text:
    Rudolph R. SCHOEMANN, Individually, and as Natural Tutor on Behalf of the Estate of the Minor Plaintiff, Rodney Ryan Schoemann v. SKATE COUNTRY, INC., d/b/a Skate East and Chubb/Pacific Indemnity Group, et al.
    No. CA-1918.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      E. Ross Buckley, Jr., Blue, Williams & Buckley, Metairie, for defendants-appel-lees.
    Frederick J. Gisevius, Jr., David E. Caruso, Jr., Law Offices of Frederick J. Gisevi-us, Jr., Matt Greenbaum, New Orleans, for plaintiff-appellant.
    Rudolph R. Schoemann, New Orleans, in pro. per.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

Appellant, Rudolph R. Schoemann, filed suit individually and as natural tutor of his unemancipated son, Rodney Schoemann, against Skate Country, Inc., Federal Insurance Company (the liability insurer for Skate Country, Inc.) and others for damages sustained by Rodney as a result of an accident which occurred on the premises of Skate Country, Inc. In his individual action Mr. Schoemann filed suit for medical expenses he incurred in treating his son. Federal Insurance Company and Skate Country, Inc. filed a third party demand against State Farm Fire and Casualty Company (the liability insurer of Florence Schoemann, Rodney’s mother, and Richard Schoemann, Rodney’s brother) for tort indemnity and/or contribution for the alleged negligence of Richard Schoemann and the vicarious responsibility of Florence Schoe-mann. By amended petition, Mr. Schoe-mann added State Farm Fire and Casualty Company (hereinafter referred to as State Farm) as a co-defendant. Due to a conflict of interest, Rudolph Schoemann was removed as Rodney’s natural tutor and Peggy Salathe, Rodney’s major sister, was appointed as his dative tutrix. On July 14, 1984, Rodney reached the age of majority and was substituted as party plaintiff on October 8, 1984.

The trial court rendered a summary judgment (without written reasons) in favor of State Farm as to both plaintiffs and then denied the motion for new trial filed by Rudolph Schoemann. It is from the summary judgment that appellants devolutively appeal.

The record shows that approximately six years prior to the accident in question, Florence and Rudolph Schoemann were divorced, and Mrs. Schoemann was granted legal custody of their natural children, including Rodney Schoemann. In the custody decree Mr. Schoemann was granted visitation rights on weekends, holidays and for three weeks during summer vacation. At no time following the divorce did Mr. Schoemann obtain legal custody of the minor, and Rodney continued to reside with his mother, subject to his (Mr. Schoe-mann’s) visitation rights, through the date of the accident.

On March 4, 1977 Rodney went to his father’s home to spend the weekend. The following evening Mr. Schoemann took his three sons to Skate Country, Inc. so that they could participate in two skating sessions. After the rink closed the boys were asked to leave the rink building and wait for their father in the parking lot. While in the lot, Rodney sustained the injuries that are the basis of this lawsuit.

At the time of the accident Florence Schoemann’s personal residence was covered by a homeowner’s liability insurance policy with State Farm. The policy provided in relevant part:

SECTION II
COVERAGES
COVERAGE E — PERSONAL LIABILITY;
This company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies ...
COVERAGE F — MEDICAL PAYMENTS TO OTHERS
This company agrees to pay all reasonable medical expenses, incurred within one year from the date of the accident, to or for each person who sustains bodily injury to which this insurance applies ...
XXXXXXXX
EXCLUSIONS
THIS POLICY DOES NOT APPLY:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
(g) TO BODILY INJURY TO ANY INSURED WITHIN THE MEANING OF PARTS (1) AND (2) OF DEFINITION OF INSURED.
XXXXXXXX
DEFINITIONS
Applicable to Both Sections I and II. When used in this policy the following definitions apply:
(a) “Insured” means
(1) the Named Insured stated in the Declarations of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured, ...
XXXXXXXX
Applicable Only to Section II
1. “bodily injury” means bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.
2. “Medical expenses” means expenses for necessary medical, surgical, x-ray, dental services, including prosthetic services, ambulance, hospital, professional nursing and funeral services.

In its motion for summary judgment State Farm averred that under the terms of the homeowner’s policy issued to Florence Schoemann, State Farm was not required to pay for personal injuries to an “insured” and that as a relative of the named insured and a resident of the named insured’s household, Rodney was an “insured” as defined by the policy.

The primary issue presented by this appeal, therefore, is whether summary judgment was proper given the fact that on the night of the accident Rodney was living in his father’s home. We conclude that it was, and we affirm.

A motion for summary judgment should only be granted where there is no genuine issue as to material fact and mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966. The burden of proof rests with the mover, and all reasonable doubt must be resolved against the party moving for summary judgment. Latter & Blum, Inc. v. Von Ruekfrang, 249 So.2d 229 (La.App. 4th Cir.1971), app. on remand 288 So.2d 370 (La.App.1974).

In the instant case Rodney’s mother was his legal guardian, and he lived with her subject to his father’s visitation rights. Under such circumstances there can be no reasonable doubt that the child was a resident of his mother’s household. Ursin v. Oubre, 343 So.2d 1189 (La.App. 4th Cir.1977). Mr. Schoemann concedes as much when he asserts in his affidavit that “the children had in effect two residences.”

Appellants assert that a summary judgment was improper because the phrase “residents of the named insured’s household” is ambiguous and ambiguities must be construed against the insurer. LSA C.C. art. 1957; Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir.1973), writ denied 283 So.2d 501 (La.). We do not believe that the phrase was ambiguous as applied to the child’s residency in his mother’s household, and the phrase was not rendered ambiguous by virtue of the fact that the child was spending the weekend with his father on the night of the accident.

In Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238 (1965), David Taylor, an un-emancipated minor, was living with his uncle in Louisiana when he was involved in an automobile accident in Louisiana. David’s father, with whom David had lived all of his life, resided in Arkansas. Approximately one month prior to the accident, the minor moved from his father’s home in Arkansas to live and work with his uncle in Louisiana. The Supreme Court held that the minor was a resident of his father’s household and, further, that “it was not necessary that he be under his parents’ roof at all times in order to be a 'resident of the same household.’ ” Taylor, supra 178 So.2d at 243.

We conclude that in the instant case, the minor’s temporary absence from his mother’s home did not alter his status as a resident of her household for purposes of her homeowner’s liability insurance.

Appellant, Rudolph Schoemann, further argues regarding his claim for medical expenses incurred in the treatment of Rodney, that he was neither a named insured nor an omnibus insured under the terms of the policy and, therefore, was not subject to the policy’s exclusionary provisions. This contention is without merit as the policy clearly provides that it does not apply to “bodily injury to an insured.” The bodily injuries herein were sustained by Rodney Schoemann and, as discussed above, he falls within the definition of “an insured.”

Mr. Schoemann also avers that the term “bodily injuries” as defined by the policy does not include “medical expenses.” We similarly find this contention to be without merit. The policy defines “bodily injuries” as “bodily injury, sickness or disease, including care, loss of services and death resulting therefrom.” (emphasis added). It is clear that the exclusionary provisions of the policy encompass expenses for treatment incident to personal injuries to an insured as defined by the policy. Accordingly, we find that the trial court was correct in granting the motion for summary judgment.

For the above reasons, we affirm the judgment.

All costs of this appeal are assessed against appellant.


source: Caselaw Access Project

author: ARMSTRONG, Judge.

license: Public Domain

text:
    Obizene Hines GARRETT v. NEW ORLEANS PUBLIC SERVICE, INCORPORATED.
    No. CA-2033.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Floyd F. Greene, New Orleans, for defendant-appellant.
    Paul Brian Spurlock, Metairie, for plaintiff-appellee.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

Plaintiff, Mrs. Obizene Hines Garrett, filed suit against New Orleans Public Service Inc., (“NOPSI”), seeking damages for an injury sustained on a NOPSI bus. After a trial on the merits the trial court rendered judgment in favor of plaintiff. The defendant appeals. We affirm.

On February 18, 1982, plaintiff was a passenger on a NOPSI bus when a plastic light cover fell and struck her over the left ear and on the angle between her left shoulder and her/neck. Plaintiff reported the incident to the operator of the bus and subsequently sought medical treatment for the injury. From shortly after the accident until May, 1982, plaintiff was treated by Dr. Condie. During that time, at NOPSI’s request, she was also seen by Dr. Brown. Plaintiff stopped seeing Dr. Condie in May and did not seek treatment again until six months later when she sought treatment from Dr. Kewalramani.

At trial Dr. Condie, a general practitioner and plaintiff’s first treating physician, testified that he diagnosed plaintiff as suffering from cervical lumbrosacral sprain. Plaintiff’s second treating physician, Dr. Kewalramani, who is board certified in physical medicine rehabilitation, Electro-myography and Electrodiagnosis, testified that when plaintiff sought his medical advice he initially diagnosed her as suffering from myofascial trauma to her left neck-shoulder angle and trauma to the left bra-chial plexus, post traumatic cephalgia and cervical spondylosis. Dr. Kewalramani’s diagnosis was confirmed through the use of x-rays and thermography, and he ultimately concluded that there was trauma to the brachial plexus and to the musculoliga-mentous structures of the neck, which diagnosis was consistent with plaintiff’s accident. Dr. Kewalramani also testified that it is not unusual for injured nerve fibers to continue to cause pain for several years after they are injured.

Plaintiff testified that after the accident she suffered from pain in her shoulder as well as numbness in her shoulder and hand. Plaintiff’s daughter testified that her mother suffered from pain after the accident.

