text:
    James B. EZELL, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 83-521.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Gaharan & Wilson, Donald R. Wilson, Jena, for plaintiff-appellant.
    Hudson, Potts & Bernstein, Jesse D. McDonald, Monroe, Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendant-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

This is a suit in redhibition filed by plaintiff, James B. Ezell, seeking rescission of the sale of a 1980 Chevrolet pickup truck along with damages for personal injuries and attorney’s fees. The defendants are General Motors Corporation, the manufacturer, and Windham Chevrolet Oldsmobile, Inc., the retail seller. Motors Insurance Company has intervened to recover all payments made to Ezell for property loss. Ezell alleges that a defect in the truck caused it to catch fire which resulted not only in the total destruction of the vehicle, but also in personal injuries to his person. The issue on appeal is whether plaintiff carried his burden of proof in establishing the existence of a defect.

On July 16, 1980, Ezell purchased a new 1980 Chevrolet Fleetside pickup truck from his local dealer, Windham Chevrolet, for a price of $5,850. Three months later, on October 16, 1980, the truck caught fire and was totally destroyed. During this three-month period between the purchase and the fire, the truck was not mechanically altered in any manner.

Ezell claims that he was driving on Fish Market Road in Jena, Louisiana, at about 35 miles per hour when he noticed smoke beginning to pour into the cab from underneath the dashboard. Shortly thereafter, the engine went totally dead. After the truck stopped, Ezell attempted to exit from the cab by using the driver’s door, but found it to be jammed. So, he then slid to the opposite end of the cab and exited through the passenger’s door, and in doing so, fell violently to the ground, landing on his neck and shoulder.

Ezell further claimed that he got up from the ground and ran to the nearby home of Mr. and Mrs. Sherman Golden. Mrs. Golden telephoned the fire department after Ezell informed them of his plight. Unfortunately, the fire truck did not arrive for about forty-five minutes, and only after Mrs. Golden telephoned a second time. Attempts to stop the fire were in vain.

Ezell’s truck was totally destroyed. In addition to the loss of the truck, he asserted that he was in the cab of the truck long enough to suffer severe smoke inhalation which has resulted in serious lung problems. Also, he claimed that the fall from the truck upon exiting resulted in a neck and shoulder sprain.

The defendants claim that the fire was due to arson, not to any defect in the manufacture or design of the truck. Also, they disputed Ezell’s claim to damages for personal injuries.

The trial judge rendered judgment in favor of the defendants. His ruling was based on several findings of fact:

(1) He found that the testimony of Ezell was not credible.
(2) He found that the defendants’ experts were better qualified than the plaintiff’s.
(3) He found that the defendants’ experts better tested and better examined the evidence than did the plaintiff’s.

From the judgment dismissing his claims, Ezell has appealed.

Redhibition is defined by LSA-C.C. Article 2520, as:

“... the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

In order to establish a prima facie case, a buyer must show that a non-apparent defect existed at the time of sale. LSA-C.C. Articles 2520 and 2530; Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3 Cir.1976). The eviden-tiary burden is that the proof must be more probable than not. Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975). He need not prove the underlying cause of the defect, but only that it existed. Gamble v. Bill Lowrey Chevrolet, Inc., 410 So.2d 1155 (La.App. 3 Cir.1981). The term “defect”, as contemplated in Article 2520, means a physical imperfection or deformity; or a lacking of necessary components or level of quality. Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8 (La.App. 3 Cir.1980).

Once the plaintiff establishes his prima facie case, the burden shifts to the defendant to show that he can somehow escape liability. Jordan v. Security Company, 425 So.2d 333 (La.App. 3 Cir.1982).

The trial judge did not, however, apply the normal “preponderance of the evidence” rule. Instead, he felt that the burden of proof rules as to fraud were applicable because, “The contentions by defendants that the fire was caused by an incendiary aceellerant [sic] are in effect charges of fraud ... ”.

Because fraud is never presumed, the burden of proof in fraud cases is well beyond a preponderance; exceptionally strong proof is required. Placid Oil Company v. Taylor, 345 So.2d 254 (La.App. 3 Cir.1977), writ refused, 347 So.2d 261 (La.1977). The defendants argue that the trial judge erred in applying this standard because it incorrectly placed the burden of proof upon themselves.

We do not, however, need to decide this issue because we agree with the trial judge that the defendants still prevail, even if the fraud standard is applied.

The record shows numerous inconsistencies in various statements made by the plaintiff. He changed his version of the story on several occasions when speaking with the various doctors who treated him. The plaintiff had also claimed injuries in the past on very unconvincing grounds. Finally, the expert and other eyewitness testimony did not correspond with the plaintiffs version.

Findings of fact regarding credibility must not be overturned unless clearly wrong. Bridges v. Reliance Insurance Company, 410 So.2d 1243 (La.App. 3 Cir.1982). We cannot say here that the trial judge was clearly wrong in finding that the plaintiff was not a credible witness.

Plaintiff presented the testimony of Dr. Robert Newell, an expert in the field of electrical engineering. Dr. Newell’s expertise was limited to that of electrical matters. His knowledge on the subject of origin of fires was based on his readings, attending of seminars, and engineering background. Dr. Newell opined that the fire was caused by a short in the positive battery cable. He could not, however, state whether the short caused the fire or whether the short came as a result of the fire.

The defendants’ experts included Roland Bottiglia, who has had extensive experience in investigating vehicle fires. He has been on GM’s engineering staff since 1969, but has been exclusively involved in vehicle fire investigations since April of 1981. He has personally investigated over fifty vehicle fires. The trial judge qualified Bottiglia, not only as an expert in mechanical engineering, but also as an expert in the cause and origin of fires.

After studying the vehicle and its history, reading the depositions of Ezell and Mr. and Mrs. Golden, personally speaking with the firemen, personally visiting the scene of the fire, personally examining the truck on two occasions for five or six hours, and conducting tests involving the shorting out of positive battery cables, Bottiglia concluded that the fire was not caused by any short in the battery cable as suggested by Dr. Newell, but was instead caused by arson. Bottiglia felt that the evidence showed that one fire originated in the cab and another in the engine compartment. The only way that both fires could have started in this manner and burn as they did, was by the means of an accelerant.

The defendants also presented Thomas Jackman, an expert in tbe field of analytical chemistry with special expertise in the analysis of fire debris. Jackman examined various samples of debris taken from the cab. After conducting atomic absorption tests on the debris, he found unusually high traces of lead, which indicated to him that leaded gasoline may have been used as the accelerant.

To rebut Jackman’s testimony, the plaintiff called Dr. Harry Mosely, an expert in the field of chemistry. Dr. Mosely criticized Jackman for not testing for tin, which would have indicated that the excessive lead tracings were due to the solder which was present in the cab. Dr. Mosely did concede that the atomic absorption test is a very good test for lead and that Jackman’s methods were fine. Dr. Mosely also admitted that he could not state that he felt that the test results did not reflect the presence of an accelerant.

The weight to be given testimony of experts is largely dependent on their qualifications and facts upon which their opinions are based. Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La.1973). Expert testimony is weighed by the trier of fact in the same manner as other evidence. Smith v. Lumbermen’s Mutual Casualty Company, 414 So.2d 1281 (La.App. 3 Cir.1982), writ denied, 417 So.2d 367 (La.1982). Because we cannot find that the trial judge was clearly wrong in believing the defendants’ experts rather than plaintiff’s experts, we affirm.

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

All costs of this appeal are to be taxed against plaintiff-appellant.

AFFIRMED.

      . The seller may, for example, show that the defect was not one of manufacture, or that there has been some intervening abuse, alteration or other act which relieves the manufacturer and/or seller of responsibility for the defect. Rey v. Cuccia, 298 So.2d 840 (La.1974).


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    Mrs. Dewey F. BLADES, Jr., et al., Plaintiffs-Appellees, v. Edward Mike DAVIS d/b/a Tiger Oil Company, et al., Defendants-Appellants.
    No. 83-522.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.

      Allen, Gooch, Bourgeois, Breaux & Ro-bison, Arthur I. Robison and Sera H.R. Russell, III, Lafayette, for defendants-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Kirk A. Bergeron, Lake Charles, for plaintiffs-appellees.
    Hunt, Godwin, Painter & Roddy, John S. Hood, Lake Charles, for intervenor-appel-lee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

This is a workmen’s compensation case for death benefits claimed by the decedent’s wife, Mrs. Dewey F. Blades, Jr., and four minor and dependent children, namely, Michael W. Blades, Allison D. Blades, Patrick Blades and Rebecca Blades, against Argonaut Insurance Company, the workmen’s compensation insurer of Edward Mike Davis d/b/a Tiger Oil Company, the employer of the deceased, Dewey F. Blades, Jr. The trial court found that workmen’s compensation death benefits were due Mrs. Blades and the children, and further found that although Rebecca and Patrick were majors, they were still dependents. The trial court rendered judgment against Argonaut in the sum of $95 per week, commencing May 11, 1977.

Argonaut brings this appeal contending that the trial court erred in awarding workmen’s compensation death benefits by finding a causal connection between symptoms of heart disease which occurred on the job and the subsequent heart failure in the hospital.

The plaintiffs answered the appeal maintaining that the trial court erred in not finding Argonaut arbitrary and capricious, and failing to award penalties and attorney’s fees.

FACTS

Prior to Mr. Blades working for Tiger Oil Company, he was employed by Shell Oil Company. While with Shell he sustained two heart attacks, the first occurring after he became upset over a conflict with his boss. The record does not reflect the circumstances surrounding the occurrence of the second heart attack.

