upon the assumption that his principal has a marketable title.”

Campo argues that his case is distinguishable from the Leaman case because he made substantial good faith efforts to cure the alleged defects in his title. We cannot agree with this distinction. Since the right of the agent to a commission is not in any way dependent upon the validity of his principal’s title the good faith of the seller in attempting to cure an unmarketable title is immaterial. Moreover, the facts in this case are even more compelling in favor of the agent than in the Leaman case. The purchase agreement contains the following language:

“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof, and reserving unto agent the right to recover commission.” (Emphasis supplied.)

Although the agreement relieves the seller of any additional liability to purchaser other than the return of the deposit should seller’s title be unmerchantable, the agreement clearly obligates the seller to pay the agent’s commission under those circumstances. We find no language that allows seller to escape this liability because of good faith efforts to cure title defects.

Campo further argues that the broker waived its claim for commission when it returned the deposit to purchasers even though Campo consented to same. Under the provisions of the agreement earlier cited, the purchaser is entitled to demand the return of the deposit from the broker should seller be unable to deliver a merchantable title and the agent is not entitled to deduct his commission from the deposit in such a case. It is only in the event that purchaser breaches his contractual obligations that purchaser’s deposit may be forfeited and the agent’s commission deducted therefrom. The specific language of the purchase agreement dealing with the purchaser’s default reads as follows:

“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto, forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.
“In the event the deposit is forfeited, the commission shall be paid out of this deposit, reserving to the seller the right to proceed against the purchaser for the recovery of the amount of the commission.”

Campo has never contended that the purchaser was in default nor did Campo declare the deposit forfeited nor did he tender title to purchaser or demand specific performance. In the absence of seller taking the required action to declare the deposit forfeited, the agent had no right to claim its commission out of the deposit.

Campo may not use the waiver of his procedural rights provided by the terms of the purchase agreement to create a waiver of plaintiff’s right to its real estate commission.

Our review of the entire record convinces us that no genuine issues of material facts exist. We find that plaintiff was entitled to judgment as a matter of law.

The decision of the trial court granting summary judgment in favor of the plaintiff is affirmed. All costs of this proceeding are to be paid by the defendant.

AFFIRMED.

      . The documents consist of the letter to the Homestead from its attorney, setting forth ten areas of corrective title work; a copy of the listing agreement; copies of the time extensions for the act of sale; a copy of a letter from the Homestead attorney to the defendant’s title attorney setting forth suggested areas of correction; and a copy of a letter from the defendant to the plaintiff regarding the purchaser’s refund.


author: LOBRANO, Judge.

text:
    Miller JACKSON v. Gilbert M. JACKSON.
    No. 12662.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      John E. Jackson, John E. Jackson, Jr., New Orleans, for appellee.
    John M. Coman, Jr., New Orleans, for appellant.
    Before LOBRANO, SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

Miller Jackson brought these proceedings against Gilbert Jackson, his son, seeking the dissolution of an act of sale passed on July 31, 1975. He seeks rescission on the following various grounds: (1) lesion beyond moiety; (2) failure to pay the consideration; (3) mistake as to the nature of the document executed. Prior to trial plaintiff died, and Robert Jackson, the provisional administrator of his succession was substituted as plaintiff. The trial judge rendered judgment rescinding the purported act of sale, and decreed the subject property to be an asset of the Succession of Miller Jackson. Gilbert Jackson, appellant, perfects this appeal.

Appellant raises various issues as to the findings of the trial judge. He complains first, that there were no allegations of fraud in appellee’s pleadings, and therefore the finding of fraud by the trial judge was error; second, that the recitations of an authentic act should not be penetrated by parol evidence; third, if parol evidence is allowed to prove lack of considerations paid; and, fourth, that the sale was in truth and fact a donation, and that the provisions of Articles 1559 and 1560 must be complied with in order to revoke same.

A summary of the pertinent facts is necessary in order to present a logical solution to these various issues. While confined in DePaul Hospital in the summer of 1975, Miller Jackson executed an authentic act of “cash sale” wherein he transfers the property located at 919 Cumberland Street to his son, Gilbert Jackson. The sale is dated July 31, 1975 and provides for a consideration of $4,200.00 cash, which the father acknowledged receiving, and the son acknowledged paying. Miller Jackson executes the document with an “X” mark in the presence of a Notary and three witnesses, and declares in said act that he has a physical infirmity which prevents him from signing in the usual way.

Shortly thereafter, Miller Jackson was released from DePaul and placed in a nursing home where he stayed until moving in with his brother, Robert Jackson. The evidence indicates that Gilbert Jackson placed his father in the nursing home without advising any other family members, and it was only through the efforts of his brother that Miller Jackson was removed from the nursing home. He lived with his brother until he died on January 5, 1979.