Dr. Gernon Brown, a board certified orthopedist, testified that he was of the opinion that plaintiff did not reveal any objective evidence of injury.

The trial court found NOPSI liable for plaintiff’s injuries. Based in large part on the substantial expert medical testimony provided by plaintiff’s treating physician, Dr. Kewalramani, the trial court awarded the plaintiff $10,000 in damages for pain and suffering, $6,000 in damages for loss of wages, and $2,016 for medical expenses.

NOPSI argues that the $10,000 award of damages for pain and suffering is excessive and inconsistent with the evidence adduced at trial. Appellant bases its argument on the uncontroverted evidence that plaintiff did not see a doctor for six months, the time between the last time she saw Dr. Condie and the first time she saw Dr. Kewalramani.

“In the assessment of damages in cases of quasi offenses much discretion must be left to the judge or jury.” Perniciaro v. Brinch, 384 So.2d 392 (La.1980). Thus the issue becomes, did the trial judge abuse his discretion in making this award to plaintiff.

The record shows that the trial judge took into consideration all of the evidence in making the award. In his oral reasons for judgment the trial judge stated that he was reducing the amount he would normally award under these circumstances because of the six month gap in treatment. Consequently, we have concluded that the trial judge took all of the pertinent facts into consideration and did not abuse his discretion in making this award.

Appellant also claims that plaintiff did not present sufficient evidence to show what her earnings were, or that she would have been able to earn any money after the accident.

At trial, plaintiffs former employer, Mr. Robert Reimsnyder, testified that at the time of the accident plaintiff worked as a cook for him at his restaurant, at a salary of approximately $200 per week. Mr. Reimsnyder also testified that his restaurant went out of business approximately two months after the accident.

Both Drs. Condie and Kewalramani testified that plaintiff was not capable of working as a cook while she was under their care.

Given these facts we believe that plaintiff produced sufficient proof of her loss of earnings. The fact that the restaurant, at which plaintiff was employed, went out of business one month after her accident is irrelevant. Since plaintiff could not work she is entitled to damages for lost wages. In sum we conclude that the trial judge did not abuse his discretion in awarding plaintiff $6,000 for loss of earnings.

Finally, appellant complains that the trial court incorrectly gave more weight to the medical testimony of Dr. Kewalramani, who is board certified in Physical Medicine and Rehabilitation and in Electromyogra-phy and Electrodiagnosis, which deals with diagnosis of neurological derangements,” than to the testimony of Dr. Gernon Brown, a board certified orthopedist. The trial court has discretion in evaluating medical testimony. “Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review ...” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The trial judge was apparently more impressed by Dr. Kewalramani’s testimony than by Dr. Brown’s testimony. This is a credibility evaluation and should not be disturbed upon appellate review.

For the foregoing reasons the judgment of the trial court is affirmed. Appellant is assessed for all costs of this appeal.

AFFIRMED.


author: L. JULIAN SAMUEL, Judge Pro Tem.

text:
    SAJARE INTERESTS, LTD. and Brian Investments, Inc. v. ESPLANADE MANAGEMENT, INC. and New Orleans Federal Savings and Loan Association.
    No. CA-1887.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for plaintiff-appellant.
    S. Sanford Levy, New Orleans, for defendant-appellee.
    Before WILLIAMS and BYRNES, JJ„ and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Plaintiffs appeal from a judgment dismissing their suit on an exception of “No Cause or Right of Action” and ordering the removal of “Notice of Lis Pendens” from the records of the Recorder of Mortgages for the Parish of Orleans.

Brian Investments, Ltd. and its subsidiary, Sajare Interests, Ltd., filed this suit against Esplanade Management, Inc. and New Orleans Federal Savings and Loan Association to dissolve the sale of certain property. In pertinent part, the petition alleges: On July 16, 1982, plaintiff Brian sold to defendant Esplanade immovable property for a total consideration of $467,-090.58. Of that amount, $437,067.55 was paid in cash and a promissory note dated July 16, 1982 in the amount of $30,023.23, the balance of the sale price, was executed by the purchaser in favor of the Internal Revenue Service. The note was payable on demand, six months after date. The petition further asserts “defendant has failed and refused to make payment of the credit portion of the purchase price when it became due and owing and despite demand, entitling the vendor to a dissolution of the sale.” The petition also alleges that Sajare executed a promissory note to Esplanade in the amount of $99,590.00 as part of the consideration for the sale and the suit also seeks judgment cancelling this note. Finally, the petition tenders return of the alleged cash consideration paid, $437,067.55, as a condition of the judgment returning title and possession of the property to Brian.

Defendant Esplanade filed an “Exception of No Cause or Right of Action” to the petition. The basis for the exception was that plaintiff did not allege any authority for acting on behalf of the Internal Revenue Service, payee on the note, and that the law does not permit dissolution of a sale if a portion of the purchase price remains unpaid. An act of cash sale of property from Brian to Esplanade, dated July 16, 1982, was somehow entered into the record. The act recites: “This sale is made and accepted for and in consideration of the price and sum of THREE HUNDRED THIRTY THOUSAND AND NO/100 ($330,000.00) DOLLARS which the said Purchaser has well and truly paid, in ready and current money to the said vendor who hereby acknowledges the receipt thereof -” The record on appeal does not contain any showing of a hearing on Esplanade’s exceptions and we do not know how this act of sale happens to be included in the record.

The district court rendered judgment, without reasons, as follows:

IT IS ORDERED, ADJUDGED AND DECREED That the Exception of No Cause or Right of Action, filed herein by defendant, ESPLANADE MANAGEMENT, INC., be and the same is hereby maintained dismissing the suit of plaintiffs, SAJARE INTERESTS, LTD., and BRIAN INVESTMENTS, INC., as to the said plaintiff (sic) ESPLANADE MANAGEMENT, IN.C., only, at the said plaintiffs’ costs.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the Motion to Remove “Notice of Lis Pendens” filed herein by defendant, ESPLANADE MANAGEMENT, INC., be and the same is hereby granted ordering the plaintiffs’ “Notice of Lis Pendens” to be stricken from the records of the Recorder of Mortgages for the Parish of Orleans, MOB 2427 Folio 31.

Appellants contend the trial court erred in maintaining the exceptions. Relying on LSA-C.C. art. 2561, they assert that the petition alleges sufficient facts to state a cause of action for dissolution of the sale. They argue the documents “attached” to the exception were inadmissible on an exception of no cause of action. Appellee contends that appellants were not holders of the note to the IRS and therefore could not sue without the IRS. Esplanade also asserts that the authentic act of sale purporting to be a cash sale is full and complete proof of the sale since there was no allegation of fraud, forgery or error. Appellants finally argue, alternatively, that the trial judge should have permitted them to amend the petition rather than dismiss their suit.

Imprimis, we note that, regardless of any other consideration, C.C.P. Art. 934 requires that a judgment sustaining a peremptory exception (and under C.C.P. Art. 927(4) and (5) no cause of action and no right of action are peremptory exceptions), shall order an amendment within a delay allowed by the court when the objection pleaded by the exception may be removed by amendment. Here there are totally conflicting arguments by the appellants (that the sale was a credit sale) and by the appellees (that the sale was a cash sale) and while what appears to be a cash act of sale by authentic act is in the record, we have no information as to how that particular instrument was placed there. Even if the document represents the actual sale of the property involved, it does appear that this objection may be removed by amendment in order to allege fraud, forgery or error for the purpose of going beyond the authentic act itself. See La.C.C. Art. 2236; Franklin v. Sewell, 110 La. 292, 34 So. 448 (1903). Matthieu v. Nettles, 383 So.2d 1337 (La.App. 3 Cir.1980), writ denied 390 So.2d 202.

Plaintiffs-appellants should have been allowed to amend their petition. See Delta Acceptance Corporation v. Goldman, 388 So.2d 85 (La.App. 1 Cir.1980). However, as we reverse and deny the exceptions, there is no need to offer appellants an opportunity to amend.

We note that Louisiana does not have an exception of “no cause or right of action”. The two are separate and distinct, each serving a particular and different purpose. Morton v. Washington National Insurance Co., 420 So.2d 1019 (La.App. 5 Cir. 1982). We therefore treat the “exception” filed as two exceptions: (1) an exception of no cause of action; and (2) an exception of no right of action.

THE EXCEPTION OF NO CAUSE OF ACTION

The exception of no cause of action tests the sufficiency of the petition. It raises the question of whether the law grants a remedy to anyone for the particular harm alleged. For purposes of the exception all allegations of the petition are accepted as true, no evidence is admissible to support or defeat the exception, and doubts are resolved in favor of maintaining the sufficiency of the petition. C.C.P. Art. 931; Steadman v. Sladovich, 430 So.2d 816 (La.App. 5 Cir.1983); A. Copeland Enterprises, Inc. v. R. Jones Enterprises Inc., 433 So.2d 1066 (La.App. 5 Cir.1982). Even if evidence is admissible for another exception, that evidence cannot be considered for the purposes of the exception of no cause of action. Gustin v. Shows, 377 So.2d 1325 (La.App. 1 Cir.1979). Contrary factual contentions do not support maintaining the exception but are instead defenses which must be tried on the merits. Marquis v. Cantu, 371 So.2d 1292 (La.App. 3 Cir.1979).

