text:
    John S. WHITE, Jr. v. A. BOUTTE.
    No. 13596.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.
    Charles N. Malone, Baton Rouge, for plaintiff-appellee John S. White, Jr.
    Joel B. Dickinson, Baton Rouge, for defendant-appellant A. Boutte.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This action arises out of an oral contract entered into by defendant-appellant and plaintiff-appellee. The trial court found for plaintiff and defendant perfects this appeal. We affirm.

On October 12, 1976, John S. White, Jr. and A. Boutte entered into a valid oral contract to make substantial additions and improvements to the White residence at 5950 Menlo Drive in Baton Route, Louisiana. White resided there with his wife and three children. The original price of the building contract was $39,566.00 and was to be done in accordance with plans and specifications furnished to Boutte, the general contractor. The contract was amended shortly thereafter to include yet another addition and improvement at an additional price of $7,000.00.

Although no completion date was specifically fixed, the testimony suggests that Christmas, 1976, was the projected date. Appellant was unable to complete the work in either December, 1976, or January, 1977.

By January, 1977, White had paid to Boutte more than $36,000.00, yet, substantial work remained to be done. Noticeably, however, no meaningful work was performed after December, 1976. In January and February, the owner communicated his dissatisfaction to the general contractor and urged him to speed up the work and to complete the job. By March, White concluded that no progress had been made and, therefore, he proposed to Boutte that he (Boutte) either get his subcontractors back on the job and complete it or withdraw from the contract and return to White the unexpended and unearned advances made. Boutte declared that he was “broke” and, therefore, not able to continue unless additional advances of money were made by White. White refused to advance any further sums of money and asked Boutte to complete the work or leave the premises. Boutte did not return to the job.

The record establishes that White made regular advances to Boutte totaling $36,-625.31; that after January 1, 1977, Boutte breached the contract and forced White and his wife to take charge as general contractor and to complete the work. This the Whites did at a total cost of $59,493.67, or $12,927.67 in excess of the original contract of $46,566.00.

We start with the proposition that the contractor who fails to do the work as agreed or in the manner or time agreed, is liable for non-compliance.

The court below in its articulation of the reasons for judgment clearly found that Boutte breached the contract herein.

Appellant argues that the trial court committed error in the following particulars: (1) by granting judgment to plaintiff where the defendant-contractor was never placed in default; (2) that more than enough monies remained with which the defendant could complete the job; (3) by denying judgment to the defendant-contractor for breach of contract by plaintiff; and (4) by dismissing defendant’s reconven-tional demand for false arrest.

Appellant cites Delta Paving Company v. Woolridge, 209 So.2d 581, La.App. 4th Cir. (1967), writs denied 252 La. 176, 210 So.2d 56 (1968) in support of his position that a putting in default is required under the facts of this case.

The record reveals that the defendant-contractor refused to perform his contractual obligation and then left the job site. His refusal constitutes an active breach of contract which obviates the necessity of a formal putting in default as a prerequisite to recovery by the obligee, LSA-C.C. art. 1932; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977).

His second contention is that although $36,625.31 has been expended, the remaining $9,941.29 was more than sufficient to complete the contract. This argument is without merit. The testimony of the Whites, which is uncontroverted, proves that the final expenditure was $12,670.60 above the original contract as amended. The plaintiff-appellee is entitled to recover any costs incurred to complete the work.

Appellant’s remaining contentions are equally without merit. The record is clear that the defendant-appellant, not the plaintiff-appellee, committed the breach of contract complained of herein by failing and refusing to complete the job. He is, therefore, entitled to no relief whatsoever. The last contention that the trial court erred in dismissing his reconventional demand for false arrest lacks merit. An examination of the pleadings fails to reveal a properly pled cause of action based on false arrest. The pleadings do not in any way set out the factual circumstances of an arrest nor any specific acts by plaintiff which might render him liable. Further, the evidence does not support any such contention.

The decision of the trial court is correct in all respects.

For the foregoing reasons, the judgment of the trial court is affirmed, and appellant is to pay all costs of this appeal.

AFFIRMED.

      . La. Civil Code art. 2769:
      “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his noncompliance with his contract.”


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    SCULLY BROS. BOAT BUILDING, INC. v. FLOTATION SERVICES, INC.
    No. 13607.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Dale P. Martin, Lippman, Mahfouz & Martin, Morgan City, for plaintiff.
    Leon E. Roy, Jr., Roy & Forrest, New Iberia, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is an appeal from the granting of a summary judgment to annul a default judgment entered against the plaintiff-appellee, Scully Bros. Boat Building, Inc. (Scully Bros.). The defendant-appellant in the present suit, Flotation Services, Inc., had obtained a default judgment against Scully Bros, in Suit # 57,872 in the Sixteenth Judicial District Court for St. Mary Parish.

Our only determination on this appeal will be the correctness of the trial court’s ruling on the motion for summary judgment. Under La.C.C.P. art. 966, a motion for summary judgment is appropriate when there is no genuine issue of material fact. Chaisson v. Domingae, 372 So.2d 1225 (La.1979) and cases cited therein.

The relevant facts in this case deal with who was actually served with the citation in the suit filed by Flotation Services, Inc. and who were the agents for service of process for Scully Bros, at that time.

Suit was filed by the defendant, Flotation Services, Inc., on February 15, 1979, and service of the petition was made on March 8,1979 by St. Martin Parish Deputy Sheriff, Edwin Jones. The sheriff’s return of the citation reveals that Deputy Jones served Robert J. Scully, Jr.

Plaintiff contends that the citation was actually served on Robert J. Scully, Sr. who was not an authorized agent for service of process for Scully Bros. By use of the deposition of Deputy Jones, plaintiff tries to refute what was officially recorded on the citation. In addition, the deposition of Robert J. Scully, Sr. states that he was the person actually served. The use of this evidence is questionable and would require a factual determination under the recent Supreme Court decision in Roper v. Dailey, 393 So.2d 85, decided September 3, 1980.

The fact that someone other than Robert J. Scully, Jr. was served is disputed as well as the identity of the registered agents for service of process for Scully Bros.

Since these facts are material and because they are in dispute, the use of summary judgment is inappropriate. The decision of the trial court in granting the summary judgment is hereby vacated and set aside. The case is remanded for further proceedings consistent with this opinion. Costs of this appeal are to be paid by appel-lee. All other costs are to await the final disposition of the suit.

JUDGMENT VACATED — CASE REMANDED.


author: LEAR, Judge.

text:
    Samuel J. RICCA v. Johnny SAGONA d/b/a S & S Trucking Company et al.
    No. 13632.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Richard E. Burton, Baton Rouge, for plaintiff-appellant, Samuel J. Ricca.
    O’Neal Walsh, Baton Rouge, for defendants-appellees, Johnny Sagona d/b/a S & S Trucking Co., Ed Gwin, Jr., and Houston General Insurance Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Samuel J. Ricca (Ricca), filed a suit for damages arising out of a truck-car accident, naming Johnny Sagona d/b/a S & S Trucking Company (Sagona), owner of the truck, Ed Gwin, Jr. (Gwin), driver of the truck, and Houston General Insurance Company (Houston General), insurer of the truck.

The accident occurred at the intersection of North Sherwood Forest Drive and Green-well Springs Road in East Baton Rouge Parish. At the intersection, North Sherwood Forest Drive, a two lane road, forms a “T” intersection with Greenwell Springs Road, a four lane divided highway. At the time of the accident, Ricca, driving a Ford automobile, entered the intersection from North Sherwood Forest Drive, which road is controlled by a stop sign, and was attempting to make a left turn onto Greenwell Springs Road; Gwin was approaching the intersection from Ricca’s left and struck the automobile on the left side, seriously injuring Ricca. After a trial on the merits, judgment was rendered in favor of all defendants and against plaintiff, dismissing plaintiff’s suit at plaintiff’s costs.

The testimony shows that Ricca stopped for the stop sign before entering Greenwell Springs Road, then pulled out, intending to get into the median, but found himself blocked by two other vehicles in the median. This left the Ricca vehicle blocking the left or inside lane of Greenwell Springs Road directly in the path of the truck operated by Gwin. Gwin could not move into the right or outside lane because of another car traveling alongside his truck in that lane. Having nowhere to turn and being unable to stop the truck, Gwin struck the Ricca vehicle.

The court was impressed by the testimony of two of the eyewitnesses and concluded that Ricca had failed to discharge the responsibility incumbent upon a motorist entering a favored highway. Mrs. Frances Flack, who was operating one of the vehicles stopped in the median waiting for oncoming traffic to clear (which included the truck operated by Gwin), testified that it was obvious to her that there was insufficient time to make a left turn in front of the traffic. Mr. Wilis Tanner III stated that he exited a service station located near the intersection and got into the median in preparation for a left turn. His vehicle was the second vehicle in the median. He stated that he was aware of Gwin’s truck when he pulled into Greenwell Springs Road. Both Mrs. Flack’s and Mr. Tanner’s vehicles apparently arrived in the median before Mr. Ricca pulled into the intersection.

The jurisprudence is clear that a motorist must do more than merely stop at a stop sign. He is further under a duty to ascertain that traffic conditions are safe and that further progress can be made without danger. Aucoin v. Fidelity General Ins. Co., 219 So.2d 532, La.App. 3rd Cir. (1969), writ refused 253 La. 1095, 221 So.2d 521 (1969); Plummer v. Traders and General Ins. Co., 183 So.2d 467, La.App. 3rd Cir. (1966), writ denied 249 La. 377, 186 So.2d 627 (1966).

