author: LABORDE, Judge.

text:
    Michael RIDER, et al., Plaintiffs-Appellants, v. Susan Rider FONTENOT, et al., Defendants-Appellees.
    No. 84-48.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Clyde Fontenot, Ville Platte, for plaintiff s-appellants.
    J. Jake Fontenot and Thomas F. Fuselier, Mamou, for defendants-appellees.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal from a summary judgment dismissing plaintiffs’ suit. We reverse and remand.

Plaintiffs-appellants Michael Rider and Ron Rider are the sons of Clarence Rider and his wife, Viola Rider. Defendant-ap-pellee Susan Rider Fontenot is the daughter of Clarence and Viola Rider, and she is also the wife of defendant-appellee Steven Fontenot. Clarence Rider died intestate in January of 1980, but all of the other above-named persons are still alive.

On October 31, 1977, Clarence and Viola Rider purported to sell their homestead, consisting of a house and about two acres of land, to their daughter Susan, as Susan’s separate property, with her husband Steven Fontenot concurring in that status. Mr. and Mrs. Rider reserved the usufruct and habitation of the property for their lives, together and individually. The act of sale further provides:

WITNESSES:

[signed-with..his..mark]_
Clarence Rider
(signed].
Viola G. Rider
[signed].
Susan Rider Fontenot
[signed].
Steven Francis Fontenot
NOTARY PUBLIC”

“This sale made and accepted for and in consideration of the price and sum of SIXTEEN THOUSAND FIVE HUNDRED AND NO/100 ($16,500.00) DOLLARS, which has been advanced over the past several years for medical expenses, repairs on the home, necessary appliances and furniture and to expend the sum of $2,500.00 to renovate the home after the passage of this sale.

It is further understood that none of the above consideration will be paid in cash to sellers.

Contracting parties dispense me, Notary, from the production of the Certificate of Mortgage required by law.

THUS DONE AND PASSED at Ville Platte, Louisiana, on the day, month and year aforesaid in the presence of the undersigned, competent witnesses, who have signed with the appearers and me, Notary, after reading the whole.

As shown above, the act of sale was accomplished without any cash changing hands. The act was neither witnessed, notarized, nor recorded.

Subsequent to this purported sale, Mr. and Mrs. Rider continued to reside on the property, and apparently no one apart from the contracting parties was aware of the transaction. All litigants in this case agree that Mr. and Mrs. Rider had some misgivings about transferring the property, and therefore decided that, at the least, the sale act should not be notarized and recorded. Clarence Rider doubted the legality of the transaction, and he and Mrs. Rider were also concerned that the sale of the property could result in a termination of certain government benefits they were receiving.

Defendants continued to entreat Clarence and Viola Rider for a transfer to them of title to the ⅛ Rider homestead and, on April 16, 1979, another act of sale was signed by the parties. This act purported to transfer title to the property to Steven and Susan Rider Fontenot, with Mr. and Mrs. Rider again reserving the habitation and usufruct of the property for their lives, together and individually. The act of sale further provides:

“This sale made and accepted for and in consideration of STEVEN FONTE-NOT clearing the mortgage indebtedness on said property which mortgage note was due Leslie Ardoin and was many years past due and the said STEVEN FONTENOT having paid said mortgage indebtedness which totaled $2,810.02,

Witnesses:

[signed b.y.Frieda.B.F.ontenntl
[signed.h-y.Dehra.I^_Gm]lor.y].
the receipt whereof is hereby acknowledged, and full acquittance and discharge granted therefor. Contracting parties dispense me, notary, from the production of the Certificate of Mortgage required by law.

DONE AND PASSED at Ville Platte, Evangeline Parish, Louisiana on the day, month and year aforesaid in the presence of two undersigned and competent witnesses, who have signed with the appear-ers, and me, Notary, after reading the whole.

[signed].
CLARENCE RIDER
[signed].
VIOLA G. RIDER
[signed by Susan R. Fontenot].
STEVEN F. FONTENOT as per SRF
..IsignecL.hy.Aack.Frnge]... NOTARY PUBLIC”

The mortgage indebtedness referred to in the act of sale was a debt owed by plaintiff Michael Rider to Leslie Ardoin, which was secured by a mortgage on the property of his parents. After the 1979 act of sale, Michael Rider was told that the debt to Ardoin was extinguished, but that he now owed the money to Steven and Susan Rider Fontenot. He then paid the $2,810.02 to Steven Fontenot, but neither he nor plaintiff Ron Rider were actually aware at that time that an attempt to transfer title to the Rider homestead to Steven and Susan Rider Fontenot was involved in the disappearance of the debt. Plaintiffs claim that Steven and Susan Rider Fontenot coerced Clarence and Viola Rider into transferring the property by telling the Riders that Ardoin would foreclose on the mortgage on their property if the debt was not paid immediately. Plaintiffs explain that the elderly, relatively impoverished Riders then decided that they would be better off if they agreed to give title to the property to the Fontenots in exchange for extinguishment of the mortgage.

The 1979 act of sale was recorded, and discovered by plaintiffs. It is this transaction that plaintiffs attacked in the petition that started this lawsuit. Plaintiffs averred that the mortgage indebtedness referred to in the act of sale was a debt owed by plaintiff Michael Rider to Leslie Ardoin, which was secured by a mortgage on the property of his parents. Plaintiffs further stated that Leslie Ardoin had agreed to allow Michael Rider to pay the debt “whenever he could,” and that Ardoin had told defendants that “he was in no rush to collect the debt.” Deposition testimony of Ardoin substantiates these averments, and makes clear that Ardoin had no intention of foreclosing the mortgage on the Rider homestead.

In their petition, plaintiffs claimed that the 1979 sale should be rescinded because of defendants’ fraud, rescinded because of lack of consideration, or rescinded because of lesion beyond moiety. Alternatively, plaintiffs claimed that the 1979 sale was a simulation, a disguised donation, or an advantage to a forced heir.

The petition was filed in July of 1982. Subsequently, the litigants deposed potential witnesses, and prepared for trial. After several attempts to defeat or delay trial by exceptions, defendants filed a motion for summary judgment on November 3, 1983, shortly before a scheduled trial on the merits. Defendants’ motion raised, for the first time, the 1977 act of sale, which was appended to the motion. Until the motion was filed, plaintiffs were not aware of the 1977 act of sale.

While he was preparing for trial, defendants’ attorney added the following to the body of the 1977 act:

“STATE OP LOUISIANA
PARISH OF EVANGELINE
On this — day of ., 19...., before me, personally appeared: Viola Guillory Rider, Susan Rider Fontenot and Steven Francis Fontenot, to me known to be the persons who executed the foregoing instrument, and acknowledged that they executed it as their free act and deed for the uses, purposes, and benefits therein expressed.
[signed].
[signed].
Paula Courville
VIOLA GUILLORY RIDER
[signed].
[signed].
Vickie Hundley
SUSAN RIDER FONTENOT
[signed]..
STEVEN FRANCIS FONTENOT
[signed].
J. JAKE FONTENOT NOTARY”

The act of sale was then recorded prior to the motion for summary judgment (but well after suit had been instituted). It should be noted that Clarence Rider, vendor in the act of sale, died before the institution of this suit and did not sign the acknowledgment.

Defendants’ motion, in substance, contended that there was no valid sale of the property in 1979, because Clarence and Viola Rider had no title to the property to convey after the 1977 sale. Therefore, defendants argued, the suit against them should be dismissed.

Plaintiffs argued that introduction of the 1977 sale at such a late date was solely for the purpose of delaying the resolution of the ultimate issue: whether the property had, in fact, been transferred to defendants by a valid transaction. Further, plaintiffs argued, the 1977 act was never intended by the vendors to have any effect; therefore, it could not preempt a later sale.

The trial judge found that the 1977 act of sale transferred to defendants any title to the property that defendants might have, and that the 1979 act of sale was therefore a nullity. He entered summary judgment for defendants, dismissing plaintiffs' suit attacking the 1979 sale.

Plaintiffs have perfected this appeal.

