author: SHORTESS, Judge.

text:
    Vernon H. JONES v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 14751.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.
    A. Wayne Stewart, Denham Springs, for plaintiff.
    Robert J. Vandaworker, Baton Rouge, for defendants.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

This damage suit brought by Vernon H. Jones (plaintiff) was based upon an accident which occurred on September 12,1978, in Livingston Parish when the end joint of plaintiff’s left middle finger was cut off by the revolving flywheel mechanism of a hay baler he and his brother Troy Jones were attempting to repair. The only defendants are Troy Jones and Southern Farm Bureau Casualty Insurance Company. Plaintiff’s case was tried to a jury which returned a verdict in his favor for $15,625.00, and defendants have perfected this suspensive appeal.

Four specifications of error are urged by appellants: (1) the jury erred in finding Troy Jones negligent; (2) it erred in finding Vernon Jones free from negligence, and alternatively contributory negligence; (3) the court erred in failing to direct a verdict in favor of defendants; and (4) the jury erred in awarding plaintiff an excessive amount. We feel that the first specification of error is dispositive of the case.

The facts developed at trial indicate that plaintiff and defendant were both retired and lived on adjoining property; that they saw each other nearly every day; that appellant owned a New Holland hay baler whose knotting mechanism malfunctioned; that plaintiff was familiar with his brother’s hay baler and had helped repair and operate it on past occasions; that on the day in question as the brothers attempted to diagnose the problem, plaintiff suggested that defendant go to the other end of the machine while he manually turned the flywheel; that plaintiff was turning the flywheel with his right hand, but unfortunately placed his left hand inside the open pitt-man arm area, and the end of his left middle finger was cut off as the flywheel revolved in its normal motion; that this area was normally protected by a guard or hood which covered the pittman assembly but the guard had been raised by defendant to facilitate seeing the moving parts; that at the time of the accident defendant was about five or six feet away from plaintiff at the knotter; that defendant could not see where plaintiff had placed his left hand and did nothing to activate any moving parts on the baler; that plaintiff was the only one moving the parts at the time his finger was injured; that at the time of the accident plaintiff was looking right at the opening and could or should have seen the flywheel as it revolved.

Plaintiff testified that he volunteered to help his brother on this occasion; that as his brother went to the knotter at the other end of the machine, he voluntarily began moving the flywheel; that he was not certain how many revolutions the flywheel made prior to the accident; and that he placed his entire left hand inside the opening. Plaintiff admitted that the flywheel was in view during the whole operation but that he did not notice it at the time. He also admitted that he was not looking exactly where his hand was and at what was going to happen to it at the time; that he had turned the flywheel on prior occasions but in most of those cases the hood was down. Plaintiff admitted, “I don’t think that my brother had done nothing wrong.” . The thrust of plaintiff’s case is that defendant was guilty of negligence in failing to warn him of the dangerous propensity of the hay baler, and in particular, about the raised guard that normally prohibits access to the pittman assembly. Plaintiff was as familiar with the hay baler and its operation as was his brother. He had performed on previous occasions the same task he was performing on the day in question. Plaintiff simply put his left hand down into the opening where he had never placed it before and then was in a position to watch the pittman arm revolve toward his hand and cut off the end of his finger. Defendant was at the other end of the baler and could not see what plaintiff had done with his left hand. Under the provisions of Civil Code Art. 2315, the burden of proof was on plaintiff to affirmatively show that his brother was guilty of fault which caused damage to him. He failed to do so and the findings by the jury that defendant was negligent were without any factual basis and were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered herein dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.

      . The manufacturer of the hay baler was not joined as a defendant.


source: Caselaw Access Project

author: LOTTINGER, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Ellis A. TERREBONNE, Edith T. Rodrigue and Georgina D. Terrebonne v. SOUTH LOUISIANA TIDAL WATER CONTROL LEVEE DISTRICT.
    No. 14753.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Stanley L. Perry, Galliano, for plaintiffs-appellants Ellis A. Terrebonne, et al.
    Harwell Herrin, Golden Meadow, Jerald Block, Thibodaux, J. J. Erny, Larose, for defendant-appellee South Louisiana Tidal Water Control Levee Dist.
    Michael 0. Hesse, Baton Rouge, amicus curiae.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is a suit for a declaratory judgment. The plaintiffs, Ellis A. Terrebonne, Georgina D. Terrebonne, and Edith T. Rodrigue, sought judgment declaring invalid an appropriation of land owned by plaintiffs by the defendant South Louisiana Tidal Water Control Levee District (hereinafter “Levee District.”) The Levee District defended the suit, claiming that plaintiffs’ lands were properly appropriated under La.C.C. art. 665. Following trial on the merits, the trial court upheld appropriation under La.C.C. art. 665. The plaintiffs have appealed.

The suit for declaratory judgment arose when the defendant Levee District, by resolution of November 4, 1975, appropriated two tracts of land in Lafourche Parish in Sections 23 and 24 of Township 19 South, Range 21 East, measuring 6.52 acres and 1.18 acres respectively, and owned by the Estate of Uylesses J. Terrebonne. The appropriations were made for the right-of-way for a hurricane protection levee constructed as part of the Larose to Golden Meadow Hurricane Protection System. The levee built across plaintiffs’ land was part of a ring levee system constructed for flood control of lands along the lower section of Bayou Lafourche in Lafourche Parish.

The inhabited areas near Bayou La-fourche in Lafourche Parish are generally low lying areas subject to flooding during periods of heavy rainfall or high tides. The Bayou Lafourche area is in extreme south central Louisiana and is often the target for hurricanes and lesser tropical storms coming from the Gulf of Mexico. Tropical storms have caused severe flooding in the Larose-Golden Meadow area, especially within the town of Golden Meadow. Flooding occurs whenever Bayou Lafourche overflows its banks, ánd also may occur when storms cause tidal surges of high water from the Gulf and its bays to cross open marshlands and flow into inhabited areas. The ring levee system was designed to prevent flooding from Bayou Lafourche and to prevent flooding caused by tidal surges of backwater from the marshlands.

The ring levee system used in the Larose to Golden Meadow Hurricane Protection Project will be composed of levees and floodgates. Floodgates will be constructed in Bayou Lafourche itself at the north end of the project in Larose and at the project’s south end two miles below Golden Meadow. The floodgates will close during periods of high tides, restricting the flow of water up Bayou Lafourche from the Gulf. A “ring” of levees will be constructed around the entire populated area, preventing water from entering from across the marshlands. The levees and floodgates are designed to work in unison to prevent flooding from all sources.

Thus the ring type levee is unusual in that it does not lie immediately adjacent to any water body. To serve its purposes, the ring levee is situated some distance from a river or stream. In the area of the plaintiffs’ property, the protection levee lies parallel to Bayou Lafourche, at or near the traditional Forty Arpent Line. This means that across plaintiffs’ lands, the protection levee runs approximately 7,234 feet west of the bayou.

Subsequent to the appropriation of the two tracts in question, the defendant Levee District tendered the previous year’s assessment value of the property pursuant to the provisions of Louisiana Constitution of 1974, Art. XIY, § 32 and Louisiana constitution of 1921, Art. XVI, § 6, in the sum of $24.87 as full compensation to the plaintiffs. Louisiana Constitution of 1974, Art. XIV, § 32 provides that the provisions of Louisiana Constitution of 1921, Art. XVI, § 6 shall be continued in effect as a statute subject to and until changed by the legislature. Louisiana Constitution of 1921, Art. XVI, § 6 sets the measure of compensation for the taking of lands for levee purposes at a price not to exceed the assessment value of the property for the preceding year. The plaintiffs sent back the tender and filed the instant action for a declaratory judgment that the appropriation was invalid.

The plaintiffs alleged in their original petition that the two tracts appropriated were not subject to the public servitude of La.C.C. art. 665, and that the appropriation was made without due process of law and without the payment of just compensation. Plaintiffs further alleged that La.C.C. art. 665 was unconstitutionally vague in not permitting a landowner to accurately determine the precise location of the levee servitude. The plaintiffs also alleged that they were denied equal protection of the law in that they were tendered assessment value only for their property while other similarly situated landowners were paid full market value for rights-of-way by the Levee District.

The defendant Levee District answered with a general denial, and urged that La. C.C. art. 665 applied to the tracts in question. The Levee District reserved in the alternative the right to expropriate the necessary rights-of-way.

Plaintiffs then supplemented and amended their petition to assert a cause of action for fair market value under La.R.S. 38:281, as amended by Act 314 of 1978. The Levee District filed the dilatory exception of vagueness, which was overruled. The defendant then answered with a general denial and in the alternative alleged the unconstitutionality of Act 314 of 1978. In accordance with La.C.C.P. art. 1880, the Levee District caused the Louisiana Attorney General to be cited and served with all pleadings, so as to be heard with regard to the alleged unconstitutionality of Act 314 of 1978.

The Attorney General submitted a memorandum on the issue, arguing that the benefit of fair market value afforded by Act 314 of 1978 to pending suits was retracted by Act 676 of 1979, that both acts were reme•dial in nature, and that both could be applied retroactively without unconstitutionally impairing vested rights.