“The motorist on a right-of-way street with knowledge of the location of a stop sign, has a right to assume that any driver stopped at the intersection on the less favored street will observe the law, and can indulge in this assumption until he sees or should see, that the other car has not observed, or is not going to observe the law.” Aucoin, supra.

As to appellant’s Specification of Error 2, that the doctrine of last clear chance is applicable, the requisites for its application are findings that (1) plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) defendant discovered, or was in a position to discover, plaintiff’s peril; and (3)that, at that time, the defendant could have, with the exercise of reasonable care, avoided the accident. Obviously, in the opinion of the trial judge, based upon the evidence presented, the plaintiff did not prove all of these elements.

After consideration of the record, we cannot say that the trier of fact was clearly wrong. Therefore, we will not disturb his findings. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

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

AFFIRMED.


text:
    James M. McKEAN et ux. v. William T. CAMPBELL et al.
    No. 13829.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Richard A. Thompson, New Orleans, for plaintiffs.
    Gerard H. Schreiber, New Orleans, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

James M. McKean, Jr. and Glenda McKe-an, plaintiffs-appellees, move to dismiss the appeal of William T. Campbell for his alleged failure to timely appeal. We grant the motion and dismiss the appeal.

This matter first arose with plaintiffs filing a petition on April 17, 1973. The petition was amended and supplemented on January 13, 1977 and the defendant was served personally via the Louisiana Long Arm Statute. La.R.S. 13:3201 et seq. Defendant, represented by counsel at this time, raised peremptory exceptions of prescription and res judicata. The trial court sustained the res judicata exception and dismissed plaintiffs’ case. Plaintiffs appealed the decision and this court reversed and remanded to the trial court. McKean v. Campbell, 372 So.2d 652 (La.App. 1st Cir. 1979). Since that appeal, defendant was without assistance of counsel until this appeal.

Plaintiffs proceeded with their case and obtained a default judgment which was rendered and signed by the trial judge on November 30,1979. Campbell did not file a written request for notice of rendition or signing of judgment, nor did he file an application for a new trial.

The time for taking an appeal devolutively is governed by La.C.C.P. art. 2087. Said article states that a devolutive appeal must be taken with sixty (60) days of: (1) the expiration of the delay for applying for a new trial, if an application is not timely filed; (2) the court’s denial of a timely filed application for new trial; and (3) the date of mailing notice of refusal to grant a timely filed application for new trial when applicant is entitled to such notice.

In this case no notice of the signing of the judgment had been requested by the defendant. Therefore, the delay for a new trial began to run the day after the signing of the judgment. La.C.C.P. art. 1974. The delay for new trial commenced on December 1,1979, and ran seven (7) days exclusive of holidays until December 11, 1979.

The time for taking the devolutive appeal under Article 2087(1) began to run on December 12, 1979. It expired sixty (60) days later on February 11, 1980, at which time the judgment of the trial court became final.

Defendant’s appeal in this case was not filed until April 1, 1980, well beyond the time limit established in the Code of Civil Procedure. Since the appellant failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal under La.C.C.P. art. 2088. Dean v. General Finance Corporation, 348 So.2d 756 (La.App. 1st Cir. 1977).

Since this court is without jurisdiction to hear this appeal, the court is also without jurisdiction to hear the exception of prescription filed by the appellant in this court on July 25, 1980.

For these reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: COLE, Judge.

text:
    Clifton E. HAGOOD, Jr. et al. v. Kenneth E. PICKERING et al.
    No. 13210.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Ross A. Brupbacher, Jefferson J. Moss, Jr., Lafayette, for plaintiff-appellant Clifton E. Hagood, Jr.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., Baton Rouge, for defendants-appellees Kennéth E. Pickering et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal is before us on remand from the Supreme Court, 386 So.2d 359, which ordered us to review the district court decision, 385 So.2d 405, to determine if it was correct.

This is a suit against the Commissioner of Financial Institutions by the organizers of a proposed bank whose application was denied by that state official. As this court noted in its opinion of May 5, 1980, two issues were presented on appeal at that time: (1) whether under the Administrative Procedure Act (La.R.S. 49:951 et seq.) an applicant for a certificate of authority to organize a bank is entitled to a hearing before the Commissioner of Financial Institutions; and (2) whether the trial court was correct in its review on the merits of the decision of the Commissioner.

We found the provisions of the Administrative Procedures Act for hearings and judicial review do not apply to actions by the Commissioner of Financial Institutions relative to applications for the organization of banks. We also held the Commissioner’s decision is subject to judicial review and the scope of that review is limited to a determination of whether the ruling was unreasonable, arbitrary, or capricious or amounted to an abuse of discretion. It was concluded, however, that the petition in this case failed to state a cause of action for judicial review.

Writs were granted by the Supreme Court with orders that, on remand, we determine whether the ruling of the district judge (that the commissioner was not arbitrary in his denial) was correct.

Pursuant to those directions, we have thoroughly reviewed, in camera, the confidential information developed by the commissioner in this matter. We conclude, as did the trial judge, that the denial of the application was not arbitrary.

Therefore, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Rose ERDEY v. Godfrey C. STEIB and Allstate Insurance Company.
    No. 13542.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      Hobart Pardue, Jr., Springfield, and Phillip T. Hager, New Orleans, for plaintiff.
    Christopher E. Lawler, Gail Nelson, & Suzanne Dittmer, Metairie, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Defendant, Godfrey Steib, appeals from a judgment awarding plaintiff damages for personal injuries she sustained in an inter-sectional collision. The issue is whether or not the jury was manifestly erroneous in finding the defendant negligent and in assessing the amount of damages.

At trial, the testimony of plaintiff and defendant was in direct conflict as to how the accident occurred. The jury apparently accepted plaintiff’s version of the incident. Plaintiff testified she was proceeding west on West Thomas Street in Hammond, and stopped at a stop light at the intersection of West Thomas and Southwest Railroad Avenue. When the light turned green she hesitated and proceeded to cross the intersection. As she entered the intersection, her automobile collided with defendant’s automobile which was heading north on Southwest Railroad Avenue. The front left end of her car made contact with the middle right side of defendant’s car.

Defendant testified he entered the intersection when the light was green. The light turned amber as his car was proceeding underneath the light. His version of the accident would indicate that plaintiff had entered the intersection while her light was still red.

An examination of the trial record shows the jury did not abuse its discretion in finding the defendant liable. Great weight must be given the jury’s resolution of conflicting testimony on an issue of fact, especially where the credibility of witnesses is involved. Aleman v. Lionel F. Favret Co., Inc., La.App., 349 So.2d 262 (1977); Billiot v. Bourg, La.App., 338 So.2d 1148 (1976). Reasonable factual conclusions of the trier of fact should not be disturbed in the absence of manifest error. Canter v. Koehring Company, La.App., 283 So.2d 716 (1973).

DAMAGES

Defendant argues the damages awarded for lost wages, disability, and pain and suffering are excessive. Generally, an appellate court can disturb an award made by a trial court only if the record clearly reveals that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., La.App., 341 So.2d 332 (1976).

The jury awarded plaintiff $28,000 for lost wages. The trial judge reduced the award to $5,000. The record shows Mrs. Erdey’s net pay was $260 a month. She has been unable to work at her job as a grocery store clerk since the accident of May 5, 1976. She was approximately 59 years old at the time of the accident and might have worked at least six more years. She elected to draw early social security retirement several months after the accident, although the exact amount of her retirement benefits is not evident from the record. When a claim for lost wages cannot be proved with mathematical certainty, it can be established by any proof that reasonably establishes the claim, such as plaintiff’s own testimony. The courts have reasonable discretion to assess damages based upon all the facts and circumstances of the case. Jordan v. Traveler’s Insurance Co., 257 La. 995, 245 So.2d 151 (1971). The award of $5,000 cannot be said to be unreasonable under the particular facts of this case.

Defendant contends the $10,000 award for disability is also excessive because there was no medical evidence of disability offered at trial. The record shows that Dr. Edmond Daly, the physician who treated plaintiff for her accident related injuries, testified he released plaintiff in August of 1976. At that time, he felt she had greatly improved although she still complained of pains in her neck and back. He stated that an x-ray revealed that plaintiff had osteoporotic condition of the spine which is caused by aging but could have been aggravated by the trauma of the collision.

Mrs. Erdey testified she is now unable to garden, bake, dance, take care of her grandchildren or work. She said she attempted to return to work on three occasions but each time was forced to stop working and return home due to the extreme pain and discomfort. Her testimony concerning her efforts to resume work was corroborated by her former employer, Charles Dixon. Her testimony concerning her curtailment of certain activities such as dancing and gardening was corroborated by testimony of a neighbor, Anna Sziber, and by her son, Joseph Erdey. We find the medical and lay testimony are sufficient to allow the fact finder to conclude that plaintiff is, in fact, disabled and has suffered a permanent limitation on her daily activities. As such, the award of $10,000 is not an abuse of the fact finder’s discretion and should not be disturbed. Coco v. Winston Industries, Inc., supra.

Defendant contends the $25,000 granted for pain and suffering is unreasonable and an abuse of the discretion of the jury. The jury apparently accepted plaintiff’s testimony that she suffered severe pain at the time of the accident and continues to be plagued periodically by extremely uncomfortable spasms in her back and neck. She testified she still requires a sleeping pad to alleviate the pain. Her son and her neighbor verified plaintiff’s testimony by stating that she often complained about her back pains.

