author: EDWARDS, Judge.

text:
    Lucinda H. BEAUCHAMP, George W. Beauchamp and Henry Louis Beauchamp v. NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY, Fidelity Loan & Mortgage, Inc., George R. Covert, Albert L. Ringgold and Wilmetta Amos Ringgold.
    No. 83-CA-0627.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Nathan E. Wilson, Johnnie A. Jones, Baton Rouge, for plaintiffs-appellants Lucinda H. Beauchamp, George W. Beauchamp, Henry Louis Beauchamp.
    Donald S. Zuber, Baton Rouge, for defendants-appellees Northbrook Excess and Surplus Insurance Company and George R. Covert.
    Charles H. Braud, Jr., Baton Rouge, for defendant-appellee Fidelity Loan and Mortgage, Inc.
    Alex W. Wall, Jr., Baton Rouge, for defendants-appellees Albert L. Ringgold and Wilmetta Amos Ringgold.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

On August 27, 1979, plaintiffs, Lucinda H. Beauchamp, George W. Beauchamp and Henry Louis Beauchamp, sold certain property located in East Baton Rouge Parish to defendants, Albert L. Ringgold and Wil-metta Amos Ringgold, with the sale being recorded on August 29, 1979. The property sold was separate rather than community and was owned in indivisión by Mrs. Beauchamp and her two sons, one of whom, Henry, was married.

In order to finance the purchase, the Ringgolds, also on August 27, 1979, mortgaged the property to be purchased to Fidelity Loan & Mortgage, Inc., with the mortgage being recorded on August 29, 1979.

Mr. Ringgold, on or about August 30, 1979, commenced some minor cleaning and clearing of his new property. Shortly thereafter, it was learned that, because the property sold was found to be somewhat rural, Fidelity Loan & Mortgage would not lend as much to the Ringgolds as had earlier been discussed and contemplated. Unable to get additional financing elsewhere, the Ringgolds had no choice but to resell the property to the Beauchamps. The resale took place September 10, 1979, and was recorded on September 12, 1979. Again, no funds changed hands, the intent of all being to restore the property’s status to that of August 26, 1979.

Sometime prior to September 21, 1979, it was noted that Henry Beauchamp was married to Mary Lee Braxton Beauchamp and that, to make clear that the property resold by the Ringgolds was still separate, an act of correction should be signed by Mary Lee, indicating the separate nature of the property. An act of correction was prepared but never submitted to Mary Lee, despite testimony by her husband that had he presented the act to her, he didn’t “think for one minute that she would have refused to sign it if I had asked her.”

Claiming damages in tort and loss of merchantability due to a cloud on title, plaintiffs brought suit against the Ring-golds, Fidelity Loan & Mortgage, Inc., George R. Covert, the attorney before whom the original sale had been passed, and Northbrook Excess and Surplus Insurance Company, Covert’s insurer.

Following trial, the district judge found that plaintiffs had failed to prove either negligence or malpractice, had failed to prove any damages, and had intentionally, by refusing to permit corrective action, failed to mitigate any damages they did suffer, none having been established. In addition, the district judge noted he did not find any cloud on title, that all parties understood the resale to be an attempt to put all parties in their original positions, and that the property in question was, as a matter of law, separate property. The case was dismissed at plaintiffs’ costs. Specifying various errors, all objecting to the trial court’s basic reasons and adverse decision, plaintiffs appeal. We affirm.

A careful reading of the record and examination of the exhibits convinces us that the plaintiffs were in no way harmed, that there are no title problems, and that even if there were any title problems, such would have been solved long-ago were it not for plaintiffs’ obstinate refusal and apparent desire to litigate. Clearly, this case was beneath the majesty of the law and should not have been brought. Clearly, too, the incisive oral reasons for judgment delivered from the bench were absolutely correct.

For the foregoing reasons, the judgment appealed is affirmed. All costs, both trial and appellate, are to be paid by Lucinda H. Beauchamp, George W. Beauchamp and Henry Louis Beauchamp.

AFFIRMED.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    DALTON ANTHONY CONSTRUCTION COMPANY, INC. v. ACADIAN UTILITIES CO., INC. and Continental Casualty, Inc.
    No. 83 CA 0631.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      David C. Forrester, Baton Rouge, for plaintiff-appellee Dalton Anthony Construction Company, Inc.
    John H. Taylor, Baton Rouge, for defendant-appellant Acadian Utilities Inc.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a default judgment rendered in the Nineteenth Judicial District Court, Parish of East Baton Rouge. The central issue posed by this appeal is whether plaintiff, in obtaining a default judgment awarding money damages for work allegedly done on a construction project, established a prima facie case by competent evidence.

Dalton Anthony Construction Co., Inc. (Dalton, Inc.), plaintiff, is a subcontractor which sued Acadian Utilities Co., Inc. (Aca-dian), a contractor, and Acadian’s surety, Continental Casualty Inc., alleging recovery under contract, either written or oral. Plaintiffs default judgment was confirmed on the basis of the existence of a contract. Defendants brought this appeal.

From the record, it is apparent that Dalton, Inc. submitted some sort of bid to Acadian to perform work on a wastewater treatment facility in the town of Elton, Louisiana. The testimony of Dalton, Inc.’s president, Dalton Anthony, at the confirmation of default indicated that Mr. Anthony signed a “Minority Contractors Utilization Information Sheet” and gave the sheet to Acadian’s superintendent. Mr. Anthony further testified that he did not know what happened to the information sheet once he gave it back to Acadian’s superintendent. Although the amount of $66,040.00 was inserted onto the information sheet in three places following the phrase “estimated amount of contract”, the record is silent as to who inserted that amount onto the sheet or why. It is the contention of Dalton, Inc. that the information sheet is the contract and that the sum of $66,040.00 was the sum contracted for. Copies of cancelled checks entered into the record indicate that Dalton, Inc. was paid in draws totaling $8,608.00 during the course of the project. Dalton, Inc. filed suit to recover the difference between the alleged contract amount and the amount paid in draws. Domiciliary service was made on Acadian’s agent twice, followed by personal service on Acadian’s agent on November 10, 1983. A default was confirmed on February 11, 1983, against Acadian. Acadian brought the instant appeal.

Acadian contends that Dalton, Inc. failed to meet the burden of proof necessary to confirm a judgment by default. We agree.

LSA C.C.P. art. 1702 provides in part: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” Confirmation of a default judgment must be made by evidence sufficient to prove each element of plaintiff’s claim as though each essential allegation had been specifically denied by the defendant. Tucker v. Howes, 413 So.2d 585 (La.App. 1st Cir.1982); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980).

Dalton, Inc. asserted and was awarded recovery on the basis of a contract. However, under the facts of this case there is no proof of a valid contract. As noted by this court in Southern Mosaic Tile, Inc. v. Alessi, 411 So.2d 601, 602 (La.App. 1st Cir.1982):

In the instant case, we are faced with a situation where the parties intended to enter into a construction contract, (footnote omitted). This contract must meet the requisites for an ordinary contract. The four requisites of a valid contract are set out in the Civil Code as capacity of the parties, consent of the parties, a certain object, and a lawful purpose. LSA-C.C. art. 1779. Each particular type of contract, e.g., a construction contract, may have other requisites. If a requisite is missing, there is either no contract at all, or a contract of another type. LSA-C.C. art. 1764; Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980).
In addition, this contract must satisfy the requirements for a construction contract as stated in LSA-C.C. art. 2756, as follows: “To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price.” (Emphasis ours)

In the present situation there is no evidence in the record of a meeting of the minds between the parties as to the ultimate cost of Dalton, Inc.’s work. In fact, the contrary proposition is demonstrated. Dalton, Inc. attempted to. demonstrate the existence of a contract in two ways: First, by the testimony of Dalton Anthony at the confirmation of the default and, second, by the introduction into evidence of the “Minority Contractors Utilization Information Sheet,” which Dalton, Inc. asserted was a written contract.

The testimony of Dalton, Inc.’s witness, Dalton Anthony, relative to the existence vel non of a contract shows that Dalton, Inc. did not enter into any agreement with Acadian relating to a specific amount of money for the job. Mr. Anthony further testified that the “Minority Contractors Utilization Information Sheet” did not have the alleged contract amount of $66,040.00 on it when he signed it and gave it to Acadian’s superintendent. Mr. Anthony also admitted that he did not know what happened to the “information sheet” after he gave it to the superintendent.

Even assuming, arguendo, that this “information sheet” was not hearsay, it certainly does not evidence the required meeting of the minds as to a certain stipulated price. Mr. Anthony further testified that there were admitted ambiguities in the “information sheet” as to whether Dalton, Inc. was supposed to supply materials or not, a fact important in the ultimate determination of a contract price. On the one hand, Dalton, Inc. is claiming under a contract, yet on the other it admits that there was no meeting of the minds as to price and materials. Accordingly, we find that Dalton, Inc. failed to meet its burden of establishing a prima facie case sufficient to confirm a default judgment.

For the foregoing reasons, the default judgment is reversed and vacated, and the ease is remanded to the district court for proceedings consistent with this opinion. Appellee is to bear the costs of this appeal; assessment of all other costs is to await final disposition of the case.

REVERSED AND REMANDED.

      . Hearsay evidence cannot sustain the burden of proving a prima facie case for a confirmation of default. Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980).

