author: CARTER, Judge:

text:
    Helen C. NATHANS v. Frank L. VUCI, et al.
    No. 83 CA 0110.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Dennis C. Weber, McPherson, Weber, Zainey & Booth, Steve M. Marks, Baton Rouge, for plaintiff-appellant Helen C. Nathans.
    Thomas F. Wade, Asst. Atty. Gen., Baton Rouge, for defendant-appellee State of La.
    David L. Dawson, Jr., Baton Rouge, for defendant-appellee Frank L. Vuci.
    Emile C. Rolfs, III, Durerett, Hardin, Hunter, Damerion & Fritchie, Baton Rouge, for defendants-appellees Harold Tridico, James M. Dupuy and The North River Ins. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal by plaintiff, Helen Nathans, from a summary judgment granted in favor of one of the defendants, namely, Frank L. Vuci.

In November, 1978, plaintiff filed suit against Frank L. Vuci, Barbara Bishop Lillie, Richard C. Bishop, Kenneth Kain, James M. Dupuy, an unnamed Ascension Parish Sheriffs deputy, the Sheriff of Ascension Parish, and the State of Louisiana alleging that these defendants, as a result of a wrongful eviction, caused damage to her person and her property.

The specific allegations of her petition, which address Vuci’s liability, provide that:

“12.

Defendant, Frank L. Vuci and Barbara Bishop Lillie, wrongfully, negligently, willfully and maliciously caused petitioner to be forcibly evicted from the leased premises on February 24, 1978, after accepting petitioner’s tender of rental payment for February, 1978. By holding themselves out to be the owner/lessor of the premises, defendants, Frank L. Vuci and Barbara Bishop Lillie, are answerable for the damages caused to petitioner by the unlawful eviction. La. Civil Code Article 2696.

* * * s£ * *
16.
Petitioner, Helen C. Nathans, brings this action pursuant to all applicable Louisiana law, including but not limited to, La.Civil Code Articles 2315, 2320, and 2696.”

Defendant Vuci filed a motion for summary judgment and attached various documents and depositions. Attached to the motion was a copy of the Court of Appeal decision, which held that the lease had expired at the end of the primary term and that from 1969 to the time of filing of the eviction proceeding, lessee’s occupancy of the premises was under a reconduction of the lease on a month-to-month basis. A copy of the Act of Sale, dated November 16, 1977, wherein Vuci sold all of his right, title, interest in and to the property in question to Barbara Bishop Lillie and Richard C. Bishop, was also attached. The attached depositions established that at the time of the eviction Frank Vuci did not own the leased premises. Plaintiff filed no affidavits, depositions, documents, or other evidence in opposition to defendant’s motion and accompanying support thereof.

The trial court found that, based upon the pleadings, depositions, and attached documents, there remained no genuine issue of material fact with reference to Vuci’s liability for damages resulting from the eviction of Nathans. The only issue presented is whether the trial court properly granted the motion for summary judgment.

BACKGROUND

In 1968, Vuci leased to plaintiffs husband, now deceased, a building and property which became known as George’s Villa. The lease was for a primary term of one year with two options to renew, neither of which was ever exercised. See Vuci v. Nathans, 357 So.2d 561 (La.App. 1st Cir. 1978).

On August 30, 1977, plaintiff was notified to vacate the leased premises by September 30, 1977, which plaintiff refused to do. Eviction proceedings were instituted, and the trial court ruled that plaintiffs lease had expired and that plaintiff’s occupancy thereafter had been under a recon-duction of the expired lease and ordered that she vacate the premises. Plaintiff appealed suspensively from this judgment. While the appeal was pending, Mrs. Nathans remained in possession of the leased premises and continued to pay rent through February, 1978.

In November, 1977, after the trial court judgment but before the judgment was rendered on appeal, Vuci sold the leased premises occupied by Nathans to Barbara Bishop Lillie and Richard C. Bishop.

On February 21, 1978, this court affirmed the judgment of the trial court evicting Mrs. Nathans and ordered her to vacate and deliver possession of the leased premises.

On February 24, 1978, Ascension Parish Sheriff’s deputies forcibly evicted Nathans. It was during this eviction that Mrs. Nathans was allegedly injured, and it is these injuries which form the basis of the present suit for damages against Vuci and the other defendants.

MOTION FOR SUMMARY JUDGMENT

Plaintiff contends that the trial court erred in granting summary judgment in favor of defendant Vuci. Plaintiff reasons that defendant Vuci’s acceptance of plaintiff’s advance rent check for February, 1978, was tantamount to reconduction of the expired lease on a monthly basis and that Vuci is answerable for the damages she sustained as a result of her forcible and wrongful eviction under LSA-C.C. art. 2696. Plaintiff also contends that enforcement of the Court of Appeal’s judgment was prematurely made, rendering defendant Vuci liable to her for abuse of process. And, finally, plaintiff contends that defendant Vuci wrongfully converted her property-

A. Reconduction of the lease on a month-to-month basis

Plaintiff contends that Vuci’s acceptance of the rent check for February, 1978, constitutes a reconduction of her expired lease and that because she was evicted prior to the end of the month for which she had paid rent, Vuci is answerable for damages under LSA-C.C. art. 2696.

In support of her contention that acceptance of rent for February, 1978, reconduct-ed the lease, plaintiff cites Flores v. Gondolier, Ltd., 375 So.2d 400 (La.App. 3rd Cir.1979), which held that acceptance of rental payments after a notice to vacate has been given vitiates the notice and maintains the tenant’s possession.

Plaintiff’s reliance on Flores, however, is misplaced. Clearly, the summary action of eviction is based on the required notice to vacate, and the acceptance of rent after that notice, but before a judgment of eviction, vitiates the notice and prevents the lessor from obtaining such -a judgment. Passalaqua v. Mendez, 388 So.2d 1172 (La.App. 4th Cir.1980). In the case sub judice, the rent was accepted after a judgment of eviction had been rendered by the trial court. Therefore, the acceptance of the rent did not vitiate the judgment.

The Supreme Court addressed the issue of reconduction in Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574, 576 (La.1970) in the following manner:

“The civil law has expressly recognized that occupancy of premises by a lessee after the expiration of a fixed-term lease constitutes reconduction. The Code Napoleon recognized under Articles 1738 and 1759 that a lessee’s continued possession after the expiration of a lease with a fixed term operated as a continuation of -the lease but for a new term of duration according to the custom of the place. Under such a reconducted lease either party could give notice of termination of the lease upon observing the delays established ‘ * * * by the custom of the place’. C.N. Arts. 1736, 1759.
Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week. The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month. La.Civ.Code Arts. 2689, 2685, 2686.” (footnote omitted) (emphasis added).

From October, 1968, until September, 1969, plaintiff had a written lease, but after the primary term expired plaintiff occupied the premises on a month-to-month basis under a reconducted lease. However, on August 30, 1977, plaintiff was notified by Yuci that she had to vacate the premises by September 30, 1977. The eviction proceeding which followed resulted in Mrs. Nathans’ eviction, a judgment from which she perfected a suspensive appeal. Therefore, Mrs. Nathans remained on the premises under the protection of the law, but against the wishes of Yuci and the subsequent owners. The lawful owner was entitled to collect rent for the days he was legally obligated to allow Nathans to remain on the premises. The lessee was not occupying the premises without opposition, and a reconduction of the lease did not occur.

Because we find that Mrs. Nathans did not occupy the premises on February 24, 1978, under a reconducted lease, we do not find that she is entitled to damages which resulted from an interruption of the lease.

B. Abuse of Process

Plaintiff contends that defendant Vuei is liable to her for abuse of process. Plaintiff relies on her allegation that a lease existed at the time of her eviction to support this contention. Although we have previously found that plaintiff did not have a lease, we will address plaintiff’s contention that Vuci is liable for the tort of abuse of process.

In Succession of Cutrer v. Curtis, 341 So.2d 1209 (La.App. 1st Cir.1976), writ denied 343 So.2d 201 (La.1977), the court listed the essential elements of a cause of action for abuse of process as follows at pp. 1213, 1214:

“... (1) the existence of an ulterior purpose; (2) a wilful act in the use of the process not proper in the regular prosecution of the proceeding.” (Citations omitted)

The Second Circuit Court of Appeal in Weldon v. Republic Bank, 414 So.2d 1361, 1365 (La.App. 2nd Cir.1982) discussed the elements of abuse of process as follows:

In 1 Am.Jur.2d Abuse of Process we find the following explanation with regard to the elements and requirements of abuse of process: § 4
... While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial.
An ulterior motive or a bad intention in using the process is not alone sufficient, the bad intent must have culminated in the abuse, for it is the latter which is the gist of the action. An action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. Thus the mere issuance of process is not actionable as an abuse of process; there must be use of the process, and that use must of itself be without the scope of the process, and hence improper_ (Emphasis added.)
* * * ⅜ *
§ 12
But there must be some “abuse” of the writ or process issued, or intent to accomplish a result not lawfully or properly attainable. Even if the moving party had an ulterior purpose in making use of the writ, if there was no “abuse” there is no cause of action.
5⅜ ⅜ ⅜ ⅜ ‡ ⅜
§ 13
... If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse, even if the plaintiff had an ulterior motive in bringing the action...
In 72 C.J.S. Process § 120, at page 1192, essential elements of abuse of process are explained as follows:
A legal and legitimate use of process, to effect the result which such process is designed by law to accomplish, is not an abuse thereof. Regular use of process cannot constitute abuse, even though the user was actuated by a wrongful motive, purpose, or intent, or by malice.

