author: GUIDRY, Judge.

text:
    BETHEL APARTMENTS, INC., Plaintiff-Appellant, v. Rev. G.W. TYLER, Defendant-Appellee.
    No. 82-166.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Steven Young, Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This possessory action was consolidated on appeal with three other cases: Bethel Apartments, Inc. v. Rev. G.R. Haughton, 422 So.2d 1319 (La.App. 3rd Cir.1982), our docket number 82-266; Reverend G. W. Tyler v. Reverend G.R. Haughton, 422 So.2d 1319 (La.App. 3rd Cir.1982), our docket number 82-267; and Reverend G.W. Tyler v. Reverend G.R. Haughton, 422 So.2d 1320 (La.App. 3rd Cir.1982), our docket number 82-268. These latter three cases were also consolidated for trial in the district court. The law and relevant facts are common to all three suits, therefore our opinion herein is equally applicable to each, but we render separate judgments in the other three consolidated cases.

Bethel Apartments, Inc., through its alleged chairman of the Board of Directors, Reverend G.R. Haughton, brought this pos-sessory action against Reverend G.W. Tyler. In conjunction with this suit, injunctive relief was sought to prohibit Reverend Tyler from interfering with the affairs of the corporation. The trial court issued a temporary restraining order. Reverend Tyler filed a motion to dissolve the temporary restraining order in which he asserted that he and not Reverend Haughton was chairman of the Board of Directors of the corporation. The motion for a preliminary injunction and the motion to dissolve the temporary restraining order were tried together in a rule to show cause hearing. On the third day of hearing, Reverend Tyler filed a dilatory exception of lack of procedural capacity. On November 30, 1981, the trial court signed a judgment dissolving the temporary restraining order, denying the preliminary injunction, and dismissing this suit. Notice of the signing of the judgment was mailed to all parties that same day. Bethel Apartments, Inc., through its alleged chairman of the board, Reverend G.R. Haughton, on January 19, 1982, appealed devolutively.

Subsequent to the trial and dismissal of this suit, Bethel Apartments, Inc., through its alleged chairman of the Board of Directors, Reverend Tyler, filed a suit (which bears our docket number 82-266) for the issuance of a writ of injunction against Reverend Haughton seeking to enjoin his interference with the affairs of Bethel. Also, Reverend Tyler, in his individual capacity, brought two suits (which bear our docket numbers 82-267 and 82-268) for the issuance of writs of quo warranto and mandamus against Reverend Haughton. Specifically, Reverend Tyler seeks by these several suits to have determined the proper official to hold the office of chairman of the Board of Directors of Bethel; to get the corporate records; and, to enjoin Reverend Haughton from interfering with the operation of the corporation. These three suits were consolidated for hearing in the trial court and the entire record of the first suit was introduced into evidence at the hearing of these consolidated matters. Additional evidence was adduced to show that Reverend Haughton was still holding the records of Bethel and was still interfering with the affairs of the corporation and holding himself out as president and chairman of the Board of Directors.

The trial court rendered judgments in these three suits granting the writs of quo warranto, mandamus and injunction. Reverend Haughton was granted suspensive appeals from the judgments granting writs of mandamus and quo warranto and a de-volutive appeal from the judgment granting the preliminary injunction.

FACTS

These are the pertinent facts leading up to the dispute, which is the basis of all four suits. Reverend Haughton is the former pastor of Bethel African Methodist Episcopal Church in Alexandria, Louisiana (hereafter referred to as the Church). In 1969, during Reverend Haughton’s tenure as pastor, the Church purchased the land where the Bethel apartments are now located. On June 17, 1969, Bethel Apartments, Inc. (hereafter referred to as Bethel) was formed and its articles of incorporation adopted and filed. On July 8, 1969, the property was transferred from the Church to Bethel. Bethel obtained a loan from First Fidelity Mortgage Company of Monroe, Louisiana, to build the apartment complex, At the time the apartment complex was completed, Reverend Haughton was the president and chairman of the Board of Trustees of the Church and of the Board of Directors of Bethel. To this date, Reverend Haughton continues to assert title to the office of president and chairman of the Board of Directors of Bethel, although he admits that on October 1,1981, he ceased to be a member of the Board of Trustees of the Church when he resigned and retired from his position as pastor of the Church.

On November 15, 1980, Reverend G.W. Tyler was appointed to the position of Pastor of the Church. On January 18, 1981, Reverend Tyler held an election for a new Board of Trustees of the Church. Nineteen members were elected and Reverend Tyler assumed the position of chairman and ex-officio member of the Church board as provided by the church rules.

On February 18, 1981, Reverend Haugh-ton called a meeting. The purpose of the meeting as reflected in the minutes was to elect officers of the Board of Directors of Bethel. The minutes of that meeting do not reflect who was present, however, the record indicates that the meeting was attended by the then Board of Directors of Bethel. The officers, including Reverend Haughton, were unanimously re-elected.

On February 25, 1981, following verbal notice, and at a meeting attended by a majority of the then members of the Board of Trustees of the Church, Reverend Tyler held an election for directors of Bethel. At this meeting, eight members of the Board of Trustees of the Church were elected as directors of Bethel. Reverend Tyler was elected chairman and president of the Board. This Board subsequently met to elect the other officers.

All of these suits arise from the competition for control of Bethel and its property between the two groups, one consisting of the officers and Board of Directors attending Reverend Haughton’s meeting of February 18, 1981, and the other consisting of the Board of Directors elected at Reverend Tyler’s meeting of February 25, 1981.

First, as to the possessory action filed on behalf of Bethel, we observe that under LSA-C.C.P. Art. 3612, an order dissolving a temporary restraining order is not appealable. Under the same article, an appeal from an order or judgment relating to a preliminary injunction must be taken within 15 days from the date of the order or judgment. Here the appeal from the judgment rejecting the demand for issuance of a preliminary injunction was untimely where the judgment was signed on November 30, 1981, and the motion for appeal was not filed until January 19, 1982. We therefore, on our own motion, dismiss this appeal insofar as it relates to the trial court’s dissolution of the temporary restraining order and its judgment rejecting Bethel’s demand for a preliminary injunction.

The only issue remaining insofar as this suit is concerned is whether Bethel’s demand should have been dismissed on the exception of lack of procedural capacity.

Bethel argues that a dilatory exception of lack of procedural capacity filed after a motion to dissolve a temporary restraining order and during trial of the rules is untimely and thereby waived.

Bethel brought a possessory action and requested ancillary injunctive relief pursuant to C.C.P. Art. 3663. Reverend Tyler never filed an answer to the possesso-ry action. Reverend Tyler, instead, raised the question of lack of capacity of Reverend Haughton to file a possessory action on behalf of Bethel. This exception was filed during the rule to show cause hearing (which concerned only the ancillary injunc-tive relief) before the delays for answering had run. The petition was filed August 24, 1981. The exception was filed on September 4, 1981. The fact that the exception was filed after a motion to dissolve a temporary restraining order or during the hearing on the ancillary injunctive relief is of no import. The exception was filed prior to answer or judgment by default and was therefore timely. LSA-C.C.P. Art. 928.

This possessory action was instituted on behalf of the plaintiff, Bethel Apartments, Inc., by Reverend G.R. Haughton. He appears in a purely representative capacity, alleging that he was the corporation’s duly elected chairman of the Board of Directors. Reverend Tyler, in his exception, contends that he and not Reverend Haughton is the corporation’s duly elected chairman of the Board and therefore, Reverend Haughton lacks the capacity to institute a possessory action on behalf of Bethel. He thereby raises the issue of whether Reverend Haughton or Reverend Tyler is the proper official to hold the office of chairman of the Board of Directors of Bethel. This is also the only issue on appeal in the remaining three suits.

The issue of the proper corporate control group is resolved by an analysis of Louisiana’s non-profit corporation law and the articles of incorporation of Bethel. The applicable provisions of law are set forth below.

LSA-R.S. 12:224(C) provides:
“Each director shall hold office for the term for which he was named or elected, and until his successor is elected and qualified. Directors, other than those constituting the first board, shall be elected by the voting members, unless some other method is expressly provided in the articles and except as hereinafter provided in the case of vacancies.”
LSA-R.S. 12:217(A) provides:
“Membership shall be of the classes, and shall be governed by the rules of admission, retention, suspension and expulsion, which the articles or by-laws prescribe; provided that all rules shall be reasonable, germane to the purpose of the corporation, and equally enforced as to all members of the same class.”
LSA-R.S. 12:230(A) provides:
“Unless otherwise provided in the articles or by-laws, and except as otherwise provided in this Chapter, the authorized person or persons calling a members’ meeting shall cause written notice of the time, place and purpose of the meeting to be given to all members entitled to vote at such meeting, at least ten days and not more than sixty days prior to the day fixed for the meeting. Notice of the annual meeting need not state the purpose thereof, except as otherwise provided in this Chapter if a specified action is to be taken at the meeting. If such written notice is placed in the United States mail, postage prepaid, and addressed to a member at his last known address, notice shall be deemed to have been given him. Notice of any meeting may be waived in writing by any member at any time; the written waiver need not specify the purpose of or the business to be transacted at the meeting; and such notice shall be deemed to have been given to, or Waived by, all members present or represented at any such meeting except any member who, at the beginning of the meeting, objects to the transaction of any business because the meeting is not lawfully called or convened... . ”

The pertinent provisions of the Articles of Incorporation of Bethel are as follows:

