text:
    Ronald L. WATTERS and Carolyn Chaney Watters, Plaintiffs-Appellants, v. CITY OF BASTROP and Maryland Casualty Insurance Company, Defendants-Appellees.
    No. 15897-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Bruscato, Loomis, Deal & Street by Anthony J. Bruscato, Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by David H. Nelson, Monroe, for defendant-appellee Maryland Cas. Ins. Co.
    McLeod, Swearingen, Verlander & Dollar by Elmer G. Noah, II, Monroe, for defendant-appellee City of Bastrop.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   PRICE, Judge.

This is a suit for damages sustained by the plaintiffs and their minor children due to the flooding of their home by effluent from the City of Bastrop’s sewerage system. Plaintiffs appeal the trial court judgment in their favor, contending the damages awarded are inadequate. Defendants, the City of Bastrop and its insurer, have neither appealed nor answered the plaintiffs’ appeal. Thus, the sole issue for consideration is that of quantum.

It was found at trial, and is not disputed on this appeal, that the first floor of the plaintiffs’ two-story home was flooded with sewerage from the city sewer system seventeen times over a five-year period due to a defect in the system. The first sewer backup occurred in February 1978 and such occurrences continued on an intermittent and unpredictable basis through December 1982 due to a problem in the sewer system which had not been corrected at the time of trial. Of the itemized damages awarded by the trial court, plaintiffs complain that the amounts of $9,000 for mental anguish and suffering and $3,000 for the decreased value of plaintiffs’ home are inadequate. They further contend they are entitled to an award for the loss of use of their home.

Mr. Watters testified at trial that the flooding began each time in the downstairs bathroom which was centrally located, and continued until the entire first floor of the house was covered with water. He described the cleanup operations, the foul odor which lingered after each occasion of flooding, and the concern over the sanitary state of the home. He also testified that after the fourth flooding they were aware that this problem would continue to occur until the city fixed the system.

There were other inconveniences as well, such as making arrangements for the care of the children while the plaintiffs cleaned out the house, and waiting for the carpets to dry out before being able to return the house and the furniture to normal. Both Mr. and Mrs. Watters testified to their embarrassment due to the recurring nature of the backup, which became common knowledge in the community, and their anxiety over the uncertainty as to when the next flood was going to take place. They and one of their neighbors testified that on humid days the odor would sometimes become very strong and unpleasant again.

We recognize that before a court of appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. This determination rests upon analysis of the facts and circumstances peculiar to each individual case. Reck v. Stevens, 373 So.2d 498 (La.1979).

We conclude that an analysis of the facts revealed by the record in this particular case discloses an abuse of the trial court’s discretion. We consider the award of $9,000 in general damages for the plaintiffs’ mental anguish to be inadequate. In making such a determination, we take note of the recurring nature of the problem and the uncertainty of when another backup would occur, the numerous disruptions of the family’s normal living patterns, the unpleasantness of cleaning sewer water out of one’s home, and other inconveniences such as making arrangements for the care of the children and being unable to use the downstairs area for a length of time after each flooding.

Our review of prior awards in sewerage backup cases leads us to conclude that each major plaintiff should have been awarded at least $7,500 in general damages. For example, in Romero v. Town of Welsh, 370 So.2d 1286 (La.App. 3rd Cir.1979), the plaintiff was awarded $2,500 for the mental anguish and inconvenience of a one-time sewerage backup where the odor remained in the house for two weeks and the plaintiff could not use the first floor of his home. In Barbay v. Parish of East Baton Rouge, 343 So.2d 235 (La.App. 1st Cir.1977), writ refused 345 So.2d 62 (La.1977), the plaintiffs’ home was flooded by sewerage three times and each plaintiff was awarded $2,500 for mental anguish, embarrassment, and annoyance. The case most closely similar to the instant one is Falgout v. St. Charles Sewerage District #3, 351 So.2d 206 (La.App. 4th Cir.1977), writ denied 353 So.2d 1047 (La.1978) in which the plaintiff’s sewerage backup problems persisted over at least a three-year period. In that case the homeowner was awarded $7,500 for the mental anguish, inconvenience and discomfort. In light of the considerable mental anguish, embarrassment, inconvenience, and unpleasantness endured by these plaintiffs, we amend the award for general damages to $7,500 for each major plaintiff.

Plaintiffs further contend that the trial court erred in awarding only $3,000 for the decrease in the value of their home. There was conflicting testimony regarding this item of damages. Plaintiffs’ expert testified that he would place a $9,000 decrease on the market value of the house after the problem had been remedied and repairs made. This was based on his knowledge of depreciation of recently flooded homes in Monroe which were situated in a 500-year flood zone. Defendant’s expert testified that in his experience the market value of a flooded house decreases immediately after the flood and goes back up to the original value after a short period of time. He further testified that there is no market in homes flooded by sewerage to show that such houses decrease in value. He therefore appraised the market value of the house as though unflooded contingent upon correction of the sewerage problem and repair of the present damage.

It is axiomatic that where damages cannot be precisely and mathematically determined, the trial judge is vested with reasonable discretion in making awards for damage. Furthermore, where there is considerable variance in estimated damages, which renders calculation thereof difficult, much discretion is accorded to the trial judge to determine the amount of the award. See Smith v. Town of Logansport, 395 So.2d 888 (La.App.2nd Cir.1981), writ denied 400 So.2d 1379 (La.1981); Sahuque Realty Company v. Employers Commercial Union Insurance Co. of America, 327 So.2d 563 (La.App. 4th Cir.1976), writ denied 330 So.2d 617 (La.1976) and cases cited therein.

In light of the extreme variance between the opinions of the defendant’s expert and plaintiffs’ expert, and being mindful that evaluations of credibility are peculiarly the province of the trial court, we are reluctant to disturb the award made by the trial court to compensate plaintiffs for the decreased value of their house. Under the circumstances of the instant case, we cannot say that the trial judge abused his discretion in assessing the damage at $3,000.

Plaintiffs’ final contention is that they are entitled to a sum for the loss of use of their house. Plaintiffs remained in the house despite the flooding from the time of the first flooding until December 1, 1982. At trial they testified that they chose to move in with Mrs. Watters’ mother because of their frustration with the problem and because their youngest child was beginning to crawl. They offered no corroborative evidence that it was necessary for them to leave their home, either for health reasons or otherwise. We are in agreement, under these circumstances, with the trial court’s conclusion that the plaintiffs failed to sustain their burden of proving that it was necessary for them to leave the house. We therefore find no abuse of discretion in the denial of an award for loss of use.

For the reasons assigned, the judgment appealed is amended to award the plaintiffs the sum of $15,000 in general damages, $7,500 to Ronald L. Watters and $7,500 to Carolyn Chaney Watters. In all other respects the judgment appealed is affirmed. All costs of this appeal are assessed against defendants-appellees.

AMENDED and AFFIRMED.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Thomas DAYTON, Appellant.
    No. 15899-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.

      Allan R. Harris, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., M. Gay Caldwell McNeely, Asst. Dist. Atty., Shreveport, for appellee, State of La.
    Before PRICE, FRED W. JONES, Jr., and NORRIS, JJ.
   PRICE, Judge.

Defendant Thomas Dayton was convicted at a bench trial of the second offense of driving while intoxicated and was sentenced to serve 60 days in the parish jail and ordered to pay a fine of $500 plus costs. We granted defendant’s application for a writ of review primarily to determine if reversible error was committed by the trial court in permitting the state to present the testimony of a toxicologist disclosing the result of a chemical blood analysis as rebuttal evidence after the state had rested its case in chief. Since we have concluded reversible error was committed and the conviction must be set aside on this basis alone, we do not find it necessary to discuss the numerous other rulings complained of.

Defendant was stopped by state police officer Richard Christian on Louisiana Highway 1 near Caspiana in south Caddo Parish on suspicion of driving while intoxicated. Officer Christian was driving an unmarked vehicle and was not in uniform at the time he stopped defendant, so another unit was requested to assist him. Officer David Jett responded and was the officer who ultimately arrested defendant after administering a field sobriety test. Defendant voluntarily submitted to a chemical blood analysis in accordance with La.R.S. 32:661-669.

Before trial defendant moved for discovery of the results of any scientific tests and including specifically the testing of his blood for alcoholic content which the state intended to use at trial. No formal response was made by the assistant district attorney. Defendant’s counsel was apparently shown all documents or reports in the state’s file which included a copy of the Northwest Crime Laboratory report of the blood analysis.

On trial, the state, after presenting evidence of defendant’s prior conviction of driving while intoxicated, offered the testimony of officers Christian and Jett who made the initial stop and arrest of defendant. The results of the field sobriety test of Officer Jett was admitted over the objection of defendant. The state also offered the testimony of Glen S. Wood, the laboratory technician who extracted the blood sample from defendant on the date of the arrest. His testimony was offered for the purpose of establishing a chain of custody of the blood sample through laboratory analysis. Defendant objected to this witness’s testimony because of noncompliance with discovery and the objection was overruled.

The state then sought to introduce the laboratory report reflecting the results of the blood analysis. Defendant objected on the basis that the assistant district attorney had not notified defendant that the evidence was intended to be used at trial. The trial court sustained the objection and refused to permit the introduction of the report into evidence. At this point the state rested its case in chief.