The trial court ruled in favor of the defendant Levee District, dismissing plaintiffs’ suit at their cost. The trial court held that La.C.C. art. 665 was not unconstitutionally vague and that the article did apply to the two tracts in question. The trial court also held that plaintiffs failed to prove their claim of unfair discrimination and denial of equal protection of the law. The trial court further held that the benefit of fair market value in pending suits afforded by Act 314 of 1978 was effectively abated by Act 676 of 1979, citing Dripps v. Dripps, 366 So.2d 544 (La.1978). Plaintiffs moved timely for a devolutive appeal to this court.

SPECIFICATIONS OF ERROR

Plaintiffs-appellants have assigned numerous specifications of error, which can be crystallized into three main arguments on appeal:

1)The trial court committed error by applying the La.C.C. art. 665 riparian servitude to uphold appropriation of tracts forty árpente distant from a navigable river or stream.
2) The trial court committed error in refusing to find discriminatory treatment by the Levee District, and in refusing to allow introduction of evidence tending to show preferential treatment of other landowners whose property was similarly situated to that of plaintiffs.
3) The trial court committed error in holding that the benefit of full market value in pending suite afforded by Act 314 of 1978 was effectively retracted by Act 676 of 1979.

I

Plaintiffs-appellants argue that the tracts appropriated by the Levee District are not subject to the riparian servitude. They assert that the applicable jurisprudence demonstrates that the requirements for appropriation under La.C.C. art. 665 are not present under the factual circumstances surrounding this controversy.

Louisiana Civil Code Article 665 reads: “Servitudes imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and.for the making and repairing of levees, roads and other public or common works.
“All that relates to this kind of servitude is determined by laws or particular regulations.”

The constitutionality of Article 665 was upheld in Eldridge v. Trezevant, et al., 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896), where the United States Supreme Court held that the article was not violative of due process or equal protection of the law as long as it was administered impartially.

Article 665 provides a servitude in favor of the public upon lands adjacent to navigable rivers and streams for the construction and maintenance of levees. Article 665 has received varying interpretations in our jurisprudence. At one time the power to appropriate was considered to be extremely broad. In Board of Commissioners of Tensas Basin Levee District v. Franklin, 219 La. 859, 54 So.2d 125 (1951), appeal dismissed per curiam, 342 U.S. 844, 72 S.Ct. 80, 96 L.Ed. 638 (1951), the Louisiana Supreme Court upheld appropriation of land that was seventeen miles away from the nearest navigable stream. The Supreme Court therein held that the riparian servitude applied not only to property adjoining the river bed, but to all property needed for levees within the range of reasonable necessities of the situation as produced by the forces of nature, unaided by artificial causes.

The scope of Article 665 was narrowed in Delaune v. Board of Commissioners for the Ponchartrain Levee District, 230 La. 117, 87 So.2d 749 (1956). In Delaune, the Supreme Court held that the property appropriated in addition to being “within the range of the reasonable necessities of the situation,” Franklin, supra, must also have been riparian property when it was separated from the public domain. The burden of proving the riparian character of the land as a prerequisite to acquiring the servitude falls upon the appropriating body. Board of Commissioners of the Pontchartrain Levee District v. Baron, 236 La. 846, 109 So.2d 441 (1959); Taylor v. Board of Levee Commissioners of Tensas Basin Levee District, 332 So.2d 495 (La.App. 3rd Cir. 1976).

In A. K. Roy, Inc. v. Board of Commissioners for the Pontchartrain Levee District, 237 La. 541, 111 So.2d 765 (1959), the tract of land for which appropriation was sought was part of a tract which was riparian to the Mississippi River when separated from the public domain. However, the levee to be built was for the purpose of preventing flooding from Lake Pontchartrain. The Louisiana Supreme Court stated:

“It would appear from the pleadings and argument and briefs of counsel in this court that the principal question urged in the lower court, other than the one just disposed of, was the effect of our recent decision in the case of Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749, on the facts of the case at bar. “Defendant has failed to meet the test enunciated in that case. Although it is conceded by plaintiff that the property was part of a large tract, which, at the time of its. severance from the public domain, bordered the Mississippi River, there was no showing that the purpose for which the property was taken had any relation whatsoever to control of the flood waters of the Mississippi River ‘within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes.’ ” (Emphasis supplied). Ill So.2d 767.

We agree with our brethren of the Second and Third Circuits that A. K. Roy, Inc., supra, requires that the levee must be necessary for the control of flood waters from the river or stream to which the land is riparian. See Stevenson v. Board of Levee Commissioners of Tensas Basin Levee District, 353 So.2d 459 (La.App. 3rd Cir. 1977), writ ref., 355 So.2d 266 (La.1978); Taylor v. Board of Levee Commissioners of Tensas Basin Levee District, supra; Grayson v. Commissioners of Bossier Levee District, 229 So.2d 139 (La.App. 2nd Cir. 1969). See also United Gas Pipeline Company v. Lafourche Parish Police Jury, 338 F.Supp. 1296 (E.D.La.1972) for a similar interpretation of A. K. Roy, Inc., supra, by the federal court in New Orleans. We are of the opinion that the requirement that the levee operate to control flood waters from the river or stream to which it is riparian is an inevitable corollary of the “reasonable necessities” requirement of Delame and Franklin, supra.

Applying the requirements of A. K. Roy, Inc., supra to the case at bar, we find that the Levee District proved the riparian nature of the tracts in question. The Levee District introduced into evidence a certified copy of a survey map of Township 19 South, Range 21 East of the South Eastern District of Louisiana, drawn by federal deputy surveyors during the winter of 1831 and approved by the surveyor’s office in Washington D. C. on January 14, 1882. The survey map shows that Section 23 and 24 of Township 19 South, Range 21 East, within which lie the two tracts which are the subject of this suit, lie immediately adjacent to Bayou Lafourche. The Levee District introduced expert testimony to the effect that the lower section of Bayou Lafourche is navigable and has been considered navigable since 1803, when the area formed a part of the Louisiana Purchase from France by the United States. The Levee District further introduced a certified copy of an excerpt from the United States Tract Book Records, showing a transfer of Sections 23 and 24 to the State of Louisiana, effective August 1,1854. Finally, the Levee District introduced a certified copy of an excerpt from the Louisiana State Tract Book Records showing a sale of the entirety of Sections 23 and 24 to private individuals on June 10,1857, and March 5,1861 respectively. We hold that this evidence proves conclusively that the two tracts in question were part of larger tracts which were riparian at the time they were separated from the public domain.

The greatest amount of testimony in the trial court centered around the second and third requirements of A. K. Roy, Inc., supra, for appropriation under Article 665, that is, whether the tracts taken are within the range of reasonable necessities to prevent flooding from the river or stream to which they are riparian. The plaintiffs elicited lay testimony to the effect that the new protection levee near the area of the plaintiffs’ property runs generally along the same line as a prior levee owned by the Lafourche Parish Police Jury. The police jury levee was a small levee erected primarily for the purpose of land reclamation. The plaintiffs introduced testimony that the old police jury levee had fractured many times under pressure from high tides of the marshlands to the west, causing intensive flooding of pasture lands. It is the plaintiffs’ claim that the protection levee located forty arpents or 7,234 feet from Bayou La-fourche is intended primarily to control backwater flooding over the marshes, and is not intended or expected to prevent Bayou Lafourche from overflowing its banks. The plaintiffs adduced testimony that flooding from the west covered a larger area and presented a greater danger to plaintiffs’ property than did flooding from Bayou La-fourche. Flooding from the west has spilled over and through the police jury levee and advanced to within nine hundred feet of Bayou Lafourche, or some 6,000 feet from the Forty Arpent Line. On the other hand, at the plaintiffs’ property, somewhat north of the town limits of Golden Meadow, overflow from Bayou Lafourche has been limited to an area less than one hundred fifty feet from the banks. Plaintiff Ellis A. Terrebonne testified that water from Bayou Lafourche has covered Louisiana Highway One in front of his home, and has encroached upon his front lawn, but has never threatened to flood his house, which fronts the highway. The plaintiffs contend that the tracts appropriated at the Forty Arpent Line were taken to build a levee which protects from backwater flooding. Thus, plaintiffs claim that since the protection levee will not protect from flooding from the river or stream to which the tracts are riparian, Civil Code art. 665 does not apply, and appropriation at assessment value was invalid.

The defendant Levee District introduced testimony to the effect that the town of Golden Meadow had completely flooded during hurricanes, necessitating total evacuation of the town. Water has gone into homes quite a distance from Bayou La-fourche. The flooding during hurricane season in Golden Meadow came from Bayou Lafourche, and not from tidal surges from the west. A seawall was constructed in Golden Meadow along Bayou Lafourche in 1974, which has not totally ameliorated the problem of flooding from the bayou. Louisiana Highway One at times had been closed as far north as the Galliano bridge because waters from the bayou inundated the road. The Levee District pointed out that this closure included the highway in front of plaintiffs’ homes. The Levee District contends that the ring levee system used in conjunction with flood gates in Bayou Lafourche will prevent flooding from the bayou and also from across the marshlands. The defendant asserts that the entire system of levee protection should be considered a working unit, which as a whole will prevent flooding from the river or stream to which plaintiffs’ lands are riparian.