Under this interpretation of the law of abuse of process, we cannot say that the trial court, even in viewing the evidence in the light most favorable to plaintiff, was erroneous in granting the summary judgment to Vuci. Vascocu v. Singletary, 404 So.2d 301 (La.App. 3rd Cir. 1981), reversed on other grounds, writ denied 409 So.2d 676 (La. 1981). Plaintiff does not allege that any actions taken by defendant Vuci were not in the regular course of legal process nor does she allege that Vuci attempted to effect a result not designed by law to be accomplished by the process. The actions taken by Vuci in evicting Nathans were clearly within the scope of the eviction process. The fact that the actual eviction may have been prematurely effected (prior to a final judgment) would not make Vuci liable to abuse of process.

This assignment is without merit.

C. Tortious Conversion

Plaintiff further contends that defendant Vuci wrongfully converted valuable personal and business property during the course of the eviction.

Conversion is a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Deshotels v. Statewide Trailer Sales, 333 So.2d 259 (La.App. 1st Cir.1976). It is the act itself, rather than the intentional or negligent manner thereof, that constitutes conversion. Deshotels, supra.

Clearly, conversion contemplates the wrongful taking or the wrongful detention. Oge v. Resolute Insurance Company, 217 So.2d 738 (La.App. 3rd Cir.1969).

In her petition, plaintiff alleged that: “13.
As a result of the wrongful eviction, petitioner, Helen C. Nathans, suffered grave, serious and permanent physical injuries, great mental anguish, the loss of her business, the loss of valuable personal property, and the loss of valuable business property.”

Although plaintiff makes this allegation in her petition, she alleges no particular person who allegedly committed these acts. She argues in brief, however, that these allegations were, at lease partially, addressed to wrongful acts of conversion committed by Vuci. Plaintiff reasons that Vuci was responsible for the taking of her property in that he identified it as property which was conveyed in the Act of Sale passed between himself and Mrs. Lillie and Mr. Bishop. She contends that his act of pointing out the property, which caused others to unlawfully take her belongings, constituted conversion.

Plaintiff admitted that she never personally discussed ownership of these items with Vuci. Furthermore, plaintiffs petition alleges that “defendant, Kenneth Cain, and other unknown individuals” were responsible for the loss and destruction of her personal and business property, and there is no evidence that Vuci converted any assets belonging to plaintiff.

Plaintiff contends that the act of taking need not be performed by the alleged wrongdoer and that the act of conversion need not be associated with the acquisition of the property by the wrongdoer. Plaintiff cites South Texas Lloyds v. Jones, 273 So.2d 853 (La.App. 2d Cir.1973) in support of this proposition.

Plaintiffs reliance on this case, however, is misplaced. Clearly, South Texas Lloyds v. Jones, supra, based its holding a third person liable for the act of conversion committed by another on LSA-C.C. art. 2318, which holds parents vicariously liable for the tortious acts of their minor children. This case cannot be used to justify holding Vuci responsible for tor-tious acts allegedly committed by others.

For these reasons, we find that this assignment of error lacks merit.

D. Return of Advance Rent Not Due

In brief plaintiff contends that the trial court erred in granting summary judgment when there had been no adjudication concerning the return of rent paid in advance. Plaintiff reasons that she had paid rent for the entire month of February, but was evicted prior to the end of the month. She, therefore, contends she is entitled to a refund of a portion of rent paid.

We have reviewed plaintiffs petition and find that plaintiff did not sue for return of advance rent not due. Therefore, this assignment lacks merit.

CONCLUSION

It is well settled that a summary judgment should be granted only if there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); LSA-C.C.P. art. 966. Under LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials in his pleadings when a motion for summary judgment is made and supported by sufficient evidence.

Stated another way, on a motion for summary judgment, it must first be determined that the supporting documents presented by the moving party are sufficient to resolve all material issues of fact. If they are not sufficient, the motion for summary judgment should be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that a material fact is still at issue; only at this point may he no longer rest on the allegations contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

In certain instances, the failure of an adverse party to file opposing evidence does not automatically entitle the moving party to summary judgment. Jewell v. Thompson, 386 So.2d 689 (La.App. 3rd Cir. 1980), writ denied, 393 So.2d 746 (La.1980); Acme Refrig, of Baton Rouge v. Caljoan, Inc., 346 So.2d 743 (La.App. 1st Cir.1977). However, if the moving party has established both that there is no genuine issue as to material fact and that he is entitled to judgment as a matter of law, it is incumbent upon the adverse party to come forward with specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967.

In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Chaisson, supra; Hercules, supra.

In the present case, the trial court correctly determined that all material issues of fact were resolved and found that the evidence in support of the motion for summary judgment was sufficient. Therefore, it became necessary for the adverse party, Nathans, to file controverting evidence to establish that there existed a genuine issue of material fact. This plaintiff did not do, and, based on the record, reasonable minds would inevitably conclude that mover, Vuci, is entitled to judgment as a matter of law.

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

AFFIRMED.


source: Caselaw Access Project

author: SHORTESS, Judge. LANIER, Judge, PER CURIAM.

license: Public Domain

text:
    JAMES M. VARDAMAN & CO., INC. v. L.B. PONDER, Jr.
    No. 83CA0163.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Denied March 9, 1984.
    E.B. Dittmer, II, Bogalusa, for plaintiff-appellant.
    J. Lynn Ponder, Amite, for defendant-ap-pellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

James M. Vardaman & Company, Inc. (plaintiff) seeks to recover, either on the basis of quantum meruit or commission, for services rendered to L.B. Ponder, Jr. (defendant) in connection with a proposed sale of timber belonging to the latter and situated in Tangipahoa Parish.

Plaintiff specializes in the management of timber lands and sales of forest products. Its Bogalusa representative is 0. Aaron Rawles. Rawles had satisfactorily concluded previous timber sales with Ponder under procedures similar to those involved in this case. Initially, Rawles performed a timber survey, defined the property boundaries, marked the timber to be cut, estimated the volume in board feet, and suggested the anticipated monetary return to the owner. If the owner told him to proceed, Rawles would prepare all details for receiving sealed bids from prospective purchasers. If an acceptable bid was obtained, plaintiff would receive a commission of either 10% or 8% of the sale price, depending upon whether it supervised the cutting. No written documents were ever executed containing the terms of these broker agreements or stating whether the broker’s commission was earned upon securing a ready, willing and able purchaser or upon a sale.

In March of 1978, Rawles undertook the inspection of four tracts of land owned and/or supervised by Ponder. Following the above procedures, Rawles received two sealed bids on three of these tracts. Both bids were rejected because the parties agreed they were too low. Rawles then asked for and was given authority to seek a negotiated bid from Crown-Zellerbach (CZ).

Rawles obtained a verbal offer from CZ in October, 1978, to purchase the timber on three of the tracts (A, C and D) for the total sum of $88,494.00. A timber deed was prepared and forwarded to Ponder for his signature and that of August E. Cefalu, a co-owner of one of the tracts. The owners signed the deed and forwarded it to Rawles for submission to CZ. Accompanying the deed was a request from the owners to have CZ’s payment broken down in the amounts of $8,849.40 to Vardaman, $19,057.00 to Cefalu, and $60,587.60 to Ponder. The deed was returned to the owners because it had not been properly witnessed and notarized.

On November 3, 1978, Lee Alford, Timber Procurement Manager for CZ, advised Rawles that he had been advised by CZ’s attorney that the subject property was burdened with a federal tax lien recorded against Ponder. Rawles relayed this information to Ponder who wrote Alford informing him that the “I.R.S. does not enforce [the lien] as to timber, which is (sic) movables, after cut_” Various efforts during the next three months to get a written release from the I.R.S. proved futile, although W.A. Rauch, the Internal Revenue Service agent involved, did agree orally not to pursue the timber in satisfaction of the lien according to Rawles and Ponder.

On February 1, 1979, based on the refusal of the I.R.S. to execute a written release of the timber, CZ notified Rawles that it had withdrawn its offer to purchase the timber. Plaintiff’s suit to recover for services rendered was filed on July 31, 1979.

The trial court found that the tax lien was not a bar to the sale and that “there [was] no evidence that I.R.S. (Rauch) would not release the timber in consideration of a direct payment of Ponder’s share of the proceeds.” For those reasons, plaintiff’s claim was denied and its suit dismissed.

The brokerage contract between Vardaman and Ponder involved the payment of money where the value exceeded $500.00. Under La.C.C. art. 2277, such agreements which are not reduced to writing must be proved “at least by one credible witness, and other corroborating circumstances.” Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977). The existence of a contingency fee contract is amply proven here by the testimony of Rawles and Ponder, the documents and exhibits entered into evidence, and the fact that these parties had twice before engaged in this type of business arrangement with no problems. Both parties admit that the customary arrangement had been for plaintiff to receive a 10% commission if it supervised the cutting and an 8% commission if it did not. At exactly what point (upon procuring a buyer or upon sale) this commission was “earned” was apparently never ironed out by the parties. There is insufficient evidence in the record to allow a court to make this determination. However, on reviewing the jurisprudence in Louisiana, we conclude that regardless of when the commission was payable, plaintiff is entitled to receive some commission under these facts. Plaintiff upheld its end of the contract when Rawles inspected and marked the trees to be cut on the tracts in question and negotiated the terms of a sale with CZ, all according to his discussions with Ponder. The testimony at trial established that Ponder (and his co-owner, Cefa-lu) agreed to the terms proposed by CZ and negotiated by Rawles.. Furthermore, the evidence showed that they had signed the deed which had been sent to them. The sole reason that the sale was not eventually consummated was Ponder’s inability to deliver a merchantable title to the timber. Standing timber is an immovable in Louisiana, and the sale of it must conform to the rules governing the sale of immovables. La.C.C. art. 462, 463. The federal tax lien attached to all of Ponder’s property, including the timber, and rendered his title to it unmerchantable. 26 U.S.C.A. § 6321 (West 1967); Pierre v. Chevalier, 233 So.2d 61 (La.App. 4th Cir.1970), writ refused, 266 La. 253, 236 So.2d 31 (1970). A sale of the timber would have to comply with the requirements of La.C.C. arts. 2275 and 2440. Article 2440 prohibits the admitting of testimony at trial to prove the existence of a verbal sale of an immovable. Article 2275 derogates from this rule a bit, deeming the sale “good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.” In this case, however, both parties admit that no sale, nor even a binding agreement to purchase, was ever entered into. Instead, the testimony at trial established that CZ would have entered into a binding purchase agreement but for the unmerchantability of Ponder’s title. Since article 2440 only prohibits admitting “testimonial proof” of the sale of an immovable, we believe that the testimony admitted here to prove an agreement in fact (though not in writing) is admissible, and sufficient to prove that CZ was a “ready, willing, and able” purchaser. In Samuels, our Supreme Court permitted a real estate broker to recover his commission based on an oral agreement when the sale was not consummated because of the owner’s actions, after finding that the requirements of La.C.C. art. 2277 had been satisfied.