Counsel for both parties has cited numerous cases in which the fact finder granted awards of lesser or similar amounts for injuries to the neck and back. The Supreme Court has said:

“Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal.” Coco v. Winston Industries, Inc., supra, at 335.

We feel the facts and circumstances revealed in the record show the jury did not abuse its discretion in granting the plaintiff $25,000 for her pain and suffering.

Upon review, the question is not whether a different award might have been more appropriate, but whether the jury’s award can be reasonably supported by the evidence. The fact that the evidence might also support a greater or lesser amount will not justify a change in the amount. Bitoun v. Landry, La.App., 302 So.2d 278 (1974).

For the foregoing reasons, the judgment of the trial court is affirmed. Defendant-appellant is to pay all costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Paul COBB, Sr. v. Willie GALLET.
    No. 13543.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Frank L. Koles, Greensburg, and L. B. Ponder, Jr., Amite, for plaintiff.
    Charles M. Reid, Amite, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for damages brought by a lessee for alleged breach of a contract of lease by the lessor by ordering lessee to leave a leased tract of land. The trial court awarded damages and attorney’s fees. We affirm with respect to damages but deny attorney’s fees.

By authentic act dated October 26, 1976, Willie S. Gallet leased to P. L. Cobb, 60 acres of land in Tangipahoa Parish “for purposes of pasture, grazing, and raising hay.” The term of the lease was two years. The lease price was $14.00 per acre per year, payable in advance.

That lease was amended and corrected, to paraphrase the language of the amended instrument, to include an additional 45 acres, to state that the lease purpose was general farming and cultivation, to make the term of the lease 5 years from the date of the original lease, and to require the lessee to maintain fences. The corrected instrument was duly executed by the parties by authentic act dated November 8, 1976. The lease price was again $14.00 per acre payable in advance yearly.

It appears there was some dispute about maintaining fences, and Gallet contends Cobb cursed him in a bitter argument over keeping the fences. Before the first year of the lease had elapsed, Cobb made three tenders of the lease rental for the next year. Gallet responded by refusing the tenders of payment and saying he wanted Cobb off the leased tract. Neither written instrument provided for termination.

Cobb sued for loss of profits resulting from his inability to raise livestock on the leased track, which he vacated after being ordered to leave. It appears that he made an effort in good faith to lease another tract to mitigate damages, but was unable to find another tract available. He was forced to sell his livestock. Cobb also sought attorney’s fees. Gallet reconvened seeking termination of the lease as of October 25, 1977, and attorney’s fees.

The trial court awarded plaintiff Cobb $26,000.00 damages and $2,500 attorney’s fees, and took no action in its judgment on defendant’s reconventional demand, thus impliedly rejecting it.

Defendant contends that a forcible eviction is necessary in order for an action for damages to be brought successfully, and, further, that plaintiff breached the lease by ^failure to repair the fences. On the question of the fences, we find the testimony to be in conflict as to whether or not plaintiff failed to keep the fences in good repair. The trial court did not give written reasons for judgment. Therefore, we will assume, for purposes of discussion, that plaintiff did not keep the fences in good repair.

On both issues, the case of Waller & Edmonds v. Cockfield, 111 La. 595, 35 So. 778 (1904) is directly in point. In that case, defendant leased a cotton gin to plaintiffs until January 1,1903. In November, plaintiffs were informed “in terms very positive” by defendant’s agent that they could not continue to operate the gin without an order from defendant, which was not forthcoming. Plaintiffs, therefore, stopped their work at the gin, and sued for lost profits. Defendant contended that plaintiffs had failed to maintain the gin properly. The Louisiana Supreme Court affirmed the trial court’s award of damages for loss of profits, stating that defendant had breached the lease by seeking to obtain possession of the leased premises by extra-legal means, and that if plaintiffs had indeed failed to keep the gin in good repair, still defendant was restricted to obtaining possession by means that were legal. Similarly, in the present case, Gallet sought to obtain possession by extra-legal means (ordering Cobb to vacate the leased tract), and, even if, as we have assumed for purposes of discussion, Gallet had a legitimate complaint concerning Cobb’s failure to maintain the fences, Gallet was restricted to enforcing his rights by legal means, which did not include ordering lessee-Cobb off the premises. The lease was not terminable and had at least four years yet to run.

Defendant-Gallet contends the quantum of the damage award was .excessive. Defendant has failed to refute successfully Cobb’s testimony that he generally made around $6,500.00 to $7,000.00 yearly from the cattle business, from the increase of calves and from other livestock, and the testimony is that if anything cattle prices have increased. This testimony is not contradicted. Nor can we agree with Cobb’s contention that the award should be augmented to reflect the increase in cattle prices, as we do not find sufficient data available from testimony to justify such an' augmentation of award.

We find that defendant is correct in his contention that Cobb should not have been awarded $2,500.00 in attorney’s fees. A breach of contract does not generally give rise to an award of attorney’s fees unless attorney’s fees are authorized by the contract or by statute. Rutherford v. Impson, 366 So.2d 944 (La.App. 1st Cir. 1979), writ refused La., 369 So.2d 140 (1979). Neither lease provided for attorney’s fees. An exception is found if there is fraud or bad faith on the part of the contracting party against whom relief is sought, as was present in the case cited by plaintiff in his brief on appeal,. Smallpage v. Wagner & Wagner, 84 So.2d 863 (La.App.Orl.1956). We find nothing to even suggest fraud or bad faith in the present case. Hence, we deny attorney’s fees.

Accordingly, the judgment of the trial court is affirmed in awarding plaintiff damages in the sum of $26,000.00, and reversed in the award of attorney’s fees, all costs of the trial court and this court to be paid by defendant-Gallet.

AFFIRMED IN PART, REVERSED IN PART.


text:
    Charles YOUNG v. E & L LUMBER COMPANY, INC., et al.
    No. 13547.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Nolan J. Edwards, Crowley, for plaintiff-appellee, Charles Young.
    John G. Fontenot, Eunice, for plaintiff-appellee, Ashy-Hutchinson Enterprises, Inc.
    Joel E. Gooch, Lafayette, for intervenors-appellees, Equitable Gen. Ins. Co. and Houston Gen. Ins. Co.
    Emile C. Rolfs, III, Baton Rouge, for defendants-appellants, E. & L. Lumber Co., Inc. and Southern Country Mut. Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is an appeal from a summary judgment. Plaintiff Charles Young filed suit against E & L Lumber Company, its automobile fleet insurer, Southern County Mutual Insurance Company, and its general liability insurer, Houston General Insurance Company. Plaintiff sought damages for personal injuries received while supervising the unloading of a lumber truck owned by E & L. E & L and Southern County filed a third party demand against Houston General. Houston General moved for a summary judgment based on exclusionary language in its policy which denied coverage for injuries arising out of the loading or unloading of the insured vehicle. The' trial court granted the motion, finding the affidavit, pleadings and deposition showed there was no genuine issue of material fact as to plaintiff’s involvement in the unloading of the vehicle. Defendants E & L and Southern County have appealed. We reverse.

Plaintiff Charles Young was employed as a laborer by Ashy-Hutchinson Enterprise. Ashy had been hired to construct a board road servicing an oil well site. The particular circumstances surrounding the accident are pertinent in determining if there is any issue of fact.

On October 4, 1977 two trucks owned by E & L were driven to the drilling site to be unloaded by employees of Ashy-Hutchinson. The trucks each contained ten bundles of eighty, 18 feet long, 3" X 8" planks. The bundles were bound by a single metal band. The unloading was accomplished by using a mechanical winch mounted on a truck owned by Ashy. Plaintiff was supervising the unloading process. The Ashy truck backed up to the E & L truck, a cable was looped around a bundle of lumber, and the Ashy truck was maneuvered so that the bundle was removed from the truck and laid to rest on the ground. The next three bundles were stacked “piggy back” style so that half of the bundle rested on the ground and half rested on the bundle previously removed. The fifth bundle was not stacked in this manner but was placed so it leaned against the first bundle. As the fifth bundle made contact with the first bundle, the band of the first bundle came apart. The loose lumber in the first bundle, and the entire fifth bundle, struck plaintiff’s legs and caused injury.

Appellants urge three grounds for reversing the summary judgment. The first is that there is an issue of fact as to whether or not the sole basis for liability is an occurrence that arose out of the loading or unloading of the insured vehicle. The language of the Houston General policy is as follows:

“(b) The general liability coverage does not apply:
To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured.... ”

The definition of automobile includes a land motor vehicle, trailer or semitrailer designed for travel on public roads, so that the truck being unloaded did qualify as an insured automobile.

Appellants urge that it is possible the injury was caused by the negligence of the E & L employees in binding the lumber into bundles. They argue this activity has nothing to do with the unloading of the truck so the exclusionary clause does not apply. We agree with this contention. Granted, the injury that occurred could have been caused by several factors. Among them are the negligence of the employee operating the winch, the negligence of the plaintiff in giving instruction, the negligence of the employees who initially loaded the lumber into the truck, or the negligence of the workers who bound the lumber into bundles. Negligence as regards the binding of the lumber into bundles does not in any way relate to injury arising out of the operation, use, loading or unloading of the vehicle. The language of the exclusion only negates coverage for injury arising out of the loading or unloading of an automobile. However, if the cause of the injury in this case is a faulty strap, the accident arose out of faulty binding, not out of loading or unloading. The exclusion thus would not apply.