We reverse the decision of the trial court. Defendants should not have been allowed to raise the prior act of sale in a motion for summary judgment, because the 1977 act of sale constitutes an affirmative defense to an action based on the 1979 act of sale, and therefore should have been raised in the answer to plaintiffs’ petition. We do not rule on the validity of either act of sale; rather, we hold that the prior act was improperly raised in an attempt to defeat litigation on the second act.

Louisiana Code of Civil Procedure article 1005 provides:

“The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

Although “prior acts of sale” is not an enumerated affirmative defense, clearly, it falls under “any other matter constituting an affirmative defense.” See La.Code Civ. Proc. art 1005 comment (e). The prior act of sale operates as any other affirmative defense, because it serves to defeat plaintiffs’ action not by a showing that the facts and questions of law raised by plaintiffs’ petition will result in a judgment for defendants, but instead that matters wholly apart from the consideration of issues raised by plaintiffs’ petition will result in a judgment for defendants. Thus, just as the enumerated affirmative defense of “discharge in bankruptcy” does not concern legal and factual questions raised by plaintiff’s petition, but instead raises another legally sufficient ground to defeat an action, then so does the defense of transfer of title by a prior act, at least where that prior transfer is to the same person or persons sued as a result of the second purported transfer of title.

The policy behind the requirement that affirmative defenses be raised in answer is sensible and laudable. Because affirmative defenses raise matters for judicial resolution outside of issues raised by plaintiff’s petition, plaintiff must be made aware of these matters at an early stage so that plaintiff can prepare an opposition to the defense and adjust his case, if necessary, in light of the new facts and issues raised by the affirmative defense. If the affirmative defense is allowed despite the defense not being raised in answer, the result is a surprise “trial by ambush” that unfairly aids the defendant, who knew about the defense even though plaintiff was kept in ignorance of the defense.

In this case, if defendants had properly raised their affirmative defense in answer, the plaintiffs could have (and undoubtedly would have) amended their petition to attack both purported transfers of title. Plaintiffs could have adequately prepared their legal and factual arguments as to the efficacy of both transactions. Raising the affirmative defense in answer not only would have been fair to the plaintiff, it also would have simplified for the trial court what has now become a complex and unusual dispute. Further, it would have prevented the possibility that plaintiff might have to challenge the 1977 and 1979 acts of sale in separate judicial proceedings, which would have been advantageous to the litigants and the heavily burdened court system of this state.

Clearly, defendants could not legally raise the 1977 act of sale for the first time in a motion for summary judgment. A motion for summary judgment turns on the applicable law as applied to “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any _” La.Code Civ. Proc. art. 966. Put simply, the motion rests upon the record, with affidavits, if necessary, to attest to the truth of facts already alleged in the pleadings of one or more of the litigants. If the established facts show that there is no genuine, material factual issue, and if the mover is entitled to judgment based on the law as applied to these established facts, then the case may be summarily adjudicated. In this case, the 1977 act is open to factual question, and it clearly was neither a part of the record nor alleged in the pleadings of either party. Therefore, the trial judge should not have granted summary judgment based on the legal effect (if any) of the 1977 act of sale.

This court has broad discretionary power to “render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.Proc. art. 2164. We hold, in this instance, that justice will best be served by a remand to the trial court. For a proper resolution of this dispute, the trial court should have both the 1977 and 1979 acts before it in one trial proceeding. Upon remand, defendants may amend their answer to include the 1977 act and plaintiffs may amend their petition to attack all purported transfers of the Rider homestead to defendants. We note that defendants, in effect, admitted the invalidity of the 1979 act in their motion for summary judgment. We have considered whether defendants should now be estopped from asserting title to the Rider homestead under the 1979 act because of their allegations in their motion for summary judgment, and we have decided that the paucity of facts in the record would not substantiate a decision by this court to that effect. Therefore, on remand, defendants may still assert title under the 1979 act. On remand, any affirmative defenses not raised by the defendants’ amended answer will be waived. We note that plaintiffs may attack, by parol evidence if necessary, all purported conveyances of the Rider homestead to defendants. See, e.g., La.Civ.Code art. 2239. Because of the broad rights that the Civil Code gives forced heirs in cases of this nature, and based on our review of the record in this case, we seriously question whether this case could be decided by a summary judgment in any event.

Based on the above reasons, the judgment of the trial court is reversed and remanded for proceedings consistent with the opinion rendered by this court. All costs are assessed to defendants-appellees Steven and Susan Rider Fontenot.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Kenneth W. LONG, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, Defendant-Appellant.
    No. 84-53.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Durant, Pierce & Malone, Lawrence A. Durant, Baton Rouge, for defendant-appellant.
    Broadhurst, Brook, Mangham, Hardy & Reed, H. Dillon Murchison, New Orleans, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

This is an appeal by the State of Louisiana, Through the Department of Transportation and Development (hereafter DOTD) from a money judgment in favor of plaintiff, Kenneth W. Long.

On December 16, 1978, at approximately 1:00 p.m., plaintiff was involved in a vehicular collision on U.S. Highway 71 just south of the town of Morrow in St. Landry Parish. Plaintiff was driving a 1978 GMC truck, owned by Ryder Truck Rental, Inc., and was towing a bass boat and trailer. Plaintiff was proceeding in a northerly direction on Highway 71, which is two-laned at the point of the accident.

According to plaintiff, as he approached an “S” curve, he observed an oncoming red vehicle traveling at a high rate of speed. In order to allow the oncoming car more room to negotiate the curve, plaintiff eased his truck to the right. As plaintiff eased the truck to the right, the right wheels of the vehicle left the pavement straying onto the east shoulder. The truck and trailer immediately began to swerve as a result of this maneuver. Plaintiff attempted to reenter the highway and, in so doing, the truck suddenly shot across the highway. Somehow this caused the truck to flip over onto the driver’s side. The truck proceeded to skid along on its side until it came to rest on the west shoulder of the highway. Unavoidably, an oncoming truck collided with plaintiff’s vehicle.

A vehicle driven by Joseph Marcotte was following plaintiff’s vehicle just prior to the accident. Marcotte testified that plaintiff’s vehicle strayed onto the east shoulder of Highway 71. According to Marcotte, plaintiff attempted to re-enter the paved roadway immediately. In so doing, the truck flipped over as it came back onto the highway. Marcotte did not witness the head-on collision as plaintiff’s vehicle obscured his view. Marcotte did not recall seeing the red car encroaching into their lane of travel which plaintiff stated caused him to veer to the right. Marcotte added that plaintiff appeared to be traveling at a lawful rate of speed.

Marcotte’s testimony differed in some respects from that of plaintiff. In particular, Marcotte did not testify that plaintiff’s vehicle maneuvered a great deal on the east shoulder, but rather he stated it quickly returned to the paved roadway after straying onto the shoulder. Plaintiff, on the other hand, testified that his vehicle was sent into a number of spinning maneuvers upon encountering the east shoulder, and was, at one point, almost perpendicular to the highway before darting back across the highway.

After trial on the merits, the trial judge rendered judgment in favor of plaintiff. In his written reasons for judgment, the trial judge stated in part:

“I conclude plaintiff’s truck went onto the shoulder. This is based primarily on the testimony of Marcotte.
* * * * * *
There is no serious question that there was a defective shoulder according to the Rue {Rue v. State, Dept, of Highways, 372 So.2d 1197 (La.1979) case. With the finding that plaintiff went onto the shoulder, it must be concluded that the defect caused the loss of control. Mar-cotte related a 4 to 6-inch dropoff. The pictures tend to substantiate this. Mr. Evans also corroborated this. Marcotte also related an instantaneous return to the improved portion of the roadway. The expert Dart’s opinion about a vehicle with this wheel size being able to regain the pave without incident assumes a slow and deliberate process. Here, we have a reflex reaction which is usually extreme. Moreover, this case involved an abrupt turn back to the left or improved portion of the roadway. The loss of control after going onto the shoulder was practically unavoidable.”

On appeal, DOTD argues that a number of the factual findings of the trial judge were not consistent with the evidence presented at trial.

It is well settled that an appellate court will not disturb the factual findings of the trial judge unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Furthermore, great weight is accorded the trial judge’s evaluation of credibility. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

With these principles in mind, we will address the findings reached by the trial judge which are questioned by DOTD.

