author: JOHN S. COVINGTON, Judge

text:
    Brenda BOURNE v. REIN CHRYSLER-PLYMOUTH, INC. and Chrysler Corporation.
    No. 83 CA 1380.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Rehearing Denied Feb. 21, 1985.

      Robert J. Caluda, New Orleans, for Brenda Bourne.
    Richard Greed, Jr. of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for Chrysler Corp.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge

pro tem-pore:

This is a suit for reduction of the purchase price of an automobile. Judgment was rendered against Chrysler Corporation, the manufacturer, and it appealed sus-pensively, and in the alternative, devolu-tively the August 27, 1983 Judgment awarding Brenda Bourne a refund of the $2,490.37 down payment, $1,518.96 representing installment payments, $5,000 for her mental anguish and inconvenience, and $3,000 for attorney’s fees.

Chrysler Credit Corporation’s suit for ex-ecutory process resulted in the judicial sale of the automobile before Ms. Bourne filed her quanti minoris suit against the seller and the manufacturer.

ASSIGNMENTS OF ERROR

Defendant-appellant, Chrysler Corporation (Chrysler), assigns as errors by the District Court (1) the awarding of damages for inconvenience and mental anguish “which is clearly not recoverable in this type of action” and (2) awarding an excessive amount of attorney’s fees.

ISSUES

The issues presented for our resolution are (1) whether damages for inconvenience and mental anguish were properly awarded under the facts peculiar to the instant ease, (2) whether an award of $3,000 attorney’s fees was proper in this case, and (3) whether plaintiff-appellee is entitled to an award of additional attorney’s fees incurred in order to protect her rights on appeal of the lower court judgment.

FACTS

Brenda Bourne purchased a new 1981 Chrysler Cordoba automobile on February 27, 1981 from defendant Rein Chrysler-Plymouth, Inc. (Rein), for a total deferred sales price of $14,641.85. Rein’s salesman did not disclose to Ms. Bourne that the automobile had any mechanical defects which would render it “either absolutely useless, or its use so inconvenient and imperfect” to give rise to the legal presumption that she “would not have purchased it” if she had “known of the vice.” C.C. art. 2520. Ms. Bourne accepted delivery of the car on Friday, February 27, 1981 after Rein’s service department had closed for the weekend. While enroute to her home, immediately after accepting delivery, Ms. Bourne noticed the sluggish performance of the motor. During the weekend the engine “died” several times while Ms. Bourne was driving so she took the vehicle to the service department on Monday morning so that Rein’s service technicians could resolve the engine stalling problem but they did not attempt any repairs that day. She returned the next day and was informed to bring the car back on Thursday because that would be the earliest time the repairs could be made. Between Tuesday morning and Thursday morning, when she returned the car to the service department as instructed, the horn was activated spontaneously and had to be disconnected to silence it. The technicians set the timing so high the car “would get away from” Ms. Bourne and she was frightened by its engine racing tendencies. After the horn was “fixed” on Thursday it did not function at all. The malfunctioning headlights were also repaired at that time. Within a few days after Ms. Bourne bought the car a part of the console and the door panel fell off and had to be reglued. During the second week following the date of the purchase the vinyl roof “was starting to bubble” so Ms. Bourne returned the car to the service department where it remained two days because of the many problems to be dealt with. During that two day stay at Rein’s the timing was reset but after the resetting the car began stalling out again.

From the very outset the cruise control never functioned. Early in April, 1981 the air pollution pump became partially disconnected and it drilled a hole through the sheet metal of the hood. About one month later the air pollution pump and pulley assembly were replaced but the hole in the hood was not repaired. Late in June, 1981 the air conditioner malfunctioned while Ms. Bourne was driving to New Orleans from Ponchatoula and “all of a sudden the water came pouring in over” her feet; the water was coming from “in the front under the dash” and even after she turned off the air conditioner “it still kept coming”; the water flooded the interior of the car to a depth “up past the shoe”. The flooding ruined the carpet and resulted in an offensive odor which did not dissipate during the two months Ms. Bourne ceased driving the car because Rein refused to replace the carpet and because she was “already terrified of the car because of the pump” disengaging and drilling a hole in the hood.

Chrysler issued three recall notices requesting owners of 1981 Chrysler Cordobas to take their autos to the dealers to correct specified mechanical problems, including engine sluggishness and the pump.

The increasing frequency of taking the automobile to Rein for mechanical corrections made her the butt of much laughter and unkind jokes by Rein’s service personnel and some other personnel. The many returns for repairs, with repeated failures in her endeavor to have the vehicle so it would provide her safe and reliable transportation, caused Ms. Bourne to suffer great embarrassment, humiliation, and inconvenience frqm the day she bought the car and accepted its delivery up to the time she stopped driving the car in early July, 1981. She was afraid to drive the car because of its shabby and unsafe condition.

Although Ms. Bourne continued to pay the monthly installments to Chrysler Credit Corporation (Chrysler Credit) and was not delinquent with them, Chrysler Credit filed suit to seize and sell the car under executo-ry process. Upon receipt of petition for the writ of seizure and sale, Ms. Bourne retained counsel to enjoin both the seizure and sale in order to preserve her credit reputation and undo some of the embarrassment and humiliation she suffered when the car was seized at her work place. The executory proceedings damaged Ms. Bourne’s credit and she paid cash for a used car.

REDUCTION IN PURCHASE PRICE AND DAMAGES

In the instant case the lower court held that the sale could not be rescinded because Ms. Bourne no longer owned or possessed the vehicle. C.C. art. 2530 states that “If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.” Multiple defects can collectively form the basis of a redhibi-tory action even though many of the defects are minor or have been repaired. Cangelosi v. Mclnnis-Peterson Chevrolet, Inc., 373 So.2d 1346 (La.App. 1st Cir.1979); Davidson v. New Roads Motor Co., Inc., 385 So.2d 319, 321 (La.App. 1st Cir.1980). Latent defects appearing well after the sale can be a basis for redhibition if they are not the normal result of ordinary use. Davidson v. New Roads Motor Co., Inc., supra.

Plaintiff proved a pattern of defects in the vehicle which rendered its use inconvenient and imperfect. The accumulation of all the vices, established by a preponderance of the evidence, convinces us that plaintiff would have been entitled to a total rescission of the sale if she had been in a position to return the automobile at the time of the trial of this action. J.B. Beaird Co., Inc. v. Burris Bros. Limited, 216 La. 655, 44 So.2d 693 (1950); Stratton-Bald-win Co., Inc. v. Brown, 343 So.2d 292, 297 (La.App. 1st Cir.1977). The automobile was sold at judicial sale and Ms. Bourne is unable to return the redhibitorily defective automobile to Rein. Therefore, plaintiff is entitled to a reduction in purchase price and recovery of expenses. Stratton-Bald-win Co., Inc. v. Brown, supra.

The District Court correctly stated in its written “Opinion” that total rescission of the sale was not possible because plaintiff no longer owned or possessed the vehicle when the suit for quanti minoris was tried. Stating that “it is abundently clear, however, that plaintiff is entitled to some relief” the court declared her “entitled to a refund of the down payment of $2,490.37 and of the amount paid as installments” which totaled $1,518.96 and further declared she was “entitled to ... $5,000.00 for inconvenience and mental anguish, and an additional sum of $3,000.00 as attorney fees.”

The proper amount of price reduction a purchaser is entitled to in a quanti minoris action is the difference between the actual selling price and the price a reasonable buyer and seller would have agreed upon if they had both known of the defects. Lusk v. Durham Pontiac-Cadillac, Inc., 459 So.2d 1277, 1280 (La.App. 1st Cir.1984); Leonard v. Daigle Pontiac-Buick-GMC, Inc., 413 So.2d 577 (La.App. 1st Cir.1982); and Wade v. Mclnnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975).

Defendant-appellant, Chrysler, does not argue in its brief that the automobile did not have the accumulation of vices which we hold to constitute redhibitory defects within the intention of C.C. art. 2520.

Chrysler simply argues in its brief that the lower court committed reversible error by awarding plaintiff damages for mental anguish and inconvenience. Chrysler relies on Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976) as authority for its premise that because the record is devoid of any suggestion that Ms. Bourne “purchased the vehicle for any type of intellectual enjoyment” the lower court improperly awarded her non-pecuniary damages in her quanti minoris action based on C.C. art. 2520 et seq.

Meador, supra, was not a suit for redhi-bition or quanti minoris. The litigation in Meador had its origin in defendant’s alleged excessive delay in completing repairs to an automobile brought to defendant to repair collision damage. The contractual obligation undertaken by defendant in Mea-dor was the obligation to repair the automobile in a workmanlike manner in as short a period as possible under the total facts and circumstances. The Supreme Court held that C.C. art. 1934(3), dealing with damages generally, precludes awarding non-pecuniary damages in a breach of contract context unless intellectual enjoyment is a principal object of the contract, and that non-pecuniary damages, when allowed, are limited to those which compensate for, or are directly related to, nonful-fillment of the intellectual object.

The Meador rule is no longer applied inflexibly in contract actions. Cele v. Mar-key, 387 So.2d 1162 (La.1980); Pike v. Stephens Imports, Inc., 448 So.2d 738, 743 (La.App. 4th Cir.1984).

