text:
    The SAVINGS BANK OF BALTIMORE, Plaintiff-Appellee, v. VENTURE 73, et al., Defendants-Appellants.
    No. 83-742.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.
    Writ Denied Oct. 26, 1984.
    Michael H. Davis, Alexandria, for defendants-appellants.
    Bolen & Erwin, Ltd., John Honeycutt, Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for plaintiff-appel-lee.
    Gary & Field, Russell L. Dornier and Thomas R. Elkins, Baton Rouge, Trimble, Randow, Percy Wilson & Foote, Michael Percy and Lon Wilson, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   DOMENGEAUX, Judge.

Appellant, the liquidator appointed to represent Quinn-L Corporation 1974 (one of the defendants herein), has appealed devol-utively from a judgment denying its petition for an injunction to prevent a seizure and sale under executory process. Plaintiff-appellee, The Savings Bank of Baltimore, has moved to dismiss the appeal taken by the liquidator.

FACTS

This lawsuit arises out of a series of transactions between the plaintiff-appellee (The Savings Bank of Baltimore) and the defendants (Quinn-L Corporation 1974 and Venture 73 — two Louisiana partnerships in commendam).

The Savings Bank of Baltimore filed a petition against the two defendants for ex-ecutory process based upon a promissory note dated August 31, 1977, for the principal sum of $1,650,000.00 which The Savings Bank of Baltimore loaned the defendants. The Savings Bank of Baltimore was holder of the note executed by defendants. The note provided for interest and attorney’s fees and was secured by an Act of Mortgage on two separate pieces of property. Defendant Quinn-L Corporation 1974 owned one tract and defendant Venture 73 owned the adjoining tract of land. This mortgage was recorded in the Rapides Parish Mortgage Office on August 31, 1977. The Savings Bank of Baltimore’s petition for executory process was granted on December 23, 1982, and the properties owned by the defendants were seized. During the pendency of these proceedings, in a separate lawsuit, Quinn-L Corporation 1974 was declared dissolved (due to the removal of its two general partners), ordered liquidated, and a liquidator was appointed. See Lovell v. Hallelujah, Inc., 451 So.2d 116 (La.App. 3rd Cir.1984).

The liquidator representing Quinn-L Corporation 1974 acted to prevent the seizure and sale of the mortgaged property at issue by obtaining a temporary restraining order on January 10, 1983, and subsequently filing a petition for a preliminary injunction and permanent injunction.

A hearing on the matter was held and the trial court rendered judgment on May 25, 1983, which dissolved the temporary restraining order, denied the preliminary injunction, and dismissed the liquidator’s petition at its costs. The trial court stated in its written reasons for judgment that it refused to enjoin the executory process because the partnership in commendam, Quinn-L Corporation 1974, had been dissolved by the removal of both general partners. The Act of Mortgage provided that such action was tantamount to default and therefore The Savings Bank of Baltimore was entitled to the foreclosure sale. Formal judgment was signed on May 26, 1983. The liquidator devolutively appealed the adverse judgment on June 7, 1983.

Upon granting the appeal, the trial court stayed further proceedings in the matter pending appeal. Pursuant to application for a supervisory writ filed by The Savings Bank of Baltimore, this Court ordered the trial court’s stay order vacated and set aside. See Savings Bank of Baltimore v. Venture 73, (August 23, 1983, our writ No. 83-770).

ON MOTION TO DISMISS APPEAL

Prior to our deciding this case, we became aware that the Sheriff’s sale which defendant liquidator sought to enjoin had already taken place. A certified copy of the Sheriff’s procesverbal and deed apprises us that the property was offered for sale on January 11, 1984, pursuant to the order of seizure and sale under the executory proceeding, and sold to the highest bidder for $2,800,000.00. See United Teachers of New Orleans v. Orleans Parish School Board, 355 So.2d 899, n. 2 (La.1978); Giacona v. Conti Commodity Services, Inc., 423 So.2d 741 (La.App. 4th Cir.1982), writ denied, 427 So.2d 1211 (La.1983). Neither plaintiff nor defendant disputes the occurrence of the sale.

The only relief requested in these proceedings was an injunction to arrest the seizure and sale of the mortgaged property. Given the posture of this matter, the issue is thus moot. Bank of Southwest Louisiana v. Thibodeaux, 441 So.2d 11 (La.App. 3rd Cir.1983); Aucoin v. Evangeline Parish Police Jury, 338 So.2d 789 (La.App. 3rd Cir.1976); Rourke v. Coursey, 334 So.2d 480 (La.App. 3rd Cir.1976).

It is the function of appellate courts to render judgments or decrees that can be made effective and not to give opinions on moot questions or abstract propositions from which no practical result can be derived. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405 (La.1980); United Teachers of New Orleans v. Orleans Parish School Board, 355 So.2d 899 (La.1978); Chavers v. Chavers, 411 So.2d 490 (La.App. 1st Cir.1982); Upper Audubon Association v. Audubon Park Commission, 329 So.2d 209 (La.App. 4th Cir.1976), writ denied, 333 So.2d 240 (La.1976); La.C.C.P. Art. 2164.

In the interest of judicial economy this Court will not review a case when only injunctive relief is sought and the need for that relief has ceased to be a justiciable issue. La.C.C.P. Art. 1871. Any decision made by us now would be advisory. Taylor v. Louisiana Commission on Governmental Ethics, 340 So.2d 1021 (La.App. 1st Cir.1976).

Clearly, the subsequent sale of the property following the judgment of the trial court renders the issues presented by the appeal merely hypothetical and no longer viable. Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La.App. 4th Cir.1970). Therefore, we must hold that all issues presented on this appeal are moot, and, accordingly the appeal must be dismissed.

DECREE

For the above and foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    Christopher J. GALLAND, Plaintiff-Appellee, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA, et al., Defendant-Appellant.
    No. 83-746.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Franklin, Moore & Walsh, Charles A. O’Brien, III, Baton Rouge, for defendant-appellant.
    Führer & Flournoy, Leonard Führer and Steven W. Harris, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

Defendant, National Union Fire Insurance Company (National Union), appeals from a default judgment ordering it to pay $1,298.50 for court costs incurred in a previous suit by the plaintiff against National Union.

The parties had reached a settlement in the previous suit by plaintiff in which National Union agreed to pay court costs including expert witness fees set at $200 for each of three doctors’ depositions. After efforts to collect the costs were unsuccessful, plaintiff filed the present suit on April 5, 1983. A judgment of default was entered on April 26, 1983, and the default judgment was confirmed on May 2, 1983.

National Union appeals solely on the basis that plaintiff did not prove the amount of costs owed by competent evidence. Plaintiff answered the- appeal asking for damages for the filing of a frivolous appeal. We affirm the judgment of the trial court and award damages to the plaintiff for the filing of a frivolous appeal.

DEFAULT JUDGMENT

On February 2, 1983, the plaintiff and National Union announced in open court that a settlement had been made in plaintiff’s suit against National Union. At the hearing to confirm the default judgment in this suit, plaintiff-appellee introduced in evidence a transcript of the hearing in which the parties announced to the court that the settlement had been reached. The only other evidence presented at the hearing to confirm the default was the testimony of Mr. Führer, counsel for plaintiff in the previous suit. Mr. Führer testified that he made demand for the costs from counsel for National Union. He testified further, “I itemized twelve hundred ninety-eight dollars and fifty cents, which included the six hundred dollars in expert witness fees.” Based on this evidence, the default judgment was confirmed.

On appeal, National Union argues that in order to make' out a prima facie case under LSA-C.C.P. art. 1702, the plaintiff is required by the “best evidence” rule to introduce either written or oral evidence from the clerk of court. We disagree. In order to make out his prima facie case, the plaintiff must only present competent evidence. Holbrook v. Palermo, 352 So.2d 419 (La.App. 3rd Cir.1977). The trial court apparently found Mr. Fuhrer’s testimony concerning the court costs to be credible and that finding will not be disturbed unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In Brown v. Tinsley, 433 So.2d 305 (La.App.1st Cir.1983), the court upheld a default judgment in favor of the plaintiff who sued for breach of contract for the sale of timber. The court found that the plaintiff’s testimony concerning the discrepancy in the amount of land involved was sufficient to confirm the default judgment without corroborating documentary evidence. In the present case we find that the testimony regarding the court costs is sufficient without corroborating documentary evidence to prove the amount owed by National Union.

A party who seeks to have a default judgment set aside must allege and prove that he had good reasons for his nonappearance and failure to timely plead. Succession of Rock v. Allstate Life Insurance Company, 340 So.2d 1325 (La.1976). National Union has offered no excuse for its failure to appear and defend the suit and does not deny its agreement to pay the court costs in plaintiffs original suit. On appeal, National Union points out that it was allowed no credit for any amounts that it paid and which may or may not have been forwarded by the clerk of court to the plaintiff. This claim of credit or payment is an affirmative defense which must be specially pleaded and proved by the defendant. Fontenot v. LaFleur, 281 So.2d 868 (La.App.3rd Cir.1973), writ not considered 284 So.2d 336 (La.1973). Having failed to answer or defend the suit, National Union may not now defeat the default judgment against it by asserting a defense on appeal.

