author: CULPEPPER, Judge. LABORDE, Judge,

text:
    Johannas Justus EICKE, Plaintiff and Appellant, v. Elizabeth Larue EICKE, Defendant and Appellee.
    No. 8135.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Nelson, Hammons & Johnson, John L. Hammons, Shreveport, for plaintiff and appellant.
    Sanders & Castete, Herman Castete and Martin S. Sanders, Jr., Winnfield, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

This is a child custody case. The plaintiff father appeals from a judgment denying recognition of that portion of a Texas divorce decree which áwards the father custody of the two children at issue. In a previous Louisiana judgment of separation from bed and board, custody had been awarded to the mother. We conclude that under the Uniform Child Custody Jurisdiction Act, adopted by Louisiana in 1978, the trial judge correctly refused to recognize the Texas custody decree.

The facts are that plaintiff and defendant were married in Alaska during 1974. They later moved to Texas, where the two children, now ages two years and four years respectively, were born. In about 1978, the mother and father and the two children moved to Louisiana for a short time. In April of 1979 the entire family moved back to Texas. On August 9, 1979, the mother left the father in Texas and moved with the children to LaSalle Parish, Louisiana, where they have since lived near her mother. On October 26, 1979, the mother filed suit in LaSalle Parish for separation from bed and board and for custody of the children. An attorney was appointed to represent the absent husband, who was in Texas. On December 14, 1979, the district court for LaSalle Parish rendered judgment granting the mother a separation and custody of the children.

On June 18, 1960, the father obtained from the district of Lubbock County, Texas a judgment granting him a divorce and custody of the two children, who were then still residing with their mother in Louisiana. The mother had been served with notice of the Texas proceedings but made no personal appearance therein.

On July 17, 1980, the father filed the present suit in LaSalle Parish, Louisiana for recognition of the Texas divorce and custody decree. The mother answered, alleging the father’s Texas divorce and custody decree were invalid for lack of jurisdiction in the Texas court. Moreover, as to the Texas custody decree, the mother alleged it was invalid because of the prior Louisiana decree granting her custody.

The district court rendered judgment recognizing the Texas divorce but refusing to recognize the Texas custody decree. The trial judge reasoned that the Uniform Child Custody Jurisdiction Act, which was adopted by Louisiana in 1978 but has not been adopted in Texas, has changed the prior Louisiana jurisprudence regarding recognition of foreign custody decrees. We agree.

Prior to the adoption by Louisiana of the Uniform Child Custody Jurisdiction Act, our jurisprudence had established the rule that a judgment of divorce, whether rendered in this state or in a foreign state with jurisdiction, abates a prior judgment of separation in this state and all matters incidental thereto including custody decrees. Fountain v. Fountain, 365 So.2d 1139 (La.App. 3rd Cir. 1978); Webster v. Webster, 308 So.2d 302 (La.App. 1st Cir. 1975); Hill v. Hill, 304 So.2d 922 (La.App. 1st Cir. 1974); Emery v. Emery, 223 So.2d 680 (La.App. 4th Cir. 1969). Jurisprudence had also established the rule that a divorce decree and a custody decree incidental thereto rendered in a sister state with jurisdiction is entitled to full faith and credit in Louisiana. Fountain v. Fountain, supra; Webster v. Webster, supra; Hill v. Hill, supra; and Emery v. Emery, supra.

If these jurisprudential rules are still controlling, the district judge in the present case erred in not recognizing the Texas custody decree, since the record clearly shows the Texas court had jurisdiction of the custody of the children under the Texas law. Counsel for the father cited in his brief provisions of the Texas Family Code Annotated, Sec. 11.051, which states that Texas has jurisdiction of custody disputes where the child was conceived in Texas or the person on whom service is required has resided in Texas with the child. Also cited is Butler v. Butler, 577 S.W.2d 501 (Ct. of Civ.App. of Tex.1978) which holds that where Texas was the last matrimonial domicile between the parents and suit was commenced within two years after co-habitation in Texas ended, the minimum contacts necessary for Texas jurisdiction under its long-arm statutes are satisfied. Thus, Texas had jurisdiction under its laws. Likewise, there is no question that the Louisiana court had jurisdiction under its laws to render the judgment of separation and custody decree in 1979. The mother was then domiciled in Louisiana and the children lived with her.

Under the jurisprudential rules stated above, the Texas custody decree is entitled to recognition unless these rules were changed by the Uniform Child Custody Jurisdiction Act. The precise issue presented is whether, under the Uniform Act, Louisiana is required to recognize án out-of-state custody decree rendered in a divorce proceedings, where the foreign custody decree is in conflict with a custody decree rendered in previous separation proceedings in Louisiana. We find no Louisiana case addressing this particular question. However, in the recent case of Revere v. Revere, 389 So.2d 1277 (La.1980), our Supreme Court explained the purposes of the Uniform Child Custody Jurisdiction Act. In Revere, the matrimonial domicile was in Louisiana. The mother abandoned the father and child and moved to Texas. The father obtained a judgment of separation and later a judgment of divorce in Louisiana awarding him custody. The father lived in Louisiana with his parents who helped him take care of the child. The father was killed, giving rise to a claim by the child for his wrongful death in Louisiana. After the father’s death, the mother came to Louisiana and took physical control of the child from the paternal grandparents and obtained an ex parte custody order in Louisiana. The mother took the child back to Texas where she had remarried. After the child had been in Texas about six months, the paternal grandparents filed in Louisiana a rule to change custody to them, alleging the mother’s unfitness and forfeiture of parental rights. The mother excepted to the Louisiana court’s jurisdiction. Our Supreme Court held that the Louisiana court had jurisdiction under the Uniform Child Custody Jurisdiction Law, both because Louisiana was the child’s “home state”, within the meaning of LSA — R.S. 13:1702 A(l), and because the child and the persons seeking custody had significant connections with this state and there was available in this state substantial evidence concerning the child’s present or future care, LSA — R.S. 13:1702 A(2). In discussion the general purposes of the Uniform Act, the court states:

“The Uniform Child Custody Jurisdiction Law was proposed in an effort to have states impose uniform legislative rules on themselves regarding jurisdiction in child custody cases. A custody decree in one state is subject to modification not only by the courts of that state, but also by the courts of another state, since the Full Faith and Credit clause has limited application in custody cases. New York ex rel. Halvey v. Halvey, 330 U.S. 610 [67 S.Ct. 903, 91 L.Ed. 1133] (1947). In an age of fluid population trends many cases are presented in which jurisdiction may be concurrent in several states. In order to provide some stability to reasoned custody decrees by discouraging relitigation, to deter custody determinations by physical abduction, to avoid jurisdictional competition and conflicting custody decrees in several states, and primarily to attain the security of home environment necessary for a child’s well being, the National Conference of Commissioners proposed the uniform law adopted in Louisiana by Act 513 of 1978. See R.S. 13:1700. At that time numerous other states had adopted the uniform law.”

In Revere, the Supreme Court made the following statement which has particular application to the present case:

“It is evident that jurisdiction may exist in two different states under the home state and significant connection standards. When this occurs, it is not necessary that the significant connection state defer in every case to the home state. The conflict is avoided by reference to priority of filing (see R.S. 13:1705), which requires a court with jurisdiction under the uniform law to defer to the court of another state with uniform law jurisdiction when the first proceeding was filed in the latter state) and to factors indicating Louisiana is an inconvenient forum (see R.S. 13:1706, which encourages judicial restraint when another state with jurisdiction under the uniform law appears to be in a better position to determine custody).

Revere, supra, is similar to the present case in that both Texas and Louisiana had jurisdiction, but the present case differs from Revere in that here custody decrees have been rendered in both states, first in Louisiana and then in Texas, whereas in Revere the only custody proceedings filed were in Louisiana.

Before discussing the conflicting custody decrees from Texas and from Louisiana, we note that LSA — R.S. 13:1701(4) defines a “custody decree” as a “custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.” Section 1701(3) defines a “custody proceeding” as including a proceeding “in which a custody determination is one of several issues, such as an action for divorce or separation.” Thus, insofar as custody decrees are concerned, the prior jurisprudential rule, cited above, that a judgment of divorce abates a prior judgment of separation and all matters incidental thereto, including custody decrees, is changed by the Uniform Child Custody Jurisdiction Act. Under the Uniform Act, the Louisiana court which renders a custody decree in a separation proceedings need not necessarily defer to a subsequent custody decree rendered in a divorce proceedings in another state.

In Revere, supra, our Supreme Court points out that the Uniform Law seeks to solve the problem of conflicting custody decrees from different states, both of which have jurisdiction. The court notes LSA— R.S. 13:1705 which provides:

“§ 1705. Simultaneous proceedings in other states
A. A court of this state shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Part, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.
B. Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under Section 1708 and shall consult the child custody registry established under Section 1715 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
C. If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with Sections 1718 through 1721. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum. Added by Acts 1978, No. 513, § 1, eff. Oct. 1. 1978.”

Of particular relevance to the issue in the present case are the provisions of LSA— R.S. 13:1712 which state:

“§ 1712. Recognition of out-of-state custody decrees
The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this Part or which was made under factual circumstances meeting the jurisdictional standards of the Part, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this Act.”