Mike Davis, owner of Tiger Oil Company, offered Mr. Blades a position with Tiger Oil as geophysicist for more money and overriding royalties in all oil, gas and mineral leases acquired as a result of Mr. Blades’ efforts. Mr. Blades accepted Mr. Davis’ offer and worked for Tiger Oil from 1974 until his death on May 11, 1977. Mrs. Blades and their four children were actually and wholly dependent upon Mr. Blades for their support. Rebecca, a major child, was attending college. She was dependent upon her father for educational and living expenses. Patrick, also a major, suffers from a birth defect known as Down’s Syndrome. His physical handicaps and mental retardation render him incapable of providing his own support.

On May 3, 1977, while on a business trip in Tulsa, Oklahoma, Mr. Blades suffered severe chest pains while running to board his employer’s airplane. That same day he was admitted to The Methodist Hospital in Houston, Texas for examination by Tiger Oil Company’s physician, Dr. Michael E. DeBakey. A series of tests conducted between May 3, 1977 and May 7, 1977 revealed that Mr. Blades suffered from arth-erosclerotic occlusive heart disease which consisted of 95% blockage in his right coronary artery and approximately 100% blockage in his left coronary artery. Dr. DeBa-key advised Mr. Blades that he needed double by-pass heart surgery.

Mr. Blades went home to Lake Charles to take care of personal business and returned to Methodist Hospital on May 9, 1977. Dr. DeBakey and a team of physicians performed open heart surgery on May 10, 1977. Mr. Blades died in the recovery room on May 11, 1977 of massive heart failure.

CAUSATION

To recover death benefits, plaintiffs must establish that Mr. Blades received a personal injury by accident arising out of and in the course of his employment. Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975). In workmen’s compensation cases, LSA-R.S. 23:1021(1) defines an accident as:

.. an unexpected or unforseen event happening suddenly or violently, with or without human fault, and producing at the time objective symptoms of an injury. ”

The record is clear that Mr. Blades suffered an accident while on a business trip with his employer, Mike Davis. He was running to board the company plane and had stopped to catch his breath. Mr. Davis was rushing him and telling him to get on the plane. Mr. Blades began running again when a severe angina attack hit him. From the airport he was taken to The Methodist Hospital.

Appellants argue that since Mr. Blades died of heart failure and not angina, there is no causal connection between Mr. Blades’ employment and his death. We disagree.

Causation in heart disease cases has thoroughly been discussed by our Supreme Court in the following cases: Bertrand v. Coal Operators Casualty Company, 221 So.2d 816 (La.1968); Roussel, supra; Guidry v. Serigny, 378 So.2d 938 (La.1979); Adams v. New Orleans Public Service Inc., 418 So.2d 485 (La.1982); Guidry v. Sline Indus. Painters, Inc., 418 So.2d 626 (La.1982); Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119 (La.1982). Using these cases as our guideline to determine causation issues, we find causation was clearly established.

Mr. Blades had an atherosclerotic occlusive heart disease and had two heart attacks before he went to work for Tiger Oil. Mr. Davis was informed of Mr. Blades’ heart condition. It is well settled that a worker’s pre-existing condition does not bar his recovery. Guidry v. Serigny, supra; Roussel, supra; Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829 (La.1982); Guillory, supra; Gipson v. Dresser Indus. Valve Ops., Etc., 428 So.2d 1338 (La.App. 3rd Cir.1983), writ refused 433 So.2d 161 (La.1983); Roberts v. Sonic Drive In of Marksville, 441 So.2d 24 (La.App. 3rd Cir.1983), writ refused 444 So.2d 121 (La.1984). The employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Guillory, supra.

Dr. DeBakey testified by way of deposition. He explained that angina is pain and a symptom. It was his opinion that physical and mental stress are associated with the symptoms and that Mr. Blades needed the double by-pass heart surgery for the relief of pain and survival.

The accident Mr. Blades sustained was disabling. He was hospitalized and ultimately underwent major heart surgery. Our jurisprudence holds that: “Where there is proof of an accident and of the following disability without any intervening cause it is presumed that the accident caused the disability.” Allor, supra; Guillory, supra; Gipson, supra. Appellants argue that since Mr. Blades died in the hospital and not on the job, there was no causal connection between his death and his employment. This argument ignores the undisputed facts that Mr. Blades was hospitalized and had the surgery because of an on the job accident. In Ebarb v. Insurance Co. of North America, 424 So.2d 1266 (La.App. 3rd Cir.1982), writ refused 429 So.2d 138 (La.1983), this court, citing Guidry v. Sline Industrial Painters, Inc., supra, as authority, allowed death benefits where the employee, died of a heart attack in the hospital shortly after surgery to his hand. In the present case we do not find the line of causation broken because Mr. Blades died in the hospital rather than on the job.

The trial court determined that Mr. Blades’ employment was stressful. We agree. He had to find oil for his company, a task that required physical as well as mental exertion. Based on his suggestions, the pursuit to find oil at a particular site would become an expensive gamble for his company. The stress from these activities was compounded unnecessarily by the conduct of his employer, Mr. Davis.

It is apparent from the record that Mr. Davis was of a tempermental nature. The memorandums he wrote to his employees show that he wanted them to fear him. In one memorandum addressed to landmen, geologists, geophysicists, engineers or to whom it may concern, he concluded it by saying:

“Do not speak to me when you see me. If I want to speak to you, I will do so. I want to save my throat. I don’t want to ruin it by saying hello to all of you sons-of-bitches.

In a memorandum addressed to all monthly salaried personnel, he commented:

“There is one thing that differentiates me from my employees. I am a known son-of-a bitch, and I care to remain that way.

He would call Mr. Blades at home at 1:00 A.M. and other odd hours to have lengthy discussions with him. If Mr. Blades disagreed with him, Mr. Davis would threaten to fire him.

A few months before Mr. Blades’ death, Mr. Davis began threatening to fire him if he would not renegotiate the employment contract leaving out the overriding royalty clause. Mr. Blades would not agree to give up his overriding royalty but Mr. Davis continued to pressure him to do so. The employees even talked about the stress Mr. Blades was enduring because it was so apparent.

Mr. Blades continued to be under pressure from Mr. Davis until his death. Mr. Blades did not want to submit to surgery. An employee of Tiger Oil, Mrs. Carte, testified that Mr. Davis ordered Mr. Blades to have the surgery or he would be fired.

Mr. Blades was subject to angina pector-is attacks. In the last few months before his death, the attacks became more frequent and correlate with the extra stress he was subjected to by his employment. Mrs. Blades testified that the phone calls during the middle of the night from Mr. Davis as well as the threats to fire Mr. Blades were upsetting and causing great stress upon her husband.

We find that the appellees have proven that the death of Mr. Blades was causally related to his employment.

PENALTIES AND ATTORNEY’S FEES

The trial court did not award penalties and attorney’s fees because in its opinion there was a serious dispute as to coverage under the interpretation of the workmen’s compensation law as it stood at the commencement of this action. We disagree. The present action commenced in 1978. At that time the leading case of causation in heart disease cases was Bertrand, supra, a 1969 case. Bertrand is cited and its language used in the more recent cases from our Supreme Court. A heart accident must be causally related in part, however slight to the employment, is no new or novel approach to applying compensation law. Guidry v. Sline Industrial Painters, Inc., supra.

In the present case, it is not disputed that Mr. Blades suffered an accident in the course of and arising out of his employment. It is not disputed that as a result of Mr. Blades’ accident, he was hospitalized and had to undergo major heart surgery. The appellants denied plaintiffs death benefits on the contention that there was no causal connection between Mr. Blades’ accident and his death. We find the facts and evidence of causality in this case make the appellant’s refusal to pay death benefits arbitrary and capricious.

The purpose of the penalty provision of the workmen’s compensation statute is to discourage an attitude of indifference to the injured employee’s condition. Antilley v. Sentry Ins. Co., 426 So.2d 1370 (La.App. 3rd Cir.1983). Therefore, we find the record supports an award of reasonable attorney’s fees in the sum of $5,000.00. Penalties are granted at 12% on all past due benefits plus legal interest from the day each unpaid benefit was due.

For the foregoing reasons, the judgment of the trial court is amended to include $5,000 in attorney’s fees and penalties in accordance with law, and to provide for legal interest from date of judicial demand on penalties and attorney’s fees, and is affirmed as amended. The defendant-appellant is assessed with all costs of the trial court and for all costs of this appeal.

AMENDED AND AFFIRMED AS AMENDED.

      . Plaintiff, Rebecca Blades, a major dependent child, filed a petition of intervention. Thereafter she entered into a "Compromise Agreement” with her mother, Mrs. Blades. Rebecca then filed a petition asking the trial court to withdraw and dismiss her petition of intervention, which the trial court granted by an order signed on June 27, 1979. The trial on the merits was held on February 25, 1982. Rebecca answered the appeal as an intervenor asking for an award of penalties and attorney’s fees. The record is clear that the intervention proceedings were withdrawn and dismissed long before the trial. Therefore, her status as intervenor was terminated and she is without standing to answer this appeal.


author: CUTRER, Judge.

text:
    Doris K. DORTLON, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, et al., Defendants-Appellants.
    No. 83-523.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.

      John S. King and Robert T. Talley, Baton Rouge, for defendants-appellants.
    Edwin L. Blewer, Jr., Shreveport, Charles W. Seaman, Natchitoches, for plaintiff-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   CUTRER, Judge.