Although DOTD does not concede that the shoulder of the road was defective, it makes no serious issue on appeal regarding the trial court’s conclusion that at the point of the accident there was a four to six inch drop off between the traveled portion of the highway and the shoulder. DOTD’s principal contention is that the trial court clearly erred in concluding from the evidence that plaintiff’s vehicle strayed onto the shoulder of the road. In this connection, DOTD points to the lack of any physical evidence on the .shoulder of the road which would corroborate the Marcotte version of the maneuver of plaintiff’s vehicle. Specifically, DOTD points to the testimony of State Trooper Casey, the investigating officer, the testimony of Joseph Marcotte and the testimony of Kimball Long, plaintiff’s wife. DOTD submits that, according to the testimony of these witnesses, the east shoulder was soft on the day of the accident and if plaintiff’s vehicle had in fact strayed onto the shoulder physical evidence of his vehicle’s maneuverings would have been evident on the shoulder of the road. The trial judge found that there was insufficient evidence as to the firmness of the east shoulder on the day of the accident to conclude that a Marcotte version of the maneuver of plaintiff’s vehicle onto and off the east shoulder would have left noticeable evidence. DOTD submits this is clear error.

We have examined the testimony of these witnesses, along with that of Mr. Snider, plaintiff’s father-in-law, and find support for the trial judge’s finding that the evidence was inconclusive as to the firmness of the shoulder.

Mr. Snider and Mrs. Long visited the scene of the accident approximately twenty-four hours after its occurrence. Mr. Snider indicated that the east shoulder was hard. Mrs. Long noted, in her testimony, that the east shoulder was more soft than hard, but was not really soft. Mrs. Long could not find the right word to describe the shoulder’s condition. The same may be said regarding Trooper Casey’s testimony. He observed that the shoulder was not soft but was less than hard. Also, Mr. Mar-cotte indicated that the east shoulder was “kind of soft”.

Mr. Snider was the only witness who was unequivocal about the firmness of the shoulder. Mr. Snider found it to be hard. The other witnesses did not find the shoulder to be hard but did not find it soft either. Undoubtedly, the trial judge considered this evidence and found it to be inconclusive. We discern no clear error in this conclusion.

Another question raised by DOTD, which is related to the one discussed above, concerns the trial judge’s finding that the maneuvers of plaintiff’s vehicle based upon the testimony of Marcotte would not necessarily have left any physical evidence to indicate a straying onto the shoulder.

Although the experts, both for plaintiff and DOTD, Messrs. Evans and Dart respectively, opined that some physical evidence would probably have existed after the accident to indicate plaintiff’s vehicle leaving the paved roadway, apparently the trial court chose to disregard these opinions. We cannot say that he erred in doing so.

The only witness presented at the trial who would have had an opportunity to observe such evidence was the investigating officer, Trooper Casey. Trooper Casey testified that he found no evidence which indicated that plaintiff’s vehicle went onto the east shoulder. However, Trooper Casey stated that he did not immediately investigate the condition of the shoulder since his primary concern was to see that the injured were attended to.

Photographs taken at the accident scene clearly show vehicles detouring the accident scene by passing on the east shoulder while the injured were being extricated from the wrecked vehicles. Trooper Casey was questioned as to whether he had made observations of the east shoulder prior to the detouring vehicles tracking on it and he responded, “I think so.” Obviously, if other vehicles traversed over the shoulder where plaintiff’s vehicle went off, any evidence of his departure from the pavement, such as tire tracks, could have very well been erased. Therefore, there is support for the trial judge’s finding that even though there was a lack of physical evidence on the east shoulder to indicate where the plaintiff’s vehicle went off, it did not preclude the conclusion that plaintiff’s vehicle did stray onto the east shoulder.

Finally, DOTD asserts that the trial court erred in accepting Marcotte’s version of the incident. DOTD questions why Mar-cotte did not inform Trooper Casey, at the scene of the accident, that plaintiff’s vehicle had deviated onto the east shoulder before crossing over to the southbound lane of travel. Marcotte allegedly simply told Trooper Casey that plaintiff’s vehicle was traveling at a high rate of speed and crossed the center line into the southbound lane.

The trial judge noted, in his written reasons for judgment, that Marcotte was not questioned by Trooper Casey as to whether or not plaintiff’s vehicle had strayed onto the east shoulder. Since it did not appear that Marcotte volunteered much information at the accident scene, the trial judge did not find Marcotte’s testimony at trial to be contrary to what he told Trooper Casey, merely more complete.

DOTD points to other inconsistencies in Marcotte’s testimony which it argues the trial judge did not consider. However, we find that the trial judge did fully consider the testimony of Marcotte. The trial judge admitted that there were some minor inconsistencies in Marcotte’s testimony, yet he found no reason for Marcotte to fabricate his testimony. After careful review of the record, we cannot say that the trial judge committed manifest error in his factual findings nor should his evaluations of credibility be disturbed.

DOTD does not, on appeal, question the trial judge’s legal conclusions nor the amount awarded to plaintiff.

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    In the Matter of FILIATION OF Alice Marie Thompson JONES.
    No. 84-55.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gaha-gan, Natchitoches, for defendant-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Appellant, Alice Marie Thompson Jones, appeals a trial court dismissal of her suit in which she attempted to establish filiation by informal acknowledgment. The suit was dismissed on the basis of prescription. She contends that the prescription law found applicable by the trial court is uneon-stitutional and that, in any event, any applicable prescription was interrupted on the facts of this case. Finding that the prescription law is not unconstitutional, and finding, further, that there was no interruption, we affirm.

Alice Marie Thompson Jones was born on October 14, 1941. Phillip Thompson, Jr., the alleged parent, died intestate on July 18, 1981. His father, Phillip Thompson, Sr., died in the 1950’s. The Succession of Phillip Thompson, Sr. was opened and Charlie Thompson and Edward Thompson, brothers of Phillip Thompson, Jr., were declared their father’s sole heirs by judgment rendered on August 26, 1982. His property consisted of a house and lot in Natchi-toches. In December 1982 the Thompson brothers sold the house and lot for $12,000 to Tom and Essie Bloodworth.

On May 31, 1983, Alice Marie Thompson Jones filed suit against her alleged uncles, Charlie Thompson and Edward Thompson, claiming that, as the daughter of Phillip Thompson, Jr., she was entitled to her father’s interest in this property. In this petition, the appellant sought to prove filiation by informal acknowledgment. The Bloodworths intervened and pleaded the prescription of La.Civil Code art. 209.

Article 209 has been amended four times recently, first by Act 549 of 1980, then by Act 720 of 1981, then by Act 527 of 1982, and most recently by Act 810 of 1984. It presently reads:

“A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
“B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
“C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.
“D. The right to bring this proceeding is heritable.”

Conceding that her age, the date of death of her alleged father, and the date the suit was filed, show prescription on the face of her petition, Alice Marie Thompson Jones nevertheless argued in the trial court that (1) Civil Code art. 209 is unconstitutional for failing to give her adequate time to institute legal proceedings, and that (2) the prescription provided by Civil Code art. 209 was interrupted by the actions of Charlie and Edward Thompson when they promised and led her to believe that they were going to share the estate of Phillip Thompson, Sr. with her.

For purposes of the exception, the trial court admitted stipulations which covered all of the evidence that would have been presented by all parties in the case. This evidence included testimony that plaintiff’s uncle, Charlie Thompson, had always told appellant that after her father’s death he would see that she got her portion of any property to which her father was entitled.

The trial court rejected both the constitutional argument and the interruption of prescription contention. We find that the trial court was correct in both conclusions.