The court ordered the completion of the trial to be scheduled approximately one month later. On the subsequent trial date after completion of defendant’s evidence, the state sought to introduce the testimony of Jimmy Barnhill, a toxicologist with the Northwest Louisiana Crime Laboratory who performed the chemical analysis on defendant’s blood. Defendant objected to this witness’s testimony as not being proper rebuttal. The trial court overruled the objection on the basis that defendant had denied under cross examination that he was intoxicated and this evidence was proper to rebut that testimony. We find this ruling to be in error.

The principles concerning the proper admission of rebuttal evidence are discussed in State v. Turner, 337 So.2d 455 (La.1976), in pertinent part as follows:

[1] The state may not reserve part of its case-in-chief for rebuttal testimony, after the defense has put on its case and when it can no longer present evidence to rebut the state’s case. This is contrary to statute, to ancient jurisprudence, and to rules of fair play.... (citations omitted)
In State v. Monroe, 205 La. 285, 17 So.2d 331, 332 (1944), we noted: “Rebutting evidence is that which is offered to explain, repel, counteract, or disprove facts given in evidence by the adverse party.” (Emphasis ours.) Again, in State v. Smith, 120 La. 530, 532, 45 So. 415 (1908), we noted that rebuttal evidence is “evidence which has become relevant or important only as an effect of some evidence introduced by the other side.”
... The decisions cited demonstrate two kinds of prejudice which may be sustained by a defendant through the admission in state rebuttal of evidence which should be introduced during the state’s case in chief:
(1) Since in Louisiana “the defendant is without right to rebut the prosecutor’s rebuttal”, La.R.S. 15:282, the defendant may be prejudiced by the denial to him of an opportunity to defend against new issues; and
(2) The production of strong prosecution evidence in chief after the defendant rests his case may unfairly emphasize the prosecution’s “rebuttal” evidence, contrary to the legislatively intended order of proof, La.C.Cr.P. Art. 765(5), designed from ancient experience to assure fairness in our criminal trials.
[3,4] The first type of prejudice may often be cured. If the trial court exercises its discretion to permit the state to offer in rebuttal material evidence inadvertently omitted from its case in chief, the prejudice thereby caused may normally be avoided by the trial court’s permitting the defendant to introduce additional evidence to defend against the new issue thereby raised. La.C.Cr.P. Art. 765(5). See State v. Scott, 320 So.2d 538 (La.1975). Further, the failure of the defendant to request such reopening of the evidence in order to avoid such prejudice may under some circumstances be presumed to indicate that prejudice of this type is not presented for review. State v. Johnson, 141 La. 775, 783, 75 So. 678 (1917); State v. Smith, 120 La. 530, 532, 45 So. 415 (1908).
[5] The second type of prejudice is sometimes incurable. Whether reversible error has resulted may depend upon the nature of the new evidence offered by the state for the first time in improper rebuttal. Improper rebuttal with regard to a peripheral issue may be regarded as harmless. State v. Major, 318 So.2d 19 (La.1975). To the contrary, however, if the evidence injects an entirely new issue which should have been an important part of the state’s case in chief, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), or if it unfairly places extreme weight on a part of the state’s evidence which should have been introduced in the case in chief, cf. State v. Davis, 246 La. 383, 164 So.2d 589 (1964).

To permit the state to introduce the testimony of the toxicologist to inject the results of the chemical blood analysis as rebuttal evidence is highly prejudicial to defendant and gives the state an unfair advantage.

Defendant’s denial under cross-examination that he was intoxicated is nothing more than an opinion. It did not constitute the projection by the defendant of factual evidence which was subject to rebuttal by the state. The initial plea of not guilty is in itself a denial of intoxication.

There is a difference in the instant situation and one in which a defendant takes the stand and denies that he has consumed any alcoholic beverage whatsoever. It may well be that under some circumstances evidence of the nature at issue here might be admissible to rebut such a denial. However, this defendant admitted having consumed a small quantity of beer and whether he was “legally intoxicated” is a matter of opinion.

The results of a chemical analysis of the defendant’s blood is of utmost importance in a prosecution for driving while intoxicated and to allow the state to wait until rebuttal to submit such evidence would unfairly place extreme weight on this part of the state’s evidence which should have been presented in the case in chief. State v. Turner, supra.

We are aware that the trial court ruled in this instance that there was sufficient evidence to convict defendant without regard to the results of the chemical blood analysis. This finding is “tainted” however by the improper admission of the result of the chemical blood analysis and the conviction must nevertheless be set aside.

The wrongful introduction of a chemical analysis which by law presumed the defendant to be under the influence of alcohol at the time of his arrest was manifestly prejudicial to the defendant’s case. Although other independent evidence of intoxication was presented by the State at the trial of the case, we are prohibited by the constitution from deciding the factual question of guilt or innocence and must restrict our scope of review to questions of law in criminal cases. La. Const. 1974, Art. 5, § 5. Consequently, we cannot speculate as to what decision the trier of fact would or should have made had the inadmissible evidence not been introduced. Instead, we are required to review the record for reversible errors of law and to declare them when found. State v. Burnette, 353 So.2d 989 (La.1977). See also State v. Graham, 360 So.2d 853 (La.1978), and State v. Morrison, 392 So.2d 1037 (La.1980).

For the reasons set out above, the defendant’s conviction is reversed and the case is remanded for retrial.

REVERSED AND REMANDED.


author: HALL, Judge.

text:
    TERRA BUILDERS, INC., Plaintiff-Appellee, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellant.
    No. 15903-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 16, 1984.

      Madison, Garrett, Brandon, Hamaker & Tugwell by Merwin M. Brandon, Jr., Bas-trop, for defendant-appellant.
    Herman L. Lawson and Steven R. Thomas, Mansfield, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

The defendant, International Paper Company, appeals from a $245,000 default judgment rendered in a suit for breach of contract, contending that the trial court abused its discretion in refusing to grant defendant a new trial and that the evidence offered by the plaintiff upon confirmation of the default was insufficient to support the judgment rendered. Under the circumstances of this case, we hold the trial court abused its discretion in failing to grant a new trial and remand the action for a new trial.

Plaintiff filed this breach of contract suit on October 15, 1982. In its petition, the plaintiff alleged that it contracted with the defendant to build housing for the defendant’s employees in the Mansfield area. The plaintiff further alleged that the defendant refused to honor its verbal commitment to allow the plaintiff to build additional housing at a higher price to offset plaintiff’s losses under the construction contract at issue, and refused to pay the plaintiff for certain “extras” included at defendant’s request in the houses built by the plaintiff for the defendant under the disputed contract. Plaintiff sought recovery of $118,-000 for its losses incurred in constructing and selling houses to defendant’s employees at prices below market value and $127,-000 in compensation for the “extras” included in the houses.

On November 9, 1982, counsel for the defendant filed a motion for an extension of time in which to answer which was granted and the defendant was given until December 7, 1982, to file an answer. By letter dated November 30,1982, counsel for the defendant informed counsel for the plaintiff that an answer would follow shortly and served upon the plaintiff a detailed set of interrogatories. The defendant’s counsel granted the plaintiff’s counsel several informal extensions of time in which to answer these interrogatories. Answers to the interrogatories were filed on January 14,1983. By letter dated January 28, 1983, counsel for the defendant acknowledged receipt of these answers and stated that an answer would be filed within 10 days. No answer having been filed as of May 3, 1983, counsel for the plaintiff, without notice to opposing counsel, entered a preliminary default on that date which was confirmed on May 6, 1983.

On May 16, 1983, the defendant timely filed a motion for new trial alleging the neglect of defense counsel, the insufficiency of the evidence presented by the plaintiff, and the existence of valid defenses to plaintiff’s suit. After a hearing, the district court overruled the motion and the defendant appealed.

Initially, we note that counsel for the appellant makes no contention that the taking of the default judgment in this case violated any agreement or understanding between counsel for the respective parties, or that there was any ill practice in any respect on the part of plaintiff’s counsel. Instead, the issue presented for our consideration is whether the trial court committed an abuse of discretion in refusing to set aside the properly entered default judgment and to grant the appellant a new trial. Under the facts of this case, we find an abuse of discretion occurred.

Our determination is guided by the principles authoritatively enunciated in the recent case of Lamb v. Lamb, 430 So.2d 51 (La.1983), in which the Supreme Court held that the district court abused its discretion in refusing to grant a new trial to the defendant-wife against whom a separation judgment was rendered by default because of her attorney’s neglect in failing to file an answer. The court held:

“La.C.C.P. art. 1973 provides that the trial court may grant a new trial if there exists good grounds therefor. A proper application of this article necessitates an examination of the facts and circumstances of the individual case. When the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. Deliberto v. Deliberto, 400 So.2d 1096 (La.App. 1st Cir. 1981); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980); Shows v. Williamson, 256 So.2d 688 (La.App. 2nd Cir.1972); See Hardy v. Kidder, 292 So.2d 575 (La.1973); Succession of Robinson, 186 La. 389, 172 So. 429 (1936). We have recognized that the court has much discretion regarding this determination. However, this court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse. La.C.C.P. art. 1971 comment (d); Hardy v. Kidder, 292 So.2d 575 (La.1973); DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (La.1951).
“With respect to cases, such as the one at bar, wherein a timely motion for new trial is denied after the proper confirmation of a default judgment, this court has been particularly cautious in examining the circumstances underlying the judgment due to the general policy consideration, weighing in the defendant favor, that every litigant should be allowed his day in court. In Hardy v. Kidder, 292 So.2d 575 (La.1973), for example, we reversed the trial court’s denial of a new trial application which had been timely filed after a preliminary default was confirmed. We found that the defendant should not have been denied the opportunity to assert his absolute defense to the plaintiff’s suit where the failure to plead the defense was the result of his attorney’s neglect rather than the client’s fault.
“However, not every motion for new trial timely filed after a default judgment warrants the granting of a new trial, for not every case involves a miscarriage of justice. Certainly, the mere failure to file an answer, without more, is not sufficient grounds to grant a new trial. DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (La.1951); Raphiel v. Louisiana Ry. & Nav. Co., 155 La. 590, 99 So. 459 (1924).” Id. at 53.