The preponderance of the expert testimony weighs in favor of the defendant Levee District. Cecil Soileau, an expert in hydrology and hurricane project planning and coastal engineering, testified at trial. Mr. Soileau is also a civil engineer with the U. S. Army Corps of Engineers and has studied extensively the effects of hurricane tidal surges. It was his expert testimony that a theoretical hurricane hitting Timbalier Bay west of Bayou Lafourche would cause two tidal surges. The first surge would travel up Bayou Lafourche from the Gulf, taking the bayou as the path of the least resistance. The effects of this surge would be felt quickly up and down the bayou. A second tidal surge from Timbalier Bay to the west would come later, after the surge up the bayou. This western surge would cover a greater area and necessarily would carry more water. The western surge would help mask the surge of water up Bayou Lafourche, but would also threaten populated areas on the west bank of the bayou, where plaintiffs’ property is situated. Mr. Soileau testified that the ring levee system would protect the population from both surges of the theoretical hurricane. The project was designed to safeguard the area from flooding from any direction.

Mr. Soileau was cross-examined thoroughly as to the relative functions of the protection levee and the floodgates in the bayou. He testified that shutting the floodgates in the bayou was the method of preventing Bayou Lafourche from overflowing its banks. However, Mr. Soileau testified that without the connecting ring levee, water from the bayou would build up at the floodgate area, flow over the bank of the bayou, find a path around the gates, and return to the bayou to continue upstream. It was Mr. Soileau’s expert testimony that without the complete enclosure of the area by the ring of levees, water from the bayou would find a way to return to the bayou after being turned away by the floodgates. In light of this expert testimony, we are convinced the trial judge was correct in holding that the ring levee was necessary to prevent flooding from Bayou Lafourche. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Because the lands taken were necessary to prevent flooding from the stream to which they are riparian, appropriation by the Levee District at the assessed value was proper under La.C.C. art. 665. A. K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, supra.

Plaintiffs-appellants cite Stevenson v. Board of Levee Commissioners, supra, writ ref., 355 So.2d 266 (La.1978) as being very similar to the instant case. In Stevenson, the plaintiffs were owners of tracts which were appropriated in connection with the construction of a ring levee around the city of Jonesville in Catahoula Parish, which city is located at the intersection of Little River and Black River. The Third Circuit upheld judgment of the trial court granting plaintiffs fair market value of the land taken, because evidence demonstrated that the ring levee was constructed solely to prevent flooding from backwaters forming the normal drainage of the area. The court found that the ring levee was not built to hold either of the navigable rivers within their banks, and denied the riparian servitude on that basis, citing A. K. Roy, Inc., supra.

The instant case is readily distinguishable from Stevenson, supra. In Stevenson, the two rivers in question already had levees on their banks prior to construction of the ring levee around the populated area. The existence of the levees on the banks of the navigable rivers was clearly for protecting from the overflow of the rivers. Thus, there could be no contention in Stevenson, supra, that the ring levee was in any way intended to hold the navigable rivers in their banks. In the case sub judice, levees cannot be built along the banks of Bayou Lafourche. Expert testimony was adduced to show that the ring levee would serve to help protect the area from the overflow of Bayou Lafourche, in that the levee would prevent water building up at the flood gates from diverting around the gates and returning to the bayou to flow upstream. We hold that Stevenson, supra, is not controlling of the case sub judice.

For the above and foregoing reasons, the plaintiffs’ contention that the jurisprudential requirements for applying La.C.C: art. 665 are not present under the facts of this case is without merit.

II

Plaintiffs-appellants assert that they have been denied equal protection of the law because the Levee District has taken their land by appropriation while paying full market value to other landowners similarly situated.

In connection with this assertion, plaintiffs attempted to introduce into evidence several acts of sale, whereby the Levee District purchased rights-of-way for the protection levee from other landowners in the area. The plaintiffs also attempted to introduce rights-of-way maps drawn by the Levee District to show the location of the tracts mentioned in the sales of rights-of-way. In this fashion the plaintiffs attempted to show that the Levee District had paid fair market value to other similarly situated landowners. However, the trial court refused to allow this evidence to be introduced, on the basis of the evidence’s irrelevancy to the issues in dispute. Plaintiffs put forth this evidence in a proffer of proof.

After having examined plaintiffs’ proffer, we hold that the evidence was correctly excluded by the trial court. There was no evidence adduced by the plaintiff that any of the tracts sold for fair market value by other landowners to the Levee District were riparian in nature. The copies of rights-of-way maps proffered to show the locations of these tracts could not have proven the riparian character of these tracts because the rights-of-way maps are not surveyed and do not even show the path of Bayou Lafourche across the map in many places. (Nor were the copies proffered certified.) Because the rights-of-way maps proffered are not surveyed, they cannot be used to determine the riparian character of the tracts shown therein. The tracts in question are within a different township than the tracts owned by plaintiff, so plaintiffs cannot benefit from the subsequent introduction of the surveyed map of Township 19 South, Range 21 East into evidence, which the defendant used to prove the riparian nature of plaintiffs’ lands. Because there was no proof that the tracts mentioned in plaintiffs’ proffer were riparian, the evidence was properly excluded as not relevant.

The lack of evidence of the riparian character of these other tracts also precludes showing that preferential treatment was accorded to similarly situated landowners. Thus, plaintiffs’ equal protection claim is without merit.

hi

Plaintiffs-appellants assert that they have a viable cause of action for full market value under La.R.S. 38:281 as amended by Act 314 of 1978, and that the trial court erred in holding same abated by Act 676 of 1979.

In 1978, by Act 314, the legislature amended La.R.S. 38:281 to set the measure of compensation for the taking of lands for levee purposes at the fair market value. Section B thereof further provided as follows:

“The compensation defined herein shall apply to all lands and improvements taken, damaged or destroyed for levee and levee drainage purposes after the effective date of this Act, and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.” (Emphasis supplied).

In 1979, the legislature again amended La.R.S. 38:281 this time deleting, among other parts, the italized portion of Act 314 to provide as follows:

“The compensation defined herein shall apply to all lands and improvements appropriated, used, or damaged for levees and levee drainage purposes after the effective date of this Act, and to lands appropriated, used, or damaged for levees and levee drainage purposes after July 10, 1978.”

The plaintiffs contend that Act 314 of 1978 expressly set out firm substantive rights in their favor, inasmuch as their suit was filed April 25,1977, and was pending as of July 10, 1978. Thus, they argue that to apply Act 676 of 1979 retrospectively so as to retract the substantive rights granted by Act 314 of 1978, was an impairment of vested rights violative of La.C.C. art. 8 and Art. I, § 23 of the Louisiana Constitution of 1974.

The Louisiana Supreme Court in Ardoin v. Hartford Accident and Indemnity Company, 360 So.2d 1331 (La.1978) held that the general principle of non-retroactivity as stated by La.C.C. art. 8 was subject to three exceptions: laws that merely suppress or lessen penalties, laws that are merely interpretive of existing legislation, and laws that the legislature has expressly or impliedly declared to be retroactive. According to the interpretation of the court in Ardoin and cases cited therein, Article 8 of the Civil Code contemplates substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention.

Act 314 of 1978 mandated the payment of fair market value in situations where lands and improvements were actually used or destroyed for levees. Article XIV, § 32 of the 1974 Constitution continued as a statute the payment of assessed value for lands used or destroyed for levee purposes until such time as the legislature enacted a law to effectuate Art. VI, § 42. Article VI, § 42 allowed the legislature to provide by law the payment for lands destroyed or used for levee purposes. Act 314 of 1978 was the legislature’s attempt to effectuate Article VI, § 42, by providing full market value to landowners. As such, Act 314 of 1978 does establish substantive rights. However, we hold that the retroactive effect of Act 314 of 1978 on pending suits in expropriation or appropriation cases is not a substantive right, but rather is a procedural device concerned with application of the act itself, rather than the substantive rights granted therein. To hold that the retroactive effect of Act 314 on pending appropriation suits is a substantive right rather than a procedural matter would mean that Act 314 might attempt to create substantive rights based on matters which occurred pri- or to the effective date of the Constitution, which would itself be violative of Article XIV, Section 26. In other words, if the retroactive application of Act 314 to pending appropriation suits is deemed a substantive matter, Act 314 might be unconstitutional in purporting to create substantive rights based on events occurring prior to the Constitution’s effective date, violating Article XIV, Section 26. However, because Act 314 of 1978 applies the substantive provisions of the act to pending appropriation suits, we hold that this retroactivity provision is procedural in nature.

The possibility of an unconstitutional interpretation of La.R.S. 38:281 as amended by Act 314 of 1978 was the impetus behind the legislature’s passage of Act 676 of 1979. This is evidenced by the title of the 1979 legislation, which preceded Act 676 and noted in part:

“WHEREAS, the Legislature of Louisiana enacted Act 314 of 1978 which contained provisions which were vague and indefinite particularly with respect to its retroactive application and with respect to lands used or destroyed for levees and levee drainage purposes for which fair market value must be paid; and ...”

In light of this language, we hold that Act 676 of 1979, which deleted the provision relating to pending appropriation suits, is interpretive legislation which does not create new rules, but merely establishes the meaning which Act 314 of 1978 had from the time of its enactment. As noted in Ardoin, supra, this interpretive legislation is accorded retrospective effect unless it operates to disturb already vested rights.

We have already ruled, however, that the portion of Act 314 directing the application of substantive portions of the act to pending appropriation suits is procedural in nature. As such, this part of Act 314 does not create vested rights for claimants whose appropriation suits are pending as of July 10, 1978. This position is buttressed by State v. Standard Oil Company of Louisiana, 188 La. 978, 178 So. 601 (1937), wherein it was stated that there is no vested right to a particular remedy, and that a statute is not unconstitutional merely because it changes, abolishes, or impairs an existing remedy for a cause of action which has accrued prior to the passage of the statute. We therefore hold that the retro-activity portion of Act 314 did not create any vested right to fair market value as a remedy in pending appropriation suits. For this reason, there is no constitutional obstacle to the retroactive application of Act 676 of 1979.