Regarding the exception of no cause of action here, as we have said, the petition alleges that Brian was vendor of the property and that the credit portion was not paid by the vendee to the IRS when due. Assuming, as we must for the purposes of this exception, that the factual allegations of the petition are true, plaintiff Brian has stated a cause of action for dissolution of the sale pursuant to LSA-C.C. Art. 2561. Defendant’s assertion by way of the exception that “the law does not permit a recission of the sale if a portion of the purchase price remains unpaid,” is incorrect in a credit sale. Such a sale is alleged and the petition also alleges that a note for $30,-023.23, representing the balance or credit portion of the sale price, was not paid when due. Although it may very well be the subject of valid complaints in other areas, we cannot see how the fact that the IRS and not Brian, may be the holder of the note has application in the exception of no cause of action. As alleged, the note was a part of the consideration for the sale, and it has not been paid. The situation alleged appears to fall within the ambit of Civil Code Article 2561. See Sliman v. McBee, 311 So.2d 248 (La.1975) and Louis Werner Saw Mill Co. v. White, 205 La. 242, 17 So.2d 264 (1944). Accordingly, particularly insofar as Sajare is concerned, because of the established rule in the event of a dissolution, a complete restoration, a placing of matters in the same state as though the obligation had not existed, must be accomplished, Hollanger v. Hollanger Rice Farms, Inc., 445 So.2d 117 (La.App. 2 Cir. 1984); Chiantella v. Mississippi Mud, Inc, 170 So.2d 897 (La.App. 4 Cir.1965), and cases cited therein, we deny the exception of no cause of action as to both plaintiffs.

THE EXCEPTION OF NO RIGHT OF ACTION

Where the law grants a remedy, the exception of no right of action raises the issue of whether this particular plaintiff falls as a matter of law within the general class in whose favor the remedy may be asserted. Steadman v. Sladovich, supra; A. Copeland Enterprises Inc., v. R. Jones Enterprises, Inc. supra.

Unlike the exception of no cause of action, on the trial of the exception of no right of action evidence is admissible to support or controvert the issue of whether there is a right or interest in the particular plaintiff to institute the suit. However, the exception of no right of action “... cannot be utilized .... to urge that plaintiff has no right simply because there is a valid defense. Such defense goes solely to the merits.” (Citations omitted) Steadman v. Sladovich, supra.

We have held that the plaintiff-vendor, Brian, has stated a cause of action and that its allegations regarding the alleged facts that the sale in suit was a credit sale and that the credit portion has not been paid must be accepted as true. Under these circumstances, Brian as vendor certainly has a right of action. In fact, only the vendor has a right to dissolve the sale. And we do not agree with appellee’s contention that the sale in suit was a cash sale and therefore there can be no unpaid credit portion. Such a contention is a defense to the action; as such it goes solely to the merits and cannot be urged on an exception of no right of action.

Accordingly, we deny the exception of no right of action as to both plaintiffs. Insofar as plaintiff Sajare is concerned, this denial is for the same reason expressed in our consideration of the exception of no cause of action.

For the reasons assigned, the judgment appealed from is reversed, the exception of no cause of action and the exception of no right of action are denied, and the matter is remanded to the trial court for further proceedings in accordance with law and not in conflict with this opinion and decree.

REVERSED; REMANDED.

      . The association is involved to the extent of a post sale mortgage held by it.

      . According to an alleged cash act of sale of the property, which is in the record, the sale had been held pursuant to an order issued by a federal bankruptcy court; appellant Brian had been placed in involuntary bankruptcy.

      . In brief to this court, appellants states that payment of Sajare's tax debt was part of the total consideration for Brian’s sale.

      . "If the buyer does not pay the price the seller may sue for the dissolution of the sale. This right of dissolution shall be an accessory of the credit representing the price, and if it be held by more than one person all must join in the demand for dissolution; but if any refuse, the others by paying the amount due the parties who refuse, shall become subrogated to their rights.”

      .With its appellate brief, defendant Esplanade also submits additional documentary evidence for maintaining the exception, which we cannot consider because that evidence was presented for the first time in this court.

      . We pretermit mention or a discussion of other arguments in briefs as we are concerned on this appeal only with the exceptions on appeal.

      . Footnote 4, supra.

      . For example, it would seem that the IRS should have been joined in these proceedings which pivot upon its note for $30,023.03, Sa-jare’s tax debt. Appellee argues the IRS was an indispensable party.

      . In both cases, a portion of the purchase price was paid in cash and the balance was represented by promissory notes. However, in both of those cases the promissory notes were held by the vendor.


text:
    Mr. and Mrs. Enrique OLIVA v. CAFE MASPERO, INC., et al.
    No. CA-1960.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 14, 1985.
    David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for plaintiff s-appellees.
    Glenn B. Adams, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant-appellant U.S. Fidelity & Guaranty Co.
    Before WILLIAMS and BYRNES, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Defendants appeal a jury verdict awarding $95,000.00 to plaintiff for injuries she sustained when the chair in which she was seated at the Cafe Maspero restaurant suddenly collapsed, causing her to fall backwards onto the floor. The $95,000.00 is an in globo award; it includes all medical and other expenses. Liability has not been argued or contested. The sole issue on appeal is whether the award is excessive.

Our examination of the record satisfies us that plaintiff has proved with sufficient certainty that she sustained the following expenses:

Medical expenses $1,152.00
Loss of wages 723.00

for a total of $1,875.00. Therefore, we consider the jury’s award for general damages, including pain and suffering, to have been $93,125.00

In determining whether the jury abused its “much discretion” contained in La.C.C. Art. 1934(3), and given to the trier of fact in assessing damages, we follow the guidelines set in Reck v. Stevens, 373 So.2d 498 (La.1979). Therefore, our initial inquiry is directed at determining whether the $93,-125.00 general damage award is appropriate for these particular injuries considering their effect on this particular plaintiff.

Plaintiff was injured on November 22, 1981 at the Cafe Maspero restaurant. According to the plaintiff’s undisputed testimony, she had been seated at a table in the restaurant for a matter of minutes when suddenly, and without warning, her chair collapsed, causing her to fall backwards onto the floor, striking her head, back and shoulders on a nearby table. Plaintiff experienced immediate pain in her head, neck, and back, and although she did not lose consciousness, had to be assisted to her feet. She was driven by her husband and son to the Hotel Dieu Hospital Emergency Room where she was examined and treated by emergency room physicians. X-rays taken at the hospital revealed no fractures. She was given medication for her pain and released shortly thereafter.

Plaintiff testified that she returned home and attempted to treat herself with bed rest and Tylenol. After approximately three weeks, when her pain was no better, she consulted a local orthopedist, Dr. John Watermeier.

Dr. Watermeier testified he first saw plaintiff on December 14, 1981. At that time she complained of increasing pain in her neck, severe headaches, and numbness in both hands. The doctor conducted a physical examination and took x-rays of plaintiffs neck and back. Following this initial examination, he noted she had a slight condition of arthritis in her neck and a generalized mild deterioration of the bone (known as osteoporosis). Dr. Watermeier was of the opinion that the plaintiff’s accident had aggravated this pre-existing condition. He prescribed an analgesic for her pain and gave plaintiff some exercises to do at home.

Dr. Watermeier next saw the plaintiff on January 11, 1982, some four weeks later. At that time, she continued to complain of pain in her neck radiating into her shoulder and of numbness in both hands. Because of the persistence of her symptoms, Dr. Watermeier felt that a diagnostic test was required. Accordingly, plaintiff was referred to Dr. Gerald Burns for the purpose of having an electromyogram (EMG) run. An EMG is a test designed to determine if there is any interference with the nerve conduction in the arms, forearms, and the hands. Dr. Burns, who did not testify at trial, interpreted the EMG as showing evidence of carpal tunnel syndrome.

On January 25, 1982, the occasion of plaintiff's third visit to Dr. Watermeier, he informed her that the EMG showed signs of carpal tunnel syndrome, more evident on the right than on the left side. By definition, carpal tunnel syndrome is a group of symptoms which result from pressure on the median nerve, which runs under the band that holds the bones of the wrist together. Dr. Watermeier initially recommended that plaintiff treat this condition conservatively by immobilizing both wrists with a splint and laying off work. He prescribed pain medication for the wrists, and for plaintiff’s ongoing arthritic condition.

Dr. Watermeier saw the plaintiff on February 3, 1982, and again on February 8, 1982. On both occasions, plaintiff continued to complain of numbness in her hands. Dr. Watermeier, who wanted to continue conservative treatment, again prescribed pain medication. He did, however, advise plaintiff that if her symptoms did not improve, surgery might be indicated.

Plaintiff’s last visit to Dr. Watermeier was on May 28, 1982. At that time, plaintiff complained of numbness and weakness in her right hand. She did not complain of pain associated with her arthritis, which Dr. Watermeier took as an indication of remission of that condition.

On the occasion of this final visit, Dr. Watermeier advised plaintiff that she might require surgery on her right wrist, but felt that she could continue to be treated with medication, daily soaking, and a splint as needed. He did not see plaintiff again.

At the request of counsel for Cafe Maspero, plaintiff consulted Dr. Richard Levy, a local neurosurgeon. Dr. Levy examined plaintiff on June 14, 1983, just one week prior to trial. Dr. Levy testified that at the time of his examination plaintiff complained of pain in the neck going into the head, both shoulders, and the arms, and of pain in the low back going into the legs. She also complained of numbness in all fingers of both hands. Dr. Levy conducted a full neurological examination of plaintiff and then reviewed the medical reports, office notes, and x-rays taken by Dr. Water-meier.