Philippe v. Browning Arms Co., 395 So.2d 310, 318 (La.1981), on rehearing, stated the duty of a manufacturer as being “the obligation to produce a product which is reasonably safe for its intended use” and that “[bjreach of this obligation gives rise to a cause of action in favor of the purchaser of the product not only to demand the return of the purchase price, but also, because the manufacturer is presumed to know of defects in its products, to demand all damages caused by the defect and reasonable attorney’s fees.”

The court, in Philippe, supra, reasoned that “[tjhere is no compelling reason to require a person injured by a defective product he has purchased to proceed either in contract or in tort. The seller’s (manufacturer’s) act of delivering a defective thing, when he knows of the defect, gives rise to delictual, as well as contractual, liability, (citations omitted).” The Supreme Court, per Lemmon, J., held “that the right and the extent of recovery by the purchaser of a thing against the seller or manufacturer is governed by the codal articles providing for responsibility in the seller-purchaser relationship, as applied through C.C. art. 2315. Since C.C. art. 2545 clearly provides for recovery of damages caused by a defective product and for reasonable attorney’s fees, we conclude the court of appeal correctly made such award.”

In reaching the conclusion stated above, the court in Philippe reasoned that: “The appropriate standard of conduct in this case is derived from the codal articles on sales, since the cause of action of the purchaser of a defective thing may be enforced against both the seller and the manufacturer of a thing”; “[o]ne of the obligations imposed on the seller (manufacturer) is the warranty against hidden defects of the thing sold”; and the manufacturer, imputed with knowledge of defects in his products, is liable not only for the return of the price and the expenses of the sale, but “also (is) answerable for damages and reasonable attorney’s fees.” Philippe, supra, at 318.

Philippe v. Browning Arms Co., supra, in our opinion, is authority for the proposition that the purchaser who sustains damages because he or she purchased a redhibitorily defective product is entitled to be compensated for all provable damages, including inconvenience and mental anguish, if the causation link is established. Philippe, supra, mandates judicial repudiation of the blanket exclusion of damages for inconvenience and mental anguish in redhibition and quanti minoris actions. To knowingly sell a redhibitorily defective product, such knowledge being imputed to a manufacturer, is to do a tortious act. It is well settled that a tortfeasor’s victim who sustains mental anguish as a result of the action or inaction of the tortfeasor is entitled to be compensated for it.

While the Trial Judge did not assign detailed written reasons, he obviously believed that plaintiff’s uncontradicted evidence established that plaintiff in fact suffered mental anguish, in addition to considerable inconvenience, because of the multiplicity of vices or defects cumulatively constituting grounds for redhibition, which were never resolved satisfactorily enough to defeat plaintiff’s suit for quanti minoris. Factual conclusions of a trier of fact are entitled to great weight and should not be disturbed on review absent manifest error, especially when based on evaluation of credibility of live testimony. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We have concluded that the obvious findings of fact made by the lower court are supported by the record; his findings therefore are not clearly wrong.

ATTORNEY’S FEES

Defendant-appellant, Chrysler, contends that the award of $3,000 as attorney’s fees by the District Court is excessive and should be reduced. Plaintiff-ap-pellee urges that the award is not unreasonable and this court should not disturb the considerable discretion the trial court has in making an award of attorney's fees. Additionally, plaintiff-appellee urges us to award her an attorney’s fee of $500 for services rendered in this appeal to protect her interests. The trial judge has much discretion in determining the amount of attorney’s fees.

In Conlay v. Houston General Insurance Co., 370 So.2d 196 (La.App. 3rd Cir. 1979), the court stated that “an increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal.” 370 So.2d 196, 201.

In this case the return date was December 10, 1983 and the record was lodged on December 12, 1983. Under the unambiguous provisions of C.C.P. art. 2133, unless an appellee answers the appeal “not later than fifteen days after the return day or the lodging of the record whichever is later” the appellate court cannot consider appellee’s request to have the lower court’s judgment modified or request damages against the appellant. Defendant-appellant and plaintiff-appellee filed their briefs within the time allotted by Rule 2-12.7 of the Uniform Rules-Court of Appeal. Plaintiff-appellee did not answer the appeal.

Plaintiff-appellee’s request for additional attorney’s fees for services rendered in this appeal is made solely in her brief which was filed on January 13, 1984, more than fifteen days “after the ... lodging of the record”. Therefore, even if we were to construe plaintiff-appellee’s request via brief as an answer to the appeal, which we specifically do not, it obviously was not timely filed, having been filed 32 days after the record was lodged in this court. Because this procedural requirement has not been met, we are not at liberty to grant the increase prayed for even though the increase is merited under the facts. Gour v. Daray Motor Co., Inc., 373 So.2d 571, 579 (La.App. 3rd Cir.1979); Commercial Union Insurance Co. v. Melikyan, 430 So.2d 1217,1223-1224 (La.App. 1st Cir.1983); and Robertson v. Coleman Oldsmobile, Inc., 451 So.2d 1323, 1327 (La.App. 1st Cir.1984).

All costs of court in the District Court and on appeal are assessed against defendant-appellant, Chrysler Corporation.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Ambrose J. MATHERNE v. LIVINGSTON PARISH POLICE JURY, Morrison Assurance Co., Inc.
    No. CA 83 1391.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Rehearing Denied Feb. 21, 1985.
    Writ Denied March 8, 1985.

      Charles R. Moore and June E. Delinger, Baton Rouge, for plaintiff-second appellant.
    Eugene Groves, Baton Rouge, for defendant-first appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

This is a worker’s compensation suit by Ambrose J. Matherne against the Livingston Parish Police Jury and its insurer, Morrison Assurance Co., Inc. seeking unpaid benefits, penalties and attorney’s fees. From a judgment in favor of plaintiff, defendants appeal.

On April 16, 1981, while employed by the Livingston Parish Police Jury, plaintiff stepped in a hole injuring his right knee. Defendant began paying disability benefits from the date of injury until June of 1982, when it began to pay compensation based on a schedule disability. Defendant based this change in benefits upon a medical report from the treating physician, Dr. Bolton, assigning a 10% disability of plaintiff’s right leg. Benefits were later resumed when plaintiff underwent arthroscopic surgery. Benefits for total disability were again cut off in December, 1982 until February, 1983. Benefits were again resumed when plaintiff underwent surgery to repair cartilage and ligament damage to the knee.

After the first “gap” period when plaintiff was being paid schedule benefits, plaintiff filed suit to bring the payments up to date. During the pendency of the suit defendant again discontinued disability payments resulting in the second “gap” period. These gaps in payments total $2,300.00. Neither party disputes the amount which would be due plaintiff under total disability.

Both defendants and plaintiff filed appeals from the trial court’s judgment.

Defendants’ assignments of error include:

(1) the trial court erred in failing to sustain defendants’ exception of prematurity;
(2) the trial court erred in finding plaintiff temporarily-totally disabled;
(3) the trial court erred in finding defendants arbitrary and capricious in terminating plaintiff’s benefits and in casting defendants in judgment for penalties, attorney’s fees, and costs.

Plaintiff’s assignments of error include:

(1) the trial court erred in classifying plaintiff as temporarily-totally disabled rather than permanently-totally disabled.
(2) the trial court erred in awarding only $1,000.00 in attorney’s fees.

DEFENDANTS’ ASSIGNMENT OF ERROR NO. 1

In this assignment defendant argues the trial judge erred in not sustaining its exception of prematurity. Defendant also asserts that the trial court erred in not considering the exception of prematurity before the trial on the merits.

Defendant filed an exception of prematurity in the trial court. The trial judge decided to go ahead with trial of the matter on the merits choosing to decide the exception of prematurity at some later point. La.R.S. 23:1314 provides that in an employee’s compensation suit an exception of prematurity shall be determined by the court before proceeding with the hearing of the other issues involved, [emphasis added] This same issue was present before the Supreme Court of Louisiana in Patton v. Silvey Companies, 395 So.2d 722 (La.1981). This was a worker’s compensation case which involved a discontinuance of workmen’s compensation benefits. The defendant similarly filed an exception of prematurity in the trial court. The trial court reserved ruling on the defendant’s exception until trial on the merits. The court found the plaintiff to be permanently and totally disabled, that the termination of benefits had been arbitrary and capricious, and that plaintiff’s suit had not been filed prematurely. The court of appeal reversed the trial court’s ruling, sustaining the exception of prematurity and dismissing plaintiff’s petition.

The Supreme Court reversed the court of appeal and in a footnote, stated,

“Of course a ruling with respect to the exception of prematurity would more properly have been made prior to the court’s proceeding with other matters, as R.S. 23:1314 mandates as much. The error is moot, however, in view of our finding that the result of the court’s ruling, though made at a belated point in the trial, was correct.”

This result was followed in the case of Fredericks v. Associated Indemnity Corporation, 401 So.2d 575 (La.App. 3rd Cir. 1981). This case also involved a worker’s compensation case where compensation payments were discontinued. The trial judge referred an exception of prematurity to the merits. The court of appeal stated that the ruling on the exception of prematurity should have been made prior to trial on the merits according to La.R.S. 23:1314. The court further stated that, although it was error for the trial court to proceed as it did, the error was not such as to warrant a reversal in light of its opinion that the exception of prematurity should have been overruled.