In holding that a miscarriage of justice would result by depriving the defendant-wife of the opportunity to defend the case on the merits, the court emphasized the following factors:

(1) The client did not realize until after the confirmation of the default that her attorney had failed to file an answer;

(2) The defendant-wife hired an attorney to represent her and relied upon him to file an answer. Her attorney not only neglected to file an answer but also failed to notify his client of a letter from opposing counsel requesting an answer;

(3) The wife disputed her husband’s allegations and had filed a separate lawsuit against him for a separation; and

(4) In spite of his knowledge that the wife desired to contest her husband’s suit for separation and had very recently discharged her attornéy, the husband’s counsel proceeded to take the preliminary default without notice to Mrs. Lamb and confirmed the default the day after she had retained new counsel.

Similarly, there are several factors underlying the default judgment rendered in this case which weigh heavily in favor of permitting the defendant the opportunity to defend on the merits:

(1) It does not appear that the defendant had notice that an answer had not been filed or that plaintiff intended to take a default. The defendant did not realize until after confirmation of the default that its attorney had failed to file an answer.

(2) The failure of the defendant to file an answer is in no way attributable to its own neglect, as defendant relied on its retained counsel to represent it in this matter by filing the appropriate pleadings, including a timely answer. The taking and confirmation of this default judgment resulted from defense counsel’s neglect.

• (3) The plaintiff’s claims under a complicated contractual arrangement involve a substantial sum, are disputed by the defendant on several serious grounds, and serious questions are raised as to the admissibility and sufficiency of the evidence offered upon confirmation of the default.

The fourth factor of overly-aggressive action on the part of plaintiff’s counsel found in the Lamb case does not exist in this case. There is no contention that counsel for plaintiff should have, as a matter of professional courtesy or otherwise, given defendant’s counsel notice of his intention to take a default. Plaintiff’s counsel proceeded in accordance with his responsibility to act on his client’s instructions and in his client’s best interest. See Code of Professional Responsibility, Canon 5, EC 5-1, Canon 7, EC 7-7.

In light of the circumstances of this case, we conclude the trial court abused its discretion in denying the defendant’s new trial application. A miscarriage of justice will result if the defendant is not afforded the opportunity to defend this substantial and complex action on its merits. Defendant was victimized by the inattention and neglect of its attorney, and there was no neglect on the part of the defendant. To allow the $245,000 default judgment to stand would, as stated in Lamb, “permit technical pleading rules to triumph over actual justice.”

See also Bell v. Holdcraft, 196 So. 379 (La.App.2d Cir.1940), an earlier decision of this court,, in which a default judgment was set aside on appeal. The court held that the interest of justice would best be served by remanding the case in order that the defendant, who was a victim of his lawyer’s neglect, might have his day in court.

Therefore, we reverse the trial court’s denial of the defendant’s new trial motion, grant the motion for new trial, and remand the case to the district court for further proceedings. The costs of this appeal are assessed to the defendant.

Reversed and remanded.


author: MARVIN, Judge.

text:
    Brenda S. Glannen PRICE, Plaintiff-Appellant, v. Paul James PRICE, Defendant-Appellee.
    No. 15904-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Peb. 23, 1984.
    Writ Denied April 13, 1984.

      Wilson & Yeatch by Thomas A. Wilson, Jr., Shreveport, for plaintiff-appellant.
    Pringle & Herzog by R. Perry Pringle, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

The non-resident mother appeals a judgment which changed the custody of the child of the marriage from the mother to the father and terminated the father’s obligation to pay child support. We reverse. UCCJA, LRS 13:1700, et seq.

The litigants were divorced on January 17, 1980, and the mother was granted the permanent custody of the child. In April 1980 the mother was personally served and cited on the father’s rule for a change of custody. A hearing was not held on this rule.

The mother remarried in 1982. In April 1983, with her husband and the child, the mother moved from Louisiana to Georgia.

The father learned of the move, and filed this rule to change custody on April 21, 1983. On April 22, 1983, service of process of the rule was made on attorney Wilson, who had represented the mother in the original divorce and custody proceedings and who appeared for her in the 1980 rule for change of custody.

Wilson filed exceptions of lack of service of process, of personal jurisdiction, and of improper venue on May 6, 1983. These exceptions were overruled on May 10, 1983.

On May 12, 1983, Wilson filed a motion to withdraw as counsel and mailed a letter to this effect to the mother at her previous address and at the address in Georgia furnished in the petition by the father. A second rule was filed on May 19, 1983, and was personally served on the mother in Georgia on May 20, 1983, ordering her to appear and show cause why custody should not be changed on May 24, 1983. At the hearing on that date, neither the mother nor her attorney were present. Judgment was signed granting the change of custody to the father.

PERSONAL JURISDICTION?

The father contends that the Louisiana court has continuing jurisdiction over the mother and therefore under the authority of Imperial v. Hardy, 302 So.2d 5 (La.1974), service of process on her attorney was sufficient.

In Imperial the mother and children were domiciled in Louisiana and the father was domiciled in Indiana. The mother filed two rules seeking an increase in child support and asking that past due child support payments be made executory. The husband’s attorney was served with process and the husband excepted to the jurisdiction and service of process. The court found that once jurisdiction over the husband had attached in the original award of child support, it continued for a future change or modification of the award. Child custody was not at issue in Imperial.

In the later case of Odom v. Odom, 345 So.2d 1154 (La.1977), the court found that the notion of continuing jurisdiction did not apply in a change of custody action where the custodial parent and the children no longer lived in Louisiana. They found that the compelling reasons for exercising continuing jurisdiction were not present in that situation.

These cases were decided before the Uniform Child Custody Jurisdiction Act, R.S. 13:1700, et seq., was adopted by Act 513 of 1978. One of the stated purposes of this act is to “promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.” R.S. 13:1702 sets out the circumstances where a court has jurisdiction of custody disputes. The first of these is where “this state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.” Jurisdiction attaches in those circumstances even though the child is not in Louisiana. R.S. 13:1702(C).

The child lived in Louisiana until a few days before this action was filed. Louisiana has jurisdiction to decide custody under the provisions of the UCCJA. Louisiana has the required close connection with the child and his family. Evidence of the best interests of this child would be more readily available in Louisiana than in Georgia.

SERVICE ON ATTORNEY?

Was the service on attorney Wilson sufficient notice under UCCJA? LRS 13:1703 requires that reasonable notice and an opportunity to be heard “shall” be given to the parties before a decree is rendered under the UCCJA. Buchanan v. Malone, 415 So.2d 259 (La.App. 2d Cir.1982). R.S. 13:1704 provides that the “notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice.” This notice may be given by personal delivery of service of process outside the state, by registered or certified mail, or if service cannot be made by these two methods, then by service on an attorney who is appointed by the court to represent the nonresident. This notice must be given at least ten days before any hearing is held. LRS 13:1704(B). Here the mother received actual notice in accordance with the UCCJA only four days before the hearing was held. Although her attorney mailed a letter advising her to immediately obtain new counsel, there is no evidence in the record that she ever received the. letter or that the address to which it was mailed was the correct address of the nonresident mother. Under these circumstances jurisdiction did not attach because the notice was not given until four days before the hearing.

Because there was no actual' notice to either the mother more than ten days prior to the hearing or to an attorney appointed by the court for the mother, we reverse the judgment and sustain the exception of improper service of process at appellee’s cost.


author: SEXTON, Judge.

text:
    Jessie Mae Busch BONNER, Plaintiff-Appellant, v. BANK OF COUSHATTA, et al., Defendant-Appellee. BANK OF COUSHATTA, Plaintiff-Appellee, v. Jessie Mae Busch BONNER, et al., Defendant-Appellant.
    Nos. 15912-CA, 15913-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 13, 1984.

      Eugene P. Cicardo, Alexandria, for plaintiff-appellant, Jessie Mae Busch Bonner.
    Bethard & Davis by James G. Bethard, Coushatta, for defendant-appellee, Bank of Coushatta.
    Rogers & Harlow by Graham W. Rogers and David L. White, Bossier City, for defendant-appellee, Nat. Alliance Ins. Co.
    Stafford, Stewart & Potter by Russell L. Potter, Alexandria, for third party defendant/plaintiff-appellee, Old Republic Life Ins. Co.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Jessie Mae Busch Bonner, individually and as administratrix of the succession of Robert Bonner, herein appeals adverse judgments rendered in these consolidated cases. We reverse.

Initially, on May 18, 1981, Mrs. Bonner sued the Bank of Coushatta, National Alliance Life Insurance Company, and Old Republic Life Insurance Company to collect $36,306.81 on a credit life insurance policy on the life of her deceased husband which allegedly insured his indebtedness on a promissory note.

