text:
    Harvey T. HAMMOND, et ux., Plaintiffs-Appellants, v. Henry Aster AVERETT, Jr., et al., Defendants-Appellees.
    No. 14811.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Smith & Hingle by Gilmer P. Hingle, Monroe, for plaintiffs-appellants.
    Blaine Adkins, Monroe, for defendants-appellees.
    Before MARVIN, JASPER E. JONES, and NORRIS, JJ.
   MARVIN, Judge.

Plaintiffs appeal a judgment that rejected their demands in a possessory action to a 20 acre fenced tract on which they paid taxes for more than 30 years.

The dispositive issue is whether plaintiffs possessed as owners, quietly and without interruption, for more than one year before they brought the action on August 1, 1979. Cole v. Martin, 343 So.2d 334 (La.App.2d Cir. 1977), writ refused; McCoy v. Toms, 384 So.2d 518 (La.App.2d Cir. 1980), writ denied; Jones v. Skannal, 368 So.2d 774 (La.App.2d Cir. 1979); Matthews v. Carter, 138 So.2d 205 (La.App.2d Cir. 1962). See also CCP 3658, 3659; La.C.C. 3488.

The 20 acres was ostensibly owned by plaintiffs’ Uncle Henry, and was across the road from plaintiffs’ homesite. Plaintiffs cared for Uncle Henry and notified his children when his health failed. About a month after his children removed him to Texas, Uncle Henry died in November 1944. Plaintiffs began their possession, gardening the tract and raising cattle, when Uncle Henry died. After a few years following Uncle Henry’s death, plaintiffs had no contact with his heirs. Plaintiffs received the notices of and paid the annual ad valorem taxes on the property that was assessed to the H. A. Averett Estate, in care of Harvey Hammond, the co-plaintiff in this action. Defendants are the heirs of Uncle Henry.

A possessor whose possession begins other than as owner must do something to make generally known that he has changed his intent and he must prove specifically when he manifested to others his intent to possess as owner. Continued physical possession alone does not suffice to rebut the presumption that the possession remains precarious. CC Art. 3446. Jones, supra, 368 So.2d at p. 777. The character and notoriety of the possession must be sufficient to inform the public and the record owners of the possession as owner. See Cole, supra, 343 So.2d at p. 336, and McCoy, supra.

Substantial testimony of plaintiffs and of plaintiffs’ witnesses support the conclusion that plaintiffs were paying the taxes in lieu of rent and that plaintiffs were simply “using” the land. When a real estate agent of the heirs visited the property in 1978, plaintiffs became disgruntled that the heirs had not paid them any respect or acknowledged what plaintiffs had done to maintain the property.

After the visit by the agent, the plaintiffs did not contact the heirs or declare by their actions or their words that they had changed their intent and were possessing as owners. None of plaintiffs’ witnesses testified that plaintiffs had been heard to claim that they possessed as owners. See Cole and McCoy, supra. In October 1978, the heirs of Uncle Henry opened his succession and placed of record a judgment putting them in possession of the 20 acres.

Under these circumstances, plaintiffs have not rebutted the CC 3446 presumption that their possession remained precarious. For reasons assigned below and summarized here, and at appellants’ cost, judgment is

AFFIRMED.

      . The date of this visit is not readily determined. The real estate agent did not know, but thought that it occurred a few days after one of the heirs contacted him on July 10, 1978, about selling the property. Plaintiff Mr. Hammond did not know the date. Mrs. Hammond thought the visit was made in September when the garden was “dead”. The evidence most favorable to plaintiffs is the agent’s testimony that he understood from plaintiffs’ conversation with him that plaintiffs “felt” that the heirs “owed” them something and that if anybody should “get” the property it should be plaintiffs.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Ollie MITCHELL, Jr., et al., Plaintiffs-Appellants, v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 14816.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      John M. Frazier, Shreveport, for plaintiffs-appellants.
    Beard & Sutherland by Fred H. Sutherland, Shreveport, for defendant-appellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   PRICE, Judge.

Plaintiffs are tenured vocational agricultural teachers employed by the defendant, Caddo Parish School Board. In addition to the salary they received for the regular school session, they were paid a supplemental salary for work performed during the summer months. In June 1977, the Board, without conducting a hearing, changed the supplemental salary formula to conform to the minimum scale provided by state law. The effect of this new salary formula, which became effective on July 1, 1979, was that the increase in plaintiffs’ supplemental salary was not as large as it would have been under the previous formula. There was no change in plaintiffs’ job duties, titles, positions, or classifications. On June 27, 1980, plaintiffs filed this suit against defendant for the difference of what they would have received under the original formula and the amount they were actually paid. After overruling defendant’s exception of no cause of action, the trial court granted defendant’s motion for summary judgment. Plaintiffs appeal, contending the trial court erred in granting a summary judgment because there is a genuine issue of material fact as to (1) whether a change in salary formula without a corresponding change in positions, assignments, job duties, or responsibilities constitutes a “demotion” under La.R.S. 17:441 et seq.; (2) whether such a change constitutes a deprivation of property without due process of law. For the reasons assigned, we affirm.

The supporting affidavit of E. W. Thornton, assistant superintendent of Caddo Parish Schools in charge of personnel and administration, shows there had been no material change in the job assignments, duties, or descriptions for agriculture teachers since 1976. It further shows that plaintiffs’ salaries for each of the years during the period of 1976 through 1980 exceeded the minimum salaries required by state law. Plaintiffs filed no opposing affidavits.

La.R.S. 17:443 provides that a tenured teacher shall not be removed from office or disciplined without a hearing.

La.R.S. 17:444 prevents a tenured teacher from being disciplined, removed, or demoted except in compliance with the provisions of La.R.S. 17:443.

Plaintiffs contend that the reduced increase in their supplemental salary constitutes a demotion as intended by La.R.S. 17:444 because it is a change from a position of higher salary to a position of lower salary. Plaintiffs rely on the decision in Mouras v. Jefferson Parish School Board, 300 So.2d 540 (La.App. 4th Cir. 1974), writ denied 302 So.2d 619 (La.1974), as being favorable to their demand. Our interpretation of Mouras is to the contrary.

In Mouras the Jefferson Parish School Board reduced the local salary supplement of school principals. The principals argued that this was an improper demotion viola-tive of the teacher tenure law. The court concluded that the board’s authority to set teachers’ salaries under La.R.S. 17:81 includes the power to increase or decrease their salaries, except insofar as La.R.S. 17:421 provides a “minimum salary schedule.” The court held the reduction of salaries for an entire category of principals was not a demotion. We agree with the court’s decision in Mouras and find that it is dispos-itive of plaintiffs’ contention in this case. The unopposed affidavits filed by defendant show that the modified salary formula did not produce any change in job duties, titles, positions, or classifications. Both parties agree that the new supplemental salary structure complies with the minimum salary schedule required by state law. Defendant’s action affected an entire class of teachers and not merely one individual.

Plaintiffs’ allegation that they have been deprived of property without due process of law lacks merit. La.R.S. 17:81 authorizes the parish school boards to fix teachers’ salaries. Plaintiffs have no property right or interest in the continuation of the supplemental salary formula which existed prior to July 1, 1977.

For the reasons assigned, the judgment granting defendant’s motion for summary judgment is affirmed. All costs are assessed to plaintiffs.


author: NORRIS, Judge.

text:
    Lorene Hickman MICHAEL, Plaintiff-Appellee, v. Patrick James MICHAEL, Defendant-Appellant.
    No. 14817.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    James L. Fortson, Jr., Shreveport, for plaintiff-appellee.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

Defendant appeals a portion of a judgment on a post divorce rule for recognition of community debts and for distribution of community funds held in escrow after the sale of the family home.

The sole issue presented for determination in this appeal is whether the plaintiff wife is entitled to full reimbursement for the principal and interest payments made by her on the mortgage indebtedness on the home during her residence there subsequent to the parties’ separation. We hold that she is entitled to full reimbursement thereby affirming the ruling of the trial court in this regard.

Plaintiff originally filed a suit for separation in these proceedings on October 12, 1979, alleging that the parties had physically separated on October 8,1979. Contained within her petition was reference to her desire for an amicable resolution of the division of community property and the request that she be allowed the use of the family home until such time as it was sold. On October 8,1979, the trial court signed an order issuing a rule directed to defendant to show cause why he should not pay child support and why plaintiff should not be allowed the use of the family home during the pendency of these proceedings. The resulting judgment on rule signed December 8, 1979, awards plaintiff custody, child support but is silent on her use of the family home.

On December 12,1979, defendant answered the suit and reconvened seeking a separation and a partition of the community property by licitation. Subsequently, plaintiff filed a motion to sever the portion of the reconventional demand seeking the partition which was granted by the trial court.

Thereafter, on January 17, 1980, a trial was held on defendant’s reconventional demand for a separation and judgment was rendered in favor of defendant. While providing for the separation, child support, custody, and visitation, this judgment contains no provision regarding plaintiff’s use of the family home.

On October 10,1980, plaintiff filed a petition for divorce and a judgment of divorce was obtained on February 4, 1981. Our review of the record indicates that the severed portion of the reconventional demand pertaining to the partition of the community was allowed to lie dormant, and that no further action regarding the community property was taken until June 10, 1981, when plaintiff filed the rule resulting in the judgment made the subject of this appeal.

Prior to the filing of this rule, the family home had been sold, and the funds obtained therefrom had been escrowed with Caddo Abstract and Title Company pending a ruling by the trial court regarding their distribution. There is no dispute regarding the fact that plaintiff continued to occupy the family home until it was sold and that she made seventeen payments totaling $5,845.96 from October 12,1979 to March 12,1981, on the mortgage indebtedness.