It is well established under Louisiana law that an agent has earned his commission even if it is payable on sale, when he has obtained a purchaser who is ready, willing, and able to purchase the property under terms and conditions acceptable to the owner, notwithstanding that the sale is never consummated because the title is found to be unmerchantable. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972); Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556 (1930); Cooley v. Miller, 320 So.2d 317 (La.App. 3rd Cir.1975); Olympic Homes, Inc. v. Ory, 207 So.2d 258 (La.App. 1st Cir.1968), writ refused 252 La. 113, 209 So.2d 41 (1968); see also Joiner v. Lockart, 350 So.2d 199 (La.App. 3rd Cir. 1977), writ denied, 352 So.2d 240 (La.1977). Therefore, even if the terms of this contract called for the commission to be payable upon consummation of the sale, the fact that the sale was not closed due to the title defect renders Ponder liable for the commission.

Since the timber was not sold to the purchaser Rawles had secured, he did not supervise the cutting, and therefore plaintiff is entitled only to an 8% commission. We note that Ponder and Cefalu mailed a letter to CZ regarding the manner of payment for the timber on the three tracts. The consideration for blocks A, C, and D was $14,294.00, $42,350.00, and $31,850.00, respectively, totaling $88,494.00. Since Ponder’s testimony at trial that he and Cefalu each owned a one-half interest in Block C was uncontroverted, we find that 8% of the consideration for Block A, Ponder’s interest in Block C, and Block D equals $5,385.52.

The judgment of the trial court is reversed, and judgment is entered for plaintiff in the amount of $5,385.52, with legal interest from the date of judicial demand. All costs of these proceedings are taxed to the defendant.

REVERSED AND RENDERED.

LANIER, J., concurs and assigns reasons.

LANIER, Judge,

concurring.

I concur with the result.

The testimony of Lee Alford, the manager of Timber Procurement for CZ in 1978, shows that CZ verbally agreed to purchase Ponder’s timber pursuant to the terms contained in the written act of sale (timber deed) which was prepared by Vardaman and signed by Ponder on or before October 24, 1978. This verbal agreement to purchase was properly proven at the trial by Alford’s sworn testimony. La.C.C. arts. 2275 and 2440; Rubenstein v. Files, 146 La. 727, 84 So. 33 (1920); Larido v. Perkins, 132 La. 660, 61 So. 728 (1913); Perry v. Perry, 122 So.2d 829 (La.App. 1st Cir. 1960). This agreement to purchase would have been enforceable by Ponder against CZ (when proven by sworn testimony) except that on or about November 3,1978, CZ discovered the tax lien during a routine title check. I do not agree with the implication of the main opinion that an agent has produced a “ready, willing and able” purchaser for his principal s property even though there is no enforceable agreement between the parties. Sykora, The Law of Real Estate Brokerage: The Broker’s Commission, 41 La.L.Rev. 857, 878-915 (1981). To so hold would allow the agent to collect his commission even though an “empty sack” was delivered to his principal.' Vardaman may recover in this proceeding because it did procure an enforceable verbal agreement to purchase and the evidence does not reflect that Vardaman had prior knowledge of the tax lien.

ON APPLICATION FOR REHEARING

PER CURIAM.

The decision of this court was rendered on November 22, 1983, and mailed that same date. This application for rehearing was filed on December 15, 1983. Pursuant to La.C.C.P. art. 2166, as amended by Act 451 of 1983 and effective August 30, 1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.

      . "Art. 2275. Every transfer of immovable property must be in writing; but if. a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”
      “Art. 2440. All sales of immovable property shall be made by authentic act or under private signature.
      Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”


author:
REDMANN, Chief Judge.
      PER CURIAM.

text:
    STATE of Louisiana v. Bonnie SPARKMAN.
    No. K 1505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1983.
    Rehearing Denied Jan. 25, 1984.

      Harry F. Connick, Dist. Atty., Nancy Sharpe, Asst. Dist. Atty., New Orleans, for relator.
    Leon Cannizzaro, John Shambra, New Orleans, for respondent.
    Before REDMANN, C.J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

We granted review of the trial court’s refusal to disqualify Leon Cannizzaro as co-counsel for defendant because of his having acted in this criminal matter while employed by the state as an assistant district attorney.

Our order provided “defendant may file a brief ... and is invited to address La. DR 9-101(B).” It also ordered “defendant shall reply to the representation of the state’s application concerning Leon Canniz-zaro’s having acted in this matter as an assistant district attorney.” Defendant, served by certified mail to each of co-counsel, did not respond to our order.

We therefore accept as undisputed that “[w]hile Leon Cannizzaro was acting as Trial Chief [assistant district attorney] he reviewed [this] ease, State v. Bonnie Spark-man. His signature and notes appear inside of the case file. He authorized the reduction of the charge in this case from [La.R.S.] 14:65.1 to 14:27(65.1).”

La. DR 9-101(B) provides “A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.”

The reduction of a criminal charge from the completed crime to an attempt thereat is the exercise of substantial responsibility.

There is no evidence whatsoever that the lawyer gained knowledge in confidence while serving the public as an assistant district attorney and now uses that knowledge to serve defendant as defendant’s lawyer. Nor is there any evidence that the lawyer’s being hired as defendant’s co-counsel is a reward for his having exercised his public authority in favor of defendant. But because of the possibility of either such betrayal of professional trust, the appearance of professional impropriety is present even if none exists. See United States v. Kitchin, 592 F.2d 900 (5 Cir.1979).

The ruling complained of is reversed and Leon Cannizzaro is disqualified from acting as co-counsel for defendant in this matter.

PER CURIAM.

In their application for rehearing defense counsel have explained their failure to respond to the state’s application and have now argued their position — essentially, that Cannizzaro’s approval of the reduction of the charge against the defendant was no more than the result of accepting the trial assistant’s recommendation. Counsel argue that that is not “substantial responsibility” within DR 9-101(B).

We adhere to the position expressed in our original opinion.

Rehearing is therefore refused.


author: CURRAULT, Judge.

text:
    Patricia J. Bush, Wife of/and Joseph F. BUSH v. Grace A. Lee, Wife of/and Robert E. LEE.
    No. 83-CA-450.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Jan. 17, 1984.
    Writ Denied March 9, 1984.

      John M. Duck, Adams & Reese, New Orleans, for plaintiffs-appellees.
    Robert E. Lee, New Orleans, for defendants-appellants.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   CURRAULT, Judge.

Defendants Grace A. Lee, wife of/and ■ Robert E. Lee, attorney at law, appeal an adverse judgment rendered in an action brought by them to nullify a prior judgment. The prior judgment sought to be annulled was rendered against defendants pursuant to a petition for possession of property and eviction filed by plaintiffs Patricia J. Bush, wife of/and Joseph F. Bush who purchased the property at a Federal tax sale.

Because of the variety of motions and pleadings filed in the case which ultimately may have created some confusion in the rendition of the judgment sought to be annulled, a chronological history of the events is merited.

The record reveals that the Bushes, plaintiffs, purchased the property owned by the defendants, Lees, from the Internal Revenue Service, which property had been seized for defendants’ non-payment of delinquent Federal income taxes. Following the one hundred twenty (120) day right-of-redemption pursuant to 26 U.S.C. § 6337, the Internal Revenue Service issued a quitclaim deed to plaintiffs on March 12, 1981.

On April 16, 1981, plaintiffs filed a petition for possession of premises against defendants pursuant to LSA-C.C.P. arts. 4701 et seq.

On May 11, 1981, defendants filed a motion to consolidate this action with a defamation suit brought by them against plaintiffs, as well as an exception of no cause of action, an exception of unauthorized use of summary procedure, and an exception of no right of action. The motion and exceptions were set for hearing on June 5, 1981.

Following a bench conference with the court, on May 15, 1981, the parties agreed to submit the matter on written stipulations as appears from the minute entry dated that same day. Plaintiffs then moved to admit the certificate of sale of seized property and deed into evidence, and by order of May 19, 1981, the trial judge admitted the documents into evidence.

On May 20, plaintiffs filed & memorandum in opposition to the motion to consolidate and on the same date filed a memorandum in opposition to the peremptory -and dilatory exceptions of no cause of action and no right of action, previously asserted by the defendants. On the same date, defendants filed an exception of Us pendens, a motion for bond for costs, a motion for continuance, and the amendment to an exception of unauthorized use of summary proceedings.

Subsequently, by an ex parte order of May 28, the trial court continued the hearings previously set on the various motions from June 5 to September 4, 1981.

