text:
    Irvin B. ELDEMIRE, Plaintiff-Appellee, v. Everett SHILTS, Defendant-Appellant.
    No. 83-411.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Jones, Jones & Alexander, Jennifer Jones Bercier, Cameron, for defendant-appellant.
    John L. Van Norman, III, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

The plaintiff, Irvin Eldemire, brought this suit to rescind a lease agreement whereby he leased certain property to the defendant, Everett Shilts. The trial court rendered judgment in favor of the plaintiff, rescinding the lease. The defendant appeals.

The sole issue on appeal is whether the failure of the defendant, lessee, to pay the property taxes on the property in question, as required by the agreement, warranted a rescission of the lease.

The written lease agreement was entered into on November 28, 1972, and covered a small lot of land fronting on Kelso Bayou in Cameron Parish. The term of the lease was established at twenty years commencing on December 1, 1972. The stated consideration was a rental of one dollar per year, although the evidence taken at trial established that in further consideration of the lease, the lessee, Shilts, agreed to cosign a promissory note enabling Eldemire to borrow $3,000.00 from a local bank.

We observe at the outset that we find no clear error in the trial court’s determination that a valid contract of lease existed between the parties. The evidence shows that the agreement of Shilts to cosign a note for Eldemire constituted valid consideration for the agreement. Plaintiff does not seriously contend that the lease is invalid for want of consideration. Rather, plaintiff urges that the aforesaid lease should be rescinded because of defendant’s breach of a material condition thereof, i.e., the lessee’s failure to pay all real estate taxes on the leased property.

The portion of the rental agreement relevant to the issue presented states:

“It is expressly understood and agreed that lessee shall pay any and all utilities and all real estate taxes on the leased premises.

It is not disputed that the lessee, Shilts, has never paid the property taxes on the property in question. Eldemire paid the taxes himself upon receipt of the assessments. He never informed Shilts of the amount of taxes due, nor did he request that Shilts pay the taxes. Shilts testified that he stood ready, willing and able to pay the taxes, but did not do so because he was never notified that the taxes were due.

The appellant, Shilts, contends that the failure of the lessor to demand the payment or reimbursement of taxes from Shilts precludes him from seeking cancellation of the lease on that ground. We agree.

It is well settled that where a lessor customarily accepts late rental payments, such “custom”, by acquiescence of the parties, has the effect of altering the lease agreement with regard to any requirements concerning the punctuality of rental payments. When such “custom” is found to have been created, the lessor’s right to strictly enforce the provisions of the lease is waived, and in order to hold the defendant to the explicit terms of the lease, advance notice must be given the lessee of the lessor’s intention to strictly enforce the terms of the lease in the future. Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3rd Cir.1975); Credeur v. Credeur Credit Corporation, 385 So.2d 926 (La.App. 3rd Cir.1980).

We find that the above stated rules have equal application to a term in the lease requiring the lessee to pay property taxes on the leased property. In the case of Boulevard Investment Corp. v. Boulmay, 79 So.2d 917 (La.App.Orl.Cir.1955), the lease contract provided that the lessee was to pay all property taxes on the property. The custom developed between the parties that the lessor would pay the taxes upon receipt of the tax bills, then call upon the lessee for reimbursement. It was also established that the lessor had never required that the lessee pay the taxes promptly. When the 1953 taxes became due, the lessor paid them, but failed to notify the lessee that the taxes had been paid and that reimbursement was due. The lessor brought suit to rescind the lease, based in part on the lessee’s delinquency in reimbursing the amount paid in property taxes by the lessor. The judgment of the trial court refusing to rescind the lease was affirmed. The court stated:

“It cannot be disputed that the lessee may be expelled from the property if he fails to pay the rent when it becomes due. LSA-C.C. art. 2712. The nonpayment by the lessee of taxes and insurance premiums under certain circumstances might be considered as the nonpayment of rent. But where, due to an understanding between the parties, either positive or tacit, the lessee was left to suppose that absolute punctuality of payment would not be expected of him and that a delay would not be objected to, the lessor is not entitled to rescind the lease and eject the tenant who fails to pay on the very day of maturity.”

In Lee Lumber Company, Ltd. v. International Paper Company, 345 So.2d 212 (La.App. 3rd Cir.1977), writ refused, 347 So.2d 503 (La.1977), the lease agreement obligated the lessee to pay taxes on the timber standing on the leased property. From the years 1946 to 1950, the lessor paid the taxes on both the land and the timber, making no demand on the lessee for reimbursement of the taxes attributable to the timber. The lessor sought to cancel the lease based on the lessee’s failure to pay the taxes on the timber from 1946 to 1950, and on the lessee’s failure to timely pay the rent. The court stated:

“The trial court held that plaintiff Lee was estopped from claiming a cancellation of the lease and pretermitted a resolution of the aforestated issues. We agree. As in this case, where a lessor, by his conduct — no demand for taxes during the years 1946 to 1950; accepting of rental payments for the years 1951 through 1973, after the date on which they were due — creates a custom by which the lessee is led into a false sense of security that it has complied with its obligations as lessee, the lessor thereby waives his right to cancel the lease and is estopped from so doing.”

The above cases make it clear that the failure of the lessee to pay property taxes as stated in a lease agreement is treated in the same way as the failure to pay rent timely. When the practice becomes customary, the lessor may lose his right to cancel the lease by strict enforcement of its terms.

In the instant case, the property covered by the lease is part of a larger tract owned by Eldemire. The property taxes were assessed on the entire tract, and Eldemire paid the taxes without demanding reimbursement for the taxes attributable to the leased property. This is understandable, since the assessment on the entire tract during the first five years of the lease did not exceed $8.05 in any year. The record shows that in more recent years, the assessment has been as high as $59.31, but Eldemire still paid the taxes without demanding reimbursement from Shilts. It is clear to us that it was customary for Eldemire to pay the property taxes. In the absence of any demand upon Shilts for payment or any notification of his intention to strictly enforce the written terms of the lease, Eldemire may not now have the lease cancelled for nonperformance of a term which both parties have ignored from the inception of the lease. The trial court judgment rescinding the lease was error. Right is reserved to the plaintiff-lessor to demand reimbursement from the defendant-lessee for the taxes attributable to the leased property which are legally due to plaintiff under the terms of the aforesaid lease.

For the above and foregoing reasons, the judgment of the trial court is reversed, and plaintiff’s suit is dismissed. All costs are assessed to plaintiff-appellant.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Patrick HUVAL, Plaintiff-Appellee, v. 4 S CONSTRUCTION & MAINTENANCE, INC., Defendant-Appellant.
    No. 83-412.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Morrow & Morrow, Patrick C. Morrow, Opelousas, for defendant-appellant.
    J.B. Willis, St. Martinville, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

4 S Construction & Maintenance, Inc. (defendant) appeals from a judgment of the trial court, making Patrick Huval’s (plaintiff) rule to evict it from a certain tract of land absolute, and ordering it to vacate the same and deliver possession thereto to plaintiff. We affirm.

Defendant raises the following issues:

(1) Whether the trial court erred in finding that it failed to give sufficient notice to plaintiff of its intention to exercise its option to renew a lease plaintiff had given it on the tract of land.
(2) Whether the trial court erred in finding that plaintiff had not acquiesced in defendant’s attempt to exercise its option by cashing a check given him by it.

FACTS

On January 1, 1976, plaintiff and defendant entered into a contract of lease whereby defendant agreed to lease from plaintiff a tract of land described as follows:

That certain lot of land, situated in St. Martin Parish, Louisiana, on the East Side of Bayou Teche, containing one (1) arpent, more or less, and bounded Northerly by the property of Elise Latiolais, Easterly by property of Paul Melancon; Southerly by a public road; and Westerly by property of Lionel Latiolais; see Book 560, folio 412, Entry No. 137424, Conveyance Records of St. Martin Parish, Louisiana.

The primary term of the lease was for a period of five years with the rent set at $300 per year. In addition, defendant was given “the right and option to renew this lease for three additional periods of five years each by giving Lessor written notice of intent to renew sixty days before the expiration of the original five-year term or of any additional five-year terms that the lease is extended”. The lease provided that the rent would increase at the rate of $300 per year for each five-year period that it was extended.

NOTICE OF INTENTION TO EXERCISE OPTION

Steve Schexnayder, defendant’s President, admitted that defendant failed to give plaintiff written notice of its intent to exercise its option to renew the lease within sixty days of the expiration date of the primary term of the lease. Instead, defendant sent plaintiff a check dated January 26, 1982, made out to him in the amount of $600 h

The check was received and negotiated by plaintiff’s wife, who endorsed his name thereon. Defendant argues that, by negotiating this check, plaintiff waived his right to written notice of defendant’s intention to exercise its option to renew the lease. We disagree.