On January 9, 1982, the Bank of Cous-hatta sued Mrs. Bonner seeking executory process on the premises which were mortgaged as security for the loan. This action was subsequently converted by the Bank to an ordinary proceeding and was consolidated for trial with the suit Mrs. Bonner had previously filed. The trial court rejected the demands of Mrs. Bonner on the alleged insurance claim. The court also granted judgment in favor of the Bank in its suit in the amount of $19,962.44, together with 15.5% interest from September 12, 1980, continuing for a period of one year from judicial demand and thereafter 8% interest per annum until paid, together with a delinquency charge of $60.00.

The Bank of Coushatta placed credit life insurance with both of the insurance companies that were sued herein. Old Republic settled prior to trial with Mrs. Bonner for $17,500, and has requested in brief that should we determine to reverse the judgment herein, that credit be given for this sum. Thus, Old Republic was released from the suit and neither of the two remaining defendants, the Bank or Alliance Life, have appealed or answered the appeal, though the Bank, in brief, requested credit for the sum Old Republic paid, should we reverse.

The loan which is the subject of this controversy was confected on January 22, 1980 when Mr. and Mrs. Bonner executed a promissory note in favor of the Bank of Coushatta in the amount of $39,970.80. This note represented a consolidation of outstanding loans which the Bonners owed the Bank in the amount of $16,262.67, a ' credit life insurance premium of $3,997.08, and a finance charge of some $19,000.

On this date Mrs. Bonner came to the Bank alone as Mr. Bonner was home ill. She dealt with a loan officer, Mr. Cloud, and completed the note according to his instructions. In so doing, she signed the note on the second of several lines provided for the signature of debtors. This line was labeled line "(2)” and had the phrase “comaker” under it. Also, in a demarcated box located on the face of the note, Mrs. Bonner signed on the “co-maker” line to indicate that she desired credit life insurance. The note clearly showed on its face that a premium for credit life insurance was financed in the note.

Later that same day, Mr. Cloud took the loan papers, including the note, to the Bonner residence where Mr. Bonner was at home alone to have him complete the papers. Mr. Bonner, an illiterate, signed the note with his “X” on line “(1)” as “maker.” He also placed his “X” above Mrs. Bonner’s name in the credit life box on the line labeled “maker” to indicate that he wanted credit life insurance. Obviously, since he was illiterate, he signed as directed by Mr. Cloud.

The note contained a specific stipulation relating to credit life insurance. This stipulation provided that “(u)nless otherwise indicated, credit life insurance ... if provided, insures only the maker signing on line (1).” (Emphasis added) The note contained no other provisions indicating that the maker was not the insured. As previously indicated, it was Mr. Bonner who signed on line 1, which was designated for the maker.

At the trial, Mr. Cloud, over strenuous objection from Mrs. Bonner’s counsel, testified that he told Mr. Bonner at his residence that he would not be insured. He stated he made this decision because of Mr. Bonner’s health and lack of employment, and thus sought and obtained insurance on Mrs. Bonner only. Before us, counsel for Mrs. Bonner continues to object that this evidence is an improper attempt to vary the clear and unambiguous, language of the loan contract between these parties by pa-rol evidence, contending that the contract on its face clearly shows that Mr. Bonner is the party being insured, and the Bank was thus obligated to attempt to obtain .that insurance, rather than to make the unilateral determination that such insurance would not be accepted.

Mr. Cloud’s version of the events was accepted by the trial court. In this respect, it is interesting to observe that Mr. Bonner subsequently obtained a $400.00 loan from another officer of the Bank and credit life was issued on that note. It is also interesting to observe that the Bank, in response to an interrogatory inquiring as to whether the credit life language on the note in question was read to Mr. Bonner, responded that to the best of Mr. Cloud’s recollection the language was not explained or read to Mr. Bonner “as he was not being insured.”

Parenthetically, we note that the Bank argues that one of the reasons Mr. Bonner was not insured was that to insure both, Mr. and Mrs. Bonner would have required a premium of approximately $10,600.00, which would have increased the payments on the note from $333.00 a month to $441.00 a month. Mr. Cloud testified that Mrs. Bonner had made it clear that $350.00 was the highest monthly payment which they could afford.

Of course it is obvious that if, as the note states, only the maker, Mr. Bonner, had been insured, the premium would not have been $10,600.00. Assuming for the sake of argument that the $4,000.00 premium included on the note was the proper premium for Mrs. Bonner, then a premium for Mr. Bonner alone would assumedly be about $6,600.00, or approximately only $2,600.00 above the amount charged. This sum over ten years obviously would not have increased the size of the payments extensively-

The fact of issuance of credit life insurance to Mr. Bonner on the second loan, the response to interrogatories, and the circumstances of the premium we discussed cause us serious concern about whether the trial court was correct in accepting Mr. Cloud’s version of the events. However, we do not consider whether the trial court was clearly wrong in this regard for the following reasons.

In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove:

(1) an undertaking or agreement by the insurance agent to procure insurance;
(2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and
(3) the actions of the agent warranted an assumption by the client that he was properly insured.

Redmond v. National Union Fire Ins. Co. of Pittsburgh, 403 So.2d 810 (La.App. 2d Cir.1981); Porter v. Utica Mut. Ins. Co., 357 So.2d 1234 (La.App. 2d Cir.1978). See also Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973).

The loan contract clearly contained an agreement- indicating that Mr. Bonner would be insured. It is uncontroverted that Mr. Cloud did not attempt to place the insurance. Premiums were paid and the only contract which the Bonners had indicated that it was indeed Mr. Bonner who was being insured. Thus, all three requirements of the three-pronged plaintiff’s burden in this respect are satisfied—unless the testimony of Mr. Cloud is allowed to vary the terms of the instrument.

It is our view that the terms of the loan contract with respect to credit life insurance are clear and unambiguous and therefore cannot be explained or contradicted by parol evidence to the contrary. LSA-C.C. Art. 2276; Breaux v. May, 392 So.2d 1089 (La.App. 34d Cir.1980), writ den., 398 So.2d 531 (La.1981); Matthieu v. Nettles, 383 So.2d 1337 (La.App. 3d Cir.1980), writ den., 390 So.2d 202 (La.1980); Paletou v. Sobel, 185 So.2d 95 (La.App. 4th Cir.1966).

In other words, the contract clearly indicates that the Bank agreed to attempt to place credit life insurance with one of the two insurance companies with whom it did business on the life of Mr. Bonner. Mr. Cloud testified that the Bank did not do so because in his judgment Mr. Bonner was uninsurable and the insurance would not be accepted. This testimony is an attempt to vary the clear and unambiguous terms and conditions of this loan contract by parol evidence. By the terms of the contract, the Bank had an obligation to attempt to secure insurance on Mr. Bonner and it failed in this obligation.

The actions of the Bank in failing to seek insurance can only be imputed to the Bank and cannot be imputed specifically to either of the two insurance companies sued since there is no evidence that the Bank represented that it was acting as agent specifically for either company.

It is not disputed that the Bonners were current in their payments at the time of his death, and we have found that á policy of credit life insurance should have existed on his life at that time which would have cancelled the obligation upon his death. These circumstances' constitute a valid defense to the Bank’s suit to foreclose, and thus the proper resolution herein is a judgment ordering the cancellation of the obligation. Citizens Finance Company of Amite v. Buchanan, 261 La. 1022, 261 So.2d 652 (1972).

Therefore, there will be judgment in these consolidated cases cancelling the obligation herein and ordering the note sued on marked paid and surrendered to the plaintiff upon payment by Mrs. Bonner tó the Bank of the $17,500 she has previously received in this cause.

It is therefore ORDERED, ADJUDGED and DECREED that there be judgment in these consolidated cases in favor of-. Jessie Mae Busch Bonner, individually and as ad-ministratrix of the Succession of Robert Bonner, against the Bank of Coushatta cancelling the obligation represented by the note of January 22, 1980, upon payment by Mrs. Bonner of $17,500 to the Bank of Coushatta, upon which occurrence, it is further ordered that the Bank mark said note paid and surrender same to Mrs. Bonner. All costs herein are assessed against the Bank of Coushatta.

REVERSED and RENDERED.

HALL, J., concurs.


author: JASPER E. JONES, Judge.

text:
    Pam Reeves HEYL, Plaintiff-Appellant, v. Cleveland George HEYL, Jr., as Administrator of the Succession of Cleveland George Heyl, III, a/k/a Cleve G. Heyl, III, Defendant-Appellee.
    No. 15914-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 16, 1984.

      Evans, Feist, Auer & Keene by J. Rans-dell Keene and Frances 0. Allen, Shreveport, for plaintiff-appellant.
    Bethard & Davis by James G. Bethard, Coushatta, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   JASPER E. JONES, Judge.

Plaintiff brought this action against the administrator of her deceased husband’s estate seeking to have a matrimonial agreement establishing a separation of property regime between herself and decedent declared null and void. After a trial on the merits, the trial court found that plaintiff failed to carry her burden of proving grounds for the nullity of the agreement and rejected her demand. Plaintiff appeals. We affirm.

The plaintiff and decedent were married on April 10, 1976 and lived under the community property regime provided by law for over 3¥2 years. By a matrimonial agreement dated December 28, 1979 they changed to a separate property regime. The agreement was entered into without judicial approval. It was recorded in the conveyance records of Red River Parish January 28, 1980. Decedent died November 17,1981. At the time of death plaintiff and decedent \yere physically separated. Plaintiff had instituted proceedings for a legal separation but a judgment of separation had not been granted.