The term “arising out of” has apparently not been defined in the precise context of this case. In other contexts it has been defined. For example, in workmen’s compensation cases, it has been said the phrase “suggests an inquiry into the character or origin of the risk.” Gorings v. Edwards, 222 So.2d 530 (La.App. 4th Cir. 1969). Also, in Louisiana Insurance Guaranty Ass’n v. Guglielmo, 276 So.2d 720 (La.App. 1st Cir. 1973), we said:

“We likewise find the phrase ‘arises out of’, as used in the definition of covered claims in this instance, relates not to verb tense or the time the claim arises, but rather to the source and nature of the claim.”

Here, we do not think the time of the accident is dispositive. The phrase “arising out of” as used in the policy exclusion, should not be given a temporal connotation as it is the cause of the accident that is determinative.

We find it unnecessary to discuss the other grounds for reversal urged by appellants as there exists a genuine issue of material fact, i. e., whether the accident and resulting injury was caused by the negligence of E & L employees in binding the lumber into bundles.

For the foregoing reasons, the judgment of the trial court is reversed. Appellee is to pay all costs.

REVERSED.


author: ELLIS, Judge:

text:
    David M. FERRELL v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 13549.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      E. Drew McKinnis, Baton Rouge, for plaintiff-appellant David M. Ferrell.
    Pamela A. Prestridge, Baton Rouge, for defendant-appellee South Central Bell Tel. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

In January, 1975, Great River Funding Co. was seeking telephone service from South Central Bell, which required a $300.00 deposit. In lieu thereof, Great River furnished to Bell an “Unlimited Contract of Guaranty”, signed by David M. Ferrell as Guarantor, which reads as follows:

“WITNESSETH: That, whereas South Central Bell Telephone Company, hereinafter called “Telephone Company”, as a condition to furnishing the above named Applicant, at the above stated service location, telecommunications, has requested Applicant to establish credit by making a cash deposit with the Telephone Company to secure payment for telecommunications or in lieu of a deposit at this time, to furnish a satisfactory guarantor for payment of charges for telecommunications; NOW, THEREFORE, the undersigned GUARANTOR, residing at the address shown above, in consideration of the Telephone Company furnishing the Applicant telecommunications without requiring a deposit at this time, hereby absolutely and unconditionally GUARANTEES to the Telephone Company the PAYMENT BY APPLICANT OF ALL CHARGES FOR TELECOMMUNICATIONS, for which Applicant may now be liable or for which Applicant may in the future become liable.
“Guarantor covenants and agrees that, if Applicant at any time shall be in default in the payment of the charges for said telecommunications, the undersigned Guarantor will pay all outstanding charges at the Telephone Company’s business office designated below. In the event Guarantor defaults in making payment at the business office as aforesaid, Guarantor agrees that the amount due from Applicant may be transferred to any account Guarantor has with the Telephone Company, and Guarantor understands and agrees that Guarantor’s telephone service is subject to suspension if all charges, including the charges due from Applicant which have been transferred to Guarantor’s account, are not promptly paid when due.
“Guarantor hereby waives notice of acceptance of the guaranty, notice of default and nonpayment by Applicant, demand and presentment to Guarantor for payment, protest and diligence in bringing suit against any party hereto, and consents that time of payment may be extended by the Telephone Company without notice thereof. If suit be brought to enforce Guarantor’s obligation herein assumed, Guarantor agrees to be further liable and indebted for the court costs and reasonable attorney fees thereby incurred.
“This contract of Guaranty shall remain in full force and effect until 30 days after receipt by the Telephone Company of Guarantor’s written notice to terminate this contract delivered to the Telephone Company’s business office designated below; provided, however, that Guarantor’s liability hereunder shall remain in effect after the termination of this contract with respect to any and all charges for telecommunications incurred by Applicant at any time prior to the effective date of the termination of this contract. This contract of Guaranty shall apply to all telecommunications which Applicant may from time to time be furnished at the above listed service location.”

Telephone service was discontinued by Bell because of non-payment on May 21, 1976, at which time there was a total balance due of $4,807.28. This suit was filed thereafter by Mr. Ferrell, seeking a declaratory judgment declaring the contract to be null and void, and that he owed nothing to Bell. Bell answered and reconvened for the $4,807.28 allegedly due it.

After trial on the merits, judgment was rendered in favor of Bell, dismissing plaintiff’s main demand and rendering judgment in favor of Bell on its reconventional demand. Plaintiff has appealed.

At the trial, Mr. Ferrell admitted having signed the contract of guaranty, but stated that someone at the telephone company had told him that he could not be liable for more than $300.00.

The record further shows that Great River had a spotty credit record, but that its account was current as of January, 1976. Bell furnished no notice of delinquency to Mr. Ferrell until after the service was disconnected and the total amount due had reached $4,807.28.

In this court, Mr. Ferrell makes a number of arguments. First, it is argued that, in failing to notify Mr. Ferrell of the accumulating arrearages, Bell was in bad faith and therefore breached the guaranty contract. However, Bell had no such obligation under the contract, and plaintiff had specifically waived notice of non-payment and default in the contract. Bad faith cannot arise from failure to do that which one is specifically exempt from doing under the terms of a contract.

Mr. Ferrell further argues that his liability should have been limited to $300.00, since his guaranty was given in lieu of a $300.00 deposit. We agree with the trial judge that there is no merit to this contention. The express and unambiguous terms of the guaranty specify no such limit, and Bell permitted the balance due on the phone bill to increase beyond that amount in reliance thereon. The trial court did not accept Mr. Ferrell’s somewhat vague testimony that someone at the phone company had told him that his liability was limited to $300.00. He found that the terms of the agreement were binding on Mr. Ferrell, and imposed no limit to his liability.

Plaintiff’s third contention is that he cannot be held liable for any charges made on the credit cards issued to Great River, because the calls were placed from locations other than Great River’s office, and were therefore not services furnished at “the above listed service location.” The trial judge found that the credit cards were issued to that location, and calls were billed to that location, and that the charges were therefore for telecommunications furnished to that location. We find no error in his determination.

As we said in South Central Bell Telephone Company v. McKay, 285 So.2d 563 (La.App. 1st Cir. 1973):

“Contracts are the law between the parties and, in the absence of fraud, will be enforced by the courts regardless of the results, provided they do not contravene good morals or public policy.”

Plaintiff is bound by the contract which he executed, by the terms of which he is obligated to pay the charges incurred by Great River for telephone service.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    BUDDY PATTERSON GATEWAY GULF SERVICE v. Elzie HOWELL.
    No. 13560.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Robert W. Troyer, Ponchatoula, for plaintiff.
    Dennis C. Kronlage, Hammond, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This is an appeal involving the sufficiency of evidence required to obtain a default judgment in a suit on an open account. We find that the evidence presented to the city court was not adequate to establish a prima face case. We therefore vacate the default judgment.

Plaintiff-appellee, Buddy Patterson Gateway Gulf, filed suit on an open account in the Hammond City Court, seeking $827.37 allegedly owed by defendant-appellant, Elzie Howell. No answer was filed. Plaintiff obtained a judgment by default as provided for in La.Code of Civ.P. art. 4916.

“A. If the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
“B. The plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

In order to obtain the judgment the plaintiff offered as evidence several items: the petition previously filed, an affidavit of the correctness of account, the citation, and the sheriff’s return showing that service had been made. The petition and the affidavit both referred to “the itemized account attached hereto.” However, the itemized account was not attached to either document and does not appear anywhere in the record.

Defendant-appellant urges that the default judgment is invalid for several reasons. Because we agree with his primary contention, that the evidence was not sufficient to establish the prima facie case, we find it unnecessary to address any other arguments.

Defendant argues correctly that plaintiff must introduce a copy of the itemized account in order to establish the prima facie case. A prima facie case is established only when the evidence proves the essential allegations of the petition to the same extent required if those allegations had been specifically denied. Bonfouca Investment Corp. v. Eubanks, 347 So.2d 1277 (La.App. 1st Cir. 1977); Premier Brands, Inc. v. Lloyd O. Martiny, 377 So.2d 864 (La.App. 4th Cir. 1979). If the defendant had filed an answer denying that he owed the money sued for, the judge certainly would not have rendered judgment based only on plaintiff’s bald assertion that the money was owed. More evidence would be required to prove the prima facie case.

La.Code of Civ.P. article 1702 governs the confirmation of default judgments in district courts and contains similar language to article 4916 which governs defaults in city courts. Article 1702 specifies that the affidavit of the correctness of the account shall be prima facie proof. Although the statute does not explicitly state that the plaintiff must produce the itemized account, the language of the statute implies that the account must be submitted. It would be meaningless to have an affidavit attesting to the correctness of an account if the account itself was not available for examination.

The fourth circuit recently interpreted article 1702 in a case similar to the instant case. The plaintiff obtained a confirmation of a default judgment in a suit on an open account. An affidavit of correctness of account was offered into evidence, reciting that the balance sued upon was correct. The record did not contain a copy of the account nor any reference to it. The balance of the account was simply stated in the affidavit. The court held that the copy of the itemized statement was essential to establish the required prima facie case. The court noted that “[A] naked declaration by an employee that the balance of some unproduced account is correct does not constitute the prima facie proof.” American District Telegraph Co. v. Rault, 378 So.2d 194 (La.App. 4th Cir. 1979).