We adopt the following reasoning of the trial court as our own and find it to be dispositive of this issue:

“BY THE COURT: I’m going to submit to you that I think that the matter is decided by the case of Southern Ventures Corporation versus Texaco, Inc., which is a Supreme Court case at 372 So.2nd, 1228 [ (La.1979) ], which involved a lease with an option to renew where a written notice was required not later than sixty (60) days before the expiration of the primary term; exactly the same situation that we have here. Written notice was in fact given but it was given nine (9) days before the expiration of the primary term rather than sixty (60) days before. The lessor did nothing. The lessee remained on the property, continued to make rental payments. The lessor accepted the rental payments. But, the Supreme Court held that the late notice was not sufficient under the terms of the lease, and therefore, the lease expired at the end of its primary term and what they had thereafter was a tenancy by consent, if you will, rather than an extension of the original lease.”

Governor Claiborne Apartments, Inc. v. Attaldo, 235 So.2d 574 (La.1970), expressed the law relative to occupancy of leased premises after the lease expires, referring to the appropriate code articles:

“Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week. The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month. La.Civ.Code Arts. 2689, 2685, 2686.” (Footnote omitted.)

In further support of its position that plaintiff waived his right to written notice of its intention to renew the lease, defendant cites the case of Lingle v. Wainwright, 39 So.2d 843 (La.1949). We find Lingle to be distinguishable on its facts.

In Lingle, plaintiff’s predecessor had leased the premises to defendant by written contract for a primary term of one year at a monthly rental of $250. Under the terms of the lease, defendant had the privilege of renewing the lease for four additional years under the same conditions (except that the monthly rent was increased) provided he notified the plaintiff of his intention to renew on or before March 1, 1946. Defendant failed to timely notify plaintiff of his intention to renew. However, on April 22, 1946, defendant wrote a letter to plaintiff expressing his desire to renew the lease under all the terms and conditions as stated therein. Plaintiff conceded that this notice was duly received. Plaintiff did not protest or inform defendant that the renewal would not be granted because the notice had not been given on or before March 1, 1946. Instead, he remained silent and accepted from defendant the increased rental of $650 per month provided for in the renewal clause of the lease from May 15, 1946, through March, 1947. It wasn’t until March 28, 1947, that plaintiff made his initial complaint in the form of a ten-day notice for defendant to vacate the premises.

Noting these facts, Lingle held, on page 844, that:

“We think it clear that the actions of plaintiff constitute a waiver of his right to insist that notice of renewal be given on or before March 1, 1946. While it is generally held that an option to renew a lease, provided notice is given at or before a specified time of the intention to exercise the privilege, is a condition precedent which must be complied with within the stipulated time (see Annotation, 27 A.L.R. 981 and cases there cited), it is equally well settled that such a provision is for the benefit of the lessor ‘and therefore the notice itself, or any other matter going to the sufficiency thereof, may be waived.’ 51 C.J.S., Landlord & Tenant, § 62, page 611, citing Polizzotto v. D’Agostino, 170 La. 932, 129 So. 534, 536 [(1930)], where the court said:
‘And, further, that, having accepted and acted on said notice as being sufficient, the defendant thereafter cannot be heard to raise the question of the technical informality of the notice, or complete want of notice.’ ”

In the action sub judice, defendant never sent plaintiff written notice of its intention to renew the lease until after February 16, 1982. On that date, plaintiff had his attorney write a letter to defendant in which he stated that it would be allowed to occupy the leased premises for an additional year because plaintiff’s wife had erroneously negotiated the check sent him by it. However, defendant would not be allowed to occupy the leased premises for any greater length of time because it had failed to provide plaintiff with timely written notice of its intention to renew the lease. Thus, in the case before us, plaintiff informed defendant that it would not be allowed to renew the lease before he received written notice of its intention to renew.

It is our opinion that plaintiff did not waive his right to timely written notice of defendant’s intent to renew the lease.

ALLEGED VERBAL AGREEMENT TO RENEW

Defendant contends that it and plaintiff entered into a verbal agreement to renew the above mentioned lease. Defendant relies on Wahlder v. Tiger Stop, Inc., 391 So.2d 535 (La.App. 3 Cir.1980), writ denied, 396 So.2d 1351 (La.1981), as authority for the proposition that parol evidence is admissible to prove that a written lease may be modified by a subsequent oral agreement between the parties. Indeed, Wahlder stands as authority for this proposition even though the written lease provides that modifications must be agreed to in writing to be valid.

Defendant argues that the evidence shows that the parties did enter into a verbal agreement for renewal of the lease. Steve Schexnayder testified that he had a conversation with plaintiff some time in the latter part of 1981, in which he told plaintiff that defendant was going to exercise its option to renew the lease. He stated that plaintiff agreed to the renewal. He further stated that plaintiff sent someone to pick up the $600 check dated January 26, 1982, although he could not remember who this person was.

Plaintiff testified that he could remember no such conversation having taken place. He further denied telling Schexnay-der that he would send someone to pick up the above mentioned check. He did remember talking to Schexnayder about entering into a new lease that would provide for higher rental payments, but stated that both were drinking in a bar at the time and that it was hard for each of them to understand what the other was saying because loud music was being played. Plaintiff insisted that no agreement was entered into by the parties at this time.

While assent to a contract may be implied, that implication must be established and cannot be presumed. Defendant’s burden was to establish a lease for a fixed term. It had to prove a meeting of the minds of the contracting parties that their relationship as lessor and lessee was for the alleged fixed term, by either express language or by circumstances (action or inaction) that necessarily implied the proposition.

The trial court found that defendant had failed to prove that any verbal agreement was entered into by the parties for renewal of the lease, and we agree with this finding.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . Defendant notes that the lease contains the following provision and argues that since plaintiff failed to send it notice by certified or registered mail of its failure to provide written notice to him of its intention to renew the lease, its sending of the $600 check to plaintiff and the subsequent negotiation of that check constitutes sufficient notice of its intent to renew:
      "LESSEE shall not be deemed to have defaulted in the payment of any rental during the five year term of the lease or any renewal of the lease until fifteen days after LESSEE shall have received from LESSOR notice by registered or certified mail of LESSEE’S failure to make such payment. The lease or renewal of the lease shall continue in full effect if LESSEE shall tender the payment within fifteen days after the receipt of such notice; however, it will owe to LESSOR a penalty of ten (10) per cent of the rental due for that year.”
      We agree with the trial court's conclusion that this provision has nothing to do with the method whereby defendant was to exercise its option to renew the lease.

      . Defendant, in its brief filed in this Court, states that plaintiff should be estopped from claiming that its “attempted” renewal of the lease was ineffective. However, it is clear from a reading of the authorities relied on by defendant that it is actually arguing that plaintiff waived his right to receive written notice of its intention to renew the lease.


text:
    Wilfred OWENS, Sr., Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 83-415.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Writ Granted Feb. 27, 1984.

      Landry, Watkins & Bonin, Nam M. Landry, New Iberia, for defendants-appellants.
    Thompson, Sellers & Bundick, Roger C. Sellers and Dan Rhodes, Abbeville, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

Wilfred Owens, Sr. (plaintiff) brought this workmen’s compensation action to recover disability benefits from defendants, Heldenbrand, Inc. (plaintiff’s former employer), and its workmen’s compensation insurer, Liberty Mutual Insurance Company (Liberty). Plaintiff also sought to recover penalties and attorney’s fees.

After trial on the merits, the trial court rendered judgment in favor of plaintiff, awarding him permanent total disability benefits at the rate of $45.50 per week for 500 weeks. However, the trial court also rendered judgment in favor of defendants, denying plaintiff’s claim for penalties and attorney’s fees.

Defendants appeal and raise the following issues:

(1) Whether the trial court erred in finding that plaintiff was entitled to an additional 500 weeks of disability benefits as a result of the recurrence of an inguinal hernia sustained by plaintiff in May, 1977.
(2) Whether the trial court erred in finding that defendants should commence paying this additional 500 weeks of disability benefits to plaintiff on April 27, 1982.

Plaintiff has answered the appeal and raises the issue of whether the trial court erred in finding that defendants’ action in terminating the payment of disability benefits to him was not arbitrary, capricious, or without probable cause.

FACTS

Plaintiff’s action is based upon the recurrence of an inguinal hernia initially caused by a work-related accident which occurred while he was employed by Heldenbrand, Inc. This is not the first time that this matter has been the subject of litigation.

■ The accident in which plaintiff sustained the original hernia occurred on July 12, 1968. On August 23, 1972, the third recurrence of this same hernia was diagnosed, although plaintiff had suffered no trauma. At this time, he was no longer employed by Heldenbrand, Inc. On May 15, 1973, plaintiff filed suit against defendants for disability benefits. An exception of the prescription of one and two years (as provided for by LSA-R.S. 23:1209) was filed by defendants. From a judgment of the trial court sustaining this exception, plaintiff appealed.