On June 2, plaintiffs filed an opposition to the motion for continuance and requested the court to reconsider a continuance of the hearings. However, minute entries of June 5, 1981 and June 12, 1981 reflect that the matter was submitted by stipulation of the parties; and on July 6, the trial judge entered a judgment for plaintiffs. Pursuant to the judgment, a writ of possession was issued commanding the defendants to surrender the premises to plaintiffs. In the written reasons for judgment, the court disregarded the numerous exceptions and dilatory pleadings filed by the defendants, finding them to be without merit and to have been filed only for the purpose of delay. On July 7, defendants filed a motion for a suspensive appeal and the court ordered defendants to file a bond in the amount of Two Hundred Fifty and No/100 Dollars ($250.00).

Plaintiffs then filed an ex parte motion to rescind the order granting the suspen-sive appeal for failure of the defendants to file the appeal bond within the 24-hour period as required by LSA-C.C.P. art. 4735 and due to the defendants’ failure to file verified pleadings setting forth affirmative defenses.

On July 9, the motion was granted, rescinding the July 7 order for the suspensive appeal on the basis that defendants had not filed the $250 bond as of that date.

On July 10, defendants moved for a new trial or a rehearing contending that no stipulations were entered into on June 12, and also contending that plaintiffs had obtained nothing more than a “quit-claim deed” from the Internal Revenue Service.

On July 13, defendants filed a notice of appeal and for writs of certiorari, mandamus, prohibition and for a stay order relative to the rescission of the suspensive appeal filed July 7,1981. A stay order was granted and writs were taken to the Louisiana Fourth Circuit Court of Appeal which denied the writs, stating the appeal bond was filed untimely. On July 15, the Louisiana Supreme Court also denied the writs.

Thereafter, on July 17, defendants’ motion for a new trial, filed on July 10, was denied. On that same date, defendants were granted another suspensive appeal. Subsequently, defendants moved for an extension of time within which to pay appeal costs; and, by order of September 4, 1981, defendants were granted fifteen days to pay the same.

Plaintiffs then sought to dismiss defendants’ second suspensive appeal; and, on September 14, the Louisiana Fourth Circuit Court of Appeal rescinded the July 17 order granting the suspensive appeal and granted plaintiffs’ motion to dismiss on the basis that no appeal lies from a denial of a motion for a new trial.

Thereafter, on October 5, 1981, defendants filed a petition to annul the original judgment of possession, the merits of which were heard on February 25, 1982. .. Along with the merits, the court also considered and rejected a motion to re-open the case filed that date by defendant and denied a motion for summary judgment filed by plaintiffs previously. The court then took the case under advisement.

Subsequently, plaintiffs apparently filed a motion for new trial to admit newly discovered evidence and another hearing was set for August 13, 1982. A partial hearing on that date was continued and the ease was heard again on September 21 and November 5, 1982.

Following these four hearings, the trial court rendered judgment on December 20, 1982 in favor of plaintiffs, dismissing the petition to annul the judgment of eviction. As a result, defendants perfected this de-volutive appeal from that judgment, following which plaintiffs filed an exception of res judicata; and, in oral argument to this court, requested damages for frivolous appeal and attorney’s fees.

In brief to this court, appellants assert the trial court erred in failing to find ill practice was committed by appellees under the facts.

The issues as presented by appellants are as follows:

(1) Is it an ill practice by counsel for plaintiffs after receiving numerous pleadings from defendants’ counsel to contact the trial judge and the judge’s minute clerk and deliberately misrepresent to the judge and minute clerk that defense counsel has abandoned his defense and that defense counsel has no objection to a judgment being given against him?

(2) After receiving a motion for continuance from defense counsel and notice from the court that the previous rule date set for June 5, 1981, has been continued to September 4, 1981, and that defense counsel will be out of the country until after July 11, 1981, is it then an ill practice to contact the trial judge and his minute clerk and another judge in order to reverse still another judge’s order through ex parte proceedings without notifying defense counsel or giving defense counsel an opportunity to argue?

(3) Is it an ill practice for plaintiffs’ counsel to use a copy of a letter addressed to a third party which simply stated what another lawyer and defense counsel were attempting to achieve in resolving the aforementioned rule for possession to convince the trial judge and his minute clerk that defense counsel had abandoned his defense (house and law office) and especially in advance of a granted motion for a continuance?

(4) Is it an ill practice for defense counsel to commit the foregoing acts when he knew that defense counsel had at least three years to redeem his property but nevertheless get his judgment within six months of filing his petition for possession?

(5) In view of the foregoing acts by defense counsel, has a fraud been perpetrated on at least one court or were said acts innocent misrepresentations by an inexperienced attorney which caused at least the trial judge to commit judicial error when he signed the judgment complained of?

(6) Under Louisiana code authority and Louisiana jurisprudence, if a judgment has been obtained by fraud or innocent misrepresentations, is said judgment entitled to be annulled and/or set aside in the interests of justice and fair play?

In several issues presented by appellants, it is asserted that appellees misrepresented to the trial court, either innocently or fraudulently, that appellants abandoned its defenses to the suit causing the trial judge to erroneously render a decision in advance of the scheduled trial date. Appellants argue those actions of appellees subject the judgment to annulment for fraud or ill practice under LSA-C.C.P. art. 2004.

LSA-C.C.P. art. 2004 provides:
“A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

The legal test for determining whether or not a judgment has been obtained by “actionable fraud or ill practices” is whether (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) the enforcement of the judgment would have been unconscionable and inequitable. Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), rehearing denied.

In Smith v. Cajun Insulation, Inc., 392 So.2d 398, 401 (La.1980), the Louisiana Supreme Court discussed LSA-C.C.P. art. 2004, stating:

“The action provided by this article is not a substitute for an appeal from a judgment that might be erroneous due to insufficiency of evidence or misinterpretation of substantive law, but, rather, is a separate remedy designed to afford relief against a judgment procured by methods viewed with disdain by the judiciary. Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (La.1949); Schoen v. Burns, 321 So.2d 908 (La.App. 1st Cir.1975); Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir.1969), writ ref. 254 La. 858, 227 So.2d 596. In discussing ‘ill practices’ under the Code of Practice, art. 607, the predecessor of La.C.C.P. art. 2004, this Court stated in Alonso v. Bowers, 22 La. 1093, 64 So.2d 448 (La.1953): ‘Under the jurisprudence any improper practice or procedure which enables a party to obtain a definitive judgment comes within the meaning of this article. The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment.’
This language has been clarified to mean that there need not necessarily be a showing of intentional fraud or wrongdoing for a plaintiff to prevail. Even innocent acts which deprive a party case (sic) in judgment of some legal right can form the basis of this nullity action. Leidig v. Leidig, 187 So.2d 201 (3d Cir.1966); Collins v. Collins, 325 So.2d 773 (La.App. 2d Cir.1976); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1st Cir.1963), writ den. [245 La. 641], 160 So.2d 228 (La.1964).” (Emphasis added)

As in any other action, however, the question of whether ill practice occurred is a factual one, and the findings of the trial court in this regard are subject to great weight on appeal. Those findings may not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973), reh. den.; Collins v. Collins, supra.

The trial court herein found that there were no ill practices, and that plaintiff failed to carry its requisite burden of proof. The trial court also determined that several allegations in the petition for nullity were res judicata as they either related to issues concerning the rescission of appellants’ two suspensive appeals or to the merits of the case.

The facts show that the nullity action arose from a confusing series of events which led to a judgment on the record adverse to appellants. Appellants attempted to perfect a suspensive appeal, but the appeal was rescinded by ex parte order of a substitute judge for failure to timely file the required bond. No devolutive appeal was requested. Writs were taken on the issuance of the ex parte rescission on the time required to file bond, which were denied by both the Fourth Circuit Court of Appeal and the Louisiana Supreme Court. Thus, barring a finding of nullity by this court, the judgment complained of is final and definitive. Appellant argues herein that the case was decided based upon written stipulations not actually in the record and upon the appellees’ misrepresentation to the trial court through a phone call in which a letter written by appellant Lee was used to convince the judge that defendants had abandoned their case and had no objection to judgment being rendered against them.

The minute entry in the record reflects that apparently the parties agreed on May 15 at a bench conference to submit written stipulations of fact since apparently there were no factual issues in dispute. Also apparently the parties were intending to submit the case on the record containing the written stipulations. The record then reflects that the stipulations were rejected by appellant Robert Lee who, it should be noted, is an attorney at law and represented himself and his wife in these proceedings. The stipulations were rejected because of the use of the word “quit-claim” deed as opposed to “deed.” The dispute was not resolved, no written stipulations of fact were ever filed, and appellant continued to file various pleadings into the record, one of which resulted in a continuance of the scheduled hearing to September 4, 1981. However, on June 1, appellees’ law firm received a letter from appellant Robert Lee in reference to a proposed status conference on the case in question. In that letter, Mr. Lee unequivocally states that the case was submitted and that no conference was necessary. Confusion as to whether it was the party’s intent to submit the case without stipulations or not apparently rises from the minute entry of June 5 and June 12 which states respectively that, “All rules and exceptions submitted by stipulation” and “Submitted on stipulation dictated into record”. The dictated stipulation is as follows:

“Allright gentlemen, I understand from our bench conference that you all are going to draw up a written stipulation attached thereto certain documents which you agree to authenticity and submit the matter on that written stipulation and documents in the record in this case. Do you want to submit memos of argument with that?
Mr. Lee: All I need submitted is already in the record, your Honor.
Mr. Allday: I have a memoranda (sic) that I would like to submit.
The court: Allright, if you feel you would like to respond to his memoran-da let me know, Mr. Lee, before I decide the case.”

Sometime between June 5 and June 12, the court spoke to a member of appellees’ firm who informed the judge that he thought the case was submitted by “virtue of a stipulation even though they (appellants) filed some pleadings after that.” Apparently the difficulty herein arises from the use of the word “stipulation” in the minutes to refer both to a stipulation that the case was submitted, as well as to the intent of the parties to submit the case upon written stipulation of facts which thereafter failed to materialize in the record.

