author: YELVERTON, Judge.

text:
    Mr. & Mrs. Harry G. LANDRY, Jr., Plaintiffs-Appellees, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant.
    No. 83-703.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara and James L. Pate, Lafayette, for defendant-appellant.

      Armentor & Wattigny, David W. Groner, William R. Collins, New Iberia, for plaintiff s-appellees.
    Franklin, Moore & Walsh, Richard T. Reed, Baton Rouge, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

This is a suit by Mr. and Mrs. Harry G. Landry, Jr. against International Harvester Company and Sam Broussard, Inc. to recover damages and attorney’s fees allegedly sustained as a result of the defective manufacture of a 1979 International truck and/or faulty repair work performed by Sam Broussard, Inc. The defendant, Sam Broussard, Inc., filed a third party demand against International Harvester. The trial court rendered judgment in favor of the plaintiffs against both defendants in solido in the sum of $8,644.79, but denied the plaintiffs’ claim for attorney’s fees. Additionally, the trial court rendered judgment in favor of Sam Broussard, Inc. on its third party demand against International Harvester in the amount of $8,644.79, and also denied the third party plaintiff’s demand for attorney’s fees. From this judgment International Harvester appeals. Sam Broussard, Inc., answered the appeal from the third party judgment asking for attorney’s fees. Plaintiffs answered the appeal asking for an increase in the award as well as attorney’s fees. We reverse the judgment against International Harvester in the main demand, and also reverse the judgment against it in the third party demand. The judgment is otherwise affirmed.

The primary liability issue on appeal is whether there was proof that there existed a defect in the manufacture of the vehicle so as to hold International Harvester, as the manufacturer, liable. A second liability issue is whether Sam Broussard, Inc.’s liability is based on redhibition, or arises ex delicto. This latter issue must be determined in order to answer the contention of the parties regarding attorney’s fees.

The primary issue on appeal regarding damages is the sufficiency of the award. No one contends that it is too much. Only the plaintiffs have raised this issue on appeal, contending that the award is not enough. The remaining issue concerning the award is whether attorney’s fees are due.

We will discuss these issues after first narrating the basic facts.

FACTS

In 1979 and 1980 the Landrys were in the trucking business. Mr. Landry drove the truck and Mrs. Landry kept the books. The trial judge accurately described the facts leading up to this lawsuit as follows:

“On February 20, 1979, Harry G. Landry, Jr., purchased from Sam Broussard, Inc. a 1979 International truck manufactured by the International Harvester Company. He bought the truck for purposes of hauling sand, gravel, dirt and mud. .On September 12, 1979, he returned the truck for repairs as it was tracking to one side. Defective bushings were found on both sides of the Hen-drickson walking beam. These beams were removed and the bushings were reinstalled on them. This was done on the basis of a warranty claim by Brous-sard from International.
“Thereafter, on January 29, 1980, while Mr. Landry was driving his truck in an easterly direction on Old Highway 90 near the old naval station, he felt a jerk on the left rear of the truck and saw that the truck was beginning to sway. He pulled the truck over to the right and it went into the ditch and leaned over, causing considerable damages.”

The accident happened because the bushing bolt on the left rear end of the Hen-drickson Walking Beam, which is part of the rear suspension system of the truck, came out causing the walking beam to disengage from the rear end housing. This caused a loss of control, the accident, and the damages.

THE LAWSUIT AND THE JUDGMENT

Plaintiffs lost time and money while the truck was being repaired. They sued Sam Broussard, Inc., as the seller, and International Harvester, as the manufacturer, in redhibition. They petitioned to have the sale rescinded and to recover the purchase price of the truck, or at least a reduction in price, as well as the cost of repairs, loss of earnings while the truck was being repaired, and an award for mental anguish because of the interference with their business. The case was consolidated with a subrogation suit by plaintiffs’ insurance company against the defendants for the cost of repairing the vehicle. That suit was settled prior to trial leaving only plaintiffs’ claims for redhibition and/or faulty repairs, down time, and mental anguish.

The trial court determined that the cause of the accident was the failure of the bolt and capscrew to hold the bushings in place. He found this condition to be a redhibitory defect in the manufacture of the vehicle. He concluded that the plaintiffs were entitled to recover from both the seller and the manufacturer, but that the plaintiff was not entitled to attorney’s fees for the stated reason that there was no showing of bad faith on the part of either defendant. Finding that the ultimate blame lay with a defect in the manufacture of the truck, the trial court gave Sam Broussard, Inc., a judgment in its third party demand against International Harvester.

We turn now to the liability issues involved in this appeal.

LIABILITY

Our understanding of the mechanics of how the accident happened — and consequently the responsibility for it — is based almost entirely upon the deposition testimony of an expert mechanic, Louis Margot. In this reliance we are in accord with the trial judge who indicated, in his written reasons, that he likewise relied heavily on this expert.

Mr. Margot explained that the Hendrick-son Walking Beam, used by International Harvester in the manufacture of its trucks, is the main connector between the front and rear axles and the frame. The accident happened because the walking beam became disconnected from the rear axle. In the words of Mr. Margot:

“There’s only one way that a walking beam could fall out from its position in the two hanging brackets. These two adapters go through this big bushing with the spacer and they’re secured with this three-quarter inch nut and bolt. This bolt does not carry any load, any stress, any poundage or nothing. This bolt merely holds these two adapters together. Your load is carried in these two adapters here, which are pushed in and pressed into those two hanging brackets. There is no load at all. I would say that the bolt did not break. I have never seen any of them break, due to the fact that there is no load, no stress on this bolt itself. This bolt merely holds the two caps together. In this situation here, I would assume that this bolt had to come loose. Had this bolt not ever came loose, the nut from the bolt, these two adapters would not have left one another. If these two adapters would not leave one another, your Hendrickson Walking Beam would never get out of place.”

Mr. Margot then expressed the opinion that the bolt came out because it was not properly tightened when it was put in.

There are four of these bolts in the suspension system, two for each axle. All four bolts had been removed and replaced four and a half months prior to the accident when plaintiff returned the truck to Sam Broussard, Inc., while it was in warranty, for repairs due to defective bushings. The employees of Sam Broussard, Inc., did the repairs. To replace the bushings it was necessary to remove the bolts and then replace them. The accident happened when the left rear bolt came out. It is clear to us from Mr. Margot’s testimony that the bolt came loose because it had been improperly tightened when replaced.

Based on these facts and the opinion of the expert, the trial court was clearly wrong in finding that the accident was caused by a defect in the manufacture of the vehicle. The problem here was not a defect in the product; rather, it was negligent repair. The judgments against International Harvester in both the main and the third party demands were based on the trial court’s erroneous finding that there was a defect in the product. The judgments against this defendant must be reversed.

We are affirming the judgment against Sam Broussard, Inc. However, this defendant’s liability is not that of the seller who is liable because of a redhibitory defect in the thing sold, because we have found that there was no defect. This defendant’s liability is based on negligence.

Sam Broussard, Inc., as repairer, had a duty to the plaintiffs to perform the repair work in a non-negligent, prudent and skillful manner. La.Civil Code art. 2316; Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8 (La.App. 3rd Cir.1980). The breach of this duty is an action in tort and not one in redhibition. Ibid.

DAMAGES

Plaintiffs answered the appeal contending they should have been awarded attorney’s fees under the Civil Code articles dealing with redhibition. This contention would have had merit had we affirmed the judgment against the manufacturer based on redhibition. But with the reversal of that judgment, and our determination that the liability of the remaining defendant arises ex delicto and not under the redhibition articles of our civil code, there is no basis for the award of attorney’s fees.

As stated earlier, the plaintiffs in their answer to the appeal seek an increase in the award. It is not an issue in the case that the award might be excessive.

The trial judge awarded $8,644.79. Plaintiffs seek to have the award increased to the amount originally demanded, $99,-630.48, broken down as follows:

1) cost of repairs $14,880.48
2) loss of earnings from down time 64,750.00
3) mental anguish 20,000.00

Item 1), cost of repairs, was not at issue in the trial court because plaintiffs’ insurer filed a subrogation intervention and settled for all repairs before trial.

Item 3), mental anguish, is not a recoverable element of damages in this case. In a suit against a tortfeasor for mental anguish as a result of damage to property, recovery is permitted in but four instances, discussed in Meshell v. Insurance Company of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982) and Dugas v. St. Martin Parish Police Jury, 351 So.2d 271 (La.App. 3rd Cir.1977), writ denied 353 So.2d 1046 (La.1978). There is no evidence in the record to bring this case within any of the four instances in which an award of mental anguish would be permitted. We therefore find that plaintiff is not entitled to any award for this item.

The remaining question is whether the trial court’s award was manifestly insufficient to compensate plaintiffs for their proven loss of earnings from down time.

Although the award was not itemized in the judgment and the breakdown was unexplained in the trial court’s written reasons, it is apparent that the award was related to loss of earnings from down time. There is evidence in the record that plaintiffs’ net income from the trucking business in 1979, the year before this damage occurred, was $16,581. Allowing for a slight increase in projected profit for 1980, the amount of the award would be approximately 50 percent of a year’s profit. Whether this calculation entered into the trial court’s determination of the amount of the award is unknown, but these are our calculations for purposes of appellate review.