FRIVOLOUS APPEAL

Plaintiff timely answered National Union’s appeal seeking damages for the prosecution of a frivolous appeal under LSA-C.C.P. art. 2164 in the amount of $2,000. Even though an appeal lacks serious merit, damages for frivolous appeal will not be awarded unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he advocates. Mauboules v. Broussard Rice Mills, 379 So.2d 1196 (La.App.3rd Cir.1980), writ denied 381 So.2d 1234 (La.1980). We find that the present appeal was taken solely for delay, and accordingly, award damages.

We find the facts in the present case similar to those before the court in Dwyer Lumber Company v. Murphy Lumber & Supply Company, 116 So.2d 64 (La.App.1st Cir.1959). The appellant in that case disputed only a portion of the judgment amount which was rendered against it, yet appealed suspensively from the entire judgment, thus suspending its obligation to pay the sum undeniably due. Similarly, National Union admits its liability for the court costs in plaintiffs original suit; its appeal is solely based on the alleged absence of evidence as to the amount of court costs assessed by the clerk of court. That amount was adequately proven by plaintiff at the hearing to confirm the default, and as previously stated, National Union has offered no excuse for its failure to appear and defend the suit.

An award for damages for the prosecution of a frivolous appeal may consist of attorney’s fees to the appellee for defending his position on appeal. Samford v. Samford, 297 So.2d 465 (La.App.2d Cir.1974). In this case, we find that plaintiff is entitled to damages in the amount of $750 for attorney’s fees incurred in defending his position on appeal. See Coleman Oldsmobile, Inc. v. Cobb, 366 So.2d 994 (La.App.1st Cir.1978).

CONCLUSION

For the above reasons, the judgment of the trial court in favor of plaintiff-appellee is affirmed.

It is further ordered that there be judgment in favor of plaintiff-appellee, Christopher Galland, and against defendant-appellant, National Union, in the amount of $750 as damages for the prosecution of a frivolous appeal. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED, JUDGMENT INCREASED.


author: FORET, Judge.

text:
    Warren Joseph LANDRY, and Rodell Joseph Landry, Plaintiffs-Appellees, v. Charles BEAUGH, Jr., Defendant-Appellant.
    No. 83-756.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 12, 1984.
    Cecil R. Sanner, Lake Charles, for defendant-appellant.
    J. Douglas Handley, Lake Charles, for plaintiffs-appellees.
    Before DOMENGEAUX, C.J., and FOR-ET and STOKER, JJ.
   FORET, Judge.

Plaintiffs, Warren Joseph Landry and his wife, Rodell Landry, filed this suit seeking to redeem.property which was sold at a tax sale to the defendant, Charles Beaugh, Jr. In addition, they sought to have the tax sale declared a nullity on the grounds that they were not given sufficient notice of tax delinquency. From a judgment in favor of the plaintiffs, defendant has taken this appeal.

On appeal, two questions are presented for review:

(1) Whether the trial court erred in its finding that the plaintiffs did not receive sufficient notice of tax delinquency; and
(2) Whether the three-year prescriptive period for redeeming property sold at a tax sale is suspended until the tax debtor is dispossessed.

FACTS

By deed dated August 7, 1975, plaintiffs purchased certain immovable property located in Lake Charles, Louisiana. The couple has been in continuous possession since that time. Unfortunately, plaintiffs failed to pay taxes on the property for 1977. They did manage to obtain, however, a delayed homestead exemption which was filed on April 10, 1978. Since the homestead exemption was not sufficient to cover all the taxes owed, plaintiffs were still delinquent by some $1600. Subsequently, the property was sold at a tax sale to defendant by tax deed dated June 20, 1978.

On August 16, 1981, more than three years, but less than five years after the recordation of defendant’s tax deed, plaintiffs filed this suit. The trial court rendered judgment in favor of the plaintiffs on the ground that the prescriptive period for redeeming the property had not yet run and that the tax sale was a nullity on the grounds of inadequate notice of delinquency.

NOTICE OP DELINQUENT TAXES

Defendant contends that the trial court erred in holding that the plaintiffs did not receive sufficient notice of tax delinquency.

Title 47 of the Louisiana Revised Statutes sets forth the procedure for giving notice of taxes as well as the requirements for a tax sale. LSA-R.S. 47:2101 requires the tax collector to send a tax notice stating the amount of taxes that are presently due by the owner of the property. When taxes become delinquent, LSA-R.S. 47:2180 and Art. VII, § 25(A) of La. Const.1974 provide that the giving of notice of delinquency is mandatory before a tax sale can be valid.

LSA-R.S. 47:2180 also provides in paragraph B that the tax collector must file a proces verbal in the clerk of court’s office setting forth the names of the notified delinquents, their addresses, descriptions of the property, amount of taxes due, and how service of notice was made. It is undisputed that in the case at bar this proces verbal was never filed. Where a proces verbal is not filed, the burden of proof is on the tax purchaser to show by clear and convincing proof that the necessary notice was conveyed to the tax debtor. Succession of Windes v. Yerger, 234 So.2d 224 (La.App. 2 Cir.1970).

The record shows that the only evidence presented by the defendant to show that adequate notice was given was a certified letter sent to Mr. Landry which was marked “No Response and Notified 4/22/78”. There was no indication as to the identity of the postman or whether he ever attempted delivery a second or third time. This letter was returned to the tax collector s office.

Where the mailing of a tax notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, the tax collector is required to take additional reasonable steps to notify the tax debtor, and the failure of the tax collector to perform this obligation renders the tax sale null and void. Childress v. Johnson, 387 So.2d 1217 (La.App. 1 Cir.1980), writ denied, 393 So.2d 744 (La.1980).

We find no evidence which indicates that the tax collector’s office took any additional steps to notify plaintiffs after the certified letter was returned to them by the post office. Furthermore, we can find no evidence which would indicate that the failure to receive the notice was due to plaintiffs’ own fault. Securities Mortgage Co., Inc. v. Triplett, 374 So.2d 1226 (La.1979).

We conclude, as did the trial court, that the defendant did not carry his burden of proving that proper notice of tax delinquency had ever been given to the plaintiffs.

REDEMPTION

The trial court also found that the three-year prescriptive period for redeeming the subject property had not yet run against the plaintiffs. There is jurisprudence to the effect that physical possession of the taxed property by the tax debtor interrupts the five-year prescriptive period for annulling a tax sale, but does not interrupt the three-year prescriptive period for redemption. Securities Mortgage Co., Inc. v. Triplett, supra. The lower court, in the case at bar, held that LSA-R.S. 47:2221, as amended by § 1 of Act 557 of 1978, effectively overruled this jurisprudential rule so that possession would also interrupt the prescriptive period for redemption. Thus, the trial court found that because the plaintiffs were in possession of the property, the three-year prescriptive period for redemption had not yet elapsed. Because we find that the tax sale was a nullity, we need not reach this second issue concerning redemption rights.

For the aforementioned reasons, the judgment of the trial court annulling and setting aside the tax sale upon payment of all back taxes, interest, and penalties is affirmed at appellant’s costs.

AFFIRMED.

      . The prescriptive period for redemption of the taxed property is three years from the date of recordation of the sale. Art. VII, § 25(B), La. Const. 1974. The prescriptive period for annulling the sale is five years from date of recordation. Art. VII, § 25(C), La. Const. 1974.

      . LSA-R.S. 47:2180 provides:
      "§ 2180. Immovable property, notice of delinquency
      A. On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
      B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. After the tax collector shall have completed the service by the notices ■ herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of this notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.”

      . This section provides:
      “§ 2221. Right to redeem
      Property sold at a tax sale shall be redeemable in accordance with Section 25 of Article VII of the constitution of 1974. Nothing in this Section shall be construed so as to effect in any way, the principle that as to a tax debtor-owner in possession, prescription does not begin against him and in favor of the tax title purchaser until such tax debtor-owner has been first dispossessed.
      Amended by Acts 1978, No. 557, § 1.
      1978 Amendment: Substituted “Section 25 of Article VII of the constitution of 1974” for "Section 11 of Article X of the Louisiana Constitution,” and added the provision concerning prescription against tax debtor-owners."

      . We note that in Securities Mortgage Co., Inc. v. Triplett, supra, the Court stated at page 1231, in footnote 4:
      "... Whatever effect the amendment may have on the constitutional and statutory scheme in the future concerning redemption, annulment of tax sales, and quieting tax titles, it does not affect the present case. All of the facts of this case arose prior to the amendment.”


author: LABORDE, Judge.

text:
    Marlene King LeBLANC, Plaintiff-Appellee, v. Jack Roland LeBLANC, Defendant-Appellant.
    No. 83-763.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Jack Roland LeBlanc, in pro. per.
    Marlene King LeBlanc, pro se.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

This is an action to reduce child support payments. Jack Roland LeBlanc, convoked a rule nisi commanding his former wife, Marlene King LeBlanc, to show cause why the monthly child support payments previously awarded in a divorce judgment should not be reduced. The trial court reduced the amount of the monthly payments from $500 to $400. Jack appeals, contending that further reduction is warranted. We affirm.