The evidence presented at the trial is abundantly clear that no cash was paid by appellant at the time of the sale, nor at any other time. He admits this fact throughout the trial, and under cross-examination, specifically stated:

Q. “Have you ever paid a single dollar towards the purchase of this property?”
A. “No”

However, appellant says that he should be allowed to present parol testimony and other evidence to prove that consideration, other than cash, had been paid. Specifically he claims that the trial judge refused to consider any testimony by the Notary, and the witnesses as to what his father said at the Act of Sale; and that evidence that appellant paid past debts of his father was improperly excluded. All of that evidence is before us in the form of a proffer, and we have considered parts of same as seen hereafter.

The proper starting point in the discussion of the validity of any authentic act is Civil Code Article 2236, which provides:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.” La.C.C. Art. 22S6

It is generally recognized that parol evidence will not be allowed against or beyond what is contained in acts, nor what may have been said before, or at the time of making them. La.C.C. Art. 2276. Appellant cites these codal articles and the case of Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976) as authority for not allowing appellee to refute the terms of the authentic act. We disagree with appellant in this regard. The sale of immovable property in authentic form cannot be attacked by a party thereto on the grounds that the consideration was not actually paid, unless the attacking party alleges fraud, mutual error or force; or unless he produces written evidence in the nature of a counter-letter; or unless the lack of consideration is indicated by answers to interrogatories or requests for admissions of fact. Cordova v. Cordova, 382 So.2d 1050 (La.App. 2nd Cir. 1980) Durham v. Evans, 377 So.2d 423 (La. 2nd Cir. 1979); Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976).

The first witness called by appellee was appellant, Gilbert Jackson, who testified that he did not pay any money in consideration for the sale. There was no objection to that testimony, and we consider same to be an admission by appellant sufficient to allow further proof of no consideration. See Durham v. Evans, 377 So.2d 423 (La.App. 2nd Cir. 1979). Since that parol testimony was admissible to prove lack of consideration, we feel that appellant should have been allowed to present evidence as to other considerations that may have been paid by him to support the sale. However, to his consternation, the trial judge refused to allow the testimony of appellant, the notary and the witnesses to prove other considerations. We have that testimony before us as proffers, and have reviewed same in detail. The appellant, on the proffer, testified as follows:

Q. “And what was, there was no $4,200.00 given on July 31, 1975?”
A. “No”
Q. “And what did your father say, how you were getting the property?”
A. “That he was going to give me the property.”
Q. “Okay. Was there any consideration of money being transferred?”
A. “No”
Q. “Any money transferred previously?” A. “No”

Appellant argues that he paid “some bills” for his father, but was not specific as to amounts or dates of payment. As his testimony states:

“He wanted me to have the property for what I had done, for the bills that I paid for him out of love for my father, that is what he wanted.”

This evidence, as it pertains to past considerations, should have been admitted into evidence by the trial judge. A review of same, however, convinces us that no consideration of any kind was paid. The trial judge’s exclusion of this evidence was harmless error in this particular case.

The appellant makes an alternative plea that should this Court find no consideration to have been paid, then we should consider the “sale” a donation by the father to his son. In doing so, he argues, Miller Jackson then could only attack same in accordance with provisions of Civil Code Articles 1559 and 1560. The argument of appellant is ingenious, however we cannot accept same. The Louisiana Supreme Court in Lewis v. Clay, 221 La. 663, 60 So.2d 78, quoted, with approval, from Whittington v. Heirs of Pegues, 165 La. 151, 115 So. 441, the following:

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“. .. To prove by parol evidence a true and sufficient consideration, in order to sustain the contract made between the parties, is always permissible, where the rights of third parties are not affected thereby. . . . But to resort to such evidence for the purpose of contradicting or varying the contract entered into, in order to substitute in its place a contract of dissimilar nature, is plainly reprobated by the textual provisions of our Code — citing R.C.C. Arts. 1900, 2276.” id at 81

Our jurisprudence is replete with cases which hold that parol evidence is inadmissible to prove that a conveyance was actually a donation, rather than a sale. Perry v. Perry, 282 So.2d 752 (La.App. 2nd Cir. 1973); Succession of Teagle, 206 So.2d 753 (La.App. 2nd Cir. 1968); Girard v. Donlon, 127 So.2d 761 (La.App.1961); The only exception to this rule is Civil Code Article 2239 which gives the right to forced heirs to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit. However, this exception does not apply in those instances where the forced heir is a party to the sales instrument he is attacking. Succession of Teagle, 206 So.2d 753 (La.App. 2nd Cir. 1968); Glover v. Abney, 160 La. 175, 106 So. 735. We see no reason why appellant, being unable to prove that any consideration was paid, should now be able to say that the act was really a donation. This suit is one by a vendor seeking to dissolve a sale on various grounds, including failure of consideration. He does not allege that the act was a donation, or that there was any donative intent. Any parol evidence which seeks to destroy the sales contract, and substitute a donation in its place is inadmissible. The parties in this case consulted an attorney in drawing up and executing the sale. Had they intended that the recited price include considerations in the form of past bills paid, or anything else, they should have so expressed. Further, had they intended that the transaction was, in fact, a donation they should have executed a valid act of donation. They did not. See Webb v. Scott, 346 So.2d 765 (La.App. 1st Cir. 1977). We hold that the sale should be rescinded for failure of consideration, and therefore find no reason to consider the other issues raised by appellant. For the reasons assigned herein, we affirm the judgment below.

