author: WILLIAMS, Judge. REDMANN, Chief Judge,

text:
    LATTER AND BLUM, INC. v. Brandon T. NODIER.
    No. CA-0823.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      David S. Cressy, New Orleans, for third party defendants-appellants.
    Alan B. Tusa, New Orleans, for defendant-appellee.
    Jonathan M. Lake, New Orleans, for plaintiff-appellee.
    Before REDMANN, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This case involves a dispute over a real estate listing commission. The trial court held that plaintiff Latter & Blum, Inc. was entitled to a commission plus 25% attorney fees and all costs from defendant Brandon Nodier. The trial court also held that defendant was entitled to indemnification from third party defendants, Thomas T. Cloke and David S. Cressy.

Brandon Nodier received the property on 719 Esplanade Avenue in'New Orleans as an inheritance in 1976 after his parents’ death. He bought out his relatives’ portions and obtained full ownership of the property in 1979. At some point, Thomas T. Cloke, a real estate agent, moved next door to the Nodier property. Cloke approached Nodier about purchasing the property and made several offers, all of which Nodier refused.

Nodier agreed to allow Robyn Halvorsen, a friend of many years who was a real estate agent for Latter & Blum, to list his house for sale for $200,000.00. The listing contract provided, “Owner agrees to refer all prospects for the sale of said property to Agent and Agent shall conduct all negotiations for the sale of said property.” A commission of 6% on the first $100,000.00 and 4% on the balance of the property was stipulated. The contract continued, “Owner further agrees to pay Agent the above stipulated commission on any sale of said property negotiated within three (3) months after the expiration or termination of this contract to any party to whom said property was submitted by Agent ... during the period of this contract.” The contract provided that Owner would pay attorney fees incurred for the collection of the commission at 25% of the amount thereof plus court costs and other costs and expenses incurred. Nodier signed the three month listing agreement on March 29, 1980.

On April 24, 1980, Thomas Cloke made an offer to purchase the house for $85,-000.00. Halvorsen showed the offer to No-dier, who rejected it as too low. Exhibit P-2 shows an offer to purchase made by Cloke, signed “rejected as per authority 4-30 Robyn Halvorsen.” Between June 11, 1980 and October 12, 1980, six other offers to purchase Nodier’s property were made to Latter & Blum, all of which Nodier also rejected.

Nodier signed a document reducing the asking price of the property to $175,000.00 on May 6, 1980.

The listing agreement expired on June 29, 1980. On July 10, 1980, Halvorsen had Nodier sign a document reading, “This is your authority to extend your listing from (blank) to 8/10/80 on my property at above address for $175,000.00. All other terms of said listing agreement to remain in full force and effect.” On September 22, 1980, Nodier signed an identical form, this time “to extend your listing from (blank) to 10/22/80.”

On December 3, 1980, Nodier accepted Thomas Cloke’s offer to purchase the property for $145,000.00. Nodier was given $7,500.00 in cash and a promissory note, signed by Cressy and Cloke, for $71,-600.00 .

Latter & Blum, plaintiff in the main demand, filed suit on June 25, 1981, claiming a commission as provided for in the listing agreement for the December 3, 1980 sale of Nodier’s property. Plaintiff prayed for $7,800.00 plus 25% attorney fees and all costs and expenses. Defendant denied that the contract had ever been completed, arguing that his intention to list the property was not a serious one, but just “a favor” granted his longtime friend, Halvorsen. Defendant admitted that he was shown an offer of $85,000.00 from Cloke, and that he rejected that offer, but defendant would not verify Exhibit P-2 as that offer. Instead, he repeatedly asserted that he had written with his own hand across the instrument right where the writing by Hal-vorsen was on Exhibit P-2. Defendant also refuted the validity of the extension agreements, asserting that even if the original listing agreement had been valid, it had long expired and the alleged extensions were without effect. Alternatively, defendant brought a third party claim against the purchasers of his property, Cressy and Cloke. He claimed that Cressy, an attorney, had examined the listing agreement and extensions and had assured Nodier that they were invalid and that he did not owe Latter & Blum any commission. He further testified that Cressy had promised to provide legal assistance and Cloke, financial assistance, were any problems to develop with Latter & Blum, over the commission. Nodier testified that Cloke and Cressy told him that the $7,500.00 cash he was receiving was the sum that would have gone to Halvorsen as commission, but that they were giving it to Nodier instead.

Halvorsen testified that at no time did she doubt the seriousness of Nodier’s intention to list the property and that she would not have wasted her time on the property if she had not perceived the listing as serious. She further testified on cross examination that she could not recall whether the listing agreement gave her authority to reject an offer in the name of the seller, but that it was “a very common practice” and she was “sure that ninety-five percent of all agents in New Orleans do that.” She explained that she wanted to get the response back to Cloke quickly because of the impending expiration date on the contract.

Neither Cloke nor Cressy, both of whom were present in the courtroom, chose to testify on their behalf.

The trial court rendered judgment in favor of plaintiff, granting him $3,900.00 as a half share of the commission, plus attorney fees, costs and expenses. The court also rendered judgment in favor of defendant third-party plaintiff, ordering third-party defendants to fully indemnify him for the judgment due plaintiff in the main demand.

On appeal, third-party defendants assert that the trial court erred in: (1) holding the listing agreement was a valid contract; (2) not considering that the words of the contract indicated it had expired; (3) not considering the extension agreements invalid; (4) maintaining Latter & Blum was the procuring cause of the sale; (5) holding that the April 29, 1980 Cloke offer was ever transmitted to Nodier; (6) holding that there was a promise to indemnify Nodier against any claim of Latter & Blum; and (7) allowing third-party defendants’ failure to testify to create a presumption of detrimental testimony in light of the lack of evidence presented in the case.

Appellants argue in their appeal brief that the original listing was invalid because Nodier, who had only one-half year of high school education, had not known what he was signing and, as he testified, lacked the serious intent required for a valid contract.

Halvorsen testified that she took Nodier seriously when he signed the initial listing agreement on March 29, 1980. Approximately five weeks later Nodier signed a document reducing the property’s asking price $25,000.00 to $175,000.00. Nodier considered and rejected six offers presented to him by Halvorsen over a six month period during which he signed two extension agreements. The trial court apparently concluded that this was neither the behavior of a man acting in jest, nor that of a man too ignorant to understand what he was doing. We must agree.

Appellants point out that regardless of the validity of the initial agreement, it contained an expiration date of June 29, 1980. They contend that the alleged extension agreements were so vague they could not contain an expression of the parties’ intent sufficient to perfect a contract. Appellants assert that even assuming arguen-do that the extensions were valid agreements, they did not extend the original agreement’s life because they had already expired and had become a nonentity. The extensions were distinct and independent listing contracts. Appellants conclude, therefore, that only the initial listing agreement, the agreement in effect when Hal-vorsen received the Cloke offer, can be considered in determining whether a commission is due. Since the sale of the Nodier property was effected December 3, 1980, over 30 days after the June 29, 1980 expiration date of the initial listing agreement, appellants argue that no commission was due.

The listing agreement Nodier signed stated that all terms from the original listing agreement were to continue in full force and effect. The extension was an incorporation of the terms of the first agreement rather than a new, distinct contract. Halvorsen continued to solicit offers in reliance upon the extension and Nodier continued to consider those offers. It is clear from Nodier’s testimony that he believed himself to be under the commission obligation during final negotiations with Cloke and Cressy and that he was very concerned about receiving adequate financial and legal protection from the realtor’s claim.

The hiatus between the original contract’s expiration and the drawing up of the extension contract cannot be used to avoid giving legal effect to Nodier’s and his realtor’s intent so as to benefit appellants. Legal agreements have the effect of law upon the parties and none but the parties can abrogate or modify them. Courts are bound to give legal effect to all such contracts according to the true intent of the parties. La.Civ.Code art. 1945; Louisiana Nat’l Listing Corp. v. A.D.F. Serv., Inc., 377 So.2d 92 (La.1979).

The extension agreements were drawn up between Nodier and Halvorsen of Latter & Blum because they intended them to be valid. The expiration date of the final extension was October 22, 1980. That contract adopted the terms of the original contract, promising the agent the commission “on any sale of said property negotiated within three (3) months after the expiration or termination of this contract to any party to whom said property was submitted by agent ... during the period of this contract” (emphasis added). Appellants’ injection of the theory of procuring cause is unnecessary. A simple reading of the words of the contract demonstrates that the commission was due. There was a sale of the property. The sale occurred within three months of October 22, 1980. The sale was to a party, Cloke, from whom Halvorsen received an offer during the months that the listing agreement was in effect. Appellants argue that the April 29 Cloke offer had never been submitted by Halvorsen to Nodier, but Nodier himself admitted in testimony that he had received and rejected the offer. The trial court apparently concluded Nodier had received the offer and did not consider Nodier’s uncertainty about the exhibit presented as the offer to be significant. We cannot disagree.

Appellants assert that the trial court erred in holding that a promise had been made to indemnify Nodier against any claim by Latter & Blum. Nodier’s one-half year of high school education contrasted sharply with the knowledge of the attorney and real estate agent with whom he negotiated the sale of his property. Plaintiff’s testimony demonstrated his ignorance and his reliance on the greater knowledge of appellants and on the promises they made to him.

The existence of the promise to indemnify Nodier was a factual issue decided by the trial court in plaintiff’s favor. The resolution of such a question of fact lies particularly within the realm of the trial judge, who has the opportunity to evaluate the credibility of the witnesses and the weight of the evidence. The appellate court cannot disturb the trial judge’s factual determinations unless a finding of manifest error is reached. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). We can make no such finding here.