Nevertheless, the testimony indicates that it is probable that the June 1 letter was a primary indication of appellants’ agreement in this regard. Appellant argues, however, that appellees’ phone call referred the judge to the letter improperly and was a deliberate effort to secure a judgment in their favor while appellant was supposedly out of town.

In rendering the original judgment of July 6, 1981, the trial judge states, “The court considered the pleadings, the stipulations of counsel and the argument of counsel....” In the nullity hearing, the judge in the original matter was called to testify and stated that he believed the case had been submitted for decision, but could not remember if he based his decision on written stipulations he assumed were in the record but were not in fact. However, he assumed that his actions in proceeding to decide the case would have been influenced by Mr. Lee’s letter of June 1, 1981, a copy of which was sent by Mr. Lee to the trial judge and which was made part of the record. Contrary to appellants’ argument, there is no evidence the trial judge was either told by appellee or led to believe by any party that appellant had abandoned his defenses. A review of the record and testimony, along with the letter by appellants, indicates that when the judge decided the case July 6, 1981, both he and the appellees were under the impression that the case, with or without written stipulations of fact, had been submitted for decision solely on the documents and pleadings in the record with appellants’ knowledge and consent. Thus, at least with respect .to these actions complained of, the trial judge cannot be said to have committed manifest error in rejecting appellants’ claim of fraud or ill practice.

Appellants’ remaining allegations presented to this court attack as ill practice the actions taken by appellee in rescinding the suspensive appeal by ex parte order, as well as the actions of appellee in securing a judgment under an alleged improper proceeding under the law.

In response, appellee filed an exception of res judicata pursuant to LSA-C.C.P. art. 2163.

The record reflects that the trial court found a number of the allegations in the nullity petition res judicata, including the two aforementioned allegations of ill practice presented to this court.

LSA-C.C. art. 3556(31) defines res judi-cata as follows:

“Thing adjudged. — Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.”

Secondly, LSA-C.C. art. 2286 provides that for a judgment to have the authority of the thing adjudged, it must meet the following requirements:

“The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Appellant argues that appellees committed ill practice in failing to inform the judge involved in the ex parte motion to rescind appellants’ suspensive appeal of the judgment of possession and eviction of two cases which it claimed implicitly overruled the 24-hour bond requirement under LSA-C.C.P. art. 4735. Appellants, however, presented the same argument of the validity of the 24-hour requirement to the Fourth Circuit Court of Appeal and the Louisiana Supreme Court, both of which rejected appellants’ argument. Whatever occurred at the trial court level, in this respect, the trial court properly determined the decision rendered the issue of timeliness res judicata. Furthermore, this allegation is irrelevant to the question before this court since the events occurred subsequent to rendition of the judgment of possession. It is that judgment appellants seek to have annulled.

Appellants’ remaining allegation asserts that appellees committed ill practice by knowingly pursuing their action through improper articles of eviction. The issue as to whether the code articles used for the eviction procedures were proper under the law was squarely before the trial court by virtue of appellants’ exceptions. The trial judge rejected the argument; and, thereafter, appellants’ remedy was appeal. Appellant failed to perfect either a suspen-sive or devolutive appeal; and, thus, the decision attained the status of res judicata. As stated earlier, an action for nullity is not a substitute for the appeal process. Smith v. Cajun Insulation, Inc., supra.

As to the actions of appellees in pursuing their claim in this regard, it is the duty of counsel to zealously pursue all avenues of legal remedies for the client so long as those actions are neither unethical or unconscionable. Contrary to appellants’ assertions, the evidence suggests that any legal remedies appellants were deprived of were lost due in great part to appellants’ own actions. Thus, again, the court must conclude that the trial judge was not clearly wrong in his findings.

Finally, in oral argument appellees presented a demand for damages and attorney’s fees for a frivolous appeal. Damages and attorney’s fees for frivolous appeal must be raised either in an independent appeal or in a timely answer to appellants’ appeal. LSA-C.C.P. art. 2133; Cheramie v. Vegas, 413 So.2d 1343 (La.App. 1st Cir.1982); Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123, writ denied 371 So.2d 836 (La. 1st Cir.1979).

Thus this court is precluded from considering the request brought for the first time in oral argument.

In summary, after a review of the law and the evidence, we find that the trial court was not clearly wrong in determining that appellants failed their burden of proof and that no ill practice occurred which would nullify the judgment of possession and eviction. In addition, appellees’ demand for damages for frivolous appeal and attorney’s fees will not be considered as the demand is not properly before the court.

For the foregoing reasons, therefore, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by appellants.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of the EVENSON CHILDREN v. June Evenson HARBAUGH and Charles Harbaugh.
    No. 83-CA-485.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Philip E. O’Neil, Gretna, for defendants-appellants.
    Guy DeLaup, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal originates in Juvenile Court, Division “C”, Parish of Jefferson, wherein the Honorable Nancy Amato Konrad ordered that the custody of the five Evenson minor children remain with the Department of Health and Human Resources. The mother, June Evenson Harbaugh, and stepfather, Charles Harbaugh, have appealed.

June Evenson and Charles Harbaugh arrived in Jefferson Parish sometime in August, 1982. Traveling with them were Ms. Evenson’s five minor children: Dennis, age 13; Denise, 11; Douglas, 9; Dakota, 3; and David, 1.

Initially the couple traveled from South Dakota where Ms. Evenson is a native. However, due to hard economic times and the promise of a brighter future, the couple left South Dakota for New Orleans where Mr. Harbaugh is a native with family. However, subsequent to their arrival in the New Orleans area, they left for work in Corpus Christi, Texas. For reasons we are not aware of, that was not prosperous and the couple returned in August, 1982 to Jefferson Parish for a second time.

When they returned in August of 1982, all seven were living in a car as they were out of work and without money. After befriending a Mrs. Curillo for only three weeks, the couple decided to place the five children with her.

Approximately one week later, Mrs. Virginia Valentine, Manager of Mrs. Curillo’s apartment, called the police. Mrs. Valentine decided to call the police only after noticing the children were dirty, had sores, appeared hungry and in need of medical care, and were being locked out of the apartment.

The children were taken into the custody of the Office of Human Development on September 24, 1982, based upon Ms. Even-son’s inability to provide adequate food, shelter and medical care. After being taken into custody, the children were treated for scabies at Charity Hospital. Subsequently, Dennis and Douglas were placed in the Methodist Home. Denise, Dakota and David were placed in a foster home.

On October 6, 1982, a continued custody hearing was held and the court found probable cause to continue custody with the State. On November 3, 1982, an adjudicatory hearing took place and the State maintained custody because Ms. Evenson, through her attorney, stipulated that her children were in need of care. A treatment plan and service agreement were also reached between the Office of Human Development and Ms. Evenson.

A dispositional hearing was held on February 10, 1983. After taking evidence and hearing testimony, the trial court continued the children in the custody of the State. Defendants have now appealed asserting two errors.

Appellants contend the trial court judge erred in the following respects:

(1) it was error for the trial court to continue custody of appellant’s five children with the State on the basis of an alleged stipulation by appellant which is not found in the record and which was not voluntarily and knowingly consented to by appellant; and that

(2) the trial court erred in continuing the custody of appellant’s five children with the State when the record reflects that appellant and her spouse were able to provide adequately for appellant’s five minor children.

Appellant’s first error is in reference to the adjudicatory hearing held November 3, 1982. Appellant asserts that at that hearing the trial judge based his decision on an alleged stipulation by appellant that her children were in need of care. Appellant argues that there is no such stipulation in the record and that such an admission was never made. Appellant further asserts that the trial court assumed that she had voluntarily and knowingly admitted that her children were in need of care when, in fact, there is no testimony by her to support this.

It appears appellant argues in the alternative that she was not adequately advised that she was admitting that her children were in need of care.

At the adjudicatory hearing, appellant was represented by counsel. As her counsel opened and addressed the court, he stated that he had discussed the matter with appellant and that it was her wish to stipulate and agree to the terms of the petition as stated. Moments later, appellant’s attorney again states that he had explained to her what they were going to do and reiterated expressly that they were stipulating that the children were in need of care. When asked squarely by Assistant District Attorney Guy deLaup if this stipulation was by the mother (appellant), her attorney responds yes.

The record is replete that a stipulation was made that the children in question are children in need of care. It is additionally clear that this stipulation was discussed with the mother and that she acquiesced in the making of that stipulation knowing that by agreeing to such stipulation she would be leaving that hearing without her children. We reach this conclusion based on the appellant’s short testimony that her only problems experienced were with the visitation of her children, and her only expressed wish at this hearing was that she be granted overnight visitation privileges.

Appellant, in argument, fails to point to any specifics as to why the stipulation was not made freely and knowingly. The record and appellant’s brief are void of even an iota of evidence which would convince this court that appellant was inadequately advised as to what she was stipulating to. Accordingly, we find appellant’s first assignment of error to be without merit.

Secondly, appellant contends the trial court erred in its judgment of the dispo-sitional hearing by continuing custody of the children with the State. Appellant asserts the record amply demonstrates that she and her new spouse are able to provide adequately for the children.

An agreement was entered into between the Office of Human Development and appellants, June Evenson and Charles Har-baugh, whereby the appellants were to comply with certain covenants before the children would be returned to their custody. Pertinent are the agreed terms of housing, income and counseling. Those provisions are as follows:

Housing and Income:

Ms. Evenson and Mr. Harbough will make every effort to maintain a stable residence and a stable income with the goal of eventual adequate support of the Evenson children. They are to pursue the rental of an apartment large enough to adequately house themselves and their five children.