AFFIRMED.


text:
    Albert BELL v. MARRIOTT HOTELS, INC.
    No. 12751.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Denied April 30, 1982.

      Joseph W. Thomas, New Orleans, for appellant.
    James L. Selman, II, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for appellee.
    Before LOBRANO, SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

Appellant, Albert Bell, instituted these proceedings seeking recovery for personal injuries he sustained in an accident which occurred on September 26,1979 while working for the Fitzmorris for Governor Campaign Committee. On that date, appellant fell from a ladder he was using while decorating the Grand Ball Room of the Marriott Hotel. Marriott Hotels, Inc., appellee, was named defendant on the basis that the subject ladder was defective, and as the owner/custodian of same they were responsible to its user for any damages resulting from said defect.

The record reveals that on the morning of September 26, 1979 appellant went to the Marriott to decorate and hang banners in the banquet room where a ladies group was to have a luncheon at noon. Appellant, working under the direction of Ronald Lu-man, was directed by him to place several large banners in the room. Both appellant and Luman approached one Lawrence Trou-phy, a Marriott employee who was setting up the tables for the luncheon, and inquired about the use of a ladder. Trouphy directed them to a ladder located in an adjacent hallway that they might use, and resumed his work in preparing for the luncheon. Appellant and his co-worker, Joseph Lawrence got the ladder and proceeded to hang the banners. There were four banners to hang. Bell hung the first, Lawrence the second, Bell the third and fourth. Bell testified that while working on the fourth banner, he was reaching or leaning in order to work with both hands, and in so doing he fell. The testimony is clear that neither Bell nor Lawrence would hold the ladder while the other worked. In fact, while Bell worked on the fourth banner, Lawrence was on the other side of the room making sure the banner was hung level.

The trial court rendered judgment in favor of the Marriott and concluded “. . . that the plaintiff just leaned too far or pushed too hard, and the ladder toppled.”

Appellant perfected this appeal relying on the landmark case of Loescher v. Parr, 324 So.2d 441 (La.1975) as the authority by which this Court should grant him recovery. He argues that the absence of a label warning against “leaning too far” was a defect as contemplated by the Loescher case, and thus Marriott, as custodian is responsible. We disagree. In Loescher supra our Supreme Court set forth the requirements for liability under Article 2317 of the Civil Code. Liability under Article 2317 will exist even in the absence of negligence when the following can be proved by the plaintiff: (1) that the thing which caused the damage was in the care (custody) of the defendant, (2) that a defect existed in the thing, and (3) that the damage occurred through this defect or vice. The custodian can escape liability by proving that any one of the following three contributed to the damage suffered by the victim (1) the fault of the victim himself, (2) the fault of a third person, (3) a force majeure.

In Narcisse v. Fontcuberta, 359 So.2d 1342 (4th Cir. 1978) we held that where the “defective thing” was not in the exclusive custody of the defendant at the time of the accident, strict liability under Article 2317 would not apply.

Pretermitting the question of whether the ladder in the instant case was defective either in its construction or in the failure to warn, we find that defendant Marriott was a gratuitous lender of the ladder and that its liability, if any, would be based upon the obligations imposed by Civil Code Articles 2893 thru 2909, inclusive, rather than 2317.

Article 2893 defines a loan for use as follows:

“The loan for use is an agreement, by which a person delivers a thing to another, to use it according to its natural destination, or according to the agreement, under the obligation on the part of the borrower, to return it after he shall have done using it.” La.C.C. Art. 2893.

Our review of the record convinces us that the loan of the ladder by Marriott to Albert Bell was of a gratuitous nature. As outlined above there was no contractual relationship between Bell, or his employer, and the Marriott. The luncheon arrangement was between Mary Pumilia, a Fitzmorris supporter, and the hotel. No charge was made for the use of the ladder to either Bell or the Fitzmorris for Governor Campaign Committee. The Marriott had ladders and a hydraulic scaffold available for rent, and both could have been used in hanging the banners. However, the rental of this equipment was not included in the contractual arrangements between Pumilia and the hotel. Instead the ladder in question was made available by way of a gratuitous loan.

