text:
    Mary Ann CHAMBERLIN, etc., Plaintiff-Appellant, v. Ray DESOTO, et al., Defendants-Appellees.
    No. 84-17.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1, 1985.

      Antoon & Dalrymple, Joseph T. Dalrym-ple, Alexandria, for plaintiff-appellant.
    Trimble, Percy, Smith, Wilson, Foote, Walker & Honeycutt, Elizabeth E. Foote and H. Gregory Walker, Alexandria, for defendant-appellee.
    Eugene Cicardo, Alexandria, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

John L. Chamberlin, a minor represented by his mother, Mary Ann Chamberlin, appeals the granting of a motion for summary judgment in favor of Clifford Daigre-pont d/b/a Clifford Daigrepont Contractors, dismissing Chamberlin’s claim for worker’s compensation benefits. The trial court ruled that LSA-R.S. 23:1035(B) exempts Daigrepont from worker’s compensation liability. The sole assignment of error presented is whether the trial court erred, as a matter of law, in not finding that Daigrepont was engaged in a trade or occupation when Chamberlin sustained his injury, thus Daigrepont was immune from suit in compensation. We affirm, finding that the construction of Daigrepont’s private residence was not in connection with or in furtherance of Daigrepont’s trade, business or occupation.

FACTS

Daigrepont, a dirt contractor, was constructing his private residence in Alexandria. With assistance from some of the employees from his dirt contracting business he prepared the foundation for the slab, hung some of the sheetrock, and occasionally cleaned around the job site. Daig-repont, along with his wife, did the finishing carpentry work and roofed the house. For other construction work he hired: Ay-mond Plumbing for the plumbing work; Allen Guillot for bricking the home; and Ray DeSoto, an electrical contractor, for the installation of the heating and cooling system, and electrical wiring.

Chamberlin, a student thirteen years of age, was employed by DeSoto during the summer vacation as a helpmate. He had worked for DeSoto in this capacity on previous occasions. At the construction site of Daigrepont’s home, Chamberlin was steadying a piece of plywood for Freddie Coutee, an employee of DeSoto, when Chamberlin sustained a severe injury to his left hand. Coutee was cutting a square out of the board using a hand held electric saw with the blade guard up when the electric saw bucked, striking Chamberlin, almost completely amputating his left hand.

STANDARD FOR WORKER’S COMPENSATION LIABILITY

A person rendering service for another is presumed to be an employee. LSA-R.S. 23:1044. An employee of a contractor is deemed to be an employee of the principal when the contractor performs work for the principal in the principal’s trade, business or occupation. LSA-R.S. 23:1061; Lewis v. Exxon Corp., 441 So.2d 192 (La.1983). For purposes of worker’s compensation, LSA-R.S. 23:1032 defines a principal as follows:

“... 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 ”

When a person meets the statutory definition of a principal, he is obligated to the injured employees of his contractors for worker’s compensation. Lewis, supra.

If a person not in the construction business undertakes to act as his own general contractor, it does not necessarily follow as a matter of law that such person is, or is not, in the construction business. This is a question of fact to be determined under the circumstances of each case. Doss v. American Ventures, Inc., 261 So.2d 615 (La.1972); Abadie v. Boudreaux, 398 So.2d 1253 (La.App. 4th Cir.1981). The test is whether the person's services were a substantial, essential and recurring part of defendant's regular business. Shepherd v. Martin, 448 So.2d 223 (La.App. 1st Cir. 1984); Evans v. Naihaus, 326 So.2d 601 (La.App. 4th Cir.1976); LSA-R.S. 23:1035.

Chamberlin relies heavily on Doss, supra, and Slocum v. Lamartiniere, 369 So.2d 201 (La.App. 3rd Cir.1979), writ denied, 372 So.2d 569. We find these cases distinguishable from the case sub judice.

In Doss, supra, the injured plaintiff was entitled to compensation from the defendant, the building owner-lessor, on a construction site because the defendant was engaged in the construction business when its executive officers acted as general contractors supervising the reconstruction of a building it used and rented in its trade as a leasing business. In Slocum, supra, plaintiff was entitled to recover worker’s compensation benefits while constructing a new grocery store for the defendant who was a grocer that determined his business required a new building. It was a commercial enterprise in every respect. Clearly, in both Doss and Slocum the plaintiffs were entitled to worker’s compensation benefits because plaintiffs were injured while performing work for the defendants in furtherance of, and/or in connection with, defendants’ trade, business or occupation.

In Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981), the Louisiana Supreme Court specifically referring to Doss and Slocum commented as follows:

“We recognize that an individual may have several different businesses, and we look to the facts of each particular case to determine whether or not construction, renovation or repair work is connected with the trade, business or occupation of the employer. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). Generally, we have held that where the building being repaired or constructed houses the business or business equipment of the employer, or is leased by an employer engaged in the business of leasing or renting, the employee injured while working thereon is entitled to workmen’s compensation benefits? On the other hand, where the employee is injured while working on property of the employer which has no connection with the employer’s business, he is not covered by the workmen’s compensation law?” (Footnotes omitted.)

Chamberlin further urges that since Daigrepont used employees from his dirt contracting business to help in the construction of his private residence, he is liable. We disagree. Although Daigre-pont used employees from his business in the construction of his private residence, he is immune from worker’s compensation liability since the building under construction was not in furtherance of or in connection with his trade, business or occupation.

The record supports that the construction of Daigrepont’s private residence had no connection with his business as a dirt contractor; his business involved only the hauling and compaction of dirt.

Therefore, we find that Daigrepont is not liable to Chamberlin for worker’s compensation benefits because Daigrepont was not in the trade, business, or occupation of house construction and the construction of his private residence was not in furtherance of or in connection with his dirt contracting business. In accord see: Shepherd, supra; Abadie, supra; Reed v. Lewing, 396 So.2d 1360 (La.App. 2nd Cir.1981); Jason v. Blanchard, 300 So.2d 647 (La. App. 3rd Cir.1974); Stigler v. Bell, 276 So.2d 799 (La.App. 4th Cir.1973); and McMorris v. Home Indemnity Insurance Co., 236 La. 292, 107 So.2d 645 (1958).

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

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    James E. HERNANDEZ, Plaintiff-Appellant, v. Dolores Ann VINCENT, Defendant-Appellee.
    No. 84-32.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      G. Paul Marx, Lafayette, for plaintiff-appellant.
    Colleen McDaniel, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   FORET, Judge.

This is an appeal from a judgment awarding defendant, Dolores Ann Vincent, alimony pendente lite. Plaintiff, James E. Hernandez, filed suit for legal separation. Defendant answered plaintiffs suit and reconvened, asking that the court grant her a legal separation and alimony pendente lite. Following a hearing on defendant’s rule for alimony, the court awarded defendant alimony pendente lite in the amount of $400 per month.

Plaintiff has appealed this award and raised several issues:

(1) Whether the trial court erred in refusing to allow plaintiff to testify regarding the circumstances surrounding his post-separation expenses;
(2) Whether the trial court erred when it considered the expenses claimed by defendant since these expenses were speculative.
(3) Whether the trial court erred in failing to consider as income $43,800 which defendant invested in her business after the suit for separation was filed.

FACTS

The defendant, Dolores Ann Vincent, owns a gift shop which she purchased a short time before her husband filed suit for separation. Defendant testified that since she bought the store, she invested $43,800 in it. $20,000 of this sum came from a loan from her mother, and the rest from the liquidation of some of her assets. Since she purchased it, the business has been operating at a loss, and she has not been able to draw a salary or derive any other income from the business. Defendant testified that she entered into the venture not knowing that the plaintiff would file for a separation, and with the expectation that it would not produce a net profit for five years. Defendant’s only income is $269, which she receives monthly as interest on a municipal bond. Defendant claims that her monthly expenses are $2,430.

The defendant’s husband, plaintiff in this suit, is handicapped by polio, legal blindness, and other health problems which severely limit his mobility. Nevertheless, he earns some $280 per month teaching music to pupils in his home. In addition, he receives approximately $1200 per month in unearned income: rent, oil royalties, and dividends from stocks and bonds. He owns a home on which he owes no money. This home is located on a 16.7-acre tract along with another house which he owns and rents. Plaintiff also owns a 2.5-acre tract which is for sale at a price of $336,000. His bank account contains approximately $9,000, and he owns a car on which he owes no money. Because of his handicap, plaintiff does require assistance in caring for his home and will incur expenses toward that end.

PLAINTIFF’S

POST-SEPARATION EXPENSES

Plaintiff contends that the court erred when it prevented him from testifying about his post-separation expenses. In fact, the court permitted plaintiff to testify fully as to the amount of such expenses. The court only prevented plaintiff from testifying concerning the details of how these expenses were incurred since this apparently would involve the issue of marital fault. The court acted properly in this regard.