Dr. Levy’s examination of plaintiffs neck and back revealed normal curves to the back of the neck and to the low back region. Dr. Levy was unable to detect any objective signs of injury in either region, although he did note that plaintiff complained of pain in the mid-neck and mid-low. back and that plaintiff was unwilling to move her neck to any significant degree in any direction.

Dr. Levy examined the x-rays taken by Dr. Watermeier on December 14, 1981, and testified that those x-rays were surprisingly free of arthritis. He noted minimal arthritic change in plaintiffs neck and evidence of more arthritis in the low back than in the neck but commented that there was still less arthritis than would normally be expected in the average 59 year old woman.

Dr. Levy then tested both of plaintiffs arms and legs for signs of any neurological disease or injury. His examination led him to conclude that the numbness in plaintiffs hands and legs did not follow any known neurological and anatomical distribution, and therefore could not be used as a basis for finding any neurological ailment. Dr. Levy testified: “I found no disability. That is to say I found no spinal cord, nerve root or nerve disease or injury in the arms and legs and I didn’t think any neurosurgery was indicated.” Dr. Levy went on to testify more specifically, that he found no evidence of carpal tunnel syndrome. He explained: “... a carpal tunnel syndrome produces numbness in the palm surface of the thumb, middle finger and one-half of the ring finger as well as numbness on the back surface of the four fingers down to the first joint. This is the way we are built and this is what the median nerve supplies. The numbness I found in this lady was in these (indicating) four fingers, in its [sic] entirety, I didn’t find it in these three and a half, which makes me feel the numbness she had was not in that nerve distribution. ..” Dr. Levy concluded his testimony by stating that, from a neurological standpoint, there was no reason that plaintiff could not continue her regular, full-time employment.

At the time of trial, plaintiff was sixty years old. She testified she is currently employed as a seamstress for the Royal Orleans Hotel, where she has worked for the past nine years. Her primary duties involve making uniforms for the hotel staff and repairing torn bedspreads, drapes, and linen. This work entails sewing by hand as well as the use of a machine.

Plaintiff testified that she began experiencing severe pain in her head, neck and back immediately following the accident. This pain has continued with little abatement. Plaintiff’s supervisor testified that plaintiff was unable to work at all the week following her accident. She returned to work the next week, but was unable to sew. The third week following the accident she worked only one day. The next week she missed one day of work and for two weeks subsequent to that she worked erratically. By the seventh week post-accident, plaintiff had returned to her regular full-time duties. However, plaintiff testified that the numbness in her hands has continued to plague her and that as a result she is not as proficient with her sewing as she used to be. Plaintiff also testified that since the accident her normal activities have been greatly restricted. She complained of chronic pain, an inability to do household chores unassisted, and an inability to exercise or take the walks to which she was accustomed.

The record establishes that the plaintiff has experienced considerable pain and changes in her lifestyle as a result of defendant’s negligence. However, she has continued to work full-time and there is no reason to suggest that she will not be able to do so indefinitely. Although there is ample evidence to support the finding that the accident caused plaintiff to suffer an inflammation of a pre-existing arthritic condition, the evidence with respect to plaintiff’s carpal tunnel syndrome is not as clear. While Dr. Watermeier indicated plaintiff suffers from carpal tunnel syndrome which may require surgery on her right wrist, Dr. Levy was of the opinion that plaintiff does not have this condition at all. More importantly, there is no evidence in the record which directly links this condition to the accident of November 22, 1981. On the basis of the present record, we conclude that whether the plaintiff does in fact have carpal tunnel syndrome is doubtful, and that if she actually does have that syndrome, its causal connection to the accident has not been proved to the certainty required.

We are convinced that the jury based its award in large measure on the conclusion that the plaintiff suffers from carpal tunnel syndrome as a result of the accident and that she will eventually have to undergo surgery for this condition. As articulated above, the record simply does not support this conclusion. Following Reck v. Stevens, supra, we conclude that the $93,-125.00 general damage award constitutes an abuse of discretion.

As directed by Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), we must now proceed to lower the award for general damages to the highest point within the jury’s discretion. After careful analysis of the injuries sustained by this particular plaintiff, we find that $20,000.00 would constitute a highest proper award under all the circumstances.

Accordingly, the judgment appealed is amended so as to reduce the award from $95,000.00 to $21,875.00 ($20,000.00 general damages plus proven expenses of $1,875.00). As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . After plaintiff filed her brief in this court, defendant filed a reply brief. Plaintiff has filed a motion to strike that reply brief, arguing that it contains facts outside the trial record and the original brief on appeal. This contention is without merit. Accordingly, plaintiff’s motion is denied.


text:
    STATE of Louisiana v. Dexter BURAS.
    No. KA-1840.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Anthony D. Ragusa, Jr., Port Sulpher, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., New Orleans, Leander H. Perez, Jr., Dist. Atty., 25th Judicial Dist., Parish of Plaquemines, Point a la Hache, Gilbert V. Andry, III, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before WILLIAMS and BYRNES, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

Dexter Buras was indicted for aggravated kidnapping, a violation of La.R.S. 14:44. Following a trial by jury, he was found guilty as- charged and sentenced to serve the mandatory penalty of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, Buras relies upon seven assignments of error. Finding merit in the sixth of the assigned errors, we annuli and set aside the conviction and sentence.

In assignment of error number six defendant contends the trial court erred when it allowed a transcript of certain recorded telephone calls to be brought into the jury room. After the case had been submitted to the jury, and after it had retired to deliberate, the jury sent word to the trial judge that it desired to have a transcript of the recorded telephone conversations sent to the jury room. Over the defendant’s objections, the trial court permitted the transcript to be sent to the jury. The document was a typed transcription of F.B.I. recorded telephone calls to the family of the kidnapping victim from the alleged kidnappers demanding $400,000.00 for the return of the victim and threatening severe harm to the victim in the event of noncompliance with the ransom demand.

La.C.Cr.P. Art. 793 mandates what evidence can and cannot go into the jury deliberation room. That article provides:

“A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.”

The clear rule derived from this article is that the jury is not to take written evidence into the jury room, or receive it there, except for the sole purpose of conducting a physical examination of the document itself to determine an issue which does not require the examination of the verbal contents of the document. State v. Perkins, 423 So.2d 1103 (La.1982); State v. Passman, 345 So.2d 874 (La.1977); State v. McCully, 310 So.2d 833 (La.1975); State v. Freetime, 303 So.2d 487 (La.1974). For example, a jury can only examine written evidence to ascertain or compare the signature, or to see or feel it with regard to its actual existence. State v. Perkins, supra; State v. Freetime, supra. Our courts have consistently have held that reversible error results when written evidence is given to the jury for the purpose of permitting it access to the verbal contents of the document. State v. Perkins, supra; State v. Passman, supra; State v. McCully, supra; State v. Freetime, supra; State v. Arnaudville, 170 La. 151, 127 So. 395 (1930); State v. Harrison, 149 La. 83, 88 So. 696 (1921).

As stated by the Louisiana Supreme Court in State v. Freetime, supra at pgs. 488-489:

The policy choice thus represented is to require jurors to rely on their own memory as to verbal testimony, without notes and without reference to written evidence, such as to depositions or transcribed testimony. The 'general reason for the prohibition is a fear that the jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them.

In the present case, it is clear the jury wished to examine the transcript of the recorded telephone calls for its verbal content and not for its physical characteristics. In view of the clear and express prohibition in La.C.Cr.P. Art. 793 and our jurisprudence thereunder, we must hold that permitting the transcript to be sent in to the jury during its deliberations constituted reversible error.

We cannot, as the state urges, characterize the trial court’s violation of this specific statutory provision as harmless. It does violate substantial rights of the accused (La.C.Cr.P. Art. 921). The jury’s re-examination of only the transcript of the telephone calls was highly prejudicial to the accused. The transcript, although not directly linking the defendant to the crime, does provide direct evidence of the essential elements of the crime with which the defendant is charged. The same danger present in Perkins, Passman, McCully and Freetime is present in this case. The danger is that undue weight may be given to this particular piece of evidence.

As we have said, following the legislative mandate in La.C.Cr.P. Art. 793 and the jurisprudence thereunder, this court is required to find that sending the transcript of the telephone calls into the jury room constituted reversible error. To hold the opposite would violate the rule established by that article and in the above cited Supreme Court cases.

For the reasons assigned, the defendant’s conviction and sentence are annulled and set aside, and the case is remanded to the district court for a new trial.

CONVICTION AND SENTENCE ANNULLED AND SET ASIDE; CASE REMANDED.


text:
    In re TUTORSHIP OF the Property of Matthew Ward WERLING.
    No. CA-2253.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      William F. Bologna, Avery T. Waterman, Jr., McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., New Orleans, for appellee.
    Donald L. Foret, Lee R. Leonard, New Orleans, for appellant.
    Before WILLIAMS and BYRNES, JJ„ and L. JULIAN SAMUEL, Judge Pro Tem.
   L. JULIAN SAMUEL, Judge Pro Tem.

This is an appeal from a judgment maintaining an exception of no right of action, and, on that ground, dismissing petitioner’s suit in a tutorship proceeding.

The facts and the procedural background are unusual. Carl M. Werling, Jr., was shot and killed on January 9, 1983, by his wife, Cherie Ward Werling. Mrs. Werling was never prosecuted for the shooting. Carl M. Werling, Jr., had been heavily insured. It is alleged that benefits of $2,000,000.00 were to be distributed to the primary beneficiary of several life insurance policies, Cherie W. Werling, the person who killed the insured. The secondary beneficiary was Carl and Cherie M. Wer-ling’s minor son, Matthew Ward Werling, whose property is the focus of these proceedings.