Under LSA — R.S. 13:1712, quoted above, the courts of Louisiana must recognize an initial or modification decree of a court of another state “which had assumed jurisdiction under statutory provisions substantially in accordance with this part (meaning the Uniform Law) or which was made under factual circumstances meeting the jurisdictional standards of the part.” As stated above, Texas has not adopted the Uniform Law. If the Uniform Law had been in effect in Texas at the time the father sought custody there, the Texas court would have been bound to follow the procedures set out in LSA — R.S. 13:1705, quoted above, and also to follow generally the provisions of Sections 1706-1710. This means that the Texas court should have discovered the existing custody decree rendered in Louisiana about six months previously, should have obtained a copy of the proceedings in Louisiana and other information supplied by the parties, should have informed the Louisiana courts of the institution of custody proceedings in Texas, and, in general, should have cooperated with the Louisiana court in determining the most convenient forum for gathering evidence and the court best suited to decide the custody dispute. Insofar as the record before us shows, the Texas court did none of the these things. Therefore, the Texas custody decree was not rendered substantially in accordance with the provisions of the Uniform Law and need not necessarily be recognized by the courts of Louisiana. LSA —R.S. 13:172.

Moore v. Moore, 379 So.2d 1153 (La.App. 2nd Cir. 1980), involved the Uniform Law, but not the precise issue presented here. In Moore a mother divorced under a New Mexico judgment sought in a Louisiana court reduction of the father’s visitation rights granted in the New Mexico decree. The district court in Louisiana sustained the father’s exception to the jurisdiction. The Second Circuit Court of Appeal held that Louisiana had jurisdiction to modify the New Mexico decree, where the child and the mother resided in Louisiana and the only remaining connection of the parties with New Mexico was the father’s residence there. The question in Moore was simply whether Louisiana had jurisdiction to modify the New Mexico decree. Clearly, the Louisiana court did have such jurisdiction, as all custody decrees are always subject to modification because of changed circumstances. See Revere, supra. However, the court in Moore discussed generally the purposes and rationale of the Uniform Act, in much the same manner as set forth by the Supreme Court in Revere. See also the Legislative Symposium, 39 L.Law Rev. 107, which discusses generally the provisions of the Uniform Act.

Looking at the present case generally, in light of the purposes of the Uniform Law, it would clearly be contrary to the spirit of the act to allow the father to go into a Texas court and obtain a custody decree, where the mother and children were living in Louisiana and the Louisiana court had already rendered a decree giving custody to the mother. The action by the father in obtaining the Texas decree resulted in precisely the kind of conflict between custody decrees of different states which the Uniform Act seeks to suppress.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

LABORDE, J., dissents and assigns written reasons.

LABORDE, Judge,

dissenting.

I disagree that this is a child custody case involving application of the Uniform Child Custody Jurisdiction Act. It is instead a pure full faith and credit case posing the issue of whether Louisiana must recognize and give effect to the custody portion-of a Texas judgment of divorce. Under Art. 4, Sec. 1 of our United States Constitution, I am convinced that we must.

Plaintiff-father filed this suit to have a Texas judgment awarding him custody of his two children recognized and made exec-utory in Louisiana. The defendant-mother answered and reconvened arguing invalidity of the judgment based on the Texas court’s lack of jurisdiction. From a decision in favor of the mother, the father appeals.

The facts are sufficiently set forth in the majority opinion.

As stated above, the only issue presented on appeal is whether Louisiana must give full faith and credit to the custody portion of the Texas decree.

The United States Constitution mandates that the courts of Louisiana shall give full faith and credit to judgments of the courts of our sister states unless it is shown that the rendering court lacked jurisdiction over the subject matter or parties of the litigation. U.S.C.A.Const. Art. 4, Sec. 1; LSA-C. C.P. Art. 1; Magnolia Petroleum Company v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943); Holden v. Holden, 374 So.2d 749 (La.App. 3rd Cir. 1979). The result is that in a proceeding for the recognition of a foreign judgment, the only issue which a Louisiana court may concern itself with is whether or not the foreign court had jurisdiction to make such an award. Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Holden v. Holden, supra. If it did, Louisiana is without power or discretion to deny giving the foreign judgment full faith and credit.

There is a presumption that a court of a sister state had jurisdiction sufficient to render judgment in a case before it and the assailant of the judgment bears the heavy burden of proving otherwise. Berry v. Berry, 307 So.2d 821 (La.App. 3rd Cir. 1975); Holden v. Holden, supra. The burden to establish that the foreign court was without jurisdiction can only be discharged by clear and positive proof. Turpin v. Turpin, 175 So.2d 357 (La.App. 2nd Cir. 1965); Holden v. Holden, supra.

The defendant, Elizabeth Eicke, attacks the judgment in the present case and she bears the burden of proving, by clear and positive evidence, that the Texas court lacked jurisdiction when it rendered the custody award. The law utilized to determine whether the foreign court had jurisdiction is the law of the foreign state rendering the judgment. Fountain v. Fountain, 365 So.2d 1139 (La.App. 3rd Cir. 1978).

The attorney for Johannas, in brief, offered the following law and jurisprudence regarding jurisdiction over custody matters in Texas courts:

“With regard to the statutory authority for the Texas court to obtain jurisdiction over the parties, it is shown that the Texas Family Code Annotated Section 11.051 provides in pertinent part:
In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over the person’s personal representative, although the person is not a resident or domiciliary of this State if:
(1) the child was conceived in this. State and the person on whom service is required is a parent or an alleged or probable father of the child;
(2) the child resides in this State as defined by Section 11.04 of this code, as a result of the acts or directives or with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child in this State; or
(4)notwithstanding Subdivisions (1), (2), or (3) above, there is any basis consistent with the Constitution of this State or of the United States for the exercise of personal jurisdiction.
In Butler v. Butler, 577 S.W.2d 501 (Court of Civil Appeals of Texas, 1978), the court held that where Texas was the last state in which marital cohabitation between the parties occurred and suit was commenced within two years after the date on which cohabitation ended, minimum contacts necessary for Texas to exercise long-arm jurisdiction over the husband were present and where the parents and the child had been long-time residents of Texas and it was only shortly before suit was filed that the husband left with the minor daughter, the Texas court was justified in exercising long-arm jurisdiction and substituted service on the husband’s attorney outside the state by certified mail with a return receipt requested and this was reasonably calculated to give the husband notice of the suit and satisfied all due process requirements.” (Appellant’s Brief pp. 11-12)

By way of contrast, attorney for Mrs. Eicke failed, at trial and on appeal, to introduce any evidence of the law of Texas with respect to jurisdiction over custody matters.

In addition to the law and jurisprudence cited by Johannas and the lack of any citation on the part of Mrs. Eicke, the Texas court in its judgment, specifically stated:

“... after examining the pleadings and listening to the evidence and argument of counsel, (the Court) finds it has jurisdiction over the cause and the parties...”

Upon review, the record supports that the Texas court had jurisdiction to determine custody under several of the sections of its law and also under the jurisprudence cited above, a fact not disputed by the majority who concedes that “the record clearly shows the Texas court had jurisdiction of the custody of the children under the Texas law.” Under our constitution, after finding that the rendering court had jurisdiction, the limited inquiry permitted must end and the judgment is entitled to full faith and credit, period.

The majority, ignoring the reality of the valid Texas judgment, errs by failing to acknowledge that this is a full faith and credit case and by failing to restrain itself accordingly. Instead, the majority proceeds to treat the case as one involving application of the Uniform Child Custody Jurisdiction Act which Louisiana, but not Texas, has adopted. Upon review, the majority concludes “looking at the present case generally, in light of the purposes of the uniform law, it would clearly be contrary to the spirit of the act to allow the father to go into a Texas court and obtain a custody decree, where the mother and children were living in Louisiana and the Louisiana Court had already rendered a decree giving custody to the mother.” In support of its position, the majority cites the Revere case. Revere is inapplicable for the simple reason that it was not a full faith and credit case.

In conclusion, I am not convinced that Louisiana, by adopting the Uniform Child Custody Jurisdiction Act may effectively “amend” the full faith and credit clause of the United States Constitution.

For the foregoing reasons, I respectfully dissent.

      “3 Texas has not enacted the uniform law. The act, however, is not a reciprocal act, and by adopting the uniform law, Louisiana has obligated itself to adhere to the terms of the act even though the other concerned state has not done so.”


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Pearl HUTCHISON, Plaintiff-Appellee, v. James Dalton JACKSON, Defendant-Appellant.
    No. 8199.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Lowther & Boone, Robert C. Lowther, Leesville, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   DOMENGEAUX, Judge.

The defendant, James Dalton Jackson, is the owner of an enclosed estate. To get to the nearest public road from his property, defendant crosses the property of Pearl Hutchison, who sued to enjoin defendant from crossing her (plaintiff’s) land for such purpose. Thereafter, defendant filed an answer and reconventional demand asking for a servitude of passage across plaintiff’s property. Following trial of the demands, judgment was rendered on September 12, 1980. Therein, the trial court found that defendant was entitled to a servitude of passage across plaintiff’s land under La.C.C. Art. 689 and granted him a right-of-way 40 feet wide and 628 feet in length (25,120 square feet). The court found the value of the servitude to be $5,446.40 and condemned defendant to pay plaintiff that amount plus costs, including $250.00 in expert witness fees and legal interest on $5,446.40 from the date plaintiff filed suit. Defendant has appealed and contends the amount awarded by the court was excessive. The proper value of the servitude is the only issue remaining on appeal.

The property comprising the servitude of passage is an existing but privately owned roadway located in Pendleton Estates (plaintiff’s property), an unimproved tract of land abutting the Toledo Bend Reservoir about 17 miles west of Many, Louisiana. Two expert appraisers offered their opinions as to the value of the 25,120 square foot right-of-way.