PACTS

Jack Roland LeBlanc and Marlene King LeBlanc were married on June 15, 1957 and five (5) children were born of the marriage. Marlene obtained a judgment of separation on March 23, 1982 awarding her custody of the two remaining minors, Donna, age 12, and Brenda, age 10. She was awarded monthly child support payments of $650, which were later reduced to $500. A divorce judgment was rendered on November 16, 1982, continuing Marlene’s custody of the minors and child support payments of $500 per month.

On March 8, 1983, Jack filed a rule nisi for a decrease in child support alleging a change in circumstances, in that he experienced a decrease in income. The trial court held that although the needs of the children had not decreased, Jack’s income had decreased. The court accordingly reduced the child support payments from $500 to $400 per month. Jack appeals from this reduction alleging that the reduced payments are still excessive. Marlene contends on appeal that the award of $500 per month should be reinstated.

ISSUE

The dispositive issue on appeal is whether the trial court abused its discretion in reducing the monthly child support payments by $100.

APPLICABLE LAW

LSA-C.C. article 227 provides that parents have a mutual obligation of support, maintenance and education of their children. The degree of support is determined by the needs of the children, as well as the circumstances of those who are obligated to pay it. LSA-C.C. arts. 230 and 231; Alexander v. Alexander, 417 So.2d 92 (La.App. 3rd Cir.1982). The amount which a parent is ordered to pay in fulfillment of his obligation to support his child must be determined in light of the totality of the circumstances. Martin v. Brasseaux, 422 So.2d 548 (La.App. 3rd Cir.1982).

The trial court had originally ordered Jack to pay $650 per month pending separation. The amount was reduced to $500 following Jack’s termination from employment. Jack subsequently obtained employment on a commission basis with a net average monthly income of $1,120. He now contends that a severe recession in the summer of 1983 caused his salary to be reduced to a net average of only $981.15 per month. The trial court accordingly reduced the child support payments to $400 per month based on this change in circumstances. Jack argues that further reduction is warranted.

Marlene is now remarried and relies upon the present community to provide most of the support for the two minors. In her affidavit of monthly expenses, Marlene shows that $1,306.80 per month is currently expended for support of the minors. This places the major burden of support on Marlene and her second husband. Further reduction of Jack’s monthly payments of $400 would be inconsistent with the well established rule that parents must provide mutual support, maintenance and education for their children. Additionally, we find that Jack’s present salary is adequate to pay $400 per month in support of his children.

Accordingly, we hold that the trial judge properly reduced Jack’s monthly support payments from $500 to $400 in light of his decreased income. However, we find no abuse of the trial court’s discretion in reducing the amount by only $100 since the needs of the children have not changed. The trial court is granted much discretion and its award regarding child support shall not be disturbed unless there is a clear abuse of discretion. Hord v. Hord, 407 So.2d 1314 (La.App. 3rd Cir.1981); Youngblood v. Youngblood, 329 So.2d 896 (La.App. 2nd Cir.1976). We find no abuse of discretion by the trial court.

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

AFFIRMED.


text:
    Raymond ROCHON, Plaintiff-Appellant, v. CONSOLIDATED CONSTRUCTION COMPANY, et al., Defendants-Appellees.
    No. 83-766.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.

      Raymond Rochon, in pro. per.
    Allen, Gooch & Bourgeois, Sera H. Russell, III, Lafayette, for defendants-appel-lees.
    Before DOMENGEAUX, C.J., and FOR-ET and STOKER, JJ.
   FORET, Judge.

Raymond Rochon filed this worker’s compensation suit against his former employer, Consolidated Construction Company, and its insurer, Automobile Owners Insurance Company. From a judgment dismissing his suit without prejudice, plaintiff appeals. At issue on appeal is the propriety of the trial court’s action in dismissing plaintiff’s suit.

Raymond Rochon, through the services of an attorney, filed suit seeking worker's compensation benefits for an injury which allegedly arose out of an on-the-job accident which occurred on April 17, 1979. Before the suit came to trial, however, plaintiff was convicted of several criminal offenses and was subsequently incarcerated in the state penitentiary at Angola, Louisiana. He remains in Angola to this date.

Plaintiff’s counsel withdrew from the civil suit on June 11, 1981. Trial was originally set for March 21, 1983, but the matter was continued by the plaintiff so that he could seek new legal representation. Subsequently, the case was refixed with the trial date being set for July 5, 1983. On the day of the trial, no one was present to represent the plaintiff. Thus, pursuant to LSA-C.C.P. Article 1672, the trial court dismissed plaintiff’s case without prejudice. Plaintiff now appeals, alleging that the trial court erred in dismissing his case without prejudice because the court should have had him subpoenaed so that he could appear in court on his own behalf. We disagree.

LSA-C.C.P. Article 1351 provides:

“Art. 1351. Issuance; form
The clerk or judge of the court wherein the action is pending, at the request of a party, shall issue subpoenas for the attendance of witnesses at hearings or trials. A subpoena shall issue under the seal of the court. It shall state the name of the court, the title of the action, and shall command the attendance of the witness at a time and place specified, until discharged.”

(Emphasis added.)

The language is clear that a request for a subpoena must be made by a party to the suit. The record shows no evidence that this request was made. We know of no authority, either jurisprudential or statutory, which requires a judge, on his initiative, to subpoena parties to appear in court.

We note that because plaintiff has been unable to obtain counsel since his first attorney’s withdrawal, he has had to prosecute this claim in proper person. Nevertheless, although we may not always hold laymen to the same standards of skill and judgment that is required of an attorney, when a layman chooses to appear in pro-pria persona, he assumes all responsibilities for his own inadequacy and lack of knowledge of procedural and substantive law. Alexander v. Town of Jeanerette, 371 So.2d 1245 (La.App. 3 Cir.1979).

LSA-C.C.P. Article 1672, as amended in 1983 by Act No. 534, § 9, provides in part:

“Art. 1672. Involuntary dismissal
A. A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

LSA-C.C.P. Article 1673 provides that:

“Art. 1673. Effect of dismissal with or without prejudice
A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.”

We conclude that the trial court did not abuse its discretion in dismissing plaintiffs claim without prejudice.

For the above and foregoing reasons, the judgment of the trial court dismissing plaintiffs claim without prejudice is hereby affirmed.

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

AFFIRMED.


author: KNOLL, Judge.

text:
    Danny Wayne LUMPKIN, Sr. and Winston Elaine Lumpkin, Plaintiffs-Appellees, v. STEVEN’S HOMES OF LEESVILLE, INC. and Mays Industries, Inc., Defendants-Appellants.
    No. 83-769.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Watson, Murchison, Crews & Arthur, William P. Crews, Jr. and Steve Crews, Natchitoches, for defendant-appellant-ap-pellee.
    Gist, Methvin, Hughes & Munsterman, for appellant.
    David A. Hughes, Alexandria, for defendant-appellee-appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

Danny W. Lumpkin, Sr. and his wife, Winston Elaine Lumpkin, purchased a new 1981 River Bend mobile home from Steven’s Homes of Leesville, Inc. on December 17, 1980. Mays Industries, Inc. was the manufacturer and Steven’s was the seller who delivered the mobile home from Lees-ville to the Lumpkin property in Natchi-toches Parish. One week after the home was set-up the Lumpkins moved into the mobile home with their three children.

At the time of sale the mobile home had two torn exterior metal panels and leak spots on the ceiling which the dealer agreed to fix. The two exterior metal panels were replaced and caulking was applied to the roof. After moving into the mobile home, plaintiffs discovered: two cracked windows; scratched inside paneling; a water leak near the dishwasher; buckled flooring in the kitchen and dining room; interior doors which would not shut; roof leaks; and an inability to level the mobile home.

Steven’s sent Milton Knickerbocker to replace the two metal exterior panels and to check the dishwasher for leaks. He found no leak at the dishwasher. He did, however, find the bedroom door out of plumb and he was unable to level the mobile home.

Mays sent a work crew on May 16, 1981 to repair the mobile home. They replaced the kitchen subfloor which had gotten wet, repaired the dishwasher, and overlaid new paneling in some parts of the mobile home.

Steven’s then sent a repairman to plaintiffs’ home to repair a leak which developed beneath the kitchen sink. The leak was fixed but a hole had to be cut out under the floor to allow the insulation to dry. As of trial the hole had not been closed.

Plaintiffs initiated this suit on July 16, 1981 against the seller, Steven’s Homes of Leesville, Inc. and the manufacturer, Mays Industries, Inc., seeking to have the sale set aside, a money judgment of $41,275.46, and attorney fees of $5,500. Each defendant brought a third party demand against the other.

The trial court rendered judgment in plaintiffs’ favor rescinding the sale and casting the defendants in solido for $41,-275.46. The defendant, Mays Industries, Inc., was cast with attorney fees to the plaintiffs’ in the sum of $2,500.