Counseling:

As recommended by the psychological of 12/8/82 Ms. Evenson (and Mr. Har-baugh) will regularly attend substance abuse counseling for alcohol and drug counseling with medical blood tests to determine level of abuse or abstinence for case documentation.
As recommended by the psychological evaluation Ms. Evenson will pursue treatment at the Charity Hospital Abuse Unit with hospitalization, if this is indicated as necessary by the attending psychiatrist at Charity. This treatment will continue until the counselor/physician deems it is no longer necessary.

This agreement was entered into prior to the adjudicatory hearing. Subsequently, at the dispositional hearing, the Juvenile Court judge concluded in her written reasons:

“This Court is of the opinion that in the instant case it would be detrimental to the children’s health, safety and welfare to allow them, at the present time, to be returned to their mother. Mrs. Evenson has not sufficiently refuted the prior evidence of substance abuse and her inability to provide adequate food and shelter for her children.”

At the time the children were left with a caretaker, the appellants and all five children were living in the family car. After the children were placed in the State’s custody, appellants obtained a small one-bedroom apartment. At the adjudicatory hearing, overnight visitations were denied because such visitations were not feasible due to the size of that apartment.

At the dispositional hearing, the appellants testified they had moved into a two-bedroom apartment. However, they would not agree to disclose the address of their apartment to the Office of Human Development social worker. Accordingly, the juvenile court judge concluded:

“... that the failure of the parents to communicate to the Office of Human Development worker their new address and their failure to allow the Office of Human Development to investigate this new home indicated that the parents could not provide adequate food and/or shelter to the children.
The parents’ self-serving declaration that they no longer lived in a one-bedroom apartment was unable to be verified by any other independent source.”

As to drug and alcohol abuse, the appellants agreed to attend substance abuse counseling. They did attend such counseling but only three times. Sufficient documentation which would verify appellants’ discontinuance of alcohol or drugs is lacking.

The juvenile court’s judgment will not be overturned absent a clear showing of abuse of discretion; and, in deciding whether or not such abuse has been shown, we are concerned solely with the best interest of the children. We balance our concern for their interest with the long-standing rules that the rights of the parents are preferred to those of a non-parent and that the State’s care is no substitute for the natural parents’ love and affection.

With these guidelines in mind, we find no abuse by the juvenile court judge in ordering that custody remain with the State. We are faced with a mother who, in another state, had her children removed from her because of substance abuse. Past medical history revealed heavy use of PCP, mescaline, acid and marijuana. There is some evidence that she was hospitalized at one time in a South Dakota state hospital for this substance abuse. At the time the children were removed from her by this state, it is quite clear she was involved with an alcohol problem and was emotionally unstable.

The juvenile court imposed conditions upon appellants which the court felt had not been met satisfactorily. The measures taken by the juvenile court judge demonstrate clearly her concern for the health, safety and welfare for these children. We find no reason to disturb her conclusions.

Accordingly, for the above stated reasons, we affirm the decision of the juvenile court continuing custody of the Evenson children in the State of Louisiana. Appellants are to pay all costs of this appeal.

AFFIRMED.


author: GAUDIN, Judge.

text:
    TUBULAR THREADING, INC. v. Sam Z. SCANDALIATO and Sam Z. Scandaliato and Associates, Inc.
    No. 82-CA-165.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.

      Earl S. Eichin, Jr. and M. Lizabeth Tal-bott, of Barham & Churchill, New Orleans, for defendant-appellant.
    Michael H. Piper, III, New Orleans, for plaintiff-appellee.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

This litigation was instituted in the 24th Judicial District Court by Tubular Threading, Inc. under the Uniform Trade Secrets Act, LSA-R.S. 51:1431 thru 1439. Named defendant was Sam Z. Scandaliato and Associates, Inc., a consulting civil engineering firm.

Scandaliato had designed and built a 14-part pipe-handling system for Tubular Threading.

Following a three-day trial, the district judge (1) found that the pipe-handling system qualified for protection under the Uniform Trade Secrets Act and (2) permanently enjoined Scandaliato from using, selling, distributing or otherwise disseminating any shop drawing or other document relating to the pipe-handling.

On appeal, Scandaliato contends that the pipe-handling system should not be protected under the act and, further, that Scandal-iato had not misappropriated any alleged trade secret.

For reasons following, we affirm the trial judge’s determination that Tubular Threading’s pipe-handling process can be placed within the confines of the Uniform Trade Secrets Act. The trial judge, however, did not find either a present need for the injunction or an actual or threatened misappropriation of the trade secret. Accordingly, we void and set aside the permanent injunction.

BACKGROUND

Tubular Threading was a relatively new company in early 1981 when it retained Scandaliato to design and build a system of handling and threading pipe for oilfield use. During the negotiations, Tubular Threading’s spokesman was Glen Jordan while Scandaliato was represented by its president, Sam Z. Scandaliato, and vice president, Yasand Kale. Mr. Jordan was advised by Robert Albert, who was employed at the time by another company but who was to become president of Tubular Threading in May of 1981.

Jordan and Albert provided ideas and Scandaliato the engineering expertise, and the result was a 14-part system that handled pipe from the time it entered the plant until it was threaded and ready for release. Albert said the project was “... a combined effort of the two, input from us as to what we wanted and their engineering ...”

While none of the components was unusual, the sequence of the parts made the system unique, according to Jordan and Albert.

Jordan said:
“... I feel that all of the drawings, all of the information regarding our handling system was proprietary and confidential.”

Kale testified that it was he who suggested the alignment method, the service bay, the hydraulic jack system and other components, and that Scandaliato as the consulting engineer owned the drawings.

Later, after Tubular Threading’s shop was in full operation, Jordan and Albert suspected that Scandaliato had designed and was building a similar system for another company, and this lawsuit was filed.

THE TRIAL

The trial judge heard conflicting testimony regarding the planning and design of Tubular Threading’s pipe-handling layout and he heard testimony about Tubular Threading’s efforts to safeguard its system. He decided that the pipe-handling sequence could be classified as a trade secret under the act and that it met the criteria enunciated in R.S. 15:1431, to wit:

(1) It was a method or process that had economic value,

(2) The method or process was not generally known and was not readily ascertainable by other persons, and

(3) Reasonable efforts had been maintained to preserve the system’s secrecy.

The Uniform Trade Secrets Act is new, and there are no Louisiana court decisions applicable to the instant case. A “trade secret” as defined in the act can include “a formula, pattern, compilation program, device, method, technique or process,” and we cannot say that the trial judge was wrong when he placed Tubular Threading’s pipe handling system within the broad definition of a “method, technique or process.”

Nor can we say that the trial judge was manifestly wrong when he factually found that the method or process had value and that it was not generally known, that the setup was not readily ascertainable and that reasonable steps had been taken to keep the method or process a secret. The record supports these findings, and we will not disturb them. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

True, some people had seen the system functioning, but mostly these were customers, potential customers or workers who had installed the various components.

Gary Grabenstatter also observed the system. He was employed by another company at the time and was in Tubular Threading’s facility seeking employment. Grabenstatter, an engineer, said that the system couldn’t be duplicated without the drawings.

The Tubular Threading plant is not open to the public and is situated on a five-acre tract surrounded on all sides by an eight-foot fence topped with barbed wire. Entrance is through a single driveway off the River Road. Vacant five-acre tracts are on either side of the plant; and to the rear, across several railroad tracts, is a non-functional part of Celotex.

With the exception of one integral member (the alignment conveyor), the pipe-handling arrangement is housed in a metal frame building.

In the “Comments” under R.S. 51:1431, it is noted that “... public disclosure of information through display, trade journal publications, advertising, or other carelessness can preclude protection.” The efforts required to maintain secrecy are those reasonable under the circumstances, and courts do not require extreme and unduly expensive procedures be taken to protect trade secrets. E.I. DuPont de Nemours & Co., Inc. v. Christopher, 431 F.2d 1012 (CA5, 1970), writ denied at 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971).

Here, the trial court found Tubular Threading’s efforts to maintain its trade secret reasonable, and we cannot disagree.

Appellant also contends that Tubular Threading “let the cat out of the bag” during the trial and that if the process was secret, it is no longer. Various witnesses described parts of the system, and photographs were put in evidence.

R.S. 51:1435 says that “... a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders ..., holding in camera hearings, sealing the records ... and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.”

Tubular Threading did not ask that any of these protective measures be invoked, and Scandaliato suggests, in its brief, “... that it is possible to read this record and know how pipe flows through the Tubular facility ...” This, however, is appellant’s assertion and not the testimony of a knowledgeable witness; and, considering the record, we are in no position to say that the entire sequence was explained in such detail that any prior secrecy is now moot.

INJUNCTIVE RELIEF

We will now examine the panoramic and far-reaching scope of the injunctive order, which reads:

“IT IS ORDERED that a permanent injunction issue herein, directed to Sam Z. Scandaliato & Associates, Inc., its agents, employees, all other persons, firms or corporations, acting or claiming to act in its behalf or with its authority, enjoining and restraining them from using, make use of, selling, distributing or otherwise disseminating any of the shop drawings, engineering drawings, design drawings, plans and specification, or other documents relating to the manufacture and construction of the Tubular Threading, Inc. material handling system, and also from using, continuing to use, disclosing and continuing to disclose, all trade secrets and proprietary and confidential information, including the concept and design relative to the sequence of components of the material handling system of the Tubular Threading, Inc. plant in Marrero, Louisiana.”

Appellant argues that its skill, engineering knowledge and experience are being suppressed and that the court shouldn’t hinder it from designing other pipe-handling systems using any or all of the 14 components in Tubular Threading’s system.

In his “Reasons for Judgment,” the trial judge said:

“The Court was not convinced that defendant had violated any ethical canons of the engineering profession. The Court was not convinced that defendant had duplicated drawings of plaintiff for other clients. The Court was also not convinced that defendant had violated trade secret laws at this time. However, the Court was convinced that a judicial determination of the issues involved herein was necessary to forestall future problems.”