In conclusion, it is well established that the itemized statement of the account and the affidavit of correctness, are the basic requisites to obtain a default judgment in a suit on an open account. In Sobel v. R & D Distributors, Inc., 131 So.2d 570 (La.App. 4th Cir. 1961), at p. 571, this principal was stated unequivocally.

“The proof required for a confirmation by default in a suit on an open account, under Art. 312 of the Code of Practice (now Art. 1702 of the LSA-Code of Civil Procedure) is an itemized statement of the account, duly attested.” (Emphasis added.)

For the reasons given above, the judgment of the city court is vacated and the case is remanded for proceedings consistent with this opinion. Plaintiff-appellee is cast for all costs.

VACATED AND REMANDED.


author: PER CURIAM.

text:
    Johnny RANKINS v. Surlia Williams RANKINS.
    No. 13563.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Joel B. Dickinson, Baton Rouge, for plaintiff-appellant, Johnny Rankins.
    Alfred W. Speer, Baton Rouge, for defendant-appellee, Surlia Williams Rankins.
    Before ELLIS, COLE and WATKINS, JJ.
   PER CURIAM.

This is an appeal from a judgment of the East Baton Rouge Family Court denying a father’s petition to alter a prior judgment of that Court awarding custody to the mother. We have thoroughly reviewed the record and find no error in fact or in law in the trial court’s determination that custody should remain in the mother.

AFFIRMED.


author: COLE, Judge:

text:
    Roger HUTCHINSON v. Ricky AIME d/b/a Aime’s Automotive Center and Maryland Casualty Company.
    No. 13567.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    John A. Lieux, Gonzales, for plaintiff.
    Daniel R. Atkinson, Baton Rouge, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge:

Plaintiff, Roger Hutchinson, appeals from a judgment denying him recovery for property damage to his truck sustained while the vehicle was on defendant’s premises. Plaintiff’s truck had previously been wrecked and had been towed to Aime’s Automotive Center for tire repair. The work was completed on November 1, 1977. Hutchinson went to defendant’s repair shop, paid the bill and attempted to drive the truck away. When the truck would not start, Hutchinson and Ricky Aime examined the motor. They discovered the accident had caused extensive damage to the transmission, the radiator, the motor, the motor supports and the axle.

The testimony at trial is conflicting as to the arrangements made concerning the truck. Aime testified that his shop did not perform any automatic transmission work or body work and that Hutchinson had agreed to have the truck towed away that night. Hutchinson testified he knew people who had taken their cars to Aime’s for automatic transmission repair. He stated that he and the defendant agreed to look around for various parts and that he understood Aime would repair the truck.

That night at approximately 8:00 o’clock the truck was extensively damaged by fire. The cause of the fire is unknown and there was no evidence of an investigation to determine its origin.

Hutchinson filed suit against Aime and his insurer, Maryland Casualty Company, alleging Aime was responsible for the damage as a compensated depositary. The trial court found for defendants. Since written reasons were not assigned, we can only infer what his factual conclusions might have been.

The deciding issue is whether or not the defendant was a depositary at the time the truck was damaged. Because we find no relationship of deposit, we affirm the trial court’s judgment.

A thorough examination of the record reveals the relationship of deposit has not been proven by a preponderance of the evidence. Deposit is defined in Louisiana Civil Code Article 2926 as follows:

“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.”

A deposit is either voluntary or necessary. C.C. 2931. A voluntary deposit occurs when there is mutual consent of the person making the deposit and the person receiving it. C.C. 2932. The relationship of an automobile repairman and automobile owner has been characterized as a compensated voluntary deposit. Travelers Insurance Co. v. General Auto Service, Inc., 220 So.2d 738 (La.App. 4th Cir. 1969); Miller v. Hammond Motors, 40 So.2d 29 (La.App. 1st Cir. 1949).

The trial record clearly indicates Aime was a depositary of the truck from the time he received it until the time Hutchinson accepted the work as completed and attempted to drive the truck away. During this time period there was mutual consent that Aime was the “custodian” of the truck and should use due care accordingly. As a depositary, Aime was obligated to return the truck to Hutchinson. This return was accomplished when Hutchinson paid for the tire repairs and attempted to drive the truck away. The deposit was thereby terminated.

Plaintiff argues that under C.C. 2933, the defendant had given his implied consent to be the depositary by allowing the truck to remain on his premises. Article 2933 reads as follows:

“The voluntary deposit can only be regularly made by the owner of the thing deposited, or with his consent expressed or implied.
“Consent is implied when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it.”

This article is applicable when the issue concerns the initial establishment of a deposit relationship through delivery. It is inappropriate in the present circumstances where the truck was already on the premises. It is true the defendant allowed the truck to remain. However, it must be noted the defendant fully expected the plaintiff to remove his truck that evening and did not intend to repair the truck or to be responsible for the truck in any way. In light of the fact that the truck was immobilized and required towing, defendant’s allowing it to remain temporarily on his premises was nothing more than a business courtesy.

Plaintiff’s testimony at trial contains no concrete statements that the defendant actually agreed to repair the truck. The fact that the defendant allegedly agreed to help plaintiff look for parts is ambiguous and cannot be considered as a commitment to resume responsibility for the truck. This rather weak evidence, when considered with respect to statements by defendant and a former employee that his shop was incapable of performing repairs on automatic transmissions, does not prove a deposit relationship was re-established.

For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    PAT’S FURNITURE SHOWROOMS, INC. v. The FURNITURE WAREHOUSE OF HOUMA, INC., et al.
    No. 13570.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Bruce S. Kingsdorf, New Orleans, for plaintiff and appellant.
    Ernest A. Kelly, Houma, for defendants and appellees.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

Ned L. LeBlanc and Dennis P. Fanguy were in the furniture business together in Houma, Louisiana. Their business was incorporated as The Furniture Warehouse of Houma, Inc. In 1978, they decided to liquidate the business, which had not been doing well, by means of a sale. It was hoped that there would be sufficient profit from the sale to enable all of the business debts to be paid.

Through Thomas C. Baynham, who handled advertising for defendants’ store and for Pat Mashburn’s stores, an agreement was reached, under which Mashburn would furnish inventory at cost to defendants to use in the sale. According to Baynham and Mashburn, these goods were to be paid for as they were sold. LeBlanc testified that there was no specific agreement as to how the goods were to be paid for, other than out of the proceeds of the sale.

In June, July and August, 1978, various merchandise was delivered and payments made thereon, without any difficulty arising between the parties. On August 22, 1978, Mashburn was paid with a bad check, which was never made good. No further deliveries were made thereafter, and some items were returned to Mashburn for credit after the sale had ended. There was a final balance due of $10,863.58.

This suit was originally filed against The Furniture Warehouse of Houma, Inc. Subsequently, the petition was amended to join Mr. LeBlanc, and Mr. Fanguy as defendants, alleged to be solidarily liable with the corporation. The petition alleges that the goods were sold to LeBlanc and Fanguy, individually, for the benefit of the corporation. The petition further alleges fraud on the part of LeBlanc and Fanguy, in that they intentionally delivered a worthless check to plaintiff, and that they diverted the funds which were to be paid to plaintiff to pay their personal and business debts. Issue was never joined as to Furniture Warehouse. LeBlanc and Fanguy answered denying any personal liability for the debts of the corporation or any fraudulent behavior.

After trial on the merits, the trial judge found that “no credible evidence was presented to support any claims against Ned L. LeBlanc, Jr. and Dennis P. Fanguy” and dismissed the suit as to them. Plaintiff has appealed.

The only evidence relative to the understanding of the parties is their own testimony. Mr. Mashburn and Mr. Baynham both testified that they thought they were doing business with Mr. LeBlanc and Mr. Fanguy individually, and that they did not know the business was incorporated. Mr. LeBlanc and Mr. Fanguy both stated that they were at all times acting for the corporation, but that neither of them ever informed either Mr. Mashburn or Mr. Baynham of that fact. All invoices and checks in the record are directed to or in the name of Furniture Warehouse, without any corporate designation being shown.

Under the above circumstances, which are undisputed, we find that the trial judge erred as a matter of law. It is settled that an agent has the duty to disclose his capacity as such if he is to escape personal liability for his acts. Moreover, the agent has the burden of proving that he disclosed his representative capacity and the identity of his principal. Articles 3012 and 3013, Civil Code; Prevost v. Gomez, 251 So.2d 470 (La.App. 1st Cir. 1971); Eastin v. Ramey, 257 So.2d 717 (La.App. 3rd Cir. 1972); Chartres Corporation v. Twilbeck, 305 So.2d 730 (La.App. 4th Cir. 1974).

In this case, it is clear that defendants did not make the necessary disclosures. Plaintiff was not aware, and had no reason to be aware, that defendants were acting in any capacity other than individually, and is, therefore, entitled to judgment against defendants.