The matrimonial agreement was signed by plaintiff, decedent, a notary and two witnesses. The facts surrounding the signing of the agreement are contested.

Plaintiff claims she was tricked into signing the agreement. She testified that she signed while she was employed at decedent’s place of business, Cleve Heyl Chevrolet-Buick, in Coushatta. She stated that one day as she was working decedent brought to her desk a document which he claimed was a land deed and requested her signature. He said he was in a hurry because his attorney, who was in decedent’s office, was waiting for the document. Plaintiff signed without looking at or reading the document. Plaintiff testified that later decedent told her he tricked her into signing a matrimonial agreement but he followed the advice of his attorney and tore it up. Plaintiff claims she believed him and thought no more of the matter until they separated. She specifically denies ever signing any document in the presence of the notary and witnesses whose signatures appear on the matrimonial agreement.

The notary on the matrimonial agreement is decedent’s mother. She remembers both parties and both witnesses being before her at the time the agreement was signed and remembers each of them signing it at which time she signed as notary. She did not draft the document and she neither read it aloud to plaintiff nor explained its significance to her.

One witness, David Hanna, recalls signing the document. He does not remember who was present or the circumstances under which he signed. He does not deny that all other signatories were present when he signed or that he saw the parties sign the document.

The other witness, Antonio Quiros, recalls signing the agreement in the presence of plaintiff, decedent and David Hanna. He does not remember whether the notary was present but does not deny she could have been. Quiros remembers seeing plaintiff sign.

Plaintiff assigns as error the trial court’s finding she did not carry her burden of proving grounds for the nullity of the agreement. She claims the testimony establishes 4 grounds for which the agreement should be declared null:

(1) Lack of consent;
(2) Improper form;
(3) Lesion; and
(4) Lack of consideration.

Lack of Consent

Consent legally given is a necessary element for a valid contract. La.C.C. 1779. Consent is not lawful when it is produced by error and fraud. La.C.C. 1819. Plaintiff contends her consent was unlawful because she was in error as to what she was signing and that error was induced by fraud on the part of decedent.

The two elements essential to establishing legal fraud are an intent to defraud or gain an unfair advantage and a resulting loss or damage. La.C.C. 1847; Walton v. Bufkin, 135 So.2d 309 (La.App.2d Cir.1961); In re Wingate, 184 So.2d 237 (La.App. 1st Cir.1966). A party-alleging fraud has the burden of establishing it by more than a mere preponderance of the evidence. The conclusive proof required must be by clear and convincing legal evidence. La.C.C. 1848; Hall v. Arkansas-Lousiana Gas Co., 359 So.2d 255 (La.App.2d Cir.1978); Jackson v. Fontenot Building, Inc., 314 So.2d 516 (La.App. 1st Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App.3d Cir.1965); Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La.App. 4th Cir.1962).

A party is presumed to know the contents of an instrument he signs. Mitchell v. Bertolla, 397 So.2d 56 (La.App.2d Cir.1981); Fontenot v. Coreil, 2 So.2d 97 (La.App. Orleans 1941). Signatures to contracts are not mere ornaments. If a party can read, it behooves him to examine an instrument before signing it. Snell v. Union Sawmill Co., 159 La. 604, 105 So. 728 (1925); State v. Harris, 138 So.2d 197 (La. App. 4th Cir.1962); St. Landry Loan Company v. Avie, 147 So.2d 725 (La.App.3d Cir.1962).

The evidence, as a whole, does not clearly and convincingly support plaintiffs allegation of fraud. The only evidence which supports the allegation is plaintiffs uncorroborated testimony that her deceased husband gave her the agreement to sign under the pretext it was a land deal. Plaintiffs story is controverted by the testimony of her own witness, Antonio Quiros. This witness is fully corroborated by the testimony of the notary. The testimony of Quiros and the notary contradicts plaintiffs story about the circumstances under which she signed the matrimonial agreement. The testimony of these witnesses is substantial evidence to support the trial judge’s conclusion that plaintiff failed to establish that she was tricked into signing the agreement. The trial judge saw and heard the witnesses’ testimony and was in the best position to determine credibility. He disbelieved the plaintiff’s testimony that she didn’t know that she was signing a matrimonial agreement. She is bound by what she signed.

Improper Form

Plaintiff contends the matrimonial agreement is invalid as to form because it was not made by authentic act or by an act under private signature duly acknowledged by the parties as required by La.C.C. 2331. She first argues that none of the signatories to the agreement could consistently affirm that they signed in the presence of each other.

The requirements for an authentic act are contained in La.C.C. 2234, which provides:

“The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument.”

All 2234 requires is that the notary and witnesses be present when each contracting party signs the act and that the notary and witnesses also sign the act. They need not necessarily sign at the same time as the contracting parties. Rittiner v. Sinclair, 374 So.2d 680, 685 (La.App. 4th Cir.1978).

On its face, the matrimonial agreement appears to be á valid authentic act. Implicit in the trial court’s holding that plaintiff failed to prove the nullity of the agreement is a finding that the requirements of C.C. 2234 were complied with. The record reasonably supports this finding. Reasonable inferences of fact should not be disturbed on appeal unless clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Plaintiff also argues the agreement is invalid as to form because the notary neither read nor explained it to her. She points to no authority supporting her contention. All of the formal requirements for an authentic act are contained in C.C. 2234. It only imposes signature requirements. The notary is not required to read or explain the act to the parties.

Lesion and Lack of Consideration

C.C. art. 2329 requires that the matrimonial agreement entered into after the marriage creating a separate property regime serve the best interest of the spouses. The plaintiffs contention that she received inadequate or no consideration in the matrimonial agreement constitutes a contention that it was invalid because it was not to her best interest. A review of the evidence adduced at trial reveals that it was directed almost exclusively to the circumstances surrounding the execution of the matrimonial agreement. The evidence does not establish what property was received by plaintiff pursuant to the matrimonial agreement nor the value of it. The only property shown at trial to have been received by the decedent was an unidentified number of shares of stock in Cleve Heyl Chevrolet-Buick, Inc., which was declared to be his separate property in the matrimonial agreement. The value of this stock was not established. No other circumstances surrounding the existing nor prospective financial condition of the spouses at the time of the execution of the agreement was established at trial. The plaintiff, who has the burden of proof, totally failed to establish as a grounds for invalidating the matrimonial agreement that it'was not to her best interest.

For the foregoing reasons the judgment of the trial court upholding the validity of the matrimonial agreement is AFFIRMED. All costs of this appeal are assessed to plaintiff.

      . The matrimonial agreement is dated after the passage of Act 709 by the legislature in 1979. Act 709 revised Louisiana’s community property law. The general provisions of the act became effective January 1, 1980. Acts 1979, No. 709, § 13. Under the law before Act 709 a matrimonial agreement altering the legal regime could only be entered into before marriage. The parties could not alter the legal regime after marriage. See former La.C.C. 2329. Under the present law the parties can enter such an agreement after marriage with judicial approval. La. C.C. 2329. Because of the extensive changes in the law, Act 709 provided persons already married could, between August 1, 1979 and January 1, 1980, alter the legal regime without judicial approval. Acts 1979, No. 709, §§ 10 and 13.

      . Because we find that plaintiff has failed to prove the agreement is not by authentic act, we find it unnecessary to consider whether it is valid as to form as an act under private signature.

      . The matrimonial agreement contained a provision that all property acquired by the respective spouses during the marriage and prior to the agreement was to belong to their respective separate estates.


text:
    CITY OF BOSSIER CITY, Plaintiff-Appellee, v. Eugene LEE, et al., Defendants-Appellants.
    No. 15920-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Joel M. Sermons, Shreveport, for defendant-appellant.
    Michael G. Latimer, Asst. City Atty., Bossier City, for plaintiff-appellee.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   PRICE, Judge.

Defendant Eugene Lee appeals the judgment of the district court overturning a ruling of the Bossier City Civil Service Board by which he was reinstated to the position of assistant fire chief.

There is no dispute as to the pertinent facts of the case. Eugene Lee had been an employee of the Bossier City Fire Department for over 20 years and was a regular and permanent member of the Civil Service system. Prior to May 20, 1982, Mr. Lee served as a district chief. On that date he received a promotion to the position of assistant fire chief and began the probationary working test period provided for by La.R.S. 33:2555. On June 29,1982, prior to completion of three months of the working test, defendant tendered his resignation frbm the department to be effective June 30, 1982. The resignation was rejected on the grounds that defendant would have to take his unused vacation time before resigning. Therefore, Lee began his vacation period on June 30, 1982.

On that same day, the plaintiff appointing authority terminated his working test period as assistant fire chief and placed him back in his previous position as district chief. On July 7th, defendant once again tendered his resignation which was then accepted.

Defendant appealed his removal from the position of assistant fire chief to the Bossier City Municipal Fire and Police Civil Service Board which requested that the city give reasons for the demotion. The city took the position that no reasons were required because defendant had not completed three months of his working test period. The board ultimately reinstated Lee to his former position as assistant fire chief on the grounds that the appointing authority had not acted in good faith and for cause in removing him therefrom.

The city appealed the board’s decision to the district court which overturned the board’s ruling. The trial judge found that since Lee submitted his resignation before completion of the required working test period and his confirmation in the new position, the appointing authority had the right to remove him from the test period on the ground that he was unwilling or unable to perform the duties of the position.