We are of the opinion in the case at bar that the exception of prematurity should have been overruled under the facts of this case.

The factors in determining the validity of an exception of prematurity must be determined according to the facts and circumstances which existed at the time suit was filed. Vidrine v. Argonout-South-west Insurance Company, 166 So.2d 287 (La.App. 3d Cir.1964). ■

In determining whether a compensation suit is premature, factors to be considered are the reasonableness of the decision in ceasing to make payments; the promptness in resuming them; and the manifestation of a desire to cooperate in making payments which are due the claimant. Id; Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La. App. 3d Cir.1975).

The trial court ruled that defendant, Morrison Assurance, was arbitrary and capricious in terminating plaintiffs disability benefits. After a review of the record and evidence we cannot say the trial judge was clearly in error. The trial court considered the medical report of the treating physician, Dr. Bolton, to Morrison Assurance as not conclusive evidence that plaintiff no longer was disabled. The report merely stated that he recommends plaintiff try to seek a job that he can do because he was laid off his previous job. The report further stated that plaintiff continued to have pain in the knee, and that he was to see the patient six weeks later. At best this report is ambiguous as to whether plaintiff was no longer disabled by his injury.

Dr. Bolton filed a second medical report on plaintiffs progress. Again, he stated plaintiff continued to have pain in the knee, and he had no further medical treatment which to offer plaintiff. Dr. Bolton ended his report by placing a possible 10% eventual disability and that he was to see plaintiff again in eight weeks. This report also was considered inconclusive by the trial court. Injured employees may not be denied compensation on the basis of inconclusive medical reports. Hutchinson v. T.G. & Y. Stores Company, 412 So.2d 708 (La.App. 3d Cir.1982); Collins v. McDonald’s Corporation, 411 So.2d 611 (La. App. 1st Cir.1982).

Defendant was unreasonable in reevaluating plaintiffs disability status based on the medical reports of Dr. Bolton without considering the context in which they were written, namely that plaintiff continued to have pain; that plaintiff was continuing treatment under a physician’s care; and the demands of plaintiffs particular occupation as a laborer and truck driver.

This assignment of error is without merit.

DEFENDANTS’ ASSIGNMENT OF ERROR NO. 2 AND PLAINTIFF’S ASSIGNMENT OF ERROR NO. 1

In these assignments defendants contend the trial court erred in finding plaintiff temporarily-totally disabled due to his injury, and plaintiff contends the disability should have been classified as permanent-total disability.

After plaintiff sustained injury to his knee it was necessary that he undergo surgery on three different occasions and remain under a doctor’s care for an extensive period of time. The two gaps in disability payments, which are at the center of this proceeding, occurred prior to the time when plaintiff’s treating physician recommended the third surgery. This third surgery was an attempt to correct what was originally diagnosed as a badly sprained knee, when in fact it was discovered the cartilage surrounding the knee was detached requiring major reconstruction of the cartilage and ligaments.

The trial judge was not clearly in error in concluding plaintiff was totally disabled during the periods when disability was discontinued by defendant.

We are of the opinion, however, the trial court erred in determining plaintiff was temporarily-totally disabled at the time of trial. The jurisprudence is to the effect that in Louisiana when a court is convinced that the disability is total, but cannot determine the duration of the disability, the court must classify the disability as permanent. Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La. 1976); Celestin v. Fireman’s Fund Insurance Company, 430 So.2d 1263 (La.App. 1st Cir.1983); Fredericks v. Associated Indemnity Corporation, 401 So.2d 575 (La. App. 3d Cir.1982).

Therefore, the trial court’s finding is amended to classify plaintiffs injury as permanent-total disability.

DEFENDANTS’ ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial judge erred in finding defendants arbitrary and capricious in terminating plaintiff’s disability benefits and in casting them in judgment for penalties and attorney’s fees.

The issue of penalties and attorney’s fees in terminating plaintiff’s payments is closely related to the determination of the issue of the prematurity. We previously determined that the physician’s reports on plaintiff were somewhat ambiguous. Therefore, plaintiff was entitled to an award of penalties and attorney’s fees on the basis that defendant’s actions in terminating plaintiff’s disability benefits constituted arbitrary, capricious, and unreasonable behavior.

This assignment of error is without merit.

PLAINTIFF’S ASSIGNMENT OF ERROR NO. 2

In this assignment of error plaintiff asserts the trial court erred in awarding only $1000.00 in attorney’s fees.

Plaintiff has cited to this court several cases in which attorney’s fees have been awarded in excess of $3000.00. However, in this instance we do not find the trial judge was clearly in error by awarding $1000.00. The entire case consisted of a trial of short duration. The evidence presented by plaintiff consisted of two depositions and two witnesses which included plaintiff and his wife. Absent a showing that the trial judge was clearly in error the action of the trial court will be upheld.

This assignment of error is without merit.

Therefore, for the above and foregoing reasons, the judgment of the trial court is amended to classify plaintiff as permanently-totally disabled, and as amended is affirmed. Defendants are to pay all costs of this proceeding,

AMENDED AND AFFIRMED.


author: CARTER, Judge.

text:
    FIDELITY & DEPOSIT COMPANY OF MARYLAND v. CLOY CONSTRUCTION COMPANY, INC., et al. COLEMAN OLDSMOBILE, INC. v. CLOY CONSTRUCTION COMPANY, INC., et al.
    Nos. 83 CA 1428, 83 CA 1429.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Writ Denied March 8, 1985.

      David S. Bell, Baton Rouge, for plaintiff-appellee Fidelity & Deposit Co. of Md.
    Martin C. Schroeder, Jr., Baton. Rouge, for defendant-appellant Cloy Const. Co., Inc., et al.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellee Coleman Oldsmobile, Inc.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

The sole issue on this appeal is when did compensation take place between the parties.

These consolidated suits resulted from two contracts between Cloy Construction Company, Inc. (Cloy), contractor, Coleman Oldsmobile, Inc. (Coleman), owner, and Fidelity & Deposit Company of Maryland (Fidelity & Deposit), surety for Cloy. The first contract was for the construction of the present Coleman facility, and the second contract was an oral agreement, under which Cloy agreed to perform fill and grading work on the lot adjacent to the construction.

Initially, Fidelity & Deposit filed suit against Cloy to recover funds which it had been required to expend as Cloy’s surety. Coleman later instituted a suit against Cloy for damages for defective design and construction of the parking lot of the Coleman facility, and Cloy reconvened to recover the retainage due on the construction contract and other damages.

After the original trial on the merits, the trial court rendered judgment on December 30, 1981, in pertinent part as follows: (1) in favor of Cloy and Fidelity & Deposit against Coleman for $32,565.00 (retainage on the construction contract) with legal interest from June 12, 1974, and (2) in favor of Coleman against Cloy and Fidelity & Deposit for $14,800.00 plus 25% thereon (cost of repairs for defective design and construction of parking lot), bringing the total of the judgment in favor of Coleman to $18,500.00.

On appeal, this court in Fid. & Dep. Co. of Md. v. Cloy Const. Co., 425 So.2d 887 (La.App. 1st Cir.1983), amended the judgment of the trial court in favor of Cloy and Fidelity & Deposit and against Coleman for $32,565.00 to $32,545.00. The Court of Appeal also determined that the judgment was to bear interest from November 19, 1974. In all other pertinent respects, the judgment of the trial court was affirmed.

Subsequent to that judgment, however, a dispute arose between the litigants as to when the $18,500.00 judgment in favor of Coleman against Cloy would be set-off against the $32,545.00 judgment in favor of Cloy against Coleman. The litigants were unable to resolve the dispute amicably, and on April 28, 1983, Cloy and Coleman filed a joint motion in the district court, which provides as follows:

1.
Judgment was signed herein December 30, 1981. Court of Appeal, First Circuit, State of Louisiana, rendered judgment January 3, 1983, on appeals of movers from said judgment which is final.
2.
Movers disagree over the date compensation or offset occurred in the amount of $18,500.00 and hence over the amount Coleman Oldsmobile, Inc., owes Cloy Construction Company, Inc.
3.
Cloy Construction Company, Inc., asserts the defense of res judicata to the claims of Coleman Oldsmobile, Inc.
WHEREFORE, movers pray that this matter be set for hearing, and for judgment deciding this dispute.

The matter was again submitted to the trial court, and the trial court rendered judgment decreeing that compensation or “offset” occurred November 19, 1974. Cloy perfected this suspensive appeal assigning two specifications of error, namely, the trial court erred in not sustaining Cloy’s exception of res judicata and, in holding that compensation occurred November 19, 1974.

RES JUDICATA

Cloy contends that since the trial court judgment of December 30, 1981, which was affirmed by the Court of Appeal on January 4, 1983, awarded Coleman $18,500.00 but was silent as to interest, that silence amounted to a rejection of interest. Cloy reasons that because Coleman’s claim for legal interest was denied, the issue of interest in this proceeding is res judicata.

The issue before us is not whether the $18,500.00 judgment draws interest from November 19, 1974, but whether set-off occurred on November 19, 1974, or on December 30, 1981, (the date of the judgment of the trial court). Although it is clear from the trial judge’s written reasons for judgment that he intended set-off to occur in the formal judgment, as well as the decision of the First Circuit in Fid. & Dep. Co. of Md. v. Cloy Const. Co., supra, do not clearly provide such.