Mays’ third party demand against Steven’s was dismissed. Judgment was rendered in favor of Steven’s on its third party demand against Mays for the amount which Steven’s was cast in judgment on the main demand less the sum of $75 for repairing the cracked windows.

The defendants have appealed specifying that the trial court erred in awarding a full rescission of the sale. Additionally, Mays has alleged that the trial court erred:

(1) In finding that the defects were caused by the manufacturer; and
(2) In finding that the defects were not caused by the set-up procedure of Steven’s.

Further, Steven’s alleges that the trial court erred in not awarding its demand for attorney fees against Mays.

RESCISSION OF-SALE

Defendants contend that the trial court should have granted plaintiffs a reduction in the sale price rather than a complete rescission of the sale and a return of the full purchase price.

Relevant to this issue are the following articles of the Louisiana Civil Code:

“Art. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
“Art. 254-1. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”
Ss * * # ⅜ ⅛
“Art. 2543. The purchaser who has contented himself with demanding a reduction of the price, can not after-wards maintain the redhibitory action. But in a redhibitory suit, the judge may decree merely a reduction of the price.

Plaintiffs instituted an action only in red-hibition and did not plead alternatively for a reduction of the sales price. Nonetheless, under LSA-C.C. Art. 2543 the trial judge had the authority to limit plaintiffs’ recovery to a reduction in price if the evidence had warranted the lesser remedy. Defendants argue that the defects in plaintiffs’ mobile home are not serious enough to render the mobile home “either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” LSA-C.C. Art. 2520. Defendant Mays cites two cases, Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886 (La.App. 2nd Cir.1980) and Ingersoll v. Star Chrysler, Inc., 234 So.2d 85 (La.App. 4th Cir.1970), writ denied 256 La. 366, 236 So.2d 499 (1970), for the proposition that if the evidence establishes only a partial failure of consideration the trial court has the power and the duty to decree a reduction of the purchase price.

The cases cited by Mays involve a boat and an automobile. We conclude that Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir.1975), writ denied 313 So.2d 239 (La.1975) is more applicable to the case at hand. As in Gonzales the purchasers of this mobile home discovered serious defects in the home shortly after taking occupancy, including water leakage. In both cases water leakage continued even after several attempts had been made to correct it.

This court stated in Gonzales:

“The testimony of the other witnesses called by the plaintiff and the inspection of the mobile home by the judge revealed that there were leaks around certain windows in the mobile home. Careful evaluation of all the testimony and his personal inspection of the mobile home resulted in the trial judge finding that there was sufficient leakage to render the mobile home so inconvenient that it must be presumed that the plaintiff would not have purchased it had he known of these defects. There was evidence before the trial judge which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for his findings and conclusions. There has been no showing of manifest error; therefore, we will not disturb his findings. See Canter v. Koehring, 283 So.2d 716 (La.1973).

See also: Musemeche v. G & J Mobile Home Ser. & Supplies, 425 So.2d 791 (La.App. 3rd Cir.1982); Dougherty v. Petrere, 240 La. 287, 123 So.2d 60 (1960).

In the case sub judice the court found the defects to be neither minor nor easily reparable. The trial judge had evidence before it to justify these conclusions, including testimony that the basic box frame of the mobile home had been constructed out of square. Our review of the record does not indicate that these conclusions are clearly wrong. Accordingly, we will not disturb the trial court’s judgment on appeal. Canter, supra; and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

CAUSES OF THE DEFECT

Defendant Mays contends that if there are redhibitory defects in plaintiffs’ mobile home, they were the result of the set-up procedure of the defendant, Steven’s.

The evidence shows that after the sale to plaintiffs, Steven’s transported the mobile home to Natchitoches Parish. During the time that Steven’s was attempting to locate the home on plaintiffs’ lot, the mobile home and the trailer truck became mired in the mud. To extricate the mobile home and the truck, a chain was attached to a log skidder and hooked to the spring shackles of the mobile home. When this procedure failed Steven’s lowered the tongue jack of the mobile home on to a piece of plywood and attempted to move the mobile home by pushing the tongue with the skidder. The trial court evaluated the testimony of all the witnesses, including four experts involved in the construction and repair of mobile homes, and determined that the defects were not caused by the set-up procedure, but existed as a result of the manufacturing process. There was evidence before the trial court which furnished a reasonable factual basis for its findings and conclusions. Mays has not shown that the trial court was manifestly erroneous. Therefore we will not disturb its judgment in favor of Steven’s and against Mays on the third party demand for the amount which Steven’s was cast in judgment on the main demand. LSA-C.C. Art. 2531; Canter, supra; Arceneaux, supra.

ATTORNEY FEES

The final specification of error involves the refusal of the trial judge to allow Steven’s attorney fees against Mays.

The jurisprudence provides that the manufacturer is presumed to know of the defects of the thing which he manufacturers and is therefore in bad faith. Rey v. Cuccia, 298 So.2d 840 (La.1974); Riche v. Krestview Mobile Homes Inc., 375 So.2d 133 (La.App. 3rd Cir.1979); Gonzales, supra. Steven’s seeks reasonable attorney fees from Mays which we feel is justified. Riche, supra; Gonzales, supra. We find the record of this case supports an award of $2,000 attorney fees.

For the foregoing reasons, the judgment of the trial court is affirmed in all respects except as to the denial of the request by Steven’s for attorney fees. We reverse only to assess attorney fees in the amount of $2,000 in favor of Steven’s Homes of Leesville, Inc. and against Mays Industries, Inc.

Costs are cast equally between the defendants, Steven’s Homes of Leesville, Inc. and Mays Industries, Inc.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.


author: GUIDRY, Judge.

text:
    Damon “Jack” JACKSON, Plaintiff-Appellant, v. WAL MART PROPERTIES, INC., et al., Defendants-Appellees.
    No. 83-772.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      See also, La.App., 443 So.2d. 3.

      Marcantel & Marcantel, David Emile Marcantel, Jennings, for plaintiff-appellant.
    Donald Jory, Jennings, for defendants-appellees.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

The plaintiff, Damon “Jack” Jackson, brought this suit to recover money owed him in connection with two construction projects. The two projects were for the construction of Wal-Mart stores, one in Jennings, in Jefferson Davis Parish, and the other in Galliano, in Lafourche Parish. The plaintiff further sought recognition of a laborer’s and materialman’s privilege against each job site. Made defendants were the owner, Wal-Mart Properties, Inc., the general contractor, B.G. Coney Company, and a sub-contractor, Richard Barras d/b/a Barco Construction, Inc. Barras was dismissed without prejudice prior to the trial of the matter.

The trial court rendered judgment in favor of the plaintiff in the amount of $2,349.00, representing wages owed the plaintiff in connection with the construction of the Galliano Wal-Mart store. The judgment further awarded the plaintiff $17.00 for recordation costs, and recognized the lien filed by the plaintiff in Lafourche Parish. All other amounts sought by the plaintiff were denied, and the lien filed in Jefferson Davis Parish was ordered can-celled.

The plaintiff appeals, alleging that the trial court erred in (1) denying the various other amounts claimed by the plaintiff; (2) cancelling the lien filed in Jefferson Davis Parish; and, (3) refusing to allow the plaintiff to introduce evidence of the correct legal description of the Galliano property.

The plaintiff was employed in a supervisory position by Richard Barras d/b/a Bar-co Construction, Inc. At the time he was hired, the plaintiff was unaware that Barco Construction, Inc. was not in fact incorporated, but was simply being used as a trade name by Richard Barras. Jackson worked on both Wal-Mart construction projects. During the course of the construction, he incurred various expenses on behalf of Bar-ras. He now seeks to recover these amounts from the owner arid the general contractor, and to secure his claim against the owner by a privilege on the immova-bles, all pursuant to La.R.S. 9:4802, which provides in pertinent part:

“A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a subcontractor, for the price of work performed at the site of the immovable.
(3) Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the site of the immovable and leased to the contractor or a subcontractor by written contract.
B. The claims against the owner shall be secured by a privilege on the immovable on which the work is performed.”

The plaintiff seeks to recover from the defendants reimbursement for the following expenses, all of which were denied by the trial court:

(1) $168.00 paid by the plaintiff for rental of a concrete saw used on the Galliano job site. The plaintiff testified that B.G. Coney’s job superintendent, Louis Simpson, told him that B.G. Coney would not be able to open an account with the rental company for three or four days, and that the saw was needed on the job the following day. Simpson asked the plaintiff to rent the saw and to pay for the first week’s rental, assuring him that he would be reimbursed by B.G. Coney. Plaintiff fulfilled this request, expending $168.00 of his personal funds. Plaintiff testified that he has not been reimbursed.

(2) $156.08 in expenses incurred by the plaintiff in connection with the Galliano project. One of the plaintiff’s job duties was to pay for miscellaneous expenses, after which he would be reimbursed by Bar-ras. At the end of each week, Jackson would send the receipts to Barras, in turn drawing a check on the Barco account, payable to himself, for reimbursement. One such check, in the amount of $156.08, was returned for lack of sufficient funds. Plaintiff has never been reimbursed for these expenses.