In Owens v. Liberty Mutual Insurance Co., 296 So.2d 449 (La.App. 3 Cir.1974), writ granted, 299 So.2d 787 (La.1974), we found that the trial court had incorrectly sustained defendants’ exception of prescription. However, we also found that plaintiff’s petition failed to state a cause of action as there was no allegation therein, “... that this third recurrence, which was diagnosed on August 23, 1972, resulted from injury or accident arising out of and in the course and scope of plaintiff’s employment by Heldenbrand, Inc. ... ”. Thus, we affirmed the judgment of the trial court (as amended).

In Owens v. Liberty Mutual Insurance Co., 307 So.2d 313 (La.1975) (hereinafter referred to as “Owens”), the Louisiana Supreme Court reversed our judgment and remanded the case to the trial court for further proceedings consistent with the opinion rendered therein. On 307 So.2d, at 317, Owens held that:

“Under the jurisprudence previously cited, however, a recurrence or aggravation of a hernia initially sustained at work is regarded as compensable and as resulting from injury by accident during the course and scope of the employment, even if by the time of the recurrence the employee had left the original employment. See, e.g., Brock v. Jones & Laughlin Supply Co., 39 So.2d 904 (La. App. 1st Cir.1949). That is, the initial accident at work is the factual and legal cause of the subsequent recurrence and the disability consequent to it, even though the recurrence occurs away from the premises and while the claimant is no longer employed by the master for whom he worked at the time of the initial hernia.”
“This principle is here applicable. Thus, the recurrence of the hernia in 1972 is compensable as a separate hernia, as provided by (4)(q)(4); and prescriptive periods as to compensation for this recurrence commence with this 1972 date. However, a legal cause of this recurrence is regarded, as formerly, as the initial injury (hernia) at work — so that the recurrent hernia results “from injury by accident arising out of and in the course and scope of employment”, as required by (4)(q)(l).
The employer is protected against abuse by the requirements of (q)(l) of prompt report and treatment of the recurrence; but, on the other hand, the employee, who by the 1968 amendment was obliged to submit to surgery and take the risk of recurrence, is protected against such minor but appreciable risk by (4)(q)(4)’s allowance to him of compensation for disability resulting from the recurrence. As compared with the pre-1968 hernia accident, the employer by surgery now terminates his liability as to 19 out of 20 hernia disabilities — but we can find no intention of the 1968 legislation to exempt him from liability for the recurrent hernia just because the recurrence occurs after the workman has left the work premises or the employment.”

On September 16, 1975, this matter was tried again. On February 24, 1976, the trial court rendered judgment awarding plaintiff disability benefits for permanent total disability, “... at the rate of FORTY-FIVE AND 50/100 ($45.50) DOLLARS per week, commencing August 23, 1972, and continuing for a time not to exceed five hundred (500) weeks, ... ”.

In May of 1977, plaintiff suffered his fourth (and last) recurrence of the original hernia, and corrective surgery was performed in November of 1979. Disability benefits of $45.50 per week were paid to plaintiff by Liberty through April 19, 1982. Defendants then terminated the payment of disability benefits to plaintiff as the last payment represented the 500th payment made to him.

In response, plaintiff filed the present action against defendants, alleging that they had failed to recommence the payment of disability benefits to him, as required by law, and that said failure was arbitrary, capricious, and without probable cause.

ADDITIONAL COMPENSATION

Defendants contend (1) that the trial court erred in awarding plaintiff an additional five hundred weeks of disability benefits under the provisions of LSA-R.S. 23:1221(4)(q)(iv), as that statute read at the time of plaintiff’s original injury; (2) that the trial court incorrectly interpreted certain language found in Owens to mandate this result; and (3) that LSA-R.S. 23:1221(2) (in effect at the time of plaintiff’s original injury) clearly restricted anyone found to be totally and permanently disabled to no more than five hundred weeks of disability benefits.

In Owens, the court stated, on page 316, that:

“The 1968 amendment added subsection (q) to section (4) of La.R.S. 23:1221. Sections (1), (2), and (3) provide for the benefits due for disability — temporary total, permanent total, and partial, respectively. Section (4) provides a schedule of compensation awards for specific losses, including hernia since 1968.
The thrust of the 1968 provisions is to require an employee disabled by a hernia which results from a work-injury to submit to surgery. The penalty for his failure to accept surgery, if not reasonably excused, is the limitation of his weekly compensation to twenty-six weeks.
Nevertheless, to protect the employee from the minor but real risk of recurrence, the 1968 statute further provides at (4)(q)(4): “Recurrence of the hernia following surgery shall be considered as a separate hernia, and the provisions and limitations of this section shall apply.” (Italics ours.) The intent thus manifested, for purposes of the self-contained provisions of the section, is to treat each hernia as separately compensable, as if caused by accident on the date of recurrence.” (Emphasis ours.)

Apparently, the trial court concluded that plaintiff was entitled to receive an additional five hundred weeks of disability benefits based on the above emphasized language found in Owens, and LSA-R.S. 23:1221(4)(q)(iv). We disagree.

It is our opinion that the legislature, in adopting LSA-R.S. 23:1221(4)(q)(iv), never intended to allow a claimant to be declared totally and permanently disabled twice for the same work accident.

LSA-R.S. 23:1221(4)(q)(ii) provided that:

“(ii) If the employee submits to treatment, including surgery, recommended by a competent physician or surgeon, the employer shall pay compensation benefits as elsewhere fixed by this Chapter.” (Emphasis ours.)

Here, plaintiff submitted to the recommended surgery and defendants paid him compensation benefits (under the provisions of LSA-R.S. 23:1221(2)) “as elsewhere fixed by this Chapter”. Thus, plaintiff has received the full amount of disability benefits to which he was entitled.

Defendants also rely on the following language found in Montagnino v. Allstate Insurance Company, 336 So.2d 235 (La.App. 1 Cir.1976), writ denied, 339 So.2d 24 (La.1976), where the court stated, on page 238, that:

“An examination of prior jurisprudence indicates that recovery of workmen’s compensation benefits for total and permanent disability, in eases where the injured party has been granted disability benefits for prior injuries, is contingent on three factors. First, the second injury must be the result of a second separate accident; second, the second injury must be unrelated to the first injury; and third, the injured party must not in fact be totally and permanently disabled, as to the type of work he was performing prior to the second injury.” (Citations omitted.)

Defendants argue that plaintiff can meet none of the criteria set forth in Montagni-no for a second award of disability benefits for permanent total disability. Therefore, the trial court erred in making such an award to him. We agree. A review of the record clearly shows that plaintiff meets none of these requirements.

OTHER ISSUES

Because of our decision herein, there is no need to discuss the other issues raised by the parties.

DECREE •

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside, and plaintiffs suit is dismissed with prejudice.

All costs of this appeal, and in the trial court, are assessed against plaintiff-appel-lee.

REVERSED AND RENDERED.

      . Actually, our judgment read as follows:
      "For the reasons assigned, the judgment appealed is affirmed insofar as it sustains the exception of prescription as to the original hernia and the first and second recurrences. As to the third recurrence, the exception of prescription is overruled, but this court of its own motion finds plaintiffs petition fails to state a cause of action. All costs in the trial and appellate courts are assessed against the plaintiff.
      Affirmed, as amended.”

        See 296 So.2d, at 452.

      . LSA-R.S. 23:1221(4)(q)(iv) provided that:
      "(iv) Recurrence of the hernia following surgery shall be considered as a separate hernia, and the provisions and limitations of the Section shall apply." (Emphasis ours.)
      When plaintiff suffered his original injury, a very important limitation of the "Section" was that benefits for permanent total disability were restricted to five hundred weeks. The legislature .at that time felt that a person who was determined to be forever unable to do work of any reasonable character was entitled to compensation, for his permanent loss of the ability to earn, only for a period of five hundred weeks.