      . We have not overlooked the alternative remedy of quantum meruit, as allowed in Southern Mosaic Tile, Inc. v. Allessi, 411 So.2d 601 (La. App. 1st Cir.1982). However, without deciding whether that remedy is or is not legally available in this situation, we note that Dalton, Inc. failed to produce any competent factual evidence as to the fair value of the alleged services rendered.


text:
    James KING v. A-1 AUTO SERVICE.
    No. 83-CA-0633.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      James King, in pro. per.
    William G. Davis, Baker, for defendant-appellee A-l Auto Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

James King, plaintiff in proper person, filed suit in the City Court of Baton Rouge to recover a $45.00 towing fee plus damages and costs for the alleged illegal towing of his 1973 Plymouth Fury III by the defendant, A-l Auto Service. From a judgment dismissing his suit, plaintiff appeals.

James King was scheduled to testify before the State Civil Service Commission, located in the Republic Towers building in Baton Rouge, on behalf of one Presley Hancock on February 14, 1983. The Republic Towers building is owned by Republic Joint Venture, a private association which leases out the building to various businesses and state departments. King drove down early that morning and parked his car in the Republic Towers parking lot in a space reserved for the handicapped. He did not have a handicap license plate or sticker on his car.

The space was clearly marked for handicap parking by a four by four foot yellow- and-black handicap symbol painted on the ground, but there was no sign, either on the ground or at eye level, warning that ears without handicap stickers or license plates would be towed away at the owner’s expense.

A-l Auto Service, under contract with Republic Joint Venture to supervise and control parking in the lot, was called by someone at Republic Towers to come and tow the car away. A-l towed away the ear and reported the towing to the police shortly thereafter.

King discovered that his car was missing after the CSC broke for lunch. He called the police and learned that A-l had towed it away. He recovered his car a couple of hours later by paying the $45.00 towing charge.

On February 25, he filed this suit in City Court seeking a refund of the towing charge and $550.00 for damages to his car allegedly incurred during the towing. The trial judge rendered judgment in favor of the defendant and dismissed the plaintiffs suit at his cost. In his oral reasons for judgment, however, he implied that the towing was legal because King was parked in the space without a handicap license plate.

On appeal King argues first that the towing was illegal under the holding of Navratil v. Smart, 400 So.2d 268 (La.App. 1st Cir.1981), cert. denied, 405 So.2d 320 (La.1981), and second that the court erred in failing to award him damages.

We find nothing in the record to support a damage award and affirm that portion of the trial court’s judgment. However, we find merit to appellant’s first argument and accordingly reverse.

In Navratil, the plaintiff had taken a client out for a nightcap after dinner and parked his car in a lot near the nightclub but owned by a private business. The defendant, Smart, had a contract with the landowner, similar to the one in the instant case, to remove any cars illegally parked on the lot after business hours. Portable signs warning of possible towing of illegally parked cars, normally present on the lot after hours, had not been posted that night. This court held that under those circumstances the towing constituted a self-help remedy which was illegal because the landowner had not adequately warned the public of his desire to restrict the parking on his lot. The landowner and the defendant towing company were held liable in solido for the towing charges.

Though Navratil’s holding is closely tailored to its facts, we think it contains a broader application. While a private landowner conducting business with the public is free to restrict parking on his property as he chooses, those restrictions must be made known to the public by signs, posts, fences or other warning devices. Moreover, he may not avail himself of self-help by towing away cars parked contrary to those restrictions unless he posts a sign or other form of notice warning the public that cars illegally parked are subject to being towed at the car owner’s expense.

In the instant case, though the parking space was clearly reserved for handicap parking, there were no posted signs warning the public that cars without'handicap stickers or license plates were subject to being towed. While we applaud and strongly support Republic Venture’s concern for the handicapped, and have little sympathy for Mr. King, we cannot sanction the use of self-help in this case.

Therefore, under Navratil, A-l is liable for the refund of the $45.00 towing fee, with full rights against Republic Venture, its principal.

Costs are to be divided equally between the parties.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


author: WATKINS, Judge.

text:
    Wanda Laverne COLLINS v. J.C. PENNEY COMPANY, INC. et. al.
    No. 83 CA 0640.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Wanda Laverne Collins.
    Stephen W. Glusman, Baton Rouge, for defendants-appellees J.C. Penney Company, Inc., and Liberty Mutual Insurance Company.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Wanda Laverne Collins brought the present suit to obtain worker’s compensation at the rate of $110.00 per week for the period for which she might be disabled in the future as a result of having lifted a heavy box of china in the course and scope of her employment. She also sought penally and attorney’s fees. Named as defendants were J.C. Penney Company, Inc., Mrs. Collins’ employer, and Liberty Mutual Insurance Company, J.C. Penney’s insurer. The trial court rendered judgment for defendants, dismissing Mrs. Collins’ suit with prejudice. We affirm.

The case was submitted partly on testimony in open court and partly on depositions. Basically, Mrs. Collins testified she had injured her back by lifting a 45 piece box of china while working as an assistant manager at Penney’s, and that she had seen a great number of physicians, but was still in pain. The trial court obviously disbelieved Mrs. Collins’ testimony. The testimony (live and by deposition) of the doctors who examined and/or treated Mrs. Collins indicated that they found no objective evidence of disability that would produce pain of the sort complained of by Mrs. Collins. A person is disabled if he is unable to work without substantial pain. Chiasson v. Lafourche Parish Council, 449 So.2d 110, (La.App. 1st Cir.1984). The great weight of the physicians’ testimony is that Mrs. Collins was able to return to work without pain. The only other testimony we have is that of Mrs. Collins and her family, who testified she was still in pain. We cannot say that the trial court’s evaluation of credibility was clearly wrong or manifestly erroneous, Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Dominque, 365 So.2d 1330 (La.1978), especially as Mrs. Collins’ testimony was evasive and self-contradictory.

Plaintiff further contends that the trial court erred in not granting her a new trial to take the deposition of a physician who had examined her subsequent to trial. A new trial is not available simply because a physician changed his mind or a new medical opinion is sought. Williams v. Liberty Mutual Insurance Co., 327 So.2d 462 (La.App.3d Cir.1976). If this were not true, there would be no end to the granting of new trials. The trial court acted correctly in refusing to grant plaintiff a new trial.

As Mrs. Collins has not established that she is entitled to workers’ compensation benefits, she is not entitled to penalty or attorney's fees.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Alvin LODRIGUE and Mary Lodrigue v. HOUMA-TERREBONNE AIRPORT COMMISSION.
    No. 83 CA 0647.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Edward J. Milligan, Jr., Lafayette, for plaintiffs and appellants, Alvin and Mary Lodrigue.
    Charles Hanemann, Houma, for defendant and appellee Houma-Terrebonne Airport Com’n.
    Huntington B. Downer, Houma, for defendant and appellee, Police Jury.
    Leon A. Aucoin, Metairie, for defendant and appellee, City of Houma.
    Craig W. Marks, Lafayette, for defendant and appellee Intervenor, Home Insurance Co.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiffs-appellants, Alvin and Mary Lo-drigue, appeal from a judgment denying their claims for damages resulting from a one ear accident in which Mrs. Lodrigue was involved on June 3, 1980, in Terre-bonne Parish. Mr. and Mrs. Lodrigue filed suit against the Houma-Terrebonne Airport Commission and its insurer, United States Aircraft Insurance Group, the Terrebonne Parish Police Jury and the City of Houma, alleging negligence and strict liability for the condition of the road which plaintiffs allege caused the accident.

At the conclusion of plaintiffs’ case, a directed verdict was rendered in favor of the Terrebonne Parish Police Jury dismissing it from the suit. Plaintiffs have not assigned this ruling as an assignment of error, and thus, it is not before us in this appeal.

In his written reasons for judgment, the trial judge noted that the lack of clear evidence of the alleged rut, the testimony of the witnesses and the other evidence presented, led him to the conclusion that the accident was caused by excessive speed on the part of Mrs. Lodrigue. The trial judge went on to find Mrs. Lodrigue guilty of contributory negligence and victim fault such as to bar recovery. While we agree with the trial court’s decision, we are of the opinion that the court need not have reached the issues of contributory negligence and victim fault.

The accident in question occurred on Clendening Road, approximately two-tenths of a mile south of where it intersects with Moffitt Road, in Terrebonne Parish. It was established at trial that Clendening Road is a two-way, concrete, undivided highway and that the accident occurred on a clear day during daylight hours. Mrs. Lodrigue testified that she was proceeding down Clendening Road in the direction of Houma, Louisiana, at approximately 25 to 30 miles per hour as she entered a curve in the road. She further testified that as she came out of the curve she found it necessary to steer her vehicle more towards the centerline of the road. As she attempted to execute this maneuver, the right rear wheel of her vehicle left the concrete road surface falling into a six to eight inch rut in the shoulder of the road causing her to lose control of the vehicle. Mrs. Lo-drigue’s vehicle was propelled across Clen-dening Road, eventually coming to rest in a ditch.

In an attempt to prove the existence of the alleged rut, plaintiffs’ introduced several photographs purporting to show the condition of the road shoulder the day after the accident. The photographs were taken by Mr. Lodrigue and Mrs. Lodrigue’s sister the day after the accident. It was brought out in testimony that Mrs. Lodrigue did not accompany her husband and sister to the site. In contrast to this evidence was the testimony of the investigating officer, Mr. Brian Mathies, who arrived at the scene shortly after the accident. Mr. Mathies testified that upon interviewing Mrs. Lo-drigue, she told him that as she came out of the curve her wheel went off the road onto the shoulder at which time she jerked her steering wheel to get back on the road, went across the highway and landed in the ditch. Mr. Mathies further testified that he returned to the scene to investigate the condition of the shoulder but found no ruts where Mrs. Lodrigue said she left the road. He stated that there were ruts further into the curve but where plaintiff left the road there was only a one inch variation between the road and the shoulder.