Under former Civil Code art. 209 as it was affected by Act 549 of 1980, acknowledged illegitimates were under no compulsion to sue within a time frame to establish filiation. Succession of Clivens, 426 So.2d 586 (La.1983). Under the current provisions informally acknowledged children have to prove filiation. Act 720 of 1981 gave a party against whom prescription had already accrued until September 12, 1982, to file. In the present ease the alleged parent died on July 18,1981. Thus, appellant had until September 12, 1982, to file. The grace period provision of Act 549 of 1980, which first amended article 209, was perhaps constitutionally infirm because of its ambiguities. See Succession of Clivens, supra. No such ambiguity has been pointed out, however, and we can find none, in the present version of the article created by the second amendment, Act 720 of 1981, which is applicable to the present case. The only attack on the constitutionality of the article that appellant has made is the simple assertion that it failed to give her adequate notice of her right to institute legal proceedings. She has cited no case, and we have found none, holding that a one-year grace period is a constitutionally insufficient period of time to extend the rights of persons otherwise affected by a new prescription law. The passage of a new statute of limitations giving a shorter time for the bringing of actions than existed before does not necessarily affect the remedy to such an extent as to be an unconstitutional impairment of contracts, provided a reasonable time is given for the bringing of such actions. Reichenphader v. Allstate Ins. Co., 418 So.2d 648 (La. 1982). In Reichenphader, an approximate 10 month period was deemed a reasonable time. See also Dominguez v. Travelers and Allstate Ins. Co., 415 So.2d 434 (La. App. 1st Cir.1982), writ denied 420 So.2d 174 (La.1982); Ewing v. State Farm Mut. Auto. Ins. Co., 402 So.2d 779 (La.App. 3rd Cir.1981); and Tilley v. Government Emp. Ins. Co., 396 So.2d 525 (La.App. 3rd Cir. 1981). In Tilley, supra, this court held that the Legislature by providing over ten months from the date of publication of an act creating a new prescription period until its effective date, allowed a reasonable period of time following the enactment to permit those persons affected by it to assert their claims. In the present case we find the one year grace period granted by Act 720 of 1981 a reasonable period of time to permit persons affected by article 209 to assert their claims.

Appellant’s second attack on the trial court judgment is, again, that the prescriptive period was interrupted by the promises of her uncle, Charlie Thompson, to give her her share. We have again been pointed to no authority indicating that a recognition by others of a person’s filiation constitutes an interruption of the prescriptive period provided in Article 209.

Louisiana jurisprudence has recognized a limited exception to the running of prescription where in fact and for good cause a plaintiff is unable to exercise a cause of action when it accrues; the exception is founded on the ancient civilian doctrine of contra non valentem agere nulla currit praescriptio — prescription does not run against a person unable to bring an action. Corsey v. State Dept, of Corrections, 375 So.2d 1319 (La.1979). It is on this doctrine that appellant apparently relies. Of the several categories of situations to which the principle contra non valentem applies, the following merits discussion in the present case: “Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.” See Corsey, 375 So.2d, at 1321.

Such a case was West v. Gajdzik, 425 So.2d 263 (La.App. 3rd Cir.1982), writ denied 428 So.2d 475 (La.1983), where this court said:

“The doctrine of contra non valentem has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other ill practices) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiff’s delay in bringing suit is not wilful or the result of his own negligence. Nathan v. Carter, 372 So.2d 560 (La.1979); Cartwright v. Chrysler Cor poration, supra [255 La. 597, 232 So.2d 285 (1970)]; Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916); Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957); Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951). The equitable nature of the circumstances in each individual case has determined the applicability of the doctrine. Nathan v. Carter, supra; Dagen-hart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1 Cir.1970).”

We will accept as a fact that the plaintiff relied on the representations made by her uncle, Charlie Thompson, in the terms of the stipulation that he “always promised that after her father, Phillip Thompson, Jr., died that he would see that she got her portion of any property that her father was entitled to.” Her alleged father died on July 18, 1981. In March 1983 she learned that her uncles had allegedly sold property that formerly belonged to Phillip Thompson, Sr. and had not given her any sum of money representing her father’s portion of the succession of her grandfather. It was not until then that she sued to establish her filiation.

We are unable to see how the doctrine of contra non valentem can apply to these facts. In the present suit we are not concerned with the succession proceeding initiated by Charles and Edward Thompson, but rather a filiation proceeding initiated by plaintiff to show her filiation to the deceased Phillip Thompson, Jr. Although the uncle’s representation may have tended to hinder or impede plaintiff in seeking her rights in the succession proceeding, we find no reason why such a representation would hinder or impede her from initiating her filiation action. The filiation proceeding is a separate and distinct cause of action from the succession proceeding.

Further, even assuming that such a promise made by Charlie Thompson could interrupt the prescriptive period under Civil Code art. 209, the representation made by the uncle, which the plaintiff alleges she relied upon, appears to have been made prior to her alleged father’s death. Her alleged father died on July 18, 1981, and this present action was not initiated until May 31, 1983. Therefore the prescriptive period had still expired at the date of filing suit.

For the foregoing reasons the judgment of the district court is affirmed, appellant to pay costs of this appeal.

AFFIRMED.


text:
    FAUSTINA PIPE LINE COMPANY, Plaintiff-Appellee, v. LEVERT-ST. JOHN, INC., et al., Defendants-Appellants.
    No. 84-61.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 12, 1985.

      Moise Dennery, Donald H. McDaniel, New Orleans, for defendants-appellants.
    Michael R. Mangham and Elizabeth Jane Hastings, Lafayette, Earl H. Willis, St. Martinville, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The property owner and its lessees appeal certain rulings by the trial court on an expropriation of a natural gas pipeline right-of-way through their agricultural lands. Appellants complain that the pipeline company failed to negotiate in good faith with them before proceeding to expropriation, that the company failed to prove the necessity of the right-of-way as to its location and extent, and that the court erred in failing to make an award for certain claimed damages. We affirm.

Faustina Pipe Line Company filed a petition on April 29, 1983, against Levert-St. John, Inc., Murphy Oubre, Russell Albert, and Curry Albert to expropriate a pipeline servitude and right-of-way and a valve site. Levert-St. John, Inc. is the owner of the property and the other defendants are sugar cane, rice, and crawfish lessees of a portion of the property sought to be expropriated.

All defendants filed dilatory exceptions of prematurity and vagueness, and peremptory exceptions of no right of action and no cause of action. The exceptions raised the question of whether the company had negotiated in good faith as a prerequisite to bringing the expropriation action, and also the question of the necessity for the expropriation. Defendant-tenants answered the petition and filed a reconventional demand for compensation for the property along with attorney’s fees, severance damages, and consequential damages occasioned by the expropriation. Levert-St. John, Inc., the owner, answered the petition and also filed a reconventional demand for compensation for the property sought to be expropriated along with other claimed losses.

After trial on the issue of good faith negotiations, the court found that plaintiff had not negotiated in good faith with the tenants and they were dismissed from the lawsuit on motion of the plaintiff. It was thereafter stipulated by the parties that the tenants would be reinstated as defendants in the lawsuit. The trial court found that plaintiff had negotiated in good faith with Levert-St. John, Inc.

After trial on the merits, the trial court found that Faustina was entitled to expropriate the right-of-way and servitude for the pipeline as prayed for. The trial court also found that defendants failed to prove damages resulting from lost mill profits or severance losses from damage to off right-of-way property. In accordance with the stipulations, plaintiff was ordered to pay compensation to defendants for the expropriation and for damages caused to the right-of-way property by the expropriation.

A number of stipulations were made by the parties before testimony was received by the court. It was stipulated that there was a public purpose for the pipeline, and that there was a necessary purpose in that the pipeline was required to transport natural gas. There was no stipulation that the proposed route, depth of the pipe, or width of the right-of-way were necessary, these being disputed issues at the trial.

It was stipulated that the value of the timber to be taken by the proposed expropriation was $9,420. The value of the land for the permanent right-of-way and temporary work space was agreed to be $52,258. Damage to rice and crawfish property was stipulated at $600 per acre. Finally it was stipulated that plaintiff would return the land to its present condition as near as was possible, including V-ditches along the edges of the right-of-way.

Additional stipulations were made on the second day of the trial. The tenants were reinstated as defendants after they had been previously dismissed. The necessary purpose of a proposed valve site was agreed to. Damage to the sugar cane crop within the right-of-way was stipulated to be $792.41 per acre. Damages for land restoration within the right-of-way was stipulated at $163.75 per acre which figure was composed of $100 per acre for land leveling and $63.75 for weed control.