After considering all of the evidence submitted by the parties, the trial court in oral reasons for judgment relying on the case of Kennedy v. Kennedy, 391 So.2d 1193 (La.App. 4th Cir. 1980), writ refused, 396 So.2d 883 (La.1981), found that plaintiff was entitled to be reimbursed for the full amount of the payments which she made on the mortgage indebtedness from October 12,1979, to March 12, 1981.

Defendant argues that the trial court’s ruling was erroneous in this regard and that plaintiff should only be reimbursed for the amount her payments reduced the principal indebtedness on the mortgage. The main thrust of his argument is that the court in Kennedy, supra utilized faulty reasoning in awarding a wife full reimbursement for mortgage payments after dissolution of the community even though the wife occupied the family home. He further contends that this result is “grossly inequitable” and that plaintiff has been unjustly enriched because she was not only allowed occupancy of the home but that she was also allowed deductions for income tax purposes for the amounts of interest paid to the mortgagee. Defendant suggests that the equitable resolution of this matter would allow plaintiff full credit for the amount which she reduced the principal and would prorate equally between the parties the remaining amounts. We disagree.

We further note in defendant’s brief his continual referral to an ex parte order of the trial court which orders defendant to move from the family home and awards use of that home to plaintiff. A careful review of the record reveals no such order or even a judgment which awards to plaintiff the use and occupancy of the family home. He further argues that he had no choice with regard to the disposition of the property in question until the actual sale of the property occurred. We disagree. The record reflects that he in fact filed a reconventional demand for partition of the community property and that no further action was taken with regard to this partition after the order of severance. Certainly, defendant could have asserted his right to a partition of the property if he did not wish to remain a co-owner with plaintiff. This he chose not to do. Therefore, we find defendant’s arguments to be without merit.

In Kennedy, supra, the court was faced with this identical issue and a similar factual situation. We approve the reasoning of the court in Kennedy and cite the following pertinent language which we feel is disposi-tive of the instant situation:

Once the community of acquets and gains was terminated by the legal separation, and the husband and wife became co-owners, each had an obligation to maintain and preserve the property. Further, we have recognized that a co-owner has the right to use the common property without the obligation to pay rent. Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4th Cir., 1964).
The husband was cognizant a mortgage existed on the community property. He made some payments and was awarded reimbursement. Unless timely payments continued then both spouses as co-owners would have been subject to financial loss by executory process. Monthly mortgage payments are certainly necessary expenditures when considering the preservation of the property. Either spouse herein, or any co-owner of realty, who is dissatisfied with the arrangement by which each has the right to use the common property without payment of rent is entitled to a partition. C.C. Art. 1289; Arcemont, supra; Loret v. Fugler, 71 So.2d 384 (La.App. 1st Cir., 1954).
We therefore conclude that the decision of the District Court was correct in awarding appellee wife full reimbursement for mortgage payments made after dissolution of the community of acquets and gains even though the wife occupied the property.

See also Cue v. Lentz, 411 So.2d 59 (La.App. 4th Cir. 1981).

Accordingly, the judgment of the trial court is affirmed in its entirety, and defendant is cast for all costs of this proceeding.

AFFIRMED.


author: FRED W. JONES, Jr., Judge.

text:
    Gloria ROLLO, Individually and as Administratrix of the Estates of Charles Jefferson Rollo, III and Shelly Michele Rollo, Plaintiff-Appellant, v. Roosevelt DISON et al., Defendants-Appellants.
    No. 14821.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Rehearing Denied May 12, 1982.

      Richard N. Ware, Natchitoches, for plaintiff-appellant.
    Thomas & Dunahoe, Gahagan & Gahagan by Fred S. Gahagan, Natchitoches, for defendant-appellant.
    Brittain & Williams by Joseph Payne Williams, Natchitoches, for defendant-ap-pellee.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In a suit for damages arising out of the alleged murder of her former husband and the father of her two minor children, plaintiff named as a defendant Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau Mutual”), which had issued a homeowner’s insurance policy to R. C. Anderson, whose succession was also a defendant. Subsequently, the executrix of the Succession of Anderson filed an answer and a third party demand against Farm Bureau Mutual.

Farm Bureau Mutual filed motions for summary judgment directed both at plaintiff’s petition and the third party demand, denying coverage under its policy. After judgments were rendered sustaining the motions for summary judgment, plaintiff and third party plaintiff appealed, asserting that (1) the district judge had no authority to grant the motions because a motion to recuse him had been filed, and (2) there existed a genuine issue as to a material fact.

Finding that the district judge had authority to act, that there was no genuine issue as to a material fact and the mover was entitled to judgment as a matter of law, we affirm.

Authority of District Judge to Act on Motions

A motion to recuse District Judge Stephens was filed on April 27, 1981 and was denied by the judge ad hoc on May 11, 1981. Judge Stephens held a hearing on the motions for summary judgment on May 15, 1981 and signed judgments sustaining the motions on May 18, 1981.

On May 19, 1981 this court granted writs to consider the correctness of the judgment denying the motion to recuse Judge Stephens and ordered a stay of proceedings in the trial court pending disposition of that matter. On June 25, 1981 we reversed the judgment denying recusal and ordered the recusal of Judge Stephens. Rollo v. Dison, 402 So.2d 122 (La.App. 2nd Cir. 1981).

Appellants argue that after the filing of the motion to recuse, Judge Stephens had no authority to act in the case until that motion was finally disposed of by this court on June 25,1981, citing as authority for this position Louisiana Code of Civil Procedure Art. 153.

It is apparent from the recited chronology of actions taken in this case that between May 11, 1981 (judgment of judge ad hoc denying motion for recusal) and May 19, 1981 (our issuance of stay order), no motion to recuse the district judge was pending. Therefore, Judge Stephens had full authority to act in this case during this period, including the power to hold the hearing on the motions for summary judgment on May 15, 1981 and to sign the judgments sustaining the motions on May 18, 1981. This argument of appellants is without merit.

Correctness of Judgments Sustaining Motions for Summary Judgment

Plaintiff’s petition contained the following pertinent allegations:

“Art. 5
“On the evening of April 15, 1979, Charles Jefferson Rollo, Jr. was shot and killed by the intentional act of Roosevelt Dison, defendant herein.
“Art. 6
“The said R. C. ‘Pat’ Anderson, defendant herein conspired to have the said Charles Jefferson Rollo, Jr. killed and in fact paid sums of money believed to be $6,000 directly for the purpose of having the said Charles Jefferson Rollo, Jr. killed.”
“Art. 9
“As a result of the unprovoked intentional acts of conspiracy to kill and the actual killing of Charles Jefferson Rollo, Jr., your petitioner and the minor children have suffered the damages set forth more particularly, but not exclusively, hereinafter.”

The homeowner’s insurance policy issued by Farm Bureau Mutual to R. C. Anderson, a copy of which was attached to the motions for summary judgment, specifically excluded coverage for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

La.C.C.P. Art. 966 provides that summary judgments shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The district court minute entry for May 15, 1981 recites:

“The Motion for Summary Judgment by Louisiana Farm Bureau Insurance Company was first considered by the Court and the motion was granted.”

We assume that in connection with his ruling the parties submitted for consideration by the trial judge only the pleadings and the homeowner’s insurance policy attached to the motions for summary judgment.

Appellants argue that at the time of the hearing on the motions for summary judgment there existed a factual dispute as to whether the late R. C. Anderson intended or expected the death of Rollo. This was, of course, a factual dispute raised as a matter of defense by the Succession of Anderson in order to escape liability to plaintiff. However, for the purpose of the motions for summary judgment, the mover did not assert that factual dispute. On the contrary, it proceeded on the assumption that the allegations of plaintiff’s petition with reference to the acts of R. C. Anderson were true and argued that, as a matter of law, even if those allegations were proven, its insurance policy did not provide coverage. Consequently, the trial judge correctly found that there was no genuine issue as to a material fact as between the mover on one hand and the plaintiff and third party plaintiff on the other hand. The remaining question is whether, assuming proof of the alleged facts with reference to Anderson at the trial on the merits, would plaintiff be entitled to judgment against Farm Bureau Mutual under its policy as a matter of law?

Plaintiff seeks civil damages from the Succession of Anderson for an alleged act of criminal conspiracy, which is defined in La.R.S. 14:26 as “the agreement or combination of two or more persons for the specific purpose of committing any crime.” With its express exclusion of coverage for an intentional act, the homeowner’s insurance policy in question obviously does not provide coverage for damages resulting from an insured’s act of criminal conspiracy.

Appellants argue, however, that under the allegations of plaintiff’s petition, Anderson might have been held vicariously liable by the trier of fact, in which case the homeowner’s insurance policy would have provided coverage.

La.C.C. Art. 2324 provides:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

As pointed out in Miller v. Keating, 339 So.2d 40 (La.App. 3rd Cir. 1976):

“The words ‘assists’ and ‘encourages,’ as used in Article 2324 of the Civil Code, contemplate acts performed pursuant to a conspiracy which cause injury or damage, (citations omitted)
“If a conspiracy is conceived and executed and a private injury results, the person injured has a cause of action against all of the conspirators. The action is for damages caused by acts committed pursuant to a formed conspiracy, and all of the conspirators will be regarded as having assisted or encouraged in the performance of these acts.
“We conclude, therefore, that defendant Guillet assisted or encouraged in the commission of the battery on plaintiff Miller, and that he is answerable, in soli-do, with the other defendants for the damage caused by that act.”

If the allegations of plaintiff’s petition relating to a conspiracy on the part of Anderson were proven, his succession would be solidarily liable to plaintiff because of Anderson’s intentional acts rather than vicariously liable because of Anderson’s relationship with the other defendants. Therefore, this argument of appellants also is without merit.

To summarize with reference to the motions for summary judgment, there was no genuine issue as to a material fact and mover was entitled to judgment as a matter of law. For these reasons we affirm the judgments of the district court sustaining the motions for summary judgment, at appellants’ cost.