Finally, appellants assert that the trial court erred in allowing their failure to testify to create a presumption of detrimental testimony in light of the lack of evidence presented in the case. The trial judge weighed the circumstances and evidence presented in the case to reach its finding of fact. There is no indication that the judge relied upon such a presumption in order to reach his judgment. This assignment of error is based on mere speculation and is therefore dismissed.

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

AFFIRMED.

REDMANN, C.J., dissenting.

REDMANN, Chief Judge,

dissenting.

Thomas Cloke, himself a real estate broker, moved next door to Brandon Nodier, and, in Nodier’s words, “ever since he moved next door ... every time he seen my face” Cloke attempted to buy Nodier’s property, “way before” Nodier listed the property with plaintiff broker (who sues for a commission on Nodier’s sale to Cloke).

Nodier listed the property with plaintiff on March 29,1980 for three months or until June 29. On April 24, Cloke made' an offer on a “Thomas T. Cloke Inc.” form to buy the property. Listing agent Robyn Halvor-sen “believed” she spoke with Cloke only twice: once “when the offer came in and I think we had one subsequent to that” — presumably to tell Cloke that the offer was rejected April 30.

The listing agreement expired on June 29 without the property having been sold.

Eleven days later, on July 10, Nodier alone signed a form provided by plaintiff purporting to “extend your listing from _to 8/10/80 ....”

Forty-three days after the end of that period, on September 22, Nodier signed another of those forms to “extend your listing from _ to 10/22/80 ....” That document’s term also expired, on October 22, without a sale.

On December 3, Nodier sold the property to Cloke.

The agent sued Nodier for a commission, arguing that those two “extension” documents bound Nodier to pay plaintiff a commission, in the words of the original listing agreement, “on any sale of said property negotiated within three months after the expiration or termination of this contract to any party to whom said property was submitted by Agent ... during the period of this contract....”

It is theoretically difficult to conceive of “extending” a period that has already passed. See, in the different context of extension of appellate return day, Louisiana Power & L. Co. v. Lasseigne, 255 La. 579, 232 So.2d 278, 281 (1970): “That which no longer exists, that which has terminated, cannot be extended.” It may be theoretically more acceptable to consider those “extensions” as new listing contracts, embodying the terms of the original contract. (In that case, however, they would not support plaintiff’s claim for a commission on the Cloke purchase because, if the property was ever “submitted” to Cloke by the agent, it was not during either of the periods of those “extensions.”)

But, pretermitting that question, this writer would hold that the agent never “submitted” the property to Cloke and is therefore not entitled to recover as if on a sale to a “party to whom said property was submitted by Agent_”

The agent has, it must be conceded, a difficult job in phrasing its contract to afford reasonable protection in sales subsequent to expiration of a listing agreement to a buyer it has introduced to the property and interested in it, that is, in circumstances where the broker ought in fairness to be paid a commission. The doctrine of “procuring cause” helps the agent, but procuring cause is often hard to prove. Contractual provisions such as that at issue may solve the proof problem of procuring cause, but they bring their own problems. The bedrock issue in the interpretation of such clauses remains one of fairness.

An agent may be able fairly to argue that a person who learned of the property through the agent’s advertising, “open house,” or other effort is a person to whom the property was “submitted,” even if that person did not make an offer during the life of the listing contract. Yet the proof problems are grave, and the agent cannot be granted a commission on a post-listing agreement sale to a stranger on the basis that the agent “submitted” the property to the whole world by public newspaper advertising.

One may suppose that the contract language was changed to “submitted” from “quoted” because of this court’s Coppage v. Camelo, 330 So.2d 695 (La.App. 4 Cir.1976), in which we concluded that late-sold property had not been “quoted” to an adjacent owner who, like ours, had often tried to buy the property long before the listing agreement. Although we said that “ ‘quoted’ means at least that the price be stated” to the prospect, id. at'696, one may also doubt whether the property there was “submitted” so as to justify a commission. The neighbor there testified he repelled the agents when they came to see him, telling them

“ ‘you don’t need to talk to me, about the land next door, I know all about it and I know who owns it and ... I said, listen, let me tell you right now there is no way I am going to buy it through a real estate [sic], I said, if I am going to buy it, you take your best shot and try to sell it, if I lose it it is okay.’ ” Id. at 696.

Our case is not that strong, but the basic similarity is that a next-door neighbor, who had long tried to buy the property, ultimately buys it after the expiration of a listing agreement but (plaintiff argues) within its post-listing period of limited entitlement to commission.

Also similar to our case is Harkey v. Gahagan, 338 So.2d 133 (La.App. 2 Cir.1976), where the late sale was to a person who had attempted to buy the property (with an adjacent house) prior to the listing agreement, and whom the agent had telephoned during the listing (because the owner told the agent of the prior offer), only to be told that person was not interested because the price was too high. Harkey contains extensive quotations from other Louisiana cases and from cases in other jurisdictions to support the analysis that clauses affording commission on a post-listing-agreement sale require “some minimal causal relationship,” id. at 136, and intend to apply to sales to a prospect in whom the agent, “by his activities, had created some minimal interest which contributed to the eventual sale,” id. at 137. (Harkey’s facts differ from ours in that the listing was of 11 acres, the sale of that plus 2 acres with a house, and for the same price the buyer had earlier offered.)

This writer would conclude that our agent did not “submit” the property to Cloke, either in the literal sense of introducing Cloke to it and offering it to Cloke, or in the analogous causal relationship sense of pursuing Cloke as a prospect already interested in it. The agent did nothing except transmit the offer that Cloke himself prepared. The agent made no further effort to effect the sale that might be considered as “submitting” the property to Cloke so as to oblige Nodier to pay a commission.

The judgment on the third-party demand of Nodier against Cloke and Cressy should be reversed because, notwithstanding that they are bound to indemnify Nodier, Nodier is not liable. Moreover, because they can only indemnify Nodier by either paying the judgment against him on the main demand or having it reversed, they are entitled to have the latter relief also, even though Nodier did not appeal; Robertson v. Perry, 370 So.2d 596 (La.App. 4 Cir.1979), appl. not considered, 372 So.2d 1048; see also Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594 (1963).

      . Because he was unable to collect on the note, Nodier brought suit against Cressy and Cloke, which resulted in a judgment in his favor and against Cressy and Cloke for $67,736.00, $6,926.00 interest, and $3,000.00 attorney fees, rendered September 23, 1982. This judgment has not been appealed.

      . Latter & Blum was entitled to only one-half of the commission, the other one-half belonging to Thomas T. Cloke, Inc.


source: Caselaw Access Project

author: REMY CHIASSON, Judge Pro Tem.

license: Public Domain

text:
    Leroy GARRETT v. DIAZ DRAYAGE COMPANY, ABC Insurance Company, and Aetna Insurance Company.
    No. CA 0636.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      David W. Oestreicher, II, Oestreicher & Whalen, New Orleans, for plaintiff-appellant Leroy Garrett.
    Madison C. Moseley, Blue, Williams & Buckley, Metairie, for defendant-appellee Firemans Fund Ins. Co.
    Before BARRY and WARD, JJ., and CHIASSON, J. Pro Tem.
   REMY CHIASSON, Judge Pro Tem.

Plaintiff in personal injury suit appeals from the judgment of the trial court maintaining defendant’s exception of prescription.

On July 17, 1980, plaintiff Leroy Garrett was involved in an automobile collision with a vehicle whose owner and driver were unknown at the time of the accident. It is alleged that the truck left the scene of the accident and plaintiff only saw the name “Diaz” on the truck. Garrett filed suit on December 31, 1980, for damages naming Diaz Drayage Company as owner of the vehicle and ABC Insurance Company and Aetna Insurance Company as parties defendant. On June 29, 1981, within the one year period, Garrett amended his petition to add Fireman’s Fund Insurance Company as an additional defendant in its alleged capacity as insurer of Diaz Drayage Company.

Fireman’s Fund filed a motion for summary judgment on the grounds that it did not insure Diaz Drayage Company, and after a hearing held on October 23, 1981, judgment was rendered dismissing Fireman’s Fund as the alleged insurer of Diaz Drayage Company. On October 30, 1981, plaintiff filed a second amended petition naming Diaz Cartage Company and Fireman’s Fund as insurer of Diaz Cartage Company and the operator of the Diaz Cartage Company’s truck. Fireman’s Fund filed a peremptory exception of prescription on the grounds that plaintiff’s second amended petition naming it as a party was filed over three months after the anniversary date of the accident and the action was thus barred by one year prescription.

On October 29, 1982, hearing on the exception was held and the trial judge maintained the exception. Plaintiff appeals that judgment.

Contrary to Fireman’s Fund’s contention in this court, the record before us reveals that the exception of prescription was filed only as to Fireman’s Fund and it was not filed as to Diaz Cartage Company.

Unless prescription was interrupted as to Fireman’s Fund or unless the second amendment relates back to the date of the filing of the original petition, the exception of Fireman’s Fund is well taken.

Prescription is interrupted when the obli-gee commences action against the obligor. La.C.C. Article 3462. A suit against one solidary obligor interrupts prescription against others who occupy a position of solidarity with the party sued. La.C.C. Ar-tide 2097. An insurance company stands in a position of solidarity with its insureds and can be proceeded against directly without joinder of the insured whose conduct triggers the insurance coverage. La.R.S. 22:655.

Fireman’s Fund contends we should decide the issue before us on the basis of Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350 (La.1975) which held that a suit against an insurer of X did not interrupt prescription as to it as the insurer of Y. The Trahan case is factually distinguishable from our case because here we are dealing with an amended petition and not a separate suit which has been finally decided. As explained by the Supreme Court in the case of Baker v. Payne & Keller of La., Inc., 390 So.2d 1272 (La.1980), the statement in Trahan was made in explaining why C.C. Article 2097 did not require a finding that the first suit interrupted prescription against the new defendants and their insurers in the second suit. The insured named in the first suit had been absolved of liability and could not be soli-dary debtors with the insured in the second suit.