Mr. C. G. Bullard, who testified for plaintiff, believed the 402 feet (16,080 square feet) nearest the Toledo Bend Reservoir was worth 25 cents per square foot and that the other 226 feet (9,040 square feet) was worth 16 cents per square foot. Mr. C. R. Ammons, defendant’s appraiser, assigned a value of $500.00 to the entire right-of-way tract but thought the property would be difficult to sell at any price. The trial court explained why he accepted Mr. Bullard’s appraisal over the one offered by Mr. Am-mons:

“Having considered all the evidence of the amount of damages due plaintiff for the imposition of the servitude upon her property, I conclude that she is entitled to Five Thousand Four Hundred Forty-Six and 40/100 ($5,446.40) Dollars for those damages. This is the amount arrived at by Mr. C. G. Bullard, plaintiff’s appraiser. Although defendant’s appraiser, Mr. C. R. Ammons, arrived at a lesser amount, I do not find that his appraisal result is supported by the evidence. From his testimony, it appears that he did not consider the value of the subject property as part of the adjacent lots of the proposed subdivision. Since the subject property has not been dedicated to the public or otherwise made a public road or street, it is available for sale as part of the adjacent lots. As part of those lots, it would obviously have more value than it would have if it were offered as a separate lot, forty (40) feet wide. It is not likely that the subject property would be offered for sale as a separate lot for the reason that the forty (40) foot width of the lot would eliminate it from consideration as a residential building site, which is the highest and best use of property in this vicinity.
An additional reason for considering the subject property as part of the adjacent residential property, is the apparent necessity for re-locating Oak Ridge Drive from its present proposed location in order that the proposed subdivision lots meet the minimum size and square foot requirements of the Sabine Parish subdivision regulations. If the proposed Oak Ridge Drive were re-located, as suggested by Mr. Bullard, the subject property would become part of the proposed shoreline lots, which are more valuable than lots without shoreline frontage. Since the existing roadway on the subject property has neither been dedicated to public use nor otherwise acquired by the public or the defendant, plaintiff would be free to include the subject property in the proposed shoreline lots, except for the necessity of providing a servitude of passage to defendant’s property. Although the parties have stipulated that the location of the servitude shall be the present location of the proposed Oak Ridge Drive, that stipulation does not preclude consideration of plaintiff’s loss of the subject property for sale as part of adjacent residential lots. Moreover, the increased value of the subject property, resulting from its consideration as part of adjacent residential lots is probably offset by the cost to the defendant of constructing a road at another servitude location. The present location gives him the benefit of road construction and work, provided him without charge, by the Police Jury, prior to the Jury’s termination of work on the existing road.
The fact that Mr. Bullard considered recent sales of subdivision lots near the subject property does not detract from his appraisal result. Although these nearby subdivision lots may have been more fully developed than the subject property, he made allowances for this difference in his appraisal. The values per square foot he arrived at for the subject property are less than the price per square foot in all the sales of subdivision lots he used as comparables. Furthermore, the square foot values for the subject property, arrived at by Mr. Bullard, do not exceed the price per square foot plaintiff received April 14, 1979 for a lot, adjacent to the subject property.
In assessing the weight to be given Mr. Ammons’ appraisal, the fact that he is obligated to pay for the cost of the servitude, at least up to Five Thousand and 00/100 ($5,000.00) Dollars, cannot be ignored. The amount of his liability on that obligation is fixed by the amount of damages assess herein. Therefore, he has a direct, financial interest in the outcome of this litigation. It is reasonable to conclude that his financial interest in this case has affected or influenced his appraisal of the subject property and accounts, at least in part, for the substantial difference in the amount of his appraisal and that of Mr. Bullard.”

For the reasons given by the trial judge, we do not believe he erred in accepting as the pre-taking value of the land within the servitude the value assigned by plaintiff’s expert appraiser.

Defendant last argues that the court erred in valuing the servitude of passage as though it were a complete alienation of the land involved. We think defendant’s argument has merit.

The record establishes that Mr. Bullard calculated only the pre-taking value of the land comprising the servitude. He did not indicate whether or not plaintiffs residual rights over the property have any value. It is evident from a reading of the following portion of the court’s opinion, though, that the district judge believed plaintiff’s residual rights are worthless:

“I see no reasonable or fair alternative to compensating plaintiff for the fair market value of the subject property. As a practical matter, the property will no longer be fit or suited for any purpose or use other than as a road. Her use of the road will be minimal. The property will no longer be available for sale by plaintiff to others as part of a residential lot. On the other hand, she is receiving no more than she would receive if the subject property were available for residential sale. No measure of value other than the fair market value approach has been shown to be applicable to the subject property. Therefore, plaintiff is entitled to the fair market value of the subject property as indemnification for the imposition of the servitude. That value, as stated previously, is the sum of Five Thousand, Four Hundred Forty-Six and 40/100 ($5,446.40) Dollars.”

Accordingly, the court awarded as damages an amount equal to the full market value of the property within the servitude.

We are aware that the trial judge has wide discretion in determining the amount of damages occasioned by the party on whose estate the right of passage is fixed. Collins v. Reed, 316 So.2d 134 (La.App. 3rd Cir. 1975), writ refused 319 So.2d 444 (La.1975). But we stated in Louisiana Resources Company v. Langlinais, 383 So.2d 1356 (La.App. 3rd Cir. 1980), that absent some extraordinary circumstances, the value of a servitude taken is not the same as the full market value of the land. No such circumstance exists in this case.

Although the servitude property may be used for no purpose other than as a road, plaintiff retains certain rights over the servitude property: Plaintiff retains the unfettered use of the roadway to portions of her property within Pendleton Estates which would otherwise be isolated and unreachable; she alone enjoys the right to dedicate the road to public use at some future date, if she should desire to do so; and she may extend the use of the same road to her own vendees, two of whom we note purchased enclosed estates from plaintiff near defendant’s own enclosed estate. In fact, these two other enclosed estates also adjoin the privately owned portion of Oak Ridge Drive.

Since the plaintiff retains certain rights over the servitude property, the trial court erred in ordering defendant to pay the full market value of the property. Although plaintiff’s residual rights over the property are limited, we believe these rights are worth 10% of the total value of the servitude property. Accordingly, plaintiff’s recovery of damages is limited to 90% of the value, or $4,901.76. See Louisiana Resources Company v. Langlinais, supra; Greater Baton Rouge Airport District v. Hays, 339 So.2d 431 (La.App. 1st Cir. 1976), writ denied 341 So.2d 403 (La.1977); and State, Dept. of Highways v. Ronaldson, 316 So.2d 898 (La.App. 1st Cir. 1975) for similar results.

For the above reasons, the judgment of the district court against the defendant, James Dalton Jackson, in the amount of $5,446.40 is hereby amended and reduced to $4,901.76. As amended, the judgment is affirmed. Costs of this appeal are assessed one-fourth to the plaintiff, Pearl Hutchison, and three-fourths to the defendant, James Dalton Jackson.

AMENDED AND AFFIRMED.

      . Mr. Bullard based his valuation on the assumption that the right-of-way width was fifty feet rather than forty feet. The court apparently reduced the values assigned by Mr. Bullard in his report to correspond with the narrower width. According to our calculations, these values (16,080 sq. ft. @ $.25/sq. ft. and 9,040 sq. ft. @ $.16/sq. ft.) when combined yield a total of $5,466.40 rather than $5,446.40. Neither party questions this slight error, though, so we will not disturb the court’s finding that the value of the property within the servitude was $5,446.40.

      . All references to the record have been deleted.

      . The evidence shows that Mr. Ammons sold defendant the enclosed estate but promised to pay up to $5,000.00 to secure a right-of-way for defendant.

      . The private road connects with Oak Ridge Drive, a publicly maintained road.


author: STOKER, Judge.

text:
    Anita AINSWORTH et vir, Plaintiffs-Appellants, v. STATE FARM AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8216.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      J. P. Mauffray, Jr., Jena, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Stafford, Stewart, Potter, Larry A. Stewart, Alexandria, for defendants-appellees.
    Before SWIFT, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is a personal injury action by Anita Ainsworth and her husband, Travis L. Ains-worth, growing out of alleged injuries sustained by Mrs. Ainsworth in an automobile collision. The collision occurred on June 14, 1979, in Jena, Louisiana. The matter went to trial before a jury, but after thé trial the defendants conceded liability. The only issues before this court are questions related to the award of damages.

The issues are (1) whether the jury erred in awarding only $3,125.60 as medical expenses incurred on behalf of Anita Ains-worth, and (2) whether the jury erred in failing to award Anita Ainsworth damages for her personal pain and suffering.

The jury responded to the special interrogatories as follows:

“INTERROGATORIES TO JURY
“(1) Do you find that Anita Ainsworth was injured in the accident of June 14,1977? [sic]
Yes (yes or no)
IF YOUR ANSWER IS NO,
YOU DO NOT NEED TO ANSWER QUESTIONS 2 and 3 BELOW
“(2) How much do you award Mr. Travis Ainsworth for medical expenses by Mrs. Ainsworth in the past and in the future?
$3,125.60
“(3) How much do you award Mrs. Ainsworth for injuries and all damages resulting form [sic] the accident of June 14,1979?
$ 0
s/ Odis Shavers_
JURY FOREMAN”

A judgment in accordance with the jury verdict was signed. This appeal is from that judgment.

The record reveals that the Ainsworth vehicle was stopped at a traffic signal .on U.S. Highway 84 in Jena, Louisiana, when it was struck in the rear by the vehicle driven by Elva M. Vance. The impact of the accident dented the bumper of the Ains-worth vehicle and compressed the rear bumper isolator.

The medical evidence supports the jury’s conclusion that plaintiff was injured in the accident on June 14, 1979. This finding is not manifestly erroneous.

Prior to the accident which is the basis of this suit plaintiff had been involved in several other accidents and had undergone a disc fusion. At the time of the accident plaintiff was under the care of Dr. John J. McCutchen, a neurologist.