(3)$3,030.00 loaned by Jackson to Bar-ras. On January 14, 1983, Barras telephoned Jackson and told him that the weekly draw check from B.G. Coney had not arrived, and that as a result, Barras had no money to pay laborers and subcontractors at the Jennings job site, who were due to be paid that afternoon. Barras asked Jackson to loan him the necessary funds. Later the same day, Jackson borrowed $3,030.00 from Jeff Davis Bank in Jennings and deposited the funds into the Barco Construction account. The money was then used to pay laborers and subcontractors on the Jennings Wal-Mart job site. Jackson has not been reimbursed.

With regard to the $168.00 paid by the plaintiff as rental for the concrete saw, we find no error in the trial court’s conclusion that this expense is not recoverable under La.R.S. 9:4802. The plaintiff might be considered a lessor pursuant to La.R.S. 9:4802(A)(4), inasmuch as he, having rented the saw in his own name, in turn allowed B.G. Coney to use the saw based upon the agreement to reimburse him for the rental costs. However, there was no written contract of lease between lessor and contractor as required by La.R.S. 9:4802(A)(4). Thus, Jackson may not claim this amount as a lessor. It is equally clear that the plaintiff may not recover this amount as a supplier of materials, as the saw in question did not become a component part of the immovable nor was it consumed at the site of the immovable. La.R.S. 9:4802(A)(3).

In the alternative, plaintiff urges that he is entitled to recover the saw rental from B.G. Coney as a matter of simple contract, independent of the provisions of the Private Works Act. The plaintiff rented the saw at the request of a B.G. Coney employee, Louis Simpson, who assured the plaintiff that he would be reimbursed by B.G. Coney. However, in order to enforce this agreement against B.G. Coney, an agency relationship between Coney and Simpson must be shown.

An “agent” is one who acts for or in the place of another by authority from him. Craft v. Trahan, 351 So.2d 277 (La.App. 3rd Cir.1977), writ denied, 353 So.2d 1336 (La.1978). Actual authority exists when the principal grants authority to the agent by express or implied consent. Apparent authority exists when the principal acts in such a way that a third person is justified in assuming that the agent has authority to act for the principal, even though the principal may not have granted the authority to the agent. Thompson v. Great Midwest Fur Co., 395 So.2d 840 (La.App. 1st Cir.1981). The principal may be bound for the acts of an agent who acts with actual or apparent authority.

In the instant case, there is nothing in the record to show that Simpson was authorized to act in the name of B.G. Coney. The plaintiff was the only person to testify. He stated that Simpson was B.G. Coney’s job superintendent. There is no testimony, however, relative to the scope of Simpson’s authority or what his job entailed. In short, the plaintiff has failed to allege that Simpson had the authority, actual or apparent, to act for B.G. Coney, nor has he offered any proof in support thereof. Under these circumstances, Simpson’s agreement with the plaintiff may not be imputed to B.G. Coney. There is no error in the trial court’s denial of this claim.

We next consider whether the plaintiff may recover the $156.08 in expenses he incurred in connection with the Galliano project. The plaintiff testified that when he was transferred from the Jennings project to the Galliano project, he was to be paid the same hourly rate, and in addition thereto, he was to be paid for the added personal expenses resulting from his living away from home. He asserts that these expenses should be considered part of “the price of work performed at the site of the immovable.” La.R.S. 9:4802(A)(2).

It is unnecessary for us to consider whether the plaintiff’s added living expenses are recoverable as a cost of labor. The record shows that in large measure, the $156.08 the plaintiff seeks to recover represents expenses the plaintiff incurred on behalf of Barras. The plaintiff would pay for items needed by the construction crew on the job, after which he would be reimbursed by Barras. It is clear that these payments form no part of the price of work performed at the site of the immovable. The plaintiff’s testimony indicates that some of the expenses covered by the $156.08 check may have been his personal expenses. However, he offers no evidence to show the amount of the expenses or the purpose for which they were incurred. In short, the plaintiff has failed to prove that any portion of the alleged expenses covered by the $156.08 check represents the “price of work performed at the site of the immovable.” La.R.S. 9:4802(A)(2).

Next, we consider the $3,030.00 advanced by Jackson to Barras to meet the monthly payroll. The plaintiff urges that this loan should also be considered part of “the price of work performed at the site of the immovable”, and hence recoverable from the owner and the contractor. Clearly it is not. The record shows that after Jackson deposited the funds in the Barco account, all employees and subcontractors were paid. No employee’s labor went uncompensated. Jackson stands in the same position as a bank which loans money to a contractor or subcontractor to pay laborers. He is not entitled to claim this amount from the general contractor and the owner, nor is he entitled to a lien against the Jennings job site. See Red River Valley Bank & Trust v. Louisiana P.C. Co., 142 La. 838, 77 So. 763 (1918); Thompson v. O’Leary, 146 La. 843, 84 So. 116 (1919).

The plaintiff also asserts that the trial court erred in refusing to allow him to introduce evidence of the correct legal description of the Wal-Mart property in La-fourche Parish. The affidavit of claim filed in Lafourche Parish contained the following description of the Wal-Mart property:

“Tarpon Heights Plaza, located at the intersection of 92nd Street and Highway 308, Galliano, Louisiana.”

The trial court rendered judgment recognizing the plaintiffs lien on the Lafourche Parish property to secure the payment of unpaid wages. The judgment recognized the lien on the property as described in the plaintiffs affidavit of claim. The plaintiff contends that the judgment should have recognized the lien on the property as per the correct legal description.

First, we observe that the question of the sufficiency of the description of the property in the plaintiffs affidavit is not before us. The plaintiff did not pray for reformation of the instrument, nor did defendants question the sufficiency of the description. The narrow issue is whether the lien against the property may be recognized as per a corrected property description different than that appearing in the affidavit of claim. We find that it may not, and that the trial court was correct in refusing to admit evidence of a more particular description.

La.R.S. 9:4822(G) provides:

“A statement of a claim or privilege:
(3) Shall reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.”

The purpose of the statement of claim or privilege is to give notice of the claim to the owner and the contractor and to give third persons notice that a privilege is claimed on the property. See Mercantile Nat. Bank of Dallas v. J. Thomas Driscoll, Inc., 194 La. 935, 195 So. 497 (1940).

Assuming, arguendo, that the description of the property in the statement of claim is insufficient to put third persons on notice of the claim, a subsequent correction of the description could not prejudice the rights of third persons who, in the interim, were misled by the erroneous description. Such would thwart the purpose of the statement of claim or privilege. Further, defendants have not questioned the sufficiency of the description employed in the affidavit. Under these circumstances, the trial court was correct in refusing to admit1 evidence of the correct description.

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

AFFIRMED.

      . This suit was brought in Jefferson Davis Parish. With regard to the claim against the La-fourche Parish job site, no objection to the venue was made by defendants.

      . Defendants did not appeal or answer the appeal. Therefore, that portion of the judgment awarding plaintiff the principal sum of $2,349.00 and recognizing his lien and privilege against the Galliano job site is final.


text:
    Murphy LEMALLE, Plaintiff-Appellee, v. WINN DIXIE LOUISIANA, INC., Defendant-Appellant.
    No. 83-775.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Brinkhaus, Dauzat & Palgoust, Jerry J. Falgoust, Opelousas, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

Defendant appeals from a judgment granting plaintiff an additur and from a separate judgment denying defendant’s motion for a new trial. We remand.

The issues on appeal are:

(1) Whether the trial court erred in granting the plaintiff an additur when defendant opposed the additur to the jury verdict.
(2) Whether, in the interest of judicial economy, the appellate court should decide the question of quantum if the trial courts’ judgments are reversed.

Murphy Lemalle filed suit against Winn-Dixie Louisiana, Inc. for back, neck and shoulder injuries suffered by him in a slip and fall in the Winn-Dixie store in Ville Platte on March 9,1982. A twelve member jury apportioned fault 23% to plaintiff and 77% to defendant, and awarded the following damages:

Physical pain & suffering $2,500
Shock, mental pain & anguish 2,500
Medical expenses 1,543
Loss of earnings 1,000
TOTAL $7,543

After a formal judgment was signed in accordance with the jury’s findings, the plaintiff filed a “Motion to Set Aside the Jury Verdict and Enter a Judgment Notwithstanding said Verdict and Alternatively for a New Trial to be granted only because of the Inadequacy of the Verdict.” The trial court denied plaintiff’s motion for judgment n.o.v., but granted plaintiff’s motion for a new trial. Without conducting a new trial, the court unilaterally entered judgment increasing the jury verdict from $7,543.60 to $22,543.60.

The defendant then filed a motion for a new trial on the basis that it had not consented to the court ordered additur. This motion was also denied.