DEFENDANT’S EXPENSES

In his brief, plaintiff argues that the court should not have considered the expenses claimed by defendant because they were speculative. Plaintiff correctly points out that defendant was not, at the time of the hearing, incurring some of the expenses which she listed on her affidavit. At the time of the hearing, defendant was living with her mother and was not paying rent for an apartment or utilities although she listed these as items on her affidavit of income and expenses. Defendant did, however, testify that she planned to move into an apartment as soon as she had sufficient funds. Based on this, the trial judge could have found that the expenses were not so speculative as to warrant their exclusion from consideration.

More importantly, however, even if the somewhat speculative expenses of defendant were excluded from consideration, the other non-speculative expenses would easily add up to more than $679, which is the monthly income of defendant when the $400 in alimony is added to her monthly income of $279. For example, a list of defendant’s non-speculative expenses would include:

clothing. $ 100.00
transportation. 200.00
personal & grooming necessities. 20.00
mortgage on store. 560.00
counseling. 340.00
car insurance. 50.00
Total. $1,150.00

A spouse seeking alimony pendente lite is entitled to be maintained in the same manner that he or she was accústomed to during the marriage. Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3 Cir.1983). Of course, if the husband’s means are not sufficient to provide the sum necessary for that purpose, the amount of alimony pen-dente lite must be fixed at a sum which will be just and fair to the parties. Frederick v. Frederick, 379 So.2d 808 (La.App. 4 Cir. 1980); Shepard v. Shepard, 334 So.2d 745 (La.App. 3 Cir.1976). We think the court adhered to this standard in fixing alimony pendente lite at $400 per month.

DEFENDANT’S INCOME

The last contention of plaintiff that we must consider concerns money which defendant invested in her business after plaintiff filed suit for separation. Plaintiff claims that this money was income. This money consisted of: $15,000 withdrawn from a Merrill-Lynch account; $6,100 from a water revenue bond; $2,700 withdrawn from a savings account and a money market account; and $20,000 borrowed from her mother. The trial court correctly concluded that these sums did not represent income to defendant. The loan from her mother was not income. All of the other sums involved were capital or proceeds from the liquidation of assets. They were not income. A spouse who seeks alimony pendente lite is entitled to it if he does not have sufficient income for his maintenance. LSA-C.C. Art. 146. A spouse is not required to deplete his assets or capital in order to be entitled to alimony pendente lite. McMath v. Masters, 198 So.2d 734 (La.App. 3 Cir.1967).

On the other hand, a court should consider not only the income of the spouse called upon to pay alimony, but his means, which include not only income but assets. Lynch v. Lynch, 422 So.2d 703 (La.App. 3 Cir.1982). The testimony of plaintiff indicated that his monthly income was approximately $1,830. He also testified that he owes no money on his home and that he owns another house which is located, along with his own home, on a 16.7-acre tract. Plaintiff also owns a 2V2-acre tract which is for sale at a price of $336,000. Plaintiff’s car is paid for and he has approximately $9,000 in a savings account.

The trial court is vested with much discretion in fixing alimony pendente lite, and its determination in this regard will not be disturbed absent a clear abuse of that discretion. Arceneaux v. Arceneaux, supra. Given the meager income of defendant and the substantial means of plaintiff, the trial court did not abuse its discretion in fixing the award.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against appellant, James E. Hernandez.

AFFIRMED.


author: DOUCET, Judge.

text:
    Anthony DOUGET, et al., Plaintiffs-Appellants, v. Craig JOHNSON, Defendant-Appellee.
    No. 84-54.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Vernon McManus of Tate & McManus, Eunice, for plaintiffs-appellants.
    Clanton & Johnson, John W. Johnson, Eunice, for defendant-appellee.

      Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

The plaintiffs seek damages for property damage and mental anguish inflicted on them by the defendant, Craig Johnson. They appeal from a judgment rejecting their demands.

At about 11:30 p.m. on December 24, 1980, the plaintiffs left the Purple Peacock Night Club in Eunice, La. after having some drinks. Plaintiff, Anthony Douget, an off-duty Eunice Police Officer, was driving his pickup truck with Abigail Hollier, Gregory Michael Savoy, and Kimberly Guil-lory as passengers. They found the exit to the night club parking lot blocked. Hearing a crash and seeing other cars going in that direction, the plaintiffs drove to the back of the parking lot. There they found that another car had apparently broken a locked gate. The plaintiffs drove through the opening made by the damage to the gate, onto property under the control of the defendant, Craig Johnson, and adjacent to his home. Located in this area, which is owned by the defendant’s father and/or a family corporation, were buildings containing valuable property of the defendant, his family and the family corporation. The plaintiffs followed a faint trail through the area. They arrived at a second gate which was closed with a chain, but not locked. Charles Miller was standing near the gate and directed the plaintiffs in an attempt to turn around and retrace their path. While trying to turn around, the plaintiffs ran into the gate post, a four inch by four inch creosote post slipped into a pipe sleeve which was set in concrete, possibly striking it more than once, and knocked down the entire gate. They backed onto James Street. Charles Miller testified that plaintiff, Anthony Douget, got down to investigate the damage.

The defendant testified that while this was happening, he was asleep in his home. His wife awakened him and told him a truck was on the property. He looked out, saw a truck facing the second gate, and someone in the yard where his father kept antique cars. The truck began to turn around. A man was on the ground directing the driver. The defendant, believing that a burglary was taking place, began to call the police. His wife then reported that the truck was breaking the gate. The defendant gave her the phone, put on his pants and boots, got a .22 repeating rifle, and ran out towards the truck and the street. When he got to the corner of his property, near the street, he saw two people on the ground near the truck. He fired a warning shot in the air and called at the plaintiffs to stop. He saw the two people get back in the truck. Instead of stopping, the plaintiffs accelerated, advancing on the defendant and swerving towards him where he stood 10 to 15 feet from the road. He testified that he believed the truck was trying to run him down. He further testified that as the truck drew even with him, he knew that it would not hit him. He fired twice at the rear tire of the truck in an effort to make the plaintiffs stop. He apparently hit the body of the truck with one shot.

The Eunice Police Department received a call from the defendant’s wife reporting that a truck was on their property and that a burglary was suspected. A short time later a call was received from Anthony Douget. Officers Senegal and Bertrand responded to the Johnson’s call and took the defendant’s report of the incident. Sergeant Moody was dispatched to answer Anthony Douget’s call at the residence of the plaintiff, Abigail Hollier, on Pearl Street. When Sergeant Moody arrived, all the plaintiffs were present. Anthony Douget showed him the bullet hole in the truck. He told Sergeant Moody that he had crossed the Johnson property while in “hot pursuit” of a truck seen crashing first through one gate then the next and had been shot at as he exited the Johnson property. The other plaintiffs corroborated this story. Douget only revealed the true course of events when confronted with the discovery by investigating officers of creosote and a piece of creosote post on the back bumper of his truck.

The plaintiffs brought suit against the defendant for damage to the truck and for mental pain and anxiety. Defendant reconvened. After a trial on the merits, the trial judge denied the claims of the plaintiffs and gave reasons for judgment.

The issue in this case is whether the defendant was justified in shooting at the tires of plaintiffs’ truck as they exited his property, which they had entered illegally.

In assault and battery cases the plaintiff has the same general burden of proof which any plaintiff has in a tort or damage suit. Ogden v. Smith, 344 So.2d 1099 (La.App. 3rd Cir.1977). In a Louisiana tort ease, the plaintiff must prove by a preponderance of the evidence, the negligence of the defendant and the damages caused by the defendant’s fault. Gums v. Delta Downs, Inc., 425 So.2d 303 (La.App. 3rd Cir.1982). The burden then shifts to the defendant to show provocation or justification for his actions. Knuckles v. Beaugh, 392 So.2d 710 (La.App. 3rd Cir. 1980), Ogden v. Smith, supra.

In this case the plaintiff, Anthony Douget, showed damages in the amount of Thirty-Four and 73/ioo ($34.73) Dollars to his pickup truck caused by the action of the defendant. It is less clear whether any ox the plaintiffs incurred psychological damages. There was no expert testimony as to psychological damages. The trial judge was skeptical about damages but did not have to decide the issue, finding no liability. Our assessment of the evidence, considering the fleeting nature of the incident and the serious credibility questions raised by the plaintiffs’ efforts to cover up the incident with a concocted story, later admitted untrue, and the other events of that night, causes us to conclude that there was no proof of mental anguish damages causally related to the conduct of the defendant.

With regard to the defendant’s burden of showing justification, the trial judge applied the rule of Hesse v. Busby, 379 So.2d 25 (La.App. 3rd Cir.1979) writ refused 381 So.2d 1234 (La.1980). That case involved a suit against a man who held four unarmed teenagers at gunpoint and arrested them, in the belief that they were responsible for vandalizing his home and harrassing his family. This court found that Mr. Busby was justified in his behavior, citing Byrd v. Isgitt, 338 So.2d 374 (La.App. 3rd Cir.1976) as authority:

“The general rule is that where a person reasonably believes he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect himself. Each case depends on its own facts, such as the relative size, age and strength of the parties, their reputations for violence, the degree of physical harm reasonably feared and the presence or absence of weapons. Roberts v. American Employers Insurance Company, Boston, Mass., La.App., 221 So.2d 550 (3rd Cir.1969).”

