author: JASPER E. JONES, Judge.

text:
    Shirley KNIGHTEN, Appellee, v. Thomas KNIGHTEN, Interdict, Appellant.
    No. 16056-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Writ Denied April 13, 1984.

      C. Michael Hill, Lafayette, for appellee.
    Hudson, Potts & Bernstein by Robert M. Baldwin, Monroe, for third party defendant-appellee Clyde Lain, II.
    William E. Armstrong, Monroe, for defendant-third party plaintiff-appellant.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

The plaintiff, Shirley Knighten, filed suit against the curatrix of her husband’s estate to collect on a promissory note payable to her. The note was issued in connection with a matrimonial agreement which terminated the community and partitioned the community property. The agreement was approved by the court. The curatrix filed a reconventional demand seeking to void the note on the grounds the matrimonial agreement is invalid. She also seeks to recover all amounts plaintiff was paid under the agreement. The curatrix filed a third party demand against Clyde Lain, II, the attorney who advised her to enter the matrimonial agreement on her ward’s behalf, for malpractice.

After a trial on the merits the trial court rendered judgment awarding plaintiff $48,-000.00, the principal balance on the note plus interest and $1,000.00 attorney’s fees. The judgment rejected the curatrix’ recon-ventional and third party demands. The curatrix appealed. Plaintiff answered the appeal seeking an increase in attorney’s fees. We amend the lower court judgment to increase the award for attorney’s fees and as amended affirm.

FACTS’

On July 24, 1980 plaintiff’s husband, Thomas Knighten, was severely injured in an automobile accident near Berwick, Louisiana. He was taken to a hospital in Houston, Texas. Plaintiff stayed with him while he was in the hospital.

At the time of the accident Thomas and plaintiff were legally married but had been physically separated for over a year. The community of acquets and gains was still in existence since neither party had filed separation or divorce proceedings.

After his release from the hospital, Thomas was moved to his mother’s home in Monroe, Louisiana. Plaintiff moved into the mother’s house with him for a while but afterwards returned to her separate residence.

The injuries to Thomas left him unable to care for his person or property. After a few months it became apparent his condition was permanent and he needed to be interdicted since this was necessary in order to pursue his substantial personal injury claim arising from the accident.

A contest arose over who would be named curatrix for Thomas. The contestants were plaintiff, Thomas’ mother and his ex-wife, Elizabeth Hamilton, who was the natural tutrix of his five children. Each contestant hired an attorney to secure for her the appointment as curatrix. The mother hired Clyde Lain, II.

The interdiction proceedings moved forward and a judgment of interdiction was rendered April 24, 1981. The judgment did not name a curatrix. The selection of the curatrix was resolved by an agreement negotiated by the attorneys which the three contestants signed June 22, 1981. This agreement provided that the mother would be named curatrix and plaintiff along with Elizabeth Hamilton would be named co-un-dercuratrixes. It was also provided that all three of the attorneys who negotiated the agreement would be hired to prosecute Thomas’ personal injury claim. The agreement contained additional provisions dealing with how the proceeds from the personal injury claim would be distributed in settlement of the co-undercuratrixes’ claims against Thomas’ estate, if the claim grossed at least $600,000.00. In respect to plaintiff, the agreement provided:

(2) Appearer Shirley Knighten for good and valuable consideration consents and agrees that out of the proceeds of any settlement or judgment that the Interdict and his estate may derive as a result of the Interdict’s accident and injuries of July 24, 1980, she will accept, in a lump sum adjudication to her, the sum of $50,000.00 cash, and in addition, shall accept an additional $50,000.00, payable at the rate of $500.00 per month on the first day of each month commencing immediately after the Interdict’s settlement or judgment proceeds are realized, until fully and finally paid, and bearing interest at the rate of six (6%) per cent per annum, which deferred payments shall be mandated by order of the Court pursuant to petition for authority therefor which the Curatrix hereby agrees to submit, and which shall be further evidenced by the Curatrix’ promissory note in accordance therewith. Upon performance and delivery of the obligations and moneys contemplated by this paragraph, Shirley Knighten agrees to release and discharge the interdict and his estate from such rights and claims as she may have as a present or former partner in community with the Interdict, and to seek, if necessary, to effectuate the provisions of this paragraph, Court authority to terminate the regime of community of acquets and gains existing between Thomas Knighten and herself and further agrees to hold harmless, defend and indemnify the Interdict and his estate against claims on the part of Shirley Knighten for amounts greater than those set forth in this paragraph, provided the agreements and obligations set forth in this paragraph are carried out, performed and transacted by all parties. The Curatrix and Elizabeth Hamilton agree unconditionally to perform all acts necessary to perform and execute all matters set forth in this Part (2) of this agreement.

Once this agreement was reached, appellant qualified as curatrix of the interdict and pursued the personal injury claim. That claim was eventually settled. Under the terms of the settlement Thomas received a lump sum payment of $300,000.00 plus an annuity of $3,000.00 a month for life or 20 years whichever is longer. In the event Thomas should die within 20 years the annuity would be paid into his estate. In addition, Thomas’ medical expenses to-talling over $150,000.00 were paid and each of his five children are to receive $200.00 per month until reaching the age of majority.

The settlement was approved in chambers by then district judge William Norris, III on December 4, 1981. All three of the contestants for curatrix were present with counsel. At the same meeting Judge Norris approved the terms of the June 22, 1981 agreement. At the same chambers hearing a joint petition of plaintiff and appellant for approval of a matrimonial agreement terminating the community together with the matrimonial agreement prepared pursuant to the June 22 agreement was presented to Judge Norris for his approval. He signed an order approving this agreement after assuring himself that plaintiff and the cu-ratrix understood the nature of his action and after determining it was in the spouses’ best interest to do so. In performance of this matrimonial agreement plaintiff was paid $50,000.00 in cash and she was given a note for $50,000.00 executed by her husband’s curatrix payable in accordance with the terms of the agreement.

The first four installments on the note, up through the April, 1982 installment, were paid. Thereafter, the curatrix ceased paying the installments. She testified she discontinued the payments after Judge Fudickar, who she went to see for approval of the fifth payment, questioned the validity of the separation of property agreement and order signed by Judge Norris and refused to approve the payment. Plaintiff made several demands on the curatrix to make the payments but she refused. Plaintiff then filed suit to collect the $48,-000.00 principal balance together with interest and attorney’s fees.

' The primary issue presented in this appeal on the main and reconventional demand is whether the matrimonial agreement is invalid for lack of consideration or for lesion. The issue raised by the answer to the appeal is whether plaintiff is entitled to have her attorney fee award increased. The issues raised by the appeal from the rejection of the third party malpractice demand are whether this action is prescribed and if not should it be denied on the merits.

Those preliminary and secondary issues raised in the briefs of the litigants which require some discussion will be addressed in the course of the opinion.

MAIN DEMAND AND RECONVEN-TIONAL DEMAND

We first address plaintiff’s argument that the curatrix improperly raised the issue of the validity of a judicially homolo-gated matrimonial agreement in a collateral proceeding. The argument is based on the recent decision of Zeringue v. Zeringue, 442 So.2d 1211 (La.App. 5th Cir.1983). In that case a divorced husband sued to rescind a community property partition between he and his ex-wife which had been judicially homologated. The fifth circuit held that once the partition was homol-ogated it became a thing adjudged and as such the trial court correctly sustained the ex-wife’s exception of res judicata. In the instant case plaintiff did not plead res judi-cata either by exception or in her answer to the reconventional demand and this court cannot supply the objection for her. La.C. C.P. 927.

The curatrix contends the trial court erred in not granting the reconventional demand because the separation of property agreement was invalid for lack of consideration and for lesion beyond one-fourth under La.C.C. 1861.

At the time the community was terminated on December 4, 1981 the sole asset in the community and in Thomas’ separate estate was the proceeds from the personal injury claim. The way the personal injury recovery is to be divided between the community and Thomas’ separate estate is provided for in La.C.C. 2344, which states:

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

The curatrix’ lesion claim is based on the last sentence of C.C. 2344. She contends that when plaintiff voluntarily terminated the community her share of the personal injury settlement was limited to one-half of what would be considered community property under C.C. 2344. She asserts the only part of the settlement that would be part of the community is an amount representing actual lost wages between the date of the accident, July 24,1980, and the date the community was terminated, December 4, 1981, a period of approximately one and one-half years. The testimony at trial established that Thomas had only earned between $6,000.00 and $10,000.00 a year prior to the accident and based upon these past earnings appellant contends plaintiff was at most entitled to $7,500.00. Appellant argues that since plaintiff received $100,-000.00, Thomas received less than three-fourths of his share of the loss of earnings included in the settlement by the terms of the matrimonial agreement and he is enti-tied to have that agreement set aside for lesion.

We do not agree. This argument ignores the fact that plaintiff would not have terminated the community except for the provisions of the matrimonial agreement wherein she received the $100,000.00. If she had not entered the agreement the community would not have been terminated and plaintiff would have been entitled to one-half of all sums included in the settlement attributable to loss of community earnings. Although the personal injury settlement does not allocate any specific amount to lost wages Thomas, age 36, was employed as an off shore welder, and it can be assumed that in a personal injury settlement of over $1,000,000.00 more than $200,000.00 is attributable to lost wages. It is apparent from these observations plaintiff gave up the opportunity to leave the community in effect and claim a much larger sum of money than she actually received by agreeing to terminate the community.