The accident occurred on January 29, 1980. The truck was finally repaired by Darby Motors four months later on May 31, 1980. Plaintiffs never put the truck back in service, however, due in part to their deteriorating financial condition but also because of their own insurer’s delay in paying for the repairs. In October of that year they voluntarily released the vehicle in exchange for the release of their indebtedness.

We cannot say under these circumstances that the trial court’s award equal to half a year’s income for loss of earnings was manifestly insufficient.

For the reasons assigned, the judgment in favor of Mr. and Mrs. Harry G. Landry, Jr., against Sam Broussard, Inc., for $8,644.79 is affirmed. The judgment in favor of these plaintiffs against International Harvester is reversed and judgment is now rendered in favor of International Harvester dismissing plaintiffs’ claims. The judgment in the third party demand in favor of Sam Broussard, Inc., against International Harvester is reversed and judgment is now rendered in favor of International Harvester dismissing the third party demand. Sam Broussard, Inc., will pay all costs at trial and on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    CHRYSLER CREDIT CORPORATION (M & M Dodge, Inc., Assignee), Plaintiff-Appellant, v. Eugene BROWN, Defendant-Appellee.
    No. 83-714.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Pharis & Pharis, James A. Pharis, Jr., Alexandria, for plaintiff-appellant.
    Thomas G. Wilson, Colfax, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   CUTRER, Judge.

This is an appeal by a creditor from a trial court judgment denying the creditor’s demand against its debtor for a deficiency judgment. The creditor, M & M Dodge, Inc. (M & M), is the assignee of the original plaintiff, Chrysler' Credit Corporation (Chrysler), which financed a pickup truck purchased by the debtor/defendant, Eugene Brown (Brown). Chrysler was the holder of a promissory note, secured by a chattel mortgage on the truck purchased by Brown. After a dispute between Brown and Chrysler over an increase in the monthly mortgage notes, Brown ceased making monthly payments. Several months later, Chrysler petitioned for and was granted executory process on the truck, resulting in its seizure and sale. Brown did not contest this action. Subsequently, Chrysler assigned its rights to M & M which brought the present action for a deficiency judgment, seeking the difference between the principal amount owed by Brown and the amount received from the judicial sale of the truck.

In denying the creditor’s claim for a deficiency judgment, the trial judge held that the mortgagee improperly raised Brown’s monthly notes and M & M was, therefore, precluded from seeking a deficiency judgment. M & M has appealed. For the reasons to follow, we reverse.

FACTS

The facts are basically undisputed. In July 1980, Brown purchased a new 1980 Dodge pickup truck from M & M Dodge in Alexandria. The major portion of the purchase price and other charges was financed by M & M which received a promissory note from Brown- in the amount of $5,993.28. This note was secured by a chattel mortgage in favor of M & M and Brown was to repay the loan at a rate of $166.48 per month for thirty-six months. The note and mortgage were subsequently assigned to the Chrysler Credit Corporation by M & M. The mortgage contains a confession of judgment by the debtor and allows the creditor to proceed by executory process should the debtor default on the conditions of the mortgage. Any default by the debtor would cause the entire balance to become immediately due. The debtor (Brown), in the event of execution by the creditor, also obligated himself to the payment of attorney’s fees to Chrysler in the amount of twenty-five percent of the ■balance owed.

The mortgage agreement contained a provision which required Brown to purchase collision insurance to protect the mortgagee’s interests and to deliver the insurance policy to the mortgagee. Further, the mortgagee was allowed to purchase insurance coverage and to add the cost of that coverage to Brown’s payments if Brown failed to acquire the necessary insurance or if he failed “to furnish satisfactory evidence thereof upon request.”

Brown’s insurance agent sent Chrysler (as mortgagee and holder of the promissory note) a memorandum copy of the insurance policy obtained by Brown when he purchased the truck. That policy was effective until November 7, 1980. Through the same insurance agency, Brown purchased another insurance policy effective from November 7, 1980 to November 7, 1981. Chrysler was properly listed as payee under the terms of the insurance policy. However, Chrysler was not sent that policy or any other physical evidence of the policy’s existence.

In April 1981, because of Brown’s delinquency in making his payments, the truck was first seized by Chrysler. Arrange-merits between the parties resulted in the truck’s return to Brown shortly thereafter.

In July 1981, Kent Wilkes, a collection supervisor for Chrysler, spoke with Brown via telephone and informed him that Chrysler had not received a copy of the required insurance coverage. Chrysler’s records only reflected the first policy, which had expired on November 7, 1980. When Brown informed Wilkes that he had acquired insurance, Wilkes requested Brown to send Chrysler a copy of the policy. Apparently, Brown also received a letter from Chrysler requesting a copy of the insurance policy. Chrysler never received a copy of this policy.

Testimony by Brown corroborated Wilkes’; the following dialogue transpired during the cross-examination of Brown:

“Q. Did you send him a policy?
“A. He asked for one and I told him I would give him the policy and the policy number. That policy number was taken from right that policy right here.
“Q. Did you ever send him the policy?
“A. I did not send him this policy.
“Q. Did you ever send him any policy?
“A. I didn send him no policy.
“Q. Did you ever request your insurance agency to send a memorandum policy or a copy of a policy to Chrysler Credit Corporation?
“A. Yes, sir.
“Q. Do you know if they did?
“A. I don’t know as a fact I wasn’t there.
“Q. Matter of fact Chrysler Credit told you they didn’t have a current policy or a policy that was in force, did they not?
“A. They told me that yes. ”

Failing to receive evidence of the insurance coverage claimed by Brown to be in effect, Chrysler, under the provisions of the mortgage, purchased the necessary insurance. Brown was notified of this action by a letter dated July 30, 1981, and, in August, he received new payment coupons indicating that his monthly payments were increased from $166.48 to $173.02 (a $6.54 increase) to cover the insurance premium.

Payments of $166.48 were made by Brown through September 1981. Brown refused to pay the new amount of $173.02 and stopped all of his payments entirely. Therefore, the last payment made to Chrysler by Brown was for the amount due September 25, 1981. Brown made no attempt to tender any further amounts to Chrysler.

On February 17, 1982, Chrysler filed a petition for executory process, because of Brown’s failure to pay his notes, claiming an amount due of $3,847.01 plus attorney’s fees of $961.75 (twenty-five percent of the principal), a total of $4,808.76. After Chrysler complied with the formalities of LSA-C.C.P. art. 2635, a writ of seizure and sale of the truck was granted, recognizing Chrysler’s claim to $4,808.76. The truck was seized on April 28, 1982, and was formally appraised as having a value of $2,800.00. Brown was timely served notice of the seizure but made no objections to the sale, either by injunction or suspensive appeal. See LSA-C.C.P. art. 2642.

At the subsequent judicial sale (held after appropriate delays and advertisements), Chrysler purchased the truck at its first offering for $1,867.00, two-thirds of the appraised value.

Subsequently, Chrysler assigned its interests in the note and mortgage back to M & M Dodge, the latter instituting this action for a deficiency judgment in June 1982. The amount claimed by M & M is $3,308.96 including attorney’s fees.

In his reasons for judgment, the trial judge opined that Chrysler had acted improperly in raising Brown’s monthly notes by $6.54 to pay for the insurance bought by Chrysler, since Brown already had the necessary insurance coverage. Finding that the creditor had previously wrongfully increased the debtor’s obligation, the trial court denied the deficiency judgment.

ISSUE

The primary issue on appeal is whether the creditor can be denied a deficiency judgment under these facts and circumstances.

INCREASING THE DEBTOR’S MONTHLY PAYMENTS

The trial court found that Chrysler acted wrongly by increasing Brown’s monthly payments from $166.48 to $173.02. We disagree. The mortgage note required Brown to obtain vehicle insurance which would protect the creditor’s interests. Further, the mortgage expressly required Brown to provide Chrysler with the insurance policy itself.

If Brown failed to acquire the necessary coverage or if he failed, upon Chrysler's request, to provide “satisfactory evidence” of that coverage, Chrysler was clearly entitled to obtain the required insurance and to increase Brown’s monthly notes by the amount needed to recompense Chrysler for the insurance purchased by it. Although Brown had obtained insurance, Chrysler had not been made aware of this. Its records indicated that Brown’s policy had expired on November 7, 1980.

The debtor, Brown, verbally (via telephone) informed Chrysler that he did have insurance and that he would send Chrysler the policy. The creditor, Chrysler, requested a copy of the policy. In fact, Brown admittedly never sent Chrysler the policy but assumed his insurance agent had. Thus, Chrysler never received satisfactory evidence that Brown had obtained the necessary insurance. Under these circumstances the trial court erred in finding that Chrysler had acted improperly in raising Brown’s monthly note.

DEFICIENCY JUDGMENT

The trial court cited four cases to support its conclusion. We have examined those decisions and find that they are not applicable to the instant case.

A deficiency judgment is available to a creditor for any deficiency due on a debt pertaining to mortgaged property after the distribution of the proceeds of a judicial sale of that property, if the property was sold under an executory proceeding after following the required formalities, including appraisal. LSA-C.C.P. articles 2771, 2723; LSA-R.S. 13:4106.