On January 10, 1984, plaintiff-appellant Frank Sloan petitioned the trial court to be appointed separate tutor of the property of Matthew Ward Werling. Alleging that he was a friend, professional associate and personal attorney to the late Carl M. Wer-ling Jr., Sloan contended that under La.C. C.P. Art. 4069, a separate tutor of the property could and should be appointed in this “exceptional” case for good cause shown. Noting .the possibility that Cherie W. Werling’s killing of her husband might disqualify her as first named beneficiary on the insurance policies, Sloan argued that the minor’s interests as second named beneficiary were in conflict with those of his mother and therefore required the protection of a separate tutor. He asked to be named the separate tutor since he had been respected and trusted by Matthew’s father whom he had personally represented.

La.C.C.P. Art. 4069 provides:
In exceptional cases and for. good cause shown, the court may appoint a bank or another person as administrator or tutor of the property of the minor. This appointment may be made upon the court’s own motion or upon the motion of the tutor or other person entitled to the tutorship if no tutor has been previously appointed, or upon motion of any interested person after a contradictory hearing with the tutor, administrator or person entitled to the tutorship or the administration.
If a person is appointed as tutor or administrator of the minor’s property, that person shall furnish security as provided in Article 4131.

On January 29, 1984, Cherie W. Werling filed exceptions of improper venue, no right of action and no cause of action to Sloan’s petition. Apparently before a hearing was held on the exceptions, Guaranty Income Life Insurance Company filed.in Orleans Parish Civil District Court a petition to institute a concursus proceeding and deposited $500,000.00 of life insurance benefits (to be paid to Carl Werling’s beneficiary) with the court. The insurance company expressed concern over the fact that the secondary beneficiary was a minor. The company requested that an attorney be appointed to determine and assert the minor’s rights.

On February 9, 1984, Mrs. Werling petitioned the 19th Judicial District Court in East Baton Rouge Parish to confirm her as natural tutrix of Matthew, to appoint Robert Ward (Matthew’s maternal grandfather) as undertutor ad hoc and to appoint Jean (also spelled John in the petition) Barnett (a friend of the family and businessman) as separate tutor of the property of the minor; the mother noted the potentiality of the conflict of interests between herself and her son as first and second insurance beneficiaries as the reason for requesting a separate tutor for Matthew’s property.

On February 14, 1984, Frank Sloan filed a supplemental petition in Orleans Parish Civil District Court asking in the alternative that another party such as Matthew’s paternal grandmother, or a bank or other qualified person non-aligned with the interests of Cherie W. Werling, be appointed separate tutor of the minor’s property in order to protect Matthew’s interests. On February 27, 1984, following hearings on the exceptions, the trial court rendered judgment denying the exception of improper venue, maintaining the exception of no right of action, and dismissing the case.

Sloan appealed from this judgment, alleging as error that the district court dismissed his petition for appointment as separate tutor of Matthew Werling’s property and, alternatively, that the district court failed to appoint Matthew’s paternal grandmother or a bank or other party (not aligned with Cherie W. Werling’s interests) as such separate tutor.

The brief of appellee, Cherie W. Wer-ling, asks that the trial court’s findings to the effect that Frank Sloan was “properly not to be appointed separate tutor” of the minor’s property and that Sloan “lacks standing to raise the issue of the appointment of a separate tutor” be affirmed. Alternatively, appellee asks that this court remand the matter of the exception of no right of action for further proceedings along with that of no cause of action.

The pivotal issue of whether Frank Sloan did indeed have standing is complicated by the fact that the no right of action exception itself, as well as the hearing and the trial court’s decision on the matter, did not narrow the focus to only the standing question. The exception declared that Frank Sloan had no right of action since he represented creditors and other claimants, including himself, against the succession of Carl M. Werling and had been in direct contact with insurance companies contesting coverage under life insurance policies naming Matthew Werling as secondary beneficiary. Mrs. Werling contended that Sloan’s status as her husband’s confidant did not entitle him to be appointed separate tutor of Matthew’s property. The substantive allegations put before the court with the label of exception of no right of action clearly exceeded the scope of standing. In fact, the contentions focus more clearly upon the merits of the matter of Sloan’s qualifications to be tutor, not upon whether Frank Sloan could petition the court that a separate tutor be appointed. Similarly the focus at the hearing on the exceptions did not center upon the actual standing issue. The trial court stated that it would hold the venue issue and decide that later that day. He then bifurcated the two issues of no cause of action and no right of action and heard the latter.

The evidence heard on the no right of action exception consisted totally of Sloan’s testimony. It was adduced that Sloan had filed a claim for Thomas Wilson against Carl Werling’s succession regarding a refund of attorney’s fees, directed demand letters to the estate on behalf of Mr. and Mrs. Dupuis regarding settlement funds and even filed a personal claim. Sloan admitted that he had reviewed Carl Wer-ling’s client files after his death to- determine whether there were prescription problems. He further stated that he had taken about six cases from those files in which he later represented the plaintiffs. Sloan agreed that he had a limited fiduciary responsibility to Carl Werling’s estate after reviewing the decedent’s client files, but felt that there was no ethical conflict in representing Werling’s clients in claims against Werling’s succession while he would be named Matthew Werling’s tutor.

When Sloan attempted to establish his qualifications as a bona fide tutor, the trial court stopped him and asked how that testimony related to the no right of action exception. In reality, little of the previously given testimony related to Sloan’s standing. The district court judge went on to correctly state that he was not interested in whether Sloan would make a bona fide tutor; the court was only interested in whether he had a right of action. The court then, however, went on to say: “I am interested in whether or not he has a conflict with the succession.” The court did allow testimony as to a conflict between Frank Sloan as tutor for Matthew Werling and Carl Werling’s estate.

At the conclusion of the hearings on the exceptions, the trial judge stated:

“Insofar as the question of no right of action is concerned, I believe that the plaintiff in this case is so unbelievably intertwined in the conflicts of interest insofar as this succession is concerned, that he has no right to pursue this matter whatsoever. I not only believe that there is a conflict of interest in the succession, I believe that the Mover in the case is the conflict in the succession. He himself is the conflict. And for that reason I am going to hold that he has no right of action whatsoever to bring these proceedings. And I am going to dismiss the proceeding.”

Thus, although the trial court clearly ruled that Sloan had no right of action, the court’s reasons indicate that the actual basis of the ruling was on the merits of the petition or possibly on the issue of no cause of action.

At the trial court level, there was no serious argument made as to whether Sloan had a right to file the petition for the appointment of a separate tutor. But in our view, the crux of this matter, and the only issues before us on this appeal, are whether Sloan had a cause of action and a right of action under La.C.C.P. Art. 4069.

In considering the exception of no cause of action, it suffices to say that, accepting Sloan’s allegations as true (as the court must), see Klein v. Recorder of Mortgages for Orleans Parish, 430 So.2d 1047 (La.App. 4th Cir.1983), the petition does state a cause of action.

The exception of no right of action is a more difficult matter. Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which is asserted. La.C. C.P. Art. 681. An exception of no right of action under La.C.C.P. Art. 927(5) raises the issue of whether the person has an interest in the subject matter of the proceedings. Bank of New Orleans and Trust Company v. Lambert, 409 So.2d 294 (La.App. 1st Cir.1981), writ denied 413 So.2d 494. It challenges the plaintiffs interest in the subject matter or his legal capacity to proceed with the suit. Marquis v. Cantu, 371 So.2d 1292 (La.App. 3rd Cir. 1979). The exception questions whether a remedy afforded by law can be invoked by the particular plaintiff; it relates specifically to the individual person. Henry v. State through Department of Health and Human Resources, 435 So.2d 565 (La.App. 3rd Cir.1983), writ denied 441 So.2d 750 (La.1983). Whether a remedy afforded by law can be invoked by a particular plaintiff is at issue. Klein v. Recorder of Mortgages for Orleans Parish, supra; see also A. Copeland Enterprises, Inc. v. R. Jones Enterprises, Inc., 433 So.2d 1066 (La.App. 5th Cir.1982), writ denied 435 So.2d 426. The exception of no right of action is a threshold device to terminate a suit brought by one who has no interest in it, Stevens v. Board of Trustees of the Police Pension Fund of the City of Shreveport, 309 So.2d 144 (La.1975); it “cannot be utilized to determine whether defendant can stand in judgment, or to urge that plaintiff has no right simply because there is a valid defense ... Such a defense goes solely to the merits.” (citations omitted) Steadman v. Sladovich, 430 So.2d 816, 818 (La.App. 5th Cir.1983). See also Morton v. Washington National Insurance Company, 420 So.2d 1019 (La.App. 5th Cir.1982).

Appellant contends that the trial court confused the issue of standing with the issue of his appointment as separate tutor. Although he argues that the allegations on the face of the petition were sufficient to demonstrate that he is an interested party, evidence supporting or controverting an exception of no right of action is admissible. La.C.C.P. Art. 931, Edwards v. Superior Coach Sales, Inc., 417 So.2d 1289 (La.App. 1st Cir.1982), writ denied 422 So.2d 423 (La.1983).