This case however, differs from Busby in that Mr. Busby never fired his weapon. The defendant, on the other hand, fired his weapon after he knew that he was no longer “threatened with bodily harm”. Under Louisiana law, a plaintiff cannot recover damages for battery if he provoked the altercation in which he was injured. However, the aggressor may become a victim if the original victim uses excessive violence and unnecessary force to defend himself. Levesque v. Saba, 402 So.2d 266 (La.App. 4th Cir.1981); Willis v. Willis, ‘ 287 So.2d 642 (La.App. 3rd Cir. 1973).

Although the defendant believed that a burglary had taken place or was attempted, and that an attempt was made to kill him, he went beyond the force necessary to protect himself. He shot at the truck after he knew that he was no longer in physical danger. We heartily agree with the trial judge’s finding that the plaintiffs knowingly made an illegal entry on to the defendant’s family property, thereby setting in motion the entire incident. We sympathize with Mr. Johnson’s desire to protect his property and his life. However, under the law, Mr. Johnson became the aggressor through his use of unnecessary force in defending himself. Therefore, he is responsible for any damages inflicted on the plaintiffs.

Mr. Douget received damage to his truck in the amount of $34.73. The record shows, however, that the plaintiffs have not carried their burden of proving any of the psychological damage claimed by each of them as a result of the defendant’s actions.

Accordingly, the judgment of the trial court is reversed with regard to the plaintiff, Anthony Douget, and judgment is rendered in his favor in the amount of $34.73, together with interest from the date of judicial demand. The judgment of the trial court is affirmed as regards plaintiffs Abigail Hollier, Gregory Michael Savoy, and Kimberly Guillory, since no injury to them was shown.

Half the costs of this appeal are to be paid by the defendant. Half the costs of this appeal are to be paid by the plaintiffs.

REVERSED AND RENDERED IN PART: AFFIRMED IN PART.


author: YELVERTON, Judge.

text:
    Roman Tyrone SAVANT, Plaintiff-Appellee, v. Samuel Kyle GILLEY and Mona Reed Gilley, Defendants-Appellants.
    No. 84-63.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1,1985.
    John L. Van Norman, III, Lake Charles, for defendants-appellants.
    Douglas Hebert, Jr., Kinder, for plaintiff-appellee.

      Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The primary issue presented by appellants, Samuel Kyle Gilley and Mona Reed Gilley, is whether the actions of a chattel mortgage debtor in liquidating the inventory and equipment of a grocery store covered by the mortgage, in violation of terms and conditions of the mortgage, justified a suit to accelerate the mortgage note and an order granting the provisional remedy of sequestration, even though the initial installment payment under the note was not yet due when the suit was filed. The second issue is whether, on the trial of a motion to dissolve the writ of sequestration, the trial judge correctly found that the plaintiff proved the grounds relied upon for the issuance of the writ. Finding that the writ of sequestration was properly issued, and that the final judgment was proper, we affirm.

The Gilleys purchased from plaintiff, Roman T. Savant, a small rural grocery store, along with its stock of merchandise, equipment and fixtures. They gave a promissory note for $14,500, payable in four equal principal installments, as partial payment of the purchase price. The first installment was due March 2, 1983. The note was secured by a chattel mortgage which itemized the equipment, goods, wares, inventory, fixtures, appliances, shelving, refrigeration equipment and merchandise of the store, known as “Village Grocery” located in Allen Parish. The note and the chattel mortgage were executed on September 2, 1982, and the Gilleys began operating the store immediately.

Early in 1983 it came to the mortgage creditor’s attention that certain shelving that had been sold with the store and that was listed in the property description in the mortgage, was missing, that inventory appeared to be declining in quantities larger than attributable to normal sales, and that the operating hours of the store had become irregular. These and other circumstances prompted Savant to file suit against the Gilleys on February 22, 1983, seeking a judgment on the entire debt evidenced by the promissory note. The verified petition also sought a writ of sequestration directing the seizure of the property secured by the chattel mortgage. The writ was issued the same day that the suit was filed and the inventory and equipment of the store was seized by the sheriff. Upon plaintiffs motion, the perishable items seized under the writ were ordered sold, and after notice to the defendants, the perishable items were sold at public auction for $700 on February 25, 1983.

Defendants moved to dissolve the writ and asked for damages suffered due to the alleged wrongful issuance of the writ. The motion to dissolve was referred to the merits and all matters were heard and judgment was rendered on August 15, 1983, awarding plaintiff judgment for $14,500, plus interest, subject to a credit of $700, recognizing the chattel mortgage, maintaining the writ of sequestration, and dismissing the motion to dissolve the writ and the defendants’ demand for damages. This is the judgment from which the appeal is taken.

The primary argument of appellants is the contention that the holder of a note secured by a chattel mortgage on movable property cannot seek foreclosure by writ of sequestration and sale prior to the maturity date of the installment due under the note. The appellants point out that the first installment due under the note was not until March 2, 1983, but that the suit was filed on February 25, 1983.

This argument by appellants overlooks the fact that it was not the violation of the obligation to make the installment payments that formed the basis for the suit in the first place. The acceleration provision of the promissory note applies to other conditions besides the non-payment of installments. The promissory note contained the following acceleration language:

“It is hereby agreed that ... if default be made in the performance of or compliance with the covenants and conditions of the mortgage securing this note, then, in any or all such events, the entire amount of the principal of this note with all interest then accrued, shall, at the option of the holder or holders of this note, become and be due and collectible on the conditions expressly provided in said mortgage.... ”

The pertinent conditions and covenants of the chattel mortgage read as follows:

“[I]t is hereby further stipulated and agreed ... that if said Mortgagor without consent in writing of the holder, or holders, of said note, or notes, previously obtained sells or attempts to sell the mortgaged property, or remove, consent, or attempt to remove the same from the parish aforesaid ... the note or notes herein described shall at the option of the holder, or holders, of the same become immediately due and exigible in entirety without the putting of maker in default, and the holder, or holders of said note,'or notes, are hereby authorized to cause all and singular the property herein described and mortgaged to be immediately seized and sold under executory process issued by any Court of competent jurisdiction, without appraisement, to the highest bidder payable cash....”

There was a full trial of the circumstances that gave rise to the principal suit and the provisional demand. While some facts were disputed, the trial judge made findings of fact and credibility determinations which are supported by our review of the record. The store had begun to keep irregular hours, the inventory was being depleted, wooden shelving and inventory were being sold to other grocery businesses in other parishes. Some of the sales of shelving and inventory were admitted by Gilley. These acts were in violation of the covenants and conditions of the mortgage securing the note. Under the agreement between the parties the note had become payable, and the suit upon it was not premature. See Bomer-Ferguson Co. v. Shapiro, 148 La. 736, 87 So. 729 (1921).

The writ of sequestration was also properly issued and maintained. La.C.C.P. art. 3571 reads:

“When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the prop- . erty from the parish, during the penden-cy of the action.”

This article sets forth the grounds for the issuance of a writ of sequestration. La.C. C.P. art. 3501 lays out the requirements a petitioner must fulfill before the writ will be issued. Article 3501 reads:

“A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.”

Plaintiffs verified petition fulfilled the requirement of La.C.C.P. art. 3501. Plaintiff alleged the note, the mortgage and the removal of items and inventory described in the chattel mortgage. Further, plaintiff alleged in paragraph five of the petition his belief that the defendants would sell or conceal the assets covered. This is sufficient to have the property seized under La.C.C.P. art. 3571 and La.C.C.P. art 3501. Credit Alliance Corp. v. Rabb, 419 So.2d 123 (La.App. 2nd Cir.1982), writ denied, 422 So.2d 424 (La.1982); Montague v. Tinker, 197 So.2d 154 (La.App. 3rd Cir.1967), writ refused, 250 La. 916, 199 So.2d 921 (1967).

Defendants moved to dissolve the writ under La.C.C.P. art. 3506 which reads:

“The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.”

After trial on the merits, the trial court determined that plaintiff was entitled to relief and dismissed defendants’ motion to dissolve the writ of sequestration and their demand for damages.

We find no error. The judgment is affirmed, appellants to pay costs of this appeal.

AFFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Marcia P. GAY, Defendant-Appellant.
    No. CR 84-67.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Richard M. Arceneaux, Jennings, for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., Jennings, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Defendant, Marcia Porter Gay, was indicted for second-degree murder, a violation of LSA-R.S. 14:30.1. Pursuant to a plea bargain, defendant pleaded guilty to manslaughter, a violation of LSA-R.S. 14:31, with the understanding that the maximum penalty the sentencing court could impose was twenty-one years at hard labor, the penalty under the manslaughter provision. At sentencing, the court imposed upon defendant two enhanced penalties: five years at hard labor under LSA-C.Cr.P. Art. 893.1, without benefit of probation, parole or suspension of sentence; and two years at hard labor under LSA-R.S. 14:95.-2, to run consecutive to the five years, without benefit of parole, probation, suspension of sentence or credit for good time. Defendant appeals, urging two assignments of error:

(1) The trial court imposed an illegal sentence by applying two different enhanced penalty statutes to a single offense; and
(2) The sentence imposed by the trial court constitutes double jeopardy, in violation of U.S. Const. Amendments 5, 14 and LSA Const. Art. 1 § 15, since defendant received multiple punishments for a single offense.

We affirm defendant’s conviction, but vacate defendant’s sentence, finding the imposed sentence was not part of the plea bargain. Finding that defendant’s sentence breached the plea bargain, we preter-mit all other issues.

The sole issue presented is whether the trial court erred in sentencing defendant under two enhanced penalty statutes, without allowing defendant the opportunity to withdraw her plea, when the plea bargain agreement provided that defendant’s sentence would be imposed under the penalty provision for manslaughter.

The law is well settled that whenever a guilty plea rests in any significant degree on an agreement or promise by the prosecutor, so that it can be viewed as part of the inducement or consideration, the promise must be fulfilled or the defendant given an opportunity to withdraw his guilty plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Bosworth, 415 So.2d 912 (La.1981); State v. Lockwood, 399 So.2d 190 (La.1981); State v. Chalaire, 375 So.2d 107 (La.1979); State v. Neitte, 363 So.2d 425 (La.1978). The state’s failure to comply with a material representation or promise which induced defendant’s guilty plea results in a denial of due process. State v. Bosworth, supra; State v. Neitte, supra.

In the present case, when defendant tendered her guilty plea on November 23, 1983, pursuant to a plea bargain, a document entitled “Exhibit A”, which consists of questions propounded to defendant, clearly reflects her understanding of the maximum penalty of twenty-one years at hard labor. In question number three: “Do you understand that the maximum penalty for the crime with which you are charged is 21 yrs?”, the State filled in the blank “21 yrs.” She responded affirmatively. The document fails to mention and/or inquire about enhanced penalties. After answering all of the questions under oath, defendant and the trial judge affixed their signatures to the document.

In addition to the abovementioned document, in the thorough Boykinization of defendant by the trial court, it again reviewed with defendant the maximum penalty under the manslaughter provision, as follows:

“The COURT:

... Now, then let me say this. The offense of manslaughter calls for imprisonment at hard labor for not more than twenty-one years as the maximum, of course. It could be less, and in your case, as I understand the recommendation by your Counsel and by the District Attorney, that the Court will ask for a pre-sentence investigation, which will be made by the probation officer of the Department of Corrections, and then as soon as that is received, either I, or whichever judge happens to be on the bench at that time, will have you come back for sentencing and will impose a sentence based on what the judge thinks is appropriate under the circumstances.
As I say, it could be a maximum of twenty-one years in the penitentiary, could be less. But you’re not guaranteed anything. Do you understand?

THE DEFENDANT:

Um hum.

THE COURT:

All right. Now, then, I take it that you do understand the nature of the charge to which you wish to plead guilty, and that it is a felony offense which could result in up to twenty-one years at hard labor in the penitentiary. Is that correct?

THE DEFENDANT:

Yes, sir.”

The enhanced penalty statutes were never mentioned during this stage of the proceedings. The record clearly reflects that the defendant was led to believe that she would be sentenced under the provisions of the manslaughter statute.

At the sentencing hearing, to the surprise of defendant and her counsel of record, the State moved to have defendant sentenced under R.S. 14:95.2 and C.Cr.P. Art. 893.1, since defendant used a firearm in commission of the crime. The State unilaterally altered the plea bargain agreement to impose enhanced penalties. The sentencing court stated that this was the first time both statutes were brought before it and that it intended to impose a sentence of seven years at hard labor regardless of the enhanced penalty statutes; however, because of the statutes, it felt compelled to sentence defendant to a minimum of seven years — five years without benefit of probation, parole, or suspension of sentence under C.Cr.P. Art. 893.1 and two years without benefit of parole, probation, suspension of sentence or credit for good time under R.S. 14:95.2, to be served consecutively.

Defendant was not sentenced under the manslaughter penalty in accordance with the plea bargain agreement nor was she given the opportunity before sentencing to withdraw her guilty plea. Since defendant was never informed of the possibility of enhanced penalties, she was never fully informed of the consequences of her guilty plea. Under these circumstances, the sentencing court must give defendant the opportunity to withdraw her guilty plea.

We find that the imposed sentence breached the plea bargain, therefore, defendant’s sentence is set aside.

DECREE

For the foregoing reasons, the conviction of defendant, Marcia Porter Gay, is affirmed. Defendant’s sentence is vacated and set aside and the case is remanded to the district court for re-sentencing under LSA-R.S. 14:31 in accordance with the terms of the plea bargain agreement.

CONVICTION AFFIRMED, SENTENCE VACATED, CASE REMANDED FOR RE-SENTENCING.


text:
    Reba Gayle CONLY, Plaintiff-Appellant, v. TOWN OF FOREST HILL, et al., Defendant-Appellee.
    No. 84-79.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Eugene P. Cicardo, Jr., Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

The plaintiff-appellant seeks damages for a personal injury resulting from an inter-sectional collision with the defendant-appel-lee, Mr. John Droddy, Chief of Police of the Town of Forest Hill, Louisiana.

There are conflicts in the testimony as to exactly how the collision occurred. However, certain facts are clear. On January 22, 1983, at about 10:55 p.m., Ms. Conly was returning home from work. She was driving south on U.S. Highway 165, a two-lane highway, approaching its intersection with La. Hwy. 112, another two-lane highway. When she reached the intersection, she turned left onto Hwy. 112 in order to go east.

Traffic at the intersection of the two highways is regulated by a flashing signal. There is a single light flashing red for traffic on Hwy. 112 and a flashing yellow light for traffic on Hwy. 165. There is also a stop sign at the intersection for traffic on Hwy. 112.

At the same time, John Droddy was parked in a police vehicle on the shoulder of Hwy. 112. He was clocking northbound traffic on Hwy. 165, with stationary radar. After clocking a speeding truck going north on Hwy. 165, he cleared his radar and cheeked the truck’s speed again. Ascertaining that the truck was speeding, the defendant started his engine and pulled onto Hwy. 112 in the westbound lane. He stopped at the stop sign to allow the truck to pass the intersection. He did not turn on his flashing lights. As he moved out to make a right turn and pursue the speeder, he and Ms. Conly crashed together. Ms. Conly’s car sustained damage to the left front quarter panel at the wheel. The front left fender of Chief John Droddy’s car was damaged and the left turn signal was smashed.

Discrepancies appear in the testimony with regard to the manner in which Ms. Conly made her turn. According to her own testimony, Ms. Conly turned in front of the truck before it reached the intersection in order to get out of its way. She testified that it was swerving and that she was afraid it would come over into her lane if she did not turn before it got to the intersection. She further stated that she heard the defendant, John Droddy, start his engine after she began to turn and that he pulled onto the road and hit her, apparently all in one movement, without stopping. She said that Chief Droddy’s headlights were not on at the time of the collision.

David Patterson, the driver of the speeding truck testified that Ms. Conly’s ear crossed the double yellow line in the middle of Hwy. 165, crossed his (northbound) lane, and drove southward down the asphalt shoulder of the northbound lane for a short distance before either his or her vehicle reached the intersection. He stated that he had passed the intersection before the collision occurred. He did not see the police car and was not aware of the accident until the next day.

Estelle Reeves, who was a passenger in the truck, testified that Ms. Conly turned into the intersection before the truck got to it. She said that she saw the police vehicle start to move without any headlights on. However, she stated that she did not see the collision.

Chief Droddy’s testimony indicated that he turned on his headlights and pulled onto Hwy. 112 after clocking the speeding truck. He said that he stopped at the stop sign while waiting for the truck to pass. As the truck passed the intersection he began to move forward in order to turn right into the northbound lane of Hwy. 165 to follow the truck. As he did this, Ms. Conly turned left from the southbound lane of Hwy. 165, crossing the yellow centerline and turning east into his lane of traffic on Hwy. 112, that is into the westbound lane, and hit his vehicle.