As noted above, plaintiff testified that she was traveling approximately 25 to 30 miles per hour as she entered the curve. Defendants produced three witnesses to dispute this allegation. These witnesses, all of whom were in the same vehicle, were stopped at the intersection of Moffit and Clendening Roads as Mrs. Lodrigue passed through the intersection. All three witnesses testified that the Lodrigue vehicle was traveling at a much greater speed than the 30 mile per hour posted speed limit.

Under a negligence theory of recovery, plaintiffs’ burden was to show that a hazardous condition existed at the point where Mrs. Lodrigue’s vehicle left the roadway, and that those in charge of the road had actual or constructive knowledge of the condition and failed to correct it within a reasonable time. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). To recover under strict liability, plaintiffs were required to show that the thing (the road shoulder) was defective, that it was in defendants’ custody and that it caused the accident. Loescher v. Parr, 324 So.2d 441 (La.1975). Plaintiffs have simply failed to meet their burden in proving that the road shoulder was in a hazardous or defective condition. It was, therefore, unnecessary for the trial judge to reach the issues of Mrs. Lodrigue’s contributory negligence or victim fault.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring, 283 So.2d 716, 724 (La.1973). We find no abuse in the trial court’s determination that there is no clear evidence of a defect in the shoulder of the road at the location Mrs. Lodrigue testified she left the roadway.

Plaintiffs allege that the trial court erred in refusing to allow their expert to testify at trial. The trial judge, relied on LSA C.C.P. art. 1428 which provides in pertinent part,

“A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, and the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.”

Defendants had propounded interrogatories to plaintiffs on November 3, 1980, seeking- information as to the identity of any expert plaintiffs’ intended to call as a witness. Plaintiffs’ initial response was that they were undecided as to whether an expert would be called. Trial of this matter was scheduled for September 16, 1982. Counsel for defendants stated in argument that they did not receive plaintiffs’ supplemental responses until September 7, 1982, some nine days before trial. Additionally, counsel for defendants argued that plaintiffs’ counsel was uncooperative in defendants’ request to depose the witness prior to trial.

As noted in Coignet v. Deubert, 413 So.2d 253, 256 (La.App. 4th Cir.1982),

The trial judge must be given great discretion in deciding whether to receive or refuse the offered testimony of witnesses and any bias must be in favor of receiving the testimony. In determining whether there was an abuse of that discretion, we considered whether there was a willful or negligent failure to disclose names of witnesses by Coignet, and whether Deubert also failed to comply with the prescribed pre-trial procedure of the Pre-Trial Order to disclose his witnesses to Coignet. Because of the unusual omissions of both attorneys in this case, we find the Trial Judge did not abuse that discretion when he received that testimony.

In ruling on this matter, the trial judge noted that defendants were prejudiced in their discovery efforts by plaintiffs’ failure to seasonably supplement their answers, and further, the trial judge noted the concerns of judicial economy. We are unable, under the circumstances of this case, to say that the trial judge abused his discretion in this matter.

Therefore, for the foregoing reasons, the judgment of the trial court denying the claims of Alvin and Mary Lodrigue, is hereby affirmed. Costs of this appeal are to be borne by appellants.

AFFIRMED.


text:
    Steven SWEETSER v. Carol STREVA.
    No. 83 CA 0664.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      J.P. Morelia, Patterson, for plaintiff.
    Sostenes Ruiz, III, Morgan City, for defendant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Steven Sweetser filed the present action against Carol Streva, seeking the balance allegedly due on a building contract for a home that Sweetser had constructed as general contractor for Streva. Streva reconvened, seeking damages for faulty construction. The trial court rendered judgment in favor of Streva against Sweetser in the sum of $10,529.66, finding that to be the sum by which damages to Streva exceeded the balance due under the building contract. We amend to reduce the award to Streva by the sum of $71.51, the sum both parties agreed should have been credited to Sweetser as a cost overrun, and affirm.

On January 2, 1981, Streva and Sweet-ser, a general contractor, entered into a building contract for the construction of a house at 1716 East Gardener Street, Morgan City, Louisiana, for the sum of $80,-753.00. Plans for the house had been drawn by Sweetser in accordance with photographs and verbal instructions by Streva. Sometime later a written amendment was entered into providing for what would appear to be “extras”, which were to be paid for on a cost overrun basis.

Construction commenced. Streva visited the construction site frequently, usually three times .daily, at morning, noon, and evening. On one of these visits, he noticed the roof was not in keeping with the plans and specifications, and complained to Sweetser, who informed Streva that it was impossible to build the roof in accordance with plans, as the square of the house was too small to so permit. At trial, a licensed architect, James Firmin of Morgan City, testified that it would indeed have been possible to have built the roof as called for in the plans. In any event, at the encounter with Sweetser, Sweetser told Streva that Sweetser had made a mistake for which Sweetser was willing to pay. Construction continued.

When construction was in progress, several other difficulties developed. A brick column was placed in the wrong position, and the difficulty remedied, the main front window was not constructed in accordance with plans, the slab was laid considerably narrower than called for by the plans, and the brick floor was not finished by the subcontractor agreed upon by Sweetser and Streva. Furthermore, after the house was completed, the brick floor immediately turned white, showing that the floor had been improperly finished.

The major controversy of the case turns upon the construction of the roofline. Sweetser contends that the principle of es-toppel applies, as he contends Streva agreed to permit construction to continue after he had discovered that the house had the wrong roofline. Counsel for Sweetser further contends that the trial court erred in accepting Streva’s testimony as true and in refusing to believe that of Sweetser. The question of credibility of the witnesses is one for the trial court, and the trial court’s evaluation of credibility will not be overturned unless that evaluation is clearly or manifestly wrong or erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial court did not believe Sweetser, who first testified that he had no memory of complaints about the roof and later proceeded to testify in great detail about his version of the encounter concerning the roofline. Sweetser’s testimony contained other self-contradictions and was quite evasive. We cannot say the trial court erred in refusing to believe the testimony of Sweetser, whose testimony was unworthy of belief and not supported by that of any other witness.

As we agree with the trial court that Sweetser’s testimony is unworthy of belief, there is no occasion to apply the principle of equitable estoppel to the present building contract as was done in the case of other building contracts in Keating v. Miller, 292 So.2d 759 (La.App. 4th Cir.1974) and Elite Homes, Inc. v. Herrmann, 242 So.2d 614 (La.App. 4th Cir.1970).

The trial court in written reasons, while awarding damages to remedy the roofline, indicates the matter was largely one of aesthetics. While aesthetics play a part, the main fault on the part of Sweetser is that he failed to build the roofline in accordance with the plans that he himself had drawn. He thus was guilty of clear breach of contract.

As to the lesser matters not completed in accordance with plans and specifications, such as the improperly finished floor and the improperly laid slab (being too narrow), these are also breaches of contract, for which Sweetser should be held liable.

Delores Boudreaux, who was permitted to testify to impeach the testimony of Sweetser, testified that Sweetser had done a poor job on her house. While we have some question that this testimony may have gone beyond mere impeachment, we find no prejudice, as Sweetser discredited his version of events by his own testimony, and the trial court founded its written reasons for judgment on Sweetser’s total lack of credibility.

Certain extras were added on a cost plus basis by the amended contract mentioned above. Counsel for Sweetser argues, and counsel for Streva concedes, that the sum of $71.51 should have been credited against the sum awarded. We therefore amend the judgment in favor of Streva to reduce the amount awarded to Streva by the sum of $71.51.

The judgment in favor of Carol Streva and against Steven Sweetser is reduced to the sum of $10,458.15, and as so amended, affirmed, all costs to be borne by Steven Sweetser.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    Louis Vincent GAUDET and Pearl Vicknair Gaudet v. John M. REAUX.
    No. 83 CA 0670.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      John B. Cornish, Baton Rouge, for plaintiffs-appellees Louis Vincent Gaudet and Pearl Vicknair Gaudet.
    Michael O. Hesse, St Prancisville, for defendant-appellant John M. Reaux.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This is a suit for foreclosure by executo-ry process against which defendant obtained a temporary restraining order. Plaintiff then filed a motion to dissolve the temporary restraining order and for damages. The rule for a preliminary injunction and the motion to dissolve were tried simultaneously. The court dissolved the temporary restraining order, denied the preliminary injunction and awarded damages in the amount of $100.00 plus attorney fees. The judgment was signed on March 25, 1983. Defendant filed a petition for appeal on April 25. The court set a suspensive appeal bond of $1200.00 and amended the order to read as follows:

“It is Further Ordered that the money judgment is stayed due to the appeal. The proposed sheriff sale is not stayed since no injunction was issued.” The bond was filed on May 2.

An order dissolving a temporary restraining order is not appealable. Ducote v. Couvillon, 401 So.2d 621 (La.App. 3d Cir.1981).

An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days of the order or judgment. La. C.C.P. art. 3612.

We therefore have before us only the question of damages and attorney fees for the dissolution of the temporary restraining order.

Appellant argues that the $100.00 award of damages based upon the alleged wrongful issuance of the restraining order and the attorney fees was improper because the restraining order was issued by the court on the basis of good faith affidavits.

La.C.C.P. art. 3608, in part, provides: “The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand.”

The word “wrongful” does not necessarily connote bad faith or connivance, but it does import the infringement of some right. The use of the injunctive process is an extreme remedy, and its improper issuance requires the mover to stand the responsibility therefor. Roy v. Union Bank, 347 So.2d 286 (La.App. 3d Cir.1977), writ denied, 350 So.2d 895, 902 (1977). Therefore, whether the appellant sought the temporary restraining order on good faith grounds is irrelevant. We conclude that the issuance of the temporary restraining order was “wrongful” within the context of La.C.C.P. art. 3608 and affirm the $100.00 award of damages.