Following the accident plaintiff saw Dr. McCutchen on June 26, 1979. At that time Dr. McCutchen hospitalized plaintiff. Plaintiff remained hospitalized from June 26, to July 7. Her treatment included physical therapy, anti-inflammatory medicines and muscle relaxants. Plaintiff was discharged with instructions to continue her medication and conservative treatment at home.

Dr. McCutchen opined that in the June 14 accident plaintiff received a shock and trauma to the nervous system and spine with severe aggravation of the cervical spine including the sites of the previous fusion. Dr. McCutchen felt that this aggravation would accelerate disc degeneration.

Dr. I. C. Tumley, a general practitioner in Jena, Louisiana, testified that he saw plaintiff on July 9,1979, following the accident and her discharge from the hospital. At that time plaintiff’s main complaint concerned her neck. Dr. Turnley diagnosed a slightly irritated sciatic nerve.

We find no error in the jury’s award of $3,125.00 in past and future medical expenses. The plaintiff contends the jury abused its discretion by failing to award the full amount of medical expenses incurred and a reasonable amount for future medical expenses. We believe the jury reasonably concluded that the aggravation of plaintiff’s pre-existing back condition caused by the accident of June 14 was resolved upon plaintiff’s discharge from the hospital on July 7.

We infer that this was the jury’s conclusion from the fact that the jury awarded $3,125.60 in medical expenses. This award represents the expenses incurred from June 26 to July 7, the period of Anita Ains-worth’s initial hospitalization. It is our opinion that the jury did not feel that Anita Ainsworth’s second hospitalization from July 20 to August 1 was causally related to the accident of June 14. This conclusion is not manifestly erroneous. The jury did not abuse its much discretion in awarding $3,125.60 to cover the expenses incurred for the period of June 26 to July 7.

The jury did not err in failing to make an award for future medical expenses. Such an award is not proper in the absence of medical testimony indicating that these expenses will be incurred and an estimate of the probable cost of the medical treatment. Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970), writ denied, 256 La. 266, 236 So.2d 36. The record contains no testimony as to future medical expenses, therefore, an award is not proper.

Having found that plaintiff was injured in the June 14 accident the jury erred in failing to award plaintiff general damages for her pain and suffering. A jury may not refuse to award general damages to a plaintiff who proves that he sustained injury as a result of the defendant’s negligence. See Brown v. Grigsby, 394 So.2d 847 (La.App. 3rd Cir. 1981) and Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976). The failure to award general damages is an error of law which we must correct on appeal. In such circumstances we are guided by the principle of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We award plaintiff $3,000.00 in general damages.

Plaintiff, Anita Ainsworth, claims she is entitled to an award for lost income, past and future. Anita Ainsworth and Jeannette Ainsworth operate the Tiny Tot Nursery. These two ladies testified that they divide the net income of the nursery equally. Anita Ainsworth testified that she missed 117 days of work from the accident of June 14 until the date of the trial. Plaintiff stated that a substitute worker was paid $12.00 a day to work the days plaintiff missed. Plaintiff contends she lost $6.00 per day (her one-half of the wages paid) for each day the substitute worker worked for a total of $702.00. Plaintiff’s claim for loss of income prior to trial because of sums allegedly spent to engage a substitute worker to replace her are without corroboration. Plaintiff produced no receipts or canceled checks showing the amounts paid, nor did she identify or produce the substitute worker in an attempt to substantiate her claim.

In Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971) the Louisiana Supreme Court considered the standard of proof with respect to loss of earnings. The standard applied in such cases is the “more-probable-than-not” standard, and even in cases where the proof consists primarily of the claimant’s uncorroborated testimony, this proof is entitled to great weight where the claimant’s testimony is uncontradicted. In the case before us the jury was entitled to make a credibility evaluation and to consider the circumstances of the matter and the prior working arrangement of the plaintiff-appellant and her partner. On the basis of the record and the jury’s opportunity to hear the testimony we cannot say its failure to award a sum for loss of income prior to trial was clearly wrong. Therefore, we will not disturb the jury’s finding.

Plaintiff contends she is entitled to recover $9,048.00 for future loss of income ($312.00 per year until age 65). To support an award for loss of future income plaintiff must prove the loss with reasonable certainty. Plaintiff, Anita Ainsworth, did not sustain the burden in this case and is not entitled to such an award.

We amend the judgment below to award plaintiff Anita Ainsworth $3,000.00 in general damages. In all other respects the judgment below is affirmed. Costs of this appeal are to be borne by defendant.

AMENDED AND AFFIRMED AS AMENDED.

      . Mrs. Vance was driving her sister’s vehicle which was insured by State Farm Mutual Automobile Insurance Company. The original defendants were Elva M. Vance and State Farm. By a supplemental petition Prudential Property and Casualty Insurance Company, the liability insurer of Mrs. Vance, was added as a defendant in lieu of Mrs. Vance.

      . On behalf of defendants it is contended the Louisiana Supreme Court has confirmed the principle that a trier of fact may make an award of “zero” for general damages. Defendants cite Napoli v. State Farm Mutual Automobile Insurance Co., 395 So.2d 720 (La.1981), affirming the opinion of the Court of Appeal for the First Circuit in the case reported at 387 So.2d 1351 (La.App. 1st Cir. 1980). The Napoli case may be distinguished on the ground that in Napoli the court agreed “that the record does not support a finding that the accident caused the [plaintiffs] injury.” With respect to Anita Ainsworth the jury made a specific finding in jury interrogatory number one that she was injured in the accident in question. The record supports a finding that she was injured and suffered from the effects of injury for a period of time.


text:
    CALCASIEU-MARINE NATIONAL BANK OF LAKE CHARLES, Plaintiff-Appellee, v. William A. DARLING, Russell Mayne, Clifford V. Ryder, Defendants-Appellants.
    No. 8227.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., and Leslie J. Schiff, Opelousas, for defendants-appellants.

      Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield, Lake Charles, for plaintiff-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   STOKER, Judge.

The defendants and appellants in this case are William A. Darling, Russell Mayne, and Clifford V. Ryder. The issues on appeal are:

(1) Whether defendants personally and individually guaranteed the payment of $35,000 by a corporation, Darling & Ryder, Inc., to plaintiff bank, the Calcasieu-Marine National Bank of Lake Charles, and

(2) If it is found that defendants did give the guarantee, is the guarantee subject to a suspensive condition which was never met.

Resolution of these two issues requires construction or interpretation of a written contract purporting to represent a compromise settlement agreement. Judgment in the trial court was in favor of plaintiff. We affirm.

FACTS

Under a contract of joint venture, Goss Construction Company, Inc., and Darling & Ryder, Inc., entered into a contract with the State of Louisiana to perform work on the Sabine River Diversion System, Divisions C, D, and E. Under the joint venture contract, Goss Construction Company, Inc., (Goss) was apparently obligated to do the work and Darling & Ryder, Inc., (Darling) contributed otherwise. Goss was unable to complete the project. Darling, also being bound in the contract with the State, undertook to complete the contract. Calcasieu-Marine National Bank of Lake Charles (Calcasieu-Marine) made construction loans to Goss Construction Company, Inc., in order to finance the project.

With matters in this state, a three-way contract of settlement was devised to accomplish the following:

(1)Termination of the joint venture between Darling & Ryder, Inc., and Goss Construction Company, Inc.

(2) Assumption by Darling & Ryder, Inc., of all responsibility for the construction contract with the State.

(3) Settlement and agreement as to the amount owing by Goss to Calcasieu-Marine and the provision of some assurance to the bank that it would be paid.

It appears that there was a question of some retainage which would ultimately be due and owing by the State on the original contract with the two joint venturers. It was first contemplated that the three-way contract would merely provide that the State be directed to pay the bank out of this retainage. The parties apparently decided that this was impracticable and that the State could not be bound by their contract. As a result, a contract was entered into by Goss, Darling, and Calcasieu-Marine which was based on the following agreements:

(1) That the joint venture agreement between Goss and Darling be terminated.

(2) The amount due and owing by Goss to Calcasieu-Marine be fixed at $35,000.

(3) That Goss and Darling be released from any liability to Calcasieu-Marine other than the $35,000.

(4) That Darling release Goss from any further liability under the joint venture contract.