      . All parties appear to accept August 23, 1972 (the date plaintiffs third recurrence was diagnosed) as being the date of plaintiffs "original” injury. This was apparently based on language found in Owens to the effect that, "... the recurrence of the hernia in 1972 is compensable as a separate hernia, as provided by (4)(q)(4); and prescriptive periods as to compensation for this recurrence commence with this 1972 date.” See 307 So.2d, at 317.


author: DOUCET, Judge.

text:
    Leo Francis WHITNEY, Jr., Plaintiff-Appellant, v. William Roy MALLET, Jr., et al., Defendant-Appellees.
    No. 83-418.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Hank Seldon Hannah, Lafayette, for plaintiff-appellant.
    Onebane, Donahoe, Bernard, Torian, Diaz, McNamara & Abell, James L. Pate, Lafayette, Taylor & Trosclair, Frank P. Trosclair, Jr., Opelousas, A. Octave Pavy, Opelousas, for Emile C. Rolfs, III, Baton Rouge, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Leo Francis Whitney, Jr. filed suit against the City of Opelousas, Sheriff Howard Zerangue and their respective insurers, and officers Keith Savant and Roy Mallet. Plaintiff alleged that in the early morning hours of January 10, 1982, while drinking at a bar in St. Landry Parish, known.as “Toby’s”, he was beaten by officers Savant and Mallet and that said actions were committed under color of state law, within the meaning of 42 U.S.C. § 1983, et seq. The City of Opelousas moved the trial court for summary judgment on the basis that Savant and Mallet were not acting in the course and scope of their employment with the City and that their actions were not committed under color of state law. Mallet was also employed by the St. Landry Parish Sheriffs Dept., thus the department and its insurer filed a Motion for Summary Judgment on the same grounds. The trial court agreed with the movants and granted summary judgment in their favor. Plaintiff appeals.

The depositions filed in the record indicate Keith Savant was employed by the City of Opelousas as a patrolman approximately five (5) years ago and on the night in question, he had gotten off work at 6:00 P.M. Savant testified that he had a date on the night in question and had gone to “Toby’s” bar around 9:30 P.M. The lounge is located outside city limits. Savant testified that at no time during the evening did he ever identify himself as a police officer, nor did he threaten plaintiff with arrest.

His companion for the evening was William Roy Mallet, Assistant Chief of Police for the City of Opelousas, and a Deputy Sheriff under Howard Zerangue. Mallet was also accompanied by a female friend. Mallet disclaimed ever acting in his capacity as a law enforcement officer and denied acting under color of state law. Neither Mallet nor Savant was in uniform.

Prior to January 10, 1982, defendants Mallet and Savant were strangers to Leo Whitney. Sometime during the course of the early morning hours, the plaintiff, Leo Francis Whitney, came to the bar to have a drink. He initiated contact by dancing with Mr. Savant’s date. Mallet and Savant were apparently under the mistaken belief that plaintiff was a private investigator hired by Mallet’s estranged wife to spy on him for the purpose of obtaining evidence in connection with anticipated divorce litigation. There apparently were several exchanges of words and the plaintiff decided to leave the establishment. Upon walking outside the front door to “Toby’s”, the plaintiff was accosted by Savant who proceeded to engage in a fight with the plaintiff, both falling to the ground and continuing the struggle. While Whitney and Savant were on the ground, Mallet came out of “Toby’s” and interjected himself into the fight. Mallet tapped Savant on the shoulder and Savant, who was then on top of Whitney, stood up allowing Mallet access to Whitney who was laying on the ground. Mallet proceeded to strike Whitney several times and beat Whitney’s head against the pavement.

Mallet testified that he was employed in two capacities at the time of the fight: he was Asst. Chief of the Opelousas Police Dept, and a narcotics detective for the Sheriff’s Dept. He worked approximately 40 hours a week in the first capacity and about 44 hours a week in the latter. Mallet further testified that, as a matter of policy, “a police officer is a police officer twenty-four (24) hours a day.” However, he noted that the incident occurred outside city limits and, therefore, he felt this policy would not apply. Mallet also felt the Sheriff Department’s policy would be the same and would apply except that when he is drinking he would not act as a police officer.

In granting the Motions for Summary Judgment the trial court observed that both officers were off duty, out of uniform and each denied any use of police authority. In his Reasons for Judgment the trial judge noted:

“The best evidence the plaintiff could adduce was his own testimony on Page 19 of the criminal transcript:
‘Q. When he grabbed you by the vest did he say anything?
A. He pushed me like that and he said, “Hey, mother fucker, let me tell you, you should know better than to come down here and mess with the law.’

And, the testimony of Andrew Frank, Jr., at page 71 of the criminal transcript, wherein he testified Mallet said:

T don’t want you messing with my men.' ”

The court further noted that plaintiff was not aware of the fact either defendant was a law enforcement officer and there is doubt whether the above statements enlightened him as to their status. Neither defendant threatened the plaintiff with actual arrest. The trial judge concluded that all activity was on a personal basis and not on an official basis.

From that judgment, plaintiff appeals assigning the following specification of error:

The trial court erred in concluding that there existed no genuine issue of material fact with regard to whether or not Mallet and Savant were acting under col- or of state law at the time of the battery and further erroneously construed the law applicable to the case.

Every person who, under color of state law, causes another to be deprived of any rights, privileges, or immunities secured by the Constitution and laws, is liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C.A. § 1983. A physical attack and/or battery by a person, such as a police officer, acting under color of state law comes clearly within the statutory language of 42 U.S.C.A. § 1983. Hardwick v. Hurley, 289 F.2d 529 (7th Cir.1961); Hamilton v. Chaffin, 506 F.2d 904 (5th Cir.1975). This court must decide if there is a genuine issue of material fact with regard to whether or not Savant and/or Mallet were acting under color of state law at the time of the battery upon the plaintiff.

Acts of police officers who undertake to perform their official duties are included within the meaning of 42 U.S.C.A. Section 1983, whether they hew to the line of their authority or overstep it. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law. Johnson v. Hackett, 284 F.Supp. 933 (1968); Robinson v. Davis, 447 F.2d 753 (4th Cir.1971).

In Stengel v. Belcher, 522 F.2d 438 (6th Cir.1975), a case factually similar to the present case, the defendant Belcher was an employee of the Columbus, Ohio, City Police Department. The suit arose out of an incident which occurred in a local cafe at 1:30 a.m. when Belcher, an off-duty policeman, shot and killed two men and paralyzed a third. A fight had broken out in the cafe between two individuals and Belcher, without identifying himself as a police officer at any time, involved himself in the altercation. At some point during the conflict, Belcher produced a pistol and shot three individuals in the cafe. A jury found that under the circumstances Belch-er was acting under color of state law. On appeal to the United States Court of Appeals, 6th Circuit, Belcher contended that his actions were taken as a private citizen, and, in support of that argument, pointed to the facts that he was engaged in private social activity, was out of uniform and off duty and never identified himself as a police officer. The court, in concluding that Belcher did act under color of state law, stated that the fact that a police officer is on or off duty, or in or out of uniform is not controlling. Dwight Joseph, who was Chief of Police at the time of the incident, testified that a police officer was required to take action in any type of police or criminal activity twenty-four (24) hours a day. The court stated that it appeared that Belcher, as a police officer, used poor judgment and employed excessive force. Nevertheless, the court upheld the jury finding that Belcher had, in fact, acted under color of state law when he interjected himself into the conflict at the cafe.

The factual situation before this court closely parallels the factual context of the Belcher case, although the degree of force used in the present case was not as great. From the deposition of Roy Mallet it is clear that: (1) Mallet was employed both by the City of Opelousas Police Department and the Sheriff of St. Landry Parish at the time of the incident; (2) Mallet was ostensibly out of uniform and off duty at the time of the incident at “Toby’s”; (3) Mallet was ostensibly engaged in private social activity at the time of the incident; (4) Mallet never clearly identified himself as a police officer; (5) Mallet candidly admitted that a police officer is on duty twenty-four (24) hours a day; (6) Mallet came upon a fight between two individuals and immediately interjected himself into the fight and committed a battery on the plaintiff; and (7) Mallet admitted that he used poor judgment. In addition, the plaintiff, testified that Savant threatened him, stating “... you should know better than to come down here and mess with the law.”

Facts distinguishing Belcher from the present case include the fact Officer Belch-er was equipped with a can of mace and a .32 caliber revolver that police regulations required that he carry at all times. The 6th Circuit indicated that other material facts led to its decision and stated:

“There was other evidence which permitted an inference that Belcher, although he overstepped his bounds, intervened in the dispute pursuant to a duty imposed by police department regulations.”

In fact, the chief of police testified that Belcher was subject to disciplinary action if he failed to take any action in a criminal situation and that Belcher had in fact acted under authority of such regulations.

The “other evidence” referred to by the 6th Circuit was addressed in the same case under writ of certiorari to the United States Supreme Court in Belcher v. Stengel, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976). The U.S. Supreme Court concluded that the writ for certiorari had been improvidently granted. The Court stated that in addition to the evidence concerning the department’s regulations, the police officer had been awarded workmen’s compensation benefits for the injuries he received in the affray, on the ground that the injuries had been incurred in the course and scope of his employment; that after the affray, the police officer had been granted official leave on account of injuries received “in the line of duty under circumstances relating to police duties”; and, that a board of inquiry had convened to investigate the barroom episode and had determined that the petitioner’s actions were in the line of duty. Further, police officer Belcher testified that he intended to arrest two of the people involved in the fracas at the time he stood up to intervene in same; that he intervened by using a can of mace issued to him by the police department; and, that he was acting pursuant to a police regulation which required his intervention in any disturbance of the peace.