The $650.00 award of attorney fees is also contested by appellant. However, appellant has not presented the court with any specific legal argument or testimony to contradict the validity of the attorney fees.

La.C.C.P. art. 3608 also provides:

“Attorney fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.” (Emphasis added.)

The temporary restraining order was issued on March 7, 1983, the motion to dissolve the restraining order was filed by appellee on March 15, 1983 and the hearing was held on March 22, 1983. Thus, the hearing on the matter was held after the expiration of the temporary restraining order. Where the temporary restraining order has expired by operation of law ten days after issuance before a hearing is had to determine if it should be dissolved, the issue is moot and attorney fees have generally been denied. Copellar v. Yount, 361 So.2d 971 (La.App. 3d Cir.), writ denied 363 So.2d 534 (La.1978); Lighthouse Life Insurance Company, Inc. v. Rich, 343 So.2d 444 (La.App. 3d Cir.1977).

For the reasons assigned, the judgment appealed from is amended to delete the award of attorney fees and is affirmed as amended. All costs of this appeal are assessed against the appellant.

AMENDED AND AS AMENDED AFFIRMED.


author: CARTER, Judge. PONDER, Judge,

text:
    Deborah WOODFIELD v. E. Pat DUGAS, et ux.
    No. 83 CA 0671.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Jack N. Rogers, Baton Rouge, for plaintiff-appellant Deborah Woodfield.
    Richard Creed, Jr., Baton Rouge, for defendants-appellees E. Pat Dugas and Sallie H. Dugas.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This is a suit for damages by Deborah Woodfield against E. Pat and Sallie H. Du-gas.

On May 29, 1981, at approximately 12:30 a.m., Mrs. Dugas was driving the family van home when she lost control of the vehicle and crashed into plaintiff’s townhouse.

As a result of this accident, plaintiff filed suit for property damage to the townhouse, damage to the contents, mental anguish, interruption of education, and other miscellaneous damages and expenses.

The trial court found that Mrs. Dugas was negligent in the operation of the van, that Mrs. Dugas was on a community errand at the time of the accident, and that Mr. & Mrs. Dugas were liable for the damages sustained by plaintiff. Accordingly, the trial judge awarded plaintiff $4,152.73 for loss of contents and $5,000.00 for mental anguish.

Plaintiff appeals this judgment alleging that she was not adequately compensated for her losses.

DAMAGE TO CONTENTS

Plaintiff contends that the trial judge did not adequately compensate her for the contents of her home which were damaged as a result of defendants’ negligence.

In support of this contention, plaintiff relies on Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981). Plaintiff contends that the Louisiana Supreme Court held in Emerson that a proper measure of damage is “the actual or intrinsic value of the property to the owner.”

Plaintiffs reliance on Emerson, however, is clearly misplaced. The loss suffered by the plaintiff in Emerson had no market value whereas the losses suffered by the plaintiff in the instant ease have ascertainable market values.

Plaintiff further contends that she proved those damages by her testimony and by photographic exhibits of the damaged items.

When property damaged or destroyed has an ascertainable market value, the courts consider several factors. This Court in Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir.1969), writ denied 366 So.2d 575 (La.1979) catalogued some factors including the extent of the damage; the use to which the property may be put; the extent of economic loss in terms of (market) value and income; and the cost and practicability of restoration.

A plaintiff bears the burden of establishing each and every element of damage claimed. Reid v. Allstate Ins. Co., 407 So.2d 34 (La.App. 3rd Cir.1981); Cloney v. Travelers Insurance Company, 253 So.2d 83 (La.App. 1st Cir.1971), writs refused, 259 La. 871, 872, 253 So.2d 212 (La.1971).

Plaintiff’s only evidence to substantiate her losses consists of her own testimony, an inventory of the damaged property together with the approximate values thereof, and photographs of the contents of her home. The inventory, however, was prepared by plaintiff and reflected hearsay evidence as to the value of the goods. Plaintiff called neither an appraiser nor witnesses to verify the information she supplied. Furthermore, plaintiff’s photographs did not depict individual damaged pieces of furniture, but merely illustrated the disarray in which her belongings were found following the accident.

Although the trial judge allowed recovery for numerous items, many of which had market values of less than twenty dollars, he properly refused to allow recovery for the more substantial items of damage absent hard evidence. Plaintiff simply failed to carry the burden of proving the market values of her losses beyond those allowed by the trial court. A thorough review of the record convinces us that the trial judge was not manifestly erroneous in this award. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

MENTAL ANGUISH

Plaintiff contends that the trial judge was manifestly erroneous in awarding only $5,000.00 and that a higher award was justified in view of the testimony of Dr. Jensen (a clinical psychologist) and Dr. Manson (a psychiatrist).

On May 29, 1981, plaintiff phoned Dr. Susanne M. Jensen, a practicing clinical psychologist, because of emotional problems resulting from the accident and damage to her home and contents. Dr. Jensen saw plaintiff on June 1, 1981. Dr. Jensen testified she had previously consulted with plaintiff on other matters involving coping with a divorce between plaintiff’s parents and plaintiff’s own divorce. Plaintiff was referred to Dr. Manson, a psychiatrist, so a prescription could be obtained for medication.

Dr. Manson saw plaintiff on June 16, June 24, and July 1, 1981. It was Dr. Manson’s opinion that plaintiff responded well to anti-depressants and had no further need for medication after July 30, 1981.

The trial judge found that plaintiff suffered a real mental injury which was attributable to the accident. The court accordingly awarded the sum of $5,000.00 as adequate compensation for plaintiff’s mental anguish. A trial judge is vested with much discretion in making quantum awards, and absent a finding of manifest error, such decisions should not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot say that the trial judge was manifestly erroneous in his award of $5,000.00 to plaintiff for mental anguish.

INTERRUPTION OF EDUCATION

At the time of the accident, plaintiff was working on a Ph.D. in clinical psychology. She claims that the accident caused her to miss attending summer school in 1981, therefore, she has been delayed in entering the job market. Plaintiff contends that she has suffered economic loss in that she has been set back a year in obtaining her Ph.D.

The trial court found that plaintiff did not prove loss of future wages due to the accident and that such damages were too speculative. We agree. It is plaintiffs burden to prove with legal certainty every item of damage claimed. Freeman v. G.T.S. Corp., 363 So.2d 1247 (La.App. 4th Cir.1978). No proof was offered that plaintiff would have had immediate employment upon graduation.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs to be assessed against plaintiff-appellant Deborah Woodfield.

AFFIRMED.

PONDER, J., dissents in part and assigns reasons.

PONDER, Judge,

dissenting.

I respectfully dissent.

Plaintiff testified that she was given the figures of $1200.00 for the oak hutch and $1320.00 for the reupholstering by Manes, the insurer’s adjuster, who did not deny this when on the stand. I would therefore amend the judgment by increasing it by the figure of $2520.00.

      . Plaintiff apparently settled her claim for damage to her house because that issue was not presented to the trial court.

      . Although we will not address each of plaintiff's assignments of error specifically, the opinion adequately discusses all of plaintiff’s allegations of error.


text:
    Roxiann Martin DUPUY, Homer G. Martin, IV and Joyce Ballard Smith, as Natural Tutrix of Sharon R. Martin v. Roger Joseph GONDAY and Russell David Williams and Maryland Casualty Company.
    No. 83 CA 0678.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Dennis A. Pennington, Baton Rouge, for plaintiffs-appellants.
    John S. White, Jr., Baton Rouge, for defendant-appellee Maryland Cas. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Homer G. Martin III was shot in an altercation following a motor vehicle accident and subsequently died. The present wrongful death action was brought by the beneficiaries under LSA-C.C. art. 2315 against those responsible for the shooting, and also against the Maryland Casualty Company, business automobile insurer of Martin, under the uninsured motorist endorsement of the policy issued to AAA Air Conditioning Service of Baton Rouge, Inc., which policy insured Martin. Maryland moved for summary judgment, contending the fatal shooting was not covered under the uninsured motorist endorsement of the policy. The trial court granted summary judgment. We affirm.

The events surrounding the fatal shooting are described in paragraphs 2 and 3 of plaintiffs’ original petition, which read as follows:

“2.
On or about the 2nd day of November, 1981, defendants were involved in an automobile accident with plaintiffs’ decedent, Homer G. Martin, III, at the intersection of Choctaw Drive and North Foster Drive in the City of Baton Rouge, State of Louisiana, wherein defendant Gonday cut off Homer G. Martin, III in an intersection.
3.
Immediately subsequent to the accident aforesaid, defendants jointly, without cause, and with malicious intent, engaged plaintiffs’ decedent in an argument and attempted to run plaintiffs’ decedent off the road. Plaintiffs’ decedent pulled his vehicle into a parking lot at 4215 Choctaw Drive, wherein defendants, Roger Joseph Gonday and Russell David Williams, proceeded to either individually or collectively fire a shotgun at plaintiffs’ decedent, mortally injuring plaintiffs’ decedent. Both said defendants actively participated in detaining and causing plaintiffs’ injuries.”

The paragraph of the uninsured motorist endorsement to Maryland’s business auto insurance policy that is pertinent to the present case is paragraph B.I., which reads as follows:

“1. We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle. The damages must result from bodily injury sustained by the insured caused by an accident. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the uninsured motor vehicle.”

Summary judgments are not favored and any doubt will be resolved against the granting of summary judgment. Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981); Jewell v. Thompson, 386 So.2d 689 (La.App. 3d Cir.1980), writ denied 393 So.2d 746 (1980). However, in the present case, undisputed facts that (1) a collision occurred between Martin's automobile and another, (2) that the vehicles later stopped in a parking lot, and (3) an altercation ensued after the vehicles had stopped, in which Martin was mortally wounded, lead to the inevitable conclusion that summary judgment was proper.