Damage to Mr. Murphy Oubre’s rice and crawfish operation within the right-of-way was stipulated to be $6,120. Damage to the Alberts, who were in partnership with each other, was stipulated to be $6,852, also only for damages within the right of way. Damages to Levert-St. John, Inc., within the right-of-way, excluding actual property expropriation, were agreed to be $69,217.

Damages were incurred by the defendants when the crew surveying the proposed route crossed the property. These damages were stipulated to be $816 to Levert-St. John, Inc., $477 to the Alberts, and $300. to Mr. Oubre. Finally, the parties stipulated that should the court find that lost mill profits were compensable, the damages would be $107.15 per acre for Levert-St. John, Inc., and $128.87 per acre for the Alberts. All stipulations were for damages occurring within the right-of-way only.

The issues on appeal are: (1) Did the plaintiff negotiate in good faith with Le-vert-St. John, Inc. before bringing the expropriation suit? (2) Did the tenants of Levert-St. John, Inc. waive the issue of good faith negotiations by voluntarily agreeing to the stipulation reinstituting them in the suit after their dismissal on the grounds that plaintiff had failed to negotiate with them in good faith? (3) Did the trial court err in finding that the location, width and depth of the plaintiff’s pipeline was necessary? (4) Did the trial court err in failing to award damages to defendants for off right-of-way damages caused by the pipeline? (5) Did the trial court err in failing to award damages for lost mill profits?

(1)

NEGOTIATIONS WITH LEVERT-ST. JOHN

Negotiation is a prerequisite to bringing suit for expropriation. LSA-R.S. 19:2. The requirement is met when the expropriating authority makes a good faith attempt to acquire the property by conventional agreement. Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App. 3rd Cir.1969), writ refused, 255 La. 145, 229 So.2d 731 (1970). A determination of good faith negotiations can only be made on the circumstances of the individual case and essentially calls for a factual determination by the trial court that is entitled to great weight on appeal. Southern Natural Gas Co. v. Poland, 406 So.2d 657 (La.App. 2nd Cir.1981), writ denied, 412 So.2d 86 (La. 1982), cert, denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982).

Faustina Pipe Line Company began negotiations with Levert-St. John, Inc. in late summer or early autumn of 1982 when Earl H. Willis, Faustina’s attorney, phoned Raymon Billeaud to obtain permission to survey the property. The proposed right-of-way agreement and plats showing the location of the pipeline were sent to Bil-leaud along with a request that Billeaud submit any special clauses to be inserted in the agreement. Billeaud requested that a registered surveyor prepare a plat showing the proposed route and the boundary of the Levert-St. John property line. Several meetings were held between the parties, and correspondence was exchanged between the parties on numerous occasions. Faustina made several offers through its agents to Billeaud which were refused because Billeaud demanded that the pipeline be placed south of the existing pipeline. Faustina’s agents unsuccessfully attempted to explain why the pipeline could not be placed south of the existing pipeline.

The trial court in its reasons for ruling on the issue of good faith negotiations between plaintiff and Levert-St. John, Inc. stated that there was no problem whatsoever in finding that good faith negotiations did in fact occur. There were many phone calls and meetings between the parties in an effort to reach agreement before the suit was filed.

There is ample evidence in the record that plaintiff met the requirement of good faith in negotiations with the owner, and this assignment of error is therefore without merit.

(2)

NEGOTIATIONS WITH TENANTS

The trial court found that the pipeline company failed to negotiate in good faith with the lessees and maintained the exception of prematurity. Promptly upon the announcement of that ruling, Faustina dismissed these defendants from the expropriation suit. On the next day, however, the tenants, having reconsidered, elected to get back into the case, and under a stipulation agreed to by all parties, they were reinsti-tuted as parties defendant. The final judgment named them as the beneficiaries of earlier stipulations covering crop damages.

Under these circumstances we deem it unnecessary to review the trial court’s determination that Faustina had not negotiated with the lessees in good faith before the suit was filed. This Circuit, in Interstate Oil Pipe Line Company v. Friedman, 137 So.2d 700 (La.App. 3rd Cir.1962) and Texas Gas Transmission Corporation v. Pierce, 192 So.2d 561 (La.App. 3rd Cir. 1966), has held that the failure to negotiate in good faith before filing an expropriation suit gives rise to the dilatory exception of prematurity. Their voluntary reinstitution as defendants, in order to benefit from the stipulations regarding damages (these stipulations were themselves the result of negotiations), amounted to a waiver of their objection of prematurity. Therefore, this assignment of error has no merit.

(3)

NECESSITY OF THE LOCATION, WIDTH AND DEPTH OF PIPELINE

Article 1, Sec. 4, of the Louisiana Constitution of 1974 reads in pertinent part, as follows:

“Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.”

Although the parties stipulated that the proposed pipeline was to be built for a public purpose, it was not agreed that there was a necessary purpose. Arguing that within the necessary purpose test, are the location, depth, and size of the permanent right-of-way, and that, in meeting this test, pipeline companies have a heavier burden under the new constitution than before, appellants urge us to reverse the trial court, and to hold that the Faustina pipeline is not necessary because its location could be altered to the south side of the existing Dow pipeline, thereby resulting in it being only partially on appellants’ property and closer to the south boundary line of the property.

There was substantial testimony in the case regarding this issue. Bill Delaney, plaintiff’s superintendent of construction, was accepted by the court as a construction expert in the field of natural gas pipelines and pipeline route selection. Delaney was responsible for the surveying, mapping and selection of the proposed pipeline route. He testified that in his opinion the route, selected was best from both an engineering and an economical standpoint, and that it was unsound to place the pipeline south of the existing Dow pipeline. Delaney gave several reasons why the pipeline could not be built south of the Dow line. The line would have to cross a headland road, a grass airstrip, and a solid waste dump. There was insufficient space between the Dow line and a bridge. Were the pipeline placed between the Dow line and the bridge, the bridge might topple over, and the Dow line might side wash down the coulee over which the bridge and Dow line cross. Just past the coulee is a large barrow ditch which empties into the coulee. Were the line placed across the barrow ditch, the dirt covering the pipeline would wash into the coulee, forcing the plaintiff to continually haul in dirt to recover the line. A stand of timber would have to be destroyed and several ditches with culverts ranging from two to six feet in diameter would have to be crossed. The culverts would have to be removed to place the line and would then have to be replaced. An irrigation canal and a lift station would have to be crossed. Boundary markers would have to be crossed which might lead to future litigation over property lines. Delaney testified that Federal Department of Transportation regulations do not specify a specific width for permanent rights-of-way, but rather state that the right-of-way must be wide enough to allow room for proper maintenance of the line. Delaney was of the opinion that a thirty foot right-of-way was needed for proper maintenance of the line.

Lawrence C. Levert, III, defendant’s general manager, testified about his experiences concerning problems caused by pipeline depth. He stated that subsoiling operations are frequently performed at depths up to 28 inches, and that V-ditching with a motor patrol frequently is performed at a depth of 30 inches. He stated that rice irrigation ditches are sometimes dug substantially deeper than 30 inches. Levert testified that pipelines have caused problems when relocating ditches. Levert stated that conversion of soybean land to sugar cane production requires the creation of lateral ditches, while the conversion of soybean or sugar cane land to rice production requires the construction of a well or a large ditch to bring in water from a natural water source.

Bill Delaney testified that the proposed pipeline would be placed at a depth of 36 inches except where the pipeline crosses existing ditches, in which case the pipeline would be placed at a depth of 48 inches. He stated that the pipe would be weighted to create a negative buoyancy in areas where Malcolm Richard, plaintiff’s manager of pipeline engineering, determines that weighting is necessary to prevent the pipe from rising. Delaney stated that he has experienced uncovered pipelines.