The trial judge found that the collision occurred entirely in the westbound lane of Hwy. 112, but that the damage to the vehicles did not indicate who hit who or who was negligent. He stated that "... the pictures and the physical evidence of the vehicles show that either vehicle could have been moving at the time of the collision, or either one could have been perfectly stationary.” Therefore, the judge rendered judgment based on the testimony of the witnesses. First explaining his reasons for discounting certain portions of the testimony, he drew conclusions as to what actually happened:

“I don’t think that the collision was a result of Mr. Droddy running a stop sign. At least from the legal standpoint, as the accident did not occur in the intersection. Whether he had his lights on or not was not a cause of the accident in fact, because Mrs. Conley [sic] testified that she saw Mr. Droddy before the accident.
It seems clear to this Court that Mrs. Conley [sic] was attempting to make a left turn into 112, and was attempting to avoid the Patterson vehicle, which was going north on 165, and in so doing she struck the vehicle belonging .... being driven by Chief Droddy and I think owned by the Village of Forest Hill. The accident occurred entirely in the westbound lane of 112. Chief Droddy was in his proper lane of traffic and the plaintiff encroached into his lane of traffic, and there the collision occurred, entirely in Chief Droddy’s lane of traffic, which was the west lane of Highway 112. The Court does not find that the accident occurred in 165 at all, and it was west ... east, rather, of the stop line. In essence the Court can not find that the plaintiff has borne it’s [sic] burden of proving negligence on the part of Chief Droddy, and therefore judgment will be rendered in favor of the defendants, dismissing the plaintiff’s demands, all at their cost.”

We cannot disturb these findings absent manifest error on the part of the trial judge. As the Louisiana Supreme Court explained in Canter v. Koehring, 283 So.2d 716 (La.1973),

“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. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to' evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Upon consideration of this standard and after review of the record, we cannot find that the trial judge in this case lacked a reasonable factual basis for his finding. Based on reasonable evaluations of credibility, analysis of the physical evidence, and inferences of fact, all clearly outlined in his reasons for judgment, the trial judge ruled in favor of the defendant, dismissing the plaintiffs claims at her cost.

Therefore, we affirm the judgment of the trial court and assess the costs of this appeal against the plaintiff-appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    Lena MORVANT, et al., Plaintiff-Appellant, v. Huey SMITH, et al., Defendant-Appellee.
    No. 84-85.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    David W. Groner, New Iberia, for plaintiff-appellant.
    Jack Bolinger, Lafayette, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal by the plaintiff, Lena Morvant, individually and as natural tutor for her minor son, Willie Morvant, against the defendants Huey Smith, individually and as natural tutor for his minor daughter Lisa Smith, and State Farm Fire and Casualty Company. Liability of the defendants is admitted and the only question before this court is whether the trial judge abused his discretion in awarding $17,500 to the plaintiff for general damages. Finding no abuse of discretion by the trial judge, we affirm.

This suit arises out of the action of defendant’s daughter, Lisa Smith, oh July 26, 1982. Lisa threw a half-full half gallon juice bottle at several boys who were swimming below where she was fishing on the Catahoula Bridge in St. Martin Parish, Louisiana, and were teasing her by pulling on her fishing line. The bottle hit Willie Mor-vant on the head, shattered, and caused a series of cuts on his face and shoulder and other damages complained of in this suit.

Lena Morvant seeks an increase in the $17,500 award for the following general damages: pain, suffering, and psychological consequences suffered by Willie Mor-vant subsequent to the accident, including pain and suffering before, during, and after two plastic surgery operations, and permanent residual facial and shoulder disfigurement. The defendants do not seek a reduction and contend that the award is fair and equitable.

The principles of appellate review required by La.Civ.Code article 1943(3) and Louisiana jurisprudence permits the trial judge much discretion in the assessment of general damages. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977); Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506, 507 (La.1978); Reck v. Stevens, 373 So.2d 498, 499 (La.1979).

At the time of the accident, Willie Morvant was a typically active thirteen year old child. His activities involved the normal share of bumps and scrapes for a boy his age. Receiving stitches was not a new experience for him. The record shows that during the time the cuts to Willie’s face and shoulder were being closed by implanting some sixty-nine stitches, Willie was “wide-eyed and excited” but never complained of pain. Neither Willie nor his mother ever requested a prescription for pain and none was ever prescribed by any of the treating physicians. Mrs. Morvant testified that Willie experienced severe discomfort the first week after the accident and Dr. Schneider, Willie’s doctor, stated that his cuts were bad enough to cause some discomfort. However, there was no further evidence in the record that Willie experienced any severe pain and by August 9, 1982, less than two weeks after the accident, Dr. Schneider observed that everything was doing very well and there was neither infection nor discomfort complained of.

To almost eliminate Willie Morvant’s most severe scars, a plastic surgery operation is required that will involve a three part process: excision, reconstruction and dermabrasion. Willie’s severe scars, which include the scars on the shoulder, along the cheekbone, and under the left eye, might require that the above operation be done twice. His lighter scars, which include the ones on the forehead and on the bridge of the nose, need only the part of the process called dermabrasion. Dermabrasion is a process where the top layer of the scar is sanded away in order to allow the skin to be even and smooth when it heals. Dr. Cromwell, the plastic surgeon, testified that dermabrasion would be the most painful of the entire process and the pain, which would last only about ten days, is equal to a bad brush burn.

The plaintiff argues that Willie Morvant will suffer severe emotional problems because of significant permanent facial scarring. However, the evidence shows that there will be no significant permanent facial scarring. The plaintiff’s doctor testified that after the plastic surgery procedures, permanent residual scarring will be minimal. All of the scars will be reduced to a level of Grade I. The local grading system used by the doctors in the area classify the Grade I scar as a scar which is difficult to see at “close conversational confidential distance.” Therefore, despite how typical it is for a child to suffer severe emotional problems because of significant permanent facial scarring, Willie Morvant should not experience such problems because his scars will be reduced to a level of Grade I.

The plaintiff also complains that the psychological damage to Willie Morvant was ignored by the trial judge. The majority of the trial involved the expert testimony of a Dr. Berard concerning his evaluation and treatment of Willie Morvant and his opinion of the emotional changes and disruptive behavior exhibited by Willie. Dr. Berard was accepted by the court as an expert in the field of Clinical Psychology. His testimony was uncontradicted and undisputed by the defendants. The trial judge, however, decided that the psychological damage resulting from the trauma of the accident was not nearly as severe as Dr. Ber-ard indicated. It is evident that the trier of fact simply did not agree with Dr. Berard’s opinion on the ultimate fact at issue, i.e., the amount of psychological damage to Willie Morvant.

The plaintiff asks whether a trial court can ignore uncontradicted, established evidence documented by facts and experts. It is true that uncontradicted expert testimony regarding the underlying facts may not be lightly disregarded. Lester v. Employees Mutual Liability Insurance Company of Wisconsin, 333 So.2d 672, 673 (La.App. 3rd Cir.1976), writ denied, 337 So.2d 875 (La.1976). However, even expert testimony as to the ultimate facts, although uncontradicted, is not binding on the court. Id. at 674.

The trial judge cannot totally disregard the underlying fact that, due to Willie’s history of insecurity, the facial scarring threatened his sense of identity. He also cannot totally disregard the expert’s hypothesis that Willie’s aggressiveness, bed wetting, and social isolation could be caused by his peer group teasing him and calling him names like “scarface.”

However, other underlying facts were also considered by the trial judge. Willie testified that he was teased by one boy only one time and that time was within the first week of the accident. Dr. Berard testified that within less than one year all the alleged psychological consequences caused by the accident had subsided.

After weighing all of the underlying facts the trial judge reached the ultimate factual conclusion that Willie did not suffer the severe psychological damage indicated by Dr. Berard. We find no error in the conclusion reached by the trial judge.

Finally, the plaintiff contends that in an analogous case a boy received general damages of $12,000 when his special damages amounted to only $3,060; therefore, since Willie Morvant’s special damages amount to $12,265, his award for general damages should amount to $60,000. Damage awards in other cases serve only as an aid in determining whether there has been an abuse of discretion in awarding damages and rivet no steel frame of uniformity. LeBlanc v. Montgomery Ward & Co. 420 So.2d 1320, 1322 (La.App.3rd Cir.1982). Damages must be determined on the basis of the facts and circumstances peculiar to each base. Id; See also Reck v. Stevens, supra. The Louisiana Supreme Court, in Reck, requires an appellate court to find articulable reasons why the trial judge abused his much discretion granted in La. Civ. Code article 1934(3) before it may compare the prior awards of closely similar cases. Reck v. Stevens, supra at 501. We will not compare prior awards because we find no abuse of discretion.

While we may not necessarily agree with the $17,500 award for general damages, we will not disturb the trial court’s award when it can reasonably be supported by the evidence and justifiable inferences from the evidence before it. Coco v. Winston Industries Inc., supra at 334.

The law of Louisiana concerning appellate review of damage awards is well stated by the following:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony including that of residual pain.”

Boswell v. Roy O. Martin Lumber Co., Inc. 363 So.2d 506, 507 (La.1978) (citing Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974)).

Our careful review of the record convinces us that the trial judge did not abuse his “much discretion” in the award of general damages. LSA-C.C. art. 1934(3).

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      .While being treated for the injuries from the broken juice bottle, Willie carried stitches in his leg from an unrelated incident. (See Record p. 45). Willie had also received stitches in his foot on at least two different occasions before the injury caused by the broken juice bottle (See Record p. 72).