Having found the separation of property agreement was not lesionary, it follows that we also find it was supported by valid consideration. In return for the $100,-000.00 plaintiff gave up the right to make any future claim against Thomas’ estate. She gave up the valuable right to have maintained the community in effect and to have perhaps obtained far more than $100,-000.00 from the proceeds of the interdict’s personal injury claim. This right which she brought to an end in the matrimonial agreement was a valuable property right and the surrender of it was adequate consideration for the money she received.

In absence of a separation or a divorce, under Louisiana community property law persons already married and living under a community property regime can have the community terminated only with judicial approval. La.C.C. 2329. Before granting the termination the judge must determine that it serves the best interest of the spouses and they understand what they are doing. C.C. 2329. This court has recently held that when a party contends he received inadequate or no consideration in a matrimonial agreement, he in effect contends the partition is invalid because it is not to his best interest. Heyl v. Heyl, Administrator, 445 So.2d 88 (La.App. 2d Cir.1984). Judge Norris correctly determined that the termination agreement was in the spouses best interest because the wife received $100,000.00 and the interdict was relieved of any further claims by her against his personal injury settlement

The trial court properly awarded plaintiff a judgment on her note and defendant’s reconventional demand lacks merit.

THIRD PARTY DEMAND

The third party demand for malpractice against Clyde Lain, II is based upon his advising the curatrix to enter the June 22, 1981 agreement and the matrimonial agreement executed pursuant to it. The appellant contends that Lain should have advised her to terminate the community between plaintiff and the interdict by obtaining a divorce for the interdict. The following additional facts are pertinent to the issues raised in connection with that demand.

The petition on the main demand was filed September 13, 1982 and the curatrix was served September 24, 1982. The cura-trix filed an answer to that demand October 22, 1982. She subsequently filed the third party demand March 7, 1983. Along with that demand she filed interrogatories addressed to Lain. The third party demand and interrogatories were served on Lain March 14, 1983. Lain filed an exception of prescription to the third party demand March 18, 1983. A hearing on the exception was scheduled for April 26, 1983 while the trial on the main demand was scheduled and held April 25, 1983. Lain’s answer to the third party demand was filed and a copy given to the curatrix the morning of the trial. Lain never answered the interrogatories but the curatrix did not file a motion to compel his answers.

When the trial on the main demand began the trial judge decided to try all demands together over the curatrix’ oral motion to continue the trial of the third party demand. The trial judge also decided to refer the exception of prescription to the merits over the curatrix’ objection. After the trial on the merits the trial judge found the third party demand had prescribed and he rejected it on the merits.

On appeal the curatrix raises four assignments of error in connection with the trial court’s actions on the third party demand. She claims the trial court erred in:

(1) refusing to grant the continuance;
(2) referring the exception of prescription to the merits;
(3) finding the demand had prescribed; and
(4) rejecting the demand on the merits.

(1) continuance

The oral motion to continue was based upon Lain’s answer to the third party demand not being filed until the day of trial and upon his failure to answer the interrogatories. The curatrix contends the motion should have been granted under either La.C.C.P. 1601 or 1602. These articles provide:

Art. 1601. Discretionary grounds
A continuance may be granted in any case if there is good ground therefor.
Art. 1602. Peremptory grounds
A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

The curatrix has failed to establish she was entitled to a mandatory continuance under C.C.P. 1602. She merely argues she was unable to obtain evidence material to her case because of Lain's untimely answer and failure to answer the interrogatories. She has failed to assert what evidence she was unable to obtain or how that evidence was material to her case. She has also failed to show that the trial court abused its discretion in refusing to grant the continuance under C.C.P. 1601. She had known for over a month that Lain was defending the third party demand on the grounds of prescription. She also had her day in court and was able to thoroughly cross examine Lain.

It is apparent from the judge’s ruling denying the continuance that the appellant was aware on February 11th that the entire case would be tried on April 25th including appellant’s third party demand which appellant had apparently attempted to assert in a pretrial statement. The judge at the time of the pretrial hearing had advised appellant to assert the third party demand in proper pleading.

This assignment of error lacks merit.

(2) referral of exception to merits

The curatrix contends the trial court erred in referring the exception of prescription to the merits because the exception was filed before the answer. La.C. C.P. 929 provides that when a peremptory exception is pleaded before the answer, it shall be tried and decided in advance of the case. Despite the mandatory language of C.C.P. 929 the decision of whether to refer a peremptory exception to the merits is held to be a matter within the trial court’s discretion. Ward v. Standard Materials, Incorporated, 293 So.2d 885 (La.App. 1st Cir.1974). See also, Official Revision Comments (b) under Article 929 and the authorities cited therein. We find no abuse of the trial court’s discretion in deciding to refer the exception of prescription to the merits.

This assignment of error lacks merit.

(3) prescription

The curatrix contends the trial court erred in finding that the action for legal malpractice against Lain was subject to a one year prescriptive period rather than the ten year prescriptive period for contracts under La.C.C. 3544. There is currently a split among the other circuits on this issue.

The first circuit has held that an action for malpractice against an attorney normally states a cause of action in tort and is subject to a one year prescriptive period under La.C.C. 3536. Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 (La. App. 1st Cir.1983), writs den., 431 So.2d 773 (La.1983). In that case, the court states that the cause of action is in contract, and subject to a ten year prescriptive period, only if the attorney expressly warrants a particular result and fails to reach that result or if he agrees to perform certain work and does nothing whatsoever. In arriving at this decision the first circuit adopted the reasoning of the supreme court in the medical malpractice decision of Sciacca v. Polizzi, 403 So.2d 728 (La.1981).

The third circuit has expressly rejected the first circuit’s approach. Wingate v. National Union Fire Ins. Co., 435 So.2d 594 (La.App. 3d Cir.1983) (see footnote 2, p. 596). In that case the third circuit held that an action for malpractice against an attorney may state a claim in both tort and contract and as such is subject to a ten year prescriptive period.

We find the first circuit’s reasoning to be the more persuasive and we, therefore, adopt its holding in Cherokee Restaurant, supra. An action for legal malpractice normally states a cause of action in tort and is subject to a one year prescriptive period. It is only where the attorney warrants a specific result, and fails to obtain that result, or he agrees to perform certain work and does nothing whatsoever, that the cause of action is in contract.

The cause of action in the instant case is clearly in tort. The claim in essence is that Lain negligently gave the curatrix bad advice. The curatrix first hired Lain to secure for her the appointment as curatrix and then to prosecute her son’s personal injury claim. Lain did not warrant any particular result in either case and he did the work he was hired for.

Having decided that the cause of action for malpractice against Lain was subject to a one year prescriptive period, we must now decide whether the one year had in fact ran at the time the curatrix filed the third party demand. In order to make this determination it is necessary to decide from what date the one year period is to be calculated.

Lain contends prescription began to run on December 4, 1981, which is the date his alleged acts of negligence resulted in the homologation of the matrimonial agreement. Since the third party demand was filed more than a year later, on March 7, 1983, he claims the cause of action for malpractice alleged therein had prescribed.

The curatrix contends that the prescriptive period did not begin to run until sometime in April, 1982 when she learned she had a cause of action to have the sepáration of property agreement set aside. She cites for authority the principle that the one year prescriptive period of La.C.C. 3536 commences to run from the date the injured party discovered or should have discovered the existence of facts that would enable him to bring suit. La.C.C. 3537; Cherokee Restaurant, Inc. v. Pierson, supra.

The curatrix’ reliance on the above principle is misplaced. She was aware of the facts that enabled her to bring suit from the time they occurred. She was aware of all the facts regarding the marriage between plaintiff and her son by virtue of her own knowledge. She was advised of all the facts surrounding her appointment as curatrix, the tort settlement, and the matrimonial agreement by her attorney and Judge Norris and there is an abundance of evidence in the record which establishes these determinations. It was her rights under those facts that she allegedly did not know about. The ignorance of one’s rights does not toll the running of prescription. Smith v. Tyson, 193 La. 571, 192 So. 61 (1939); Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir.1975); Wingate v. National Union Fire Ins. Co., supra. The one year prescription period began to run by at least December 4, 1981. The trial court correctly decided that defendant’s third party demand had prescribed.

This assignment of error lacks merit.

Following the trial judge’s determination that the alleged malpractice claim had prescribed the trial judge made the statement that appellant failed to prove malpractice. We agree with this conclusion but find it unnecessary to address it because of our agreement with the trial judge’s determination on the prescription issue.

ATTORNEY’S FEES

The note which plaintiff sued on calls for 25% attorney’s fees on the unpaid balance if sued upon or placed in the hands of an attorney for collection. At the time the suit was filed $48,000.00 was owed on the note. Plaintiff claims the trial court erred in awarding only $1,000.00 in attorney’s fees instead of $12,000.00. Plaintiff cites Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982) for the proposition that where the amount of attorney’s fees is set in a note, the trial court cannot award a lesser amount unless the reasonableness of the attorney’s fees provision is questioned at trial.

Leenerts Farms does not limit the trial court in its determination to reduce an excessive fee provided for in a note to a case where the issue was asserted by the defendant at trial. The Leenerts Farms case, which recognized that an attorney is prohibited from collecting a “clearly excessive fee” by the Code of Professional Responsibility, is authority for the trial court to inquire into the reasonableness of an attorney’s fees provision in a note, whether or not the issue is raised by the opposing party, as a matter of public policy. This view is consistent with the “earned fee” concept announced in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979).