Act 676 of 1979 deleted that part of La.R.S. 38:281 which provided for retroactive application of the substantive provisions of Act 314 of 1978 to appropriation suits pending as of July 10, 1978. According to Dripps v. Dripps, 366 So.2d 544 (La.1978), if the law on which a judicial proceeding is founded is repealed, or superced-ed and in effect repealed, by a statute enacted while the proceeding is pending in court, then the proceeding is thereby abated. Act 676 of 1979 superceded and in effect repealed that portion of Act 314 of 1978 which related to pending appropriation suits. Act 676 of 1979 was approved by the Governor on July 18, 1979, and its effective date was September 7, 1979. Plaintiffs’ suit was still pending as of the effective date of Act 676. Therefore, we hold that plaintiffs’ claim for fair market value under Act 314 of 1978 was effectively abated by the passage and promulgation of Act 676 of 1979 during the pendency of the suit, and that the trial court was correct in so holding.

Therefore, for the above and foregoing reasons, the judgment of the trial court in favor of the defendant South Louisiana Tidal Water Control Levee District is hereby affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The majority says that Act 314 of 1978 established substantive rights, but then holds that the retroactive effect of Act 314 on pending suits in expropriation or appropriation cases is not a substantive right, but rather is a procedural device concerned with application of the act itself rather than the substantive rights granted therein. Act 314 by its express language gave plaintiffs the right to seek full market value for their land, because their suit was pending on July 10, 1978. This right was substantive in nature and not remedial or procedural. Act 676 of 1979 could not take away that substantive right.

Plaintiffs’ suit was filed April 25, 1977, long after the effective date of the 1974 Constitution. Art. XIV, § 26, of the 1974 Constitution has not been violated.

Plaintiffs’ damages should be measured in accordance with the provisions of Act 314 of 1978, rather than the provisions of the Louisiana Constitution of 1974, Art. XIV, § 32 and the Louisiana Constitution of 1921, Art. XVI, § 6.

      . By Act 225 of 1978, the Legislature changed the name of the defendant to “South Lafourche Levee District.” This name change occurred while the instant suit was pending.

      . Uylesses J. Terrebonne died in 1962. Plaintiff Georgina Duet Terrebonne is his surviving spouse and owns an undivided one-half interest in the two tracts. Plaintiffs Ellis A. Terrebonne and Edith T. Rodrigue are the children and surviving heirs of Uylesses J. Terrebonne, and each owns an undivided one-fourth interest in the two tracts.

      . Within the ring levee, lateral levees will also be constructed to limit any possible flooding to one isolated area.

      . Construction of a levee on the batture of Bayou Lafourche in this area is not possible because of the proximity of the bayou to all the roads, houses, and businesses in the area.

      . The plaintiffs also prayed for judgment granting them full market value for the two tracts. The trial court ruled that under La.C.C.P. art. 1871 and the applicable jurisprudence, the suit for declaratory judgment could not be combined with a claim for fair market value. Plaintiffs have not assigned as error this ruling, nor has the issue been briefed or argued.

      . Act 314 of 1978 reads:
      “AN ACT
      “To amend and reenact Section 281 of Title 38 of the Louisiana Revised Statutes of 1950, relative to levees and levee drainage, to provide for measure of compensation for land and improvements, Orleans Parish excepted, actually used, damaged or destroyed for levees or levee drainage purposes, and otherwise to provide with respect thereto.
      “Be it enacted by the Legislature of Louisiana:
      “Section 1. Section 281 of Title 38 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows:
      “§ 281. Construction and maintenance of levees and levee drainage; measure of compensation; recreational functions; filling of vacancies
      “A. The levee boards of this state, Orleans Parish excepted, may construct and maintain levees, levee drainage, and do all other things incidental thereto. The levee boards may do all drainage work incidental to or made necessary by the construction of the levee system in this or adjoining states.
      “B. All lands and improvements, Orleans Parish excepted, hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for fair market value to the full extent of the loss, and just compensation for both the land and improvements taken or destroyed and for damages suffered by reason thereof, shall be paid to the owner or into the court for his benefit.
      “The measure of compensation for lands and improvements taken or destroyed for levee and levee drainage purposes shall be the fair market value of the property taken or destroyed before the proposed taking of the property or construction of the levee or the levee drainage facilities, without considering any change in value caused by the construction of the levee or the levee drainage facilities. The measure of damages, if any, to the remaining property of the owner by reason of the taking or destruction of a portion of his property is determined on a basis of immediately before and immediately after the taking, destruction, or the construction of the levee or the levee drainage facilities, taking into consideration the effects of the completion of the project in the manner proposed or planned.
      “The owner shall be compensated as provided in this Act only when and to the extent that the Legislature, the levee board or the Federal government appropriates the funds therefor.
      “The compensation defined herein shall apply to all lands and improvements taken, damaged or destroyed for levee and levee drainage purposes after the effective date of this Act, and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.
      “Compensation for property taken for other than levee and drainage purposes shall be as provided by the constitution and laws of the state for property expropriated or appropriated for a public purpose, provided that the owner shall be compensated to the full extent of his loss.
      “C. The levee boards of this state, within their respective territorial jurisdictions, may perform recreational functions and use therefor any funds made available to them for such purpose. Within the authority granted in this Subsection and incident thereto, the boards may develop, operate and maintain recreational areas and for such purposes may acquire land by purchase, donation or lease and may construct, operate and repair buildings, ramps, marinas and other facilities and equipment common to a recreational area. The authority of the boards to operate such recreational areas includes the authority to lease facilities therein to others for operation on such terms and conditions, consistent with the public interest therein and use thereof, as the boards may determine. The boards, in the exercise of the authority conferred by this Subsection, may enter into agreements with any other political subdivision or any state or federal agency and may accept funds and grants from such subdivisions and agencies. Other political subdivisions of the state and state agencies shall cooperate with the boards with respect to the exercise of the boards’ authority under this Subsection. The authority granted in this Subsection does not include, and shall not be construed to include, development of subdivisions or the building and selling of houses.
      “D. Notwithstanding any law to the contrary, every vacancy now, or hereafter created, whether by reason of death, resignation, expiration of term, or any other cause, occurring in any levee district shall be filled by the governor from panels of names submitted as follows: each member of the house of representatives representing a parish or part of a parish lying within a levee district shall submit one name for each vacancy to be filled from the parish which he represents in the legislature, within said levee district and each member of the Senate shall submit one name for each vacancy to be filled from the parish or parishes which he represents in the legislature, within said levee district. In making appointments the governor shall not appoint any person to the board of commissioners to represent a specific parish who was not recommended by one or more of the legislators who represent that specific parish in the legislature.
      “All members of the boards of commissioners of levee districts shall serve at the pleasure of the governor.
      “The provisions of this Subsection apply to all boards of commissioners of all levee boards.
      “Section 2. This Act shall become effective upon the signature of the governor, or if not signed by the governor, upon the expiration of the time for bills to become law without signature by the governor, as provided in Article III, Section 18 of the Louisiana Constitution of 1974.
      “Section 3. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.
      “Section 4. All laws or parts of laws in conflict herewith are hereby repealed.”

      . Act 676 of 1979 reads:
      “AN ACT
      “To amend and reenact Subsections A and B of Section 281 of Title 38 of the Louisiana Revised Statutes of 1950 relative to levees and levee drainage; to provide for the construction and maintenance of levees; to provide for the measure of compensation for land and improvements actually used or destroyed for levees or levee drainage purposes; to provide for the areas in which the Act shall apply, to provide for land or property to which the Act shall not apply; and otherwise to provide with respect thereto.
      “WHEREAS, the Legislature of Louisiana enacted Act 314 of 1978 which contained provisions which were vague and indefinite particularly with respect to its retroactive application and with respect to lands used or destroyed for levees and levee drainage purposes for which fair market value must be paid; and
      “WHEREAS, these provisions should be clarified in order to set forth clearly the intention of the Legislature of Louisiana in enacting said statute; therefore:
      “Be it enacted by the Legislature of Louisiana:
      “Section 1. Subsections A and B of Section 281 of Title 38 of the Louisiana Revised Statutes of 1950 are hereby amended and reenacted to read as follows:
      “§ 281. Construction and maintenance of levees and levee drainage; measure of compensation; recreational functions; filling vacancies
      “A. The levee boards of this state may construct and maintain levees, levee drainage, and do all other things incidental thereto. The levee boards may do all drainage work incidental to or made necessary by the construction of the levee system in this or adjoining states.
      “B. All lands and improvements hereafter actually used, damaged or destroyed for levees or levee drainage purposes shall be paid for at fair market value to the full extent of the loss.
      “The measure of compensation for lands and improvements taken or destroyed for levees and levee drainage purposes shall be the fair market value of the property taken or destroyed before the proposed use of the property or construction of the levee or the levee drainage facilities, without considering any change in value caused by the construction of the levee or the levee drainage facilities. The measure of damages, if any, to the remaining property of the owner by reason of the use or destruction of a portion of the property is determined on a basis of immediately before and immediately after the use or destruction of the property for levee drainage construction taking into consideration the effects of the completion of the project in the manner proposed or planned.
      “The owner shall be compensated as provided in this Subsection only when and if, in its discretion the Louisiana Legislature, the levee board or the federal government appropriates the funds therefor.
      “The compensation defined herein shall apply to all lands and improvements appropriated, used or damaged for levees and levee drainage purposes after the effective date of this Act, and to lands appropriated, used or damaged for levees and levee drainage purposes after July 10, 1978.
      “However, nothing contained in this Subsection shall apply to batture or to property, the control of which is vested in the state or any political subdivision for the purpose of commerce.
      “ ‘Batture’ as used in this Section shall have the same meaning as that term was defined by the courts of this state as of the effective date of the Louisiana Constitution of 1974.
      “Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severa-ble.
      “Section 3. All laws or parts of laws in conflict herewith are hereby repealed.”