The judgment appealed from is therefore reversed, and there will be judgment in favor of Pat’s Furniture Showrooms, Inc., and against defendants Ned L. LeBlanc and Dennis P. Fanguy, in solido, in the sum of $10,863.58 with legal interest from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


text:
    PRO-ACTION PARTNERSHIP et al. v. BONAPARTE’S FRIED CHICKEN, INC.
    No. 13574.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      William C. Shockey, Baton Rouge, for plaintiffs-appellants, Pro-Action Partnership.
    William W. Hall, Kenner, for defendant-appellee, Bonaparte’s Fried Chicken, Inc.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an eviction rule brought by Pro-Action Partnership, a Louisiana partnership, the lessor, against Bonaparte’s Fried Chicken, Inc., lessee. The trial court found that Bonaparte’s was not in default of its rental payments or of its obligation to maintain insurance, and refused the eviction. Finding that Bonaparte’s violated its obligation to maintain insurance in accordance with the requirements set forth in the lease instrument, and was properly placed in default, we reverse on the main issue, eviction.

On April 24, 1979, Pro-Action and Bonaparte’s entered into a written lease of the premises in question, located at 1723 Staring or Starring (the record differs as to the spelling) Lane, Baton Rouge. The stated term of the lease is 20 years, beginning June 1,1979. Rent is to be paid monthly, in advance.

Lessee, Bonaparte’s, is obligated to carry fire and extended coverage insurance under the terms of paragraph 8 of the lease instrument, which reads as follows:

“8. Lessee agrees to carry, at its own expense, during the term of this lease, fire and extended coverage insurance on the improvements forming a part of the leased premises. Such insurance shall at all times provide that it may not be can-celled without ten (10) days prior written notice to Lessor. In the event of damage to or destruction of the said improvements by fire or other casualty, Lessor at its sole cost and expense, shall promptly restore such improvements as nearly as possible to their condition prior to such damage or destruction. All insurance proceeds received by Lessor or Lessee shall be applied to the payment for such restoration. Lessee shall designate Lessor and any mortgagee holding a secured interest in the leased premises as beneficiaries and shall furnish Lessor and such mortgagee with a copy of the current policy.”

The lease instrument set forth the procedure for putting in default in paragraph 12, which reads as follows:

“12. In the event Lessee defaults in the timely payment of any installment of rental or Lessee defaults in the performance or observance of any other covenant of its part herein contained and within thirty (30) days after receipt by Lessee of written notice of such default, Lessee has not cured the default or does not proceed and continue with due diligence to cure such default until the same is cured, then in either such event Lessor may, at his option, enforce this lease in any manner provided by law or terminate this lease. If this lease is so terminated by Lessor, this lease shall cease and come to an end as if that were the day originally fixed for the expiration of the term thereof.”

It should be noted that thereby Bonaparte’s was obligated to name Pro-Action, lessor and mortgagee, as loss payee.

On November 15, 1979, Ranger Insurance Co. issued to Chicken Coop & Bonaparte’s Fried Chicken, Inc., a notice of cancellation of its special multi-peril policy on certain properties effective ten days from the receipt of notice unless the policy was surrendered to them sooner. Bonaparte’s operated a chain of fast-food restaurants, and the location in question was affected by this cancellation.

Tom Hudson & Associates, Inc., Baton Rouge, an insurance agency, thereafter at Bonaparte’s request obtained a binder from Fireman’s Fund Insurance Co. covering all risks to the buildings and fire on the contents on Bonaparte’s Louisiana operations. The binder took effect at 12:01 a. m. November 25, 1979, and expired at 12:01 December 4, 1979. An attachment listed the premises in question as one of the locations covered. There is no declaration or indication in the binder that Pro-Action is a loss payee.

A new binder was issued through Tom Hudson & Associates, Inc., effective 4:00 p. m. December 6,1979, and expiring January 6, 1980. A list of loss payees, mortgagees, and additional named insureds for several locations was set forth in an attachment, Schedule “C”. The location in question was not listed under the loss payees on this Schedule “C”.

On November 27, 1979, V.R. Maggio, partner in Pro-Action, addressed a letter to Chip Meehan, Vice-President of Bonaparte’s, by certified mail, return receipt requested, demanding that Bonaparte’s vacate the premises in question. The second paragraph of that letter read as follows:

“Bonaparte’s is in default in in (sic) our lease in the following areas: (1.) Payment is past due from September, 1979; official notice sent to you October, 1979. (2.) default of paragraph 8, of our lease; notice of cancellation attached.”

The trial court found that insurance was in effect on November 27, 1979, and that, thus, Bonaparte’s was not in default for failure to maintain insurance on the date the letter was written. We cannot agree.

The binder that took effect on December 6, 1979, named loss payees for several locations, but did not indicate that Pro-Action, or any other individual, firm, or partnership was loss payee of the premises in question. We must, therefore, assume that Pro-Action was not named loss payee under the earlier binder that took effect November 25, 1979, as there is nothing on the face of the binder or attachment to so indicate. The lease instrument clearly requires that Pro-Action be named as “beneficiary” of the fire and extended coverage insurance which Bonaparte’s agreed to carry at all times.

Bonaparte’s violated the terms of the lease agreement by not causing Pro-Action to be named loss payee. Bonaparte’s violation of the terms of the lease agreement extended at least through the time of the expiration of the second binder, January 6, 1980. Paragraph 12 of the lease instrument gave the lessee 30 days in which to correct a violation of the terms of the lease after it received written notice of default. The return receipt to Maggio’s November 27,1979 letter that placed Bonaparte’s in default was signed the next day, November 28, 1979. Thus, Bonaparte’s had until December 28,1979, to correct its default. It failed to do so. Therefore, under the terms of paragraph 12. of the lease instrument, the lease ceased to exist as of December 29, 1979, and plaintiff-lessor is entitled to eviction as sought.

We note that a certificate of insurance was issued by Tom Hudson & Associates, Inc., on January 18, 1980 (the date of the trial on the rule), naming Pro-Action as mortgagee of the building at location 1723 Staring Lane. However, at that time, more than 30 days had elapsed since the putting in default, and the lease had terminated under its own terms.

Plaintiffs also sought and had obtained, ex parte, a sequestration of Bonaparte’s movable goods on the leased premises. The trial court ruled only by implication on the continuation of the sequestration. It properly found that Bonaparte’s was not given the required 30 days to pay rent after being placed in default. Therefore, the sequestration, founded upon late payment of rent, should be considered lifted, and we so interpret the effect of the trial court’s ruling.

The judgment of the trial court is reversed in refusing to order the eviction of Bonaparte’s Fried Chicken, Inc., from the premises at 1723 Staring Lane, Baton Rouge, Louisiana, and that corporation is hereby ordered evicted from those premises. The judgment of the trial court impliedly lifting the sequestration of Bonaparte’s movables on the premises formerly subject to lease is affirmed. All costs shall be paid by Bonaparte’s Fried Chicken, Inc.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


author: WATKINS, Judge:

text:
    HOUSING AUTHORITY OF the CITY OF HOUMA v. Orelia JOHNSON.
    No. 13652.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Charles M. Bass, Houma, for defendant and appellant, Bayou Lafourche Legal Services, Inc.
    Laurence Best, Houma, for plaintiff and appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge:

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

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Ernest SPENCER v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, RUSTON STATE SCHOOL.
    No. 13738.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Michael L. Womack, Monroe, for appellee. Joseph A. Donchess, Staff Atty., Dept, of Health and Human Resources, Baton Rouge, for appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal taken by the Department of Health and Human Resources, Ru-sten State School, from the denial of a Motion for Summary Disposition filed by that State agency before the Civil Service Commission in an appeal taken to that Commission by an employee of that agency, Ernest Spencer, from a discharge of that employee. The State agency appealed to this Court, and then filed an exception of no cause of action to Spencer’s appeal to the Civil Service Commission.

The denial of the Motion for Summary Disposition by the Civil Service Commission was clearly an interlocutory determination of that Commission, analogous to a denial of a motion for summary judgment before a trial court, which is not appealable. See LSA-C.C.P. art. 968; cf. C.C.P. art. 2083.

Article 10, Section 12 of the Louisiana Constitution of 1974 clearly indicates that an appeal from a judgment of the Civil Service Commission is permitted only when that judgment becomes final. That Section, quoted in full, reads as follows:

“Section 12. Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

Reading that Constitutional provision in the light of the procedural law of this State, it is apparent that a judgment of the Civil Service Commission denying summary dismissal is not a final judgment, and not subject to appeal. This court under Rule 7, Section 5(c) of the Uniform Rules, Courts of Appeal, may dismiss on its own motion an appeal of which it does not have jurisdiction. Because the judgment of the Civil Service Commission is not a final judgment, this Court is without jurisdiction under the quoted article and Section of this State’s Constitution to hear the appeal, and the appeal is accordingly dismissed. As this court lacks jurisdiction, it cannot consider the State agency’s exception of no cause of action.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Joseph D. LUPO v. Mildred D. LUPO.
    No. 13568.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.

      Joseph D. Lupo, Independence, pro se, and Frank L. Koles, III, Greensburg, for plaintiff.
    Martha Jumonville, Mandeville, for defendant.
    Before LOTTINGER, PONDER and LEAR, JJ.
   PONDER, Judge.

Plaintiff, Joseph D. Lupo, appealed from the judgment granting him a divorce upon grounds of two year separation in fact, but awarding the custody of two minor children to the defendant, and ordering the payment of child support and alimony. Defendant answered the appeal and asked for damages for frivolous appeal.

The issues are the effect to be given to uncompleted plans to try the case in Baton Rouge by an appointed judge; the effect to be given to the signing of judgments in Baton Rouge, the failure to try the case on the merits without consideration of pending motions; the failure to dispose of pending interlocutory motions; the granting of a continuance; the granting of a motion to set for trial a pending motion for a new trial, and the finding that the defendant was free of fault.