The trial court is in the best position to determine what is a reasonable fee based upon the factors contained in DR 2-106 of the Code of Professional Responsibility. McCarthy v. Louisiana Timeshare Venture, 426 So.2d 1342 (La.App. 4th Cir.1982). There is nothing in the instant record to suggest the trial court abused its discretion in setting attorney’s fees at $1,000.00. Plaintiff is entitled to an increase in attorney’s fees for legal services performed on appeal. There were a number of difficult legal questions involved. Plaintiff’s attorney filed an exhaustive brief which required extensive research and he had to travel a substantial distance for oral argument. We find that $1,500.00 is a reasonable fee for the appellate work.

DECREE

The judgment of the trial court is amended to increase the attorney’s fees awarded plaintiff to $2,500.00. As amended the judgment is AFFIRMED at appellant’s cost.

      . (a) There are no children of the marriage between plaintiff and Thomas.
      (b) Plaintiff had a legal preference for the appointment. See La.C.C.P. 4550.

      . The settlement does not allocate any of the amounts paid to any specific item of damages. In particular there is no allocation for loss of future wages.

      . The note contained an acceleration clause.

      . C.C.P. Art. 927 provides in pertinent part:
      The court cannot supply the objections of prescription and res judicata, which must be specifically pleaded...

      . In relevant parts C.C. 1861 provides:
      The law, however, will not release a person of full age, and who is under no incapacity, against the effect of his voluntary contracts, on account of such implied error or imposition, except in the two following cases:
      1. In partition where there is a difference in the value of the portions to more than the amount of one-fourth to the prejudice of one or [of] the parties; ...

      . Clyde Lain, II, attorney for the curatrix, testified the figure of $400,000.00 was used as the value of Thomas’ lost wages claims in connection with some of the settlement negotiations with the tort feasor’s insurers.

      . C.C.P. 2329

      Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
      Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval...

      . While the curatrix contends that Judge Norris did not explain to her the ramifications of entering such an agreement on Thomas' behalf, the record does not support her contention. Every other witness testified that the judge went over the agreement with the parties concerned and explained its significance to them and the appellant stated she understood and approved the agreement.

      . "... This matter was pretried before this division on February 11, 1983, at the request of the attorneys by telephone... At that time it was discussed what the posture of trial would be... It was related to the Court that all parties knew where they stood in this. It was the Court’s position, the Court's suggestion to Mr. Nolen that Mr. Armstrong file his pleadings rather than have them just incorporated in a pre-trial statement, which was done by-on March the 7th, 1983, for the Third Party Demands. At which time they have now been answered this morning. Third party defendant stands ready for trial, and the court will take the matter up.”

      . We note that the curatrix is unable to avail herself of the extended period in which she could file the third party demand under La.C. C.P. 1067. That demand was filed more than ninety days after service of the main demand.

      . The curatrix contends that she did not learn of her cause of action until she consulted her present attorney after Judge Fudickar allegedly questioned the validity of the agreement.

      . DR2-106 lists the following eight factors to be considered in determining whether an attorney’s fees are reasonable:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (ó) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    ROUSTABOUTS, INC. v. Milton H. HAMER, Jr., et al. (Nobles Construction Company, Inc., Harry E. Nobles, Doyle M. Barnes and Anthony Newell).
    No. 83 CA 0348.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      B.J. Rawls, Aycock, Horne, Caldwell, Coleman & Duncan, Morgan City, for plaintiff.
    Cary W. Vercher, Morgan City, for defendants.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff, Roustabouts, Inc., filed this suit against Milton H. Hamer, Jr., Doyle M. “Stick” Barnes, Anthony (Tony) Newell, Harry E. Nobles and Nobles Construction, Inc. In its petition, the plaintiff alleged that the defendants violated the Louisiana Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401 et seq., (hereinafter sometimes referred to as the Trade Practice Act), in that they conspired to employ unfair methods of competition and unfair acts and practices which resulted in economic injury to plaintiff. While the defendants denied the plaintiffs allegations and filed a reconventional demand seeking their own damages based upon the Trade Practice Act, the trial court agreed with the plaintiff and awarded it $133,-333.00 in actual damages and 25% attorney’s fees. The defendants were cast in solido, and their reconventional demand was dismissed.

All of the defendants with the exception of Milton H. Hamer, Jr. have now perfected this appeal. On appeal, the appellants contend the trial judge committed five errors warranting the reversal of the judgment against them. However, an analysis of the transcript and evidence reveals that the decision below was correct and we therefore affirm at appellants’ costs. In his lengthy written opinion, the trial judge stated several times that he had no doubt the defendants employed unfair practices to economically injure the plaintiff. Our reading of the transcript and review of the exhibits convinces us of the correctness of the trial judge’s conclusions.

Hamer Industries, Inc. was incorporated on December 30, 1975. Milton H. Hamer, Sr. and his son Gregory J. Hamer were the only shareholders. Gregory J. Hamer was president, Milton H. Hamer, Sr. was secretary-treasurer and Doyle M. “Stick” Barnes was appointed vice-president on February 1, 1977. Being in the welding and fabrication business and serving the oil and gas industry, Hamer Industries frequently needed the services of roustabout-type personnel. Because of the need for this particular type of personnel, the Ham-ers decided that Hamer Industries, Inc. would spin-off a sister corporation to serve those in the area who needed roustabouts.

Accordingly, on May 12, 1977, the plaintiff company was incorporated. Gregory J. Hamer and Milton H. Hamer, Sr. each owned 35% of the stock of Roustabouts, Inc. and Doyle M. Barnes and Milton H. Hamer, Jr. each owned 15% of the stock. Initially, Gregory Hamer was president of the company, Doyle Barnes vice-president, and Milton Hamer, Sr. secretary-treasurer. Subsequently, Milton Hamer, Jr. was named president and Tony Newell was appointed operations manager. Although Doyle Barnes later sold his stock in Roustabouts, Inc., he remained vice-president and a director until January, 1980, when he went to work for Nobles Construction, Inc. In February, 1980, Milton Hamer, Jr. was fired as president of Roustabouts, Inc. and later accepted a job at Nobles Construction, Inc. Tony Newell also went to work for Nobles Construction about this time.

As noted above, the business of the plaintiff was to hire out roustabout personnel; use was made of these workers both on land and off-shore in the Gulf of Mexico. Because of the peculiar hours associated with this work, when the plaintiff’s men were not working they were provided room and board for a nominal fee at a bunkhouse or “hotel” owned by the plaintiff. When a customer would call Roustabouts, Inc. looking for men, the plaintiff would dispatch workers to the job with a “job ticket” used to keep track of the hours worked by the plaintiffs men. Later, when the men would return with the job tickets filled out, the plaintiff would bill the customer for services rendered.

For various reasons, the oil and gas industry in South Louisiana is frequently in need of welders and fabricators. Harry E. Nobles was a highly thought of welder .and Doyle Barnes persuaded Nobles to come to work for Hamer Industries in January of 1978. Nobles agreed to come and brought some of is work with him. Often in need of roustabouts, Nobles would order men from Roustabouts and then Roustabouts would bill Hamer Industries, Inc.

The plaintiffs business was growing steadily and earning quite a nice return subsequent to its incorporation. Because of a number of matters, however, a sibling rivalry developed between Milton Hamer, Jr. and Gregory Hamer which began to interfere with the smooth operation of both plaintiff and Hamer Industries, Inc. At the same time — the spring and early summer of 1979 — Harry Nobles began thinking over the idea of forming his own company. He went to Barnes for advice and asked Barnes if he wanted to participate. Citing Nobles all the benefits associated with his job at Hamer Industries, Barnes said no. However, because of the continuing bitterness resulting from the sibling rivalry, Milton, Jr. and Barnes began to discuss the idea of going into business with Nobles in May of 1979.

Nobles Construction, Inc. was incorporated on June 12, 1979. Although the minutes of the first meeting indicate that Harry Nobles was the only shareholder, Milton Hamer, Jr. testified that the original stock issue was 400 shares to Harry Nobles, 800 shares to Doyle Barnes and 400 shares to Milton Hamer, Jr. In support of his testimony, plaintiff offered a copy of a stock certificate issued to Milton Hamer,' Jr. for 400 shares on June 12, 1979. Although defendants disputed the authenticity of the certificate, an expert in handwriting analysis confirmed that the signature of Harry Nobles on the document was genuine. The evidence refuting Hamer, Jr.’s testimony on this point was not persuasive. Furthermore, Milton Hamer, Jr. testified that he later obtained a consulting contract in exchange for the surrender of his stock. This contract was introduced into evidence and its authenticity was also disputed; however, plaintiffs expert again confirmed the signatures on this document as genuine.

The record also reflects that immediately after the incorporation of Nobles Construction, and extending throughout the time period involved in the controversy, Barnes and Milton Hamer, Jr. made capital contribution to Nobles Construction, Inc. Later, Milton Hamer, Jr. and Barnes withdrew some of this money in the form of salary, and the exhibits also proved that Doyle Barnes was authorized to sign checks for Nobles Construction, Inc. as early as July 9, 1979. The cancelled checks introduced into evidence clearly support Milton Ham-er, Jr.’s contention that he and Barnes would receive the same amount in payroll, and it is clear that from early in the life of Nobles Construction, Inc., Doyle Barnes and Milton Hamer, Jr. were not only shareholders, but were salaried employees of Nobles Construction, Inc.

There exists in the record other evidence indicating Milton Hamer, Jr. and Doyle Barnes were intimately involved in the day-to-day operations of Nobles Construction, Inc. For instance, Milton Hamer, Jr. testified that he and Doyle Barnes negotiated a lease for Nobles Construction, Inc. in October of 1979. A copy of the lease was introduced into evidence substantiating Hamer’s testimony. Not only is Barnes a guarantor of the obligation incurred by Nobles Construction, but there exists a slot for the signature of Milton Hamer, Jr. also. Additionally, in December of 1979, Doyle Barnes opened a bank account at Patterson State Bank on behalf of Nobles Construction, Inc. and also made an application for a loan on behalf of Nobles Construction, Inc., putting his personal address on the application.