      . A proper method of proving the riparian character of lands that are not immediately adjacent to a navigable river or stream is to trace the title to the original grant at the time the property was separated from the public domain. Dickson v. Board of Commissioners of Caddo Levee District, 210 La. 121, 26 So.2d 474, 476 (1946). This method of proof was followed by the Levee District vis-a-vis the tracts belonging to plaintiffs.

      . Pursuant to Article III, Section 19 of 1974 Constitution, which states that all laws shall take effect sixty days after the adjournment of the legislature unless specifically provided for otherwise. The 1979 Regular Session adjourned July 9, 1979.

      . See footnote 1.


author: EDWARDS, Judge.

text:
    John Wendell PRATER v. The BABCOCK AND WILCOX COMPANY, Randy Thornton, James Millican, Arlie Henry, Dudley Grantham and Walter Bradley.
    No. 14756.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.
    James J. Zito, Baton Rouge, for plaintiff-appellant John Wendell Prater.
    A. Michael Dufilho, Baton Rouge, for defendant-appellee The Babcock & Wilcox Co., et al.
    Vincent P. Fornias, Baton Rouge, for defendants-appellees Randy Thornton, James Millican, Arlie Henry, Dudley Grantham and Walter Bradley.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, John Wendell Prater, instituted this tort action to recover damages for personal injuries which he allegedly suffered while repairing a salt mixing tank owned and operated by his employer. Named as defendants were the Babcock and Wilcox Company, manufacturer of the mixing tank, and a number of co-employees of the plaintiff. Paragraph 15 of plaintiff’s petition made the following allegations with respect to the liability of these co-employees:

“15

Petitioner alleges that the proximate causes of the accident described above and damages suffered were the negligence and/or intentional act of the following supervisors and/or executive officers of Georgia Pacific Corporation:

A) Randy Thornton, superintendent of the steam department;
B) James Millican, superintendent, steam department;
C) Arlie Henry, shift supervisor;
D) Dudley Grantham, plant manager; and
E) Walter Bradley, safety supervisor, all of whom had full and intimate knowledge of the unsafe condition of said salt cake mixing tank recovery unit and boiler area and the task to be performed by petitioner, itemized particularly but not exclusively, in the following respects:
A) Negligently failing to control the flow of steam and liquid through the pipes of the salt cake mixing tank which caused petitioner’s injuries complained herein;
B) Failing to warn petitioner of the danger of sudden flash fires or explosion of the gases in the salt cake mixing tank;
C) Failing to inspect and take proper safety measures to protect petitioner from said such (sic) explosions;
D) Failing to see that proper safety rules were adopted, promogated (sic) and endorced (sic);
E) Failure to properly utilize the existing safety procedures to protect the petitioner;
F) Failing to approve the manner, equipment and methods used in performing the work where hazards were involved; and
G) Failing to see that petitioner and other employees work in a proper, safe and workmanlike manner and that they were given a proper and safe place to perform their work.”

The defendant co-employees filed a motion for summary judgment based on the tort immunity provided to co-employees by the workmen compensation laws. In support of the motion, each defendant co-employee filed an affidavit avowing that insofar as his alleged involvement in the accident was concerned, he had no desire to injure Prater in any way, nor did he believe that the accident sued upon was substantially certain to result from any action on his part.

The trial court granted summary judgment on behalf of the co-employee defendants and dismissed plaintiff’s suit as to them. Plaintiff has appealed, contending that the motion for summary judgment was improperly granted.

Motions for summary judgment are authorized by LSA-C.C.P. art. 966. That article provides as follows:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

LSA-R.S. 23:1032 provides that an injured employee’s right to workmen compensation benefits precludes the right to recover from, among others, his co-employees. An exception to this immunity, however, is created in the event of an intentional act. In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Louisiana Supreme Court clarified the construction and interpretation of the “intentional act” exception to co-employee immunity from civil liability:

“For these reasons, we construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” 397 So.2d at 482.

Defendants’ affidavits showed that their alleged involvement in plaintiff’s accident did not come within the scope of the intentional act exception. In brief, counsel for plaintiff concedes that these affidavits, if uncontradicted, would have removed defendants from the “intentional act” exception and would have entitled them to summary judgment as a matter of law. However, plaintiff alleges that these affidavits were not uncontested because they were countered by plaintiff’s own affidavit submitted in opposition to the motion for summary judgment. Plaintiff represents that his affidavit alleged that defendants had full knowledge of the unsafe nature of the task to be performed by plaintiff and that the accident was caused by their intentional acts in placing plaintiff in a known dangerous situation.

Plaintiff’s affidavit does not appear in the record. Therefore, we need not consider whether it would have had the effect of creating a genuine issue as to material fact and of defeating defendants’ right to a summary judgment. Trial court judgments are presumed to be correct and items of evidence missing from the record are presumed to support the judgment of the trial court. Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1st Cir. 1981); DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir. 1980); United Pentecostal Church v. Interstate Surplus, 368 So.2d 1104 (La.App. 2nd Cir. 1979).

The only affidavits which appear in the record are those of defendants. As counsel for plaintiff has admitted, they establish plaintiff’s right to a summary judgment. Plaintiff’s affidavit is not in the record and this court cannot review what is not before it.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be paid by plaintiff.

AFFIRMED.


author: CARTER, Judge:

text:
    COSMAR, INC., et al v. WATERWORKS DISTRICT NO. 2 OF the PARISH OF IBERVILLE, Louisiana and the Parish of Iberville.
    No. 14649.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    Rehearing Denied June 21, 1982.
    Writ Granted July 27,1982.

      Victor A. Sachse, III, Claude F. Reynaud, Jr., of Brezeale, Sachse & Wilson, Baton Rouge, for Cosmar, Inc., American Petrofi-na, Inc., Borg Warner Corp., and Carville Properties, Inc.
    Houston C. Gascon, III, Asst. Dist. Atty., Plaquemine, for Police Jury of the Parish of Iberville.
    J. Hugh Martin of Foley, Judell, Beck, Bewley & Martin, New Orleans, for Bd. of Com’rs of Water Works Dist. No. 2 Parish of Iberville, La.
    William L. Kimball, Port Allen, for Water Works Dist. No. 2, of the Parish of Iberville.
    G. William Jarman, Richard A. Curry, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for Allied Chemical Corp. and Ciba-Giegy Corp.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

This appeal is from a trial court’s decision to sustain the defendant-appellees’ peremptory exception of no right and no cause of action. We affirm.

On November 4, 1980, in a bond election, the following proposition was approved by the voters of Iberville Parish:

“Shall Waterworks District No. 2 of the Parish of Iberville, Louisiana, incur debt and issue bonds to the amount of One Million Five Hundred Thousand Dollars ($1,500,000), to run twenty-five (25) years from date thereof, with interest at a rate not exceeding nine per centum (9%) per annum, for the purpose of constructing and acquiring improvements to continue the existing waterworks services now being provided therein, including additions to the water treatment plant and enlargements of water storage facilities, together with all necessary facilities in public, which bonds will be general obligations of ad valorem taxes to be levied and collected in the manner provided by Article VI, Section 33 óf the Constitution of the State of Louisiana of 1974, and statutory authority supplemental thereof?”

The plaintiffs-appellants, Cosmar, Incorporated, American Petrofina, Incorporated, Borg Warner Corporation, and Carville Properties, Inc. are property owners in an industrial area in Iberville Parish established by the Police Jury of that parish pursuant to the provisions of La.R.S. 33:130.11 et seq. They filed suit under La. R.S. 18:1294 against Waterworks District No. 2 of the Parish of Iberville and the Parish of Iberville within sixty days of the promulgation of the results of the election. Appellants objected to certain language in the resolution of the Police Jury calling the election which approves the levy of an ad valorem tax on all property within the Waterworks District. They claim that they are exempt by law from this tax. Thus, they claim, “the tax to support the bonds, and therefore the bond issue itself, dependent upon such tax, will be illegal.” Appellants concluded their petition with a prayer that “the bond issued provided for in the described resolution, and bond issue proposition, be declared illegal, or that alternatively the lands of petitioners within the Industrial Area be declared free of any increased ad valorem tax which may come to be levied by or for the District as a result thereof.”

To this petition, the defendants, appellees here, filed a peremptory exception of no right and no cause of action. They argued that because appellants did not follow the proper mandatory procedure to contest a bond issue, as set out in La.R.S. 13:5121 to 13:5130, that appellants were forever barred from attacking the validity of the bonds by La.Const. art. VI, Section 35(A). The trial court maintained the exception.