Thus, at the district court hearing properly held on the no right of action exception, testimony was given by Frank Sloan. However, the questioning by attorneys for both sides during the hearing clearly shows that the evidence presented focused upon Sloan’s qualifications as separate tutor in light of his conflicts with Carl Werling’s succession. The testimony delved into Sloan’s behavior in reviewing Werling's files and in representing Wer-ling’s past clients even in suits against the Werling succession. The issue of Sloan’s standing as an, “interested party” with a right to bring the action was not actually reached. The trial court in its reasoning which led to the conclusion that Sloan had no right of action appears to have been considering only whether Sloan should have been the separate tutor. Contrary allegations do not support the maintaining of a no right of action exception; they are instead defenses which must be tried on the merits. Marquis v. Cantu, supra. The trial judge felt strongly that Sloan should not be named tutor because of his conflicts with the estate. That is a conclusion ultimately within the sound discretion of the trial judge. However, that conclusion does not answer and is not concerned with whether Sloan had a right of action under La.C.C.P. Art. 4069.

Mrs. Werling argues that even if the trial court had been confused as to the real issue of the hearing on the motion, this court should affirm the judgment since the record clearly indicates that Sloan lacked standing. We disagree.

Standing under La.C.C.P. Art. 4069 involves construction of the “interested person” language. There is scant jurisprudence construing Article 4069; two appellate opinions involve matters of curatorship in interdiction proceedings, which according to La.C.C.P. Art. 4550 are governed by Article 4069. In the case of In Re: Interdiction of Barnes, 182 So.2d 849 (La.App. 1st Cir.1965), an aunt petitioned the court seeking the interdiction of her nephew Aaron J. Barnes, III, and asking that she be named curatrix. Barnes’ stepmother answered the petition alleging that no interdiction was necessary or, in the alternative, if the interdiction was granted, that a bank be appointed curator of the interdict’s property. The trial court granted the interdiction, appointed the aunt curatrix of the interdict’s person and a bank curator of his property. Based on the provisions of La.C. C.P. Art. 4069 (as that article was worded before the 1974 amendment), the aunt appealed. The First Circuit concluded the aunt possessed no unusual qualifications as a business manager, that the interdict himself had requested that a bank take care of his money and that there was a personality conflict between the aunt and the stepmother who had a usufruct over the interdict’s property. Since the two women would have been compelled to stay in constant, contact if the aunt had been named curator of the interdict’s property and since the interdict had expressed his own wishes in the matter, the judgment was affirmed.

More enlightening on the standing issue is In Re Interdiction of Magee, 366 So.2d 204 (La.App. 2d Cir.1978). There the interdict’s spouse as well as her grandson sought the appointment as curator of her property. The district court on its own motion appointed a bank due to the circumstances of the case. The spouse appealed and again.questioned the grandson’s standing as a party to the action since there was no actual blood relationship. The interdict had reared the grandson’s father from birth and held him out to the world as her son. The grandson, if not related by blood, had even attended to many of the interdict’s needs in the recent past. Stating that “[bjlood relationship is not a requirement ..., 366 So.2d at 205,” the Second Circuit concluded that the grandson’s status as an interested person had been clearly established.

It would seem clear from the wording of the statute, as well as the case law, that the category of “interested persons” was not to be restricted to blood relatives. In brief, appellant Sloan argues that the fact that the court on its own motion may appoint a separate tutor provides no rationale for applying stringent restrictions on the right of a person to petition the court. This reasoning may not be flawless, but it touches upon the principle that the articles of the Code of Civil Procedure are to be construed liberally and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. La.C.C.P. Art. 5051. A liberal construction would appear most appropriate when the protection of the rights of a minor is involved in a tutorship proceeding.

A review of Louisiana statutes which similarly utilize the “interested person” wording discloses varying interpretations as to the standing requirement inherent in that statutory language. In some instances, the phrase is further explained in an official Revision Comment. The statement in La.C.C.P. Art. 3137 that “[a]ny interested person may traverse the descriptive list ...” of a succession is explained to mean “any person whose rights might be prejudiced ...” could traverse. The Louisiana Supreme Court has held that a surviving spouse was an interested person within the meaning of that statute. Succession of Smith, 247 La. 921, 175 So.2d 269 (1968). When faced with three grandchildren traversing the list and only one appealing, the Third Circuit stated that it was unnecessary for all three to file the motion since any interested person may do so. Succession of Amos, 422 So.2d 605 (La.App. 3rd Cir.1982). In Succession of Willis v. Martin, 228 So.2d 732 (La.App. 3rd Cir.1969), writ refused 255 La. 244, 230 So.2d 93, the Third Circuit rejected appellant’s contention that only heirs and creditors could be considered “interested persons” under Article 3137. Utilizing the principle of liberal construction of procedural rules, that court held the vendees of an heir could also be considered interested parties.

La.C.C.P. Art. 2972 provides that the opposition of a party to a succession must allege the interest of the opponent in filing the opposition. Official Revision Comment (b) to that provision states that a person must have a “justiciable interest” in filing, the “definition of this interest hav[ing] been stated only implicitly in the term ‘interested person.’ ”

When the “interested person” must have an actual or justiciable interest or must be adversely affected, the clear statutory language often so declares. See, e.g. La.C. C.P. Art. 1872; R.S. 30:12. Other statutes merely use the key wording and one must search for the intendment of the codal article. See, e.g., La.C.C.P. Art. 561 and, Art. 3607. See also La.C.C.P. Art. 3111, Art. 3135, Art. 3305, Art. 3091, Art. 4070, and Art. 4549.

In a recent opinion dealing with the construction of La.R.S. 9:403 B, which provides for the initiation of abandonment proceedings in juvenile court by an affidavit from an agency or an officer of the court, the First Circuit concluded: “The legislature, had it intended to allow private individuals to initiate abandonment proceedings, could have done so by inserting ‘or other interested person or persons’ into the statute.” Wheat v. Street, 428 So.2d 930, 931 (La.App. 1st Cir.1983).

Certainly, it would appear that the in-tendment of La.C.C.P. Art. 4069 must be viewed in terms of the protection of the minor’s property. The provision permits the appointment for good cause regardless of objection by the custodian of the minor’s person even if the custodian is a natural tutrix. Its language liberally construed according to common usage, La.C.C.P. Art. 5053 would seem to allow any individual who indeed had any interest in the minor or in the subject matter of the separate tutorship of the minor’s property to have standing. After all, the only thing that the petitioner, the interested party in Article 4069, does is call to the court’s attention the possible need for the appointment of a special tutor of the property of the minor, an appointment which the court may consider on its own motion.

The above is especially true here. As a personal friend, professional associate and personal attorney of the minor's father, Sloan clearly should not be disqualified as an “interested person.” Indeed, there is nothing in the record of the trial court hearing to indicate that Mrs. Werling showed Sloan did not have standing as an interested person. The tutorship proceeding, unlike other court proceedings, does not present an action in which a plaintiff has an interest in enforcing judicially the right asserted, see e.g., Jefferson Bank and Trust Company v. National Gold Mining Company, Inc., 420 So.2d 997 (La. App. 5th Cir.1982), or in which a plaintiff belongs to the particular class of persons to which the law grants a remedy. Patterson v. Patterson, 436 So.2d 603 (La.App. 4th Cir.1983). Sloan’s right to petition the court so that a separate tutor would be appointed to protect the interests of the child of a friend and colleague was not refuted at the hearing on this exception. And certainly, this is one of the “exceptional cases” referred to in Article 4069. The exception of no right of action should have been denied.

For the reasons assigned, the judgment appealed from is reversed, the exceptions of no cause of action and no right of action are denied, the case is remanded to the trial court, and the trial judge is directed to determine, after a hearing, whether a bank or another person should be appointed as tutor of the property of the minor in this case and, if he decides that such an appointment should be made, then to name and appoint such tutor.

REVERSED; REMANDED.

      . The couple, in the process of obtaining a divorce, were living apart. The issuance of a restraining order prohibiting either party from interfering with the other showed their strained relationship. Mrs. Werling’s version of the shooting was that she shot her husband in self-defense as he attempted to attack her with a kitchen knife.

      . There is some question as to the exact amount of insurance proceeds involved. $2,000,000.00 is a plaintiff-appellant allegation. In any event, it is undisputed that the insurance proceeds were very substantial.

      . According to information related during oral argument before this court, a curator was appointed to represent Matthew in that proceeding. As a result of that proceeding, $150,000.00 was placed in a trust for Matthew with a bank named as trustee.

      . There has been no appeal from the denial of the exception of improper venue, nor has there been an answer to this appeal regarding that denial.

      . Sloan originally appealed suspensively. However, when the appeal bond of $750,000.00 was not filed timely, Mrs. Cherie Werling moved to dismiss the suspensive appeal. On June 29, 1984, this court granted the motion and maintained the appeal as devolutive.

      . Additionally, Mrs. Werling filed a motion to strike Sloan’s reply brief alleging that it attempts to divert this court from the legal issues with specious arguments. As we are cognizant of the issues herein, the motion is denied.

      . Of course, Sloan’s supplemental petition urging alternatively that Matthew’s paternal grandmother or a bank or other person be appointed was not filed until after the exceptions had been filed.

      . The trial court stated: "And I will either hear the No Right of Action now or I will decide the venue this afternoon. Because I think that I am going to decide that I have it.”

      .The trial court never actually ruled upon Cherie W. Werling's exception of no cause of action. In oral argument to this court her attorney contended that the district court’s statement —"And I am going to dismiss the proceeding," somehow included the exception of no cause of action.

      . Courts are ex officio empowered to notice the failure to disclose a cause of action. La.C. C.P. Art. 927; Randall v. Jena Wire and Cable Co., 415 So.2d 564 (La.App. 3rd Cir.1982).