Merely because one is a police officer does not mean his conduct, no matter how outrageous, is actionable under Section 1983. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 1168, 47 L.Ed.2d 405 (1976). It is the nature of the act which must be scrutinized and the action must be committed in the performance of an actual or pretended duty. See: Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); and Johnson v. Hackett, 284 F.Supp. 933 (1968). See also: Sims v. Adams, 537 F.2d 829 (5th Cir.1976); Aulds v. Foster, 484 F.2d 945 (5th Cir.1973); and Gordon v. Leeke, 574 F.2d 1147 (4th Cir.1978).

Appellees emphasize that Mallet and Savant were outside their jurisdiction as city police officers. They claim they were not intending to act as city police officers, nor did they make any overtures to the plaintiff that led him to believe they were police officers. Neither officer was uniformed or carried identification, identifying themselves as city police officers, nor did they attempt to place the appellant under arrest.

In Delcambre v. Delcambre, 635 F.2d 407 (5th Cir.1981), the Chief of Police for the Town of Delcambre, was sued under Section 1983 for an assault which occurred on the premises of the city police station, and while the Chief was on duty. The altercation arose out of an argument over family and politics and the plaintiff was not arrested, nor threatened with an arrest. The 5th Circuit Court of Appeal found that the trial judge was correct in dismissing the claim against the City and the Chief of Police, as the Chief of Police was not acting under color of state law. Although the Chief was on duty and the altercation occurred on the premises of the police station, the nature of the act was found to be personal.

To prevail under 42 U.S.C. § 1983, the appellant must show that Savant and Mallet acted under color of state law and that the City of Opelousas has a policy or custom, official or unofficial, to deprive citizens of their constitutional rights. In Monell v. Depart. of Social Serv. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the court, while recognizing that Section 1983 authorizes suits against municipalities, held that a municipality cannot be held liable solely on the basis of respondeat superior under Section 1983. State action is not required under Section 1983; action “under color of state constitutional right” satisfies the “color of law” requirement. 23 VAND.L.REV. 1341 (1970).

One who moves for summary judgment has the burden of demonstrating clearly the absence of genuine issue of fact and any doubt as to the existence of such an issue is resolved against the mover. Hoffman v. Partridge, 172 F.2d 275 (D.C. Cir.1949). In a Section 1983 action, as in others, inferences to be drawn from underlying facts contained in moving party’s materials must be viewed in a light most favorable to the party opposing the motion. Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavit show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. art. 966. Papers supporting the position of the party moving for summary judgment are to be closely scrutinized, while the opposing papers are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A summary judgment is not appropriate when it is based upon affidavits and accompanying pleadings and other documentary evidence to establish subjective facts such as motive, intent, good faith or knowledge. Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir.1974), writ ref. 302 So.2d 308 (La.1974), Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir.1969). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubts should be resolved in favor of a trial on the merits. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir.1980).

Nor is summary judgment appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence or the judicial determination of subjective facts. Butler v. Travelers Insurance Co., 233 So.2d 271 (La.App. 1st Cir.1970); Smith v. Preferred Risk Mutual Ins. Co., 185 So.2d 857 (La.App. 3rd Cir.1966).

Our review of the factual allegations as well as the material found in the affidavits and depositions persuades us that, resolving all doubts against the mov-ants, a genuine issue of material fact exists as to whether Savant and Mallet were acting under “color of law” within the context of Section 1983. Accordingly, we resolve these doubts in favor of trial on the merits. Cates v. Beauregard Electric Cooperative, Inc., supra.

For the reasons assigned hereinabove, the judgment of the trial court is reversed and the case is remanded. Costs of this appeal are assessed against the movants, to be divided equally.

REVERSED AND REMANDED.


text:
    Jane Clarius FREET, Plaintiff-Appellant, v. Gary Wayne FREET, Defendant-Appellee.
    No. 83-419.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Trimble, Randow, Percy, Wilson & Foote, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    Kennedy & Yeager, Charles J. Yeager, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

This is a suit for post-annulment alimony and child support filed by Jane Clarius Freet as the putative spouse of Gary Wayne Freet. At issue on appeal is the status of the parties with regard to good faith and what amount, if any, is proper for alimony and child support.

FACTS

Gary Wayne Freet and Virginia Ann Peavy were married in Brewton, Alabama, in August of 1962. Although the two physically .separated a short time after the marriage, a final judgment of divorce was not rendered until March 14, 1968, in Escambia County, Florida. Prior to the rendering of the divorce decree, Gary Wayne Freet married Jane Clarius in Rapides Parish, Louisiana, on November 20, 1967. Thus, a legal impediment existed as to his second marriage. One child, Steven, was born of the second marriage.

Because of the legal impediment, Jane Clarius Freet filed a petition for nullity on June 26, 1982. A judgment of nullity was granted on December 23, 1982. Subsequently, Jane instituted proceedings by rule seeking post-annulment alimony and child support.

The trial court found that Jane was in good faith, but Gary was in bad faith. Therefore, Jane was legally entitled to post-annulment alimony. The trial court further found, however, that Jane’s economic circumstances did not warrant an award of alimony. Child support was set at $250 per month.

Jane has appealed, claiming that the trial court erred in its finding that her economic circumstances did not justify an award for alimony. Also, she seeks an increase in the amount awarded for child support. Gary has answered that appeal seeking a reversal of the trial court’s finding as to the good faith of the parties and in the alternative, praying for affirmation of the trial court’s finding.

GOOD FAITH OF THE PARTIES

Under the putative marriage doctrine, it is now well settled that a good faith spouse can receive post-annulment alimony from the other spouse when the latter is in bad faith. Cortes v. Fleming, 307 So.2d 611 (La.1973). Good faith in this context means an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502 (La.1949).

Gary, in answer to appeal, contends that the trial court erred in his finding as to the good faith of the parties. He argues that the state of mind of the parties was exactly the same and therefore the trial court could not have found one in good faith and the other in bad faith. He also alleges that the presumption of good faith in his favor was not rebutted. Schaefer v. Schaefer, 379 So.2d 864 (La.App. 4 Cir.1980).

The facts show that Jane knew of the existence of her husband’s prior marriage, but that fact does not prevent her from being in good faith simply because she does not conduct an independent investigation into the prior relationship. Gathright v. Smith, 368 So.2d 679 (La.1978). She was told by her husband that his marriage occurred in 1962 and lasted only a short time. Since Jane’s marriage to Gary did not take place until four or five years after his prior marriage, she was justified in her belief that there was no legal impediment to the marriage. We can find no evidence which shows that Jane received any information which cast any real doubt on the validity of her marriage.

Gary, on the other hand, blindly relied on the assertion of his ex-wife, who was located in Florida. He knew as late as the summer of 1967 that his divorce proceedings had not yet begun, and then failed to check on the status of the proceedings before his wedding in 1968. Because we find that the trial judge was not clearly wrong in his evaluations, we affirm the trial court’s finding that Jane was in good faith and Gary was in bad faith

POST-ANNULMENT ALIMONY

Post-annulment alimony is described as a pension, indemnity or damage right. Although not perfectly analogous, post-annulment alimony is closely akin to post-divorce alimony under Louisiana Civil Code Article 160, as opposed to alimony penden-te lite under Civil Code Article 148. Super v. Super, 397 So.2d 1084 (La.App. 4 Cir. 1981). Thus, we feel that in order to receive post-annulment alimony from a bad faith spouse, the good faith spouse must show that he/she has not sufficient means for “support”. LSA-C.C. Article 160.

The term' “support” has been interpreted to include food, clothing, and shelter, as well as reasonable and necessary transportation expenses, utility expenses, medical and drug expenses, household expenses, and income tax liability, generated by the alimony payments. Moss v. Moss, 379 So.2d 1206 (La.App. 3 Cir.1980).

At the hearing on the rule, Jane offered as evidence an income and expense list which listed her expenses at $1,338.19. Some of those items, however, should not have been considered as proper expenses. The evidence also shows that Jane earned approximately $8,620 in gross income from her job as a secretary, as well as earning approximately $1,000 to $1,200 per year from a small business run from her home. A trial judge is in a much better position to judge the credibility of witnesses and is therefore vested with much discretion in determining an appropriate amount of alimony. Only if the judge has abused his discretion and gone beyond the acceptable range of alimony awards is the award to be adjusted or reversed. Buxton v. Buxton, 411 So.2d 1273 (La.App. 3 Cir.1982). Adjusting for the expenses which should not have been included and considering Mrs. Freet’s income, we cannot say that the trial judge has gone beyond the acceptable range of awards which would be appropriate under the circumstances. His finding that Jane Freet was not in necessitous circumstances was not an abuse of his discretion.