Appellants particularly rely on the .case of Audubon Insurance Co. v. Parish of East Baton Rouge, 366 So.2d 972 (La.App. 1st Cir, 1978). In that case, the Parish of East Baton Rouge held an election in which two propositions were passed by the voters to levy taxes to fund garbage collections. Plaintiff paid the tax under protest and filed suit for its return under La.R.S. 47:2110. The defendants, Parish of East Baton Rouge and the Parish Council of the Parish of East Baton Rouge, filed a peremptory exception of prescription under La. Const, art. 6, Sec. 35(A) and La.R.S. 39:513 (now La.R.S. 18:1294).

La.R.S. 47:2110 provides in pertinent part as follows:

“A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per centum per annum for the period from the date such funds were received by the officer to the date of such refund.”

La.R.S. 18:1294 provides:

“For sixty days after promulgation of the results of an election held under this Chapter to incur debt, issue bonds, levy or increase a tax or assume debt, any person in interest may contest the legality of the election, the bond issue provided for, the tax authorized, or the assumption of indebtedness for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters.”

This court resolved the apparent procedural conflict between La.R.S. 47:2110 and La.R.S. 39:513 (La.R.S. 18:1284) by concluding that the former was intended to apply to those taxes levied under authority granted the state or political subdivision by the legislature or by the constitution. Since there was no mention in La.R.S. 47:2110.of a tax authorized by an election, the court found a distinction. The tax in Audubon was authorized by an election, so the applicable peremptive period was that provided in La.R.S. 18:1294.

The obvious distinction between Audubon and the present case is that the tax in Audubon was authorized by an election, whereas the tax in this case was mandated by the constitution to support the bonds. The proposition submitted to the voters specified that the bonds would be general obligations of ad valorem taxes to be levied and collected in the manner provided by La.Const. art. YI, sec. 33. That provision reads as follows:

“(A) Authorization. Subject to approval by the State Bond Commission or its successor, general obligation bonds may be issued only after authorization by a majority of the electors voting on the proposition at an election in the political subdivision issuing the bonds. Bonds to refund outstanding indebtedness at the same or at a lower effective rate of interest, even though payable solely from ad valorem taxes, need not be authorized at an election if the indebtedness refunded is paid or cancelled at the time of the delivery of the refunding bonds, or if money, or securities made eligible for such purpose by law, are deposited in escrow in an adequate amount, with interest, to be utilized solely to retire the refunded indebtedness or bonds and to pay interest thereon and redemption premiums, if any, to the time of retirement.
“(B). Full Faith and Credit. The full faith and credit of a political subdivision is hereby pledged to the payment of general obligation bonds issued by it under this constitution or the statute or proceedings pursuant to which they are issued. The governing authority of the issuing political subdivision shall levy and collect or cause to be levied and collected on all taxable property in the political subdivision ad valorem taxes sufficient to pay principal and interest and redemption premiums, if any, on such bonds as they mature.”

Audubon is relevant to the present case (specifically to appellants’ alternative prayer to be free of any increased ad valorem tax) to the extent that it specifies the procedure to be followed by any person resisting the payment of any amount of ad valo-rem tax found due when that tax is imposed by the state, or by any political subdivision thereof under authority granted to it by the legislature or by the constitution. Audubon is not, however, authority for the proposition that La.R.S. 18:1294 is the proper procedure to contest the validity of a bond proposition.

The proper procedure to contest a bond issue is that set out in La.R.S. 13:5121-5130. These provisions are contained in Part XVI, Chapter 32, Title 13, Louisiana Revised Statute of 1950, as amended, and are entitled “Suits to Determine Validity of Governmental Bonds.” The legislature has recognized the unique nature of bonds and the importance of insuring their marketability and has thus provided a method to expedite all proceedings which involve the validity of the bonds. This legislative intent is revealed in La.R.S. 13:5122:

“All suits, actions and proceedings of whatever nature affecting the validity of bonds of a governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds shall be brought only in accordance with the provisions of this Title. These provisions shall supersede all other acts and statutes on the subject and be controlling in all such cases notwithstanding the provisions of any other law or charter to the contrary; provided, however, nothing herein contained shall affect, change, alter or modify in any way any peremptive or prescriptive period for the contesting of bonds of governmental units or elections authorizing their issuance, established pursuant to the constitution and statutes of this state which shall continue to govern the time within which actions covered thereby may be filed. It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to bonds is necessary to insure the marketability of bonds in investment channels. It is not the intention of the legislature to require or to encourage the validation of all bonds by the judiciary.”

Other sections in Part XVI set forth the mandatory procedure to be followed. By not following these procedures, appellants failed to place at issue the validity of the bond proposition and are thus barred from later doing so by the peremptive period of La.Const. art. 6, Sec. 35(A). Lege v. Vermilion Parish School Bd., 360 So.2d 664 (La. App. 3d Cir. 1978).

For the above reasons, the trial court’s judgment maintaining the exception of no cause of action is affirmed. The costs, both of trial and appeal, are to be paid by plaintiffs-appellants.

AFFIRMED.


author: PONDER, Judge.

text:
    Jimmy W. WHEAT v. FORD, BACON AND DAVIS CONSTRUCTION CORP., et al.
    No. 82 CA 0105.
    Court of Appeal of Louisiana, First Circuit.
    May 11, 1982.
    Donald Fendlason, Bogalusa, for plaintiff.
    Iddo Pittman, Jr., Hammond, for defendant-appellant.
    John W. Anthony & R. Bradley Lewis, Bogalusa, for defendants H. L. Richardson & Commercial Union Ins. Co.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

The motion to dismiss the appeal of this workmen’s compensation case arose from the following circumstances.

Plaintiff claimed that he was initially injured while employed by Ford, Bacon & Davis Construction Corporation, insured by Aetna Casualty and Surety Company. He further claimed that his condition was aggravated while employed by H. L. Richardson, d/b/a H & L Construction Company, insured by Commercial Union Insurance Company. He alleged solidary liability of the two sets of defendants.

On November 13, 1981, judgment was signed easting the first employer and its insurer for partial disability and dismissing the claim against the second employer and its insurer. Notices of judgment were sent on November 17. By motion filed on November 23, the first employer and insurer asked for a new trial. This motion was denied on December 2 without hearing. Notice of the denial was sent on January 4, 1982. The first employer and its insurer filed a petition for suspensive appeal on January 6, 1982. The order was signed on January 11, 1982 and appeal bond was filed on January 26. The record was lodged on February 16, 1982. Plaintiff filed an answer to the appeal on February 23, 1982, asking for relief against both sets of defendants. In brief, the first employer asserts that the second employer should be liable. The second employer and insurer filed a motion to dismiss the appeal and the answer to the appeal insofar as they relate to the movers.

The motion to dismiss the appeal is denied. An appeal by a defendant cast in judgment brings a codefendant responsible in solido'if at all, before the appellate court even though no third party demand has been filed. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Smith v. Girley, 242 So.2d 32 (1st Cir. 1970), modified 260 La. 223, 255 So.2d 748 (1971); Roy v. Edmonson, 221 So.2d 583 (4th Cir. 1969).

The motion to dismiss the answer to the appeal insofar as it attempts to secure relief against the second employer and its insurer is granted. An answer to an appeal is effective only as to an appellant. American Insurance Company v. Holland, 401 So.2d 421 (1st Cir. 1981); Ogaard v. Wiley, 325 So.2d 642 (3d Cir. 1975); Smith v. Girley, supra.

Motion to dismiss appeal denied. Motion to dismiss answer to appeal granted only insofar as it seeks relief as to H. L. Richardson d/b/a H & L Construction Company and Commercial Insurance Company.

      . The first employer and its insurer had filed a request for notice of any order or judgment on March 25, 1980.


author: GULOTTA, Judge.

text:
    Vincent TIMPHONY v. LOUISIANA STATE RACING COMMISSION.
    No. 12915.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    G. Michael Grosz, III, Gretna, for plaintiff-appellant.
    William J. Guste, Jr., John E. Jackson, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Because appellant has neither filed a brief, made an appearance nor manifested any intention whatsoever to prosecute this appeal prior to the time the case was called for scheduled argument on April 6, 1982, we, pursuant to Rule VII, Section 5(b) ex proprio motu dismiss the appeal as abandoned. Costs to be paid by appellant.

APPEAL DISMISSED.


author: BOUTALL, Judge.

text:
    Joseph M. COSTELLO, III v. Emile J. SPALITTA.
    No. 5-13.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Charles E. McHale, Jr., New Orleans, for Emile J. Spalitta, defendant-appellant.
    Matthew A. Wellman of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Joseph M. Costello, III, plaintiff-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This case involves the interpretation of a release given by a landlord to his tenant upon mutual cancellation of a lease.

Emile J. Spalitta leased a portion of a building from its owner, Albert J. Ortte, who subsequently sold the building to petitioner, Joseph M. Costello. The lease was for a term of five years with renewal privileges and contained a clause providing that at the expiration of the lease the lessee shall return the building to its original configuration as it existed prior to the execution of the lease, at the expense of the lessee. Spalitta was operating a training school for hairstylists, etc., and had made a number of plumbing installations as well as partition changes in order to accommodate his business. Most of these installations were of value only to people engaged in that type of operation. The basic question presented in this suit is who shall bear the costs of restoring the building to its prior condition.