On this appeal, defendant contends that his resignation from the department prior to the end of the working test period was not good grounds for his demotion by the appointing authority and that the board’s action in reinstating him was proper under the circumstances. The plaintiff appointing authority maintains that it is not required to show grounds for the demotion of Lee during the first three months of the working test period, and alternatively that Lee’s voluntary resignation constituted such grounds.

La.R.S. 33:2555 provides, in pertinent part, as follows:

Every person appointed to a position in the classified service following the certification of his name from a promotional or a competitive employment list, except those appointed on a temporary basis, shall be tested by a working test while occupying the position before he may be confirmed as a regular and permanent employee in the position.
The period of the working test shall commence immediately upon appointment and shall continue for a period of not less than six months nor more than one year. Any employee who has served at least three but less than six months of his working test for any given position may be removed therefrom only with the prior approval of the board, and only upon the grounds that (1) he is unable or unwilling to perform satisfactorily the duties of the position to which he has been appointed or (2) his habits and dependability do not merit his continuance therein. Any such employee may appear before the board and present his case before he is removed.

This statute clearly contemplates a working test period of at least six months and up to one year before confirmation of the employee to the appointed position. Lee failed to meet the working test requirements by tendering his resignation before the end of the test period. By voluntarily withdrawing from employment during the test period, he could not be confirmed in the new position of assistant fire chief because he had not served six months in that capacity.

We agree with the trial judge that when Lee voluntarily tendered his resignation, indicating that he would not complete the test period, the appointing authority had the right to remove him from the new position on the ground that he had indicated his inability or unwillingness to perform the duties of that position, as provided by the above-quoted statute. Inasmuch as a valid reason for Lee’s removal from the trial position did exist, it is unnecessary for us to address the alternative arguments advanced by the parties.

Having found that the decision of the board was in violation of the clear statutory provision regulating promotions in the classified service, we hold that the trial court’s reversal of the board’s decision was proper and correct. See La.R.S. 49:964(G).

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

AFFIRMED.


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

text:
    James C. STEELE, III et ux., Plaintiffs-Appellees, v. Eloise S. DENNING et al., Defendants-Appellants.
    No. 15929-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Granted April 13, 1984.

      R. Wayne Smith, Ruston, for defendants-appellants, Eloise S. Denning et al.
    Watson, Murchison, Crews, Arthur & Corkern by Daniel T. Murchison, Natchi-toches, for defendant-appellant, Sherwood I. Burgdorf.
    Boles & Mounger by Harvey P. Perry, Monroe, for plaintiffs-appellees, James C. Steele, III and Gloria Dyke Steele.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiffs, husband and wife, alleging ownership of undivided interests [less mineral rights reserved by a prior landowner] in two tracts comprising 160 acres, sued for a partition by licitation of land and minerals. Made defendants were Burg-dorf, owner of the mineral servitude burdening plaintiffs’ undivided interests, and other property co-owners — whose undivided interests were not subject to mineral servitudes.

The property in question was subject to a mineral lease in favor of Getty Oil Company (“Getty”) and was under production, with royalties being received by the mineral lessors. Getty, also made a defendant, answered and requested recognition and maintenance in force of its mineral lease. All other defendants filed exceptions of no right of action and no cause of action, asserting that plaintiffs could not provoke a partition of the mineral rights because, holding no mineral rights themselves, they were not co-owners with the defendants who had those rights to search for minerals. Therefore, the position of defendants was that plaintiffs could have only the land surface partitioned.

After trial of the exceptions, in written reasons for ruling in favor of plaintiffs, the trial judge commented:

“The arguments of exceptors appear to be based upon the invalid conclusion that separate estates exist in land and minerals and upon the erroneous assumption that mineral interest ownership (as distinguished from mineral ownership) is of equal dignity to land ownership. As the law and jurisprudence clearly recognizes, mineral interest ownership is only a servitude imposed upon that land, not a separate estate.”

The trial court concluded that there was “a co-ownership between the plaintiffs and all other co-owners of the land." (emphasis added). Defendant Burgdorf was classified, not as a mineral owner, but as the holder of a mineral servitude upon the undivided interests of plaintiffs. The trial judge reasoned that under the implied authority of La.R.S. 31:178 it was appropriate to include that mineral interest in the partition, whether the latter was in kind or by licitation.

However, with reference to the mineral lease held by Getty, the trial court noted:

“If a mineral interest is attributable to the entire property [conveyed by all co-owners], as appears to be the case with that of Getty Oil Company [in contrast to Burgdorf] the property would be partitioned subject to the interest of Getty Oil Company.”

Subsequent to the overruling of defendants’ exceptions, the case was tried on the merits. Judgment was rendered and signed ordering a partition by licitation of the 160 acres, and further ordering separate appraisals of the value of the interest in the mineral rights of each party and the value of the interest in the land of each party.

All defendants except Getty appealed, raising as the primary issue for our consideration the contention that the trial judge erred in overruling defendants’ exceptions of no right of action and no cause of action.

According to the record, in 1978 Burg-dorf, co-owner of an undivided interest in this 160 acres located in Lincoln Parish, sold that interest to Ahrens, but expressly reserved his entire interest in the mineral rights. In 1980 Ahrens sold his interest in the subject property to the Steeles, subject to the prior mineral servitude in favor of Burgdorf.

This partition suit was filed by the Steeles on November 4, 1980.

Our civil code provides that anyone may demand partition of a thing held in common. La.C.C. Article 1289. What constitutes a holding in common is generally the critical issue to resolve in determining the right to partition.

In the landmark case of Smith v. Nelson, 121 La. 170, 46 So. 200 (1908), our supreme court refused to allow the naked owners of an undivided one-half interest in property to force a partition against one who held the usufruct over plaintiffs’ interest and perfect ownership of the remainder, commenting:

“The law which confers the right to the partition of a ‘thing held in common’ has no application to those who hold, respectively, the fragments of a dismembered title to the same immovable property, for the reason that in such case, the title being dismembered, each part is a distinct thing, held by a different owner, and there is no ‘thing held in common.’ It is clear therefore, that as between plaintiffs, as owner of an undivided interest in the naked title to the property in question, and defendant as usufructuary (of such interest), there is no basis for this action.”

Smith has been generally recognized as authority for the legal principle that a partition action is available only to parties who own property rights of the same nature as the persons against whom the partition is sought. Once the existence of requisite common elements has been established, the right to partition is absolute. Conversely, if common elements do not subsist, an action for partition will not lie. See Yiannopoulos, Louisiana Civil Law Treatise, Personal Servitudes, Vol. 3, Sect. 8 (1978); Prohibition of Partition by Lici-tation of Property Subject to Usufruct, 55 Tulane Law Review 113 (1980).

Recognition of this rule of law requiring the existence of “common elements” as a prerequisite for entitlement to provoke a partition of property is reflected in La.C.C. Article 541, which provides that a usufruct created in favor of several persons in indi-visión is subject to partition. Further, La. C.C. Article 542 expressly authorizes the partition of the naked ownership of property subject to a usufruct.

Where property is susceptible to partition in kind, a party with interests in both naked ownership and usufruct may reintegrate those elements and be declared full owner of a separate tract. La.C.C. Art. 543. However, the second sentence of that article specifically prohibits partition by li-citation where one person is both an owner and a usufructuary. The official comment to this article declares that the cited sentence is based on prior Louisiana jurisprudence and effects no change in the law.

In Devillier v. Devillier, 371 So.2d 1230 (La.App. 3rd Cir.1979), the party suing for a partition by licitation owned an undivided interest in perfect ownership. Other defendants held naked ownerships burdened by the usufruct of an additional defendant. The court ruled that plaintiff was entitled to a partition by licitation since her perfect ownership interest gave her common elements with all the others who had an interest in the property.

Louisiana C.C. Article 476 provides:

One may have various rights in things:
(1) Ownership;
(2) Personal and predial servitudes; and
(3) Such other real rights as the law allows.

Our jurisprudence has recognized that parties to a contract may create real rights apart from those expressly stipulated in the civil code, as long as public policy is not violated. Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641 (1915). A significant example of a new form of real right created by parties in the exercise of their contractual freedom is the right to search for minerals. Article 3, Louisiana Mineral Code (La.R.S. 31:3).

The nature of mineral rights is not an issue in this case. It is undisputed that in Louisiana a sale or reservation of minerals creates a real right in the nature of a servitude. Frost Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207 (1922); Allied Chemical Corporation v. Dye, 441 So.2d 776 (La.App. 2d Cir.1983); La.R.S. 31:18, 21.

It is clear that the mineral servitude doctrine precludes creation of a mineral estate independent of full title to the land. La.R.S. 31:6.

Having summarized these accepted tenets relative to the nature of mineral rights, we proceed to point out that recognition of this established law is not dispositive of the primary question posed by this case: what elements of ownership in the 160 acres sought to be partitioned do plaintiffs hold in common with the defendants who have appealed the district court judgment?

Although the cases and codal articles discussed above deal with usufructs rather than with mineral servitudes, their underlying rationale is pertinent to a resolution of the prime issue confronting us. Consequently, reasoning by analogy from that jurisprudence and the relevant codal articles, we hold that at the time of the trial of the exceptions of no right of action and no cause of action:

(1) Burgdorf held a mineral servitude [a real right] burdening plaintiffs’ undivided interests in the 160 acres. Consequently, plaintiffs had an imperfect or dismembered ownership — i.e., did not have all the elements of ownership which accompany perfect ownership.
(2) Plaintiffs did not hold a common element with defendant Burgdorf, since he had the right to search for minerals but they did not. It follows logically that plaintiffs could not provoke a partition of Burgdorf s mineral servitude. The trial judge erred in so holding when he ruled on the exceptions.
(3) The common element held by plaintiffs with the other defendants [co-landowners] was ownership of an interest in the property, exclusive of the right to search for minerals. Therefore, with respect to these defendants, plaintiffs could only provoke a partition of that common element. The trial court also erred in its ruling on this point.