These facts clearly demonstrate that Harry E. Nobles, Doyle Barnes, and Milton Hamer, Jr. conceived, planned and carried out a scheme to incorporate, capitalize, and manage Nobles Construction, Inc. Because Nobles Construction often employed roustabouts, business was taken away from the plaintiff and given to Nobles Construction, Inc. resulting in injury to the plaintiff at the hands of its own shareholders, directors and officers.

There is further evidence, moreover, that demonstrates the insidiousness of the plan to economically destroy the plaintiff for the benefit of Nobles Construction, Inc. This plan centered around three areas: 1) the use of the plaintiffs personnel and equipment by Nobles Construction, Inc. without paying for the services and products; 2) use of Hamer Industries’ equipment by Nobles Construction; and 3) the use of Roustabouts, Inc. insurance to cover Nobles Construction employees. With respect to the first two, the trial judge summarized the evidence as follows:

Starting around July 1979 Stick Barnes, Tony Newell and Hamer, Jr. began a systematic practice whereby employees of Roustabouts would be sent to Nobles Construction, Inc. to do labor work for which Nobles would be paid for their services and Roustabouts would get nothing. At these times some of these men were housed and fed in the bunkhouse owned by Roustabouts and Roustabouts’ vehicles were used to transport them to and from work. In June of 1979 Jackie Potts was working offshore at a Shell installation for Roustabouts, Inc. when he as approached by Harry Nobles, who informed him that he was starting his own company and was going to take over the job from Hamer Industries, Inc. and Roustabouts, Inc. Mr. Potts did not feel that he should transfer his allegiance from one company to the other, but upon being informed that Hamer, Jr. was involved in the situation and wanted him to do so, and upon inquiring about this, he made the switch and Potts became an employee of Nobles Construction, Inc. At that time there was Hamer Industries equipment that was used by Nobles Construction to continue the work of Roustabouts.
While Tony Newell was the general manager for Roustabouts, he became involved in the operation of Nobles Construction, Inc. He ordered certain equipment to be sent from Roustabouts’ bunkhouse to the Nobles Construction, Inc. bunkhouse, and the evidence shows that he did much payroll and other work for Nobles Construction while purportedly working for Roustabouts. It was the custom of Roustabouts to send their employees out with a job ticket, however, while switching the men from Roustabouts to Nobles the Nobles men did not use the job tickets but Nobles received the benefits therefrom.

In short, Nobles Construction, Inc. would often use the plaintiff’s personnel without paying for them. Additionally, the evidence suggests that until Nobles Construction, Inc. obtained its own insurance in November of 1979 (at a cost of approximately $25,000.00), claims made by Nobles Construction employees were run through plaintiff’s insurance company. Thus, Nobles Construction effectively “used” the plaintiff’s insurance without paying for it.

Of course, much of the evidence on the question of intent to injure plaintiff was circumstantial and required the trial court to weigh the credibility of the witnesses. In this respect, the trial judge had no doubt in his mind as to the result he should reach. He wrote that the evidence presented “clearly convinces this Court that Hamer, Jr., Stick Barnes, Tony Newell and Harry Nobles conspired not only to form their own corporation and to go into business in competition with Roustabouts, but to do so in an unfair and deceitful manner. While beefing up the new Nobles Construction Company, they were milking the business and some assets of Roustabouts, Inc., and for this Roustabouts, Inc. is entitled to recover damages.” The lower court concluded: “There is no doubt in this Court’s mind that a scheme did exist to take over a substantial part of the former employer’s business and to injure the business thereby. The people who started up Nobles Construction, Inc. wanted not only to go into competition with Roustabouts but to dilute Roustabouts’ progress by using their men and list.” We think the evidence supports the trial judge’s conclusions.

As noted above, the appellants have posited five specifications of error on appeal and we shall analyze these in the order presented in their brief. In the first issue presented to the court, the appellants argue that the provisions of the Unfair Trade Practices and Consumer Protection Law are inapplicable to this case. We disagree.

The Louisiana Unfair Trade Practices and Consumer Protection Law declares unlawful unfair methods of competition and unfair acts or practices in the conduct of any trade or commerce. LSA-R.S. 51:1405 A. Private actions are permitted by any person who suffers any ascertainable loss as a result of the use by another person of an unfair practice, and if the actions are successful, the trial judge shall award reasonable attorney’s fees to the prevailing party. LSA-R.S. 51:1409 A. Of importance is the fact that the term person is defined in LSA-R.S. 51:1402(8) to include corporations as well as natural persons.

Essentially, the appellants argue that in order for the Trade Practices Act to apply, the act or practice complained of must be one that effects broad consumer interest. However, as we stated in Guste v. Demars, 330 So.2d 123, 125 (La.App. 1st Cir.1976):

The substantive prohibition of the Unfair Trade Practices and Consumer Protection Law is broad and does not specify particular violations. La.R.S. 51:1405(A) declares that:
“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.”
The language of this section tracks closely that of the Federal statute, 15 U.S.C. Section 45(a). Because of the variety of possible unfair and deceptive practices, the Federal statute was intentionally broadly written, leaving the determination of individual violations to the Commission and the courts. Our legislature has expressed a similar intention in patterning our law so closely on the Federal statute.

It should be noted that the private right of action in the Louisiana law is not provided for in the Federal scheme. But more importantly, consistent with the definition of person cited above, it has been held that the language of LSA-R.S. 51:1409 A confers the private right of action on both consumers and business competitors. Morris v. Rental Tools, Inc., 435 So.2d 528 (La.App. 5th Cir.1983). Furthermore, it has been stated that a practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious to consumers and consumers include business competitors. Coffey v. Peoples Mortgage & Loan of Shreveport, Inc., 408 So.2d 1153 (La.App. 2nd Cir.1981); Moore v. Goodyear Tire and Rubber Co., 364 So.2d 630 (La.App. 2nd Cir.1978); Morris, 435 So.2d at 532; See also, National Oil Service of Louisiana, Inc. v. Brown, 381 So.2d 1269 (La.App. 4th Cir.1980). Admittedly, the definition of what may constitute an unfair act or practice is broad and subjective. Thus, it is best that the determination of what may amount to an unfair act or practice remain the province of the courts applied on a case by case basis. Only in that way may the many harms sought to be proscribed by the act be prevented. As such, the appellants’ argument that all business consumers or competitors should, ipso facto, be excluded from bringing an action under the act finds rejection in the jurisprudence and in the common sense interpretation of the statutes. Thus, we find the trial judge was correct in the application of the Trade Practices Act to the facts.

The appellants next argue that the plaintiff failed to prove its case by a preponderance of the evidence. What do the facts of record show? While still either officers, shareholders, directors, or employees of the plaintiff corporation, Milton Hamer, Jr., Doyle Barnes, and Tony Ne-well, in combination with Harry Nobles, engaged in conduct which was intentionally designed to injure the plaintiff. The exhibits demonstrated beyond equivocation that Hamer, Jr. and Barnes contributed substantial amounts of capital and time to Nobles Construction, Inc. while still shareholders or directors in a company which was often in direct competition with Nobles. More perniciously, the evidence clearly proved that Hamer, Jr., Barnes, Ne-well and Nobles knew that the plaintiffs employees were being used by Nobles Construction without compensation to the plaintiff. The plaintiffs bunkhouse was often used by Nobles’ employees when these workers were not off-shore, and when they were off-shore and suffered an injury, the employee would be taken care of by the plaintiffs insurance policy.

Although the existence of a conspiracy to economically injure another company is often a difficult charge to substantiate, especially where the different parts in the plan are played by several people, in the case sub judice the trial judge had “no doubt” after weighing the credibility of the witnesses that the appellants conspired to do harm to the plaintiff. We think the actions of the appellants exhibited a clear intent to decimate the plaintiffs business for their own gain, and that the appellants engaged in basic business dishonesty of an unscrupulous and underhanded nature. The lower court felt the facts of the conspiracy were proven by a preponderance of the evidence and we see no manifest error in his conclusion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The appellants also argue that the trial judge erred when he dismissed their reeon-ventional demand with prejudice. When the defendants answered plaintiffs petition, they filed a reconventional demand of their own based upon the Trade Practices Act. Essentially, the defendants argued that Milton Hamer, Sr. and Gregory Hamer engaged in unfair competition which caused the defendants to lose work and suffer injury. The trial judge dismissed defendants’ reconventional demand as he obviously felt that defendants had not proven their allegations, or whatever allegations they did prove did not amount to behavior proscribed by the Trade Practices Act. We agree.

The only testimony offered in support of defendants’ reconventional demand was that of Milton Hamer, Sr. It should be noted that Milton Hamer, Sr. and Gregory Hamer had instituted another suit against Milton Hamer, Jr. based upon the same facts sometime around the date the suit which is the subject of this appeal was filed. When the present suit was filed in June of 1980, the population of the small town of Morgan City, where the principals live, became intensely interested in the “inside story.” At one point, Milton Hamer, Sr. testified that he quit going to the post office because of local curiousity over the court action. It is with the knowledge of this “Dallas” type atmosphere that we must weigh the correctness of the action taken by the lower court in dismissing the defendants’ reconventional demand.