      . “Until a judge has recused himself, or a motion for his recusation has been filed, he has full power and authority to act in the cause.”


text:
    Nancy Van Hoose MATHEWS, Plaintiff-Appellee, v. Michael L. MATHEWS, Defendant-Appellant.
    No. 14823.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Walker, Feazel & Tooke by Catherine M. Estopinal, Shreveport, for defendant-appellant.
    Evans, Feist, Auer & Thompson, A Professional Law Corp. by George H. Mills, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The principal question posed by this appeal is whether the trial judge was correct in holding that the parties had not agreed to a reduction in child support payments after one of the children reached the age of majority.

By judgment dated June 8, 1977, defendant Mathews was ordered to pay to his former wife $245 per month for the support of their two minor children. On June 22, 1981 the former wife filed a rule against Mathews seeking to make executory past due child support payments allegedly owed under that judgment. After a hearing on the rule, the trial judge rendered judgment in favor of plaintiff and against Mathews for past due child support in the amount of $2485 and fixed plaintiff’s attorney fee award at $100.

Mathews appealed, arguing that he owed no more than $1165 in past due child support, because of an alleged agreement between him and his former wife to reduce child support payments by one-half when their daughter became 18 years of age in August 1980.

Plaintiff answered the appeal, asking (1) that the district court judgment be amended to award interest on the past due child support from date of judicial demand; (2) for an increase in the attorney fee award, both for legal services rendered in the trial court and on appeal; and (3) for damages for frivolous appeal.

For the reasons hereinafter assigned, we amend the trial court judgment to allow interest on each past due child support payment from due date until paid and to increase the attorney fee award for legal services rendered on appeal and, as amended, affirm.

Amount of Past Due Child Support

A parent may not unilaterally reduce child support payments by a proportionate amount because one of his children reaches the age of majority. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). Further, where a parent is awarded child support during a child’s minority, that parent is the proper party to sue for past due child support under the judgment even though the child has reached the age of majority. Halcomb, supra.

On the other hand, it is now settled that a spouse may agree to suspend his right to compel the parent without custody to turn over to him in advance money necessary for the child’s maintenance provided “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.” Dubroc v. Dubroc, 388 So.2d 377 (La.1980). Also see Pierce v. Pierce, 397 So.2d 62 (La.App. 2d Cir. 1981).

The first issue to be resolved here is whether the parties clearly agreed to a reduction in child support payments. Mathews testified that he and plaintiff verbally agreed during a conversation at Kelly’s Truck Stop in Caddo Parish in August, 1980 to reduce his child support payments by one-half because their daughter had just become 18 years of age. Plaintiff admitted that she and her former husband engaged in conversations concerning possible reduction of child support because their daughter had reached the age of majority, but testified that she expressed an unwillingness to make such an agreement until defendant caught up on his delinquent child support payments. Be that as it may, it is undisputed that plaintiff subsequently refused to sign a written agreement, providing for the reduction, submitted to her by defendant.

In oral reasons for judgment, the trial judge concluded that defendant had not proved the agreement “although there were probably discussions about it.” Based upon our review of the record, we are unable to say that the trial judge was clearly wrong in this ruling. Therefore, the judgment is affirmed insofar as it fixes the amount of past due child support.

Interest on Past Due Child Support

“The court shall award interest in the judgment as prayed for or as provided by law.” La.C.C.P. Art. 1921.

Under our law, legal interest is due on each past due installment of child support from due date until paid. Miller v. Miller, 321 So.2d 318 (La.1975); Weeks v. Weeks, 349 So.2d 1008 (La.App. 2d Cir. 1977).

Mathews argues that plaintiff is not entitled to interest on the past due child support because she did not pray for this in her rule nor was this item brought up at the trial.

La.C.C.P. Art. 862 provides in part:

"... a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

There is no question but that plaintiff is entitled to legal interest on each past due child support payment from due date, even though not specifically prayed for. We accordingly amend the lower court judgment to so provide.

Attorney Fee Award

The attorney fee award of $100 to plaintiff for legal services rendered in the trial court is obviously on the low side. However, since the trial judge was apparently convinced that Mathews’ impecunious condition even prevented his securing legal representation, we cannot say that the award constituted an abuse of the trial judge’s discretion under La.R.S. 9:305.

Taking into consideration pertinent factors in the record and noting that Mathews’ financial condition has apparently improved to some extent since he has retained legal counsel for representation on appeal, we fix the attorney fee award to plaintiff for legal services on appeal at the sum of $200, and amend the judgment accordingly.

Claim for Damages for Frivolous Appeal

Damages for frivolous appeal, as requested by appellee, are awarded under La.C.C.P. Art. 2164 only when it clearly appears that the appeal was taken solely for the purpose of delay or that counsel for the appellant does not seriously believe in his legal position. Goad v. May, 376 So.2d 340 (La.App. 3rd Cir. 1979); Frank & Co., Inc. v. Devillier’s Foodliner, Inc., 365 So.2d 501 (La.App. 4th Cir. 1978). Since we are not convinced that this appeal falls into either of those categories, we reject the demand for damages for frivolous appeal.

Decree

For the reasons explained, we amend the judgment of the district court to award plaintiff legal interest on each past due child support installment from due date until paid and to increase the attorney fee award to $300. As amended, the judgment is affirmed, at appellant’s cost.

      . Claiming indigency, Mathews represented himself at the trial of the rule, but is represented by legal counsel on appeal.

      . The district court judgment omits any reference to legal interest on the past due child support award.


text:
    Curtis R. CRAIG and Bertha T. Craig, Plaintiffs-Appellants, v. ALBERTSON’S SOUTHCO, INC. and Oconomowoc Canning Company, Defendants-Appellees.
    No. 14825.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley, by Julie Mobley, Shreveport, for defendant-appellee Oconomowoc Canning Co.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiffs instituted this suit against defendants for damages consisting of physical distress and suffering, mental anguish, embarrassment, and humiliation resulting from the discovery of a worm in a can of corn they intended to serve at a dinner party. The can was purchased at Albert-son’s and manufactured by Oconomowoc. Oconomowoc filed an exception of no cause of action contending that under Louisiana jurisprudence a plaintiff can recover from the manufacturer of packaged food only if the contents are consumed and the consumption causes an injury. The trial court sustained the exception, and plaintiffs appeal. We affirm.

Plaintiffs admit there are no Louisiana cases allowing recovery for the observation of foreign substances in food or beverage. The jurisprudence has required that for plaintiffs to recover in these cases, the plaintiffs must prove the contents were consumed which caused injury. See Le-Blanc v. Louisiana Coca-Cola Bottling Co., Ltd., 221 La. 919, 60 So.2d 873 (La.1952); Banks v. Jefferson Bottling Co., 249 So.2d 228 (La.App. 4th Cir. 1971); Reid v. Clearfield Cheese Company, Inc., 307 So.2d 115 (La.App. 1st Cir. 1974). Plaintiffs allege, however, that defendants’ fault caused them humiliation and nausea and is com-pensable under La.C.C.Art. 2315.

In all sales in Louisiana there is an implied warranty that the object sold is fit for the purpose intended. Williams v. Ring Around Products, Inc., 344 So.2d 1125 (La.App. 3d Cir. 1977). A processor, bottler, or packager of food and drink for human consumption warrants it to be absolutely free from harmful or deleterious substances, and that the product is safe for human consumption. English v. Louisiana Creamery Inc., 181 So.2d 800 (La.App. 1st Cir. 1965); Demars v. Natchitoches Coca-Cola Bottling Co., Inc., 353 So.2d 433 (La.App. 3d Cir. 1977), writ denied 354 So.2d 1384 (La.1978).

The implied warranty of fitness in such cases is designed to protect consumers from consuming food products containing deleterious substances and is not intended to protect against injuries caused by the mere observation of such substances. The trial court was therefore correct in sustaining the exception of no cause of action.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant.


author: HALL, Judge.

text:
    SUCCESSION OF Francis Hale BAGWELL.
    No. 14830.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.

      James Sharp, Jr., Monroe, for plaintiff-appellant, H. E. Martin.
    John S. C. Massey, West Monroe, for defendant-Administratrix of The Succession of Francis Hale Bagwell.
    Before PRICE, HALL and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Alleging that the decedent left a will which could not be located because it was destroyed, misplaced, or suppressed by a nephew of the decedent, plaintiff Martin petitioned to probate the alleged will which named him and his wife as legatees. An unsigned copy of the will was attached to plaintiff’s petition. The district court sustained defendants’ plea of judicial estoppel based on a prior judgment rejecting the petition of plaintiff’s wife to probate the alleged will, but that ruling was reversed on appeal and the action was remanded for trial. Succession of Bagwell, 391 So.2d 919 (La.App. 2d Cir. 1980). After trial, the district court found that plaintiff failed to prove the will was destroyed by the nephew and further found that the will was destroyed by the decedent himself prior to his death. From a judgment rejecting plaintiff’s demands, he appealed. We affirm.

A lost or accidentally destroyed will may be probated if it can be established that the testator made a valid will, what the content or substance of the will was, and that after a diligent search the will could not be found and was never revoked. Airey v. Airey, 262 La. 383, 263 So.2d 330 (1972). The fact that a will shown to have been in the possession of the testator cannot be found after the testator’s death gives rise to a presumption that the testator revoked the will by destroying it. This presumption may be rebutted by proof that the testator did not revoke the will. In re Succession of Nunley, 224 La. 251, 69 So.2d 33 (1953); Succession of O'Brien, 168 La. 303, 121 So. 874 (1929); Succession of Franks, 170 So.2d 178 (La.App. 4th Cir. 1964), writ denied, 247 La. 361, 171 So.2d 478 (1965).