Under an executory proceeding, the defendant/debtor may contest the order of seizure and sale either by an injunction proceeding or a suspensive appeal. Hood Motor Company, Inc. v. Lawrence, 320 So.2d 111 (La.1975), on remand, 334 So.2d 460 (La.App. 1st Cir.1976), writ den., 338 So.2d 288 (La.1976). If the creditor seeks to collect more than is lawfully due him, the debtor may enjoin this action during the executory proceeding. Spiro v. Richardson, 240 La. 192, 121 So.2d 741 (1960); Sample v. Elliott, 155 La. 941, 99 So. 705 (La.1924).

In the instant case, Brown did not seek to enjoin the seizure and sale nor did he appeal suspensively therefrom. He raised no objection to the seizure and sale. He pleaded his dispute with Chrysler as a defense to the deficiency suit.

Defenses to a deficiency judgment are limited to the lack of proper appraisal or to fundamental defects which would render the executory process null. Executory proceedings are fundamentally defective when the creditor has failed to present properly authenticated evidence, or to comply with the requisite formalities. League Central Credit Union v. Montgomery, 207 So.2d 762 (La.1968); Bank of St. Charles v. Great So. Coach, 424 So.2d 462 (La.App. 5th Cir.1982); Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La.App. 1st Cir.1976).

The issue between the creditor and Brown over the proper amount of the monthly payment should have been raised in the executory process proceeding. This dispute in question does not present a defect that is fundamental so as to render the executory process null and is not a defense to this subsequent suit for a deficiency judgment. Thus, this defense cannot be recognized and the trial court judgment must be reversed.

For these reasons, the judgment of the trial court is reversed and set aside. It is ordered that judgment is hereby rendered in favor of M & M Dodge, Inc. and against Eugene Brown for the sum of $3,308.96, plus legal interest from the date of judicial demand until paid. Eugene Brown is to pay all costs of the trial court and for this appeal.

REVERSED AND RENDERED.

      . Interestingly, Brown testified that he did not know whether he had reinsured the truck after the lapse of its insurance in November 1981. He was unsure as to whether he had any coverage on the truck when it was seized in April 1982.

      . Katz v. Judice, 252 So.2d 532 (La.App. 4th Cir.1971), writ den., 259 La. 461, 254 So.2d 461 (La.1971); Blodgett Const. Co. v. Board of Com'rs, 153 La. 623, 96 So. 281 (1923); Alexandria & W. Ry. Co. v. Long Pine Lumber Co., 152 La. 399, 93 So. 199 (1922); People's Bank v. Cage, 40 La.Ann. 138, 3 So. 721 (1888).


author: STOKER, Judge.

text:
    Joseph LEBRUM, Plaintiff-Appellee, v. M.D. HILL, Defendant-Appellant.
    No. 83-722.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Kelly & Salim, Michael I. Murphy, Natch-itoches, for defendant-appellant.
    Luster & Conine, John W. Luster, Natch-itoches, for plaintiff-appellee.
    Before DOMENGEAUX, C.J., and FOR-ET and STOKER, JJ.
   STOKER, Judge.

Defendant-lessee, M.D. Hill, appeals from a judgment against him and in favor of plaintiff-lessor, Joseph LeBrum, which dissolved the lease between Mr. Hill and Mr. LeBrum and awarded to Mr. LeBrum $3600 in “damages” and $750 in attorney’s fees. The $3600 award consists of $1500 representing past due rentals, and $2100 representing either rentals due for the remainder of the lease term or liquidated damages.

Mr. Hill appeals, claiming the trial court erred in awarding rent for the entire term of the lease and in rescinding the lease as of the date of trial rather than May 17, 1982 as prayed for by Mr. LeBrum. Mr. Hill also objects to the award of attorney’s fees and asserts the lease should be rescinded due to Mr. LeBrum’s failure to comply with his obligation to repair the leased premises. We reverse that portion of the judgment awarding $2100 as rent for the remainder of the lease or liquidated damages.

FACTS

On December 29, 1981, Mr. Hill entered into an agreement with Mr. LeBrum to lease from him property called the Campti Liquor Store. The lease term was for one year, beginning January 1, 1982 and ending December 31, 1982, and the monthly rental was agreed upon at $300 per month. No rental payments were ever made by Mr. Hill, and on May 24, 1982, Mr. LeBrum filed suit seeking a rescission of the lease as of May 17, 1982, past due rent of $1500, damages in the amount of $2100, and attorney’s fees. A writ of sequestration was issued at this time directing the sheriff to seize and hold all of Mr. Hill’s movable property on the premises. Upon being served with this suit Mr. Hill turned the keys to the property over to the sheriff.

Mr. Hill first filed a general denial to the suit, and subsequently filed an amended and supplemental answer in which he asked that the lease be declared null and void due to Mr. LeBrum’s failure to comply with his duty to repair certain items on the premises. Trial of the matter was held on January 18, 1983, and in his reasons for judgment the trial judge stated that the lease contract had never been rescinded and found that rental was due for the entire twelve months of the lease. After his motion for a new trial was denied, Mr. Hill filed this appeal.

LESSOR’S DUTY TO REPAIR

On appeal Mr. Hill asserts that certain repairs which Mr. LeBrum agreed to make were never completed; therefore, a business could not be operated on the premises and the lease should be considered as never having come into effect. The provision of the lease which Mr. Hill relies on for this assertion reads:

“With the exception initially of the Lessor repairing the ceiling tile, the bathroom fixtures, and the outside aluminum siding, no repairs shall be due Lessee by Lessor except to the roof and such as may be rendered necessary by fire or other casualty, not occasioned by Lessee’s fault or negligence.”

Mr. Hill asserts that the above quoted provision constitutes a suspensive condition, and that the lease was to have no effect until the repairs were made. We disagree. The lease term is clearly defined in the lease, and there is no provision in the lease indicating that the parties contemplated postponing the commencement of the lease term. The lease also provides that “Lessor warrants that the leased premises are in good condition. Lessee accepts them in such condition....” In signing the lease Mr. Hill acknowledged that the premises were in an acceptable condition, subject to the repairs specifically required from Mr. LeBrum under the terms previously quoted.

There is some evidence in the record that Mr. LeBrum made good faith attempts to make the repairs required by him, but was unable to do so due to Mr. Hill’s lack of cooperation. In any event, Mr. Hill was not justified in his refusal to pay rent when due on the ground that Mr. LeBrum had not accomplished the repairs. LSA-C.C. art. 2694 and Lassen v. Otalvaro, 391 So.2d 1378 (La.App. 4th Cir.1980). Mr. Hill was only entitled to have the repairs made himself and deduct the price from the rent due.

DATE OF RESCISSION AND AMOUNT DUE BY LESSEE

In his reasons for judgment the trial judge stated that the lease had not been rescinded as of the time of trial of the matter, but that it had probably expired under its own terms on December 31, 1982. He indicated that there would be judgment rescinding the lease, and the judgment dated January 26,1983 did order that the lease be canceled. In regard to the existence of the lease and damages due, the trial judge stated further:

“Therefore, the three hundred dollars ($300.00) per month came due for the entire twelve months, making a total of thirty-six hundred dollars ($3,600.00) due. And the Court is not inclined to give liquidated damages and the full rent. So, whether we call them liquidated damages or monthly rent, the amount of thirty-six hundred dollars is the amount that will be due.”

Under the circumstances of this case, we find that the trial judge was clearly wrong in finding that the lease had not been rescinded prior to trial. For reasons set out below, we find that the lease was terminated in May of 1982, and no rentals or liquidated damages were due after that time.

Cancellation of leases is subject to judicial control according to the circumstances. Farmers Gas Company v. LaHaye, 195 So.2d 329 (La.App. 3rd Cir.1967) and Lemoine v. Devillier, 189 So.2d 694 (La.App. 3rd Cir.1966), writ denied, 249 La. 751, 190 So.2d 913 (1966). In Lemoine v. Devillier, supra, termination of the lease was found to have been effective as of the date the lessee answered the lessor’s suit for termination also requesting termination. The court in Maggio v. Price, 1 So.2d 404 (La.App. 1st Cir.1941), found that the lease was canceled when the sheriff took possession of the premises under a writ of provisional seizure. At that point the lessee surrendered the keys to the sheriff and no longer had free access to the premises.

In the present case Mr. Hill surrendered the keys to the property to the sheriff when served with this suit on May 24,1982. Mr. LeBrum stated at trial that he has been in a position to lease the building since the time of the seizure, and did in fact lease the building again on August 1 for a few months. Under these circumstances, we find that the lease was canceled as of the date of seizure, and Mr. LeBrum is entitled to past due rents only through the month in which the seizure was made, May of 1982. The amount of these past due rents is $1500.

We must now consider whether Mr. LeB-rum is entitled to the remaining $2100 of the judgment either as liquidated damages or future rentals. We find that he is not entitled to this amount under either theory.

The portion of the lease under which Mr. LeBrum is entitled to proceed provides:

“SHOULD the Lessee at any time violate any of the conditions of this lease, or discontinue the use of the premises for the purpose for which they are rented, or fail to pay the rent, ... then, at the option of the Lessor, the rent for the whole unexpired term if [sic] this lease shall at once become due and exigible; and Lessor shall have the further option [1] to at once demand the entire rent for the whole term, or [2] to immediately cancel this lease, or [3] to proceed for the remining [sic] installments, all without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notice to vacate the premises.”