Defendants allege that Milton Hamer, Sr. damaged Nobles Construction, Inc. when he talked to several oil company executives about the lawsuits, and defendants also claim that because Hamer, Sr. interfered with Nobles Constructions’ relations at various lending institutions, Nobles Construction was unable to purchase an entity called Ramos Oilfield Service. Although Milton Hamer, Sr. was questioned extensively on both aspects of defendants’ claim, apparently the trial judge was never able to connect any harm to the defendants with the actions of Hamer, Sr. In the first place, Milton Hamer, Sr. only talked to two or three executives: one at Shell Oil Company, another at Kerr-McGee, and maybe (Hamer, Sr. was uncertain), a third at Texaco Oil Company. All of these conversations occurred after the lawsuits had been filed and the internal bickering of the Ham-er family had become the talk of the town. In each instance, Hamer, Sr. simply told the executives what was the nature of the lawsuits, and why he had instituted the legal action. He did not say anything that was not public knowledge or was not contained in the petitions. As a matter of fact, Hamer, Sr. testified that he never mentioned any names with the exception of his son and Nobles Construction, Inc. With respect to the purchase of Ramos Oilfield Services, the only thing proven at trial was not that Hamer, Sr. blocked this sale, but that one of the seller’s backed out of the deal because he wanted to sell all of the stock, something to which Doyle Barnes would not consent.

In summary, it is clear to us, as it must have been to the trial judge, that whatever harm was suffered by the defendants was more the result of small town gossip and a desire by local businessmen to stay out of the fight, than it was the actions of Milton Hamer, Sr. or Gregory Hamer. The defendants cannot now be heard to complain because the plaintiff filed a meritorious lawsuit that turned out to be entertaining to the people of Morgan City. As such, the trial judge was correct in dismissing the defendants' reconventional demand.

The final two errors alleged by the defendants involve the award of damages and the assessment of attorney’s fees by the trial court. Appellants claim that the damages awarded to the plaintiff were excessive and erroneous, and that the 25% attorney’s fees awarded to plaintiff were also unwarranted. LSA-R.S. 51:1409 A states that any person who suffers an ascertainable loss of money as a result of an unfair act or practice may bring an action to recover actual damages. Furthermore, this same statute also provides that in the event damages are awarded, the court shall award to the person bringing the action reasonable attorney’s fees.

The trial court arrived at the figure of damages by analyzing the plaintiff’s tax returns for the years 1977-78,1978-79, and 1979-80. These exhibits reflect a steady increase in sales and in earnings for the plaintiff in fiscal years 1977 and 1978 and a significant decrease for fiscal year 1979. The plaintiff’s percentage of profits to sales in 1977 was 6.67 percent, in 1978 it was 14.99 percent, but in 1979 it was only 2.29 percent. Other business factors which might account for the decrease in profits, such as uncollected debts, were not shown to exist. So, after making appropriate deductions for increases in outlay for salaries and taxes, the trial judge reached the figure of $133,333.00 and assessed this as damages. We should note that the figure assessed as damages probably reflects as accurate an account of the overall damage inflicted upon the plaintiff that was available for the lower courts consideration. Although in their brief on appeal the defendants posit several figures which they claim are more reasonable, none of the numbers cited by the defendants take into account the true damage done to the plaintiff by the defendants acts, and furthermore, the figure assessed by the trial court most accurately reflects actual loss. Thus, given the evidence before the trial judge, we think the $133,333.00 does not represent an abuse of discretion. Caldwell Country Club v. Department of Transportation and Development, 438 So.2d 723 (La.App. 2nd Cir.1983); Martin v. Roberts, 331 So.2d 541 (La.App. 1st Cir.1976).

Finally, the appellants argue that the 25% attorney’s fees awarded to the plaintiff were excessive. While we think 25% may be on the high end of the scale, we also think it was justified given the nature of this case. The question, of course, is one of reasonableness, and that determination should be made in light of several factors: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) the amount involved and the results obtained; (3) the time limitations imposed by the case; (4) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (5) the importance of the litigation. Contrary to the defendants’ assertions, we think the record clearly shows that each of these factors was extant in this case and combine to make the 25% figure reasonable. Given the nature of this litigation, we are not left with the definite and firm conviction that the 25% fee was in excess of reasonableness and we reject defendants’ allegations in this respect. See, Louisiana State Bar Association, Code of Professional Responsibility, DR 2-106.

Because we have found no errors in the trial court’s decision, we affirm the judgment below at appellants’ costs.

AFFIRMED.


author: COLE, Judge. SAVOIE, J.,

text:
    Robert E. JEANSONNE v. LEON PICKARD CHEVROLET, et al.
    No. 83 CA 0366.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Walter L. Smith, III, Baton Rouge, for plaintiff-appellant Robert E. Jeansonne.
    Michael Clegg, Baton Rouge, for defendant-third party plaintiff-appellee Leon Pick-ard Chevrolet.
    Wendell Clark, Baton Rouge, for defendant-third party defendant-appellee General Motors Corp.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

In this case plaintiff seeks a rescission of the sale of a used truck. The facts giving rise to the litigation are as follows. On September 10, 1980, Robert Jeansonne purchased a used 1980 Chevrolet diesel pick-up truck from Leon Pickard Chevrolet. He paid $7,000 cash for the truck, plus tax and license of $362. The truck had 12,400 miles on it, which would normally mean the warranty had expired. However, the salesman, Calvin Daigle, informed Mr. Jean-sonne the truck was covered by an extended warranty which was valid for 36 months or 50,000 miles. Mr. Jeansonne was given two pamphlets which explained the conditions of the extended warranty.

After experiencing much difficulty with the truck Mr. Jeansonne filed suit against Leon Pickard and General Motors Corporation for a rescission of the sale and damages, or alternatively, for a reduction of the purchase price. Pickard Chevrolet filed a third party demand against GMC.

At trial testimony was conflicting as to the nature and frequency of the repairs. Plaintiff contended the truck stalled and would not start again the day he purchased it and many times thereafter. He said each time it was towed to Pickard Chevrolet and repaired at no charge. On the other hand, Leon Pickard, Jr. testified the Pickard Chevrolet records showed the truck had been brought in for repairs only twice: once immediately after Mr. Jean-sonne purchased it and once in March of 1981 when the transmission failed.

Testimony concerning other problems with the truck was not disputed. In late November or early December of 1980 Jean-sonne brought the truck to Pickard Chevrolet because it had been running so poorly. Pickard sent the truck to Womack Brothers, a repair shop which specialized in diesel engines. Womack Brothers performed a rather extensive overhaul and charged $1,646.71 for the work. Jeansonne did not pay this bill and testified he assumed the work was covered under warranty and would therefore be paid by Pickard Chevrolet.

In February of 1981 the truck again quit running and Jeansonne had it towed to Womack Brothers. They repaired a relay switch and he paid $108.22 for the work.

In early March the transmission failed. The truck was towed to Pickard Chevrolet and Mr. Jeansonne was later informed he would have to pay for the transmission repair. A meeting was held and attended by Jeansonne, Calvin Daigle (the salesman), Leon Pickard, Sr., Leon Pickard, Jr. and Roy LeFleur of Womack Brothers. The men discussed the bill due Womack Brothers as well as the transmission problem. Mr. Jeansonne was informed the extended warranty did not apply to him because it was limited to the initial owner of the truck. Calvin Daigle admitted he had mistakenly told Mr. Jeansonne the extended warranty was valid. At this point Pick-ard Chevrolet apparently refused to pay the Womack Brothers’ bill and refused to repair the transmission unless Jeansonne agreed to pay for it. Jeansonne left the truck at Pickard Chevrolet and filed this suit.

After considering the above testimony, the court found Pickard Chevrolet was not aware of a defect in the engine at the time of the sale and had sold the vehicle in good faith. (During trial defendant and third party defendant, GMC, had been granted a directed verdict.) The court noted the invoice from Womack Brothers for $1,646.71 was made out to Leon Pickard (rather than to Mr. Jeansonne) and awarded Jeansonne this amount. The court concluded Mr. Jeansonne had not proved a defect existed at the time of sale and therefore was not entitled to a reeission of the sale or a reduction of the purchase price. Jeansonne then filed this appeal.

Although we do not take issue with the trial court’s conclusion that plaintiff failed to prove the engine was defective on the date of the sale, we reverse the judgment of the court. We do so because we find plaintiff is entitled to have the sale rescinded, not on the basis of redhibition, but on the basis of there having been an error as to the principal cause of the contract.

The Louisiana Civil Code recognizes that in order to have a valid contract there must be consent by the parties. Art. 1779. Error as to fact can vitiate this consent. Art. 1819. There is an error as to fact when one is ignorant of a fact which exists or believes in the existence of a fact which does not exist. Art. 1821. It is not every error of fact that will invalidate a contract. Only those concerning a principal cause for making the contract, (either as to the motive for making the contract, as to the person with whom it is made, or as to the subject matter of the contract) will invalidate it. Art. 1823. An error as to the cause of a contract must relate to the principal cause, which is defined as “... the motive, and means that consideration without which the contract would not have been made.” Art. 1825. Article 1826 elaborates on this idea:

“No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

An error as to the thing which is the subject matter of the contract invalidates it when the error bears on “... the substance or some substantial quality of the thing.” Art. 1842. The error may be as to the substantial quality of the object (art. 1844), or on some other quality which was the principal cause of making the contract. Art. 1845.

Appellant argues this case comes within art. 1845. He contends the extended warranty was the principal cause of making the contract in that he would not have purchased the truck had he known there was no warranty.