Patrick v. Johnstone, 361 So.2d 894 (La.App. 2d Cir.1978), relied upon by the trial judge and plaintiffs, is factually distinguishable. There, the plaintiff Patrick and the defendant Joe Johnstone owned property in indivisión, with the undivided interest of the latter burdened by a mineral servitude held by W.W. Johnstone. We affirmed a judgment ordering partition by licitation of the land as well as the minerals. This is entirely consistent with our reasoning here. Patrick, having perfect ownership of an undivided interest, had a common element with his co-landowner and also with the holder of the mineral servitude. Rather than contradicting, Patrick supports our ruling in this case.

For these reasons, we reverse the district court judgment as to the defendant Burg-dorf; sustain his exception of no cause of action; and render judgment dismissing the suit as to that defendant, at plaintiffs’ cost.

With respect to the other defendants-appellants, the district court judgment is amended to provide that the property to be partitioned by licitation shall be that described in the judgment, LESS AND EXCEPT the minerals lying in, under and upon the tracts; with appraisal ordered only with respect to the property to be partitioned by licitation. As thus amended, as to these defendants-appellants, the judgment is affirmed.

Costs of appeal are assessed to plaintiffs.

      . § 178
      If land burdened by a mineral right or rights created by fewer than all of the co-owners of the land is judicially partitioned, a partition in kind may not be ordered unless it can be accomplished in such fashion that the allocation of tracts to the co-owners assures that both surface and mineral values of each tract are in the same proportion to the total value of the surface and the mineral rights respectively as each co-owner’s interest bears to the whole of the surface and the mineral rights respectively.


text:
    Bessie WISE, et al., Plaintiffs-Appellants, v. John W. KEY, Defendant-Appellee.
    No. 15930-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Napper, Waltman, Madden & Rogers, by Lee B. Waltman, Ruston, for plaintiffs-appellants.
    Truett West, Farmerville, for defendant-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiffs appeal an adverse ruling by the trial court holding that a driveway/road on their property had been dedicated to public use by virtue of its authorized maintenance by a public entity for a period of three years. We affirm.

Plaintiffs herein are Bessie Wise, Nora Wise Hollis, and Harris Wise, the surviving spouse and sole heirs, respectively, of Se-bron E. Wise. These plaintiffs filed for a mandatory injunction against the defendant to prohibit him from operating a motor vehicle on their property. Plaintiffs also sought certain damages as a result of defendant’s action.

The driveway/road in question is on a tract of land in Bernice, Union Parish, Louisiana. It was acquired by Sebron Wise in 1949. This driveway/road is on or near the south boundary of plaintiff’s property where it adjoins that of Henry Warden. The Warden property extends about half the depth of the Wise property where it is then bordered on the east by the Key property. The drive/road is about ten feet wide and the blacktopped portion extends almost to the Key property. At the end of the blacktopped portion it continues as a dirt road or track on toward the westerly boundary of the Wise property. There is a gate at the northeast corner of defendant’s property where it adjoins the Warden property. This gate furnishes defendant access to the drive/road.

At the trial there was uncontroverted testimony from one long-time area resident, a Mr. McCall, who testified that his father and uncle “gave the road” many years ago, each donating one-half of the road along the “forty” line dividing their properties. There was other testimony that thereafter this road was used to obtain access to property located behind the Wise property. However, shortly after obtaining the property in 1949, the Wise family disced it up and planted it in clover, including the drive/road. It so remained until 1960 when Seborn Wise put a house on the property and began living there with his wife. He used as a driveway the same location that the road has previously enjoyed. Thereafter a rent house was located behind the Wise home and the drive/road was blacktopped and graded by the Louisiana Department of Highways. After being blacktopped it was “worked” regularly by crews from the Union Parish Police Jury. Because of the passage of time it is unclear exactly when the road was blacktopped, but it was certainly in the early 1960s and before 1964. Likewise, the specific dates of maintenance are difficult to determine but it is clear that once the road was blacktopped the police jury provided regular and continuous maintenance. In addition, the Bernice Lions Club, on its own initiative, placed signs on all of the unsigned streets in Bernice. In so doing, this drive/road was demoninated as “Wise Street.”

The trial court found that tacit dedication of the road had occurred in accordance with LSA-R.S. 48:491. The trial court went on to find that the public posture of the road was not lost by virtue of non-use in excess of ten years as provided by the then LSA-C.C. Art. 789. Therefore, appellants specify as error the trial court’s determination on these two crucial factual issues.

Tacit dedication as envisioned by LSA-R.S. 48:491 requires more than casual and random maintenance. Jackson v. Town of Logansport, 322 So.2d 281 (La.App.2d Cir.1975). But intent of the landowner to dedicate the property as a street is unnecessary, if there is the requisite maintenance without adequate protest. Tschirn v. Morse, 394 So.2d 286 (La.App.1st Cir.1980); Town of Sorrento v. Templet, 255 So.2d 246 (La.App.1st Cir. 1971); Winn Parish Police Jury v. Austin, 216 So.2d 166 (La.App.2d Cir.1968). It does not matter that the police jury does not itself recognize this as a public road. Latour v. Dupuis, 164 So.2d 620 (La.App.3rd Cir.1964); nor is a public purpose necessary, Strickland v. Stafford, 322 So.2d 893 (La.App.1st Cir.1975).

The trial court in extensive reasons for judgment cited detailed evidence of the three year maintenance necessary to effect tacit dedication in the following terms:

“In the Court’s opinion, the preponderance of the evidence establishes that the road was worked and maintained by equipment and manpower of the Union Parish Police Jury for a period in excess of three years. The testimony of Cecil McCall, D.L. McCuller, in addition to the defendant, and of Donald Grafton, Lonnie Gray, and Eugene Pearson establishes this, as well as the fact that the operations were more than “brushing up” or token maintenance. The evidence also establishes that no protest against this maintenance or the public use of the road occurreduntil January, 1981. In fact, it appears that the public maintenance, particularly the blacktopping, of the road occurred at the instance of Mr. Seborn E. Wise. It further appears that the road was used by the public on numerous occasions during this period. On the other hand, the knowledge of Mr. Harris Wise concerning the use and maintenance of the road is limited by his period of absence from the property. Therefore, the Court concludes that there was a tacit dedication of the road in question from Highway 167 westward to the eastern boundary of the Cook property, where the testimony established that the maintenance operations ceased.”

The trial court therefore concluded that sufficient public maintenance occurred to effect tacit dedication of the contested roadway. With respect to appellant’s contention that the road subsequently lost its public status, it is the non-use of the road rather than the lack of maintenance which establishes abandonment, which non-use must be continuously uninterrupted for ten years. LSA-C.C. Art. 753; Robinson v. Beauregard Parish Police Jury, 351 So.2d 113 (La.1977). Moreover, it is of no moment that the defendant was the only party using the road. Trahan v. Fontenot, 380 So.2d 1240 (La.App.3d Cir.1980). The trial court found sufficient evidence of continuous use in these terms:

“The evidence clearly shows, and particularly that of D.L. McCuller, whose testimony was quite impressive, he being a disinterested witness, that the road was used as late as 1976 to gain access to the interior of the properties.”

It is our view that the determinations of the trial court on the two factual issues which form the basis of this appeal are supported by the record and are not clearly wrong. As such, they will not be disturbed by us on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons aforesaid, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . At the time of the alleged maintenance, this statute provided as follows:
      "All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. Also all roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities."

      . This article is now Article 753, which did not change the law. It reads, “A predial servitude is extinguished by nonuse for ten years.”


text:
    STATE of Louisiana In the Interest of Christy QUILTER & Angela Quilter.
    No. 15935-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Richard Ducote, New Orleans, for plaintiff-appellant Dept, of Health & Human Resources.
    David Haynes,. West Monroe, for Mrs. Ethel Aswell.
    Lee Ineichen, Monroe, for Christy & Angela Quilter.

      Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The State petitioned to have the parental rights of Mrs. Ethel Aswell, mother of Christy and Angela Quilter, judicially terminated under La.R.S. 13:1600-1604. Mrs. Aswell opposes the termination. After a hearing at which the State and Mrs. Aswell presented evidence, the trial court found the State failed to prove one of the necessary elements in its burden of proof and refused to order the termination. The State appeals.' We affirm.

The parties were before this court on a previous occasion when Mrs. Aswell appealed a judgment dated June 11, 1982 which maintained custody of Christy and Angela in the Department of Health and Human Resources and terminated Mrs. As-well’s rights to visit with the children while they were in foster care. As part of that judgment, the State was ordered to file termination of parental rights proceedings. We amended the judgment to eliminate the order to file termination of parental rights proceedings and as amended affirmed the judgment. State in Interest of Quilter, 424 So.2d 394 (La.App. 2d Cir.1982).

Christy, age 8, and Angela, age 5, are still in foster care.