We are not called upon to ascertain whether prescription was interrupted as to Diaz Cartage Company and express no opinion on that point.

As to Fireman’s Fund, the only difference between the original petition as first amended and the second amended petition is the inclusion of the allegation that Fireman’s Fund was the insurer of Diaz Cartage Company and of the driver of the truck rather than the insurer of Diaz Dray-age Company. The occurrence giving rise to the demand remains unchanged. Since the essence of interruption of prescription by suit is notice, we must determine whether the erroneous naming of Diaz Drayage Company for Diaz Cartage Company constitutes notice to Fireman’s Fund of the plaintiff’s claim against it. The basis of an action against an insurance company under the Direct Action Statute is the existence of a policy issued to the alleged tortfeasor which covers his liability. See Breitenbach v. Green, 186 So.2d 712 (La.App. 4th Cir.1966). This is reflected in the language of the Direct Action Statute, R.S. 22:655, which provides that “[t]he injured person ... shall have a right of direct action against the insurer within the terms and limits of the policy ... This right of action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not...” (Emphasis added). Because the existence of a policy is the basis of a direct action, if the plaintiff brings a direct action against an insurance company, the petition should give notice that the company is being sued in its capacity as insurer of a particular individual or group of individuals. See Liles v. Riblet Products of Louisiana, Inc., 514 F.2d 721 (5th Cir.1975).

If the insured is incorrectly named, although the insurance company is made aware of the occurrence and claim, the company would have no notice as to which policy the suit is based upon. It would be forced to proceed without the benefit of potential defenses based on the particular policy involved. This would undermine the rights of insurers spelled out in the Direct Action Statute: “[A]ny action brought [under this section] is subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured...” In this case, Fireman’s Fund was sued as an insurer of a nonexistent insured, hence, it was not given notice as to the particular policy the action was based upon until over three months after the anniversary date of the accident.

Nonetheless, in Palmisano v. United States Fidelity and Guaranty Company, 371 So.2d 386 (La.App. 4th Cir.1979), the Court concluded that the prescriptive statute, R.S. 9:5801, is to be liberally construed so as to require only that the defendant be notified of the proceedings instituted against him in order to toll prescription. The crucial inquiry, therefore, is whether the original petition naming Diaz Drayage Company as the insured can be construed as putting Fireman’s Fund on notice of a claim against them as the liability insurer of Diaz Cartage Company. Were it not for the similarity of the names, we would be inclined to hold that Fireman’s Fund was not given notice of the particular policy sued upon.

Nevertheless, due to the striking similarity of names of the original named insured and the later named insured, we hold that Fireman’s Fund had notice sufficient to toll the running of prescription as against it under these peculiar circumstances. Thus prescription, having been interrupted, had not run at the time of the filing of the second amended petition.

For these reasons the judgment of the trial court is reversed, the peremptory exception of prescription is overruled, and the case is remanded for further proceeding, all at the costs of Fireman’s Fund Insurance Company.

REVERSED AND REMANDED.


author: KLEES, Judge.

text:
    Sandra BURTON v. F.W. WOOLWORTH COMPANY, et al.
    No. CA-0882.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1983.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    Carl L. Aspelund, Law Offices of James J. Morse, New Orleans, for defendants-ap-pellees.
    Before KLEES, GULOTTA and WARD, JJ.
   KLEES, Judge.

Plaintiff, Sandra Burton, was injured in a fall on an escalator in an F.W. Woolworth Company Store. The escalator was installed and maintained by the Otis Elevator Company under contract with the F.W. Woolworth Company. From an adverse judgment rendered in favor of the defendants, F.W. Woolworth Company, the Travelers Insurance Company and Otis Elevator Company, plaintiff appeals, alleging that the trial court erred in failing to find the escalator in question defective and F.W. Woolworth and Otis Elevator Company liable. We can find no error and affirm.

FACTS

The plaintiff, along with her sister and a friend, was descending an escalator in the F.W. Woolworth Company store at 1041 Canal Street in New Orleans on March 10, 1979. The plaintiff had been shopping in the store with her two-year-old child and her sister. While in the store they met Yolanda Dockery who accompanied the two women and the child down the escalator. The plaintiff testified that she stepped on the escalator ahead of Ms. Dockery and her sister, who was carrying the plaintiffs child. She was holding several bags in her left hand and one in her right hand. Plaintiff testified that as the escalator descended “it gave one hard jerk”, which caused her to fall down the escalator despite the fact that she said she held or grabbed the railing.

No one else on the escalator fell and no witnesses to the fall were called at trial except the plaintiffs friend, Ms. Dockery. Plaintiff testified that the escalator gave one hard jerk and then got back on its smooth motion without stopping. Later in her testimony, plaintiff said that the escalator did in fact jerk a few times after the first hard jerk that caused her fall.

The testimony of Ms. Dockery, who was behind the plaintiff on the escalator, was substantially the same as the plaintiffs regarding the jerking of the escalator. Ms. Dockery said that when the escalator jerked “it kind of stopped” and then started up again.

Jocelyn Schultz, the personnel manager at the F.W. Woolworth store, was at the scene of the accident shortly after it happened and wrote out the accident report. The report which was filed into evidence indicates that after the fall plaintiff told Ms. Schultz that she either slipped, tripped, or lost her balance. Ms. Schultz testified that during 1979 she had received no other complaints of people being injured by jerking escalators.

Another employee of the F.W. Woolworth store, Theresa Williams, testified that she was working in the camera and music department at the bottom of the escalator at the time of the accident. She testified that she turned to look at the plaintiff when she heard someone saying that it was time to get off the escalator. She said that plaintiffs child was sitting on the steps of the escalator, although plaintiff testified that her child was held by her sister. After Ms. Williams had briefly turned to look at the plaintiff she resumed her duties in her department and heard nothing more until she learned that plaintiff had fallen.

Michael Nevle, a maintenance examiner for Otis Elevator Company, testified that he had not heard of any complaints about the escalator jerking and that this incident was not reported to the company on March 10, 1979. Norris Ward, another employee of Otis Elevator Company, testified as an expert in the field of maintenance and operation of escalators. Mr. Ward used a scaled down model of an escalator mechanism to demonstrate that an escalator could not jerk and stop and then resume its normal motion. He stated that the steps could not jerk and keep on moving.

David Steele, a senior project manager of escalators with Otis Elevator Company, was asked by the trial judge if an escalator could jerk without stopping. Mr. Steele, testifying in his capacity as an expert in the design and operation of escalators, said it could not jerk and continue to run in a normah manner.

The plaintiff in her brief relies upon a line of cases involving injuries on escalators in which the plaintiffs were all injured directly by the escalator mechanism. In each of these cases, however, feet had to be forcibly removed from the moving steps of the escalator. The plaintiff relies on the case of Wolverton v. City Stores Company, 363 So.2d 1321 (La.App. 4th Cir.1978) in asserting that there should be judgment in her favor. We find that the recent case of Power v. Otis Elevator Company, 409 So.2d 389 (La.App. 4th Cir.1982) is more applicable. In that case, the court was faced with a fact situation almost identical to that of the instant case and the jury found in favor of the defendants. This court affirmed that finding on appeal with the following language:

“However, the same principle which led us to affirm in Wolverton dictates the same result in this case; i.e., we cannot say that the jury was clearly wrong in concluding adversly to plaintiff on her attempt to prove that the- escalator malfunctioned.” Power v. Otis Elevator Company, supra at 391.

In this case we cannot say that the trial court was clearly wrong in its finding. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


author: LABORDE, Judge.

text:
    Delores SANDERS, Plaintiff-Appellant, v. Anthony W. ADAMS, Defendant-Appellee.
    No. 83-980.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 1983.
    George A. Guidry, Alexandria, for plaintiff-appellant.
    Steven Young, Alexandria, for defendant-appellee.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The plaintiff-appellant, Delores Sanders, has devolutively appealed a judgment of the trial court sustaining defendant-appel-lee’s, Anthony W. Adams, exception of no right of action and dismissing Sanders’ suit for change of custody or alternatively joint custody. We dismiss the appeal ex proprio motu as being untimely filed.

Sanders alleged in her petition that she was the mother of two minor children, Alisha Renee Adams and Anthony Warren Adams, Jr. She further alleged that the trial court by a previous order had granted custody of the children to the adoptive father, Anthony Warren Adams. Finally, Sanders alleged that the best interest of the children would be served by a change in custody from Adams to her or in the alternative that joint custody be granted. Adams filed the peremptory exceptions of res judicata and no right of action. Adams argued that under LSA C.C. Art. 214 he was the sole adoptive parent and as such has all rights to the children as if they were his legitimate children and that Sanders who surrendered the children for adoption was divested of all her legal rights to the children. Sanders stipulated for the purpose of the present exception that the adoption was valid.

The trial court concluded that Sanders had a right of action. However, on its own motion, the trial court concluded that Sanders’ petition failed to disclose a cause of action. The trial court relied on LSA C.C. Art. 214. In its written reasons for judgment, the trial court stated:

“A literal reading of Art. 214 quoted above can lead to no other conclusion but that the adoptive parent has the right to custody and the blood parent is divested of all rights to custody.”

The trial court found that by admitting that the final judgment of adoption was legally rendered, Sanders had also conceded that she had no rights to the custody of the children. On August 4, 1983, the trial court signed a final judgment in favor of Adams sustaining his exception of no cause of action and dismissing Sanders’ suit. On September 15, 1983, Sanders applied for and was granted a devolutive appeal.

This court issued a rule to show cause why this appeal should not be dismissed as untimely under LSA C.C.P. Art. 3943. In response, Sanders filed a memorandum in which she claimed that LSA C.C.P. Art. 3943 was not applicable because the issue of custody had not yet been litigated.