Article VII(C) provides:
“C. Membership in the corporation shall, at all times, is (sic) limited to individuals who are either (1) trustees of Bethel African Methodist Episcopal Church Incorporated (formerly: Fountain Chapel African Methodist Episcopal Church Incorporated), or (2) members of Bethel African Methodist Episcopal Church Incorporated and who have the approval of the Board of Trustees of Bethel African Methodist Episcopal Church Incorporated. In the event that a member of the corporation ceases to be a member of Bethel African Methodist Episcopal Church Incorporated or, if the aforesaid approval is withdrawn, then, in either event, such shall constitute automatic resignation as a member and director (trustee) of the corporation. ”
Article VIII(A) & (B) provides:
“A. The number of directors (trustees) of the corporation shall be eight (8), and same shall be elected by the membership of the corporation from the membership. The directors (trustees) of the corporation must, at all times, be members of the corporation. No nonmember of the corporation may serve as a director.
B. The directors (trustees) shall be elected at the annual meeting of the members for a term of one year. ”
Article IX provides:
“A. At least one meeting shall be held of the voting members each calendar year. This meeting shall take place during the month of February of each year at a time and place to be designated by the directors in the Bylaws. It shall be the duty of the President, and upon his failure or neglect, then of the Secretary, or any officer or member to give notice at least ten (10) days prior to this annual meeting to all members entitled to be present.
B. Special meetings of the voting members may be called at anytime by the President or Board of Directors. On the failure or refusal of either to call a meeting, upon the written request of at least five (5) voting members, anyone of these voting members shall have the authority to call a meeting provided that notice by United States Mail shall be given to each voting member at least ten (10) days pri- or to the day named for any meeting called and this requirement of notice shall apply to either regular or special meetings.
C. Meetings may be held at any place within Rapides Parish, Louisiana.
D. No business transaction at a members meeting shall be valid unless a quorum is present. A quorum shall consist of fifty per cent (50%) of the membership present in person (or by a proxy).”

In each of the four suits, the trial court resolved the issue of corporate control as contended for by Reverend Tyler. The trial judge reached this conclusion by finding that (1) Article VII(C) of the Articles of Incorporation of Bethel only states the necessary qualifications of members and does not serve as a rule for admission to the corporation; (2) the Articles of Incorporation of Bethel do not otherwise provide any rules for admission of members; and, (3) appointment to membership in Bethel was the prerogative of the pastor of the Church because this had been the traditional method. Although we disagree with these findings, for the reasons which follow, we reach the same result.

Nowhere in the Articles of Incorporation is it provided that the pastor of the Church has the authority to appoint the membership in Bethel. If a corporation fails to provide rules governing the admission of members in its Articles of Incorporation or By-Laws, the non-profit corporation laws of this state are controlling (see LSA-R.S. 12:217(C)) not the traditional practice of that corporation.

However, we find that the, Articles of Incorporation of Bethel do provide for the admission of members. Specifically, we find that Article VII(C) of the Articles provides that all members of the Board of Trustees of the Church automatically become members of Bethel. Article VII(C) further permits the appointment of additional members by the trustees of the Church from the non-trustee members of the Church.

Even if this article be considered ambiguous, the circumstances surrounding the incorporation of Bethel supports this construction. The record reflects that the property comprising the apartment complex will be returned to the Church whenever the mortgage on the apartments is paid off. The A.M.E. Church, as a national organization, has been generally involved in low cost housing projects. At the start of this project, Reverend Haughton obtained specific approval of the project from his superiors in the Church and has since kept them apprised of the project. It has been the practice of the Church to form a non-profit corporation to develop and manage these projects. The various churches use different methods for keeping indirect control of the non-profit corporation. Article VII(C) effectuates this indirect control of the Church over Bethel by appointing the Board of Trustees of the Church as members of Bethel with the authority to elect a Board of Directors to manage and develop the projects. This interpretation is further supported by the circumstance that the Articles of Incorporation are otherwise silent as to the acquisition of membership in the Corporation.

No one questions that the Board was properly constituted prior to October 1, 1980. We, therefore, assume that it was. On that date Reverend Haughton, according to his own testimony, lost his membership on the Board of Trustees of the Church upon resigning as pastor. Although he was still a member of the Church, he did not receive approval of the Board of Trustees of the Church. Article VII(C) provides that membership in Bethel is at all times limited to members of the Board of Trustees of the Church or members of the Church who have the approval of said Board. Reverend Haughton, therefore, ceased to be a member of Bethel.

Although Reverend Haughton ceased to be a member in Bethel, he did not cease to be a director. Pursuant to LSA-R.S. 12:224(C) he continued to hold office in a caretaker status until his successor was elected and qualified.

Reverend Tyler, as ex-officio member and the nineteen individuals elected to the Board of Trustees of the Church, on February 18, 1981, became members of Bethel pursuant to Article VII(C) of the Articles of Incorporation of Bethel.

Despite the allegations that the February 18, 1981 meeting called by Reverend Haughton elected a new Board of Directors of Bethel, the minutes indicate that this was an alleged election of officers of the Board of Directors by the Board and not an election of the Board of Directors by the then members of the Corporation. This meeting of February 18, 1981 was invalid insofar as it purported to elect a new Board of Directors for Bethel.

Article VIII of the Articles of Incorporation of Bethel provides that there shall be eight directors elected at the annual meeting of the members, by the membership from the membership for a term of one year.

Article IX provides that the annual meeting shall take place in February of each year and that the President has the duty to give notice of the meeting. Upon his failure or neglect any member or officer may give the required notice. The article requires notice by United States mail at least ten (10) days prior to the day of the meeting to all members entitled to be present. A quorum of fifty (50%) percent of the membership present in person or by proxy is required.

When Reverend Tyler called his meeting on February 25, 1981, Reverend Haughton had made it apparent that he did not recognize all of the individuals, who were the members of the Board of Trustees of the Church, as members of Bethel and would not give notice to these individuals, who were entitled to be present. Reverend Tyler, as ex-officio member of the Board of Trustees of the Church, is a member of Bethel and upon the failure of the president to give notice could properly do so.

Reverend Tyler gave only a verbal notice of the February ■ 25, 1981 meeting. This verbal notice was given to all members of the Board of Trustees of the Church. The Board of Trustees has never approved a non-trustee member of the Church for membership in Bethel. Therefore, the only members of Bethel, at that time, were Reverend Tyler and the 19 other members of the Board of Trustees of the Church. Of these 20 members, 15 members, which constitutes a quorum, were present at Reverend Tyler’s meeting on February 25, 1981. Two of the 15 were present by proxy as authorized by Article IX.

LSA-R.S. 12:230(A) provides that notice is deemed to be given to, or waived by, all members present or represented at a members’ meeting. This article further provides that notice of any meeting may be waived in writing by any member at any time.

Considering the above, we conclude that Reverend Haughton was not a member of Bethel on February 25,1981 and was not entitled to notice of the February 25, 1981 meeting. In the absence of any objection to the lack of notice by the four members who were not present at that meeting, we find that the meeting was legally called. Therefore, the election of the eight members of the Board of Directors was effective and Reverend Haughton and the old Board ceased to hold office.

We, therefore, find that Reverend G.W. Tyler has been the duly elected and qualified president and chairman of the Board of Bethel Apartments, Inc. since February 25, 1981; that on August 24, 1981, Reverend G.R. Haughton lacked the procedural capacity necessary to represent Bethel Apartments, Inc. in a possessory action; that Reverend G.R. Haughton has usurped the office of president and chairman of the Board of Bethel Apartments, Inc., and that he has failed to deliver the papers and effects of the office to his successor.

For the above and foregoing reasons the judgment dismissing Reverend Haughton’s possessory action and casting him for costs is affirmed. Costs of appeal are to be assessed against plaintiff-appellant, Reverend G.R. Haughton.

AFFIRMED.

      . The nineteen members elected are listed in Appendix I.


source: Caselaw Access Project

license: Public Domain

text:
    BETHEL APARTMENTS, INC., Plaintiff-Appellee, v. Rev. G.R. HAUGHTON, Defendant-Appellant.
    No. 82-266.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Steven Young, Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Bethel Apartments, Inc. v. Reverend G.W. Tyler, 422 So.2d 1312 (La.App. 3rd Cir.1982), our docket number 82-166, the judgment of the district court is affirmed.

Costs of appeal are assessed against defendant-appellant, Reverend G.R. Haugh-ton.

AFFIRMED.


text:
    Rev. G.W. TYLER, Plaintiff-Appellee, v. Rev. G.R. HAUGHTON, Defendant-Appellant.
    No. 82-267.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Steven Young, Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Bethel Apartments, Inc. v. Reverend G.W. Tyler, 422 So.2d 1312 (La.App. 3rd Cir.1982), our docket number 82-166, the judgment of the district court is affirmed.

Costs on appeal are assessed against defendant-appellant, Reverend G.R. Haugh-ton.

AFFIRMED.


text:
    Rev. G.W. TYLER, Plaintiff-Appellee, v. Rev. G.R. HAUGHTON, Defendant-Appellant.
    No. 82-268.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Steven Young, Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Bethel Apartments, Inc. v. Reverend G.W. Tyler, 422 So.2d 1312 (La.App. 3rd Cir.1982), our docket number 82-166, the judgment of the district court is affirmed.

Costs of appeal are assessed against defendant-appellant, Reverend G.R. Haugh-ton.

AFFIRMED.


text:
    Reginald James YOUNG, Plaintiff-Appellant, v. John Russell ROZAS, et al., Defendants-Appellees.
    No. 82-237.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Kenneth Pitre, Eunice, for plaintiff-appellant.
    Tate & McManus, Vernon McManus, Eunice, for defendants-appellees.

      Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Reginald J. Young filed suit against John Russell Rozas and Amelia Reed Rozas for specific performance of a contract of sale and damages and for recognition of his vendor’s lien. In support of his demand, plaintiff alleged that by an undated and as yet unrecorded cash deed, he had conveyed title to certain immovable property to the defendants but the latter had failed to record said sale and pay the purchase price. By amending and supplemental petition, plaintiff added additional allegations. He alleged that subsequent to the filing of the original petition, First National Bank of Eunice instituted foreclosure proceedings against plaintiff on a promissory note which was secured by a first mortgage on the property which was the subject of the sale in this case. He further alleged that this foreclosure suit was settled when plaintiff sold the property in question to a third person on October 7, 1980 with the Rozas’ consent for the identical price recited in the previous sale to Mr. & Mrs. Rozas. He also specified additional damages alleged to have been caused by the filing of the foreclosure suit by First National Bank.

The trial court found that the defendants had defaulted on their obligation to pay and pursuant to LSA-C.C. Article 1935, awarded interest on the purchase price of the property from May 2,1980, until October 7, 1980, concluding that interest under the cited article constituted the only allowable element of damages. The plaintiff appealed. The defendants neither appealed nor answered the appeal.

Mr. Young contends that the trial court erred in its conclusion that interest was the only element of damages awardable in this case. He asserts that the additional damages incurred as a result of the foreclosure proceedings should have been allowed. He itemizes these damages as follows:

A.Arrearages paid to First National Bank on the mortgage — SIX HUNDRED SEVENTY THREE AND 68/100 ($673.68) DOLLARS. $ 673.68
B. Attorneys fees paid to the foreclosing attorney Kearney Tate — FIVE HUNDRED AND NO/100 ($500.00) DOLLARS. $ 500.00
C. Sheriffs costs in the foreclosure proceedings — TWO HUNDRED TWENTY SEVEN AND 68/100 ($227.68) DOLLARS. $ 227.68
D. Court costs in the foreclosure proceedings — FIFTY TWO AND 25/100 ($52.25) DOLLARS. $ 52.25
E. Attorney fees incurred due to the foreclosure proceedings — TWO HUNDRED AND NO/100 ($200.00) DOLLARS. $ 200.00
F. Embarrassment, inconvenience, and other damages due to the foreclosure proceedings — SIX THOUSAND AND NO/100 ($6000.00) DOLLARS. 86000.00
TOTAL ADDITIONAL DAMAGES 87653.61

The case of Thompson v. Pardue, 401 So.2d 497 (La.App. 2d Cir.1981) involves an almost identical factual situation. The plaintiffs in that suit had executed a credit sale of immovable property and the defendants-vendees refused to record the instrument or pay the purchase price. Thereafter, the vendors transferred the property to a third party but for an amount less than the consideration stipulated in the sale to the first vendees and then sued for damages. The court cited the following articles of the Louisiana Civil Code as applicable:

“Art. 2439. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
“Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.” “Art. 2456. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”
“Art. 2479. The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.” “Art. 1920. ' The rule that the obligation to deliver a determinate object is' perfect by the mere consent of the parties, and that the obligee is the owner from the time of such contract, is without any exception as respects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property.”
“Art. 2266. All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
“The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.”

In affirming the judgment of the district court dismissing plaintiff’s suit, the Second Circuit stated:

“According to the allegations of plaintiffs’ petition, the parties to this litigation executed a credit sale of immovable property. Although this instrument was not recorded, under the cited civil code articles the act of sale was completed as between the parties. Thereafter, upon failure of the buyers to perform their obligations the sellers could have sued either to enforce those obligations or to dissolve the sale. Sliman v. McBee, 311 So.2d 248 (La.1975); La.C.C. Arts. 2549(1), 2561.
There is no authority under our law for a vendor of immovable property, after a completed sale, to transfer the property described in the deed to a third party and then to sue the original vendee for damages.”

Thompson v. Pardue, supra, at page 499.

We think the decision of the Second Circuit is correct, apposite, and dispositive of the issue presented on appeal.

The plaintiff in this case relies on LSA-C.C. Article 2555 which provides:

“The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for damage which he may sustain on that account, and for reimbursement of the expense which may have been incurred for the preservation of the thing. ”

This article has been cited by the Louisiana courts in support of the vendor’s right to resell movable property to a third person and sue for the difference between the price obtained on resale and the contract price, where the vendee has breached the contract of sale by a refusal or failure to accept delivery. However, under Louisiana Civil Code Articles 1920 and 2479, quoted above, tradition or delivery of immovables always accompanies the public act which transfers the property. Therefore there can be no breach on the part of the vendee for failure to accept delivery of immovable property and no right of resale in the vendor.

Like our brethren of the Second Circuit, we conclude that our law does not afford a vendor of immovable property, a remedy of damages against his original vendee in a completed sale when the former ignores the first sale and transfers the property described in the deed to a third party. We therefore conclude that plaintiffs are not entitled to the damages which they claim were all incurred as a result of the foreclosure proceedings. Because the defendants failed to appeal the judgment of the trial court, it is final and, therefore, it is unnecessary that we consider correctness of the judgment of the district court insofar as it awards plaintiffs interest on the purchase price of the property from May 2,1980 until October 7, 1980.

For the foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: LABORDE, Judge.

text:
    Percy Louis SIMON, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, et al., Defendant-Appellee.
    No. 82-241.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Jan. 3, 1983.
    Caffery, Oubre & Dugas, David R. Dugas, New Iberia, for plaintiff-appellant.
    Roy & Hattan, M. Candice Hattan, Lafayette, Broussard & Broussard, Ltd., Marcus A. Broussard, Jr., Abbeville, for defendant-appellee.
    Before CUTRER, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Plaintiff, Percy Louis Simon, filed suit against Allstate Insurance Company and Ray Chevrolet Olds, Inc. seeking damages, penalties and attorney’s fees for the failure of Allstate to have his automobile repaired within a reasonable time. Allstate filed a third party demand against Ray Chevrolet seeking indemnity and contribution in the event a judgment was rendered against them. Ray Chevrolet filed a reconventional demand against Simon and Allstate seeking to recover the amount owed for the repairs on Simon’s automobile.

The trial court, without assigning reasons, rendered judgment in favor of the defendants, Allstate and Ray Chevrolet dismissing Simon’s petition. No judgment was rendered in the reconventional demand. Simon appeals from the judgment dismissing his suit. The issues presented on appeal are as follows:

(1) Whether Simon is entitled to an award for penalties and attorney’s fees.
(2) Whether Simon is entitled to recover for loss of use and for property damage to his automobile.
(3) Whether Allstate is entitled to indemnity or contribution from Ray Chevrolet.

FACTS

On March 28, 1979, plaintiff, Percy Simon, was involved in an automobile accident. As a result of the accident, Simon’s 1976 Pontiac Grand Prix was damaged and was towed to Ray Chevrolet-Olds, Inc. Simon contacted Allstate Insurance Company who provided collision coverage on his automobile. On April 6, 1979, Allstate sent its adjuster to Ray Chevrolet to examine the extent of damage to Simon’s car.

The initial inspection yielded a repair estimate of $1,459.65. Since this estimate was considerably less than the value of the automobile, Allstate exercised its option under the policy to have the car repaired. Allstate authorized Ray Chevrolet to make repairs and tendered a draft to Simon for $1,209.65. ($1,459.65 minus $250.00 deductible)

In the initial inspection Allstate’s adjuster failed to thoroughly inspect Simon’s car. As it turned out, a thorough examination would have revealed extensive damage to the car’s frame. Had this damage been discovered initially, Simon’s car would have been declared a total loss. However, at the time it was determined that the car should have been a total loss, Allstate had spent a considerable amount of money trying to have the car repaired and Ray Chevrolet had already completed several repairs on the automobile. Therefore, Allstate decided to continue repair of Simon’s car.

The reeord reveals that January 30, 1980, ten (10) months after the accident, was the last date Ray Chevrolet performed work on Simon’s car. On April 6, 1980, Allstate issued a second draft to Simon in the amount of $1,855.46 to pay for the additional repairs. When Simon came to pick up his car he noticed cracks in the dashboard and upholstery. Ray Chevrolet refused to repair this damage. Simon then filed this suit to recover penalties and attorney’s fees for the failure to make timely repairs, for the loss of use of his automobile and for the property damage to the car’s interior.

PENALTIES AND ATTORNEY’S FEES

The record reveals that in April of 1979, Ray Chevrolet received authorization from Allstate to make repairs on Simon’s automobile. According to the records of Ray Chevrolet the last repair work was performed on January 30, 1980. Therefore, a period of at least nine months lapsed before repairs were completed.

Allstate’s adjuster, David Russo, testified that during the course of his employment as an adjuster, he had opportunities to observe cars repaired by different body shops and repair shops. He stated that it was his opinion that it should have taken five to six weeks for the repairs to have been made. He further stated that if there was a problem in locating body parts, which on American cars was not very common, it could take as long as eight weeks.

Ray Chevrolet’s service manager, Larry Denais, testified that assuming the original estimate had included all of the necessary parts, it should have taken only three months for the repairs to be completed. A longer period would be required if necessary parts were not available. Denais further testified that as of August, 1979, no repair work on Simon’s car had commenced. A period of at least three months passed before Ray Chevrolet began work on Simon’s car.