After Costello purchased the building it became known to him that Spalitta was interested in buying a building in which to move his operation, and the parties began negotiations with the aim of reaching a mutually beneficial result: Spalitta’s obligations under the lease would be cancelled and he would move into a premises which he would own and his erstwhile rental payments would provide equity in his building; Costello would be able to lease the premises he owned to other tenants at a higher rental. As a result of these negotiations it was decided that the lease should be cancelled and in connection therewith Costello sent to Spalitta a letter dated July 24, 1979, in which he stated:

“This letter will serve to verify that if you desire to vacate the premises of 4539 1-10 Service Road during the course of your lease, that I have no desire to pursue the matter other than that you give me at least 60 days notice of the date you intend to leave, and that you pay me the rent due through the last day of the month that you leave.”

It is this letter which forms the crux of the disagreement between the parties. Costello is suing Spalitta for the expense of replacing the building in its original condition under the terms of the lease. Spalitta defends contending that the letter quoted above was a release of all claims under the lease, including these expenses, and thus he owes nothing. To this Costello rejoins that the letter was not the entire agreement between the parties; that the parties had already agreed upon the cancellation of the lease and Spalitta had agreed to undertake the repairs; that this letter was sent to Spalitta at his specific request, that he needed a written agreement stating that he would not be called upon to pay continuing rentals to show others to aid the completion of his credit transactions in purchasing his new building.

There is a direct conflict between the testimony of the parties on these points and the trial judge noted that he believed Costello and his witnesses and disbelieved Spal-itta’s account of the matter. The trial judge noted that the testimony of plaintiff and his witnesses were supported by the actions taken by the parties, especially the fact that Spalitta began making the agreed upon repairs to the premises, and that work was stopped as a result of some problem in obtaining the continued services of the plumbing contractor.

When there is evidence before the trial judge which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial judge’s finding, on review we should not disturb these findings in the absence of manifest error, or, unless they are clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). In this case, we cannot say that the trial court is in error in its finding. Accordingly, we find that the document was not given to be a complete resolution of the matters at issue between the parties, but was given only for the specific limited purpose of absolution from payment of future rentals in order to assist the defendant with his credit negotiations. It does not cover the issue of restitution of the building to its original condition, and defendant-lessee is still responsible for those expenses.

For the foregoing reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Veda M. Sinclair, wife of/and Floyd A. SINCLAIR, and Pamela S. Ward, wife of/and Thomas J. Ward v. William M. JUSTICE, Jr., Clerk of Court and Waguespack & Associates, Inc.
    No. 5-9.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      Robert G. Creely, Amato & Creely, Gret-na, for Veda M. Sinclair, wife of/and Floyd A. Sinclair and Pamela S. Ward, wife of/and Thomas J. Ward, plaintiffs-appel-lees.
    Jacob Kansas, New Orleans, for Wagues-pack & Associates, Inc., defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

The owners of immovable property sue to remove and cancel a recorded affidavit of lien and privilege against their immovable property under the Private Works Law. The trial judge ordered cancellation and the contractor appeals.

Mr. and Mrs. Floyd A. Sinclair and Mr. and Mrs. Thomas J. Ward were the owners of certain immovable property in the Parish of Jefferson on which they began to build a small shopping center. In the course of that development they entered into a lease with Peter DiMartino for three units of the building, the term commencing August 1, 1978. The agreement between plaintiffs and DiMartino was that plaintiffs would construct the shell of the proposed three units with certain specifications therein conforming to DiMartino’s proposed use as a restaurant and pizza parlor and that DiMartino would complete the basic construction into a finished restaurant for his use and occupancy. It was originally considered between the parties that plaintiffs had the opportunity to contract with DiMartino for the completion of the leasehold improvements, but negotiations broke down and the parties did not arrive at an agreement. Subsequently DiMartino contracted with Waguespack and Associates, Inc., for the completion of the building shell subject to several items which DiMartino agreed to perform himself.

A dispute arose between DiMartino and Waguespack & Associates, Inc., over the execution and completion of their contract resulting in Waguespack & Associates, Inc., filing an affidavit of lien and privilege under the Private Works Statutes, L.S.A.-R.S. 9:4801, et seq., recorded against the immovable property owned by the plaintiffs. The written agreement between Wagues-pack and DiMartino was never recorded. Plaintiffs then filed a suit to cancel and erase the recordation of the affidavit against their property.

The main basis upon which the suit was tried was whether or not Waguespack & Associates, Inc., was acting as a general contractor and therefore under requirement to record its written contract in order to enforce any privileges against the property, See L.S.A.-R.S. 9:4802, or whether Wag-uespack was a sub-contractor whose lien and privilege would arise under the provisions of R.S. 9:4812.

The trial judge considered the evidence and concluded that Waguespack & Associates, Inc., was a general contractor in the project it undertook to complete, relying upon the principles set forth in the case of Executive House Building, Inc., v. Demarest, 248 So.2d 405 (La.App. 4th Cir. 1971). In that case we set out the basis upon which a determination could be made as to whether an undertaker was a “contractor” or a “sub-contractor”. After considering the evidence the trial judge reached a reasonable conclusion that Wag-uespack was a contractor and we cannot say that he is manifestly erroneous or clearly wrong, although other triers of fact may have reached a different conclusion. However, we do not base our conclusion solely on this premise.

We point out that the privilege granted to contractors in R.S. 9:4801 is granted to those contractors with whom the owner or his agent contracts. It is apparent from the evidence that the owner and Waguespack & Associates, Inc., not only did not contract with each other, but were in fact competing with each other for this particular construction. The contract was solely and entirely with the lessee, Peter DiMartino, for the completion of the leasehold improvements, which were the obligation of DiMartino and not the owner. The work thus comes under the provisions of R.S. 9:4811 which sets out the lien and privilege rights of those doing work for a contracting party other than the owners, in this case a lessee. The privileges which arise from such work shall operate only upon whatever right the lessee may have and shall not interfere with the owner’s rights. Under the facts of this case, no privilege can be assessed upon the property of an owner. See Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (La.1962); Holsomback v. Jett, 260 So.2d 24 (La.App. 3rd Cir. 1972); Abbeville Lumber Company v. Richard, 350 So.2d 1292 (La.App. 3rd Cir. 1977); and McCulley v. Dublin Construction Company, 234 So.2d 257 (La.App. 4th Cir. 1970). See for comparison Roman v. Zuppardo, 407 So.2d 65 (La.App. 4th Cir. 1981).

We affirm the judgment ordering the cancellation of the affidavits filed by Wag-uespack & Associates, Inc., on July 13,1979, inscribed in Mortgage Office Book 771, folio 655, Parish of Jefferson. All costs are assessed against appellant.

AFFIRMED.

      . The contracts and the work done took place in 1978 and 1979, before the revision and renumbering of the Private Works Sections by Act No. 724 of 1981.


text:
    Robert H. and Elenor Sue ZELENKO, d/b/a Thirsty’s Lounge v. PARISH OF JEFFERSON, et al.
    No. 5-6.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      John F. Tooley, Jr., Gretna, for Robert H. & Elenor Sue Zelenko, d/b/a Thirsty’s Lounge, plaintiff-appellant.
    H. A. Yondenstein, Parish Atty., and Robert H. Fray, Asst. Parish Atty., Gretna, for Parish of Jefferson, et al., defendant-appellee.
    Before' BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

Robert H. and Elenor Sue Zelenko sued the Parish of Jefferson, those officials involved in issuance of alcoholic beverage permits, and their landlord seeking an injunction to issue enjoining them from interfering with their operation as a lounge, a mandamus ordering the issuance of an alcoholic beverage permit, and damages. The trial court refused to issue injunction or mandamus, and they have appealed. The only issue before us is the propriety of the actions of the public officials in refusing to grant an alcoholic beverage permit.

It is the contention of the appellants that they had obtained the necessary permits and approval for the operation of their lounge, but that the Parish has refused to grant the permanent license. One of the requirements imposed upon the applicant for an alcoholic beverage permit by parish ordinance is that the premises cannot be within two hundred feet from any residential district measured along the nearest pedestrian walkway from the entrance to the residential district line. Ordinance No. 13658 as amended November 15, 1978. It is plaintiffs’ contention that their premises were very close to the limitation and they sought the assistance of the Regulatory Division of the Parish of Jefferson, whose employee informed them that they were only two feet short of the necessary two hundred feet and that the same could be waived dependent upon approval of the nearest residential property owner. Acting on that advice, the appellants sought and obtained a temporary permit, and began extensive remodelling of the premises so they could begin operation. Their application for the regular permit was denied by the Jefferson Parish Council, causing this suit.

As to the facts, it was stipulated that the lounge is within the prohibited distance, and other evidence shows that the distance measured- in accordance with the ordinance is actually one hundred seven feet two inches. Clearly appellants’ premises come within the prohibited distance and under the ordinance, the Parish Council was correct in denying the permit.

Appellants argue, however, that the Council is estopped from denying the permit because it had already issued a temporary permit and they, acting upon that approval, expended a considerable sum of money to begin their operation. Resolution No. 40031 granting the temporary alcoholic beverage permit was conditioned upon the provision that all Parish requirements are met before the Parish Attorney sends out the permit. As noted above, the requirements were never met. This situation is entirely unlike the facts presented to the court in the case of Dunn v. Parish of Jefferson, 256 So.2d 664 (La.App. 4th Cir. 1972). That case involved a waiver of certain requirements of the comprehensive zoning ordinance before a building permit could be issued. In that case the Parish made an investigation and determined that it as a property owner could waive the requirements and the permit was granted. We held that the Parish could not withdraw its consent after the permit had been acted upon. The present case does not involve any such formal waiver, indeed it is not even shown that a waiver is possible under the terms of this ordinance. Instead the temporary permit was conditioned upon meeting all requirements. The principles announced in Dunn are not applicable here.