Therefore, the doctrine of res judi-cata is clearly inapplicable because the issue of when compensation took effect has not been decided by any of the previous judgments rendered herein.

SET-OFF or COMPENSATION

Cloy contends that its judgment for $32,-545.00, which bears interest from November 19, 1974, should not be set-off against the December 30, 1981, judgment for $18,-500.00 in favor of Coleman until the date of that judgment. Cloy reasons that set-off could not be effected prior to the date of the trial court judgment which found that Cloy was liable to Coleman for its defective workmanship, and this judgment was rendered on December 30, 1981. Cloy, therefore, concludes that it is entitled to the $32,545.00 plus interest from November 19, 1974, until December 30, 1981, at which point Coleman’s judgment for $18,500.00 is set-off against that amount and that the remaining balance owed to Cloy should bear interest from December 30,1981, until paid. On the other hand, Coleman contends that the $18,500.00 award in favor of Coleman should be applied as a set-off against the $32,545.00 claim of Cloy effective November 19, 1974, leaving a balance due of $14,045.00, which would draw interest from November 19, 1974.

Louisiana statutory law and jurisprudence recognize three kinds of set-off or compensation: legal, which is effected by operation of law; contractual, which is effected by the will of the parties; and, judicial, which is effected by the courts. Tolbird v. Cooper, 243 La. 306, 143 So.2d 80 (La.1962).

Louisiana Civil Code articles 2207, 2208 and 2209 envision legal compensation taking place only when the debts are equally due, liquidated, and demandable. Therefore, legal compensation is not applicable in the case sub judice, since the value of Coleman’s claim against Cloy for the defective work was unascertainable until the trial court’s judgment of December 30, 1981. Cloy’s claim for retainage under the written contract was determinable and due on November 19, 1974. However, the inquiry does not end with the determination that legal compensation is inapplicable.

Judicial compensation takes place when a court decides two parties are mutually indebted to each other and adjusts the amounts owed in fixing the judgment. In Tolbird, supra, 143 So.2d at p. 84, Planiol is quoted as follows:

“There is judicial compensation when a debtor who is sued for the execution of a debt files a reconventional demand against the plaintiff pleading a credit in opposition to the original demand, which credit does not have or fulfill the conditions required for legal compensation. It may be, for example, that the credit claimed in the reconventional demand is not liquidated; or it may be the result of damages caused by the plaintiff to the defendant — damages that must be evaluated in order to fix the amount of the indemnity due. But the judge, having jurisdiction of the demand, can make such evaluation, and by the same judgment fix the amount of the damages and effect the compensation. The original defendant will simply be ordered to pay the excess over his own debt; it may even happen that he may obtain judgment for the difference, if the indemnity which is due him exceeds what he owes the plaintiff.” Planiol, Traité élémentair de droit civil (La.State Law Inst. tr. 1959), n° 562, p. 325.

In the instant case, the court found that debts were owed by the respective parties to each other arising from mutual contractual relationships and effected judicial compensation as between the parties wherein two payments were voided. Therefore, Coleman was entitled to subtract from the retainage the damages due as a result of defective workmanship. The trial court clearly envisioned such a result in the written reasons for judgment. The trial court correctly concluded that although Cloy was entitled to receive the full retainage as of November 19, 1974, when applying judicial compensation, this amount was nevertheless subject to a reduction at that time for defective workmanship. See Henson v. Gonzalez, 326 So.2d 396 (La.App. 1st Cir.1976).

For the above reasons, the judgment of the trial court is affirmed. Appellant is cast for the costs of this appeal.

AFFIRMED.

APPENDIX A

NINETEENTH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

Fidelity & Deposit Company of Maryland Versus Cloy Construction Company, Inc., et al

No. 209,133

Division “D” CONSOLIDATED WITH Coleman Oldsmobile, Inc. Versus Cloy Construction Company, Inc., et al

No. 247,928

Division “D”

JUDGMENT

These lawsuits came on for trial pursuant to assignment. The Court having considered the entire record in this matter, the testimony of the witnesses, the evidence introduced and for written reasons for judgment filed December 15, 1981 herein, IT IS ORDERED, ADJUDGED AND DECREED:

There is judgment herein in favor of Paul F. Stewart, Inc., Paul F. Stewart, individually, and CNA Insurance Company dismissing with prejudice the claims of Coleman Oldsmobile, Inc., asserted in No. 247,928 and,

There is judgment herein in favor of Coleman Oldsmobile, Inc., and against Cloy Construction Company, Inc., and Fidelity and Deposit Company of Maryland, in soli-do, in the amount of $14,800.00 plus 25% thereon; and

There is judgment herein in favor of Cloy Construction Company, Inc., and Fidelity and Deposit Company of Maryland and against Coleman Oldsmobile, Inc., in the amount of $32,565.00 together with legal interest thereon from June 12, 1974; and

There is judgment herein in favor of Cloy Construction Company, Inc., and against Coleman Oldsmobile, Inc., in the amount of $24,496.50 together with legal interest thereon from date of judicial demand; and

There is judgment herein in favor of Fidelity and Deposit Company of Maryland and against Cloy Construction Company, Inc., decreeing that the judgment herein rendered in favor of Fidelity and Deposit Company of Maryland and against Coleman Oldsmobile, Inc. is superior in rank to and shall prime and be paid in preference and priority to any judgment herein in favor of Cloy Construction Company, Inc., and against Coleman Oldsmobile, Inc., and, there is judgment in favor of Fidelity and Deposit Company of Maryland and against Cloy Construction Company, Inc., Charles C. Cloy General Contractors, Inc., Charles Larry Cloy and W.M. Cloy, in solido, in the sum of $39,982.62 together with legal interest thereon from date of judicial demand, and the right of Fidelity and Deposit Company of Maryland against Cloy Construction Company, Inc., Charles C. Cloy General Contractors, Inc., Charles Larry Cloy and W.M. Cloy, in solido, to its damages for costs and expenses in these lawsuits are reserved to it.

Expert witness fees are fixed as follows: Jerry Householder — $200.00; Raul Gonzales — $200.00; Dean McKee — $200.00; James Clary — $150.00 and David Brenson —$150.00.

All costs herein are taxed equally to Cloy Construction Company, Inc., and Coleman Oldsmobile, Inc.

Judgment, read and signed this 30th day of December, 1981 in Baton Rouge, Louisiana.

/s/ Melvin A. Shortess JUDGE, 19th JUDICIAL DISTRICT COURT

APPENDIX B

WRITTEN REASONS FOR JUDGMENT

These consolidated suits involving multiple issues between multiple parties arise out of a contract between Cloy Construction Company, Inc., (Cloy) and Coleman Oldsmobile, Inc. (Coleman), dated July 21, 1972, for the construction of the present Coleman Oldsmobile site at the corner of Goodwood Boulevard and Airline Highway in Baton Rouge, pursuant to plans and specifications prepared by Paul F. Stewart (Stewart), an architect who had been retained by Coleman for that purpose. Plans and specifications (Coleman 3 and 4) were modified orally and in writing on several different occasions as construction progressed. Cloy’s performance was bonded by the Fidelity and Deposit Company of Maryland (F & D). Said bond and contract were duly recorded in accordance with the Louisiana Private Works Act.

A certificate of substantial completion was signed by Stewart, Cloy and Coleman on January 23, 1974 (F & D 2). A punch list was attached to this certificate. On June 12, 1974, Coleman and Cloy entered into an agreement (F & D 3) wherein Coleman released $75,000.00 of retainage to Cloy in return for certain considerations. At that time the balance due Cloy under the terms of the contract was $32,565.00 (Joint Exhibit 1). On November 10, 1974, Stewart wrote Cloy with a copy to Coleman, indicating that all work required under the punch list had now been completed. Cloy has never been paid that balance. Cloy also seeks, under a separate oral contract, $24,496.50 against Coleman for certain fill which was spread on the lot owned by Coleman just adjacent to the construction. Finally, Cloy seeks damages.

All materialmen and potential third party claimants were fully satisfied by Cloy and/or F & D, its surety, so no liens were filed. F & D, under the terms of its indemnity agreement with Cloy, seeks certain funds which it was required to expend amounting to $39,982.62 (See Joint Stipulation of Facts between F & D and Cloy filed on the day of trial.)

Coleman seeks damages against Cloy, F & D and Stewart for alleged defective design and construction. The primary complaint is over the deficiencies in the concrete driveways, parking lots and curbing. Other minor defects include air conditioning and ceiling repairs.

The contract (F & D 1) indicated the contract price was to be $980,989.00. After written and oral adjustments, the total cost escalated to $1,066,466.00. Coleman testified that Milton Womack Construction Company was initially asked to do the job but Womack wanted about $300,000.00 more than Cloy; that he never had a budget for the job; that nickels and dimes never bothered him. The physical facts indicate to the contrary. Coleman runs a very successful business, and nickels and dimes are always important to businessmen. It is obvious that Coleman was trying to get a quality job at the very lowest price. With that thought in mind, addendum No. 4 was entered into between the parties (Stewart 5). Therein, in item 3, wire mesh was deleted in the driving and parking areas, and slab thickness was increased to five inches. Stewart testified that this was a cost-saving measure. The evidence convinced the court that it was one of many cost-saving alternatives adopted during construction.