These rules apply to an action to probate a will where it is alleged that the will cannot be located because it has been destroyed by someone other than the testator. Clear and convincing proof that a person other than the testator destroyed the will without the direction, consent, or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it.

Decedent died July 18,1979 survived by a number of collateral relations — brothers, sisters, nieces, and nephews. It was established that in October 1978 decedent executed a statutory will at the office of his attorney, bequeathing all of his property to Mr. and Mrs. Martin who were decedent’s close friends and who had provided attention to him for many years. It was further established that on May 29, 1979 decedent went to the attorney’s office, expressed dissatisfaction with the Martins and an intent to change his will, and obtained either the original or an executed duplicate copy of the will from the attorney. The evidence shows that decedent had a falling out with plaintiff about that time, probably relating to the fact that plaintiff and his wife had separated.

Four witnesses testified decedent told them shortly before his death that he had torn up the will. One witness was the nephew accused of destroying the will who would inherit a small fractional interest in decedent’s modest estate if decedent died intestate. The other witnesses were a neighboring couple without any interest in the matter, and plaintiff’s son, whose interest would seem to lie with the plaintiff.

Plaintiff’s wife testified that decedent obtained from her a copy of the will, stating that he intended to eliminate plaintiff from the will, but that decedent later told her he had not changed the will. Decedent’s brother and his wife testified that decedent told them shortly before his death he still had the will and had “something” to take care of Mrs. Martin.

It was established that the nephew had possession of decedent’s metal strongbox where he kept his papers and records, and that it was given to the nephew by the decedent when the nephew, at decedent’s request, took him to the hospital during his last illness. There was some evidence that a window in the house had been broken during decedent’s illness and that a piece of furniture had been tampered with at some unestablished time, but the evidence did not establish that the house had been ransacked as contended by plaintiff.

Plaintiff’s evidence was insufficient to rebut the presumption that the decedent destroyed the will. Plaintiff proved that the decedent made a valid will and proved the content of the will, but he failed to prove the will was not revoked by the decedent. In fact, as found by the trial court, the preponderance of the evidence is that the decedent, because of the falling out with plaintiff, obtained the will or a signed copy from the attorney and destroyed it. The nephew had the opportunity to destroy the will if it existed at the time plaintiff went to the hospital, but there is no evidence that he did so or that he had any significant reason to do so.

Plaintiff contends the trial court should have granted his motion for new trial based on allegations of newly discovered evidence which consisted of the testimony of additional persons that decedent told them he was leaving his property to the Martins and the testimony of one of the witnesses at the trial that he later remembered the nephew telling him after decedent’s death that there was a will.

LSA-C.C.P. Art. 1971 provides that a new trial shall be granted where a party has discovered, since the trial, evidence important to the cause which he could not, with due diligence, have obtained before or during the trial. The record does not indicate any reason why the additional evidence could not have been obtained prior to trial, nor does it appear that the additional evidence would be sufficient to change the result in this case. We find no error in the trial court’s denial, after a hearing, of the motion for new trial.

The judgment of the district court is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: SEXTON, Judge.

text:
    Ruth Davis LINDSAY, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, et al., Defendant-Appellee.
    No. 14833.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Rehearing Denied May 12, 1982.

      Peters, Ward, Bright & Hennessy by J. Patrick Hennessy, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by George T. Allen, Jr., Shreveport, for defendant-appel-lee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The plaintiff, Mrs. Ruth Davis Lindsay, appeals a trial court judgment rejecting her claim against the defendant, Brookshire Grocery Company, for damages resulting from the plaintiff’s fall in the defendant’s store. In this “trip and fall” case, the trial court found that the plaintiff failed to prove a causal relationship between her injuries and any negligence on the part of the defendant. We affirm the trial court’s judgment.

It is uncontested that on August 29,1980, the plaintiff, while attempting to exit the defendant’s store, fell and received severe injuries. Mrs. Lindsay contends that she tripped over a loose strip of metal molding located near an automatic entrance door, and fell against a door frame sustaining injuries both from the door frame and from a bolt that protruded from the door frame. The plaintiff alleges that both the loose metal strip and the protruding bolt were defects such as would make the defendant strictly liable for the damage caused by these defects. LSA-C.C. Art. 2322; Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978), rehearing denied.

Under the terms of Article 2322, several requirements for the imposition of liability must be met: (1) there must be a building; (2) the defendant must be its owner; and (3) there must be a “ruin” caused by a vice in construction or a neglect to repair, which occasions the damage sought to be recovered. Olsen, supra.

In applying LSA-C.C. Art. 2322, we find that obviously a building existed and that the building was owned by the defendant. We further find (the trial court did not reach the issue) that the plaintiff has proven that a defect or “ruin” existed and was caused by the defendant-owner’s neglect to repair. The final requirement, that the defect or “ruin” be the cause of the injuries, remains.

With regard to causation, it has been held that due to an affirmative duty owed by shopkeepers to their customers to use ordinary and reasonable care to keep aisles, passageways and floors in reasonably safe condition, once the plaintiff has established that a hazardous condition in the store existed and that it caused his injury, an inference of negligence arises and the burden of proof falls upon the shopkeeper to show that he was not negligent. Albritton v. J. C. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir. 1980), rehearing denied.

However, the initial inquiry is whether any causal relationship existed between the harm with resulted to the plaintiff and any allegedly negligent conduct on the defendant’s part. See Ganey v. Beatty, 391 So.2d 545 (La.App. 3rd Cir. 1980), rehearing denied; Lear v. United States Fire Insurance Co., 392 So.2d 786 (La.App. 3rd Cir. 1980). Without a causal relationship between the harm suffered and any alleged negligent conduct on defendant’s part there can be no recovery.

In the instant case, we find that the evidence does not establish the necessary causal relationship between the injuries plaintiff suffered and the defect that existed in the defendant’s premises.

Mrs. Lindsay testified that she did not see what caused her fall. It was only after re-entering the defendant’s store later that day or later that week, (the testimony is not clear), that she espied the loose metal strip near the entrance door and deduced that this must have been the cause of her fall. She testified that she had to pass over the strip and in so doing her foot was caught and she fell against the nearby exit door frame. She found a protruding bolt located on the left side of the exit door frame and opined that it was this bolt that she fell against thus receiving her cuts and gashes, The plaintiff provided no witnesses as to the actual circumstances of the fall.

The defendant, on the other hand, produced two witnesses who saw Mrs. Lindsay fall. Both witnesses were employees of the defendant who were on duty near the place where Mrs. Lindsay fell.

Allen Turner, the defendant’s store manager, stated that he saw the plaintiff begin to stumble at a point well past the location of the loose metal strip. He further testified that the plaintiff fell against the right side of the exit door’s frame and then fell to the floor. Mr. Turner did not see what caused the plaintiff’s fall.

Becky Eck, a cashier, testified that she saw the plaintiff walking normally toward the exit door. At the time of this observation, the plaintiff was between the pneumatic mats located at the entrance and exit doors. The plaintiff had successfully negotiated the mat where the loose metal strip was located and was well beyond that point when, according to Mrs. Eck, the plaintiff’s shoe “turned under her” and she stumbled and fell against the right side of the exit door’s frame. Mrs. Eck testified that the fall was caused by Mrs. Lindsay’s “shoe turning under her” thus causing the plaintiff to lose her balance and fall. Corroboration of Mrs. Eck’s testimony was supplied by plaintiff’s witness, Mrs. Mary Giles, who testified that the plaintiff has difficulty in walking. Mrs. Giles stated that the plaintiff suffers from a slightly deformed toe which caused her some difficulty in walking and had apparently caused her to stumble previously on several occasions.

The trial judge, after considering the evidence, stated in his oral reasons for judgment that the evidence presented did not support a finding that the fall was caused by the existence of any defect. The trial court did not reach the issue of the existence of a defect because of its decision as to lack of proof of causation. On appeal we have determined that the evidence was sufficient to support a finding that a defect did exist but, as did the trial court, we find that the plaintiff failed to prove a causal relationship between the injuries she suffered and the defect that was shown to exist.

For the reasons assigned we affirm the trial court’s decision at the plaintiff’s cost.

AFFIRMED.


text:
    James Douglas CARTER, Plaintiff-Appellee, v. Vikki Elizabeth Ebarb CARTER, Defendant-Appellant.
    No. 14834.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Rehearing Denied May 12, 1982.

      James E. Franklin, Jr., Shreveport, for defendant-appellant.
    James L. Fortson, Shreveport, for plaintiff-appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

Mrs. Carter appeals from a judgment awarding Mr. Carter a divorce and custody of their three-year-old daughter, Kelly. Finding no error or clear abuse of discretion by the trial court, we affirm the judgment.

On appeal, appellant assigns as error (1) the granting of a divorce on the grounds of appellant’s adultery; (2) the failure to grant appellant a divorce on the grounds of appellee’s adultery; (3) the signing of an ex parte order granting provisional custody to Mr. Carter at the time he filed suit and the failure of the trial court to vacate the order; and (4) the granting of custody to appellee, particularly in that the trial court’s decision was based primarily on inadmissible hearsay evidence of the criminal record of the man whom appellant was seeing.

Facts

The parties were married in September 1971 and their daughter, Kelly, was born on June 24, 1978. In the spring of 1980 appellant’s attitude toward her husband became cool and withdrawn. On a few occasions she came in late at night without satisfactory explanation, and in April she left home with her daughter and filed suit for separation. Appellant moved to a mobile home and would not disclose to appellee where she was living.

In May, appellee followed his wife from her place of work to her trailer home and then to another mobile home where she was met by a man, later identified as Jerry Johnson. Appellant and her daughter spent the night at the man’s home.