Based on the record, we conclude that a maximum period of four months should have been required to repair Simon’s car. This conclusion takes into consideration any delays caused by the unavailability of parts. From this conclusion, we determine that the nine month period it actually took for the repairs to be made was an unreasonable time.

When an insurer elects to restore a wrecked vehicle to its former condition, rather than pay for its total loss, it must have the car repaired within a reasonable time. The failure to do so, even though possibly caused by its repairman’s inability to obtain necessary parts, constitutes arbitrary action which subjects the insurer to the penalty and reasonable attorney’s fees provided in LSA-R.S. 22:658. Hammack v. Resolute Fire Insurance Company, 233 La. 359, 96 So.2d 612 (La.1957); Lonco Trucking v. American Road Ins. Co., 378 So.2d 569 (La.App. 3rd Cir.1979). We therefore hold that the unreasonable time that it took Allstate to have the repairs made to Simon’s ear subjects them to the penalty and attorney’s fee provided for in LSA-R.S. 22:658.

As to the attorney’s fees, the record contains a stipulation in the amount of $2,273.00. To this we grant an additional $750.00 for the time and effort spent on appeal.

The penalty to be imposed will be 12% on $3,465.00 (the total loss value of the vehicle as stipulated by the parties). Allstate argues that the 12% should be imposed on the difference between the total loss value and the amounts tendered by Allstate for the repair costs. We disagree. The penalty is being assessed not because the repair costs were not tendered timely but because the repairs were not completed timely. To allow a deduction for the repair costs tendered in a situation such as the present case would defeat the purpose of the penalty provision. For example, in Lonco Trucking v. American Road Ins. Co., supra, the repair costs paid by American were $22,000.00 while the actual value of the truck was $17,000.00. Using Allstate’s computation, no penalty would be owed even though American was arbitrary in not repairing the truck timely. This is not the result contemplated by LSA-R.S. 22:658. Therefore, the 12% penalty is to be imposed on the total loss value of the automobile.

LOSS OF USE AND PROPERTY DAMAGE

Our second issue to resolve is whether Simon is entitled to recover for loss of use and for property damage to his automobile. The record reveals that Simon’s car was parked on Ray Chevrolet’s lot from the middle of April, 1979, to August, 1979, before repairs were commenced. During this period the windows were rolled up. Simon testified that the only time the car was moved was when the grass on the lot had to be cut. This exposure caused the leather upholstery and dashboard of Simon’s car to crack. Simon demanded that Ray Chevrolet remedy this damage but they refused. Simon’s suit seeks recovery for this property damage as well as for loss of use of his automobile.

Relying on our decision in Lonco Trucking v. American Road Ins. Co., supra, we hold that Allstate is liable in damages for loss of use and for the property damage incurred. When Allstate exercised their option to make payment by repair, they entered into an agreement or contract to repair through their agent, Ray Chevrolet. This agreement included the obligation of timely repair. Allstate breached their agreement by failing to have the repair work performed timely. Damages for breach of repair contracts include loss of use under LSA-C.C. Article 1934. Henry Waters Truck and Tractor Co., Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir.1973) on Reh., writ denied, 279 So.2d 206 (La.1973); Lonco Trucking v. American Road Ins. Co., supra. Allstate, as principal, is liable to third persons for the acts committed by their agent, Ray Chevrolet. LSA-C.C. Article 2320; Reilly v. Houma Body & Fender, Inc., 364 So.2d 201 (La.App. 1st Cir.1978). Therefore, Allstate is also liable for the property damage to Simon’s car caused by the negligent acts of their agent, Ray Chevrolet.

We are unable to determine from the record the amount that Allstate owes Simon for loss of use and property damage. Damages for loss of use are owed for the part of the repair period which was unreasonable. The record reveals that Ray Chevrolet last performed work on Simon’s car on January 30, 1980, but there is testimony in the record that the automobile still needs repair work on its frame. Until it is determined if repairs have been completed or when repairs were completed we cannot ascertain the part of the repair period which is unreasonable. For this reason we remand the case to the trial court in order to determine the repair period which was unreasonable and then to set the appropriate award for loss of use.

As to property damage, we are unable to evaluate the measure of damage from the record before us. We remand the case to the trial court to determine the measure of property damage. '

THIRD PARTY DEMAND

In the district court proceedings, Allstate filed a third party demand against Ray Chevrolet seeking indemnity or contribution. Because we reverse the lower court’s judgment in favor of these defendants, we now consider Allstate’s third party demand against Ray Chevrolet. Bond v. Commercial Union Assur. Companies, 387 So.2d 617 (La.App. 3rd Cir.1980); 407 So.2d 401 (La.1981).

It has long been held in Louisiana that a party not actually at fault, where liability results from the faults of others, may recover by way of indemnity from such others. Bewley Furniture Co., Inc. v. Maryland Casualty Co., 285 So.2d 216 (La.1973). Allstate’s liability for property damage results from the fact that it, as principal, is liable to third persons for the acts committed by the agent. This liability arises solely from the actions of Ray Chevrolet in leaving Simon’s automobile exposed to the summer elements for an extended period of time. We conclude that Allstate should be indemnified in full by Ray Chevrolet for the sum the trial court determines is owed for property damage.

Allstate’s liability for loss of use does not result solely from the actions of their agent, Ray Chevrolet. Allstate is responsible for not correctly evaluating the damage to Simon’s car thereby causing delay in the time required to complete repairs. Ray Chevrolet caused further delay by not commencing the repair work timely. Both of these factors contributed to the unreasonable time it took to repair Simon’s car, if indeed it is fully repaired. Therefore, Allstate is not entitled to be fully indemnified for the damages they must pay for loss of use. We conclude that Allstate is entitled to be indemnified by Ray Chevrolet for only one-half of the amount it owes for loss of use.

For the reasons set forth herein, the judgment of the trial court is reversed. Accordingly, it is Ordered, Adjudged and Decreed that there be judgment in favor of Percy Louis Simon against Allstate Insurance Company for attorney’s fees in the full sum of Three Thousand Twenty-Three and No/100-(3,023.00)-Dollars and for a penalty of 12% on Three Thousand Four Hundred Sixty-Five and No/100-($3,465.00)-Dollars.

It is further Ordered, Adjudged and Decreed that there be judgment in favor of Percy Louis Simon and against Allstate Insurance Company for damages for loss of use and property damage, the sum of damages to be determined by the trial court on remand.

It is further Ordered, Adjudged and Decreed that there be judgment in favor of third party plaintiff, Allstate Insurance Company, against third party defendant, Ray Chevrolet Olds, Inc. for the full sum Allstate is called upon to pay for property damage and for one-half of the sum Allstate is called upon to pay for loss of use said sums to be determined by the trial court on remand.

REVERSED, PARTIALLY RENDERED AND REMANDED.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Ramson K. VIDRINE, Plaintiff-Appellant, v. Sylvan CARMOUCHE and Jennie Tassin Carmouche, Defendants-Appellees-Appellants.
    No. 82-243.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      J. Jake Fontenot, of Rozas, Manuel, Fon-tenot & McGee, Mamou, for plaintiff-appellant.
    Chris J. Roy, Alexandria, for defendants-appellees-appellants.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Dr. Ramson K. Vidrine, commenced this suit seeking contribution allegedly owed to him by defendants, Sylvan and Jennie Carmouche, resulting from plaintiff’s payment of a promissory (hand) note executed by him and defendant Sylvan Carmouche. Additionally, Doctor Vidrine seeks recognition of a collateral mortgage given by the parties herein securing a collateral mortgage note executed by Doctor Vidrine and Sylvan Carmouche and pledged to secure the aforesaid promissory note. From a judgment of the district court casting defendants in judgment in solido for contribution and denying recognition of the pledge and collateral mortgage, both parties have appealed. We affirm in part and reverse in part.

This action arises from an apartment building venture between Doctor Vidrine and Sylvan Carmouche. Each was the owner of an undivided one-half interest of the venture’s assets and they shared the liabilities and losses by the same ratio. To secure financing of the aforesaid project, Doctor Vidrine and Sylvan Carmouche, together, executed a hand note on September 22, 1979, in the amount of $37,287.55. The hand note was secured by the pledge of a collateral mortgage note executed by Doctor Vidrine and Mr. Carmouche in the amount of $38,000.00, and was originally pledged to Union Bank as security for the hand note. The mortgage securing said note was executed by Doctor Vidrine and both Mr. and Mrs. Carmouche.

The parties contemplated repaying the note from the rental income derived from the apartment building, however, the venture became unsuccessful and after failing to make the necessary payments thereon, the hand note was referred by Union Bank to its attorney for collection. Formal demand was made upon Doctor Vidrine for payment of the entire outstanding amount. In an effort to avoid the impending lawsuit Doctor Vidrine contacted his local bank, Evangeline Bank and Trust Company of Ville Platte, and made arrangements with them to purchase the note. On January 15, 1981, a representative of Evangeline Bank went to the Union Bank and purchased the hand note from Union Bank and received a written assignment of the note and accessory collateral mortgage. Thereafter plaintiff secured funds from the Evangeline Bank and used those secured funds to pay Evangeline both his portion of the hand note and that of Sylvan Carmouche, whereupon Evangeline transferred possession of the hand note and collateral mortgage note to plaintiff. This action followed.

On appeal defendants contend that the trial court erred in:

(1) overruling defendants’ peremptory exception of no right of action;

(2) rendering judgment against Jennie Carmouche inasmuch as she was not a party to either the promissory note or collateral mortgage note sued upon herein;

(3) refusing to allow defendants to file an amended answer and reconventional demand; and

(4)failing to grant defendants judgment on the pleadings.