Several experts testified to the effect this change order may have had on the structural integrity of the finished lot. Jerry Householder, an engineer, testified for Coleman and felt the mesh should not have been deleted because (1) it helps control cracking, (2) it helps keep the slab together after cracking, and (3) it gives added strength. His core samples indicated that the average thickness of the finished slab was 4.6 inches; he testified that one-quarter of an inch is the maximum downside tolerance so the lot was below specifications. He also faulted the curbing. The plans and specifications provided for ⅝-inch steel dowels on 18-inch centers, with the curbs to be cast in place. Dar-weld C was used to bond the curbing, which is not a true epoxy. Householder’s opinion was that the plans and specifications for the curbing were not followed and that Coleman did not get a good substitute. Householder admitted that a five-inch slab would support more load than a four-inch slab with wire mesh, but felt that the wire mesh was important because it helped control cracking and held the slab together after cracking.

Lawrence Farris, a contractor who did work south of the area in question, testified that he patched about twelve areas of the driveway because of cracking and curling. His last work was done approximately three years ago. He felt that improper compaction was the cause of many of the failures. On cross examination he admitted that in deposition he stated he had patched about eight areas.

Dean McKee testified on behalf of the defendants, and said the concrete lots were done in twenty foot squares with redwood dividers of either Vs or ¾6 width; that 20 x 20 squares was stretching it but recognized that it was fairly prevalent in the area; that the optimum was 10 x 15 but the economics of the situation governed; that the five-inch thickness did not disturb him nor did the elimination of the mesh; that mesh did not do much good because most contractors do not position it properly during the pour; that the cracks he observed on October 17, 1980, were primarily in the middle of sections; that he also saw some corner cracking which he described as the curl effect; that the cracking and curling were 80% of the cause of any problems in this case; that his tests indicated that the concrete had good strength; that the major reason for cracks would be improper joints and poor compaction; that most of the curbing was satisfactory; that he did not know much about Darweld C and had never used it.

James Clary, a civil engineer, also testified for the defendants and said that 20 X 20 joints were common in commercial parking lots in this area; that a 4.7 average thickness is generally acceptable when specifications call for five inches; that the design was within accepted standards; that he found crackage due to shrinkage and curling, probably caused by settlement;

that he had designed lots without mesh and said it was an acceptable practice; that the lot was comparable to other lots in the area; that if it had been built with four inches and mesh, he would have expected the same results; that he never used Dar-weld C; that some sections of the curbing had been displaced; that the repaired sections were in worse shape than the rest of the lot. On cross examination, Clary admitted that his report stated that the lot should not have been designed without mesh.

Stewart, the architect, testified that cost was a factor to Coleman and that most items appearing on addendum No. 4 (Stewart 5) were cost-saving items. Stewart also testified that he never agreed to be a full-time superintendent either orally or in writing during the construction. In that regard, he specifically stated in Stewart-3:

This inspection portion of the contract is not to be construed as that of full-time superintendency. Periodic inspections and review will be made as required by Mr. David Brinson of my Baton Rouge office and myself.

This letter was addressed to Coleman. Notwithstanding Coleman’s testimony that he expected a full-time architectural superintendent, the testimony was convincing that none was contracted for nor ever intended by the parties.

Cloy testified that he was present at the meeting when addendum No. 4 was discussed, along with Coleman and Stewart, and that he estimated between $4,000.00 and $5,000.00 was saved by the elimination of the mesh.

On the main demand between Coleman and Cloy concerning the concrete parking lot, the preponderance of the evidence indicates that this work had some deficiencies relative to thickness of the slab, and the curbing was constructed in an improper manner, but the parking lot and driveways have withstood the test of time. Three years ago, between eight and twelve sections had been repaired. The total parking area is 188,000 square feet. The area which has been replaced amounts to not more than 4800 square feet. Notwithstanding the opinions advanced by the various experts, the court feels that with the exception of sections repaired by Farris, this parking lot has and continues to serve the purpose for which it was constructed. The one message universally shared by all the experts herein was that concrete cracks. The testimony of McKee and Clary in particular convinced the court that this parking lot was comparable to any parking lot in our area which was eight years old.

Householder was of the opinion that it would cost $1.00 a square foot to replace the parking lot. Using this figure, Coleman should recover $4,800.00 for the twelve twenty-foot sections which were so defective they required replacement. In regard to the curbing, the preponderance of the evidence is clearly in favor of Coleman. The plans and specifications were not followed. An adhesive bonding agent was used and Coleman did not get what he contracted for in this regard. Householder estimated a cost of $10,000.00 to completely re-do this curbing. Some miscellaneous work was done in connection with the air conditioning and ceiling; however, the court was not presented with any testimony relative to the actual cost of these repairs and cannot include these items. Additionally, the court will add 25% for profit and overhead, making a total of $18,500. Judgment to that extent is rendered in favor of Coleman and against F & D and Cloy. Inasmuch as $32,565.00 is being held as retainage by Coleman, F & D is entitled to the difference of $8,065.00.

Regarding the alleged oral contract between Cloy and Coleman for the fill work done on the “Toyota lot” adjacent to the construction, the court was satisfied that this was an oral contract between them, separate and apart from the July 31, 1972 contract (F & D 1). Mitchell Butts, an engineer in Cloy’s employ at the time, testified that he heard a conversation between Cloy and Coleman wherein Cloy agreed to fill the adjacent lot to a grade equal to the main lot for $30,000.00, or $1.75 per yard, whichever was less; that he ran a profile and estimate indicating that twelve to fifteen thousand yards would be necessary; that he told Cloy he was not going to make anything on the job, but Cloy told him he was going to get the dirt cheap or free. Cloy was entitled to $24,496.50 for the fill work done of the adjacent site, and F & D, under the terms of its indemnity agreement, is awarded that sum.

Regarding Stewart, the court feels Coleman has failed to show by a preponderance of the evidence that Stewart’s professional conduct breached any standard of care or duty owed by architects to clients in this general area, or that he agreed to provide full-time supervision. Coleman's demand against Stewart is dismissed.

Insofar as F & D’s third party claim for indemnification against Cloy is concerned, the court recognizes same, and judgment is rendered in favor of F & D for the amount set forth in the stipulation of facts between these two parties. Cloy’s demand for damages against Coleman is denied for the reasons set forth above; namely, the finding that the parking lot was partially defective and the curbing was totally defective.

Costs are taxed equally to Cloy and Coleman. Expert witness fees are fixed as follows: Jerry Householder, $200.00; Raoul Gonzales, $200.00; Dean McKee, $200.00; James Clary, $150.00; and David Brinson, $100.00.

Judgment will be signed in accordance with the above reasons.

BATON ROUGE, LOUISIANA, this 15th day of December, 1981.

/s/ Melvin A. Shortess JUDGE

      . These consolidated cases were previously before the court in Fid. & Dep. Co. of Md. v. Cloy Const. Co., 425 So.2d 887 (La.App. 1st Cir.1983), and only those matters which are essential for this decision will be repeated herein.

      . The suit filed by Fidelity & Deposit named as defendants Cloy Construction Company, Inc., Charles C. Cloy General Contractors, Inc., Charles Larry Cloy, Willie M. Cloy, and Coleman Oldsmobile, Inc.

      . The trial court’s formal judgment and written reasons for judgment are attached hereto as Appendices A and B, respectively.

      . See Footnote 1, supra. We note that there is a potential conflict between our holding in Fid. & Dep. Co. of Md. v. Cloy Const. Co., supra, and the holding in Roques v. Alfonso, 399 So.2d 1294 (La.App. 4th Cir.1981). However, that decision is now final.

      . Louisiana Civil Code article 2286 sets forth the essential element of res judicata and provides as follows:
      Art. 2286. Res judicata, essential elements The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

        See also, R.G. Claitor's Realty v. Juban, 391 So.2d 394 (La.1980).

      . See Footnote 3, supra.

      . Although Cloy cited no jurisprudence to support its position that res judicata was applicable, and we were unable to find any, we note that there are many cases holding res judicata is inapplicable in a suit to annul the legal effects of a prior judgment and such a judgment cannot successfully be urged as res judicata to itself. Powell v. Treat, 265 So.2d 678 (La.App. 2nd Cir.1972) and cases cited therein. See also Zeig-ler v. Zeigler, 420 So.2d 1342 (La.App. 3rd Cir. 1982).

      . In a memorandum in support of the motion to determine the date of compensation, Cloy illustrated his theory in the following calculations.
      Coleman owes Cloy:
      Principal Interest Total
      $32,545.00 $17,677.00 $50,222.00
      Cloy owes Coleman:
      Principal Interest Total
      $18,500.00 0 $18,500.00
      Imputation:
      $32,545.00 $17,677.00 $50,222.00
      (823.00) (17,677.00) (18,500.00)
      $31,722.00 0 $31,722.00

      . Louisiana Civil Code articles 2207, 2208, and 2209 provide for legal compensation in pertinent part as follows:
      Article 2207:
      When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.
      Article 2208:
      Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.
      Article 2209:
      Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable.