The background facts relevant to the instant proceeding are contained in our previous opinion. They will not be repeated here. Three noteworthy circumstances have occurred to Mrs. Aswell subsequent to the judgment of June 11, 1982 and which are not reviewed in our previous opinion: (1)In August, 1982 Mrs. Aswell attempted suicide; (2) Mr. and Mrs. Aswell, commencing in September of 1982 and extending through May of 1983, participated in extensive marriage counseling sessions with Rev. Don Wineinger; and (3) Mrs. Aswell underwent a religious conversion experience in April, 1983 shortly before this case came to trial in June, 1983.

Because the termination of parental rights is such a severe and permanent action, the law requires the State to meet an onerous burden of proof before termination will be ordered. R.S. 13:1601 defines what the State must allege and prove in several different situations. The instant proceeding was filed under 13:1601 D. In relevant parts 13:1601 provides:

§ 1601. Petitioning for the termination of parental rights
The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court’s jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsection A, B, C, D, E, or F of this section. The district attorney may appoint any attorney representing the Department of Health and Human Resources as a special assistant district attorney for the purpose of prosecuting any such case, regardless of the domicile of said special assistant.
D. (1) The child has been in the custody of a child welfare department or other person, pursuant to a judicial order, for a period of at least one year.
(2) The child was removed from the custody of the parents by judicial order due to the parent’s abuse or neglect of the child.
(3) The parent is unfit to retain parental control and there is no reasonable expectation of reformation on the part of the parent or parents.
(4) The child is an abused or neglected child, the Department of Health and Human Resources has made every reasonable effort under the circumstances to reunite the child with his parents, and the department recommends that it would not be in the best interest of the child to be reunited with his parents, (emphasis supplied)

In termination proceedings brought under 13:1601 D, the State must prove each of the four required conditions of termination by clear and convincing evidence. R.S. 13:1603 A.

After considering all the evidence, the trial court found that the State had met its burden of proving elements (1), (2), and (4) of 13:1601D but it failed to prove the part of condition (3) which requires there be no reasonable expectation of reformation on the part of Mrs. Aswell.

The State assigns as error the trial judge’s determination that the State failed to prove by clear and convincing evidence there is no reasonable expectation of reformation on the part of Mrs. Aswell.

The trial court based its finding on expectation of reformation upon the testimony of three witnesses: Dr. Bobby Stephenson — a clinical psychologist who evaluated Mrs. Aswell on two occasions; Reverend Don Wineinger — a minister the Aswells were ordered to report to for marriage counseling; and Doris Henry — the Department of Health and Human Resources employee most recently assigned to the case. In his reasons for judgment the trial judge made the following evaluation of the testimony of these three witnesses:

“In analyzing the individual areas of evidence presented by the State, the psychiatrist (sic) Dr. Bobby Stephenson testified that he had last examined Mrs. [As-well] in the early part of 1982, he had examined the children in the early part of 1982, and that he had concluded that Mrs. [Aswell] was a little bit better than she had been at his previous examination. He of course was not willing to state and did not state that she was in any way sufficient. In fact he went on to say that he didn’t think that the change was sufficient to support much hope for reformation by her. He indicated that the incident in August [the suicide attempt] influenced his opinion in the negative. Testifying for the State or I should say for the defense was Reverend Don Wineinger who had made personal counseling and observations of both Mrs. [Aswell] and her husband and had noted a dramatic change in the early part of 1983. A dramatic positive change I would say. And the Court has also considered the totality of the testimony of Mrs. Henry in arriving at a decision. I think, suffice that to say, that Mrs. Henry could not point to any specific fact during her period of supervising Mrs. [Aswell’s] case that would justify a conclusion that she had no hope of rehabilitating herself.”

The record supports the trial court’s evaluation of the witnesses’ testimony.

Dr. Stephenson last evaluated Mrs. As-well in April, 1982, some 14 months before the instant case was tried. The State did not seek to have an updated psychological evaluation made. Mrs. Aswell personally contacted Dr. Stephenson about doing another evaluation a few months before this case was tried. He refused to conduct the evaluation and told Mrs. Aswell it would be in her best interest to seek a fresh point of view. Dr. Stephenson’s primary reason for giving Mrs. Aswell little hope of reformation is that in his opinion she suffers from an anti-social personality. It has been his experience that persons with that problem seldom change. The improvement he noted at the second evaluation was Mrs. Aswell showed more self-control.

Doris Henry worked with the Aswells from February through August, 1982. When her testimony is compared with that of Wayne Conrad, a DHHR employee who worked with Mrs. Aswell from September through December, 1978, it appears that Mrs. Aswell has made some improvement. When Conrad worked with Mrs. Aswell she was unmarried and frequented bars. She was often gone all night and occasionally left the children with persons with whom she was not well acquainted. On other occasions Mrs. Aswell allowed her latest paramour to stay in the same house with her and the children. There were allegations she would have sex in front of the children. Conrad testified that every time he visited Mrs. Aswell her home was dirty and the children were dirty and unkempt.

At the time Mrs. Henry was assigned to the case, Mrs. Aswell had been married to her present husband about two years and was at least attempting to make a go of the marriage. Mr. Aswell had been employed at the same job for a number of years and earned $190 a week. The Aswells made an effort to attend most of the activities ordered by the court although they were unhappy about having to attend many of them. Mrs. Henry always found the house clean and Mrs. Aswell responsive to what was asked of her. She stated that Mr. and Mrs. Aswell made plans for the permitted visits with the children and that the little girls anticipated and enjoyed most of their visits.

The State argues that Reverent Wineinger is a well-intentioned, overly optimistic victim of Mrs. Aswell’s manipulation. We note that initially the Aswell’s attended marriage counseling, not by their own choosing but pursuant to a court order. DHHR chose Reverend Wineinger for them. After the court ordered counseling was discontinued the Aswells in September 1982 of their own choice sought and obtained additional counseling from Rev. Wineinger. Rev. Wineinger testified that Mr. and Mrs. Aswell made great improvement in their marriage relationship with each other commencing in January, 1983. He stated the quality of their relationship had improved so much by May, 1983 that he terminated further counseling as he considered it unnecessary. Rev. Wineinger’s optimistic assessment of Mrs. Aswell is based in part on a religious conversion experience she related to him. The State points out the experience occurred approximately one month before trial and cites it as another example of Mrs. Aswell’s manipulation. We are unprepared to say her religious experience was not sincere.

The State argues that the factors to be considered for determining when there is no reasonable expectation of reformation on the part of the parent include (1) the history of the parent’s condition and treatment of the children; (2) the cause of the parent’s condition and treatment of the children; and (3) the present functioning of the parent in light of intervention efforts. The State points out that in essence these are the factors relied upon in In Interest of Boudreaux, 427 So.2d 891 (La.App. 1st Cir.1983), writs denied, 432 So.2d 267 (La.1983) wherein the court affirmed a judgment terminating parental rights.

The State then argues that the life led by Mrs. Aswell for many years prior to the June, 1982 hearing, most of which was reviewed in our opinion affirming the June, 1982 judgment, together with the August, 1982 suicide attempt, constitute proof by clear and convincing evidence that there is no reasonable expectation of reformation by Mrs. Aswell. The State contends the earlier life style of Mrs. Aswell when analyzed in connection with the factors considered by the Boudreaux court clearly established that the State has met its burden of proof and requires the termination of Mrs. Aswell’s parental rights.

While all of these factors are important and the life style of Mrs. Aswell for many years prior to the 1982 hearing should be considered, there is no error in the trial judge’s reliance upon some evidence of improvement in 1982, together with substantial evidence of improvement in the six months immediately preceding the termination hearing, as evidencing reasonable expectation of reformation.

The State argues Mrs. Aswell’s attempted suicide in August, 1982 establishes that Mrs. Aswell has not reformed and shows no reasonable expectation of reformation.

Mrs. Aswell stated that at the time she shot herself she was very depressed because of the recent judgment maintaining the custody of her children in the DHHR, terminating her visitation with them and ordering a proceeding to terminate her parental rights. These circumstances would depress even the most stable mother. She stated that this depression combined with the taking of the prescription drugs Valium and diet pills precipitated her action.

While Mrs. Aswell’s attempted suicide reflects that she remained unstable in August, 1982, this does not establish that there was no reasonable expectation for her reformation in June, 1983 when the termination hearing was held.

There is substantial evidence in the record which supports the trial court’s finding that the State had not carried its burden of proving there is no reasonable expectation of Mrs. Aswell’s reformation by clear and convincing evidence. The trial judge was not clearly wrong and his findings should not be disturbed on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Finally, the State argues the termination should be granted because it is in the best interest of the children to free them for adoption instead of leaving them in the limbo of foster care. We do not consider the argument because the law requires the State to prove each and every element of R.S. 13:1601 D by clear and convincing evidence. The State has failed to prove the requirement that there is no reasonable expectation of the parent’s reformation.

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

      . An attorney appointed to protect the rights of the children participated in the hearing in compliance with R.S. 13:1602 C.

      . The Ouachita Parish District Attorney appointed a DHHR attorney from New Orleans to try the case.

      . 13:1603 A: A. Whenever the court of proper jurisdiction finds that the allegations of Subsection ... D ... are proven true by the evidentia-ry standards set forth in this Section, it may order the termination of parental rights of the parent or parents against whom the allegations are proven.... Under Subsection D of R.S. 13:1601, Paragraphs (1), (2), (3), and (4) must be proven by clear and convincing evidence.

      . At this time the children were in Mrs. Aswell's custody.