In Louisiana Resources Co. v. Stream, 351 So.2d 517 (La.App. 3rd Cir.1977) we stated that:

“It is well established in the jurisprudence of this state that a delegation of the power of eminent domain gives the grantee of the power the right to determine the location and route of the improvement and of the land to be taken for it. Such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred by the statute. Evidence that another route is feasible is not sufficient to show that the grantee’s selection constitutes bad faith, oppression, or abuse of power.”

and:

“[1] The proposition that the location of property to be expropriated is within the sound discretion of the expropriator who acts reasonably and in good faith cannot be questioned. See Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901 (1953); City of Westwego v. Marrero Land & Imp. Association, 221 La. 564, 59 So.2d 885 (1952); Central Louisiana Electric Company v. Covington & St. Tammany Land and Improvement Company, 131 So.2d 369 (La.App. 1st Cir.1961); United Gas Pipe Line Company v. New Orleans Terminal Company, 156 So.2d 297 (La.App. 4th Cir.1963); and Texas Eastern Transmission Corporation v. Bowie Lumber Company, 176 So.2d 735 (La.App. 1st Cir.1965).”

In no way can it be said that Fausti-na Pipe Line Company acted other than in good faith in selecting the location, depth, and width of the permanent right-of-way. Plaintiff made every reasonable effort to determine whether the pipeline might feasibly be placed south of the existing Dow pipeline. Plaintiff’s only fault, if it was a fault, was the failure to comply with Bil-leaud’s request for a survey of defendant’s southern boundary. Defendant had the survey made personally, and this survey showed that there was not enough room along the entire boundary to construct the pipeline south of the Dow pipeline. Defendant offered no evidence to rebut plaintiff’s evidence that a 30 foot permanent right-of-way was necessary for proper maintenance of the pipeline.

Depth of the pipeline is a more serious problem, due to the testimony of defendant’s witnesses that pipelines create problems when relocating ditches. However, defendant’s witnesses’ testimony concerning the depth of their ordinary agricultural operations indicate that the average depth of the pipeline of 36 inches, and 48 inches where the line crosses existing ditches, would pose no problems with the pipeline.

We agree with the trial court that Faustina met its burden in proving a necessary purpose in the location, depth, and size of the permanent right-of-way.

(4)

OFF RIGHT-OF-WAY DAMAGES

Defendant presented several expert witnesses to testify concerning damages that defendant would suffer off of the right-of-way because of the construction of the pipeline. These witnesses testified that the entire cuts through which the pipeline ran would have to be releveled because of ridges created by the soil displaced by the pipe in the trench. This releveling would require the destruction of the cane stubble in the affected cuts. Testimony was also elicited that when the soil displaced by the pipe is spread over the right-of-way, fertile topsoil becomes mixed with inferior subsoil, creating a chemical and physical imbalance which causes decreased yields. It was testified that fertilizers can correct the chemical imbalance, but not the changed physical characteristics. Lawrence C. Levert, III, testified that heavy agricultural equipment bogs down when crossing the trench.

Plaintiff presented Dr. Charles Cain, a partner in Gulf Coast Agricultural Associates and a consulting agronomist, as a rebuttal witness to defendants’ evidence concerning off right-of-way damages. He was accepted as an expert agronomist in land restoration. Dr. Cain disagreed with Mr. Lauden and Dr. Ricaud concerning the necessity of releveling and replanting the entire cut through which a pipeline is constructed. He testified that spreading the soil displaced by the pipe over the 90 foot right-of-way would result in an increased height of only one-half inch, and that quarter drains placed on the high side of the right-of-way would prevent drainage problems in the affected cuts.

Dr. Cain recommended filling the pipeline trench only when there is no water in the trench to prevent the surface over the trench from settling three to four inches below the surrounding surface. He testified that settling of the trench would retard drainage within the right-of-way. He also testified that trench settlement would always occur absent perfect conditions. The recommended quarter drains, however, would prevent off right-of-way damage. Dr. Cain stated that he has had no experience in installing quarter drains.

Dr. Cain testified that spreading the subsoil unearthed by the trench over the entire right-of-way would have an undetectable effect on the productivity of the soil within the right-of-way as the one-half inch layer of subsoil would be mixed with topsoil in normal disking operations. He stated that the normal land leveling procedures followed at the end of each crop cycle would alleviate any drainage problems within the right-of-way caused by the displaced soil. He also testified that he has never seen a cut of sugar cane abandoned because of pipeline construction through the cut.

Defendants’ damages within the right-of-way were stipulated to at trial, and are not at issue. The trial court accepted the opinion of Dr. Cain that there would be no loss in crop production outside the right-of-way, and that defendants failed to prove off right-of-way damages. We find no error in this factual determination.

(5)

LOST MILL PROFITS

Raymon E. Billeaud testified concerning defendants’ affiliation with the St. Martin Sugar Cooperative and the effect of the relationship on defendants’ business. Defendants pledge the sugar cane produced on the property to the Co-op. The Co-op pays defendant 60 percent of the value of the sugar produced. The Co-op retains 40 percent of the value of the produced sugar to pay its operating and processing expenses. Any income remaining after the payment of expenses is allocated to the producer in proportion to the raw product produced by each producer. This allocation is a book entry which is called an equity. The Co-op is not a taxable entity. A producer must report his share of each year’s equity as income on his tax return. Should operating expenses exceed 40 percent of the value of the sugar produced, the producer reports his proportion as a loss on his tax return.

Billeaud testified that he had been a member of the Co-op since its inception in 1974. Only once did the Co-op make a cash distribution to its members. He testified that were a member to withdraw from the Co-op, he would receive a “negotiable instrument” for his share. He had no knowledge of any members ever withdrawing from the Co-op, and was unsure whether a withdrawing member might receive cash for his share. Defendant does carry its equity share on its books as an asset.

The trial court found that defendant failed to prove any damages from lost mill profits. Raymon Billeaud stated that defendant had only once received a cash distribution from the Co-op, and that he was unsure whether defendant’s equity in the Co-op would ever mature into an asset convertible into cash. Any decrease in defendant’s equity in the Co-op caused by the construction of the pipeline would most probably be negligible. We find no error in this fact determination.

For these reasons, the judgment of the trial court is affirmed, appellants to pay the costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Alfred Joseph THOMAS, et al., Plaintiffs-Appellees, v. Bertha B. SMITH, et al., Defendants-Appellants.
    No. 84-69.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      J. Marvin Montgomery, Baton Rouge, for defendants-appellants.

      Wilford Carter, Lake Charles, for plaintiffs-appellees.
    Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, Randy Fuerst, M. Joy Clemons, Lake Charles, for defendants-appel-lees.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

This is a paternity suit brought by Alfred Thomas and Sarah Diane Dotson against Bertha Smith, who is the widow of the plaintiffs’ alleged biological father. The defendant denies that her deceased husband is the biological father of the plaintiffs. Furthermore, the defendant excepted on the ground that the plaintiffs have no right of action because the ex-husband of the plaintiffs’ biological mother, Earlie Shepard, is their presumptive father. The trial court held that the plaintiffs have the right to seek filiation and that the biological relationship was proven by clear and convincing evidence. The defendant perfected this devolutive appeal.

The appellants present three principal arguments: 1) That the plaintiffs have no right of action to seek filiation to the decedent because they are already the legitimate children of Earlie Shepard and her ex-husband by operation of La.C.C. art. 184; 2) That the trial court erred in concluding that the plaintiffs sustained their burden of proving paternity by clear and convincing evidence; and 3) That the trial court erred in denying the defendants’ application for a new trial.

The appellant argues that the plaintiffs have no right to seek illegitimate filiation to the decedent because they already have legitimate status as the children of Earlie and David Shepard who have long since been divorced. The record indicates that Sarah Dotson was born on September 1, 1948 and that Alfred Thomas was born on August 7, 1950. Also, Earlie Shepard, who is the mother of the plaintiffs, was divorced from David Shepard on March 1, 1950. Sarah Dotson is considered by the law to be the legitimate issue of the marriage between Earlie and David Shepard through the operation of La.C.C. art. 184. La.C.C. art. 184 states that the husband of the mother is presumed to be the father of all children conceived during the marriage. As Sarah Dotson’s birth occurred during her mother’s marriage, this article provides the presumption that David Shepard is her father. Through the application of La.C.C. art. 185, Alfred Thomas is presumed to have been conceived during the marriage of Earlie and David Shepard because he was born within three hundred days after the judgment of divorce. Therefore, Alfred Thomas is presumed to be the son of David Shepard because he is presumed to have been conceived while Mr. Shepard was married to his mother. In short, both of the plaintiffs are presumed to be the children of David Shepard.