The dispute in this case concerns whether or not William A. Darling, Russell Mayne, and Clifford V. Ryder personally and individually guaranteed the payment of $35,000 to Calcasieu-Marine. It appears that these three defendants were the owners of the corporation known as Darling & Ryder, Inc. The actual contract which was entered into reads as follows:

“STATE OF LOUISIANA
“PARISH OF CALCASIEU
“BE IT KNOWN that on the date set forth below, before me, Charles W. Car-wile, Notary Public, came and appeared Goss Construction Company, Inc., appearing [sic] through Orville Goss, President; Darling & Ryder, Inc., appearing through Russell Mayne, President; Calca-sieu Marine National Bank of Lake Charles, appearing through Frank Fields, Executive Vice-President; William A. Darling, Russell Mayne, and Clifford J. Ryder, [sic] who being duly sworn declared that:
“WHEREAS DARLING & RYDER, INC., a Louisiana corporation domiciled in Opelousas, St. Landry Parish, Louisiana, and GOSS CONSTRUCTION COMPANY, INC., a Louisiana corporation domiciled in Calcasieu Parish, Louisiana, have entered into a joint venture agreement for the purpose of performing work known as the Sabine River Diversion System, Divisions C, D, and E, with the State of Louisiana, through the Department of Public Works, and
“WHEREAS GOSS CONSTRUCTION COMPANY, INC., is no longer able to perform work assigned to it under the joint venture agreement and contract, and
“WHEREAS GOSS CONSTRUCTION COMPANY, INC., has assigned or pledged its interest in proceeds under the contract to the Calcasieu Marine National Bank of Lake Charles, Calcasieu Parish, Louisiana, and
“WHEREAS the parties hereto have mutually agreed to terminate the joint venture agreement, and
“WHEREAS DARLING & RYDER, INC., has an obligation to the State of Louisiana to complete the work assigned to GOSS CONSTRUCTION COMPANY, INC., under the joint venture agreement and contract, and under the contract with the State of Louisiana, and has expressed the ability to perform the work, and
“WHEREAS GOSS CONSTRUCTION COMPANY, INC., and the Calcasieu Marine National Bank of Lake Charles, Louisiana, have indicated that they claim certain sums of money due under the aforementioned contract as extra work and as retainage, and
“WHEREAS DARLING & RYDER, INC., has and does recognize the validity of the claim of GOSS CONSTRUCTION COMPANY, INC., and Calcasieu Marine National Bank of Lake Charles, Louisiana, to the extent of Thirty-Five Thousand and no/100 ($35,000/00) Dollars, and
“WHEREAS DARLING & RYDER, INC., in consideration of the mutual cancellation of the joint venture agreement and the surrender by GOSS CONSTRUCTION COMPANY, INC., and Calcasieu Marine National Bank of Lake Charles, Louisiana, of any further claims in and to the contract previously referred to or the retainage have agreed to release Mr. Orville Goss and the former Mrs. Orville Goss (born Trevelyn Abshire), from their obligation on the bond of said contract or to hold such individuals harmless from any obligation on said bond;
“Now therefore it is agreed by and between the parties as follows:
(1) The joint venture agreement dated June 17,1974, and amended August 14, 1975, is hereby terminated.
(2) The State of Louisiana, Department of Public Works, is directed, at the end of the contract to pay out of the retainage directly to Calcasieu Marine National Bank of Lake Charles, Louisiana, the sum and amount of Thirty-Five Thousand and no/100 ($35,-000.00) Dollars, and no more from the first retainage disbursed.
(3) DARLING & RYDER, INC., agrees to hold Orville Goss and the former Mrs. Orville Goss (born Trevelyn Ab-shire) harmless in connection with any obligation which they may have on the bond which was posted in connection with this contract.
(4) GOSS CONSTRUCTION COMPANY, INC., and the Calcasieu Marine National Bank of Lake Charles, Louisiana, authorize and instruct the Department of Public Works of the State of Louisiana to make all further payments due on this contract or on the retainage (with the exception of the $35,000.00 payment previously mentioned) directly to Darling & Ryder, Inc., or to anyone nominated by Darling & Ryder, Inc., to receive payment.
(5) GOSS CONSTRUCTION COMPANY, INC., agrees to make available to Darling & Ryder, Inc., any records it has relating to the joint venture project.
(6) GOSS CONSTRUCTION COMPANY, INC., and Calcasieu Marine National Bank of Lake Charles, Louisiana, further release DARLING & RYDER, INC., of any and all liability herein arising out of the joint agreement save and except for the $35,000.00 previously mentioned.
(7) DARLING & RYDER, INC., further releases GOSS CONSTRUCTION COMPANY, INC., and Calcasieu Marine National Bank of Lake Charles, Louisiana, of any further liability herein or related to and/or arising out of the joint venture contract and the failure of GOSS CONSTRUCTION COMPANY, INC., to perform thereunder as contemplated and any delays in the project and/or payment of progress payments to Darling & Ryder, Inc.
“IT IS AGREED AND UNDERSTOOD THAT THIS SETTLEMENT AGREEMENT REPRESENTS THE SETTLEMENT ENTERED INTO BY THE PARTIES HERETO OF CONTESTED AND DISPUTED MATTERS. EACH PARTY DECLARES ITSELF SATISFIED WITH THE CONTENTS HEREOF HAVING ENTERED INTO THIS AGREEMENT IN ORDER TO RESOLVE ALL DISPUTES EXISTING BETWEEN THE PARTIES AND TO PUT AT REST, ONCE AND FOR ALL, WITHOUT THE NECESSITY OF RESORTING TO LITIGATION, ALL DISPUTES EXISTING BETWEEN THE PARTIES.
“William A. Darling, Russell Mayne, and Clifford V. Ryder join herein individually to guarantee the payment of $35,-000.00 to the Calcasieu Marine National Bank of Lake Charles not later than 45 days after payment of retainage is required of the State of Louisiana under the terms of the contract undertaken by the joint venture for the Sabine River Diversion System, Divisions, C, D, & E.
“THUS DONE AND SIGNED in multiple originals in Lake Charles, Calcasieu Parish, Louisiana, this 5th day of October 1977, in the presence of the undersigned competent witnesses after reading of the whole.

It appears from the transcript of the testimony and the argument of parties that preliminary drafts of an agreement were considered. As noted above, the question arose as to whether or not the State of Louisiana could be bound by the provision contained in the contract directing the State through the Department of Public Works to pay $35,000 from retainage to Calcasieu-Marine. The attorney representing the defendants and Goss resided in Opelousas. On the day fixed for entering into the contract, the parties went to the office of the attorneys for Calcasieu-Marine in Lake Charles, Louisiana. The attorney for Calcasieu-Marine and the attorney for the other parties conferred by telephone, the attorney for the latter being in Opelou-sas rather than at the meeting where the contract was to be signed. After some discussion the attorney for the bank read to the attorney for the defendants and Goss the final paragraph in the above quoted contract which he proposed to add to the contract to protect Calcasieu-Marine. The paragraph in question reads as follows:

“William A. Darling, Russell Mayne, and Clifford V. Ryder join herein individually to guarantee the payment of $35,-000.00 to the Calcasieu Marine National Bank of Lake Charles not later than 45 days after payment of retainage is required of the State of Louisiana under the terms of the contract undertaken by the joint venture for the Sabine River Diversion System, Divisions, C, D, & E.”

The attorney for the defendants and Goss indicated that this would be satisfactory and instructed his clients to sign the agreement with this paragraph in the agreement.

INTERPRETATION OF THE CONTRACT

It is the position of defendants that it was the sole intention of all parties that when William A. Darling, Russell Mayne, and Clifford V. Ryder affixed their individual signatures they acted solely to assure Calcasieu-Marine that its money would be paid by their corporation. They deny that they acted in any way to give a personal and individual guarantee.

Alternatively, they contend that if it is held they did give a personal guarantee, the provision contained a suspensive condition under which they did not owe Calcasieu-Marine anything unless and until a retain-age was actually required to be paid by the State. Inasmuch as Darling & Ryder, Inc., also defaulted on the contract and no re-tainage was ever due, defendants contend that the suspensive condition upon which their obligation would have rested never took place.

We cannot accept this interpretation. It is clear from the opening paragraph that the parties to the agreement were Goss Construction Company, Inc., Darling & Ryder, Inc., and Calcasieu-Marine National Bank of Lake Charles. The instrument is signed on behalf of Goss by its president, Orville Goss; on behalf of Calcasieu-Marine by its executive vice-president Frank Fields; and on behalf of Darling & Ryder, Inc., by its president Russell Mayne. Following these signatures by the representatives of the corporations are the three individual signatures of William A. Darling, Russell Mayne, and Clifford V. Ryder.

Defendants contend that the contract is unenforceable because there was no meeting of minds on a major aspect of the contract, namely, the language and intent of the guarantee. They refer us to certain articles of the Louisiana Civil Code and various cases in the jurisprudence. The contract as written is clear and unambiguous. The testimony and evidence do not justify our giving any interpretation to the language of the guarantee other than its plain intent as expressed. LSA-C.C. arts. 13 and 1945 and Roos v. Way, 234 So.2d 489 (La.App. 3rd Cir. 1970), writ denied, 256 La. 617, 237 So.2d 398 (1970).

In our opinion the critical language of the contract in question was added at the insistence of Calcasieu-Marine, and in plain language the three individual defendants appeared not on behalf of their corporation, but individually to guarantee the payment of $35,000 to Calcasieu-Marine. It is our further opinion that the words “not later than 45 days after payment of retainage is required of the State of Louisiana,” is not a suspensive condition. This is merely a time limitation which would put an end to the period within which the $35,000 should have been paid to Calcasieu-Marine. If this sum did not come from retainage paid by the State, then by the end of the forty-five days it was the obligation of Darling & Ryder, Inc., to pay the $35,000, and if that corporation did not pay, the individual defendants were required to pay under the guarantee.

ACTION OF THE TRIAL COURT

On trial of the case the trial court granted judgment in favor of the plaintiff, Calca-sieu-Marine, against the three individual defendants in the amount of $35,000 with judicial interest and costs. In our opinion the trial judge was correct and we affirm his judgment.

The costs of this appeal will be assessed to the defendants-appellants.

AFFIRMED.

      . In Roos v. Way, supra, this Court of Appeal stated:
      “... Where the terms of the contract are so clear, the courts will not modify the contract unless it is contrary to good morals or public policy, which it manifestly is not.” [Citations omitted.]
      “The terms of the contract are clear and unambiguous and must be enforced as they are written, since a contract is considered as the law between the parties.” [Citations omitted.]


author: ELLIS, Judge:

text:
    STATE FARM FIRE & CASUALTY CO. v. Mrs. Rose G. PFIFFNER and Hanover Insurance Co.
    No. 14532.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1981.