      . It raises the question of whether the plaintiff has any interest in enforcing judicially the right asserted. Lambert v. Donald G. Lambert Construction Company, 370 So.2d 1254 (La.1979), whether the plaintiff belongs to that particular class to which law grants the remedy. Morton v. Washington National Insurance Company, 420 So.2d 1019 (La.App. 5th Cir.1982). See McMahon, Parties Litigant in Louisiana: The Exception of Want of Interest, 11 TUL.L.REV. 527 (1937).

      .The issue of no right of action, unlike that of no cause of action, can be decided after a hearing in which evidence is presented. Klein v. Recorder of Mortgages for Orleans Parish, supra.

      . The conflict between the aunt and the stepmother did not enter into the question óf standing; it was rightfully part of the determination on the merits of the matter — as to whether the aunt would be appointed curator.

      . The standing of the aunt named curator of the person was never really an issue. The "interested person” wording was not construed; rather the language, "[i]n exceptional cases and for good cause shown,” was the center of the focus.

      . Legal heirs have been held to possess such an interest. Succession of Gardiner, 366 So.2d 1065 (La.App. 3rd Cir.1979), writ denied 369 So.2d 1154. A real interest is requisite. Succession of Kilpatrick, 356 So.2d 1083 (La.App. 2d Cir.1978), writ denied 359 So.2d 198 (La.1978).

      . See Bolden v. Brazile, 172 So.2d 304 (La.App. 4th Cir.1965), which states that Texaco (a corporation being sued for the value of oil removed from land under leases from co-defendants claiming to be owners) was considered an interested person under La.C.C.P. Art. 561 which states that "any party or other interested person” could file a motion to dismiss a case as a result of abandonment.

      . This article provides that "[a]n interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction ...." The Louisiana Supreme Court has also declared that "[a]n interested party has a right to appeal from an injunction judgment whether he was a party or not to the injunction suit.” Cloud v. Bushnell, 168 So.2d 275 (La.App. 3rd Cir.1964), writ refused 247 La. 249, 170 So.2d 509 (1965).

      . La.R.S. 9:403 B provides in pertinent part: "An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place or residence of the parent of the child if known to the deponent ....”

      . In an article in the Louisiana Law Review, 1960 Amendment to the Civil Code Enacted in Connection with the New Code of Civil Procedure, co-authors Leon Sarpy and Adrian Du-plantier declared:
      "Article 4069 of the new Code is perhaps the most important of several changes designed to protect the minor’s property, for which protection Louisiana has always been noted. Formerly, a bank could be appointed as separate tutor of the minor’s property only with consent of the tutor of the person. The new provision permits the appointment for good cause, regardless of objection by the custodian of the minor's person, and even where there is a natural tutor.” 21 La.L.Rev. 390 (1961).


author: DUFRESNE, Judge.

text:
    W.C. NELSON, Individually and as President of Highland Acres Association, Melvin G. Dupuis, Jr., Individually and as a Member of Highland Acres Association v. Nancy Amato, Wife of/and Gordon K. KONRAD, and Sancy Stringer, Wife of/and Timothy N. Deano.
    No. 84-CA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 21, 1984.
    Rehearing Denied Dec. 17, 1984.

      Melvin G. Dupuis, Jr., Metairie, for plaintiff-appellant.
    George C. Stringer, Jr., Harahan, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Two property owners in a residential subdivision as individuals and as members of a homeowners association, bring this appeal from a judgment denying injunctive relief sought by them to prevent construction of several houses which they alleged would be in violation of their subdivision’s building restrictions. Because we find that the restriction at issue here does not apply to the properties in question, we affirm.

In 1951, Jeff, Inc. acquired a narrow tract of land between Orchard Road and Upstream Street in Jefferson Parish for the purpose of developing a residential subdivision. As the attached plat shows, (Appendix No. 1) a street designated as Walter Road was placed down the long axis of the property, thus dividing it in half lengthwise. Several cross streets perpendicular to Walter Road were also dedicated.

The original plan did not, however, subdivide the tract into individual lots, but rather into smaller sections indicated on the plat by the circled, bold face letters A through F. As prospective buyers came forward, they were permitted to designate any width of lot which suited them, so long as that width was sixty feet or more. Jeff, Inc. also incorporated into the title of each lot sold a uniform set of building restrictions. The pertinent paragraphs of those restrictions are as follows:

(3) Nor [sic] more than one (1) residence shall be erected on any residence site. Each residence site shall consist of a frontage of not less than sixty (60) feet.
(6) All residence lots face Walter Road and no utilities will be placed on any other street by vendor. Houses must face Walter Road, however, garages may face the back streets, if so desired.

It appears from the record that by 1955, all lots had been sold, and a plat showing this final subdivision into individual lots was approved by the parish in that year.

The parcels that are the subject of this suit are designated on the plat as Lots A, B, C and D, in section F. The adjoining Lot X, originally included Lots A, B, C and D, when it was sold in 1953 to William Bert-hold. In 1957, Berthold received approval from the parish to resubdivide this property into the five lots now shown, and this resubdivision was duly recorded in the public records.

The present defendants acquired Lots A, B, C, and D, in 1983, and proposed to build one single family residence facing Orchard Road on each of the lots. Each lot has a frontage of more than sixty feet on Orchard Road, but none front upon, or have ingress and egress to Walter Road.

Upon learning of this proposed development, the plaintiffs sought to enjoin the defendants from building the houses. ■ The sole allegation in their petition was that Paragraph 6 of the restrictions specifically prohibited the building of houses facing Orchard Road.

After trial on the merits, the trial court found that Paragraph 6 of the restrictions was ambiguous, and therefore denied the injunction on the apparent grounds that ambiguities in building restrictions are to be construed in a manner favorable to unrestricted use of the immovable, La. Civ. Code, art. 783.

Plaintiffs now appeal, alleging two errors by the trial court. They contend, first, that it was error to find Paragraph 6 ambiguous, and second, that if any such ambiguity did exist, it was further error not to look to the entire context of the restrictions to resolve that ambiguity.

Before turning to plaintiffs’ arguments on these points, we first note that their petition did not challenge the 1957 resubdi-vision of Lot X. Further, when the defendants sought to put on evidence concerning that resubdivision Mr. Dupuis, a plaintiff, as well as counsel for all plaintiffs stated:

“Your Honor, I object to that line of questioning. The question of resubdivid-ing a lot in our subdivision is not a violation of our subdivision restrictions and I object to any line of questioning along these lines.”

With these facts in mind, we first address plaintiffs’ second allegation of error which is that the trial court failed to consider the restrictions in their entirety. Specifically, they point out that Paragraph 3, prohibits the construction of more than one house on any one lot, and requires that all lots have at least a sixty foot frontage. They further assert that when read together with the clause in Paragraph 6, which requires houses to face Walter Road, the clear conclusion is that further resubdivision of the lots as they appeared on the final 1955 plat is a violation of the restrictions.

While we appreciate the thrust of this argument, that issue is not before us. The simple fact is that the plaintiffs made a judicial admission at trial that resubdivision was not prohibited by the building restrictions, and such admissions cannot later be repudiated on appeal on the basis of an error of law, La.Civ.Code., art. 2291; Nunez v. Ricks, 262 So.2d 585 (La.App. 3rd Cir.1972).

We emphasize here that we do not resolve the question of whether the restrictions prohibit resubdivision of other lots in the subdivision. What we do hold is that because the plaintiffs admitted at trial that the resubdivision at issue here did not violate those restrictions, they are now precluded from asserting that claim against the present defendants in regard to Lots A, B, C and D, of Section F, as shown on the plat.

We finally turn to plaintiffs’ first allegation which is that the trial court erroneously found Paragraph 6, of the restrictions ambiguous. This paragraph consists of two distinct parts. The first sentence is a declaration by the developer that all lots face Walter Road and that he would not place utilities on any other street. The second sentence states that all houses must face Walter Road. However, the lots in question here do not face Walter Road. They thus do not fall within the declaration of the first sentence, and therefore the restriction of the second sentence is simply inapplicable to these properties. While we therefore agree with plaintiffs’ contention that the clause is not ambiguous and remains valid as to properties fronting on Walter Road, we conclude that it does not apply to properties otherwise situated.

For the foregoing reasons, the judgment of the trial court, denying the injunction is hereby affirmed.

AFFIRMED.

APPENDIX NO. 1


author: DOUCET, Judge.

text:
    LaSALLE PUMP & SUPPLY CO., INC., Plaintiff-Appellee, v. LOUISIANA MIDLAND RAILROAD CO., INC., Defendant-Appellant.
    No. 83-986.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 28, 1984.
    Writ Denied Jan. 25, 1985.

      H. James Lossin, Sr. and Louis Vogt, Hal J. Scott, Jonesville, for defendant-appellant.
    Peters, Hennigan & Walters, Lloyd E. Hennigan, Jr., Jena, for plaintiff-appellee.
    Before FORET, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

This case comes before us on appeal after we remanded it on an earlier appeal for the purpose of re-litigating the damage to the contents of a warehouse owned by La-Salle Pump & Supply Co. (hereinafter referred to as LaSalle), plaintiff-appellee, which were destroyed by a fire negligently caused by La. Midland Railroad Co. (hereinafter referred to as Midland), defendant-appellant. On remand the trial court held that the plaintiff had sufficiently proved these damages with competent evidence and awarded LaSalle $82,607.58 plus costs and legal interest from the date of judicial demand. Midland perfected this appeal.