Appellee then hired a private investigator who observed appellant, accompanied by her daughter, go to Johnson’s home on three occasions and spend the night. In the latter part of May, appellee confronted appellant with these facts and had the private investigator tell appellant what he had learned, including the fact that Johnson had a criminal record. The parties agreed to reconcile and appellant promised she would break off her affair with Johnson.

Within a few weeks, appellant’s attitude toward appellee cooled and he suspected she was again seeing Johnson. Appellee followed appellant one day and saw her meet Johnson at a residence, later established to belong to Johnson’s father, where she went inside with Johnson and stayed for about an hour. Appellee again employed the investigator, who saw appellant meet Johnson at a restaurant at lunch time on one occasion and saw them embrace and kiss outside the restaurant. The investigator saw them meet on two or three other occasions at Johnson’s father’s residence at noon or in the late afternoon after appellant left work. On each occasion appellant and Johnson went into the residence and stayed 45 minutes to one hour.

Appellee contacted his lawyer and a petition for divorce was prepared. On the morning of July 17 appellee picked his daughter up at the nursery, the petition was filed, an order granting provisional custody to appellee was signed, and appellant was served at work. The parties have lived separate and apart since that time.

Appellant filed a reconventional demand and a rule for provisional custody was issued. The rule was continued and then dismissed by appellant’s counsel because of conflicts in his schedule. Thereafter, other pleadings were filed by the parties, various rules were scheduled for trial and continued, and appellant employed new counsel. All issues were ultimately tried in August 1981, more than a year after suit was originally filed.

At trial, in addition to the facts recited above, it was established that appellee is a stable employee at a manufacturing plant with a good income. He is an attentive father with a loving relationship with his daughter, who is happy and well adjusted. For several months appellee has been dating Gail Cummings, a widow with one child, and they plan to be married as soon as legally possible. They attend church regularly with their children. The daughter stays at a nursery while appellee works and when his work and other activities require it, the daughter stays with competent babysitters, sometimes overnight.

There was evidence by a private investigator that appellee spent several nights at the home and lake camp of another lady before he started dating Mrs. Cummings. The accuracy of the investigator’s testimony was seriously impeached by substantial evidence that appellee was elsewhere at the times specified by the investigator and it was established that on the occasions when appellee spent the night at the lady’s house and camp there were a number of other family members present.

It was also established that appellant had been a good, loving mother and, while the parties lived together, was the nurturing parent who primarily attended to the child’s needs. At time of trial, she was employed as a secretary and was living with her family, mother, father, brothers and sisters, and their children. Appellant has always attended church regularly.

There was evidence that appellant was seen with Jerry Johnson on several occasions after suit was filed, as late as a few weeks prior to trial. It was established that Johnson was arrested in July 1980 and in December pled guilty to one count of distribution of marijuana for which he was sentenced to six years in prison. He remained free on bail pending appeal, having reserved his right to appeal on a motion to suppress which had been denied. A “rap sheet” showing several previous arrests and one previous conviction for burglary was introduced into evidence over the objection of appellant’s counsel.

Action of the Trial Court

After several days of trial, the district court, in oral reasons for judgment, found in spite of appellant’s denials, that she had committed adultery with Johnson on several occasions prior to the reconciliation in May 1980, but that these acts were forgiven when the parties reconciled. The court further found that because of their previous adulterous relationship it was reasonable to infer that appellant and Johnson committed adultery in their later clandestine meetings, and that appellee was entitled to a divorce on the grounds of adultery. The court found that the evidence was insufficient to prove adultery on the part of appellee. On the issue of custody, the court found that both parents were capable of providing a good home for the child. The factor that tipped the scales in favor of appellee was appellant’s continued association with Johnson and the likelihood that the child, if in appellant’s custody, would be adversely influenced by that association. The court also emphasized the beneficial effect of ap-pellee’s planned marriage to the woman he had been dating, whom the court found to be a person of outstanding character who would assist in providing an exemplary home for the child.

The judgment rendered granted appellee a divorce, held appellant was not without fault thus precluding permanent alimony, and granted custody of the child to appellee subject to reasonable visitation rights of appellant.

The Divorce

Appellant argues that the circumstantial evidence presented, particularly the evidence as to her brief meetings with Johnson after the reconciliation, was insufficient to establish adultery on her part. She further argues that she proved adultery on the part of appellee.

By supplemental petition, appellee prayed for a divorce on the ground of having lived separate and apart for more than one year. LSA-R.S. 9:301. This ground was established and supports the judgment granting the divorce. Accordingly, it is unnecessary for this court to review the evidence of appellant’s adultery to determine whether that evidence was sufficient to establish grounds for divorce.

Appellant does not seriously question on appeal the trial court’s finding that she was not free from fault and, therefore, precluded from obtaining permanent alimony. In this regard we note that the evidence convincingly established her adultery prior to the reconciliation and that she continued to see Johnson after the reconciliation. Her fault brought about the dissolution of the marriage.

Appellant’s evidence of appellee’s association with a lady at her home and camp was impeached to a great extent, was otherwise explained as involving no improper conduct, and fell far short of proving adultery on his part.

Custody

Appellant argues that the order giving appellee provisional custody of the child was not made after inquiry by the judge who granted the order as required by LSA-C.C. Art. 146, and that this order, together with the long delay before the custody issue was tried, gave appellee an unfair advantage in the custody battle. Appellant further argues that it is in the best interest of the small daughter for custody to be granted to her mother, who was the child’s nurturing parent prior to the separation. It is further argued that the trial court erred in considering inadmissible hearsay evidence of the criminal record of the man appellant was seeing.

The scope of the inquiry made by the trial judge who signed the order of provisional custody at the time the suit was filed is not disclosed by the record, although it is clear that any inquiry made was ex parte. A district judge may, upon an ex parte showing of good cause, grant temporary custody to one parent pending trial of a provisional custody rule. However, LSA-C.C. Art. 146 contemplates an adversary inquiry before provisional custody is granted and the ex parte custody order should not have been signed without, at the same time, ordering the issuance of a rule to show cause fixing a hearing on the matter of custody for a certain date in accordance with LSA-C.C.P. Arts. 2591, et seq.

Within a week of the signing of the provisional custody order, however, a reconven-tional demand was filed on behalf of appellant and, on her petition, a rule to show cause was issued to be heard a few days thereafter. The custody matter could have been heard at that time but was continued and then dismissed at the request of appellant’s counsel. Any prejudice to appellant flowing from the ex parte order was of only a few days duration. The record does not show that the delay in getting the custody matter to trial resulted from any dilatory or otherwise improper tactics by counsel for appellee or from any action or nonaction on the part of the trial court.

In any event, the issue facing the trial court at trial more than a year after the suit was filed, and facing this court upon appellate review some 20 months after suit was filed, was and is the granting of permanent custody in accordance with the best interest of the child. LSA-C.C. Art. 157.

We find no abuse of discretion by the trial court in awarding custody to the father. The court carefully weighed the factors favoring each parent and articulated its reasons for considering it to be in the child’s best interest to award custody to the father. We find no fault with the trial court’s reasons.

The court noted that this was one of the most difficult cases with which it had been faced. It found that both parents dearly love the child and that the child would receive the best of care from either of them. The court recognized the advantage appellee had because he had custody of the child for the year the suit had been pending, giving him the chance to cement a relationship with his daughter. The court found that prior to the separation it was the mother who spent the most time with the child, but thereafter the father made himself very available to Kelly.

The trial court recognized that normally little girls should be with their mother and that the maternal grandparents stood behind appellant to assist with Kelly. On the other hand, the court was impressed with the character of appellee’s fiancee who would love and help care for Kelly.

The decisive factor to the trial court was appellant’s continued association with Johnson who, during the pendency of this proceeding, had been sentenced to six years in the penitentiary, but was yet free on bail. The court noted that had appellant heeded advice to discontinue contact with Johnson there would have been no breakup of the marriage or fight over custody. The court stated that Kelly should not be subjected to the type of influence inherent in appellant’s relationship with Johnson.

While some of the evidence presented as to Johnson’s criminal record was hearsay and perhaps should not have been admitted into evidence, the trial court had before it competent evidence of Johnson’s recent conviction and sentence. The minutes of the sentencing court reflected a prior conviction. No evidence was presented to show that any of this information was inaccurate. The facts supported by competent evidence were sufficient to substantiate the trial court’s determination that appellant’s continued association with Johnson could have a detrimental influence on the child should appellant be granted custody.

We find no error or abuse of discretion in the best interest determination made by the trial court.

Decree

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Elbert L. BONNETTE, Jr., Plaintiff-Appellant, v. CALDWELL PARISH POLICE JURY, Defendant-Appellee.
    No. 14836.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Clyde Lain, II, Monroe, for plaintiff-appellant.
    Don C. Burns, Dist. Atty., Columbia, for defendant-appellee, Caldwell Parish Police Jury.
    Marshall W. Wroten, Sharon F. Lyles, L. Gordon King by James B. Frederick, Jr., Baton Rouge, for defendant-appellee, Louisiana Dept, of Transp. & Development.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   HALL, Judge.

Plaintiff appeals from the judgment of the trial court annulling a default judgment entered against the State of Louisiana through the Department of Transportation and Development (hereinafter referred to as the Department) for plaintiff’s failure to comply with the notice requirements of LSA-C.C.P. Art. 1704. We affirm.

Plaintiff filed suit against the Caldwell Parish Police Jury seeking specific performance of a compromise and settlement agreement and damages for the defendant’s breach of the agreement. By amended and supplemental petition filed October 15, 1980, the plaintiff added the Department as a party defendant since the Department was also a party to the compromise and settlement agreement.

The agreement resulted from a suit filed by the plaintiff seeking a judgment ordering the police jury and the Department to construct an access road from a blacktopped public highway to plaintiff’s camp house near the Columbia locks and dams on Oua-chita River. In return for the plaintiff’s dismissal of the suit, the police jury agreed to construct an access road to plaintiff’s property and to maintain that road. The Department agreed to reimburse the police jury for all costs of construction incurred in building the access road.