ACTION OF THE TRIAL COURT

We find no abuse of the trial court’s discretion in its grant of plaintiff’s motion for a new trial limited to the issue of quan-turn. LSA-C.C.P. Art. 1971 et seq. authorizes a trial court to grant a new trial on all or part of the issues where the judgment appears clearly contrary to the law and the evidence or if there is good ground therefor. However, our law, substantive and/or procedural, does not authorize a trial court to unilaterally increase a jury award. If the trial court determines that a jury award is so excessive or inadequate such that the award is contrary to the law and evidence, the court may order a new trial pursuant to LSA-C.C.P. Art. 1971 et seq. or enter a remittitur or additur, or in the alternative a new trial pursuant to the provisions of LSA-C.C.P. Art. 1814. We do not consider LSA-C.C.P. Art. 1814 as superceding the general grant of authority of LSA-C.C.P. Art. 1971 et seq., but rather the provisions of Art. 1814 provide an additional remedy where the trial court is of the opinion that a verdict is so excessive or inadequate that a new trial should be granted for that reason only.

The record in the instant case makes clear that the trial court granted a new trial, limited to the issue of quantum, pursuant to LSA-C.C.P. Art. 1971 et seq. The new trial was not granted as an alternative to additur pursuant to LSA-C.C.P. Art. 1814, as the trial court did not grant the defendant the option of electing an additur as an alternative to the new trial. As aforestated, we find that the trial court was clearly within its authority to grant a new trial limited to the issue of quantum, but was clearly without authority to unilaterally order an increase in the jury’s verdict.

LSA-C.C.P. Art. 1977 provides:

“When a new trial is granted, it shall be assigned for hearing in accordance with the rules and -practice of the court.

In Mitchell v. Windham, 426 So.2d 759 (La.App. 3rd Cir.1983), we stated the following with regard to the above quoted article:

“This procedural rule, dating back to the Code of Practice of 1870, Article 563, has been consistently applied to mean that when a trial court grants a new trial or a rehearing, which amounts to a setting aside of the former judgment, it cannot proceed immediately to render another and different judgment. The case must again be set for trial or hearing, because the only question presented for decision on a rule for a new trial or rehearing is whether the same shall be granted or refused and nothing more. State ex rel. Shreveport Cotton Oil Company v. Blackman, Judge, 110 La. 266, 34 So. 438 (La.1903); Jacobs v. Lagrante, 9 La.App. 409, 119 So. 538 (La.App. 1st Cir.1929); Loomis v. Connecticut General Life Ins. Co., 160 So.2d 270 (La.App. 4th Cir.1964); and Pickering v. Hibernia National Bank, 306 So.2d 469 (La.App. 4th Cir.1975).

For the above reasons, we determine that the trial court judgment of June 3, 1983, insofar as it granted a new trial limited to the issue of quantum, is valid and should be affirmed. However, such judgment, insofar as it orders an increase in the jury’s award, is absolutely null and without effect.

REMAND

Plaintiff and defendant have joined in their request that this ⅛ court decide this case on the merits in the interest of judicial economy. In support of their request they point out that the entire record of the jury trial is before us and cite Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

In oral argument, defendant contended that the trial judge did not grant a new trial but only an additur. We disagree. Although the trial court’s oral reasons for denying plaintiff’s motion for judgment n.o.v. and its decision to grant an increase of the jury verdict do not indicate that he granted a new trial, the formal judgment of the court signed on June 3, 1983 clearly states that a new trial was granted solely on the issue of inadequacy of the jury award. No one has attacked the wording of the trial court’s formal judgment granting a new trial.

A judgment is the solemn adjudication of a court settling the rights of the parties, and however unjust, erroneous, or illegal the settlement may be, the parties can only claim under it that which, by its terms, the judgment awards. Allen v. Commercial National Bank in Shreveport, 147 So.2d 865 (La.1962).

Therefore, the status of this case on the trial level is that a new trial is pending on the issue of quantum. Gonzales, supra, and its progeny are inapplicable because we have not been presented with a valid final judgment of the trial court on the issue of quantum. When the trial court granted a new trial limited to the issue of quantum, the original judgment of the jury on this issue was set aside and vacated. Mitchell v. Windham, supra; Carrier Leasing Corp. v. Ready-Mix Cos., Inc. 372 So.2d 601 (La.App. 4th Cir.1979), writ denied 375 So.2d 943 (La.1979).

We quote with approval the following language from Mitchell v. Windham, supra:

“The instant case is to be distinguished from Riddle v. Menard, 355 So.2d 1350 (La.App. 3rd Cir.1978) and Kaplan v. Missouri-Pacific Railroad Company, 409 So.2d 298 (La.App. 3rd Cir.1981). In both those cases the trial courts refused to grant a new trial although they stated on the record that the judgment was wrong and should be corrected. This circuit took those cases and decided them, because there was an ap-pealable judgment before us, the record was before us, and the question of a new trial was moot at that point. The instant case is different, of course, because a new trial has been granted, and we are powerless to intervene. ”

Accordingly, the judgment of the trial court, insofar as it orders an increase in quantum, is reversed and set aside. The judgment of the trial court ordering a new trial on the issue of quantum is affirmed. .This case is remanded for the purpose of conducting a new trial solely on the issue of quantum, and for further proceedings according to law, not inconsistent with the views herein expressed. Costs of this appeal are assessed equally between the plaintiff, Murphy Lemalle, and the defendant, Winn Dixie Louisiana, Inc. All other costs are to await final determination of the case.

Judgment annulled and set aside in part, and cause remanded.

REMANDED.


text:
    Mary Ann Smith HINTON, Plaintiff-Appellant, v. Jerry Earl HINTON, Defendant-Appellee.
    No. 83-776.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Sturgeon, Gore & Gremillion, John Sturgeon, Ferriday, for plaintiff-appellant.
    Smith, Taliaferro, Seibert, Boothe & Pur-vis, Leo Boothe, Jonesville, for defendant-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

After obtaining a legal separation, Mary Ann Smith Hinton filed this suit for divorce and a partition of the community against Jerry Earl Hinton. Subsequently, plaintiff filed a supplemental petition reiterating her demand for a partition and further praying that defendant be ordered to file an accounting of the community of acquets and gains previously existing between the parties. The trial judge thereafter rendered judgment by default on October 13, 1980, granting a divorce and ordering a partition. On November 26,1981, plaintiff, by motion, reiterated her demand to have defendant account for assets and income of the community. On February 23, 1982, after a hearing on the rule, the trial judge ordered defendant to account for all assets of the community and for all income received for the period 1975-1981.

After trial of the action to judicially partition the community, judgment was rendered on March 1, 1983 awarding a money judgment in favor of Mrs. Hinton in the amount of $9659.18, and ordering Mrs. Hinton to execute a deed in favor of Jerry E. Hinton conveying any and all interest that she formerly owned in the community of acquets and gains. Defendant filed a motion for a new trial on the same day, which motion was denied on May 23, 1983. Plaintiff appealed and defendant has answered the appeal.

The parties were married on September 3, 1966. A judgment of separation was signed on May 21, 1979, and in due course became final. The community of acquets and gains formerly existing between the parties was dissolved as of February 20, 1979, the date of the filing of the wife’s petition on which the judgment was based.

In her petition for a judicial partition, plaintiff listed, non-exclusively, various items of alleged community property. Defendant, in his answer, admitted that there were various items of furniture, motor vehicles and some real estate acquired by the community. Defendant, in answer, also alleged the payment by him of certain community debts with separate funds for which he sought reimbursement. There was no inventory taken or descriptive list filed by the parties in these proceedings. The evidence adduced at trial focused primarily on the characterization of certain assets used by defendant and his father in their farming operation, as community, as the separate property of the husband, or as belonging to a third person.

Prior to the adoption of Act 439 of 1982 (ignoring the brief life of C.C. 2369.1, enacted by Acts 1981, No. 751), other than the articles on reimbursement and accounting, the civil code articles on matrimonial regimes failed to provide a procedural basis for dealing with the right to a partition upon termination of the community. Prior to the enactment of the cited act (La.R.S. 9:2801), the civil code articles on the partition of successions were made applicable to the partition of a community estate. La. C.C. Arts. 1289 and 1308. Pursuant to these articles, the spouses could agree on how the property should be divided, in which case they were permitted to enter into a voluntary partition. La.C.C. Arts. 1294 and 1322. If the parties were unable to agree, either spouse was permitted to file a petition for a judicial partition. In the latter case, the judge had discretion as to the mode of partition — whether in kind or by licitation. La.C.C. Arts. 1336-1340. This discretion was limited by statute and the jurisprudence which clearly stated a preference for partition in kind. La.C.C.P. Art. 4606; Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959).

Under our jurisprudence, the spouses’ ownership of community property at dissolution was deemed to be subject to payment of community creditors. The spouses’ interests were merely contingent, as the amount of community debts had to be determined before the residuum could be divided between the spouses. Consistent with this concept was the rule prohibiting piecemeal partitions of the community. Efforts by one spouse to recover a money judgment from the other spouse before payment of debts were typically unsuccessful. 42 L.L.R. 789 at 806 and authority cited therein.

In the present case, in partitioning the community estate, the trial judge stated as follows:

“This Court also finds that the community of acquets and gains owned equities in certain properties. Most of the equities were paid for by Jerry E. Hinton, and the Court feels that he is entitled to all of these equities; however, as Jerry E. Hinton receives these equities, it is also his duty to pay the balance of the amount due upon them. That is, Jerry E. Hinton gets all of the community property, but pays all of the balance due.”