This lawsuit arises from a fire which destroyed a warehouse and most of its contents. LaSalle, as the owner of the warehouse and most of its contents, filed this suit against Midland for these damages which it alleged were caused by Midland’s negligence. After a trial on the merits LaSalle was awarded damages in the amount of $78,000.00. Midland appealed the trial court’s judgment regarding this liability and the evidence used to prove the damage to the contents of the warehouse. In LaSalle Pump & Supply Co. v. Midland Railroad Co., 433 So.2d 745 (La.App. 3rd Cir.1982), writ denied, 435 So.2d 450, we held that Midland was negligent in causing the damaging fire and liable to LaSalle for whatever damages that were incurred. It was established that the warehouse was completely destroyed and after deducting the insurance payment, the actual monetary loss amounted to $1,269.60, which was part of the damage award. However, the extent and amount of the loss sustained by LaSalle from the destruction of the warehouse’s contents was vigorously disputed.

At the original trial the depositions of Mr. Robert Wilson, w;ho is an appraiser for LaSalle’s insurance company, and Mr. Thomas Bell, who is a clerk for LaSalle, were introduced over objection in order to prove the amount of the damage to the contents of the warehouse. Mr. Wilson’s testimony was based on an inventory compiled by Mr. Bell. Mr. Bell’s inventory was based upon an inventory of the destroyed items in the warehouse prepared by Mr. Sherman Ganey and Mr. Ray Melvin, who actually sifted through the debris of the fire and made lists of whatever destroyed items that they found. This original inventory, compiled by Mr. Melvin and Mr. Ga-ney, was then turned over to Mr. Bell who used this raw data to compile his final inventory with the assigned cost of the lost items. On the basis of this inventory, Mr. Bell and Mr. Wilson testified to the sum of the damages in court. As stated, these depositions were the sole evidence used at trial to prove the damage to the contents of the warehouse. On the basis of these depositions the trial court awarded damages to LaSalle.

Midland appealed and we held that the depositions used to compute the damages to the warehouse’s contents sustained by LaSalle were inadmissible hearsay. After affirming the judgment with respect to La-Salle’s fault in causing the fire, we remanded the case for the purpose of receiving additional competent evidence to prove La-Salle’s damages incurred by the destruction of the warehouse contents. Supra, 433 So.2d 745 (La.App. 3rd Cir.1982).

At the second trial Mr. Melvin and Mr. Ganey testified about their method and procedure in compiling their lists of the destroyed items. Both men testified that they alternated in sifting through the debris while the other wrote down each destroyed item as it was called out. Once an item had been called out and listed, it was separated from the immediate area in order to avoid counting an item twice. Furthermore, both men testified that under the instructions of the company president, Mr. David Bell, they only listed items that were totally destroyed and that were unquestionably the property of LaSalle. These instructions were necessary because some of the destroyed items in the warehouse were not the property of LaSalle. After these lists were completed, both men said that they were then turned over to Mr. Thomas Bell. Mr. Bell testified that he reorganized this raw data into a more organized inventory in order to facilitate the pricing of the destroyed items. According to Mr. Bell, the cost assigned to each item was the original wholesale cost and, based on this inventory, he computed the total loss incurred through damages to the warehouse’s contents. This inventory was introduced and identified at the trial.

The trial court held that with the supporting testimony of Mr. Ganey and Mr. Melvin, the final inventory prepared by Mr. Bell is not hearsay but is competent evidence which proves the extent and cost of the damage to the contents of the destroyed warehouse. With respect to the insurance proceeds, the trial court held that $6,000 was to be applied to the loss of the warehouse itself. The remaining $5,000 was to be applied to losses that were not included in the final inventory. Therefore, the $5,000 was not to be subtracted from the final award because it was not used to compensate LaSalle for losses incurred from the fire. The sum of $82,607.52 represented only the cost of the destroyed items in the warehouse which belonged to LaSalle. The trial court assessed Midland with costs of the litigation and awarded LaSalle legal interest from the date of judicial demand.

Midland assigned the following errors by the trial court:

SPECIFICATION OF ERRORS
1. The trial court erred in awarding damages when the plaintiff did not present additional competent evidence to prove the amount of damaged property.
2. The trial court erred in accepting into evidence hearsay evidence to determine the amount of the award.
3. The trial court erred in awarding damages based upon the assumption that the evidence presented was a qualified exception to the “Business records exception to the Hearsay Rule”.
4. The trial court erred in determining damages when the first collected records available or useable by the Court were not produced at the trial.
5. The trial court erred in awarding damages when the plaintiff did not carry the burden of proof in proving damages.
6. The trial court erred in not reducing the damages awarded to plaintiff by subtracting an amount equivalent to the value of the property owned by customers; which equipment was erroneously placed on plaintiffs inventory.
7. The trial court erred in not reducing the damages awarded by subtracting the salvage value and the subrogation check.
8. The trial court erred in awarding damages to non parties to the suit.
9. The trial court erred in assessing all costs of court against the defendant, when this court allocated one-half of the costs to each party.
10. The trial court erred in awarding interest from date of judicial demand when the defendant prevailed on appeal, because of plaintiffs lack of proof.

The first eight assignments of error can be disposed of together because they deal with the nature of the evidence used to prove damages and the impact of this evidence on the final damage sum awarded. The essence of the appellant’s argument is that without the original lists that were prepared by Mr. Melvin and Mr. Ganey, the final inventory of Mr. Bell remains inadmissible hearsay and, because this inventory is the basis of the plaintiffs proof of damages, their burden of proving damages was not sustained.

It is axiomatic that hearsay evidence is generally inadmissible as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn and are not available for cross-examination. LaSalle Pump & Supply Co., supra; Manuel v. American Employers Insurance Co., 212 So.2d 527 (La. App. 3rd Cir.1968). At the original trial on the merits, the depositions of Mr. Bell and Mr. Wilson were hearsay evidence because the deponents did not have first-hand knowledge of the substance of their testimony but instead relied on information provided to them by persons who did not testify at the trial or withstand the scrutiny of cross-examination. We originally remanded this case for the purpose of allowing LaSalle to provide the trier of fact with the testimony of persons with first-hand knowledge of the method and procedure used in actually determining which items were destroyed and how they got on their lists. On remand two additional witnesses testified in explicit detail about how the original list of destroyed items was prepared. Mr. Melvin and Mr. Ganey both testified that they actually sifted through the debris and listed only items that were totally destroyed and only the property of LaSalle. They testified that these lists were then given to Mr. Bell who testified that he used these lists as raw data in computing'the amount of the damage after these lists were reorganized and copied into a more coherent form. This final inventory was then introduced on remand in order to prove the damage to the contents of the warehouse caused by the fire.

The appellant argues that without the original lists compiled by Mr. Ganey and Mr. Melvin, the final inventory prepared by Mr. Bell remains inadmissible hearsay. This argument is without merit. The testimonies of Mr. Ganey and Mr. Melvin cured the hearsay character of the final inventory. No part of this testimony was based on information provided by someone unavailable to testify at the trial. The appellant was able to cross-examine each person who played a role in compiling the final inventory. The original lists of Mr. Ganey and Mr. Melvin are immaterial because both men testified under oath and subject to cross-examination about how they proceeded in compiling their lists and to whom they were given. Any discrepancies or questions of credibility with respect to the compilation of the final inventory would have been noticed by the trial judge who was the trier of fact in this case. The damages incurred by LaSalle resulting from the destruction of the contents of the warehouse was proved by a preponderance of competent evidence.

We find no error in the final damage sum awarded by the trial court in its judgment. Midland argues that the amounts for the possible salvage of damage items, the amount for destroyed property that did not belong to LaSalle, and $5,000 of the $11,000 insurance check should be subtracted from the final damage sum. These arguments are without merit. The trial court concluded, after hearing the testimony of those persons who calculated the final loss, that only totally destroyed items and only items clearly belonging to LaSalle were included in the final inventory. This conclusion is factual and will therefore not be disturbed on appeal because it is not clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Therefore none of these subtractions are warranted because only losses actually sustained by LaSalle were included in the inventory. We find no error in the final damage sum awarded by the trial court in its judgment.

Assignment of error number nine addresses the issue of legal costs. On the original appeal, the appellate costs were assessed equally between the parties pursuant to La.C.C.P. art. 2164. The appellant argues that because the original appeal did not stipulate that the costs assessed on the original appeal were merely appellate costs, the trial court was in error when it assessed litigation costs on the defendant in its judgment after the remand litigation. This argument is without merit. The original appeal assessed appellate costs only. The trial court was free to assess litigation costs on whichever party is deemed appropriate. The trial court’s assessment of litigation costs on the defendant-appellant is affirmed.

Finally, assignment of error number ten addresses the issue of legal interest. The appellant contends that because of the plaintiffs delays, the resolution of this matter was delayed. This argument is without merit. The trial court awarded legal interest to the plaintiff pursuant to La.C.C.P. art. 1921 which sanctions such an award as provided by law. LSA-R.S. 13:4203 provides for the award of legal interest from the date of judicial demand in damage suits. Although incompetent evidence was admitted and used in the first trial, this fact does not diminish the fact that the defendant-appellant’s negligence is solely responsible for the necessity of this lawsuit. The appellant’s argument is rejected and the trial court’s judgment is affirmed.

We consider this appeal to be frivolous, and according to La.C.C.P. art. 2164 an award in the amount of $1,250.00 is to be assessed against Midland.

For the foregoing reasons the judgment of the trial court is affirmed. Defendant-appellants are assessed the costs of this appeal.

AFFIRMED.