In the present suit, the Department failed to answer plaintiff’s petition, and on January 29,1981 a preliminary default was entered against it. On January 30,1981 the Department filed exceptions of no cause or right of action and of vagueness. A judgment overruling these exceptions was rendered on April 12, 1981. The Department still failed to answer plaintiff’s petition and, consequently, on May 28, 1981 the plaintiff confirmed a default against it. On June 10, 1981 the Department then filed a motion to annul this judgment on the basis that the plaintiff failed to comply with the requirements of LSA-C.C.P. Art. 1704. The court granted the state’s motion and declared the default judgment absolutely null.

LSA-C.C.P. Art. 1704 reads as follows:

“A. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of default against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the minute entry and the petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails. In addition the return receipt shall be attached to the affidavit which was filed in the record.
“B. If no answer is filed during the fifteen days immediately following the date on which the attorney general or the first assistant attorney general received notice of the default as provided in Subsection A of this Section, a judgment by default entered against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article 1702.”

It is not disputed that plaintiff did not comply with the requirements of Article 1704. Plaintiff argues that the article is inapplicable since the Department had actual knowledge of the pendency of the suit. Plaintiff also argues that the statute is inapplicable because this case had been specifically assigned to an attorney for the Department of Transportation and Development and was not being handled by the attorney general’s office. Plaintiff’s arguments have no merit. The language of the statute is clear and unequivocal and admits of no exceptions. It is clear that the article was added to the Code of Civil Procedure to afford the state additional protection against the rendition of default judgments against it; the article was apparently designed to prevent just what happened in this case.

A final judgment shall be annulled if it is rendered against a defendant against whom a valid judgment by default has not been taken. LSA-C.C.P. Art. 2002. Since Article 1704 must be complied with prior to the confirmation of a judgment of default against the state or any of its departments, failure to comply with that article’s requirements renders the default judgment invalid.

For the reasons assigned the judgment of the trial court is affirmed at plaintiff’s cost.

Affirmed.


text:
    Carl BUTLER, Individually and as Administrator of His Minor Sons, Brandon Butler and Jarred Butler & Linda Butler, Individually, Plaintiffs-Appellees, v. Alfred C. PARDUE and Commercial Union Insurance Company, Defendants-Appellants.
    No. 14839.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Koselka, Swearingen & Street by C. Daniel Street, Theus, Grisham, Davis & Leigh by Brian E. Crawford, Monroe, for defendants-appellants.
    Hamilton & Carroll by O. N. Hamilton, Jr., Oak Grove, for plaintiffs-appellees.
    Before MARVIN, FRED W. JONES and SEXTON, JJ.
   SEXTON, Judge.

In this cause the issue is whether the driver at fault in an automobile accident was operating the automobile with the owner’s permission. The trial court found that the driver did have the owner’s expressed or implied permission within the meaning of the insured’s insurance policy, and thus held the minor driver’s father’s insurer liable for the plaintiffs’ injuries. The defendant insurance company has suspensively appealed. The defendant, Alfred C. Pardue, father of the minor driver of the automobile did not appeal. We amend and as amended, affirm.

The facts are undisputed. On September 2, 1980, plaintiff-appellee, Linda S. Butler, was operating a 1976 Chevrolet pickup truck owned by her and her husband. The vehicle was being driven in an easterly direction on Marietta Street in Oak Grove, Louisiana. The plaintiff’s minor sons, Brandon and Jarred, were also occupants of the vehicle. When the Butlers’ vehicle reached the intersection of Marietta and Jarson Streets, it was struck by a 1976 Ford Maverick owned by Casey McPherson of Bastrop, Louisiana. The vehicle was being operated by Julie Pardue, minor daughter of the defendant, Alfred C. Pardue. At the trial below it was stipulated by all parties that the accident was caused by the negligence of Julie Pardue in that she failed to stop at the “STOP” sign that governs traffic on Jarson Street. As a result of the collision the plaintiff Carl Butler sued for the damage to the pickup truck and, as administrator of the estate of his minor sons, he claimed damages for their personal injuries. The plaintiff, Linda S. Butler, claimed damages for her own pain and suffering as well as for loss of earnings.

The defendant insurer contends that at the time of the accident, Julie Pardue was operating the vehicle without the permission, expressed or implied, of the owner and thus under the provisions of its policy the defendant insurance company owes no liability.

The trial court held that Julie Pardue had the implied permission of Casey McPherson, the owner of the vehicle, to operate the automobile within the meaning of the insurance policy held by Mr. Pardue. The court therefore held that the defendant insurer, Commercial Union Insurance Company, was liable to the plaintiffs in the following amounts:

1. THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS to plaintiff, Linda S. Butler for pain and suffering,
2. THREE THOUSAND SEVEN HUNDRED EIGHTY-ONE AND 12/100 ($3,781.12) DOLLARS to plaintiff Linda S. Butler for lost wages,
3. TWO THOUSAND SEVEN HUNDRED AND NO/100 ($2,700.00) DOLLARS for property loss,
4. EIGHT HUNDRED ONE AND 43/100 ($801.43) DOLLARS for medical expenses, and
5. SEVEN HUNDRED FIFTY AND NO/100 ($750.00) DOLLARS and FIVE HUNDRED AND NO/100 ($500.00) DOLLARS to Carl Butler as administrator for Brandon and Jarred Butler, respectively, for personal injuries.

On appeal, the defendant, Commercial Union Insurance Company, alleges three specifications of error: (1) that the trial court erred in holding that Julie Pardue had implied permission from the owner to drive the 1976 Ford Maverick automobile, and in therefore holding Commercial Union Insurance Company liable to the plaintiffs, (2) that it was error to award lost wages to the plaintiff, Linda S. Butler, based upon the balance of the school year, and (3) that the trial court erred in awarding the sum of Five Hundred and No/100 ($500.00) Dollars for personal injuries suffered by Jarred Butler when, in fact, the plaintiffs have failed to prove that the minor suffered any compensable damages.

First we will address the issue of permission. From the record of the evidence and testimony adduced at the hearing, it appears that on September 2, 1980, Joan McPherson, the daughter of the owner of the automobile, used the automobile, with her father’s permission to go to the nearby town of Oak Grove, Louisiana, where her boyfriend was incarcerated. Accompanying Miss McPherson was Julie Pardue. Joan McPherson drove the car to Oak Grove and parked it at the courthouse. Both young ladies went into the courthouse and obtained admittance to the jail where they visited with Miss McPherson’s boyfriend. After a few minutes, Miss Pardue desired to leave and get soft drinks for Miss McPherson and herself. The testimony of both Miss Pardue and Miss McPherson establishes that Miss McPherson, somewhat reluctantly, gave Miss Pardue the keys to the Maverick and told her to be careful and to come right back. Miss Pardue successfully operated the vehicle only three blocks before becoming involved in the collision with the Butler vehicle.

Upon reaching the scene of the accident, apparently Miss McPherson told Miss Par-due that she should not have used the vehicle. However, Miss McPherson testified at the hearing below that she did give Miss Pardue permission to use the automobile.

At the outset, the two girls collaborated and constructed an account of the accident which required Miss Pardue to state that she took the car without permission. This story was told to Mr. McPherson in order that Joan McPherson would not get into trouble with her father. The insurance investigators who interviewed the girls regarding the accident were also given the fictional account of the circumstances of the collision. The girls later recanted and told their parents the truth. At the hearing below each girl testified that they had previously lied but that the testimony they were giving to the court was the absolute truth. On appeal, our review of the record reveals that the testimony of the girls is vague and seemingly inconsistent at times. However, the trial court observed the witnesses as they responded to questions on direct and cross examination and based on these observations determined that the girls were then telling the truth. We find that this factual determination by the trial court is supported by the evidence presented and further that such a determination cannot be categorized as being clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Mr. McPherson testified that he knew that his daughter often allowed her friends to drive other family vehicles which she was permitted to use and further that he did not discipline her for allowing others to operate these vehicles, although he stated he regularly told her not to allow others to drive the vehicles. However, with regard to the Maverick, since he had owned it for only one month he testified that to his knowledge none of his daughter’s friends had operated that particular vehicle. However, in a deposition taken of Mr. McPherson and made part of the record the following discourse took place between Mr. McPherson and Mr. Hamilton, the counsel for the plaintiffs:

Question: “So whenever she took one of the family automobiles, including this Maverick, it’s your testimony that she had the authority to let other people drive it if she wanted to?”
Answer: “Yeah.”

Basing his decision on the evidence included in the record, which we have thoroughly reviewed, the trial court determined that Joan McPherson had at least implied permission to let others use the Maverick automobile. We find that the evidence supports this finding and that according to Arceneaux, supra, the trial court did not commit manifest error in reaching this decision. For these reasons we affirm the trial court’s finding that Julie Pardue operated the automobile with Joan McPherson’s permission and further that the owner of the automobile, Casey McPherson, Joan’s father, had given her at least implied authority to operate the automobile. Here as in Hughes v. Southeastern Fidelity Insurance Company, 340 So.2d 293 (La.1976), the owner knew or should have known that his express permittee would allow others to use his vehicle, thus insurance coverage is extended to the second party driver of the vehicle. In Devall v. State Farm Mutual Insurance Company, 249 So.2d 282 (La.App. 1st Cir. 1971), liability coverage was not extended to a second permittee where there was an express restriction given to the initial permittee. We agree with the trial court’s distinction between that case and the instant case. Here Joan was given broad and free use of all the family automobiles and was only casually warned about letting others use the automobile. For these reasons, the defendant Commercial Union Insurance Company shall be liable according to the terms of its policy with the insureds for damages suffered by the plaintiffs.