      . The trial court erred in computing the balance due after set-off in the written reasons for judgment, but corrected this error in the formal judgment. See Appendices A & B.


author: SHORTESS, Judge.

text:
    In the Interest of the Minor Child, Amanda May STREET.
    No. 84 CJ 0495.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Rehearing Denied Feb. 21, 1985.
    Stay Order Denied Feb. 27, 1985.
    Writ Denied April 12, 1985.

      Michael W. Lee, Asst. Dist. Atty., Livingston, for State, appellee.
    A. Wayne Stewart, Denham Springs, for Mr. & Mrs. Newman Wheat, appellees.
    Larry G. Starns, Denham Springs, for Annie Lindsey Street Mote, appellant.
    Clyde Street, pro se.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

This litigation has had an unfortunate history. It began on August 13, 1981, when, pursuant to a joint petition for change of custody brought by Annie Lindsey Street (Mrs. Street) and Clyde W. Street, Sr. (Mr. Street), the natural parents of Amanda May Street (Amanda), who was born on December 12, 1980, the trial court gave to Newman and Winona Wheat (Mrs. Wheat) the care, custody and control of Amanda subject to Mrs. Street’s rights of reasonable visitation. On December 29, 1981, the Wheats filed a petition to have Amanda declared abandoned. Mrs. Street answered and defended the suit. Mr. Street did not and consented to the Wheat’s action. The matter proceeded to trial on February 18,1982. On March 25,1982, the trial court issued an opinion which was reduced to judgment on April 26, 1982. Therein, the trial judge made the following findings:

The natural mother made no real effort to even visit with her child. Even though living with her sister, a person of some means, in McComb, Mississippi no real effort was made to visit with the child.
The child in question has experienced love and stability only since it has been living with the Wheats.
The child has been abandoned within the meaning and intent of the applicable laws of this State.

Mrs. Street appealed and on February 22, 1983, this court reversed, finding that the Wheats had no standing under La.R.S. 9:403 B to initiate an abandonment proceeding and ex proprio motu dismissed the suit because the Wheats had no right or interest to institute the suit. La.C.C.P. art. 927. See Wheat v. Street, 428 So.2d 930 (La. App. 1st Cir.1983).

Shortly thereafter, on March 31, 1983, Mrs. Street filed a rule against the Wheats seeking a change of custody. On March 16, 1983, a petition to declare Amanda abandoned was filed by the State of Louisiana through the District Attorney for the Twenty-First Judicial District Court. Another rule for change of custody was filed by Mrs. Street on May 24, 1983. The two issues were consolidated and trial was held on July 20, 1983. On December 1, 1983, the trial court issued an opinion which provided the following reasons:

This child has known love, gentle care and stability since it has been with the Wheats; prior to that time it had none of the essential needs fulfilled.
The court considers stability as the most essential need of a child, with love running a close second. The court feels that only with the Wheats can this child know stability and love.
The court is further convinced by this review that its original decision in this matter was correct.

On February 23, 1984, a judgment was signed which provided as follows:

IT IS ORDERED ADJUDGED AND DECREED, that the minor child Amanda May Street be and hereby is declared an abandoned child by her parents Clyde Street and Annie Lindsey Street Mote and that the care, custody and control of the minor child, Amanda Mae (sic) Street is granted unto Mr. Newman Wheat and his wife Winona Blount Wheat.

Mrs. Street has brought this appeal seeking to reverse the judgment of the trial court and to gain custody of Amanda. FACTS

The parties stipulated that the transcript from the initial trial would be introduced and made part of this case, so we have reviewed both transcripts in delineating the following facts.

Clyde W. Street, Sr., and Annie Lindsay Street were married to each other, and two children were born of that marriage, Clyde W. Street, Jr., and Amanda Mae Street. Amanda was born on December 12, 1980, but after the Streets were separated. During the separation, Mrs. Street had custody of Clyde, Jr., and was pregnant with Amanda.' The Wheats were foster parents to Clyde, Jr. The Wheats and the Streets became acquainted through this means.

Amanda was eight months old on August 10, when the Wheats first obtained her physical custody. Earlier in July, Mrs. Street brought Clyde, Jr., and Amanda to the Wheats for a visit. She told Mrs. Wheat that she had no money for food or diapers for Amanda and she had to do something about it because she could not take care of the child at that time. They discussed the matter and, according to Mrs. Wheat’s testimony, she told Mrs. Street that they (the Wheats) would not be interested in custody unless she consented to their adopting the child. Mrs. Street and Mrs. Wheat went to a lawyer’s office who told them that the father’s consent would be necessary if anything was to be done. Mrs. Street was to think about it over the weekend. On Monday, they returned to the lawyer’s office, where the Streets signed papers which formed the basis for the change of custody. On August 13, 1981, the trial court, pursuant to the pleadings, signed a judgment which provided as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the care, custody and control of the minor child, Amanda May Street, be transferred to Newman Wheat and Winona Wheat, until further order of this court, subject to Annie Lindsey Street receiving reasonable visitation rights with said minor child.

On November 29, after a written request wherein Mrs. Street asked to see Amanda, the parties met at McDonald’s on Plank Road in Baton Rouge. Mrs. Wheat testified that they discussed the adoption at that time and that Mrs. Street was still agreeable.

In December, Mrs. Wheat testified she got a letter from Mrs. Street postmarked from McComb, Mississippi, which stated that they (the Wheats) could keep Amanda only until she got herself “straightened out.”

Mrs. Street’s testimony was to the effect that the only consent she gave was for temporary custody, until she got “straightened out” and that she never told the Wheats they could adopt Amanda; that she offered to help but they refused; that she tried to set up meetings to see Amanda, but they said they would not agree while the abandonment proceedings were pending.

Vicky Street, who is Clyde Street, Sr.’s, second wife, testified that once, when Mrs. Street came to see Clyde, Jr., Mrs. Street told her that she did not want the Wheats to adopt Amanda but just keep her until she could make a home for her. Mr. Street testified that he agreed to the abandonment because he felt that the Wheats took very good care of Amanda and that Amanda would be better off with them than with Mrs. Street.

Janet Lambert, Mrs. Street’s sister with whom she lived in McComb at the time of the initial trial, testified that Mrs. Street had seen her children on two occasions since the change of custody and had been refused several other times, which she estimated to be four or five times.

Both Newman and Winona Wheat testified that they took custody of Amanda with the understanding that after the time delays passed, Mrs. Street would consent to adoption. They indicated that they were not interested in taking custody of Amanda if that custody was subject to any change that they could not control. Mrs. Wheat did admit that Mrs. Street changed her mind about the adoption after she moved to McComb.

Since the date of the initial trial, Mrs. Street testified that she had only seen Amanda on a few occasions; that she saw her on June 12, 1982; that she and her husband, David Mote, attempted to see Amanda on December 21, 1982, to bring Clyde, Jr., and Amanda their Christmas presents; and that because of a dispute at Mr. Street’s house when she was told her husband was not welcome, she left and returned to Mississippi without seeing Amanda. This was done notwithstanding the fact that the Wheats, who had been notified of her presence at the Streets, were en route with Amanda. Mrs. Street also testified that she attempted to make arrangements to see Amanda on other occasions but was thwarted because she was unable to get the Wheat’s telephone number. Mrs. Street frankly admitted that she had not contributed to Amanda’s financial support since the Wheats obtained custody on August 10, 1981.

Mr. Street testified at the second hearing also. Therein, he said that he had no objection to the Wheats; that he had become good friends with them; that he saw Amanda once or twice a week; and that he and his wife have supper with the Wheats on occasion. Mr. Street testified that he had seen Mrs. Street three times since February of 1982, all at his home; that Mrs. Street never calls to ask about her children; and that she is not fit to care for Amanda in his opinion.

Winona Wheat testified that Annie had seen Amanda only once since February of 1982; that she encouraged rather than impeded attempts by Annie to see her child; that she had not kept her telephone number a secret; that she never heard from Mrs. Street; that when she did hear from her, she was always happy to take Amanda over to the Streets so that Amanda could see her mother.

Upon completion of the testimony, the trial court laid the matter over in order to obtain home study evaluations on both homes. The home evaluation on Mrs. Street was done by the Pike County, Mississippi, Welfare Department. This report is positive in all respects, indicating that both Mrs. Street and her present husband are gainfully employed; that they possess the means to provide support for Amanda; that they live in a well-furnished, neat and clean two-bedroom trailer home in a rural area of Pike County.

The home evaluation of the Wheat’s home was done by the Livingston Parish, Louisiana, Welfare Department. We are especially impressed with the report, as it is most positive and complete and shows that the Wheats are financially and emotionally capable of raising this child and have provided a home for other foster children and have raised two adoptive children. We do note that Newman Wheat’s date of birth is December 17, 1921, and Winona Wheat’s date of birth is May 10, 1935.

The trial judge was of the opinion that the stability of Amanda’s environment was her most essential need and that only with the Wheats could Amanda have the stability and love that was necessary. He signed a judgment declaring Amanda an abandoned child.

THE LAW

A. ABANDONMENT

The pertinent law is found in La.R.S. 9:403 A(l):

A. child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove either:
(l)(a) the child has been deserted for a period of at least four months by his parent or parents, the whereabouts of his parent or parents are unknown, the parent or parents have made no provision for the child’s care and support and have shown an intention to avoid parental responsibility; or
(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.