In Tobin v. Williams, 396 So.2d 562 (La.App. 3d Cir.1981), the following two-fold test was applied to determine whether or not an accident arose out of the “ownership, maintenance, or use, including loading and unloading” of the insured vehicle:

“ ‘(1) Was the vehicle being used at the time of the accident, and (2) Was the use thereof directly connected with or a cause of the ensuing accident.’ ”

In the present case, both parts of the test must be answered in the negative. Gon-day’s vehicle had ceased to be used at the time of the alleged gun shot, and the use of Gonday’s vehicle was neither directly connected with nor a cause of the fatal shooting. An earlier six-part test employed in Mangum v. Weigel, 393 So.2d 871 (La.App. 4th Cir.1981), would similarly lead to the conclusion of absence of coverage in the present case, as the test would require that the chain of events resulting in the alleged accident originate in the use of the automobile and thereafter be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle, and also that the accident must be associated with the use of the vehicle as contemplated by the contracting parties. Obviously, neither was the case with regard to the fatal shooting sued upon. The uninsured motorist endorsement was thus without application to the present facts.

It is true that the present endorsement uses the phrase “resulting from”, rather than “arising out of” as found in Tobin, supra, and Mangum, supra. However, the difference is one of style and not one of substance as the present policy used “simplified” or non-legal language throughout. The change in language did not effect a change in coverage.

It is further contended by Maryland that the fatal shooting was not “caused by an accident”, in the language of paragraph B.l. of Maryland’s uninsured motorist endorsement. Because of the result we have reached, we find it unnecessary to pass upon the merit of this contention.

The judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


text:
    Brenda Marie Brignac TULLIER v. Benjamin J. TULLIER, Jr.
    No. 83 CA 0679.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      William D. Grimley, Baton Rouge, for plaintiff-appellee Brenda Marie Brignac Tullier.
    Steve M. Marks, Baton Rouge, for defendant-appellant Benjamin J. Tullier, Jr.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

This is a suit for partition of community property. Defendant appealed from a finding that three tracts of land were community property. Plaintiff answered the appeal complaining of the finding that the community was indebted for the value of the property and for some improvements.

The issues are: (1) whether the legislation eliminating the “double declaration” requirement should be applied retroactively; (2) whether the tracts of land in question belong to the community or are the separate property of the defendant; (3) whether parol evidence is admissible to prove the status of the property; and (4) whether defendant is entitled to reimbursement, if the property is community, of the purchase price and the cost of improvements.

We reverse and render.

After plaintiff and defendant were divorced in 1980, plaintiff filed suit for judicial partition of the community of ac-quets and gains. Three tracts of land, acquired by transfer from defendant’s mother to defendant, were claimed as separate property by defendant and as community property by plaintiff. The acts transferring title to the property were in the form of sales and recited cash consideration totalling $14,899.00. These acts named only the defendant as vendee, but the acts did not contain the “double declaration” that the property was acquired with the separate funds of the husband and was obtained for his separate estate.

The trial court ruled that the double declaration requirement was a rule of classification of property.

C.C. art. 2340 was amended by Acts 1979, No. 709, effective January 1, 1980, to read as follows:

“Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.”

Wood v. Wood, 424 So.2d 1143 (La.App. 1st Cir.1982) declared the law to be retroactive and rejected the contention that the double declaration was a rule of classification of property.

Plaintiff argues that because the acts of sale were in authentic form, defendant cannot introduce parol evidence to contradict their terms. We do not agree. The parol evidence rule does not apply when the writing is collateral to the issue involved and the action is not based on the writing, as is the case here. Wampler v. Wampler, 239 La. 315, 118 So.2d 423 (La.1960); Wood v. Wood, supra; Broadway v. Broadway, 417 So.2d 1272 (La.App. 1st Cir.1982), writ denied, 422 So.2d 162 (La.1982).

The party asserting the separate nature of property acquired during the marriage has the burden of overcoming a strong presumption in favor of the community. Curtis v. Curtis, 403 So.2d 56 (La.1981). The jurisprudence has varyingly articulated the requisite standard of proof; these include: (1) “conclusive”, R.D.M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820 (La.1970); (2) “clear and convincing”, Cox v. Cox, 398 So.2d 1171 (La.App. 2d Cir.1981); (3) “clear and positive”, Lenard v. Lenard, 386 So.2d 1043 (La.App. 4th Cir.1980); and (4) “clear strict and legally certain”, Prince v. Hopson, 230 La. 575, 89 So.2d 128 (La.1956).

The deeds recited that defendant was “married but once and then to Brenda Marie Brignac, with whom he is now living.” Although cash consideration was recited in the acts, both defendant and his mother, the vendor, testified that no cash was exchanged between them, that the transfer was intended as a repayment for defendant’s rights in the succession of defendant’s father. Defendant had been the owner of U.S. bonds set aside for his future education worth $14,898.80 and he gave this amount to his mother to enable her to compromise adverse succession claims. She transferred the property in question to defendant to repay him for the bonds. She did not have the property appraised prior to the transfer; the amounts put on each act as cash consideration were calculated to add up to a sum roughly equivalent to the amount of the defendant’s bond proceeds. Plaintiff and defendant were living together at the time the property was transferred from defendant’s mother. They moved into a residence on one of the lots and remained there until their physical separation.

Plaintiff had at various times made statements that cast doubt upon the community’s ability to pay the recited consideration.

We conclude that defendant has proved the property to be his separate property under LSA-C.C. art. 2341.

The trial court also awarded defendant the sums of $14,889.00 and $3,244.11, based on its conclusion that although the property was community, defendant had expended separate funds to acquire it and to add improvements to it. Because we have determined that the property belongs to defendant’s separate estate, we must also reverse these reimbursement awards.

For the foregoing reasons, the judgment of the trial court is reversed. There is now judgment in favor of the defendant and against the plaintiff declaring the following to be defendant’s separate property:

One certain lot or parcel of ground, together with all the rights, ways, privileges and servitudes thereto attached or in anywise appertaining, situated in the City of Baton Rouge, Parish of East Baton Rouge, Louisiana, in that certain subdivision known as EAST DAYTON and being designated on a map thereof prepared by A.G. Mundinger, C.E. and Surveyor, dated October 28, 1946, of record as Original 69, Bundle 1957 in map book 12, folio 27, in the office of the Clerk and Recorder of this parish as LOT NUMBER ONE (1), EAST DAYTON, said lot fronting Seventy (70) feet front on the south side of Prescott Road by a depth between parallel lines of One Hundred Fifty-five (155) feet, being the same property first acquired by present vendor as her separate property from John G. Bourke, as per act of record dated February 21, 1957, recorded as Original 93, Bundle 3898 in the records of the Clerk and Recorder of this Parish and State and then in that Judgment of Possession filed in the “Succession of Benjamin J. Tullier, Sr.”, Probate Number 20,018 on the docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, on the 28th day of October, 1970.
Two (2) certain lots or parcels of ground, together with improvements thereon located in that subdivision of the City of Baton Rouge, Louisiana known as SUBURB ISTROUMA, and designated according to the official map of said subdivision as LOTS ONE (1) and TWO (2) of SQUARE 209, each lot measuring Forty feet (40) front on Alliquippa Street by a depth of One Hundred (100) feet, and being the same property first acquired by present vendor as her separate property from Mrs. Mary Ellen McTopy Burns, as per act of record dated July 9, 1958 and recorded in the records of the Clerk and Recorder of this Parish and State and then in that Judgment of Possession filed in the “Succession of Benjamin J. Tullier, Sr.”, Probate Number 20,-018 on the docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, on the 28th day of October, 1970.
Two (2) certain lots of ground in that part of the City of Baton Rouge, Louisiana, known as SUBURB ISTROUMA, and designated according to the official plan thereof made by R. Swart, C.E., May 1, 1927, of record in Plan Book 7, Pages 48 and 49 of the Conveyance Records, as LOT NUMBERS TWENTY-THREE (23) and TWENTY-FOUR (24) of SQUARE NUMBER TWO HUNDRED NINE (209), each fronting Forty (40) feet on the westerly side of Geróni-mo Street, with a depth between parallel 'lines of One Hundred (100) feet, Lot No. 24 being at the corner of Mohican Street, and being the same property first acquired by present vendor as her separate property from Robert A. Hart, II, et al., as per act of record dated December 9, 1959, recorded as Book 1476, page 66, in the records of the Clerk and Recorder of this Parish and State and then in that Judgment of Possession filed in the “Succession of Benjamin J. Tullier, Sr.”, Probate Number 20,018, on the docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, on the 28th day of October, 1970.

The costs are assessed to the plaintiff.

REVERSED AND RENDERED.

      . The "double declaration” rule created a conclusive presumption that property purchased by a husband without declarations in the act that the property was being purchased with the husband's separate funds and for his separate estate was community property. Phillips v. Nereaux, 357 So.2d 813 (La.App. 1st Cir.1978), reh. denied, 361 So.2d 228.
      The courts created this rule by interpretation of the matrimonial regime law prior to its 1978 and 1979 repeal and reenactment.

      . LSA-C.C. art. 2341 provides:
      "The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime."

      . All sums were actually paid by defendant’s mother, with the exception of $336.60. In any case, the sums were all expended after the date of final judgment of divorce between the parties.


author: SAVOIE, Judge.

text:
    William L. BRUMFIELD v. Noel A. BRUMFIELD.
    No. 83 CA 0690.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Steve M. Marks, Baton Rouge, for plaintiff-appellant William L. Brumfield.
    Warren D. Ponder, Baton Rouge, for defendant-appellee Noel A. Brumfield.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff, William Brumfield, appeals the trial court’s judgment dismissing his suit to recover a real estate commission or finder’s fee against defendant, Noel Brumfield, his brother.