With respect to the second specification of error, i.e. that the trial court erred in awarding lost wages to the plaintiff, Linda S. Butler, based upon the balance of the school year, we find that this award was excessive.

As a result of the September 2 collision with the McPherson vehicle driven by Julie Pardue, Linda S. Butler suffered injury to her neck and shoulders, as well as various bruises. Mrs. Butler took two days sick leave from her job as a lunchroom worker and returned to work as best she could for the rest of 1980. However, she testified that she was unable to continue to perform her job as she previously had. She further stated that the pain in her neck and shoulders prevented her from lifting pans and performing other necessary work. Thus on January 30, 1981, the plaintiff resigned her position. She testified that after resigning her health began to improve and by March 1981 she was able to work again. However, her position at the school had been filled. Without inquiring, Mrs. Butler assumed she could not regain her position as a lunchroom worker. She did not seek other employment because she wanted to work the same hours her children were at school. The trial court awarded the plaintiff loss of wages from February through July, 1981, (the end of the school year), in the amount of Three Thousand Seven Hundred Eighty-one and 12/100 ($3,781.12) Dollars. We find however that since the plaintiff was physically able to rejoin the work force in March, she should recover only for the period from February 1981 through the middle of March 1981. In its computation of damages, the trial court found Mrs. Butler’s monthly salary to be $540.16. We adopt that figure and award the plaintiff one and one-half months of lost wages, a total of Eight Hundred Ten and 24/100 ($810.24) Dollars. We affirm the trial court’s reasons for awarding loss of earnings to the plaintiff, we disagree only with the amount. Therefore, this award shall be reduced from Three Thousand Seven Hundred Eighty-one and 12/100 ($3,781.12) Dollars to Eight Hundred Ten and 24/100 ($810.24) Dollars.

As for the appellant’s specification that the trial court erred in awarding Five Hundred and No/100 ($500.00) Dollars representing injuries to three-year-old Jarred Butler, the trial court found that although young Jarred did not suffer any actual physical injury, he did suffer trauma and was upset for a period of time. The jurisprudence specifically provides that fright, fear or mental anguish while an ordeal is in progress is legally compensable. Hoffman v. All Star Insurance Corp., 288 So.2d 388 (La.App. 4th Cir. 1974). Furthermore, it is only after a finding that the lower court abused its wide discretion in determining an award of damages that the appellate court may disturb that award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Here we find no evidence that the Five Hundred and No/100 ($500.00) Dollars was excessive or that the trial court abused its discretion in making that award to the plaintiff’s minor son.

For the reasons set forth, the judgment of the trial court is amended and that portion of the judgment awarding damages to plaintiff, Linda S. Butler, is recast to read as follows:

The Court finds that defendant is liable to the plaintiff, Linda S. Butler, for Three Thousand and No/100 ($3,000.00) Dollars for pain and suffering and for Eight Hundred Ten and 24/100 ($810.24) Dollars for loss of earnings.

As amended, the judgment is affirmed with costs of this appeal assessed to the defendant-appellant.


author: MARVIN, Judge.

text:
    Bernice JACOBS, Carrie Bell Jenkins, Laura Boxley and Alberta Preston, Plaintiffs-Appellants, v. ST. MARK’S BAPTIST CHURCH OF HOLLY, LOUISIANA, INC., Defendant-Appellee.
    No. 14842.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Rehearing Denied May 12, 1982.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for plaintiffs-appellants.
    Joseph D. Toups, Jr., Mansfield, for defendant-appellee.
    Before MARVIN, FRED W. JONES, and SEXTON, JJ.
   MARVIN, Judge.

In this dispute between church members, the trial court declared that the church property was owned by the incorporated church and rejected the demands of the plaintiff-members to enjoin the church from demolishing the old church building on the property. Plaintiffs appeal.

Plaintiffs contend that they, who were members of the unincorporated association and who voted against the majority to incorporate the church in 1976, retained an ownership interest in the church property after that property was transferred to the church corporation in 1977-1978. Civil Code Art. 446.

The litigants stipulated the facts and introduced copies of the minutes of the church which authorized the incorporation, the transfer of the church property to the corporation, and the deeds which transferred the property in return for the corporation assuming the mortgage debt of the unincorporated association. Plaintiffs do not show or complain that the unincorporated association was unauthorized to act through a majority of its members or that either the incorporation of the church or the transfer of the property to the corporation was ultra vires or legally defective.

Under these circumstances, an unincorporated association may legally act through a majority of its members to incorporate and to authorize the transfer of its property to the corporation which is created. CC Art. 446; LRS 12:207(C); United Brotherhood v. Stephens Broadcasting Co., 214 La. 928, 39 So.2d 422 (1949); Act 352 of 1980, § 2.

At appellants’ cost, judgment is AFFIRMED.

      . Art. 446. A. Corporations unauthorized by law or by an act of the legislature enjoy no public character, although these corporations may acquire and possess estates and have common interests as well as other private societies.
      Unless otherwise provided by its constitution, charter, bylaws, rules, or regulations under which it is organized, governed, and exists, any unincorporated nonprofit association may alienate or encumber title to immovable property to any person. For the purposes of this article, immovable property includes, without limitation, mineral rights, predial servitudes, and predial leases, and a transaction to alienate or encumber shall include, without limitation, transactions to mortgage, hypothecate, donate, or transfer title to immovable property. Any such transaction shall be authorized by resolution adopted by a majority of the members of the association who vote on the resolution at a special meeting called and held for that purpose. The resolution may designate a person or persons to act as agent for the purpose of effectuating the transaction. Notice of the special meeting, including the date, time, and place of the meeting and the substance of the contemplated resolution, shall be published, on two separate days at least fifteen days prior to the date of the meeting, in the official journal of the parish in which a majority of the members reside or, if none, in a newspaper of general circulation in the parish. A copy of the resolution and proof of publication as required herein shall be attached to each act effectuating the transaction.
      B. The provisions of this article applicable to transfers of immovable property by unincorporated nonprofit associations shall not apply when the transfers are part of an incorporation of the association in which substantially all of the assets of the unincorporated nonprofit association are transferred to the new corporation. In such cases, R.S. 12:207(C) shall govern the transfer.


text:
    M. H. MARR, Plaintiff-Appellant, v. Mrs. Louney Suire HEBERT et al., Defendants-Appellees.
    No. 14845.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Hargrove, Guyton, Ramey & Barlow by Donald E. Walter and Glenn L. Langley, Shreveport, for plaintiff-appellant.
    Hayes, Fazzio, Durio & Richard by Steven G. Durio, Lafayette, for defendant-ap-pellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

An Act of Sale executed by M. H. Marr on October 4,1946, conveying some 90 acres of land in Caddo Parish to 0. G. Collins, Sr., contained the following clause:

“As a further consideration for this deed, it is agreed and understood between the parties hereto that if 0. G. Collins or his heirs shall desire to lease, sell, or otherwise dispose of the above described land, he or they shall first offer same in writing to M. H. Marr, or his heirs, who shall have ten days after the receipt of such written notice within which to accept or reject same. If Marr, or his heirs, shall elect to purchase, he shall notify Collins, or his heirs, in writing of such election within ten days of receipt of said offer above mentioned and thereafter shall have ten days within which to examine title. Within the ten day period allowed for examination of title, Marr, or his heirs, shall either approve and accept title thereto or reject same.
“In the event Marr or his heirs shall fail or neglect to notify Collins or his heirs within ten days after said property is offered him or shall reject such offer or shall fail or neglect to approve title within the additional ten day period, then and in such event Collins or his heirs shall have the right to lease, sell, or otherwise dispose of said property to any other person upon the same or higher (but not lower or different) terms as offered to Marr.”

In 1969 0. G. Collins, Jr. acquired by inheritance his mother’s undivided one-half interest in the described property and in 1972 acquired by inheritance his father’s undivided one-half interest.

In 1975, David C. Brignac was recognized as a special legatee under the will of 0. G. Collins, Jr. and sent into possession of the described Caddo Parish property.

By letter dated February 5, 1979, Brig-nac’s attorney advised Marr that his client had received and contemplated accepting an offer of $75,000 for a portion of the described property but, pursuant to the terms of the 1946 deed, was offering “first refusal” to Marr on the same terms and conditions as the offer.

On February 15, 1979 Marr filed this declaratory judgment action against Brignac and Mrs. Louney Hebert, executrix of the Succession of O. G. Collins, Jr. and decedent’s residuary legatee, seeking to nullify the testamentary disposition to Brignac and to compel the executrix to tender the property to plaintiff in accordance with the “first refusal” clause in the 1946 deed.

After the filing of responsive pleadings, pursuant to a joint stipulation the case was submitted to the trial judge for decision upon the basis of the pleadings, an abstract of title and briefs filed on behalf of the parties.

Concluding that the “first refusal” clause in the 1946 deed did not apply to testamentary bequests, and that Brignac was an “heir” within the meaning of the language contained in the clause, the trial judge rejected plaintiff’s demands.

Plaintiff appealed this judgment, contending that the bequest by O. G. Collins, Jr. of the immovable property in question to Brignac, who was not a legal heir of the testator, violated the “first refusal” clause of the 1946 deed, since Collins “otherwise disposed” of the property without first offering it to Marr.

Finding, for the reasons hereinafter assigned, that the “first refusal” clause in the 1946 deed was not intended by the parties to apply to testamentary bequests, we affirm the judgment of the district court.

We note, preliminarily, that the validity of “first refusal” clauses of the general nature of that under consideration has been recognized by the Louisiana Supreme Court in Price v. Town of Ruston, 171 La. 985, 132 So. 653 (1931) and Crawford v. Deshotels, 359 So.2d 118 (La.1978).