This is an appeal from a trial court judgment which awarded Doris Dortlon the sum of $17,439.23 for damages she sustained when her vehicle struck some potholes in the highway. The trial court rendered judgment, in solido, against Missouri Pacific Railroad Company (MoPac) and the Louisiana Department of Transportation and Development (DOTD). DOTD appeals that judgment. We affirm.

On June 6, 1981, the plaintiff was driving her car along a street in Natchitoches, Louisiana. The street, a part of the highway system, was traversed at several points by railroad tracks/spurs. Plaintiff was crossing one of those spurs traveling south when her right front tire struck some large potholes. The resulting impact bent both the right front wheel and the car’s frame. The plaintiff also suffered physical injuries.

DOTD does not contest the plaintiffs right of recovery nor the amount of that recovery; rather, the argument is posited that MoPac should be solely liable for the plaintiff's injuries, as the damage was caused by a pothole between the rails of the track for which MoPac alone was responsible.

The only issue before us is whether the trial judge was clearly wrong in his finding that the plaintiffs injuries resulted from her car striking potholes, both between the rails and outside the rails.

At trial two employees of DOTD testified that DOTD was responsible for maintaining the road surface of the street in question up to the rails, but not including the area between the rails. Therefore, under the “strict liability” theory of LSA-C.C. art. 2317 as interpreted by our courts, DOTD woüld be liable for the damage caused by a pothole in the care or custody of DOTD. Alleman v. State, Dept. of Highways, 416 So.2d 272 (La.App. 3rd Cir.1982), writ den., 421 So.2d 907 (La.1982). Likewise, MoPac is strictly liable for those potholes within its care or custody — i.e., those located between the rails.

The testimony at trial was somewhat conflicting regarding the number of potholes and their location. However, after hearing all of the testimony, the trial judge chose to accept the testimony of the witnesses who testified that there were two holes involved in the accident — one between the tracks and one outside. In our function as a reviewing court, we are ever mindful of the great discretion afforded the trier of fact regarding questions of witness credibility. Ewing & Salter, Inc. v. Gafner Automotive, 392 So.2d 762 (La.App. 3rd Cir.1980), writ den., 396 So.2d 933 (La.1981); Dupre v. South Central Bell Telephone Company, 318 So.2d 145 (La.App. 3rd Cir.1975).

The plaintiff testified that she was unsure where the pothole was in relation to the tracks. However, Officer Larry Vaughn of the Natchitoches City Police, who investigated the accident, testified unequivocally that there were two holes — one outside the tracks and one inside. He stated that the holes were approximately the same size, being ten to twelve inches deep and twelve by eighteen inches in area. Officer Vaughn was of the opinion that the recent rain water flowing down the rails had washed the soil from beneath the blacktop causing the cave-in, which resulted in the two holes. Officer Vaughn also said that the holes were in the rut of the road “where cars mainly travel.” The parties also stipulated that Officer Vic Jones, another investigating officer, would testify to the same facts as those testified to by Officer Vaughn.

The city worker, Clifford Walker, Jr., called initially to repair the pothole on the same day of the accident, testified that there was only one large pothole (one to two feet long and six to eight inches deep) and that it was “between the two tracks” and where the right tire of a southbound vehicle would travel. Walker stated that there were several smaller potholes nearby but that the one he repaired was the only one of significant size.

The plaintiff’s stepfather, Allen Boudoin, who removed the plaintiffs car with a tow truck, testified that he saw only one pothole and it was between the rails. According to him, the hole was eight to ten inches deep and two feet wide.

The last witness to testify regarding the potholes was Filmore Evans, a laborer for MoPac, who had also been summoned to repair the hole. When he arrived at the scene, Walker had nearly completed filling one pothole. Evans testified that he patched another pothole which he was told had caused the damage. According to him, the hole was six to eight inches deep and went under the track extending approximately eighteen inches both outside and inside the tracks.

Considering the testimony of the two officers and Evans that there were two potholes involved in the accident — one outside the tracks and one inside — we find that the trial judge was not clearly wrong in finding DOTD and MoPac liable in solido.

For these reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Louisiana Department of Transportation and Development.

AFFIRMED.

      . MoPac answered the appeal, raising several assignments of error; however, these assignments were not briefed, and we consider them abandoned. Uniform Rules-Courts of Appeal, Rule 2-12:4; Barker v. Barker, 430 So.2d 827 (La.App. 5th Cir.1983).


author: LABORDE, Judge.

text:
    W.Q. WISE, INC., Plaintiff-Appellant, v. Gary Ronald LEWING, Defendant-Appellee.
    No. 83-526.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      William D. Dyess, Many, for plaintiff-appellant.
    James L. Davis, Many, for defendant-ap-pellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Plaintiff, W.Q. Wise, Inc., instituted this suit against Gary Ronald Lewing, defendant, to have an Oklahoma judgment against defendant made executory. The trial judge held that a certified copy of the foreign judgment presented during the proceedings was not properly authenticated and could not be made executory. Following all delays for appeal, plaintiff filed a second and identical suit to again have the same foreign judgment made executory. Defendant responded with an exception of res judicata which the trial court sustained, resulting in the dismissal of plaintiffs second action. It is from this second adverse ruling that plaintiff appeals. Since the second suit, now on appeal, asserts the same demand against the same party based on the same cause of action as does the first suit, we conclude that the trial court was correct in granting defendant’s exception of res judicata. We affirm.

Plaintiff obtained a money judgment for $814.13 against defendant in Tulsa County, Oklahoma arising out of an equipment rental agreement. Plaintiff sought to have this foreign judgment made executory by filing suit against defendant in Sabine Parish, Louisiana. On September 1, 1982, judgment was rendered in defendant’s behalf. The trial court held that a certified copy of the foreign judgment offered by plaintiff in the proceedings was not authentic. LSA-C.C.P. art. 2541.

After all delays for appeal had elapsed, plaintiff filed a second and identical law suit, again seeking to have the foreign judgment made executory. Defendant filed a peremptory exception of res judicata which the trial judge sustained on March 13, 1983. This ruling resulted in a dismissal of plaintiff’s second suit. Plaintiff now appeals from this second adverse judgment and alleges in brief that he is appealing from both judgments.

AUTHENTICITY OF THE FOREIGN JUDGMENT

Review of the record indicates that plaintiff did not timely effect an appeal from the first judgment of September 1, 1982. LSA-C.C.P. art. 2087 provides:

“Art. 2087. Delay for taking devolu-tive appeal
Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

Notice of judgment was given the same day the judgment was rendered. Therefore, plaintiff’s suspensive and devol-utive delays for appeal began to run the day after the judgment was rendered, September 1, 1982, and had long since elapsed by the time plaintiff effected this appeal. We hold that the first judgment, rendered on September 1, 1982, became final and definitive and cannot therefore be appealed from. LSA-C.C.P. articles 1842 and 2087. Accordingly, we will not consider plaintiff’s sole specification of error which questions the trial court’s judgment and ruling in the first suit as to the authenticity of the certified copy of the Oklahoma judgment. The proper method of challenging the judgment of September 1, 1982 and rulings therein would have been to effect a timely appeal. We cannot allow plaintiff to refile his suit in order that he might resurrect and reliti-gate issues from a final and definitive judgment. The trial court properly disposed of this attempt by dismissing the second law suit on the peremptory exception of res judicata. In Reaux v. Iberia Parish Police Jury, 411 So.2d 727 (La.App. 3rd Cir.1982) we stated:

“In order to maintain an exception of res judicata in a subsequent action, three things must occur. The subsequent action must (1) contain the same parties, (2) be based on the same “cause” and (3) the thing demanded must be the same. LSA-C.C. art. 2286; Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); Mitchell v. Bertolla, 340 So.2d 287 (La.1976).”

The theory of civilian res judicata is that matters actually litigated and finally adjudged are presumed correct and, thus, should not be contradicted in a subsequent suit. LSA-C.C. arts. 2284-87, 3556(31); Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978).

Upon thorough review of all the pleadings and record, it is obvious that the second suit asserts the same cause of action, between the same parties, for the same object of demand, as does the first suit. We therefore hold that the trial court properly dismissed the plaintiff’s second suit by sustaining defendant’s exception of res ju-dicata.

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

AFFIRMED.


author: STOKER, Judge.

text:
    Lois Ann Caillier LEE, Plaintiff-Appellee, v. Jeanel J. LEE, Defendant-Appellant.
    No. 83-557.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Yidrine & Wimberley, J. Lee Wimberley, Jr., Church Point, for defendant-appellant.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

Appellant, Jeanel J. Lee, appeals from a judgment relative to child support payments he is required to pay. He also appeals the refusal of the trial court to alter visitation rights in effect. Jeanel J. Lee (Jeanel) is the father of five children of his marriage with appellee, Lois Caillier Lee (Lois). The parties were judicially separated and then divorced. In both the separation and divorce decrees, Lois was given custody of the five children. Jeanel was ordered to pay $1,000 monthly for the support of the children. Jeanel was given visitation rights on alternate weekends.

Appellant filed a motion to reduce the child support and also requested liberalization of the visitation rights. After trial on the motion, the triaL court reduced the monthly support required from $1,000 to $600. Appellant complains the trial court erred in not reducing the payments to $400 per month. Appellant also contends that the trial court erred in refusing to grant him more liberal visitation rights.

We affirm.