CHILD SUPPORT

The trial court awarded $250 per month as support for the minor child. We feel that $250 is an adequate amount for Gary Freet to pay to satisfy his obligation in supporting his 10-year-old child. We find no error in the trial court’s determination in this respect.

DECREE

For the aforementioned reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between the parties litigant.

AFFIRMED.

      .Accordingly, we need not reach the issue of whether a good faith spouse can receive post-annulment alimony from another good faith spouse and express no opinion as to the correctness of the decision in Galbraith v. Galbraith, 396 So.2d 1364 (La.App. 2 Cir.1981), writ denied, 401 So.2d 975 (La.1981), which held that a good faith spouse can recover alimony from another good faith spouse, as long as the spouse seeking alimony is free from fault.

      . Post-annulment alimony is not specifically provided for in the Code. The court, in Cortes, supra, found that it was available through LSA-C.C. Arts. 117, 118 and 119; and, by analogy, through LSA-C.C. Article 160; and through LSA-C.C. Art. 2315.

      . For example, "Absence of fault” is often not an issue in an annulment proceeding.

      . Personal and grooming necessities and entertainment are not within the scope of Art. 160. Her hospitalization and life insurance expenses were listed twice. The "miscellaneous” expenses and fixed obligations were so vague as to make it impossible to determine if they could be properly included. Finally, many of the expenses would be more appropriately classified as child support expenses. Among these would be the educational expenses and babysitting, as well as the child’s proportion of the medical and dental bills and his share of the food and clothing.


author: DOMENGEAUX, Judge.

text:
    Howard Joseph WYATT, Applying for Adoption, Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC WELFARE, and Wayne Earl Webb, Defendants-Appellees.

    No. 83-421.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Young & Burson, M. Terrance Hoychick and H. Kent Aguillard, Eunice, for plaintiff-appellant.
    Peter C. Piccione, Jr., Lafayette, for defendants-appellees.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.

      . La.R.S. 9:424 provides in specific terms that: "The petition shall be styled: ‘In re _, applying for adoption.’ ”

   DOMENGEAUX, Judge.

This is an adoption proceeding. The petitioner, Howard Joseph Wyatt, is the stepfather of Leslie Kathleen Webb, the eleven year old minor child. The adoption was objected to and opposed by her legitimate father, Wayne Earl Webb. The stepfather devolutively appeals the judgment denying the adoption.

FACTS

Howard Joseph Wyatt, plaintiff-appellant, filed this petition for the adoption of Leslie Kathleen Webb, a minor. Appellant’s spouse, Kathleen Wyatt, is the natural mother of the minor child.

On July 15, 1974, appellant’s spouse, Kathleen Wyatt, was divorced from appel-lee, Wayne Earl Webb, in Jefferson County, Texas. In that judgment, Kathleen Wyatt was awarded custody of their minor child (subject to reasonable visitation privileges), and appellee was ordered to pay child support in the amount of $125.00 per month.

In August, 1975, Kathleen Wyatt and Wayne Webb entered into a written “Child Visitation Agreement,” after appellee had filed suit in Texas seeking to set specific visitation privileges. (This suit was later amended by Webb seeking a change in custody from Mrs. Wyatt to him.)

In March, 1977, Mrs. Wyatt obtained a judgment in the First Judicial District Court for Caddo Parish, Louisiana, which recognized and made executory the 1974 Texas divorce decree and child custody grant. No award of child support was ordered however, because that Louisiana court did not have personal jurisdiction over the defendant.

In May, 1977, appellee proceeded with the 1975 suit in the Texas court. Leslie Kathleen Webb was represented by an appointed guardian ad litem. The Court of Domestic Relations for Jefferson County, Texas, changed the original custody decree and appointed Wayne Webb managing conservator, i.e., granting custody of Leslie Kathleen Webb to her father. This modification judgment was obtained by default of Kathleen Wyatt. At all times, both Leslie and her mother remained domiciled in Louisiana.

In November, 1982, Mr. Webb filed a petition for writ of habeas corpus in the Twenty-seventh Judicial District Court, St. Landry Parish, Louisiana. On December 10, 1982, plaintiff-appellee, Howard Wyatt, filed a petition for adoption of the minor child, Leslie Kathleen Webb. The trial judge denied the adoption. In the written reasons for judgment, the trial judge stated:

“In my opinion, the evidence does not justify a finding that Mr. Webb has forfeited his paternal rights by his failure to support his child for a period of one year under the provisions of LSA, R.S. 9:422.-1. On the contrary, the evidence demonstrates that he supported his daughter as ordered by the Court of Domestic Relations, Jefferson County, Texas, from 1974 to 1977 when visitation and contact with her was made extremely difficult by his former wife, and that he is genuinely dedicated to re-establishing and maintaining his paternal ties with his daughter and fulfilling his paternal obligations towards her.”

ISSUES

The appellant makes three specifications of error, contending that: (a) the trial court committed manifest error by finding that the natural father had not waived his right to consent to the adoption; (b) the trial court committed manifest error in finding that the natural mother (appellant’s wife) interfered with visitation and contact between the natural father and the child; and that (c) the trial court committed manifest error in its application of the provisions of La.R.S. 9:422.1.

WAIVER OF CONSENT TO ADOPTION

Adoption is in derogation of the natural rights of a legitimate parent to his or her child (and of the child to his or her parent). Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir.1974), writ denied, 296 So.2d 832. Therefore, adoption statutes must be strictly construed in favor of the actual parent and against the adoption. Adoption of Edwards, 369 So.2d 210 (La.App. 3rd Cir.1979).

The statutory requirements include La. R.S. 9:422.1 which sets forth the conditions dispensing with parental consent:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child then the consent of the other legitimate parent is not necessary when the spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction, and if any one of the following conditions exist:
(1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.
(2) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.
(3) The other legitimate parent has refused or failed to visit, communicate, or attempt to communicate with the child, without just cause, for a period of two years.”

In this case, the initial statutory requirement has been met, i.e., the spouse of the petitioner is the legitimate parent of the child. The second statutory requirement has also been satisfied, i.e., the spouse of the petitioner—the natural mother—has been granted custody of the child by a court of competent jurisdiction. The original Texas divorce decree of 1974 granted custody to the mother; this decree was recognized and made executory in Louisiana in March, 1977, in Caddo Parish, and in December, 1982, in St. Landry Parish. The father has stipulated that the mother has had physical custody of the child since 1974. The third requirement which dispenses with the consent of the other legitimate parent has been fulfilled as well, i.e., the other legitimate parent is a non-resident of Louisiana and has failed to support the child for a period of one year after judgment awarding custody to the mother. La.R.S. 9:422.1(2). The intent of this provision has been explained by this Court:

“The purpose of the statute, by its very terms, is merely to substitute for consent, otherwise necessary for adoption, the fact of failure to provide support. The support must be court-ordered if the party owing it is within the state; if the party is a non-resident, a court order is not necessary.”

Adoption of Latiolais, 376 So.2d 555 (La.App. 3rd Cir.1979), affirmed 384 So.2d 377 (La.1980). The burden of proof is on the person applying for the adoption to establish the existence of conditions contained in this section of the statute under which consent of the legitimate parent is rendered unnecessary. In Re Kennedy, 357 So.2d 905 (La.App. 2nd Cir.1978). We find that petitioner sustained the burden of proof and demonstrated strict compliance with the adoption statute. Burson v. Lasseigne, 337 So.2d 663 (La.App. 3rd Cir.1976).

In addition to the enumerated statutory conditions, the jurisprudence also requires:

“1) that the failure to pay child support must have been without just cause, In re BAS, 424 So.2d 405 (La.App. 2nd Cir.1982), and 2) that the adoption must be in the best interest of the child, Adoption of Latiolais, 384 So.2d 377 (La.1980).”

In Re MDA, Applying for Adoption, 427 So.2d 1334 (La.App. 2nd Cir.1983).

Mr. Webb claimed that he had two reasons which provided “just cause” for failure to pay child support, namely his former wife’s interference with the relationship between father and daughter; and that in 1977 he obtained a Texas decree which appointed him managing conservator of the minor child,i.e., custody, thereby relieving him of any obligation to pay child support. The trial court found that the evidence substantiated Mr. Webb’s contentions and therefore the provisions under La.R.S. 9:422.1 did not apply to Mr. Webb. We find that the trial judge committed manifest error by misapplying La.R.S. 9:422.1.