Having found this to be the relationship between the parties, it is clear from our understanding of the jurisprudence and the civil code that Marriott did not have exclusive custody of the ladder at the time of the accident, but rather that this custody rested with Bell himself.

“A gratuitous loan for use makes the borrower, after delivery, the master of the thing borrowed for the purpose of its use and while using it under the loan. This mastership seems to further result from the provision in Article 2906, according to which the lender cannot claim back the thing loaned from the party to whom it has been loaned, during the period of time for which the loan was made.” Lyle v. Guillot, 143 So. 511 (La.App. 1st Cir. 1932) at p. 513

The Supreme Court in Loescher took this very situation into account by quoting with approval the following passage from 2 Tulane Civil Law Forum No. 2, page 64 (1974)

“The things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairman, among others. It will not belong to the agent or the mandatory, the employee of the servant, or to anyone else for whom there is a responsible principal. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing.” Loescher v. Parr, 324 So.2d 441, 449 fn. 7.

Here the defendant, Marriott, transferred the custody or guardianship of the ladder by gratuitous loan to the plaintiff, Bell, who then became the borrower for use. Louisiana Civil Code Article 2909 sets forth the lender’s liability for damages caused by defects in the thing lent. It provides:

“When the thing lent has defects of such a nature that it may occasion injury to the person who uses it, the lender is answerable for the consequences, if he knew the defects and did not advise the borrower of them.” La.C.C. Art. 2909

See also Mudd v. Travelers Indemnity Co., 309 So.2d 297 (La.1975).

We find nothing in the record to suggest that anyone at the Marriott actually knew of anything being wrong with the ladder prior to the accident. Lawrence Trouphy testified that he (as well as other hotel employees) had used the ladder prior to the time of the accident and had seen nothing broken on it, nor experienced any problems with it. Nor were they actually aware that the ladder may have possibly had a warning label on it at one time. Even if they (Marriott) were aware of the previous existence of a label warning against “leaning too far” we hold that the absence of such a label is not a defect within the meaning of Article 2909. There is no obligation to warn against the consequences of improper usage, where such consequences are readily cognizable. See, American Ins. Co. v. Duo Fast Dixie, Inc., 367 So.2d 415 (La.App. 4th Cir. 1979).

Viewing the evidence by this standard of culpability, we are unable to find that Marriott breached its duty of care as a gratuitous lender to Bell.

Additionally we are unable to find a breach of the ordinary duty of care owed by every person to repair damage caused by his fault. La.C.C. Arts. 2S15, 2S16. The evidence establishes no negligence by Marriott. Thus even under the general rule of delict, liability cannot be imposed.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Art. 2317 provides, “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”


author: LOBRANO, Judge. SCHOTT, Judge,

text:
    JACKSON TITLE CORPORATION v. Allen SWAYNE.
    No. 12757.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Charles E. McHale, Jr., New Orleans, for Jackson Title Corp.
    Ferdinand M. Lob, Metairie, for Allen Swayne.
    Martin E. Kranz, New Orleans, for James W. Smith.
    George O’Dowd, O’Dowd & O’Dowd, New Orleans, for Paula Feeney and Myrtice Broussard.
    Charles A. Kronlage, Jr., Kronlage, Ditt-mann & Maselli, New Orleans, pro se.
    Before LOBRANO, SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

On April 16, 1970, Allen Swayne purchased two lots of ground from the heirs of Buford Stokes, namely Richard Stokes, Buford Stokes, Doris Stokes Brown, Melvin Stokes and Lillie Mae Stokes McGee, by act before Myrtis C. Broussard, Notary Public. The notary did not obtain the required tax research certificates and there was no waiver of same by Swayne. The City of New Orleans taxes for the year 1970 were not paid, and Jackson Title Corporation purchased the subject property at tax sale on November 19,1971. On May 22,1978 Jackson Title Corporation filed this lawsuit to confirm and quiet its tax title. Swayne filed a third party demand against Brous-sard, the Notary, and Paula Feeney, the Surety on the notarial bond. Broussard and Feeney then third partied the assessor, James W. Smith alleging failure to properly assess the property, and Charles A. Kron-lago, Jr., the city notary for failing to provide the assessor with a copy of the tax deed to Jackson Title Corporation. The trial court entered judgment in favor of Jackson Title confirming their title to the property, and in favor of Allen Swayne on the third party demand against Broussard and Feeney, in the amount of $5,500.00, the original purchase price. The demands against Smith and Kronlage were dismissed.

The notary and surety filed this appeal alleging that the tax sale to Jackson Title was an absolute nullity, and therefore the Court erred in confirming the title. Alternatively, they claim that should the tax title be valid, then the loss of the property was not caused by the Notary’s negligence but by the negligence of the assessor in failing to properly assess same and the city notary in failing to provide the assessor with a copy of the tax title. Swayne appealed on the basis that he should have been reimbursed for the value of the property as of May 22,1978, the date he learned of the tax sale to Jackson Title, rather than the original purchase price.