Conversely, plaintiff contends that the district court erred in:

(1) failing to recognize that the pledge of the collateral mortgage note and the accompanying collateral mortgage secured the indebtedness of Sylvan Carmouche and that Doctor Vidrine was vested with the same rights arising from the pledged security as his transferor, Evangeline Bank, upon payment of the note it secured; and

(2) allowing defendants to set off $2,000.00 allegedly paid by them on the sued upon note.

Defendants contend on appeal that the trial court erred in failing to sustain their exception of no right of action. Their claim stems from their allegations that there was no formal assignment from the Evangeline Bank to Doctor Vidrine.

Under the commercial laws of La. R.S. 10:3-101 et seq., the holder of an instrument payable to his order may transfer it for value without endorsing the instrument (see La.R.S. 10:3-201 cited below). N.E. England Associates, Inc. v. Davis, 333 So.2d 696 (La.App. 4th Cir.1976). However, if the face of the instrument indicates title is in any person other than the possessor, the burden is upon the possessor to prove his ownership. He must prove a valid transfer or lose his right to sue on the instrument. Richmond v. Bode, 216, So.2d 348 (La.App. 4th Cir.1968); N.E. England, supra.

A review of the record convinces us that there was a valid transfer. At trial testimony was solicited from the vice-president and loan officer of Evangeline Bank, Jimmy Vidrine. Mr. Vidrine testified that subsequent to being assigned the hand note from Union Bank, Evangeline Bank sold the note to Doctor Vidrine for the total amount owing thereon. The payment of the indebtedness and the surrender of the instrument to plaintiff constitutes a valid transfer even lacking Evangeline Bank’s endorsement. We agree with the trial judge that plaintiff sustained his burden of proof of ownership of the sued upon note, and therefore the court below properly denied defendants’ exception of no right of action.

Finding a valid transfer, plaintiff avers that the trial court erred in failing to recognize the collateral mortgage securing the debt. We agree.

La.R.S. 10:3-603 establishes one’s right arising out of payment or satisfaction of an instrument. It reads in pertinent part as follows:

“(1) The liability of any party is discharged to the extent of his payment or satisfaction to the holder, .... ” (Emphasis added).
* * * * * 5k
“(2) Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee.” (Emphasis added).

In conjunction therewith, La.R.S. 10:3-201 recognizes that the transferee has the same rights as his transferor. It states in part:

“(1) Transfer of an instrument vests in the transferee such rights as the transfer- or has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.
(2) A transfer of an interest created in an instrument by way of security vests the foregoing rights in the transferee to the extent of the interest transferred.”

By payment of the note Doctor Vidrine was discharged to the extent of his payment, and upon surrender of the instrument to him, he acquired the rights of a transferee and was entitled to proceed against defendant Sylvan Carmouche for that amount paid on said defendant’s behalf. Evangeline Bank, plaintiff’s transferor, as assignee of the promissory note from Union Bank, received the hand note secured by the collateral mortgage note and accompanying collateral mortgage. By transferring the note to plaintiff, Evangeline Bank’s rights to rely on the given security vests with plaintiff to the extent that defendant Sylvan Carmouche remained liable on the note to plaintiff as aforementioned. Therefore, we find that the trial court erred in failing to recognize plaintiff’s right to the security of the collateral mortgage.

Since defendant Jennie Carmouche neither signed the hand note or the collateral mortgage note she cannot be held solidar-ily liable with her husband thereon. However, as previously discussed, plaintiff is entitled to recognition of the mortgage given to secure the collateral mortgage note which was subsequently pledged to secure the hand note. Accordingly, we reverse that portion of the judgment below which casts Jennie Carmouche in judgment.

Defendants next contend that the trial court erred in refusing to allow them to file a reconventional demand and/or amended answer. Defendants’ request came at the start of the trial approximately ten months after defendants had filed their answer.

Under La.C.C.P. Article 1033 an incidental demand may be filed with leave of court only, once an answer has been filed, and only if it will not retard the progress of the principal action. The facts as presented by the record show that the trial had been postponed three times prior to defendants’ attempt to file their reconventional demand at the beginning of the trial. The proposed reconventional demand’ came some six months after the completion of discovery, and as aforesaid, some ten months after defendants had filed their answer to plaintiff’s petition. We do not feel that under these circumstances the trial judge abused his discretion in refusing to allow defendants’ reconventional demand.

Likewise, under La.C.C.P. Article 1151 and the jurisprudence, when there is no written consent by the adverse party, it is within the sound discretion of the trial court to permit or refuse to permit an amendment to the petition or answer after answer has been filed. Here, we do not find that the trial court abused its discretion for refusing to permit the requested amendment to the answer.

Notwithstanding the fact that the trial judge refused to let defendants amend their answer to plead an affirmative defense, the trial judge did allow defendants to introduce evidence, over plaintiff’s objection, relative to payments made on the note by them. Furthermore, defendants were allowed a set off for one-half of the amount previously paid by them. Plaintiff avers that in so doing the trial judge erred. We disagree.

La.C.C.P. Article 1154 provides:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.” (Emphasis added by Court of Appeal).

It is well settled that the trial judge has great discretion in deciding whether or not to allow evidence objected to on the grounds that it is not within issues raised by the pleadings. Mouledous v. Poirier, 221 So.2d 291 (La.App. 4th Cir.1969); Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir.1967); Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir.1964), writ refused, 246 La. 598, 165 So.2d 486 (1964).

Inasmuch as the evidence introduced reflects payments on the note by Sylvan Car-mouche, and considering that plaintiff failed to show that he was prejudiced in maintaining his action on the merits by the introduction of such evidence, we find no abuse of discretion.

Lastly, defendants contend that the trial court erred in refusing to grant them judgment on the pleadings. Our perusal of the pleadings in a view most favorable to plaintiff convinces us that the trial court did not abuse its discretion in rejecting defendants’ request.

For the above and foregoing reasons the judgment of the district court is reversed in part, affirmed in part, and recast as follows:

It is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Ramson K. Vidrine, and against defendant, Sylvan Carmouche, in the full sum of Seventeen Thousand, Three Hundred and Twenty-one and 68/100 ($17,-321.68) Dollars, together with legal interest thereon from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Ramson K. Vidrine, and against the defendants, Sylvan Carmouche and Jennie Carmouche, recognizing plaintiff’s lien in the amount of the judgment granted him herein, under that certain collateral mortgage from Ramson K. Vidrine, Sylvan Carmouche, and Jennie Carmouche to the Union Bank dated September 22, 1976, and recorded on that same date, bearing entry number 279844 in Mortgage Book 310 of the records of Avoyelles Parish against the following described property situated in the Parish of Avoyelles, State of Louisiana, to-wit:

“1. Two (2) certain lots or parcels of ground, together with all buildings and improvements thereon, situated, lying and being in the 6th Ward of the Parish of Avoyelles, Louisiana, and in the SE/4 of Section 24, T2N, R4E, the same being further and more particularly described and designated as Lots 26 and 27 of Block B, Bobby Bayou Estates, Inc., as per plat of survey thereof recorded in Plat Book 15, page 181, and being the same acquired 'by Ramson K. Vidrine and Sylvan Car-mouche from Bobby Bayou Estates, Inc., on June 4,1976, deed recorded in Conveyance Book A-274, page 177, all of the records of Avoyelles Parish, Louisiana.
2. A certain lot or parcel of ground on the North side of Laurel Street in the Town of Marksville, Parish of Avoyelles, Louisiana, the same fronting 208 feet on said Laurel Street by a depth of 416 feet between parallel lines, and bounded North by property now or formerly belonging to Barton Hamilton, South by said Laurel Street, on the East by C.A. Riddle, Jr., Estate, now or formerly, and West by property of Naomi Tassin Briggs. Being the same acquired by Sylvan Carmouche from Naomi Tassin Briggs June 4, 1969, deed recorded in Conveyance Book A-234, page 719, records of Avoyelles Parish, Louisiana. LESS and to be deducted therefrom a lot in the southwest corner of the above fronting 108 feet by a depth of 150 feet between parallel lines as described in Mortgage Book 28, page 686, and a lot sold to Raymond Dauzat et ux on December 28,1970, deed recorded in Conveyance Book A-241, page 879, all of the records of Avoyelles Parish, Louisiana.”

All costs at trial are assessed against defendant, Sylvan Carmouche. Costs on appeal are assessed one-half (V¿) against plaintiff and one-half (V2) against defendant, Sylvan Carmouche.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

In the judgment rendered by us herein, plaintiff, Ramson K. Vidrine, was awarded the sum of $17,321.68 against the defendant, Sylvan Carmouche. In the judgment we inadvertently granted the plaintiff legal interest on that amount from date of judicial demand until paid. Plaintiff’s rights to interest and attorney fees are established under the collateral mortgage referred to in the judgment, and hence our reference to legal interest therein should be and is hereby deleted therefrom.

In all other respects the judgment rendered is to remain unchanged, and both applications for rehearings are hereby denied.

      . The trial judge awarded plaintiff judgment in the sum of $17,321.68 which represents one-half (Va) of the amount paid by plaintiff on the outstanding indebtedness less $2,000.00 granted by the court as a set-off representing one-half (V2) of the amount previously paid by Sylvan Carmouche on the note.