In the late fall of 1981, defendant was seeking a buyer for about 700 acres of land on which he held an option to purchase. This option expired by its terms on January 15, 1982. Defendant told plaintiff that if he could produce a buyer who would pay $8,000.00 per acre for this land, defendant would pay plaintiff a 10% commission. Plaintiff requested a listing, but defendant refused, saying that if plaintiff found a buyer, they would both be rich. There is testimony that later, defendant may have lowered the $8,000.00 per acre figure to $6,000.00 per acre. There were no written agreements.

Plaintiff, who was a used car salesman and a licensed real estate salesman not actively engaged in the real estate business, did indirectly locate a prospect who eventually purchased the property for less than $6,000.00 per acre. Defendant refused to pay the commission.

Defendant argues that plaintiff is legally prohibited by La.R.S. 37:1446 from accepting any fee or commission for any act performed as a real estate salesman except through his sponsoring broker, Mrs. Brum-field, his mother. Mrs. Brumfield did not have a listing of the property with defendant and was in no way connected with the transaction.

Plaintiff argues that La.R.S. 37:1446 is not applicable to him since he is not a full-time real estate salesman, but rather is a car salesman acting as a real estate salesman in this one isolated incident.

ACTION OF TRIAL COURT

After the presentation of plaintiffs case, defendant moved for a dismissal of the action pursuant to La.C.C.P. art. 1810, asserting that plaintiff had failed to show a legal right to the relief sought. The trial court reserved its ruling on the motion and referred it to the merits so that the record could be completed since the case was virtually tried. At the close of the trial, the court took the matter under advisement, allowing both parties to submit briefs. Ultimately, the trial judge granted defendant’s motion and dismissed the suit. Plaintiff appeals that judgment.

ASSIGNMENT OF ERROR

Plaintiff asserts that the trial court erred in disposing of plaintiff’s clearly proven contract claim on the basis of La.R.S. 37:1446.

Louisiana real estate law is set forth in La.R.S. 37:1430, et seq. Several of the statutes are pertinent to this case. First, La.R.S. 37:1431(7)(a)-(h) defines the regulated activities and the term “real estate salesman.” La.R.S. 37:1431(7)(f) states that one who assists or directs in the procuring of prospects or the negotiation or closing of any transaction, other than mortgage financing, which results or is calculated to result in the sale, exchange, leasing, or renting of any real estate, other than a provider of information, ideas, and materials to guide homeowners in the sale of their own property, is engaged in the business of real estate salesman. La.R.S. 37:1436 requires that anyone engaging in the profession of real estate salesman must be licensed as such unless exempt. La.R.S. 37:1438 provides for certain exemptions, none of which apply to plaintiff.

Also pertinent are the following additional provisions of the Louisiana real estate law.

La.R.S. 37:1436, second paragraph, provides:

“Any person who, directly or indirectly for another, with the intention or upon the promise of receiving any valuable consideration, offers, attempts or agrees to perform, or performs any single act described herein, whether as a part of a transaction, or as an entire transaction, shall be deemed a broker or salesman within the meaning of this Chapter. The commission of a single such act by a person required to be licensed under this Chapter and not so licensed shall constitute a violation of the provisions of this Chapter.” (Emphasis added).

La.R.S. 37:1445 provides as follows:

“No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this Chapter, to other licensed brokers or licensed salesmen unless such person was duly licensed under this Chapter as a broker or salesman prior to the time of offering to perform any such act or service or procuring any promise to contract for the payment of compensation for any such contemplated act or service.”

Finally, La.R.S. 37:1446 provides:

“Associate brokers or salesmen shall not accept a commission or valuable consideration for the performance of any act herein specified from any person, except their sponsoring broker.”

By agreeing to seek a prospective purchaser and actively pursuing the transaction to a successful conclusion, plaintiff was clearly engaged in the business of real estate salesman under La.R.S. 37:1436. Further, this activity constituted a single act as described in La.R.S. 37:1436. Plaintiff cannot recover any fee or commission for such activity except through his sponsoring broker, Mrs. Brumfield, because he was a licensed salesman at the time. (La.R.S. 37:1446).

For a brokerage contract to be valid, it must be made with a broker or by a salesman representing a disclosed broker. It is not sufficient if a contract is made with a salesman or a salesman representing an undisclosed broker. A salesman cannot transfer his (non-existent) right to a broker for enforcement. Walker v. Meyer, 167 La. 218, 119 So. 26 (1928). A real estate salesman is forbidden by statute to recover any commission except from his employer. Walker v. Meyer, supra; and Cook v. Matherne, 432 So.2d 1039 (La.App. 1st Cir.1983).

Further, La.R.S. 37:1445 prohibits an unlicensed person from recovering any compensation whatsoever for activity which only a legally licensed salesman may perform. This provision must be construed with La.R.S. 37:1436 which provides that any party performing even a single act for which a license is required is deemed a salesman or broker.

The law clearly prohibits a licensed salesman from recovering a commission except through his broker. It also clearly prohibits an unlicensed person through legal proceedings from obtaining a fee or commission for an action that requires a real estate salesman’s license. Thus, there is no merit to plaintiff’s contention that the real estate law does not apply to him because he was not a full-time real estate salesman.

Finally, plaintiff invokes principles of equity and unjust enrichment. The court finds such principles inapplicable in the face of a clear statutory prohibition such as pertains herein.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are to be assessed against plaintiff, William L. Brumfield.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Joyce SIMMS and James Simms v. BATON ROUGE COCA-COLA BOTTLING CO., LTD.
    No. 83 CA 0691.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Granted Sept. 14, 1984.
    Sumpter B. Davis, III, Baton Rouge, for plaintiffs-appellees Joyce Simms and James Simms.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellant Baton Rouge Coca-Cola Bottling Co., Ltd.

      Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Joyce Simms and her husband, James Simms, sued the Baton Rouge Coca-Cola Bottling Co., Ltd. (defendant) in both tort and redhibition to recover damages they allegedly incurred when Joyce Simms drank a contaminated Coca-Cola.

They allege that on Saturday, September 25, 1982, Joyce Simms (plaintiff) purchased two bottles of Coca-Cola from a Baton Rouge convenience store. After taking one or two swallows of her drink, plaintiff became aware of a “bitter” taste and a “grainy” substance in her mouth. She immediately became nauseous and ill.

Plaintiff was immediately taken by her son, Jimmy, to the Baton Rouge General Hospital emergency room, where she vomited two or three more times and had her stomach pumped. She was then discharged and returned home. Other than an aversion to Coca-Cola, she suffered no further symptoms or lasting effects from the incident and did not miss any meals or work.

Plaintiff alleges that “[t]he defendant is the manufacturer, bottler and distributor of the Coca-Cola product partially consumed by petitioner, JOYCE SIMMS.” In its answer, defendant denied this allegation but did admit that “prior to and as of September 25, 1982, said respondent did bottle and distribute and sell to retailers and others for sale at retail, in the Baton Rouge area, a bottled drink known as Coca-Cola.”

After trial, the trial court rendered a judgment in plaintiffs favor and awarded her $1,900.00. James Simms was awarded $96.50 for hospital expenses. Defendant was also east for attorney fees in the amount of $1,000.00 and all costs of the proceedings.

Defendant has appealed suspensively and raises four assignments of error, only the first of which will be considered by this court, for it is dispositive of the case. Assignment of error number 1 questions whether plaintiff carried her burden of proof, i.e., whether she proved that defendant bottled the particular Coca-Cola involved in this case. Our review of the record indicates that she' did not.

Our examination of the record reveals no evidence tying defendant to this Coca-Cola as its manufacturer or bottler. Although plaintiff alleged that defendant was the bottler, defendant flatly denied this fact in its answer, trial memoranda, and arguments in brief. No proof was elicited by plaintiff to prove the fact that defendant was the bottler and/or manufacturer.

We rely upon Harrison v. Gulf South Beverages, Inc., 438 So.2d 261 (La.App. 4th Cir.1983), writ denied, 443 So.2d 582 (La.1983), and Blount v. Gulf South Beverages, Inc., 428 So.2d 885 (La.App. 1st Cir.1983), which held that a plaintiff must prove that the defendant did manufacture and/or bottle the beverage which caused the damage. It is elemental in a suit for damages that the plaintiff must show that the party from whom the damages are claimed is the party liable for the harm.

In Blount, 428 So.2d at 886, the offending beverage was not contaminated but exploded, injuring the unsuspecting store clerk. We held that where the defendant denied the paragraphs alleging that it bottled the beverage and the plaintiff offered no evidence at trial to prove who the manufacturer of the bottle was, the mere statement by the plaintiff that she was injured by a “Pepsi” bottle was insufficient to cast Gulf South Beverages, Inc., in judgment. Likewise, in Harrison, 438 So.2d at 262, the Fourth Circuit held that an individual’s consumption of a contaminated bottled beverage from its original container established a prima facie case for the assessment of damages against the manufacturer of the beverage. But the court went on to emphasize that the first requirement of proof in a suit where plaintiff seeks such damages is to show that the beverage was manufactured or bottled by the defendant. Finding that the plaintiff failed in this burden, the Harrison court dismissed plaintiff's claim. The Harrison case was distinguished in the Fourth Circuit’s opinion in Stewart v. Barq’s Beverages, Inc., 442 So.2d 799 (La.App. 4th Cir.1983). Whereas no evidence was presented in Harrison other than the sworn testimony of the plaintiff and a witness, the plaintiff in Stewart introduced the actual bottle containing the beverage as an exhibit at trial. The court found that the fact that the bottle had the “Barq’s” label on it was sufficient to establish plaintiff’s prima fa-cie case against Barq’s Beverages, Inc., 442 So.2d at 800.