      . See Record p. 61.

      . See Record p. 110.


author: STOKER, Judge.

text:
    Maxine Marie BAUDOIN, Plaintiff-Appellee, v. Kenward James HEBERT, Defendant-Appellant.
    No. 84-92.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Donald Landry, Lafayette, for defendant-appellant.

      Theall & Fontana, Anthony Fontana, Jr., Abbeville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

This is an appeal in a child custody action. Maxine Baudoin, mother of the child, Cory Hebert, filed suit against the father, Kenward Hebert, for sole custody of the child. The court awarded joint custody, ordered that the child not be removed from the jurisdiction of the court without its approval, and ordered that the father give a property bond to assure his compliance with the judgment. The father appeals, contending the court abused its discretion in awarding custody to the mother for a much greater percentage of time than to the father, and that the court erred in ordering that his property be posted as security.

At the time the mother filed her petition for sole custody, there was in effect a judgment signed November 7, 1979, granting each parent custody for six months of each year with reasonable rights of visitation. Maxine had never had custody of Cory for a six-month period. Cory lived primarily with his father and would visit his mother overnight or for several days at a time. The father presented a plan seeking to continue that arrangement. He later submitted another plan calling for the parents to have Cory for alternating seven-day periods.

The judgment of the trial court granting joint custody orders that Maxine have physical custody during the school year and Kenward have physical custody during the summer months. The non-custodial parent is granted visitation rights on the second and fourth weekend of every month. The child will spend holidays alternately with each parent. Each parent shall be a party to all decisions affecting the health, education and welfare of the child.

We do not believe the trial judge abused his discretion. The court in Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983) stated:

“We interpret ‘joint custody’ to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child’s life—e.g., education, medical problems, recreation, etc. It’s obvious no plan, with or without ironclad guidelines, could possibly resolve the infinite number of conflicts which can and will arise between divorced parents in their quest to share their child’s life. It’s a fact of life that when parents battle over their children, judges are cast as ad hoc parents. But the legal bottom line remains the same—our only concern is the best interest of the child.
* * * * * *
“We don’t interpret joint custody to mean a fifty-fifty sharing of time. Each ease will depend on the child’s age, the parents’ availability and desires, and other factors.”

Here each parent has physical custody of the child for a portion of the year, although there is not a fifty-fifty sharing of time. Giving one parent custody for the entire school year is not an abuse of discretion and has been upheld as a valid joint custody plan. Plemer v. Plemer, supra; Krotoski v. Krotoski, 454 So.2d 374 (La. App. 4th Cir.1984). In addition, the principal of the school Cory attends testified she would question having the child change homes during the school year.

To modify a joint custody order it must be shown that the best interest of the child requires modification of the order. LSA-C.C. art. 146(E). Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972). The trial court, in its minute entry of September 29, 1983, indicated it used the standard of the best interest of the child in deciding custody. Appellant has not shown that the trial court erred in its disposition of the case or abused its discretion. We will not disturb its decision on custody.

The second issue is whether the trial court had authority to order that Kenward Hebert’s property be posted as security for his performance of the trial court’s judgment. The judgment states:

“IT IS FURTHER ORDERED, ADJUDGED AN DECREED that neither party shall remove the minor child, CORY HEBERT, from the jurisdiction of this court without prior court approval. Failure to abide by this order will be considered contempt of court.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the following described property of KEN-WOOD JAMES HEBERT is hereby received by this court in favor of MAXINE MARIE BAUDOIN, as security for KENWARD JAMES HEBERT’S faithful compliance with all of the terms of this judgment and that in the event of his failure to comply with the terms of said judgment, said property may be seized and sold by the Vermilion Parish Sheriff and the proceeds realized from said sale shall belong to MAXINE MARIE BAU-DOIN:”
(Description omitted)

The primary purpose of this order was to assure that the child not be removed from the state. The father had removed the child to California at one time.

We have found no authority for a court to require the posting of security to assure compliance with a custody judgment, and no authority has been cited to us. Nevertheless, we hold that the court in this case was authorized to impose such a protective order under Art. 191 of the Code of Civil Procedure. The article provides:

“A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”

We think it is settled that the power of a court to enforce its lawful orders is inherent. While we rely on our own codal authority just referred to, we note that the application of that authority which we make is in line with the practice in other states.

The matter of requiring security in custody cases is stated as follows in American Jurisprudence, Second Edition under the heading of “Divorce and Separation,” in Section 973, 24 Am.Jur. 959:

“Frequently, in divorce cases where the custody of children is awarded to one parent, he or she is required to give security not to remove them from the state. Or, if the court permits the removal of a child from the jurisdiction, it may require the custodian to execute a bond conditioned upon a return of the child to the jurisdiction in accordance with the orders of the court.
“The question whether such security shall be exacted lies within the discretion of the trial court. The court may refuse to require security if there is nothing to show that it is necessary. If, on the other hand, there is a fair suspicion of real danger that the custodian of a child may remove it from the state or from the jurisdiction of the court, the court may require a reasonable security to insure against such removal. Moreover, the court, when awarding custody to a mother who plans to live with her parents in another jurisdiction, may require her to furnish a bond conditioned that she will not attempt to modify the order in a court outside the divorce state, this being a device to secure the return of the child; and the court is warranted in exacting such a bond where the mother is an emotionally immature, obstinate woman who has taken the child out of the state at least once without the knowledge or consent of the father.
“The court may require that a person who has the right of visitation shall post a bond for the return of the child to the possession of the custodian promptly at the end of any visitation, and the discretionary power to exact such a bond is properly exercised where the one having visitation rights has twice removed the child from the jurisdiction surreptitiously.” (Footnotes omitted.)

See also 15 A.L.R.2d 470, Sec. 12; 88 A.L.R.2d 208, Sec. 17[a]. Cf. Sanders v. Sanders, 1 Ark.App. 216, 615 S.W.2d 375 (1981); Langley v. Denton, 263 Ark. 904, 568 S.W.2d 19 (1978), and Herring v. Morton, 248 Ark. 718, 453 S.W.2d 400 (1970).

As we consider the matter of requiring the giving of security by appellant to be within the discretion of the trial court and finding no abuse of this discretion, we affirm the action of the trial court in this regard.

Accordingly, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs.


author: DOMENGEAUX, Judge.

text:
    John PERKINS, Plaintiff-Appellant, v. O’NEAL’S FEEDERS SUPPLY, INC., Defendant-Appellee.
    No. 84-99.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    George & George, Ltd., Vincent J. deSal-vo, Baton Rouge, for plaintiff-appellant.
    Bradley, Wallace & O’Neal, Martha O’Neal, DeRidder, for defendant-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

Plaintiff John Perkins filed this suit against defendant, O’Neal’s Feeders Supply, Inc., to recover damages resulting from the contamination of his herd of cattle by chronic fluoride toxicosis allegedly caused by O’Neal’s negligence. The defendant filed an exception of prescription of one year. The trial court sustained the exception and dismissed plaintiffs suit.

Perkins had been in the dairy farm business for a number of years. Some time in 1973 plaintiff began purchasing the feed for his cattle from defendant, with the last sale being in April of 1979. Over a period of time, plaintiff noticed a loss of milk production, lameness in some of his herd, and an increasingly high death rate. In August of 1978 the Louisiana State University Cooperative Extension Service diagnosed plaintiffs herd as suffering from chronic fluoride toxicosis. On June 27, 1983, plaintiff filed this suit claiming that the feed purchased from the defendant contained fluoride or other substances which caused the damage to his herd. Subsequently defendant filed the aforementioned peremptory exception of prescription, which was heard and sustained resulting in the dismissal of plaintiff’s suit at his costs.

On appeal plaintiff claims that his cause of action is founded in contract and not redhibition. It is thus his contention that the ten year prescriptive period of La.C.C. 3544 is applicable to his claim and not the one year prescriptive period of La. C.C. 2534. For this proposition plaintiff cites a number of cases including the following: Mabry v. Midland Valley Lumber Company, 47 So.2d 673 (La.1950); Victory Oil Company v. Perret, 183 So.2d 360 (La. App. 4th Cir.1966), writ refused, 184 So.2d 735 (La.1966); and Henderson v. Leona Rice Milling Company 160 La. 597, 107 So. 459 (1926). We distinguish these cases. All of them hold that a plaintiff may recover damages for breach of contract when the product received is of a lesser quality than the product contracted for. In none of those cases was the product “defective” or not fit for the purpose intended. The products delivered were simply of a lower grade or quality.

The feed delivered to plaintiff in the case at hand was not merely of a lower quality or grade but rather was unquestionably defective. It contained poisonous substances which made it unfit to feed cattle, i.e., unfit for the purpose intended. Thus plaintiffs claim is one for damages resulting from a defective product and is founded in redhibition. See Lemoine v. Avoyelles Farmers Co-op., 307 So.2d 762 (La.App. 3rd Cir.1975). In Lemoine, plaintiff claimed damages to his swine herd were caused by molded food sold to him by the defendant. This Court held plaintiff's claim to be one in redhibition subject to the one year prescriptive period of La.C.C. Art. 2534. See also Duplessis v. Vulcan Materials Company, 359 So.2d 702 (La.App. 1st Cir.1978).