      . The mortgage securing the pledged note was given on property owned by Doctor Vidrine and the Carmouches, upon which the apartments were to be built.

      . Initially, defendants attempted to file a recon-ventional demand which was denied by the trial judge. Thereafter, defendants sought to amend their answer to raise an affirmative defense which in essence makes the same allegations as the denied reconventional demand. The trial judge likewise denied defendants’ request to amend their answer.

      . La.C.C.P. Article 1033 states as follows:
      “An incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
      An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.
      An incidental demand that requires leave of court to file shall be considered as filed as of the date it is presented to the clerk of court for filing if leave of court is thereafter granted.”

      . In pertinent part La.C.C.P. Article 1151 provides:
      “A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
      A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.”

      . Joseph A. Oster & Assoc., Inc. v. Car Wash Center and Owl, Inc., 330 So.2d 688 (La.App. 4th Cir.1976); Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir.1973); Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir.1967).


author: STOKER, Judge.

text:
    Walter J. LaBORDE, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant-Appellant.
    No. 82-263.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 30, 1982.
    Gist, Methvin, Hughes & Munsterman, H.B. Gist, Jr., Alexandria, for defendant-appellant.
    Paul G. Mayoral, New Orleans, for plaintiff-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is an appeal from an award made to plaintiff on the grounds that the defendant-appellant, General Motors Corporation (General Motors), sold to the plaintiff a pickup truck which had a defective accelerator which stuck while the plaintiff was driving and caused an accident. The trial judge based the award on the fact that General Motors admitted the defect, as evidenced by a recall campaign of trucks of the same model regarding defective accelerators. Because we find that plaintiff has failed to prove that the admitted defect could have been the cause of the accident and because we find that the single instance of plaintiffs accelerator sticking would not justify a conclusion as to the existence of an unknown manufacturing or design defect, we reverse.

On January 2, 1979, the plaintiff, Dr. LaBorde, was coming home from duck hunting at approximately 10:00 AM on a highway north of Hessmer, in Avoyelles Parish, when he noticed a vehicle approaching at a rapid speed from the rear. The plaintiff’s vehicle was approaching a curve. The plaintiff testified that because he feared an accident, he veered to the right shoulder and placed his right tires on the shoulder to allow the vehicle to pass. The other vehicle passed and was not involved in plaintiff’s mishap. The plaintiff testified that as he veered back onto the road, he attempted to decelerate, but the accelerator stuck and his vehicle increased in speed. He subsequently lost control, his vehicle veered across the opposite lane and turned on its left side and slid across a driveway into a tree. The plaintiff had experienced no accelerator sticking difficulties prior to the accident, nor did he after the accident. The plaintiff was not physically injured and sued for property and general damages.

Defense witnesses produced a portion of a computer print-out as evidence that General Motors sent to Dr. LaBorde a letter in the Fall of 1977 which was approximately one year and three months prior to the accident. The print-out was a General Motors mailing list used to send a notice of recall and repair (referred to as a product safety campaign letter) for an accelerator defect in trucks of the same model as that which was wrecked. The defect described in the notice was that the accelerator was likely to catch on the rubber floor mat of the vehicle. It would catch if the driver of the vehicle had fully applied the accelerator enough times for the accelerator pedal to wear a hole in the rubber mat and the carpeting of the floor.

The plaintiff and his wife testified that they did not receive the 1977 letter from General Motors. However, in March 1979, three months after the accident, the plaintiff did receive a letter from Ideal Chevrolet, a local Chevrolet dealership, requesting that he bring his truck in to repair the accelerator difficulty. The plaintiff complied with this request.

One of the defense witnesses testified that he inspected the vehicle but found no holes in the floor mat which would have caused the accelerator to catch as described in the General Motors notice. Photographs present in the record show that there were no such holes. Dr. LaBorde testified he had never changed the carpet or floor mat.

For plaintiff LaBorde to prevail in this action it was necessary that he prove his Chevrolet pick-up truck contained a defect and that defect caused his accident. Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971); LoBrono v. Gene Ducote Volkswagen, Inc., 403 So.2d 723 (La.1981). See discussion and citations in Trahan v. Highlands Ins. Co., 343 So.2d 1163 (La.App. 3rd Cir.1977), writ denied, 346 So.2d 208 (La.1977). More specifically plaintiff must have proved his accelerator stuck as a result of a defect in manufacture which resulted in his losing his control. The trial court found this to be the case and held for the plaintiff. The trial court’s finding was clearly wrong.

The error of the trial judge consisted in confusing the acknowledged defect described in the product safety campaign letter of General Motors, a defect consisting of a mere potential, with the actual development of the kind of defect which could cause an accelerator to stick. The only defect acknowledged by General Motors in the letter was that in certain of its trucks “[t]he accelerator pad rod, in combination with the pedal installed on subject vehicles, may cut through the floor pan rubber mat or .carpet into the thick resilient insulation underneath during heavy or repeated full throttle applications.” (Emphasis supplied.)

The letter further explained that if this cutting did, in fact, take place, then the accelerator pedal rod might catch in the mat or carpet and stick. It is obvious that as long as the rod did not cut through, there was no actual extant condition which would cause an accelerator to stick. All that was present in LaBorde’s truck was the potential that the rod might at some time cut through the mat or carpet into the insulation pad underneath. Had the potential actually developed, then the vehicle could be assumed to have a kind of defect which more probably than not caused the accelerator to stick.- However, this feared result did not develop and was not existent.

The mere potential for the pedal rod and the pedal to cut the pads could not cause a sticking of the accelerator. The potential or possibility had to develop into actuality before sticking could result from the acknowledged defect. Inasmuch as the evidence shows that the feared result of a cut in the floor mat or carpet did not develop, the trial court was clearly wrong in holding that the defect acknowledged by General Motors Corporation was a defect which caused Dr. LaBorde’s accelerator to stick.

The analysis above may be stated in terms of causation. As we pointed out it was necessary that plaintiff prove both the existence of a defect and that the defect caused the accident. The mere potential or possibility for the floor pads to become cut (which would present a further possibility for the accelerator to catch in the mat or carpet) was not a cause in fact of plaintiff’s accident. The sticking of the accelerator had to have resulted from some cause other than the possibility, never realized, contemplated in defendant’s safety campaign letter.

Does the sticking of the accelerator give rise to a presumption that some other unknown defect in the pickup truck caused the accelerator to stick?

Dr. LaBorde testified positively that the accelerator stuck. The only evidence we have to consider is one isolated instance of a malfunction. It never stuck prior to the accident nor afterwards. No one, apparently, knows why the accelerator stuck. Although the accelerator did not stick because of a cutting of the floor pads, it may be that plaintiff is resting his case on some unknown (assumed) defect.

We would not be warranted in jumping to the. conclusion that the sticking occurred because of some unknown defect in design or manufacture of the truck. Hartford Fire Insurance Co. v. Maytag Co., 374 So.2d 1269 (La.App. 3rd Cir.1979). The sticking presumably occurred because of some mechanical failure, but such a mishap is not necessarily attributable to defect in design or manufacture. One might reasonably speculate, for example, that the sticking resulted from maintenance problems. Therefore, the plaintiff has not shown that the sticking of the accelerator more probably than not resulted from an unknown manufacturer or design defect.

Plaintiff relies on a number of cases in support of his argument that defendant manufacturer is liable. In all of those cases a developed and existing defect caused a breakdown in the vehicles involved as contrasted with a single isolated instance of a malfunctioning accelerator. The facts of those cases and the facts and circumstances of Dr. LaBorde’s case before us are not similar. Therefore, the cases relied on by him are not applicable.

For the foregoing reasons, the judgment •appealed from is reversed and judgment is hereby rendered in favor of defendant, dismissing plaintiff’s suit. All of the costs of this proceeding, both in the trial court and in this appeal, are assessed to plaintiff-ap-pellee.

REVERSED,,


text:
    CONCERNED CITIZENS OF CENLA, et al., Plaintiffs-Appellants, v. Paul HARDY, Secretary of Louisiana Department of Transportation and Development, Defendant-Appellee.
    No. 82-265.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 28, 1982.

      Chris J. Roy, Alexandria, for plaintiffs-appellants.
    William J. Doran, Jr., Baton Rouge, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

In this suit, Concerned Citizens of Cenia, Inc. and Lorena Pospisil seek a permanent injunction and/or declaratory relief to prevent the State of Louisiana, Department of Transportation and Development (hereafter DOTD) from proceeding with construction of a vertical lift-style bridge in Rapides Parish, Louisiana. In support of their demand, the plaintiffs contend that DOTD failed to comply with the requirements of the National Environmental Policy Act (42 U.S.C.A. § 4321 et seq.). The defendant filed an exception of res judicata which was referred to the merits. After trial, the court below rendered judgment sustaining the exception of res judicata and dismissing plaintiffs’ demands. Plaintiffs appeal this judgment. We affirm.

This dispute was originally considered in Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981), writs refused, La., 404 So.2d 274, wherein the plaintiffs sought the same relief they now seek. The trial court, in the prior suit, granted the relief sought by the plaintiffs, enjoining any further action in connection with the bridge project. We reversed, concluding that a proper environmental study was made in compliance with NEPA. The plaintiffs’ application to the Supreme Court for supervisory writs was denied. Thereafter, the plaintiffs brought the present suit.