It is clear that by virtue of Article X, Section 11 of the Constitution of 1921, and Article VII, Section 25 of the Constitution of 1974, the only defense to a tax sale after the deed has been of record for a period of more than five years is proof of prior payment of the taxes for the year in which the property was adjudicated. La. Const, of 1921, Art. X, Sec. 11; La.Const. of 1974, Art. VII, Sec. 25; Cortinas v. Murray, 224 La. 686, 70 So.2d 589, (1954); Laventhal v. Lake Investment Corp., 252 So.2d 521 (La.App. 4th Cir.) In their brief, appellants (Notary and surety) claim that the property was assessed to Buford Stokes in 1970, but since Buford Stokes had died in 1964, and his heirs placed in possession, the property should have been assessed in the heirs’ names. Since this was not done by the assessor, they argue, the tax sale was void because the assessment was not in the name of the record owner. In support thereof they cite Hubbs v. Canova, 401 So.2d 962 (La.1981). First, we point out that Buford Stokes, Jr. is one of the heirs of Buford Stokes, and as such is a legal owner of the property, therefore the assessment did name a record owner. More important, however, is the constitutional five year preemptive period. The tax sale was recorded on February 18, 1972, and the confirmation suit was filed on May 22,1978. The Hubbs case, supra, does not support appellant’s contention with respect to the five year preemption period. That case dealt with a poor description in the assessment which made the property unidentifiable. The Court concluded that “an assessment which purports to assess unidentified land is not valid”. Hubbs v. Canova, 401 So.2d 962, 964 (La.1981). That situation does not exist in the present case, and therefore we agree with the trial court in confirming the tax title of Jackson Title Corporation.

We are compelled to affirm the trial judge’s decision finding the notary negligent. It is a requirement that a notary, in passing an act of sale, obtain clear tax research certificates and annex same to his act. In Orleans Parish, he is prohibited from passing said acts unless the taxes due thereon are paid. La.R.S. 9:2921, et seq. Appellant Swayne employed the notary, Broussard, to pass the act of sale by which he acquired the subject property. The notary failed to obtain the necessary tax certificate, thus breaching the duty she owed Swayne. As a result, Swayne was not put on notice of the delinquent 1970 taxes and consequently the property was lost at tax sale.

The more important issue is the question of quantum. Appellant Swayne argues that the trial court erred in awarding him only the return of his purchase price, rather than the value of the lost property as of May 22,1978, the date which he learned of the loss. In support of this contention, Swayne relies on Langendorf v. Administrators of Tulane Educational Fund, 361 So.2d 905 (La.App. 4th Cir. 1978). In Langendorf, the succession representative failed to pay the taxes on certain lands owned by the decedent in the State of Florida. As a result, the property was sold for unpaid taxes in 1965, and subsequently purchased by an attorney for the succession representative. The heirs brought suit for breach of fiduciary duty, and this Court held the succession representative responsible. The heirs were awarded the value of the property as of the time of tax sale in 1965. In so doing, we stated:

“Generally, the amount of recovery for property lost or destroyed is the value at the time of the loss, which is the earliest time the damaged party can file suit for recovery of a monetary award.” Langendorf v. Administrators of the Tulane Education Fund, 361 So.2d 905 (La.App. 4th Cir. 1978), at p. 910

We then stated that the plaintiff heirs could not have filed suit for recovery prior to 1965 because they had not yet been aware of their claim to ownership of the Florida property.

We are compelled to hold differently in the case at bar, and will distinguish the reasoning of Langendorf in that regard. This case must be analogized to an action of a buyer against a seller in case of eviction. Civil Code Article 2506 provides:

“When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller:
1. The restitution of the price.
2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.
4. The damages, when he has suffered any, besides the price that he has paid.”

The Second Circuit, in RalsCo. v. Cone, 344 So.2d 95 (La.App. 2nd Cir. 1977), analogized Article 2506 with an action brought against a Clerk of Court for failing to show an encumbrance on his mortgage certificate. In that case, a purchaser of property subject to a mortgage in favor of Ralston Purina, relied on the mortgage certificate which failed to show that encumbrance. As a result, the purchaser subsequently lost the property through foreclosure proceedings brought by the mortgagee. In those proceedings, the purchaser third partied the clerk of court for failing to list the Ralston Purina encumbrance on his certificate. The clerk was held responsible, and in so deciding, the Court stated:

“By analogy, the measure of damages provided by Article 2506 should control the damages recoverable by third party plaintiff from the Clerk in this case. Principally, the measure of damages is return of the purchase price paid by Frazier to Cone for the property from which he is being evicted.” id. at 98.