Turning to the specific clause involved here, the critical question is whether the parties intended the phrase otherwise dispose of to include testamentary bequests. In construing this phrase we are mandated to seek the intent of the parties, which intent “is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.” La.Civil Code Art. 1945. When doubt arises as to the meaning of certain words in a contract, they may be explained by referring to other words or phrases used in making the same contract. La.Civil Code Art. 1948.

Since the precise meaning of the phrase otherwise dispose of, taken alone, is not self evident, it is appropriate to search for the parties’ intended meaning within the context of the entire “first refusal” clause, which appears to contemplate the following sequence of events in its application:

(1) Collins (or his heirs) decides to lease, sell or otherwise dispose of the land or a portion thereof.
(2) Written notice is given to Marr (or his heirs) of that decision — with an offer to transfer the described tract to the recipient of the notice on the same terms and conditions as the offer.
(3) If Marr (or his heirs) elects to purchase, he shall notify Collins (or his heirs) of that decision in writing within a specified time.
(4) If Marr (or his heirs) does not exercise this right of “first refusal”, Collins (or his heirs) has the right to lease, sell or otherwise dispose of the property to any other person upon the same or higher terms as offered to Marr.

Viewed in its entirety, we do not discern in this “first refusal” clause any intent by the parties that it apply to testamentary dispositions. For example, the clause expressly gives Marr (or his heirs) the option to purchase the property upon the same terms and conditions as those contained in an offer from a third party. This obviously envisions some kind of onerous transfer of the property, rather than a testamentary bequest. Further, if the clause applies to a donation mortis causa, how could there be compliance with the notice requirements without leading to absurd consequences? Surely the parties did not intend that Marr be given an opportunity to substitute himself for another legatee in the will of the vendee, Collins, or that of his son!

Next, it is apparent from the reference in the “first refusal” clause to “0. G. Collins or his heirs” (emphasis added) that bequests to heirs do not fall within the ambit of otherwise dispose of.

Appellant argues that, since Brignac was not a universal legatee or legatee by universal title, he was not an “heir” under La.C.C. Art. 894. In answer to that argument, we agree with the trial judge that it would be both inappropriate and unrealistic to construe the word “heir” in this narrow, technical sense in our interpretation of the “first refusal” clause. The words of a contract are to be understood “in the common and usual signification.” La.C.C. Art. 1946. “Heir” is a general term which is commonly understood to encompass those who inherit by operation of law as well as those who inherit by virtue of testamentary dispositions. See Succession of Dinwiddie, 263 So.2d 739 (La.App. 4th Cir. 1972). Nothing in the “first refusal” clause under consideration indicates that the parties intended a more restrictive definition of “heir”. Consequently, the bequest to Brignac, who was thereby instituted an “heir”, did not require compliance with the “first refusal” clause in the 1946 deed.

For these reasons, we affirm the judgment of the district court dismissing plaintiff’s suit, at appellant’s cost.


text:
    FRIDAY’S PLUMBING & HEATING CO., INC., Plaintiff-Appellee, v. Homer O. BYERS, d/b/a Homer O. Byers General Contractor, Defendant-Appellant.
    No. 14848.
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 1982.
    Rehearing Denied May 12, 1982.

      Richie & Richie by John A. Richie, Shreveport, for defendant-appellant.
    Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   MARVIN, Judge.

The issue in this contract action is whether the required installation of condensate drain lines on rooftop air conditioning systems was an obligation of the plumbing subcontractor.

The plumbing subcontractor, Friday’s, brought the action to compel the general contractor, Byers, and his surety, to pay the amount Byers withheld on the plumbing subcontract ($15,956.50). This amount was withheld because Byers contended that Friday’s owed Byers for the cost of having another subcontractor install the condensate drain lines ($11,000). Byers reconvened for the cost of this work.

The trial court rejected the demands of Byers and granted Friday’s demands. Byers and his surety appeal.

Byers contends that the trial court erred in interpreting the contract and in relying on the interpretation offered by Guth, the consulting mechanical engineer, who wrote that part of the contract, plans, and specifications in question. Byers argues that Guth, while qualified as a consulting engineer, was not qualified to offer an opinion of what respective work a general contractor could reasonably require, under this contract, of the air conditioning subcontractor on the one hand and of the plumbing subcontractor on the other.

We find that the interpretation of the contract by the trial court is correct and is shown to be substantially supported by the testimony of others who are competent in this area of the building trades industry and we affirm the judgment appealed.

THE FACTS

This controversy stems from the desire of the Bossier Parish School Board to air condition 22 of its schools and other buildings. The Board advertised for bids on eight bid packages to facilitate and expedite the work.

In preparing his bid on Bid Package No. 1 as general contractor, Byers obtained proposals from several subcontractors in the fields in which work was required, including fields such as roofing, air conditioning, and plumbing. Friday’s generally obligated itself to Byers to “furnish all material and perform all work necessary to complete the plumbing work on Bid Package No. 1 ...” for $67,900. This package covered the work at the elementary schools at Benton and Plain Dealing and at the high school at Plain Dealing.

While the contract is to be construed as a whole, Section 15B relates to the plumbing requirements and Section 15C relates to the air conditioning requirements. Section 15B reads in part:

“SECTION 15B — PLUMBING
******
“DESCRIPTION OF WORK:
“The extent of plumbing systems is indicated by drawings and schedules, and the requirements of this section. Principal items are as follows:
Sanitary Drainage system.
Water piping system.
Gas piping system.
Services to heating and air conditioning equipment.
Water heaters.
Demolition.
* * * * * *
“Sanitary Drainage System: Provide a system of sanitary drainage and venting as indicated, leaving all equipment being furnished in the building contract fully connected and ready for operation.
******
“Floor Drains: Provide deep seal P-trap at each. (Minimum 4" seal.) Drains in waterproofed membraned floors to be equipped with clamping rings fastened and flashed to membrane.
******
“Roughing For Air Conditioning and Heating Equipment: Provide valved water, gas and drain at points indicated for air conditioning and heating equipment. Final connection is included under Section. 15C.
“Backflow Prevention: Provide, in the cold water make-up line to each heating water system, a line size backflow pre-venter with drain piped to nearest floor drain.”

Section 15C reads in part:

“SECTION 15C — HEATING, VENTILATING AND AIR CONDITIONING
******
“Blowdown and Drain Piping: Provide drain piping, blowdown piping, etc. throughout, including air unit drain lines, pressure relief valves, etc. Pipe all drains to floor drains. Provide flanges or unions at each to permit disassembly. Use plugged tees for all changes in direction for air conditioning condensate drain lines.
******
“Plumbing Work: Gas and cold water lines to equipment requiring same are specified in Section 15B. Under this section make final connections thereto as indicated and as required.” Emphasis ours.

The condensate drain lines from air conditioners are also referred to as drain lines or drain piping in the contract. The services to air conditioning equipment in § 15B (explained as gas and cold water lines in § 15C) are not drain lines. The sanitary drainage system in § 15B is a vented system that is a part of the sewer system of the building which includes Door drains. The plumbing contractor is required to provide this drain system to which the air conditioning subcontractor is to connect condensate drain lines from the air conditioners he installs. Section 15C confirms that gas and cold water lines to air conditioning equipment are § 15B plumbing, the final connection to which is to be made by the air conditioner, but expressly requires that the air conditioner subcontractor shall

“ . .. [provide] drain piping ... throughout, including air unit drain lines ... [and] [p]ipe all [air conditioning condensate] drains to floor drains . .. [and] [u]se plugged tees for all changes in direction for air conditioning condensate drain lines."

The contract uses the term air conditioning condensate drain lines only in the Blow-down and Drain Piping paragraph of § 15C that generally states the work requirements of the air conditioning subcontractor.

The testimony, in varying degree, of the architect, the mechanical engineer who wrote Section 15 of the contract for the architect, and others experienced in either or both the estimating of bids and the performing of air conditioning and plumbing work under contracts of this type and wording, generally support the findings and the analysis of the contract made by the trial court.

It was explained that the term air conditioning condensate drain lines and other language in the contract has been used in contracts of this type for more than 20 years. The terms of the contract have acquired some meaning in the industry. CC Art. 1947. This record contains substantial evidence to support the trial court’s express finding that the most experienced and qualified persons in this industry consider air conditioning condensate drain lines to be the responsibility of the air conditioning subcontractor. CC Art. 1947. Additionally, this record shows that the air conditioning subcontractor specifically conditioned its bid to exclude not only plumbing, but the condensate drains.

Some of the witnesses who were experienced or knowledgeable in bidding on and working under such contract language acknowledged that the language could perhaps be interpreted either as plumbing or as air conditioning work. The trial court, however, was not clearly wrong in finding that the evidence preponderated that it was customarily accepted by those most experienced and qualified in the field that air conditioning drain lines are the required work of the air conditioning subcontractor and not the plumber.

A consulting engineer of 20 years experience who writes mechanical engineering contract specifications for plumbing and air conditioning for the architect and who has supervised the construction under this phase of such contracts, is competent to express his opinion as to who customarily is required to do what work. Craven v. Orleans Levee Dist., 51 La.Ann. 1267, 26 So. 104 (1899).

A trial court has great discretion in determining the qualifications of experts and the effect and weight to be given expert testimony. We find no clear abuse of discretion.

For the reasons assigned below and supplemented here, and at appellant’s cost, the judgment is

AFFIRMED.

      . “Terms of art or technical phrases are to be interpreted according to their received meaning with those who profess the art or profession to which they belong.”

      . Testimony to this effect was elicited from two experienced plumbers (Mazzone and Robertson), and an experienced air conditioning contractor (Segal). The trial court discussed, but gave little weight to, the testimony of Byers and others to the contrary. The trial court also accepted the engineer’s testimony that there was no distinction between rooftop condensate drains and condensate drains from air conditioning equipment elsewhere in the building. The contract also does not make this distinction.