Louisiana Code of Civil Procedure Article 3943 provides:

“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

If the judgment is related to custody, then the appeal must be perfected within thirty days. Devall v. Devall, 357 So.2d 899 (La.App. 3rd Cir.1978). A review of the facts revealed that the trial court had found that Sanders had divested herself of all her rights to the children including custody. Therefore, we conclude that the judgment appealed from is “related to custody” as that term is used in LSA C.C.P. Article 3943.

When an appellant fails to timely take and perfect an appeal, the appellate court lacks jurisdiction to hear the appeal. In such instances, the appellate court may on its own motion, recognize its lack of authority to entertain the appeal and dismiss same. Lamartiniere v. Fringe Facts, Inc., 412 So.2d 1161 (La.App. 3rd Cir.1982).

In the instant case, the judgment was signed on August 4, 1983, and no notice of judgment was required or requested. Therefore, the delays for filing a motion for a new trial began to run on the next day August 5, 1983, and expired on the seventh day thereafter, exclusive of legal holidays, or on August 15, 1983. LSA C.C.P. Art. 1974. Sanders did not apply for a new trial. Therefore the 30 day appeal delay began to run on August 16, 1983. LSA C.C.P. 1974, 2087(1), 3942, 3943. Sanders according to our calculations would have had until September 14, 1983, to have filed her appeal. Accordingly, the appeal taken on September 15, 1983, was untimely.

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

APPEAL DISMISSED.


author: FORET, Judge.

text:
    GAHAGAN LAND & TIMBER CO., INC., Plaintiff-Appellee, v. James WEEKS and his wife, Charlotte Berry Weeks, Defendants-Appellants.
    No. 83-989.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 1983.

      Gahagan & Gahagan, Russell E. Gaha-gan, Natchitoches, for plaintiff-appellee.
    John Makar, Natchitoches, for defendants-appellants.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   FORET, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Gahagan Land & Timber Co., Inc., moves to dismiss the appeal of the defendants-appellants, James Weeks and Charlotte Berry Weeks, as not being timely filed. We dismiss the appeal.

This is a possessory action in which Ga-hagan alleges its possession was disturbed by the filing of a deed relating to its property by the Weeks. Judgment was rendered in favor of Gahagan recognizing its right to possession of the subject property. The judgment was signed on May 17, 1983 and notice of judgment was mailed on May 18, 1983. The defendants filed no application for a new trial nor did the trial court grant a new trial to defendants ex proprio motu. The delay for the filing of an application for a new trial and/or the granting of a new trial by the trial court ex proprio motu expired on May 27, 1983. LSA-C. C.P. Article 1974; Mitchell v. Louisiana Industrial Life Ins. Co., 204 La. 855, 16 So.2d 458 (1943). On June 2, 1983, the trial court granted the Weeks’ motion to include certain deeds in the record. In granting the motion, the trial court stated:

“On motion of defendant and on suggesting to the court that it has previously indicated that it would grant a new trial or rehearing for the purpose of including exhibits which were through inadvertence left out of the record, and on further suggesting that the plaintiff by letter to the court has indicated that it would have no opposition thereto, the law being in favor thereof,
IT IS ORDERED that the timber deeds from Gibbs to Slaughter be filed in the record of this case.”

Subsequently, the trial court granted a de-volutive appeal on July 15, 1983.

Article 3662 of the Code of Civil Procedure provides in part:

“A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(1)-(3).”

In accordance with the above article this Court ordered the Weeks to show cause why the appeal should not be dismissed as being untimely perfected.

The Weeks contend that the running of the appeal delays were held in abeyance until such time as the trial court allowed the record to be supplemented. This argument is without merit. This is a possesso-ry action. Thus, the running of the appeal delays is governed by C.C.P. Article 3662. Under Article 3662, commencement of the appeal delays are governed by Article 2087(l)-(3). LSA-C.C.P. Article 2087(1)-(3) provides as follows:

“(1) The expiration of the delays for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914: or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

As afore stated the Weeks did not file an application for a new trial nor was one granted ex proprio motu within the statutory delays. Therefore, the thirty day delay began to run seven (7) days, exclusive of legal holidays after the mailing of the notice on May 18, 1983. LSA-C.C.P. Art. 1974. Since the appeal was not taken within the 30 days delay allowed by the C.C.P. Article 3662, the appeal was not taken timely and is hereby dismissed. Patin v. Dow Chemical Co., 429 So.2d 881 (La.App. 3rd Cir.1983).

For the reasons assigned, the plaintiff-appellee’s, Gahagan Land & Timber Co., Inc., motion to dismiss is hereby granted. All costs of the appeal are assessed against defendants-appellants, James Weeks and Charlotte Berry Weeks.

APPEAL DISMISSED.

      . The trial court’s order of June 2, 1983, allowing supplementation of the record cannot be considered a grant of a new trial ex proprio motu as the order was issued after the applicable delays provided for by LSA-C.C.P. Article 1974. We view the order of June 2, 1983, simply as a stipulation between parties with an accompanying order authorizing supplementation. of the record.


text:
    Johnnie WATERS, Plaintiff-Appellee, v. Steve KEEVER, Defendant-Appellant.
    No. 83-232.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Jim Ortego, Lake Charles, for defendant-appellant.
    Johnnie Waters, in pro. per.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

In this appeal the sole specification of error is whether the Sulphur City Court acted prematurely and without jurisdiction when it rendered a default judgment against the defendant nine days after citation and service of process while the defendant, under LSA-C.C.P. art. 4915, was entitled to ten days to answer the petition.

This suit was instituted by Johnnie Waters, who claimed that Steve Keever, was indebted to him in the amount of $406.29. Service of citation occurred on January 10, 1983 and judgment was entered on January 20, 1983. Louisiana Code of Civil Procedure Article 4915, which applies to cases involving $500.00 or less in city courts, provides:

“The defendant shall answer within ten days of the service of citation, except that when the citation is served through the secretary of state, the delay, as to all defendants, shall be fifteen days after service.

Acts 1979, No. 46, § 1, eff. Jan. 1, 1980.”

Applying the guidelines LSA-C.C.P. art. 5059, the date of service of citation is not counted. Thus, only nine days had elapsed when the trial court entered the default judgment.

We conclude that the Sulphur City Court was premature in entering the default judgment. The judgment is hereby set aside, and this matter remanded to the trial court for trial on the merits. Costs of this appeal are assessed against plaintiff-appel-lee, Johnnie Waters.

REVERSED AND REMANDED.


author: DOUCET, Judge.

text:
    Gary E. EWING, Plaintiff-Appellant, v. Jill Iiames EWING, Defendant-Appellee.
    No. 83-262.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Trimble, Randow, Percy, Wilson & Foote, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
    Edward Larvadain, Jr., Alexandria, for defendant-appellee.

      Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This is an action by Gary Ewing to reduce child support and to amend visitation privileges. The trial court denied Mr. Ewing’s petition for a reduction in child support as well as his request for amendment of visitation privileges. From the above decision, this appeal was taken.

Plaintiff, Gary Ewing, requested that his child support be reduced from $250.00 month to $150.00 month because of a change in circumstances. The alleged change involved additional expenses related to the birth of a child from a second marriage. Plaintiff claims that despite a salary increase the new liabilities caused a drop in net income which necessitated a diminution in child support to his children from his first marriage. The trial court held that this change in circumstances was not significant enough to warrant a modification in the amount of child support owed.

Awards of child support are within the sound discretion of the trial court and will not be disturbed on appeal in absence of an abuse of discretion on the part of the trial court. In this case, the trial court did not abuse its discretion. The new conditions which the plaintiff described developed by his own volition and should not entitle him to a reduction in child support. The increase in liabilities related to the birth of a child of a second marriage should not affect the child support which is owed to the children of a previous marriage. The children of his first marriage should not be penalized as a result of obligations incurred during his second marriage. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959), Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir.1981), and Alexander v. Alexander, 417 So.2d 92 (La.App. 3rd Cir.1982).

The plaintiff also petitioned for an amendment in visitation privileges. He asked that the privileges be clarified by changing them from the first and third weekend to every other weekend. The trial court found the privileges clear, did not alter them, and to avoid possible confusion defined “weekend”. The first weekend in the month was defined to start on the first Friday of the month.

Unless there is a clear showing of an abuse of discretion in areas such as child custody and visitation privileges, judgments and awards are within the sound discretion of the trial court and will not be disturbed on appeal. The trial court studied the visitation privileges, defined potentially confusing terms and thus acted without abuse of discretion.

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

AFFIRMED.


text:
    Mary Ann MEAD, Plaintiff-Appellant, v. Barry Dale MEAD, Defendant-Appellee, and Barry Dale MEAD, Plaintiff-Appellee, v. Mary Ann MEAD, Defendant-Appellant.
    Nos. 83-269, 83-270.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Neblett, Beard & Arsenault, Richard W. Beard, Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Mary Ann Mead (plaintiff) instituted suit against Barry Dale Mead (defendant) for separation from bed and board. Defendant, in a separate action as plaintiff, subsequently filed suit for divorce. These actions were consolidated for trial. After hearing both actions, the trial court granted the wife a separation on grounds of abandonment and the husband a divorce upon a showing that the parties had lived separate and apart in excess of one year. Plaintiff, Mary Ann Mead, appeals the portion of the trial court judgment dismissing her purported community property interest in the proceeds of a worker’s compensation settlement received by defendant, Barry Dale Mead, resulting from a personal injury sustained on his job three months prior to dissolution of the community. We are presented with determining whether the funds are separate or community property of the former community. The trial court held that the proceeds were the separate property of defendant, Barry Dale Mead. We affirm.