Mr. Hill argues that this lease provision is ambiguous because it differs from the lease agreement appearing in a notarial manual from which this lease was purportedly taken. There was no evidence at trial that any particular lease form was meant to be followed by the parties in drawing up this particular lease. We do not find any apparent ambiguity in the provisions of the lease in question. Similar lease provisions were considered by the court in Wilson v. G. Brian Corporation, 244 La. 433, 152 So.2d 550 (1963). The only difference in the lease provisions before us here and those before the court in Wilson is in regard to the third option available to the lessor. In the lease before us the lessor’s third option was to proceed for the remaining installments, but in Wilson the third option allowed the lessor “to proceed for past due installments only, reserving its right to later proceed for the remaining installments.” The court in Wilson determined that options numbered 1 and 3 contemplated a continuation of the lease, but the second option contemplated immediate dissolution. We find that the same construction is applicable to the provisions under consideration here.

Having determined that the lease was dissolved upon seizure of the property by the sheriff, it is clear that Mr. LeBrum is not entitled to rent for the unexpired term of the lease. He would be entitled to that rent only if Mr. Hill had retained the right to exercise full control and dominion over the premises. Mr. LeBrum’s own admission at trial that he was in a position to rent the property after seizure shows that Mr. Hill no longer had use of the premises. See Maggio v. Price, supra.

In his brief on appeal, Mr. LeBrum argues in the alternative that he should be entitled to the $2100 as liquidated damages. We disagree. The only provision for liquidated damages in the lease reads as follows:

“AT the expiration of this lease or at its termination for other causes, Lessee is to immediately surrender possession by actual delivery of all keys to Lessor. Should Lessee fail to deliver such possession, he consents to pay as liquidated damages five times the rent per day for each day of his failure to do so, with attorney’s fees and all costs.”

This provision is not applicable since Mr. Hill immediately surrendered the keys to the sheriff upon service of the suit. The lease does provide that “Lessee [is] to remain responsible for all damages or losses suffered by Lessor.” No damages or losses were proved at trial. Mr. LeBrum did not claim to have been unable to rent the premises after Mr. Hill’s default on the lease, but in fact admitted that he rented the premises for at least a portion of the remaining lease term. Under the circumstances, we find that Mr. LeBrum is entitled to nothing more than the past due rent.

ATTORNEY’S FEES

Because Mr. LeBrum was required to employ an attorney to protect his rights under the lease, he is entitled to a reasonable attorney’s fee as provided in the lease. The trial court awarded to Mr. LeBrum attorney’s fees in the amount of $750. We find that that amount should be reduced to $500 in light of our determination that Mr. LeBrum is not entitled to the entire amount awarded by the trial court.

CONCLUSION

For the above reasons, the judgment of the trial court is amended to reduce the award of $3600 to $1500, and to reduce the award of attorney’s fees from $750 to $500. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellee, Joseph LeBrum.

AMENDED AND AFFIRMED AS AMENDED.


author: FORET, Judge.

text:
    Simon COMEAUX, Plaintiff-Appellant, v. Pearl DAVENPORT, et al., Defendants-Appellees.
    No. 83-729.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.

      Alvarez T. Ferrouillet, Jr., New Orleans, for plaintiff-appellant.
    Poteet & Landry, Greg Poteet, Lafayette, for defendants-appellees.
    Dorothy D. Wells, Revordia J. Viney, in pro per.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

This suit involves a dispute over the possession and ownership of a tract of land located in Vermilion Parish. Plaintiff, Simon Comeaux, filed a petition cumulating a possessory action and an action for declaratory judgment recognizing his ownership in the disputed tract. Named defendants were Pearl Davenport, Pinkey (Margret) Davenport, Chester Davenport, Theophilus Davenport, their heirs, successors and assigns. The trial court rendered judgment in favor of defendants, dismissing all of plaintiffs demands. From that judgment, plaintiff has perfected this appeal.

This appeal raises two issues:

(1) Whether plaintiff waived his right to the possessory action by filing a peti-tory action, and
(2) Whether plaintiff ceased to possess as owner by virtue of having signed a predial lease of the subject property.

FACTS

The property which is the object of this suit is known as Lot 7 and is described as:

THAT CERTAIN TRACT OR PARCEL OF LAND comprising eight (8) acres, more or less, located in the N/2 of the NE/4 of Section 19, Township 12 South, Range 4 East, being described as lot 7 as per plat made by Ernest Montagne, Esquire, surveyor on January 11, 1916, and recorded in the conveyance records of the Parish of Vermilion, original act # 30786, C.O.B. 65, folio 423, said plat being made a part hereof by reference for all purposes; said eight (8) acres having been acquired by Act of Partition dated February 19, 1918, before James R. Kitchell, Notary Public, and being part of that certain eighty (80) acre tract formerly belonging to the Estate of Sarah Joiner, wife of and Francis Jones.

As stated in the description, Lot 7 was acquired by the named defendants as a result of a partition of an eighty-acre tract which occurred in February of 1918. In 1958 and again in 1962, defendants, Pinkey (Margret) Davenport and Pearl Davenport, granted mineral leases on Lot 7 and these leases were recorded in the public records. Defendant, Theophilus Davenport, granted a mineral lease on Lot 7 in 1958, and that lease was also recorded.

Plaintiff went into possession of Lot 7 in November of 1952. At that time, he fenced in the tract and began using it for grazing cattle. He also began paying the property taxes. Since 1952, plaintiff has maintained his possession of the property and continued to pay the taxes. At the time of trial (February 24, 1983), plaintiff had possessed Lot 7 for over thirty years.

The only possible defect in plaintiffs possession is a predial lease which plaintiff signed in 1975. The lease document sets out a lease with a one-year term between Theophilus Davenport and Pinkey (Margret) Davenport as lessors, and plaintiff as lessee. The lease limits the use of the property to pasturage and cultivation of hay crops, and provides that the lessors shall have free access to the premises for the purpose of observing lessee’s actions and his crops. The lease also imposes a duty on lessee to maintain the premises. Additionally, the lease reserves the lessor’s right to sell the premises or to conduct mineral exploration on the property.

DID PLAINTIFF FILE A PETITORY ACTION?

Plaintiff commenced this action by filing a petition styled “Possessory Action and Petition in Suit for Declaratory Judgment” in which plaintiff alleged that he had the right to possess the disputed property and was entitled to the ownership of the tract as a result of thirty years acquisitive prescription. Plaintiff further averred that he was “entitled to a judgment declaring him to be the true, sole, and lawful owner of said parcel”. The petition did not include a prayer for a declaratory judgment.

In their brief, defendants contend that in filing the above described petition, plaintiff, in effect, cumulated a possessory action with the petitory action and, thereby, waived the possessory action. See LSA-C. C.P. Art. 3657. Specifically, defendants claim that by pleading thirty years acquisitive prescription, plaintiff converted his possessory action into a petitory action. Contrary to defendants’ contention, it is clear that plaintiff's averments concerning ownership are intended to form the basis, not of a petitory action, but of an action for a declaratory judgment. This is plainly indicated by the designation of the pleading as a “Suit for Declaratory Judgment”.

We feel that a fair reading of plaintiff’s petition leads to the conclusion that plaintiff filed a possessory action and nothing more. Although plaintiff attempted to cumulate an action for a declaratory judgment with his possessory action, he only prayed for the relief he would be entitled to as a successful litigant in a possessory action. Normally, the failure to pray for specific relief does not warrant a denial of that relief if the petitioner is entitled to it under his whole pleadings. LSA-C.C.P. Art. 862; Poynter v. Fidelity & Casualty Company of New York, 140 So.2d 42 (La.App. 3 Cir.1962), cert. denied (La.1962). In this case, however, the specific relief which plaintiff prayed for would be inconsistent with a declaratory judgment recognizing his ownership in the disputed tract. In his petition, plaintiff specifically prayed that the court order defendants to assert their adverse claims of ownership within a certain period of time, not to exceed sixty days. A declaratory judgment recognizing plaintiffs ownership would be inconsistent with such an order. Faced with this sort of inconsistency, we will grant plaintiff what he specifically requests rather than what we might surmise he seeks. Accordingly, we conclude that plaintiff has filed a pos-sessory action, and nothing more.

DID PLAINTIFF BECOME A PRECARIOUS POSSESSOR?

The question of whether plaintiff ceased to possess Lot 7 as owner hinges on the validity of the predial lease. If the lease is not valid, then plaintiff never became a precarious possessor, but continued to possess as owner. One is presumed to intend to possess as owner unless his possession began as a precarious possession. LSA-C.C. Art. 3427.

Plaintiff testified that in 1975, Theophi-lus Davenport, a distant relative of his, visited him and requested that he sign some papers. Plaintiff consulted an attorney concerning this, apparently informally, and without showing the attorney a copy of the lease document which plaintiff did not have in his possession. Plaintiff testified that this attorney told him that whatever the document was, signing it could not “hurt him”. Plaintiff further testified that he went to the office of an attorney engaged by Theophilus Davenport and signed the lease document. Plaintiff, who, although he can sign his name, cannot read or write, testified that the document was neither read nor explained to him and that the only portion of the document he saw was the last page which he signed and which only contained the paragraph and a place for his signature and the signature of a notary and witnesses.