This reasoning is applicable to the present case. Appellant-third party plaintiff, Swayne, seeks recovery from the negligent notary for his eviction from the subject property. His action is very similar to those of a buyer against a seller in an action of warranty. The remedies provided a buyer in Article 2506 should be applicable in the present case. We are not constrained to give the appellant the benefit of inflationary economic cycles, just as we would not be constrained to penalize him for deflationary cycles should the Code have provided a remedy different than return of the purchase price. In this regard, it is noteworthy to point out that the redactors of our Civil Code failed to include Article 1633 of the French Code, which provides:

“If the thing sold has increased in price at the time of eviction, even independently of any act of the acquirer, the vendor is bound to pay him what it is worth above the price of the sale.”

As explained by the writer in 17 La.L.R. 253 at p. 260:

“In omitting this Article (French Code Art. 1633) from our Code, the redactors said in explanation that it was ‘evidently dangerous and might cause ruin of a vendor selling in good faith, in a country where fluctuations in value are so great.’ ” Parenthesis added.

We agree that this is the better view, and affirm the trial court’s award of the return of the purchase price. We distinguish the reasoning of Langendorf because in that case the plaintiff heirs did not purchase the subject property, and then subsequently lose same by the negligence of the tort-feasor. They had a claim to the property by virtue of the inheritance laws of Florida and lost that claim by virtue of the deliberate actions of the succession representative in attempting to secure the property for himself. These facts can not be analogized to the buyer-seller case of eviction. The tortfeasor in Langendorf was in bad faith and the plaintiff heirs did not purchase the property in reliance on his (the succession representative) actions.

Appellants, Broussard and Feeney, argue that the assessor should be held responsible for failing to properly assess the subject property, and that the City Notary should also share the responsibility for failing to provide the assessor with a copy of the tax sale to Jackson Title. The proximate cause of the loss of the property was the failure to pay the 1970 city taxes. This would have been cured had the Notary fulfilled her obligation to provide tax certificates, which she did not. The loss was caused by that negligence, and that negligence alone. Hence, it is unnecessary to decide the issues raised against the Assessor and City Notary.

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

AFFIRMED.

SCHOTT, J., dissenting in part with reasons.

SCHOTT, Judge,

dissenting in part:

I concur with the majority in affirming the judgment of the trial court on the main demand of Jackson Title Corporation and the judgment on the incidental demands to the extent of holding the notary and surety liable to appellant Swayne and exonerating from liability the assessor and the city notary. However, I dissent from the limitation of Swayne’s recovery to the amount of his purchase price.

Swayne’s cause of action against the notary is based simply on C.C.Art. 2315 which obliges the notary to repair the damage she caused Swayne by her fault in failing to order the proper research certificates when she passed the act of sale. Her negligence caused Swayne to lose the property. However, his loss occurred not in 1970 when the sale was passed, and not in November, 1971, when the property was sold for taxes to Jackson but three years after the recordation on February 18,1972, of the formal tax sale of the property to Jackson. Until the passage of that three years Swayne had an absolute right to redeem the property under Art. X, § 11, of the Louisiana Constitution of 1921, Art. VII, § 25, of the Louisiana Constitution of 1974; and R.S. 47:2221. Under basic tort recovery theory Swayne should be entitled at least to the value of the property as of the time he lost it on February 18, 1975, with the passage of the three year redemptive period.

However, Swayne’s loss was aggravated by the fact that the property continued to be assessed in his name and he continued to pay the tax bills which contained no reference to the tax sale, with the result that he continued to believe he was owner of the property until the present suit to confirm the tax title was filed in May, 1978. Only by then did Swayne learn that the property, in reality his investment, was lost because of the notary’s negligence.

I do not agree with the majority point of view that Swayne’s recovery should be limited to the purchase price of $5,000 rather than the $16,000 which the property was worth in May, 1978. While Swayne’s situation seems analogous to that of an evicted purchaser under C.C.Art. 2506 as discussed in Ralston Purina Co. v. Cone, 344 So.2d 95 (La.App. 2nd Cir. 1977) there is no basis for limiting the recovery of Swayne, the tort victim, as there may be for limiting the recovery of the evicted purchaser against the good faith seller.

Professor J. Denson Smith’s discussion in 17 La.L.R. 258 et seq. recognizes the difference between the recovery allowed buyer against a good faith seller as compared to a bad faith seller, comparing C.C.Arts. 2452 and 2510; and his concern seems to be for the good faith seller when he states at page 266:

“.Yet it hardly seems reasonable to say that the parties contemplate, at the time of the sale, that the seller will stand good for any subsequent increase in value, no matter how great and no matter what period of time may elapse between the transfer of the property, and the day the seller is called upon to make good his warranty against eviction..."