FACTS

The ages of the five Lee children are 8, 11, 13, 14 and 15. The record reveals that in fixing child support in the separation and divorce decree the trial court specified that the payment was based on an award of $200 per child. Originally the trial court found that appellant had a net income of $1,800 per month which was “ ‘free’ money available to him.” In reasons for judgment after trial of the motion to reduce, the trial court found that Jeanel’s financial situation then showed he had a net of only $1,176.71. His former wife, Lois, testified that she earned an average of $281.67 per month as a part-time cashier at Dixieland IGA. Her hourly wage is $3.50 to $3.55 per hour. She denied that she worked as much as thirty hours a week and maintains that she averages only $281.67 per month. Lois ' receives $75 per month for a house but has no other income. She receives some help from relatives.

Lois listed her expenses for herself and her children for a total of $2,322.25 as compared to $3,521 at the time of the previous hearing. Jeanel testified that his monthly expense as itemized on a list in evidence total $866 which leaves him a net of only $310.

The only significant fact relative to the visitation issue is that Jeanel lives six or seven miles distant from Lois and his children.

CHILD SUPPORT REDUCTION

As noted, the trial court gave judgment in mover’s favor reducing child support from $1,000 per month to $600 per month. Appellant urges the reduction should be to $400. In support of this argument appellant asserts that his own expenses leave him only $310 available for the children. Further, appellant challenges the trial court’s finding that Lois makes only $281.67 per month. He urges that she earns $455 per month based on a thirty-hour week at $3.50 per hour.

Without detailing all the respective arguments we conclude that the trial court’s findings relative to earnings and expenses of the two parties are not clearly wrong. We do not find any clear abuse of discretion on the part of the trial court without which we cannot disturb its determination of the father’s child support obligation. Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir.1981).

VISITATION RIGHTS

Appellant urges that in his case visitation rights, restricted to alternate weekends, are unrealistic because he lives so near to his children. Under the circumstances, appellant feels that the visitation arrangement should be liberalized. He feels, for example, that there is no reason that his children should not visit with him on school nights as the children could study at his home as well as their mother’s home. The trial court found that any difficulty appellant was having in exercising his present rights was not the fault of Lois. Rather the problem stems from the fact that the children, especially the teenagers, have weekend programs of their own which they do not want disrupted by being made to visit with their father.

In any event we cannot say that the trial court abused its discretion in refusing to make any change in visitation rights in appellant’s favor. See Gowins v. Gowins, 391 So.2d 48 (La.App. 3rd Cir.1980).

For the reasons given the judgment of the trial court is affirmed. Appellant is assessed with the costs of this appeal.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Linus DUHON, d/b/a Linus Duhon Dragline Service, Plaintiff-Appellee, v. James TRAHAN, Defendant-Appellant.
    No. 83-590.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Theall & Fontana, Anthony J. Fontana, Abbeville, for plaintiff-appellee.
    Harold Savoie, Lafayette, for defendant-appellant.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Linus Duhon, the plaintiff herein, filed suit against James Trahan, for an amount allegedly due him for services he had rendered on defendant’s behalf. The trial court rendered judgment in favor of plaintiff ordering Trahan to pay the sum of $5,195.00 with legal interest from the date of judicial demand. Defendant — Trahan has appealed. We affirm.

The sole issue on appeal is whether or not the trial court erred in finding that defendant had agreed to pay plaintiff in cash for the services rendered.

Plaintiff and defendant entered into an oral contract whereby plaintiff would use his dragline to knock down and level an old canal levee located on defendant’s property. Plaintiff performed his obligations under the contract. After the completion of the work, plaintiff submitted an invoice to defendant in the amount of $5,195.00 representing 89 hours of work at $55.00 an hour, plus $300.00 for a load of dirt. Plaintiff made repeated demands for payment of his services in the form of cash. These demands were not honored and subsequently plaintiff filed this suit.

The determination to be made here involves a question of fact. The trial court was presented with two versions of the manner in which plaintiff would be compensated for his services.

Defendant contends that the parties agreed payment would consist of defendant delivering materials to plaintiff, particularly wood and long timbers that had a value equal to the services. On the other hand, it was plaintiffs contention that defendant had agreed prior to the commencement of the work to pay him $55.00 an hour for the services rendered. The trial court concluded that the parties had agreed that defendant would pay plaintiff $55.00 an hour in cash for his services.

The record reveals many inconsistencies in defendant’s testimony. In his deposition, he stated: “Well, I told him to come meet my wife here in Lafayette to get a check while I was going to see the property in Andrew and I went and seen the property ...” Further, plaintiff testified that defendant had asked him to meet him at the First National Bank in Lafayette and that there he would be paid. To contradict this statement, defendant testified that he only did business at Guaranty Bank in Lafayette. However, in opposition with that testimony, defendant later admitted that he had a commercial checking account for his business at the First National Bank in Lafayette.

An appellate court may not disturb a trial court’s evaluations of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the entire record, we cannot say that the trial court’s decision is manifestly erroneous. In fact, based on the totality of the evidence the judgment is warranted.

For the above and foregoing reasons the judgment of the trial court is affirmed. Defendant is to pay all costs of this appeal.

AFFIRMED.


text:
    PASTERNACK’S FOR LIQUIDATION, Joseph Pasternack, Jr., Plaintiff-Appellee, v. Betty Pasternack SAMUELS, Defendant-Appellant.
    No. 83-596.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      J. Robert Wooley, Baton Rouge, Dan E. Melichar, Alexandria, for defendant-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This appeal deals with the proper amount of compensation to be paid the liquidator of a partnership and the propriety of an award of an expert witness fee to an accountant testifying in opposition to the amount of the liquidator’s fee.

FACTS

Pasternack’s was originally a partnership between Joe Pasternack, Jr. and his father, Joe Sr. The partnership was involved in the retail sale of furniture, hardware, and lumber and in investments. Upon Joe Sr.’s death in 1963, the partnership was continued between Joe Jr. and his mother, Mrs. Agatha Kullman Pasternack. Mrs. Paster-nack owned outright a one-fourth interest and had the usufruct of the one-fourth inherited by Joe Jr. and Betty Pasternack Samuels in equal proportions from their father. After Mrs. Pasternack died in 1979, Joe Jr. and Mrs. Samuels agreed to continue the partnership with Joe Jr. owning a ⅝ interest, Mrs. Samuels owning a ⅛ interest, and the Succession of Mrs. Paster-nack owning a xk interest. Joe Jr. was the managing partner and the partnership could be terminated upon ninety days’ notice by any partner.

Following Mrs. Samuels’ letter dated September 4, 1981, notifying Joe Jr. of her desire to terminate the partnership, the partnership was terminated as of December 3, 1981, except for purposes of liquidation. The trial court named Joe Jr. as liquidator of the partnership with a fee set at two and one-half percent of the total assets of the partnership. The trial court judgment provided that at termination of the liquidation proceedings either party could apply for an increase or decrease.

Joe Jr. ultimately filed a Petition for Homologation of Final Account and Proposed Tableau of Distribution in which he showed the total assets of the partnership as $3,065,505.95. The proposed liquidator’s fee was two and, one-half percent of that amount or $76,637.64. Mrs. Samuels opposed the fee as excessive, but after a hearing the trial court approved the fee and the proposed final distribution. Mrs. Samuels appeals this ruling.

Mrs. Samuels claims that the trial court erred (1) in setting the liquidator’s fee at $76,637.64, and (2) in failing to tax as a cost of the proceeding the fee charged by the accountant used as Mrs. Samuels’ expert in the opposition to the liquidator’s fee. We affirm.

LIQUIDATOR’S FEE

There is neither statutory provision setting a fee for a liquidator nor any apparent ease law on this matter. In its oral reasons for judgment, the trial court compared the liquidator of a partnership to an executor or administrator of a succession. The compensation to be awarded an executor or administrator is regulated by LSA-C.C.P. art. 3351 which provides in pertinent part:

“In the absence of a provision in the testament or an agreement between the parties, the administrator or executor shall be allowed a sum equal to two and one-half percent of the amount of the inventory as compensation for his services in administering the succession. The court may increase the compensation upon a proper showing that the usual commission is inadequate.”

Mrs. Samuels does not claim that Joe Jr. is not entitled to a fee, only that the fee awarded is excessive. In Succession of Lasyone, 395 So.2d 413 (La.App. 3rd Cir., 1981), this court held that the trial court has much discretion in setting a succession administrator’s fee and the fee award can be disturbed only if that discretion has been abused. We conclude that this standard of review should be applicable to the award of a liquidator’s fee and make our findings in accordance with that standard.

The trial court in this case acted reasonably in comparing a liquidator to an executor or administrator and did not abuse its discretion in awarding a fee of two and one-half percent of the partnership assets. However, it is Mrs. Samuels’ claim that the fee should be based on the work performed and that on this basis the fee of $76,637.64 is excessive. She points out that Joe Jr. was awarded by the court a management fee of $5,500 per month for the period he managed the partnership without compensation from his mother’s death up until the time of liquidation. According to Mrs. Samuels, the liquidation of the partnership was substantially completed at the beginning of April, 1982, taking only four months. Therefore, she asserts that the liquidation fee should be no more than $22,000 (four months at $5,500 per month). We disagree.