      R. Bradley Lewis, Talley, Anthony, Hughes & Knight, Bogalusa, for defendant, Hanover Ins. Co.
    Alton B. Lewis, Jr., Hammond, for plaintiff State Farm Fire and Casualty Company.
    Curtis M. Baham, Jr., Hammond, for Mrs. Rose A. Gomilla Pfiffner.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a subrogation suit by State Farm Fire & Casualty Company against Mrs. Rose A. Gomilla Pfiffner and Hanover Insurance Company. The petitions allege that Mrs. Alma E. Bardwell, plaintiff’s insured, leased a residence from Mrs. Pfiff-ner, and that the residence was destroyed by fire due to the negligence of Mrs. Pfiff-ner and her co-owners. As a result, the contents of the residence, which belonged to Mrs. Bardwell and were insured by plaintiff, were destroyed, and plaintiff paid the sum of $11,681.86 to cover the loss. In this suit, plaintiff seeks to recover that amount from the defendant.

Hanover filed a motion for summary judgment, alleging that it insured the residence for loss by fire only, was not Mrs. Pfiffner’s liability insurer, and provided no insurance on the contents of the residence. Attached to the motion were a copy of the policy itself and the affidavit of Hanover’s Claims Supervisor. The trial judge denied the motion and Hanover applied to this court for writs. We issued an alternative writ of certiorari directing the trial judge to grant the motion for summary judgment or to show cause in the court why the writ should not be granted. The alternative having been elected the case is now before us for decision.

The copy of the policy in the record shows that there is no liability coverage, and that the policy affords general hazard insurance to the following properties:

“15,500.00 on the one story, frame, approved roof one family owner occupied dwelling situated: W. S. Range Road, about V-k miles south of Hammond City Limits (820)
“2,000 o.n household and personal effects in the above
“7,000 on the one story, frame approved roof tenant dwelling 100 yds. from Item # 1.”

Plaintiff claims that there is an issue as to which of the above buildings was occupied by Mrs. Bardwell. However, we note that the first building, which has the contents coverage, is “owner occupied,” and the second building, which has no such coverage, is a “tenant dwelling.” There can be no doubt that Mrs. Bardwell occupied the tenant dwelling and that there is no contents coverage thereon.

The contents coverage of the policy reads as follows:

“When the insurance under this policy covers household and personal property (or contents), such insurance shall only cover all household and personal property usual or incidental to the occupancy of the premises as a dwelling (except aircraft, motor vehicles and boats other than rowboats and canoes) including household and personal property purchased under an installment plan and usual or incidental to a dwelling, belonging to the insured or for which the insured may be liable or, at the option of the insured, belonging to a member of the family of the insured or to a servant thereof, while contained in the described dwelling or appurtenant private structure or while on the described premises.”

Plaintiff argues that, since the policy does not define “appurtenant private structure,” there is a material issue of fact as to whether the tenant dwelling is such a structure, and covered for its contents. This argument is also without merit. Coverage is afforded only for personal property of the insured, a member of his family or a servant, and not to personal property of a tenant. We also feel that the tenant dwelling is not “appurtenant” to the owner occupied residence.. Generally, a thing is appurtenant to another when it is necessarily connected with the use and enjoyment of the latter, as a garage or tool shed to a house. We do not think a tenant dwelling located 100 yards from the owner’s residence falls within this definition.

Since we find no dispute as to the material facts, and since we are of the opinion that Hanover is entitled to judgment as a matter of law, the ruling of the court below must be reversed.

Accordingly, the writ of certiorari issued herein is made peremptory, and there will be judgment in favor of The Hanover Insurance Company and against plaintiff, dismissing plaintiffs suit as to it at plaintiff’s cost.

REVERSED AND RENDERED.


author: COVINGTON, Judge.

text:
    Johnnie L. DARVILLE v. DAIGLE PONTIAC-BUICK-GMC, INC., et al.
    No. 14524.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1981.
    Alan J. Robert, Gonzales, for plaintiff and appellee.
    Pegram Mire, Jr., Gonzales, for defendant and appellant Daigle Pontiac-Buick-GMC.
    Jay McMains, Baton Rouge, for defendant and appellee G.M.C.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   ON THE MOTION TO DISMISS

COVINGTON, Judge.

Appellee, General Motors Corporation, has moved to dismiss the devolutive appeal of Daigle Pontiac-Buick-GMC, Inc., insofar as it affects General Motors Corporation.

The record reflects that trial of this matter was held on July 23, 1980, and that judgment was rendered at the close of evidence dismissing the principal demand insofar as it sought recovery against General Motors Corporation and dismissing the third party demand of Daigle Pontiac-Buick-GMC, Inc. in its entirety. The judgment was read and signed on July 25, 1980, and notice of the judgment was sent to all counsel of record on the same date. No party moved for a new trial. On January 9,1981, judgment was read, rendered and signed in favor of plaintiff, Johnnie L. Darville, and against defendant, Daigle Pontiac-Buick-GMC, Inc. The 1981 judgment referred to the fact that General Motors Corporation had previously been found free of fault as regards the damages suffered by plaintiff and dismissed by judgment signed on the 25th day of July, 1980. Notice of this judgment was sent on January 13,1981. There was no application for new trial filed. A devolutive appeal was taken on April 3, 1981, by Daigle Pontiac-Buick-GMC, Inc. from the judgment of January 9, 1981. No appeal was taken from the judgment of July 25, 1980.

We hold that the appeal taken on April 3, 1981, was untimely and must be dismissed insofar as it affects General Motors Corporation. LSA-C.C.P. art. 1915(1) provides for the dismissal of some of the parties in a suit by a partial judgment as to those parties although the trial court retains jurisdiction to adjudicate the remaining issues between the remaining parties. The judgment signed July 25, 1980, was a partial judgment within the meaning of this provision. To prevent such judgment becoming final, an appeal had to have been taken within the time fixed by law. Wright v. Mark C. Smith & Sons, 283 So.2d 85 (La.1973).

LSA-C.C.P. art. 1974 provides that the seven day delay for a new trial application commences to run on the day after the signing of the judgment or the mailing of the notice of judgment if required. Articles 2123 and 2087 of the Louisiana Code of Civil Procedure provide, respectively, that the thirty and sixty day delays for taking suspensive and devolutive appeals begin to run on the day following expiration of the delay for applying for a new trial if no such application has been timely filed.

Accordingly, the devolutive appeal of Daigle Pontiac-Buick-GMC, Inc., insofar as it affects General Motors Corporation, is untimely since it was not taken prior to September 2, 1980, the deadline for filing a suspensive appeal from the July 25, 1980, judgment, or prior to October 2, 1980, the deadline for a devolutive appeal from the July 25, 1980, judgment.

MOTION TO DISMISS APPEAL AS TO GENERAL MOTORS CORPORATION GRANTED.


author: BOUTALL, Judge. SAMUEL, Judge,

text:
    Mildred Badie, wife of Nolan Ambrose MARSHALL, v. Nolan Ambrose MARSHALL.
    No. 11308.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Baldwin & Haspel, Robert R. Rainold, Robert R. Rainold, Jr., New Orleans, for Mildred Badie, w/o Nolan Ambrose Marshall, plaintiff-appellant.
    Joseph W. Rausch, Stassi & Rausch, and Lisa Waggoner Wall, New Orleans, for Nolan A. Marshall, defendant-appellee.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

On the application of Nolan A. Marshall for writ of certiorari or review of an adverse decision of this court, 390 So.2d 1365, the Supreme Court ordered the following, 396 So.2d 1329:

“Granted. The case is remanded to the Court of Appeal to consider the plea of prescription filed and received by this Court and to consider any other relief appropriate."

In consideration of the plea of prescription filed and received by the Supreme Court, we refer to Code of Civil Procedure, Article 2163 which provides that “The appellate court may consider the peremptory exception filed for the first time in that court * * * * (emphasis ours)”. Although we interpret that article to mean that the appropriate appellate court in which the exception is filed is the one that may consider the exception, apparently by virtue of this order, the Supreme Court has either amended Article 2163 or has interpreted it in some manner beyond the plain wording of the Article. Nevertheless, that Court does have supervisory jurisdiction over this Court and we certainly do not presume to pronounce upon the jurisdiction of the Supreme Court. Accordingly, we shall consider the plea of prescription filed in the Supreme Court in accordance with that mandate.

At the outset, we have considered our prior decision on the question of prescription, and we conclude that it is correct, and that it is in accordance with existing law. Referring however to the plea of prescription as if it were filed in this court, or in the trial court, we conclude that the evidence shows that there were no payments of alimony or child support made by Nolan Ambrose Marshall to Mildred Badie Marshall from April, 1973 to the date of trial of the rule for back alimony. Since Civil Code Article 3538 provides a three year prescriptive period for such a claim, the claimant is entitled to recover alimony due in the period three years prior to filing of her rule.

The amount of alimony was set in a judgment of July 15, 1960 payable to “his wife, for her support and the support and maintenance of the minor children, alimony in the sum of $155.00 per month, payable in equal installments of $77.50 on the 2nd and 17th days of each month. In addition the husband to pay Homestead Installments promptly when due.” The trial judge noted that the Homestead note was $90.57 making a total of $245.57 per month. However the trial judge also attempted to apportion the 1960 judgment into one third of the amount to the wife and two thirds for the children. He then concluded the wife’s share to be $81.86, with 39 months due as of the date of the rule, awarding accrued alimony in the amount of $3,192.52. In our previous judgment we have stated that the trial judge could not so apportion the alimony and that, there being no agreement between the parties to change, the alimony must stand at the rate of $245.50 per month. Dubroc v. Dubroc, 380 So.2d 672 (La.App. 1980); Halcomb v. Halcomb, 352 So.2d 1013 (La. 1977); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir. 1980).