In Gour v. Daray Motor Co. Inc., 373 So.2d 571 (La.App. 3d Cir.1979), writ granted 376 So.2d 1270 (La.1979), writ dismissed 377 So.2d 1033 (La.1979) the plaintiff purchased an Oldsmobile and later discovered it was equipped with a Chevrolet engine. Although the court ultimately based its decision to rescind on the consumer protection laws (La.R.S. 51:1401 et seq.) it found ample grounds for rescission based on error as to a principal cause, under art. 1845. The court noted that under art. 1826, when the error relates to motive, in order to invalidate the contract it must be shown that the other party was apprised of the principal cause of the agreement or should have known it from the nature of the transaction.

Based on the analysis put forth by the Gour court we ask two questions. One, would the plaintiff have purchased the truck had he known there was no warranty? Two, can it be presumed the seller knew of that fact?

Plaintiff testified unequivocally at trial he would not have purchased the truck if he had known there was no warranty. The following testimony was elicited on cross-examination:

“Q. And did that assertion by Mr. Daigle influence you in whether or not you bought the truck?
A. To an extent, yes, sir.
Q. To an extent. Well, would you have bought the truck if you hadn’t have thought you had an extended warranty?
A. No, sir, because it already had over 12,000 miles on it.
Q. In other words, you knew that you couldn’t look for any repairs to be made under the original warranty—
A. Yes, sir.
Q. -when you bought it? And you thought if you had the thirty-six month or 50,000 mile extended warranty you could still get warranty work done?
A. Yes, sir.”

Our remaining inquiry then, is whether or not it can be presumed the seller knew of the fact. We conclude the seller knew or should have known that the existence of the warranty was extremely important to a potential buyer. At the time of this sale, the use of diesel engines in domestic cars and small trucks was a rather innovative, untested practice. This fact made it quite important to a purchaser to have some sort of warranty in case of engine trouble. Since at the date of sale the truck was no longer covered by the standard warranty, the extended warranty (which would be valid for the next 37,600 miles or 27 months) was obviously an attractive feature to a potential buyer. We have no difficulty in concluding that Mr. Daigle knew or should have known that a reasonable buyer such as Mr. Jeansonne would not have paid $7,000 for a diesel truck without any warranty whatsoever.

Two other cases have dealt with similar facts. In Ouachita Air Conditioning, Inc. v. Pierce, 270 So.2d 595 (La.App. 2d Cir.1972) a homeowner contracted for the installation of an air conditioning unit. The existing unit was a York brand and the air conditioning contractor was listed as a York dealer. After the unit was installed the buyer discovered the unit was an Ama-na and refused to pay for it. The court found the buyer’s principal cause was to purchase a York unit and rescinded the contract due to this error.

In Ouachita Equipment Rental Co. v. Trainer, 408 So.2d 930 (La.App. 2d Cir.1981), the plaintiff intended to lease a tractor-trailer rig with an “air-ride” cab. When he discovered the truck did not have such a feature he returned it to the lessor and refused to honor the lease agreement. The lessor sued. The court concluded the lessor was aware of the fact that the lessee’s motive was to obtain a truck with an air-ride cab, therefore the contract was invalid due to an error as to the principal cause. The court discussed the Ouachita Air Conditioning case and the Gour case and commented on page 936 as follows:

“These cases show that even though the thing delivered is very near what was requested by the party if it differed in the aspect which caused the party to enter the contract then there is error as to the motive or principal cause. Just as it was not enough that a party gets an Amana unit when he wanted a York unit or Chevrolet engine when he wanted an Oldsmobile engine, it is not sufficient that these parties got a truck when they wanted a truck with an air ride cab.”

In the present case it is not enough that Mr. Jeansonne got a diesel pick-up truck (with no warranty) when he intended to purchase a diesel pick-up truck with a warranty valid for the next 38,000 miles. We therefore conclude that the sale was invalid due to an error as to principal cause and plaintiff is entitled to recover the purchase price, plus tax and license from Pick-ard Chevrolet. However, defendants are entitled to a credit for the 6 months and 10,000 miles of use enjoyed by Mr. Jean-sonne. The vendor’s right to a credit was discussed in Nugent v. Stanley, 336 So.2d 1058 (La.App. 3d Cir.1976) at page 1062 as follows:

“When a sale is rescinded the parties are returned as nearly as possible to the situation as it existed prior to the sale. The vendee returns the property to the vendor and the vendor returns the purchase price subject to whatever adjustments are necessary for his use of the property during the period he possessed same.”

In Gour, supra, the appellate court concluded the seller was entitled to a credit of eight cents a mile. Based upon that court’s estimate of the appropriate credit for a vehicle used in 1977 and 1978, we find a credit of ten cents a mile appropriate for the truck in this case, which was used in 1980 and 1981. Since Mr. Jeansonne drove the truck approximately 10,000 miles Pick-ard Chevrolet is entitled to a credit of $1,000.

Since the object of a rescission is to annul the sale and place the parties in the same position as if there had been no sale, we must consider Mr. Jeansonne’s claim of $108.22 he paid Womack Brothers for the repair of a switch in February of 1981. If this expense had occurred many months before the truck quit running we would probably conclude it was simply a cost of maintenance which should be borne by Mr. Jeansonne. However, since this repair was performed only a few weeks before the truck’s transmission failed, we do not feel Mr. Jeansonne received any benefit from this work and therefore he should be reimbursed for this expense.

Pickard Chevrolet contends Jean-sonne should be estopped from complaining of the lack of warranty because he signed a “disclaimer of warranty” at the time of the sale. We disagree. This “disclaimer” has nothing to do with the represented manufacturer’s extended warranty, the absence of which, as above discussed, gives rise to invalidation of the sales contract based on error as to cause. And, even if we were to assume this disclaimer is relevant, it is well settled that in order for a waiver of warranty to be effective, three requirements must be met. First, the waiver must be written in clear and unambiguous terms. Second, the waiver must be contained in the sale and chattel mortgage document. Third, the waiver must either be brought to the attention of the buyer or explained to him. See Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973), rehearing denied 1973; General Motors Acceptance Corp. v. Johnson, 426 So.2d 691 (La. App. 1st Cir.1982), writ denied 433 So.2d 151 (La. 1983). The third requirement is not met in the present case.

The bill of sale, signed by plaintiff, was introduced into evidence. It contained a “disclaimer of warranties” which had a space for a notary’s signature. (However, the statement was not notarized.) Contrary to the dealer’s contention, Jeansonne did not sign the disclaimer. His signature appears above the disclaimer, is affixed in a different context, and the form itself does not contemplate a signatory acknowledgment to the disclaimer. When asked if he read the bill of sale when he signed it, Mr. Jeansonne testified, “I doubt it, no, sir.” No evidence was offered showing anyone had explained the disclaimer to him or otherwise called it to his attention.

This issue was discussed in General Motors Acceptance Corp. v. Johnson, supra, at page 695:

“The act of sale with mortgage does not feature a written, signed acknowledgment that the debtor has read and understood his waiver or warranty, nor do the affidavits on record indicate that the waiver provision was demonstrated or explained to Johnson. Thus, the signed waiver in the act of sale does not sustain summary judgment in favor of GMAC.”

Therefore, even if we were to consider this a relevant issue, plaintiff is not es-topped to complain of the lack of warranty simply because he signed a sales form containing language purporting to be a disclaimer.

Pickard Chevrolet argues further that Mr. Jeansonne was informed of the lack of the manufacturer’s extended warranty in the two pamphlets given to him by the salesman at the time of the sale. This argument is self-defeating. The two pamphlets, entitled “Your GM Continuous Protection Plan Agreement” and “Pacts On How You Can Protect Yourself Against Major Repair Bills — Plus ! — for 36 Months/50,000 Miles” do in fact each contain a statement that the extended warranty is not valid for anyone but the original owner of the vehicle. However, the gist of Pickard’s argument is that even though the salesman informed Mr. Jeansonne the truck was covered by the extended warranty, and even though the salesman presented him with two pamphlets explaining the warranty, Mr. Jeansonne should not have relied on these actions but should have read every word of the pamphlets and should have learned therein that the warranty was inapplicable to him. We find this reasoning convoluted and conclude that because of the salesman’s representations to him and because he was given two pamphlets concerning the warranty, Mr. Jeansonne was entirely reasonable in believing the truck he purchased was covered by the warranty. The proven object of his purchase was a truck with an extended warranty. This was represented to him, he thought he was buying it, but he did not receive it.

For these reasons we hereby order the sale of the 1980 Chevrolet diesel pick-up truck rescinded. Leon Pickard Chevrolet shall return to appellant the purchase price of $7,000, plus tax and license of $362; shall pay to appellant the additional sum of $108.22 for the minor repairs made by Womack Brothers; a total of $7,470.22. Because of Mr. Jeansonne’s use of the truck for a six month period and for approximately 10,000 miles, Leon Pickard is entitled to a credit of $1,000.

DECREE

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Robert E. Jeansonne, and against Leon Pickard Chevrolet, Inc., for the sum of $6,470.22, plus legal interest thereon from date of judgment, until paid; and that there be further judgment ordering Robert E. Jeansonne to relinquish possession of the vehicle to Leon Pickard Chevrolet, Inc. and to execute in its favor all necessary title documents.

Leon Pickard Chevrolet, Inc. is to pay all costs of court, including those assessed on appeal.

REVERSED AND RENDERED.

SAVOIE, J.,

concurs in the reversal but would find a breach of contract for failure to provide service under the warranty and would remand to the trial court for a determination of damages for breach of contract.

      . Since the trial court found the plaintiff was not entitled to a rescission of the sale or a reduction of the purchase price, we are not certain of the basis for allowing the recovery of $1,646.71. However, we need not concern ourselves with this issue because Pickard Chevrolet did not file an appeal or an answer and therefore is not entitled to have the judgment modified. See Code Civ.P. art. 2133.