The facts establish that plaintiff, Mary Ann Mead, and defendant, Barry Dale Mead, were married on January 19, 1977 and one child was born of the marriage. The parties physically separated on November 22, 1978 and failed to reconcile. On December 7,1979 defendant was accidently electrocuted while in the course of his employment and sustained severe physical injuries. Plaintiff then filed suit for separation on February 29, 1980 alleging that defendant abandoned her. The trial court granted the plaintiff a restraining order enjoining defendant from alienating or encumbering any and all community property. Defendant, subsequently filed an action on March 4, 1980, as plaintiff, for absolute divorce. The cases were consolidated for decision.

On May 13, 1982 defendant received $285,000 in the form of a worker’s compensation compromise settlement from his employer. Defendant’s attorney then paid out all of defendant’s related bills and turned the net proceeds over to defendant who in turn gave $10,000 to plaintiff. Plaintiff then convoked a rule nisi to have defendant show cause why he and his attorney should not be held in contempt of court for violating the restraining order enjoining defendant from alienating community property. The trial court held that neither defendant nor his attorney violated the restraining order since plaintiff had no right, of a community nature, in defendant’s settlement funds. Subsequently, a separation and divorce was granted as prayed for in the respective petitions, except that the settlement proceeds were held to be the separate property of defendant.

Plaintiff relies on five assignments of error to raise the issue as to whether defendant’s compensation settlement is community or separate property and whether she is entitled to a one-half community interest therein.

Assignment #1

On the morning of trial, counsel for defendant filed an “amended answer to amending petition” over plaintiff’s objection. Defendant asserted in the amended answer that the $10,000, which he gave to plaintiff on May 14, 1982, was a compromise which extinguished any interest that plaintiff may have had in the compensation settlement. Plaintiff objected when the trial court received defendant’s amended answer, contending that • the purported amendment was supplemental in nature and that notice of such supplemental allegations on the morning before trial was unreasonable.

The general rule concerning this issue is that the trial court has much discretion in allowing or refusing an amendment after an answer is filed and such ruling will not be disturbed unless there has been an abuse of discretion. Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3rd Cir.1981). In the instant case, plaintiff personally received $10,000 representing the alleged compromise and her attorney was well aware of the facts surrounding the allegations in the amending answer. The same defenses were discussed previously at the hearing on the contempt rule and at pre-trial conference prior to trial. The trial court found that the amended answer did not raise any new issues nor could it in any way cause surprise or do injustice. We agree. Therefore, the trial judge did not abuse his discretion in allowing the amended answer. This assignment is without merit.

Assignments #3, 4, and 5

The particular issue presented by these assignments is whether the husband’s personal injury settlement constitutes separate or community property since the injury occurred prior to dissolution of the community regime.

Prior to January 1, 1980, personal injury awards inuring to the husband were deemed community property, whereas in similar instances involving the wife, the same was deemed her separate property. In West v. Ortego, 325 So.2d 242 (La.1975) the Louisiana Supreme Court considered this former legislation with reference to a husband’s recovery of workmen’s compensation benefits. The court concluded that LSA-C.C. articles 2334 and 2402, now repealed, were not enacted in contemplation of the issue at hand and resorted to equity, i.e., “to natural law and reason ...” to resolve the case. The court reasoned:

“Applying the foregoing principles, we conclude that where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.
Ascertaining the post-dissolution portion of the settlement in the case at hand is quite simple in view of the fact that the bulk of the prospective compensation settlement represents weekly fixed sums. Ascertaining the respective portions of a non-workmen’s compensation personal injury settlement (or jury verdict, for that matter), while not quite as simple, is nonetheless possible.”

In the instant case, the trial court concluded that the defendant’s personal injury settlement was his separate property by virtue of the newly enacted LSA-C.C. art. 2344 which provides:

“Damages due to personal injuries sustained during the existence of the community by a spouse are separate property.
Nevertheless, the portion of the damages attributable to expenses incurred by the community as a result of the injury, or in compensation of the loss of community earnings, is community property. If the community regime is terminated otherwise than by the death of the injured spouse, the portion of the damages attributable to the loss of earnings that would have accrued after termination of the community property regime is the separate property of the injured spouse.” (Emphasis Added)

Since the injury giving rise to these proceeds occurred prior to this enactment, plaintiff contends that the former LSA-C.C. articles 2334 and 2401 govern the proceeds, thereby making the settlement proceeds community property. We disagree. Even considering the issue in light of the former articles we find as the Supreme Court did in West, supra, that when a settlement is made after dissolution arising from a pre-dissolution injury, an accounting is due to the wife for only that portion of the settlement attributable to the time when the community existed. That portion attributable to the post-marital period is the separate property of the husband. West v. Ortego, supra; Placide v. Placide, 408 So.2d 330 (La.App. 3rd Cir.1981). This results in the same objective intended by the newly enacted and current LSA-C.C. art. 2433. In Loyola Law Review, Volume 26 at 485, Professor Janet Mary Riley comments:

“Wives lose again in the new Act’s Characterization of ‘damages due to personal injuries.' LSA-C.C. art. 2344. Former Civil Code articles made such damages received by a wife her separate property, yet those received by a husband were community property. LSA-C.C. 2334 and 2402 (both repealed 1979). Recent decisions have softened the harshness of these rules in cases of separation or divorce following the injury, but have not solved the problem in all situations. West v. Ortego, 325 So.2d 242 (La.1975). See also Broussard v. Broussard, 340 So.2d 1309 (La.1976). New Article 2344 provides: ...” (Emphasis Added)

The recent decision referred to by Professor Riley in the comment above is precisely the type of case which plaintiff appeals. Therefore, we find that whether we treat defendant’s compensation settlement under the old or new laws, the result will be the same. The settlement is the separate property of the husband, less and subject to, an equitable apportionment for community loss from the date of the injury to the date of dissolution. The community of Barry Dale Mead and Mary Ann Mead was dissolved effectively on February 29, 1980, the date plaintiff filed for separation. Since the injury to defendant occurred on December 7, 1979, plaintiff is entitled to expenses and compensation for the loss of community earnings for approximately three months. Plaintiff argues that there is no rational basis to apportion defendant’s settlement into a portion which is community and a portion which is defendant’s separate property. Therefore, it should be presumed community in toto. We disagree. In Placide v. Placide, supra, the jury returned a verdict in favor of the husband for a substantial amount following an injury which occurred prior to dissolution of his marriage. The verdict did not apportion the recovery and the wife argued that the proceeds were therefore community property. In Placide, supra, we stated:

“The ease of West v. Ortego, supra, dictates that we resort to equity to apportion monies acquired after dissolution of the community for damages awarded in compensation for an accident which occurred before the dissolution of the community when the award covers both pre-dissolution and post-dissolution losses. We find that there is sufficient evidence before us to permit an equitable apportionment of the damages awarded to appellant.”

Despite the fact that there is nothing in the record to aid us in determining the exact amount of community earnings lost during the three month period, we find that Mary Ann Mead did receive $10,000 from defendant following his recovery of the settlement proceeds. In accord with the trial court, we hold that this amount exceeds by far any amount or equitable apportionment reasonably due plaintiff for losses to the community during the three month period.

With respect to the trial court’s reasons for judgment concerning the constitutionality of the former gender-based statutes, we acknowledge that the former LSA-C.C. art. 2834 poses serious constitutional issues involving equal protection. However, the portion of West v. Ortego, supra, pertaining to the equitable apportionment of a husband’s pre-dissolution injury settlement remains controlling in cases of this instance. The failure of defendant to specifically plead the unconstitutionality of the former code articles precludes us from considering the issue on appeal. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974). Nevertheless, we find ample authority to resolve this issue in favor of the defendant.

Accordingly, defendant and his counsel cannot be held in contempt of court for violating the restraining order enjoining them from alienating community property. The trial court properly declared the settlement proceeds to be defendant’s separate property and plaintiff is not entitled to a community interest therein. Assignments 3, 4 and 5 are therefore without merit.

Assignment #2

The trial court excluded evidence of former testimony of Barry Mead, his attorney and Mary Mead, taken at a hearing on the contempt rule on June 7, 1982. The trial judge excluded this evidence on the basis of irrelevancy. The testimony concerned the issue of contempt for violation of an injunction enjoining Barry Dale Mead from alienating or encumbering the community property.

Since the testimony tends to prove or disprove the status of the settlement proceeds as either community or separate, we hold that the trial court erroneously excluded the evidence on the basis of irrelevancy.

Nevertheless, we do not find that this incorrect ruling constitutes reversible error.

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

AFFIRMED.

      . See former LSA-C.C. articles 2334 and 2402. (Repealed, Acts 1979, No. 709.)


text:
    Gerald P. RICHARD, in his Capacity as Natural Tutor of the Minor, Darrin P. Richard, Plaintiff-Appellant, v. BEACON NATIONAL INSURANCE COMPANY, Defendant-Appellee.
    No. 83-273.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Baggett, McCall & Ranier, William Bag-gett, Jr., Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Yiccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Plaintiff-appellant, Gerald P. Richard, in his capacity as natural tutor of the minor, Darrin P. Richard, seeks to obtain underin-sured motorist insurance coverage under LSA R.S. 22:1406(D) from his insurer, Beacon National Insurance Company, defendant-appellee. The trial court denied the coverage finding that Texas insurance laws applied to the policy. Richard appeals. We affirm. We find that the insurance contract was passed and executed in Texas; therefore, Texas law is applicable under LSA C.C. Art. 10.

The issue on appeal is whether or not the trial court erred in applying the laws of Texas in its interpretation of the insurance policy.

The accident giving rise to this litigation occurred on April 16, 1981, in Calcasieu Parish, Louisiana. Darrin P. Richard (a Texas resident) was a passenger on a motorcycle operated by Danny S. Stephens (a Louisiana resident), owned by George Gui-dry (a Louisiana resident) and insured by Dairyland Insurance Company. The motorcycle collided with an automobile driven by John H. Laurie (a Louisiana resident) and insured by State Farm Mutual Automobile Insurance Company.