On a previous appeal, this court reversed the judgment granting a divorce and awarding custody of minor children, child support and alimony. The case was remanded for trial on its merits. Lupo v. Lupo, 366 So.2d 932 (La.App. 1st Cir. 1978).

There were pending at that time rules to declare certain property community, to hold plaintiff in contempt for violation of injunction against disposing of community property, and a motion for a new trial from a judgment reducing alimony and child support. After a trial on November 2, 1979, the appointed judge granted divorce to the plaintiff, granted custody of two minor children to the defendant and ordered the payment of child support and alimony.

Plaintiff’s complaint that the appointed judge intended and made plans to try the case in Baton Rouge rather than Amite is without merit. Even if there be error, it was harmless, since the trial was held in Amite.

Plaintiff’s complaint that several judgments were signed in Baton Rouge is also without merit. He cites LSA-C.C.P. Arts. 1911 and 1912 before amendment on 1974. As these articles now read, the signing in Baton Rouge is permitted.

Another specification of error is that the court allowed the trial of motions and rules filed between the appeal and the remand. Plaintiff argues, if we understand, that because the divorce was not contested on the appeal, the reversal and remand by this court did not apply to the divorce. We disagree. The reversal was on the basis that the proper notice of the trial on the merits had not been given. The remand was granted for trial on the merits. This includes all the issues.

Mr. Lupo complains that he was required to take the stand to prevent the trial of a rule that had not been served on him. Since he was not required to proceed to trial he was deprived of no rights. The complaint that the rule was continued and ultimately tried in Amite is also without merit. Appellant admits in his brief that the decision was ultimately in his favor. Surely, he does not contend that he should not be subjected to the ordinary legal process.

Plaintiff finds fault with the court’s signing on October 16, 1979, of a motion to fix for trial a motion for a new trial filed on November 1, 1978, but which had not been heard. The judgment complained of was a reduction in alimony and child support and forms no part of the judgment appealed from. We decline to consider this point. Plaintiff will have his day in court when the new trial is heard.

In a seeming reversal of logic, plaintiff complains that some interlocutory motions were not disposed of prior to trial on the merits. These motions were in regard to community property. We know of no law, and appellant has cited none, requiring these be disposed of prior to trial on the issues of divorce, fault, alimony and child support. Further, we find no objection by him in the record.

Appellant complains that the court erred in finding no fault on appellee’s part so as to bar her receiving alimony. We have examined the record and find that the evidence supports the conclusion. The amounts set were the result of a stipulation. Appellant will not be heard on that complaint.

Defendant alleges plaintiff’s appeal is an insincere delay tactic. She prays for court costs and damages for frivolous appeal. Appeals are favored by law and an appeal will not be regarded as frivolous unless it clearly appears that appellant does not honestly believe that there is merit in his contentions and that the proceedings were taken merely for purposes of delay. LSA-C.C.P. Art. 2164. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973). Although we find no merit in plaintiff’s legal arguments, we cannot say his appeal was insincere or instituted merely for purposes of delay.

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

AFFIRMED.

      . LSA-C.C.P. Art. 1911:
      “Except as otherwise provided by law, every final judgment shall be signed by the judge.... For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”
      LSA-C.C.P. Art. 1912:
      “A final judgment may be signed in any parish within the state and shall be sent to the clerk of the parish in which the case is pending.”


text:
    CARPET CO-OP OF GEORGIA, INC. v. ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC., et al.
    No. 13611.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Keith D. Jones, McKernan & Jones, Baton Rouge, for plaintiff, Carpet Co-op of Georgia, Inc.
    D. Bert Garraway, Baton Rouge, for defendant, Economy Carpets Manufacturers & Distributors, Inc., et al.
    Bart Eaton, Percy, Macmurdo & Eaton, Baton Rouge, for defendant, D. Bert Garra-way.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants, Bert Garraway and Economy Carpets Manufacturers and Distributors, Inc., appealed from the judgment against them.

The issues are: the existence of surety-ship contract binding Garraway; alleged modifications in the contract by plaintiff and the amount of the award.

We affirm.

Defendant, Economy Carpets, ordered some carpet from plaintiff, who required a personal guaranty from defendant, Garra-way, before delivery. Defendant, Economy Carpets, failed to pay.

The first issue depends upon the effect to be given the following:

“Dear Mr. Garraway:
This letter is written in behalf of Carpet Co-op, Inc. of Dalton, Georgia.
In order for Carpet Co-op, Inc. to complete the proposed business transaction with Economy Carpets of Baton Rouge, Louisiana, Carpets Co-op, Inc. requests that you deliver to its agent your personal guarantee of payment within forty-five (45) days of delivery of certain agreed carpet. It is understood that the limit of your guarantee will be $40,000.00.
It is my understanding that a representative of Carpet Co-op, Inc. will deliver this letter and receive your guarantee personally within the next day or two.
Yours very truly,
MITCHELL, MITCHELL, COP-PEDGE, BOYETT, WESTER & BATES
/s/ Erwin Mitchell”

Defendant Garraway wrote on the bottom of the letter

“9/2/77
I agree to the terms and conditions set forth hereinabove.
/s/ D. Bert Garraway”

Defendant Garraway argues that this is not a valid suretyship contract but a promise to execute a suretyship agreement.

Jurisprudence interpreting surety-ship Articles 3036 and 3039 of the Louisiana Civil Code states as a general rule that the surety contract need not observe technical formalities. It must, however, express an intention by the party signing it to be bound. Livingston State Bank & Trust Company v. Steel-Tek, Inc., 335 So.2d 482 (La.App. 1st Cir. 1976); Ball Marketing Enterprise v. Rainbow Tomato Company, 340 So.2d 700 (La.App. 3rd Cir. 1976).

The letter was signed by Garraway as a condition precedent to the unloading of a truckload of carpet. Under the terms of the letter and the circumstances of the signing we agree that plaintiff and Garraway understood and intended that the letter be a present guaranty rather than expression of intent to sign a guaranty letter.

Garraway contends that even if a valid suretyship contract exist, modification of the principal contract by plaintiff’s delivery of the wrong carpeting has discharged his suretyship obligation.

There is conflicting testimony as to compliance of the plaintiff with the specifications of Economy Carpet’s order. The trial court chose to believe plaintiff’s witnesses and held that plaintiff complied with the specifications. We have examined the record and find that there is no error.

Economy Carpets complains that plaintiff did not prove the value of the carpet. Again there was disagreement among the witnesses and the court chose to believe plaintiff’s contentions. The record supports this conclusion and we find no error.

For the above reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Bob H. HESTER et al. v. MONTGOMERY ELEVATOR COMPANY.
    No. 13617.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Wiley R. Dial, Baton Rouge, for plaintiffs-appellants Bob H. Hester and Connie F. Hester.
    William Faller, Baton Rouge, for defendant-appellee Montgomery Elevator Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by the plaintiffs, Bob and Connie Hester, for injuries allegedly sustained when they were trapped in an elevator in the new governmental building in Baton Rouge. From a judgment absolving the defendant, Montgomery Elevator Company, of liability, the plaintiffs perfected this appeal.

The plaintiffs argue that the trial court erred in failing to apply the doctrine of res ipsa loquitur and the doctrine of strict liability under La.C.C. art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975).

The plaintiffs were in the process of moving some books into Bob Hester’s new office when the elevator in which they were riding stopped between floors in the building. They pulled the alarm button on the control panel of the elevator, and were extricated from the elevator about 30 minutes later. Other than a slight physical injury to Bob Hester, the only damage complained of by the plaintiffs is mental agitation. The plaintiffs contend that the doctrine of res ipsa should be applied to infer negligence or, alternatively, that the defendant should be held strictly liable .under La.C.C. art. 2317 and Loescher v. Parr, supra.

The trial judge refused to apply res ipsa because the plaintiffs failed to show that the elevator was within the complete control of the defendant sufficient to merit application of the inference. Though the new governmental building was not complete, it was in the final stages of completion and some of the offices had been occupied. The elevators were operational and in use. Exclusive control by the defendant was therefore not present, and the doctrine of res ipsa was inapplicable. We agree with the trial judge’s findings of fact and application of law in this regard and affirm his decision.

Lack of control by the defendant was also the reason the trial judge refused to apply the doctrine of strict liability. Though he found that the elevator was defective, the judge correctly noted that the instrumentality must have been within the control of the defendant for the doctrine of strict liability to attach. Evidence that the elevator was being serviced by the defendant was not sufficient to apply the doctrine. Again, we are satisfied that the trial court correctly decided the factual and legal questions under the doctrine of strict liability.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed in all respects. The plaintiffs will bear the costs of this appeal.

AFFIRMED.


text:
    LABARAMA, INC. v. QUALITY MATERIALS OF TANGIPAHOA PARISH, INC.
    No. 13622.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Charles Walker, Hammond, for plaintiff.
    L. B. Ponder, Jr., Amite, for defendant.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment granting a reconventional demand for the cancellation of a sand and gravel lease.

The issues are the propriety of the dissolution of a restraining order, application of res judicata to the questions of length of the lease and development of the leased premises; and the violation of the terms of the lease.

We reverse and remand.