      2. Counsel is referring to an assertion by Mr. Daigle that the truck was under an extended warranty.

      . The truck was apparently first purchased by the original owner some nine months prior to Mr. Jeansonne’s purchase.

      . Counsel advised this court the $1,646.71 previously awarded appellant has been used to Iiqui-date the charges of Womack Brothers, thus negating its consideration.


author: EDWARDS, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Family Security, In the Interest of Michelle Timberlake v. Miles Jennings KING.
    No. 83-CA-0838.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      James R. Murray, Baton Rouge, for plaintiff-appellant State of Louisiana, Through Dept, of Health and Human Resources, Etc.
    Sumpter Davis, III, Baton Rouge, for defendant-appellee Miles Jennings King.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

From a judgment sustaining the defendant’s declinatory exceptions to the court’s personal jurisdiction, plaintiff appeals. We reverse and remand.

Under the authority of LSA-R.S. 46:236.-1, the State of Louisiana, through the Department of Health and Human Resources, filed suit on behalf of Terry Lynn Timber-lake against Miles Jennings King to establish his paternity of her minor child, Michelle. The State alleges in its petition that King, presently domiciled in Oklahoma, maintained a sexual relationship with Ms. Timberlake, domiciled in Louisiana, from November 1979 through March 1982, which resulted in the birth of Michelle on December 6, 1980. Personal jurisdiction is based upon Louisiana’s Long Arm Statute, in particular, LSA-R.S. 13:3201(g) which provides:

A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(g) parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.

The State served the petition and citation by certified mail, pursuant to LSA-R.S. 13:3204.

King filed two declinatory exceptions, alleging lack of jurisdiction over the person and insufficiency of service of process. According to the court’s minutes, at the first scheduled hearing of the exceptions, the trial judge entertained arguments, asked for briefs to be submitted, and apparently scheduled a second hearing. But before the second scheduled hearing was heard, the court rendered the following ruling and terse explanation: “Exception sustained. Use of Long Arm Statute would violate due process. Hirsch v. Hirsch 378 So.2d 539 (La.App.1979).” From the subsequently signed judgment, the State appeals.

No transcript was made of the first hearing on the exception. Ordinarily, where factual issues are involved (even jurisdictional facts) and the record on appeal contains no transcript, nor a narrative of the facts, the appellate court will impute the absence of the transcript to the appellant, presume that the trial court’s judgment is supported by competent evidence and affirm the judgment. See St. Pierre v. St. Pierre, 425 So.2d 254 (La.App. 1st Cir.1982); DeLanueville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir.1980). In this case, however, it is clear from the record that the trial court’s judgment did not turn upon the valuation of evidence but rests entirely on the interpretation and application of the holding in Hirsch, Since the judgment did not depend upon a resolution of factual issues, we will not fault the appellant for the missing transcript nor apply the presumption in this case.

In its brief, the State alleges that the trial court erroneously declined to accept any evidence of Mr. King’s contacts with Louisiana and argues that the trial court erroneously held the Long Arm Statute unconstitutional.

Without a transcript of the proceedings, we cannot determine whether or not the trial court erroneously declined to accept the evidence of Mr. King’s contacts, if such evidence was in fact offered at the hearing. However, it is apparent from the cited reliance on Hirsch that the trial court held the Long Arm Statute unconstitutional only in its application in the present case. It did not hold the statute unconstitutional on its face. The issue then is whether the holding of Hirsch prohibits a trial court’s exercise of long arm jurisdiction in a suit to establish a nonresident’s paternity. We hold that it does not.

First of all, on its face Hirsch is distinguishable from the present case. The issue in Hirsch was whether the concept of continuing jurisdiction could be applied in a suit for post-divorce alimony to establish personal jurisdiction over a nonresident represented by a court-appointed attorney under LSA-C.C.P. art. 5091.

Two years after her divorce became final, the former wife in Hirsch filed a rule for alimony against her former husband, who had since moved to Florida. Unable to serve him personally, she petitioned for a court-appointed attorney, whom she served pursuant to LSA-C.C.P. art. 6, and obtained a judgment. On appeal the Fourth Circuit reversed. Since there was no original award of alimony incidental to the previous divorce suit when the court had jurisdiction of the defendant, the appellate court reasoned that the suit for post-divorce alimony was a separate proceeding from the previous suit for divorce and held that the trial court did not retain personal jurisdiction over the defendant under the theory of continuing jurisdiction, recognized in Imperial v. Hardy, 302 So.2d 5 (La.1974). Since the trial court did not have jurisdiction over defendant, service on the court-appointed attorney violated due process and was therefore invalid. The court further held, without explanation, that the Long Arm Statute, particularly R.S. 13:3201(f), does not authorize personal jurisdiction over a nonresident in a suit for “alimony for the first time after the divorce had been obtained as such would be an unconstitutional breach of due process.” Hirsch, 378 So.2d at 542-43.

The present case does not involve a suit for post-divorce alimony, nor is personal jurisdiction based upon service on a court-appointed attorney under article 6. Moreover, the present suit does not involve the exercise of jurisdiction for a cause of action arising under R.S. 13:3201(f), but for a cause of action arising under R.S. 13:3201(g). We fail then to see how the holding in Hirsch applies in this case to preclude the application of the pertinent provision in the Long Arm Statute.

Defendant argues that the Hirsch rationale nonetheless supports the trial court’s ruling because the trial court never had jurisdiction over the defendant: “In this case, the defendant was never a ‘litigant’ until the instant proceeding. Furthermore, it is not alleged that the defendant was ever subject to ‘the personal jurisdiction of this court.’ ” Defendant’s argument assumes that a court may not exercise long arm jurisdiction over a nonresident unless it can establish continuing jurisdiction from a former proceeding.

A similar argument was raised and rejected in a recent case decided by the Second Circuit, which declined to follow Hirsch. In Stuckey v. Stuckey, 434 So.2d 513 (La.App. 2nd Cir.1983), the plaintiff sued her nonresident husband for post-divorce alimony under circumstances substantially similar to those in Hirsch, except that the plaintiff attempted to establish jurisdiction solely on the basis of R.S. 13:3201(f), rather than under article 6. Defendant argued that the statute was not designed or intended to confer jurisdiction over a nonresident in such a suit unless his obligation to pay support had been established in a previous proceeding. Rejecting defendant’s argument, the Second Circuit said,

... To interpret this provision to only apply to those cases where a former award of alimony has been made would circumvent interpreting it liberally in favor of finding jurisdiction and would also fail to give effect to the legislature’s clear intention to permit courts of this state, through the use of the Long Arm Statute, to tap the full potential of jurisdiction in personam over nonresidents. Furthermore, such a narrow construction would render less beneficial the utilization of this section of the statute in support cases. The only purpose which the legislature could have intended in the enactment of this provision was to extend jurisdiction to the maximum acceptable limits over nonresident defendants in support matters. The narrow construction proposed by defendant is not as logical as our more liberal interpretation because it is settled that where a former judgment makes a valid award of alimony or support, continuing jurisdiction applies and is available for asserting jurisdiction over a nonresident defendant. See and compare Imperial v. Hardy, 302 So.2d 5 (La.1974); Holden v. Holden, 374 So.2d 749 (La.App. 3d Cir.1979); Defatta v. Defatta, 352 So.2d 287 (La.App. 2d Cir.1977) and cases cited therein. Therefore, no real extension of jurisdiction over nonresidents would have been obtained by the enactment of this provision for such a limited purpose.

Id. at 516.

To the extent the Hirsch holding can be extended to the present facts, we decline to apply it and subscribe to the reasoning of the Second Circuit in Stuckey. However, we note that Hirsch need not be read as broadly as the defendant in Stuckey or as the defendant here would have it read.

In Hirsch, the wife served the nonresident husband under LSA-C.C.P. art. 6 through an attorney appointed to represent him under LSA-C.C.P. art. 5091. According to Ray v. South Central Bell Telephone Company, 315 So.2d 759 (La.1975), where personal jurisdiction is based upon the Long Arm Statute, a valid service may only be made by certified mail under R.S. 13:3204, and may not be made upon a court-appointed attorney under LSA-C.C.P. art. 5091. Thus, the conclusion in Hirsch that the use of the Long Arm Statute would violate due process is consistent with the holding in Ray, and the result is therefore correct on the facts.

Accordingly, we conclude that the trial court erroneously dismissed plaintiff’s suit after sustaining the declinatory exceptions on the basis of the holding in Hirsch. However, the trial court correctly sustained the exceptions on other grounds. As defendant correctly points out, the State’s petition is completely devoid of any factual allegations that Michelle was conceived while defendant either “resided in or was in” this state, the express statutory “minimum contacts” necessary to establish jurisdiction over a nonresident defendant in a paternity suit under R.S. 13:3201(g). Particularly, the petition does not allege whether the parties’ sexual relationship occurred wholly or partially in this state, whether Michelle was conceived or born in this state, or whether the defendant ever resided in or was in this state.

However, under LSA-C.C.P. art. 932, When the grounds of the objection pleaded in the declinatory exception may be removed by amendment of the petition or other action by the plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.

Our jurisprudence uniformly construes this provision to require the trial court to give plaintiff an opportunity to cure the jurisdictional defects of his petition by amendment. See Tano Corp. v. Phacts Leasing Co., Inc., 399 So.2d 214 (La.App. 1st Cir. 1981); Ticheli v. Silmon, 304 So.2d 792 (La.App. 2nd Cir.1974); Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir.1980); Duplechain v. Clausing Machine Tools, 420 So.2d 720 (La.App. 4th Cir.1982).