As pointed out by the trial court, additional factors are involved in the liquidation of a partnership which are not involved in day-to-day management. During the period of liquidation, Joe Jr. was involved in conducting “going-out-of-business” sales, “moonlight madness” sales, auctions, and sheriffs’ sales in an effort to get the highest cash value for the partnership assets. He also conducted numerous investment transactions in order to get the highest return in the shortest amount of time. Further, the trial court correctly pointed out that the liquidator assumes a serious fiduciary responsibility and is required to post a bond. In any event, Joe Jr.’s duties extended beyond the date on which the bulk of the physical assets were sold. He continued to make court appearances and keep up with the investments of the partnership to the best interests of all concerned. We note that there is no allegation that he did not act prudently.

The Petition for Homologation of Final Account and Proposed Distribution was filed on January 11, 1983, and an amended petition was filed on February 17, 1983. Thus, the period of liquidation was approximately fourteen months. We note that fourteen months at a salary of $5,500 per month equals $77,000, an amount very close to that awarded by the trial court.

Much is made of the fact that during the last few years of the partnership, the amount of liquid assets or working capital was far in excess of what was needed for the business. Mrs. Samuels introduced the testimony of Erik Hearon, a certified public accountant, who stated that under the formula set out by the Tax Court in Bardahl Manufacturing Corporation v. Commissioner of Internal Revenue, 24 T.C.M. 1030 (Tax Ct.1965), Pasternack’s had an excess of working capital consisting of cash and bonds of $1.9 million in 1980 and 1981. According to Hearon, much of this should have been distributed to the partners; however, he admitted that most of the funds were reinvested in bonds and certificates of deposit. He also admitted that the business of Pasternack’s had significantly changed over the past several years from a retail business to one primarily of investment. There is nothing in Mr. Hearon’s testimony which convinces us that the liquidator’s fee should be reduced simply because too much capital had been allowed to accrue.

Under the circumstances, we cannot say that the trial court abused its discretion in setting the liquidator’s fee. Accordingly, we affirm that award.

EXPERT FEES

The trial court failed to cast Pasternack’s for the fee of Mr. Erik Hearon, Mrs. Samu-els’ expert witness. She claims this was error. We disagree.

Since Mrs. Samuels lost in the trial court in her attempt to reduce the liquidator’s fee, the cost of her expert was properly not taxed as costs to the partnership as Mrs. Samuels was the “party cast in judgment” on the issue. LSA-R.S. 13:3666; see also Holliday v. Continental Can Company, Inc., 351 So.2d 181 (La.App. 2d Cir.1977).

CONCLUSION

For the reasons set out above, we affirm the judgment of the trial court. Costs of this appeal are assessed to Defendant-Appellant, Betty Pasternack Samuels.

AFFIRMED.


text:
    Roy J. NORTON, Plaintiff-Appellant, v. Alton THORNE, Defendant-Appellee.
    No. 83-599.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Rehearing Denied April 3, 1984.

      Irving Ward-Steinman, Alexandria, for plaintiff-appellant.
    William E. Skye, Alexandria, for defendant-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

This case involves a dispute over a servitude of passage which was previously before this court. In Norton v. Thorne, 412 So.2d 716 (La.App. 3rd Cir.1982), plaintiff, Roy J. Norton, filed a petition asking that the defendant, Alton Thorne, be compelled to remove a fence from a road on which the plaintiff claimed a right of use by the acquisitive prescription of thirty years. The district court granted the plaintiffs motion for summary judgment. We reversed that decision and remanded the matter for further proceedings. Defendant then filed an exception of no cause of action. The trial court granted the exception of no cause of action and the plaintiff appeals. We affirm.

The appellant,. Roy J. Norton, contends that the trial court erred in granting the exception of no cause of action by applying the servitude articles of the Louisiana Civil Code of 1870 rather than the revised articles of 1977. We hold that the application of the older provisions was proper.

Article 766 of the Louisiana Civil Code of 1870 stated that a discontinuous servitude such as a right of passage could only be established by title. In 1977 this article and the distinction between discontinuous and continuous servitudes was abolished. A right of passage can, therefore, now be acquired by prescription. LSA-C.C. art. 740; Boothe v. Department of Public Works, 370 So.2d 1282 (La.App. 3rd Cir.1979).

The legislature, however, specifically stated that a servitude that was discontinuous under the prior law would not give “rise to prescriptive rights except from the effective date of new legislation,” January 1, 1978. Comments under LSA-C.C. art. 740. Since the new articles do not have a retroactive effect, the servitude articles of the Louisiana Civil Code of 1870 should govern this case.

According to the older provisions, the plaintiff could have acquired the servitude of a right of passage only by title. In this instance, plaintiff argues that he acquired the servitude by means of prescription. He fails to allege the establishment of the contested servitude by title. A peremptory exception of no cause of action was, therefore, properly granted by the trial court.

Plaintiff now tries to show title by attaching to the appellate brief a plat of servitude and a homestead exemption which the trial court refused to accept. This court cannot consider those documents. Exhibits attached to the plaintiffs appellate brief are not evidence and cannot form part of the record on appeal. Crader v. Casualty Reciprocal Exchange, 417 So.2d 101 (La.App. 3rd Cir.1982); Blouin v. Loyola University, 325 So.2d 848 (La.App. 4th Cir.1976).

The decision not to admit that evidence was within the sound discretion of the trial court and will not be disturbed on appeal in the absence of manifest error. Outright v. Wilson, 410 So.2d 1274 (La.App. 3rd Cir.1982). According to Article 708 of the Civil Code, the establishment of a predial servitude by title is governed by the laws dealing with the alienation of immovables. In Harthcock v. Hurst, 413 So.2d 636 (La.App. 1st Cir.1982) an immovable as well as a servitude were conveyed by means of an act of sale. The plat and homestead exemption are not acts conveying or creating a servitude. They only refer to a servitude. The trial court, therefore, did not err in refusing to accept these documents as evidence of title.

As the trial court stated, the plaintiff can acquire the right of passage only by title. Since he did not show title, the plaintiff does not have a cause of action.

For the above and foregoing reasons, the trial court’s decision is affirmed. Costs are assessed against plaintiff-appellant, Roy J. Norton.

AFFIRMED.


text:
    L.J. BROUSSARD, Plaintiff-Appellant, v. James BOOTH, et al., Defendants.
    No. 83-607.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied May 4, 1984.
    Provosty, Sadler & deLaunay, F. Rae Swent, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes and Munsterman, David A. Hughes, Alexandria, Thomas L. Crabson, Baton Rouge, Downs & Downs, James C. Downs, Alexandria, for defendants.
    Before DOMENGEAUX, GUIDRY, and STOKER, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, L.J. Broussard, filed suit against James Booth, Bob Stark (d/b/a Bob Stark Real Estate), the Rapides Parish Police Jury and the State of Louisiana, Department of Transportation and Development, seeking rescission of a sale, or in the alternative, recovery of compensation for the expropriation of his land. The Police Jury filed an Exception of Prescription. The trial court sustained the exception dismissing Broussard’s suit against the Police Jury. Broussard appeals.

ISSUE

The sole issue on appeal is whether or not the trial court erred in sustaining the exception of prescription.

FACTS

In August 1977, Broussard purchased a house and lot in Otis, Louisiana, from Booth through his real estate agent, Stark. Since March 1978, the property has been subject to flooding. As a result of the flooding, Broussard filed suit on September 30, 1981, seeking recovery of compensation for the expropriation of his land. In his petition, Broussard alleged that the flooding on his property was the result of the drainage construction carried out by the Police Jury. The Police Jury filed an exception of prescription based on the two year prescriptive period provided by La. R.S. 9:5624 and La.R.S. 19:2.1. The matter was heard on February 28, 1983, and the trial court sustained the exception in favor of the Police Jury.

THE EXCEPTION OF LIBERATIVE PRESCRIPTION OF TWO YEARS

The Police Jury, in its original appellate brief, admitted that La.R.S. 19:2.1 (which is incident only to actions for damages and claims resulting from legal expropriation) was not applicable because there was no expropriation proceeding. Therefore, the issue is whether or not La.R.S. 9:5624 is applicable. This statute provides:

“When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”

Broussard contends that his property was taken for public purposes. It is his contention that La.R.S. 9:5624 is not applicable to actions for the recovery of compensation of the property taken for public purposes. He cites as authority A.K. Roy, Inc. v. Board of Commissioners, 237 La. 541, 111 So.2d 765 (1959), which provides:

“[Djefendant, in this court relies solely on R.S. 9:5624. This section is equally inapposite to the case at bar, since, by its very language, it applies only ‘when private property is damaged for public purposes,’ but not to actions for the recovery of the value of the property taken for public purposes.” (Emphasis in the original.)

At 111 So.2d 767 (footnote omitted).

A review of the record reveals that the Police Jury has not expropriated and has not taken possession of the property nor has it constructed any facilities upon, under or over Broussard’s property. Therefore, the rationale of the Court’s ruling in Roy, which distinguishes an action for compensation from an action for damages directly applies to the instant case; the holding does not support appellant’s contention. See Miller v. Colonial Pipeline Company, 173 So.2d 840 (La.App. 3rd Cir.1965).

In the case of Nuckolls v. Louisiana State Highway Department, 337 So.2d 313 (La.App. 2nd Cir.1976), the Second Circuit addressed a similar, factual situation. Plaintiff therein filed suit against the State Department of Highways and the Town of Plain Dealing alleging to have sustained damages caused by the defendants’ unauthorized alteration of natural drainage which resulted in flooding of his property. The property owner admitted that he was aware of the flooding of his property on several occasions during 1972. However, he failed to file suit until February of 1975. The trial court sustained an exception of prescription based upon La.R.S. 9:5624. The Second Circuit affirmed the trial court’s decision stating that the statute declared that an action for any and all damages must be brought within two years from the time the damages were sustained. The Second Circuit further stated that the purpose, of the statute was to limit the exposure of the State and its political subdivisions to liability in connection with the construction of public works to a reasonable period of time. The Court explained the legislative intent of the statute thusly:

“The language employed when construed in the light of the purpose of the statute precludes any suit being brought after two years from the first occurrence of any damage after the completion of the public works.”