He further awarded judgment in favor of plaintiff in the sum of $9659.18 as her share of community earnings at the time of divorce.

We find no basis in the record for the award of the money judgment to plaintiff and there is no basis under our law for the allocation of all community assets and debts to the husband. In addition, we find that the mode of partition which the trial court employed ignored the statutory and jurisprudential limits of discretion accorded in such matters. The judgment of the trial court is therefore reversed.

As aforestated, there was no inventory taken or descriptive lists filed by the parties. In addition, despite voluminous exhibits, there is a conspicuous absence in the record of any detailed evidence of the assets belonging to the community; the valuation of such assets; and the debts owed by the community. We are therefore unable, on the record before us, to equally distribute the community effects. In Bodin v. Bodin, 392 So.2d 759, at 762 (La.App.3rd Cir.1980), we stated as follows:

“Appellate courts are given the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitely on the issues presented or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision. LSA-C.C.P. Article 2164; Roark v. May, 367 So.2d 397 (La.App.3rd Cir.1978), writ ref., 368 So.2d 123 (La.1979); Jones v. Leday, 373 So.2d 787 (La.App.3rd Cir.1979); Turpin v. Turpin, 175 So.2d 357 (La.App.2nd Cir.1965). Accordingly, we feel that, in the interest of justice, the judgment of the trial court must be reversed and this matter remanded to the trial court for further consideration of the issues presented....”

Under the circumstances here present, we conclude that this matter must be remanded to the trial court for further consideration of the issues presented. Upon remand, we conclude, as did our brethren of the Fourth Circuit in Simon v. Simon, 421 So.2d 931 (La.App.4th Cir.1982), that the partition should be conducted pursuant to the procedure established by Acts 1982, No. 439, enacting La.R.S. 9:2801. We agree with the statement of the court in Simon, that the statute is procedural and now governs save as to partitions already so far under way that it would cause unnecessary expense or delay. In the present case, the procedural differences should accommodate, rather than impede, an equitable partition of the community.

For the reasons assigned, the judgment appealed from is reversed and set aside and it is now ordered that this matter be remanded to the trial court for further proceedings consistent with the law and the views hereinabove expressed.

REVERSED AND REMANDED.


text:
    Beverly Ann LAPORTE, Plaintiff-Appellee, v. William Reed HOWELL Defendant-Appellant.
    No. 83-777.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Edwards, Stefanski & Barousse, J. Michael Stefanski, Crowley, for defendant-appellant.
    Roy & Hattan, L. Lane Roy, Lafayette, for plaintiff-appellee.
    Before GUIDRY, LABORDE, and KNOLL, JJ.
   KNOLL, Judge.

This is an appeal from a trial court judgment terminating alimony payments from William Reed Howell to Beverly Ann La-porte, reducing child support payments for the minor child to $500 a month, and awarding $200 a month for the support of Patricia Lynn Howell, a major child who intervened in this lawsuit.

Howell appeals arguing that the trial court erred (1) in awarding $500 monthly child support for his minor child; and, (2) in awarding $200 monthly support for his major child.

Laporte has answered the appeal contending that the trial court erred in terminating her alimony payments. We affirm in part; reverse in part and render.

FACTS

William Reed Howell and Beverly Ann Laporte (her maiden name) were divorced on November 20, 1978, At the time of their divorce, alimony and child support for their three minor children were set at $3,100. The three minor children were Lisa, Patty and Dana. On March 27, 1980 a judgment was rendered setting the alimony at $250 a month and child support at $1,350 a month. In December 1981 Lisa, the oldest daughter, was married and moved out of her mother’s home. Patty became eighteen years of age in October 1982 and began college at the University of Southwestern Louisiana in August of 1982. When the original alimony award was made Beverly Laporte was unemployed. In December of 1979 she began working as a secretary for a district court judge. Her monthly salary has increased from $600 to $1,500. Patty is attending college and has a part-time job with a Lafayette law firm as a secretary/receptionist. William Reed Howell is a licensed physical therapist. Beginning in 1977 his income has steadily decreased from approximately $50,000 a year to $20,000 a year due to alcoholism which has debilitated him.

PERMANENT ALIMONY

A spouse who seeks the modification of an alimony award must show a change in circumstances of one of the parties from the time alimony was fixed. Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983); Ducote v. Ducote, 339 So.2d 835 (La.1976); Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3rd Cir.1982); Lynn v. Lynn, 430 So.2d 363 (La.App. 3rd Cir.1983), writ denied 434 So.2d 1094 (La.1983).

In the present case, Howell has successfully met his burden of proving a change in circumstances that justify a termination of alimony. Laporte is now gainfully employed and is able to provide for herself. Two of the children have attained the age of majority. Conversely, Howell’s income and his overall circumstances have declined due to his gross alcoholism.

Laporte’s assets include the family home which rests on approximately three acres of land. This home is encumbered by a $30,000 mortgage and has an estimated value of between $100,000 and $130,000. Her monthly note is $376.41.

Laporte further owns six acres of woodland in Vermilion Parish which she inherited from her mother. She sold a lot located behind the family home for $22,000 and a parcel of inherited land for $12,000. She owns a 1977 Cougar automobile and a 1977 Chevrolet Chevette which her daughter, Patty, uses at college. She .also sold several shares of stock in Gulf Coast Bank which netted her $5,000.

Alimony after divorce is awarded to a spouse only if that spouse proves that she or he has insufficient means for her/his maintenance. Volker v. Volker, 398 So.2d 134 (La.App. 3rd Cir.1981). In determining the needs of - the claimant spouse reasonable costs of food, clothing, shelter, utilities, transportation, medical care, household expenses, as well as tax liability generated by alimony payments are considered. Ducote, supra; Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981), writ denied 404 So.2d 278 (La.1981).

Laporte listed her monthly expenses as $3,107.40. These expenses, however, included items which went beyond maintenance, e.g., cable television, a phone for the children, entertainment, and pool repair. She also admitted that this figure included substantial contributions to the support of the two major daughters, e.g., food, clothing, transportation, and monetary contributions for Patty’s living expenses, together with cash gifts to the oldest daughter, Lisa, who is married. The needs of major children should have no influence in determining a spouse’s need for alimony. Green, supra.

At the time alimony was first fixed Howell was a licensed physical therapist who had worked in Abbeville for 15 years. His income was approximately $50,000. Beginning in 1977 Howell's acute alcoholism has adversely effected his income. In 1978 his gross income was $50,338; in 1979 it was $35,000; in 1980 it was $19,745; and in 1981 it was $19,205. He is living in a remodeled barn on his sister’s property. His sister has paid his alimony and child support since August of 1981.

The evidence clearly demonstrates that Beverly Laporte no longer needs alimony and, under LSA-C.C. Arts. 160 and 232, she is no longer entitled to it. We therefore affirm the trial court’s termination of permanent alimony.

CHILD SUPPORT

On March 27, 1980 the trial court awarded Laporte $1,350 for the support of her three minor daughters. There is now only one minor child living with the mother.

Any modification of the divorce judgment for child support must be predicated on a change in circumstances of one of the parties, and the litigant has the burden of proving a change in circumstances. Trice v. Trice, 428 So.2d 1265 (La.App. 3rd Cir.1983). The trial judge is given great discretion in either granting or modifying awards of child support and his judgment will not be set aside unless a clear abuse of that discretion is shown. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1st Cir.1982).

The attainment of majority by two of Howell’s daughters justified a reduction of monthly child support payments. Howell contends that the trial court erred in not further reducing his child support payments.

Dana, Howell’s only remaining minor child, is fifteen years of age and attends Vermilion Catholic High School. Her school tuition is $100 a month. Because of her growing needs, her expenses are greater than they were when child support was last set.

Howell argues that Laporte is in a better financial position to meet the needs of support to Dana. Laporte has the burden of the day-to-day costs of providing a home, care, and supervision for her daughter. Her parental obligation to support her daughter under LSA-C.C. Art. 227 has been well-fulfilled. See: Johnson v. Johnson, 432 So.2d 1140 (La.App. 3rd Cir.1983); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2nd Cir.1981).

In this instance we do not find that the trial, court has abused its discretion in setting Howell’s child support obligation for Dana at $500 per month.

SUPPORT OF MAJOR CHILD

Howell complains that the trial court erred in finding that he had entered into an oral contract to support his major child, Patty, while she attended college and fixing her child support at $200 per month.

The trial court found that a contract was established from the following testimony:

[Questions propounded to Patty]
“Q. Okay. Did your father ever tell you in the past, Patty, that he wanted you to go to college?
A. Yes.
Q. Did he always encourage you to go to college?
A. Yes, sir.
Q. Was that always one of his ambitions for you, in fact, and your sisters?
A. Yes, sir.”
[Questions propounded to William Reed Howell]
“Q. Okay. Reed was it always your intention your children should go to college? Didn’t you in fact tell them that?
A. Very definitely.
Q. And I suppose you’re satisfied Patty is going to college?
A. Very definitely.
Q. It is still your wish she should continue on in school?
A. Very definitely.
Q. Continue at USL and earn her degree?
A. Very definitely.
Q. And you knew that she she was in school:
A. Yes. ”

The trial court then concluded:

“... the circumstances surrounding the education of Ms. Howell suggests that she and her father entered into an innominant [sic] contract by which she agreed to go to college and he agreed to pay her expenses ....”