Prior to trial, Richard settled his claims against the tortfeasor in this case and released him in full. All insurance companies except the insurance company involved in this particular issue paid up to their limits.

Richard filed suit against Beacon National Insurance Company, a Texas corporation, to recover the amount of Ten Thousand and no/100 ($10,000.00) Dollars, the uninsured motorists limits. There is no underinsured motorists coverage provided by Beacon and no premiums were charged for this particular coverage.

Under' Texas law, where the limits of liability of a tortfeasor are equal to those of the uninsured motorists coverage provided by the policy, then there is no “underinsured status” and therefore the uninsured motorist carrier would have no liability. On the other hand, Louisiana treats uninsured motorists coverage as excess where the amount of damages are above those of the liability and/or primary uninsured motorists carrier. LSA R.S. 22:1406.

The trial court held that Texas law should be applied to the interpretation of an insurance policy issued by a Texas insurance company to a Texas resident when the accident occurred in Louisiana. The trial court based its holding upon the provisions of LSA C.C. Art. 10, the Supreme Court decision of Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972), and Powell v. Warner, 398 So.2d 22 (La.App. 4th Cir.1981).

It is Richard’s contention that the case of Sutton v. Langley, 330 So.2d 321 (La.App. 2nd Cir.1976) and this Court’s recent decision in Champion v. Panel Era Mfg. Co. v. Kaiser Aluminum & Chemical Corp., 410 So.2d 1230 (La.App. 3rd Cir.1982) provide the applicable interpretation of the law. We disagree.

Louisiana has provided statutorily for the resolution of this particular issue. Louisiana Statutes Annotated C.C. Article 10 states:

“The form and effect of public and private written instruments are governed by the laws and usages of the place where they are passed or executed.”

Beacon’s policy was issued in and by a Texas agency under the provisions of Texas law to a Texas resident (Richard) covering his vehicle which was registered in Texas.

Where the insurer issues an uninsured motorist policy in Texas for delivery in Texas to a Texas resident to insure an automobile registered and principally garaged in Texas. Louisiana underinsured coverage provisions do not impute coverage to the Texas policy where it did not include said coverage. Abel v. White, 430 So.2d 202 (La.App. 4th Cir.1983).

We find that the insurance contract was passed and executed in Texas; therefore, Texas law is applicable under LSA C.C. Art. 10.

In Powell v. Warner, supra, the court distinguished Sutton v. Langley, supra. In Powell, supra, the court stated:

“Plaintiffs are not seeking uninsured coverage as in Sutton, but rather ask that underinsured limits be created and judicially added to the policies which they purchased.”

Our case is similar in that the policy executed in Texas does not provide for underinsured coverage and no premiums were charged for this type of coverage. As in Powell, supra, we conclude that Richard cannot invoke the uninsured provision of his policy to add underinsured provisions of Louisiana law.

For the above and aforegoing reasons, the judgment of the trial court is affirmed at the cost of plaintiff-appellant, Gerald P. Richard, in his capacity as natural tutor of the minor, Darrin P. Richard.

AFFIRMED.


text:
    Eugene MITCHELL, et ux., Plaintiff-Appellee, v. SOUTH CENTRAL BELL, et al., Defendant-Appellant.
    No. 83-279.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Watson, Murchison, - Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for defendant-appellant.
    Thomas, Dunahoe & Gregory, A.J. Gregory, Natchitoches, for plain tiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Plaintiffs, Eugene Mitchell and Evelyn Mitchell, husband and wife, instituted this suit seeking damages from defendants, South Central Bell Telephone Company and its employee Marvin A. Lester, alleging the latter’s negligence in making an improper left turn which resulted in damage to the automobile operated by Mrs. Mitchell to the extent that six days later, while operating the same vehicle, the left door came open and Mrs. Mitchell fell from the vehicle and sustained substantial injuries. The trial judge found that the collision between the Mitchell and telephone company vehicles was the proximate cause of the subsequent accident and injury and further found the plaintiff free from fault. From that judgment, defendants appeal. We affirm.

The evidence presented at trial led the district court to conclude that Marvin A. Lester, as an employee of South Central Bell Telephone Company, was negligent in making a left turn on March 3, 1981, colliding with the vehicle driven by Evelyn Mitchell and, as a result thereof, there was substantial damage done to the Mitchell vehicle, particularly the left frame horn and front door on the driver’s side. No personal injuries resulted from this accident. The impact was such that, following the accident, the left door to the Mitchell vehicle could only be closed by lifting the door and pushing it in. Thereafter, Mrs. Mitchell took the vehicle to three car dealerships for the purpose of securing repair estimates.

Six days after the aforesaid accident while en route to an automobile dealership to order parts, the plaintiff, Evelyn Mitchell, was driving the same vehicle on Texas Street in the city of Natchitoches when the damaged door came open without any warning and Evelyn Mitchell fell out of the automobile and was seriously injured.

A disinterested witness, Patricia Booty, testified that she was on Texas Street and saw this accident happen. According to Mrs. Booty’s testimony, Evelyn Mitchell was heading west on Texas Street when the left door of her vehicle came open and the car ran off the road and Mrs. Mitchell fell out, rolled some twenty to thirty feet before rolling into a drainage ditch which was filled with mud and water. Mrs. Booty testified that the weather was extremely cold on that day and despite this fact Evelyn Mitchell remained in the cold water and mud for approximately twenty minutes before the police arrived and pulled her from the ditch. Mrs. Booty testified that she went directly to the edge of the deep canal in which Evelyn Mitchell was lying and called out to her to find out if she was conscious. At the time Mrs. Mitchell was face down in the mud and water but raised her head to verify that she was conscious, however, she advised Mrs. Booty that her back was hurting too bad for her to move.

The investigating officer, Joseph S. Bros-sett testified that when he arrived on the scene he found Mrs. Mitchell in a deep ditch of water and “she was freezing”. He testified that he could not talk to her at the scene of the accident because she was in no shape to talk. He further testified he removed her from the muddy ditch as opposed to her moving from the ditch under her own power.

Dr. C.E. Cook, the treating physician for Evelyn Mitchell, saw her on March 9, 1981 at approximately 11:00 a.m. at which time she advised him that she had fallen out of her car as a result of the door coming open due to a malfunctioning latch. Dr. Cook saw Evelyn Mitchell on an emergency basis and found her to have bruises, contusions and a compression fracture of one of the dorsal vertebrae. Dr. Cook further testified that this type of compression fracture causes the peristalsis of the intestines to stop with a resulting buildup of intestinal gas which leads to gas-associated pain. Dr. Cook hospitalized Evelyn Mitchell for 8 or 9 days for bed rest then fitted her with a back brace. Following her discharge from the hospital Evelyn Mitchell was seen on a regular basis by Dr. Cook until August of 1982 or for a period of 17 months and she was still suffering with neck and back pain as of the last visit. Dr. Cook was convinced her complaints of pain were sincere.

The trial court concluded that the sole and proximate cause of the accident and the resulting injuries to Evelyn Mitchell was the negligence of Marvin A. Lester whose negligence is imputed to his employer, South Central Bell Telephone Company under the theory of respondeat superior.

With regard to damages, the trial court noted that the plaintiff Evelyn Mitchell suffered severe pain and fright at the time of the injury in that she fell out of her car and rolled some twenty to thirty feet across pavement and gravel and tumbled into a deep, muddy ditch which was filled with cold water. She laid there in severe pain for a period of twenty to twenty-five minutes before being removed. She was then hospitalized for a period of 8 to 9 days and upon being released she suffered back and neck pain for a period of at least 17 months. She was not afforded adequate relief as a result of wearing her back brace and in fact had to be taken out of the back brace because it was more painful than the condition for which it was prescribed. In addition, she had severe gas pains and did not respond well to her medication. Doctor Cook was of the opinion that perhaps her pain medication had caused the peptic ulcer which she was later afflicted with. Accordingly, the trial judge entered a general damage award against South Central Bell and its employee Marvin A. Lester, in soli-do, in the amount of $15,000.00. In addition, there was a judgment in favor of the community of acquets and gains existing between Evelyn Mitchell and her husband Eugene Mitchell for special damages in the amount of $3,054.14.

The defendant’s appeal is premised upon three assignments of error, to wit: (1) The trial judge erred in finding that Marvin Lester’s negligence on March 3, 1981, was cause in fact of plaintiff’s injuries occurring on March 9, 1981; (2) The trial court erred in finding the defendant was under a legal duty to protect plaintiff against said risk following the first accident; and (3) The trial judge erred in finding the plaintiff was not contributorily negligent and/or assumed the risk of her injuries.

In Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the following duty-risk analysis was set forth:

(1) Was the conduct complained of a cause in fact of the harm?
(2) Was the defendant under a legal duty to protect against the particular risk involved?
(3) Was the defendant’s conduct negligent?
(4) Was the plaintiff damaged as a result?

Accord: U.S. v. M/V Big Sam, 454 F.Supp. 1144 (La.D.C.1978).

Regarding the causal relationship required between the harm to the plaintiff and the defendant’s alleged negligent conduct, if the plaintiff can show that she probably would not have suffered the injury complained of but for the defendant’s conduct, she has carried her burden of proof relative to cause in fact. Lear v. U.S. Fire Ins. Co., 392 So.2d 786 (La.App. 3rd Cir.1980).

Not all risks are excluded from the scope of duty simply because they are un-forseeable. Hill v. Lundin & Associates, Inc., supra.