At 315.

In the present cáse, Broussard was aware of the flooding of his property since March of 1978. However, he failed to file suit until September of 1981. Therefore, we conclude that the trial court was correct in sustaining the exception of prescription.

DECREE

For the above and foregoing reasons, the judgment of the trial court against L.J. Broussard is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


text:
    Jimmy EDWARDS, Plaintiff-Appellee, v. Joyce EDWARDS, Defendant-Appellant.
    No. 83-613.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Miguez & Leckband, Carl A. Leekband, Jr., Lake Charles, for defendant-appellant.
    A.J. Fazzio, Lake Charles, for plaintiff-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

This is a domestic suit involving child support payments. Jimmy Edwards sued Joyce S. Edwards seeking a termination of his child support and alimony payments. Joyce reconvened alleging that Jimmy owed unpaid child support and alimony. The trial court rendered judgment terminating all future alimony payments and awarded Joyce $2,334 which represented past due child support.

Joyce has appealed raising the following issues:

1) Whether the trial court erred in applying LSA-R.S. 9:309;
2) Whether the trial court was clearly wrong in finding that Jimmy had paid his alimony and child support from April 10, 1979 to August 28, 1979; and,
3) Whether the trial court erred in not awarding attorney’s fees.

FACTS

Joyce Selph Edwards and Jimmy Edwards were married in Calcasieu Parish on May 13, 1960. On March 20, 1979 Joyce filed a petition for divorce, and a rule to show cause why Jimmy should not pay alimony and child support for their two minor children, Vicki and Frank Wayne. On April 10, 1979 the trial court awarded judgment on the rule granting Joyce alimony in the amount of $160 per week together with child support in the amount of $30 per week together with child support in the amount of $30 per child per week, with the total to be paid weekly in the sum of $220. The subsequent divorce proceeding was uncontested. On September 24, 1979 Joyce was granted a judgment of divorce which provided alimony and child support as follows:

“It is further ordered, adjudged and decreed that plaintiff, Joyce Annette Edwards, born Selph, be granted alimony and child support in the amount of $220.00 per week, payable each and every Friday, the first payment becoming due on September 21, 1979, until further orders of this Court.”

Jimmy decreased his child support payments by $30 when each of his minor children attained the age of eighteen: on December 31, 1979 for Vicki, and on July 9, 1981 for Frank Wayne. Jimmy continued to make weekly alimony payments of $160 from the time of divorce until October 25, 1982. On- November 5, 1982 he filed a petition and rule to terminate alimony and child support.

Joyce does not complain of the termination of future alimony and Jimmy has not appealed the trial court’s award of past due child support to Joyce.

TERMINATION OF CHILD SUPPORT

The trial court held that the child support award terminated automatically when the youngest Edwards’ child reached the age of majority. Joyce contends that Jimmy should have filed a rule to terminate child support. She argues that LSA-R.S. 9:309 is not applicable because the divorce judgment in the instant case does not differentiate between the sums awarded for alimony and child support.

The trial court relied on LSA-R.S. 9:309 B. which provides as follows:

“B. When an order on judgment awards child support in globo for two or more children, said child support award shall terminate automatically and without any action by the obligor to reduce, modify, or terminate the award when the youngest child for whose benefit the award was made attains the age of majority.”

The key to the applicability of this paragraph is. the existence of an award of child support in globo for two or more children. In the case at hand, even though the divorce judgment does not distinguish between the amounts of alimony and child support, it is nonetheless, at least in part, comprised of an award for “child support in globo for two or more children.” Accordingly, we find no error on the part of the trial court in terminating Jimmy’s child support obligations when the youngest child attained the age of majority. Likewise there is ample evidence in the record to support the trial court’s equitable division of the alimony and child support award.

Since the allocation of the alimony and child support awards was not specified in the divorce judgment, the trial court referred to the minutes of the hearing on the rule to show cause wherein the amount were originally set at $160 per week alimony and $30 per week per child for child support. See Miller v. Miller, 308 So.2d 379 (La.App. 1st Cir.1975) amended on other grounds 321 So.2d 318 (La.1975); and McConnell v. Theriot, 295 So.2d 60 (La.App. 4th Cir.1974), writ denied 296 So.2d 834 (La.1974) for a discussion of equitable apportionment of a judgment; see also Bagby v. Dillon, 434 So.2d 654 (La.App. 3rd Cir.1983), writ refused 440 So.2d 150 (La.1983). Joyce’s pleadings reflect that she relied on the alimony and child support awards determined at the hearing on the rule to show cause. Her testimony at the divorce hearing indicated that she requested that the amounts for alimony and child support established at the rule be continued in the judgment of divorce. Accordingly, we conclude that the trial court was presented with sufficient facts to distinguish the alimony from the child support payments, and to accurately calculate the amount of past due child support.

Secondly, Joyce contends that the trial court was clearly wrong in finding that she had failed to rebut Jimmy’s testimony that' he paid all alimony and child support payments prior to September 1, 1979.

A review of the record reveals that Jimmy supplied a detailed schedule showing the dates and amounts of each cash payment. On the other hand, Joyce was unable to explain the regular cash deposits that she made to her bank account during that period.

We will not disturb a trial court’s evaluation of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After a careful review of the record, we cannot say that the trial court’s determination was clearly wrong.

Finally, Joyce asserts that she was entitled to an award of attorney’s fees. LSA-R.S. 9:305 provides:

“When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights, except for good cause, the court shall award attorney fees and costs to the prevailing party." (Emphasis added)

Under LSA-R.S. 9:305 the trial court is vested with discretion in determining whether attorney fees are to be awarded when it renders executory a judgment incorporating child support arrearages. Cheramie v. Cheramie, 429 So.2d 203 (La.App. 1st Cir.1983), writ refused 434 So.2d 1095 (La.1983).

The record reveals that there was some question as to whether the child support payments should have been terminated as each child attained the age of eighteen. Jimmy relied on the breakdown of child support payments determined in the rule to show cause. Joyce did not object when the child support payments were decreased shortly after the divorce when her daughter, Vicki, turned eighteen, and then again two years later when her son, Frank Wayne, turned eighteen. Joyce did not contest the reduction of child support payments until Jimmy sought to terminate her alimony. Accordingly, we find no abuse in the trial court’s denial of attorney fees.

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

AFFIRMED.

      . A formal judgment on the rule is not of record, but the court minutes fully reflect this allocation of alimony and child support. The law is well settled that the formal minutes of a court of record are presumed correct in the absence of positive proof to the contrary. DePriest v. Connecticut Fire Insurance Company, 140 So.2d 458 (La.App. 1st Cir.1962); Bailey v. Demourelle, 17 La.App. 116, 135 So. 623.


author: FORET, Judge.

text:
    Carolyn Sue Shelfo ROBICHEAUX, Plaintiff-Appellee, v. Robert Lee ROBICHEAUX, Defendant-Appellant.
    No. 83-620.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Richard E. Chaudoir, Alexandria, for defendant-appellant.

      Eugene P. Cicardo, Jr., Alexandria, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

Plaintiff, Carolyn Sue Shelfo Robi-cheaux, filed suit seeking a separation from defendant, Robert Lee Robicheaux, along with a rule for custody of the minor child born of that marriage, Brandon Lee Robicheaux. Defendant reconvened, seeking joint custody of the child. After a hearing on the rule, the court awarded custody to the plaintiff and granted visitation rights to the defendant. Defendant appeals the portion of the judgment awarding sole custody of the child to Carolyn Robicheaux.

Robert lives with his mother and his twenty-six-year-old sister. He owns his own truck and auto glass installation business. In the past, his work has required him to travel frequently and to work at night on occasion. His sister is employed and works during the evenings. Robert testified that his mother would take care of the child when he was working. His mother, however, is seventy years old and suffers from bursitis. Carolyn is presently unemployed. Since she and her husband separated, she has had the child in her care.

The trial court found that although the child would not incur “physical harm” under either parent’s custody, it would be in the best interest of this two-year-old child for the mother to have custody.

According to the appellant, the presumption that joint custody is in the best interest of the child was not overcome. He contends that the trial court judgment violated Article 146 of the Louisiana Civil Code which provides that joint custody is to be favored and seeks to treat both parents equally by abolishing the legal preference in favor of the mother.

Although the trial court stated that it felt that a two-year-old child could best be taken care of by its mother, this does not necessarily signify that the court favored the mother. In Burch v. Burch, 398 So.2d 84 (La.App. 3 Cir.1981), we held that a trial court’s observation that generally the mother is awarded custody of very young children is not an indication of the application of the maternal preference rule in violation of the amended provisions of LSA-C.C. Article 146. Such an observation is rather a recognition of the “real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother.” Thornton v. Thornton, 377 So.2d 417 (La.App. 2 Cir.1979). In the case at hand, the trial court considered it in the child’s best interest to grant sole custody to the mother.

As for the presumption that joint custody is in the best interest of the child, Article 146 says that this presumption exists unless,

“C.
(2) The court finds that joint custody would not be in the best interest of the child.