An injunction is a harsh, drastic and extraordinary remedy and will issue only if the party seeking same is threatened with irreparable loss or injury without adequate remedy at law, as pointed out by the Supreme Court of Louisiana in Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969).

The applicant must also show that the threat is immediate and that there is a clear and present need for it. An injunction cannot be based on mere speculation. See State Board of Education v. National Collegiate Athletic Ass’n, 273 So.2d 912 (La.App. 3rd Cir.1973), and Town of Kinder v. Beauregard Electric Co-op, Inc., 339 So.2d 891 (La.App. 3rd Cir.1976).

In cases involving trade secrets, R.S. 15:1432 directs the court to issue injunctions but only actual or threatened misappropriations may be enjoined.

In the instant matter, the trial judge said that he was not convinced that Scandaliato had violated any ethical canons of the engineering profession, duplicated Tubular Threading’s drawings or violated any trade secret laws. The injunction was “... to forestall future problems.”

The trial judge’s language indicates that his order was not necessitated by a clear and present need. The trial judge found no actual or threatened misappropriation of a trade secret as required by R.S. 51:1432, and the record does not show that there was either an actual or threatened misappropriation. Accordingly, the injunction was inappropriate, no matter how well-intentioned the trial judge was.

CONCLUSION

The trial judge qualified Tubular Threading’s 14-component pipe-handling system under the Uniform Trade Secrets Act and we will not reverse or modify this determination. However, as the trial judge did not find either a present or compelling need or an actual or threatened misappropriation, the injunction was inappropriate. Consequently, we will nullify and set aside the injunctive order directed to Sam Z. Scandaliato and Associates, Inc. In all other respects, the judgment of the district court dated May 14, 1982 is affirmed.

Each party is to bear its own appeal costs.

AFFIRMED IN PART, REVERSED IN PART.


author: GRISBAUM, Judge.

text:
    Dale THIBODAUX v. ACME TRUCK LINES, INC., Frederick Harding, and the Continental Insurance Companies.
    No. 83-CA-456.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Writ Denied Feb. 10, 1984.

      Thomas L. Giraud, New Orleans, for plaintiff-appellee.
    Carlos E. Lazarus, Jr., Houma, for defendant-appellant.
    Before BOUTALL, BOWES and GRIS-BAUM, JJ.
   GRISBAUM, Judge.

This is a personal injury case resulting from an automobile accident. The issue is whether the trial court erred in its damage award of $958,638.33. Defendants, Acme Truck Lines, Inc. and Continental Insurance Company, appeal the awards for loss of past earnings, future medical, and future earnings. They claim these are contrary to the evidence and not supported in the record. They also contend the award of general damages, which includes past medical, past pain and suffering, and future pain and suffering, is excessive and not supported by the evidence. We amend and, as amended, we affirm.

The specific issues are:

(1)Whether the trial court abused its discretion in awarding $350,000 in general damages (past and future pain and suffering).

(2) Whether the trial court abused its discretion in awarding $30,000 for loss of past earnings.

(3) Whether the trial court abused its discretion in awarding $565,000 for loss of future earning capacity.

(4) Whether the trial court abused its discretion in awarding $5000 for future medical expenses.

Plaintiff, Dale Thibodaux, initially brought suit against Frederick Harding [the driver of an Acme Truck Lines’ vehicle], Acme Truck Lines, Inc., and Continental Insurance Company [Acme’s insurer] for damages as a result of a rear end collision in which Thibodaux was a guest passenger in his own vehicle. The record indicates no service on Harding. The suit against Harding was severed prior to trial. Although the defendants did not stipulate to liability, it was not contested. The degree and extent of Thibodaux’s injuries and the damages for these injuries were the sole issues before the trial court. On January 10, 1983 the district court rendered a judgment in favor of plaintiff as follows:

Future medical expenses — $ 5,000.00
Loss of earnings from the time of the accident to the time of trial— $ 30,000.00
Future loss of earning capacity— ^ $565,000.00
Accrued medical expenses— $ 8,638.33
Past pain and suffering — $ 50,000.00
Future pain and suffering — $300,000.00

After the accident, Thibodaux initially saw Dr. Joseph Powell, a general surgeon, who eventually referred him to Dr. Kenneth Adatto, an orthopedic surgeon. Over a six-month period, he saw Dr. Adatto on three different occasions. Initially, he was given muscle relaxers. In October 1981, he was improving but was still experiencing discomfort. However, in December 1981, some six months after the accident, Dr. Adatto had a CAT sean, EMG, and nerve conduction tests performed. Because the tests revealed spinal problems, Thibodaux elected to have surgery. The surgery revealed he had two ruptured discs.

In addressing the initial issue as to whether the trial court abused its discretion in awarding $350,000 for general damages (future and past pain and suffering), we recognize the courts of appeal have a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits, determining whether a court has abused its “much discretion” that the law accords it in awarding damages. La. Const, art. 5, § 10(B); La. Civil Code art. 1934(3); Reck v. Stevens, 373 So.2d 498, 499-501 (La.1979); Wilson v. Magee, 367 So.2d 314, 315 (La.1979); Coco v. Winston Industries, 341 So.2d 332, 335 (La.1976). We further recognize before we can disturb an award made by the trier of fact, the record must clearly reveal that the trier abused its discretion in making an award. Coco, supra. Finally, as stated in Reck v. Stevens, 373 So.2d 498, 501 (La.1979), the initial inquiry must always be directed at whether the trier’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s much discretion.

Recognizing these statutory and jurisprudential guidelines, we initially review the plaintiff’s age, physical condition and work habits prior to the injury, and the effects of the accident upon this particular plaintiff. At the time of the accident, Thi-bodaux was 35 years old. He was in good health and had no previous back problems; he slept well, hunted, fished, played ball with his children, and was generally a very active person. Finally, for approximately 10 years prior to the accident, Thibodaux was a relatively successful farmer in his area.

Since his accident, he testified, along with his brother and his wife, that his life is radically different. He further states he is in constant pain and is relieved by taking three or four hot showers a day. He feels he cannot work without pain. He also states his activities have been reduced to zero. Specifically, he complains he cannot work, wash his car, help around the house, mow his lawn, hunt, or fish, nor can he concentrate due to the pain. Moreover, he and his wife both testified their marital relationship has been affected. The quality and frequency of their sexual experiences have been adversely affected. Thibodaux has also expressed fear in attempting all physical activities because these may aggravate his back condition.

The medical testimony reveals, from the time of the accident to the time of the trial, Thibodaux suffered in excess of a year the mental and physical pain relating to ruptured discs. Equally important, the medical testimony reveals that Thibodaux will never again be able to work as a farmer; consequently, this plaintiff’s financial and social lifestyle will be dramatically changed for the remainder of his natural life. Therefore, this court is satisfied, from its analysis of these particular facts, the trial court did not abuse its much discretion in awarding $50,000 for past pain and suffering and $300,000 for future pain and suffering.

In addressing the issue of whether the trial court abused its discretion in awarding $30,000 for loss of earnings from the time of the accident to the time of the trial, we note the actuarial testimony of Mr. Philip J. Clesi who established a base average earnings as of the time of Thibo-daux’s injury on July 31, 1981 of $22,718. Using this base figure through December 13, 1982, the date of trial, Mr. Clesi computed plaintiff’s loss of wages at $31,101. No alternative means for calculating past lost wages is presented by the evidence. Furthermore, plaintiff’s expert made reasonable calculations despite the complexity of determining Thibodaux’s wages as a farmer. We find the trial court’s reliance on this expert’s findings does not constitute an abuse of discretion.

We now turn to the question of whether the trial court abused its discretion in awarding $565,000 for loss of future earning capacity. The general rule in this area is a rule of reason and common sense which is applicable to contracts and torts alike. Folse v. Fakouri, 371 So.2d 1120, 1123 (La.1979). The Louisiana Supreme Court in Folse v. Fakouri, citing the Coco case, stated:

What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn.

The Folse court further stated:

Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury. Folse, supra.

Plaintiffs actuarial expert testified as to his methodology in calculating Thibodaux’s loss of future income based on Thibodaux’s occupation as a sugarcane farmer. Mr. Clesi took the gross earnings of Mr. Thibo-daux for each year from 1976 through 1981 and adjusted them to the 1981 year based on the consumer price index. Prom this initial calculation he arrived at an average of $22,718 for estimating his future income. In addition, at the time of trial, he determined the life-work expectancy to be 25.718 years. Thereafter, he calculated the non-financial business section [non-financial meaning farming] growing at 1.4 percent, added to that 4.82 percent [the inflation factor], and arrived at a 6.22 percent real wage growth. Finally, he took a 1.65 percent real return on AAA corporate bonds and added it to the assumed inflation rate of 4.82 and arrived at an interest assumption of 6.47 percent [discount rate]. From these factors, he concluded a present value [at the date of trial] of $566,285 as the loss of future income for Mr. Thibodaux. On cross-examination, this expert calculated the present value of Thibodaux’s future income at minimum wage [using the same methodology] to be $173,684.

Testifying as to Thibodaux’s ability to work, Dr. Adatto explained Thibodaux would experience pain if he remained in one position for prolonged periods of time. He further advised that Thibodaux should not stoop or bend repetitively, lift heavy objects over 25 or 50 pounds, and sit or stand for long periods of time. He diagnosed Thibodaux as having a 20 percent to 25 percent spinal-type disability.

Dr. Adatto summarized the injury and condition as initially appearing as a classic “lumbar syndrome with persistent sciatica,” which requires four to six months to diagnosis as “ruptured disc.” He described Thibodaux’s condition at the time of trial as he was experiencing the “average good result” after his back surgery. Dr. Adat-to’s testimony concludes that Thibodaux is capable of working as long as he protects his back for the rest of his working life.