The plaintiff would not have suffered the injury complained of but for the conduct of the defendants. We agree with the trial judge that plaintiff carried her burden of proof relative to cause and fact and that the defendant’s duty extended to the risk encountered. The record is devoid of any evidence that plaintiff was aware the door might open when the automobile was driven under conditions of normal use. The testimony of Mrs. Mitchell indicates she had experienced difficulty in opening and shutting the door, however, once closed the door had never opened while being driven and she had no reason to believe it would do so. In this regard, the trial judge found as fact that Mrs. Mitchell operated the vehicle in an ordinary and prudent manner and we discern no abuse of discretion in this factual conclusion. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Furthermore, we find that Mrs. Mitchell’s actions in driving the car, in the condition it was following the first accident, to be reasonable. The plaintiff was acting in accordance with the defendant’s instructions when she proceeded to get the vehicle repaired. There is no proof that Mrs. Mitchell possessed knowledge of the risk posed when she acted in accordance with the defendant’s request. In addition, there is no evidence that the door was defective prior to the March 3, 1981 accident.

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

AFFIRMED.


author: CUTRER, Judge.

text:
    Andrew J. FISK, et al., Plaintiffs-Appellants, v. Andrew J. FISK, Jr., et al., Defendants-Appellees.
    No. 82-281.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 9, 1984.

      John P. Navarre, Oakdale, for plaintiffs-appellants.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

Andrew J. Fisk, Sr., and his wife, Pearl Grantham Fisk, sued their only child, Andrew J. Fisk, Jr., and his ex-wife, Janey Safford Fisk, to have a “sale and assumption of deed” set aside; plaintiffs, alternatively, sought to have the defendants ordered to reimburse plaintiffs for a certain amount of money advanced to defendants by plaintiffs. After a non-jury trial the plaintiffs’ demands were dismissed. Plaintiffs appeal and we affirm.

This appeal raises two separate, but factually related, issues. First, can the plaintiffs successfully attack, for failure of corn sideration, the “sale and assumption deed” they entered into with defendants, the stated consideration therein being that defendants would assume an existing mortgage, when evidence introduced by plaintiffs shows the mortgage has been paid in full?

Secondly, if plaintiffs cannot rescind the sale, are plaintiffs in this case due reimbursement by defendants for certain sums which plaintiffs provided defendants while defendants were paying off the mortgage referred to in the deed?

We will discuss each of these issues, in turn, after reviewing the facts of this case.

FACTS

In March 1973, the plaintiffs mortgaged three tracts of land, totaling 25.67 acres, to secure a loan of $18,000.00. The proceeds from this loan were used to pay for the construction of a new home for plaintiffs. In April 1973, after plaintiffs had made one payment on the loan, the plaintiffs sold to defendants 35.67 acres of land; this sale included the land previously mortgaged and an additional 10 acre tract. The stated consideration in the deed of sale was defendants’ assumption of the obligation of paying the $18,000.00 loan. After this sale the defendants became the owners of the land specified and two residences located thereon. One of the residences defendants acquired was the new home recently built by plaintiffs.

The defendants moved into the older home on the property and began making the periodic payments called for in the original mortgage. In August 1981, seven months before the instant suit was filed, the plaintiffs, using the proceeds from a check issued to the defendants, paid the mortgage in full. Throughout this time plaintiffs continued to live in the newer residence on defendants’ land.

Between the date of sale, April 25, 1973, and the time the mortgage was paid in full, August 4, 1981, plaintiffs sent to defendants, on a more or less regular basis, an amount equal to the monthly payments defendants had agreed to pay. Defendants, on their joint personal income tax returns, deducted the interest paid on the mortgage and, according to Janey Safford Fisk, reported the payments from plaintiffs as rental income. The plaintiffs deny they paid rent to defendants and Andrew J. Fisk, Jr., characterizes the payments from plaintiffs as a loan.

RESCISSION OF THE SALE

The plaintiffs brought suit seeking to have the sale rescinded or, alternatively, to have defendants ordered to repay the amounts advanced to defendants by plaintiffs. The trial judge succinctly disposed of plaintiffs’ first issue as follows:

“Plaintiff seek to set aside this deed for failure to pay consideration. The stated consideration in the deed was to be the assumption of the payment by the defendants of a certain promissory note. This note dated March 16, 1973, in the amount of $18,000.00 was executed by Mr. Fisk, Sr., to the J.B. Edwards Trust, to be paid at the rate of $209.00 per month.
“The ... issue ... is whether or not the defendants complied with this obligation to assume the promissory note payments to the J.B. Edwards Trust. If they did, then consideration was paid and the deed may not be set aside for failure to pay the stated consideration.
“Defendant, Janey Fisk, introduced into evidence numerous checks written on her and Mr. Fisk, Jr. joint account in the amounts of $209.00 to the J.B. Edwards Trust. The Court finds this evidence sufficient to prove that the defendants did in fact make the payments on the obligation they assumed. Thus, the sale and assumption deed of April 25, 1973, is valid because consideration was paid.

Generally, a party to an authentic act concerning the sale of immovable property cannot attack that sale on the basis of failure of consideration unless the attacking party alleges fraud, mutual error or coercion, or unless he produces evidence in the nature of a counter letter, or unless lack of consideration is indicated by answers to interrogatories or requests for admissions of fact. See LSA-C.C. art. 2236, and the cases interpreting it. Plaintiffs in this case have made none of the above required allegations or showings. In addition to defendants’ evidence referred to by the trial judge plaintiffs themselves introduced a copy of the original mortgage held by the J.B. Edwards Trust which contained the notation “Paid in Full.” The trial judge correctly found that consideration was paid.

Prior to trial defendants filed an exception of no cause of action referring to plaintiffs’ main demand for rescission of the sale. The trial judge denied the exception and proceeded to trial. In this appeal defendant, Janey Safford Fisk, answered the appeal and reurged the no cause of action exception. Our review of the record in this case convinces us the trial judge correctly denied the no cause of action exception prior to trial. The evidence relied upon by the trial judge in ultimately dismissing plaintiffs’ primary claim was not available at the time the exception was denied. We affirm the dismissal of plaintiffs’ primary demand for the reasons stated by the trial judge.

REIMBURSEMENT

Having found the plaintiffs cannot rescind their sale to defendants we must address their alternative demand, that being, the claim that defendants owe reimbursement to plaintiffs in an amount equal to the payments defendants made on the mortgage. We agree with the trial judge’ finding concerning the basis of plaintiff’s second demand; the trial judge stated:

“There is no doubt that the ultimate source of the money for the payment of this debt was Mr. Fisk, Sr. [plaintiff]

The trial judge continued his statement and enunciated the issue raised by the plaintiffs’ second demand when he said:

“but there is doubt as to the purpose behind the payments which Mr. Fisk, Sr., made to the defendants while this note was being paid off.

The trial judge found that the payments from plaintiffs to defendants were gifts and as such no reimbursement was due. The trial judge was apparently influenced by the fact that defendant, Mr. Fisk, Jr., was the son and only child of the plaintiffs and the testimony of the parties which seemed to indicate that the parties entered into this transaction to allow certain beneficial tax consequences to enure to defendants’ benefit. However, in light of an answer, by defendant, Janey Safford Fisk, to plaintiffs’ request for admissions the trial judge erred in finding that the payments made by the plaintiffs were gifts to defendants.

Pursuant to LSA-C.C.P. art. 1466 et seq. plaintiffs submitted to defendants certain requests for admissions. Defendant, Janey Safford Fisk, alone, made the following response thereto:

“Janey Safford Fisk, hereby denies that Andrew Fisk, Sr. provided money to pay any promissory note dated March 16th, 1973 or gave either herself or the community of acquets and gains existing between Andrew J. Fisk, Jr. and Janey Safford Fisk any gratuitous donations or any sums of money without consideration.

C.C.P. art. 1468 provides, in part, “Any matter admitted under this rule is conclusively established .... ” In view of Janey Fisk’s answer to the request for admissions denying that payments by the plaintiffs were “gratuitous donations,” we conclude that the trial judge was clearly wrong in finding that the sums advanced by plaintiffs to defendants were gifts.

However, we affirm the trial judge’s dismissal of the plaintiffs’ alternative demand for reimbursement on other grounds. Janey Safford Fisk testified that the payments defendants received from plaintiffs constituted rental payments for the plaintiffs’ use of the newer residence located on land the defendants purchased in the April 1973, act of sale. Defendants became owners of that new residence and had a right to charge such rent. Janey Safford Fisk also testified that she had conversations with her husband, Mr. Fisk, Jr., concerning the rental nature of the payments and, perhaps most importantly, she testified that the payments from plaintiffs were reported to the Internal Revenue Service as rental income. Mr. Fisk, Jr., was at the trial and he was not called to contradict this testimony of his wife. Plaintiff’s (Mr. Fisk, Sr.) testimony to the contrary is overcome by defendant’s (Mrs. Fisk, Jr.) testimony and plaintiffs’ failure to contradict same through Mr. Fisk, Jr.’s testimony; Mr. Fisk, Jr., being at trial and obviously a friendly witness toward plaintiffs.

We find, after reviewing the record before us, that the payments made by plaintiffs to defendants, during the time the defendants were paying the mortgage, were rental payments. Being rental payments defendants are under no obligation to “reimburse” plaintiffs these amounts.

For the reasons stated above the decision of the trial court is affirmed. All costs of this appeal to be paid by plaintiffs-appellants.

AFFIRMED.

      . To avoid confusion between the parties (four persons named Fisk and two of those being Sr. and Jr. respectively) we will refer to them simply as plaintiffs and defendants.

      . Our perusal of the record reveals that Janey Safford Fisk filed a third party demand against her husband, Andrew J. Fisk, Jr., alleging that he had conspired with his parents, plaintiffs in the main demand, to defraud her of her community property interests. Included in her petition was a prayer that she be allowed to proceed in the third party action in forma pauperis. The trial judge never signed the proposed order which would have allowed Janey Fisk to proceed without paying costs. The record contains no disposition of this third party demand and it is not argued on appeal. We will not consider it further.