In the present case, the trial court determined that joint custody was not in the best interest of the child. The record provides support for this conclusion. Robert travels frequently. During his absence, Robert’s mother may not be able to adequately care for the child. According to the testimony of Mrs. Becker, a friend of the family and nurse, the child’s grandmother suffers from bursitis, which could prevent her from lifting the child.

The trial court, in its determination to award custody of the Robicheauxs’ two-year-old son to his mother, considered the living conditions of both parents, the child care arrangements, and the working hours of the parents and concluded that it was in the best interest of the child that custody be awarded to Carolyn. Our courts have repeatedly held that great weight is to be given to the decisions of the trial court in custody matters, and absent a finding of abuse of discretion, its decision will not be disturbed. Cleeton v. Cleeton, 383 So.2d 1231 (La.1979). We discern no abuse of the trial court’s discretion in the instant case. The trial court had the opportunity to view the opposing parties and to evaluate the competing interests. The trial court concluded that it was in the best interest of the child that custody be awarded to Carolyn Robieheaux. We find no error.

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

AFFIRMED.


author: DOUCET, Judge.

text:
    Michael F. CLOONEY, Plaintiff-Appellant, v. Sheila Marie CLOONEY, Defendant-Appellee.
    No. 83-628.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Thomas & Hardy, Elizabeth S. Hardy, Lake Charles, for plaintiff-appellant.
    McClain, Morgan & Savoy, Richard L. Savoy, Lake Charles, for defendant-appel-lee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   DOUCET, Judge.

Does a custodial spouse in a divorce proceeding have to establish a change in circumstances to warrant an increase in child support when support had been determined previously in separation action and the only change in circumstances is termination of alimony pendente lite? That is the issue presented for our resolution. From a judgment increasing his child support obligation from approximately $450.00 per month to over $850.00 per month, the father appeals.

Michael F. Clooney, appellant, brought suit for divorce against his wife, Sheila Marie Clooney, defendant-appellee. A judgment of separation was rendered between the parties on September 10, 1981, awarding Mrs. Clooney alimony in excess of $350.00 per month and child support in a sum in excess of $550.00 per month. In the divorce action which followed defendant did not seek alimony for herself, but asked only for child support. The amount she sought in child support was in excess of the amount allocated for child support in the judgment of separation.

Mrs. Clooney contends that a determination of the amount of child support can be made without requiring her to prove a change in circumstances since the separation decree. Mr. Clooney concedes that this was the correct way to determine child support prior to Lewis v. Lewis, 404 So.2d 1230 (La.1981) but that since Lewis, the change in circumstances rule applies.

Prior to Lewis, a number of cases had held that child support as well as alimony for the wife terminated at the time of divorce. Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936).

Following this rule, this court in Worley v. Worley, 247 So.2d 254 (La.App. 3rd Cir.1971) held that since the previous child support award terminated at divorce, the child support award upon divorce was a new award. Thus, the fact that there was no change in circumstances shown was immaterial pursuant to jurisprudence prior to Lewis.

The rule that a change in circumstances was unnecessary was modified by the decisions in some cases, including Vanier v. Vanier, 344 So.2d 1077 (La.App. 3rd Cir.1977); Dugas v. Dugas, 374 So.2d 1278 (La.App. 3rd Cir.1979); and Wasson v. Wasson, 402 So.2d 718 (La.App. 1st Cir.1981) which held that the parent seeking a reduction in child support payments must prove a change in circumstances. In Was-son, we noted that alimony pendente lite is based on a spouse’s obligation to support the other during marriage, however, child support is a different matter. “The husband’s obligation to support the children is the same before divorce as it is after divorce.” Thus a spouse must show a change in circumstances to justify alteration of a prior decree.

In Vanier, supra, this court reiterated that child support differs from alimony as “The husband’s obligation to support the children of the marriage is the same before final divorce as it is afterwards.”

Other cases prior to Lewis, including Morrison v. Morrison, 316 So.2d 453 (La.App. 3rd Cir.1975) and Manuel v. Broderson, 298 So.2d 333 (La.App. 3rd Cir.1974), have held that a parent with custody bears no burden to show a change of circumstances when seeking an increased award for child support in a divorce action, following an earlier award incidental to separation litigation.

The trial judge construed the jurisprudence prior to Lewis, to the effect that a custodial parent seeking an increase in child support at the time of divorce does not have to show a change in circumstances, while a non-custodial parent seeking a reduction must show a change in circumstances. This seeming inconsistency was noted in Wasson, supra.

The Supreme Court in Lewis held that a previous child support award did not terminate upon divorce, and stated:

“Our previous opinions holding that support awarded to minor children ceases upon the rendition of a judgment of divorce were in error and are overruled to the extent they are inconsistent herewith.” 404 So.2d at 1234.

The trial court was of the opinion that the court in Lewis did not intend by its decision that a custodial parent, in seeking an increase in child support, must show a change in circumstances. In reaching this conclusion the trial judge noted “When an award is made for both child support and alimony for the wife, the total award is partially dependent upon the total amount the non-custodial parent is able to pay for both.’ The total amount awarded is apportioned somewhat arbitrarily between the child and alimony for the custodial parent. The amount awarded for either is not necessarily a realistic recognition of their respective needs ...”

In accordance with his interpretation of the law, the trial court proceeded to determine the support due, noting there are three minor children, ages 11, 9, and 6. Her net income was approximately $340.00 per month whereas Mr. Clooney grossed about $3,623.00 a month. Mrs. Clooney presented an itemized list of her total monthly needs and those of her children totaling approximately $1,600.00. Items attributable solely to the children were found to total $230.00.

Utilities, rent, ear expenses, and food, totaling approximately $1,200.00 were determined to be attributable to both Mrs. Clooney and the children. Of this amount, the trial judge found $525.00 reasonably attributable to the expenses of the children. Such apportionment of household expenses is a proper item to be considered in determining child pupport. Dufrene v. Dufrene, 430 So.2d 759 (La.App. 5th Cir.1983). The amounts for medical, dental, and health insurance were not considered as the court intended to require Mr. Clooney to pay such expenses for the children.

Thus, the total monthly expenses of the children were set at approximately $755.00, plus medical and dental care costs. Thus the husband’s monthly child support obligations approaches $900.00.

From that judgment, plaintiff appeals assigning as error the amount of the trial court's award of increased child support at a trial de novo where no change in circumstances was established.

Stated otherwise, the issue before us is whether termination of alimony pendente lite (which by definition is only temporary) is in and of itself a sufficient change of circumstances to warrant altering an earlier determination of the children’s needs.

The general rule in Louisiana is that an alimony or child support judgment remains in full force and effect in favor of the party to whom it is awarded until the party liable applies to the court and obtains a modification. McManus v. McManus, 428 So.2d 854 (La.App. 1st Cir.1983); Pisciotto v. Crucia, 244 La. 862, 71 So.2d 226 (1954); Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953).

“Child support awards stay in effect at judgment of divorce. A judgment awarding support for a child has a legally independent basis and is not a mere incident of a separation decree which terminates upon dissolution of marriage.” Babin v. Babin, 420 So.2d 1135 (La.App. 5th Cir.1982); Lewis v. Lewis, supra.

In Martin v. Brasseaux, 422 So.2d 548 (La.App. 3rd Cir.1982), this court held that:

“A parent seeking an award for child support from his (her) former spouse has the burden of proving by a preponderance of the evidence, the actual needs of the child (children) for whom support is sought and that former spouse has the ability to pay the amount sought. ... A mutual obligation of support, maintenance and education of children is imposed by our law on both parents ”.

The court therein concluded that the trial court erred in placing on the father the entire burden of supporting the child while requiring the mother to contribute nothing.

The mother as well as the father is obligated to support the children. Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir.1972); Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir.1976). Accord: Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Marcus v. Burnett, 282 So.2d 122 (La.1973); Strickland v. Strickland, 377 So.2d 537 (La.App. 3rd Cir.1979). However, the day to day care of children by the custodial parent fulfills a portion of that parent’s support obligation. Chaffee v. Chaffee, 398 So.2d 1169 (La.App.1981).

To modify a judgment or a consent decree awarding alimony, the party seeking to modify the award bears the burden of showing there has been a substantial change of circumstances of one or both of the spouses. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1st Cir.1982). Elimination of one spouse’s alimony may justify an increase in child support as the supporting spouse’s ability to pay is increased accordingly, cf: Danforth v. Danforth, 422 So.2d 544 (La.App. 5th Cir.1982); Long v. Long, 347 So.2d 513 (La.App. 2d Cir.1977). See also: Arceneaux v. Arceneaux, 417 So.2d 856 (La.App. 4th Cir.1982), on appeal, 428 So.2d 427 (La.1983).

In Trice v. Trice, 428 So.2d 1265 (La.App. 3rd Cir.1983), this court stated “... Any modification of a judgment for child support must be predicated upon a change in the circumstances of one of the parties. The litigant requesting the adjustment in a prior award has the burden of proving this change in circumstances.” Accord: Hyams v. Hyams, 365 So.2d 527 (La.App. 3rd Cir.1978).

In Petrich v. Petrich, 430 So.2d 829 (La.App. 5th Cir.1983) the court said:

“Absent a showing of change in circumstances, an initial award of child support should not be altered. Prudhomme v. Prudhomme, 381 So.2d 906 ([La.App.] 3rd Cir.1980).”