We conclude then that Mrs. Marshall is entitled to the sum of $9,577.23, representing the sum of $245.57 a month for 39 months, and that the judgment of the trial court, as well as our prior judgment, should be amended accordingly.

In response to the second part of the mandate to the Court of Appeal: “To consider any other relief appropriate.”, we do not consider any other relief appropriate.

Accordingly, we amend our prior decree to read as follows:

“For the reasons assigned above, the judgment of the trial court is hereby amended insofar as to provide past due alimony executory in the amount of $9,577.23, plus legal interest beginning from the date when each alimony payment was due until paid, plus $1500 in attorney’s fees to the appellant and to provide future alimony in the amount of $500 per month, and as amended the judgment is affirmed.”

AMENDED AND RENDERED.

SAMUEL, J., dissenting.

SAMUEL, Judge,

dissenting.

I do not disagree with the correctness of the conclusions reached in the majority opinion. However, those conclusions are concerned only with the issue raised by the filing of a defendant exception of prescription in the Supreme Court (apparently in connection with defendant’s application for writs) and, in my view, this court is without jurisdiction to consider that exception. No such exception was filed in the trial court, and although one was filed in this court, it was filed only after the case had been submitted for a decision and after our opinion and decree had been handed down.

Under C.C.P. Art. 927, prescription is a peremptory exception which must be specially pleaded, and we are prohibited from supplying the objection raised thereby. The first paragraph of C.C.P. Art. 2163 reads:

“The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” (Emphasis ours).

The above quoted portion of Article 2163 plainly states we may consider the peremptory exception (including prescription) filed for the first time in this appellate court. But, with equal clarity, it prohibits such consideration unless that exception is pleaded prior to submission of the case for a decision. Here, as has been pointed out, the exception was filed for the first time in this court and then not only after submission, but after the case had been handed down. Thus, while the Supreme Court may very well have jurisdiction to hear the exception filed in that court, we do not.

As courts obtain their jurisdiction over all matters only by virtue of our constitution and legislative acts, the Supreme Court’s “general supervisory jurisdiction over all other courts” does not include authority to confer on other courts jurisdiction not granted by the constitution or the legislature. Here, we not only do not have jurisdiction, the legislature has prohibited us from exercising jurisdiction.

For the foregoing reasons, I respectfully dissent.

      . See LSA-C.C.P. Art. 2.

      . Braswell v. Heartwell, La.App., 234 So.2d 197. Thompson v. Couville, La.App., 372 So.2d 579, is to the contrary, but the Thompson court did not consider or notice C.C.P. Art. 2163.

      . Article 5, § 5(A), La.Const. of 1974.


author: BOUTALL, Judge.

text:
    Leona Marie Landry, wife of Thomas Patrick REED v. Thomas Patrick REED.
    No. 11761.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.

      Reed & Reed, Floyd J. Reed, Trial Atty., New Orleans, for Thomas Patrick Reed, defendant-appellant.
    Steven F. Griffith, Sr., Ltd., Steven F. Griffith, Sr., Trial Atty., Destrehan, for Leona Reed Wolfe, plaintiff-appellee.
    Before Gulotta, Boutall and Schott, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding to the plaintiff and against the defendant lump sums for both past due alimony as well as for the enforcement of a community property settlement contract entered into between the plaintiff and the defendant.

The plaintiff, Leona Landry, and the defendant, Thomas Reed, were married on April 25, 1959. Of this relationship four children were born. Marital relations between these two parties broke down in 1970, resulting in a judgment of separation the following year on January 13, 1971. Subsequently, on October 5, 1972 a judgment of divorce a vinculo matrimonii was entered in favor of the plaintiff, based on living one year separate and apart. This latter decree contained several orders, one of which awarded the care, custody, and control of the four minor children to the plaintiff. Another order required the defendant to pay $60 per week unto the plaintiff in fulfillment of the obligation of alimony and child support plus an additional sum of $93.80 per month to the Jefferson Savings and Loan Association in payment of a mortgage on the home occupied by the plaintiff and the four children. The latter of these two figures was awarded as per a community property settlement agreement entered into between these two parties. On November 2, 1977 the plaintiff brought an action against the defendant to recover past due alimony and child support, as well as for the payments due on the mortgage issued to Jefferson Savings and Loan Association.

Upon trial of this matter, the lower court entered judgment in favor of the plaintiff and against the defendant awarding to her past due alimony in the amount of $3,199.00, the remaining sum due on the mortgage amounting to $5,385.86, and attorney’s fees of $400 to the plaintiff’s attorney. From this judgment the defendant has appealed this matter before us assigning two errors and appellee has answered assigning four errors.

I

The first issue we consider is the enforcement of the particular obligation of the community settlement agreement entered into by notarial act between the parties and forming the basis of the mortgage payment award. The agreement provides as follows:

“And the said Thomas Patrick Reed further agrees to assume the present mortgage balance on the aforesaid described property which is estimated to be reduced from the original sum of Ten Thousand Three Hundred and no/100 Dollars ($10,300.00) to Eight Thousand One Hundred and no/100 ($8,100.00) Dollars due and owing the Jefferson Savings & Loan Association of Gretna, Louisiana and agrees to hold the said Leona Landry Reed harmless from any liability or responsibility therein and the said Thomas P. Reed, Sr., agrees to make the aforesaid payments on the note due to Jefferson Savings & Loan Association each and every month as they become due and to continue payments on a regular monthly basis.
“The properties described above, whether real, personal, immovable or movable are transferred to and accepted by the parties, respectively, subject to the mortgages now outstanding thereon, and subject to the exception above named wherein the said Thomas P. Reed assumes the mortgage due and owing on all of the aforementioned properties.”

The evidence reveals that the plaintiff and defendant entered into a community property settlement agreement on January 13,1971 following a judgment of separation from bed and board. This agreement, in addition to the provisions cited above, provided for an equitable transfer of ownership of the property in the community. The plaintiff transferred to the defendant certain pieces of real estate, various boats, motors and equipment, a stock pledge, a truck, retirement fund and other miscellaneous items. In exchange, the defendant transferred to the plaintiff an automobile, and the community home and furnishings. Additionally, the defendant agreed to assume the outstanding loan on the community home, the provisions of which are cited above. In 1976 the plaintiff sold the community home. At that time the remaining balance on the loan amounted to $5,385.86. Demand was made upon the defendant by the plaintiff to pay this figure but these efforts were to no avail. Consequently, these proceedings were instituted by the plaintiff for the purpose of procuring the loan balance from the defendant. The trial court in its judgment awarded to the plaintiff the loan balance of $5,385.86 in a lump sum plus interest from the date of demand.

Appellant contends the trial judge erred because 1.) there was a verbal agreement between the parties at passage of the act of sale that the balance of the indebtedness was forgiven and 2.) that the sale legally and contractually extinguished the mortgage and, correspondingly, his obligation thereunder.

We do not agree. Although Reed testified that there was a verbal agreement of forgiveness, Mrs. Reed emphatically denied it. Although the trial judge gave no reasons for judgment and did not pronounce upon the credibility of the parties as to this agreement, we believe the record does support a credibility call in favor of Mrs. Reed. Our conclusion is based in part on the equitable exchange of community property, which included the assumption of the loan by the defendant, which took place following the judgment of separation. Proper consideration was given to the defendant in exchange for his act of assumption. Additionally, the language of the agreement indicates that the defendant will make payment on the loan under any circumstances including the situation presented in this case. Our reference here is to the “hold harmless” provision contained in the agreement.

Despite our finding that the obligation of the defendant continues to be viable we believe that he should not be forced to make the payment in a lump sum. The agreement calls for the defendant to make the payments on a monthly basis. Accordingly, we hold that the defendant must make a lump sum payment for those installments due between the time of his last payment and the date of this decision. Thereafter, we order that the defendant be given an option to make payments of $93.80 on a monthly basis to the plaintiff until the balance of the loan is satisfied, or make a lump sum payment for the balance owed.

II

The next issue we consider is that of application of the three year prescriptive period for past due alimony and child support payments as provided in LSA C.C. Art. 3538. It states in pertinent part: “The following actions are prescribed by 3 years; that for arrearages of rent charge, annuities and alimony ...” The trial court in determining the exact amount of alimony arrearage applied a 3 year prescriptive period thereby limiting the plaintiff’s recovery to the amount of unpaid alimony accruing during 1975 and 1977. The plaintiff contends that this application was erroneous in light of the line of jurisprudence which recognizes interruption in the running of the limitation.

In Morasco v. Metcalf, 381 So.2d 901 (3rd Cir. La.App. 1980) suit was filed seeking the recovery of past due child support for the period of 1974 through 1979. The defendant filed an exception of prescription under LSA C.C. Art. 3538 which was sustained by the trial court thereby limiting the amount of the plaintiff’s recovery to the unpaid child support for the period of 1977-1979. During the trial the parties stipulated that periodic payments were made all during the 6 year period of 1974 through 1979 and further that at no time did 3 years lapse between the payment of any of the support payments. Our brothers of the 3rd Circuit reversed the judgment of the trial court holding that the prescriptive period under LSA C.C. 3538 was interrupted and therefore, allowed the plaintiff to recover past due alimony for the entire period of delinquency. The court stated:

“The support payments made by defendant constituted an acknowledgment of his support obligation, interrupting the three-year prescription of Article 3538. Because of the legal interruption, or interruptions, plaintiff’s right to have made executory child support arrearages dating from September, 1974, to February, 1979, had not prescribed when this suit was filed.”

Also see: Davis v. Contorno, 234 So.2d 470 (1st Cir. La.App. 1970); Manning v. Manning, 259 So.2d 358 (2d Cir. La.App. 1972).