We find plaintiff’s claim to be one in redhibition and is subject to a one year prescriptive period. Consequently the trial court was correct in dismissing plaintiff’s petition.

It is clear that redhibitory actions prescribe one year after the sale if the seller is in good faith. La.C.C. Art. 2534. Redhibitory actions prescribe one year after the discovery of the vice if the seller is in bad faith. La.C.C. Art. 2546. Under these articles suit must be brought within one year, at the latest, from the date of the discovery of the defects. Tidewater, Inc. v. Baldwin Lima Hamilton Corporation, 410 So.2d 355 (La.App. 4th Cir.1982).

At the very latest plaintiff here was fully aware that the defective feed caused the damage to his herd by March of 1979. Contained in the record is a letter from Mr. Perkins’ attorney dated March 28, 1979, in which demand is made upon O’Neal’s Feeders Supply for plaintiff’s damages. Nevertheless this suit was not filed until June 27, 1983. The trial court properly applied the one year prescriptive period of La.C.C. 2534 to this redhibitory action.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.

      . See also Harkins v. Howard Lumber Co., Inc., 460 So.2d 772 (La.App. 3rd Cir.1984) wherein we held the plaintiff was entitled to recovery on a breach of contract theory because the defendant had delivered to him redwood siding of a lower grade than that contracted for.


author: KING, Judge.

text:
    James Leon SWEET and Cynthia Nadine Sweet, Plaintiffs-Appellants, v. C.B.G. PONTIAC-BUICK-OLDS-GMC, INC., et al., Defendants-Appellees.
    No. 84-107.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Marion Overton White of White & Pitre, Opelousas, for plaintiffs-appellants.
    Brame, Bergstedt & Brame, Joseph Brame, Lake Charles, for defendants-appel-lees.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

Plaintiffs-homeowners, James Leon Sweet and his wife, Cynthia Nadine Sweet, filed this suit against defendant-lessees of an adjoining piece of property, C.B.G. Pontiac-Buick-Olds-GMC, Inc., and defendant’s insurer, seeking to recover damages for flooding of their home. At trial, upon conclusion of plaintiffs’ evidence, the trial judge granted defendants’ motion for dismissal of the suit, pursuant to LSA-C.C.P. Art. 1672(B), and ordered plaintiffs’ suit dismissed, with prejudice. The plaintiffs have appealed. We affirm.

The issue presented on appeal is whether the trial court erred in determining that the plaintiffs had shown no right to relief upon the facts and the law at the trial of the matter.

The record shows that in 1979 defendants leased some land on Highway 171 in DeRidder, Louisiana to build a car dealership. The rear of this leased property adjoins the rear of plaintiffs’ property, on the east, and the side of plaintiffs’ property on the south, and is generally elevated above plaintiffs’ property. In order to build its car dealership, defendants found it necessary to clear and level the leased land. The work to do this consisted mainly of clearing out trees and spreading dirt and gravel out to level off the leased land. Plaintiffs allege that shortly after the work was finished on the defendants’ leased land, the plaintiffs’ house began to flood after heavy rainfalls.

The plaintiffs contend that, in removing trees and putting dirt on their leased property, the defendants altered the natural drainage and, as a result of that alteration, the flow of water off defendants’ property was increased causing plaintiffs’ house to flood when it rained.

Plaintiff, James Sweet, testified that he had lived in his home since approximately 1975 and that it was not until 1979, after the defendants had improved their leased land, that he began experiencing problems with flooding. He stated that his house only flooded when there was a heavy rainfall. Further, plaintiff testified that he knew from the time he moved in his home that his property sloped down from its rear to its front on the street, that the rear of his property was higher than the front of his property, and that the defendants' leased property was higher than his property. Finally, plaintiff testified that he had no knowledge of whether the prior owner of his property had ever had any problems with flooding.

Stephen Hebert, an expert in civil engineering and land surveying, stated in his deposition admitted in evidence that he had conducted a survey of the properties involved. From this survey he made a topographical map of the area which was also introduced into evidence. This topographical map showed some sloping of the property from an east to west direction, from the area of the defendants’ dealership westward to the plaintiffs’ home, but Hebert testified that he had no knowledge of the elevations of the plaintiffs’ and defendants’ properties prior to the construction by defendants of its place of business.

Reverend Elbert Cooksey, a carpenter-contractor, testified on behalf of the plaintiffs as to the cost of repairing the house, but he also stated that, by simple observation, a person could tell that the plaintiffs’ land was too low as compared to the surrounding lots.

Various other witnesses testified on behalf of the plaintiffs. They all stated that the plaintiffs’ house never flooded before defendants built the car dealership, but none of the witnesses knew whether the house and land had flooded prior to the plaintiffs’ purchasing their house and land.

Where recovery is based on the obligation of an owner under LSA-C.C. Arts. 655 and 656, as in any case where recovery is sought based on an owner’s use of his property that causes damage to a neighbor, the injured party must establish causation between the defendant-owner’s acts or omissions and the damage resulting from the defendant-owner’s acts or omissions. Patterson v. Garic, 411 So.2d 1091 (La.App. 4th Cir.1982); South Central Bell Tel. Co. v. Hartford Ace., 385 So.2d 830 (La.App. 1st Cir.1980); Russel v. Windsor Properties, Inc., 366 So.2d 219 (La.App. 3rd Cir.1978).

This case was decided by the trial court at the time of a trial on the merits, after conclusion of all of the plaintiffs’ evidence, on defendants’ motion for dismissal of plaintiffs’ suit. In considering such a motion the trial judge must weigh and evaluate all the evidence presented up to that point in the trial and may grant a dismissal if the plaintiff has not established proof by a preponderance of the evidence of the facts essential to relief. Standard Mach., Etc. v. So. Pac. Transp. Co., 410 So.2d 842 (La.App. 3rd Cir.1982), writ den., 414 So.2d 377 (La.1982). See LSA-C.C.P. art. 1672(B). The trial judge has much discretion in determining whether or not to grant a motion for dismissal. Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir.1982).

The trial judge in his oral reasons for judgment stated in part:

“Your evidence, and I’ve looked at my notes and tried to recall what has been testified to as accurately as possible, just simply does not establish as required by law that the natural drainage in the area was changed by CBG or that the drainage was made more burdensome.
* * * * * *
So, in a final analysis, it is apparent that you have had some water problems on occasions without the Court being able to tell how many occasions or what the circumstances of the weather were since CBG built their building. But the evidence simply is not there to show that it was due to the activities of CBG. It may be that it was, but the evidence does not establish that in my opinion, and that!s where the case breaks down.”

The record shows that various witnesses testified on behalf of the plaintiffs, but the only fact that was actually proven was that the plaintiffs’ house flooded on occasion after defendants’ improvements were made. There was no evidence as to the relative elevations of the properties before the defendants’ improvements, the flow of water before work was done by defendants, nor was there any evidence as to when the flooding actually occurred, how often it occurred, or how heavy the rainfalls were when such flooding occurred. The plaintiffs’ expert witnesses offered no testimony or evidence which would prove that defendants’ work had altered the natural drainage or was responsible for the flood damage of plaintiffs. Therefore, we find that the plaintiffs have failed to prove facts, as required by law, that the natural drainage in the area was changed by the work of defendants or that the drainage was made more burdensome by the work of the defendants. Simply stated, plaintiffs have failed to prove causation between defendants’ improvements on their leased land and the flood damage sustained by plaintiffs.

For the foregoing reasons, the judgment of the trial court granting the defendants’ motion for dismissal of plaintiffs’ suit, with prejudice, is affirmed. Costs of this appeal are assessed to the plaintiffs-appellants.

AFFIRMED.

      . LSA-C.C. art. 655 reads as follows:
      "An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow"
      LSA-C.C. art. 656 reads as follows:
      “The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”

      . LSA-C.C. art. 667 reads as follows:
      "Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him."


text:
    Jacky Wayne PACE, et al., Plaintiffs and Defendants-in-Rule Appellee, v. Christine McMANUS, Defendant and Plaintiff-in-Rule Appellant.
    No. 84-108.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoch-es, for defendant and plaintiff-in-rule appellant.
    Michael J. Bonnette of Bonnette & Brun-son, Natchitoches, for plaintiffs and defendants-in-rule appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

Christine McManus appeals from a judgment denying her rule to enforce a compromise settlement made in connection with suit filed against her by Jacky Wayne Pace and his wife, Bonnie Franson Pace. We agree with the result reached by the trial court and affirm.