The only change in circumstances shown, other than termination of alimony pendente lite, were as follows: When the separation judgment was rendered, Sheila Marie Cloo-ney was not working, and at the time of the trial for the divorce, she ,was making $340.00 per month. Michael Clooney was earning approximately $38,965.00 per year at the time of separation whereas his W-2 Form for 1982 revealed that he earned $42,434.00. The mother had savings in the sum of $4,000.00 at the time of the divorce hearing while the father had approximately $8,500.00 in savings. Mr. Clooney’s monthly expenses had increased by $610.00. At the time of legal separation Mrs. Clooney was paying no rent and at the time of the divorce proceeding she was paying approximately $300.00 per month although her father-landlord had no receipts for same. She listed her total monthly expenses at $1,697.25 for both herself and the children, however, on the stand she admitted that many of the items were either one-time expenses or debts not yet incurred.

The obligation for child support arises, from the fact of paternity. The criteria used by the court for determination of child support is the same in a separation hearing as in a divorce hearing or any subsequent rule. The usual criteria is based upon a balancing of the needs of the children and the ability of both parents to contribute to the support of the children.

As a divorce decree does not terminate the obligation of child support, Lewis v. Lewis, supra; Tureaud v. Tureaud, 427 So.2d 634 (La.App. 5th Cir.1983); In re MDA, 427 So.2d 1334 at 1336 (La.App. 2nd Cir.1983); Babin v. Babin, supra; Berthelot v. Berthelot, 425 So.2d 985 at 986 (La.App. 5th Cir.1983); McManus v. McManus, supra; we hold that an initial award of child support should not be altered absent a change of circumstances. Accord: Petrich v. Petrich, supra; Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980).

We believe that the policy considerations requiring a change in circumstances in post-divorce child support proceedings support a presumption of validity of support determination in separation actions. The change of circumstances requirements is based in part on judicial efficiency considerations as domestic litigation should not be endless. While termination of alimony pendente lite effects the ability and need of the respective spouses, this alone should not ordinarily justify alteration of prior judicial determinations inasmuch as otherwise custodial parents might receive alimony under the guise of child support. Accordingly, we hold that separation awards of child support are entitled to a presumption of validity.

The circumstances herein indicate that the trial judge considered the father’s increased ability to pay due to the termination of alimony pendente lite as well as other factors. The needs of the children were unfulfilled, thus the award for child support was increased. The record reflects that the trial court was acting in the best interest of the children. The trial judge has much discretion in fixing child support and his award will not be disturbed unless there is a clear abuse of discretion. We cannot say the trial judge clearly abused his much discretion. Accordingly, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

FORET and YELVERTON, JJ., concur in the result.


author: YELVERTON, Judge.

text:
    Carl J. SCOTT, Plaintiff-Appellant, v. CITY OF ALEXANDRIA, Defendant-Appellee.
    No. 83-635.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Arthur Charles Lyons, I, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for defendant-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

The sole issue is the quantum of an award for property damage to a 1973 Oldsmobile Cutlass which was damaged in an accident. The trial court awarded $45. The owner appeals contending the car was a total loss and that the award was not enough. We affirm the trial court.

The $45 award was based on evidence of towing charges which the trial court regarded as the only proven property loss. The plaintiff-owner of the Cutlass testified that he bought the car eight months before the accident. When he attempted to testify what he had paid for it as being the measure of its pre-accident value, an objection was properly sustained. He bought the car as an investment for its classic, or antique value. He sold it after the accident for $150. No evidence was presented fixing the value of the car before the accident, or after.

The trial court concluded that this evidence did not establish what the car was worth at the time of the accident, nor was there any evidence, in the form of a repair estimate or otherwise, to establish what it would cost to repair the vehicle or whether it was a total loss. Plaintiff attempted to testify as to what a mechanic had told him regarding the condition of the car after the accident, but this was properly declared inadmissible because it was hearsay. Because of a total lack of evidence to support damages, the trial court limited the award to the towing charge.

Under the particular facts of this case the trial court was powerless to make any other award and we affirm the decision. The accident to the car happened about eight months after its purchase. It may well be that the automobile had a value that approximated its purchase price immediately before the accident. On the other hand, its market value at the time of the accident may have been considerably less than what was paid for it. It may have been a total loss as a result of the accident or it may have been repairable. The relative values before and after the accident are unknown quantities. Some light would have to be shed on these questions before the trial judge could fix the damages owed by the tort-feasor. The information needed by the trial judge could have been produced by witnesses and experts. Plaintiff testified he had a repairman look at the car but this expert was not called to testify.

The appellant relies upon the rule that when it is evident that a plaintiff has suffered damages the trial court is given broad discretion to fix damages even in the absence of certain evidence of the amount of the damages. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Green v. Superior Oil Company, 441 So.2d 54 (La.App. 3rd Cir.1983). There is a vast difference between proof certain on the one extreme and no evidence at all on the other. The rule is not applicable where, as here, there is an automobile damage and the evidence of value is readily available but not produced. In such a case, the trial court is justified in declining to rely on the owner’s personal opinion of damages as sufficient. See Derouen v. Department of Transportation and Development, 392 So.2d 765 (La.App. 3rd Cir.1980). The ease of production of the evidence is a proper consideration in determining, the burden of proof of the damages.

Before an award made by a trial court can be disturbed on appeal the record must clearly reveal an abuse of discretion. Perniciaro v. Brinch, 384 So.2d 392 (La.1980). In the review of an award for damages the question is not whether a different award might have been more appropriate but whether the award of the trial court can reasonably be supported by the evidence and justifiable inferences from it. Augustine v. Dickenson, 406 So.2d 306 (La.App. 3rd Cir.1981).

On the basis of this record the award was reasonable and not an abuse of discretion. For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Delmer Otto COLLEPS, Plaintiff-Appellant, v. STATE FARM GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 83-643.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for plaintiff-appellant.
    Stockwell Sievert, Viccellio Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   CUTRER, Judge.

Delmer Colleps filed suit against State Farm Fire and Casualty Company for damages due to alleged injuries sustained in a fall at the home of his daughter and son-in-law, Mr. and Mrs. Terry Lowrey. From a trial court judgment dismissing his suit, Colleps appeals. We affirm.

The issues presented on appeal are as follow:

(1) Whether the trial court was clearly wrong in finding that Colleps failed to prove that the injuries were caused by a defective condition of his son-in-law’s premises; and
(2) Whether the trial court erred in finding that LSA-C.C. art. 2317 was not applicable.

DEFECTIVE CONDITION IN PREMISES?

On July 5, 1980, Lowrey was in the process of constructing a house for his family. Colleps, his father-in-law, was gratuitously assisting in the work. Colleps had no regular hours but worked according to his own desires.

On the day in question, Colleps was working on the roof of the house when he decided to quit and go fishing. He asked a young man on the job site to place a stepladder near the edge of the roof. This ladder was owned by Colleps. He had brought it to the job to be used by himself and others. The young man situated the ladder as requested but did not remain to steady it, nor did Colleps ask anyone else to do so.

After testing the ladder with one foot, Colleps started to descend when the ladder fell over throwing Colleps to the ground causing injury. Lowrey helped him to get up. Debra Lowrey, his daughter, came up and the three of them talked a while. Col-leps then drove off in his truck.

In addition.to his own testimony, Colleps called Terry and Debra Lowrey to testify as to the cause of the accident.

Terry Lowrey testified that, after the accident, he viewed the ladder and saw that one leg of the ladder was partially broken at about the first rung. He stated that the broken leg of the ladder was in a stake hole that was left when a 2 x 4 foundation support had been pulled from the ground. Lowrey was the only witness who said he saw the stake hole. Lowrey did not tell Colleps about the stake hole for four or five weeks.'

Debra Lowrey testified that she was at the scene of the accident immediately after the occurrence and that the leg of the ladder went into a hole but admitted she did not see a stake hole. On July 25, 1980, however, in a taped interview with Don Soileau, defendant’s adjuster, Debra stated that they did not know why the ladder leg broke unless it was a weakness in the leg.

Colleps stated that, after the accident, he did not see the leg of the ladder in a stake hole. He gave a statement to Don Soileau stating that the leg of the ladder probably slipped on loose ground. He said nothing about a stake hole. He stated that Lowrey did not tell him anything about the stake hole until four or five weeks after the accident.

After hearing this conflicting evidence the trial court concluded that Colleps had failed to prove that the fall was caused by a defective condition (stake hole) in the premises.

An appellate court may not disturb a trial court’s evaluations of credibility and factual determinations unless the record reveals that the trial court’s decision is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After reviewing the record, we cannot say that the trial court’s evaluation of the evidence is clearly wrong.

LIABILITY UNDER 2317

Colleps contends that the strict liability provisions of LSA-C.C. art. 2317 apply.

An injured party seeking damages under LSA-C.C. art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that it occasioned an unreasonable risk of injury to another and that his injury was caused by the defect. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). Custody in LSA-C.C. art. 2317 means supervision and control. Smith v. Chemical Construction Corporation, 215 So.2d 530 (La.App. 1st Cir.1968).

Colleps contends that the ladder was exclusively in the possession and control of Lowery. We disagree. The ladder was owned by Colleps for some years. He allowed persons working at the home’s construction site to use the ladder. Colleps supervised the placement of the ladder pri- or to the accident. Colleps was using his own ladder at the time of the accident. Therefore, Colleps has failed to prove custody by Lowery, an essential element under art. 2317.

For these reasons the judgment of the trial court is affirmed. Delmer Colleps, appellant, shall pay all costs of this appeal.

AFFIRMED.

      . LSA-C.C. art. 2317 provides:
      "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.’’