In addition, defendant’s vocational rehabilitation expert, Mr. Curtis Charrier, evaluated Thibodaux’s vocational capabilities by reference to the medical reports and testimony of Dr. Adatto, along with the trial testimony of various witnesses and Thibodaux’s own deposition. He felt Thi-bodaux was capable of sedentary work, light work, and moderate work activities. He further stated while this excludes farm work [which is classified as heavy work] he suggested Thibodaux was capable of doing sales-related jobs. He also listed the jobs available which Thibodaux is capable of performing. He finally noted that Thibo-daux does need rehabilitation counseling but felt Thibodaux’s depression could be overcome.

The only evidence contradicting Thi-bodaux’s capability of working is plaintiff’s testimony consisting of his own fears and apprehensions that he would be permanently disabled. Since plaintiff’s own medical expert opined that Thibodaux is capable of working, we find plaintiff has fallen short of proving by a preponderance of the evidence that plaintiff would suffer a permanent and total loss in earning capacity. Holmes v. Texaco, Inc., 422 So.2d 1302, 1305 (La.App. 5th Cir.1982). Consequently, we reduce that portion of the plaintiff’s award for future wage loss to reflect a credit for minimum wage employment.

We now address the final issue of whether the trial court abused its discretion in awarding $5000 for future medical expenses. Dr. Adatto testified that direct medical expenses in the future would range from $700 to $800. Importantly, Dr. Adat-to testified that a patient who has received a ruptured disc operation can expect to be a patient for at least 10 to 15 years. In Cushman v. Fireman’s Fund Insurance Company, 401 So.2d 477, 481 (La.App. 2d Cir.1981), the court recognized a plaintiff has a right to recover for the cost of future medical treatment and these damages should not be denied because it is impossible to establish the nature and extent of the treatment that will be required and the exact cost of it. This court finds, from the totality of Dr. Adatto’s testimony, the awarding of $5000 for future medical expenses does not demonstrate a clear abuse of discretion. Therefore, we see no abuse of discretion by the trial court.

For the reasons assigned, the judgment appealed from is amended to reflect the correction of the sum due for loss of future earning capacity of $566,285, subject to a reduction of $173,684; [$566,285 — $173,684 = $392,601] all other portions of the judgment are affirmed. All costs of this appeal are assessed one-half to appellant and one-half to appellee.

AFFIRMED IN PART AND AMENDED IN PART.


author: SCHOTT, Judge.

text:
    Edwin P. COMPASS, Guy Mitchell and Don Esposito, Individually and on Behalf of all Others Similarly Situated v. PAN AMERICAN LIFE INSURANCE COMPANY.
    No. CA 0639.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Rehearing Denied Jan. 25, 1984.
    Writ Denied March 16, 1984.

      Albert H. Hanemann, Jr., Gerald J. Talbot, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-appellant.
    Louis R. Koerner, Jr., Law Offices of Louis R. Koerner, Jr., New Orleans, for plaintiffs-appellees.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   SCHOTT, Judge.

Plaintiffs who are former agents of defendant, Pan American Life Insurance Company (PALIC), brought this suit for vested commissions, declaratory relief, and accounting in connection with contracts between them and PALIC. They sought to have their case certified as a class action representing all present and former agents of PALIC who were parties to successive contracts designated as “Agent’s Contract” and “Producing General Agent’s Contract” and whose employment has been terminated or may be terminated during the pend-ency of the proceedings. From a judgment of the trial court certifying the case as a class action PALIC has appealed contending that plaintiffs failed to prove that their case measures up to the statutory and jurisprudential guidelines required for a class action.

LSA C.C.P. Art. 591 provides the basic requirements for a class action:

“A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties and the character of the right sought to be enforced for or against the members of the class is:
(1) Common to all members of the class.”

Clearly this article places the initial burden on the plaintiffs seeking to maintain a class action to establish the elements of numbers in the class, impracticability of joinder of the class members, and commonality of factual and legal issues among members. In addition, plaintiffs must establish that their case meets the guidelines announced and developed by the Supreme Court in Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975), Williams v. State, 350 So.2d 131 (La.1977), and State ex rel. Guste v. General Motors Corp., 370 So.2d 477 (La.1979). These cases make it clear that a court is faced with the difficult task of considering a number of functional and pragmatic factors before deciding that the class action would be more useful than other procedures for the determination of the common-based right in the interest of all parties to the action and of the efficient operation of the judicial system. The cases also make it clear that a decision to certify a case as a class action may not be based on the class number alone or any other single factor but that the number must be considered in relation to and in addition to other factors. When all of these components or factors are weighed a class action may be maintained only if the scales tip in that direction.

From the little evidence presented at the trial of plaintiffs’ motion we are satisfied that there are only eighteen members of the class, including plaintiffs, whom they purport to represent. They alleged that the class “exceeds several hundred nationwide” but they failed to prove this allegation. PALIC showed that there are 46 present and former agents who have been parties to both contracts and who have operated within the State of Louisiana and 33 such outside of the state. Thus, the best plaintiffs could hope for would be a class of 79. However, of the 46 within the state only 18 have been terminated and of the other 33 only 7 have been terminated. We are unable to accept plaintiffs’ argument that the presently functioning and operating agents’ potential for being terminated makes them viable members of a class represented by the three plaintiffs who have been terminated. Plaintiffs offered nothing to support the notion that there will be any additional terminations as opposed to the assumption that those agents who have not been terminated are successful in their endeavors and contented with their position and that PALIC is satisfied with their performance. Plaintiffs’ suggestion that there will be additional terminations is not supported by any statistical data or expert prognostications but, instead, is based on sheer speculation. Thus, we consider the class as reduced at this point to the 25 who have been already terminated including plaintiffs.

Furthermore, we are unable to accept the proposition that the seven out of state terminated agents belong in the class. Under C.C.P. Art. 591 the common-based right must be common to all members of the class. Plaintiff did not offer proof as to where these supposed class members operated or reside, but PALIC established that it had agents in four states other than Louisiana. The rights of these agents under the contracts sued on would be determined by the laws of those states where the contracts were confected and performed. Since the same facts might produce different results for these agents they do not share common rights with the Louisiana agents. Thus, plaintiffs’ supposed class is reduced to but eighteen including plaintiffs.

A class action is available to plaintiffs only if the class “is so numerous as to make it impracticable” to join them as parties. C.C.P. Art. 591. Here again plaintiffs offered no evidence to show that it is impractical to join them. On the other hand, PALIC showed that almost every one of these terminated Louisiana agents resides in the metropolitan New Orleans area with the clear inference that they are easily susceptible to joinder as parties. The conclusion follows that plaintiffs failed to establish the threshold requirement of nu-merosity to maintain their case as a class action.

Rather than rest our decision on this point, we have also considered the guidelines discussed in Stevens, Williams, and Guste, supra, and have concluded that even if plaintiffs can be said to have established numerosity and even assuming that the character of the right is common to all class members, they are not entitled to maintain their case as a class action because “certain functional and pragmatic factors” do not weigh in favor of maintaining this class.

First, we do not perceive problems arising out of only fifteen possible other suits in Louisiana posing a significant risk of inconsistent adjudication and earlier separate determinations with a prejudicial effect upon subsequent separate litigation. If the other former agents are inclined to sue they would probably do so in the same forum as this suit is pending, some would be consolidated, and the same general result would ultimately follow from appeals to this court. This is particularly so because the dispute does not appear to be on facts but on law so that different results would not be forthcoming. Moreover, the class of eighteen is not so large that the courts would be burdened as in Stevens where the class was 100, Williams where there were 600, and Guste where there were 1467.

Second, plaintiffs failed to show and we cannot conclude from the record that the prosecution of separate actions poses a serious threat of substantially impeding the ability of the class members to protect their interests. In Williams the poverty and isolation of the prisoners in the class and the small value of the claims were stressed. In Guste the damages seemed to the court to be “relatively small” so that individual claims “in all likelihood” would not be pursued in individual litigation. And in Stevens plaintiff showed that the claims were approximately $1000 for each member of the class.

Third, there emerges from PALIC’s evidence the possibility that it will resist liability for reasons that may not be common to all members of the class. Apparently one or more of the terminations were for cause. If PALIC establishes, for example, that some agents were terminated for dishonesty or fraud or misconduct or unethical practices the class action could become confused and unwieldy. Unlike Guste, the case would not involve, under these circumstances, a common legal duty in every case.

Fourth, we are not persuaded that the class action is the superior procedural vehicle for the fair and efficient adjudication of this controversy. Since plaintiff has made no showing as to the amounts involved in this case we cannot conclude as in Guste the amount of interest of class members in controlling the prosecution of individual action. Guste placed emphasis on the fact that few if any individual suits had been filed as militating in favor of the class action, but we are not persuaded by the same rationale here. ' Perhaps Guste involved facts difficult to prove which discouraged litigation or perhaps the onset of prescription made it unlikely that additional individual claims would be pursued. Here we have a case involving the interpretation of contracts which would not require a complicated trial such as to discourage individual suits and since the prescriptive period is a long one we cannot conclude that there won’t be a number of additional suits in the future. The Guste rule of thumb, “in general, a class action is more useful when only a limited number of additional suits has been filed,” does not fit this case. Finally, Guste’s concern with the desirability of concentrating the litigation in one forum is of no moment in this case. Since most of the plaintiffs are in the New Orleans area and PALIC’s home office is in New Orleans most of the suits would be in one forum.

The foregoing analysis is parallel to the analysis in Guste and leads to the conclusion that this case was erroneously certified as a class action by the trial court. Accordingly, the judgment appealed from is reversed, the motion to certify plaintiffs’ case as a class action is denied, and this case is remanded to the trial court to proceed as an individual action by each of the three plaintiffs.

REVERSED AND REMANDED.