We note that the attorney who prepared the lease may not have been aware that plaintiff could not read and write since plaintiff could sign his name. The attorney testified regarding plaintiffs signing the lease as follows:

“Q. Is it your practice to present a document of this kind, which purports to be a lease, to a person and just ask him to sign the signature page without explaining anything about it?
A. It is not. I would have to say the probabilities are I told the man what it was and explained it, you know.”

We do not think that the attorney’s testimony regarding “the probabilities” of his having explained the lease to plaintiff strongly contradicts plaintiffs testimony regarding his lack of knowledge as to what he signed. For that reason, we have serious misgivings regarding the validity of plaintiffs consent. The events surrounding the signing of the lease suggest that at the very least, there is some doubt as to whether plaintiff validly consented to the lease. However, we find the lease defective for other reasons.

The lease document indicates that the parties to the lease are Theophilus Davenport and Pinkey (Margret) Davenport as lessors, and plaintiff as lessee. Although the lease document was signed by Theophi-lus Davenport and plaintiff, it was never signed by Pinkey (Margret) Davenport. Testimony given at trial indicated that Pin-key Davenport had refused to sign the lease document. We think that the failure of Pinkey Davenport to give her assent to the lease invalidated it.

It is clear from the lease document that Pinkey Davenport was intended to be a party to the lease. Her failure to assent to the lease rendered it invalid. The consent of the parties is necessary to the validity of a contract. LSA-C.C. Articles 1766, 1779.

It might be suggested that the contract was valid as a contract between plaintiff and Theophilus Davenport. We find, however, that the contract was invalid in toto. Pinkey Davenport’s failure to assent to the contract substantially altered the agreement. Error as to the object of a contract will invalidate the contract if it bears on the substance or a substantial quality of the object. LSA-C.C. Art. 1842.

Although one co-owner may lease the property in which he holds an interest, the lessee may not exclude the co-owners who are not parties to the lease, from the property. Pettus v. Atchafalaya Wildlife Protective Society, 351 So.2d 790 (La.App. 1 Cir.1977). Therefore, Pinkey Davenport’s failure to assent to the lease meant that plaintiff would have less rights as lessee than he would otherwise have had since Pinkey Davenport would have continued to have every right to use the property and plaintiff would have no right to exclude her.

Further evidence that no agreement was ever reached and that the lease never took effect is provided by the fact that plaintiff never paid the rent provided for in the lease, nor did any of the defendants make any demand for it. We conclude that the lease was never valid, and, therefore, that plaintiff has always possessed Lot 7 as owner.

Since plaintiff had been in possession of Lot 7 in excess of one year before he filed the possessory action, and since a continuing legal disturbance existed in the form of recorded mineral leases executed by defendants, plaintiff was entitled to prevail in his possessory action. LSA-C.C. Art. 3434; LSA-C.C.P. Arts. 3658, 3659.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and judgment is hereby rendered in favor of plaintiff.

Accordingly, it is now:

ORDERED, ADJUDGED AND DECREED that plaintiff's right to the possession of the immovable property described as:

That certain tract or parcel of land comprising eight (8) acres, more or less, located in the N/2 of the NE/4 of Section 19, Township 12 South, Range 4 East, being described as Lot 7 as per plat made by Ernest Montagne, Esquire, surveyor, on January 11, 1916, and recorded in the conveyance records of the Parish of Vermilion, original act # 30786, C.O.B. 65, folio 423, said plat being made a part hereof by reference for all purposes; said eight (8) acres having been acquired by Act of Partition dated February 19, 1918, before James R. Kitchell, Notary Public, and being part of that certain eighty (80) acre tract formerly belonging to the Estates of Sarah Joiner and Francois Jones.

be recognized and that he be maintained in possession thereof.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants, Pearl Davenport, Pinkey (Margret) Davenport, Chester Davenport, Theophilus Davenport, their heirs, successors and assigns, assert their adverse claim of ownership of the immovable property described above within sixty days after the date on which this judgment becomes executory or be precluded thereafter from asserting the ownership thereof.

All costs of this appeal and at trial level are assessed against defendants-appellees.

REVERSED AND RENDERED.

       Sometimes spelled “Theopilus”.

      . The named defendants in this case are all apparently dead and their heirs or assigns were unknown. In accordance with LSA-C.C.P. Art. 5091, et seq., an attorney was appointed to represent them. This attorney was able to locate two of the descendants of the named defendants: Dorothy Davenport Wells, granddaughter of Theophilus Davenport, residing in New Orleans, Louisiana, and Revordia Jones Viney, granddaughter of Margret Davenport, residing in Beaumont, Texas. Following the trial of this matter, the court-appointed attorney withdrew as counsel of record with the trial court’s permission. All further notices of appeal were to be sent to the two above named parties. A brief has been filed on defendants’ behalf by John G. Poteet, Jr., of Lafayette, Louisiana.


author: DOUCET, Judge.

text:
    BARNEY’S FAMILY MARKET, INC., Plaintiff-Appellant, v. AVOYELLES PARISH POLICE JURY, Defendant-Appellee.
    No. 83-761.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for plaintiff-appellant.
    Eddie Knoll, Marksville, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

Plaintiff brought this action to obtain a writ of mandamus directed to the Sheriff of the Parish of Avoyelles and to the Avo-yelles Parish Police Jury ordering the issuance of a permit to Barney’s Family Market, Inc. to sell beer with an alcohol content of less than 3.2% in Ward 1 of Avoyelles Parish. From an adverse judgment, plaintiff appeals.

On February 22,1983, plaintiff applied to the Avoyelles Parish Police Jury to obtain a permit to sell beer at Barney’s Family Market, located in Ward 1 of Avoyelles Parish.

At its regular meeting on Tuesday, March 8, 1983, the Avoyelles Parish Police Jury denied the application on the basis of an ordinance passed following a local option election held on January 29, 1952. The ordinance relied upon by the Avoyelles Parish Police Jury was adopted after the local option election wherein three propositions were voted upon, to wit:

(1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by volume, be permitted in Ward One (1), Avoyelles Parish, Louisiana.
(2) Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume for consumption on the premises, be permitted in Ward One (1), Avoyelles Parish, Louisiana.
(3) Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume by package only and not for consumption on the premises be permitted in Ward One (1), Avoyelles Parish, Louisiana.

The voters voted against the propositions and an ordinance was enacted prohibiting the sale of any alcoholic beverages and licensing of businesses engaged therein.

Following defendant’s denial of plaintiffs application, suit was filed wherein plaintiff questioned whether the three propositions submitted to the voters on January 29,1952 prohibited the sale of beer with an alcoholic content less than 3.2% by volume.

The application submitted by plaintiff requested “a beer permit ... to sell alcoholic beverages containing more than six percen-tum (6%) of alcohol by volume”, however, plaintiffs petition seeks a permit to sell beer of an alcoholic content of 3.2%. Defendant contested plaintiffs petition emphasizing its alleged authority to control 3.2% beer, not on the grounds plaintiffs petition for mandamus was premature due to plaintiffs failure to specifically apply for a 3.2% permit. The trial court dismissed plaintiffs petition for a writ of mandamus.

Plaintiff appeals, alleging the decision of the trial court is contrary to law.

It is well established that the State of Louisiana, through its police power, has the preemptive right to regulate the sale and distribution of alcoholic beverages. State v. Gardner, 198 La. 861, 5 So.2d 132 (1941), City of Bogalusa v. Gullotta, 181 La. 159, 159 So. 309 (1935). The State may regulate the sale of alcoholic beverages under the police power so long as the regulatory laws are for a reasonable purpose. Nomey v. State of Louisiana, 315 So.2d 709 (La.1975); Nomey v. Jackson Parish Police Jury, 343 So.2d 315 (La.App. 2d Cir.1977).

Although the power to regulate traffic in alcoholic beverages is vested in the State of Louisiana, the legislature may delegate such power to political subdivisions of this state. Regulations of subdivisions of this state enacted pursuant to the authority delegated by the state cannot exceed the grant of authority and must fall when they conflict with state law.

In 1950, the Legislature included the local option provision in Revised Statutes 26:581, et seq. Revised Statute 26:588, as adopted in 1950, prohibited the adoption of any ordinance, which would prohibit the sale or use of alcoholic beverages continuing not more than three and two-tenths percent alcohol by weight. The Legislature refused to provide to local governing bodies the right to prohibit the sale of 3.2% beer.

It was obvious to the Avoyelles Parish Police Jury in 1952, when the local option election was called, that prohibiting the sale of 3.2% beer could not be done because of the provisions of R.S. 26:588. Accordingly, the three propositions submitted to the voters did not present for their determination whether to prohibit the sale of alcoholic beverages of 3.2% or less of alcohol by weight.

However, the ordinance adopted by the Avoyelles Parish Police Jury on February 13, 1952 purports to prohibit the sale of alcoholic beverages having an alcohol content of less than three and two-tenths percent alcohol by weight, i.e., beer.

Louisiana R.S. 26:588, which prohibited local prohibition of beverages containing 3.2 percent alcohol or less, was repealed in 1980. Since 1980, the Louisiana Legislature has extended to local governing authorities the power to regulate the sale, storage and distribution of all alcoholic beverages, regardless of the percentage of alcohol.