        . The check mentioned above represented payment, by an oil company, for a mineral lease granted by defendants, as owners of the property-

      . The testimony of Mr. Fisk, Jr., is given little, if any, weight. We agree with, and quote, the trial judge’s reasons for this:
      "Defendant, Mr. Fisk, Jr., although he never answered this suit, did appear and testify that his father loaned him and his wife the money to pay off the note. Mrs. Fisk, Jr., however, testified that the payments by Mr. Fisk, Sr., were not loans but were rental payments for his [Fisk, Sr.] being allowed to stay and live on the property for his remaining years. There was also testimony that Mr. Fisk, Jr. and Mr. Fisk, Sr., intermingling [sic] funds over this period of time.

        "Mr. Fisk, Jr.'s position is one that requires close scrutiny. Should this Court decide that no consideration was paid by defendants, then this rather valuable piece of property would be removed from the community property in the pending community property dispute [between Fisk, Jr., and Janey Safford Fisk], This would make Mr. Fisk, Jr., the sole heir to the property and eliminate Mrs. Fisk, Jr.’s property interest.
      “It is apparent to this Court that had there not been a marital breakup between the defendants, then the present action would not have been instituted.”
      We note Mr. Fisk, Jr. filed no answer. The plaintiffs’ entered a preliminary default against Fisk, Jr., thus, he could benefit from his wife’s defense in the suit.

      . This case does not involve the same issue normally found in the cases which interpret the parol evidence rule of C.C. art. 2236 to preclude a cause of action by a party to an authentic act. The great majority of the cases, finding no cause of action, are based on acts of sale which recite a specific consideration "in hand received." A party to an authentic act containing such a stipulation cannot later challenge the recital unless he urges one or more of the specified factual situations referred to in text above.
      In the instant case, the recited consideration was that defendants would, in the future, make the periodic payments plaintiffs originally were obligated to make. Plaintiffs here are not challenging an "in hand” recital; rather, they are saying defendants failed to make payments on, essentially, a credit sale. When plaintiffs themselves introduced the original mortgage bearing the "Paid in Full” inscription, they, plaintiffs, proved consideration had been paid. The trial judge properly dismissed that portion of the plaintiffs’ suit on the merits and we affirm that dismissal, on the merits.


author: YELVERTON, Judge.

text:
    SHELL PIPE LINE CORPORATION, Plaintiff-Appellee, v. Arley A. SARVER, Defendant-Appellant.
    No. 83-291.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Rehearing Denied Jan. 13, 1984.
    Writ Denied March 9, 1984.

      Privat & Regan, Kenneth 0. Privat, Crowley, for defendant-appellant.
    Broadhurst, Brook, Mangham, Hardy & Reed, Oscar E. Reed, Jr., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   YELVERTON, Judge.

Shell Pipe Line Corporation, plaintiff-ap-pellee, filed an expropriation suit against Arley A. Sarver, defendant-appellant. Subsequent to the judgment granting the expropriation and the later jury verdict awarding compensation, various rules were filed by both parties. From a judgment denying Sarver an award of attorney’s fees and interest on the jury award and reducing by one-half (¾⅛) the proposed fee of Sarver’s expert, A. Byron Core, Sarver appealed. We find that the trial court did not err in denying Sarver an award of attorney fees and interest. We find no error in the award of the expert fee. However, we find the trial court erred in ordering Sarver to return the payment of interest paid by mistake by Shell.

The issues on appeal are whether the trial court erred:

1. In fixing the expert fee of A. Byron Core;
2. In not granting Sarver attorney fees;
3. In denying Sarver interest on the jury award; and
4. In ordering Sarver to return the payment of interest paid to him by mistake by Shell.

Shell instituted the present action against Sarver to gain a right of way for the construction of a pipeline. The expropriation was allowed and the right of way was awarded by judgment dated November 28, 1978. In June 1982 a trial was held to determine the compensation due Sarver. After hearing evidence regarding the value of the property taken and damages caused by the taking, a jury determined that the compensation to be awarded was $30,-191.26.

On June 10, 1982, Shell deposited in the Registry of the Court the sum of $37,-271.07 representing the principal amount of the verdict ($30,191.26) together with interest on compensation for the taking of the right of way from December 4, 1978, and interest on damages from June 20, 1980. The interest paid was $7,079.81. Sarver subsequently withdrew the total deposit from the Registry of Court.

A few days later Shell discovered that Sarver had never prayed for interest in his pleadings addressed to the subject of compensation. Shell then filed a motion styled: “Return of Erroneous Payment of Interest.” Sarver countered with rules to fix expert fees, fix interest and set attorney fees.

After hearing these rules the trial court in written reasons denied Sarver all interest, denied attorney fees and fixed A. Byron Core’s appraisal fee at $1,300.00. The trial court also rendered a judgment ordering Sarver to reimburse Shell the interest amount of $7,079.81 previously deposited in the Registry of Court in error and withdrawn by Sarver.

On appeal Sarver contends that he is entitled to attorney fees under LSA-R.S. 19:8. Further, he contends that the appraiser’s fee should have been fixed at $2,650.00, which was the amount the evidence shows was actually charged by the expert. Finally, he contends it was error not to have awarded him legal interest; he urges that the fact that interest was not prayed for specifically is of no consequence since interest is due from the date of the taking whether prayed for or not.

Judge Hebert in his written reasons for judgment addressed the issues raised by Sarver on appeal. After reviewing the record and the jurisprudence, we find that the trial court was correct in his denial, of attorney’s fees and in his determination of the expert fee. Therefore, we adopt Judge Hebert’s well articulated reasons as to these issues as our own.

“Defendant seeks attorney’s fees under the provisions of LSA R.S. 19:8. This statute does grant the defendant in an expropriation a right to seek attorney’s fees if the highest amount offered, as determined by the trial judge, is less than the compensation awarded. Further, the time allowed in R.S. 19:8 is ‘prior to trial on the merits’. It is the opinion of the Court that immediately prior to trial, an offer of $45,-000.00 was made to defendant. Since this amount exceeds the compensation awarded,1 and was offered prior to trial on the merits, defendant is not eligible for attorney’s fees under R.S. 19:8.

“The Court is given the power to grant or deny attorney’s fees in expropriation suits. See City of Lafayette vs. Delhomme, 401 So.2d 1044 (La.App. 3rd Cir., 1981). The intent of R.S. 19:8 seems clear; to encourage fair offers by plaintiff, and to encourage reasonableness on the part of defendants. In light of the testimony and the findings of the jury, $45,000.00 was a reasonable offer. Defendants arguments that ‘pretrial’ means ‘prefiling’ and ‘offer’ means ‘tender’ are without merit. Defendant’s prayer for attorney’s fees is denied.

“It is stipulated between the parties that the plaintiff is liable for costs of these proceedings. A disputed item of costs consists of the expert witness fee of A. Byron Core. Sarver contends that a fee of $2650.00 is reasonable due to time spent, and the jury’s use of his land value figure. The Court recognizes the value of Mr. Core’s testimony, but also considers plaintiff’s argument that much of Mr. Core’s efforts involved establishing severance, a factor of damages specifically denied by the jury. Considering the foregoing, the Court finds that an award of $1300.00 is justified for the expert witness fee of Mr. Core, based upon Defendant Exhibit D-5.”

Concerning the issue of whether Sarver was entitled to judicial interest on the amount of the jury award calculated from the date of taking, the trial court denied this claim because there was no specific prayer for interest in Sarver’s pleadings. Additionally, the trial court ordered Sarver to return the erroneous payment of interest by Shell.

We find the trial court was correct in determining Sarver was not entitled to an award of interest. In cases of expropriation by entities such as the plaintiff the defendant is entitled to legal interest on his compensation from the date of judgment taking the property or from the date the plaintiff appropriates the property for its use, whichever is sooner. Trunkline Gas Co. v. Rawls, 394 So.2d 1250 (La.App. 2nd Cir.1980), writ denied 400 So.2d 904 (La.1981). However, LSA-C.C.P. art. 1921 provides: “The court shall award interest in the judgment as prayed for or as provided by law.” Under this codal article, interest may be awarded only if prayed for or if provided by statute. Lake Charles Harbor & Terminal Dist. v. Prestridge, 182 So.2d 334 (La.App. 3rd Cir.1966). In the present case the defendant failed to pray for interest and there is no statutory authority to award such interest. The trial court was accordingly correct in this ruling.

However, the trial court was incorrect in ordering the return of the erroneous payment of interest. Shell deposited in the Registry of Court the sum of $7,079.81 representing interest. Sarver subsequently withdrew this amount. In its rule seeking the return of that money, Shell declared it had mistakenly paid Sarver a debt not due. The trial court granted the motion and ordered Sarver to return the payment of interest. We find the court erred in this portion of its judgment and that the plaintiff is entitled to keep the interest that was paid.

Under LSA-C.C. art. 2302 a person “who has paid through mistake, believing himself a debtor, may reclaim what he has paid.” However, this right is qualified by article 2303 which states:

To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery, (emphasis added)

In the present case an obligation on the part of Shell for payment of interest arose on the date of the expropriation judgment. Because Sarver did not specifically pray for interest, this obligation could not be civilly enforced. However, once the plaintiff voluntarily paid the obligation by depositing the money into the Registry of Court and once the defendant withdrew the sum, the plaintiff is precluded by Art. 2303 from acquiring the right to reclaim this sum.

For these reasons the judgment of the trial court ordering the defendant to return the payment of interest made by the plaintiff is reversed; the judgment of the trial court is affirmed in all other respects at the appellee’s cost.

AFFIRMED IN PART; REVERSED IN PART.