We find the record does not support that an innominate contract was established between Patty and her father. The evidence supports a finding of a precatory request rather than a contract for the support of a major child.

Accordingly, the judgment of the trial court ordering William Reed Howell to pay child support at the rate of $200 per month for the support of his major child, Patty, is hereby reversed and set aside.

DECREE

For the foregoing reasons the judgment of the trial court in favor of William Reed Howell denying alimony to Beverly Ann Laporte is hereby affirmed. The judgment in favor of Beverly Ann Laporte awarding child support for the minor, Dana Howell, is hereby affirmed. The judgment in favor of the major child, Patricia Lynn Howell, an intervenor to this law suit, for child support is hereby reversed.

All costs are assessed equally against Beverly Ann Laporte and William Reed Howell.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.


author: YELVERTON, Judge.

text:
    Robert RIGBY, Sr., Individually, Etc., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 83-778
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Chris J. Roy and Rowena T. Jones, Alexandria, for plaintiffs-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

In this case plaintiff unsuccessfully sought to stack the uninsured motorist coverages under two insurance policies on two vehicles owned by him. On appeal he claims the trial court was in error. We agree with the trial court that stacking is not permitted on these facts and affirm the dismissal of the suit.

Walter Rigby, the minor son of plaintiff, Robert Rigby, was injured in a single car accident while he was riding as a passenger in an automobile owned by Ben Rogers and driven by his son, Byron Rogers. The accident was caused by the fault of the driver.

The claim for personal injuries against the Rogers father and son and their liability insurer, Economy Fire and Casualty Company, was settled for $15,000, the per person liability under the policy issued to Rogers. In this settlement plaintiff reserved his right to proceed against defendant, State Farm Mutual Insurance Company, his uninsured motorist carrier. ■

At the time of the accident, Robert Rigby owned two vehicles, a 1972 Ford pickup truck and a 1980 Pontiac automobile. State Farm had in effect a policy of automobile liability insurance on both vehicles. Each policy provided uninsured motorist coverage with per person bodily injury limits of $5,000.00.

After suit was filed against it demanding payment from both policies, State Farm paid $5,000 under one policy but refused to pay under the second one. As to its liability under the second policy State Farm filed a motion for summary judgment. The trial court granted the motion and dismissed the suit. From that judgment plaintiff appealed.

The granting of a motion for summary judgment means that the trial court has determined that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

This motion for summary judgment in favor of State Farm was granted on the basis of its argument that under the Louisiana Uninsured Motorist Statute, LSA-R.S. 22:1406(D)(1)(c), plaintiff is not allowed to recover under more than one uninsured motorist policy coverage. This provision reads as follows:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
“[l](c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.”

The case of Nall v. State Farm Mutual Automobile Insurance Company, 406 So.2d 216 (La.1981), answers the question presented. There, as in this case, two automobile policies were issued to a father whose son was injured while a passenger in a vehicle owned by another. Since the two policies did not provide uninsured motorist coverage on the vehicle in which the son was an occupant, it was held that the uninsured motorist coverage of the father’s policies could not be stacked to provide coverage for the son’s injuries. For the same reasons the uninsured motorist coverage of the State Farm policies here cannot be stacked.

The Louisiana Uninsured Motorist provision, LSA-R.S. 22:1406(D)(l)(c), and the corresponding jurisprudence clearly indicate that the trial court correctly granted the motion for summary judgment in favor of the defendant, State Farm. The plaintiff’s demand for the stacking of the policies’ coverage was properly dismissed.

For these reasons the trial court’s judgment is affirmed. Costs are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Richard Joseph HAYNIE, Plaintiff-Appellant, v. Phyllis Logan HAYNIE, Defendant-Appellee.
    No. 83-780.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Irving Ward-Steinman, Alexandria, for plaintiff-appellant.
    Vivian Whittle, Alexandria, for defendant-appellee.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   GUIDRY, Judge.

In this matter, the court sustained an exception of lis pendens filed by defendant and dismissed the plaintiff’s suit.

On June 1, 1983, plaintiff, Richard Joseph Haynie, filed this suit which bears docket no. 127,532 in the Ninth Judicial District Court for the Parish of Rapides. In his petition, plaintiff sought a separation from bed and board on the grounds of abandonment; provisional and permanent custody of the minor child, Tara Marie Haynie; and, dissolution of the community of acquets and gains. On June 2, 1983, the court issued an ex parte order granting Richard Joseph Haynie provisional custody of his minor daughter, Tara Marie Haynie. A curator ad hoc was appointed to represent the absent defendant, Phyllis Logan Haynie, and the curator was served on June 7, 1983.

The defendant, Phyllis Logan Haynie, through counsel, filed an exception of lis pendens on June 8, 1983, to which she attached a certified copy of the proceedings in civil suit number 127,478 on the docket of the Ninth Judicial District Court for the Parish of Rapides, which was filed on May 27, 1983, by Phyllis Haynie against Richard Haynie for separation from bed and board on the grounds of cruelty. In that suit, Mrs. Haynie also sought provisional and permanent custody of the minor child, Tara Haynie; dissolution of the community of acquets and gains; and, alimony and/or child support. On May 31, 1983, the court in civil suit number 127,478 issued an order setting a rule to be heard on June 13, 1983, for provisional custody and alimony pen-dente lite and/or child support. Personal service of civil suit number 127,478 was made on Richard Haynie on June 4, 1983. The exception of lis pendens in civil suit number 127,532 was also set to be heard on June 13,1983. Service of the rules to show cause for the hearing on the exception of lis pendens in civil suit number 127,532 and on the hearing for provisional custody in civil suit number 127,478, which were both set for June 13, 1983, was made on Richard Haynie on June 10, 1983.

After hearing on the exception of lis pendens, the trial judge rendered judgment sustaining the exception of lis pendens, dismissing civil suit number 127,532 without prejudice and cancelling the ex parte order therein which granted provisional custody of Tara Marie Haynie to Richard Joseph Haynie.

We find that the trial judge, in written reasons for judgment, properly disposed of two issues which plaintiff reurges on appeal. The trial judge correctly concluded that for the purpose of the exception of lis pendens a civil action commences when a petition is filed, not when citation is served. Sims v. Sims, 247 So.2d 602 (La.App. 3rd Cir.1971). We also find no abuse of discretion in the trial judge’s failure to dismiss the hearing on the exception of lis pendens for the alleged failure to fix the hearing in compliance with the rules of the Ninth Judicial District Court.

We nonetheless reverse finding merit in plaintiffs remaining argument which was not addressed in the lower court’s written reasons for judgment, and which is apparently urged for the first time on appeal. Appellant cites Lamb v. Lamb, 411 So.2d 1 (La.1982) for the proposition that the wife’s suit for separation based on cruelty and the husband’s suit for separation based on abandonment are suits on separate causes of action, and therefore, the trial court erred in maintaining the exception of lis pendens. . In Lamb, supra, the court stated as follows:

“The wife’s suit for divorce (based on adultery) and the husband’s suit for divorce (based on living apart for one year) are suits between the same parties and have the same object (the same “thing demanded”), but are not suits on the same cause of action. C.C.P. Art. 531. Cause in C.C. Art. 2286 (mistranslated from the French as “cause of action”) is the juridical or material fact which is the basis of the right claimed or the defense pleaded, and for the purpose of res judi-cata (or lis pendens) cause of action essentially refers to the grounds upon which the demand is based. Mitchell v. Bertolla, 340 So.2d 287 (La.1976).

We find that Lamb compels the same result in the present case. Because the two actions for separation are based on different causes of action (grounds), LSA-C.C.P. Art. 531 does not apply, and the trial court erred in maintaining the exception.

For the above and foregoing reasons, the order of the trial court dismissing plaintiff’s suit is reversed and there is judgment rendered overruling the exception of lis pendens filed by the defendant. This case is remanded to the district court for further proceedings consistent with the views expressed. Costs of appeal assessed against defendant, Phyllis Logan Haynie.

REVERSED AND REMANDED.

      . Although service on these rules does not appear of record, Mr. Haynie’s allegation of service on the 10 of June is not contested by Mrs. Haynie.

       If the wife had litigated her suit for divorce based on adultery and had lost, she could have immediately filed a suit for divorce grounded on a separation of one year, and the judgment in the adultery suit clearly would not constitute a res judicata bar to the second suit (even if the one-year cause of action had accrued before the judgment). Similarly, the wife’s adultery suit does not bar the filing by the other party of a divorce suit based on another cause of action (other grounds).
      The wife’s recourse, after the husband filed a no fault divorce suit, was not to retard that suit by the filing of an exception of lis pendens (particularly on the last day of an extended period for filing responsive pleadings), but to seek consolidation or to reconvene for alimony based on her freedom from fault. ...”