Aside from the repeal of La.R.S. 26:588 in 1980, defendant contends that the Avo-yelles Parish Police Jury had a special delegation of authority by the State to control the sale of all alcoholic beverages in Ward One in 1952, regardless of percentum of alcohol contained. In 1974 the Louisiana Legislature enacted La.R.S. 26:601 (now repealed) which specifically listed Ward One, Avoyelles Parish, Louisiana, as excluded from the provisions of Louisiana R.S. 26:588. However, La.R.S. 26:588 was held unconstitutional in Tolar v. State, 315 So.2d 22 (La.1975).

In addressing La.R.S. 26:588, which provided that beverages of 3.2% alcohol could not be prohibited except where such prohibition was in effect prior to 1948, the court in Tolar, supra, noted, inter alia, that the legislature is incapable of reviving otherwise invalid local option liquor ordinances.

With regard to appellant’s contention that the Avoyelles Parish Police Jury is without authority to regulate alcoholic beverages of 3.2 percent, we note a similar argument was rejected in Rapides Merchants Association v. Rapides Parish, 421 So.2d 955 (La.App. 3rd Cir.1982) writ denied 426 So.2d 174 (La.1983), wherein this court observed:

the right of local governments to control the sale of 3.2 beer has had a long and interesting history in both the legislative and judicial branches of government. Since 1948 by Act No. 372 of the 1948 Regular Session of the Louisiana Legislature,4 the State has attempted to reserve unto itself the right, at least in part, to regulate the sale, manufacture, production, etc., of 3.2 beer. Since that time Courts of this State have universally held that Section 5885 prohibited local governing bodies from regulating beverages containing 3.2 percent alcohol by weight or less.
State v. Sissons, 292 So.2d 523 (La.1974); Harper v. State, Department of Revenue, 328 So.2d 669 (La.1976); Helverson v. Rapides Parish Police Jury, 391 So.2d 516 (La.App. 3rd Cir.1980), writ denied 396 So.2d 1325 (La.1981).
By Act No. 663 of the 1980 Regular Session of the Louisiana Legislature, the Legislature repealed Section 588 in its entirety, and thereby, in our opinion, obviously intended to open the door to local political subdivisions to regulate and/or prohibit beverages containing under 3.2 percent alcohol. In short, by repealing Section 588 the Legislature chose to delegate its right to regulate or control said beverages to the local governing bodies. Consequently, plaintiffs claim that Ordinance X is ultra vires because it purports to regulate beverages containing 3.2 percent alcohol and less is without merit, [footnotes excluded]

In the Rapides case we were concerned with the validity of an ordinance enacted in 1981. Here, defendants rely on ordinances enacted in 1952, long before the 1980 legislation repealing Section 588 and allowing political subdivisions to regulate 3.2% beer. At the time the local ordinances relied upon were passed, the legislature had enacted local option laws reserving unto the State the right to regulate 3.2% beer. Section 2 of Act 2 of the Extraordinary Session of 1950, enacting La.R.S. 26:581-596. Section 588 prohibited local governing bodies from regulating alcoholic beverages of 3.2 percent or less. Thus the Avoyelles Parish ordinance is invalid insofar as it purports to prohibit 3.2% beer in contravention of Section 588 whereby the State decided to regulate such alcoholic beverages exclusively rather than delegate its police powers to political subdivisions. Furthermore, the local option election did not address 3.2% beer, thus the police jury exceeded its authority in enacting an ordinance which forbid such beverages.

Thus the question arises whether mandamus is proper where plaintiff’s petition seeks a 3.2% permit, the plaintiff has never applied for a 3.2% permit and the ordinance purports to ban the issuance of such permits.

Mandamus is an extraordinary remedy and will not be granted in doubtful cases. Smith v. Dunn, 263 La. 599, 268 So.2d 670 (1972); State v. City of Shreveport, 231 La. 840, 93 So.2d 187 (1957). It is not an appropriate remedy where the party seeking it has an adequate remedy by ordinary means. State v. Police Jury of Rapides Parish, 131 So.2d 623 (La.App. 3rd Cir.1961). Ordinarily, one must first exhaust other available remedies before seeking mandamus. Walker v. Allen, 281 So.2d 693 (La.1973).

A similar situation was presented in Clareo Pipeline v. Parish of East Baton Rouge, 383 So.2d 1296 (La.App. 1st Cir. 1980), cert. dismissed as moot, 386 So.2d 355 (La.1980), where the plaintiff, having reason to believe the building permit would not be granted, did not apply for a permit but instead petitioned for a writ of mandamus. The court found issuance of the writ of mandamus to be improper noting that submission of proper forms was a prerequisite to resorting to mandamus relief. A comparable situation was presented in State v. Jones, 350 So.2d 1164 (La.1977) where the application for writ of mandamus was deemed premature in view of the applicant’s failure to comply with pre-trial procedure rules. See also: Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982). In the present case, plaintiff has not complied with regulations and submitted an application for 3.2% beer. Accordingly, mandamus is not an available remedy.

The Police Jury also invoked its Ordinance 6, adopted on March 1, 1934 as grounds for denial of plaintiff’s application. That ordinance prohibited sale of any alcoholic beverages within one-half (½) mile of any church or school.

The evidence indicated there are two churches located within one-half mile of Barney’s Family Market, Inc., both being about three-tenths mile away.

We note that La.R.S. 26:80 and R.S. 26:280 limit the authority of police juries in regard to restricting permits where the applicant’s business is within 300 feet of a church or school. Outside of municipalities, parish ordinances may extend the prohibition to a distance of 500 feet. Police jurors may not extend the prohibition of sales of alcoholic beverages beyond the distance of 500 feet. Attorney General’s Opinion, July 12, 1973. In Little Giant Food Stores v. State, 416 So.2d 128 (La.App. 2d Cir.1982), the court, in construing R.S. 26:280(C), stated the language “shows that the legislature intended to make state and local regulation of the places from which beverages of low alcoholic content may be sold consistent”.

In Shop-A-Lott, Inc. v. Town of Many, 427 So.2d 514 (La.App. 3rd Cir.1983) the defendant enacted an ordinance which, via its method of measurement, sought to extend the prohibition beyond 300 feet. This court held, inter alia, that defendant failed to establish that its regulations, more stringent than those set forth in the statute, were required for. protection of the public welfare of the town’s citizens. Accordingly, defendant was ordered to issue a permit to plaintiff.

Here, the premises are not within the distance permitted by statute. Thus, the Avoyelles Parish Police Jury exceeded the authority granted it by the Legislature.

In conclusion, while both ordinances exceed local authority, the plaintiff has not complied with permit procedures, hence mandamus is not available.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

CUTRER and YELVERTON, JJ., concur.

      . R.S. 26:80 provides in pertinent part:
      § 80. Location of business limited
      A. No permit shall be granted under this Chapter in contravention of any municipal or parish ordinances adopted pursuant to the zoning laws of the state.
      B. No permit shall be issued by the board or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.
      However, in any subdivision where saloons are prohibited, but package sales of liquor are permitted, Class B package liquor permits may be issued in combination with Class A retail beer permits.
      C. Governing authorities of parishes and municipalities may enact ordinances to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish or municipal playground or of a building used exclusively as a regular church or synagogue, public library, or school, except a school for business education conducted as a business college. No state or local permit shall be issued in contravention of any such ordinance.
      In municipalities the prohibition may not extend more than three hundred feet from the church, synagogue, library, school, or playground. The measurement of this distance shall be made from the nearest point of the property line of the church, synagogue, library, playground, or school to the nearest point of the property line of the premises to be licensed.
      Outside of municipalities, parish ordinances may extend the prohibition to a distance of five hundred feet of the church, synagogue, library, school, or playground. The measurement of this distance shall be made in the same manner as the measurement is made in municipalities.
      The prohibition in this Subsection does not apply to any premises which are maintained as a bona fide hotel, railway car, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.
      A A A A A A

      . § 280. Location of business limited
      A. No permit shall be granted under this Chapter in contravention of any municipal ordinance adopted pursuant to the zoning laws of the state.
      B. No permit shall be issued by state or local authorities to authorize the conduct of business in any subdivision of the state wherein that business has been prohibited by referendum vote.
      C. When prohibited by municipal or parish ordinance no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school. In municipalities and in unincorporated areas which are divided into subdivisions with streets, blocks, sidewalks, etc., this distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school to the nearest point of the premises to be licensed.
      Police juries may enact ordinances extending the distances between licensed premises and the property line of churches, synagogues, public library, or schools to five hundred feet.
      The provisions of this section shall not apply to registered pharmacists or licensed drug stores, licensed under the laws of the state of Louisiana who are permitted to sell alcoholic beverages by prescription only, either of high or low alcoholic content under Chapter 1 or Chapter 2 of Title 26.
      Should any premises licensed to deal in beverages of low alcoholic content be located within a distance less than that provided by a municipal or parish ordinance pursuant to this section from property which is purchased or acquired after the license was obtained for the construction, erection, movement or development of a public playground or a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school, such subsequent purchase or acquisition shall not be grounds for the revocation, withholding, denial or refusal to renew the permit on said premises either by state or local authorities.
      In undeveloped rural areas, the distance shall be measured in a straight line from the nearest point to the nearest point of the respective premises.
      The provisions of this section  shall not be grounds for the revocation, withholding, denial or refusal to renew a Class B state and/or local permit to allow the sale of beverages of low alcoholic content by the package and for consumption off the licensed premises issued between July 31, 1968 and June 30, 1969.
      The provisions of this Subsection shall not apply to municipalities with over 400,000 population.


author: KNOLL, Judge.

text:
    Mr. & Mrs. Philip BODOIN, Plaintiff-Appellant, v. Leland Jerry DAIGLE, Allstate Insurance Company, Defendants-Appellees.
    No. 83-773.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Rehearing Denied July 25, 1984.
    Writ Denied Oct. 26, 1984.