The trial court’s opinion does not address abandonment, but concentrates entirely on the necessity for a positive stability of environment. In its first opinion, the trial court noted that the natural mother made no real effort to even visit with Amanda. The evidence showed, however, that from August 10, 1981, through the date of the first hearing on February 18, 1982, Mrs. Street had seen Amanda on two occasions. There was considerable dispute as to how many additional times she tried to see Amanda but was unable to do so. But Mrs. Wheat admitted that after Mrs. Street moved to McComb, she received a letter from her in December wherein Mrs. Street stated that she wanted the Wheats only to have custody of Amanda until she got her life straightened out. The evidence is also clear that the reason the Wheats were able to receive Amanda into their home initially was because Mrs. Street went to them and told them that she was unable to care for Amanda’s food and diaper needs and that she had to do something about it. The record is clear, also, that this litigation was instituted on December 21, 1981, only four months and nine days from the date the initial custody judgment was signed. This case has been in litigation for three years. Immediately after our original judgment became final, Mrs. Street, on March 31, 1983, filed a rule to obtain custody of Amanda. Shortly thereafter, the State filed its petition to have Amanda declared abandoned. Since the date of the original hearing, Mrs. Street has seen Amanda on one occasion only, June 12, 1982. It is hotly disputed as to whether she made any other serious attempts to do so. Amanda was declared abandoned pursuant to a written judgment on April 26, 1982. That decision was reversed on appeal, and immediately thereafter Mrs. Street filed a rule to obtain custody but was unsuccessful again.

Do these facts demonstrate clear and convincing evidence as required by La. R.S. 9:403 that Mrs. Street failed to provide for the care and support of her child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility? We must answer that query in the negative. The Wheats knew before they filed their abandonment petition, according to their version of the facts, that Mrs. Street no longer consented to an adoption and only wanted them to have custody until she got her life straightened out.

The State failed to show with clear and convincing evidence required by La.R.S. 9:403 that Mrs. Street abandoned Amanda.

CUSTODY

We have determined that Mrs. Street did not abandon Amanda. We accordingly must address the issue of custody which was tried along with the abandonment proceeding after consolidation of the two actions.

The law is clear. It was succinctly restated in Jones v. Jones, 415 So.2d 300 (La.App. 2nd Cir.1982):

The law is well settled that a parent enjoys a paramount or superior right to custody of his child as against a nonpar-ent. Deville v. LaGrange, 388 So.2d 696 (La.1980); Wood v. Beard, 290 So.2d 675 (La.1974); Burt v. McKee, 384 So.2d 489 (La.App. 2d Cir.1980); Hall v. Hall, 367 So.2d 162 (La.App. 2d Cir.1979). A parent may be deprived of that custody only when there are compelling reasons, such as the parent has forfeited his right to parenthood, he is unfit, or he is unable to provide a home for the child. The burden of proving “compelling reasons” rests with the non-parent. Snell v. Snell, 347 So.2d 511 (La.App. 2d Cir. 1977). It is not proper to merely compare the parent’s circumstances and situation with that of the non-parent and award custody on the basis of best interests of the child. The “best interest” comparison is the proper basis for custody contests between parents; it is not properly applied to a contest between a parent and a non-parent because the parent enjoys the paramount right to custody. Burt v. McKee, supra; Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir.1981); LaCroix v. Cook, 383 So.2d 59 (La.App. 2d Cir.1980).

415 So.2d at 302.

The trial court, while it signed a judgment declaring Amanda abandoned, made no finding of fact in its opinion to justify that conclusion. As aforesaid, our review of the record clearly shows no support for that conclusion. Additionally, the trial court did not find that Mrs. Street was unfit to care for Amanda or unable to provide a home for her. The Wheats have provided a loving, stable environment during this protracted litigation, but this fact alone cannot be considered by us in view of the established jurisprudence of this State.

Accordingly, the decision of the trial court is reversed, and judgment is rendered granting the permanent care, custody and control of Amanda May Street to her mother, Annie Street Mote. The State of Louisiana is taxed for all costs as permitted by law.

REVERSED AND RENDERED.

      . Mrs. Street has remarried and is now Mrs. Annie Mote.

      . Somehow, the record does not indicate how the Livingston Parish Welfare Department became involved with Clyde, Jr.’s welfare and had placed him in a foster home. Later, Mr. Street obtained legal custody of Clyde, Jr., pursuant to court order. Clyde, Jr.’s, status is not an issue in this appeal.

      . Each signed a separate verification and consent which provided that they "read the above Joint Petition for Change of Custody and that all of the allegations of fact contained therein are true and correct, and she hereby consents to the transfer of the care, custody and control of [Amanda] to petitioners, Newman and Winona Wheat.”

      . La.R.S. 9:403 A requires a four-month lead

      . The state of the law permitting indefinite transfer of the custody of infants upon court-approved agreements between the mother and third parties is abhorrent, where the child’s best interests are not specifically protected. In this instance, Amanda’s emotional well-being may suffer by uprooting her from the only stable environment she has known since she was eight months old, and placing her with a relative stranger (albeit her biological mother). Voluntary custody arrangements are dangerous unless:
      (1) the child’s best interests are effectively represented through some person wholly independent of both the parent(s) and third party seeking custody, and
      (2) the circumstances are such that it is absolutely clear that the mother is temporarily unable to care for the child, the new custodians are aware the arrangement is only temporary, and the primary motivation of all parties is enhancement of the child’s quality of life.
      Absent these circumstances, the law provides for both adoption proceedings (through which a child can be assured a loving and stable environment, rather than "tug-of-war’’ litigation) and the Foster Parent program, which brings in the State on behalf of and as custodian of the child.


author: STOKER, Judge.

text:
    Joseph C. GAUTREAU, Plaintiff-Appellant, v. SOUTHERN MILK SALES, INC., Defendant-Appellee.
    No. 84-95.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Rehearing Denied March 8, 1985.

      Theall & Fontana, Gary Theall, Abbe-ville, for plaintiff-appellant.
    Wayne Shullaw, Broadhurst, Brook, Mangham, Hardy & Reed, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

Joseph C. Gautreau, a dairy farmer, brought suit against Southern Milk Sales, Inc., a milk marketing cooperative, seeking to enjoin it from withholding money from him and seeking to recover money already withheld. Southern Milk reconvened seeking damages in the amount of $6,168.92 for losses sustained by receiving contaminated milk from Mr. Gautreau, less amounts already withheld from him.

The trial court granted an injunction prohibiting Southern Milk from withholding any further sums from amounts due Mr. Gautreau. Mr. Gautreau subsequently filed supplemental and amending petitions seeking damages resulting from Southern Milk’s wrongful retention of his funds. The trial court dismissed Mr. Gautreau’s claims and gave judgment in favor of Southern Milk on the reconventional demand in the amount of $3,598.52. We affirm the judgment in favor of Southern Milk for damages, but reverse the judgment dismissing Mr. Gautreau’s damage claim.

The substantial issues are:

1) Whether Mr. Gautreau should be liable to Southern Milk for its losses sustained from receiving contaminated milk, and;
2) Whether Southern Milk should be liable to Mr. Gautreau for wrongfully withholding funds from him.

FACTS

Southern Milk is a milk marketing cooperative which collects milk from a number of dairy farmers, including Mr. Gautreau. It sells the milk on behalf of the farmers and sends each farmer his share of the purchase price. The arrangements between Southern Milk and the individual farmer are set out in a contract titled “Membership and Marketing Agreement.” Such an agreement was signed by Mr. Gau-treau on November 15, 1976. A portion of that agreement provides:

“7. MEMBER [Mr. Gautreau] agrees to conform to and observe the By-Laws of the ASSOCIATION [Southern Milk], which are incorporated by reference and hereby made a part of this Agreement, as they are now or may be changed through amendments from time to time, and herein and hereby agrees that the Board of Directors of the ASSOCIATION may prescribe rules and regulations relative to marketing plans, handling, delivering, storage, shipment, standards or grades of milk delivered by MEMBER and other members in compliance with said By-Laws, and MEMBER agrees to be bound by and comply with such rules and regulations. The sole intended purpose of ASSOCIATION is to market MEMBERS raw milk.”

Milk intended for human consumption is required to be tested for the presence of antibiotics or other inhibitors. Prior to July of 1980 the Bacillus Subtilis Disc Assay (old test) was used to test for the presence of antibiotics. The old test could detect the presence of .05 of a unit of penicillin per milliliter of milk. In July of 1980 a new test came into use called the Bacillus Stearothermophilus Disc Assay. The new test can detect the presence of .005 of a unit of penicillin per milliliter.

Dr. Larry J. Maturin, Director of Divisional Laboratory Services for the State of Louisiana, testified regarding the use of the old and new tests. According to Dr. Maturin, the primary reason for switching to the new test was speed. The new test can be conducted within four hours, whereas the old test required 12 to 14 hours. Dr. Maturin also testified that the new test is highly accurate, and is ten times more sensitive than the old test.

On September 5, 1980, the Board of Directors of Southern Milk adopted a policy concerning losses incurred as a result of receiving milk which produced a positive result to the new test for the presence of antibiotics. The members of the Southern Milk cooperative were notified of the new policy by letter dated October 21, 1980. That letter reads in part:

“As a result, of the increased incidence of positive tests, Southern Milk Sales, Inc. has adopted the following policy in handling antibiotic contaminated milk: Any producer whose milk exhibits a positive test for the presence of antibiotics and/or inhibitors shall be liable for all losses incurred in disposing of the contaminated milk. The test detection procedure shall be the approved method prescribed by the United States Public. Health Milk Ordinance and Code.”