Quality Materials of Tangipahoa, Inc., lessor, previously filed suit against Labara-ma, Inc., lessee, to cancel a sand and gravel lease. Lessee reconvened asking specific performance, damages for alleged wrongful eviction and breach of lessor’s obligations. Lessee appealed; this court reversed the judgment and declared the lease to be in full force. The court also declared still effective a counter-letter containing additional obligations. Quality Materials of Tangipahoa, Inc. v. Labarama, Inc., 361 So.2d 1285 (La.App. 1st Cir. 1978), writ denied 363 So.2d 922, 923 (La.).

Subsequently, when lessee informed lessor that operations under the lease would resume, lessor responded that it refused to reconduct the lease. Lessee petitioned for a temporary restraining order and an injunction. Lessor moved to have the temporary restraining order dissolved, and reconvened to have the lease cancelled for breach of lessee’s obligations; in the alternative it sought to have the court amend the lease as to site, royalty amount and term. Both parties moved for summary judgment on the question of the validity of the lease. The court dissolved the temporary restraining order, entered judgment cancelling the lease and denied lessee’s prayer for injunction.

We are unable to determine from the record if the trial court proceeded on the motion for summary judgment or decided the case on the merits by stipulation of counsel after memoranda were submitted. In either case we reverse and remand.

Appellant contends that the questions of extension of the term of the lease and the economical development of the lease are res judicata. We agree. These issues were expressly treated by the court in the previous appeal.

Appellee continues to refer to the recon-duction of the lease, even saying that this court has reconducted the lease. Counsel is grossly in error. Reconduction is entirely inapplicable. The term of the lease was extended by the provisions of the lease not by operation of law.

Appellee continues to argue that the lessee has failed to develop the lease economically. That issue was treated by this court. The exception of res judicata should have been maintained on the issues of term of the lease and the economic development.

The motion for summary judgment to cancel the lease on the grounds of the failure to supply insurance policies and to abide by the terms of the counter-letter should not have been granted. The affidavit of the appellee is contradicted by the affidavit of the appellant. These disputed facts prevent the issuance of a summary judgment.

If the decision is on the merits, the record does not reveal the basis of the trial court’s decision. If not based on the issues held to be res judicata, it has to be reversed; if based on the failure to furnish insurance or on breach of terms of the counter-letter we find no evidence to support the court’s decision. LSA-C.C.P. Art. 2164 grants to this court the discretion to remand a case on its own motion when the interest of justice requires it. Missouri Pacific Railroad Company v. Louisiana Public Service Commission, 241 La. 242, 128 So.2d 644 (1961). We find that the present case warrants the exercise of this discretion. We therefore reverse the judgment and remand for a trial on the merits the issues of failure to supply insurance policies and compliance with the terms of the counter-letter.

Because of our conclusions we do not reach the alternative demands. However, we note that appellee has cited no authority giving us the power to rewrite the contract and we know of none. Also, because of our decision we deny the defendant’s claims for damages and attorney fees.

For these reasons, the judgments are reversed and the case is remanded for further proceedings not inconsistent with these reasons.

Appellee is to bear the costs of this appeal. All other costs will await the outcome of the case.

REVERSED AND REMANDED.


author: EDWARDS, Judge.

text:
    Linda D. DUPONT, Wife v. Martin DUPONT, Husband.
    No. 13626.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Keith M. Whipple, Houma, for plaintiff and appellant.
    Robert D. Morvant, Thibodaux, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Linda D. Dupont, filed suit in the thirty-second judicial district court, Parish of Terrebonne, seeking a separation from bed and board from her husband, Martin Dupont, the defendant. Counsel for defendant filed a declinatory exception of improper venue. Following trial of the exception, judgment was rendered maintaining the exception and transferring the matter to the seventeenth judicial district court, Parish of Lafourche. Plaintiff appeals, claiming that the trial court manifestly erred in evaluating the facts. We dismiss the appeal.

An appeal may be taken from either a final judgment or an interlocutory judgment which may cause irreparable harm. LSA-C.C. Art. 2083. No appeal lies from a trial court order transferring a case to another district under the venue-transfer articles, LSA-C.C.P. Arts. 121 and 122. Communication Counselors Network, Inc. v. Burger Chef of Louisiana, Inc., 291 So.2d 849 (La.App. 4th Cir. 1974); Paul v. Wilcox, 228 So.2d 487 (La.App. 1st Cir. 1969); Broussard v. Liberty Mutual Insurance Company, 204 So.2d 714 (La.App. 3rd Cir. 1967), application denied 251 La. 753, 206 So.2d 97 (1968). See also Pasquier, Batson & Company v. Ewing, 367 So.2d 28 (La.App. 2nd Cir. 1978), writ denied 368 So.2d 136 (La.1979).

Because the judgment appealed from is merely interlocutory, and because no irreparable harm has been alleged or shown, we dismiss the appeal ex proprio motu. All costs of this appeal are to be paid by Linda D. Dupont. All other costs are to await a final determination on the merits.

APPEAL DISMISSED.


text:
    Helen and Roger D. MELANCON v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY.
    No. 13627.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    William H. Cooper, Jr., Baton Rouge, for plaintiffs-appellees Helen & Roger D. Me-lancon.
    Ben L. Guelfo, Baton Rouge, for defendant-appellant American Hardware Mutual Insurance Co.
    Robert W. Smith, Baton Rouge, for third party defendant-appellee United Services Automobile Association.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from the judgment awarding damages to Mrs. Melancon resulting from the fall of a porch swing.

The issues are the liability of the defendant, failure to require contribution from Mr. Melancon and the awarding of medical expenses to Mrs. Melancon.

We amend and affirm.

Mr. Melancon purchased from defendant’s insured, Drusilla Hardware, a chain, eye hooks and some S-shaped hooks to install a porch swing. Shortly after installation, when Mrs. Melancon sat in the swing, one of the S-shaped hooks gave way; the swing fell and injured her leg.

Defendant argues plaintiff failed to prove its insured recommended the purchase of the S-shaped hooks. In the alternative, defendant contends Mr. Melancon is liable as a joint tort-feasor since he was a civil engineer and should have observed the inadequacy of the S-shaped hooks.

There is conflicting testimony about the circumstances of the purchase of S-shaped hooks. The trial court chose to believe that an employee of defendant’s insured advised plaintiff to purchase the S-shaped hooks. This is within his discretion; we cannot say he erred.

We also believe there is no manifest error in the decision that Mr. Melancon’s reliance on the expert knowledge of the employee was justified. Pierre v. Landry, 341 So.2d 891 (La.1977).

Defendant contends-that the trial court erred in awarding the medical expenses to Mrs. Melancon.

Prior to the last amendment of LSA-C.C.P. Art. 686, effective January 1, 1980, the husband was the proper plaintiff to enforce an obligation to a community. This accident occurred and the suit was filed, tried and processed to judgment before the effective date of the amendment. We therefore believe that the trial court erred in giving judgment to Mrs. Melancon for the medical expenses. We amend the judgment to decrease the award to $3,000.00.

For the above reasons, the judgment of the trial court is amended and affirmed as amended at appellant’s costs.

AMENDED AND AFFIRMED.


text:
    William WILSON v. Freddie Jessie LIVINGSTON et al.
    No. 13628.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Thomas H. Watts, Baton Rouge, for plaintiff-appellant William Wilson.

      Walter C. Dumas, Baton Rouge, for defendant-appellant L. L. Haynes, Jr.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This breach of contract action is brought by the plaintiff, William Wilson, for faulty repair work on a house addition done by the defendant, Freddie Jessie Livingston. The defendant appeals an adverse trial court judgment awarding the plaintiff $7,500.00 in damages. A trial court judgment in favor of the second defendant, the Rev. L. L. Haynes, Jr., the surety for Livingston, is not questioned on appeal and is therefore considered final.

In mid 1976, the plaintiff and the defendant entered into a building contract for $8,500.00. The defendant contractor agreed to build a carport and a garage on the plaintiff’s Baton Rouge property. The plaintiff testified that he advanced the defendant partial payments prior to the time those payments. were due under the contract terms in an effort to maintain amicable relations with the defendant. Advance payments were made even though the work on the job was progressing poorly.

Sometime after the original contract was confected, a $3,000.00 change in the contract was made. For the additional $3,000.00, the defendant agreed to convert the original carport to a den and to build a garage at the end of an extended driveway. Numerous problems arose during the construction, and the defendant never completed the job. The plaintiff eventually hired another contractor who finished the work for $7,500.00.

When questioned as to why the work was not successfully completed, the defendant stated in his testimony, “I underbid the job and then with all the changes, it was impossible. It was impossible for me to finish.” The defendant’s helper and brother-in-law, Walter Jackson, Sr., described the defendant’s work as raggedy and “to tell you the truth, we never completed nothing. There wasn’t nothing there completed.” Jackson also indicated that Livingston suggested changes on the job whenever Livingston needed extra money.

The issue on appeal is factual. Did the defendant perform the contract as originally confected and subsequently modified by the parties? The preponderance of the evidence indicates, and the trial judge so found, that the defendant did not perform the contract as the parties had agreed. The evidence shows that the defendant’s work was deficient in many ways and that the plaintiff had to pay $7,500.00 to correct the deficiencies. The trial court’s decision casting the defendant for this amount is supported by the preponderance of the evidence in the record. We therefore affirm the trial court decision in its totality. The plaintiff’s claim on appeal for additional damages is not supported by the record in this case. That claim is thus rejected.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The defendant will bear the costs of this appeal.

AFFIRMED.