      Poteet & Landry, John G. Poteet, Jr., Lafayette, for plaintiff-appellant.
    Roy & Hattan, L. Lane Roy, Lafayette, for defendants-appellees.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The Bodoins and Daigles share a common property line in a rural portion of Lafayette Parish where they live. The Bo-doins’ home lies east of the boundary and the Daigles’ west.

As early as 1973 the Daigles began letting grass and weeds grow uncut in their pasture as a visual barrier along the fence line which separates their property from the Bodoins’. The grass and weeds were four to five feet high and covered an area approximately twenty feet wide by a depth of two hundred feet.

At approximately 3:00 p.m. on April 30, 1981 a fire of unknown origin began in the Daigles’ pasture away from the visual barrier. It gradually spread into the uncut grass and crossed onto the Bodoin property. Gary Dodson, the Bodoin’s son-in-law, noticed the fire spreading and attempted to control it with a garden hose. Before long Mrs. Bodoin arrived and enlisted the aid of her neighbors, Wilson Pellerin and Clinton Touchet. Shifting winds hampered their efforts to control the fire and at approximately 3:30 p.m. they requested the assistance of the Youngsville Fire Department. Some 35 to 40 minutes later the firemen were able to extinguish the flames.

Despite the efforts to control the fire, it burned through most of the Daigles’ overgrown grass and under the Bodoins’ pine trees and shrubs planted along the fence line.

The Bodoins sued the Daigles and Allstate Insurance seeking damages of $22,-399.26 for the loss of approximately twenty-seven pines and numerous shrubs located along the burned fence line together with damages for mental anguish.

The Daigles denied responsibility for any loss the Bodoins may have incurred as a result of the fire and defended the lawsuit by contending that whatever losses the Bo-doins may have suffered were attributable to the Bodoins’ use of the chemical herbicide, promatol.

The plaintiffs appeal from the judgment of a twelve member jury finding that plaintiffs’ loss was not occasioned by the defendants. They have assigned three specifications of error, namely, that the trial court erred by failing:

(1) to instruct the jury regarding strict liability, specifically LSA-C.C. Arts. 667 and 2317;
(2) to provide the jury with a special written interrogatory regarding strict liability; and
(3)to vacate the order for a jury trial because the defendants did not timely post their bond.

The first issue to be resolved from the facts is causation. Without establishing that the damage was caused by the Dai-gles, the Bodoins cannot recover either under the theory of negligence or strict liability-

To be a cause in fact in legal contemplation, the cause need not be the sole cause but it must have a proximate relation to the harm which occurs, and it must be substantial in character. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973); Dixie Drive It Yourself System v. American Beverage Co., 137 So.2d 298 (La.1962).

The plaintiff must establish a disputed fact by a preponderance of the evidence. Cormier v. Foremost Ins. Co., 405 So.2d 610 (La.App. 3rd Cir.1981); Lombard, supra. Proof of causation may be satisfied by direct or circumstantial evidence. Townsend v. State Department of Highways, 322 So.2d 139 (La.1975); Jordan v. Travelers Insurance Company, 245 So.2d 151 (La.1971). Proof, either by direct or circumstantial evidence, sufficiently constitutes a preponderance of the evidence when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).

Although the theory of strict liability dispenses with the necessity of proving negligence, it does not dispense with the necessity of proof that the property owner’s non-negligent use caused the damages. Morales v. Houston Fire & Cas. Co., Inc., 342 So.2d 1248 (La.App. 4th Cir.1977), writ denied 345 So.2d 49 (La.1977); United States Fidelity and Guaranty Co. v. Hyams, 238 So.2d 750 (La.App. 3rd Cir. 1970).

After reviewing the record in light of these principles, we are satisfied that the Bodoins have failed to establish that their damages were caused either by the fire which originated on the Daigles’ property or by the condition of their pasture.

The jury was presented with the expert testimony of a forester, an agronomist, a horticulturalist, and a plant physiologist who were unamimous in their opinion that herbicide poisoning caused the loss of the Bodoins’ trees. The only contrary testimony was that of plaintiffs’ expert forester who concluded that the fire which originated on the Daigles’ property caused the loss of plaintiffs’ trees. The jury resolved this conflict of testimony in favor of the Daigles and there is ample support for their conclusion. Not finding an abuse of discretion in the jury’s resolution of this issue, we will not disturb their finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Bodoins further contend that the uncontrolled growth of pasture weeds and grass along the Daigles’ property line constituted an inherent danger in the owner’s use of the property. In support of their argument they rely on LSA-C.C. Arts. 667 and 2317.

LSA-C.C. Art. 667 provides:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. ”

Article 667 espouses a doctrine of strict liability which does not depend upon negligence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). Schulingkamp v. Bd. of Levee Com’rs of Orleans, 425 So.2d 913 (La.App. 4th Cir.1983); Wetzka v. Big Three Industries, Inc., 409 So.2d 393 (La.App. 4th Cir.1982); Toussant v. Guice, 414 So.2d 850 (La.App. 4th Cir. 1982); Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir.1978), writ denied 362 So.2d 579 (La.1978); Hero Lands, supra; Lombard, supra.

In Hero Lands, supra, the Louisiana Supreme Court stated as follows:

“While the owners of property are not required to suffer damage as a result of works undertaken on their neighbor’s property, the law has decreed that certain inconveniences must be tolerated. Society requires this of its citizens because many lawful uses of property necessarily result in inconveniences to one’s neighbors. La.Civil Code art. 668.
But the extent of inconvenience the property owner must tolerate without redress depends upon the circumstances. When the actions or works cease to be inconveniences and become damaging is a question of fact. The problem is one which involves the nature of the intrusion into the neighbor’s property, plus the extent or degree of damage. No principle of law confines this damage to physical invasion of the neighbor’s premises — an extrinsic injury, as it were. The damage may well be intrinsic in nature, a combination of facts and conditions which, taken together, do not involve a physical invasion but which, under the circumstances, are nevertheless by their nature the very refinement of injury and damage. Salter v. B. W.S. Corporation, Inc., 290 So.2d 821 (La.1974). Compare Hillard v. Shuff 260 La. 384, 356 So.2d 127 (1972) (Barham, J, dissenting).”

We find as a matter of law that the overgrowth of grass and weeds in the Daigle pasture, which is located in a rural agricultural area, cannot be considered such an intrusion into their neighbor’s property as would give rise to an action for damages under LSA-C.C. Art. 667. Therefore, we conclude that the trial court did not err in failing to instruct the jury regarding Article 667.

Appellants also rely on LSA-C.C. Art. 2317 which provides in pertinent part:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....”

No Louisiana case has held a property owner strictly liable under C.C. Art. 2317 for the spread of a fire from his land to adjacent property, without proof of a defective thing in the landowner’s custody which caused the fire. Toussant, supra, and cases cited therein. In this case the Daigles were not responsible for causing the fire. The cause of the fire is unknown. Further, in our view, the overgrowth of grass and weeds in the Daigle’s pasture did not, under the particular circumstances of this case, constitute a defect in the premises such as to give rise to an action under LSA-C.C. Art. 2317.

Therefore for the reasons aforestated we hold that the trial court did not err in failing to more fully explain strict liability in either the jury instructions or the special jury interrogatories.

Regardless of whether this case is analyzed under the theory of negligence or strict liability, the central issue is causation. The Bodoins were not placed under any greater burden in proving causation because of either the jury instruction or the jury interrogatories. See Lasseigne v. Dauterive, 433 So.2d 334 (La.App. 3rd Cir. 1983). Therefore, plaintiffs’ specifications of errors one and two cannot support a reversal of the jury determination.

The Bodoins contend that the trial court erred in permitting this case to be tried by a jury. Their argument is that although the order for a jury trial was signed on January 20, 1982, the defendants did not post their bond until March 30, 1983.

LSA-R.S. 13:3050 provides in pertinent part:

.. No jury shall be ordered in any civil case unless the bond is given. The clerk of court shall give immediate notice by certified mail to all parties of the signing of the order allowing the trial by jury. The party who prayed for the trial by jury shall give the. required bond within sixty days of the mailing of the notice by the clerk of court....”

The trial court concluded that the defendants’ bond was timely filed because the clerk of court delayed in providing notification of the trial order to the parties. Although the record does not contain documentation of when the clerk notified the parties, the Bodoins do not contend that the defendants failed to file the bond within sixty days of the mailing of the notice by the clerk of court. Absent such a showing, we conclude that the trial court properly denied plaintiffs’ motion to vacate the order granting defendants a jury trial.