Concerning the 1977 Texas custody decree, in our appreciation of the applicable Texas jurisdictional statute in effect in 1977 [see Tex.Fam.Code and Title 2, Section 11.05 (Vernon)], it appears that the jurisdictional elements involved in the modification decree, which awarded custody by default, were not sufficient to form the basis for an award of custody. See Gunther v. Gunther, 478 S.W.2d 821 (Tex.Civ. App.1972); Maxwell v. Maxwell, 204 S.W.2d 32 (Tex.Civ.App.1947); and Milner v. Gatlin, 261 S.W. 1003 (Tex.Com.App.1924). Therefore, we conclude that the exercise of jurisdiction to determine the change in custody by the Texas court cannot be relied upon by Mr. Webb to place him outside the provisions of La.R.S. 9:422.1.

As to the issue of the application of La.R.S. 9:422.1, we note that interference with visitation privileges must be preceded by a regular attempt to exercise these rights. The facts of this case show that Leslie’s mother and stepfather never tried to conceal Leslie’s whereabouts from Mr. Webb, nor did they refuse to let Mr. Webb visit or communicate with Leslie (although Mr. Wyatt candidly stated at trial that he did not encourage Leslie to re-establish a relationship with her natural father). To the contrary, Mrs. Wyatt testified at trial that Mr. Webb always had knowledge of Leslie’s home address, either through Mr. Webb’s Texas attorney or Leslie’s maternal grandmother or Mr. Wyatt’s former wife. Mr. Webb admitted at trial that he made no effort to visit Leslie because it was too economically burdensome and that he was advised by his Texas attorney not to submit to personal jurisdiction in Louisiana. Mr. Webb also admitted that he never attempted to enforce the 1977 Texas custody decree because it would have required him to submit to personal jurisdiction in Louisiana, and further, that the custody decree was only a means to force Mrs. Wyatt to grant more liberal visitation rights, e.g., to allow Leslie to visit in Texas at Mrs. Wyatt’s expense. Mr. Webb’s failure to make child support payments, under the guise of the 1977 Texas decree simply because he thought he was being denied visitation rights does not constitute an adequate excuse as to the issue of whether the adoption should be permitted. In re Genin, 240 So.2d 46 (La.App. 4th Cir.1970).

Finally, in all adoptions, and particularly the proposed adoption here, a primary factor for the courts to consider is the welfare of the child, or the child’s best interest. Domingue v. Thibodeaux, 200 So.2d 784 (La.App. 3rd Cir.1967). We are not concerned here solely with the rights of the legitimate father, but also the best interest of Leslie herself. Adoption ofLa-tiolais, supra, at 378.

“Even where the statutory requirements are met and the nonsupporting parent has forfeited the right of consent, the adoption can be denied in order to serve the best interests of the child. Where, for example, the parent proposing to adopt has been married for a brief period, there is no abuse of discretion in denying the adoption. Domingue v. Thibodeaux, 200 So.2d 784 (La.App. 3 Cir.1967). In the instant case, the trial court did not decide against the adoption on the basis of the child’s best interests. The record establishes that the proposed adoption would best serve the welfare of the minor. In re Merrill, 246 So.2d 207 (La.App. 1 Cir.1971). The trial court erred in refusing to approve the adoption.”

Adoption of Edwards, supra, at 213.

We realize that the trial court is not bound to automatically grant the adoption and has some discretion in disallowing the adoption even when the statutory requirements have been met if denying the adoption is based upon extenuating circumstances, and is in the best interest of the child. However, we find no justification in Mr. Webb’s failure to uphold his natural and legal parental obligations to support his daughter. We also find that, contrary to the trial judge’s determinations, permitting the adoption would be in Leslie’s best interest. There appears to exist a healthy relationship of love and affection between Leslie and her stepfather which outweighs any advantage to Leslie of a re-established relationship with her natural father after a six year hiatus.

DECREE

For the above and foregoing reasons, the judgment of the trial court herein is reversed, and it is now Ordered that there be judgment herein in favor of petitioner, Howard Joseph Wyatt, allowing the adoption of Leslie Kathleen Webb by him.

It is further Ordered that the interlocutory decree be dispensed with.

It is further Ordered that the child known to petitioner as Leslie Kathleen Webb be declared, for all legal purposes, to be the child of the petitioner to the same extent as if the child had been born of the marriage between petitioner and his spouse.

It is further Ordered that the name of the child be formally changed to Leslie Kathleen Wyatt.

It is further Ordered that once this judgment becomes final, that the Clerk of the Twenty-Seventh Judicial District Court shall forward a certified copy of this decree to the Director of the Department of Health and Human Resources and also forward, on a form supplied by the Office of Family Services of the Department of Health and Human Resources, his certificate of this decree to the Louisiana State Registrar.

Costs at trial and on appeal are assessed against Wayne Earl Webb.

REVERSED AND RENDERED.

      . Howard and Kathleen Wyatt were married on July 24, 1974, in Caddo Parish, Louisiana. The minor child, Leslie, has resided with them since that time.

      . Mr. Webb was represented in that proceeding by an attorney appointed curator ad hoc.

      .During the pendency of these proceedings, attorneys representing Mrs. Wyatt and Mr. Webb were conducting negotiations to establish custody in both Louisiana and Texas for Mrs. Wyatt, and specific visitation privileges for Mr. Webb.

      . At the hearing pursuant to rule held on December 10, 1982, Mr. Webb and Mrs. Wyatt stipulated to visitation privileges and custody of the minor child. A judgment which awarded custody to Mrs. Wyatt and established visitation terms for Mr. Webb was rendered in St. Landry Parish (making executory the judgment of the First Judicial Court for Caddo Parish, Louisiana). This judgment was then made executory in Texas on January 5, 1983.


author: YELVERTON, Judge.

text:
    Bruce H. LANGFORD, Plaintiff-Appellant, v. CITY OF LEESVILLE, Defendant-Appellee.
    No. 83-444.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Tillman & Fontenot, Elvin C. Fontenot, Jr., Leesville, for plaintiff-appellant.
    Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr., Alexandria, Hall, Lestage & Landreneau, F. Steve Landre-neau, DeRidder, Smith, Ford & Clark, John C. Ford, Leesville, for defendant-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   YELVERTON, Judge.

This is a wrongful death suit. From a judgment dismissing his claim the plaintiff has appealed. We affirm.

After carefully considering the facts as disclosed by the record, we conclude that the trial court was eminently correct in its findings of fact and we adopt those findings of fact as our own. The trial court found as follows:

“Plaintiff sued for the alleged wrongful death of his son, Johnny Langford, who died in September, 1978, as a result of a self inflicted gunshot wound on August 31, 1978. On the latter date he was arrested by Lt. Buck Massey of the Leesville City Police Department incidental to investigation of burglary and theft. Massey was assisted therein by Detective Willard Horton, a Vernon Parish Sheriff’s Deputy. The defendants are the City of Leesville and Sheriff Frank Howard, the employers of the officers.

“Young Langford was residing at the time in a small frame dwelling leased by his father and situated across the street from the rear of his father’s place of business, Tex’s True-Value. The officers enlisted the aid of plaintiff, and, when requested by his father to do so, Johnny Langford surrendered to the officers without resistance.

“After taking him to the police station, Johnny Langford admitted the theft, signed a permission to search, following which the officers and Langford returned to the residence on Schwitzer Street and recovered items taken in the theft. After returning to the police station, the officers were informed that Langford was also wanted in connection with a burglary and theft in Alexandria. After admitting involvement in the Alexandria offense, he consented again to accompany the officers to the residence to assist them in recovering the goods taken there. On this occasion, after pointing out some of the items taken in Alexandria, and otherwise assisting them, Langford told the officers that he wanted to secure the back door. Officer Massey then accompanied him for that purpose but, as they approached the rear door, Langford broke and ran into the house, locking the door behind him. Shortly thereafter Massey heard two shots and a thud. Detective Horton gained entry through a window and the officers found Langford lying on his back. A blue steel .38 caliber revolver, which neither officer had seen, was lying at Johnny Lang-ford’s feet. He was then rushed to the hospital but died as a result of complications from the wound on September 8, 1978, in Alexandria, Louisiana.

“Plaintiff seeks recovery from defendants, contending that the officers were negligent in not restraining the deceased when they knew or should have known that he had been and was then emotionally disturbed and that he had a long record of criminal offenses.

“Plaintiff introduced, without objection, the arrest and offense data relative to Johnny Langford (P-6, in globo).

The offenses charged included: (1) theft of $500.00 alleged to have occurred November 24,1975; (2) burglary and theft, May 3, 1978; (3) burglary and theft, July 28, 1978; (4) simple escape, August 23, 1978; (5) theft from one Jay Hunt (originally charged by Hunt with armed robbery), June 9, 1978; (6) a charge of crime against nature, 1975; (7) various misdemeanor charges including disturbing the peace, resisting arrest.