However, our case is not concerned with a good faith seller’s liability, but that of a tort feasor who is obliged by C.C.Art. 2315 to repair the damage she caused. That damage was not simply Swayne’s loss of his purchase price (the quid pro quo for the property) but the loss of the property itself including its enhanced value at the time Swayne learned of the loss.

I would amend the judgment to award Swayne $16,000 with legal interest from date of judicial demand.


author: WARD, Judge.

text:
    George FRANCE, Robert Brown and Walter B. Sauter v. CITY CIVIL SERVICE COMMISSION OF NEW ORLEANS, et al.
    No. 12517.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Harry E. Forst, Gertler & Gertler, New Orleans for plaintiffs.
    Ralph D. Dwyer, Jr., Many, LoCoco & Dwyer, New Orleans, for defendants.
    Before GARRISON, WARD and AUGUSTINE, JJ.
   WARD, Judge.

Plaintiffs are District Fire Chiefs of the City of New Orleans who are on extended sick leave. They appeal from an adverse judgment upholding the validity of a new City Civil Service Commission pay plan and upholding the validity of a City of New Orleans pay plan for Executive, Administrative and Professional personnel (EAPS). The new City Civil Service plan denies plaintiffs overtime pay, while the EAPS plan by its operation denies them merit pay increases.

Plaintiffs contend that the new City Civil Service pay plan does not give plaintiffs, employees on sick leave, full pay as required by LSA-R.S. 33:1995. They further contend that the ordinance implementing the EAPS plan is unconstitutional because it is not a uniform pay plan as required by the Constitution of the State of Louisiana. Plaintiffs ask that they not be precluded from merit pay increases and that they be given overtime pay.

Defendants deny that plaintiffs are not receiving full pay as District Fire Chiefs, and deny that any conflict exists between the ordinance and the Constitution.

Plaintiffs were employed by the New Orleans Fire Department as District Chiefs, but were on extended sick leave as a result of on-duty injuries when the revised pay plans were adopted. The duration of the extended leave of plaintiffs ranged from seven months to two years at the time of the adoption of the EAPS plan and the simultaneous change in the City Civil Service pay plan.

While plaintiffs were on sick leave, in June, 1976, the City Civil Service promulgated its new plan:

Rule IV, Sec. 10. Employees in classifications of work whose duties are administrative, technical or professional are not eligible for overtime compensation.

This eliminated overtime compensation for plaintiffs and other executive, administrative and professional personnel. Contemporaneously, the Chief Administrative Officer of the City issued an Executive, Administrative and Professional Pay Policy, which provided merit and incremental pay increases for all city employees, including District Fire Chiefs. Under the EAPS plan, active district chiefs were eligible to be considered for immediate salary increases, and for additional increases every nine months thereafter. Because of requirements of the EAPS plan that employees must be “on call” beyond the regular work week and that employees must be recommended by their immediate supervisors for pay raises, only employees in active service would be considered for their merit pay increases, and employees on extended sick leave were effectively excluded.

Plaintiffs contend that the EAPS plan is unconstitutional because it is not a uniform pay plan as required by Article X, Section 10 of the Louisiana Constitution of 1974:

(A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan. . . (Emphasis ours)

On the question of nonuniformity of the plan, we adopt Judge Redmann’s words in Eastwold v. City of New Orleans, 355 So.2d 1012 (La.App. 4th Cir. 1978): “The only inequality is between unequals...” In this case, there is inequality between unequals, District Chiefs on extended sick leave and District Chiefs on active duty. District Chiefs on sick leave were not entitled to be considered for a merit raise under the EAPS plan; active District Chiefs on call were. The EAPS plan is a uniform pay plan providing equal treatment to those similarly situated, and if plaintiffs returned to active duty, they were entitled to be considered for merit pay raises. All employees, including plaintiffs, who were similarly situated and classified have received equal and uniform treatment under the plan. The EAPS plan and the implementing ordinance are not unconstitutional.

Plaintiffs also contend the City Civil Service pay plan and the City ordinance that implements it conflict with LSA-R.S. 33:1995 and must fall because full pay is not given to plaintiffs during their sickness or incapacity. The new pay plan provides:

Employees in classifications of work whose duties are administrative, technical or professional are not eligible for overtime compensation....

while LSA-R.S. 33:1995 states:

Every fireman in the employ of a municipality, parish or fire protection district to which this Sub-part applies, shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks.

Under the new pay plan plaintiffs lost overtime compensation which they had previously received. They maintain that loss of overtime pay means they are not receiving full pay. It is not claimed that plaintiffs’ base pay was reduced. The base pay these plaintiffs and other District Chiefs received at the moment Civil Service Rule IV, Section 10, and the EAPS Policy became effective in June, 1976, remained the same; and neither was entitled to overtime, although active chiefs were given the opportunity to receive an incremental merit pay raise under the EAPS plan. The Civil Service rule merely removed the opportunity for overtime pay; it did not give these plaintiffs a lower base pay than the Civil Service minimum base pay for District Chiefs. Loss of the opportunity to earn overtime pay and the opportunity to earn merit increases does not mean plaintiffs did not receive the full pay of District Chiefs during their sickness or incapacity. We cannot find plaintiffs at any time received less than full base pay.