For the foregoing reasons, we remand this case to the trial court to grant leave to the State to amend its petition within a fixed time after our judgment becomes final. All costs of these proceedings are assessed against the appellee.

REVERSED AND REMANDED.

      . In the Notice of Appeal, the court reporter’s typewritten estimation of the costs of the hearing indicates that no testimony was taken: “Estimated Costs: (none — no testimony, argument only).” The court minutes reflect this also, as indicated above. It is the apparent practice of the Family Court not to transcribe proceedings where arguments only are heard.

      . This argument confuses "continuing jurisdiction” available to a court exercising personal jurisdiction under art. 6 of the Code of Civil Procedure with long arm jurisdiction under R.S. 13:3201 et seq. See Parker v. Parker, 382 So.2d 201, 202, n. 1 (La.App. 2nd Cir.1980).

      . The trial court did not hold R.S. 13:3201(g) unconstitutional on its face, as noted above, nor has the defendant raised this argument on appeal. We will therefore presume that the statute is facially valid. See Everett v. Goldman, 359 So.2d 1256 (La.1978); Stuckey, 434 So.2d 513; cf. Singlemann v. Davis, 240 La. 929, 125 So.2d 414 (1960). Consequently, we need not decide, as plaintiff urges, whether an act of conception within this state constitutes sufficient “minimum contacts" under the due process clause of the Fourteenth Amendment.

      . The newly created Fifth Circuit has yet to rule on the issue.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Richard D. WATERLOO.
    No. 83 KA 0857.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ossie Brown, Dist. Atty. by Richard Johnson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Bryan McDaniel, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

Defendant, Richard Waterloo, was charged by a bill of information with the manufacture of Methamphetamine in violation of La.R.S. 40:967 A. The defendant originally pled not guilty, but subsequently changed his plea to one of guilty. The defendant was sentenced to two years supervised probation. He was additionally ordered to pay $1,000.00 to the Judicial Expense Fund, work two days of community service, and enroll in a substance abuse program for treatment together with mandatory periodic urinalysis.

Defendant reserved his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s denial of motions to suppress and reserving his right to withdraw the guilty plea if successful on appeal.

In July 1981, a pest exterminator entered the defendant’s apartment to spray for insects. Upon entering the exterminator noticed an assortment of chemicals and laboratory equipment. The exterminator informed the apartment complex manager of what he saw within defendant’s apartment. The apartment manager then viewed the apartment herself. Believing this to be somewhat suspicious, the apartment manager informed the security guard, Sgt. Maranto, who is also a sheriff’s deputy, of what she and the exterminator observed in the apartment.

Based upon the above information, a report from the Drug Enforcement Administration that a person named Waterloo from Texas had been supplying chemicals to covert laboratories in Louisiana, and information that the defendant had moved from Houston, Texas, Sgt. Maranto secured a search warrant. The Warrant was issued for “essential chemicals and/or precursors to several controlled dangerous substances, Methamphetamine, LSD, Mescaline, DMT or Amphetamine Sulfate.”

Police officers and several crime lab technicians executed the warrant. While the technicians were testing the various chemicals, police officers went to defendant’s place of employment and arrested him.

The police and defendant returned to the apartment where the technicians were still testing the chemicals. Because the search proved time consuming the defendant was promised leniency if he would assist the officers in identifying the various chemicals. The defendant admitted producing Methamphetamine and directed officers to a quantity of the drug located in a kitchen drawer.

ASSIGNMENT OF ERROR NO. 1

The defendant contends the trial court erred in denying his motion to suppress the evidence seized in defendant’s apartment. Defendant argues that the search warrant was unlawful because it authorized the seizure of items which were not contraband under Louisiana law, the items to be seized were not particularly described in the warrant, and the affiant failed to allege sufficient facts for the judge to reasonably conclude there was probable cause to believe the defendant had committed any wrong doing.

Defendant asserts in his first assignment that a warrant may not issue in this case because the essential chemicals and precursors to controlled substances are not prohibited under La.R.S. 40:964. Therefore, defendant argues that a lawful search warrant may only list as the items to be seized the controlled dangerous substance itself,

La.Code Crim.P. art. 161 authorizes the issuance of a search warrant for anything within the territorial jurisdiction of the court which is intended for or has been used as a means of committing an offense, or which may tend to prove the commission of an offense.

We find that La.Code Crim.P. art. 161 authorizes a magistrate to issue a warrant to search for and seize such items as those seized in the case at bar.

Secondly, the defendant argues that the warrant failed to particularly describe the things to be seized as mandated by La.Code Crim.P. art. 162 which states that the search warrant shall “... particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.”

Defendant asserts that the language in the warrant was too vague and subject to abuse by law enforcement officers, i.e., naming sodium solutions and alcohols as essential chemicals and precursors.

Search warrants should be tested by common sense and realistic interpretation without elaborate specificity. State v. Watson, 423 So.2d 1130 (La.1982); State v. Huffman, 419 So.2d 458 (La.1982). The desired result encourages police officers to submit their evidence to judicial officers before acting. State v. Huffman, supra. The Courts also realize that they are normally drafted by non lawyers in the midst and haste of a criminal investigation. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The language used in the warrant was the most reasonable that could be used without naming every possible essential chemical or precursor to every controlled dangerous substance. This argument is without merit.

Thirdly, defendant asserts the warrant was unlawful because the affidavit failed to allege enough facts for the judge to reasonably conclude there was probable cause to search defendant’s apartment.

In State v. Huffman, supra, the Supreme Court reasoned that probable cause sufficient to support a search warrant exists when facts and circumstances, of which the affiant has personal knowledge or reasonably trustworthy information, are sufficient to support reasonable belief that the offense has been committed and that evidence or contraband may be found at the place to be searched.

The affiant, Sgt. Maranto, stated as to what he had been told by the apartment manager concerning the various chemicals and equipment. The affidavit also stated that the Drug Enforcement Administration revealed that a suspect named Waterloo from Texas had been delivering chemicals to clandestine laboratories in Louisiana. The affidavit also states that Waterloo had moved to Louisiana from Houston, Texas.

The proper test for the probable cause requirement is a common sense and realistic interpretation without requiring elaborate specificity. United States v. Ventresca, supra; State v. Huffman, supra. A reviewing court should accord great deference to the magistrate when determining probable cause. State v. Ogden, 391 So.2d 434 (La.1980).

We conclude that the trial judge could determine that sufficient probable cause existed to issue the search warrant.

ASSIGNMENT OF ERROR NO. 2

The defendant argues that the trial judge erred in denying defendant’s motion to suppress evidence seized as the result of a tainted confession. Specifically, the defendant claims that he made a confession after one of the police officers made him a promise of leniency if he confessed to producing Methamphetamine.

The trial judge ruled that the confession was given after a promise of leniency, and therefore was not voluntary, nor admissible at trial. However, the trial judge did allow the evidence seized after the confession was given because the state had shown that the evidence would have been inevitably seized pursuant to the valid search warrant. The judge ruled to allow the evidence because testimony of Ms. Fi-nalet of the State Police crime lab established they had a lawful right to be there; they were searching the apartment room by room; and they found the Methamphetamine in a kitchen drawer.

In Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) the United States Supreme Court stated: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploration of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

We find that the evidence seized was sufficiently purged of the tainted confession. The defendant’s action of leading police to the Methamphetamine merely helped to facilitate the police search for the drug.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error the defendant contends the trial judge erred by allowing the state to elicit the testimony of Don Cox and Candice Berry during a hearing to suppress the warrant. Specifically, defendant argues that such testimony was not available to the judge who issued the warrant, and it should not be considered by the court when passing on the validity of the warrant.

The issue in the trial court was the sufficiency of the affidavit presented to the magistrate. When issuing a search warrant a magistrate is limited to the information contained in the four corners of the affidavit. However, on review the inquiry is not so limited. State v. Klar, 400 So.2d 610 (La.1981). The trial court has great latitude in determining the relevancy of evidence, and absent a clear abuse of that discretion the trial court should not be overturned. State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983).

Defense counsel sought to question the reliability and veracity of Sgt. Mar-anto’s affidavit, therefore, the trial judge was correct in hearing testimony concerning the truth of statements in the affidavit.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error defendant argues that the trial judge erred by allowing an expert witness to answer a hypothetical question posed by the state. Specifically, on cross-examination of Dr. Richard Gandour, the state asked the question as follows:

Hypothetically, you leave this courtroom and walk next door. And in this room next door, there’s a series of multiple setups of chemicals, there’s all kinds of chemicals. There’s bunsen burners working. There’s gas on. Everything’s set there to produce something. Without having but a short period of time to just glance — now, it’s not a legal or it’s not a normal place that you find a laboratory— what would be the first thoughts entering your mind?

Defendant objected to the hypothetical question on the grounds that the expert witness was qualified as an expert in organic and bio-organic chemistry, and was not qualified as an expert in clandestine laboratories nor had the knowledge to answer such a hypothetical.

An opinion of an expert witness not within his personal knowledge may be elicited by a hypothetical question which is in proper form and assumes facts which the evidence proves or tends to prove. State v. Cass, 356 So.2d 936 (La.1977).

We find that the hypothetical question was in proper form. The facts only assumed that there were chemicals and equipment set up in defendant's apartment, and that defendant was producing something.

We find no abuse of the trial judge’s discretion in allowing the expert witness to answer the hypothetical.

This assignment of error is without merit. The conviction and sentence are affirmed.

AFFIRMED.