The appellant contends that this legitimate status precludes the plaintiffs from seeking illegitimate filiation to the decedent. In support of his argument, the appellant advances a well conceived argument that the jurisprudence which affords the right to seek paternity under these circumstances is in error. The crux of the appellants’ argument is that the Louisiana Supreme Court incorrectly applied Federal Jurisprudence on the Equal Protection Clause of the Federal Constitution to Louisiana Statutes dealing with the classification of illegitimates and their rights. The appellant contends that Equal Protection is satisfied as long as adulterous offspring are afforded the rights of legitimate offspring; as in this case where allegedly adulterous offspring are nonetheless entitled to legitimate status and are accordingly granted the same rights with respect to their respective parent. The appellants further argue that because equal protection is satisfied the implied constraints of La.C.C. art. 209 preclude persons with legitimate status from seeking illegitimate filiation to another person.

La.C.C. art. 209 does not specifically preclude this type of action but many arguments have been advanced that contend that the latest amendment to this article implicitly precludes legitimates from seeking illegitimate paternity. A brief review of the legislative history helps in explaining the argument.

In 1980 the Legislature passed Act 549 amending Art. 209 of Louisiana Civil Code to read in pertinent part as follows:

“Art. 209. Methods of proving filiation.
1. An illegitimate child may be entitled to a rebuttable presumption of filiation under the provisions of this Article. Or any child may establish filiation, regardless of the circumstances of conception, by a civil proceeding instituted by the child or on his behalf in the parish of his birth, or other proper venue as provided by law, within the time limitation prescribed in this Article.”

(emphasis added)

This article clearly confers the right, on any person regardless of his status as legitimate or illegitimate, to seek the establishment of filiation. Therefore, under this article the plaintiffs in the instant case are clearly entitled to bring the paternity action. However, Art. 209 was amended once again by Act 720 of 1981. This Act was approved by the Governor on July 23, 1981, and was published in the Official Journal of this State on August 11, 1981. After this amendment Art. 209 reads as follows:

“A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
B. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
C. The right to bring this proceeding is heritable.”

A persuasive argument is advanced by Prof. Katherine Spaht of the Louisiana State University Law Center in 42 La.Law Review 403. Prof. Spaht argues that in Act 720 of 1981, the legislature implicitly precluded children of legitimate filiation from seeking illegitimate filiation by deleting the explicit language in the pre-amendment that conferred right to seek filiation “regardless of the circumstances surrounding conception”. The appellant cites Prof. Spaht’s Law Review article as authority for the argument that the plaintiffs in the instant case have no right of action in this ease and that the trial court erred in holding otherwise.

It is to be noted that the plaintiffs filed their original petition on May 11, 1981 and an amended petition on June 12, 1981; clearly before the effective date of Act 720 on July 23, 1981. Therefore Act 549 of 1980 is to be applied in deciding this case. Act 720 of 1981 has a prospective application only because it is substantive in nature. Fontenot v. Thierry, 422 So.2d 586 (La.App. 3rd Cir.1982), writ denied 427 So.2d 868 (La.1983). The language of Act 549 of 1980 clearly provides that any person can seek filiation “regardless of the circumstances of conception”. Thus the plaintiffs in the instant case have the right to seek the establishment of their filiation to the decedent.

There is also a substantial body of jurisprudence as authority for the position that a person can seek filiation regardless of the circumstances of conception. The watershed case is Warren v. Richard, 296 So.2d 813 (La.1974), in which the Louisiana Supreme Court held that an illegitimate child could recover for wrongful death of its biological father even though, at the same time, she was also the legitimate child of another man according to La.C.C. art. 184. The progeny of this case has extended this right to establish illegitimate filiation notwithstanding legitimate status vis-a-vis presumptive father to other areas of the law. In a relatively recent decision, the Louisiana Supreme Court, in Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982), made the following pronouncement:

“It is argued that this mother has a legal husband. Her marital status is irrelevant except for any weight it may have at trial in proving or disproving filiation. ‘[I]t is the biological relationship and dependency which is determinative of the child’s rights in these cases, and not the classification into which the child is placed by the statutory law of this State.’ Warren v. Richard, 296 So.2d 813 at 817 (La., 1974).”

This jurisprudential position is clear; the trend of the jurisprudence is to allow the true parentage of an individual to be established, if such can be accomplished. Succession of Levy, 428 So.2d 904 (La.App. 1st Cir.1983). Therefore, in addition to the dictates of the applicable codal provision which provides the plaintiffs with the right to bring this action, there is substantial jurisprudential authority for providing this right as well. Accordingly the trial court correctly overruled the defendant’s peremptory exception of no right of action.

The appellants’ next assignment of error concerns the sufficiency of evidence used as the basis for the trial court’s factual conclusion in light of the more strict standard of clear and convincing evidence. La.C.C. art. 209 provides that a child must prove filiation to a deceased parent with clear and convincing evidence. The 1982 amendment to Art. 209 made the provision for the clear and convincing standard when a deceased parent is involved. This amendment is to have retroactive application because it is evidentiary and remedial in nature. La.C.C. art. 8, Fontenot v. Thierry, supra; State Through H. & H. Resources Admin, v. Essex, 427 So.2d 71 (La.App. 4th Cir.1983), writ denied, 430 So.2d 82 (La.1983). Therefore, the applicable standard of proof in the instant case is clear and convincing evidence as opposed to a preponderance of the evidence or beyond a reasonable doubt.

An informal acknowledgement must be of a continuous, habitual, and unequivocal nature and of sufficient frequency that there can be little doubt that the alleged father truly believes himself to be the father of the child. IMC Exploration Co. v. Henderson, 419 So.2d 490 (La.App. 2nd Cir.1982). The appellant contends that the plaintiffs failed to prove clearly and convincingly that the decedent continuously and habitually acknowledged the plaintiffs as his children and that the basis of the trial court’s decision was the testimony of Earlie Shepard, whose credibility, he contends, is subject to substantial doubt. In its written reasons for judgment, the trial court stated:

“Plaintiffs have produced substantial evidence to prove their filiation to Alfred Smith. Not only did he repeatedly and readily acknowledge to them that he was their father, but he told other members of the community the same thing. He arrranged for them to purchase school supplies at his expense. He made similar arrangements with the shoe repair shop, telling the proprietors these were his children. He supplied other of their needs and sent cards and messages on holidays and special occasions acknowledging his paternity. Maurice Tynes, an attorney in Lake Charles, was consulted with a view to providing for them in the event of his death and they were identified to Mr. Tynes as his children. On occasion when Alfred Thomas had problems with law enforcement people, Alfred Smith went to see Frank Salter, the then District Attorney, and sought help, clearly identifying the younger Alfred as his son.
Earlie Thomas Shepherd [sic] has added her testimony to the rest, stating that petitioners were the result of unions between her and Alfred Smith and that she had sexual relations with no one except Alfred Smith during the period when both children were conceived. There is also in evidence the obituary which appeared in the newspaper on the occasion of Alfred Smith's death and a printed card containing an obituary and the “Order of Service” for the funeral. Both of these were prepared by Luberta Smith and both name petitioners as surviving children of Alfred Smith.
This Court finds that the evidence clearly and convincingly proves that petitioners are the son and daughter of Alfred Smith and Earlie Thomas Shepherd [sic] ...”