The bridge in question, which is now under construction, is a semi-high level vertical lift span which will cross the Red River and connect Main Street in downtown Pine-ville with Jackson Street in downtown Alexandria. The bridge is being built to replace the Murray Street Bridge, also a lift-style bridge, which in its present condition, is hazardous to the travelling public. While the project was in its planning stages, the DOTD prepared a “Draft Negative Declaration” and later a “Final Negative Declaration” pursuant to 42 U.S.C. § 4332(2)(C). These documents reflected the conclusion of the DOTD that the proposed bridge would have no significant impact on the environment of the Alexandria-Pineville area. Throughout this controversy, the plaintiffs have maintained that the proposed bridge would have a significant impact on the environment due to the frequency with which the bridge would be opened to accommodate barge traffic on the Red River. They argue that the effect such openings will have on traffic, air pollution, noise, loss of man hours, etc., amounts to a significant impact, for which NEPA requires an “Environmental Impact Statement” rather than a “Negative Declaration”. The plaintiffs’ allegation of non-compliance with NEPA is based on the failure of the DOTD to submit an “Environmental Impact Statement” rather than a “Negative Declaration”.

During the trial of the first suit, it was learned that the United States Corps of Engineers was considering a proposal to raise the pool level of the Red River at Alexandria from 58 to 64 feet. The trial was recessed for 30 days to allow the DOTD and the Federal Highway Administration to study the environmental impact that the bridge openings would have on the area given a 64 foot pool level. When trial resumed, testimony was given on behalf of the DOTD and the FHA that the proposed change in the pool level would not change their opinion that the proposed bridge would have no significant environmental impact on the Alexandria-Pineville area. Following the final resolution of the first suit, the Corps of Engineers completed its study of the pool level of the Red River and decided to recommend that the pool level be raised to 64 feet at Alexandria.

Following the completion of this study by the Corps, the plaintiffs brought the present suit. In opposition to the exception of res judicata, they argue that significant facts have been modified so as to create new legal, conditions between the first and second suits. In particular, they urge that when we considered the first suit, we failed to take into account the possibility that the pool level might be raised to 64 feet because we regarded that possibility as too speculative. They assert that as a result of the recent Corps of Engineer’s study, a change in the pool level is a strong probability, and that we must now resolve the issue of compliance with NEPA in light of the proposed change in the pool level.

In Louisiana, the doctrine of res ju-dicata applies when the following conditions are met: the thing demanded must be the same; the demand must be based on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. LSA-C.C. Art. 2286; R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980).

In the present suit, all parties agree that the thing demanded, an injunction enjoining construction of the bridge, is the same. Likewise, all agree that the demand is between the same parties, and formed by them against each other in the same quality. Thus, the narrow issue before us is whether the present suit is based on the same cause as the prior suit. The plaintiffs argue that the cause of the present action is the DOTD’s failure to comply with NEPA with reference to a 64 foot pool level, and that res judicata does not bar this suit because we did not previously consider this issue. This assertion is erroneous.

The issue of the environmental impact of the bridge given a 64 foot pool level was considered extensively in the prior suit by the trial court and by this court on appeal. The trial was recessed for 30 days in order that the DOTD and the FHA might study the proposed change. After the study, the DOTD concluded that the increased number of bridge openings would not result in a significant environmental impact. We considered this conclusion and determined that the DOTD had complied with NEPA. The fact that we considered the sufficiency of the DOTD’s study with regard to the 64 foot pool level, is evident from our opinion in the first suit, where we stated:

“These later studies revealed that at pool stage 64' the proposed bridge would be required to open for 64% of the barge traffic. The following analysis by the Corps of Engineers prepared in May of 1980 reflects the anticipated tows monthly with River Reach Up to Shreveport, Louisiana, and with River Reach Up to Shreveport, Louisiana, and Daingerfield, Texas:
Considering the above analysis it is seen that in the year 2005 with River Reach Up to Shreveport, Louisiana, there would be approximately five openings per day and with River Reach Up to Daingerfield, Texas there would be approximately nine openings per day. Defendant’s experts all testified that the number of openings anticipated as a result of such analysis is extremely low. There testimony in this regard is corroborated by reference to a “Summary of Navigation Openings-Movable Bridges — 1979” which was introduced in evidence as D-33.”

Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981) at p. 1073.

The plaintiffs attach great significance to our observation in the prior opinion that the proposed change in the pool level was only in its planning stages. They argue that this language revealed an intent on our part to consider the sufficiency of the DOTD’s study with regard to the 58 foot pool level only. ■ The clear language of our opinion reveals otherwise. We prefaced the observation by stating that the responsible agencies (including the DOTD) did in fact give consideration to the proposed change, and we later stated our conclusions as follows:

Suffice it to say that the record reflects that the DOTD in consultation with the FHA took a “hard look” (State of California v. Bergland, D.C., 483 F.Supp. 465) at the consequences related to projected bridge openings and reached the conclusion that such openings would have no significant impact on air pollution, traffic congestion and other environmental considerations. It is true that representatives of both agencies readily admitted that no specific study was made of the loss to employers and employees in time and money which might be occasioned by projected bridge openings, however, we attach no particular significance to this alleged inadequacy.. ..

Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3rd Cir.1981) at p. 1074.

In conclusion, the sufficiency of the DOTD’s study of the environmental impact of the proposed Jackson Street Bridge with reference to a 64 foot pool level was considered in the first suit, both by the trial court and by this court on appeal. Thus, the exception of res judicata on behalf of the defendant is well founded and was properly sustained.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiffs-appellants.

AFFIRMED.

      . It should be noted that the unincorporated association known as “Concerned Citizens of Rapides Parish” was later incorporated as “Concerned Citizens of Cenia, Inc.”.

      . We observe now, as we did then, that a 64 foot pool level at Alexandria is by no means a certainty. Calvin Shelton of the New Orleans District Corps of Engineers testified in this case that while the Corps had determined that a 64 foot pool level is the one they would select, a final determination to raise the pool stage to 64 feet has not been made. In addition, the Mayor of Alexandria testified that the City Council would probably file suit in federal court to prevent the change in the pool level due to the possible adverse effects it would have on drainage in the city.


author: FORET, Judge.

text:
    Cindy TAYLOR, Individually, etc., et al., Plaintiffs-Appellants, v. William R. TANNER, II, et al., Defendants-Appellees.
    No. 82-272.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    Rehearing Denied Dec. 30, 1982.

      McHale, Bufkin & Dees, Louis D. Bufkin and Michael K. Dees, Lake Charles, for plaintiffs-appellants.
    Camp, Carmouche, Palmer, Barsh & Hunter, David R. Frohn and Randy J. Fuerst, Levingston, Tynes & Lyles, Maurice L. Tynes, Lake Charles, for defendants-ap-pellees.
    Before FORET, CUTRER and STOKER, JJ.
   FORET, Judge.

The sole issue presented is whether LSA-R.S. 22:1406(D)(l)(c), the so-called anti-stacking statute, prevents a plaintiff from stacking coverage on (1) the liability coverage of the tortfeasor vehicle; (2) the UM coverage on his host vehicle; (3) the UM coverage on his own vehicle and again, (4) the coverage in dispute, from a fourth vehicle. The trial court held, on motion for summary judgment, that plaintiffs could not stack coverage against the latter UM carrier, after having collected the - first three coverages hereinabove mentioned. We agree.

Plaintiffs’ decedent, one William R. Taylor, Sr., on or about November 11,1980, was a guest passenger in a vehicle owned and operated by Byron Champagne, when a pickup truck owned and operated by William Tanner struck the Champagne vehicle from the rear, causing fatal injuries to William Taylor.

After suit was filed, but prior to trial, plaintiffs settled with:

(1) Travelers Insurance Company, the liability insurance carrier of the Tanner vehicle, the tortfeasor;
(2) The host driver, Champagne’s, uninsured motorist carrier, Allstate Insurance Company; and
(3) Taylor’s uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, which insured a vehicle owned by Taylor.

The only defendant remaining at trial time was Home Indemnity Insurance Company, the uninsured motorist carrier of Betz Laboratories, Inc., decedent’s employer, who furnished a vehicle to decedent, Taylor, to be used in the course and scope of his employment. (Note that this vehicle was not owned by Taylor, and was not involved in the accident in question.) Nevertheless, plaintiffs seek to recover this third uninsured motorist coverage from Home Indemnity. As mentioned above, the trial court sustained a motion for summary judgment filed by Home Indemnity, dismissing Taylor’s suit against it. From this adverse ruling, the Taylors have appealed.

LSA-R.S. 22:1406(D)(1)(c) reads as follows:

“(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insur-anee or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (emphasis ours.)

In Courville v. State Farm Mutual Automobile Insurance Company, 393 So.2d 703 (La.1981), the Louisiana Supreme Court considered the above cited statutory provision, finding that the first paragraph of the statute prohibits stacking of uninsured motorist coverage but, an injured party may stack uninsured motorist coverages available to him if he can bring himself into the well-defined exception of the second paragraph, i.e.,

“when: (1) the injured party is occupying an automobile not owned by him; (2) the U/M coverage on the vehicle in which the injured party was an occupant is primary; and (3) should that primary U/M coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other U/M coverage available to him.”
See also Nall v. State Farm Mutual Automobile Insurance Co., 406 So.2d 216 (La.1981).

In this case, the plaintiff can stack one additional coverage. Mr. Taylor was occupying an automobile not owned by him; the uninsured motorist coverage on the host driver’s automobile was primary and that primary uninsured motorist coverage was exhausted due to the extent of the damage.

Plaintiffs selected uninsured motorist coverage from another policy, namely their own State Farm policy, which paid them the full policy limits under the uninsured motorist provision, $10,000. Having so selected, they are not permitted to stack the additional uninsured motorist coverage provided by Home.