The defendants, Leland Daigle and his insurer, Allstate Insurance, urge in brief that they are appealing the trial court’s issuance of a permanent injunction in favor of the plaintiffs, Mr. and Mrs. Phillip Bo-doin.

This presents us with two fundamental problems. First, the record does not contain a signed judgment incorporating the injunction. Second, there is no motion in the record reflecting that the defendants have perfected an appeal and defendants did not answer the appeal.

The record only reflects a minute entry by the trial judge dated May 3, 1983 which provides in pertinent part:

“The evidence presented indicates that the allowance of grass and weeds to grow uncontrolled constitutes a nuisance in fact under the circumstances of this case. Accordingly, the defendant is ordered to control the growth of the weeds and grass to a reasonable level, especially during the summer months when the hazards of fire are greater. Judgment in accordance with the foregoing will be signed upon presentation.

Where there are only written reasons and no separate signed judgment, there is no final judgment. Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3rd Cir. 1980). Without a signed judgment an appeal may not be taken. LSA-C.C.P. Art. 1911; Easterling v. First of Georgia Underwriters, 427 So.2d 6 (La.App. 4th Cir. 1983).

Accordingly, we express no opinion on the injunction issue and remand this matter for further proceedings in connection therewith.

For the foregoing reasons the judgment of the trial court dismissing plaintiffs’ claim for damages is affirmed. Further, this matter is remanded to the trial court for further proceedings in regard to plaintiffs’ demand for an injunction. All costs of appeal are assessed against the appel-lants, Mr. and Mrs. Phillip Bodoin.

AFFIRMED AND REMANDED.


author: WALKER, Presiding Justice,

text:
    Esco Harold SCHILLING v. Carolyn Rimes SCHILLING.
    No. 54166.
    Supreme Court of Mississippi.
    March 7, 1984.
    Rehearing Denied July 25, 1984.
    Gary K. Jones, John M. Roach, Daniel, Coker, Horton & Bell, Jackson, Garland D. Upton, Columbia, for appellant.
    John H. Price, Jr., Barry S. Zirulnik, Thomas, Price, Alston, Jones & Davis, Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Pike County, Mississippi, wherein the appellee (Carolyn Rimes Schilling) was granted a divorce from the appellant (Esco Harold Schilling) on the basis of habitual cruel and inhuman treatment and adultery. Aggrieved with the holding of the lower court, the appellant has perfected an appeal to this Court.

Although lengthy testimony was adduced as to the grounds upon which the divorce was granted, we find it unnecessary to recite those facts as the appellant assigns no error in that regard.

During trial it was established that Mrs. Schilling was unemployed and had no real assets of her own. She and her husband were married in 1960 when they were both nineteen years of age. She aided him in his campaign for chancery clerk and in 1967 quit her job in order to work with him as Deputy Chancery Court Clerk, a position she held for thirteen years. At the time she became aware of his extramarital affair, she was being paid $2,000.00 per month. Mr. Schilling endorsed all of Mrs. Schilling’s paychecks, and, according to him, deposited them in a joint account. Virtually all of the property acquired by the couple during their twenty-one years of marriage was titled in Mr. Schilling’s name. Mrs. Schilling testified her monthly expenses totalled approximately $3,222.00.

The chancellor found Esco Schilling to have substantial holdings of stocks, real estate and mineral interests, including oil production income in excess of $3,500.00 per month and an average monthly income exclusive of oil production income of not less than $5,000.00 or a total of $8,500.00 per month. The court further found that Mr. Schilling had a net worth of not less than $750,000.00. Reasoning that Carolyn Schilling had made a very substantial contribution to the financial position of the appellant, the court awarded Mrs. Schilling lump sum alimony in the amount of $240,-000.00 and monthly alimony of $1,500.00 to be reduced to $1,000.00 per month upon full payment of the lump sum award. The court also awarded Mrs. Schilling $900.00 per month as child support for the couple’s three children. Mr. Schilling does not contest the findings of the court relative to his monthly income and net worth.

Before the final decree was entered, appellant filed his motion to modify wherein he alleged the lump sum alimony was grossly excessive and also that he was unable to pay the amount within the period specified in the decree. The appellant asked the court to reduce the amount of the lump sum award or in the alternative to allow the lump sum award be paid in periodic payments and as a further alternative asked the court to allow him to transfer some leasehold interests or mineral or royalty interest as part payment of the lump sum settlement.

Mr. Schilling’s motion was based in part on his inability to pay the lump sum award, yet, it was established at a hearing on the motion, that since the time of the trial he had sold his van for approximately $8,000.00 and purchased a 1982 Oldsmobile 98 for $13,000.00; purchased two mineral leases in Amite County for which he paid roughly $40,000.00; and purchased 26.31 net royalty acres for $60,513.00. It was also established that he had recently received a check for $8,500.00 from production on the Olive Field Wells where he owned 3.74 royalty acres. The amount of income to be generated by the Olive Field Wells was not included in the court’s assessment earlier of $3,500.00 per month as income from mineral interests.

The court finding its earlier ruling placed an undue financial burden on Mr. Schilling in view of his minimal liquidity position modified its ruling to the extent that Mr. Schilling pay the amount of $249,083.00 as follows: on or before May 1, 1982 the sum and amount of $80,000.00; on or before September 1, 1982 the sum and amount of $85,333.00; and on or before February 1, 1983 the sum and amount of $83,750.00.

On this appeal Mr. Schilling contends that, under the circumstances of this case, the court’s award of lump sum alimony is excessive and unduly burdensome and represents an abuse of the trial court’s discretion and should therefore be set aside or reduced.

By the terms of the statute the chancery court has discretion, having regard to the circumstances of the parties to make an award for the support of the wife and children as may seem equitable, and numerous decisions of this Court relating thereto unvaryingly hold that the chancellor’s decision adjudicating the award will not be set aside by this Court unless it is against the overwhelming weight of the evidence. Harrell v. Harrell, 231 So.2d 793 (Miss.1970). See also Miss.Code Annot. § 93-5-23 (1972).

In Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955) this Court set forth the following conditions to be considered in determining the amount of an award of alimony and child support:

(1)the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile, and (9) such other facts and circumstances bearing on the subject that might be shown by the evidence.

226 Miss. 176, 84 So.2d 153.

In Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973) this Court held that a lump sum award plus monthly alimony is proper where the wife had contributed, as Mrs. Schilling did, to the accumulation of the property of her husband. See also Clark v. Clark, 293 So.2d 447 (Miss.1974).

The appellant cites Reeves v. Reeves, 410 So.2d 1300 (Miss. 1983) as authority that this Court has suggested that ten percent of the husband’s net estate should be used as a guideline in awarding lump sum alimony. In Reeves we stated:

This Court would not have considered a lump sum award of $100,000.00 or ten percent (10%) of the husband’s net estate unreasonable or unfair under the disputed facts in this case. We are not suggesting a ceiling or the actual amount the chancellor should award, but we do intend to signal some sense of proportion in cases of this nature.

410 So.2d 1303.

The ten percent figure clearly was not intended to establish a ceiling nor a floor on the amounts to be awarded in all cases. Under the facts in Reeves the ten percent simply represented what the Court considered to be a reasonable and fair award.

Having carefully applied the standards set forth in Brabham, supra, to the record before us we do not find such an abuse of the chancellor’s discretion in his award of lump sum alimony and periodic alimony which would require reversal.

We find no merit to appellant’s contention that the amount of the lump sum award is oppressive as after carefully comparing the amount of the award to Mr. Schilling’s assets and liabilities and the chancellor’s modification of his former decree, we find little likelihood of an oppressive liquidation of Mr. Schilling’s assets necessary to comply with the award as granted in the final divorce decree.

Finally, the appellant asserts the chancellor’s award of $900.00 per month for child support fails to make provision for any decrease in said amount upon any of the children reaching the age of twenty-one or otherwise becoming emancipated. The appellant cites no authority in support of this proposition other than that the chancellor abused his discretion in entering the award.

This issue was resolved in Moore v. Moore, 372 So.2d 270 (Miss.1979) wherein we stated: "... when a parent is ordered to pay a specified amount periodically for the benefit of more than one child, the emancipation of one child does not automatically reduce the liability of the parent for the full amount.”

Finding no reversible error, the judgment of the lower court is affirmed.. Carolyn Rimes Schilling has filed a motion seeking an award of attorney’s fees for representing her on this appeal. The lower court awarded Mrs. Schilling $7,500.00 attorney’s fees. The usual award in a case such as this is one-half of the fee that was allowed or should have been allowed by the lower court. Spralding v. Spralding, 362 So.2d 620 (Miss.1978). Therefore, the motion is sustained and ap-pellee is awarded $3,750.00 for attorney’s fees incurred on this appeal.

AFFIRMED AND MOTION FOR ATTORNEY’S FEES SUSTAINED IN FAVOR OF APPELLEE IN THE AMOUNT OF $3,750.00.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

      . The additional $9,083.00 is evidently accumulated interest.

      . Therese Carolyn Schilling, born February 14, 1962; Douglas Harold Schilling, born February 27, 1964; and Holly Noelle Schilling, born December 9, 1975.