“Although the record is incomplete in that it does not reflect the disposition on these various charges, many, if not most of them, did not result in any kind of conviction. Plaintiff did testify that his son had served about one year at Louisiana Training Institute for a juvenile offense.

“The only charge within the two or three years prior to his death which was accompanied by any alleged violence was brought by one Jay Hunt. A careful review of the police records in that case, however, raises serious doubts regarding the credibility of the complaining witness. Following the alleged armed robbery and act of forced sodomy or crime against nature, the alleged victim, according to his own statement, requested Langford to drive him to Fort Polk. Other aspects of the statement of the accuser were entirely implausible. Langford’s version of what happened differed markedly, and his statement, unlike that of the alleged victim, was subjected to a voice stress analysis, and the analyst reported no deception on his part. Probable cause was not found for the serious charge of armed robbery.

“Plaintiff’s counsel emphasized that Johnny Langford escaped from Detective Horton only a few days prior to the arrest of August 31, 1978. Horton verified the incident but explained that he was brought in only shortly thereafter by his father without resistance or further incidence.

“In summary, the documents and testimony concerning decedent’s criminal history reflected that he had been in trouble on numerous occasions, that he had difficulty with his own father, that he took things that did not belong to him and that there was aberrant behavior on his part. They do not, however, reflect facts that would have led the officers reasonably to believe that he had suicidal proclivities or that he would do violence to himself.

“The facts show, on the contrary, that for a person who had been charged with the serious offenses of burglary and theft here and in Alexandria, he was being most cooperative with the investigating officers, even to the extent of assisting them in carrying the alleged stolen items from his residence to the police car.

“No authority has been cited, nor am I aware of any, which mandated that these officers place handcuffs or leg irons on the accused deceased under the circumstances presented by the evidence. Being arrested and “cuffed” is doubtless a traumatic experience, and the more usual complaint is the abuse of the authority to restrain. There was no evidence that this arrestee was under the influence of intoxicants, or hopped up on drugs, or otherwise not lucid.”

Based on these facts the trial court determined that the police officers were not under a duty to place handcuffs upon the deceased or otherwise restrain the deceased from harming himself since the officers were not dealing with a person of known suicidal tendencies or of a known vicious nature. The trial court further reasoned that the risk of harm encountered by the deceased (that he would intentionally or accidentally shoot himself) was not within the ambit of any duty owed to the deceased by the officers since they had no knowledge of any violent or suicidal tendencies by the deceased. Therefore the trial court found no liability on the part of the defendants.

The issue presented by this appeal is whether the trial court erred in denying liability on the part of the defendants.

In the case of LeBlanc v. State, through Dept. of Corrections, 393 So.2d 125 (La. App. 1st Cir.1980), writ denied 394 So.2d 1235 (La.1980) the court stated:

[1] Under the analysis of Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), four inquiries must all be answered in the affirmative before a plaintiff can recover.
1) Did the act of the defendant play a substantial factor in bringing about harm to the plaintiff, i.e., was it a cause in fact of the harm that occurred?
2) Did the defendant owe a duty to the plaintiff?
3) Was the duty breached?
4) Do the risk and the harm encountered by the plaintiff fall within the scope of protection afforded by the duty which was breached?

In the present case we need not answer the initial three inquiries since the final one must be answered in the negative.

According to the plaintiff, the breach of duty was the failure to prevent the deceased from escaping and doing harm to himself.

A police officer owes a duty to his prisoner to save him from harm. However, this means that the officer must do only what is reasonable under the circumstances, and he is only liable for a certain category of risks to which the prisoner may be subjected. Griffis v. Travelers Insurance Company, 273 So.2d 523 (La.1973); Barlow v. City of New Orleans, 257 La. 91, 241 So.2d 501 (1970).

In the present case there is no evidence in the record to suggest that the plaintiff would escape for the purpose of doing harm to himself. Both officers testified that they had no reason to believe that Johnny Langford would harm himself. No evidence was presented to show that Johnny Langford had ever attempted to harm himself prior to this incident. The deceased’s prior criminal record reveals no propensity to do violence to himself.

Since there was no evidence showing that the deceased had suicidal tendencies or a propensity to harm himself, the risk of harm encountered by the plaintiff (that he would intentionally escape for the purpose of harming himself) does not fall within the scope of the duty owed by the officers to save their prisoner from harm.

For this reason, the judgment of the trial court is affirmed at plaintiffs costs.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Susan M. SLOANE, Plaintiff-Appellant, v. Sidney DAVIS, Jr., et al., Defendant-Appellee.
    No. 83-449.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    William H. Lambert, Lafayette, for plaintiff-appellant.
    Young & Burson, I.J. Burson, Jr., Eunice, for defendant-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

This suit for damages arises out of a collision between an automobile operated by the plaintiff, Susan Sloane, and an automobile owned and operated by the defendant, Sidney Davis, Jr. The accident occurred on January 27, 1979. Sloane filed suit against Davis, his liability insurer, Safeway Insurance Company, and her own uninsured motorist carrier, Travelers Indemnity Company. Prior to trial, Travelers was dismissed from the suit after a settlement was reached with the plaintiff. The matter proceeded to trial against Davis and Safeway. After trial on the merits, the trial court found the defendant negligent and the plaintiff contributorily negligent. Because the accident occurred at a time when contributory negligence completely barred recovery, the trial court dismissed the claim of the plaintiff. The plaintiff appeals.

The sole issue on appeal is the correctness of the trial court’s determination that the plaintiff, Susan Sloane, was contributo-rily negligent. Finding no clear error in the trial court’s conclusion, we affirm.

The accident occurred in Opelousas, Louisiana, at the intersection of Guidry Street and Railroad Avenue. The plaintiff and a passenger, Ellen Davenport, were travel-ling east on Guidry Street. The plaintiff came to a stop at a stop sign regulating traffic approaching the intersection from Guidry Street, and prepared to execute a right turn onto Railroad Avenue. As she entered the intersection to make the turn, she was struck by the defendant’s vehicle. The defendant, proceeding north on Railroad Avenue, was in the process of passing a slower moving vehicle in a no-passing zone.

The plaintiff testified that, after coming to a stop at the intersection, she looked first to the left and then to the right. She stated that upon looking to the right, she saw two vehicles, but that both were in the proper, or northbound, lane of Railroad Avenue. After looking to the left once more, she began to execute the turn. Her passenger, Davenport, alerted her to the fact that a car was approaching in her lane of travel, but it was then too late to avoid the collision. Davenport testified that Miss Sloane’s ear had entered the intersection and was in the process of turning when the defendant pulled into the passing lane.

The defendant testified that the car ahead of him on Railroad Avenue had been stalling for some time before he attempted to pass it. He stated that the car was “jerking” along when he began the passing maneuver. According to Davis, he was in the passing lane and had pulled his car roughly even with the slower moving vehicle when he first saw the Sloane vehicle, which was then coming to a stop at the stop sign on Guidry Street. He stated that he blew his horn and flashed his bright lights in an attempt to prevent the Sloane vehicle from entering the intersection, but that the vehicle nevertheless pulled into the intersection, making the collision unavoidable.

The only other witness to testify concerning the accident was the investigating officer of the Opelousas Police Department, Ronnie Trahan. His testimony established that at the point of the collision, the plaintiffs vehicle had not completed the turn onto Railroad Avenue. The rear wheels of the vehicle were on Guidry Street and had not entered the intersection. Trahan stated that he stepped off the distance of the skid marks left by the defendant’s vehicle, finding them to be a length of twenty-one paces. He also stated that the skid marks were made at a slight angle from near the center line to the point of collision.

LSA-R.S. 32:104 states that no person shall turn a vehicle at an intersection “unless and until such movement can be made with reasonable safety.” A primary rule of safety in the operation of motor vehicles is to observe in the direction in which one is proceeding. One is never allowed to assume that the pathway is clear. Weber v. Phoenix Assurance Company of New York, 273 So.2d 30 (La.1973).

In the instant case, the trial court apparently accepted the version of the facts related by the defendant, at least insofar as he testified that he was already in the passing lane when the plaintiff entered the intersection. The court found that the plaintiff attempted the right turn at a time when it was clearly unsafe to do so, thus finding her contributorily negligent. The factual determination of the trial court with regard to contributory negligence is entitled to great weight, and should not be disturbed on appeal absent clear error. Cambridge Mutual Fire Insurance Company v. State Farm Fire and Casualty Company, 405 So.2d 587 (La.App. 3rd Cir.1981). Our careful review of the record reveals no clear error on the part of the trial court.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.