In Courville, the Louisiana Supreme Court chose to adhere to a strict and literal interpretation of R.S. 22:1406(D)(l)(c) as follows:

“The Third Circuit Court of Appeal felt the Act was ambiguous as applied to these facts; therefore, they endeavored to ascertain the intent of the legislature. We do not deem such a journey necessary.
According to Louisiana Civil Code art. 13:
“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”
The letter of the Act which allows Joseph A. Courville, Jr., to stack these two policies may not be disregarded simply because of some notion that the legislature’s spirit behind the above statute is to prevent stacking in situations such as this. Of course, if that is the true spirit, then the legislature should amend the Act by providing in the second paragraph that an insured may not stack even if he is an occupant and a non-owner of the vehicle in which he is injured. For the present, a strict reading of the entire Act allows this plaintiff to recover.”
Courville v. State Farm Mutual Automobile Insurance Company, supra.

Adhering to the Supreme Court’s strict and literal interpretation, we hold that the plaintiffs, having already stacked their State Farm uninsured motorist coverage (excess) onto the uninsured motorist coverage of Allstate (primary), are not now permitted to stack any uninsured motorist coverage possibly afforded by Home for the reason that sub-paragraph (c)(ii) of the statute clearly and specifically provides that:

“In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.”

Learned counsel for plaintiffs would have us apply a different interpretation of what seems to us to be very clear statutory language and intent. Unfortunately, we cannot agree with counsel.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff s-appellants.

AFFIRMED.


author: CUTRER, Judge.

text:
    Terry A. RIVIERE and Jack G. Wurster, Plaintiffs-Appellants, v. James G. BETHARD, Defendant-Appellee.
    No. 82-282.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    John R. Dowden, Baton Rouge, for plaintiffs-appellants.
    James G. Bethard, Coushatta, for defendant-appellee.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Plaintiffs, Terry A. Riviere and Jack G. Wurster, sued defendants, James G. Be-thard and Ethel Rambin Jones, for the return of a deposit made during negotiations for the purchase of a motel located in Sabine Parish, Louisiana. The trial court sustained defendants’ motion for summary judgment and plaintiffs appealed. We reverse.

The only issue before this court is whether there exists a genuine issue of material facts.

The plaintiffs’ petition alleges that, on or about May 5,1980, plaintiffs were negotiating with Ethel Jones and her attorney, James J. Bethard, concerning the purchase of the Driftwood Motel by plaintiffs. Plaintiffs further state that the sale was contingent upon Wurster (plaintiff) receiving a large sum of money from a succession in which he was an heir. The understanding between the parties was that the money was to be received by Wurster before September 1, 1980. It is alleged that, pursuant to this oral agreement, Riviere, through his agent, Mr. Robert D. Haas, of Illinois, sent a $10,000.00 check to James Bethard on behalf of Ethel Jones. Plaintiffs further allege that the expected inheritance by Wurster did not materialize before September 1, 1980, and the sale could not be consummated. Plaintiffs made demand on defendants for the return of the $10,000.00.

By answer defendants deny that any agreement was contingent upon Wurster receiving an inheritance. Defendants allege that the terms of the agreement were orally reached on April 18, 1980. Defendants further allege that, as a result of five letters, introduced into evidence, the purchase agreement was actually consummated and the $10,000.00 was to be considered earnest money. Defendants contend that, since the $10,000.00 was to be considered earnest money, Ethel Jones was entitled to retain same as plaintiffs failed to consummate the sale.

The trial court sustained defendants’ motion for summary judgment and dismissed plaintiff’s claim. Plaintiffs appealed contending that issues of material fact existed.

SUMMARY JUDGMENT

This court recently reviewed the standards for determining the propriety of granting a motion for summary judgment. In Home Ins. Co. v. Simon, 411 So.2d 1268 (La.App. 3rd Cir.1982), we cited the discussion found in Chaisson v. Domingue, 372 So.2d 1225 (La.1979), where the Supreme Court stated:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, 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. La.Code Civ.P. art. 966; * * * Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. * * * The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. * * *” (Citations omitted.)

Summary judgment is not to be used as a substitute for a full trial of a controverted fact issue which is material to a decision in the case. The summary judgment procedure should be used cautiously and sparingly and any reasonable doubt should be resolved against the mover and in favor of a full trial on the merits. Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir.1974), writs ref’d, 302 So.2d 308 (La.1975). Moreover, the fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of a full trial on the merits to resolve the disputed issue. Dougharty v. Calkraft Paper Company, 335 So.2d 772 (La.App. 3rd Cir.1976).

The only evidence before the court, other than the pleadings and affidavits, are the five letters which we have referred to.

The letters, relied upon by defendants, reflect the following:

On Friday, April 25, 1980, Bethard wrote a letter to a Mr. Haas, plaintiffs’ agent in Illinois, which stated, in part, as follows:

“. . . The terms reached by the parties in our office in a meeting held on April 18, 1980 were as follows:
Sale Price shown on Deed $450,000.00
Down Payment 20,000.00
Credit Portion 430,000.00 at
11% simple interest payable in 180 monthly installments of $4,909.18."

On Monday, April 28, 1980, Haas mailed to Bethard a check for $10,000.00 which was accompanied by a cover letter which read as follows:

“Enclosed please find a check for $10,-000 to be held in escrow account for purchase of Driftwood Motel Sale to Terry Riviere and Jack Wurster.”

On May 8,1980, defendant Bethard wrote another letter to Haas concerning the proposed sale. Bethard pointed out a potential problem involving the acquisition of liquor licenses by non-residents (plaintiffs were residents of Illinois). Bethard indicated possible solutions to this problem including incorporation by plaintiffs and a lease purchase agreement between plaintiffs and defendant Jones. Enclosed with the letter was a proposed lease option agreement. Also enclosed in this letter was a receipt for $10,000.00 dated May 5, 1980, signed by Bethard and Jones. The receipt indicated the money was being “held in escrow pending the sale of Driftwood.” The receipt further indicated that, if the sale was not completed, through no fault of the seller, the $10,000.00 would be paid to the seller (defendant Jones) as damages. The receipt also stated the money would be returned to the plaintiffs if the sale was not completed “through no fault of the buyer.”

Sometime after May 8, 1980, but before July 8,1980, Riviere contacted Bethard and requested the return of the $10,000.00. Riviere indicated to Bethard that he, Rivi-ere, had heard that Jones no longer wanted to sell the motel to Riviere. On July 3rd, Bethard wrote to Riviere and said Jones was ready and willing to sell. Bethard pointed out that Wurster was in Louisiana at the time “discussing the proposed sale with [Jones].” On July 28, 1980, Bethard wrote to Riviere, in care of Haas, informing him that the $10,000.00 which had been held in escrow had been delivered to defendant Jones.

After the hearing on defendants’ motion for summary judgment the trial judge stated:

“... The Court finds that there was an agreement to sell concluded by the parties, and represented by the offer to sell and the acceptance, both in the writing by form of the letter enclosing the ten thousand dollars deposit.”

The trial judge then characterized the $10,-000.00 as “earnest money” and found plaintiffs had forfeited it by failing to complete the sale. We disagree.

The court found that the April 28th letter from Haas to Bethard was an acceptance to the terms included in Bethard’s letter of April 25th. The evidence does not support this finding. The record does not indicate that the $10,000.00 check was written in response to Bethard’s April 25th letter. There is no proof that Haas, in Illinois, received Bethard’s letter before sending the check three days later. Haas’ letter does not mention any of the terms found in Bethard’s letter. Neither does Haas’ letter accept the terms set forth in the offer.

The letters from Bethard to plaintiffs on May 8th and July 3rd both indicate that an agreement to sell had not been reached. The May 8th letter shows that the identity of the purchaser is yet to be determined. Bethard suggests plaintiffs may wish to incorporate rather than buy as individuals. The type of transaction is also in doubt. Bethard included with this letter a proposed lease option agreement. Clearly, negotiations were still in progress at this time and the parties were not in agreement.

Bethard’s July letter also indicates negotiations are in progress. Bethard indicates Jones is “still ready and willing to sell...” Also, Wurster was in Louisiana discussing the sale with Jones at this time. Again, it appears no agreement had been reached. Also, we note that the question of fact exists as to whether the negotiations included the condition that any sale would be contingent upon Wurster’s inheriting the money before September 1, 1980. We conclude that there exist genuine issues of material fact.

The characterization of the $10,000.00 as earnest money is also open to question. Be-thard points to the terms spelled out in the receipt he drafted for co-defendant Jones’ signature. There is no evidence in the record to support the trial judge’s finding that “[t]here does not appear to have been any disagreement as to the treatment of the ten thousand dollars...” Defendants have not shown that the plaintiffs even received the receipt nor is it shown that plaintiffs agreed with and accepted the terms as written by Bethard.

This case has several material fact issues which must be resolved at a trial on the merits. The decision of the court below sustaining defendants’ motion for summary judgment must be reversed and the case remanded for a trial on the merits.

For the reasons set forth, the judgment of the trial court is reversed and set aside. The suit is hereby remanded for proceedings in accordance with law and the views expressed herein. Costs of this appeal are to be paid by defendants-appellees.

REVERSED AND REMANDED.

      . Bethard filed an affidavit in support of the motion for summary judgment. This affidavit refers to the letters and makes substantially the same allegations as those contained in the answer. Plaintiffs’ affidavits make substantially the same allegations as is contained in the petition.