Another issue raised by consideration of this case is discussed by Judge Garrison in Cannatella v. City Civil Service Commission, 381 So.2d 1278 (La.App. 4th Cir. 1980), writ ref., 384 So.2d 793 (La.1980). The appropriate standard for review of action by the Civil Service Commission “is that it act reasonably, which is to say not arbitrarily nor capriciously.” The Civil Service rule eliminating overtime for administrative, executive and professional employees is not arbitrary. For the City of New Orleans’ Chief Administrative Officer to implement merit pay raises is not arbitrary, although the pay plan may give an opportunity to those professionals on active service to earn more than those out of service, injured on-duty, and on extended sick leave.

Furthermore, we are at a loss to understand how plaintiffs on extended sick leave can claim the right to overtime pay or the right to be considered for merit pay raises while on sick leave.

We affirm.


text:
    Gary M. ZIEMBA v. CITY OF NEW ORLEANS.
    No. 12768.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      J. Terrell Heath, New Orleans, for Ziem-ba.
    Thomas W. Milliner, Asst. City Atty., New Orleans, for City of New Orleans.
    Before BARRY, WARD and BYRNES, JJ.
   WARD, Judge.

The City of New Orleans appeals a judgment in favor of plaintiff, Gary Ziemba, which awarded damages for his false arrest. The determinative issue is whether the trial judge erred when he refused to receive as evidence a City of New Orleans police report relied upon by the City to show probable cause for the arrest of the plaintiff. The City contends the police report was admissable as a business record exception to the hearsay rule.

Gary Ziemba was arrested for the crimes of simple burglary, possession of stolen property, assault of an officer, and resisting arrest. He was taken to the Central Lockup where he was booked, fingerprinted, photographed, and sprayed with disinfectants. He remained in police custody thirty-six hours. After review of the police report, the district attorney declined to prosecute Ziemba for any of these offenses. During trial of Ziemba’s claim of damages for false arrest, Ziemba testified that he was innocent of these crimes, that he was at another place working offshore in the Gulf of Mexico when the burglary occurred, and that he was never in possession of stolen property. Ziemba possessed payroll receipts and crewboat logs corroborating his alibi. The City conceded the arrests for assault of an officer and resisting arrest were without any basis.

In an attempt to prove probable cause for the arrest of Ziemba for burglary and possession of stolen property, the City offered as evidence the police report of the investigating officer. The custodian of the records of the police reports was present and prepared to testify during trial to establish a foundation for the introduction of the report of the burglary and possession of the stolen property. However, the police officer subpoenaed for the purpose of showing that the investigating officer was no longer employed by the police department and could not be located, did not appear to testify.

The trial judge refused to receive the offer of the police report because the investigating officer who prepared the report was not present in court to testify, and the City did not produce witnesses to testify that he could not be found, and that he was not otherwise subject to the processes of court.

Permanent business records, regularly kept during the operation of a business, have been recognized by Louisiana courts as an exception to the hearsay rule; they are offered to prove the truth of the matter asserted therein. It is usually sufficient to show as a basis for their receipt as evidence that certain conditions have been met: (1) they are permanent, regularly kept records; (2) the record was made within a reasonable time after the occurrence of the event; and (3) the information was furnished by one having a business duty to report or record the event in the regular course of business. Although a custodian may testify that these conditions have been met, at least as to police records in Louisiana, more is required. The Louisiana Supreme Court in State v. Martin, 356 So.2d 1370 (La.1978) held:

... before such exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy.

The City has failed to meet at least one condition precedent to the admission of the police report; it has failed to show the officer who prepared the report is genuinely unavailable. Additionally, since the arrest of Ziemba for assault and resisting arrest is conceded to be erroneous, there is no logical basis to believe that in all probability the report was trustworthy, and it was within the trial judge’s discretion to refuse to receive it as evidence for that reason alone. For both of these reasons, a proper foundation for the admission of the police report was not established. The trial judge’s ruling is correct.

We conclude that Ziemba did not have to prove the absence of probable cause for his arrest. This is an affirmative defense that must be proven by the City. LSA-C.C.P. Arts. 1004 and 1005. The City failed to prove that probable cause existed to arrest Ziemba for burglary, possession of stolen property, or any other offense. Ziemba is entitled to recover reasonable damages under LSA-C.C. Art. 2315, which includes the tort of false arrest.

The amount of damages awarded was not questioned and is not an issue in this appeal.

We affirm.