Appellants’ last contention is that the law is unevenly enforced, and that there are a number of premises throughout the parish which are in violation of the ordinance. We agree with the finding of the trial judge that the evidence that was furnished was insufficient to show that there was such a system of discriminate enforcement as to render the ordinance null. It is obvious from the evidence that there was considerable confusion amongst the parish officials as to how the measurement of the two hundred feet should be accomplished. We note the evidence presented us shows that in September, 1978, the ordinance was amended to show a completely different measurement. We do not comment upon the wisdom of the November, 1978, amendment in achieving the desired purpose of the ordinance. Suffice it to say that the method of measurement is clear.

There are several other issues raised such as mootness and the ability to obtain mandamus, but in view of our disposition above, we find no need to comment upon those issues.

The judgment is affirmed at appellants’ cost.

AFFIRMED.


author: GARRISON, Judge.

text:
    In the Matter of Cheryl Gaudio CORTINEZ v. Carlos CORTINEZ.
    No. 12118.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Charles C. Garretson, New Orleans, for plaintiff-appellant.

      McCloskey, Dennery, Page & Hennesy, Mitchell J. Hoffman and Clifford J. Enten, New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting to plaintiff the amount of $200.00 per month as alimony pendente lite. From that judgment, which we affirm, plaintiff appeals, seeking $400.00 per month.

Plaintiff-appellant is a 30-year old female. She is presently attending Tulane University, working on her Master’s degree in film. She had no income at the time of the hearing, although some time before she had worked part-time at night. She testified that she had to quit working at night because she could not keep up with her school work. She testified at the hearing (October, 1980) that she expected to graduate in May, 1981. She submitted expenses totaling $1,140.00 per month. She decided not to ask for permanent alimony after divorce.

Defendant, a Tulane Spanish Literature Professor, is a Chilean national who expects to leave the country very shortly. He has a net income of $1,173.75 per month and submitted an expense list of $1,370.00 per month. When the couple separated, there was a joint checking account balance of $5,000.00 which the defendant spent. Defendant has four children, all over the age of majority, living throughout the world. He is presently living in open concubinage.

On appeal, defendant argues that plaintiff is not entitled to any alimony pendente lite, citing Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir., 1980).

The Smith case, however, has been severely repudiated. Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2nd Cir., 1980). Smith was decided after the old Article 148 was declared unconstitutional but before the new Article 148 was enacted. This case falls under the new Article 148. In Arren-dell, above, the court stated:

“The purpose of alimony pendente lite is to temporarily, pending litigation, provide for the spouse who does not have sufficient income for his or her maintenance. Alimony pendente lite is ordinarily determined initially by summary proceedings within a few days after litigation is commenced. The award is usually effective from the date suit is filed. In a sense, it is designed to preserve and continue the status quo insofar as maintenance and support are concerned. It relates to facts as they have existed during the time the parties were living together and as they actually exist at the time the litigation commences, not to future possibilities and capabilities. Where one spouse is employed and has income and the other is not employed and has no income, the employed spouse is required to continue to provide for the maintenance of the unemployed spouse in this temporary situation. Where the spouses themselves have, during the marriage, assigned the role of wage earner to one and the role of homemaker to the other, fairness and practicality dictate that the wage earner spouse continue that role during the temporary period of litigation and adjustment. If both spouses are employed, then the income of both is to be taken into consideration. If neither is employed, then perhaps respective earning capabilities should be considered. Earning capability might be considered where a spouse has been regularly employed during the marriage but happens not to be employed at the very moment of trial of the alimony rule, and has the capability of securing employment immediately.” (at 930-931)

Defendant also argues that plaintiff’s parents should support her and are financially capable of lending that support. We find that it would be a most ill-founded action for this court to rule that the parents of major children are responsible for their financial support in cases of separation. While the court is aware that the above concept of parental support is found in some Islamic legal systems, notably Egypt, this concept has never been part of the civil law of Louisiana. Additionally, it directly violates the Louisiana concept of spousal support. We shall not belabor this unwarranted issue any further.

On appeal, plaintiff argues that the alimony award should have been $400.00 a month. This is not an unreasonable amount and is in line with contemporary existing jurisprudence. The standard of review, however, is:

“Even if the reviewing court considers the award to be low (as we do in this case) the award should not be disturbed unless it is so low as to constitute an abuse of discretion.” Meyer v. Meyer, 371 So.2d 1304, 1305 (La.App. 4th Cir., 1979).

In Meyer, this court upheld an award of alimony pendente lite of $200.00 per month plus the house note of $147.36, or $347.36 (plus $400.00 child support) where the husband’s net income was $1,450.00. In Meyer, this court stated that the amount awarded was low but deferred to the trial judge’s discretion. In the instant appeal, we cannot conclude that the trial judge abused his discretion, even though we find, as in Meyer, that the amount awarded is low.

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

AFFIRMED.

      . Although defendant is the appellee in this case, he filed an answer to the appeal, asserting that appellant is not entitled to any alimony pendente lite.


text:
    GRIMALDI PLUMBING & HEATING COMPANY, INC. v. Alvin DOUCETTE.
    No. 12184.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.

      George R. Simno, III, New Orleans, for plaintiff-appellant.
    Usry, Leefe, Weeks & Roniger, Richard K. Leefe, and Guy L. Leefe, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting plaintiff damages in the amount of $2,600.00, plus legal interest from the date of judicial demand and costs. From that judgment, plaintiff has appealed, arguing that the trial court erred in failing to award $5,310.33.

Alvin Doucette was building a house at 3322 N. Johnson Street. The house in question was Doucette’s private project and not affiliated with his employment as a construction supervisor for a general contractor, Gay Leefe. Nonetheless, when Leefe asked Doucette to discharge Blue Line Plumbing from the Johnson Street job because certain problems had developed between Leefe and Blue Line, Doucette complied. At this time, the plumbing construction was roughly Vs completed and Doucette had paid Blue Line approximately 50% of their bill for the job, or about $1,400.00. Doucette told Leefe that he needed a plumber to complete the job. Leefe contacted a representative of Grimaldi and set up a meeting attended by the three of them. Grimaldi agreed to finish the plumbing job for Doucette. Although both Leefe and Doucette asked Grimaldi for a price on a number of occasions, the response was always “Don’t worry, we’ll take care of you.” When the job was finished, Grimaldi presented a bill for $5,310.33 to Doucette. Doucette contested the amount of the bill, agreed to pay $4,000.00 and then stopped payment on the cheek. This litigation ensued.

It is well settled that where there is a contract without fixed price the price is determined as that which is reasonable in light of community custom and equity between the parties. C.C.Art.1903, 1965; Lee v. National Cylinder Gas Co., 58 So.2d 568 (La.App. 4th Cir., 1952); Gilly v. Henry, 8 Mart. (O.S.) 402 (La., 1820); 1 J. Domat, The Civil Law in Its Natural Order, 169-70 (W. Strahan transí. L. Cushing ed., 1853).

At trial, Doucette’s expert, Donald Ziegler, testified that Grimaldi’s bill was both unreasonable and excessive in light of current costs in the residential construction area. Grimaldi, who is a commercial contractor, testified that they have not done residential construction since 1957 and that they used union labor at higher labor costs rather than the non-union labor normally used in residential construction. Grimaldi further testified that their bill was formulated as follows:

1. Their cost of materials, plus 30%.
2. Total labor costs per manhour of laborers, apprentices, journeymen, plus all fringes, plus 20-30% override on all manhours fixed as the construction supervisor’s labor costs.
3. Numbers 1 and 2 above are totaled; then, 15% of the total is added on as overhead.
4. 10% to 20% is then added on top of the total of Number 3 as profit.

Mr. Ziegler further téstified that Grimal-di’s invoices showed orders for types of supplies that could not possibly have been used in this job, excessive supplies, excessive numbers of men on site and an excessive number of hours. The expert further testified as to what he estimated the cost of the job would be as $3,161.42. The trial judge, concluding that the job was Vs completed at the time that Grimaldi took over, awarded roughly % of this amount, plus a little over $400.00 to Grimaldi for any additional problems they encountered in taking over from another plumber.

On appeal, we cannot conclude that the trial judge was either manifestly erroneous under Canter v. Koehring Co., 283 So.2d 716 (La., 1973), abused his discretion under Arceneaux v. Dominguez, 365 So.2d 1330 (La., 1978), or ascribed to an erroneous interpretation of law.

The trial judge provided that legal interest run from the date of judicial demand instead of from the date of final judgment. As this is a case in which the claim is unliquidated until such time as judgment is rendered, legal interest runs only from the date of the judgment. Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (La., 1949); Liwerant v. Elwin Corp., 206 So.2d 766 (La.App. 4th Cir., 1968).

For the reasons discussed, the judgment of the district court is amended as follows, and, as amended) is affirmed:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Grimaldi Plumbing & Heating Co., Inc., and against defendant, Alvin Doucette, in the full sum of $2,600.00, together with legal interest thereon from March 13, 1980 until paid, and for all costs of these proceedings.

AMENDED AND AFFIRMED.

      . The 30% markup was not charged against Mr. Doucette.

      . There is testimony that some of the fixtures needed to be redone.