FACTS

The subject of this litigation is a piece of property originally purchased by four parties: Mrs. McManus, her former husband, Elton Ray Pace, her brother-in-law, Jacky Wayne Pace, and his wife, Bonnie. Jacky and Bonnie Pace filed suit against Mrs. McManus claiming that she failed to pay her share of the semi-annual payments of $1,729.14 on the property. The suit alleged that the payments were made by Jacky and Bonnie Pace, and they sought reimbursement for payments made on behalf of Mrs. McManus.

On August 31, 1983, Mrs. McManus filed a Rule to Enforce Compromise Settlement relying on a number of letters between her attorney, Mr. Arthur, and the Paces’s attorney, Mr. Harrington. All but one of the letters was written by Mr. Arthur to Mr. Harrington. One letter was from Mr. Harrington to Mr. Arthur, and one of the letters from Mr. Arthur has a handwritten reply from Mr. Harrington on it. Mrs. McManus takes the position that these letters show that the parties reached a compromise agreement in which Jacky Pace agreed to pay her $7,000 in cash in exchange for a quitclaim deed for all of her interest in the property.

The trial court found that there was no agreement because the terms of payment were not specified, and the rule to enforce the compromise agreement was denied. We affirm.

APPLICABLE LAW

Mrs. McManus takes the position that the exchange of letters between the attorneys is sufficient to constitute a written settlement agreement between her and the Paces as required by LSA-C.C. art. 3071. The letter by Mr. Arthur dated February 15, 1983 which purportedly sets out the terms of the agreement reads as follows:

“This will confirm our settlement based upon Jack paying Mrs. McManus the sum of $7,000, in cash, exchanged for a quit claim deed of all of her interest in the real estate. In consideration of this, the parties will release one another from

any further accounting and claims against one another in connection with the land; and further, Jack will dismiss this suit, with prejudice, at his cost. Mrs. McManus will receive a net of $7,000.

“Please be sure the sales instrument you prepare is without any warranty of any type, even for return of the purchase price, but Mrs. McManus will convey all of her rights and actions of warranty she may have against preceding vendors. Also, please include in the instrument a settlement of the claims, and recite that another consideration is the dismissal of the Pace suit, with prejudice, at his cost.”

In a subsequent letter dated March 16, 1983 from Mr. Arthur questioning the delay in the matter, there appears a handwritten note by Mr. Harrington which reads:

“I have written Jack twice & spoken to his wife once, but he hasn’t called me so that we can wrap this up.”

There is further correspondence by Mr. Arthur to Mr. Harrington asking about the delay in the matter. The only letter written by Mr. Harrington to Mr. Arthur was dated April 19, 1983, and reads:

“I have your letter of April 13, 1983. You are correct that we reached a settlement in this case. I have been waiting on Jack to contact me so that we can conclude the matter, but I have not heard from him. I understand that you are going to take the matter on to hearing if you don’t hear from us soon.”

Further correspondence indicates that Jack Pace was negotiating to pay the $7,000 purchase price in installments, and Mrs. McManus expected payment to be made in cash. Her position is that the terms of payment were set out in Mr. Arthur’s letter of February 15, 1983.

We do not find that the correspondence between the attorneys introduced into evidence constitute a written offer and acceptance of a compromise in this case. The letters in question refer exclusively to Jacky Pace; there is no reference to the other plaintiff in the initial suit, Bonnie Pace. We also find that the two communications by Mr. Harrington to Mr. Arthur clearly indicate that the Paces had not yet consented to the proposed settlement.

The proposed settlement constitutes a transfer of immovable property, and as such, must meet the requirements for a sale of immovable property. Such a contract must be in writing, must be signed by the buyer and seller, and if an agent executes the contract on behalf of one of the parties, his authority must be express and in writing. Rebman v. Reed, 335 So.2d 37 (La.App. 4th Cir.1976), writ denied, 338 So.2d 699 (La.1976); see also LSA-C.C. arts. 2275, 2276, 2992 and 2997. There is no evidence before us of any written authority given either of the attorneys in this case, nor does the exchange of correspondence amount to a written contract signed by the buyer and the seller. The trial court correctly refused to enforce the proposed settlement.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant and plaintiff-in-rule-appellant, Christine McManus.

AFFIRMED.


text:
    PETROLEUM FLUIDS CONSULTANTS, INC., Plaintiff-Appellee, v. DRESSER INDUSTRIES, INC., Defendant-Appellant.
    No. 84-109.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Scofield, Bergstedt, Gerard, Mount & Veron, J. Michael Veron, Lake Charles, for defendant-appellant.
    Nick Pizzolatto, Jr., of Caskey & Pizzo-latto, Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Defendant, Dresser Industries, Inc. (hereafter Dresser), appeals the dismissal of its reconventional demand against Petroleum Fluids Consultants, Inc. (hereafter PFC). PFC sued Dresser to recover unpaid oil field services rendered by PFC to Dresser. Dresser filed a reconventional demand claiming a setoff for the value of equipment loaned to PFC but not returned. The trial court awarded PFC $4,770 on its contract claim against Dresser and dismissed Dresser’s setoff claim concluding that Dresser failed to carry its burden of proof that oil field equipment had been loaned to PFC. Dresser appeals asserting that the trial court erred in disallowing its setoff claim for equipment loaned to PFC. The issues on appeal are: (1) whether Dresser loaned oil field equipment to PFC; and (2) if there was a loan for use, whether Dresser is allowed a setoff against PFC for the value of the equipment loaned but not returned. We affirm finding that the trial court’s determination was clearly supported by the record.

During early 1980 Occidental Petroleum Company contracted with Dresser to supply mud services to its oil well, West Drill No. 1. Because Dresser had no mud engineers available, it subcontracted with PFC to supply mud services to West Drill No. 1. PFC first supplied a mud engineer to West Drill No. 1 in March 1980.

Mud engineers are on-site consultants at oil rigs whose primary function is to monitor the chemical properties of the drilling fluid so that it conforms to the driller’s specifications. Mud engineers use a mud lab or mud kit consisting of various pieces of equipment, including a pH meter and a Baroid rheometer, to test the drilling fluid. The pH meter tests the pH of the drilling fluid, and the rheometer tests the viscosity, yield point, and gel strength of the mud.

PFC supplied mud engineering services to West Drill No. 1 from March 1980 to June 20,1980. The only mud engineer sent by PFC to the rig was David Malloy.

Sometime during late March, Dresser sent a mud kit to West Drill No. 1, and on June 20, 1980, Bruce Broussard, another mud engineer not employed by PFC, returned the mud kit without the pH meter and the rheometer. Dresser contends that PFC is liable for the loaned equipment that was not returned, and argues that the co-dal articles regarding loan for use require that the borrower bears the burden of establishing his freedom from causing the loss of the loaned articles.

It is well established that setoff is an affirmative defense which must be specifically pleaded and proven. Nat. American Bank of New Orleans v. Purvis, 407 So.2d 754 (La.App. 1st Cir.1981); Fontenot v. LaFleur, 281 So.2d 868 (La.App. 3rd Cir.1973), writ denied, 284 So.2d 336. The party asserting an affirmative defense has the burden of proving it by a preponderance of the evidence. Womack Bros., Inc. v. Equipment Rental Services, Inc., 399 So.2d 661 (La.App. 1st Cir.1981). A plaintiff in reconvention must establish the demands made to a legal certainty by a preponderance of the evidence. Monroe “66” Oil Co. v. Hightower, 180 So.2d 8 (La.App. 2nd Cir.1965).

Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when, taking the evidence as a whole, such proof shows that the facts sought to be proved is more probable than not. Hoffpauir v. State Farm Mut. Auto. Ins. Co., 427 So.2d 560 (La.App. 3rd Cir. 1983), writ denied, 435 So.2d 449; Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

A prerequisite for the application of the codal articles pertaining to loan for use is Dresser’s establishment by a preponderance of the evidence that it loaned PFC the pH meter and rheometer. Although Dresser specifically pleaded setoff, the trial court concluded that Dresser failed to establish with sufficient evidence such a loan to PFC. We find that the record fully supports the trial court’s conclusions of fact concerning this threshold question.

James Cooper, Dresser’s area supervisor of offshore operations, testified that the radio dispatcher for Occidental Petroleum Company, not PFC or its mud engineer, David Malloy, requested the mud kit by telephone. Cooper did not know if Malloy had the equipment and never saw him with Dresser’s testing devices. He further testified that Bruce Broussard, another mud engineer not employed by PFC, was on the oil rig along with 38 to 45 other workers.

Samuel J. Digiglia, Jr., the owner of PFC, testified that David Malloy was the only PFC mud engineer on West Drill No. 1, but Malloy and another mud engineer, not in the employ of PFC, alternated twelve hour shifts. Furthermore, PFC refused to pay Dresser for the pH meter and rheometer because PFC had not signed a delivery ticket, as is the custom in the oil field, making them responsible for the testing equipment.

Accordingly, we find the record supports that the trial court did not commit manifest error in concluding that the evidence failed to preponderate Dresser’s loan of the “mud kit” to PFC.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant, Dresser Industries, Inc.

AFFIRMED.