The trial court’s finding of an informal acknowledgement is a factual determination. If there is a reasonable factual basis for the trial judge's conclusion regarding informal acknowledgement, then his conclusions should not be disturbed on appeal. Succession of Matte, 346 So.2d 1345 (La.App. 3rd Cir.1977); State v. Jefferson, 448 So.2d 907 (La.App. 3rd Cir. 1984). After reviewing the record and the trial court’s reason for judgment we conclude that there was a reasonable factual basis for the trial court’s conclusion notwithstanding the stricter burden of proof. The record is abundant with the testimony of credible sources that Mr. Smith considered the plaintiffs to be his children. Several witnesses testified that the decedent explicitly told them that the plaintiffs were his children. Although many of the declarations of the decedent were admissible hearsay meriting minimal consideration, the substantial body of this testimony accumulates clear and convincing weight. Even without the testimony of Earlie Shepard the factual conclusions of the judge withstand the strict clear and convincing standard. After reviewing the reasons for judgment it is clear that the trial court carefully reviewed the evidence and its credibility before reaching its factual conclusion. The trial court’s factual conclusion that the plaintiffs clearly and convincingly proved themselves to be the illegitimate children of Mr. Smith is amply supported by the record and will therefore not be disturbed on this appeal.

Finally, the appellant contends that the trial court erred in refusing to grant the defendant’s request for a new trial. A new trial must be granted based on newly discovered evidence where, (1) such evidence is not merely cumulative, (2) it would tend to change the results of the case, and (3) could not, with due diligence, have been obtained before or during the trial. Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3rd Cir.1974). Subsequent to the trial the appellant obtained a copy of Alfred Thomas’s birth certificate which had David Shepard listed as the father. A listing of paternity on a birth certificate is prima facie proof of such paternity. La. R.S. 40:42 The appellant contends that this certificate was obtained through due diligence but not before the trial because of the plaintiffs deceit in responding to interrogatories. This newly acquired evidence satisfies the first and third pre-requisites to be satisfied for a new trial, but appellant fails to adequately demonstrate how this birth certificate would have changed the outcome of the case. It must be remembered that the listing of paternity on a birth certificate is only rebuttable prima facie evidence. After reviewing the record we conclude that this one item of evidence would not have rebutted the substantial body of evidence to the contrary. The birth certificate would not have changed the outcome of the case. The defendant’s request for a new trial was properly denied.

For the foregoing reasons, the judgment of the trial court is affirmed. The defendant-appellant is assessed with the costs of this appeal.

AFFIRMED.

      . Subsequent amendments are not relevant to the issues presented on this appeal.


author: DOMENGEAUX, Judge.

text:
    Linda Moreau COX, Plaintiff-Appellee, v. Bennie Lee COX, Defendant-Appellant.
    No. 84-77.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Granted March 22, 1985.
    Burnett, Sutton, Walker & Callaway, Boddy Sutton, Shreveport, for defendant-appellant.
    Robert J. Elliott and J. Marc Lampert, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

This appeal arises from a judgment increasing child support from $600.00 per month to $800.00 per month.

Appellant-husband and appellee-wife were granted a judgment of divorce on July 8, 1980, which judgment also awarded custody of the parties’ four (4) minor children to the appellee, and further ordered the appellant to pay $750.00 per month for child support.

Subsequently, on March 16, 1981, a judgment was signed reducing the child support payments from $750.00 per month to $600.00 per month.

On September 22, 1983, the appellee filed a rule nisi seeking an increase in child support. The rule was tried on October 10, 1983, resulting in an order which compelled appellant to pay monthly child support in the sum of $200.00 per child for a total monthly child support payment of $800.00.

On appeal appellant contends that the order increasing child support was erroneously rendered, as there was insufficient evidence presented at trial to prove a change in the circumstances of the parties from the time of the original award.

The record of this case does not contain a transcript of the testimony adduced at the trial of the rule nisi. For whatever reason, the testimony was not recorded and transcribed.

Nor does the record contain a narrative of facts agreed to by the parties. Further, it does not contain a narrative of fact prepared by the trial judge.

The appellant suggests that in the absence of a transcript or a narrative of facts, the Court of Appeal can render an opinion based upon an “otherwise complete record which includes pleadings and affidavits of income and expenditures”. He cites Western Lands Company v. Lindsay, 307 So.2d 412 (La.App. 4th Cir.1975) for the proposition that a Court of Appeal may make factual determinations based upon exhibits filed in the record when there is neither a transcript nor a written narrative of the facts.

We distinguish Western Lands, supra. That case was before the trial court to confirm a default judgment annulling a tax sale. The trial judge therein rendered a written opinion in which he alluded to certain exhibits tendered by plaintiff to support his claim, such as the act of sale, a conveyance certificate showing the tax sale, a letter from the Deputy Tax Collector referring to the dates of advertisement for the tax sale, and a copy of the tax deed concerning notice, etc. The appellate court concluded there was sufficient evidence in the record to consider the appeal. Factually, that case is quite dissimilar to our present situation. Western Lands involved a tax sale, which has statutorily required time periods relative to the advertisement of the sale and the notice which must be given to the tax debtor prior to the sale. The appellate court was able to determine from the exhibits that the tax sale was invalid because it was not held in conformity with the statutory requisites.

In the case at hand the proceedings were adversarial in nature. A trial was held and the parties testified in conjunction with the affidavits. During the course of the trial the district judge observed more than the cold, hard, impersonal documents which were entered into evidence. He observed the demeanor and testimony of the witnesses and parties as they testified. The district judge’s factual determination in this case was not made solely on the basis of sworn affidavits, but rather, after observing and considering all of the evidence before him.

The factual situation before this Court precludes us from overruling the district court solely on the basis of exhibits and pleadings filed into the record. We cannot make a factual determination by merely considering affidavits and pleadings and ignoring the evidence and testimony which obviously was adduced at trial.

Although we feel that Western Lands, supra, is readily distinguishable from the facts in the case at hand, nevertheless to the extent that it may differ from the established jurisprudence which we follow herein, we would disagree with it.

“Under the plain provision of our Code of Civil Procedure, Articles 2130 and 2131, a party may require the clerk to cause the testimony to be taken down in writing, and this transcript shall serve as the statement of facts of the case (Article 2130). If the testimony of the witnesses has not been taken down in writing, the appellant must request the other party to join with him in a written and signed narrative of facts. And, in case of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts which shall be conclusive. (Article 2131).
When testimony has been taken in the trial court, it should be recorded and introduced in the record on appeal. If it has not been taken down in writing, the burden is upon appellant to furnish, as part of the record on appeal, either an agreed statement of facts entered into between the parties or a narrative of facts by the judge.”

Succession of Walker, 288 So.2d 328 (La.1974). (Citations omitted).

The record does not contain a transcript of the trial proceedings, a written narrative of facts agreed to by the parties, or a written narrative of facts prepared by the trial judge. Under such circumstances and considering that the respective claims of the parties present factual issues, this Court must presume that the judgment of the district court increasing the award of child support is correct and supported by competent evidence. Vaughan v. Fair, 337 So.2d 675 (La.App. 3rd Cir.1976), and Gardemal v. MCM Industries, Inc., 398 So.2d 144 (La.App. 3rd Cir.1981), writ denied, 401 So.2d 994 (La.1981).

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

AFFIRMED.

      . Subsequent to the decision of the district court the appellant appealed. Appellant did not file his brief with this Court within the delay period prescribed by the uniform rules of the Courts of Appeal. Several days after appellant’s brief was due he moved this Court for a stay of further proceeding and for a written narrative of facts. We denied appellant's motion. Appellant applied for writs of certiorari and review to the Louisiana Supreme Court. The High Court stayed all proceedings in this matter for 30 days in order for appellant to obtain a written narrative of facts and file his brief with this Court. See Linda Moreau Cox v. Bennie Lee Cox, 449 So.2d 1028 (La.1984).

      . This case presents an opportunity for the Supreme Court to elucidate upon the consequences visited upon an appellant in the situation where his appeal does not conform with the requisites of Louisiana Code of Civil Procedure Articles 2130 and 2131.
      This Circuit has followed the rule that where Articles 2130 and 2131 have not been complied with there is a presumption that the district court's factual determination is correct.

      In Succession of Walker, supra, the Supreme Court held that noncompliance with Articles 2130 and 2131 results in there being nothing for appellate review. However, in so holding, the High Court cited cases which held that nonconformity results in a presumption of the correctness of the district court decision.
      Although this anomalous hiatal semantic does not present earth shaking complications in our jurisprudence, it should be clarified, hence we would ask of the High Court: Should the result be reached "because there is a presumption that the district court's factual determination is correct” or "because there is nothing for appellate review"?