On Friday, April 23, 1982, milk Mr. Gau-treau had collected on Wednesday and Thursday was picked up. In accordance with procedure, the truck driver took individual samples of Mr. Gautreau’s milk, as he did with the other farmers whose milk he picked up. A sample of milk from the truck which picked up Mr. Gautreau’s milk, along with that of eight other farmers, gave a positive result to the new test for antibiotics conducted by an employee of Southern Milk. Samples from all the farmers whose milk was mixed in that truckload were tested, and only Mr. Gautreau’s milk gave a positive result. That truckload of milk containing 37,854 pounds, along with an additional 9,394 pounds with which it had been commingled in the silo, was transported at the expense of Southern Milk and dumped at a hog farm. Mr. Gautreau was notified on Saturday by an employee of Southern Milk that his load of milk had tested positive.

Southern Milk sent Mr. Gautreau an invoice dated April 27, 1982, billing him for the loss of 47,248 pounds of milk at a cost of $5,919.92, plus the additional cost of $249 for hauling the contaminated milk to a hog farm. The invoice indicated that the damages would be payable in 12 monthly installments. Accordingly, Southern Milk withheld $514.08 from Mr. Gautreau’s check on May 13, 1982, for his share of the purchase price of the milk. Similar with-holdings were made for the following four months, despite Mr. Gautreau’s protest that he did not owe the money.

On November 8, 1982, the trial court granted Mr. Gautreau’s request for a preliminary injunction prohibiting Southern Milk from continuing to withhold funds from his check. Mr. Gautreau’s written demand to Southern Milk that amounts already withheld be returned to him was denied, and he filed subsequent amending petitions seeking damages for this wrongful withholding.

LIABILITY FOR CONTAMINATED MILK

Mr. Gautreau first argues that the new test used to test for the presence of antibiotics in his milk is unreliable and overly sensitive. While it is true that the new test is more sensitive than the old test, Dr. Maturin testified that milk would have to pass the standard of the new test before being placed on the shelves for public consumption. According to Dr. Maturin, the new test was approved for use by the Interstate Milk Shippers Conference in conjunction with the Food and Drug Administration.

After trial of this matter, Mr. Gautreau moved to reopen the evidence in order to show that Southern Milk had begun to use a test less sensitive than the new test which caused this dispute. The trial court, in considering the motion and the new evidence, stated, “The evidence has no relevancy to the conditions and terms which were binding upon the parties at the time this dispute arose.” We agree with this evaluation. The testimony at trial shows that the new test previously used by Southern Milk was accepted procedure at the time even though that procedure may subsequently have been improved.

In arguing that the new test is unreliable, Mr. Gautreau testified regarding the results of tests he had conducted on samples of milk taken after this incident. According to Mr. Gautreau, milk collected on Friday and Saturday morning gave a negative result to the new test on Saturday, and the same milk gave a positive result on Monday. Milk collected on Saturday night and Sunday morning and placed in the same tank as that picked up by Southern Milk on Friday gave a negative result to the test. These samples were collected by Mr. Gautreau and taken to Borden by one of his children for testing. Only Mr. Gau-treau’s testimony was introduced on this matter; no reports or testimony from Borden employees was introduced.

Apparently the trial judge considered the evidence and testimony presented at trial and found that the new test was accurate, conducted properly, and reliable. We cannot say that such a conclusion is clearly wrong.

Mr. Gautreau also asserts that Southern Milk could not impose liability on him by merely adopting a resolution. Mr. Gau-treau claims that the policy imposing liability violates the following provisions of his agreement with Southern Milk:

“6. MEMBER hereby authorizes ASSOCIATION to deduct the sum of twenty-cents per hundredweight of milk marketed for MEMBER by ASSOCIATION as a charge for marketing services. ASSOCIATION hereby convenants and agrees that the amount of this deduction shall not be increased except by a majority vote of MEMBERS attending a meeting called for the purpose of voting upon such a change.
“8. This Agreement is one of a series depending for its force and effect on the adherence of each and all the contracting parties to each and all of said Agreements. MEMBER hereby specifically agrees that ASSOCIATION shall have all the rights and remedies provided by law and by the By-Laws of ASSOCIATION in the event of a breach or threatened breach by MEMBER of this Agreement.”

In our opinion, Provision No. 6 does not apply to the damages sought by Southern Milk in this action. That provision concerns only a deduction made for charges for marketing services. The deduction made by Southern Milk is not made as a charge for marketing services, but was made pursuant to its approved policy establishing the rights and liabilities of the parties in the event damages occurred from Southern Milk having received contaminated milk.

We do not find that the terms of Provision No. 8 prevent Southern Milk from adopting a policy such as that in question here. Although we do not have the bylaws of the Association before us, we will assume for purposes of this discussion that there is nothing in the bylaws similar to the provisions in the policy establishing liability by a member giving contaminated milk. Southern Milk takes the position that the policy is a regulation adopted pursuant to Provision No. 7 previously quoted. There is no allegation that the policy was not adopted in compliance with the bylaws, and we have no reason to believe that this is the case. As adopted, the policy became a part of the contract between Mr. Gau-treau and Southern Milk.

We note that Mr. Gautreau had an opportunity to withdraw from the agreement with Southern Milk after the policy was adopted and prior to the time that the liability occurred. Although Mr. Gautreau claimed that he signed the agreement under duress and that he could not sell his milk to anyone other than Southern Milk, there is no proof of these allegations in the record. The contract between Mr. Gau-treau and Southern Milk is valid and binding.

The invoices and other documents introduced into evidence are sufficient to establish the losses sustained by Southern Milk. Contrary to Mr. Gautreau’s claim, we do not think Southern Milk acted in undue haste in commingling the milk.

The conclusion that Mr. Gautreau may be held responsible for damages resulting from the contaminated milk does not necessarily lead to the conclusion that Southern Milk could withhold those funds from Mr. Gautreau under his protest. We now consider that question.

LIABILITY FOR WITHHOLDING FUNDS

Mr. Gautreau argues that in withholding his funds Southern Milk unlawfully deprived him of his property without due process of law, engaged in an unfair trade practice under Louisiana law, and unlawfully converted his funds for its own use. Although it has now been determined that Mr. Gautreau is liable for the damages sought by Southern Milk, Southern Milk was not entitled to withhold those unliqui-dated damages from Mr. Gautreau. Because we find that Southern Milk’s retention of the funds in question constitutes tortious conversion, we do not reach the question of whether this action also constituted a taking of Mr. Gautreau’s property without due process of law or an unfair trade practice.

Conversion is a wrongful act of dominion exerted over another’s property in denial of or inconsistent with his rights. Central Fidelity Bank v. Gray, 422 So.2d 670 (La.App. 3d Cir.1982); IAncecum v. Smith, 287 So.2d 625 (La.App. 3d Cir.1973), writ refused, 290 So.2d 904 (La.1974). In this case Southern Milk became guilty of conversion upon its failure to release funds admittedly due to Mr. Gautreau. Southern Milk’s contention that it was entitled to withhold the funds pursuant to its policy establishing the liability of Mr. Gautreau is without merit. There is nothing in the contract or in any other documents before the court giving Southern Milk the right to make such a withholding from money due Mr. Gautreau. Although liability for damages may be established between the parties to a contract, such an agreement does not give the party claiming damages the right to withhold that amount without legal authority when it is disputed. The policy approved pursuant to the contract gives Southern Milk only a legally enforceable claim for damages.

Southern Milk also takes the position that it was entitled to withhold funds from Mr. Gautreau pursuant to the provisions of LSA-C.C. arts. 2207 and 2208 concerning compensation between debtors. In order for this principle of compensation to apply the debts must be equally liquidated and demandable; a contested debt is not a liquidated one and cannot be used as a basis for compensation. Hartley v. Hart-ley, 349 So.2d 1258 (La.1977). Just as a secured creditor may not seize property without legal process, Southern Milk was not entitled to withhold sums due on an unliquidated claim.

The damages Mr. Gautreau suffered from the withholding do not appear extensive. For five months he did not receive the full amount due him. The check stubs show that for two of those months a payment normally sent to one of Mr. Gau-treau’s creditors on his behalf was less than the required amount. According to Mr. Gautreau, payment of the lesser amount has hurt his credit rating. He also testified that because he did not have use of the withheld funds at his disposal he had to go to other creditors and explain his late payments.

In view of our conclusion that Mr. Gautreau is liable for the amounts sought by Southern Milk, we find that he is not entitled to reimbursement of the withheld funds. However, we do find that he is entitled to $1,000 in general damages for the wrongful withholding.

For the above reasons, the judgment in favor of Southern Milk in the amount of $3,598.52 is affirmed. The judgment dismissing Mr. Gautreau’s claim for damages is reversed, and it is hereby ordered, adjudged and decreed that there be judgment in favor of Mr. Joseph C. Gautreau and against Southern Milk Sales, Inc. in the amount of $1,000. Costs at trial and on appeal are to be assessed equally between plaintiff and defendant.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.