Our facts present a situation more simi: lar to that in Harrison and Blount than Stewart, and we therefore distinguish Stewart. Although plaintiff produced a bottle bearing the name “Coca-Cola,” she did not name Coca-Cola, Inc., or any comparable entity as a defendant. Instead, she limited her suit to the Baton Rouge Coca-Cola Bottling Co., Ltd., and offered no proof that it actually bottled this particular beverage. In that regard, we find this case indistinguishable from Harrison, Blount, and Paul v. Hardware Mutual Insurance Co., 254 So.2d 690 (La.App. 3rd Cir.1971). We specifically note that the only identifying mark other than “Coca-Cola” on the bottle in evidence here is “Paducah, Ky.”

Finding no proof in the record that defendant manufactured and/or bottled the Coca-Cola purchased by plaintiff, we reverse the judgment of the trial court. Plaintiffs’ suit is dismissed at their costs.

REVERSED AND RENDERED.

      . In the text of that opinion, the Harrison case is referred to as “Mayberry v. Gulf South Beverages, Inc."


author: CARTER, Judge:

text:
    Marie Bokenfohr KEARNS v. HARTFORD FIRE INSURANCE COMPANY, Sidney H. Warren, Jr., M.D. and Saul F. Landry, Jr., M.D.
    No. 83 CA 0704.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      R. Ray Orrill, Jr., Orrill & Avery, New Orleans, for plaintiff and appellant.
    Edward J. Rice, Jr., Adams & Reese, New Orleans, for defendants and appellees.
    Before LOTTINGER, PONDER and CARTER, JJ.
   CARTER, Judge:

Plaintiff, Marie Bokenfohr Kearns, brings this action for medical malpractice against Sidney H. Warren, Jr., M.D. and Saul F. Landry, Jr., M.D., two internists, and their malpractice insurer, Hartford Fire Insurance Company.

Plaintiff, at the time of the incident which gave rise to this action, was 84 years old. On April 26, 1976, plaintiff fell and sustained a head injury. Approximately three days later, on April 29, plaintiff went to Dr. Warren’s office with complaints of headaches, vomiting, abrasions and swelling on the left side of her face. At the time of Dr. Warren’s examination, plaintiff exhibited no neurological symptoms and skull x-rays were negative. Plaintiff was then sent home.

On the way home from Dr. Warren’s office, plaintiff began to speak incoherently and appeared confused. Upon learning of this development, Dr. Warren admitted plaintiff to Terrebonne General Hospital for observation at approximately 10:00 p.m. on April 29, 1976.

The following day plaintiff had spells of disorientation, and by May 1, 1976, she was semi-comatose.

A brain scan was performed which showed decreased blood flow through the left carotid artery. The defendants apparently diagnosed plaintiff’s malady as stroke.

On May 2, 1976, a general surgeon was consulted, and he diagnosed plaintiff’s condition as a cerebral contusion. The surgeon recommended an arteriogram and continued conservative treatment.

On the following day, plaintiff was transferred to Ochsner Foundation Hospital where a CAT scan was performed, and a subdural hematoma was diagnosed and treated.

Plaintiff subsequently filed suit alleging that the misdiagnosis and resulting delay in proper treatment constituted malpractice on the part of the defendants.

The trial court found that although defendants may have misdiagnosed plaintiff’s condition, they exercised a standard of care ordinarily expected of a physician practicing in that particular specialty. Accordingly, plaintiff’s suit was dismissed. From this adverse judgment, plaintiff appeals.

Plaintiff assigns the following specifications of error:

(1) The trial court erred in denying plaintiff a trial by jury;
(2) The trial court erred in finding that defendants did not fall below the applicable standard of care; and
(3) The trial court erred in not awarding damages.

Trial by Jury

Plaintiff contends that the trial court was in error in denying plaintiff’s motion for trial by jury. In plaintiffs original petition, plaintiff prayed for jury trial. When the trial began, plaintiff was informed by the judge that the matter would not be tried by a jury because plaintiffs counsel had failed to request the issuance of a venire facias compelling the attendance of a jury venire. Plaintiff then requested a continuance to permit the impaneling of a jury, which was denied by the trial court.

There are three distinct steps as requisites in the perfection of a jury trial. First, demand for a jury trial must be made not later than ten days after service of the last pleading directed to such issue. LSA-C.C.P. art. 1732. Second, a bond must be posted to insure the cost thereof. LSA-R.S. 13:3050 (repealed by Acts of 1983, No. 534, § 11). Third, the motion requesting a venire facias must be made in sufficient time in advance of the date set for trial so that administrative procedures can be performed in an orderly and routine manner. The law is silent as to specific delays for accomplishing steps two and three above. Further, these requirements of necessity must occur in the order mentioned. Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir.1976).

Clearly, plaintiff did not comply with the legal requirements for a jury trial. This assignment is without merit.

Standard of Care

Plaintiff contends that the defendants’ conduct in caring for her fell below the applicable standard of care and that their actions constituted negligence.

The trial judge, in his written reasons for judgment, succinctly set forth the applicable law as follows:

“Under Louisiana Revised Statute 9:2794, which provides a recovery for instances of malpractice, the Plaintiff is required to show that a practitioner of a particular specialty of medicine when dealing with an issue peculiar to that specialty failed to exercise the degree of care ordinarily practiced by physicians within the involved specialty. The Defendants in the instant case practiced in the area of Internal Medicine. The issue therefore before the Court is whether the acts or omissions on the part of the Defendants was such as to constitute care less than that which was ordinarily practiced by internists in 1976. While the Statute does away with the so called ‘locality rule’ as applied to medical specialists, the Courts have rightly taken into consideration local conditions and facilities available in a particular geographical area as having a bearing on the actions of physicians. Ardoin v. Hartford Accident and Indemnity Company, 260 [360] So.2d 1331 (1978). In the instant case the Court must decide if, given the symptomatic evidence available and the history of the patient, the diagnostic conclusions and the treatment prescribed by the Defendants was within the standard of care applicable to specialists in Internal Medicine in 1976.
The Court has considered the testimony of the parties to this action and the testimony of expert witnesses from both sides. That testimony reveals among other things the following. The patient had a history of arterial-sclerotic disease for which she had been treated and hospitalized in 1972. The patient exhibited no strong lateralizing signs which would have indicated a brain lesion. The C.A.T. scan, while certainly not new in 1976, was not available in Houma and was not as frequently utilized nation-wide as it is at present. At that time an appropriate diagnostic tool under the circumstances was a brain scan. Neither a Neurologist nor a Neurosurgeon was practicing in Houma in 1976.
Expert testimony was, in part, contradictory. But testimony from doctors who were practicing in the specialty in 1976 indicates that the diagnosis of stroke made by the Defendants was within the sphere of reasonably possible diagnoses that would have been made by a physician practicing in that specialty. Testimony indicates that the symptoms of the Plaintiff were compatible with advanced arteriosclerosis. Other testimony established this was a difficult diagnosis under the circumstances.
The Court feels, after reviewing all of the expert testimony, that while the diagnosis reached by the Defendants was erroneous, as was later proven, it was not inappropriate. It is not malpractice to make a wrong diagnosis. It is only malpractice if that diagnosis was in error due to the failure to exercise -a standard of care to be ordinarily expected by a physician practicing in that particular specialty.”

After a careful review of the record and considering all of the evidence in this case, we find no manifest error in the trial judge’s ruling.

Because we upheld the trial judge’s determination that the defendants did not fail to exercise a standard of care ordinarily expected of a physician practicing in that particular specialty, we need not address plaintiff’s assignment of error with regard to the issue of damages.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Dr. Saul Landry worked with Dr. Warren on Friday, April 30, 1976, on patients under Dr. Warren’s care. Dr. Landry was to replace Dr. Warren for the week-end and care for Dr. Warren’s patients in his absence.

      . Although we have not specifically addressed each of plaintiff's assignments of error, we find the opinion adequately discusses all of plaintiff’s complaints.


text:
    June WELLS, Individually And As Administratrix of the Estate of Steve W. Wells, W.A. Wells, Kenneth E. Wells, Steve Wells, Jr., and Carol Wells v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS, Police Jury of Washington Parish, Vi-Con, Incorporated and Reliance Insurance Company.
    No. 83 CA 0706.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Frank E. Lamothe, III, Michael W. Robinson, New Orleans, for plaintiff-appellant Wells, et al.

      George Lamarca, and E. John Litchfield, New Orleans, for defendant-appellee Reliance Ins. & ViCon, Inc.
    John W. King, Atty., D.O.T.D., Legal, Baton Rouge, for appellee Dept, of Transp. and Development.
    H.R. Alexander, 22nd Jud. Dist. Court and Wm. J. Knight, Asst. Dist. Attys., for appellee Washing Parish Police Jury.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is a tort suit by plaintiffs, the surviving children of Steve Wells, against defendants ViCon, Inc., and its insurer, Reliance Insurance Company. Defendants moved for summary judgment alleging that ViCon was the statutory employer of Steve Wells and that plaintiffs’ exclusive remedy was in workers’ compensation. The trial court granted the motion for summary judgment and plaintiffs appeal. Finding no genuine issue of material fact, we affirm.