Regarding the case before us the evidence which we are presented is very similar to that faced by the court in Morasco v. Metcalf, supra. Here the plaintiff filed suit in 1978 seeking recovery of past due alimony and child support for the period of 1974 through 1977. The trial court in its judgment limited the plaintiff’s recovery of the alimony and child support arrearages to the period of 1975 through 1977 thereby applying the 3 year prescriptive period. The record before us indicates periodic payments were made during the four year period and at no time did 3 years lapse between the making of any of the supports. Instead Reed’s testimony is to the effect that he paid alimony continually. Accordingly, we find that the judgment of the trial court was in error as the prescriptive period was interrupted by the defendant’s payments, and that the award of past due alimony and child support should be based upon the amounts due balanced by the amounts unpaid for the year 1974 as well as 1975 through 1977.

Ill

In our consideration of our next issue, the amount of alimony and child support past due and owing, we find that we are unable to set a precise figure based on the record before us.

First, we point out that because of his application of prescription, the trial judge did not permit full evidence from both parties as to the amount that may have been paid in 1974.

Second, because of the ruling made by the trial judge on whether the parties had changed the alimony award by mutual agreement, there is insufficient evidence in the record to determine the amount due as well as what payments may be applicable against it.

It is Reed’s contention that there were two separate oral agreements between the parties which changed the original alimony judgment. One is that there was agreement that he should pay particular bills owed by Mrs. Reed, such as tuition, clothing, insurance, etc., in lieu of direct payments of money to her. The other is that there was agreement that the alimony payment of $60 per week would be reduced by $15 per week for each child who came to live with him, totaling $30. The trial judge, on the basis of Halcomb v. Halcomb, 352 So.2d 1013 (La.1977) and other cases, ruled that evidence of such agreements was impermissible and that only the court could change the judgment. Accordingly, Reed’s bare statement of such agreements in explanation of his contention that he was current was not contested or even mentioned in questioning Mrs. Reed.

Since the rendition of the trial court’s judgment, the Supreme Court has made it clear in Dubroc v. Dubroc, 388 So.2d 377 (La.1980) that an agreement between the ex-spouses is enforceable. However, in entering such an agreement certain requirements must be met. The court stated:

“For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.”

In fairness to both parties, we conclude that this matter must be remanded to the trial court for an evidentiary hearing to determine whether or not there was an agreement entered into between the parties changing the original judgment awarding alimony and child support. Dependent upon that decision, the trial court must then permit pertinent evidence on the payments made beginning with the year 1974 forward. Additionally we point out that in the event that it is concluded that there is an amount of alimony payments in arrears, that interest thereon should be computed from the date that the arrearage was due until paid. Marshall v. Marshall, 390 So.2d 1365 (4th Cir. La.App., 1980).

IV

The next issue for our consideration concerns the award of attorney’s fees made by the trial court in connection with the rule to make past due alimony executory. LSA R.S. 9:305 provides:

“When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney’s fees and court costs to the prevailing party.”

The trial court in its judgment awarded $400 to plaintiff for attorney’s fees. Under the judgment as rendered below, we certainly would have no quarrel with such an award, and indeed it is well within the bounds of reasonableness. However, because of the necessity to remand this matter to fix the actual amount of past due alimony executory, we believe it to be necessary to similarly remand this issue to the trial court for reconsideration in relation to the determination of award in the forthcoming proceedings.

Accordingly, we affirm that part of the judgment in favor of Leona Marie Landry Reed against Thomas Patrick Reed in the amount of $5,385.86, representing the remaining sum due on the mortgage under their agreement, except that we amend said judgment to grant defendant an option to make a lump sum payment for those installments due between the time of his last payment and the date of this decision, and thereafter to make payments of $93.80 per month until payment of the balance of the loan is satisfied. The remainder of the judgment is vacated and set aside, and this matter is remanded to the trial court for a determination of the amount of past due alimony, attorney’s fees and court costs.

AFFIRMED IN PART, AMENDED IN PART, SET ASIDE AND REMANDED IN PART.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY, v. REED PRINTING & CUSTOM GRAPHICS, LTD., et al.
    No. 11774.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Robert T. Wakefield, Newman & Drolla, New Orleans, for Bank of New Orleans & Trust Co., plaintiff-appellee.
    Floyd J. Reed, Trial Atty., Reed & Reed, New Orleans, for Bryan J. Reed, defendant-appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This appeal arises from a judgment of the trial court awarding to the plaintiff the balance due on a loan made by the plaintiff to the defendant.

The facts before us indicate that the plaintiff, The Bank of New Orleans and Trust Co. (hereinafter referred to as BNO) entered into an installment loan agreement with Reed Printing and Custom Graphics Ltd. (hereinafter referred to as RPCG) on November 26, 1977 wherein the former agreed to lend $8,000 to the latter at the rate of 10% interest. In connection with this loan RPCG gave BNO a negotiable promissory note for the amount of the principal and the interest. This note was endorsed individually by the other defendant in this matter namely Byron J. Reed. RPCG became delinquent in its installment payments in October and November of 1978. Pursuant to the terms of the loan agreement, BNO filed suit against both RPCG and Reed seeking the remaining balance on the loan. Upon trial of this matter the lower court entered judgment in favor of BNO in the sum of $6,814.88 plus interest and attorney’s fees. RPCG was found liable for the principal sum, the interest and the attorney’s fees and Reed was held liable in solido for the principal sum only.

On appeal there are two basic issues presented for our consideration. The first one concerns the contention by the defendants that the trial court committed error in failing to require the plaintiff to fully comply with the defendant’s subpoena duces tecum request. The other one concerns the argument that the lower court improperly applied the Louisiana law of usury.

Regarding the first issue LSA-C. C.P. Art. 1354 permits the trial court to vacate or modify a subpoena duces tecum request if it is unreasonable or oppressive. This article states in pertinent part:

“A subpoena may order a person to appear and/or produce at the trial or hearing, books, papers, documents, or any other tangible things in his possession or under his control, if a reasonably accurate description thereof is given; but the court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive.”

The Louisiana jurisprudence in interpreting this statute has indicated that a subpoena duces tecum request is limited to information that is relevant or necessary to the case before the court. In Re Kohn, 357 So.2d 279, (La.App. 4th Cir. 1979); Keiffe v. La Salle Realty Co., 112 So. 799, 163 La. 824 (1927).

Prior to trial the defendants issued to BNO a subpoena duces tecum requesting not just the records in connection with the loan transaction at issue but also records of any and all transactions entered into between the two parties. This subpoena provided as follows:

“1. Records of any and all loans, renewals of loans, and re-financing of loans had by Bank of New Orleans & Trust Company with Bryan J. Reed and Reed Printing and Custom Graphics, Ltd. from 1974 through the current date.
“2. Records of all payments made by or on behalf of Bryan J. Reed and Reed Printing and Custom Graphics, Ltd. to Bank of New Orleans & Trust Company showing apportionment of payments to principal, interest, late charges and the amounts and dates thereof from 1974 through the current date.”

At trial a representative of BNO merely produced all of the records and documents compiled with respect to the transaction before the court. The defendants asked the lower court for a continuance to permit BNO to comply with the remainder of the request. They argued that the other records were necessary in order to present their defenses of prematurity, failure to give proper credits, and usury. In response to this contention the trial court denied the motion for a continuance and indicated that the other records requested had no bearing and were not necessary for the disposition of this case as they had no relationship to the transaction involved here.

Upon a review of the record before us we find that the trial court did not abuse its discretion. The records presented by the BNO were all that were necessary and relevant to consider the defenses of prematurity, failure to give proper credits, and usury raised by the defendants. Accordingly, we affirm the decision of the trial court which precluded the plaintiff from having to comply with the remainder of the defendant’s subpoena duces tecum.

Regarding the second issue, Louisiana Civil Code Article 2924 provides that usury may be used as a defense to a suit on a promissory note. However, other Louisiana statutes place a limit on the parties who may use this defense. LSA R.S. 12:703 indicates that corporations as well as endorsers of corporate debts may not raise usury as a defense. This statute provides in pertinent part:

“Notwithstanding any other provisions of the law of this state to the contrary, any debtor that is a domestic corporation, a foreign corporation, a partnership in commendam formed pursuant to the laws of this state, a foreign limited partnership, or a partnership all of the partners of which are either corporations, foreign limited partnerships, partnerships in com-mendam or partnerships comprised of corporations, foreign limited partnerships or partnerships in commendam, may agree to pay interest in excess of the maximum rate of conventional interest authorized by the laws of this state, whether in connection with unsecured or secured indebtedness and whether the secured indebtedness is secured, in whole or in part, directly or indirectly, by a real estate mortgage or chattel mortgage on property in this state or is otherwise secured, and as to any such agreement such debtor corporation or partnership shall be prohibited from asserting a claim or defense of usury or of the taking of interest in excess of the maximum rate of conventional interest, and any person, partnership or corporation whatsoever signing as co-maker, guarantor or endorser for such debtor corporation or partnership shall also be prohibited from asserting any such claim or defense.”

With respect to the case before us, we find that the two defendants fall within the class of individuals who may not use usury as a defense. RPCG is a corporation and Reed is an endorser of RPCG’s debt, thereby bringing them within the terms of LSA R.S. 12:703. The trial court properly refused to apply the defense of usury to the corporation, but apparently did apply the defense to the individual endorser limiting his liability to the principal sum. While this was not consistent with R.S. 12:703, plaintiff did not appeal from the judgment.

For the foregoing reasons, we order that the judgment of the trial court be affirmed.

AFFIRMED.