The record shows that ViCon entered into a contract with the State of Louisiana to resurface a highway in Washington Parish. ViCon in turn contracted with Lavon Fortenberry to haul tonnage, which we understand is the material excavated from the construction site. Steve Wells was employed as a truck driver by Fortenberry. Plaintiffs allege that an employee of ViCon negligently directed Wells to drive his truck into a hole causing the truck to overturn and resulting in Wells’ death.

The sole issue before us is whether the trial court erred in granting summary judgment on the basis that Wells was the statutory employee of ViCon under LSA-R.S. 23:1061 and 1032.

Plaintiffs contend that because the pleadings and affidavits fail to show that the work being performed by Wells at the time of his injury was part of ViCon’s trade, business, or occupation, a genuine issue of material fact exists precluding summary judgment.

Defendants argue that it is immaterial whether the work being performed by Wells was part of ViCon’s trade, business, or occupation. They contend that the fact that ViCon contracted to do work and then contracted with another for performance of the work is sufficient to establish statutory employer status.

We agree with defendants’ contention. In Fultz v. McDowell, 344 So.2d 410 (La.App. 1st Cir.1977), plaintiff, a bricklayer employed by a subcontractor, brought suit against a general contractor who had undertaken the construction of a home. In sustaining an exception of no cause of action, this court found that since the defendant had contracted to build the house and the bricklaying was part of the contract, under LSA-R.S. 23:1061 plaintiff’s exclusive remedy was in workers’ compensation.

Similarly, in Barnhill v. American Well Service & Salvage, 432 So.2d 917 (La.App.3d Cir.1983), the court held that a principal is immune from tort liability under LSA-R.S. 23:1032 and 1061 when the principal contracts to do work and then contracts with another party for performance of the work. The court in Barnhill noted that under such circumstances it is immaterial whether the work being performed by the injured employer was part of the principal’s trade, business, or occupation.

We find no error in the trial court’s conclusion that the pleadings and affidavits show that there is no genuine issue of material fact. In support of the motion for summary judgment defendants introduced the affidavits of Lavon Fortenberry and James Quaid, secretary and treasurer of ViCon. The affidavit of Quaid states that ViCon entered into a contract with the State of Louisiana, that pursuant to the contract it was necessary and essential for ViCon to haul tonnage, and that in order for ViCon to fulfill its obligation ViCon entered into an agreement with Fortenber-ry to provide services in the form of hauling tonnage.

Plaintiffs introduced no counter-affidavits or other evidence in opposition to defendants’ motion for summary judgment. When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967.

Quaid’s affidavit clearly shows that Vi-Con contracted to do work for the State of Louisiana and then contracted with Forten-berry to perform part of the work. In doing so, ViCon became the statutory employer of Wells. Plaintiffs failed to produce any evidence showing a genuine issue of material fact as to this question. The trial court was therefore correct in granting the motion for summary judgment.

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

AFFIRMED.

      . LSA-R.S. 23:1061 "Principal contractors; liability” provides:
      "Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      "Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      . LSA-R.S. 23:1032 provides:
      "Section 1032. Exclusiveness of rights and remedies; employer's liability to prosecution under other laws
      "The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word 'principal' shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      "Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      “The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section."

      . We note that the affidavit of Fortenberry contained in the record is defective in that it was not executed before a notary but was instead executed before a witness who later acknowledged the act before a notary. However, since the Quaid affidavit is sufficient to resolve all issues of material fact we find it unnecessary to discuss the Fortenberry affidavit.


text:
    Lucille Jennings FREEMAN, et al. v. Pete WILLIAMS and Mary Jennings Williams.
    No. 83 CA 0716.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Phil E. Miley of Miley & Martin, Baton Rouge, for plaintiffs-appellees and defendants-in-reconvention.
    Robert M. Braiwick, Jr., New Orleans, for defendants-appellants and plaintiffs-in-reconvention.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

This suit arose over an alleged error in a deed which transferred a disputed amount of property from Pete Williams and Mary Jennings Williams to Lucille Jennings Freeman. The problem occurred because the deed recited that the quantity transferred was 40 acres, but the measure in metes and bounds amounted to only four acres.

On February 3, 1945, an act purporting to be a sale of forty acres in St. Helena Parish was passed between Pete and Mary Williams and Lucille Freeman. On February 4, 1982, plaintiffs, Lucille Jennings Freeman, Freddie Freeman, James Freddie Freeman, and Alice Blanch Freeman Cooper filed suit seeking to have the deed reformed to reflect that forty acres were indeed conveyed. Defendants, Pete and Mary Williams, filed a reconventional demand seeking to have the deed reformed to reflect that only four acres were transferred. Defendants additionally claimed that they had acquired the property by acquisitive prescription. On December 16, 1982, Francis Williams, defendants’ son and administrator of the estate of Pete Williams, was substituted as a defendant and plaintiff in reconvention. The trial judge ruled in favor of plaintiffs, dismissed defendants’ reconventional demand, and reformed the deed to reflect that forty acres were conveyed. Defendants have appealed this judgment and have filed the peremptory exception of prescription on appeal, alleging that the action for reformation had prescribed at the time that plaintiffs’ suit was filed.

Plaintiffs’ version and defendants’ version of the facts differ radically on every issue. Lucille Freeman testified that there was never a question but that forty acres were conveyed until three to five years prior to trial. She stated that Francis Williams had occupied the premises only as a tenant and paid rent. Plaintiffs’ version is corroborated by the testimony of Pies and Riley Jennings (who are brothers of both Lucille Jennings Freeman and Mary Jennings Williams) and Alice Freeman Cooper (who is the daughter of Lucille Freeman). Plaintiffs’ testimony is also bolstered by the testimony of O.C. Hollister who prepared a survey of the property in 1975. Hoi-' lister testified that when he made the survey, the parties were only disputing the location of the property and not the number of acres involved.

Only Francis Williams testified for defendants. He testified that the dispute as to whether forty or four acres were conveyed began approximately fifteen years prior to trial. Williams initially testified that he began making rental payments on the property five years prior to trial. He later testified that he stopped paying rent in 1960 when he learned that the property may not have been owned by Lucille Freeman. Francis Williams is responsible for discovering the discrepancy in the deed.

Defendants say that the trial judge erred in (1) finding that plaintiffs met their burden of proving that the parties intended to convey forty acres; (2) failing to declare the act of sale a nullity for lack of agreement on the object of the sale; and (3) concluding that defendants did not acquire the disputed property by acquisitive prescription.

The law on reformation of instruments is summarized in the case of Custom Financing of Bossier City, Inc. v. Williams, 340 So.2d 649, 650-651 (La.App. 2nd Cir.1976):

The law respecting reformation of instruments is well settled here and elsewhere. It is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. See Ober v. Williams, 213 La. 568, 35 So.2d 219, citing 45 Am.Jur.Sec. 45 et seq. It is a personal action, even when applied to real estate (see Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183), in which the burden is on the one seeking reformation to establish the mutual error and mistake by clear and convincing proof, parol evidence being admissible for this purpose. Waller v. Colvin, 151 La. 765, 92 So. 328; Smith v. Chappell, 177 La. 311, 148 So. 242; Fair v. Williams, 187 La. 953, 175 So. 631 and Southwest Gas Producing Co. v. Hattie Brothers, 230 La. 339, 88 So.2d 649. Hence, it follows that the instant case presents for determination mainly a question of fact, bearing in mind that plaintiff carries the burden of proof and that the evidence of mutual error must be strong and convincing.

The trial judge in the instant case found that “[t]he evidence is overwhelming and has gone beyond a preponderance of the evidence that the plaintiff will prevail in this matter.” (Emphasis added.) After a careful review of the record, we find that the trial judge was not manifestly erroneous in finding that the parties intended to convey forty acres. Plaintiffs met their burden of proving by clear and convincing evidence that there was a mutual error. Therefore, defendants’ contention that plaintiffs’ failure to prove agreement as to the object of the sale is without merit.

The party who makes the plea of acquisitive prescription bears the burden of proving all of the facts that are essential to support it. Levatino v. Williams, 396 So.2d 380 (La.App. 1st Cir.1981). To acquire the ownership of property, not only must corporeal possession exist, but also an intention to possess as owner must be present. La.C.C. art. 3424. A lessee is a precarious possessor who is presumed to possess for another. La.C.C. art. 3438. The testimony of Francis Williams was not consistent. At one point he testified that he stopped paying rent in 1960 when he learned that the property was not the Free-mans’. On another occasion he testified that he began making rental payments about five years ago. Based on this testimony and on plaintiffs’ testimony that Williams only possessed as a tenant, we find that defendants failed to establish adverse possession.

Defendants, in this court, have filed an exception of liberative prescription based upon La.C.C. art. 3499. An action for reformation of a deed is a personal action and is governed by the ten-year lib-erative prescription of La.C.C. art. 3499. However, prescription does not begin to run against the party seeking reformation until the error or mistake is discovered or should have been discovered by the use of due diligence. Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957). Lucille Freeman testified that the dispute did not arise until three to five years prior to trial and that until that time no one questioned the fact that forty acres had been conveyed. Her testimony was substantiated by Pies Jennings, Riley Jennings, O.C. Hollister and Alice Cooper.

Hollister testified that as late as 1975 when he prepared the survey the parties were not disputing the number of acres conveyed but only the location of said property. Only Francis Williams stated that the dispute arose fifteen years prior to trial. After a careful review of all the above testimony, we find that the action for reformation has not prescribed. The decision of the trial court reforming the deed in question and dismissing defendants’ reconventional demand is affirmed at defendants’ costs.

AFFIRMED.

      . Plaintiff Lucille Jennings Freeman was married to John Freeman at the time of the sale. John Freeman died in 1969, and his judgment of possession named plaintiffs Freddie Freeman, James Freddie Freeman, and Alice Blanch Freeman Cooper as his children and heirs.